H.L. Mencken
Baltimore Evening Sun/January 17, 1921
I.
“It is the greatest defense of human liberty that has come down from the United States Supreme Court for many years.” I quote from the exultation of the Hon. Walter Gordon Merritt, LL. B., counsel for the Duplex Printing Press Company, of Battle Creek, Mich., in the great case of Duplex P. P. Co. vs. Deering et al. This vexed and difficult case came before the learned justices on appeal from the United States Court of Appeals for the Second Circuit, to which court, in turn, it had come on appeal from the United States District Court for the Second District of New York. The Duplex Company was the appellant; both of the lower courts had decided in favor of Deering et al. But on Monday, January 3, the Supreme Court, with Holmes, Brandeis and Clark, JJ. dissenting, decided against them, finally and irrevocably—and, as the Hon. Mr. Merritt hints, the day deserves to be long remembered by all connoisseurs of liberty, law, justice and the Constitution.
Let us examine the issues briefly. The Duplex Printing Press Company manufactures printing presses and other machinery, and has been at odds with the International Association of Machinists (the machinists’ union) for eight or ten years. The union wants to unionize the company’s shops completely; the company sticks to the principle of the open shop. In 1913, unable to bring the company to its way of thinking, the union decided to appeal to other unions. That is to say, it asked the members of these other unions—for example, truckmen—to refuse to haul presses made by the company. More, it requested the members of its own organization in other cities to refuse to set up such presses. Whereupon the company began suit against Deering et al., officers of the union, under the Sherman Antitrust act, asking for an injunction restraining them from any and all such doings.
II.
That was in 1914. When the case came to trial before the district court the attorneys for the union pointed to the Clayton act amending the Sherman act, arguing that the former plainly excepted labor unions and farmers’ organizations from the operations of the latter. The court accepted that view and found for the defendants. The company then appealed to the Circuit Court of Appeals. Here the attorneys for the union made the same contention and found the same support. Then the company appealed to the Supreme Court of the United States, and after the long delays proper to such august affairs, the case was heard, considered and decided.
The decision is a flat and overwhelming defeat of the union, and with it of one of the main principles upon which all organized labor depends. In essence, the Court decides that when they are fighting one employer the unions cannot seek the active aid of men working for other employers—that they cannot lawfully make use of the weapons of the secondary boycott and the sympathetic strike. To do so, it says, is “to inflict damage upon the immediate employer, between whom and his employes no dispute exists, in order to bring him against his will into a concerted plan to inflict damage upon another employer who is in dispute with his employes.” In other words, every union must stand upon its own bottom. If a union of brickmakers, locked out by a brick manufacturer, asks the bricklayers to refuse to lay his nonunion bricks, then it can be restrained under the Sherman act, Clayton act or no Clayton act, and mulcted in damages.
I am no lawyer, but this seems to me to be the noblest victory that capitalism has won since the celebrated decision against the child labor laws. It simply knocks the eternal daylights out of the Clayton act. Nothing even remotely resembling a general strike is now possible. Let the steel workers, calling one presume to ask the railroad men to help them, and at once the lash of the law will be upon them, and if lashing doesn’t bring them to terms, then General Wood will be turned out with his janissaries and they will taste lead.
III.
As I have often stated in this place, I am strongly in favor of capitalism, and rejoice whenever it wins a victory. I hope to live long enough to see slavery re-established in the United States, absolutely without respect to color, and to see it made treason by a constitutional amendment for a slave to stick out his tongue at his master. But I am not so dense that I forget the existence of other Americans, not legally insane, who hold views of a different order, and sometimes I wonder what these misguided fellows think when they examine the recent trend of decisions in our higher courts.
When the Hon. Mr. Merritt says that this Duplex decision is “the greatest defense of human liberty that has come down from the United States Supreme Court for many years,” one needs but accept his definition of liberty to see that he speaks the literal truth. But turn to any other definition—to any of the older definitions—and the Court’s record is an absolute blank. Not once during all the astounding tyrannies of the war time did the learned justices venture to call a halt upon the obscene farce. Now and then, true enough, one or two of them protested, but always the majority was against him—always the Court decided in favor of the prosecution. It was so in the case against the young Russians sentenced to 10 and 20 years for protesting against the Russian blockade. It was so in all of the I. W. W. cases. It was so in the Debs case. It was so in every case arising out of the gross and infamous abuse of power by the Post office.
IV.
One always hears from lawyers, in defense of this unbroken line of decisions against the very elements of sense, liberty and common fairness, that the courts have nothing to do with justice—that their sole concern is with what is law. But is this strictly true? As I say, I am not learned in the law, but it seems to me that I have heard of the application of “the rule of reason” to its interpretation—in other words, of an appeal from the text to the canons of a larger and more fluent justice. Well, what became of that “rule of reason” when the Supreme Court decided that a poor and miserable young Russian girl, outraged by the sufferings of her people at home, could be sent to prison for 10 years for making an orderly protest against the invasion of a country with which the United States was not at war? What became of the “rule of reason” when the Postoffice was permitted to suppress all sorts of publications out of hand, ruining their owners without so much as a hearing? What part will it play when the Chicago I. W. W. cases come up, and a citizen of the United States pleads that, at the time of the conspiracy, he stands convicted of taking a hand in, he was actually in jail?
What is the plain man to think of such things? On the one hand he hears of a “great defense of human liberty” that obviously forbids one poor man to ask another to help him. On the other hand, he notes that that Russian girl is still in prison. Some day, perhaps, he will begin to ask himself what all the solemn business is about—what he gets out of all this costly machinery of justice. When he asks that question it will be a blue day for the courts and a black day for the United States.
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