The Liberty to Trade as Buttressed by National Law/Restraints through Invading Liberty

by George Howard Earle, Jr.

CHAPTER VIII

Restraints Through Invading Liberty

There are certain rights which the Constitution of the United States protects from State invasion—they are many;—but a few which it especially cherishes by protecting them from both State and individual invasion. Broadly speaking, general inherent rights are of the former class, while those which originate in the Constitution itself are alone of the latter. I am not attempting to state this with exactness, or that it may be definitely relied upon, but as a view generally and alone for another purpose. Now, while "liberty" is of the former class, liberty to engage in national trade is of the select few in the higher class coming under the direct protection of the national law, no matter by whom invaded.

While the Constitution leaves the great body of liberty to the protection of the States, except where invaded by the States, it also recognizes it as an "inalienable" right, and protects it even from the States themselves. It can, therefore, in no degree be doubted that liberty is a right of every citizen of the United States. But what is liberty? Simply "the power of election or free choice." "In this consists freedom, viz: in our being able to act or not to act as we shall choose or will."^[1] As at common law, no invasion of "free discretion," that is, liberty to engage in one's own unsold trade,^[2] is ever permitted,^[3] so under the national law even a sovereign State cannot burden National trade by withholding any part of the discretion of the owner to engage in it, even in exercise of its vital right of taxation; indeed, "if such a tax can be levied at all, its amount will rest in the discretion of the State. It is idle to say that the interests of the State would prevent oppressive taxation. Those engaged in foreign and interstate commerce are not bound to trust to its moderation in that respect; they require security."^[4]

Many and magnificent have been the opinions of the Supreme Court in defence of this right; none finer than those of Justices Harlan, Bradley, Field, and Woods in Butchers vs. Crescent,^[5] or of Mr. Justice Peckham in Allgeyer vs. Louisiana.^[6]

No one can longer doubt that every citizen acting individually or with others has, as part of his liberty, freedom of choice as to engaging in trade. Indeed, "liberty" has recently been denominated by the Supreme Court itself as "the greatest of all rights."^[7]

But, as has been said, the right to engage in national trade emanates from and is protected by the Constitution itself and not from any State's will or grant.^[8]

It always must be remembered that it is a right arising under the Constitution itself with all that such right implies—a right that exists and that might have to be considered independently of the Sherman Act.^[9] It is manifest, therefore, that where there is a right arising from the invasion of such a right, there must be a remedy, and a remedy entirely independent of the questions of policy involved in merely contractual restraints. Possibly, indeed, independent of the Sherman Act itself. If the doctrine of Ashby vs. White is applicable to the invasion of a nationally granted right, certainly so!

However this may be, a restraint of national trade, by limiting the freedom of choice as to engaging in it, must be an illegal restraint under the Sherman Act, if the restraint be involuntarily suffered.

And so it has always been held!

The subject is so completely covered by Chief Justice Fuller in Loewe vs. Lawlor,^[10] that other cases need not be referred to:

"The act prohibits any combination whatever to secure action which essentially obstructs the free flow of commerce between the States, or restricts in that regard the liberty of a trader to engage in business. The combination charged falls within the class of restraints of trade aimed at, compelling third parties and strangers involuntarily not to engage in the course of trade except on conditions that the combination imposes; and there is no doubt that (to quote the well known work of Chief Justice Erle on Trades Unions) 'at common law every person has individually, and the public also has collectively, a right to require that the course of trade should be kept free from unreasonable obstruction.'"

So it may be taken for granted that any one damaged by a conspiracy against the liberty of a citizen or corporation to engage in national trade, must be entitled to an action for that damage. And that it is in its nature simply a case of molestation at common law, involved with none of the intricacies of the subject which is being generally considered.

An important consideration in this connection is that this liberty to engage in national trade is one—perhaps the only form of liberty per se belonging to corporations, and which the States themselves cannot invade. "The power to regulate that" (interstate commerce) * * * "is the power * * * to determine when it shall be free. * * * Nor does it make any difference whether such commerce is carried on by individuals or corporations."^[11] As was said in Paul vs. Virginia:^[12] "At the time of the formation of the Constitution, a large part of the commerce of the world was carried on by corporations. * * * The grant of power is general in its terms, making no reference to the agencies by which commerce may be carried on. It includes commerce by whomsoever conducted, whether by individuals or corporations."^[13]

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1. Locke, H. U. ii, xxi, 27.
2. Ipswich Tailor's Case, 2 Coke R. 53a.
3. Hilton vs. Eckersley, 6 E. & B. 47, 66 (1855).
4. Field, J., Gloucester Ferry Co. vs. Pennsylvania, 114 U. S., p. 205 (1885).
5. 111 U. S. 754, 760 (1884).
6. 165 U. S. 589 (1897).
7. Jacobson vs. Massachusetts, 197 U. S. 26, 27 (1905).
8. Vance vs. Vandercook, 170 U. S. 438 (1898). See, too, In re Debs, 158 U. S. 564 (1895).
9. See In re Debs, 158 U. S. 564 (1895).
10. 208 U. S. 274 (1908).
11. Welton vs. Missouri, 91 U. S. 275 (1875); Mobile vs. Kimball, 102 U. S. 691 (1880).
12. 8 Wallace 168 (1868-9).
13. Mr. Justice Field, 114 U. S., p. 203 (1885). And see Vance vs. Vandercook, 170 U. S. 433 (1898).