My Dearest Gentlefolk,

Sending out my Monday Muse on a Tuesday evening appears to be becoming an unfortunate habit. With any luck, and a little preparation, the promise of the name ("Monday Muse") will be fulfilled once again next week. In the mean time, I offer the following passage, drawn from the darker pages of our nation's jurisprudence (though not, I am afraid to admit, the darkest):

"The right of a person to sell his labor upon such terms as he deems proper, is in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee. ... In all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land."

Justice Harlan, speaking for the Court in Adair v. U.S., 208 U.S. 161, 174-175, 28 S.Ct. 277, 280 (1908).

Thus the Court struck down a law enacted to protect the right of transportation workers to unionize. The holding, and its guiding rationale have been justly rebuked by many lawyers, judges, politicians, labor leaders, scholars, and interested observers in the decades that followed. Its teaching has faded, and its force has dispersed. We hear the words, we see the players, we know that nothing could be farther from truth than the equal "liberty" enjoyed by employer and employee. So why does Harlan's argument trouble us? Why is his word play so powerfully disturbing? Is it fair to assume that you are as disturbed by Harlan's analysis as I?

Crystalline logic has a way of running its own course. Harlan's words echo a basic democratic assumption: that liberty demands equality of prerogative. What could be more democratic than the juridical equality of buyer and seller? Two weeks ago, we visited the observations of Robert Hale, Monday Muse v.1 n.8 (November 29, 1999), who vigorously attacked the notion that a blind "protection" of property is necessarily liberty-enhancing. Harlan's formalistic logic was a further implicit target, but primarily in terms of its "realistic" impact on the relative power of workers and employers. But Harlan's words are powerful by virtue of their clarity, and the sense in which they seem to agree with basic American dogma. If we are not to loose faith in reason, or in the possibility of equal liberty ("liberal equality"?), we must find something wrong with this analysis other than its disagreeable lesson to labor.

The trick to watch, the error to guard against, is the equivocation of "right" in transactional analysis. Harlan was not the first, nor will he be the last, to take advantage of our implicit assumption of symmetry in a binary exchange. When Paul exchanges his apple for Mary's orange, and Mary vice versa, it will be voluntary just to the extent that Paul would rather have the orange and Mary the apple. Or so we assume. Harlan's assumption carries us even further. He asks us to believe that Paul and Mary are each made wealthier as a result of the transaction in equal degree. That is Paul prefers Mary's orange just as much as Mary prefers Paul's apple.

Of course, laying things out like this makes it all look rather silly. No one would really contend that a free exchange is only possible if Paul and Mary are trying to satisfy their own desire to possess or consume the other's fruit, or that both of them enjoy EQUALLY the fruits of exchange. We seem to take these conclusions for granted because it simplifies our expectations. As a shorthand it works rather well. Paul REALLY likes oranges. Mary has an orange. Mary REALLY likes apples. Paul has an apple. Put the two together, and BANG, an exchange takes place, Paul and Mary happily consume their preferred fruit, the world is a better place, and capitalism has just vindicated Mom, Apple Pie, and the American way.

We like to think that Harlan is wrong because he thinks too abstractly. But his abstraction is doomed from the start. An exchange is never just an exchange, particularly when the units of exchange are incommensurable. Consider: The employer is willing to surrender money (a freely transferable asset) in exchange for the goods or services produced by the worker (often using raw materials, machinery, etc., also controlled by the employer); The employee is "willing" to surrender her time (a use-it-or-loose-it asset) in exchange for money. The benefit accruing to the employer is to the employer alone. The benefit accruing to the employee is to the family unit. The phantom of symmetry is wounded, but is it dead?

Harlan asserts that "the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee". See above. Let us see if he is correct. In what does the power of quitting consist for the employee? By quitting the employee reclaims her time, and loses a principal source of market power accruing to her self, and to her family. In what does the power of firing consist for the employer? By firing, the employer reclaims the salary, and loses a percentage of productivity accruing to its exclusive benefit. When are these powers in logical equilibrium? A balance is struck only when the employer and employee are of equal number, when the employer and employee are identically replaceable, and when the employee risks only her personal fortune. Harlan's fantasy knows no bound but this: A single employee is already a union.

This is not so much a defense of organized labor as it is a challenge to an unregulated labor market. Indeed, even the name "market" may be a tragic malapropism when used to describe the ritualistic exchange of money for labor that has enabled all modern achievements of collective human endeavor.

David Robert Foss