The "Constitution of Opportunity" in Politics and in the Courts

[...]in a more optimistic vein, I explore what the constitution of opportunity could amount to as a legal matter, particularly in the labor arena. The high water mark of the constitution of opportunity in the supreme Court might be its blockbuster Jones & Laughlin Steel2 decision upholding the National Labor Relations Act (NLRA) against both Commerce Clause and liberty of contract objections.3 The biggest surprise was the decision's broad reading of Congress's commerce power, for the constitutional liberty of contract had been cut down to size two weeks earlier in West Coast Hotel Co. v. Parrish,4 which upheld a state minimum wage law against the claim that it infringed the constitutional liberty of both parties to the employment contract to set whatever terms they chose.5 But Jones & Laughlin decimated what remained of the liberty of contract in upholding an order to reinstate employees fired for union activity.6 Not so many years earlier, in Adair v. United States,7 the Court had struck down a ban on anti-union discrimination, holding that "it is not within the functions of government . . . to compel any person, in the course of his business and against his will to accept or retain the personal services of another.