Monday, June 25, 2018

The Hidden Gem in New York Cent. R. Co. v. White (1917)

I would be the first to admit that I can be a hard-head. For years, some very sophisticated people have been trying to convince me that a citizen’s right to be free from invasions of property is hierarchically more important than a citizen’s right to be free from invasions of personal security. Because of that difference in status, the argument continues, the decision by a legislature to whittle away at workers’ compensation benefits (and by inference tort, and by further inference a right to a remedy to protect against invasions of personal security) need only have a “rational basis.”  Obviously, very few decisions by a legislature will lack some rational basis, whatever the legislation’s essential or true motivations. But what if Blackstone is right? What if the right to personal security is “absolute”? I told you I was a hard-head. And maybe that is because I come from a place where invasions of personal security (or fear thereof) are real and omnipresent. For some people, the fear of invasions of personal security is at least as important as guarantees of remedies for property deprivation.

I’m currently working on an article on foundational (early 20th century) understandings of “adequate benefits.” My research has me revisiting and reanalyzing New York Cent. R. Co. v. White,  243 U.S. 188 (1917). White was a case that said it might be doubted that the state could abolish all rights of action, or all defenses without setting up something adequate in their stead. But, said the Court, that situation wasn’t presented in the case at bar, the general quid pro quo made sense given the risks all parties faced in litigation, nothing about the scheme offended the 14th Amendment, and this was not to say that any scale of compensation, however insignificant or onerous would be supportable. But, again, in the case at bar, no one was challenging the amount of compensation. The issue was whether the New York system, which the Court obviously found reasonable, could lawfully be compulsorily applied to objecting employers or employees.

Today, however, my eyes were drawn, as if for the first time, to this passage:

The subject matter in respect of which freedom of contract is restricted is the matter of compensation for human life or limb lost or disability incurred in the course of hazardous employment, and the public has a direct interest in this as affecting the common welfare. ‘The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer.’ . . . . It cannot be doubted that the state may prohibit and punish self-maiming and attempts at suicide; it may prohibit a man from bartering away his life or his personal security; indeed, the right to these is often declared, in bills of rights, to be ‘natural and inalienable;’ and the authority to prohibit contracts made in derogation of a lawfully-established policy of the state respecting compensation for accidental death or disabling personal injury is equally clear.

This language was, of course, responding to the criticism that the (second attempt by New York at a) workers’ compensation statute had unconstitutionally interfered with the right of the employer and employee to contract out of coverage, in this case for extrahazardous occupations. (Essentially, a Lochner argument). The Court’s response was that the right to life or personal security were “natural and inalienable.” In other words, the court essentially said, “we won’t permit contracting out of a lawfully-established policy where the inalienable right to personal security is bartered away.” This hard-head continues to believe that the Supreme Court first authorizing a compulsory workers’ compensation scheme really did have in mind a baseline of benefits (would that it had clarified it!) beneath which workers’ compensation would become insignificant and not supportable. Neither individuals nor legislatures may barter away the inalienable right of personal security. Occasionally, even hard-heads find hidden gems.

Michael C. Duff

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