05/19/2017

The Progressives Took Away Our Right To Contract. It's Time To Reclaim It

Eddie Stamper, Competitive Enterprise Institute

According to surveys, 77 percent of millennials want flexible work hours, which many say makes them more productive at work. Yet some recent employment regulations aim at making work hours more regular.

The tension between the wants of younger workers and the demands of employment regulators could lead to the resurgence of a battle last fought between the world wars. Freedom of contract lost the last time around. Could it be different this time?

The battle was over “the right to earn a living,” as the Goldwater Institute’s Timothy Sandefur succinctly puts it.

Sandefur’s review of the history of this right goes all the way back to the great English jurist Sir Edward Coke, who used principles established in Magna Carta to declare, “At the common law, no man could be prohibited from working at any lawful trade.” Furthermore, “By the very common law, it was lawful for any man to use any trade thereby to maintain himself and his family; this was both lawful, and also very commendable.”

Common law allowed anyone to enter into contractual negotiations with another party to ply a trade. Therefore, the King’s attempts to impose monopolies were unlawful.

This right persisted for centuries. It was celebrated at the American Founding by Thomas Jefferson, who said, “Every one has a natural right to choose for his pursuit such one of them as he thinks most likely to furnish him sustenance” (sources for this and the following quotes can be found in Sandefur’s article.)

Attacking the Right To Contract

It was important to abolitionist thought, with Frederick Douglass commenting on his first contracted job, “I was not only a freeman but a free-working man, and no Master Hugh stood ready at the end of the week to seize my hard earnings.”

Yet, as Sandefur chronicles, the right to contract with anybody you choose on your own terms came under strong attack during the Progressive era.

 

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