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 Final PDF to printer

Essentials of
Contemporary
Management
Ninth Edition

Gareth R. Jones
Jennifer M. George
Rice University

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 Final PDF to printer

viii Preface

• New end-of-chapter case on DTE Energy and and development, as well as improving custom-
company efforts to reenergize its workforce with ers’ online shopping experiences.
a shared sense of purpose to cut costs and avoid • New “Focus on Diversity” on using recruiting
layoffs. practices that promote diversity.
Chapter 10 • New section that discusses recent trends in per-
• New “Management Snapshot” on effective lead- formance appraisal strategies.
ership strategies at the Dana-Farber Cancer • New end-of-chapter case on how Salesforce sets
Institute. itself apart in a tight labor market.
• New section on the traits of servant leadership.
Chapter 13
• New “Managing Globally” on international dif- • Chapter content has been streamlined to focus
ferences in leadership. on the key components of effective communica-
• New “Management Insight” on the effective- tion at all levels of the organization. Technology
ness of leaders with high levels of emotional discussion has moved to Chapter 14.
intelligence. • New “Management Snapshot” on ways Boston
• New end-of-chapter case on how the CEO of Consulting Group encourages its employees to
Levi Strauss uses effective leadership strategies engage in short, informal interactions with col-
to help the company and its employees succeed. leagues as way of increasing communication
and reducing the need for lengthy meetings.
Chapter 11
• New “Management Snapshot” on how the U.S. • New “Manager as a Person” profiles the
Army’s use of teamwork helps in the battle cofounders of Hyphen, a technology platform
against bureaucracy. that lets businesses gather and analyze anony-
mous communications from employees.
• New “Management Insight” on the importance
of team members developing soft skills. • New “Ethics in Action” on how the use of ques-
tions can foster effective communication.
• New discussion on the skills and abilities of suc-
cessful virtual teams and the technology they use • New “Management Insight” on how to make a
to help with their long-distance work activities. positive first impression.
• New “Focus on Diversity” that provides strate- • New end-of-chapter case on how Netflix aims
gies for using team members’ diversity as a com- to keep communication honest throughout the
petitive advantage. organization.
• New discussion on recent research about high- Chapter 14
performing teams and the factors that contrib- • Chapter has been revised to include a discussion
ute to their success. of how information and technology help manag-
• New end-of-chapter case on how Adient, the ers make better decisions, linking this content
world’s largest supplier of automotive seating, to the discussion of operations management.
uses high-performance teams to maintain its • New “Management Snapshot” on Kraft Heinz’s
competitive edge. efforts to make sure managerial decisions add
Chapter 12 value to the company.
• New “Management Snapshot” on Unilever’s • New “Management Insight” on the use of arti-
chief human resource officer and how she man- ficial intelligence to help identify situations
ages workforce planning and development at within an organization that require more active
the global consumer products company. leadership on the part of managers.
• New “Management Insight” on Home Depot’s • New “Ethics in Action” on why Facebook users
CEO and his competitive strategy of using eco- are quitting the social networking platform over
nomic slowdowns to invest in employee training privacy issues.

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 Final PDF to printer

Preface ix

• New “Managing Globally” feature on Happy explains their significance to practicing managers.
OrNot—a Finnish company that captures cus- In Chapter 6, we provide an integrated treatment
tomer sentiments about their shopping experi- of planning, strategy, and competitive advantage,
ences via in-store terminals labeled with four highlighting the crucial choices managers face as
different happy or sad faces. they perform the planning function. Throughout
• New end-of-chapter case on how Brooks Broth- the text, we emphasize important issues managers
ers redesigned its processes to make the cloth- face and how management theory, research, and
ing retailer more relevant and more efficient. practice can help them and their organizations be
effective.
We feel confident that the changes to the ninth The last two chapters cover the topics of com-
edition of Essentials of Contemporary Management munication, operations management, and technol-
will stimulate and challenge students to think ogy, subjects that tend to be difficult to teach to
about their future in the world of organizations. new management students in an interesting way.
We have streamlined the chapters in an effort to
highlight the key concepts students need to know
Emphasis on Applied and understand when it comes to how managers
address these important processes.
Management
We went to great lengths to bring the manager
back into the subject matter of management.
Flexible Organization
That is, we wrote our chapters from the perspec- We designed the grouping of chapters to allow
tive of current or future managers to illustrate, in instructors to teach the chapter material in the
a hands-on way, the problems and opportunities order that best suits their needs. Instructors are not
they face and how they can effectively meet them. tied to the planning, organizing, leading, and con-
For example, in Chapter 3, we provide an inte- trolling framework, even though our presentation
grated treatment of ethics and diversity that clearly remains consistent with this approach.

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 Final PDF to printer

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Course Design and Delivery

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xii

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Course Design and Delivery xiii

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Acknowledgments
Finding a way to integrate and present the rapidly We extend our special thanks to the faculty who
growing literature on contemporary management gave us detailed chapter-by-chapter feedback dur-
and make it interesting and meaningful for stu- ing the development of the ninth edition:
dents is not an easy task. In writing and revising
Joseph Aranyosi, University of Phoenix
the various editions of Essentials of Contemporary
William Belcher, Troy University
Management, we have been fortunate to have had
Cydna Bougae, Montclair State University
the assistance of several people who have con-
Marcia Simmering Dickinson, Louisiana Tech
tributed greatly to the book’s final form. First, we
University
are grateful to Michael Ablassmeir, our executive
Carla C. Flores, Ball State University
brand manager, for his support and commitment
Dana Frederick, Missouri State University
to our project, and for always finding ways to pro-
Shahbaz Gill, University of Illinois at
vide the resources that we needed to continually
Urbana–Champaign
improve and refine our book. Second, we are grate-
Terry A. Girdon, Pennsylvania College of
ful to Haley Burmeister, our product developer,
Technology
for so ably coordinating the book’s progress, and
Joanne Hartsell, East Carolina University
to her and Deb Clare, our marketing manager, for
Anne Kelly Hoel, University of Wisconsin–Stout
providing us with concise and timely feedback and
Tammy G. Hunt, University of North Carolina,
information from professors and reviewers that
Wilmington
have allowed us to shape the book to the needs of
Tiffany Maldonado, University of Houston
its intended market. We also thank David Hash
Downtown
for executing an awe-inspiring design and Maria
Marina Sebastijanovic, University of Houston
McGreal for coordinating the production process.
Joanna Shaw, Tarleton State University
We are also grateful to the many colleagues and
Brandi L. Ulrich, Anne Arundel Community
reviewers who provided us with useful and detailed
College
feedback, perceptive comments, and valuable sug-
gestions for improving the manuscript. Our thanks to these faculty who have contrib-
Producing any competitive work is a challenge. uted greatly to previous editions of Essentials of
Producing a truly market-driven textbook requires Contemporary Management:
tremendous effort beyond simply obtaining reviews
Garry Adams, Auburn University
on a draft manuscript. Our goal behind the develop-
M. Ruhul Amin, Bloomsburg University of
ment of Essentials of Contemporary Management has
Pennsylvania
been clear-cut: to be the most customer-driven essen-
Fred Anderson, Indiana University of Pennsylvania
tials of management text and supplement package
Jacquelyn Appeldorn, Dutchess Community
ever published! The favorable reception that our book
College
has received from its users suggests that our thor-
Barry Armandi, SUNY–Old Westbury
ough product development plan did lead to a book
Dave Arnott, Dallas Baptist University
that has met the expectations of both faculty and stu-
Debra Arvanites, Villanova University
dents. For the new edition, we have continued to add
Douglas E. Ashby, Lewis & Clark Community
new reviewers to the more than 200 faculty who orig-
College
inally took part in developmental activities ranging
Joe Atallah, Devry University
from regional focus groups to manuscript reviews
Kenneth E. Aupperle, The University of Akron
and surveys. Consequently, we’re confident that the
Barry S. Axe, Florida Atlantic University
changes we have made to our book and its excellent
Andrea D. Bailey, Moraine Valley Community
support package will even more closely meet your
College
expectations and needs.

xiv

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 Final PDF to printer

Acknowledgments xv

Jeff Bailey, University of Idaho Kent Curran, University of North Carolina

Robert M. Ballinger, Siena College Arthur L. Darrow, Bowling Green State University
Moshe Banai, Bernard M. Baruch College Tom Deckelman, Walsh College
Frank Barber, Cuyahoga Community College D. Anthony DeStadio, Pittsburgh Technical
Reuel Barksdale, Columbus State Community Institute
College Ron DiBattista, Bryant College
Sandy Jeanquart Barone, Murray State University Thomas Duening, University of Houston
Lorraine P. Bassette, Prince George’s Community Charles P. Duffy, Iona College
College Steve Dunphy, The University of Akron
Gene Baten, Central Connecticut State University Subhash Durlabhji, Northwestern State University
Myra Jo Bates, Bellevue University Robert A. Eberle, Iona College
Josephine Bazan, Holyoke Community College Karen Eboch, Bowling Green State University
Hrach Bedrosian, New York University Robert R. Edwards, Arkansas Tech University
William Belcher, Troy University Susan Eisner, Ramapo College of New Jersey
Omar Belkhodja, Virginia State University William Eldridge, Kean College
James Bell, Texas State University–San Marcos Pat Ellsberg, Lower Columbia College
Ellen A. Benowitz, Mercer County Community Stan Elsea, Kansas State University
College Scott Elston, Iowa State University
Stephen Betts, William Paterson University Joseph Eshun, East Stroudsburg University
Jack C. Blanton, University of Kentucky Judson Faurer, Metro State College of Denver
David E. Blevins, University of Arkansas at Little Dale Finn, University of New Haven
Rock Joseph Fitzgerald, Siena College
Mary Jo Boehms, Jackson State Community College Charles Flaherty, University of Minnesota
Karen Boroff, Seton Hall University Alisa Fleming, University of Phoenix
Jennifer Bowers, Florida State University Lucinda Fleming, Orange County Community
Barbara Boyington, Brookdale Community College College
Dan Bragg, Bowling Green State University Robert Flemming, Delta State University
Charles Braun, Marshall University Jeanie M. Forray, Eastern Connecticut State
Dennis Brode, Sinclair Community College University
Gil Brookins, Siena College Marilyn L. Fox, Minnesota State University
Murray Brunton, Central Ohio Technical College Mankato Ellen Frank, Southern Connecticut State
Patricia M. Buhler, Goldey-Beacom College University
Judith G. Bulin, Monroe Community College Tracy Fulce, Oakton Community College
David Cadden, Quinnipiac College Joseph A. Gemma, Providence College
Thomas Campbell, University of Texas–Austin Neal Gersony, University of New Haven
Thomas Carey, Western Michigan University Donna H. Giertz, Parkland College
Barbara Carlin, University of Houston Leo Giglio, Dowling College
Daniel P. Chamberlin, Regents University–CRB Camille Girardi-Levy, Siena College
Larry Chasteen, Stephen F. Austin State University David Glew, Texas A&M University
Raul Chavez, Eastern Mennonite University Carol R. Graham, Western Kentucky University
Nicolette De Ville Christensen, Guilford College Matthew Gross, Moraine Valley Community
Anthony A. Cioffi, Lorain County Community College
College John Hall, University of Florida
Sharon F. Clark, Lebanon Valley College Eric L. Hansen, California State University–Long
Sharon Clinebell, University of Northern Colorado Beach
Dianne Coleman, Wichita State University Justin U. Harris, Strayer College
Elizabeth Cooper, University of Rhode Island Allison Harrison, Mississippi State University
Anne Cowden, California State Sandra Hartman, University of New Orleans
University–Sacramento Brad D. Hays, North Central State College
Thomas D. Craven, York College of Pennsylvania Gary Hensel, McHenry Community College

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 Final PDF to printer

xvi Acknowledgments

Robert A. Herring III, Winston-Salem State Bryan Malcolm, University of Wisconsin

University Z. A. Malik, Governors State University
Eileen Bartels Hewitt, University of Scranton Mary J. Mallott, George Washington University
Stephen R. Hiatt, Catawba College Christine Marchese, Nassau Community College
Tammy Bunn Hiller, Bucknell University Jennifer Martin, York College of Pennsylvania
Adrienne Hinds, Northern Virginia Community Lisa McCormick, Community College of Allegheny
College County
Anne Kelly Hoel, University of Wisconsin–Stout Reuben McDaniel, University of Texas
Eileen Hogan, Kutztown University Robert L. McKeage, The University of Scranton
Jerry Horgesheiner, Southern Utah State John A. Miller, Bucknell University
Gordon K. Huddleston, South Carolina State Richard R. J. Morin, James Madison University
University Don Moseley, University of South Alabama–Mobile
John Hughes, Texas Tech University Behnam Nakhai, Millersville University of
Larry W. Hughes, University of Nebraska at Pennsylvania
Kearney Robert D. Nale, Coastal Carolina University
Tammy Hunt, University of North Daniel F. Nehring, Morehead State University
Carolina–Wilmington Thomas C. Neil, Clark Atlanta University
Gary S. Insch, West Virginia University Brian Niehoff, Kansas State University
Charleen Jaeb, Cuyahoga Community College Judy Nixon, University of Tennessee
Velma Jesser, Lane Community College Cliff Olson, Southern Adventists University
Richard E. Johe, Salem College Karen Overton, HCC–Northeast College
Gwendolyn Jones, The University of Akron Audrey Parajon, Wilmington University
Kathy Jones, University of North Dakota Ralph W. Parrish, University of Central Oklahoma
Marybeth Kardatzke, North Harris Montgomery Dane Partridge, University of Southern Indiana
Community College District Sheila J. Pechinski, University of Maine
Jim Katzenstein, California State University– Marc Pendel, Ball State University
Dominguez Hills Fred Pierce, Northwood University
Jehan G. Kavoosi, Clarion University of Mary Pisnar, Baldwin Wallace College
Pennsylvania Laynie Pizzolatto, Nicholls State University
Robert J. Keating, University of North Carolina at Eleanor Polster, Florida International University
Wilmington Paul Preston, University of Texas–San Antonio
Frank Khoury, Berkeley College Samuel Rabinowitz, Rutgers University–Camden
Peggi Koenecke, California State Gerald Ramsey, Indiana University Southeast
University–Sacramento Charles Rarick, Transylvania University
Donald Kopka, Towson University Deana K. Ray, Forsyth Technical Community
Dennis Lee Kovach, Community College of College
Allegheny County–North Campus Robert A. Reber, Western Kentucky University
Mark Kunze, Virginia State University Bob Redick, Lincoln Land Community College
Ken Lehmenn, Forsyth Technical Community Douglas Richardon, Eastfield College
College Michael Riley, Gateway Community and Technical
Lianlian Lin, California State Polytechnic College
University Tina L. Robbins, Clemson University
Grand Lindstrom, University of Wyoming Deborah Britt Roebuck, Kennesaw State
John Lipinski, Robert Morris University University
Mary Lou Lockerby, College of DuPage Harvey Rothenberg, Regis University
Esther Long, University of Florida Catherine Ruggieri, St. John’s University
E. Geoffrey Love, University of Illinois George Ruggiero, Community College of Rhode
George S. Lowry, Randolph–Macon College Island
George E. Macdonald Jr., Laredo Community Kathleen Rust, Elmhurst College
College Robert Rustic, University of Findlay

jon61530_fm_i-1.indd xvi 10/22/19 06:20 PM

Visit https://testbankfan.com
now to explore a rich
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Acknowledgments xvii

Cyndy Ruszkowski, Illinois State University Scott Taylor, Moberly Area Community College
Nestor St. Charles, Dutchess Community College Jerry L. Thomas, Arapahoe Community College
Lynda St. Clair, Bryant College Joe Thomas, Middle Tennessee State University
Michael Santoro, Rutgers University Kenneth Thompson, DePaul University
John L. Schmidt Jr., George Mason University John Todd, University of Arkansas
Gerald Schoenfeld Jr., James Madison University Thomas Turk, Chapman University
Don Schreiber, Baylor University Isaiah Ugboro, North Carolina A & T University
Robert Schwartz, University of Toledo Brandi Ulrich, Anne Arundel Community College
Marina Sebastijanovic, University of Houston Linn Van Dyne, Michigan State University
Amit Shah, Frostburg State University Jaen Vanhoegaerden, Ashridge Management
Joanna Shaw, Tarleton State University College
Michael Shapiro, Dowling College Barry L. Van Hook, Arizona State University
Raymond Shea, Monroe Community College Gloria Walker, Florida Community College
Richard Ray Shreve, Indiana University Northwest Stuart H. Warnock, University of Southern
Sidney Siegel, Drexel University Colorado
Thomas D. Sigerstad, Frostburg State University Tommy Lee Waterson, Northwood University
Roy L. Simerly, East Carolina University Philip A. Weatherford, Embry-Riddle Aeronautical
Randi L. Sims, Nova Southeastern University University
Sharon Sloan, Northwood University Ben Weeks, St. Xavier University
Erika E. Small, Coastal Carolina University Emilia S. Westney, Texas Tech University
Andrea Smith-Hunter, Siena College Donita Whitney-Bammerlin, Kansas State
Brien Smith, Ball State University University
Marjorie Smith, Mountain State University Robert Williams, University of North Alabama
Nayrie Smith, Miami Dade College W. J. Williams, Chicago State University
Raymond D. Smith, Towson State University Shirley A. Wilson, Bryant College
William A. Sodeman, University of Southern Robert H. Woodhouse, University of St. Thomas
Indiana Michael A. Yahr, Robert Morris College
Carl J. Sonntag, Pikes Peak Community College D. Kent Zimmerman, James Madison University
Robert W. Sosna, Menlo College
Finally, we are grateful to two incredibly won-
William Soukup, University of San Diego
derful children, Nicholas and Julia, for being all
Rieann Spence-Gale, Northern Virginia
that they are and for the joy they bring to all who
Community College–Alexandria Campus
know them.
H. T. Stanton Jr., Barton College
Jerry Stevens, Texas Tech University Gareth R. Jones
William A. Stoever, Seton Hall University
Jennifer M. George
Charles I. Stubbart, Southern Illinois University at
Jesse H. Jones Graduate School of Business
Carbondale
Rice University
James K. Swenson, Moorhead State University
Karen Ann Tarnoff, East Tennessee State
University

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 Final PDF to printer

Contents
Part One Management and Managers

CHAPTER ONE I Small Group Breakout Exercise 29 I Be the

Manager 30 I CASE IN THE NEWS: GE Drives Away
The Management from Transportation 30
Process Today 2
Appendix A: History of Management Thought 34
Sam Edwards/age fotostock RF F. W. Taylor and Scientific Management 34 I Weber’s
Bureaucratic Theory 37 I The Work of Mary Parker
Management Snapshot Follett 39 I The Hawthorne Studies and Human
Relations 39 I Theory X and Theory Y 41
Microsoft Soars with Nadella at the Helm 3

Overview
What Is Management? 4 CHAPTER TWO
Achieving High Performance: A Manager’s Goal 4
I Why Study Management? 6 Values, Attitudes,
Emotions, and Culture:
Essential Managerial Tasks 6
Planning 7 I Organizing 8 I Leading 8
The Manager as a
I Controlling 8 I MANAGER AS A PERSON: Making Sam Edwards/age
Person 44
ER Visits as Painless as Possible 9 I Performing fotostock RF
Managerial Tasks: Mintzberg’s Typology 10
Management Snapshot
Levels of Managers 11 Success Is No Accident for Carnival’s CEO 45
Levels of Management 12
Overview
Types of Managerial Skills 14
MANAGEMENT INSIGHT: Success as a City
Enduring Characteristics: Personality Traits 46
Manager 15 The Big Five Personality Traits 47 I Other Personality
Traits That Affect Managerial Behavior 50 I Additional
Managers Versus Entrepreneurs 18 Personality Assessments 51
Characteristics of Entrepreneurs 18
I Entrepreneurship and Management 18 Values, Attitudes, and Moods and
Emotions 52
Challenges for Management in a Global Values: Terminal and Instrumental 52 I ETHICS IN
Environment 20 ACTION: Promoting Ethical Values in the Hotel Industry 53
Building Competitive Advantage 20 I Maintaining I Attitudes 54 I Moods and Emotions 57
Ethical and Socially Responsible Standards 23
I ETHICS IN ACTION: Giving Employees a Nudge 24 Emotional Intelligence 58

I Managing a Diverse Workforce 25 I Utilizing MANAGING GLOBALLY: Emotional Intelligence across

New Technologies 26 Borders 59

Organizational Culture 60
Summary and Review 27
Managers and Organizational Culture 62 I The Role
Management in Action 28 of Values and Norms in Organizational Culture 63
Topics for Discussion and Action 28 I BUILDING
I Culture and Managerial Action 67
MANAGEMENT SKILLS 28 I Managing Ethically 29 Summary and Review 69

xviii

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Contents xix

Management in Action 70 I Small Group Breakout Exercise 71 I Be the

Topics for Discussion and Action 70 I BUILDING Manager 72 I CASE IN THE NEWS: Google Searches for a
MANAGEMENT SKILLS 71 I Managing Ethically 71 Way to Maintain a Strong Culture 72

Part Two The Environment of Management

CHAPTER THREE Summary and Review 111

Managing Ethics and Management in Action 112

Topics for Discussion and Action 112 I BUILDING MANAGEMENT
Diversity 78 SKILLS 112 I Managing Ethically 113 I Small Group Breakout
Exercise 113 I Be the Manager 113 I CASE IN THE NEWS:
Chevron Tries to Stay on the High Road in Venezuela 114
Sam Edwards/age fotostock RF

Management Snapshot CHAPTER FOUR

Inclusion for Women Engineers at Intel 79
Managing in the Global
Overview Environment 120
The Nature of Ethics 80
Ethical Dilemmas 81 I Ethics and the Law 81 I
Polka Dot Images/Jupiterimages
Changes in Ethics over Time 82

Stakeholders and Ethics 83 Management Snapshot

Walmart Takes on Amazon in India 121
Stockholders 83 I Managers 84 I Employees 86 I
Suppliers and Distributors 87 I Customers 87 I Overview
Community, Society, and Nation-State 87 I Rules
for Ethical Decision Making 88 I Why Should What Is the Global Environment? 122
Managers Behave Ethically? 91 I Sources of an
Organization’s Code of Ethics 93 I Ethical
The Task Environment 123
Organizational Cultures 95 I ETHICS IN ACTION: Suppliers 124 I ETHICS IN ACTION: Levi Strauss
Chatbot Provides Ethical Guidance 96 Motivates Global Suppliers to Treat Workers Well 125
I Distributors 127 I Customers 127
The Increasing Diversity of the Workforce and I Competitors 128
the Environment 97 The General Environment 131
Age 98 I Gender 98 I Race and Ethnicity 100
Economic Forces 131 I Technological Forces 132
I FOCUS ON DIVERSITY: SodaStream’s Oasis of I Sociocultural Forces 132 I Demographic
Diversity 101 I Religion 102 I Capabilities/
Forces 134 I Political and Legal Forces 134
Disabilities 102 I Socioeconomic Background 103
I Sexual Orientation 104 I Other Kinds of The Changing Global Environment 135
Diversity 104 The Process of Globalization 136 I Declining Barriers
to Trade and Investment 137 I MANAGEMENT
Managers and the Effective Management of INSIGHT: Tariffs Are Tangling Auto Supply Chains 138
Diversity 105 I Declining Barriers of Distance and Culture 139
Critical Managerial Roles 105 I Effectively I Effects of Free Trade on Managers 140
Managing Diversity Makes Good Business Sense 107
The Role of National Culture 141
Sexual Harassment 108 Cultural Values and Norms 142 I Hofstede’s Model
Forms of Sexual Harassment 108 I Steps Managers of National Culture 142 I The GLOBE Project 144
Can Take to Eradicate Sexual Harassment 109 I National Culture and Global Management 145
I MANAGEMENT INSIGHT: Providing Effective Anti- I MANAGER AS A PERSON: Ready to Work in a Foreign
Harassment Training 110 Country? 146

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xx Contents

Summary and Review 147 Topics for Discussion and Action 148 I BUILDING
MANAGEMENT SKILLS 149 I Managing Ethically 149 I Small
Management in Action 148
Group Breakout Exercise 149 I Be the Manager 150 I CASE
IN THE NEWS: Foxconn Takes a Chance on Wisconsin 150

Part Three Planning, Decision Making, and Competitive Advantage

CHAPTER FIVE CHAPTER SIX

Decision Making, Planning, Strategy,
Learning, and and Competitive
Creativity 154 Advantage 182
Tom Merton/AGE Fotostock RF
Robert Nicholas/Ojo Images/age fotostock

Management Snapshot Management Snapshot

Creativity and Ability to Learn Keep 23andMe Strong 155 Sorenson Plans for Continued Growth at
Marriott 183
Overview
The Nature of Managerial Decision Overview
Making 156 Planning and Strategy 184
Programmed and Nonprogrammed Decision
Making 157 I MANAGER AS A PERSON: The Nature of the Planning Process 185
Glossier Shines Because Founder Seeks Advice 159 Why Planning Is Important 185 I Levels of
I The Classical Model 160 I The Administrative Planning 187 I Types of Planning 188 I Time
Model 160 Horizons of Plans 190 I Standing Plans and Single-
Use Plans 190 I MANAGER AS A PERSON: With CEO’s
Steps in the Decision-Making Process 163 Guidance, LAX Projects Take Off 191
Recognize the Need for a Decision 164 I Generate
Alternatives 164 I Assess Alternatives 165 Determining the Organization’s Mission
I Choose among Alternatives 167 I Implement and Goals 192
the Chosen Alternative 167 I Learn from Feedback 167 Defining the Business 192 I Establishing Major
Goals 192
Group Decision Making 168
The Perils of Groupthink 168 I Devil’s Advocacy 168 I Formulating Strategy 193
Diversity Among Decision Makers 169 SWOT Analysis 193 I MANAGEMENT INSIGHT:
Comcast Rethinks the Customer Experience 195 I The
Organizational Learning and Creativity 169 Five Forces Model 196
Creating a Learning Organization 169 I MANAGING
GLOBALLY: Constant Learning Keeps Western Union
Formulating Business-Level Strategies 197
Relevant 171 I Promoting Individual Creativity 172 Low-Cost Strategy 198 I Differentiation
I Promoting Group Creativity 173 I Promoting Strategy 198 I Focused Low-Cost and Focused
Intrapreneurship and Learning 174 Differentiation Strategies 199

Summary and Review 175 Formulating Corporate-Level Strategies 201

Concentration on a Single Industry 201 I Vertical
Management in Action 176
Integration 202 I Diversification 203
Topics for Discussion and Action 176 I BUILDING I International Expansion 205 I MANAGING
MANAGEMENT SKILLS 177 I Managing Ethically 177 GLOBALLY: Early U.S. Wins Help FourKites
I Small Group Breakout Exercise 177 I Be the Fly Overseas 206
Manager 178 I CASE IN THE NEWS: Marine Makers Are
Building an Agile Future for Military Logistics 178 Planning and Implementing Strategy 210

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Contents xxi

Summary and Review 210 Topics for Discussion and Action 211 I BUILDING
MANAGEMENT SKILLS 211 I Managing Ethically 212 I Small
Management in Action 211
Group Breakout Exercise 212 I Be the Manager 212 I CASE
IN THE NEWS: Best Buy Strategies Evolve with the Times 213

Part Four Organizing and Change

CHAPTER SEVEN CHAPTER EIGHT

Designing Organizational Control
Organizational and Change 252
Structure 218
@Jacob Lund/Shutterstock Image Source/Getty Images

Management Snapshot
Management Snapshot
P&G Takes a Hard Look at Digital Ads 253
Alaska Air Structures Work with Passengers in Mind 219
Overview
Overview What Is Organizational Control? 254
Designing Organizational Structure 220 The Importance of Organizational Control 255
The Organizational Environment 220 I MANAGEMENT INSIGHT: Controlling Your Office
I Strategy 221 I Technology 222 I Human Inbox 256 I Control Systems and Technology 257
Resources 222 I The Control Process 259
Grouping Tasks into Jobs: Job Design 223 Output Control 262
Job Enlargement and Job Enrichment 224 Financial Measures of Performance 262
I MANAGING GLOBALLY: IKEA Is Redesigning Itself I MANAGEMENT INSIGHT: WANTED: Strong Writing
for the Future 225 I The Job Characteristics and Problem-Solving Skills 264 I Organizational
Model 226 Goals 264 I Operating Budgets 265 I MANAGING
GLOBALLY: Zero-Based Budgeting Helps Control
Grouping Jobs into Functions and Divisions: Expenses 266 I Problems with Output Control 267
Designing Organizational Structure 227
Behavior Control 267
Functional Structure 227 I Divisional Structures:
Direct Supervision 268 I Management by
Product, Geographic, and Market 229 I ETHICS IN
Objectives 268 I Bureaucratic Control 270
ACTION: Pfizer’s Prescription for a Healthier Organizational
Structure 231 I MANAGER AS A PERSON: McDonald’s
I Problems with Bureaucratic Control 271
CEO Continues to Change Things Up 234 I Matrix and Organizational Culture and Clan Control 273
Product Team Designs 235 Adaptive Cultures versus Inert Cultures 273

Coordinating Functions and Divisions 237 Organizational Change 274

Allocating Authority 238 I Integrating and Assessing the Need for Change 275 I Deciding
Coordinating Mechanisms 241 on the Change to Make 276 I Implementing the
Change 277 I ETHICS IN ACTION: Volkswagen Sets Off
Strategic Alliances, B2B Network Structures, on a Long Road to Redemption 277 I Evaluating the
and Technology 243 Change 278
Summary and Review 245 Summary and Review 279
Management in Action 246 Management in Action 280
Topics for Discussion and Action 246 I BUILDING Topics for Discussion and Action 280 I BUILDING
MANAGEMENT SKILLS 246 I Managing Ethically 247 MANAGEMENT SKILLS 280 I Managing Ethically 280
I Small Group Breakout Exercise 247 I Be the I Small Group Breakout Exercise 281 I Be the
Manager 248 I CASE IN THE NEWS: Restructuring and Manager 281 I CASE IN THE NEWS: How Stitch Fix
Rebranding Go Hand in Hand at Ogilvy 248 Controls Inventory and Customer Experience 282

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Discovering Diverse Content Through
Random Scribd Documents
expressly confirmed "to be kept and maintained in all points," the
provision in regard to due proces de lei in the act of 1354 was
undoubtedly intended to be supplemental to the provisions of the
Great Charter and to apply only to persons being brought to trial in a
court of justice. It is true that in the seventeenth century Lord Coke
used the phrase "due process of law" as the equivalent of "the law
of the land," but in the contemporaneous Petition of Right of 1628
mention is made specifically of the "Great Charter of the Liberties of
England" and its provision as to "the law of the land," and reference
is made separately to the act of 28 Edward III. and its provision that
no man should be prosecuted "without being brought to answere by
due process of lawe."
The same distinction in the use of these terms will be found in the
history of the Plymouth colony as early as 1636 and also in the early
history of the state of New York. The New York charter of liberties
and privileges of 1683 speaks of "being brought to answere by due
course of law," the words evidently being taken either from the act
of Edward III. of 1354, or from the Petition of Right of 1628. The
New York constitution of 1777 used the term "the law of the land"
but did not use the term "due process of law." In the New York bill
of rights of 1787, we find the phrases "the law of the land," "due
process of law" and "due course of law," and in one section the
phrase "due process of law according to the law of the land." Both
terms, "the law of the land" and "due process of law," are used with
evidently the same meaning in the present constitution of the state
of New York, that is to say, "the law of the land" is used in section I
of Article I. and "due process of law" in section 6. The separate
history of each section, the former first appearing in the constitution
of 1777 and the latter in the constitution of 1821, will account for
the difference in terminology.
It would be interesting to trace the varying uses of these terms in
our forty-eight state constitutions, but that must be left for some
other occasion. A majority of the state constitutions, including most
of the recent constitutions, now contain the term "due process of
law." As that term is the one used in the fourteenth amendment,
which is applicable to all the states, it might be preferable, for the
sake of uniformity and certainty, to adopt that form as less likely to
confuse. Moreover, the phrase "due process of law" lends itself
readily to a more comprehensive and inclusive definition if we define
the word "due" to mean just and appropriate and the word "process"
to mean substantive provision as well as procedure.
Finally, it may be of interest to notice the sanction and security
devised for enforcing the covenants of Magna Carta. A body or
tribunal of twenty-five barons, called executors, was created by
chapter sixty-one, who were to "be bound with all their might, to
observe and hold, and cause to be observed, the peace and liberties
we have granted and confirmed to them," and who were to have
power to compel the king himself, even by force, to keep the
promises he had made. The clause providing this security or legal
sanction was crude, but it was not necessarily an impracticable
innovation. Although the plan utterly failed, it remained of immense
value in principle. That principle established the right of the subjects
to compel the king of England to obey a body of fixed laws outside
and beyond his will; it justified revolution for just cause, and it
inspired our forefathers in their struggle against George III. The
influence of this idea upon public sentiment as justifying revolution,
particularly during the seventeenth and eighteenth centuries, cannot
well be over-estimated. The ineffectiveness of this provision of
Magna Carta served also to demonstrate the futility of such a
tribunal and security, and to lead the English people to look
thereafter solely to the courts of justice and to parliament for the
protection of their rights and liberties. The founders of our own
republican governments may have been warned by the failure of this
sanction that it would be unwise to create any political body with
power to enforce constitutional provisions, and it may have been for
this reason that they left the enforcement of constitutional
limitations and the protection of the individual and minorities to an
independent non-political forum composed of impartial judges
learned in the law and meaning "to observe it well," according to the
spirit of Magna Carta.
In closing his great commentaries on the Constitution of the United
States, Mr. Justice Story admonished the American people that,
although the whole structure of our constitutional liberty was erected
by architects of consummate skill and fidelity, with its defences
impregnable from without, it might nevertheless perish in an hour by
the folly or corruption or negligence of its only keepers, the people.
It cannot, indeed, be too often declared that, if constitutional
government and fundamental rights are to endure, they must be
maintained and preserved by competent leaders and representatives
of the people constantly teaching the value of the traditions of
Magna Carta and the necessity of adhering to constitutional
principles and observing constitutional morality. The members of this
Convention are not likely to disregard the living spirit of the Great
Charter of English Liberties and its enduring value to Americans. It
was Lincoln who said that "as a nation of freemen we must live
through all time, or die by suicide." But we shall perpetuate free
government and civil liberty only as we adhere to two essential
conditions: the one, that our fundamental rights shall continue to be
inviolable by the state, the other, that they shall be equal. "If not
inviolable, they are not rights, but only enjoyments on sufferance; if
not equal, they are but the privileges of a class, whatever that class
may be."[4]

FOOTNOTES:
[1] Address before the Constitutional Convention of the state of
New York at its celebration of the seven-hundredth anniversary of
Magna Carta, Albany, June 15, 1915.
[2] Guesses at Truth, 1st series, 3d ed. (1847), pp. 324-325.
[3] W.S. McKechnie, Magna Carta, 2d ed. (1914), p. 159.
[4] Edward J. Phelps, Orations and Essays (1901), p. 127.
 THE MAYFLOWER COMPACT[5]
WHEREVER Americans gather, at home or abroad, those who can
claim the proud heritage of descent from the Pilgrims on the
Mayflower are accustomed annually to join in thanks-giving for all
that they owe to their ancestors. The spirit which prompts these
celebrations is singularly wholesome, and indeed holy. Among the
natural instincts of the heart, common to all races, is a longing for
communion with the past, which manifests itself in the worship of
ancestors. That this spirit of reverence has been from the earliest
ages a most powerful religious and patriotic force is a fact familiar to
us in the history of the Egyptians, the Greeks and the Romans. We
readily recall the beautiful ceremonial of pagan Rome on the dies
parentales, when violets and roses and wine, oil and milk were
offered and aves were chanted to the spirits of their dead.
An impressive example of the survival of this instinct in modern
times is afforded by the Japanese, who daily, at innumerable
household shrines and public temples erected to Shintō, worship
their ancestors as the gods of the home and of the nation. When,
twenty-years ago, Japan so easily defeated the Chinese Empire with
ten times the population of Japan, the surprise and marvel of the
world impelled one of the most brilliant writers of our generation to
seek the source of the fortitude, the indomitable spirit and the
military valor of the Japanese. He did not expect to find it in their
form of government or in their laws, for he realized the great truth
that mere forms of government and laws possess no magical or
supernatural virtue and are of little moment in nations in comparison
with the moral character of their leaders and their people. He
discovered, as he believed, that the secret of the civil and martial
power of the Japanese and the source of their moral energy and
virtue—I use virtue in the Latin sense of valor—lay in the vital and
all-pervading worship of their ancestors, based upon the deep-
rooted belief that all things are determined by the dead. He found
that this homage excited at once the deepest emotion and the most
powerful inspiration of the race, shaping their national character,
directing their national life, teaching them reverence, obedience,
self-restraint, temperance, loyalty, courage, devotion and sacrifice,
and making them ever conscious of the prodigious debt the present
owes to the past, as well as keenly sensible of the duty of love and
gratitude to the departed for their labors and suffering. "They," the
dead, he eloquently wrote, "created all that we call civilization,—
trusting us to correct such mistakes as they could not help making.
The sum of their toil is incalculable; and all that they have given us
ought surely to be very sacred, very precious, if only by reason of
the infinite pain and thought which it cost." And then he added, "Yet
what Occidental dreams of saying daily, like the Shintō believer: 'Ye
forefathers of the generations, and of our families, and of our
kindred,—unto you, the founders of our homes, we utter the
gladness of our thanks'?"[6]
In the reverential spirit so beautifully expressed by this Japanese
prayer, I venture upon a necessarily brief and imperfect review of a
subject of transcendent and enduring interest to Americans—the
debt that American constitutional government, under which we
enjoy the blessings of civil and religious liberty and of just and equal
laws, owes to your ancestors of the Mayflower.
In these days of superlative comfort and affluence, it is difficult for
us assembled in this palatial hall, feasting better than the Cæsars
feasted and served as not even princes were served three hundred
years ago—difficult, if not impossible, is it to carry our minds from
this gorgeous and almost oppressive luxury back through the
centuries to November, 1620, to the Mayflower covered with snow
and ice and buffeted by fierce winter winds off the bleak and
desolate coast of Cape Cod. Equally difficult is it to picture to
ourselves and in imagination to breathe the air of that first American
constitutional convention, in the cramped and chilling cabin of the
Mayflower, when the Pilgrim Fathers were assisting, as Bancroft
says, at "the birth of popular constitutional liberty," and were
discussing the provisions of what has since been called the first
written constitution ever framed by a people for their own
government from the time history began to record human politics
and human successes and failures. I need not stop to read the
contents of the completed draft of that constitution, conceived in the
then vague prompting, which one hundred and fifty-six years later
was to be proclaimed in our Declaration of Independence as a self-
evident truth, that all governments must derive "their just powers
from the consent of the governed." Nor shall I read the names of the
forty-one immortals who executed that compact in order to evidence
their covenant of due consent and promise of obedience to its
provisions and spirit. Surely, if there be one constitutional document
which should be familiar to all Americans, and particularly to the
descendants of the Pilgrims, it is the Mayflower Compact of
November 21, 1620.[7]
Many of us believe that the compact thus entered into was the
prototype of the Constitution of the United States, that the
government it established was the beginning of the republican form
of government now guaranteed alike to nation and state, and that
the covenant it contained for just and equal laws was the germ from
which has since developed our whole system of constitutional
jurisprudence. This covenant reads: "We ... doe by these presents
solemnly & mutualy in ye presence of God, and one of another,
covenant & combine our selves togeather into a civill body politick,
for our better ordering & preservation & furtherance of ye ends
aforesaid; and by vertue hearof to enacte, constitute, and frame
such just & equall lawes, ordinances, acts, constitutions, & offices,
from time to time, as shall be thought most meete & convenient for
ye generall good of ye Colonie, unto which we promise all due
submission and obedience." Surely, this simple, comprehensive and
lofty language, in the style of the Bible open before the Pilgrims,
embodies the true and invigorating spirit of our constitutional polity
as it flourishes to-day.
In order to appreciate the political greatness and the moral grandeur
of the work of the Pilgrims, we should recall that, when the
Mayflower Compact was framed, in no part of the world did there
exist a government of just and equal laws, and that in no country
was there real religious liberty or the complete separation of Church
and State.
In fact, the great and now fundamental principle of the separation of
Church and State was first made a living reality by the Pilgrims,
although, in theory at least, it antedated the voyage of the
Mayflower. It was the essence of their holy covenant of congregation
entered into years before. And to the Pilgrims chiefly are due the
credit and honor of incorporating this principle into Anglo-American
polity. A wide gulf separated the Pilgrims from the Puritans in this
respect. The Pilgrims, first known in England as the Separatists and
Brownists—hated alike by Puritan and Cavalier—advocated religious
liberty and the complete separation of Church and State. The
Puritans, however, when they secured power in England and later in
New England, were intolerant in religion and opposed both to
religious liberty and to the separation of Church and State. They
were determined that the state should dominate in religious as well
as in civil affairs and that it should regulate the religion of all; in
truth, they sought to impose a dominant theocracy as completely as
Henry VIII. and Elizabeth were determined to have a state church
under their own spiritual supremacy and to abolish all "diversity of
opinions," if necessary by rack, fire and the scaffold. The Pilgrim,
personifying him as you love to in the lofty and generous spirit of
Robinson at Leyden, believed in religious freedom, or, as it is
differently phrased, in liberty of conscience; the Puritan was
determined that all should be coerced by legislation and the sword
to conform to his religious views as the only true faith. Although the
Puritan theocracy found its most complete development and tyranny
in Massachusetts, the colony of Plymouth remained liberal and
tolerant. Notwithstanding the terrible record of sanguinary
persecutions among other religious denominations of that age, no
instance is recorded of religious persecution by the Pilgrims or in the
Plymouth colony.[8] You will recall that the famous Pilgrim captain,
Myles Standish, never joined the Plymouth church, that no witches
were ever burned in Plymouth, and that when a malicious woman
accused a neighbor of witchcraft, she was promptly convicted of
slander and thereupon fined and publicly whipped. The excesses and
fury of religious persecution by Protestants and Catholics alike were
the products of the fierce, intolerant and blind spirit of that age. We
should judge them not by the standards of the twentieth century,
but by those of the sixteenth and seventeenth centuries, and must
not overlook the fact that in many cases these persecutions were as
much political as they were religious.
In the history of New England the Pilgrim is often confused with the
Puritan, undoubtedly because the Puritan soon dominated and
ultimately absorbed the Pilgrim. Nevertheless, the differences
between them on this question of religious tolerance and the
separation of Church and State were implacable, to adopt the word
of a great American historian. Yet, in differentiating between Pilgrim
and Puritan and in recalling the facts as to the origin of religious
freedom and the separation of Church and State, the greatest of all
the blessings we now enjoy—in giving most of the glory to the
Pilgrims, notwithstanding the claims of Catholic Maryland—I am not
at all unmindful that in religion and in politics the Pilgrim and the
Puritan had many views in common, that our debt to both is quite
inseparable, and that our gratitude to them should be eternal.
It is certainly impossible to exaggerate the debt we owe to the
Puritan spirit—fierce, indomitable and undaunted, even if intolerant,
for it was that spirit which cemented the foundations of our nation.
It was the Puritan spirit that gave to England her noblest figures and
her most inspiring traditions of battlefields. Towering above all other
Englishmen is the lofty figure of the Puritan Cromwell, and second
only to him are the Puritans Hampden, Pym, Selden, Milton, Vane,
Hale. Hampden—the highest type of English gentleman, with a
nobility and fearlessness of character, self-control, soundness of
judgment and perfect rectitude of intention, to which, as Macaulay
declared, "the history of revolutions furnishes no parallel or furnishes
a parallel in Washington alone." If to-day England is to preserve her
empire, upon which she boasts the sun never sets, she must appeal
to the energy and fortitude and courage of the Puritan. She must
invoke the spirit of Oliver Cromwell, whose mighty arm made the
name of England terrible to her enemies and laid the foundations of
her empire, who led her to conquest, who never fought a battle
without gaining it, whose soldiers' backs no enemy ever saw, who
humbled Spain on the land and Holland on the sea, and who left a
tradition of military valor which is now the inspiration of the splendid
courage, heroism and sacrifice of England's soldiers on the continent
of Europe.
A most important aspect of the Pilgrims' contribution to our political
institutions is the provision for just and equal laws contained in the
Mayflower Compact, for, as I have already suggested, in that
provision is embodied the essence of our whole constitutional
system. It has become a truism that the characteristic of the
American system of constitutional government is equality before the
law. We Americans accept this doctrine as of course. But we should
appreciate that civil equality or equality before the law was
practically unknown in Europe when the Mayflower Compact was
written. In this country its development sprang in great measure
gradually from the seed first sown by the Pilgrims. Neither the
phrase "equality before the law," so familiar to us as expressing a
fundamental and self-evident truth, nor the term "the equal
protection of the laws," now contained in the fourteenth
amendment, is to be found in the English common law. Nor was
either term, or any equivalent, in legal use in America at the time of
the adoption of the Constitution of the United States. Indeed, the
phrase "equality before the law" is said to be a modern translation
from the French. Nevertheless, equality in duty, in right, in burden
and in protection is the thought which has run through all our
constitutional enactments from the beginning.
The Pilgrim Fathers perceived, long before it was generally
appreciated, that equal laws might fall far short of political justice
and liberty, and hence they provided for "just and equal laws." They
realized, perhaps indistinctly, that equality in itself, without other
elements, is not sufficient to guarantee justice, and that, under a law
which is merely equal, all may be equally oppressed, equally
degraded, equally enslaved. They well knew that equality is one of
the pervading features of most despotisms, and that a law may be
equal and yet be grossly arbitrary, tyrannical and unjust. Obviously, a
law confiscating all property of a certain kind would be equal if it
applied to all having that particular kind of property. The laws of
England then in force providing for one form of worship, "for
abolishing diversity of opinions," as the title of the act of 31 Henry
VIII. recited, or compelling all to attend the same church and to take
the same oath of religious supremacy and the sacraments of the
same religious denomination, were all equal laws, because they
applied to every one, no matter what his conscience might dictate.
In the cabin of the Mayflower, the Pilgrim Fathers seem to have had
a vision revealing to them the fundamental and essential political
truth that equality is but an attribute of the liberty they were then
seeking at the peril of their lives and the sacrifice of their fortunes,
and that true liberty requires just as well as equal laws. To repeat, it
was the Pilgrims who first sowed in our soil the seed of just and
equal laws, and that seed has grown into the fixed rule of the
American constitutional system, a rule which has spread through all
our political and civil rights and duties until it reaches, pervades,
unites and invigorates the whole body politic.
The history of the Plymouth colony from 1620 until its absorption by
the colony of Massachusetts in 1691, teaches us many lessons in
political philosophy. There are two which I desire to recall to you to-
night: one as to the right to private property, the other as to pure
democracy.
The Pilgrims began government under the Mayflower Compact with
a system of communism or common property. The experiment
almost wrecked the colony. As early as 1623, they had to discard it
and restore the old law of individual property with its inducement
and incentive to personal effort. All who now urge communism in
one form or another, often in disguise, might profitably study the
experience of Plymouth, which followed a similarly unfortunate and
disastrous experiment in Virginia. History often teaches men in vain.
Governor Bradford's account of this early experiment in communism
in his annals of "Plimoth Plantation" is extremely interesting. The
book is rich in political principles as true to-day as they were three
hundred years ago. After showing that the communal system was a
complete failure and that as soon as it was abandoned and a parcel
of land was assigned in severalty to each family, those who had
previously refused to work became "very industrious," even the
women going "willingly into ye feild" taking "their litle-ons with them
to set corne, which before would aledg weaknes, and inabilitie,"
Bradford proceeds as follows:
"The experience that was had in this com̅ one course and condition,
tried sundrie years, and that amongst godly and sober men, may
well evince the vanitie of that conceite of Platos & other ancients,
applauded by some of later times;—that ye taking away of propertie,
and bringing in com̅ unitie into a comone wealth, would make them
happy and florishing; as if they were wiser then God. For this
comunitie (so farr as it was) was found to breed much confusion &
discontent, and retard much imployme̅ t that would have been to
their benefite and comforte. For ye yong-men that were most able
and fitte for labour & service did repine that they should spend their
time & streingth to worke for other mens wives and children, with
out any recompence. The strong, or man of parts, had no more in
devission of victails & cloaths, then he that was weake and not able
to doe a quarter ye other could; this was thought injuestice. The
aged and graver men to be ranked and equalised in labours, and
victails, cloaths, &c., with ye meaner & yonger sorte, thought it some
indignite & disrespect unto them.... Let none objecte this is men's
corruption, and nothing to ye course it selfe. I answer, seeing all men
have this corruption in them, God in his wisdome saw another
course fiter for them."[9]
Although the colony of Plymouth began as a pure democracy under
which all the men were convened to decide executive and judicial
questions, the increase of population and its diffusion over a wider
territory necessarily led to the transaction of official business
through chosen representatives. The representative system was thus
established by the Pilgrims in New England perhaps more firmly than
elsewhere, and it became the cardinal principle of whatever
efficiency, strength and stability our republican governments now
have. This system is menaced by the enthusiasm for change and by
the fads of recent years, such as the initiative, the referendum, the
recall and direct primaries. In these political nostrums has been
revived the crude notion that the masses, inexperienced as they are
in the difficult and complex problems of government, are
instinctively better qualified to guide than the educated few who are
trained, instructed and competent, and who, acting as the
representatives of all, are bound in good conscience and sound
policy to consider and protect the rights of the minority, of the
individual, of the humble and weak, against the arbitrary will or
selfish interest or prejudice of the majority.
There is no time to-night, even if your patience would bear with me
longer, to trace the growth of the political principles which we find in
the history of the Plymouth colony and underlying the experiment in
republican government there initiated under the Mayflower Compact.
If the tree is to be judged by its fruit, the framing of that compact in
1620 was one of the most important events in the history of the
American people, and the document itself is one of the most
interesting and inspiring of American constitutional documents. But I
feel that I may appropriately suggest to you questions which are of
immediate and urgent concern to us all, and they are whether the
quickening and stirring message of the Mayflower has really endured
—whether the sterling qualities of the Pilgrim and the Puritan have
survived—whether the descendants of the Pilgrims have inherited
and can perpetuate the invincible spirit, the unconquerable moral
energy, the indomitable steadfastness of their ancestors—and
whether these qualities are available in our own day to guide the
nation safely and wisely through the inevitable crisis which we are
approaching as the whole civilization of Europe is being daily more
and more engulfed in the abyss of this awful war. These are
problems which our generation must face sooner or later. And who
should be better qualified to guide us—for it is leadership that we
need—than men who inherit the spirit and the traditions of the
Pilgrim and the Puritan?
In this crisis, the greatest in our national affairs since 1861, I hope
we shall profit by the example of the founders of Plymouth, who, as
Palfrey wrote, "gave diligent heed to arrangements for the military
defence of the colony." It may be also that Providence will give us, in
the descendant of a Pilgrim, the captain who shall be both our shield
and our weapon as Myles Standish was the shield and the weapon of
your ancestors.

FOOTNOTES:
[5] Remarks responding to the toast, "The Mayflower Compact,"
at the twenty-first annual banquet of the Society of Mayflower
Descendants in the State of New York, held at the Hotel St. Regis,
New York, November 23, 1915.
[6] Lafcadio Hearn, Kokoro, pp. 289-290.
[7] The original manuscript of the Mayflower Compact has been
lost or destroyed. The text, as preserved by Governor Bradford in
his annals entitled "Of Plimoth Plantation," is as follows:
"In ye name of God, Amen. We whose names are under-writen,
the loyall subjects of our dread soveraigne Lord, King James, by
ye grace of God, of Great Britaine, Franc, & Ireland king, defender
of ye faith, &c., haveing undertaken, for ye glorie of God, and
advancemente of ye Christian faith, and honour of our king &
countrie, a voyage to plant ye first colonie in ye Northerne parts
of Virginia, doe by those presents solemnly & mutualy in ye
presence of God, and one of another, covenant & combine our
selves togeather into a civill body politick, for our better ordering
& preservation & furtherance of ye ends aforesaid; and by vertue
hearof to enacte, constitute, and frame such just & equall lawes,
ordinances, acts, constitutions, & offices, from time to time, as
shall be thought most meete & convenient for ye generall good of
ye Colonie, unto which we promise all due submission and
obedience. In witnes wherof we have hereunder subscribed our
names at Cap-Codd ye 11. of November, in ye year of ye raigne of
our soveraigne lord, King James, of England, France, & Ireland ye
eighteenth, and of Scotland ye fiftie fourth. Ano: Dom. 1620."
Printed in the Collections of the Massachusetts Historical Society,
4th series, vol. III, pp. 89-90. See also the text in Bradford's
History of Plymouth Plantation, ed. W.T. Davis (1908), p. 107.
[8] The legislation against the Quakers as enforced in the
Plymouth colony seems to have been essentially political. The
records, so far as we have them, indicate that the Quakers were
proceeded against because of their attempts to disturb the peace
and overthrow established law and order, and not because of
their religious beliefs.
[9] Collections of the Massachusetts Historical Society, 4th series,
vol. III, pp. 134-136.
 CONSTITUTIONAL MORALITY[10]
THE text of this address is taken from Grote's "History of Greece."
The historian, reviewing the state of the Athenian democracy in the
age of Kleisthenes, points out that it became necessary to create in
the multitude, and through them to force upon the leading men, the
rare and difficult sentiment which he terms constitutional morality.
He shows that the essence of this sentiment is self-imposed
restraint, that few sentiments are more difficult to establish in a
community, and that its diffusion, not merely among the majority,
but throughout all classes, is the indispensable condition of a
government at once free, stable and peaceable. Whoever has
studied the history of Greece knows that the Grecian democracy was
ultimately overthrown by the acts of her own citizens and their
disregard of constitutional morality rather than by the spears of her
conquerors.
We American lawyers would be blind, indeed, if we did not recognize
that there is at the present time a growing tendency throughout the
country to disregard constitutional morality. On all sides we find
impatience with constitutional restraints, manifesting itself in many
forms and under many pretences, and this impatience is particularly
strong with the action of the courts in protecting the individual and
the minority against unconstitutional enactments favoring one class
at the expense of another. However worded and however concealed
under professions of social reform or social justice, the underlying
spirit in most instances is that of impatience with any restraint or
rule of law.
We are meeting again the oldest and the strongest political plea of
the demagogue, so often shown to be the most fallacious and
dangerous doctrine that has ever appeared among men, that the
people are infallible and can do no wrong, that their cry must be
taken as the voice of God, and that whatever at any time seems to
be the will of the majority, however ignorant and prejudiced, must
be accepted as gospel. The principal political battle-cry to-day seems
to be that, if the people are now fit to rule themselves, they no
longer need any checks or restraints, that the constitutional form of
representative government under which we have lived and
prospered has become antiquated and unsatisfactory to the masses,
and that we should adopt a pure democracy and leave to the
majority itself the decision of every question of government or
legislation, with the power to enforce its will or impulse immediately
and without restraint.
We find many political and social reformers advocating an absolute
legislative body, whose edicts, in response to the wishes, interests,
or prejudices of the majority, shall at once become binding on all, no
matter how unjust or oppressive these edicts may be. Those who
are loudest in thus demanding the supremacy of the legislative
power are equally loud in charging that our legislatures are
inefficient or corrupt and in proclaiming distrust of the people's
representatives in legislative bodies. In one breath we are asked to
vest legislatures with power and discretion beyond the control of the
courts, and in the next breath we are told that legislative bodies are
not to be trusted by the people, and hence that we must have the
initiative and the referendum.
Other reformers would vest greater power in the executive, so as to
enable him to dictate to legislatures whatever he deemed or
professed to think best for the common welfare or for social
progress. In the final analysis this would, of course, reduce us to a
despotism pure and simple, and place Congress and the state
legislatures in the condition of the Roman senate in the second
century. Argue as we may from the admonitions and experience of
the past, the defiant answer is that the people will select the
executive and are prepared to trust him, an answer that singularly
disregards the fact that they now select the legislators whom they
no longer trust, and that practical reform in legislation is ready to
their hand if they will only insist upon character and ability in their
representatives.
Others again would deny to the courts the power and duty to
declare unconstitutional and void any enactment of a legislative body
that was in conflict with the constitution, or, if not going quite so far,
would give the courts power to disregard constitutional limitations
whenever the judges found or fancied that an enactment was in
consonance with prevailing morality or the opinion of the majority in
respect of matters relating to the police power or social progress or
social justice. They would have the judiciary interpret and enforce a
constitution not according to the mandate of the people who
adopted it, nor according to the true meaning and intent of the
language employed by the framers, nor according to settled general
rules and principles, but according to the ever-changing desires or
notions or opinions of the majority and the personal ideas of so-
called progressive or sympathetic judges. Many of those who charge
the judiciary with having usurped the power to determine whether a
particular enactment does or does not conflict with the fundamental
and supreme law as established by the people themselves, would
now place a far greater power in the hands of the courts by
authorizing them to expand or contract a constitution by judicial
construction, and would thus in reality vest in the judges an arbitrary
discretion. Under this doctrine, practically every constitutional
restraint could be readily circumvented, perverted, or nullified;
constitutional rights could be frittered away, and great landmarks of
human progress could be undermined.
We should then have government by the judiciary with a vengeance.
Our constitutional system would be no longer reasonably fixed and
stable, no longer regulated by the justice of necessary general rules,
but would be subject to constant uncertainty and change as judges
might think the moral atmosphere of the moment or the will or
opinion or interests of the majority required. It would, of course, be
better to have no constitutional restraints at all, and to vest supreme
power and corresponding responsibility in the legislative branch of
our government. It is of the essence of judicial power that judges in
deciding cases shall be bound by principles, rules and precedents,
that they shall not be permitted to exercise arbitrary discretion, and
that they shall be required to give reasons for their decisions. A
court bound by no rules or principles at all would not be exercising
judicial power as we understand that term. If we were to vest in
legislatures or courts the discretion to obey or disobey constitutional
restraints according as the prevailing moral or political sentiment
might seem to dictate, we would at once deprive such restraints of
all practical force and effect, and would have a constitution only in
name and form and not in substance. As the late Chief Justice Fuller,
clarum et venerabile nomen, so well said in the Lottery case, "our
form of government may remain notwithstanding legislation or
decision, but, as long ago observed, it is with governments as with
religions, the form may survive the substance of the faith."[11]
The limited time at my disposal compels me to confine this address
to the aspect of constitutional morality which is presented by the
criticism of the courts for refusing to enforce unconstitutional
statutes. This seems to me to be the most dangerous of all the lines
of attack. I regret that I have not time to deal with other important
aspects of my subject, such as the movement for the recall of judges
and judicial decisions, the agitation for the initiative and the
referendum, and the growing practice on the part of legislatures and
executives of abandoning the consideration of constitutional
questions and leaving this duty to the courts, thus casting upon the
judges the sole responsibility and frequently the unpopularity and
even odium of enforcing constitutional restraints.
Few of us, I assume, would seriously suggest that the judicial
department is to be above criticism, or that it is to be deemed
sacrosanct so that we must bow and submit in silence, without the
right of challenge, criticism, or censure, to whatever the courts
declare to be law. Such a view would be absurd. Of course, judges
make mistakes as the wisest and best men make mistakes. They are
not infallible. But neither are our legislative bodies infallible, nor is
the crowd. There must be the fullest liberty of criticism and if need
be of censure of our judges as of all other public officials. Fair and
just criticism, however, would be distinctly educational, and it could
tend only to restore the courts to public favor and confidence. The
danger is not in freedom of criticism, but in unfair and unfounded
criticism supported by distorted or false statements. Our judicial
system is inherently sound enough and strong enough to withstand
and overcome any fair criticism. We should, therefore, encourage
the fullest discussion of judicial decisions in constitutional cases in
order that constitutional principles may be adequately explained and
the necessity for the observance of constitutional morality brought
home to the people. Let us, however, insist that the facts be
truthfully stated. If the reasons and principles of justice which
support most of the decisions criticized could be explained to all
classes in simple language and in terms intelligible to laymen as well
as to lawyers, much of the misapprehension of judicial decisions and
prejudice against the courts and constitutional restraints would be
dispelled. To tell the man in the street or in the workshop that a
statute is in conflict with the guaranty of due process of law or of
the law of the land, conveys no meaning to his mind; yet, if he
understood the fundamental principles involved and the
consequences of disregarding them, he might be persuaded of the
justice and propriety of the decision under discussion.
I shall call your attention to a few examples of alleged abuse or
usurpation of power by the judiciary, and endeavor to show the
characteristics of much of the criticism of the judges and the manner
in which the masses are being constantly prejudiced and inflamed
against the courts.
The case in the New York courts which probably is being more
criticized and misrepresented than any other is known as the
Tenement House Tobacco case (Matter of Jacobs),[12] decided in
January, 1885. The courts then held unconstitutional an act which
forbade the manufacture of tobacco products in certain tenement
houses in New York and Brooklyn, because the statute
unwarrantably and unreasonably interfered with the liberty of the
individual. The enactment was an attempt on the part of the owners
of large tobacco factories to destroy the competition of cigar
manufacturers who worked at home. It was not an honest health
measure at all; it was not in fact designed to protect the health of
tobacco workers, and it did not contain a single provision tending in
any degree to secure sanitary conditions of work or living. Not one
word in the opinions of the courts in the Jacobs case prevented the
legislature from adopting regulations to secure wholesome
conditions in the manufacture of any article. Since that decision, the
New York constitution has been carefully revised by a constitutional
convention in 1894, and in addition has been repeatedly amended,
no less than nineteen separate amendments having been adopted
by the people, whilst a large number of additional proposed
amendments have been rejected. But in neither the revision nor in
any of the amendments, whether adopted or rejected, was any
change suggested in the rule of constitutional law declared in the
Tenement House case, although the subject was directly called to
the attention of the convention. For more than a quarter of a
century, the people of the state of New York have acquiesced in the
decision of the Court of Appeals as fair, just and satisfactory.
Jacobs with his wife and two children lived in a tenement house in
the city of New York and occupied an apartment of seven rooms in a
building where there were only three other apartments, all of equal
size. In this apartment he carried on the trade of manufacturing
cigars, and the rooms in which he did so were separated from the
sleeping and cooking-rooms. The testimony showed that there was
no odor of tobacco in these sleeping and cooking-rooms. The
conditions under which he was carrying on his trade in his own
home for the support of himself and his family were much more
healthful than if he and his assistants had been compelled to work in
a crowded factory, particularly in 1884, when there were no such
sanitary conditions in factories as now prevail under the beneficent
operation of our present public health and labor laws. It was shown
that, when this legislation was enacted, 840,000,000 cigars were
being manufactured annually in the city of New York, of which about
370,000,000, or 44 per cent., were made in the homes of dwellers in
tenement or apartment houses, and that about two thousand
artisans were supporting themselves and their families by thus
working at home. The board of health of the city of New York had
officially declared, after careful investigation, as set forth in the brief
of Mr. Evarts, then the leader of the American bar, "that the health of
the tenement-house population is not jeopardized by the
manufacture of cigars in those houses; that this bill is not a sanitary
measure, and that it has not been approved by this board." It also
appeared from this brief that while the death-rate in the city of New
York generally was 31 in each 1,000, it was only 9 in each 1,000 in
the tenement houses where cigars were being manufactured. The
act, if valid and enforceable, would have crushed the competition of
home workers with the tobacco factories; it would have deprived the
tenement-house dweller of the liberty to exercise his trade of cigar-
making at home even under the most sanitary conditions, and it
would have driven every such workman and the working members
of his family into crowded and generally unhealthful factories, to be
harassed and oppressed by strikes and lockouts and the other
troubles which attend modern labor conditions, to say nothing of
being exposed to all the mischiefs, physical and moral, that are
inseparable from crowded workshops. The court held that the
statute was not a legitimate health regulation and released Jacobs
from imprisonment. The principle of constitutional law recognized
and applied was that an individual cannot be made a criminal for
working at a lawful trade in his own home under sanitary conditions,
and cannot be compelled by discriminatory legislation to labor in a
crowded factory. If the provisions of the act had not been declared
to be in conflict with the constitutional guaranty of personal liberty,
similar statutes could have been passed with respect to all kinds of
home work, and all artisans, whether men or women, could have
been driven into factories at the dictation of factory owners or trade-
unions having sufficient political influence to secure the necessary
legislation.
I digress here a moment to point out that people urging particular
enactments too often overlook the effect of disregarding a principle
and establishing a precedent. Constitutions declare general rules or
principles of justice, which sometimes do not coincide with the
justice of particular cases. The framing of general rules of conduct
so as to bring about practical justice in the greatest number of cases
and with the fewest exceptions, constitutes the science of
jurisprudence, of which constitution-making is but a branch, and the
application of these general rules to practical affairs is the duty of
legislatures and courts. The statutes before the courts are frequently
recognized and conceded to be only entering wedges and
experiments, and, if sustained, are certain to be followed by others
far broader and more radical. If legislative power exists to regulate a
subject, the extent or degree of its exercise is essentially for the
legislature to determine in its discretion and cannot be controlled by
the courts. Hence, a court must always consider, in determining the
constitutionality of a statute, not merely the features of the
particular statute before it and not merely the justice or merits of
the particular case as between man and man or between the state
and the individual, but what might be done under the same principle
if the statute before it were upheld and a precedent established.
Thus, if we once grant the power of a legislature to prohibit work at
home under sanitary conditions in one trade, then every trade
becomes subject to the same power of regulation and prohibition,
and all working men and women can be driven into crowded
factories.
In the Jacobs case, Presiding Justice Noah Davis, speaking for the
intermediate appellate court sitting in the city of New York, and
undoubtedly acquainted with conditions then and there existing,
used the following language: "A careful study of the act has satisfied
us that its aim was not 'to improve the public health by prohibiting
the manufacture of cigars and preparation of tobacco in any form in
tenement houses in certain cases, and regulating the use of
tenement houses in certain cases,' as declared in the title, but to
suppress and restrain such manufacture in the cases covered by the
act for the purpose of preventing successful competition injurious to
other modes of manufacturing the same articles.... If the act were
general and aimed at all tenement houses, and prohibited for
sanitary reasons the manufacture of cigars and tobacco in all such
buildings, or if it prohibited such manufacture in the living-rooms of
all tenants, another case would be presented. But in the form in
which it comes before us it is so unjust in its inequality, so harsh and
oppressive upon the labor of poverty, so keenly discriminative in
favor of the stronger classes engaged in the same occupation, that it
certainly ought not to have been enacted; but, being enacted, ought
to be held invalid because it deprives the appellant of his right and
liberty to use his occupation in his own house for the support of
himself and family, and takes away the value of his labor, which is
his property protected by the Constitution equally as though it were
in lands or money, without due process of law."[13]
Discussing the Jacobs case, Mr. P. Tecumseh Sherman of the New
York bar, who is reputed to be one of the best informed men in our
state upon the subject of labor conditions and labor legislation and
who was at one time a state commissioner of labor, said in a letter
published a few weeks ago that the tenement-house statute,
although purporting to be for the public health, was not a
reasonable regulation for that purpose, because it arbitrarily selected
one article and forbade its manufacture under certain conditions not
generally unsanitary, and he added that "as matter of fact, the act
was not designed to protect health but to put out of business one
set of competitors in a trade war."
Now let me call your attention to two examples of the manner in
which this decision is being criticized. In an address delivered at Yale
University last month, the mayor of the city of New York, who for
many years had been a justice of the state supreme court, criticized
the courts and derided the administration of justice in his own state.
He referred to the Jacobs case in the following language: "The first
case I shall call your attention to is known in my own state as the
Tenement House Tobacco case.... You know what a condensed
population we have in a part of the city of New York. Well,
benevolent men and women in going around there found in little
rooms in these crowded tenements certain things being
manufactured that were not wholesome. They found tobacco being
manufactured into its various products in the living-rooms of these
poor tenements. Benevolent people who helped the poor saw it and
they saw the evils of it. They saw little children born into this world
and brought up in bedrooms and kitchens in the fumes and odors of
tobacco. They also saw longer hours of work than would be the case
if workers left their work at the shop and went home. So they went
to the legislature and got a law passed forbidding the manufacture
of tobacco in the living-rooms of these tenements." Mayor Gaynor
then proceeded to criticize and condemn the Court of Appeals for its
reasoning and decision.
The facts, however, were that the statute was not limited to "the
living-rooms of these tenements," but applied to every room, and
that the promoters of this legislation were not the benevolent men
and women who visit and help the poor, as Mayor Gaynor imagined,
but the owners of tobacco factories who desired to crush the
competition of independent workers. Nor was there anything in the
case before the courts to support the statement that any one had
seen "little children born into this world and brought up in bedrooms
and kitchens in the fumes and odors of tobacco." No such conditions
were before the courts, and the contrary was proved by
unimpeached evidence in the Jacobs case, as any one reading the
record could see. But, even if the picture had been true, the decision
in this case did not in any way whatever prevent proper legislation
prohibiting the manufacture of tobacco products in the bedrooms
and kitchens of crowded tenement houses or under unsanitary
conditions.
Ex-President Roosevelt is equally inaccurate in his criticism of the
Jacobs case. He is reported as having said in one of his recent
speeches that "the decision of the court in this case retarded by at
least twenty years the work of tenement-house reform and was
directly responsible for causing hundreds of thousands of American
citizens now alive to be brought up under conditions of reeking filth
and squalor, which measurably decreased their chance of turning out
to be good citizens." The truth is that the decision did not retard
tenement-house reform by a single day, and did not prevent the
enactment of a single provision for securing sanitary conditions for
those who work at home. In fact, the necessary legislation has since
been readily secured and enacted in New York without any
amendment of the state constitution. Our public health and labor
laws now regulate the manufacture of tobacco and other articles in
homes and require and secure sanitary conditions, and licenses
authorizing manufacturing at home are issued subject to cancellation
at any time if the surroundings become unsanitary.
Mr. Sherman characterized as absurd the statement made by Mr.
Roosevelt in regard to the effect of this decision, and added that "so
far, then, from having done harm in the way of sanitary reform, the
decision in the Jacobs case has done good by giving the reform a
proper direction and object. Mr. Roosevelt's criticism receives a ready
chorus of approval from a large body of ill-informed reformers who
seek to prevent some of the evils of 'sweating' by arbitrarily
forbidding all home manufacture in tenements. But the vast majority
of tenement houses in New York are of a class better described as
apartment houses, which are perfectly sanitary, and in such houses
there is much home work of a good kind, such as fine sewing, art
work, &c., and under good conditions; and it would be a deplorable
and unnecessary interference with liberty to forbid such work as an
incident to the prevention of home work in unsanitary slums."
Another New York case which is being similarly criticized and
misrepresented is what is known as the Bakers case, or People vs.
Lochner.[14] The decision in this case declaring a statute
unconstitutional was that of the Supreme Court of the United States
and not of the New York Court of Appeals; in fact the latter court
sustained the act, although by a divided court. Mayor Gaynor
explained this decision to his audience at Yale, composed largely of
law students, in the following language: "The next case in order was
the bake-oven case in my state. A bake-oven, you know, is
underground. And if any of you ever were in a bake-oven I do not
need to say another word about bake-ovens. It is the hottest and
most uncomfortable place on the face of the earth. It is a hard place
to work in. It is hot and unhealthy, and no one can stand it without
injury to health. So in the same way in the state of New York we had
an act passed prescribing sanitary regulations for the bakeries....
These bake-ovens are exceptional. They are underground and as hot
as Tophet, if I may use such an expression here.... The law was
passed prescribing regulations for them. One of the regulations was
that ten hours a night was all that a baker should work in these
places." And Mr. Roosevelt is reported in the newspapers as
criticizing this decision and stating to his audiences that "this New
York law prevented the employment of men in filthy cellar bakeries
for longer than ten hours a day."
The statute in question applied to manufacturers of bread, biscuits
and confectionery. Taken in connection with the then existing Public
Health Law, it contained adequate provisions for securing the best
conditions of sanitation and ventilation and for safeguarding bakers
from the effects of heat and of breathing flour or other particles.
There was no distinction drawn in the act as to hours of labor
between sanitary and unsanitary conditions of work, or between
bakers and other employees, or between night and day work. The
power of the legislature to prevent the manufacture of bread or
other articles of food in cellars or in underground bake-ovens or in
filthy and unsanitary places, whether above or below ground, was
not challenged. The provisions of the act tending to secure sanitary
conditions were not interfered with or set aside by the courts, and
they have ever since been enforced as valid for all purposes. The act
was not confined in its operation to workmen compelled to labor at
night underground, but applied to everyone employed day or night
in factories, above or below ground, in which bread, confectionery,
or biscuits were manufactured. It is true that medical authorities
were cited to the courts in support of the view that the trade of a
baker was injurious to health, but such authorities were based upon
statistics gathered under conditions of labor which could not have
existed then and cannot exist now in New York if the elaborate
regulations of our public health and labor laws be duly enforced.
There were, however, conflicting medical authorities cited to the
court, which asserted that the trade was not unwholesome.
Lochner owned a bakery at Utica in which he worked himself and
employed three or four workmen. There was only one oven, and it
was above ground. The building was clean, especially well ventilated
and sanitary. The only question before the court in the case was
whether Lochner could be made a criminal and imprisoned for
permitting his workmen to labor more than ten hours in any day
under the best sanitary conditions, and the Supreme Court held that
this could not be done without violating his constitutional rights. Had
the conditions of work in bread, biscuit, or confectionery factories in
the state of New York been shown to have been unusually
dangerous and necessarily unwholesome, the law would
undoubtedly have been sustained by the Supreme Court, as was the
Utah miners' act in Holden vs. Hardy.[15] No one who has studied
the decisions of the New York courts or of the Supreme Court of the
United States can doubt that any statutory provision reasonably
tending to protect the health of bakers and other workmen and to
prevent labor in unhealthful places would be upheld as clearly within
the police power of the legislature.
The act, moreover, was one-sided and discriminatory in that it made
the employer a criminal but left the workman free to do as he saw
fit. A baker working for A for ten hours in one day was left at liberty
to go next door to B, A's competitor, and, if he saw fit, work another
ten hours for B. In fact, as I am told, the informer on whose
testimony Lochner was convicted frequently worked ten hours a day
for Lochner and a number of hours additional in another bakery. If
the act had been honestly conceived in a desire to safeguard the
health of bakers, it would, of course, have provided some
punishment for any violation of the law on the part of the workmen,
and not have left them at liberty to disregard its spirit whenever they
saw fit to do so.
The principle involved in this Bakers case was universal, and if
employers in bread, biscuit, or confectionery factories could be made
criminals for permitting their employees to labor more than ten
hours in any one day, the legislature could enact similar legislation
as to every other employment. No court would then have power to
regulate the degree of the exercise of legislative discretion in such
cases. The provision, which at first limited the workday to ten hours,
could thereafter be changed to eight hours, or even to six hours, as
was advocated in More's "Utopia."
In February of this year, Mr. Roosevelt delivered an address before
the Ohio constitutional convention, in which he discussed the
decision of the Supreme Court of the United States in the Employers'
Liability cases,[16] decided while he was President. The court then
held that the act of Congress of June 11, 1906, sometimes
erroneously called the National Workmen's Compensation Act,
attempted to regulate the internal affairs of the several states as
well as interstate commerce, that it consequently included a subject
not within the constitutional power of Congress, and that the two
matters were so blended that they were incapable of separation
unless the court made a new statute in the place of the one enacted
by Congress. Conscientiously entertaining this view, the majority of
the court would have been guilty of the plainest constitutional
immorality if they had not declared that the act was beyond the
power of Congress and declined to give it effect. No honest men,
believing as the majority did, could have done otherwise than obey
the constitutional mandate expressly reserving to the states the
legislative powers not delegated to Congress. In the light of the
long-established and wise rule that courts should avoid judicial
legislation and not revise or give effect to a statute in a manner not
clearly intended by the legislative body, the justices could not, of
course, have upheld and enforced the statute simply because the
individual cases before them excited their sympathy or involved the
claims of widows. The remedy was obvious and simple. Congress
was then in session, and within a few days an amended statute
could have been enacted so as to limit the act to interstate
commerce, which alone was within the constitutional power of
Congress to regulate. After the lapse of three months, such a law
was enacted, and being plainly confined to interstate commerce, as
the original statute should have been, and would have been if
properly and competently drafted, the amended act was
unanimously sustained by the Supreme Court as constitutional in the
Second Employers' Liability cases, decided this year,[17] when it was
held that Congress had power to change the common law rules as to
assumption of risk, contributory negligence and fellow-servants' acts
in connection with the regulation of interstate commerce.
Speaking of the first decision, Mr. Roosevelt said: "When I was
President, we passed a National Workmen's Compensation Act.
Under it a railway man named Howard, I think, was killed in
Tennessee, and his widow sued for damages. Congress had done all
it could to provide the right, but the court stepped in and decreed
that Congress had failed. Three of the judges took the extreme
position that there was no way in which Congress could act to
secure the helpless widow and children against suffering, and that
the man's blood and the blood of all similar men when spilled should
forever cry aloud in vain for justice. This seems a strong statement,
but it is far less strong than the actual facts; and I have difficulty in
making the statement with any degree of moderation. The nine
justices of the Supreme Court on this question split into five
fragments. One man, Justice Moody, in his opinion stated the case in
its broadest way and demanded justice for Howard, on grounds that
would have meant that in all similar cases thereafter justice and not
injustice should be done. Yet the court, by a majority of one,
decided as I do not for one moment believe the court would now
decide, and not only perpetuated a lamentable injustice in the case
of the man himself, but set a standard of injustice for all similar
cases. Here again I ask you not to think of mere legal formalism, but
to think of the great immutable principles of justice, the great
immutable principles of right and wrong, and to ponder what it
means to men dependent for their livelihood, and to the women and
children dependent upon these men, when the courts of the land
deny them the justice to which they are entitled."
Now, if this argument meant anything it certainly meant that, in the
opinion of the speaker, an ex-President of the United States, the
justices of the Supreme Court should have disregarded the
Constitution as they understood it in order to allow a widow to
recover notwithstanding the unconstitutionality of the act under and
by virtue of which she was suing. You will not find a single word of
reference by Mr. Roosevelt in his whole address to the only point
upon which the majority, speaking by Mr. Justice White, decided the
cases. Of course, the statement of what was actually decided would
have been tame and unsensational. The criticism in form and
substance was based upon a distorted and unfair statement of what
was decided, and it was calculated to create in the minds of the
members of the Ohio constitutional convention, as well as in the
minds of the uninformed public, the belief that the justices of the
Supreme Court of the United States had "set a standard of injustice
for all similar cases" and had denied to Congress the power to pass
a fair and just employers' liability statute properly limited to
interstate commerce. The contrary was plainly the truth, as the
subsequent decision of the court had clearly shown, for this latter
decision was rendered and published before Mr. Roosevelt made his
address.
Another example of distorted statement and unfair criticism of the
courts will be found in the same address. It related to the decision of
the New York Court of Appeals in the case of Ives vs. South Buffalo
Railway Company,[18] decided last year, in which the court held that
a statute concededly novel and revolutionary, creating liability on the
part of an employer to his workmen although the employer and his
agents were wholly free from negligence or fault of any kind and had
neglected no duty of care, supervision or selection, was
unconstitutional because taking the property of the employer and
giving it to the workman without due process of law. Ives was a
brakeman employed by the defendant railway company. While
walking on the top of the cars of a very long train, he gave a signal
to the engineer to close up a space or slack and was thrown to the
ground by the resulting jar, concededly without any negligence on
the part of the railway company, and probably through his own
carelessness. The injury consisted of a sprained ankle and slight
bruises. There was no claim in the complaint that the injury was in
any sense permanent, and as matter of fact Ives sued for loss of
wages during only five weeks, claiming fifty dollars as the measure
of his damage. I am informed that the injury was not serious, that
Ives entirely recovered and resumed his work within four weeks
after the injury, that the railroad company ultimately paid him for his
loss of time, that he has since been continuously employed by the
same company at similar work, and that in no sense whatever was
his ability to earn his livelihood impaired.
Let us turn to the picture drawn by Mr. Roosevelt in describing this
case for the instruction and guidance of a constitutional convention.
"I am not thinking of the terminology of the decision, nor of what
seem to me the hair-splitting and meticulous arguments elaborately
worked out to justify a great and terrible miscarriage of justice.
Moreover, I am not thinking only of the sufferers in any given case,
but of the tens of thousands of others who suffer because of the
way this case was decided. In the New York case, the railway
employee who was injured was a man named, I believe, Ives. The
court admits that by every moral consideration he was entitled to
recover as his due the money that the law intended to give him. Yet
the court by its decision forces that man to stagger through life
maimed, and keeps the money that should be his in the treasury of
the company in whose service, as an incident of his regular
employment and in the endurance of ordinary risks, he lost the
ability to earn his own livelihood. There are thousands of Iveses in
this country; thousands of cases such as this come up every year;
and while this is true, while the courts deny essential and
elementary justice to these men and give to them and the people in
exchange for justice a technical and empty formula, it is idle to ask
me not to criticize them. As long as injustice is kept thus intrenched
by any court, I will protest as strongly as in me lies against such
action."
To repeat, as a matter of fact, Ives was not maimed; he was not
permanently injured; he was not deprived of the ability to earn his
livelihood. Nor did the Court of Appeals admit that by every moral
consideration Ives was entitled to recover as his due the money that
the law intended to give him. Had that point been before a court of
justice, however sympathetic and sentimental, I doubt very much
whether it could have held that Ives was entitled, by any moral
consideration whatever, to compel the railway company to
compensate him for the four or five weeks' loss of wages resulting
from no fault on its part but from his own carelessness. The
statements that "the court by its decision forces that man to stagger
through life maimed" and that "he lost the ability to earn his own
livelihood" were simply so much fiction, but, of course they were
very effective with emotional audiences and highly calculated to
inflame Mr. Roosevelt's hearers and readers against the courts. I
venture to assert that it would be difficult to find or indeed to
conceive a more unwarranted and unfair misrepresentation of the
facts actually before a court.
Another current misrepresentation is that the Supreme Court of the
United States in the Second Employers' Liability cases upheld as
constitutional a statute of Congress identical with the statute held
unconstitutional by the New York Court of Appeals in the Ives case.
The people are being told that the New York courts hold the
provision requiring due process of law in the fourteenth amendment
to mean one thing, whilst the Supreme Court of the United States
holds exactly the same provision in the fifth amendment to mean the
contrary. But those who will take the trouble to read the two statutes
will at once perceive that the act of Congress differs radically from
the New York Workmen's Compensation Act. The act of Congress,
although abolishing or restricting the rules as to fellow-servants'
acts, assumption of risk and contributory negligence, imposes
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