The American State from the Civil War to the New Deal: The Twilight of Constitutionalism and the Triumph of Progressivism 1107655013, 9781107655010

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The American State from the Civil War to the New Deal

The American State from the Civil War to the New Deal tells the story of constitutional government in America during the period of the “social question.” After the Civil War and Reconstruction, and before the “second Reconstruction” and cultural revolution of the 1960s, Americans dealt with the challenges of the urban and industrial revolutions. In the crises of the American Revolution and the Civil War, the Founders – and then Lincoln and the Republicans – returned to a long tradition of Anglo-American constitutional principles. During the Industrial Revolution, American political thinkers and political actors gradually abandoned those principles for a set of modern ideas, initially called Progressivism. The social crisis, culminating in the Great Depression, did not produce a Lincoln to return to the Founders’ principles, but rather a series of leaders – Theodore Roosevelt, Woodrow Wilson, and Franklin D. Roosevelt – who repudiated them. Congress and the Supreme Court eventually followed their lead. Since the New Deal, Americans have lived in a constitutional twilight, not having completely abandoned the natural-rights constitutionalism of the Founders, nor having completely embraced the entitlement-based welfare state of modern liberalism. paul d. moreno is the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College. He has taught at Hillsdale for thirteen years and has held visiting professorships at Princeton University and the University of Paris School of Law. He earned his doctorate under Herman Belz at the University of Maryland in 1994. Moreno is the author of From Direct Action to Affirmative Action: Fair Employment Law and Policy in America and Black Americans and Organized Labor: A New History.

The American State from the Civil War to the New Deal The Twilight of Constitutionalism and the Triumph of Progressivism

PAUL D. MORENO Hillsdale College

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, ny 10013–2473, usa www.cambridge.org Information on this title: www.cambridge.org/9781107655010 © Paul D. Moreno 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Moreno, Paul D., 1965– The American state from the Civil War to the New Deal : the twilight of constitutionalism and the triumph of progressivism / Paul D. Moreno. p. cm. Includes bibliographical references and index. isbn 978-1-107-03295-8 – isbn 978-1-107-65501-0 (pbk.) 1. United States – Social Policy. 2. Progressivism (United States politics) 3. United States – Politics and government. 4. United States. Constitution. I. Title. hn64.m834 2013 306.0973–dc23 2012028189 isbn 978-1-107-03295-8 Hardback isbn 978-1-107-65501-0 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

For my beloved children: Judy, Mark, Ruth, and Greg

Contents

Abbreviations Used in the Footnotes Acknowledgments Introduction part i. the old regime: 1870–1900 1 The Post-War Constitution Republican Leviathan

2

3

page xiii xv 1

7 7

Army and Nationality Army and Society: Labor and Pensions

10 13

The American System Land Grants and Education

16 18

The Judiciary and Private Rights

23

Distribution and Subsidy Swift and Diversity

23 27

The Extension of Swift The Crisis of the 1890s

28 32

The Labor Problem

32

The Trust Problem The Income Tax

36 40

The Election of 1896

43

part ii. early progressivism: 1900–1913 4 The New Jurisprudence

49

Historism and Historicism

49

Langdell and Scientism

50

vii

Contents

viii

The Analytical School Darwinism

51 52

Holmes and Pound

54

5 The Due Process Dialectic Natural Rights and the Antebellum Court The Fourteenth Amendment The Road from Munn The Fuller Court and Due Process 6 Toward a Federal Police Power

59 59 61 64 66 70

The Commerce Power and Antitrust

70

Organized Labor and Liberty of Contract Alcohol

70 76

Oleo Gambling

78 82

7 Rooseveltian Progressivism

86

The Holmes Appointment The Anthracite Strike

86 88

Pure Food The Mann Act

90 92

8 The Lochner Incident Precursors Lochner Aftermath 9 Court and Constitution in Crisis

96 97 98 102 106

Walter Clark

106

J. Allen Smith Herbert Croly

108 110

10 Taft and the Republican Crackup The New Nationalism

113 113

Roosevelt and the Judiciary

119

Schism

122

part iii. late progressivism: 1913–1933 11 Wilsonian Progressivism A Darwinian Constitution The Administrative State

129 129 130

Contents The 1912 Campaign Wilson and the Judiciary 12 The New Freedom

ix

132 134 138

The Tariff The Federal Reserve Act

138 140

The Clayton Antitrust Act Commission Government

143 144

Labor’s Gold Brick 13 The New Wilson

146 151

The Brandeis Nomination

151

Tariff and Farm Policies Child Labor

154 157

The Adamson Act The 1916 Election

160 161

14 The Great War

163

The Army and Social Reform The Financial Revolution

163 165

The Great Delegation Labor Policy

167 169

Sedition

170

15 The Return of the Regular Republicans Harding and Coolidge

177 177

Grants-in-Aid McNary–Haugenism

180 182

Muscle Shoals

184

Progressive Unease on the Court 16 The Taft Court

185 189

Personnel and Power Labor

189 191

Adkins and the Due Process Revival

192

Takings Civil Liberties

195 199

Prohibition The Progressive Attack

203 205

Contents

x

17 The Last Progressive Corporatism

210 210

Agriculture and Labor

212

The Cardozo Appointment The Depression

213 217

FDR The 1932 Election

220 222

part iv. the new deal: 1933–1940 18 The Hundred Days War Equivalents Planning: The Tennessee Valley Authority The National Industrial Recovery Act 19 To the Brink

231 231 236 238 242

Mixed Signals First Skirmishes

242 247

Black Monday

253

20 The Second New Deal The Second Hundred Days

257 257

The Court Responds Mandate?

263 269

The Sit-Down Strikes

272

21 The Court Fight The Plan

275 275

The Opposition The Parrish Switch

278 284

The Wagner Act Cases

288

The Social Security Cases 22 The Abortive Third New Deal

293 296

The Court-Packing Revival Opposition and Defeat

296 298

Reorganization and Purge

304

The End of the New Deal

307

Contents 23 The New Deal Court The Scorpions

xi

310 310

Diversity and Liability

317

The Double Standard Liberal Activism

321 324

Appendix A. Multipliers and Multiplicands: Hours v. Wages Laws

329

Appendix B. Losses in the Gold Clause Cases Primary Sources

331 333

Index

343

Abbreviations Used in the Footnotes

ALL ANB

CG CR CWWHT DHRP

H&R

LH

LLDB

LTR M&PP

NPP

American Landmark Legislation: Primary Materials, ed. Irving J. Sloan. 6 vols. New York: Oceana, 1978. American National Biography, ed. John A. Garraty and Marc C. Carnes, 24 vols. New York: Oxford University Press, 1999. Congressional Globe. Congressional Record. The Collected Works of William Howard Taft, 8 vols, ed. David H. Burton. Athens: Ohio University Press, 2001–04. Documentary History of the Franklin D. Roosevelt Presidency, ed. George McJimsey, 31 vols. Bethesda: University Publications of America, 2001. The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee, comp. Roy M. Mersky and J. Myron Jacobstein, 19 vols. Buffalo: Hein, 1977–96. The Economic Regulation of Business and Industry: A Legislative History of United States Regulatory Agencies, ed. Bernard Schwartz, 5 vols. New York: Chelsea House, 1973. Letters of Louis D. Brandeis, ed. Melvin I. Urofsky and David M. Levy, 5 vols. Albany: State University of New York Press, 1971–78. Letters of Theodore Roosevelt, ed. Elting E. Morison, 8 vols. Cambridge, MA: Harvard University Press, 1951–54. A Compilation of Messages and Papers of the Presidents, comp. James D. Richardson, 20 vols. New York: Bureau of National Literature, 1897–1916, and Supplement to the Messages and Papers of the Presidents. New York: Bureau of National Literature, 1929. National Party Platforms, 1840–1972, comp. Donald Bruce Johnson and Kirk H. Porter. Urbana: University of Illinois Press, 1973.

xiii

xiv

PP&A

PPHH

PWW TRM TRN

Abbreviations Used in the Footnotes The Public Papers and Addresses of Franklin D. Roosevelt, comp. Samuel I. Rosenman, 13 vols. New York: Macmillan and Harper, 1938–50. The State Papers and Other Public Writings of Herbert Hoover, ed. William Starr Myers, 2 vols. Garden City, NY: Doubleday, 1934. Papers of Woodrow Wilson, ed. Arthur S. Link, 69 vols. Princeton: Princeton University Press, 1966–94. The Works of Theodore Roosevelt, Memorial edition, ed. Hermann Hagedorn, 20 vols. New York: Scribner’s, 1925. The Works of Theodore Roosevelt, National edition, ed. Hermann Hagedorn, 20 vols. New York: Scribner’s, 1926.

Acknowledgments

I am indebted to many individuals and institutions for assistance in writing this book. A summer stipend from the National Endowment for the Humanities helped to begin the project. I am extremely grateful to Robby George and Brad Wilson for enabling me to spend a wonderful year as a visiting Fellow at the James Madison Program in American Ideals and Institutions at Princeton. The Earhart Foundation also helped make that happen. I would like to thank the following publishers for their courtesy in allowing me to use previously published material of mine in this book: Michigan Bar Journal, for material from Moreno, Paul, “The Verdict of History: A History of the Michigan Supreme Court through Its Significant Cases,” Michigan Bar Journal 87 and 88 (2008–09), which appeared in a series of articles that I wrote for the Michigan Supreme Court Historical Society and that were published in the Michigan Bar Journal. I would like to express my gratitude to the Society for sponsoring that research. And Cambridge University Press, for material from my article Moreno, Paul, “Organized Labor and American Law: From Freedom of Association to Compulsory Unionism in American Labor History,” Social Philosophy, Volume 25, Issue No. 2, July 2008, pp. 22–52, published by Cambridge University Press and generously sponsored by the Liberty Fund. My colleagues and friends at Hillsdale were also indispensable. Paul Rahe was particularly helpful. I would like especially to acknowledge Larry Arnn and David Whalen, for nobody did more than they to keep me in the academic world. Ryan Walsh, David Morrell, and Derek Muller are just three of the innumerable great students who helped – the kind that keep us on our mettle and genuinely show that teaching and scholarship are one. I am also grateful for the work of the librarians at Hillsdale College, particularly Judy Leising in the Interlibrary Loan department. I had the benefit of research assistance from Michael Chalberg and Brianna Landon, funded by the Koch Foundation, and from Kirk Higgins, funded by the Kirby

xv

xvi

Acknowledgments

Center. Special thanks for their help to Lewis Bateman, Senior Editor, Political Science, History, and Jewish Studies at Cambridge University Press; to the anonymous reviewers of the manuscript; and to Ronald Cohen, who edited the manuscript diligently, with a light hand and with concern for the integrity of the text.

Introduction

For several generations, historians have told the story of twentieth-century America as a triumphant tale of the ever-expanding power of the central government, which has liberated individuals and a proliferation of minority groups from the shackles of inequality, prejudice, and the repressive ideas of human nature itself. In a reversal of the classically liberal “Whig history” of the preceding century, progressives depicted history as the rise of state power and as the source of genuine liberty. The election of 2008 and the Obama administration have called this narrative into question and provoked an unprecedented debate over the nature and purpose of American government. No previous expansion of the national welfare state brought the fundamental principles of constitutionalism into such high relief. The persistence of constitutionalism in the thinking of the populace left contemporary liberals nonplussed. Congressional leaders were flummoxed when questioned as to the constitutional source of Congress’s power to enact the Patient Protection and Affordable Care Act of 2009. The controversy over the Act suggested that the basic features of the Constitution still had life. The Supreme Court and the American public heard lively arguments as to whether Congress could delegate legislative power to bureaucrats; whether it could exceed its constitutionally enumerated powers; whether it could usurp the reserved powers of the states; and whether it could use the taxing power to compel individuals to purchase health insurance. At the same time, the nation’s financial plight provided an alarming indication that the sort of unlimited government represented by the Act makes government not only “destructive of the ends for which governments are instituted among men,” but positively selfdestructive as well. This history shows how we came to occupy this twilight zone between constitutional and unlimited government. “Constitutional” government means the rule of law or government limited by a constitution. American constitutionalism of the Founding era rested upon several broadly shared assumptions. While they disputed constitutional interpretation, the Founders all agreed that the Constitution had a fixed meaning that bound political actors, derived from a 1

2

Introduction

political philosophy superior and anterior to the Constitution. Historians have given different degrees of emphasis to elements that composed this common understanding. The philosophy was obviously Lockean, but also had elements of Scottish commonsense philosophy. Montesquieu did a lot to temper the radicalism of Enlightenment philosophy and fit it into English history and tradition. While it allowed more room for individualism, and particularly commercial endeavor, than ancient constitutionalism, it did not jettison the idea of a common good – it was thus both liberal and republican. The variegated, broadly tolerant religious denominations of colonial America – both evangelical and enlightened – were able to support the principles of the Revolution. Similarly, legal expressions that historians have often used to contrast liberal and republican principles were in fact complementary. Sic utere tuo ut non alienum laedas (use your own property in a way that does not harm others’ equal right) did not undermine that of salus populi suprema lex (the welfare of the people is the supreme law). Rather, they reinforced the ancient constitutional principle that public power must be used only for genuinely public purposes. The most common term for unconstitutional legislation in the nineteenth century was “class legislation” – public power exercised for a part of the polity, rather than the whole, just as Aristotle defined it. Neither laissez-faire anarchists nor communitarian statists, the Founders were constitutionalists. They recognized the need for government, but also the need to keep government limited. This followed from their understanding of human nature: Men were not comradeangels who needed no government, nor ruler-angels who could be entrusted with unlimited power; neither were they citizen-devils who needed despotic rule, nor ruler-devils who could not be entrusted with any power to rule whatsoever. This history, then, is an analytical narrative, combining the insights of political theorists of constitutionalism with the empirical work of legal, economic, and social historians. Above all, it shows how the battle between traditional constitutionalism and progressive statism manifested itself in concrete policy choices, in the contentions of interest groups and parties as well as in the realm of ideas. Part I discusses the challenges of Republican policy in the late nineteenth century. Lincoln and the Civil War Republicans maintained a commitment to the Founders’ principles of constitutionalism; their eradication of slavery brought America closer to those principles. But their adoption of Hamiltonian policies of national mercantilism raised serious constitutional questions, and produced the social and economic problems of the urban and industrial revolution. Part I concludes with a discussion of the federal judiciary’s role in constitutional interpretation in these years. Historians of the last generation have gone a long way toward dispelling the progressives’ caricature of a “laissez-faire jurisprudence” that served the interests of big business; this account builds on that work. Far from being mere agents of the capitalist class, late nineteenth-century judges earnestly engaged in the difficult task of reconciling government power and constitutional limits. Part II treats the development of early progressive thought and policy under the Republican administrations of Theodore Roosevelt and William Howard

Introduction

3

Taft. Just as various strands composed a common Founding-era constitutionalism, progressivism displayed many varieties or emphases but shared certain core ideas. The central tenet of progressivism was the development of state power to deal with the problems of the urban and industrial revolutions, and consequently a hostility to the idea of fixed constitutional limitations. A variety of modern political and legal theories – historicism, utilitarianism, Darwinism, sociological jurisprudence, legal realism – repudiated the natural rights constitutionalism of the Founding. Congress began to slip the leash of constitutional limitations as it developed a “federal police power” out of the Constitution’s commerce and taxing powers. Theodore Roosevelt expressed a new, plebiscitary kind of executive power, beginning in insular imperialism and spilling over into domestic policy. It culminated in his radical “New Nationalism” campaign of 1912. The federal judiciary, for the most part, went along with the expansion of federal and state power in these years, though its occasional insistence on constitutional limits made it a progressive ogre, its animus focusing almost obsessively on such cases as Lochner v. New York. Part III discusses the advanced Progressivism of Woodrow Wilson. Wilson expressed profound hostility to the principles of the Founders in his early, academic life, but adopted a more cautious and ambivalent position in his early political career. The electoral campaign of 1916, and especially the First World War, brought about a new phase of Progressivism. The post-war decade saw a reaction to this unprecedented statism, principally in Presidents Harding, Coolidge, and the Supreme Court. But it also saw considerable maintenance, and even extension, of two decades of progressive policy. Herbert Hoover, in many ways the last influential progressive, became a tragic figure precisely because he believed some constitutional limits must control government, even in the severe economic straits of the Great Depression. Part IV describes the culmination of the constitutional revolution in the New Deal. Though Franklin D. Roosevelt had none of Wilson’s academic progressive background, he expressed Wilsonian ideas more forcefully in his presidential campaign and administration. His Commonwealth Club Address, outlining the idea of a “second Bill of Rights” and an “economic constitutional order,” became the basis of all subsequent twentieth-century “liberalism.” Roosevelt rhetorically transvalued the values of the Founding, substituting an entitlementbased ethos for the rights-based one of the Founding. The Supreme Court, as ambivalent as it had been since the beginning of the century, posed the last obstacle to the establishment of a centralized bureaucratic state. Roosevelt’s profound overestimation of the public’s support for the New Deal, and his equally profound underestimation of its support for constitutionalism and the Supreme Court, led him into the dramatic 1937 “court-packing” fight that temporarily set back the liberal program. Liberalism has ever since been principally concerned with the completion of the New Deal revolution.

part i THE OLD REGIME

1870–1900

1 The Post-War Constitution

republican leviathan Abraham Lincoln told Congress at the outset of the Civil War, “Our popular government had often been called an experiment. Two points in it our people have already settled – the successful establishing and the successful administering of it. One still remains – its successful maintenance against a formidable internal attempt to overthrow it.”1 The Union government put down the rebellion within the limits established by the original Constitution.2 And the abolition of slavery made the original Constitution more perfect. But scholars still claim that the Republican party used the war to establish a “leviathan state,” or at least its prototype. Charles and Mary Beard advanced this argument in their 1927 classic, The Rise of American Civilization, calling the Civil War the “second American Revolution.” They depicted the Civil War as a clash of economic classes, resembling late republican Rome, the seventeenth-century “bourgeois” English Civil War, or the French Revolution.3 The Republicans furthered this revolution through the non-military legislation of the Civil War Congresses – the protective tariff, banking legislation, railroad promotion, and contract labor law, as well as the Fourteenth Amendment and the federal judicial power. The “Second American Revolution,” the Beards claimed, brought about the triumph of “the party of industrial progress and sound money.”4 1

2

3

4

Message to Congress, 4 Jul. 1861, in Abraham Lincoln: His Speeches and Writings, ed. Roy P. Basler (New York: Da Capo, 2001 [1946]), 608. Herman Belz, “Lincoln and the Constitution: The Dictatorship Question Reconsidered,” in Abraham Lincoln, Constitutionalism, and Equal Rights (New York: Fordham University Press, 1998); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Knopf, 1973). Charles A. and Mary R. Beard, The Rise of American Civilization, 2 vols. (New York: Macmillan, 1927), II: 53. The Beards appear to misread the meaning of “social war” in the Roman context. The great Social War of 91–88 b.c. was a war between Rome and its allies (socii), not a war between classes within Rome. The American Civil War was indeed a social war in this sense, establishing the nature of the American Union as a federal government, not a confederation of allied states. Ibid., 108, 111.

7

8

The Old Regime: 1870–1900

Subsequent works reiterated the argument that the Civil War had ushered in an “American Leviathan.” According to Roy F. Nichols, the Civil War Congress undertook “a more or less unconscious experimentation in long-range planning, whereby through grants and subsidies and legal enactments it was shaping what would turn out to be a new Leviathan.”5 Leonard P. Curry concurred, stating that “The 37th Congress ushered in four decades of neo-Hamiltonianism; government for the benefit of the privileged few.”6 More recently, Wilfred McClay wrote “It is certainly tempting, in this connection, to recur to the Beardian argument that the war represented a second American Revolution.”7 In today’s standard history of the Civil War era, James McPherson adds, “this legislation did indeed help fashion a future different enough from the past to merit the label of revolution.”8 Authors of a libertarian stripe, who depict Lincoln as a Constitutiontrampling wartime dictator, also see a legacy of statism arising out of the political economy of the Republican party. Jeffrey Rogers Hummel argues that “in contrast to the whittling away of government that had preceded Fort Sumter, the United States had commenced its halting but inexorable march toward the welfare-state of today.”9 A similar theme marks the “new institutionalist” political scientists, particularly in the work of Richard F. Bensel. The Republican party kept the South in the Union, and in doing so redistributed income from the South and West to underwrite the industrialization of the Northeast and “Great Lakes littoral.” Republicans enacted “an extremely harsh program of interregional redistribution that favored the industrial and financial core,” Bensel argues. “Union victory in the Civil War,” he continues, “consolidated national sovereignty around a reinvigorated central government, retained the impoverished market and robust cotton exports of the South in the national political economy, and placed the interests most closely associated with northern industry and finance in control of the central state.”10 But Republicans empowered this central state only to benefit a new plutocracy. They made sure that state power did not go so far as to threaten to bring about further redistribution. A “massive redistribution of wealth from southern agriculture to northern industry” accompanied “the brutal repression of lower classes 5 6

7

8

9

10

Roy F. Nichols, American Leviathan (New York: Harper & Row, 1966), 202, emphasis added. Leonard P. Curry, Blueprint for Modern America: Nonmilitary Legislation of the First Civil War Congress (Nashville: Vanderbilt University Press, 1968), 147. Wilfred M. McClay, The Masterless: Self and Society in Modern America (Chapel Hill: University of North Carolina Press, 1994), 24. James McPherson, Battle Cry of Freedom: The Civil War Era (New York: Oxford University Press, 1988), 452. Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free Men: A History of the American Civil War (LaSalle, IL: Open Court, 1996), 358. Hummel notes that, as to the original Constitution, “My hunch is that a thorough investigation would resurrect certain features of Beard’s economic interpretation, with a new public-choice emphasis on northern rent-seeking.” Ibid., 31. Richard F. Bensel, The Political Economy of American Industrialization, 1877–1900 (New York: Cambridge University Press, 2000), 201, 349.

The Post-War Constitution

9

throughout the nation.”11 Sectional animosity divided the common class interests of Northern labor and Southern agrarians, until the new intersectional class coalition of the New Deal, united by “a common assault on the privileges of northern capital,” arose to redistribute the Republicans’ ill-gotten gains.12 These versions of populist and progressive history fed the New Deal. That view pervades Franklin D. Roosevelt’s 1932 campaign speech to the Commonwealth Club in San Francisco. Roosevelt laid out the argument that Alexander Hamilton had envisioned a system under which “individual men and women will have to serve some system of Government or economics,” rather than having the government and economy serve individual men and women. The Jeffersonian and Jacksonian Democrats forestalled this until the Civil War, when government’s role shifted to economic promotion, to realize the great potential of the Industrial Revolution. Hamiltonian–Republican policy had produced a group of “financial Titans, whose methods were not scrutinized with too much care, and who were honored in proportion as they produced the results, irrespective of the means they used. The financiers who pushed the railroads to the Pacific were always ruthless, often wasteful, and frequently corrupt; but they did build railroads, and we have them today.” But now, Roosevelt claimed, “equality of opportunity as we have known it no longer exists.” The nation was now dominated by “some six hundred odd corporations . . . we are steering a steady course toward economic oligarchy, if we are not there already.”13 These forces had become too powerful, and now that “the day of enlightened administration has come,” Roosevelt called for “a re-appraisal of old values.” He went on to call for “an economic declaration of rights, an economic constitutional order,” which he would elaborate throughout the New Deal, and later particularly in his 1944 “second bill of rights” message to Congress.14 Roosevelt’s address hinges on a Beardian historical claim about the role that the federal government had played in the construction of the old political economy.15 The Republicans had created privileged “robber barons.” Just as the national monarchs in European history had put an end to the local tyranny of the medieval barons, Roosevelt promised that a new national government would

11

12

13 14

15

Ibid., 527; David Montgomery, Beyond Equality: Labor and the Radical Republicans, 1862–72 (New York: Vintage, 1967). Richard F. Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859– 77 (Cambridge: Cambridge University Press, 1990), 433. Campaign Address, San Francisco, Calif., 23 Sep. 1932, PP&A I: 743, 747, 750–51. On the significance of which see Cass R. Sunstein, The Second Bill of Rights: F.D.R.’s Unfinished Revolution and Why We Need It More than Ever (New York: Basic, 2004). On the background and significance of this speech, see Robert Eden, “On the Origins of the Regime of Pragmatic Liberalism: John Dewey, Adolf A. Berle, and FDR’s Commonwealth Club Address of 1932,” Studies in American Political Development 7 (1993), 74–150. I am here principally concerned with the historical accuracy of Roosevelt’s claims. For a simpleminded restatement of the populist–progressive–New Deal interpretation, see Jack Beatty, The Age of Betrayal: The Triumph of Money in America, 1865–1900 (New York: Knopf, 2007).

The Old Regime: 1870–1900

10

free Americans from the “robber barons” of the industrial age. But how accurate is that history? To what extent did the post-war Republicans establish a political economy that fundamentally departed from the limited Constitution of the founders? Or, if they enacted policies that remained within the limits of that Constitution, did they nevertheless spawn a plutocracy?

army and nationality The strongest evidence against the revolutionary impact of the Civil War Republican system lies in the institution most responsible for the Union victory – the Army. The Radical Republicans failed to use it as a long-term occupation force in the former Confederacy, and nobody proposed to use a permanent, peacetime, conscript army as a nationalizing force, as had many modernizing nation-states.16 Rather, the Army quickly demobilized and resumed its antebellum character as a small, minimally funded volunteer frontier constabulary. The text of the Constitution provided great potential for innovative uses of the Army. To be sure, Copperheads made ingenious arguments against the raising of the Civil War Army, particularly by highlighting the Constitution’s textual distinction between “the militia” and “the army.” Some claimed, for example, that the Constitution only permitted Congress “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” (italics added), or that Congress could only “raise and support armies” by voluntary means.17 Governor Horatio Seymour of New York opposed conscription as beyond the constitutional power of the Union government. Under the guise of suppressing a rebellion, he argued, the Union government was itself engaged in “revolution,” trampling on the Constitution. The Conscription Act “threatens the integrity of the States, and trenches upon personal rights, opposed as it is to the genius of a free government.”18 Chief Justice Roger B. Taney drafted an opinion declaring the Act to be unconstitutional, though a case providing the occasion to publish it never arose.19 16

17

18

19

Ward M. McAfee, “Reconstruction Revisited: The Republican Public Education Crusade of the 1870s,” Civil War History 42 (1996), 136. Leon Friedman, “Conscription and the Constitution: The Original Understanding,” Michigan Law Review 67 (1969), 1493–1552. Part of a challenge to the Vietnam-era draft, this article reviews historical arguments against the constitutionality of conscription. See also Michael J. Malbin, “Conscription, the Constitution, and the Framers: An Historical Analysis,” Fordham Law Review 40 (1972), 805–26; Charles A. Lofgren, “Compulsory Military Service under the Constitution: The Original Understanding,” in “Government from Reflection and Choice”: Constitutional Essays on War, Foreign Relations, and Federalism (New York: Oxford University Press, 1986). Speeches at Buffalo, NY, 26 Oct. 1863, and Albany, NY, 9 Sep. 1863, in Public Record . . . of Horatio Seymour, ed. Thomas M. Cook and Thomas W. Knox (New York: I. W. England, 1868), 163–65, 366–67. “Thoughts on the Conscription Law of the United States,” in The Military Draft: Selected Readings on Conscription, ed. Martin Anderson (Stanford, CA: Hoover Institution Press, 1982), 207–18.

The Post-War Constitution

11

But Lincoln regarded Congress’s power “to raise and support armies” as plenary. “They tell us the law is unconstitutional,” Lincoln said of the first Conscription Act. He wondered how anyone could doubt a power granted in such “express terms.” Lincoln admitted that parties might quibble over implied powers, “but this is the first case in which the degree of effrontery has been ventured upon, of denying a power which is plainly and distinctly written down in the Constitution.” Quoting the “raise and support armies language,” he concluded that “The whole scope of the conscription act is ‘to raise and support armies.’ There is nothing else in it. . . . The case simply is that the Constitution provides that the Congress shall have power to raise and support armies; and, by this act, the Congress has exercised the power to raise and support armies. This is the whole of it. It is a law made in literal pursuance of this part of the United States Constitution.”20 The extension of Lincoln’s plain-text argument suggested even greater potential for the Army in the post-war years, since the Constitution is silent as to the ends for which Congress could raise and support armies. In other words, if a power “to raise and support armies” allowed Congress to do so by any means, could it not also allow Congress to do so for any ends?21 In 1824, Virginia Representative Philip P. Barbour, in a debate on the tariff, noted by analogy that Congress could not maintain a navy merely to give employment to seamen.22 The Union raised more than 1 million officers and men by 1865, and conducted the war in a largely consensual, voluntaristic fashion. For all the constitutional and political controversy over national conscription, only about 7 percent of the Union soldiers were draftees. Historians have aptly described it as “not conscription at all, but a clumsy carrot and stick device to stimulate volunteering,” and so mild as to be “the most decent the world had known.”23 Even historians who see a significant centralizing impact of the war compare Union “mercantilism” with Confederate “socialism.”24 As the standard history of the U.S. Army puts it, “the Civil War was not yet a G.N.P. war on the order of World War II, demanding the massive mobilization of the whole national economy.”25 The raising of the Union Army seems rather to confirm the strength of constitutional federalism during the Civil War.26 20

21

22 23

24

25

26

“Opinion on the Draft,” Sept. 1863, in Collected Works of Abraham Lincoln, ed. Roy P. Basler, 9 vols. (New Brunswick: Rutgers University Press, 1953), VI: 446. Friedman, “Conscription and the Constitution,” 1540, claims that “the framers gave the federal government wide powers to use its army but not to gather it, while the militia’s functions were specified but its manpower source was limited.” Annals of Congress, 26 Mar. 1824, p. 1919. McPherson, Battle Cry of Freedom, 605; Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Knopf, 1973), 220. Hummel, Emancipating Slaves, Enslaving Free Men; Bensel, Yankee Leviathan, 95, 134; Bensel, “Southern Leviathan: The Development of Central State Authority in the Confederate States of America,” Studies in American Political Development 2 (1987), 68–136. Russell F. Weigley, History of the United States Army, enlarged ed. (Bloomington: Indiana University Press, 1984), 201. Rachel A. Shelden, “Measures for a ‘Speedy Conclusion’: A Reexamination of Conscription and Civil War Federalism,” Civil War History 55 (2009), 471.

12

The Old Regime: 1870–1900

The rapid demobilization of the Army placed significant limits on Reconstruction. Despite the great achievement of the Army, the American people did not lose their ingrained suspicion of standing armies in peacetime. The Northern electorate would not support an indefinite occupation of the South. The strains of Reconstruction, particularly between the executive and legislature over control of the Army, may have brought the United States closer to a coup d’état than is usually recognized.27 But such threats were fleeting, and the Army quickly returned to its antebellum role, with no fundamental alteration in the character of the institution or the veterans who had served in it. Though the war experience may have profoundly shaped the consciousness of some intellectuals, and perhaps had some impact on Gilded Age business, these influences also seem rather isolated and idiosyncratic.28 The Army produced little of the nationalizing, homogenizing effects that war often brings about. Consider the contrast between the Republicans’ use of the United States Army with the nationalizing role of the French Army in the Third Republic. After the Franco-Prussian war, the French used military service as “the school of the fatherland,” helping to break down provincial animus against the central state and helping to turn “peasants into Frenchmen.” The Army promoted education and literacy (in French – before 1870 a foreign language to many provincial Frenchmen). It exposed the peasantry to new, metropolitan standards. “In diet, lodging, bedding, hygiene, dress, the soldier’s wellbeing was well above the standards of the rural working class,” Eugen Weber notes. The Third Republic used the Army as an “agency for emigration, acculturation, and in the final analysis, civilization, an agency as potent in its way as the schools, about which we tend to talk a great deal more.”29 A potent force in the establishment of modern bureaucratic states on the European continent, the Army played no such role in nineteenth-century America. Anti-military sentiment returned to its antebellum, old Republican

27

28

29

Richard H. Kohn, “The Constitution and National Security: The Intent of the Framers,” in The United States Military Under the Constitution of the United States, 1789–1989, ed. Kohn (New York: New York University Press, 1991), 81. Cf. Harold Hyman, “Ulysses Grant I, Emperor of America?: Some Civil-Military Continuities and Strains of the Civil War and Reconstruction,” ibid., 180; William A. Russ, Jr., “Was There Danger of a Second Civil War during Reconstruction?” Mississippi Valley Historical Review 25 (1938), 39–58; Mary R. Dearing, Veterans in Politics: The Story of the G.A.R. (Baton Rouge: Louisiana State University Press, 1952), 107, 142–47. Carl R. Fish, “Back to Peace in 1865,” American Historical Review 24 (1919), 435–43. For a critical view, see Arthur A. Ekirch, The Civilian and the Military (New York: Oxford University Press, 1956), 90–120; McClay, The Masterless; Mark R. Wilson, The Business of Civil War: Military Mobilization and the State, 1861–65 (Baltimore: Johns Hopkins University Press, 2006), 191–92, 208–25. Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Strauss and Giroux, 2001), depicts Oliver Wendell Holmes, Jr., Charles Sanders Pierce, William James, and John Dewey as having been decisively shaped by the war, but only Holmes’s case can be said to support the argument. Eugen Weber, Peasants into Frenchmen: The Modernization of Rural France, 1870–1914 (Stanford: Stanford University Press, 1976), 300–02.

The Post-War Constitution

13

form.30 Indeed, the Army barely survived Reconstruction. In 1877, Congress did not enact an Army appropriation until November, and “for the better part of the year soldiers had to depend on loans from frequently usurious bankers (though enlisted men did receive rations).”31 Though the Navy saw significant expansion by the 1880s, the nation’s ground forces became even more decentralized. While the U.S. Army remained at its antebellum level of about 25,000 soldiers, the states greatly enlarged their militia forces, now referred to as the “National Guard.”32

army and society: labor and pensions The Army did play a new role in the postbellum political economy in labor disturbances, and its promotion of pensions for veterans. Historians frequently observe that in 1877 the national government abandoned the effort to protect the freedmen in the South, and turned its attention to protecting big business in the North.33 On this view, the Army served the Northern bourgeois elites who had won the Civil War. Though not aristocratic in the Old World sense, the middle-class officer corps led the way in this betrayal.34 The use of the Army to put down strike-related violence did not raise significant constitutional problems, apart from the rather thin army-versus-militia questions of the Civil War. Article IV of the Constitution provides that “The United States shall . . . protect each of [the states] . . . on Application of the Legislature, or of the Executive (when the legislature cannot be convened) against domestic Violence.” Presidents had used the Army in strike situations before the war.35 And, at least until the Pullman Strike of 1894, when President Cleveland intervened over the objections of Illinois Governor John P. Altgeld, presidents had employed the Army upon the request of the states. But presidents and officers were reluctant to use national forces, and those forces always acted with notable restraint and great success in restoring 30

31 32

33

34

35

Leonard D. White, The Republican Era: A Study in Administrative History (New York: Free Press), 134. Weigley, History of the United States Army, 270. Allan R. Millett and Peter Maslowski, For the Common Defense: A Military History of the United States of America (New York: Free Press, 1984), 247; Peter Karsten, “Armed Progressives: The Military Reorganizes for the American Century,” in Building the Organizational Society: Essays on Associational Activities in Modern America, ed. Jerry Israel (New York: Free Press, 1972), 218. Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–77 (New York: Harper & Row, 1988), 582; Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009), 138. Millett and Maslowski, For the Common Defense, 247; Jerry M. Cooper, The Army and Civil Disorder: Federal Military Intervention in Labor Disputes, 1877–1900 (Westport, CT: Greenwood, 1980), 30. Richard B. Morris, “Andrew Jackson, Strikebreaker,” American Historical Review 55 (1949), 54–68.

14

The Old Regime: 1870–1900

order.36 But any law-enforcement agency called out to restore order in violent industrial disputes was bound to take the side of the owners, since the strikers almost always resorted to violence, intimidation, or other unlawful action, while the owners and non-strikers simply wanted to carry on their business. The predominant values of liberalism and property rights meant that the state would inevitably protect the rights of employers to carry on their businesses and of non-striking workers to work.37 Historians have frequently accused the federal government of a bias against organized labor in these conflicts. But history discloses no such simple story of law as a class instrument. In the 1880s, the Army protected Chinese railroad workers from white unionists, who assaulted and killed those who would not join their strike. This intervention stands out as “a justifiable call for federal assistance in labor-related upheaval.”38 This effort, “to rid themselves of a despised racial minority, which they believed undercut their economic well-being,” was particularly ugly, but only its racial aspect distinguished it from any other violent conflict between strikers and non-strikers. Similarly, when the Army helped to break the Pullman strike of 1894, it was assisted by African-American workers, who were barred from Eugene V. Debs’s American Railway Union.39 Although voices inside and outside the Army called for an expansion of its forces and resources to deal with labor problems, Congress made no alteration in that policy in the late nineteenth century. Most labor disputes continued to be policed at the state and local level. Despite the Army’s involvement in high-profile clashes, “the use of federal troops in industrial upheavals had a qualitative rather than a quantitative importance.”40 The Army role in labor disputes did not rise to a constitutionally significant level. The Army’s veterans did turn themselves into an effective lobby for benefits, under the leadership of the Grand Army of the Republic (GAR). Although demobilization and return to civilian life ensued rapidly, over the course of the post-war decades the government established an expansive system of pensions for disabled veterans and their dependents. Congress had granted pensions to veterans of earlier wars; some 11,000 were receiving benefits when the Civil War began. By the end of the century, one-third of Northern men over 65 (and some Southern Union Army veterans) received pensions. Between 1880 and 1910, 25 percent of federal expenditures went for pensions, often the largest item in the 36

37

38 39

40

Ibid., 17; Jerry M. Cooper, “Federal Military Intervention in Domestic Disorders,” in The United States Military under the Constitution of the United States, 125. Cooper, The Army and Civil Disorder, 238; Hugh Davis Graham and Ted Robert Gurr, The History of Violence in America: A Report to the National Commission on the Causes and Prevention of Violence, rev. ed. (New York: New York Times, 1970), 281; Cooper, “Federal Military Intervention,” 128; Cooper, The Army and Civil Disorder, 17. Cooper, The Army and Civil Disorder, 88. Susan E. Hirsch, “The Search for Unity among Railroad Workers: The Pullman Strike in Perspective,” in The Pullman Strike and the Crisis of the 1890s: Essays on Labor and Politics, ed. Richard Schneirov and Nick Salvatore (Urbana: University of Illinois Press, 1999), 50. Cooper, The Army and Civil Disorder, xiv, 82.

The Post-War Constitution

15

budget after debt service. Perhaps 20 percent of all elderly Americans were pensioned by 1910, a rate comparable with Germany and Denmark. This remarkably activist program by a putatively laissez-faire state might be considered the first national system of social insurance.41 But this peculiar system conformed neither to American history nor to that of Western European welfare-state development. The pensions raised no significant constitutional questions other than those associated with the larger question of Congress’s power to raise and support an army to put down the Southern rebellion. They provided exactly the kind of incentive that the government would have to use to recruit an all-volunteer force, or compensation for those conscripted. Critics depict the pension system as a redistributive scheme to keep the Republican Party coalition together. Pension benefits went primarily to rural and smalltown voters in the Midwest. These benefits provided a sort of bribe to keep the support of these voters for the lynchpin of the Republican’s policy, the tariff, which benefited the Northeast.42 But, rather than being a well-crafted cog in an elaborate and effective political machine, the pension system (like much of the tariff) seems more accidental and ad hoc. The political bidding for the veteran vote began with the Democrats when they took over the House of Representatives in 1874. Tight party competition drove the extravagance of the pension system in the last quarter of the century. The issue waned after the Republicans re-established their control of the national government in 1897, and as the natural lives of Civil War veterans ended. While some progressives looked to the Civil War pension system as a model for the construction of a welfare state, more saw it as a model to shun, an object lesson in the defects of party- and patronage-based policy.43 In sum, the return of the Army to its antebellum status displays the significant fidelity of the Republicans to the constitutionalism of the Founding.44 This realized a significant hope of the Constitution-makers, that the Constitution would provide a “peace pact” among the states, preventing interconfederal wars, and the military establishments and taxes that went with them.45 Publius noted, in response to those who feared that the new Constitution would result in a standing army, that standing armies were more likely in a fragmented confederacy than in a united federal union.46 Washington also noted in his Farewell Address that constitutional union would obviate the need for dangerous and 41

42 43 44 45

46

Peter Zavodnyik, The Rise of the Federal Colossus: The Growth of Federal Power from Lincoln to F.D.R. (Santa Barbara, CA: Praeger, 2011), 139; Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap, 1992); Hummel, Emancipating Slaves, Enslaving Free Men, 331. Bensel, Political Economy of American Industrialization, 458. Dearing, Veterans in Politics, 15; Skocpol, Protecting Soldiers and Mothers, 115, vii. Skocpol, Protecting Soldiers and Mothers, 44. David C. Hendrickson, Peace Pact: The Lost World of the American Founding (Lawrence: University Press of Kansas, 2003). Federalist 41.

The Old Regime: 1870–1900

16

expensive military establishments.47 The anti-militarist reaction after the Civil War paralleled a similar reaction after the Revolutionary War. Aware that regular armies were necessary to win wars, Americans still recognized that such armies threatened constitutionalism. And they did not like to be reminded that the need for regular armies exposed the limits of popular virtue.48 Ultimately the Army became only a metaphor, however powerful, in the construction of American statism. In the late nineteenth century, organized labor used military imagery, as in the “Knights of Labor” and “strikes” and “pickets.” Other popular protests included “Coxey’s Army.” Edward Bellamy imagined the nation organized into an industrial army along the lines of the Grand Army of the Republic. Theodore Roosevelt’s 1910 address to Union Army veterans likened big business to the antebellum slave power. Pragmatic philosopher William James sought a “moral equivalent of war” that would galvanize citizens and make them willing to make the same sacrifices for the public good in peacetime as they did in war. The First World War, it is commonly noted, provided a “rehearsal” for the New Dealers, with almost every New Deal agency having a wartime precursor. Franklin D. Roosevelt frequently employed martial imagery in his speeches, particularly in his first inaugural, and New Deal agencies such as the National Industrial Recovery Administration (under General Hugh Johnson) and the Civilian Conservation Corps used military props. But so deep was Anglo-American hostility to peacetime armies, so fundamentally was the United States a liberal society, that the Army could only be used in this symbolic, rhetorical way as a minor part of the general resort to crisis or emergency power.49

the american system The Republicans’ revival of the antebellum “American System” of Alexander Hamilton and Henry Clay – based on protective tariffs, banks, and internal improvements – also remained within antebellum constitutional limits.50 The constitutional power to enact a protective tariff was hardly questioned before the 1832–33 nullification crisis. Stronger arguments were made that the tariff was unfair in its distribution of burdens and benefits. Though abuses of the

47

48

49

50

“Farewell Address,” in George Washington: A Collection, comp. William B. Allen (Indianapolis: Liberty Fund, 1988), 516. Charles Royster, A Revolutionary People at War: The Continental Army and American Character, 1775–83 (New York: W. W. Norton, 1979). Michal R. Belknap, “The New Deal and the Emergency Powers Doctrine,” Texas Law Review 62 (1983), 67–109; Roger I. Roots, “Government by Permanent Emergency: The Forgotten History of the New Deal Constitution,” Suffolk University Law Review 33 (2000), 259–92. I explore these programs in greater detail in “‘The Legitimate Object of Government’: Constitutional Problems of Civil-War Era Republican Policy,” in Constitutionalism in the Approach and Aftermath of the Civil War, ed. Johnathan O’Neill and Paul D. Moreno (New York: Fordham University Press, 2013).

The Post-War Constitution

17

protectionist system are hard to deny, they were also easily and frequently exaggerated. The wartime national banking system is best understood as the restoration of a national power that had been usurped by the states. The debate over the first Bank of the United States, and especially James Madison’s conflicting conclusions as to its legitimacy, attests to its difficulty as a constitutional problem. When the Jacksonians destroyed the second Bank of the United States, the Supreme Court made a stunning reversal when it accepted state bank notes as currency.51 When the Civil War Congress enacted the first paper currency not redeemable in specie, the Supreme Court similarly executed a dramatic reversal in the Legal Tender Cases.52 While libertarians condemn the late-nineteenthcentury financial system for destroying an edenic antebellum period of “free banking,” and the populist–progressive tradition scores it for starving the South and West of capital and keeping them in a “colonial” condition, these complaints are also exaggerated. The continental railroad system that the Civil War Congress promoted was even more vilified than the tariff and the banks. A strong argument can be made that the federal government departed most from the Founders’ constitutional limits on the issue of internal improvements than on any other. Though some state judges – most notably Thomas McIntyre Cooley of the Michigan Supreme Court – argued that railroads were not a genuinely “public purpose” for which states could raise taxes, the federal courts and the Supreme Court protected them.53 With the railroads constructed and here to stay, the question of their regulation produced the first important federal administrative agency, the Interstate Commerce Commission. The federal effort to regulate railroads floundered on their hybrid public–private nature. Some policy-makers saw railroads as private enterprises, an industry in which competition should be promoted; others regarded them as public utilities, natural monopolies that needed government ownership or regulation. Railroads competed and often lost money on highvolume, long-distance or “long-haul” lines, but had monopoly power, and recouped those losses on low-volume, short-distance or “short-haul” lines. Competition in the long-haul market thus depended on discrimination in the short-haul market. Before the Supreme Court stopped them in 1886, the states attempted to prohibit short-haul discrimination, and thus force the railroads to raise rates for out-of-state shippers.54 These and similar state acts threatened to “balkanize” the national market.55 Others proposed to allow or require 51 52 53 54

55

Craig v. Missouri, 29 U.S. 410 (1830) and Briscoe v. Bank of Kentucky, 36 U.S. 257 (1837). Hepburn v. Griswold, 75 U.S. 603 (1869) and The Legal Tender Cases, 79 U.S. 457 (1870). Gelpke v. Dubuque, 68 U.S. 175 (1864). Ely, Railroads and American Law, 29, 58, 96. The case was Wabash, St. Louis & Pacific Ry. Co. v. Illinois, 118 U.S. 557 (1886). Bensel, Political Economy of American Industrialization, 321; Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: W. W. Norton, 1991), 391–93.

The Old Regime: 1870–1900

18

railroads to collaborate (“pooling”) to raise rates on the long hauls to reduce the need for discrimination on the short-hauls. Instead, Congressmen hostile to railroads, led by Representative John Reagan of Texas, tried to prohibit both pooling and discrimination. The Senate preferred to allow discrimination, ignore pooling, and create a commission to oversee the industry. Negotiations produced the Interstate Commerce Act of 1887, “pure compromise in the worst American political tradition.”56 It mandated that all railroad rates “shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful.”57 The Act prohibited pooling. It also prohibited discrimination only in cases of “substantially similar circumstances and conditions.” And it left the interpretation of the Act to an independent commission.58 Faced with a difficult policy choice, Congress gave up. In a “legislative deferral,” the Interstate Commerce Act left the matter to the judicial and administrative branches.59 Many congressmen objected to it for unconstitutionally delegating legislative power to the commission, and by combining legislative, executive, and judicial powers in that commission. Its conflicting mandates made the commission too weak rather than too strong. The federal government might have chosen deliberate cartelization, the course that it ultimately would adopt in the twentieth century, but instead imposed irreconcilable missions. The commission recognized the public’s need for common carriers and public highways, but also understood that the incentives of profits and dividends were needed to maintain capital investment in the transportation network. This makeshift policy was perhaps the best that could be obtained, and did preserve the system. Gilded Age railroad regulation compared favorably with that in the coming, Progressive era.60

land grants and education The Civil War Republicans also used land grants in innovative ways – to promote Western settlement and education. The Homestead Act of 1862 gave up to a quarter section (160 acres) of land at no cost to any settler who lived on it for five years and improved it.61 One would have expected the populist–progressive 56

57 58

59

60

61

Albro Martin, “The Troubled Subject of Railroad Regulation in the Gilded Age – A Reappraisal,” Journal of American History 61 (1974), 361. 24 Stat. 379 (1887), sec. 1. Martin, “Troubled Subject of Railroad Regulation,” 362; Lewis H. Haney, A Congressional History of Railways in the United States, 2 vols. (New York: Augustus M. Kelley, 1908–10), II: 302. George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge: Cambridge University Press, 2002). Haney, Congressional History, II: 308, 312; Martin, “Troubled Subject,” 370; Edward C. Kirkland, Industry Comes of Age: Business, Labor, and Public Policy, 1860–97 (Chicago: Quadrangle, 1961), 134; Albro Martin, Enterprise Denied: Origins of the Decline of American Railroads, 1897–1917 (New York: Columbia University Press, 1971). 12 Stat. L. 392 (1862).

The Post-War Constitution

19

historians to hail this act as the alter ego of the railroad land grants. Instead, agricultural historian Paul Gates depicted the Act as a chimera, little more than a fig leaf for further corporate depredations, producing “speculation and land monopolization.”62 Federal land policy was “one of the most shameful chapters of American history.”63 But this harsh agrarian judgment had softened by the 1960s. Gates then noted that the abuses of the Homestead Act had led historians to underestimate its positive impact, and “I must confess that I may have contributed to this misunderstanding.”64 Others pointed out that there was no clearcut distinction between “settler” and “speculator,” and that the idea of a “land monopoly” was simply absurd.65 Gates now concluded that “their noble purpose and the great part they played in enabling nearly a million and a half people to acquire farm land, much of which developed into farm homes, far outweigh the misuse to which they were put.”66 Public land also promoted the “internal improvement” of education. Federal education policy had a checkered history before the Civil War, since schooling was considered a state and local matter, belonging particularly to families and churches. The first instance of national support for education may have been “Baron” Steuben’s prescription of mathematics instruction for the Continental Army in his 1779 regulations.67 The Land Ordinance of 1785 set aside one of sixteen square townships “for the maintenance of public schools within the said township.” The Northwest Ordinance declared, as an “article of compact between the original states and the people and states in the said territory” that would “forever remain unalterable, unless by common consent,” that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” At the Constitutional Convention of 1787, the delegates debated but did not adopt language to permit Congress to establish a national university. As in the case of a national bank, some delegates saw no need for such language because the

62

63

64

65

66 67

Paul Gates, “The Homestead Law in an Incongruous Land System,” American Historical Review 41 (1936), 662; Roy M. Robbins, “The Public Domain in the Era of Exploitation, 1862–1901,” Agricultural History 13 (1939), 97–108. Harold H. Dunham, Government Handout: A Study of the Administration of the Public Lands, 1875–91 (New York: Da Capo, 1970 [1941]), 3; Leonard D. White, The Republican Era: A Study in Administrative History (New York: Free Press, 1958), 197. Paul W. Gates, “The Homestead Act: Free Land Policy in Operation, 1862–1935,” in Land Use Policy and Problems in the United States, ed. Howard W. Ottoson (Lincoln: University of Nebraska Press, 1963), 32. See also Paul W. Gates, History of Public Land Law Development (Holmes Beach, FL: Gaunt, 1987), 398. Gates, “The Homestead Act,” 35–36; Robert Higgs, The Transformation of the American Economy, 1865–1914: An Essay in Interpretation (New York: John Wiley, 1971), 90–92; Harold M. Hyman, American Singularity: The 1787 Northwest Ordinance, the 1862 Homestead and Morrill Acts, and the 1944 G.I. Bill (Athens: University of Georgia Press, 1986), 22. Gates, “The Homestead Act,” 43. George N. Rainsford, Congress and Higher Education in the Nineteenth Century (Knoxville: University of Tennessee Press, 1972), 15.

20

The Old Regime: 1870–1900

Constitution implied such power, particularly in the clause giving Congress plenary power in the capital district.68 The most potentially far-reaching provision of the Constitution was Article IV, section 4, directing the United States to “guarantee to every state in this union a republican form of government.” If, as the Northwest Ordinance declared, education was essential to good government, the federal government might promote it to guarantee republican government in the states. As one historian notes, “People who discussed the purposes of education in the Congress and in the state constitutional conventions seemed to regard the common school as the sine qua non of republicanism, in effect a fourth branch of government.”69 Even strict-constructionist state-sovereignty advocates such as John Randolph of Virginia endorsed the promotion of education in the territories under the “prudent proprietor” theory.70 Nevertheless, Congress did not go beyond the land-reservation policy as a means of promoting education. Justin Morrill of Vermont devoted himself to the promotion of access to higher education, particularly in the mechanical and agricultural arts. If Congress could use public lands to develop Western railroads, he reasoned, it could also use them to fund higher education. In 1857 he began to propose bills distributing federal land to the states, the sale of which would form a fund for “the endowment, support, and maintenance of at least one college where the leading object shall be, without excluding other scientific and classical studies and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts . . . in order to promote the liberal and practical education of the industrial classes of the several pursuits and professions of life.”71 Virginia Senator James Mason denounced the bill as “an unconstitutional robbing of the Treasury for the purpose of bribing the states.” He particularly feared that Congress might “fasten upon the southern states that peculiar system of free schools in the New England states” that would “destroy that peculiar character” of Southern society.72 President Buchanan vetoed such a bill in 1859, denying that Congress could “dispose” of land by giving it away to promote ends that were beyond its enumerated powers.73 The Act had the political advantage of providing benefits to the older states, many of which had begun to resent that the public lands had only benefited the new, Western states. The Northwest Ordinance and the Morrill Acts made the United States the first county to devote its national resources to the promotion of higher education.74 68 69

70 71 72 73 74

Ibid., 17. David Tyack et al., Law and the Shaping of Public Education, 1785–1954 (Madison: University of Wisconsin Press, 1987), 14, 20. Rainsford, Congress and Higher Education, 41. 12 Stat. 503 (1862). CG (1 Feb. 1859), 718. “Veto Message,” 24 Feb. 1859, M&PP VII: 3074. Coy F. Cross, II, Justin S. Morrill: Father of the Land-Grant Colleges (East Lansing: Michigan State University Press, 1999), 79–80; Tyack, Law and the Shaping of Public Education, 35; Hyman, American Singularity, 36.

The Post-War Constitution

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But the federal government went no further than the Morrill land-grant college act to promote education in the nineteenth century. Soon after the Civil War, traditional fears of excessive centralization in education arose. The most ambitious of the Radical Republicans did envision that public schools, like the army, would, in Prussian fashion, be a nationalizing, homogenizing institution.75 In 1865, Ignatius Donnelly of Minnesota introduced a bill to create a National Bureau of Education, “whose duty it shall be to enforce education, without regard to race or color, upon the population of all such states as shall fall below a standard to be established by Congress.” But Congress went no further than to create a department of education to compile statistics. Two years after its creation, it was subordinated as a bureau in the Interior Department, and had its budget cut. The Secretary of the Interior himself called for Congress to repeal all national legislation concerning education. George F. Hoar of Massachusetts attempted in 1870 to establish a national system of common-school education – probably to compel the Southern states to provide education for the former slaves – but this also failed.76 Morrill led the effort to scotch these initiatives, which he regarded as encroaching on his own land-grant program.77 Others were particularly interested in combating Roman Catholic influence in schools. Republican Party platforms beginning in 1876 called for a constitutional amendment to prohibit public assistance to sectarian institutions.78 Morrill ended up disappointed at the results of the 1862 land-grant act, as poor land-sale revenues did not provide an adequate fund for the new colleges. He spent the rest of his career attempting to augment the original land-grant act. The 1862 Act has been described as “a masterpiece of nondirective federal aid,” demonstrating that “federal assistance does not necessarily establish federal control.”79 This began to change in the late nineteenth century. The Hatch Act of 1887 established a system of annual payments to the states rather than lumpsum grants, enabling the federal government to exercise greater control over the system. The “Second Morrill Act” of 1890, based upon the revenue from land sales rather than grants of land itself, also included greater supervision of the states.80 Gradually, Congress began to substitute cash grants for land grants to the states, though it was not until the twentieth century that the method became 75

76

77 78 79 80

Eldon L. Johnson, “Misconceptions About the Early Land-Grant Colleges,” Journal of Higher Education 52 (1981), 347; McAfee, “Reconstruction Revisited,” 136. Rainsford, Congress and Higher Education, 102, 106; Darrell Hevenor Smith, The Bureau of Education: Its History, Activity, and Organization (Baltimore: Johns Hopkins University Press, 1923), 10; McAfee, “Reconstruction Revisited,” 139. McAfee, “Reconstruction Revisited,” 141. NPP (1876), 54. Johnson, “Misconceptions,” 345; Rainsford, Congress and Higher Education, 133. Rainsford, Congress and Higher Education, 106, 121; Edward Wiest, The Butter Industry in the United States: An Economic Study of Butter and Margarine (New York: AMS Press, 1968 [1916]), 105.

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The Old Regime: 1870–1900

widespread.81 The federal government no longer considered itself a temporary trustee of the public land, which should be turned over to private owners as soon as possible. Instead, it used the public domain as a means to extend federal influence.82 The land-grant method of promoting internal improvements was undoubtedly the most significant departure from antebellum limitations on federal power, and from Madisonian standards of constitutionalism. Congress could accomplish many ends through land grants that it could not have otherwise reached. One might say that the land-grant power was the nineteenth-century equivalent to the interstate-commerce and general-welfare powers of the postNew Deal period, a virtually limitless source of federal power. As the Supreme Court put it in 1866, “That Congress has the entire control of the public lands, can dispose of them for money, or donate them to individuals or classes of persons, cannot be questioned.”83 Nevertheless, this power remained temporary and limited, if only because the source of federal promotion (land) was finite. More impressive as a constitutional innovation was the establishment of the Department of Agriculture in 1862. Though some Congressmen objected that the promotion of agriculture was beyond the legislature’s enumerated powers, it was enacted with little discussion.84 Agriculture developed into the first “clientoriented department,” and became a cabinet office in 1889. As Leonard White notes, “This culminated a movement that in its early days had been resisted as a dangerous piece of class legislation, opening the door to demands of other economic groups for departments protective of their interests.” President Cleveland’s Agriculture Secretary, J. Sterling Morton, shared these concerns, and waged a campaign against federal seed distribution. In 1895 he rejected all seed bids, having concluded that Congress had no constitutional power to authorize the program. The legislature quickly ordered him to do so, and stopped this early effort of administrative impoundment. In the late nineteenth century, the USDA was a small, legislatively dominated, bottom-up “rural Santa Claus.” Only in the twentieth century did it develop into an executive-administrative, top-down harbinger of the centralized bureaucratic state.85

81

82

83 84

85

Charles Warren, Congress as Santa Claus, or, National Donations and the General Welfare Clause (Charlottesville: University of Virginia Press, 1932), 94. Thomas G. West, “The Constitutionalism of the Founders Versus Modern Liberalism,” Nexus 6 (2001), 91. Witherspoon v. Duncan, 71 U.S. 210 (1866), 219. David P. Currie, “The Civil War Congress,” University of Chicago Law Review 73 (2006), 1143–44. White, The Republican Era, 234, 242; Elizabeth Sanders, Roots of Reform; Farmers, Workers, and the American State, 1877–1917 (Chicago: University of Chicago Press, 1999), 391–94.

2 The Judiciary and Private Rights

distribution and subsidy Republican policy-making abated after 1875, when the party lost its fourteenyear control of Congress and the presidency. For the next two decades, with only brief exceptions (1889–91 for the Republicans and 1893–95 for the Democrats), the parties shared federal political power. This enhanced the power of the federal judiciary, which was dominated by Republicans. The only Democratic president in those years, Grover Cleveland, tended to appoint judges with an orientation similar to the Republicans. This had led historians in the populist–progressive– New Deal tradition to claim that the judicial branch and legal system promoted the class interests of big business. Republican policy on the tariff, finance, and railroads contributed the more visible, public-law part of their program of class rule, they argued. Less noticed was the Republican judiciary’s use of such private-law doctrines as torts and contracts to buttress this system. The federal judiciary’s private-law doctrine occasionally provoked political contention in the Gilded Age and progressive era, but only became a subject for legal historians later in the twentieth century.1 It flowed from the turn of legal historians from “internal” to “external” analysis of the law’s development. The common-law tradition had explained the development of law almost exclusively from legal sources – precedent cases above all; also statutes and official commentary. In the middle of the twentieth century, following the insights of sociological jurisprudence, legal realism, pragmatism, and other progressive legal theories, J. Willard Hurst began to interpret legal history in light of external political, social, and economic factors.2 Hurst explained that – far from adhering to laissez-faire – nineteenth-century Americans used the law and judges changed legal principles in order to facilitate economic development.3 Old common-law 1

2

3

The earliest example may be Charles O. Gregory, “Trespass to Negligence to Absolute Liability,” Virginia Law Review 37 (1951), 368. Robert W. Gordon, “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975), 12, 28, 45. Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956).

23

24

The Old Regime: 1870–1900

rules had reflected the values of a static, agrarian society, protecting the “quiet enjoyment” of land especially. Nineteenth-century judges modified these rules to permit more dynamic, entrepreneurial, commercial, and industrial development. While Hurst emphasized the fact that these alterations enjoyed popular support and reflected a democratic consensus, a later generation of historians, influenced by more critical and New Left ideology, depicted this development in more nefarious terms.4 In this view, judges served the dominant class and “externalized” or imposed the costs of industrial progress on its victims.5 But the common law–subsidy interpretation has been whittled away to almost nothing. One of the salient examples of the theory was the shift from the strict liability to negligence in tort cases. Strict liability made it easier for injured parties (small farmers, employees, and passengers, for example) to recover damages from tortfeasors (railroad companies whose machines set fire to crops, mangled brakemen, and killed children). To encourage railroad investment, nineteenthcentury judges decided that damages would only be awarded if “fault” or “negligence” could be shown. The most egregious of these doctrines was “contributory negligence,” which prevented recovery if a plaintiff could be shown to have contributed in the least bit to the injury. However, it turns out that the old common law was not really strict liability, but was rather “ambivalent and confused.”6 When it came to workplace accidents, contributory negligence represented an expansion of plaintiff rights.7 Moreover, American judges fashioned a host of exceptions to expand it still further, often dealt sternly with irresponsible corporations, and showed considerable concern for their victims.8 They certainly respected property rights, but recognized the costs of industrial enterprise, and adjusted common-law rules to increase victim compensation when they thought it necessary.9

4

5

6

7

8

9

Wythe Holt, “Morton Horwitz and the Transformation of American Legal History,” William and Mary Law Review 23 (1982), 665; James T. Kloppenberg, “The Theory and Practice of American Legal History,” Harvard Law Review 106 (1993), 1339; Herman Belz, “Constitutional and Legal History in the 1980s: Reflections on American Constitutionalism,” in A Living Constitution or Fundamental Law: American Constitutionalism in Historical Perspective (Lanham, MD: Rowman & Littlefield, 1998), 169. Morton Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1977), 70, 235; Harry Scheiber, “Federalism and the American Economic Order, 1789–1910,” Law and Society Review 10 (1975), 65; Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, 1973), 14; Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origin and Development, 7th ed. (New York: Norton, 1991), 239. Gary Schwartz, “Tort Law and the Economy in Nineteenth Century America: A Reinterpretation,” Yale Law Journal 90 (1981), 1727. Richard A. Epstein, “The Historical Origins and Economic Structure of Workers’ Compensation Law,” Georgia Law Review 16 (1982), 777–79. Robert L. Rabin, “The Historical Development of the Fault Principle: A Reinterpretation,” Georgia Law Review 15 (1981), 942; Schwartz, “Tort Law,” 1720. Rabin, “Historical Development,” 947, 960.

The Judiciary and Private Rights

25

A rival interpretation has tried to defend nineteenth-century common-law rules as maximizing economic efficiency.10 This view, like the subsidy thesis, assumes that judges applied principally economic values, and depicts their jurisprudence as fundamentally instrumentalist or utilitarian. This interpretation, while supported by more evidence than the subsidy theory, still omits important features of nineteenth-century law, ones that have been emphasized by Peter Karsten. Nineteenth-century judges in fact changed legal rules only very reluctantly; their intellectual tradition made them deferential to precedent. Far from being instrumentalists or pragmatists, they had a traditional view of the common law as the instantiation of the natural law, and remained profoundly “formalistic.” They did not think that they were “making” law, but that they were “discovering” it. And when they did change the law, they usually did so in order to aid the weak and the poor, rather than to subsidize entrepreneurs.11 Their values still derived from the Christian and classical sources of the Founding generation. Karsten notes that nearly all of their innovations “can fairly be described as efforts to apply democratic/republican values and JudeoChristian ethics to legal problems addressed inadequately by existing rules.”12 Economic determinism – whether by the Marxian left or the libertarian right – has prevented historians from seeing the moral content of nineteenth-century law. “If we listen to what these jurists said in defense of their positions, we can hear them arguing earnestly over basic principles of law and justice,” Karsten argues. “Jurists seem ultimately to have been more concerned with inspiring what they thought of as morally and socially responsible behavior than economic efficiency, and these two ends were often not the same.” Late nineteenthcentury judges were engaged in an earnest quest for justice.13 In the populist–progressive–New Deal view, while state courts were harsh, federal courts were harsher still. The federal judiciary provided a forum to which corporations could appeal over the heads of state judges. Progressives also alleged that the federal courts had usurped this jurisdiction unconstitutionally. The Constitution states that “the judicial power shall extend . . . to controversies . . . between citizens of different states.” This power, known as diverse-citizenship or “diversity jurisdiction,” meant to address one of the

10 11

12

13

Richard A. Posner, “A Theory of Negligence,” Journal of Legal Studies 1 (1972), 29. Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1997), 299, 35, 3; Stanton Wheeler et al., “Do the ‘Haves’ Come Out Ahead? Winning and Losing in State Supreme Courts, 1870–1970,” Law and Society Review 21 (1987), 442–43. Karsten, Heart versus Head, 6. For a similar view on the education of late nineteenth-century federal judges, see Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860–1910 (De Kalb: Northern Illinois University Press, 2004) and Herbert Hovenkamp, “The Political Economy of Substantive Due Process,” Stanford Law Review 40 (1988), 420. Karsten, Head versus Heart, 224, 299; Karsten, “Explaining the Fight over the Attractive Nuisance Doctrine: A Kinder, Gentler Instrumentalism in the ‘Age of Formalism,’” Law and History Review 10 (1992), 79.

26

The Old Regime: 1870–1900

principal problems experienced under the Articles of Confederation, discriminatory treatment by states against out-of-state (“foreign”) citizens. Madison noted, in his analysis of the “Vices of the Political System” under the Articles of Confederation, that paper money and other state economic regulations “may likewise be deemed aggressions on the rights of other states . . . This remark may be extended to foreign nations,” and sought in the new Constitution “to prevent those frauds on the citizens of other states, and the subjects of foreign powers, which might disturb the tranquility at home, or involve it in foreign contests.”14 As Congress could regulate interstate commerce to establish a common market, the federal courts could provide a neutral forum to settle disputes in that market. Some anti-federalists in the state-ratifying conventions focused on Article III, and on diversity jurisdiction in particular. Seven state-ratifying conventions proposed altering the diversity provision.15 In Virginia, for example, Patrick Henry envisaged that by “the extensive jurisdiction of these paramount courts, the state courts must soon be annihilated.” George Mason continued, “Suppose a man has my bond for £100 and a great part of it has been paid, and in order fraudulently to oppress me, he assigns it to a gentleman in Carolina or Maryland.” His new foreign creditors could harass, fatigue, and ruin him by bringing actions in distant federal courts. James Madison tried to quell these fears by arguing that the power was not very significant, “But I sincerely believe this provision will be rather salutary, than otherwise,” especially when “strong prejudice may arise in some states, against the citizens of others, who may have claims against them.” Such local discrimination had already weakened the confederation. John Marshall agreed, suggesting that a limited kind of federal common law might arise. Diversity jurisdiction, he said, “may be necessary with respect to the laws and regulations of commerce, which Congress may make. It may be necessary in cases of debt and some other controversies. In claims for land it is not necessary, but it is not dangerous.” He added that, in contract cases, for example, decisions would be made according to “the laws of the state where the contract was made.”16 Though several proposed amendments addressed fears about judicial power, they did not affect diversity jurisdiction. 14

15

16

“Vices of the Political System of the United States,” Apr. 1787, in The Papers of James Madison, ed. William T. Hutchinson et al., 10 vols. (Chicago: University of Chicago Press, 1962–77), IX: 349–50; David C. Hendrickson, Peace Pact: The Lost World of the American Founding (Lawrence: University Press of Kansas, 2003), 214. Charles Warren, “New Light on the History of the Federal Judiciary Act of 1789,” Harvard Law Review 37 (1923), 55, 81; Jackson Turner Main, The Antifederalists: Critics of the Constitution, 1781–88 (Chapel Hill: University of North Carolina Press, 1961), 155–58; Henry J. Friendly, “The Historic Basis of Diversity Jurisdiction,” Harvard Law Review 41 (1928), 487. Debate in Virginia Convention, 20 Jun. 1788, in The Documentary History of the Ratification of the Constitution, ed. John P. Kaminski et al., 22 vols. to date (Madison: State Historical Society of Wisconsin, 1993–2008), X: 1422, 1429, 1414, 1434.

The Judiciary and Private Rights

27

swift and diversity When the first Congress fleshed out the federal judicial power in the Judiciary Act of 1789, it did not establish the rules that federal courts should apply in diversity suits. The Act provided, in section 34, “that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.”17 This language was remarkably unhelpful. What were the “laws of the several states” and what were the “cases where they apply”?18 In its first half-century, the Court usually applied state law, but also began to use general principles.19 Section 34 also raised the larger question of whether a federal common law existed. This question became especially controversial during the debate over the Sedition Act of 1798. The Federalists claimed a Congressional power to punish all common-law crimes. Jeffersonian opponents of the act responded that such power would mean that Congress could exceed the specific legislative powers enumerated in Article I, section 8, and would establish an unlimited government. As Jefferson put it in the first Kentucky Resolution, the Constitution empowered Congress to punish treason, counterfeiting, “piracies and felonies committed on the high seas, and offenses against the law of nations, and no other crimes whatever.”20 Federal prosecutions for seditious libel continued even after the Jeffersonians came to power and the Sedition Act had expired, until the Supreme Court declared in 1812 that there was no federal common law of crimes.21 The Court repudiated a federal civil common law in 1834. Ironically enough, the case arose out of a copyright claim by former Supreme Court reporter Henry Wheaton, in the last important decision of the Marshall Court. “It is clear that there can be no common law of the United States,” the Court held. In a Union “composed of twenty-four sovereign and independent states, each of which may have its local usages, customs, and common law” when common-law disputes arose, “we look to the state in which the controversy originated.” Since “the right of an author to a perpetual copyright does not exist by the common law of Pennsylvania,” Wheaton lost.22 17 18

19

20

21

22

1 Stat. 73 (1789). Stewart Jay, “Origins of Federal Common Law: Part Two,” University of Pennsylvania Law Review 133 (1985) 1263; Wilfred J. Ritz, Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence, ed. Wythe Holt and L. H. LaRue (Norman: University of Oklahoma Press, 1990), 146. Tony A. Freyer, Forums of Order: The Federal Courts and Business in American History (Little Rock: University of Arkansas Press, 1979), 46; Freyer, Harmony and Dissonance: The Swift and Erie Cases in American Federalism (New York: New York University Press, 1981), 29–31; Scheiber, “Federalism and the American Economic Order,” 79. “The Kentucky Resolutions,” 16 Nov. 1798, in Major Problems in American Constitutional History, ed. Kermit Hall, 2 vols. (Lexington, MA: D. C. Heath, 1992), I: 234. U.S. v. Hudson and Goodwin, 11 U.S. 32 (1812); Stewart Jay, “Origins of Federal Common Law: Part One,” University of Pennsylvania Law Review 133 (1985), 1012–19. Wheaton v. Peters, 33 U.S. 591 (1834), 591–92.

The Old Regime: 1870–1900

28

Joseph Story, the ardent nationalist who carried the Marshall legacy into the Jacksonian era, labored for years to resurrect a federal commercial common law. He prevailed in Swift v. Tyson, a case concerning negotiable bills of exchange – bank checks, in effect. Swift lent money to Norton, who then sold land that he did not own to Tyson. Tyson paid Norton with a note, which Norton then signed over to Swift to repay his loan. Swift then tried to collect on Tyson’s note. Tyson, having been cheated, refused to pay. Story observed that New York decisions were ambivalent as to whether “a bona fide holder, for a preexisting debt, of a negotiable instrument is not affected by any equities between the antecedent parties.” But Story did not consider the Court bound by New York’s decisions, for they were not “laws” in the sense of section 34. “In the ordinary use of language, it will hardly be contended that the decisions of courts constitute laws,” Story wrote. “They are, at most, only evidence of what the laws are, and are not, of themselves, laws.” The federal courts in diversity cases would regard only explicit statutes and “long established local customs having the force of laws,” and only with regard to matters “strictly local . . . real estate and other maters immovable and intraterritorial in their nature or character.”23 Story went on to apply the principles of natural law, or the international “law merchant.” The law governing such questions as contracts and bills of exchange “may truly be declared in the languages of Cicero, adopted by Lord Mansfield . . . to be in a great measure not the law of a single country only, but of the commercial world.” And “It is for the benefit and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper.” To sustain complex, distant, multiparty transactions only when every link in the chain of negotiation was untainted “would strike a fatal blow at all discounts of negotiable securities.”24 In a growing country with a limited money supply, commerce would benefit by making such bills as much like cash as possible.

the extension of swift Over time, the Court extended Swift to cover virtually all commercial activity that was not clearly local in nature. The federal courts thus supplied a forum for out-ofstate defendants that was less likely to be responsive to local prejudices. For, despite the ever greater integration of the American economy, state laws remained contradictory and often discriminatory, making it difficult for corporations to operate. The doctrine facilitated commerce, but critics noted that it also gave more latitude to dishonest parties such as Norton. But Swift was unanimous, and attracted little notice, and Congress only acted to expand the diversity jurisdiction of the federal courts later in the nineteenth century. Whether or not the Court correctly interpreted the cryptic section 34, it did protect the 23

24

Swift v. Tyson, 41 U.S. 1 (1842), 18. Story’s opinion suggested an equation of “the laws of the states” and the natural law. State statutes and state court decisions were alike expressions of human understanding and application of the natural law; they were not the natural law itself. Ibid., 19.

The Judiciary and Private Rights

29

national market against local prejudices, which vindicated the spirit of the Constitution.25 Even critics of the system admitted that states threatened to “balkanize” the national economy, and diversity jurisdiction helped to prevent this.26 One should note that states were free to – and many did – maintain their own common-law rules and apply them to intrastate or non-diversity suits. New York, for example, did not follow Swift on negotiable bills of exchange. Similarly, the Marshall Court (albeit over Marshall’s dissent), had held that a state insolvency law could permit debtors to pay less than their full debt in future contracts, but could not do so with regard to foreign creditors.27 When several state courts decided that municipalities did not have to raise taxes in order to pay for railroad-promotion bonds, the U.S. Supreme Court overturned these decisions as to foreign bond-holders, but not local bond-holders.28 In short, states could allow their own citizens to repudiate debts to other of their own citizens, but not to citizens of different states, which fit the Constitution’s purpose of containing state factionalism.29 Such suits were prohibited by section 11 of the Judiciary Act of 1789, but permitted in an 1875 revision of the Act. As the Swift doctrine grew after the Civil War, and as the American economy developed more large, interstate corporations, populists charged that the federal common law did not protect foreign citizens from local prejudices, but instead gave these foreign citizens unfair advantage over local citizens.30 Labor union leaders especially accused the federal courts of a bias in favor of foreign corporations, and historians have had a difficult time evaluating the truth of this impression. This version of the “subsidy thesis,” claiming that federal jurisdiction favored large corporations and imposed “the risks of business on those least 25

26

27 28

29

30

Tony A. Freyer, Forums of Order: The Federal Courts and Business in American History (Little Rock: University of Arkansas Press, 1979), xix, 102; William P. LaPiana, “Swift v. Tyson and the Brooding Omnipresence in the Sky: An Investigation of the Idea of Law in Antebellum America,” Suffolk University Law Review 20 (1986), 795. For a compelling argument that none of the major interpreters of section 34 has understood it properly, see Ritz, Rewriting the History of the Judiciary Act of 1789. Richard F. Bensel, The Political Economy of American Industrialization, 1877–1900 (New York: Cambridge University Press, 2000), 321. Ogden v. Saunders, 25 U.S. 213 (1827). Gelpke v. Dubuque, 68 U.S. 175 (1864); Taylor v. Ypsilanti, 105 U.S. 60 (1881); Pine Grove v. Talcott, 86 U.S. 666 (1873); Mitchell Wendell, Relations Between the Federal and State Courts (New York: Columbia University Press, 1949), 159. Michael Greve, The Upside-Down Constitution (Cambridge, MA: Harvard University Press, 2012), 59. Warren, “New Light,” 85. Despite the oft-repeated progressive claim that the Supreme Court turned corporations into persons in 1886, “Corporations had enjoyed standing to sue under federal diversity jurisdiction since the 1840s, and the Court had been hearing cases involving corporations under the Fourteenth Amendment for several years.” Kelly, Harbison, and Belz, The American Constitution, 394. Charles and Mary Beard made this charge in The Rise of American Civilization, 2 vols. (New York: Macmillan, 1927), II: 113. It was debunked by Howard Jay Graham, “The ‘Conspiracy Theory’ of the Fourteenth Amendment,” Yale Law Journal 47 (1938), 371–403 and 48 (1938), 171–94. It is resurrected in Jack Beatty, The Age of Betrayal: The Triumph of Money in America, 1865–1900 (New York: Knopf, 2007).

30

The Old Regime: 1870–1900

able to bear them” seems rather exaggerated. The state-court subsidy thesis is especially weak. State courts were sometimes more favorable to business interests than were federal courts, and federal courts sometimes favored plaintiffs.31 Judges made many similar exceptions to the “unholy trinity” of defenses against liability in tort – the fellow-servant, assumption-of-risk, and contributory negligence rules. In 1863, for example, the Supreme Court used diversity jurisdiction to adopt a negligence rule more favorable to plaintiffs than that of the state of Illinois.32 Ten years later, the Court mitigated the “fellow servant” doctrine, by which employers escaped liability for injuries to their employees if they could show that some other employee was responsible for the harm.33 In the 1884 Ross case, the Court elaborated this “vice-principal” concept, which very few states had adopted. This opinion was written by Justice Stephen Field, usually regarded as the most ardently laissez-faire justice of the period, and one biased in favor of railroads in particular.34 A decade later, though, in the case of B&O Railroad v. Baugh, Field’s equally laissez-faire nephew, David J. Brewer, overturned Ross and imposed the fellow-servant rule on the more plaintiff-friendly state of Ohio.35 Field now repudiated the whole notion of a federal common law, and praised the vice-principal exception as “in accordance with justice and humanity to the servants of a corporation.”36 Chief Justice Melville W. Fuller joined in Field’s dissent. Fuller is also characterized as among the most probusiness justices of the period – President Theodore Roosevelt accused him of exhibiting “reactionary folly.”37 In fact, Fuller voted for the plaintiff and against the railroad in every case that came before him.38 The Court also modified the

31

32

33 34

35

36 37 38

Edward A. Purcell, Jr., Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (New York: Oxford University Press, 1992), 26, 58, 86, 63; Aviam Soifer, “The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888–1921,” Law and History Review 5 (1987), 254. Chicago v. Robbins, 67 U.S. 418 (1863). This was a particularly egregious case. The city of Chicago had to pay damages to a pedestrian injured by the negligence of Robbins, a New York property owner, and sued to recover the damages from him. The U.S. Supreme Court noted that “A case of grosser negligence could hardly be imagined . . . If the owner of fixed property is not responsible in such a case as this, it would be difficult ever to charge him with responsibility.” Furthermore, the lower court’s instruction “was calculated to confuse and mislead the jury. . .. A broad rule was laid down when the very case itself furnished an exception.” Ibid., 427, 429. Union Pacific Ry. v. Fort, 84 U.S. 553 (1873). Chicago, Milwaukee, & St. Paul Ry. v. Ross, 112 U.S. 377 (1884); Charles Fairman, Reconstruction and Reunion, 1864–88, Part Two (New York: Macmillan, 1987), 593; Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997), 226. Baltimore & Ohio R.R. v. Baugh, 149 U.S. 368 (1893); Michael J. Brodhead, David J. Brewer: The Life of a Supreme Court Justice, 1837–1910 (Carbondale: University of Southern Illinois Press, 1994), 109. Baltimore & Ohio R.R. v. Baugh, 401, 411. Theodore Roosevelt to Henry Cabot Lodge, Jr., 10 Jul. 1902, LTR III: 289. Robert P. Reeder, “Chief Justice Fuller,” University of Pennsylvania Law Review and Law Register 59 (1910), 11. See also Mary Cornelia Porter, “That Commerce Shall be Free: A New Look at the Old Laissez-Faire Court,” Supreme Court Review (1976), 142.

The Judiciary and Private Rights

31

negligence doctrine with regard to what was known as an “attractive nuisance.” When a group of children were amusing themselves on a railroad turntable, one of the children crushed his foot in the machinery, and a court awarded $7,500 in damages. The railroad appealed, claiming that it was not responsible, and that the children were trespassing. The Supreme Court upheld the judgment.39 The Court repeatedly affirmed this Stout decision, until 1922, when progressive icon Oliver Wendell Holmes overturned what the dissenters called the “humane doctrine” in Stout, and imposed “what has been designated as a ‘hard doctrine’ – the ‘Draconian doctrine.’”40 Many would agree that decisions such as Baugh were harsh and biased, and only tenuously related to the national-market, general/local ethos of the Constitution and Swift. One state’s tort rule could not have had much of an impact on interstate commerce, and it evinced no motive to favor local over foreign business. Now, almost any matter of law could be considered part of the “general commercial law.” But Baugh was an exception that critics claimed to be the rule. The federal courts often adopted standards more friendly to plaintiffs than the states did. And what is one to make of such categories as libel law, in which the federal courts were more friendly to plaintiffs, but in a way that might compromise freedom of speech? And efforts in Congress by Southerners and Westerners to limit federal jurisdiction failed.41 The Court’s private-law decisions provoked much less of a public reaction than the troika of public-law decisions in 1895, which grew out of the depression of 1893.

39 40

41

Sioux City and Pacific Ry. v. Stout, 84 U.S. 657 (1873); Karsten, “Explaining the Fight.” United Zinc and Chemical Co. v. Britt, 258 U.S. 268 (1922), 274, 277–78; Oliver Wendell Holmes, Jr., to Sir Frederick Pollock, 29 Mar. 1922, in Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874–1932, ed. Mark DeWolfe Howe, 2 vols. (Cambridge, MA: Belknap, 1961), II: 92. Charles A. Heckman, “Uniform Commercial Law in the Nineteenth Century Federal Courts: The Decline and Abuse of the Swift Doctrine,” Emory Law Journal 27 (1978), 58–60; Greve, UpsideDown Constitution, 142, 150; Suzanna Sherry, “Wrong, Out of Step, and Pernicious: Erie as the Worst Decision of All Time,” Pepperdine Law Review 39 (2012), 138; Alfred H. Kelly, “Constitutional Liberty and the Law of Libel: A Historian’s View,” American Historical Review 74 (1968), 439; Tony A. Freyer, “The Federal Courts, Localism, and the National Economy, 1865–1900,” Business History Review 53 (1979), 343–63.

3 The Crisis of the 1890s

the labor problem The economic depression of 1893 produced significant labor upheaval, particularly in the national railway strike of 1894. Eugene V. Debs had formed an industrial union of railroad workers, the American Railway Union (ARU). The powerful, skilled, and established railway brotherhoods (engineers, conductors, firemen, and trainmen) remained outside of it, and the ARU was limited to men “born of white parents,” but otherwise it included the mass of railway workers. When the Pullman Palace Car Company cut the wages of its employees, the ARU began a sympathy strike, or “secondary boycott,” its members refusing to handle Pullman cars. When the railroad companies discharged ARU members engaged in this boycott and tried to carry on operations with replacements, a general railroad strike ensued, accompanied by violence and sabotage. Over the objections of pro-union Illinois Governor John P. Altgeld, the U.S. Attorney General, Richard Olney, sought an injunction in the U.S. District Court, which ordered an end to all efforts to interfere in the operations of the railroads by “threats, intimidation, force, and violence.” Debs and other ARU leaders violated the injunction, were convicted of contempt of court, and sentenced to jail terms of three to six months.1 The Debs case brought into high relief the difficult question of the status of labor unions in American society. It was the common argument of progressive historians, and remains the dominant view to this day, that American law severely disfavored organized labor. But this is quite far from the truth. In the nineteenth century, American courts extended the same privileges to labor organizations as they did to other voluntary associations. They had never treated 1

Susan E. Hirsch, “The Search for Unity among Railroad Workers: The Pullman Strike in Perspective,” in The Pullman Strike and the Crisis of the 1890s: Essays on Labor and Politics, ed. Richard Schneirov et al. (Urbana:University of Illinois Press, 1999). See also Herbert Hovenkamp, “Labor Conspiracies in American Law, 1880–1930,” Texas Law Review 66 (1988), 952; Gerald G. Eggert, “The Pullman Strike,” in Labor Conflict in the United States: An Encyclopedia, ed. Ronald Filippelli (New York: Garland, 1990), 425–28; Philip Taft, Organized Labor in American History (New York: Harper & Row, 1964), 149–55.

32

The Crisis of the 1890s

33

labor organizations per se as criminal conspiracies, but did hold unions accountable if they used unlawful means to attain their ends. The famous case of Commonwealth v. Hunt in 1842 simply reinforced this status. The American common law permitted unions to combine and use lawful means – but not force or fraud – to achieve their ends. Unions thus fit into the same liberal, “free labor” philosophy that triumphed in the anti-slavery crusade and the Civil War.2 Union advocates claimed that the formal equality of labor really masked a substantial inequality, because the economic power of employers overwhelmed that of workers. “Free labor” actually resulted in “wage slavery.” Legal trouble arose when unions exceeded their legal right to quit work, and attempted to prevent their employers from carrying on their business, principally by preventing other, non-union, workers from taking their places. Employers had every legal right to refuse to recognize unions; it was union refusal to respect this right that usually led to violence.3 The strike device deeply divided social reformers in the late nineteenth century. The leaders of the dominant labor federation of the Gilded Age, the Noble and Holy Order of the Knights of Labor, opposed it, though their members tended to favor it. If strikes were to be effective, then unions needed license to use coercive powers that would compensate for their lack of economic bargaining power. As Henry George told Pope Leo XIII in 1891, “Labor associations can do nothing to raise wages but by force. . . . Those who tell you of trades unions bent on raising wages by moral suasion alone are like those who would tell you of tigers who live on oranges.”4 The dispute concerned not the legitimacy of unions as ordinary voluntary associations, but the means by which unions attained their ends.5 To counter the coercive-strike tactic, courts in the late nineteenth century developed the labor injunction. Courts of equity issued injunctions in situations where the common-law courts did not provide a remedy. If someone faced immediate and irreparable harm, and could not prevent it through normal criminal or civil procedure, he could ask a judge (originally a “chancellor”) for a writ of injunction to prevent the harm. If faced with a strike, an employer could not sue a union, since unions were almost never incorporated; nor would suing individual union members do much good. The local law enforcement agents were often unwilling or unable to protect the employer against strikers.

2

3

4

5

Paul Moreno, “Organized Labor and American Law: From Freedom of Association to Compulsory Unionism,” Social Philosophy and Policy 25 (2008), 22–52; B. W. Poulson, “Criminal Conspiracy, Injunctions, and Damage Suits in Labor Law,” Journal of Legal History 7 (1986), 215. Hugh Davis Graham and Ted Robert Gurr, The History of Violence in America: A Report to the National Commission on the Causes and Prevention of Violence, rev. ed. (New York: Bantam, 1970), 281, 294. Henry George, The Condition of Labor: An Open Letter to Pope Leo XIII (New York: Lovell, 1891), 86. Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford, 1998), 108.

34

The Old Regime: 1870–1900

Chancellors could issue temporary restraining orders quickly, without hearing defendant testimony, and without jury consideration. Scholars repeatedly aver that courts enjoined even “peaceful picketing,” but rarely disclose that judges never enjoined picketing that began peacefully. In fact, violence, intimidation, or coercion was involved in every case in which a federal or state court issued an injunction.6 Even after picketing received Supreme Court protection as “free speech,” the Court allowed injunctions of picketing conducted in an atmosphere of violence.7 Admittedly, judges could define intimidation loosely, and employers might provoke violence in order to gain injunction or state intervention. But history displayed more than enough evidence of overt union lawlessness to support injunction-seekers. Moreover, injunctions were only as good as the agents who enforced them. They were often ignored, and failed to stop determined strikes.8 “If anything, the courts bent over backwards to protect the rights of unionists and in some states such as New York the courts granted the unions special privileges and immunities that were not available to other organizations,” one study concludes. In labor disputes, courts earnestly engaged in the pursuit of justice, as they did in diversity suits.9 Debs was a fairly easy case for the Supreme Court, a unanimous decision upholding the conviction. But it might be called an easy case that made bad law. That the strike obstructed commerce among the states, and that the federal government had the power to deliver the mail and maintain its postal and military roads was clear enough. But how was an injunction the proper response to the crisis? Justice Brewer rendered the decision in extremely broad terms; the most famous phrase from his opinion being, “The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstruction to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the nation, to compel obedience to

6

7

8

9

Sylvester Petro, “Injunctions and Labor Disputes: 1880–1932,” Wake Forest Law Review 14 (1978), 462. The one exception was the Michigan case of Clarage v. Luphringer, 202 Mich. 612 (1918). On this case, see Coreen Derifield, “Defining Peaceful Picketing: The Michigan Supreme Court and the Labor Injunction, 1900–40” (M.A. thesis, Western Michigan University, 2005), 80–96. Thornhill v. Alabama, 310 U.S. 88 (1940); Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 387 (1941). Petro, “Injunctions and Labor Disputes,” 471–72; Petro, “Unions and the Southern Courts: Part II – Violence and Injunctions in Southern Labor Disputes,” North Carolina Law Review 59 (1981), 896, 906; Duane McCracken, Strike Injunctions in the New South (Chapel Hill: University of North Carolina Press, 1931), 143; Benjamin J. Taylor and Fred Witney, U.S. Labor Relations Law: Historical Development (Englewood Cliffs, NJ: Prentice-Hall, 1992), 94; Derifield, “Defining Peaceful Picketing,” 8, 50, 65–73, 91; Barbara Steidle, “Conservative Progressives: A Study of the Attitudes and Role of Bar and Bench, 1905–12” (Ph.D. diss., Rutgers University, 1969), 139. Poulson, “Criminal Conspiracy, Injunctions, and Damage Suits in Labor Law,” 226; Petro, “Unions and the Southern Courts: Part II,” 901, 905.

The Crisis of the 1890s

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its laws.”10 Indeed, the conflict conjured up memories of the Civil War, with the government noting that the strikers engaged in sabotage against the rail lines similar to that which caused Lincoln to suspend the writ of habeas corpus in 1861.11 Debs’s counsel made the same analogy, arguing that “A mob cannot be suppressed by injunction.” Brewer agreed “that it would savor somewhat of the puerile and ridiculous to have read a writ of injunction to Lee’s army during the late Civil War,” but maintained that the strike was not an insurrection or revolution.12 Rather, he emphasized that the vast majority of strikers complied with the initial injunction, and he credited the government with using such legal, rather than military, means in the first instance. As Debs later told the U.S. Strike Commission, “It was not the soldiers that ended the strike; it was not the old brotherhoods that ended the strike; it was simply the United States courts that ended the strike.”13 Lesser means such as injunctions were included when the government had the authority to use greater means, Brewer noted. The leaders of the strike remained liable to ordinary criminal prosecution for their acts, and Debs did face charges under the recently enacted Sherman Antitrust Act, which imposed criminal penalties for conspiracies in restraint of trade.14 But Brewer based his decision on broader grounds, neither affirming nor denying that the Sherman Act applied to cases like these.15 Debs did not show that the Court was anti-labor, even if one conflates the terms “labor” and “union.” Indeed, one cannot even call it anti-strike, if “strike” meant the right to quit en masse.16 Its principal goal was to maintain the free flow of commerce among the states. As Brewer put it, “If a state, with its recognized powers of sovereignty, is impotent to obstruct interstate commerce, can it be that any mere voluntary association of individuals within the limits of that state has a power which the state itself does not possess?”17 Debs presented an innovative response to the problem of state dereliction. The Court devised a way to protect individual or minority rights, not in the face of unconstitutional acts of state power, but when the state failed to protect individuals or minority groups from majorities or mobs. The Court has met repeated criticism for not having done so in black civil-rights cases.18 The extraordinary circumstances of 10 11

12 13 14 15 16

17 18

In re Debs, 158 U.S. 564 (1895), 582. Ibid., 569. See Owen M. Fiss, Troubled Beginnings of the Modern State, 1888–1910 (Cambridge: Cambridge University Press, 2006 [1993]), 58–74. In re Debs, 597. Taft, Organized Labor, 155. In re Debs, 583–84, 594. The government subsequently dropped the charges. Eggert, “Pullman Strike,” 429; In re Debs, 600. See, for example, in re Doolittle, 23 F. 544 (1885), 547; Arthur v. Oakes, 63 F. 310 (1894), 317–18. In re Debs, 581. One black newspaper made this analogy, seeing Governor Altgeld’s objections to the use of federal power as reviving the Confederate idea of state sovereignty. Richmond Planet, 14 Jul. 1894, in The Black Worker: A Documentary History from Colonial Times to the Present, ed. Philip S. Foner and Ronald L. Lewis, 8 vols. (Philadelphia: Temple University Press, 1978–84), IV: 79.

The Old Regime: 1870–1900

36

the case – a national rail strike that had some resemblance to a rebellion – produced an extraordinary unanimity in the defense of an extraordinary remedy, the labor injunction. In years ahead, the device would be used in more ordinary cases.19 The Nation, while it supported the government in the Pullman strike, and the use of the injunction as “a kind of substitute for martial law,” warned that “it would discredit us all greatly if such practices were allowed to continue.”20 They did, and the injunction became the bête noire of organized labor, likened to “a gattling gun on paper.”21

the trust problem The Court’s first interpretation of the Sherman Antitrust Act of 1890 also fed the intense political controversy of the 1890s. Antitrust policy seeks to prevent a single producer (a monopolist) or conspiracies among producers (cartels or oligopolies) that increase their profits at the expense of competitors and consumers. In most markets, competition results in the greatest quantity of goods at the lowest prices, and encourages innovation and efficiency. Absent competition, monopolists can dictate prices and output, raising the former and lowering the latter, and stifle innovation. But certain industries are “natural monopolies,” or public utilities, in which no investment would be made unless protected against competition. The U.S. Constitution empowers Congress to grant temporary monopolies in order to encourage innovation in its patent and copyright clause. Much of the controversy over the railroad industry derived from the way in which the federal government used private capital to produce a public utility. Many capital-intensive industries, which enjoy such advantages as economies of scale and complex managerial structures, are “natural oligopolies,” in which only a small number of large firms can exist. American law does not condemn monopoly when it arises from one firm driving its competitors out of business by its greater efficiency. Only when firms use collusive or exclusive methods against their competitors does antitrust law become engaged.22 The King of England frequently granted monopolies, but a reaction against royal power and the rise of economic liberalism began to curtail monopoly grants in seventeenth- and eighteenth-century England. 19 20

21 22

Fiss, Troubled Beginnings, 74. “Government by Injunction,” Nation, 4 Apr. 1895, p. 253. It is hard to understand why anyone in such extraordinary circumstances would respect an injunction if he faced no penalties for violating them after the crisis had passed, and hard to reconcile this editorial with “The Bill to Authorize Anarchy,” ibid., 5 Nov. 1896, p. 341. “Cars Must Not Be Stopped,” New York Times, 3 Jul. 1894, p. 1. Thomas K. McCraw, “Rethinking the Trust Question,” in Regulation in Perspective: Historical Essays, ed. McCraw (Cambridge, MA: Harvard University Press, 1981); Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and Its Practice, 2d ed. (St. Paul, MN: West, 1999).

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Businessmen then tried to establish private monopolies. As Adam Smith put it in 1776, “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”23 The common law of England refused to enforce such conspiracies or contracts “in restraint of trade.” Since the conspirators were tempted to cheat and sell more or at a lower price in order to gain market share (known as “chiseling”), voluntary cartels usually collapsed. As the Industrial Revolution produced enormously large and concentrated corporations, Americans began to demand government action to counteract them. While most people recognized that large-scale economic organization yielded great economic benefits, many distrusted the power they wielded. Small producers, less efficient and often enjoying local monopolies, especially execrated the giant new enterprises. Thus the fundamental dilemma of American antitrust policy presented itself: how to enjoy the benefits of big business without monopoly abuse. A corollary question was whether antitrust’s goal was efficiency and consumer benefit, or the protection of small producers. Did it seek to maximize competition, or to maximize the number of competitors? While twentieth-century economists came to see these goals as contradictory, many in the late nineteenth century believed that they were compatible.24 The power to regulate monopolies lay with the states that chartered them. Though the Supreme Court endeavored to maintain a national freetrade area, it respected the states’ power to exclude foreign corporations and to control their own corporations. States could regulate manufacturing, but could not interfere in interstate commerce; the federal government could regulate interstate commerce but could not control manufacturing.25 As Justice L. Q. C. Lamar put it in 1888, “No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce. Manufacture is transformation – the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling, and the transportation incidental thereto, constitute commerce.”26 During the 1880s, many states did break up monopolies that had exceeded their charter powers in establishing monopolies. But at the end of the decade, New Jersey permitted its corporations to own stock in foreign corporations. By this device – the “holding company” – all of the trusts broken up in

23

24

25

26

Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Indianapolis: Liberty Fund, 1981), 145. James May, “Antitrust in the Formative Era: Political and Economic Theory in Constitutional and Antitrust Analysis, 1880–1918,” Ohio State Law Journal 50 (1989), 298–99. Charles W. McCurdy, “The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869–1903,” Business History Review 53 (1979), 310–14. Kidd v. Pearson, 128 U.S. 1 (1888), 20.

38

The Old Regime: 1870–1900

other states re-incorporated in the 1890s in New Jersey, condemned as the “traitor state” by antitrusters.27 However, other states retained the power to forbid their corporations to be acquired by New Jersey holding companies. They chose not to exercise this power. They coveted the jobs and tax revenue that the companies provided, and probably recognized the consumer benefits of consolidation. In the 1880s, despite the hue and cry against Standard Oil, U.S. Steel, and the sugar trust, the prices of refined petroleum fell 61 percent, those of ferrous metal products fell about 20 percent, and refined sugar prices fell 18 percent.28 State abdication of antitrust activity led Congress to enact the Sherman Antitrust Act in 1890. The Sherman Act went further than the common law, which made combinations in restraint of trade merely unenforceable. It made these conspiracies criminal. The act outlawed “every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states.”29 It provided for government prosecution with fines and prison terms, for court injunctions to prevent such combinations, and for suits by competitors against monopolists, who would be awarded damages three times as great as the harm they had suffered. The legislative history of the Sherman Act is very much disputed – Congress sought to protect both consumers and small producers. Nearly all contemporary economists opposed the Act, regarding the large-scale enterprises as efficient and good for consumers, and saw it as special-interest legislation for small, inefficient producers. The “classical” outlook that dominated late nineteenth-century economics had great confidence in the ability of free markets to correct themselves, and believed that monopoly abuses would not last long unless artificially sustained by government power. “Monopoly profits” would attract new producers and drive prices back down to the competitive level. One of the first federal suits targeted the American Sugar Refining Company (the “Sugar Trust”), a New Jersey holding company that controlled about twothirds of the industry by 1892. American Sugar then acquired the four Pennsylvania refiners that controlled the other third. The Justice Department sought an injunction to stop the sale, claiming that the stock-transfer transaction

27

28

29

Lincoln Steffens, “New Jersey: A Traitor State,” McClure’s (Apr. 1905), 649–64; Charles M. Yablon, “The Historical Race: Competition for Corporate Charters and the Rise and Decline of New Jersey, 1880–1912,” Journal of Corporation Law 32 (2007), 323–80. By 1902, corporate fees had permitted the state to eliminate its bonded debt and its property tax – Christopher Grandy, “New Jersey Corporate Chartermongering, 1875–1929,” Journal of Economic History 49 (1989), 683. James May, “Antitrust Practice and Procedure in the Formative Era: The Constitutional and Conceptual Reach of State Antitrust Law, 1880–1918,” University of Pennsylvania Law Review 135 (1987), 500; McCurdy, “The Knight Sugar Decision,” 317, 331–32, 338; Hovenkamp, Federal Antitrust Law. These price declines do not indicate, however, whether the efficiencies of the consolidated industries contributed more to higher profits, or higher wages, than they did to lower prices. 26 Stat. 209 (1890).

The Crisis of the 1890s

39

aimed to control and increase the price of sugar, “and thereby to exact and secure large sums of money,” in violation of the Sherman Act.30 The Justice Department chose an especially weak case, one with virtually no evidence of any price-control exercised by the trust.31 The government lost in circuit court and on appeal, and took the case to the Supreme Court. The Supreme Court also rejected the government’s case. Simply put, the stock-acquisition transaction did not constitute “commerce among the states,” and was a matter for state, not federal, regulation. Chief Justice Fuller wrote for the Court, “Commerce succeeds to manufacture, and is not part of it.” He stressed that the government could not turn the interstate commerce power into a power to suppress monopoly, or a police power. The boundary between the commerce and police powers, he said, “however sometimes perplexing, should always be recognized and observed, for, while the one furnishes the strongest bond of union, the other is essential to the preservation and autonomy of the states as required by our dual form of government.” Even the evils of monopoly “had better be borne, than the risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of doubtful constitutionality.”32 Justice Harlan wrote a lone dissent, detailing that state courts had uniformly regarded such combinations as monopolies, without squarely facing the federalism issue at the heart of the majority opinion. He simply proposed that Congress had a power equivalent to the states’ antitrust powers when monopoly products crossed state lines. But Harlan focused repeatedly on monopoly price abuse, and used terms such as “unreasonable” that would later complicate antitrust law even in cases where the Supreme Court allowed application of the Sherman Act. Harlan gratuitously denounced the company as a combination “governed entirely by the law of greed and selfishness . . . so all-pervading that they threaten the integrity of our institutions.”33 The retail price of sugar had fallen from almost seven to about five cents per pound between 1890 and 1895, and remained about six cents per pound until 1910. Competition quickly returned to the sugar-refining industry. The sugar trust’s market share had already fallen to 85 percent when Knight (1895) was decided, and fell to 25 percent by 1927. Ordinary market forces did much more than government to destroy monopolies.34 Moreover, the states, desiring to obtain the taxes, employment, and consumer benefits that big business provided, chose not to use the power that Knight left them.35 30 31

32 33 34

35

U.S. v. E. C. Knight Co., 156 U.S. 1 (1895), 1–4. McCurdy, “The Knight Sugar Decision,” 328; Joe A. Fisher, “The Knight Case Revisited,” The Historian 35 (1973), 369. U.S. v. E. C. Knight Co., 12–13. Ibid., 42, 44. Dominick T. Armentano, Antitrust and Monopoly: Anatomy of a Policy Failure (New York: Wiley, 1982), 50–51. McCurdy, “The Knight Sugar Decision,” 335–41.

The Old Regime: 1870–1900

40

the income tax The Democrats made tariff reduction second only to maintaining white supremacy and black disfranchisement in their 1892 platform, which denounced “Republican protection as a fraud, a robbery of the great majority of the American people for the benefit of the few.”36 To compensate for the revenue lost by the reduced tariff, Congress enacted a tax of 2 percent on all individual income over $4,000, and on all corporate income. The tax was not part of the party platform (the Populists had called for one), and President Cleveland disfavored it, allowing the bill to pass without his signature. Opponents called it a “direct” tax, that had to be apportioned among the states according to population. They also questioned its constitutionality insofar as it taxed income from state and municipal bonds, and the income of federal officials (judges and the president), whose salaries could not be reduced. Finally, they alleged that the $4,000 exemption violated the constitutional requirement that taxes be “uniform throughout the United States.” No clear definition of “direct” tax existed when the Constitution was ratified. In the Constitutional convention, “Mr. (Rufus) King asked what was the precise meaning of direct taxation,” Madison recorded, and “No one answered.”37 Many defined direct taxes as taxes on people and real property, or a tax that was not “shiftable.” Congress did enact a tax on land and slaves in 1798, and apportioned it among the states. In 1794, Congress had enacted a tax on carriages, on the assumption that this was an “excise,” and did not apportion it. Madison, in Congress, called it a direct tax. The Supreme Court held that it was not, and Justice William Paterson gave the explanation for the constitutional language. “The provision was made in favor of the southern states,” he recalled, which had large numbers of slaves and extensive, unproductive lands. They were vulnerable to ruinous taxation of land and slaves by a Congress controlled by the North. Paterson recognized that apportionment was one of the many compromises that went into the Constitution. But “it is radically wrong; it cannot be supported by any solid reasoning [and] ought not to be extended by construction.”38 As he had done with the Bank of the United States, Madison came to accept this interpretation when the government raised taxes for the War of 1812. When the Civil War began, Congress enacted a direct tax on land as well as a tax (“duty”) on incomes – 3 percent on income above $800. Very few people paid this income tax; after the war the exemption was raised so that even fewer paid. It expired in 1872. As Charles Sumner put it, “An income tax is a war tax. It

36 37

38

NPP (1892), 87. The Debates in the Several State Conventions, ed. Jonathan Elliot, 5 vols. (Philadelphia: J. B. Lippincott, 1863), V: 451. Hylton v. U.S., 3 U.S. 171 (1796), 177–78; Erik M. Jensen, “The Taxing Power, the Sixteenth Amendment, and the Meaning of ‘Incomes,’” Arizona State Law Journal 33 (2001), 1071–79.

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ought not to be made a peace tax. ‘The medicine of the Constitution should not become its daily bread.’”39 Few offered constitutional objections to the Civil War income tax. A legal challenge to it reached the Supreme Court in 1880, and the Court reaffirmed the 1794 carriage-tax decision, holding that an income tax was “an excise or duty.”40 Nor did calls for a renewal of the expired Civil War tax raise constitutional arguments. Thus, the case against the 1894 tax looked exceedingly weak. Moreover, the method by which the act was challenged – a stockholder suit to enjoin his company from paying the tax – seemed irregular and collusive. But the court accepted jurisdiction, and delivered its first decision in April 1895. Justice Jackson being ill, only eight justices heard the case. They held unanimously that income from state and municipal bonds could not be taxed by the federal government. Six justices held that a tax on the income from land was equivalent to a tax on the land itself, and therefore must be apportioned among the states. But the Court split evenly as to the income from personal property – capital investments – and on the question of whether the $4,000 exemption violated the uniformity provision. Justice Fuller insisted that the direct-tax provision was meant to prevent sectional majorities from despoiling minorities, “to restrain the exercise of the power of direct taxation to extraordinary emergencies, and to prevent an attack upon accumulated property by mere force of numbers.”41 Justice Field, though he had voted to sustain a nearly identical tax in the 1880 Springer case, now believed that the entire act was unconstitutional. He wrote a separate opinion, stressing the uniformity provision. He ardently concluded, “The present assault upon capital is but the beginning. It will be but the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich – a war constantly growing in intensity and bitterness.”42 Evenly divided on the major points, the justices scheduled a re-argument before the full court. The full court struck down the entire act by a 5–4 vote. A tax on personal property was a direct tax. Chief Justice Fuller explained that if the income from stocks and bonds could not be taxed, “what was intended as a tax on capital would remain, in substance, a tax on occupations and labor. We cannot believe that such was the intention of Congress,” and so the entire act was void. The uniformity question went unanswered. This decision provoked several bitter dissents. Justice Harlan wrote “that it is not possible for this court to have rendered any judgment more to be regretted than the one just rendered.” He called it a “judicial revolution that may sow the seeds of hate and distrust among

39

40

41 42

7 Apr. 1870, in The Works of Charles Sumner, 15 vols. (Boston: Lee and Shepard, 1870–83), XIII: 370–71. Springer v. United States, 102 U.S. 586 (1880). Strictly speaking, this case applied only to the wages or professional earnings of a lawyer, and did not reach the larger question of the income from real and personal property. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), 579, 582–83. Ibid., 607.

42

The Old Regime: 1870–1900

the people of different sections of our common country.” Perhaps with the contemporaneous dispute between the United States and Great Britain over the Guyana–Venezuela boundary in mind, he claimed that the decision “denies to the general government a power which is or may become vital to the very existence and preservation of the Union in a national emergency, such as that of war with a great commercial nation.” If the majority were correct, then “the American people cannot too soon amend their Constitution.” Justice Brown agreed that “it approaches the proportions of a national calamity.”43 Pollock had many contemporary defenders, but provoked more popular criticism than Debs or E. C. Knight.44 The income tax issue was no simple masses-versus-the-classes dispute. Before the 1890s, socialists had condemned it, while laissez-faire doyen William Graham Sumner defended it. Classical liberals preferred the income tax to the redistributive tariff, and some tariff advocates (particularly John Sherman) regarded the income tax as a way to preserve the tariff – as a kind of sop or palliative to prevent a radical change in public finance. Congressman Uriel S. Hall of Missouri called it “a measure to kill anarchy and keep down socialists.” One scholar sees Pollock as a threat to the tariff-based Republican system, an assault on the redistributive tariff system.45 In this light, far from defending the status quo, Pollock threatened it. This interpretation is rather too far-fetched, though. By the 1890s, the socialists had come to embrace the income tax, which John Sherman now denounced as “a low and mean form of socialism,” and called it “communism, socialism, devilism.”46 The Pollock majority did see the direct tax provision as a means, as Fuller put it, of preventing one section from despoiling another. What had once protected land and slaves, now protected stocks and bonds.47 It did preserve an important limitation on the taxing power for, as Publius noted, indirect or avoidable taxes contained sources of their own limitation while direct taxes did not.48 The income tax cases augmented the power of the Supreme Court. For the first time it had overturned an important act of Congress, and its interpretation had held. It took a constitutional amendment to reverse the decision, a testimony to the legitimacy of the Court’s decision.49 Marbury v. Madison may not have overturned an act of Congress at all, and even if it did, section 13 of the Judiciary

43 44

45

46 47

48 49

Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895), 637, 664–65, 671, 674, 695. Fiss, Troubled Beginnings, 95. One historian claims that the decision “may not have been too far from the actual desires of the public.” Loren P. Beth, The Development of the American Constitution, 1877–1917 (New York: Harper & Row, 1971), 42. Robert Stanley, Dimension of Law in the Service of Order: Origins of the Federal Income Tax, 1861–1913 (New York: Oxford University Press, 1993), 59, 76, 163. Fiss, Troubled Beginnings, 77; CR 26 (22 Jun. 1894), 6695. Progressive political scientist J. Allen Smith claimed that Pollock “merely gave effect to the original spirit and purpose of this [direct tax] provision.” The Spirit of American Government (Cambridge, MA: Belknap, 1965 [1907]), 320. Jensen, “The Taxing Power,” 1079; Federalist 21. John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 (Westport: Greenwood, 1978), 275.

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Act of 1789, increasing the original jurisdiction of the Supreme Court, was hardly an important act.50 Dred Scott overturned an important (if repealed) Act of Congress (the Missouri Compromise), but the Republican party did not accept its judgment as final on either the question of Congress’ power over slavery in the territories, or on black citizenship. The Republican Congress and administration proceeded to prohibit slavery in the territories and recognize the civil rights of free blacks, before the Thirteenth Amendment. Moreover, Congress established black civil rights in 1866, prior to the Fourteenth Amendment, indicating that this part of Dred Scott did not require a constitutional amendment for it to be overturned. In the Court’s next coordinate veto – of the legal tender act – it quickly reversed itself. Pollock intensified a debate over the origins and limits of judicial review, in which both supporters and opponents of the decision fashioned new and often dubious histories of that power.51

the election of 1896 Curiously, the Court reacted calmly and unanimously in the face of the violent Pullman strike, but with more division and alarm in the face of a very small income tax. This suggests that, as in the 1780s, constitutionalists cared more about the threat of organized legislative majorities than they did about mobs acting “out of doors.”52 That fear soon abated, though, for the Democratic-Populist party that condemned the Court was soundly defeated in the ensuing election.53 The Populists in 1892 had condemned “corruption” that “touches even the ermine of the bench,” suggesting that the judiciary was part of the “vast conspiracy against mankind [that] has been organized on two continents, and . . . is rapidly taking possession of the world. If not met and overthrown at once, it forebodes terrible social convulsion, the destruction of civilization, and the establishment of an absolute despotism.” Populists toned down the platform when they joined the Democrats in 1896. The platform complained that the Court had voided the income tax “passed by the Democratic Congress in strict pursuance of the uniform decisions of that court for nearly 100 years.” It called on Congress to “use all the constitutional power which remains after 50

51

52

53

The Court in Prigg v. Pennsylvania (41 U.S. 539 [1842]) did overturn parts of the Fugitive Slave Act of 1793 which required states to cooperate in the return of fugitives. Congress responded with a new act in 1850. Robert L. Clinton, Marbury v. Madison and Judicial Review (Lawrence: University Press of Kansas, 1989), 176, 184 Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: W. W. Norton, 1991), 84; Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887–95 (New York: Harper, 1969 [1960]), 159. Alan F. Westin, “The Supreme Court, the Populist Movement, and the Campaign of 1896,” Journal of Politics 15 (1953), 3–41.

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that decision, or which may come from its reversal by the court as it may hereafter be constituted,” echoing the Republican approach after Dred Scott. The platform denounced federal interference in local affairs, “and we especially object to government by injunction as a new and highly dangerous form of oppression by which federal judges in contempt of the laws of the states and rights of citizens, become at once legislators, judges, and executioners.”54 Specifically targeting the Debs case, this position would also protect white supremacy in the South. William Jennings Bryan tried to make silver the central issue of the campaign, and McKinley stressed the tariff; on neither issue did the courts play any role. Moreover, the Supreme Court in 1896 was almost evenly divided in partisan terms, with five Republicans and four Democrats, though the Democrats surely were more aligned with the Cleveland-gold wing of the party than with the Populists. The Cleveland Democrats formed their own, “National Democratic” party in 1896, and defended an independent judiciary. “We condemn all efforts to degrade that tribunal, or impair the confidence and respect which it has deservedly held.”55 The Republican platform said nothing about the Court, but McKinley did emphasize “law and order” in his campaign, which depicted Bryan as a radical, and defended labor injunctions as necessary to prevent “lawlessness and anarchy.”56 The election of 1896 showed popular support for the economic program of the Republican Party, and the judiciary’s reinforcement of it.57 The Populists and the Democrats lost their claim to speak for the populi, or demos, most notably the urban wage-earning population. Though violent episodes such as the Pullman strike seemed to evince intense discontent among industrial workers, when they had the chance to vote, they voted against the party that promised to liberate them from the oppression of their employers. Despite historians’ focus on industrial unrest and social conflict, these issues made little impression on the major political parties.58 Republican interest groups may well have outspent the Democrats, and even intimidated workers into voting Republican, but this was also the first presidential election conducted under the secret ballot. Moreover, it was the first in which the white South enjoyed having all of its black 54 55 56

57

58

NPP (1892), 89–90, (1896), 98–99. Ibid., 103. Gilbert C. Fite, “Election of 1896,” in History of American Presidential Elections, 1789–1968, ed. Arthur M. Schlesinger, Jr., 4 vols. (New York: Chelsea House, 1971), II: 1824; David T. and Linda R. Beito, “Gold Democrats and the Decline of Classical Liberalism, 1896–1900,” Independent Review 4 (2000), 555–75. James W. Ely, Jr., “Melville W. Fuller Reconsidered,” Journal of the Supreme Court Historical Society 1 (1998), 35–49. This is not to deny that ethnocultural and religious identities may be more important than economic factors in electoral behavior. Richard F. Bensel, The Political Economy of American Industrialization, 1877–1900 (Cambridge: Cambridge University Press, 2000), 12.

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population counted in the House of Representatives and Electoral College apportionments, while having disfranchised most of those blacks. The election reinforced the fundamental legitimacy of the late nineteenth-century political economy.59 In both this conflict and the ones of the early twentieth century, the criticism of the courts remained “a muted fury.”60

59

60

Walter Dean Burnham, “The System of 1896: An Analysis,” in The Evolution of American Electoral Systems, ed. Paul Kleppner et al. (Westport, CT: Greenwood, 1981), 164. William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton: Princeton University Press, 1994).

part ii EARLY PROGRESSIVISM

1900–1913

4 The New Jurisprudence

historism and historicism The orthodox constitutional system weathered the crisis of the 1890s, but that crisis also led many political actors and thinkers to novel approaches to deal with the problems of the new urban-industrial civilization. Scholars have collected these ideas and policies under the “progressive” heading. While difficult to define, progressivism shared a belief that the old constitutional system was inadequate, and that a significant empowerment of government (at whatever level) was needed. It shared the organic, evolutionary, and historicist features of post–Enlightenment, Romantic Western thought. Significant critiques of orthodox constitutionalism predated the progressive era. Antebellum writers questioned the adequacy of the Lockean basis of constitutional mechanisms such as checks and balances. Sidney George Fisher, like many European observers, believed that the Civil War had proved the inadequacy of the Constitution, for the first time arguing that such features as the separation of powers had failed. Many schools of thought that twentieth-century progressive and liberal historians have characterized as “conservative” represented repudiations of the natural rights liberalism of the founding. The fact that these intellectual innovators usually defended the Gilded Age social and economic order has obscured their departure from its constitutional foundations. For example, manynineteenth century historicists regarded the Constitution (and law in general) as the result of a people’s gradual adaptation to new economic and social circumstances. Historicists, sharing the larger Romantic reaction to the excesses of the French Revolution, preferred to emphasize continuity in American constitutional development, stressing the traditional “rights of Englishmen” rather than the American Revolution’s appeal to abstract, universal natural rights. Woodrow Wilson, for example, admired Walter

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Bagehot and the English historical approach to constitutional development – what Bagehot called “the living constitution.”1 Yet many historically minded American philosophers of law maintained a belief in a transcendent, absolute law of Nature, as well as the corollary orthodox idea that judges and legislators did not make, but rather declared, that law. They were confident that history (at least Anglo-American history) revealed those principles – that American constitutional history was the story of the realization of those ideas.2 In this view, history was just philosophy teaching by example – a much safer and sounder method than the French Revolution’s hyper-rationalist teaching by precept. Historicism may well have been “the chief theoretical agent of the destruction of the traditional teaching of natural rights,” but these early historicists were not fully historicist.3 They represented what Stephen Siegel calls “historism,” a “unique amalgam of traditional and modern social thought” that extended back to the Scottish Enlightenment.4 Their historical focus obscured the degree to which the American “tradition” was that of abstract, natural rights.5

langdell and scientism New methods of legal scholarship and education also subtly departed from constitutional orthodoxy. Christopher Columbus Langdell, the first dean of the Harvard Law School, sought to treat law as a science, with predictable results derived by induction from the observable facts of cases (the “case method”). Twentieth-century critics denigrated this method as part of a naïve 1

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Herman Belz, “The Constitution in the Gilded Age: The Beginnings of Constitutional Realism in American Scholarship,” American Journal of Legal History 13 (1969), 110–25; Merle Curti, “The Great Mr. Locke: America’s Philosopher, 1783–1861,” Huntington Library Bulletin 11 (1937), 143; Philip S. Paludan, A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era (Urbana: University of Illinois Press, 1975), 170–93; Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Knopf, 1973), 109; Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman & Littlefield, 2005), 12. William P. LaPiana, “Jurisprudence of History and Truth,” Rutgers Law Journal 23 (1992), 554– 56; Lewis A. Grossman, “James Coolidge Carter and Mugwump Jurisprudence,” Law and History Review 20 (2002), 577–629; Belz, “The Constitution in the Gilded Age,” 116; Stephen A. Siegel, “Historism in Late Nineteenth Century Constitutional Thought,” Wisconsin Law Review (1990), 1439, 1463, 1541. Fred Baumann, “Historicism and the Constitution,” in Confronting the Constitution, ed. Allan Bloom (Washington: A.E.I. Press, 1990), 306. Siegel, “Historism,” 1439; Frank D. Balog, “The Scottish Enlightenment and the Liberal Political Tradition,” in Confronting the Constitution, 206. Thus Roscoe Pound lamented that the historical method ended up “in practice strangely like that of the eighteenth-century law-of-nature school against which it arose to protest” – “Law in Books and Law in Action,” American Law Review 44 (1910), 27. Belz, “The Constitution in the Gilded Age,” 114; Harry V. Jaffa, “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” University of Puget Sound Law Review 10 (1987), 374.

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“formalism” that began to give way in the progressive era. Progressives would claim that this approach to law had produced “mechanical jurisprudence,” a method of decision by which a judge could simply apply a set of principles to a set of facts and infallibly arrive at a correct judgment.6 But Langdell aped Baconian natural science, while the founders shared more of the ancient and medieval traditional of teleological deduction.7 Langdell blossomed under Harvard President C. W. Eliot, who had observed Continental educational methods and brought the laboratory method to his chemistry classes. An amateur botanist, Langdell applied botanical taxonomy to the law. Contemporary critics of the new methods, such as Joel Bishop and George H. Smith, defended the old tradition. They applied legal principles to particular cases by means of deduction. The quality of such application varied; thus studying the cases alone would produce only an imperfect reflection of the higher principles. In their view, the Langdellian method vainly attempted to derive an “ought” from an “is.” Cases were only sound, Bishop argued, if they coincided with what God and Nature had made accessible to human reason.8 Smith saw the Harvard method as based upon “too novel an idea of science” – what some have called “scientism” or “scientific naturalism.” No conservative formalist, Langdell began the work of tearing down the Founders’ view of law; later, more radical progressives followed in the footsteps of the dean they claimed to have repudiated.9

the analytical school A clearer challenge to natural rights constitutionalism came from the English “analytical” school of jurisprudence, derived from utilitarianism and traceable to Hobbes. Jeremy Bentham and his legal acolyte, John Austin, developed a theory of legal positivism to attack William Blackstone’s claim that the law was a coherent, rational body of knowledge, and a fit subject for university study. Bentham and Austin reiterated Hobbes’ Dialogue Between a Philosopher and a Student of the Common

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Roscoe Pound, “Mechanical Jurisprudence,” Columbia Law Review 8 (1908), 605–23. Marcia Speziale, “Langdell’s Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory,” Vermont Law Review 5 (1980), 1–37; Bradley C. S. Watson, Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence (Wilmington, DE: I.S.I. Press, 2009), 163; Howard Schweber, “The ‘Science’ of Legal Science: The Model of the Natural Sciences in Nineteenth Century American Legal Education,” Law and History Review 17 (1999), 421–66. LaPiana, “Jurisprudence of History and Truth,” 527–35; Robert C. Bannister, Sociology and Scientism: The American Quest for Objectivity, 1880–1940 (Chapel Hill: University of North Carolina Press, 1987), 8; Susan Haack, Defending Science – Within Reason: Between Scientism and Cynicism (Amherst, NY: Prometheus, 2003), 17. Speziale, “Langdell’s Concept of Law as Science,” 3, 30–31, 35–37; Thomas C. Grey, “Langdell’s Orthodoxy,” University of Pittsburgh Law Review 45 (1983), 39.

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Laws of England.10 They, like Hobbes, saw English law as a monstrous historical accident, hopelessly irrational and corrupt. They also attacked the Lockean principle that individuals possessed natural rights that government ought to protect. Bentham wrote of Article II of the French Declaration of the Rights of Man and the Citizen (copying the American Declaration of Independence), “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, – nonsense upon stilts.”11 Rather, as Austin explained in The Province of Jurisprudence Determined (1832), law was simply the command of the sovereign, and thus made (or “posited”) rather than discovered or declared. Though Bentham himself applauded the American Revolution and Constitution for their reformist tendencies, he and his followers rejected their theoretical basis in the Declaration of Independence, defense in the Federalist Papers, and structural features – federalism, the separation of powers, and such features of the common law that it displayed. Bentham offered to write what he called a pannomion, or “all-embracing comprehensive collection of law,” for the United States in 1811, and for many states in later years. Codification of this kind was even more akin to “mechanical jurisprudence” than what the Langdellians promised.12

darwinism “Social Darwinism,” another intellectual strand of the late nineteenth century, usually called “conservative,” undermined the natural rights basis of American constitutionalism. It ultimately did far more to abet progressive causes than to buttress the status quo. William Graham Sumner, celebrated defender of laissez-faire in works such as “What Social Classes Owe Each Other,” offended progressive reformers such as Lester Frank Ward as much as he outraged the still-pious administration at Yale. President Noah Porter exhorted Sumner to stop using Herbert Spencer’s textbook because it “attacked every theistic theory of society.”13 Sumner shared Bentham’s 10

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J. M. Kelly, A Short History of Western Legal Theory (Oxford: Oxford University Press, 1992), 290; Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England, ed. Joseph Cropsey (Chicago: University of Chicago Press, 1971); James Herget, American Jurisprudence, 1870–1970: A History (Houston: Rice University Press, 1990), 14; Joseph Hamburger, “Utilitarianism and the Constitution,” in Confronting the Constitution, 242–43. “Anarchical Fallacies,” in The Works of Jeremy Bentham, ed. John Bowring, 11 vols. (Edinburgh: William Tait, 1843), II: 501. Peter J. King, Utilitarian Jurisprudence in America: The Influence of Bentham and Austin on American Legal Thought (New York: Garland, 1986), 21, 62, 103–09, 135; Hamburger, “Utilitarianism and the Constitution,” in Confronting the Constitution, 235–43; Bentham, “Pannomial Fragments,” in A Bentham Reader, ed. Mary Peter Mack (New York: Pegasus, 1969), 243. Ralph Henry Gabriel, The Course of American Democratic Thought, 3d ed. (Westport, CT: Greenwood, 1986), 228; William E. Nelson, The Roots of American Bureaucracy, 1830–1900 (Cambridge, MA: Harvard University Press, 1982), 107; Archer Jones, “Social Darwinism and Classical Economics: An Untested Hypothesis,” North Dakota Quarterly 46 (1978), 19–31.

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view of natural rights as “nonsense,” and asserted that “nothing but might has ever made right.”14 But no Darwinism had any impact on the late nineteenth-century American judiciary.15 Though evolutionary ideas infiltrated American law schools that modeled themselves on German university lines, this process had hardly begun by the 1870s.16 Most judges of that era had attended small, denominational colleges untouched by or hostile to historicism, utilitarianism, and Darwinism. They adhered to a traditional liberal arts curriculum, whose goal was not to produce cutting-edge research, but to transmit “a classical and Christian heritage deemed to be true and useful.”17 Its philosophy derived largely from the moderate Scottish Enlightenment of Yale and Princeton. The “common sense” or “moral sense” view of human nature arose in the eighteenth century, and John Witherspoon established it firmly in Princeton. It persisted late into the nineteenth century, the dominant theory in all major schools in the United States. Fifty-eight of seventy-five college presidents in 1840 had graduated from Yale or Princeton, and President Noah Porter kept the tradition alive at Yale well into the 1880s. It reflected a philosophy of “moral realism,” a belief that moral truths existed, could be known, and that happiness consisted in living in conformity with them. The president taught a capstone course in moral philosophy, as a tradition to pass on, not as a skeptical analysis or discovery of new precepts.18 Political economy, a subset of moral philosophy, did tend to endorse what might be called “laissez-faire,” but it was more concerned with religious and ethical principles than with any particular economic and social order. This worldview condemned Darwin and Sumner. Critics might well claim that by the late nineteenth century this intellectual model had degenerated into “a conservative apology for traditional religious and social beliefs, a philosophy devoted to cultural indoctrination, not scientific exploration.”19 But one cannot claim that “by 1870 Spencer’s ideas dominated American colleges and 14

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Robert C. Bannister, “William Graham Sumner’s Social Darwinism: A Reconsideration,” History of Political Economy 5 (1973), 90, 108; William Graham Sumner, Folkways: A Study of the Sociological Importance of Usages, Manners, Customs, Mores, and Morals (Boston: Ginn, 1906), 65. Nelson, Roots of American Bureaucracy, 85; Samuel R. Olken, “Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions,” William and Mary Bill of Rights Journal 6 (1997), 38. Mathias Reimann, “A Career in Itself: The German Professoriate as a Model for American Legal Academia,” in The Reception of Continental Ideas in the Common Law World, 1820–1920, ed. Reimann (Berlin: Duncker and Humblot, 1993), 165–202. Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860–1910 (De Kalb: Northern Illinois University Press, 2004). See also Robert E. Gamer, “Justice Brewer and Substantive Due Process: A Conservative Court Revisited,” Vanderbilt Law Review 18 (1965), 632; William F. Duker, “Mr. Justice Rufus Peckham: The Police Power and the Individual in a Changing World,” Brigham Young University Law Review 47 (1980), 49. Stephen A. Siegel, “Joel Bishop’s Orthodoxy,” Law and History Review 13 (1995), 243, 48; Henry F. May, The Enlightenment in America (New York: Oxford University Press, 1976), 347. Siegel, “Joel Bishop’s Orthodoxy,” 244.

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universities.”20 What progressives called “laissez-faire constitutionalism” derived from this older tradition of moral philosophy, rather than from any nineteenth-century economic theory, and certainly not from Darwinism. David Josiah Brewer, usually counted among the “laissez-fairest of them all,” provides an example of the persistence of traditional pedagogy. Brewer’s principal teacher was Theodore Dwight Woolsey, an ordained minister and classicist at Yale. Woolsey’s political views presupposed “a divinely authored moral order,” and he rejected utilitarianism and modern natural-rights theory, preferring older natural-law philosophy. Brewer’s constitutional theory followed in these lines. He regarded the Declaration of Independence, with its view of government as the guarantor of pre-existing natural rights, as the key to interpreting the Constitution. The Fourteenth Amendment in particular had more clearly articulated these founding principles.21 Though late nineteenth-century political science had repudiated these ideas, they retained vitality on the bench. They also remained popular. Brewer energetically voiced them in public, and was the most popular justice of his day. Justice John Marshall Harlan’s background and jurisprudence were quite similar to Brewer’s.22

holmes and pound One can see the often-overlapping challenge of the British analytical and German historical schools to natural rights-based American constitutionalism in two major turn-of-the-century legal philosophers, Oliver Wendell Holmes, Jr. and Roscoe Pound. A giant in American legal history, Holmes is also perhaps the most distorted figure in that history. The Civil War had a traumatic effect on him and induced a fundamental rupture with America’s founding principles. An ardent abolitionist before the war, Holmes volunteered, and was thrice seriously wounded. For Holmes, at least, the war produced profound doubt about the principles that had led him to fight. “He had gone off to fight because of his moral beliefs, which he held with singular fervor,” a recent biographer writes. “The war did more than make him lose those beliefs. It made him lose his belief in beliefs. . .. The lesson that Holmes took from the war can be put in a sentence. It is that certitude leads to violence.”23 He was reading Hobbes’s Leviathan when called into the Army; after the war he became almost a caricature of Social Darwinism.24 “Holmes had a brutal worldview and was indifferent to the 20 21

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Hyman, A More Perfect Union, 368. Hylton, “David Josiah Brewer,” 55; Linda Przybyszewski, “Judical Conservatism and Protestant Faith: The Case of David J. Brewer,” Journal of American History 91 (2004), 471–96. J. Gordon Hylton, “The Perils of Popularity: David Josiah Brewer and the Politics of Judicial Reputation,” Vanderbilt Law Review 62 (2009), 567–90; Linda Przybyszewski, The Republic According to John Marshall Harlan (Chapel Hill: University of North Carolina Press, 1999). Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus and Giroux, 2001), x, 4, 38, 61. Menand argues with much less success that the war had a similar impact on William James, Charles Sanders Peirce, and John Dewey. Ben W. Palmer, “Hobbes, Holmes and Hitler,” American Bar Association Journal 31 (1945), 572.

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welfare of others,” another biographer notes. He “sneered at all political and moral causes except eugenics, which he supported in an especially chilling form by advocating the execution of ‘everyone below standard.’”25 Another biographer says “The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.”26 Charles Evans Hughes believed that progressives had misunderstood Holmes, who really “believed in the triumph of force.”27 Holmes’s legal philosophy presented something of a makeshift combination of positivism and historicism.28 He attended Harvard Law School under Langdell and, though he was a trenchant critic of Langdell’s method – calling him “the greatest living legal theologian” – he actually shared his scientific approach to law.29 He certainly followed Langdell’s movement to convert “jurisprudence from a study of what ought to be into a study of what is (or used to be).”30 Holmes wrote in 1897, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” He continued, “Manifestly . . . nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law.” Law was a valuefree, predictive science. Holmes taught his students to understand the law from the perspective of the “bad man,” for whom law meant “a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. . .. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”31 In constitutional law, Holmes seldom found any limits to majority power. He thought primarily in terms of the community or the species, which established the standard of fitness that individuals had to meet.32 “It is no sufficient condemnation of legislation that it favors one class at the expense of another,” he wrote in 1873, “for much or all legislation does that. . .. Legislation is necessarily a means by which a body, having the power, puts burdens which are 25

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30 31

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Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 10, 27. Grant Gilmore, quoted in ibid., 31–32. The Autobiographical Notes of Charles Evans Hughes, ed. David J. Danelski and Joseph S. Tulchin (Cambridge, MA: Harvard University Press, 1973), 175. Thomas C. Grey, “Holmes and Legal Pragmatism,” Stanford Law Review 41 (1989), 787–870; Alschuler, Law Without Values, 86. Book Notice, American Law Review 14 (1880), 234; Neil Duxbury, Patterns of American Jurisprudence (New York: Oxford University Press, 1995), 38, 44, 48. Siegel, “Joel Bishop’s Orthodoxy,” 256. Oliver Wendell Holmes, Jr., “The Path of the Law,” Harvard Law Review 10 (1897), 464–65, 461. Duxbury, Patterns of American Jurisprudence, 44; G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges, expanded ed. (New York: Oxford, 1988), 165.

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disagreeable to them on the shoulders of somebody else.”33 Holmes appeared to have abandoned the founders’ effort to devise a solution to the problem, as Publius put it in Federalist 10, that often “different classes of legislators [are] but advocates and parties to the causes which they determine,” where “justice ought to hold the balance between them,” but too often did not. This rejection of the republican and Lockean idea that legislation ought to be limited to the “public good” grew out of Holmes’s rejection of the existence of any such thing as the public good, or good at all. As he put it in 1918, “I used to say, when I was young, that truth was the majority vote of that nation that could lick all others.”34 He confessed a year later that his philosophy came “devilish near to believing that might makes right.”35 He told Harold Laski in 1927, “I do accept ‘a rough equation between isness and oughtness’. . .. You respect the rights of man – I don’t, except those things a given crowd will fight for – which vary from religion to the price of a glass of beer. I also would fight for some things – but instead of saying that they ought to be I merely say they are part of the kind of world that I like – or should like.”36 While there appeared to be a conflict between the rationalism of the analytical or positivist English school of jurisprudence and the Romanticism of the German historicists, Holmes showed how they could work together. While the “historists” saw history confirming the principles of the common law, Holmes saw that history displayed law as the command of the powerful. Modern natural science inspired Roscoe Pound, who fashioned a variety of nineteenth-century legal trends into what he called “sociological jurisprudence.”37 Like Langdell, Pound was a botanist. He earned the first Ph.D. at the University of Nebraska, and his dissertation, “The Phytogeography of Nebraska,” was a minor classic. It represented a movement in botany away from a taxonomical focus on individual plants and species, toward seeing vegetation as a community, an ecological system. His botanical studies planted the seeds of his later jurisprudence. He spent a year at the Harvard Law School, and became the dean of the University of Nebraska Law School, which he remade in the image of Harvard. Though Pound evinced conservative Republican and anti-Populist leanings in the 1890s, he was influenced in a Reform Darwinist direction by his Nebraska colleague, Edward A. Ross.38 Pound denounced late nineteenth-century law as “mechanical jurisprudence,” displaying “a rigid scheme of deductions from a priori conceptions.” He 33 34 35 36

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“Summary of Events,” American Law Review 7 (1873), 584. Holmes, “Natural Law,” Harvard Law Review 32 (1918), 40. Alschuler, Law Without Values, 135. Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, ed. Mark DeWolfe Howe, 2 vols. (Cambridge, MA: Harvard University Press), II: 948. N. E. H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chicago Press, 1997), refers to Pound as a bricoleur – a handyman who cobbles together whatever materials are available, who took old ideas and put them to new uses. David Wigdor, Roscoe Pound: Philosopher of Law (Westport, CT: Greenwood, 1974), 24, 53– 55, 62, 111; Hull, Roscoe Pound and Karl Llewellyn, 55.

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embraced pragmatism, which had demonstrated that “theories are ‘instruments, not answers to enigmas, in which we can rest,’” he wrote, quoting William James. “The idea of science as a system of deductions has become obsolete, and the revolution which has taken place in other sciences in this regard must take place and is taking place in jurisprudence also.” He drew on his experience in botany, showing how it had moved beyond Linnean classification. “We have to rid ourselves of this sort of legality to attain a pragmatic, a sociological legal science. . .. The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law.”39 Thinkers such as Holmes and Pound would lead the way in the attack on constitutional orthodoxy in the early twentieth century. What is usually called “laissez-faire constitutionalism” derived from eighteenth-century moral philosophy, supplemented by antebellum equal-rights, anti-monopoly, and anti-slavery thought. It brought together the individualist-liberal and communitarianrepublican strands of the American founding in its condemnation of “class legislation” – the use of public power for private ends.40 It did not derive from an economic theory, and certainly not from Social Darwinism. No evidence indicates Darwinian influence in the educational and intellectual backgrounds of late nineteenth-century judges.41 And even if Darwinism was “in the air” of the period, it did not express itself in their opinions. As one historian notes, “I have found no opinion in which judges referred to Darwinism as distinguished from laissez-faire ideas that rested, in turn, upon the same classical liberal tradition from which many antislavery ideas about the rights of the individual emerged.”42 As another puts it, “The degree to which Darwin and Social Darwinism failed to permeate the thinking of the Supreme Court in any obvious way is most amazing.”43 Progressives also unfairly caricatured late nineteenth-century judges as naïve “formalists” who employed a “mechanical jurisprudence” that easily and infallibly applied natural-law principles to particular cases, and simply “declared” what the law was. In fact, they recognized the difficulty of the “discovery” of law.44 As Chief Justice Marshall put it in 1824, “Courts are the mere 39 40

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Pound, “Mechanical Jurisprudence,” 608–609. Michael Les Benedict, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3 (1985), 293–331. Mark Warren Bailey, Guardians of the Moral Order; Joseph F. Wall, “Social Darwinism and Constitutional Law with Special Reference to Lochner v. New York,” Annals of Science 33 (1976), 465–76. Nelson, Roots of American Bureaucracy, 85. Herbert Hovenkamp, Enterprise and American Law, 1836–1937 (Cambridge: Cambridge University Press, 1991), 100. It had little influence among businessmen, too – Irvin G. Wyllie, “Social Darwinism and the Businessman,” Proceedings of the American Philosophical Society 103 (1959), 629–35; John G. West, “Darwin’s Public Policy: Nineteenth Century Science and the Rise of the American Welfare State,” in The Progressive Revolution in Politics and Political Science, ed. John Marini and Ken Masugi (Lanham, MD: Rowman and Littlefield, 2005), 260. Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton: Princeton University Press, 2010).

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instruments of the law, and can will nothing.” Their discretion was legal, not political, “always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”45 Nineteenth-century judges and commentators understood that this was an ideal; actual judging often fell short of the mark.46 George H. Smith explained this in an 1889 article aptly entitled “Of the Certainty of the Law and the Uncertainty of Judicial Decisions.”47 He urged that the fallibility of human judges should not be taken as proof that there were no transcendent principles of law that judges ought to seek. Smith saw this as the error of positivism, “a theory of jurisprudence so absurd in the intellectual point of view, and so atrocious in morality, that it must ever remain the most wonderful instance on record of the triumph of bold assertion and apparently logical consistency over common sense.” American courts had resisted positivism, due to “the indisposition of English and American lawyers to read any but works bearing on their practice.” But, because of the rise of legal education, Smith lamented, “the poison has permeated the mass.”48

45 46 47 48

Osborne v. Bank of the United States, 22 U.S. 738 (1824), 866. Tamanaha, Beyond the Formalist-Realist Divide, 4, 19, 78. American Law Review 23 (1889), 47, 700–718. Ibid., 714. Roscoe Pound was still lamenting the endurance of natural-law ideas in American legal thought in 1909–10 – “Liberty of Contract,” Yale Law Journal 18 (1909), 464–68; “Law in Books and Law in Action,” American Law Review 44 (1910), 25.

5 The Due Process Dialectic

natural rights and the antebellum court Despite the decline of natural rights ideas among nineteenth-century intellectuals, the American courts accomplished a notable revival of natural rights jurisprudence. Judges frequently employed natural law principles in the early years of the republic.1 In 1793, for example, Justice James Wilson held that a South Carolina citizen could sue the state of Georgia, not simply because Article III of the Constitution gave the federal courts jurisdiction in “controversies between a state and citizens of another state,” but because of the “principles of general jurisprudence” upon which the Constitution rested.2 In the same term, the Court noted that “the right of trial by jury is a fundamental law, made sacred by the Constitution” and that “the right of acquiring and possessing property, and having it protected, is one of the natural, inherent rights of man.”3 Justice Samuel Chase gave a fuller statement of natural law theory in 1798. “The purposes for which men enter into society will determine the nature and terms of the social compact.” Any constitution based upon consent and limited to the public good must “overrule an apparent and flagrant abuse of legislative power. . . . An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.” Chase gave as examples “a law that makes a man a judge in his own cause, or a law that takes property from A and gives it to B.” “It is against all reason and justice, for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it.”4 1

2 3 4

Hadley Arkes, Beyond the Constitution (Princeton: Princeton University Press, 1990); Robert E. Riggs, “Substantive Due Process in 1791,” Wisconsin Law Review (1990), 941–1005; Frank R. Strong, Substantive Due Process of Law: A Dichotomy of Sense and Nonsense (Durham, NC: Carolina Academic Press, 1986); Ryan C. Williams, “The One and Only Substantive Due Process Clause,” Yale Law Journal 120 (2010), 454–59. Chisholm v. Georgia, 2 U.S. 419 (1793), 453. Vanhorne’s Lessee v. Dorrance, 2 U.S. 304 (1795), 310. Calder v. Bull, 3 U.S. 386 (1798), 388; John V. Orth, “Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm,” Constitutional Commentary 14 (1997), 337–45.

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Natural law-based jurisprudence receded in the federal courts of the early republic. The excesses of the French Revolution, which began with vehement assertions of the “rights of man,” made the whole Western world question Enlightenment rationalism. In America, the Jeffersonian and Jacksonian Democrats suspected natural law – like the common law – as the province of elite lawyers and judges. Thus Chief Justice John Marshall preferred to base his decisions on the Constitution’s text rather than to appeal to principles found beyond the Constitution. He relied principally on the contract clause, though he still cited “the principles which are common to our free institutions” – the “vested rights” of a property owner, as Chase had described them.5 But this particular clause simply gave textual expression to a natural law doctrine. As Madison noted, “Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact and to every principle of sound legislation.”6 Marshall thus called the contract clause “a bill of rights for the people of each state.”7 Justice Joseph Story more readily invoked natural law, particularly in his widely read Commentaries on the Constitution. Story’s Swift opinion, perhaps his greatest legacy, arose from his natural law disposition.8 Natural law principles persisted in the state courts and experienced a revival in the years before the Civil War, but progressive efforts to discredit natural-law judicial review have obscured this tradition of antebellum jurisprudence.9 State legislative excesses, especially their extravagant internal improvement schemes, fed popular suspicion of government. State constitutions and state courts limited legislative power. The New York Court of Appeals began to apply its state constitution’s declaration that no person could be deprived of life, liberty, or property without due process of law (a precept originally expressed in Chapter Thirty-Nine of Magna Carta, and in the Fifth Amendment of the U.S. Constitution), to strike down a prohibition of alcoholic beverages.10 This way of interpreting the phrase “due process of law” suggested that the phrase meant something more than the government’s exercise of power according to recognized procedure (often called “procedural due process”). It implied that fundamental or natural rights existed that government could not violate regardless of 5 6 7

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10

Fletcher v. Peck, 10 U.S. 87 (1810), 139. Federalist 44. Fletcher v. Peck, 138; Michael J. Phillips, “How Many Times Was Lochner-Era Substantive Due Process Effective?” Mercer Law Review 48 (1997), 1066. Joseph Story, Commentaries on the Constitution of the United States, 3 vols. (Boston: Hillard, Gray, 1833), secs. 1392–93; Terrett v. Taylor, 13 U.S. 43 (1815), 50; Peter Schotten, “The Art of the Judge: Justice Joseph Story and the Founders’ Constitution,” in History of American Political Thought, ed. Bryan-Paul Frost and Jeffrey Sikkenga (Lanham, MD: Lexington, 2003), 327–37. See chapter 2. Suzanna Sherry, “Natural Law in the States,” University of Cincinnati Law Review 61 (1992), 171–222; James W. Ely, Jr., “The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process,” Constitutional Commentary 16 (1999), 327; Williams, “The One and Only Substantive Due Process Clause,” 509–10. Wynehamer v. People, 13 N.Y. 378 (1856); Sherry, “Natural Law in the States,” 203–12.

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the forms it followed (which interpretation has been called “substantive due process”).11 The Court simultaneously noted that the Fifth Amendment did not permit Congress “to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law,’ by its mere will.”12 A recent study concludes that at least twenty state courts had adopted “substantive due process” standards before passage of the Fourteenth Amendment.13 The intensifying conflict over slavery drew both parties to the due process clause of the Fifth Amendment. Abolitionists argued that Congress was obliged to prohibit slavery in the territories because slavery deprived persons of their liberty without due process of law. The Republican Party embraced this idea in its 1860 platform.14 Southerners countered that Congress must protect slavery in the territories, lest it deprive slaveholders of their property without due process of law. Chief Justice Taney appeared to accept the latter position in the Dred Scott case. Though only two justices agreed on this particular point, Taney noted that the Missouri Compromise had been unconstitutional because “[a]n act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”15

the fourteenth amendment The Fourteenth Amendment gave the Constitution an added due process phrase, now applied to the states. The first legal-tender case showed that mid-nineteenth century judges were ready to read the due process clause of the Fifth Amendment as a substantive limit to legislative power.16 But the courts were not the only, and certainly not the ultimate, employers of natural law principles. For the Court 11

12

13 14 15

16

Usually derided as an “oxymoron,” “substantive due process” may well be a redundancy, if one reads “due” as a substantive modifier of “process,” akin to “just compensation.” Andrew T. Hyman denies this, and points out that “the little word due” also appears in the fugitive slave clause. (“The Little Word ‘Due,’” Akron Law Review 38 [2005], 1–51.) But this might be explained by the fact that the Constitution before the Thirteenth Amendment had positive provisions that were contrary to the natural law. Hence the Convention’s care in referring to slavery not as “legal,” but existing in some states “under the laws thereof.” The Debates in the Several State Conventions, ed. Jonathan Elliot, 5 vols. (Philadelphia: J. B. Lippincott, 1863), V: 550. Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. 272 (1856), 276, emphasis added. Williams, “The One and Only Substantive Due Process Clause,” 469. NPP (1860), 32. Dred Scott v. Sanford, 60 U.S. 393 (1857), 450; Williams, “The One and Only Substantive Due Process Clause,” 470–77; Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), 384. Hepburn v. Griswold, 75 U.S. 603 (1869), 623–25.

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was held accountable by the political branches and the people. The Supreme Court had little success when it engaged in natural law jurisprudence. Its 1793 decision that states could be sued by citizens of other states led to the Eleventh Amendment, which deprived the Court of jurisdiction in such cases. Justice Samuel Chase, who gave forceful expression to natural law principles, was impeached, and displayed considerable restraint after his acquittal. Dred Scott was also reversed by legislation, executive action, and amendment; and the Court reversed itself on the Legal Tender Cases.17 The Supreme Court analyzed the Fourteenth Amendment for the first time in the Slaughterhouse Cases of 1873. The controversy arose out of a Louisiana law that established a corporation with the exclusive right to establish abattoirs. As a public-health measure, the statute sought to remove slaughtering to a point downriver from the city. It posed a classic question of whether the police power was being used genuinely for the public good, or as a pretext to give special privileges to an interest group. Critics who detected “class legislation” noted that the legislature could have abated the nuisance of slaughtering without granting a monopolistic franchise. Moreover, evidence indicated that the Louisiana legislature had been bribed.18 A group of butchers challenged the law, claiming that it violated both the Thirteenth and Fourteenth Amendments, subjecting them to involuntary servitude, abridging their privileges and immunities, depriving them of their liberty and property without due process, and denying them the equal protection of the laws. The Court narrowly upheld the act, in a 5–4 decision written by Justice Samuel F. Miller. Miller interpreted the privileges and immunities clause so narrowly that it became a dead letter ever after. Of the due process claim, he wrote, “it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible,” could the act “be held to be a deprivation of property within the meaning of that provision.”19 And the benefits of the equal protection clause he limited almost entirely to the former slaves. Miller and the majority have been harshly criticized for this decision, accused of practically nullifying the Fourteenth Amendment.20 But Miller chiefly sought to preserve the federal system, and to avoid making the court “a perpetual censor upon all legislation of the states.”21 17

18

19 20 21

Executive and political action had challenged Dred Scott before the Fourteenth Amendment. Congress abolished slavery in the territories, the State Department issued passports to free blacks, and Congress enacted the Civil Rights Act of 1866. Durbridge v. Slaughterhouse Co., 27 La. Ann. 676 (1875); Richard M. Labbé and Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (Lawrence: University Press of Kansas, 2003), 82; Charles Fairman, Reconstruction and Reunion, 1864–88, Part One (New York: Macmillan, 1971), 1323. Slaughterhouse Cases, 83 U.S. 36 (1873), 81. Loren P. Beth, “The Slaughter-House Cases – Revisited,” Louisiana Law Review 23 (1963), 504. Slaughterhouse Cases, 78; Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review (1979), 39–79.

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The four dissenting justices demonstrated the vitality of natural law principles in the Civil War era. “No one will deny the abstract justice” of the butchers’ case, Justice Stephen Field wrote, which was also supported by the Constitution. The law was enacted “under the pretense of prescribing a police regulation,” and created “special and exclusive privileges by which the health of the city is in no way promoted.” The majority’s interpretation turned the Fourteenth Amendment into “a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage.” Field would keep the privileges-and-immunities clause alive, saying that it did for citizens of the United States what Article IV’s privileges-and-immunities clause did for citizens of the states. It protected everyone, not just out-of-state citizens, from monopolies and other kinds of class legislation. Any truly republican government must recognize everyone’s equal right to work at any lawful occupation. The particular clauses of the Fourteenth Amendment really made little difference, for “grants of exclusive privilege . . . are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void.” Justice Bradley agreed that the Constitution did not need to enumerate such fundamental rights, and called the law “onerous, unreasonable, arbitrary and unjust.” Justice Noah Swayne also dissented, adding that “labor is property, and as such merits protection. . .. A more flagrant and indefensible invasion of the rights of many for the benefit of a few has not occurred in the legislative history of the country.”22 The Court veered in the direction of the Slaughterhouse dissenters the next year, when it held unconstitutional a Kansas act that authorized a city to issue bonds to promote a bridge-manufacturing company. Here, Justice Miller responded favorably to the argument that such an act involved “perverting the right of taxation, which can only be exercised for a public use, to the aid of individual interests and personal purposes of profit and gain.”23 He distinguished this case from those in which the Court had upheld similar loans to promote railroads.24 Nobody disputed that taxation must be for a public purpose; the only dispute in the railroad cases was whether railroads were a genuinely public good. Miller conceded that certain rights were beyond the control of the state. “A government which recognized no such rights, which held the lives, liberties, and the property of its citizens subject at all times to the absolute despotism and unlimited control of even the most democratic depository of power, is after all but a despotism.” He noted that the American people had granted none of their governments unlimited power. Kansas’s act was “none the less a robbery because it is done under the forms of law and is called taxation.”25 Only Justice Clifford dissented. Notably, laissez-faire proponent

22 23 24

25

Slaughterhouse Cases, 86–88, 96, 101, 110–11, 113–14, 119–20, 127–28. Loan Association v. Topeka, 87 U.S. 655 (1874), 659. See Chapter 2. Miller conceded that some state courts had struck down railroad aid, but “very few of these courts have decided this without a division among the judges,” seemingly unaware of what this implied for the 5–4 decision in Slaughterhouse. Loan Association v. Topeka, 662–64.

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William Graham Sumner opposed this decision on legal-positivist grounds, due to its invocation of natural law principles.26

the road from munn The due process dialectic continued later in the decade, most significantly in Munn v. Illinois, one of the “granger cases.” Disgruntled farmers called on the legislature to counter the alleged monopoly power of railroads and grain elevators.27 The Illinois Constitution of 1870 declared that “all elevators or storehouses where grain or other property is stored . . . are declared to be public warehouses,” and prohibited anyone from storing grain without a license from the state.28 Two operators convicted of storing grain without such a license appealed their conviction. The Supreme Court upheld the law in a 7–2 decision that gave a broad definition to the police power. Chief Justice Morrison R. Waite wrote that “Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained.” The Court accepted that private grain elevators could be made public institutions by simple legislative declaration. Despite the fact that the grain elevators enjoyed no public franchise (indeed, they were not even incorporated), “Property does become clothed with a public interest when used in a manner to make it of public consequence. . .. When, therefore, one devotes his property to a use in which the public has an interest he, in effect, grants to the public an interest in that use.” The courts “must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute” was enacted. The court would overturn a regulation only if “no state of circumstances could exist” to justify it – that is to say, if the act was utterly irrational or absurd. Finally, as to the right of even publicly defined property owners to a reasonable compensation, the legislature determined what was “reasonable.” The court concluded that “For protection against abuses by legislatures, the people must resort to the polls, not to the courts.”29 Taken at face value, Munn obliterated all limits to legislative power, and all judicial protection of minority rights. Munn, rather than its later abridgements, was the quintessence of “formalism.”30 As Justice Field put it in dissent, “The declaration . . . that private buildings used for private purposes shall be deemed public institutions does not make them so.”31 The majority’s standard reflected an older, communitarian standard of public power (Waite’s chief source was 26 27

28 29 30 31

Fairman, Reconstruction and Reunion, 1864–88, Part One, 1112. It is doubtful that the elevators in this case had monopoly power – certainly not from any grant of public power, and probably not by market power – Edmund W. Kitch and Clara A. Bowler, “The Facts of Munn v. Illinois,” Supreme Court Review (1978), 316. Munn v. Illinois, 94 U.S. 113 (1877), 114. Ibid., 123, 126, 132–34, italics added. Timothy Sandefur, “The Right to Earn a Living,” Chapman Law Review 6 (2003), 262. Munn v. Illinois, 138.

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Lord Hale’s 1670 treatise, De Juris Mare), one to which late nineteenthcentury state courts had been returning, but which the federal courts began to curtail.32 The court almost immediately began to qualify Munn.33 In its next term it upheld a New Orleans property tax for swamp-drainage, but declared that a state could not “make anything due process of law which, by its own legislation, it chooses to declare” such. Otherwise, the due process clause “is of no avail, or has no application where the invasion of private right is effected under the forms of state legislation.” No law could take property from “A” and vest it in “B.”34 Justice Bradley concurred, but added that the decision read the due process clause too narrowly. “We are entitled, under the Fourteenth Amendment, not only to see that there is some process of law, but ‘due process of law.’”35 Subsequent cases involving railroad rate and prohibition laws further qualified the Munn standard. In 1885, the Court, upholding a Mississippi rate regulation, noted that the “power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation.” The courts would not let legislators use regulation as a pretext for an uncompensated taking of private property.36 The Court here echoed the New York Court of Appeals’ point that there had to be some line between regulation and confiscation. A state “cannot totally annihilate commerce in any species of property, and so condemn the property itself to extinction.” Nor could it “regulate trade in property of all kinds. . .. [B]etween regulation and destruction there is somewhere, however difficult to define with precision, a line of separation.”37 The dissenters, who wanted the rates overturned, admitted as much.38 The Court repeated this in 1887 when reviewing a Kansas prohibition statute. The law was a valid exercise of the police power, to promote the safety, health, welfare and morals of the people. Liberty was not license.39 But the Court recognized that not “every statute enacted ostensibly for the promotion of these ends, is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go.” Courts should give legislatures every benefit of the doubt, but were “not bound by mere forms, nor are

32

33

34 35 36

37 38 39

Harry N. Scheiber, “The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts,” Perspectives in American History 5 (1971), 331, 383. As one progressive journal noted decades later, “The litigation was actually invited by the apologetic words of the [Munn and Slaughterhouse] majority.” Charles E. Clark, “The Supreme Court and the N.R.A.,” New Republic, 12 Jun. 1935, p. 121. Davidson v. New Orleans, 96 U.S. 97 (1878), 102. Ibid., 107, emphasis added. Railroad Commission Cases, 116 U.S. 307 (1885), 331. It is notable that the Court appeared to matter-of-factly “incorporate” the Fifth Amendment takings clause in this case. Wynehamer v. People, 399. Railroad Commission Cases, 341. Mugler v. Kansas, 123 U.S. 623 (1887), 660. The Court recognized that prohibition laws might present due process problems in the 1873 case of Bartemeyer v. Iowa (85 U.S. 129), but dismissed the case as moot or collusive.

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they to be misled by mere pretences. They are at liberty – indeed, are under a solemn duty – to look at the substance of things.”40

the fuller court and due process A rapid turnover of Court personnel accelerated the reconsideration of the Munn standard. Six new justices joined the Court between 1888 and 1894. In 1888, Grover Cleveland appointed Melville W. Fuller as Chief Justice, heralding what is usually regarded as the beginning of the “laissez-faire” Court. In 1890, President Harrison appointed David Josiah Brewer, Stephen Field’s nephew and the first federal trial-court judge to reject the Munn standard in favor of a judicial test of reasonableness.41 In 1890, the Court began to strike down state regulations on due process grounds. It held that the Minnesota railroad commission could not set rates without allowing judicial review of their reasonableness. Moreover, to subject railroads to such arbitrary limitations while others were free to set their prices deprived the railroads of the equal protection of the laws.42 Justice Bradley, with Justices Gray and Lamar, vehemently dissented, noting that the decision in effect overturned Munn, and claimed that the reasonableness of rates was a legislative, not a judicial, question. Bradley also noted that the Court had effectively applied the takings clause of the Fifth Amendment, heretofore limited to the federal government, to the states.43 But Bradley himself had recognized that taking property without just compensation denied due process one year after Munn.44 The Court explicitly applied the Fifth Amendment takings clause to the states in 1897. The city of Chicago had taken land from a railroad for a street, and a jury awarded the railroad one dollar as compensation. The Supreme Court upheld the decision, but agreed that just compensation for takings was included in the due process clause of the Fourteenth Amendment.45 Thus the Court had confirmed that the Fourteenth Amendment imposed substantive limitations on the states, and that these limitations might be of the same nature as those enumerated in the Bill of Rights. In the last decade of the nineteenth century, six justices had held that the privileges-and-immunities 40 41

42 43 44 45

Ibid., 661. Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997), 260. Chicago, Milwaukee & St. Paul Ry. v. Minnesota, 134 U.S. 418 (1890), 458. Ibid., 462, 465. Davidson v. New Orleans. Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897). David N. Mayer, “The Myth of ‘Laissez-Faire Constitutionalism’: Liberty of Contract During the Lochner Era,” Hastings Constitutional Law Quarterly 36 (2009), 229. One could say that the “incorporation” of the takings clause took place more than 100 years earlier, when Justice Paterson said that Pennsylvania “had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without a just compensation” – Vanhorne’s Lessee v. Dorrance, 2 U.S. 304 (1795), 310.

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clause of the Fourteenth Amendment applied the Bill of Rights to the states, but a majority had never said so simultaneously. This idea later came to be called “selective incorporation” – that the rights secured by the due process clause were similar, but not identical, to those listed in the Bill of Rights.46 In 1884, the Court noted that since the federal Bill of Rights included a long list of specific rights in addition to due process, due process in the Fourteenth Amendment could not include the others. No part of the Constitution was superfluous.47 But this “nonsuperfluousness” argument against incorporation was quite weak – legislative and constitutional draftsmen were often not as careful as the Court suggested.48 In fact, the principle was more suited to ordinary legal instruments such as deeds and contracts than to statutes and constitutions. Moreover, the Bill of Rights itself could be called superfluous, as Hamilton argued in Federalist 84 and as Madison suggested when introducing them in the first Congress.49 The Court had adopted a middle position. It ensured that the Fourteenth Amendment meant something, that it was not the “vain and idle enactment” or “brutum fulmen” that the Slaughterhouse dissenters decried. As Justice Harlan put it, “You will never hear the end of that phrase as long as this is a free country.”50 But it also prevented the Court from becoming the “perpetual censor” that the Slaughterhouse majority feared. After Slaughterhouse had eviscerated the privileges-and-immunities clause, the due process clause stepped in to protect fundamental rights. The equal protection clause might have done just as well. Several late nineteenth-century railroad and prohibition cases suggested this. Some of the framers of the Fourteenth Amendment regarded due process as an adjunct to the principal, equal protection clause of the amendment. Many state courts also regarded due process and equal protection as equivalents, and Thomas McIntyre Cooley interpreted due process as including equal protection and more.51

46

47 48

49

50

51

Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986), 110–13, 191. Hurtado v. California, 110 U.S. 516 (1884), 534. Rodney L. Mott, Due Process of Law: A Historical and Analytical Treatise of the Principles and Methods Followed by Courts in the Application of the Concept of the “Law of the Land” (New York: Da Capo, 1973 [1926]), 144; Bryan H. Wildenthal, “The Road to Twining v. New Jersey: Reassessing the Disincorporation of the Bill of Rights,” Ohio State Law Journal 61 (2000), 1457– 1528. Charles A. Lofgren, “The Origins of the Tenth Amendment: History, Sovereignty, and the Problem of Constitutional Intention,” in Constitutional Government in America: Essays and Proceedings from Southwestern University Law Review’s First West Coast Conference on Constitutional Law, ed. Ronald K. L. Collins (Durham, NC: Carolina Academic Press, 1980), 347. Linda Przybyszewski, The Republic According to John Marshall Harlan (Chapel Hill: University of North Carolina Press, 1999), 163. Mott, Due Process of Law, 162–64, 262, 277; Barry Cushman, “Some Varieties and Vicissitudes of Lochnerism,” Boston University Law Review 85 (2005), 101–85; V. F. Nourse and Sarah A. Maguire, “The Lost History of Governance and Equal Protection,” Duke Law Journal 58 (2009), 970.

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The Fourteenth Amendment, reiterating the Civil Rights Act of 1866, primarily concerned economic rights – the right to make and enforce contracts especially. But nothing in its text or in later court decisions suggested that the Court regarded only economic property rights (such as just compensation for takings), and not “personal rights,” as protected by the Fourteenth Amendment.52 In a case closely related to Hurtado, the Court held that the Fifth Amendment’s double-jeopardy provision did not apply to the states. This case involved bank directors who gave false information to the state bank examiner, and so could be seen as an economic-regulation decision as much as a criminal-procedure one.53 In 1892, three dissenting justices had maintained that the Fourteenth Amendment ensured that no state could impose a cruel and unusual punishment.54 The Court first developed due process and incorporation in railroad cases because railroads had become the object of so much hostile and discriminatory state regulation, and it did so with notable reluctance.55 But state railroad regulation presented a classic instance of inter-state discrimination, of the kind that had led it to develop a general commercial law in diversity suits.56 States exploited their power to regulate intrasate railroad rates to shift the cost of railroad service onto other states. Southern and Western states especially felt that they suffered from long-haul/short-haul discrimination, though this was untrue. Since Congress could not (yet) regulate intrastate rates, the Court intervened to prevent state opportunism from disrupting the national transportation system and balkanizing the national economy. Lambasted for activism, the Court may rather have not done enough. One scholar chides it “not for interfering in the state rate-making process, but for setting a constitutional minimum too low to prevent state free-riding, which undermined the integrity of the 52

53

54

55 56

On the Fourteenth Amendment’s roots in the Civil Rights Act of 1866, see Earl Maltz, “Reconstruction without Revolution: Republican Civil Rights Theory in the Era of the Fourteenth Amendment,” Houston Law Review 24 (1987), 225; Bernard H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), 50; Alfred Avins, “The Right to Work and the Fourteenth Amendment: The Original Understanding,” Labor Law Journal 18 (1967), 15–28; William E. Forbath, “The Ambiguities of Free Labor: Labor and the Law in the Gilded Age,” Wisconsin Law Review (1985), 786. Twining v. New Jersey, 211 U.S. 78 (1908); Edward A. Purcell, Jr., “Rethinking Constitutional Change,” Virginia Law Review 80 (1994), 285. O’Neil v. Vermont, 144 U.S. 323 (1892), 362–63, 370; Robert Goedecke, “Justice Field and Inherent Rights,” Review of Politics 27 (1965), 204. O’Neil v. Vermont, 339. See Chapter 2. Harry N. Scheiber notes the “strong genetic marks of a general-jurisprudence paternity” for the substantive due process/liberty of contract principle. “Federalism and the American Economic Order, 1789–1910,” Law and Society Review 10 (1975), 104. The same might be said of the “public purpose” doctrine in the railroad bond cases – Robert Olender, “A Legacy of Limitation: Thomas M. Cooley, Public Purpose, and the General Welfare,” Michigan Historical Review 33 (2007), 25. See also Michael G. Collins, “Before Lochner: Diversity Jurisdiction and the Development of General Constitutional Law,” Tulane Law Review 74 (2000), 1263–1322; L. A. Powe, Jr., “Rehearsal for Substantive Due Process: The Municipal Bond Cases,” Texas Law Review 53 (1975), 738–56.

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national railroad system.”57 The Court’s “judicial holding action” helped to preserve national public utilities, until Congress stepped in.58 Interstate discrimination featured prominently in the other “laissez-faire” doctrine that the Court introduced at the end of the century – “liberty of contract.” Louisiana criminalized the purchase of marine insurance from any out-of-state company not licensed to do business in Louisiana. The Court unanimously overturned this act. Although a state could prohibit a foreign corporation from doing business within its borders, it could not prohibit its citizens from making contracts with citizens in other states. Such an act deprived its citizens of liberty without due process of law. Justice Peckham wrote that the Fourteenth Amendment protected “not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration,” but also “the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts” to attain those ends.59 As in the railroad-bond cases, the Court did not allow a state to impose its own restrictions on liberty to citizens of other states.

57

58

59

Herbert Hovenkamp, “Regulatory Conflict in the Gilded Age: Federalism and the Railroad Problem,” Yale Law Journal 97 (1988), 1031, 1052, 1059, 1066. Mary Cornelia Porter, “That Commerce Shall Be Free: A New Look at the Old Laissez-Faire Court,” Supreme Court Review (1976), 155. See also Porter, “John Marshall Harlan the Elder & Federal Common Law: A Lesson from History,” Supreme Court Review (1972), 103–34. Allgeyer v. Louisiana, 165 U.S. 578 (1897), 589. The act would have been an obvious infringement of Congress’s power to regulate interstate commerce, but the Court had previously held that insurance was not “commerce.”

6 Toward a Federal Police Power

the commerce power and antitrust Congress and the president began to respond to calls for reform in industrial policy after the crisis of the 1890s, and the Supreme Court gradually expanded federal regulatory power under the Sherman Act after the 1895 sugar trust decision. In 1899 it held that a price-fixing scheme among pipe manufacturers in several states fell within Congress’ power to regulate interstate commerce.1 Such “loose” or cartel combinations were more vulnerable than the “tight” or holding company trusts such as American Sugar. In two railroad cases, the Court read the Sherman Act’s prohibition of “every” contract in restraint of trade literally – to prohibit pooling arrangements among railroads.2 Ironically, the Sherman Act could most effectively assail a “natural monopoly” such as railroads, where competition was impossible. Perhaps the most important extension of the federal government’s commerce power came in 1905, when the Court held that the various operations of a meatpacking company, while separately local and non-commercial, constituted a “stream of commerce” that could be regulated.3 The Court had begun to shift its analysis from the type of activity (manufacturing versus commerce) to its impact on commerce. Finally, in 1911 the Court took a step back and adopted the “rule of reason,” holding that not “every” combination, but only unreasonable combinations – for the most part, those with no public or consumer benefit – ran afoul of the Sherman Act.4 While the intensity of the Act abated (from “every combination” to “unreasonable” ones), its scope expanded.

organized labor and liberty of contract In the aftermath of the Pullman strike, Congress followed the recommendations of the U.S. Strike Commission, and enacted a bill to provide more orderly labor 1 2

3 4

Addyston Pipe and Steel Co. v. U.S., 175 U.S. 211 (1899). U.S. v. Trans-Missouri Freight Association, 166 U.S. 290 (1897); U.S. v. Joint Traffic Association, 171 U.S. 505 (1898). Swift & Co. v. U.S., 196 U.S. 375 (1905). Standard Oil Co. v. U.S., 221 U.S. 1 (1911); U.S. v. American Tobacco Co., 221 U.S. 106 (1911).

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relations in the railroad industry.5 Most of the provisions of “An Act Concerning Carriers Engaged in Interstate Commerce and Their Employees” (the Erdman Act) concerned federal mediation of labor disputes. Section 10 outlawed “yellow-dog contracts,” in which employees agreed to refrain from joining a union. It outlawed any kind of discrimination against workers on the basis of union membership, as well as “blacklisting” former employees.6 Its proponents argued that railroad workers needed the assistance of the government in negotiating with their employers, because they did not have equal bargaining power.7 But the act gave organized labor less than it wanted. The railroad brotherhoods supported the Act, but did not push for it. The AFL opposed it, because it continued to recognize the judicial power to issue injunctions against strikes.8 Congress gave little attention to section 10, and none to its constitutionality. Senator Erdman, when questioned as to Congress’s power to enact such a law, said that the commerce power included “any incidental provision closely connected with and affecting interstate commerce.”9 As one historian notes, “Perhaps the most striking feature of the Erdman Act was that it was, in its final form, a complete mess.”10 Since railroads clearly engaged in “commerce among the states,” the Supreme Court might have upheld the labor regulations of the Erdman Act. The Court had accepted the 1893 Safety Appliance Act, which required air-brakes and automatic couplers, and did away with the assumption-of-risk rule. In 1906, Congress enacted the Employer’s Liability Act, which abolished the fellowservant and contributory-negligence rules, to make it easier for injured railroad workers to recover damages. This represented a legislative response to court decisions such as Baugh, revising a federal common law rule. The Supreme Court upheld the liability Act after Congress clarified that it applied only to workers engaged in interstate commerce.11 But the Court drew the line at the Erdman Act’s attempt to promote railroad unions, and applied the due process/ liberty of contract principle. Adair v. U.S. arose when William Adair, of the Louisville & Nashville Railroad, fired O. B. Coppage, for his membership in the Brotherhood of 5

6

7 8

9 10

11

United States Strike Commission, Report on the Chicago Strike, June-July 1894 (Washington: G.P.O., 1895), xlvi-liv. 30 Stat. 424 (1898); The language of the Act appeared to prevent a former employer from taking any action to prevent a former employee from obtaining a new job, whether on union grounds or any other. CR 27 (26 Feb. 1895), 2792–93, 2797. George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge: Cambridge University Press, 2002), 72, 88. The act exempted streetrailway workers and seamen, who were often AFL members. CR 27 (26 Feb. 1895), 2790. Lovell, Legislative Deferrals, 73; Keith E. Whittington, “Congress Before the Lochner Court,” Boston University Law Review 85 (2005), 854. The act still maintained a standard of fault or negligence, but one of comparative negligence – an injured employee who contributed to his own injury would not be entirely unable to recover, but would have his award reduced in proportion to his contribution to the injury.

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Locomotive Firemen. Justice Harlan wrote the decision for the six-man majority. He held that the Act exceeded Congress’s power to regulate interstate commerce. “What possible legal or logical connection is there between an employee’s membership in a labor organization and the carrying on of interstate commerce?” he asked. But the bulk of his opinion concerned the Fifth Amendment’s due process limitation on Congress. Harlan articulated a classic statement of the liberty-of-contract idea. “The rights of liberty and property guaranteed by the Constitution against deprivation without due process of law are subject to such reasonable restraints as the common good or the general welfare may require,” he wrote. But the government could not “compel any person, in the course of his business and against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another.” Harlan depicted the employee’s right to sell his labor and the employer’s right to employ him as equal. “So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee,” he argued. “Legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.” The parties were perfectly free to make whatever contractual terms they believed advantageous. Congress could not place the “employer . . . under any legal obligation, against his will, to retain an employee in his personal service any more than an employee can be compelled, against his will, to remain in the personal service of another.”12 The dissenters, contemporary critics, and historians ever since have defended the Act as necessary to equalize bargaining power between railroad corporations and their employees. Justice McKenna referred to the Strike Commission report that unionization would promote “a measure of equality of power and force which will surely bring about the essential requisites of friendly relation, respect, consideration and forbearance.” Justice Holmes agreed, noting that the Act “simply prohibits the more powerful party to exact certain undertakings, or to threaten dismissal or unjustly discriminate on certain grounds against those already employed.”13 Roscoe Pound targeted the Adair decision in one of his most famous essays, “Liberty of Contract.” Pound contrasted Harlan’s legal view of equality with the sociological view of Lester Frank Ward, who observed that “Much of the discussion about ‘equal rights’ is utterly hollow. All the ado made over the system of contract is surcharged with fallacy.” Pound averred that “To everyone acquainted at first hand with actual industrial conditions the latter statement goes without saying.” He went on to explain why the courts insisted on using an obsolete, eighteenth-century principle in twentieth-century circumstances – why they continued to treat helpless employees and gigantic corporations “as if they

12 13

Adair v. U.S., 208 U.S. 161 (1908), 178, 174–75. Ibid., 187–88, 191.

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were two farmers haggling over the price of a horse.”14 He endeavored to show that not simple class prejudice but a deeply rooted belief in an antiquated legal ideology explained the Court’s obtuseness. Perhaps the most remarkable feature of Pound’s essay was his assumption that the “fact” of unequal bargaining power was so obvious, an assumption almost uniformly repeated ever since.15 But scant evidence indicates that American workers were severely disadvantaged in the early twentieth-century labor market. They faced a competitive labor market, in which few employers enjoyed monopsony (single-buyer) power. The individual worker was free so long as employers competed with one another for labor, in the same way that an individual consumer is free of monopoly power so long as large producer firms compete among one another for customers. What Pound called the “common knowledge of mankind” of employer monopsony in 1908 seems manifestly preposterous.16 The United States had always suffered a labor shortage, making American wages higher than those in Europe. Even Samuel Gompers recognized that the idea that the poor were getting poorer was “quite absurd.”17 In the year that Adair was argued, more than 1.25 million immigrants came to the United States. The country absorbed more than twenty five million immigrants between the Civil War and World War One, yet real wages for unskilled labor rose 44 percent over these years. They rose 35 percent, and rose almost every year, from the end of the Depression of 1893 until the beginning of the First World War. Real wages of all workers rose more than 50 percent between 1860 and 1890, and rose by another third in the next twenty years.18

14 15

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Roscoe Pound, “Liberty of Contract,” Yale Law Journal 18 (1909), 454. William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998), 249. Even revisionist treatments, more sympathetic to the “laissez-faire” Court, repeat the unequal-bargaining power shibboleth. Charles W. McCurdy, “The Roots of Liberty of Contract Reconsidered: Major Premises in the Law of Employment, 1867–1937,” Supreme Court Historical Society Yearbook (1984), 20–33; John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890– 1920 (Westport, CT: Greenwood, 1978), 103, 215, 430; Michael J. Phillips, The Lochner Court, Myth, and Reality: Substantive Due Process from the 1890s to the 1930s (Westport, CT: Greenwood, 2001), 140–41. Pound, “Liberty of Contract,” 454; Richard Posner, “Some Economics of Labor Law,” University of Chicago Law Review 51 (1984), 991–92; Henry C. Simons, “Some Reflections on Syndicalism,” Journal of Political Economy 52 (1944), 1–2, 7; Morgan O. Reynolds, “The Myth of Labor’s Inequality of Bargaining Power,” Journal of Libertarian Studies 12 (1991), 173; Morgan O. Reynolds, Power and Privilege: Labor Unions in America (New York: Universe, 1984), 59; Herbert Hovenkamp, Enterprise and American Law, 1836–1937 (Cambridge, MA: Harvard University Press, 1991), 213. Edward C. Kirkland, Industry Comes of Age: Business, Labor, and Public Policy, 1860–97 (Chicago: Quadrangle, 1961), 402. Historical Statistics of the United States, ed. Susan B. Carter et al., 5 vols. (Cambridge: Cambridge University Press, 2006), I: 541, II: 257; Stanley Lebergott, The Americans: An Economic Record (New York: W. W. Norton, 1984), 380; Albert Rees, Real Wages in Manufacturing, 1890–1914 (Princeton: Princeton University Press, 1961), 120; Thomas C. Reeves, Twentieth-Century America: A Brief History (New York: Oxford University Press, 2000), 6.

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Of course, while the economic well-being of workers as a whole improved markedly, some individuals and groups of workers certainly lost ground, particularly as technological innovation made artisanal skills redundant. Indeed, skilled workers often organized unions to prevent such dislocation, especially by immigrants. As the political scientist and Bureau of Corporations official E. Dana Durand said of the effort to organize the anthracite coal miners, which led to a national labor conflict in 1902, “One of the beneficial effects of the coal strike should be to arouse public sentiment against the flood of low-class immigration that is constantly pouring in upon us. . .. The recent flood of lowgrade immigrants has been considered perhaps the greatest hindrance to the organization of labor.”19 Notably, the first great case of “academic freedom” concerned Progressive economist Edward A. Ross, fired by Stanford University for his opposition to Chinese immigration. Many progressive economists favored minimum-wage laws as a eugenic device, to weed out inferior racial and ethnic groups.20 Pound and other progressives failed to recognize that unions did not empower employees in conflicts with their employers, but aided some workers in their conflicts with other, competing workers. The emphasis of progressive intellectuals such as Pound on social and economic “facts” as opposed to legal principles has not worn well. What the progressives extolled as facts were often fundamental misunderstandings of the economic “reality” that they claimed to have discovered. This was especially true with regard to the “trust” question.21 In “Liberty of Contract,” Pound confused monopoly in product markets with monopsony in labor markets. He noted that usury laws limited liberty of contract on the assumption that borrower and lender “do not occupy toward one another the same relations of equality that parties do in contracting with each other in regard to the loan or sale of other kinds of property.” Speaking of a Pennsylvania case that overturned a labor-regulation law, Pound quipped that “It does not seem to have occurred to [the court] that the necessities of a miner or factory employee might impair his freedom of contract or put him at the mercy of his employer in the same way” that a necessitous borrower was at the mercy of a usurer.22 And it does not seem to have occurred to Pound that the analogy might be wholly inapt.23 And the Court could recognize when unequal bargaining power really might obtain. In 1898 it upheld a Utah law that limited miners and smelter workers to 19

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E. Dana Durand, “The Anthracite Coal Strike and Its Settlement,” Political Science Quarterly 18 (1903), 398, 406. James C. Mohr, “Academic Turmoil and Public Opinion: The Ross Case at Stanford,” Pacific Historical Review 39 (1970), 39–61; Thomas C. Leonard, “Origins of the Myth of Social Darwinism: The Ambiguous Legacy of Richard Hofstadter’s Social Darwinism in American Thought,” Journal of Economic Behavior and Organization 71 (2009), 47. Thomas K. McCraw, “Rethinking the Trust Question,” in Regulation in Perspective: Historical Essays, ed. McCraw (Cambridge, MA: Harvard University Press, 1981). Pound, “Liberty of Contract,” 473. A better analogy was that, given a competitive money market, usury laws ought to be relaxed or repealed, as indeed they came to be. For a similar analogy, see McCurdy, “Roots of Liberty of Contract,” 32.

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eight hours of daily labor. Justice Henry B. Brown, noting that “law is, to a certain extent, a progressive science,” recognized that industrial development had made new social regulation necessary. Such restrictions would differ from the period of the American founding, he noted, “as we were then almost purely an agricultural people,” as if anticipating Pound’s analogy about “haggling over the price of a horse.” He reaffirmed that the Fourteenth Amendment’s guarantee of due process set some limits on such regulation. “It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.” But a law regulating miner and smelter workers’ hours in Utah was a reasonable exercise of the police power. Not only did the law concern hazardous occupations, but it recognized that “the proprietors of these establishments and their operatives do not stand upon an equality . . . the proprietors lay down the rules and the laborers are practically constrained to obey them.”24 Utah was a remote, frontier state, where miners lacked information and mobility available to workers in other parts of the country.25 Moreover, the state supreme court pointed out that the mining companies had been granted the power of eminent domain.26 In other words, the Utah mines may have presented a genuine case of labor monopsony, as the Court also recognized when upholding state laws that required payment in cash rather than scrip in Appalachian “company towns.”27 State courts similarly recognized situations of unequal bargaining power.28 Ten years later, the same Court that decided Adair upheld Oregon’s law that limited women’s hours to eight per day. Analyses of Muller v. Oregon usually emphasize the “paternalistic sexism” behind it, in the Court’s statement that because “healthy mothers are essential to vigorous offspring, the physical wellbeing of women becomes an object of public interest and care in order to preserve the strength and vigor of the race.”29 This analysis suggests that the Court would sacrifice women’s individual rights for the benefit of society. But maternity was not the sole consideration. The decision also addressed the issue of women’s unequal bargaining power. Clearly the Court believed that the source of unequal bargaining power was natural and biological. The Court noted “that woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious.”

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Holden v. Hardy, 169 U.S. 366 (1898), 385, 392–93, 389, 397. Phillips, The Lochner Court, Myth and Reality, 139. Utah v. Holden, 14 Utah 71 (1896). Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901). The economic reality of Appalachian monopsony-exploitation is open to doubt. See Price Van Meter Fishback, Soft Coal, Hard Choices: The Economic Welfare of Bituminous Coal Miners, 1890–1930 (New York: Oxford University Press, 1992); Reynolds, Power and Privilege, 12–28. Melvin I. Urofsky, “State Courts and Protective Legislation During the Progressive Era: A Reevaluation,” Journal of American History 72 (1985), 66. Muller v. Oregon, 208 U.S. 412 (1908), 421. See Kermit Hall, ed., Major Problems in American Constitutional History, 2 vols. (Lexington, MA: D. C. Heath, 1992), II: 80–141.

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Legislation was thus appropriate “to secure a real equality of right.” Women differed from men, often depended on them, and this dependence limited their opportunities in the labor market. Employers could take advantage of the limited options that women had. Here, the Court recognized a case of labor monopsony.30 The Court could recognize unequal bargaining power, but did not regard it as the ordinary condition of the labor market. It acknowledged that other reasons might be behind legislative labor restrictions, and may have accepted more illegitimate ones than it struck down valid ones. Limiting the hours of women, for example, was an effective way to reduce competition for male workers. White male unions led the effort to reduce the supply of female labor, as well as that of immigrants and blacks. Female-labor laws principally limited the competition of immigrant women.31 Pound himself admitted that statutes voided by state courts “may have gone too far,” but concluded that “the hope for the future of labor legislation” was “bright.”32

alcohol Congress had greater success in developing a police power when it targeted matters that were widely condemned in Victorian America, such as gambling and prostitution. Most Americans rejected the laissez-faire, Social Darwinist idea that government had no business in moral regulation. Rather, Victorian Americans saw a reciprocal relationship between economic liberty and moral regulation.33 Justice Brewer, for example, said that majorities could settle “moral questions” such as gambling, prostitution, and polygamy. His test of constitutionality tended to be whether a policy fostered “moral selfgovernment.”34 Alcohol presented a profoundly divisive issue, creating decades 30

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Muller v. Oregon, 422; David P. Bryden, “Brandeis’ Facts,” Constitutional Commentary 1 (1994), 287. Roscoe Pound had concurred in a similar opinion while on the Nebraska Supreme Court – Wenham v. Nebraska, 65 NE 394 (1902). Not all agreed that women were more likely than men to accept hard employment bargains – Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), 616. Elisabeth M. Landes, “The Effect of Maximum-Hours Laws on the Employment of Women in 1920,” Journal of Political Economy 88 (1980), 476–94. Pound, “Liberty of Contract,” 482, 486. Lochner was the only other labor law that the Supreme Court voided before World War One. Another common progressive misperception was that the federal courts were less tolerant of government power than the state courts – Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 (Westport, CT: Greenwood, 1978), 167. Stanley Rothman and S. Robert Lichter, Roots of Radicalism: Jews, Christians and the Left (New Brunswick, NJ: Transaction, 1996), xxii; Michael Les Benedict, “Victorian Moralism and Civil Liberty in the Nineteenth-Century United States,” in The Constitution, Law, and American Life: Critical Aspects of the Nineteenth-Century Experience, ed. Donald G. Nieman (Athens: University of Georgia Press, 1992), 98. Joseph Gordon Hylton, “David Josiah Brewer: A Conservative Justice Reconsidered,” Journal of Supreme Court History (1994), 54; Hylton, “The Perils of Popularity: David Josiah Brewer and the Politics of Judicial Reputation,” Vanderbilt Law Review 62 (2009), 584–85.

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of political controversy that ultimately led to a constitutional amendment imposing national prohibition. Congressional targeting of oleomargarine posed the clearest case of interest-group or “class” legislation in this period. Other food and drug regulations displayed a combination of genuinely national, public interest and private interests being pursued. These regulations all posed serious challenges to the principle that the Constitution limited the federal government to delegated, enumerated powers. Alcohol, and the related issue of nativism, followed slavery as dominant issues in antebellum politics. Thus, Stephen Douglas likened his policy of leaving the slavery issue to the states to that of local-option prohibition. Connected as it was to immigration, temperance remained a prominent issue in the ethno-cultural-religious conflicts of the late nineteenth century. Anti-alcohol advocates also used the vocabulary and symbols of the antislavery crusade in their efforts. The more radical prohibitionists claimed that the Constitution, since it permitted wet states to contaminate dry ones, was a “covenant with death.” But the Civil War set back the prohibitionist movement. Thirteen states had adopted prohibition by 1860, and only five retained these statutes by the war’s end.35 Historians often depict the “laissez-faire” Supreme Court as having less regard for personal or non-economic freedom than for property rights in the late nineteenth century.36 But the Court maintained a rearguard action in defense of the right to drink, in decisions involving state interference in interstate commerce of alcohol. Early interpretations of due process in state and federal courts arose out of judicial suspicion of prohibition laws.37 Justice Brewer, as a circuit-court judge, had voted to overturn the Kansas prohibition law that the Supreme Court then grudgingly approved, and prohibitionist senators opposed his nomination to the Supreme Court.38 It is also notable that Justice Field’s argument for the application of the cruel-and-unusual-punishment principle to the states came in a case where a state sentenced a man to fifty-four years in prison for dram-dispensing.39 The Court’s most important decisions protected the right of individuals in dry states to import alcohol for personal use which, prohibitionists complained, turned railroad and express stations into “Supreme 35

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Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880–1920 (Chapel Hill: University of North Carolina Press, 1995), 9, 26, 20. John P. Roche, “Civil Liberty in the Age of Enterprise,” University of Chicago Law Review 31 (1963), 101–35; David M. Rabban, “The First Amendment in Its Forgotten Years,” Yale Law Journal 90 (1981), 516–95. In contrast, see John Braeman, Before the Civil Rights Revolution: The Old Court and Individual Rights (Westport, CT: Greenwood, 1988). Wynehamer v. People, 13 N.Y. 378 (1856); Mugler v. Kansas, 123 U.S. 623 (1887). The New York Court of appeals struck down a law that prohibited the serving of liquor in immigrantdominated dance halls later in the century – Janet S. Lindgren, “Beyond Cases: Reconsidering Judicial Review,” Wisconsin Law Review 3 (1983), 602. Hamm, Shaping the Eighteenth Amendment, 41; Hylton, “David Josiah Brewer,” 50; John P. Frank, “Supreme Court Justice Appointments: II,” Wisconsin Law Review (1941), 366. Brewer personally favored prohibition – Hylton, “The Perils of Popularity,” 578. O’Neil v. Vermont, 144 U.S. 323 (1892).

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Court saloons.”40 The Court threatened to “destroy all state regulation of the liquor traffic, probably the most important subject of its police powers,” a political scientist complained.41 A U.S. district attorney claimed that the Commerce Clause, “intended to be a harmonist among the states, has been made a weapon of offense by which liquor-producing states have compelled prohibition states to receive intoxicating liquors.”42 Nor did Congress assist dry states. The federal taxing power abetted an anti-prohibitionist judiciary. Federal taxation legitimated alcohol as an article of commerce. Since nearly a quarter of federal revenue came from excise taxes on alcohol, the federal government had no interest in promoting prohibition. Indeed, Internal Revenue officials often undermined state prohibition efforts.43 As in antitrust cases, states were free to exercise their police power to prohibit the possession or use of alcohol, but no state did so until Idaho in 1915.

oleo “Grant the doctrine that state laws may prescribe or prohibit certain drinks,” a contemporary political scientist observed, “and it is an easy step to interfere with or prohibit certain foods.”44 Oleo produced nearly as much political controversy as alcohol. The French chemist Hippolyte Mège-Mouries invented a butter substitute in the 1860s, all but chemically indistinguishable from butter, which came to be called “oleomargarine.”45 American dairy farmers clamored for the suppression of the new rival. They claimed that oleo was dangerous to health, or that it was colored yellow and fraudulently sold as butter. Several states prohibited its manufacture altogether. New York and Pennsylvania enacted statutes ingenuously entitled “for the protection of dairymen, and to prevent deception.” The New York Court of Appeals struck down the prohibition statute in 1885. While the state could certainly enact safeguards against fraud, it could not absolutely prohibit oleo, “to drive the substituted article from the market, and protect those engaged in the manufacture of dairy products, against the competition of cheaper substitutes.”46 But the U.S. Supreme Court upheld 40

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Ernst Freund, The Police Power and Constitutional Rights (Chicago: Callaghan, 1904), 78; Walter Thompson, Federal Centralization: A Study and Criticism of the Expanding Scope of Congressional Legislation (New York: Harcourt, 1923), 168–71; Hamm, Shaping the Eighteenth Amendment, 57, 71. Fred Perry Powers, “Recent Centralizing Tendencies in the Supreme Court,” Political Science Quarterly 5 (1890), 406–07. Winfred T. Denison, “States’ Rights and the Webb-Kenyon Liquor Law,” Columbia Law Review 14 (1914), 321. Hamm, Shaping the Eighteenth Amendment, 46, 104–06, 167. The Court upheld Idaho’s useprohibition law in Crane v. Campbell, 245 U.S. 304 (1917). Henry C. Bannard, “The Oleomargarine Law: A Study of Congressional Politics,” Political Science Quarterly 2 (1887), 545. On the mistaken belief that it contained margaric acid. Geoffrey P. Miller, “Public Choice at the Dawn of the Special Interest State: The Story of Butter and Margarine,” California Law Review 77 (1989), 101. People v. Marx, 99 N.Y. 377 (1885), 385.

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Pennsylvania’s oleo prohibition. Echoing Munn, Justice Harlan emphasized that “every possible presumption” would be given to the legislature in its exercise of the police power. If such laws were “unnecessarily oppressive,” the oppressed must resort to the polls, not the Court.47 Justice Field dissented, claiming that the Fourteenth Amendment protected the natural right “to seek and produce food, by which life can be preserved and enjoyed, in all ways not encroaching upon the equal rights of others.” He remarked that the legislature should have extended congratulations and reward, rather than prohibition, to the manufacturers of this salubrious foodstuff. He could imagine no “greater invasion of the rights of the citizen” than this prohibition.48 In 1886, Congress considered an excise tax on oleo. The hearings were “little more than a witch hunt,” in which oleo opponents claimed that it was manufactured from “dead dogs, mad dogs, and drowned sheep.” The bill’s proponents virtually admitted that it was a piece of “class legislation.”49 An Iowa representative noted that agrarian states had supported the tariff, though it benefited Eastern manufacturing states. “If the protectionists of the East stand loyally by the interests of the farmers . . . the law of reciprocity will not be forgotten by the representatives who now ask for assistance.”50 The dairy men preferred a tencent per pound tax to drive oleo out of the market, but Congress enacted a milder two-cent tax, and required manufacturers and sellers to purchase federal licenses and clearly package and label their product as oleo. The Nation commented that the act established the principle “that Congress possesses the power to pass an act discriminating in favor of one domestic industry as against another,” and was “a plain violation of the spirit of the Constitution.”51 President Cleveland reluctantly signed the bill. He noted that if he had been truly convinced that the revenue aspect was simply a pretext “to destroy . . . one industry of our people for the protection and benefit of another,” he would have vetoed it. Cleveland opined that “hardly a pound ever entered a poor man’s house under its real name and true character.” Many congressmen agreed that it was only sold fraudulently, but the bill probably increased fraud as sellers tried to avoid having to purchase federal licenses. Effective labeling had no impact on public consumption of oleo.52 The Supreme Court unanimously upheld the tax as akin to those on tobacco or alcohol, and this, like the alcohol excise tax, established oleo as a legitimate article of interstate commerce, preventing butter states from stopping 47

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Powell v. Pennsylvania, 127 U.S. 678 (1888), 684–86; Frank R. Strong, Substantive Due Process of Law: A Dichotomy of Sense and Nonsense (Durham: Carolina Academic Press, 1986), 87, 270. Powell v. Pennsylvania, 690, 698. Miller, “Public Choice,” 113, 124; “The Week,” The Nation, 3 Jun. 1886, p. 458. Bannard, “The Oleomargarine Law,” 551. “The Week,” The Nation, 10 Jun. 1886, p. 476. Cleveland to House of Representatives, 2 Aug. 1886, M&PP XI: 4992; Miller, “Public Choice,” 126; Ruth Dupré, “‘If It’s Yellow, It Must Be Butter’: Margarine Regulation in North America Since 1886,” Journal of Economic History 59 (1999), 355, 358; Edward Wiest, The Butter Industry in the United States: An Economic Study of Butter and Margarine (New York: AMS Press, 1968 [1916]), 259.

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imports from oleo states.53 The Court also struck down a New Hampshire law that required oleo to be colored pink as amounting to a prohibition.54 Dairy interests returned to Congress for further relief. In 1902, Congress adopted a prohibitive ten-cent tax on artificially colored oleo, and reduced the tax on uncolored or naturally colored oleo to one-quarter of a cent. The debate in Congress revealed the variegated interests in conflict. Both sides appealed to antitrust sentiment, dairy men railing against an “oleomargarine octopus” and oleo men against an emerging “creamery trust.”55 Missouri Democrat Edward Robb claimed that other interest groups had benefited from special legislation, and that now “the farmer” deserved protection. Representatives of non-dairy farm states noted that all of the ingredients of oleo were “farm” products. Southerners, especially, recognized the value of cottonseed oil in oleo manufacture. Others remarked that farmers were also consumers who benefited from the cheaper product. Urban representatives echoed consumer opposition from various labor organizations. Dairymen claimed that 90 percent of oleo was sold fraudulently as butter; oleo partisans claimed that 90 percent was not. Nebraska cattleman Ashton Shallenberger presented petitions complaining that oleo was creating “a nation of dyspeptics,” and that “the decline of pure butter products has also affected the matrimonial market.” Oleo produced old maids “because women are no longer a necessary adjunct to the farmer lads to help them create wealth, owing to the oleo-cotton-oil-soap-fat combine.” Oleo defenders countered that it was “health-promoting rather than health-impairing.” They pointed out that rancid butter was often processed or “renovated” and sold fraudulently as fresh butter, with little complaint from dairymen. Butter was in fact more dangerous to health, carrying tuberculosis, typhoid, scarlet fever, and diphtheria.56 Moreover, it was common knowledge that consumers preferred the deep-yellow butter that occurred naturally only in late spring, and that paler butter made in other seasons was colored to resemble “June butter.”57 As one political scientist observed, “Congress virtually put a premium on this sort of manipulation by omitting to provide against” coloring when perpetrated on butter.58 Observers then and since recognized that the oleo tax was devised to eliminate an economic competitor.59 Missouri Democrat William Cowherd despaired that his fellow congressmen believed that “the Constitution is an old-fashioned 53 54 55 56

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In re Kollock, 165 U.S. 526 (1897), 536; Schollenberger v. Pennsylvania, 171 U.S. 1 (1898). Collins v. New Hampshire, 171 U.S. 30 (1898). CR 35 (4 Feb. 1902), 1298, 1303. CR 35 (4 Feb. 1902), 1298, 1303, 1299; (5 Feb. 1902), 1351, 1303, 1308; (11 Feb. 1902), 1617; (10 Feb. 1902), 1550; (4 Feb. 1902), 1305; (11 Feb. 1902), 1595. Ibid. (10 Feb. 1902), 1551; “The Week,” The Nation, 10 Apr. 1902, p. 279; Wiest, The Butter Industry, 230. Bannard, “The Oleomargarine Law,” 549. Albert Shaw, “The American State and the American Man,” Contemporary Review 51 (1887), 701; Wiest, The Butter Industry, 5; J. K. Mallory, Jr., “The Oleomargarine Controversy,” Virginia Law Review 33 (1947), 631–41; Dupré, “‘If It’s Yellow’”; Miller, “Public Choice.”

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instrument that has no place in our discussions on this floor.” Representative Samuel Lanham denounced the bill as a perversion of the taxing power, a piece of class legislation. But Iowa Republican William Hepburn was confident that Congress could do anything under the guise of the taxing power. He noted that they could expect the Supreme Court to allow Congress “to use the taxing power for purposes perhaps not strictly for revenue.” The power to regulate interstate commerce would serve the same purpose, he claimed. “You all agree to its use in the power of construction when it serves your purpose.” Representative Amos Allen was not so sure, suggesting that the Court would look behind the taxation façade, into the illegitimate substance of the act, and strike it down. Representative John W. Gaines lamented the decline of constitutional fidelity. “It is proposed in this bill to forget the Constitution.” This is not taxation for a public purpose, but an act “to perpetuate the butter trust.” But Maryland Representative William H. Jackson had no such qualms. He replied, “This government, sir, is all powerful; this government is the people, and the people can do anything with their government that they desire. . .. This is an age of progress.”60 The Court upheld the new oleo tax. Justice White observed that Congress’s power to enact such an excise “is so completely established as to require only statement.” The Court had unanimously upheld the 1886 oleo tax as a revenue measure, even though “it may operate in so doing to prevent deception in the sale of oleomargarine.” But few precedents concerned the use of a federal excise to eliminate a product from the market. The clearest parallel was the elimination of state banknotes during the Civil War, which White admitted was done under the federal currency power. He further admitted that the Constitution established limits to the taxing power. A tax “so extreme as to be beyond the principles which we have previously stated,” not for revenue “but solely for the purpose of destroying rights which could not be rightfully destroyed consistently with the principles of freedom and justice upon which the Constitution rests,” would be unconstitutional.61 Chief Justice Fuller (although he had written the opinion upholding the 1886 tax), Justice Peckham, and Justice Brown dissented, but without opinion. Perhaps the oleo tax case did not seem all that severe. As a Senator, Edward D. White had objected to the proposal for a prohibitive oleo tax, but Justice White now accepted the newly reduced rate.62 The consumer interest ultimately prevailed, for the law had little impact on the oleo industry. Naturally colored margarine was not taxed at the artificial-color rate, and it was easy for consumers to color their untreated oleo.63 Though the dairy industry failed, it did establish taxation as an important basis for the emerging federal police power. It was applied to phosphorous matches, opium, and other narcotics.64

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CR 35 (4 Feb. 1902), 1305, 1310; (5 Feb. 1902), 1350; (11 Feb. 1902), 1608, 1611. McCray v. United States, 195 U.S. 27 (1904), 50, 58, 64. Robert E. Cushman, “The National Police Power Under the Taxing Clause of the Constitution,” Minnesota Law Review 4 (1920), 277. Wiest, The Butter Industry, 259; Dupré, “‘If It’s Yellow,’” 359. Cushman, “The National Police Power Under the Taxing Clause,” 266.

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gambling Congress’s power over the mails provided another potential basis for the police power. Before the Civil War, a great debate surrounded the Southern demand that abolitionist publications be purged from the mails. Sabbatarians also demanded an end to mail delivery on Sundays. After the war, Anthony Comstock led the effort to combat postal abetting of immorality. Congress prohibited the sending of obscene material through the mails in 1865, and in 1873 extended the act to newspapers.65 Specifically, it banned the mailing of any “obscene, lewd, or lascivious book, pamphlet, picture, paper, print or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or abortion.”66 The Supreme Court unanimously upheld this act in 1877, provided that Fourth Amendment personal privacy was preserved.67 Comstock then turned his attention to gambling. Lotteries were quite common in the early nineteenth century, but public power had turned against them by the end of the century.68 New Hampshire Representative Orren C. Moore observed that early nineteenth-century government toleration and even promotion of lotteries “was largely due to the French code of morals, based on the toleration of vice rather than on its suppression.”69 Now, the Librarian of Congress noted, the public regarded lotteries “as among the most dangerous and prolific sources of human misery.”70 An English observer noted that in the American states, “Lotteries of every description, including ‘raffles’ at church fairs and the like are prohibited under frightful penalties.” It was a crime “even to publish an account of a lottery” in Minnesota.71 Louisiana maintained the only legal lottery in the country in 1890. First Amendment concerns delayed Congressional action against the use of the mails for lottery advertisements.72 A House committee reported in 1888 that a bill to exclude lottery tickets from the

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Ibid. Robert E. Cushman, “The National Police Power Under the Postal Clause of the Constitution,” Minnesota Law Review 4 (1920), 402–20; Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920 (Chapel Hill: University of North Carolina Press, 2002), 48; John L. Thomas, Law of Lotteries, Frauds and Obscenity in the Mails (St. Louis: F. H. Thomas, 1903), 271. 17 Stat. 598 (1873), sec. 2. Ex parte Jackson, 96 U.S. 727 (1878). G. Robert Blakey and Harold A. Kurland, “The Development of the Federal Law of Gambling,” Cornell Law Review 63 (1978), 927. CR (16 Aug. 1890), 8705. New Hampshire became the first state to re-introduce a lottery, in 1964. A. R. Spofford, “Lotteries in American History,” Annual Report of the American Historical Association for 1892 (Washington: G.P.O.,1893), 195. Shaw, “The American State,” 707. For similar statutes, also punishing advertising for abortifacients, cures for venereal diseases, or accounts of vicious crimes or criminal executions, see William G. Hale, The Law of the Press (St. Paul, MN: West, 1923), 292–93, 307–09, 345–55, 359–67. Thomas, Law of Lotteries, Frauds and Obscenity in the Mails, 223.

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mails would be unconstitutional, but President Harrison called for such a prohibition in 1890.73 When the Republicans regained effective control of the federal government for the first time since the end of Reconstruction, the bill was reported favorably. This was the same Congress that enacted Iowa Senator James F. Wilson’s bill to protect dry states from wet-state imports. Notably, Southern congressmen warmed to such exercises of federal power, though they continued to recognize the danger in Congress’s consideration of the “Force bill” (1833) to protect black voting rights.74 Debate in Congress was brief, since the Supreme Court had accepted the Comstock Act on obscene materials. Future President William McKinley declared that the Act “will give a death-blow to the vicious system of gambling which has been so prevalent for years in some of the states; that system which has robbed the poor of untold millions, and enriched the lottery corporations of Louisiana and other states – corporations that have grown so rich that they dominated state governments, controlled legislation, stifled the press, and debauched private morals in the most shocking manner.”75 The Supreme Court quickly and unanimously upheld the lottery-mail prohibition.76 The Louisiana Lottery Company lost its franchise, but re-established itself in Honduras and operated via a Florida company, due to a loophole in that state’s anti-lottery law. Anti-gambling forces then moved to close off all interstate shipment of lottery tickets.77 The bill received almost no debate in Congress, and nobody noticed its constitutional implications. Widespread public opprobrium of gambling made legislators chary of raising constitutional scruples with regard to an interest that was considered politically corrupting. Moreover, the Congress of 1895 was preoccupied with the tariff and money questions. The tickets’ foreign source, and the impression that the bill merely extended the postal-prohibition, may also have tamped down constitutional concerns.78 In 1902, the Court accepted this prohibition, after three oral arguments, in a closely divided, 5–4 decision. C. F. Champion and others were convicted of transporting lottery tickets from Texas to California, and appealed their conviction to the Supreme Court. William D. Guthrie, who had helped defeat the

73

74 75

76 77

78

Message to Congress, 29 Jul. 1890, M&PP XII: 5515; CR (16 Aug. 1890), 8703; U.S. Department of Justice, The Development of the Law of Gambling, 1776–1976 (Washington: G.P.O., 1977), 513. Foster, Moral Reconstruction, 119. “The Fifty-First Congress,” in Speeches and Addresses of William McKinley (New York: D. Appleton and Co., 1893), 465. In re Rapier, 143 U.S. 110 (1892). 28 Stat. 963 (1895). Two years later, Congress extended the mail-obscenity prohibition to all interstate traffic in obscene materials (29 Stat. 512 [1897]). A federal district court upheld its constitutionality (Popper v. United States, 98 F. 423 [1897]), but the Supreme Court did not review it. Herbert F. Margulies, “Pioneering the Federal Police Power: Champion v. Ames and the AntiLottery Act of 1895,” Journal of Southern Legal History 4 (1995), 45–60; Thompson, Federal Centralization, 108.

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1894 income tax, argued that Congress could not exercise a police power that was reserved to the states. Moreover, he maintained that lottery tickets were not articles of commerce. He likened them to insurance contracts, which the Court had defined as outside of the commerce power of Congress. Guthrie concluded, “However desirable – or however necessary – federal power in any case may now seem to be, if it was not expressly conferred upon Congress, it cannot be read into the Constitution by legislative declaration or judicial decree. The Constitution ‘neither changes with time, nor does it in theory bend to the force of circumstances.’ It is today what it was when Hamilton, Madison, Jay and Marshall wrote and argued in its support.”79 Justice Harlan’s majority opinion adopted the position of the counsel for the United States, James M. Beck, who would later become a prominent opponent of loose constitutional construction of federal power. Harlan accepted that lottery tickets were articles of commerce, and equated Congress’s power to prohibit interstate shipment to its power to prohibit mail carriage and international commerce. Though the plaintiffs had not raised the issue, Harlan surmised that the only relevant limitation on Congress’s power might be the due process clause of the Fifth Amendment, which the Court had recognized with regard to insurance in Allgeyer. But nobody had the liberty “to introduce into commerce among the states an element that will be confessedly injurious to the public morals.” The nearly universal condemnation of gambling allowed Harlan to echo Fuller addressing the Pullman strike. Harlan continued, “We should hesitate long before adjudging that an evil of such appalling character, carried on through interstate commerce, cannot be met and crushed by the only power competent to that end.” But Harlan admitted that the interstate commerce power “although plenary, cannot be deemed arbitrary.” The anti-lottery act did not cross this plenary/arbitrary line, but the Court was establishing no hard-and-fast rule. “We decide nothing more in the present case than that lottery tickets are subjects of traffic,” and “that the carriage of such tickets by independent carriers from one state to another is therefore interstate commerce,” over which Congress had plenary power.80 Chief Justice Fuller wrote a dissent for himself and Justices Peckham, Brewer, and Shiras. He objected that Congress had exceeded its enumerated powers and usurped the state police power. Fuller characterized the majority decision as “a long step in the direction of wiping out all traces of state lines, and the creation of a centralized government.” It threatened the nature of the United States as a federal republic under a fixed, written constitution. “In countries whose fundamental law is flexible it may be that the homely maxim ‘to ease the shoe where it pinches’ may be applied, but under the Constitution of the United States it cannot be availed of to justify action by Congress or by the courts.”81 79

80

81

Champion v. Ames, 188 U.S. 321 (1903); U.S. Department of Justice, Development of the Law of Gambling, 521. Champion v. Ames, 352–54, 356–58, 362–64; Robert E. Cushman, “The National Police Power Under the Commerce Clause of the Constitution,” Minnesota Law Review 3 (1919), 387. Champion v. Ames, 371–72.

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While alcohol and oleomargarine provoked intense cultural and economic division, lotteries were so uniformly condemned that the act raised little public concern. One legal publisher, alarmed by the decision, observed that the nearuniversal animus against lotteries “will prevent any popular outcry against this newly asserted power of the general government; the end will be deemed to justify the means.”82 It would probably have been easy to amend the Constitution to prohibit all lottery activity had it been necessary. Though Harlan emphasized the limited scope of his decision, the dissenters recognized what an important precedent had been set, and later commentators confirmed that impression. Paul Fuller, the first Dean of the Fordham Law School, called the decision a conclusive answer to the question . . . “‘Is there a Federal Police Power?’ Indeed it is an answer to a further question suggested by the first. ‘Does such Federal Police Power, if it exists, trench upon and extinguish the exercise of the State Police Power which the States had supposedly reserved to themselves?’ and this it also answers in the affirmative.”83 A later commentator saw the decision as evidence of “the elasticity of the Constitution,” since it was “due solely to a change in national morality.”84 More recent histories emphasize the significance of this case.85 And it was notable that the decisive vote in McCray was cast by Oliver Wendell Holmes, Jr., the first justice appointed in the twentieth century.

82

83 84

85

William A. Sutherland, “Is Congress a Conservator of the Public Morals?” American Law Review 38 (1904), 207. Paul Fuller, “Is There a Federal Police Power?” Columbia Law Review 4 (1904), 584. Horace H. Hagan, “The Elasticity of the Federal Constitution,” Virginia Law Review 20 (1934), 394. Semonche, Charting the Future, 157.

7 Rooseveltian Progressivism

the holmes appointment Theodore Roosevelt’s presidency in 1901 significantly advanced progressivism. Roosevelt’s personal enthusiasm for active government, and particularly for war, could only clash with a constitution premised on the idea of limited government and especially vulnerable to war. Even his admiring biographers note that “in Roosevelt’s many-sided character perhaps the dominant urge was his desire for power,” and discern “a certain fondness for war.”1 He wanted his first Supreme Court appointment to preserve the fruits of the Spanish-American War, whose conquests and cessions raised fundamental questions of republican constitutionalism. The Court split evenly on the question of whether all of the guarantees of the Constitution extended to conquered territory – in the popular phrasing, whether “the Constitution follows the flag.” The “laissez-faire” justices sharply criticized imperialist policy. Fuller, Harlan, Brewer, and Peckham held that the Constitution applied anywhere the United States claimed sovereignty.2 Justice Brewer publicly chastised Roosevelt’s foreign policy. The Founders did not free us from British tyranny and then claim “the power to hold other territory in like colonial subjection.” Notwithstanding his reverence for the Founders, Brewer believed that Roosevelt’s presidency indicated that the Constitution should limit the executive to one term.3 1

2

3

George L. Mowry, Theodore Roosevelt and the Progressive Era (New York: Hill & Wang, 1960 [1946]), 15, 312. Alfred H. Kelly and Winfred A. Harbison, The American Constitution: Its Origins and Development, 4th ed. (New York: W. W. Norton, 1970), 582; Yosal Rogat, “Mr. Justice Holmes: A Dissenting Opinion,” Stanford Law Review 15 (1962), 34; Linda Przybyszewski, The Republic According to John Marshall Harlan (Chapel Hill: University of North Carolina Press, 1999), 144. David J. Brewer, “Two Periods in the History of the Supreme Court,” Report of the Eighteenth Annual Meeting of the Virginia State Bar Association (Richmond: Richmond Press, 1906), 145; J. Gordon Hylton, “The Perils of Popularity: David Josiah Brewer and the Politics of Judicial Reputation,” Vanderbilt Law Review 62 (2009), 574; “Justice Brewer Raps Roosevelt,” New York Times, 21 Nov. 1907, p. 1.

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Roosevelt told Henry Cabot Lodge that a bare majority of the Court supported administration policy and “rendered a great service to mankind and to this nation. The minority – a minority so large as to lack but one vote of being a majority – have stood for such reactionary folly as would have hampered wellnigh hopelessly this people in doing efficient and honorable work for the national welfare, and for the welfare of the islands themselves.”4 He told Henry L. Stimson that Peckham, Fuller, and Brewer had been “a menace to the welfare of the nation” and “ought not to have been left there a day.”5 Roosevelt also asserted that “the judges of the Supreme Court of the land must be not only great jurists, but they must be great constructive statesmen.”6 Roosevelt recognized a kindred spirit in Holmes’s 1895 Memorial Day speech, “The Soldier’s Faith,” which expressed his existential view that although there were no transcendent causes to fight for, men needed to act as if such causes existed. Holmes lamented that since “the aspirations of the world are those of commerce,” now “war is out of fashion.” He regarded war as the inescapable lot of man. “The struggle for life is the order of the world,” he said, in the Darwinian idiom of the day. “I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has little notion, under tactics of which he does not see the use.” Holmes had fought for a cause, but men would fight just as ardently for the sake of fighting. “Therefore I rejoice at every dangerous sport which I see pursued. The students at Heidelberg, with their sword-slashed faces, inspire me with sincere respect. I gaze with delight upon our polo players. If once in a while in our rough riding a neck is broken, I regard it, not as a waste, but as a price well paid for the breeding of a race fit for headship and command.”7 Roosevelt believed that such rough-and-ready eugenic views indicated that Holmes would be safe on the question of imperialism.8 Roosevelt also assumed that Holmes would favor organized labor more than the reactionaries on the Court. He told Lodge, “The ablest lawyers and greatest

4 5 6

7

8

Theodore Roosevelt to Henry Cabot Lodge, Jr., 10 Jul. 1902, LTR III: 289. Roosevelt to Henry L. Stimson, 5 Feb. 1912, ibid., VII: 495. “At the Banquet to Justice Harlan,” 9 Dec. 1902, in Presidential Addresses and State Papers (New York: Review of Reviews, 1910), 221. Roosevelt could praise Harlan for being a judicial statesman, though he disliked the statesman’s policies. Brewer also criticized Roosevelt’s “statesman” criterion of judicial selection – “Two Periods in the History of the Supreme Court,” 147. “The Soldier’s Faith,” 30 May 1895, in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr., ed. Richard A. Posner (Chicago: University of Chicago Press, 1992), 88–92. Holmes expressed a similar view in “The Natural Law,” Harvard Law Review 32 (1918), 40–44. The Court ultimately held that some fundamental, but not all, constitutional guarantees extended to the new possessions. As Secretary of War Elihu Root put it, “The Constitution follows the flag, but it doesn’t quite catch up to it.”

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judges are men whose past has naturally brought them into close contact with the wealthiest and most powerful clients, and I am glad when I can find a judge who has been able to preserve his aloofness of mind so as to keep his broad humanity of feeling and his sympathy for the class from which he has not drawn his clients.”9 Roosevelt derived this impression from Holmes’s dissenting opinion in an 1896 Massachusetts case in which he opposed the issue of an injunction in a labor dispute. But Roosevelt shared the illusion of many progressives who “mistook [Holmes’] reverence for struggle with sympathy for progressive causes,” a biographer notes. “Holmes’ opinions in labor cases, however, revealed no sympathy whatever for the laboring class. They revealed only his fondness for battle. Although, as he saw it, unions could accomplish nothing for workers as a group, that was no reason not to have a good fight.”10 In a celebrated essay two years before this decision, Holmes suggested that disputes between employers and employees entailed simple political power or the balancing of interests. And, he said, “those interests are fields of battle.”11 This view has led one scholar to call it “the beginning of modernism in American legal thought.”12 At the time of his assassination, President McKinley had decided to appoint Alfred Hemenway to replace the ailing Justice Horace Gray. When Gray resigned in 1902, Roosevelt dropped Hemenway and appointed Holmes, the first Supreme Court justice of the new century.13

the anthracite strike Labor conflict provided an opportunity for Roosevelt to exercise power in his first term. Preoccupied with foreign affairs, he left domestic initiatives to Congress, probably as part of a modus vivendi with Senate Republican leader Nelson W. Aldrich.14 But the strike of the anthracite coal miners in 1902 forced Roosevelt to take action. In Roosevelt’s view, executive power was plenary, limited only by specific constitutional exceptions. Whereas Article I states that “All legislative powers herein granted” belong to Congress, and follows with an enumeration of those powers, Article II simply states that “The executive power shall be vested in a President of the United States.” In Alexander Hamilton’s theory, executive action was assumed valid unless the Constitution prohibited it. He wrote in the 1793 “Pacificus” letters “that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which 9 10

11 12

13

14

Roosevelt to Lodge, 10 Jul. 1902. Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 67. Oliver Wendell Holmes, Jr., “Privilege, Malice, and Intent,” Harvard Law Review 8 (1894), 7. Morton J. Horwitz, The Transformation of American Law, 1894–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 131. Richard H. Wagner, “A Falling Out: The Relationship between Oliver Wendell Holmes and Theodore Roosevelt,” Journal of Supreme Court History 27 (2002), 116–18. Mowry, Theodore Roosevelt and the Progressive Era, 17.

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are expressed in the instrument.”15 Roosevelt agreed that the president was the “steward of the people,” whose duty was “to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or the laws.”16 This theory worked best in foreign policy, where a certain degree of discretion was required – the energy, secrecy, and dispatch that Publius advocated in the Federalist.17 Roosevelt’s effort to apply the plenary executive power doctrine to a domestic labor dispute raised eyebrows. He extravagantly depicted the coal strike as the equivalent of the secession crisis. But, unlike the Pullman crisis, the coal strike implicated no industry clearly involving interstate commerce, nor did it obstruct the federal military or mails. Roosevelt appeared to be joining a public panic about the coal supply. Though his Attorney General, Philander Knox, advised him that there was no constitutional basis for intervention, Roosevelt insisted that he would not act “on the Buchanan principle of striving to find some constitutional reason for inaction.” He considered the coal supply to be as important as the national transportation system. “There would be no warrant in interfering under similar conditions in a strike of iron workers,” he observed. “Iron is not a necessity.” But even if Roosevelt had been inclined to use force to break the strike, it would not have restored coal production. Unlike the Illinois authorities in 1894, the Pennsylvania government provided plenty of support for the mine owners, mobilizing the entire state national guard to maintain order. While the striking miners did resort to violence and intimidation of “scabs,” more effective was the Pennsylvania law requiring every miner to have a license, which could only be obtained after two years of experience and an exam. This prevented the owners from attempting to use replacements to break the strike.18 The president attempted to bring the owners and United Mine Workers together in October 1902, but told Mark Hanna that the owners “insulted me for not preserving order (and they evidently ignored such a trifling detail as the U.S. Constitution).”19 The recalcitrance of both sides exhausted the president, who began to chafe under constitutional restrictions. He broached the idea of using the Army to take over the mines and resume production. “I should act just

15

16 17

18

19

The Basic Ideas of Alexander Hamilton, ed. Richard B. Morris (New York: Pocket Library, 1957), 168. Theodore Roosevelt, An Autobiography (New York: Scribner’s, 1920), 357. Will Morrisey, “Theodore Roosevelt on Self-Government and the Administrative State,” in The Progressive Revolution in Politics and Political Science, ed. John Marini and Ken Masugi (Lanham, MD: Rowman & Littlefield, 2005), 57–59. Robert J. Cornell, The Anthracite Coal Strike of 1902 (Washington: Catholic University of America Press, 1957), 177, 207, 181, 192, 169; Robert H. Wiebe, “The Anthracite Coal Strike of 1902: A Record of Confusion,” Mississippi Valley Historical Review 48 (1961), 243–44, 251; Jonathan Grossman, “The Coal Strike of 1902 – Turning Point in U.S. Policy,” Monthly Labor Review, Oct. 1975, p. 22; Peter Zavodnyik, The Rise of the Federal Colossus: The Growth of Federal Power from Lincoln to F.D.R. (Santa Barbara, CA: Praeger, 2011), 264. Roosevelt to Marcus A. Hanna, 3 Oct. 1902, LTR III: 338.

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as if we were in a state of war,” he claimed.20 He understood that such action “would form an evil precedent, and that it was one which I should take most reluctantly.”21 House Republican whip James E. Watson objected on constitutional grounds, but Roosevelt responded that “The Constitution was made for the people, and not the people for the Constitution.”22 Watson claimed that when he asked “what do you expect to do with the Constitution of the United States which provides for property rights and regards them as sacred? [Roosevelt] literally shouted: ‘To hell with the Constitution when the people want coal!’”23 Ultimately the owners agreed to abide by the decision of a presidentially appointed mediation commission. Though some congressmen objected that the commission was “without legal warrant,” Congress agreed to appropriate funds for it.24

pure food Roosevelt remained quiescent on the domestic front, careful not to antagonize the conservative leaders of his party, until after his own election in 1904. Though many regarded his dramatic confrontation with J. P. Morgan in his prosecution of the Northern Securities holding company as the sign of an energetic antitrust policy, Roosevelt was actually quite lax in antitrust enforcement. He took a more active and more progressive role in his second term. The Hepburn Act of 1906 added to the power of the Interstate Commerce Commission. Particularly notable was his involvement in the Meat Inspection and Pure Food and Drugs Acts of 1906. The issue also had something of a foreign-policy origin, beginning with Congressional regulation of food exports so that American producers did not lose foreign markets due to tainted goods. The Spanish-American War produced the story that the beef trust had supplied the Army with “embalmed beef.” This was altogether false, a case in which the military was attempting to find a scapegoat for its own incompetence. But Roosevelt himself claimed to have been nauseated by the tainted beef, and Commanding General Nelson Miles was able to indulge his grudge against the meatpackers for the unpleasant duty his soldiers had to perform in Chicago during the Pullman Strike.25

20 21 22 23

24 25

Cornell, The Anthracite Coal Strike, 211; Roosevelt, An Autobiography, 465. Roosevelt to Winthrop Murray Crane, 22 Oct. 1902, LTR III: 362. Cornell, The Anthracite Coal Strike, 214. James E. Watson, As I Knew Them: Memoirs of James E. Watson (New York: Bobbs-Merrill, 1936), 63–64. Cornell, The Anthracite Coal Strike, 238. Mowry, Theodore Roosevelt and the Progressive Era, 22; Russell F. Weigley, History of the United States Army, enlarged ed. (Bloomington: Indiana University Press, 1984), 309; James Harvey Young, Pure Food: Securing the Federal Food and Drugs Act of 1906 (Princeton: Princeton University Press, 1989), 136; Louise Carroll Wade, “Hell Hath no Fury Like a General Scorned: Nelson A. Miles, the Pullman Strike, and the Beef Scandal of 1898,” Illinois Historical Journal 79 (1986).

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Historians have shown that a great deal of progressive legislation that appeared to protect “the people” from “the interests” was in fact supported by “the interests” themselves.26 Much of the pure-food agitation arose from attempts to eliminate competition from food substitutes, as in the butter-oleo conflict.27 Sugar producers condemned glucose, an artificial sweetener developed in Napoleonic France. Straight whiskey distillers wanted relief from cheaper blended whiskies. Cream-of-tartar producers sought to demonize acid-based or alum baking powders.28 The Royal Baking Company, for example, “denounced alum as a dangerous drug, pictured phosphate as being made from old bones covered with vitriol, and appealed to mothers to protect their families’ health by using ‘pure cream of tartar baking powder,’” and “falsely reported that an entire Pennsylvania family had died from eating bread made with a competitor’s baking powder.”29 The balance of these various interests, along with those who doubted the public purpose or constitutionality of federal pure-food legislation, stymied Congressional efforts.30 Muckraking journalists helped to keep the issue in the public mind. The most prominent of these was Upton Sinclair’s novel, The Jungle. Although Sinclair’s goal was to call attention to the exploitative labor conditions in the meatpacking industry, the public focused on its gruesome details of adulterated meat. Roosevelt took an active interest in getting a meat-inspection act passed; he adroitly used the book’s sensationalism to overcome constitutional objections in Congress and construct a national police power.31 When a Department of Agriculture inspection committee reported that Sinclair’s account was largely baseless, the president sent two “secret” investigators of his own. Probably because they had never seen a slaughterhouse before, these investigators largely affirmed Sinclair’s horrific account, and Roosevelt used the threat of its publication to get the packers and their congressional allies to come to terms.32 Congress hammered out a compromise bill as to who would pay for the inspections, the dating of canned meat, the civil-service status of the inspectors, and 26

27

28 29 30

31

32

Ellis W. Hawley, “The Discovery and Study of a ‘Corporate Liberalism,’” Business History Review 52 (1978), 309–20; Gabriel Kolko, The Triumph of Conservatism: A Reinterpretation of American History, 1900–16 (New York: Free Press, 1963). Donna J. Wood, “The Strategic Use of Public Policy: Business Support for the 1906 Food and Drugs Act,” Business History Review 59 (1985); Marc T. Law and Gary D. Libecap, “The Determinants of Progressive Era Reform: The Pure Food and Drugs Act of 1906,” in Corruption and Reform: Lessons from America’s Economic History, ed. Edward L. Glaeser and Claudia Goldin (Chicago: National Bureau of Economic Research, 2006), 319–42. Young, Pure Food, 66, 165. Wood, “Strategic Use of Public Policy,” 425. Thomas A. Bailey, “Congressional Opposition to Pure Food Legislation, 1879–1906,” American Journal of Sociology 36 (1930), 52–64. John Braeman, “The Square Deal in Action: A Case Study in the Growth of the ‘National Police Power,’” in Change and Continuity in Twentieth-Century America, ed. Braeman et al. (Columbus: Ohio State University Press, 1964), 43. Young, Pure Food, 232–41; Kolko, Triumph of Conservatism, 105. Roosevelt concluded that “three-fourths of the things [Sinclair] said were absolute falsehoods” – Young, Pure Food, 251.

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judicial review, and passed a Meat Inspection and Pure Food and Drugs Act on the last day of June 1906. Senator Albert Beveridge, an Indiana Republican and leading progressive proponent of the act, hailed it as “the most pronounced extension of federal power in every direction ever enacted.”33 By the time these acts reached the Supreme Court, all of the justices with scruples about a federal police-power – Fuller, Peckham, Brewer, Brown (in the oleo-tax case), and Shiras – had retired or died. The Court unanimously upheld the Pure Food and Drugs Act in 1911. Roosevelt – and even more so Taft – had made the Supreme Court more progressive.34 Justice McKenna emphasized that the inherently harmful nature of the prohibited products obscured the policepower boundary. “We are dealing, it must be remembered, with illicit articles . . . outlaws of commerce,” he called them. McKenna highlighted the genuine public or consumer-welfare impetus and benefits from these Acts, but overlooked those that betrayed special-interest or “class legislation.”35

the mann act In the pure food campaign, muckraking hysteria augmented elements of public and private interest. In the next significant step in the development of a federal police power, the Mann “White Slave” Act, hysteria provided the preponderant element, with the new motion-picture industry adding to print-media sensationalism. Though the United States had ratified a multinational treaty to stamp out international trafficking in prostitutes, the principal impetus came from domestic sources. Anthony Comstock and the Christian lobby organized against gambling, but they were not active in the anti-prostitution cause.36 Rather, activists emphasized “commercialized vice.”37 The press and federal officials, particularly U.S. Attorney Edwin Sims in Chicago, claimed that a vast “white slave trust” stalked the country, when in fact there was little coerced prostitution at all.38 President Taft told Congress in 1909, that “I believe it to be constitutional to forbid, under penalty, the transportation of persons for purposes of prostitution across national and state lines.”39 The bill raised constitutional 33 34

35

36

37 38

39

Braeman, “Square Deal in Action,” 57. Jonathan Lurie, William Howard Taft: The Travails of a Progressive Conservative (Cambridge: Cambridge University Press, 2012), 120; Victoria F. Nourse, “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights,” California Law Review 97 (2009), 784. Hipolite Egg Co. v. United States, 220 U.S. 45 (1911), 57–58; Wood, “Strategic Use of Public Policy,” 432. Mara L. Keire, “The Vice Trust: A Reinterpretation of the White Slavery Scare in the United States, 1907–17,” Journal of Social History 35 (2001), 5–41; Foster, Moral Reconstruction, 160, Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (New York: Free Press, 2003), 256. Roy Lubove, “The Progressives and the Prostitute,” Historian 24 (1962), 310. David J. Langum, Crossing Over the Line: Legislating Morality and the Mann Act (Chicago: University of Chicago Press, 1994), 33–35. “First Inaugural Message,” 7 Dec. 1909, M&PP XVII: 7438.

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disputes in the House. Representative Charles Bartlett of Georgia objected to Congress’s effort to usurp the police power of the states, and noted that “the fact that we have had an agreement with foreign nations” did not give it any additional power. “The treaty-making power can no more make a treaty the law of the land in violation of the Constitution” than can the law-making power. Nor did the Court’s decision in the lottery case persuade him. “That is an unfortunate decision,” he concluded, insisting that the Court had no monopoly on constitutional interpretation. Representative William Cox of Indiana had doubts as to the bill’s constitutionality, but “would unhesitatingly resolve that doubt in favor of its constitutionality on account of the enormity of the crime sought to be stopped and the evil intended to be remedied . . . Who can be hurt by its provisions? None but the guilty.” The bill’s sponsor, James R. Mann, claimed that the white-slave traffic, “while not so extensive, is much more horrible than any black-slave traffic ever was.” Widespread revulsion toward gambling had silenced constitutional scruples a decade ago; now the universal abhorrence of prostitution had a similar impact. New York Representative William Sulzer added, “I have no sympathy with the quibbling in regard to the constitutionality of the provisions of this bill. In this frightful matter I shall not allow technicalities to cloud my sense of immediate duty. The courts must take the responsibility for its constitutionality.”40 President Taft signed the Mann Act in June 1910. The Mann Act punished “any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for . . . any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.”41 The phrase “any other immoral purpose” appeared to include more than large-scale commercialized or coercive prostitution. Almost immediately, the government applied it to consenting fornicators and adulterers, absent any coercion or commercial exchange.42 The Act also abetted blackmailers. The Supreme Court unanimously upheld the Act against constitutional challenge in 1913. What would later be called a constitutional “right to travel,” the Court dismissed as confusing “a right exercised in morality to sustain a right to be exercised in immorality.” Justice McKenna admitted that “our dual form of government has its perplexities,” but concluded that “surely if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls.” In acting against these evils, Congress “may adopt not only means necessary but convenient.”43 The Hoke case involved, if not coercive “white slavery,” at least commercial prostitution. The Court subsequently sustained prosecutions of a non-commercial 40 41 42 43

CR 45 (11 Jan. 1910), 520–24, 547–549. 36 Stat. 825 (1910), sec. 2. Langum, Crossing Over the Line, 48, 64. Hoke v. U.S., 227 U.S. 308 (1913), 321–23.

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nature. Shortly after Woodrow Wilson took office, Drew Caminetti, the son of Wilson’s immigration commissioner, was prosecuted for traveling across state lines and engaging in sexual relations with a woman not his wife. The relationship was completely voluntary and not commercial. The Justice Department could hardly discontinue the case, begun under the previous, Republican administration, lest it give an impression of political favoritism. In a 5–3 decision, the Court upheld this application of the Mann Act. The majority declared that it must abide by the plain words of the Act, that any “immoral purpose” was enough.44 Justice McKenna for the dissenters claimed that the “White Slave Act” title and legislative history showed that Congress intended to reach only “commercialized vice, immoralities having a mercenary purpose . . . vice as a business.” “Everybody knows that there is a difference between the occasional immoralities of men and women and that systematized and mercenary immorality epitomized in the statute’s graphic phrase, ‘white slave traffic.’”45 Nevertheless, Mann congratulated Justice Day for his proper interpretation of the Act. And there was enough confusion or ambivalence in the public mind as to what really defined “prostitution” to sustain this reading of the Act. There would be almost 5,000 Mann Act convictions over the next decade, a majority of which were non-commercial.46 The Mann Act showed how far the federal police power had been extended. Federal power “to regulate commerce among the states” had been extended to moral regulation. This went beyond the attempt to prohibit interstate shipment of things, as Attorney General Philander Knox put it, “noxious or dangerous in themselves,” which many regarded as the limit of the police-power extension of the commerce power.47 In the Mann Act, there were neither articles nor commercial activity involved. Not even the most extravagant attenuation of Marshall’s definition of commerce in Gibbons v. Ogden could be said to apply to cases such as that of Caminetti. In the last days of the Taft administration, Congress dealt with alcohol in a curious fashion. Whereas most progressive regulation expanded federal power, with prohibition it devolved power to the states. Congress abetted state prohibition laws by prohibiting outright the importation of alcohol into dry states.48 The Webb–Kenyon Act imposed no penalties for shipping liquor into dry states; the federal government would not enforce it. Its title, “an act divesting intoxicating liquors of their interstate character,” indicated that it simply meant to allow states to enforce their prohibition laws over claims of protection under the commerce power. President Taft vetoed it as an unconstitutional delegation of

44 45 46 47

48

Caminetti v. U.S., 242 U.S. 470 (1917). Ibid., 497–98, 502. Langum, Crossing Over the Line, 119, 148. Philander C. Knox, “The Development of the Federal Power to Regulate Commerce,” Yale Law Journal 17 (1908), 147. This idea was expressed in the Congressional debate over the Mann Act. See CR 45 (19 Jan. 1910), 818. 37 Stat. 699 (1913).

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Congress’s power to regulate commerce. “It is said that it should be left to the Supreme Court to say whether this proposed act violates the Constitution,” Taft wrote. “I dissent utterly from this proposition.” He noted that all federal and state elected officials took an oath “sacredly to observe the Constitution.” He condemned “the custom of legislators and executives having any legislative function to remit to the courts entire and ultimate responsibility as to the constitutionality of the measures which they take part in passing” as “an abuse” that exposed the courts to public disapproval for overturning popular but unconstitutional acts. “If, however, the legislators and the executives had attempted to do their duty this burden of popular disapproval would have been lifted from the courts.”49 Congress overrode the veto, and the Supreme Court upheld the Webb– Kenyon Act in 1917. Chief Justice White claimed that Congress had not really delegated power at all. “The will which causes the prohibitions to be applicable is that of Congress, since the application of state prohibitions would cease the instant the act of Congress ceased to apply.”50 But this devolution was a temporary aberration. Before state prohibition laws even got a fair trial, prohibition became nationwide during the First World War. Then Congress proposed, and the states ratified, the Eighteenth Amendment, which constitutionalized the greatest effort ever to establish a federal police power.51

49 50

51

CR 49 (28 Feb. 1913), 4291–92. Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311 (1917), 326. Justices Holmes and Van Devanter dissented, without opinion. Walter Thompson, Federal Centralization: A Study and Criticism of the Expanding Scope of Congressional Legislation (New York: Harcourt, 1923), 184–97.

8 The Lochner Incident

The Supreme Court acquiesced in the development of a federal police power, from sharp division in the lottery case to unanimity on the far more expansive Mann Act. It also endorsed progressive legislation in the states, though one of the most tenacious fables in American history depicts the Court as a prominent obstacle to social reform. Some observers called attention to the falsity of the Court’s anti-progressive reputation even before World War One, but the legend only extended in subsequent decades. Scholars have more systematically refuted it in recent decades, but it persists in the popular mind, among non-specialist historians, and in the legal world.1 The legend hinges principally on one case, Lochner v. New York, in which the Court overturned a New York law that limited the hours of bakers to ten per day and sixty per week. The case became eponymous, the whole period from 1890 to 1937 being called “the Lochner era.” In fact, Lochner was an aberration.2 The Court’s regular acceptance of flimsy police-power pretexts legitimized many pieces of class legislation. Plessy v. Ferguson, in which the majority blithely accepted racial segregation as a means to preserve public peace, better characterizes the Court in this period.

1

2

Charles Warren, “The Progressiveness of the United States Supreme Court,” Columbia Law Review 13 (1913), 294–313; Warren, “A Bulwark to the State Police Power – The United States Supreme Court,” ibid., 667–95; Gary D. Rowe, “Lochner Revisionism Revisited,” Law and Social Inquiry 24 (1999), 221–52. For a recent restatement of the myth, see James Macgregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (New York: Penguin, 2009). Justice David Souter claimed that it was “most familiar history” that the early twentieth century Court “routinely invalidated state social and economic legislation under an expansive conception of the Fourteenth Amendment substantive due process.” U.S. v. Lopez, 514 U.S. 549 (1995), 605 (italics added). Hence my chapter title. David E. Bernstein uses the phrase “the Lochner moment” (Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform [Chicago: University of Chicago Press, 2011], 49) but this calls to mind Bruce Ackerman’s term in We the People: Foundations (Cambridge, MA: Belknap, 1991). Barry Cushman observes, “Calling this period ‘the Lochner Era’ may be a little like calling the 1980s ‘the Al Franken decade’” (“Lost Fidelities,” William and Mary Law Review 41 (1999), 102.

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precursors The state courts began to use the due process clause to strike down legislative acts twenty years before Lochner. Earlier steps taken by the Supreme Court derived from interstate discrimination and the preservation of the national market; Lochner marked its first application to a purely intrastate police-power question. The most important precedent was the Jacobs case, decided by the New York State Court of Appeals in 1885. Jacobs arose out of an effort by the Cigar Makers Union to outlaw the manufacture of cigars in private tenements in cities with a population over 500,000. Samuel Gompers, later president of the American Federation of Labor, led the effort. The union believed that its 1877 strike had failed because of continued home production, and from recent immigrant competition in particular, “a constant endless stream which unless checked will destroy us.”3 Assemblyman Theodore Roosevelt sponsored the bill. He had served on a legislative committee that inspected tenement cigar-manufacturing, and he was shocked by conditions among Bohemian immigrants in New York City. He recalled that “These conditions rendered it impossible for the families of tenement-house workers to live so that the children might grow up fitted for the exacting duties of American citizenship,” and he turned himself into the “spokesman for the battered, undersized foreigners who represented the union and the workers.”4 Roosevelt admitted that the bill conflicted with his laissez-faire economic views; indeed, he confessed that it was “in a certain sense a socialistic one,” but regarded the circumstances as so extraordinary as to justify it. Governor Grover Cleveland signed the bill.5 The state Court of Appeals unanimously overturned the law. “The police power is not without limitations,” it noted. Without constitutional limits, “every right of the citizen might be invaded and swept away.”6 The court saw no rational relationship between cigar-making in tenement houses and the health of either the cigarmakers or the public. Anyone could still manufacture cigars in private houses, factories, and in tenements outside of New York and Brooklyn (the only cities with the requisite population). Roosevelt excoriated the decision. He called it “one of the most serious setbacks which the cause of industrial and social progress and reform ever received.”7 Gompers was less dismayed. He recalled that “through our trade unions we harassed the manufacturers by strikes and agitation” until they gave up tenement manufacturing. “Thus we accomplished through economic power what we had failed to achieve through legislation.”8 3

4 5

6 7

8

Felice Batlan, “A Reevaluation of the New York Court of Appeals: The Home, the Market, and Labor, 1885–1905,” Law and Social Inquiry 27 (2002), 516. Theodore Roosevelt, An Autobiography (New York: Scribner’s, 1920), 80. Howard L. Hurwitz, Theodore Roosevelt and Labor in New York State, 1880–1900 (New York: Columbia University Press, 1943), 79–88. In re Jacobs, 98 N.Y. 98 (1885), 110. Roosevelt, An Autobiography, 81. See also Roosevelt, “A Judicial Experience,” Outlook 91 (13 Mar. 1909), 563–65. Samuel Gompers, Seventy Years of Life and Labor, 2 vols. (New York: Augustus M. Kelley, 1967 [1925]), 197.

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Cases such as Jacobs were unusual. Roosevelt observed in 1909 that “few courts in any state of the Union would make such a decision today.”9 State courts usually supported social and economic regulation. Though progressives denounced them as hidebound reactionaries, out of touch with changing social and economic conditions, judges usually adapted the common law just as progressives said they should.10 They did take a more critical view of laws that tried to empower labor unions, and Jacobs can be seen as one of these. The law resulted from no simple capital-versus-labor conflict, for it involved different interests among employing and laboring individuals and groups.11 State courts routinely accepted putative state exercises of the police power that really reflected the influence of some of those interests. In a typical case, New York enacted a law requiring master (or employer) plumbers to obtain a license from a board composed of two master plumbers, a journeyman plumber, and two health inspectors. Peter Nechamcus claimed that the licensing board used its power to discriminate against racial and religious minorities. The Court of Appeals upheld the act, though the majority admitted that “the act skirts pretty close to that border line.”12 Justice Rufus W. Peckham dissented, regarding the act as essentially arbitrary. An incompetent plumber could still work: “The statute only prohibits him from employing others to work for him.” He saw the Act rather as an effort to control the job market, “to enable the employing plumbers to create a sort of guild or body among themselves.” The Act had no apparent relationship to public health, he concluded. “I think the act is vicious in its purpose and that it tends directly to the creation and fostering of a monopoly.”13

lochner Lochner resembled Nechamcus.14 The New York Bakeshop Act imposed criminal penalties for requiring or permitting bakery employees to work more than ten hours in a day or sixty hours in a week. These provisions reflected the interests of the larger, unionized bakers of the state, who promoted the law.15 These tended to be of German and Anglo-Irish ancestry, while the smaller, 9 10

11 12 13

14

15

Roosevelt, “A Judicial Experience,” 564. Melvin Urofsky, “State Courts and Protective Legislation During the Progressive Era: A Reevaluation,” Journal of American History 72 (1985), 91. Batlan, “A Reevaluation of the New York Court of Appeals,” 518. People ex rel. Nechamcus v. Warden of the City Prison, 144 N.Y. 529 (1895), 535. Ibid., 540, 543; James W. Ely, Jr., “Rufus W. Peckham and Economic Liberty,” Vanderbilt Law Review 62 (2009), 595. There would have been no Lochner case had Peckham remained on the New York Court of Appeals. His successor, Irving G. Vann, voted with the 5–4 majority to uphold the New York bakeshop law. A decision against the constitutionality of a state law was not reviewable by the U.S. Supreme Court until 1914. Sidney G. Tarrow, “Lochner v. New York: A Political Analysis,” Labor History 5 (1964), 279; “A Check to Union Tyranny,” Nation, 4 May 1905, p. 346.

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non-unionized bakers were more recent immigrants, particularly French, Italian, and Jewish. The state’s brief to uphold the Act reflected these interests, saying that “there have come to [New York] great numbers of foreigners with habits which must be changed.” The leader of the union’s campaign, Henry Weismann, had been active in the anti-Chinese labor movement, and jailed for the possession of explosives, in California.16 The New York legislature had also passed labor laws restricting public employment to the native-born.17 The bakeshop law resembled the effort to limit competition from new immigrants seen in the anthracite coal strike. Such nativism commonly motivated progressive reform. As political scientist J. Allen Smith put it, “The incoming tide of foreign immigration has been rising and the civic quality of the immigrant has visibly declined.” He lamented that these newcomers worked for lower wages than natives. The nation was menaced by “the presence among us of alien races who have little in common with the better class of American citizens.”18 Joseph Lochner owned a small bakery in Utica, and was fined fifty dollars for allowing an employee to work more than the sixty-hour weekly limit. Lochner won his case against the law in the local court, but the state high court reversed. The U.S. Supreme Court reversed again, in a 5–4 decision, and it may be that one justice switched his vote to turn Peckham’s dissent into the majority opinion.19 Peckham noted that the Court had heretofore “upheld the exercise of the police power of the states in many cases which might fairly be considered as border ones. . . guided by rules of a very liberal nature.” But there had to be some limit; otherwise “the police power would be a mere pretext – become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint.”20 The state presented a great deal of sociological evidence (a “Brandeis brief” avant la lettre) to prove that bakers faced health problems such as rheumatism, cramps, and swollen legs. Peckham considered this data but remained unconvinced that there was anything particularly unhealthy about the occupation of baking. The Court upheld the provisions of the Act relating to health, such as the requirements for bathrooms and tile floors. The maximum-hour provision “is not, within any fair meaning of the term, a health law, but an illegal interference with the rights of individuals.” Peckham lamented the fact that “this interference on the part of the legislatures of the several states with the ordinary trades and occupations of the people seems to be 16

17

18

19 20

Paul Kens, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (Lawrence: University Press of Kansas, 1990), 47–57; Bernstein, Rehabilitating Lochner, 32; Bernstein, “Lochner v. New York: A Centennial Retrospective,” Washington University Law Quarterly 85 (2005), 1476, 1481, 1496. Hadley Arkes, “Lochner v. New York and the Cast of Our Laws,” in Great Cases in Constitutional Law, ed. Robert P. George (Princeton: Princeton University Press, 2000), 112. J. Allen Smith, The Spirit of American Government (Cambridge, MA: Belknap, 1965 [1907]), 314, 317; Thomas C. Leonard, “‘More Merciful and Not Less Effective’: Eugenics and American Economics in the Progressive Era,” History of Political Economy 35 (2003), 687–712. Bernstein, Rehabilitating Lochner, 146. Lochner v. New York, 198 U.S. 45 (1905), 54, 56.

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on the increase.” He suspected that such acts were “in reality, passed from other motives.”21 Peckham had good reason to be suspicious. But while many historians have conceded that Lochner was an atypical decision, almost none will consider it a good decision. It certainly comported with the tradition frowning upon the use of public power for private ends.22 Though public-choice economic theorists a century later celebrated Peckham’s analysis, it was not twentieth-century economic theory but eighteenth-century political theory that informed the opinion.23 The Fourteenth Amendment reflected that theory, whether expressed via the due process or equal protection clauses.24 Peckham assumed that governments are limited because free men are capable of governing themselves. As another Lochner revisionist puts it, Peckham “had the most firmly-grounded sense that even working people, in the most ordinary and prosaic occupations, merited a presumption of their competence to govern their own lives; that they would not find in our patronizing tenderness the main security for their lives; and they surely would not find there the source of their rights.”25 Oliver Wendell Holmes wrote a separate dissent that, though it missed Peckham’s point entirely, became a classic, and has promoted the misunderstanding of the “Lochner era” to the present day.26 “This case is decided upon an economic theory which a large part of the country does not entertain,” he averred. In one of the most quoted phrases in American constitutional history, he added, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” And whether or not the Court agreed with Spencer’s laissez-faire Social Darwinism “has nothing to do with the right of a majority to embody their opinions in law,” because “a constitution is not intended to embody a particular economic theory.”27 But these were straw men. Whatever similarities there may have been between Spencer and Peckham, the majority’s opinion derived not from Social Darwinism but from deeper sources in the Enlightenment and Founding eras. The Constitution can be said to have embodied a theory of “political economy” – broadly speaking, that of classical 21

22

23 24

25 26

27

Bernstein, Rehabilitating Lochner; Batlan, “A Reevaluation of the New York Court of Appeals,” 522; Lochner v. New York, 61, 63–64. Theodore Roosevelt raised the red herring that the Court had voided “a law regulating the hours of labor under unhygienic conditions” – “Nationalism and the Judiciary,” Outlook, 18 Mar. 1911, p. 574. Stephen A. Siegel, “Lochner Era Jurisprudence and the American Constitutional Tradition,” North Carolina Law Review 70 (1991), 61; Bernard Siegan, “Rehabilitating Lochner,” San Diego Law Review 22 (1985), 454. David E. Bernstein, “Lochner’s Legacy’s Legacy,” Texas Law Review 82 (2003), 49. Barry Cushman, “Some Varieties and Vicissitudes of Lochnerism,” Boston University Law Review 85 (2005), sketches the due process-versus-equal protection dispute between Howard Gillman and David Bernstein. See also V. F. Nourse and Sarah A. Maguire, “The Lost History of Governance and Equal Protection,” Duke Law Journal 58 (2009), 1000. Arkes, “Lochner v. New York and the Cast of Our Laws,” 125. Roscoe Pound christened the dissent in 1909 as “deserv[ing] to become classical” – “Liberty of Contract,” Yale Law Journal 18 (1909), 480. Lochner v. New York, 75.

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liberalism – but not the “economic theory” of Sumner and Spencer.28 This depiction of the Social Darwinism of the Court came from the only real Darwinist on it.29 Holmes’s Lochner dissent gave voice to his positivism, implying that there were practically no limits to the “right of a majority to embody their opinions in law.” “Every opinion tends to become a law,” he wrote. “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe on fundamental principles as they have been understood by the traditions of our people and our law.”30 James Bradley Thayer of Harvard argued for a similar standard. “Every possible presumption is in favor of the validity of a statute,” he wrote in 1893. Courts could overturn acts only in cases “so clear that it is not open to rational doubt.”31 As in the Munn case, Holmes’s position would eliminate the judiciary from the system of separation-of-powers; it would make every court case a “political question.” If the approbation of one reasonable and fair man proved an act’s constitutionality, how could any act ever be struck down? Unless a majority of a legislature consisted of irrational men, how would such a law ever be enacted? By this standard, certainly no appellate court could strike down an act with anything less than a unanimous vote of the judges.32 Louis D. Brandeis told his clerks “that Justice Holmes employed a simple rule of thumb for judging the constitutionality of statutes, summed up in Holmes’s question, ‘Does it make you puke?’”33 Holmes did not adhere to this test himself, which would have meant the obliteration of judicial review. He engaged in due process analysis, and joined the majority in most cases where it did so.34 28

29

30 31

32

33

34

Ellen Frankel Paul, “Freedom of Contract and the ‘Political Economy’ of Lochner v. New York,” New York University Journal of Law and Liberty 1 (2005), 515–69. Holmes evinced a similar sort of projection with regard to Peckham personally. His law clerk, Dean Acheson, recalled asking Holmes what “‘was Justice Peckham like, intellectually?’ ‘Intellectually?’ he answered, puzzled. ‘I never thought of him in that connection. His major premise was ‘God damn it!’” While no such expression from Peckham is extant, it was Holmes who said, “When a state came in here and wanted to build a slaughterhouse, I looked in the Constitution and if I couldn’t find anything in there that said a state couldn’t build a slaughterhouse I said to myself, if they want to build a slaughterhouse, God-dammit, let them build it.” Dean Acheson, Morning and Noon (Boston: Houghton Mifflin, 1965), 65; Eric F. Goldman, Rendezvous with Destiny: A History of Modern American Reform (New York: Vintage, 1977 [1952]), 105. Lochner v. New York, 76. James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (Boston: Little, Brown, 1893), 20, 22. Albert M. Kales, “‘Due Process,’ the Inarticulate Major Premise of the Adamson Act,” Yale Law Journal 26 (1917), 523, 539–40; F. D. G. Ribble, “The Constitutional Doctrines of Chief Justice Hughes,” Columbia Law Review 41 (1941), 1195. Phillipa Strum, Louis D. Brandeis: Justice for the People (Cambridge, MA: Harvard University Press, 1984), 361. Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven: Yale University Press, 1990), 190; Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (Westport, CT: Greenwood, 2001), 58–62.

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Justice Harlan wrote a dissent that Justices White and Day joined. It is difficult to explain how the author of the Adair opinion and the dissenter in Plessy v. Ferguson could have objected to Lochner.35 Though Harlan shared Peckham’s view “that the police power cannot be put forward as an excuse for oppressive and unjust legislation,” he also echoed Holmes’s anything-goes sentiment that “the rule is universal that a legislative enactment, federal or state, is never to be disregarded or held invalid unless it be, beyond question, plainly and palpably in excess of legislative power.” Whereas Peckham saw baking as fundamentally innocuous, Harlan seemed to regard it as particularly hazardous. While the majority suspected that the act’s targeting of baking was an indication of its special-interest nature, Harlan was more convinced by the sociological evidence about bakers’ health. He preferred to sustain unjust legislation than to see the courts usurp legislative power. Despite the intense opprobrium heaped on the decision in later decades, Lochner caused little reaction when it was decided. The majority appeared to be in accord with public opinion. Nor did the decision have much practical impact, as the long-term trend toward shorter hours continued. The case became a byword only for certain academic and political activists. Progressive politicians, led by Theodore Roosevelt, concocted the story that decisions such as Lochner were commonplace, and progressive academics, principally Princeton jurisprude Edward S. Corwin, perpetuated the myth.36

aftermath The Court rarely extended the liberty-of-contract/due process doctrine before the First World War. When it did, it often targeted laws that discriminated against minority groups, particularly in the labor market. In 1914, the Court struck down a Texas law that prohibited anyone from acting as a railroad conductor or brakeman without two years of prior experience. Justice Lamar emphasized that such a law violated both due process and equal protection. “Life, liberty, property and the equal protection of the law, grouped together in the Constitution, are so related that the deprivation of any one of those separate and independent rights may lessen or extinguish the value of the other three,” he 35

36

If unfair to Peckham, Holmes may have been closer to the mark in his pithy characterization of Harlan: “Harlan’s mind was like a vise, the jaws of which did not meet. It only held the larger objects.” Acheson, Morning and Noon, 65. Ely, “Rufus W. Peckham,” 610; Bernsetin, Rehabilitating Lochner, 37–39; Siegel, “Lochner-Era Jurisprudence,” 108; John R. Commons, History of Labor in the United States, 1896–1932, 4 vols. (New York: Augustus M. Kelley, 1966 [1918–35]), III: 690; Bernstein, “Lochner v. New York,” 1501; Gillman, “De-Lochnerizing,” 859; Victoria F. Nourse, “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights,” California Law Review 97 (2009), 757, 776–78, 787, 793; David N. Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right (Washington: CATO Institute, 2011), 224; Keith E. Whittington, “Congress Before the Lochner Court,” Boston University Law Review 85 (2005), 821–58.

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wrote. “In so far as a man is deprived of the right to labor his liberty is restricted, his capacity to earn wages and acquire property is lessened, and he is denied the protection which the law affords to those who are permitted to work.” This statute arbitrarily excluded some who were equally competent to perform the work. Lamar denied the state’s ability to use the police power to create “a privileged class. . . given a monopoly of the right to work in a special or favored provision.”37 In the South, white railroad workers faced competition from blacks rather than immigrants, and laws like this helped them to exclude blacks.38 The following year, the Court struck down a Kansas law that prohibited courts from issuing injunctions in labor disputes. The American Federation of Labor made exemption from injunction its principal legislative goal, the key to making the right to strike effective. The Court interpreted the Kansas act by the same principles articulated in the Adair case. Justice Pitney’s majority opinion confronted the state’s argument that such laws were justified by the unequal bargaining power between employers and workers. A system of private property and individual rights assumed that inequality would exist, Pitney responded. All contracts were made between unequal parties, he wrote, “for the contract is made to the very end that each may gain something that he needs or desires more urgently than that which he proposes to give in exchange. And, since it is selfevident that, unless all things are held in common, some persons must have more property than others, it is from the nature of things impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights.” The Fourteenth Amendment, prevented “any unwarranted interference” with liberty or property.39 Here, Pitney echoed Madison in Federalist 10 – that “The diversity in the faculties of men,” which it was “the first object of government to protect,” gave rise to “different degrees and kinds of property.” The Constitution was meant to prevent abusive legislation “for an abolition of debts, for an equal division of property, or for any other improper or wicked project.”40 Pitney noted that the act had no apparent connection to the police power “beyond the supposed desirability of leveling inequalities of fortune.” There could not be, he said, “one rule of liberty for the labor organization and its members, and a different and more restrictive rule for employers.”41 Only Holmes dissented in toto, again saying that Adair and Lochner should be overruled. Justices Day and Hughes attempted to

37 38

39 40 41

Smith v. Texas, 233 U.S. 630 (1914), 636, 638. David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Durham, NC: Duke University Press, 2001), 47; Eric Arnesen, Brotherhoods of Color: Black Railroad Workers and the Struggle for Equality (Cambridge, MA: Harvard University Press, 2001), 24–25, 38–39. Coppage v. Kansas, 236 U.S. 1 (1915), 17. Federalist 10. Coppage v. Kansas, 18, 20.

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distinguish this case from Adair, noting that an employer was still free to discharge workers for union membership or any other reason.42 The same year, the Court struck down an Arizona law that compelled employers to reserve 80 percent of their jobs for native-born citizens. The Court held that a state could make “reasonable classifications” when it exercised the police power, but could not “deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood,” which was “the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.”43 Only Justice McReynolds dissented in this case, on the grounds of sovereign immunity under the Eleventh Amendment, but added “That the challenged act is invalid I think admits of no doubt.”44 The Court upheld state laws that made similar discriminations in public employment.45 Finally, just as World War One began, the Court struck down a Baltimore ordinance that attempted to segregate housing. The law required property owners to sell their houses only to members of the majority race on the block, and thereby eventually to achieve racially homogenous neighborhoods. In an ingenious tactic, the National Association for the Advancement of Colored People found a white plaintiff who owned a house sandwiched between the only two black-owned properties on a white block. As the plaintiff put it, “If he cannot sell to a colored person, he cannot sell at all, for the lot is so situated with reference to other colored men’s residences that no white man would buy it.” The Court conceded “that there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control.” The prevention of racial friction was the putative police-power premise upon which the Court previously upheld segregation laws, as in Plessy v. Ferguson. It had never considered that state segregation laws might also be the cause of race hostility, only that “its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.”46 Justice Holmes prepared a dissent but did not submit it. The legal academy roundly condemned the decision for failing to recognize that rights derived not from nature but from social convention.47 Though the 42

43 44 45

46 47

Strikes took place almost always after discharge could have any value. For a Critical Legal Studies lament that the premises of Coppage, which evince a “double false-consciousness,” abide in contemporary employment law, see Kenneth M. Casebeer, “Teaching an Old Dog New Tricks: Coppage v. Kansas and At-Will Employment Revisited,” Cardozo Law Review 6 (1985), 765–97. A similar argument is Arthur F. McEvoy, “Freedom of Contract, Labor, and the Administrative State,” in The State and Freedom of Contract, ed. Harry N. Scheiber (Stanford: Stanford University Press, 1998). Truax v. Raich, 239 U.S. 33 (1915), 41. Ibid., 44. Thomas Reed Powell, “The Right to Work for the State,” Columbia Law Review 16 (1916), 99–114. Buchanan v. Warley, 245 U.S. 60 (1917), 62, 80–81. Alexander M. Bickel and Benno C. Schmidt, The Judiciary and Responsible Government: 1910– 21 (New York: Macmillan, 1984), 797; David E. Bernstein, “Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective,” Vanderbilt Law Review 51 (1998), 856.

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decision did ameliorate residential segregation, many cities ignored it for decades.48 In the dozen years after Lochner, the Court struck down very few laws on Fourteenth Amendment grounds, and it had plausible reasons for striking down the ones that it did.49 It accepted, for example, a state law requiring the licensing of employment agencies, but struck down their outright prohibition.50 One sees the ephemeral nature of Lochner in the ease with which it was overruled.51 In 1913, Oregon enacted a law that limited all factory workers – regardless of sex – to ten hours a day. It permitted them to work up to three additional hours if they were paid time-and-a-half. Thus the act could be regarded as not just an hours regulation, but a wage regulation as well.52 But the Supreme Court, in a 5–3 decision, three days after Congress had declared war on Germany, had no difficulty sustaining it. Though the act was limited to factory workers, the Court did not regard this as an arbitrary classification. And it interpreted the time-and-a-half provision not as a wage regulation but as a penalty to help enforce the hour provision. The majority did not even mention Lochner, and the minority dissented without opinion.53 Former President Taft, who said in 1914 that Lochner would not be decided as it had been in 1905, seemed correct. But, while he opposed the Lochner decision itself, Taft never disavowed due process limitations altogether.54 Though fallow, the due process field was not yet barren.

48

49

50 51

52 53 54

Bernstein, “Philip Sober Controlling Philip Drunk,” 859–66; William A. Fischel, “Why Judicial Reversal of Apartheid Made a Difference,” Vanderbilt Law Review 51 (1998), 975–91; “Racial Zoning Again,” American City (Nov. 1950), 137; David M. P. Freund, Colored Property: State Policy and White Racial Politics in Suburban America (Chicago: University of Chicago Press, 2007), 59. Michael J. Phillips, “How Many Times Was Lochner-Era Substantive Due Process Effective?” Mercer Law Review 48 (1997), 1049–90. One hardly worth considering is Chicago, Milwaukee and St. Paul Railroad v. Wisconsin, 238 U.S. 491 (1915), which struck down a state law requiring railroads to keep unoccupied upper berths unmade if lower berths were occupied. Equally insignificant is Eubank v. Richmond, 226 U.S. 137 (1912), in which the Court prevented a majority of property owners from fining one of their neighbors whose bay window extended three feet beyond their self-imposed setback line. Brazee v. Michigan, 241 U.S. 340 (1916); Adams v. Tanner, 244 U.S. 590 (1917). Thomas Reed Powell, “The Logic and Rhetoric of Constitutional Law,” Journal of Philosophy, Psychology, and Scientific Methods 15 (1918), 656. See Appendix A. Bunting v. Oregon, 243 U.S. 426 (1917). Nourse, “A Tale of Two Lochners,” 784.

9 Court and Constitution in Crisis

Notwithstanding the exaggerated claims of the reactionary impact of federal and state court decisions, American courts did find themselves in the middle of an intense criticism of the American constitutional system. Attacks were wideranging, diffuse, and often contradictory, quite like the “progressive” movement of which they were a part. Various commentators identified the problem as the Constitution itself, judicial review, or particular judges and decisions. They recommended, in response, constitutional amendments, limitation of judicial power, or new judicial personnel. The issue of the Constitution and the Courts became an important element in the presidential campaign of 1912.

walter clark Walter Clark, the “fighting judge” and Chief Justice of the North Carolina Supreme Court, launched a sustained critique of the early twentieth-century constitutional order. Clark came from the Antifederalist and Confederate traditions. His father owned 5,000 acres and 200 slaves before the war, and Clark entered the Confederate Army at the age of fifteen. He remained committed to the “lost cause” for the rest of his life.1 After the war, he expected the extinction of the emancipated race, and remained a paternalistic white supremacist when it unexpectedly survived.2 He condemned the industrial power of the post-war North. In Social Gospel and Bryanesque language, he claimed that if Christ returned today, “They who form great syndicates and trusts and rob the people . . . would be foremost among those who would crucify him.”3

1

2

3

Aubrey Lee Brooks, Walter Clark: Fighting Judge (Chapel Hill: University of North Carolina Press, 1944); Walter Clark, “Back to the Constitution,” Virginia Law Review 3 (1915), 215. “White Labor in North Carolina,” Raleigh Daily Sentinel, 30 Nov. 1865, in The Papers of Walter Clark, ed. Aubrey Lee Brooks and Hugh Talmage Lefler, 2 vols. (Chapel Hill: University of North Carolina Press, 1948–50), I: 154; Willis P. Whichard, “A Place for Walter Clark in the American Judicial Tradition,” North Carolina Law Review 63 (1985), 298–304. “Political Teachings of the Gospel,” 15 Jan. 1897, in Papers of Walter Clark, I: 465.

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Clark identified the Constitution itself as the problem. “The glaring defect of the Constitution was that it was not democratic,” he wrote.4 Clark celebrated Jeffersonian democracy, but either ignored or rejected the natural rights philosophy of the author of the Declaration of Independence. Like many progressive jurists, he admired the German historicists, Rudolf von Jhering in particular, and was an ardent promoter of Benthamite philosophy of law.5 He espoused a Marxian evolutionary view of social and political development as the result of “ceaseless combat between those who exploit and those who are exploited.”6 In the center of his library he kept a bust of Napoleon, whom he admired as a reformer and lawgiver. Clark translated an edition of Napoleon’s private letters, in which he suggested that Bonaparte’s tyranny was not objectionable until he betrayed its popular base.7 He called for “socialized democracy,” noting that “Every civilized government is to a large extent, and almost in proportion to its degree of civilization, socialistic.”8 The framers of the Constitution intended to thwart socialized democracy. He gave his most extensive criticism of the Constitution in a 1906 address at the University of Pennsylvania Law School. He revived the Antifederalist arguments that the Constitutional Convention was an illegal cabal, whose indifference to democracy was reflected in its omission of a bill of rights. “It was admirably adapted for what has come to pass – the absolute domination of the government by the ‘business interests.’” Though he denied that the Convention had intended to establish judicial review, he regarded the life tenure of federal judges as the most important provision that Hamilton had secured for plutocracy. Clark also struck a more profound and fundamental historicist or relativist criticism of the Constitution when he asserted that even if it had been “perfectly adapted to the needs and wishes of the people of that day, we would still have outgrown it.”9 He proposed to limit the power of the federal judiciary – to end life tenure, provide for an elective judiciary, to remove judges by simple majority vote, or to forbid judicial review.10 Progressives in Congress hailed Clark’s work, had it reprinted as a Senate document, and recommended that Presidents Taft and Wilson nominate him to the Supreme Court.11

4 5 6 7

8

9

10 11

Walter Clark, “Some Defects of the Constitution of the United States,” 27 Apr. 1906, ibid., II: 558. Brooks, Walter Clark, 80–81; Whichard, “A Place for Walter Clark,” 332–33. Clark, “Government by Judges,” 27 Jan. 1914, in Papers of Walter Clark, II: 573. Brooks, Walter Clark, 248; Constant [Louis Constant Wairy], Recollections of the Private Life of Napoleon, 3 vols. (Akron, OH: Saalfield, 1910), I: 5. Brooks, Walter Clark, 83; Clark, “Where Shall the Governing Power Reside?” 29 Apr. 1897, in Papers of Walter Clark, I: 442. Clark, “Some Defects of the Constitution,” 558–59. He similarly observed that John Marshall was, like everyone, merely a product of his time – “Back to the Constitution,” 225. Clark, “Government by Judges,” 589. Lee Overman to Clark, 9 Dec. 1910; Robert L. Owen to Clark, 21 Jul. 1911 and 23 Jun. 1917, in Papers of Walter Clark, II: 109, 137, 346. There is no indication in the Wilson papers that the President seriously considered appointing him.

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j. allen smith The political scientist J. Allen Smith provided another comprehensive critique of the Constitution. In 1907, he published The Spirit of American Government, denouncing “its inherent opposition to democracy, the obstacles that it has placed to majority rule.” Smith argued that Americans looked only at the outward, and apparently democratic, form of the Constitution, and did not see its antidemocratic substance or spirit. The evil genius of the Constitutional Convention was to give the document enough of a patina of democracy to secure ratification. The Constitution repudiated the Declaration of Independence, “although this fact was persistently denied by those who framed it and urged its adoption,” Smith wrote. Hamilton in particular engaged in a campaign of “concealment and misrepresentation” in The Federalist: “In this species of political sophistry Hamilton was a master.” And, once ratified, the Constitution was practically impossible to amend, to ensure perpetual minority rule. Judicial review contributed heavily to the suppression of democracy, assuring “the ascendancy of the property-holding class in a society leavened with democratic ideas. . .. The Constitution was in form a political document, but its significance was mainly economic.” But Smith argued that the Convention did not provide for judicial review. To have done so would have doomed the document’s ratification. Rather, the Federalists expected the Court to develop it by interpretation. Judicial review was “quite in harmony with the general spirit and intention of its framers.” And Smith conceded that the Court had used its political power prudently, avoiding open clashes with the other branches.12 Smith also depicted the Constitution as a product of its time, reflecting a particular stage in political evolution. The separation of powers was appropriate to a period of class struggle, when the people were still establishing their political power, but should give way once popular sovereignty had been achieved. The Constitution now prevented the arrival of the final stage of “unlimited but responsible” government. Only the United States had maintained “the eighteenth-century notion of liberty”; all other modern nations had repudiated it. “In fact, true liberty consists not in divesting government of effective power, but in making it the instrument for the unhampered expression and prompt enforcement of public opinion.”13 Other reformers targeted judicial review in particular. Princeton Professor Edward S. Corwin, who coined the term “judicial review,” attacked the idea of a written constitution as fundamental law, superior to ordinary legislation. He found it a circular argument, whereby “the principal mark of the Constitution’s 12

13

J. Allen Smith, The Spirit of American Government (Cambridge, MA: Belknap, 1965 [1907]), 218, 77, 49, 298, 90, 183, 346, 107. Ibid., 127, 301, 305. For a contemporary response, defending the democratic nature of the Constitution, see Henry Cabot Lodge, The Democracy of the Constitution and Other Essays (New York: Scribner’s, 1915), 32–87, and, more recently, Akil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005), 159.

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fundamental character is its defense by the paramount judiciary.” Corwin, too, identified the Lockean, natural-rights principles of the Founding as the source of the problem. “The real logic upon which the right of the federal Supreme Court to question the validity of acts of Congress rests, is the logic of a certain way of looking at the relation of the individual to the government.”14 The most intense and sustained assault on judicial review came from Louis Boudin, a socialist theoretician and labor lawyer. Though conservatives denounced his “revolutionary” assault on the judiciary, Boudin identified the judges as the real revolutionaries. He echoed Clark and Smith’s argument that the Constitution would not have been ratified if judicial review had been explicitly provided, and that the Court had established a “judicial despotism” over the course of the nineteenth century.15 But some progressives denied that judicial review had been a usurpation, or that it was inherently inimical to progressive reform. Charles Beard, the Columbia University political scientist whose Economic Interpretation of the Constitution was perhaps the best-known of the progressive critiques of the Founders, showed that there was widespread support for judicial review in the 1780s, and this ultimately convinced most progressives.16 Beard’s Columbia mentor, Frank J. Goodnow, noted that the Constitution contained several means to control judges, and observed that rising criticism should serve as a warning to them. Since “the attitude of the Supreme Court is the only really important thing to consider when we are treating of the permanent constitutional obstacles to social reform,” that attitude could be adjusted, as it often had in the past. For it was not the mechanism of judicial review, or any other particular feature of the Constitution, that posed the principal problem. Rather it was the philosophy behind the Constitution. The solution to industrial problems “seems to be impossible under the principles of law which were regarded as both axiomatic and permanently enduring at the end of the eighteenth century,” Goodnow wrote in 1911. “That law was permeated by the theories of social compact and natural right, which in turn were based on the conception that society was static rather than dynamic or progressive in character.”17

14

15 16

17

Edward S. Corwin, “The Supreme Court and Unconstitutional Acts of Congress,” Michigan Law Review 4 (1906), 623, 626. Louis B. Boudin, “Government by Judiciary,” Political Science Quarterly 26 (1911), 264. Charles A. Beard, “The Supreme Court – Usurper or Grantee?” Political Science Quarterly 27 (1912), 1–35; Thomas Reed Powell, “The Courts and the People,” Political Science Quarterly 27 (1912), 682–88; Herman Belz, “Andrew C. McLaughlin and the Defense of Constitutionalism,” in A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective (Lanham, MD: Rowman & Littlefield, 1998), 81–84. For a review of the debate, see Alan Westin’s introduction to Charles Beard, The Supreme Court and the Constitution (Englewood Cliffs, NJ: Prentice-Hall, 1962 [1912]); Mary Sarah Bilder, “Idea or Practice: A Brief Historiography of Judicial Review,” Journal of Policy History 20 (2008), 6–25. Frank J. Goodnow, Social Reform and the Constitution (New York: Macmillan, 1911), 1–15, 31, 329–57.

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herbert croly Herbert Croly provided one of the most influential progressive critiques of the American political and constitutional system. His 1909 Promise of American Life presented a comprehensive analysis of American traditions and institutions that would have some impact on the 1912 political campaign. Croly’s background and prose were complex to the point of opacity. His father, David Goodman Croly, was a devoté of August Comte; Herbert was literally a baptized positivist.18 At Harvard, Croly discovered William James, whose synthesis of nineteenth-century scientism, Pragmatism, appeared in 1907. Croly set out in Promise “to emancipate [Americans] from their past.”19 This past had produced the characteristic American creed of “optimism, fatalism, and conservatism” – a belief that progress (primarily a higher material standard of living) was inevitable if Americans preserved their traditions, particularly those of individual liberty. But this faith had been shaken by the results of the urban and industrial revolutions, which exposed the “erroneous but highly cherished political theories” of the Founding. Individual liberty and a government that merely protected individual rights inevitably produced intolerable inequality, Croly argued. He regarded liberty as an essentially aristocratic value; its benefits accrued only to a few. The Constitution’s contemporary adherents were “blind to the fact that under a legal system which holds private property sacred there cannot possibly be any equal opportunities for exercising such rights.” The original American republic, he argued, “was founded partly on temporary conditions and partly on erroneous theories.”20 Croly shared the general progressive preference for state power over individual liberty. As he noted, “Individual freedom is important, but more important still is the freedom of a whole people to dispose of its own destiny.” We now needed “a partial revision of some of the most important articles of the American creed.” The Founding doctrine of natural rights needed the greatest reconsideration. “Of all the perverted conceptions of democracy, one of the most perverted and dangerous is that which identifies it exclusively with a system of natural rights.” Here, Croly employed a common progressive sleight-of-hand, seeing natural rights as a consequence of democracy rather than democracy as a consequence of natural rights. The Constitution, Croly wrote, “is itself partly responsible for some of the existing abuses, evils, and problems” because it was designed to secure natural rights. He called for not just a new understanding of the Constitution but “a new Declaration of Independence.”21

18

19

20 21

ANB; Ralph Henry Gabriel, The Course of American Democratic Thought, 3d ed. (Westport, CT: Greenwood, 1986), 194; Charles Forcey, The Crossroads of Liberalism: Croly, Weyl, Lippmann, and the Progressive Era, 1900–25 (New York: Oxford University Press, 1961), 15. Herbert Croly, The Promise of American Life (New York: E. P. Dutton, 1963 [1909]), 5; Forcey, Crossroads of Liberalism, 20. Croly, Promise of American Life, 194, 181, 406. Ibid., 178, 21, 81, 137, 147, 278.

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Croly regarded human nature as essentially good and capable of perfection, quite in contrast to the Founders’ view of the intractable problem of human selfishness, which produced faction, as “sown in the nature of man.” Croly insisted that private motives and public good could be brought into perfect harmony.22 His philosophy evinced something of the idea of the ancient polis, or the Rousseauean general will.23 Croly argued that individuals could only realize their potential by participation in collective, national endeavors.24 He called for a new system of national education based on “collective action and formative collective discipline,” with talented leaders directing “a socially constructive drama.” His architectural training and artistic temperament echoed that of Oscar Wilde, who envisioned the day when economic collectivism would produce the true individualism of self-creation.25 Croly frankly advocated an elite-led collectivism, judging that “the average American individual is morally and intellectually inadequate to a serious and consistent conception of his responsibilities as a democrat.” Croly did not shrink from the charge that his vision amounted to “socialism.” He made the astonishing historical claim that Jefferson “sought an essentially equalitarian and even socialistic result by means of an essentially individualistic machinery.” He scouted a similarly “latent socialism” in Jacksonian Democracy. Thus the view that Croly called for “Hamiltonian means to Jeffersonian ends” hides his radical redefinition of those ends as socialistic. Croly envisioned an economic system in which men competed only for excellence in their work and public benefit, one in which compensation would be adjusted “to the needs of a normal and wholesome human life,” quite similar to Marx’s formula of “from each according to his ability, to each according to his need.”26 Despite the radically ambitious panorama of Croly’s Promise, he did not recommend immediate constitutional change. The only pressing reform that he called for was the elimination of the distinction between intra- and interstate commerce, one that was already well underway. Progressives should not call for fundamental constitutional change; “Let it wait,” he advised. Prudence counseled radicals to advance change under the cloak of moderate and incremental proposals. Croly observed that dogmatic or theoretical republicans had destroyed the first two French Republics, while the successful third Republic had been constructed by theoretical monarchists who were practical republicans. Croly also avoided the anti-judicial clamor common among progressives, seeing the 22 23 24

25

26

Ibid., 418, 399. Forcey, Crossroads of Liberalism, 25. Croly, Promise of American Life, 280, 409; Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy (Lawrence: University of Kansas Press, 2009), 72; The Progressive Revolution in Politics and Political Science, ed. John Marini and Ken Masugi (Lanham, MD: Rowman & Littlefield, 2005), 1. Croly, Promise of American Life, 428; Oscar Wilde, “The Soul of Man Under Socialism,” in The Works of Oscar Wilde (New York: Walter J. Black, 1927), 487–513; Wilfred M. McClay, “The Soul of Man Under Federalism,” First Things (Jun./Jul. 1996), 21. Croly, Promise of American Life, 303, 43, 51, 356, 417; Forcey, Crossroads of Liberalism, 37–39.

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potential for judicial power to advance progress. “If the instrument that the Supreme Court expounds could be altered whenever a sufficiently large body of public opinion has demanded a change for a sufficiently long time, the American democracy would have much more to gain than to fear from the independence of the federal judiciary.” In Croly’s view, Democrats were unlikely to accomplish much due to their adherence to individual rights and limited government. Croly hoped for more from progressive Republicans such as Theodore Roosevelt. Roosevelt was “a New Federalist or rather a New Nationalist,” who could “emancipate American democracy from its Jeffersonian bondage.”27 The 1912 election would bring the progressive constitutional argument to a head. “It is becoming unfashionable to speak well of the Constitution,” Utah Senator George Sutherland observed on the eve of the 1912 election. “We are told that the Constitution stands in the way of reforms which are demanded by the people; that it has become a dead wall in the path of progress, to be assaulted and overthrown before we can move on.”28 The best-known assault appeared the following year, in Charles Beard’s Economic Interpretation of the Constitution of the United States. In this work, Beard argued that the founders had established a constitution that would protect property against democracy – the victory of business in the post-Revolutionary period’s “war between business and populism.”29 Indeed, he purported to demonstrate that the Founders had reaped a personal windfall as speculators in depreciated Confederation securities that the new government redeemed at face value.30 A youthful Beard had written that the Constitution had been “the bulwark of every great national sin – from slavery to monopoly.”31 Beard defended the legitimacy of judicial review against the charges by Walter Clark and others that it had been usurped. But this was a decidedly backhanded compliment to the courts. It was precisely because the Constitution meant to establish a plutocracy that it provided for judicial review. And, like most of the progressives, Beard’s criticism of Court and Constitution stemmed from his rejection of the founders’ natural-rights philosophy. “The doctrine that the individual has fundamental personal and property rights which are beyond the reach, not only of the majority but of the state itself, can be sustained on no other theory than that of anarchy,” he wrote in 1912. “It rests upon a notion as obsolete and indefensible as the doctrine of natural rights.”32

27 28

29

30

31 32

Croly, Promise of American Life, 351, 316, 440, 356, 200, 169. George Sutherland, “What Shall We Do with the Constitution?” Independent, 3 Oct. 1912, p. 1003; CR 47 (11 Jul. 1911) 2802. Charles A. Beard, An Economic Interpretation of the Constitution of the Untied States (New York: Macmillan, 1913); Beard, The Supreme Court and the Constitution, 81. For a review of this argument and more recent defenses, see Ellen Nore, Charles A. Beard: An Intellectual Biography (Carbondale: Southern Illinois University Press, 1983), 63–65 and Robert A. McGuire and Robert L. Ohsfeldt, “Economic Interests and the American Constitution: A Quantitative Rehabilitation of Charles A. Beard,” Journal of Economic History 44 (1984), 509–19. Quoted in Nore, Charles A. Beard, 55. Quoted in Bernard C. Borning, The Political and Social Thought of Charles A. Beard (Westport, CT: Greenwood, 1984 [1962]), 76.

10 Taft and the Republican Crackup

the new nationalism Croly provided the slogan “the New Nationalism” for Roosevelt’s 1912 campaign, which split the Republican Party and elected Woodrow Wilson. Croly mostly amplified or echoed Roosevelt’s increasingly progressive ideas, especially those of his last two annual messages to Congress.1 To his congressional foes, Roosevelt called for greater concentration of power in the federal government, observing that “the danger to American democracy lies not in the least in the concentration of administrative power in responsible and accountable hands. It lies in having the power insufficiently concentrated, so that no one can be held responsible to the people for its use.”2 He denounced the Court’s “academic theory about ‘freedom of contract’” as frustrating necessary social reform. Turning Sir Henry Maine on his head, he argued that “Progress in civilization has everywhere meant a limitation and regulation of contract.” Though he defended the judiciary in general against attacks by labor leaders, it was because their irresponsible attacks made salubrious judicial reform less likely. Too many judges, he said, had not kept up with new social and economic conditions, and defended “a merely academic ‘liberty,’ the exercise of which is the negation of real liberty.” Twentieth-century democracy needed “judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions.”3 William Jennings Bryan congratulated the President on his call for courtcurbing.4 Privately, Roosevelt noted the unique power of the judiciary, which was sometimes abused. “But it is always abused in the interest of conservatism 1

2

3 4

Charles Forcey, Introduction to Croly, Promise of American Life (New York: E. P. Dutton, 1963 [1909]), xviii; Gary Murphy, “‘Mr. Roosevelt Is Guilty’: Theodore Roosevelt and the Crusade for Constitutionalism, 1910–12,” Journal of American Studies 36 (2002), 442. “Eighth Annual Message,” 8 Dec. 1908, in The State of the Union Messages of the Presidents, 1790–1966, ed. Fred I. Israel, 3 vols. (New York: Chelsea House, 1966), III: 2303. This comported with Woodrow Wilson’s observation that “There is no danger in power, if only it be not irresponsible,” in “The Study of Administration,” Political Science Quarterly 2 (1887), 204, 210. “Eighth Annual Message,” 2305, 2310, 2312. Roosevelt to William Jennings Bryan, 4 Feb. 1908, LTR VI: 923.

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and against radicalism – which, as I am personally a radical, may account for some of my feeling that the courts do abuse their power.”5 Similarly, after he left office he gave lectures at the Sorbonne and Oxford expressing his belief “that the United States must give up its exceptional faith in ‘unalienable rights’ and join the great European powers in protecting individual men and women from the destructive forces of industrialization.”6 A complex set of factors produced the Republican division in 1912, but most of the salient ones had a constitutional aspect. Most accounts of the 1912 election focus on the political contest between Roosevelt and Wilson – between “the warrior and the priest.”7 Historians usually overlook the constitutional focus of the division between Taft and Roosevelt – what might be called “the law and the prophet.”8 William Howard Taft deeply venerated the Constitution, but this natural-born judge was out of place in the executive branch. He had won only one election before the presidency, an Ohio judgeship in 1889. Roosevelt’s domination of the Republican party in 1908 meant that Taft did not have to pursue the nomination. Though he did campaign in 1908, the Democrats’ third nomination of William Jennings Bryan made it a relatively easy run. Though usually depicted as a laissez-faire conservative, Taft was in fact a progressive, as he claimed to be and as he was regarded in Republican ranks. The conservatives in the party feared that he was too close to Roosevelt. The wreck of his administration began with the perennial tariff issue. The 1908 Republican platform promised “revision.” Taft’s inability to control congressional protectionists produced the Payne–Aldrich tariff of 1909, which provided only modest reductions and some increases. It was in fact the first-ever reduction enacted by a Republican Congress, but Taft ineptly called it “the best bill that the Republican party ever passed.” His inattentiveness to the demands of American newspaper publishers for reduced rates on imported paper exacerbated the image problem that Taft suffered.9 Above all, the tariff fanned the flames of anger kindled by the Western Republican “insurgents.” 5 6

7

8

9

Roosevelt to John Morley, 1 Dec. 1908, LTR VI: 1400. Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy (Lawrence: University Press of Kansas, 2009), 36. John Milton Cooper, Jr., The Warrior and the Priest: Woodrow Wilson and Theodore Roosevelt (Cambridge, MA: Harvard, 1983). Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy; William A. Schambra, “Elihu Root, the Constitution, and the Election of 1912” (Ph.D. diss., Northern Illinois University, 1983); John Murphy, “‘Back to the Constitution’: Theodore Roosevelt, William Howard Taft and Republican Party Division, 1910–12,” Irish Journal of American Studies 4 (1995), 109–26; Murphy, “‘Mr. Roosevelt Is Guilty,’” 441–57. The two latter articles are by the same author and substantially identical. Jonathan Lurie, William Howard Taft: The Travails of a Progressive Conservative (Cambridge: Cambridge University Press, 2012); “Taft Lauds Tariff as Nation’s Best,” New York Times, 18 Sep. 1909, p. 2 shows that his statement was taken somewhat out of context. George L. Mowry, Theodore Roosevelt and the Progressive Movement (New York: Hill & Wang, 1960 [1946]), 30; David F. Anderson, William Howard Taft: A Conservative’s Conception of the Presidency (Ithaca: Cornell University Press, 1968), 205.

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The old issue of internal improvements had given way to a new movement for the conservation of natural resources. Taft alienated progressives when he dismissed Gifford Pinchot, head of the National Forest Service, who had accused Taft’s Interior Secretary Richard Ballinger of corruption in the leasing of Alaska coal lands. Behind the particular charges of the Pinchot–Ballinger drama lay the issue of executive power, and Taft’s rejection of Roosevelt’s “stewardship” theory of the presidency. Taft had replaced Roosevelt’s Interior Secretary, James Garfield, with Ballinger because Taft believed that Garfield had exceeded his legal authority in removing government land from development. Taft hoped to make legal and regular the previous administration’s withdrawal of “midnight forests.”10 When a progressive California congressman accused him of having betrayed Roosevelt’s policies, Taft explained, “We have a government of limited power under the Constitution, and we have got to work out our problems on the basis of law. Now, if that is reactionary, then I am a reactionary.”11 The administration of the Pure Food and Drugs Act raised similar constitutional problems, which almost inevitably arose from the interest-group basis of the act.12 Roosevelt was affronted when the chief chemist and pure-food crusader Harvey Wiley used his administrative discretion to suggest that saccharine was dangerous. “Anybody who says saccharine is injurious is an idiot,” the President replied. “Dr. Rixley gives it to me every day.” Wiley’s resignation under Taft further embarrassed the Republicans.13 Though it is seldom recognized, Taft continued Roosevelt’s effort to make the Supreme Court more progressive. Taft’s lifelong ambition was to be Chief Justice, but he declined two offers from Roosevelt to join the Court, and he filled five vacancies while president. He had a dim view of the Court in 1909, telling Tennessee judge Horace Lurton, “The condition of the Supreme Court is pitiable, and yet those old fools hold on with such a tenacity that it is most discouraging.” Chief Justice Fuller, whom Taft resented for refusing to resign so that he could take his place, he called “almost senile.” “Harlan does no work; Brewer is so deaf that he cannot hear and has got beyond the point of the commonest accuracy in writing his opinions; Brewer and Harlan sleep almost through all the arguments. I don’t know what can be done. It is most

10

11

12

13

Paolo E. Coletta, The Presidency of William Howard Taft (Lawrence: University Press of Kansas), 88; Anderson, William Howard Taft, 72; Benjamin Shelton, “Lost in the Landscape: Recovering the Constitutional Arguments Against the Conservation Movement” (senior thesis, Hillsdale College, 2011), 26–29. Henry F. Pringle, The Life and Times of William Howard Taft: A Biography, 2 vols. (New York: Farrar-Rinehart, 1939), I: 476, 480; II: 758. Anderson, William Howard Taft, 78; Elizabeth Sanders, Roots of Reform: Farmers, Workers and the American State, 1877–1917 (Chicago: University of Chicago Press, 1999), 391. Oscar E. Anderson, Jr., “The Pure-Food Issue: A Republican Dilemma, 1906–12,” American Historical Review 61 (1956), 550–73.

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discouraging to the active men on the bench.”14 He worried less about jurisprudence than about matters of efficiency and collegiality.15 Taft replaced the four most conservative members of the Court – Fuller, Peckham, Brewer, and Harlan – with more progressive jurists. He appointed Charles Evans Hughes, the progressive Governor of New York, who said in 1907 that “We are under a Constitution, but the Constitution is what the judges say it is.”16 By the end of Taft’s term, the Court had moved toward greater acceptance of both state and federal police power, as progressive critics acknowledged.17 He was on friendly enough terms with “fighting judge” Walter Clark to urge him to join the American Bar Association’s judicial section.18 The regulation of big business became the central issue of the 1912 campaign. Despite a few dramatic efforts such as the Northern Securities prosecution, Roosevelt had adopted what might be called an anti-antitrust policy, calling for administrative regulation rather than trust-busting. Roosevelt’s trust-busting amounted to little more than image-making and the assertion of the government’s superiority to business – and gratifying his personal urge to cow the magnates. Roosevelt admitted that he never cared about market share or other indicia of monopoly power. “I do not care a rap what proportion [Morgan, Rockefeller, and Guggenheim] own of the industry,” he explained to William Jennings Bryan. “What I am interested in is getting the hand of government put on all of them – this is what I want.”19 Taft more aggressively enforced the Sherman Act, initiating almost twice as many suits as Roosevelt in half as many years. At the same time, Taft did not advocate the position that the Act applied to every combination in restraint of trade. As a circuit-court judge, he had helped to construct what came to be called the “rule of reason” – that only combinations that harmed consumer welfare violated the Act. The Supreme Court finally adopted this doctrine in the Standard Oil and American Tobacco cases in 14

15

16

17

18

19

Pringle, Life and Times of William Howard Taft, I: 529. Taft’s resentment was not without foundation. Harlan and Fuller were said to have made a pact not to resign “until they have to take us out feet foremost” – John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 (Westport, CT: Greenwood, 1978), 201; Linda Przybyszewski, The Republic According to John Marshall Harlan (Chapel Hill: University of North Carolina Press, 1999), 75. G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges, expanded ed. (New York: Oxford University Press, 1988), 179. Speech before the Elmira Chamber of Commerce, 3 May 1907, in Addresses and Papers of Charles Evans Hughes (New York: Putnam’s, 1908), 139; William G. Ross, The Chief Justiceship of Charles Evans Hughes, 1930–41 (Columbia: University of South Carolina Press, 2007), 248. David M. Tucker, “Justice Horace Harmon Lurton: The Shaping of a National Progressive,” American Journal of Legal History 13 (1969), 223–32; Michal R. Belknap, “Mr. Justice Pitney and Progressivism,” Seton Hall Law Review 16 (1986), 381–423; Thomas George Karis, “Congressional Behavior at Constitutional Frontiers” (Ph.D. diss., Columbia University, 1951), 48; Theodore Roosevelt to Henry L. Stimson, 5 Feb. 1912, LTR VI: 495. Taft to Walter Clark, 30 Mar. 1914, in The Papers of Walter Clark, ed. Aubrey Lee Brooks and Hugh Talmage Lefler, 2 vols. (Chapel Hill: University of North Carolina Press, 1948–50), II: 241. Roosevelt to William Jennings Bryan, 22 Oct. 1912, LTR VII: 630.

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1911 – in large part due to the four new justices whom Taft had appointed.20 These prosecutions threw the business community into some alarm. Taft’s Attorney General, George Wickersham, said of the orders to break up the oil and tobacco trusts, “probably no more drastic decree has ever been entered by the Supreme Court.” The administration had helped to turn the Sherman Act into “an actual, effective weapon to the accomplishment of the purposes for which it was primarily enacted, namely the destruction of the great combinations familiarly known as ‘trusts.’” Wickersham also used notably progressive language (some borrowed from Woodrow Wilson) about the utilitarian and pragmatic nature of law.21 Taft’s antitrust enforcement policy irritated Roosevelt, who had arranged what were known as “gentlemen’s agreements” with the industrialists, limiting the application of the law in exchange for good behavior. The clash with Taft intensified when Taft decided to initiate a suit against United States Steel. In 1907, Roosevelt had assented to the steel trust’s acquisition of the Tennessee Coal and Iron Corporation, the majority stock of which was held by a New York brokerage house facing failure during the financial panic of that year. Roosevelt betrayed profound ignorance or naivete in this case, as U.S. Steel paid $45 million for a rival worth anywhere from four to twenty times that amount.22 In launching the prosecution, the administration maladroitly revealed information suggesting that Roosevelt had yielded to U.S. Steel for political reasons.23 Roosevelt unjustly implicated Taft in his decision and, as in the anthracite coal strike, used the stewardship-emergency argument, likening the panic of 1907 to the Civil War, particularly to Lincoln’s suspension of habeas corpus.24 He argued that the U.S. Steel suit showed the futility of a legal approach to industrial regulation.25 Where Taft invoked the law, Roosevelt was a prophet of administration. Progressives urged Roosevelt to come “back from Elba” and revive the movement. His first step back came in a speech to the Colorado legislature, criticizing the Supreme Court’s decisions in Lochner and E. C. Knight. They created “a neutral land – a borderland – in the spheres of action of the national and state governments” – where both governments claimed power, the Court held that 20

21

22 23 24

25

Murphy, “‘Mr. Roosevelt is Guilty,’” 450; Taft, “Address of President Taft at the Banquet of the Aberdeen Commercial Club,” Aberdeen, SD, 23 Oct. 1911, William Howard Taft Papers, microfilm edition, reel 580. Justices Fuller, Peckham, Brown, and Brewer shared Harlan’s view that the Sherman Act applied to all restraints of trade. Harlan was the last adherent of this position, and sole dissenter in 1911. George W. Wickersham, “Recent Interpretation of the Sherman Act,” Michigan Law Review 19 (1911), 18–19; Pringle, Life and Times of William Howard Taft, II: 668. James C. German, Jr., “Taft, Roosevelt, and United States Steel,” Historian 34 (1972), 598–613. Pringle, Life and Times of William Howard Taft, II: 670. German, “Taft, Roosevelt, and United States Steel,” 610, 606; [Theodore Roosevelt] “The Steel Corporation and the Panic of 1907,” Outlook, 19 Aug. 1911, p. 849. Roosevelt, “The Trusts, the People, and the Square Deal,” Outlook, 18 Nov. 1911, pp. 649, 652.

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neither could exercise it.26 He soon receded from his criticism of the judiciary, taken aback by the opposition it provoked, and claiming that his argument had been “twisted out of its connection” by the press.27 He singled out “the metropolitan press which is owned and edited in the shadow of Wall Street” for depicting his speech as “an attack upon the judiciary as a whole, and incitement to riot, and an appeal to the passions of the mob.”28 Roosevelt took a more dramatic step the next day with a speech given at the dedication of John Brown Park in Osawatomie, Kansas. The “New Nationalism” speech was written by Gifford Pinchot and William Allen White. Roosevelt’s goal was to establish himself as the leader of the progressive forces (his principal rival was Senator Robert La Follette), and to save the Taft administration by continuing to support it. He intended the principles that he articulated in the speech to become the platform of the Republican party in 1912.29 It was, a Roosevelt biographer observed, “probably the most radical speech ever given by an ex-president.”30 To an audience of Grand Army veterans, Roosevelt claimed that “exactly as the special interests of cotton and slavery threatened our political integrity before the Civil War, so now the great special business interests too often control and corrupt the men and methods of our government for their own profit.” He claimed Lincoln as the source of his call for elevating “human rights” over “property rights.” He reiterated the “Square Deal” slogan from his presidency. He stood not “for fair play under the present rules of the game,” he said, but “for having those rules changed so as to work for a more substantial equality of opportunity and of reward for equally good service.” The emphasis on “substantial” equality of opportunity suggested a shift from a traditional equalopportunity to an equal-outcome standard. It “implies a policy of a far more active governmental interference with social and economic conditions in this country than we have yet had.” He decried several specific constitutional obstacles to such government activism. Federalism he scored as “the utter confusion that results from local legislatures attempting to treat national issues as local issues”; checks-and-balances he called “overdivision of governmental power.” He chided the judiciary and demanded “that it should be interested primarily in human welfare rather than property.” His thoroughgoing statism was expressed in the principle that “Every man holds his property subject to the 26

27

28 29

30

“The Nation and the States,” Speech before the Colorado Legislature, 29 Aug. 1910, in Roosevelt, The New Nationalism (New York: Outlook Co., 1911), 35; “Roosevelt in 1912 the Cry in Denver,” New York Times, 30 Aug. 1910, p. 1; “Mr. Roosevelt’s Attack on the Courts,” ibid., 8. He made a similar point while President – “Legislative Action and Judicial Decisions,” 4 Oct. 1906, Harrisburg, PA, TRN XVI: 70. Roosevelt to Henry Cabot Lodge, 12 Sep. 1910, LTR VII: 123; Cooper, The Warrior and the Priest, 150. “Criticism of the Courts,” 24 Sept. 1910, in The New Nationalism, 248. Robert S. La Forte, “Theodore Roosevelt’s Osawatomie Speech,” Kansas Historical Quarterly 32 (1966), 187–91. Mowry, Theodore Roosevelt and the Progressive Movement, 144–46.

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general right of the community to regulate its use to whatever degree the public welfare may require it.”31 Though these speeches sowed some confusion and alarm, Roosevelt supported both Taft and prominent insurgents in the 1910 elections.32 He backed away from the radicalism of his Osawatomie speech and angered progressives by his support for Taft policies, including the Payne–Aldrich tariff, and by campaigning for such Republican regulars as Warren G. Harding. His retreat from Bonapartism caused the press to lampoon him as “the man on two horsebacks.”33 Roosevelt refrained from overt opposition until Taft initiated the U.S. Steel suit nearly a year later. Roosevelt saw his chance after La Follette made a speech to the periodical publisher’s association in which his lack of composure sank his chances for the Republican nomination.34 Roosevelt “threw his hat into the ring” with a speech to the Ohio constitutional convention in February 1912, with the courts in his crosshairs.

roosevelt and the judiciary At Columbus, Roosevelt returned to the radicalism of Osawatomie, and added an emphasis on the recall of judicial decisions. Roosevelt had embraced the progressive program of “direct democracy” – direct primaries, direct election of U.S. senators, the initiative, referendum, and recall. Now he went beyond these procedural reforms to more substantive ones. He claimed, “The ends of good government in our democracy are to secure by genuine popular rule a high average of moral and material well-being among our citizens.”35 This discarded the Founders’ view that government’s purpose was to secure the natural rights of individuals – with their consent, surely, but not by any specific procedural means. But such objections Roosevelt excoriated as “the chief obstacle in the way” of “wise collective action. . . the mental attitude of those who still adhere to the doctrinaire theory of eighteenth century individualism.”36 Roosevelt called for making the Constitution “a living instrument and not a dead letter.”37 He dissociated himself from the popular recall of judges, though he endorsed the Massachusetts Constitution’s provision for the removal of judges by simple 31 32

33

34

35

36 37

“The New Nationalism,” 31 Aug. 1910, TRM XIX: 12–27. Jonathan Lurie, William Howard Taft: The Travails of a Progressive Conservative (Cambridge: Cambridge University Press, 2012), 132. “Taft is not Pleased by Roosevelt Plan,” New York Times, 3 Sep. 1910, p. 3; Mowry, Theodore Roosevelt and the Progressive Movement, 150; “Progressive Republicanism,” 5 Nov. 1910, TRM XIX: 68. “Spoke Over Two Hours,” “La Follette Ill; Makes No Excuses,” New York Times, 4 Feb. 1912, p. 7. “A Charter of Democracy,” 12 Feb. 1912, in TRM XIX: 169. For a modern expression of the “high average” idea, see Christopher Lasch, The Revolt of the Elites and the Betrayal of Democracy (New York: Norton, 1995). “Nationalism and the Working Man,” 4 Feb. 1911, TRM XIX: 104. “A Charter of Democracy,” 184. He attributed this phrase to John Marshall.

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majority of the legislature. Rather, he favored the recall of judicial decisions, and claimed that Lincoln had effectively proposed this in response to Dred Scott. The judicial-recall idea probably ended any possibility that Roosevelt could win the 1912 Republican nomination.38 Roosevelt’s focus on the judiciary largely resulted from the New York decision of Ives v. South Buffalo Railway Co., which struck down a state workers’ compensation act. The act required employers in designated industries to pay into an insurance fund that provided limited compensation to injured employees in almost all cases regardless of fault. Other employers could join the fund or face lawsuits for unlimited damage awards without the common-law defenses of assumption-of-risk, contributory negligence, and fellow-servant. This strict-liability act was part of a long-term effort by the progressives to change common-law rules of tort into a system of social insurance – to eliminate the element of negligence or fault altogether and shift the costs of industrialism from workers onto industrial producers and consumers.39 States rapidly adopted worker compensation acts in the 1910s, but these acts also aided employers who saw state courts becoming more proplaintiff in common-law cases. Roscoe Pound observed in 1910 that the courts, and especially juries, had mitigated the law of employee accidents. Employers hoped that a system of social insurance would remove the uncertainty and larger awards that negligence suits could produce. They welcomed a system that prevented them from being “amerced by the jury in inordinate verdicts,” as another law professor put it. Moreover, larger and more efficient firms gained an advantage under the new system which, like the Meat Inspection Act and other regulations, fell more heavily on their smaller, less efficient competitors. Thus the adoption of workers compensation as a progressive achievement for the underdog is something of a myth.40 The New York high court unanimously struck down the state compensation act. “The statute, judged by our common-law standards is plainly revolutionary,” it held. The Court admitted that common law rules of negligence had developed harsh tendencies, but also recognized that these rules had been ameliorated in recent years. The Court did not want to stand athwart “any plan for the beneficent reformation” of the common law. It also astutely 38

39

40

Stephen Stagner, “The Recall of Judicial Decisions and the Due Process Debate,” American Journal of Legal History 24 (1980), 257–72; Mowry, Theodore Roosevelt and the Progressive Movement, 217; Schambra, “Elihu Root,” 112; Cooper, The Warrior and the Priest, 144, 158. Duane A. Smith, “Colorado and Judicial Recall,” American Journal of Legal History 7 (1963), 200; George L. Priest, “The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law,” Journal of Legal Studies 14 (1985), 461–527. Roscoe Pound, “Law in Books and Law in Action,” American Law Review 44 (1910), 16; Ray A. Brown, “Police Power – Legislation for Health and Personal Safety,” Harvard Law Review 42 (1929), 890; Barbara Steidle, “Conservative Progressives: A Study of the Attitudes and Role of Bar and Bench, 1905–12” (Ph.D. diss., Rutgers University, 1969), 199–206; Price V. Fishback and Shawn Everett Kantor, “The Adoption of Workers’ Compensation in the United States, 1900–30,” Journal of Law and Economics 41 (1998), 316, 323, 325; Rachel M. Janutis, “The Struggle over Tort Reform and the Overlooked Legacy of the Progressives,” Akron Law Review 39 (2006), 954.

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recognized the social-insurance aim of the law. Nevertheless, such a change was impossible under the New York and United States Constitutions’ due process clauses. “In its final and simple analysis [the act] is taking the property of A and giving it to B.” Justice Edgar Cullen more forthrightly concurred that liability without fault was contrary to the principles of natural justice.41 The decision caused Roosevelt to renew his campaign to curb the courts. He saw that the English had brought the House of Lords to heel and sought a similar means to control American judges.42 Though he preferred the recall of judicial decisions, he liked the idea of legislative removal of judges, not for impeachable offenses, “but because the people no longer think him the right kind of public servant.”43 “The people themselves should be given the chance within a reasonable time to pass on the opinions of the judges,” he said shortly after Ives had been rendered, “and if they so desire in effect to construe the desired law as being constitutional.”44 The majority should be able “easily and with reasonable speed, to reverse such outrageous misconstruction of the Constitution by the judges.” He charged that the court’s philosophy was “as outworn as flint-lock muskets would be in fighting a modern foe,” and claimed that his call for a new social and economic philosophy was no more an attack on the judiciary than the refusal to fight the Spanish-American War with Civil War-era muskets was an attack on the War Department.45 He privately denounced the New York court for “interpretations so narrow, so arrogant, and so technical as to prove an almost complete bar to legislation for social betterment.”46 Ives quickly joined Lochner in the progressives’ gallery of judicial horrors, notwithstanding the ease with which the case was overturned. Ives did little to deter the workmen’s compensation movement. The New York legislature passed a constitutional amendment permitting workers’ compensation acts in 1912. Voters ratified it the next year, and the New York Court of Appeals unanimously upheld a new act in 1915, as did the U.S. Supreme Court two years later.47 This Lincolnian solution, within established constitutional bounds, suggests that a broad popular consensus existed on this subject, while such a consensus did not support other progressive reforms.48 Many other states took similar action; the Ohio convention where Roosevelt launched his Court attack enacted a similar 41 42

43

44

45 46 47

48

Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911), 285, 292, 294, 296, 298, 319. Roosevelt to Cecil Arthur Spring Rice, 22 Aug. 1911, LTR VII: 332. Roosevelt had opposed the recall of judges in “The Folly of the Recall,” Outlook, 19 Aug. 1911, p. 852. Roosevelt to Charles McCarthy, 27 Nov. 1911, ibid., 424; Roosevelt to George Uriel Crocker, 19 Nov. 1912, ibid., 651. “The Conservation of Womanhood and Childhood,” New York, 20 Oct. 1911, TRN XVI: 201, reiterated in “Judges and Progress,” Outlook, 6 Jan. 1912, pp. 40–48; “Roosevelt on the Courts,” New York Times, 6 Jan. 1912, p. 2. “The Conservation of Womanhood and Childhood,” 203–04. Roosevelt to Charles Dwight Willard, 28 Oct. 1911, LTR VII: 427. Jensen v. Southern Pacific Co., 215 N.Y. 514 (1915); White v. New York Central & Hudson River R.R. Co., 216 N.Y. 653 (1915); New York Central v. White, 243 U.S. 188 (1917). Peter J. Galie, Ordered Liberty: A Constitutional History of New York (New York: Fordham University Press, 1996), 206.

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amendment to that state’s constitution. If anything, Ives showed the efficacy of existing constitutional provisions in maintaining a constitutional popular sovereignty.49 Taft, on the other hand, displayed his beliefs about judicial integrity when he vetoed the bill to admit Arizona as a state. Its proposed constitution contained a provision for the recall of judges. Taft vetoed it because it would destroy judicial independence and “subject the rights of the individual to the possible tyranny of a popular majority.” He warned against unrestrained democracy. “A popular government is not a government of a majority, by a majority, for a majority of the people. It is a government of the whole people, by a majority of the whole people under such rules and checks as will secure a wise, just, and benevolent government for all the people,” as Aristotle had distinguished a “democracy” from a “polity.” No “lover of popular government can deny that the unbridled expression of the majority of a community converted hastily into law or action would sometimes make a government tyrannical and cruel. Constitutions are checks upon the hasty action of the majority.” He admitted “individual instances of a hidebound and retrograde conservatism on the part of courts. . . but they are not many, and do not call for radical action.” The American exercise of judicial review “is unique in the history of governments, and its operation has attracted and deserved the admiration and commendation of the world.”50 Progressives denounced the veto as opposed to “the basic principle of popular government” and insisted that “the cure for the ills of democracy is more democracy.”51 Arizona dropped the judicial recall provision from its constitution, won admission, and then amended its constitution to reinstate it. However, this part of the direct democracy movement steadily declined after 1920 until the 1960s, and the Rooseveltian campaign for an easily amended U.S. Constitution was permanently defeated.52

schism The judicial issue provoked Taft to fight for renomination, determined to defend the Constitution and two institutions that he believed essential to its operation – courts and parties. In January 1912 he told a bar association meeting, “The question of whether a people is fitted for popular self-government is determined by the ability of that people to place on itself the restraints by which the minority 49

50 51

52

John R. Commons, History of Labor in the United States, 1896–1932, 4 vols. (New York: Augustus M. Kelley, 1966 [1918–1935]), III: 575; Janutis, “The Struggle over Tort Reform,” 956; J. Hampden Dougherty, “Substitutes for the Recall of Judges,” Proceedings of the Academy of Political Science in the City of New York 3 (1913), 149; Janet S. Lindgren, “Beyond Cases: Reconsidering Judicial Review,” Wisconsin Law Review 3 (1983), 596, 615, 636. “Veto Message,” 22 Aug. 1911, in MPP XVII: 7636, 7638–39, 7643, 7640. “Vetoing Popular Government,” La Follette’s Weekly Magazine, 26 Aug. 1911, p. 3; “The Statehood Veto: A Report and Interpretation,” Outlook, 26 Aug. 1911, p. 912. Duane, “Colorado and Judicial Recall,” 203, 209; Kenneth P. Miller, Direct Democracy and the Courts (Cambridge: Cambridge University Press, 2009); Schambra, “Elihu Root,” 311.

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shall receive justice despite the majority.”53 Taft was hardly an uncritical apologist for the judiciary, noting that “The common law, in many respects admirable, in many respects calculated to arouse the individuality of each person, nevertheless embraced some rather hard doctrine. It seemed to favor the view, ‘Every man for himself and let the devil take the hindmost.’”54 But Roosevelt’s proposal “lays the ax at the foot of the tree of well-ordered freedom” and subjected rights “to the fitful impulse of a temporary majority of an electorate.” Like many progressives, Taft saw the need to “destroy the undue advantage of special privilege and of accumulated capital, and. . . from time to time, to limit or narrow the breadth of constitutional guaranties in respect of property,” but would do so by formal amendment.55 In April 1912, Taft responded to Roosevelt personally, telling a Boston audience, “One who so lightly regards constitutional scruples, and especially the independence of the judiciary, one who is so naturally impatient of legal restraints, and of due legal procedure, and who has so misunderstood what liberty regulated by law is, could not safely be trusted with successive presidential terms.”56 Roosevelt’s judicial remedy was “the wildest suggestion with respect to constitutional government that has ever been created in the brain of man.”57 The recall of judicial decisions “will upset our whole constitutional government.” It amounted to “suspending the Constitution. . .. The job he describes is a job of revolutionizing our present social system. He is going to have a millennium.”58 The recently closest of friends now denounced one another as “puzzlewits” and “honeyfuglers,” tearing the Republican party apart.59 While Roosevelt marshaled his forces in person at the Republican convention in Chicago, Taft maintained the tradition of presidential detachment. The Taft regulars kept control of the convention and, since the La Follette followers would not cooperate with the Roosevelt camp, they chose Elihu Root as the chairman. Root’s keynote address praised Taft’s progressive achievements and emphasized the need for party discipline. “Without organized parties, having these qualities of coherence and loyalty, free popular government becomes a confused and continual conflict.” Seeing the danger of excessive democracy and nationalism in Roosevelt’s plebiscitary bid, Root said “We will maintain the power and honor of the nation,

53

54 55

56

57 58 59

“Taft Denounces Recall of Judges,” New York Times, 21 Jan. 1912, p. 1; William G. Ross, “The Role of Judicial Issues in Presidential Campaigns,” Santa Clara Law Review 42 (2002), 400. “Address of President Taft,” Washington, DC, 4 Jun. 1912, Taft Papers, reel 570. Taft, “The Judiciary and Progress,” Toledo, OH, 8 Mar. 1912, Taft Papers, reel 580; “Taft Shows Peril in Roosevelt Policy,” New York Times, 9 Mar. 1912, p. 1. “Mr. Taft Speaks Out,” New York Times, 26 Apr. 1912, p. 10; Pringle, Life and Times of William Howard Taft, 781. “Address of President Taft,” Bel Air, MD, 4 May 1912, Taft Papers, reel 580. “Address of President Taft,” Caldwell, OH, 13 May 1912, Taft Papers, reel 570. Lewis L. Gould, “Return of the Rough Rider,” Smithsonian 39 (Aug. 2008), 44.

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but we will observe those limitations which the Constitution sets for the preservation of local self-government.”60 Root laid out the fundamental difference between the regular and the progressive Republicans in their estimates of human nature and the extent to which people could be trusted with power. The best men and the best acts, if “done by usurping powers confided to another department or another officer. . . opens the door for the destruction of liberty. The door opened for the patriotic and wellmeaning to exercise power not conferred upon them by law is the door opened also to the self-seeking and ambitious.”61 Roosevelt, in contrast, argued that too many obstacles ought not be placed in the path of majorities to rule. “It is impossible to invent constitutional devices which will prevent the popular will from being effective for wrong without also preventing it from being effective for right.”62 Where Roosevelt believed that the American people had developed to the point that constitutional restraints were no longer necessary, Root and Taft still saw the causes of faction as “sown in the nature of man.”63 This view reflected a more traditional religious view that original sin required humility and limited the confidence that we should place in government. It rejected the boundless millennial optimism of the progressives, who rallied to Roosevelt’s claim that “We stand at Armageddon, and we battle for the Lord.”64 “There can be no free government in which official power is not limited,” Root noted, “and the limitations on official power can be preserved only by rigorously insisting on their observance.” He was alert to the moral and religious underpinnings of these constitutional principles. “We will keep the covenant that our fathers made,” he continued. “We come from a God-fearing people, and we have learned the truth taught by religion that all men are prone to error, are subject to temptation, are led astray by impulse.” Reclaiming the Lincoln legacy that Roosevelt had so often appropriated, he denied that “government by the people” meant unrestrained direct democracy. “Our party was born in protest against the extension of a system of human slavery approved and maintained by majorities.”65 “A majority,” as Lincoln put it in his first inaugural, “held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only

60

61 62 63 64

65

“Address of the Temporary Chairman,” Official Report of the Proceedings of the Fifteenth Republican National Convention (New York: Tenny, 1912), 88. See also Root, “Experiments in Government and the Essentials of the Constitution,” North American Review 198 (1913), 1– 17, 257–73. “Address of the Temporary Chairman,” 98. “A Charter of Democracy,” 167. Schambra, “Elihu Root,” 157, 183. “A Confession of Faith,” Chicago, 6 Aug. 1912, in Progressive Principles by Theodore Roosevelt: Selections from Addresses Made During the Presidential Campaign of 1912, ed. Elmer Youngman (New York: Progressive National Service, 1913), 173; Norman Wilensky, Conservatives in the Progressive Era: The Taft Republicans of 1912 (Gainesville: University of Florida Press, 1965), 39–51. “Address of the Temporary Chairman,” 99.

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true sovereign of a free people.”66 An independent judiciary supplied a necessary adjunct of this constitutional system. “The judges will not be punished for honest decisions; their judgments will be respected and obeyed.”67 Root’s stolid conservatism enraged Theodore Roosevelt. According to William Allen White, the former president said that he was ready for violence at the convention, and “I wouldn’t have wasted a bullet on a policeman. I would have got Root and got him quick.”68 Albert Beveridge’s keynote speech at the Progressive Party convention in August 1912 offered a vivid contrast to Root’s constitutionalism. The former Indiana Senator called for “equal rights as a fact of life instead of a catch-word of politics” and “the actual rights of men,” echoing the progressive belief that the natural rights theory of the founding was out of date. It suggested the move from equality of opportunity to equality of result heard in T.R.’s New Nationalism speech. “The Progressive motto,” Beveridge said, “is ‘pass prosperity around.’” The government should have the power to ensure that “there ought never to be in this republic a single day of bad business, a single unemployed workman, a single unfed child.” The party offered to women, he said, “the chivalry of the State.” Above all, the new party believed “that the Constitution is a living thing, growing with the people’s growth, strengthening with the people’s strength.”69 After his nomination, Taft retired to his summer vacation home. This decision not to campaign was the sincerest expression of his principles, his opposition to the anti-party, candidate-centered progressive movement. The conservative Republicans believed that it was more important to remain a constitutional party, and to defeat Roosevelt, than it was for the party to win.70 Taft made only one speech, from his vacation house, at the end of September. Even more than the tariff and economic prosperity, what was at stake was “the preservation of the institutions of civil liberty as they were handed down to us by our forefathers in the Constitution.” The Progressive Party was based not on any principle at all, but primarily to satisfy “personal ambition and vengeance.” It had embraced “every fad and theory, some of them good, some of them utterly preposterous and impracticable, some of them as socialistic as anything that has been proposed in the countries of Europe.” In their mania for reform they displayed “an entire willingness to destroy every limitation of constitutional representative government.”71 The Nation echoed this, saying that progressivism was defined not by any particular issues, but by “impatience of any such restraints as are imposed by a written constitution.”72 The Republican crack-up opened the door for a new progressive, Woodrow Wilson. 66

67 68 69

70 71 72

“First Inaugural Address,” 4 Mar. 1861, in Selected Writings and Speeches of Abraham Lincoln, ed. T. Harry Williams (location of publisher unknown: Hendricks House, 1980 [1943]), 120. “Address of the Temporary Chairman,” 100. William Allen White, The Autobiography of William Allen White (New York: Macmillan, 1946), 494. “The Invisible Government,” 5 Aug. 1912, in The Birth of the New Party or Progressive Democracy, ed. George Henry Payne (Naperville, IL: J. L. Nichols, 1912), 283, 289–90, 299–301. Anderson, William Howard Taft, 194; Schambra, “Elihu Root,” 282. “Taft Opens Attack on the Third Party,” New York Times, 29 Sep. 1912, p. 1. “Progress and the Constitution,” The Nation, 7 Nov. 1912, p. 424.

part iii LATE PROGRESSIVISM

1913–1933

11 Wilsonian Progressivism

a darwinian constitution The Taft–Roosevelt schism almost guaranteed the election of Woodrow Wilson. This most enigmatic of the three candidates appears in retrospect the most constitutionally radical. In his long academic career he had absorbed a good deal of German historicism. Wilson earned a Ph.D. at Johns Hopkins University, the institution founded to bring German research methods to the United States. He wrote in his first book, in 1885, that “We are the first Americans to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our own institutions as compared with the systems of Europe; the first to think of remodeling the administrative machinery of the federal government, and of forcing new forms of responsibility upon Congress.”1 A year later, Wilson observed the “contempt everywhere felt and expressed, outside of French national conventions, for a priori constitutions.” Much better was the unwritten English constitution, which had evolved gradually in response to changing circumstances. He credited the American founders for their attention to experience rather than to reason. But they still wrote a constitution, and ours “illustrates the congenital weakness of its family.” The real constitution was the internal, cultural “constitutional morality of our race,” he observed. “In one sense, all governments must be governments of men, not of laws.”2 He frequently emphasized the pragmatism of the American founders, and their responses to contingent circumstances rather than their devotion to abstract ideas. He said of the natural rights philosophy of the Declaration of Independence in 1911, “I am constantly reminding audiences. . . that the rhetorical introduction to the Declaration of Independence is the least part of it. . .. If you want to understand the real Declaration of Independence, do not read the preface.”3 1

2 3

Congressional Government: A Study in American Politics (Gloucester, MA: Peter Smith, 1973 [1885]), 27. “Responsible Government Under the Constitution,” Atlantic Monthly 57 (1886), 542–48. “Address to the Jefferson Club of Los Angeles,” 12 May 1911, PWW XXIII: 33–34; Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman & Littlefield, 2005), 3–6.

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He made an astounding observation in his last academic work, Constitutional Government (1908). “The government of the United States was constructed upon the Whig theory of political dynamics, which was a sort of unconscious copy of the Newtonian theory of the universe.” Montesquieu – a theoretical Frenchman, not a pragmatic Englishman – made the American founders conscious of the theory, which they followed “with genuine scientific enthusiasm.” But “the trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life.” The organic metaphor obviated the principle of the separation of powers. “No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose.” Wilson explained that modern conditions required government action that original constitutional restraints impeded. “There can be no successful government without leadership or without the intimate, almost instinctive, coordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice.”4 Wilson repeated most of this in his 1912 campaign speeches, adding that “All that progressives ask or desire is permission – in an era when ‘development,’ ‘evolution,’ is the scientific word – to interpret the Constitution according to the Darwinian principle.” The problem was that “Some citizens of this country have never got beyond the Declaration of Independence.”5 Wilson presented a more profound critique of the founders’ Constitution than anything uttered by Theodore Roosevelt. Remarkably, nobody in the Taft campaign noticed it. Their anti-Roosevelt passion blinded the Taft constitutionalists to the threat of Wilson, particularly as Wilson avoided the courts.

the administrative state Wilson’s 1887 article “The Study of Administration” became his most important academic work.6 In this essay, Wilson depicted the evolutionary progress of polities through three phases – absolutism, constitutionalism, and finally 4

5

6

Woodrow Wilson, Constitutional Government in the United States (New Brunswick, NJ: Transaction, 2002 [1908]), 56–57. The New Freedom: A Call for the Emancipation of the Generous Energies of a People (New York: Doubleday, Page, 1913), 48. Paul P. van Riper disputes this widely shared view. See “The American Administrative State: Wilson and the Founders – an Unorthodox View,” Public Administration Review 43 (1983), 477–90 and “The Politics-Administration Dichotomy: Concept or Reality?” in Politics and Administration: Woodrow Wilson and American Public Administration, ed. Jack Rabin and James S. Bowman (NY: Marcel Dekker, 1984).

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democracy, when “the people themselves undertake to develop administration.” America had reached this third stage. Wilson argued that administration could be separated from politics, in language that paralleled the traditional constitutionalist argument that law could be separated from politics.7 But his essay’s opacity on the point of the separation of politics and administration has spawned abundant scholarly controversy.8 With the people governing themselves, the power of the government could safely be unleashed. “There is no danger in power, if only it be not irresponsible,” he argued. Wilson had nothing clear to say about the constitutional question of the ends or purposes of government. As he rather dismissively put it, “Up to our own day all the political writers whom we now read had thought, argued and dogmatized only about the constitution of government,” and neglected administration.9 Wilson described administration almost completely in terms of methods and means rather than ends. This means/ends distinction was common in progressive social thought, related to Max Weber’s fact/value distinction. In Wilson’s view, politics established the ends, and administration dealt with the means toward those ends. This enabled him to reassure his readers that Americans could have Prussian efficiency without Prussian authoritarianism. He noted, “We borrowed rice, but we do not eat it with chopsticks.” Along the same lines, he argued, “If I see a murderous fellow sharpening a knife cleverly, I can borrow his way of sharpening the knife without borrowing his probable intention to commit murder with it.” Yet administration was also “through its greater principles indirectly connected with the lasting maxims of political wisdom, the permanent truths of political progress.” The old, second-stage constitutionalism rested on a belief in permanent principles of natural rights; the new, third-stage administrative stage understood the historically contingent character of politics.10 This famous article appeared exactly 100 years after the drafting of the Constitution, by a scholar who privately expressed his belief that “The American republic will in my opinion never celebrate another centennial. At least under the present Constitution and laws. Universal suffrage is at the 7

8

9 10

Woodrow Wilson, “The Study of Administration,” Political Science Quarterly 2 (1887), 204, 210. Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: Norton, 1991), 414. Politics and Administration, ed. Rabin and Bowman. Of particular interest is Robert D. Miewlad, “The Origins of Wilson’s Thought: The German Tradition and the Organic State,” arguing that Wilson’s incomplete grasp of German political theory accounts for the essay’s difficulty. For example, Wilson refers, without endorsing, Bluntschli’s call for the separation of administration from law as well as from politics, probably upon the positivist idea that law is nothing more than politics. Yet Bluntschli made no such distinction. Wilson here committed a “compound error” (22). Late nineteenth-century American historians similarly mistook the historicist idealism of Leopold von Ranke for a kind of scientistic objectivity. John Higham, History: Professional Scholarship in America (Baltimore: Johns Hopkins University Press, 1965), 99; Lloyd R. Sorenson, “Charles A. Beard and German Historical Thought,” Mississippi Valley Historical Review 42 (1955), 277. Wilson, “Study of Administration,” 198. Ibid., 220, 210; Pestritto, Woodrow Wilson, 104–05.

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foundation of every evil in this country.”11 One scholar aptly observes that “Wilson’s separation of politics and administration becomes, then, a means for maintaining the democratic veneer of popular government while giving to unelected administrators the wide berth they need to manage the complex business of national progress.”12

the 1912 campaign Wilson ran as a fairly conventional Democrat in 1912, and made statements that sounded conservative. In a 1907 “Credo” he wrote that “I regard any deviation from [the Constitution’s] true spirit and plain meaning, by ingenious interpretation or otherwise, as a direct blow at the nation’s life and integrity.” Wilson expressed his admiration for maximum individual liberty and “utmost freedom of contract.” “The Constitution guarantees to every man the right to sell his labor to whom he pleases at such price as he is willing to accept.”13 The Democratic platform of 1912 emphasized traditional, Southern and Western issues, principally the tariff, “the chief seat of privilege in the Untied States,” as Wilson called it, “the soil in which. . . combinations. . . most readily grew, and most rankly.”14 The Taft Republicans also emphasized the tariff. “We believe in maintaining the Constitution. . .. We are protectionists. . .. These two propositions cover a good deal of Republicanism,” the President said.15 The other principal issues in the campaign derived from the tariff, as the Democrats were fond of calling the tariff “the mother of the trusts,” and called for banking reform as a campaign against “the money trust.” Wilson showed signs of his respect for traditional limitations on governmental power that he had expressed in Constitutional Government. He noted that “the temptation to overstep the proper boundaries has been particularly great in interpreting the meaning of the words, ‘commerce among the several states.’” He cited calls in Congress for the abolition of child labor as an example. “If the power to regulate commerce between the states can be stretched to include the regulation of labor in mills and factories, it can be made to embrace every particular of the industrial organization and action of the country. The only limitations Congress would observe, should the Supreme Court assent to such obviously absurd extravagancies of interpretation, would be the limitations of 11 12 13 14

15

Diary entry, 19 Jun. 1876, PWW I: 143. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism, 230. “A Credo,” 6 Aug. 1907, PWW XVII: 335. National Party Platforms, 168; Lewis L. Gould, Four Hats in the Ring: The 1912 Election and the Birth of Modern American Politics (Lawrence: University Press of Kansas, 2008), x; “A Campaign Speech on New Issues,” Hartford, 25 Sep. 1912, PWW XXV: 242; “Wilson Finds Tariff the Root of All Evil,” New York Times, 24 May 1912, p. 6; Marc Winerman, “The Origins of the Federal Trade Commission: Concentration, Cooperation, Control, and Competition,” Antitrust Law Journal 71 (2003), 52. “Address of President Taft,” Washington, DC, 16 Aug. 1912, Taft Papers, reel 570.

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opinion and of circumstance.”16 That same year he observed that constitutional “questions are not taken very seriously now. . .. we have got impatient of constitutional restraint – that we regard it a little old-fashioned to ask what the government of the United States for example, has the right to do, and have fallen into the fashion of asking only what we would desire it to do.” He contradicted his 1887 claim that the American people were ready for unrestrained direct democracy, and warned against the rising idea that “constitutional restraints . . . are only for persons who are bringing themselves to political maturity,” and that “We have come to political maturity.” He bewailed the “perfect mania for regulation [that] has taken hold of us.” He expressed his belief that “the less administrative government the better,” that regulation ought to be conducted “by the courts and not by the executive officers of our state and federal governments.” He concluded that “the twenty-ninth clause of Magna Carta is just as permanent as any law of human nature, because it is founded in human nature.”17 Wilson observed that Roosevelt often claimed that his proposals for increased government power “must be adopted in order to stop the drift towards socialism in this country, and yet the very kinds of governmental regulation which are contemplated in such arguments are regulations which are themselves essentially socialistic in principle.”18 During the 1912 campaign, he drew Roosevelt’s fire by saying that “Liberty has never come from the government. . .. The history of liberty is a history of the limitation of government power, not the increase of it.” Wilson warned especially against the Progressive Party’s faith in administrative expertise to deal with the trusts. “Do these gentlemen dream that in the year 1912 we have discovered a unique exception to the movement of human history? Do they dream that the whole character of those who exercise power has changed, and that it is no longer a temptation?”19 Roosevelt tried to depict Wilson, along with Taft, as a reactionary adherent of laissez-faire. “This is a bit of outworn academic doctrine which has been kept in the schoolroom and the professorial study for a generation after it has been abandoned by all who had experience of actual life.”20 Finally, despite his prophetic “Study of Administration,” Wilson confessed that “What I fear. . . is a government of experts. God forbid that in a democratic country we should resign the task and give the government over to experts.”21 Yet he admitted that some kind of 16

17 18 19

20 21

Wilson, Constitutional Government, 170, 179; John Milton Cooper, Jr., The Warrior and the Priest: Woodrow Wilson and Theodore Roosevelt (Cambridge, MA: Harvard-Belknap, 1983), 120. “The Government and Business,” Chicago, 14 Mar. 1908, PWW XVIII: 36–39. Ibid., 39. “An Address to the New York Press Club,” 9 Sep. 1912, PWW XXV: 124; Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy (Lawrence: University of Kansas Press, 2009), 215; Gould, Four Hats in the Ring, 164. “Limitation of Governmental Power,” San Francisco, 14 Sep. 1912, TRWM XIX: 420. “Labor Day Address,” Buffalo, 2 Sep. 1912, PWW XXV: 78; “Ignore Party Labels, Wilson Tells Labor,” New York Times, 3 Sep. 1912, p. 3.

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administrative commission, such as Roosevelt called for, might be needed to address the trust issue.22

wilson and the judiciary Wilson’s attitude toward the judiciary helps explain the Taftites’ inattention to him. Unlike Roosevelt, Wilson never targeted the judiciary in general, nor did he ever complain about a specific decision, such as Lochner.23 He recognized the power of popular veneration for the courts. Congress could increase the size of the Court and allow the President to “pack” it, he noted in 1886. But such a stratagem would certainly fail, “simply because we share and contribute to that public opinion which makes such outrages upon constitutional morality impossible by standing ready to curse them.”24 He defended the Supreme Court against critics who contended that it no longer interpreted the Constitution as the founders would have interpreted it. “We have built a constitution which has proved admirably elastic,” he said in 1903. “It was feared that a written constitution was too rigid; but we are good lawyers, and a lawyer can always read any possible meaning into a document.”25 The Constitution was not a “straightjacket,” he noted the following year. “In its elasticity lies its chief greatness. There were blank pages in it, into which could be written pages that would suit the exigencies of the day.”26 Wilson had a much more accurate view of the turnof-the-century judiciary than most progressives, and more accurate than most of the historians who built up the progressive legend of a “laissez-faire judiciary.” In Constitutional Government, Wilson’s most mature analysis of American politics, he acknowledged that an independent judiciary was a necessary “balance wheel,” providing a final, non-political forum in which to settle political disputes. He contrasted this favorably to the English system of parliamentary sovereignty. Wilson expressed admiration for the broad reading that the nineteenthcentury Supreme Court had given to federal powers. Indeed, if anything, the Court had been too willing to extend congressional power, particularly during Reconstruction. Responding to “some German critics” who denounced the power of judicial review, he noted that no alternative existed under a written constitution. The American courts, he observed, had in fact been very deferential to the legislatures, “never setting its judgment or opinion against theirs in any case which admitted of reasonable doubt, but confining itself most scrupulously to its proper business of adjudicating individual rights. . .. And there has never been any serious friction between Congress and the courts.” And if any serious 22 23

24 25 26

“New England Tells Wilson He Will Win,” New York Times, 28 Sep. 1912, p. 3. Maxime Tourbe, “La Conception du Pouvoir Judiciare chez Woodrow Wilson: Le Réalisme Juridique à l’épreuve du Gouvernement des Juges,” Jus Politicum 4 (2010), 40. Wilson, “Responsible Government,” 544–45. “A Newspaper Report of an Address at Lowell, Massachusetts,” 3 Jan. 1903, PWW XVI: 315. “Wilson Says Elasticity Saves the Constitution,” New York Times, 20 Nov. 1904, p. 5.

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friction did arise, Wilson was unconcerned about the abuse of judicial power. “Congress could readily overcome a hostile majority in any court or in any set of courts, even in the Supreme Court itself, by a sufficient increase in the number of judges and an adroit manipulation of jurisdiction, and could with the assistance of the President make them to suit its own purposes.”27 He had abjured this “outrage upon constitutional morality” twenty years earlier. During the 1912 campaign, Wilson repeatedly asserted his preference for judicial rather than administrative law enforcement. While he belatedly and reluctantly came to endorse the initiative, referendum, and recall, he never embraced the recall of judges or judicial decisions.28 He claimed that ordinary forms of removal sufficed for corrupt judges. Wilson trusted that “the judiciary of the United States is the last and ultimate safeguard of the things that we want to hold stable in this country.” And even if it should go wrong, “there are ways and ways of controlling” it, he suggested, principally by judicial selection. He also hinted that procedural difficulties in the courts could be met by “the creation of special processes and special tribunals.”29 He criticized Roosevelt’s judicial proposals, and countered that “Law has an infinite capacity for adjustment, providing those who administer the law have a capacity for adjustment.”30 He had more in common with Herbert Croly, who counseled progressives to see that there might be “much more to gain than to fear from the independence of the federal judiciary.”31 Columbia Professor Frank Goodnow took a similarly sober and far-sighted view of the judiciary, rare among progressives. In 1913, he provided a positive answer to the question, “Can a practically unamendable constitution, adopted in the conditions and under the influences of the political thought prevailing at the end of the eighteenth century, be adapted by judicial interpretation to the needs and thought of the twentieth century without causing us to lose the advantages which are commonly regarded as attached to a written constitution?” He recognized the Court’s decisions in the lottery and pure-food cases as signs that it already was engaged in progressive constitutional interpretation, and that “very few” of the Supreme Court’s decisions gave progressives genuine cause for disappointment.32 27

28

29 30 31

32

Wilson, Constitutional Government, 142, 158, 168, 161, 165. Wilson had made a similar observation in Congressional Government, 45–46. Wilson to Richard Heath Dabney, 16 Nov. 1911, PWW XXIII: 551; Kenneth P. Miller, Direct Democracy and the Courts (Cambridge: Cambridge University Press, 2009), 27; Daniel D. Stid, The President as Statesman: Woodrow Wilson and the Constitution (Lawrence: University Press of Kansas, 1998), 72; William A. Schambra, “Elihu Root, the Constitution, and the Election of 1912” (Ph.D. diss., Northern Illinois University, 1983), 305. “A Campaign Speech on New Issues,” 240–42. “Woodrow Wilson Raps Roosevelt’s Court Criticism,” Jersey City, 21 Sep. 1910, PWW XXI: 147. Herbert Croly, The Promise of American Life (New York: E. P. Dutton, 1963 [1909]), 356, 200. See also Paul Carrese, “Montesquieu, the Founders, and Woodrow Wilson: The Evolution of Rights and the Eclipse of Constitutionalism,” in The Progressive Revolution in Politics and Political Science, ed. John Marini and Ken Masugi (Lanham, MD: Rowman & Littlefield, 2005), 149–54. Frank J. Goodnow, “Judicial Interpretation of Constitutional Provisions,” Proceedings of the Academy of Political Science in the City of New York 3 (1913) 6, 12, 14.

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Though the election of 1912 brought an end to the Republican hegemony established in 1896, it was less dramatic than it has been depicted. Voter turnout actually declined, and the Democratic party did no better than in 1908.33 Taft concluded in 1913 that while the Democrats did have “some ambition toward progressiveness,” in contrast to Roosevelt they would be “conservative enough to preserve constitutional limitations.”34 The state legislatures ratified the Sixteenth Amendment the month before Wilson’s inauguration, and the Seventeenth Amendment the month after. The Sixteenth can be said to have corrected an erroneous, or at least a highly questionable, interpretation of the Supreme Court.35 The Seventeenth, on the other hand, presented a fundamental alteration to the structure of the Constitution. Progressives claimed that direct election would strike a blow at the corporations and political machines that corrupted and dominated the state legislatures. Notably, Woodrow Wilson, as governor of New Jersey, and Franklin D. Roosevelt, as a freshman New York senator, led efforts to reject the senatorial candidates of their state’s Democratic machine. But these corrupt influences were, as with much progressive publicity, quite exaggerated – as was the claim that legislative deadlocks in Senate elections brought state legislative business to a halt. The most fanciful of the progressives’ arguments in favor of direct election was that it would restore the choice of Senators from the “interests” to the “people” – part of their general call for greater democracy. Most of the abuses of the existing system were themselves the result of the democratization of state constitutions since the Jacksonian era. Moreover, most states had already adopted de facto direct election. The urban political machines such as Tammany Hall were all in favor of the amendment. It won the necessary two-thirds majority in the Senate itself, and was ratified by three-fourths of the state legislatures that were said to be the root of the problem. The Seventeenth Amendment seemed more like the final act in a long process of democratization than a radical new departure.36 As journalist William Allen White put it, “A sentiment strong enough to dominate legislatures and congresses, and demand a constitutional amendment, does not need the amendment.”37

33 34 35

36

37

Cooper, The Warrior and the Priest, 205. Schambra, “Elihu Root,” 305. For a contrary view, see Erik M. Jensen, “The Taxing Power, the Sixteenth Amendment, and the Meaning of ‘Incomes,’” Arizona State Law Journal 33 (2001), 1057–1158. C. H. Hoebeke, The Road to Mass Democracy: Original Intent and the Seventeenth Amendment (New Brunswick, NJ: Transaction, 1995), 78, 84–91, 106, 135; John D. Buenker, “The Urban Political Machine and the Seventeenth Amendment,” Journal of American History 56 (1969), 305–22; Roger G. Brooks, “Garcia, the Seventeenth Amendment, and the Role of the Supreme Court in Defending Federalism,” Harvard Journal of Law and Public Policy 10 (1987), 206; Todd J. Zywicki, “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment,” Oregon Law Review 73 (1994), 1025. William Allen White, The Old Order Changeth: A View of American Democracy (New York: Macmillan, 1912), 208.

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It has been even more difficult for scholars to discern the effects of the Seventeenth Amendment. It seemed to have no immediate impact, as all twentyfive incumbent senators were re-elected in 1914. Turnover began to increase after that, but the long-term trend was toward longer Senate terms. In the long run it also centralized power and weakened the states, though this was neither its proponents’ hope nor its opponents’ fear in the early twentieth century.38 It did appear to increase the influence of nationally diffuse interest groups, and some congressional activity in forthcoming years (farm and labor legislation, and the confirmation of Louis Brandeis to the Supreme Court) indicated this effect. Some scholars have argued that special interests desired direct election, to augment their power by breaking down the institutional barriers to congressional lobbying that the founders had designed.39 Progressive rhetoric about “democracy” often obscured profound progressive suspicion of popular government, since progressives were more interested in powerful government than democratic government. Indeed, the successful use of the formal amending process weakened progressive arguments that the Constitution was unworkably inflexible.40 Perhaps what made the Seventeenth Amendment a “progressive” measure was its weakening of constitutional limitations, which stood in the way of democratic, monarchical, oligarchical, or technocratic power alike.

38

39

40

Hoebeke, Road to Mass Democracy, 190; Sara Brandes Crook and John R. Hibbing, “A Not-SoDistant Mirror: The Seventeenth Amendment and Congressional Change,” American Political Science Review 91 (1997), 849; William Bernhard and Brian R. Sala, “The Remaking of the American Senate: The Seventeenth Amendment and Ideological Responsiveness,” Journal of Politics 68 (2006), 34–46; Brooks, “Garcia, the Seventeenth Amendment, and the Supreme Court,” 200, 209. Zywicki, “Senators and Special Interests”; Zywicki, “Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Programs,” Cleveland State Law Review 45 (1997), 165–234; Michael Greve, The Upside-Down Constitution (Cambridge, MA: Harvard University Press, 2012). Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (New York: Free Press, 2003); Herbert Croly, Progressive Democracy (New Brunswick: Transaction, 1998 [1914]), 231.

12 The New Freedom

the tariff The new president sounded like a social-justice progressive in his inaugural address. “We have been proud of our industrial achievements, but we have not hitherto stopped thoughtfully enough to count the human cost, the cost of lives snuffed out, of energies overtaxed and broken, the fearful physical and spiritual cost to the men and women and children upon whom the dead weight and burden of it all has fallen pitilessly the years through.” He promised that the government, which had been too often used for “private and selfish purposes,” would now respond to “the groans and agony of it all.”1 But Wilson’s legislative program, usually called “the New Freedom,” was rather modest. He led with tariff reform, among the oldest of Democratic causes. Wilson’s dramatic gesture of appearing in person before Congress to make his appeal for tariff reduction grew out of his political theory of expanded executive power and party leadership, but it also revived a practice of George Washington and John Adams. The tariffreduction program assumed the antebellum argument that a protective tariff was unconstitutional. Some progressives disliked the Democratic position of a tariff for revenue only, since the tariff was a “regressive” tax paid by consumers. They favored an income tax to shift the burden of taxation from the poor to the rich. But the first income tax, made possible by the ratification of the Sixteenth Amendment in 1913, was only slightly more progressive than the 1894 act, exempting income under $3,000 and imposing a top rate of 7 percent on incomes over $500,000. Wilson had focused on trust-busting in the 1912 campaign, but came illprepared to address this issue. Wilson first emphasized criminal prosecution of individuals, rather than regulation of corporate practices. He also carried the baggage of New Jersey, the “traitor state” whose 1889 holding-company law virtually created the trust problem. Roosevelt had chided him about this during the 1912 campaign, and Wilson responded by inducing the New Jersey 1

“Inaugural Address,” 4 Mar. 1913, M&PP XVIII: 7869.

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legislature to reform the law after the election.2 But his chief biographer called him “ignorant of the law and uninterested in the details.”3 He came to rely on Louis D. Brandeis during the 1912 campaign. This compounded the problem, for Brandeis’s analysis of industrial structure was far inferior to Roosevelt’s or Taft’s. After the fable of the humanitarianism of Oliver Wendell Holmes, Jr., Brandeis’s reputation for economic insight is among the most implausible of progressive legends.4 Recent scholarship has led even Brandeis’s admirers to admit his economic ignorance, though they continue to laud his moral and political motives. He may have been wrong, that is to say, that large-scale firms were inherently less efficient, or that they had become large by means that were illegal, unethical, or harmed consumers. Nevertheless, the moral and political effects of bigness – the curtailing of economic independence and opportunity, the corruption of politics – were lamentable. But Brandeis misunderstood the effects as much as he did the causes. Business did not become more concentrated in the early twentieth century, nor did it choke off opportunity. “The trend is altogether clear,” one historian notes. “The manufacturing sector of the economy after the period of numerous mergers in 1897–1901 was growing increasingly competitive. The idea that economic opportunities were closed to middle-level wealth is not in accord with the facts.”5 Wilson’s lack of economic sense, aggravated by Brandeis’s passionate but analytically weak tutelage, led them to endorse policies that did more harm than good to the small businessmen for whom they claimed to speak. The biggest businesses made no objection to a reduction of the tariff. Their small competitors believed that the tariff was what kept them in business, and lobbied against the Underwood tariff. After campaigning against the tariff as “the mother of the trusts,” the Democrats discovered that it was actually “the mother of competition.”6 Reducing protection would impel the large, efficient firms to become even more efficient and drive small, inefficient firms out of business. No evidence indicates that Wilson and Brandeis deliberately pursued policies that they knew would strengthen “the interests” whom they claimed to oppose. The policy shift rather exposes the economic faultiness of Brandeis’s “bigness” mania. But 2

3 4

5

6

“Cheer Hughes as Next President,” New York Times, 5 Jul. 1907, p. 1; John F. Mahoney, “Backsliding Convert: Woodrow Wilson and the ‘Seven Sisters,’” American Quarterly 18 (1966), 72, 79; Christopher Grandy, “New Jersey Corporate Chartermongering, 1875–1929,” Journal of Economic History 49 (1989), 677–92. Arthur S. Link, Wilson: The New Freedom (Princeton: Princeton University Press, 1956), 34–36. It is repeated in Melvin I. Urofsky, “Wilson, Brandeis, and the Trust Issue, 1912–14,” MidAmerica 49 (1967), 5; Arthur S. Link, Wilson: The Road to the White House (Princeton: Princeton University Press, 1947), 488; Frank R. Strong, Substantive Due Process: A Dichotomy of Sense and Nonsense (Durham: Carolina Academic Press, 1986), 234. Gabriel Kolko, Triumph of Conservatism: A Reinterpretation of American History, 1900–16 (New York: Free Press, 1963), 54; Stanley Lebergott, The Americans: An Economic Record (New York: Norton, 1984), 316. Frank Burdick, “Woodrow Wilson and the Underwood Tariff,” Mid-America 50 (1968), 282; Martin J. Sklar, “Woodrow Wilson and the Political Economy of Modern United States Liberalism,” Studies on the Left 1 (1960), 38.

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enough circumstantial and coincidental evidence exists to generate a plausible argument that Wilson and other progressives were actually “corporate liberals.”7 Brandeis led Wilson to reject Roosevelt’s policy of “regulated monopoly” in favor of one that he called “regulated competition.” Brandeis represented one side of the American antitrust tradition, the one that viewed antitrust law’s goal as serving producer-competitors rather than consumer welfare and competition. Even if a big firm had resulted from greater efficiency (something Brandeis would never believe), his principal goal was to preserve as many producers as possible.8 Indeed, bigness, not monopoly, was the problem. Brandeis actually cherished small, local monopolies, what the French called morcellement.

the federal reserve act Wilson took up banking and currency reform first. The American banking system produced a limited and inflexible money supply, the currency being tied to gold or U.S. bonds purchased by national banks. The system brought on periodic “panics” as depositors rushed to convert their deposits into currency. Many looked to a European-style central bank as a solution. As Roosevelt put it in 1910, “The people of the United States suffer from periodical financial panics to a degree substantially unknown among the other nations which approach us in financial strength. There is no reason why we should suffer what they escape.”9 Roosevelt’s Treasury Secretary, Leslie Shaw, had begun to act as a central banker. He transferred federal deposits from the independent Treasury to national banks to relieve pressure, in apparent violation of law, and bought and sold U.S. bonds to influence the money supply. One critic attacked the “innovations and stretchings of his constitutional powers” that marked his effort to destroy the independent treasury system. By “audaciously stretching the natural prerogatives of his high office,” he exercised more power than European central bankers.10 His more orthodox successor, George Cortelyou, disclaimed any desire to be the “financial caretaker of the country,” believing this to be the job of private commercial banks.11 The private bankers did take 7

8

9 10

11

Kendrick Clements, The Presidency of Woodrow Wilson (Lawrence: University Press of Kansas, 1992), 38; Melvin I. Urofsky, Big Steel and the Wilson Administration: A Study in BusinessGovernment Relations (Columbus: Ohio State University Press, 1969), 47; Alan L. Seltzer, “Woodrow Wilson as ‘Corporate-Liberal’: Toward a Reconsideration of Left Revisionist Historiography,” Western Political Quarterly 30 (1977), 183–212; Ellis W. Hawley, “The Discovery and Study of a ‘Corporate Liberalism,’” Business History Review 52 (1978). Thomas K. McCraw, “Rethinking the Trust Question,” in Regulation in Perspective: Historical Essays, ed. McCraw (Cambridge, MA: Harvard University Press, 1981), 32. “The New Nationalism,” TRM XIX: 20. A. Piatt Andrew, “The Treasury and the Banks under Secretary Shaw,” Quarterly Journal of Economics 21 (1907), 519, 559. Richard H. Timberlake, Monetary Policy in the United States: An Intellectual and Institutional History (Chicago: University of Chicago Press, 1993), 186–97; Milton Friedman and Anna Jacobson Schwartz, A Monetary History of the United States, 1867–1960 (Princeton: Princeton

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steps to reform the panic-prone system. They established a series of clearinghouse associations to extend credit to members facing heavy withdrawals. These certificates provided de facto currency, and should have been subject to the prohibitive tax on state bank notes. But the government prudently tolerated them, seeing that they had helped to prevent bank failures in 1893 and 1907. The Aldrich–Vreeland Act of 1908 called for the issue of an “emergency currency” by a National Reserve Association, which preserved financial order when World War One broke out.12 But progressives distrusted the scheme of the private bankers, believing that a Wall Street “money trust” abetted other trusts. Significant inflation in the early twentieth century fed this belief. Prices rose nearly 50 percent between 1897 and 1914, due to the increase of the world gold supply.13 A congressional committee chaired by Louisiana Representative Arsène Pujo depicted a banking monopoly. Brandeis testified to the Pujo Committee, pushing his idea that big banks fomented monopoly by refusing credit to small competitors. He published his findings in a book, Other People’s Money and How the Bankers Use It. His general point – that money power was concentrated in New York – was fanciful. New York’s share of the national money market had fallen from 23 percent to 18 percent in the previous decade, and the city had little influence in the national money market. National banks grew slowly in number between 1890 and 1900, while state banks began to outnumber them. The large national banks sought reform to relieve themselves from the proliferation of state banks. Brandeis provided scant evidence for his argument that banks starved small business of credit. Despite his reputed mania for “facts,” seen in the celebrated “Brandeis brief,” he often relied more on moral earnestness and assertion than on facts.14 Taft, though depicted as far behind Brandeis in economic acumen, was closer to the truth when he noted that “The country is somewhat more independent of Wall Street than it used to be.”15 Congress had established a National Monetary Commission after the panic of 1907 to study the issue of monetary reform, principally to provide a more “elastic” money supply, to avoid periodic panics. Southerners and Westerners

12 13 14

15

University Press, 1963), 149; Esther Rogoff Taus, Central Banking Functions of the U.S. Treasury, 1789–1941 (New York: Russell & Russell, 1943), 121. Timberlake, Monetary Policy, 197–205; Friedman and Schwartz, Monetary History, 170–72. Friedman and Schwartz, Monetary History, 677. Kolko, Triumph of Conservatism, 140; Lebergott, The Americans, 408; Eugene N. White, “The Political Economy of Banking Regulation, 1864–1933,” Journal of Economic History 42 (1982), 35; Lewis J. Paper, Brandeis (Englewood Cliffs, NJ: Prentice-Hall, 1983), 174; David P. Bryden, “Brandeis’ Facts,” Constitutional Commentary 1 (1994), 281–326. Brandeis’s experience with the United Shoe Machinery Company appears to have spawned his bank-monopoly impression. He had long defended United Shoe as a “good” monopoly, one whose control of the shoemachinery industry fostered competition among shoe manufacturers. This included United’s policy of “tying” – requiring lessors of its machines to use only United products. A rival shoemachine manufacturer, unable to get credit from Boston banks, sold out to United, and this caused Brandeis to have a change of heart. Henry F. Pringle, The Life and Times of William Howard Taft: A Biography, 2 vols. (New York: Farrar-Rinehart, 1939), 329.

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hoped that elasticity would make credit more easily available in their regions. The NMC proposed a reserve bank, owned and operated by private banks. The bank notes in the system would be secured not only by U.S. bonds (as under the National Currency Act) but also by the bank’s short-term loans, or commercial paper. Virginia Democrat Carter Glass proposed a bill along NMC lines in 1913. Wilson evaded the question during the 1912 campaign, saying that he believed that the NMC plan was “probably about 60 or 70 percent correct,” with no indication of what parts of it fell within that range.16 Again, he turned for advice to Brandeis, who counseled the president to insist on a presidentially appointed Federal Reserve Board whose notes would be obligations of the federal government.17 Congress worked these provisions into the bill. Brandeis disliked the fact that the bill did not prohibit interlocking directorates among banks, but hoped that a later, general antitrust act would address this problem. The bill provoked outrage among the populist wing of the party, which believed that it would “legalize the money trust.” While the “money trust” was a populist fantasy, it is true that the Act strengthened the power of large banks.18 Of all New Freedom legislation, the Federal Reserve Act most supports the “corporate liberal” idea.19 The Democrats had not adopted a reactionary position on banking as they had on the protective tariff. The Federal Reserve Act did not create a genuine, government-controlled “central bank,” but, though Democrats denied it, it certainly took a step in that direction. The Act conferred powers that the National Banking Acts had not given to its regulatory agency, the Office of the Comptroller of the Currency, although “the Fed” realized its potential power only years later. But the Federal Reserve Act did not establish any clear goals or standards for the exercise of this monetary power.20 Some, like Senator Elihu Root of New York, warned that this was a reckless delegation of a power to inflate the currency, which the American people had repeatedly repudiated. But after the acceptance of the Banks of the United States and the National Banking Act in the nineteenth century, the Federal Reserve System provoked no serious constitutional questions.21 16

17 18

19 20

21

Lawrence H. Chamberlain, The President, Congress and Legislation (New York: Columbia University Press, 1946), 316. Brandeis to Wilson, 14 Jun. 1913, LLDB III: 113. Though Brandeis wrote cryptically to his wife that “Other People’s Money seems pretty stupid now,” he republished the book in 1933. Brandeis’s Federal Reserve Act contributed to an increase in financial concentration between 1913 and 1933. Brandeis to Alice Goldmark Brandeis, 27 Feb. 1914, LLDB III: 259; Richard M. Abrams, Introduction to Brandeis, Other People’s Money, and How the Bankers Use It (New York: Harper, 1967 [1914]), xxix, xxxiv. Sanders, Roots of Reform, 237; Chamberlain, The President, Congress, and Legislation, 313. Jordan A. Schwarz, The New Dealers: Power Politics in the Age of Roosevelt (New York: Knopf, 1993), 12; Friedman and Schwartz, Monetary History of the United States, 193, 297. Brandeis, Other People’s Money, 60; Elihu Root, “The Banking and Currency Bill,” Senate speech of 13 Dec. 1913 (Washington: publisher unknown, 1913); Note, “The Constitutionality of Section II (K) of the Federal Reserve Act,” Harvard Law Review 29 (1916), 758–60; David McC. Wright, “Is the Amended Federal Reserve Act Constitutional? – A Study in the Delegation of Power,” Virginia Law Review 23 (1937), 629–53.

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the clayton antitrust act For the general antitrust act, Wilson again relied on Brandeis’s advice. They initially inclined to define monopolistic practices more precisely, to make enforcement surer and sterner.22 As Wilson told Congress, “Surely we are sufficiently familiar with the actual processes and methods of monopoly and of the many hurtful restraints of trade to make definition possible.” Evil practices “can be explicitly and item by item forbidden by statute in such terms as will practically eliminate uncertainty.”23 This statement betrayed a profound confusion. Small businessmen became alarmed at Alabama Representative Henry Clayton’s proposal to outlaw many common business methods. Brandeis and Wilson began to recognize that bigness seldom resulted from unethical practices.24 Brandeis also believed that Clayton’s bill went too far in its proscription of interlocking directorates, for he wanted small business to be able to work together to limit competition.25 Half of all Sherman Act prosecutions had been against “peripheral” firms, whose cartel-like agreements to limit competition were easier to identify and prosecute. As Brandeis put it, “The proper role of the government is to encourage not combination, but cooperation” – not giant holding companies, but middling cartels.26 He and Wilson began to realize that a stronger antitrust law might do more harm than good to their putative clients, the small businessman or, as Wilson put it, “not . . . the man who has made good, but . . . the man who is going to make good.”27 Brandeis’ morcellement vision of the ideal economy led him to lobby for a provision in the bill that would permit price fixing and prohibit volume discounts. He objected to the Supreme Court’s prohibition of price-maintenance agreements in the 1911 Dr. Miles case.28 This tension produced the watered-down Clayton Antitrust Act of 1914. It did not attempt to repeal the “rule of reason” and aggressively break up trusts. It did enumerate some specific illegal practices, such as tying and interlocking directorates, but only when these “substantially lessened competition or tended to promote monopoly.”29 The Act had the same negligible impact on American 22

23 24

25

26 27 28 29

Wilson, “A Credo,” 6 Aug. 1907, PWW XVII: 335; Brandeis, “Memo on La Follette Anti Trust Bill,” Dec. 1911, PWW XXV: 295. “Special Address,” 20 Jan. 1914, M&PP XVIII: 7916. George Rublee, “The Original Plan and Early History of the Federal Trade Commission,” Proceedings of the Academy of Political Science in the City of New York 11 (1926), 667–68; Melvin I. Urofsky, Louis D. Brandeis: A Life (New York: Pantheon, 2009), 389; Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge: Belknap, 1984), 122; Gerald Berk, Louis D. Brandeis and the Making of Regulated Competition, 1900–32 (Cambridge, MA: Cambridge University Press, 2009), 93. Jonathan Bean, Beyond the Broker State: Federal Policies Toward Small Business, 1939–61 (Chapel Hill: University of North Carolina Press, 1996), 20; Paper, Brandeis, 191. Brandeis to Charles R. Crane, 11 Nov. 1911, LLDB II: 512. “Gov. Wilson Now in Fighting Mood,” New York Times, 24 Sep. 1912. Paper, Brandeis, 195; Brandeis to Treadwell Cleveland, 18 Jun. 1913, LLDB III: 120. 38 Stat. 717 (1914), sec. 6.

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industrial structure as the Sherman Act had, but not because Wilson was actually a “corporate liberal.” He did maintain a vigorous series of antitrust prosecutions against “center” firms, most notably United States Steel. Wilson and Brandeis misunderstood the fundamental causes of industrial concentration. Then World War One led the government to require products that only gargantuan business could provide, killing their antitrust efforts.30

commission government Wilson and Brandeis’s solicitude for small business also led them to establish an administrative agency to define and enforce antitrust law, in the Federal Trade Commission Act. The act declared “that unfair methods of competition in commerce are hereby declared unlawful” – a term that differed from the common law language of the Sherman Act. It established an independent commission to investigate unfair methods and issue legally enforceable “cease and desist” orders when it found them.31 Such an agency would help to “regulate competition” – to limit the competition that, in Brandeis’s view, led to monopoly.32 Though both men esteemed the judiciary and feared a centralized, bureaucratic state, they began to adopt Roosevelt’s New Nationalist version of progressivism. The New Freedom began to construct the national administrative apparatus that the Civil War–era Republican program of national mercantilism had avoided. The original National Currency Act, for example, had created the Office of the Comptroller of the Currency, but this agency’s function extended only to auditing national banks, not to policy-making. Later acts such as the Sherman Antitrust Act were enforced by Justice Department suits, and the judiciary kept the Interstate Commerce Commission on a short leash, though it acquired more power during the Roosevelt administration, particularly the power to set railroad rates.33 The Federal Reserve Board and the Federal Trade Commission would in time acquire tremendous policymaking power and pose serious constitutional questions. The constitutional problems raised by the ICC – the delegation of legislative powers, and the combination of legislative, executive, and judicial powers – reappeared, and posed larger problems since they were not limited to 30

31 32 33

Seltzer, “Woodrow Wilson as a ‘Corporate-Liberal,’” 198; Urofsky, Big Steel and the Wilson Administration, 52, 77. 38 Stat. 717 (1914), sec. 5. Berk, Louis D. Brandeis and the Making of Regulated Competition, 93. Brandeis missed most of the legislative crafting of the Clayton act because he was giving testimony to the ICC, against the railroads’ request for higher rates. This testimony further indicated of the weakness of Brandeis’s economic ideas, in his claims that the railroads’ financial plight was due to bigness-induced inefficiency, and that they could save “a million dollars a day” by adopting the methods of “scientific management.” McCraw, Prophets of Regulation, 105; Paper, Brandeis, 152; Albro Martin, Enterprise Denied: Origins of the Decline of American Railroads, 1897–1917 (New York: Columbia University Press, 1971), 216–18.

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railroads.34 Several senators raised objections to the act on these grounds. North Dakota Senator Porter McCumber called the act “a very important step toward the field of paternalism in putting every business under the strict supervision of the government.” Missouri Senator James Reed objected to the delegation of legislative power to the commission, noting that “The word ‘commission’ has become a holy term upon the lips of the reformer.” Colorado Senator Charles Thomas lamented that “We are rapidly becoming a government by commission.” Utah Senator George Sutherland made the most sustained attack on the constitutionality of the Act, calling it “utterly void” for its combination of legislative and judicial powers. Tennessee Senator John K. Shields called the proposal “in clear contravention of the fundamental law, uncalled-for, unwise, arbitrary and oppressive.” Though the ICC also combined constitutionally separated powers, “It perhaps was thought to be justified by the necessities of the case” of interstate railroads, he noted. Progressives defended commissions as alternatives to conservative courts. Iowa Senator Albert Cummins observed that if commissions went awry, Congress could legislate them out of existence, while federal courts “are removed from both Congress and the will of the people.”35 But activist progressives were disappointed at Wilson’s initial appointments to these agencies, believing that they were too pro-business.36 Wilson and Brandeis had moved away from the judicial model of antitrust and toward Roosevelt’s New Nationalist administrative model. Brandeis, like Wilson, had been suspicious of “government by experts,” but now claimed that the realities of American industrial structure required it. The rising influence of “Colonel” Edward House also promoted the administrative approach. House had backed Wilson’s candidacy in 1912. At the same time he published (anonymously) a futuristic novel entitled Philip Dru, Administrator. The protagonist, a West Point graduate, sees “the civic institutions of his country debased by the power of wealth under the guise of the constitutional protection of property.” Dru leads a popular rebellion against a regime in which “Masterful and arrogant wealth, created largely by government protection of its profits,” had corrupted both parties. The successful rebel then declares himself “Administrator of the Republic,” and gives the nation a new Constitution. “Our Constitution and laws served us well for the first hundred years of our existence,” Dru declares, “but under the conditions of today, they are not only obsolete, but even grotesque.” His first act is to abolish judicial review, “as was the practice in all other civilized nations.” The Administrator then establishes mandatory retirement at seventy for the judges, and provides for their removal by a simple majority of the legislature. Procedural reforms, under the advice of European legal experts,

34

35 36

Edward S. Jouett, “The Inquisitorial Feature of the Federal Trade Commission Act Violates the Federal Constitution,” Virginia Law Review 2 (1915), 586; Joseph E. Davies to Wilson, 21 Aug. 1914, PWW XXX: 427. CR, 25 Jun. 1914, ALL VI: 89, 94, 286; CR, 25 Jun. to 4 Aug. 1914, LH III: 1766, 1803, 1769. Philippa Strum, “Louis D. Brandeis, the New Freedom, and the State,” Mid-America 69 (1987), 124; “Wilson Defends Warburg and Jones,” New York Times, 9 Jul. 1914, p. 1.

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would turn the judiciary into “a most efficient bureau for the people.” Dru imposes a number of other progressive reforms, such as an income tax and a new banking system, that would “completely destroy the credit trust, the most far reaching and, under evil direction the most pernicious trust of all.” By another law, “labor is no longer classed as an inert commodity to be bought and sold by the law of supply and demand.” The Administrator also modernizes popular customs such as the burial of the dead. Dru pursues an active foreign policy, which culminates in the conquest and reform of Mexico.37 As one historian has observed, “To a modern reader, this flouting of constitutional norms seems proto-fascist at best, but turn-of-the-century audiences found it relatively easy to regard benevolent despots like Dru as democratic heroes.”38 The program outlined in the book, which House said expressed “both my ethical and political faith,” sounded more like Roosevelt’s than Wilson’s. Indeed, many reviewers guessed that T.R. was the anonymous author. Wilson took the book with him on his pre-inaugural vacation. His Interior Secretary, Franklin Lane, later observed, “All that book has said should be comes about. . .. The President comes to Philip Dru in the end.”39

labor’s gold brick The union part of the antitrust campaign showed Wilson’s conservatism. For years the AFL had pursued a campaign to exempt unions from the antitrust laws and to prohibit federal courts from issuing injunctions in labor disputes. Congress almost certainly had not intended to exempt unions, but the AFL claimed that the courts had misconstrued the antitrust act in applying it to unions. They made this a central part of their 1908 political support of the Democrats. A 1908 Supreme Court decision that definitively applied the Sherman Act to labor combinations sharpened the issue. The “rule of reason” that the Court adopted in 1911 did not help unions, because their restraints of trade could hardly be shown to benefit consumers.40 AFL President Samuel Gompers claimed that the courts had used the Sherman Act and injunctions to “outlaw labor unions.” The federal judiciary had forced the AFL to enter politics in order to save organized labor.41 Despite the 37

38

39

40

41

Philip Dru, Administrator: A Story of Tomorrow, 1920–35 (New York: B. W. Huebsch, 1920 [1912]), 3, 66, 222, 186, 229, 261, 290. Maxwell Bloomfield, Peaceful Revolution: Constitutional Change and American Culture from Progressivism to the New Deal (Cambridge, MA: Harvard University Press, 2000), 29. Godfrey Hodgson, Woodrow Wilson’s Right Hand: The Life of Colonel Edward M. House (New Haven: Yale University Press, 2006), 7, 48–52; Robert S. Rifkind, “The Colonel’s Dream of Power,” American Heritage 10 (1959), 61. Edward S. Corwin, “The Anti-Trust Acts and the Constitution,” Virginia Law Review 18 (1932), 372–77; Loewe v. Lawlor, 208 U.S. 274 (1908); Herbert Hovenkamp, Enterprise and American Law, 1836–1937 (Cambridge: Cambridge University Press, 1991), 211. Samuel Gompers, Seventy Years of Life and Labor: An Autobiography, 2 vols. (New York: Augustus M. Kelly, 1967 [1925]), II: 255, 269, 289, 206, 211.

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exaggerated depiction of the threat, Gompers pressed his campaign against the courts.42 Theodore Roosevelt, who in his last annual message to Congress castigated the federal courts, was still more critical of the AFL’s attack on the judiciary. To make union exceptions under antitrust laws or equity procedure “would mean the enthronement of class privilege in its crudest and most brutal form.”43 The Republicans endorsed minor reforms in the procedural aspects of issuing injunctions, particularly their imposition without notice and without the opportunity for the parties enjoined to be heard. This did not satisfy Gompers.44 The Democrats adopted a cryptic resolution that “injunctions should not be issued in any cases in which injunctions would not issue if no industrial dispute were involved,” which Gompers accepted as “substantially identical with our principal demands.”45 Taft was closer to the truth in his judgment that it was meaningless.46 When the Democrats won control of Congress in 1910, they enacted a bill to deny appropriations for the Justice Department to prosecute unions under the antitrust laws. In his last act as President, Taft vetoed the bill as “class legislation of the most vicious sort.”47 Woodrow Wilson looked like the least pro-union Democrat seeking the nomination in 1912; Gompers preferred Champ Clark. Wilson had given a graduation address in 1909 that accused unions of turning American workers into “unprofitable servants, seeking to minimize labor output.48 He also used his influence with New Jersey’s progressive Senator, James Martine, to assist the confirmation of his Princeton classmate, Mahlon Pitney, whom organized labor particularly reviled.49 New Jersey unions opposed his 1910 gubernatorial campaign, but by 1912 Wilson had won over the AFL.50 Wilson again consulted Brandeis, and pitched the labor issue as part of the antitrust campaign. He warned union men against Roosevelt’s plan to regulate monopoly rather than competition. Under the Democratic antitrust program, the day would come when “every wage slave can look up and say to his fellow men, ‘I, too, am of 42

43 44 45 46

47 48

49

50

Alpheus T. Mason, “The Labor Clauses of the Clayton Act,” American Political Science Review 18 (1924), 492, 507; Daniel R. Ernst, Lawyers against Labor: From Individual Rights to Corporate Liberalism (Urbana: University of Illinois Press, 1995), 122, 183. For a recent work that echoes Gompers, see Sanders, Roots of Reform, 93. “Eighth Annual Message,” 8 Dec. 1908, M&PP XVI: 7210. NPP, 160; Pringle, Life and Times of William Howard Taft, I: 348. NPP, 148. Gompers, Seventy Years of Life and Labor, II: 263; Taft, “Mr. Gompers, the Courts, and Labor,” Cooper Union, NY, 28 Oct. 1908, CWWHT II: 153. Veto message, 4 Mar. 1913, M&PP XVIII: 7865. “A Sermon – Baccalaureate Address,” 13 Jun. 1909, PWW XIX: 245. See also “A Credo,” 6 Aug. 1907, PWW XVII: 335. Wilson was also said to have written, “I am a fierce partizan of the Open Shop and of everything that makes for individual liberty,” but no copy of this utterance is extant. James Kerney, The Political Education of Woodrow Wilson (New York: Century, 1926), 34. Kerney, Political Education of Woodrow Wilson, 120, 192. Pitney told the press that he did not “endorse all of the principles [Wilson] is advocating.” Link, Wilson: The Road to the White House, 381; Gompers, Seventy Years of Life and Labor, II: 277.

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the free breed of American citizens.’”51 The trusts, he said, “are the only power in this country that have [sic] broken the power of organized labor.”52 His speeches echoed Brandeis and Gompers’ bogus claim that “the right of organization on the part of labor is not recognized even by the laws of the United States.”53 This analysis revealed Brandeis’s influence, particularly in its confusion of monopoly in production and monopsony in the labor market, and its claim that breaking up big business would benefit labor by increasing competition for labor.54 When the Progressive Party claimed that big business paid higher wages, his response was both lurid and inaccurate. “I am not of the same sanguine disposition of the leaders of the third party. I have seen these giants close their hands upon the workingmen of this country already, and I have seen the blood come through their fingers.”55 Wilson signed the bill to prevent Justice Department antitrust suits against unions, but was taken aback by the widespread objections to it.56 He became more cautious in the drafting of the Clayton Antitrust Act, and his hesitation produced “open warfare” with the AFL.57 Gompers admitted that the AFL’s fundamental problem was the American aversion to “class legislation.” The English native observed that “England accepted class distinctions and was willing to enact legislation giving wage-earners relief without concerning herself closely as to the underlying philosophy that justified the action. In the United States, our institutions are founded upon the basic principle of equality and American labor had to make plain that it did not request special privilege but equality of opportunity.”58 Historians usually depict Gompers and the AFL as privatists or voluntarists, rejecting the political approach of the socialists and the violence of the anarcho-syndicalists.59 In fact, the AFL sought government assistance in promoting bilateral monopoly – if unions could take labor costs out of competition, it would help producers to limit competition.60 By seeking this exemption from antitrust law and equitable remedies, so that it could use strikes and boycotts against employers and other workers, the AFL was using socialist means to attain syndicalist ends. 51 52 53 54

55

56

57 58

59

60

“Ignore Party Labels, Wilson Tells Labor,” New York Times, 3 Sep. 1912, p. 3. “An Address to Workingmen in Fall River, MA,” 26 Sep. 1912, PWW XXV: 262. Ibid., 263; Brandeis to editor, Boston Journal, 24 Sep. 1912, LLDB II: 679. “An Address to Workingmen,” 268; Manfred Boemeke, “The Wilson Administration, Organized Labor, and the Colorado Coal Strike, 1913–14” (Ph.D. diss., Princeton University, 1983), 73–75. “A Call in Denver for a ‘Second Emancipation,’” 7 Oct. 1912, PWW XXV: 373. American union leaders agreed with Roosevelt that big business paid higher wages. Herbert Croly similarly recognized this point – Progressive Democracy (New Brunswick, NJ: Transaction, 1998 [1914]), 118. Ray Stannard Baker, Woodrow Wilson: Life and Letters, 8 vols. (Garden City, NY: Doubleday, Page, 1927–39), IV: 361–63; Link, Wilson: The New Freedom, 266. “A News Report,” New York World, 1 May 1914, PWW XXIX: 537. Gompers, Seventy Years of Life and Labor, 290; Morton Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–33 (Cambridge, MA: Harvard University Press, 1990), 141. Marc Karson, American Labor Unions and Politics, 1900–18 (Carbondale: Southern Illinois University Press, 1958), 128, 134, 157. Daniel R. Ernst, “The Labor Exemption, 1908–14,” Iowa Law Review 74 (1989), 1154–55.

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The labor provisions of the Clayton Act declared that “the labor of a human being is not a commodity or article of commerce,” and that the law did not “forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof.” The act also prohibited federal courts from issuing injunctions “in any case between an employer and employees. . . unless necessary to prevent irreparable injury to property, or to a property right.” Nor could the courts prohibit “peaceful” strikes or boycotts. The act also contained procedural reforms in the injunction process along the lines endorsed by the Republicans. These provisions were a far cry from the AFL’s proposed language, “Nothing contained in the antitrust laws shall be construed to apply to labor organizations.”61 But Gompers called it “the greatest measure of humanitarian legislation in the world’s history” and “the Magna Carta of American workers.”62 He fooled nobody; none of these provisions would do much to increase union power.63 No court had ever claimed that labor was a commodity; no court had ever enjoined “lawful” and “legitimate” union activity. Congressmen repeatedly denied that the Act gave unions any special immunities, which reflected most public opinion on the matter.64 Wilson had refused to include a union exemption when New Jersey rewrote its antitrust laws at the end of his governorship.65 When asked if the Act gave unions any rights that they did not already possess, Wilson answered, “I don’t think that it does, but some of the decisions of the Supreme Court leave that open to doubt.”66 Progressives had exaggerated the threat to unions from the courts; now unions exaggerated their protection in the Clayton Act. Much like the 1898 Erdman Act, the Act was a “legislative deferral,” passing on to the courts controversial policy questions of labor regulation.67 Taft aptly observed that the administration was trying to buy the labor vote with a gold brick.68 One sees Wilson’s ambivalence toward organized labor – and organized labor’s ambivalence toward some workers – in his reception of the La Follette Seamen’s Act of 1915. Organized labor had long wanted to improve the working conditions of merchant sailors, particularly to do away with imprisonment as a punishment for desertion. Unlike all other workers since the abolition of slavery, 61 62

63

64

65 66 67

68

38 Stat. 323 (1914), sections 6 and 20; Karson, American Labor Unions and Politics, 78. “The Movement for Universal Peace Must Assume the Aggressive” and “The Charter of Industrial Freedom: Labor Provisions of the Clayton Antitrust Act,” American Federationist 21 (1914), 860, 971. John S. Smith, “Organized Labor and Government in the Wilson Era, 1913–21: Some Conclusions,” Labor History 3 (1962), 273. Alpheus T. Mason, “The Labor Provisions of the Clayton Act,” American Political Science Review 18 (1924), 497; Daniel R. Ernst, Lawyers against Labor, 166, 183; Robert K. Murray, “Public Opinion, Labor, and the Clayton Act,” Historian 21 (1959), 265. Mahoney, “Backsliding Convert,” 77. “Remarks at a Press Conference,” 1 Jun. 1914, PWW XXX: 127. George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge: Cambridge University Press, 2002); Ernst, “The Labor Exemption,”1167. Stanley Kutler, “Labor and the Clayton Act,” Labor History 3 (1962), 20; Karson, American Labor Unions and Politics, 78; Dallas L. Jones, “The Enigma of the Clayton Act,” Industrial and Labor Relations Review 10 (1957), 220.

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seamen were not free to quit work at will. But the real purpose of the La Follette Act was to protect white American sailors against foreign competitors, particularly Asians. “The destructive competition of aliens,” Gompers wrote, was “driving not only the American but all white men from the sea.” A similar sentiment fed white supremacists’ demand for the segregation of the federal workforce. The bill’s proponents openly confessed this racial policy, and crucial Southern Democratic support depended on it. Wilson acquiesced, though he feared that it might violate American treaty obligations, and although he still harbored qualms about “class legislation.”69 By the end of 1914, Wilson told Congress that “Our program of legislation with regard to the regulation of business is now virtually complete.”70 A business recession and Republican gains in the 1914 elections made him more cautious; the outbreak of war in Europe and the death of his wife distracted him. Most historians see Wilson’s revival of energetic progressivism in 1916 as opportunistic, based on his estimation that he needed independent and Bull Moose Progressive votes if he wanted to win reelection. As Wilson put it, “You have got to fish for the majority, and the only majority you can get is the majority that is ready.”71 Others see a consistent statist philosophy in Wilson’s career.72 These views are not irreconcilable. Wilson believed that the President must lead, but not be too far ahead of popular opinion.73 His drift toward New Nationalist progressivism fit his view of the President as the embodiment of public opinion, shaped by but also shaping the zeitgeist.74 As Wilson had put it in 1890, “It would seem that in almost every generation men are born who embody the projected consciousness of their time and people.”75 By 1916, he believed that the American people were ready to follow him into a more advanced progressivism. As one historian observes, for Wilson “to change with the times was to be consistent with principle, not to abandon it.”76

69

70 71

72

73

74

75

76

Jerold S. Auerbach, “Progressives at Sea: The La Follette Act of 1915,” Labor History 2 (1961), 352; Kathleen L. Wolgemuth, “Woodrow Wilson and Federal Segregation,” Journal of Negro History 44 (1959), 159; Otis L. Graham, Jr., The Great Campaigns: Reform and War in America, 1900–28 (Englewood Cliffs, NJ: Prentice-Hall, 1971), 49. Second Annual Message, 8 Dec. 1914, M&PP XVIII: 8015. Quoted in Daniel D. Stid, The President as Statesman: Woodrow Wilson and the Constitution (Lawrence: University Press of Kansas, 1998), 67. Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman & Littlefield, 2005), 122, 261; John Milton Cooper, Jr., The Warrior and the Priest: Woodrow Wilson and Theodore Roosevelt (Cambridge, MA: Harvard-Belknap, 1983), 55, 120, 126, 194, 253. Woodrow Wilson, Constitutional Government in the United States (New Brunswick, NJ: Transaction, 2002 [1908]), 69. Paul Eidelberg, A Discourse on Statesmanship: The Design and Transformation of the American Polity (Urbana: University of Illinois Press, 1974), 359. “Leaders of Men,” 17 Jun. 1890, PWW VI: 666; Richard J. Bishirjian, “Croly, Wilson, and the American Civil Religion,” Modern Age 23 (1979), 36. Clements, Presidency of Woodrow Wilson, 44; Martin J. Sklar, “Woodrow Wilson and the Political Economy of Modern United States Liberalism,” Studies on the Left 1 (1960), 44.

13 The New Wilson

the brandeis nomination Wilson began to rally progressive forces for the 1916 election with his dramatic nomination of Louis Brandeis to the Supreme Court in January. Wilson’s first Court appointment, James C. McReynolds, turned into one of the nemeses of the New Deal. Most accounts attribute Wilson’s choice of McReynolds to inattention, or his desire to kick a politically troublesome attorney general upstairs. But Wilson had reason to believe that McReynolds was a genuine progressive, particularly due to his antitrust record. The only progressives who disapproved of the nomination were those who called him insufficiently aggressive in railroad and oil cases.1 Brandeis himself endorsed McReynolds, writing that “I have the highest opinion of his ability and character and should think the country would indeed be fortunate to have him” as Attorney General.2 Wilson’s decision seems to have been hasty, in the midst of severe distraction due to the recent death of his wife and the outbreak of war in Europe.3 Ray Stannard Baker later claimed that Wilson had told him that he came to regret the choice, but no other evidence corroborates this.4 The infamously irascible and bigoted McReynolds became the least collegial justice in the history of the Court.5 1

2

3

4

5

James E.Bond,I Dissent:The Legacy ofChief[sic] Justice James Clark McReynolds (Fairfax,VA: George Mason University Press, 1992), 49; Calvin P. Jones, “Kentucky’s Irascible Conservative: Supreme Court Justice James Clark McReynolds,” Filson Club History Quarterly 57 (1983), 23; Daniel S. McHargue, “Appointments to the Supreme Court of the United States: The Factors that Have Affected Appointments, 1789–1932” (Ph.D. thesis, University of California, Los Angeles, 1949), 409–15; “McReynolds in the Lead,” New York Times, 1 Aug. 1914, p. 8; “Norris Fights McReynolds,” ibid., 28 Aug. 1914, p. 8; “Mr. McReynolds’ Promotion,” Literary Digest, 5 Sep. 1914, p. 405. Brandeis to Maurice Leon, 28 Feb. 1913, LLDB III: 35; Brandeis to Gilson Gardner, 5 Mar. 1913, ibid., 39. Alexander M. Bickel and Benno Schmidt, Jr., The Judiciary and Responsible Government, 1910– 21 (Cambridge: Cambridge University Press, 1984), 350. Ray Stannard Baker, Woodrow Wilson: Life and Letters, 8 vols. (Garden City, NY: Doubleday, Page, 1927–39), VI: 113. See the pathetic Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in F.D.R.’s Washington, ed. Dennis J. Hutchinson and David J. Garrow (Chicago: University of Chicago Press, 2002).

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The Brandeis appointment stunned the Senate and set off a firestorm of protest. Ex-president Taft, who had long sought to serve on the Court himself, and whom Brandeis had exposed antedating a report during the Pinchot– Ballinger controversy, was especially bitter. In a private letter, Taft called the appointment “one of the deepest wounds that I have had.” He called Brandeis “a muckraker, an emotionalist for his own purposes, a Socialist. . . a man who has certain high ideals in his imagination. . . of great tenacity of purpose and, in my judgment, of much power for evil.”6 Taft joined several past presidents of the American Bar Association who protested the nomination. Brandeis’ supporters, fearful that an immediate vote would defeat the nomination, conducted for the first time an extensive set of hearings on a judicial appointment.7 These hearings, which lasted for several weeks and produced more than 1,300 pages of testimony and reports, never considered Brandeis’s constitutional views.8 The Senators focused on Brandeis’s professional ethics as an attorney. In private practice, and even as a public advocate, Brandeis had not written much on constitutional questions. He shared some of the progressives’ critique of the courts. He chided the bar for betraying the “people” in service of the “interests.” Rather than mediating between rich and poor, they became “adjuncts of great corporations and have neglected their obligation to use their powers for the protection of the people,” he wrote in 1905. “We hear much of the ‘corporate lawyer,’ and far too little of the ‘people’s lawyer.’”9 Just a few weeks before Wilson made the appointment, Brandeis gave a speech, “The Living Law,” that encapsulated progressive legal and constitutional principles. He drew a distinction between the “legal justice” of the past and the “social justice” of the future. The social sciences – sociology, for example – had progressed and come to see that crime was “as much the fault of the community as of the individual.” He scorned jurisprudence, citing decisions such as Lochner and Ives for frustrating progress. Brandeis noted the rise of “non-legal tribunals” as expressions of dissatisfaction with the courts. Such institutions, he warned, might prove to be “mischievous” remedies. “What we need is not to displace the courts, but to make them efficient instruments of justice; not to displace the lawyer, but to fit him for his official or judicial task.”10 Not until the hearings concluded did Brandeis respond to rumors in the Senate that he “did not believe in a written Constitution” and 6

7 8

9 10

Henry F. Pringle, The Life and Times of William Howard Taft: A Biography, 2 vols. (New York: Farrar-Rinehart, 1939), II: 952. A. L. Todd, Justice on Trial: The Case of Louis D. Brandeis (New York: McGraw-Hill, 1964), 72. The only remotely constitutional issue arose out of Brandeis’s testimony concerning the procedures of the Interstate Commerce Commission and the Sherman Act, indicating that he was not attentive enough to procedural safeguards for criminal defendants. Nomination of Louis D. Brandeis, Hearings Before the Committee on the Judiciary, 64th Cong., 1st Sess., Sen. Doc. 409 (Washington: G.P.O., 1916), 93–116. “The Opportunity in the Law,” American Law Review 39 (1905), 559. “The Living Law,” Illinois Law Review 10 (1916), 461–71. Roscoe Pound presented the contrast of “legal justice” and “social justice” in “Law in Books and Law in Action,” American Law Review 44 (1910), 30.

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that he believed that the Supreme Court “should not be restrained from responding to a demand by the people by a constitutional restriction.” He denied these charges firmly. “I have not only not said any such thing,” he told the Attorney General, “but not said anything which anyone could have distorted into such a statement. My views in regard to the Constitution are as you know very much those of Mr. Justice Holmes.”11 But neither his advocates nor his opponents brought up his jurisprudential views.12 Brandeis faced serious charges that he had created conflicts of interest by not acting as an advocate for his clients. Though famously aggressive in fighting for his clients’ causes, he could also compromise their interests when he tried to mediate conflict by acting, as he put it, as “counsel to the situation.” Ironically enough, Brandeis was accused of having too much of a “judicial temperament.” These charges raised legitimate questions about his fitness for judicial office. He displayed a self-confidence that approached arrogance, a tendency to identify his own views with the public good, and to use his clients as tools toward the realization of his social policy goals. Brandeis, like many progressives, trusted himself to exercise the kind of power that he claimed “the interests” had abused. The lawyer who acted like a judge would become a judge who acted like a legislator. Brandeis would continue his advocacy while he was on the bench, largely through his acolyte, Felix Frankfurter. His style of adjudication did not merely uphold progressive legislation, but made detailed, fact-filled statements of policy advocacy.13 Brandeis would exercise judicial power in novel ways. John Marshall had given ringing endorsements of federal power, but he did so on constitutional grounds. He did not explain the benefits of fractional-reserve lending when he upheld the first Bank of the United States; nor did he detail the advantages of steam power for commercial shipping when he struck down New York’s steamboat monopoly law. Where Marshall gave judicial approval to legislative policy, Brandeis proffered judicial participation in legislation. Ultimately, the nomination vote became a matter of party discipline. The Seventeenth Amendment may have helped Brandeis. That recent change in mode of election probably returned seven more Democratic senators in 1914 than would have been the case with legislative choice.14 As Wilson told Senator Atlee 11 12

13

14

Brandeis to Thomas W. Gregory, 14 Apr. 1916, LLDB IV: 165; Todd, Justice on Trial, 202. Todd, Justice on Trial, 168; Clyde Spillenger, “Elusive Advocate: Reconsidering Brandeis as People’s Lawyer,” Yale Law Journal 105 (1996), 1500. Brandeis to Edward F. McClennen, 19 Feb. 1916, LLDB IV: 77; Spillenger, “Elusive Advocate,” 1469, 1486–87, 1508–11, 1525; Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994), 111; David Danelsky, “The Propriety of Brandeis’ Extrajudicial Conduct,” in Brandeis and America, ed. Nelson L. Dawson (Lexington: University of Kentucky Press, 1989); Thomas K. McCraw, “Louis D. Brandeis Reappraised,” American Scholar 54 (1985), 532; Philippa Strum, “Brandeis and the Living Constitution,” in Brandeis and America; Keith E. Whittington, Political Foundations of Judicial Supremacy (Princeton: Princeton University Press, 2007), 217–18. Todd, Justice on Trial, 84; Jay S. Bybee, “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment,” Northwestern University Law Review 91 (1997), 552.

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Pomerene, “Our whole fortune in the coming election depends upon whether we gain or do not gain the confidence of the independent voters, and I could not imagine anything that would be more likely to defeat us than the rejection of such nominations as. . . that of Mr. Brandeis.”15 When Brandeis’s supporters told Wilson that many wavering senators believed that the President did not consider the nomination a priority, Wilson wrote a letter to Senate Judiciary Committee chairman Charles A. Culberson that ardently recommended Brandeis. But Wilson never made the appointment of Brandeis part of an attack upon the existing Supreme Court. Rather, he wrote that “This friend of justice and of men will ornament the high court of which we are all so justly proud.”16 The Senate Judiciary subcommittee and full Judiciary Committee voted on strictly partisan lines, and the full Senate confirmed without debate.

tariff and farm policies In 1916, one by one, Wilson began to adopt New Nationalist policies as he had with the Federal Trade Commission. He repudiated the clearest position that the Democrats had taken in 1912, a tariff for revenue only, and embraced the Republican idea of an independent tariff commission. The Taft administration had established a tariff commission under the Payne–Aldrich Act, but the Democratic Congress cut off its funds in 1912. TR’s Progressive Party called for “a non-partisan and scientific tariff commission,” and the regular Republicans endorsed “an expert commission.” When the European war broke out, Republicans raised the alarm that after the war, the belligerents would “dump” their industrial products and flood U.S. markets, as Great Britain had done after the War of 1812. Many Democrats came to endorse a non-partisan tariff commission to neutralize this issue, and to provide evidence that the tariff hurt American consumers. The AFL, to the contrary, hoped that the commission would show that the tariff raised wages. Other Democrats feared that a commission could be “captured” by protectionists. Wilson eventually embraced the idea that an independent commission would remove the tariff issue from politics, trying to win over independent and progressive voters.17 But nobody could delegate the power of taxation. As one observer noted, the country had long had two tariff commissions – the House Committee on Ways and Means and the Senate Committee on Finance. No other agency “could do more than gather information and make recommendations based 15 16 17

Wilson to Atlee Pomerene, 12 May 1916, PWW XXVII: 25. Wilson to Charles A. Culberson, 5 May 1916, PWW XXVI: 611. E. Pendleton Herring, “The Political Context of the Tariff Commission,” Political Science Quarterly 49 (1934), 424; NPP, 181, 185; Karen Schnietz, “Democrats’ 1916 Tariff Commission: Responding to Dumping Fears and Illustrating the Consumer Costs of Protectionism,” Business History Review 72 (1998), 1–45; Schnietz, “The 1916 Tariff Commission: Democrats’ Use of Expert Information to Constrain Republican Tariff Protection,” Business and Economic History 23 (1994), 183; Daniel D. Stid, The President as Statesman: Woodrow Wilson and the Constitution (Lawrence: University Press of Kansas, 1998), 109.

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thereon to the Congress. . . because the Constitution imposes upon the House of Representatives the duty, which none of its members can escape without being open to impeachment, of retaining original jurisdiction of tariff matters.”18 Congress established a tariff commission as part of the 1916 Revenue Act. Wilson also began to relax his scruples about “class legislation” in the Federal Farm Loan Act of 1916. American farmers had long made the dubious claim that they were discriminated against in the credit market, charged usurious interest rates by the Eastern money trusts. Wilson and his Agriculture Secretary, David F. Houston, rejected these appeals for federal assistance as “class legislation.”19 He repeated this position the following year.20 Looking for political support from the Midwest in 1916, Wilson began to change his views. The farm credit bill evolved much like the Federal Reserve Act, on which it was modeled. It rejected the radicals’ call for direct federal loans to farmers. Instead, the federal government subsidized a series of land banks, and making their bonds taxexempt “instrumentalities of the government of the United States.” The bill’s sponsors, uneasy about its constitutionality, inserted a section that made the banks government depositories. They frankly admitted that it needed such a public function as a constitutional cover for its real purpose.21 This fig leaf did save the Act from a court challenge.22 Nevertheless, as contemporary critics pointed out, the Act really benefited farmers who needed help the least – landowners rather than sharecroppers or tenants. It also encouraged farmers to take on excessive debt and promoted land speculation. American farmers themselves were skeptical about the Act. The journal of the National Grange reported much indifference and ridicule among farmers, who believed that “such an act was not needed and that it will bring no benefits to American farmers.”23 “Urban 18

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20 21

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George Gilbert, “The Constitution versus Tariff Commissions,” North American Review 204 (1916), 156. Wilson to Carter Glass, 12 May 1914, PWW XXX: 24; Lawrence H. Chamberlain, The President, Congress and Legislation (New York: Columbia University Press, 1946), 269. “Remarks at a Press Conference,” 2 Mar. 1915, PWW XXXII: 308. Arthur S. Link, Wilson: The New Freedom (Princeton: Princeton University Press, 1956), 262; Link, Wilson: Confusion and Crises, 1915–16 (Princeton: Princeton University Press, 1964), 346; “How Farmers May Get Money,” New York Times Magazine, 11 Jul. 1915, p. 19; “Congress Has Bill to Aid Nation’s Farmers,” New York Times Magazine, 6 Feb. 1916, p. 9; George E. Putnam, “The Federal Farm Loan Act,” American Economic Review 6 (1916), 780; Stuart W. Shulman, “The Origin of the Federal Farm Loan Act: Issue Emergence and Agenda-Setting in the Progressive Era Print Press,” in Fighting for the Farm: Rural America Transformed, ed. Jane Adams (Philadelphia: University of Pennsylvania Press, 2003), 117; George E. Putnam, “Recent Developments in the Federal Farm Loan System,” American Economic Review 11 (1921), 430. Howard H. Preston, “The Federal Farm Loan Case,” Journal of Political Economy 29 (1921), 433–54. Notably, the challengers focused their argument on the exemption of federal bonds from state and local taxation, an indication of the potential power of the income tax to affect other social policies. Jesse E. Pope, “The Federal Farm Loan Act,” Bureau of Applied Economics Bulletin No. 1 (1917), 56–59; Putnam, “Federal Farm Loan Act,” 787; Myron T. Herrick, “Some Objections to the Federal Farm Loan Act,” North American Review 204 (1916), 848; Shulman, “Origin of the Federal Farm Loan Act,” 113, 121, 125–26.

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agrarians” and bankers – those who believed that American food prices were rising because of the inefficiency of under-capitalized American farmers – pushed the bill more than farmers. Its promotion of mass-production agriculture – aggravated by the World War – would exacerbate American farm problems in the 1920s. Above all, the Act constituted another impressive delegation of legislative power to an administrative agency. It gave an agency “absolute discretion to involve the government in debt at an interest rate higher than ever paid during peace or prosperity, and without any limit on amount or period,” all on the basis of the power to “borrow on the credit of the United States,” one critic wrote. “Wisdom would dictate that such a power should not be delegated, even were it constitutional to do so.” Only an open-ended reading of the taxing and interstate commerce powers could furnish a justification for it.24 Congress also began to expand and transform the land-grant subsidy system to promote rural interests. The proliferation of grants-in-aid in this period may reflect the federalism-weakening effect of the recently adopted Seventeenth Amendment, which made senators less protective of state power and abetted state politicians’ use of federal power to promote local interests. The modern grant-in-aid system began with a forest-fire prevention act in 1911, providing federal funds for states that devised programs that met federal approval. Even this was limited to “forested watersheds of navigable streams,” to provide a constitutional justification via the commerce or maritime power.25 The Smith–Lever Act of 1914 tried to bring the benefits of land-grant agricultural colleges to farmers through a system of home education carried on by “county agents.” It did so through annual appropriations rather than land grants (as begun in the 1887 Hatch Act), and for the first time required that the states match the federal grants.26 Farm interests also fought for federal subsidies for roads. Against those who wanted the federal government to build and maintain a road system for national defense, they preferred federal subsidies that the states could use to build short lines to help farmers move their crops to market. This subsidy for motor transportation would also strike a blow at the rural progressives’ railroad nemeses. The 1916 Federal Highway or “Good Roads” Act was administered by the Department of Agriculture, and its $75 million could not be spent anywhere with a population over 2,500.27 It was the first federal grant with significant strings attached. Later grants 24 25

26

27

Herrick, “Some Objections,” 839, 846; Putnam, “Federal Farm Loan Act,” 787. 36 Stat. 961 (1911); Jane Perry Clark, The Rise of a New Federalism: Federal-State Cooperation in the United States (New York: Russell & Russell, 1965 [1938]), 142; Michael Greve, The Upside-Down Constitution (Cambridge, MA: Harvard University Press, 2012). Walter Thompson, Federal Centralization: A Study and Criticism of the Expanding Scope of Congressional Legislation (New York: Harcourt, 1923), 146–54. 39 Stat. 355 (1916); Paul H. Douglas, “The Development of a System of Federal Grants-in-Aid I,” Political Science Quarterly 35 (1920), 258, 263, 271; James W. Ely, Jr., Railroads and American Law (Lawrence: University Press of Kansas, 2001), 265.

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required compliance with the eight-hour day, prohibition of convict labor, and minimum wages.28 Later bills for vocational education also used these methods, and began to impose stricter and more detailed requirements for states to remain eligible for the federal subsidies. Though some likened these social-welfare acts to the federal government’s arming and disciplining of the militia, an explicit constitutional warrant existed for the latter. And though states often used similar methods in sharing revenue and responsibility with counties and localities, the federal–state relationship differed from state–local ones.29 But these differences were eroding. New York Governor John A. Dix, recommending the ratification of the income tax amendment, claimed that “What the states are to the Union, counties are to a state.”30 Paul H. Douglas, then a doctoral candidate at Columbia, praised these acts for allowing voluntary state participation and experimentation, and vindicating “the true merits of federalism in an age far different from that which the Fathers envisaged when they drew up the Constitution.”31 Progressives applauded the grant-in-aid device, the study of which had been inaugurated by Beatrice and Sidney Webb in England. Herbert Croly wrote that they could bring “local services up to a desirable national standard.”32 But the Federal Highway Act was so transparently a local boondoggle that Croly wrote, “The New Republic is not afraid of centralization, but we do not like this instance of it.”33

child labor For social-justice progressives, Wilson dropped his objections to a federal childlabor law. Wilson had earlier called the idea that Congress could prohibit child labor by its interstate commerce power an “obviously absurd extravaganc[e] of interpretation.”34 In the first half of his term, Wilson opposed such 28

29

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32 33 34

Kimberley S. Johnson, Governing the American State: Congress and the New Federalism, 1877– 1929 (Princeton: Princeton University Press, 2007), 47, 128; U.S. Department of Transportation, America’s Highways, 1776–1976: A History of the Federal-Aid Program (Washington, U.S. Department of Transportation, 1976), 83. John A. Lapp, “Federal Grants in Aid,” American Political Science Review 10 (1916), 738–43; Philip A. Grant, Jr., “Senator Hoke Smith, Southern Congressmen, and Agricultural Education, 1914–17,” Agricultural History 60 (1986), 111–22. Letter to the Hon. Daniel D. Frisbie, 16 May 1911, in The Public Papers of John A. Dix (Albany: J. B. Lyon, 1912), 540. Paul H. Douglas, “The Development of a System of Federal Grants-in-Aid II,” Political Science Quarterly 35 (1920), 542–44. Herbert Croly, Progressive Democracy (New Brunswick, NJ: Transaction, 1998 [1914]), 243. New Republic, 15 Jul. 1916, p. 263. Woodrow Wilson, Constitutional Government in the United States (New Brunswick, NJ: Transaction, 2002 [1908]), 170, 179; John Milton Cooper, Jr., The Warrior and the Priest: Woodrow Wilson and Theodore Roosevelt (Cambridge, MA: Harvard-Belknap, 1983) 120; William Graebner, “Federalism in the Progressive Era: A Structural Interpretation of Reform,” Journal of American History 64 (1977), 331–57.

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congressional bills to prohibit child labor as signaling an unlimited congressional power over the economy.35 He told his secretary in 1914 that “in all frankness, no child labor law yet proposed has seemed to me constitutional.”36 Boasting in 1915 that his administration had done almost everything that the progressive Republicans promised to do, he added, “There are things that the Progressive program contained which we, being constitutional lawyers, happened to know cannot be done by the Congress of the United States. That is a detail which they seem to have overlooked. But so far as they can be done by state legislation, I, for one, speaking for one Democrat, am heartily in favor of being done.”37 In 1916, he dropped his opposition. Republican progressive Albert Beveridge had begun the child-labor crusade in the Senate in 1906. Beveridge got no support from the National Child Labor Committee, which, like many progressive organizations and progressives (including Wilson), favored uniform state legislation.38 The House Judiciary Committee reported that Congress lacked the power to prohibit the interstate transportation of child-made goods in 1907. Beveridge lost his Senate seat in the Democratic surge of 1910, but Pennsylvania Democrat A. Mitchell Palmer and then Colorado’s Edward Keating carried on his mission. By 1913, congressional proponents argued that the old guard of conservatives on the Supreme Court had “passed away,” and that the Court’s most recent interpretation of the commerce power, upholding the Mann White Slave Act, was a unanimous affirmation.39 The bill provoked an extensive discussion of Congress’s constitutional powers, particularly in the Senate, which debated it after the Democratic convention had renominated Wilson. Maryland Representative David Lewis claimed that “the power to regulate interstate commerce. . . is without any implied limitation whatever,” and that Congress had the same power here as it did to enact a uniform bankruptcy law.40 Idaho Senator William Borah asserted that Congress could eradicate child labor just as it could put down peonage. He cited the “laissez-faire” theorist Thomas McIntyre Cooley, who wrote that “Congress may establish police regulations as well as the states, confining their opinions to the subjects over which it is given control by the Constitution.”41 Irvine Lenroot of Wisconsin observed that critics of the bill relied on outdated 35

36 37 38

39

40 41

Link, Wilson: The New Freedom, 256; “Wilson Captures Social Workers,” New York Times, 27 Jan. 1913, p. 1. Wilson to Joseph P. Tumulty, 24 Jan. 1914, PWW XXIX: 170. Address at Indianapolis, 8 Jan. 1915, M&PP XVII: 8031. Thomas George Karis, “Congressional Behavior at Constitutional Frontiers” (Ph.D. diss., Columbia University, 1951), 37; William Graebner, “Federalism in the Progressive Era: A Structural Interpretation of Reform,” Journal of American History 64 (1977), 331–32. “Child Labor Bill,” H.R. Rept. No. 1400, 63d Cong., 3d Sess., 13 Feb. 1915; Karis, “Congressional Behavior,” 48; Stephen B. Wood, Constitutional Politics in the Progressive Era: Child Labor and the Law (Chicago: University of Chicago Press, 1968), 26. CR (26 Jan. 1916), 1568. CR (4 Aug. 1916), 12082–89; Cooley, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union, 7th ed. (Boston: Little, Brown, 1908), 856.

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precedents: “The construction of the Constitution then was not as broad as it is today.” Few went as far as Oregon Senator Harry Lane in his dismissal of the constitutional argument. “Personally, I do not care what the Constitution says about it,” Lane said. “I do not think we need to worry about the Constitution. The courts have always been very tender of the constitutional rights behind which special interests hide. The Constitution has been a bulwark, not at all times for the general benefit of the people of this country, but more for the benefit of the few who have been extremely reverent of it and very active in making profit out of conditions which it has allowed to prevail and bear down upon the mass of the people.”42 North Carolina’s Edwin Webb called the Interstate Commerce Clause “a flimsy pretext. . . a subterfuge through which stealthily to rob the several states” of their reserved police powers. Where Illinois Representative Edward Denison said that Congress should leave any constitutional doubts to be decided by the judiciary, South Carolina’s James F. Byrnes warned against such abdication. As to the favorable trend of Supreme Court decisions in commerce cases, beginning with the lottery case of 1903, Virginia’s Walter Watson commended that “Upon the incidental dicta of this opinion has been since erected a considerable superstructure of constitutional interpretation, to my mind, unjustified by the event and demanding conclusions far in advance of what was contemplated by the court at the time.” He decried the dangerous view that “the validity of an act of Congress like this was no longer to be tried by the Constitution, but by a ‘legislative and sociological test’ – whatever that may mean.”43 Several opponents quoted former President Taft, now a professor at the Yale Law School, as saying that “Child labor in the state of the shipment had no legitimate or germane relation to the interstate commerce of which the goods thus made are to form a part, to its character or to its effect.”44 And, of course, they cited the current president’s former position about “obviously absurd extravagancies.” Opponents frequently expressed a stringent view of judicial review, and doubted the trend of recent court decisions. Georgia Senator Thomas Hardwick observed that the line of precedents begun in the lottery case “simply shows how one wrong step leads to another and to many more; how when you have made one mistake it is difficult to retrace your way.”45 In the end, Wilson’s influence brought the Southern Democrats in the Senate to agree to pass the bill in September.46

42 43

44

45 46

CR (26 Jan. 1916), 1584; (8 Aug. 1916), 12290. CR (26 Jan. 1916), 1569; (2 Feb. 1916), 2019; (26 Jan. 1916), 1576, 1590. It is notable that Webb devised an innovative substitute for the interstate commerce power in the Webb–Kenyon Act of 1913. CR (26 Jan. 1916), 1572; Taft, Popular Government: Its Essence, Its Permanence and Its Perils (New Haven: Yale University Press, 1913), 142–43. CR (7 Aug. 1916), 12198; (4 Aug. 1916), 12076. “Child Labor Bill’s Passage Is Assured,” New York Times, 26 Jul. 1916, p. 3.

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the adamson act Wilson also bid for organized labor’s support in his handling of the railroad crisis of 1916. Years of regulation by the newly empowered Interstate Commerce Commission, effectively “captured” by shippers, had reduced railroad revenue. At the same time, railroad unions had increased their labor costs (more than 60 percent of total costs), and thus further inhibited investment. After several arbitration agreements provided unacceptably small awards, the railroad brotherhoods began concerted action to obtain higher wages. In 1916, taking advantage of the pressure that the military preparedness campaign had placed upon the railroads and the government, they refused arbitration and threatened to strike unless they were given a full day’s pay (usually ten hours) for eight hours of work. Heretofore, the brotherhoods had worked with railroad owners, trying to help them win rate increases from the ICC. But having seen the ICC captured by shippers, the unions moved into a political forum. After attempting to mediate the conflict, Wilson made a dramatic personal appearance before Congress (the first ever in informal dress). With a strike deadline only days away, he urged Congress to impose the eight-hour day, to establish a commission to study its effects, to enlarge the Interstate Commerce Commission, and to give the President the power to take over the railroads and draft trainmen into military service. Within days, Congress imposed the eight-hour day and established the commission to study its effects (Adamson Act). The railroads could not reduce wages until after the commission issued its report – within six to nine months. Congress ignored the recommendations other than those that appeased the brotherhoods.47 Though it applied only to workers “actually engaged in any capacity in the operation of trains” – principally the members of the “Big Four” railroad brotherhoods – the Adamson Act went a long way toward nationalization.48 Members of Congress who favored nationalization agreed.49 The Supreme Court upheld the Adamson Act in a 5–4 decision just weeks before America entered the war. The opinions echoed the Legal Tender Cases after the Civil War. The majority likened the eight-hour provision to other railroad safety regulations as a legitimate exercise of the commerce power. The wage provision, it noted, was “not permanent but temporary.” The majority accepted it in light of the impending catastrophe. “Although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed.” The majority referred to the “inherent power” of the national government.50 The dissenters regarded

47

48 49 50

Special Address, 29 Aug. 1916, M&PP XVIII: 8144–49; 39 Stat. 721 (1916); Arthur S. Link, Wilson: Campaigns for Progressivism and Peace, 1916–17 (Princeton: Princeton University Press, 1965), 88; K. Austin Kerr, American Railroad Politics, 1914–20: Rates, Wages, and Efficiency (Pittsburgh: University of Pittsburgh Press, 1968), 34. “The Railroad Crisis and After,” New Republic, 26 Aug. 1916, p. 81. CR (1 Sep. 1916), 13568. Wilson v. New, 243 U.S. 332 (1917), 345, 348, 351.

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the Act as taking property from the railroads, violating the due process provision of the Fifth Amendment. The emergency did not affect this constitutional guarantee. They noted that “Constitutional protection is more essential in times of unrest and agitation than it can be in the security of less turbulent periods.”51

the 1916 election Wilson made these appeals to farmers, unions, and social workers to forge a progressive coalition. In his nomination acceptance speech, he recounted the accomplishments of his first term. He now claimed that the Clayton Antitrust Act was “a veritable emancipation” for workers. “This record must equally astonish those who feared that the Democratic party had not opened its heart to comprehend the demands of social justice. We have in four years come very close to carrying out the platform of the Progressive party as well as our own; for we also are progressives.”52 In Chicago he gave a powerfully feminist view of the law, telling women’s rights advocates that “The whole spirit of the law has been to give leave to the strong, to give opportunity to those who could dominate, but it seems to me that the function of society now has another element in it, and I believe it is the element which women are going to supply. It is the element of mediation, of comprehending and drawing all the elements together. It is the power of sympathy, as contrasted with the power of contests.”53 Wilson was fortunate to face a Republican party in disarray. The GOP nominated Charles Evans Hughes, who resigned from the Supreme Court to run. Hughes had said in 1912 that judges should never seek political office. But he now regarded himself as the indispensable man. Wilson quashed Democratic efforts to denounce Hughes for his decision, perhaps because the 1912 Democratic platform had pledged him to serve only one term.54 Taft exhorted Hughes to run for the sake of the Court, lest Roosevelt win and pack it. The next president was bound to fill several vacancies on the Court, Taft surmised. Wilson had disgraced the bench with Brandeis, and Roosevelt’s appointees would be even worse.55 Hughes proved a poor campaigner, chose a poor campaign manager, and aroused little enthusiasm. A progressive himself, he found it difficult to define a campaign theme. He could never shake his reputation for being a cold fish – the “bearded icicle,” as Roosevelt called him. His two races for the New York governorship provided little valuable experience – his 1908 campaign against 51 52 53 54

55

Ibid., 371. Speech of Acceptance, Long Branch, NJ, 2 Sep. 1916, M&PP XVII: 8152–53. “Wilson Exhorts the Foreign Born,” New York Times, 20 Oct. 1916, p. 1. S. D. Lovell, The Presidential Election of 1916 (Carbondale: Southern Illinois University Press, 1980), 23; Merlo J. Pusey, Charles Evans Hughes, 2 vols. (New York: Macmillan, 1951), 300; Link, Wilson: Campaigns for Progressivism and Peace, 41. Todd, Justice on Trial, 197; Link, Wilson: Campaigns for Progressivism and Peace, 141. As it turned out, no Court vacancies arose in Wilson’s second term.

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William Randolph Hearst had cost $619.56 The Adamson Act, which many regarded as almost revolutionary, provided an opening.57 Hughes derided the Democrats’ capitulation to organized labor, and called the Act a wage-fixing measure misrepresented as an hours law. He visited the birthplaces of Lincoln and Cleveland, to contrast their public-spirited handling of crises to Wilson’s surrender to private interests. Ex-president Roosevelt gladly recounted his own handling of the anthracite coal strike as the model that Wilson should have followed. But the Republicans still campaigned as progressives. They reviewed the national legislation enacted under Roosevelt and Taft, claimed that their own National Monetary Commission was the true source of the Federal Reserve Act, and lamented that the child-labor act left millions of children unprotected.58 Wilson’s victory was one of the closest in American electoral history, despite Hughes’s egregious campaign. The President failed to establish a clear progressive electoral “realignment.” The results were almost identical to those of 1896, except that the Democrats carried Ohio, California, Kentucky, and New Hampshire (the Dakotas exchanged places).59 Wilson did manage to win back some of the Great Plains and mountain states that the Republicans had picked up after 1896. Though he failed to win over the industrial workers en masse, the Adamson Act may have won him crucial votes in Ohio and California.60 Foreign policy probably overshadowed all other issues, and the candidate who boasted that “he kept us out of war” had to ask Congress to declare war within a month of his second inauguration.

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58

59

60

Lovell, Presidential Election of 1916, 42, 79, 123–24; Arthur S. Link and William M. Leary, Jr., “Election of 1916,” in History of American Presidential Elections, 1789–1968, ed. Arthur M. Schlesinger, Jr., 3 vols. (New York: Chelsea House, 1971), II: 2248; Paul A. Freund, “Charles Evans Hughes as Chief Justice,” Harvard Law Review 81 (1967), 38; Pusey, Charles Evans Hughes, 161–93. Lovell, Presidential Election of 1916, 79, 88, 133; Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (Chicago: University of Chicago Press, 1999), 377–84. “Hughes Emphasizes Strike Crisis Issue,” New York Times, 6 Sep. 1916, p. 7; “Hughes Opens Fight on the 8-Hour Law,” ibid., 20 Sep. 1916, p. 1; “Cleveland Home Visited by Hughes,” ibid., 8 Oct. 1916, p. 4; “Roosevelt Hits Eight-Hour Law,” ibid., 1 Oct. 1916. Link and Leary, “Election of 1916,” 2264; Stid, President as Statesman, 115; Cooper, Warrior and the Priest, 253. Lovell, Presidential Election of 1916, 88, 136, 163, 169, 178; “Toledo Labor Vote United for Wilson,” New York Times, 19 Oct. 1916, p. 5; “Labor Vote Failed to Turn to Wilson,” New York Times, 9 Nov. 1916, p. 4; Stanley Coben, A. Mitchell Palmer: Politician (New York: Columbia University Press, 1963), 172; Sanders, Roots of Reform, 384; Link, Wilson: Campaigns for Progressivism and Peace.

14 The Great War

the army and social reform “Once lead this people into war,” New York World editor Frank I. Cobb reported Wilson saying, “and they’ll forget there ever was such a thing as tolerance.” He thought the Constitution would not survive it. That free speech and the rights of assembly would go.1 Whether or not Wilson ever made this statement, the First World War showed that war was a boon to, not the nemesis of, progressivism.2 The progressive impulses of Theodore Roosevelt meshed perfectly with his militarism. But even progressives who professed pacifism recognized the benefits of war. In 1910, Harvard philosopher William James explained that progressives sought “the moral equivalent of war,” a cause that would inspire men to make in peacetime the same sacrifices they made in war. The martial virtues might no longer be needed for war, James argued, but remained “absolute and permanent human goods.” He hoped that the zeal that men had heretofore displayed in wars for plunder and glory could be turned to crusading against civil ills such as gross inequality. “Instead of military conscription,” James called for “a conscription of the whole youthful population to form for a certain number of years a part of the army enlisted against Nature.” James argued that “gilded youth” especially should be drafted to experience the life of the disadvantaged working classes. “The only thing needed henceforward,” James concluded, “is to inflame the civic temper as past history 1

2

On the Wilson statement, see Jerold S. Auerbach, “Woodrow Wilson’s ‘Prediction’ to Frank Cobb: Words Historians Should Doubt Ever Got Spoken,” Journal of American History 54 (1967), 608– 17; Brian J. Dalton, “Wilson’s Prediction to Cobb: Notes on the Auerbach-Link Debate,” Historian 32 (1970), 545–63; Arthur S. Link, “That Cobb Interview,” Journal of American History 72 (1985), 7–17. Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York: Vintage, 1955), 272, that “War has always been the Nemesis of the liberal tradition in America.” Cf. Morton Keller, “The New Deal: A New Look,” Polity 31 (1999), 660; Keller, “The New Deal and Progressivism,” in The New Deal and the Triumph of Liberalism, ed. Sidney Milkis and Jerome M. Mileur (Amherst, MA: University of Massachusetts Press, 2002), 315; Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (New York: Free Press, 2003), 280.

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has inflamed the military temper.”3 In many ways, the First World War was the first New Deal, showing progressives the power that government could exercise in wartime. But America’s war was too brief. Later progressives would seek what historian William Leuchtenburg called “the analogue of war.”4 Most progressives convinced themselves that the war presented an opportunity to show how an empowered government could reshape society. They enthusiastically explored the “social possibilities of war.” John Dewey saw the war as hastening the inevitable socialization of industry that was already underway. Not every war-related socialization would be permanent, he predicted, but “The movement will never go backward.” New Republic contributor (and future New York Times editor) Charles Merz frankly advised that the war be used “as a pretext to foist innovations upon the country.”5 The war power could provide cover for a federal police power. Progressives had hoped to establish compulsory military training even before the war in Europe began. The War Department established training camps in conjunction with high schools and colleges in 1913. Army Chief of Staff Leonard Wood believed that universal military training would produce “increased physical fitness, greater democratization, national security, diminished class barriers, a higher educational level, and decreased crime.” Theodore Roosevelt also praised the democratizing effects of Army service. Secretary of War Newton Baker said that Army camps would be “national universities.”6 Though advocates of local control tried to preserve the old state-militia system as long as possible, Congress passed a conscription act in May 1917. It was artfully entitled the “Selective Service Act” to conceal its coercive nature. President Wilson claimed that the act was “in no sense a conscription of the unwilling: it is, rather, selection from a nation which has volunteered in mass.”7 Volunteer recruitment for the First World War was below that of the Civil War and the Spanish3

4

5

6

7

William James, “The Moral Equivalent of War,” International Conciliation 27 (1910), 3–20; John W. Chambers, To Raise an Army: The Draft Comes to Modern America (New York: Free Press, 1987), 96. William E. Leuchtenburg, “The New Deal and the Analogue of War,” in Change and Continuity in Twentieth Century America, ed. John Braeman (Columbus: Ohio State University Press, 1964); John Milton Cooper, Jr., Woodrow Wilson: A Biography (New York: Knopf, 2009), 434. Sidney Kaplan, “Social Engineers as Saviors: Effects of World War One on Some American Liberals,” Journal of the History of Ideas 17 (1956), 360; David M. Kennedy, Over Here: The First World War and American Society (New York: Oxford University Press, 1980), 44; Otis L. Graham, Jr., The Great Campaigns: Reform and War in America, 1900–28 (Englewood Cliffs, NJ: Prentice-Hall, 1971), 98; Allen F. Davis, “Welfare, Reform, and World War One,” American Quarterly 19 (1967), 520; John Dewey, “What Are We Fighting For?” 22 Jun. 1918, in Characters and Events: Popular Essays in Social and Political Philosophy, 2 vols. (New York: Henry Holt, 1929), 557; Charles Merz, “War as Pretext,” New Republic, 2 Jun. 1917, p. 129. Chase C. Mooney and Martha E. Layman, “Some Phases of the Compulsory Military Training Movement, 1914–20,” Mississippi Valley Historical Review 38 (1952), 634; Russell F. Weigley, History of the United States Army, enlarged ed. (Bloomington: Indiana University Press, 1984), 342; Kennedy, Over Here, 17; Kaplan, “Social Engineers as Saviors,” 530; Newton Baker, “Invisible Armor,” Playground 11 (1918), 473–81. “A Draft of a Proclamation,” ca. 1 May 1917, PWW XLII: 181.

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American War. Whereas only 6 percent of Civil War soldiers were draftees, about two-thirds of those who fought in World War One were drafted.8 Appropriately enough, the first draftees headed to France aboard the USS Leviathan. Reformers regarded the draftees as subjects in a social experiment, who could be improved by army life and return to help reform the rest of society. H. L. Mencken mordantly observed that progressive “uplifters” had shifted their target. “They now concentrate the stupendous power of their rectitude upon the boys in khaki. A year ago it was the poor working girl, may God defend her! But now it is the fair young soldier.”9 The war put prohibition over the top, as progressives resolved their ambivalence about the issue and made it a patriotic duty. Army camps were bone-dry, and the Selective Service Act allowed the President to ban alcohol in areas around the training camps.10 Even more impressive was the social purity campaign undertaken against prostitution and venereal disease, paid out of a discretionary “emergency fund” that Congress had provided the President. The Commission on Training Camp Activities pressured local communities – which were loath to lose the increased business that an army encampment brought – to clamp down on prostitution. By the end of the war, every city in America had ended its “red-light district” policy by which prostitution had been segregated and regulated, and adopted a prohibition policy. Both federal and state authorities arrested and detained women who were suspected of being prostitutes or infected with venereal disease. About 30,000 women were detained in federal institutions, and many more in state ones, on the basis of how they dressed, danced, or walked on the street. “The crime for which women were punished was their failure to adhere to the progressive sexual code,” one historian notes. At the same time, the progressives offended religious conservatives with their amoral, social-hygiene approach to sex. After the war, this campaign continued as Congress funded anti-venereal disease programs.11

the financial revolution Once Congress conscripted men, and compelled them to risk their lives and limbs, it became harder to defend any limits on government power that might compromise the war effort. Calls to “conscript capital” arose, especially from the populist anti-interventionists, who believed that the movement for war was led by bankers and manufacturers (especially of armaments) who lent money or sold goods to the belligerents. Nor should the war be financed by loans, as they 8

9

10 11

Thomas A. Lawrence, “Eclipse of Liberty: Civil Liberties in the United States During the First World War,” Wayne Law Review 21 (1974), 40; Weigley, History of the United States Army, 357; Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (New York: Oxford University Press, 1987), 132; Chambers, To Raise an Army. Quoted in Nancy K. Bristow, Making Men Moral: Social Engineering During the Great War (New York: New York University Press, 1996), 204. Davis, “Welfare, Reform, and World War One,” 529. Bristow, Making Men Moral, 129; H. H. Moore, “Four Million Dollars for the Fight Against Venereal Diseases,” Journal of Social Hygeine 5 (1919), 15–26.

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recalled that the Civil War had created an Eastern plutocracy. Progressives sought to finance the war by taxes on war profits and incomes. The movement began with the 1916 Revenue Act, intended to underwrite the “preparedness” campaign. It doubled most income tax rates from the original, 1913 Act, to a top rate of 13 percent. It provided for more withholding by banks and corporations, an inheritance tax, a special “munitions manufacturers tax,” and the tariff commission. Economist Roy Blakey noted the act’s “radical departures” and “reversals in policies to which it commits the Democratic party, the oldest and in some respects the most conservative of our political organizations.”12 The New Republic called it “distinctly a class measure, intended to appeal to the farmers and to the non-propertied city workers.” Its income tax provisions were “a powerful equalitarian attack upon swollen income.”13 The 1917 tax act lowered income-tax exemptions and raised rates, the top rate to 67 percent and 77 percent in 1918. “Never before in the annals of civilization has an attempt been made to take as much as two-thirds of a man’s income by taxation,” observed economist E. R. A. Seligman. Reckoning that most of the additional war revenue came from taxes on wealth or luxury, he called it “significant evidence of the progress that has been made in the conception of fiscal justice as a result of the democratic development of the last generation. The contrast of this distribution with that of the Civil War period could not be more striking.”14 The war produced a “fiscal revolution.” Never again would federal revenue be less than five times its pre-war average. But progressives feared that excessively high taxes would increase the war’s unpopularity. Secretary of the Treasury William G. McAdoo also rejected market-rate borrowing to pay for the war, pressuring the Federal Reserve to keep interest rates on U.S. bonds low. The “independent” Federal Reserve Board enlisted in the effort. McAdoo preferred to promote popular purchases of government bonds, and used advertising and propaganda to sell the idea of democratic financing for a democratic war. This policy led to the hidden tax of inflation. The money supply rose 75 percent during the war, and consumer prices doubled.15 These tax acts did little more than siphon off some of the vast profits of war business. The war put the last nail in the coffin of Wilsonian antitrust. Only the biggest businesses could fill massive war contracts, and no scruples about collusion could impede them. Many businessmen recognized that government’s wartime needs would allow them to limit competition.16 The director of the 12 13 14 15 16

Roy G. Blakey, “The New Revenue Act,” American Economic Review 6 (1916), 837. “The Democratic Revenue Bill,” New Republic, 26 Aug. 1916, p. 81. E. R. A. Seligman, “The War Revenue Act,” Political Science Quarterly 33 (1918), 18, 16. Kennedy, Over Here, 103–12. Paul A. C. Koinstinen, “The ‘Industrial-Military Complex’ in Historical Perspective: World War I,” Business History Review 41 (1967), 392; Melvin I. Urofsky, Big Steel and the Wilson Administration: A Study in Business-Government Relations (Columbus: Ohio State University Press, 1969), 156, 181, 191; Murray N. Rothbard, “War Collectivism in World War I,” in A New History of Leviathan, ed. Ronald Radosh and Rothbard (New York: E. P. Dutton, 1972); Kennedy, Over Here, 142.

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Council of National Defense, the first official agency established to coordinate war production, admitted that government policy “was a tremendous invigoration of big business and hard on small business.”17 The railroads provide an interesting example. The industry already suffered from a generation of progressive regulation that kept its revenues low and its expenses high (especially after the Adamson Act). Preparedness put additional burdens on the carriers, yet the Justice Department advised them that the Interstate Commerce Act still prohibited pooling. The system broke down and the government took over the industry in 1917, and put the roads under a new Railroad Administration, out of the hands of the shipper-friendly ICC. The administration quickly began pooling and raised rates. Yet it granted remarkably generous terms to the owners. The government guaranteed the railroads a return equal to that of 1915–17, an unusually profitable period. Everywhere the government touched business, it encouraged maximum production, with little attention to cost.18

the great delegation The government also tried to maximize the production of food and fuel, to feed and move the American and Allied armies. The Lever Act of 1917 struck at efforts to monopolize “or to make any unjust or unreasonable rate or charge” for food or fuel. The Act gave the President power to license food and fuel businesses, to requisition their products, and to seize their plants if they violated the Act. He could issue regulations to prevent “undue enhancement, depression, or fluctuation of prices” and to prevent “injurious speculation” or other “evil practices.” He could fix prices for commodities, though Congress set a minimum price for wheat. The Act also prohibited the use of food to manufacture alcoholic beverages. The Lever Act was to remain in effect until the termination of the war, when “the fact and date of such termination shall be ascertained and proclaimed by the President.”19 The Act was remarkably broad. As one commentator noted, it used the same language as the infamously oppressive 1349 Statute of Laborers.20 But the federal courts upheld it, one noting that “The powers of Congress, in time of war, are comparable to the police powers of the states in time of peace, and equally incapable of fixed limits.”21 In 1921, however, the Supreme Court struck down section four of the Act, since it did not define “unjust or unreasonable” prices.22 The government succeeded greatly in 17 18

19 20

21 22

Grosvenor B. Clarkson, Industrial America in the World War (Boston: Houghton Mifflin, 1923), 173. Albro Martin, Enterprise Denied: Origins of the Decline of American Railroads, 1897–1917 (New York: Columbia University Press, 1971), 352; K. Austin Kerr, American Railroad Politics, 1914–20: Rates, Wages, and Efficiency (Pittsburgh: University of Pittsburgh Press, 1968), 46, 72, 84; Kennedy, Over Here, 254. 40 Stat. 276 (1917). J. R., Jr., “Constitutional Problems Raised by the Lever Act,” University of Pennsylvania Law Review 69 (1920), 57. U.S. v. Oglesby Grocery Co., 264 F. 691 (1920), 692. U.S. v. L. Cohen Grocery Co., 255 U.S. 81 (1921).

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expanding agricultural and fuel output, and this overproduction would contribute to the persistent sickness in these sectors of the economy in the post-war years. Initially, the government attempted to coordinate war production with the help of business leaders, who volunteered their services for “a dollar a year.” This system produced scandalous cases of self-dealing, which led to the creation of a War Industries Board to coordinate production.23 The board did not improve the chaotic mobilization effort. Many businessmen found “their economic fortunes threatened not by government regulation but by government chaos.”24 Disgruntled congressmen proposed to create a committee on the conduct of the war and a new War Cabinet to fill in for the President. Wilson’s response generated one of the most constitutionally significant conflicts of the war. He told Congress that such legislative oversight would “render my task of conducting the war practically impossible,” and made the dubious claim that Congress had “rendered Mr. Lincoln’s tasks all but impossible” during the Civil War.25 To disarm his congressional critics, Wilson had Senator Lee Overman of North Carolina introduce a bill that would give the President sweeping powers to reorganize the mobilization agencies. The Overman Act gave the President the power “to make such redistribution of functions among executive agencies as he may deem necessary” for the duration of the war and the following six months. The Act limited his powers to those “exercised only in matters relating to the conduct of the present war,” and the agencies affected were to revert to their pre-war status once the war was over.26 This was a tremendous delegation of power to the President. Like the Lever Act, the Overman Act produced vehement opposition in Congress. The argument of war necessity carried the day, but not before one congressman offered a facetious amendment that “if any power, constitutional or not, has been inadvertently omitted from this bill, it is hereby granted in full.”27 The Overman Act starkly contrasted wartime constitutionalism under Wilson and Lincoln. There was no parallel during the Civil War to the acts regulating food and fuel production, the prohibition of alcoholic beverage manufacture, or coordination of industrial production and labor. The Civil War Congress did not enact permanent legislation such as the Trading with the Enemy Act. The contrast in policies is most evident in the treatment of political dissent. Lincoln’s most bold and controversial acts of presidential power derived from the habeas corpus clause of the Constitution, whereas Wilson’s administration enforced a

23

24 25 26 27

Robert D. Cuff, “Woodrow Wilson and Business-Government Relations During World War I,” Review of Politics 31 (1969), 385–407. Koinstinen, “The ‘Industrial-Military Complex,’” 390–95. Wilson to Asbury Francis Lever, 23 Jul. 1917, PWW XLIII: 245. 40 Stat. 556 (1918). Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: W. W. Norton, 1991), 440.

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Sedition Act.28 The punishments meted out under the Sedition Act were notably more severe than Lincoln’s usually brief habeas detentions. Wilson, however, faced no “invasion or rebellion.” This shows the wisdom and foresight of the founders – the power should not be necessary in foreign wars, and indeed was not in the First World War. Ultimately, the presidential pardon power that President Harding exercised mitigated the harsh effects of wartime restriction. Though the Civil War affected the American people and territory to a far greater extent than did the First World War, the former saved constitutional government whereas the latter weakened it. Business–government relations were not always harmonious, and were less “voluntaristic” than they appeared.29 Steel makers may have profited handsomely, but they faced several threats of government takeover during the war. The Justice Department also refused to drop its antitrust suit against U.S. Steel. Taxes recouped up to 70 percent of the industry’s “excess profits.” Above all, the government forced them to adopt the 8-hour day and to hold recognition elections and bargain with unions. When Smith & Wesson refused to abide by government labor rulings, the government seized its plant.30

labor policy The Great War dramatically boosted the status of organized labor. Though Gompers, like many other labor leaders, initially opposed the war, he came to support it, and helped the federal government to put down his socialist and syndicalist rivals who maintained their initial opposition. The AFL used the war, in Wilson’s depiction of its democratic aims, to promote a vision of “industrial democracy.” Gompers, who as recently as 1914 was facing jail time for contempt of court in a boycott case, now sat in the highest counsels of the government, as a member of the Advisory Committee of the Council of National Defense. In June 1917, Wilson was the first president to address an AFL convention. In exchange for government promotion of organization, American unions took an informal “nostrike” pledge. Business leaders complained that the AFL had taken over the government; leftists countered that the federation had sold out the working class.31 28

29

30

31

Congress had enacted a Seditious Conspiracies Act in 1861, but nobody was convicted under it. Catherine M. Tarrant, “To ‘Insure Domestic Tranquility’: Congress and the Law of Seditious Conspiracy, 1859–61,” American Journal of Legal History 15 (1971), 107–23. Robert D. Cuff, “The Ideology of Voluntarism and War Organization During the Great War,” Journal of American History 64 (1977), 358–72; Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA: Belknap, 1984), 147. Graham, The Great Campaigns, 106; Valerie Jean Conner, The National War Labor Board: Stability, Social Justice, and the Voluntary State in World War One (Chapel Hill University of North Carolina Press, 1983), 130. Joseph A. McCartin, Labor’s Great War: The Struggle for Industrial Democracy and the Origins of Modern American Labor Relations, 1912–21 (Chapel Hill: University of North Carolina Press, 1997), 7, 81.

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Wilson created a National War Labor Board, among the most progressive agencies ever established. Frank Walsh, a radical labor lawyer, and former President Taft served as joint chairmen. The two worked remarkably well together. Though Walsh called the NWLB “a new deal for American labor,” he subordinated union demands to war needs, hoping that the board could establish permanent, post-war standards. Taft saw the board as a necessary institution to keep labor peace on the home front. Though, like the War Industries Board, the NWLB had no formal legal enforcement power, it did exert considerable influence over employers and unions. Most contractors were willing to accept provisions for board mediation of labor disputes as a condition of lucrative cost-plus contracts. It settled 1,200 disputes; only three met resistance. Besides raising wages and reducing hours, the board prohibited yellowdog contracts and discrimination against union members, and promoted “shop committees” that were de facto unions.32 When the Western Union Company resisted the board’s entreaties, Congress gave the president the power to commandeer the company. When unions balked, federal agents would raid their offices, arrest their leaders, and threaten striking workers with the cancellation of their draft exemptions.33 Though the government could take a hard line with recalcitrant unions, organized labor on the whole believed that it had benefited from war policies, and drifted still further from its reputed “voluntarism.” AFL membership more than doubled, reaching 5 million, during the war. But its numbers would collapse almost as fast as they grew once federal promotion ended. Gompers regretted that the war ended as quickly as it did, before the federation was able to consolidate its gains.34 This was a feeling shared by many progressives, who hoped that the war could provide a postwar moral equivalent.

sedition Historians have paid the most attention to the war’s impact on freedom of expression. Almost no constitutional law of free speech existed before World War One. The Sedition Act of 1798 had expired in 1801, and was never 32

33

34

Conner, The National War Labor Board, 33; Lewis L. Lorwin and Arthur Wubnig, Labor Relations Boards: The Regulation of Collective Bargaining Under the National Industrial Recovery Act (Washington: Brookings, 1935), 10; Marc Karson, American Labor Unions and Politics, 1900–18 (Carbondale: Southern Illinois University Press, 1958), 99; Kennedy, Over Here, 267; John S. Smith, “Organized Labor and Government in the Wilson Era, 1913–21: Some Conclusions,” Labor History 3 (1962), 278; McCartin, Labor’s Great War, 97. Conner, The National War Labor Board, 46; McCartin, Labor’s Great War, 91; 40 Stat. 904 (1918); Marc Allen Eisner, From Warfare State to Welfare State: World War I, Compensatory State Building, and the Limits of the Modern Order (University Park: Pennsylvania State University Press, 2000), 70; “To the Members of District Lodge no. 55 and Other Striking Workers,” 13 Sep. 1918, PWW IL: 539. Smith, “Organized Labor and Government,” 272; Frank L. Grubbs, The Struggle for Labor Loyalty: Gompers, the A.F.L., and the Pacifists, 1917–20 (Durham, NC: Duke University Press, 1968), 129.

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reviewed by the Supreme Court. Though Congress did enact a Seditious Conspiracy law in 1861, most of the civil liberty issues of the rebellion arose from Lincoln’s suspension of the writ of habeas corpus. After the Civil War, when the Court began to restrict the use of military tribunals for civilians – notably, to silence an anti-Reconstruction editor in Mississippi – Congress used its Article III power to remove such cases from the Court’s jurisdiction.35 Free speech, and civil liberties more generally, had a corporate and local, rather than an individual and national, aspect in the nineteenth century.36 This communal sense retained elements of the ancient understanding of the term “liberty” in the Greek polis and Roman republic.37 It recognized the right of the local majority to define and enforce its moral norms. Dissenters could either conform or move to a more congenial community. This view distinguished “freedom” of speech and of the press from “license,” though this distinction would always be difficult to define.38 As Alexander Hamilton put it in Federalist 84, “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved’? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” Even by 1900, free speech meant little more than no prior restraint.39 States were free to punish speech that had a “bad tendency.” Thus the Supreme Court in 1915 upheld the conviction of pamphleteers who published a critical analysis of Washington state’s antinudism law.40 The nudists did not engage in nudism; they simply mocked the law in a pamphlet entitled “The Nudes and the Prudes.” Their conviction implied that the state could punish any expression critical of the laws, or having any “bad tendency,” not leaving much substance to freedom of speech. In 1917, the Civil War seditious conspiracies act remained available, but many demanded more draconian measures.41 Oregon Senator George

35 36

37

38

39

40 41

Tarrant, “To ‘Insure Domestic Tranquility,’” 107–23; Ex parte McCardle, 74 U.S. 506 (1869). John P. Roche, “American Liberty: An Examination of the ‘Tradition’ of Freedom,” in Aspects of Liberty: Essays Presented to Robert E. Cushman, ed. Milton R. Konvitz and Clinton Rossiter (Ithaca, NY: Cornell University Press, 1958); Kelly, Harbison, and Belz, The American Constitution, 508–10; R. H. Helmholz, “The Law of Nature and the Early History of Unenumerated Rights,” Journal of Constitutional Law 9 (2007), 412. See the celebrated essay by Benjamin Constant, “The Liberty of the Ancients Compared with That of the Moderns,” in Political Writings, ed. Brancamaria Fontana (Cambridge: Cambridge University Press, 1988), 311. John Winthrop, Speech to the General Court, 3 Jul. 1645, in The Journal of John Winthrop, 1630–49, ed. Richard S. Dunn et al. (Cambridge, MA: Harvard University Press, 1996). David M. Rabban, Free Speech in Its Forgotten Years (Cambridge: Cambridge University Press, 1997); Alexis Anderson, “The Formative Period of First Amendment Theory, 1870–1915,” American Journal of Legal History 24 (1980), 56–75. Fox v. Washington, 236 U.S. 273 (1915). See also Patterson v. Colorado, 205 U.S. 454 (1907). Stanley Cohen, A Mitchell Palmer: Politician (New York: Columbia University Press, 1963), 215; Investigation Activities of the Department of Justice, S. Doc. 12 (Washington: G.P.O., 1919), 19–22.

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Chamberlain wanted courts martial and capital punishment for anyone who published anything “endangering the success of the military forces.”42 Congress might enact a sedition law as an adjunct of the war power while respecting the First Amendment, as the Federalists had argued the 1798 Sedition Act did. But Wilson wanted more, a prior-restraint censorship law. He called it “absolutely necessary to the public safety,” but press opposition led Congress to eliminate it.43 The Espionage Act of 1917 provided for the punishment of “false reports or false statements with the intent to interfere with the operations or success of the military or naval forces of the United States or to promote the success of its enemies,” or inducing “insubordination, disloyalty, mutiny, or refusal of duty” by servicemen, or to obstruct the draft. Using the method developed in anti-vice campaigns, Congress also gave extensive powers to the Postmaster General to purge seditious publications from the mails.44 Amendments in May 1918 to what was now called the “Sedition Act,” added breadth and specificity to the Act.45 Ultimately the government initiated 2,000 prosecutions and secured 1,000 convictions under the Act, though not a single case involved genuine spying or sabotage.46 Wilson’s Attorney General, Albert Burleson, enforced it most zealously, effectively muzzling antiwar periodicals. He told newsmen that they could not publish such statements as “the government is controlled by Wall Street,” heretofore the mantra of progressive politicians. Reflecting the new status of organized labor, Burleson threatened to deny postal privileges to The Nation for its criticism of Samuel Gompers. Another journal lost its mailing privileges when it called for more taxation and less borrowing to pay for the war. The Post Office Solicitor warned against the “exaggerated sentimentalism” of civil libertarians and “misplaced reverence for legal axioms” by the courts.47 The government effectively destroyed the syndicalist Industrial Workers of the World. On the other hand, some progressive judges tried to use the Sedition Act to shield socialists and radical agrarians. Wilson called for a peacetime sedition act in 1919, and Attorney General A. Mitchell Palmer prepared one for Congress.48

42

43

44 45 46

47

48

Paul L. Murphy, World War One and the Origins of Civil Liberties in the United States (New York: Norton, 1979), 76. “Wilson Demands Press Censorship,” New York Times, 23 May 1917, p. 1; Thomas F. Carroll, “Freedom of Speech and of the Press in War Time: The Espionage Act,” Michigan Law Review 17 (1919), 624. 40 Stat. 217 (1917). 40 Stat. 553 (1918). Harry N. Scheiber, The Wilson Administration and Civil Liberties, 1917–21 (Ithaca, NY: Cornell University Press, 1960), 18. The government also used the 1798 Alien Enemies Act to arrest 6,300 and intern 2,300 enemy aliens. Murphy, World War One, 100; Scheiber, The Wilson Administration and Civil Liberties, 32; O. A. Hilton, “Public Opinion and Civil Liberties in Wartime, 1917–19,” Social Science Quarterly 28 (1948), 353, 348. Murphy, World War One, 204; “An Annual Message on the State of the Union,” 2 Dec. 1919, PWW LXIV: 111; “Palmer for Stringent Law,” New York Times, 16 Nov. 1919, p. 1.

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Many wartime acts remained in effect well after the armistice, and brought up civil liberties issues in peacetime. The Lever Act made the remarkable delegation of the power to declare the end of the war. When Congress passed a resolution declaring the war at an end, Wilson vetoed it.49 As a result, the federal government continued to wield extraordinary powers in the post-war reconversion period. A. Mitchell Palmer filled the vacuum left by the President’s preoccupation with diplomacy and his subsequent debility. The “Palmer raids” began first on alleged hoarders and profiteers. To congressmen who doubted the government’s power, Palmer promised, “Given this penalty, we can break the backbone of this profiteering in sixty days, and then you won’t have to worry about constitutionality.”50 Federal agents seized 10 million eggs in Detroit, 200,000 pounds of sugar in Canton, 100,000 pounds of beans in Kansas City, and nearly 12,000 pigs’ ears nationwide. Federal agents calculated the cost of coffee in restaurants, denying one luncheonette a price increase because they disliked the quality of its mugs and service. Palmer then turned his attention to railroad and coal unions that threatened strikes. Labor leaders unpleasantly discovered that the Lever Act applied to them as well. Palmer then extended his crusade into a general “Red Scare,” claiming that Bolshevik agents fomented the strikes.51 Progressives had been red-baiting for decades, claiming that only their reforms could prevent the incipient proletarian revolution that they imagined the “purblind folly of the very rich” had caused.52 Though some progressives denounced Palmer as a reactionary witch-hunter, he had been a prominent progressive before the war, a voluble partisan of organized labor, and sponsor of the child labor bill in Congress. His wartime tactics mirrored those that the progressives had used before the war.53 The Supreme Court upheld the Sedition Act shortly after the armistice. In three unanimous decisions, Oliver Wendell Holmes emphasized the wartime circumstances of the restriction. In “ordinary times the defendants. . . would have been within their constitutional rights. But the character of any act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . .. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent.”54 But Holmes’s acute analogies and pithy aphorisms confused more than they clarified. The “clear and present danger” maxim could serve as a synonym

49

50 51 52 53 54

40 Stat. 276 (1917), sec. 24; “Wilson Vetoes Peace Resolution,” New York Times, 28 May 1920, p. 1. “Government Begins Food Seizures,” New York Times, 15 Aug. 1919, p. 1. Coben, A. Mitchell Palmer, 156–68, 176. Theodore Roosevelt to William Howard Taft, 15 Mar. 1906, LTR V: 183. Coben, A. Mitchell Palmer, vii–viii, 266; Murphy, World War One, 251; Kennedy, Over Here, 59. Schenck v. U.S., 249 U.S. 47 (1919), 52.

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for the old “bad tendency” test, or it could be turned into something less restrictive. This became apparent when, later that year, he and Justice Brandeis dissented in a similar Sedition Act case. Holmes argued that circumstances had changed, and that the publications involved did not present a clear and present danger. He dismissed the anti-war material in this case as “the surreptitious publishing of a silly leaflet by an unknown man.”55 He broached a radically libertarian view of free speech. Belief in the truth of one’s opinions quite logically led people to suppress dissent. But, Holmes said, “men have realized that time has upset many fighting faiths,” reflecting his own Civil War disillusionment, and “come to believe. . . that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.”56 The justice who had berated the Court for reading Herbert Spencer into the Fourteenth Amendment now read John Stuart Mill into the First Amendment. The free-trade principle that Holmes disdained in economic cases became his touchstone for non-economic or civil liberties cases, an adumbration of the 1938 post-New Deal “preferred freedoms” doctrine.57 On second glance, Holmes’s positivism necessarily vitiated his civil libertarianism. It is hard to see how his belief that “the best test of truth is the power of the thought to get itself accepted in the competition of the market” provided any protection against majority tyranny and the adoption of speech-limiting laws. The Sedition Act, after all, had gotten itself accepted. As Holmes put it in 1925, “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”58 Progressive-era discussions of free speech issues displayed no articulation of the Founders’ natural rights justification of free speech. The Founders’ fundamental principle was that speech was a natural, individual right that government was instituted to protect. As Madison put it, “A man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of objects on which to employ them. In a word, as a man is said to have a right to his 55

56 57

58

Abrams v. U.S., 250 U.S. 616 (1919), 628. The conviction might easily have been overturned because the defendant had principally opposed American intervention against the Soviet Union, not against Germany. Holmes’s suggestions along these lines (626, 628–29) were eclipsed by his other rhetorical flourishes. Many of these cases also presented clear instances of unfair procedure and bias. Thomas A. Lawrence, “Eclipse of Liberty: Civil Liberties in the United States During the First World War,” Wayne Law Review 21 (1974), 90. Abrams v. U.S., 630. Bradley C. S. Watson, Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence (Wilmington, DE: I.S.I., 2009), 140. Gitlow v. New York, 268 U.S. 652 (1925), 673.

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property, he may be equally said to have a property in his rights.”59 But progressives rejected individual, natural rights tout court – for “personal” rights as much as for economic rights. In their view, free speech was valuable for its social or public benefit. Good policy was more likely to result from the free exchange of ideas. In a similar way, many progressives preferred capitalism to socialism because it was more efficient and socially beneficial, but not because anyone had a right to property.60 Roscoe Pound argued that personal rights were primarily important “as guarantees of political efficiency and instruments of social progress,” but lamented that “in our bills of rights, however, individual free speech is always guaranteed as an individual right.”61 As Zechariah Chafee put it, “The great trouble with most judicial construction of the Espionage Act is that this social interest has been ignored and free speech has been regarded as merely an individual interest.” He warned of “the great evil of all this talk about rights.”62 John Dewey, the leading progressive theorist, gave his approval to wartime “conscription of thought.” His only qualm was on practical grounds – that suppression usually produced more, not less, dissent. He chortled that the wartime suppression had led many progressives to resort to natural rights principles. “Indeed, there is something rather funny in the spectacle of ultrasocialists rallying to the old banner of Elihu Root with its inscription of the sanctity of individual rights and guaranties, and crying aloud all the early Victorian political platitudes.”63 Though he concurred in Holmes’s opinions, Justice Brandeis thought that Holmes had not paid enough attention to the public-utility basis of free speech. For Brandeis, free speech was not a right but a duty, something that the individual owed to the polis, in the classical republican sense of civic virtue.64 The public reaction to wartime progressivism was well underway by the election of 1918. If Wilson’s 1916 re-election came chiefly from his maintenance of peace, the decision for war was bound to exact a political price. War policies such as high taxes and prohibition surely lost more votes than they gained. The Republicans likely captured Congress in 1918 because the administration decided to impose price controls on wheat but not cotton, alienating Midwesterners and reinforcing the image of Southern favoritism. Wilson’s cotton-coddling 59

60

61 62 63 64

“Property,” 29 Mar. 1792, in The Papers of James Madison, ed. William T. Hutchinson et al., 10 vols. (Chicago: University of Chicago Press, 1962–77), XIV: 266–68. None were free-expression absolutists, as the controversy over the Sedition Act showed. Morris R. Cohen, “Property and Sovereignty,” Cornell Law Quarterly 13 (1927–28), 27; Ray A. Brown, “Police Power – Legislation for Health and Personal Safety,” Harvard Law Review 42 (1929), 885, 896; Charles Forcey, The Crossroads of Liberalism: Croly, Weyl, Lippmann, and the Progressive Era, 1900–25 (New York: Oxford University Press, 1961), 214. Roscoe Pound, “Interests of Personality,” Harvard Law Review 28 (1915), 453. Zechariah Chafee, “Free Speech in Wartime,” Harvard Law Review 32 (1918), 952, 957. John Dewey, “Conscription of Thought,” New Republic, 1 Sep. 1917, p. 129. Pnina Lahav, “Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech,” Journal of Law and Politics 4 (1987–88), 451–82; Rabban, First Amendment in Its Forgotten Years, 343. Brandeis was particularly fond of the polis depicted by the classicist Alfred Zimmern.

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arose from his unwillingness to lose Southern support for his tax legislation. Black migration into Northern cities augmented the Republican vote. Femalesuffrage advocates also resented Southern domination of the Democratic party.65 The Democrats had a razor-thin majority in Congress that went along with Wilson’s equally close presidential victory. To a large degree, the election of 1920 represented a return to the normal Republican-majority Civil War system. No Democrat won a gubernatorial or senatorial race outside of the former Confederacy. The war provided a glimpse of what unrestrained government was capable of – what Robert A. Woods, the President of the National Conference of Social Work, hailed in 1918 as “the regimentation of the free.” Woods rejoiced that the war had made it possible for “every nook and corner of our cities” to be “under the close, responsible, friendly surveillance of men and women representing much that is best in our national life.” With progressive taxation, “we see the valleys begin to be exalted, and the hills begin to be brought low.” There was more progress to be made. “The completion of the great antialcoholic crusade has for us an irresistible compulsion; and the elimination of the feebleminded strain from out of our national stock must soon take its place as one of the foremost articles of discerning statesmanship,” he said of the eugenic campaign. “If all these things are now so possible, so well-nigh achieved. . . why should it not always be so? Why not continue on into the years of peace this close, vast, wholesome organism of service, of fellowship, of creative power?”66 Unrestrained progressivism of this kind fed a post-war desire for “normalcy.”67

65

66 67

Seward W. Livermore, Politics Is Adjourned: Woodrow Wilson and the War Congress (Middletown, CT: Wesleyan University Press, 1966), 245; David Burner, “The Breakup of the Wilson Coalition of 1916,” Mid-America 45 (1963), 18–35; Selig Adler, “The Congressional Election of 1918,” South Atlantic Quarterly 36 (1937), 447–65. Robert Woods, “The Regimentation of the Free,” Survey 40 (6 Jul. 1918), 395–99. Bristow, Making Men Moral, 212; Davis, “Welfare, Reform and World War I,” 532–33.

15 The Return of the Regular Republicans

harding and coolidge The return of the “regular” Republicans to full control of the federal government in 1921 slowed progressive reform, and many wartime programs were scaled back. The Republicans finally declared the war over in 1921, thus ending the basis for such legislation as the Lever Act. The Republicans enacted no peacetime Sedition Act, and President Harding pardoned most of those convicted under the wartime Act. Postal censorship had continued into 1921, but the new Postmaster General ended it and reaffirmed the principle of liberty.1 Congress reduced taxes and spending dramatically, though rates and revenues did not return to pre-war levels, and nobody seriously considered doing away with the income tax altogether. Similarly, the Federal Reserve Board remained in place. The Federal Trade Commission survived the decade, maintaining a progressiveDemocratic majority until 1925. In reaction to its hostile report on the meatpackers, Congress gave power to regulate that industry to the Department of Agriculture in the Packers and Stockyards Act of 1922. The Supreme Court also reined in the commission, holding that it could not impose its own definition of “unfair methods of competition,” and allowing courts to review its factual findings.2 In 1925, with the appointment of the outspoken William E. Humphrey, Republicans won a majority on the five-man commission. It now began to restrain itself, particularly by ending the practice of “fishing expeditions” – sweeping investigations without a particular allegation of wrongdoing. Senate progressives were so dissatisfied that the commission had failed to expose a nefarious electric 1

2

Harry N. Scheiber, The Wilson Administration and Civil Liberties, 1917–21 (Ithaca, NY: Cornell University Press, 1960), 32. Carl McFarland, Judicial Control of the Federal Trade Commission and the Interstate Commerce Commission, 1920–30 (Cambridge, MA: Harvard University Press, 1933); Walter Jaenicke, “Herbert Croly, Progressive Ideology, and the FTC Act,” Political Science Quarterly 93 (1978), 490.

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“power trust” in 1927 that they began an investigation of their own. Several progressives called for the repeal of the FTC Act.3 President Warren G. Harding exemplified the regular Republicans’ desire for “normalcy.” When accepting the party’s nomination, he noted that, to win the war, “In the name of democracy we established autocracy.” But “our alarm is over the failure to restore the constitutional methods when the war emergency ended.” War necessity could easily become a pretext for class legislation.4 He told Congress, “I am very sure we shall have no conflict of opinion about constitutional duties or authority.” The war had necessitated the expansion and concentration of power in the executive, but these should rest in peace. “I must disavow any desire to enlarge the Executive’s powers or to add to the responsibilities of the office,” Harding said. “They are already too large.”5 But he gave no clear expression to the constitutional principles behind his policies.6 Though scholars have vindicated much of Harding’s reputation from the unfair aspersions of progressive historians, even his most ardent defenders would not classify him as a profound constitutionalist.7 His vice-president and successor, on the other hand, might be called America’s last constitutional president. Calvin Coolidge had been a moderate progressive in Massachusetts politics, voting for full-crew laws on railroads, maternal assistance, the income tax, direct election of U.S. senators, and legalized picketing. The breaking of the 1919 Boston police strike, which brought him national notoriety and the vice-presidential nomination, was somewhat out of character and less his doing than it appeared.8 As president, he often observed that demands for unconstitutional federal laws arose form the states’ failure to act – presumably on such matters as child labor and education. He attributed the prohibition amendment to the wet states’ “failing to meet the requirements of a national demand.”9 But he sincerely venerated the Founders’ principles. He gave classic expression to the natural law tradition when he told the Massachusetts Senate, “Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness.” In the face of progressive critics’ claim that judges had elevated property rights over human rights he said, “Ultimately, property rights and personal rights are the same thing.”10 On the 3

4

5 6

7

8

9 10

G. Cullom Davis, “The Transformation of the Federal Trade Commission, 1914–29,” Mississippi Valley Historical Review 49 (1962), 437–55. Official Report of the Proceedings of the Seventeenth Republican National Convention (New York: Tenny, 1920), 258, 263. “First Annual Address to Congress,” 6 Dec. 1921, M&PP, 9020, 9024. One of his better efforts was his address on the unveiling of the statue of Alexander Hamilton, 17 May 1923, M&PP 9212–16. Eugene P. Trani and David L. Wilson, The Presidency of Warren G. Harding (Lawrence: University Press of Kansas, 1977), 190. Robert Sobel, Coolidge: An American Enigma (Washington: Regnery, 1998), 62–79; Donald R. McCoy, Calvin Coolidge: The Quiet President (New York: Macmillan, 1967), 49, 92–96. “Memorial Day Address,” 30 May 1925, M&PP 9501. Address to the Massachusetts Senate, 7 Jan. 1914, in Have Faith in Massachusetts: A Collection of Speeches and Messages, 2d ed. (location of publisher unknown: Hardpress, 2006), 5.

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sesquicentennial of the Declaration of Independence he said, “About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advantage over the people of that day, and that we may discard their conclusions for something more modern. But that reasoning cannot be applied to this great charter. If all men are created equal, that is final.” In fact, he argued, the progressives were appealing to ideas that the Founders had outgrown. Coolidge reiterated that “The ultimate sanction of the law rests upon the righteous authority of the Almighty. . . In my opinion very little of just criticism can attach to the theories and principles of our institutions.” He urged Americans to recover the thought of the Founders, particularly its religious origins. The Declaration was “the product of the spiritual insight of the people. The things of the spirit come first.”11 A sympathetic biographer notes that “In an age that hooted at absolutes and jeered at fundamentals, Coolidge was a great idealist.”12 But an element of insouciance or nostalgia marked some of the conservatism of the 1920s, exhibiting a failure to recognize how far their principles had been damaged in preceding decades, and an inability to imagine effective means for their revival. When Coolidge said such things as “So long as wealth is made the means and not the end, we need not greatly fear it. And there never was a time when wealth was so generally regarded as a means, or so little regarded as an end, as today,” he sounded rather out of place in the mid-1920s. When he said “the chief ideal of the American people is idealism. I cannot repeat too often that America is a nation of idealists,” one suspects that the repetition was more wish than belief.13 His own difficulties with Congress indicated the depth of the problem. One sign of the inroads of progressivism was that, whereas a progressive Theodore Roosevelt was frustrated by a conservative Congress, now a progressive Congress faced a conservative president. Friends, such as the patriots who devised Constitution Day in 1919, and the many states that enacted requirements that public schools teach more civics courses, tried to rally popular constitutionalism. Solicitor General James M. Beck led this movement of constitutional revival, helping to establish the National Association for Constitutional Government. Coolidge wrote a preface to his book The Constitution of the United States that praised the founders and sold more than 50,000 copies before 1928. But the broad and popular constitutional movement was rather shallow. It made no impression on the law schools. While Beck was

11

12 13

Address, 5 Jul. 1926, M&PP 9581–83; Johnathan O’Neill, “Constitutional Maintenance and Religious Sensibility in the 1920s: Rethinking the Constitutionalist Response to Progressivism,” Journal of Church and State 51 (2009), 24–51. McCoy, The Quiet President, 294. “The Press Under a Free Government,” 17 Jan. 1925, in Foundations of the Republic: Speeches and Essays (New York: Scribner’s, 1926), 188, 190.

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popularly known as “Mr. Constitution,” prominent legal Realist Thomas Reed Powell privately referred to him as “the idiot.”14

grants-in-aid Though such progressive hopes as a $100 million federal department of education went nowhere in Congress, other social welfare programs continued into the 1920s.15 The 1916 road-subsidy program was extended and centralized in 1921, with greater federal inspections and supervision of state highway departments. The U.S. Bureau of Public Roads suspended funds for several states that did not conform to federal standards.16 The Republicans retained the estate tax, introduced as a “preparedness” measure in 1916. Moreover, they allowed taxpayers in states that had inheritance taxes to deduct those taxes from their federal tax. The act was aimed particularly at Florida, whose lack of such a tax made it a “millionaire’s haven.”17 In 1921, the Republican Congress enacted the Sheppard–Towner “Maternity Act,” a grant-in-aid program to induce states to develop programs in maternal and infant health. This Act reflected politicians’ fear of newly enfranchised women. Female welfare advocates such as Florence Kelley recognized the power and appeal of motherhood and family, and lobbied vehemently for its enactment. She warned dilatory congressmen that if they foiled the bill they would be “like King Herod, condemning infants to death.”18 Harding endorsed the bill as a candidate and signed it as president. Though the legislation establishing the program was permanent, it required periodic congressional appropriations. Later in the decade, the power of the female vote seemed less formidable, and in 1927 Congress gave the program a two-year extension, but ended it. Coolidge observed that the program “opens up the whole subject of state aid, which despite frequent warnings continues strongly entrenched in federal operations.” The Act stood out as a post-war 14

15

16

17

18

Morton Keller, In Defense of Yesterday: James M. Beck and the Politics of Conservatism, 1861– 1936 (New York: Coward-McCann, 1958), 159; Michael Kammen, A Machine that Would Go of Itself: The Constitution in American Culture (New York: St. Martin’s, 1994), 224–32, 249; Maxwell Bloomfield, Peaceful Revolution: Constitutional Change and American Culture from Progressivism to the New Deal (Cambridge, MA: Harvard University Press, 2000), 76; Powell, “Constitutional Metaphors,” New Republic, 11 Feb. 1925, pp. 314–15. William C. Bagley, “Federal Aid for Public Schools,” National Education Association Proceedings 59 (1921), 618–23; Thomas Sterling, “Constitutional and Political Significance of Federal Legislation on Education,” University of Illinois Bulletin 19 (1921), 89–97; Lynn Dumenil, “‘The Insatiable Maw of Bureaucracy’: Antistatism and Education Reform in the 1920s,” Journal of American History 77 (1990), 499–524. Jane Perry Clark, The Rise of a New Federalism: Federal-State Cooperation in the United States (New York: Russell & Russell, 1965 [1938]), 142, 154, 203. Eugene Oakes, “The Federal Offset and the American Death Tax System,” Quarterly Journal of Economics 54 (1940), 566–73. Joseph B. Chepaitis, “Federal Social Welfare Progressivism in the 1920s,” Social Service Review 46 (1972), 219; J. Stanley Lemons, “The Sheppard-Towner Act: Progressivism in the 1920s,” Journal of American History 55 (1969), 778.

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extension of progressive legislation, but it also stood out as one that Congress ended. “When once the government engages in such an enterprise it is almost impossible to terminate its connection therewith,” Coolidge warned.19 The Sheppard–Towner Act provided the opportunity for the Supreme Court to consider the constitutionality of the grant-in-aid idea. The Court reviewed two suits against it, one by the state of Massachusetts and one by an individual taxpayer. Solicitor General Beck made a far-reaching argument for the exercise of federal power in maternal and infant health. The United States had “a direct and practical interest in the new citizen,” who would “have many relations to the federal government as voter, taxpayer, and possible soldier.”20 Beck may well have made such extravagant claims because, as in his defense of the child-labor tax, he did not believe the law was constitutional. Beck encouraged Massachusetts to challenge the Act, although Massachusetts was accepting federal funds under twenty-two previous grant-in-aid programs.21 The state emphasized that the Act deprived it of its reserved powers, and could subject individual citizens to federal intrusion. “The forced registration of pregnancy, governmental prenatal examination of expectant mothers, restrictions upon the right of a woman to secure the services of a midwife or physician of her own selection, are measures to which the people of those states which accept its provisions may be subjected. . .. Insurance of mothers may be made compulsory. The teaching of birth control and physical inspection of persons about to marry may be required.” Massachusetts argued that the federal taxing and spending power was limited to those objects enumerated in Article I, section 8 of the Constitution. This act threatened to turn the appropriation of federal land for unenumerated ends into a general power to spend for unenumerated purposes. It amounted to “an illegal option either to yield a part of its powers reserved by the Tenth Amendment or to give up its share of appropriations under the act.”22 The Court unanimously dismissed the suits for lack of jurisdiction. They presented, Justice Sutherland wrote, a political rather than a judicial question. The Court had no power to consider “abstract questions of political power, of sovereignty, of government. . .. We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional.” And, although individual taxpayers might sue to enjoin spending by a local government, that was because “the interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. . .. But the relation of a taxpayer of the United States to the federal government is very different. His interest in the moneys of the Treasury – partly realized from taxation and partly from other sources – is shared with millions of others, is comparatively minute and indeterminable.”23 19 20 21 22 23

1927 Budget Message, 5 Dec. 1927, M&PP 9720. Massachusetts v. Mellon, 262 U.S. 447 (1923), 458. Keller, In Defense of Yesterday, 173; Lemons, “The Sheppard-Towner Act,” 783. Massachusetts v. Mellon, 461, 470. Ibid., 485–88.

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The decision was a model of judicial self-restraint. Sutherland did not deny that the purpose of the Act was unconstitutional, but denied judicial remedies when government acted unconstitutionally. The effect was a monumental release of the tax-and-spending power when Congress recovered its pre-war impulse.24 Harvard law professor Charles Warren observed that, a “flood of laws bestowing government alms has deluged our statute books.”25 Political scientist Edward S. Corwin concluded that “The moral seems to be, that so long as Congress had the prudence to lay and collect taxes without specifying the purposes to which the proceeds from any particular tax are to be devoted, it may continue to appropriate the national funds without judicial let or hindrance.”26 Sutherland’s point that an individual taxpayer’s relationship to the federal treasury was “shared with millions of others. . . comparatively remote and indeterminable” opened the door to the proliferation of interest-group programs. Where benefits are concentrated and costs diffused, small interest groups thrive, and Mellon prevented a judicial challenge to them. Madison’s analysis of interest-group politics in Federalist 10 noted that “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” He overlooked the peculiar advantage of small numbers in democratic systems. Other features of the original Constitution – principally sectionalism and the indirect election of senators – had forestalled this development for more than a century, succeeding so well that constitutionalists such as Sutherland let their guard down.27

mcnary–haugenism Coolidge and constitutional conservatives saw interest-group pursuit of class legislation in the formation of the Farm Bloc in Congress, and its campaign for agricultural subsidies in the “McNary–Haugen” movement. The agricultural sector sought relief from post-war distress, which was due in no small part to government-sponsored wartime overproduction. Farmers were just too numerous to limit production and raise prices. Future Agriculture Secretary Henry Wallace told farmers to organize and practice “sagacious sabotage. . . in the same scientific, businesslike way as labor and capital.”28 Some resorted to 24

25

26 27

28

Joel Francis Paschal, Mr. Justice Sutherland: A Man Against the State (New York: Greenwood, 1969 [1951]), 149; Barry Cushman, “The Hughes Court and Constitutional Consultation,” Journal of Supreme Court History 1 (1998), 91. Charles Warren, Congress as Santa Claus, or, National Donations and the General Welfare Clause (Charlottesville: University of Virginia Press, 1932), 140. Edward S. Corwin, Twilight of the Supreme Court (New Haven: Yale University Press, 1934), 176. Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge, MA: Harvard University Press, 1965); John O. McGinnis, “The Original Constitution and Its Decline: A Public Choice Perspective,” Harvard Journal of Law and Public Policy 21 (1997), 201; Michael Greve, The Upside-Down Constitution (Cambridge, MA: Belknap, 2012), 244. James H. Shideler, “‘Flappers and Philosophers,’ and Farmers: Rural-Urban Tensions of the Twenties,” Agricultural History 47 (1973), 296.

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“night-riding” to threaten, assault, or destroy the crops of individual farmers who would not abide by production limits. More successful were Farm Bloc efforts to win exemption from the antitrust laws and favorable income-tax treatment for agricultural co-operatives. The principal farm-aid plan was to establish a Federal Farm Board to purchase certain commodities at prices equivalent to those of the prosperous pre-war period, and to “dump” the surplus in foreign markets. Some of the loss would be offset by an “equalization fee” paid by the farmers. The brainchild of George N. Peek, a plow manufacturer, and General Hugh S. Johnson, became the legislative proposal of Oregon Senator Charles L. McNary and Iowa Representative Gilbert Haugen. They struggled through several sessions before securing its passage in 1927. It is notable that the U.S. Department of Agriculture did not play an active role in the project. Though the department had been established in 1862, it was slow to exhibit bureaucratic expansionism.29 Coolidge vetoed this first McNary–Haugen bill, saying that “it is not framed to aid farmers as a whole, and it is, furthermore, calculated to injure rather than promote the general welfare.” The bill confined its benefits to a limited number of commodities, and thus favored large-scale commercial agriculture over diversified family farms. He denounced the delegation of tremendous price-fixing power to the proposed farm board, which threatened to impose “the tyranny of bureaucratic regulation and control. To expect it to refrain from abusing its powers in the face of great political temptation is to disregard experience and credit human nature with qualities it does not possess.” Coolidge characterized the “equalization fee” as beyond Congress’s power to tax. He called the Act “an employment of the coercive powers of government to the end that certain specific groups of farmers and processors may profit temporarily at the expense of other farmers and of the community at large.” Higher prices would only aggravate the problem of over-production, and many other distressed industries would demand similar relief. Coolidge concluded that he could not expose every defect in the Act “without writing a book. The most decisive one is that it is not constitutional.”30 He vetoed a revised bill the next year, saying that “It embodies a formidable array of perils for agriculture which are all the more menacing because of their being obscured in a maze of ponderously futile bureaucratic paraphernalia.”31 Coolidge focused on the moral and economic defects of the proposal. His Attorney General, John W. Sargent, provided a more extensive constitutional analysis. The bill delegated absolute power to the board to fix prices. While the

29

30 31

Morton Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–33 (Cambridge, MA: Harvard University Press, 1990), 154; John D. Hicks, Republican Ascendancy, 1921–33 (New York: Harper, 1960), 198–200; Gilbert C. Fite, “The McNary-Haugen Episode and the Triple-A,” Journal of Farm Economics 42 (1960), 1084–93. “Veto Message,” 25 Feb. 1927, M&PP 9658–75. “Veto Message,” 23 May 1928, ibid., 9777–87.

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Court had dealt liberally with questions of legislative delegation, this exceeded any precedent. Moreover, price-fixing was not a power of Congress’s, so the bill proposed an unconstitutional delegation of an undelegated power. Though the tariff and immigration acts had the effect of raising prices and wages, those were incidental, whereas price-fixing was clearly the primary goal of the McNaryHaugen bill. The “equalization fee” violated the Fifth Amendment because it transferred property from processors to farmers. It could hardly be called a “tax,” as it was not uniformly laid nor paid into the Treasury. Finally, the bill called for the board to appoint a seven-member advisory committee, but it could only choose from nominees of farm cooperatives and other organizations. Sargent said of this administrative subinfeudation that it gave power to “persons, corporations, and officers in no way connected with or responsible to any department of the government of the United States.”32 McNary–Haugenism showed that organized American farmers had quit fighting the protective tariff and now wanted to join it. They tried to devise a system that would protect the American market for their products. Economist John D. Black argued that McNary–Haugen was better than the existing tariff because, even if it encouraged “a larger production of the right products than is economical – those in which we have demonstrated our comparative advantage” – the tariff “promotes too large a production of the wrong products.”33 Coolidge and the protectionists, on the other hand, claimed that American farmers shared in the benefits of the tariff, since it increased urban wages and thus the demand for food. It appeared easier to defend the tariff than the McNary–Haugen bills against charges of “class legislation.” Still, both candidates handled the issue gingerly in the 1928 election.34

muscle shoals The Muscle Shoals project stood out as the progressives’ most persistent effort to extend wartime innovations into peacetime. The federal government built dams in the Tennessee River Valley to generate the electric power necessary for nitrate production, to reduce the country’s complete dependence on Chilean exports. The war ended before the facilities had produced any nitrates, and their disposal preoccupied Congress for the next decade. Conservatives wanted to privatize the facilities, but Southern agrarians wanted them to continue to manufacture nitrates for cheap fertilizer. Later in the decade they also sought the production of cheap electric power. In both cases they targeted monopolists – the “fertilizer trust” and the “power trust.” The government came close

32

33 34

“Text of Sargent Opinion,” New York Times, 26 Feb. 1927, p. 6; “Attorney General’s Ruling Against the McNary-Haugen Farm Relief Bill,” ibid., 24 May 1928, p. 21. John D. Black, “The McNary-Haugen Movement,” American Economic Review 18 (1928), 418. Fite, “The McNary-Haugen Episode and the Triple-A,” 1088; Fite, “The Agricultural Issue and the Presidential Campaign of 1928,” Mississippi Valley Historical Review 37 (1951), 653–72.

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to selling them to Henry Ford, who envisioned a vast industrialization project for the Valley.35 President Coolidge became exasperated at the Muscle Shoals white elephant. “The problem of Muscle Shoals seems to me to have assumed a place all out of proportion with its real importance. It probably does not represent in market value much more than a first-class battleship, yet it has been discussed in the Congress over a period of years and for months at a time,” he noted. “If anything were needed to demonstrate the almost utter incapacity of the national government to deal directly with an industrial and commercial problem, it has been provided by our experience with this property.”36 Nebraska Senator George Norris became the champion of the effort to have the government produce electric power, generating much propaganda about the sinister influence of the “power trust” in Washington.37 Coolidge pocket-vetoed one of Norris’s bills, but Hoover gave a lengthy veto message when he vetoed a later one. It focused mainly on technical problems, “disregarding for the moment the question of whether the federal government should or can manage a power and fertilizer manufacturing business.” He gave no specific constitutional objections, though he argued that to make temporary, war-related projects permanent “is to break down the initiative and enterprise of the American people; it is destruction of equality of opportunity amongst our people; it is the negation of the ideals upon which our civilization has been based.”38 The failure to resolve the Muscle Shoals issue illustrated the ambivalent attitude toward progressivism in the 1920s.

progressive unease on the court The post-war Supreme Court showed similar tendencies, at times reasserting pre-progressive limits, and at others, continuing progressive policies. When Congress declared war in 1917, it looked as if the two principal means by which the Court had protected individual rights against federal and state power – the Tenth and Fourteenth Amendments – had been whittled away to almost nothing. The commerce and taxing powers had effectively allowed Congress to expand its powers beyond those enumerated in Article I, section 8, to establish a federal police power. The due process limitation on state police power, though rarely invoked, appeared abandoned. Shortly after the war, political scientist Robert Cushman observed that most Americans “have been won over more or less unconsciously to the belief that Congress has, or ought to 35

36 37

38

Norman Wengert, “Antecedents of TVA: The Legislative History of Muscle Shoals,” Agricultural History 26 (1952), 141–47. Ford had his own peculiar antitrust argument. The war, he argued, had been fomented by the banking trust. His demonstration that industrial progress did not depend on financiers would lead to perpetual peace. Third Annual Message, 8 Dec. 1925, M&PP 9530. Preston J. Hubbard, Origins of the T.V.A.: The Muscle Shoals Controversy, 1920–32 (New York: Norton, 1968), 234, 266. Veto Message, 3 Mar. 1931, PPHH I: 521.

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have, authority to pass any salutary law in the interest of the national welfare.”39 Cushman believed that the Court had returned to the Munn principle, that “any business is affected with a public interest as soon as the electorate become sufficiently interested in it to pass a regulatory statute.”40 Federal judge Charles M. Hough agreed. Courts now accepted “all expressions of popular will which do not plainly violate some express or plainly implied constitutional prohibition.” Due process now meant “whatever process seems due to the demands of the time, as understood by the judges of the time being.”41 Felix Frankfurter told Congress that “The Supreme Court has now taken us completely ‘out of the woods’ as to” the due process clause. It was now understood in strictly procedural terms.42 Cushman noted occasional “recrudesences of the old dogmatic legalism” of due process, and worried whether the “new judicial attitude” was permanent. The Court soon showed the limits of the new liberal orientation. Near the end of 1917 it augmented the legal problems of organized labor when it affirmed that employers could obtain injunctions to prevent union organizers from attempting to recruit employees who had signed “yellow-dog” contracts. The yellow-dog contract seemed superfluous under the system of employment at will, which permitted both employer and employee to terminate the contract for any reason whatsoever. Neither party could add a condition to an unconditional contract of employment. One could justify the injunction as a means of protecting individual rights, but its use to enforce yellow-dog contracts was difficult to explain. An analogous case would be that of racially restrictive covenants in real estate sales. As some state courts recognized, the property is not really “sold” if the new owner must comply with such conditions. Such contracts were more like bequests, or akin to a private law of entail. Many state courts began to dismantle the doctrine in the 1920s.43 The Supreme Court decision, Hitchman Coal & Coke Co. v. Mitchell, lent force to the progressive argument that the federal judiciary was biased against organized labor. Justice Brandeis’s dissenting opinion expressed the principles of liberty of contract better than the majority. Brandeis argued that a union could not obtain an injunction to enforce a closed shop any more than an employer

39

40

41

42

43

Robert E. Cushman, “The National Police Power under the Commerce Clause of the Constitution,” Minnesota Law Review 3 (1919), 289. Robert E. Cushman, “The Social and Economic Interpretation of the Fourteenth Amendment,” Michigan Law Review 20 (1922), 757, 762–63. Charles M. Hough, “Due Process of Law – To-Day,” Harvard Law Review 32 (1919), 233. Emphasis added. Joan G. Zimmerman, “The Jurisprudence of Equality: The Women’s Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children’s Hospital, 1905–1923,” Journal of American History 78 (1991), 201. Edwin E. Witte, “‘Yellow Dog’ Contracts,” Wisconsin Law Review 6 (1930), 26; David E. Bernstein, “Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective,” Vanderbilt Law Review 51 (1998), 865. Justices Holmes and McReynolds forbad their clerks to marry. Could anyone imagine a suit to enjoin courtship?

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could to enforce an open shop. Brandeis was the formalist in this case, arguing that the union had only solicited Hitchman’s miners to agree, at some future point, to join the union, but not technically to violate the contract by joining while remaining employed.44 The decision presented a wartime anomaly: At the same time that the National War Labor Board prohibited yellow-dog contracts altogether, the Supreme Court made them enforceable by injunction. The clearest sign of a turnaround came in 1918, when the Court struck down the Child Labor Act. Justice Day distinguished the long line of precedents prohibiting the interstate shipment of obscene literature, lottery tickets, impure food and drugs, narcotics, and women for immoral purposes as acceptable because “They rest upon the character of the particular subjects dealt with,” things that were harmful in themselves. In this case, the things being transported (cotton textiles) were innocuous. Day noted that the Act permitted such goods “to be freely shipped after thirty days from the time of their removal from the factory.” With this distinction, Day concluded that the Act violated the basic constitutional principle that “the powers not expressly delegated to the national government are reserved” to the states.45 Holmes wrote for four dissenters, expressing the view that the Court had allowed the commerce power to become plenary by 1918. Without some sort of specious qualification such as the harmful-per-se one, the Court would have needed to repudiate its long line of cases – from the lotteries to white slavery – to have returned to the view of the four dissenters in the lottery case. But Justice Day, who managed to vote with the majority Adair and to dissent in Coppage, had little regard for consistency.46 Congress swiftly enacted a heavy tax on the profits of manufacturers who used child labor. Solicitor General James Beck defended the Act, though he believed that Congress had exceeded its powers. He told the Court that this tax could only be sustained if Congress’s taxing power was completely unlimited. Yes, he replied, when queried by the Justices, Congress could tax wheat sales in order to limit production; yes, it could tax products made by union labor in order to deter organization.47 The Court struck down the act, with only Justice Clarke dissenting. “A Court must be blind not to see that the so-called tax is imposed to stop the employment of children within the age limits prescribed. Its prohibitory and regulatory effect and purpose are palpable. All 44

45

46

47

Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917), 272. See Justice Pitney’s explanation at 255. Homer F. Carey and Herman Oliphant, “The Present Status of the Hitchman Case,” Columbia Law Review 29 (1929), 444. Hammer v. Dagenhart, 247 U.S. 251 (1918), 270, 272, 275–76. While Day misquoted the Tenth Amendment, bringing back the restrictive adverb of the Articles of Confederation, he did quote accurately the misquotation in his precedent, Lane County v. Oregon, 74 U.S. 71 (1868), 76. Walter Thompson, Federal Centralization: A Study and Criticism of the Expanding Scope of Congressional Legislation (New York: Harcourt, 1923), 136; Stephen B. Wood, Constitutional Politics in the Progressive Era: Child Labor and the Law (Chicago: University of Chicago Press, 1968), 159. Wood, Constitutional Politics, 268–73.

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others can see and understand this,” Chief Justice Taft wrote. “How can we properly shut our minds to it?” But the same was said of the tax on colored oleomargarine that the Court had accepted in 1904. Taft’s claim that “There was not in that case the slightest doubt that the [oleomargarine] tax was a tax, and a tax for revenue” must evoke much doubt.48 The reaction to the child-labor tax decision was not as vociferous as progressives expected.49 Holmes and Brandeis had concurred, and Felix Frankfurter conceded in the New Republic, “We must pay a price for federalism.”50 Oklahoma Senator Robert Owen wanted to re-enact the bill with a provision that automatically removed any judge who declared it unconstitutional, and denied appellate jurisdiction to the Supreme Court. Nobody followed him.51 The last resort of reformers was a constitutional amendment. But this effort suffered from the public reaction to wartime statism. Though manufacturers bankrolled the opposition effort, and often peddled misleading arguments, farmers and ethnic and religious minority groups also saw in the child-labor movement another socialistic attempt to intrude the state into the family. The Roman Catholic Church in the Northeast and Lutherans in the Midwest worked vigorously against it. Only six states ratified the amendment by the end of the decade. A similar coalition defeated progressive efforts to create a federal department of education. The proposal must have also suffered from the continued decline of child labor. The number of employed children fell from 2 million to 1 million in the 1910s, over half of whom worked on their own parents’ land. The numbers declined by half again the 1920s.52 Columbia professor Howard Lee McBain argued that this reaction showed that the Court was closer than Congress to public opinion.53 48

49

50

51

52

53

Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), 38, 42. Taft was aided by the fact that, like Clarke in this case, the three justices dissented without opinion in McCray. Keith E. Whittington, “Congress Before the Lochner Court,” Boston University Law Review 85 (2005), 849. Wood, Constitutional Politics, 291; Felix Frankfurter, “Child Labor and the Court,” New Republic, 26 Jul. 1922, p. 248. Katherine B. Fite and Louis Baruch Rubinstein, “Curbing the Supreme Court: State Experiences and Federal Proposals,” Michigan Law Review 35 (1937), 764–65; Wood, Constitutional Politics, 190; Thomas George Karis, “Congressional Behavior at Constitutional Frontiers” (Ph.D. diss., Columbia University, 1951), 155–58. Children and Youth in America: A Documentary History, ed. Robert H. Bremner, 3 vols. (Cambridge, MA: Harvard University Press, 1971), III: 608; Bill Kauffman, “The Child Labor Amendment of the 1920s,” Journal of Libertarian Studies 10 (1992), 139–69; Richard B. Sherman, “The Rejection of the Child Labor Amendment,” Mid-America 45 (1963), 3–17; Dumenil, “‘The Insatiable Maw of Bureaucracy’”; Donald E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996), 253–61. Howard Lee McBain, The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law (New York: Macmillan, 1927), 161; Sherman, “Rejection of the Child Labor Amendment,” 15; Karis, “Congressional Behavior,” 81; Reorganization of the Federal Judiciary, Hearings before the Committee on the Judiciary, U.S. Senate, 75th Cong., 1st Sess. (Washington: G.P.O., 1937), 27.

16 The Taft Court

personnel and power The Supreme Court under William Howard Taft sometimes curtailed progressivism, but also preserved and extended progressive reforms. The stakes were high for Taft. In the 1920 campaign he had warned that Wilson favored “a latitudinarian construction of the Constitution” that would “weaken the protection it should afford against socialistic raids upon property rights.” Though Wilson’s first Court appointment, James McReynolds, had disappointed progressives, “the other two represent a new school of constitutional construction, which if allowed to prevail will greatly impair our fundamental law.” Taft believed that Wilson had appointed Brandeis and Clarke to undermine the Constitution.1 He considered the Democratic nominee, James Cox, a trimmer who would follow the party line laid down by his predecessor. Taft noted that four justices were more than seventy years old, and that voters faced “no greater domestic issue in this election” than their replacement. Taft had posed judicial selection as the paramount issue in the previous three presidential contests, and had predicted that Wilson would replace four justices in his second term when in fact he chose none. But this time Taft proved prescient. Few men have had Taft’s opportunity to shape the Supreme Court. He appointed five justices as President, and exerted great influence on the five (including himself) selected by Presidents Harding and Coolidge.2 But his choices were remarkably short-lived and mediocre. The ten served an average of eleven years each; Taft’s five appointees lasted only eight years. His successor, Woodrow Wilson, replaced three of them in one term. Taft served barely one 1

2

William H. Taft, “Mr. Wilson and the Campaign,” Yale Review 10 (1920), 19. But he wrote privately, “I feel as if we ought not to have many men on the Court who are as reactionary on the subject of the Court as McReynolds – Walter F. Murphy, “In His Own Image: Mr. Chief Justice Taft and Supreme Court Appointments,” Supreme Court Review (1961), 181; Jonathan Lurie, William Howard Taft: The Travails of a Progressive Conservative (Cambridge: Cambridge University Press, 2012), 179. There is some dispute about how much influence Taft had in Coolidge’s appointment of Stone. Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956), 184.

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year with Mahlon Pitney; only Willis Van Devanter survivied him.3 The longestserving justice, Van Devanter, was probably the poorest choice in terms of efficiency, the professional standard that Taft so often praised in the judicial branch, but compensated for it in collegiality.4 In jurisprudential terms, only Taft himself and George Sutherland have been ranked highly. If Taft underplayed his hand to influence the Court’s personnel, he certainly augmented the power of the Court as an institution. Taft did more than anyone since John Marshall to preserve and extend the judiciary as a coordinate branch of the federal government. At a symbolic level, he was primarily responsible for the construction of the monumental Supreme Court building, completed in 1935 after his death. He took the Court out of the Old Senate Chamber and put it on a plane with the Capitol, the White House, and the many administrative edifices that were turning Washington into a truly imperial city in the 1920s. Taft strengthened the Supreme Court within the federal judicial system, and the Chief Justiceship within the Supreme Court. Though the federal judiciary had been a separate, coordinate branch from its inception, the Supreme Court lacked the power to administer the national judiciary’s affairs. Above all, the Court won the power to control its docket in 1925. Heretofore, the Court had to consider every appeal made to it, and had to dispose of hundreds of mundane private-law matters every term. Under the 1925 Act, it could grant certiorari to consider only important cases. Taft had long argued that the judiciary’s only problems were procedural – concerning efficiency, a prime progressive value. His reforms thus deflected progressive complaints that federal judicial problems were substantive ones of class bias. In retrospect, the brevity of Taft’s personnel appointments and the longevity of his structural reforms reflected perfectly his own devotion to the judiciary as an institution. It also lay the groundwork for progressives and their heirs to employ enhanced judicial power in later decades.5 3

4

5

The average length of service of justices appointed by the other twentieth century presidents (Roosevelt through Ford) was 19 years. Only Harry S. Truman’s average (11.2) was lower than Taft’s. Taft, Hughes, and Brandeis all praised Van Devanter’s collegiality and contributions to the justices’ conferences, while recognizing his dilatory opinion-writing. Henry F. Pringle, The Life and Times of William Howard Taft: A Biography, 2 vols. (New York: Farrar-Rinehart, 1939), I: 971; Brandeis to Felix Frankfurter, 26 May 1937, in “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter, ed. Melvin I. Urofsky and David W. Levy (Norman: University of Oklahoma Press, 1991), 597; Murphy, “In His Own Image,” 166; The Autobiographical Notes of Charles Evans Hughes, ed. David J. Danelski and Joseph S. Tulchin (Cambridge, MA: Harvard University Press, 1973), 171. Justin Crowe, “The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft,” Journal of Politics 69 (2007), 73–87; Robert Post, “The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court,” Minnesota Law Review 85 (2001), 1272; Peter G. Fish, “William Howard Taft and Charles Evans Hughes: Conservative Politicians as Chief Judicial Reformers,” Supreme Court Review (1975), 129; Pringle, Life and Times, 998–1000.

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labor In labor cases, the Taft Court interpreted the Clayton Act in accord with Congress’ unwillingness to exempt unions from antitrust laws and injunctions. As president, Taft had vetoed the Arizona constitution statehood bill because its constitution provided for judicial recall. Shortly after Arizona dropped judicial recall from its proposed constitution and won admission to the Union, the state promptly reinstalled the recall and enacted a law prohibiting injunctions in labor disputes. Now the Chief Justice held that the injunction ban violated the Fourteenth Amendment’s due process and equal protection guarantees. The same year, the Court declared that secondary boycotts were not “lawful,” and therefore not protected by section 6 of the Clayton Act. Neither did section 20, proscribing the issue of injunctions, apply to unlawful activity. The Court also adopted a strict standard when evaluating whether strike activity was “peaceful,” and permitted injunctions against intimidating activity. It also stretched its definition of interstate commerce to make it easier to apply federal antitrust laws to strikes.6 While progressives claimed that these cases betrayed a judicial double standard against organized labor, the Court’s widened interpretation of Congress’s commerce power ultimately provided the basis for an array of union privileges in the New Deal. The judiciary showed a sympathy for progressive “corporate liberalism,” which held that labor unions, if they behaved in a peaceful, lawful, orderly fashion, could be legitimate parties in the political economy, and tried to encourage “responsible unionism.”7 Taft himself recognized the strike as “a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital,” and remarked that “the day of the industrial autocrats is passing and should pass.”8 Congress enacted a new Railway Labor Act in 1926, which guaranteed the right to join a union.9 Many employers (other than interstate railroad operators), though still able to use yellow-dog contracts to thwart unions, often shifted from strident opposition toward more 6

7

8

9

Truax v. Corrigan, 257 U.S. 312 (1921); Duplex Printing Co. v. Deering, 254 U.S. 443 (1921); American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 (1921); Bedford Cut Stone Co. v. Journeymen Stone Cutters Association of North America, 274 U.S. 37 (1927); United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344 (1922); Coronado Coal Co. v. United Mine Workers of America, 268 U.S. 295 (1925). Daniel R. Ernst, Lawyers Against Labor: From Individual Rights to Corporate Liberalism (Urbana: University of Illinois Press, 1995); Sylvester Petro, “Injunctions in Labor Disputes, 1880–1932,” Wake Forest Law Review 14 (1978), 355; Ruth O’Brien, Workers’ Paradox: The Republican Origins of New Deal Labor Policy, 1886–1935 (Chapel Hill: University of North Carolina Press, 1998), 14. American Steel Foundries, 209; Joseph A. McCartin, Labor’s Great War: The Struggle for Industrial Democracy and the Origins of Modern American Labor Relations, 1912–21 (Chapel Hill: University of North Carolina Press, 1997), 186. O’Brien, Workers Paradox, 121. The Act did not impose exclusive majority unionism nor prohibit company unions.

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sophisticated “industrial relations” systems. The most prominent of these was the employee representation plan, or “company union.”10 The courts, employers, and voters retained their progressive-era ambivalence about labor unions throughout the decade, and organized labor reverted to about its pre-war share of the American labor force.11

adkins and the due process revival Like many legal scholars, journalist Robert L. Duffus, later the “sage of the tenth floor” New York Times editor, believed that the war had put the last nail in the coffin of natural rights. Both in Europe and America, he said, constitutional limits had fallen so easily that war necessity alone could not explain it. It was “the natural outgrowth of existing conditions and existing ways of thinking. The old ideas had been growing obnoxious, or beginning to seem imbecilic, to more people than were dreamt of by the lawyers or the judges.” The legal world still relied on “the wisdom of the fathers of 1787. . . long after the masses of the people had grown out of sympathy, even of toleration, with it.”12 In 1918, Congress established a commission to set minimum wages for women in the District of Columbia, where the federal government had the same police power as a state. The Supreme Court struck it down. Justice George Sutherland, who had been a student of Thomas McIntyre Cooley’s, noted that there was “no such thing as absolute freedom of contract. . .. But freedom of contract is, nevertheless, the general rule and restraint the exception.”13 Lochner, Sutherland observed, remained formally unrepudiated; more recent expansions of the police power were temporary and war-related. The Act offended both the principles of due process and equal protection. While the Fifth Amendment contained no equal protection clause, Sutherland followed Cooley’s understanding that due process included equal protection and more.14 Long an advocate of women’s suffrage, he noted “the great – not to say revolutionary – changes which have taken place” in the civil and political status of women, “accorded emancipation from the old doctrine that she must be given special protection.” But the Act’s fundamental flaw was to fix wages regardless 10

11

12 13 14

Historians disagree about whether yellow-dog contracts were rising or falling in the 1920s. The best contemporary source admits that “complete information regarding their present extent is lacking,” but saw them confined to small firms in a few industries – Edwin E. Witte, “‘Yellow Dog’ Contracts,” Wisconsin Law Review 6 (1930), 21. Benjamin J. Taylor and Fred Witney, U.S. Labor Relations Law: Historical Development (Englewood Cliffs, NJ: Prentice-Hall, 1992), 148. R. L. Duffus, “The Twilight of Natural Rights,” New Republic, 2 Mar. 1918, p. 139. Adkins v. Children’s Hospital, 261 U.S. 525 (1923), 546. Rodney L. Mott, Due Process of Law: A Historical and Analytical Treatise of the Principles and Methods Followed by Courts in the Application of the Concept of the “Law of the Land” (New York: Da Capo, 1973 [1926]), 162–64, 262, 277; Barry Cushman, “Some Varieties and Vicissitudes of Lochnerism,” Boston University Law Review 85 (2005), 101–85; V. F. Nourse and Sarah A. Maguire, “The Lost History of Governance and Equal Protection,” Duke Law Journal 58 (2009), 955–1012.

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of the value of the services rendered by the employee. It forced employers to meet the needs determined by this commission and “arbitrarily shifts to his shoulders a burden which, if it belongs to anybody, belongs to society as a whole.” The statute also delegated legislative power to the commission – no standards were established to determine minimum wages.15 Taft dissented, and adopted both the reasoning and style of Oliver Wendell Holmes. He regarded Lochner as having been “overruled sub silentio” by Bunting. Like Holmes, Taft could not see the fundamental difference between an hour and a wage regulation. In his Holmesian phrase, “One is the mulitiplier and the other is the multiplicand.” But the Oregon law in Bunting said nothing about wages. Its requirement of time-and-a-half for overtime work had been accepted as a penalty to enforce the hour limit, but an employer was free to reduce the base rate. The Adamson Act went further by forbidding such adjustment. Holmes shared the Chief Justice’s mathematical block: “The bargain is equally affected whichever half you regulate.”16 Both gave short shrift to the equal-protection claim. “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women,” Holmes quipped.17 Adkins was hardly a simply reactionary decision. What could be more progressive than Sutherland’s adapting of constitutional standards to the evolving status of women in modern life? Nor did it overturn Muller on laissez-faire grounds. The following year (1924), Sutherland upheld a New York law that limited night-work by women.18 Progressive feminists disagreed on the issue of protective legislation. The advocates of equal treatment, led by Alice Paul, had worked with Sutherland on a proposed equal-rights amendment before he joined the Court. Feminists who wanted the law to recognize sex differences, led by Florence Kelley, opposed them. A Court that had never accepted a minimum wage law (despite Taft and Holmes’s confusion), would not let pass a due process or fundamental-rights violation on top of an equal-protection one. Like Lochner, Adkins expressed no economic theory, but a logical argument and a social and political philosophy. Putative exercises of the police power had to be justified; reasons must be given for the state to limit individual liberty.19 Sutherland doubted that minimum wages actually improved the morals of women and contributed to social welfare. Individuals such as Willie Lyons, who lost a convenient job due to the law, had good reasons to doubt the benefits 15 16

17 18

19

Adkins v. Children’s Hospital, 553, 557–58, 555. Ibid., 564, 569. See Appendix A. There was also an equal-protection issue here. Lochner involved a particular class (bakers), whereas Bunting involved all “mill, factory, and manufacturing” employees. Ibid., 570. Judith A. Baer, The Chains of Protection: The Judicial Response to Women’s Labor Legislation (Westport, CT: Greenwood, 1978), 95; Radice v. New York, 264 U.S. 292 (1924). John G. Zimmerman, “The Jurisprudence of Equality: The Women’s Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children’s Hospital, 1905–23,” Journal of American History 78 (1991), 188–225; Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994), 72.

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of such legislation. As Felix Frankfurter, who defended the law in Adkins, put it, those who lost their jobs must “accept the status of a defective and be segregated for special treatment as dependents” of the state.20 Popular and legal journals roundly condemned Adkins. But the decision hardly derailed the minimum-wage movement, which had already lost steam by the end of World War One.21 Arizona and Arkansas laws were held unconstitutional; Wisconsin revised its law to meet the Adkins test, but it was not reviewed. Some reformers promoted minimum-wage laws for both men and women as a way to meet equal-protection constitutional objections; others tried to contrive a “fair wage” rather than a minimum wage. Many states continued to enforce their acts.22 Washington Governor Lewis F. Hart said that he “‘didn’t give a damn’ what the Supreme Court thought. . . if Sutherland and his cronies tried to attack it, Hart would be ready ‘to hang the Supreme Court.’” Since labor-market wages usually exceeded the legal minimum during the 1920s, the laws mattered little.23 The child labor and minimum-wage decisions revived two fundamental constitutional limitations. First, the Constitution limited Congress to enumerated powers; it could not use the commerce and taxing powers as pretexts to exercise powers reserved to the states. Second, the Fifth and Fourteenth Amendment limited the police power, imposing some limits on both governments. But the Court still left a great deal of latitude for government action. Throughout the 1920s it wavered, manifesting a legal ambivalence about progressive reform that characterized the public’s. In the Wolff Packing case in 1923 it unanimously overturned a Kansas Industrial Relations Act that imposed compulsory arbitration in labor disputes in the food, clothing, and fuel industries. Merely declaring these industries “affected with a public interest” did not make them so, Taft held. Though it was usually seen as a conservative decision, organized labor welcomed it. Samuel Gompers had denounced the Kansas statute, which prohibited strikes, as establishing involuntary servitude.24

20

21 22

23

24

Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (Westport, CT: Greenwood, 2001), 146; Thomas C. Leonard, “Origins of the Myth of Social Darwinism: The Ambiguous Legacy of Richard Hofstadter’s Social Darwinism in American Thought,” Journal of Economic Behavior and Organization 71 (2009), 47. Lieberman, “Their Sisters’ Keepers,” 392. Full citation in note 22. Jacob A. Lieberman, “Their Sisters’ Keepers: The Women’s Hours and Wages Movement in the United States, 1890–1925” (Ph.D. diss., Columbia University, 1951), 417–23, 392; John R. Commons et al., History of Labor in the United States, 4 vols. (New York: A. M. Kelly, 1966 [1918–35]), III: 690; Vivien Hart, Bound by Our Constitution: Women, Workers, and the Minimum Wage (Princeton: Princeton University Press, 1994), 134; Selected Articles on Minimum Wages and Maximum Hours, ed. Egbert Ray Nichols and Joseph H. Baccus (New York: H. W. Wilson, 1936), 287–311. Hart describes Adkins as having left the minimum-wage movement “in limbo.” Joseph F. Tripp, “Toward an Efficient and Moral Society: Washington State Minimum-Wage Law, 1913–25,” Pacific Northwest Quarterly 67 (1976), 97–112; Louis F. Hart, “A New Dred Scott Case?” Survey, 15 May 1923, p. 218. Wolff Packing Co. v. Kansas Court of Industrial Relations, 262 U.S. 522 (1923); Morton Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–33 (Cambridge, MA: Harvard University Press, 1990), 141.

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takings In 1922, the Court struck down a Pennsylvania law that limited coal companies’ mineral rights under surface lands owned by others. The decision, written by Justice Holmes, was not really a regulatory takings decision at all. Rather, it demonstrated that even a professed positivist such as Holmes could not avoid a jurisprudence of natural rights (only Brandeis dissented in the case). The legalities of the case could hardly have been clearer. When the coal company sold the land to Mahon, it explicitly reserved the right to mine the coal under the surface regardless of the impact of subsidence. The Pennsylvania legislature then prohibited such agreements, while also establishing a fund into which coal companies could pay to retain their mining rights. Holmes rejected this as a valid exercise of the police power. “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”25 Mahon displayed Holmes’s idiosyncratic and intuitive style. He recognized “a certain extent” and “too far” in this case as he did the “clear and present danger” slogan in free-speech cases, but dissented vehemently when his brethren similarly held that “due process” must limit the police power somewhere. Mahon thus aligned with Lochner. Here Holmes noted that “in general it is not plain that a man’s misfortunes or necessities will justify his shifting the damages to his neighbor’s shoulders.”26 A younger Holmes had written in 1873, “It is no sufficient condemnation of legislation that it favors one class at the expense of another, for much or all legislation does that. . .. Legislation is necessarily a means by which a body, having the power, puts burdens which are disagreeable to them on the shoulders of somebody else.”27 Progressive historians ignored Mahon because it did not fit their mythical image of a progressive Holmes, and conservatives later turned it into a fictitious “regulatory takings” source.28 Holmes’s decision also expressed a distinctly progressive, utilitarian view of property rights as a social good rather than as an individual natural right. While the coal company prevailed in this case, Holmes’s standard left open many regulations that imposed large costs if they did not produce a “total wipeout.”29

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Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), 415; Lawrence M. Friedman, “A Search for Seizure: Pennsylvania Coal Co. v. Mahon in Context,” Law and History Review 4 (1986), 21. Pennsylvania Coal Co. v. Mahon, 416. “Summary of Events,” American Law Review 7 (1873), 584. Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987), 508; Robert Brauneis, “‘The Foundation of Our “Regulatory Takings” Jurisprudence,’: The Myth and Meaning of Justice Holmes’ Opinion in Pennsylvania Coal Co. v. Mahon,” Yale Law Journal 106 (1996), 613–702; Melvin I. Urofsky, Louis D. Brandeis: A Life (New York: Pantheon, 2009), 600. See also the symposium on Mahon in the Georgetown Law Journal 86 (1998), 813–905. Eric R. Claeys, “Euclid Lives? The Uneasy Legacy of Progressivism in Zoning,” Fordham Law Review 73 (2004), 751; Morris R. Cohen, “Property and Sovereignty,” Cornell Law Quarterly 13 (1927–28), 27; Richard Epstein, “Pennsylvania Coal v. Mahon: The Erratic Takings Jurisprudence of Justice Holmes,” Georgetown Law Journal 86 (1998), 894.

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If liberal justices made apparently conservative decisions in the 1920s, apparently conservative judges made progressive ones more often. Euclid v. Ambler Realty, which gave constitutional sanction to zoning, stands out. A “quintessentially progressive concept,” zoning exemplified the movement’s faith in expertise and state power, which could improve the genetic stock of the population. The first zoning ordinances in San Francisco and New York sought to manage the unruly new immigrant population.30 Progressive economists such as Richard Ely characterized these immigrants as “beaten men from beaten races, representing the worst failures in the struggle for existence.” Planners promoted zoning as a “means for preventing race deterioration.” If not twins, racial segregation and zoning were no distant relatives.31 The new profession of “urban planning” aimed to impose order on America’s burgeoning urban growth. Zoners benefited from the progressive campaign for municipal “home rule.” Whereas earlier suburbs had desired to be annexed to their core cities, by 1900, most used zoning to keep urban populations out. Like legal realism and many other progressive causes, it drew deeply from German sources, though the two world wars led liberals to efface these origins.32 Frederic Howe boasted that German cities were as “sovereign over the property within its limits as it is over the people.” Zoning reflected the progressives’ conviction that common law doctrines such as nuisance and trespass could not deal with modern urban problems. The planners admitted that the outdated Constitution stood in their way. American judges need to “get over this bogey of the Constitution,” Andrew Wright Crawford argued.33 Reflecting Woodrow Wilson’s vision of an administrative state above politics, zoning would be the work of technical experts, insulated from democratic majorities. New York enacted the first comprehensive zoning law in 1916. Luxury hotels and exclusive retailers had displaced residential mansions on Fifth Avenue, and these now organized to keep garment manufacturers from doing the same to them. “You are like cattle in a pasture,” one zoning advocate told the retailers, “and the needle trade workers are the flies that follow you from one pasturage to another, nagging you into abandoning one great center after another.” Aware of the vulnerability of their novel plans to constitutional challenge, zoning advocates tried to get as many American cities to adopt zoning as quickly as possible.

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Michael Allan Wolf, The Zoning of America: Euclid v. Ambler (Lawrence: University Press of Kansas, 2008), 4, 30; David M. P. Freund, Colored Property: State Policy and White Racial Politics in Suburban America (Chicago: University of Chicago Press, 2007), 46; Seymour I. Toll, Zoned American (New York: Grossman, 1969), 29. Freund, Colored Property, 58–59; W. L. Pollard, “Outline of the Law of Zoning in the United States,” Annals of the American Academy of Political and Social Science 155 (1931), 17. Pollard, “Outline of the Law of Zoning,” 46; Toll, Zoned American,124; James E. Herget and Stephen Wallace, “The German Free Law Movement as the Source of American Legal Realism,” Virginia Law Review 73 (1987), 399–455. The prominent legal realist Karl Llewellyn volunteered and served in the German Army when the First World War broke out, and was awarded the Iron Cross. Claeys, “Euclid Lives?” 748, 755; Wolf, The Zoning of America, 17.

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The Department of Commerce aided them. Secretary Herbert Hoover ardently supported zoning, and the department’s Standard State Zoning Enabling Act publication sold more than 55,000 copies.34 The village of Euclid, on the outskirts of Cleveland, joined the campaign. The Ambler Realty Company claimed that the zoning plan substantially reduced the value of its land by prohibiting its industrial development, and sued to enjoin the ordinance. Federal district judge, David Westenhaver, did so, though declaring that “This case is obviously destined to go higher.” Viewing the case as one of fundamental rights versus the police power, he applied the recent decisions in Wolff Packing, Adkins, and especially Mahon. As if responding to Frederic Howe, Westenhaver observed that the zoning restrictions “recognize no distinction between police power and sovereign power.” If zoning was a valid exercise of the police power, then “all private property is now held subject to temporary and passing phases of public opinion, dominant for a day, in legislative or municipal assemblies.”35 This conservative decision used the kind of factual analysis that progressives repeatedly called for, particularly in zoning.36 Westenhaver saw through the apparently neutral land-use restrictions to class and ethnocultural bias that later decades would more fully document.37 “It is equally apparent that the next step in the exercise of this police power would be to apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congesting of population, whenever the colored or certain foreign races invade a residential sector, are so well known as to be within the judicial cognizance.”38 Westenhaver noted that the Supreme Court had struck down explicit racial segregation in 1917, and recognized that land-use zoning could act as an equivalent.39 “The courts never hesitate to look through the false pretenses to the substance,” he concluded, and “the plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket.” It

34 35 36

37 38 39

Toll, Zoned American, 110, 159, 176, 194–200. Ambler Realty Co. v. Euclid, 297 F. 307 (1924), 308, 314. Alfred Bettman, “Constitutionality of Zoning,” Harvard Law Review 37 (1924), 856. Woodrow Wilson had appointed Westenhaver to the seat vacated when John Hessin Clarke went to the Supreme Court in 1916. Wilson recommended him as “the real progressive” among three candidates being considered. He was conservative in his economic views, but shared the antiimmigrant and eugenic views of such progressives as Richard T. Ely. Wilson to Atlee Pomerene, 29 Jan. 1917, PWW XLI: 55; William M. Randle, “Professors, Reformers, Bureaucrats and Cronies: The Players in Euclid v. Ambler,” in Zoning and the American Dream: Promises Still to Keep, ed. Charles M. Haar and Jerold S. Kayden (Chicago: American Planning Association, 1989), 40–41. Toll, Zoned American, 242. Ambler Realty Co. v. Euclid, 313. Christopher Silver, “The Racial Origins of Zoning: Southern Cities from 1910–40,” Planning Perspectives 6 (1991), 189–205; Toll, Zoned American, 263; “Racial Zoning Again,” American City (Nov. 1950), 137.

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intended to “regulate the mode of living” and “classify the population and segregate them according to their income or situation in life.”40 The Supreme Court upheld the Euclid zoning ordinance. George Sutherland, reputedly one of the more conservative justices, liked the appeal of Euclid’s lawyers, which cast the ordinance in a common-law light, akin to the traditional doctrine of nuisance.41 Sutherland asserted that the meaning of the Constitution was fixed, but the application of its principles could vary. He deferred to the findings of the “commissions and experts,” who concluded that in low-density areas such as Euclid, “apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.”42 Progressives scoffed that “modern American theories of natural law. . . are essentially theories of ‘the self-interest of the socially and economically dominant class,’” in the service of “conservative, aristocratic, and authoritarian” interests.43 But the due process revival of the 1920s produced some of the most creative jurisprudence in American history. Apparently dead before the war, the due process clause in the six years since 1920 had killed more acts than it had in the previous half century.44 But nobody asked if these numbers reflected the continuation and extension of progressive regulation in the states in the 1920s. If state spending is any indication, progressivism continued to make great strides in the decade. State spending rose from $6 billion to $11 billion between 1922 and 1932; as a percentage of GNP, it doubled, from 7 percent to 14 percent.45 But the Court offered no clear rationale for its decisions, many of which the more progressive members of the Court joined.46 Brandeis was the lone dissenter in Mahon; Holmes was the lone dissenter in a decision that overturned a Tennessee statute that fixed gasoline prices.47 They both dissented when the Court struck down an act that set a maximum weight for bread.48 They were joined by Harlan Fiske Stone when the Court struck down a law that virtually outlawed private employment 40 41 42 43

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Ambler Realty Co. v. Euclid, 314, 316. Claeys, “Euclid Lives?” 763. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), 387, 395. Charles Grove Haines, The Revival of Natural Law Concepts (New York: Russell & Russell, 1965 [1930]), 219, 231; William E. Nelson, The Roots of American Bureaucracy, 1830–1900 (Cambridge, MA: Harvard University Press, 1982), 150. Haines was quoting Roscoe Pound, “The Theory of Judicial Decision,” Harvard Law Review 36 (1923), 824, to quite a different effect. Ray A. Brown, “Due Process of Law, Police Power, and the Supreme Court,” Harvard Law Review 40 (1927), 944. Budgets and Bureaucrats: The Sources of Government Growth, ed. Thomas E. Borcherding (Durham, NC: Duke University Press, 1977), 26–28. Robert C. Post, “Defending the Lifeworld: Substantive Due Process in the Taft Court Era,” Boston University Law Review 78 (1998), 1489–1545. Williams v. Standard Oil Co., 278 U.S. 235 (1929). Jay Burns Baking Co. v. Burns, 246 U.S. 504 (1924); Post, “Defending the Lifeworld,” 1502. This act derived, notably, from wartime efforts of the Food Administration to ensure “efficient mobilization of nutritional resources.”

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agencies.49 Taft’s mainstay, Edward Sanford, became a fourth dissenter when the Court struck down a New York law that fixed the price of theater ticket resales.50

civil liberties The due process revival also extended to rights that progressives tended to call “personal” or “human” rights as opposed to “economic” or “property” rights. The Court itself never adopted this distinction, and earlier decisions and especially dissents had paved the way for such decisions.51 The progressive era, with its great expansion of government power, provided more opportunities for the Court to defend civil liberties for, as Justice Brandeis pointed out, “In every extension of governmental powers lurks a new danger to civil liberties.”52 In 1925, the Court declared that “freedom of speech and of the press. . . are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment.”53 This case is usually identified as the beginning of the application or “incorporation” of the Bill of Rights to the states, though the Court had already decided that the just-compensation principle of the Fifth Amendment limited the states via the Fourteenth Amendment in 1897, and implicitly in 1890.54 Harvard law professor Charles Warren worried “whether there is not danger now that the ‘liberty’ of the states is being unduly sacrificed to this new conception of the ‘liberty’ of the individual.” But there was nothing new in this – what Warren called “the ‘liberty’ of the states” was the familiar police power. And despite Warren’s fears that the entire Bill of Rights must inevitably come to be applied to the states, nothing in Gitlow suggested other than what the Court had been saying since the late nineteenth century, that there was bound to be some similarity between the terms of the Fourteenth Amendment and those of the Bill of Rights.55 What scholars later christened “incorporation” was really just another name for what scholars would later call “substantive due process.” The Court took a firmer position with regard to laws aimed at ethnocultural or religious minorities, frequently targeted by progressive reformers. The 49 50 51

52 53 54

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Ribnik v. McBride, 277 U.S. 350 (1928). Tyson and Brother v. Banton, 273 U.S. 418 (1927). John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 (Westport, CT: Greenwood, 1978), 425; B. Frank Dake, “Absence of Basic Knowledge Is Found in Senate Debates,” New York Times, 2 Mar. 1930, p. 59. U.S. v. Burleson, 255 U.S. 407 (1921), 436 – dissenting in a case that upheld wartime postal censorship. Gitlow v. New York, 268 U.S. 652 (1925), 666. Ibid., 672. Holmes and Brandeis believed that Gitlow’s conviction should have been overturned, since his advocacy did not present a “clear and present danger.” Charles Warren, “The New ‘Liberty’ Under the Fourteenth Amendment,” Harvard Law Review 39 (1926), 433, 460. Warren warned of what would come to be called “total” incorporation. The Court had pursued, and would continue to pursue, a course of “selective” incorporation. See chapter 5, section 4.

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reformers were joined by bigoted nativists, who were not recognizably progressive except in their zeal for state power. As wartime anti-German sentiment continued into the 1920s, several states outlawed teaching in or of languages other than English. In 1923, the Supreme Court overturned Nebraska’s 1919 English-only statute.56 Justice McReynolds repeated the old doctrine that liberty under the Fourteenth Amendment “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”57 This language affirmed that due process protections were in no way limited to “economic rights,” though the right of Meyer, a German teacher, to pursue his calling was at issue.58 McReynolds’s language echoed that of the earliest civil rights case, Corfield v. Coryell, a century earlier, and his use of the term “privileges” suggested that the privileges-and-immunities clause was not altogether defunct.59 The state could “go very far, indeed, in order to improve the quality of its citizens” McReynolds acknowledged, “but the individual has certain fundamental rights which must be respected.” The courts must scrutinize whether state exercises of the police power were genuine or pretexts.60 Justices Holmes and Sutherland dissented, believing that the law presented “a question upon which men reasonably might differ.”61 The Court also unanimously struck down an Oregon law, enacted by popular initiative, that required all children to attend public schools. The Ku Klux Klan promoted the law, hoping to eliminate Roman Catholic and German Lutheran schools, as well as elite Protestant academies. Oregon was among the most progressive and most Klan-dominated states. The Klan shared the progressive vision of the public school “as a true ‘common school’ by achieving a racial, ethnic, and economic cross section in each classroom.”62 A Catholic school and a private academy pleaded that the Act would destroy valuable economic property, but McReynolds again stressed the broader rights at issue. Oregon “unreasonably interferes with the liberty of parents and guardians to direct the

56

57 58 59 60

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Meyer v. Nebraska, 262 U.S. 390 (1923), 399; David B. Tyack, “The Perils of Pluralism: The Background of the Pierce Case,” American Historical Review 74 (1968), 74–98; William G. Ross, Forging New Freedoms: Nativism, Education, and the Constitution (Lincoln: University of Nebraska Press, 1994). Notably, the Nebraska law, enacted five months after the armistice, declared, “whereas, an emergency exists, this act shall be in force from and after its enactment.” Meyer v. Nebraska, 399. Warren, “The New ‘Liberty’ Under the Fourteenth Amendment,” 454. 6 F. 456 (1823). Meyer v. Nebraska, 401. Nebraska made the patently absurd clam that the Act meant “to protect the child’s health by limiting his mental activities,” though the Act permitted the study of classical, but not modern, languages. In the companion case, Bartels v. Iowa, 262 U.S. 404 (1923), 412. Tyack, “The Perils of Pluralism,” 80; Ross, Forging New Freedoms, 150.

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upbringing and education of children under their control. . .. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”63 In a parallel case, the Court unanimously struck down a prohibition of foreignlanguage schools in the territory of Hawaii, aimed principally at Japanese immigrants. The Court also began to hold Southern states to a stricter standard in criminal prosecutions that amounted to little more than lynching. Finally, in 1931, the Court for the first time overturned state laws as violating the “freedom of expression” – a California law that prohibited the display of the red flag of anarchy, and a Minnesota press-censorship law.64 Still, the Court remained largely deferential to progressive social policy in the 1920s.65 It accommodated the eugenics campaign, which, like zoning, reflected progressive scientism and statism. Before the war, the desire to prevent the propagation of the “unfit” had led many states to enact laws requiring the sterilization of various categories of “defectives.” Indiana enacted the first of these in 1907; Woodrow Wilson singed New Jersey’s law requiring compulsory sterilization for “the feeble-minded (including idiots, imbeciles and morons), epileptics, criminals and other defectives” in 1911.66 The New Jersey Supreme Court, like those in many other states, declared the Act unconstitutional in 1913 because it applied only to inmates in public institutions, and thus denied the equal protection of the laws.67 In 1927, the U.S. Supreme Court reviewed Virginia’s compulsory sterilization law. A young woman facing a salpingectomy was Carrie Buck, whom Virginia described as “a feeble-minded white woman, the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child.” Subsequent research has shown that none of the Bucks was truly “feeble-minded,” but an “expert” reviewed 63 64

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Pierce v. Society of Sisters, 268 U.S. 510 (1925), 534–35. Farrington v. Tokushige, 273 U.S. 284 (1927); Kenneth B. O’Brien, Jr., “Education, Americanization and the Supreme Court: The 1920s,” American Quarterly 13 (1961), 170; Moore v. Dempsey, 261 U.S. 86 (1923); Stromberg v. California, 283 U.S. 359 (1931); Near v. Minnesota, 283 U.S. 697 (1931). The Court had earlier overturned a conviction under a Kansas criminal syndicalism law due to lack of any evidence of unlawful activity – Fiske v. Kansas, 274 U.S. 380 (1927). Rodney L. Mott, Due Process of Law: A Historical and Analytical Treatise of the Principles and Methods Followed by Courts in the Application of the Concept of the “Law of the Land” (New York: Da Capo, 1973 [1926]), 562, 575, 602. Wilson asked Edwin Katzen-Ellenbogen, the scientific director of the State Village for Epileptics, to draft the law. Katzen-Ellenbogen later carried on eugenic experiments at Buchenwald and was convicted of war crimes. Edwin Black, The War Against the Weak: Eugenics and America’s Campaign to Create a Master Race (New York: Four Walls Eight Windows, 2003), 322. Harry H. Laughlin, Eugenical Sterilization in the United States (Chicago: Psychopathic Laboratory of the Municipal Court, 1922), 1–10; Smith v. Board of Examiners, 85 N.J.L. 46 (1913).

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her file from the institution and cavalierly classified the family as “the shiftless, ignorant, and worthless class of anti-social whites of the South,” and Carrie as “a typical picture of the low-grade moron.” Buck’s counsel practically conspired with state authorities to uphold the law.68 Justice Holmes, a zealous eugenicist, wrote the opinion upholding the Act. The thrice-wounded Civil War veteran wrote, “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Famous for his pithy aphorisms, Holmes concluded that “Three generations of imbeciles are enough.” At present, compulsory sterilization applied only to inmates in state institutions, but he looked forward to the day when all the feeble-minded could be sterilized – when we could eliminate everyone, as Holmes put it, “below standard.”69 As harsh as this opinion sounds, Holmes’s original draft was even more fierce; Chief Justice Taft and his colleagues prevailed on Holmes to tone it down. Only Justice Pierce Butler dissented, probably on religious grounds. The world wars effaced the Germanic origins, but not the policy, of zoning. American progressives exported eugenics to Germany. Hitler’s application of it discredited the entire eugenics campaign, though not before some 60,000 Americans underwent compulsory sterilization.70 The Department of Justice also vigorously enforced the Mann White-Slave Act in the 1920s, particularly in cases that involved neither commerce nor coercion. The Justice Department undertook more than 50,000 investigations from 1922 to 1937, receiving more than 10,000 complaints in 1921 alone. The government secured nearly 5,000 convictions in the 1920s. Like the income-tax laws, the Mann Act was often used by the federal government against highprofile criminals who could not be convicted of other crimes. The government convicted Klan leader Edward Y. Clarke in 1923, and tried but failed to convict one of Al Capone’s henchmen (“Machine-Gun Jack” Gebardi) under the Mann 68

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Paul A. Lombardo, “Three Generations, No Imbeciles: New Light on Buck v. Bell,” New York University Law Review 60 (1985), 30–62. Buck v. Bell, 247 U.S. 200 (1927), 207; Yosal Rogat, “Mr. Justice Holmes: A Dissenting Opinion,” Stanford Law Review 15 (1962), 282–86; Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 11. Saul Touster, “Holmes a Hundred Years Ago: The Common Law and Legal Theory,” Hofstra Law Review 10 (1982), 678; Joseph Percival Pollard, “Four New Dissenters,” New Republic, 2 Sep. 1931, p. 62; “Phillip Thompson, “Silent Protest: A Catholic Justice Dissents in Buck v. Bell,” Catholic Lawyer 43 (2004), 125–48; David J. Danelsky, A Supreme Court Justice is Appointed (New York: Random House, 1964), 189; Black, War against the Weak, xvi-xviii, 7, 270; John G. West, “Darwin’s Public Policy: Nineteenth Century Science and the Rise of the American Welfare State,” in The Progressive Revolution in Politics and Political Science, ed. John Marini and Ken Masugi (Lanham, MD: Rowman & Littlefield, 2005), 261–66.

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Act. Near the end of the 1920s “morals crusade,” two white girls who accused nine black boys of rape in the famous Scottsboro cases may have fabricated their story to avoid a Mann Act prosecution. Before the Justice Department took over enforcement of prohibition from the Treasury Department, bureau head J. Edgar Hoover used dramatic Mann Act raids to add to the luster of his office.71

prohibition The Mann Act morals crusade paled in comparison to prohibition, the greatest social reform campaign in American history. It is no injustice to hold the progressives responsible for prohibition, though many non-progressives joined them. Though legislative apportionment gave dry areas more clout, the Eighteenth Amendment did win ratification by the requisite constitutional supermajorities, and the very strict Volstead Act won majorities in a Republican Congress.72 Prohibition represented a forceful extension of progressive reform into the 1920s, strengthening the secular state to take over the welfare functions of private and religious associations.73 Drys principally targeted the culture of the immigrant saloon.74 Prohibition also involved enormous economic interests. Alcoholic beverage production was the fifth-largest American industry, which made prohibition the largest uncompensated taking of property since the abolition of slavery.75 Progressives such as Herbert Hoover hailed prohibition as evidence that Americans were not in materialistic thrall to property rights. “The crushing of the liquor trade without a cent of compensation, with scarcely even a discussion of it,” Hoover wrote, “does not bear out the notion that we gave property rights any headway over human rights.”76 71

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David J. Langum, Crossing Over the Line: Legislating Morality and the Mann Act (Chicago: University of Chicago Press, 1994), 140–48, 176; Dan T. Carter, Scottsboro: A Tragedy of the American South (Baton Rouge: Louisiana State University Press, 1969), 209. Richard Hoftstadter, The Age of Reform: From Bryan to F.D.R. (New York: Vintage, 1955), 289; James H. Timberlake, Prohibition and the Progressive Movement, 1900–20 (Cambridge,MA:Harvard University Press, 1963); David E. Kyvig, Explicit and Authentic Acts: Amending the United States Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996), 224–25; Kyvig, “Sober Thoughts: Myths and Realities of National Prohibition After Fifty Years,” in Law, Alcohol, and Order: Perspectives on National Prohibition, ed. Kyvig (Westport, CT: Greenwood, 1985), 11. Paul A. Carter, “Prohibition and Democracy: The Noble Experiment Reassessed,” Wisconsin Magazine of History 56 (1973), 201. Paul A. Carter, “Prohibition and Democracy: The Noble Experiment Reassessed,” Wisconsin Magazine of History 56 (1973), 201; J. C. Burnham, “New Perspectives on the Prohibition ‘Experiment’ of the 1920s,” Journal of Social History 2 (1968), 54. Walter Thompson, Federal Centralization: A Study and Criticism of the Expanding Scope of Congressional Legislation (New York: Harcourt, 1923),182, identifies beer brewing alone as the sixth largest industry in the nation in terms of capital invested. Herbert Hoover, American Individualism and The Challenge to Liberty (West Branch, IA: Herbert Hoover Presidential Library Association, 1989 [1922]), 47; Joan Hoff-Wilson, Herbert Hoover: Forgotten Progressive (Boston: Little, Brown, 1975), 87, 160; Paul A. Carter, Another Part of the Twenties (New York: Columbia University Press, 1977), 102; Morris R. Cohen, “Property and Sovereignty,” Cornell Law Quarterly 13 (1927–28), 26.

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After an initial period of relative success, prohibition enforcement began to unravel in mid-decade. Neither the Eighteenth Amendment nor the Volstead Act, which defined “intoxicating liquors. . . for beverage purposes,” outlawed possession or consumption, and the act permitted enough exceptions (home manufacture of wine and cider, malt syrup to ferment beer, medicinal alcohol) for determined drinkers. Some denounced the Volstead Act as “class legislation,” permitting the wealthy to enjoy the alcohol they had stocked before 1920, while poorer citizens could not procure a daily or weekly supply. None of the principal enforcers (Presidents Coolidge and Hoover and Treasury Secretary Andrew Mellon) was enthusiastic, and Congress provided inadequate funding – in part because prohibitionists feared that the costs of enforcement would undermine popular support for it. Prohibition agents often proved corrupt and incompetent, but prohibition leaders did not want these agents to be covered by the civil-service system, believing that zeal for the dry cause was more important than competence. Prohibitionists also contributed to one of the most overlooked constitutional anomalies in American history, the failure of Congress to reapportion seats in the House of Representatives after the 1920 census. Fearful that enhanced urban voting strength would endanger the Volstead and immigration acts, drys prevented any alteration in representation until after the 1930 census.77 The Eighteenth Amendment fractured the Supreme Court. Holmes and Brandeis, despite their reputation as civil libertarians, gave wide latitude to prosecutors, usually joined by Chief Justice Taft and the conservatives Van Devanter and Sanford. “Laissez-faire” conservatives Sutherland, Butler, and McReynolds were suspicious of government power and hindered enforcement.78 Taft had been no friend to prohibition. The President who vetoed the Webb–Kenyon Act was derided as “the huge, beer-swilling Taft” by the AntiSaloon League.79 But Taft’s veneration for the law led him to favor vigorous enforcement. He particularly worried that the wealthy class’s disregard for the Volstead Act would set a bad example and undermine the rule of law. Prohibition sparked a new wave of Bill of Rights jurisprudence. The Court upheld dual federal and state prosecutions over double-jeopardy claims, approved of warrantless auto searches over unreasonable search-and-seizure 77

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Burnham, “New Perspectives,” 55–58; Charles W. Eagles, Democracy Delayed: Congressional Reapportionment and Urban-Rural Conflict in the 1920s (Athens: University of Georgia Press, 1990), 118; Daniel Okrent, Last Call: The Rise and Fall of Prohibition (New York: Scribner, 2000), 239. Robert Post, “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era,” William and Mary Law Review 48 (2006); Melvin I. Urofsky, Louis D. Brandeis: A Life, 625; Barry J. Cushman, “The Secret Lives of the Four Horsemen,” Virginia Law Review 83 (1997), 571. Okrent, Last Call, 282; John P. Frank, “The Appointment of Supreme Court Justices: III,” Wisconsin Law Review (1941), 466. No biographer has attributed his undeniable hugeness to beer-swilling.

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defenses, and sustained requirements to file tax returns for illegal income over self-incrimination cavils.80 The issue of prohibition also fractured the political parties in the late 1920s. Old Guard Republicans were critical of prohibition on constitutional grounds, and also wanted federal liquor taxes to reduce or eliminate the income tax. President Hoover, on the other hand, lauded prohibition as an “experiment, noble in purpose.” The Democrats divided into a rural, Southern and Western dry camp and an urban, Northeastern wet one, splitting their 1928 presidential ticket between them and chiding the Republicans for failing to enforce prohibition. Drys mistook the colossal 1928 defeat of wet Al Smith for a mandate for vigorous enforcement, and got Congress to enact the Jones Act, with draconian penalties for Volstead Act violations.81 It took the economic collapse of 1929 to break the national impasse on prohibition.

the progressive attack Progressives continued to snipe at the courts. Senator George Norris of Nebraska, chairman of the Senate Judiciary Committee, introduced a bill in 1922 to abolish all federal courts except the constitutionally mandated Supreme Court. Robert La Follette made judicial reform a major theme in his third-party presidential campaign of 1924. He called for a constitutional amendment to permit Congress to re-enact any law declared unconstitutional by a two-thirds majority, and the 1924 Progressive Party platform endorsed a constitutional amendment to allow Congress to override judicial review. Idaho Progressive William E. Borah proposed that a Supreme Court supermajority of seven out of nine votes be required to declare an Act of Congress unconstitutional.82 The proposals alarmed conservatives and court defenders. Charles Evans Hughes, now Secretary of State, denounced La Follette’s “attempt to destroy our system of government by its assault upon the jurisdiction of the Supreme Court in the interpretation of the Constitution.” Little came of these proposals, though. La Follette never introduced an amendment resolution in Congress. Borah did not push for his own proposal, and ended up endorsing Coolidge in 1924 and denouncing La Follette’s 80

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Post, “Federalism, Positive Law,” 94, 117–37; Pringle, Life and Times of William Howard Taft, 861, 983–87; Burnham, “New Perspectives,” 66; Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: W. W. Norton, 1991), 464. Morton Keller, In Defense of Yesterday: James M. Beck and the Politics of Conservatism, 1861– 1936 (New York: Coward-McCann, 1958), 207; Okrent, Last Call, 332, 317; NPP, 277, 288. Robert Post, “Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft,” Journal of Supreme Court History 1 (1998), 50–78; Address before Annual Convention of American Federation of Labor, 24 Jun. 1922, in CR 81 (21 Jun. 1922), 9076–82; “La Follette Lashes Federal Judiciary,” New York Times, 15 Jun. 1922, p. 1; NPP, 254; Katherine B. Fite and Louis Baruch Rubinstein, “Curbing the Supreme Court: State Experiences and Federal Proposals,” Michigan Law Review 35 (1937), 767; William F. Swindler, Court and Constitution in the Twentieth Century: The Old Legality, 1889–1932 (New York: Bobbs-Merrill, 1969), 284; “Power of the Bench,” Time, 12 Nov. 1923, p. 5.

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plan. Progressives bemoaned the “cult of the judicial robe,” the persistent popular belief in judicial impartiality. Republicans did make use of the Court’s protection of religious liberty to discredit La Follette.83 At least one progressive, Franklin D. Roosevelt, attributed Coolidge’s victory to La Follette’s attack on the Court, which gave the Republicans an issue and “frightened the people. La Follette was a fairy godfather to the Republican party.”84 In his inaugural address, Coolidge claimed, “The expression of the popular will in favor of maintaining our constitutional guarantees was overwhelming and decisive. There was a manifestation of such faith in the integrity of the courts that we can consider that issue rejected for some time to come.” Yet in 1928, Norris’s Judiciary Committee reported a bill to abolish all diversity and federal-question jurisdiction. Taft again mobilized opposition to the bill, which the Senate failed to enact.85 Unable to alter judicial institutions or procedures, progressive senators tried to shape judicial personnel. This approach followed Woodrow Wilson rather than Theodore Roosevelt. Law professor Felix Frankfurter, who understood that liberal judges would make liberal courts, told progressives to concern themselves “first and foremost in the education. . . of the bar, from which the bench is recruited.”86 Contesting judicial appointments on ideological, rather than patronage, grounds was a relatively new phenomenon. Stanley Matthews, who drew fire for having been counsel to Jay Gould, may have been the first. The Senate took no action when President Hayes nominated him in 1881, and confirmed him by a 24–23 vote when President Garfield renominated him later that year. Taft’s last appointment, Mahlon Pitney, though he had a progressive record, faced AFL opposition, and needed the help of his Princeton classmate Woodrow Wilson to win confirmation.87 Progressive resistance began in 83

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“Hughes in Chicago Promises Prosperity,” New York Times, 29 Oct. 1924, p. 8; “Glass Challenges Hughes’ Sincerity,” ibid., 28 Oct. 1924, p. 4; M. B. Carrott, “The Supreme Court and Minority Rights in the Nineteen-Twenties,” Northwest Ohio Quarterly 41 (1969), 144–56; Steven F. Lawson, “Progressives and the Supreme Court: A Case for Judicial Reform in the 1920s,” Historian 42 (1979–80), 419–36; William G. Ross, “The Role of Religion in the Defeat of the 1937 Court-Packing Plan,” Journal of Law and Religion 23 (2007), 637; Ross, Forging New Freedoms, 194; Burton K. Wheeler, Yankee from the West (New York: Doubleday, 1962), 253, 320. Marian C. McKenna, “Prelude to Tyranny: Wheeler, FDR, and the 1937 Court Fight,” Pacific Historical Review 62 (1993), 407. “Inaugural Address,” 4 Mar. 1925, M&PP 9485; Post, “Judicial Management,” 62; “Senate and Courts,” New York Times, 22 Apr. 1928, p. 56; William G. Ross, “The Role of Judicial Issues in Presidential Campaigns,” Santa Clara Law Review 42 (2002), 404. Lawson, “Progressives and the Supreme Court,” 435. John Anthony Maltese, The Selling of Supreme Court Nominees (Baltimore: Johns Hopkins University Press, 1995), 36; Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009), 159; John P. Frank, “Supreme Court Justice Appointments: II,” Wisconsin Law Review (1941), 346, 379; Paschal, Mr. Justice Sutherland, 156; Henry J. Abraham, Justices, Presidents and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton, rev. ed. (Lanham, MD: Rowman & Littlefield, 1999), 102; Michal R. Belknap, “Mr. Justice Pitney and Progressivism,” Seton Hall Law Review 16 (1986), 381–423.

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earnest with the appointment of Pierce Butler in 1922. Butler had been a railroad counsel and, as a regent of the University of Minnesota, had led what progressives regarded as a purge of disloyal faculty. La Follette fancifully claimed that the nomination “has done much to shake further the faith of the American people in the Supreme Court,” but his opposition gained no traction.88 The progressives nearly shot themselves in the foot when they targeted Coolidge’s only Supreme Court appointment, in 1925, Harlan F. Stone, who would become a reliable progressive. Stone’s early years captured much of the flux of America in the progressive era. He attended Amherst College, a classmate of Calvin Coolidge. Amherst had been founded in 1825 and derided as a “priest factory,” and gradually turned less orthodox. By 1890 it was largely deracinated, in the critical-scientific spirit that overtook the nineteenth-century denominational colleges that had produced most federal judges. But Coolidge and Stone matriculated during the presidency of the apostate Merrill Gates. Stone was a “reform Darwinist.” In an introduction to a collection of Herbert Spencer’s essays, he argued that Social Darwinism could promote progressive reform. He served as Dean of the Columbia Law School, which was attracting proponents of a more advanced form of sociological jurisprudence known as “legal realism.” At the same time, he defended the New York Court of Appeals’ Ives decision, and had many corporate clients in private practice. This led progressives to oppose his nomination as Attorney General and then to the Court. His continuation of a Justice Department investigation of Senator Burton Wheeler (La Follette’s Progressive party running mate in 1924) also caused trouble for Stone, whom Senator George Norris dubbed “the Morgan attorney.” Stone became the first Supreme Court nominee to appear before the Senate Judiciary Committee, and was confirmed by a comfortable margin. When President Roosevelt elevated the progressive mainstay to the Chief Justiceship in 1941, Norris took the opportunity to apologize.89 Stone was the only new appointment between 1922 and 1930, an unusually long period of stability for the Court. Progressive opposition crested when President Hoover made two appointments upon the resignation of Chief Justice Taft in February 1930 and the death of Justice Sanford a month later. Hoover quickly nominated Charles Evans Hughes to the Chief Justiceship. The Senate had changed its rules in 1929, and allowed floor debate on nominations, giving progressive court-critics and interest groups a new stage. Some senators

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David J. Danelsky, A Supreme Court Justice is Appointed (New York: Random House, 1964), 137; John P. Frank, “The Appointment of Supreme Court Justices: III,” Wisconsin Law Review (1941), 470–87. Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860–1910 (De Kalb: Northern Illinois University Press, 2004); Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956), 44, 96, 121, 181–200, 573; Mason, “Harlan Fiske Stone Assays Social Justice, 1912–23,” University of Pennsylvania Law Review 99 (1951), 887–918; Frank, “Appointment of Supreme Court Justices: III,” 489–96.

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objected to the fact that Hughes had resigned from the Court to seek the presidency in 1916. But progressive opposition centered on the belief that a justice having had corporate clients, as had Stone, would result in judicial bias in favor of big business. “The man who has never felt the pinch of hunger and who has never known what it was to be cold, who has never been associated with those who have earned their bread by the sweat of their faces, but who has lived in luxury, who has never wanted for anything that money could buy, is not fit to sit in judgment in a contest between organized wealth and those who toil,” Norris thundered. La Follette added that “organized greed and the rights of the masses” were at issue; the New Republic agreed.90 Though the administration was losing influence in Congress, the Senate confirmed Hughes, 52–26. Smelling blood, the progressives mounted an intense attack on Hoover’s next nominee, North Carolina appellate justice John J. Parker. The AFL and the NAACP organized to defeat him. The union federation opposed him because he had upheld lower-court injunctions in the 1927 Red Jacket case that prevented the United Mine Workers from trying to organize workers who had signed yellow-dog contracts. The NAACP attacked Parker because he had endorsed black disfranchisement in a 1920 gubernatorial campaign. Justice Brandeis urged his political arm, Felix Frankfurter, to promote opposition to the Parker nomination among progessive senators.91 North Carolina Senator Lee Overman chaired a three-man subcommittee to consider the nomination, and bowed to the AFL’s demand that he hold hearings. George Norris chaired the Judiciary Committee, and refused Overman’s request that Parker be permitted to appear in response to the charges.92 The opposition relied entirely on one decision and one speech. They misinterpreted the Red Jacket decision, which progressive academic commentators had praised. Though the union and civil rights organizations had nothing to do with each other, New York Senator Robert Wagner tried to link them when he told the Senate that Parker’s anti-union and racist views showed that “he is obviously incapable of viewing with sympathy the aspirations of those who are aiming for a higher and better place in the world. His sympathies naturally flow out to those 90

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Joseph P. Harris, The Advice and Consent of the Senate: A Study of the Confirmation of Appointments by the United States Senate (New York: Greenwood, 1968), 115; Maltese, The Selling of Supreme Court Nominees, 55; “Hughes Is Attacked by Borah and Glass,” New York Times, 12 Feb. 1930, p. 1; Paul A. Freund, “Charles Evans Hughes as Chief Justice,” Harvard Law Review 81 (1967), 10; Mason, Harlan Fiske Stone, 298; “The Supreme Court Under Fire,” New Republic, 26 Feb. 1930, p. 30; Paul Y. Anderson, “The Hughes Rebellion,” Nation, 26 Feb. 1930, p. 238. Brandeis to Felix Frankfurter, 17 Mar. 1930, in “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter, ed. Melvin I. Urofsky and David W. Levy (Norman: University of Oklahoma Press, 1991), 417. William C. Burris, Duty and Law: Judge John J. Parker and the Constitution (Bessemer, AL: Colonial Press, 1987); Richard L. Watson, Jr., “The Defeat of Judge Parker: A Study in Pressure Groups and Politics,” Mississippi Valley Historical Review 50 (1963), 213–34; Kenneth W. Goings, The N.A.A.C.P. Comes of Age: The Defeat of Judge John J. Parker (Bloomington: University of Illinois Press, 1990); Peter Graham Fish, “Red Jacket Revisited: The Case that Unraveled John J. Parker’s Supreme Court Appointment,” Law and History Review 5 (1987), 51–104.

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who are already on top.” This was an outrageously cheap personal smear. Parker’s genuine working-class background and disdain for artificial privilege made it especially perverse. It ignored the conflict between organized labor and black workers. Even the pro-union W. E. B. Du Bois recognized that injunctions had “been used, not simply to protect capitalists and employers, [but] to protect minority groups of employees against whom union labor discriminates. This is true especially of Negroes.”93 Norris’s committee recommended rejection, but the Hoover administration pressed for a full Senate vindication, but fell short by one vote. The progressives had almost certainly kept a progressive off the court. Parker continued to serve on the Fourth Circuit Court of Appeals until 1958, and compiled an impressively progressive record.94 He eulogized Justice Stone in 1949, mocking originalist jurisprudence.95 The Parker rejection is “now all but universally regarded not only as unfair and regrettable but a blunder.”96 Hoover was profoundly angered by the Senate rebuff. In a private memorandum, he condemned legislators who ignored the people’s confidence in the Court. Hoover decided to avoid an open confrontation with his opponents, but also resolved to nominate a conservative. To appease the progressives, he believed, would be to betray the Republicans who had remained loyal to him and Parker. He accordingly chose Owen J. Roberts as a “spite” nominee. Roberts’s economic background and beliefs were more conservative than those of Parker or Hoover, but he had no objectionable record on racial or labor issues.97 The administration trumpeted the nominee’s conservatism, but progressives insisted on seeing Roberts as an ally.98 The Senate quickly confirmed him. This final episode in the progressive campaign against the Court would thus have profound effects in the next decade. 93

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Homer F. Carey and Herman Oliphant, “The Present Status of the Hitchman Case,” Columbia Law Review 29 (1929), 450; CR 72 (30 Apr. 1930), 7811–14; Paul D. Moreno, Black Americans and Organized Labor: A New History (Baton Rouge: Louisiana State University Press, 2006), 149–52. ANB; Burris, Duty and the Law, 94. Goings, The N.A.A.C.P. Comes of Age, 76–86, disputes the record in civil rights cases. John J. Parker, “Harlan F. Stone: A Liberal in the American Pattern,” Syracuse Law Review 2 (1949–50), 4. The text that Parker used to caricature originalism came from Owen Roberts’ opinion in U.S. v. Butler. Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 2d ed. (New York: Oxford University Press, 1985), 200. Peter G. Fish, “Spite Nominations to the U.S. Supreme Court: Herbert C. Hoover, Owen J. Roberts, and the Politics of Presidential Vengeance in Retrospect,” Kentucky Law Journal 77 (1989), 557; Burt Solomon, “The Original Justice Roberts,” Journal of Supreme Court History 34 (2009), 199; David Burner, “Owen J. Roberts,” in The Justices of the United States Supreme Court, 1789–1969: Their Lives and Major Opinions, ed. Leonard Friedman and Fred L. Israel, 4 vols. (New York: Chelsea House, 1969), III: 2255; Richard D. Friedman, “Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation,” University of Pennsylvania Law Review 142 (1994), 1901. The Nation, 21 May 1930, p. 585; Paul Y. Anderson, “Plots and Counterplots,” ibid., 4 Jun. 1930, p. 651.

17 The Last Progressive

corporatism Of all the fables of the progressive historians, that of Herbert Hoover as the last of the laissez-faire liberals is among the most incredible. In fact, Hoover was the most progressive presidential candidate of the 1920s, whom his erstwhile supporters disowned. He was precisely the sort of technocratic administrator that progressives extolled. Hoover was personally extra-political, so that Democrats tried to enlist him as their presidential candidate in 1920. He had the support of Louis D. Brandeis, Franklin D. Roosevelt, and the New Republic.1 Hoover had contributed to Theodore Roosevelt’s 1912 campaign and served in the Wilson administration. The presidency was his first elective office. His principal program both as Secretary of Commerce and President was the promotion of “voluntary association.” “American individualism,” as Hoover called it, was “progressive individualism,” repudiating the “every man for himself and let the devil take the hindmost” view of laissez-faire capitalism, and also the bureaucratic regimentation of fascism or socialism.2 He promoted trade associations to aid “sick industries” such as lumber, coal, and agriculture, but also to promote fledgling ones such as aviation, radio, and motion pictures. He triumphed over the Justice Department when the Supreme Court reversed itself and took a more tolerant view of trade associations that went to the brink of price-fixing.3

1

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Joan Hoff-Wilson, Herbert Hoover: Forgotten Progressive (Boston: Little, Brown, 1975), 75; Murray N. Rothbard, “Herbert Hoover and the Myth of Laissez-Faire,” in A New History of Leviathan: Essays on the Rise of the American Corporate State, ed. Rothbard and Ronald Radosh (New York: Dutton, 1972); Charles Forcey, The Crossroads of Liberalism: Croly, Weyl, Lippmann and the Progressive Era, 1900–25 (New York: Oxford University Press, 1961), 299. Hoover, American Individualism and the Challenge to Liberty (West Branch, IA: Herbert Hoover Presidential Library Association, 1989 [1922]), 34. Ellis Hawley, “Three Facets of Hooverian Associationalism: Lumber, Aviation, and Movies, 1921–30,” in Regulation in Perspective: Historical Essays, ed. Thomas K. McCraw (Cambridge, MA: Harvard University Press, 1981), 97–121; M. Browning Carrott, “The Supreme Court and American Trade Associations, 1921–25,” Business History Review 44 (1970), 320–38.

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Hoover’s plan to regulate the new radio industry shows his progressive orientation. Congress authorized the Secretary of Commerce to issue licenses to transmit in 1912, when radio was mostly limited to ship-to-shore communication. As the traffic grew in the 1920s, Hoover began to deny license applications, to prevent interference by people using the same wave frequency. Federal courts ruled that Hoover had exceeded his power under the 1912 Radio Act; the Attorney General agreed. Nearly everyone then and since has assumed that since the radio spectrum is limited, government must ration it. In fact, the scarcity of this medium did not differ fundamentally from that of other price-allocated resources. The courts had already applied common-law rules to the problem. Congress aborted this development by the Radio Act of 1927, which established a federal commission to issue licenses according to “public interest, convenience, or necessity.” The large radio firms got federal help to stifle competition, and Hoover cooperated to prevent the establishment of private property rights. Valuable federal broadcast licenses were now distributed gratis by a bureaucracy, guided by nothing more than the ethereal “public interest” standard. The Act implicated free speech rights as much as economic rights.4 Many congressmen objected to the extension of this progressive model. “I know I take an old-fashioned attitude toward commissions,” said Connecticut Senator Hiram Bingham. “We are setting up here another one of those three-inone commissions, which personally I believe are a menace to our institutions.” New Jersey Representative Frederick Lehlbach agreed that such independent commissions “were obviously not contemplated by the framers of the Constitution.” Responsible to nobody, they posed a threat of “bureaucracy in its worst form.”5 Nobody could accuse the Supreme Court of judicial activism in this area. Chief Justice Taft confessed that “I have always dodged this radio question. I have refused to grant writs and have told the other justices that I hope to avoid passing on this subject as long as possible.” He regarded radio as something “occult” or “supernatural.”6 Consistent with his record as Food Administrator in World War One, Hoover showed with the Radio Act that he could discard voluntarism and employ government power when needed. But he had genuine qualms about involuntary cooperation, and those qualms during 4

5 6

R. H. Coase, “The Federal Communications Commission,” Journal of Law and Economics 2 (1959), 1–40; Thomas W. Hazlett, “The Rationality of U.S. Regulation of the Broadcast Spectrum,” Journal of Law and Economics 33 (1990), 133–75; Charlotte Twight, “What Congressmen Knew and When They Knew It: Further Evidence on the Origins of U.S. Broadcasting Regulation,” Public Choice 95 (1998), 247–76; Hazlett, “Oak Leaves and the Origins of the 1927 Radio Act: Comment,” ibid., 277–85; Mark Goodman and Mark Gring, “The Radio Act of 1927: Progressive Ideology, Epistemology, and Praxis,” Rhetoric and Public Affairs 3 (2000), 397–418. CR (30 Jun.–2 Jul. 1926), LH III: 2241; (29 Jan. 1927), ibid., 2269. Coase, “The Federal Communications Commission,” 40. Justice Brandeis was not so skittish about new media. He was determined to denounce television as a spying device in Olmstead v. U.S., until his law clerk convinced him that it had no such capability – Paul A. Freund, “The Evolution of a Brandeis Dissent,” Manuscripts 10 (1958), 18–25, 34; Lewis J. Paper, Brandeis (Englewood Cliffs, NJ: Prentice-Hall, 1983), 312.

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the catastrophe of the Great Depression made him appear more conservative than he actually was. Moreover, Hoover’s redefinition of himself as a conservative in his long post-presidential life also contributed to the progressive legend. To consider Hoover only after the New Deal is akin to considering Edmund Burke only after the French Revolution, and to forget how liberal both had been before the deluge.

agriculture and labor Hoover faced no serious challenge for the 1928 Republican nomination, and some depict him as more progressive than his Democratic opponent, Al Smith.7 He quickly called Congress into special session to deal with the farm problem. Hoover rejected the McNary–Haugen scheme of dumping abroad and subsidy fees, but wanted the federal government to help farmers limit production and raise prices by voluntary means. Congress produced the Agricultural Marketing Act, establishing a Federal Farm Board to lend $500 million to farm cooperatives, and required farmers to accept production quotas in order to receive price supports.8 Hoover called it “the most important measure ever passed by Congress in aid of a single industry.”9 But without means to compel crop reduction, agricultural production continued to rise and prices to fall, aggravated by the global depression. In 1930, the Farm Board purchased more than 25 percent of the country’s wheat crop, but failed to stop the price collapse. Moreover, farmers’ demand for more tariff protection spread to other industries, leading to the Smoot–Hawley tariff, which compounded the Depression. Agriculture Secretary Arthur Hyde asked a senator what would happen “to all our theories and principles of government . . . when we have got to the point to telling a farmer that he shall not cultivate more than fifty percent of his land?”10 Progressive as he was, Hoover recognized limits to governmental power. Hoover was especially ill-treated by organized labor. He had long advocated unionism. John L. Lewis praised his efforts to curtail wage-cutting competition in the coal industry. AFL President William Green reportedly voted for him in 1928. Hoover’s penchant for cartels in product markets naturally led him to favor cartels in labor markets. He opposed the “blanket injunction” that broke the 1922 railroad shopmen’s strike, and ardently supported the Railway Labor Act of 1926. When the Depression began, Hoover convinced prominent 7

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Martin L. Fausold, The Presidency of Herbert C. Hoover (Lawrence: University Press of Kansas, 1985), 25; Robert A. Slayton, Empire Statesman: The Rise and Redemption of Al Smith (New York: Free Press, 2001), 274. Gary D. Libecap, “The Great Depression and the Regulating State: Federal Government Regulation of Agriculture, 1884–1970,” in The Defining Moment: The Great Depression and the American Economy in the Twentieth Century, ed. Michael D. Bordo et al. (Chicago: University of Chicago Press, 1998), 189. Fausold, Presidency of Herbert C. Hoover, 50. Gilbert C. Fite, “The McNary-Haugen Episode and the Triple-A,” Journal of Farm Economics 42 (1960), 1092.

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industrialists to maintain wages.11 He also supported the Davis–Bacon Act in 1931, which required government contractors to pay the “prevailing” (union) wage rate for government projects. This Act protected union labor in Northern cities from competition from lower-wage migrants – “cheap colored labor,” as two Representatives called it – from the South. The Secretary of Labor determined the “prevailing” wage rate to be the union wage rate, thus removing incentives to hire non-union workers.12 But Hoover refused to agree to all of labor’s demands. He would not give unions the power to coerce employers and non-union workers, believing that experts like himself should decide what labor was worth.13 Thus Hoover seized upon the Norris–La Guardia bill, which did what the AFL claimed that the Clayton Act had done – prohibited the issuance of injunctions in labor disputes except in cases of actual violence or fraud. It made yellow-dog contracts unenforceable in federal courts, and suggested that unions were exempt from the antitrust laws. The bill declared that “the individual unorganized worker is commonly helpless to exercise actual liberty of contract,” and the government must intervene “that he have full freedom of association.”14 Hoover tried to kill the measure – union counsel Donald Richberg claimed that Hoover had tried to bribe him with a federal judgeship.15 Hoover got a non-committal opinion from his Attorney General, who said that objections to the bill “are of such a controversial nature that they. . . can only be set at rest by judicial decision.”16 Unable to stop it, Hoover signed the bill and tried to take credit for it.17

the cardozo appointment Hoover took an impressive progressive step with his last Supreme Court appointment, of Benjamin Cardozo to replace Oliver Wendell Holmes. Cardozo, the chief justice of the New York Court of Appeals, was associated 11

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Fausold, Presidency of Herbert C. Hoover, 119, 28; Rothbard, “Herbert Hoover and the Myth of Laissez-Faire,” 116–20. “Contractors Score Wage Rates Bill,” New York Times, 9 Feb. 1931, p. 3; David E. Bernstein, “The Davis-Bacon Act: Vestige of Jim Crow,” National Black Law Journal 13 (1994), 276–97; Armand Thieblot, Jr., The Davis-Bacon Act (Philadelphia: University of Pennsylvania Press, 1975), 6–10. Hoff-Wilson, Herbert Hoover, 54. 47 Stat. 70 (1932), secs. 2, 4–5; Lawrence H. Chamberlain, The President, Congress and Legislation (New York: Columbia University Press, 1946), 159; George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge: Cambridge University Press, 2002), 196; Lewis L. Lorwin and Arthur Wubnig, Labor Relations Boards: The Regulation of Collective Bargaining Under the National Industrial Recovery Act (Washington: Brookings, 1935), 22. Ruth O’Brien, Workers’ Paradox: The Republican Origins of New Deal Labor Policy (Chapel Hill: University of North Carolina Press, 1998), 170. William D. Mitchell to Herbert Hoover, 23 Mar. 1932, PPHH II: 145; Chamberlain, The President, Congress and Legislation, 159–64. Ruth O’Brien, Workers’ Paradox.

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with the movement known as “legal realism,” a more radical version of sociological jurisprudence.18 To the earlier intellectual influences of utilitarianism and Darwinism it added Freudian psychology. Some adopted a thoroughgoing cognitive relativism derived from the discovery of non-Euclidian geometry, to argue that all formal intellectual systems were arbitrary and conventional. The calamity of the First World War reinforced the impression of intellectual disintegration. In philosophical terms, legal realism would better be termed “legal nominalism.”19 Never a coherent or organized movement, it debunked without presenting an alternative. Realism influenced legal academics more than judges, and concerned itself mostly with private, common-law questions rather than public and constitutional ones. As one observer has noted, it could degenerate “into a childish nihilism.”20 Jerome Frank, among the most outré of the Realists, praised Holmes for “Non-Euclidian Legal Thinking.” Frank saluted Holmes as the first to analyze law as Machiavelli had analyzed politics, according to the “actualities” of natural science. He “made it clear that traditional jurisprudence is founded upon the erroneous notion – sometimes expressed, but more often implicit – that there are self-evident truths about the judicial process.”21 Holmes upended the “naïve” idea that law was something that judges discovered or declared rather than made. He debunked the fond hope that we could have “a government of laws and not of men,” which hope derived from our psychological need for divine authority and certainty. Legal academics throughout the 1930s explained popular veneration for the Constitution in such psychological terms.22 Cardozo, a practicing judge rather than an academic, was certainly not a Realist of Frank’s type. He was best known for The Nature of the Judicial Process, a series of lectures at Yale Law School in 1921. “I take judge-made law as one of the existing realities of life,” he began. He opined that “For every tendency, one seems to see a counter-tendency; for every rule its antinomy. Nothing is stable. Nothing is absolute. All is fluid and changeable. There is an endless ‘becoming.’ We are back with Heraclitus.” “Law never is,” he wrote, “but it is always about to be.” He concluded that “the juristic philosophy of the common law is at bottom the philosophy of pragmatism.” But Cardozo believed 18

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Roscoe Pound, “Fifty Years of Jurisprudence,” Harvard Law Review 51 (1938), 790; Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University of Kentucky Press, 1973); James Herget, American Jurisprudence, 1870– 1970: A History (Houston: Rice University Press, 1990), 179; G. Edward White, “From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early TwentiethCentury America,” Virginia Law Review 58 (1972), 999–1028; Grant Gilmore, “Legal Realism: Its Cause and Cure,” Yale Law Journal 70 (1961), 1037–48. Mortimer J. Adler, “Legal Certainty,” Columbia Law Review 31 (1931), 98; Pound, “Fifty Years of Jurisprudence,” 799. Neil Duxbury, Patterns of American Jurisprudence (New York: Oxford University Press, 1995), 157; Gilmore, “Legal Realism,” 1038. Cornell Law Quarterly 17 (1932), 570. Like many Realists, Frank attacked the scientism of Langdell, not classical natural law jurisprudence. Duxbury, Patterns of American Jurisprudence, 118. See chapter 22, section 2.

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in objective standards of social justice, even if they were unknowable. “We cannot transcend the limitations of the ego and see anything as it really is. Nonetheless, the ideal is to be striven for within the limits of our capacity.” Otherwise law would degenerate into gefühlsjurisprudenz, “a jurisprudence of mere sentiment or feeling.” He hinted at the Marxist view that “The spirit of the age, as it is revealed to each of us, is too often only the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us a place,” but concluded with a bold assertion of the certain progress of law in the future.23 Cardozo’s best-known decision, Macpherson v. Buick Motor Co., showed his contribution to progressive jurisprudence. This decision abrogated the commonlaw doctrine of “privity of contract,” and permitted the purchaser of a defective automobile to sue the producing corporation rather than the dealer from whom he had immediately purchased the product. This contributed to the progressive campaign to establish a system of “enterprise liability,” in which the legal system would turn corporations into providers of social insurance for consumers.24 But Cardozo’s terse and elegant style often masked such implications. One scholar has called Macpherson “the quietest of revolutionary manifestoes, the least unsettling to conservative sensibilities.”25 Similarly, when Cardozo smote the yellow-dog contract in New York, one progressive commentator called it “a bit disappointing to find that court shaping its results in terms of old-time formulas. We are only too forcefully reminded of what a great scholar of that court has said, ‘Justice is not to be taken by storm. She is to be wooed by slow advances.’”26 Nor was Cardozo consistently progressive in his decisions. This enlarged his political appeal. “An important part of Cardozo’s rhetorical skill was his ability to sugarcoat the pragmatist pill,” one biographer notes, “so that not only his judicial colleagues but the entire legal establishment accepted him as a consummate insider rather than fearing him as a bomb-throwing radical.”27 Thus President Taft had offered him a federal district judgeship, and the conservative academic Nicholas Murray Butler recommended him for the Supreme Court in 1922. He has been aptly called a “small-r Realist.”28

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The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 10, 28, 126, 106, 136, 141, 178. 217 N.Y. 382 (1916); George L. Priest, “The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law,” Journal of Legal Studies 14 (1985), 461–527. Richard A. Posner, Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990), 109. Homer F. Carey and Herman Oliphant, “The Present Status of the Hitchman Case,” Columbia Law Review 29 (1929), 460, quoting Cardozo, The Growth of the Law (New Haven: Yale University Press, 1924), 133. Posner, Cardozo, 113, 128; Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton: Princeton University Press, 2010), 19, 126. Richard D. Friedman, “Cardozo the [Small r] Realist,” Michigan Law Review 98 (2000), 1738–65; Andrew L. Kaufman, Cardozo (Cambridge: Harvard University Press, 1998), 461.

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Cardozo’s great reputation allowed Hoover to cast aside the usual geographic and ethnocultural considerations and appoint him to a Supreme Court that already had two New Yorkers and a Jew. Historians dispute Hoover’s motives in making the appointment.29 Like Taft, Hoover believed that he ought to appoint a Democrat and be “fair to all elements.” The rough treatment of his earlier nominees, and the fact that he was replacing a progressive icon, inclined Hoover toward a progressive. Since the “yellow-dog” contract issue had doomed John J. Parker, it was especially helpful that Cardozo in New York had joined decisions that nullified those anti-union devices.30 He would have preferred his more conservative Attorney General, William Mitchell. But Hoover needed him in his prohibition-enforcement campaign, and Mitchell was a Minnesotan, like Justice Butler. The conservative bloc on the Court favored Mitchell, and warned Hoover against appointing a progressive. Justice Van Devanter in particular worried that Hoover’s successor would show no reciprocal consideration to conservatives. Cardozo also made himself more appealing by a public denunciation of the Realists in a January 1932 address to the New York State Bar Association. One week after Holmes had announced his retirement, amidst plenty of talk that he was a likely choice, Cardozo, like Roscoe Pound, now distanced himself from the more radical notions emerging from the progressive legal academy. He discounted the Realists as “neo-realists,” who had taken too far ideas broached by Holmes, Pound, and continental jurists like Savigny and Jhering. “Not a little that has been said by one votary or another must be rejected. . . as ill-advised and exaggerated,” he told his audience. Cardozo surmised that the Realists did not really believe their own extreme skepticism, “the outbursts of a solipsism condemned out of their own mouths.” He confessed that he had mellowed, saying that his statement that “law never is, but is always about to be” was “analysis carried to such a point as to destroy the very subject that it intended to explain.”31 Though Justice Van Devanter worried that the speech indicated that Cardozo was “unstable and as wishing to depart from old landmarks and take up with new and uncertain experiments,” it upset progressives more than conservatives. Whether Hoover’s choice was politically naïve or astute, the Senate unanimously confirmed it. Even in his later, more conservative years, Hoover called Cardozo a “constitutionalist,” as opposed to the “New Dealer” Roosevelt appointees, despite the fact that Cardozo was the most consistently 29

30

31

Ira H. Carmen, “The President, Politics, and the Power of Appointment: Hoover’s Nomination of Mr. Justice Cardozo,” Virginia Law Review 55 (1969), 616–69; Andrew L. Kaufman, “Cardozo’s Appointment to the Supreme Court,” Cardozo Law Review 1 (1979), 23–53. Edwin E. Witte, “‘Yellow Dog’ Contracts,” Wisconsin Law Review 6 (1930), 26; Carey and Oliphant, “The Present Status of the Hitchman Case,” 441–60. “Address of Chief Judge Cardozo,” 22 Apr. 1932, in New York State Bar Association Proceedings (Albany: Argus, 1932), 262–307; Roscoe Pound, “The American Idea of Government,” American Bar Association Journal 30 (1944), 497–503; David Wigdor, Roscoe Pound: Philosopher of Law (Westport, CT: Greenwood, 1974), 256–64; Kaufman, Cardozo, 456–62.

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pro-New Deal justice on the Court.32 Together with Hughes and Roberts, Hoover had made the Supreme Court more progressive.33

the depression Hoover’s progressivism manifested itself in his response to the Great Depression, the event that would finally and fundamentally re-orient American politics, putting an end to a seventy-year period of Republican ascendancy. The cause of the Depression will probably never be ascertained, and was the source of sharp partisan argument. The Democrats claimed that the Depression showed that the Republican prosperity of the 1920s was a sham. Economic power had become so concentrated that the nation suffered from “overproduction” and “underconsumption.” The wealthy few greedily engrossed so much of the nation’s income that the mass of workers could not purchase the very goods that they produced. Despite the lack of empirical evidence for the “underconsumption” interpretation, it prevailed politically and in historical analysis.34 It is more likely that the Depression was an ordinary business contraction intensified and protracted by international factors and domestic policy. The Federal Reserve Board contributed, as it had similarly exacerbated the last postwar depression.35 Fed policy produced a “hidden inflation” – or the prevention of a deflation – that would have increased consumption and raised living standards more than they rose in the decade.36 The board, after the death of New York Reserve Bank president Benjamin Strong, repeatedly failed to prevent bank panics after 1929, and presided over an unprecedented series of bank failures. The Board may have shown mere ineptitude, or it may have deliberately attempted to eliminate non-member bank competition.37 Congress had delegated tremendous monetary power to this agency without any clear goals or standards for its use. Nevertheless, the Federal Reserve largely escaped censure, and would survive to see its powers augmented. Only a few days before the election, Hoover noted that the Democrats had created the Federal Reserve System to prevent booms 32

33

34

35

36

37

Kaufman, Cardozo, 461, 492–94; Herbert Hoover, The Memoirs of Herbert Hoover, 3 vols. (New York: Macmillan, 1951–52), III: 378; Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), 225. John A. Fairlie, “Has the Constitution Gone?” Michigan Law Review 33 (1935), 1044. However enigmatic, Roberts was certainly more of a progressive than his predecessor, Edward T. Sanford. C. A. Phillips et al., Banking and the Business Cycle: A Study of the Great Depression in the United States (New York: Macmillan, 1937), 35–36, 76; Thomas B. Silver, Coolidge and the Historians (Durham, NC: Carolina Academic Press, 1982), 123–36. Gary M. Anderson, William F.Shugart II, and Robert D. Tollison, “A Public Choice Theory of the Great Contraction,” Public Choice 59 (1988), 3–23; Milton Friedman and Anna Jacobson Schwartz, The Great Contraction, 1929–33 (Princeton: Princeton University Press, 1965); David R. Wells, The Federal Reserve System: A History (Jefferson, NC: McFarland, 2004), 59. Murray N. Rothbard, America’s Great Depression, 5th ed. (Auburn, AL: Ludwig von Mises Institute, 2000). Anderson, Shugart, and Tollison, “Public Choice Theory.”

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and busts, and that it had failed. “I do not criticize the Federal Reserve System,” Hoover said. “I believe in it.” But its failure ought not be imputed to the administration. The Democrats were culpable “for having failed to do the job which they promised would be done by the panacea of their own institution.”38 Hoover took responsibility for combating the Depression as no previous president had, rejecting the advice of laissez-faire voices such as Treasury Secretary Andrew Mellon to let the Depression run its course via deflation and liquidation. Hoover channeled his efforts through government-sponsored voluntary cooperation among businessmen – urging, for example, that they maintain high wages and curtail profits and dividends first. In keeping with his idea that engineers rather than markets should set wage rates, Hoover persuaded most large industrialists to maintain wage rates, and got organized labor to agree not to press for union representation in open shops. The AFL congratulated Hoover for his policy at its 1931 convention, and Hoover frequently boasted that his labor policies had enabled the country to weather the Depression with a minimum of strikes and lockouts. But his policy decisions intensified and prolonged the Depression, lowering output and raising unemployment. While Hoover could be exonerated for the Federal Reserve’s failure, his labor policies impeded recovery.39 Hoover signed the little-noted Federal Employment Stabilization Act of 1931, an unprecedented federal commitment to control the business cycle to maximize employment. Progressives had for many years attempted to get government to provide work relief for the unemployed; New York Senator Robert Wagner called for a federal program in 1928. The economic collapse amplified these calls, and in February 1931 Congress established a law creating a Federal Employment Stabilization Board, to advise the president on unemployment problems and directing him to ask Congress for emergency spending on construction projects. It provided a model for a series of economic “planning” projects in ensuing years. Despite Hoover’s budgetary qualms, no administration had ever spent so much or run such large deficits in peacetime. Real percapita federal spending nearly doubled under Hoover. Democrats, who effectively controlled Congress after the 1930 elections, cooperated with Hoover until he sought a sales tax to relieve the deficit. He did sign the Revenue Act of 1932, sharply increasing income-tax rates along the lines of those of the First World War. Hoover also feared that direct relief to individuals would turn into political patronage and sap the moral fiber of recipients, but ultimately accepted

38 39

“Campaign Speech,” St. Louis, 4 Nov. 1932, PPHH II: 436. Lee E. Ohanian, “What – or Who – Started the Great Depression?” Journal of Economic Theory 144 (2009), 2310–35; Harold L. Cole and Lee E. Ohanian, “The Great Depression in the United States from a Neoclassical Perspective,” Federal Reserve Bank of Minneapolis Quarterly Review 23 (1999), 2–24; Cole and Ohanian, “New Deal Policies and the Persistence of the Great Depression: A General Equilibrium Analysis,” Journal of Political Economy 112 (2004), 779–816.

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the Emergency Relief and Construction Act, aware that Congress had the power to override a veto.40 The federal government intervened most decisively through the Reconstruction Finance Corporation. It resurrected the War Finance Corporation of World War One, which had only recently expired. A wartime agency, Congress extended it in 1921 (with Hoover’s assistance) to provide loans to farm cooperatives.41 The RFC essentially did what the Federal Reserve Board had failed to do, acting as a “lender of last resort” for banks and public utilities. Critics easily derided the agency as a “millionaires’ dole.” Nebraska progressive George Norris jeered that “I have been called a socialist. . . but in the wildest flights of my imagination I never thought of such a thing.”42 Hoover did not want to recommend the agency, but by early 1932 it exceeded even his political ability to resist it. The corporation did become notoriously politicized and corrupt.43 Thus, Hoover fairly sought re-election on the claim that he had launched “the most gigantic program of economic defense and counterattack ever evolved in the history of the Republic. . . No government in Washington has hitherto considered that it held so broad a responsibility for leadership in such times.” At the same time, he claimed that “we have maintained the sanctity of the principles upon which this Republic has grown great.”44 Historians have long noted that “For partisan reasons Hoover’s innovative actions to relieve the Great Depression have been ignored, while those of the Roosevelt administration have been exaggerated.” New Dealer Rex Tugwell averred in 1974 that “We didn’t admit it at the time, but practically the whole New Deal was extrapolated from programs that Hoover started.”45 Thomas E. Dewey recalled that Hoover admitted that he would have signed all of the New Deal legislation that Roosevelt did.46 But Hoover did adopt many proto-New Deal policies with doubt and hesitation, in response to exigent political circumstances. As a libertarian critic noted, “If New Deal socialism was the logic of Hoover’s policy, he cautiously extended the logic only so far.”47 40

41

42

43

44 45 46 47

Jordan A. Schwarz, The Interregnum of Despair: Hoover, Congress, and the Depression (Urbana: University of Illinois Press, 1970), 35, 106, 172; Udo Sautter, “Government and Unemployment: The Use of Public Works Before the New Deal,” Journal of American History 73 (1986), 73–75, 83; Senate Committee on Banking and Currency, History of the Employment Stabilization Act of 1931 (Washington: G.P.O., 1945); E. Cary Brown, “Fiscal Policy in the ‘Thirties: A Reappraisal,” American Economic Review 46 (1956), 868. Gerald D. Nash, “Herbert Hoover and the Origins of the Reconstruction Finance Corporation,” Mississippi Valley Historical Review 46 (1959), 455–68; Hoff-Wilson, Herbert Hoover, 156. Schwarz, Interregnum of Despair, 88–92; Rothbard, America’s Great Depression, 125; James S. Olson, Saving Capitalism: The Reconstruction Finance Corporation and the New Deal, 1933–40 (Princeton: Princeton University Press, 1988), 13. Walker F. Todd, “History of and Rationales for the Reconstruction Finance Corporation,” Economic Review 28 (1999), 22–35. “Accepting the Republican Nomination for President,” 11 Aug. 1932, PPHH II: 249. Hoff-Wilson, Herbert Hoover, 158. David Burner, Herbert Hoover: A Public Life (New York: Knopf, 1979), 329. Rothbard, America’s Great Depression, 323.

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fdr In 1932, Hoover faced an opponent who was ready to extend this logic and take progressivism to the next level. But Franklin D. Roosevelt presents us with an even more enigmatic figure than Woodrow Wilson. He was in many ways a composite of the progressive rivals of 1912. He was of course a Roosevelt, admired TR, and seems to have become a Democrat as a result of locale and happenstance. Progressives such as George Norris cried in 1932 that it was time for “another Roosevelt in the White House.”48 He won his first office along with Wilson in 1910, similarly by an anti-machine appeal. Wilson’s presidential election brought FDR to Washington, as Assistant Secretary of the Navy, the office that TR held before becoming vice-president. His political ascent seemed to have come to an end in losing the vice-presidential race of 1920, followed by a crippling case of polio. Few have seen in FDR any deep intellectual commitments. He is most commonly depicted as a pragmatic opportunist. Yet, in a more technical sense, “pragmatism” was the foundation of the entire progressive-modern liberal mind. Others have depicted FDR offhandedly as a “Machiavellian,” without considering the profound implications of such a heritage. Similarly, even admiring biographers regard his effort to create a “Leviathan State” as praiseworthy. He could fairly be described in a term that TR used to describe Wilson, as a “rural Tory,” in the Disraelian mode, perhaps as a Fabian or Christian socialist.49 In this sense, Roosevelt appears as a “conservative,” but in the way in which all of the progressives were conservatives, in their repudiation of the Founding-era philosophy of natural rights, as Calvin Coolidge pointed out on the sesquicentennial of the Declaration.50 Roosevelt followed Wilson in conducting an ambivalent, often apparently conservative campaign to win the nomination and election, and then becoming more thoroughly progressive to win re-election.51 Though Hoover himself

48 49

50 51

“Roosevelt Praises Norris in New Plea Against Party Lines,” New York Times, 29 Sep. 1932, p. 1. Richard Hofstadter, The American Political Tradition and the Men Who Made It (New York: Vintage, 1974 [1948]), 410–59; James MacGregor Burns, Roosevelt: The Lion and the Fox (New York: Harcourt, 1956); Robert Eden, “On the Origins of the Regime of Pragmatic Liberalism: John Dewey, Adolf A. Berle, and FDR’s Commonwealth Club Address of 1932,” Studies in American Political Development 7 (1993), 74–150; William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 236; Leuchtenburg, “When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman Thesis,” Yale Law Journal 108 (1999), 2111; Frank Freidel, Franklin D. Roosevelt: A Rendezvous with Destiny (Boston: Little, Brown, 1990), 3–8; William E. Leuchtenburg, The F.D.R. Years: On Roosevelt and His Legacy (New York: Oxford University Press, 1995), 20; Daniel R. Fusfeld, The Economic Thought of Franklin D. Roosevelt and the Origins of the New Deal (New York: Columbia University Press, 1956), 13; David N. Mayer, “The Myth of ‘Laissez-Faire Constitutionalism’: Liberty of Contract During the Lochner Era,” Hastings Constitutional Law Quarterly 36 (2009), 246; Edward S. Shapiro, “Decentralist Intellectuals and the New Deal,” Journal of American History 58 (1972), 938–57. Address, 5 Jul. 1926, M&PP 9581–83. Frank Freidel, “Election of 1932,” in History of American Presidential Elections, 4 vols., ed. Arthur M. Schlesinger, Jr. et al. (New York: Chelsea House, 1971), III: 2735.

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showed little consistency in principle as president or candidate, he had good reason to call Roosevelt “a chameleon on plaid.”52 FDR echoed Theodore Roosevelt in the 1912 election by calling progressivism the effort to establish “the liberty of the Community rather than the liberty of the individual.”53 He denounced the “dangerous tendency” of federal encroachment on state power. “The elastic theory of interstate commerce, for example, has been stretched almost to the breaking point to cover certain regulatory powers desired by Washington.”54 And he reiterated the traditional Democratic regard for states’ rights the next year. “The governing rights of the states are all those which have not been surrendered to the national government by the Constitution,” he said, including public utility regulation, banking, agriculture, education, and social welfare. “In these, Washington must not be encouraged to interfere.” While praising the “marvelously elastic” nature of the Constitution, he maintained that it still must protect minority rights against democratic majorities. When “mere numerical superiority by either states or voters in this country proceeds to ignore the needs and desires of the minority,” this “will mark the failure of our constitutional system.” FDR also criticized the progressive “doctrine of regulation and legislation by ‘master minds,’ in whose judgment and will all the people may gladly and quietly acquiesce.” History taught that it was unwise to trust in the disinterested motives of administrators. He pointed to the Ninth and Tenth Amendments as the keystones preserving the constitutional structure. And behind those were “the underlying principles on which this government is founded,” principally the idea “that every citizen is entitled to live his own life in his own way so long as his conduct does not injure any of his fellowmen.”55 These sentiments also underlay his support for what would be the only clear-cut issue in the 1932 campaign, the repeal of prohibition.56 On the other hand, Roosevelt compiled a progressive record as governor, especially as the Depression deepened. He stressed relief for farmers, public control of electric power, and unemployment relief. On social welfare issues he often advocated active government. He claimed that Americans had developed “the belief that the State has a positive right, not just an obligation, to see that the health of individuals is brought up to a higher level.” He observed that the most striking feature of modern civilization “is the universal recognition that the first duty of the State, and by that I mean a Government, is to promote the welfare of the citizens of the State. It is no longer sufficient to protect them from invasion, from lawless and criminal acts, from injustice and persecution, but the State 52 53

54 55 56

“Indianapolis Hails Chief,” New York Times, 29 Oct. 1932, p. 1. Address to the Civic Forum, Troy, NY, 3 Mar. 1912; Fusfeld, Economic Thought of Franklin D. Roosevelt, 49; Kenneth S. Davis, F.D.R.: The Beckoning of Destiny, 1882–1928: A History (New York: Putnam, 1972), 266. “Address Before Conference of Governors,” New London, 16 Jul. 1929, PP&A I: 367. “Radio Address,” 2 Mar. 1930, PP&A I: 570–75. Walter Lippmann criticized him for cloaking the repeal issue in the garb of states rights – Roosevelt to John C. Bonbright, 11 Mar. 1930, in F.D.R.: His Personal Letters, 1928–45, ed. Elliot Roosevelt, 4 vols. (New York: Kraus, 1970 [1950]), I: 110.

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must protect them, so far as lies in its power, from disease, from ignorance, from physical injury, and from old-age want.” He blamed the Depression on overproduction, underconsumption, and excessive concentration of wealth. His annual message to the New York State state legislature in 1932 adumbrated many of the themes of the presidential campaign. Roosevelt urged it to deal with the economic depression “as if we were engaged in war.” Roosevelt called for “regional planning” to redistribute population, moving urbanites closer to the food supply. He concluded that although “the American system of economics and government is everlasting,” we must “not seek merely to restore. Let us restore and at the same time remodel.”57

the 1932 election Roosevelt was the most progressive of the principal contenders for the Democratic nomination in 1928. He aligned himself with the Southern and Western wings of the party, and distanced himself from the urban-immigrant wing, though he accepted the repeal of prohibition. Hoover hoped that Roosevelt’s association with the Bryanite wing of the party would move conservative Democrats to re-elect him. Regarding Roosevelt as the most defeatable of the Democratic field, Hoover made sub rosa efforts to help his nomination.58 In an April radio address, often referred to as the “forgotten man” speech, Roosevelt claimed that “the nation faces today a more grave emergency than in 1917.” As in the mobilization for that war, the nation needed to “build from the bottom up and not from the top down,” to “put their faith once more in the forgotten man at the bottom of the economic pyramid.” Increased government spending and public works would be only a stopgap, treating the symptoms rather than the cause of the depression, which was the unequal distribution of income. Echoing Lincoln, he argued that “No nation can long endure half bankrupt.” “Here should be an objective of our government itself, to provide at least as much assistance to the little fellow as it is now giving the large banks and corporations.”59 This provoked Al Smith to tell Democrats that he would fight any candidate who “persists in a demagogic appeal to the working classes.”60 The Wall Street 57

58

59

60

“Address,” Saratoga Springs, 25 Jun. 1929, PP&A I: 351; “Address,” New York, 17 Jan. 1930, PP&A I: 330; “Annual Message,” 6 Jan. 1932, PP&A I: 111–24. Friedel, Franklin D. Roosevelt, 67; Schwarz, Interregnum of Despair, 191–98; William G. Thiemann, “President Hoover’s Efforts on Behalf of FDR’s 1932 Nomination,” Presidential Studies Quarterly 24 (1994), 87–91. “Radio Address,” 7 Apr. 1932, PP&A I: 624–27. In 1925, Roosevelt had insisted that the war was won “from the top down, not the bottom up. This is very important.” Davis, F.D.R., 497. Arthur Krock, “Mobilize at the Capital,” New York Times, 14 Apr. 1932, p. 1; “Comment of the Nation’s Press on Ex-Governor Smith’s Speech,” New York Times, 15 Apr. 1932, p. 10; “Smith Derides Talk of ‘Forgotten Man’ but Supports Ticket,” ibid., 1 Oct. 1932, p. 1; Donald A. Ritchie, Electing F.D.R.: The New Deal Campaign of 1932 (Lawrence: University Press of Kansas, 2007), 86.

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Journal derided Roosevelt’s speech as “vote-begging piffle,” but the New Republic applauded him for taking on the “plutagogues.”61 Roosevelt took a step back in a speech at St. Paul. “I am not speaking of an economic life completely planned and regimented,” he said, “I plead not for a class control but for a true concert of interests.” He did confirm a desire for economic planning, however. “The plans we may make for this emergency, if we plan wisely. . . may show the way to a more permanent safeguarding of our social and economic life. . .. In this sense I favor economic planning, not for this period alone but for our needs for a long time to come.”62 He tacked left a month later in a speech at Oglethorpe University, reiterating that the country needed “a wiser, more equitable distribution of the national income.” “We will have to make reward for labor greater, and reward for capital less,” he said. “I believe that we are on a threshold of a fundamental change in our popular economic thought, that in the future we are going to think less about the producer and more about the consumer.” He did not specify how this redistribution would take place, but claimed that “The country needs, and unless I mistake its temper, the country demands bold, persistent experimentation.”63 Accepting the nomination, Roosevelt also sounded discordant themes. Flying to Chicago to accept the nomination in person, he told the delegates, “Let it be from now on the task of our party to break foolish traditions,” and claimed that “the Democratic party by tradition and by the continuing logic of history, past and present, is the bearer of liberalism and progress.” He observed, as many others had, that “the great social phenomenon of this depression, unlike others before it, is that it has produced but few of the disorderly manifestations that too often attend upon such times.” But he told the delegaton not to “misunderstand their patience.” He returned to the “forgotten man” trope, claiming that “Throughout the nation, men and women, forgotten in the philosophy of government of the last years look to us here for guidance and for more equitable opportunity to share in the distribution of national wealth. . .. I pledge you, I pledge myself, to a new deal for the American people.” He concluded with another martial metaphor. “This is more than a political campaign; it is a call to arms. Give me your help, not to win votes alone, but to win this crusade to restore America to its own people.”64 The “new deal” phrase quickly became the theme of the campaign and the era. Roosevelt speechwriter Samuel Rosenman took the phrase from a series of articles by Stuart Chase in the New Republic, giving that journal the distinction

61

62

63 64

“The Right Road at Last,” Wall Street Journal, 9 Apr. 1932, p. 6; “Demagogues and Plutagogues,” New Republic, 27 Apr. 1932, p. 285. “Address,” St. Paul, 18 Apr. 1932, PP&A I: 627–35; “Opinions of the Press on Governor Roosevelt’s Speech,” New York Times, 20 Apr. 1932, p. 3. “Address,” Oglethorpe University, 22 May 1932, PP&A I: 639–46. “Nomination Acceptance Speech,” 2 Jul. 1932, PP&A I: 647–59;William E. Leuchtenburg, Franklin Delano Roosevelt and the New Deal, 1932–40 (New York: Harper & Row, 1963), 26.

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of providing the campaign theme for both Roosevelts.65 Chase was one of the chief proponents of the overproduction–underconsumption theory of the Depression, an avid disciple of Thorstein Veblen and John Maynard Keynes. He believed that America could avoid fascist or socialist revolution by a “drastic and progressive revision of the economic structure avoiding an utter break with the past. It must entail collectivism pushed at last to control from the top, but control over landmarks with which we are reasonably familiar. It may entail a temporary dictatorship; I do not know.” His principal methods were a managed currency, redistributive taxation, and public works spending. “And woe to the Supreme Courts, antiquated rights of property, checks and balances and democratic dogmas which stand in its path.”66 Chase advocated technocratic rule, endorsing a “practical dictatorship” based on an “alliance of the technical intelligentsia with the working class,” institutionalized in an all-powerful National Planning Board. “Plato once called for philosopher kings,” he wrote, “Today the greatest need in all the bewildered world is for philosopher-engineers.” He wrote an article for the Nation in 1931 series entitled “If I Were Dictator” and, like many progressives, praised Stalin’s Soviet Union. Chase “never disguised the authoritarianism of his social vision nor his anti-democratic convictions,” one critic observed. He declared that Americans should gladly exchange economic security for “all the political democracy ever heard of, and all the constitutions, and all the founding fathers.”67 Yet Roosevelt accepted a platform that called for “an immediate and drastic reduction of governmental expenditures. . . to accomplish a saving of not less than 25%” in federal spending. In addition to a balanced budget, it called for “the removal of government from all fields of private enterprise except where necessary to develop public works and natural resources in the common interest,” and condemned “the extravagance of the Farm Board.”68 Roosevelt amplified his commitment to a “sound currency to be preserved at all hazards,” and said “Let us have the courage to stop borrowing to meet continuing deficits. Let us have equal courage to reverse the policy of the Republican leaders and insist upon a sound currency.” He similarly denounced “the enormous increase in the growth of what you and I call bureaucracy. . .. We need to simplify what the federal government is giving to the people. I accuse the present administration of being the greatest spending administration in peace times in our history. It is an administration that has piled bureau on bureau.”69

65

66 67

68 69

Ritchie, Electing F.D.R., 110; Stuart Chase, “A New Deal for America I: The Nemesis of Progress,” New Republic, 29 Jun. 1932, p. 169, began the series. The phrase had cropped up in earlier articles – Roland M. Jones, “Roosevelt Retains Corn Belt Interest,” New York Times, 21 Feb. 1932, p. E6; Henry F. Pringle, “Presidential Possibilities,” Nation, 27 Apr. 1932, p. 489. Frank Walsh had called the National War Labor Board “a new deal for labor,” and Gifford Pinchot had called for “a new deal” in his 1930 gubernatorial campaign. Stuart Chase, A New Deal (New York: Macmillan, 1933), 173, 192, 241. Robert B. Westbrook, “Tribune of the Technostructure: The Popular Economics of Stuart Chase,” American Quarterly 32 (1980), 387–408. NPP, 331–33; Leuchtenburg, Franklin Delano Roosevelt, 9. “Radio Address,” 30 Jul. 1932, PP&A I: 661–62; “Campaign Address,” Sioux City, 29 Sep. 1932, ibid., 760–61.

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Roosevelt gave his most significant speech of the campaign to the Commonwealth Club of San Francisco in September. Largely the work of Adolf Berle, it sought to challenge Hoover’s campaign theme of “individualism,” as well as the Jeffersonian–Brandeisian–Wilsonian bent of some of Roosevelt’s advisers. “In a word,” Berle told the governor, “it is necessary to do for this system what Bismarck did for the German system in 1880.”70 Roosevelt laid out a fanciful partisan version of American political history, in line with his earlier view of the Democratic party as the “bearer of liberalism and progress.” Roosevelt praised the Jeffersonian–Democratic vision that “government and economy exists to serve individual men and women,” as opposed to the Hamiltonian–Republican view of individuals as servants to an elite economic and political class. Roosevelt then skipped over the Civil War to declaim the Republicans’ promotion of economic development. This program created a class of “financial Titans” or “princes of property,” and now “the growing corporation, like the feudal baron of old,” threatened individual liberty. “A glance at the situation today only too clearly indicates that equality of opportunity as we have known it no longer exists.” He reiterated the overproduction–inequality economic view, particularly Berle’s depiction of an economy “dominated by some six hundred-odd corporations.”71 “Put plainly, we are steering a steady course toward economic oligarchy, if we are not there already.” The task of the federal government today, like that of the state-building monarchs of the early modern era, was to free the individual from the thrall of the robber barons.72 Such conditions called for “a re-appraisal of values.” The business plutocracy had done its work; the age of production had given way to an age of redistribution; “the day of enlightened administration has come.” Roosevelt called for “an economic declaration of rights, an economic constitutional order.” The Declaration of Independence had outlined the protection of certain rights, but “the task of statesmanship has always been the redefinition of these rights,” he said. He contrasted old rights and new. “Every man has a right to life; and this means he also has a right to make a comfortable living.” Here Roosevelt echoed TR’s New Nationalism speech, or Wilson’s academic work, with its typically progressive abandonment of the government-protected natural rights of the Declaration of Independence for a set of government-provided rights of economic security – what would later come to be called “entitlements.”73 Roosevelt 70

71

72 73

Berle to F.D.R., 15 Aug. 1932, in Navigating the Rapids, 1918–71: From the Papers of Adolf A. Berle, ed. Beatrice Bishop Berle and Travis Beal Jacobs (New York: Harcourt, 1973), 58. Adolf A. Berle and Gardiner C. Means, The Modern Corporation and Private Property (New York: Macmillan, 1939 [1932]); Gardiner C. Means, “The Growth of the Relative Importance of the Large Corporation in American Economic Life,” American Economic Review 21 (1931), 10–42. “Address,” San Francisco, 23 Sep. 1932, PP&A I: 742–56. Leuchtenburg, The F.D.R. Years, 19; Robert Eden, “On the Origins of the Regime of Pragmatic Liberalism: John Dewey, Adolf A. Berle, and FDR’s Commonwealth Club Address of 1932,”

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here echoed the progressive argument that concentrated economic power had begotten concentrated political power. “Robber baron” was no mere metaphor, for the new corporate entities wielded genuinely sovereign power.74 Though the speech attracted much contemporary attention, and later came to be celebrated as the clearest articulation of the New Deal to come, it played poorly in San Francisco. Perhaps the mostly businessman audience did not recognize its radicalism, or perhaps they did not like it. Progressives applauded it, though the nimble candidate soon turned in a conservative direction.75 Hoover saw a weakness to exploit, but he missed the point about Roosevelt’s repudiation of the country’s founding principles. Hoover claimed that the campaign was “a contest between two philosophies of government,” in which the Democrats “are proposing socalled new deals which would destroy the very foundations of our American system,” but he never articulated what those philosophies were. Rather, Hoover denounced the tone of pessimism in Roosevelt’s message. He called the Commonwealth Club Address “a counsel of despair for the future of America,” subordinating the political to the economic aspect of “American individualism.” Hoover said that “Expansion of government in business means that government in order to protect itself from the political consequences of its errors is driven irresistibly without peace to greater and greater control of the nation’s press and platform. Free speech does not live many hours after free industry and free commerce die.” Though Hoover failed to recognize the source of his argument, he claimed that the “old” rights of the Declaration would be threatened by the “new” rights of the New Deal.76 As economic prosperity had all but guaranteed Hoover’s triumph in 1928, so economic depression all but assured his defeat in 1932, regardless of how he framed the issues. Roosevelt did present one more opening for Hoover to exploit when, again like his cousin, he took on the judiciary. Late in the campaign, Roosevelt blamed the Depression on “the Republican party [that] was in complete control of all branches of the federal government – the executive, the

74

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76

Studies in American Political Development 7 (1993); Harvey C. Mansfield, Jr., America’s Constitutional Soul (Baltimore: Johns Hopkins University Press, 1991), 56; Charles R. Kesler, “The Public Philosophy of the New Freedom and the New Deal,” in The New Deal and Its Legacy: Critique and Reappraisal, ed. Robert Eden (New York: Greenwood, 1989), 155–66. Robert L. Hale, “Coercion and Distribution in a Supposedly Non-Coercive State,” Political Science Quarterly 38 (1923), 470–94; Morris R. Cohen, “Property and Sovereignty,” Cornell Law Quarterly 13 (1927), 8–30; John Dewey, Liberalism and Social Action (Amherst, NY: Prometheus, 2000 [1935]), 67, 83; Duxbury, Patterns of American Jurisprudence, 107; Duxbury, “Robert Hale and the Economy of Legal Force,” Modern Law Review 53 (1990), 421–44. Davis W. Houck, “FDR’s Commonwealth Club Address: Redefining Individualism, Adjudicating Greatness,” Rhetoric and Public Affairs 7 (2004), 262; Ritchie, Electing F.D.R., 140; Burns, Roosevelt, 142. “Campaign Speech,” New York, 31 Oct. 1932, PPHH II: 408–25. Roosevelt’s point was not pessimistic at all, but overly optimistic – an assumption that the problem of production had been solved, and that a new class of administrators could take economic abundance for granted.

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Senate, the House of Representatives and, I might add for good measure, the Supreme Court as well.”77 This statement betrayed a profound misunderstanding of nominal partisan affiliation of the judges and their jurisprudence. Of the three most progressive justices, two had been appointed by a Republican president (Stone and Cardozo), and two were nominal Republicans (Brandeis, until 1912, and Stone). The most reactionary justice (McReynolds) was a Democrat appointed by a Democrat. Another conservative justice (Butler) was a Democrat. Hoover noted that, like Harding and Taft, he had appointed Democrats. “The charge that the Supreme Court has been controlled by any political party is an atrocious one,” he said. “Does it disclose the Democratic candidate’s conception of the functions of the Supreme Court? Does he expect the Supreme Court to be subservient to him and his party,” he asked, and would he make appointments accordingly?78 Hoover called this swipe at the Court “the most revolutionary new deal, the most stupendous breaking of precedent, the most destructive undermining of the very safeguard of our form of government yet proposed by a political candidate.”79 Roosevelt recognized his misstep on this issue, and dropped it.80 The 1932 election indicated a fundamental shift in American partisan politics. The Democratic party would enjoy a run of fourteen consecutive years controlling both the executive and legislative branches, as the Republicans had from 1860 to 1874 and 1896–1910. But this was far from apparent at the time. Democrats benefited more from “mobilization” of hitherto disengaged citizens – mostly new urban immigrants, a process that began with the Smith campaign of 1928 – than from a “conversion” of Republican voters. Roosevelt’s campaign against a progressive had straddled the issues so deftly that nobody could call it a mandate for anything other than the repeal of prohibition. Democrats also benefited from the reapportionment that followed the 1930 census, which prohibitionists had prevented after the 1920 census. Though the Democrats’ victory was nationwide, the 1932 election also indicated a shift of political power from the Northeast and upper Midwest to the South and West.81 What the “New Deal” meant was anyone’s guess.

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“Campaign Address,” Baltimore, 25 Oct. 1932, PP&A I: 837; “Roosevelt Accused of ‘Slurring’ Court,” New York Times, 27 Oct. 1932, p. 1; “Judiciary,” Time, 7 Nov. 1932, p. 13. “Campaign Speech,” Indianapolis, 28 Oct. 1932, PPHH II: 390. “Campaign Speech,” New York, 31 Oct. 1932, p. 422. Ritchie, Electing F.D.R., 145. Kristi Andersen, The Creation of a Democratic Majority, 1928–36 (Chicago: University of Chicago Press, 1979), 17; Schwarz, Interregnum of Despair, 202.

part iv THE NEW DEAL

1933–1940

18 The Hundred Days

war equivalents The economic crisis that destroyed the Republicans in 1932 was intensified by another banking crisis between the election and the March 1933 inauguration. When Franklin D. Roosevelt took the oath of office on March 4, the nation’s banking system had frozen. The new president began his inaugural address by blaming the “rulers of the exchange of mankind’s goods . . . the unscrupulous money changers,” for the Depression. Using Louis Brandeis’s phrase, he called for an end to “speculation with other people’s money.” The restoration of the economy would require “treating the task as we would treat the emergency of a war,” with the American citizenry “a trained and loyal army willing to sacrifice for the good of a common discipline.” All would sacrifice for “a unity of duty hitherto evoked only in time of armed strife.” The president confidently maintained that “Our Constitution is so simple and so practical that it is possible always to meet extraordinary needs by change in emphasis and arrangement without loss of essential form.” He was ready to “ask Congress for the one remaining instrument to meet the crisis – broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.”1 Though the most memorable phrase of the speech (mostly written by Ray Moley) was that “we have nothing to fear but fear itself,” Roosevelt was clearly exploiting fear to maximize political power. Roosevelt desired the economic situation to be as desperate as possible upon his inauguration. Thus when the National Emergency Council later reported that the economic recovery had begun in 1932, he insisted that the date be changed to the month of his inauguration.2 He refused entreaties from the Hoover administration to coordinate 1 2

Inaugural Address, 4 Mar. 1933, PP&A II: 11–17. Davis W. Houck, “F.D.R.’s First Inaugural Address: Text, Context, and Reception,” Rhetoric and Public Affairs 5 (2002), 671; James MacGregor Burns, Roosevelt: The Lion and the Fox (New York: Harcourt, 1956), 268; Richard W. Steele, Propaganda in an Open Society: The Roosevelt Administration and the Media, 1933–41 (Westport, CT: Greenwood, 1985), 35.

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recovery efforts, particularly those that commited him to a balanced budget and to repudiate inflation. If fears that the new administration would pursue inflation exacerbated the banking crisis, so much the better.3 The martial tone of the inaugural suggested that Roosevelt appreciated Hobbes’s teaching that fear inclines men to give governments sovereign power.4 Roosevelt did act swiftly to deal with the banking crisis. As nearly all New Deal programs would be modeled on those of the First World War, his first act was to employ the Trading with the Enemy Act of 1917, which gave the president the power to control gold exports and enemy property, and which had never been repealed. Roosevelt used it to declare a nationwide “bank holiday,” suspending all bank operations until Congress could enact permanent legislation. Hoover had considered its use in the waning days of his administration, but his Attorney General, William Mitchell, advised against it, calling it “a mere shoestring.”5 Nevertheless, Hoover would have used it had Roosevelt assured him that he would endorse the move and get Congress to do so, but Roosevelt refused. His own Attorney General, Homer S. Cummings, advised him that the Act was sufficient.6 As one scholar has noted, the Trading with the Enemy Act authorized no such conduct, being “directed only at persons other than citizens of the United States.” The new president had “declared the American people to be the enemy.”7 Roosevelt called “the old war statute of 1917 . . . an exceedingly useful instrument.”8 Three days after the proclamation, Congress endorsed the president’s acts and gave him extended powers in the Emergency Banking Act. Enacted in hot haste and virtually sight-unseen, it was the first enactment of the “hundred days.” Congress amended the Trading with the Enemy Act to extend the president’s powers to U.S. citizens “during time of war or during any other period of national emergency declared by the President.”9 The Act also gave the federal government the power to reorganize and reopen the suspended banks, and allowed the Reconstruction Finance Corporation to purchase preferred stock in banks. Hoover had rejected such a proposal as socialistic; progressives disliked it as a bank bailout. By 1935, the 3

4 5

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8 9

Milton Friedman and Anna Jacobson Schwartz, The Great Contraction, 1929–33 (Princeton: Princeton University Press, 1965), 36. In the inaugural, Roosevelt promised “an adequate but sound currency.” Thomas Hobbes, Leviathan, ed. A. P. Martinich (Peterborough, ON: Broadview, 2002), 97. Francis Gloyd Awalt, “Recollections of the Banking Crisis in 1933,” Business History Review 43 (1969), 357. Miscellany, 5 Mar 1933, in F.D.R.: His Personal Letters, 1928–45, ed. Elliot Roosevelt, 4 vols. (New York: Kraus, 1970 [1950]), I: 333; “Origin of National Bank Holiday Edict,” Wall Street Journal, 10 Mar. 1933, p. 8; James S. Olson, Saving Capitalism: The Reconstruction Finance Corporation and the New Deal, 1933–40 (Princeton: Princeton University Press, 1988), 30. Roger I. Roots, “Government by Permanent Emergency: The Forgotten History of the New Deal Constitution,” Suffolk University Law Review 33 (2000), 277. The Act had constitutional problems even as applied to enemy aliens – E. M. B., “The Trading with the Enemy Act,” Yale Law Journal 35 (1926), 345–57. Address before the Governors’ Conference, 6 Mar. 1933, PP&A II: 18. 48 Stat. 1 (1933).

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RFC owned stock in half of American banks, totaling one-third of all bank capital, moving the center of American banking from Wall Street to Washington.10 Roosevelt next insisted that Congress meet the Democratic party’s campaign pledge to reduce federal spending. The day after Congress enacted the Emergency Banking Act, he told it that “For three long years the federal government has been on the road to bankruptcy,” with 5 billion dollars in deficits. “Too often in recent history liberal governments have been wrecked on rocks of loose fiscal policy. We must avoid this danger.”11 Congress delegated enormous powers to the president to reduce salaries and, especially, veterans benefits. The previous Congress had similarly given sweeping reorganization powers to the president, which could be overridden by a two-thirds vote in Congress. This was a remarkable inversion of governmental powers – not merely the delegation of legislative power to the executive, but the first “legislative veto.”12 Along with the Emergency Banking Act, this Economy Act raised alarms of presidential “dictatorship.” These died down as Congress returned to a more traditional legislative procedure.13 Congress provided more detailed and substantial budget cuts in the June 1933 Economy Act. Despite the heavy deficit spending to which the administration would resort, it never abandoned at least a moderate fiscal conservatism.14 Such budgetary concerns would place significant limits to the progress of reform in the 1930s, and the Economy Act’s failure to deal with the retirement of Supreme Court justices would have a significant impact on the New Deal. Lower-court judges could “retire,” retaining their status as judges, and thus be secure against salary reductions. Supreme Court justices could only “resign,” and their pensions were at the discretion of Congress. Justice Holmes had been granted a $20,000 annual pension when he resigned in 1932; Congress cut this in half later that year and then restored it in 1933. Two of the most conservative justices on the Court, Willis Van

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Olson, Saving Capitalism, 38; William E. Leuchtenburg, Franklin Delano Roosevelt and the New Deal, 1932–40 (New York: Harper & Row, 1963), 44; Milton Friedman and Anna Jacobson Schwartz, A Monetary History of the United States, 1867–1960 (Princeton: Princeton University Press, 1963), 427; Jordan A. Schwarz, The New Dealers: Power Politics in the Age of Roosevelt (New York: Knopf, 1993), 70. Message to Congress, 10 Mar. 1933, PP&A II: 49. James L. Sundquist, The Decline and Resurgence of Congress (Washington DC: Brookings Institution, 1981), 345; Houck, “F. D. R.’s First Inaugural Address,” 672; “The Presidency,” Time, 19 Jun. 1933, p. 11; Barry Dean Karl, Executive Reorganization and Reform in the New Deal: The Genesis of Administrative Management, 1900–39 (Chicago: University of Chicago Press, 1963), 190. Arthur Krock, “Roosevelt Gets Power of Dictator,” New York Times, 11 Mar. 1933, p. 7; “Not Dictatorship but Law,” ibid., 13 Mar. 1933, p. 12; Krock, “Capital Sees End of ‘Dictator’ Bills,” ibid., 16 Mar. 1933, p. 2. Julian E. Zelizer, “The Forgotten Legacy of the New Deal: Fiscal Conservatism and the Roosevelt Administration,” Presidential Studies Quarterly 30 (2000), 331–58.

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Devanter and George Sutherland, probably would have retired had Congress enacted secure pensions.15 One historian has claimed that Roosevelt’s early emergency acts were “more ruthlessly deflationary than anything Herbert Hoover had dared,” being more like “the program of the arch-conservative, du Pont wing of the Democratic party” than a “new deal.”16 But Roosevelt quickly moved in an inflationist direction via monetary policy. He told Woodrow Wilson’s eminence grise, Colonel House, “It is simply inevitable that we must inflate and though my banker friends may be horrified, I am still seeking an inflation which will not wholly be based on additional government debt.”17 He had to do so gingerly, for along with fiscal conservatism there remained a widespread belief, as Calvin Coolidge put it in 1922, that “inflation is repudiation.” In April 1933, he ordered all of the gold coin and bullion of the country to be surrendered at the price of $20.67 per ounce.18 The next month, Congress gave him the power to reduce the gold value of the dollar by up to 50 percent, to monetize silver, and to issue greenbacks – another remarkable delegation of legislative power to the President.19 But Roosevelt did none of these in 1933. In June, Congress cancelled the “gold clause” in public and private contracts, which lenders had used since the Civil War to guard against inflationary government manipulation of the currency.20 Finally, in January 1934, the Gold Reserve Act set the price of gold at $35 per ounce, a nearly 60 percent devaluation. This relieved the federal government of nearly $3 billion of its debt, and eliminated $200 billion of private debt.21 In May, Congress began to address long-term structural reform of the American economy. For farmers, it went beyond the McNary–Haugen proposals of the 1920s and adopted a more extensive Agricultural Adjustment Act (AAA). Its framers acted on the overproduction–underconsumption theory – but not in the sense that, for example, the auto industry presented, where auto workers could not purchase the very cars they produced because the employers kept profits high and wages low. American farmers clearly produced too much and, due to low incomes from depressed crop prices, did not consume enough. 15

16 17 18 19

20 21

Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court (Albany: State University of New York Press, 2003), 137; Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (New York: Fordham University Press, 2002), 34–35; Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), 15. Leuchtenburg, Franklin D. Roosevelt, 47. Roosevelt to Edward M. House, 5 Apr. 1933, in F.D.R.: His Personal Letters, I: 342. Ex. Ord. 6102, 5 Apr. 1933, PP&A II: 111. Memo of Alexander Sachs, 22 Mar. 1933, DHRP X: 83; Henry Pope to Louis Howe, 18 Apr. 1933, ibid., 118; C. M. Hester to Homer S. Cummings, 27 Apr. 1933, ibid., 203; Thomas Thatcher to Cummings, 26 Apr. 1933, ibid., 253. Friedman and Schwartz, Monetary History, 468. Esther Rogoff Taus, Central Banking Functions of the U.S. Treasury, 1789–1941 (New York: Russell & Russell, 1943), 208; Amity Shlaes, The Forgotten Man: A New History of the Great Depression (New York: HarperCollins, 2007), 158. This would be $48 billion of public debt and over $3.3 trillion in private debt today.

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The AAA, less a law than a piece of “enabling legislation,” delegated to the Secretary of Agriculture the power to use a variety of methods to aid farmers.22 The government paid farmers to reduce acreage, arranged and enforced marketing agreements to raise prices, and financed the program by a tax on food and fiber processors. No previous act tried so overtly to promote private interests – higher income for farmers – rather than public goods.23 Fundamentally, the Act attempted to establish enforceable agricultural cartels. Adlai Stevenson put it, “in essence we’re really creating gigantic trusts in all the food industries to raise prices and eliminate unfair competition thereby increasing returns to the farmers.”24 The previous administrations had also attempted this, but the AAA did so with the coercive power of government, rather than by the voluntary agreements that Hoover would only suggest and facilitate. Even so, the administration had a difficult time getting individual farmers to organize and adopt enforceable plans for crop reduction. The AAA was more than just interest-group or “class legislation”; it was an attempt to bring classes or interest groups into being. In time, these commodity-producing groups would secure for themselves the discretionary powers that the Agricultural Adjustment Administration originally exercised.25 The AAA relied overwhelmingly on the principle of emergency power – the term “emergency” appeared three times in the Act’s title, along with the term “extraordinary.”26 Its provisions would remain in effect until “the President finds and proclaims that the national emergency in relation to agriculture has ended.” It proved to be impossible to manage with so many millions of individual farmers. Its programs failed to reduce production or raise prices (the dustbowl droughts were more effective in this regard), and farmers themselves soon demanded a relaxation of controls. It also brought the defects of the underconsumption theory into high relief. When consumers ultimately had to pay more for food and clothing, how was the program anything more than a transfer of income from one group to another? Mordecai Ezekiel, the agronomist who helped draft the Act, said “It is time we call a halt to trying to help one sector of our economy by measures which depress the situation of other sectors,” but this is largely what the AAA did.27 To raise the price of hogs and cotton, the AAA oversaw the slaughter of 6 million piglets and the plowing under of one-third of

22

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25 26

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Anthony Badger, The New Deal: The Depression Years, 1933–40 (New York: Hill and Wang, 1989), 152. Gary D. Libecap, “The Great Depression and the Regulating State: Federal Government Regulation of Agriculture, 1884–1970,” in The Defining Moment: The Great Depression and the American Economy in the Twentieth Century, ed. Michael D. Bordo et al. (Chicago: University of Chicago Press, 1998), 182. Adlai to Ellen Stevenson, Jul. 1933, in The Papers of Adlai E. Stevenson, ed. Walter Johnson, 8 vols. (Boston: Little, Brown, 1972–79), I: 249. Badger, The New Deal, 158. 38 Stat. 31 (1933); Jane Perry Clark, “Emergencies and the Law,” Political Science Quarterly 49 (1934), 268–83. Comments on H.R. 13991, 14 Jan. 1933, DHRP VI: 146.

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the 1933 cotton crop. In commonsense terms, it appeared as if the New Deal was resolving the paradox of “poverty amidst plenty” by doing away with the plenty.28 The AAA served as a stopgap welfare program, keeping farmers on the land when there were no jobs for them in the cities. Government payments provided half of farm income in the Dakotas. When World War Two began, intense migration from farm to city resumed. War, like drought, did more to raise farm income than any deliberately devised agricultural policy. The process of cartelization could only succeed by reducing the number of farmers. The first Agricultural Adjustment Administrator, George Peek, did not share this view. He believed that more Americans should farm for a living, and that farmers should produce as much as possible. He was ousted from his position by the end of 1933. Most New Dealers believed that too many people were trying to make a living at farming, leading to too much competition and production. In industry, these were the “chiselers.” In agriculture, marginal tenants and sharecroppers, particularly Southern blacks, were the first to go.29

planning: the tennessee valley authority The Tennessee Valley Authority presented the most unique New Deal program, the only “hundred-days” legislation unconnected to the Depression emergency.30 Roosevelt, who had long been a public power advocate, not only revived Senator George Norris’s Muscle Shoals proposals, heretofore stymied by Republican vetoes, but took them further. TVA was the apex of the “planning” aspect of New Deal thought. The construction of a hydroelectric power plant to produce nitrates for First World War military needs grew into a scheme to shape the economic development of a region that included seven states. It encompassed a series of dams to make the Tennessee River navigable, to control its floods, to produce cheap fertilizer and, above all, to generate electric power for the region. Nobody denied that it was unvarnished socialism. As Roosevelt said of the 3.5 million inhabitants of the region, “We are trying to make a different type of citizen out of them.”31 And his “Brains Trust” adviser, Rexford Tugwell, described “a logical impossibility to have a planned economy . . . within our present constitutional and statutory structure.”32 In the end, TVA did not establish comprehensive social planning for the Tennessee 28

29

30

31 32

Richard Hofstadter, The American Political Tradition and the Men Who Made It (New York: Knopf, 1948), 434; Libecap, “The Great Depression and the Regulating State,” 193. Badger, The New Deal, 165; Leuchtenburg, Franklin D. Roosevelt, 256, 75; Theodore Saloutos, “New Deal Agricultural Policy: An Evaluation,” Journal of American History 61 (1974), 405; Paul Moreno, “An Ambivalent Legacy: Black Americans and the Political Economy of the New Deal,” Independent Review 6 (2002), 515–16. Richard Lowitt, “The T.V.A., 1933–45,” in TVA: Fifty Years of Grass-Roots Bureaucracy, ed. Erwin C. Hargrove and Paul K. Conkin (Urbana: University of Illinois Press, 1983), 35. Press Conference, Warm Springs, GA, 23 Nov. 1934, PP&A III: 467. R. G. Tugwell, “The Principle of Planning and the Institution of Laissez Faire,” American Economic Review, Supplement 22 (1932), 92.

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Valley, let alone for the entire country. The project foundered on conflicting impulses, and especially by the opposition of the public utility industry. The TVA claimed constitutional legitimacy in its title, “An act to improve the navigability” of the river and “to provide for the national defense.” But it also included a mandate “to provide for reforestation and the proper use of marginal lands in the Tennessee Valley; to provide for the agricultural and industrial development of said valley.” It did so by creating a remarkably independent corporation. Though the president appointed, and Congress could remove, its three directors, the corporation could devise its own plans without congressional authorization, controlled its own revenues, and was not bound by civil-service classification. It was a model of the progressive idea of administrative freedom from politics. The Act authorized the corporation “to sell the surplus power” that its dams generated, with preference to state and local governments, for domestic and farm use, while “use by industry shall be a secondary purpose.” It also empowered the TVA “to make studies, experiments, and determinations to promote the wider and better use of electric power.” The heart of the “planning” idea was a section authorizing the president “to make such surveys and general plans” that would “provide for the general welfare of the citizens” of the Valley, “all for the general purpose of fostering an orderly and proper physical, economic, and social development of said areas.”33 The reach of the statute might be great indeed. Utah Senator William King called it “so indefinite that it is difficult to determine its limitation . . . we are lost in uncertainty.” He said, “This legislation, if I properly interpret it, is a sort of cauldron into which we are pouring everything.” He noted that the bill “gives carte blanche authority to engage in every form of activity and experimentation.”34 The impetus for regional planning came from two of the first directors, Dr. Arthur Morgan and Dr. Harcourt Morgan. Arthur Morgan was a utopian in the tradition of Edward Bellamy and Jeremy Bentham. In good progressive fashion, he imagined that he could use the benefits of TVA to induce residents to give up drinking and smoking. Harcourt Morgan was an entomologist, who adhered to a “common mooring” theory that saw man as part of nature, and warned of the disastrous effects of economic development that did not respect the delicate balance of the natural world. Neither of them could get very far, however, being overawed by the third director, David Lilienthal, who pursued electrification only.35 But even this limited mission showed the shortcomings of federal development planning. The TVA did provide electric power to the region, even if it had to promote demand for it by subsidizing electrical 33

34

35

48 Stat. 58 (1933); Dean Hill Rivkin, “T.V.A., the Courts, and the Public Interest,” in T.V.A.: Fifty Years, 195. CR 77: 2634, quoted in Richard Wirtz, “The Legal Framework of the T.V.A.,” Tennessee Law Review 43 (1976). William U. Chandler, The Myth of T.V.A.: Conservation and Development in the Tennessee Valley, 1933–83 (Cambridge, MA: Ballinger, 1984), 25; Arthur M. Schlesinger, Jr., The Coming of the New Deal (Boston: Houghton Mifflin, 1959), 330; Thomas K. McCraw, T.V.A. and the Power Fight, 1933–40 (Philadelphia: J. B. Lippincott, 1971), 40.

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appliances for consumers. (An “Electric Home and Farm Authority” financed the sale of more than 1 million electric devices.) But it did not provide it more cheaply than private industry could – the argument that TVA would provide a “yardstick” by which to expose the exorbitant rates of private power was soon abandoned. Nor did it accelerate the economic development of the region. Its subsidies helped to maintain inefficient farmers, and industry grew less rapidly inside the region than outside of it. Moreover, it electrified at the cost of democratic control of public power, establishing an agency that answered to neither Congress nor the market. Nor could anyone long maintain the pretense that TVA was “above politics.” “What could be more political,” one commentator asked, “than for society to condemn the land of a farmer so that an industrialist can enjoy flood protection?”36 Ultimately, the administration valued the TVA less as a “yardstick” than as a birch-rod with which to belabor the politically unpopular public utilities that stood in its way.37

the national industrial recovery act The industrial recovery program was even more ambitious. Roosevelt had to fend off radical congressional proposals such as Alabama Senator Hugo Black’s bill to limit the work week to thirty hours. The Black bill would have prohibited the shipment of goods produced by labor beyond this limit, though few supporters explicitly repudiated the Supreme Court’s decisions in the child-labor cases.38 AFL president William Green expressed “reasonable grounds for hope that it would be held constitutional,” in light of new personnel and new economic conditions; scholars such as Edward S. Corwin concurred. But the counsel for the Association of Railway Executives maintained that the Court would reject it.39 Black noted that the child-labor cases had been decided by a 5–4 Court, and that “conditions today are different to conditions that existed when that case was decided. Laws must be interpreted to meet conditions existing when the law is interpreted.”40 The federation had drifted far from its putative “voluntarism” and “privatism;” Green now threatened a general strike if Congress did not enact it. “We ought to avoid such things as that,” Senator George Norris scolded him.41 Many members of Congress supported the Black

36

37 38

39

40 41

Chandler, Myth of T.V.A., 9, 89–95, 177–78; Olson, Saving Capitalism, 141; Lowitt, “The T.V.A.,”56. McCraw, T.V.A. and the Power Fight, 107. Thomas George Karis, “Congressional Behavior at Constitutional Frontiers” (Ph.D. diss., Columbia University, 1951), 214. “Warns of Strike for 30-Hour Week,” New York Times, 6 Jan. 1933, p. 14; Edward S. Corwin, Twilight of the Supreme Court: A History of Our Constitutional Theory (New Haven: Yale University Press, 1934), 44; “30-Hour Work Week Bill Argued,” New York Times, 19 Jan. 1933, p. 5. “30-Hour-Week Bill Is Sent to Senate,” New York Times, 31 Mar. 1933, p. 3. “Warns of Strike for 30-Hour Week”; Irving Bernstein, The New Deal Collective Bargaining Policy (Berkeley: University of California Press, 1950), 23–29.

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bill despite their belief, which the president shared, that it was unconstitutional.42 It is important to note, however, that when Roosevelt and other New Dealers expressed concerns that something was “unconstitutional,” they most often meant only that the federal courts were likely to declare it unconstitutional. They had taken to heart Chief Justice Hughes’s 1907 quip that “we live under a Constitution, but the Constitution is what the judges say it is.”43 Roosevelt never objected to legislation on his own grounds of constitutional interpretation – nothing, for example, comparable to Woodrow Wilson’s early objection to federal child-labor laws. To preempt the Black bill, the administration adopted a modified version of the “Swope Plan.” General Electric President Gerard Swope promoted a plan largely copied from the War Industries Board, proposing the suspension of antitrust laws to allow trade associations to regulate themselves. President Hoover rejected the plan as the promotion of “price-fixing . . . gigantic trusts” and essentially “fascist.”44 The Roosevelt administration accepted its basic outline, though with significant modifications. The National Industrial Recovery Act was an “emergency” enactment, limited to two years, or “sooner if the President shall by proclamation or Congress shall by joint resolution declare that the emergency” had ended. The Act permitted trade associations to write “codes of fair competition” for their industries, with the president’s approval. The president might also impose a code on an industry, or limit business to those to whom he issued licenses. Approved code industries would be exempt from the antitrust laws. The Act did not explicitly permit price-fixing, but practically invited it. The Act stipulated that the “codes are not designed to promote monopolies or to eliminate or oppress small enterprises.” It also provided a place for organized labor. Section 7(a) required that every code provide “that employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers.” It forbade “yellow dog contracts” and the requirement that employees join “company unions.” The act exempted farm organizations, being covered by the AAA.45 A.F.L. President Green called it a

42

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44

45

Peter H. Irons, The New Deal Lawyers (Princeton: Princeton University Press, 1982), 22; Leuchtenburg, Franklin D. Roosevelt, 55; Irving Bernstein, The New Deal Collective Bargaining Policy (Berkeley: University of California Press, 1950), 29. Speech before the Elmira [NY] Chamber of Commerce, 3 May 1907, in Addresses and Papers of Charles Evans Hughes (New York: Putnam’s, 1908), 139. Merlo J. Pusey, Charles Evans Hughes, 2 vols. (New York: Macmillan, 1951), I: 204. Pusey regards this expression as having been distorted into judicial subjectivism. Ellis W. Hawley, “Herbert Hoover and the Sherman Act, 1921–33: An Early Phase of a Continuing Issue,” Iowa Law Review 74 (1989), 1091; Kim McQuaid, “Competition, Cartelization and the Corporate Ethic: General Electric’s Leadership During the New Deal, 1933–40,” American Journal of Economics and Sociology 36 (1977), 417–18; Gerald D. Nash, “Experiments in Industrial Mobilization: W.I.B. and N.R.A.,” Mid-America 45 (1963), 157–74. 73 Stat. 195 (1933).

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“Magna Carta for labor,” and United Mine Workers President John L. Lewis likened it to the Emancipation Proclamation.46 The NIRA reflected the progressive belief that the government could regulate competition without promoting monopoly, or that it could promote the right kinds of monopolies – small business cartels, as well as cartels of farmers and workers, but not “big” industrial monopolies.47 FDR explained to Congress that the antitrust laws were meant to prevent giant monopolies, not to foster cutthroat competition.48 The Recovery Act represented a marriage of business price-fixing and labor organization. United Mine Workers chief John L. Lewis urged Congress to establish bilateral monopoly, giving labor the equivalent to the “closed shop to employers,” which organized labor had long promoted.49 Socialist party head Norman Thomas denounced the act as “a complete denial of the bases of the old capitalism . . . a capitalist syndicalism . . . in essence fascist.”50 Many Senate progressives, led by William Borah, opposed the Act. Robert Wagner of New York claimed that it was the only way to realize the original purpose of the antitrust laws. It also represented a colossal delegation of power to the president. Texas Representative Sam Rayburn said, “It is very true that under this bill . . . the President is made a dictator over industry for the time being, but it is a benign dictatorship. . .. For my part, I am proud to trust him and proud to follow him.”51 Roosevelt called the NIRA “the most important and far-reaching legislation ever enacted by the American Congress.”52 He appointed General Hugh S. Johnson as the National Recovery Administration chief, and labor lawyer Donald Richberg as its counsel. Its supporters genuinely envisioned what Roosevelt had called in the election campaign “a true concert of interests.”53 Nevertheless, the Act quickly disappointed the public, and organized labor in particular. Though the NRA was commonly depicted as having been “captured” by business, business opposed its extension and the NRA consistently supported organized labor.54 The NRA faced an impossible task of trying to reconcile irreconcilable policies – protecting small business but not promoting monopoly, restoring employment while promoting unions, raising producer prices and 46 47

48 49

50

51

52 53 54

Bernstein, New Deal Collective Bargaining Policy, 38. Donald R. Brand, Corporatism and the Rule of Law: A Study of the National Recovery Administration (Ithaca, NY: Cornell University Press, 1988), 117. Message to Congress, 17 May 1933, PP&A II: 202. Lewis L. Lorwin and Arthur Wubnig, Labor Relations Boards: The Regulation of Collective Bargaining Under the National Industrial Recovery Act (Washington: Brookings, 1935), 35; Daniel R. Ernst, “The Labor Exemption, 1908–14,” Iowa Law Review 74 (1989), 1154–55. James Q. Whitman, “Of Corporatism, Fascism, and the First New Deal,” American Journal of Comparative Law 39 (1991); Bellush, Failure of the NRA, 27. “Members Grow Restive,” New York Times, 8 Jun. 1933, p. 1; Rayburn quoted in Brand, Corporatism and the Rule of Law; CR 77 (25 May 1933), 4196–97. Statement, 16 Jun. 1933, PP&A II: 246. Address, St. Paul, 18 Apr. 1932, PP&A I: 632. Brand, Corporatism and the Rule of Law, 143, 271. The anti-labor argument suffuses Bellush, Failure of the NRA.

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increasing consumption. The Justice Department’s antitrust prosecutions ran into cartel plans approved by the recovery agencies. Meatpackers on reduced code hours could not slaughter the glut of condemned AAA piglets quickly enough.55 In March 1934, Roosevelt established a National Recovery Review Board to investigate complaints. Clarence Darrow headed it, and roundly condemned the administration. Roosevelt later complained that “the board proceeded rather as a prosecuting attorney to prove a case against big business than as an impartial review board.”56 NRA officials denounced Darrow as the mouthpiece of chiselers and sweatshop operators.57 Constitutional qualms made the administration reluctant to enforce its codes. The codes bound all businesses within the industry, whether a particular firm had approved of the code or not, with civil and criminal sanctions for noncompliance.58 General Johnson, a former US Army cavalry general, Moline Plow Company director, and FDR speechwriter, regarded the law as unconstitutional and unenforceable in court, but believed that enough public support could be inspired so that formal enforcement would be unnecessary.59 He had observed that the cognate AAA “violates directly no less than four specific constitutional inhibitions and is as shocking to common sense as it is to legal principle.”60 Johnson likened the NRA to the prohibition campaign. “To enforce it fully we had to have an aroused, militant, and almost unanimous opinion,” which he hoped to rally around the symbol of the Blue Eagle, a sign to consumers that a business complied with its NRA code.61 States had their own codes of fair competition, under their “little NIRA” programs. President Roosevelt complained that “whether out of ignorance or design” the press often attributed egregious enforcement of these state acts to the national program.62 He hoped that postponing a Court challenge would make the nationalcode system so entrenched that the Court would be reluctant to disturb it. But, as with Prohibition, weak enforcement only made the program unworkable and unpopular.63 It also sharpened opposition on constitutional grounds. As Walter Lippmann put it, “The resort to moral coercion was tantamount to a confession that the legal power to carry out this policy did not exist.”64 55

56 57 58

59

60 61 62

63

64

Hawley, New Deal and the Problem of Monopoly, 66, 123; Brand, Corporatism and the Rule of Law, 117; Lorwin and Wubnig, Labor Relations Boards, 53. Ex. Ord. 6632, 7 Mar. 1934, PP&A III: 136. Hawley, New Deal and the Problem of Monopoly, 96. Brand, Corporatism and the Rule of Law, 213; Sidney Fine, “The Ford Motor Company and the N.R.A.,” Business History Review 32 (1958), 357–58, 361. Bellush, Failure of the NRA, 36; Leuchtenburg, Franklin D. Roosevelt, 57; Charles E. Clark, “The Supreme Court and the N.R.A.,” New Republic, 12 Jun. 1935, p. 121. Johnson to Louis Howe, 24 Mar. 1933, DHRP VI: 385. Hugh S. Johnson, The Blue Eagle from Egg to Earth (New York: Doubleday, 1935), 255. Statement on Ex. Ord. 6723, 27 May 1934, PP&A III: 263; Statement of Gen. Hugh S. Johnson before the Senate Committee on Finance, 18 Apr. 1935, DHRP XXII: 95. Robert L. Stern, “The Commerce Clause and the National Economy, 1933–46,” Harvard Law Review 59 (1946), 656. Walter Lippmann, Interpretations, 1933–35 (New York: Macmillan, 1935), 98.

19 To the Brink

mixed signals The administration could not postpone judicial review of New Deal legislation forever. Many liberals had high hopes for the Court. The New Republic noted that the four conservatives – Sutherland, Butler, Van Devanter, and McReynolds, whom critics called the “four horsemen” – had become regular dissenters. Princeton professor Edward S. Corwin said that it was “not unlikely” that the Court would accept the NIRA. Harvard Law professor Zechariah Chafee noted some liberal trends since Hughes had become Chief Justice, but warned that those “labeling the two new justices as ‘liberals’ are likely to meet with some sharp disappointments.” Law professor Maurice Finkelstein predicted that the Court would uphold New Deal legislation. If it did not, he recommended that Congress and the president “utilize the power, which they always have in reserve, of ‘packing’ the court – that is to say, of appointing additional justices to secure a favorable majority.” A more conservative observer similarly noted suggestions that Roosevelt “might call a special session of Congress and with its consent, raise the number of Supreme Court justices from nine to eleven.”1 The first terms of Hughes’s Chief Justiceship fed liberal optimism, but hardly indicated that the Court had abandoned constitutional limits on government power. The 1933 Supreme Court had been unusually quiescent, particularly with regard to federal acts, as the Republican Congresses of the 1920s had enacted little controversial legislation. It voided no federal Act between 1929 and 1931, the longest period except for one (1888–92) since the Civil War. It struck down one Act the following year.2 In 1930, it unanimously upheld the 1

2

Joseph Percival Pollard, “Four New Dissenters,” New Republic, 2 Sep. 1931, pp. 61–64; Edward S. Corwin, Twilight of the Supreme Court: A History of Our Constitutional Theory (New Haven: Yale University Press, 1934), 44; Zechariah Chafee, Jr., “Liberal Trends in the Supreme Court,” Current History 35 (1931), 344; Maurice Finkelstein, “The Dilemma of the Supreme Court,” Nation, 18 Oct. 1933, pp. 428–30; Richard Lee Strout, “The New Deal and the Supreme Court,” North American Review 236 (1933), 489. Analysis and Interpretation of the Constitution, Sen. Doc. 108–17 (2002), 2117–32.

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Railway Labor Act of 1926, a progressive Republican measure. The Act compelled interstate railroads to bargain with representatives chosen by their employees, and prohibited them from interfering in that choice of representation. The Texas & New Orleans Railroad established a “company union,” and discharged members of the independent Brotherhood of Railway and Steamship Clerks. The brotherhood won an injunction against the company. The Court accepted the Act as a legitimate regulation of interstate commerce. Chief Justice Hughes, for a unanimous court, brushed aside as “inapplicable” precedents (Adair and Coppage) by which it had struck down federal and state laws against anti-union policies. He concluded that the new Act “does not interfere with the normal exercise of the right of the carrier to select its employees or to discharge them.”3 It was difficult to avoid the conclusion that the Court had overruled Adair and Coppage without admitting it, and struck a serious blow to the principle of liberty of contract. Reconciliation depended upon the unique position of railroads in interstate commerce, which might preserve liberty of contract in other industries.4 The Court revived liberty of contract two years later when it struck down an Oklahoma law that prohibited the manufacturing of ice without a license. The Act resembled a myriad of competition-limiting, cartel-promoting policies in response to the Depression. Traditionally, courts subjected “natural monopolies” to more government regulation than competitive industries. But, Justice Sutherland wrote, “the control here asserted does not protect against monopoly, but tends to foster it. The aim is not to encourage competition, but to prevent it.”5 Justice Brandeis, dissenting with Justice Holmes, admitted this. Defending his cherished principle of “regulated competition,” Brandeis praised the Oklahoma legislature’s recognition that competition could harm the community, and presented an array of the “facts” to conclude that it ought to promote a regulated monopoly.6 In keeping with the underconsumption–overproduction theory of the depression, he noted that “The economic emergencies of the past were incidents of scarcity,” whereas now they were those of overproduction, and argued that the Depression was the result of “failure to distribute widely the profits of industry.” Calling the depression “an emergency more serious than war,” Brandeis urged the Court to permit the widest possible experimentation by the states. “It is one of the happy incidents of the federal system that a single 3

4

5 6

Texas & New Orleans Railroad Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548 (1930), 570–71. Justice McReynolds did not participate in the decision. Edward Berman, “The Supreme Court Interprets the Railway Labor Act,” American Economic Review 20 (1930), 630–32; National Lawyers Committee of the American Liberty League, Report on the Constitutionality of the National Labor Relations Act (Pittsburgh: Smith, 1935), 61; Robert L. Stern, “The Commerce Clause and the National Economy, 1933–46,” Harvard Law Review 59 (1946), 650. It is notable that in 1915 Hughes had made an equally strained effort to distinguish Coppage from Adair. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), 279. Ibid., 282. For example, “The mean normal temperature in the State from May to September is 76.4 degrees.”

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courageous state may, if its citizens choose, serve as a laboratory.”7 Justice Sutherland pointed out “certain essentials of liberty with which the state is not entitled to dispense in the interest of experiments.” Recent decisions protecting religious minorities and First Amendment rights confirmed this, and occupational freedom “is no less entitled to protection.”8 After the due process decisions of the 1920s, and in light of the far-fetched argument that ice-making was a public utility, New State Ice seemed to be an easy decision, with no indication that it would be the last time that the Supreme Court would overturn a state economic regulation on due process grounds.9 The Court extended its line of non-economic due process jurisprudence later that year in Powell v. Alabama, one of the “Scottsboro boys” cases. An Alabama court sentenced nine black defendants to death for the rape of two white women by a process that was but a slight improvement on the common method of lynching.10 Justice Sutherland held that the denial of counsel made a fair trial impossible. The Court did not “incorporate” the Sixth Amendment, but did insist that “the right involved is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’” Such fundamental rights applied “not because those rights are enumerated in the first eight amendments, but because they are of such a nature that they are included in the conception of due process of law.”11 Justices Butler and McReynolds dissented, disputing the notion that the defendants had been denied the right to counsel, and because they believed the majority had imposed an obligation to provide counsel in the case.12 Liberals applauded this extension of due process.13 State regulators cheered when the Supreme Court upheld a New York pricecontrol law to prevent the “overproduction” of milk. The legislature reasoned that it would raise the income of dairy farmers, which would enable them to purchase more industrial products. But its constitutional justification rested upon the police power of the state to protect the public against an unstable milk supply – an oversupply tending to spoliation and contamination. The Act declared the dairy industry to be “affected with a public interest.” After the commission set a minimum retail price of nine cents per quart, Leo Nebbia, a Rochester grocer, was convicted of selling two quarts of milk and a loaf of bread for eighteen cents. The Supreme Court upheld the act in a 5–4 decision. Justice Roberts noted that New York had regulated only the railroads more than the dairy industry, a Munn-like argument that being regulated made an industry a public utility. He conceded that few would normally consider dairy farming a 7 8 9 10

11 12 13

Ibid., 305–07, 311. Ibid., 279–80. The one exception was Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77 (1938). Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 120. Powell v. Alabama, 287 U.S. 45 (1932), 67, quoting Hebert v. Louisiana, 272 U.S. 312 (1926). Ibid., 74, 76. The Court did this six years later in Johnson v. Zerbst, 304 U.S. 458 (1938). New Republic, 16 Nov. 1932, p. 3.

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public utility, and that it was not a natural or actual monopoly. But Roberts maintained that “there is no closed class or category of business affected with a public interest” requiring courts to judge the necessity of regulation according to circumstances. The majority accepted the legislative determination that the circumstances justified this regulation.14 Justice McReynolds condemned the Act as “not regulation, but management, control, dictation – it amounts to the deprivation of the fundamental right which one has to conduct his own affairs honestly and along customary lines.” Moreover, he considered it “wholly unreasonable” to expect that the fixing of retail prices would actually relieve the distress of dairy farmers.15 The impact of the decision would depend on how far the dairy industry justification would extend to other industries. Could it apply to other farm products – shoes, clothing, or even labor, as McReynolds feared – or was the dairy industry, like the railroad industry, unique?16 The Court lowered the constitutional threshold when it upheld a Minnesota mortgage-revision law. The Great Depression added to the woes of a demoralized agricultural sector, and state governments responded with debtor-relief laws. Farm woes derived from the First World War, when the federal government had stimulated overproduction of farm products, leaving farmers with heavy mortgage debt. Minnesota had enacted state-subsidized debt restructuring programs during the 1920s, which cost almost $100 million but saved few farms, only postponing liquidation.17 Distress mounted after 1929, and mob action led Governor Floyd Olson to suspend foreclosures in February 1933 until the legislature could respond. Though historians have exaggerated the threat of violent popular action, some twenty-five states enacted mortgage moratoria.18 The Minnesota law permitted mortgagors to forestall foreclosure if they paid a rental on the mortgaged property for two years. The Act presented an “easy case,” for nobody disputed that it impaired the obligation of contracts.19 The law strikingly resembled those that the states enacted in years before 1787, which the contract clause meant to prevent. But Chief Justice Hughes upheld the law, noting cryptically that “While emergency does not create power, emergency may furnish the occasion for the exercise of 14 15 16

17

18

19

Nebbia v. New York, 291 U.S. 502 (1934), 521, 525, 536. Ibid., 554–55, 557. Morris Duane, “Nebbia v. People: A Milestone,” University of Pennsylvania Law Review 82 (1934), 619. Some lower courts did apply the decision narrowly – David A. Pepper, “Against Legalism: Rebutting an Anachronistic Account of 1937,” Marquette Law Review 82 (1998), 66, 100; Barry Cushman, “Lost Fidelities,” William and Mary Law Review 41 (1999), 107–28. John Earl Haynes, “Applied History or Propaganda? The Influence of History on Farm Credit Legislation in Minnesota,” Public Historian 19 (1988), 21–33. Haynes calculates the cost of the programs at what would be $500 million to $700 million in 2010 dollars. Russell W. Fridley, “Public Policy and Minnesota’s Economy: A Historical Overview,” Minnesota History 44 (1975), 183; Lee J. Alston, “Farm Moratorium Legislation: A Lesson from the Past,” American Economic Review 74 (1984), 447; see appellees’ brief, Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934). Charles A. Bieneman, “Legal Interpretation and a Constitutional Case: Home Building & Loan Association v. Blaisdell,” Michigan Law Review 90 (1992), 2534, 2541.

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power.” The war power “is not created by the emergency of war, but it is a power given to meet that emergency.” But the Constitution contained no provision giving a state the power “to declare the equivalent of war” or to combat “emergencies greater than that of war,” as progressives often characterized the Depression. In this case, Minnesota clearly violated an express limitation on the police power of the states. Hughes likened the Act to state suspension of contractual obligations in cases of fire, flood, and other natural disasters. He expressed a “living constitution” interpretation. He asserted “the claim that what the Constitution meant at the time of its adoption it means today,” or that “the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them . . . carries its own refutation.” Employing a characteristically progressive organic metaphor, he quoted Justice Holmes’s claim that the Framers had “called into life a being the evolution and development of which could not have been foreseen completely by the most gifted of its begetters.”20 But he omitted Stone’s Beardian observation that “the framers of the Constitution undoubtedly had legislation of this type in mind. But the framers represented a class, and the Constitution itself was submitted only to conventions which were chosen by an electorate limited by heavy property qualifications.”21 Hughes had tossed an easy target for Justice Sutherland, for it is fair to say that “Blaisdell was wrongly decided under any theory of interpretation.”22 The Constitution could not admit two “distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another.” The long history of debtor-relief legislation showed that the contract clause intended “to foreclose state action impairing the obligation of contracts primarily and especially in respect of such action aimed at giving relief to debtors in time of emergency.” Analyzing Hughes’s claim that “while emergency does not create power, it may furnish the occasion for the exercise of power,” Sutherland observed that it merely said “the same thing by the use of another set of words, with the effect of affirming that which has just been denied.” Time, place or circumstance mattered not. “The Minnesota statute either impairs the obligation of contracts or it does not,” Sutherland stated. “If it does not, the occasion to which it relates becomes immaterial.” He concluded that “If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.”23 Blaisdell suggested that the Court had abandoned the Constitution. It presented a case “in which a court, striving to reach a desired result, ignored the 20 21

22 23

Home Building & Loan Association v. Blaisdell, 425, 442–44. Memo, 4 Jan. 1934, in Harlan F. Stone Papers, box 60, LC; Samuel R. Olken, “Charles Evans Hughes and the Blaisdell Decision: A Historical Study of Contract Clause Jurisprudence,” Oregon Law Review 72 (1993), 585. Bieneman, “Legal Interpretation,” 2535. Home Building & Loan Association v. Blaisdell, 448–49, 453, 465, 473, 483.

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law.”24 But progressives complained that the Court had not gone far enough. Edward S. Corwin observed that “the Constitution must mean different things at different times if it is to mean what is sensible, applicable, feasible.” Sutherland’s opinion he dismissed with the ad hominen, class-bias pose so casually assumed by progressives: Sutherland “craves a Constitution that pinches – the other fellow!”25

first skirmishes The Court’s first review of a New Deal statute concerned an NIRA petroleum provision. The oil industry faced problems of overproduction and low prices like those of the agriculture industry. Although large producers had seen the value of collusion during the First World War, demand during the 1920s exceeded supply, and industrial leaders enjoyed large profits and preferred to be left alone. Policy-makers assumed a critical shortage of oil and gas, but the discovery of enormous oil deposits in eastern Texas in 1930 reversed this attitude, and petroleum suddenly became a “sick industry.”26 The common law gave landowners the right to everything above and below the surface, to “the center of the earth,” as Blackstone put it. This rule worked well enough with solid minerals, but with fugacious liquid and gaseous ones, a landowner could tap into a pool that extended under the land of many other owners. Nineteenth-century judges permitted this by applying the “rule of capture,” which permitted landowners to lure their neighbors’ wild game onto their own property – “making well bores, in effect, hydrocarbon decoys.” By the end of the century, they had amended this by a doctrine of “correlative rights,” which allowed capture only it if did not “annihilate the rights of the remainder to their just distribution.”27 Rather than letting the most efficient producers consolidate the ownership of the common pools, states began to regulate oil and gas extraction, preserving small producers under the principle of “conservation.”28 Producers used these laws to limit production and raise prices, finally obtaining mandatory proration laws that expressly set the maximum amount that owners could extract. A federal district court held Oklahoma’s proration law unconstitutional in 1927, and threw the 24

25

26

27

28

Bieneman, “Legal Interpretation,” 2535; Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford, 1998). Edward S. Corwin, “Moratorium over Minnesota,” University of Pennsylvania Law Review 82 (1934), 311–16. Norman Nordhauser, “Origins of Federal Oil Regulation in the 1920s,” Business History Review 47 (1973), 53–71; Morton Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–33 (Cambridge, MA: Harvard University Press, 1990), 168–70; James P. Hart, “Oil, the Courts, and the Railroad Commission,” Southwestern Historical Quarterly 44 (1941), 303–20. Robert L. Bradley, Jr., Oil, Gas and Government: The U.S. Experience, 2 vols. (Lanham, MD: Rowman & Littlefield, 1996), I: 60–70. Ibid., 79, 116; Hart, “Oil, the Courts, and the Railroad Commission,” 311, 314; William J. Kemnitzer, Rebirth of Monopoly: A Critical Analysis of Economic Conduct in the Petroleum Industry of the United States (New York: Harper, 1938), 49.

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state into a furor. Governor “Alfalfa Bill” Murray imposed martial law and prohibited all oil production. Texas took similar extreme measures. The Supreme Court in 1932 upheld state power to prorate, but struck down such arbitrary means of enforcement.29 Section 9(c) of the NIRA empowered the president to prohibit the interstate shipment of “hot oil” – oil produced in excess of state quotas. The petroleum industry also contrived a code of fair competition, which inadvertently omitted the “hot oil” prohibition. Unable to rule on the code itself, the Supreme Court took up the question of the delegation of legislative power, heretofore only treated in passing. Delegation presented two of the most fundamental constitutional principles – of popular sovereignty and the separation of powers. As John Locke put it, “The legislative [body] cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.” The omission of the “hot oil” provision in the code by which the company was being prosecuted illustrated the related principle that the legislature must act by “standing laws, promulgated and known to the people, and not by extemporary decrees.”30 Thus, Article I of the Constitution simply states, “All legislative powers herein granted shall be vested in a Congress of the United States.” And as Madison noted in Federalist 47, “The accumulation of all powers, legislative, executive, and judicial, in the same hands . . . may justly be pronounced the very definition of tyranny.”31 A certain amount of discretion was always necessary when enforcing the law, but here the legislature had provided no standards to guide executive action. “Section 9(c) does not state whether, or in what circumstances or under what conditions, the President is to prohibit the transportation of petroleum . . . in excess of the state’s permission.” Though it could not precisely define the boundary between legitimate and illegitimate delegation, the Court was sure that this act was over the line. Hughes noted that every time the Court had upheld delegations, it did so while recognizing “that there are limits of delegation which there is no constitutional authority to transcend,” and pointed out that most previously upheld delegations had to do with foreign relations.32 Only Justice Cardozo dissented, stressing the economic emergency, and chided the majority for turning the separation of powers into “a doctrinaire concept to be made use of with pedantic rigor.”33 This decision only slightly rebuked the administration. Though the Court emphatically asserted fundamental constitutional principles, it had little practical impact. As the Wall Street Journal observed, “It appears to follow that

29

30

31 32 33

Donald R. Brand, Corporatism and the Rule of Law: A Study of the National Recovery Administration (Ithaca, NY: Cornell University Press, 1988), 180. John Locke, Second Treatise of Government, ed. C. B. Macpherson (Indianapolis: Hackett, 1980 [1690]), 74–75, 68, 71. Federalist 47. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), 415, 421, 430, 422. Ibid., 440.

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Congress could rather simply legalize the power over interstate oil” by clearer statutory language.34 Congress quickly did so, and the Supreme Court upheld it, unanimously, four years later.35 Major oil-producing states also adopted interstate compacts to limit production, which Congress approved in August 1935. The state production quotas themselves posed serious constitutional problems. The Court had upheld these unanimously in 1932, and by the time they were challenged as arbitrary in 1940, only Justices Hughes, Roberts, and McReynolds remained to defend individual rights on due process grounds.36 The Court capitulated in the gold-clause cases the next month. These cases attracted global attention from financial as well as popular audiences. In an unprecedented step, the administration sent the Attorney General to argue the cases personally, and the Court expedited its decision.37 The Court considered two Acts and three issues in these cases. A joint resolution annulled provisions to pay in gold in private contracts as “contrary to public policy.” The Gold Reserve Act of January 1934 reduced the gold–dollar ratio from $20.67 per ounce to $35 per ounce, approximately a 60 percent devaluation. One suit contended that the government dollar-devaluation could not override private contracts to pay in gold or its pre-devaluation equivalent. Another insisted that holders of gold certificates could demand gold-value payment. A third demanded that the federal government pay principal and interest in gold on bonds that it had promised to pay in gold.38 Gold clauses in private contracts were the last unsettled issue of greenback-era jurisprudence. Citizens wrote them into contracts as insurance against the kind of inflation that the Civil War had produced and that the New Deal now repeated. The Supreme Court had upheld them in 1869. Now the Court overturned this last obstacle to plenary federal monetary power. Chief Justice Hughes decided that the private gold clauses “constitute an actual interference with the monetary policy of the Congress in the light of its broad power to determine that policy.”39 Hughes evaded the problem of the government’s own obligations in the goldcertificate case, in which federal notes certified “that there has been deposited in the Treasury of the United States of America one thousand dollars in gold coin payable to the bearer on demand.” Hughes claimed that “These gold certificates were currency . . . They were not contracts for a certain quantity of gold as a 34

35

36 37

38 39

“The Constitution Scores,” Wall Street Journal, 9 Jan. 1935, p. 4; Michael S. Greve, The UpsideDown Constitution (Cambridge, MA: Harvard, 2012), 246, 314. Barry Cushman, “The Hughes Court and Constitutional Consultation,” Journal of Supreme Court History 1 (1998), 86. The Court had similarly upheld a Webb–Kenyon prohibition of the importation of convict-made goods into states that outlawed convict labor – Kentucky Whip & Collar Co. v. Illinois Central RR, 299 U.S. 334 (1937). Hart, “Oil, the Courts, and the Railroad Commission,” 316. David Glick, “Conditional Strategic Retreat: The Court’s Concession in the 1935 Gold Clause Cases,” Journal of Politics 71 (2009), 805–06. See Appendix B. Norman v. Baltimore & Ohio R.R. Co., 294 U.S. 240 (1935), 311; Gerald T. Dunne, Monetary Decisions of the Supreme Court (New Brunswick, NJ: Rutgers, 1960), 98.

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commodity. They called for dollars, not bullion.” Moreover, the plaintiff had demanded payment two weeks before Congress devalued the dollar, and so had not “sustained any actual loss.”40 But Hughes could not avoid the issue in the case of the government’s Liberty Loan bonds, which read, “The principal and interest hereof are payable in United States gold coin of the present standard of value.” Hughes conceded that the government must fulfill its contractual obligations, and that the joint resolution, “in so far as it attempted to override the obligation created by the bond in suit, went beyond congressional power.” But he quickly reversed himself saying that “Because the government is not at liberty to alter or repudiate its obligations, it does not follow that the claim advanced by plaintiff should be sustained.” His claim, for 16,931 devalued dollars on a $10,000 gold bond, would enrich rather than compensate him. Hughes came to the outrageous conclusion that, not having shown any loss of purchasing power, “the amount which he demands would appear to constitute not a recoupment of loss in any proper sense but an unjustified enrichment.”41 Since the bondholder was unable either to hold or sell the gold for which he was suing, no court could properly estimate that purchasing power. The federal government’s creditors were entitled to their pound of flesh, but only if they shed no blood attaining it. That creditors had suffered a loss was obvious. Devaluation, like all debtorrelief acts, tried to shift economic burdens from one class onto another. Justice Stone concurred in the result, but blushed to accept its reasoning, a sophistical repudiation of “the solemn promise of bonds of the Untied States.” He called it “unnecessary, and I think undesirable” to hold that there was a superior obligation in the government’s own contracts. Should the government re-monetize gold, and thus make purchasing-power losses calculable, suits like this one might succeed.42 Justice McReynolds wrote the opinion for the four dissenters. Departing from his text, he said, “The Constitution is gone!”43 His written opinion was just as vociferous, condemning “confiscation of property rights and repudiation of national obligations” and “repudiation and spoliation of citizens.” He claimed that “under the guise of pursuing a monetary policy, Congress really has inaugurated a plan primarily designed to destroy private obligations, repudiate national debts, and drive into the Treasury all gold within the country, in exchange for inconvertible promises to pay, of much less value.” Its acts were “plain usurpation, arbitrary and oppressive,” unconnected to any legitimate enumerated power. “Congress brought about the conditions in respect of gold which existed when the obligation matured,” and realized a gain of $2.8 billion.

40 41 42 43

Nortz v. United States, 294 U.S. 317 (1935), 326–27. Perry v. United States, 294 U.S. 330 (1935), 354, 358. See Appendix B. Ibid., 359. Ultimately, Congress withdrew the right to sue in such cases. Arthur Krock, “Congress Is Censured,” New York Times, 19 Feb. 1935, p. 14; “Constitution Gone, Says M’Reynolds,” ibid., p. 1; James E. Bond, I Dissent: The Legacy of Chief [sic] Justice James Clark McReynolds (Fairfax, VA: George Mason University Press, 1992), 92.

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“Loss of reputation for honorable dealing will bring us unending humiliation; the impending legal and moral chaos is appalling.”44 Few doubt that the majority had caved in to political pressure in this decision. In private correspondence, Hughes and Brandeis deplored the repudiation as much as Stone had in his concurrence.45 Brandeis called the gold policy “terrifying in its implications.” Echoing McReynolds, he wrote that the government had deliberately repudiated “its own solemn obligations, entered into freely in contemplation of the contingency which has arisen and for the purpose of dealing with it.” He praised McReynolds’s dissent as “really impressive; better than anything I’ve heard from him.”46 The Nation (under its NRA Blue Eagle decal) expressed surprise at the result, but lamented that the Court had not made its decision “frankly on social rather than merely legal considerations.” It concluded that “the administration has little to fear regarding the remainder of New Deal legislation,” and counseled liberals in Congress to act more boldly.47 The president had been prepared to defy the Court had it ruled against the government. He wrote to Joseph Kennedy that he was gratified that “the Supreme Court has at last definitely put human values ahead of the ‘pound of flesh’ called for by a contract.” An adverse decision would have cost the federal government $9 billion, he reckoned. In other words, it would have spread inflation-repudiation among the entire population rather than concentrating it on government creditors.48 As Brandeis noted, “If the government wished to extricate itself from the assumed emergency, taxation would have afforded an honorable way out.”49 What might have occurred had Hughes given Roosevelt the opportunity to confront the Court straightforwardly in 1935? The Justice Department was prepared for an adverse decision with proposals to limit the jurisdiction of the Court or to expand its membership.50 Roosevelt could have made a constitutionalist argument against judicial supremacy as Lincoln had after Dred Scott. He might have explained the difference between disputing the Court’s interpretation of constitutional limits and the denial that the Constitution imposed any enforceable limits at all. Court-packing was already being considered in Congress in anticipation of an adverse decision.51 Congress might also have 44 45 46

47 48

49 50

51

Perry v. United States, 361–62, 369, 375, 377, 381. Glick, “Conditional Strategic Retreat,” 811. Brandeis to Felix Frankfurter, 13 Jun. 1933 and 24 Feb. 1935, in “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter, ed. Melvin I. Urofsky and David W. Levy (Norman: University of Oklahoma Press, 1991), 523, 562. Nation, 27 Feb. 1935, p. 1. FDR to Joseph P. Kennedy, 19 Feb. 1935, in F.D.R.: His Personal Letters, 1928–45, ed. Elliot Roosevelt, 4 vols. (New York: Kraus, 1970 [1950]), I: 455. The letter was soon leaked to Arthur Krock of the New York Times. Brandeis to Felix Frankfurter, 13 Jun. 1933. Harold L. Ickes, The Secret Diary of Harold L. Ickes: The First Thousand Days, 1933–36 (New York: Simon & Schuster, 1953), 274; Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War (New York: Fordham University Press, 2002), 54. “Capital Debates Gold Issue,” New York Times, 13 Jan. 1935, p. 1.

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revived progressive schemes such as requiring a supermajority or unanimity to overturn legislation. It might have limited the Court’s appellate jurisdiction, as it had in 1869 to protect its Reconstruction policy. This would have left a variety of rules at the district and appellate levels, probably producing some “enrichment” for creditors, but more likely producing settling and discounting, with no extraordinary addition to the federal debt. This outcome would have resembled that of the railroad bond cases of the late nineteenth century. Congress took a final step to preclude any further gold-clause suits when it exercised its sovereign power and declared itself immune to suits on the question.52 Liberals’ hopes for a quiescent Court began to weaken in May 1935, when it overturned the Railroad Retirement Act of 1934. Congress imposed a pension plan on all railroads, based on joint employer–employee contributions with a 2:1 ratio. It claimed that the retirement of superannuated employees would improve safety and efficiency. Justice Roberts for a 5–4 majority held that Congress had exceeded its power to regulate interstate commerce. Certain provisions of the law, such as providing pensions equally to former employees who had retired in good standing, quit for other jobs, or had been fired for cause, were “arbitrary in the last degree.” The Act transferred property from railroad companies to railroad workers, and also transferred property from some railroads to others by treating all the companies as one employer. Both features violated due process of law.53 Furthermore, ICC data belied any correlation of age and safety. Chief Justice Hughes wrote for the four dissenters, principally objecting that the majority had overturned the entire statute because of certain admittedly objectionable features, and that it had denied any congressional power to provide railroad pensions at all. He found it hard to grasp why Congress could adopt worker’s compensation laws but not pensions for the railroad industry.54 Given the Court’s long tradition of regarding railroads as a special case, where Congress had an unusually ample power to regulate, Hughes’s difficulty here was understandable. Though hardly of the magnitude of the gold-clause cases, affecting the financial structure of the nation and even the world, the railroad retirement decision provoked serious political reaction. Speculation especially concerned the political motives behind Roberts’s defection to the conservative bloc.55 Attorney General Homer Cummings warned the president that “apparently there are at least four justices who are against any attempt to use the power of the federal government for bettering general conditions,” and made the necessity of amending the Constitution more urgent.56 52 53 54 55

56

Message to Congress, 27 Jun. 1935, PP&A IV: 287. Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935), 349–50, 360. Ibid., 374, 389, 383. Richard A. Maidment, The Judicial Response to the New Deal: The U.S. Supreme Court and Economic Regulation, 1934–36 (Manchester, UK: Manchester University Press, 1991), 78; William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 51. Cummings to Roosevelt, 7 May 1935, in Selected Papers of Homer Cummings, ed. Carl B. Swisher (New York: Scribner’s, 1939), 130.

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black monday The dam finally burst on May 27 – “Black Monday,” as New Dealers came to call it. Schechter v. U.S., in which the Court struck down the NIRA, led the way. After long avoiding penal enforcement, the administration ended up in a ridiculous posture, defending the Recovery Act in a trivial case. The Schechter brothers ran a small kosher slaughtering business in Brooklyn, and were accused of violating the live-poultry code. One charge involved selling “an unfit chicken,” which led to the popular “Sick Chicken Case” moniker. Even more revealing was the code’s prohibition of “straight killing” (more accurately, “straight selling”), which forbad sellers to allow customers to choose particular chickens, forcing them to accept whatever fowls occupied a coop or half-coop. Sustained laughter punctuated the oral argument as the Justices considered the implications of such rules.57 Chief Justice Hughes for a unanimous Court invalidated the NIRA. Like the “hot oil” provision, the entire Act unconstitutionally delegated legislative powers to the president, who in turn delegated them to private interest groups. “Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress,” Hughes wrote. The act “supplies no standards for any trade, industry or activity . . .. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them.”58 Moreover, the Schechters’s business was entirely intrastate, without any semblance of a “direct effect” on interstate commerce. Hughes noted that the distinction was “essential to the maintenance of our constitutional system”; without it, there would be no limits to Congress’s legislative power.59 With these fatal objections, the Court did not need to consider whether the Act also violated due process. Even Justice Cardozo concurred, calling the Act “delegation running riot,” and one that threatened “an end to our federal system.”60 The Court also unanimously struck down the Frazier–Lemke bankruptcy act. Like the Minnesota mortgage act, this allowed mortgagors to maintain possession of their property, but also reduced the amount of the debt in line with the diminished value of the property. Justice Brandeis held that the act took property from mortgagees without compensation, and thus violated the Fifth Amendment.61 This decision could hardly have surprised the administration. Roosevelt had conceded that this Act, like the Railroad Retirement Act, was “in some respects loosely worded and will require amendment at the next session of Congress.”62 While the Act was being drafted, he told his press secretary that “if 57

58 59 60 61 62

Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994), 85; “High Court Laughs in Schechter Case,” New York Times, 4 May 1935, p. 4. Ibid., 541. Schechter v. U.S., 295 U.S. 495 (1935), 538, 541, 548. Ibid., 553–54. Louisville Joint Stock Land Bank v. Radford, 291 U.S. 555 (1935). Statements, 30 Jun. 1934, PP&A III: 329, 332.

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this type of wild legislation passes, the responsibility for wrecking recovery will be squarely on the Congress, and I will not hesitate to say so in plain language.”63 But Roosevelt took umbrage when the Court held that he did not have the power to remove members of independent regulatory commissions. Roosevelt had tried to persuade William Humphrey, a Hoover appointee on the Federal Trade Commission, to resign, as he was out of sympathy with the administration’s views and hardly the kind of “enlightened administrator” that Roosevelt desired. The FTC Act provided for seven-year terms and removal only for “inefficiency, neglect of duty, or malfeasance,” but not, as in this case, for disagreement about policy. Humphrey refused to resign, so Roosevelt unilaterally sacked him. His estate sued for his salary from the time of his removal until his death. The question of the president’s removal power had a long and contentious history. The Constitution says nothing explicit on the matter. It grants federal judges good-behavior tenure, but says only that “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Read literally, this implied good-behavior tenure for all federal officers. Hamilton assumed in Federalist 77 that “the consent of [the Senate] would be necessary to displace as well as to appoint.” The first Congress then granted or recognized unilateral removal power when it created the first offices – the “rule of 1789,” as it came to be called. In the Reconstruction struggle, Congress tried to limit President Johnson’s removal power in the Tenure of Office Act. The House of Representatives then impeached Johnson for allegedly violating this act, but the Senate acquitted him. President Cleveland later persuaded Congress to repeal it. Later (1926), the Court had upheld an apparently unlimited removal power in Myers v. U.S., when it permitted President Wilson to remove a postmaster, though the statute creating the office allowed removal only with Senate consent.64 The Court now unanimously held that independent regulatory officials, at least, could be placed beyond executive removal. While a postmaster was clearly an executive officer, Justice Sutherland regarded an FTC commissioner as fundamentally different. “Its duties are neither political nor executive, but predominantly quasi-legislative and quasi-judicial,” he wrote.65 Justice Sutherland now gave a legitimacy to the FTC that Senator Sutherland had denied. In 1914 he had argued that its combination of legislative and judicial powers made the act “utterly void.”66 Now he no longer questioned “the authority of Congress, in 63

64 65 66

FDR to Stephen Early, 10 Apr. 1934, in F.D.R.: His Personal Letters, I: 397; Alan Brinkley, Voices of Protest: Huey Long, Father Coughlin and the Great Depression (New York: Vintage, 1983), 254. 272 U.S. 52 (1926). Humphrey’s Executor v. U.S., 295 U.S. 602 (1935), 624. CR (24 Jul. 1914), ALL VI: 286.

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creating quasi-legislative or quasi-judicial agencies,” to make them independent of executive control.67 His critics then and since have accused Sutherland of antiRoosevelt bias and “ipse dixit jurisprudence.”68 But his change may have resulted more from the ability of the federal courts to keep the FTC under control in the 1920s. Even before Humphrey had caused the commission to act in a more restrained way, the Taft Court had clipped its wings.69 An often-overlooked decision at the end of 1935 on a state tax law indicated the vitality of the Court’s natural law constitutionalism. It struck down a Vermont law that taxed interest on loans made outside the state more than those made within the state. For the first time, the Court voided a state law as a violation of the privileges-and-immunities clause of the Fourteenth Amendment. Sutherland articulated the fundamental similarity of the clauses of that amendment. A right to contract “may be a liberty safeguarded by the due process of law clause, and at the same time, none the less, a privilege protected by the privileges and immunities clause of the Fourteenth Amendment. In such case [a party] may invoke either or both.” As the Court had noted in Allgeyer, “the words ‘liberty’ and ‘privilege’ were interchangeable terms.”70 Little could be clearer than the Constitution’s goal of eliminating obstacles to interstate commerce, but Justice Stone dissented, saying that “If Vermont chooses to encourage, by tax exemption, loans at favorable rates of interest within the state, because it believes that local interests will be benefited, it can hardly be said for that reason to be contravening a constitution that has known a protective tariff for more than one hundred years.”71 This remarkable equation of the nation’s power to protect domestic industry with a state’s power to do so indicated the sort of local monopoly favored by the Brandeisians. President Roosevelt was chagrined at the Schechter and Humphrey cases, particularly the unanimity of the Court. “What about Old Isaiah?” he asked his advisers, expecting Brandeis to support the administration. But Brandeis had told Thomas Corcoran, a principal drafter of New Deal legislation, “This is the end of this business of centralization, and I want you to go back and tell the President that we’re not going to let this government centralize everything. It’s come to an end. The President has been living in a fool’s paradise.” He urged the New Dealers “to go home, back to the states. That is where they must do their 67 68

69

70 71

Humphrey’s Executor v. U.S., 629. Robert Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics (New York: Vintage, 1941), 109; Arkes, Return of George Sutherland, 175; William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 79. G. Cullom Davis, “The Transformation of the Federal Trade Commission, 1914–29,” Mississippi Valley Historical Review 49 (1962), 437–55; “Judicial Review of the Decisions of the Federal Trade Commission,” Wisconsin Law Review 4 (1927), 257–71; The President’s Committee on Administrative Management, Report (Washington: G.P.O., 1937), 226–27. Colgate v. Harvey, 296 U.S. 404 (1935), 432–33. Ibid., 439.

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work.”72 Roosevelt told the press that the Court had sustained wartime legislation that was “far more violative of the strict interpretation of the Constitution” than these. He derided the Court’s decision that the NIRA extended beyond Congress’s power to regulate commerce among the states. “The country was in the horse and buggy age when that clause was written,” and meant to address a set of problems that no longer obtained. Roosevelt mused that these decisions “may be the best thing that has happened to this country for a long time . . . because it clarifies the issue.” Claiming that the Court had established “forty-eight sovereigns,” he argued that we “will be completely powerless to prevent liquor from the next-door state, or ten states away, from coming into its borders.”73 Roosevelt saw the fundamental issue as federalism. “We are the only nation in the world that has not solved that problem. We thought we were solving it, and now it has been thrown right straight into our faces. We have been relegated to the horse-and-buggy definition of commerce.”74 After underestimating Court opposition, Roosevelt also overestimated public discontent with the Court. The “horse-and-buggy” slap at the Court caused enough of a public furor to lead Roosevelt to put aside a direct challenge and to remain silent on the issue.75

72

73

74 75

Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt, ed. John Q. Barrett (New York: Oxford, 2003), 66; McKenna, Franklin D. Roosevelt and the Great Constitutional War, 104; David Danelski, “The Propriety of Brandeis’ Extrajudicial Conduct,” in Brandeis and America, ed. Nelson L. Dawson (Lexington: University of Kentucky Press, 1989), 21. Section 2 of the Twenty-First Amendment, which wrote the Webb–Kenyon Act into the Constitution, obviated this problem. Press Conference, 31 May 1935, PP&A IV: 206. Leuchtenburg, Supreme Court Reborn, 91–92; Leuchtenburg, “When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman Thesis,” Yale Law Journal 108 (1999), 2080–81.

20 The Second New Deal

the second hundred days The judicial setbacks of “Black Monday” accelerated a presidential move to the left. Roosevelt took several steps that alienated the business community. In 1934, Congress created the Securities and Exchange Commission, an agency to enforce the Securities Act of 1933. Roosevelt did away with air mail contracts, which had provided subsidies for private aviation firms. (Several crashes and deaths among Army pilot substitutes soon restored them.) The Communications Act of 1934 extended the Radio Act of 1927 and created a new agency to enforce it. The Railroad Retirement Act and amended Railway Labor Act added costs to that industry. Mounting deficits also indicated that Roosevelt’s initial fiscal concerns were gone; conservative Budget Director Lewis Douglas resigned in August 1934. New Deal opponents – including many of Roosevelt’s former allies – established the American Liberty League. The American Bar Association began a study of the growth of the administrative state, led by Roscoe Pound, who became increasingly hostile to New Deal bureaucracy.1 Even the soundly repudiated former president rejoined the political world with The Challenge to Liberty, which displayed a greater sympathy to old liberalism.2 1

2

Glen O. Robinson, “The Federal Communications Act: An Essay on Origins and Regulatory Purpose,” in A Legislative History of the Communications Act of 1934, ed. Max D. Paglin (New York: Oxford, 1989), 3–5; William E. Leuchtenburg, Franklin Delano Roosevelt and the New Deal, 1932–40 (New York: Harper & Row, 1963), 90, 147–50; George Wolfskill, Revolt of the Conservatives: A History of the American Liberty League, 1934–40 (Westport, CT: Greenwood, 1974 [1962]); Jordan A. Schwarz, “Al Smith in the Thirties,” New York History 45 (1964), 316–30; Jessica Wang, “Imagining the Administrative State: Legal Pragmatism, Securities Regulation, and New Deal Liberalism,” Journal of Policy History 17 (2005), 271; David Wigdor, Roscoe Pound: Philosopher of Law (Westport, CT: Greenwood, 1974), 264–74; N. E. H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chicago Press, 1997), 258. Herbert Hoover, The Challenge to Liberty, in American Individualism and the Challenge to Liberty (West Branch, IA: Herbert Hoover Presidential Library, 1989 [1934]), 67. It still bore traces of progressive historicism – 83–84. See Arthur A. Ekirch, Jr., The Decline of American Liberalism (New York: Atheneum, 1967), 283.

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At the same time, Roosevelt faced a growing challenge on the left – from Louisiana Governor Huey Long’s “Share Our Wealth” movement, the “social justice” campaign of Father Charles Coughlin, the old-age pension scheme of Francis Townshend, and the “End Poverty in California” campaign of Upton Sinclair. The unusually large midterm election gains for the president’s party did not indicate whether the electorate endorsed the president or his policies.3 Roosevelt pressed the new Congress to enact legislation that historians have called the “second New Deal” or the “second hundred days.”4 “We have undertaken a new order of things,” Roosevelt told the new Congress in January 1935, “yet we progress to it under the framework and in the spirit and intent of the American Constitution.” He called for further steps toward “social justice,” which governments around the world had begun to undertake.5 He advocated old-age insurance, unemployment insurance and provision for dependent children. Congress enacted the landmark Social Security Act in June 1935. It provided for unemployment insurance through the familiar grants-in-aid system, but included more federal control. States paid taxes into the federal treasury, to establish a fund upon which they could draw for unemployment compensation systems approved by a federal Social Security Board. It also established a completely national program of old-age insurance.6 Advocates of a fully national welfare state have long lamented the dual system established by the Social Security Act. It appeared to establish a generous, national system of old-age pensions for the “deserving,” and a restricted, federal “welfare” system for the “undeserving” poor, which stigmatized minorities especially.7 But from the perspective of 1935, the Social Security Act was a major step forward in centralized bureaucratic statism. Above all, it found the taxing power as the key to expansive federal power. When Labor Secretary Frances Perkins lamented the difficulty of finding a constitutional basis for the program, Justice Stone told her,

3

4

5 6

7

Alan Brinkley, Voices of Protest: Huey Long, Father Coughlin and the Great Depression (New York: Vintage, 1983); Greg Mitchell, The Campaign of the Century: Upton Sinclair’s E.P.I.C. Race and the Birth of Media Politics (New York: Random House, 1992); Leuchtenburg, Franklin D. Roosevelt, 116; Colin Gordon, “Rethinking the New Deal,” Columbia Law Review 98 (1998), 2045–47. William H. Wilson, “The Two New Deals: A Valid Concept?” Historian 28 (1966), 268–88; William E. Leuchtenburg, The F.D.R. Years: On Roosevelt and His Legacy (New York: Columbia University Press, 1995), 216–17. Annual Message to Congress, 4 Jan. 1935, PP&A IV: 15. Social Security: A Documentary History, ed. Larry W. DeWitt et al. (Washington: CQ Press, 2008), 65–70; Edwin W. Witte, The Development of Social Security: A Memorandum on the History of the Committee on Economic Security and Drafting and Legislative History of the Social Security Act (Madison: University of Wisconsin Press, 1963), 203–04; Jane Perry Clark, The Rise of a New Federalism: Federal-State Cooperation in the United States (New York: Russell & Russell, 1965 [1938]), 151–52, 164, 267. Jill Quadango, The Color of Welfare: How Racism Undermined the War on Poverty (New York: Oxford University Press, 1994); Donna C. and Charles V. Hamilton, The Dual Agenda: The African-American Struggle for Civil Rights and Economic Equality (New York: Columbia University Press, 1997).

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“The taxing power, my dear, the taxing power. You can do anything under the taxing power.”8 In February 1935, Roosevelt asked for an extension of the NIRA, and the abolition of public-utility holding companies. A new banking Act gave greater power to the Federal Reserve Board, another step in which the Board’s failure became the basis for its greater empowerment.9 It gave the treasury secretary power as great as that of any European central bank, and the Federal Reserve remained under treasury domination until after World War II.10 Roosevelt also obtained a more progressive tax system. He had justified redistributive taxation in 1933 because “very large profits were made at the expense of neighbors.”11 This went beyond the familiar progressive argument that graduated income taxes shifted the burden of taxation onto the shoulders of those best able to bear them, which relied on the marginalist economic argument that the loss of a millionth dollar hurt less than the loss of a hundredth. Roosevelt now implied that high incomes had been acquired unjustly. With an eye on Huey Long’s wealth-redistribution scheme, he told Congress in June 1935 that “our revenue laws have operated in many ways to the unfair advantage of the few, and have done little to prevent an unjust concentration of wealth and economic power.” “Social unrest,” he said, “and a deepening sense of unfairness are dangers to our national life.”12 Such increasing resort to democratic-aristocratic language raised the question of whether the president was fomenting or merely recognizing class conflict. Al Smith’s sense that it was the former drove him into open opposition to the New Deal.13 The second New Deal peaked in the National Labor Relations Act. The bill, sponsored by Senator Robert Wagner of New York, endeavored to redeem what organized labor sought in section 7(a) of the NIRA. The NIRA had continued Hoover’s “high-wage” policy, reducing output and raising unemployment.14 It also promoted a “strike wave” in 1933, as workers fought for recognition of independent unions. “A vast number of strikes have arisen in protestation 8 9

10

11 12 13

14

Frances Perkins, “The Roots of Social Security,” speech in Baltimore, 23 Oct. 1962. Milton Friedman and Anna Jacobson Schwartz, A Monetary History of the United States, 1867– 1960 (Princeton: Princeton University Press, 1963), 447, 691; Lawrence H. Chamberlain, The President, Congress and Legislation (New York: Columbia University Press, 1946), 346. Esther Rogoff Taus, Central Banking Functions of the U.S. Treasury, 1789–1941 (New York: Russell & Russell, 1943), 218–20; Richard H. Timberlake, Monetary Policy in the United States: An Intellectual and Institutional History (Chicago: University of Chicago Press, 1993), 312. Address, Vassar College, 26 Aug. 1933, PP&A II: 341. Message to Congress, 19 Jun. 1935, PP&A IV: 270; Brinkley, Voices of Protest, 80. Address, Witchita, 13 Oct. 1936, PP&A V: 462; Wolfskill, Revolt of the Conservatives, 137; Amity Shlaes, The Forgotten Man: A New History of the Great Depression (New York: HarperCollins, 2007), 266; Leuchtenburg, The F.D.R. Years, 125, 299; Samuel B. Hand, “Al Smith, Franklin D. Roosevelt, and the New Deal: Some Comments on Perspective,” Historian 27 (1965), 366–81. Polling data indicated that Smith was right – Barry Cushman, “Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s,” Buffalo Law Review 50 (2002), 43. Harold L. Cole and Lee E. Ohanian, “New Deal Policies and the Persistence of the Great Depression: A General Equilibrium Analysis,” Journal of Political Economy 112 (2004), 779–816.

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against the denial of rights guaranteed” by it, Wagner told Congress.15 Most employers tried to comply with 7(a) through Employee Representation Plans or “company unions,” which the AFL regarded as company-dominated. Other employers insisted on bargaining with individual workers or multiple unions rather than with one exclusive representative. Independent unions denounced such “pluralism” or “proportional representation” for allowing employers to divide and weaken their workers. The boards that Roosevelt established to oversee 7(a) clashed with the NIRA, the boards being more pro-union and the NRA more pro-employer. The president would not make a clear decision on these questions, but generally encouraged pluralism. He told reporters that workers should be free to have anyone represent them, even if it were the “Ahkoond of Swat” or the “Royal Geographic Society.”16 Roosevelt appeared to harbor a suspicion of labor unions common among progressives.17 While he frequently condemned industrial autocracy and agreed that workers were exploited, his solution was not the empowerment of independent labor unions. He opened 1936 with a denunciation of “financial and industrial groups” representing “entrenched greed” that had established “slavery at home,” but did not call for organized labor to counteract organized capital.18 His attitude reflected a kind of rural Tory noblesse oblige to the working class. It also echoed the views of many antebellum reformers who regarded chattel slavery and “wage slavery” as equivalent. Louis Brandeis, for example, argued that antebellum slavery was preferable to the wage slavery of the U.S. Steel Corporation.19 Roosevelt showed his independence of organized

15

16

17

18 19

Lewis L. Lorwin and Arthur Wubnig, Labor Relations Boards: The Regulation of Collective Bargaining Under the National Industrial Recovery Act (Washington: Brookings, 1935), 88; Donald R. Brand, Corporatism and the Rule of Law: A Study of the National Recovery Administration (Ithaca, NY: Cornell University Press, 1988), 237; National Labor Relations Board, Hearings before the Committee on Education and Labor, 74th Cong., 1st Sess. (Washington: G.P.O., 1935), 54. Press Conference, 15 Jun. 1934, PP&A III: 300; Ruth O’Brien, Workers’ Paradox: The Republican Origins of New Deal Labor Policy (Chapel Hill: University of North Carolina Press, 1998), 178. The “Ahkoond of Swat” was a venerated Muslim holy man of the nineteenth century. Daniel R. Fusfeld, The Economic Thought of Franklin D. Roosevelt and the Origins of the New Deal (New York: Columbia University Press, 1956), 48; C. K. McFarland, Roosevelt, Lewis, and the New Deal, 1933–40 (Fort Worth: Texas Christian University Press, 1970), 47. Annual Message to Congress, 3 Jan. 1936, PP&A V: 8. Marcus Cunliffe, Chattel Slavery and Wage Slavery: The Anglo-American Context, 1830–60 (Athens: University of Georgia Press, 1979); “Brandeis Answers Gary,” New York Times, 30 Jan. 1912, p. 12; United States Steel Corporation, Hearings before the Committee of Investigation of United States Steel Corporation (Washington: G.P.O., 1912), 2842–43. Roosevelt never mentioned the Democratic party’s defense of chattel slavery in his many partisan histories. Those histories jump from Jefferson and Jackson to the late nineteenth-century campaign against industrial slavery. See, for example, his final speech of the 1936 campaign, in which he quotes Lincoln’s Sanitary Fair speech on the meaning of “liberty” and elides Lincoln’s reference to race. Campaign Address, Wilmington, DE, 29 Oct. 1936, PP&A V: 557. Similarly, Roosevelt never mentioned Dred Scott in his homiletic histories of the abuse of judicial power – Fireside Chat, 9 Mar. 1937, PP&A VI: 122.

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labor when he chose Frances Perkins to be his Secretary of Labor over the objections of the AFL, which had regarded the Department of Labor as its own. Thus he hoped that a government-supervised system like that of the NRA could manage labor disputes, recalling the cooperative efforts of World War One. Roosevelt created several makeshift labor-relations boards to preempt Wagner’s proposal, and as late as May 1935 was still trying to convince the Senator to drop his bill. The NRA’s failure to produce industrial harmony, and the Act’s invalidation by the Supreme Court, made Roosevelt more sympathetic to Wagner’s proposal. When the bill passed the Senate, and seemed likely to pass the House, Roosevelt acceded. He moved, then, from his imagined “concert of interests” strategy to one of promotion of particular, countervailing interest groups. The Black Monday decisions gave decisive impetus to this movement.20 Supporters and opponents alike recognized the radicalism of the Wagner Act. It declared that employer resistance to union recognition “leads to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing interstate commerce.” In fact, the “strike wave” of 1933–34 was the result of federal efforts to promote union recognition. This commerce-obstruction claim was a fig leaf to cover the real basis of the act, seen in its reiteration of the language of the Norris–La Guardia Act.21 It condemned “the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract.” Wagner hoped that this provision would insulate the bill from Fifth Amendment dueprocess attacks. But he also claimed that the bill’s goal of redistributing income was a legitimate purpose, on the theory that unequal purchasing power had caused the Depression and impeded interstate commerce.22 The Act required employers to bargain exclusively with a union chosen by a majority of their employees. It outlawed company unions and a host of other “unfair labor practices” by employers that resisted union recognition. It left the election of union representatives and enforcement of the law to a National Labor Relations Board, with power to issue judicially enforceable cease-and-desist orders. The Act imposed no restraints on unions.23

20

21

22

23

Brand, Corporatism and the Rule of Law, 262, 279, 286; Gerald D. Nash, “Franklin D. Roosevelt and Labor: The World War I Origins of Early New Deal Policy,” Labor History 1 (1960), 39–52; Leon H. Keyserling, “The Wagner Act: Its Origin and Current Significance,” George Washington Law Review 29 (1960), 202; Chamberlain, The President, Congress and Legislation, 174; “President Orders Speed on NRA and Wagner Bills,” New York Times, 25 May 1935, p. 1. Mark Barenburg, “The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation,” Harvard Law Review 106 (1993), 1401–02, 1435, 1437; Brand, Corporatism and the Rule of Law, 258; Keyserling, “The Wagner Act,” 218. Comparison of S. 2926 (73d Congress) and S. 1958 (74th Congress), 11 Mar. 1935, in National Labor Relations Board, Legislative History of the National Labor Relations Act, 2 vols. (Washington: G.P.O., 1959), 1341; National Labor Relations Board, Sen. Rpt. 573, 74th Cong., 1st Sess. (1 May 1935), ibid., 2317. 49 Stat. 449 (1935); The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act, ed. Charles J. Morris et al. (Washington: Bureau of National Affairs, 1971), 28.

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Historians have had difficulty accounting for the overwhelming support for the Act in Congress, where it passed 63–12 in the Senate and by voice vote in the House. The administration was aware that Schechter meant that the Court would almost certainly strike down the Wagner Act. Attorney General Homer Cummings urged him to veto it on constitutional grounds.24 Many congressmen voted for it on the assumption that it would be invalidated, to curry favor with organized labor without having to live with the consequences. Roosevelt likely hoped that the Court would do so, thereby alienating public opinion and bolstering his efforts to bring the Court to heel.25 After the NIRA effort to establish national planning through industrial cartels had failed, Congress undertook a program of “piecemeal planning.” The Wagner Act attempted to establish cartels in the labor market – one part of the bilateral monopoly that John L. Lewis had called for.26 It looked like the delegation of legislative power that the Court had condemned in Schechter. The administration also pursued a new NIRA for the coal industry, in the Bituminous Coal Conservation Act of 1935. The Act established a National Bituminous Coal Conservation Commission to formulate a code for the industry, with the same sort of price-fixing and labor standards as the NRA coal code. It would enforce compliance by a heavy tax on coal production, which would be rebated to operators who complied with the code.27 The Motor Carrier Act of 1935 was a similar “piecemeal planning” effort to cartelize a particular industry. After Schechter had struck down their “codes of fair competition,” truckers got a special law to cover their business. By limiting entry into trucking, it helped to prevent not just competition within that industry, but to limit truck competition with railroads.28 24

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Leuchtenburg, Franklin D. Roosevelt, 151; Memo from Secretary Daniel C. Roper, 20 Jun. 1935, DHRP VIII: 626; Peter H. Irons, The New Deal Lawyers (Princeton: Princeton University Press, 1982), 231; Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: Norton, 2010), 422. Several sources claim that Cummings urged Roosevelt to veto the bill on constitutional grounds. But their source, Cummings’s diary for 20 Jun. 1935, says merely that he “regarded [it] as of rather doubtful constitutionality.” It seems unlikely that a toady like Cummings would “urge” Roosevelt to veto a piece of “must” legislation, particularly on constitutional grounds. Cummings probably disliked the bill more because it established an independent enforcement agency outside of the Department of Justice. Irving Bernstein, Turbulent Years: A History of the American Worker, 1933–41 (Boston: Houghton Mifflin, 1970), 341; Bernard Bellush, The Failure of the NRA (New York: Norton, 1975), 172; Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War (New York: Fordham University Press, 2002), 193–95; O’Brien, Workers’ Paradox, 198; James A. Gross, The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law (Albany: State University of New York Press, 1974), 145. Ellis W. Hawley, The New Deal and the Problem of Monopoly: A Study in Economic Ambivalence (Princeton: Princeton University Press, 1966), 130–31; Keyserling, “The Wagner Act,” 223. 49 Stat. 991 (1935); “The Bituminous Coal Conservation Act of 1935,” Yale Law Journal 45 (1935), 293–314; Hawley, New Deal and the Problem of Monopoly, 209. John Richard Felton, “Background of the Motor Carrier Act of 1935,” in Regulation and Deregulation of the Motor Carrier Industry, ed. Felton and Dale G. Anderson (Ames: Iowa State University, 1989); Hawley, New Deal and the Problem of Monopoly, 231.

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The Wagner Act represented the transformation of traditional constitutional liberalism into entitlement-based statism. Roosevelt had adumbrated this redefinition in the Commonwealth Club Address; the Wagner Act gave it substance. The Act’s appeal to “full freedom of association” and “actual liberty of contract” fundamentally altered the meaning of those terms. The Wagner Act provided not freedom of association, but an entitlement to association – compulsory collective bargaining. It gave unions the power to compel association by non-union members and employers, while the classical standard of a right to associate would have prevented such compulsory association. Robert Wagner had an unusually advanced version of this new liberalism; it is unlikely that the president or other members of Congress fully shared it.29 But he did grasp the logic of FDR’s “economic bill of rights,” a phrase that Wagner himself used.30

the court responds Roosevelt began 1936 with an annual message to Congress that launched his reelection campaign. To gain a wide audience, he delivered the address at night – only President Wilson had done so previously, when asking Congress to declare war, and the Washington Post likened the address to a declaration of class war.31 Noting that foreign affairs had become more ominous since his inauguration, Roosevelt depicted his domestic opponents as foreign dictators. “Within democratic nations the chief concern of the people is to prevent the continuance or the rise of autocratic institutions that beget slavery at home and aggression abroad. Within our borders, as in the world at large, popular opinion is at war with a power-seeking minority.” His administration was attempting to establish “an economic constitutional order” against “the domination of government by financial and industrial groups.” The attempt had “earned the hatred of entrenched greed.” The money-changers whom he had chased out of the temple in 1933 were now attempting to regain their control of the government.32 A few days later, he likened himself to Andrew Jackson, who had “sought social justice; Jackson fought for human rights in his many battles to protect the people against autocratic or oligarchic aggression. . . . They loved him for the enemies he had made.”33 Meanwhile, the Court struck down the Agricultural Adjustment Act. U.S. v. Butler was the first of several decisions that divided the Court into a conservative 29

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Barenburg, “The Political Economy of the Wagner Act,” 1386–90, 1415, 1437, 1441; David Brody, “Section 8(a)(2) and the Origins of the Wagner Act,” in Restoring the Promise of American Labor Law, ed. Sheldon Friedman et al. (Ithaca: I.L.R. Press, 1994), 33; Theodore J. St. Antoine, “How the Wagner Act Came to Be: A Prospectus,” Michigan Law Review 96 (1998), 2201–11. “Wagner Outlines New Deal Goals,” New York Times, 21 Dec. 1934, p. 3; “Wagner Outlines New ‘Bill of Rights,’” Wall Street Journal, 22 Dec. 1934. Frank Freidel, Franklin D. Roosevelt: A Rendezvous with Destiny (Boston: Little, Brown, 1990), 195. Annual Message to Congress, 3 Jan. 1936, PP&A V: 8. Address at Jackson Day Dinner, Washington, 8 Jan. 1936, PP&A V: 38.

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bloc (Sutherland, Van Devanter, Butler, and McReynolds) and a liberal bloc (Stone, Brandeis, and Cardozo), with Justices Hughes and Roberts in the middle. Both middle justices joined the conservatives in a 6–3 decision against the AAA. Justice Roberts’s opinion focused on the agricultural processing tax as an attempt to achieve the unconstitutional end of regulating agricultural production. It also represented “the expropriation of money from one group for the benefit of another,” rather than for any public purpose. But for the first time, the Court interpreted the “general welfare” clause of the Constitution as an independent grant of power, apart from those enumerated in Article I, section 8 – the Hamiltonian view over the Madisonian view of the general welfare clause. But, Roberts noted, “Hamilton himself . . . never suggested that any power granted by the Constitution could be used for the destruction of local self-government in the states.” The general welfare clause might be an independent grant of power, but the power must still be general, not particular. This was equivalent to the Court’s evaluation of whether state exercises of the taxing or the police power were for public or partial purposes. Roberts also denied that the Court was usurping legislative power. “The Constitution is the supreme law of the land ordained and established by the people,” he wrote, and “all legislation must conform to the principles it lays down.” When an act was challenged as not so conforming, “the judicial branch of the government has but one duty – to lay the article of the Constitution which is invoked beside the statue which is challenged and to decide whether the latter squares with the former.” Echoing Hamilton in Federalist 78, Roberts claimed that the Court had no political power. “The only power it has, if such it may be called, is the power of judgment.”34 This expression of traditional constitutional interpretation especially angered progressives. They had long derided this “slotmachine” (what Pound called “mechanical jurisprudence”) theory as utterly naïve, if not a cloak for reading conservative economic theories into the Constitution.35 As the Chief Justice noted, Roberts’s expansion of the general welfare clause might be more important in the long run than the striking down of the AAA. Conservative constitutionalist James M. Beck warned that it “will come back to plague the Court.”36 But the Court’s liberals took it ill. Though the principal

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U.S. v. Butler, 297 U.S. 1 (1936), 61, 77, 62. The “slot-machine” metaphor suggested not randomness in judicial decision making – with outcomes depending, as one of the Realists is said to have put it, on what the judge had eaten for breakfast – but a simple data-input device such as a calculator or computer – Richard D. Friedman, “Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation,” University of Pennsylvania Law Review 142 (1994), 1896; William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998), 192. The Autobiographical Notes of Charles Evans Hughes, ed. David J. Danelski and Joseph S. Tulchin (Cambridge, MA: Harvard University Press, 1973), 309; Morton Keller, In Defense of Yesterday: James M. Beck and the Politics of Conservatism, 1861–1936 (New York: CowardMcCann, 1958), 266.

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dispute concerned the nature of the processing “tax,” Justice Stone focused on the issue of judicial power. He dismissed Roberts’s pose of judicial modesty and warned that “while unconstitutional exercise of power by the executive and judicial branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.” He objected that the majority had imposed limits on the taxing and spending powers by means “which do not find their origin in any express provision of the Constitution.” Stone regarded them as having judged the policy, rather than the constitutionality, of the AAA, and concluded that “Courts are not the only agency of government that must be assumed to have capacity to govern.”37 Justice Brandeis, though he had vehemently opposed the centralizing aspects of the AAA, reluctantly joined the dissenting opinion. Though the President regarded the decision as a “declaration of war,” he voiced no objection to it. Congress adopted a “Soil Conservation Act” that continued benefit payments to farmers. It then rather spitefully imposed an 80 percent tax on any refund of unconstitutional taxes that the processors sued to recover, and this the Court upheld.38 The conservatives next took a swipe at the new Securities and Exchange Commission, which had refused to allow a securities promoter to withdraw a prospective stock offering. Justice Sutherland held that “The action of the commission finds no support in principle or in law. It is wholly unreasonable and arbitrary. It violates the cardinal precept upon which the constitutional safeguards of personal liberty ultimately rest – that this shall be a government of laws . . . and becomes an autocracy.”39 Sutherland sounded determined to subject the recently created administrative agencies of the New Deal to the same strict standards that the Court had applied to the Federal Trade Commission. Justice Cardozo for the three liberals contended that “To permit an offending registrant to stifle an inquiry by precipitate retreat on the eve of his exposure is to give immunity to guilt; to encourage falsehood and evasion; to invite the cunning and unscrupulous to gamble with detection. . . . The statute and its sanctions become the sport of clever knaves.” He deflated Sutherland’s ominous likening of the SEC “with denunciatory fervor, to the Star Chamber of the Stuarts. Historians may find hyperbole in the sanguinary simile.”40 The opinion also drew fire from Felix Frankfurter. “It was written for morons,” the Harvard Law professor 37

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U.S. v. Butler, 78–79, 83, 87; Richard Maidment, “The New Deal Court Revisited,” in Nothing Else to Fear: New Perspectives on America in the Thirties, ed. Stephen W. Baskerville and Ralph Willett (Manchester, UK: Manchester University Press, 1985), 55. McKenna, Franklin D. Roosevelt and the Great Constitutional War, 133; Irons, New Deal Lawyers, 197; William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 98; Paul L. Murphy, “The New Deal Agricultural Program and the Constitution,” Agricultural History 29 (1955), 162. Jones v. Securities & Exchange Commission, 298 U.S. 1 (1936), 23. Ibid., 32–33.

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wrote.41 Though it may have impeded economic recovery, the SEC became a model for regulatory competence, and was rarely challenged by the financial community.42 The Court did accept the Tennessee Valley Authority Act, at least for the sale of electricity generated by the Wilson Dam, as part of Congress’s power to “dispose of . . . property belonging to the United States.” Only Justice McReynolds dissented, noting that “under pretense of exercising granted power, [Congress] may not in fact undertake something not intrusted to them.” He called attention to “the deliberately announced purpose of the directors” to sell cheap power and discipline private power companies, which he detected under the “thin mask of disposing of property of the United States.”43 The TVA still faced formidable legal challenges. Adverse district court judgments had caused Congress to amend the Act in 1935, with a view to pending Supreme Court decisions. Planners lamented that the need to find some constitutional basis for the TVA, usually navigation, crimped its ambitions.44 The Court then struck down the Bituminous Coal Conservation Act. Roosevelt had written to the chairman of the subcommittee considering the bill that “questions of the constitutionality of some of its provisions have arisen.” He claimed that nobody could predict what the courts would decide, and “the situation is so urgent and the benefits of the legislation so evident that all doubts should be resolved in favor of the bill, leaving to the courts, in an orderly fashion, the ultimate question of its constitutionality,” Roosevelt wrote. “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.”45 His Attorney General likewise would not advise the subcommittee on the bill, telling them to “push it through and leave the question to the courts,” though he confided to his diary that it was

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William E. Leuchtenburg, “When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman Thesis,” Yale Law Journal 108 (1999), 2100, 2106. Jim Powell, F.D.R.’s Folly: How Roosevelt and His New Deal Prolonged the Great Depression (New York: Crown Forum, 2003), 107; Thomas K. McCraw, “With the Consent of the Governed: The SEC’s Formative Years,” Journal of Policy Analysis and Management 1 (1982), 346–70; McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA: Belknap, 1984), 216; Robert L. Stern, “The Commerce Clause and the National Economy, 1933–46, Part Two,” Harvard Law Review 59 (1946), 926. Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), 357, 372. Thomas K. McCraw, T.V.A. and the Power Fight, 1933–40 (Philadelphia: J. B. Lippincott, 1971), 116; Richard Lowitt, “The T.V.A., 1933–45,” in TVA: Fifty Years of Grass-Roots Bureaucracy, ed. Erwin C. Hargrove and Paul K. Conkin (Urbana: University of Illinois Press, 1983), 42–43; William U. Chandler, The Myth of T.V.A.: Conservation and Development in the Tennessee Valley, 1933–83 (Cambridge, MA: Ballinger, 1984), 36. For criticism of the Act, see Opinions of Newton D. Baker and James M. Beck on the Constitutionality of the Tennessee Valley Authority Act (New York: Edison Electric Institute, 1935); The T.V.A. Amendments, American Liberty League Document No. 37 (May, 1935). To Samuel B. Hill, 6 Jul. 1935, PP&A IV: 297.

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“clearly unconstitutional.”46 Roosevelt here expressed a progressive constitutional pragmatism: an act is constitutional if the judges say it is and their judgment is sustained. He was also daring the Court to strike down ever more New Deal legislation, which he believed would build popular support when he challenged the Court’s judgment. Columbia Law School Dean Howard Lee McBain advised the president to promote as many constitutionally dubious acts as possible, in order to hasten a resolution, perhaps by constitutional amendment. Felix Frankfurter similarly counseled Roosevelt to “accumulate popular grievances against the Court,” by promoting ever more controversial legislation such as the Wagner Act. “Let the Court strike down any or all of them next winter or spring, especially by a divided court. Then propose a constitutional amendment. . . . That will give you an overwhelming issue of a positive character” for the 1936 campaign. The President told the cabinet that “He was not at all averse to the Supreme Court declaring one New Deal statute after another unconstitutional,” Interior Secretary Harold Ickes recorded, for this would provide “a real issue . . . on which we can go to the country.”47 Hughes and Roberts both ruled with the conservatives that the laborregulation provisions of the act were invalid, but Justice Hughes believed that the price-control elements could be salvaged. Justice Sutherland again condemned the tax provisions as de facto penalties to compel compliance with a regulation that exceeded Congress’s power – a regulation of local production rather than interstate commerce. The powers conferred upon the Coal Board represented “legislative delegation in its most obnoxious form,” and violated the due process clause.48 The decision appeared to doom the post-NRA campaign of “piecemeal delegation”; the Justice Department trembled for the Wagner Act. The markedly faint dissent by the liberals indicated that the unanimity of Schechter had been no aberration.49 The Court then reopened the due process debate when it struck down a New York minimum wage law for women. Justice Butler took pains to point out that “the state statute is substantially identical” to the DC minimum wage law that the Court had voided in Adkins. “No application has been made for reconsidering the constitutional question there decided,” he noted, and the Court would not do so on its own initiative.50 Chief Justice Hughes for the dissenters was

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“Cummings Doubts Coal Bill Is Legal,” New York Times, 6 Jul. 1935, p. 2; diary entry, 20 Jun. 1935, Homer S. Cummings Papers, box 234, University of Virginia. 24 Jan. 1936, in The Secret Diary of Harold L. Ickes: The First Thousand Days, 1933–36 (New York: Simon and Schuster, 1953), 524. Carter v. Carter Coal Co., 298 U.S. 238 (1936), 311. Irons, New Deal Lawyers, 253; Richard A. Maidment, The Judicial Response to the New Deal: The US Supreme Court and Economic Regulation, 1934–36 (Manchester, UK: Manchester University Press, 1991), 125–28. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), 603–05. This point was somewhat misleading. New York did ask for a reconsideration of Adkins but, since it tried to distinguish its act from the congressional statute struck down in Adkins, there was no need to reconsider Adkins. John W. Chambers, “The Big Switch: Justice Roberts and the Minimum-Wage Cases,” Labor

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willing to do so, noting that New York’s law mandated a “fair wage” rather than a minimum wage, thus taking account of the value of services rendered rather than setting an arbitrary rate. He then returned to the reasoning of Muller v. Oregon, on the unequal position of women in the labor market and on their physiological status.51 Though some “equality feminists” praised the Tipaldo decision, it drew more criticism than any decision of the term. “Is it true that the President bribed Butler and his four associates to decide the Minimum Wage case for him the way they did?” Frankfurter joked.52 Even Roosevelt broke silence. “It seems fairly clear,” he told the press, “as a result of this decision and former decisions, using this question of a minimum wage as an example, that the ‘no-man’s land’ where no government – state or federal – can function is being more clearly defined.”53 If Roosevelt had been hoping for a series of Court defeats, he certainly got it. Justice Stone called the 1936 term “in many ways one of the most disastrous in history. At any rate it seems to me that the Court has been needlessly narrow and obscurantist in its outlook.”54 Yet, at the end of the year, the Court provided a ringing endorsement of executive power in foreign affairs. Congress had given the president the authority to embargo arms exports to South American nations involved in the Chaco War if he determined that such an embargo would promote peace. The CurtissWright Export Company appealed its conviction for violating the embargo proclamation, claiming that Congress had unconstitutionally delegated legislative power to the president. Justice Sutherland held that Congress had a broader power to delegate in foreign than in domestic affairs. The Constitution gave Congress domestic powers that the states had previously possessed, but the states had never possessed powers of diplomacy or war. Echoing Lincoln’s argument that “the Union is much older than the states,” Sutherland claimed that “Even before the Declaration, the colonies were a unit in foreign affairs.” These powers antedated and transcended the Constitution; they were attributes of “sovereignty” that all governments possessed. He went on to explain that the president alone represented the United States in the “vast external realm” of world affairs.55 Sutherland grasped the Founders’ Lockean view of the president’s having greater powers at home than abroad. Locke described a domestic “executive” power and a foreign “federative” power, usually confided to the same officer.

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History 10 (1969), 56; William Lasser, “Justice Roberts and the Constitutional Revolution of 1937 – Was There a ‘Switch in Time’?” Texas Law Review 78 (2000), 1365. Morehead v. New York ex rel. Tipaldo, 626–27. William G. Ross, The Chief Justiceship of Charles Evans Hughes, 1930–41 (Columbia: University of South Carolina Press, 2007), 93; Frankfurter quoted in Leuchtenburg, “When the People Spoke,” 2102. Press Conference, 2 Jun. 1936, PP&A V: 192. The phrase “no-man’s land” seems to have come from Edward S. Corwin, who also called it “triple federalism” – Twilight of the Supreme Court: A History of Our Constitutional Theory (New Haven: Yale, 1934), 35. Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956), 425–26. U.S. v. Curtiss-Wright Export Co., 299 U.S. 304 (1936), 316.

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The federative power was “much less capable to be directed by antecedent, standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom” of the president.56 Though Sutherland may have strained the historical evidence to make his point, the opinion had a firm grounding in natural law, one that convinced all of the Justices except McReynolds. Roosevelt would extend this argument in a more controversial way before and during the Second World War, when he acted without delegated legislative power, or even contrary to law, making a claim for “prerogative” power.57

mandate? Hardly anybody expected the great landslide of the 1936 election. Roosevelt successfully constructed a coalition of farmers, organized labor, urban ethnic minorities and Northern blacks, intellectuals, and the Solid South. Above all, he retained enormous personal popularity. The Republicans mistakenly assumed that their traditional base in the urban Northeast and upper Midwest was secure, and thus nominated a candidate to appeal to farm-belt groups – Alf Landon, the only Republican governor re-elected in the 1934 washout. Landon had been a Bull Moose schismatic in 1912, and voted for Robert LaFollette’s Progressive Party in 1924. As with Hoover in 1932 and Hughes in 1916, the Republicans chose a progressive candidate who floundered to find a campaign theme. Landon also suffered from an inept effort to “sell” him like a consumer product. He began as a Midwestern progressive; later, as signs of trouble appeared, ran more as an Eastern conservative.58 The conservative Baltimore Sun would not endorse him, saying that both he and FDR were “heavily tarred with the same stick of authoritarian government.”59 The GOP platform equivocated also. It claimed that “the power of Congress has been usurped by the President,” and that “the integrity and authority of the Supreme Court have been flouted.” It charged that the Democrats had betrayed states’ rights and 56

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John Locke, Second Treatise of Government, ed. C. B. Macpherson (Indianapolis: Hackett, 1980 [1690]), 77; Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994), 230. Charles A. Lofgren, “United States v. Curtiss-Wright Export Corporation: An Historical Reassessment,” Yale Law Journal 83 (1973), 1–32; Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: Norton, 1991), 533–39. Clyde P. Weed, The Nemesis of Reform: The Republican Party During the New Deal (New York: Columbia University Press, 1995), 73, 86, 108; Milton Plesur, “The Republican Congressional Comeback of 1938,” Review of Politics 24 (1962), 526; Ralph D. Casey, “Republican Propaganda in the 1936 Campaign,” Public Opinion Quarterly 1 (1937), 27–44; William E. Leuchtenburg, “Election of 1936,” in History of American Presidential Elections, 4 vols., ed. Arthur M. Schlesinger, Jr. et al. (New York: Chelsea House, 1971), III: 2813–16. Quoted in Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009), 211.

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“insisted on the passage of laws contrary to the Constitution.” The Republicans pledged “to resist all attempts to impair the authority of the Supreme Court,” and expressed a belief that minimum-wage laws for women and children could be attained by “state laws and interstate compacts . . . within the Constitution as it now stands.” They also supported “the right of labor to organize and to bargain collectively through representatives of its own choosing without interference from any source,” without excluding proportionalism or company unions.60 The New York minimum-wage case made Republicans chary to associate themselves too closely with the Court. Landon never urgently pressed Roosevelt to reveal his intentions for the Court. Late in the campaign, he pointed out that Roosevelt “has publicly urged Congress to pass a law [the Bituminous Coal Act], even though it had reasonable doubts as to its constitutionality.” He accused the president of having “publicly belittled the Supreme Court,” and “publicly suggested that the Constitution is an outworn document.” He asked whether Roosevelt would propose an amendment or “get around the Constitution by tampering with the Supreme Court.”61 But Landon gained little traction on the issue – a supporter of the overtly Court-curbing La Follette campaign in 1924 could hardly have done so. The Democratic convention called attention to Landon’s (and his running-mate, Frank Knox) support for TR’s radical 1912 court-curbing campaign. The administration also pointed out that Al Smith, who had encouraged Democrats to “take a walk” to protest Roosevelt’s betrayal of Democratic principles, had endorsed “shelving the Constitution” in the early days of the New Deal.62 Roosevelt largely ignored Landon and the Republicans anyway. He framed the election as his personal campaign against rapacious plutocrats. The formation of the American Liberty League, a supremely maladroit public-relations organization, became a great benefit to him.63 In his nomination speech, Roosevelt repeated the theme of his Commonwealth Club address, that the Revolution of 1776 had overthrown “tyranny of political autocracy,” but the industrial revolution had produced new “economic royalists.” “Privileged princes of these new economic dynasties, thirsty for power, reached out for control over government itself. They created a new despotism and wrapped it in the robes of legal sanction.” He declared that the government’s role was one of “charity.” He claimed that “governments can err, Presidents do make mistakes, but the immortal Dante tells us that divine justice weighs the sins of the coldblooded and the sins of the warm-hearted in different scales. Better the

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NPP (1936), 365–67; Weed, Nemesis of Reform, 99. “The Texts of Governor Landon’s Addresses at Madison Square Garden and Over the Radio,” New York Times, 30 Oct. 1936, p. 16; Leuchtenburg, “Election of 1936,” 2818; Leuchtenburg, “When the People Spoke,” 2092. “The Keynote Speech,” New York Times 24 Jun. 1936, p. 16; Wolfskill, Revolt of the Conservatives, 158. Leuchtenburg, “Election of 1936,” 2827; Wolfskill, Revolt of the Conservatives, 163, 210.

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occasional faults of a government that lives in a spirit of charity than the consistent omissions of a government frozen in the ice of its own indifference.”64 The Washington Post called the nomination speech a “formal declaration of war” on free enterprise that “paves the way for fascism.”65 The idea of government as an agent of “charity” was quite astonishing – it necessarily meant the redistribution of resources from some citizens to others. As journalist George Creel said of Harry Hopkins, his problem is that “he never had to spend his own money.”66 The party platform echoed the re-Founding theme, with “We hold these truths to be self-evident” as its refrain, reiterating the principles of the Commonwealth Club Address on a new economic order. It mostly condemned “twelve years of Republican leadership,” and concluded that “government in a modern civilization has certain inescapable obligations to its citizens,” including “protection of the family and home; establishment of a democracy of opportunity” and “aid to those overtaken by disaster.” It pledged to protect home and family against “kidnappers and bandits” and “malefactors of great wealth.” In contrast to Republican calls for state solutions, the Democrats pledged national regulation. “If these problems cannot be effectively solved by legislation within the Constitution, we shall seek such clarifying amendments as will assure” adequate state and national power. It made no mention of the judiciary.67 In response to Republican charges that the New Deal was promoting statist “regimentation,” Roosevelt maintained that the federal government was liberating individuals from plutocratic regimentation. Vast inequalities of wealth had produced “a kind of private government, a power unto itself – a regimentation of other people’s money and other people’s lives.”68 He concluded the campaign in Madison Square Garden, saying that the malefactors had “begun to consider the government of the United States as a mere appendage to their own affairs. We know now that government by organized money is just as dangerous as government by organized mob. Never before in all our history have these forces been so united against one candidate as they are today. They are unanimous in their hate for me – and I welcome their hatred. I should like to have it said of my first administration that in it the forces of selfishness and lust for power met their match. I should like to have it said of my second administration that in it these forces met their master.”69 Administration allies in Congress used committee hearings to harass and embarrass Liberty League members and associates, early 64 65

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Nomination Speech, Philadelphia, 27 Jun. 1936, PP&A V: 230. Gary Dean Best, Pride, Prejudice, and Politics: Roosevelt versus Recovery (New York: Praeger, 1991), 132. George Creel, Rebel at Large: Recollections of Fifty Crowded Years (New York: G. P. Putnam’s Sons, 1947), 296. NPP (1936), 360–63; Sidney Milkis, “FDR, the Economic Constitutional Order, and the New Politics of Presidential Leadership,” in The New Deal and the Triumph of Liberalism, ed. Milkis and Jerome M. Mileur (Amherst: University of Massachusetts Press, 2002), 39, 59; James MacGregor Burns, Roosevelt: The Lion and the Fox (New York: Harcourt, 1956), 272. Address, Chicago, 14 Oct. 1936, PP&A V: 486. Address, New York, 31 Oct. 1936, PP&A V: 566.

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signals of the coming “Brown Scare” association of conservatism and fascism, including Internal Revenue targeting that Roosevelt would later apply to isolationists.70 Roosevelt won a victory even more overwhelming than the Republicans’ of the 1920s. Democrats increased their numbers in Congress for the fourth consecutive time, an unprecedented feat. But Roosevelt had ignored his own party as much as the Republicans, running as a liberal more than as a Democrat.71 But above all, he ran as a person. “There’s one issue in this campaign,” he told Ray Moley. “It’s myself, and people must be either for me or against me.”72 Journalist William Allen White interpreted the election as more of a rejection of Landon than a victory for Roosevelt.73 Even if his election signaled an endorsement of liberal “ideas,” one could hardly identify any particular ideas in it. Roosevelt’s caution about any programmatic commitments, particularly about the judiciary, made the 1936 mandate especially unclear.74

the sit-down strikes The year 1937 opened with public attention fixed on Flint, Michigan, where members of the United Auto Workers had occupied a General Motors plant in a “sit-down strike.” Though its extent was exaggerated by politicians and the media, the image of labor radicalism had great significance.75 Rather than picketing outside a plant, to prevent replacement workers from carrying on production, these strikers occupied the plant and refused to leave. They could thus repel police forces and “strikebreakers,” as well as sabotage valuable plant equipment. The industrial unionists of the CIO, led by John L. Lewis of the United Mine Workers, had made significant contributions to the Democrats’ campaign in 1936, and expected to be rewarded. Lewis frankly said, “The U.M.W. and the C.I.O. have paid cash on the barrel for every piece of legislation we have gotten.”76 State and local support was essential to sitdown strike success, so the auto workers waited until Frank Murphy had been 70

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Wolfskill, Revolt of the Conservatives, 94, 144, 210, 224–28, 232, 236; Arthur A. Ekirch, Jr., The Decline of American Liberalism (New York: Atheneum, 1967), 340; Leo Ribuffo, The Old Christian Right: The Protestant Far Right from the Great Depression to the Cold War (Philadelphia: Temple University Press, 1983), 178–224; Wayne S. Cole, Roosevelt and the Isolationists (Lincoln: University of Nebraska Press, 1983), 529–37; Richard T. Ruetten, “Burton K. Wheeler and the Montana Connection,” Montana 27 (1977), 14. Leuchtenburg, Franklin D. Roosevelt, 190; Burns, Roosevelt, 314. Raymond Moley, After Seven Years (New York: Harper, 1939), 343. Plesur, “The Republican Congressional Comeback,” 527. Leuchtenburg, The F.D.R. Era, 158; Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995), 17; Leuchtenburg, Supreme Court Reborn, 107; “When the People Spoke,” 2084–85; Barry Cushman, “Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s,” Buffalo Law Review 50 (2002), 73–74. Melvyn Dubofsky, “Not So ‘Turbulent Years’: Another Look at the American 1930’s,” Amerikastudien 24 (1979), 5–20. Leuchtenburg, Franklin D. Roosevelt, 189.

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inaugurated as governor of Michigan. Murphy immediately assured the strikers that he would not use force to oust them.77 Though defenders of the sit-down strike often claimed that employer resistance to the Wagner Act’s guarantee of collective bargaining provoked the method, the sit-downs had nothing to do with the Wagner Act. The UAW, like most observers, assumed that the Supreme Court was going to strike down the Act. More important, the strikers were a very small minority that would not have won a representation election even had they availed themselves of the NIRA.78 The method took the leadership of organized labor by surprise. Lewis himself never endorsed it, though he apologized for it. It appeared to be a reversion to the radical privatism or syndicalism seen in the Industrial Workers of the World and never fully abandoned by the “conservative” AFL.79 The sit-down strikers really demanded “rights” beyond those expressed in the Wagner Act. The strikers claimed that rather than violating the property rights of their employers, they were protecting their own property rights to their jobs. But they had very few advocates.80 Northwestern University Law School Dean Leon Green made the case in the New Republic that employees had by their labor earned the right to compel the negotiation of their grievances. But Green wrote of a mythical “peaceful sit-down strike.” Yale Law professor Abe Fortas also suggested that the tactic might not be illegal, and Secretary of Labor Frances Perkins concurred.81 The situation cried out for an injunction, an extraordinary remedy for an extraordinary situation.82 It was hard to fault GM for resisting the Wagner Act, so widely believed to be unconstitutional, and held to be so by the federal 77

78 79

80

81

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Sidney Fine, Sit-Down: The General Motors Strike of 1936–37 (Ann Arbor: University of Michigan Press, 1969), 148; Fine, “The General Motors Sit-Down Strike: A Re-Examination,” American Historical Review 70 (1965), 701. Fine, Sit-Down, 176, 181, 228. William M. Dick, Labor and Socialism in America: The Gompers Era (Port Washington, NY: Kennikat, 1972), 31, 38; Edward C. Kirkland, Industry Comes of Age: Business, Labor, and Public Policy, 1860–97 (Chicago: Quadrangle, 1961), 391; Jim Pope, “Worker Lawmaking, Sit Down Strikes, and the Shaping of American Industrial Relations, 1935–58,” Law and History Review 24 (2006), 22; John A. Wettergreen, “The Regulatory Policy of the New Deal,” in The New Deal and Its Legacy, ed. Robert Eden (Westport, CT: Greenwood, 1989),206; Selig Perlman, “The Basic Philosophy of the American Labor Movement,” Annals of the American Academy of Political and Social Science 274 (1951), 59. Fine, Sit-Down, 175, 235; Dubofsky, “Not So ‘Turbulent Years,’” 11. Even after the Supreme Court upheld the Wagner Act, it held that sit-down strikes were illegal, even if provoked by unfair employer labor practices – National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939). Leon Green, “The Case for the Sit-Down Strike,” New Republic, 24 Mar. 1937, p. 199; “High Court Assailed at Labor Institute,” New York Times, 15 Jun. 1937, p. 19; “What’s News,” Wall Street Journal, 27 Jan. 1937, p. 1; “President Rebukes Sloan on Parley,” New York Times, 27 Jan. 1937, p. 1. H. L. McClintock, “Injunctions against Sit-Down Strikes,” Iowa Law Review 23 (1938), 149–64, gives a more critical view.

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appellate court in Michigan.83 Moreover, Michigan was more hostile to union militancy than any other state. Its courts alone had enjoined even peaceful picketing.84 GM did obtain an injunction from a local judge, but exposure of the fact that he owned $220,000 in GM stock led the company to decline to seek the injunction’s enforcement.85 GM handled the conflict very delicately, aware of the political consequences of the 1936 election. The key factor was Governor Murphy’s unwillingness to use force. When he called out the National Guard, it was to protect the strikers against local law-enforcement agents. The strikers regarded the guardsmen as fellow strikers.86 At the end of January, GM won another injunction from local judge Paul Gadola.87 Powers Hapgood of the CIO told the strikers that injunctions were “mere slips of paper.” Murphy’s state militia kept the peace. The president pressured GM to settle, while trying to appear neutral. He gave the press the impression that he disapproved of John L. Lewis’s statement that he expected administration support as a quid pro quo for the CIO’s 1936 campaign help. But clearly the administration was on the union side. While agreeing to negotiate with Lewis at Roosevelt’s request, GM obtained a “writ of ejectment” to enforce Gadola’s injunction on February 5, 1937. That day, Roosevelt announced his plan to “pack” the Supreme Court.88

83

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85

86 87

88

Fruehauf Trailer Co. v. National Labor Relations Board, 85 F.2d 391 (1936); J. Woodford Howard, Jr., “Frank Murphy and the Sit-Down Strikes of 1937,” Labor History 1 (1960), 106; Fine, Sit-Down, 176, 193. Coreen Derifield, “Defining Peaceful Picketing: The Michigan Supreme Court and the Labor Injunction, 1900–40” (M.A. thesis, Western Michigan University, 2005). Fine, Sit-Down, 194. Unknown at the time, Governor Murphy owned over $100,000 of GM stock – ibid., 148. Fine, Sit-Down, 224, 242, 274, 282, 292. One labor historian labeled Gadola a member of the “Black Legion,” a Klan-like vigilante organization often used to break strikes (Howard, “Frank Murphy,” 113). In fact, Judge Gadola was active in breaking the Black Legion (Keith Bradsher, “Like Father, Like Son, in Judgment of U.A.W.,” New York Times, 20 Jul. 1998, p. A10). Fine, Sit-Down, 256, 264; Edson Blair, “Both Sides of the Curtain,” Barron’s, 1 Feb. 1937, p. 4.

21 The Court Fight

the plan Roosevelt-haters still claim that the president let the Japanese attack Pearl Harbor as the only way to galvanize popular support for the war he wanted. Enough circumstantial evidence of American officials’ anticipation of an attack makes the charge plausible. In fact, historians have concluded that there was too much advance warning – so mixed with conflicting signals that it was overlooked as “noise.”1 One could say the same about Roosevelt’s constitutional Pearl Harbor, the court-packing plan of 1937, which took the country by surprise despite the innumerable speculations about such a plan that had circulated even before he was elected. Several magazines had broached the possibility of court-packing during Roosevelt’s first campaign and early in his presidency. Roosevelt himself had promoted William Randolph Hearst’s film version of a political fantasy, Gabriel over the White House, in which the president induces Congress to expand the Supreme Court to fifteen justices. It had come up again in 1935, before the Court’s gold-clause decisions. Alf Landon warned late in the 1936 campaign that Roosevelt might “tamper with the Supreme Court.” Publisher Paul Block reported that Roosevelt had discussed packing the Court after Black Monday. The President twice used George Creel in Colliers magazine to suggest that he was considering packing the Court – in August of 1935 and again in December 1936 – but the articles attracted little notice. In January 1937 Donald Richberg told Washington journalist Raymond Clapper that “Roosevelt has a number of bombshells ready. . . Roosevelt is in an audacious mood and is even thinking of proposing to pack the Supreme Court by enlarging it. . .. Roosevelt is determined to curb the court and put it in its place, and will go ahead even if many people think it unwise.” Clapper did not report the story. A few days before the bombshell, Robert Jackson asked the New York State Bar Association to “suppose some ‘radical’ administration should propose to pack 1

Gordon W. Prange, At Dawn We Slept; The Untold Story of Pearl Harbor (New York: Penguin, 1982), 839–52; Roberta Wohlstetter, Pearl Harbor: Warning and Decision (Stanford: Stanford University Press, 1962).

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[the Supreme Court] with men of other vocations.” Though the Assistant Attorney General was completely uninformed about the plan, he soon became suspected of being one of its authors.2 The shock of the court-packing plan resulted primarily from its audacious insincerity. The president had made the 1936 campaign a plebiscite about himself. He responded to perceived slights from the Court in personal terms – particularly the decision in Humphrey’s Executor that had limited his removal power.3 After the 1936 re-election, Roosevelt gave Attorney General Homer Cummings the task of devising a court-curbing proposal. His deputizing of Cummings was also intensely personal. Cummings won and maintained his position as Attorney General because of his ardent loyalty to Roosevelt. A longtime Roosevelt supporter, Cummings had lobbied intensely for the Attorney Generalship, but Roosevelt chose Montana Senator David I. Walsh and proposed to send Cummings to Manila as Governor General of the Philippines. After Walsh’s sudden death the day before the inauguration, Roosevelt installed Cummings on what was understood to be a temporary basis. Cummings’s willingness to give the president the legal counsel he wanted during the banking crisis turned his probationary appointment into a permanent one. Cummings was widely regarded as a political hack. He used the Justice Department as a patronage mill, producing ill effects on the drafting and defense of New Deal legislation.4 Justice Brandeis lamented that the Court “will apparently be confronted, in a time of greatest need of help, with a Department of Justice as incompetent as was that of Mitchell Palmer.”5 Bitter that Edward

2

3

4

5

Maurice Finkelstein, “The Dilemma of the Supreme Court,” Nation, 18 Oct. 1933, pp. 428–30; Richard Lee Strout, “The New Deal and the Supreme Court,” North American Review 236 (1933), 489; Maxwell Bloomfield, Peaceful Revolution: Constitutional Change and American Culture from Progressivism to the New Deal (Cambridge, MA: Harvard University Press, 2000), 154; Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: Norton, 2010), 96, 255; “The Texts of Governor Landon’s Addresses at Madison Square Garden and Over the Radio,” New York Times, 30 Oct. 1936, p. 16 ; “Reed Cites Threat to Pack High Court,” New York Times, 8 Oct. 1936, p. 18; “Fears for High Court,” ibid., 29 Oct. 1936, p. 12; George Creel, Rebel at Large: Recollections of Fifty Crowded Years (New York: G. P. Putnam’s Sons, 1947), 289–94; Raymond Clapper diary, 20 Jan. 1937, in Raymond Clapper Papers, Box 8, LC; Robert H. Jackson, “Address,” 29 Jan. 1937, in New York State Bar Association Report 60 (1937), 292; Stephen R. Alton, “Loyal Lieutenant, Able Advocate: The Role of Robert H. Jackson in Franklin D. Roosevelt’s Battle with the Supreme Court,” William and Mary Bill of Rights Journal 5 (1997), 544. Robert Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics (New York: Vintage, 1941), 109; William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 79–81. Joseph Alsop and Turner Catledge, The 168 Days (New York: Doubleday, 1938), 24–25; Leonard Baker, Back to Back: The Duel Between F.D.R. and the Supreme Court (New York: Macmillan, 1967), 27, 155; Leuchtenburg, Supreme Court Reborn, 82–131; Robert Shogan, Backlash: The Killing of the New Deal (Chicago: Ivan R. Dee, 2006), 69–77; Peter H. Irons, The New Deal Lawyers (Princeton: Princeton University Press, 1982), 11. To Felix Frankfurter, 13 Jun. 1933, in “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter, ed. Melvin I. Urofsky and David W. Levy (Norman: University of Oklahoma Press, 1991), 523.

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Acheson, the Episcopal Bishop of Connecticut, would not permit his third marriage, Cummings refused to allow the bishop’s son, Dean, to serve as Solicitor General. The undistinguished J. Crawford Biggs got the job instead, which then went to Stanley Reed, who broke down physically under the stress of the job, and lost Humphrey’s Executor, considered an open-and-shut case.6 Cummings’s research, aided especially by Edward S. Corwin of Princeton, led him to a proposal by his predecessor, James C. McReynolds, to enable the president to add a judge to any lower federal court when a judge reached the age of seventy and did not retire.7 Cummings revised the proposal to include the Supreme Court, and to permit the president to appoint a new justice for each justice over seventy who, having served “ten years, continuously or otherwise,” did not retire. It limited the size of the Supreme Court to fifteen, which would give Roosevelt six slots thirty days after the bill was enacted. It also permitted him to appoint up to fifty lower-court judges, and provided for the reassignment of lower-court judges and the appointment of a Supreme Court “proctor” to monitor the judicial system.8 The only people whom Roosevelt and Cummings had consulted about the bill before its release were John L. Lewis of the CIO and Charlton Cogburn, the legal counsel of the AFL. Tom Corcoran and some others were informed after it was too late to change course.9 When Roosevelt briefed the Washington press corps on the morning that he sent the bill of Congress, he appeared to revel in the deceit. Journalists Joseph Alsop and Turner Catledge, the first chroniclers of the Court fight, recalled an impish Roosevelt “asking the assembled newspapermen to applaud the perfections of his scheme, to note its nicely calculated indirections and praise its effectiveness.”10 Justice was being delayed by an inadequate number of judges in the lower federal courts, Roosevelt told them. The enfeebled justices, Roosevelt claimed, could not keep up with their work, as evidenced by the large number of certiorari petitions that they denied – 717 of 867 in the last term. Greater efficiency in the lower courts would make more Supreme Court justices necessary. But he did not correlate age and ideology, except to say that “Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation.” Though the matter was “delicate,” he

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8

9

10

Leuchtenburg, Supreme Court Reborn, 64, 232; “Reed in Collapse; A.A.A. Cases Halted,” New York Times, 11 Dec. 1935, p. 1. Cummings had also played a key role in what may have been Woodrow Wilson’s greatest misstep as President, his call for a Democratic Congress in 1918. Leuchtenburg, Supreme Court Reborn, 115–16; Gerald Garvey, “Scholar in Politics: Edward S. Corwin and the 1937 Court-Packing Battle,” Princeton University Library Chronicle 31 (1969), 1–11; Garvey, “Edward S. Corwin in the Campaign of History: The Struggle for National Power in the 1930s,” George Washington Law Review 34 (1965), 219–31; Mark O’Brien, “Curbing the Court,” Princeton Alumni Weekly, 8 Mar. 2006, pp. 26–31. S. 1392, in Reorganization of the Federal Judiciary, S. Rpt. 711, 75th Cong., 1st Sess. (1937), 31. The “continuously or otherwise” provision targeted Chief Justice Hughes. Shogan, Backlash, 87; Alsop and Catledge, The 168 Days, 49; Diary entry, 24 Jan. 1937, Homer S. Cummings Papers, box 235, University of Virginia. Alsop and Catledge, The 168 Days, 67.

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repeated in his formal message to Congress that “The simple fact is that today a new need for legislative action arises because the personnel of the federal judiciary is insufficient to meet the business before them.”11

the opposition The proposal went awry immediately. Roosevelt hoped that the more tractable House of Representatives would pass the bill first, and a large majority in that body favored it. Congressman Emmanuel Celler had said in January that the Supreme Court “must be made to follow the election returns. . .. If the Court again sends back our measures there will be but one course to follow – and Congress will follow it – pack the Court.”12 But Representative Hatton Sumners of Texas, chairman of the Judiciary Committee, famously told his colleagues, “Boys, here’s where I cash in my chips.” Sumners had established his independence of the president – notably, when he scolded the administration for Cummings’s poorly drafted crime-control bill. The House Speaker, Majority Leader, and Rules Committee chairman backed him up. Sumners meanwhile pressed his solution to the Court problem, to permit the justices to “retire” rather than resign, so that their salaries would be constitutionally protected from diminution.13 But Congress escaped its gold-clause obligations by cutting off the right to sue, and similarly enacted confiscatory taxation to prevent AAA processing-tax refunds, making even this expedient doubtful. Roosevelt recognized his misstep and began to shift his strategy almost immediately.14 Though ultimately unrepentant and even triumphant, Roosevelt admitted in 1941 that “I made one major mistake when I first presented the plan. I did not place enough emphasis upon the real mischief.”15 He began by explaining why he had decided to proceed with this bill rather than a constitutional amendment. He had not yet seen a proposed amendment that everyone agreed would solve the problem. An amendment would be too easy to block, he claimed – one house of the legislatures of thirteen states, with only 5 percent of the nation’s population, could thwart the will of the nation. He told his friend Charles C. Burlingham, “you could make five million dollars as easy as rolling off a log by undertaking a campaign to prevent ratification by one house 11 12

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Press conference, 5 Feb. 1937, PP&A VI: 42; Message to Congress, 5 Feb. 1937, ibid., 51. “Celler in Warning to Supreme Court,” New York Times, 11 Jan. 1937, p. 9. Celler eventually came to oppose Roosevelt’s proposal. Lionel V. Patenaude, “Garner, Sumners, and Connally: The Defeat of the Roosevelt Court Bill in 1937,” Southwestern Historical Quarterly 74 (1970), 38–39; Anthony Champagne, “Hatton Sumners and the 1937 Court-Packing Plan,” East Texas Historical Association Journal 26 (1988), 46–49; Michael Nelson, “The President and the Court: Reconsidering the CourtPacking Episode of 1937,” Political Science Quarterly 103 (1988), 284; ”Justices Can Quit at 70 on Full Pay,” New York Times, 6 Feb. 1937, p. 10. Franklyn Waltman, “Hostile Public Reaction to Court Plan Causes Administration to Shift Strategy,” Washington Post, 13 Feb. 1937. Introduction, 1941, PP&A VI: lxv.

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of the legislature, or even the summoning of a constitutional convention in 13 states for the next four years. Easy money.”16 Roosevelt had convinced himself that the reactionary forces whom he had vanquished in 1936 would renew their campaign and stop any proposed amendment. Roosevelt especially feared the revival of the American Liberty League. The League had grown out of the Association Against the Prohibition Amendment, and had enjoyed great success in promoting the Twenty-First Amendment. Moreover, the interpretation of any successful amendment would remain in the hands of the decrepit justices who had misread the existing Constitution.17 But Roosevelt exaggerated the obstacles to an amendment. Cummings, again, had failed to think the problem through. The Justice Department had reported that Congress could establish the state ratifying conventions, which would obviate state legislative resistance. Roosevelt also privately claimed to fear that a proposed constitutional amendment would cause the Democrats to lose congressional seats in 1938 – betraying a determination to avoid direct discussion of the substance of the issue even after the 1936 landslide.18 An amendment would suggest that the Constitution had a fixed meaning. “It is well worth contemplating that Roosevelt came to view the Constitution itself as fundamentally irrelevant to his immediate problem,” one scholar writes. “The Constitution was clearly to be worshipped from afar, but up close it was a stumbling block to be circumvented, not a structure to be lived in and remodeled to suit.”19 As he had said in his first inaugural, he regarded the Constitution as “so simple and so practical that it is possible always to meet extraordinary needs by change in emphasis and arrangement without loss of essential form.” This implied that it was so simple and practical as to mean anything one wanted it to mean. Moving in the Senate first would not be easy. Vice-President John Nance Garner indicated his disapproval when the administration bill was introduced in the Senate by holding his nose with one hand and gesturing thumbs-down with the other.20 The chairman of the Senate Judiciary Committee, Henry F. Ashurst of Arizona, had called court-packing the “prelude to tyranny”; he now sheepishly recanted.21 George Norris, longtime scourge of the federal judiciary, admitted his distaste but also went along.22 Burton Wheeler of Montana became the leader of the opposition. Though he had been the first major backer of Roosevelt’s 1932 candidacy, he had longstanding personal differences with 16 17

18 19 20 21

22

Roosevelt to C. C. Burlingham, 23 Feb. 1937, DHRP I: 210. Press conference, 12 Feb. 1937, PP&A VI: 77; Fireside Chat, 9 Mar. 1927, ibid., 122; David E. Kyvig, “The Road Not Taken: FDR, the Supreme Court, and Constitutional Amendment,” Political Science Quarterly 104 (1989), 463–81. Raymond Clapper diary, 8 Feb. 1937; Leuchtenburg, Supreme Court Reborn, 111. Kyvig, “Road not Taken,” 480. Patenaude, “Garner, Sumners, and Connolly,” 37; Alsop and Catledge, The 168 Days, 67. William E. Leuchtenburg, “The Origins of Franklin D. Roosevelt’s ‘Court-Packing’ Plan,” Supreme Court Review (1966), 396; Diary entry, 19 Feb. 1937, in A Many-Colored Toga: The Diary of Henry F. Ashurst, ed. George F. Sparks (Tucson: University of Arizona Press, 1962), 370. “Norris Dislikes Court Plan, but May Accept It,” New York Herald-Tribune, 12 Feb. 1937.

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Roosevelt and relished his reputation for defying great powers such as the mining companies of his home state.23 In terms that paraphrased (probably inadvertently) the Commonwealth Club Address, Wheeler said that Roosevelt, who “used to be one of the barons,” now acted “like a king trying to reduce the barons.”24 Wheeler had warned against a court-packing plan over a year earlier, and was already angry about Cummings’s patronage in his home state.25 The Republicans, without even one-quarter of the seats in each house of Congress (and many Republicans were progressive New Dealers), made an early and remarkably disciplined resolution to keep silent and let the Democrats destroy the proposal. The Republican National Committee did a great deal of work behind the scenes to coordinate the opposition, but kept the party publicly out of sight. Having seen its campaign against Roosevelt’s re-election backfire, the Liberty Leaguers had learned a lesson.26 In the face of growing opposition, Roosevelt tried to rally the Democratic party, and “went to the people.” In a Democratic dinner celebrating the 1936 victory, he stressed the urgency of the Court problem, which was standing in the way of resolving an economic crisis as severe as that of slavery. “Economic freedom for the wage earner and the farmer and the small businessman will not wait, like emancipation, for forty years,” he said. “It will not wait for four years. It will not wait at all.” Natural disasters and strikes posed immediate threats, and the country demanded that they be dealt with – “NOW,” he repeatedly yelled.27 Ironically, the economic recovery that had helped re-elect Roosevelt now undermined the urgency of his Court campaign. The overuse of the “emergency” justification had begun to take its toll. As E. B. White jested, “His ‘now’ remarks were a giveaway – the utterances of a petulant savior. America doesn’t need to be saved today; it can wait till tomorrow. Meanwhile, Mister, we’ll sleep on it.”28 Nor could Roosevelt plausibly claim that he confronted “economic

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27 28

Marian C. McKenna, “Prelude to Tyranny: Wheeler, FDR, and the 1937 Court Fight,” Pacific Historical Review 62 (1993), 407; Richard T. Ruetten, “Burton K. Wheeler and the Montana Connection,” Montana 27 (1977), 10; “Wheeler Attacks Court Plan,” Washington Post, 14 Feb. 1937. Shesol, Supreme Power, 224; Joseph P. Lash, Dealers and Dreamers: A New Look at the New Deal (New York: Doubleday, 1988), 298. Burton K. Wheeler, Yankee from the West (New York: Doubleday, 1962), 294–302; Shesol, Supreme Power, 321, 224; Lash, Dealers and Dreamers, 292; Burton Wheeler to Jim Farley, 10 May 1937, DHRP I: 555; McKenna, “Prelude to Tyranny,” 408. Karl A. Lamb, “The Opposition Party as Secret Agent: Republicans and the Court Fight, 1937,” Papers of the Michigan Academy of Science, Arts, and Letters 46 (1961), 530–50; Alsop and Catledge, The 168 Days, 97–100; Joseph Alsop and Robert Kintner, “‘Let Them Do the Talking,’” Saturday Evening Post, 28 Sep. 1940, p. 18; George Wolfskill, The Revolt of the Conservatives: A History of the American Liberty League, 1934–40 (Westport, CT: Greenwood, 1974 [1962]), 253. Address, Democratic Victory Dinner, 4 Mar. 1937, PP&A VI: 113. E. B. White, “Notes and Comment,” The New Yorker, 13 Mar. 1937, p. 15. James Truslow Adams made a similar point in “The Court Issue: Is Democracy Menaced?” New York Times Magazine, 21 Feb. 1937, p. 23.

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royalists” when progressives such as Wheeler led the opposition. Homer Cummings outrageously claimed that “the real objection” to the plan was that “Those who wish to preserve the status quo want to retain on the bench judges who may be relied on to veto progressive measures.” He projected his own deviousness onto his opponents.29 The president gave a more extensive justification – the most elaborate of the campaign – in a “fireside chat” on March 9, 1937. Though they have become part of the lore of the Roosevelt presidency, such radio speeches were quite rare – he had delivered only eight heretofore.30 He warned again that “the dangers of 1929 are again becoming possible, not this week or this month, perhaps, but within a year or two,” and complained that the Court was not pulling in tandem with the two other branches. He gave a brief history of judicial review, claiming that it had not become a serious problem until the Republican Court began striking down progressive legislation.31 “The court has been acting not as a judicial body but as a policymaking body,” he said, and referred to the liberal dissenters on the Court. He quoted the Chief Justice’s 1907 comment – that “We are under a Constitution, but the Constitution is what the judges say it is” – as proof of the danger of judicial oligarchy. “We must take action to save the Constitution from the Court and the Court from itself,” he urged. “We must find a way to appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution – not over it. In our courts we want a government of laws and not of men.” He noted that the Democratic platform pledge of 1936 had called for an amendment if necessary, and argued that it was unnecessary and full of pitfalls. Roosevelt returned to his initial premise that the problem was the age of the justices – that his plan would “save our national Constitution from hardening of the judicial arteries.”32 Roosevelt’s belated call for “a government of laws and not of men” – a principle long derided by progressives – came too late to dispel suspicion that he simply wanted his men on the Court. The Senate Judiciary Committee began hearings on the bill the next day. These further undermined the President’s efforts. The opposition deliberately protracted them in order to shape public opinion against the proposal, and Ashurst, who nominally supported the plan, permitted this stratagem.33 The hearings would span six weeks and produce 2,000 pages of testimony and exhibits. The administration got off to a bad start, with the Attorney General continuing to stress judicial infirmity and crowded dockets, though Cummings continued to delude himself and FDR on the progress of the plan. Assistant Attorney General Robert Jackson made a more 29

30

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Radio address, 14 Feb. 1937, in Selected Papers of Homer Cummings, ed. Carl B. Swisher (New York: Scribner’s, 1939), 150. Richard W. Steele, Propaganda in an Open Society: The Roosevelt Administration and the Media, 1933–41 (Westport, CT: Greenwood, 1985), 22. As with his omission of slavery in his partisan histories, Roosevelt skipped over Dred Scott in this story. Fireside chat, 9 Mar. 1937, PP&A VI: 122. Baker, Back to Back, 152; Diary entry, 26 Apr. 1937, in A Many-Colored Toga, 374.

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forceful and effective presentation, trying to convince the Senators that the Court had insulted them. He told them that Congress’s “power to reduce the Supreme Court to a mere phantom court was no accident,” but a necessary check on the abuse of judicial power. Like Roosevelt, he stressed the need for “cooperation” by all three branches of the government. Vital legislation, he said, was “in danger of being lost in a maze of constitutional metaphors.”34 Edward S. Corwin, the administration’s chief academic consultant, appeared petulant and pedantic, and thereby dashed whatever chance he had of being named to one of the seats the plan might create.35 Irving Brant, editor of the St. Louis Star-Times and Madison biographer, warned that “You cannot allow five men to set themselves up in irresponsible aloofness and rule 135 million people by judicial fiat.” If liberal reforms were frustrated, American democracy would be overthrown, replaced by something worse than “the nice and orderly dictatorship that some of the admirers of Mussolini are thinking about.” Brant denounced the Court as an obstacle to “liberal democracy,” which he defined as “positive and dynamic, bent on reform, devoted to a purpose which must be fulfilled by legislation.” The administration closed its case quickly, hoping to end the hearings as soon as possible.36 The opponents’ presentation followed a discernable strategy. They called Democrats and liberals who testified that they had heretofore supported Roosevelt. They frequently discussed amendments and other possible solutions to the judicial problem. They emphasized the unanimity of decisions such as Schechter. Since the president had not criticized the particular, closely divided opinions of 1936, the plan’s opponents did not have to defend them. The progressive opponents repeatedly pointed out that even if the president chose reliable liberals, this would be only a temporary solution – the plan did not address the problem of judicial power. They called attention to the Court’s protection of “civil liberties” as indicating the benefit of an independent judiciary. It did not help the administration that Mussolini and Hitler applauded the proposal.37 Though Herbert Hoover broke ranks and delivered a speech, “Hands Off the Supreme Court,” Republicans maintained silence. Justice McReynolds, claiming that he was not aware that a reporter was in the room, attacked the plan in an address to his fraternity. Depicting the New Dealers as sore losers, he said, “the evidence of good sportsmanship is that a man who has a chance to present a fair case to a fair tribunal must be a good sport and accept the outcome.” He told the audience, “I try to protect the darky in the hills of Georgia as well as the man of 34

35 36 37

Reorganization of the Federal Judiciary, Hearings before the Committee on the Judiciary, U.S. Senate, 75th Cong., 1st Sess. (Washington: G.P.O., 1937), 38, 44; diary entry for 10 and 11 Mar. 1937, Homers S. Cummings Papers, box 235; Alsop and Catledge, The 168 Days, 123. The term “constitutional metaphors” was probably taken from Thomas Reed Powell’s mocking review of James M. Beck – Powell, “Constitutional Metaphors,” New Republic, 11 Feb. 1925, pp. 314–15. Garvey, “Scholar in Politics,” 6–9; O’Brien, “Curbing the Court,” 30–31. Reorganization of the Federal Judiciary, 382, 386; Alsop and Catledge, The 168 Days, 124. “Rome Sees Trend to Fascism in Roosevelt’s Court Move,” Washington Post, 7 Feb. 1937.

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wealth in a mansion on Fifth Avenue.” The president’s opponents wanted nobody to represent them less than this justice.38 The justices would not agree to testify in person against the plan. Justice Brandeis, who firmly opposed the plans prompted Wheeler to solicit a letter from Chief Justice Hughes.39 Hughes composed a letter that killed whatever was left of Roosevelt’s argument that the Court was inefficient. “The Supreme Court is fully abreast of its work,” he wrote. “There is no congestion of cases upon our calendar,” he continued, providing statistics on the matter and explaining how the Court decided to hear appeals. “An increase in the number of justices. . . apart from any question of policy, which I do not discuss,” he wrote, “would not promote the efficiency of the Court. It is believed that it would impair that efficiency so long as the Court acts a unit. There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.” As to suggestions that an enlarged Court could be divided into sections, he opined that the Constitution’s provision for “one Supreme Court” precluded this. He told Wheeler that he had not been able to consult with all of the brethren, but he was “confident that it is in accord with the views of the justices.” Van Devanter and Brandeis had explicitly approved the letter.40 Wheeler’s presentation of the Hughes letter on March 22, 1937, was a surprise equal to Roosevelt’s initial proposal. Contemporaries widely regarded it as a political masterstroke. Particularly galling to the administration was the fact that Hughes, who had rebuffed the President’s early efforts to secure the cooperation of the judiciary, now offered an advisory opinion against the courtpacking bill. Roosevelt sought an expanded Court that would work with him as the Court of Appeals had when he was Governor of New York.41 The New Republic called Hughes’s letter “an advisory opinion run riot.”42 Hughes had certainly made a “political” move, but one of institutional self-defense – exactly the sort that Madison expected to arise from the system of checks-and-balances, in which “ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Even the 38

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“M’Reynolds Asks Fairness to Court as ‘Fair Tribunal,’” New York Times, 17 Mar. 1937, p. 1. The decorous editors changed “darky” to “backwoodsman.” Donald Whisenhunt, “Roosevelt, McReynolds, and the Court Fight,” Artes Liberales 5 (1977), 5; James E. Bond, I Dissent: The Legacy of Chief [sic] Justice James Clark McReynolds (Fairfax: George Mason University Press, 1992), 102; William E. Leuchtenburg, “The Nine Justices Respond to the 1937 Crisis,” Journal of Supreme Court History 1 (1997), 62. Richard D. Friedman, “Chief Justice Hughes’ Letter on Court-Packing,” Journal of Supreme Court History 1 (1997), 79; The Autobiographical Notes of Charles Evans Hughes, ed. David J. Danelski and Joseph S. Tulchin (Cambridge, MA: Harvard University Press, 1973), 304–06; Wheeler, Yankee from the West, 328. Hughes to Wheeler, 21 Mar. 1937, in Reorganization of the Federal Judiciary, 38–40. The Autobiographical Notes of Charles Evans Hughes, 306; Alsop and Catledge, The 168 Days, 155; Paul A. Freund, “Charles Evans Hughes as Chief Justice,” Harvard Law Review 81 (1967), 28; Barry Cushman, “The Hughes Court and Constitutional Consultation,” Journal of Supreme Court History (1998) I: 79–111; Wheeler, Yankee from the West, 330. “The Chief Justice’s Letter,” New Republic, 7 Apr. 1937, 254.

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advocates of a strictly limited judicial review recognized Madison’s point that the Court must have power in “cases of a judiciary nature.”43 And though liberals protested Hughes’s move, it had been instigated by Brandeis, for whom every opinion was an advisory opinion.44

the parrish switch Hughes’s letter really made little difference in the fate of Roosevelt’s plan. Though some proponents continued to make age-efficiency arguments, the administration had largely abandoned that approach. The letter changed no votes and was quickly forgotten after its initial éclat. A week later it was eclipsed by the Court’s dramatic reversal of its minimum-wage decisions of the previous term. In West Coast Hotel v. Parrish, a chambermaid sued her employer for wages paid below that of Washington state’s minimum-wage law. Justice Roberts now voted to uphold a law nearly identical to the one he had voted to strike down in the previous year – a decision that so elated the Chief Justice, Roberts told his biographer, that the “Bearded Icicle” nearly hugged him.45 The previous year the Court had not reconsidered Adkins, Hughes noted. Now it did, particularly in light of “many states having similar laws. . . the close division by which the decision in the Adkins case was reached, and the economic conditions which have supervened.” He struck a severe blow to due process by declaring, “The Constitution does not speak of liberty of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Court does not recognize an absolute and uncontrollable liberty.”46 He pointed out that the Court had upheld many labor restrictions as valid exercises of the police power, and returned to the paternalist view in Muller that they were “particularly applicable in relation to the employment of women in whose protection the state has a special interest.” He also obtusely returned to the argument that there was no difference between wage and hour restrictions. Hughes conceded something to the idea that Washington’s was a “fair wage” rather than a “minimum wage” law – one that took into account the value of the labor performed. Nevertheless, he rejected Adkins as “a departure from the application of the principles governing” labor laws, which were permissible so long as they were not arbitrary or capricious. And “What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers?” he concluded. Since underpaid women were

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Federalist 51; 27 Aug. 1787, in The Records of the Federal Convention of 1787, ed. Max Farrand, 3 vols. (New Haven: Yale, 1911), II: 430. Since Wheeler had been a leading opponent of Hughes’s appointment as Chief Justice, he was understandably reluctant to contact him. Brandeis is said to have dialed the phone for him. Merlo J. Pusey, “Justice Roberts’ 1937 Turnaround,” Supreme Court Historical Society Yearbook (1983), 105. West Coast Hotel v. Parrish, 300 U.S. 379 (1937), 389–91.

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likely to seek relief, “the community is not bound to provide what is in effect a subsidy for unconscionable employers.”47 George Sutherland dissented for the four conservatives. He had little to say on the merits of the Washington law other than to refer to what he had written in Adkins on such matters as the wage-hour distinction. He objected to the majority’s reconsideration of the case in light of “the economic conditions which have supervened.” “The meaning of the Constitution does not change with the ebb and flow of economic events,” Sutherland maintained. He implied that the majority had yielded to political rather than legal arguments. “The suggestion that the only check upon the exercise of the judicial power,” he said, quoting a Stone dissent, “is the judge’s own faculty of self-restraint, is both ill-considered and mischievous. Self-restraint belongs in the domain of will and not of judgment.” If “the words of the Constitution mean today what they did not mean when written,” then the Constitution had lost the “essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”48 Sutherland concluded with a reaffirmation of the principle of sex equality, which would condemn a minimum-wage law for women alone only more than it would one for men and women alike. The public widely perceived that Roberts had switched in response to the court-packing plan. This is almost certainly untrue, as Roberts had determined to vote to uphold the Washington law in December, before the plan had even been formulated. Justice Stone’s illness led the Court to delay its decision – without him, it would have been a 4–4 tie, sustaining the Washington Supreme Court’s decision. When Roosevelt announced his plan, Chief Justice Hughes again delayed it lest it appear to be a political capitulation. Though some suspected that the switch had already taken place, this chronology was not firmly established until Merlo Pusey published his biography of Hughes in 1951.49 But that Roberts had “switched” is equally certain. In 1945, Roberts left a colophon letter with Felix Frankfurter claiming that he had been ready to overrule Adkins in Tipaldo, but that the “disingenuous” and “timid” New York pleadings prevented him from doing so.50 If Frankfurter did not fabricate this letter, published upon Roberts’s death, he doubtless contributed to its unconvincing effort to save the face of the Court.51 Roberts certainly did switch,

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50

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Ibid., 398–99. See Appendix A. Ibid., 402–03. Max Lerner, “The Great Constitutional War,” Virginia Quarterly Review 18 (1942), 540; Pusey, “Justice Roberts’ 1937 Turnaround,” 106; Merlo J. Pusey, Charles Evans Hughes, 2 vols. (New York: Macmillan, 1951), 757; The Autobiographical Notes of Charles Evans Hughes, 311. Felix Frankfurter, “Mr. Justice Roberts,” University of Pennsylvania Law Review 104 (1955), 314. Michael Ariens, “A Thrice-Told Tale, or Felix the Cat,” Harvard Law Review 107 (1994), 620– 76; Richard D. Friedman, “A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger,” University of Pennsylvania Law Review 142 (1994), 1985–95. The Roberts memo and Frankfurter’s 1937 diary were stolen from Frankfurter’s papers in the Library of Congress.

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though not in response to the court-packing plan. More likely because of the 1936 election, the sit-down strikes, or other ambient factors – the court-curbing “noise” of Roosevelt’s first term.52 Frankfurter himself assumed that Parrish was a craven capitulation to political pressure.53 Roberts told Pusey, “Who knows what causes a judge to decide as he does? Maybe the breakfast he had has something to do with it.”54 This dollop of realism may well explain Roberts’s own behavior, for he never had a coherent judicial philosophy.55 It was no false modesty of Roberts to say, “Who am I to revile the good God that he did not make me a Marshall, a Taney, a Bradley, a Holmes, a Brandeis or a Cardozo?”56 He was a “spite nomination” who ended up on the Court because of the progressives’ abuse of John J. Parker. Whatever the explanation for Roberts’s switch, it did not signal a great shift in American constitutional law. One could hardly say that it spelled the end of due process, which had had its ups and downs for several decades already. Lochner, an unusual case to begin with, appeared to have been overruled in Bunting, and was restored in Adkins. The uncertainty allowed many states to revise or continue to enforce their minimum-wage laws – as Hughes noted in Parrish, “Throughout this entire period the Washington statute now under consideration has been in force.”57 Indeed, some minimum-wage advocates did not want the Court to reconsider Adkins, lest it make a clear decision that would stop the operation of such laws.58 State minimum-wage laws for women were as nothing compared to the truly grand projects of the New Deal.59 The president correctly told reporters, “I do not think there is any news in it,” and later quipped that the constitutional “no-man’s land” had become a “Roberts land.”60 Senator Edward Burke and others pointed out that the derided “no-man’s land” was in fact a realm of personal freedom that the American people had ordained the Constitution to preserve.61 52

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57 58 59

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John W. Chambers, “The Big Switch: Justice Roberts and the Minimum-Wage Cases,” Labor History 10 (1969), 65–73. Frankfurter to Roosevelt, 30 Mar. 1937, in Roosevelt and Frankfurter: Their Correspondence, ed. Max Freedman (Boston: Little, Brown, 1968), 392. Pusey, “Justice Roberts’ 1937 Turnaround,” 106. Roberts was paraphrasing a trope of some of the more skeptical of the realists, often attributed to Thomas Reed Powell. See the aptly titled biography, Charles A. Leonard, A Search for a Judicial Philosophy: Mr. Justice Roberts and the Constitutional Revolution of 1937 (Port Washington, NY: KTO, 1971); William Lasser, “Justice Roberts and the Constitutional Revolution of 1937 – Was There a ‘Switch in Time’?” Texas Law Review 78 (2000), 1366–68. Frankfurter, “Mr. Justice Roberts,” 312; Chambers, “The Big Switch,” 68; Richard D. Friedman, “Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformations,” University of Pennsylvania Law Review 142 (1994), 1945. West Coast Hotel v. Parrish, 391. Chambers, “The Big Switch,” 59. David P. Currie, The Constitution in the Supreme Court: The Second Century, 1888–1986 (Chicago: University of Chicago Press, 1990), 236. Press conference, 13 Apr. 1937, PP&A VI: 153; Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War (New York: Fordham University Press, 2002), 422–23. Reorganization of the Federal Judiciary, 57, 892; William L. Ransom, Graduation Address, Albany Law School, 4 Jun. 1936, Vital Speeches of the Day 2 (1936), 628–31; Bernard Kilgore, “The No Man’s Land,” Wall Street Journal, 5 Jun. 1936, p. 2.

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Roosevelt persisted in his effort to pack the Court, and the Senate continued to resist and prolong its hearings. They became rather formulaic and tedious, a stage for law professors. Occasionally a witness stood out and called attention to the deeper issues at stake. The journalist Dorothy Thompson responded to the common argument that the Supreme Court was making it impossible for the government to meet the demands of the people, and thus endangered democracy.62 Rather, she said, fascism resulted from the failure to maintain the rule of law. Autocracies fell in the face of the frustration of popular demands, but democracies perished when government was too responsive to the people. The framers of the Constitution realized this, and thus provided for checks on excessive democracy – not a “three-horse team.” Thompson denied that Roosevelt had any dictatorial aspirations but, like many progressives, she warned that he was using the methods of an aspiring dictator, and would provide useful means for future dictators.63 Walter Lippmann reacted similarly. One of the leading lights of progressive thought in the 1910s and 1920s, he now saw progressivism as part of a global drift toward totalitarian statism. “Throughout the world, in the name of progress, men who call themselves communists, socialists, fascists, nationalists, progressives, and even liberals, are unanimous in holding that government with its instruments of coercion must, by commanding the people how they shall live, direct the course of civilization and fix the shape of things to come,” he wrote in The Good Society. This was clear enough in Russia, Italy, and Germany, but even “in other lands where men shrink from the ruthless policy of these regimes, it is commonly assumed that the movement of events must be in the same direction. Nearly everywhere the mark of the progressive is that he relies at last upon the power of officials to improve the conditions of men. . .. For virtually all that now passes for progressivism in countries like England and the United States calls for the increasing ascendancy of the state: always the cry is for more officials with more power over more and more of the activities of men.” Returning to the phrasing of the Declaration of Independence that Roosevelt had tried to co-opt, he argued that “the assumptions of this whole movement are not so self-evident as they seem.” He pointed out that they repudiated a twomillennia tradition that sought “to find a law which would be superior to arbitrary power” – constitutionalism, in a word. “Men have sought it in custom, in the dictates of reason, in religious revelation. . .. This is the meaning of the long debate about natural law.” He lamented that current conditions may have brought about the end of this great tradition.64 More immediately, he lambasted

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“Hopkins Charges Court Dictation,” New York Times, 2 Mar. 1937, p. 10. Reorganization of the Federal Judiciary, 860–73; Dorothy Thompson, “In What Do We Believe?” Ladies’ Home Journal 54 (Sep. 1937), 13. Walter Lippmann, The Good Society (Boston: Little, Brown, 1937), 3–6; Frederic Krome, “From Liberal Philosophy to Conservative Ideology? Walter Lipppmann’s Opposition to the New Deal,” Journal of American Culture 10 (1987), 57–64; Eileen Marie Bowman, “Walter Lippmann’s Reaction to FDR’s 1937 Court-Packing Plan” (M.A. Thesis, Michigan State University, 1978).

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Roosevelt for concealing the issue during the campaign, giving the people “no opportunity to pass upon” it. “If the American people do not rise up and defeat this measure, then they have lost their understanding of constitutional government.”65

the wagner act cases Two weeks after Parrish, the Court upheld the National Labor Relations Act, a decision that indicated a genuinely revolutionary turn in constitutional law, and one more plausibly related to the court-packing plan, or other external factors, especially the sit-down strikes. The five National Labor Relations Board cases made the court-packing plan look like Roosevelt’s payoff to organized labor. The Wagner Act may not have been any better drafted in constitutional terms than the NIRA or the AAA, but the government did improve its litigation strategy. The Board managed its own cases, to avoid depending on the incompetents in Cummings’ Justice Department.66 The leading case involved the Jones & Laughlin Steel Corp., the nation’s fourth-largest steel producer, with operations in many states and 22,000 employees. Having learned from the “sick chicken” experience, the Board’s attorneys made sure that their first targets were serious ones. “Among our early hearings were those of companies named Kiddie Cover, a manufacturer of children’s overalls, and Infant Sox,” NLRB chairman J. Warren Madden recalled. “We had a dread of finding ourselves in the Supreme Court with such cases.”67 Jones & Laughlin also ranked among the most fiercely anti-union firms in the country, maintaining what former President Tom Girdler called a “benevolent dictatorship” in its company town, Aliquppa, which union organizers called “Little Siberia.”68 The company challenged the Board’s order that it reinstate and repay workers fired for union activity, and cease and desist from anti-union discrimination. Chief Justice Hughes wrote for the same five-justice majority of Parrish. To justify the act as a regulation of interstate commerce, he emphasized the gigantic scale and multistate operations of the steel company. Since nearly all of the relevant precedents involved railroads, Hughes tried to argue that a strike in Aliquippa would be as disruptive to the national economy as a rail strike. (Notably, the Court unanimously upheld the Wagner Act with regard to interstate transportation.69) Congress had the power to prevent such “burdens and obstructions” to commerce. As in the railroad labor cases, “intrastate activities, by reason of close and intimate relation to interstate commerce, may fall within 65 66 67

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Walter Lippmann, “The Seizure of the Court,” New York Herald-Tribune, 9 Feb. 1937. Irons, New Deal Lawyers, 228. J. Warren Madden, “The Origin and Early History of the N.L.R.B.,” George Washington Law Review 29 (1960), 244; Memo on Selection of Test Cases, N.L.R.B. General Counsel, 26 Sep. 1935, DHRP VIII: 815. Richard C. Cortner, The Wagner Act Cases (Knoxville: University of Tennessee Press, 1964), 58. Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142 (1937).

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federal control.” The steel company’s “far-flung activities” meant that “it is idle to say the effect would be indirect or remote.”70 He also noted that the antitrust laws had been applied to labor unions. Hughes thus moved from one kind of direct/indirect analysis to another. The antitrust laws had been applied to conspiracies by both producers and workers that restrained interstate commerce. The Wagner Act took labor obstructions as the reason to restrict employers. Strikes directly interfered with interstate commerce, so Congress restricted employer activity that had nothing to do with interstate commerce but might cause strikes that did. The act moved regulation from direct to indirect objects that obstructed commerce.71 In its oral argument, Board counsel emphasized the rash of sit-down strikes as an illustration of the effect of labor unrest on interstate commerce.72 There was something perverse in this emphasis on the effect of strikes on interstate commerce, considering that the Wagner Act, like the NIRA before it, had been a prime cause of such strikes. As the steel company counsel argued, the Board “calls attention to the fact that strikes may and frequently do produce an inhibitory effect on the movement of interstate trade to and from the affected area. This is the fundamental error in [their] argument, in that it assumes that it need only establish the connection between strikes and the stoppage of commerce. There has been no strike or labor dispute in the present case.” The Board really argued that anti-union tactics “might have led to dissatisfaction, which might have led to a labor dispute, which might have led to a strike and a consequent interruption of interstate commerce.” As the dissenters would note, “There is no conspiracy to interfere with commerce unless it can be said to exist among the employees who became members of the union.”73 On the due process question, Hughes completed a process that he had begun in his 1915 Coppage dissent. The Court had upheld the liberty of contract or employment-at-will principle in Adair in 1908. In Coppage, Hughes claimed that states could outlaw yellow-dog contracts without overthrowing that principle. He repeated this when the Court upheld the Railway Labor Act in 1930. The Court did so again – though for the first time outside of railroad labor – and Hughes again dismissed Adair and Coppage as “inapplicable.”74 One could see 70 71

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National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), 31, 37, 41. The next step would be to restrict union activity that might provoke employer resistance that might lead to strikes that might disrupt interstate commerce. In a sense, this is what Congress did in the Taft–Hartley Act of 1947. Union lawyers resurrected liberty-of-contract/due process arguments against it, which the Court rejected in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949). Drew D. Hansen, “The Sit-Down Strikes and the Switch in Time,” Wayne Law Review 46 (2000), 50, 110; Jim Pope, “Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935–58,” Law and History Review 24 (2006), 39. National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937), 100. National Labor Relations Board v. Jones & Laughlin Steel Corp., 45; Friedman, “Switching Time,” 1903, 1951. Congress had prohibited the yellow-dog contract in the Norris-La Guardia Act of 1932, but the Court had not yet reviewed it.

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the radical implications of Jones & Laughlin’s extension of the commerce power and repudiation of due process in the companion cases, which involved much smaller firms. The Fruehauf Trailer Corp. did barely $3 million of business and employed 900 workers; the third test case involved an even smaller Virginia manufacturer of less than one-half of one percent of the national men’s clothing market. Hughes gave no indication of how the gigantic, railroad-like and farflung character of Jones & Laughlin applied to these small actors. As the dissenters noted, the obliteration of the Friedman-Harry Marks Clothing Company, let alone a strike against it, would have a negligible effect on the national economy. Hughes simply upheld the application of the Wagner Act “for the reasons stated in our opinion” in Jones & Laughlin.75 Justice McReynolds composed the dissenting opinion in these three cases, drafted over a long period of time with the three other conservatives. As in the gold clause cases, he embellished the written opinion in his court oration.76 He included the text of the “terse, well-considered and sound” circuit court opinions, all of which, as expected, had held the act unconstitutional. McReynolds reiterated the decades-old distinction between manufacturing and commerce. He added a swipe at the independent regulatory agency’s procedures, “unfettered by rules of evidence,” and also denied that Congress could have exercised directly the power that it had delegated to the Board. If it could, McReynolds concluded, the Board’s “power would extend it into almost every field of human industry.” He argued that a “chain of indirect and progressively remote events” would eventually present such questions as whether “a mill owner [could] be prohibited from closing his factory or discontinuing his business because so to do would stop the flow of products to and from his plant in interstate commerce? May employees in a factory be restrained from quitting” because it would similarly affect interstate commerce? “Almost anything – marriage, birth, death – may in some fashion affect commerce.”77 The fifth Labor Board case illustrated the danger that a limitless commerce power could pose to all kinds of liberty. The Associated Press contested the Wagner Act as an infringement of the First Amendment, imperiling journalistic freedom by forcing newspapers to retain biased reporters and editors. Justice Roberts dismissed this challenge, noting that “the act does not compel the petitioner to employ anyone.” Publishers could continue to “discharge for any reason other than union activity.” But the Board defined “union activity.” “The publisher of a newspaper has no special immunity from the application of 75

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National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49 (1937), 57; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 49 (1937), 75. The Court would adopt a similar tactic in Brown v. Board of Education when it applied its ruling on segregation in public education to dissimilar institutions. The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in F.D.R.’s Washington, ed. Dennis J. Hutchinson and David J. Garrow (Chicago: University of Chicago Press, 2002), 189–212; “M’Reynolds Sharp in Dissent Speech,” New York Times, 13 Apr. 1937, p. 20. National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 76, 90–94, 97–99.

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general laws,” he concluded. But the Wagner Act was hardly a “general law.” Rather, it was meant to promote the interests of organized labor, and this interest group had a clear political bias. Justice Sutherland for the dissenters noted that the protections of the First Amendment were even stricter than those of the Fifth. “‘Liberty’ is a word of wide meaning and, without more, would have included the various liberties guaranteed by the First Amendment,” he observed. But First Amendment liberties were “guaranteed without [due process] qualification.” The amendment “put them in a category apart and [made] them incapable of abridgement by any process of law.”78 Though this sounded like what would later be called the “preferred freedoms” view of the First Amendment, it was actually part of Sutherland’s traditional, “indivisible concept of liberty.”79 Considering the unprecedented efforts of the Roosevelt administration to manipulate public opinion via propaganda and outright threats to revoke radio licenses of its critics, this was no hysterical vision.80 Though many authors claim that Hughes and Roberts did not switch in these cases, it is hard to escape the conclusion that they did, and that they did so as a result of political pressure.81 The Wagner Act was not a borderline case like the Washington minimum-wage law; it was all but universally conceded to be unconstitutional – the administration expected and hoped that the Court would overturn it. It was not just Roberts, but Hughes also, who switched from Carter Coal to Jones & Laughlin. One could also say that five justices switched from Schechter, considering the vast delegation of legislative power in the Wagner Act.82 The common perception at the time was that Jones & Laughlin was another effort by Hughes to derail the court-packing plan.83 “I think the Court was doing some electioneering against the packing plan in the 78 79

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Associated Press v. National Labor Relations Board, 301 U.S. 103 (1937), 132, 134–35. Samuel R. Olken, “The Business of Expression: Economic Liberty, Political Factions and the Forgotten First Amendment Jurisprudence of Justice George Sutherland,” William and Mary Bill of Rights Journal 10 (2002), 249, 280–81, 309, 336. Elisha Hanson, “Official Propaganda and the New Deal,” Annals of the American Academy of Political and Social Science 179 (1935), 176–86; Alan Brinkley, Voices of Protest: Huey Long, Father Coughlin and the Great Depression (New York: Vintage, 1983), 100; Steele, Propaganda in an Open Society, 17–60. The participants in this debate are legion. For a recent review, see “The Debate Over the Constitutional Revolution of 1937,” American Historical Review 110 (2005), 1046–1115 and David A. Pepper, “Against Legalism: Rebutting an Anachronistic Account of 1937,” Marquette Law Review 82 (1998), 63–154. On the Wagner Act cases in particular, see Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), 131–89; Freund, “Charles Evans Hughes,” 34. Thus the Realist law professor T. R. Powell expected the Wagner Act to be struck down 6–3 or unanimously – “The Next Four Years: The Constitution,” New Republic, 13 Jan. 1937, p. 319. McKenna, Franklin Roosevelt and the Great Constitutional War, 327; Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956), 459; William E. Leuchtenburg, “Comment on Laura Kalman’s Article,” in “The Debate,” 1091; Joseph L. Rauh, in The Making of the New Deal: The Insiders Speak, ed. Katie Louchheim (Cambridge: Cambridge University Press, 1983), 58.

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decision,” Postmaster General Jim Farley observed.84 Though initially enraged, Roosevelt himself chuckled that conservative newspapers that had damned the Wagner Act as clearly unconstitutional now praised the Court’s decision to uphold it. He justifiably boasted in 1941 that “It would be a little naïve to refuse to recognize some connection between these 1937 decisions and the Supreme Court fight.” But it was fantasy for him to call his exquisitely indirect attack on the judges a “frontal attack. . . upon the philosophy of the majority of the Court.”85 Hughes sacrificed the Constitution to save the Court, when he could have saved both, due to his own political miscalculation. The public might well have applauded a demonstration of judicial defiance of an increasingly unpopular presidential threat, rather than an apparently craven capitulation. “After today I feel like finding some honest profession to enter,” Felix Frankfurter telegraphed Roosevelt. “I would have had more respect for the Court if it had gone down fighting and snarling after the manner of Justice McReynolds,” Harold Ickes confided to his diary. “Hughes and Roberts ought to realize that the mob is always ready to tear and rend at any sign of weakness.” Hughes’s fear for the reputation of the court responded more to progressive-intellectual criticism than to popular criticism, which had never been very great. Public opinion polls showed a consistently favorable view of the Court.86 Hughes mimicked the President, who made the fatal mistake of taking on the judiciary – the mistake that his elder cousin, TR, had made in 1912, but that his intellectual elder cousin, Woodrow Wilson, assiduously avoided. The Court switches did increase popular opposition to the court-packing plan.87 As South Carolina Senator James F. Byrnes told the President, “Why run for a train after you’ve caught it?”88 The end loomed when Justice Van Devanter announced his retirement on May 18, 1937, giving Roosevelt the opportunity to pack the Court in the traditional way. That same day (another indication of the devilish political acuity of the Justices, the administration concluded) the Senate Judiciary Committee voted, 10–8, to report the bill 84

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James A. Farley, Jim Farley’s Story: The Roosevelt Years (New York: Whittlesey House, 1948), 80. Press Conference, 13 Apr. 1937, PP&A VI: 153; Introduction, ibid., 1937, lxvi. Frankfurter to Roosevelt, 12 Apr. 1937, in Frankfurter and Roosevelt, 397; 30 Mar. 1937, The Secret Diary of Harold L. Ickes: The Inside Struggle, 1936–39 (New York: Simon & Schuster, 1954), 107; Burt Solomon, F.D.R. v. The Constitution: The Court-Packing Fight and the Triumph of Democracy (New York: Walker, 2009), 147; William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton: Princeton University Press, 1994), 317; Barry Cushman, “Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s,” Buffalo Law Review 50 (2002), 67–76. Gregory A. Caldeira, “Public Opinion and the U.S. Supreme Court: FDR’s Court-Packing Plan,” American Political Science Review 81 (1987), 1148. There was a slight increase in support for the plan after the Labor Board decisions – Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009), 233. Alsop and Catledge, The 168 Days, 152.

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unfavorably. The majority’s report, published a month later, was all but a bill of impeachment, Ickes noted.89 It pointed out that because of its convoluted age focus, the bill would not solve the purported problem of delays of justice. Extra judges would go to courts with old judges, even though courts with older judges were in fact the most efficient. The report also warned of the dangers of “a flying squadron of itinerant judges” who might be assigned to secure politically directed outcomes in particular cases. The real purpose of the proposal, it concluded, was to induce older judges to step down, and this pressure threatened the constitutional principle of checks and balances – a principle “immeasurably more important, immeasurably more sacred to the people of America, indeed, to the people of all the world than the immediate adoption of any legislation however beneficial.” Though not technically unconstitutional, the bill displayed “constitutional impropriety. . . an unwarranted influence accorded the appointing agency, contrary to the spirit of the Constitution. . . in violation of the organic law.” The report dispensed with the alleged precedents for the plan, saying that this was the first time that “a proposal to alter the decision of the court by enlarging its personnel has been so boldly made. Let us meet it. Let us now set a salutary precedent that will never be violated.” The bill threatened “personal government” and “autocratic dominance.” The report denied that the Court had dealt unfairly with socioeconomic measures, and reviewed the Court’s defense of “personal” liberties. Its peroration called the bill “a needless, futile, and utterly dangerous abandonment of constitutional principle. . . presented to the Congress in a most intricate form and for reasons that obscured its real purpose.” The proposal was “without precedent and without justification” and would “subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary, the only certain shield of individual rights. It contains the germ of a system of centralized administration of law,” the committee warned. “Under the form of the Constitution it seeks to do that which is unconstitutional. Its ultimate operation would be to make this government one of men rather than one of law.” It concluded, “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”90

the social security cases Near the end of its momentous term, the Court upheld the Social Security Act. With the due process clauses neutralized and the commerce clause unbound, the Court now unleashed the taxing and general welfare powers. The Court first

89

90

Ibid., 17 Jun. 1937, in Secret Diary of Harold L. Ickes, II: 152; Jackson, Struggle for Judicial Supremacy, 194. Reorganization of the Federal Judiciary.

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upheld the federal–state unemployment insurance program. The vast unemployment of the Great Depression had shown that unemployment was a matter of general concern. “The parens patriae has many reasons – fiscal and economic as well as social and moral – for planning to mitigate disasters that bring these burdens in their train,” Justice Cardozo concluded for a five-man majority. Cardozo gave reassurance that there remained limits to Congress’s taxing powers. “We do not say that a tax is valid . . . if it is laid on the condition that a state may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power.”91 McReynolds dissented, quoting extensively from President Franklin Pierce’s 1854 veto of a bill to provide for the indigent insane. Sutherland also dissented. Though he had written the opinion in the Mellon case that upheld federal grants-in-aid, he saw this act as compelling states to adopt federal policies. Justice Butler added that the “tax and credit” scheme permitted the federal government “to induce, if indeed not to compel, state enactments for any purpose within the realm of state power, and generally to control state administration of state laws.”92 In upholding the exclusively national old-age pension program, Justice Cardozo completed Roberts’s suggestion in Butler that taxation for the general welfare was a grant of power beyond those enumerated in Article One, section eight. But “The line must still be drawn between one welfare and another, between particular and general.” He claimed that “There is a middle ground or certainly a penumbra” in which Congress had discretion to determine. By way of analogy he brought up the issue of whether a protective tariff was of general or particular benefit. “Nor is the concept of the general welfare static,” Cardozo noted. “Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.”93 The authors of the Social Security Act had taken great care to separate the taxing and spending provisions of the program – titles VIII and II.94 Representative Allen Treadway of Massachusetts had said that “This attempt to delude the Supreme Court is rather childish”; but it succeeded.95 Congress had gone beyond the revenue-sharing or grant-in-aid approach of earlier social welfare programs. The old-age pension system was completely national – even determinedly independent states could not opt out of it. It struck a fatal blow to 91 92 93 94

95

Steward Machine Co. v. Davis, 301 U.S. 548 (1937), 587, 590. Ibid., 616–17. Helvering v. Davis, 301 U.S. 619 (1937), 640, 641. Homer S. Cummings memorandum on the constitutionality of the Social Security bill, 13 Apr. 1935, DHRP V: 650; Sylvester J. Schieber and John B. Shoven, The Real Deal: The History and Future of Social Security (New Haven: Yale University Press, 1999), 48; Edwin W. Witte, The Development of the Social Security Act: A Memorandum (Madison: University of Wisconsin Press, 1963), 146; Eduard A. Lopez, “Constitutional Background to the Social Security Act of 1935,” Social Security Bulletin 50 (Jan. 1987), 10–11. Social Security: A Documentary History, ed. Larry DeWitt et al. (Washington: CQ Press, 2008), 68.

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the system of “competitive federalism,” which had limited governmental power by permitting states to offer more advantageous business climate to employers.96 But only Justices Butler and McReynolds dissented, in one sentence, on Tenth Amendment grounds. Roosevelt appeared to have won the Court fight.

96

John O. McGinnis, “The Original Constitution and Its Decline: A Public Choice Perspective,” Harvard Journal of Law and Public Policy 21 (1997), 204; Michael Greve, The Upside-Down Constitution (Cambridge, MA: Harvard University Press, 2012).

22 The Abortive Third New Deal

the court-packing revival Roosevelt persisted in his effort to expand and pack the Supreme Court despite the Court’s reversals and the opening of Van Devanter’s seat. Roosevelt worried that the conversion of Hughes and Roberts might not last – that the justices espoused an expedient “shotgun liberalism,” as The Nation put it.1 Roosevelt had good reason to doubt the permanence of the switch. The Court had vacillated on minimum wages, making a permanent settlement of that issue hard to believe. Nobody could tell that Parrish meant the end of economic due process forevermore. Many lower courts had interpreted the Court’s earlier liberal decisions (Nebbia and Blaisdell) narrowly, and might do likewise with the Wagner Act cases, particularly since the latter were more unprecedented than the former.2 Hughes’s evasion of old precedents made even the Jones & Laughlin victory uncertain.3 Justice Roberts did revert to a more conservative position in the years after his switch.4 Above all, Roosevelt wanted more than just victories, by margins narrow or wide. As court-packing chroniclers Joseph Alsop and Turner Catledge put it, “he wanted a Court which would ‘cooperate’ with the White House. He needed six new justices who would be friendly and approachable, men with whom he could confer,” such as those on the New York Court of Appeals.5 The craftiness of the court-packing plan has obscured the 1 2

3

4

5

“Is the Supreme Court Going Liberal?” Nation, 3 Apr. 1937, p. 367. David A. Pepper, “Against Legalism: Rebutting an Anachronistic Account of 1937,” Marquette Law Review 82 (1998), 66, 110; Barry Cushman, “Lost Fidelities,” William and Mary Law Review 41 (1999), 107–28; C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–47 (New York: Macmillan, 1948), 54. Drew D. Hansen, “The Sit-Down Strikes and the Switch in Time,” Wayne Law Review 46 (2000), 56; Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: Norton, 2010), 438; Richard D. Friedman, “Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation,” University of Pennsylvania Law Review 142 (1994), 1970. Charles A. Leonard, “A Revolution Runs Wild: Mr. Justice Roberts’ Last Four Years on the Supreme Court,” Supreme Court Historical Society Yearbook (1980), 90; Daniel E. Ho and Kevin M. Quinn, “Did a Switch in Time Save Nine?” Journal of Legal Analysis 2 (2010), 1–45. Joseph Alsop and Turner Catledge, The 168 Days (New York: Doubleday, 1938), 155.

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political philosophy that Roosevelt brought to the fight. His repeated stress on the Court’s failure to “pull in tandem” in the “three-horse team” of the federal government served as a homely metaphor for a deeper, Wilsonian view of the Constitution. Roosevelt rejected the separation-of-powers, checks-and-balances basis of the Constitution for a cooperative, organic one – the Newtonian for the Darwinian basis of politics, as Wilson had put it. Such constitutional safeguards had become unnecessary in a fully democratic America. “Government is not a machine, but a living organism,” he quoted Wilson in his appeal for a reorganization of the bureaucracy.6 When Publius recommended such “auxiliary precautions” to prevent the government from becoming too powerful, he observed, “What is government itself but the greatest of all reflections on human nature” – by “reflection” meaning a judgment, a recognition of the depravity of man.7 As a neglected historian of this neglected factor in the Court fight put it, for Roosevelt, government was not a reflection on, but “an exuberant expression of human nature,” in its innate goodness.8 More historians have recognized the intensely personal nature of Roosevelt’s determination to carry on the fight. Interpreting the 1936 election as a personal mandate, he remained convinced that he would win because “the people are with me,” as he repeatedly reassured his increasingly nervous aides. This reflected not just vanity, arrogance, or vindictiveness but a progressive, plebiscitary view of the president as the embodiment of public opinion, both reflecting and shaping it.9 Roosevelt saw himself as the “anointed agent of Providence,” as one historian has described it, or as an agent of “History,” as Wilson would have.10 As Wilson fought for the League of Nations in tenacious defiance of congressional opposition, so Roosevelt continued the Court fight, even to the ruin of his administration.11 He claimed that democracy itself was at stake.12 Roosevelt argued that the Court’s unwillingness to cooperate was making it impossible for the government to meet the demands of the people, and that this frustration would lead to fascism. He told Arthur Krock of the New York Times

6 7 8

9

10

11

12

“A Recommendation for Legislation,” 12 Jan. 1937, PP&A V: 674. Federalist 51. Torbjorn Sirevag, “Rooseveltian Ideas and the 1937 Court Fight: A Neglected Factor,” Historian 33 (1971), 590. Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman & Littlefield, 2005), 213; Charles Kesler, “The Public Philosophy of the New Freedom and the New Deal,” in The New Deal and Its Legacy, ed. Robert Eden (Westport, CT: Greenwood, 1989), 159. Michael Nelson, “The President and the Court: Reinterpreting the Court-Packing Episode of 1937,” Political Science Quarterly 103 (1988), 280; Richard J. Bishirjian, “Croly, Wilson, and the American Civil Religion,” Modern Age 23 (1979), 36. In a sense, the League of Nations defeat caused the Court-packing crisis. John Hessin Clarke resigned from the Court in 1922 to carry on the campaign for American membership in the League. George Sutherland took his place. Morton J. Frisch, “Roosevelt the Conservator: A Rejoinder to Hofstadter,” Journal of Politics 25 (1963), 361–72.

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that he had saved the country from Huey Long, but that “federal action obstructed by the Supreme Court” might produce “a new, more appealing and even more ruthless demagogue who would “abolish American democracy for years.”13 Roosevelt told Congress in 1940, “You are well aware that dictatorships. . . have originated in almost every case in the necessity for drastic action to improve internal conditions in places where democratic action for one reason or another has failed to respond to modern needs and modern demands.”14 Whatever the accuracy of his historical argument, the framers’ Constitution had anticipated overly responsive, not under-responsive, government as the congenital defect of republican regimes. Roosevelt also kept up the Court fight because he had pledged the next available seat on the Court to the Senate majority leader, Joseph Robinson of Arkansas. A loyal Democrat (Al Smith’s running-mate in 1928), Robinson had supported the New Deal whole hog. But he was a conservative, and aged sixty-five. His appointment would thus have made a mockery of the claim that the Court needed young blood or more liberal views. The Nation denounced Robinson as “the epitome of what we should not have in a Supreme Court justice. . . a conservative southern provincial Democrat [who] represents the ruling class of Arkansas.”15 After a delay that irritated the Senator, Roosevelt told Robinson that he must get Congress to add at least four new seats to the Court if he wanted Van Devanter’s vacant seat. The majority leader began to push for a compromise bill to enable the President to appoint one new justice for every one over seventy-five who did not retire, but not more than one per calendar year. As Robinson cracked the whip and cajoled Senate Democrats, Roosevelt hosted a retreat for all 407 Democratic members of Congress (three women excepted) on Jefferson Island in the Chesapeake.16

opposition and defeat But even if Robinson could muster a majority, he faced a filibuster in the minority-rule Senate, a defiant House of Representatives, and many other obstacles. Roosevelt’s relations with the media had soured since his first term, and the press corps particularly resented his attempts to manipulate the court13

14

15 16

Arthur Krock, “The President Discusses His Political Philosophy,” New York Times, 28 Feb. 1937, p. 33. Annual Message to Congress, 3 Jan. 1940, in PP&A IX: 1; James Roosevelt, draft speech, ca. 20 Jan. 1938, DHRP XXI: 423. “Robinson Will Not Do!” The Nation, 29 May 1937, p. 617. 17 Jun. 1937, The Secret Diary of Harold L. Ickes: The Inside Struggle, 1936–39 (New York: Simon & Schuster, 1954), II: 153; Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (New York: Fordham University Press, 2002), 472; William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 147–54.

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packing story.17 The bill never enjoyed majority popular support, and critical New Deal constituencies opposed it or gave it only lukewarm endorsement.18 Organized labor presented a weak front.19 The labor press lost interest in the plan as soon as the Supreme Court upheld the Wagner Act.20 Contrary to expectations, the Jones & Laughlin decision increased rather than diminished labor militancy. The sit-downs were especially unpopular, and many conservatives noted the parallel of Roosevelt’s contempt for the Supreme Court and the strikers’ disregard of law.21 Though U.S. Steel had accepted the CIO in March 1937, the “little steel” firms, led by Tom Girdler of Republic Steel, continued to resist. On Memorial Day, several hundred picketers at the Republic Steel plant in Chicago provoked the police, who went berserk and killed six fleeing strikers. Roosevelt replied by calling down “a plague on both your houses,” alienating CIO head John L. Lewis.22 The AFL gave formal but tepid support, suspicious of the influence of the rival federation in the New Deal. Farm groups also opposed the plan. The alliance of urban workers and farmers had always been difficult to maintain.23 Farmers retained a tradition of respect for private property and law-and-order; moreover, they had obtained what they wanted in benefit payments, and had no interest in raising the cost of farm labor. This conflict of interest could become a direct confrontation, as 17

18

19

20

21

22

23

Richard W. Steele, Propaganda in an Open Society: The Roosevelt Administration and the Media, 1933–41 (Westport, CT: Greenwood, 1985), 33, 44; Burton K. Wheeler, Yankee from the West (New York: Doubleday, 1962), 326. Barry Cushman, “Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s,” Buffalo Law Review 50 (2002), 38; Samuel R. Fulkerson, “Electoral Opposition to the Supreme Court ‘Packing’ Plan of 1937” (M.A. thesis, University of North Carolina, 1986; Robert Shogan, Backlash: The Killing of the New Deal (Chicago: Ivan R. Dee, 2006), 209–30; Shesol, Supreme Power, 426. E. Kimbark MacColl, “The Supreme Court and Public Opinion: A Study of the Court Fight of 1937” (Ph.D. diss., University of California at Los Angeles, 1953), 387–97. James C. Duram, “The Labor Union Journals and the Constitutional Issues of the New Deal,” Labor History 15 (1974), 232. Frank Kent, “Ominous Cooperation,” Baltimore Sun, 10 Feb. 1937; Raymond Clapper diary, 7 Jun. 1937, in Raymond Clapper Papers, Box 8, LC; Reorganization of the Federal Judiciary, Hearings before the Committee on the Judiciary, U.S. Senate, 75th Cong., 1st Sess (Washington: G.P.O., 1937), 1666; James C. Duram, “Supreme Court Packing and the New Deal: The View from Southwestern Michigan,” Michigan History 52 (1968), 18; Hansen, “The Sit-Down Strikes,”105; Jim Pope, “Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935–58,” Law and History Review 24 (2006), 55. “President Quotes,” New York Times, 30 Jun. 1937, p. 1; Arthur Krock, “Stronger Labor Policy Indicated by President,” ibid., 4 Jul. 1937, p. B3; Robert H. Zieger, John L. Lewis: Labor Leader (Boston: Twayne, 1988), 128; Donald S. McPherson, “The ‘Little Steel’ Strike of 1937 in Johnstown, Pennsylvania,” Pennsylvania History 39 (1972), 219–38; Melvyn Dubofsky, “Not So ‘Turbulent Years’: Another Look at the American 1930’s,” Amerikastudien 24 (1979), 16. Joanne Dillon Lichty, “The Roosevelt Court-Packing Plan: The Role of Farm and Labor Groups” (M.A. thesis, American University, 1969), 82, 121–24; Fulkerson, “Electoral Opposition,” vii, 37, 100; Alsop and Catledge, The 168 Days, 119; MacColl, “The Supreme Court and Public Opinion,” 401–15; Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (Chicago: University of Chicago Press, 1999).

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when Pennsylvania dairy farmers, deprived of an important market by a sit-down strike at the Hershey chocolate plant, forcibly ejected the strikers.24 Minority ethnic and religious groups also balked at the court-packing plan. Court supporters repeatedly claimed that an independent judiciary protected minority-group rights. Though they disputed this, Roosevelt’s allies could not dispel the argument.25 The Court’s record on black civil rights spawned a variety of views. Blacks on the whole supported the President, and the Court did not appear to be far out of line with national public opinion on the race question.26 Some segregationists praised the Court for having saved the prostrate South from “Black Reconstruction.” Senator Tom Connally often took this position, though one of his witnesses, the mayor of Austin, maintained that the Ku Klux Klan, not the Supreme Court, had saved the white South.27 Carter Glass made an impassioned speech against the plan, and warned that a packed court might endanger white supremacy. He castigated one of Roosevelt’s “political janizaries,” a “visionary incendiary” (Harold Ickes) who “recently reproached the South for providing separate public schools for the races.” Such radical New Dealers threatened “a new Force Bill for the South,” he said, praising the Court for validating segregation and disfranchisement laws.28 While some segregationists shared Glass’s fears, many did not and remained avid Roosevelt loyalists. The Southern public supported the plan more than the rest of the country. While only one member of the Senate Judiciary Committee (Connally) represented a former Confederate state, the final vote on the plan indicated that Southern Senators were the most supportive of the plan.29

24

25

26

27

28

29

Richrd S. Kirkendall, “The New Deal and Agriculture,” in The New Deal: The National Level, ed. John Braeman et al. (Columbus: Ohio State University Press, 1975), 103; Robert S. Bird, “C.I.O. Strike Ends at Hershey Plant,” New York Times, 13 Apr. 1937, p. 1; “Upheaval in Utopia,” Time, 19 Apr. 1937, p. 17. William J. Donovan, “An Independent Supreme Court and the Protection of Minority Rights,” American Bar Association Journal (1937), 254–60, 295–96; Joseph P. Lash, “Answers to the Argument that the Proposal Will Lead to a Deprivation of Civil Liberties,” 3 Mar. 1937, DHRP I: 285; Reorganization of the Federal Judiciary, 42, 426, 449, 1300. Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 169; William G. Ross, “When Did the ‘Switch in Time’ Actually Occur? Rediscovering the Supreme Court’s ‘Forgotten’ Decisions of 1936–37,” Arizona Law Journal 37 (2005), 1189; Fulkerson, “Electoral Opposition,” 88; MacColl, “The Supreme Court and Public Opinion,” 379–80. Reorganization of the Federal Judiciary, 1556; Donovan, “An Independent Supreme Court,” 255; Shesol, Supreme Power, 372; Anthony J. Badger, The New Deal: The Depression Years, 1933–40 (New York: Hill and Wang, 1989), 270. “Senator Carter Glass’s Radio Attack on President’s Proposals for Court Change,” New York Times, 30 Mar. 1937, p. 16; “Virginian Is Bitter,” ibid., p. 1. Ickes disputed this, saying that “I have never gone further than to advocate a fair deal for everyone” – diary entry, 30 Mar. 1937, Secret Diary of Harold L. Ickes II: 105 James T. Patterson, Congressional Conservatism and the New Deal (Lexington: University of Kentucky Press, 1967), 97, 252. A greater proportion of Southern and border-state senators opposed the motion to recommit (kill) the Hatch–Logan bill than senators from the rest of the country – CR 81 (22 Jul. 1937), 7381.

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Religious groups also opposed the plan. Contemporaries and historians noted widespread Catholic opposition to the plan, though they often exaggerated it. The Roman Catholic Church took no official position on the issue, but many prominent clerics and laymen denounced it as a threat to religious liberty. Protestant organizations formally opposed the plan, and no prominent Protestant cleric endorsed it.30 Ethnic identities reinforced religious ones. Harold Ickes noted widespread Catholic opposition and complained of the “professional Irish who can’t be reached by an appeal to their reason.”31 Catholics highlighted the Court’s protection of religious schools against state prohibition in the 1923 Pierce decision. German Lutherans recalled the Nebraska English-only law that the Court had struck down. Traditional Judeo-Christian principles played no small part in the development of American constitutionalism. New Deal liberals tended to secularism, and easily connected such religious obscurantism with political suspicion of progressivism. The president’s allies saw religious opposition in the very idea of “constitutionalism.”32 Many progressives believed that American “constitutionworship” was not merely a metaphor, but a psychological disorder. Edward S. Corwin, in his tercentennial address at Harvard, distinguished “the Constitution as Instrument and as Symbol” – the former being rational and scientific, the latter irrational and religious. “The modern mind, confident in the outlook afforded by science and its achievements,” he said, saw the Constitution as an instrument, and assumed that “man is the master of his fate, and able to impart a desired shape to things and events.” This view, he claimed, animated the Founders, who were part of the rationalistic Enlightenment, and were “almost scandalously secular.” Their Constitution was “an instrument of popular power – sovereignty, if you will – for the achievement of progress.” But in the antebellum period, the pre-scientific tradition, rooted in “primitive man’s terror of a chaotic universe,” had turned the Founders’ instrument into a “barrier of custom, magic, fetish, tabu,” a power-limiting symbol, wielded mostly to protect the interests of the Slave Power and Big Business.33 Max Lerner, editor of the Nation, extended Corwin’s analysis. The Nation avidly boosted the Court-packing plan, and exaggerated popular support for its own ecrasez l’infame editorial position.34 Lerner stressed the irrational aspect of the Constitution’s “fetish,” characteristic of “neurotic behavior, in the life of savages, in the heavily charged symbolic atmosphere of religion and politics.” 30

31 32 33

34

William G. Ross, “The Role of Religion in the Defeat of the 1937 Court-Packing Plan,” Journal of Law and Religion 23 (2007), 629–72; Gene M. Gressley, “Joseph C. O’Mahoney, FDR, and the Supreme Court,” Pacific Historical Review 40 (1971), 197; James J. Kenneally, “Catholicism and the Supreme Court Reorganization Proposal of 1937,” Journal of Church and State 25 (1983), 469–89. Diary entry, 20 Mar. 1937, Secret Diary of Harold L. Ickes, 97; 26 Mar. 1937, ibid., 104. Burton K. Wheeler, Yankee from the West (New York: Doubleday, 1962), 335. Edward S. Corwin, “The Constitution as Instrument and as Symbol,” American Political Science Review 30 (1936), 1071–85. Shogan, Backlash, 122.

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The American tribe had transferred its reverence from the Bible to the Constitution, and the justices of the Supreme Court had become the high priests of this cult, ministering in the service of “the mercantile and industrial class.” Constitution-worship served these classes and provided the masses with psychological reassurance against the fear and insecurity of modern industrial life. Lerner thus combined the old insight of Hobbes with the more recent Freudian approach of the legal realist Jerome Frank, who explained that men and societies sought in the certainty of law “the childish desire to recapture a father-controlled world” of their infancy. “This sort of womb-retreat is no unknown thing to social psychology,” Lerner argued. It showed that the American people were incipient fascists, whose middle class was “fear-ridden, standardized, negativist in its outlook, tenacious of symbols.”35 Liberal Nation readers would easily see this pathology among Catholics who listened to Father Coughlin and supported Franco in the Spanish Civil War. The profound contempt for the demos in these works indicated that “industrial democracy” enthusiasts would not entrust their Constitution – an instrument of sovereign power – to them, nor to their chosen representatives. Lerner chided the administration for failing to take into account popular reverence for the Constitution and Court, though “to be sure, the people were wrong” in this attitude. Rather, they hoped to place sovereign power in an elite corps of enlightened administrators, whose programs the Supreme Court was now frustrating.36 A particularly trenchant depiction of the court fight as a religious crisis came from the iconoclastic Yale Law School Realist, Thurman Arnold, in his 1937 work, The Folklore of Capitalism. The business elite of America contrived a laissez-faire mythology and used the Constitution to prevent government regulation, abetted especially by the high priesthood of the Supreme Court. The Court interpreted the Constitution, Arnold wrote, as Polybius described the Roman augurs – able to find whatever answer, on either side of any question, that agreed with their predilections.37 His severest sarcasm came in comparisons to the Middle Ages, when the feudal aristocracy manipulated Bible and Church to maintain its power. “Nothing in the Middle Ages compares for sheer fantasy with the holding company,” he wrote. The Supreme Court, like the medieval scholastic universities, prevented the practical solution of social problems if such solutions contradicted their religious beliefs. Now the bourgeois business class that shattered the medieval system had erected one of its own. The New Deal presented a direct challenge to the laissez-faire creed, and had “created more spiritual discomfort than had been known since Darwinism collided with the

35

36

37

Max Lerner, “Constitution and Court as Symbols,” Yale Law Journal 46 (1937), 1290–1319; Lerner, “The Great Constitutional War,” Virginia Quarterly Review 18 (1942), 530–45; Jerome Frank, Law and the Modern Mind (Gloucester, MA: Peter Smith, 1970 [1930]), 19. Lerner, “Great Constitutional War,” 542; David Riesman, in The Making of the New Deal: The Insiders Speak, ed. Katie Louchheim (Cambridge, MA: Harvard University Press, 1983), 75. Thurman Arnold, The Folklore of Capitalism (New Haven: Yale University Press, 1937), 29, 46, 113.

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Christian religion. Every priestly organization threw itself into the breach. The campaign of 1936 was a regular revival meeting.” After the Court fight, “a clear note of common sense is beginning to be heard.” The New Deal was in the process of creating a new class, which would in time establish a new, positivegovernment creed to replace the laissez-faire myth.38 The court-packers’ response to the civil liberties issue indicated the shift from natural rights to entitlements in New Deal liberalism. Father John A. Ryan, the “Right Reverend New Dealer,” parried the religious-liberty argument by criticizing the Court for neglecting the provision of “economic rights and liberties.”39 Delaware Senator James Hughes, an administration loyalist, said that “too much stress has been placed” on the Bill of Rights. “I think we are liable to lose sight also of the fact that our citizens have other rights that are important; that is, the right to employment, the right to live, the right to provide against suffering.” Such provisions were “quite as sacred as the matter of the free press and a free voice in public affairs; almost as important as religious liberty.”40 Jerome Frank had advised the administration to adopt a new view of freedom of the press. The public’s “right to be informed” was now threatened not by the government, but by the anti-New Deal bias of privately owned media. Thus he proposed legislation requiring the press to print government material.41 The outstanding example of the transformation of rights into entitlements came in the support that groups such as the American Civil Liberties Union gave to the Wagner Act. Formed in opposition to federal power that restricted free speech during the First World War, the ACLU now embraced federal power as necessary to protect organized labor against private economic power.42 The Court fight effectively came to an end on July 14, 1937, when Senator Robinson was found dead of a heart attack – induced, many surmised, by the strain of hauling the president’s plan through a filibuster in the stifling heat of a capital summer. He may have had the pledges of a majority of the Senators, but not enough to end debate, and those pledges died with him. The same day, Hatton Sumners reiterated his firm opposition to taking up the bill in the House.43 Roosevelt initially intended to carry on the fight, but did so in a way that many Senators believed interfered in their choice of a majority leader to

38

39 40 41 42

43

Ibid., 326, 328, 37, 392; Douglas Ayer, “In Quest of Efficiency: The Ideological Journey of Thurman Arnold in the Interwar Period,” Stanford Law Review 23 (1971), 1085. Ross, “The Role of Religion,” 651; MacColl, “The Supreme Court and Public Opinion,” 378. Reorganization of the Federal Judiciary, 1303. Steele, Propaganda in an Open Society, 45. Cletus E. Daniel, The American Civil Liberties Union and the Wagner Act: An Inquiry into the Depression-Era Crisis of American Liberalism (Cornell: ILR Press, 1981); Jerold S. Auerbach, Labor and Liberty: The La Follette Committee and the New Deal (Indianapolis: Bobbs-Merrill, 1966), 213. Cecil Edward Weller, Jr., “Joseph Taylor Robinson: Keystone of Franklin D. Roosevelt’s Supreme Court ‘Packing’ Plan,” Southern Historian 7 (1986), 23–30; Turner Catledge, “House in Outburst,” New York Times, 14 Jul. 1937, p. 1; “Sumners Takes Stand in House Against Supreme Court Bill,” Wall Street Journal, 14 Jul. 1937, p. 2.

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replace Robinson. Negotiations for a compromise proposal came to naught. Another blow came when an erstwhile Roosevelt stalwart, New York Governor Herbert Lehman, urged Senator Robert Wagner, another presidential ally, to oppose court-packing.44 Roosevelt finally permitted Vice President Garner to negotiate a settlement with Burton Wheeler. Garner parlayed it into what the president regarded as an abject surrender by his disloyal running-mate. On July 22, the Senate voted to bury the plan by a 70–20 majority. “The President has been beaten and beaten badly on his Court proposal,” Harold Ickes concluded.45

reorganization and purge The court-packing plan emboldened a congressional opposition to Roosevelt that had been simmering through his first term.46 It scuttled Roosevelt’s effort to reorganize the executive branch. The rapid growth of the federal bureaucracy (43 percent increase in civil personnel since 1932) called for greater coordination. Roosevelt especially sought control of the independent regulatory commissions, whose officers the Supreme Court had shielded from removal in the Humphrey case. Theodore Roosevelt had called for their subordination to the President in 1908, and began the trend toward executive-led rather than congressionally initiated reorganization. To address the issue, Roosevelt appointed a Committee on Administrative Management, known as the Brownlow Committee, staffed by three eminent progressives – Louis Brownlow, Luther Gulick, and Charles Merriam. The Committee worked closely with Roosevelt, to ensure identity of his desires and their recommendations.47 As with the courtpacking plan, the Brownlow Committee conducted its work in utmost secrecy, did not consult Congress, and waited until after the 1936 election to issue its report.48 44

45

46 47

48

“Governor Lehman’s Letter,” New York Times, 20 Jul. 1937, p. 1; Turner Catledge, “Combination of Forces Defeated the Court Bill,” ibid., 25 Jul. 1937, p. 49; diary entry, 21 Jul. 1937, in The Secret Diary of Harold L. Ickes II: 166; Roosevelt to Felix Frankfurter, 22 Jul. 1937, in Roosevelt and Frankfurter: Their Correspondence, ed. Max Freedman (Boston: Little, Brown, 1968), 403–04. Lehman’s act was a surprising throwback to the pre-progressive days when state legislatures “instructed” their U.S. Senators – Jay S. Bybee, “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment,” Northwestern University Law Review 91 (1997), 515–27. Alsop and Catledge, The 168 Days, 266–94; 25 Jul. 1937, The Secret Diary of Harold L. Ickes II: 171. Patterson, Congressional Conservatism and the New Deal, 41, 190. Peri E. Arnold, “The Brownlow Committee, Regulation, and the Presidency: Seventy Years Later,” Public Administration Review 67 (2007), 1030–40; Barry D. Karl, Executive Reorganization and Reform in the New Deal: The Genesis of Administrative Management, 1900–39 (Chicago: University of Chicago Press, 1963); Karl, “Constitution and Central Planning: The Third New Deal Revisited,” Supreme Court Review (1988), 185. Richard Polenberg, Reorganizing Roosevelt’s Government: The Controversy over Executive Reorganization, 1936–39 (Cambridge, MA: Harvard, 1969), 15–21, 42.

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The Brownlow Committee, unlike its predecessors, stressed managerial effectiveness rather than economy and efficiency – making the federal government more responsive to popular demands through executive leadership. “Democracy,” as the Committee put it, meant “getting things done that we, the American people, want done in the general interest.” It proposed to give the president six executive assistants, to provide for permanent “planning” under the National Resources Planning Board, to extend and centralize the civil service system, to bring all commissions under one of twelve reorganized cabinet posts, and to modernize the budgetary system.49 When Roosevelt presented the Board’s report to Congress in January, 1937, he said that it would restore “the constitutional intent that there be a single responsible chief executive,” with “authority commensurate with his responsibilities under the Constitution.”50 The Brownlow Committee struck an awkward constitutional pose. It hearkened back to Hamilton’s calls in the Federalist for unity and energy in the executive branch.51 It decried the “independent governments” established in the independent regulatory commissions, which should more accurately be called “irresponsible” than “independent.” They constituted a “headless fourth branch of government, a haphazard deposit of irresponsible power. They do violence to the basic theory of the American Constitution that there should be three major branches of the government and only three.”52 On the other hand, it called for the centralization of much power that was constitutionally dubious to begin with. Roosevelt’s desire for “administrative management” meant the effective delivery of the entitlements outlined in his “second bill of rights” idea. It employed Hamiltonian means for ends antithetical to Hamilton’s Constitution.53 The House of Representatives had passed several bills in 1937 based on the Committee report, but the Senate, preoccupied with the Court fight, took no action. The sudden collapse of the economy in the late summer only added to popular discontent with the administration when Roosevelt summoned a special session of Congress in November.54 The reorganization bill rallied an antiadministration coalition similar to the one that defeated the Court bill, again led by Burton Wheeler. The diffuse and technical nature of executive

49

50 51

52 53

54

The President’s Committee on Administrative Management, Report (Washington: G.P.O., 1937), 1–4. Message to Congress, 12 Jan. 1937, PP&A V: 668. Stephanie P. Newbold and Larry D. Terry, “The President’s Committee on Administrative Management: The Untold Story and the Federalist Connection,” Administration and Society 38 (2006), 522–55. The President’s Committee on Administrative Management, Report, 32–40. Karl, “Constitution and Central Planning,” 188; Gary Lawson, “The Rise and Rise of the Administrative State,” Harvard Law Review 107 (1994), 1259. John Robert Moore, “Senator Josiah W. Bailey and the ‘Conservative Manifesto’ of 1937,” Journal of Southern History 31 (1965), 21–39; Richard Polenberg, “The National Committee to Uphold Constitutional Government, 1937–41,” Journal of American History 52 (1965), 582–98; Turner Catledge, “10 Points Drafted,” New York Times, 16 Dec. 1937, p. 1.

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reorganization made it more difficult to mobilize public opposition, lacking a venerable symbol such as the Supreme Court. Commission member Luther Gulick remarked in October 1937 that none of Roosevelt’s legislative proposals had been “received with such widespread and nonpartisan enthusiasm,” but executive reorganization became the most unpopular of all New Deal proposals.55 It threatened many of the same groups that had opposed the Court plan, and many others, while its benefits were remote and uncertain.56 The administration agreed to numerous exemptions in order to get the Senate to approve a bill, and then had to take up the issue again in the House. In the spring of 1938, Roosevelt’s popularity waned as the economy bottomed out from a recession even sharper than that of 1929. The increasing aggression of Hitler and Mussolini led his opponents to label the reorganization proposal a “dictator bill.” Roosevelt seemed to lose his political balance as the House considered it. His intervention in a feud among TVA directors fed the impression that he was bullying an independent agency. He then claimed that the Senate’s adoption of the reorganization bill “proves that the Senate cannot be purchased,” implying that his opponents were corrupt.57 He further alienated Southern Democrats by attributing their opposition to New Deal measures to their “feudal” socioeconomic system, which he likened to fascism.58 A week later he felt compelled to issue a statement that he had “no inclination to be a dictator” and had “none of the qualifications which would make me a successful dictator.”59 The House rejected the reorganization bill in early April, handing Roosevelt a defeat as great as that over the Court plan. The president then embarked on an unprecedented campaign to unseat incumbent Democrats whom he regarded as insufficiently liberal. The Court had frustrated his efforts to build a new administrative state. The Senate then killed his plan to curb the Court and to reorganize the bureaucracy. So the president now went after the senators individually. He acted, he told the public, “as head of the Democratic party,” which had committed itself to liberal principles in its 1936 platform. “I have every right to speak in those few instances when there may be a clear issue” between Democratic candidates.60 The campaign also proved unpopular, and added to fears of excessive executive power. His opponents again likened FDR to Hitler and Stalin by labeling the 55

56 57

58 59 60

Luther Gulick, address to Herald Tribune, 5 Oct. 1937, DHRP XXI: 272; Polenberg, “The National Committee to Uphold Constitutional Government,” 589; Polenberg, Reorganizing Roosevelt’s Government, 148. Patterson, Congressional Conservatism and the New Deal, 229. Thomas K. McCraw, T.V.A. and the Power Fight, 1933–39 (Philadelphia: J. B. Lippincott, 1971), 131; Polenberg, Reorganizing Roosevelt’s Government, 157. “Speaks to 20,000,” New York Times, 24 Mar. 1938, p. 1. “Text of the Roosevelt Statement and Letter,” New York Times, 31 Mar. 1938, p. 8. Fireside chat, 24 Jun. 1938, PP&A VII: 399; Susan Dunn, Roosevelt’s Purge: How F.D.R. Fought to Change the Democratic Party (Cambridge, MA: Belknap, 2010), 4, 29.

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effort a “purge.” As with his court campaign, Roosevelt did not simply indulge in revenge. The “purge” was a further step in the long progressive campaign against the nineteenth-century party system. Just as TR had bolted the Republican party in 1912, FDR praised the evolution from bosses in smokefilled rooms to the direct primary in the Wilsonian era. The purge also indicated the progressive animus against federalism, insofar as parties remained bottomup, state and local organs. The purge logically followed the court-packing plan and executive reorganization, part of a “third New Deal” to build an administrative state.61 Like those efforts, the purge also failed. All but one of Roosevelt’s targets won re-election, indicating that he had again drawn a bogus conclusion from the 1936 election results, mistaking a general, diffuse personal popularity for a mandate for reform. The Republicans made large gains in the general election, though many of these Republicans had come to terms with the New Deal.62

the end of the new deal Resistance to New Deal liberalism thus shifted from the Supreme Court to Congress. In response to the 1937 recession, the administration relied chiefly on fiscal and spending mechanisms that would become the predominant – but never exclusive – tools of American liberalism.63 The administration also returned to progressive roots in another demagogic but futile antitrust campaign.64 Comprehensive “planning,” such as the proposal for seven TVAs, went nowhere. The more conservative Congress did take some steps to firm up older New Deal programs. With the Supreme Court out of the way, Congress enacted a new Agricultural Adjustment Act in place of the makeshift Soil Conservation Act. It augmented the antitrust campaign with legislation to aid small business, 61

62

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Charles M. Price and Joseph Boskin, “The Roosevelt ‘Purge’: A Reappraisal,” Journal of Politics 28 (1966), 660–70; Robert Eden, “On the Origins of the Regime of Pragmatic Liberalism: John Dewey, Adolf A. Berle, and FDR’s Commonwealth Club Address of 1932,” Studies in American Political Development 7 (1993), 139; Sidney Milkis, “Franklin D. Roosevelt and the Transcendence of Partisan Politics,” Political Science Quarterly 100 (1985), 490; Milkis, “FDR, the Economic Constitutional Order, and the New Politics of Presidential Leadership,” in The New Deal and the Triumph of Liberalism, ed. Milkis and Jerome M. Mileur (Amherst: University of Massachusetts Press, 2002). Dunn, Roosevelt’s Purge, 224; Milton Plesur, “The Republican Congressional Comeback of 1938,” Review of Politics 24 (1962), 555–61. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995); John W. Jeffries, “The ‘New’ New Deal: F.D.R. and American Liberalism, 1937– 45,” Political Science Quarterly 105 (1990), 397–418. Ernest Cuneo, “The Recession,” ca. 1939, DHRP XXVI: 653; Lawrence E. Davies, “Jackson Charges Business ‘Strike’ Against New Deal,” New York Times, 30 Dec. 1937, p. 1; “Ickes Renews Attack on ‘Monopolies’; Hits ‘60 Ruling Families,’” Wall Street Journal, 31 Dec. 1937; Diary entry, 28 Nov. 1937, Secret Diary of Harold L. Ickes, II: 255; 1 Jan. 1938, ibid., 283; Ellis W. Hawley, The New Deal and the Problem of Monopoly: A Study in Economic Ambivalence (Princeton: Princeton University Press, 1966), 386–471.

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in the spirit of NIRA “piecemeal planning.” Roosevelt won a heavily diluted reorganization Act in 1939.65 The New Deal’s last advance was the Fair Labor Standards Act of 1938, which finally outlawed child labor and established national minimum wages and maximum hours. The advocates of the bill still had constitutional scruples, and feared Court invalidation, so the FLSA began as a constitutional grab-bag. Its drafters tried to avoid the delegation problem of the NIRA by giving a national labor board clearer standards by which it would establish minimum wages and maximum hours. On the other hand, they feared that overly rigid wage and hour standards would violate due process. They considered declaring low wages an “unfair method of competition” under the FTC Act. The authors used both congressional power to regulate interstate commerce and the delegation of that power to the states, as in the Webb-Kenyon and convict-labor acts, to prohibit child labor. As Attorney General Robert Jackson told Congress, “This act combines everything, and is an effort to take advantage of whatever theories may prevail on the Court at the time that the case is heard.”66 But the principal contours and limits of the FLSA came from interest-group competition within the Democratic party. Organized labor disliked the idea of a powerful labor board that might usurp unions’ functions, and the AFL did not want another agency that could be captured by its CIO rival. Southern congressmen especially worried that the act would deprive their region of its low-wage competitive advantage. Heretofore the South had received the benefits of New Deal programs with few strings attached; the FLSA was the first significant intrusion.67 Farm owners everywhere feared that it would raise the cost of agricultural labor. Consequently, the Act contained numerous exemptions. Farm labor escaped wage and hour restrictions entirely, and the children of migratory families could work at less than the age of sixteen. The Act exempted employees of “any weekly or semiweekly newspaper with a circulation of less than three thousand.” Many argued that the Act excluded those who most needed its protection.68

65

66

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William E. Leuchtenburg, The F.D.R. Years: On Roosevelt and His Legacy (New York: Oxford University Press, 1995), 159–95; Hawley, New Deal and the Problem of Monopoly, 247–69; Arthur A. Ekirch, Jr., The Decline of American Liberalism (New York: Atheneum, 1967 [1955]), 278; Karl, “Constitution and Central Planning,” 188, recanting Karl, Executive Reorganization and Reform in the New Deal, 257; Polenberg, Reorganizing Roosevelt’s Government, 184–85. Paul Douglas and Joseph Hackman, “The Fair Labor Standards Act of 1938 (I),” Political Science Quarterly 53 (1938), 499; Douglas and Hackman, “The Fair Labor Standards Act of 1938 (II),” ibid. 54 (1939), 39; John S. Forsythe, “Legislative History of the Fair Labor Standards Act,” Law and Contemporary Problems 6 (1939), 478, 466; George E. Paulsen, “Ghost of the N.R.A.: Drafting National Wage and Hour Legislation in 1937,” Social Science Quarterly 67 (1986), 241–54. Andrew J. Seltzer, “The Political Economy of the Fair Labor Standards Act of 1938,” Journal of Political Economy 103 (1995), 1316. 52 Stat. 1060 (1938), sec. 13; John W. Tait, “The Fair Labor Standards Act of 1938,” University of Toronto Law Journal 6 (1945), 202, 231–32.

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Though limited in 1938, the FLSA could readily expand when political circumstances permitted. In 1937, the Court upheld a state minimum-wage law, but the next year Congress enacted a national one. With both the federal government and the states enjoying an unfettered police power, the “no-man’s land” had become a zone of “concurrent regulatory power.”69 As the political scientist Jane Perry Clark noted, “Not all federal development has been at the expense of the states, for government as a whole – federal, state, and local – has surged ceaselessly forward.”70 It thus placed some limits on the “competitive federalism” by which the Constitution discouraged “class legislation.”71 Historians have emphasized the limited impact of the New Deal on the states, and continue to debate whether they gained or lost power and the degree to which they followed national liberalism.72 It is certainly clear that the 1930s witnessed an orgy of “class legislation” as interest groups mobilized to take advantage of new regulatory freedom.73 Louisiana restricted the issuing of riverboat pilot licenses to blood relatives of incumbent pilots, Michigan prohibited female barmaids, and Colorado criminalized “activity. . . tending to or having the effect of bringing. . . into disrepute” its dry-cleaning price-fixing act. In the late nineteenth century, courts had frustrated the efforts of plumbers to control entry into their trade; now boards of wallpapaper hangers, photographers, and watchmakers were able to do so. While some state courts kept due process alive in a rearguard action to persevere occupational freedom, the U.S. Supreme court fled the economic field and adopted a new agenda.74

69

70

71

72

73

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Stephen Gardbaum, “New Deal Constitutionalism and the Unshackling of the States,” University of Chicago Law Review 64 (1997), 490. Jane Perry Clark, The Rise of a New Federalism: Federal-State Cooperation in the United States (New York: Russell & Russell, 1965 [1938]), 4. John O. McGinnis, “The Original Constitution and Its Decline: A Public Choice Perspective,” Harvard Journal of Law and Public Policy 21 (1997), 203; Michael Greve, The Upside-Down Constitution (Cambridge, MA: Harvard University Press, 2012). James T. Patterson, “The New Deal and the States,” American Historical Review 73 (1967), 70– 84; Patterson, The New Deal and the States: Federalism in Transition (Princeton: Princeton University Press, 1969); Harry N. Scheiber, “The Condition of American Federalism: An Historian’s View,” in The New Federalism, ed. Frank Smallwood (Dartmouth: Public Affairs Center, 1967), 35, 49; Scheiber, “Federalism and Legal Process: Historical and Contemporary Analysis of the American System,” Law and Society Review 14 (1980), 663–772; Martha Derthick, Keeping the Compound Republic: Essays on American Federalism (Washington: Brookings, 2001), 17. J. A. C. Grant, “The Gild Returns to America, I,” Journal of Politics 4 (1942), 303–36; Grant, “The Gild Returns to America, II,” ibid., 458–77; Greve, The Upside-Down Constitution. Irwin W. Silverman, L. T. Bennett, Jr., and Irving Lechliter, “Control of Licensing over Entry into the Market,” Law and Contemporary Problems 8 (1941), 234–63; Monrad G. Paulsen, “The Persistence of Substantive Due Process in the States,” Minnesota Law Review 34 (1950), 91–118; John A. Haskins and David A. Katz, “Substantive Due Process in the States Revisited,” Ohio State Law Journal 18 (1957), 384–401; C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–47 (New York: Macmillan, 1948), 81.

23 The New Deal Court

the scorpions Roosevelt confirmed the Court’s 1937 switches by appointing seven justices within four years. He was also the first president to staff the lower federal courts for other than partisan and patronage reasons. He sought “youthful Lincolns from Manhattan and the Bronx,” who are “liberal from belief and not by lip service. . . They must know what life in a tenement means.”1 Long convinced that the Supreme Court was a political institution, Roosevelt’s appointments made certain that it was.2 His judicial selections produced a Court that resembled “scorpions in a bottle.” His first appointment, Hugo Black, shocked the Senate. Black had been among the most radical Democratic Senators, whose proposal for a 30-hour workweek prompted Roosevelt to devise the NIRA as an alternative. He had been a pioneer in the use of congressional investigative power for political publicity, and displayed no great concern for the civil liberties of his targets. When a federal judge condemned his committee’s violation of Fourth Amendment rights, Black introduced a bill to prohibit any judicial interference in congressional investigations. Black was a perfect “spite nomination,” by which the wounded President could simultaneously punish his Senate tormentors and express his contempt for the Supreme Court. Roosevelt knew that the Senate could not reject one of its own. Although the Senate did not dispense with Judiciary Committee hearings, they were perfunctory and the appointment was approved within days. Black took his oath of office

1

2

Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan (New Haven: Yale University Press, 1997), 31–38; Roosevelt to C. C. Burlingham, 6 Feb. 1936, in Roosevelt and Frankfurter: Their Correspondence, ed. Max Freedman (Boston: Little, Brown, 1968), 319. Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton: Princeton University Press, 2010), 152–55.

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immediately, rather than customarily waiting for the opening of the Court session in October, and promptly left the country.3 Like the Court-packing plan, the Black nomination was concocted in secret. It went awry when a Pittsburgh newspaper revealed that Black had been an active Ku Klux Klansman in the 1920s and (though he claimed to have “resigned”) remained a life member. His klanishness was not the casual fellow-traveling of an inveterate “joiner.” He often marched and spoke in regalia, and served as the kladd of his klavern. Black had exploited racial and religious antagonisms as an Alabama attorney. He defended a Baptist minister who had killed a Roman Catholic priest for solmenizing his daughter’s marriage to a Puerto Rican, Pedro Gussman, literally highlighting the color of the widower. He told the Klan that he owed his 1926 Senate election to them, and then called it “absolutely untrue” when a fellow senator made that very point. Black opposed congressional reapportionment, which would have increased the representation of urban and immigrant voters. He called Al Smith “the living exponent of the predominating sentiment of the foreign elements in the City of New York, and the ideals of that element are totally at variance with the traditions and sentiments of the people of the South.” Nor did he atone for it by becoming a champion of civil liberty as a justice; his anti-Catholicism persisted in his jurisprudence. The intrepid congressional inquisitor had tried to keep his past a secret, and the administration, though claiming that the delay in the nomination was to make sure that no John J. Parker-like skeletons were in the closet, made no effort to find out.4 Black overcame calls for his resignation and told a nationwide radio audience that his past was behind him. He never expressed regret. In a remarkable display of casuistry or chutzpah, he intimated that he had been the victim of “a planned and concerted campaign. . . which fans the flames of prejudice.”5 The speech was

3

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5

Michael Nelson, “The President and the Court: Reconsidering the Court-Packing Episode of 1937,” Political Science Quarterly 103 (1988), 276; Roger K. Newman, Hugo Black: A Biography (New York: Pantheon, 1994), 186–93; Noah Feldman, Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices (New York: Twelve, 2010), 91, 135; William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 183–85, 211; William M. Wiecek, The Birth of the Modern Constitution: The United States Supreme Court, 1941–53 (Cambridge: Cambridge University Press, 2006), 77; Tony A. Freyer, Hugo Black and the Dilemma of American Liberalism, 2d ed. (New York: Pearson, 2008), 73. Newman, Hugo Black, 65, 94, 81, 126, 136; Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002), 422–30; Jeffrey D. Hockett, New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson (Lanham, MD: Rowman & Littlefield, 1996), 89; Press Conference, 14 Sep. 1937, PP&A VI: 352. Hugo Black, “I Did Join the Klan,” Vital Speeches of the Day, 15 Oct. 1937, pp. 20–21; Lewis Wood, “Radio Talk Is Brief,” New York Times, 2 Oct. 1937, p. 1; “Comment of Press is Critical of Black,” ibid., p. 2; Leuchtenburg, The Supreme Court Reborn, 197. He had adopted a similar tactic when he claimed that the prosecution had exploited religious prejudice in the Gussman murder case – Newman, Hugo Black, 83. The Klan similarly claimed that

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“as much a threat as an apology”; the New York Herald-Tribune called his victim posture “perhaps the greatest item of effrontery in a uniquely brazen utterance.” This ethically dubious but rhetorically adept speech defused the controversy, aided by the public’s shift of attention to foreign affairs after Roosevelt’s “quarantine” speech a few days later. Though he had to join his brethren by the back entrance to avoid protesters, Black was able to weather the storm and avoid resignation or impeachment.6 The youngest member of the Court in 1937, he would be the senior justice by 1945. Oliver Wendell Holmes famously described Roosevelt as “a second-class intellect, but a first-class temperament.” Roosevelt’s first appointment to the Supreme Court had a second-class intellect and a third-class temperament. He was a simple-minded legal positivist and embraced a politically tendentious originalism.7 One of his first dissents denied that the framers of the Fourteenth Amendment had intended to include corporations as constitutional citizens or persons.8 His liberal colleagues, Stone and Brandeis, became alarmed at such amateurism, and induced Felix Frankfurter to advise him, which the proud Alabamian autodidact resented. Stone then fed critical material to journalist Marquis Childs, who reported that “During his brief service on the bench Justice Black has caused his colleagues, again ‘liberal’ and ‘conservative’ alike, acute discomfort and embarrassment.” The embarrassed Justice Stone had to deny that he was the source of the story.9 This episode set the tone for the Roosevelt Court years. Roosevelt next appointed his undistinguished but uncontroversial loyalist, Stanley Reed, to replace George Sutherland in 1938. Early the next year, the death of liberal icon Benjamin Cardozo led Roosevelt to appoint Felix Frankfurter, the most renowned legal academic of his day. He had promoted many radical causes, and served as Justice Brandeis’s political arm and an intimate Roosevelt adviser. But Frankfurter had a conservative streak. He loved Anglo-Saxon institutions and the judiciary. “Those who knew Frankfurter at Harvard were convinced that he was at heart essentially conservative,” one observer noted shortly after he joined the

6

7

8 9

foreign-language instruction and religious schools promoted social division and should be prohibited – Kenneth B. O’Brien, Jr., “Education, Americanization and the Supreme Court: The 1920s,” American Quarterly 13 (1961), 166; William G. Ross, Forging New Freedoms: Nativism, Education, and the Constitution, 1917–27 (Lincoln: University of Nebraska Press, 1994), 146. Hamburger, Separation of Church and State, 430; Martin Carcasson and James Arnt Aune, “Klansman on the Court: Justice Hugo Black’s 1937 Radio Address to the Nation,” Quarterly Journal of Speech 89 (2003), 154–70; Newman, Hugo Black, 267. J. Mills Thornton III, “Hugo Black and the Golden Age,” in Hugo Black and Modern America, ed. Tony Freyer (Tuscaloosa: University of Alabama Press, 1990), 148. Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77 (1938), 85–87. Marquis W. Childs, “The Supreme Court To-Day,” Harper’s, May, 1938, p. 582; Feldman, Scorpions, 145; Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956), 474; Newman, Hugo Black, 278. Childs later confessed that the story was “the worst thing I ever did in my career.” One of the benefits of Black’s progressive paranoia was that, convinced that the story was engineered by the malefactors of great wealth, he did not blame Stone for it.

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Court.10 Even the radical causes he took up usually involved proper criminal procedure rather than revolutionary aims. His shock when the Court acted politically in Parrish and Jones & Laughlin indicated that he did not regard political adjudication as typical. He kept a discreet silence on the Court-packing plan, though he was horrified when he was suspected as one of the plan’s authors. Brandeis resented his acolyte’s betrayal of judicial integrity to political influence. His only confirmation opposition came from cranks who accused him of subservience to foreign ideologies – Senator Pat McCarran especially stoked nativist fears of the Austrian-born Jew. Frankfurter turned into the most restrained and conservative of the New Deal justices, though his professorial habit of lecturing often irritated his brethren and contributed to the Court’s disarray. He was the Mephistopholes of the Roosevelt Court, sowing discord in the body.11 Even Hugo Black looked like a judicial giant compared with William O. Douglas, who replaced Brandeis in 1939. Douglas did not simply lack judicial temperament; he was, as one scholar has aptly phrased it, an “anti-judge.”12 His personal life and jurisprudence incarnated a post-modern, untethered, selfcreating, and utterly self-indulgent “individualism.”13 Roosevelt gave the Court a left-wing James McReynolds without the latter’s integrity.14 Legal Realists usually matured and sobered up when they moved from the academy to the bench, but Douglas displayed real marks of the anarchism or nihilism of the movement. It is not surprising that Yale Law professor Fred Rodell, the most extreme of the Realists, praised Black and Douglas. Rodell regarded law as “a high-class racket,” with lawyers being the modern equivalent of primitive medicine-men or medieval priests, who engaged in “streamlined voodoo and chromium-plated theology” for powerful interests.15 He praised Black as “the 10

11

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Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (New York: Free Press, 1982), 227; Melvin I. Urofsky, “Conflict Among the Brethren: Felix Frankfurter, William O. Douglas and the Clash of Personalities on the United States Supreme Court,” Duke Law Journal (1988), 72, 111; Vincent M. Barnett, Jr., “The Political Philosophy of the New Supreme Court,” Journal of Social Philosophy and Jurisprudence 7 (1942), 119. Nomination of Felix Frankfurter, Hearings, Senate Judiciary Subcommittee, 76th Cong., 1st Sess. (Washington: G.P.O., 1939), 123–26; Newman, Hugo Black, 322; John P. Frank, “The Appointment of Supreme Court Justices: III,” Wisconsin Law Review (1941), 506. G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges, expanded ed. (New York: Oxford University Press, 1988), 369. As outlined in Richard Rorty, Achieving Our Country: Leftist Thought in Twentieth-Century America (Cambridge, MA: Harvard University Press, 1998), 3–38. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003). For a succinct and insightful review, see Richard A. Posner, “The Anti-Hero,” New Republic, 24 Feb. 2003, pp. 27–30. Jerold S. Auerbach, “Lawyers and Social Change in the Depression Decade,” in The New Deal: The National Level, ed. John Braeman et al. (Columbus: Ohio State University Press, 1975), 154; G. Beth Packert, “The Relentless Realist: Fred Rodell’s Life and Writings,” Illinois Law Review (1984), 823–55; Neil Duxbury, “In the Twilight of Legal Realism: Fred Rodell and the Limits of Legal Critique,” Oxford Journal of Legal Studies 11 (1991), 354–95; Ken Vinson, “Fred Rodell’s Case Against the Law,” Florida State University Law Review 24 (1996), 107–20.

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ablest judge and the finest legal mind” on the Court.16 Rodell also extolled Douglas, who returned the accolades.17 Douglas readily extended his methods as an aggressive SEC head to his favored causes, and had no compunction about intuitive policy-making.18 Nor did he make any effort to be personally collegial; only his ideological alliance with Black kept him from adding even more than he did to the cauldron of the Roosevelt Court. Although North Dakota Senator Lynn Frazier alleged that Douglas’s SEC tenure had turned him into a tool of Wall Street, the only significant concern at the time of his appointment was that he was not a genuine “Westerner.” He appeared before a Senate judiciary subcommittee for five minutes.19 Roosevelt also used the Supreme Court as a convenient place to park political rivals. Most of his appointees maintained political ambitions. Frankfurter’s foreign birth placed a limit on his aspirations, but even Black’s Klan scandal did not kill his presidential dreams.20 Douglas long remained a darling of liberal Democrats, as did Frank Murphy, Roosevelt’s fifth appointee, whose real desire was to be Roosevelt’s successor, or at least Secretary of War. It took some effort to elevate to the Supreme Court the governor who had refused to enforce judicial writs during the sit-down strikes.21 That episode never ceased to dog Murphy, being the principal issue in his 1938 re-election defeat. Murphy lost despite the intervention of Roosevelt and high-level administration officials, and Roosevelt’s unprecedented defense of the governor against investigations by Martin Dies’s Committee on Un-American Activities.22 The issue came to a head when Roosevelt nominated Murphy to be Attorney General at the end of 1938. Murphy was able to deflect opposition by producing for the judiciary committee a letter that he had read to John L. Lewis during the crisis, in which he told the CIO leader that he would enforce the writ of ejectment if the union did not come to terms.23 This letter had no impact at the time it was

16 17

18 19

20

21 22

23

Fred Rodell, “Mr. Justice Black,” American Mercury (Aug. 1944), p. 137. Fred Rodell, “As Justice Bill Douglas Completes His First Thirty Years on the Court,” University of California at Los Angeles Law Review 16 (1969), 704–15; William O. Douglas, “Foreword,” Yale Law Journal 84 (1974), 1–3. White, The American Judicial Tradition, 389. “W. O. Douglas is Nominated for Seat in Supreme Court,” New York Times, 21 Mar. 1939, p. 1; Nomination of William O. Douglas, 24 Mar. 1939, H&R IV; Frank, “Appointment of Supreme Court Justices: III,” 510. Newman, Hugo Black, 305–09; Robert Harrison, “The Breakup of the Roosevelt Court: The Contribution of History and Biography,” Law and History Review 2 (1984), 199. Turner Catledge, “President Seeking Post for Murphy,” New York Times, 3 Dec. 1938, p. 1. Samuel T. McSeveney, “The Michigan Gubernatorial Campaign of 1938,” Michigan History 45 (1961), 108–15; Sidney Fine, Frank Murphy: The New Deal Years (Chicago: University of Chicago Press, 1979), 491–510. Liberals initially welcomed the Dies Committee, hoping that it, like the Black and La Follette committees, would harass right-wing targets, and were chagrined when it exclusively red-baited – Robert Shogan, Backlash: The Killing of the New Deal (Chicago: Ivan R. Dee, 2006), 230. “Murphy Will Tell ‘Inside Story’ of 1937 ‘Sit-Downs’ to Senators,” New York Times, 13 Jan. 1939, p. 20.

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written; it was, his biographer observes, “rather a document for the record, a document that at some later time could be cited as evidence of Murphy’s belief in the sanctity of the law.”24 Now was the time. With the support of Vice President Garner, and the sense that Murphy had been obeying Roosevelt’s orders in the affair, the Senate confirmed him as attorney general. Many observers, particularly Solicitor General Robert Jackson, regarded Murphy as no less a hack than his predecessor, Homer Cummings; Murphy himself believed that his Supreme Court appointment was a “kick upstairs.” Francis Biddle, Jackson’s successor, concluded that “Roosevelt simply did not appreciate the demands of the [Supreme Court] position, and. . . was unconcerned about the well-being of the Court as long as it did not interfere with his plans.” Others claimed that Roosevelt removed him from the attorney generalship to protect corrupt Democratic mayors Ed Kelly and Frank Hague. Justice Department official Gordon Dean believed that Roosevelt chose Murphy “to demonstrate his ‘complete contempt’ for the Court and because he could think of no ‘worse punishment’ to inflict on it.” He was quickly confirmed because the sit-down issue had been rehearsed during the attorney general’s nomination.25 Chief Justice Hughes and James McReynolds resigned, giving Roosevelt two more vacancies to fill in 1941. Again treating the Court in partisan terms, he elevated the nominally Republican Justice Stone to the chief justiceship. Roosevelt sent this signal of bipartisanship as war loomed for America, along with his appointment of Republicans Frank Knox (the 1936 vice-presidential candidate) and Henry Stimson to the Navy and War secretariats. This seems silly in retrospect. Stone had been Roosevelt’s favorite critic of the old court, as liberal as Brandeis and disliking the latter’s cooperation with Hughes’s efforts to derail the court-packing plan. More important, Stone was an abysmal administrator. Taft and Hughes had run a tight ship, their efficiency admired even by their jurisprudential foes. Stone’s fecklessness only made the scorpions’ venom more toxic and added to the shambles of the Roosevelt Court.26 The president then filled Stone’s associate spot with James F. Byrnes. Nothing other than a political “fixer,” Byrnes left the bench after one term to handle a variety of wartime posts as de facto “assistant president.” Robert Jackson, who replaced McReynolds, exposed Roosevelt’s politicization of the Court. Jackson had been a partisan firebrand in several offices under Roosevelt. He had carried out Roosevelt and Cummings’s vindictive and inept tax-evasion prosecution of Andrew Mellon. He ardently defended the courtpacking plan and liberally denounced administration opponents as fascists or 24

25

26

Sidney Fine, Sit-Down: The General Motors Strike of 1936–37 (Ann Arbor: University of Michigan Press, 1969), 301. Sidney Fine, Frank Murphy: The Washington Years (Ann Arbor: University of Michigan Press, 1984), 131–37; Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt, ed. John Q. Barrett (New York: Oxford, 2003), 25; H&R IV. Walter F. Murphy, “Marshaling the Court: Leadership, Bargaining, and the Judicial Process,” University of Chicago Law Review 29 (1962), 644; Feldman, Scorpions, 204; Urofsky, “Conflict Among the Brethren,” 89, 100.

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plutocrats, while leading the call for an “economic bill of rights.”27 As attorney general, he gave Roosevelt legal cover for his constitutionally dubious destroyers-for-bases deal.28 But there were limits to Jackson’s partisanship – his lack of fighting spirit was one of the reasons that Roosevelt dropped him from consideration as his successor and put him on the Court. No academic Realist, Jackson respected a traditional distinction between law and politics, accepting this premise of constitutionalism.29 He recoiled at the raw politics of the Roosevelt Court. Shortly after Roosevelt’s death, the “Jackson–Black” feud showed that FDR had left his successor with both a judicial and a diplomatic mess. When Owen Roberts, himself disgusted with the antics of the Court’s new personnel, resigned in the summer of 1945, Black peevishly refused to sign a letter of appreciation, while it included praise of Roberts’ “fidelity to principle.” Stone could not manage the contretemps, so no letter was sent. Jackson was so appalled that he offered to resign.30 When Chief Justice Stone suddenly died the following spring, Black and Douglas spread the word that they would both resign if Jackson were elevated to the center chair. The Court struck a new low when Jackson publicly accused Black of deciding a case – argued by his former law partner – for the benefit of the United Mine Workers.31 The Roosevelt-packed Court nearly proved what the Realists had argued unsuccessfully for decades – that the Court was a highly political and even arbitrary institution. Truman ultimately chose Fred Vinson as Chief Justice. “It sure was a lucky thing I did not make Jackson Chief Justice,” Truman wrote his wife. “He has surely gone haywire. . .. It is terrible for public confidence in the courts. Goes to show that when you have an organization of dissidents it won’t work.” He then remarked, “It seems like the late president had a positive genius for picking inefficient administrators. His Court appointments are somewhat disgraceful, too.”32 27

28

29 30 31

32

“Robert H. Jackson’s Attack on Republicans for Fighting New Deal Program,” New York Times, 29 Sep. 1936, p. 20; Jackson, “The Call for a Liberal Bar,” Address to National Lawyer’s Guild, 20 Feb. 1938, in National Lawyer’s Guild Quarterly 1 (1938), 88; “La Follette Urges Outlay of Billions,” New York Times, 21 Feb. 1938, p. 20; Stephen R. Alton, “Loyal Lieutenant, Able Advocate: The Role of Robert H. Jackson in Franklin D. Roosevelt’s Battle with the Supreme Court,” William and Mary Bill of Rights Journal 5 (1997), 527–618. Feldman, Scorpions, 93, 199; William E. Leuchtenburg, foreword to Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt, ed. John Q. Barrett (New York: Oxford, 2003), x. Dennis J. Hutchinson, “The Black-Jackson Feud,” Supreme Court Review (1988), 219, 229, 240. Feldman, Scorpions, 272; Hutchinson, “The Black-Jackson Feud,” 210. “Jackson Attacks Black for Judging Ex-Partner’s Case,” New York Times, 11 Jun. 1946, p. 1; “Text of Jackson’s Statement Attacking Black,” ibid., p. 2. Jackson sent his denunciation to the chairmen of the House and Senate Judiciary Committees from Nuremberg, where he was prosecuting Nazi war criminals. Stone called Jackson’s special assignment a “high-grade lynching.” To Bess Truman, 11 Jun. 1946, in Dear Bess: The Letters from Harry to Bess Truman, 1910–59, ed. Robert H. Ferrell (New York: Norton, 1983), 525; to Bess Truman, 14 Jun. 1946, ibid., 526. Brandeis similarly lamented Roosevelt’s appointment of “poor judges and lawyers” – 16 Feb. 1936, in “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter, ed. Melvin I. Urofsky and David W. Levy (Norman: University of Oklahoma Press, 1991), 576.

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diversity and liability The new Court solidified and extended the jurisprudential revolution of 1937. Progressives had long targeted diversity jurisdiction. Though section 34 of the first Judiciary Act had directed the federal courts to use state “law” in diversity cases, since Swift v. Tyson (1842) they had fashioned a federal common law drawn from the “general principles” of commerce.33 Progressives believed that large interstate corporations escaped justice in the state courts by removing their cases to pro-business federal courts, whose “general principles” they derided as another version of natural law or due process that helped the strong oppress the weak. Hugo Black, if not exactly an “ambulance chaser,” certainly was an aggressive plaintiff’s lawyer who believed that tort suits vindicated the people against the interests. He recognized the benefits of forum-shopping, keeping his clients’ suits under $3,000, the threshold for removal to federal court. When the Prudential Insurance Company moved to foreclose on one of Black’s properties, he accused it of using diversity to escape the Alabama courts, which were “affected by principles of human justice.” Then a U.S. Senator, Black threatened to support George Norris’s bill to abolish such jurisdiction. Prudential backed off, and Norris’s bill faded away.34 Felix Frankfurter complained that the abuse of diversity had “deeply weakened” the reputation of the federal judiciary. “Swift, with all its offspring, is mischievous in its consequences, baffling in its application, untenable in theory, and, as Mr. Charles Warren has recently proved, a perversion of the purposes of the framers of the First Judiciary Act.”35 Progressives regarded Swift as the private-law equivalent of Lochner. And, as with Lochner, that analysis betrayed considerable progressive delusion.36 The case of Erie Railroad v. Tompkins provided an example of the vagaries of diversity jurisdiction. Pennsylvanian Harry Tompkins was walking along the tracks of the Erie Railroad, a New York corporation, in Pennsylvania. An object on a passing train struck him to the ground, and the wheels of the train severed his arm. He could have sued in Pennsylvania state court, or in federal court in Pennsylvania (the third circuit) or New York (the second circuit). In this case, federal law favored the plaintiff. Pennsylvania law regarded Tompkins as a trespasser, to whom the railroad would not be liable unless it had been wantonly negligent. The Pennsylvania Circuit was more deferential to state law than the New York court, so Tompkins sued in New York. The plaintiff’s bar had learned how to “forum shop” as much as the corporations. Tompkins won a $30,000

33 34

35

36

See chapter 2, §2. Newman, Hugo Black, 57, 150–51. This alone should have kept Black off the Court, if not expelled from the Senate. Felix Frankfurter, “Distribution of Judicial Power Between United States and State Courts,” Cornell Law Quarterly 13 (1928), 511–27. Edward A. Purcell, Jr., Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (New York: Oxford University Press, 1992), 62; see Chapter 2, §3a.

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judgment in the New York district court. He declined a $7,500 offer to settle the case. The railroad lost in the federal appellate court, and was surprised that the Supreme Court agreed to hear the case.37 Brandeis wrote for a majority to overrule Swift and its progeny. Story had misconstrued section 34, he wrote, drawing upon Harvard Law Professor Charles Warren’s 1923 article on the drafting of the Judiciary Act. Brandeis claimed that Swift had been “oft-challenged,” especially after the notorious “taxi case” of 1927, in which a Kentucky taxi company reincorporated across the border in Tennessee in order to escape a Kentucky antitrust law. Brandeis concluded that “experience in applying the doctrine of Swift v. Tyson had revealed its defects, political and social.” Since state courts often did not follow federal principles, conflicts of law and forum-shopping resulted. More important, “mischievous results of the doctrine had become apparent.” The Constitution conferred diversity jurisdiction “to prevent apprehended discrimination in state courts” against non-citizens. But Swift had produced “grave discrimination by non-citizens against citizens.” In other words, rather than preventing bias against interstate corporations, it had produced bias in their favor. Brandeis maintained that such “injustice and confusion” compelled him not to reinterpret section 34, but to uproot “the unconstitutionality of the course pursued.”38 Section 34 directed the federal courts to apply state laws “in cases where they apply,” implying that there were cases where they did not apply. Brandeis declared that the Constitution gave no power to prescribe or let federal courts develop anything other than state law in diversity cases. He added that “the fallacy underlying Swift” was “the assumption that there is a transcendental body of law outside of any particular state” – that is, the very idea of general or natural law. This Brandeis rejected, as Holmes did, as the delusion of “a brooding omnipresence in the sky.” Rather, he expressed the premise of legal positivism, that the law “does not exist without some definite authority behind it” – human authority, not Nature or Nature’s God.39 Erie was sufficiently audacious to prompt Justice Butler to write a compelling dissent. The Court could have decided the case on much narrower grounds, he pointed out, since “no constitutional question was suggested or argued below or here.”40 Butler denied that Swift had been “oft-challenged.” Rather, he insisted, it had “been followed by this Court in an unbroken line of decisions” for ninetysix years, “not questioned” until 1892 by one justice (Stephen Field, the reputed 37

38 39 40

Irving Younger, “What Happened in Erie,” Texas Law Review 56 (1978), 1016–21; Edward A. Purcell, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven: Yale University Press, 2000), 95– 114. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), 77–78. Ibid., 74, 77–79. Ibid., 82. Brandeis and Stone had repeatedly condemned the conservatives for unnecessarily deciding cases on broad, constitutional grounds. See in particular Brandeis’s concurrence in Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), 346–48; Melvin I. Urofsky, Louis D. Brandeis: A Life (New York: Pantheon, 2009), 746.

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father of “laissez-faire” judicial activism). Even Holmes’s more recent challenges to Swift’s application accepted its principle.41 Neither party had presented Charles Warren’s historical challenge to Story’s interpretation of section 34, and that work “does not purport to be authoritative and was intended to be no more than suggestive.”42 For good measure, Butler pointed out that the Court’s decision violated the Judicial Reform Act of 1937, all that remained of Roosevelt’s court-packing plan, which required that the Attorney General be invited to intervene when the constitutionality of federal statutes was at issue.43 Erie was a very idiosyncratic decision.44 Diversity jurisdiction, like much of the rest of the Constitution, was meant to prevent the “balkanization” of the American economy. But Brandeis wanted balkanization – to protect small, local business against more ruthless or efficient enterprises bearing “the curse of bigness.” Though he condemned Swift for producing forum-shopping, Brandeis had promoted forum-shopping – by plaintiffs rather than by defendants. But it was too late to atomize the nation’s long-integrated economy. The states themselves recognized the benefits of this integration. They used another progressive tactic – uniform state regulation – in adopting the Uniform Commercial Code, a statutory version of what Story had hoped Swift would produce. Federal courts continued to resort to general principles, although in a more restrained fashion, since it was impossible to judge without them.45 41

42

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45

Erie Railroad Co. v. Tompkins, 85. Butler noted that Holmes himself had extended the doctrine in United Zinc and Chemical Co. v. Britt, 258 U.S. 268 (1922). See Chapter 2, section 2. Ibid., 86. And Warren’s history was very probably erroneous – Purcell, Brandeis and the Progressive Constitution, 306; Wilfred J. Ritz, Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence, ed. Wythe Holt and L. H. LaRue (Norman: University of Oklahoma Press, 1990). Ibid., 89. Butler’s opinion would not have helped Harry Tompkins, as it would have made the Pennsylvania rule the general rule. Brandeis, at Justice Black’s request, left open the possibility that the unfortunate if negligent Tompkins might be able to recover under Pennsylvania law. He did not. Seventy years later, a group of lawyers bought a bicycle for his niece, as Tompkins had promised to do when he collected his $30,000 judgment. Younger, “What Happened in Erie,” 1030; David Weiss, “70-Year Promise Realized,” Wilkes-Barre Times-Leader, 9 Apr. 2007, p. 1. Purcell, Brandeis and the Progressive Constitution, 151, 195, calls Brandeis’s opinion “Gnostic and pragmatic. . . abstract, abbreviated, and to some extent, purposely misleading.” Michael Greve, The Upside-Down Constitution (Cambridge, MA: Harvard University Press, 2012), 178, 194–96, 235, 372; Michael E. Parrish, “The Great Depression, the New Deal, and the American Legal Order,” Washington Law Review 59 (1984), 744; Tony A. Freyer, “Swift and Erie: The Trials of an Ephemeral Landmark Case,” Journal of Supreme Court History 34 (2009), 272; Suzanna Sherry, “Wrong, Out of Step, and Pernicious: Erie as the Worst Decision of All Time,” Pepperdine Law Review 39 (2012), 129–54; Urofsky, Brandeis, 746; William Graebner, “Federalism in the Progressive Era: A Structural Interpretation of Reform,” Journal of American History 64 (1977), 331–46; Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (Cambridge: Cambridge University Press, 2010), 78, 253. The UCC was itself a Realist work, but the code could not entirely eliminate the “ought” from the law, and base it entirely on the “is” of social reality. It provides that judges should decide cases according to “commercial practice and customary standards of fair dealing” (emphasis added). See David Marcus, “The Federal Rules of Civil Procedure and Legal Realism as a Jurisprudence of Law Reform,” Georgia Law Review 44 (2010), 468.

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Erie advanced the progressive program of using litigation to reform the socioeconomic system. Legal Realist academics led the tort-reform movement against the old system that they believed gave large corporations an advantage over small business, farmers, consumers, and especially workers. Nineteenthcentury civil law strove to keep liability connected to negligence or fault, and to minimize litigation. As one critic put it, “Ideally, nobody should be liable to anyone for anything.”46 Law professors increasingly looked to the litigation system to redistribute risk and resources, to redress the socioeconomic inequality that the industrial revolution had produced. The law should compel businesses to compensate for worker injuries, since they could absorb the costs through liability insurance, safety measures, and by charging higher prices for their products.47 The Realists sought to fold contract into tort law, to reduce or eliminate the role of fault or negligence in tort, and to turn litigation into a social insurance system.48 The new standard would be that “everybody would be liable to everyone for everything.” The Realists believed that the law was an instrument of social policy. Judges did not merely “discover” principles of law, but made it. Law and judging were inescapably political; lawyers and judges should embrace their role as policymakers and “social engineers.” Many judges began to move in this direction, and gradually altered the principles of contract and tort law. Cardozo had done so on the New York Court of Appeals, discarding the doctrine of “privity of contract” and enabling consumers to sue large manufacturers rather than small middlemen.49 DC Court of Appeals Justice Wiley Rutledge, Byrnes’s successor on the Supreme Court, did away with the tort immunity of eleemosynary institutions.50 Justice Roger Traynor of the California Supreme Court made similar advances, using the arguments of the Realist academics to extend the principle of strict liability.51 Holding that manufacturers were liable not just to their contractual partners, but to the public generally, marked the decline of contract and the rise of tort, as American social thought moved from nineteenthcentury individualism to twentieth-century collectivism.52 The Court’s adoption of new rules of civil procedure in 1938 also facilitated the progressive reorientation of the legal system. Justice Reed in Erie had said that he assumed that Congress could declare substantive rules for diversity suits.

46 47 48

49 50 51

52

Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974), 14. Purcell, Litigation and Inequality, 162. George L. Priest, “The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law,” Journal of Legal Studies 14 (1985), 461; Rachel M. Janutis, “The Struggle over Tort Reform and the Overlooked Legacy of the Progressives,” Akron Law Review 39 (2006), 960. MacPherson v. Buick, 217 N.Y. 382 (1916). See Chapter 17, section 3. Wiecek, Birth of the Modern Constitution, 114. Escola v. Coca-Cola, 24 Cal.2d 453 (1944), 461–68; White, The American Judicial Tradition, 286–301. Gilmore, Death of Contract, 95.

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“The line between procedural and substantive law is hazy,” he pointed out, “but no one doubts federal power over procedure.”53 These usually overlooked procedural changes did have substantive effects. The progressives sought to make the law more open and flexible, to free it from the narrow and technical rules of the common law that impeded law’s ability to bring about socioeconomic change. The 1938 Rules of Civil Procedure thus drew heavily on equity procedures, which allowed more pre-trial discovery, joinder of more parties, and more flexible pleading. Nineteenth-century codifiers also disliked the ancient forms of the common law, but their goal had been to limit government power and protect private rights. The progressive procedural reformers wanted to expand government power. The new understanding of rights as governmentprovided entitlements required a new kind of legal system to realize them.54 It required the overthrow of the restraint and discipline of the common law. Progressives had long criticized the pre–New Deal judiciary, and the use of equity procedure (injunctions) against labor unions especially. But with the courts now staffed by progressives, these concerns abated. Brandeis and Frankfurter had once called for the repeal of the Fourteenth Amendment but, as Frankfurter said, the due process clause would be safe in the hands of judges such as Holmes, Brandeis, Learned Hand, and himself.55

the double standard The epitome of New Deal jurisprudence came in the Carolene Products case, decided the same day as Erie. In 1923, Congress had declared “filled milk” to be “an adulterated article of food, injurious to the public health, and its sale. . . a fraud upon the public,” and criminalized its interstate shipment.56 The dairy lobby had been eager to eliminate this milk substitute, whose manufacturers preferred the term “compound milk,” composed of skimmed milk and vegetable oil. Several states had already prohibited its manufacture or sale. The dairymen replayed their campaign against oleo, praising the nutritional benefits of butterfat and the superiority of the white, milk-consuming races to non-white coconutoil drinkers.57 Justice Stone upheld the Filled Milk Act of 1923. He emphasized the “facts” to which “eminent scientists and health experts testified” in favor of the Act. “There is now an extensive literature indicating wise recognition by 53 54

55

56 57

Erie Railroad Co. v. Tompkins, 91–92. Stephen N. Surbin, “How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective,” University of Pennsylvania Law Review 135 (1987), 909–1102; Surbin, “Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules,” Boston College Law Review 39 (1988), 691–745; Marcus, “The Federal Rules of Civil Procedure.” Parrish, Felix Frankfurter, 167; Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994), 111. 42 Stat. 1486 (1923). Geoffrey P. Miller, “The True Story of Carolene Products,” Supreme Court Review (1987), 397–428.

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scientists and dietitians of the great importance to the public health of butter fat and whole milk,” he wrote, in a Brandeisian footnote larded with authorities.58 Mere protection against fraud was not enough in light of widespread “ignorance of the respective food values of the two products.” The principal consumers of filled milk were immigrant and working-class mothers, and Stone noted that “in many sections of the country” there was an “inability to read the labels placed on the containers.” Stone’s blithe acceptance of public-interest pretexts for class legislation had been all too common in what progressives mischaracterized as the “laissez-faire” era. In reality, the Act “expropriate[d] the property of a lawful and beneficial industry, to deprive working and poor people of a healthful, nutritious, and low-cost food; and to impair the health of the nation’s children by encouraging the use as baby food of a sweetened condensed milk product that was 42% sugar.”59 But Carolene Products became famous for its fourth footnote, in which Stone expressed a new standard of judicial review. “The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions,” he said, unless the Act was without “some rational basis” – essentially the Munn standard. But “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,” or in cases involving legislation directed against “discrete and insular minorities.” Simply put, certain rights and certain groups needed judicial protection more than other rights and other groups.60 To say that some rights were more fundamental than others was nothing new. The Court had done so in the nineteenth century, for example, when it held that a grand jury indictment was not fundamental, and it had done so again in 1937 when it held that the right not to be tried twice for the same offense was not. But to say that economic rights (“ordinary commercial transactions”) were inferior to non-economic rights (the ones mentioned in the footnote) was significant.61 It was little noted at the time – it was, after all, a mere 58

59

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U.S. v. Carolene Products, 304 U.S. 144 (1938), 150. Nobody should miss the hilarious aside, “Don’t Cry over Filled Milk: The Neglected Footnote Three to Carolene Products,” University of Pennsylvania Law Review 136 (1988), 1553–66. Miller, “The True Story of Carolene Products,” 399. Most of the Carolene majority died of cardiovascular diseases; the two dissenters in the case (McReynolds and Butler) did not. U.S. v. Carolene Products, 152–53; Peter Linzer, “The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely v. Harlan Fiske Stone,” Constitutional Commentary 12 (1995), 277–303; Elizabeth Wallmeyer, “Filled Milk, Footnote Four, and the First Amendment: An Analysis of the Preferred Position of Speech after the Carolene Products Decision,” Fordham Intellectual Property, Media and Entertainment Law Journal 13 (2003), 1019–52; Felix Gilman, “The Famous Footnote Four: A History of the Carolene Products Footnote,” South Texas Law Review 46 (2004), 163–243. Richard Funston, “The Double Standard of Constitutional Protection in the Era of the Welfare State,” Political Science Quarterly 90 (1975), 266; John V. Orth, “Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm,” Constitutional Commentary 14 (1997), 344.

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footnote.62 Louis Lusky, Stone’s clerk who was most responsible for it, recalled that it was offered not as authoritative but suggestive, “in the spirit of inquiry.”63 It did not win the assent of a majority of the whole Court, as Justice Black, the fifth vote to sustain the filled-milk prohibition, explicitly rejected this part of Stone’s opinion. Nor was it an altogether new idea. Justices Holmes and Brandeis had offered similar arguments in earlier dissents.64 Some congressmen who wanted to curtail judicial review proposed to exempt the Bill of Rights from such presumption.65 But this footnote turned out to be the germ of post-New Deal judicial activism, known by various terms such as “preferred freedoms,” “double standard,” and “bifurcated review.” Progressives repeatedly claimed that the old Court had preferred some (economic) rights over others. Assistant Attorney General John Dickinson claimed in 1935 that “the notion seems to have gained currency that somehow a limitation on economic freedom of action is a more serious kind of interference with liberty than a regulation of other fields of conduct.”66 This was a progressive canard, and the Court had certainly never been so bold as to declare such a preference. Its activism in the field of economic rights paled by comparison with the new Court’s preferences.67 Most critics of the double standard disliked judges picking particular groups and rights for favorable treatment. Carolene seemed to vindicate Publius’s warning that an enumeration of rights was unnecessary and even dangerous, expressing “exceptions to powers which are not granted” and a “colorable pretext to claim more than were granted.”68 But, like Erie, Carolene evinced the abiding progressive animus against natural rights in general. As Lusky pointed out, his goal was not to protect individual rights at all, but to recognize that there was a public interest in the protection of minority groups and “personal” rights.69 62 63

64

65

66

67

68

69

As Justice Frankfurter pointed out in Kovacs v. Cooper, 336 U.S. 77 (1949), 90–91. Louis Lusky, “Footnote Redux: A ‘Carolene Products’ Reminiscence,” Columbia Law Review 82 (1982), 1098. Abrams v. U.S., 250 U.S. 616 (1919); St. Joseph Stockyards Co. v. U.S., 298 U.S. 38 (1936), 52, 77. Reorganization of the Federal Judiciary, Hearings before the Committee on the Judiciary, U.S. Senate, 75th Cong., 1st Sess (Washington: G.P.O., 1937), 500; William E. Forbath, “The New Deal Constitution in Exile,” Duke Law Journal 51 (2001), 179. John Dickinson, Hold Fast the Middle Way: An Outline of Economic Challenges and Alternatives (Boston: Little, Brown, 1935), 220. Robert G. McCloskey, “Economic Due Process and the Supreme Court: An Exhumation and Reburial,” Supreme Court Review (1962), 34–62; Martin Shapiro, “The Constitution and Economic Rights,” in Essays on the Constitution of the United States, ed. M. Judd Harmon (Port Washington, NY: Kennikat, 1978), 74–98; David N. Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right (Washington: CATO Institute, 2011); William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton: Princeton University Press, 1994), 332. Federalist 84; Alpheus T. Mason, “The Core of Free Government, 1938–40: Mr. Justice Stone and ‘Preferred Freedoms,’” Yale Law Journal 65 (1956), 618. Louis Lusky, “Minority Rights and the Public Interest,” Yale Law Journal 52 (1942), 1–41.

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liberal activism Roosevelt had complained that the Supreme Court had not pulled its weight in the “three-horse team” of the federal government. His justices made the Court pull ahead of the other branches, especially Congress. In the Jewell Ridge case, the source of the Jackson–Black blowup, the Court extended the Fair Labor Standards Act to cover the time that coal miners spent traveling to and from the coal (“portal-to-portal”). Jackson used Black’s own congressional testimony to show that this was not Congress’s intent. After the decision, Congress explicitly amended the FLSA to correct Black’s erroneous interpretation, which acted, one magazine put it, like “Santa Claus to labor unions.”70 The Court also overruled an 1869 precedent in which it had held that the insurance business was not “commerce,” and therefore left to state rather than federal regulation. Congress responded by explicitly restoring the exemptions of the insurance industry from most federal regulation.71 The Court augmented the newfound power of organized labor when it upheld the Norris–La Guardia Act and the “little Norris-La Guardia” acts of the states.72 In upholding Wisconsin’s Anti-Injunction Act, the Court denied an injunction against the Tile Layer’s Protective Union, which had picketed Paul Senn, a small contractor. Senn had agreed to employ only union members, but he also did his own tile-laying work, and was not – and could not become – a union member himself.73 Though he earned only about $750 from these jobs, the union was determined to drive him out of business, and the Court did not stand in the way.74 Then the Court held that the federal Norris–La Guardia Act prohibited an injunction against a butchers’ union that picketed to compel unwilling employees to join their union. “It is hard to imagine a case which more clearly calls for equitable relief,” Justice Butler wrote in dissent. “If a demand by a labor union that an employer compel its employees to submit to the will of the union, and the employer’s refusal, constitute a ‘labor controversy,’ the highwayman’s demand for the money of his victim and the latter’s refusal to stand and deliver constitute a ‘financial controversy.’”75 But organized labor did not get all 70

71

72

73 74

75

61 Stat. 84 (1947); “Fair Labor Standards Under the Portal to Portal Act,” University of Chicago Law Review 15 (1948), 352–62; Richard E. Morgan, “The Portal-to-Portal Pay Case,” in The Third Branch of Government: Eight Cases in Constitutional Politics, ed. C. Herman Pritchett and Alan F. Westin (New York: Harcourt, 1963), 55–80. C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–47 (New York: Macmillan, 1948), 67. Though enacted three years before and overshadowed by the monumental Wagner Act, the Norris–La Guardia Act was not ruled on by the Court until a year after it had upheld the Wagner Act. Senn had not met the union’s three-year apprenticeship requirement. Senn v. Tile Layer’s Protective Union, 301 U.S. 368 (1937); Ken I. Kersch, “The New Deal Triumph as the End of History? The Judicial Negotiation of Labor Rights and Civil Rights,” in The Supreme Court and American Political Development, ed. Ronald Kahn and Kersch (Lawrence: University Press of Kansas, 2006), 179; Urofsky, Brandeis, 743. Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938), 333, 336.

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that it sought from the Court. The justices held that although striking workers remained “employees” during a labor dispute, an employer could hire replacement workers during the strike and retain them after it. They also overruled a Labor Board ruling that sit-down strikers could not be fired and lose their employee status. Though socialists claimed that apparent judicial victories masked a “deradicalization” of the Wagner Act, the preponderance of evidence showed a pro-union judicial bias.76 The preferred-freedoms doctrine aided the New Deal Court’s extension of the privileges of organized labor. In the 1940 case of Thornhill v. Alabama, for example, the Court declared that picketing constituted “free speech” under the First Amendment, which states could not prohibit. Justice Frank Murphy wrote the opinion. Although the parties disputed the “peaceful” nature of the picketing, Murphy stressed its public, democratic-communication character, citing Carolene Products.77 The decision caused some liberals to fear that the new Court would become as activist as the old. With regard to picketing, however, the Court almost immediately stepped back. In 1941, it declared that peaceful picketing could be prohibited after a strike had produced an atmosphere of intimidation and violence.78 The Court recognized that picketing involved too many issues beyond those of “expression,” and ought to be left to state regulation.79 A month after Thornhill, the Court decided that a business could not recover damages under the antitrust acts after a sit-down strike had blocked the interstate shipment of its goods. While the Court did not completely exempt unions from antitrust action, it severely narrowed the bounds of union liability. Here, the Court’s interstate commerce and federalism doctrine ran retrograde to its decisions regarding congressional economic regulation. Though the Court would soon allow the Agricultural Adjustment Administration to fine a farmer for cultivating eleven acres more wheat than he was allotted – even though none of the wheat left his farm – here it held that since the strike did not affect the market price of stockings, interstate commerce was not substantially affected.80 Though the strike evinced “a lawless invasion of petitioner’s plant and destruction of property by force and violence of the most brutal and wanton character, under [union] leadership and direction,” the Court did not think such activity

76

77 78

79

80

N.L.R.B. v. Mackay Radio and Telegraph Co., 304 U.S. 333 (1938); N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939); Karl E. Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–41,” Minnesota Law Review 62 (1978), 265–339; Melvyn Dubofsky, The State and Labor in Modern America (Chapel Hill: University of North Carolina Press, 1994), 162–66. Thornhill v. Alabama, 310 U.S. 88 (1940), 95. Kenneth Culp Davis, “Revolution in the Supreme Court,” Atlantic Monthly 166 (May, 1940), 95; Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941). Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origin and Development, 7th ed. (New York: W. W. Norton, 1991), 524. Wickard v. Filburn, 317 U.S. 111 (1942). For analogous reasoning, see Greve, The Upside-Down Constitution, 218.

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implicated the federal antitrust laws. Local powers must deal with such mayhem, though Stone noted here that the strike was carried on “without interference by the local authorities.”81 Chief Justice Hughes called attention to the anomaly that he had begotten in 1937: the Wagner Act applied to employers because of the putative effect that anti-unionism had on interstate commerce, but here employers were unprotected by “the direct and intentional obstruction or prevention of such shipments by the employees.”82 The next year, in U.S. v. Hutcheson, the Court decided that the government could not use the antitrust acts to enjoin a secondary boycott, part of a jurisdictional conflict between two unions. Justice Frankfurter’s majority decision noted, “So long as a union acts in its self-interest and does not combine with non-labor groups,” its motives were no concern of the public.83 In what Justice Roberts called “a process of construction never, as I think, heretofore indulged by this court,” it found that the Norris–LaGuardia Act had repealed criminal penalties for unions under the Sherman Act. “I venture to say that no court has ever undertaken so radically to legislate where Congress has refused to do so.”84 Nor were the holdovers from the pre–Roosevelt court the only dissenters in this line of double-standard cases. When the Court held that a union could compel an employer to cease doing business with another firm so as to drive it out of business – reiterating the Hutcheson principle that the Court would not scrutinize the legitimacy of union motives – Justice Jackson noted, “With this decision, the labor movement has come full circle. . . . This Court now sustains the claim of a union to the right to deny participation in the economic world to an employer simply because the union dislikes him. This court permits to employees the same arbitrary dominance over the economic sphere which they control that labor so long, so bitterly and so rightly asserted should belong to no man.” National policy tried to preserve competition in product markets while tolerating or promoting labor monopolies, and the Court advanced this double standard.85 In 1940, Hughes had mused, “Suppose. . . there should be a conspiracy among the teamsters. . . in New York City to prevent the hauling of goods and their transportation in interstate commerce. Can it be doubted that the Sherman Act would apply?”86 Right after his retirement, the Court held that the Sherman Act did not apply to an obvious conspiracy to obstruct interstate commerce, and added that the federal anti-racketeering laws did not apply to union violence. 81

82 83 84 85

86

Apex Hosiery v. Leader, 310 U.S. 469 (1940), 482; Bernard D. Meltzer, “Labor Unions, Collective Bargaining, and the Antitrust Laws,” Journal of Law and Economics 6 (1963), 158–60. Apex Hosiery v. Leader, 528. U.S. v. Hutcheson, 312 U.S. 219 (1941), 232. Ibid., 245; Meltzer, “Labor Unions, Collective Bargaining, and the Antitrust Laws,” 160–61. Hunt v. Crumboch, 325 U.S. 821 (1945), 830; Meltzer, “Labor Unions, Collective Bargaining, and the Antitrust Laws,” 167, 170; Ralph K. Winter, “Collective Bargaining and Competition: The Application of Antitrust Standards to Union Activities,” Yale Law Journal 73 (1963), 16. Apex Hosiery v. Leader, 526.

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New York City teamsters broke into trucks coming into the city, and either hijacked the delivery or extorted a day’s union wage from the foreign truckers. The Federal Anti-Racketeering Act of 1934 declared it a felony for any person to use force in interstate commerce to extort the payment of money, “not including, however, the payment of wages by a bona fide employer to a bona fide employee.” Despite the lack of any bona fides or any employer-employee relation in this case, the Court called teamster hijacking a “traditional labor union activity,” even if accompanied by “violence and threats.”87 Although Congress tried to overturn this decision in 1946, the Court continued to hold union violence exempt from the anti-racketeering laws.88 Edward S. Corwin wrote in 1941 that the Supreme Court was “setting up as a sort of superlegislature in the interest of organized labor. . .. Constitutional law has always had a central interest to guard. Today it appears to be that of organized labor.”89 A decade and a half later – even after Congress had restrained unions in the Taft–Hartley Act, Roscoe Pound, one of the founders of jurisprudential liberalism, said that unions had acquired the kind of overbearing power that business had before the New Deal. Unions, he said, were free to commit torts against persons and property, interfere with the use of transportation, break contracts, deprive people of the means of livelihood, and misuse trust funds, “things no one else can do with impunity. The labor leader and labor union now stand where the king and government . . . stood at common law.”90 The labor cases showed that the judiciary could advance liberalism. Roosevelt liked to say that he had lost the battle (the Court-packing plan) but won the war (a liberal Court). Later commentators concluded that he had lost the Courtpacking battle, won the campaign (a liberal Court), but lost the war insofar as the Court-packing aftermath ended the New Deal.91 But in light of the importance of the federal judiciary to liberalism in the rest of the twentieth century, Roosevelt may have won the war after all.92 The defeat of the Court-packing plan meant that no president would ever confront the court again. Roosevelt inoculated the judiciary from external political influence and made it safer for liberal activism. Though nobody has ever suggested it (because there exists not a shred of evidence for it), perhaps this was his intention from the outset. The

87 88

89

90

91

92

U.S. v. Teamsters, 315 U.S. 521 (1942), 530, 526. R. Alton Lee, Truman and Taft-Hartley: A Question of Mandate (Lexington: University of Kentucky Press, 1966), 44; U.S. v. Enmons, 410 U.S. 396 (1973). Edward S. Corwin, The Constitution and What It Means Today, 7th ed. (Princeton: Princeton University Press, 1941), vii-viii. Roscoe Pound, “Legal Immunities of Labor Unions,” in Labor Unions and Public Policy, ed. Edward H. Chamberlin et al. (Washington: American Enterprise Association, 1958), 145; “Labor Rein Urged by Roscoe Pound,” New York Times, 20 May 1957, p. 12. James MacGregor Burns, Roosevelt: The Lion and the Fox (New York: Harcourt, 1956), 314. Or, as the ever-winsome Roosevelt put it, “We had a bad season, but we won the Yale game.” Kevin J. McMahon, “Constitutional Vision and Supreme Court Decisions: Reconsidering Roosevelt on Race,” Studies in American Political Development 14 (2000), 20–50.

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Court-packing plan may not have been an “egregious blunder” but the greatest and deftest of all of his political strokes.93 Despite Roosevelt’s bravado, calling the Court plan “among the most important domestic achievements of my first two terms in office,” his decision to seek a third term indicated the short-term damage that it had done.94 No other New Deal liberal could be nominated in 1940. He had failed to turn the Democratic party into a liberal party, or to persuade the public of the need for an “economic bill of rights,” a theme to which he would return in post-war plans for his fourth term.95 The third term upset yet another constitutional tradition, and it would produce the only formal mark that the New Deal made on the Constitution – the Twenty-Second Amendment. The first wave of constitutional amendments, the Bill of Rights, resulted from the first great constitutional debate over ratification. The Civil War produced the next set of amendments. The progressives, for all their rhetoric about a “living Constitution,” nevertheless took the trouble to amend the text several times. But the New Deal made no “explicit and authentic” impression on the Constitution, apart from the anti-New Deal TwentySecond Amendment. Lacking a fundamental sense of legitimacy, modern liberalism has ever since had an insecure footing.96 And constitutionalists could still challenge, and occasionally even roll back, liberal statism as they defended a “Constitution in exile.”

93

94 95

96

Max Lerner, “The Great Constitutional War,” Virginia Quarterly Review 18 (1942), 545; Kelly, Harbison, and Belz, The American Constitution, 483. Introduction, PP&A (1941) VI: xlvii. Anthony J. Badger, The New Deal: The Depression Years, 1933–40 (New York: Hill and Wang, 1989), 246, 279; Eleventh Annual Message, 11 Jan. 1944, in The State of the Union Messages of the Presidents, 1790–1966, 3 vols., ed. Arthur M. Schlesinger, Jr. (New York: Chelsea House, 1966), III: 2881; John W. Jeffries, “The ‘New’ New Deal: F.D.R. and American Liberalism, 1937–45,” Political Science Quarterly 105 (1990), 397–418; Sidney Milkis, “FDR, the Economic Constitutional Order, and the New Politics of Presidential Leadership,” in The New Deal and the Triumph of Liberalism, ed. Milkis and Jerome M. Mileur (Amherst: University of Massachusetts Press, 2002); Cass R. Sunstein, The Second Bill of Rights: F.D.R.’s Unfinished Revolution and Why We Need It More than Ever (New York: Basic, 2004). David E. Kyvig, “The Road Not Taken: FDR, the Supreme Court, and Constitutional Amendment,” Political Science Quarterly 104 (1989), 481; Bruce Ackerman, We the People: Foundations (Cambridge: Belknap, 1991); Elizabeth C. Price, “Constitutional Fidelity and the Commerce Clause: A Reply to Professor Ackerman,” Syracuse Law Review 48 (1998), 139–218.

Appendix A Multipliers and Multiplicands: Hours v. Wages Laws

In Taft’s nomenclature, the multiplier was the wage rate and the multiplicand was the number of hours – or vice versa. The problem is that the multiplier was a rate, not a simple number. The test of whether something was a wage law was whether the employer could adjust the rate multiplier to adjust for the new hours multiplicand, to result in the same product – that is, to pay the same total wages for the same total work. Simple maximum-hour laws such as those upheld in Muller and struck down in Lochner had no wage effect. If a laundress or baker earned $12 for a 12-hour day, each would earn $10 for a 10-hour day. The laws were enforced by criminal fines on the employer. Oregon’s 10-hour law upheld in Bunting provided for time-and-a-half wages over 10 hours. The Court accepted this not as a wage regulation but as a penalty intended to promote compliance with the hours law. (The fine, in effect, was paid to the employee rather than to the state. This would make enforcement easier.) An employer could reduce the base wage of the baker or laundress to 92 cents per hour and still pay $12 for 12 hours of work (10 hours at .92 and 2 overtime hours at 1.38). The Adamson Act was complicated by the railroad custom of paying workers by the day and by mileage more than by the hour. The most common formula was 10 hours = 1 day = 100 miles. The Adamson Act imposed an 8-hour day and forbad reduction of wages. Mathematically, this turned a $10 day from $1 per hour to $1.25 per hour for the new 8-hour day, or from $10 to $12.50 for the old 10-hour day. The railroad could not, as under the Oregon law, reduce the base wage to adjust for the new hours. The Court accepted this as a temporary and emergency measure. The District of Columbia minimum-wage regulation was a permanent version of the Adamson Act, leaving the employer no way to receive the same service for the same product. All of this assumes constant productivity. Reduced-hours advocates claimed that workers’ productivity diminished over long hours, so that it was to everyone’s benefit to reduce hours. But it is hard to believe that employers, who had an 329

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economic incentive, would fail to realize this before legislators did. It also does not take into account jobs that could not conveniently be divided into 8-hour segments. This was certainly true in the case of railroads – thus almost everyone knew that the Adamson Act was a wage-increase masquerading as an hoursreduction act.

Appendix B Losses in the Gold Clause Cases

Creditors clearly suffered real losses when Congress devalued the dollar by 60 percent. Simply put, if one dollar bought a bushel of apples, a $20 debt would buy 20 bushels. A 60 percent devaluation would raise the price of apples to $1.60 per bushel, and the same debt would purchase 12½ bushels. Chief Justice Hughes was said to have had qualms about the windfall or “unjust enrichment” that would ensue if the Court enforced the gold clauses. It reminded him of a gambling payoff.1 He was correct: the gold clauses were a gamble that the government would debase the currency – or an insurance policy against such inflation.

1

Richard D. Friedman, “Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation,” University of Pennsylvania Law Review 142 (1994), 1926.

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Index

agriculture; see farm policy Altgeld, John P., and Pullman strike, 13, 32 antitrust policy Clayton Act, 143–44 Herbert Hoover and, 210 organized labor under, 146–49, 191 progressive-era expansion of, 70 in Roosevelt–Taft conflict, 116–17 Sherman Act, 36–40 Army, United States Civil War, 10–16 World War I, 164–65 Arnold, Thurman, Folklore of Capitalism, 302–03 Ashurst, Henry F., court-packing plan, 279–81 Beard, Charles A. on Civil War, 7 Economic Interpretation of the Constitution, 109, 112 in Franklin D. Roosevelt’s view of history, 9 Beck, James M. argues child labor case, 187 on general welfare clause, 264 lottery act, 84 Massachusetts v. Mellon, 181 National Association for Constitutional Government, 179–80 Beveridge, Albert J. child labor, 158 Progressive party, 125 pure food and drugs, 92 Black, Hugo diversity jurisdiction, 317 feud with Robert H. Jackson, 316 Supreme Court appointment, 310–12 thirty-hour bill, 238 Borah, William attacks federal judiciary, 205 child labor, 158 and National Industrial Recovery Act, 240

Brandeis, Louis D. advises Woodrow Wilson, 139–44 constitutional theory, 152–53, 318 dissent in Oklahoma ice case, 243 diversity jurisdiction, 318–20 Hitchman case, 186 John J. Parker nomination, 208 Norris–La Guardia Act, 324 opposes New Deal centralization, 255 praises James C. McReynolds’ gold clause dissent, 251 prohibition, 204 resignation, 313 on Roosevelt Justice Department, 276 Sedition Act, 174 supports Herbert Hoover, 210 Supreme Court appointment, 151–54 voids Frazier–Lemke Act, 253 on “wage slavery,”260 Brant, Irving, defends court-packing plan, 282 Brewer, David J. Debs case, 34 educational background, 54 imperialism, 86 morals legislation, 76 Supreme Court appointment, 66 Taft on, 115 Theodore Roosevelt on, 87 Brown, Henry B. Holden v. Hardy, 75 income tax cases, 41 Brownlow, Louis; see President’s Committee on Administrative Management Burke, Edward, opposes court-packing plan, 286 Butler, Pierce dissents in New Deal labor cases, 324 Erie dissent, 318–19 eugenics, 202 New York minimum wage law, 267 prohibition, 204

343

Index

344 Butler, Pierce (cont.) Scottsboro cases, 244 Social Security case dissent, 296 Supreme Court appointment, 207 Byrnes, James F. opposes child labor act, 159 Supreme Court appointment and resignation, 315 urges Roosevelt to abandon court plan, 292 Cardozo, Benjamin F. “hot oil” dissent, 248 death, 312 defends Security and Exchange Commission, 265 National Industrial Recovery Act, 253 Supreme Court appointment, 213–17 upholds Social Security Act, 294–95 Celler, Emmanuel, threatens to pack Supreme Court, 278 child labor 1916 prohibition, 157–60 Supreme Court voids, 187–88 Clark, Walter critique of Constitution, 106–07 Taft and, 116 Cleveland, Grover income tax, 40 oleo tax, 79 New York cigar-tenement law, 97 Tenure of Office Act repeal, 254 common law; see also diversity jurisdiction antebellum, 23–31 in antitrust, 37–38 Comstock, Anthony, anti-vice legislation, 82, 92 Cooley, Thomas M. due process, 67, 192 federal police power, 158 and “public purpose” in railroad cases, 17 Coolidge, Calvin defends judiciary, 206 and Harlan F. Stone, 207 McNary–Haugen vetoes, 183 Muscle Shoals vetoes, 185 presidency of, 178–80 Corwin, Edward S. on constitutional interpretation, 247 critique of judicial review, 108 defends court-packing plan, 282 grants-in-aid, 182 Lochner, 102 National Industrial Recovery Act, 238, 242 New Deal labor cases, 327 research for court-packing plan, 277 ridicules Constitution worship, 301 Croly, Herbert on judiciary, 135 opposes Federal Highway Act, 157 Promise of American Life, 109–12

Cummings, Homer S. advises Roosevelt in banking crisis, 232 appointed Attorney General, 276 on Bituminous Coal Act, 266 defends court-packing plan, 281 devises court-packing plan, 276–78 doubts constitutionality of New Deal measures, 262 gold clause cases, 249 warns Roosevelt of Court resistance, 252 Darwinism in nineteenth-century thought, 52–54 Oliver Wendell Holmes, Jr., 54–55 Woodrow Wilson, 129–32 Debs, Eugene V., Pullman strike, 14, 32 diversity jurisdiction and due process, 68 Norris moves to abolish, 206 Supreme Court abandons, 317–20 Swift and nineteenth-century development, 25–31 Douglas, William O. conflict with Jackson, 316 Supreme Court appointment, 313 due process; see also liberty of contract Adair, 72 in Bituminous Coal Act, 267 in Fourteenth Amendment, 61–64 Ives, 121 Lochner, 96–105 natural-rights basis, 59–61 New York minimum-wage case, 267 post-New Deal, 309 revival in1920s, 185–86, 192–95, 198–201 “substantive” due process, 64–69 in Wagner Act, 261 education, federal promotion, 18–22 Eighteenth Amendment; see prohibition elections, congressional 1918, 175 1938, 306–08 elections, presidential 1896, 43–45 1912, 122–25, 132–34 1916, 161–62 1920, 176 1924, 206 1928, 205, 212 1932, 222–27 1936, 269–72 farm policy Agricultural Adjustment Act enacted, 234–36 struck down, 263–65 Fair Labor Standards Act and, 308 federal loans, 155 good roads, 156

Index Hoover and, 212 McNary–Haugen bill, 182–84 Federal Reserve 1935 amendments, 259 in depression, 217 enacted, 140–43 Federal Trade Commission in 1920s, 177–78 established, 144–46 independent of executive branch, 254–55 Field, Stephen J., 30 income tax, 41 Munn dissent, 64 oleo tax, 79 Slaughterhouse dissent, 63 Frank, Jerome on Constitution worship, 302 legal realism, 214 redefinition of rights, 303 Frankfurter, Felix Adkins, 194 advises Roosevelt on Supreme Court, 267 attacks S.E.C. decision, 265 and Brandeis, 153 child labor, 188 diversity jurisdiction, 317 on due process, 186 judiciary in 1920s, 206 New York minimum-wage case, 268 on Roberts and Supreme Court switch, 285, 292 Supreme Court appointment, 312 Fuller, Melville W., 30 income tax, 41 lottery cases, 84 sugar trust case, 39 Supreme Court appointment, 66 Taft on, 115 Theodore Roosevelt on, 87 Garner, John Nance opposes court-packing plan, 279, 304 Murphy Supreme Court appointment, 315 Glass, Carter Federal Reserve Act, 142 opposes court-packing plan, 300 Gompers, Samuel Clayton Act, 146–49 Kansas Industrial Relations Act, 194 La Follette Seamen Act, 150 New York cigar-tenement law, 97 World War One, 169 Goodnow, Frank J. critique of Constitution, 109 on judiciary, 135 grants-in-aid in 1920s, 180–82 roads, 156–57 Social Security Act, 294

345 Green, William National Industrial Recovery Act, 238–39 supports Hoover, 210 Hamilton, Alexander Bill of Rights, 67, 323 executive power, 88, 305 in Franklin D. Roosevelt’s view of history, 9, 16 on free speech, 171 general welfare definition, 264 on removal power, 254 Harding, Warren G. endorsed by Theodore Roosevelt, 119 presidency of, 177–78 Harlan, John Marshall Adair case, 72 due process, 67 educational background, 54 income tax, 41 Lochner dissent, 102 lottery act, 84 sugar trust case, 39 Taft on, 115 Theodore Roosevelt on, 87 historicism historism, 49–50 Holmes and, 55 Walter Clark, 107 Wilson and, 129–32 Holmes, Oliver Wendell, Jr. Adair, 72 Adkins dissent, 193 child labor, 187–88 eugenics, 195 legal philosophy, 54–56, 214 legal realism, 214 Lochner dissent, 100–01 prohibition, 204 Sedition Act, 173–74 Supreme Court appointment, 86–88 takings, 195 Hoover, Herbert 1932 campaign, 226–27 1933 banking crisis, 232 attacks court-packing plan, 282 Cardozo appointment, 213–17 Challenge to Liberty, 257 corporatism, 210–12 depression, 217–19, 259 and Hughes, 207–08 McNary–Haugenism, 185, 212 Norris–La Guardia Act, 212–13 prohibition, 203, 205 on Swope Plan, 239 zoning, 197 House, Edward, Philip Dru, 145–46 Hughes, Charles Evans 1916 campaign, 161–62 on constitutional interpretation, 239, 246, 281

346 Hughes, Charles Evans (cont.) court-packing switch, 291–92 defends federal judiciary, 205 gold clause suspension, 249–50 on Holmes, 55 Hoover appoints, 207–08 “hot oil” case, 248 Minnesota mortgage moratorium, 245 National Labor Relations Act, 288–90 and New Deal labor cases, 326 New York minimum wage, 268 opposes court-packing plan, 283 resigns from court, 315 Taft appoints, 116 upholds Railway Labor Act, 243 voids NIRA, 253 Washington minimum wage, 284 income tax first statute, 138 Pollock case, 40–43 Sixteenth Amendment, 136 World War One, 165–67 injunctions and John J. Parker, 208–09 Cardozo and, 215 Clayton Act, 191 development of, 33–36 Hitchman case, 186 Holmes and, 88 Norris–La Guardia Act, 212–13, 324 Post–New Deal, 321 Interstate Commerce Commission Adamson Act, 160 enactment, 17–18 Hepburn amendments, 90, 144 Jackson, Robert criticizes Murphy, 315 defends court-packing plan, 281–82 envisions court-packing, 275 Fair Labor Standards Act, 308 feud with Black, 316 New Deal labor cases, 326 Supreme Court appointment, 315–16 James, William and Croly, 110 “Moral Equivalent of War,”16, 163 pragmatism, 57 Johnson, Hugh, 16 McNary–Haugen bills, 183 NRA, 240–41 Knox, Philander C. 1902 coal strike, 89 Mann Act, 94 La Follette, Robert act to protect seamen, 149–50

Index attacks federal judiciary, 205–08 Progressive party of 1912, 119 Landon, Alfred, presidential campaign, 269–72 Langdell, C. C. Holmes on, 55 scientific jurisprudence, 50 legal positivism; see also legal realism and diversity jurisdiction, 318 Holmes, 55 nineteenth-century theory, 51–52, 63–64 J. Allen Smith on, 58 legal realism; see also legal positivism Cardozo, 213–17 court-packing fight, 301–03 New Deal Supreme Court, 313–14 origins, 214 tort law, 320 Lerner, Max, ridicules Constitution worship, 301–02 Lewis, John L. breaks with Roosevelt, 299 NIRA, 240, 262 praises Hoover, 212 sit-down strikes, 272–74, 314 liberty of contract; see also due process due process origins, 69 Lochner case, 96–105 Pound and, 72–74 Railway Labor Act, 243 redefined in New Deal, 225, 263 Supreme Court rejects, 284, 289 n. 71 Wilson and, 132 Lincoln, Abraham on conscription, 11 national mercantilism, 7 Lippmann, Walter NIRA, 241 opposes court-packing, 287 lotteries, interstate commerce prohibition, 82–85 Madison, James, 17, 26 Bill of Rights, 67 on delegation/separation of powers, 248, 283 general welfare clause, 264 on human nature, 297 income tax, 40 natural rights, 60 “property,”174 Mann White Slave Act enacted, 92–94 1920s enforcement, 202–09 Marshall, John, 26 due process, 60 legal philosophy, 57–58 McKenna, Joseph Adair, 72 Mann Act, 93–94 Pure Food and Drugs Act, 92

Index McReynolds, James C. attacks court-packing plan, 282–83 civil liberties, 200 dissent in Labor Board cases, 290–91 dissent in Social Security Act cases, 294 gold clause cases, 250 New York milk law, 245 prohibition, 204 resignation, 315 Scottsboro case, 244 Supreme Court appointment, 151 TVA dissent, 266 Miller, Samuel F., Slaughterhouse cases, 62 Murphy, Frank picketing as free speech, 325 sit-down strikes, 272–74 Supreme Court appointment, 314–15 Muscle Shoals in 1920s, 184–85 and TVA, 236–38 National Industrial Recovery Act enacted, 238–41 “hot oil” provisions, 247–49 Supreme Court voids, 253 National Labor Relations (Wagner) Act Court upholds, 288–91 Court extends, 324–27 enacted, 259–62 sit-down strikes, 273 Norris, George W. attacks federal judiciary, 205, 317 calls for Roosevelt nomination, 220 and court-packing plan, 279 opposes Stone appointment, 207–08 promotes Muscle Shoals, 185 Reconstruction Finance Corporation, 219 oleomargarine tax, 78–81 Palmer, A. Mitchell child labor campaign, 158 Sedition Act and Red Scare, 173 Parker, John J., Supreme Court appointment, 208–09 Peckham, Rufus W. liberty of contract, 69 Lochner, 99–100 Theodore Roosevelt on, 87 Pinchot, Gifford, controversy with Ballinger, 115 Pitney, Mahlon Coppage, 103 Supreme Court appointment, 147, 206 Pound, Roscoe Adair and liberty of contract, 72–74 Ives, 120 legal philosophy, 56–58 on New Deal labor policy, 327 opposes administrative state, 257

347 President’s Committee on Administrative Management, 304–06 prohibition Eighteenth Amendment, 203–05 federal police power, 78–82 Webb–Kenyon Act, 94–95 Pullman strike, 13–14, 32 Pure Food and Drugs Act enacted, 90–92 interpretation, 115 railroads Adamson Act, 160–61 and antitrust, 70 Erdman Act, 71 federal promotion, 17 Railroad Retirement Act, 252 Railway Labor Act, 191, 243 in World War One, 167 Reconstruction Finance Corporation creation, 219 under Roosevelt, 232 Reed, Stanley Erie concurrence, 320 Solicitor General, 277 Supreme Court appointment, 312 Roberts, Owen J. minimum-wage switch, 284–86 New Deal labor cases, 326 New York milk price case, 244 resignation, 316 Supreme Court appointment, 209 voids Agricultural Adjustment Act, 264–65 voids Railroad Retirement Act, 252 Robinson, Joseph R. dies, 303 leads court-packing fight, 298 Roosevelt, Franklin D. on 1924 progressive court attacks, 206 1932 campaign, 222–27 1936 campaign, 270–72 attacks Supreme Court, 227 background, 220–22 banking crisis, 231–33 chagrin at Supreme Court, 255 Commonwealth Club address and redefinition of rights, 9, 263, 270–71, 280, 305 on congressional statutory language, 253–54 Democratic party “purge,”306–08 dollar devaluation, 234, 249 executive reorganization, 303–07 gold clause cases, 251 judicial selection criteria, 310 martial rhetoric, 9, 117, 222–23, 231 NIRA, 240–41 New Deal Court, 327 political-constitutional theory, 220–22, 279, 297–98

348 Roosevelt, Franklin D. (cont.) proposes court-packing plan, 275–78 redistributive taxation, 259 rejects constitutional amendment, 278–79, 281 supports Hoover, 210 TVA, 236 urges Bituminous Coal Act, 266 urges court-packing plan, 280–81, 296–98 Roosevelt, Theodore 1902 coal strike, 88–90 antitrust policy, 116–17 and Herbert Croly, 112–12 executive reorganization, 304 on judiciary, 30, 86–88, 113, 117–18, 119–22, 135, 292 and labor policy, 147 Lochner, 100–02, 117 martial rhetoric, 16, 30, 117 New Nationalism, 113–25, 133 New York cigar-tenement law, 97 Pure Food and Drugs Act, 90–92 Root, Elihu, 1912 Republican convention, 123–25 Ross, Edward A. on immigrants, 74 Pound and, 56 sedition and free speech, World War One, 170–76 Seventeenth Amendment adoption, 136 effects, 137, 153, 156 Seymour, Horatio, on conscription, 10 Sixteenth Amendment; see income tax Smith, Alfred 1928 campaign, 205 and FDR, 222–23 opposes New Deal, 259 Smith, J. Allen critique of Constitution, 108–09 on immigrant labor, 99 Social Security Act enacted, 258 upheld, 293–95 Stone, Harlan F. and AAA, 265 advice on Social Security Act, 258 appointment, 207 Beardian view of Founders, 246 and Hugo Black, 312 double standard/preferred freedoms doctrine, 321–24 gold clause, 250 laments 1936 Court term, 268 made chief justice, 315 Story, Joseph diversity jurisdiction, 28 due process, 60 Sumners, Hatton, rejects court-packing plan, 278, 303

Index Sutherland, George Adkins decision, 192 defends Constitution, 112 desire to retire, 233–34 dissent in Associated Press case, 291 grants-in-aid, 181 Minnesota mortgage moratorium, 246 presidential power in foreign affairs, 268 presidential removal power, 254–55 prohibition, 204 resignation, 312 restrains SEC, 265 revives privileges-and-immunities clause, 255 Scottsboro cases, 244 voids Bituminous Coal law, 267 voids Oklahoma ice law, 243 Washington minimum-wage dissent, 285 zoning, 196–98 Taft, William H. Adkins dissent, 193 Arizona Constitution veto, 122 and Brandeis, 152, 161 and Cardozo, 215 character, 114 chief justiceship, 189–90 child labor cases, 159, 188 and Walter Clark, 116 defends judiciary in 1920s, 205–06 defends judiciary, 122–24 on Federal Reserve, 141 labor policy, 147, 149, 191 National War Labor Board service, 170 Pinchot–Ballinger affair, 115 prohibition, 204 and radio, 211 and Supreme Court, 115–16, 161 Webb–Kenyon veto, 94–95, 204 on Woodrow Wilson, 136 Taney, Roger B. conscription, 10 due process, 61 tariffs antebellum debate, 16–17 Cardozo on general welfare, 294 McNary–Haugenism, 184 Smoot–Hawley, 212 Stone analogizes to state taxation, 255 Underwood, 138–39 Tennessee Valley Authority established, 236–38 upheld, 266 Thompson, Dorothy, opposes court-packing, 287 Truman, Harry S, on Roosevelt Court, 316 Van Devanter, Willis appointment, 190 advises against Cardozo appointment, 216 desire to retire, 233–34

Index opposes court-packing plan, 283 retires, 292 Wagner, Robert NIRA, 240 NLRA, 259–63 opposes John J. Parker, 208–09 Waite, Morrison R., Munn standard, 64 Warren, Charles diversity jurisdiction, 319 grants-in-aid, 182 incorporation of Bill of Rights, 199 Webb–Kenyon Act, enacted, 94–95 Wheeler, Burton K.

349 Hughes letter against court-packing, 283 leads court-packing opposition, 279, 304 opposes executive reorganization, 305 White, Edward D., and oleo tax, 81 Wilson, Woodrow 1912 campaign, 132–34 Adamson Act, 160 Brandeis nomination, 151–54 child labor, 157–59, 239 constitutional theory, 129–32, 150 eugenics, 201 and FDR, 220 and judiciary, 134–37, 154, 206, 292 tariff, 138