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In many ways, the American scheme of government has been a model of stability. The constitutional system, set up in the late eighteenth century, has turned out to be tough and durable. Not many countries can match the American record. In 1900 the scheme of government seemed, essentially, the same as it had always been. In Europe, upheavals and revolutions had rocked France, Germany, Italy, and Spain. There was no counterpart in the United States. There was, of course, the Civil War-a huge, bloody exception. Still, Jefferson or John Adams, if brought back to life in 1900, would have found the frame of government at least recognizable. The president was still the head of state and head of government; there was still a Senate and House of Representatives; there was still a Supreme Court. Many new states had joined the union; but they were formed on the pattern of the old ones. Even the White House would look pretty much the same.
Jefferson and Adams were extremely intelligent men; and after the shock of familiarity wore of, as they began to probe deeper into the nature of American government, they would find themselves puzzled and even (maybe) horried; they would find themselves in a realm of mysteries and changes. The Constitution and its system were really not the same at all, except on paper. They were like an old building whose facade had been lovingly preserved; but the guts had been torn out, and plumbing, wiring, and the very shape of the rooms had been redone so often and so thoroughly that hardly a bit of the original was still actually there. America faced twentieth-century problems; and these problems reacted on the institutions that were called on to solve them. Nothing seemed different; but then nothing was really the same.
The Supreme Court That Said No
The highest court of the land was the United States Supreme Court, in 1900 as in 1800. It sits, in lonely splendor, at the top of the federal system of justice. This was, by 1900, a three-tiered system-trial courts (district courts), appeal courts (the circuit courts), and the Supreme Court above them all. The federal courts decided cases that arose under federal laws, and under the federal Constitution. They also decided "diversity" cases-cases between citizens of different states-if these cases were worth a certain amount and met certain threshold standards. All federal cases could crawl up the ladder of appeals and, if lucky or controversial enough, reach the Supreme Court. That court also, on occasion, heard appeals from the highest state courts, in cases which presented some sort of federal or constitutional question.
The system was, of course, still strongly federal; and though the United States Supreme Court had a kind of imperial authority, each state had its own constitution, its own laws, its own supreme court. The local high-court judges were the kings of local law; and in their sphere they were all-powerful. A decision of the Ohio Supreme Court, on a matter coming under the Ohio Constitution, was (99 percent of the time) absolutely final; there was no recourse to the federal courts at all.
For obvious reasons, the United States Supreme Court grabs most of the headlines and attention. From the very beginning of its history, it has made news-good news and bad news. The early twentieth century was no exception. The Supreme Court had always had its share of hot political cases; but the number of these grew steadily over the years, and there was something of a bulge in the late nineteenth century. Before 1870 the Supreme Court occasionally had to decide whether a statute of some state violated the federal Constitution; it did the same-but very, very rarely-for federal statutes. By 1900 the Court was deciding many more cases than before on constitutional issues; and it had developed some startling doctrines-doctrines of judicial review-which it used, from time to time, to slash and burn programs of federal and state legislation, which, in the Court's judgment, violated the Constitution.
The early twentieth century, in some ways, was the high-water mark of this new activism. Looking backward, we are apt to label this as conservative activism-an activism very different from the activism which, as we shall see, developed after the 1940s. In particular, Lochner v. New York (1905), famous or infamous, has come to stand as a symbol of the work of a court that said no, defiantly, to what many people at the time defined as progress.
The background of Lochner was this: New York State had in 1897 passed a law which, among other things, regulated bakeries, and the conditions of work inside bakeries. Much of the statute had to do with sanitary conditions. Every bakery had to have a "proper wash-room and water-closet ... apart from the bake-room"; bakeries had to be properly ventilated; nobody was to sleep in a bake-room; no domestic animals, except cats, were allowed in any room used to bake in, or where our or meal products were stored. These provisions were not in serious dispute. But the act also provided that no employee of a bakery "shall be required or permitted to work in a ... bakery ... more than sixty hours in any one week, or more than ten hours in any one day." This was the sticking point-the source of controversy.
Joseph Lochner, who owned a small bakery in Utica, New York, was accused of letting a worker work more than sixty hours in a week. He was convicted and fined $50. Lochner appealed all the way through the New York court system and up to the United States Supreme Court. A majority of the Court, in an opinion written by Justice Rufus Peckham, thought that the law was unconstitutional. How long bakers worked had nothing to do with public health, in Peckham's opinion; in fact, Peckham hinted darkly, the law had been passed "from other motives." These "motives" were not specied; but what Peckham meant was obvious, and he said so elsewhere in his opinion: this was a labor law, a law that took sides in the struggle between management and labor. And in so doing, in Peckham's view, it did a disservice to the public interest; moreover, it interfered with the freedom of workers and their bosses-their right to enter into whatever contract of labor they chose. This right was protected (he said) by the Constitution of the United States, specifically, by the Fourteenth Amendment to the Constitution. That amendment provided that no state could deprive its people of life, liberty, or property without "due process of law." The bakery law interfered with the "liberty" to enter into labor contracts, and the state could not infringe upon this right.
Not everyone on the Court agreed with Peckham. John Marshall Harlan dissented vigorously-bakers, he pointed out, lived short, dismal lives in an inferno of heat and our dust. Their hours were a health issue, he insisted. This trenchant and relevant critique was overshadowed, however, by the dissent of Oliver Wendell Holmes, Jr., written in Holmes's best gnomic and pithy style. The Fourteenth Amendment, he said, "does not enact Mr. Herbert Spencer's Social Statics." The Constitution was "not intended to embody a particular economic theory"; and the word liberty in the Fourteenth Amendment is "perverted when it is held to prevent the natural outcome of a dominant opinion."
In a sense, Holmes and Peckham saw eye to eye. They agreed on the issue-though not on the outcome. The issue was the right of states to interfere in the workings of the economy. That right, Peckham thought, was severely limited-by the Constitution, in fact. A kind of laissez-faire ideology was implicit in the constitutional scheme. Not an extreme ideology; the states did have regulatory powers. They could act to protect public health, safety, and morals. But the courts had a duty to draw the line between regulation that was acceptable-regulation which fell within this protected zone-and regulation that was not. The bakers' statute went too far. To Holmes, however, the majority opinion was reading its own version of a free-market philosophy into the Constitution. Holmes was willing to defer much more to the elected legislature.
Lochner was not the only case to pose the issue of the limits of regulation. In Adair v. United States (1908), the Supreme Court confronted a common industrial practice. Some employers demanded that workers sign so-called yellow dog contracts; that is, workers had to promise not to join a union. An act of Congress, passed in 1898, forbade railroad employers from discriminating "against any employee because of his membership in ... a labor ... organization." Adair, an agent of the Louisville and Nashville Railroad, was accused of ring a locomotive reman, Coppage, because he was a member of the Order of Locomotive Firemen. The Supreme Court, referring to the same notion of "liberty of contract" that they leaned on in Lochner, struck down the statute.
Cases of this type were-not surprisingly-controversial. To organized labor, the courts were reactionary institutions that sided with the bosses. The Supreme Court acted, at least sometimes, as if the Constitution itself ruled out various types of social reform. If legislatures thought they could smooth out the sharp, jagged edges of capitalism, or mount an attack on the gross inequalities of income, power, and influence that capitalism dragged with it-well, they were wrong. Capitalism, in Europe and North America, has since become much tamer, subdued by the welfare-regulatory state. But this twist in the fortunes of capitalism still lay in the future. In Coppage v. Kansas (1914), the Supreme Court revisited the Adair case. The earlier case had involved a federal statute; here it was the state of Kansas that had outlawed the yellow dog contract. The Court struck down the statute, citing Adair. Justice Mahlon Pitney delivered himself of the following:
No doubt, wherever the right of private property exists, there must and will be inequalities of fortune.... Indeed a little reflection will show that wherever the right of private property and the right of free contract co-exist, each party when contracting is inevitably more or less influenced by ... whether he has much property, or little, or none.... It is self-evident that, unless all things are held in common, some persons must have more property than others. [Thus] 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 reader will note such phrases as "the nature of things." Pitney's Constitution was, as it were, designed to freeze the status quo-to sanctify if not the distribution of wealth and income itself, then at least the structures that led to that distribution.
Nowhere did the Supreme Court appear more stubborn, retrograde, and intransigent than in the struggle against child labor. Most of the industrial states had laws against child labor by 1900. Children had always worked, helping families on the farm, or as apprentices; but in the industrial age, "child labor" now meant kids under sixteen slaving long hours in factories; they were a pool of cheap and expendable labor. Courts tended to uphold child-labor laws as valid; but enforcement was another question. The South constituted one gigantic, gaping loophole. In 1900 most of the spinners in southern cotton mills were under fourteen. The South, in general, had no child-labor laws on its books; and the business community in the South wanted to keep it that way. Muckraking exposés fed anger in the North and led to calls for action; more to the point, perhaps, New England textile mills and other industries were deathly afraid that the low-wage South would suck their businesses away. The South would not reform itself-that was clear. The only hope to stop the race to the bottom was to get legislation out of Washington-legislation on a national scale. After many years of agitation over the issue of child labor, Congress passed a law in 1916 to try to get children out of factories and mines. The act applied to any mine or quarry that hired children under sixteen, or factories that hired children under fourteen (or allowed children between fourteen and sixteen to work more than eight hours a day, or six days a week; or at night or in the early morning). These mines, quarries, and factories were not to ship their goods and products in interstate commerce. Violaters were subject to fines for a first offense; fines and jail time for repeat offenses.
By that time it was part of the normal life cycle of a major labor or welfare statute to run the gamut of the federal courts. In a test case, Roland H. Dagenhart, who worked in a cotton mill in Charlotte, North Carolina, brought an action on behalf of himself and his two minor sons to enjoin enforcement of the child-labor law. The Supreme Court, in a narrow 5-4 decision, struck down the law in 1918. Congress could regulate "interstate commerce" under the Constitution; but this statute, according to Justice Day (speaking for the majority) went too far. It also exerted "a power as to a purely local matter to which Federal authority does not extend." If Congress could prohibit this kind of goods from moving in interstate commerce, it could prohibit anything at all from crossing state lines. This would destroy the authority of the states over "local matters," and unsettle the whole American system of government. (Four justices, speaking through Oliver Wendell Holmes, Jr., dissented.)
If we take the Court at face value, it was worried mostly about the federal system-the distribution of power between federal and state governments. In some ways, indeed, it was this system, this structure, that lay at the root of the problem. The United States was, by law and custom, a giant free-trade area. It was an economic but not a cultural or political unit-or, for that matter, a legal unit. This was the reason why child labor had to be dealt with on a national scale.
The Supreme Court had become, as we have seen, something of an activist court in the late nineteenth and early twentieth centuries; quite a few state statutes fell in the process. But here it was a federal statute, a solemn act of Congress, that the Court declared void. This was a much rarer event (at least until the New Deal era). It was also an event that Congress did not take lying down. After the Supreme Court said no to the child-labor law, Congress tried another tack. It passed a tax law in 1919 which put an "excise tax" of 10 percent on the net profits of any mine or factory hiring children.
Excerpted from American Law in the 20th Century by Lawrence Meir Friedman Copyright © 2004 by Lawrence Meir Friedman. Excerpted by permission.
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|Introduction: The Way We Were, the Way We Were Going to Be||1|
|1||Structure, Power, and Form: American Public Law, 1900-1932||15|
|2||The Legal Profession in the Early Twentieth Century||29|
|3||The Law of Business and Commerce||44|
|4||Crime and Punishment in the New Century||80|
|5||Race Relations and Civil Liberties||111|
|6||The Roosevelt Revolution||151|
|7||War and Postwar: Prosperity and the Flowering of the Welfare State||184|
|8||Crime and Criminal Justice in the Postwar World||205|
|9||Courts, Trials, and Procedures in the Twentieth Century||251|
|10||Race Relations and Civil Rights||280|
|11||The Liability Explosion: Personal-Injury Law in the Twentieth Century||349|
|12||Business Law in an Age of Change||377|
|13||The Law of Property||399|
|14||Family Law and Family Life||430|
|15||Internal Legal Culture: The Legal Profession||457|
|16||American Legal Culture in the Twentieth Century||505|
|17||Backward and Forward: Counterrevolution and Its Aftershocks||523|
|18||Getting Around and Spreading the Word||548|
|19||Law: An American Export||572|
|A Bibliographical Note||681|
Posted April 29, 2009
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