The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence

The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence

by Howard Gillman

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The Constitution Besieged offers a compelling reinterpretation of one of the most notorious periods in American constitutional history. In the decades following the Civil War, federal and state judges struck down as unconstitutional a great deal of innovative social and economic legislation. Scholars have traditionally viewed this as the work of aSee more details below


The Constitution Besieged offers a compelling reinterpretation of one of the most notorious periods in American constitutional history. In the decades following the Civil War, federal and state judges struck down as unconstitutional a great deal of innovative social and economic legislation. Scholars have traditionally viewed this as the work of a conservative judiciary more interested in promoting laissez-faire economics than in interpreting the Constitution. Gillman challenges this scholarly orthodoxy by showing how these judges were in fact observing a long-standing constitutional prohibition against "class legislation." Originally published in cloth by Duke University Press, this book received the 1994 C. Herman Pritchett Award for the "Best Book in the Field of Law and Courts," awarded by the Law and Courts Section of the American Political Science Association.

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"An important work."—Mark Tushnet, Georgetown University

"This book is of immense importance in the field of American constitutional history."—Michael Les Benedict, Ohio State University

David Schultz
CONSTITUTION BESIEGED is a fascinating and intelligent analysis of Supreme Court jurisprudence from the Civil War until the second New Deal cases of 1937. Gillman provides fresh appraisal of what has become known as the Court's LOCHNER Era opinions. In these decisions, following upon Justice Holmes' dissent in LOCHNER V. NEW YORK, many believe that the Court was pronouncing a series of cases "decided upon an economic theory which a large part of the country does not entertain," i.e., laissez faire economics. Yet instead of arguing that the Waite through Hughes Courts were motivated by simple appeals to a specific free market ideology, the book connects the logic of decisions like LOCHNER to an overall fear of factions and special legislation that would benefit a specific class or group. In short, the book ties Supreme Court decisions during the LOCHNER Era to earlier police power jurisprudence which emphasized political neutrality and unbiased legislative decision making. Gillman's book opens by reviewing the scholarship that has examined and sought to explain LOCHNER Era cases. In part to set the historical record straight and to show deficiencies of many interpretations of the Court's decisions during this era, the author reminds us of Charles Warren's research demonstrating that 557 of the 560 state laws challenged under the Fourteenth Amendment's due process or equal protection clauses were upheld (p. 4). This point alone should be enough to make it difficult to sustain claims that the Court was engaged in significant judicial activism to strike down laws that regulate the economy or public welfare. However, the purpose of this introduction is to raise a series of questions explaining the Court's generally sympathetic deference to legislative decision making when it came to regulatory legislation, while at the same time the Court was particularly hostile laws setting minimum wages and maximum hours. How did the Court distinguish between valid and invalid economic legislation? Gillman's thesis to clarify these distinctions is presented on page 10 where he argues: ... the decisions and opinions that emerged from state and federal courts during the LOCHNER era represented a serious, principled effort to maintain one of the central distinctions in nineteenth-century constitutional law -- the distinction between valid economic regulation, on the one hand, and invalid "class" legislation, on the other -- during a period of unprecedented class conflict. The nineteenth-century distinction Gillman is most concerned with grew out the Jacksonian Era. It specified that the courts would uphold legislation if it promoted a "true" public purpose and not simply supported special, partial, or specific class interests (p. 10). We can understand LOCHNER Era jurisprudence, then, as an effort to adjudicate economic legislation based on whether or not the Court felt that the laws were the product of valid enactments for the public good or simply the product of pressure politics meant to favor a particular class or interest. Laws doing the latter, including LOCHNER, were invalidated. Chapters one through three provide solid review of constitutional law and doctrine leading up to the LOCHNER decisions. Here Gillman discusses FEDERALIST PAPERS numbers 10 and 51, showing how Madison's discussion of faction and the need to establish legislative neutrality became a standard constitutional principle of the nineteenth-century. For judges in the Jacksonian period, Madison and the Constitution were read as prohibiting special legislation favoring a particular class or group because it was presumed to be the result of factional politics. The Jacksonian Era judicial response was to forge a notion of police power adjudication which discriminated between Page 5 follows: legislation promoting the public welfare versus that which sought to adjust market relations to favor a particular class (p. 145). The Court opposed any legislation which supported a particular class unless general benefits could also be obtained (p. 103). This neutral vision of the state opposed to class legislation rested upon an image of autonomous and self- sufficient people operating freely in the marketplace. Moreover, this vision of human nature, the neutral state, and the police power doctrines that grew out of both remained viable until after the Civil War when the emergence of industrial capitalism challenged the continued viability of a vision of workers as autonomous and self-sufficient (p. 159). At this point, changes in the market, emergence of large trusts, and the increasing recognition that some individuals were placed in a vulnerable economic position forced a rethinking of legislative behavior as well as a crisis in constitutional doctrine. According to Gillman: ...the crisis in American constitutionalism that arose around the turn of the century becomes a story not of the sudden corruption of the law and judicial function, but rather of how the judiciary's struggle to maintain the coherence and integrity of a constitutional jurisprudence ultimately was derailed by the maturation of capitalist forms of production and the unprecedented efforts of legislatures to extend special protections to groups that considered themselves vulnerable to increasingly coercive market mechanisms (pp. 9-10). In short, the crisis of constitutional doctrine during the LOCHNER Era and up to 1937 was the refusal of the Court to accommodate its jurisprudence to the forces of industrialization that rendered invalid the old assumptions about a neutral market of autonomous individuals. How, when faced with legislative responses to industrialization, was the Court to respond? For Gillman, the Court tried unsuccessfully to continue to apply the old neutral police power jurisprudence and it struck down certain types of laws when it believed that they were the product of factional politics supportive of a particular class or interest. Thus, LOCHNER, as well as other types of economic regulation, especially those mandating minimum wages or hours of employment (p. 158) were singled out at especially troublesome for the Court. It was over these types of cases that the real test of public purpose was fought. Eventually, for Gillman, upholding minimum wage laws in WEST COAST HOTEL V. PARRISH (1937), as well as the dicta in footnote four of CAROLENE PRODUCTS V. UNITED STATES (1937), were recognition of the dismantling of most of the basic principles of LOCHNER Era jurisprudence and the nineteenth- century legal ideology that supported it. Gillman's conclusions address the relationships between legal ideology and political power. He seeks to demonstrate how judges can fashion an apparent neutral constitutional ideology out of certain visions of the market and political power. Also, in explicit reference to contemporary conservative control of the judiciary, Gillman hopes that the unmasking of LOCHNER Era assumptions should prevent these cases from currently being used as a weapon to defeat economic regulation (p. 205). By showing that LOCHNER does not stand for what conservatives think, he hopes to remove any precedent some may have to use the judiciary to support economic laissez-faire today. There is much to praise in Gillman's book. Forcing political scientists to rethink what the LOCHNER Era really represented is the most important contribution of this book. Second, efforts to connect Waite through Hughes Court police power decisions to Madisonian conceptions of factions and republicanism are provocative and suggestive of recent scholarship by William Nelson and Cass Sunstein. Moreover, Gillman's efforts to stress facial neutrality in constitutional theory, as well as the fear of class politics in LOCHNER jurisprudence, might, as he hopes, delegitimize one Page 6 follows: contemporary conservative trend in law. Yet it definitely adds historical support and precedent to public choice theories of judicial politics which fear the distortions of legislative policy making. Hence, the book's conclusions might damage claims of some recent economic conservatives arguing for reinvigoration of economic due process, but others like Justice Scalia might find support for their attack on legislative history and politics by reading Gillman. In effect, the motivations and rational for LOCHNER jurisprudence might not support a conservative jurisprudence, but the logic and holdings regarding class politics might do that nonetheless. Manipulating LOCHNER jurisprudence ideology gets to two important criticisms or questions regarding CONSTITUTIONAL BESIEGED. First, to what extent did the courts in the nineteenth-century use an apparent neutral legal ideology to mask policy preferences, versus to what extent was the ideology so intertwined with other assumptions about power, politics, and the market that the Justices did not realize the biases in their jurisprudence? Gillman appears to argue the latter position, hence painting many of the "conservatives" on the Court as facially neutral. Yet Gillman's claim may be overstated. For example, the LOCHNER judiciary was also the same one that was hostile to civil rights legislation for emancipated slaves, voting rights for women, child labor legislation, income tax, and federal Commerce Clause regulation. All of these decisions suggest more of an explicit political ideology at stake than Gillman seems to suggest. What we see in these cases and others are uses of the Commerce Clause, Eminent Domain Clause, and Tenth Amendment to articulate a particular vision of the American state and economy. In short, a second criticism of the book is that police power jurisprudence must be looked at in the context of decisions in several other areas of law to see if they are part of a larger legal ideology that Gillman asserts. Perhaps Gillman's claims about police power jurisprudence and fear of class based legislation might be able to explain these decisions. But there is a possibility either that the ideology Gillman describes was used to support property rights for reasons more akin to traditional understandings LOCHNER assumptions than he asserts, or a different ideology was invoked. Were Gillman to examine the police power in the context of many other legal principles, the claims he makes about neutrality, power, and legal ideology might need to be altered or modified. Despite these criticisms, CONSTITUTION BESIEGED is an excellent example of recent trends to revise and appraise the meaning of LOCHNER Era decisions. This book is must reading for all interested in constitutional law and its relationship to politics and the economy.

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The Constitution Besieged

The Rise and Demise of Lochner Era Police Powers Jurisprudence

By Howard Gillman

Duke University Press

Copyright © 1993 Duke University Press
All rights reserved.
ISBN: 978-0-8223-1642-8


The Origins of Lochner Era Police Powers Jurisprudence

The Constitution here referred to cannot be simply the document. It can only be that Aristotelian conception of the constituting idea or body of ideas which lies within the political system and, indeed, within the society generally and which by its presence qualifies the society and its political system to become a cohesive entity.—H. Mark Roelofs

The notoriety of Lochner v. New York (1905) rests on the widespread assumption that the case represents the corruption of judicial power in at least two respects. First, by invoking an ostensible right to liberty of contract to trump a maximum hours law for bakers, the majority took the unprecedented step of constitutionalizing an ethos of market freedom at a time when it was a matter of political dispute whether an unregulated market was always the best policy. Second, in announcing that laws interfering with liberty of contract would be upheld only if (in the opinion of the Court) they were "reasonable and appropriate" attempts to promote "the morals, the health or the safety of the people," Justice Peckham promulgated a doctrine that illegitimately gave the justices the authority to second-guess legislative conclusions regarding effective public policy—an authority that the members of the majority exercised with a vengeance when they gave their blessing to those sections of the Bakery Act that related to the conditions of the workplace as "reasonable and appropriate exercises of the police power of the State" but struck down those sections relating to working hours as merely "labor laws," unrelated to "the interests of the public" and therefore "unnecessary and arbitrary interferences" with personal liberty.

The implication of this characterization of the Lochner era is that the hostility exhibited toward certain types of legislation by turn-of-the-century jurists was a function of the idiosyncratic biases of unrestrained judges, and not a function of any standards or practices embedded in the American constitutional tradition. However, as I hope to show in this chapter, the essential elements of the Lochner Court's approach to the bakery law—the emphasis on market liberty, the belief that market liberty could be interfered with if legislation promoted a valid public purpose, and the suggestion that valid public-purpose legislation was distinct from laws that merely promoted the interests of some classes at the expense of others—were long-standing features of nineteenth-century police powers jurisprudence; these elements were inherited by Lochner era jurists, not invented by them. Maybe more fundamentally, the assumptions about the nature and scope of legitimate legislative authority that led the Lochner Court to void a maximum hours law were built into the structure and ideology of the Constitution itself at the time of the founding. In short, the judiciary at the turn of the century was, to a large extent, giving voice to the founders' conception of appropriate and inappropriate policymaking in a commercial republic, a conception that, over time, had been elaborated, clarified, and transformed into a workable set of doctrines by state court judges in the second quarter of the nineteenth century.

Looking back at the founding, and at the formative years of nineteenth-century police powers jurisprudence, will help reacquaint us with a political tradition that no longer governs the exercise of legislative power in American politics. Still, the language and preoccupations of that tradition shaped the contours of state-society relations for nearly a century and a half. It was a language that disdained "factional" politics, partial laws that represented the corrupt use of public power by certain groups seeking to advance purely private interests; it celebrated the value of state "neutrality," the principle that government should show no favoritism or hostility toward market competitors, but should exercise power only to advance a true public purpose. However, this language did not operate only at the level of flexible and indeterminate abstraction. Those who supported the Philadelphia Constitution used these concepts in the hope of delegitimizing certain kinds of laws passed by democratic state legislatures in the 1780s, laws such as debtor-relief legislation and wage and price controls. The framers insisted that their "more perfect union" would ensure that legislatures remained neutral with respect to the conflicts arising among and between social groups competing in the private economy. In the second quarter of the nineteenth century this language was used by Jacksonian Democrats to assault what they considered to be all sorts of unnecessary and illegitimate special privileges bestowed by legislatures. Over time, state courts began to use the language to distinguish legitimate exercises of state power from exercises of state power that did not, in their judgment, deserve to be called the "law of the land." Thus in history did this political tradition become meaningful rather than merely rhetorical. In order to appreciate the way this tradition shaped the nineteenth- and early-twentieth-century judiciary's understanding of the scope of legitimate legislative authority—including the Lochner Court's understanding—it is important to pay some attention to the historical evolution of this tradition.

One other lesson relevant to the Lochner era can be mined from these earlier events, and it has to do with the reason why this long-standing tradition came into disrepute around the turn of this century. When the master constitutional principle of formal equality or government impartiality was first elaborated by the framers in the 1780s, its legitimacy rested specifically on the assumption that a commercial republic would not create conditions of social dependency that could be used by vulnerable groups to justify requests for special government protection and assistance. If, as the framers argued, the market was essentially harmonious and liberty loving, and if the almost endless access to the freehold on the American frontier ensured that those who might happen to find themselves in pockets of dependency would always be able to escape these conditions and become free and independent citizens, then there was little justification for allowing the government to intervene in the conflicts that arose among groups competing in a free market. So long as people considered this depiction of the social implications of capitalism to be an accurate representation of their own experiences, the neutral state remained a relatively uncontroversial characterization of American first principles. However, at the same time the founding vision was being translated into political practice and constitutional law, capitalist forms of production were beginning to mature; and throughout the nineteenth century those who felt disadvantaged by these developments began increasingly to question the validity of the assumptions that sustained the founding vision, assumptions about social independence in a commercial republic. An appreciation of the foundations upon which the neutral polity was built will help us understand why this tradition was besieged toward the end of the century during a period of intensifying class conflict.

The Founders' Vision of a Republic Free of Factional Politics

A century before Lochner era judges worked to block certain kinds of government interference in the market, another group was directing its efforts toward the promotion and protection of commerce and the eradication of certain kinds of "factional" legislative practices designed to advance the special or partial interests of certain groups or classes. The story of the Lochner era should begin with these earlier efforts, for the distinctions Lochner era judges attempted to draw between valid public-purpose legislation, on the one hand, and invalid class legislation, on the other, had their origins in a similar set of distinctions elaborated by the framers of the Constitution as they struggled to promote their vision of the American Republic and to marginalize or delegitimize competing sets of political practices and traditions.

Setting aside for the moment the politics of slavery at the time of the founding, it is possible to see the Constitution as the product of the efforts of a coalition of groups that had banded together largely out of a shared commitment to the promotion and preservation of a harmonious and liberty-loving market against those who insisted that government had a responsibility to interfere in market relations on behalf of vulnerable classes such as wage earners, debtors, and small farmers. To say that the American founding represented (among other things) the protection of capitalist social relations is not to deny that many of the founders' contemporaries expressed hostility at the idea that government would be preoccupied with commerce. Many members of the landed aristocracy rooted their social vision and conception of good government in the tradition of civic humanism, in which the "Renaissance vocabulary of power, corruption, degeneration, virtue, stability, and balance" made reasonable their claim that a republican form of government would be preserved only if power rested with the independent, wise, talented, refined, and selfless proprietary class and if government resisted the temptations of the commercial spirit. While not unanimously behind the notion of rule by a propertied elite, evangelical social reformers were also interested in returning society "to its ascetic beginnings, where civic virtue, spartan living, and a disdain for worldly things had prevailed." However, support for this neoclassical tradition, which put great emphasis on the obligations of citizenship and popular deference to wise and virtuous leaders, had been eroding for some time as people began to experience the final breakdown of feudal authority and the liberating effects of an increasingly integrated economy, developments which "involved modes of behavior and political stances diametrically opposed to the constitutional ideal of the disinterested citizen living on his own, cultivating the public weal, and committing his virtue to the maintenance of a rightly-ordered constitutional monarchy." As early as the late seventeenth century, commercial elites ("monied men but without estate"), buoyed by their faith that the general welfare of the community was best served by sound promotion of this commercial development, had begun to express their experiences in whig ideology, which encouraged individuals to pursue their private interests in the market and the government to pursue policies that would contribute to the commercial expansion and trading interests of England.

Still, at the time of the American Revolution, neither Whig ideology nor the tradition of civic humanism represented hegemonic and homogeneous idioms of politics; different classes drew on the rich and diverse languages of liberalism and republicanism differently, and in the process they constructed and elaborated ideologies meaningful for their particular experiences. The urban gentry—men like Thomas Hutchinson of Boston and the import-export merchants, lawyers, physicians, and wealthy clergymen who supported him—"adhered to the canons of Whig political theory, including balanced government, the vital role of a legislature elected by propertyholders, and equal justice before the law"; they also "openly espoused the world of international trade and capitalist relations and in this sense they were 'modernizers.'" Yet they were profoundly conservative in their social philosophy, believing in hierarchy and order and expecting those who lacked "a sufficient stock of reason and knowledge" to defer to their political stewardship. For others, the civic humanist and conservative Whig idea of "advancing the common good under the direction of those at the top of society was clearly seen as a mask for protecting the interests of the economically dominant." Commercial middling classes—local traders, ship captains, unpedigreed lawyers, small manufacturers, mechanics, tradesmen, craftsmen, small farmers, and others who championed the virtues of the commercial life because they experienced greater opportunities for social advancement than could be expected in more rigid social structures—agitated throughout the eighteenth century for a greater role in politics. Their liberal Whig social vision not only accepted the legitimacy of private profit seeking but also "projected a future economic world in which men's energies, cut loose from age-old mercantilist controls instituted to promote the good of all, would produce a common good far better"; this prompted many of them to lead "the opposition to the new regulation of economic life by England" in the years leading up to independence. They also believed strongly that "liberty was essentially the condition of being secure in one's property, which they held in modest to substantial amounts, and they had little desire to share political power with the ... growing mass of propertyless and impoverished city dwellers below them."

An important variation on this petit bourgeois liberalism was embraced and promulgated by groups such as Philadelphia's artisan community, who attempted to nurture the liberating qualities of the new social order while mitigating the market's threat to communal and egalitarian traditions that had deep roots in "popular" English culture. They believed that the development of the private economy had enabled them to become independent, self-reliant producers and citizens—men who possessed the simple virtues that found expression in Benjamin Franklin's aphorisms (such as industriousness and frugality); it also made them fully capable of participating in public affairs, notwithstanding the conservatives' attempts to discredit them by referring to them as "mean" or "vulgar." But they also recognized that market freedom enabled selfish merchants to indulge their private greed at the expense of members of the community, particularly the laboring poor, who had limited aspirations for capital accumulation and whose well-being was vulnerable to market fluctuations in prices and wages. Because they had experienced the market as a mixed blessing, many artisans felt that the community had the responsibility to ensure that market mechanisms did not result in the establishment of conditions of social dependency such that one person's well-being was dependent on the actions of another. Should this occur, they argued, it would be appropriate for government to intervene on behalf of some groups competing in the marketplace— protecting debtors from creditors (through the passage of insolvency laws), workers from employers (by setting and protecting wage rates), and consumers from producers (by imposing price controls)—and to prevent the establishment of great divisions in wealth; for as Rousseau had argued, in a true republic, "no citizen [should be] rich enough to be able to buy another, and none so poor as to be forced to sell himself."

The image of the self-reliant or autonomous individual was central to many different versions of republican ideology. Such independence had traditionally been considered a prerequisite for civic virtue, or at least for "responsible" participation in the political process, in that it provided the leisure with which to refine one's talents and the material security that enabled one to set aside purely private interests—to be "disinterested"—in the consideration of public policy. Historically, both the gentry and the merchant elite had used the fact of their wealth as justification for their ostensibly selfless stewardship of the general welfare. Liberal Whigs used their developing status as independent and autonomous producers to agitate for their participation in the polity. Still, at the time of the founding, most Whigs did not agree with artisan republicans that the preservation of a citizen's social independence necessitated entangling government in conflicts between competing groups or classes. While some ambivalent American Whigs joined with the artisans in worrying that commercial development might create conditions of social dependency, many took faith in the belief that the problem could be handled without direct government interference in group or class conflict by simply improving access to the freehold for dependent laborers and promoting free-trade policies that would provide markets for industrious farmers and cheap goods for consumers. As Benjamin Franklin put it, "no man who can have a piece of land of his own, sufficient by his labour to subsist his family in plenty, is poor enough to ... work for a master."


Excerpted from The Constitution Besieged by Howard Gillman. Copyright © 1993 Duke University Press. Excerpted by permission of Duke University Press.
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