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Howard Gillman is Associate Professor of Political Science at the University of Southern California.
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The Constitution Besieged
The Rise and Demise of Lochner Era Police Powers Jurisprudence
By Howard Gillman
Duke University PressCopyright © 1993 Duke University Press
All rights reserved.
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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