This entry is a subentry of History of the Court.
From 1789 to 1865 the Supreme Court's most compelling concerns had been to establish its own constitutional authority, to establish the scope of the powers of the national government, and to define the relations between the national and the state governments. By the end of the Civil War in 1865, the Court's authority as expositor of the Constitution was well accepted. Moreover, the war itself established the national character of the central government and the apparent breadth of its powers. The proslavery record of the Court, however, especially its disastrous decision in Dred Scott v. Sandford (1857), had weakened its authority (see Slavery). It seemed quite possible that the now‐dominant Republican party would challenge the Court's claim to review national legislation. At the same time, the Civil War and Reconstruction precipitated a potentially revolutionary change in the federal system. Finally, tremendous economic and social changes, associated with the rise of modern American industrialism, took place in the decades following the Civil War. These raised constitutional issues about property rights and government regulation that would come to dominate the Supreme Court's agenda.
Reconstruction
After the Civil War, Americans faced the difficult problem of how to reconstruct both the Union and the individual southern states. Despite significant opposition on the part of northern Democrats aided by President Andrew Johnson, who succeeded Abraham Lincoln, the Republican party was able to maintain control of the national government. Republicans were deeply committed to protecting the basic rights of the newly freed slaves and of white southern unionists. Closely related was a determination that unreconstructed Confederates not be permitted to resume control of the southern states. But these commitments had to be reconciled with the general desire for a speedy restoration of the Union, for generosity to rebels who demonstrated renewed loyalty, and for the maintenance of a balanced federal system.
Republicans determined to establish a program to secure these goals before they restored southern states to normal relations in the Union. Ultimately, Congress passed a Reconstruction Act (1867) that declared the Johnson‐authorized governments provisional and placed them under military authority until Congress recognized new governments to be established by constitutional conventions and subsequent elections.
These decisions raised the profound constitutional question of the status of the southern states and people upon the close of the war. White Southerners, northern Democrats, and President Johnson were convinced that Republicans were abrogating the rights of the southern states and unconstitutionally subjecting the southern people to military government. As northern Democrats and Johnson lost the political struggle to the Republicans, white southerners appealed to the Supreme Court.
They had some hope of success, because in Ex parte Milligan (1866) five of the justices opined that Congress could suspend the privilege of habeas corpus and authorize military trials—a key element of military supervision of the South—only when ordinary courts were closed by invasion or insurrection. Moreover, in Cummings v. Missouri (1867) and Ex parte Garland (1867) the justices by 5‐to‐4 margins had signaled their distaste for the Republican program by ruling that test oaths could not be used to bar former rebels from practicing their professions. The “test oath” laws made the ability to take an oath of past loyalty a test for admission to the bar, clergy, or other influential professions.
These decisions led to charges that the Court was continuing its old proslavery ways. Leading Republicans in Congress proposed to strip the Court of the power to review national laws or to require two‐thirds majorities to rule federal laws unconstitutional. But in Mississippi v. Johnson (1867) and Georgia v. Stanton (1868), the Court refused requests from the Johnson‐organized state governments for injunctions restraining the president and his secretary of war from enforcing the Reconstruction Acts (see Judicial Review).
The Court exercised judicial restraint again in Ex parte McCardle (1869), in which southerners challenged the Reconstruction Act's provision for military trials and the constitutionality of the Reconstruction Act in general. Although several justices wanted to speed the decision, the majority refused, allowing Congress to repeal the legal provision under which the case had been brought. The Court then agreed that the repeal had destroyed its jurisdiction, even though the case had been pending.
The Court's discretion helped to restore its moral authority as a neutral expositor of law. But despite their concerns, most Republicans never intended to attack the Court as an institution. On the contrary, they recognized that it would be a crucial instrument for carrying out their program to provide federal protection for civil and political rights.
The Republican Program
There were two aspects to the Republican Reconstruction program. First, Republicans tried to reshape the southern states in such a way that the state governments would themselves provide equal protection for the rights of citizens. Rejecting radical proposals to redistribute property, take over education, and reduce the states to territories directly subject to congressional control, Republicans relied primarily on giving black men the right to vote through the Reconstruction Act and the Fifteenth Amendment to the Constitution, ratified in 1870. If politically empowered, black Southerners would be able to demand protection in their rights in exchange for their votes, Republicans believed.The second element of the Republican Reconstruction program was to pass national laws and constitutional amendments barring states from depriving citizens of basic rights and mandating their equal protection. The Civil Rights Act of 1866 defined as citizens everyone born in the United States except untaxed Native Americans, who were still subject to tribal government (see Citizenship). It then declared that every citizen was entitled to the same basic rights (which it listed) as white citizens, notwithstanding any law, ordinance, rule, or custom to the contrary. The Civil Rights Act of 1875 barred discrimination in inns, transportation, and amusement places. The Thirteenth Amendment, ratified in 1866, abolished slavery. The Fourteenth, ratified in 1868 declared all persons born in the United States and subject to its jurisdiction to be citizens of the Court. It forbade states from abridging the privileges or immunities of United States citizens; from depriving any person of life, liberty, or property without due process of law; and from denying any person equal protection of the laws. The Fifteenth Amendment, as already noted, barred both the states and the United States from making racial discriminations in voting rights. Each amendment authorized Congress to pass appropriate legislation to enforce it, and the Republicans did so immediately upon their ratification.
Potential in these laws and amendments was a radical change in the federal system. The primary responsibility for protecting the ordinary rights of citizens had always lain with the states; the national government had never been able to enforce the few provisions in the pre–Civil War Constitution that guaranteed civil liberties against state invasion. If the states themselves did protect rights equally obeying the mandates of the new laws and constitutional amendments, then the practical change in the federal system would be minimal. But if they refused, then Congress would have to enforce them. In that case Reconstruction would mark a revolutionary change in the federal system, with the national government passing laws forcing the states to fulfill their constitutional responsibilities and perhaps directly assuming the job itself. Therefore, the more successfully the Republicans completed the first part of their program, the less radical would be the practical effect on federalism of the second.
The form of the Fourteenth and Fifteenth Amendments indicated the leading role Republicans expected the courts to take in their enforcement. Republicans framed them on the pattern of limitations that Article I, section 10 of the Constitution had placed on state authority to impair the obligation of contracts, regulate interstate or foreign commerce, and other matters—limitations that the federal courts had vigorously enforced before the war and that Article VI of the Constitution obligated the state courts to enforce as well.
Moreover, in a series of laws culminating in the Removal Act of 1875, Republicans authorized parties to remove cases to federal courts when they could not secure federally guaranteed rights in the state courts. In fact, the 1875 act authorized the removal to the federal courts of any case arising under the federal Constitution, laws, or treaties, and for the first time gave the lower federal courts original jurisdiction in all such cases.
Republicans hoped that further national legislation would be unnecessary because more direct national enforcement would threaten the balance of the federal system, something most Republican policymakers themselves did not desire and something that might cost them political support. But when black voters placed Republicans in control of the governments of most of the southern states, the great majority of southern whites refused to accept their legitimacy. They resisted with terror and violence. When southern Republican governments proved unable to protect their citizens, the Republican Congress and President Ulysses S. Grant were reluctantly forced to protect them by direct legislation.
Congress passed laws making it illegal to conspire to violate rights secured by the Constitution and laws of the United States. At first the Republicans aimed the laws at people acting under the color of state authority, but finally they had to direct the laws at terrorism carried out by private citizens. The Force Act of 1871—often called the Ku Klux Klan Act—authorized President Grant to suspend the privilege of habeas corpus and use troops to suppress violence. Grant regularly sent federal troops to keep the peace during election campaigns, at the request of state authorities or United States marshals and district attorneys.
Republican legislation after 1870 made the revolution in federalism that had been potential in the Civil War Amendments real. A vocal and influential minority of Republican leaders insisted that these laws went beyond the powers delegated by the amendments, arguing they were aimed at state action alone. Democrats took an even narrower view of their meaning. By the mid‐1870s enough northerners were alienated by the course of events to threaten Republican control of the national government. As a consequence, Republicans ended their most dramatic efforts to intervene in the South, allowing southern Democrats to regain control of their state governments through violence and fraud.
Dual Federalism
At first the federal courts seemed to sustain a broad interpretation of the power the Civil War Amendments had delegated to the national government to protect civil and political rights. However, by the time cases reached the Supreme Court, many Americans had begun to worry that national efforts to protect rights were undermining the federal system. In 1872 the Supreme Court heard its first case testing a Reconstruction law, Blyew v. United States. The Court's decision demonstrated its concern that congressional legislation might alter the federal system too radically. Blyew and an accomplice had been convicted in federal court of murdering blacks in Kentucky. Kentucky had indicted them, but federal marshals removed them from state hands and brought them to trial in the federal district court because Kentucky did not allow blacks to testify in cases to which they were not parties. The Court ruled that only the state and the defendant were parties in a criminal case and that therefore Kentucky's indictment of Blyew raised no issues under the Civil Rights Act. Congress, the justices held, could not have intended that the federal courts take jurisdiction of any case in which a party alleged that a black witness might give evidence.This concern reflected the general understanding of federalism that most Americans shared in the nineteenth century. No matter where they drew it, nearly all agreed that there was some line separating state from federal jurisdiction and marking an area where state authority was supreme. Ordinary criminal law enforcement, health and safety regulations, and the day‐to‐day relations of local citizens all were on the state side of that line. Although the majority of the justices of the Supreme Court after the Civil War identified with the Republican party, they made clear that they adhered to this traditional understanding, which scholars call dual federalism. In cases such as Texas v. White (1869), the justices affirmed that the national and state governments were equally sovereign and supreme in their own spheres, with neither subject to the other within those spheres. In Collector v. Day (1871), the Court held that the Constitution imposed implied limitations on national authority to legislate within state jurisdiction, even when carrying out expressly delegated powers.
Like other Republicans, most of the justices were committed to the principle that in carrying out these responsibilities the states must not invade the liberty of citizens or discriminate against citizens on racial grounds. But the Blyew case had raised the specter that the national government would enforce that policy by replacing state law enforcement in general—in this case replacing the state's murder prosecution with its own. Since the enforcement sections of the Civil War Amendments gave the broadest latitude to congressional power, authorizing all legislation “appropriate” to carry out their provisions, the prospect was very real. According to the principle firmly established in the great case of McCulloch v. Maryland (1819), any federal laws that “are plainly adapted” to achieving a purpose authorized by the Constitution were “appropriate” and thus constitutional (p. 421).
The first dispute to directly test the meaning of the Fourteenth Amendment before the Supreme Court raised the problem starkly. It did not involve the rights of blacks at all. Instead, the Slaughterhouse Cases (1873) involved Louisiana butchers who claimed that a health law regulating the slaughtering of animals deprived them of their right as citizens to freely practice their occupations. Nothing could have been better calculated to demonstrate to the justices the far‐reaching potential of the Fourteenth Amendment. Even if the justices ruled that the law was a reasonable exercise of the state's police power, it would encourage future Fourteenth Amendment challenges to ordinary state laws simply by considering the issue. It would, the majority of the justices said, make the Court “a perpetual censor upon all legislation of the states” that could be construed to violate someone's civil rights (p. 78).
To avoid the result, the majority of the justices arrived at a tortured construction of the Privileges or Immunities Clause of the Fourteenth Amendment. The amendment barred the states only from depriving persons of those privileges or immunities they held as United States citizens, as distinct from those they held as state citizens. Ordinary rights, such as those to follow one's occupation, make contracts, and dispose of property were associated with state citizenship and were not the subject of the Fourteenth Amendment. The judges in effect avoided a result that Republicans had not intended when they passed the Fourteenth Amendment by construing an important section of it in a way they had not intended either. The result of this opinion, never reversed, was virtually to eliminate the Privileges or Immunities Clause as protection for civil liberty.
The Slaughterhouse decision did not make clear just what were the “privileges or immunities of citizens of the United States.” Some federal law‐enforcement officials maintained that they must include those specified in the Bill of Rights, since those were the privileges Americans had held in their relationship to the government of the United States. In Hurtado v. California (1884), the Court interpreted the meaning of the amendment's Due Process Clause in a way that clearly precluded it from protecting any of the liberties specified in the Bill of Rights.
The justices manifested a similar concern for maintaining the federal system in cases involving federal prosecutions of criminal conspiracies to deprive persons of their constitutional rights. They sustained the Ninth Circuit Court's vigorous defense of the rights of Chinese against discriminatory legislation in California and Nevada. The justices also firmly sustained national power to prosecute any state officer, even a judge, who violated Fourteenth or Fifteenth Amendment rights or laws governing federal elections; they rejected arguments that prosecution of state officials violated the basic tenet of dual federalism—that the state and national governments were equally sovereign and that neither could be subjected to the other. The justices dismissed dual‐federalist objections and sustained Congress's power to authorize the removal of cases from state to federal courts when parties could not secure equal rights there. But the Court drew the line when the federal government tried to prosecute private citizens who did not act under state authority. Replacing state enforcement of ordinary laws with federal enforcement posed too great a threat to the federal system.
The Court Restricts Reconstruction Reforms
In a series of cases, the justices tried to work out a position that both preserved the federal system and saved national power to protect the fundamental civil and political rights of the former slaves. To preserve traditional federalism the Court posited the state‐action doctrine of the Fourteenth Amendment, articulated with particular clarity in the Civil Rights Cases (1883). The amendment did not authorize the national government to protect rights directly, the justices held. The government could act only against state action that deprived rights. The Court's language has been taken to mean that only positive state actions are subject to the amendment. The Thirteenth Amendment, which was not framed in terms of state action, did authorize Congress to protect basic rights of freedom against violation from any source. But only the most fundamental of rights came under that protection. Despite its apparent state‐action language, the Fifteenth Amendment did invest people with a positive right to vote without racial discrimination, and Congress could enforce that right against anyone who violated it whether under color of state authority or not. Finally, the nature of the federal system implied that Congress had plenary authority over federal elections, and it could pass any law whatsoever to protect their integrity.All this suggested rather broad congressional power to protect civil and political rights, but the actual decisions in which these positions were taken badly undermined the Republican Reconstruction program. Ironically, Republicans had avoided framing Reconstruction statutes in such a way as to specifically protect blacks from discrimination. The Court therefore declared several provisions of the Enforcement Acts unconstitutional because they failed to specify that private individuals could be prosecuted only if they deprived people of rights on account of their race or previous condition of servitude. Likewise, the Court found indictments wanting for failing to specify such racial motivations. In the political climate of the times, the decisions were perceived to be virtual endorsements of southern violence and signs of hostility to Reconstruction in general.
Likewise, the Civil Rights Cases, while articulating grounds under which Congress could protect fundamental rights under the Thirteenth Amendment, ruled the Civil Rights Act of 1875 unconstitutional. Observers naturally noted its trenchant articulation of the state‐action doctrine and the apparent endorsement of racial discrimination more than its reservation of power to Congress.
Finally, after Congress narrowly failed to pass a tough, new law to enforce the Fifteenth Amendment in 1890, new justices on the Supreme Court did take overtly racist constitutional positions. In Plessy v. Ferguson (1896) the Court sustained state‐required segregation of government and other public facilities in an opinion that not only found the laws constitutional but that seemed to endorse them. Although the decision found separate‐but‐equal facilities to conform to the Equal Protection Clause of the Fourteenth Amendment, the Court for decades ignored the equality part of the separate‐but‐equal doctrine and never applied it to laws mandating segregation of private business. In James v. Bowman (1903) the Court applied the state‐action doctrine to the Fifteenth Amendment (see Segregation, De Jure).
In sum, the Supreme Court's effort to preserve both the federal system and national power to protect rights proved a failure, and it has generally been condemned by historians and legal scholars, who have often failed to recognize the degree to which the effort was made. Beginning in the 1910s, the Court began a slow process of ruling unconstitutional state laws that too overtly violated the Civil War Amendments. Not until the middle of the twentieth century would it reverse the crippling decisions of the 1890s and 1900s.
Federalism and Economic Change
From its founding, the United States had always been a commercial nation. The Constitution itself was framed and ratified by men who believed that commercial success required stronger central government. But between the Civil War and the first decade of the twentieth century, commercial activity expanded and changed radically. A great revolution in transportation, precipitated by the application of steam engines to sea and land travel, created a national, and to some degree international, marketplace.
American agricultural products, always exported in large amounts, came into competition with newly opened European and Asian agricultural regions. Prices declined for many crops and economic pressure on farmers intensified, especially in the West and South, where farm debt was highest. Local manufacturers, no longer isolated, had to meet competitors from around the nation, although a system of protective tariffs kept international competitors out of American markets. Companies sought to survive price competition by increasing output while reducing production costs. Both goals were accomplished by the application of technology to manufacturing. Not only did new industrial technology increase the amount one worker could produce, it simplified jobs, permitting the substitution of low‐paid unskilled and semiskilled labor for highly skilled craftsmen.
Huge industrial concerns began to replace small producers. In 1900 nearly eleven million people worked in manufacturing, mining, construction, and transportation, with another three million in trade and finance, outnumbering those in agriculture by some three million.
The nationalization of the economy led the federal government to take a larger role in promoting and regulating it. Congress established a protective tariff to shelter American industries from international competition in their home market, created a national banking system, and regulated both the amount of currency in circulation and its distribution. It subsidized railroad and canal building, the improvement of harbors, the establishment of rural roads and stage lines, and the operation of international steamship companies. In 1887 Congress established the Interstate Commerce Commission to regulate railroads, and in 1890 it passed the Sherman Antitrust Act to combat overconcentration of economic power. It came under pressure to set an example in labor relations by establishing an eight‐hour day for government employees. Slowly, it began to exercise a national police power through regulation of interstate and foreign commerce and by barring the importation of undesirable goods and banning their distribution through the mail or interstate commerce. Some of these activities came under attack in the courts for going beyond the powers the Constitution delegated to the national government.
State Regulation
Economic and social changes also put pressure on state governments, which had to provide services to a growing, more urban population and faced demands from various groups to help cope with problems that grew out of the economic transition. Like the national government, state governments had always responded to demands to help develop American transportation and industry, but in a simpler society the free market had seemed to provide adequate regulation, with individuals protecting their own interests through freely made contracts. The triumphant antislavery movement had embodied this understanding, granting to black Americans the same ability to protect their interests as whites.The fervor of the antislavery struggle recommitted most Americans to this system just as economic change made its effectiveness questionable. The traditional system had been based on a equality of power between contracting parties that the growth of big business destroyed. Yet many objected to demands for government regulation to protect farmers, workers, and others from the sometimes devastating effects of the change, or to protect consumers in general from the growing power of producers and transportation companies. Such regulations smacked of “class legislation”—the use of government power to benefit one person or class in the community at the expense of another. Shocked by the proliferation of demands for such legislation—by farmers, by workers, by blacks in the South and immigrants in the cities of the North—many Americans perceived a concentrated “socialistic” or “agrarian” demand for the redistribution of property. In response, they insisted that government had no right to redistribute wealth. The free market distributed rewards justly, they maintained, and the government must not intervene; it must follow the “let‐alone” principle—what political economists call “laissez‐faire.”
Moreover, since the national companies, especially the railroads and insurance industry, were controlled by northeastern financial interests, southerners and westerners viewed excess profits and rates that favored eastern over local merchants as exactions, unfairly transferring wealth from one region of the country to another. Some state regulations were designed to bring these “alien” forces under a degree of local control and prevent the worst abuses. In turn, the owners and managers of the regulated industries complained of local bias.
Nonetheless, state governments often responded to demands for regulations. At the behest of farmers and small businessmen many states passed so‐called
Defeated in the legislatures, businessmen often turned to the courts—and ultimately the Supreme Court—for succor, arguing that such legislation violated constitutional protections of liberty, unfairly oppressed out‐of‐state corporations, or infringed on interstate commerce. The Court had to deal with the beginnings of the modern regulatory state in the framework of a federal system; it had to decide not only what the Constitution permitted government to do, but which government had the constitutional authority to do it.
The problem of adjusting constitutional doctrines of federalism to the modern national economy proved particularly difficult. The Court was committed to preserving the traditional federal system, yet it was extremely sensitive to the pressure on local governments to discriminate against outside economic interests on behalf of their own. Likewise, the justices were aware of the economic burdens that a myriad of conflicting local regulations placed upon national businesses.
The Court took a firm line when western and southern state and local governments tried to escape paying the principle and interest on bonds issued to subsidize railroad building or to avoid fulfilling guarantees to pay off railroad company bonds when a company defaulted. The issue arose as many railroads failed to complete their lines or went bankrupt in the hard times of the late 1860s and the 1870s. If the states succeeded in repudiating the debts, eastern and foreign bondholders would be the losers. Local governments alleged that many of the bonds were secured or issued fraudulently. State courts ruled guarantees of railroad bonds null and void because legislatures had lacked the constitutional authority to issue them. But in a line of cases stemming from Gelpcke v. Dubuque (1864) the Court protected the out‐of‐state investors, holding that such repudiation violated the Constitution's obligation‐of‐contracts clause.
The Court likewise protected representatives of out‐of‐state corporations from special taxes and discriminatory license fees. The key cases were Welton v. Missouri (1876) and Robbins v. Taxing District of Shelby County (1887). The first overturned a law requiring licenses to sell goods produced out of state, the second overturned a law requiring a license of all traveling salesmen. Similarly, the Court overturned freight taxes levied on interstate commerce.
The federal courts also took a generous view of the Removal Act of 1875, permitting almost any out‐of‐state corporation to remove a case from the state to the federal courts on an allegation of bias. At the same time, out‐of‐state corporations became more and more likely to take advantage of new laws to bring cases in federal rather than state courts. All this led to a significant increase in the business of the Supreme Court and the other federal courts, which ultimately forced Congress to restructure the federal judiciary in the Circuit Court of Appeals Act of 1891 (see Judiciary Act of 1869). That law created federal circuit courts of appeals with final jurisdiction in many areas, subject only to the Supreme Court's certification by writ of certiorari that it accepted an appeal.
Yet the justices also tried to maintain states' authority to regulate businesses within their boundaries. In Paul v. Virginia (1869), for example, they declared that the insurance business involved state rather than interstate commerce. They then reaffirmed the old rule that states could bar companies incorporated elsewhere from doing business within their boundaries. The Court sustained state taxes challenged on the ground that they inhibited interstate commerce. It sustained state temperance and prohibition legislation against challenges that it trespassed on the interstate commerce power reserved to Congress.
The Court at first sustained state efforts to regulate interstate railroads. In Munn v. Illinois (1877), it upheld the far‐reaching authority states granted to their railroad commissions. By the 1880s, however the Court decided that such authority was incompatible with the national transportation system that had developed. It began to overturn various health, safety, and civil rights laws that states had applied to interstate transportation companies. In Wabash, St. Louis & Pacific Railway Co. v. Illinois (1886), it limited state power over railroads in general, precipitating the creation of the Interstate Commerce Commission in 1887.
Supreme Court and Federal Regulation
While it sustained state regulatory power, the Supreme Court plainly was troubled when the national government used its delegated powers to secure ends normally considered within the police powers of the states. The crucial question was whether the Tenth Amendment, which reserves to the states or people all powers not delegated to the United States, precluded the national government from using delegated powers, such as that over interstate commerce, as means to secure undelegated ends. Such a construction lay at the heart of dual federalism, because it meant that there was a line separating state and national sovereignty that the national government could not cross. Therefore the Supreme Court quickly ruled unconstitutional a national law barring adulteration of kerosene with dangerous naphtha in United States v. DeWitt (1869). The Court held that states alone had the authority to pass such a safety regulation.The Court's clearest and most controversial articulation of the dual‐federalist position came in United States v. E. C. Knight Co. (1895), when the national government brought suit under the Sherman Antitrust Act to break up a sugar refining company that controlled about 90 percent of all the sugar refined in the United States. The Court interpreted the Sherman Act to apply only to trading activities, not to production. Otherwise, the Court said, the act would infringe upon the exclusive right of the states to regulate local business.
Yet the Court sustained congressional use of the postal and commerce powers to promote good morals, perhaps because it viewed these laws as augmenting similar state regulations rather than as competing with them. Thus in Ex parte Jackson (1878) the Court sustained the Comstock Act (1873), which barred pornography from the mail. In Champion v. Ames (1903) it sustained a law banning the sale of lottery tickets through interstate commerce.
Property Rights
As the justices wrestled with questions of federalism and the economy, they also had to grapple with what property rights the Constitution secured against government regulation in general. The courts had a long heritage of protecting such rights. In the early years of the Republic, judges had agreed that laws occasionally wrongfully deprived individuals of vested rights—that is, property rights to which they had become fully entitled and that were not dependent on any contingent event. All agreed that governments could not simply confiscate property, for example. Particularly troubling were state laws that seemed to transfer a right to property from one person to another, or one group of people to another. By the 1840s it was quite common for state courts to hold that such legislative acts violated state constitutional provisions stating that one could be deprived of property only according to “the law of the land” or according to “due process of law.”At the same time, the definition of property expanded dramatically. Originally limited to material things, “property” also came to refer to the commercial use one could make of them. Thus government limitations on the use of property, as well as physical takings, could be considered confiscation. This new conception of property increased the instances in which government regulations might be challenged as violations of vested rights. Nonetheless, before the Civil War, courts had ruled few regulations unconstitutional for violating property rights. States had a police power to regulate property rights for the benefit of the health, safety, and morals of the community, and so long as challenged laws served such a purpose, courts had held that they did not deprive persons of property without due process.
The Supreme Court had indicated a similar understanding of the meaning of “due process of law” in dicta in Scott v. Sandford (1857). The Constitution's Due Process Clause, however, appeared in the Bill of Rights, which according to Barron v. Baltimore (1833) limited only the federal government, not the states. Therefore, although limitations were able to secure relief when state legislation could be construed to impair the obligation of a contract, before the Civil War they could not appeal to the Supreme Court to overturn other state laws that deprived them of property without due process.
The ratification of the Fourteenth Amendment, which included both a Due Process Clause and a clause protecting privileges or immunities of citizenship, seemed to present the Court with the jurisdiction it had lacked. The Fourteenth Amendment was ratified just as demands grew for increased government action to cope with economic change and as opponents of such activity argued it amounted to class legislation that deprived them of property without due process of law. Litigants soon began to challenge various laws as violations of the Fourteenth Amendment.
Fearful of disrupting the traditional balance of the federal system, the Court at first rejected the invitation to use the Fourteenth Amendment to limit state authority in the Slaughterhouse Cases. However, the four dissents in that decision encouraged further attempts. Almost immediately railroad companies made a concerted effort to overturn the Granger laws, insisting that the maximum rates set by the state railroad commissions amounted to confiscation of their property for the benefit of the shippers. Once again a narrowly divided Court refused to intervene. In Munn v. Illinois (1877), the justices reasoned that some businesses, such as inns, mills, warehouses, and roads, had traditionally been “affected with a public interest” and therefore were subject to broad government regulation.
But conflict over economic regulation grew more intense in the 1880s and 1890s, which were punctuated by strikes and labor‐related violence. The People's party, or Populists, gained widespread support in the early 1890s by calling for government action to remedy the inequities of the new industrial system. In 1896 the Democratic party seemed to endorse the calls for radical reform, entering the presidential election on a platform of inflating the currency to help southern and western debtors at the expense of north‐eastern and urban financial interests.
These proposals challenged conservatives' conceptions of constitutional liberty, and the Court came under ever‐greater pressure to limit how far government could go in regulating property rights. Even as it sustained state economic regulations in the 1870s and 1880s, the Court explicitly reserved the power to rule truly confiscatory laws unconstitutional. Finally, as Populist strength grew, the justices became convinced that the Court must serve as the bulwark of property rights against threatened radical legislation. In the 1890 Minnesota Rate Case—Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota—the Court ruled a railroad commission law unconstitutional because it provided for no judicial review of the reasonability of the rate. An unreasonably low rate would be confiscatory and unconstitutional. Implicitly, the justices were imposing on the courts an obligation to determine what rate was reasonable (see Rule of Reason). In Reagan v. Farmers' Loan & Trust Co. (1894) and Smyth v. Ames (1898), the Court finally held particular state‐imposed rates unconstitutional. From that time forward shippers regularly appealed rate decisions to the courts, which often overturned them.
The Court similarly constricted the authority of the new federal Interstate Commerce Commission. In a series of decisions in the 1890s it denied that the law creating the commission had empowered it to set rates; the Court also limited the ICC's investigative powers. The Court ruled that Congress could not establish an income tax in Pollock v. Farmers' Loan & Trust Co. (1895). The opinion concentrated on technicalities of constitutional languages, but the underlying concern was that the tax applied only to those who made more than a certain income, once more raising the specter of class legislation. With these decisions, the Court accepted the argument that various provisions of the Constitution incorporated the moral and economic principle of laissez faire and that government could not interfere with the free market's distribution of economic wealth and power. The decision in the E. C. Knight Case, limiting the government's power to fight trusts, confirmed the perception. Meanwhile, the Court sustained the power of government to intervene to break strikes that affected interstate commerce or mail delivery. Although the justices had limited the scope of the Sherman Antitrust Act's application to business, it sustained its application to labor unions (see Antitrust).
The Court also began to scrutinize state police regulations more closely for signs that they infringed on property rights. In Allgeyer v. Louisiana (1897), the Court declared that the individual's liberty to make contracts was one of the liberties that government could not infringe without due process of law. This placed at risk any regulations that limited the outcomes of free negotiations to set prices, wages, work conditions, or any other economic relationship. In the classic case of Lochner v. New York (1905), a divided Court applied this principle of “liberty of contract” to overturn a law limiting the working day of bakers to ten hours. Such an interference with freedom of contract was constitutional only if the Court could be convinced that such a law served some general community interest in health, safety, or morals. Otherwise the substance of the law, no matter how fairly enforced, violated due process of law—a notion legal scholars call “substantive due process.” In 1908 the Court in Adair v. United States ruled unconstitutional a federal law that barred interstate transportation companies from requiring workers to promise not to join unions as a condition of employment.
These cases were signals for a wholesale assault on regulations of the workplace in the state and federal courts. For a law to pass muster as a constitutional police regulation, courts had to be satisfied that it served their constricted view of the general welfare rather than the economic interest of some favored group. The courts, state and national, had become committed to “laissez‐faire constitutionalism”—reading the Due Process Clause, the Contracts Clause, the tax clauses, and other parts of the Constitution to incorporate laissez‐faire principles.
Progressivism
The Courts came under bitter attack for their narrow view of what legislation served the general welfare. Social reformers, farmer and labor groups, economists, and large numbers of academics and intellectuals insisted that the complexities of the modern industrial state necessitated wide‐ranging government activity that did, in fact, serve the general welfare. They called for a “general‐welfare state” rather than a “laissez‐faire state.” The decision of what was in the general interest should be left to democratic decision in the state legislatures and Congress, they insisted. Courts should exercise judicial self‐restraint and rule unconstitutional only those laws that unambiguously and without doubt violated the words of the Constitution. They should make themselves aware of the practical, social purpose of law and decide cases in light of those purposes, rather than engage in formalistic legal reasoning that ignored the real world. Oliver Wendell Holmes became the spokesman for such views on the Supreme Court, filing a celebrated, trenchant dissent in Lochner v. New York.
In the first decades of the twentieth century, the so‐called Progressive era, these ideas swept the nation. State legislatures and Congress passed wide‐ranging regulations to protect consumers from dangerous products, to combat vice, to control business practices, to improve working conditions, and to render more equal the economic power of business, labor, and consumers (see Progressivism).
Many Progressives proposed action to limit the power of state and federal judges, but judges, too, came to see that Progressive legislation served the general welfare and generally sustained them against constitutional challenges. The Supreme Court ratified the expanded jurisdiction of the federal government, unequivocally recognizing a national police power in Champion v. Ames and McCray v. United States (1904). The national power to regulate interstate commerce and to levy taxes, the justices held, was plenary and absolute. It could be used to serve the health and safety of the community—by regulating what passed through interstate commerce or banning transportation of undesirable goods entirely, or by levying prohibitively high taxes to suppress undesirable products. That such laws had the character of police regulations, traditionally within state jurisdiction, did not affect their constitutionality as regulations of interstate commerce. Thus the Court seemed to abandon the key tenet of dual federalism. In response, the federal government passed numerous interstate commerce regulations designed for other general‐welfare purposes.
Likewise, the Court abandoned its cramped interpretation of the Sherman Antitrust Act. It allowed federal health and safety regulation of local businesses at the source or terminus of what it now saw as a stream of commerce, and it sustained government regulations governing almost every aspect of employment in interstate transportation companies.
Prodded by legal briefs that included sociological data, first submitted by Louis D. Brandeis in Muller v. Oregon (1908), the justices expanded their understanding of what legislation might serve the general welfare (see Brandeis Brief). In that case, the Court sustained legislation setting maximum hours women might work in public laundries, accepting the principle that the general welfare was served when legislation took into account the special circumstances of dangerous or unhealthy occupations and vulnerable workers, such as women and children (see Gender). The Court also sustained workmen's compensation laws, which required employers to contribute to a fund to protect workers against the economic consequences of accidents. In general the Court accepted a broad range of laws that interfered with “liberty of contract.”
The Court's progressivism culminated in decisions sustaining pervasive economic controls imposed by Congress during World War I. National defense was so clearly related to the public welfare that the Court sustained price and rent controls and other rigorous wartime regulations of the American economy (see also War).
As most Americans endorsed a return to “normalcy” after war's end, however, the Supreme Court also retreated from Progressivism. In the child‐labor cases of Hammer v. Dagenhart (1918) and *Bailey v. Drexel Furniture Company (1922), the Court revived dual‐federalist limitations on the national interstate commerce and taxing powers, holding that neither could be used to suppress child labor. Regulation of employment of companies not engaged in transportation was within state, not federal, jurisdiction. Then, in Adkins v. Children's Hospital (1923), the Court ruled that a minimum wage for women interfered with liberty of contract in a way that could not be justified as serving the general welfare. The Court seemed to have revived dual federalism and laissez‐faire constitutionalism. The resulting confusion would not be resolved until the constitutional crisis precipitated when the Court applied these principles to the New Deal.
Bibliography
- Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court,
Supreme Court Review (1978): 39–79. - 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. - Loren P. Beth,
The Development of the American Constitution, 1877–1917 (1971). - Charles Fairman,
History of the Supreme Court of the United States , vols. 6–7,Reconstruction and Reunion, 1864–88 (1971, 1987). - Robert J. Kaczorowski,
The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876 (1985). - Stanley I. Kutler,
Judicial Power and Reconstruction Politics (1968). - John J. Semonche,
Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 (1978). - William F. Swindler,
Court and Constitution in the Twentieth Century: The Old Legality, 1889–1932 (1969)
— Michael Les Benedict
