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The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888–1921

Published online by Cambridge University Press:  28 October 2011

Aviam Soifer
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Extract

In 1898, the year Americans first sailed forth to fight in other countries to protect purported victims of imperialism, A. V. Dicey steamed into Harvard University to deliver his lectures on Law and Public Opinion in England. Like William Blackstone, Vinerian Professor before him, Dicey deployed a number of memorable epigrams to capture what seemed basic truths of his day. Dicey's assertion that ‘protection invariably involves disability’ appeared to state the obvious to Americans at the turn of the century.

In this essay I will consider how the United States Supreme Court embraced Dicey's epigram and translated it into decisions during the tenures of Chief Justices Fuller and White about the capacity of the individual in the United States to contract and care for himself.

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Articles
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Law and History Review , Volume 5 , Issue 1 , Spring 1987 , pp. 249 - 279
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Copyright © the American Society for Legal History, Inc. 1987

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References

1. Dicey, A. V., Lectures on Law and Public Opinion in England During the Nineteenth Century (London, 1905) 150Google Scholar n.1. Dicey thought this point ‘elementary’ but ‘worth insisting upon’. My friend Carol Weisbrod of the University of Connecticut School of Law first alerted me to this passage. The nexus between law, public opinion and the relative protection of the flag and the Constitution as they travelled the globe was obvious to Finley Peter Dunne. Indeed, his most famous saying was, ‘No matter whether th’ constitution follows the' flag or not, th' Supreme Court follows th' iliction returns’. Dunne, Finley Peter, ‘The Supreme Court Decisions’ in Ellis, Elmer, ed., Mr. Dooley at His Best (Hamden, 1938) 77Google Scholar. But long after San Juan Hill and Manila Bay, the vexing issue of how much protection the flag, the Constitution, or some combination thereof should provide individuals and corporations overseas still confused United States Supreme Court Justices as well as the rest of the population. I hasten to reassure that this subject is not one I wish to explore here.

For recent work considering Blackstone's great influence in the United States, see, e.g., Ferguson, Robert A., Law and Letters in American Culture (Cambridge, 1985) 15Google Scholar (‘the Commentaries rank second only to the Bible as a literary and intellectual influence on the history of American institutions’); Newmyer, R. Kent, Supreme Court Justice Joseph Story (Chapel Hill, 1985) 40–43Google Scholar, 243–46; Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven, 1975) 16Google Scholar; Nolan, Dennis R., ‘Sir William Blackstone and The New American Republic: A Study of Intellectual Impact’, 51 New York University Law Review 731 (1976)Google Scholar. For general consideration of A.V. Dicey, see Cosgrove, Richard A., The Rule of Law: Albert Venn Dicey, Victorian Jurist (London, 1980)CrossRefGoogle Scholar and a provocative review, Sugarman, David, ‘The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science’, 46 Modern Law Review 102 (1983)Google Scholar.

2. Lochner v. New York, 198 U.S. 45 (1905).

3. See, e.g., Ely, John Hart, ‘The Wages of Crying Wolf: A Comment on Roe v. Wade’, 82 Yale Law Journal 920, 944 (1973)CrossRefGoogle ScholarPubMed (Ely actually uses ‘Lochnering’, but I find ‘Lochnerizing’ more felicitous).

4. The best-known exception prior to Lochner was Holden v. Hardy, 169 U.S. 366 (1898), which allowed Utah to limit to ten hours the maximum miners could work per day, for reasons of health and safety. Less well known are several other decisions in which the Court announced, for example, that ‘[i]t is within the undoubted power [of Congress] to restrain some individuals from some contracts’. The author of this statement was none other than Justice David Brewer, writing for a unanimous Court in Frisbie v. United States, 157 U.S. 160, 165 (1895). That decision upheld a criminal conviction imposed on a lawyer for charging more than the statutory maximum allowed for processing a widow's pension under the Dependent Pension Act of 1890. See also Holmes's statement in Minnesota Iron Co. v. Kline, 199 U.S. 593, 598 (1905) (‘There is no doubt that [freedom of contract] may be limited where there are visible reasons for public policy for the limitation.’); Cantwell v. Missouri, 199 U.S. 602 (1905). Decisions also permitted states to forbid or severely restrict access to cigarettes, liquor and oleomargarine, see, e.g. Austin v. Tennessee, 179 U.S. 343 (1900); James Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311 (1917); Powell v. Pennsylvania, 127 U.S. 678 (1888). Muller v. Oregon, 208 U.S. 412 (1908) and Bunting v. Oregon, 243 U.S. 426 (1917) are additional well-known exceptions to the traditional understanding of the Lochner doctrine; these decisions allowed states to act with explicit paternalism toward women. See generally Currie, David P., ‘The Constitution in the Supreme Court: The Protection of Economic Interests, 1889–1910’, 52 University of Chicago Law Review 324 (1985)CrossRefGoogle Scholar.

5. Laissez-faire itself is, of course, not a concept that is easily defined. See Robbins, Lionel, The Theory of Economic Policy in English Classical Political Economy (London, 1952)Google Scholar; Woodard, Calvin, ‘Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State’, 72 Yale Law Journal 286 (1962)CrossRefGoogle Scholar. As with ‘Social Darwinism’ and ‘formalism’, whose heyday laissez-faire is often thought to have shared, much of the definition must rely on context. See generally Atiyah, P.S., The Rise and Fall of Freedom of Contract (Oxford, 1979)Google Scholar.

6. Gilmore, Grant, The Ages of American Law (New Haven, 1977) 60Google Scholar.

7. A generation ago, Robert McCloskey suggested that during this era ‘[t]he major value of the Court… was the protection of the business community against government’. McCloskey, RobettThe American Supreme Court (Chicago, 1960) 105Google Scholar. Among the best of additional earlier sources for this view, see Fine, Sidney, Laissez-Faire and the General-Welfare State (Ann Arbor, 1956)Google Scholar; Jacobs, Clyde E., Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon upon American Constitutional Law (Berkeley, 1954)Google Scholar; McCloskey, Robert, American Conservatism in the Age of Enterprise (Cambridge, 1951)CrossRefGoogle Scholar; Hofstadter, Richard, Social Darwinism in American Thought (Philadelphia, 1944)Google Scholar; Twiss, Benjamin R., Lawyers and the Constitution: How Laissez-Faire came to the Supreme Court (Princeton, 1942)Google Scholar [hereinafter cited as Twiss, Lawyers and the Constitution]; Corwin, Edward S., The Twilight of the Supreme Court (New Haven, 1934)Google Scholar; Josephson, Matthew, The Robber Barons (New York, 1934)Google Scholar; Lerner, Max. ‘The Supreme Court and American Capitalism’, 42 Yale Law Journal 668 (1933)CrossRefGoogle Scholar.

McCloskey's observation still seems generally accurate today, even if we recall what Charles Beard used to tell his students: the historian's ‘best equipment’ is to remember that ‘the very opposite of accepted faith may be true’ (quoted in Nore, Ellen, ‘Charles A. Beard's Act of Faith: Context and Contest’, Journal of American History 66 (1980) 850)CrossRefGoogle Scholar.

Standouts within the recent work refining or redefining our understanding of the legal history of the period are McCurdy, Charles W., ‘Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897’, Journal of American History 61 (1975) 970CrossRefGoogle Scholar; Benedict, Michael Les, ‘Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism’, Law and History Review 3 (1985) 293CrossRefGoogle Scholar; Semonche, John E., Charting The Future: The Supreme Court Responds to a Changing Society (Westport, 1978)Google Scholar. For an overview of the era, see Bickel, Alexander M. and Schmidt, Benno C. Jr., History of the Supreme Court of the United States: The Judiciary and Responsible Government (New York, 1984)Google Scholar.

There is a generational pattern, of course, to today's revisions of revisionists; now scholars search for order in the period roughly from 1880 to 1920 and some profess little faith that we would know a Progressive or a robber baron if we saw one. (For a helpful historiographic overview, see Rodgers, Daniel T., ‘In Search of Progressivism’, Reviews in American History 10(1982) 113CrossRefGoogle Scholar. See also Robert H. Wiebe, The Search for Order, 1877–1920 (1967).)

Of course, Willard Hurst and his oeuvre blazed the legal history trail for these and many other issues. Though this paper certainly does not show it adequately, particularly since it concentrates on doctrinal developments in Supreme Court decisions, I am personally very much in Willard's and Frances's debt. In addition to many other kindnesses, they allowed my family and me to use their home—and Willard's office— during the University of Wisconsin Legal History Workshop in the summer of 1982 while I worked on this paper.

8. Hollinger, David A., ‘Comments on Papers by Sharlin and Wall’ in ‘Symposium on Spencer, Scientism and American Constitutional Law’, Annals of Science 33 (1976) 476CrossRefGoogle Scholar.

9. The recent debate about terminology, in particular about Social Darwinism and the influence of Herbert Spencer, is largely the result of revisionist attacks on Richard Hofstadter, Social Darwinism in American Thought, supra note 7. Examples of that attack include Wall, Joseph Frazier, Andrew Carnegie (New York, 1970)Google Scholar; Bannister, Robert C., Social Darwinism: Science and Myth in Anglo-American Social Thought (Philadelphia, 1979)Google Scholar and the Symposium on Spencer, supra note 8. As this essay makes clear, I am not fully persuaded by arguments such as that by Wall about what conclusions properly may be drawn from the paucity of explicit citations to Spencer, ibid., particularly when anti-paternalism could carry much of the Social Darwinist load, as it did, for example, in the brief for appellants in Lochner v. New York, 198 U.S. 45 (1905), quoted by Wall at 471. For a good compendium with useful introductory essays, see Wilson, R. Jackson, ed., Darwinism and the American Intellectual (Homewood, 1967)Google Scholar.

10. Quoted in an excellent book, Wilson, R. Jackson, In Quest of Community: Social Philosophy in the United States, 1860–1920 (New York, 1968) 56Google Scholar. For similar ideas about the thought of Holmes and Langdell, see Gordon, Robert W., ‘Holmes’ Common Law as Legal and Social Science’, 10 Hofstra Law Review 719, 722–23 (1982)Google Scholar (tendency of the age ‘to treat the world as a hard object gradually being discovered by means of the suppression of human subjectivity’); Grey, Thomas C., ‘Langdell's Orthodoxy’, 45 University of Pittsburgh Law Review 1 (1983Google Scholar) (impact of analogy to geometry).

For fine examples of the outpouring of important recent work on the period and its dominant motifs, see Thomas, John L., Alternative America: Henry George, Edward Bellamy, Henry Demarest Lloyd and the Adversary Tradition (Cambridge, 1983)Google Scholar; Crunden, Robert M., Ministers of Reform: The Progressives' Achievement in American Civilization 1889–1920 (New York, 1982)Google Scholar; Miller, Stuart Creighton, ‘Benevolent Assimiliation’: The American Conquest of the Philippines, 1899–1903 (New Haven, 1982)Google Scholar; Whorton, James C., Crusaders for Fitness: The History of American Health Reformers (Princeton, 1982)CrossRefGoogle Scholar.

11. Gordon, Robert W., ‘Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920’, in Geison, Gerald L., ed., Professions and Professional Ideologies in America, 1730–1940 (Chapel Hill, 1983) 70–110Google Scholar; see generally Beth, Loren P., The Development of the American Constitution, 1877–1917 (New York, 1971)Google Scholar; McCraw, Thomas K., Prophets of Regulation (Cambridge, 1985)Google Scholar; Kennedy, Duncan, ‘Form and Substance in Private Law Adjudication’, 89 Harvard Law Review 1685 (1976)CrossRefGoogle Scholar.

12. Warren's articles reporting the results of his survey of 560 Supreme Court decisions from 1888–1911 bore such titles as ‘The Progressiveness of the United States Supreme Court’ and ‘A Bulwark to the State Police Power’, 13 Columbia Law Review 294 and 667 (1913)CrossRefGoogle Scholar. In his famous two-volume history of the Supreme Court, Warren, Charles, The Supreme Court in United States History (Boston, 1926) 742–44Google Scholar. Warren updated his survey to include such decisions as Adair and Coppage but he held firm to his conclusion. Warren's sampling technique is subject to some criticism—e.g., police power decisions were not the only source of restrictive constitutional holdings, as developments in doctrinal categories such as Contract Clause and Commerce Clause make clear—but his point is too often overlooked. It appears that Warren himself may have had a change of heart or head about the issues he surveyed. As a young man, Warren wrote a broadside condemning Massachusetts for granting pensions and for otherwise ‘taking public money for private uses under the guise of charity’. Warren, Charles, ‘Massachusetts as a Philanthropic Robber’, 12 Harvard Law Review 316, 318 (1898)CrossRefGoogle Scholar.

Lochnerizing did not really arrive until after World War I. For a handy scorecard of that doctrine's impact during the 1920s, see Frankfurter, Felix, Mr. Justice Holmes and the Supreme Court (Cambridge, 1938)Google Scholar.

13. William Jennings Bryan's attack on the federal judiciary during the tumultuous presidential campaign of 1896 and Theodore Roosevelt's vehement appeal for popular recall of state judicial decisions in the 1912 campaign do indicate that capable politicians believed their attacks on judicial decisions might create popular campaign issues. The fact that these presidential candidates lost does not prove popular support for their judicial targets; it is impossible to measure a national obsession with precision. See Stagner, Stephen, ‘The Recall of Judicial Decisions and the Due Process Debate’, 24 American Journal of Legal History 257 (1980)CrossRefGoogle Scholar. The same journal issue also contains interesting related articles, Walter F. Pratt, ‘Rhetorical Styles on the Fuller Court’, at 189 and Charles C. Goetsch, ‘The Future of Legal Formalism’, at 257.

14. The pathbreaking work is Genovese, Eugene D., Roll, Jordan, Roll (New York, 1974)Google Scholar and it is criticized in Oakes, James, The Ruling Race (New York, 1982)Google Scholar. See also, e.g., McFeely, William S., Yankee Stepfather (New Haven, 1968)Google Scholar, in which McFeely pursues the theme in the context of the Freedmen's Bureau; Belz, Herman, A New Birth of Freedom (Westport, 1976)Google Scholar and Belz, Herman, Reconstructing the Union (Ithaca, 1969)Google Scholar, considering the tension between paternalism and individualism in Congressional goals as the Civil War ended. See also Hermann, Janet Sharp, The Pursuit of a Dream (New York, 1981)Google Scholar, a fascinating chronicle of an Owenite experiment on a Mississippi plantation owned by Jefferson Davis's brother, who sold it after the Civil War to the former slaves who had worked the fields and cotton gins. For important recent considerations of paternalism moving beyond slavery and its immediate aftermath, see e.g., McPherson, James M., The Abolitionist Legacy (Princeton, 1975)Google Scholar; Montgomery, David, Beyond Equality (New York, 1967)Google Scholar. For a useful study of English varieties, see Roberts, David, Paternalism in Early Victorian England (New Brunswick, 1979)Google Scholar. Cf. Sennett, Richard, Authority (New York, 1980)Google Scholar.

15. J.M. Barrie's Peter Pan was first performed in London in 1904. The portrait of Wendy as housewife, who believes that ‘Father knows best’, is particularly striking. But that is another story.

16. King, Willard L., Melville W. Fuller, Chief Justice of the United States, 1888–1910 (New York, 1950) 120Google Scholar. Senator George F. Edmunds (R.-Vt.) led the opposition to Fuller from his base as chairman of the Senate Judiciary Committee; he was able to discover actions by Fuller during the Civil War that smacked of Copperhead sentiments. Nevertheless, Fuller was confirmed by a 41 to 20 vote. See generally ibid. at 114–24.

17. Ibid. at 114, quoting the Philadelphia Press. For a somewhat similar description of White, see Highsaw, Robert B., Edward Douglass White: Defender of the Conservative Faith (Baton Rouge, 1981)Google Scholar.

18. Willard L. King, Melville W. Fuller, supra note 16 at 90.

19. For example, The Nation in 1887 praised President Cleveland for his ‘firm and pronounced stand against paternalism in government’ in his refusal to allow federal drought and flood relief, and for his veto of what The Nation dubbed the ‘Pauper Pension bill’. The Nation 44 (March 10, 1887) 202Google Scholar. Cleveland had given the country the important lesson that ‘though the people support the government, the Government should not support the people’. Ibid. Cleveland repeatedly sounded the antipaternalism theme, as he did in his veto of the Texas Seed Bill on February 16, 1887, when he warned that federal aid to drought-stricken Texas farmers ‘encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which stregthen the bonds of common brotherhood’. Parker, George F., ed., The Writings and Speeches of Grover Cleveland (New York, 1892) 450Google Scholar. See generally Keller, Morton, Affairs of State (Cambridge, 1977)CrossRefGoogle Scholar; Williams, R. Hal, Years of Decision (New York, 1978)Google Scholar.

20. Compare, e.g., Blyew v. United States, 80 U.S. (13 Wall.) 581 (1872); United States v. Reese, 92 U.S. 214 (1876); United States v. Cruikshank, 92 U.S. 542 (1876); United States v. Harris, 106 U.S. 699 (1883) with Strauder v. West Virginia, 100 U.S. 303 (1879); Virginia v. Rives, 100 U.S. 313 (1879); Ex parte Virginia, 100 U.S. 339 (1879). The Court was somewhat more willing to allow government intervention in matters concerning the franchise. See, e.g., Ex parte Yarborough, 110 U.S. 651 (1884).

21. 109 U.S. 3, 25 (1883).

22. Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886) (dictum); Pembina Mining Co. v. Pennsylvania, 125 U.S. 181 (1888) (holding that corporation was a person for purposes of fourteenth amendment).

23. See, e.g., Missouri v. Lewis, 101 U.S. 22 (1879); Barbier v. Connolly, 113 U.S. 27 (1885). For a most useful treatment of the implications of this theme, see Kay, Richard S., ‘The Equal Protection Clause in the Supreme Court, 1873–1903’, 29 Buffalo Law Review 667 (1980)Google Scholar. Its ramifications in the realm of due process are somewhat better known. See generally C. Jacobs, Law Writers and the Courts, supra note 7.

24. Elk v. Williams, 112 U.S. 94 (1884).

25. See, e.g., Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875); Bradwell v. State, 83 U.S. (15 Wall.) 130 (1872).

26. Civil Rights Cases 109 U.S. 3, 24 (1883), in which the Supreme Court declared that ‘it would be running the slavery argument into the ground’ to hold that the thirteenth amendment guaranteed non-discriminatory practices in public theaters, hotels and the like.

27. See, e.g., Loren P. Beth, The Development of the American Constitution, supra note 11; Rothman, David J., Politics and Power (Cambridge, 1966)CrossRefGoogle Scholar; R. Hal Williams, Years of Decision, supra note 19; Morton Keller, Affairs of State, supra note 19.

28. Bryce, James, The American Commonwealth 3 vols. (London, 1889) ii: 408Google Scholar.

29. Ibid. at 409. Bryce supplied charts and summaries of ‘recent legislation tending to extol state intervention and the scope of the penal law’ to prove that Americans spoke one way and acted quite another concerning government intervention.

30. Ibid. at 410.

31. See generally Clyde E. Jacobs, Law Writers and the Courts, supra note 7; Pound, Roscoe, ‘Liberty of Contract’, 18 Yale Law Journal 454 (1909)CrossRefGoogle Scholar.

32. Field was ‘the doyen of conservatives on the postwar Court’, according to Morton Keller, Affairs of State supra note 19 at 366, but even Field has been ‘rehabilitated’ somewhat—if one favors government intervention—in Charles W. McCurdy, ‘Justice Field and the Jurisprudence of Government-Business Relations,’ supra note 7. Field's nephew, Justice Brewer, also has had recent defenders. See, e.g., John E. Semonche, Charting the Future, supra note 7 at 168–79, 244–45; Garner, Robert E., ‘Justice Brewer and Substantive Due Process: A Conservative Court Revisited’, 18 Vanderbilt Law Review 615 (1965)Google Scholar. Useful additional recent studies of the period include W. Nelson, The Roots of American Bureaucracy, 1830–1900 (1982); David P. Currie, ‘The Constitution in the Supreme Court: The Protection of Economic Interests, 1889–1910’, supra note 4; and Walter F. Pratt, ‘Rhetorical Styles in the Fuller Court’, supra note 13.

33. See, e.g., Hamilton, Walton H., ‘On Dating Mr. Justice Holmes’, 9 University of Chicago Law Review 1, 10, 15, 26–29 (1941)Google Scholar; Rogat, Yosal, ‘Mr. Justice Holmes: A Dissenting Opinion’, 15 Stanford Law Review 3, 254 (1962–1963)Google Scholar; Rogat, Yosal and O'Fallon, James M., ‘Mr. Justice Holmes: A Dissenting Opinion—The Speech Cases’, 36 Stanford Law Review 1349 (1984)CrossRefGoogle Scholar; Touster, Saul, ‘Holmes a Hundred Years Ago: The Common Law and Legal Theory’, 10 Hofstra Law Review 673 (1982)Google Scholar; Robert W. Gordon, ‘Holmes's Common Law as Legal and Social Science’, supra note 10; Grant Gilmore, The Ages of American Law, supra note 6 at 48–56. See also Belz, Herman, ‘The Constitution in the Gilded Age: The Beginnings of Constitutional Realism in American Scholarship’, 13 American Journal of Legal History 110 (1969)CrossRefGoogle Scholar.

34. 33 W. Va. 179 (1889).

35. Ibid. at 183.

36. For example, Eugene V. Debs constantly instructed workers that they actually were wage slaves, perhaps not as well off as slaves had been in the South. See, e.g., Brommel, Bernard J., Eugene V. Debs (Chicago, 1978) 49, 61–63Google Scholar, 80. Similarly, Upton Sinclair was commissioned to do a study of wage slavery in the meatpacking industry, resulting in The Jungle (1906). For similar concern about slavery, from a very different perspective, see generally Paul, Arnold M., Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887–1895 (Ithaca, 1960)Google Scholar. In this way, the rhetoric of the period was reminiscent of the tone of the American Revolution. See Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, 1967)Google Scholar.

37. State v. Goodwill, 33 W. Va. 179, 186 (1889). To illustrate ‘universal condemnation’, Snyder relied on Godcharles v. Wigeman, 113 Pa. 431 (1886) which found Pennsylvania's similar statute to be ‘utterly unconstitutional and void’ since it was ‘an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States’. Snyder also cited Millett v. Illinois, 117 Ill. 294 (1886), which invalidated legislation requiring owners to weigh coal fairly and pay miners accordingly. Snyder could have cited many other contemporary decisions. See generally Twiss, Lawyers and the Constitution, supra note 7.

38. Ibid. at 184.

39. Both statements by Justice Brewer were in his dissent in Budd v. New York, 143 U.S. 517, 551 (1892). Brewer also insisted that New York went too far in regulating prices at a grain elevator, because ‘[t]he utmost possible liberty to the individual and the fullest protection to him and his property is both the limitation and duty of government’. Ibid. at 551. Rufus Peckham, who was soon to join the U.S. Supreme Court, had much the same thing to say for the New York Court of Appeals in the Budd case.

40. See, e.g., the speeches by Field, Brewer and Brown discussed in Arnold M. Paul, Conservative Crisis and the Rule of Law, supra note 38 at 63–64, 70–72, 84–85. See also John Chipman Gray's attack on paternalism and socialism, which Gray saw exemplified in the spendthrift trust, discussed in Alexander, Gregory S., ‘The Dead Hand and the Law of Trusts in the Nineteenth Century’, 37 Stanford Law Review 1189, 1244–47 (1985)CrossRefGoogle Scholar.

41. Charles Warren found overwhelming evidence that Lochner was atypical. Warren, Charles, ‘The Progressiveness of the United States Supreme Court’, 13 Columbia Law Review 294, 295 (1913)Google Scholar. See supra note 12. For a very different view, see Pound, Roscoe, ‘Law in Books and Law in Action’, 44 American Law Review 12 (1910)Google Scholar.

42. This idea of status created by contract evokes feudalism and rather starkly reverses Sir Henry Maine's famous aphorism. Maine, Henry Sumner, Ancient Law (London, 5th ed. 1873) 165Google Scholar.

43. In re Morrissey, 137 U.S. 157, 199 (1890). William Howard Taft signed the briefs as U.S. Solicitor General.

44. In re Grimley, 137 U.S. 147 (1890).

45. Ibid. at 150.

46. Ibid. at 151.

47. Ibid. at 153.

48. Congress first acted to exclude the Chinese in 1882. Its power to do so was upheld in Chae Chan Ping v. United States, 130 U.S. 581 (1889). The Court afforded Congress unqualified discretion in upholding the Geary Act of May 5, 1892 in Fong Yue Ting v. United States, 149 U.S. 698 (1893). Brewer, Field and Fuller dissented and Brewer's dissent, while showing little sympathy for ‘the obnoxious Chinese’, is a good example of his penchant for arguing that questions of degree provided an impermissible basis for legislation. Ibid. at 742. But see United States v. Wong Kim Ark, 169 U.S. 649 (1898). See generally McClellan, Robert, The Heathen Chinese (Columbus, 1971)Google Scholar; McClain, Charles J. Jr., ‘The Chinese Struggle for Civil Rights in 19th-century America: The Unusual Case of Baldwin v. Franks’, Law and History Review 3 (1985) 349CrossRefGoogle Scholar.

49. In re Debs, 158 U.S. 564, 586, 582 (1895). The position ultimately vindicated in the Debs case, of course, was that of George Pullman, whose relations with his workers in his town of Pullman, Illinois may have made him the foremost paternalist of the day.

50. United States v. Gettysburg Electric Railway, 160 U.S. 688 (1896).

51. 156 U.S. 1 (1895). As constitutional law students still learn, the Court attempted to draw an impossible line between manufacturing and commerce, and thereby determined that Congress could not reach the Sugar Trust, though it controlled 98% of the nation's sugar.

52. United States v. Realty Co., 163 U.S. 427 (1896). For additional illustrations of judicial willingness to uphold broad national power, see, e.g., South Carolina v. United States, 199 U.S. 437 (1905) (upholding federal tax of state agent selling alcoholic beverages); McCray v. United States, 195 U.S. 27 (1904) (upholding statute prohibiting coloring oleomargarine to resemble butter).

53. 163 U.S. 537 (1896).

54. Ibid. at 542.

55. Ibid. at 544.

56. Ibid. quoting 59 Mass. (5 Cush.) 198, 209–10 (1849).

57. Ibid.

58. Ibid. (emphasis added). For a discussion of the Roberts case, see Levy, Leonard W., The Law of the Commonwealth and Chief Justice Shaw (Cambridge, 1957) 109–17Google Scholar. The positive flavor of Shaw's reference to ‘paternal consideration and protection of the law’ had been transmuted over the ensuing half century. By 1896, paternalism was anathema. In private law, however, remnants of the old affirmative aspects of paternal consideration survived. A good and revealing example appears in a fairly typical summation of the Law of Persons by Brigadier General Norman L. Lieber, son of the first famous American jurisprudent, Lieber, Francis, in ‘The Supreme Court on the Military Status’, 31 American Law Review 342, 353 (1897)Google Scholar. Lieber wrote:

The status of a person is his legal position or condition. …The term is chiefly applied to persons under disability, or persons who have some peculiar condition which prevents the general law from applying to them in the same way as it does to ordinary persons. The question of status is of importance in jurisprudence, because it is generally treated as a basis for the classification of law, according as it applies to ordinary persons (general law, normal law, law of things), or to persons having a status, i.e., a disability or peculiar legal condition, such as infants, married women, lunatics, convicts, bankrupts, aliens, public officers, etc. (particular law, abnormal law, law of persons).

59. Woodward, C. Vann, ‘The Case of the Louisiana Traveler’, in Garraty, John A., ed., Quarrels That Have Shaped the Constitution (New York, 1975) 145, 155Google Scholar.

60. 165 U.S. 275 (1897).

61. The Shipping Commissioners' Act of 1872, 17 Stat. 243.

62. Robertson, 165 U.S. at 276 (1897).

63. Ibid. at 280.

64. Ibid. at 287. In the course of his historic essay, Brown drew from the ancient Rhodians through the Rules of Oleron promulgated during the reign of Henry III to French, German and Dutch law. What he omitted, however, was that the then-current law of England apparently would not have permitted the imprisonment at issue. Additionally, the American law from 1790 to 1872 also made no such provision. Finally, one of the essential preconditions in many of his examples—knowledge of the duration and destination of the voyage—was not present in Robertson v. Baldwin.

65. Ibid. at 287.

66. Brief for Appellee at 10, Robertson.

67. Ibid.

68. Robertson, 165 U.S. at 293 (1897).

69. Ibid. at 303.

70. By the end of 1898, Congress had adopted Harlan's views in the White Act, which eliminated all imprisonment for desertion, except for a one-month maximum for desertion in foreign ports not vigorously opposed by the sailors' unions, and regulated the seaman's diet and the contract allotment system with great specificity. 55th Congress, 3d Sess., 30 Stat. 755 (1898). See also Patterson v. Bark Eudora, 190 U.S. 169 (1903). I benefited a great deal from an excellent paper by Ronnie Sussmann about Robertson v. Baldwin and earlier cases involving sailors and their ‘care’ (unpublished manuscript, 1982).

71. This is the title of two articles Thayer wrote in Atlantic Monthly 540 and 676 (Oct., Nov. 1891). But see, e.g., Llewellyn, K.N. and Hoebel, E. Adamson, The Cheyenne Way, (Norman, 1941)Google Scholar; Talton v. Mayes, 163 U.S. 376 (1896); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

72. Ibid. at 678.

73. 118 U.S. 375, 383–84 (1886). In Kagama protection concerned federal jurisdiction over seven major crimes, when committed on Indian reservations.

74. Dawes is quoted in A. Debo, And Still the Waters Run 21–22 (1940). Upon returning from a visit to the Cherokee nation in 1886, Dawes noted that there was not a pauper in the nation and the nation owed no debts. They had schools and hospitals. ‘Yet the defect of the system was apparent… [T]here is no enterprise to make your home any better than that of your neighbors’.

75. Perhaps the most revealing decision concerning the Severalty Act was an opinion written by Justice Brewer, In re Heff, 197 U.S. 488 (1905). Brewer used the tenth amendment to hold that Congress could not regulate the sale of liquor to a former member of the Kickapoo tribe who was now an allottee. He stated that Congress ‘is under no constitutional obligation to perpetually continue the relationship of guardian and ward. It may at any time abandon its guardianship and leave the ward to assume and be subject to all the privileges and burdens of one sui juris. And it is for Congress to determine when and how that relationship of guardianship shall be abandoned’. Ibid. at 499. See generally Utley, Robert M., The Indian Frontier of the American West 1846–1890 (Albuquerque, 1984)Google Scholar; Barsh, Russel L. and Henderson, James Y., The Road: Indian Tribes and Political Liberty (Berkeley, 1980)Google Scholar; Washburn, Wilcomb E., Red Man's Land/White Man's Law (New York, 1970)Google Scholar; Littlefield, Daniel F., The Cherokee Freedman (Westport, 1978)Google Scholar. I benefited a great deal from an excellent paper by Despena Lee Fillios on Heff and related matters (unpublished manuscript, 1980).

76. 193 U.S. 115(1904).

77. Brief for Appellant at 88–99, Choctaw Nation v. U.S., 119 U.S. 1 (1886). The cases ranged from Russell v. Southard, 53 U.S. (12 How.) 139 (1851) to Graffam v. Burgess, 117 U.S. 180(1886).

78. Brief for Appellee at 4, Choctaw Nation v. U.S., 119 U.S. 1 (1886). See generally ibid. at 2–10 for astonishing statements about General Jackson's knowledge of and solicitude for the Indians, and the general theme that they were lucky not to have been massacred, so they should not complain. See also M. Rogin, Fathers & Children (1975).

79. Choctaw Nation v. U.S., 119 U.S. 1, 28 (1886).

80. Ibid. The Court held that a Senate award to Indians as compensation for land taken by the federal government was not conclusive, but would be given prima facie effect to establish the validity of Indian claims in the Court of Claims, authorized by an 1881 statute. This seems one of the rare occasions when even a credible claim could be made that a Great Spirit of any description sided with the Indians in court during the period.

81. U.S. v. The Choctaw Nation and The Chickasaw Nation, 193 U.S. 115, 124 (1904).

82. Ibid.

83. Ibid.

84. Civil Rights Cases, 109 U.S. 3, 20–21 (1883).

85. See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898); Brownfield v. S. Carolina, 189 U.S. 426 (1903) (Holmes's first opinion on the U.S. Supreme Court); Giles v. Harris, 189 U.S. 475 (1903), in which Holmes told the black plaintiffs complaining of disfranchisement that ‘relief from a great political wrong, if done… must be given by [the people of the State] or by the legislative and political department of the government of the United States’. Ibid. at 488.

86. For peonage, see, e.g., Daniel, Pete, The Shadow of Slavery (Urbana, 1972)Google Scholar; Novak, Daniel A., The Wheel of Servitude (Lexington, 1978)Google Scholar; Schmidt, Benno C., ‘Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases’, 82 Columbia Law Review 646 (1982)Google Scholar. For southern politics, see, e.g., Kousser, J. Morgan, The Shaping of Southern Politics, 1880–1910 (New Haven, 1974)Google Scholar; Hackney, Sheldon, Populism to Progressivism in Alabama (Princeton, 1969)Google Scholar; Woodward, C. Vann, The Strange Career of Jim Crow (New York, 2d rev. ed. 1966)Google Scholar.

87. 197 U.S. 207 (1905).

88. Ibid. at 215.

89. Ibid.

90. Ibid.

91. Ibid. at 233.

92. 203 U.S. 1 (1906).

93. Ibid. at 16. Brewer reasoned that since the thirteenth amendment reached all persons, and since Chinese laborers now had to carry certificates as free Negroes did during slavery, the thirteenth amendment could not affect wrongs to persons not shown in the record to be slaves or the descendants of slaves. State law was said to be the place to go to seek remedies.

94. Ibid. at 20.

95. Ibid.

96. Ibid. at 37. This time Harlan was joined in dissent by Day.

97. Ibid. at 27.

98. Ibid. at 29.

99. 219 U.S. 219 (1911).

100. 208 U.S. 412 (1908).

101. Ibid. at 421.

102. See, e.g., Lawlor v. Loewe (Danbury Hatters' Case), 208 U.S. 274 (1908); Adair v. United States, 208 U.S. 161 (1908); Employers' Liability Cases, 207 U.S. 463 (1908).

103. Bailey v. Alabama, 211 U.S. 452 (1908). Holmes, for the majority over dissents by Harlan and Day, rejected attempts to ‘take a short cut’ to get the case before the U.S. Supreme Court. Ibid. at 455.

104. Baker, Ray Stannard, ‘A Pawn in the Struggle for Freedom’, American Magazine 72 (1911) 608Google Scholar, 610. See also the article celebrating the victory in the New York Age, January 19, 1911, but also describing Bailey as a ‘cipher’ who was ‘last heard from slinging hash at the clubhouse, caring not which way the winds of the court blew, so they robbed him not of his good meals and freedom to break contracts whenever he listed’.

105. Bailey v. Alabama, 219 U.S. 219, 245 (1911).

106. Ibid. at 241.

107. Ibid.

108. Ibid. at 245.

109. Ibid. at 246.

110. Ibid. This example of Holmes expostulating about ‘wrong conduct’ is striking; it contrasts starkly with Holmes's position in The Common Law (1881) and with his characteristic enthusiasm for the utility of life's struggles. See, e.g., ‘The Soldier's Faith’ in Howe, Marx DeWolfe, ed., The Occasional Speeches of Justice Oliver Wendell Holmes (Cambridge, 1962) 73Google Scholar and sources cited supra notes 33 and 86.

111. Bailey v. Alabama, 219 U.S. at 248.

112. For a provocative discussion, see Benno C. Schmidt, ‘Principle and Prejudice’, supra note 86.

113. Bailey v. Alabama, 219 U.S. 219 (1911) at 245.

114. 235 U.S. 133 (1914).

115. See Benno C. Schmidt, ‘Principle and Prejudice’, supra note 86 at 691–702.

116. U.S. v. Reynolds, 235 U.S. at 146–47.

117. Ibid. at 150.

118. Ibid.

119. Coppage v. Kansas, 236 U.S. 1 (1915). As Brandeis put it in ‘The Living Law’, 10 Illinois Law Review 461 (1916)Google Scholar, ‘In the Coppage Case, the Supreme Court showed the potency of mental prepossessions’.

120. Butler v. Perry, 240 U.S. 328 (1916). Justice McReynolds emphasized the long tradition of mandatory road work. He explained the intention of the thirteenth amendment as follows: ‘The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers’. Ibid. at 333. Therefore, McReynolds explained for the unanimous Court, the thirteenth amendment certainly did not ‘interdict enforcement of those duties which individuals owe to the state, such as service in the army, militia, on the jury, etc.’. Ibid. The person objecting to mandatory road work was apparently white, but it had long been clear that thirteenth amendment protections were not limited by race. In fact, one of the test cases in Hodges involved a white convict; the Court also indicated that the Civil Rights Act of 1866, premised on the thirteenth amendment power of Congress, could reach a politically-motivated prosecution in a bitter battle among white citizens in Kentucky. Kentucky v. Powers, 201 U.S. 1 (1906).

121. Selective Service Cases, 245 U.S. 366 (1918). The Court found that the involuntary servitude challenge to the draft was ‘refuted by its mere statement’. Ibid. at 390.

122. Marcus Browning Holding Co. v. Feldman, 256 U.S. 170 (1921) (New York).

123. Ibid.; Block v. Hirsch, 256 U.S. 135 (1921) (Washington, D.C.).

124. See, e.g., Konefsky, Samuel J., The Legacy of Holmes and Brandeis (New York, 1956)Google Scholar; but see Letter from Oliver Wendell Holmes to Sir Frederick Pollock (May 16, 1919), reprinted in Holmes-Pollock Letters, 2 vols. (Howe, M., ed., Cambridge, 1941) ii: 13Google Scholar.

I hate facts. I always say the chief end of man is to form general propositions— adding that no general proposition is worth a damn. Of course a general proposition is simply a string for the facts and I have little doubt that it would be good for my immortal soul to plunge into them, good also for the performance of my duties, but I shrink from the base—or rather I hate to give up the chance to read this and that, that a gentleman should read before he dies.

See generally Walton H. Hamilton, ‘On Dating Mr. Justice Holmes’, supra note 33 at 24.

125. Block v. Hirsch, 256 U.S. 135, 161–63 (1921). The dissenters bemoaned the demise of the Constitution, ibid. at 160, 163, and proclaimed that fifth amendment prohibitions were being violated, though ‘t]hey are as absolute as axioms. A contract existing, its obligation is impregnable.’ Ibid. at 163–64. By 1924, even Holmes was convinced that the District of Columbia had gone too far in proclaiming that the World War I emergency still applied; Chasleton Corp. v. Sinclair, 264 U.S. 543 (1924). He wrote for the court invalidating this extension of the rent control scheme. By then, however, not only was Taft Chief Justice, but President Harding had remade the Court with three additional appointments. It was the Taft Court which produced what was then a record high batting average of invalidated statutes, as well as embracing and expanding precedents that were to be invoked to strike down New Deal legislation in the early 1930s. For surveys of the carnage, see Edward S. Corwin, The Twilight of the Supreme Court supra note 7; Felix Frankfurter, Mr. Justice Holmes, and the Supreme Court supra note 12.

126. 247 U.S. 251 (1918).

127. 261 U.S. 525 (1923).

128. Hammer, 247 U.S. at 273.

129. Ibid. at 275.

130. See generally Morton Keller, Affairs of State, supra note 19 at 461–72. Keller quotes Ernst Freund, for example, stating that parental authority came to be ‘power in trust… the authority to control the child is not the natural right of the parents; it emanates from the State, and is an exercise of police power’. Freund, Ernst, Police Power (Chicago, 1904) 248Google Scholar. But Robert Wiebe makes the point that ‘[i]f humanitarian progressivism had a central theme, it was the child’. Robert H. Wiebe, The Search for Order, supra note 7 at 169.

131. 247 U.S. 251, 278–80 (1918).

132. See, e.g., Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522 (1923); Wolff Packing Co. v. Industrial Court, 267 U.S. 552 (1925) and discussion in Felix Frankfurter, Mr. Justice Holmes and the Supreme Court supra note 12; Brown, Ray A., ‘Due Process of Law, Police Power and the Supreme Court’, 40 Harvard Law Review 943 (1927)CrossRefGoogle Scholar.

133. Adkins v. Children's Hospital, 261 U.S. 525, 553 (1923).

134. Ibid. at 569–70. Justice Taft's discomfort in his dissent, joined by Justice Sanford, ibid. at 562, is revealing. Taft clearly seemed to favor the result reached by the majority, but recognized that the precedents pointed the other way. He wrote, ‘I have always supposed that the Lochner Case was thus overruled sub silentio’ since the Court had begun ‘laboriously pricking out a line’ between the police power and liberty. Ibid. at 564, 562.

135. Compare Adkins with, e.g., MacKenzie v. Hare, 239 U.S. 299 (1915), in which the Court upheld a woman's loss of American citizenship when she married a foreigner. McKenna wrote for the Court: ‘The identity of husband and wife is an ancient principle of our jurisprudence. It was neither accidental nor arbitrary and worked in many instances for her protection’. Ibid. at 311. He continued: ‘There has been, it is true, much relaxation of it but in its retention as in its origin it is determined by their intimate relation and unity of interest, and this relation and unity may make it of public concern in many instances to merge their identity, and give dominance to the husband.’ Ibid. at 311. See also In re Lockwood, 154 U.S. 116 (1894); Bradwell v. State, 83 U.S. (16 Wall.) 130 (1872).

136. Adams, Brooks, The Theory of Social Revolutions (New York, 1913) 218Google Scholar.

137. Coppage v. Kansas, 236 U.S. 1, 27 (1915).

138. The usual first citation for the proposition is Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 662–63 (1875), but the statement was repeated constantly during the Fuller and White era. The same sentiment appeared in the reports of United States Supreme Court opinions at least as early as 1798 in Justice Chase's opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798).

139. McCormick, Richard L., ‘The Party Period and Public Policy: An Exploratory Hypothesis’, Journal of American History 66 (1979) 279CrossRefGoogle Scholar.

140. See, e.g., Scheiber, Henry N., ‘Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789–1910’, Journal of Economic History 33 (1973) 232CrossRefGoogle Scholar; Gates, Paul W., ‘An Overview of American Land Policy’, Agricultural History 50 (1976) 213Google Scholar; Horwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambridge 1977)Google Scholar; Handlin, Oscar and Handlin, Mary Flug, Commonwealth (New York, 1948)Google Scholar; Hartz, Louis, Economic Policy and Democratic Thought (Cambridge, 1948)CrossRefGoogle Scholar.

141. For example, the Democratic Party included anti-Court planks in its 1896 and 1900 platforms, and Theodore Roosevelt triggered a movement to recall or restrain the Justices in 1912. See supra note 13.

142. Hofstadter, Richard, The Age of Reform, (New York, 1955) 243–44Google Scholar.

143. Llewellyn, Karl N., ‘The Constitution as an Institution’, 34 Columbia Law Review 1, 14 n.28 (1934)Google Scholar.

144. This ‘happy phrase’ by James Russell Lowell is quoted in Charles Warren, The Supreme Court in United States History, supra note 12 at ii: 751.

145. Ely, John Hart, Democracy and Distrust (Cambridge, 1980) 112Google Scholar.