Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era

Melvin I. Urofsky


On January 3rd, 1916, Louis D. Brandeis, then one of the leading Progressive reformers in the country, addressed the Chicago Bar Association on the challenges confronting the legal profession, especially the waning respect among the populace for the law. He traced the problem to the failure of law to keep pace with rapidly changing social and economic conditions in the country "Political as well as economic and social science noted these revolutionary changes," he declared,

But legal science . . . was largely deaf and blind to them. Courts continued to ignore newly arisen social needs. They applied complacently 18th century conceptions of the liberty of the individual and of the sacredness of private property Early 19th century scientific half-truths like 'The survival of the fittest,' which translated into practice meant 'The devil take the hindmost,' were erected by judicial sanction into a moral law.[1]

Brandeis, who within a few weeks would be nominated to the Supreme Court of the United States, expressed a complaint common among reformers in the early twentieth century The industrial revolution had wrought radical changes in the economic, political, and social relations of the nation; the United States now had a large urban workforce, men and women jammed into unhealthy tenements and hovels, working in unsanitary and dangerous factories and mines for subsistence wages or less. The great increase in American productive wealth had come at an enormous cost in human misery Reformers correlated a number of problems to the growth of industry, and devised various remedies to protect workers, especially women and children, from the malignant effects of factory life. Protective legislation, including the establishment of maximum hours and minimum wages, the abolition of child labor, and the creation of workmen's compensation programs all aimed at redressing the perceived imbalance between the lords of industry and their ill-used workers.

These campaigns, begun in the closing years of the nineteenth century, had proven fairly successful in the state legislatures, but then, reformers claimed, a reactionary judiciary, led by the Supreme Court of the United States, struck down one law after another, relying on hide-bound interpretations of so-called freedom of contract and due process of law. Progressives as disparate in political ideology as Brandeis, Theodore Roosevelt and Gilbert Roe all attacked a legal system which, in their opinion, steadfastly refused to face up to the facts of modern life, and instead erected the judges' conservative economic prejudices as barriers to social reform. William F Willoughby, in his presidential address to the American Association for Labor Legislation, noted how so many people were "still dominated by the dogmas of laissez-faire and individualism as preached by the Manchesterian and utilitarian schools of the middle nineteenth century They are still influenced... by the doctrine that all resort to the state is to be deprecated.”[2]

The attack on courts as enemies of reform, as blind to social change, and as bastions of an outmoded economic orthodoxy received wide play during the Progressive years, and since then has worked its way into countless historical studies and monographs. There is no doubt that in some areas courts were conservative, and even reactionary Decisions such as Lochner v. New York, and its widely quoted dissent by Justice Holmes—"This case is decided upon an economic theory which a large part of the country does not entertain"—did little to establish a reputation for courts as friends of reform.[3]

Recently, however, a number of scholars have begun to re-examine this traditional view. Following the teachings of the "new legal history," they have begun to read more widely in the actual case literature, to see not just how the courts decided the "great" cases, but how they acted upon all the reform issues which came before the bench.[4] The results of these new investigations require a wholesale rethinking of the problems of judicial response to social reform, and the role of courts in changing environments. Certainly, insofar as the Supreme Court decided issues of protective legislation in the Progressive Era, one would have to conclude that far from being an enemy of reform, the Court was as progressive as most reformers could desire.


I

The litany of Progressive complaints derived from a basic assumption that industrialization had so altered traditional economic and social relationships as to endanger not only the health and welfare of laborers, but to undermine the moral and political bases of democracy To take but one example, reform investigators "discovered" that the huge increase in the number of women workers in factories correlated with a rise in prostitution, a decline in church-going, and a growing population dependant upon charity To the investigators, the reasons were clear. An 1884 Boston study, covering over a thousand working women, found that most factory owners required them to work more than sixty hours a week, and that commercial businesses often demanded eighty-hour weeks, including Sundays, with no extra pay A New York Labor Bureau study described in horrified terms the inadequate ventilation, filthy sanitary facilities, and dangerous conditions of New York sweatshops. As one immigrant woman sadly told Lincoln Steffens, her young daughters wanted to become prostitutes when they grew up, because the working conditions and pay were better than in the factories.[5]
A similar concern marked the crusade against child labor, and in fact tied in closely with the fight to improve working women's conditions. Women and children constituted the heart of the family, and the quality of America's next generation would be adversely affected by the deprivations visited upon those now employed for long hours, in dangerous working conditions, and lacking any opportunity for moral or intellectual growth. In explaining why it backed Progressive reforms, the National Conference of Charities declared that "all we have attempted is to keep the sub-basement floor which we regard as positively the lowest stratum that should be tolerated by a community interested in self-preservation."[6] While reformers certainly cared deeply about the underprivileged, they also feared the future effects of long hours, low wages, and stunted growth. The preamble to the Oregon minimum wage law explicitly declared: "The welfare of the State of Oregon requires that women and minors should be protected from conditions of labor which have a pernicious effect on their health and morals, and inadequate wages . . . have such a pernicious effect."[7]

The general legislative outline of the protective program emerged fairly early: minimum standards to reduce the incidence of child labor; maximum hours for women, children, and men employed in dangerous occupations; payment of labor in cash, to eliminate the abuse of the scrip system and company stores; the establishment of a minimum wage, first for women and children, and then for men; elimination of employers' common law defenses against liability for injury to their workers; and the creation of workmen's compensation plans to insure against the hazards of death and disability in the factory As Richard Hofstadter concluded, "it was expected that the [neutral] state, dealing out evenhanded justice, would meet the gravest complaints. Industrial society was to be humanized through the law."[8]

The reformers, operating primarily in the state legislatures, succeeded in securing much of this program, and in the first two decades of the twentieth century significantly transformed the environment of industrial workers.[9] How Progressives secured their victories, however, concerns us less than the opposition they faced within the legal community, and the question of how the courts responded to protective legislation. Common wisdom for many years set up the judiciary as a barrier to reform and, at least on the surface, evidence exists to support this view.

Following the Civil War, the American economy underwent not only a quantitative transformation but a qualitative one as well. What had been essentially a small-unit, agrarian economy changed with breath-taking speed into one dominated by large industries organized in investor-owned corporations. The new order generated a myriad of demands for additional resources, labor, legislative favors, and for a law system sensitive to its needs and protective of its interests.
Here again the standard wisdom has limned a familiar portrait. Skilled corporate attorneys (a genre which had not even existed before the Civil War) steered a compliant Supreme Court into erecting the Fourteenth Amendment's due process clause as a substantive barrier against public efforts to regulate industry Thomas M. Cooley and Christopher G. Tiedeman provided the intellectual scaffolding for the enterprise, upon which Justice Stephen J. Field applied the bricks and mortar of inviolate property rights, with the pinnacle reached in the Lochner decision.[10] The Court's power, declared Field, is "the safeguard which keeps the mighty fabric of government from rushing to destruction. This negative power is the only safety of a popular government."[11]

Cooley, whose Constitutional Limitations (1868) may have been the most cited legal treatise in American law, left no doubt that he relied on courts to protect the nation against the kind-hearted but ill-advised attempts by legislatures to meddle with the social and economic order. "It is a duty," he lectured, "which the courts, in a proper case, are not at liberty to decline." Tiedeman was even more explicit in his two-volume treatise on limitations of the police power, referring to "the power of constitutional limitation to protect private rights against the radical experimentation of social reformers." No law, he urged, should go beyond the ancient and revered maxim, sic utere tuo ut alienum non laedas.[12]
For a while it seemed as if bench and bar had but one goal, the protection of private property through court vetoes of adverse legislation. As one judge noted disprovingly: "There has in modern times arisen a sentiment favorable to paternalism in matters of legislation."[13] In one of the most celebrated cases of the day, In re Jacobs, Judge Robert Earl, speaking for a unanimous New York Court of Appeals, struck down a state statute attempting to prohibit cigar making in tenements. This law, declared Earl,

interferes with the profitable and free use of his property by the owner or lessee of a tenement-house who is a cigar-maker, and trammels him in the application of his industry and the disposition of his labor, and thus, in a strictly legitimate sense, it arbitrarily deprives him of his property and some portion of his personal liberty.[14]

Within the legal profession, a number of voices applauded this stand against the alleged depredations of King Mob. "There is an inner Republic formed by the Bench and Bar," happily proclaimed one lawyer, which, "as one of the moral and intellectual forces of the nation, has a clear and important duty to perform in matters of such great public concern [the defense of capitalism]." John F Dillon lectured the New York State Bar Association on "Property—Its Rights and Duties in Our Legal and Social System," while his colleague William Guthrie warned against "the despotism of the majority" We lawyers, he intoned, "are delegated . . . to teach the people in season and out to value and respect individual liberty and the rights of property"[15] In Wisconsin, Judge James G. Jenkins went so far as to prohibit workers not only from striking but even from quitting their jobs, since that would infringe upon the property rights of their employer![16] Nor was this all rhetoric; the courts handed down enough decisions like Jacobs and Lochner to give credence to charges that the bench had gone over completely to the service of big business in opposing humane reform legislation.

In the early years of this century one could scarcely pick up a popular periodical without seeing an attack on the courts. What could one expect, Justice Samuel Miller had earlier asked, of judges "who have been at the bar the advocates for forty years of railroad companies, and all the forms of associated capital, when they are called upon to decide cases where such interests are in contest?"[17] William Trickett, the dean of Dickinson Law School, was but one of many-voices arguing that courts had usurped the power of judicial review, and that the Founding Fathers. had never intended judges to have a veto over legislation. Horace Davis, Gilbert Roe, Robert LaFollette and even Theodore Roosevelt soon joined in this chorus.[18]

Within academia more objective yet no less fervent voices also attacked the courts' apparent antipathy to social reform. Professor William E Dodd of Princeton argued that the due process clause, as then interpreted, meant that judges could and did declare unconstitutional any law they didn't like, while remaining politically unaccountable, Ernst Freund, a highly respected law teacher at the University of Chicago, charged that judges were legislating, and the American governmental system suffered as a resuIt. Due process, declared E. S. Corwin, "comprises nothing more or less than a roving. commission to judges to sink whatever legislative craft may appear to them to be, from the standpoint of vested interests, of a piratical tendency."[19]

One of the best reasoned critiques came from a leader of the new school of sociological jurisprudence, Roscoe Pound. The Harvard law professor wrote in the wake of the highly controversial decisions of the Supreme Court in Lochner and Adair v. United States, which voided a federal law prohibiting "yellow dog" labor contracts.[20] Pound attacked the concept of liberty of contract in which courts ignored the realities of modern life and clung to the fiction that all men were equal in fact as in law:

Why do so many of them force upon legislation an academic theory of equality in the face of practical conditions of inequality? Why do we find a great and learned court in 1908 taking the long step into the past of dealing with the relation between employer and employee in railway transportation, as if the parties were individuals—as if they were farmers haggling over the sale of a horse? Why is the legal conception of the relation of employer and employee so at variance with the common knowledge of mankind?[21]

And, of course, one should not forget the most effective critic of formal jurisprudence, Oliver Wendell Holmes, Jr., whose dissents raised the spirits of the faithful and kept them hoping for a better day and a Court more attuned to contemporary realities.

The portrait of a judiciary out of touch with reality became enlarged in the writings of Progressive reformers and advocates of a sociological jurisprudence, and then embedded in the writings of later political and legal historians sympathetic to the Progressive cause. Yet, to repeat the question, how reactionary in fact were the courts? Were they bastions of reaction, or were they sympathetic, even supportive of reform legislation? Had judges usurped the legislative function, or did they do little more than prevent Congress and state governments from overstepping clearly defined bounds? Were the Adair and Lochner decisions the norms, or merely exceptions to the general trend?


II

It is well to remember that the nineteenth century marked the great period of common law development in the United States. Judges refined and in many instances created the laws of contracts, torts, domestic relations, suretyship, commercial instruments, and crimes against persons and property They did so in response to the needs of an expanding country, and to use Willard Hurst's famous phrase, released the energy necessary for Americans to tame a wilderness and harness its resources in an orderly manner. But, as Hurst reminds us, law typically operates after the fact. It responds to, rather than anticipates, new situations and new institutions. Throughout the nineteenth century judges had made the common law over in response to events which had already taken place; the courts legitimized that which had happened and gave their imprimatur to agencies which had proven their value, agencies of a new, industrialized America.[22]

Now society was shifting again, expressing its dissatisfaction with the dominant industrial model, and through state legislation, experimenting with means to rein in corporate strength in order to protect industrial workers. Even if all judges had been prescient, it is unlikely they would have rushed to approve a wide spectrum of innovative laws, many of which ran counter to long established common law principles, until the courts could develop measures by which to evaluate them. Fortunately for the reformers, the law did provide a rationale for this legislation under the police power.
All commentators recognized that as part of its sovereign powers, a state could override both individual and property rights to preserve public order and to maintain minimal standards for the health, safety, and welfare of the populace. Conservatives, of course even while conceding the existence of this authority, argued that the state could only interfere minimally with individual and property rights. Cooley for example, saw the power as necessary for any well-ordered society, but it remained very limited. The regulations, he declared, "must have reference to the comfort, safety, or welfare of society. . . and they must not, under pretence of regulation, take from the corporation any of the essential rights and privileges which the charter confers."[23] Progressives, on the other hand, saw the power as far more extensive, by which the authority of the state could be exercised on behalf of the oppressed. "The police power," said Holmes in a non-labor case, "may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality, or strong and preponderant opinion, to be greatly and immediately necessary to the public welfare."[24]

In the police power lay the key to constitutional approval or denial of protective legislation. In those state and federal courts which adopted a narrow view of the power, protective legislation had tough sledding; conversely, where judges took a more expansive view of how the state could further public welfare, reformers found a more sympathetic hearing. The Supreme Court, in the years following the Civil War, had numerous occasions to pass upon the limits of the police power, and in so doing, created the precedents by which to judge Progressive legislation. Moreover, as Taft's Attorney-General, George W. Wickersham, noted, the whole doctrine of police power had been created by the courts themselves in an effort to harmonize the needs of a dynamic society with the strictures of written constitutions and statutes.[25] Because this power was rarely, if ever, formally spelled out by legislatures or constitutional conventions, the police power at any time was essentially what the courts declared it to be.

Even so property conscious a jurist as Stephen Field recognized the great range of the power "to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the state, develop its resources and add to the wealth and prosperity."[26] Police power, said Mr. Justice McKenna, "is but another name for the power of government. Such sweeping definitions appeared regularly in the Court's decisions supporting a variety of prohibitions and regulations. "The State may interfere," Justice Brown declared, "wherever the public interests demand it." In one of the earliest and most notable police power cases, the Court made it clear that even the sanctity of contract and property rights, under proper circumstances, might be restricted for the public good, an idea which sent paroxysms of terror. through conservative ranks.[27]

There were, to be sure, limits on .the police power, although Tiedeman's comment, that the "unwritten law of this country is in the main against the exercise of police power," appears to be more wishful than reflective of reality.[28] The first Justice Harlan, in upholding a Kansas prohibition statute, noted that the courts had the obligation to ensure that measures enacted under the guise of a police regulation had a "real or substantial relation" to the goals of public health, morals or safety, and were not invidious invasions of fundamental rights.[29] Harlan did not, however, deny the generally broad scope of the power, and in a later case, while still maintaining a demonstrable link between statute and goal, expanded these goals to include "public convenience" and "general prosperity" as well as health, safety and morals. Moreover, the Court recognized that as society changed due to developments in industry, transportation and communications, the methods of achieving the police power goals would also have to change.[30]

Certainly Ernst Freund, the most noted authority on the police power during this time, found states constantly expanding their definitions of what constituted legitimate goals of government. Specific limitations upon police regulation existed primarily in the Bill of Rights, he concluded, so that "a vast field of legislative power is not within these restraints." While noting that practically every state regulation had been attacked as violating the due process clause of the Fourteenth Amendment, he pointed out that the Supreme Court had "taken on the whole the position that the judgment of the state legislatures as to the requirements of the public welfare will be taken as conclusive against the claim of liberty, property or equality."[31] Little wonder that one commentator believed a veritable revolution had been wrought, in which property rights and the so-called liberty of contract had been submerged to the "superior rights of the whole community."[32]

It was, in fact, as a police regulation that the Supreme Court heard its first state labor cases. In 1885 the Court approved a San Francisco ordinance prohibiting washing and ironing in public laundries between 10 P.M. and 6 A.M. The ordinance came under attack as interfering with liberty of contract, but the Court ignored this argument. It took the common sense approach that the danger of fire at night in a city with so many wooden buildings justified the rule as a matter of public safety The Court, speaking through Mr. Justice Field, did not even pause to judge the measure as a labor regulation.[33]

Prior to 1896, the Supreme Court passed on very few laws designed to protect labor because of limits on its jurisdiction.[34] Until the Judiciary Act revision of December 1914, no case could be appealed to the high court if the state court of last resort had held the act in question unconstitutional - One index of the increasing receptivity of state judges to protective legislation can be found in the growing number of appeals for review in Washington, reflecting the many statutes upheld at the state level, A Utah law, limiting working hours in mines and smelters, marked the beginning of the Supreme Court's review of protective legislation.


III

The struggle to reduce the number of working hours constituted one of the major reform efforts in the Progressive era, and was part of a longer campaign for shorter hours dating back to the early nineteenth century New York had enacted an hours law in 1853, establishing eight hours as a standard day for laborers on public works absent any contract calling for other terms. In 1874 Massachusetts moved to protect women and minors by limiting their work week to no more than 60 hours, and the state's highest court upheld the statute as a proper exercise of the police power. "This principle has been so frequently recognized," said the court, "that reference to the decisions is unnecessary."[35] The call for an eight hour day for all workers became a standard demand by organized labor, while reformers in particular worried about the effect long hours would have on children and women who were, as John B. Andrews noted, "the mothers of the coming generations." Despite growing sentiment favoring a shorter day, American workers in 1899 averaged over 57 hours a week on the job, and a decade later the figure had declined only 2.5 hours.[36] The problem, as most reformers saw it, can be gleaned in the testimony of one shop girl:

Its a sham the Way the store keepers make us Poor Girls work 14 and I 13 _ hours a Day, and then If a Person askes to get of an evening Why they scold and Wont let us off. I am a poor hard Working girl and I must Work for our Family Because I have no father and I am sick to On account of Working so Many hours a day. . . . I Wish you People have Pitty On us Poor girls and try to have the stores Closed. . . . I would like to sign my name But lam afraid that If my Boss would get to fine this Out He would fire me and I must Work.[37]

In the face of such conditions, it is little wonder that by 1918 forty-three states, Puerto Rico and the District of Columbia had statutes regulating hours.

Legally, reformers relied on the police power to justify these laws, but recognized that it would be impossible to secure their ultimate goal of an eight-hour day for all workers in one swoop. Ernst Freund urged them to build slowly; the idea of one day's rest in seven could be justified, and from there inroads could be made through applications of the police power to specific occupations.[38] Against them stood the implacable hostility of businessmen who opposed any efforts by the government to "interfere" in their business, and who relied on the sanctity of contract to thwart hours limitations. As one paper charged, the eight-hour movement was nothing but "humbuggery":

A wise laboring man will work just as long as he agrees to work for certain wages, specified between himself and his employer whether for one hour, or for twenty-four hours. No legislative body on earth can properly have anything to do with the subject. It is purely and exclusively a matter of contract between the individual wage-payer and the individual wage-worker.[39]

Thus the stage was set for first case testing a state regulation of hours.[40] The Utah law, which limited work in mines and smelters to eight hours a day, found its justification not only in the general police power, but in a unique clause in the state constitution requiring the legislature to "pass laws to provide for the health and safety of the employees in factories, smelters, and mines." Jeremiah Wilson, counsel for the mine owner Holden, argued that the statute was not a valid exercise of the police power, since it benefited only a portion of the community; that it abridged the privileges and immunities of Holden as a citizen of the United States; and that it violated the Fourteenth Amendment by depriving him of property without due process of law.

In a 7-2 decision, the Supreme Court emphatically rejected these arguments, and put forward a strong, liberal interpretation of how states might use the police power. Speaking through Justice Brown, the Court recognized that work in mines and smelters differed from ordinary employment, and an employee beneath the surface of the earth was "deprived of fresh air and sunlight and is subject to the foul atmosphere and a very high temperature, or to the influence of noxious gases." The fact that certain occupations could be reasonably deemed dangerous by the legislature, and that an appropriate remedy lay in restricting the hours men spent inside such conditions, justified the state's exercise of its power to protect workmen. But the Court went even further. In dismissing the argument that the state had restricted the right to contract, Brown noted that the employer and employee, while both of age and competent to contract, did not stand in a position of equality. When such disparity existed, the state could intervene if necessary to protect the welfare of the party with a significantly lesser bargaining power, This discretion resided in the legislature, and while the police power was not unlimited, within its rather broad constraints the courts would not second-guess the wisdom of elected representatives. [41]

Holden became the paradigmatic case for protective legislation, with its holding that special and/or dangerous conditions justified the intervention of the state.[42] The Court then seemed to expand the scope of state control in Alkin v. Kansas, confirming a state law establishing eight hours as a day's work on all public projects and for all private employers contracting to do state business, In response to counsel's argument that no dangerous work was involved and that the state had interfered with liberty of contract in an unwise policy, Justice Harlan said:

We have no occasion here to consider these questions, or to determine upon which side is the sounder reason; for whatever may have been the motives controlling the enactment of the statute in question, we can imagine no possible ground to dispute the power of the state to declare that no one undertaking work for it or for one of its municipal agencies should permit or require an employee on such work to labor in excess of eight hours a day. It cannot be deemed a part of liberty of any contract that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the state.... Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern.[43]

In both cases, Justices Rufus Peckham and David Brewer dissented without opinion, and were joined in Atkin by Chief Justice Melville Fuller. The dissenters had a majority, however, when the Court heard a challenge to a New York statute prescribing maximum hours for bakery workers. Lochner v. New York became the classic statement of substantive due process, and apparently spun the Court completely around from its previous views on the police power. Peckham, undoubtedly the most conservative member of the Court and a disciple of Stephen Field, posed the issue in terms of due process: "Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the rights of the individual?" The very phrasing of the question left no doubt that Peckham was looking not only at the limits of the police power, but at the policy decisions as well, Where in Ho/den and Atkin the Court had deferred to legislative judgment, it now appeared it would limit the power to those laws which judges and not legislators deemed wise and prudent. Lest anyone misunderstand him, Peckham explicitly declared that "the Court looks beyond the mere letter of the law in such cases" to determine the purpose of the statute. Here, said Peckham, "the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men, sui juris), in a private business, not dangerous in any degree to morals or in any real and substantive degree, to the health of the employees."[44]

Conservatives cheered Lochner while reformers were predictably aghast, and both sides leaped into print with defenses of and attacks upon the Court.[45] There has been an odium about the case ever since, representing, as it does, an abuse of judicial power at its worst, and it took the Court more than three decades before it finally buried the concept of substantive due process in economic legislation. But in terms of the Court's response to protective legislation in the Progressive era, Lochner should be seen as the exception rather than the rule. Peckham mustered a bare 5-4 majority, and elicited powerful dissents from Harlan and Holmes. Moreover, only a few months later the Court reaffirmed its ruling in Ho/den with a per curiam decision upholding a similar Missouri statute, and then extended Atkin by validating a federal eight-hour law for government laborers. Holmes, in the latter case, specifically abjured any power of the Court to speculate as to legislative motive.[46]

If Lochner has been overrated as a triumph of judicial conservatism, one must concede that Muller v. Oregon has been similarly blown out of proportion.[47] The brief Louis Brandeis prepared on behalf of the Oregon ten-hour law for women was unquestionably unique, and became the model of how lawyers could properly and effectively introduce sociological and economic evidence into a case. And no doubt Brewer's discovery of women's unique physical structure and maternal functions struck many then as now, as incredibly disingenuous. One should note, however, that Muller which pointedly ignored Lochner merely picked up the same thread spun earlier in Ho/den and Atkin. There are legitimate reasons for classifying female workers so as to require the protection of the state; therefore the exercise of the police power was legitimate and did not violate either due process or contract strictures.[48] Despite arguments by Felix Frankfurter and Josephine Goldmark,[49] among others, of the revolutionary reversal of the Court in Muller, it is only revolutionary if one looks at Peckham's Lochner opinion. If fits in perfectly with Ho/den and Atkin, and with the hours cases decided afterwards.

In 1911 the Court upheld a 1907 Act of Congress regulating hours of railroad employees on trains moving in interstate commerce, and reaffirmed the legitimacy of an 1892 eight-hour public works law.[50] When Massachusetts passed a comprehensive regulation of working hours for women in all types of employment, the Court unanimously sustained it, only a few weeks after it entered a per curiam judgment in favor of another Oregon women's hours law.[51] In 1915 Brandeis appeared as counsel in defense of two California statutes, one regulating hours for female hotel workers and the other a more general eight-hour law applying to nearly all female workers. In both cases, Justice Hughes delivered the unanimous opinion of the Court, dismissing the due process and freedom of contract arguments, and upholding the power of the state.[52] Although the Court split in approving the Adam-son Act, in which Congress prescribed an eight-hour day for railroad employees, it nonetheless endorsed the congressional power, and drew upon a long list of precedents to justify its decision,[53] The trend had become well-nigh irreversible, and in the few hours cases which came before the Court during the war years, the judges sustained the exercise of the police power in every one.[54]


IV

In fact, by the later cases the Courts had begun to move beyond the question of maximum hours regulation to the closely related issue of minimum wages. Reformers had long recognized that a reduction in hours without some adjustment of pay scale would work immense hardships on working men and women. Many of the eight-hour laws directly affected wages, for until the 1880s, most laborers were paid not by the hour but by the day Thus a worker earning one dollar for a day would earn more per hour if the workday was reduced from ten or twelve hours to eight. Justice McKenna, in his opinion in Bunting v. Oregon, recognized that the state's hours regulations affected the wages women would earn, but upheld the law since its primary purpose related to hours.[55]

While the modern minimum wage movement originated in Australia and New Zealand in the 1890s, both medieval England and colonial America had regulated wages, although in order to set maximum rather than minimum scales. While some nineteenth century visionaries such as Mathew Carey Edward Bellamy, and Frank Parsons argued for a floor under wages, as late as 1900 few reformers included the concept in their programs.[56] As Progressives began to explore more deeply the interrelationship of wages, hours and quality of life, they developed the theory of a living wage, the amount necessary for a person to live decently according to minimal middle class standards. In 1905, one estimate placed this figure at eight dollars a week, yet the Census of Manufactures of that year reported that of one million factory women sixteen years of age or over, 77.6 percent earned less than the minimum even during the busiest week of the year.[57]

Even more than in the dispute over hours, the question of state regulation of wages hinged on freedom of contract. Where the rationale of Holden and Muller reflected a common sense understanding that certain occupations were inherently dangerous or that a disadvantaged class needed some protection, a minimum wage meant that all workers had to be paid according to arbitrary fixed standards which bore no relation to the work involved and which, according to many critics, could not even be determined by objective cnteria.[58] For conservatives, such interference in the natural workings of the economy would only lead to total disruption of society Rome G. Brown, for example, fulminated against the minimum wage as "confusing," "economically unsound," "unenforceable," "paternalistic," and "infringing upon liberty of contract."[59] When reformers claimed that the prevailing "iron law of wages" ground "the marrow out of the bones, the virtue out of the souls, and the souls out of the body," conservatives responded that people earned what they deserved. "Any wages are fair," declared W. A. Croffert, "which are as high as that sort of work commands in the open market." One might as well say that a farmer "ought" to get more than the market price for his wool or potatoes! "Charity and business are and ought to be perpetually divorced."[60]

The first wage laws to come before the courts dealt not with minimal levels but with manner of payment. Many mines and factories paid their workers in scrip, redeemable only in company-owned stores which charged premium prices. When Pennsylvania attempted to outlaw scrip payment, the state's highest court struck down the statute, declaring it to be an infringement upon the right of both employer and employee:

More than this, it is 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. He may sell his labor for what he thinks best, whether money or goods, just as his employer may sell his iron or coal, and any and every law that proposes to prevent him from so doing is an infringement of his constitutional privilege and consequently vicious and void.[61]

Although Godcharles was frequently cited by conservatives as epitomizing what freedom of contract meant, most people recognized an inherent unfairness in a system where parties to a contract did not bargain from equal positions. Christopher Tiedeman, certainly no liberal, believed scrip and similar laws constitutional because they protected and enhanced the liberty of workers to bargain meaningfully.[62] The Supreme Court agreed. In 1899 it upheld an Arkansas statute requiring railroads to pay wages due an employee upon discharge - The right to contract is not absolute, the Court held, and private contracts had to conform to state law.[63] Two years later the Court confirmed the constitutionality of a Tennessee law requiring wages to be paid in cash or in orders directly redeemable in cash. The Court relied on Ho/den not in terms of impairment to health, but rather on the state's power to protect the wage earner from conditions imposed because of economic inequality Justice Shiras noted that "the legislature evidently deemed the laborer at some disadvantage. . . . and by this act undertook to ameliorate his conditions. . . . The passage of this act was a legitimate exercise of police power."[64]

In the next dozen years the Court sustained a variety of wage measures preventing employers from taking undue advantage of their workers in pay methods. It upheld an Arkansas "screening" law requiring mine owners to pay workers for the weight of coal before passing it over a screen - In 1914 it approved a regulation requiring semimonthly payments of railroad employees, as well as additional scrip and screening acts - It also sustained a federal law to protect seamen's wages.[65] In all these cases the Court found reasonable exercises of the police power as against the claims of freedom to contract.

But in all these cases, the state regulations merely attempted to preserve for the worker what he had already earned. They did not try to set wage rates, but only ensure that the worker received in cash what he and his employer had bargained for, In 1912 reformers began to go further, when Massachusetts enacted legislation requiring women to be paid wages sufficient for the "necessary cost of living and to maintain the workers in health." By 1915 nine additional states had enacted similar statutes, all requiring minimum wages for women and in some cases for minors as well.[66] Obviously Brewer's opinion in Muller led Progressives to believe that because women constituted a protected class, such laws would withstand judicial scrutiny, and they all did on the state level.

The first one to come before the Supreme Court was the Oregon statute of 1913, which set the scale according to the "necessary cost of living and to maintain the worker in health." Brandeis, who originally had been retained to argue the case by the National Consumers League, withdrew when Wilson named him to the Court. Felix Frankfurter took over as counsel, and prepared an elaborate Brandeis-style brief to prove the necessity of the legislation. No doubt Brandeis approved of the argument, but because of his previous connection with the case, recused himself. The Court then split 4-4, leaving the Oregon court decision in place. This did not, however, affirm the ruling, but left the entire issue of minimum wage regulation open until another case came along.[67] That opportunity did not arise until 1923, and by then the Court's composition had changed dramatically Before examining that case, and others which have led to a view of the Court as reactionary, let us turn to a different area in which protective legislation received judicial blessing.


V

The common law had developed various doctrines on the relation of master and servant which, while sensible and appropriate in a preindustrial society, reformers now claimed placed intolerable burdens on workingmen. Especially troublesome were three defenses which apparently immunized employers from any liability for job-related injuries to their employees, namely, the fellow-servant doctrine, contributory negligence, and assumption of risk. Short of gross negligence in limited areas, employers had practically no responsibility for what happened to those working for them.[68]

Under the fellow-servant doctrine, each worker stood responsible for the negligence of other employees resulting in his injury, on the theory that he should acquaint himself with the bad habits of his co-workers, and even encourage them to more prudent behavior, Perhaps this had made sense in small workshops, but it seemed far divorced from the realities of large mills or factories, where hundreds or even thousands of men labored on different shifts. A second prong of employer defence, contributory negligence, served to shift liability if any fault could be found in the conduct of the worker. In Arizona, for example, a railroad engineer had been forced to work thirty hours straight, in violation of a state law, and as a result had fallen asleep on the job, thus causing an accident in which he had been injured. The engineer had continued work only because of the threat of dismissal, but the court held him contributorily negligent. He had a free choice, the judges said, of cooperating or terminating his employment, and by choosing to cooperate became responsible for the results.[69]

Dangerous or even illegal conditions did not vitiate the defence. If a worker knew of these dangers and still accepted employment, the law held he had assumed any attendant risks. Volenti no fit injuria ran the ancient maxim, that to which a person assents is not an injury Chief Justice Lemuel Shaw of Massachusetts, in a case cited frequently both in England and America, explained:

He who engaged in the employment of another for the performance of specified duties and service for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjusted accordingly.[70]

In modern parlance, the two parties had, through the labor contract, bargained out the various risks, and the worker, in return for higher wages, had agreed to accept the risk for any injuries except those caused by the gross negligence of his employer. As Jeremy Bentham put it: "All these conditions are a matter of contract. It belongs to the parties to arrange them according to their own convenience."[71]

All three defences, it should be noted had been created by judges as part of the common law, and were therefore subject to statutory revision by legislation. As early as 1855, Georgia modified the fellow-servant rule, and by 1906 a sporadic but definite trend could be discerned, Seven states abolished the rule completely, and eighteen others had modified it significantly, especially as it applied to railroads. Nearly twenty states limited assumption of risk, while others restricted contributory negligence, often allowing recovery under a theory of "proportional negligence."[72]

Reformers thus sought to shift liability from employees to employers, and to change the basis for compensation from causal negligence to strict liability Because the worker in a modern industrial factory or mine had little or no control over the environment or the actions of fellow employees, the risk should be placed on the employer, who could more easily absorb the costs either through insurance or passing them on to consumers in the form of marginally higher prices. Some enlightened businessmen, especially those in the National Civic Federation, recognized the force of this argument, and also supported it as a means of rationalizing business costs. It would be far cheaper to set up an objective and predictable insurance scheme than to pay litigation fees for hundreds of personal injury suits. Other reformers spoke in terms of social costs. If breadwinners were injured or disabled, they and their families would be thrown upon the public expense. Since business profited by ignoring worker safety, ran the argument, industry and not the public should bear the costs.[73]

This shift from a liability based upon fault to strict liability upset many conservatives. According to Bernard Schwartz, the idea of liability as a corrollary of fault had been converted from a judge-made common law rule into a tenet of natural law, so that "immunity from liability when not in fault is a right inherent in free government." In fact, the development of a tort law based on moral appraisal of conduct had been hailed as a relatively recent trimph of civilization and reason over the earlier doctrine of acting at one's peril.[74] The leading English case of Rylands v. Fletcher,[75] with its espousal of strict liability, had made severe inroads in fault standards, much to the chagrin of many American commentators.

As states moved to shift liability to the employer, personal injury suits flooded state courts, and a number reached the Supreme Court on appeal. There is neither time nor space to explore the many decisions handed down by the Court, but the trend was unmistakable. As early as 1880 the Court held constitutional two statutes abolishing the fellow-servant rule as applied to railroads.[76] Justice Field found the 1874 Kansas statute did not violate the Fourteenth Amendment, since legislatures always had the discretion to change common law liability The fact that it appeared to be special legislation, affecting only certain groups, did not make it obnoxious; it was simply a case of legislative judgment.[77] Over the next two decades the Court sustained in principle nearly all such state laws, although plaintiff employees did not necessarily win all their suits. In many cases, technicalities or the failure to prove a claim led to dismissal, or to sending the matter back to lower courts for a rehearing. One student of the Court in these years noted that of twenty-eight negligence cases, twenty-one were decided in favor of labor, and of twenty-three state liability act cases, nineteen went for labor.[78] In some cases, the Court upheld the common law policies because the state had failed to take the necessary action to annul them, The fellow-servant rule, Holmes said, may be a "bad exception to a bad rule, but it is established, and it is not open to courts to do away with it upon their personal notions of what is expedient."[79]

Because some states acted more quickly than others to shift liability, and some moved not at all, reformers in Congress attempted to set a national example in an employers' liability law in 1906, only to have it struck down by the Court two years later.[80] Here again one must look past the anguished cry of Progressives to see just what the Court in fact did, Justice Edward Douglass White delivered the opinion of the Court, which held that Congress certainly had the power to modify or even abolish the common law in the regulation of interstate commerce, but that in this instance the law reached too far, affecting employees demonstrably not engaged in interstate activities. Justice William R. Day concurred separately, but without filing an opinion. Justice Rufus Peckham, the author of Lochner concurred in the result, but along with David Brewer and Chief Justice Fuller (his fellow dissenters in Atkin), argued that Congress lacked any power to alter relations between master and servant. William Moody agreed with White about the power of Congress to act, but differed in the result, believing the law valid, John Marshall Harlan, with whom Joseph McKenna joined, opposed the result as well as part of the reasoning, while Holmes believed that the act could have been read in such a way as to preserve its constitutionality Thus only three of the justices, the hard-core conservative bloc of Peckham, Brewer and Fuller, argued against any congressional power, while a clear majority of six indicated that if Congress cured the act of its overreach, it would meet Court approval.

This is essentially what Congress did in the Federal Employers' Liability Act of April 1908. The railroads, the direct object of the law, challenged it repeatedly in the federal courts in nearly six hundred cases over the next seven years,[81]but the Supreme Court upheld it unanimously Willis Van Devanter, a new appointee to the Court, delivered the opinion. Of the five who had voted against the earlier act, Peckham, Brewer, and Fuller had departed, while Day was ill and took no part. White, now Chief Justice, had no trouble supporting the law now that it had been more carefully drafted. Moreover, the Court took a fairly expansive view of the congressional power, noting that the act governed even in those cases where the causal negligence lay with an employee engaged in intrastate commerce, since that negligence affected employees in interstate operations.[82]

Shifting liability constituted but one prong of the Progressive program; the other would provide an orderly and rational scheme to compensate employees for injuries and death resulting from job-related accidents. Private employer liability insurance had been introduced in the United States in the 1880s, and premiums rose from about $200,000 in 1887 to more than $35,000,000 by 1912.[83] No one objected to private workmen's compensation programs, and many businesses voluntarily adopted plans in order to rationalize their expenses. Both International Harvester and the United States Steel Corporation established compensation programs in 1910. A year later the National Civil Federation proposed a model bill, and even the National Association of Manufacturers, which rarely agreed with the reformers, endorsed the principle of workmen's compensation at its 1911 convention.[84] But what if private companies did not secure insurance, in the belief that they could better bear litigation costs than individual workers? The benefits of shifting liability from employee to employer would be lost if the legal remedies proved too costly for workers, injured and out of a job and with few resources to pursue a lengthy court battle. The answer proposed by reformers appealed to many businessmen, but horrified conservatives.

Progressives called upon the states and the federal government to establish government-operated workmen's compensation insurance pools, and then require all employers either to subscribe to the public plan or secure comparable private coverage. In return, employers would be immune from liability for those accidents covered under the plan, although they would still, as under the common law, be subject to suit in cases of gross negligence on their part. By the end of 1910, six states had enacted some form of compulsory workmen's compensation, and the response of the state courts, in Ernst Freund's words, "could hardly be characterized otherwise than as one of confusion."[85]

In perhaps the most famous of these cases, the New York Court of Appeals struck down the 1909 state Workmen's Compensation Act.[86] The court, terming the law "plainly revolutionary," held that the liability involved a taking of property without due process of law. "When our Constitution was adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another." To alter that rule by imposing upon an employer "who has omitted no legal duty and has committed no wrong, a liability based solely on legislative fiat. . . is taking the property of A and giving it to B, and that cannot be done under our Constitution."[87]
Despite Ives and other decisions, an additional dozen states enacted legislation. In 1908 Congress provided that certain of its employees could receive compensation for injuries sustained on the job. Prior to that, a special act of Congress had been the only way a federal employee could recover.[88] In 1910, Congress authorized a commission to make a thorough study of employers' liability and workmen's compensation, After the commission recommended a federal plan in 1912, Senator George Sutherland, later to be villified as an enemy of labor, led the floor fight, finally winning approval in 1916.[89]

In 1917 several cases involving workmen's compensation reached the Supreme Court, and on March 6, three opinions came down upholding the three prevailing types of compensation laws. In a 5-4 decision, the Court sustained a Washington state plan requiring employer participation in an exclusive state fund.[90] It then unanimously upheld the Iowa elective statute. "The Fourteenth Amendment," declared Mahlon Pitney, "does not prevent a state from establishing a system of workmen's compensation without the consent of the employer, incidentally abolishing his [common law] defences.”[91] In the most extensive case, dealing with New York's compulsory law, Pitney literally dismissed plaintiff's traditional arguments against the program—property taken without due process, interference with liberty of contract, and restriction of employer and employee rights—as largely outdated. Brandeis, then a member of the Court, could have found no quarrel with Pitney's frequent allusions to the complexities of modern industrial life and the needs to mold law to fit reality Granted common law customs had been eliminated; that was a legislative prerogative, and the policy decision—also within legislative discretion—had been made for a legitimate use of the police power.[92] The reasoning of Ho/den v. Hardy, expanded and elaborated upon in dozens of succeeding cases, appeared to have swept aside all the old bugaboos, and Progressivism seemed to be as triumphant in the law as in politics.


VI

Why, then, the continuing myth of a reactionary Court, for if the above review of protective legislation is correct, then myth it must be. In areas of maximum hours and minimum wages, employer liability and workmen's compensation, and state child labor regulation,[93] the Court during the Progressive era nearly always supported reform efforts. The answer is part historical, part perceptual, and also reflects dramatic changes in Court personnel at the end of the Progressive era.
There is no doubt that during the latter nineteenth century bench and bar had proved extremely receptive to the needs of the business community Despite the expansive interpretation of state powers in Munn, most courts soon foreclosed that opening, and turned rate-making, for example, from simple administrative judgment into an ongoing constitutional debate over the taking of private property without due process, with the courts reserving the right to review not only the fairness of the rates but the wisdom of the policy Cases invalidating the income tax, or narrowly construing the scope of the interstate commerce power, arguably served the needs of industry far more than those of the public. Business then constituted the locus of national activity, and the law, reflective of the dominant mode of the community, served those interests. That courts occasionally went too far, that their decisions exceeded the scope of judicial responsibility, that their opinions skewed in favor of business as opposed to labor or the general public, legitimately upset those who objected to what they perceived as the negative effects of industrialization. We should understand that swings of the pendulum of social values affect the judicial system as much as other parts of the society, although here one often finds a time lag as courts react to events.

Because much of the popular press backed Progressivism, muckraking journalists exploited the alleged biases of judges and their pro-business decisions, yet failed to give equal space to the many decisions endorsing the protective efforts of reformers. Cases such as Lochner, an anachronism in its own day, drew many times the press comments (mostly negative) than did Ho/den or Atkin, which in the long term were far more important. Looking over the major periodicals, one would have thought that courts consistently voted judges' conservative prejudices against the poor working person.
I have not argued that the Court was reformist in all spheres, but rather, in this period and so far as protective legislation went, the Court supported most Progressive measures. There were, however, enough decisions of the Court opposed to reform demands to give some credence to the critical chorus. The federal income tax was declared unconstitutional; Lochner seemed but a piece with several cases, including Adair which went against labor unions; employer liability occasionally ran afoul of the Court. Then beginning in 1918, the Supreme Court seemingly reversed the whole trend of the preceding twenty years, and entered upon an extremely conservative period.

First it struck down the federal child labor law in Hammer v. Dagenhart, apparently abandoning an expansive view of the interstate commerce power reaching back to l824.[94] When Congress attempted to deal with the problem through the taxing power, the Court then held that the regulation of labor, an activity beyond the scope of federal power, could not be achieved through the subterfuge of a tax.[95] Conservatives made an attempt to reverse the trend in employer liability, and mustered four votes in cases which barely sustained an expanded state law.[96] The conservatives had their majority and evidently wrote finis to a generation of protective legislation in striking down a District of Columbia minimum wage law in l923.[97] By then, the high tide of prosperity had swept reform from the scene, and the nation's business leaders applauded the Court's return to common sense and sound constitutionalism.

The Court had indeed changed, and the decisions of the 1920s reflected in part the ascendence of a conservative bloc which would control the Court until 1937. William Howard Taft took over the center chair from Edward Douglass White in 1921, and provided leadership to a conservative majority which included Willis Van Devanter, James McReynolds, Pierce Butler, and George Sutherland; only Holmes and Brandeis held out for a liberal jurisprudence, and in 1925 were joined by Harlan Fiske Stone. Yet even here it is difficult to ascribe the shift just to personnel, although that undoubtedly played a major role. Joseph McKenna, for example, had been appointed in 1898 by McKinley; he voted againt the Arizona employers' liability law and against a minimum wage in Adkins, yet dissented along with Holmes, Brandeis, and Clarke in the first child labor case. Chief Justice Taft, the acknowledged conservative leader, nonetheless dissented, and vigorously, in Adkins. Both Holmes and Brandeis joined with the majority in the second child labor case,
One can, of course, eschew general theories in favor of particularized case analyses.[98] In the two child labor cases, for example, the majority of the Court did not object to efforts to stamp out an acknowledged evil; there had been an unanimous opinion upholding state laws. But it was there, in the states, where the Court believed regulation should take place, with state legislatures and not Congress having the responsibility These men took federalism seriously Similarly, while Congress had on occasion used the taxing power as a punitive or restrictive tool, the Court, with only one dissent, then regarded the tax as an impermissible instrument. In time the Court would change its mind on what federalism meant, and expand the limits of both the interstate commerce and taxing powers.

Even while analyzing specific cases, one can look for trends, and as I have tried to show, hostility to protective legislation was just not the norm in the Progressive era. Moreover, it would appear that cases in the twenty years following Ho/den derived directly from earlier decisions which expanded the police power. In some areas, such as the right of labor to organize and to bargain collectively, there was little case law to build upon, and it consequently took the Court longer to develop a positive doctrine, a process no doubt lengthened by the general anti-labor attitude of the 1920s. But however one wishes to examine the Court, one cannot escape the conclusion that the charges leveled by Brandeis and others of a court out of touch with reality and insensitive to industrial conditions do not bear up. That myth, at least, ought to be consigned to the dustbin of history.


Endnotes

1. Louis D. Brandeis, "The Living Law," 10 Ill. L. Rev. 461, 463-64 (1916).
2. William F. Willoughby, "Philosophy of Labor Legislation," 8 Am. Pol. Sci. Rev. 14, 16 (q1914).
3. Lochner v. New York, 198, U.S. 45, 75 (1905).
4. See, e.g., John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890-1920 (1978).
5. Jacob Liberman, "Their Sisters" Keepers: The Women's Hours and Wages Movement in the United States, 1890-1925," 16-17 (doctoral Diss., Columbia, 1971); Lincoln Steffens, Autobiography 245 (1931).
6. National Conference of Charities, Proceedings 378 (1912).
7. Alice Kessler-Harris, "Women, Work and Social Order," in B. A. Carroll, ed., Liberating Women's History: Theoretical and Critical Essays 338 (1976).
8. Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. 240 (1955).
9. For a review of this legislation, see Elizabeth Brandeis, "Labor Legislation," in John R. Commons et al., 3 Hist. of Lab. in the U.S. (1935).
10. See, among others, E. S. Corwin, Liberty Against Government (1948); Sidney Fine, Laissez-Faire and the General Welfare State (1956); Robert G. McCloskey, American Conservatism in the Age of Enterprise, 1865-1910 (1951); and Benjamin R. Twiss, Lawyers and the Constitution: How Laissez-Faire Came to the Supreme Court (1942).
11. Quoted in C. Peter Magrath, Morrison R. Waite: The Triumph of Character 209 (1963).
12. Thomas M. Cooley, Constitutional Limitations 160 (1868(; Christopher G. Tiedeman, 1 Treatise on State and Federal Control of Persons and Property in the United States 5 (1900 rev. ed.) For a useful re-evaluation of Cooley, which does much to save him from being the villain of Progressive historiography see Allen Jones, "Thomas M. Cooley and Laissez-Faire Constitutionalism': A Reconsideration," 53 J. Am. Hist. 751 (1967).
13. Low v. Reese Printing Co., 41 Neb. 127, 135 (1894).
14. In re Jacobs, 98 N.Y. 98, 105 (185).
15. A. Ellis, "Rise and Probable Decline of Private Corporations in America," 7 A.B.A. Rep. 256 (1884); M. I. Urofsky, A Mind of One Pierce: Brandeis and American Reform 23 (1971).
16. Farmer's Loan & Trust Co. v. N. Pac. R.R. Co., 60 F. 803 (E. D. Wis. 1894).
17. Charles Fairman, "Justice Samuel Miller," 50 Pol. Sci. Q. 15, 43 (1935).
18. William Trickett, "The Great Usurpation," 40 Am. L. Rev. 356 (1906); Gilbert Roe, Our Judicial Oligarchy (1912); Horace Davis, The Judicial Veto (1914). See, however, Charles A. Beard, "The Supreme Court: Usurper or Grantee?" 27 Pol. Sci. Q. 1 (1912) for an effort at a balanced view of the issue.
19. Jackson H. Ralston, Study and Report . . . Upon Judicial Control Over Legislation 3-4 (1919).
20. 208 U.S. 161 (1908).
21. Roscoe Pound, "Liberty of Contract," 18 Yale L. J. 454 (1909).
22. James Willard Hurst, Law and Social Order in the United States 38, 49 (1977).
23. Constitutional Limitations 577.
24. Noble State Bank v. Haskell, 219 U.S. 104, 111 (1911).
25. George W. Wickersham, "The Police Power: A Product of the Rule of Reason," 27 Harv. L. Rev. 297 (1914).
26. Barbier v. Connolly, 113 U.S. 27, 31 (1885). Field, however, saw the power lodged primarily in the states rather than in the federal government.
27. Mutual Loan Co. v. Martell, 222 U.S. 225, 233 (1911); Lawton v. Steele, 152 U.S. 133, 136 (1894); Munn v. Illinois, 94 U.S. 113 (1876).
28. Tiedeman, 1 State and Federal Control 13.
29. Mugler v. Kansas, 123 U.S. 623, 661 (1887).
30. Chicago, Burlington & Quincy Ry. Co. v. People ex rel. Drainage Comm'r, 200 U.S. 561, 592 (1906); see also C., B. & Q. Ry. Co. v. McGuire, 219 U.S. 549, 569 (1911), and Mountain Timber Co. v. Washington, 243 U.S. 219 (1913).
31. Ernst Freund, The Police Power: Public Policy and Constitutional Rights 13, 65-66 (1904).
32. A. H. Robbins, "Taking the Lid off the Policed Power," 75 Cent. L. J. 314 (1912).
33. Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v. Crowley, 113 U.S. 703 (1885).
34. The Court twenty years earlier had sustained an 1868 Federal law establishing eight hours as the standard day on government contract work, but had limited its application to little more than hortatory effect. United States v. Martin, 94 U.S. 400 (1876); United States v. Driscoll, 96 U.S. 421 (1877).
35. Elizabeth F. Baker, Protective Labor Legislation With Special Reference to Women in the State of New York 109 (1925); Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383, 384 (1876).
36. The official position of the American Federation of Labor can be found in George Gunton, The Economic and Social Importance of the Eight-Hour Day (1889); John B. Andrews, Labor Problems and Labor Legislation 46 (1932); Marion C. Cahill, Shorter Hours: A Study of the Movement Since the Civil War 286 (1932).
37. Quoted in Joseph L. Candela, Jr., "The Struggle to Limit the Hours and Raise the Wages of Working Women in Illinois, 1893-1917," 53 Social Service Rev. 15, 18 (1979).
38. Ernst, Freund, "Constitutional Aspects of Hour Legislation for Men," 4 Am. Labor Legis. Rev. 129 (1914).
39. Illinois State Reporter, 13 March 1880, quoted in Ernest L. Bogart and Charles H. Thompson, 4 Centennial History of Illinois 163 (1920).
40. Holden v. Hardy, 169 U.S. 366 (1898).
41. Id., 396, 398.
42. Most state courts followed this ruling in upholding similar statutes. State v. Cantwell, 179 Mo. 245 (1904); Ex parte Boyce, 27 Nev. 299 (1904). Only one state court struck down a comparable law in a tortured decision which took an excessively narrow interpretation of the statute. In re Morgan, 26 Colo. 415 (1899).
43. Atkin v. Kansas, 191 U.S. 207, 222-23 (1903).
44. Lochner v. New York, 198 U.S. 207, 222-23 (1903).
45. One of the best reasoned analyses of the case is Ernst Freund, "Limitations of Hours of Labor and the Federal Supreme Court," 17 Green Bag 411 (1905), which effectively attacks any claim Peckham may have had to judicial objectivity. See also Learned Hand, "Due Process of Law and the Eight-Hour Day," 21 Harv. L. Rev. 495 (1908). For a partial listing of the attacks upon and defenses of the Lochner decision, see Charles Warren, 3 The Supreme Court in United States History 435-36 (1922).
46. Cantwell v. Missouri, 199 U.S. 602 (1905); Ellis v. United States, 206 U.S. 246, 256 (1907).
47. Muller v. Oregon, 208 U.S. 412 (1908). I must also plead guilty to overstating the importance of this case; see, A Mind of One Piece 39-42.
48. 208 U.S. 421-23.
49. Felix Frankfurter, "Hours of Labor and Realism in Constitutional Law," 29 Harv. L. Rev. 353 (1916); Josephine Goldmark, Impatient Crusader: Florence Kelley's Life Story ch. 13 (1953).
50. B. & O. R.R. Co. v. I.C.C., 221 U.S. 612 (1911); United States v. Garbish, 22 U.S. 257 (1911).
51. Riley v. Massachusetts, 232 U.S. 718 (1914); Hawley v. Walker, 232 U.S. 718 (1914).
52. Miller v. Wilson, 236 U.S. 373 (1915); Bosley v. McLaughlin, 236 U.S. 385 (1915).
53. Wilson v. New, 243 U.S. 332 (1917).
54. Bunting v. Oregon, 243 U.S. 426 (1917); Atchison, Topeka & Santa Fe Ry. Co. v. United States, 244 U.S. 336 (1917); Dominion Hotel v. Arizona, 246 U.S. 265 (1919); United States v. Brooklyn East. Dist. Term., 249 U.S. 296 (1919).
55. 243 U.S. 426, 436-37.
56. Richard B. Morris, Government and Labor in Early America 17, 59 (1946); James T. Patterson, "Mary Dewson and the American Minimum Wage Movement," 5 Labor History 134, 139 (1964).
57. Emilie G. Hutchinson, Women's Wages 15 (1919).
58. "Legislative Minimum Wage for Women and Minors," 28 Harv. L. Rev. 89, 90 (1914).
59. Rome G. Brown, "The Statutory Minimum Wage," 22 Case and Comment 281 (1915).
60. Chicago Times, 4 Aug. 1888, quoted in Candela, supra, n. 37, 17; W. A. Croffert and Louis F. Post, "What Rights Have Labor?" 1 Forum 294, 295-296 (1885).
61. Godcharles v. Wigeman, 113 Pa. St. 431 (1886).
62. Tiedeman, 1 State and Federal Control § 100.
63. St. Louis, Iron Mt. & St. Paul Ry. Co. v. Paul, 173 U.S. 404 (1899).
64. Knoxville Iron Co. v. Harbison, 183 U.S. 13, 20 (1901). Justices Brewer and Peckham dissented without opinion.
65. McLean v. Arkansas, 211 U.S. 539 (1909); Erie Ry. Co. v. Williams, 233 U.S. 685 (1914); Keokee Cons. Coke Co. v. Taylor, 234 U.S. 224 (1914); Rail & River Coal Co. v. Yaple, 236 U.S. 338 (1915); Patterson v. Bark Eudora, 190 U.S. 169 (1903).
66. "Minimum Wage Legislation in the United States," 8 Am. Labor Legis. Rev. 355, 360-64 (1918).
67. Stettler v. O'Hara, 243 U.S. 629 (1917).
68. A classic statement of these doctrines may be found in Crispin v. Babbitt, 81 N.Y. 516 (1880).
69. James Weinstein, "Big Business and the Origins of Workmen's Compensation," 8 Labor Hist. 156, 158 (1967).
70. Farwell v. Boston & Worcester Rd., 4 Metcalf (Mass.) 49, 57 (1842).
71. Quoted in Lester P. Schoene and Frank Watson, "Workmen's Compensation on Railroads," 47 Harv. L. Rev. 389 (1934).
72. Id. 391; Roy Lubove, "Workmen's Compensation and the Prerogatives of Voluntarism," 8 Labor Hist. 254, 261 (1967).
73. Id. at 258-59; Robert F. Wesser, "Conflict and Compromise: The Workmen's Compensation Movement in New York, 1890s-1913," 12 Labor Hist. 345, 346 (1971); Weinstein, supra, n. 69, 170-171.
74. Bernard Schwartz, The Law in America: A History 123 (1974).
75. L.R. 3 H.L. 330 (1868).
76. Missouri Pac, Ry. Co. v. Mackey, 127 U.S. 205 (1888); Minnesota & St. Louis Ry. Co. v. Herrick, 127 U.S. 210 (1888).
77. 127 U.S. 205, 208, 209. Field, despite his reputation for conservatism, had four years earlier written a 5-4 decision limiting the fellow-servant doctrine by holding railroad conductors to be agents of the employer and not fellow-servants, thus making railroads liable for injuries to their employees through conductor negligence. Chicago, Milwaukee & St. Paul Ry. Co. v. Ross, 112 U.S. 377 (1884).
78. Harding C. Noblitt, "The Supreme Court and the Progressive Era, 1902-1921," 107 (doctoral diss., Chicago, 1955).
79. Beutler v. Grand Trunk Junction Ry. Co., 224 U.S. 85, 88 (1912); see also Butler v. Frazee, 211 U.S. 459 (1908).
80. First Employers' Liability Cases, 207 U.S. 463 (1908).
81. For an analysis of the law and a listing of the many court challenges, see William W. Thornton, "The Federal Employers' Liability Act," 22 Case and Comment 323 (1915).
82. Second Employers' Liability Cases (Mondou v. N.Y., N.H. & H. R.R. Co.), 223 U.S. 1, 52 (1912).
83. Lubove, supra, n. 72, 261.
84. Wesser, supra n. 73, 346.
85. Ernst Freund, "Constitutional Status of Workmen's Compensation," 2 Am. Labor Legis. Rev. 43 (1912).
86. Ives v. South Buffalo Ry. Co., 201 N.Y, 271 (1911). For a typical editorial lauding the decision, see "Socialism and the Law," 25 Bench and Bar 4 (1911).
87. 201 N.Y. Ives, as Bernard Schwartz noted, was not only wrong in its history about legal liability for tort in eighteenth century, America, but was an aberration even at the time. As a result of the huge uproar caused by the opinion, New York quickly amended its constitution to permit such legislation, and the Court of Appeals reluctantly had to approve a second act, one nearly identical in terms to the first, Jensen v. South Pac. Co., 215 N.Y. 514 (1915). Schwartz, Law in America 154.
88. Commons, 4 History of Labor 570-76.
89. Joel F. Paschal, Mr. Justice Sutherland: A Man Against the State 65-69 (1951).
90. Mountain Timber Co. v. Washington, 243 U.S. 219 (1917). White, McKenna, Van Devanter and McReynolds dissented without opinion, but from their consent in the other two cases, it may be inferred that they objected to the state-operated insurance fund, which invaded a field previously reserved for private enterprise.
91. Hawkins v. Bleakley, 243 U.S. 210, 213 (1917).
92. New York Central R.R. Co. v. White, 243 U.S. 188 (1917).
93. The only major challenge of a state regulation of child labor, the Illinois Child Labor Act of 1903, was disposed of in a short and unanimous opinion upholding the law. Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913).
94. Hammer v. Dagenhart, 247 U.S. 251 (1918). The 5-4 vote found Holmes, Brandeis, McKenna and Clarke in the minority.
95. Bailey v. Drexel Furn. Co., 259 U.S. 20 (1922). For the expansive view of the taxing power, see Veazie Bank v. Fenno, 8 Wall. 553 (1869), and the oelo case, McCray v. United States, 195 U.S. 27 (1904). Only Clarke dissented in the Bailey case.
96. Arizona Employers Liability Cases, 250 U.S. 400 (919).
97. Adkins v. Children's Hosp., 261 U.S. 525 (1923).
98. An excellent example of looking past the surface holding to discern the intent of the Court is Charles W. McCurdy, "The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869-1903," 53 Bus. Hist. Rev. 304 (1979).