The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves.
—JUSTICE JOSEPH BRADLEY (1873)
TO THIS POINT we have examined whether the Necessary and Proper Clause precludes or invites the exercise of judicial review of a federal statute to see if it lies within the powers of Congress to enact. What stance should federal courts take toward state legislation? The original Constitution contained several explicit restrictions on state power. Article I, Section 10 stipulates, for example, that
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.1
In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of what was called their “police power.” The nature and scope of this power will be examined at length in chapter 12.
Early on, the issue arose whether state laws were unconstitutional if they violated the rights enumerated in the Bill of Rights. In the 1833 decision of Barron v. Baltimore,2 the Marshall Court ruled that the Bill of Rights did not apply to state governments, a decision that most likely reflected the original intent of those who wrote and ratified the first ten amendments. In the years leading up to the Civil War, unencumbered by any federal scrutiny, local officials routinely suppressed abolitionist speech and the freedom of the abolitionist press. They denied abolitionists and free blacks the equal protection of the laws from mob violence and terrorism. After the war, the black codes and other measures violated the right of blacks and Republicans to keep and bear arms to protect themselves from mobs and other violence, as well as the natural rights of blacks to hold property and enter into contracts. Under the Constitution as then construed, neither Congress nor federal courts had the power to offer relief from these violations of rights.
After the Republicans in Congress abolished slavery with the Thirteenth Amendment, they then set out to address these other abuses of rights by passing the Civil Rights Act of 1866. President Johnson vetoed the act on the ground that it was outside the enumerated powers of Congress. Although his veto was overridden, many in Congress worried that its constitutional authority was shaky and that, because it was only a statute, a future Congress might repeal the act. Republicans in Congress responded to all this by adopting the Fourteenth Amendment, thereby changing fundamentally the constitutional structure. Along with this change, as we shall see, came an increased responsibility of the federal courts to scrutinize the necessity and propriety of state as well as federal legislation.
Prior to the Civil War, radical abolitionists continued to insist that the Bill of Rights applied to the states even after Barron v. Baltimore, contending that it was wrongly decided or ignoring it altogether. In addition, as was briefly touched upon in chapter 2, some abolitionists asserted that the Bill of Rights applied to the states via the Privileges and Immunities Clause of Article IV, which reads: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”3 This somewhat enigmatic provision was originally meant to protect the rights of out-of-state citizens from discrimination when they traveled to another state. It was not intended to protect citizens of a state from infringements of their liberties by their own state, but abolitionists were willing to seize upon a variety of textual provisions to advance their position, including this one.4
When their authority to enact the Civil Rights Act of 1866 was questioned, some members of Congress seemed unaware that Barron had limited the Bill of Rights to the national government. Others realized that a constitutional amendment was needed to reverse Barron and give Congress (and the courts) authority to protect the rights of citizens from violation by state governments and also to protect these rights from repeal by a future Congress. They proposed a provision in the Fourteenth Amendment that borrowed the language of the Privileges and Immunities Clause of Article IV, only this time making explicit the abolitionists’ contention that the clause was not limited to preventing discrimination against citizens from out of state, but also protected the rights of citizens from abuses by their own state government.
In the House of Representatives, it fell to John Bingham of New York, the author of the Fourteenth Amendment, to explain that the absence of any power in Congress to protect the rights of citizens from state governments “makes plain the necessity of adopting this amendment.”5 After reading passages of Marshall’s opinion in Barron, he passionately urged upon the House the necessity of a new amendment. “Is it not essential to the unity of the people,” he asked, “that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several states?”6 As it stands, he observed, Congress is empowered to protect Americans from tyranny abroad but is “powerless in time of peace, in the presence of the laws of South Carolina, Alabama, and Mississippi, … to enforce the rights of citizens of the United States within their limits.”7
He lamented that the original Constitution did not provide this protection. Its framers, he argued, were content to make the Constitution the supreme law of the land, require all state officers to take an oath to the Constitution, and then explicitly bind all state court judges to adhere to it. “Is it surprising,” he asked,
that essential as they held the full security to all citizens of all the privileges and immunities of citizens, and to all the people the sacred rights of persons, that having proclaimed them they left their lawful enforcement to each of the States, under the solemn obligation resting upon every State officer to regard, respect, and obey the constitutional injunction?8
What stopped them from going further and adding the additional grant of power represented by the Fourteenth Amendment? For Bingham, the answer was clear: slavery. “That is the only reason why it was not there. There was a fetter on the conscience of the nation; the people could not put it there and permit slavery in any State thereafter.”9 The matter was simple: “Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights”10 against the states.
As we saw in chapter 3, however, the term “privileges or immunities” was not limited to those listed in the Bill of Rights. It also included other legally protected natural rights—or “civil rights”—such as those listed in the Civil Rights Act itself.11 Recall that when explaining the meaning of the Privileges or Immunities Clause, Senator Jacob Howard first read the well-known quotation from Justice Washington’s opinion in Corfield, and then stated: “Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution.”12 He then continued: “To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.”13
When deference is based on trust, and trust is eroded, increased scrutiny follows. The enactment of the Fourteenth Amendment was specifically intended to subject state legislation to federal scrutiny to determine whether it violated the privileges or immunities of citizenship or whether it deprived any person of life, liberty, or property without due process of law. In essence, the exercise of power by state governments was now subject to new constitutional constraints in addition to those already provided for in Article I, Section 10. This alteration in the basic constitutional structure did not, however, go down well in the courts.
When the meaning of the Privileges or Immunities Clause was considered by the Supreme Court, its original meaning was set aside by a five-to-four decision in what are called The Slaughter-House Cases.14 These cases arose when, in 1869, the legislature of Louisiana passed an act ordering all animals imported for consumption in the city to be landed at certain places, and all intended for food to be slaughtered there. The same law also conferred on seventeen persons the exclusive right to maintain landings for cattle and to erect slaughter-houses, chartering them under the name of The Crescent City Live-stock Landing and Slaughter-House Company. This law was challenged by the Live Stock Dealers’ and Butchers’ Association, whose members would be prohibited from competing with the new monopoly.
At the appellate court level, Supreme Court Justice Bradley, sitting as a circuit court judge,15 indicated sympathy for a constitutional challenge based on the Privileges or Immunities Clause (although he ruled that the federal courts did not have power to enjoin state proceedings initiated by the Crescent City Company). Bradley began by distinguishing the new Privileges or Immunities Clause of the Fourteenth Amendment from the old Privileges and Immunities Clause of Article IV.16 The new provision “is not identical with the clause in the constitution which declared that ‘the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’ It embraces much more.”17 The “Privileges and Immunities” referred to in Article IV “were only such as each state gave to its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other states.”18 But the Privileges or Immunities Clause of the Fourteenth Amendment “prohibits any state from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges; but it demands that the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired.”19
In other words, while the Privileges and Immunities Clause of Article IV barred discrimination against out-of-staters, the Privileges or Immunities Clause of the Fourteenth Amendment barred states both from discriminating among different citizens within a state and from abridging or impairing the rights of all citizens even if the restrictions apply equally to all. Bradley then addressed the nature of these privileges a state cannot invade. “It may be difficult to enumerate or define them,” he began.
But so far as relates to the question in hand, we may safely say it is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit—not injurious to the community—as he may see fit, without unreasonable regulation or molestation, and without being restricted by any of those unjust, oppressive, and odious monopolies or exclusive privileges which have been condemned by all free governments.…20
According to Justice Bradley, this and other essential privileges
cannot be invaded without sapping the very foundations of republican government. A republican government is not merely a government of the people, but it is a free government. Without being free, it is republican only in name, and not republican in truth, and any government which deprives its citizens of the right to engage in any lawful pursuit, subject only to reasonable restrictions, or at least subject only to such restrictions as are reasonably within the power of government to impose,—is tyrannical and unrepublican. And if to enforce arbitrary restrictions made for the benefit of a favored few, it takes away and destroys the citizen’s property without trial or condemnation, it is guilty of violating all the fundamental privileges to which I have referred, and one of the fundamental principles of free government.21
When the various slaughter-house cases finally made their way to the full Supreme Court, Bradley’s approach was rejected by a vote of five to four. Writing for the majority, Justice Miller distinguished between the privileges and immunities of national citizenship, which were created by the Constitution and protected by the Fourteenth Amendment, and the privileges and immunities or “civil rights” of state citizenship, which corresponded to what Justice Washington wrote in Corfield and were protected by the Privileges and Immunities clause of Article IV. The latter “are those which belong to citizens of the States as such, and … they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government.”22
In defense of this interpretation, Miller offered no direct evidence from the statements of those who proposed the Fourteenth Amendment. Such proof would have been impossible. Instead, he ignored the original meaning of the clause to rest his conclusion instead on the consequences of holding otherwise. If the “privileges or immunities” protected by the Fourteenth Amendment were as broad as the category of “civil rights,” he contended, then
not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects.23
This, argued Miller, would be to give Congress a national police power that would supersede the traditional powers of the states in every area of legislation and would “radically change[ ] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”24 In the absence of “language which expresses such a purpose too clearly to admit of doubt,”25 Miller concluded that “no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”26 Because the privilege to pursue one’s trade or occupation was a “civil right” and not a privilege of national citizenship it was, therefore, unprotected by the Fourteenth Amendment.
What then, according to Justice Miller, were the privileges and immunities of national citizenship protected by the amendment? He declined to elaborate since it was clear to him that the right asserted by the claimants was not among them. But he did list a few “which owe their existence to the Federal government, its National character, its Constitution, or its laws.”27 A citizen has the right
to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.…
Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.… The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State.28
The dissenting justices, in separate opinions, took strong issue with Miller’s imputation of intent to Congress. On the majority’s interpretation, wrote Justice Field, “it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.… But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.”29 What, then, did Field think were the privileges and immunities that were secured against abridgment by state legislation? Field’s answer rested importantly on evidence of original meaning.
First were the civil rights protected by the Civil Rights Act including “the right ‘to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.’ ”30 He also referenced the list recited by Justice Washington in Corfield:
Mr. Justice Washington said he had “no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental; which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign;” and, in considering what those fundamental privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be “all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.”31
To Justice Field, this appeared to “be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments.”32 Unlike Miller, Field referred to the congressional debates, noting that
repeated reference was made to this language of Mr. Justice Washington. It was cited by Senator Trumbull with the observation that it enumerated the very rights belonging to a citizen of the United States set forth in the first section of the act, and with the statement that all persons born in the United States, being declared by the act citizens of the United States, would thenceforth be entitled to the rights of citizens, and that these were the great fundamental rights set forth in the act; and that they were set forth “as appertaining to every freeman.”33
In essence, the majority found there to be two classes of privileges and immunities: national and state. The national ones were those specifically designated in the Constitution or directly derivable from its national character; the state ones were the full panoply of natural or “civil rights” that pertain to all free persons. The Privileges or Immunities Clause of the Fourteenth Amendment protects the former absolutely, while the Privileges and Immunities Clause of Article IV protects the latter by protecting citizens from discrimination when they are residing or acting in other states. In contrast, Justice Field contended that there was just one set of privileges and/or immunities that formerly had been unprotected from state infringement, but which had been given national protection by the enactment of the Fourteenth Amendment. As between the two, the dissenters’ position is clearly more consonant with the original meaning of “privileges or immunities” that I canvassed in chapter 3 and the origins of the clause described in this chapter.
Like Justice Field’s opinion, which discussed the original meaning of “privileges or immunities,” Justice Bradley’s dissenting opinion elaborated the arguments he had made earlier while riding circuit concerning the meaning of this phrase and again quoted Justice Washington’s opinion in Corfield. But Bradley also offered an important theoretical rebuttal to Justice Miller’s contention that equating “privileges or immunities” with civil rights would be to establish a broad national power that would supersede those of the states.
The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves.34
In this neglected passage, Justice Bradley makes a crucial distinction I mentioned at the end of the previous chapter: the distinction between regulating the exercise of a civil right and improperly subverting or abridging its exercise; or between “regulating and facilitating” rightful conduct and “prohibiting or discouraging” it. States were free to regulate civil rights—that is, specify “the manner of their exercise”—and Congress was not empowered by the Fourteenth Amendment to do so. What the amendment did was to give the national government jurisdiction to protect these civil rights from being improperly abridged or subverted in the name of the “right of regulation.” In the last portion of his dissent, Justice Bradley examined whether the monopoly at issue in The Slaughter-House Cases was a reasonable regulation and concluded that it was not.
Justice Bradley also offered a useful distinction between the Fourteenth Amendment’s Privileges or Immunities Clause and its Due Process Clause. Among the most fundamental privileges or immunities protected by both provisions were those described by Blackstone as that of life, liberty, and property, and by the Declaration of Independence as that of life, liberty, and the pursuit of happiness. “These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.”35
The function of the Due Process Clause can be seen as prohibiting a state from depriving particular individuals, whether citizens or not, of their life, liberty, or property (“Nor shall the state deprive any person …”). The function of the Privileges or Immunities Clause is to protect the citizenry as a whole against unnecessary or improper legislation that infringes upon the exercise of their civil rights or liberty (“No state shall make or enforce any law …”). In other words, under the Due Process Clause of the Fourteenth Amendment, one cannot have his or her rights taken away without due process of law. And under the Privileges or Immunities Clause, Justice Bradley would require that legislation that purported to “regulate” or modify the exercise of any civil right—including that to life, liberty, and property—be both necessary and proper for the common good.
In this way, Justice Bradley resolved an obvious and long-standing tension between the two provisions. If the Privileges or Immunities Clause is read to protect the rights found in the Bill of Rights, how is it that states may not abridge such rights as the right peaceably to assemble, but may abridge what appear to be the even more fundamental rights to life, liberty, and property provided only that “due process” is given? The answer is (a) that the Privileges or Immunities Clause includes the rights of life, liberty, and property in addition to those listed in the Bill of Rights, and (b) that legislation that improperly “abridges”—rather than regulates—any one of the entire set of civil rights is prohibited, whereas even a proper law36 may not be used to deprive any particular person of her life, liberty, or property unless she is accorded due process. Whereas the Privileges or Immunities Clause protects a broad set of rights—including life, liberty, and property—of all citizens from improper laws, the Due Process Clause protects the life, liberty, or property of all persons from an improper application of an otherwise proper law.37
Bradley also responded to Justice Miller’s claim that providing federal protection of fundamental civil rights would bring into federal courts the full panoply of cases now decided by state courts. “As the privileges and immunities protected are only those fundamental ones which belong to every citizen, they would soon become so far defined as to cause but a slight accumulation of business in the Federal courts. Besides, the recognized existence of the law would prevent its frequent violation.”38 By placing so much weight on consequences, the majority was, thought Bradley, putting the cart before the horse. “The great question is, What is the true construction of the amendment? When once we find that, we shall find the means of giving it effect. The argument from inconvenience ought not to have a very controlling influence in questions of this sort.”39
Justice Miller’s majority opinion has long been thought to have gutted the Privileges or Immunities clause of any real significance and, indeed, after Slaughter-House it ceased to play any important function. On the other hand, as has been pointed out by Kevin Newsom, Miller’s opinion can be interpreted (though it has not been) as adopting the middle ground of protecting all the rights explicitly protected in the Constitution—including the Bill of Rights—but not the “civil rights” that are unmentioned there.40 The majority opinion’s reference to the right in the First Amendment to peaceably assemble as a protected privilege or immunity of national citizenship supports Newsom’s interpretation of the case. If Newsom is right, then the butchers lost because the right they asserted was not among those that were enumerated in the Constitution.
While a significant advance over the prevailing view of Slaughter-House, even this more expansive interpretation of Miller’s opinion conflicts with the original meaning of “privileges or immunities.” As we have seen, the framers of the Fourteenth Amendment, and its supporters in Congress, spoke often of protecting the Bill of Rights from infringement by states, but they clearly did not limit the meaning of this clause to these rights. They repeatedly referred to Justice Washington’s expansive list of rights in Corfield, to the concept of natural or “civil” rights, in addition to the privileges contained in the Bill of Rights. Among these additional privileges or immunities rights were the rights listed in the Civil Rights Act of 1866. And they made no distinction whatever between classes of state and national privileges or immunities.
In his dissenting opinion, the third of the three dissents filed in the case, Justice Swayne made much the same originalist point:
The construction adopted by the majority of my brethren is, in my judgment, much too narrow. It defeats, by a limitation not anticipated, the intent of those by whom the instrument was framed and of those by whom it was adopted. To the extent of that limitation it turns, as it were, what was meant for bread into a stone. By the Constitution, as it stood before the war, ample protection was given against oppression by the Union, but little was given against wrong and oppression by the States. That want was intended to be supplied by this amendment. Against the former this court has been called upon more than once to interpose. Authority of the same amplitude was intended to be conferred as to the latter. But this arm of our jurisdiction is, in these cases, stricken down by the judgment just given. Nowhere, than in this court, ought the will of the nation, as thus expressed, to be more liberally construed or more cordially executed. This determination of the majority seems to me to lie far in the other direction.41
Swayne concluded by expressing his earnest “hope that the consequences to follow may prove less serious and far-reaching than the minority fear they will be.”42
The Fourteenth Amendment was born of a newfound distrust of state governments. The immediate cause of this distrust was, of course, the imposition of chattel slavery by state governments in the South before the war and the resistance to reconstruction afterward. But while it was instigated by the experience of reconstruction, the Fourteenth Amendment was never intended to apply only to former slaves. Indeed, among the core of its concerns was the protection of free speech, peaceable assembly, and the right to keep and bear arms by white, as well as black, supporters of Reconstruction. Both before and after the Civil War, the civil liberties of white unionists and abolitionists were severely restricted in the South, much to the dismay of Northern Republicans.43
Moreover, the principles that were advanced against slavery applied to whites in another way. Abolitionists had developed a principle known as “free labor.” The right to one’s labor was one’s own, they argued, and could be alienated only by consent. Even when a contract to work for another was made, such contracts could not be specifically or coercively enforced. As was explained in the 1865 case of Ford v. Jermon, “Is it not obvious that a contract for personal services so enforced would be but a mitigated form of slavery, in which the party would have lost the right to dispose of himself as a free agent, and be, for a greater or less length of time, subject to the control of another?”44
Like the Thirteenth Amendment, which prohibited involuntary servitude, the free labor principle protected whites as well as blacks. Although the facts in Slaughter-House did not concern African slavery or its vestiges, the dissent nonetheless understood the liberty to pursue an occupation to be a fundamental right closely related to “free labor.” The monopoly granted by Louisiana, they argued, directly abridged the right to pursue the lawful occupation of butcher by depriving butchers of the requisite of maintaining a slaughter-house.
Soon after its adoption, then, the Fourteenth Amendment was invoked by citizens seeking protection of their liberties from improper restrictions by states that were not motivated by racial discrimination. While the decision in Slaughter-House effectively foreclosed using the Privileges or Immunities Clause for this purpose, the theories advanced by the four dissenters were later shifted to the Due Process Clause and, for a time, came to prevail.
The last decades of the nineteenth century witnessed the growth of socialist, “progressive,” and “populist” political movements throughout the United States and Europe. The roots of this political sea change are complex and I shall not offer a definitive account of them here. Perhaps they include the rise of scientific empiricism that made the abstract natural rights beliefs of the founders and authors of the Fourteenth Amendment seem archaic. Perhaps the change reflected a philosophical shift in the conception of liberty from the individualism of Locke to the utilitarianism of Bentham and Mill. Perhaps the new wealth made possible by the age of inventions and the free flow of capital and labor created a heretofore unprecedented disparity of incomes among the citizenry, and a newfound luxury of imagining that poverty could be ameliorated by enlightened state intervention. And perhaps the nouveau riche threatened the old-line families as well. These are only some of the possibilities.
New technologies of transportation, such as the steamship, greatly lowered the cost of transoceanic travel, bringing waves of immigrants to the United States and, with them, more European political ideas. Americans also witnessed the appalling living conditions and breakdowns in public order that normally accompany mass migrations. Would these aliens with their many languages assimilate into American society? Undoubtedly the intellectual shift was greatly encouraged by the example of Otto von Bismarck’s new welfare state in Germany with its government schools, government pensions, and government-mandated worker-compensation schemes. These, along with German accomplishments in the arts and sciences, made the German socialist model appear to be the wave of the future. (And well it might have been had it not been for the militarism that invariably accompanies collectivism and statism.)
All these influences, and many more, led to a movement away from a political culture in which government was considered a necessary evil—to be kept as limited in its power as possible consistent with the few essential tasks it was needed to perform—and toward one in which government was viewed as the vital instrument for addressing social problems. As important as any of the other factors mentioned, the American Civil War provided encouragement to this shift, by enhancing the moral authority of the central government and undermining the moral appeal of true federalism. By granting to the federal government unprecedented new powers that were deemed necessary to preserve the union at gunpoint—including the first national military draft—in service of ending human bondage, the Civil War had reversed the American fear of “consolidation” and made the national government into a necessary force for good.45 In the words of Jeffrey Hummel, “[t]he Civil War represents the simultaneous culmination and repudiation of the American Revolution.”46
The word “liberalism” itself was transformed. No longer was it applied to the political philosophy based on individual rights of life, liberty, property, free trade, anti-imperialism, and limited constitutional government. Now it included the aggressive, but enlightened, use of government power to improve the material conditions of mankind to nurture “true” freedom, both domestically and internationally.
One way to understand this is as a shift in means. New liberals shared with classical liberals their concern for individual welfare and the pursuit of happiness, and their hostility toward aristocracy and privilege. But the new liberals viewed the means of limited constitutional government as entirely unsuited to the effective pursuit of these noble ends. Having lived their entire lives under the scheme of constitutional limitations, they viewed the old fears of government as quaint and even irrational. Moreover, had not an unprecedented expansion of government been the instrument of justice in the Civil War? Slavery was surely not the only injustice that required redress. Everywhere one turned, there were new or old “social” problems to be solved.
There was of course a major legal barrier to using the government in this way: a written constitution drafted by generations of Americans who held fundamentally different beliefs about law and government coupled with those many Americans, both on and off the bench, who still hewed to these beliefs. At the national level where the principal source of revenue was excise taxes and tariffs, income redistribution was next to impossible. In the Senate, where senators were selected by state legislatures, states could effectively block the growth of federal power. At the state level, individuals and companies could bring suit in state and federal court to block new “progressive” state laws and such lawsuits would eventually find their way to the Supreme Court.
While the Supreme Court was not unmoved by the progressive zeitgeist, the limits provided by the written Constitution caused it to seek a middle ground. Checking the progressive enthusiasm even occasionally, however, would cast the Supreme Court as a highly visible enemy of enlightened change and make it the target of vicious attacks. In 1895, for example, it held a national income tax of 2 percent to be unconstitutional on the grounds that it was a “direct” tax and therefore had to a be apportioned among the states according to population as was required by Article I, Section 8.47
It was not until 1913 that this limitation on national power was reversed by the Sixteenth Amendment, and it was in the same year that the Seventeenth Amendment was ratified, replacing the selection of senators by state legislatures with direct election by voters.48 These were the first amendments to be enacted since the Fifteenth Amendment forty-three years earlier had extended the franchise to blacks. By eliminating two of the principal structural obstacles to the growth of national power, these two amendments altered the federal system far more than did the Fourteenth Amendment, especially as limited by Slaughter-House.
Although The Slaughter-House Cases left the Privileges or Immunities Clause to wither on the vine, it did not repeal the rest of the text. Litigants shifted their focus to the Due Process Clause, which reads, “nor shall any state deprive any person of life, liberty, or property, without due process of law.” Unlike the Privileges or Immunities Clause, the Due Process Clause explicitly mentions the fundamental “privileges or immunities” of life, liberty, and property.
But also unlike the Privileges or Immunities Clause, it does not promise absolute protection; it promises only that individuals cannot be deprived of these rights without “due process of law.” As such, the Due Process Clause seems to contain the negative implication that life, liberty, and property may be taken away with due process of the law. This is not surprising because, as was already seen, it was the Privileges or Immunities Clause that was designed to provide “absolute” protection from abridgment by legislation (“No State shall make or enforce any law …”), whereas the Due Process Clause was intended to protect individuals from the unjust application to them of otherwise permissible legislation (“nor shall any person be deprived …”).
Because the Due Process Clause appears to protect only “process” or procedures, its use by courts to protect “substantive” privileges or immunities against any infringement invites ridicule. And it has been ridiculed ever since—first by Progressives and, in the last decades of the twentieth century, critics on the left were joined by political conservatives. Both groups dismissed as a contradiction in terms what they have dubbed “substantive due process”—a term devised, not by the courts applying the Due Process Clause to protect background rights from unreasonable regulations and restrictions, but derisively by the critics of these decisions.49 They delight in lampooning the apparent redundancy of its supposed opposite, “procedural due process.”
Once one gets past the distorted labels devised by critics, using the Due Process Clause to do the work of the Privileges or Immunities Clause has a powerful argument on its behalf that critics ignore: the due process of law includes judicial review. Unless all constitutional limitations on government are to be abandoned, courts exercising their power of nullification are entitled to ask if the law being applied to the person exceeds the constitutional powers of the legislature. Given that there is also a Due Process Clause in the Fifth Amendment, the same scrutiny is invited at the national level.
Put another way, a vital element of the “due process of law” is the judicial scrutiny of the necessity and propriety of legislation. Allowing legislatures to deprive any person of life, liberty, or property without providing a judicial forum in which the limits of legislative power can be contested and adjudicated is a denial of this due process. Moreover, the Fourteenth Amendment requires the due process of law. As was discussed in chapter 6, an unconstitutional statute violates the supreme law of the land—the Constitution itself. When such a conflict occurs, as Hamilton argued, it is the duty of the judicial branch to obey the superior law and ignore the inferior.
The criticism that “substantive due process” is contradictory (and “procedural due process” redundant) poses as a textual argument. But once the “due process of law” is viewed as including judicial review, as it unquestionably did, and once the Constitution is considered a law that supersedes ordinary statutes, as it unquestionably was, the textual argument evaporates. What remains is the criticism that this was not the original meaning of “due process of law” when the Fourteenth Amendment was enacted.
Aside from its ignoring the historical evidence that the term “due process” had long been used in this manner,50 the irony in such a protest is patent. A judicial assessment of the necessity and propriety of state laws is entirely consistent with the original meaning of the Privileges or Immunities Clause. For this reason, a doctrine of “substantive due process” restores rather than violates the original historical meaning of Section 1 of the Fourteenth Amendment taken as a whole from the damage done by Slaughter-House. Conversely, a sole reliance on “procedural due process,” while continuing to disregard the Privileges or Immunities Clause, completely distorts the operation of Section 1.51
In the spirit of the Slaughter-House dissenters and following the lead of many state courts, the Progressive Era Supreme Court eventually employed the Due Process Clause to establish some outer limits on government power. In Meyer v. Nebraska,52 for example, the clause was used to nullify a statute mandating that no student, whether in government or private school, be taught in any language other than English until after completing the eight grade. The defendant was convicted under this statute for teaching the German language in a parochial school. The state claimed that this was within its police power and the Supreme Court of Nebraska agreed. The purpose of the statute was summarized by that court as follows:
The legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety.… The enactment of such a statute comes reasonably within the police power of the state.53
The Supreme Court disagreed with the state’s claim of power, holding that this statute “unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment.”54 This liberty, explained Justice McReynolds,
denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.55
In other words, McReynolds found that the Due Process Clause protected those “civil rights” or “privileges or immunities” that had been asserted by the framers of the Fourteenth Amendment when speaking of the meaning of the Privileges or Immunities Clause—the interpretation rejected by the five-judge majority in Slaughter-House. (So it is curious indeed that the first on the list of cases cited by McReynolds in support of this proposition is Slaughter-House itself.)
How did Justice McReynolds justify protecting this “privilege or immunity” under the Due Process Clause? “The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.”56 The Due Process Clause requires that the legislature not be the sole judge of such matters, but that any person whose liberty is abridged has a right to seek redress in a court of law to determine whether the action of the legislature exceeds its lawful constitutional power. As the Court made clear: “Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.”57
The Court concluded in this case that the statute exceeded the police power of the state of Nebraska by finding that the means chosen was unrelated to any appropriate end. The state claimed that its mandate was issued to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals. The Court rejected the idea that the state could pursue this end by means that abridged the “fundamental rights” of “the individual.”58 In short, “a desirable end cannot be promoted by prohibited means.”59
To illustrate this principle, McReynolds quoted from the Republic, in which Plato suggested that all children be taken from their parents and raised by the State as Sparta had done with its male children. “Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.”60 This was an interesting choice of words in an era in which more than a few “great geniuses” were proposing fundamental reconstructions of “the relation between individual and state.” As interesting, perhaps, is the fact that Justice Oliver Wendell Holmes, Jr., dissented to this decision (without opinion) and would thus have upheld the power of states to prohibit the teaching of foreign languages.
In Pierce v. Society of Sisters,61 the Due Process Clause was used by the Court to strike down a law mandating that all children attend public—that is, government—schools. As in Meyer, the issue for the Court was the relationship of means to ends. While the Court did not deny the power of the state to regulate schools, in another opinion by Justice McReynolds, it demanded that the state establish a legitimate reason to restrict both the liberty of parents to send their children to private schools as well as the liberty of the schools to operate. Private education, explained McReynolds, is “not inherently harmful, but long regarded as useful and meritorious.”62 The state had shown nothing to rebut this long-established view. “Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students, or the State. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education.”63
In Pierce, as in Meyer, the Court held that due process required legislatures to establish to the satisfaction of an independent tribunal that its restrictions on liberty were necessary and proper: “[R]ights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State.”64 Applied to the statute in Pierce, this principle led to the conclusion that
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.65
The schools themselves had a right not to be deprived of their sometimes lucrative business without a showing of necessity and propriety. The business and property of these schools “are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action.”66
Decisions like Meyer and Pierce were not what infuriated the progressive intelligentsia. Indeed, both cases remain good law to this day. No, what drove political progressives into a frenzy was the Court’s application of the same means-ends scrutiny to legislative restrictions on what came to be called “economic” liberty. In this area, the Court protected the liberty of contract—or what was referred to in the Civil Rights Act of 1866 as the “right to make and enforce contracts.” As in Meyer and Pierce, the Court found that the “due process of law” included judicial scrutiny to ensure that a deprivation of life, liberty, or property was within either the “police power” of the state or the enumerated powers of the national government.
Given the pervasiveness of political motives in conflict with the original constitutional scheme of limited powers, the Supreme Court would not simply take the legislature’s word for its claim that some restriction of liberty was necessary to accomplish an appropriate end. The Court began requiring some proof that this was the case. It required states to show that legislation infringing upon the liberties of the people really was a necessary exercise of the state’s police power—a power that it held, quite expansively, to include the protection of the health, safety, and morals of the general public. It seems clear that a majority of justices became suspicious that arguments of necessity were merely pretexts for transforming the original constitutional scheme of limited and enumerated constitutional powers into one that would make possible the growth of what we now know as the welfare/administrative state.
This skepticism of legislative motive was nowhere better exemplified than in the case of Lochner v. New York.67 Lochner involved a statute enacted by New York containing a myriad of regulations on the operations of bakeries—from the ceiling height (eight feet) to the types of floors (“an impermeable floor constructed of cement, or of tiles laid in cement, or an additional flooring of wood properly saturated with linseed oil”)68 to the fact that the walls must be whitewashed every three months. Only one of the many provisions of this act was examined by the Court for its constitutionality: a provision making it a criminal offence to employ a worker for more than sixty hours per week.69 Defendant Joseph Lochner was indicted and convicted of this offense and sentenced to a fine of fifty dollars or fifty days in jail.
As in Meyer and Pierce, the issue for the court was whether this prohibition abridged the liberty protected by the Fourteenth Amendment and exceeded the police power of the state. The Court found that the statute did indeed infringe upon the liberty of both employer and employee to make and enforce contracts.
The statute necessarily interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.70
In words reminiscent of the “free labor” philosophy invoked by the dissenters in Slaughter-House, Justice Rufus Peckham wrote: “The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right.”71
Justice Peckham proceeded to discuss the nature of “certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts.”72 These powers of state government “relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere.”73 Peckham then listed many cases in which the Court had upheld restrictions on the freedom of contract that were legitimate exercises of the police power.
Nevertheless, the police power was not unlimited. “Otherwise the Fourteenth Amendment would have no efficacy and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people.”74 Were such bare assertions deemed sufficient, “such legislation would be valid, no matter how absolutely without foundation the claim might be.”75
In other words, the Court could not, under the Due Process Clause, merely take the legislature’s word that it was acting pursuant to its police powers. For if such a claim was without foundation, it “would be a mere pretext” and “become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint.”76 If the limitations imposed on state powers by the Fourteenth Amendment are to be respected, then the Court must ask: “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 right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?”77
Justice Peckham denied that judicial review of this sort put the Court’s opinion of policy above that of the legislature. “This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the State it is valid, although the judgment of the court might be totally opposed to the enactment of such a law.”78 For Peckham and the majority, if the Fourteenth Amendment was to have its intended effect, the following question could not be avoided: Is a statute “within the police power of the State? and that question must be answered by the court.”79
As for the maximum-hour prohibition in the bakery trade, the Court found no evidence that bakers were in peculiar need of assistance to look out for their own interests, nor that this prohibition was necessary to respond to some health and safety concern affecting the general public and therefore within the state’s police power. Of particular significance was the issue of proof and who was required to present it. The court viewed this, not as an issue of judicial supremacy, but as involving a clash between the rights of an individual and the power of the state. “It is a question of which of two powers or rights shall prevail—the power of the state to legislate or the right of the individual to liberty of person and freedom of contract.”80
In a crucial passage for our purposes, the Court placed the burden on the state:
The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.81
Thus, the doctrine of Lochner—and all the cases in which the court used the Due Process Clause of the Fourteenth Amendment to protect liberty—boils down a proposition that some today find shocking: When the liberty of the individual clashes with the power of the state, the Court would not accept the “mere assertion” by a legislature that a statute was necessary and proper. Instead, it required a showing that a restriction of liberty have a “direct relation, as a means to an end,” and that “the end itself must be appropriate and legitimate.” Having offered no such evidence, the State of New York lost.
Lochner is famous, not only for its holding, but for the dissenting opinion filed by Justice Holmes. From this and his other similar opinions, Holmes came to be known as the Great Dissenter and was a hero to a generation of progressive scholars and activists. Holmes took direct aim at the Court’s assertion that it was protecting the liberty of the individual: “The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.”82 This principle he dismissed in one of the best-known of his many aphorisms: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”83
This charge was as unfair as it was memorable. The majority’s position can most accurately be characterized as adopting the conception of civil rights or “privileges or immunities” held by the framers of the Fourteenth Amendment. The intellectual lineage of these rights is more directly traced to John Locke than to the nineteenth-century British writer Herbert Spencer. “The 14th Amendment does not enact Mr. John Locke’s Two Treatises of Government” would not have conveyed quite the same sense of historical absurdity. But perhaps the suggested absurdity is itself unhistorical.
In 1866, in the immediate aftermath of the Fourteenth Amendment, Senator Benjamin Brown, Democrat of Mississippi in the Thirty-ninth Congress, specifically invoked Herbert Spencer’s “law of equal freedom” and his Social Statics when defending the extension of the right to vote in the District of Columbia to blacks:
The foundation upon which all free government rests, and out of which all natural rights flow as from a common center, has been well stated by Mr. Herbert Spencer in a late work on Social Statics, to be the “like liberty of each limited by the like liberty of all.” As the fundamental truth originating and yet circumscribing the validity of laws and constitutions, it cannot be stated in a simpler form. As the rule in conformity with which society must be organized, and which distinguishes where the rightful subordination terminates, and where tyranny, whether of majorities or minorities, begins, it cannot be too much condemned. “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man,” is stated as the law of just social relationships, and in it the rights of individual liberty of thought, of speech, of action find their complete expression.84
Brown observed that Spencer’s principle also implied a fundamental equality among persons. “It will be observed that equality is the essence of it all. In fact any recognition of an inequality of rights is fatal to liberty.”85
Unlike Senator Brown, for Holmes the issue was not the liberty of the individual but “the right of a majority to embody their opinions in law.”86 The majoritarianism of Holmes’s position was also revealed near the end of his brief opinion when he stated that “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.…”87 The only test that Holmes would have used to uphold an exercise of majority will was whether “a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”88 So long as any “[m]en whom I certainly could not pronounce unreasonable would uphold”89 such a statute, it would be constitutional. This majoritarian vision also explains Holmes’s dissent in Meyer, where he was willing to uphold the prohibition on teaching children a foreign language.
Holmes’s ardent majoritarianism was articulated in a later opinion in Noble State Bank v. Haskell.90 “It may be said in a general way that the police power extends to all public needs,” wrote Holmes. “It may be put forth in aid of what is sanctioned by usage or held by the prevailing majority or strong and preponderant majority to be greatly and immediately necessary to the public welfare.”91 His overriding commitment to legislative majoritarianism helps explain another Holmes dissent that is rarely discussed.
In the 1911 case of Bailey v. Alabama92 the “Lochner” Court struck down as unconstitutional a state statute criminalizing breach of employment contracts by creating a presumption of fraud whenever a worker quits his job after receiving any advanced payment of wages. Such statutes were aimed at black workers as part of “Jim Crow.” The Court found in this scheme a surreptitious effort to revive peonage and involuntary servitude in violation of the Thirteenth Amendment. This was just one of several examples of how the Progressive Era Court’s skepticism about legislation aided much-beleaguered black workers.93
Holmes, in contrast, ignored both the fiction and effect of the statutory presumption of fraud and dissented from the decision. “If the contract is one that ought not to be made, prohibit it. But if it is a perfectly fair and proper contract, I can see no reason why the State should not throw its weight on the side of performance.”94 Here, as elsewhere, Holmes sides with the “preponderant majority.”
Despite the contrast, it is the majority in Lochner, not the majoritarianism of Holmes, that academic commentators have found shocking for all these years. While Holmes remains a revered figure, “Lochnerizing” is considered a venial, if not a mortal, judicial sin. For all the rhetorical fireworks of Holmes’s opinion in Lochner, however, it was Justice John Harlan’s dissent that more directly addressed the doctrine established by the Court. Unlike Holmes, Harlan did not disparage the nature of the fundamental liberty articulated by the majority.
Speaking generally, the State in the exercise of its powers may not unduly interfere with the right of the citizen to enter into contracts that may be necessary and essential in the enjoyment of the inherent rights belonging to everyone, among which rights is the right “to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation.”95
Indeed, in the 1908 case of Adair v. United States,96 Harlan wrote the opinion of the Court, declaring that legislative prohibitions on contract terms barring union membership (dubbed “yellow dog contracts” by union supporters) were unconstitutional. “The right of a person to sell his labor upon such terms as he deems proper is, in its essence,” wrote Harlan, “the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell.”97 He then affirmed that “the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.”98
For Harlan, the issue was who bears the burden of showing the necessity and propriety of restrictions upon this liberty. The Court in Lochner required that the legislature had to assert some evidence or proof on behalf of a restriction on liberty. By contrast, Harlan thought the presumption ought to run the other way.
If there be doubt as to the validity of the statute, that doubt must therefore be resolved in favor of its validity, and the courts must keep their hands off, leaving the legislature to meet the responsibility for unwise legislation. If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere. In other words, when the validity of a statute is questioned, the burden of proof, so to speak, is upon those who assert it to be unconstitutional.99
As authority for this presumption of constitutionality, Harlan cited McCulloch v. Maryland.
Holmes, and to a lesser extent Harlan, criticized the majority for claiming the existence of a fundamental liberty of contract in the face of prior precedents restricting its exercise. But this was to attack a straw man, given that the Court never claimed this right to be absolute. In Adkins v. Children’s Hospital of the District of Columbia,100 it made this clear:
There is, of course, no such thing as absolute freedom of contract. It is subject to a great variety of restraints. But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.101
In Adkins, the court attempted to rationalize numerous exceptions it had made to the general rule. Notwithstanding these exceptions, the existence of the right meant that the legislature had the burden of justifying to the satisfaction of an independent tribunal any additional restrictions on liberty.
For Holmes, in dissent, the concept of an exception eluded him here, as it had in Lochner. For him, the bare existence of exceptions was alone enough to refute the general rule, and no further justification was required. “[P]retty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.”102 It was thus to be left entirely to the legislature to decide whether or not any restriction was warranted.
In response to the Progressive Era Court’s demand for some proof that the legislation in question was a reasonable means of pursuing an appropriate end, lawyers began presenting courts with empirical support for particular legislation. The most famous of these litigators was future justice Louis Brandeis, whose extensive citations of the social science literature became known as “Brandeis Briefs.”103 Upon being presented with Brandeis’s ninety-five page brief in Muller v. Oregon,104 the Court upheld a statute mandating maximum working hours for women. In addition to listing similar state and foreign statutes, the brief contained “extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labor are dangerous for women, primarily because of their special physical organization.”105 Thus, the presumption of liberty established by the Progressive Era Court was rebuttable. It was perfectly willing to find statutes constitutional in light of facts made known to it, though Muller was later cited as a precedent for upholding restrictions on liberty even in the absence of such information.
Although this chapter primarily concerns the judicial review of state laws, the discussion of the Progressive Era Court’s willingness to scrutinize legislation would be incomplete without mention of its treatment of federal laws. In the early years of the era, progressive and populist legislation emanated primarily from the states, and therefore implicated the Due Process Clause of Fourteenth Amendment. With the election of Franklin Roosevelt in 1932, Congress began passing ambitious statutes, which then came under the scrutiny of the Supreme Court under the rubric of the Due Process Clause of the Fifth Amendment.
As in the state cases, the Court examined both the necessity and the propriety of the challenged statutes. By necessity, I mean the degree of means-end fit. By propriety, I mean whether the statutory restriction fell within one of the enumerated powers—usually the commerce power—or was a pretext for the exercise of other powers it had not been delegated.106 Typical of these cases was Railroad Retirement Board et al. v. Alton R. Co.,107 in which the Court evaluated the constitutionality of a statute requiring railroads to give retirement pensions to their employees (and former employees as well) on terms determined by Congress.
In evaluating the constitutionality of the act, the Court distinguished between its necessity and its propriety. As to the first issue, the Court stated:
If we assume that under the power to regulate commerce between the States Congress may require the carriers to make some provision for retiring and pensioning their employees, then the contention that various provisions of the Act are arbitrary and unreasonable and bear no proper relation to that end must be considered.108
After a lengthy analysis of the complexities of the statutory requirements, the Court concluded that they did not meet this test.
On the second issue of “propriety” the Court concluded that “The Act is not in purpose or effect a regulation of interstate commerce within the meaning of the Constitution.”109 Distinguishing between “constitutional power” and “social desirability,”110 the court examined the rationales on behalf of the statute and found them to be too distant from the regulation of commerce to be acceptable. Instead, the purpose of the statute was not the regulation of commerce but the enhancement of the social welfare of workers beyond their voluntary terms of employment.
The catalogue of means and actions which might be imposed upon an employer in any business, tending to the satisfaction and comfort of his employees, seems endless. Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. Can it fairly be said that the power of Congress to regulate interstate commerce extends to the prescription of any or all of these things? Is it not apparent that they are really and essentially related solely to the social welfare of the worker, and therefore remote from any regulation of commerce as such?111
The Court’s conclusion makes clear the constitutional standard it was applying: “This is neither a necessary nor an appropriate rule or regulation affecting the due fulfillment of the railroads’ duty to serve the public in interstate transportation.”112
The reason for the Court’s insistence that laws be proper as well as necessary was stated in the 1935 case of Schechter Poultry Corporation v. United States,113 which concerned the constitutionality of the National Recovery Act. The act authorized the president to approve “codes of fair competition” for a trade or industry upon application by one or more trade or industrial associations or groups. These codes became law without any additional action of Congress. In essence, the act encouraged the formation of legally enforced industry cartels.
The defendants, Joseph, Martin, Alex, and Aaron Schechter, operated a poultry slaughterhouse that purchased live poultry from suppliers in New York, and furnished live or slaughtered poultry to dealers and butchers selling directly to consumers. They sold no poultry to buyers in other states. The Schechters were convicted for several violations the “Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York.”114 They challenged the act as beyond Congress’s power to regulate commerce among the states.
In considering its constitutionality, the Court emphasized that the act did not merely foster cooperation among members of industry or immunize their cooperation from normal antitrust restrictions. Rather,
[i]t involves the coercive exercise of the law-making power. The codes of fair competition which the statute attempts to authorize are codes of laws. If valid, they place all persons within their reach under the obligation of positive law, binding equally those who assent and those who do not assent. Violations of the provisions of the codes are punishable as crimes.115
In other words, it enabled industry to promulgate codes that would legally restrict the liberty of its “members.”
The Court, without dissent, found the act unconstitutional both because it was an inappropriate delegation of legislative power from Congress to the president and private industry groups and because it inappropriately permitted the regulation of commerce wholly within a state. “Defendants held the poultry at their slaughterhouse markets for slaughter and local sale to retail dealers and butchers who in turn sold directly to consumers. Neither the slaughtering nor the sales by defendants were transactions in interstate commerce.”116 Nor did their actions “directly” affect interstate commerce either by injuring interstate commerce or by interfering with persons engaged in that commerce. As difficult as it was to draw a precise line between interstate and intrastate commerce, or between direct or indirect effects on interstate commerce, such line drawing is necessary if Congress is to be held within its constitutionally enumerated powers.
Responding to the argument that the act was made necessary by the “grave national crisis,” the court observed:
The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extra-constitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment,—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”117
Shocking indeed.
In Lochner and other such cases, the Progressive Era Supreme Court began to require proof that both federal and state legislatures restricting the retained liberties of the people were actually pursuing a legitimate purpose rather than merely purporting to do so. At the state level, an act must be within the police powers of a state, while at the national level it must be within an enumerated power. As Madison had urged, they began requiring of legislation a showing of actual means-end fit, rather than merely deferring to legislative judgment that measures were necessary to achieve a proper purpose. When judicial deference is based on trust and trust is eroded, increased scrutiny follows.
Yet these decisions came to be reviled, first by political progressives and populists, and most recently by judicial conservatives. Condemnation of Lochner has become de rigueur among law professors of nearly all stripes. One claim commonly made by progressives was that the Progressive Era Court was deviating from the original meaning of the Constitution.118 Later critics hailed the New Deal Court’s rejection of these doctrines as a “restoration” rather than a constitutional revolution. These positions have been effectively challenged by Howard Gillman119 and are also refuted by the evidence of original meaning presented here.
Be this as it may, the difference between the approach of Lochner and that which came later turns primarily on the choice among presumptions that one uses when assessing the constitutionality of statutes. Since the Constitution does not explicitly establish any presumption, this is largely a matter of constitutional construction. The question then becomes which construction is truer to the meaning of what the Constitution does say in a passage the Court has largely treated as lost: the Ninth Amendment.
1 U.S. Const, Art. I, § 10. The rest of the section adds these additional expressed restrictions:
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
2 32 U.S. 243 (1833).
3 U.S. Const., Art. IV.
4 Indeed, it was at this time that arguments based on original intent first became popular as a way of negating these creative textualist claims based on plain meaning made by abolitionists.
5 Congressional Globe, 39th Cong., 1st sess., 1089 (February 29, 1866).
6 Ibid., 1090.
7 Ibid. (emphasis added).
8 Ibid.
9 Ibid.
10 Ibid.
11 Those who argue that the Fourteenth Amendment was meant only to constitutionalize the Civil Rights Act—an overly restricted view of the amendment—are nonetheless conceding that the scope of rights it protects extends beyond those in the Bill of Rights given that the act clearly protected rights not enumerated in the first eight amendments.
12 Ibid., 2765.
13 Ibid. (emphasis added).
14 83 U.S. (16 Wall.) 36 (1873).
15 In those days before the creation of the Circuit Courts of Appeals, justices themselves “rode circuit” to hear appeals.
16 In what follows, I use “Privileges or Immunities Clause,” to refer to the clause in the Fourteenth Amendment. When I refer to “Privileges and Immunities Clause,” I mean the clause that appears in Article IV.
17 Live-Stock Dealers’ and Butchers’ Association v. Crescent City Live-Stock Landing and Slaughter-House Company, 15 F. Cas. 649, 652 (1870).
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 83 U.S. 36, 78.
23 Ibid.
24 Ibid.
25 Ibid.
26 Ibid.
27 Ibid., 79.
28 Ibid., 79–80 (quotation omitted).
29 Ibid., 96.
30 Ibid.
31 Ibid., 97.
32 Ibid.
33 Ibid., 98.
34 Ibid., 114 (emphasis added).
35 Ibid., 116 (emphasis added).
36 A proper law is one that either regulates rightful or prohibits wrongful behavior.
37 Because citizens may have more privileges than aliens, a law may treat them differently and still be proper under the Privileges or Immunities Clause—though citizens from other states are protected against discrimination within a state by the Privileges and Immunities Clause of Article IV. Nevertheless, all persons, whether or not they are citizens, have a right under the Due Process Clause to have otherwise proper laws applied to them with due process. In other words, if aliens are to be treated differently from citizens, it must be by a properly enacted law.
38 38 U.S. at 124.
39 Ibid.
40 See Kevin Newsom, “Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases,” Yale Law Journal 109 (2000): 643.
41 Ibid., 129.
42 Ibid., 130.
43 See Michael Kent Curtis, “The 1837 Killing of Elijah Lovejoy by an Anti-Abolition Mob: Free Speech, Mobs, Republican Government, and the Privileges of American Citizens,” UCLA Law Review 44 (1997): 1109.
44 Ford v. Jermon, 6 Phila. 6, 7 (Dist. Ct 1865). The suit concerned the specific performance of an actor. Plaintiff Ford was also the owner of the theater in which Lincoln was murdered.
45 See Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free Men: A History of the Civil War (Chicago: Open Court, 1996), 313–59.
46 Ibid., 349.
47 Pollack v. Farmers’ Loan and Trust Company, 157 U.S. 429 (1895).
48 See Todd Zywicki, “Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals,” Cleveland State Law Review 45 (1997): 165 (“The full story of the Seventeenth Amendment cannot be understood without examining the role of special interests seeking a more aggressive role by the federal government in passing legislation designed to redistribute wealth to those special interests”).
49 See James W. Ely, Jr., “The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process,” Constitutional Commentary 16 (1997): 319 (“It bears emphasis that the phrase ‘substantive due process’ is anachronistic when used to describe decisions rendered during the nineteenth and early twentieth centuries”).
50 Ibid., 327–45.
51 In addition to being a barrier against legislation that infringed everyone’s rights, the Privileges or Immunities Clause was also meant to bar laws that favored or discriminated against particular classes. In contrast, the original emphasis of the Equal Protection Clause was to impose a duty on the executive and judicial branches of state governments to apply and enforce, in an evenhanded manner, nondiscriminatory legislation. Just as the “absolute” protection from laws that violate privileges or immunities of all citizens was shifted to the Due Process Clause, the protection against laws that discriminated against a particular class of citizens was shifted to the Equal Protection Clause. While “substantive due process” protection of absolute rights declined after the Progressive Era (before its partial revival), the nondiscrimination function that had been shifted to the Equal Protection Clause has grown.
52 262 U.S. 390 (1923).
53 Ibid., 397–98.
54 Ibid., at 399.
55 Ibid.
56 Ibid., at 399–400.
57 Ibid., at 400.
58 Ibid., 401.
59 Ibid.
60 Ibid., 402.
61 268 U.S. 510 (1925).
62 Ibid., 534. The idea that an act must be “inherently harmful” to be justly prohibited—as opposed to regulated—under the “police power” of a state can be found in the writings of Christopher Tiedeman, which will be discussed in chapter 10.
63 Ibid.
64 Ibid., 535.
65 Ibid.
66 Ibid.
67 198 U.S. 45 (1905).
68 Ibid., 46 n. 1.
69 The statute read: “§ 110. Hours of labor in bakeries and confectionery establishments.—No employee shall be required or permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in any one week, or more than ten hours in any one day, unless for the purpose of making a shorter work day on the last day of the week; nor more hours in any one week than will make an average of ten hours per day for the number of days during such week in which such employee shall work” (ibid.).
70 198 U.S. at 53.
71 Ibid.
72 Ibid.
73 Ibid.
74 Ibid., 56.
75 Ibid.
76 Ibid.
77 Ibid.
78 Ibid., 56–57.
79 Ibid., 57.
80 Ibid.
81 Ibid., 57–58.
82 Ibid., 75. This, by the way, is a pragmatic objection to making exceptions to general principles in the first place. Someday someone like Holmes may argue that the presence of exceptions refutes the existence of a general rule. Then again, by ignoring the exceptional nature of exceptions, such an argument is obviously specious.
83 Ibid.
84 Congressional Globe, 39th Cong., 2d sess., 76 (December 12, 1866).
85 Ibid.
86 Lochner v. New York, 198 U.S., at 75.
87 Ibid., 76.
88 Ibid.
89 Ibid.
90 219 U.S. 104 (1911).
91 Ibid., 111.
92 219 U.S. 219 (1911)
93 See David Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Durham, N.C.: Duke University Press, 2001).
94 219 U.S. at 247.
95 198 U.S. at 65.
96 208 U.S. 161
97 Ibid., 174.
98 Ibid., 175.
99 198 U.S. at 68 (emphasis added).
100 261 U.S. 525 (1923).
101 Ibid., 546.
102 Ibid., 568.
103 See John W. Johnson, “Brandeis Brief,” in Hall et al., The Oxford Companion, 85.
104 208 U.S. 412. See ibid., 419 (“In the brief filed by Mr. Louis D. Brandeis, for the defendant in error, is a very copious collection of all these matters, an epitome of which is found in the margin”).
105 Ibid., 420 n. 1.
106 As we shall see in chapter 11, the Progressive Era Court extended the power to regulate commerce to the power to prohibit it as well. See discussion there of Champion v. Ames, 188 U.S. 321 (1903).
107 295 U.S. 330 (1935).
108 Ibid., 347–48.
109 Ibid., 362. In chapter 9, I will consider the proper interpretation of the Commerce Clause.
110 Ibid., 367.
111 Ibid., 368.
112 Ibid., 374 (emphasis added).
113 295 U.S. 495 (1935).
114 These included violation of the minimum wage and maximum hour provisions of the code, permitting retail dealers and butchers to make individual selections of birds rather than accept birds solely on the basis of their grade, sale to a butcher of an unfit chicken, failing to have the poultry inspected or approved in accordance with regulations or ordinances of the city of New York and making false reports or the failure to make reports relating to the range of daily prices and volume of sales for certain periods, and selling to slaughterers or dealers who were without licenses required by the city of New York.
115 Ibid., 529.
116 Ibid., 543.
117 Ibid., 528–29.
118 See, e.g., Walton H. Hamilton and Douglas Adair, The Power to Govern: The Constitution—Then and Now (New York: Norton, 1937).
119 See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993). Gillman contends that the Court was attempting to identify what the founders would have considered “class legislation,” which benefited a faction at the expense either of another class or of the general public. Although his analysis represents an important advance, he underplays the ongoing commitment to liberty, which is continuous with the tradition of natural rights that animated both the founders and those who wrote the Fourteenth Amendment. The fact that a bill was special interest or class legislation could be viewed as evidence that it infringed the rights of others.