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t —Sutherland—
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vice or idleness, . those, he
wrote, are nature’s failures.
“If they are not sufficiently
complete to live, they die, and
it is best that they should die.”
In 1897 the New York legisla
ture passed a law limiting the
weekly hours of work in baker
ies to sixty, not a very drastic
limitation in today’s terms,
a ten-hour day, Saturdays in
cluded! In 1905, by a five-to
four vote, the Supreme Court of
the 'United States in the noted
Lochner case found this law un
constitutional under the Four
teenth Amendment; it deprived
employer and employee of their
right to purchase or sell labor
as they pleased; the law thus
deprived them of their liberty
without due process of law. Jus
tice Peckham wrote for the ma
jority
“It is unfortunately true that
labor, even in any department,
may possibly carry with it
the seeds of unhealthiness. But
are we all, on that account,
at the mercy of legislative
majorities?”
Justices Harlan,. White, Day, and
Holmes dissented. Holmes wrote:
“This case is decided upon an
economic theory which a large
part of the country does not
entertain. . . . State laws may
regulate life in many ways
which we as legislators might
think as injudicious, or if you
like as tyrannical, as this, and
which, equally with this inter
ference with the liberty to con
tract. Sunday laws and usury
laws are ancient examples. A
more modem one is the prohi
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of the citizen ... is interfered
with by school laws, by the
Postoffice, by every State or
municipal institution which
takes his money for purposes
thought desirable whether he
likes it or not. The 14th Amend
ment does not enact Mr. Her
bert Spencer’s Social Statics.”
Hours-of-work laws existed in
New York before and after
Lochner. Holmes' words were
ironic; his mention of “Social
Statics" was not made to de
scribe the then system of Ameri
can constitutional limitations, but
to emphasize the opposite. I
suppose Spencer's book would
have been even more of a liter
ary and philosophical museum
piece than it now is, but for
Holmes’ mention-of it; and that
most men w'ho mention it would
never have heard of it but for
Holmes’ citation. I suspect that
a good many of the people who
quote Holmes’ opinion have never
read Spencer’s essay, but into
some of our popular intellectual
beliefs has grown the idea that
there was a time when the Su
preme Court accepted Spencer’s
dogma and built a wall effective
ly blocking the road to social
and economic well-being; this
we have sometimes believed and
said. The extent of error and
truth in this estimate I propose
briefly to examine.
Our national traditions a cen
tury ago were not those of ma
terial egalitarianism. The land
of opportunity had been a place
where an energetic, acquisitive
and sometimes ruthless man
could go out and get himself a
fortune. As late as a century
ago, most of the continent was
thinly peopled, and to many men
bred in old traditions it seemed
as though the west ought to be
there for the taking by the strong
and venturesome. That was the
way the country had been settled.
When Massachusetts in 17 8 8
granted to Oliver Phelps and Na
thaniel Gorham two million acres
of wild lands in Western New
York and they started doing a
land-office business selling town
lots, Phelps and Gorham were
not thinking of government as a
pervasive system of help for
small folk in their affairs of
daily life; as supervisor of the
number of strawberries sold in a
can of preserves; as the regu
lator of the retail price of a
bottle of milk, or as an agency
to decide how long a work-day
could be in a bakeshop. Gov
ernment, if you could cajole it,
would give you a grant of mil
lions of acres, or a monopoly to
run all the new-fangled steam
boats in a State, or a charter to
operate a bank and to make
money for signing the bank's
notes for circulation. Then Gov
ernment having thus granted a
charter, was to stand aside and
let a man run things to suit
himself,—unless of course the In
dians, or the British on the north
ern border, or the Dons in the
Spanish south and west, made
trouble beyond the abilities of
the neighbors to settle things
with their rifles. In that case
the enterpriser might ask the
government for troops!
The immense land deals by
which speculators had opened up
the western parts of New York,
Virginia and Georgia were over
by the end of the Civil War;
Lord Fairfax of Virginia and
General Gunn of Georgia, men of
large ideas and much progres
siveness, they were dead but
their souls went marching on.
The railroads were financed and
built by the spiritual descend
ants of Edward Livingston and
Robert Fulton, New York steam
boat monopolists of two genera
tions before. Arrangers of oil
combines, “coal barons,” steel
magnates, mining kings, they
showed a fine swagger, and along
with it a sense of mission that
sometimes reflected the pietism
of the day. God would not have
given them so much if they had
not deserved it! At the turn of
the 19th-20th century were torn
two ways, between the rising
self-consciousness of increasing
ly urgent and numerous groups,
—the farmers whose voices had
been heard in the Grange move
ment of the 1870’s and 1880 s; la
boring men, now heard respect
fully by political people; and. on
the other hand the proprietors,
the combiners, the shrewd 2nd
acquisitive, who sought a means
of delaying the change. But the
many had the votes; and they
passed an increasing list of regu
latory statutes in States and Na
tion, painful to the shocked and
slightly bewildered great pro
prietors, who for a time, with
sporadic success, took to the
federal courts to resist the al
teration in prospect. Some ac
count of this unequal combat is
worth recalling.
The history of governmental
control of the economy is an old
ooe. In New York the Duke’s
Laws of 1665-1675 interfered in
many ways with freedom of
contract (of which no one at
that time had even yet heard).
Price fixing during the Amer
ican Revolution came to nothing
because of inability of the gov
ernment of the United States to
enforce its will on uncooperative
States. In 1655 the New York
Legislature set up a Railroad
Commission, to start regulating
what was clearly going to be a
central element in the economy.
The story of constitutional in
tervention in all this only begins
after the Fourteenth Amend
ment took effect in 1868. A,
Louisiana legislature in 1869 de
creed that all slaughterirtg in
New Orleans should be done
at the establishment of the
Crescent City Live Stock Land
ing and Slaughter-House Com
pany; any butcher in town could
do his slaughtering there by pay
ing a fee, and submitting his
animals to inspection. In mod
ern aspect this was not an out
rageous arrangement. New Or
leans is a warm city; refrigera
tion was not efficient in 1866;
public inspection of the pro
cessing of highly perishable food
is now a commonplace. But of
fended butchers went all the way
to the Supreme Court to try to
invalidate the statute under the
Fourteenth Amendment. They
almost made it. By a five-to
four vote the Supreme Court re
jected the application of pro
testing butchers. Today one
would expect this same result
by a unanimous Court. The
Slaughter House opinion was
more notable than the result:
the majority so vehemently re
jected the disgruntled butchers'
contention that running their in
dependent slaughterhouses was
one of the “privileges and im
munities of citizens of the Unit
ed States,” guaranteed against
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State abridgement by the Four
teenth Amendment that the
“privileges and immunities
clause” has never been any use
since that time. The due-process
and equal protection clauses
then got even shorter shrift.
But about 1870 an agricultural
depression struck the country.
Untrammellied free enterprise
loses its attraction to men who
think their sorrows ore the fault
of the powerful and the wicked,
and who sense in their own po
litics! power the means of bring
ing back better days. A few
years before, farmers had be
gun to form local associations
called Granges; the “Grangers”
had gained much momentum. By
1874 there were over 26,000
Granges, mostly in the Mid West
and South. Each village had its
Grange Hall. Farmers drove to
town on Saturday night in dem
ocrat-wagons, enjoyed the pleas
ing, varied surprises of a "cov
ered-dish supper” provided by
their several wives; they weot
through the ritual of fraternal
brotherhood, and afterward talk
ed awhile of the inequities of
the elevator companies that stor
ed grain in Chicago; the rail
roads, whose Presidents wore
diamond stickpins in the luxury
of their private cars; and the
rich bankers who made loans to
honest farmers in hopeful times
and refused to extend them farm
ers’ notes in the years of the
locust.
The Township Granges had
representative bodies called State
Granges. State Granges had a
National Grange. By constitu
tion the Grange was non-political,
but conversations in the Grange
Halls could produce a certain
unanimity of view. Talk went
’round of the Granger Movement,
—and most of America was still
rural. In 1871 the Illinois legis
lature passed a statute fixing
the fees that grain elevators
could charge for storing farm
ers’ produce. Other States were
doing the like. There has since
been much dispute as to how
much influence the Grange had
in this legislation, but the Grange
got credit and blame for it, and
in 1877 the Supreme Court came
to pass on the constitutional val
idity of the Illinois elevator reg
ulation, and on legislatively fix
ed rates for railroads, passed by
the legislatures of Wisconsin,
lowa and Minnesota. This liti
gation was, by and large, the
Slaughter-House Case over again,
with due process of law more
emphasized. The Supreme Court
upheld all the statutes: its
opinions, coiiectiveiy caiied the
Granger Cases, could be read to
hold, broadly, that legislative
judgment would never be second
guessed by Courts when that
judgment concerned the rates to
be charged by railroad*, and ele
vators.
Clearly this line of reasoning
was bound to come to a stop
somewhere. A railroad or a stor
age company has ventured its
property in a given business. A
railroad is valuable only for rail
roading; nobody has use for a
grain elevator except for stor
ing grain. The Fifth Amendment
of 1791 forbade the United States
to take private property for pub
lic use without just compensa
tion; the Fourteenth Amendment
of 1868 forbade a State to deprive
any person of “property without
due process of law”. The Fifth
at least expressed a moral judg
ment and hinted a meaning tor
the Fourteenth; the Fourteenth
somehow suggested that there
ought to be limits to what a
State cast do to a man's proper
ty; and if a State forbade a man
to make a profit from the only
use that his property was good
for, the State took his property
away and gave it to the users.
This was an argument hard to
answer: the Supreme Court found
it unanswerable in 1890, and
found invalid a Minnesota statute
which purported to make a State
railroad rate, fixed by an ad
ministrative commission, im
mune from judicial scrutiny pass
ing on its fairness.
That all or most State and
federal economic regulation was
therefore held invalid would be
a gross misestimate. Some was
so held; and the instances of
invalidity shocked the contrary
minded observers more than the
adjudications of validity pleased
them. The Cultom Act, or Inter
state Commerce Act, of 1887,
which was ascribed rightly or
wrongly to Granger pressures,
was a federal statute intended
to surmount a Supreme Court
judgment of the year before,
which had held invalid State
rate regulation of that state's
segment of a several-State rail
road journey. Still in effect to
day, in greatly expanded form,
the Interstate Commerce Act
regulates, unchallenged, most of
the nation's carriage of passen
gers and goods. The Sherman
Anti-Trust Act of 1890 was ap
plied, a little timidly at first to
a society taught that competition
was successful. There was a lit
tle surprise in the idea that com
petition so effective that it oblig
ed the competitor to surrender,
to join what he could not heat,
was not only a civil wrong but
a serious crime. The Sugar
Trust Case of 1895 held that pur
chase by a holding trust of con
trolling shares of competing
corporations was not a violation
of tile Anti-Trust Act. When the
Supreme Court nine yean later
changed its mind about com
bines of controlling corporate
stock, and held in the Northern
Securities Case in an acquisition
of stock controlling two rail
roads that after all such an ar
rangement did come within the
Anti-Trust Act, Holmes, now an
Associate Justice of the Supreme
Court, wrote a dissent.
"Great cases, he wrote, like
hard cases make bad law. For
great casej are called great
not by reason of their real
importance in shaping the law
of the future but because of
some accident of immediate
overwhelming interest which
appeals to the feelings and
distorts the judgment ...
(The) mere fact of an indirect
effect upon commerce . , .
would not justify such a law
, . . Commerce depends upon
population, but Congress could
not, on that ground, under
take to regulate marriage and
divorce.”
One supposes, as I gather
Holmes supposed, that when the
draftsmen of the Commerce
Clause gave to the central gov
ernment competence to “regu
late Commerce . . . among the
several States”, they must have
in mind that then existed some
sort of Commerce other than
that “among the several States,”
not entrusted to the federal gov
ernment, some segment of the
national economy remaining en
trenched with the State powers.
But this idea of economic States-
Rights, immune from federal in
trusion, has, on the whole, been
declining since the Civil War.
It has been asserted politically
by those to whom national con
trol is unwelcome; but from
time to time there has been a
demand for sweeping national
change, and Theodore Roose
velt's "trust-busting” was a re
sponse to such a sentiment. Theo
dore Roosevelt was not uncon
scious of politics; he was a use
ful, timely President, but he
was not entirely detached in his
views; indeed it is not the busi
ness of a political leader tc be
detached. Tradition, that dubious
but attractive authority, had it
that Roosevelt, hearing of
Holme’s dissent in the Northern
Securities Case, said that he,
Roosevelt, could carve out of a
banana a judge with more back
bone than Holmes. Perhaps the
President, for the irritated mo
ment, overlooked the tact that
Holmes had no political inter
ests to serve, had no political
failures to fear, and had faced
fire equivalent to a number of
multiples of San Juan Hill.
The tide of federal regula
tion continued to roll in, while
judicial Canutes, by occasional
judgments of unconstitutionality,
did little but only a little, to for
bid the flow. In 1906 the Con
gress passed the Food and Drug
Act, now the Food, Drug, and
Cosmetic Act. Under this statute
the government has prescribed
“standards of identity,” descrip
tive formulas to the end that the
housewife may buy, not only
wholesome merchandise at a low
price, but also merchandise
whose contents she precisely un
derstands. And if one can grow
somewhat peevish at times con
sidering the detail of intervention
of government in what we buy
and what we eat one can con
sider that perhaps we have been
spared worse. Remember that
200 years ago that indrfatigable
country gentleman Mathew
Bramble wrote concerning Lon
don to his friend. Dr. Lewis, first
telling of wholesome life at
Brambleton-hall and then going
on
“Now, mark the contrast at
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London—l am pent up in frowsy
lodgings, where there is not
room enough to swing a cat;
... by five o'clock I start-tout
of bed in consequence of the
dreadful alarm made by the
country carts, and the* noisy
rustics bellowing, ‘green peas’
under my window. If I would
drink water, I must quaff the
maukish contents of an open
aquaduct,—this is the agree
able potation, extolled by the
Londoners as the finest water
in the universe. As to the in
toxicating potion, sold for wine,
it is a vile, unpalatable, and
pernicious sophistication balder
dashed with cidr, corn spirit,
and the juice of sloes . . . The
bread I eat in London, is a
deleterious paste, mixed up
with chalk color, alum, and
bone adies; insipid to the taste,
and destructive to the constitu
tion . . - The same monstrous
depravity appears in their veal,
which is leeched by repeated
bleedings, and other villainous
arts till there is not a drop of
of juice left in the body, and
the poor animal is paralytic
before he dies; so void of all
taste, nourishment, and savour,
that a man might dine as com-.
fortably on a white fricassee of
kid-skin gloves;—”
I think of this and am reconciled
to the Food and Drug Act.
In 1787 the draftsmen of the
Constitution had seen to it, they
thought, that the many in one
State would not utilize the new
federal government to get the
needed revenue from the rich
who might be concentrated in a
state with fewer votes. To this
end the draftsmen provided in
the first Article of the Constitu
tion that “direct” taxes must
rest on the several States ac
cording to the population of each
—not according to the wealth of
the taxpayers.
“direct Taxes should be appor
tioned among the several States
which may be included within
this Union, according to their
respective numbers, . .
In 1895 the Supreme Court held
a federal income tax invalid be
cause not apportioned among the
States according to population.
The capability of deriving in
come from property is somewhat
difficult to distinguish from the
ownership of the property itself;
and were it not for then current
popular emotions, for the social
policies, which the next year
made Bryan’s Cross of Gold
Speech so popular; were it not
for a wide spread impulse to
ward economic levelling, the Su
preme Court would have occa
sioned less surprise and indignant
reaction by holding the federal
income tax unconstitutional and
by observing’in its unanimous
opinion that the clause of the
Constitution in question was
“manifestly designed ... to pre
vent an attack upon accumulated
property by mere force of num
bers.” Eighteen years is not
such a long period; in eighteen
years the income tax case was
reversed by the Sixteenth Amend
ment. 1913 brought a number
of popular laws, but of the sev
eral pieces of “social legisla
tion” of those years, perhaps
that which in the long run has had
and will have the greatest effect
on American life was the 16th
Amendment. With all the battling
to and fro that had gone on over
the details of the federal income
tax, in the main, decade by dec
ade. it has increased; it has
tended more and more to econo
mic levelling, tended to prevent
the accumulation of the great
fortunes characteristic of indus
trially successful operators at
the turn of the century. This
effect has been supplemented by
state income taxation, and by
the steeply progressive rates of
inheritance taxation, which dis
courage (he handing on of great
estates. The United States, like
England, does things a little at
a time; we have not confiscated
private property, or at any rate
not very much. But the net ef
fect of federal and state income
and inheritance taxation has cer
tainly been to cut down the peaks
of accumulation by the most
successful and to furnish the
federal and State governments
more to distribute in one form
or another.
. The Federal Reserve Act of
1913 gave to the Federal Reserve
Board wide supervision over the
nation’s banking system. Char
acteristic of governmental dom
ination of our economy is suoh
procedure by somewhat indirset
means. Thus the Federal Re
serve Board, by contracting and
expanding the rediscount of bank
paper, exercises a large measure
of control over available credit,
and so over inflationary and de
flationary tendencies in the coun
try.
In 1914 the Federal Trade
Commission Act gave to the
Trade Commission, subject to re
view by the United States Courts,
the wide mission to prohibit “un
fair methods of competition” in
interstate commerce; in 1938 the
Congress extended this prohibi
tion to cover “unfair or decep
tive acts or practices” regard
less of their competitive qqality.
Federal Labor legislation had
hard going for a while in the
Supreme Court. In 1908 that
Court held outside the com
merce power an Act of Com
merce forbidding an interstate
carrier to discharge employees
if they ((joined a Union. In 1918
that Court held unconstitutional
a statute prohibiting the sale in
interstate commerce of the pro
ducts of child labor. In 1922 the
Supreme Court held unconstitu
tional an effort to accomplish
the same end by a taxation of
the produce of child labor. In
1923 the Court held unconstitu
tional a statute imposing mini
mum wages for women in the
District of Columbia. In the two
years 1935-1936 the Supreme
Court held invalid eight New-
Deal measures of various sorts.
But this procession all came to
an end in 1937 with National La
bor Relations JBoard v. Jones-
Laughlin Steel Company, which
upheld a wide system of federal
support for union activities. This
was fortified in 1941 when the
Supreme Court in United States
v. Darby Lumber Co. specific
ally overruled the Child Labor
Case of 1918 and upheld federal
legislation concerning hours,
wages and conditions of employ
ment in the manufacturing pro
cess. State price-fixing ceased
to be proscribed by the Four
teenth Amendment in 1934 when
the Supreme Court decided Neb
bia v. New York. The war of
1941-45 completed this century
of economic evolution. The Am
erican people, restless, more and
more impatient with what they
have considered the unfair op
eration of their economic struc
ture, have proceeded step by
step to subject it to their con
trol by political means.
If this had not come about
gradually, we should have bfsn
startled by it. If it had all jieen
sponsored by one party, opposed
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by another, we should have had
slogans, and name-calling,
much more than we have had.
The process of a century would
have been dramatized. Instead
we have quite completely altered
our way of providing for one an
other the things we want, almost
unconscious of the total. This
has been an excellent way to
bring about a profound change.
Little by little we have revolu
tionized our material system of
life, so avoiding the discomfort
of intellectual confrontation, so
going oil our way only half
aware of the progress, like peo
ple reading last month’s maga
zine on an airplane journey.
The frightening dimensions of
this metamorphosis in our ma
terial life become apparent so
soon as they have our critical
attention. The historian, the an
thropologist and even the pro
fessor of constitutional law can
learn much by rereading the
novels of Sarah Orne Jewett, or
bound volumes of Saint Nicholas
and the Youth’s Companion, such
as those already a little outdated
and dog-eared, which I found on
the shelves of my family library
when I reached the age of child
ish exploration for books. And
this is a useful discipline, be
cause if life has changed so
much in other things, has it
changed in less material mat
ters, changed with equal pro
fundity, and with equal inatten
tion? Are we in the midst of pro
found social change, haying ra
ther more to do with people and
rather less to do with thtags.
if indeed one can make that dis
tinction. Are such changes so
profound and so pervasive that
we, to some extent, fail to no
tice them as I suppose marine
creatures are unconscious of the
gulf stream’s current, and be
cause they are unaware of the
profundity universality of
social change around us because
it is so encompassingly obvious,
do we sometimes fall into per
sonal and constitutional error
because we take no account of
the change? Perhaps these Lec
tures do well to turn to some
consideration of our need for
education in the obvious.
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