by Peter Irons
Ira Munn refused to apply for a licence to operate his business and continued to charge more for grain storage than the law allowed. The state’s attorney general brought charges in 1872, and Munn’s company was fined $100 in country court after a brief trial in which both sides agreed on the facts. The Illinois supreme court upheld Munn’s conviction, and his appeal joined several other “Granger cases” that were pending in the Supreme Court. Before the Court decided these cases, corporate lawyers expressed optimism that it would strike down “this assault upon private property,” as one wrote in the prestigious American Law Review. He added that the Granger movement “was really directed, not against abuses, but against the rights of property.” This lawyer found it “perfectly clear that the Granger movement was rank communism.” The first Red Scare in America had begun, although midwestern farmers hardly resembled the industrial proletariat that Karl Marx called upon in his Communist Manifesto to overthrow the capitalist system.
Ira Munn declared bankruptey before his case reached the Supreme Court, but lawyers for the successor to Munn & Scott pursued the appeal of the company’s conviction. Their brief first argued that the grain storage business was part of the “stream” of interstate commerce and could only be regulated by Congress. Although the brief cited eleven Supreme Court decisions as precedent, the cases offered little support on this issue and the Court brushed the claim aside. The company’s lawyers placed more reliance on the Due Process Clause, claiming that the Illinois law deprived its owners of their “liberty” to engage in business free of “arbitrary” state regulation. Lacking any Supreme Court precedent, this section cited just three state court cases, but it pointed the justices to Judge Cooley’s Treatise on Constitutional Limitations for legal authority.
Ruling in March 1877, the Court turned down the invitation to read Cooley’s treatise into the Constitution, with seven justices voting to uphold the Illinois law as a “reasonable” regulation of a “virtual monopoly” of the grain storage business. Chief justice Morrison Waite, a former corporate and railroad lawyer, wrote for the Court and turned against his former clients. He reached back more than two centuries for support from Lord Matthew Hale, an eminent English jurist whose decisions, one American judge wrote, had so much force that judges looking for precedent “do not trouble themselves to search any further.” Wait cited Hale for the proposition that “when private property is affected with a public interest it ceases to be juris privati only” and becomes subject to “reasonable” state regulation. He translate Hale’s Latin phrase into simple English: “When private property is devoted to a public use, it is subject to public regulation.” The Illinois law came “within the meaning of the doctrine which Lord Hale has so forcibly stated,” Waite continued. The Chief Justice had one last word for the advocates of substantive due process: “For protection against abuses by legislatures, the people must resort to the polls, not to the Courts.”
The first—and most vehement—response to Waite came from Justice Stephen Field. The majority opinion was “subversive of the rights of private property, heretofore believed to be protected by constitutional guaranties against legislative interference,” Field complained. His dissenting opinion, joined by Justice William Strong, denied Waite’s claim that “private property held for a public use” became subject to state regulation. “If this be sound law,” Field wrote, “all property and all business in the State are held at the mercy of a majority, of its legislature.” The doctrine Field denounced was, in fact, “sound law” that went back, as Waite had noted, “as long ago as the third year of the reign of William and Mary.” American judges had followed Lord Male’s lead in hundreds of cases over the century before the Court decided Munn v. Illinois.
Waite’s opinion in the Munn case alarmed the advocates of substantive due process. One leading corporate lawyer, John N. Pomeroy, could barely contain his anger. “No other decision has ever been made in the course of our judicial history—not even excepting the notorious Dred Scott Case which threatens such disastrous consequences for the future welfare and prosperity of the country,” Pomeroy wrote in the American Law Review. He predicted that Waite’s opinion would be seized upon by “the demagogues who are conducting the agitation now going on throughout the country” and who pressed for “yet more communistic and destructive legislation” to restrain corporate monopolists.
Pomeroy’s alarmed prediction of renewed “agitation” for legislation to protect farmers and working people came true within months of the Munn decision. “In the year 1877,” Howard Zinn wrote in A People’s History of the United States, “the. country was in the depths of the Depression” that began with the Panic of 1873. Hunger and disease struck the urban poor with deadly force. The New York Times reported that “already the cry of dying children begins to be heard. . . . Soon, to judge from the past, there will be a thousand deaths of infants per week in the city.” During the summer of 1877, “there came a series of tumultuous strikes by railroad workers in a dozen cities; they shook the nation as no labor conflict in its history had done,” wrote Zinn. Deep cuts into already low wages ($1.75 per day for brakemen who worked twelve hours) prompted workers to bring the nation’s railroads to a screeching halt.
President Rutherford Hayes, heeding appeals from. J. P. Morgan, August Belmont, and other railroad magnates and bankers, sent federal troops to Baltimore, St. Louis, Chicago, and Pittsburgh. Pitched battles erupted between strikers and soldiers, with deadly results. In Pittsburgh, twenty-four people (including four soldiers) died in fighting around Union Depot; the day after police in Chicago shot and killed three strikers, Zinn recounts, “an armed crowd of five thousand fought the police. The police fired again and again, and when it was over, and the dead were counted, they were, as usual, workingmen and boys, eighteen of them, their skulls smashed by clubs, their vital organs pierced by gunfire.”
News of the railroad strikes reached Europe and impressed Karl Marx, who wrote to Friedrich Engels: “What do you think of the workers of the United States? This first explosion against the associated oligarchy of capital which has occurred since the Civil War will naturally again be suppressed, but can very well form the point of origin of an earnest workers’ party.” The Workingmen’s Party, formed in Chicago on July 4, 1876—the centennial of the Declaration of Independence—gained recruits from the strikers. “When the great railroad strikes of 1877 were over,” Zinn wrote, “a hundred people were dead, a thousand people had gone to jail, 100,000 workers had gone on strike, and the strikes had roused into action countless unemployed in the cities.”
The combined forces of federal troops, state militias, and local police finally beat down the railroad strikers. But their struggle continued through propaganda and insurgent politics. Henry George, a workingman and self-educated economist, published a book called Progress and Poverty in 1879, which argued that landownership was the basis of all wealth. His book sold millions of copies, and his proposal of a “single tax” on land gained millions of adherents. The Independent Labor Party drafted George to run for mayor of New York City in 1886. That year was marked by a wave of railroad strikes across the nation, which erupted into violence in Chicago’s Haymarket Square.
What became known as the Haymarket Affair grew out of labor’s campaign for laws to establish an eight-hour workday and was sparked by a strike by workers at the McCormick Harvester works in Chicago. On May 3, 1886, Chicago police fired into a crowd of strikers at the McCormick plant, wounding dozens and killing four. The next day, a detachment of 180 police tried to break up a protest rally in Haymarket Square; someone threw a bomb into the police ranks, wounding sixty-six officers, seven of whom later died. The bomb-thrower was never identified, but eight members of anarchist groups that organized the rally were charged with murder and sentenced to death; seven of them had not been in Haymarket Square and the eighth was speaking from the podium when the bomb exploded. The Supreme Court refused to hear appeals from the
convictions, and four of the anarchists were hung; a fifth blew his head off with dynamite in his cell, and the remaining three were later pardoned by Illinois governor Peter Altgeld after a storm of protest over the unfair trials.
The Haymarket Affair shook the nation and polarized the political system. Democrats and Republicans closed ranks behind calls for “law and order,” while labor candidates exploited public outrage over the executions and gained votes in local elections. The New York City campaign of Henry George caught national attention; in an election marked by fraud and bribery, he placed second behind the Tammany Hall Democrat and ran far ahead of the Wall Street Republican, Theodore Roosevelt. Although he lost the election, George won converts to his cause and sparked campaigns that persuaded legislators in several states to pass laws that limited working hours and regulated safety and health conditions in mines, factories, and the “sweatshops” in which workers toiled long hours for little pay.
It is no exaggeration to describe the battles of workers and employers of the 1870s and 1880s as class warfare, a struggle waged both in the streets and voting booths. Faced with assaults on their power and privilege, business leaders found a welcome haven in state and federal courtrooms, in which judges—most of whom came to the bench from corporate practice—became increasingly receptive to “substantive due process” claims. Beginning in 1885, a series of state court decisions struck down regulatory laws and elevated “liberty of contract” to constitutional primacy over the “police powers” of government.
One of the first state court rulings, and the most widely cited as precedent in later cases, struck down one of the “sweatshop” laws passed by the New York legislature in 1884. This statute prohibited the manufacture of cigars in tenement houses that contained living quarters. Its stated purpose was to protect the health and safety of cigar rollers who worked in their cramped apartments, most of which lacked adequate ventilation and fire escapes. A challenge to this law, in a case called In re Jacobs, confronted New York’s highest court with choosing between the state’s assertion of “police powers” and the “due process” claims of business owners. The state judges eagerly adopted the laissez-faire arguments of William Evarts, a disciple of Herbert Spencer and former United States attorney general who represented the cigar industry in the Jacobs case. In his opinion, Judge Robert Earl conceded the state’s power to protect its citizens’ health and safety, but he placed in judicial hands the power to examine the statute to “see whether it really relates to . . . the public health.” Without venturing from his Albany courtroom into Manhattan’s tenements, Earl could not see “how the cigarmaker is to be improved in his health or his morals by forcing him from his home and its hallowed associations and beneficent influences, to ply his trade elsewhere.” Without any mention of the evidence in the state’s brief, documenting the health and safety hazards of cigar rolling in tenements, Earl echoed the words of Herbert Spencer in writing of “the fierce competition of trade and the inexorable laws of supply and demand” and “the unceasing struggle for success and existence which pervades all societies of men.” Social Darwinism gained a judicial foothold in the Jacobs decision.
One legal historian looked at hundreds of later cases and found the Jacobs opinion cited “in practically every case where state power over individual liberty and property rights was challenged.” Its influence spread through the publication in 1886 of A Treatise on the Limitations of Police Power, written by Christopher G. Tiedeman, a law professor at the University of Missouri. His book was more a political tract than a legal treatise. “Socialism, Communism, and Anarchism are rampant throughout the civilized world,” Tiedeman warned. “The State is called on to protect the weak against the shrewdness of the stronger, to determine what wages a workman shall receive for his labor, and how many hours daily he shall labor.” Deploring the “extraordinary demands of the great army of discontents,” Tiedeman declared that “the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man, the absolutism of a democratic majority.” Even more extreme than Judge Cooley in his attack on the police powers doctrine, Tiedeman found a receptive audience in the bench and bar. When the second edition of his treatise appeared in 1900, he boasted that the first edition had been favorably cited in hundreds of cases decided in the fourteen years since its publication.
Despite the growing number of state-court decisions based on substantive due process claims, the Supreme Court refused to scrap the police powers doctrine. Ruling in 1887, ten years after its Munn decision, the Court upheld a Kansas law providing that “the manufacture and sale of intoxicating liquors shall be forever prohibited in this State.” Kansas was an early target of the “temperance” crusade led by Carrie Nation, a native Kansan, and the state legislature passed the prohibition law in 1881. The Saline County district attorney promptly charged Peter Mugler with violating the law by selling beer. Mugler was born in Germany and operated a brewery that quenched the thirst of the county’s German farmers and factory workers.
Justice John Marshall Harlan, who wrote for the Court in Mugler v. Kansas, rejected claims that the prohibition law deprived Peter Mugler of both “liberty” and “property” in violation of the Fourteenth Amendment. Harlan cited Munn to support the proposition that “society has the power to protect itself, by legislation, against the injurious consequences” of the liquor trade. Kansas could exercise its police powers in this area, and the Court would not second-guess the state’s lawmakers. But Harlan, perhaps without looking through it, opened the door to substantive due process just a crack. He first stated that the power to determine what laws are necessary to protect the public “is lodged with the legislative branch of the government.” Judges should defer to legislators in most cases, as the Court did in Mugler. Harlan was not willing, however, to hand a blank check to the states. “It does not at all follow,” he wrote, that every law “is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go.” Marking these constitutional limits was a job for judges. “They are at liberty—indeed, are under a solemn duty—to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority.” If a law purported to exercise a state’s police powers, Harlan wrote, but made “a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”
Three years later, Harlan’s colleagues accepted his invitation in Mugler to “look at the substance” of laws in a railroad regulation case, Chicago, Milwaukee & St. Paul Railway Company v. Minnesota. (It is worth noting that railroad cases dominated the Court’s docket during the last third of the nineteenth century, reflecting conflicts over the industry’s enormous power, both economic and political.) Ruling in 1890, the Court struck down a Minnesota law that established a commission to set “reasonable” rates for freight traffic. The law made the commission’s decisions final, with no recourse to judicial review. The majority opinion of Justice Samuel Blatchford in the Chicago, Milwaukee case pushed wide open the door Harlan had held ajar in Mugler. Deciding the “reasonableness” of rate charges, Blatchford wrote, “is eminently a question for judicial investigation, requiring due process of law for its determination.” The Minnesota railroad commission had conducted extensive hearings before setting “reasonable” rates, but the Supreme Court threw out its findings with no reference to the record.
Justice Joseph Bradley, a former railroad lawyer, wrote for the three dissenters in the Chicago, Milwaukee case. Joined by Justices Horace Gray and Lucius Lamar, Bradley complained that the Court’s decision “practically overrules Munn v. Illinois,” in which he had joined the opinion of Chief Justice Morrison Waite. Referring to the railroad cases decided along with Munn, Bradley reminded his colleagues that the “governing
principle of those cases was that the regulation” of fares and rates “is a legislative prerogative and not a judicial one.”
Responding to the Chicago, Milwaukee decision, Governor William Larrabee of Iowa warned that “further changes in the personnel of the Court” would increase the “danger of its deviating from the sound principles of law laid down” in the Munn case. His fears were confirmed after the deaths of justices Samuel Miller in 1890 and Joseph Bradley in 1892. President Benjamin Harrison, a pro-business Republican, picked their successors, Henry B. Brown and Greorge Shiras, Jr., from the ranks of corporate practice. Like most lawyers of that era, these new justices had been schooled by Judge Cooley and Professor Tiedeman in the doctrines of laissez-faire economics and substantive due process.
The same year the Court handed down the Chicago, Milwaukee decision, Congress passed the Sherman Antitrust Act, which reflected “populist” pressure to break up the giant monopolies that dominated the American economy. The Sherman Act made it illegal to from a “combination or conspiracy” to restrain trade in interstate or foreign commerce. Senator John Sherman, the act’s sponsor, warned his colleagues that failing to curb the monopolies would give ammunition to those who railed against their power. “You must heed their appeal or be ready for the socialist, the communist, the nihilist,” be said. “Society is now disturbed by forces never felt before.” The Sherman Act would play a role in two of the three major cases decided by the Court in 1895, cases whose outcomes illustrated just how well the justices had learned from Cooley and Tiedeman.
