Defending the lifeworld: Substantive due process in the Taft court era

Boston University Law Review

Volumn 78, Issue 5, 1998, Pages 1489-1545

  Post, Robert C ^a  

^a NONE

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EID: 0032237240     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (380)

1. 61 CONG. REC. 4-6 (1921) (Inaugural Address of Warren G. Harding).
2. Id. at 4, 5.
3. RICHARD L. WATSON, JR., THE DEVELOPMENT OF NATIONAL POWER: THE UNITED STATES, 1900-1919, at 219 (1976).
4. For representative discussions of wartime regulation, see generally ELLIS W. HAWLEY, THE GREAT WAR AND THE SEARCH FOR A MODERN ORDER, A HISTORY OF THE AMERICAN PEOPLE AND THEIR INSTITUTIONS 1917-1933 (1979); ROBERT HIGGS, CRISIS AND LEVIATHAN: CRITICAL EPISODES IN THE GROWTH OF AMERICAN GOVERNMENT 123-59 (1987); DAVID M. KENNEDY, OVER HERE: THE FIRST WORLD WAR AND AMERICAN SOCIETY 45-190 (1980); RONALD SCHAFFER, AMERICA IN THE GREAT WAR: THE RISE OF THE WAR WELFARE STATE 31-61 (1991); NEIL A. WYNN, FROM PROGRESSIVISM TO PROSPERITY: WORLD WAR I AND AMERICAN SOCIETY 65-85 (1986).
5. For representative discussions of wartime regulation, see generally ELLIS W. HAWLEY, THE GREAT WAR AND THE SEARCH FOR A MODERN ORDER, A HISTORY OF THE AMERICAN PEOPLE AND THEIR INSTITUTIONS 1917-1933 (1979); ROBERT HIGGS, CRISIS AND LEVIATHAN: CRITICAL EPISODES IN THE GROWTH OF AMERICAN GOVERNMENT 123-59 (1987); DAVID M. KENNEDY, OVER HERE: THE FIRST WORLD WAR AND AMERICAN SOCIETY 45-190 (1980); RONALD SCHAFFER, AMERICA IN THE GREAT WAR: THE RISE OF THE WAR WELFARE STATE 31-61 (1991); NEIL A. WYNN, FROM PROGRESSIVISM TO PROSPERITY: WORLD WAR I AND AMERICAN SOCIETY 65-85 (1986).
6. For representative discussions of wartime regulation, see generally ELLIS W. HAWLEY, THE GREAT WAR AND THE SEARCH FOR A MODERN ORDER, A HISTORY OF THE AMERICAN PEOPLE AND THEIR INSTITUTIONS 1917-1933 (1979); ROBERT HIGGS, CRISIS AND LEVIATHAN: CRITICAL EPISODES IN THE GROWTH OF AMERICAN GOVERNMENT 123-59 (1987); DAVID M. KENNEDY, OVER HERE: THE FIRST WORLD WAR AND AMERICAN SOCIETY 45-190 (1980); RONALD SCHAFFER, AMERICA IN THE GREAT WAR: THE RISE OF THE WAR WELFARE STATE 31-61 (1991); NEIL A. WYNN, FROM PROGRESSIVISM TO PROSPERITY: WORLD WAR I AND AMERICAN SOCIETY 65-85 (1986).
7. For representative discussions of wartime regulation, see generally ELLIS W. HAWLEY, THE GREAT WAR AND THE SEARCH FOR A MODERN ORDER, A HISTORY OF THE AMERICAN PEOPLE AND THEIR INSTITUTIONS 1917-1933 (1979); ROBERT HIGGS, CRISIS AND LEVIATHAN: CRITICAL EPISODES IN THE GROWTH OF AMERICAN GOVERNMENT 123-59 (1987); DAVID M. KENNEDY, OVER HERE: THE FIRST WORLD WAR AND AMERICAN SOCIETY 45-190 (1980); RONALD SCHAFFER, AMERICA IN THE GREAT WAR: THE RISE OF THE WAR WELFARE STATE 31-61 (1991); NEIL A. WYNN, FROM PROGRESSIVISM TO PROSPERITY: WORLD WAR I AND AMERICAN SOCIETY 65-85 (1986).
8. For representative discussions of wartime regulation, see generally ELLIS W. HAWLEY, THE GREAT WAR AND THE SEARCH FOR A MODERN ORDER, A HISTORY OF THE AMERICAN PEOPLE AND THEIR INSTITUTIONS 1917-1933 (1979); ROBERT HIGGS, CRISIS AND LEVIATHAN: CRITICAL EPISODES IN THE GROWTH OF AMERICAN GOVERNMENT 123-59 (1987); DAVID M. KENNEDY, OVER HERE: THE FIRST WORLD WAR AND AMERICAN SOCIETY 45-190 (1980); RONALD SCHAFFER, AMERICA IN THE GREAT WAR: THE RISE OF THE WAR WELFARE STATE 31-61 (1991); NEIL A. WYNN, FROM PROGRESSIVISM TO PROSPERITY: WORLD WAR I AND AMERICAN SOCIETY 65-85 (1986).
9. See William E. Leuchtenburg, The New Deal and the Analogue of War, in CHANGE AND CONTINUITY IN TWENTIETH-CENTURY AMERICA 81-143 (John Braeman, Robert H, Bremner & Everett Walters eds., 1964); see also Robert Cuff, Organizing for War: Canada and the United States During World War I, in THE CANADIAN HISTORICAL ASSOCIATION, HISTORICAL PAPERS 1969, at 141-56; OTIS L. GRAHAM JR., THE GREAT CAMPAIGNS: REFORM AND WAR IN AMERICA 1900-1928, at 97-111 (1971).
10. See William E. Leuchtenburg, The New Deal and the Analogue of War, in CHANGE AND CONTINUITY IN TWENTIETH-CENTURY AMERICA 81-143 (John Braeman, Robert H, Bremner & Everett Walters eds., 1964); see also Robert Cuff, Organizing for War: Canada and the United States During World War I, in THE CANADIAN HISTORICAL ASSOCIATION, HISTORICAL PAPERS 1969, at 141-56; OTIS L. GRAHAM JR., THE GREAT CAMPAIGNS: REFORM AND WAR IN AMERICA 1900-1928, at 97-111 (1971).
11. See William E. Leuchtenburg, The New Deal and the Analogue of War, in CHANGE AND CONTINUITY IN TWENTIETH-CENTURY AMERICA 81-143 (John Braeman, Robert H, Bremner & Everett Walters eds., 1964); see also Robert Cuff, Organizing for War: Canada and the United States During World War I, in THE CANADIAN HISTORICAL ASSOCIATION, HISTORICAL PAPERS 1969, at 141-56; OTIS L. GRAHAM JR., THE GREAT CAMPAIGNS: REFORM AND WAR IN AMERICA 1900-1928, at 97-111 (1971).
12. Editorial, Preparedness - A Trojan Horse, 5 NEW REPUBLIC 6, 6 (Nov. 6, 1915); see also Charles Merz, War as Pretext, 11 NEW REPUBLIC 129, 129-30 (June 2, 1917) ("Why should not war serve as a pretext to foist innovations upon the country?").
13. Editorial, Preparedness - A Trojan Horse, 5 NEW REPUBLIC 6, 6 (Nov. 6, 1915); see also Charles Merz, War as Pretext, 11 NEW REPUBLIC 129, 129-30 (June 2, 1917) ("Why should not war serve as a pretext to foist innovations upon the country?").
14. Editorial, Stabilizing Demand for Labor, 16 NEW REPUBLIC 125, 125-26 (Aug. 31, 1918).
15. GROSVENOR B. CLARKSON, INDUSTRIAL AMERICA IN THE WORLD WAR: THE STRATEGY BEHIND THE LINE 1917-1918, at 3-4 (1923).
16. Wilson, as Richard Hofstadter has written, "allowed his administration to close in a riot of reaction." RICHARD HOFSTADTER, THE AMERICAN POLITICAL TRADITION AND THE MEN WHO MADE IT 274 (1948). See generally BURT NOGGLE, INTO THE TWENTIES: THE UNITED STATES FROM ARMISTICE TO NORMALCY 1-213 (1974). A major exception was the steeply progressive income tax enacted during the war, which Harding immediately undertook to reduce. See ROBERT K. MURRAY, THE POLITICS OF NORMALCY: GOVERNMENTAL THEORY AND PRACTICE IN THE HARDING-COOLIDGE ERA 12, 46-48 (1973) (noting Harding's commitment to lowering private income taxes).
17. Wilson, as Richard Hofstadter has written, "allowed his administration to close in a riot of reaction." RICHARD HOFSTADTER, THE AMERICAN POLITICAL TRADITION AND THE MEN WHO MADE IT 274 (1948). See generally BURT NOGGLE, INTO THE TWENTIES: THE UNITED STATES FROM ARMISTICE TO NORMALCY 1-213 (1974). A major exception was the steeply progressive income tax enacted during the war, which Harding immediately undertook to reduce. See ROBERT K. MURRAY, THE POLITICS OF NORMALCY: GOVERNMENTAL THEORY AND PRACTICE IN THE HARDING-COOLIDGE ERA 12, 46-48 (1973) (noting Harding's commitment to lowering private income taxes).
18. Wilson, as Richard Hofstadter has written, "allowed his administration to close in a riot of reaction." RICHARD HOFSTADTER, THE AMERICAN POLITICAL TRADITION AND THE MEN WHO MADE IT 274 (1948). See generally BURT NOGGLE, INTO THE TWENTIES: THE UNITED STATES FROM ARMISTICE TO NORMALCY 1-213 (1974). A major exception was the steeply progressive income tax enacted during the war, which Harding immediately undertook to reduce. See ROBERT K. MURRAY, THE POLITICS OF NORMALCY: GOVERNMENTAL THEORY AND PRACTICE IN THE HARDING-COOLIDGE ERA 12, 46-48 (1973) (noting Harding's commitment to lowering private income taxes).
19. On the disintegration of prewar Progressivism, see Arthur S. Link, What Happened to the Progressive Movement in the 1920's, 64 AM. HIST. REV. 833 (1959).
20. Letter from George Sutherland to Hon. Arthur L. Thomas (Sept. 21, 1917) (Sutherland Papers). The Sutherland Papers are located at the Library of Congress.
21. Id. At the time Sutherland was in private practice. He added, "I have no doubt both legislative and executive powers are being exceeded in many particulars." Thomas had written Sutherland: "I fear, very much fear, that the day of reckoning is not far off. The old fashioned idea of a government of balanced powers is rapidly being displaced by the most absolute centralization of power the world has ever known, and this is happening in the Great American Republic." Letter from Arthur L. Thomas to George Sutherland (Sept. 10, 1917) (Sutherland Papers).
22. See Russell W. Galloway, Jr., The Taft Court (1921-29), 25 SANTA CLARA L. REV. 1, 3 (1985).
23. See id. at 4.
24. See CONGRESSIONAL QUARTERLY'S GUIDE TO THE U.S. SUPREME COURT 845 (Elder Witt ed., 2d ed. 1979).
25. See id.
26. See id. at 846.
27. See id. at 847.
28. See id. at 835 (Justice McKenna had been appointed by President McKinley in 1898).
29. See id. (Justice Holmes had been appointed by President Roosevelt in 1902).
30. See id. at 840 (Justice Van Devanter had been appointed by President Taft in 1911).
31. See id. at 842 (Justice McReynolds had been appointed by President Wilson in 1914).
32. See id. (Justice Brandeis had been appointed by President Wilson in 1916).
33. See ALEXANDER M. BICKEL & BENNO C. SCHMIDT, JR., 9 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE JUDICIARY AND RESPONSIBLE GOVERNMENT 1910-1921, at 4 (1984).
34. See CONGRESSIONAL QUARTERLY'S GUIDE TO THE U.S. SUPREME COURT, supra note 15, at 847.
35. BICKEL, supra note 24, at 4.
36. See Act of Dec. 23, 1914, Pub. L. No. 224, 38 Stat. 790 (1914) (empowering the United States Supreme Court to use a writ of certiorari to review judgments of the highest court of a state upholding a federal right). The purpose of the Act was to empower the Court to review state court decisions striking down progressive labor legislation. See, e.g., FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT: A STUDY IN THE FEDERAL JUDICIAL SYSTEM 188-98 (1927); Charles Warren, The Progressives of the United States Supreme Court, 13 COLUM. L. REV. 294, 296 (1913).
37. See Act of Dec. 23, 1914, Pub. L. No. 224, 38 Stat. 790 (1914) (empowering the United States Supreme Court to use a writ of certiorari to review judgments of the highest court of a state upholding a federal right). The purpose of the Act was to empower the Court to review state court decisions striking down progressive labor legislation. See, e.g., FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT: A STUDY IN THE FEDERAL JUDICIAL SYSTEM 188-98 (1927); Charles Warren, The Progressives of the United States Supreme Court, 13 COLUM. L. REV. 294, 296 (1913).
38. Editorial, Supreme Court and Interstate Commerce Commission, 69 NEW REPUBLIC 256, 256 (Jan. 20, 1932); see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 944 (1927) ("[I]n the six years since 1920 the Supreme Court has declared social and economic legislation unconstitutional under the due process clauses of either the Fifth or Fourteenth Amendment in more cases than in the entire fifty-two previous years during which the Fourteenth Amendment had been in effect.").
39. Editorial, Supreme Court and Interstate Commerce Commission, 69 NEW REPUBLIC 256, 256 (Jan. 20, 1932); see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 944 (1927) ("[I]n the six years since 1920 the Supreme Court has declared social and economic legislation unconstitutional under the due process clauses of either the Fifth or Fourteenth Amendment in more cases than in the entire fifty-two previous years during which the Fourteenth Amendment had been in effect.").
40. See Lochner v. New York, 198 U.S. 45, 64 (1905) (invalidating a New York statute restricting bakery employees to working no more than 60 hours per week).
41. Felix Frankfurter, The Supreme Court and the Public, 83 FORUM 329, 333 (1930). "The World War and its aftermath ushered in once again a period dominated by fears - the fear of change, the fear of new ideas - and these fears were written into the Constitution." Felix Frankfurter, The United States Supreme Court Molding the Constitution, 32 CURRENT HIST. 235, 239 (1930). For similar contemporaneous observations, see, e.g., Brown, supra note 28 (discussing the tendency of the Court since 1920 to declare social and economic legislation unconstitutional under the due process clause of the Fifth Amendment); Zechariah Chafee, Jr., Liberal Trends in the Supreme Court, 35 CURRENT HIST. 338, 338 (1931); Edward S. Corwin, Judicial Review, in 8 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 457-64 (Edward R.A. Seligman & Alvin Johnson eds., 1937);
42. Felix Frankfurter, The Supreme Court and the Public, 83 FORUM 329, 333 (1930). "The World War and its aftermath ushered in once again a period dominated by fears - the fear of change, the fear of new ideas - and these fears were written into the Constitution." Felix Frankfurter, The United States Supreme Court Molding the Constitution, 32 CURRENT HIST. 235, 239 (1930). For similar contemporaneous observations, see, e.g., Brown, supra note 28 (discussing the tendency of the Court since 1920 to declare social and economic legislation unconstitutional under the due process clause of the Fifth Amendment); Zechariah Chafee, Jr., Liberal Trends in the Supreme Court, 35 CURRENT HIST. 338, 338 (1931); Edward S. Corwin, Judicial Review, in 8 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 457-64 (Edward R.A. Seligman & Alvin Johnson eds., 1937);
43. Felix Frankfurter, The Supreme Court and the Public, 83 FORUM 329, 333 (1930). "The World War and its aftermath ushered in once again a period dominated by fears - the fear of change, the fear of new ideas - and these fears were written into the Constitution." Felix Frankfurter, The United States Supreme Court Molding the Constitution, 32 CURRENT HIST. 235, 239 (1930). For similar contemporaneous observations, see, e.g., Brown, supra note 28 (discussing the tendency of the Court since 1920 to declare social and economic legislation unconstitutional under the due process clause of the Fifth Amendment); Zechariah Chafee, Jr., Liberal Trends in the Supreme Court, 35 CURRENT HIST. 338, 338 (1931); Edward S. Corwin, Judicial Review, in 8 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 457-64 (Edward R.A. Seligman & Alvin Johnson eds., 1937);
44. Felix Frankfurter, The Supreme Court and the Public, 83 FORUM 329, 333 (1930). "The World War and its aftermath ushered in once again a period dominated by fears - the fear of change, the fear of new ideas - and these fears were written into the Constitution." Felix Frankfurter, The United States Supreme Court Molding the Constitution, 32 CURRENT HIST. 235, 239 (1930). For similar contemporaneous observations, see, e.g., Brown, supra note 28 (discussing the tendency of the Court since 1920 to declare social and economic legislation unconstitutional under the due process clause of the Fifth Amendment); Zechariah Chafee, Jr., Liberal Trends in the Supreme Court, 35 CURRENT HIST. 338, 338 (1931); Edward S. Corwin, Judicial Review, in 8 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 457-64 (Edward R.A. Seligman & Alvin Johnson eds., 1937);
45. Edward S. Corwin, Social Planning Under the Constitution, 26 AM. POL. SCI. REV. 1, 19 (1932).
46. For an example of a modern historian sensitive to this periodization, see RUSSELL GALLOWAY, THE RICH AND THE POOR IN SUPREME COURT HISTORY 1790-1982, at 101-31 (1982), who contrasts "The Not Quite Progressive Era (1906-1920)" with "The Second Age of Laissez Faire (1921-1937)." See also Galloway, supra note 13, at 1.
47. LOUIS B. BOUDIN, 2 GOVERNMENT BY JUDICIARY 474 (1932). On the cause of the "progressive phase," see Thomas Reed Powell, The Police Power in American Constitutional Law, 1 J. Soc. COMP. LEGIS. & INT'LL. 160, 171 (3d ser. 1919): The Bake Shop Case and the annulment of a workmen's compensation law by the New York Court of Appeals furnished munition for Mr. Roosevelt's demand in 1912 for the "recall of judicial decisions" - a device for taking direct appeals from the judiciary to the electorate on decisions annulling police measures. . . . As a campaign slogan it aroused wide popular interest . . . . The proposal shocked the conservative traditions of the American bar, but it is thought by many to have induced Courts to relax somewhat their censorship over novel police measures.
48. ERNEST SUTHERLAND BATES, THE STORY OF THE SUPREME COURT 264 (1936). For a contemporary statement of this periodization, see Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249, 254 (1987).
49. ERNEST SUTHERLAND BATES, THE STORY OF THE SUPREME COURT 264 (1936). For a contemporary statement of this periodization, see Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249, 254 (1987).
50. See, e.g., Mary Cornelia Porter, That Commerce Shall Be Free: A New Look at the Old Laissez-Faire Court, 1976 SUP. CT. REV. 135, 135-38.
51. Letter from Willis Van Devanter to J.H. Farley (Feb. 12, 1920) (Van Devanter Papers, Letterbook 31). The Van Devanter Papers are located at the Library of Congress.
52. Id.
53. Id.
54. Letter from Willis Van Devanter to John C. Pollock (Nov. 4, 1920) (Van Devanter Papers, Letterbook 31).
55. The judicial agenda implied by this program is made clear in the following anecdote, reported by federal District Judge George M. Bourquin: It is said that Chief Justice White admitted that "in my time we relaxed constitutional guarantees from fear of revolution," and that Chief Justice Taft declared that "at a conference I announced 'I have been appointed to reverse a few decisions,' and," with his famous chuckle, "I looked right at old man Holmes when I said it." What a pity were these illuminating incidents lost to history save in so far as the court's reports will verify them. Investors' Syndicate v. Porter, 52 F.2d 189, 196 (D. Mont. 1931) (Bourquin, J., dissenting).
56. Sutherland v. Mayer, 271 U.S. 272, 287 (1926).
57. 279 U.S. 253 (1929) .
58. Pub. L. No. 41, 40 Stat. 276 (1917) (authorizing the regulation of fuel due to economic conditions arising from the war).
59. Highland, 279 U.S. at 259. The federal government was to set prices based upon "the cost of production, including the expense of operation, maintenance, depreciation and depletion plus a just and reasonable profit." Id. Thus prices were not to be set lower than a producer could demand as just compensation were the coal to be seized through eminent domain. See id. at 260.
60. Id. at 261.
61. See id. at 262.
62. Id.
63. See id. ("The fixing of prices was calculated to serve the convenience of producers and dealers as well as of consumers of coal needed to carry on the war.").
64. 264 U.S. 543 (1924).
65. The story of Chastleton is well told in CHRISTOPHER N. MAY, IN THE NAME OF WAR: JUDICIAL REVIEW AND THE WAR POWERS SINCE 1918, at 223-53 (1989).
66. 256 U.S. 135 (1921).
67. Id. at 154. The Court simultaneously upheld rent control within New York City. See Marcus Brown Holding Co., Inc. v. Feldman, 256 U.S. 170, 199 (1921).
68. Block, 256 U.S. at 154-55. There was a strong dissent by Justice McKenna. McKenna, joined by Chief Justice White and Justices Van Devanter and McReynolds, complained that the decision relegated the Constitution to "an anachronism," an "'archeological relic' no longer to be an efficient factor in affairs but something only to engage and entertain the studies of antiquarians." Id. at 163. McKenna asked: Have conditions come, not only to the District of Columbia, embarrassing the Federal Government, but to the world as well, that are not amenable to passing palliatives, so that socialism, or some form of socialism, is the only permanent corrective or accommodation? It is indeed strange that this court, in effect, is called upon to make way for it and, through the instrument of a constitution based on personal rights and the purposeful encouragement of individual incentive and energy, to declare legal a power exerted for their destruction. Id. at 162-63. Two days after the opinion Holmes wrote to Frankfurter: "The best defence [sic] [of constitutional rights] I ever heard came from Brandeis many years ago - that constitutional restrictions enable a man to sleep at night and know that he won't be robbed before morning - which, in days of legislative activity and general scheming, otherwise he scarcely would feel secure about. I am afraid McKenna thinks that security at an end." Letter from Holmes to Frankfurter (Apr. 20, 1921), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934, at 110 (Robert M. Mennel & Christine L. Compston eds., 1996). It is clear, however, that even Holmes felt some discomfort with the extent of rent control authorized by congressional statute. Eighteen months later, for example, he would write that "The late decisions upon laws dealing with the congestion of Washington and New York, caused by the war, dealt with laws intended to meet a temporary emergency and providing for compensation determined to be reasonable by an impartial board. They went to the verge of the law." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922). In Block, Holmes had specifically stressed that "A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change." Block, 256 U.S. at 157. Nevertheless in March 1922, in a 6-3 opinion authored by Justice Clarke (with Justices McKenna, Van Devanter and McReynolds dissenting), the Court reaffirmed the constitutionality of rent control in the state of New York in a way that distinctly de-emphasized the relevance of emergency conditions to constitutional assessment. See Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 245 (1922). Clarke's statement of the justification for rent control barely mentioned the presumably temporary conditions caused by the War: The warrant for this legislative resort to the police power was the conviction on the part of the state legislators that there existed in the larger cities of the State a social emergency, caused by an insufficient supply of dwelling houses and apartments, so grave that it constituted a serious menace to the health, morality, comfort, and even to the peace of a large part of the people of the State. Id. at 245. Clarke's only concession to the temporary quality of the "emergency" justifying rent control was to note in passing the "notorious fact that a grave social problem has arisen from the insufficient supply of dwellings in all the large cities of this and other countries, resulting from the cessation of building activities incident to the war." Id. at 246.
69. Act of Aug. 24, 1921, Pub. L. No. 71, 42 Stat. 200 (1921) (extending rent control until May 22, 1922).
70. Act of May 22, 1922, 42 Stat. 5443 (1922) (extending rent control until May 22, 1924). Chastleton was decided on April 21, 1924.
71. Docket Book of Justice Butler 342 (1923). Justice Butler's docket book for the 1923 Term is available in the Archives at the United States Supreme Court.
72. Id.
73. Id.
74. Butler records that McReynolds "thinks the bill good and [should be] reversed." Id. Brandeis is recorded as having advocated a "short cut. Validity need not be answered" because of inadequate service to the parties. Id. Brandeis eventually adopted this position in his separate published opinion "concurring in part." See Chastleton Corp. v. Sinclair, 264 U.S. 543, 549 (1924).
75. Chastleton, 264 U.S. at 546.
76. Id. at 547-48.
77. Id. at 548.
78. Id.
79. Holmes Papers. The Holmes Papers are located at the Harvard Law School Library, Special Collections Department.
80. Justice McReynolds, for example, replied to Holmes' circulated draft: "I will not say no. But I should much prefer to have you say that facts within the knowledge of the court make it entirely clear that no emergency exists and the act is no longer in force. This will put an end to mischievous agitation now going on in Congress and clear the air." Id. (emphasis added). Similarly, Justice Sutherland wrote: "I voted to go further and reckon the Emergency to have passed on what we know. Perhaps it is better to dispose of the case as you have done, but I should like to hear what the brethren who voted as I did think about it." Id. In an analogous vein, Justice Van Devanter wrote Holmes that "I have read and reread your opinion in the rent case and am still inclined to take the view that we ought to end it now, but I have not had an opportunity to take it up with others who also had that view." Id.
81. Chastleton, 264 U.S. at 548-49 (emphasis added). Even this change, however, was not enough completely to satisfy McReynolds, who wrote to Holmes: "I will acquiesce in this if it is accepted all round. But I do think that if we held conditions [existing in] 1922 were such as to show no emergency the result would be better." Holmes Papers. Justice Butler responded, "Yes, I go along with the others. Would prefer to hold law invalid and have an end of it now." Id. Chastleton was decided on April 21, 1924, and, on the basis of the paragraph quoted in text, the Court of Appeals of the District of Columbia declared rent control unconstitutional as of May 2, 1924. See Peck v. Fink, 2 F.2d 912, 913 (D.C. Cir. 1924). The Court could not resist making the lesson of Chastleton explicit: "It of course is unnecessary for us to attempt to add to the reasoning of the Supreme Court, but we may say with propriety that, if the emergency in question is not at an end, then this legislation may be extended indefinitely, and that which was 'intended to meet a temporary emergency' may become permanent law." Id. at 913.
82. As Brandeis wrote to Frankfurter: "To fully appreciate the rent decision, recent Congressional record & files of Washington papers on proposed extension of law to 1926 must be considered." Letter from Louis Brandeis to Felix Frankfurter (Apr. 23, 1924), in 5 LETTERS OF LOUIS BRANDEIS 1921-1941: ELDER STATESMAN 126 (Melvin I. Urofsky & David W. Levy eds., 1978).
83. Remarkably, Congress did vote to extend rent control until May 22, 1925. See Act of May 17, 1924, Pub. L. No. 119, 43 Stat 120 (1974). The law, however, was judicially overturned. See MAY, supra note 48, at 244-53.
84. 65 CONG. REC. 7391-92 (1924) (statement of Fiorello LaGuardia).
85. 264 U.S. 504 (1924).
86. Id. at 511.
87. See Schmidinger v. Chicago, 226 U.S. 578, 589-90 (1913).
88. Jay Burns Baking Co., 264 U.S. at 517.
89. Id.
90. Butler wrote: "Undoubtedly, the police power of the State may be exerted to protect purchasers from imposition by sale of short weight loaves. . . . But a state may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them. . . . Constitutional protection having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers of bread against fraud by short weights and really tends to accomplish the purpose for which it was enacted." Id. at 513.
91. Id. at 515.
92. Id. at 516.
93. As one commentator accurately put it, Butler's opinion rests on "common experience." Oscar E. Monnig, Constitutional Law - Due Process - Statutes Establishing Standard Weights for Loaves of Bread, 3 TEX. L. REV. 447, 449 (1925).
94. See Jay Burns Baking Co., 264 U.S. at 520. Brandeis was joined by Justice Holmes, who commented that the dissent was "A-1. A sockdologer. I agree of course." Brandeis Papers. Brandeis later said to Frankfurter that the case "was really 5 to 4, but Van Devanter 'got busy,' in his personal way, talking & laboring with members of Court, finally led Sutherland & Sanford to suppress their dissents." Melvin I. Urofsky, The Brandeis-Frankfurter Conversations, 1985 SUP. CT. REV. 299, 328. Butler's docket book, however, indicates that Justices Brandeis, Holmes, Sutherland, and McKenna had voted in conference to affirm the constitutionality of the Nebraska statute. See Docket Book of Justice Butler, supra note 54, at 265. In the Brandeis Papers there is a note from McKenna to Brandeis, stating: "Disturbing doubts have come to me. I am struggling with them and frankly I don't know whether they go to the conclusions or to details and reasoning." Letter from McKenna to Brandeis (Brandeis Papers). The Brandeis Papers are located at the Harvard Law School Library, Special Collections Department.
95. Jay Burns Baking Co., 264 U.S. at 525. "The prohibition of excess weight is imposed in order to prevent a loaf of one standard size from being increased so much that it can readily be sold for a loaf of a larger standard size." Id. at 519.
96. George W. Goble, The Nebraska Bread Weight Case, 19 ILL. L. REV. 261, 266-67 (1924).
97. See Jay Burns Baking Co., 264 U.S. at 522 (Brandeis, J., dissenting).
98. Id. at 525.
99. Monnig, supra note 76, at 450.
100. Robert Cushman, Constitutional Law in 1923-1924, 19 AM. POL. SCI. REV. 51, 63 (1925). Brandeis himself wrote to Frankfurter that he regarded the opinion as "worse even than Lochner." Letter from Brandeis to Felix Frankfurter (Apr. 23, 1924), in 5 LETTERS OF LOUIS BRANDEIS, supra note 65, at 126. The opinion prompted Holmes to comment to Pollock that "The Fourteenth Amendment is a roguish thing." Letter from Oliver Wendell Holmes to Sir Frederick Pollock (May 11, 1924), in 2 HOLMES-POLLOCK LETTERS 136 (Mark DeWolfe ed., 1946).
101. See Lochner v. New York, 198 U.S. 45, 64 (1905) (invalidating a New York statute restricting bakery employees to working no more than 60 hours per week).
102. Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 616 (1908). A distinct, and somewhat inconsistent indictment of Lochnerism, is that it exemplified class bias. See, e.g., OWEN M. FISS, 8 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910, at 12-19 (1993). It would of course be an odd doctrine indeed that managed simultaneously to ignore "practical results" and yet also to transparently realize the material interests of a particular class. While we could read Jay Burns Baking Co. as serving the material interests of bakers (and manufacturers generally), in fact the opinion, with its fastidious distinction between minimum and maximum loaf weights, and with its focus on preserving a certain ("unwrapped") relationship between bakers and their customers, does not fit easily into any very simple narrative of class bias.
103. Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454, 457-58 (1909).
104. Thomas Reed Powell, The Work of the Supreme Court, 40 POL. SCI. Q. 71, 75 (Supp. 1925). Robert Cushman cited the opinion as an example of the "willingness of the court to form its own opinion with respect to the existence or nonexistence of the facts upon which the validity of the act must in the last analysis depend, and to adhere to that opinion in the face of the conflicting testimony of experts and the contrary opinion of the legislature." Robert Cushman, Constitutional Law in 1923-1924, 19 AM. POL. SCI. REV. 51, 63 (1925). A note in the Yale Law Journal observes that "the distinguishing characteristic between the majority opinion of the Court . . . and the minority . . . lies in the absence, in the majority opinion, of any extended discussion of the facts of scientific experience in the making and distribution of bread, and in the almost exclusive devotion of the minority opinion of Justice Brandeis to an exhaustive discussion of the scientific investigations of the federal and state governments and of experts . . . It is not necessary even to agree with the preponderant conclusion of the experts in order to believe that the Supreme Court made an error in substituting its own judgment as to policy or reasonableness or appropriateness of means to end for that of the legislature, sustained by the state court." Comment, State Police Legislation and the Supreme Court, 33 YALE L.J. 847, 848-49 (1924). In his dissent, Justice Brandeis fairly invited Butler's majority opinion to be characterized as both formal and arbitrary. Brandeis wrote that "[k]nowledge is essential to understanding; and understanding should precede judging. Sometimes, if we would guide by the light of reason, we must let our minds be bold. But, in this case, we have merely to acquaint ourselves with the art of breadmaking and the usages of the trade." Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 520 (1924) (Brandeis, J., dissenting). Brandeis branded the Court's second-guessing of legislative facts the "exercise of the powers of a super-legislature - not the performance of the constitutional function of judicial review." Id. at 534. For examples of the rich subsequent history of the phrase "super-legislature," see Nollan v. California Coastal Comm'n, 483 U.S. 825, 846 (1987) (Brennan, J., dissenting): Shea v. Louisiana, 470 U.S. 51, 62 (1985) (White J., dissenting): Paris Adult Theatre I v. Slaton, 413 U.S. 49, 64 (1973); San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 31 (1973); Shapiro v. Thompson, 394 U.S. 618, 661 (1969) (Harlan, J., dissenting); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); West Virginia v. State Bd. of Educ. v. Barnette, 319 U.S. 624, 648 (1943) (Frankfurter, J., dissenting).
105. Thomas Reed Powell, The Work of the Supreme Court, 40 POL. SCI. Q. 71, 75 (Supp. 1925). Robert Cushman cited the opinion as an example of the "willingness of the court to form its own opinion with respect to the existence or nonexistence of the facts upon which the validity of the act must in the last analysis depend, and to adhere to that opinion in the face of the conflicting testimony of experts and the contrary opinion of the legislature." Robert Cushman, Constitutional Law in 1923-1924, 19 AM. POL. SCI. REV. 51, 63 (1925). A note in the Yale Law Journal observes that "the distinguishing characteristic between the majority opinion of the Court . . . and the minority . . . lies in the absence, in the majority opinion, of any extended discussion of the facts of scientific experience in the making and distribution of bread, and in the almost exclusive devotion of the minority opinion of Justice Brandeis to an exhaustive discussion of the scientific investigations of the federal and state governments and of experts . . . It is not necessary even to agree with the preponderant conclusion of the experts in order to believe that the Supreme Court made an error in substituting its own judgment as to policy or reasonableness or appropriateness of means to end for that of the legislature, sustained by the state court." Comment, State Police Legislation and the Supreme Court, 33 YALE L.J. 847, 848-49 (1924). In his dissent, Justice Brandeis fairly invited Butler's majority opinion to be characterized as both formal and arbitrary. Brandeis wrote that "[k]nowledge is essential to understanding; and understanding should precede judging. Sometimes, if we would guide by the light of reason, we must let our minds be bold. But, in this case, we have merely to acquaint ourselves with the art of breadmaking and the usages of the trade." Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 520 (1924) (Brandeis, J., dissenting). Brandeis branded the Court's second-guessing of legislative facts the "exercise of the powers of a super-legislature - not the performance of the constitutional function of judicial review." Id. at 534. For examples of the rich subsequent history of the phrase "super-legislature," see Nollan v. California Coastal Comm'n, 483 U.S. 825, 846 (1987) (Brennan, J., dissenting): Shea v. Louisiana, 470 U.S. 51, 62 (1985) (White J., dissenting): Paris Adult Theatre I v. Slaton, 413 U.S. 49, 64 (1973); San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 31 (1973); Shapiro v. Thompson, 394 U.S. 618, 661 (1969) (Harlan, J., dissenting); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); West Virginia v. State Bd. of Educ. v. Barnette, 319 U.S. 624, 648 (1943) (Frankfurter, J., dissenting).
106. Thomas Reed Powell, The Work of the Supreme Court, 40 POL. SCI. Q. 71, 75 (Supp. 1925). Robert Cushman cited the opinion as an example of the "willingness of the court to form its own opinion with respect to the existence or nonexistence of the facts upon which the validity of the act must in the last analysis depend, and to adhere to that opinion in the face of the conflicting testimony of experts and the contrary opinion of the legislature." Robert Cushman, Constitutional Law in 1923-1924, 19 AM. POL. SCI. REV. 51, 63 (1925). A note in the Yale Law Journal observes that "the distinguishing characteristic between the majority opinion of the Court . . . and the minority . . . lies in the absence, in the majority opinion, of any extended discussion of the facts of scientific experience in the making and distribution of bread, and in the almost exclusive devotion of the minority opinion of Justice Brandeis to an exhaustive discussion of the scientific investigations of the federal and state governments and of experts . . . It is not necessary even to agree with the preponderant conclusion of the experts in order to believe that the Supreme Court made an error in substituting its own judgment as to policy or reasonableness or appropriateness of means to end for that of the legislature, sustained by the state court." Comment, State Police Legislation and the Supreme Court, 33 YALE L.J. 847, 848-49 (1924). In his dissent, Justice Brandeis fairly invited Butler's majority opinion to be characterized as both formal and arbitrary. Brandeis wrote that "[k]nowledge is essential to understanding; and understanding should precede judging. Sometimes, if we would guide by the light of reason, we must let our minds be bold. But, in this case, we have merely to acquaint ourselves with the art of breadmaking and the usages of the trade." Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 520 (1924) (Brandeis, J., dissenting). Brandeis branded the Court's second-guessing of legislative facts the "exercise of the powers of a super-legislature - not the performance of the constitutional function of judicial review." Id. at 534. For examples of the rich subsequent history of the phrase "super-legislature," see Nollan v. California Coastal Comm'n, 483 U.S. 825, 846 (1987) (Brennan, J., dissenting): Shea v. Louisiana, 470 U.S. 51, 62 (1985) (White J., dissenting): Paris Adult Theatre I v. Slaton, 413 U.S. 49, 64 (1973); San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 31 (1973); Shapiro v. Thompson, 394 U.S. 618, 661 (1969) (Harlan, J., dissenting); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); West Virginia v. State Bd. of Educ. v. Barnette, 319 U.S. 624, 648 (1943) (Frankfurter, J., dissenting).
107. Jay Burns Baking Co., 264 U.S. at 533 (Brandeis, J., dissenting).
108. Holmes Papers.
109. It is noteworthy in this regard that Felix Frankfurter's indictment of Lochner was that "[t]he majority opinion was based upon 'a common understanding' as to the effect of work in bakeshops upon the public and upon those engaged in it. 'Common understanding' has ceased to be the reliance in matters calling for essentially scientific determination." Felix Frankfurter, Hours of Labor and Realism in Constitutional Law, 29 HARV. L. REV. 353, 370 (1916).
110. JURGEN HABERMAS, 1 THEORY OF COMMUNICATIVE ACTION: REASON AND THE RATIONALIZATION OF SOCIETY 70 (Thomas McCarthy trans., 1984).
111. JURGEN HABERMAS, 2 THEORY OF COMMUNICATIVE ACTION: LIFEWORLD AND SYSTEM: A CRITIQUE OF FUNCTIONALIST REASON 367-70 (Thomas McCarthy trans., 1987).
112. 94 U.S. 113, 126 (1876). For a good discussion of the background of the case, see Harry N. Scheiber, The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts, 5 PERSP. AM. HIST. 329, 402 (1971).
113. For contemporaneous accounts of the doctrine, see Walton H. Hamilton, Affectation with Public Interest, 39 YALE L.J. 1089, 1089-1112 (1930) (discussing the history behind the phrase "affected with a public interest" and the Court's use of this doctrine as its guiding principle in cases of legislative price regulation); Breck P. McAllister, Lord Hale and Business Affected with a Public Interest, 43 HARV. L. REV. 759, 759-91 (1930) (same); Dexter Merriam Keezer, Some Questions Involved in the Application of the 'Public Interest' Doctrine, 25 MICH. L. REV. 596, 596-621 (1927) (searching for an economic pattern underlying the expansion of the "affected with a public interest" doctrine); Gustavus H. Robinson, The Public Utility: A Problem in Social Engineering, 14 CORNELL L.Q. 1, 1-27 (1928) (discussing what makes a business private or public under the doctrine); Gustavus H. Robinson, The Public Utility Concept in American Law, 41 HARV. L. REV. 277, 277-308 (1928) (same).
114. For contemporaneous accounts of the doctrine, see Walton H. Hamilton, Affectation with Public Interest, 39 YALE L.J. 1089, 1089-1112 (1930) (discussing the history behind the phrase "affected with a public interest" and the Court's use of this doctrine as its guiding principle in cases of legislative price regulation); Breck P. McAllister, Lord Hale and Business Affected with a Public Interest, 43 HARV. L. REV. 759, 759-91 (1930) (same); Dexter Merriam Keezer, Some Questions Involved in the Application of the 'Public Interest' Doctrine, 25 MICH. L. REV. 596, 596-621 (1927) (searching for an economic pattern underlying the expansion of the "affected with a public interest" doctrine); Gustavus H. Robinson, The Public Utility: A Problem in Social Engineering, 14 CORNELL L.Q. 1, 1-27 (1928) (discussing what makes a business private or public under the doctrine); Gustavus H. Robinson, The Public Utility Concept in American Law, 41 HARV. L. REV. 277, 277-308 (1928) (same).
115. For contemporaneous accounts of the doctrine, see Walton H. Hamilton, Affectation with Public Interest, 39 YALE L.J. 1089, 1089-1112 (1930) (discussing the history behind the phrase "affected with a public interest" and the Court's use of this doctrine as its guiding principle in cases of legislative price regulation); Breck P. McAllister, Lord Hale and Business Affected with a Public Interest, 43 HARV. L. REV. 759, 759-91 (1930) (same); Dexter Merriam Keezer, Some Questions Involved in the Application of the 'Public Interest' Doctrine, 25 MICH. L. REV. 596, 596-621 (1927) (searching for an economic pattern underlying the expansion of the "affected with a public interest" doctrine); Gustavus H. Robinson, The Public Utility: A Problem in Social Engineering, 14 CORNELL L.Q. 1, 1-27 (1928) (discussing what makes a business private or public under the doctrine); Gustavus H. Robinson, The Public Utility Concept in American Law, 41 HARV. L. REV. 277, 277-308 (1928) (same).
116. For contemporaneous accounts of the doctrine, see Walton H. Hamilton, Affectation with Public Interest, 39 YALE L.J. 1089, 1089-1112 (1930) (discussing the history behind the phrase "affected with a public interest" and the Court's use of this doctrine as its guiding principle in cases of legislative price regulation); Breck P. McAllister, Lord Hale and Business Affected with a Public Interest, 43 HARV. L. REV. 759, 759-91 (1930) (same); Dexter Merriam Keezer, Some Questions Involved in the Application of the 'Public Interest' Doctrine, 25 MICH. L. REV. 596, 596-621 (1927) (searching for an economic pattern underlying the expansion of the "affected with a public interest" doctrine); Gustavus H. Robinson, The Public Utility: A Problem in Social Engineering, 14 CORNELL L.Q. 1, 1-27 (1928) (discussing what makes a business private or public under the doctrine); Gustavus H. Robinson, The Public Utility Concept in American Law, 41 HARV. L. REV. 277, 277-308 (1928) (same).
117. For contemporaneous accounts of the doctrine, see Walton H. Hamilton, Affectation with Public Interest, 39 YALE L.J. 1089, 1089-1112 (1930) (discussing the history behind the phrase "affected with a public interest" and the Court's use of this doctrine as its guiding principle in cases of legislative price regulation); Breck P. McAllister, Lord Hale and Business Affected with a Public Interest, 43 HARV. L. REV. 759, 759-91 (1930) (same); Dexter Merriam Keezer, Some Questions Involved in the Application of the 'Public Interest' Doctrine, 25 MICH. L. REV. 596, 596-621 (1927) (searching for an economic pattern underlying the expansion of the "affected with a public interest" doctrine); Gustavus H. Robinson, The Public Utility: A Problem in Social Engineering, 14 CORNELL L.Q. 1, 1-27 (1928) (discussing what makes a business private or public under the doctrine); Gustavus H. Robinson, The Public Utility Concept in American Law, 41 HARV. L. REV. 277, 277-308 (1928) (same).
118. 233 U.S. 389 (1914).
119. Id. at 406. In a strong opinion for five members of the Court, Justice McKenna concluded: To the contention that the business is private we have opposed the conception of the public interest. We have shown that the business of insurance has very definite characteristics, with a reach of influence and consequence beyond and different from that of the ordinary businesses of the commercial world, to pursue which a greater liberty may be asserted. The transactions of the latter are independent and individual, terminating in their effect with the instances. The contracts of insurance may be said to be interdependent. They cannot be regarded singly, or isolatedly, and the effect of their relation is to create a fund of assurance and credit. Id. at 414 (emphasis added). Justice Lamar authored a powerful dissent, joined by Chief Justice White and Justice Van Devanter. See id. at 434.
120. See, e.g., Note, Price Regulation Under the Police Power, 19 MICH. L. REV. 74, 75-77 (1920). Recall that the Court had also held in April 1921 that wartime emergency conditions had temporarily clothed rental housing stock with a public interest sufficient to justify rent control. See Block v. Hirsh, 256 U.S. 135, 158 (1921); Marcus Brown Holding Co., Inc. v. Feldman, 256 U.S. 170, 199 (1921). In Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922), decided during the 1921 Term, Justice Clark had taken this holding to the verge of eviscerating the requirement of temporary wartime emergency conditions. See supra note 51 and accompanying text.
121. See CONGRESSIONAL QUARTERLY'S GUIDE TO THE U.S. SUPREME COURT, supra note 15, at 855-57.
122. Arthur L Haugan, Vicissitudes of the Price Fixing Doctrine, 2 DAKOTA L. REV. 430, 431 (1929); see also R. G. Tugwell, That Living Constitution, 55 NEW REPUBLIC 120, 120 (June 20, 1928) (noting a reversal in the trend of business regulation).
123. Arthur L Haugan, Vicissitudes of the Price Fixing Doctrine, 2 DAKOTA L. REV. 430, 431 (1929); see also R. G. Tugwell, That Living Constitution, 55 NEW REPUBLIC 120, 120 (June 20, 1928) (noting a reversal in the trend of business regulation).
124. 291 U.S. 502 (1934).
125. Barry Cushman, A Stream of Legal Consciousness: The Current Commerce Doctrine from Swift to Jones & Laughlin, 61 FORDHAM L. REV. 105, 130 (1992); see also Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891, 1919-22 (1994) (pronouncing the importance of the Nebbia case). But see Michael Ariens, A Thrice-Told Tale, Or Felix the Cat, 107 HARV. L. REV. 620, 642-43 (1994) (arguing that Nebbia did not announce a change in judicial philosophy).
126. Barry Cushman, A Stream of Legal Consciousness: The Current Commerce Doctrine from Swift to Jones & Laughlin, 61 FORDHAM L. REV. 105, 130 (1992); see also Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891, 1919-22 (1994) (pronouncing the importance of the Nebbia case). But see Michael Ariens, A Thrice-Told Tale, Or Felix the Cat, 107 HARV. L. REV. 620, 642-43 (1994) (arguing that Nebbia did not announce a change in judicial philosophy).
127. Barry Cushman, A Stream of Legal Consciousness: The Current Commerce Doctrine from Swift to Jones & Laughlin, 61 FORDHAM L. REV. 105, 130 (1992); see also Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891, 1919-22 (1994) (pronouncing the importance of the Nebbia case). But see Michael Ariens, A Thrice-Told Tale, Or Felix the Cat, 107 HARV. L. REV. 620, 642-43 (1994) (arguing that Nebbia did not announce a change in judicial philosophy).
128. See, e.g., Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 212 (1927) (upholding regulation of rates for towing logs); United States v. Berwind-White Coal Min. Co., 274 U.S. 564, 575-84 (1927) (upholding regulation of the distribution of railroad cars among bituminous coal mines); Merchants Mut. Auto. Liab. Ins. Co. v. Smart, 267 U.S. 126, 130 (1925) (upholding regulation of automobile insurance); Board of Trade v. Olsen, 262 U.S. 1, 40-41 (1923) (upholding regulation of the sale of grain for future delivery); National Union Fire Ins. Co. v. Wanberg, 260 U.S. 71, 74 (1922) (upholding regulation of hail insurance).
129. 263 U.S. 456 (1924).
130. See United States v. Abilene & S. Ry. Co., 265 U.S. 274, 284-85 (1924) ("[The Interstate Commerce] Commission may, in the public interest, take into consideration the financial needs of a weaker road.").
131. Dayton-Goose, 263 U.S. at 485; see also Akron, C. & Y. Ry. Co. v. United States, 261 U.S. 184, 191 (1923) (stating that the purpose of the recapture provisions was to raise the revenue needed for the maintenance of the nation's entire transportation system). See, e.g., Charles W. Bunn, The Recapture of Earnings Provisions of the Transportation Act, 32 YALE L.J. 213, 214-23 (1923);
132. Edward S. Joett, The Law of Railroad Rate-Making, 10 VA. L. REV. 618, 630 (1924) (stating that the ultimate end of the statute was securing an adequate transportation system for the county);
133. Samuel W. Moore, Railroad Rates and Revenues, 16 VA. L. REV. 243, 244 (1930) ("The commercial interests of the country were suffering from a lack of adequate transportation, due in part to the need of the carriers for additional revenue required for providing adequate service."). As the DETROIT NEWS pointed out: In spite of the successful roads' insistence on independence and privacy, it is becoming universally recognized that every railroad is part of a single great public highway system, just as streets are units in a city system. A railroad without connections would be comparable to a street without intersections or entrance or exit. The prosperity of a railroad depends on contact with other railroads, and it is fair that the paying road assist the weaker connecting line which assures its prosperity.
134. The recapture clause is one incident along the road toward a working out of these truths in practice. Quoted in To Make Strong Roads Aid the Weak, 80 LITERARY DIG. 14 (1924).
135. Powell, supra note 87, at 77. THE NEW REPUBLIC viewed Dayton-Goose as "a most important contribution to economic liberalism" because "there can no longer be any question, after this decision, that the power to regulate public utility rates is essentially and fundamentally the power to delimit the right of private property in public utility enterprises." Editorial, The Supreme Court on Economic Surplus, 37 NEW REPUBLIC 216, 216 (Jan. 23, 1924).
136. Editorial, Impotent Federalism, 55 NEW REPUBLIC 110, 110-11 (June 20, 1928).
137. Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 L. & HIST. REV. 293, 298 (1985).
138. 262 U.S. 522 (1923). For an excellent discussion of the remarkable facts surrounding the case, see James Gray Pope, Labor's Constitution of Freedom, 106 YALE L.J. 941, 1023-24 (1997).
139. The complete statute is reproduced in State v. Howat, 198 P. 686, 705-10 (Kan. 1921). For good discussions of the historical background of the unusual Kansas court, see DOMENICO GAGLIARDO, THE KANSAS INDUSTRIAL COURT: AN EXPERIMENT IN COMPULSORY ARBITRATION (1941); National Industrial Conference Board, The Kansas Court of Industrial Relations, Research Report No. 67 (New York 1924); Bureau of Labor Statistics, United States Department of Labor, Bulletin of the United States Bureau of Labor Statistics No. 322, Kansas Court of Industrial Relations (Apr. 1923). The Kansas Court produced several decisions in the United States Supreme Court. See Dorchy v. Kansas, 272 U.S. 306 (1926); Wolff Packing Co. v. Court of Indus. Relations, 267 U.S. 552 (1925); Howat v. Kansas, 258 U.S. 181 (1922).
140. See, e.g., Wolff Packing Co. v. Court of Indus. Relations, 267 U.S. 552, 564-65 (1925) (arguing that the Kansas statute establishes mandatory arbitration by dispensing with the usual consent of the parties); Howat v. Kansas, 258 U.S. 181, 184 (1922) (remarking that the Kansas Act effectively "provides for compulsory arbitration between labor and capital in certain industries and employment").
141. See Henry J. Allen, A Substitute for Strikes, SATURDAY EVENING POST, Mar. 6, 1920, at 6-7 (recounting the coal strike in Kansas after World War I that gave rise to the court of industrial relations).
142. See HOMER E. SOCOLOFSKY, KANSAS GOVERNORS 152-55 (1990); May Day in Kansas, 125 OUTLOOK 58, 58 (May 12, 1920).
143. See HOMER E. SOCOLOFSKY, KANSAS GOVERNORS 152-55 (1990); May Day in Kansas, 125 OUTLOOK 58, 58 (May 12, 1920).
144. According to Allen, the court of industrial relations was not "for the general regulation of business, of capital, or of labor, but for the protection of the public in an emergency when the processes of production are threatened and all efforts at conciliation have been exhausted. The law adds to the provisions of the second industrial conference: when that fails then the law takes hold." Quoted in P.F. Walker, A Year of the Kansas Industrial Court, 1 MGMT EFFICIENCY 171, 174 (Sept. 1921).
145. See Henry J. Allen, Speech at the Annual Banquet of the League for Industrial Rights, in The Annual Banquet of the League, 2 LAW & LAB. 82, 85 (Apr. 1920); Henry J. Allen, Liberty and Law in Kansas, 61 AM. REV. OF REVS. 597, 597 (June 1920) (recalling that volunteers were brought in to operate the mines during the strike).
146. See Henry J. Allen, Speech at the Annual Banquet of the League for Industrial Rights, in The Annual Banquet of the League, 2 LAW & LAB. 82, 85 (Apr. 1920); Henry J. Allen, Liberty and Law in Kansas, 61 AM. REV. OF REVS. 597, 597 (June 1920) (recalling that volunteers were brought in to operate the mines during the strike).
147. See Edna Osborne Whitcomb, Governor Allen's Solution: How Kansas Undertakes to Abolish Industrial Strife, 61 AM. REV. OF REVS. 292, 292 (Mar. 1920) ("Governor Allen determined to deal with the problem of strikes and other labor troubles by legislation."); Ray Yarnell, Speaking of Anti-Strike Laws, 8 NATION'S BUS. 16, 17 (Mar. 1920).
148. See Edna Osborne Whitcomb, Governor Allen's Solution: How Kansas Undertakes to Abolish Industrial Strife, 61 AM. REV. OF REVS. 292, 292 (Mar. 1920) ("Governor Allen determined to deal with the problem of strikes and other labor troubles by legislation."); Ray Yarnell, Speaking of Anti-Strike Laws, 8 NATION'S BUS. 16, 17 (Mar. 1920).
149. Editorial, Arbitration - Compulsory or Voluntary? 22 NEW REPUBLIC 396, 397 (May 26, 1920).
150. See, e.g., Willard Atkins, The Kansas Court of Industrial Relations, J. OF POL. ECON. 339, 339 (1920); John A. Fitch, Government Coercion in Labor Disputes, 90 ANNALS OF AM. ACAD. OF POL. & SOC. SCI. 74, 74-77 (July 1920). Even as early as 1918, writers like Thorstein Veblen were advocating that "the derangement of conditions caused by the war, as well as the degree in which the public attention now centres on public questions, mark the present as the appointed time to take stock and adopt any necessary change in the domestic policy." Thorstein Veblen, A Policy of Reconstruction, 14 NEW REPUBLIC 318, 318 (Apr. 13, 1918). Veblen advocated public control over industrial disputes, because, "seen from the point of view of the interest of the community," private rights in property and in the right to strike "figure up to something that may be called a right to exercise an unlimited sabotage, in order to gain a private end, regardless of the community's urgent need of having the work go on without interruption and at full capacity."
151. See, e.g., Willard Atkins, The Kansas Court of Industrial Relations, J. OF POL. ECON. 339, 339 (1920); John A. Fitch, Government Coercion in Labor Disputes, 90 ANNALS OF AM. ACAD. OF POL. & SOC. SCI. 74, 74-77 (July 1920). Even as early as 1918, writers like Thorstein Veblen were advocating that "the derangement of conditions caused by the war, as well as the degree in which the public attention now centres on public questions, mark the present as the appointed time to take stock and adopt any necessary change in the domestic policy." Thorstein Veblen, A Policy of Reconstruction, 14 NEW REPUBLIC 318, 318 (Apr. 13, 1918). Veblen advocated public control over industrial disputes, because, "seen from the point of view of the interest of the community," private rights in property and in the right to strike "figure up to something that may be called a right to exercise an unlimited sabotage, in order to gain a private end, regardless of the community's urgent need of having the work go on without interruption and at full capacity."
152. See, e.g., Willard Atkins, The Kansas Court of Industrial Relations, J. OF POL. ECON. 339, 339 (1920); John A. Fitch, Government Coercion in Labor Disputes, 90 ANNALS OF AM. ACAD. OF POL. & SOC. SCI. 74, 74-77 (July 1920). Even as early as 1918, writers like Thorstein Veblen were advocating that "the derangement of conditions caused by the war, as well as the degree in which the public attention now centres on public questions, mark the present as the appointed time to take stock and adopt any necessary change in the domestic policy." Thorstein Veblen, A Policy of Reconstruction, 14 NEW REPUBLIC 318, 318 (Apr. 13, 1918). Veblen advocated public control over industrial disputes, because, "seen from the point of view of the interest of the community," private rights in property and in the right to strike "figure up to something that may be called a right to exercise an unlimited sabotage, in order to gain a private end, regardless of the community's urgent need of having the work go on without interruption and at full capacity."
153. Id. at 319. For a similar view, see Walter Lippman, Unrest, 20 NEW REPUBLIC 315, 315-22 (Nov. 12, 1919).
154. Although the Kansas Industrial Court had "the distinction of being opposed by both capital and labor," William Allen White, Industrial Justice - Not Peace, NATION'S BUS. 14 (May 1922), it nevertheless struck a chord of intense national interest.
155. See John A. Fitch, Industrial Peace by Law - The Kansas Wage, 44 SURVEY 7 (Apr. 3, 1920). As the ST. LOUIS DAILY GLOBE-DEMOCRAT observed, "Perhaps no industrial legislation in recent years has attracted as much public attention as the Kansas creating an industrial court."
156. Editorial, The Industrial Court Decision, ST. LOUIS DAILY GLOBE-DEMOCRAT, June 13, 1923, § II, at 14. Analogous legislation was "introduced in State after State."
157. Editorial, Courts of Industrial Injustice, 110 NATION 416 (Apr. 3, 1920);
158. see also K.H. Condit, The Kansas Industrial Court, 53 AM. MACHINIST 749, 752 (Oct. 21, 1920);
159. John A. Fitch, Shall Strikes Become Crimes: The "Industrial Court" Movement and What It Means, 11 LAB. AGE 2 (Mar. 1922);
160. Gompers Sees Labor Defying Court Law: Warns That an Industrial Relations Act Here Will Not Be Obeyed, N.Y. TIMES, Jan. 6, 1922, at 19;
161. Editorial, Industrial Relations Courts, N.Y. TIMES, June 14, 1921, at 14;
162. Labor Opposing Anti-Strike Bill: Illinois Measure to Prohibit "Unwarranted Industrial Warfare" Would, It Is Alleged, Do Away with Trade Unions, CHRISTIAN SCI. MONITOR, Mar. 23, 1921, at 5;
163. Manufacturers in 21 States Seek Industrial Court Law, N.Y. CALL, Feb. 20, 1921, at 2;
164. Glen E. Plumb, Plumb Dissects Oklahoma Industrial Court Bill; It Is Similar to Labor Laws Proposed for Several States, LABOR, Feb. 5, 1921, at 21:
165. Editorial, The Public and the Strike, N.Y. TIMES, Feb. 9, 1922, at 16;
166. REPORT OF THE PROCEEDINGS OF THE FORTIETH ANNUAL CONVENTION OF THE AMERICAN FEDERATION OF LABOR 90, 262, 264-65, 378-83 (1920);
167. State Control of Strikes, 108 INDEP. & WKLY. REV. 192 (Feb. 25, 1922);
168. Harry Tipner, Labor Courts Do Not Solve Problem, 46 AUTOMOTIVE INDUSTRIES 629, 629 (Mar. 16, 1922) ("There are pending in ten states bills modeled along the lines of the Kansas law for the establishment of industrial courts with the expectation of eliminating strikes."). Even Harding in his Annual Message of Dec. 6, 1921, declared that "In an industrial society such as ours the strike, the lockout, and the boycott are as much out of place and as disastrous in their results as is war or armed revolution in the domain of politics. The same disposition to reasonableness, . . . the same provision of fair and recognized tribunals and processes, ought to make it possible to solve the one set of questions as easily as the other."
169. THE STATE OF THE UNION MESSAGES OF THE PRESIDENTS, 1790-1966, at 2625 (Fred L. Israel ed., 1967).
170. Cf. A National Court for Labor, 64 LITERARY DIG. 14, 14 (Jan. 10, 1920).
171. See also A.H. Rodrick, Again-The Kansas Industrial Court, FACTORY, 418-19 (Apr. 1922).
172. For a discussion of these various proposals, see Legislative Attacks on Trade Unions, REPORT OF THE PROCEEDINGS OF THE FORTY-SECOND ANNUAL CONVENTION OF THE AMERICAN FEDERATION OF LABOR 51-57 (1922).
173. Allen energetically promoted the idea of the Court, and at one time Allen was even considered a presidential possibility because of it. See Fitch, Industrial Peace, supra;
174. Frank P. Walsh, Henry Allen's Industrial Court, 110 NATION 755 (June 5, 1920) ("The one big campaign card of Governor Allen as a candidate for the Presidency is the passage of his Kansas Industrial Court Bill last January."). Indeed Brandeis wrote in his note marking his concurrence in Taft's opinion striking down the Kansas Court that "this will clarify thought and bury the ashes of a sometime presidential boom." Taft Papers, Reel 639. The Taft Papers are located at the Library of Congress.
175. The Court of Industrial Relations, 61 AM. REV. OF REVS. 294, 294 (Mar. 1920). The metaphor of "industrial war," William Allen White, supra note 118, at 14, was quite prevalent in contemporary discussions of the Kansas Court, so much so that the Kansas statute could be termed a "war against war," William Leavitt Stoddard, Industrial Courts, Collectives Agreements, or What? 4 ADMINISTRATION 261, 268 (Sept. 1922), and the NEW YORK TIMES could refer to the statute as "legislation born in the stress of war." Industrial Relations Courts, N.Y. TIMES, June 12, 1921, at 14. See Walter Gordon Merritt, SOCIAL CONTROL OF INDUSTRIAL WARFARE (League for Industrial Rights, n.d.). Allen himself argued: The Kansas court of industrial relations is founded upon the principle that government should have the same power to protect society against the ruthless offenses of an industrial strife that it has always had to protect against recognized crime. . . . It was time . . . when a tribunal should be established having the power to take under its jurisdiction the offenses committed against society in the name of industrial warfare. . . . . . . . It is of the utmost importance that we should waken to the fact that the battle is not alone between employer and employee. It is between government and those class-minded organizations which seek to supplant it. Henry J. Allen, How Kansas Broke a Strike and Would Solve the Labor Problem, 68 CURRENT OPINION 472, 474-77 (Apr. 1920); Allen, supra note 115, at 600-01 (discussing the rule of the Kansas Court of Industrial Relations in fighting industrial welfare). Sometimes the characteristics of industrial strife justifying public intervention were described not in terms of "war" but in terms of "a free-for-all exemplification of the Darwinian doctrine of the survival of the fittest." Ben Hooper, Peaceful Settlement of Differences Between Carriers and Employees, 2 STATION AGENT 19, 21 (Feb. 1922).
176. The Court of Industrial Relations, 61 AM. REV. OF REVS. 294, 294 (Mar. 1920). The metaphor of "industrial war," William Allen White, supra note 118, at 14, was quite prevalent in contemporary discussions of the Kansas Court, so much so that the Kansas statute could be termed a "war against war," William Leavitt Stoddard, Industrial Courts, Collectives Agreements, or What? 4 ADMINISTRATION 261, 268 (Sept. 1922), and the NEW YORK TIMES could refer to the statute as "legislation born in the stress of war." Industrial Relations Courts, N.Y. TIMES, June 12, 1921, at 14. See Walter Gordon Merritt, SOCIAL CONTROL OF INDUSTRIAL WARFARE (League for Industrial Rights, n.d.). Allen himself argued: The Kansas court of industrial relations is founded upon the principle that government should have the same power to protect society against the ruthless offenses of an industrial strife that it has always had to protect against recognized crime. . . . It was time . . . when a tribunal should be established having the power to take under its jurisdiction the offenses committed against society in the name of industrial warfare. . . . . . . . It is of the utmost importance that we should waken to the fact that the battle is not alone between employer and employee. It is between government and those class-minded organizations which seek to supplant it. Henry J. Allen, How Kansas Broke a Strike and Would Solve the Labor Problem, 68 CURRENT OPINION 472, 474-77 (Apr. 1920); Allen, supra note 115, at 600-01 (discussing the rule of the Kansas Court of Industrial Relations in fighting industrial welfare). Sometimes the characteristics of industrial strife justifying public intervention were described not in terms of "war" but in terms of "a free-for-all exemplification of the Darwinian doctrine of the survival of the fittest." Ben Hooper, Peaceful Settlement of Differences Between Carriers and Employees, 2 STATION AGENT 19, 21 (Feb. 1922).
177. The Court of Industrial Relations, 61 AM. REV. OF REVS. 294, 294 (Mar. 1920). The metaphor of "industrial war," William Allen White, supra note 118, at 14, was quite prevalent in contemporary discussions of the Kansas Court, so much so that the Kansas statute could be termed a "war against war," William Leavitt Stoddard, Industrial Courts, Collectives Agreements, or What? 4 ADMINISTRATION 261, 268 (Sept. 1922), and the NEW YORK TIMES could refer to the statute as "legislation born in the stress of war." Industrial Relations Courts, N.Y. TIMES, June 12, 1921, at 14. See Walter Gordon Merritt, SOCIAL CONTROL OF INDUSTRIAL WARFARE (League for Industrial Rights, n.d.). Allen himself argued: The Kansas court of industrial relations is founded upon the principle that government should have the same power to protect society against the ruthless offenses of an industrial strife that it has always had to protect against recognized crime. . . . It was time . . . when a tribunal should be established having the power to take under its jurisdiction the offenses committed against society in the name of industrial warfare. . . . . . . . It is of the utmost importance that we should waken to the fact that the battle is not alone between employer and employee. It is between government and those class-minded organizations which seek to supplant it. Henry J. Allen, How Kansas Broke a Strike and Would Solve the Labor Problem, 68 CURRENT OPINION 472, 474-77 (Apr. 1920); Allen, supra note 115, at 600-01 (discussing the rule of the Kansas Court of Industrial Relations in fighting industrial welfare). Sometimes the characteristics of industrial strife justifying public intervention were described not in terms of "war" but in terms of "a free-for-all exemplification of the Darwinian doctrine of the survival of the fittest." Ben Hooper, Peaceful Settlement of Differences Between Carriers and Employees, 2 STATION AGENT 19, 21 (Feb. 1922).
178. The Court of Industrial Relations, 61 AM. REV. OF REVS. 294, 294 (Mar. 1920). The metaphor of "industrial war," William Allen White, supra note 118, at 14, was quite prevalent in contemporary discussions of the Kansas Court, so much so that the Kansas statute could be termed a "war against war," William Leavitt Stoddard, Industrial Courts, Collectives Agreements, or What? 4 ADMINISTRATION 261, 268 (Sept. 1922), and the NEW YORK TIMES could refer to the statute as "legislation born in the stress of war." Industrial Relations Courts, N.Y. TIMES, June 12, 1921, at 14. See Walter Gordon Merritt, SOCIAL CONTROL OF INDUSTRIAL WARFARE (League for Industrial Rights, n.d.). Allen himself argued: The Kansas court of industrial relations is founded upon the principle that government should have the same power to protect society against the ruthless offenses of an industrial strife that it has always had to protect against recognized crime. . . . It was time . . . when a tribunal should be established having the power to take under its jurisdiction the offenses committed against society in the name of industrial warfare. . . . . . . . It is of the utmost importance that we should waken to the fact that the battle is not alone between employer and employee. It is between government and those class-minded organizations which seek to supplant it. Henry J. Allen, How Kansas Broke a Strike and Would Solve the Labor Problem, 68 CURRENT OPINION 472, 474-77 (Apr. 1920); Allen, supra note 115, at 600-01 (discussing the rule of the Kansas Court of Industrial Relations in fighting industrial welfare). Sometimes the characteristics of industrial strife justifying public intervention were described not in terms of "war" but in terms of "a free-for-all exemplification of the Darwinian doctrine of the survival of the fittest." Ben Hooper, Peaceful Settlement of Differences Between Carriers and Employees, 2 STATION AGENT 19, 21 (Feb. 1922).
179. The Court of Industrial Relations, 61 AM. REV. OF REVS. 294, 294 (Mar. 1920). The metaphor of "industrial war," William Allen White, supra note 118, at 14, was quite prevalent in contemporary discussions of the Kansas Court, so much so that the Kansas statute could be termed a "war against war," William Leavitt Stoddard, Industrial Courts, Collectives Agreements, or What? 4 ADMINISTRATION 261, 268 (Sept. 1922), and the NEW YORK TIMES could refer to the statute as "legislation born in the stress of war." Industrial Relations Courts, N.Y. TIMES, June 12, 1921, at 14. See Walter Gordon Merritt, SOCIAL CONTROL OF INDUSTRIAL WARFARE (League for Industrial Rights, n.d.). Allen himself argued: The Kansas court of industrial relations is founded upon the principle that government should have the same power to protect society against the ruthless offenses of an industrial strife that it has always had to protect against recognized crime. . . . It was time . . . when a tribunal should be established having the power to take under its jurisdiction the offenses committed against society in the name of industrial warfare. . . . . . . . It is of the utmost importance that we should waken to the fact that the battle is not alone between employer and employee. It is between government and those class-minded organizations which seek to supplant it. Henry J. Allen, How Kansas Broke a Strike and Would Solve the Labor Problem, 68 CURRENT OPINION 472, 474-77 (Apr. 1920); Allen, supra note 115, at 600-01 (discussing the rule of the Kansas Court of Industrial Relations in fighting industrial welfare). Sometimes the characteristics of industrial strife justifying public intervention were described not in terms of "war" but in terms of "a free-for-all exemplification of the Darwinian doctrine of the survival of the fittest." Ben Hooper, Peaceful Settlement of Differences Between Carriers and Employees, 2 STATION AGENT 19, 21 (Feb. 1922).
180. The Court of Industrial Relations, 61 AM. REV. OF REVS. 294, 294 (Mar. 1920). The metaphor of "industrial war," William Allen White, supra note 118, at 14, was quite prevalent in contemporary discussions of the Kansas Court, so much so that the Kansas statute could be termed a "war against war," William Leavitt Stoddard, Industrial Courts, Collectives Agreements, or What? 4 ADMINISTRATION 261, 268 (Sept. 1922), and the NEW YORK TIMES could refer to the statute as "legislation born in the stress of war." Industrial Relations Courts, N.Y. TIMES, June 12, 1921, at 14. See Walter Gordon Merritt, SOCIAL CONTROL OF INDUSTRIAL WARFARE (League for Industrial Rights, n.d.). Allen himself argued: The Kansas court of industrial relations is founded upon the principle that government should have the same power to protect society against the ruthless offenses of an industrial strife that it has always had to protect against recognized crime. . . . It was time . . . when a tribunal should be established having the power to take under its jurisdiction the offenses committed against society in the name of industrial warfare. . . . . . . . It is of the utmost importance that we should waken to the fact that the battle is not alone between employer and employee. It is between government and those class-minded organizations which seek to supplant it. Henry J. Allen, How Kansas Broke a Strike and Would Solve the Labor Problem, 68 CURRENT OPINION 472, 474-77 (Apr. 1920); Allen, supra note 115, at 600-01 (discussing the rule of the Kansas Court of Industrial Relations in fighting industrial welfare). Sometimes the characteristics of industrial strife justifying public intervention were described not in terms of "war" but in terms of "a free-for-all exemplification of the Darwinian doctrine of the survival of the fittest." Ben Hooper, Peaceful Settlement of Differences Between Carriers and Employees, 2 STATION AGENT 19, 21 (Feb. 1922).
181. DEBATE BETWEEN SAMUEL GOMPERS AND HENRY J. ALLEN AT CARNEGIE HALL MAY 28, 1920, at 9 (New York: E.P. Dutton & Co. 1920).
182. Id. at 37-38. The question sparked a huge literature. See, e.g., Ralph M. Easley, Is the Labor Problem Unsolvable? 5 NAT'L CIVIC FED'N REV. 1 (July 10, 1920); J.B. Gardiner, Labor - the New Tyrant, 67 FORUM 396, 400 (May 1922); The Industrial Court, N. Y. TIMES, Feb. 18, 1921, at 10. Gompers eventually responded to Allen's question by arguing that there was no public wholly separate and apart from employers and employees. See HENRY J. ALLEN, THE PARTY OF THE THIRD PART: THE STORY OF THE KANSAS INDUSTRIAL RELATIONS COURT 114-16 (1921). For an example of the discomfort of progressives who were both opposed to the anti-strike provisions of the Kansas statute and who believed in the prerogatives of the public, see Editorial, The Kansas Challenge to Unionism, 27 NEW REPUBLIC 3, 4 (June 1, 1921) ("Are we to accept the thesis of the extreme defenders of trade unionism methods that the interest of the public is in the long run identical with the interest of labor, and that therefore the public ought to bear with good grace the inconveniences and sufferings incident to the labor struggle?").
183. Id. at 37-38. The question sparked a huge literature. See, e.g., Ralph M. Easley, Is the Labor Problem Unsolvable? 5 NAT'L CIVIC FED'N REV. 1 (July 10, 1920); J.B. Gardiner, Labor - the New Tyrant, 67 FORUM 396, 400 (May 1922); The Industrial Court, N. Y. TIMES, Feb. 18, 1921, at 10. Gompers eventually responded to Allen's question by arguing that there was no public wholly separate and apart from employers and employees. See HENRY J. ALLEN, THE PARTY OF THE THIRD PART: THE STORY OF THE KANSAS INDUSTRIAL RELATIONS COURT 114-16 (1921). For an example of the discomfort of progressives who were both opposed to the anti-strike provisions of the Kansas statute and who believed in the prerogatives of the public, see Editorial, The Kansas Challenge to Unionism, 27 NEW REPUBLIC 3, 4 (June 1, 1921) ("Are we to accept the thesis of the extreme defenders of trade unionism methods that the interest of the public is in the long run identical with the interest of labor, and that therefore the public ought to bear with good grace the inconveniences and sufferings incident to the labor struggle?").
184. Id. at 37-38. The question sparked a huge literature. See, e.g., Ralph M. Easley, Is the Labor Problem Unsolvable? 5 NAT'L CIVIC FED'N REV. 1 (July 10, 1920); J.B. Gardiner, Labor - the New Tyrant, 67 FORUM 396, 400 (May 1922); The Industrial Court, N. Y. TIMES, Feb. 18, 1921, at 10. Gompers eventually responded to Allen's question by arguing that there was no public wholly separate and apart from employers and employees. See HENRY J. ALLEN, THE PARTY OF THE THIRD PART: THE STORY OF THE KANSAS INDUSTRIAL RELATIONS COURT 114-16 (1921). For an example of the discomfort of progressives who were both opposed to the anti-strike provisions of the Kansas statute and who believed in the prerogatives of the public, see Editorial, The Kansas Challenge to Unionism, 27 NEW REPUBLIC 3, 4 (June 1, 1921) ("Are we to accept the thesis of the extreme defenders of trade unionism methods that the interest of the public is in the long run identical with the interest of labor, and that therefore the public ought to bear with good grace the inconveniences and sufferings incident to the labor struggle?").
185. Id. at 37-38. The question sparked a huge literature. See, e.g., Ralph M. Easley, Is the Labor Problem Unsolvable? 5 NAT'L CIVIC FED'N REV. 1 (July 10, 1920); J.B. Gardiner, Labor - the New Tyrant, 67 FORUM 396, 400 (May 1922); The Industrial Court, N. Y. TIMES, Feb. 18, 1921, at 10. Gompers eventually responded to Allen's question by arguing that there was no public wholly separate and apart from employers and employees. See HENRY J. ALLEN, THE PARTY OF THE THIRD PART: THE STORY OF THE KANSAS INDUSTRIAL RELATIONS COURT 114-16 (1921). For an example of the discomfort of progressives who were both opposed to the anti-strike provisions of the Kansas statute and who believed in the prerogatives of the public, see Editorial, The Kansas Challenge to Unionism, 27 NEW REPUBLIC 3, 4 (June 1, 1921) ("Are we to accept the thesis of the extreme defenders of trade unionism methods that the interest of the public is in the long run identical with the interest of labor, and that therefore the public ought to bear with good grace the inconveniences and sufferings incident to the labor struggle?").
186. Id. at 37-38. The question sparked a huge literature. See, e.g., Ralph M. Easley, Is the Labor Problem Unsolvable? 5 NAT'L CIVIC FED'N REV. 1 (July 10, 1920); J.B. Gardiner, Labor - the New Tyrant, 67 FORUM 396, 400 (May 1922); The Industrial Court, N. Y. TIMES, Feb. 18, 1921, at 10. Gompers eventually responded to Allen's question by arguing that there was no public wholly separate and apart from employers and employees. See HENRY J. ALLEN, THE PARTY OF THE THIRD PART: THE STORY OF THE KANSAS INDUSTRIAL RELATIONS COURT 114-16 (1921). For an example of the discomfort of progressives who were both opposed to the anti-strike provisions of the Kansas statute and who believed in the prerogatives of the public, see Editorial, The Kansas Challenge to Unionism, 27 NEW REPUBLIC 3, 4 (June 1, 1921) ("Are we to accept the thesis of the extreme defenders of trade unionism methods that the interest of the public is in the long run identical with the interest of labor, and that therefore the public ought to bear with good grace the inconveniences and sufferings incident to the labor struggle?").
187. For early and prescient evidence of this discomfort, see Walter Lippmann, Can the Strike Be Abandoned? 21 NEW REPUBLIC 224, 224 (Jan. 21, 1920) (recognizing the tension between the positions of labor and of the public).
188. See generally WALTER LIPPMANN, DRIFT AND MASTERY (1914); John Spargo, The Public in Industrial Warfare, 103 INDEPENDENT 173 (Aug. 14, 1920). Henry Allen put it this way: "We stand at this hour to give evidence that no class under government shall live above the law." Allen, How Kansas Settles Its Labor Disputes, 6 World Outlook no. 8, at 39 (Aug. 1920).
189. See generally WALTER LIPPMANN, DRIFT AND MASTERY (1914); John Spargo, The Public in Industrial Warfare, 103 INDEPENDENT 173 (Aug. 14, 1920). Henry Allen put it this way: "We stand at this hour to give evidence that no class under government shall live above the law." Allen, How Kansas Settles Its Labor Disputes, 6 World Outlook no. 8, at 39 (Aug. 1920).
190. See generally WALTER LIPPMANN, DRIFT AND MASTERY (1914); John Spargo, The Public in Industrial Warfare, 103 INDEPENDENT 173 (Aug. 14, 1920). Henry Allen put it this way: "We stand at this hour to give evidence that no class under government shall live above the law." Allen, How Kansas Settles Its Labor Disputes, 6 World Outlook no. 8, at 39 (Aug. 1920).
191. State v. Howat, 198 P. 686, 705 (Kan. 1921).
192. Id. at 701.
193. In an editorial THE PROVIDENCE JOURNAL stressed the "exceptional importance" of the Wolff Packing decision, noting that "it comes at a time when the general tendency has been too strongly in the direction of interferences by State and national authority with private industry, and its effect may be to modify that tendency very materially. " Editorial, The Kansas Industrial Court, PROVIDENCE J., June 14, 1923, § II, at 16; see also Editorial, In the Kansas Case, PHILA. PUB. LEDGER, June 13, 1923, at 10 ("The opinion calls a sharp halt on the efforts of legislators, State and national, who for a generation have been steadily encroaching upon the rights of the individual in attempts to regulate business and industry in 'the public interest.' The Nation had come to a place where a line had to be drawn as nearly as possible between what is undoubtedly the 'public interest' and what is not.").
194. In an editorial THE PROVIDENCE JOURNAL stressed the "exceptional importance" of the Wolff Packing decision, noting that "it comes at a time when the general tendency has been too strongly in the direction of interferences by State and national authority with private industry, and its effect may be to modify that tendency very materially. " Editorial, The Kansas Industrial Court, PROVIDENCE J., June 14, 1923, § II, at 16; see also Editorial, In the Kansas Case, PHILA. PUB. LEDGER, June 13, 1923, at 10 ("The opinion calls a sharp halt on the efforts of legislators, State and national, who for a generation have been steadily encroaching upon the rights of the individual in attempts to regulate business and industry in 'the public interest.' The Nation had come to a place where a line had to be drawn as nearly as possible between what is undoubtedly the 'public interest' and what is not.").
195. HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA JURISPRUDENCE 10 (1993). Gillman nicely summarizes the historical literature at 6-9; see also John V. Orth, Taking From A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337, 337-45 (1997); G. Edward White, Revisiting Substantive Due Process and Holmes's Lochner Dissent, 63 BROOK. L. REV. 87, 88-89 (1997) (Substantive due process claims tested "the boundary between the police powers of the states and the principle that no legislature could enact 'partial' legislation, legislation that imposed burdens or conferred benefits on one class of citizens rather than the citizenry as a whole.").
196. HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA JURISPRUDENCE 10 (1993). Gillman nicely summarizes the historical literature at 6-9; see also John V. Orth, Taking From A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337, 337-45 (1997); G. Edward White, Revisiting Substantive Due Process and Holmes's Lochner Dissent, 63 BROOK. L. REV. 87, 88-89 (1997) (Substantive due process claims tested "the boundary between the police powers of the states and the principle that no legislature could enact 'partial' legislation, legislation that imposed burdens or conferred benefits on one class of citizens rather than the citizenry as a whole.").
197. HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA JURISPRUDENCE 10 (1993). Gillman nicely summarizes the historical literature at 6-9; see also John V. Orth, Taking From A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 337, 337-45 (1997); G. Edward White, Revisiting Substantive Due Process and Holmes's Lochner Dissent, 63 BROOK. L. REV. 87, 88-89 (1997) (Substantive due process claims tested "the boundary between the police powers of the states and the principle that no legislature could enact 'partial' legislation, legislation that imposed burdens or conferred benefits on one class of citizens rather than the citizenry as a whole.").
198. See, e.g., Truax v. Corrigan, 257 U.S. 312, 329-33 (1921).
199. Thus Sutherland had written to Harding in 1920 that with respect to the labor question, special emphasis should be laid upon the rights of the general public, from whose pockets in the last analysis come both dividends and wages and who, while greatly outnumbering both employers and workmen, are unorganized and therefore in danger of being ground between these highly disciplined organizations. I am not sure but that one of the gravest dangers the people as a whole are facing is that of being dominated and exploited by and for the benefit of organized minorities of various kinds who know exactly what they want. The government while bound within the legitimate scope of its powers to enforce a square deal as between labor and capital, owes a peculiar, if not a paramount duty to the general public-numerically strong, but strategically weak-to see that it is not made the victim of the conscious or unconscious selfishness of both classes. I am afraid that compulsory arbitration is not the remedy. There are inherent and serious difficulties in the way of supplying the coercive processes of the law to large groups of men whose offense may often consist of simply failing to recognize and discharge their economic duties to society. But I think at least we should devise some plan by which the claims of either against the other where they cannot be settled by mutual arrangement, may be heard and determined by a thoroughly impartial tribunal whose standing and character will be such that its findings will have behind them the sanction of an instructed and determined public opinion. Letter from George Sutherland to Warren G. Harding (June 26, 1920) (Sutherland Papers). Taft held quite similar views. See e.g., Industrial Peace (May 26, 1919), in WILLIAM HOWARD TAFT: COLLECTED EDITORIALS, 1917-1921, at 216-19 (James F. Vivian, ed., 1990); see also Red Control of Labor (Oct. 18, 1919), in id., at 287-89; Gary and Unionism (Apr. 27, 1921), in id. at 571-72; Labor and the Farmers (June 29, 1921), in id. at 591-93.
200. For a report of the decision of the KCIR, see The Kansas Court of Industrial Relations Regulates Labor Relations in the Packing Industry, LAW & LAB. 144 (June 1921). The KCIR ordered, inter alia, that "women workers should receive the same wages as men engaged in the same class and kind of work." Id. at 146;
201. see also Decision of the Court of Industrial Relations of Kansas in Meat Packing Company Case, 13 MONTHLY LAB. REV. 206, 206-07 (July 1921). On the whole, the rulings of the KCIR were highly favorable to labor. For example, the KCIR held that workers were entitled to a "living wage," meaning "a wage which enables the worker to supply himself and those absolutely dependent upon him with sufficient food to maintain life and health; with a shelter from the inclemencies of the weather; with sufficient clothing to preserve the body from the cold and to enable persons to mingle among their fellows in such ways as may be necessary in the preservation of life." State v. Topeka Edison Co., reproduced in WILLIAM L. HUGGINS, LABOR AND DEMOCRACY 165 (1922). The Court also held that workers were entitled to a "fair wage," by which it meant, among many other things, that "'first-class workers' as well as 'skilled workers' . . . are entitled to a wage which will enable them by industry and economy not only to supply themselves with opportunities for intellectual advancement and reasonable recreation, but also to enable the parents working together to furnish the children ample opportunities for intellectual and moral advancement, for education, and for an equal opportunity in the race of life. A fair wage will also allow the frugal man to provide reasonably for sickness and old age." Id. at 166-67.
202. see also Decision of the Court of Industrial Relations of Kansas in Meat Packing Company Case, 13 MONTHLY LAB. REV. 206, 206-07 (July 1921). On the whole, the rulings of the KCIR were highly favorable to labor. For example, the KCIR held that workers were entitled to a "living wage," meaning "a wage which enables the worker to supply himself and those absolutely dependent upon him with sufficient food to maintain life and health; with a shelter from the inclemencies of the weather; with sufficient clothing to preserve the body from the cold and to enable persons to mingle among their fellows in such ways as may be necessary in the preservation of life." State v. Topeka Edison Co., reproduced in WILLIAM L. HUGGINS, LABOR AND DEMOCRACY 165 (1922). The Court also held that workers were entitled to a "fair wage," by which it meant, among many other things, that "'first-class workers' as well as 'skilled workers' . . . are entitled to a wage which will enable them by industry and economy not only to supply themselves with opportunities for intellectual advancement and reasonable recreation, but also to enable the parents working together to furnish the children ample opportunities for intellectual and moral advancement, for education, and for an equal opportunity in the race of life. A fair wage will also allow the frugal man to provide reasonably for sickness and old age." Id. at 166-67.
203. Progressives like Felix Frankfurter at THE NEW REPUBLIC were simultaneously relieved and concerned. "The Kansas Court of Industrial Relations is dead. That great achievement of the Middle Western 'law and order' movement is killed by the Supreme Court of the land. . . Thus fails another social experiment, not because it has been tried and found wanting, but because it has been tried and found unconstitutional. . . . The New Republic is opposed to the idea which underlay the Kansas Industrial Court. . . . We . . . disbelieve in compulsory arbitration as a social policy; but we do not disbelieve in Kansas or any other state venturing a trial of the experiment. . . . We too rejoice with Messrs. Gompers and Emery over the death of the Kansas Industrial Court; but it was for the legislature of Kansas, and not for the Supreme Court, to kill it." Editorial, Exit the Kansas Court, 35 NEW REPUBLIC 112, 112-13 (June 27, 1923).
204. We do not have the original draft of Taft's opinion, but on May 29, 1923, he wrote to Van Devanter asking him to review the manuscript and make "suggestions." Letter from Taft to Van Devanter (May 29, 1923) (Taft Papers, Reel 254). Van Devanter responded with a long (undated) analysis, arguing that As a whole, I fear the opinion will leave the impression that if only the Wolf [sic] Company's business were affected with a public interest, the provisions of the statute as applied to it would be valid. To my mind this would not be so. Take for instance an elevator business and concede that it is so far affected with a public interest that the legislature may prescribe the rates to be charged to the public. Does this carry with it a power to make the owner continue the business, or a power to fix the wages which he must pay and his employees must accept, etc.? This hardly can be so. I cannot believe that all business affected with a public interest may be put on the same ground, nor that the power of regulation concededly extending to some features of such a business extends to every feature. The phrase "affected with a public interest" to me does not convey a definite conception of uniform application. . . . Even if Kansas could regulate the price at which the Wolf [sic] Company may sell its meat products, I do not think this carries with it what really is in question in the present case. I fear that the opinion lays too much stress upon the question of when a business is affected with a public interest and not enough on the other questions. Taft Papers, Reel 254. Taft thanked Van Devanter for his "frank note," and said that he could alter his opinion to put it "on the ground that regulation of businesses that develop by change of conditions . . . into those affected with a public interest can not be regulated to secure their continuity and compel use of property and services by labor. I agree with you that the character of permissible regulation must vary with the kind of business but the cases are not such that it is easy to draw useful distinctions." Letter from Taft to Van Devanter (undated) (Van Devanter Papers).
205. Wolff Packing Co. v. Indus. Relations, 262 U.S. 552, 534 (1925). For an example of Taft's willingness to require continuity of service with respect to property affected with a public interest, see Western & Atl. R.R. v. Georgia Pub. Serv. Comm'n, 267 U.S. 493, 496-98 (1925) (holding that an order requiring the Railroad Company to continue service on an industrial side track did not deprive the company of its property without due process of law). See also Southern Ry. Co. v. Clift, 260 U.S. 316, 321 (1922) ("The service of a railroad is in the public interest; it is compulsory. . . ."). In Wolff, however, Taft held that such "continuity of a business" could only be required "where the obligation to the public of continuous service is direct, clear and mandatory and arises as a contractual condition express or implied of entering the business either as owner or worker. It can only arise when investment by the owner and entering the employment by the worker create a conventional relation to the public somewhat equivalent to the appointment of officers and the enlistment of soldiers and sailors in military service." Wolff Packing Co., 262 U.S. at 541. Supporters of the KCIR had advanced precisely this metaphor of employers and employees conscripted into public service. Thus F. Dumont Smith argued that employees in necessary industries were like a "locomotive engineer" who is not free to quit while the train is running, but must "remain with his engine until he reaches the next division point." When once we get that principle, we will understand . . . that this law is constitutional; when we establish that these industries are essential to human life and to human health, whoever enters those industries in effect enlists exactly as does the soldier or the policeman in the preservation of the public peace. He is bound, not to continue to work individually - he may retire from that employment at any moment. But he can't conspire, he can't stir up a mutiny that shall destroy the army of the public weal. F. Dumont Smith, The Kansas Industrial Court, REPORT OF THE FORTY-FIFTH ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION 208, 214 (1922); see also Editorial, The Right to Strike, 110 NATION 389, 389 (Mar. 27, 1920) (quoting remarks of Judge Wendell Phillips Stafford of the Supreme Court of the District of Columbia, to the effect that public employees "have no more right to strike than any other soldier has."). Indeed, Taft had himself invoked the image of employees as soldiers in his condemnation of the Boston Police strike of 1919. See William Howard Taft, Address of William Howard Taft at Malden, Massachusetts 20 (Oct. 30, 1919) (Taft Papers, Reel 574). (Police "are not compelled to serve. Their duty is as high as that of soldiers and sailors in the army of the United States, but they are not as strictly bound. A soldier or sailor can not resign - a policeman may. He is not compelled to serve, but he may not combine with his fellows to embarrass the state he serves by a strike which shall leave that state helpless. That is a combination that ought never to be permitted and ought to be denounced by law. With soldiers and sailors it would be punishable as mutiny, and morally it is the same offense with policemen.").
206. Wolff Packing Co. v. Indus. Relations, 262 U.S. 552, 534 (1925). For an example of Taft's willingness to require continuity of service with respect to property affected with a public interest, see Western & Atl. R.R. v. Georgia Pub. Serv. Comm'n, 267 U.S. 493, 496-98 (1925) (holding that an order requiring the Railroad Company to continue service on an industrial side track did not deprive the company of its property without due process of law). See also Southern Ry. Co. v. Clift, 260 U.S. 316, 321 (1922) ("The service of a railroad is in the public interest; it is compulsory. . . ."). In Wolff, however, Taft held that such "continuity of a business" could only be required "where the obligation to the public of continuous service is direct, clear and mandatory and arises as a contractual condition express or implied of entering the business either as owner or worker. It can only arise when investment by the owner and entering the employment by the worker create a conventional relation to the public somewhat equivalent to the appointment of officers and the enlistment of soldiers and sailors in military service." Wolff Packing Co., 262 U.S. at 541. Supporters of the KCIR had advanced precisely this metaphor of employers and employees conscripted into public service. Thus F. Dumont Smith argued that employees in necessary industries were like a "locomotive engineer" who is not free to quit while the train is running, but must "remain with his engine until he reaches the next division point." When once we get that principle, we will understand . . . that this law is constitutional; when we establish that these industries are essential to human life and to human health, whoever enters those industries in effect enlists exactly as does the soldier or the policeman in the preservation of the public peace. He is bound, not to continue to work individually - he may retire from that employment at any moment. But he can't conspire, he can't stir up a mutiny that shall destroy the army of the public weal. F. Dumont Smith, The Kansas Industrial Court, REPORT OF THE FORTY-FIFTH ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION 208, 214 (1922); see also Editorial, The Right to Strike, 110 NATION 389, 389 (Mar. 27, 1920) (quoting remarks of Judge Wendell Phillips Stafford of the Supreme Court of the District of Columbia, to the effect that public employees "have no more right to strike than any other soldier has."). Indeed, Taft had himself invoked the image of employees as soldiers in his condemnation of the Boston Police strike of 1919. See William Howard Taft, Address of William Howard Taft at Malden, Massachusetts 20 (Oct. 30, 1919) (Taft Papers, Reel 574). (Police "are not compelled to serve. Their duty is as high as that of soldiers and sailors in the army of the United States, but they are not as strictly bound. A soldier or sailor can not resign - a policeman may. He is not compelled to serve, but he may not combine with his fellows to embarrass the state he serves by a strike which shall leave that state helpless. That is a combination that ought never to be permitted and ought to be denounced by law. With soldiers and sailors it would be punishable as mutiny, and morally it is the same offense with policemen.").
207. Wolff Packing Co., 262 U.S. at 534. Taft drew this premise from Justice Sutherland's opinion in Adkins v. Children's Hospital, decided two months previously: "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." Adkins v. Children's Hosp., 261 U.S. 525, 546 (1923).
208. Wolff Packing Co., 262 U.S. at 536. Taft wrote that the determination of this status is "always a subject of judicial inquiry" and never merely a matter of "the mere declaration by a legislature." Id.
209. Id. at 538-39.
210. Id. at 538.
211. Id.
212. Id. at 535.
213. Id. at 542. Taft distinguished Wilson v. New on these grounds. In New the Court had upheld a congressional statute temporarily setting wages for railroad workers. See Wilson v. New, 243 U.S. 332 (1917) (declaring constitutional a statute enacted to avoid the catastrophe of a general railroad strike).
214. Wolff Packing Co., 262 U.S. at 538.
215. Taft's schema of three classes of "businesses said to be clothed with a public interest justifying some public regulation" is almost pathetically circular: (1) Those which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities. (2) Certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest times, . . . Such are those of the keepers of inns, cabs and grist mills. (3) Business which though not public at their inception may be fairly said to have risen to be such and have become subject in consequences to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly. Id. at 535.
216. Id. at 537 (emphasis added). On the origins of the phrase "ordinary callings" see FRANK R. STRONG, SUBSTANTIVE DUE PROCESS OF LAW: A DICHOTOMY OF SENSE AND NONSENSE 96 (1986) (noting that the phrase "derived from long-standing hostility toward publicly granted monopoly").
217. Wolff Packing Co., 262 U.S. at 543.
218. Id. Surely resonating in this quotation is that nursery-rhyme evocation of the quotidian: "The butcher, the baker, the candlestick maker . . ." Taft adds in his opinion that to permit "the common callings" to become "clothed with a public interest by a mere legislative declaration, which necessarily authorizes full and comprehensive regulation within legislative discretion," would constitute "a revolution in the relation of government to general business." Id. at 539.
219. Kansas Labor Court Between Two Fires, N.Y. TIMES, Feb. 25, 1922, at 19 (Remarks of Harry Sharp, Secretary of Associated Industries of Kansas).
220. Matthew Woll, How the Kansas Plan Defies Fundamental American Freedom, 29 AM. FEDERATIONIST 317, 321 (May, 1922); see also Kansas Labor Court, supra note 145 (Remarks of John S. Dean, counsel for Associated Industries of Kansas).
221. George Soule, Hard Boiled Radicalism, 65 NEW REPUBLIC 261, 265 (Jan. 21, 1931). We have now come to regard this faith as the natural foundation of the state. So, for example, Felix Frankfurter could write in 1912: "The tremendous economic and social changes of the last fifty years have inevitably reacted upon the functions of the state. More and more government is conceived as the biggest organized social effort for dealing with social problems . . . . Growing democratic sympathies, justified by the social message of modern scientists, demand to be translated into legislation for economic betterment, based upon the conviction that laws can make men better by affecting the conditions of living." Felix Frankfurter, The Zeitgeist and the Judiciary, 29 SURVEY 542, 542 (Jan. 25, 1913).
222. George Soule, Hard Boiled Radicalism, 65 NEW REPUBLIC 261, 265 (Jan. 21, 1931). We have now come to regard this faith as the natural foundation of the state. So, for example, Felix Frankfurter could write in 1912: "The tremendous economic and social changes of the last fifty years have inevitably reacted upon the functions of the state. More and more government is conceived as the biggest organized social effort for dealing with social problems . . . . Growing democratic sympathies, justified by the social message of modern scientists, demand to be translated into legislation for economic betterment, based upon the conviction that laws can make men better by affecting the conditions of living." Felix Frankfurter, The Zeitgeist and the Judiciary, 29 SURVEY 542, 542 (Jan. 25, 1913).
223. It is fair to say the supporters of the KCIR precisely believed that managerial organization had already invaded the domains of economic life regulated by the KCIR. Thus Elmer T. Peterson, Associate Editor of the WITCHITA BEACON (of which Henry Allen was the editor), wrote: Organization, advanced by specialization, invention and other modern developments, has set up an invisible government. The only way the people have of retrieving their political power and staving off economic pressure is to erect governmental tribunals with power to prevent economic strangulation . . . . Elmer T. Peterson, Is the Labor Problem insolvable? 5 NAT'L CIVIL FED'N REV. 14 (Sept. 25, 1920). The logic of the KCIR, in other words, was to invoke organization in order to fight organization.
224. Nebbia v. New York, 291 U.S. 502, 539 (1934).
225. Id. at 536. "Price control," the Court ruled, "like any form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty." Id. at 539.
226. Id. at 554-55 (McReynolds, J., dissenting) (emphasis added). McReynolds continued: "[I]f it be now ruled that one dedicates his property to public use whenever he embarks on an enterprise which the Legislature may think it desirable to bring under control, this is but to declare that rights guaranteed by the Constitution exist only so long as supposed public interest does not require their extinction. To adopt such a view, of course, would put an end to liberty under the Constitution." Id. at 555.
227. Howat v. Kansas, 258 U.S. 181, 183 (1922); see also State ex rel. Hopkins v. Howat, 198 P. 686, 694 (Kan. 1921).
228. Henry J. Allen, The Settlement of Labor Disputes, ELECTRIC RAILWAY J. 753 (Oct. 16, 1920) ("All reasonable men, whether they belong in the ranks of capital or labor, realize that we are working under modern conditions and that all the elements of manufacturing, production, transportation, and distribution are mixed together in a common machine; that a break in one part of the far-flung machinery breaks down the whole public relations.").
229. Frank P. Walsh, Henry Allen's Industrial Court, 110 NATION 755, 757 (June 5, 1920); see also W.B. Rubin, The Kansas Industrial Act and the United States Supreme Court, AM. FEDERATIONIST 832, 833 (Oct. 1923) ("The right to free contract, the right to work or not to work, the right to advise or not to advise some one to join with another in such things marks the boundary line between slavery and freedom."); Matthew Woll, Industry's Eternal Triangle, 8 NATION'S Bus. 17, 17-18 (June 1920) (arguing that the right of laborers to strike is a fundamental democratic right). The AMERICAN FEDERATIONIST argued that the KCIR would "legislate men into serfdom," because "the very essence of democracy is found" in "the trade union practice of collective bargaining and . . . trade agreement." Samuel Gompers, What's the Matter with Kansas? 27 AM. FEDERATIONIST 155, 156 (Feb. 1920); see also Alexander Howat, Kansas Stands for Freedom, LABOR AGE 12, 12-23 (Dec. 1921).
230. Frank P. Walsh, Henry Allen's Industrial Court, 110 NATION 755, 757 (June 5, 1920); see also W.B. Rubin, The Kansas Industrial Act and the United States Supreme Court, AM. FEDERATIONIST 832, 833 (Oct. 1923) ("The right to free contract, the right to work or not to work, the right to advise or not to advise some one to join with another in such things marks the boundary line between slavery and freedom."); Matthew Woll, Industry's Eternal Triangle, 8 NATION'S Bus. 17, 17-18 (June 1920) (arguing that the right of laborers to strike is a fundamental democratic right). The AMERICAN FEDERATIONIST argued that the KCIR would "legislate men into serfdom," because "the very essence of democracy is found" in "the trade union practice of collective bargaining and . . . trade agreement." Samuel Gompers, What's the Matter with Kansas? 27 AM. FEDERATIONIST 155, 156 (Feb. 1920); see also Alexander Howat, Kansas Stands for Freedom, LABOR AGE 12, 12-23 (Dec. 1921).
231. Frank P. Walsh, Henry Allen's Industrial Court, 110 NATION 755, 757 (June 5, 1920); see also W.B. Rubin, The Kansas Industrial Act and the United States Supreme Court, AM. FEDERATIONIST 832, 833 (Oct. 1923) ("The right to free contract, the right to work or not to work, the right to advise or not to advise some one to join with another in such things marks the boundary line between slavery and freedom."); Matthew Woll, Industry's Eternal Triangle, 8 NATION'S Bus. 17, 17-18 (June 1920) (arguing that the right of laborers to strike is a fundamental democratic right). The AMERICAN FEDERATIONIST argued that the KCIR would "legislate men into serfdom," because "the very essence of democracy is found" in "the trade union practice of collective bargaining and . . . trade agreement." Samuel Gompers, What's the Matter with Kansas? 27 AM. FEDERATIONIST 155, 156 (Feb. 1920); see also Alexander Howat, Kansas Stands for Freedom, LABOR AGE 12, 12-23 (Dec. 1921).
232. Frank P. Walsh, Henry Allen's Industrial Court, 110 NATION 755, 757 (June 5, 1920); see also W.B. Rubin, The Kansas Industrial Act and the United States Supreme Court, AM. FEDERATIONIST 832, 833 (Oct. 1923) ("The right to free contract, the right to work or not to work, the right to advise or not to advise some one to join with another in such things marks the boundary line between slavery and freedom."); Matthew Woll, Industry's Eternal Triangle, 8 NATION'S Bus. 17, 17-18 (June 1920) (arguing that the right of laborers to strike is a fundamental democratic right). The AMERICAN FEDERATIONIST argued that the KCIR would "legislate men into serfdom," because "the very essence of democracy is found" in "the trade union practice of collective bargaining and . . . trade agreement." Samuel Gompers, What's the Matter with Kansas? 27 AM. FEDERATIONIST 155, 156 (Feb. 1920); see also Alexander Howat, Kansas Stands for Freedom, LABOR AGE 12, 12-23 (Dec. 1921).
233. Frank P. Walsh, Henry Allen's Industrial Court, 110 NATION 755, 757 (June 5, 1920); see also W.B. Rubin, The Kansas Industrial Act and the United States Supreme Court, AM. FEDERATIONIST 832, 833 (Oct. 1923) ("The right to free
234. Editorial, The Kansas Decision, N.Y. TRIB., June 13, 1923, at 12; see also Editorial, Kansas Industrial Court Dead, BROOK. DAILY EAGLE, June 12, 1923, at 6; Editorial, The Kansas Industrial Court, N.Y. TIMES, June 13, 1923, at 18. THE PHILADELPHIA PUBLIC LEDGER interpreted the Wolff Packing decision as a direct warning to "progressives" in the Senate who sought to regulate business. "Not alone for its effect on the nationally known Kansas Court, . . . but as a warning to the 'Progressive bloc' in the next Congress, bent on governmental regulation of all manner of industries - chiefly coal, sugar, gasoline - was the Supreme Court's decision held to be of the highest importance." Robert Barry, High Court Halts State Wage Fixing, PHILA. PUB. LEDGER, June 12, 1923, at 1. In a subsequent editorial, the LEDGER observed that "If progressives of both parties . . . have been seeking a sign from the Supreme Court, they now have that sign. They know now what that tribunal's attitude will be toward more government in industry at the expense of the individual's rights." Editorial, In the Kansas Case, PHILA. PUB. LEDGER, June 13, 1923, at 10.
235. Editorial, The Kansas Decision, N.Y. TRIB., June 13, 1923, at 12; see also Editorial, Kansas Industrial Court Dead, BROOK. DAILY EAGLE, June 12, 1923, at 6; Editorial, The Kansas Industrial Court, N.Y. TIMES, June 13, 1923, at 18. THE PHILADELPHIA PUBLIC LEDGER interpreted the Wolff Packing decision as a direct warning to "progressives" in the Senate who sought to regulate business. "Not alone for its effect on the nationally known Kansas Court, . . . but as a warning to the 'Progressive bloc' in the next Congress, bent on governmental regulation of all manner of industries - chiefly coal, sugar, gasoline - was the Supreme Court's decision held to be of the highest importance." Robert Barry, High Court Halts State Wage Fixing, PHILA. PUB. LEDGER, June 12, 1923, at 1. In a subsequent editorial, the LEDGER observed that "If progressives of both parties . . . have been seeking a sign from the Supreme Court, they now have that sign. They know now what that tribunal's attitude will be toward more government in industry at the expense of the individual's rights." Editorial, In the Kansas Case, PHILA. PUB. LEDGER, June 13, 1923, at 10.
236. Editorial, The Kansas Decision, N.Y. TRIB., June 13, 1923, at 12; see also Editorial, Kansas Industrial Court Dead, BROOK. DAILY EAGLE, June 12, 1923, at 6; Editorial, The Kansas Industrial Court, N.Y. TIMES, June 13, 1923, at 18. THE PHILADELPHIA PUBLIC LEDGER interpreted the Wolff Packing decision as a direct warning to "progressives" in the Senate who sought to regulate business. "Not alone for its effect on the nationally known Kansas Court, . . . but as a warning to the 'Progressive bloc' in the next Congress, bent on governmental regulation of all manner of industries - chiefly coal, sugar, gasoline - was the Supreme Court's decision held to be of the highest importance." Robert Barry, High Court Halts State Wage Fixing, PHILA. PUB. LEDGER, June 12, 1923, at 1. In a subsequent editorial, the LEDGER observed that "If progressives of both parties . . . have been seeking a sign from the Supreme Court, they now have that sign. They know now what that tribunal's attitude will be toward more government in industry at the expense of the individual's rights." Editorial, In the Kansas Case, PHILA. PUB. LEDGER, June 13, 1923, at 10.
237. Editorial, The Kansas Decision, N.Y. TRIB., June 13, 1923, at 12; see also Editorial, Kansas Industrial Court Dead, BROOK. DAILY EAGLE, June 12, 1923, at 6; Editorial, The Kansas Industrial Court, N.Y. TIMES, June 13, 1923, at 18. THE PHILADELPHIA PUBLIC LEDGER interpreted the Wolff Packing decision as a direct warning to "progressives" in the Senate who sought to regulate business. "Not alone for its effect on the nationally known Kansas Court, . . . but as a warning to the 'Progressive bloc' in the next Congress, bent on governmental regulation of all manner of industries - chiefly coal, sugar, gasoline - was the Supreme Court's decision held to be of the highest importance." Robert Barry, High Court Halts State Wage Fixing, PHILA. PUB. LEDGER, June 12, 1923, at 1. In a subsequent editorial, the LEDGER observed that "If progressives of both parties . . . have been seeking a sign from the Supreme Court, they now have that sign. They know now what that tribunal's attitude will be toward more government in industry at the expense of the individual's rights." Editorial, In the Kansas Case, PHILA. PUB. LEDGER, June 13, 1923, at 10.
238. Editorial, The Kansas Decision, N.Y. TRIB., June 13, 1923, at 12; see also Editorial, Kansas Industrial Court Dead, BROOK. DAILY EAGLE, June 12, 1923, at 6; Editorial, The Kansas Industrial Court, N.Y. TIMES, June 13, 1923, at 18. THE PHILADELPHIA PUBLIC LEDGER interpreted the Wolff Packing decision as a direct warning to "progressives" in the Senate who sought to regulate business. "Not alone for its effect on the nationally known Kansas Court, . . . but as a warning to the 'Progressive bloc' in the next Congress, bent on governmental regulation of all manner of industries - chiefly coal, sugar, gasoline - was the Supreme Court's decision held to be of the highest importance." Robert Barry, High Court Halts State Wage Fixing, PHILA. PUB. LEDGER, June 12, 1923, at 1. In a subsequent editorial, the LEDGER observed that "If progressives of both parties . . . have been seeking a sign from the Supreme Court, they now have that sign. They know now what that tribunal's attitude will be toward more government in industry at the expense of the individual's rights." Editorial, In the Kansas Case, PHILA. PUB. LEDGER, June 13, 1923, at 10.
239. John A. Fitch, The Case Against the Law, 44 SURVEY 303 (May 29, 1920).
240. On the incompatible constructions of the person within democratic and managerial domains, see ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 4-15 (1995).
241. See id. at 188-89.
242. This interpretation is especially visible in Justice Brandeis' concurrence in Wolff Packing. In a note signifying his assent to Taft's opinion, Brandeis wrote that "In Wilson v. New there was 'clear and present danger' and the 'curse was in its bigness.'" Brandeis to Taft (Taft Papers, Reel 639). On Wilson v. New, see supra note 139. A month later, in conversation with Felix Frankfurter, Brandeis made clear his belief that "fundamental rights" concerning "speech," "education," "choice of profession," and "locomotion" should "not be impaired or withdrawn except as judged by 'clear and present danger' test." Urofsky, supra note 77, at 320. It is thus most plausible to interpret Brandeis' concurrence in Wolff Packing as expressing his view that the KCIR was an assault on fundamental liberties. We might appreciate why this is so by recalling that as early as 1913 Brandeis had made clear his opposition to compulsory arbitration because of its impairment of the "moral vigor" necessary to maintain "the fighting quality, the stamina, and the courage to battle for what we want when we are convinced that we are entitled to it." Louis Brandeis, quoted in Brandeis on the Labor Problem: How Far Have We Come on the Road to Industrial Democracy? 5 LA FOLLETTE'S WKLY. MAG. 5-15 (May 24, 1913).
243. See Pound, supra note 86, at 609-10. 161 273 U.S. 418 (1927).
244. Id. at 427-28.
245. Id. at 430. Sutherland had held this view even before being appointed to the Court. In January 1921, for example, he had told the New York State Bar Association: The power to fix prices by law or administrative order has been uniformly denied by the courts save in those exceptional cases where the business or the service is clothed with a public interest. In all other cases the owner has an inherent, constitutional right to the market price, fixed by what is called the "higgling of the market," irrespective of the extent of his profits. Such a right is, indeed, itself essentially property which stands upon an equality with life and liberty, under the guaranties of the Fifth and Fourteenth Amendments. George Sutherland, Principle or Expedient? 44 N.Y. ST. B. ASS'N PROC. & REP. 263, 277 (1921).
246. Sutherland said only that "the right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself." Tyson, 273 U.S. at 429. He did not clarify why "the status of a private business" was compatible with licensing requirements, but not with price regulation. It is in this regard noteworthy that as early as 1925, the Court had had before it provisions of the same New York statute that it would consider two years later in Tyson. In Weller v. New York, the Court upheld provisions of this statute that required ticket brokers to be licensed, holding that the price-fixing provisions of the statute were "severable." Weller v. New York, 268 U.S. 319, 325 (1925).
247. Tyson, 272 U.S. at 439. Justices Holmes, Brandeis, Sanford and Stone dissented.
248. Id. at 430. Sutherland ultimately came to rest on the patently fictional formulation that "a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby, in effect, granted to the public." Id. at 434.
249. In a pre-argument memorandum on Weller, Sutherland had commented that "I am disposed to think that a theatre is not a business impressed with a public interest, but a private enterprise as much under the control of the owner as a shop for the sale of goods." Memorandum from Sutherland to Taft (Apr. 23, 1925) (Taft Papers, Reel 73).
250. Tyson, 273 U.S. at 430. Lest there be any ambiguity, Sutherland explicitly characterized German Alliance Insurance Co. as the "extreme limit to which this court thus far has gone in sustaining price fixing legislation." Id. at 434.
251. Id. at 442.
252. Id. at 442. THE NEW REPUBLIC correctly viewed Tyson as the portent of a swelling conservative tide. "Until recent years the Court could generally be counted on to take a liberal attitude toward statutes outside the labor field. . . . The last three years have witnessed a marked change. The Nebraska bread law, the Pennsylvania shoddy law [Weaver v. Palmer Brothers Co., 270 U.S. 402 (1926)], and now the New York scalping law, have been successively invalidated. . . . [I]f the trend of the past three years continues, the due process clause will furnish an increasingly effective obstruction to every effort of legislature or city council." Editorial, The Constitution Shelters the Ticket Speculator, 50 NEW REPUBLIC 84, 86 (Mar. 16, 1927).
253. Tyson, 273 U.S. at 446 (Holmes, J., dissenting). Justice Brandeis joined Holmes' dissent. Holmes later described his dissent as taking a "whack at 'police power' and 'dedicated to a public use' - as apologetic phrases springing from the unwillingness to recognize the fact of power." Letter from Holmes to Harold Laski, (Mar. 17, 1927), in 2 HOLMES-LASKI LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND HAROLD J. LASKI 1916-1935, at 927 (Mark DeWolfe Howe, ed., 1953). Frankfurter wrote Holmes rejoicing "over your new declaration of independence of all those sterile 'apologies' which 'police power" and 'affected with public interest' cover. You have never written a more illuminating opinion on Due Process and I throw my hat into the air for it." Letter from Frankfurter to Holmes, (Mar. 19, 1927), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, supra note 51, at 212. Learned Hand reported to Holmes that the Tyson dissent "said much that I had always wanted to have said, and said it in a way that especially reached my vitals, the ganglia where the pleasure centers are." Letter from Learned Hand to Oliver Wendell Holmes (Holmes Papers, Reel 15, Frame 130).
254. Stone's dissent was joined by Holmes and Brandeis.
255. Tyson, 273 U.S. at 451-52 (Stone, J., dissenting).
256. Id. at 450. On subsequent struggles with this monopoly, see Equity Hits Inequity, 103 LITERARY DIG. 20 (Dec. 7, 1929); Ted Goldsmith, There's Nothing New in Ticket Speculation: An Inquiry into Past and Present Activities of the Ticket Merchants, 53 THEATRE MAG. 21, 21-22 (Feb. 1931) (tracing the role of the ticket speculator in New York theater); War Against Speculators 14 THEATRE ARTS MONTHLY 993, 993-94 (Dec. 1930) (same).
257. Id. at 450. On subsequent struggles with this monopoly, see Equity Hits Inequity, 103 LITERARY DIG. 20 (Dec. 7, 1929); Ted Goldsmith, There's Nothing New in Ticket Speculation: An Inquiry into Past and Present Activities of the Ticket Merchants, 53 THEATRE MAG. 21, 21-22 (Feb. 1931) (tracing the role of the ticket speculator in New York theater); War Against Speculators 14 THEATRE ARTS MONTHLY 993, 993-94 (Dec. 1930) (same).
258. Id. at 450. On subsequent struggles with this monopoly, see Equity Hits Inequity, 103 LITERARY DIG. 20 (Dec. 7, 1929); Ted Goldsmith, There's Nothing New in Ticket Speculation: An Inquiry into Past and Present Activities of the Ticket Merchants, 53 THEATRE MAG. 21, 21-22 (Feb. 1931) (tracing the role of the ticket speculator in New York theater); War Against Speculators 14 THEATRE ARTS MONTHLY 993, 993-94 (Dec. 1930) (same).
259. Thomas Reed Powell, State Utilities and the Supreme Court, 1922-1930, 29 MICH. L. REV. 811, 836 (1931). Taft snorted apropos of Powell's attack on Tyson that "If his views were followed, it would mean that we would have no Constitution at all." Letter from Taft to Moses Strauss (Mar. 31, 1927) (Taft Papers, Reel 290). Sutherland's opinion was blasted in the law reviews as "legal phlogiston." Maurice Finkelstein, From Munn v. Illinois to Tyson v. Banton: A Study in the Judicial Process, 27 COLUM. L. REV. 769, 778 (1927). For a summary of the academic literature disapproving the decision, see Maurice H. Merrill. The New Judicial Approach to Due Process and Price Fixing, 18 KY. L.J. 3, 16 n.56 (1929) (citing a list of sources discussing the Tyson v. Banton holding). Taft wrote to his brother that Tyson "has awakened the condemnation of a good many, but it is right, and that is the way the academicians and those who are not in favor of any Constitution get even with us." Letter from Taft to Horace D. Taft (Jan. 7, 1929) (Taft Papers, Reel 307). See Letter from Horace D. Taft to William Howard Taft (Jan. 4, 1929) (Taft Papers, Reel 307).
260. Thomas Reed Powell, State Utilities and the Supreme Court, 1922-1930, 29 MICH. L. REV. 811, 836 (1931). Taft snorted apropos of Powell's attack on Tyson that "If his views were followed, it would mean that we would have no Constitution at all." Letter from Taft to Moses Strauss (Mar. 31, 1927) (Taft Papers, Reel 290). Sutherland's opinion was blasted in the law reviews as "legal phlogiston." Maurice Finkelstein, From Munn v. Illinois to Tyson v. Banton: A Study in the Judicial Process, 27 COLUM. L. REV. 769, 778 (1927). For a summary of the academic literature disapproving the decision, see Maurice H. Merrill. The New Judicial Approach to Due Process and Price Fixing, 18 KY. L.J. 3, 16 n.56 (1929) (citing a list of sources discussing the Tyson v. Banton holding). Taft wrote to his brother that Tyson "has awakened the condemnation of a good many, but it is right, and that is the way the academicians and those who are not in favor of any Constitution get even with us." Letter from Taft to Horace D. Taft (Jan. 7, 1929) (Taft Papers, Reel 307). See Letter from Horace D. Taft to William Howard Taft (Jan. 4, 1929) (Taft Papers, Reel 307).
261. Thomas Reed Powell, State Utilities and the Supreme Court, 1922-1930, 29 MICH. L. REV. 811, 836 (1931). Taft snorted apropos of Powell's attack on Tyson that "If his views were followed, it would mean that we would have no Constitution at all." Letter from Taft to Moses Strauss (Mar. 31, 1927) (Taft Papers, Reel 290). Sutherland's opinion was blasted in the law reviews as "legal phlogiston." Maurice Finkelstein, From Munn v. Illinois to Tyson v. Banton: A Study in the Judicial Process, 27 COLUM. L. REV. 769, 778 (1927). For a summary of the academic literature disapproving the decision, see Maurice H. Merrill. The New Judicial Approach to Due Process and Price Fixing, 18 KY. L.J. 3, 16 n.56 (1929) (citing a list of sources discussing the Tyson v. Banton holding). Taft wrote to his brother that Tyson "has awakened the condemnation of a good many, but it is right, and that is the way the academicians and those who are not in favor of any Constitution get even with us." Letter from Taft to Horace D. Taft (Jan. 7, 1929) (Taft Papers, Reel 307). See Letter from Horace D. Taft to William Howard Taft (Jan. 4, 1929) (Taft Papers, Reel 307).
262. Letter from Stone to John Bassett Moore (Mar. 3, 1927) (Stone Papers). On the same day Stone wrote to his ex-colleague Young B. Smith at Columbia that he wouldn't "have troubled to write the dissent if the prevailing opinion had frankly met the issue and assigned some real reason for the conclusion reached, but it is time we stopped talking nonsense in such phrases as 'affected with a public interest' and 'grant of a business to a public use.'" Letter from Stone to Young B. Smith (Mar. 3, 1927) (Stone Papers).
263. 277 U.S. 350 (1928). With characteristic shrewdness, THE NEW REPUBLIC instantly appreciated the significance of the case: "A few years ago, when the business of insuring against fire was brought within the category of those businesses which are so 'affected with a public interest' as to make them regulable, it seemed that the Court might easily go on extending this classification to other employments hitherto regarded as private. The Tyson case reversed the trend. Ribnik vs. McBride confirms the reversal." Tugwell, supra note 99, at 120.
264. The decision was six to three. Justice Sanford concurred specially "upon the controlling authority of" Tyson. Ribnik, 277 U.S. at 359 (Sanford J., concurring). Justice Stone dissented, joined by Justices Holmes and Brandeis.
265. Id. at 357. In response to the Court's judgment in Ribnik, New Jersey enacted a strict licensing law that required, among many other things, employment agencies to post a public schedule of fees. See Ch. 283, 1928 N.J. Laws 775-84.
266. Ribnik, 277 U.S. at 373 (Stone, J. dissenting). Stone continued: "[I] can see no difference between a reasonable regulation of price and a reasonable regulation of the use of property, which affects its price or economic return. The privilege of contract and the free use of property are as seriously cut down in the one case as in the other." Id. at 374. In a letter to Herman Oliphant, Stone commented that his dissent "points out a little more effectively than has hitherto been done that there is no essential difference between rate regulations and other forms and that to say, as the majority did, that other forms of regulation are permissible is, in effect, to deny the only form of regulation which is appropriate or effective." Letter from Stone to Herman Oliphant (June 14, 1928) (Stone Papers).
267. Ribnik, 277 U.S. at 373; see also id. at 362.
268. Id. at 363. Stone began to complain at about the time of Ribnik that argumentation before the Court did not provide the data necessary for decision. "Verbal logic chopping, with no apparent consciousness of the social and economic forces which are really involved, are about all we get. If anything more appears in the opinion it is because some member of the court takes the time and energy to go on an exploring expedition of its [sic] own." Letter from Stone to John Bassett Moore (June 5, 1928) (Stone Papers); see also Letter from Stone to Hessel E. Yntema (Oct. 24, 1928) (Stone Papers) ("[T]here is still much to be done in the education of lawyers and judges. Take, for example, the recent case of Ribnik and McBride, in which I wrote a dissenting opinion. You will search in vain in briefs and prevailing opinions for any reference to the considerable amount of material to which I referred in my dissenting opinion. It seems not to have occurred to any of them that such data had very much to do with the case.").
269. For a review of the highly unfavorable academic reactions to Ribnik, see Merrill, supra note 175, at 16 n.56. Merrill regarded the "sinister aspect" of Ribnik to lie in its "apparent abandonment of the fruitful practicality of the method of approach to which expression was given in the Wolff case in favor of a rigidly unyielding judicial prohibition against further extension of the public utility concept." Id. at 15. He also characterized Tyson and Ribnik as a "radical departure" from the "realistic method" of past decisions. Id. at 8.
270. See Tugwell, supra note 99.
271. Id.
272. See Note, The Regulation of Employment Agencies, 38 YALE L.J. 225, 229-30 (1928). The Note regards Tyson and Ribnik as "radical innovations." Id. at 234. "It is surprising," the author of the Note writes, "to find Justice Sutherland disposing of an issue in public policy by a purely conceptual argument; it is disturbing to find the selection of concepts resting upon nothing more basic than an arbitrary choice." Id. at 233.
273. 278 U.S. 235 (1929).
274. Sutherland did admit that it was only in "recent decisions" that the Court had "settled" the question that "a state legislature is without constitutional power to fix prices at which commodities may be sold, services rendered, or property used unless the business or property involved is 'affected with a public interest.'" Id. at 239. Compare Sutherland's remarks in 1921, supra note 163.
275. Id. at 240 (emphasis added).
276. Holmes wrote to Stone that "in spite of Brandeis' exhortations I do not intend to write. I have said my say. I thought that I should say this: 'Of course I yield to the authority of decided cases, and although I thought that this case might be distinguished from its predecessor it is for the propriety that established the precedents to say how far the violet rays of the Fourteenth Amendment reach.' I am rather pleased with this innuendo of 'violet rays.'" Letter from Holmes to Stone (Dec. 20, 1928) (Stone Papers). Stone replied to Holmes: "I like your phrase about the violet rays of the Fourteenth Amendment and would like to join you in it, but I hesitate merely because there are so many solemn-minded people, unembarrassed by any sense of humor, who might feel that we were treating lightly and irreverently a very serious matter." Letter from Stone to Holmes (Dec. 21, 1928) (Stone Papers). Stone added, "Of course there is a good deal in the majority opinion which seems utter rubbish to me." Id.
277. See supra text at note 176.
278. See POST, supra note 157, at 9-10.
279. See, e.g., Small Co. v. American Sugar Refining Co., 267 U.S. 233, 235 (1925) (holding that statute violates due process by creating a duty "so vague and indefinite as to be no rule or standard at all"); Connolly v. General Constr. Co., 269 U.S. 385, 391 (1926) (holding that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application, violates the first essential of due process of law); Cline v. Frink Dairy Co., 274 U.S. 445, 458 (1927); see also Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 CAL. L. REV. 491, 499-503 (1994).
280. See Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 592-94 (1926) (holding that a state may not affix to a private carrier's privilege of using its highways the unconstitutional condition that the carrier shall assume against its will the burdens and duties of a common carrier).
281. In his comprehensive summary of the Court's doctrine, Thomas Reed Powell notes the many cases in which the Court refused to allow state regulations to "extend beyond the area of actual evil in order to make more certain that no evil will escape": A flat prohibition of price discrimination in purchases of milk cannot be sustained as a means of preventing monopoly and restraint of trade, since such practices do not necessarily tend to monopoly and it is feasible to confine the prohibition to discrimination in aid of such ultimate vice. [Fairmont Creamery Co. v. Minnesota, 274 U.S. 1, 9 (1927).] Maximum weights cannot be set for loaves of bread as a means of preventing fraud against customers who mistake a large small loaf for a small large one. [Burns Baking Co. v. Bryan, 264 U.S. 504, 517 (1924).] The state cannot exclude all shoddy from a . . . comfortable in order to ensure that no unsterilized shoddy finds its way in. [Weaver v. Palmer Brothers Co., 270 U.S. 402, 415 (1926).] Thomas Reed Powell, The Supreme Court and State Police Power, 1922-1930-IX, 18 VA. L. REV. 597, 615-16 (1932). Sutherland's reasoning in Tyson is also a classic example of what we would today label overbreadth analysis. After concluding that theatres are private businesses, he argued that price fixing is an unconstitutional method of regulating "fraud, extortion, collusive arrangements between the management and those engaged in reselling tickets," because it "ignores the righteous distinction between guilt and innocence, since it applies wholly irrespective of the existence of fraud, collusion or extortion. . . . It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers also may be caught." Id. at 442-43 (emphasis added).
282. See Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 552, 542 (1925).
283. For an example of Brandeis' use of the clear and present test in the context of an economic substantive due process decision, see supra note 159.
284. 262 U.S. 390, 403 (1923). For historical discussions of the case, see WILLIAM G. ROSS, FORGING NEW FREEDOMS: NATIVISM, EDUCATION, AND THE CONSTITUTION: 1917-1927 (1994); ORVILLE H. ZABEL, GOD AND CAESAR IN NEBRASKA: A STUDY OF THE LEGAL RELATIONSHIP OF CHURCH AND STATE, 1854-1954 (New Ser. No. 14, 1955); Barbara Bennett Woodhouse, Who Owns the Child? Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995 (1992).
285. 262 U.S. 390, 403 (1923). For historical discussions of the case, see WILLIAM G. ROSS, FORGING NEW FREEDOMS: NATIVISM, EDUCATION, AND THE CONSTITUTION: 1917-1927 (1994); ORVILLE H. ZABEL, GOD AND CAESAR IN NEBRASKA: A STUDY OF THE LEGAL RELATIONSHIP OF CHURCH AND STATE, 1854-1954 (New Ser. No. 14, 1955); Barbara Bennett Woodhouse, Who Owns the Child? Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995 (1992).
286. 262 U.S. 390, 403 (1923). For historical discussions of the case, see WILLIAM G. ROSS, FORGING NEW FREEDOMS: NATIVISM, EDUCATION, AND THE CONSTITUTION: 1917-1927 (1994); ORVILLE H. ZABEL, GOD AND CAESAR IN NEBRASKA: A STUDY OF THE LEGAL RELATIONSHIP OF CHURCH AND STATE, 1854-1954 (New Ser. No. 14, 1955); Barbara Bennett Woodhouse, Who Owns the Child? Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995 (1992).
287. 262 U.S. at 397. The case was decided simultaneously with Bartels v. Iowa, 262 U.S. 404 (1923), in which the Court struck down an Iowa statute similar to Nebraska's, and an Ohio statute specifically prohibiting the teaching of German before the eighth grade. In a letter to a friend, Chief Justice Taft described what he regarded as the exact parameters of the decision in Meyer, which, in Taft's words, held that the liberty, secured by the 14th Amendment to the Federal Constitution against State legislation, makes invalid a State law, which forbids a private school and a private school teacher from teaching German. It does not prevent the Legislature from excluding German or any other subject from the curriculum of a public school, and it does not prevent the Legislature from requiring the study of English and the study of the fundamental branches in English in every private school, but it does prevent the Legislature from forbidding a parent to employ a private school or private school teacher to teach his child any subject matter which is not itself vicious. Letter from William Howard Taft to George L. Fox (July 31, 1923) (Taft Papers, Reel 255).
288. William G. Ross, A Judicial Janus: Meyer v. Nebraska in Historical Perspective, 57 U. CIN. L. REV. 125, 133 (1988).
289. The Week, 35 NEW REPUBLIC 54, 57 (June 13, 1923). On the close relationship between these statutes and World War I, see Ross, supra note 200, at 127-34; Niel M. Johnson, The Missouri Synod Lutherans and the War Against the German Language, 1917-1923, 56 NEB. HIST. 137-56 (1975); Carroll Engelhardt, Compulsory Education in Iowa, 1872-1919, 49 ANNALS OF IOWA 58, 75 (Summer/Fall 1987); Carl Zollmann, Parental Rights and the Fourteenth Amendment, 7 MARQ. L. REV. 53, 53 (1923); Note, Foreign Languages in Private Schools - Unconstitutionality of Statutes, 9 IOWA L. BULL. 123, 124 (1924); Editorial, 116 NATION 681, 682 (June 13, 1923). The decision of the Iowa Supreme Court upholding the statute struck down in Bartels made this connection explicit: The advent of the great World War revealed a situation which must have appealed very strongly to the Legislature as justifying the enactment of this statute. Men called to the colors were found to be in some instances not sufficiently familiar with the English language to understand military . . . orders. It was to meet this situation, to encourage the more complete assimilation of all foreigners into our American life, to expedite the full Americanization of all our citizens that the Legislature deemed this statute for the best interests of the state. State v. Bartels, 181 N.W. 508, 513 (Iowa 1921).
290. The Week, 35 NEW REPUBLIC 54, 57 (June 13, 1923). On the close relationship between these statutes and World War I, see Ross, supra note 200, at 127-34; Niel M. Johnson, The Missouri Synod Lutherans and the War Against the German Language, 1917-1923, 56 NEB. HIST. 137-56 (1975); Carroll Engelhardt, Compulsory Education in Iowa, 1872-1919, 49 ANNALS OF IOWA 58, 75 (Summer/Fall 1987); Carl Zollmann, Parental Rights and the Fourteenth Amendment, 7 MARQ. L. REV. 53, 53 (1923); Note, Foreign Languages in Private Schools - Unconstitutionality of Statutes, 9 IOWA L. BULL. 123, 124 (1924); Editorial, 116 NATION 681, 682 (June 13, 1923). The decision of the Iowa Supreme Court upholding the statute struck down in Bartels made this connection explicit: The advent of the great World War revealed a situation which must have appealed very strongly to the Legislature as justifying the enactment of this statute. Men called to the colors were found to be in some instances not sufficiently familiar with the English language to understand military . . . orders. It was to meet this situation, to encourage the more complete assimilation of all foreigners into our American life, to expedite the full Americanization of all our citizens that the Legislature deemed this statute for the best interests of the state. State v. Bartels, 181 N.W. 508, 513 (Iowa 1921).
291. The Week, 35 NEW REPUBLIC 54, 57 (June 13, 1923). On the close relationship between these statutes and World War I, see Ross, supra note 200, at 127-34; Niel M. Johnson, The Missouri Synod Lutherans and the War Against the German Language, 1917-1923, 56 NEB. HIST. 137-56 (1975); Carroll Engelhardt, Compulsory Education in Iowa, 1872-1919, 49 ANNALS OF IOWA 58, 75 (Summer/Fall 1987); Carl Zollmann, Parental Rights and the Fourteenth Amendment, 7 MARQ. L. REV. 53, 53 (1923); Note, Foreign Languages in Private Schools - Unconstitutionality of Statutes, 9 IOWA L. BULL. 123, 124 (1924); Editorial, 116 NATION 681, 682 (June 13, 1923). The decision of the Iowa Supreme Court upholding the statute struck down in Bartels made this connection explicit: The advent of the great World War revealed a situation which must have appealed very strongly to the Legislature as justifying the enactment of this statute. Men called to the colors were found to be in some instances not sufficiently familiar with the English language to understand military . . . orders. It was to meet this situation, to encourage the more complete assimilation of all foreigners into our American life, to expedite the full Americanization of all our citizens that the Legislature deemed this statute for the best interests of the state. State v. Bartels, 181 N.W. 508, 513 (Iowa 1921).
292. The Week, 35 NEW REPUBLIC 54, 57 (June 13, 1923). On the close relationship between these statutes and World War I, see Ross, supra note 200, at 127-34; Niel M. Johnson, The Missouri Synod Lutherans and the War Against the German Language, 1917-1923, 56 NEB. HIST. 137-56 (1975); Carroll Engelhardt, Compulsory Education in Iowa, 1872-1919, 49 ANNALS OF IOWA 58, 75 (Summer/Fall 1987); Carl Zollmann, Parental Rights and the Fourteenth Amendment, 7 MARQ. L. REV. 53, 53 (1923); Note, Foreign Languages in Private Schools - Unconstitutionality of Statutes, 9 IOWA L. BULL. 123, 124 (1924); Editorial, 116 NATION 681, 682 (June 13, 1923). The decision of the Iowa Supreme Court upholding the statute struck down in Bartels made this connection explicit: The advent of the great World War revealed a situation which must have appealed very strongly to the Legislature as justifying the enactment of this statute. Men called to the colors were found to be in some instances not sufficiently familiar with the English language to understand military . . . orders. It was to meet this situation, to encourage the more complete assimilation of all foreigners into our American life, to expedite the full Americanization of all our citizens that the Legislature deemed this statute for the best interests of the state. State v. Bartels, 181 N.W. 508, 513 (Iowa 1921).
293. The Week, 35 NEW REPUBLIC 54, 57 (June 13, 1923). On the close relationship between these statutes and World War I, see Ross, supra note 200, at 127-34; Niel M. Johnson, The Missouri Synod Lutherans and the War Against the German Language, 1917-1923, 56 NEB. HIST. 137-56 (1975); Carroll Engelhardt, Compulsory Education in Iowa, 1872-1919, 49 ANNALS OF IOWA 58, 75 (Summer/Fall 1987); Carl Zollmann, Parental Rights and the Fourteenth Amendment, 7 MARQ. L. REV. 53, 53 (1923); Note, Foreign Languages in Private Schools - Unconstitutionality of Statutes, 9 IOWA L. BULL. 123, 124 (1924); Editorial, 116 NATION 681, 682 (June 13, 1923). The decision of the Iowa Supreme Court upholding the statute struck down in Bartels made this connection explicit: The advent of the great World War revealed a situation which must have appealed very strongly to the Legislature as justifying the enactment of this statute. Men called to the colors were found to be in some instances not sufficiently familiar with the English language to understand military . . . orders. It was to meet this situation, to encourage the more complete assimilation of all foreigners into our American life, to expedite the full Americanization of all our citizens that the Legislature deemed this statute for the best interests of the state. State v. Bartels, 181 N.W. 508, 513 (Iowa 1921).
294. The Week, 35 NEW REPUBLIC 54, 57 (June 13, 1923). On the close relationship between these statutes and World War I, see Ross, supra note 200, at 127-34; Niel M. Johnson, The Missouri Synod Lutherans and the War Against the German Language, 1917-1923, 56 NEB. HIST. 137-56 (1975); Carroll Engelhardt, Compulsory Education in Iowa, 1872-1919, 49 ANNALS OF IOWA 58, 75 (Summer/Fall 1987); Carl Zollmann, Parental Rights and the Fourteenth Amendment, 7 MARQ. L. REV. 53, 53 (1923); Note, Foreign Languages in Private Schools - Unconstitutionality of Statutes, 9 IOWA L. BULL. 123, 124 (1924); Editorial, 116 NATION 681, 682 (June 13, 1923). The decision of the Iowa Supreme Court upholding the statute struck down in Bartels made this connection explicit: The advent of the great World War revealed a situation which must have appealed very strongly to the Legislature as justifying the enactment of this statute. Men called to the colors were found to be in some instances not sufficiently familiar with the English language to understand military . . . orders. It was to meet this situation, to encourage the more complete assimilation of all foreigners into our American life, to expedite the full Americanization of all our citizens that the Legislature deemed this statute for the best interests of the state. State v. Bartels, 181 N.W. 508, 513 (Iowa 1921).
295. Woodhouse, supra note 198, at 1003.
296. Id. at 1017.
297. Nebraska Dist. Of Evangelical Lutheran Synod of Missouri v. McKelvie, 187 N.W. 927, 928-29 (Neb. 1922) (quoting Barbier v. Connolly, 113 U.S. 27, 31 (1885)).
298. Id. at 929 (quoting Wenham v. State, 91 N.W. 421, 424 (Neb. 1902)).
299. Id. at 928-29.
300. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
301. Justices Holmes and Sutherland dissented.
302. Meyer, 262 U.S. at 399-400.
303. At oral argument, Taft put the problem in this way: Here are two conflicting principles - I hope they are not conflicting; but at any rate, they seem to be currents flowing in different directions - here is the regulatory power of the State, to require proper education among its people, to protect itself, and to protect all the people in the education of all. . . . And then, on the other hand, is this freedom, this liberty. 21 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 779-80 (Philip B. Kurland & Gerhard Casper eds., 1975). Note that for Taft the crux of the matter was plainly not whether the state's interest was class-based or factional, but whether a genuine public interest was sufficient to justify intrusion into a constitutionally protected realm.
304. 261 U.S. 525 (1923).
305. This conclusion is confirmed by the casual way in which the pre-New Deal Court would cite Meyer in support of substantive due process decisions protecting economic freedoms. See, e.g., Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 113-14 (1928); Seattle Trust Co. v. Roberge, 278 U.S. 116, 120-23 (1928); Wolff Packing Co. v. Court of Indus. Relations, 267 U.S. 552, 562-69 (1925); Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 513 (1924), and, conversely, the way in which the Court would cite economic decisions in support of extending protections to freedoms that we would now regard as civil liberties. See, e.g., Near v. Minnesota, 283 U.S. 697, 707-08 (1931); Yu Cong Eng v. Trinidad, 271 U.S. 500, 527 (1926). As a general matter, the pre-New Deal Court did not draw sharp lines of distinction between "liberty" and "property" in adjudication under the Due Process Clause. See, e.g., Adair v. United States, 208 U.S. 161, 173-75 (1908); Coppage v. Kansas, 236 U.S. 1, 14 (1914).
306. Roberts v. United States Jaycees, 468 U.S. 609, 618-19 (1984).
307. For a full discussion, see POST, supra note 157, at 3-4, 10-15, 51-88, 180-84, 127-40, 191-96. On Due Process protections for such practices, see Washington v. Glucksberg, 117 S. Ct. 2258, 2283 (1997) (Souter, J., concurring); Moore v. East Cleveland, 431 U.S. 494, 503 (1977); Hardwick v. Bowers, 478 U.S. 186, 191-95 (1985).
308. Letter from Holmes to Harold Laski (Apr. 13, 1929), in 2 HOLMES-LASKI LETTERS, supra note 171, at 1146.
309. Meyer v. Nebraska, 262 U.S. 390, 401 (1923).
310. Thus McReynolds writes: In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and entrusted their subsequent education and training to official guardians. 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. Id. at 402. Of course in this regard McReynolds was drawing on a rich judicial tradition that regarded "the home [a]s the nursery of the family, and the family [a]s the nursery of the state." Williamson v. Liverpool, L. & G. Ins. Co., 105 F. 31, 36 (C.C.D. Mo. 1900).
311. 268 U.S. 510 (1925).
312. Id. at 535. Taft wrote to a friend regarding Pierce: "We had no difficulty after we had decided the Nebraska language case. I can tell you sometime about how we made the Court unanimous." Letter from Taft to Charles P. Hillis, (June 9, 1925) (Taft Papers, Reel 274). Cf. Letter from George Sutherland to William H. Church (June 8, 1925) (Sutherland Papers) ("The decision of our Court in the Oregon School law case . . . was the only possible one. There was never any division of sentiment in the Court from the beginning.").
313. Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 743 (1989); see, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 618-19 (1984); Washington v. Glucksberg, 117 S. Ct. 2258, 2280 (1997) (Souter, J., concurring).
314. See Moore v. City of East Cleveland, 431 U.S. 494, 500-03 & n.8 (1976) (opinion of Powell, J.).
315. Even Holmes was quite willing to acknowledge the connection between property and identity: A man who has lived with a belief, however uncritically accepted, for thirty years, instinctively rejects a new truth no matter how deeply founded in reason and fact if it threatens the existing structure. He fights for his life- and that is why reason has so little of the power that we expect it to have. One of my old chestnuts is that property, friendship and truth have a common root in time. Title by prescription is the most philosophically grounded of any. Letter from Holmes to The Viscount Kentaro Kaneko (Aug. 19, 1925) (Holmes Papers). For Holmes, "We end with an arbitrary can't help." Letter from Holmes to Harold Laski (Feb. 6, 1925), in 2 HOLMES-LASKI LETTERS, supra note 171, at 706.
316. See Charles A. Reich, The New Property, 73 YALE LJ. 733, 771-74 (1964) ("[P]roperty performs the function of maintaining independence, dignity, and pluralism in society by creating zones within which the majority has to yield to the owner."). For a good discussion of the history of the moral values that American have attached to economic liberty, see Harry N. Scheiber, Economic Liberty and the Constitution, in ESSAYS IN THE HISTORY OF LIBERTY: SEAVER INSTITUTE LECTURES AT THE HUNTINGTON LIBRARY 75-99 (1988).
317. See Charles A. Reich, The New Property, 73 YALE LJ. 733, 771-74 (1964) ("[P]roperty performs the function of maintaining independence, dignity, and pluralism in society by creating zones within which the majority has to yield to the owner."). For a good discussion of the history of the moral values that American have attached to economic liberty, see Harry N. Scheiber, Economic Liberty and the Constitution, in ESSAYS IN THE HISTORY OF LIBERTY: SEAVER INSTITUTE LECTURES AT THE HUNTINGTON LIBRARY 75-99 (1988).
318. Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 579 (1928). For a modern restatement of this point, see Cass R. Sunstein, On Property and Constitutionalism, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE AND LEGITIMACY 389-93 (Michael Rosenfeld ed., 1994) ("A constitutional system that respects private property should be regarded not as an effort to oppose liberal rights to collective self-government, but instead as a way of fortifying democratic processes.").
319. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 11-39 (1970).
320. Sutherland, supra note 163, at 278. Sutherland believed that "The more democratic a people is, the more it is necessary that the individual be strong and his property sacred." George Sutherland, Private Rights and Public Duties, in REPORT OF THE FORTIETH ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION 197, 213 (1917).
321. Children's Hosp. v. Adkins, 284 F. 613, 623 (App. D.C. 1921), aff'd, 261 U.S. 525 (1923) (emphasis added); see also Dodge v. Woolsey, 59 U.S. (18 How.) 331, 375 (1855) (Campbell, J. dissenting) ("Individuals are not the creatures of the State, but constitute it. They come into society with rights, which cannot be invaded without injustice.").
322. Editorial, A Decision for Liberty, WORLD, June 6, 1923, at 12; see also The Week, supra note 201, at 57 ("The acts prohibiting the teaching of foreign languages sprang out of a war hysteria that did us small credit."); Editorial, NEW REPUBLIC, supra note 201, at 57; Editorial, NATION, supra note 201, at 682 ; Editorial. The Right to Learn Foreign Tongues, N.Y. TIMES, June 6, 1923, at 20; Editorial, Languages in Schools. CHI. DAILY TRIB., June 6, 1923, at 8.
323. Editorial, A Decision for Liberty, WORLD, June 6, 1923, at 12; see also The Week, supra note 201, at 57 ("The acts prohibiting the teaching of foreign languages sprang out of a war hysteria that did us small credit."); Editorial, NEW REPUBLIC, supra note 201, at 57; Editorial, NATION, supra note 201, at 682 ; Editorial. The Right to Learn Foreign Tongues, N.Y. TIMES, June 6, 1923, at 20; Editorial, Languages in Schools. CHI. DAILY TRIB., June 6, 1923, at 8.
324. Editorial, A Decision for Liberty, WORLD, June 6, 1923, at 12; see also The Week, supra note 201, at 57 ("The acts prohibiting the teaching of foreign languages sprang out of a war hysteria that did us small credit."); Editorial, NEW REPUBLIC, supra note 201, at 57; Editorial, NATION, supra note 201, at 682 ; Editorial. The Right to Learn Foreign Tongues, N.Y. TIMES, June 6, 1923, at 20; Editorial, Languages in Schools. CHI. DAILY TRIB., June 6, 1923, at 8.
325. Editorial, A Decision for Liberty, WORLD, June 6, 1923, at 12; see also The Week, supra note 201, at 57 ("The acts prohibiting the teaching of foreign languages sprang out of a war hysteria that did us small credit."); Editorial, NEW REPUBLIC, supra note 201, at 57; Editorial, NATION, supra note 201, at 682 ; Editorial. The Right to Learn Foreign Tongues, N.Y. TIMES, June 6, 1923, at 20; Editorial, Languages in Schools. CHI. DAILY TRIB., June 6, 1923, at 8.
326. Death of the Oregon School Law, 85 LITERARY DIG. 1, 1 (June 13, 1925).
327. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 243-45 (1972) (Douglas, J., dissenting).
328. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
329. For an excellent discussion of how the legal constitution of such practices have been protected under the rubric of privacy, see Reva B. Siegel, The Rule of Love: Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2118-19 (1996).
330. For a discussion of this distinction, see POST, supra note 157, at 10-11.
331. I THE WORKS OF JAMES WILSON 184 (Robert Green McCloskey ed., 1967). Wilson continues: "On what can long and general custom be founded? Unquestionably, on nothing else, but free and voluntary consent." Id.
332. See id. at 348; see also CHARLES B. GOODRICH, THE SCIENCE OF GOVERNMENT AS EXHIBITED IN THE INSTITUTIONS OF THE UNITED STATES OF AMERICA 239 (1853); ZEPHANIAH SWIFT, I SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT 40 (Windham Press 1795).
333. See id. at 348; see also CHARLES B. GOODRICH, THE SCIENCE OF GOVERNMENT AS EXHIBITED IN THE INSTITUTIONS OF THE UNITED STATES OF AMERICA 239 (1853); ZEPHANIAH SWIFT, I SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT 40 (Windham Press 1795).
334. For a good discussion of this tradition, see WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA 19-50, 235-48 (1996). Contemporaries tended to regard the pre-New Deal Court's protection of common law principles as privileging an individualist form of natural rights. See, e.g., Roscoe Pound, The End of Law as Developed in Juristic Thought, 21 HARV. L. REV. 605, 626-27 (1914): Perhaps nothing has contributed so much to create and foster hostility to courts and law and constitutions as this conception of the courts as guardians of individual natural rights against the state and against society, . . . of constitutions as declaratory of common-law principles, which are also natural-law principles, anterior to the state and of superior validity to enactments by the authority of the state, having for their purpose to guarantee and maintain natural rights of individuals against the government and all its agencies. On the account I am developing, however, common law principles do not so much stand for natural law principles of individualism, as they embody the social practices through which persons acquire and sustain their individuality. The difference can plainly be seen in a decision like Butler v. Perry, 240 U.S. 328 (1916), in which a unanimous Court, speaking through Justice McReynolds, upheld a Florida statute requiring males between twenty-one and forty-five years of age "to work on the roads and bridges of the several counties for six days" a year. Id. at 329. McReynolds noted that conscription for road work was a traditional form of tax and that the statute "introduced no novel doctrine." Id. at 333. "[T]o require work on public roads has never been regarded as a deprivation of either liberty or property." Id. Because the Fourteenth "Amendment was intended to preserve and protect fundamental rights long recognized under the common law," there was no violation of due process of law. Id. Needless to say, this reasoning is sharply inconsistent with any constitutional view of the common law as embodying a philosophy of "natural rights of individuals against the government and all its agencies." Id.
335. For a good discussion of this tradition, see WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA 19-50, 235-48 (1996). Contemporaries tended to regard the pre-New Deal Court's protection of common law principles as privileging an individualist form of natural rights. See, e.g., Roscoe Pound, The End of Law as Developed in Juristic Thought, 21 HARV. L. REV. 605, 626-27 (1914): Perhaps nothing has contributed so much to create and foster hostility to courts and law and constitutions as this conception of the courts as guardians of individual natural rights against the state and against society, . . . of constitutions as declaratory of common-law principles, which are also natural-law principles, anterior to the state and of superior validity to enactments by the authority of the state, having for their purpose to guarantee and maintain natural rights of individuals against the government and all its agencies. On the account I am developing, however, common law principles do not so much stand for natural law principles of individualism, as they embody the social practices through which persons acquire and sustain their individuality. The difference can plainly be seen in a decision like Butler v. Perry, 240 U.S. 328 (1916), in which a unanimous Court, speaking through Justice McReynolds, upheld a Florida statute requiring males between twenty-one and forty-five years of age "to work on the roads and bridges of the several counties for six days" a year. Id. at 329. McReynolds noted that conscription for road work was a traditional form of tax and that the statute "introduced no novel doctrine." Id. at 333. "[T]o require work on public roads has never been regarded as a deprivation of either liberty or property." Id. Because the Fourteenth "Amendment was intended to preserve and protect fundamental rights long recognized under the common law," there was no violation of due process of law. Id. Needless to say, this reasoning is sharply inconsistent with any constitutional view of the common law as embodying a philosophy of "natural rights of individuals against the government and all its agencies." Id.
336. Cline v. Frink Dairy Co., 274 U.S. 445, 464 (1927).
337. George Soule, Hard Boiled Radicalism, 65 NEW REPUBLIC 261, 265 (Jan. 21, 1931).
338. See, e.g., NOVAK, supra note 236, at 235-48; STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982); LOREN P. BETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION, 1877-1920 (1971).
339. See, e.g., NOVAK, supra note 236, at 235-48; STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982); LOREN P. BETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION, 1877-1920 (1971).
340. See, e.g., NOVAK, supra note 236, at 235-48; STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920 (1982); LOREN P. BETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION, 1877-1920 (1971).
341. President Hughes Responds for the Association, 10 A.B.A. J. 567, 569 (1924).
342. Id. Hughes continued: "There is still the need to recognize the ancient right - and it is the most precious right of democracy - the right to be governed by law and not by officials - the right to reasonable, definite and proclaimed standards which the citizens can invoke against both malevolence and caprice. We of the common law respect authority, but it is the authority of the legal order. We respect those who in station high or humble execute the law - because it is our law." Id. Notice that in this formulation the legal order itself acquires legitimacy by embodying experience that is shared and that therefore creates, as James Wilson asserted, a sense of "consent" and authorship. See WORKS OF WILSON supra, note 234. Legal requirements coming from outside that experience are figured as willful impositions and as therefore potentially arbitrary. Notably absent from this formulation is any notion of the shared authorship of a common democratic will. With the possible exception of Brandeis' concurring opinion in Whitney v. California, 274 U.S. 357 (1927), this notion does not appear in the jurisprudence of the Taft Court. Its development will await the First Amendment opinions of the next decade. On the theoretical and sociological priority of community norms to both democratic legitimacy and judicial review, see Robert Post, Democracy, Popular Sovereignty, and Judicial Review, 86 CAL. L. REV. 429, 437-42 (1998).
343. President Hughes, supra note 240, at 569.
344. See, e.g., Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116 (1927); Missouri Pac. R.R. Co. v. Porter, 273 U.S. 341, 346 (1927); International Stevedoring Co. v. Haverty, 272 U.S. 50, 52 (1926). But see Panama R.R. Co. v. Rock, 266 U.S. 209 (1924) (holding that a statute should be construed in accordance with common law).
345. Meyer v. Nebraska, 262 U.S. 390, 400 (1923). Note in this regard Taft's careful qualification that Meyer only prevented "the Legislature from forbidding a parent to employ a private school or private school teacher to teach his child any subject matter which is not itself vicious." Letter
346. Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).
347. Coppage v. Kansas, 236 U.S. 1, 17-18 (1915).
348. Id.
349. Leonard v. Earle, 279 U.S. 392, 396 (1929). And the Taft Court was willing to rely on the judgment "of experts" in order to sustain such regulation. Id. at 393.
350. 274 U.S. 1 (1927).
351. Id. at 8.
352. PASCAL'S PENSEES 72 (Martin Turnell trans., 1962). Pascal continues: "That is the mystic foundation of its authority. Anyone who tries to trace it back to its first principles will destroy it." Id.
353. 261 U.S. 525 (1923).
354. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399-400 (1937) (emphasis added).
355. Adkins v. Children's Hosp., 261 U.S. at 558 (emphasis added). "To sustain the individual freedom of action contemplated by the Constitution," wrote Sutherland, "is not to strike down the common good, but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members." Id. at 561. The political implications of this cultural understanding are made characteristically explicit by the lower court opinion in the case: "The tendency of the times to socialize property rights under the subterfuge of police regulations is dangerous, and if continued will prove destructive of our free institutions. . . . [W]hen the citizen is deprived of the free use and enjoyment of his property, anarchy and revolution follow, and life and liberty are without protection." Children's Hosp. v. Adkins, 284 F. 613, 622 (App. D.C. 1922).
356. See, e.g., C. Edwin Baker, Property and Its Relation to Constitutionally Protected Liberty, 134 U. PA. L. REV. 741 (1986).
357. I qualify this statement because by the end of the decade the Taft Court had begun to issue highly controversial decisions constricting rate regulation with respect to public utilities otherwise affected with a public interest. The premise of these decisions was that "the property of a public utility, although devoted to the public service and impressed with a public interest, is still private property." United Ry. & Elec. Co. v. West, 280 U.S. 234, 249 (1930). As the Court moved progressively to the right, this theme became more pronounced. See, e.g., Delaware, Lackawanna & W. R.R. v. Morristown, 276 U.S. 182, 193-94 (1928); see also Letter from Van Devanter to Taft, supra note 131.
358. Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522, 539 (1923).
359. 272 U.S. 365 (1926). For historical background on the case, see Arthur V.M. Brooks, The Office File Box-Emanations from the Battlefield, in ZONING AND THE AMERICAN DREAM 3-30 (Charles M. Haar & Jerold S. Kayden eds., 1989); William M. Randle, Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid v. Ambler, in id. at 31-70; Timothy Alan Fluck, Euclid v. Ambler: A Retrospective, 52 J. AM. PLAN. ASS'N 326, 326 (Summer 1986); Michael Allan Wolf, 'COMPELLED BY CONSCIENTIOUS DUTY': VILLAGE OF EUCLID v. AMBLER REALTY CO. AS ROMANCE, 2 J. S. CT. HIST. 88 (1997); Martha A. Lees, Preserving Property Values? Preserving Proper Homes? Preserving Privilege?: The Pre-Euclid Debate Over Zoning for Exclusively Private Residential Areas, 1916-1926, 56 U. PITT. L. REV. 367, 369 (1994).
360. 272 U.S. 365 (1926). For historical background on the case, see Arthur V.M. Brooks, The Office File Box-Emanations from the Battlefield, in ZONING AND THE AMERICAN DREAM 3-30 (Charles M. Haar & Jerold S. Kayden eds., 1989); William M. Randle, Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid v. Ambler, in id. at 31-70; Timothy Alan Fluck, Euclid v. Ambler: A Retrospective, 52 J. AM. PLAN. ASS'N 326, 326 (Summer 1986); Michael Allan Wolf, 'COMPELLED BY CONSCIENTIOUS DUTY': VILLAGE OF EUCLID v. AMBLER REALTY CO. AS ROMANCE, 2 J. S. CT. HIST. 88 (1997); Martha A. Lees, Preserving Property Values? Preserving Proper Homes? Preserving Privilege?: The Pre-Euclid Debate Over Zoning for Exclusively Private Residential Areas, 1916-1926, 56 U. PITT. L. REV. 367, 369 (1994).
361. 272 U.S. 365 (1926). For historical background on the case, see Arthur V.M. Brooks, The Office File Box-Emanations from the Battlefield, in ZONING AND THE AMERICAN DREAM 3-30 (Charles M. Haar & Jerold S. Kayden eds., 1989); William M. Randle, Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid v. Ambler, in id. at 31-70; Timothy Alan Fluck, Euclid v. Ambler: A Retrospective, 52 J. AM. PLAN. ASS'N 326, 326 (Summer 1986); Michael Allan Wolf, 'COMPELLED BY CONSCIENTIOUS DUTY': VILLAGE OF EUCLID v. AMBLER REALTY CO. AS ROMANCE, 2 J. S. CT. HIST. 88 (1997); Martha A. Lees, Preserving Property Values? Preserving Proper Homes? Preserving Privilege?: The Pre-Euclid Debate Over Zoning for Exclusively Private Residential Areas, 1916-1926, 56 U. PITT. L. REV. 367, 369 (1994).
362. 272 U.S. 365 (1926). For historical background on the case, see Arthur V.M. Brooks, The Office File Box-Emanations from the Battlefield, in ZONING AND THE AMERICAN DREAM 3-30 (Charles M. Haar & Jerold S. Kayden eds., 1989); William M. Randle, Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid v. Ambler, in id. at 31-70; Timothy Alan Fluck, Euclid v. Ambler: A Retrospective, 52 J. AM. PLAN. ASS'N 326, 326 (Summer 1986); Michael Allan Wolf, 'COMPELLED BY CONSCIENTIOUS DUTY': VILLAGE OF EUCLID v. AMBLER REALTY CO. AS ROMANCE, 2 J. S. CT. HIST. 88 (1997); Martha A. Lees, Preserving Property Values? Preserving Proper Homes? Preserving Privilege?: The Pre-Euclid Debate Over Zoning for Exclusively Private Residential Areas, 1916-1926, 56 U. PITT. L. REV. 367, 369 (1994).
363. 272 U.S. 365 (1926). For historical background on the case, see Arthur V.M. Brooks, The Office File Box-Emanations from the Battlefield, in ZONING AND THE AMERICAN DREAM 3-30 (Charles M. Haar & Jerold S. Kayden eds., 1989); William M. Randle, Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid v. Ambler, in id. at 31-70; Timothy Alan Fluck, Euclid v. Ambler: A Retrospective, 52 J. AM. PLAN. ASS'N 326, 326 (Summer 1986); Michael Allan Wolf, 'COMPELLED BY CONSCIENTIOUS DUTY': VILLAGE OF EUCLID v. AMBLER REALTY CO. AS ROMANCE, 2 J. S. CT. HIST. 88 (1997); Martha A. Lees, Preserving Property Values? Preserving Proper Homes? Preserving Privilege?: The Pre-Euclid Debate Over Zoning for Exclusively Private Residential Areas, 1916-1926, 56 U. PITT. L. REV. 367, 369 (1994).
364. Euclid, 272 U.S. at 388. Justices Van Devanter, McReynolds, and Butler dissented without opinion. Alfred McCormick, Stone's law clerk that Term, has written that "Justice Sutherland . . . was writing an opinion for the majority in Village of Euclid v. Ambler Realty Co., holding the zoning ordinance unconstitutional, when talks with his dissenting brethren (principally Stone. I believe) shook his convictions and led him to request a reargument, after which he changed his mind and the ordinance was upheld." Alfred McCormack, A Law Clerk's Recollections, 46 COLUM. L. REV. 710, 712 (1946). McCormick's account must be read in light of a memorandum that Sutherland sent to Taft in April 1925, some nine months before Euclid was argued. The memorandum concerned the upcoming argument of New York ex rel. Rosevale Realty Co. v. Kleinhert, 268 U.S. 646 (1925), which was a case involving the constitutionality of a zoning ordinance. Although the Court ultimately chose to dismiss the case on procedural grounds, Sutherland wrote to Taft that "[i]n the modern development of cities and towns, zoning laws are universally recognized as necessary and proper. The question presented by the law under review is a matter of degree, and I am not prepared to say that the judgment of the local law-makers was arbitrarily exercised." Memorandum from Sutherland to Taft (Taft Papers, Reel 273). For other difficulties with the McCormick account, see Fluck, supra note 258, at 331-32 (suggesting that the reargument was ordered to provide the Court with both time to further deliberate the constitutional implications of zoning and the opportunity for an interested party to submit an amicus curiae brief to further clarify the obscurities of zoning).
365. Euclid, 272 U.S. at 388. Justices Van Devanter, McReynolds, and Butler dissented without opinion. Alfred McCormick, Stone's law clerk that Term, has written that "Justice Sutherland . . . was writing an opinion for the majority in Village of Euclid v. Ambler Realty Co., holding the zoning ordinance unconstitutional, when talks with his dissenting brethren (principally Stone. I believe) shook his convictions and led him to request a reargument, after which he changed his mind and the ordinance was upheld." Alfred McCormack, A Law Clerk's Recollections, 46 COLUM. L. REV. 710, 712 (1946). McCormick's account must be read in light of a memorandum that Sutherland sent to Taft in April 1925, some nine months before Euclid was argued. The memorandum concerned the upcoming argument of New York ex rel. Rosevale Realty Co. v. Kleinhert, 268 U.S. 646 (1925), which was a case involving the constitutionality of a zoning ordinance. Although the Court ultimately chose to dismiss the case on procedural grounds, Sutherland wrote to Taft that "[i]n the modern development of cities and towns, zoning laws are universally recognized as necessary and proper. The question presented by the law under review is a matter of degree, and I am not prepared to say that the judgment of the local law-makers was arbitrarily exercised." Memorandum from Sutherland to Taft (Taft Papers, Reel 273). For other difficulties with the McCormick account, see Fluck, supra note 258, at 331-32 (suggesting that the reargument was ordered to provide the Court with both time to further deliberate the constitutional implications of zoning and the opportunity for an interested party to submit an amicus curiae brief to further clarify the obscurities of zoning).
366. Euclid, 272 U.S. at 389.
367. Id. at 394.
368. Id. at 387. While forthrightly acknowledging that "the law of nuisances" was not "controlling," Sutherland even went so far as to suggest that nuisance law could possibly be reinterpreted as involving issues of systematic interdependence, so that a "a nuisance may be merely a right thing in the wrong place, - like a pig in the parlor instead of the barnyard." Id. at 387-88 (emphasis added).
369. Id. at 388.
370. Id. at 395.
371. Id. at 394. No doubt Sutherland's willingness to acknowledge the interdependence of urban land was connected to his sympathy for the managerial goals of using neutral zoning laws to achieve class and ethnic segregation. See Michael Allan Wolf, The Pre-science and Centrality of Euclid v. Ambler, in ZONING, supra note 258, at 252-77. Yet before leaping to merely cynical conclusions, one must also keep in mind that Sutherland's evident sympathy for the managerial goal of exercising public control of labor unrest was not sufficient for him to impose managerial controls on labor in Wolff Packing.
372. Edwin Corwin, Social Planning Under the Constitution, 26 AM. POL. SCI. REV. 1, 21 (1932). Michael Allan Wolf notes how "in many ways, Euclidean zoning is a quintessential Progressive concept," in part because of "the reliance on experts to craft and enforce a regulatory scheme." Wolf, supra note 265, at 255.
373. See ROBERT AVERILL WALKER, THE PLANNING FUNCTION IN URBAN GOVERNMENT 77-80 (1941). For a contrary view, see Charles M. Haar, Reflections on Euclid: Social Contract and Private Purpose, in ZONING, supra note 258, at 336 ("The Court seemed to accept fully the thrust of Bettman's argument in his brief that zoning is a form of nuisance cataloging, a legislative declaration and codification, as it were, of the common law rules about the compatibilities and incompatibiilties of land uses."). On the distinction between the nuisance and "social engineering" approaches in the briefing of the case, see Garrett Power, Advocates at Cross-Purposes: The Briefs on Behalf of Zoning in the Supreme Court, 2 J. SUP. CT. HIST. 79 (1997).
374. See ROBERT AVERILL WALKER, THE PLANNING FUNCTION IN URBAN GOVERNMENT 77-80 (1941). For a contrary view, see Charles M. Haar, Reflections on Euclid: Social Contract and Private Purpose, in ZONING, supra note 258, at 336 ("The Court seemed to accept fully the thrust of Bettman's argument in his brief that zoning is a form of nuisance cataloging, a legislative declaration and codification, as it were, of the common law rules about the compatibilities and incompatibiilties of land uses."). On the distinction between the nuisance and "social engineering" approaches in the briefing of the case, see Garrett Power, Advocates at Cross-Purposes: The Briefs on Behalf of Zoning in the Supreme Court, 2 J. SUP. CT. HIST. 79 (1997).
375. See ROBERT AVERILL WALKER, THE PLANNING FUNCTION IN URBAN GOVERNMENT 77-80 (1941). For a contrary view, see Charles M. Haar, Reflections on Euclid: Social Contract and Private Purpose, in ZONING, supra note 258, at 336 ("The Court seemed to accept fully the thrust of Bettman's argument in his brief that zoning is a form of nuisance cataloging, a legislative declaration and codification, as it were, of the common law rules about the compatibilities and incompatibiilties of land uses."). On the distinction between the nuisance and "social engineering" approaches in the briefing of the case, see Garrett Power, Advocates at Cross-Purposes: The Briefs on Behalf of Zoning in the Supreme Court, 2 J. SUP. CT. HIST. 79 (1997).
376. Note, Constitutional Regulation of Fees of Employment Agencies, 14 CORNELL L. Q. 75, 80 n.36 (1928); see also Robert E. Cushman, Constitutional Law in 1926-1927, 22 AM. POL. SCI. REV. 70, 94 (Feb. 1928) ("The opinion of Mr. Justice Sutherland embodies a most liberal attitude toward the states' police power. In fact, it is hard to realize that he is the same justice who wrote the majority opinions in Tyson and . . . Adkins.").
377. Note, Constitutional Regulation of Fees of Employment Agencies, 14 CORNELL L. Q. 75, 80 n.36 (1928); see also Robert E. Cushman, Constitutional Law in 1926-1927, 22 AM. POL. SCI. REV. 70, 94 (Feb. 1928) ("The opinion of Mr. Justice Sutherland embodies a most liberal attitude toward the states' police power. In fact, it is hard to realize that he is the same justice who wrote the majority opinions in Tyson and . . . Adkins.").
378. Dayton-Goose Creek Ry. Co. v. United States, 263 U.S. 456, 485 (1924). For a discussion of this point, see supra note 105.
379. German Alliance Ins. Co. v. Kansas, 233 U.S. 389, 414 (1914). For a discussion of this point, see supra note 96
380. CASS SUNSTEIN, THE PARTIAL CONSTITUTION 45, 46 (1993).