The road to Euclid v. Ambler: City planning, state-building, and the changing scope of the police power

Studies in American Political Development

Volumn 13, Issue 1, 1999, Pages 50-145

  Revell, Keith D ^a  

^a NONE

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EID: 0033441375     PISSN: 0898588X     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0898588x99001960     Document Type: Article

References (357)

1. Appended Report, Zoning and Districting, Minutes of the Heights of Buildings Commission, June 9, 1913, Heights of Buildings Commission, New York City Municipal Archives, Box 2507.
2. Carol Willis, "Zoning and Zeitgeist: The Skyscraper in the 1920s," Journal of the Society of Architectural Historians 45 (1986): 47-59.
3. Mel Scott, American City Planning Since 1890 (Berkeley: University of California Press, 1971), 249.
4. Euclid v. Ambler, 272 U.S. 365.
5. Bernard H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), 128-32, 150-54; Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985), 129-34; Scott, American City Planning Since 1890, 152-60; A. Dan Tarlock, "Euclid Revisited," Land Use Law and Zoning Digest 34 (1982): 4-8.
6. Bernard H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), 128-32, 150-54; Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985), 129-34; Scott, American City Planning Since 1890, 152-60; A. Dan Tarlock, "Euclid Revisited," Land Use Law and Zoning Digest 34 (1982): 4-8.
7. Bernard H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), 128-32, 150-54; Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985), 129-34; Scott, American City Planning Since 1890, 152-60; A. Dan Tarlock, "Euclid Revisited," Land Use Law and Zoning Digest 34 (1982): 4-8.
8. Bernard H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), 128-32, 150-54; Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985), 129-34; Scott, American City Planning Since 1890, 152-60; A. Dan Tarlock, "Euclid Revisited," Land Use Law and Zoning Digest 34 (1982): 4-8.
9. Raphaël Fischler makes a similar argument in "The Metropolitan Dimension of Early Zoning: Revisiting the 1916 New York Zoning Ordinance," Journal of the American Planning Association 64 (1998): 170-88, and "Health, Safety, and the General Welfare: Markets, Politics, and Social Science in Early Land-Use Regulation and Community Design," Journal of Urban History 24 (1998): 675-719. From Fischler's perspective, Bassett's main goal was the segregation of social classes via residential land use districting.
10. Raphaël Fischler makes a similar argument in "The Metropolitan Dimension of Early Zoning: Revisiting the 1916 New York Zoning Ordinance," Journal of the American Planning Association 64 (1998): 170-88, and "Health, Safety, and the General Welfare: Markets, Politics, and Social Science in Early Land-Use Regulation and Community Design," Journal of Urban History 24 (1998): 675-719. From Fischler's perspective, Bassett's main goal was the segregation of social classes via residential land use districting.
11. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (Cambridge: Cambridge University Press, 1982).
12. On the interaction of constitutional change and state-building, see Howard Gillman, "The Collapse of Constitutional Originalism and the Rise of the Notion of the 'Living Constitution' in the Course of American State-Building," Studies in American Political Development 11 (1997): 191-247, esp. 192-97.
13. For the argument that political institutions, including public law, are "relatively autonomous" from competition among socio-economic groups, see James G. March and Johan P. Olsen, "The New Institutionalism: Organizational Factors in Political Life," American Political Science Review 78 (1984); 734-49; Theda Skocpol, "Bringing the State Back In: Strategies of Analysis in Current Research," in Bringing the State Back In, ed. Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985), 3-37; Rogers M. Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," American Political Science Review 82 (1988): 89-108; and Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125.
14. For the argument that political institutions, including public law, are "relatively autonomous" from competition among socio-economic groups, see James G. March and Johan P. Olsen, "The New Institutionalism: Organizational Factors in Political Life," American Political Science Review 78 (1984); 734-49; Theda Skocpol, "Bringing the State Back In: Strategies of Analysis in Current Research," in Bringing the State Back In, ed. Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985), 3-37; Rogers M. Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," American Political Science Review 82 (1988): 89-108; and Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125.
15. For the argument that political institutions, including public law, are "relatively autonomous" from competition among socio-economic groups, see James G. March and Johan P. Olsen, "The New Institutionalism: Organizational Factors in Political Life," American Political Science Review 78 (1984); 734-49; Theda Skocpol, "Bringing the State Back In: Strategies of Analysis in Current Research," in Bringing the State Back In, ed. Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985), 3-37; Rogers M. Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," American Political Science Review 82 (1988): 89-108; and Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125.
16. For the argument that political institutions, including public law, are "relatively autonomous" from competition among socio-economic groups, see James G. March and Johan P. Olsen, "The New Institutionalism: Organizational Factors in Political Life," American Political Science Review 78 (1984); 734-49; Theda Skocpol, "Bringing the State Back In: Strategies of Analysis in Current Research," in Bringing the State Back In, ed. Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985), 3-37; Rogers M. Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," American Political Science Review 82 (1988): 89-108; and Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125.
17. For a discussion of institutional structures as a form of social capital, see Stephen D. Krasner, "Approaches to the State: Alternative Conceptions and Historical Dynamics," Comparative Politics 16 (1984): 235.
18. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), 16-17.
19. On the problem of accommodating legal change in a constitutional order that claims to be based on unchanging principles, see Morton J. Horwitz, "Foreword: The Constitution of Change: Legal Fundamentality without Fundamentalism," Harvard Law Review 107 (1993): 32-117, esp. 32-36. For a discussion of the problem of legitimacy, see Paul W. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory (New Haven: Yale University Press, 1992), esp. 97-170; and Lucian W. Pye, "The Legitimacy Crisis," in Crisis and Sequences in Political Development (Princeton: Princeton University Press, 1971), 135-58.
20. On the problem of accommodating legal change in a constitutional order that claims to be based on unchanging principles, see Morton J. Horwitz, "Foreword: The Constitution of Change: Legal Fundamentality without Fundamentalism," Harvard Law Review 107 (1993): 32-117, esp. 32-36. For a discussion of the problem of legitimacy, see Paul W. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory (New Haven: Yale University Press, 1992), esp. 97-170; and Lucian W. Pye, "The Legitimacy Crisis," in Crisis and Sequences in Political Development (Princeton: Princeton University Press, 1971), 135-58.
21. On the problem of accommodating legal change in a constitutional order that claims to be based on unchanging principles, see Morton J. Horwitz, "Foreword: The Constitution of Change: Legal Fundamentality without Fundamentalism," Harvard Law Review 107 (1993): 32-117, esp. 32-36. For a discussion of the problem of legitimacy, see Paul W. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory (New Haven: Yale University Press, 1992), esp. 97-170; and Lucian W. Pye, "The Legitimacy Crisis," in Crisis and Sequences in Political Development (Princeton: Princeton University Press, 1971), 135-58.
22. On the issue of pieces of the older remaining within emerging institutional configurations, see Karen Orren and Stephen Skowroneck, "Beyond the Iconography of Order: Notes for a 'New Institutionalism,'" in The Dynamics of American Politics: Approaches and Interpretations, ed. Lawrence C. Dodd and Calvin Jillson (Boulder, Colo.: Westview Press, 1994), 311-30.
23. On policy feedbacks, see Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Belknap Press, 1992), 57-59; Theda Skocpol and Edwin Amenta, "States and Social Policies," Annual Review of Sociology 12 (1986): 131-57; Paul Pierson, "When Effect Becomes Cause: Policy Feedback and Political Change," World Politics 45 (1993): 595-628; and idem, Dismantling the Welfare State? Reagan, Thatcher, and the Politics of Retrenchment (Cambridge: Cambridge University Press 1994).
24. On policy feedbacks, see Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Belknap Press, 1992), 57-59; Theda Skocpol and Edwin Amenta, "States and Social Policies," Annual Review of Sociology 12 (1986): 131-57; Paul Pierson, "When Effect Becomes Cause: Policy Feedback and Political Change," World Politics 45 (1993): 595-628; and idem, Dismantling the Welfare State? Reagan, Thatcher, and the Politics of Retrenchment (Cambridge: Cambridge University Press 1994).
25. On policy feedbacks, see Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Belknap Press, 1992), 57-59; Theda Skocpol and Edwin Amenta, "States and Social Policies," Annual Review of Sociology 12 (1986): 131-57; Paul Pierson, "When Effect Becomes Cause: Policy Feedback and Political Change," World Politics 45 (1993): 595-628; and idem, Dismantling the Welfare State? Reagan, Thatcher, and the Politics of Retrenchment (Cambridge: Cambridge University Press 1994).
26. On policy feedbacks, see Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Belknap Press, 1992), 57-59; Theda Skocpol and Edwin Amenta, "States and Social Policies," Annual Review of Sociology 12 (1986): 131-57; Paul Pierson, "When Effect Becomes Cause: Policy Feedback and Political Change," World Politics 45 (1993): 595-628; and idem, Dismantling the Welfare State? Reagan, Thatcher, and the Politics of Retrenchment (Cambridge: Cambridge University Press 1994).
27. Hugh Heclo, Modern Social Politics in Britain and Sweden (New Haven: Yale University Press, 1974), 284-322: Politics finds its sources not only in power but also in uncertainty - men collectively wondering what to do. Finding feasible courses of action includes, but is more than, locating which way the vectors of political pressure are pushing. Governments not only 'power' (or whatever the verb form of that approach might be); they also puzzle. Policy-making is a form of collective puzzlement on society's behalf; it entails both deciding and knowing. (305) In my view, this applies with equal force to state-building strategies. See also Pierson, "When Effect Becomes Cause," 611-19; and Peter A. Hall, "Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain," Comparative Politics 25 (1993): 275-96.
28. Hugh Heclo, Modern Social Politics in Britain and Sweden (New Haven: Yale University Press, 1974), 284-322: Politics finds its sources not only in power but also in uncertainty - men collectively wondering what to do. Finding feasible courses of action includes, but is more than, locating which way the vectors of political pressure are pushing. Governments not only 'power' (or whatever the verb form of that approach might be); they also puzzle. Policy-making is a form of collective puzzlement on society's behalf; it entails both deciding and knowing. (305) In my view, this applies with equal force to state-building strategies. See also Pierson, "When Effect Becomes Cause," 611-19; and Peter A. Hall, "Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain," Comparative Politics 25 (1993): 275-96.
29. Hugh Heclo, Modern Social Politics in Britain and Sweden (New Haven: Yale University Press, 1974), 284-322: Politics finds its sources not only in power but also in uncertainty - men collectively wondering what to do. Finding feasible courses of action includes, but is more than, locating which way the vectors of political pressure are pushing. Governments not only 'power' (or whatever the verb form of that approach might be); they also puzzle. Policy-making is a form of collective puzzlement on society's behalf; it entails both deciding and knowing. (305) In my view, this applies with equal force to state-building strategies. See also Pierson, "When Effect Becomes Cause," 611-19; and Peter A. Hall, "Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain," Comparative Politics 25 (1993): 275-96.
30. The term "technology of public action" comes from Hendrick Hartog, Public Property and Private Power: The Corporation of the City of New York in American law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983), 66. The comparison between policy and technology has been articulated by Pierson, "When Effect Becomes Cause," 607, and Douglass C. North, "Institutions," Journal of Economic Perspectives 5 (1991): 109, building on the work of Paul A. David, "Clio and the Economics of QWERTY," American Economic Review 75 (1985): 332-37: and W. Brian Arthur, "Competing Technologies, Increasing Returns, and Lock-In by Historical Events," Economic Journal 99 (1989): 116-31. The comprehensiveness rationale offered "increasing returns" to the coalition builders and local officials who used it, especially after Sutherland's decision in Euclid. In this sense, zoning became "locked in" to the health and safety strategy. This is not to say, however, that comprehensiveness served the same purpose wherever it was used. Not all zoning coalitions were the same. In some cases, property owners obviously played a lead role in designing ordinances; in others, such as Euclid, key real estate owners were clearly left out of zoning efforts and had to fight them in court. My intention here is not to explore every one of those political mobilization efforts, but to assess their impact on the larger problem of institutional supremacy between courts and bureaucracies through the cases they produced.
31. The term "technology of public action" comes from Hendrick Hartog, Public Property and Private Power: The Corporation of the City of New York in American law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983), 66. The comparison between policy and technology has been articulated by Pierson, "When Effect Becomes Cause," 607, and Douglass C. North, "Institutions," Journal of Economic Perspectives 5 (1991): 109, building on the work of Paul A. David, "Clio and the Economics of QWERTY," American Economic Review 75 (1985): 332-37: and W. Brian Arthur, "Competing Technologies, Increasing Returns, and Lock-In by Historical Events," Economic Journal 99 (1989): 116-31. The comprehensiveness rationale offered "increasing returns" to the coalition builders and local officials who used it, especially after Sutherland's decision in Euclid. In this sense, zoning became "locked in" to the health and safety strategy. This is not to say, however, that comprehensiveness served the same purpose wherever it was used. Not all zoning coalitions were the same. In some cases, property owners obviously played a lead role in designing ordinances; in others, such as Euclid, key real estate owners were clearly left out of zoning efforts and had to fight them in court. My intention here is not to explore every one of those political mobilization efforts, but to assess their impact on the larger problem of institutional supremacy between courts and bureaucracies through the cases they produced.
32. The term "technology of public action" comes from Hendrick Hartog, Public Property and Private Power: The Corporation of the City of New York in American law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983), 66. The comparison between policy and technology has been articulated by Pierson, "When Effect Becomes Cause," 607, and Douglass C. North, "Institutions," Journal of Economic Perspectives 5 (1991): 109, building on the work of Paul A. David, "Clio and the Economics of QWERTY," American Economic Review 75 (1985): 332-37: and W. Brian Arthur, "Competing Technologies, Increasing Returns, and Lock-In by Historical Events," Economic Journal 99 (1989): 116-31. The comprehensiveness rationale offered "increasing returns" to the coalition builders and local officials who used it, especially after Sutherland's decision in Euclid. In this sense, zoning became "locked in" to the health and safety strategy. This is not to say, however, that comprehensiveness served the same purpose wherever it was used. Not all zoning coalitions were the same. In some cases, property owners obviously played a lead role in designing ordinances; in others, such as Euclid, key real estate owners were clearly left out of zoning efforts and had to fight them in court. My intention here is not to explore every one of those political mobilization efforts, but to assess their impact on the larger problem of institutional supremacy between courts and bureaucracies through the cases they produced.
33. The term "technology of public action" comes from Hendrick Hartog, Public Property and Private Power: The Corporation of the City of New York in American law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983), 66. The comparison between policy and technology has been articulated by Pierson, "When Effect Becomes Cause," 607, and Douglass C. North, "Institutions," Journal of Economic Perspectives 5 (1991): 109, building on the work of Paul A. David, "Clio and the Economics of QWERTY," American Economic Review 75 (1985): 332-37: and W. Brian Arthur, "Competing Technologies, Increasing Returns, and Lock-In by Historical Events," Economic Journal 99 (1989): 116-31. The comprehensiveness rationale offered "increasing returns" to the coalition builders and local officials who used it, especially after Sutherland's decision in Euclid. In this sense, zoning became "locked in" to the health and safety strategy. This is not to say, however, that comprehensiveness served the same purpose wherever it was used. Not all zoning coalitions were the same. In some cases, property owners obviously played a lead role in designing ordinances; in others, such as Euclid, key real estate owners were clearly left out of zoning efforts and had to fight them in court. My intention here is not to explore every one of those political mobilization efforts, but to assess their impact on the larger problem of institutional supremacy between courts and bureaucracies through the cases they produced.
34. The term "technology of public action" comes from Hendrick Hartog, Public Property and Private Power: The Corporation of the City of New York in American law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983), 66. The comparison between policy and technology has been articulated by Pierson, "When Effect Becomes Cause," 607, and Douglass C. North, "Institutions," Journal of Economic Perspectives 5 (1991): 109, building on the work of Paul A. David, "Clio and the Economics of QWERTY," American Economic Review 75 (1985): 332-37: and W. Brian Arthur, "Competing Technologies, Increasing Returns, and Lock-In by Historical Events," Economic Journal 99 (1989): 116-31. The comprehensiveness rationale offered "increasing returns" to the coalition builders and local officials who used it, especially after Sutherland's decision in Euclid. In this sense, zoning became "locked in" to the health and safety strategy. This is not to say, however, that comprehensiveness served the same purpose wherever it was used. Not all zoning coalitions were the same. In some cases, property owners obviously played a lead role in designing ordinances; in others, such as Euclid, key real estate owners were clearly left out of zoning efforts and had to fight them in court. My intention here is not to explore every one of those political mobilization efforts, but to assess their impact on the larger problem of institutional supremacy between courts and bureaucracies through the cases they produced.
35. Skocpol, "Bringing the State Back In," 12.
36. It is well-known that the zoning movement that led to Euclid, which arose from an Ohio case, began with the 1916 zoning ordinance; see, for instance, Seymour I. Toll, Zoned America (New York: Grossman Publishers, 1969), 231.
37. Fischler argues that Bassett made key legal innovations to allow the ordinance to be used for segregating social classes; see "Health, Safety, and the General Welfare," 678, 690-96.
38. See Morton J. Horwitz, The Transformation of American Law, 1870-1960 (New York: Oxford University Press, 1992), esp. 9-31. See also Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993), which examines the changing scope of the police power, particularly the distinction between the valid public purposes of government restrictions on liberty and property and invalid "class legislation" designed to promote special or partial interests.
39. See Morton J. Horwitz, The Transformation of American Law, 1870-1960 (New York: Oxford University Press, 1992), esp. 9-31. See also Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993), which examines the changing scope of the police power, particularly the distinction between the valid public purposes of government restrictions on liberty and property and invalid "class legislation" designed to promote special or partial interests.
40. My treatment of public rights and the police power is derived from Harry N. Scheiber, "Public Rights and the Rule of Law in American Legal History," California Law Review 72 (1984): 217-51. For an illuminating treatment of the development of the police power, zoning, and planning, see Stanley K. Schultz, Constructing Urban Culture: American Cities and City Planning, 1800-1920 (Philadelphia: Temple University Press, 1989), 35-91. Schultz and I discuss many of the same cases in regard to the development of the police power, although I focus more on late-nineteenth- and early-twentieth-century cases and I give greater emphasis to the development of a public rights concept of the police power, the importance of the New York zoning effort in that development, and a more detailed explication of the relationship between experts-as-bureaucrats and the police power.
41. My treatment of public rights and the police power is derived from Harry N. Scheiber, "Public Rights and the Rule of Law in American Legal History," California Law Review 72 (1984): 217-51. For an illuminating treatment of the development of the police power, zoning, and planning, see Stanley K. Schultz, Constructing Urban Culture: American Cities and City Planning, 1800-1920 (Philadelphia: Temple University Press, 1989), 35-91. Schultz and I discuss many of the same cases in regard to the development of the police power, although I focus more on late-nineteenth- and early-twentieth-century cases and I give greater emphasis to the development of a public rights concept of the police power, the importance of the New York zoning effort in that development, and a more detailed explication of the relationship between experts-as-bureaucrats and the police power.
42. "To what extent [is] the Constitution of the United States in its present form a bar to the adoption of the most important social reform measures which have been made parts of the reform program of the most progressive people of the present day"? asked political scientist and reformer Frank Goodnow in his Social Reform and the Constitution (New York: Macmillan, 1911), 29.
43. Indeed, as legal scholar Charles Warren demonstrated in 1913, the Supreme Court upheld most new legislation; see Charles Warren, "The Progressiveness of the United States Supreme Court," Columbia Law Review 13 (1913): 294-313; and idem, "A Bulwark to the State Police Power - The United States Supreme Court," Columbia Law Review 13 (1913): 667-95.
44. Indeed, as legal scholar Charles Warren demonstrated in 1913, the Supreme Court upheld most new legislation; see Charles Warren, "The Progressiveness of the United States Supreme Court," Columbia Law Review 13 (1913): 294-313; and idem, "A Bulwark to the State Police Power - The United States Supreme Court," Columbia Law Review 13 (1913): 667-95.
45. A case made, to cite the only the most prominent example, by Edward S. Corwin, "The Basic Doctrine of American Constitutional Law," Michigan Law Review 12 (1914): 247-76.
46. My formulation of this problem has been shaped by Skowronek, Building a New American State; idem, "Order and Change," Polity 28 (1995): 91-96; Skocpol, Protecting Soldiers and Mothers and Joan G. Zimmerman, "The Jurisprudence of Equality: The Women's Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children's Hospital, 1905-1923," Journal of American History 78 (1991): 188-225
47. My formulation of this problem has been shaped by Skowronek, Building a New American State; idem, "Order and Change," Polity 28 (1995): 91-96; Skocpol, Protecting Soldiers and Mothers and Joan G. Zimmerman, "The Jurisprudence of Equality: The Women's Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children's Hospital, 1905-1923," Journal of American History 78 (1991): 188-225
48. My formulation of this problem has been shaped by Skowronek, Building a New American State; idem, "Order and Change," Polity 28 (1995): 91-96; Skocpol, Protecting Soldiers and Mothers and Joan G. Zimmerman, "The Jurisprudence of Equality: The Women's Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children's Hospital, 1905-1923," Journal of American History 78 (1991): 188-225
49. My formulation of this problem has been shaped by Skowronek, Building a New American State; idem, "Order and Change," Polity 28 (1995): 91-96; Skocpol, Protecting Soldiers and Mothers and Joan G. Zimmerman, "The Jurisprudence of Equality: The Women's Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children's Hospital, 1905-1923," Journal of American History 78 (1991): 188-225
50. Report of the Heights of Buildings Commission to the Committee on the Height, Size, and Arrangement of Buildings to the Board of Estimate and Apportionment of the City of New York (1913), 15; Gail Fenske and Deryck Holdsworth, "Corporate Identity and the New York Office Building: 1895-1915," in The Landscape of Modernity: Essays on New York City, 1900-1940, ed. David Ward and Olivier Zunz (New York: Russell Sage Foundation, 1992), 147-51.
51. Report of the Heights of Buildings Commission to the Committee on the Height, Size, and Arrangement of Buildings to the Board of Estimate and Apportionment of the City of New York (1913), 15; Gail Fenske and Deryck Holdsworth, "Corporate Identity and the New York Office Building: 1895-1915," in The Landscape of Modernity: Essays on New York City, 1900-1940, ed. David Ward and Olivier Zunz (New York: Russell Sage Foundation, 1992), 147-51.
52. See Keith D. Revell, "Regulating the Landscape: Real Estate Values, City Planning, and the 1916 Zoning Ordinance," in The Landscape of Modernity, 35-40; and idem, "Beyond Efficiency: Experts, Urban Planning, and Civic Culture in New York City, 1898-1933," (Ph.D. diss., University of Virginia, 1994), 269-71.
53. See Keith D. Revell, "Regulating the Landscape: Real Estate Values, City Planning, and the 1916 Zoning Ordinance," in The Landscape of Modernity, 35-40; and idem, "Beyond Efficiency: Experts, Urban Planning, and Civic Culture in New York City, 1898-1933," (Ph.D. diss., University of Virginia, 1994), 269-71.
54. See Commission on Building Districts and Restrictions, Final Report (June 2, 1916) Supplementary Edition (New York: Board of Estimate and Apportionment, Committee on the City Plan, 1916), 34, and the sources in footnote 18. Raphaël Fischler has argued that residential segregation was a dominant motive for Bassett and his colleagues; see "The Metropolitan Dimensions of Early Zoning," 173-78, and "Health, Safety, and the General Welfare," 678, 688-96.
55. See Commission on Building Districts and Restrictions, Final Report (June 2, 1916) Supplementary Edition (New York: Board of Estimate and Apportionment, Committee on the City Plan, 1916), 34, and the sources in footnote 18. Raphaël Fischler has argued that residential segregation was a dominant motive for Bassett and his colleagues; see "The Metropolitan Dimensions of Early Zoning," 173-78, and "Health, Safety, and the General Welfare," 678, 688-96.
56. See Commission on Building Districts and Restrictions, Final Report (June 2, 1916) Supplementary Edition (New York: Board of Estimate and Apportionment, Committee on the City Plan, 1916), 34, and the sources in footnote 18. Raphaël Fischler has argued that residential segregation was a dominant motive for Bassett and his colleagues; see "The Metropolitan Dimensions of Early Zoning," 173-78, and "Health, Safety, and the General Welfare," 678, 688-96.
57. For a full discussion of the ordinance, see Carol Willis, "A 3D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts," in Planning and Zoning in New York City: Yesterday, Today, and Tomorrow, ed. Todd W. Bressi (Rutgers: Center for Urban Policy Research, 1993), 3-26; Marc A. Weiss, "Density and Intervention: New York's Planning Traditions," in The Lanscape of Modernity, 46-75; Revell, "Regulating the Landscape," 19-45; S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); M. Christine Boyer, Dreaming the Rational City: The Myth of American City Planning (Cambridge: MIT Press, 1983), and idem, Manhattan Manners: Architecture and Style, 1850-1900 (New York: Rizzoli International Publications, 1985); Toll, Zoned America, 143-87; and Harvey Kantor, "Modern Urban Planning in New York City: Origins and Evolution, 1890-1933" (Ph.D. diss., New York University, 1971).
58. For a full discussion of the ordinance, see Carol Willis, "A 3D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts," in Planning and Zoning in New York City: Yesterday, Today, and Tomorrow, ed. Todd W. Bressi (Rutgers: Center for Urban Policy Research, 1993), 3-26; Marc A. Weiss, "Density and Intervention: New York's Planning Traditions," in The Lanscape of Modernity, 46-75; Revell, "Regulating the Landscape," 19-45; S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); M. Christine Boyer, Dreaming the Rational City: The Myth of American City Planning (Cambridge: MIT Press, 1983), and idem, Manhattan Manners: Architecture and Style, 1850-1900 (New York: Rizzoli International Publications, 1985); Toll, Zoned America, 143-87; and Harvey Kantor, "Modern Urban Planning in New York City: Origins and Evolution, 1890-1933" (Ph.D. diss., New York University, 1971).
59. For a full discussion of the ordinance, see Carol Willis, "A 3D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts," in Planning and Zoning in New York City: Yesterday, Today, and Tomorrow, ed. Todd W. Bressi (Rutgers: Center for Urban Policy Research, 1993), 3-26; Marc A. Weiss, "Density and Intervention: New York's Planning Traditions," in The Lanscape of Modernity, 46-75; Revell, "Regulating the Landscape," 19-45; S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); M. Christine Boyer, Dreaming the Rational City: The Myth of American City Planning (Cambridge: MIT Press, 1983), and idem, Manhattan Manners: Architecture and Style, 1850-1900 (New York: Rizzoli International Publications, 1985); Toll, Zoned America, 143-87; and Harvey Kantor, "Modern Urban Planning in New York City: Origins and Evolution, 1890-1933" (Ph.D. diss., New York University, 1971).
60. For a full discussion of the ordinance, see Carol Willis, "A 3D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts," in Planning and Zoning in New York City: Yesterday, Today, and Tomorrow, ed. Todd W. Bressi (Rutgers: Center for Urban Policy Research, 1993), 3-26; Marc A. Weiss, "Density and Intervention: New York's Planning Traditions," in The Lanscape of Modernity, 46-75; Revell, "Regulating the Landscape," 19-45; S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); M. Christine Boyer, Dreaming the Rational City: The Myth of American City Planning (Cambridge: MIT Press, 1983), and idem, Manhattan Manners: Architecture and Style, 1850-1900 (New York: Rizzoli International Publications, 1985); Toll, Zoned America, 143-87; and Harvey Kantor, "Modern Urban Planning in New York City: Origins and Evolution, 1890-1933" (Ph.D. diss., New York University, 1971).
61. For a full discussion of the ordinance, see Carol Willis, "A 3D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts," in Planning and Zoning in New York City: Yesterday, Today, and Tomorrow, ed. Todd W. Bressi (Rutgers: Center for Urban Policy Research, 1993), 3-26; Marc A. Weiss, "Density and Intervention: New York's Planning Traditions," in The Lanscape of Modernity, 46-75; Revell, "Regulating the Landscape," 19-45; S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); M. Christine Boyer, Dreaming the Rational City: The Myth of American City Planning (Cambridge: MIT Press, 1983), and idem, Manhattan Manners: Architecture and Style, 1850-1900 (New York: Rizzoli International Publications, 1985); Toll, Zoned America, 143-87; and Harvey Kantor, "Modern Urban Planning in New York City: Origins and Evolution, 1890-1933" (Ph.D. diss., New York University, 1971).
62. For a full discussion of the ordinance, see Carol Willis, "A 3D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts," in Planning and Zoning in New York City: Yesterday, Today, and Tomorrow, ed. Todd W. Bressi (Rutgers: Center for Urban Policy Research, 1993), 3-26; Marc A. Weiss, "Density and Intervention: New York's Planning Traditions," in The Lanscape of Modernity, 46-75; Revell, "Regulating the Landscape," 19-45; S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); M. Christine Boyer, Dreaming the Rational City: The Myth of American City Planning (Cambridge: MIT Press, 1983), and idem, Manhattan Manners: Architecture and Style, 1850-1900 (New York: Rizzoli International Publications, 1985); Toll, Zoned America, 143-87; and Harvey Kantor, "Modern Urban Planning in New York City: Origins and Evolution, 1890-1933" (Ph.D. diss., New York University, 1971).
63. For a full discussion of the ordinance, see Carol Willis, "A 3D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts," in Planning and Zoning in New York City: Yesterday, Today, and Tomorrow, ed. Todd W. Bressi (Rutgers: Center for Urban Policy Research, 1993), 3-26; Marc A. Weiss, "Density and Intervention: New York's Planning Traditions," in The Lanscape of Modernity, 46-75; Revell, "Regulating the Landscape," 19-45; S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); M. Christine Boyer, Dreaming the Rational City: The Myth of American City Planning (Cambridge: MIT Press, 1983), and idem, Manhattan Manners: Architecture and Style, 1850-1900 (New York: Rizzoli International Publications, 1985); Toll, Zoned America, 143-87; and Harvey Kantor, "Modern Urban Planning in New York City: Origins and Evolution, 1890-1933" (Ph.D. diss., New York University, 1971).
64. For a full discussion of the ordinance, see Carol Willis, "A 3D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts," in Planning and Zoning in New York City: Yesterday, Today, and Tomorrow, ed. Todd W. Bressi (Rutgers: Center for Urban Policy Research, 1993), 3-26; Marc A. Weiss, "Density and Intervention: New York's Planning Traditions," in The Lanscape of Modernity, 46-75; Revell, "Regulating the Landscape," 19-45; S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia University Press, 1966); M. Christine Boyer, Dreaming the Rational City: The Myth of American City Planning (Cambridge: MIT Press, 1983), and idem, Manhattan Manners: Architecture and Style, 1850-1900 (New York: Rizzoli International Publications, 1985); Toll, Zoned America, 143-87; and Harvey Kantor, "Modern Urban Planning in New York City: Origins and Evolution, 1890-1933" (Ph.D. diss., New York University, 1971).
65. Robert Murray Haig, Some Probable Effects of the Exemption of Improvements From Taxation in the City of New York: A Report Prepared for the Committee on Taxation of the City of New York (New York: Clarence S. Nathan, 1915), 20; Commission on Building Districts and Restrictions, Final Report (New York: Board of Estimate and Apportionment, Committee on the City Plan, 1916), 233-34 (hereafter, CBDR, Final Report); George B. Ford, New York City Building Zone Resolution: Restricting the Height and Use of Buildings . . . (New York: New York Title and Mortgage Company, 1917), 5 (hereafter, Building Zone Resolution) idem, "How New York City Now Controls the Development of Private Property," The City Plan 2 (1916): 3. There were actually four use districts. The fourth, undetermined, covered regions of the city that the zoning committees believed might be included as part of future port and terminal plans; CBDR, Final Report, 15, 16.
66. Robert Murray Haig, Some Probable Effects of the Exemption of Improvements From Taxation in the City of New York: A Report Prepared for the Committee on Taxation of the City of New York (New York: Clarence S. Nathan, 1915), 20; Commission on Building Districts and Restrictions, Final Report (New York: Board of Estimate and Apportionment, Committee on the City Plan, 1916), 233-34 (hereafter, CBDR, Final Report); George B. Ford, New York City Building Zone Resolution: Restricting the Height and Use of Buildings . . . (New York: New York Title and Mortgage Company, 1917), 5 (hereafter, Building Zone Resolution) idem, "How New York City Now Controls the Development of Private Property," The City Plan 2 (1916): 3. There were actually four use districts. The fourth, undetermined, covered regions of the city that the zoning committees believed might be included as part of future port and terminal plans; CBDR, Final Report, 15, 16.
67. Robert Murray Haig, Some Probable Effects of the Exemption of Improvements From Taxation in the City of New York: A Report Prepared for the Committee on Taxation of the City of New York (New York: Clarence S. Nathan, 1915), 20; Commission on Building Districts and Restrictions, Final Report (New York: Board of Estimate and Apportionment, Committee on the City Plan, 1916), 233-34 (hereafter, CBDR, Final Report); George B. Ford, New York City Building Zone Resolution: Restricting the Height and Use of Buildings . . . (New York: New York Title and Mortgage Company, 1917), 5 (hereafter, Building Zone Resolution) idem, "How New York City Now Controls the Development of Private Property," The City Plan 2 (1916): 3. There were actually four use districts. The fourth, undetermined, covered regions of the city that the zoning committees believed might be included as part of future port and terminal plans; CBDR, Final Report, 15, 16.
68. Robert Murray Haig, Some Probable Effects of the Exemption of Improvements From Taxation in the City of New York: A Report Prepared for the Committee on Taxation of the City of New York (New York: Clarence S. Nathan, 1915), 20; Commission on Building Districts and Restrictions, Final Report (New York: Board of Estimate and Apportionment, Committee on the City Plan, 1916), 233-34 (hereafter, CBDR, Final Report); George B. Ford, New York City Building Zone Resolution: Restricting the Height and Use of Buildings . . . (New York: New York Title and Mortgage Company, 1917), 5 (hereafter, Building Zone Resolution) idem, "How New York City Now Controls the Development of Private Property," The City Plan 2 (1916): 3. There were actually four use districts. The fourth, undetermined, covered regions of the city that the zoning committees believed might be included as part of future port and terminal plans; CBDR, Final Report, 15, 16.
69. Robert Murray Haig, Some Probable Effects of the Exemption of Improvements From Taxation in the City of New York: A Report Prepared for the Committee on Taxation of the City of New York (New York: Clarence S. Nathan, 1915), 20; Commission on Building Districts and Restrictions, Final Report (New York: Board of Estimate and Apportionment, Committee on the City Plan, 1916), 233-34 (hereafter, CBDR, Final Report); George B. Ford, New York City Building Zone Resolution: Restricting the Height and Use of Buildings . . . (New York: New York Title and Mortgage Company, 1917), 5 (hereafter, Building Zone Resolution) idem, "How New York City Now Controls the Development of Private Property," The City Plan 2 (1916): 3. There were actually four use districts. The fourth, undetermined, covered regions of the city that the zoning committees believed might be included as part of future port and terminal plans; CBDR, Final Report, 15, 16.
70. CBDR, Final Report, 236-37, figs. 129-31.
71. Ibid., 238-42, figs. 132-35; Ford, Building Zone Resolution, 12; Ford, "How New York City Controls Private Property," 3.
72. Ibid., 238-42, figs. 132-35; Ford, Building Zone Resolution, 12; Ford, "How New York City Controls Private Property," 3.
73. Ibid., 238-42, figs. 132-35; Ford, Building Zone Resolution, 12; Ford, "How New York City Controls Private Property," 3.
74. Duncan Kennedy, "Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940," Research in Law and Sociology 3 (1980): 3-24, 5, 12; Thomas C. Grey, "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 1-53, 34; T. Alexander Aleinikoff, "Constitutional Law in the Age of Balancing," Yale Law Journal 96 (1987): 949-52.
75. Duncan Kennedy, "Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940," Research in Law and Sociology 3 (1980): 3-24, 5, 12; Thomas C. Grey, "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 1-53, 34; T. Alexander Aleinikoff, "Constitutional Law in the Age of Balancing," Yale Law Journal 96 (1987): 949-52.
76. Duncan Kennedy, "Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940," Research in Law and Sociology 3 (1980): 3-24, 5, 12; Thomas C. Grey, "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 1-53, 34; T. Alexander Aleinikoff, "Constitutional Law in the Age of Balancing," Yale Law Journal 96 (1987): 949-52.
77. Perhaps the broadest definition can be found in Justice Harlan's decision in Chicago, Burlington & Quincy Railway v. Drainage Commissioners, 200 U.S. 561 at 592: We hold that the police power of a State embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety.
78. Welch v. Swasey, 214 U.S. 91 at 105.
79. Horwitz, The Transformation of American Law, 1870-1960, 27-30.
80. Or as Duncan Kennedy put it: "Both the [private] right [of contract] and the [state's] power [to regulate] are entitled to protection; each overrides and annihilates the other, and is in that sense absolute, but only within a 'sphere'" (Kennedy, "Toward an Historical Understanding of Legal Consciousness," 9-14).
81. Ibid., 5, 11.
82. Ibid., 9-14; Aleinikoff, "Constitutional Law in the Age of Balancing," 951-52.
83. Ibid., 9-14; Aleinikoff, "Constitutional Law in the Age of Balancing," 951-52.
84. Lochner v. New York, 198 U.S. 45 (1905) at 53, 56-57, 59-63, 64.
85. Lochner v. New York, 198 U.S. 45 (1905) at 68. Kennedy, "Toward and Historical Understanding of Legal Consciousness," 12-15, makes this point.
86. Lochner v. New York, 198 U.S. 45 (1905) at 68. Kennedy, "Toward and Historical Understanding of Legal Consciousness," 12-15, makes this point.
87. Aleinikoff, "Constitutional Law in the Age of Balancing," 952-58; Roscoe Pound, "Mechanical Jurisprudence," Columbia Law Review 8 (1908): 609-10.
88. Aleinikoff, "Constitutional Law in the Age of Balancing," 952-58; Roscoe Pound, "Mechanical Jurisprudence," Columbia Law Review 8 (1908): 609-10.
89. Warren, "The Progressiveness of the United States Supreme Court," 295 and passim.
90. Statement of the Fifth Avenue Association on the Limitations of Building Heights to the New York City Commission and the Testimony of the Association's Representatives at a Conference, June 19, 1913, 22.
91. Cochran v. Preston, 70 Atl. Rep. 113, 114, 115; and Garrett Power, "High Society: The Building Height Limitation on Baltimore's Mt. Vernon Place," Maryland Historical Magazine 79 (1984): 197-219, esp. 202-5. Bruce Falconer saw the special significance of the Cochran ruling for Fifth Avenue. The small district of the city singled out foe height limitations was deemed unique by the court. So while the height limit applied to only one section of a large city, the ordinance did not deny equal protection of the law to all classes of buildings. Like Fifth Avenue, Mt. Vernon Place contained residences worthy of special attention. The area deserved unique consideration and the courts provided it. See Statement of the Fifth Avenue Association, 24.
92. Cochran v. Preston, 70 Atl. Rep. 113, 114, 115; and Garrett Power, "High Society: The Building Height Limitation on Baltimore's Mt. Vernon Place," Maryland Historical Magazine 79 (1984): 197-219, esp. 202-5. Bruce Falconer saw the special significance of the Cochran ruling for Fifth Avenue. The small district of the city singled out foe height limitations was deemed unique by the court. So while the height limit applied to only one section of a large city, the ordinance did not deny equal protection of the law to all classes of buildings. Like Fifth Avenue, Mt. Vernon Place contained residences worthy of special attention. The area deserved unique consideration and the courts provided it. See Statement of the Fifth Avenue Association, 24.
93. Cochran v. Preston, 70 Atl. Rep. 113, 114, 115; and Garrett Power, "High Society: The Building Height Limitation on Baltimore's Mt. Vernon Place," Maryland Historical Magazine 79 (1984): 197-219, esp. 202-5. Bruce Falconer saw the special significance of the Cochran ruling for Fifth Avenue. The small district of the city singled out foe height limitations was deemed unique by the court. So while the height limit applied to only one section of a large city, the ordinance did not deny equal protection of the law to all classes of buildings. Like Fifth Avenue, Mt. Vernon Place contained residences worthy of special attention. The area deserved unique consideration and the courts provided it. See Statement of the Fifth Avenue Association, 24.
94. Welch v. Swasey, 214 U.S. 91; Statement of the Fifth Avenue Association, 22-24.
95. Welch v. Swasey, 214 U.S. 91; Statement of the Fifth Avenue Association, 22-24.
96. Welch v. Swasey, 214 U.S. 91, 92-93, 107, 105-6; see also Statement of the Fifth Avenue Association, 23.
97. Welch v. Swasey, 214 U.S. 91, 92-93, 107, 105-6; see also Statement of the Fifth Avenue Association, 23.
98. Ex parte Quong Wo, 118 Pac. Rep. 714 at 715-18.
99. In view of the progress of the medical profession, the better understanding of the nature of disease and its transmission, and the broader conception of the duty of the municipality in regard to the preservation and protection of the public health characteristic of the present age, [the ordinance] seems upon the face of it to embody a sensible and reasonable restriction, bearing a direct and efficacious relation to the accomplishment of a legitimate purpose of police and sanitary regulation. (From In re San Chung, 11 Cal. App. 511 at 517-18, as quoted in Exporte Quong Wo, 118 Pac. Rep. 714 at 719)
100. Doubtless the same considerations of public health would warrant a court in sustaining the action of a municipality in prohibiting the operation of public laundries in a densely populated neighborhood devoted to residence purposes; that is, the court, in such a case, in the absence of any evidence to that effect, could not say that the public health is not promoted by such a regulation, or that the same is "unreasonable and unnecessarily oppresse." The design of the ordinance here involved undoubtedly was to protect such portions of the city of Los Angeles as are devoted principally to residence purposes from the dangers and discomfort attendant upon the operation of certain kinds of business which, while not necessarily nuisances per se, have always been recognized as proper subjects of police regution. (Ex parte Quong Wo, 118 Pac. Rep. 714 at 719
101. The People ex rel. Lincoln Ice Company v. The City of Chicago et al., 260 Ill. 150 at 153.
102. The People ex rel. Julius P. Friend v. The City of Chicago et al., 261 Ill. 16 (1913) at 20, 21.
103. Willison v. Cooke, 54 Colo. 320 (1913) at 326, 327, 328; although the ordinance specified that a store could be constructed with the consent of property owners, the court made clear (at 328) that, regardless of the consent provision, stores were not threats to public health and safety, and therefore could not be barred from the street under guise of the police power .
104. Calvo v. City of New Orleans, 136 La. 480 (1915) at 482.
105. Calvo, 136 La. 480 at 483: The character of businesses on Carrollton avenue is not regarded in the ordinance. It (the ordinance) was not adopted to safeguard the public health, safety, morals, comfort, or general welfare. It embraces aesthetic considerations only. . . . The aesthetic does not fall within the exercise of the police power. Willison, 54 Colo. 320 at 329: A store building in a residence section of the city is not desirable, from an aesthetic point of view; but restrictions for this purpose alone cannot be upheld, at it is only those having for their object the safety and welfare of the public which justifies restricting a use of property by the owner. Friend, 261 Ill. 16 at 21: There is nothing inherently dangerous to the health or safety of the public in conducting a retail store. It may be that in certain exclusively residential districts the owners of residence property would prefer not to have any retail stores in such blocks, but if such be the case it manifestly arises solely from aesthetic considerations, disconnected entirely from and relation to the public health, morals, comfort or general welfare. Legislation, either by the State or by municipal corporations, which interferes with private property rights or personal liberty, cannot be sustained for purely aesthetic purposes.
106. See People v. Green, 85 App. Div. (N.Y.) 400 (1903); Bill Posting Sign Co. v. Atlantic City, 71 N.J.L. 72 (1904); Chicago v. Gunning System, 214 Ill. 628 (1905); Bryan v. City of Chester, 212 Pa. 259 (1905); Commonwealth v. Boston Advertising, 188 Mass. 348 (1905); Passaic v. Patterson Bill Posting, 72 N.J.L. 285 (1905); Varney & Green v. Williams, 155 Cal. 318 (1909); People ex rel.
107. Curran v. Denver, 47 Colo. 221 at 227. This quotation is attributed to Passaic v. Paterson, 72 N.J.L. 285, but that opinion contains no such language. See also People ex rel. Wineburgh Advertising Company v. Murphy, 195 N.Y. 126 (1909).
108. The citizen has always been supposed to be free to determine the style of architecture of his house, the color of paint that he puts thereon, the number and character of trees he will plant, the style and quality of clothes that he and his family will wea, and it has never been thought that the legislature could invade private rights so far as to prescribe the course to be pursued in these and other like matters, although the highly cultured may find on every street in every town and city many things that are not only open to criticism but shocking to the aesthetic taste. (Haller Sign Works v. Physical Culture Training School, 249 Ill. 436 [1911] at 443) Compare Curran Bill Posting v. Denver, 47 Colo. 221 (1910) at 227: "The cut of a dress, the color of the garment worn, the style of the hat, the architecture of the building or its color, may be distasteful to the refined sense of some, yet government can neither control nor regulate in such affairs" - colonial sumptuary laws notwithstanding.
109. Passaic v. Patterson Bill Posting, 72 N.J.L. 285 (1905) at 287. Cities were not entirely powerless to pursue some forms of aesthetic enhancement, even when those efforts interfered with private property rights. Although not within the police power, civic beautification did fall within the power of eminent domain, the power of the state to take private property for public use. Here, however, courts were really authorizing the expenditure of public monies for the creation and preservation of parks, rather than the beautification of the skyline. The City of Boston, to cite the leading example, passed an ordinance in 1898 limiting building heights to ninety feet around Copley Square (site of Henry Hobson Richardson's masterpiece of American architecture, Trinity Church), a limit enforced by the city compensating property owners for lopping off the tops of buildings above ninety feet (which occured in only one case, where the roof of a ninety-six-foot building was lowered six feet). The state supreme court upheld the ordinance, but it did so by arguing that its real motive was to protect Copley Square as a public park - a recognized use of the power of eminent domain. Attorney General v. Williams, 174 Mass. 476 (1899). In all respects the statute is in accordance with the laws regulating the taking of property by right of eminent domain, if the Legislature properly could determine that the preservation or improvement of the park in this particular was for a public use. . . . It is only within a few years that lands have been taken in this country for public parks. Now the right to take land for this purpose is generally recognized and frequently exercised. . . . Their aesthetic effect has never been thought unworthy of careful consideration by those best qualified to appreciate it. It hardly would be contended that the same reasons which justify the taking of land for a public park do not also justify the expenditure of money to make the park attractive and educational to those whose tastes are being formed and whose love of beauty is being cultivated. (at 478, 479, and 480) See also Michael Holleran, "Boston's 'Sacred Skyline': From Prohibiting to Sculpting Skyscrapers, 1891-1928," Journal of Urban History 22 (1996): 563-65. The Copley Square decision in 1899 hardly signaled a judicial embrace of regulatory measures limiting the use of private property for aesthetic reasons. Only six years later the same Massachusetts court struck down another ordinance prohibiting advertising signs along parkways - a rather straightforward effort to beautify a public road. In its opinion the court emphasized that while it was acceptable to spend public monies to promote civic beauty and pleasure (as in the Copley Square case), it was beyond the scope of the law to regulate the use of private property for something which, at most, was "an offence against good taste." Commonwealth v. Boston Adverstising Co., 188 Mass. 348 (1905) at 351. As one student of the legal aspects of civic beautification concluded in 1907, "although public aesthetic ends may be effectuated by statute or ordinance through the exercise of eminent domain, the same object may not be accomplished by legislation under the police power." Wilbur Larremore, "Public Aesthetics," Harvard Law Review 20 (1906-1907): 43. Noted legal scholar and police power authority Ernst Freund was more sanguine; he speculated that the police power might be extended from the suppression of offensive noises and odors to the suppression of unsightly advertising (ibid.).
110. Passaic v. Patterson Bill Posting, 72 N.J.L. 285 (1905) at 287. Cities were not entirely powerless to pursue some forms of aesthetic enhancement, even when those efforts interfered with private property rights. Although not within the police power, civic beautification did fall within the power of eminent domain, the power of the state to take private property for public use. Here, however, courts were really authorizing the expenditure of public monies for the creation and preservation of parks, rather than the beautification of the skyline. The City of Boston, to cite the leading example, passed an ordinance in 1898 limiting building heights to ninety feet around Copley Square (site of Henry Hobson Richardson's masterpiece of American architecture, Trinity Church), a limit enforced by the city compensating property owners for lopping off the tops of buildings above ninety feet (which occured in only one case, where the roof of a ninety-six-foot building was lowered six feet). The state supreme court upheld the ordinance, but it did so by arguing that its real motive was to protect Copley Square as a public park - a recognized use of the power of eminent domain. Attorney General v. Williams, 174 Mass. 476 (1899). In all respects the statute is in accordance with the laws regulating the taking of property by right of eminent domain, if the Legislature properly could determine that the preservation or improvement of the park in this particular was for a public use. . . . It is only within a few years that lands have been taken in this country for public parks. Now the right to take land for this purpose is generally recognized and frequently exercised. . . . Their aesthetic effect has never been thought unworthy of careful consideration by those best qualified to appreciate it. It hardly would be contended that the same reasons which justify the taking of land for a public park do not also justify the expenditure of money to make the park attractive and educational to those whose tastes are being formed and whose love of beauty is being cultivated. (at 478, 479, and 480) See also Michael Holleran, "Boston's 'Sacred Skyline': From Prohibiting to Sculpting Skyscrapers, 1891-1928," Journal of Urban History 22 (1996): 563-65. The Copley Square decision in 1899 hardly signaled a judicial embrace of regulatory measures limiting the use of private property for aesthetic reasons. Only six years later the same Massachusetts court struck down another ordinance prohibiting advertising signs along parkways - a rather straightforward effort to beautify a public road. In its opinion the court emphasized that while it was acceptable to spend public monies to promote civic beauty and pleasure (as in the Copley Square case), it was beyond the scope of the law to regulate the use of private property for something which, at most, was "an offence against good taste." Commonwealth v. Boston Adverstising Co., 188 Mass. 348 (1905) at 351. As one student of the legal aspects of civic beautification concluded in 1907, "although public aesthetic ends may be effectuated by statute or ordinance through the exercise of eminent domain, the same object may not be accomplished by legislation under the police power." Wilbur Larremore, "Public Aesthetics," Harvard Law Review 20 (1906-1907): 43. Noted legal scholar and police power authority Ernst Freund was more sanguine; he speculated that the police power might be extended from the suppression of offensive noises and odors to the suppression of unsightly advertising (ibid.).
111. Passaic v. Patterson Bill Posting, 72 N.J.L. 285 (1905) at 287. Cities were not entirely powerless to pursue some forms of aesthetic enhancement, even when those efforts interfered with private property rights. Although not within the police power, civic beautification did fall within the power of eminent domain, the power of the state to take private property for public use. Here, however, courts were really authorizing the expenditure of public monies for the creation and preservation of parks, rather than the beautification of the skyline. The City of Boston, to cite the leading example, passed an ordinance in 1898 limiting building heights to ninety feet around Copley Square (site of Henry Hobson Richardson's masterpiece of American architecture, Trinity Church), a limit enforced by the city compensating property owners for lopping off the tops of buildings above ninety feet (which occured in only one case, where the roof of a ninety-six-foot building was lowered six feet). The state supreme court upheld the ordinance, but it did so by arguing that its real motive was to protect Copley Square as a public park - a recognized use of the power of eminent domain. Attorney General v. Williams, 174 Mass. 476 (1899). In all respects the statute is in accordance with the laws regulating the taking of property by right of eminent domain, if the Legislature properly could determine that the preservation or improvement of the park in this particular was for a public use. . . . It is only within a few years that lands have been taken in this country for public parks. Now the right to take land for this purpose is generally recognized and frequently exercised. . . . Their aesthetic effect has never been thought unworthy of careful consideration by those best qualified to appreciate it. It hardly would be contended that the same reasons which justify the taking of land for a public park do not also justify the expenditure of money to make the park attractive and educational to those whose tastes are being formed and whose love of beauty is being cultivated. (at 478, 479, and 480) See also Michael Holleran, "Boston's 'Sacred Skyline': From Prohibiting to Sculpting Skyscrapers, 1891-1928," Journal of Urban History 22 (1996): 563-65. The Copley Square decision in 1899 hardly signaled a judicial embrace of regulatory measures limiting the use of private property for aesthetic reasons. Only six years later the same Massachusetts court struck down another ordinance prohibiting advertising signs along parkways - a rather straightforward effort to beautify a public road. In its opinion the court emphasized that while it was acceptable to spend public monies to promote civic beauty and pleasure (as in the Copley Square case), it was beyond the scope of the law to regulate the use of private property for something which, at most, was "an offence against good taste." Commonwealth v. Boston Adverstising Co., 188 Mass. 348 (1905) at 351. As one student of the legal aspects of civic beautification concluded in 1907, "although public aesthetic ends may be effectuated by statute or ordinance through the exercise of eminent domain, the same object may not be accomplished by legislation under the police power." Wilbur Larremore, "Public Aesthetics," Harvard Law Review 20 (1906-1907): 43. Noted legal scholar and police power authority Ernst Freund was more sanguine; he speculated that the police power might be extended from the suppression of offensive noises and odors to the suppression of unsightly advertising (ibid.).
112. Legal barriers also thwarted planning efforts in other cities. See, for example Mark Fenster, "'A Remedy on Paper': The Role of Law in the Failure of City Planning in New Haven, 1907-1913," Yale Law Journal 107 (1998): 1093-123.
113. Bassett to McAneny, September 28, 1914, Edward Murray Bassett Papers, Cornell University [hereafter, Bassett Papers], Box 4, File 65.
114. Edward M. Bassett, Zoning: The Laws, Administration, and Court Decisions During the First Twenty Years (New York: Russell Sage Foundation, 1940).
115. Scott, American City Planning Since 1890, 160.
116. William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 2, 3, 42, 51-113 (esp. 85, 88, 128), 191-233, and idem, "Public Economy and the Well-ordered Market: Law and Economic Regulation in 19th-Century America," Law and Social Inquiry 18 (1993): 1-32.
117. William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 2, 3, 42, 51-113 (esp. 85, 88, 128), 191-233, and idem, "Public Economy and the Well-ordered Market: Law and Economic Regulation in 19th-Century America," Law and Social Inquiry 18 (1993): 1-32.
118. Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (New York: Oxford University Press, 1957), 249-54, esp. 253-54.
119. Commonwealth v. Cyrus Alger, 61 Mass. 53 (1851) at 84-85.
120. Novak, The People's Welfare, 19-21.
121. Novak argues that a new legal and government regime had displaced the salus populi tradition by the time Oliver Wendell Holmes, Jr. issued his famous opinion in Pennsylvania Coal v. Mahon (1992). . . . In imposing a new constitutional limitation on exercises of police power, Holmes felt obligated to respond to the seemingly unlimited power behind nineteenth-century fire regulations. But by 1922, the common law assumptions and principles that made sense of those regulations had all but evaporated. (Novak, The People's Welfare, 81)
122. Novak, The People's Welfare, 239-48.
123. Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, Mass.: Harvard University Press, 1977), 255.
124. Wickersham cast the problem in nineteenth-century phraseology - judges defending constittutional rights against the legislature. In the twentieth century, the battle would increasingly involve experts-as-bureaucrats and judges. Goerge W. Wickersham, "The Police Power, A Product of the Rule of Reason," Harvard Law Review 27 (1914): 304-8, 315.
125. Andrew Crawford Wright, "Discussion," Proceedings of the Fifth National Conference on City Planning (1913): 65.
126. Remarks of Frederick Law Olmsted, "Discussion," Proceedings of the Sixth National Conference on City Planning (1914): 14.
127. Lawrence Veiller, "Protecting Residential Districts," Proceedings of the Sixth National Conference on City Planning (1914): 110, 95, 96, 111. These striking and important decisions, sustaining and broadening our conceptions of the police power, have been a source of great comfort and encouragement to the writer of this paper, who, however, has had his bouyant optimism somewhat diminished upon being informed by some of his legal friends in the East [probably Bassett] that it is not sage to follow the decisions of the California courts, as they are not esteemed highly by the legal fraternity. We trust that this may prove to be sectional and narrow view of fundamental principles of human liberty. (109)
128. John J. Walsh, "Discussion," Proceedings of the Sixth National Conference on City Planning (1914): 120.
129. Ernst Freund, "Discussion," Proceedings of the Third National Conference on City Planning (1911): 246.
130. Phillip Kates, "Discussion," Proceedings of the Third National Conference on City Planning (1911): 250-52.
131. These professional debates thus represent a case of "collective puzzlement," to borrow Heclo's term.
132. See Remarks of Hon. Lawson Purdy at Meeting of Zoning Division, Oct. 28, 1926, Mayor William J. Gaynor Papers, New York City Municipal Archives, Box WJJ-231.
133. Digest of Legal Conference, July 7, 1913, 3, Heights of Buildings Commission Papers, Box 2507. The same point was acknowledged by the CBDR: "We cannot justify more stringent regulations for dwellings in the suburbs than in Lower Manhattan on the ground that light, air and comfort for the residents of the suburbs are of greater importance than for the residents of Lower Manhattan" (CBDR, Final Report, 54).
134. Digest of Legal Conference, July 7, 1913, 3, Heights of Buildings Commission Papers, Box 2507. The same point was acknowledged by the CBDR: "We cannot justify more stringent regulations for dwellings in the suburbs than in Lower Manhattan on the ground that light, air and comfort for the residents of the suburbs are of greater importance than for the residents of Lower Manhattan" (CBDR, Final Report, 54).
135. During the first decade of the twentieth century, the leading fight for City Beautiful advocates was the anti-billboard campaign - which resulted in many of the unfavorable court decisions against aesthetically-motivated regulations mentioned above. See Wiliam H. Wilson, "The Billboard: Bane of the City Beautiful," Journal of Urban History 13 (1987): 394-425; and idem, "J. Horace McFarland and the City Beautiful Movement," Journal of Urban History 7 (1981): 315-34. In New York City, the battle against billboards was waged by the Fifth Avenue Association, the merchants' group so well-known for its crusade to limit building heights through zoning. The Mayor's Billboard Advertising Commission, which was active at the same time as the zoning movement, was headed by Association President Grier Cooke, and Met Life Comptroller Walter Stabler; Stabler was a central figure in the zoning movement. They lambasted the city's 3.8 million square feet of billboard advertising for defacing Fifth Avenue, with its stately homes and museums, and thus driving down property values - more or less the same complaints made against tall buildings to be limited with zoning regulations. See "Mayor's Billboard Commission to Probe Sign Evil," New York Times, January 12, 1913, V, 12:1-7; "The Billboard Question," New York Times, January 12, 1913, VII, 17:4; "Blames the Judges for the Billboards," New York Times, December 14, 1913, IV, 6:1; Raymond B. Fosdick, "Big Billboards in Big Cities," American City 7 (1912): 516.
136. During the first decade of the twentieth century, the leading fight for City Beautiful advocates was the anti-billboard campaign - which resulted in many of the unfavorable court decisions against aesthetically-motivated regulations mentioned above. See Wiliam H. Wilson, "The Billboard: Bane of the City Beautiful," Journal of Urban History 13 (1987): 394-425; and idem, "J. Horace McFarland and the City Beautiful Movement," Journal of Urban History 7 (1981): 315-34. In New York City, the battle against billboards was waged by the Fifth Avenue Association, the merchants' group so well-known for its crusade to limit building heights through zoning. The Mayor's Billboard Advertising Commission, which was active at the same time as the zoning movement, was headed by Association President Grier Cooke, and Met Life Comptroller Walter Stabler; Stabler was a central figure in the zoning movement. They lambasted the city's 3.8 million square feet of billboard advertising for defacing Fifth Avenue, with its stately homes and museums, and thus driving down property values - more or less the same complaints made against tall buildings to be limited with zoning regulations. See "Mayor's Billboard Commission to Probe Sign Evil," New York Times, January 12, 1913, V, 12:1-7; "The Billboard Question," New York Times, January 12, 1913, VII, 17:4; "Blames the Judges for the Billboards," New York Times, December 14, 1913, IV, 6:1; Raymond B. Fosdick, "Big Billboards in Big Cities," American City 7 (1912): 516.
137. During the first decade of the twentieth century, the leading fight for City Beautiful advocates was the anti-billboard campaign - which resulted in many of the unfavorable court decisions against aesthetically-motivated regulations mentioned above. See Wiliam H. Wilson, "The Billboard: Bane of the City Beautiful," Journal of Urban History 13 (1987): 394-425; and idem, "J. Horace McFarland and the City Beautiful Movement," Journal of Urban History 7 (1981): 315-34. In New York City, the battle against billboards was waged by the Fifth Avenue Association, the merchants' group so well-known for its crusade to limit building heights through zoning. The Mayor's Billboard Advertising Commission, which was active at the same time as the zoning movement, was headed by Association President Grier Cooke, and Met Life Comptroller Walter Stabler; Stabler was a central figure in the zoning movement. They lambasted the city's 3.8 million square feet of billboard advertising for defacing Fifth Avenue, with its stately homes and museums, and thus driving down property values - more or less the same complaints made against tall buildings to be limited with zoning regulations. See "Mayor's Billboard Commission to Probe Sign Evil," New York Times, January 12, 1913, V, 12:1-7; "The Billboard Question," New York Times, January 12, 1913, VII, 17:4; "Blames the Judges for the Billboards," New York Times, December 14, 1913, IV, 6:1; Raymond B. Fosdick, "Big Billboards in Big Cities," American City 7 (1912): 516.
138. During the first decade of the twentieth century, the leading fight for City Beautiful advocates was the anti-billboard campaign - which resulted in many of the unfavorable court decisions against aesthetically-motivated regulations mentioned above. See Wiliam H. Wilson, "The Billboard: Bane of the City Beautiful," Journal of Urban History 13 (1987): 394-425; and idem, "J. Horace McFarland and the City Beautiful Movement," Journal of Urban History 7 (1981): 315-34. In New York City, the battle against billboards was waged by the Fifth Avenue Association, the merchants' group so well-known for its crusade to limit building heights through zoning. The Mayor's Billboard Advertising Commission, which was active at the same time as the zoning movement, was headed by Association President Grier Cooke, and Met Life Comptroller Walter Stabler; Stabler was a central figure in the zoning movement. They lambasted the city's 3.8 million square feet of billboard advertising for defacing Fifth Avenue, with its stately homes and museums, and thus driving down property values - more or less the same complaints made against tall buildings to be limited with zoning regulations. See "Mayor's Billboard Commission to Probe Sign Evil," New York Times, January 12, 1913, V, 12:1-7; "The Billboard Question," New York Times, January 12, 1913, VII, 17:4; "Blames the Judges for the Billboards," New York Times, December 14, 1913, IV, 6:1; Raymond B. Fosdick, "Big Billboards in Big Cities," American City 7 (1912): 516.
139. During the first decade of the twentieth century, the leading fight for City Beautiful advocates was the anti-billboard campaign - which resulted in many of the unfavorable court decisions against aesthetically-motivated regulations mentioned above. See Wiliam H. Wilson, "The Billboard: Bane of the City Beautiful," Journal of Urban History 13 (1987): 394-425; and idem, "J. Horace McFarland and the City Beautiful Movement," Journal of Urban History 7 (1981): 315-34. In New York City, the battle against billboards was waged by the Fifth Avenue Association, the merchants' group so well-known for its crusade to limit building heights through zoning. The Mayor's Billboard Advertising Commission, which was active at the same time as the zoning movement, was headed by Association President Grier Cooke, and Met Life Comptroller Walter Stabler; Stabler was a central figure in the zoning movement. They lambasted the city's 3.8 million square feet of billboard advertising for defacing Fifth Avenue, with its stately homes and museums, and thus driving down property values - more or less the same complaints made against tall buildings to be limited with zoning regulations. See "Mayor's Billboard Commission to Probe Sign Evil," New York Times, January 12, 1913, V, 12:1-7; "The Billboard Question," New York Times, January 12, 1913, VII, 17:4; "Blames the Judges for the Billboards," New York Times, December 14, 1913, IV, 6:1; Raymond B. Fosdick, "Big Billboards in Big Cities," American City 7 (1912): 516.
140. During the first decade of the twentieth century, the leading fight for City Beautiful advocates was the anti-billboard campaign - which resulted in many of the unfavorable court decisions against aesthetically-motivated regulations mentioned above. See Wiliam H. Wilson, "The Billboard: Bane of the City Beautiful," Journal of Urban History 13 (1987): 394-425; and idem, "J. Horace McFarland and the City Beautiful Movement," Journal of Urban History 7 (1981): 315-34. In New York City, the battle against billboards was waged by the Fifth Avenue Association, the merchants' group so well-known for its crusade to limit building heights through zoning. The Mayor's Billboard Advertising Commission, which was active at the same time as the zoning movement, was headed by Association President Grier Cooke, and Met Life Comptroller Walter Stabler; Stabler was a central figure in the zoning movement. They lambasted the city's 3.8 million square feet of billboard advertising for defacing Fifth Avenue, with its stately homes and museums, and thus driving down property values - more or less the same complaints made against tall buildings to be limited with zoning regulations. See "Mayor's Billboard Commission to Probe Sign Evil," New York Times, January 12, 1913, V, 12:1-7; "The Billboard Question," New York Times, January 12, 1913, VII, 17:4; "Blames the Judges for the Billboards," New York Times, December 14, 1913, IV, 6:1; Raymond B. Fosdick, "Big Billboards in Big Cities," American City 7 (1912): 516.
141. Bassett to Albert S. Bard, May 18, 1915, Bassett Papers, Box 1, File 183. It is not my intention here to suggest that Bassett was correct about courts operating with antiquated legal theories. As Novak's work shows, seventy-five years earlier the courts had much broader views of the police powers than Bassett realized. My point, rather, is to show that Bassett believed, along with others of the Progressive generation, that the courts continued to apply outdated legal doctrines to modern urban conditions, thus preventing foresighted reformers from creating new institutions and new regulations to address the pressing social problems of the age. See, for example, Goodnow, Social Reform and the Constitution.
142. Edward M. Bassett, "A Survey of the Legal Status of a Specific City in Relation to City Planning," Proceedings of the Fifth National Conference on City Planning (1913): 46, 57.
143. Alfred Bettman, "Discussion," Proceedings of the Sixth National Conference on City Planning (1914): 111.
144. See William J. Novak, "Common Regulation: Legal Origins of State Power in America," Hastings Law Journal 45 (1994): 1095.
145. The term "judge-proof" belongs to Lawrence Veiller, "Protecting Residential Districts," Proceedings of the Sixth National Conference on City Planning (1914): 111.
146. Whitten had received a Ph.D. in political science from Columbia and then took a post as a reference librarian for the state legislature; in 1907, he became the librarian/statistician for the Public Service Commission where he met Bassett, one of the first PSC commissioners. William F. Mohr, ed., Who's Who in New York (City and State): 1914 (New York: Who's Who in New York City and State, Inc., 1914), 765; Robert Whitten, "Preliminary Report to the Heights of Buildings Commission," Bassett Papers, Box 10, File 18, also found in Heights of Buildings Commission Papers, New York City Municipal Archives, Box 2507.
147. Whitten had received a Ph.D. in political science from Columbia and then took a post as a reference librarian for the state legislature; in 1907, he became the librarian/statistician for the Public Service Commission where he met Bassett, one of the first PSC commissioners. William F. Mohr, ed., Who's Who in New York (City and State): 1914 (New York: Who's Who in New York City and State, Inc., 1914), 765; Robert Whitten, "Preliminary Report to the Heights of Buildings Commission," Bassett Papers, Box 10, File 18, also found in Heights of Buildings Commission Papers, New York City Municipal Archives, Box 2507.
148. Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan and Co., 1904), 11; Freund stated, for instance, that "the idea of a public welfare bought at the cost of suppressing individual liberty and right is in our system of government inadmissible" (12).
149. Freund defined the police power in this way: The maxim of this power is that every individual must submit to such restraints in the exercise of his liberty or of his rights of property as may be required to remove or reduce the danger of the abuse of these rights on the part of those who are unskillful, careless or unscrupulous. (Freund, Police Power, 6) This is all about private rights. The same was true for Thomas M. Cooley's definition of the police power: The police [power] of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others (A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union, 7th ed. [Boston: Little, Brown, 1903], 829) (Although I have not found evidence that the New York zoning team used Cooley as a source.) Compare Chief Justice Lemuel Shaw's definition in Commonwealth v. Alger, 61 Mass. 53 (1851): It is a settled principle, growing out of the nature of well-ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under implied liability that its use may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. (84-85) Shaw here mentions the protection of public rights in addition to his recognition of equal enjoyment of private rights. Without the doctrine of public rights, the police power remains either an expression of nuisance law or, as it was for Freund, a vague power best described with specific instances of restrictions of private rights. My conceptualization of this problem owes much to Scheiber, "Public Rights and the Rule of Law," esp. 222-24.
150. Freund defined the police power in this way: The maxim of this power is that every individual must submit to such restraints in the exercise of his liberty or of his rights of property as may be required to remove or reduce the danger of the abuse of these rights on the part of those who are unskillful, careless or unscrupulous. (Freund, Police Power, 6) This is all about private rights. The same was true for Thomas M. Cooley's definition of the police power: The police [power] of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others (A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union, 7th ed. [Boston: Little, Brown, 1903], 829) (Although I have not found evidence that the New York zoning team used Cooley as a source.) Compare Chief Justice Lemuel Shaw's definition in Commonwealth v. Alger, 61 Mass. 53 (1851): It is a settled principle, growing out of the nature of well-ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under implied liability that its use may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. (84-85) Shaw here mentions the protection of public rights in addition to his recognition of equal enjoyment of private rights. Without the doctrine of public rights, the police power remains either an expression of nuisance law or, as it was for Freund, a vague power best described with specific instances of restrictions of private rights. My conceptualization of this problem owes much to Scheiber, "Public Rights and the Rule of Law," esp. 222-24.
151. Freund defined the police power in this way: The maxim of this power is that every individual must submit to such restraints in the exercise of his liberty or of his rights of property as may be required to remove or reduce the danger of the abuse of these rights on the part of those who are unskillful, careless or unscrupulous. (Freund, Police Power, 6) This is all about private rights. The same was true for Thomas M. Cooley's definition of the police power: The police [power] of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others (A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union, 7th ed. [Boston: Little, Brown, 1903], 829) (Although I have not found evidence that the New York zoning team used Cooley as a source.) Compare Chief Justice Lemuel Shaw's definition in Commonwealth v. Alger, 61 Mass. 53 (1851): It is a settled principle, growing out of the nature of well-ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under implied liability that its use may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. (84-85) Shaw here mentions the protection of public rights in addition to his recognition of equal enjoyment of private rights. Without the doctrine of public rights, the police power remains either an expression of nuisance law or, as it was for Freund, a vague power best described with specific instances of restrictions of private rights. My conceptualization of this problem owes much to Scheiber, "Public Rights and the Rule of Law," esp. 222-24.
152. Freund was not alone in maintaining a close relationship between police power and nuisance; the renowned legal scholar Edward S. Corwin lamented in 1990 that the courts still recognized the sic utere doctrine as the "controlling principle" of the police power. Edward S. Corwin, "The Supreme Court and the Fourteenth Amendment," (1909), in Corwin on the Constitution, vol.2, The Judiciary, ed. Richard Loss (Ithaca: Cornell University Press, 1987), 147. On Feund and the police power, see also Novak, "Common Regulation," 1074-75. My treatment of the relationship between the police power and nuisance doctrine has been informed by Scott M. Reznick, "Empiricism and the Principle of Conditions in the Evolution of the Police Power: A Model of Definitional Scrutiny," Washington University Law Quarterly 1 (1979): 1-92, esp. 1-21. Salus populi supreme lex provided another source of police power, but Reznick points out that this was primarily used to justify emergency measures or temporary expansions of public authority. For instance, in Russell v. Mayor of New York (2 Denio 461 [1845]) the court upheld as a lawful exercise of the police power the destruction of a warehouse and its contents by firefighters to create a firebreak; the court decided that because of the overruling necessity of stopping the fire, the city had the right to destroy the structure, and that the owners were not entitled to compensation. But this was obviously an emergency situation justifying a temporary police measure. See Reznick, "Empiricism and the Principle of Conditions," 19-20, and idem, "Land Use Regulation and the Concept of Taking in Nineteenth Century America," University of Chicago Law Review 40 (1973): 854-72, esp. 860-61. I have not found any evidence that the authors of the 1916 New York zoning ordinance turned to the salus populi doctrine to ground their police power arguments.
153. Freund was not alone in maintaining a close relationship between police power and nuisance; the renowned legal scholar Edward S. Corwin lamented in 1990 that the courts still recognized the sic utere doctrine as the "controlling principle" of the police power. Edward S. Corwin, "The Supreme Court and the Fourteenth Amendment," (1909), in Corwin on the Constitution, vol.2, The Judiciary, ed. Richard Loss (Ithaca: Cornell University Press, 1987), 147. On Feund and the police power, see also Novak, "Common Regulation," 1074-75. My treatment of the relationship between the police power and nuisance doctrine has been informed by Scott M. Reznick, "Empiricism and the Principle of Conditions in the Evolution of the Police Power: A Model of Definitional Scrutiny," Washington University Law Quarterly 1 (1979): 1-92, esp. 1-21. Salus populi supreme lex provided another source of police power, but Reznick points out that this was primarily used to justify emergency measures or temporary expansions of public authority. For instance, in Russell v. Mayor of New York (2 Denio 461 [1845]) the court upheld as a lawful exercise of the police power the destruction of a warehouse and its contents by firefighters to create a firebreak; the court decided that because of the overruling necessity of stopping the fire, the city had the right to destroy the structure, and that the owners were not entitled to compensation. But this was obviously an emergency situation justifying a temporary police measure. See Reznick, "Empiricism and the Principle of Conditions," 19-20, and idem, "Land Use Regulation and the Concept of Taking in Nineteenth Century America," University of Chicago Law Review 40 (1973): 854-72, esp. 860-61. I have not found any evidence that the authors of the 1916 New York zoning ordinance turned to the salus populi doctrine to ground their police power arguments.
154. Freund was not alone in maintaining a close relationship between police power and nuisance; the renowned legal scholar Edward S. Corwin lamented in 1990 that the courts still recognized the sic utere doctrine as the "controlling principle" of the police power. Edward S. Corwin, "The Supreme Court and the Fourteenth Amendment," (1909), in Corwin on the Constitution, vol.2, The Judiciary, ed. Richard Loss (Ithaca: Cornell University Press, 1987), 147. On Feund and the police power, see also Novak, "Common Regulation," 1074-75. My treatment of the relationship between the police power and nuisance doctrine has been informed by Scott M. Reznick, "Empiricism and the Principle of Conditions in the Evolution of the Police Power: A Model of Definitional Scrutiny," Washington University Law Quarterly 1 (1979): 1-92, esp. 1-21. Salus populi supreme lex provided another source of police power, but Reznick points out that this was primarily used to justify emergency measures or temporary expansions of public authority. For instance, in Russell v. Mayor of New York (2 Denio 461 [1845]) the court upheld as a lawful exercise of the police power the destruction of a warehouse and its contents by firefighters to create a firebreak; the court decided that because of the overruling necessity of stopping the fire, the city had the right to destroy the structure, and that the owners were not entitled to compensation. But this was obviously an emergency situation justifying a temporary police measure. See Reznick, "Empiricism and the Principle of Conditions," 19-20, and idem, "Land Use Regulation and the Concept of Taking in Nineteenth Century America," University of Chicago Law Review 40 (1973): 854-72, esp. 860-61. I have not found any evidence that the authors of the 1916 New York zoning ordinance turned to the salus populi doctrine to ground their police power arguments.
155. Freund was not alone in maintaining a close relationship between police power and nuisance; the renowned legal scholar Edward S. Corwin lamented in 1990 that the courts still recognized the sic utere doctrine as the "controlling principle" of the police power. Edward S. Corwin, "The Supreme Court and the Fourteenth Amendment," (1909), in Corwin on the Constitution, vol.2, The Judiciary, ed. Richard Loss (Ithaca: Cornell University Press, 1987), 147. On Feund and the police power, see also Novak, "Common Regulation," 1074-75. My treatment of the relationship between the police power and nuisance doctrine has been informed by Scott M. Reznick, "Empiricism and the Principle of Conditions in the Evolution of the Police Power: A Model of Definitional Scrutiny," Washington University Law Quarterly 1 (1979): 1-92, esp. 1-21. Salus populi supreme lex provided another source of police power, but Reznick points out that this was primarily used to justify emergency measures or temporary expansions of public authority. For instance, in Russell v. Mayor of New York (2 Denio 461 [1845]) the court upheld as a lawful exercise of the police power the destruction of a warehouse and its contents by firefighters to create a firebreak; the court decided that because of the overruling necessity of stopping the fire, the city had the right to destroy the structure, and that the owners were not entitled to compensation. But this was obviously an emergency situation justifying a temporary police measure. See Reznick, "Empiricism and the Principle of Conditions," 19-20, and idem, "Land Use Regulation and the Concept of Taking in Nineteenth Century America," University of Chicago Law Review 40 (1973): 854-72, esp. 860-61. I have not found any evidence that the authors of the 1916 New York zoning ordinance turned to the salus populi doctrine to ground their police power arguments.
156. Freund was not alone in maintaining a close relationship between police power and nuisance; the renowned legal scholar Edward S. Corwin lamented in 1990 that the courts still recognized the sic utere doctrine as the "controlling principle" of the police power. Edward S. Corwin, "The Supreme Court and the Fourteenth Amendment," (1909), in Corwin on the Constitution, vol.2, The Judiciary, ed. Richard Loss (Ithaca: Cornell University Press, 1987), 147. On Feund and the police power, see also Novak, "Common Regulation," 1074-75. My treatment of the relationship between the police power and nuisance doctrine has been informed by Scott M. Reznick, "Empiricism and the Principle of Conditions in the Evolution of the Police Power: A Model of Definitional Scrutiny," Washington University Law Quarterly 1 (1979): 1-92, esp. 1-21. Salus populi supreme lex provided another source of police power, but Reznick points out that this was primarily used to justify emergency measures or temporary expansions of public authority. For instance, in Russell v. Mayor of New York (2 Denio 461 [1845]) the court upheld as a lawful exercise of the police power the destruction of a warehouse and its contents by firefighters to create a firebreak; the court decided that because of the overruling necessity of stopping the fire, the city had the right to destroy the structure, and that the owners were not entitled to compensation. But this was obviously an emergency situation justifying a temporary police measure. See Reznick, "Empiricism and the Principle of Conditions," 19-20, and idem, "Land Use Regulation and the Concept of Taking in Nineteenth Century America," University of Chicago Law Review 40 (1973): 854-72, esp. 860-61. I have not found any evidence that the authors of the 1916 New York zoning ordinance turned to the salus populi doctrine to ground their police power arguments.
157. While it is surely correct to point out that Bassett and Whitten thus had an elaborate tradition of building codes, health regulations, economic regulations, and other police power measures to draw upon, to suggest that they should have seen something like Novak's well-regulated society in all of these is to misunderstand just how remote that world-view was from their experience. Although Bassett longed for a judicial articulation of rights of the community, it was far easier to see the lone clear statement of that idea (Shaw's Alger decision) as an interesting aberration. It was far more reasonable to conclude, as did Bassett's primary guide in his police power research, Ernst Freund, that all of those regulations, inspectors, rules, and qualifications, were merely myriad prudent exceptions to the well-established rule that courts preferred unfettered individual liberty as a means to achieve the public good.
158. "The establishment of fire limits has undoubtedly in many cases reduced the possible profits of real estate owners, but these regulations have been upheld." Whitten, "Preliminary Report," 4.
159. Courts had also forced building owners to provide adequate water and sewage facilities for health reasons. Tenement overcrowding had been prevented by "requiring a minimum amount of air space to each occupant." The regulation of building height "certainly has a very direct relation to light, air and ventilation," he observed. So, while health regulations applied mainly to tenements, "very similar provisions have sometimes been enacted with reference to factories and apparently in case of recognized need therefore similar regulations would be valid if applied to office buildings." Whitten, "Preliminary Report," 6, and Freund, Police Power, 119. The promotion of public order and comfort provided less solid footing for planning legislation. The prevention of congestion seemed most promising under this rubric. "Undue congestion" would block streets and interfere with firemen at critical moments, or cause panic in the case of fire, or help spread disease. Though Whitten found no case in which "a building regulation based on prevention of street congestion has been considered by the courts," he thought the case for height regulation would be strengthened by these additional arguments. Whitten, "Preliminary Report," 7.
160. Courts had also forced building owners to provide adequate water and sewage facilities for health reasons. Tenement overcrowding had been prevented by "requiring a minimum amount of air space to each occupant." The regulation of building height "certainly has a very direct relation to light, air and ventilation," he observed. So, while health regulations applied mainly to tenements, "very similar provisions have sometimes been enacted with reference to factories and apparently in case of recognized need therefore similar regulations would be valid if applied to office buildings." Whitten, "Preliminary Report," 6, and Freund, Police Power, 119. The promotion of public order and comfort provided less solid footing for planning legislation. The prevention of congestion seemed most promising under this rubric. "Undue congestion" would block streets and interfere with firemen at critical moments, or cause panic in the case of fire, or help spread disease. Though Whitten found no case in which "a building regulation based on prevention of street congestion has been considered by the courts," he thought the case for height regulation would be strengthened by these additional arguments. Whitten, "Preliminary Report," 7.
161. Courts had also forced building owners to provide adequate water and sewage facilities for health reasons. Tenement overcrowding had been prevented by "requiring a minimum amount of air space to each occupant." The regulation of building height "certainly has a very direct relation to light, air and ventilation," he observed. So, while health regulations applied mainly to tenements, "very similar provisions have sometimes been enacted with reference to factories and apparently in case of recognized need therefore similar regulations would be valid if applied to office buildings." Whitten, "Preliminary Report," 6, and Freund, Police Power, 119. The promotion of public order and comfort provided less solid footing for planning legislation. The prevention of congestion seemed most promising under this rubric. "Undue congestion" would block streets and interfere with firemen at critical moments, or cause panic in the case of fire, or help spread disease. Though Whitten found no case in which "a building regulation based on prevention of street congestion has been considered by the courts," he thought the case for height regulation would be strengthened by these additional arguments. Whitten, "Preliminary Report," 7.
162. Ibid., 2.
163. Ibid., 10.
164. Freund, Police Power, 450.
165. "This is a very important fact to bear in mind in connection with building restriction and the control of city development," he averred. It leads to the generalization that if a proposed system of restriction is approved as good public policy and if in addition while restricting the use of landed property the regulation is of advantage to such property in general there will be a strong presumption in favor of its constitutionality, provided the injury to individual owners is small and incidental. (Whitten, Preliminary Report, 11, 10-12)
166. See Whitten, "Preliminary Report," 44-45.
167. Freund, Police Power, 2, 3.
168. Whitten, "Preliminary Report," 3.
169. Levy, The Law of the Commonwealth and Chief Justice Shaw, 247-54.
170. Bassett collected various definitions as he searched for a way to expand the planning powers of municipal government. The police power is "one of the least limitable of the powers of government"; "it is difficult to define with sharp precision"; "it is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the state." See his miscellaneous notes on the police power, Bassett Papers, Box 10, File 18.
171. Chicago, Burlington & Quinty Railway v. Drainage Commissioners, 200 U.S. 561 at 562-68 and 581-82.
172. Chicago, Burlington & Quincy Railway v. Drainage Commissioners, 200 U.S. 561 at 583.
173. Attorney-General v. Williams, 174 Mass. 476 (1899); Parker v. Commonwealth, 178 Mass. 199 (1901); and Williams v. Parker, 188 U.S. 491 (1903).
174. And would probably not have succeeded with regard to use districting. Compare State ex rel. Twin City Building and Investment Company v. Houghton, 174 N.W. Rep. 885 (1919), where the Minnesota Supreme Court struck down a Minneapolis ordinance compensating a relator for prohibiting him to use his property for an apartment; the court ruled that the ordinance did not take property for public use and thus was not a legitimate use of eminent domain.
175. Chicago, Burlington & Quincy Railway v. Draining Commissioners, 200 U.S. 561 at 584.
176. Chicago, Burlington & Quincy Railway v. Draining Commissioners, 200 U.S. 561 at 592.
177. Chicago, Burlington & Quincy Railway v. Draining Commissioners, 200 U.S. 561 at 584, 593.
178. Noble State Bank v. Haskell, 219 U.S. 104 at 110.
179. In this case, preserving the solvency of bank deposits, and thus "enforcing the primary conditions of successful commerce," fell under the police power; 219 U.S. 104 at 111. Noble is a crucial case for understanding the broad view of the police power taken by some judges in this period. In Noble, Holmes endorsed the principle, established in Camfield v. United States, 167 U.S. 518 (1897), that the police power "extends to all great public needs." In Camfield (at 523-24), Justice Brown had cited Rideout v. Knox, 148 Mass. 368 (1889), a tort case involving a fence erected on private property, as "authority for the proposition that the police power is not subject to any definite limitations, but is co-extensive with the necessities of the case and the safeguard of the public interest." The Rideout decision, written by Holmes, affirmed that the public interest extended to the prohibition of private nuisances even when the nuisance did not threaten the public at large (at 373-74). Holmes cited, as one authority in this regard, Commonwealth v. Alger (at 374).
180. Hudson County Water Co. v. McCarter, 209 U.S. 349 at 355.
181. Noble, 219 U.S. 104 at 112.
182. Ibid., 219 U.S. 575 at 580. Holmes's broad strokes in the first Noble decision prompted opposing counsel to ask for a rehearing. Holmes had to clarify his intent in his later decision.
183. People v. King, 110 N.Y. 418 at 423-24.
184. See, for example, G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 322-28.
185. Chicago, Burlington & Quincy Railway v. Drainage Commissioners, 200 U.S. 561 at 600.
186. Planners were particularly concerned with Eubank v. Richmond, 226 U.S. 137 (1912), in which the Supreme Court struck down a Richmond ordinance requiring municipal authorities to establish building lines, regulate building height, and limit buildings to a percentage of their lots - all goals of the New York zoning effort.
187. Welch v. Swasey, 214 U.S. 91 at 105.
188. See, for instance, Brief for the Plaintiff in Error, 17, in Welch v. Swasey.
189. CBDR, Final Report, 54.
190. So, as Justice Holmes put it, the police power may limit the height of buildings, in a city, without compensation. To that extent it cuts down what otherwise would be the rights of property. But if it should attempt to limit the height so far as to make an ordinary building lot wholly useless, the right of property would prevail over the other public interest, and the police power would fail. (Hudson County Water Co. v. McCarter, 209 U.S. 349 at 355 [1908])
191. Justice Peckham offered a clear example of judicial notice in Lochner v. New York, 198 U.S. 45 at 59. Here, the state of New York argued that the occupation of baker was an unhealthy one, posing sufficient risks to bakery employees that the state needed to limit their hours to ten per day. Among Peckham's objections to the statue was his claim that while bakery work was in small measure unhealthy, generally speaking no one considered the occupation of baker to be especially risky or unsanitary. Judges knew, as did most people, that bakery work was not dangerous in the same degree as, say, mining.
192. In Barbier v. Connolly (1885), for instance, Justice Field upheld a San Francisco ordinance regulating public laundries partly on the ground that local authorities were the best judges of local needs: "Of the necessity of such regulations the municipal bodies are the exclusive judges; at least any correction of their action in such matters can come only from the State legislature or State tribunals." Barbier v. Connolly, 113 U.S. 27 at 30.
193. Freund, Police Power, 14.
194. Ibid., 631, 633, 632.
195. Ibid., 633.
196. Ibid., 634. Quoted verbatim in the CBDR, Final Report, 53.
197. Ibid., 634. Quoted verbatim in the CBDR, Final Report, 53.
198. Ibid., 632, 633.
199. Ibid., 57.
200. That dirt, filth, nastiness in general, are great promoters of disease, that they breed pestilence and contagion, sickness and death, cannot be successfully denied. There is scarcely a dissent from the general belief on the part of all who have studied the disease that cholera is essentially a filth disease. The so-called ship fever or jail fever arises from filth; most diseases are aggravated by it. That opportunities, conveniences for the use of water in these tenement houses will unquestionably tend towards and be followed by more cleanly living on the part of the occupants of those houses cannot, it seems to me, admit of any rational doubt. (Health Department v. factor, 145 N.Y. 44 at 48, 49)
201. Health Department v. Rector, 145 N.Y. 32 at 50.
202. Tenement House Dept. v. Moeschen, 179 N.Y. 325 at 331-34.
203. Barbier v. Connolly, 113 U.S. 27 at 31, 32.
204. Yick Wo v. Hopkins, 118 U.S. 365 at 366-68.
205. In re Jacobs, 98 N.Y. 98 at 104, 113. See also People v. Marx, 99 N.Y. 377 (1885), in which a New York court declared invalid a law preventing the sale of oleomargarine on the grounds that protecting public health was not the legislature's underlying motivation.
206. In Clark v. Nash, 198 U.S. 361 (1905), for instance, the Supreme Court considered a Utah statute allowing Nash, a private citizen, to condemn a right of way across private property without compensation in order to convey water of irrigation. The state court upheld the statute, and Justice Peckham, as was his wont, cited the state court's familiarity with local conditions as a strong presumption in favor of the statute. Peckham readily admitted that most states would not permit condemnation for strictly private purposes to proceed under the police power. But Utah was an especially arid state and its general economic development may in fact have depended upon the conveyance of scarce water, even when it appeared to violate property rights.
207. Bacon v. Walker, 204 U.S. 311 at 318, 319.
208. Reinman v. Little Rock, 237 U.S. 171 at 172. Welch v. Swasey, which cleared the way for simple building height regulations, was of course a vital precedent.
209. Reinman v. Little Rock, 237 U.S. 171 at 174.
210. Miscellaneous notes on law, Bassett Papers, Box 10, File 18.
211. Reinman v. Little Rock, 237 U.S. 171 at 176.
212. Reinman v. Little Rock, 237 U.S. 171 at 177.
213. Ex parte Hadacheck, 132 Pac. Rep. 584 at 585, and Hadacheck v. Sebastian, 239 U.S. 394 at 405.
214. Hadacheck v. Sebastian, 239 U.S. 394 at 412.
215. Hadacheck v. Sebastian, 239 U.S. 394 at 410 (emphasis added).
216. Miscellaneous notes, Bassett Papers, Box 10, File 18.
217. Herbert Swan, "Making the New York Zoning Ordinance Better," Architectural Forum 35 (1921): 126.
218. CBDR, Final Report, 45-46 (Chapter 470 of Laws of the State of New York, 1914).
219. Ibid., 53 (emphasis added).
220. Advocates of sociological jurisprudence backed this as a way to inform the courts of the social and economic circumstances that inspired calls for new legislation. The famous "Brandeis brief" authored by Louis D. Brandeis and Josephine Goldmark for Muller v. Oregon (1908, in which the U.S. Supreme Court upheld a law limiting working hours for women) was filled with statistics, medical opinions, and other information relating to the health effects of long work hours on women. See Skocpol, Protecting Soldiers and Mothers, 394.
221. CBDR, Final Report, 86-157 and passim.
222. Ibid., 19, 40-41; Bassett to Leon Hornstein, January 3, 1922, Bassett Papers, Box 3, File 133. This was done with regard to other features of the ordinance as well.
223. Minutes of the Heights of Building Commission, May 26, 1913, New York City Municipal Archives, Box 2507, 4.
224. For a discussion of this process, see Keith D. Revell, "Law Makes Order: The Search for Ensemble in the Skyscraper City, 1890-1930," in The American Skyscaper: A Cultural Reconsideration (forthcoming).
225. New York Times, November 28, 1912, 1:3; December 2, 1912, 10:2; and December 3, 1912, 14:7.
226. Digest of Legal Conference, July 7, 1913, 3, Heights of Buildings Commission Papers, Box 2507. The same point was acknowledge by the CBDR: We cannot justify more stringent regulations for dwellings in the suburbs than in Lower Manhattan on the ground that light, air and comfort for the residents of the suburbs are of greater importance than for the residents of Lower Manhattan (CBDR Final Report, 54)
227. Digest of Legal Conference, July 7, 1913, 3, Heights of Buildings Commission Papers, Box 2507. The same point was acknowledge by the CBDR: We cannot justify more stringent regulations for dwellings in the suburbs than in Lower Manhattan on the ground that light, air and comfort for the residents of the suburbs are of greater importance than for the residents of Lower Manhattan (CBDR Final Report, 54)
228. Ibid., 55.
229. Ibid., 54.
230. Ibid., 56 (emphasis added).
231. Fischler makes this same argument; see "Health, Safety, and the General Welfare," 692-94.
232. Alfred Bettman, "Constitutionality of Zoning," Harvard Law Review 37 (1924): 845, 839, 841.
233. Argument of Edward M. Bassett, Esq., In Behalf of the District of Columbia, United States of America, on the relation of Annie Steerman, Plaintiff, vs. District of Columbia et al, Defendants, April 29, 1925, 158-59, Bassett, Papers Box 11.
234. On the problem of change and constitutional interpretation, see generally Horwitz, "Foreword: The Constitution of Change: Legal Fundamentality wihtout Fundamentalism," 32-117, esp. 51-56. At times, zoning advocates, and proponents of an expanded police power generally,used the "changed circumstances" argument in the sense that constitutional provisions had to adapt to a changing world: more was understood about the spread of disease than previously, therefore what was formerly beyond the scope of regulation was now within that scope. However, zoning debates also produced the more radical argument that the constitutional guarantees were themselves outdated and were only meaningful in terms of their application to specific circumstances. Many post-Euclid decisions reflect this latter view.
235. The most important case, Lincoln Trust Company v. Williams Building Corporation, concerned a real estate company that contracted to purchase property only one month after the ordinance was passed. The company later attempted to back out of that purchase agreement on the grounds that the zoning ordinance imposed an incumbrance on the property. The state supreme court rejected this view, declaring that "in a great metropolis like New York, in which the public health, welfare, convenience, and common good are to be considered, the resolution was not an incumbrance, since it was a proper exercise of the police power." Lincoln Trust Company v. Williams Building Corporation, 229 NY 313 at 317 (1920), reversing 183 App. Div. 225 (1918). See also Anderson v. Steinway & Sons, 221 NY 639 (1917) affirming 178 App. Div. 507 (1917). However, no property owner directly challenged the ordinance, probably in large measure because Bassett worked hard to avoid such a confrontation.
236. This section focuses on store exclusion. Cases involving apartments begin with a decision from East Cleveland, Ohio, where an apartment developer challenged a 1919 ordinance creating single-family residential districts. Although Robert Whitten drafted the ordinance, the city failed to produce testimony linking the restrictions to health and safety. Instead, the judge supplied his own sermon against apartments, taking judicial notice of their lack of adequate ventilation, discussing the evils of Murphy beds, and lambasting the "horde of mercenary second-mortgage curbstone brokers and real-estate pirates" who controlled the apartment business (State ex rel. Morris v. East Cleveland, 31 Ohio Dec. 98 at 108, 110, 111, and 113). On rehearing, the city did present expert testimony on the health and safety aspects of low-density housing: apartments shut off light and air, created noise, increased fire hazards, and destroyed the value of single-family homes. In light of these facts, the discrimination against apartments was reasonable within the context of an overall districting plan that permitted apartments and homes in separate parts of the city (State ex rel. Morris v. Osborn, 22 Ohio N.P. 549 [1920]; William M. Randle, "Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid v. Ambler," in Zoning and the American Dream: Promises Still To Keep, ed. Charles M. Haar and Jerold S. Kayden [Chicago: American Planning Association, 1989], 34, 39-40. I suspect that Whitten was betting that the courts would place the burden of demonstrating that the ordinance was unreasonable on the apartment developer). Other cases involving apartments include State ex rel. Lachtman v. Houghton, 134 Minn. 226 (1916) and State ex rel. Beery v. Houghton, 164 Minn. 146 (1925). On residential exclusion and apartments, see also Martha A. Lees, "Preserving Property Values? Preserving Proper Homes? Preserving Privilege?: The Pre-Euclid Debate over Zoning for Exclusively Private Residential Areas, 1916-1926," University of Pittsburgh Law Review 56 (1994): 367-439.
237. This section focuses on store exclusion. Cases involving apartments begin with a decision from East Cleveland, Ohio, where an apartment developer challenged a 1919 ordinance creating single-family residential districts. Although Robert Whitten drafted the ordinance, the city failed to produce testimony linking the restrictions to health and safety. Instead, the judge supplied his own sermon against apartments, taking judicial notice of their lack of adequate ventilation, discussing the evils of Murphy beds, and lambasting the "horde of mercenary second-mortgage curbstone brokers and real-estate pirates" who controlled the apartment business (State ex rel. Morris v. East Cleveland, 31 Ohio Dec. 98 at 108, 110, 111, and 113). On rehearing, the city did present expert testimony on the health and safety aspects of low-density housing: apartments shut off light and air, created noise, increased fire hazards, and destroyed the value of single-family homes. In light of these facts, the discrimination against apartments was reasonable within the context of an overall districting plan that permitted apartments and homes in separate parts of the city (State ex rel. Morris v. Osborn, 22 Ohio N.P. 549 [1920]; William M. Randle, "Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid v. Ambler," in Zoning and the American Dream: Promises Still To Keep, ed. Charles M. Haar and Jerold S. Kayden [Chicago: American Planning Association, 1989], 34, 39-40. I suspect that Whitten was betting that the courts would place the burden of demonstrating that the ordinance was unreasonable on the apartment developer). Other cases involving apartments include State ex rel. Lachtman v. Houghton, 134 Minn. 226 (1916) and State ex rel. Beery v. Houghton, 164 Minn. 146 (1925). On residential exclusion and apartments, see also Martha A. Lees, "Preserving Property Values? Preserving Proper Homes? Preserving Privilege?: The Pre-Euclid Debate over Zoning for Exclusively Private Residential Areas, 1916-1926," University of Pittsburgh Law Review 56 (1994): 367-439.
238. Pierson, "When Effect Becomes Cause," 601.
239. See Walter L. Fisher, "Legal Aspects of the Plan of Chicago," in Daniel H. Burnham and Edward H. Bennett, Plan of Chicago [1908], ed. Charles Moore (New York: Princeton Architectural Press, 1993), 127, 140-41; and Fenster "'A Remedy on Paper,'" 1093-1123.
240. See Walter L. Fisher, "Legal Aspects of the Plan of Chicago," in Daniel H. Burnham and Edward H. Bennett, Plan of Chicago [1908], ed. Charles Moore (New York: Princeton Architectural Press, 1993), 127, 140-41; and Fenster "'A Remedy on Paper,'" 1093-1123.
241. Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States (New York: Oxford University Press, 1985), 174-75.
242. In re Opinion of the Justices, 127 N.E. Rep. 525 (1920) at 531.
243. Welch v. Swasey, 214 U.S. 91 at 105.
244. I have found eight cases prior to In re Opinion of the Justices in which the phrase "rational relation" was used, although none concerned use districting or height regulations. For example, the Massachusetts court used it in a 1915 opinion on legislation affecting the discharging of railroad employees (In re Opinion of the Justices, 220 Mass. 267). "Rational relation" was used in six cases between In re Opinion and Euclid: Brett v. Building Commissioner of Brookline, 250 Mass. 73; Pritz v. Messer, 112 Ohio 628, Fourcade v. City of San Francisco, 196 Cal. 655, Aurora v. Burns, 319 Ill. 84, Deynzer v. City of Evanston, 319 Ill. 226, and White's Appeal, 287 Pa. 259 (against zoning). This innovation also spawned further variations in the substantial relation test, such as the "pertinent relation" version (Ware v. City of Wichita, 113 Kan. 153 [1923]), and the "reasonable relation" version (Zahn v. Board of Public Works, 195 Cal. 497 [1925]). It is not my intention to suggest here that the rational or reasonable relation test completely supplanted the substantial relation test. Judges continued to use the older language. My point is to show that there was inconsistency in these cases and judges could find ways to slant their decisions toward or against zoning. In the case of "rational" relation, Sutherland picked up the usage, perhaps suggesting to his interpreters that he was accepting a lesser standard than the substantial relation test.
245. Miller v. Board of Public Works, 195 Cal. 477 (1925) at 489.
246. Argument of Edward M. Bassett, Esq., In Behalf of the District of Columbia, United States of America, on the relation of Annie Steerman, Plaintiff, vs. District of Columbia et al, Defendants, April 29, 1925, 150, Bassett Papers, Box 11. Bassett added that A peculiar thing in this subject of zoning is this: that the knock down and drag outs on the subject of zoning [that is, those cases were zoning was vigorously struck down] have been entirely in the state courts. I presume that the reason of that is that the state methods, the interpretation of the common law, especially the interpretation of common law nuisance, began before there was any United States Constitution, and that states have in some cases been opposed to this novel exercise of the police power. The United States Supreme Court, and the other United States Courts however, seem to have followed a line in all of their cases which has been somewhat more liberal in respect to zoning. (157). As Novak has shown, this interpretation is incorrect. However, it does illustrate how thoroughly the categorical approach to police power jurisprudence had influenced state court decisions. From Bassett's perspective, the legacy of nuisance doctrine in state court rulings kept the police power locked within a narrow range of legitimate regulatory activity.
247. Fitzhugh v. City of Jackson, 132 Miss. 585 (1923) at 609.
248. Pennsylvania Coal Company v. Mahon, 260 U.S. 393 at 415.
249. Mayor and Council of Wilmington v. Turk, 129 Atl. Rep. 512 (1925) at 522. In this case, the court struck down a comprehensive zoning ordinance which prevented a nurse from using her home to see private patients. While admitting that cases like Bacon v. Walker and Noble State Bank v. Haskell used sweeping language to endorse the use of the police power, the court emphasized that such broad generalizations as these, if given too generous acceptance, could, under the manipulation of shrewd and clever reasoners, be made to draw within the grasp of the police power subjects for regulation and prohibition to which it is difficult to believe any court would give sanction. (at 515)
250. Goldman v. Crowther, 147 Md. 282 at 295. Holmes's opinion in the Pennsylvania Coal case was quoted in Goldman at 296, in Pacific Palisades Association v. City of Huntington Beach, 196 Cal. 211 at 217, in Ambler Realty Co. v. Village of Euclid, 297 Fed. 307 at 311-12, in dissents in Kroner v. Portland, 240 Pac. Rep. 536 at 542 and 547, and in Argument of Edmund Campbell, Esq., In Behalf of the Plaintiff, on the relation of Annie Steerman, Plaintiff, vs. District of Columbia et al, Defendants, April 29, 1925, 90, Bassett Papers, Box 11.
251. Lawrence Veiller, "Mistakes to be avoided in Zoning," typescript, 4, Bassett Papers, Box 12.
252. Calvo v. City of New Orleans, 136 La. 480 (1915); State ex rel. Blaise v. City of New Orleans, 142 La. 73 (1917) was also overturned.
253. State ex rel. Civello v. City of New Orleans, 154 La. 271 at 273, 277, 278, 281-84 (there were other ordinances involving other businesses that were covered by the same ruling). Arguably, the state statute and subsequent constitutional amendment swayed the Court's opinion. However, the opinion goes well beyond acknowledging specific statutory and constitutional authority for the municipal ordinance. The opinion exhibits both an articulate defense of zoning and an extraordinary deference to local authorities. At 282 the Court said: It is not necessary for the validity of the ordinance in question that we should deem the ordinances justified by consideretion of public health, safety, comfort, or the general welfare. It is sufficient that the municipal council could reasonably have had such considerations in mind. If such considerations could have justified the ordinances, we must assume that they did justify them. And after launching into a litany of planning, health, and safety considerations for zoning - including economy of street paving and reducing fire hazards - the Court said at 283: If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. The planning rationale articulated in the court's opinion, along with its deferral to the municipal council, would be quoted at length by Justice Sutherland in Euclid v. Ambler, 272 U.S. 365 at 393. An additional irony of this case is that lawyers for the grocery store owner argued that the ordinance was void because it was not a comprehensive zoning ordinance: "the lawful exercise of this authority by any municipality must be through a comprehensive zoning of the entire city and not a particular street or streets" (McCloskey and Benedict, Amici Curiae, Brief in Support of Relator and Appellee's Position, 9). This argument, ultimately rejected by the Court (at 286), was clearly an attempt to show that the ordinance in question, now defended as zoning, was really just an effort by one group of property owners to use the police power to restrict the use of surrounding property for their own benefit. It was probably for this reason that Bassett did not view this case as truly supportive of zoning.
254. Bassett to Frederick L. Olmsted, January 5, 1923, Bassett Papers, Box 11; Ignaciunas v. Risley, 98 N.J.L. 712 at 717-18. See also State ex rel. Lachtman v. Houghton, 158 N.W. Rep. 1017 (1916), in which the Minnesota Supreme Court struck down a Minneapolis ordinance restricting a store from a residential block. Zoning had a very difficult time winning acceptance in New Jersey courts, requiring the legislature to pass nine different measures regarding zining before adopting the Standard Enabling Act (recommended by the Department of Commerce, with Bassett as a legal advisor) in 1924; see Newman F. Baker, "Zoning Legislation," Cornell Law Quarterly 11 (1926): 176-77.
255. State ex rel. Penrose Investment Company v. James N. McKelvey, 301 Mo. 1 at 21, 22-23.
256. State ex rel. Penrose v. McKelvey, 301 Mo. 1 at 24, 34. At 26-27, White wrote: What may be a nuisance now is a very different thing from what may have been a nuisance in time gone by; what affects the public health and safety now is very different from what was considered as affecting the public health and safety heretofore. And that was not the only thing that had changed: Standards of living are much higher than they used to be and are growing higher and more exacting with the material improvement of the people's condition. It has not been so very long since people lived over their stables, allowed chickens to roost in the rafters of their dwelling, and pigs to make themselves comfortable under the floor. Such was not known to be unsanitary. (at 33)
257. Kroner v. City of Portland, 240 Pac. Rep. 536 at 537, 538, 539, 540.
258. Kroner v. City of Portland, 240 Pac. Rep. 536 at 541, 542, 543, 544, 545. For a very insighful analysis of this case, see Arthur H. Kent, "Consitutional Law: Municipal Ordinance Establishing a Comprehensive Plan of Use: Zoning is Within the Police Power," Oregon Law Review 5 (1926): 140-53.
259. An often-cited case against zoning is Spann v. Dallas, 111 Tex. 350 (1921), which involved a Dallas, Texas, ordinance prohibiting businesses in residence districts. The state supreme court struck down the ordinance in 1921, and the case was often treated as one of the various post-New York City zoning efforts to fail. However, the ordinance in question was passed in 1915. It is thus more like the ordinances struck down in The People ex rel. Lincoln Ice Company v. The City of Chicago et al., 260 Ill. 150 (1913), The People ex rel. Julius P. Friend v. The City of Chicago et al., 261 Ill. 16 (1913), and Willison v. Cooke, 54 Colo. 320 (1913), than it is like zoning ordinances justified with the comprehensiveness rationale. As a result, Bassett was never particularly concerned about Spann as a blow against zoning. Nevertheless, the Texas court's sharp criticism of arbitrary and confiscatory regulations and spirited defense of individual property rights represented one of the more articulate arguments against ambitious land-use regulations. See, for example, Kenneth Regan, "You Can't Build That Here: The Constitutionality of Aesthetic Zoning and Architectural Review," Fordham Law Review 58 (1990): 1013-31, esp. 1021.
260. Fitzhugh v. City of Jackson, 132 Miss. 585 (1923) at 590, 608.
261. The other leading case here was Goldman v. Crowther, 147 Md. 282 (1925), in which the Maryland Supreme Court struck down a Baltimore ordinance which prohibited businesses in residence districts. See also Pacific Palisades Association v. City of Huntington Beach, 196 Cal. 211 (1925), in which the California Supreme Court struck down a Huntington Beach zoning ordinance that prohibited the use of oil drilling equipment in one section of the city although there were other oil wells nearby. Many of these ordinances suffered from some very basic legal flaws. Several lacked an enabling act, donating the necessary police power authority from the state to the municipality. Others included provisions which allowed local property owners to change zoning restrictions by vote (Fitzhugh v. City of Jackson, 132 Miss. 585 at 602). However, judges usually took the opportunity to argue that, even in the absence of these basic flaws, the police power simply did not justify the regulations in question.
262. Randle, "Professors, Reformers, Bureaucrats, and Cronies," 40; Ambler Realty Co. v. Village of Euclid, et al., 297 Fed. 307 at 309, and Village of Euclid et al., v. Ambler Realty Company, 272 U.S. 365 at 379, 384.
263. Argument of Edward M. Bassett, Esq., In Behalf of the District of Columbia, United States of America, on the relation of Anine Steerman, Plaintiff, vs. District of Columbia et al, Defendants, April 29, 1925, 163, Bassett Papers, Box 11.
264. Bettman to D. J. Underwood, September 29, 1924, as cited in Daniel R. Mandelker and Roger A. Cunningham, Planning and Control of Land Development: Cases and Materials (Indianapolis: Bobs-Merill, 1979), 213 (n.5); Randle, "Professors, Reformers, Bureaucrats, and Cronies," 32.
265. Bettman to D. J. Underwood, September 29, 1924, as cited in Daniel R. Mandelker and Roger A. Cunningham, Planning and Control of Land Development: Cases and Materials (Indianapolis: Bobs-Merill, 1979), 213 (n.5); Randle, "Professors, Reformers, Bureaucrats, and Cronies," 32.
266. Ambler Realty Co. v. Village of Euclid, et al., 297 Fed. 307 at 314, 315, 317.
267. Ambler Realty Co. v. Village of Euclid, et al., 297 Fed. 307 at 313-14. Even favorable court decisions rarely resulted in a persuasive case for comprehensiveness. In Pritz v. Messer (also in May 1925), the Supreme Court of Ohio reluctantly upheld a Cincinnati zoning ordinance The court openly questioned whether zoning would in fact reduce congestion or enhance health (although a cadre of experts testified that it would). The specific claims for zoning often appeared fanciful when subjected to a strict substantial relation test. However, after repeatedly emphasizing that it was not ruling on the wisdom of zoning and that it was taking a broad view of the possible future value of the ordinance as a whole, the court did finally "see a real relation between the substantial material welfare of the community and this effort of the city to plan its physical life." Pritz v. Messer, 112 Ohio State 628 at 638, 639, 644 645. Bettman submitted an amicus curiae brief in this case.
268. City of Aurora v. Burns, 319 111. 84 at 85-87.
269. The People ex rel. Julius P. Friend vs. The City of Chicago et al., 261 Ill. 16. Admittedly, this case was decided technically on the grounds that the municipality did not have the power to exclude retail stores from residential districts; however, the court made a point of saying that even if it did have that power, the ordinance would not have been a legitimate exercise of the police power (at 20). State ex rel. Friend v. Chicago was mentioned specifically by Judge Westenhaver as illustration of the way courts have "uniformly and inflexibly stricken down zoning ordinances restricting the normal and legitimate use of private property"; Ambler Realty Co. v. Village of Euclid, et al., 297 Fed. 307 at 315.
270. "Brief and Argument by Counsel as Amici Curiae," 6, 7.
271. "Brief and Argument by Councel as Amici Curiae," 7-8, 15-17, 92-103, 111-13, 52. Leon Hornstein was one of the authors of the amicus brief. He had served as counsel for the City of Chicago in their losing effort in Friend. In December, 1922, Hornstein, now Assistant Corporation Counsel for Chicago, traveled to New York to consult with Edward Bassett in order to prepare the Chicago zoning ordinance; see memorandum, January 3, 1923, and Bassett to Hornstein, January 2, 1923, Bassett Papers, Box 3, File 133.
272. City of Aurora v. Burns, 319 Ill. 84 at 95, 98. Compare Bassett: Now, zoning is not at all a question of nuisance. It is a comprehensive plan of bringing orderliness for the health and safety of the community by a reasonable application of the police power and it ,s not to be decided by what is the situation in each particular structure or store. (Argument of Edward M. Bassett Esq., In Behalf of the District of Columbia, United States of America, on the relation of Annie Steerman, Plaintiff, vs. District of Columbia et al, Defendants, April 29, 1925, page 162, Bassett Papers, Box 11)
273. Mayor and Council of Wilmington v. Turk, 129 Atl. Rep. 512 at 521-22. Sounding very much like Justice Brewer in his dissenting opinion in C. B. & Q., the court went on to add (at 522): The construction of streets, the affording of police protection, etc., are but the ordinary duties which municipal governments owe their residents. The agencies for affording them are to be supplied by the city. It may or may not provide them in a sufficient and adequate manner. But it is the business of the city to provide them in such degree as it thinks the circumstances demand. It being a strictly municipal function to do so, it is likewise the municipal duty to pay for them. They are for the benefit of all and should be paid for out of the common treasury. That taxing power is available for funds to meet these outlays. To require the owner of private property to cease using it in an unobjectionable manner, solely because it is desired to save the citizens generally from paying more taxes for street and police expenditure, approaches very closely, if not completely, to a taking of property for public use without just compensation. In other words, the planning benefits of zoning simply did not carry any weight with the court; if the city wanted more police protection or better roads, it would have to pay for them through the taxing power or through eminent domain proceedings rather than by regulating private rights.
274. Eugene McQuillan, "Constitutional Validity of Zoning Under the Police Power," St. Louis Law Review 11(1926): 83, 92.
275. Bettman presented the brief to a panel of experts at Lawrence Veiller's New York office, including Edward Bassett, George Ford, Lawrence Veiller (who was on the HBC) Flavel Shurtleff (a New York planning advocate who worked closely with Bassett), John Nolen (a Boston planner who had testified before the HBC), and Andrew Crawford (a Philadelphia planner whom Bassett knew from the Planning Conference debates on planning and the law) See George B. Ford to Lawrence Veiller, April 30, 1925, and memo from Lawrence Veiller, December 24, 1925, George B. Ford Papers, Frances Loeb Library, Harvard University, Cambridge, Mass.
276. James Metzenbaum, "Brief on Behalf of Appellants," 62-73, and Alfred Bettman "Motion for Leave to File Brief, Amici Curiae and Brief on Behalf of the National Conference on City Planning, the National Housing Association and the Massachusetts Federation of Town Planning Boards, Amici Curiae," Appendix, esp. 63-77.
277. James Metzenbaum, "Brief on Behalf of Appellants," 62-73, and Alfred Bettman "Motion for Leave to File Brief, Amici Curiae and Brief on Behalf of the National Conference on City Planning, the National Housing Association and the Massachusetts Federation of Town Planning Boards, Amici Curiae," Appendix, esp. 63-77.
278. Bettman, Amici Curiae brief, 31, 27; Bettman quoted at length from his 1924 article "Constitutionality of Zoning," Harvard Law Review 37 (1924): 834-59, in which he argued that "comprehensiveness puts the 'reason' into 'reasonableness.'"
279. Bettman, Amici Curiae brief, 31, 27; Bettman quoted at length from his 1924 article "Constitutionality of Zoning," Harvard Law Review 37 (1924): 834-59, in which he argued that "comprehensiveness puts the 'reason' into 'reasonableness.'"
280. Metzenbaum, "Brief on Behalf of Appellants," 49-50.
281. For example, Sutherland's views - "the theology of profits, the subordination of politics to economics, a theory of constitutional interpretation that considered 'certain fundamental social and economic laws . . . beyond the right of official control'" - are described as "deep-freeze dogmas" in Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (Hamden, Conn.: Archon Books, 1968), 206-7, 363.
282. Hadley Arkes, "Who's the Laissez-Fairest of Them All? The Tradition of Natural Rights in American Law," Policy Review (1992) : 84, and more generally, idem, The Return of Justice Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994).
283. Hadley Arkes, "Who's the Laissez-Fairest of Them All? The Tradition of Natural Rights in American Law," Policy Review (1992) : 84, and more generally, idem, The Return of Justice Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994).
284. See Alfred McCormack, "A Law Clerk's Recollections," Columbia Law Review 46 (1946): 712. Stone apparently persuaded Sutherland to change his views on other cases; see Mason, Harlan Fiske Stone, 220-21.
285. See Alfred McCormack, "A Law Clerk's Recollections," Columbia Law Review 46 (1946): 712. Stone apparently persuaded Sutherland to change his views on other cases; see Mason, Harlan Fiske Stone, 220-21.
286. As Theda Skocpol observed of the Supreme Court's decision in Muller v. Oregon, 208 U.S. 412, surely the judges of the Progressive Era were also responding to the general climate of public opinion about women's separate - and special - roles as mothers. Courts are profoundly rhetorical institutions bound to be affected by moral understandings deeply embedded in categories of political discourse. (Protecting Soldiers and Mothers, 371) The same could be said, it seems to me, about Sutherland and the prevailing enthusiasm for suburbanization.
287. Euclid v. Ambler, 272 U.S. 365 at 386-87. Sutherland concluded with an even more sweeping endorsement of the flexible application of the police powers (at 397): In the realm of constitutional law, especially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted. This process applies with peculiar force to the solution of questions arising under the due process clause of the Constitution as applied to the exercise of flexible powers of police, with which we are here concerned. The battle over the distinction between "meaning" (which Sutherland considered fixed) and "application" (which he considered flexible) came to a head in the famous exchange between Sutherland and Chief Justice Hughes in Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934). In that case, after prodding by Benjamin Cardozo, Hughes upheld an emergency debtor relief law with his now famous defense of the changing "meaning" of the Constitution (at 442-43): It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the condition and outlook of their time, would have placed on them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning - "We must never forget that it is a constitution we are expounding" (McCulloch v. Maryland) - "a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." . . . Nor is it helpful to attempt to draw a fine distinction between the intended meaning of the words of the Constitution and their intended application. . . . The vast body of law which has been developed was unknown to the fathers, but it is believed to have preserved the essential content and the spirit of the Constitution. To which Sutherland responded (at 448-49, 451): A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time. . . . The provisions of the Federal Constitution, undoubtedly, are pliable in the sense that in appropriate cases they have the capacity of bringing within their gasp every new condition which falls within their meaning. But, their meaning is changeless; it is only their application which is extensible. (emphasis added) This may indeed seem like a hair-splitting exercise, but it does help explain how Sutherland was able to accomodate change within an apparently static conception of the Constitution. On this exchange and its implications for constitutional interpretation, see Gillman, "Collapse of Constitutional Originalism," 222-26 and Horwitz, "Foreward: The Constitution of Change," 54-56.
288. Euclid v. Ambler, 272 U.S. 365 at 386-87. Sutherland concluded with an even more sweeping endorsement of the flexible application of the police powers (at 397): In the realm of constitutional law, especially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted. This process applies with peculiar force to the solution of questions arising under the due process clause of the Constitution as applied to the exercise of flexible powers of police, with which we are here concerned. The battle over the distinction between "meaning" (which Sutherland considered fixed) and "application" (which he considered flexible) came to a head in the famous exchange between Sutherland and Chief Justice Hughes in Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934). In that case, after prodding by Benjamin Cardozo, Hughes upheld an emergency debtor relief law with his now famous defense of the changing "meaning" of the Constitution (at 442-43): It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the condition and outlook of their time, would have placed on them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning - "We must never forget that it is a constitution we are expounding" (McCulloch v. Maryland) - "a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." . . . Nor is it helpful to attempt to draw a fine distinction between the intended meaning of the words of the Constitution and their intended application. . . . The vast body of law which has been developed was unknown to the fathers, but it is believed to have preserved the essential content and the spirit of the Constitution. To which Sutherland responded (at 448-49, 451): A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time. . . . The provisions of the Federal Constitution, undoubtedly, are pliable in the sense that in appropriate cases they have the capacity of bringing within their gasp every new condition which falls within their meaning. But, their meaning is changeless; it is only their application which is extensible. (emphasis added) This may indeed seem like a hair-splitting exercise, but it does help explain how Sutherland was able to accomodate change within an apparently static conception of the Constitution. On this exchange and its implications for constitutional interpretation, see Gillman, "Collapse of Constitutional Originalism," 222-26 and Horwitz, "Foreward: The Constitution of Change," 54-56.
289. Euclid v. Ambler, 272 U.S. 365 at 387-88 (emphasis added). The reference here is to Sutherland's own decision in Radice v. New York, 264 U.S. 292 (1924) at 294. In this case, the court upheld a New York statute prohibiting the employment of women in restaurants between 10 pm and 6 am. Sutherland was impressed by the "mass of information" showing the "more delicate organism" of women, which made a regulatory classification afffecting their work conditions legitimate: Where the constitutional validity of a statute depends on the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. (emphasis added) Sutherland added (at 296): Of course, the mere fact of classification is not enough to put a statute beyond the reach of the equality provision of the Fourteenth Amendment. Such classification must not be "purely arbitrary, oppressive or capricious." American Sugar Refining Co. v. Louisiana, 179 U.S. 89, 92. But the mere production of inequality is not enough. Every selection of persons for regulation so results, in some degree. The inequality produced, in order to encounter the challenge of the Constitution, must be "actually and palpably unreasonable and arbitrary." Arkansas Natural Gas Co. v. Railroad Commission, 261 U.S. 379, 384, and cases cited. That a stalwart defender of limited government would give this much leeway to regulatory classifications can perhaps be explained by the tendency of judges and reformers to think of women as a special class of persons requiring special legal protection - a tactic used more than once to make a case for planning regulations. For example, counsel for defendants in Welch v. Swasey argued that the health and safety of women and children required a lower height limit in residential areas. They cleverly connected the problem of building height to the U.S. Supreme Court's recent decision upholding a labor law for women, Muller v. Oregon, 208 U.S. 412, arguing that the safety of women and children required the state to intervene and restrict the use of private property; see Brief for Dependents in Error (Francis C. Welch v. George R. Swasey, et al.), 10, 11. As Theda Skocpol has shown, the protection of women and children proved to be an especially important line of argument during the early battles leading to the creation of the welfare state; see Protecting Soldiers and Mothers. More generally, however, the courts saw a great many regulatory schemes that were suited to the peculiarities of local situations; although they resulted in unequal treatment, that inequlity was justified by local conditions.
290. Euclid v. Ambler, 272 U.S. 365 at 387-88 (emphasis added). The reference here is to Sutherland's own decision in Radice v. New York, 264 U.S. 292 (1924) at 294. In this case, the court upheld a New York statute prohibiting the employment of women in restaurants between 10 pm and 6 am. Sutherland was impressed by the "mass of information" showing the "more delicate organism" of women, which made a regulatory classification afffecting their work conditions legitimate: Where the constitutional validity of a statute depends on the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. (emphasis added) Sutherland added (at 296): Of course, the mere fact of classification is not enough to put a statute beyond the reach of the equality provision of the Fourteenth Amendment. Such classification must not be "purely arbitrary, oppressive or capricious." American Sugar Refining Co. v. Louisiana, 179 U.S. 89, 92. But the mere production of inequality is not enough. Every selection of persons for regulation so results, in some degree. The inequality produced, in order to encounter the challenge of the Constitution, must be "actually and palpably unreasonable and arbitrary." Arkansas Natural Gas Co. v. Railroad Commission, 261 U.S. 379, 384, and cases cited. That a stalwart defender of limited government would give this much leeway to regulatory classifications can perhaps be explained by the tendency of judges and reformers to think of women as a special class of persons requiring special legal protection - a tactic used more than once to make a case for planning regulations. For example, counsel for defendants in Welch v. Swasey argued that the health and safety of women and children required a lower height limit in residential areas. They cleverly connected the problem of building height to the U.S. Supreme Court's recent decision upholding a labor law for women, Muller v. Oregon, 208 U.S. 412, arguing that the safety of women and children required the state to intervene and restrict the use of private property; see Brief for Dependents in Error (Francis C. Welch v. George R. Swasey, et al.), 10, 11. As Theda Skocpol has shown, the protection of women and children proved to be an especially important line of argument during the early battles leading to the creation of the welfare state; see Protecting Soldiers and Mothers. More generally, however, the courts saw a great many regulatory schemes that were suited to the peculiarities of local situations; although they resulted in unequal treatment, that inequlity was justified by local conditions.
291. Euclid v. Ambler, 272 U.S. 365 at 388. Admittedly, this route through nuisance doctrine seems, on one level, a bit silly. As law professor Arthur Kent remarked, to attempt to justify zoning ordinances as a species of nuisance regulation constituted "the baldest kind of fictitious reasoning." Instead, he suggested that if zoning is to be supported at all, it would seem to be upon the very ground that the common law relating to nuisances is completely inadequate to solve the great problems affecting the public welfare which the growth of the modern municipality and the flow of population to urban areas have created. The danger in this suggestion lies in the possibility, very real at the time, that without any reference to nuisance doctrine as a guide of some sort, there might not be any criteria to stop the continued extension of the police power to cover every restriction imaginable: "if zoning once be allowed, where will it stop?" Kent, "Constitutional Law: Municipal Ordinance Establishing a Comprehensive Plan of Use: Zoning is Within the Police Power," 143, 145, 152.
292. Euclid v. Ambler, 272 U.S. 365 at 390.
293. Euclid v. Ambler, 272 U.S. 365 at 390-91.
294. Quoting Aurora in Euclid at 392-93: "the exclusion of places of business from residential districts is not a declaration that such places are nuisance or that they are to be suppressed as such, but it is a part of the general plan by which the city's territory it allotted to different uses in order to prevent, or at least to reduce, the congestion, disorder and danger which often inhere in unregulated municipal development." Quoting Civello in Euclid at 393: "if the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council."
295. Euclid v. Ambler, 272 U.S. 365 at 394, 395.
296. Euclid v. Ambler, 272 U.S. 365 at 395.
297. Euclid v. Ambler, 272 U.S. 365 at 395-97.
298. Thomas Reed Powell, "The Supreme Court and State Police Power, 1922-1930 - IV," Virginia Law Review 18 (1931): 23, noted the "caveat": "This question of specific application is clearly left open in every case."
299. On incentive effects, see Pierson, "When Effect Becomes Cause," 599-601.
300. Village of University Heights v. Cleveland Jewish Orphans' Home, 20 F. 2d 743 (1927), Women's Kansas City St. Andrew Society v. Kansas City, 58 F. 2d 593 (1932), Gamage v. Masonic Cemetery, 31 F. 2d 308 (1929), New York v. Kelly, 255 N.Y. 396 (1931).
301. Can a zoning requirement of at least $7,000 cost for a house be made? The answer is that the regulation of the cost of the house is not substantially related to community health, safety, and general welfare. . . . Can schools be excluded from the best residence districts? The answer is "No." Can one-story buildings be prohibited? The answer is "No." A one-story building is as safe and healthful as a two-story building. And so it goes. (Edward M. Bassett, "Strong-Arm Zoning," Planning and Civic Comment 1 (1935): 19-20) Bassett remained convinced that planners had to keep up the guise of describing their motives in traditional police power terms. In this sense, his original understanding of the police power problem continued to influence his approach to state-building.
302. Post-Euclid zoning decisions forced judges to squeeze new wine into old bottles. It would have been better to admit, according to some observers, that a new idiom was necessary, but "most courts will not feel free to take such a straightforward approach and the result will be reached by fitting legislation, designed to meet newer needs, into older and better categories." Leon E. Hickman, "Aesthetics and the Police Power," Pennsylvania Bar Association Quarterly 10 (1931): 27.
303. The significant problems of post-Euclid police powers jurisprudence arose in those cases where cities used zoning to restrict the use of property that seemed just beyond the well-established ground of nuisance doctrine, such as the creation of exclusive residential areas or the proscription of non-nuisance uses, or in those so-called borderline cases where the extension of a use district boundary (for example, where the boundary of a residential district was extended across a railroad track into area used primarily for industrial or commercial purposes) resulted in a significant decline in property values. In such cases, judges conceded that comprehensiveness allowed public officials to discriminate against private rights. The real question was determining how far that discrimination could be carried. This necessarily involved scrutiny of the particular facts of each case, and zoning cases could be very idiosyncratic.
304. Beery v. Houghton, 273 U.S. 671, affirming 164 Minn. 146 (1925); Alfred Bettman, "Recent Zoning Decision of the United States Supreme Court," University of Cincinnati Law Review 2 (1928): 315.
305. Zahn v. Board of Public Works, 274 U.S. 325 at 328. Bettman, "Recent Zoning Decisions of the United States Supreme Court," 316. Although there was some initial confusion over the relationship between nuisance doctrine and zoning, it gradually became clear that zoning had emerged from its initial association with nuisance. As one legal writer put it: Zoning had as its basis that principle of the law of nuisances which is that a man shall not use his property so as to injure another. But though these two restrictions on property have the same fundamental principle in common yet they are not identical and should not restrict each other. Zoning grew from the failure of the law of nuisances to adequately handle the rapid growth and scientific development of cities. In the process, it had developed its own justifications: Zoning ordinances are worked out by men who know how to compile and classify data concerning living and working conditions in cities, and to apply scientific principles of city planning with such knowledge. They are based on the broadest principles of public welfare controlled by police power and, to some degree at least, the protection of property values. (JSF, Jr., "Nuisance Regulation as Distinct from Zoning Ordinances," Virginia Law Review 17 [1930]: 202, 203-4)
306. Zahn v. Board of Public Works, 274 U.S. 325 at 328. Bettman, "Recent Zoning Decisions of the United States Supreme Court," 316. Although there was some initial confusion over the relationship between nuisance doctrine and zoning, it gradually became clear that zoning had emerged from its initial association with nuisance. As one legal writer put it: Zoning had as its basis that principle of the law of nuisances which is that a man shall not use his property so as to injure another. But though these two restrictions on property have the same fundamental principle in common yet they are not identical and should not restrict each other. Zoning grew from the failure of the law of nuisances to adequately handle the rapid growth and scientific development of cities. In the process, it had developed its own justifications: Zoning ordinances are worked out by men who know how to compile and classify data concerning living and working conditions in cities, and to apply scientific principles of city planning with such knowledge. They are based on the broadest principles of public welfare controlled by police power and, to some degree at least, the protection of property values. (JSF, Jr., "Nuisance Regulation as Distinct from Zoning Ordinances," Virginia Law Review 17 [1930]: 202, 203-4)
307. In other words, the provision required homeowners to have front yards of a certain size. Gorieb v. Fox, 274 U.S. 603 at 608.
308. Powell, "The Supreme Court and State Police, 1922-1930 - IV," 33 (emphasis and added).
309. "Report of Master," in Samuel M. Nectow, Plaintiff in Error, vs. City of Cambridge and Inspector of Buildings of the City of Cambridge, Jeremiah F. Downey, In error to the Supreme Judicial Court of the State of Massachusetts, 31, 33.
310. Nectow v. City of Cambridge, 277 U.S. 183 at 187-88. Even the state court had admitted that the case was "close to the line" (Nectow v. Cambridge, 260 Mass. 441 at 448.)
311. Alfred Bettman, "Recent Zoning Decisions of the Supreme Court of the United States," University of Cincinnati Law Review 3 (1929): 319, 321-22.
312. One observer concluded that there were really only two general rules for judges to follow in zoning cases. First, "such ordinances should not embody restrictions which bear no relation to the real purpose of zoning." The real purpose of zoning was "the crystallization of present conditions and the constructive control of future development," an activity which did not extend to "prohibiting within the limits of a municipality the uses which the community needs but which it would prefer to have inflicted upon some other community," such as orphanages or old ladies' homes. Second, "their application should not result in rendering a land owner unable to make any practical use of his property." "Retroactive Zoning Ordinances," Yale Law Journal 39 (1930): 737, 741-42.
313. Both this [Euclid] and the two succeeding cases [Zahn and Gorieb] announce the rule that the conclusion of the legislative authorities in respect to the necessity, character, and degree of regulation as expressed in the legislative act should not be disturbed by the courts, "unless clearly arbitrary and unreasonable." (Village of University Heights v. Cleveland Jewish Orphans' Home, 20 F. 2d 743 [1927] at 745)
314. Francis W. Brown, "Zoning Ordinances - Constitutionality," Notre Dame Lawyer 8 (1932): 90.
315. Joseph E. Goodbar, "Zoning - Restrictions in Particular Cases Limited to a Reasonable Exercise of Power," Boston University Law Review 8 (1928): 330-33.
316. Powell, "The Supreme Court and State Police Power, 1922-1930 - IV," 32.
317. Thomas A. Bryne, "The Constitutionality of a General Zoning Ordinance," Marquette Law Review 11 (1927): 203.
318. "There is nothing upon which the new realist is so insistent as on giving over all preconceptions and beginning with an objectively scientific gathering of facts." Roscoe Pound, "The Call for a Realist Jurisprudence," Harvard Law Review 44 (1931): 700. See also Henry Wolf Biklé, "Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action," Harvard Law Review 38 (1924): 6-27.
319. "There is nothing upon which the new realist is so insistent as on giving over all preconceptions and beginning with an objectively scientific gathering of facts." Roscoe Pound, "The Call for a Realist Jurisprudence," Harvard Law Review 44 (1931): 700. See also Henry Wolf Biklé, "Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action," Harvard Law Review 38 (1924): 6-27.
320. Women's Kansas City St. Andrew Society v. Kansas City, 58 F. 2d 593 (1932) at 604.
321. Masonic Cemetery Association v. Carriage, 38 F. 2d 950 (1930) at 956.
322. For example, in 1932, a federal court upheld the use of a zoning ordinance in Alexandria, Virginia, which prevented an owner from building a filling station on his property. The property was situated near a highway and down the road from a railroad station. Most of the surrounding land was unimproved, although there were a growing number of homes in the vicinity. In spite of the largely unimproved nature of the area, the city designated it as a
323. If the restriction complained of there were an independent regulation or proscription, it could not in our opinion stand. It would be depriving plaintiff of the use of his property without due process of law. Does the fact that the porscription is part of a zoning system which is claimed to be for the general benefit of the public change the situation and permit the restriction of the use of plaintiff's property? (Women Kansas City St. Andrew Society v. Kansas City, 58 F. 2d 593 at 604)
324. F. D. G. Ribble, "The Due Process Clause as a Limitation on Municipal Discretion in Zoning Legislation," Virginia Law Review 16 (1930): 691-92.
325. The comprehensive type of ordinance u more reasonable than the piecemeal law by reason of its very comprehensiveness. Following this logic further we should conclude that the thoroughness of the entire plan as applied to the whole municipality should be the test of the reasonableness of the ordinance Certainly all the facts which entered into the adoption of the plan by the Planning Commission should be taken into consideration in determining its reasonableness. A scheme which considers the future of the city along social and economic lines; which considers the channels which the future growth of the city will take, which has been honestly made so as to facilitate this future expansion, is a plan best calculated to be reasonable in operation. For these reasons the survey on which the plan is based, and the testimony of the experts who made the survey as to just how the final ordinance will further the health, morals, and general welfare of the city, are evidence of the reasonableness of the plan. (Bryne, "The Constitutionality of a General Zoning Ordinance," 205)
326. Compare an Arizona Supreme Court decision: It is of course true that in determining whether the general welfare requires interference with property rights by a zoning ordinance, municipalities should and presumably generally do, consider, among other things, the loss to property owners by a restriction of the use of their property. This, however, is only one of the considerations on which the final decision is to be based Doubtless, if the value of the property rights is so great, as compared with the benefit done, that it clearly appears the ordinance is arbitrary and unreasonable, the courts will interfere, but if there can be any reasonable argument on the question the legislative will must prevail. (City of Tucson v. Arizona Mortuary 34 Ariz. 495 [1928] at 512-13)
327. In the Matter of Charles O. Eaton u Edward C. Sweeny, as Commissioner of Pubüc Safety of the City of Saratoga Springs, 257 N.Y. 176 (1931) at 183.
328. Take the case of People of the State of New York ex rel. St. Albans-Springfield Corporation v. Henry L. Connell, 257 N.Y. 73 (1931). Here, the New York Supreme Court allowed a property owner to use his land for a filling station even though the New York City zoning ordinance had designated it as part of a business district (as opposed to an unrestricted district, where filling stations were permitted). The property was located in an undeveloped area of Queens, distant from transit lines, at the intersection of two busy highways. Since there were very few residences in the area (and thus few customers), the property was not suited for business purposes - a fact confirmed by officials from the Williamsburg Savings Bank, the Dime Savings Bank, and the National Title Company who testified that they would not lend money for the development of business properties in the area. The property owner applied to the Board of Standards and Appeals for a variance to build a gas station to serve the traffic on the abutting highways and thus make some productive use of his investment. The Board denied the request. The supreme court overturned the ruling of the Board on a temporary basis by arguing that, because the area was not developing as a business or residential area at the time, a variance in this one land use was too great an imposition on the property owner: To what extent and in what circumstances long-time planning for zoning purposes is a valid exercise of legislative power is a question with aspects too many to be answered in one decision. We are not required to say that a merely temporary restraint of beneficial enjoyment is unlawful where the interference is necessary to promote the ultimate good either of the municipality as a whole or of the immediate neighborhood. Such problems will have to be resolved when they arise. If we assume that the restraint may be permitted, the interference must not be unreasonable, but on the contrary must be kept within the limits of necessity. Where as here the ultimate good can be attained and a productive use allowed, a use that will be temporary and provisional and readily terminable when new conditions supervene, the landowner is wronged if the allowance if refused. In other words, the benefit to the neighborhood and the city as a whole could be achieved (encouraging the proper development of this area for business purposes as part of an overall city plan) while at the same time allowing the use of this property as a filling station on a temporary basis. The balance between public benefits and private losses could be established more appropriately - "within the limits of necessity" - while assuring that the public would be favored in the future: "when the circumstances so change by the development of the city that the property is reasonably susceptible of being applied to business uses, then, upon the application of authorities or any one interested, the gasoline station must be removed" (at 83).
329. George S. Forte, v. G. W. Hubbard, 348 Ill 166 (1932) at 171-74, 177, 180-81. The court discussed a very similar Pennsylvania case, Taylor v. Haverford Township, 299 Pa. 402 (1930), which overturned a zoning provision which designated property along a commercial strip as a residential area: "In that case it was also held that the inclusion of the lot there involved in a residential district was bot essential to the general plan but it could with perfect feasibility be excluded therefrom."
330. Where a thoughtful plan did exist, courts (often grudgingly) granted local zoning officials considerable leeway to determine the boundaries of use districts. For example, in American Wood Products v. Minneapolis (1929), a federal appeals court upheld the use of a zoning ordinance that designated vacant land on one side of a railroad track adjacent to an industrial area as a "multiple dwelling" district, thus preventing the businesses that owned the land from using it to build factories. The city had selected the land for multiple dwellings in part to accommodate the future expansion of the University of Minnesota campus, even though the area was owned by the American Wood Products Company and other manufacturing firms and has been held by them for many years as space for their future expansion. Here was a case, in other words, where zoning was being used as a tool for planning and property owners with vested rights in land long used for one purpose stood in the way of those plans. The trial court admitted, and the federal court affirmed, that the value of the property for industrial purposes was between five- and eight-times its value for residential purposes and that the restriction "was an unjust and unfair way for the city to limit its use." But as with so many cases, this one come down to a matter of where to draw the line: Of course the line of demarcation betwwen property to be used for industrial purposes and residence purposes is necessarily in any sace somewhat arbitrary, but can it be said that merely because the property on one side of the railroad may be as good for industrial purposes as that on the other side that the failure to draw the line so as to include all the property appropriate for industrial purposes within one area is such an arbitrary action as to render the same violative of the Constitution? In the instance, even though the loss of value to the owners was quite large, the city had a well-considered reason for creating the multiple-dwelling district - planning for the expansion of the university. Since it was a "fairly debatable proposition" whether the city has struck this balance reasonably, the court felt obliged to uphold the use of the ordinance. American Wood Products Co. v. City of Minneapolis, 35 F. 2d 657 (1929) at 658, 659, 660, 661-62, 662-63. Indeed, a compelling plan could swing the balance in favor of zoning officials even where aesthetic considerations came into play. In Cromwell-Franklin Oil v. Oklahoma City, for instance, a federal court upheld an Oklahoma City ordinance that prevented oil drilling on 104 acres of former farm land. The tract in question had recently been annexed into the city and was surrounded on all sides by residential areas. The owner had requested that the city zone his land to allow for oil drilling, for there were other residential sections of the city where oil derricks were functioning within one-hundred feet of dwellings (this was Oklahoma City, after all). The land owner argued that the city treated him unequally by not allowing him to drill for oil on his property, even though wells on his property would be over five-hundred feet away from residences on surrounding properties. Furthermore, by denying him the right to drill for oil, the city cost the property owner a very substantial sum of money, amounting vey nearly to a confiscation of the value of his property. The court did not find this argument persuasive, in spite of the significant loss to the land owner. Far more compelling were the reasons behind the city's recent annexation of the land, which was located very near the Capitol. The state owned an adjacent tract of land on which it intended to build additional government buildings. A wide, park-lined boulevard leading to the Capitol traversed one side of the annexed property. And the surrounding areas were "the most beautiful, expensive and highly developed residence sections of the city." The city clearly had a plan to keep this area as a sort of grand entrance-way to the Capitol. The issue was not so much whether oil wells were dirty, dangerous, or threatening to the public health, for wells in other parts of the city operated close to homes. They were simply out of place within a well-intended plan: they were, in short, pigs in a parlor. Thus, the choice to limit the use of the property made sense as part of an overall land use plan. Disrupting that plan meant a significant loss to the public that outweighed the loss to the owner. The court asked, Can this court say that the drilling of oil wells in a neighborhood of that character would not be a nuisance and detriment to the community, and retard the progress of that section of the city as a choice residence section, and can the court say that the exercise of the police power by the city as exercised in the administration and enforcement of these ordinances is arbitrary, discriminatory, or confiscatory.
331. Women's Kansas City St. Andrew Society v. Kansas City, 58 F. 2d 593 (1932) at 605, 606 (emphasis added). Had this case been decided by traditional categorical reasoning, the court would probably have said that the ordinance denied plaintiff equal protection of law and that this use of the ordinance was not substantially related to public health or safety. The rationale here is different.
332. Bickel, The Least Dangerous Branch, 25.
333. Take the case of Ward's Appeal, 289 Pa. 458 (1927). The plaintiff was a Pittsburgh resident who had recently purchased a dilapidated fifty-year-old frame building that had been used for business purposes some years earlier. The property was located in a residential area which the city had designated as a residential zone. When municipal authorities declared the property unsafe and required the owner to make it safe or raze it, he submitted plans that amounted to a razing of the old building and the construction of a new building which he intended to use as a store. The city then refused to grant him a permit on the grounds that the property was in a residential area. The court upheld this use of the ordinance, but it clearly has nothing whatsoever to do with health and safety. Indeed, the city gave the man permission to continue using the property for business purposes if he simply repaired the existing structure. The mere fact of constructing a new building required the owner to comply with the terms of the zoning ordinance. This decision makes sense only as a balancing exercise, for these was simply no way to argue that conducting a business in a repaired building was somehow better for public health, safety, and morals that conducting the same business on the same property in a newly constructed building. The court did not even explore this side of the question. Instead, after citing Euclid at length, the court concluded that the "intrinsic vakue" of the plaintiff's property had not been harmed by requiring compliance with the zoning code. In an illuminating concurring opinion, Justice Kephart acknowledged taht the use of this or any property as a drug store or a grocery store would not adversly affect public health or safety. He supported this application of the ordinance because it helped to keep businesses out the neighborhood and thus application of the ordinance life. When he weighed the loss to the property owner against that larger public value (so prominent in Sutherland's decision in Euclid), the ordinance came out ahead: "In the enforcement of all zoning ordinances, of course, some must, to a slight degree, ge hurt; the question is one of degree, and, in balancing the equities, the great weight lies with those first in the family in the locality who have made it a place for homes" (at 472).
334. Charles P. Light, Jr., "Aesthetics in Zoning," Minnesota Law Review 14 (1930): 123 (emphasis added). Or as another observer put it, the time seems ripe for the courts to abandon the mask of exclusive concern for the health and safety of the community and frankly to approve reasonable regulation and restriction of property in the interests of beauty and municipal welfare. ("Zoning: An Extension of the Police Power," Iowa Law Review 13 [1927]: 81) The debate over the use of the police power for aesthetic purposes was also fought with regard to billboard regulation, and here the same charade took place. Although throughout the 1920s the courts continued to strike down billboard ordinances directed primarily toward municipal beautification, as one New York judge commented in 1927, "an aesthetic purpose needs but little assistance from a practical one in order to withstand an attack on constitutional grounds" (People v. Sterling, 220 N.Y. Supp. 315 at 318). Where judges thought an aesthetic purpose was part of a well-reasoned regulatory classification, they could usually find a way to let it slip through. See also Henry W. Proffitt, "Public Esthetics and the Billboard," Cornell Law Quarterly 16 (1931): 151-79, and John J. Grady, "Police Power - Regulation of Property in the Interest of the Aesthetic," Boston University Law Review 6 (1926): 305-9. Giving greater weight to aesthetic considerations would be a central battle in zoning jurisprudence through the 1930s. The problem with aesthetic considerations was that they often cloaked arbitrariness. In Dowsey v. Village of Kensington, 257 N.Y. 221 (1931), for example, the New York Supreme Court struck down a zoning provision which restricted the use of plaintiff's property for residential purposes. The owner wanted to use the property, which was located on the edge of the village near a busy highway (Middle Neck Road), for a business, but the zoning ordinance declared nearly the entire village as a residential area. The court criticized the ordinance as completely unconcerned with creating a thoughtful distribution of land use for the village: The village of Kensington is small in area, and the Board of Trustees have not attempted in the zoning ordinance to segregate in appropriate places within the village all the activities of communal life. They have relegated business and industry to a very small section which the evidence shows is not adapted to business, and have excluded from the main portion of the village even residences excepting one-family detached houses. We are told that apartment buildings or stores on the Middle Neck road frontage, or, indeed, in any other part of the village, might cause traffic congestion, fire hazards, and other dangers to the health and safety of the community. In truth, the inference from the evidence is clear that these claims are without substance and that the zoning ordinance has been framed for the purpose of excluding such buildings from the village in order to preserve it as a secluded quiet community of one-family detached homes, (at 229-30) In other words, there was no longer plan based on a thorough understanding of existing land use conditions in and around the village. Instead, the ordinance was an embodiment of arbitrary preferences unrelated to larger public concerns: The inference is reasonable that the property fronting on Middle Neck road has been included in the residence district primarily for the purpose of providing a beautiful and dignified village frontage on a public thoroughfare. (at 230) The problem here, in my view, is less the aesthetic focus of the ordinance than it is the complete absence of any thoughtful effort to weave aesthetic concerns into some larger plan of land uses. Had been a reasonable land use plan, the Board of Trustees might have gotten away with their effort to beautify the entrance way to the village.
335. Charles P. Light, Jr., "Aesthetics in Zoning," Minnesota Law Review 14 (1930): 123 (emphasis added). Or as another observer put it, the time seems ripe for the courts to abandon the mask of exclusive concern for the health and safety of the community and frankly to approve reasonable regulation and restriction of property in the interests of beauty and municipal welfare. ("Zoning: An Extension of the Police Power," Iowa Law Review 13 [1927]: 81) The debate over the use of the police power for aesthetic purposes was also fought with regard to billboard regulation, and here the same charade took place. Although throughout the 1920s the courts continued to strike down billboard ordinances directed primarily toward municipal beautification, as one New York judge commented in 1927, "an aesthetic purpose needs but little assistance from a practical one in order to withstand an attack on constitutional grounds" (People v. Sterling, 220 N.Y. Supp. 315 at 318). Where judges thought an aesthetic purpose was part of a well-reasoned regulatory classification, they could usually find a way to let it slip through. See also Henry W. Proffitt, "Public Esthetics and the Billboard," Cornell Law Quarterly 16 (1931): 151-79, and John J. Grady, "Police Power - Regulation of Property in the Interest of the Aesthetic," Boston University Law Review 6 (1926): 305-9. Giving greater weight to aesthetic considerations would be a central battle in zoning jurisprudence through the 1930s. The problem with aesthetic considerations was that they often cloaked arbitrariness. In Dowsey v. Village of Kensington, 257 N.Y. 221 (1931), for example, the New York Supreme Court struck down a zoning provision which restricted the use of plaintiff's property for residential purposes. The owner wanted to use the property, which was located on the edge of the village near a busy highway (Middle Neck Road), for a business, but the zoning ordinance declared nearly the entire village as a residential area. The court criticized the ordinance as completely unconcerned with creating a thoughtful distribution of land use for the village: The village of Kensington is small in area, and the Board of Trustees have not attempted in the zoning ordinance to segregate in appropriate places within the village all the activities of communal life. They have relegated business and industry to a very small section which the evidence shows is not adapted to business, and have excluded from the main portion of the village even residences excepting one-family detached houses. We are told that apartment buildings or stores on the Middle Neck road frontage, or, indeed, in any other part of the village, might cause traffic congestion, fire hazards, and other dangers to the health and safety of the community. In truth, the inference from the evidence is clear that these claims are without substance and that the zoning ordinance has been framed for the purpose of excluding such buildings from the village in order to preserve it as a secluded quiet community of one-family detached homes, (at 229-30) In other words, there was no longer plan based on a thorough understanding of existing land use conditions in and around the village. Instead, the ordinance was an embodiment of arbitrary preferences unrelated to larger public concerns: The inference is reasonable that the property fronting on Middle Neck road has been included in the residence district primarily for the purpose of providing a beautiful and dignified village frontage on a public thoroughfare. (at 230) The problem here, in my view, is less the aesthetic focus of the ordinance than it is the complete absence of any thoughtful effort to weave aesthetic concerns into some larger plan of land uses. Had been a reasonable land use plan, the Board of Trustees might have gotten away with their effort to beautify the entrance way to the village.
336. Charles P. Light, Jr., "Aesthetics in Zoning," Minnesota Law Review 14 (1930): 123 (emphasis added). Or as another observer put it, the time seems ripe for the courts to abandon the mask of exclusive concern for the health and safety of the community and frankly to approve reasonable regulation and restriction of property in the interests of beauty and municipal welfare. ("Zoning: An Extension of the Police Power," Iowa Law Review 13 [1927]: 81) The debate over the use of the police power for aesthetic purposes was also fought with regard to billboard regulation, and here the same charade took place. Although throughout the 1920s the courts continued to strike down billboard ordinances directed primarily toward municipal beautification, as one New York judge commented in 1927, "an aesthetic purpose needs but little assistance from a practical one in order to withstand an attack on constitutional grounds" (People v. Sterling, 220 N.Y. Supp. 315 at 318). Where judges thought an aesthetic purpose was part of a well-reasoned regulatory classification, they could usually find a way to let it slip through. See also Henry W. Proffitt, "Public Esthetics and the Billboard," Cornell Law Quarterly 16 (1931): 151-79, and John J. Grady, "Police Power - Regulation of Property in the Interest of the Aesthetic," Boston University Law Review 6 (1926): 305-9. Giving greater weight to aesthetic considerations would be a central battle in zoning jurisprudence through the 1930s. The problem with aesthetic considerations was that they often cloaked arbitrariness. In Dowsey v. Village of Kensington, 257 N.Y. 221 (1931), for example, the New York Supreme Court struck down a zoning provision which restricted the use of plaintiff's property for residential purposes. The owner wanted to use the property, which was located on the edge of the village near a busy highway (Middle Neck Road), for a business, but the zoning ordinance declared nearly the entire village as a residential area. The court criticized the ordinance as completely unconcerned with creating a thoughtful distribution of land use for the village: The village of Kensington is small in area, and the Board of Trustees have not attempted in the zoning ordinance to segregate in appropriate places within the village all the activities of communal life. They have relegated business and industry to a very small section which the evidence shows is not adapted to business, and have excluded from the main portion of the village even residences excepting one-family detached houses. We are told that apartment buildings or stores on the Middle Neck road frontage, or, indeed, in any other part of the village, might cause traffic congestion, fire hazards, and other dangers to the health and safety of the community. In truth, the inference from the evidence is clear that these claims are without substance and that the zoning ordinance has been framed for the purpose of excluding such buildings from the village in order to preserve it as a secluded quiet community of one-family detached homes, (at 229-30) In other words, there was no longer plan based on a thorough understanding of existing land use conditions in and around the village. Instead, the ordinance was an embodiment of arbitrary preferences unrelated to larger public concerns: The inference is reasonable that the property fronting on Middle Neck road has been included in the residence district primarily for the purpose of providing a beautiful and dignified village frontage on a public thoroughfare. (at 230) The problem here, in my view, is less the aesthetic focus of the ordinance than it is the complete absence of any thoughtful effort to weave aesthetic concerns into some larger plan of land uses. Had been a reasonable land use plan, the Board of Trustees might have gotten away with their effort to beautify the entrance way to the village.
337. Charles P. Light, Jr., "Aesthetics in Zoning," Minnesota Law Review 14 (1930): 123 (emphasis added). Or as another observer put it, the time seems ripe for the courts to abandon the mask of exclusive concern for the health and safety of the community and frankly to approve reasonable regulation and restriction of property in the interests of beauty and municipal welfare. ("Zoning: An Extension of the Police Power," Iowa Law Review 13 [1927]: 81) The debate over the use of the police power for aesthetic purposes was also fought with regard to billboard regulation, and here the same charade took place. Although throughout the 1920s the courts continued to strike down billboard ordinances directed primarily toward municipal beautification, as one New York judge commented in 1927, "an aesthetic purpose needs but little assistance from a practical one in order to withstand an attack on constitutional grounds" (People v. Sterling, 220 N.Y. Supp. 315 at 318). Where judges thought an aesthetic purpose was part of a well-reasoned regulatory classification, they could usually find a way to let it slip through. See also Henry W. Proffitt, "Public Esthetics and the Billboard," Cornell Law Quarterly 16 (1931): 151-79, and John J. Grady, "Police Power - Regulation of Property in the Interest of the Aesthetic," Boston University Law Review 6 (1926): 305-9. Giving greater weight to aesthetic considerations would be a central battle in zoning jurisprudence through the 1930s. The problem with aesthetic considerations was that they often cloaked arbitrariness. In Dowsey v. Village of Kensington, 257 N.Y. 221 (1931), for example, the New York Supreme Court struck down a zoning provision which restricted the use of plaintiff's property for residential purposes. The owner wanted to use the property, which was located on the edge of the village near a busy highway (Middle Neck Road), for a business, but the zoning ordinance declared nearly the entire village as a residential area. The court criticized the ordinance as completely unconcerned with creating a thoughtful distribution of land use for the village: The village of Kensington is small in area, and the Board of Trustees have not attempted in the zoning ordinance to segregate in appropriate places within the village all the activities of communal life. They have relegated business and industry to a very small section which the evidence shows is not adapted to business, and have excluded from the main portion of the village even residences excepting one-family detached houses. We are told that apartment buildings or stores on the Middle Neck road frontage, or, indeed, in any other part of the village, might cause traffic congestion, fire hazards, and other dangers to the health and safety of the community. In truth, the inference from the evidence is clear that these claims are without substance and that the zoning ordinance has been framed for the purpose of excluding such buildings from the village in order to preserve it as a secluded quiet community of one-family detached homes, (at 229-30) In other words, there was no longer plan based on a thorough understanding of existing land use conditions in and around the village. Instead, the ordinance was an embodiment of arbitrary preferences unrelated to larger public concerns: The inference is reasonable that the property fronting on Middle Neck road has been included in the residence district primarily for the purpose of providing a beautiful and dignified village frontage on a public thoroughfare. (at 230) The problem here, in my view, is less the aesthetic focus of the ordinance than it is the complete absence of any thoughtful effort to weave aesthetic concerns into some larger plan of land uses. Had been a reasonable land use plan, the Board of Trustees might have gotten away with their effort to beautify the entrance way to the village.
338. Hall, "Policy Paradigms, Social Learning, and the State," 292.
339. In this sense, there is an important parallel between local and national state-building: At the dawn of the twentieth century . . . with the legitimacy of the early American state under attack from all sides, government officials finally made the pivotal turn down the bureaucratic road. After 1900, the doors of power opened to those who saw a national administrative apparatus as the centerpiece of a new governmental order. The central question in institutional development was correspondingly changed. It was no longer a question of whether or not America was going to build a state that could support administrative power but of who was going to control administrative power in the new state that was being built (Skowronek, Building a New American State, 165)
340. Counsel for Ambler Realty couched the company's objection to zoning in the familiar rhetoric of property rights: A belief that municipal authorities can assert some sort of communal control over privately owned land is at variance with the fundamental nature of private ownership and in derogation of that protection of private ownership for which the applicable provisions of bills of rights and constitutions were made among us. Despite the alleged intentions of municipal officials, zoning was "after all, merely a desire of some people to tell other people how to use their property" (Newton D. Baker and Robert M. Morgan, "Brief and Argumant for Appellee," 48). But that was exactly the point: zoning was not merely some poeple telling other people what to do with their property. When it was that, judges could still strike it down as not an "essential elements" of a comprehensive plan. To be sure, zoning was not the traditional exercise of the police power that Bassett and Whitten portrayed it to be. By "lifting the veil of subterfuge," as one of Bassett's opponents urges, it was plain to see that zoning was not a traditional use ot the police power or even a simple extension of nuisance rationale, as Sutherland had suggested (Argument of Edmund Campbell, Esq., In Behalf of the Plaintiff, on the raltion of Annie Steerman, Plaintiff, vs. District of Columbia et al, Defendants, April 29, 1925, 128, Bassett Papers, Box 11). Planning advocates were only motivated bu public health and safety because that was an essential part of the strategy developed in New York City during the dabates over the 1916 zoning ordinance. The connections between the real objectives of planners (such as creating residentail areas free from businesses and apartment buildings) and the accepted purposes of the police power (protecting public health and safety) were tactical rather than substantive. The veil of subterfuge that Bassett and Whitten had created was designed to make these connections persuasive in the eyes of the courts, and thus legitimize the new role they envisioned for planners - balancing public goals against private rights.
341. Bassett, Zoning, and Eugene McQuillan, The Law of Municipal Corporations, rev. James J. Kearney, 2nd ed. (Chicago: Callahan and Company, 1943), 3:403-537, illustrate the vital role of courts in establishing the limits of bureaucratic authority through zoning case law.
342. Bassett, Zoning, and Eugene McQuillan, The Law of Municipal Corporations, rev. James J. Kearney, 2nd ed. (Chicago: Callahan and Company, 1943), 3:403-537, illustrate the vital role of courts in establishing the limits of bureaucratic authority through zoning case law.
343. Pierson, "When Effect Becomes Cause," 617-18.
344. This does not mean that "where you stand depends on where you sit," but is does suggest that what yopu learn depends on the tasks you confront. Hall, "Policy Paradigms, Social Learning, and the State," 275.
345. See Réveil, "Regulating the Landscape," 26-31.
346. Pierson, "When Effect Becomes Cause," 618.
347. This study suggests that it may be worth following up on the comparison between policy and technology. If one views political learning as a process that produces technologies of public action, then those technologies may follow the same patterns of diffusion seen in the history of science and technology. In the case of zoning for example, Sutherland's decision in Euclid can be said to have lowered the transaction costs for using comprehensiveness, thus offering increasing returns to those municipalities that employed it. Because of those increasing returns, planning advocates got "locked in" to the health and safety strategy and "locked out" of exploring other justifications for planning which would have offered better long-run payoffs for the planning profession (this, it seems to me, is more or less what MEl Scott's critism of Bassett amounts to).
348. Robert A. Dahl, Who Governs? Democracy and Power in an American City (New Haven: Yale University Press, 1961), 246-48.
349. Ward 's Appeal, 289 Pa. 458 at 471. "The modern idea is that all human activity is within the regulative sphere of the legislature." Harry R. Trusler, "Hasty and Local Legislation," American Law Review 60 (1926): 363.
350. Chester C. Maxey, An Outline of Municipal Government (New York: Doubleday, 1924), 9, as quoted in Baker, "Zoning Legislation," 165.
351. Chester C. Maxey, An Outline of Municipal Government (New York: Doubleday, 1924), 9, as quoted in Baker, "Zoning Legislation," 165.
352. Barry Cushman, "A Stream of Legal Consciousness: The Current of Commerce Doctrine from Swift to Jones & Laughlin," Fordham Law Review 61 (1992): 107.
353. Ray A. Brown, "Police Power - Legislation for Health and Personal Safety," Harvard Law Review 42 (1929): 896, 897, 879. The previously beaten paths of judicial opinion on the question of reasonableness contain few accurate guideposts to new fields sought to be explored byjudicial review. Therefore, old cases and old laws dealing with police regulations are of little help except as they serve to guide the court, and insofar as they expound general principles applicable to special circumstances. . Precedent therefore, is not a safe guide. As economic and social conditions change, judicial determinations founded on those conditions • must change. (Samuel M. Soref, The Doctrine of Reasonableness in the Police Power," Marquette Law Review 15 [1930]: 17)
354. Ray A. Brown, "Police Power - Legislation for Health and Personal Safety," Harvard Law Review 42 (1929): 896, 897, 879. The previously beaten paths of judicial opinion on the question of reasonableness contain few accurate guideposts to new fields sought to be explored byjudicial review. Therefore, old cases and old laws dealing with police regulations are of little help except as they serve to guide the court, and insofar as they expound general principles applicable to special circumstances. . Precedent therefore, is not a safe guide. As economic and social conditions change, judicial determinations founded on those conditions • must change. (Samuel M. Soref, The Doctrine of Reasonableness in the Police Power," Marquette Law Review 15 [1930]: 17)
355. Ray A. Brown, "Due Process of Law, Police Power, and the Supreme Court," Harvard Law Review 40 (1927): 944, 945, 966-67.
356. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 92-93. Holmes expressed a similar sentiment: I do not think that the United States would come to an end if we lost our power to declare an act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. For one in my place sees how often a local policy prevails with those who are not trained to national views and how often action is taken that embodies what the commerce clause "was meant to end" (Speech of Mr. Justice Holmes at a Dinner of the Harvard Law Association of New York, on February 15, 1913, 62d Cong., 3d sess., 1913, S. Doc. 1106, 5)
357. Bickel, The Least Dangerous Branch, 16.