Constitutional History, 1901–1921
CONSTITUTIONAL HISTORY, 1901–1921
American public life profoundly changed during the early twentieth century. The policy agenda during the Progressive era stands in dramatic contrast, both quantitatively and qualitatively, to its nineteenth-century predecessors. A substantial body of state and national legislation sought to subject large corporations and public utilities to far greater regulation than had been the case before. A comparable surge of enactments dealt with social issues ranging from the hours and working conditions of women and children to housing, the quality of food and drugs, the conservation of land, and the control of drinking and prostitution.
More than at any time since the civil war and reconstruction, Americans paid substantial attention to the structure of their government. The pace of lawmaking that dealt with politics and government quickened, stimulated by the dual motives (not always complementary) of expanding popular democracy and of bringing greater honesty and efficiency to the workings of the American state. A burst of innovation led to the creation of direct primary elections, the initiative and referendum, and new registration and voting laws, as well as to the direct election of senators and to women's suffrage. A flood of discussion and a lesser flow of administrative, judicial, and legislative action sought to increase the effectiveness of the executive branch and the bureaucracy, to improve the workings of Congress and the functioning of the courts, and to modernize the relationship between federal and state authorities and the governance of the nation's cities.
American involvement in world war i was the capstone to the Progressive era. Federal involvement in the American economy and society reached new heights; and in both technique and spirit wartime governance drew heavily on the immediate prewar experience.
theodore roosevelt, william howard taft, and wood-row wilson were far more activist than their predecessors both in leadership styles and in domestic and foreign policy. But perhaps the most dramatic result of the quickened pace of government and the new policy agenda was the adoption between 1913 and 1920 of four constitutional amendments, providing for a federal income tax, the direct election of senators, prohibition, and women's suffrage. Only at the beginning of the Republic and during the Reconstruction era had constitutional revision occurred on so large a scale.
Insofar as there was a common denominator to the public policy of the Progressive era, it lay in the belief that the time had come to deal with some of the more chaotic and unjust aspects of a mature industrial society; to bring public policy (and the nation's political and governing institutions) into closer accord with new social and economic realities. This impulse cannot be simply explained away by the once fashionable label of "reform," or the now fashionable label of "social control." A quest for social justice coexisted in complex ways with a search for order. Some Progressives wanted society (and the polity) to be more efficient: more honest and economical, less wasteful and corrupt. Others sought policies that would make society safer: more secure from the threats of big business and corrupt political machines, or from the vagaries of competition and the business cycle, or from radicals, immigrants, or blacks. Still others wanted society to be fairer: more humane and less inequitable.
This was not solely an American development. h. g. wells observed in 1906 that "the essential question for america, as for europe, is the rescue of her land, her public service, and the whole of her great economic process from the anarchic and irresponsible control of private owners … and the organization of her social life upon the broad, clear, humane conceptions of modern science."
Could it be said that a substantially changed constitutional order was one consequence of American Progressivism? Did the complex structure of economic regulation embodied in the Interstate Commerce Commission, enforcement of the sherman act, the Federal Trade Commission, railroad regulation, and a host of other economic measures fundamentally alter the relationship of the state to the economy? Did the interventionism embodied in the growing body of social legislation, accumulating restrictions on immigration, the civil liberties onslaught of the war years, and the passage of national prohibition fundamentally alter the relationship of government to American society and the individual rights of its citizens? Did the sequence of interventionist foreign policy actions, delimited at one end by the acquisition of overseas colonies after the Spanish American War of 1898, and at the other by American intervention in World War I, fundamentally alter the place of foreign affairs in the American political order?
In sum, did the early twentieth-century outburst of legislation, executive leadership, new agencies, and new government functions lead to what has been called "a qualitatively different kind of state"? Did a corporate-bureaucratic system of government supplant the nineteenth-century American "state of courts and parties"? john w. burgess held in 1923 that the past generation had seen the transformation of American constitutional law from a stress on the protection of individual liberty to the imposition of "autocratic" governmental power over property, persons, and thought.
The distinctive American style of government that took form during the first century of the nation's history rested on the balance and separation of powers among the executive, legislative, and judicial branches; on a federalism that rendered (through the police power) to the states the things that were social; and on a conception of individual rights that, for all its abuses and distortions (the sacrifice of southern blacks to the not-so-tender mercies of southern whites; the use of the due process clause of the fourteenth amendment to spare corporations the indignity of state regulation and taxation), arguably gave nineteenth-century Americans more individual freedom from the interposition of the state than any other people in the world. To what degree was that constitutional order changed between 1901 and 1921?
Of course there can be no definitive answer: the glass of change inevitably will remain partially filled for some, partially empty for others. But an obscure chapter in the constitutional history of the United States may come into clearer focus if we abandon the traditional historiographical emphasis on Progressive "reform" in favor of an examination of the major instrumentalities of government: Congress, the presidency, the bureaucracy, and the mechanisms governing federal-state relations.
Congress was the branch of government that underwent the most overt and formal alteration during the early twentieth century. Two major changes, the popular election of senators through the passage of the seventeenth amendment, and the reduction of the powers of the speaker of the House of Representatives, came about in these years. These changes were products of the widespread view that Congress, like the parties, was under the control of corrupt, machine-bound politicos and sinister business interests.
Six times between 1893 and 1911 the House approved a direct election amendment. Finally, spurred by an arrangement whereby progressive Republicans agreed to drop the cause of black voting in the South in return for southern Democratic support, the Senate accepted the change. The Southerners assured that control of the time, place, and manner of holding senatorial elections would remain the province of each state.
A 1911 law sought also to assure that congressional districts would be compact, contiguous, and of roughly equal populations. But enforcement was so difficult, and the courts were so loath to intervene, that it had little effect. And although the direct election of senators gradually reversed the tendency (at least until recent times) for the Senate to become a "millionaires's club," it cannot be said that that body's role in the governmental process was substantially different in the 1920s from what it had been before 1900.
The controversy over the House speaker's authority was more intense. Joseph G. Cannon, the speaker from 1901 to 1911, appointed and was himself one of the five-member Committee on Rules, thus controlling assignments to the key committees of the House, which he populated with like-thinking conservatives. His power to expedite the work of an unwieldy legislature had been a late-nineteenth-century reform, designed to keep a boss-ridden legislature from working its will. Now it appeared to a majority of congressmen as an obstacle to the more programmatic demands of Progressive government. In 1910–1911 a coalition of Democrats and insurgent Republicans deprived Cannon of his power to serve on and appoint the Rules Committee, to choose standing committees, and to recognize members on the floor.
The seniority system came into general use as a more equitable means of choosing committee chairmen—a "reform" of the sort that Finley Peter Dunne's Mr. Dooley presumably had in mind when he commented on the Progressive predilection for structural change: "I wisht I was a German, and believed in machinery." But by the 1920s the House was as much under the control of the majority party leadership as it had ever been. During most of the decade, the Republican speaker, rules committee chairman, and floor leader ran the GOP Steering Committee and, hence, Congress. Surely Cannon would have nodded approval of floor leader John G. Tilson's estimate of his role in the 69th Congress (1929): "It will probably be said with truth that the most important work I have done during the session has been in the direction of preventing the passage of bad or unnecessary laws."
Much of the constitutional controversy of the early twentieth century focused on the character of the presidency—and of the Presidents. The Spanish American War and the governance of territories afterward gave william mckinley ' s administration some of the attributes of the modern presidency, and led to concern over "The Growing Power of the President." But it was the chief executives of the Progressive years who gave a dramatically new shape to the office.
Theodore Roosevelt's executive vigor, his flamboyant efforts to turn the presidency into a "bully pulpit," his concern with issues such as the relations between capital and labor, the trusts, and conservation, and his assertiveness in foreign policy gave his presidency a cast of radicalism. Critics often spoke of him—more so than of any president since abraham lincoln—as having stretched the Constitution to its limits and beyond. Roosevelt himself thought that the power of the presidency enabled him "to do anything that the needs of the nation demanded.… Under this interpretation of executive power, I did and caused to be done many things not previously done.…I did not usurp power, but I did greatly broaden the use of executive power." But Roosevelt's innate conservatism, the traditionalist goals that informed most of his actions, and his political skill meant that few of his initiatives ran into constitutional difficulties. The most serious congressional objections on constitutional grounds came in the debate over the hepburn act expanding the power of the Interstate Commerce Commission (ICC); and Roosevelt adroitly compromised by leaving untouched the courts' power to review the ICC's decisions.
A contemporary said that the difference between Roosevelt and his successor, William Howard Taft, was that when a desirable course of action was proposed to Roosevelt he asked if the law forbade it; if not, then it should be done. Taft, on the other hand, tended to ask if the law allowed it; if not, then Congress must be asked. Taft brought a judicial temperament and experience (and almost no elective experience) to his office. He was thus a more self-conscious advocate of a limited presidency, and celebrator of the supremacy of law and of constitutional limitations, than any of his Republican predecessors.
Yet these views did not prevent his administration from adopting a more vigorous antitrust policy than that of Roosevelt. And Taft advocated innovations such as the establishment of a commerce court to review ICC decisions and the institution of a federal budget drawn up by the executive branch. The realities of early-twentieth-century American public life weighed more heavily than the niceties of constitutional theory.
Woodrow Wilson as a scholar of American government had long been critical of the traditional relationship between President and Congress. He often praised the British system of ministerial responsibility; his ideal President resembled the British Prime Minister. But as chief executive Wilson more closely followed Roosevelt's conception of the presidency as a bully pulpit (though perhaps with less bullying and more pulpit-pounding). And even more than Roosevelt he took the lead in formulating and seeing to the passage of legislation, a course symbolized by his breaking a tradition that dated from the time of thomas jefferson by personally proposing legislation in a message to Congress.
The scope and coherence of Wilson's legislation was far greater than that of his predecessors. But it is worth noting that of the numerous major bills passed in his administration, including the Federal Reserve Act, the federal trade commission act, the clayton antitrust act, the webb-kenyon act, the espionage act, and the sedition act, only the keating-owen child labor act was struck down by the Supreme Court.
With the entry of the United States into World War I, Wilson assumed presidential leadership of a sort that had not been seen since the time of Lincoln and the Civil War. The mobilization of American agriculture, industry, military manpower, and public opinion led to federal intervention into private activity on a massive scale. The creation of agencies such as the War Industries Board, the Food, Fuel, and Railroad Administrations, the War Finance Corporation, the National War Labor Board, and the Committee on Public Information, and statutes such as the selective service act, the espionage act, the Webb-Pomerene Act (which allowed exporters to organize cartels), and the Overman Act (which greatly expanded the President's power over federal bureaus and agencies) amounted to an unprecedented increase of federal power and its concentration under the President.
Did these circumstances in fact add up to a basic change in the constitutional character of the presidency? Certainly the administrations of warren g. harding and calvin coolidge did not suggest so: they would have been comfortable with the most ardent (and least efficacious) practitioners of the limited presidency of the nineteenth century. Nor did herbert hoover, whose ambitions resembled those of his Progressive predecessors, exercise effective executive leadership on a bold new scale. And when franklin d. roosevelt came into office in the trough of the Depression in 1933, he found it necessary to rest his call for a "temporary departure from [the] normal balance" of "executive and legislative authority" on the need for a "broad executive power to wage a war against the emergency as great as the power that would be given me if we were in fact invaded by a foreign foe."
For all the pressures of early-twentieth-century social, economic, and cultural change, the executive branch's constitutional position altered little if at all. After 1921, as before 1900, the powers of the presidency depended not upon alterations in Article II of the Constitution, or upon what the Supreme Court made of that article, but on the political skills of the incumbent and on the course of events: war and peace, prosperity and depression, the growth and alteration of government itself.
The argument that the character of American government underwent major change during the early twentieth century rests on the rise of an administrative state. Certainly one distinguishing characteristic of this period was the proliferation of administrative courts, boards, and commissions, with an attendant expansion of the powers, rules, and regulations of the public administration sector of the American state.
The ideal of expert administrators functioning through (or above) restraints such as party politics, federalism, or the balance of powers had a strong appeal to the Progressive generation. Abbot Lawrence Lowell warned: "If democracy is to be conducted with the efficiency needed in a complex modern society it must overcome its prejudice against permanent expert officials as undemocratic."
The courts had performed a number of essentially administrative and regulatory duties during the nineteenth century. Now, as economic and social problems became more complex and technical, so grew routinized and prescribed administrative processes, in which rule replaced discretion in public law. State laws and constitutions became ever more detailed and codelike; state regulatory agencies multiplied and gained substantially in independence. Federal laws increasingly left to administrative officers the "power to make supplementary law through rules and regulations."
The American involvement in World War I led to an exponential growth of administrative agencies and their power. The War Industries Board and its allied commissions had control over the American economy of a sort only dreamed of in Theodore Roosevelt's New Nationalism. Under the wartime espionage act, the Post Office Department, the Department of Justice, and the Committee on Public Information wielded powers of suppression and persuasion over American thought and opinion that had no analogue in the nation's past.
Just where administrative law and its accompanying instrumentalities stood in the constitutional system was a matter of continuing concern. Woodrow Wilson observed in his pioneering 1887 essay "The Study of Administration" that "the field of administration is a field of business. It is removed from the hurry and strife of politics; it at most points stands apart even from the debatable ground of constitutional study." But administration was political in its relationship to law, to policy, and to interest group pressures; and it had an intimate relationship to—indeed, was very much a part of—the constitutional system of American government. In many ways the history of American public administration between 1900 and 1921 was a painful instruction in those home truths.
Administrative law of a sort had been part of the American constitutional system since the nineteenth century. Pensions, customs, internal revenue, land grants, and patents were administered by governmental agencies subject to little or no judicial review. There was continuing resistance to the idea that public administration had a distinct place in the constitutional order. Bruce Wyman, in one of the earliest systematic discussions of administrative law, set the subject in the context of Anglo-American common law rather than constitutional law, holding that the central issue was whether public administration was subject to the same rules of law as governed the relations of citizens with one another.
Adolph Berle took another tack, arguing that administrative law was in fact the application of the will of the state by all three branches, for modern conditions made the traditional differentiation of functions impossible. Administrative law's constitutionality, he implied, rested on the proposition that all of the branches of government were essentially instruments for the expression of the popular will. Thus administrative law was "not a supplement to constitutional law. It is a redivision of the various bodies of law which previously had been grouped under the head of constitutional law."
The courts created evasive categories—"quasilegislative," "quasi-judicial"—which enabled them to accept administrative powers without addressing the question of whether or not these threatened the separation of powers. By 1914 it appeared that "the exercise of certain discretionary power by administrative officers formally considered legislative is now held unobjectionable."
The growth of the federal bureaucracy, its increasing adherence to its own norms and standards, the fact that it was more and more under the civil service rather than political patronage—all of this has been taken to herald the arrival on the American scene of an autonomous administrative state. But the continuing subservience of government and public policy to the dictates of party politics, the competing governmental units of Congress and the courts, and underlying it all the persisting individualism, hostility to the state, and diversity of American life and thought, meant that the administrative expansion of the early twentieth century did not go on unchecked.
During the war, and immediately after, a number of intellectuals put forward schemes of postwar domestic economic and social reconstruction; they thought that the wartime infrastructure of governmental control and direction might be turned to more basic postwar problems. It soon became apparent, however, that both ideology and politics were working in another direction. Wilson himself told Congress in December 1918: "Our people … do not want to be coached and led.… [f]rom no quarter have I seen any general scheme of "reconstruction' which … we could force our spirited businessmen and self conscious laborers to accept with due pliancy and obedience."
Similar forces worked to constrain the outward reach of postwar foreign policy embodied in the League of Nations. Both courts and legislatures after the mid-1920s began to turn from the radical-bashing of the Espionage Acts and the 1919–1920 Red Scare to begin the erection of the broad definition of first amendment freedoms that would come to prevail in the modern American definition of civil liberties. A 1918 survey of American administrative law (probably by the young harold laski, surely no enemy of the active state) warned that "with the great increase of state activity … there never was a time "when the value of the bill of rights " will have been so manifest."
As in so many other areas of American government, surface changes did not necessarily alter underlying continuities. Congressmen and party leaders may no longer have had the patronage power that once had been theirs. Yet Congress as an institution, and congressmen as party politicians, remained intensely sensitive to the political implications of administrative appointments, activities, and, perhaps most of all, budgets.
Attempts by the Presidents of the time to extend the control of the executive branch over the bureaucracy frequently ran afoul of congressional opposition. By 1921 it was an arguable point—as, indeed, it always had been—whether the bureaucracy was more subject to the direction of the President or to the will of Congress. One thing was certain: the autonomy of the bureaucracy—from Congress, from the parties, from politics—was not markedly greater than it had been a generation before.
True, administrative law as a field of theoretical concern and practical application would continue to develop. The New Deal did not spring fully armed from the brow of Franklin Roosevelt, but was built on a solid foundation of national and state precedents. From an international (and a later American) perspective, the New Deal's experiments did not seem especially bold and revolutionary. But the scale and passion of the charges of a broached constitutionalism raised by the New Deal's opponents in the 1930s suggests just how limited was the pre-1933 acceptance of an American administrative state.
One more aspect of the evolution (or non-evolution) of the American Constitution during the early twentieth century demands attention. That is the hoary principle of federalism: the distribution of functions between the state and federal governments.
In theory the Civil War and the postwar amendments had settled the nagging early-nineteenth-century question as to the degree to which the states were independent governmental entities. Relatively little attention was paid to the question of federalism during the late nineteenth century, in large part because the issues that most engaged the national government—tariff and currency policy, foreign relations, Indian affairs—were of marginal concern to the states. But as the full force of industrialism and urbanism began to change public policy in the early twentieth century, the relative roles of the federal and state governments once again became a matter of constitutional importance. The police power over health, safety, morals, and (from the late nineteenth century on) welfare, was the major legal basis for state social and economic legislation. For the most part the court accepted this; as zechariah chafee, jr. observed in 1920, "The health, comfort, and general welfare of the citizens are in charge of the state governments, not of the United States."
But of the 194 Supreme Court decisions that invalidated state laws between 1899 and 1921, 102 were explained on the ground that the laws violated the distribution of powers embodied in the principle of federalism. By the 1920s and the early 1930s there was much talk of a judicial dual federalism that had created a "twi-light zone" in which neither state nor federal power applied. And the attempt of the New Deal to create a new level of national intervention in the realms of economic regulation and social welfare led to one of the great constitutional controversies in American history. Once again, it would appear that the policy changes of the 1900–1921 period were not accompanied by a significant alteration of the constitutional order.
Berle, A. A., Jr. 1916–1917 The Expansion of American Administrative Law. Harvard Law Review 30:430–448.
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Note 1915 Delegation of Legislative Power to Administrative Officials. Harvard Law Review 28:95–97.
——1918 The Growth of Administrative Law in America. Harvard Law Review 31:644–646. Skowronek, Stephen 1982 Building a New American State: The Expansion of National Administrative Capacities, 1877–1920. Cambridge: At the University Press.
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