Peckham, Rufus W. (1838–1909)

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PECKHAM, RUFUS W. (1838–1909)

Rufus Wheeler Peckham, the last of President grover cleveland's four appointees to the Supreme Court, was commissioned in 1896 following eight years of service on the New York Court of Appeals. His name is linked most often with one of the half dozen most fulsomely denounced Supreme Court decisions in American history. Speaking for a majority of five in lochner v. new york (1905), Peckham invoked the substantive due process doctrine of "liberty of contract," which he had established in an incipient form in allgeyer v. louisiana (1897), and invalidated a statute regulating the hours worked by bake-shop employees. (See freedom of contract.) Peckham's opinion infuriated progressive reformers, evoked one of Justice oliver wendell holmes's most famous dissents, and ultimately contributed a new term to the lexicon of constitutional discourse in America. More than four generations later, "Lochnerism" is habitually used by commentators to describe the horrible consequences of interventionist judicial review in defense of doctrinally abstract constitutional rights.

Holmes once remarked that the "major premise" of Peckham's jurisprudence was "God damn it." It was an apt observation. Peckham was outraged by the increasing propensity of state legislatures and the Congress to transcend "the proper functions of government," and he not only conceptualized the judicial function in essentially negative terms but also regarded the Court as an appropriate forum for battling the ominous evils of centralization and socialism. For Peckham, the Court's role in constitutional adjudication was to police the boundaries separating the rights of the individual, the powers of the states, and the authority of the general government in such a way as to keep each within its proper sphere. Otherwise, he warned while still on the New York bench, "in addition to the ordinary competition that exists throughout all industries, a new competition will be introduced, that of competition for the possession of the government."

Peckham had boundless confidence in his capacity to draw objective lines between these mutually limiting spheres. He dissented in champion v. ames (1903) on the ground that a federal statute prohibiting interstate distribution of lottery tickets was not a regulation of commerce at all but rather an attempt by Congress to usurp the reserved power of the states to regulate public morals. And in Lochner Peckham conceded that state governments might prevent individuals from making certain kinds of contracts, only to conclude that there was no "direct relation" between the hours worked by bakeshop employees and either the public health or the health, safety, and morals of the workers. Peckham, in short, knew a police regulation or an exercise of the commerce power when he saw one. Holmes may have been astonished when Peckham claimed that legitimate governmental interventions were readily distinguishable from those with only a "pretense" of legitimacy. But most Americans were accustomed to the claim. The spate of veto messages issued by President Cleveland were strikingly similar to Peckham's judicial opinions in both substance and style.

Peckham's voting record in cases involving race relations reflected another principal goal of the Cleveland Democracy—"home rule" for the South. The great spokesman for liberty of contract joined the majority in hodges v. united states (1906), which denied federal jurisdiction over conspiracies to prevent blacks from making or carrying out labor contracts. He also concurred in berea college v. kentucky (1908), where the Court upheld a statute prohibiting even voluntary interracial education. If Peckham perceived a principled difference between the right of employers and employees to contract in Lochner and the right of individuals freely to associate in Berea College, he never described it. Yet it appears that Peckham rarely worried about such overarching conceptual problems. He not only managed to keep race relations and employment contract issues in separate analytical compartments but also voted to impose more stringent public use requirements on state governments when they regulated prices under the police power than when they exercised the eminent domain power. Peckham stridently criticized the doctrine of Munn v. Illinois (1877) throughout his career, arguing that storage rates charged by grain elevator firms were not subject to regulation because the owners had not devoted their property "to any public use, within the meaning of the law." (See granger cases.) In Clark v. Nash (1905), however, he sustained a law that permitted individuals to condemn rights-of-way across their neighbors' land for irrigation and mining purposes. "What is a public use," Peckham declared, "may frequently and largely depend upon the facts surrounding the subject, and … the people of a State … must in the nature of things be more familiar with such facts" than the federal judiciary.

Peckham wrote 448 opinions during his fourteen years on the Court, more than thirty percent of which were dissents. Very few of his majority opinions have stood the test of time. Modern commentators almost unanimously regard most of the results he reached to be insupportable and his mode of reasoning unfathomable. But it was Peckham himself who best summed up both the implications of his work for American public life and the internal contradictions that hastened its demise. "At times there seems to be a legal result which takes no account of the obviously practical result," he wrote in Sauer v. City of New York(1907). "At times there seems to come an antithesis between legal science and common sense."

Charles W. Mc Curdy


Skolnik, Richard 1969 Rufus Peckham. Pages 1685–1703 in Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1967. New York: Chelsea House.