PROGRESSIVISM

In the decades after the civil war, American law was forced to accommodate to the increasing pace of economic change as the United States was transformed from an agrarian, rural nation of small operatives into an urban, industrial nation characterized by huge transportation, manufacturing, extractive, and financial corporations that served national rather than local or regional markets. The Standard Oil trust, formed in 1882, consisted of thirty-nine different companies that pumped oil in eight states, refined it in six, and sold it everywhere. Railroad mileage increased from 36,801 miles in 1866 to 193,346 in 1900, and the gross national product increased by a factor of twelve. By 1900, the United States was producing more steel than Great Britain and Germany combined. Nevertheless, the devastating depression of 1893–1897 underscored the pain, human suffering, and dislocation caused by industrialization—ranging from child labor to burgeoning farm tenancy, strikes, and massive unemployment (which ran as high as twenty percent during the darkest months of the depression). It also underscored the lack of rationality and order in the marketplace. The century ended with a flurry of mergers as 2,274 firms disappeared during the years 1898–1910.

Historians have questioned whether there was a "Progressive movement," disagreed about who were its leaders and followers, and argued about its dates. Around the beginning of the twentieth century, institutional reform occurred at many levels of government, but Progressives were not unified by party, class, or objectives. For example, those who favored economic efficiency, such as the conservationists, seldom showed much sympathy for those who championed social issues. Not surprisingly, the Progressives never decided how the business corporation could be made more accountable to public opinion or what role it should play in American society. Since the colonial period, American law has attempted to blend pormotional and regulatory elements, though the former prevailed for most of the nineteenth century. It has proved far easier to promote economic growth—through such legal mechanisms as eminent domain, the power of incorporation, tax policy, and limits on liability for personal injury—than to regulate it.

For constitutional and legal scholars, it is appropriate to define the Progressive era as the years from about 1886 to 1917. Some recent historians look more charitably on the Supreme Court during this era than did scholars who wrote before the 1970s. They argue that many Justices were by training and inclination classical liberals who saw the Constitution as the embodiment of natural law. These judges wanted to preserve higher law rights and individual liberty, limit monopoly and government "paternalism," and protect the central government from expanding state police power. They rejected "special privilege" in all forms. Earlier historians had charged that most members of the Court regarded the Constitution as primarily designed to protect property, that they knew little about American history and institutions, that they stubbornly clung to an organic, almost feudal view of society, and that they contributed to the growth of vast economic oligarchies. The critics insisted that state courts—particularly in their reliance on liberty of contract and in their use of injunctions to break strikes—were no less activistic, regressive, or anachronistic than the High Court.

It is not clear that the Supreme Court was out of step with public opinion or that its members held substantially more "conservative" values than did the mass of Americans. (Even in the midst of the depression, the Republicans won in a landslide in 1894 and william mckinley beat William Jennings Bryan easily in 1896.) Nevertheless, no charge was more popular during the Progressive era than that the courts had systematically violated the basic structural principle of the Constitution—the independence of the three branches of government. In 1895 the High Court rendered two decisions that struck at the heart of national legislative power. In united states v. knight co. the Court, which traditionally had defined the commerce clause very broadly, emasculated the sherman antitrust act (1890) by ruling that the American Sugar Company, which refined more than 90 percent of the nation's supply, monopolized manufacturing but only indirectly commerce. (The Court drew the same kind of fine distinction when it refused to accept use of the commerce clause as a limit on child labor because only the products of labor, not the labor itself, was involved in interstate commerce.) In the same year, the second pollock v. farmers ' loan and trust co. decision ignored well-settled precedent by invalidating the national income tax of 1894. And in 1896 interstate commerce commission v. cincinnati, new orleans, texas pacific railway denied that Congress had granted the Interstate Commerce Commission power to set rates.

Simultaneously, the Court, led by Justice stephen j. field, reinterpreted the due process clause of the fourteenth amendment, making it a substantive protection of property against "arbitrary" and "confiscatory" state and federal regulations, not just the constitutional guarantee of a fair trial. Munn v. Illinois (1877) had clearly upheld the power of individual states to regulate the use of private property in the public interest; it had rejected substantive due process as the Court had done earlier in the slaughterhousecases (1873). But substantive due process—which won its first great victory in stone v. farmers ' loan and trust company (1886)—added new power to judicial review. A similar spirit permeated the Court's statutory interpretations, as in the rule of reason articulated in standard oil company v. united states (1911), which suggested that monopoly in and of itself was not illegal and that only the courts could define what charges, rates, or business practices were "reasonable." In lochner v. new york (1905) it relied on the liberty and contract doctrine, which was based on substantive due process of law, to argue that the state could not use its police powers to regulate maximum work hours, except in dangerous jobs or jobs that immediately affected the public health; the Court held that bakers, unlike miners, did not do dangerous work. The right of workers to sell their labor at the highest price and of employers to buy it at the cheapest price took precedence. And in hammer v. dagenhart (1918) the Court went against well-established precedent in declaring that the first federal child labor law went beyond Congress' commerce power, threatening the police power of the states and the balance between federal and state authority.

Many jurists and politicians fought against the conservative drift of the courts during the Progressive era, proposing reforms that included the recall of judges, the standardization of state incorporation laws, and the use of sociological jurisprudence to expand the vision and accountability of courts. But these proposals had little impact on the new industrial order. Far more important was the rule of law itself, for Progressivism was shaped by American values and faith in the American legal process. Most Americans preferred reform through law, a process of constitutional change, rather than revolution. The Progressives' faith in the rationality of man, progress, and the curative powers of law prompted such reforms as the initiative, referendum, recall, and direct elections of United States senators. They did not attack such underlying problems as poverty, racism, discrimination, and the insecurity of labor. Nor was there any major revamping of the legal system itself. Many Progressives argued that judicial review threatened the doctrine of separation of powers, that it was inherently undemocratic, that it might as logically have been exercised by Congress or the President as by the Supreme Court, that most rulings of unconstitutionality had little to do with the language of the Constitution, that the frequency of 5–4 decisions violated the principle that only laws clearly unconstitutional should be invalidated, that split decisions threatened to undermine public faith in the entire justice system, and that judges had little understanding of American society. Yet Congress was unable to adopt major reforms, and most Americans remained wary of tampering with the judicial system.

Although by the 1920s the Interstate Commerce Commission, Federal Trade Commission, and the Federal Reserve Board were the only important national regulatory agencies, by that time the commission had won out over other options (including antitrust prosecutions, which met with little enthusiasm after the Progressive era, save for a few years at the end of the 1930s). The commissions served many purposes, including fact-gathering, education, disclosure of illegal practices, encouragement of innovation, the cartelization of industries, and restrictions on monopoly and oligopoly. They combined legislative and judicial functions, or adjudication and planning, and, even more important, they maintained respect for property by following elaborate administrative hearings and procedures similar to regular courts. They built on the assumption that by removing issues from the courts and legislatures, public servants could decide the proper shape and conduct of American business. In short, the commissions fitted comfortably with American views of the legal process.

The regulation of business was one thing; basic reform of the economic system, however, was uncongenial to most Americans. The Progressives agreed that the new industrial order had to be made more predictable, accountable, and responsible; that much was obvious. They also recognized the limits of judicial regulation of business, the judges' lack of knowledge of the economic system, the inability of courts to act unless a complaint was brought to them, and the courts' inability to engage in long-range policy-making. However, while many Progressives feared bigness per se, others looked forward to a new society built on organization, cooperation, and specialization; the competition that had been so valued in the nineteenth century appeared to them as anachronistic and dangerous. The Progressives no less than those who supported the new deal could not agree on what the structure of business should be, nor could they agree on the form or forms regulation should take. Therefore, many regulatory tools—such as selective corporate taxes (as on companies that used child labor or had interlocking directorates), national incorporation, and an expansion of the national police power—did not receive the attention they deserved. American values were ambivalent. Most Progressives regarded laissez-faire with disdain, yet they also believed in the sanctity of private property, economic individualism, and a society driven by the harmony of self-interest rather than by the clash of classes.

Donald J. Pisani
(1992)

(see also: Child Labor Amendment; Child Labor Tax Act; Conservatism; Federal Trade Commission Act; Liberalism; Progressive Constitutional Thought.)

Bibliography

Beth, Loren P. 1971 The Development of the American Constitution, 1877–1917. New York: Harper & Row.

Sklar, Martin J. 1988 The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, The Law, and Politics. Cambridge: Cambridge University Press.

Swindler, William F. 1969 Court and Constitution in the Twentieth Century: The Old Legality, 1889–1932. Indianapolis and New York: Bobbs-Merrill Co.