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
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.
Movements for Change: Populism and Progressivism
Movements for Change: Populism and Progressivism
Populists. The spirit of protest —whether generated by radicals and labor unionists, by critics such as George and Bellamy, or by farmers reeling from low prices—ani-mated third-party politics in the 1880s and 1890s. During the 1880s diverse agrarian organizations such as the Farmers’ Union, the Texas State Alliance, and the National Colored Farmer’s Alliance joined forces to form two large national organizations: the Southern Alliance and the National Farmers Alliance of the Northwest. These groups singled out several enemies, including the “Eastern money interests” that controlled monetary supply and policy, the network of middlemen who moved crops from field to market, the large railroad companies whose influence over the agricultural economy and national politics was widespread, industrial monopolies, and supporters of the gold standard. Eager for a solution to the many problems faced by farmers in the 1880s and 1890s, the alliances supported a broad program of political, economic, and monetary reform.
The People’s Party. The genesis of the People’s Party, or Populists, came in December 1889, when representatives of the two farmers alliances and labor groups met in Saint Louis with members of the Grange—a militant group that had been forming farm cooperatives and fighting for government regulation of the rates charged farmers by railroads and warehouses—and members of the Greenback Party, founded in 1875 by Grangers and others favoring the circulation of more paper money and opposing a return to the gold standard. The Greenback Party had unsuccessfully fielded presidential candidates in the 1876, 1880, and 1884 elections and had had some success in the congressional elections of 1878, but it had become largely defunct after 1884. The People’s Party combined agrarian and labor protests and the farming interests of the South and West against the rich and more politically powerful East. The first statewide People’s Party was formed in Kansas, and more soon fol-lowed. On 19 May 1891 at a gathering in Cincinnati more than fourteen hundred delegates from thirty-two states formed the national People’s Party.
The Populist Platform. The Populists called for many of the reforms demanded by farm and labor interests, including increased coinage of silver money, a national cur-rency, governmental regulation or ownership of all transportation and communication lines, a graduated income tax, lower tariffs on manufactured goods, a postal savings bank, direct elections of U.S. senators, adoption of the secret ballot, the establishment of the initiative and the referendum (measures that allowed the introduction and passage of laws by direct vote of the people), prohibition of foreign ownership of land, a shorter workweek, and restrictions on immigration. One of the Populists’ more radical proposals was Southern Alliance leader Charles W. Macunis’s “sub-treasury system,” a plan that called for government warehouses where farmers could deposit their crops and receive credit—in the form of green-backs—until the crops were sold.
Setting a National Agenda. The Populist Party proved to be an important force in national politics, with impressive showings in the 1892 and 1894 elections, and the party succeeded in bringing the issues of money supply, labor and farm grievances, anxiety about monopolies (particularly the railroads), and the unfair effects of the tariff to the national stage. Many Americans were frightened by the Populist alliance between farmers and labor-ers, seeing their ideas as radical and potentially dangerous for the country. While the Populist Party went down to defeat in the 1896 presidential election, when they endorsed the Democrats’ free-silver candidate, William Jennings Bryan, many of their proposals were taken over by progressive candidates in other parties, and the Populist movement continued to animate national politics until World War I.
Progressivism. By the end of the nineteenth century reformers in both major political parties were calling themselves “progressives” to indicate their commitment to a just and equitable society. These reformers were spurred on by accounts of urban blight written by reporters such as Jacob Riis, by political orators such as Populist and Democrat Williams Jennings Bryan, and by grassroots organizations such as the Nationalist Clubs and the Single-Tax Clubs. Furthermore, Constant agitation over the limited money supply, poor working condi-tions, the discriminatory tariff, and the restriction of women from voting, led many reformminded citizens and politicians to search for new ways to address problems spawned by rapid urbanization and industrializa-tion. Rather than a single party, progressivism was a loose coalition of reform groups and impulses that shaped national and local politics well into the twentieth century.
Cleaning up Corruption. Progressivism developed from a wide variety of pressures for modernizing society and for cleaning up corruption on local, state, and national levels. Moral reformers attacked the spoils system, political corruption, boodle, and the power of saloons. Many of these reformers worked at the municipal level, and helped to elect reform mayors and city councils in small and large cities. Other groups sought to establish a more sound political democracy, advocating direct election of senators, a secret ballot, and votes for women. Still others hoped to modernize government by bringing the navy and military up to date and by building a stronger federal government that could regulate corporations and the economy. Many hoped to take what they saw as the short-sighted, narrow-minded focus of partisan politics out of important national policy issues such as the money supply and tariffs and to create a governing class that would watch out for national rather than local and party-based allegiances.
Working within the Two-Party System. Progressive reformers continued build a political power base through elections. As with the Greenback Labor Party, the Popu-lists, Henry George, and the prohibition movements, progressives attempted to gain control of political parties and to win elections on the state and national levels. Unlike earlier reformers, however, progressives worked within the Democratic and Republican Parties, lining up behind whichever candidate endorsed the reforms they supported.
Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge, Mass.: Harvard University Press, 1977).