“Liberalism! Not in all history has a word been so wrenched away from its true meaning and dragged through the gutter of defilement,” the Wilsonian Progressive George Creel protested angrily in a memoir of 1947: “Where it once stood for the dignity of man, … it now stands for the obliteration of individualism at the lands of a ruthless, all-powerful state.”[1] For nearly fifty years, most scholars have given little heed to the rage vented by Creel and other critics of New Deal “liberalism.” Amidst the expansion of the American welfare state, the outlook and ideas of the anti-New Dealers seemed at best naively outdated and at worst positively pernicious. History—in the form of an increasingly massive, paternalist, neo-mercantilist, bureaucratic state—seemed to be firmly on the side of those who advocated the expansion of federal authority over more aspects of American life.
Recent political and judicial debates—and events—have jolted that conception of historical change. More important for our purposes, they have renewed scholarly interest in American liberalism in its “laissez-faire” and Progressive era forms and in the “constitutional revolution” of 1937 that, in the accounts of many political historians and some legal scholars, effectively marked the transition to a new regime of “welfare-state liberalism.”[2]
This article places the events of 1937 in the context of the evolution of American liberalism over the previous half-century and suggests, with Creel, that those events represented a sharp and important break not only from laissez-faire constitutionalism but also from progressive-era liberalism. It focuses on the career—and evolving liberal outlook—of Charles Evans Hughes, one of the most influential men in American public life during the first half of the twentieth century. Born in 1862 and coming of political age in the period of “good government” Mugwumpism, Hughes became a Progressive Era reformer and governor. Indeed, he helped to define modern state government by enhancing the powers of the governor and the administrative bureaucracy—an achievement that nearly won him the presidency in 1916 and led to his appointment as Secretary of State from 1921 to 1925. Hughes’s impact on American law was even greater, first as an associate justice of the United States Supreme Court from 1910 to 1916 and then as chief justice from 1930 to 1941. Despite his prominence in many fields, Hughes is known today primarily by legal historians, so that the fate of his public reputation is one Strange Death we must understand.[3]
A second Strange Death is central to Hughes’s ideological odyssey: the rise and eclipse of the transnational reform movement known in Britain as the New Liberalism and in the United States as Progressivism. In Britain, the New Liberalism rose rapidly, achieved much, and then quickly died. During World War I, the rise of the Labour Party and a hardening of class lines eclipsed the Liberal Party and its ameliorative social agenda.[4] In the United States, the fate of Progressivism was more complex and protracted. More complex because American Progressivism was not a political party but a congeries of reform groups with distinct social bases and political priorities. More protracted because the strength of capitalist institutions and ideology, along with the federal character of American government, delayed the appearance of a class-divided polity and a centralized administrative state until the mid-1930s. At that historical moment, as Daniel Rodgers suggests in Atlantic Crossings: Social Politics in a Progressive Age, many of the European-influenced reforms advocated by American New Liberals between 1900 and 1914 came to fruition. The key events came in 1936, in the overwhelming electoral triumph of Franklin D. Roosevelt (the equivalent of the Liberal Party’s crushing victory in the British general election of 1906), and in 1937, in the acceptance by the Supreme Court of the New Deal’s regulatory and welfare-state regime.[5] However, contrary to Rodgers, I will argue that this constitutional revolution represented not the fulfillment of Progressive-era liberalism but its death knell. By accepting the legitimacy of the centralized direction of American life through congressional legislation and presidential executive orders—what conservatives of the time condemned as “Statism” and their counterparts today call “big government”—the Supreme Court permitted and encouraged the creation of a bureaucracy-rich, national administrative regime.[6]
My account draws heavily on the extraordinarily rich legal scholarship on the constitutional history of the 1930s while refracting it through the life and ideology of the chief justice. It suggests that there was a significant shift in 1937 in Hughes’s stance and addresses six important recent interpretations of the Hughes court. Three of them, by Barry Cushman, Richard Friedman, and Edward White, deny that there was a constitutional revolution in 1937. Adopting an internalist legal perspective, Cushman maintains that by the 1930s the Supreme Court had accepted so much regulatory legislation that it had destroyed the “coherence and symmetry” of the old system of laissez-faire constitutionalism; by 1937, there was hardly anything to overthrow. Cushman also suggests that the Court rejected early New Deal legislation because it was poorly drafted and approved later statutes not because of external political pressure but because they were carefully crafted to avoid constitutional challenge.[7] Richard Friedman likewise depreciates the importance of 1937. In his view, the conservative outlook of the Taft court of the 1920s was undermined initially in 1930 by the appointment of Hughes and of Owen J. Roberts and then, more decisively, after 1937 by the judges named by Franklin Roosevelt. Moreover, Friedman’s close analysis of the leading cases and the court-packing controversy fails to reveal a “switch in time that saved nine” either by Hughes or (though with less certainty) by Roberts.[8] Edward White similarly argues that the decisions of 1937 were part of a doctrinal revolution that began in the late 1920s and concluded only in the early 1940s. This decade-long transformation swept aside the traditional view that “fundamental constitutional principles” were fixed and eternal and required only a restatement in order to “accommodate” events. In its place stood a “new orthodox conception of constitutional adaptivity” in which justices and legislatures assumed that a “living constitution” should be “responsive to changing economic and social conditions.”[9]
Despite their many merits, these interpretations fail to capture the political and rhetorical intensity on the Court in Depression-era America. In private correspondence Chief Justice Taft labeled his three liberal colleagues as “the Bolsheviki” and Judge Learned Hand called the four conservative justices the “Mastiffs” and the “Battalion of Death.” More important, they obscure the fundamental shift in American ideology and institutions that enraged Creel and deeply troubled Hughes: the transit from American New Liberalism to New Deal Statism. In this regard, the accounts by Cass Sunstein, Bruce Ackerman, and Michael Parrish are more persuasive.[10] In different ways, these scholars argue that the election of 1936 and the subsequent court decisions profoundly altered the “baseline” of constitutional doctrine and political possibility. However, these interpretations are too narrow, because their constitutional focus and American particularism obscure both the transnational dimension of the decline of the New Liberalism and its replacement by more powerful, centralized, and social-redistributive regimes—Labour Party social democracy in Britain and the New and Fair Deals in the United States. However, this is to anticipate my argument, which must begin with a short sketch of Hughes’s character and his career as a lawyer-reformer.
I. The Shaping of a Personality
Charles Evans Hughes was a self-made man, the archetypal nineteenth-century Anglo-American bourgeois. The only child of a pious American Baptist mother and an immigrant Welsh minister, Hughes imbibed from his parents a religiosity, discipline, and will that is almost too much of a caricature of the Calvinist work ethic to be believed. “Have a little memorandum with a classification of rules,” the elder Hughes wrote to his fourteen-year-old son at college, “And write down our counsel under respective heads. e.g.—Rules for Health—Rules for Conduct … Rules for Religion…. Do not deviate from your systematic plan…. I mean your regular daily and hourly routine.”[11]
Although Hughes eschewed the ministerial career his parents envisioned, he internalized their godly sanctioned discipline of time and work. At college he rose “at six o’clock every morning, and study right along until nine or ten at night,” consciously using work to achieve mastery over self and the world. “I have countless desires and yearnings which I repress,” the young man confessed to his father a few years later. “That is the best cure for all mental ailments—work.”[12] Work was an obsession for the young Hughes and became the central core of his personality. As the editor of his Addresses as governor of New York noted with astonished admiration: “His work literally takes possession of him. It is consequently impossible for him to do anything he undertakes in a half-hearted or slipshod manner.”[13]
Mid-Victorian bourgeois liberalism taught that hard work brought worldly success, and it certainly did so for Hughes. Graduating near the top of his class at Brown, he took his law degree at Columbia and passed the New York State bar examination with a grade of 99.5. In 1883, he joined the firm of Chamberlain, Carter & Hornblower, which in 1888 (the year of his marriage to Carter’s daughter, Antoinette) became Carter, Hughes & Cravath.[14] As a Wall Street lawyer, Hughes committed himself completely to what Adam Smith called “the race for wealth, honour and preferments” and nearly worked himself to death. To protect his health, in 1891 he opted for the leisure and genteel poverty of academic life by assuming a professorship of law at Cornell University. Two years later, Hughes returned to Wall Street but now punctuated his exhausting work routine with yearly mountain-climbing trips to Europe and tamed his nervous energy by following a rigid daily schedule.[15]
As a lawyer-reformer, Hughes’s rigorous intellect earned him the dubious popular reputation of “a mental machine, a human icicle,” while as governor his austere self-righteousness won him the title of “Charles the Baptist.” In his years as chief justice, Hughes consciously cultivated an Olympian, god-like image, wearing a dignified white beard and resembling, in the view of one newspaper reporter, “a Victorian child’s image of Almighty God, a prophet ready to thunder forth the decree of justice.”[16] And thunder he did, his mode of argument often reflecting his personal conviction of right and wrong. As Hughes’s contemporaries and later legal scholars noted, his judicial opinions had “a strong result-orientation marked by a willingness to manipulate doctrine to reach the outcome he desired.”[17]
Yet Hughes’s deep knowledge of the law and superb analytic skills won praise from virtually every lawyer who knew him, including Felix Frankfurter, a sharp critic of the chief justice before 1937 and his colleague on the Supreme Court from 1939 to 1941. When Hughes—then in his late seventies—convened his colleagues to decide cases, Frankfurter observed, he was in complete control: “You just didn’t like to talk unless you were dead sure of your ground, because that gimlet mind was there ahead of you.” Finally, there was Hughes’s personality, totally austere and totally powerful. When he retired as Secretary of State in 1925, the British statesman Arthur Balfour remarked that Hughes was “the most dominating figure I have ever met in public life.”[18]
II. The Making of a Reformer
Hughes’s early life provides a guide to the late nineteenth-century transition from Mugwump reform to Progressivism. As a student at Brown in 1880, he enthusiastically supported the Republican ticket of Garfield and Arthur and, eight years later, joined the National Republican Club. However, until 1905, when he was forty-three, Hughes focused primarily on his legal practice, which was devoted to contracts and bankruptcies. Like many elite lawyers, Hughes doubted the wisdom of universal suffrage and condemned machine politics; an admirer of Grover Cleveland, he supported the efforts of upper class Mugwumps to promote “good government.”[19] Hughes also admired William Ewart Gladstone, the great British Liberal, probably because of Gladstone’s efforts to reform the civil service, eliminate corrupt electoral practices, and impose strict economy in government.[20]
Hughes came to public attention in 1905 as chief legal counsel for a New York State legislative committee. A Republican initiative, the committee was probing an inflated contract for public lighting between the Consolidated Gas Company and a New York City government controlled by Tammany Hall Democrats. Most politically conscious New Yorkers expected little from the investigation because many state legislators were beholden to railroads, utilities, and other corporations. Nor did Hughes inspire much confidence. An unknown lawyer (recruited when prominent figures declined to serve), he was an acquaintance of the Rockefellers, who were alleged to control the gas monopoly, and a former partner of Paul Cravath, one of the attorneys for the big utilities.[21]
However, like many new professionals around 1900, Hughes was influenced more by occupational norms than by social ties. Renowned in legal circles for tracking down concealed corporate assets in bankruptcy cases, Hughes lived up to his reputation. In three weeks of grueling oral examination of gas company executives, he established a pattern of overcapitalization, fraudulent bookkeeping, and tax evasion that gave Consolidated Gas a net profit of 100 percent on each kilowatt-hour of electricity sold. To eliminate these abuses, Hughes drafted three bills and, taking his case directly to the Republican-dominated state legislature, won their enactment. One measure reduced all gas prices by twenty percent, while another created a publicly financed Commission of Gas and Electricity with the power to set utility rates throughout the state. A third bill gave New York City the option of using its water supply to generate electricity, a venture in municipal socialism that was not pursued.[22]
This legislation suggested that Hughes accepted the legitimacy of the municipal ownership of utilities. As well-educated Americans knew, “municipal socialism” was popular in Germany and especially in England, where local governments sold eighty percent of the water, sixty percent of the electricity, and almost forty percent of the natural gas. At the same time, most influential Americans viewed municipal ownership as politically unwise in large, boss-dominated cities, so the success of Hughes’s bill in Albany was surprising. In 1898 the state assembly had ignored excessive fares and financial corruption in New York City’s transit companies and summarily dismissed an advisory referendum advocating public ownership. Invoking classical liberal doctrine, the assembly declared that “no government … should embark in a business that can be as well conducted by private enterprise.”[23]
Hughes likewise preferred private ownership of utilities but wanted them to be regulated by an independent commission. Regulation was not new in 1905 but neither was it very successful. In 1886 and again in 1896, popular agitation had won legislation setting maximum prices for natural gas in New York City. However, the utilities industry had found other ways to profit at the public’s expense and to pad the membership of the regulatory agency, the Board of Railroad Commissioners. Hughes’s new three-member commission had much more power than the Railroad Board or regulatory agencies in other states. It had the authority to inspect the books and property of power companies, regulate their issue of stocks and bonds, specify quality standards for their products, and set their rates. Moreover, the state government financed the commission, which was also independent of the legislature and its partisan imperatives.[24] Finally, if Hughes had his way, the commission would be largely autonomous of the judiciary as well. He argued that its orders should not be reviewable by the courts unless there was a clear deprivation of property rights—a controversial approach in New York, where the courts had regularly upheld the principles of laissez-faire constitutionalism.[25]
As these initiatives began to define Hughes’s political credo, they made him a popular hero, celebrated in the press as “the potent and persistent prober of the gas trust abuses.” More fame quickly followed, when Hughes was called back from a European vacation to investigate the life insurance industry.[26] Although centered in New York City and under investigation by the state legislature, life-insurance companies were nation-wide businesses. The three largest New York insurers—Mutual, Equitable, and New York Life—each had assets over $260 million and tens of thousands of middle-class policyholders: lawyers, small-scale businessmen, commercial farmers, white-collar workers, well-to-do artisans and shopkeepers—those Americans who would form the core of the Progressive Movement. Already muckraking journalists had raised the ire of these middling property owners by exposing corruption by political bosses and naked exploitation by industrial “robber barons”—attacking Rockefeller and the Standard Oil Monopoly, predatory pricing by Swift, Armour, and other members of the “beef trust,” and the pro-corporate policies of the United States Senate, which they condemned as a “Millionaires’ Club.”[27]
In the fall of 1905 Hughes added his voice to the chorus of reform. In fifty-seven public hearings, the “mental machine” subjected leading industry executives, such as George W. Perkins of New York Life, and their political friends, including United States Senator Chauncey M. Depew, to rigorous, remorseless, and devastating questioning. His probing revealed insurance policies biased against policyholders, extravagant corporate salaries, speculative investments, and political payoffs, including a large contribution to the 1904 presidential campaign of Theodore Roosevelt. To derail the lawyer-crusader, Republican bosses offered Hughes their party’s nomination for mayor of New York, a proposal he self-righteously refused. Completing the investigation, Hughes dashed off an impressive book-length report and proposed ten bills—forbidding political contributions, regulating lobbying, giving policyholders greater rights, setting rules for investment and underwriting—that became law virtually as he wrote them. This legislation moved New York (as one scholar has argued) toward a new system of political economy, “one based on regulation, administration, and planning.”[28]
Insurance reform further defined Hughes’s political outlook and underscored his professional skills. By 1900, most elite lawyers represented large corporate clients and, in their writing of contracts, handling of claims, and fashioning of business-related legislation, created the framework of corporation law. Writing regulatory legislation required only a shift in perspective. The child of middle-class parents and not yet a man of wealth, Hughes wrote rules reflecting most Americans’ fear of concentrated financial power. His report warned that giant insurance companies might extend their influence over banks and trust companies and buy up railroads and industrial enterprises, thus creating “vast combinations of capital and assets.” To avoid this outcome, Hughes won laws that prohibited insurance companies from owning corporate stock, controlling banks, or underwriting securities. The companies had to stick to their core businesses and to invest their assets in “conservative and durable investments,” such as bonds. These stringent rules shaped American financial life for the next half-century, creating a conservative corporate culture within the insurance industry and fragmenting bank ownership in the United States to a greater extent than was the case in Britain, Germany, and Japan.[29] As a middle-class reformer, Hughes instinctively favored small property, while as a deeply moral legal professional, he was coming to view property rights as contingent—as compensation for service to society—and therefore subject to state regulation.
This outlook placed Charles Evans Hughes in the mainstream of Progressive thought and catapulted him into politics. Seeking a candidate for governor who could save the scandal-tainted Republican Party from almost certain defeat at the hands of William Randolph Hearst, the press tycoon and Democratic nominee, President Theodore Roosevelt persuaded the party bosses to nominate Hughes. “He is identified in the public mind as a reformer,” Roosevelt argued, but he is “a sane and sincere reformer, who really has fought against the very evils which Hearst denounces, while yet free from any taint of demagogy.”[30]
Roosevelt’s charge of “demagogy” reflected the increasing economic divisions in American society and Hearst’s class-based political rhetoric. An extraordinarily ambitious man, the publisher of the New York Evening Journal was also an avid advocate of municipal socialism—founder of the influential Municipal Ownership League. To Roosevelt and most of New York’s haute bourgeoisie, Hearst was a dangerous radical. He heaped abuse on private utility companies and actively sought workers’ votes, proposing an alliance with the Independent Labor Party, the political wing of the Central Federated Union of New York City.[31]
Roosevelt was well aware of the working-class challenge to America’s capitalist political economy. During his governorship (from 1898 to 1900), New York workers had insisted on enforcement of existing eight-hour day legislation and campaigned for new limitations on the laissez-faire doctrine of “freedom of contract,” such as state-imposed health and safety regulations. Indeed, in 1902, the New York Workingmen’s Federation had won passage of an Employers’ Liability Act limiting the reach of the common law doctrines of “assumption of risk” and the “fellow-servant” rule and thereby encouraging an ever-increasing number of lawsuits for job-related injuries.[32] Now the Federation proposed a comprehensive system of Workers’ Compensation, another European-derived reform. Hearst’s election would give additional momentum to labor and, possibly, begin a fundamental realignment of American politics along the lines of class. “It would be a dreadful calamity if we saw this country divided into two parties,” Roosevelt confided to his attorney general, “one containing the bulk of property owners and conservative people, the other the bulk of the wage workers….”[33]
Hughes shared these concerns and, while always his own man, found it easy to play the role that Roosevelt assigned him. To reassure the haute bourgeoisie, the Republican gubernatorial candidate defended the business corporation as an instrument of American economic growth. To win over rural and middle-class voters, he attacked unscrupulous owners and managers and promised greater regulation of errant companies. And to entice workers away from Hearst, he called for an eight-hour day on public works projects, the regulation of child labor, and reorganization of the state’s labor department. In the election, Hughes carried the traditionally Republican rural areas and small towns and won the votes of urban reform-Democrats. But his margin of victory over Hearst (fifty-two percent to forty-eight percent) was provided by Tammany boss Charles Murphy, who wanted to retain the allegiance of New York City’s immigrant workers and threw the weight of his Democratic machine against the ambitious press baron.[34]
How had Charles Evans Hughes, a political unknown in 1905, become the highest elected official in New York state by the end of 1906? Chance certainly played a role, but Hughes’s energy, will, and intelligence were even more important. A lesser man would have bungled the gas and insurance investigations; or failed to secure innovative legislation; or been unable to make the transition from a good-government Mugwump to a crusader-lawyer to a reform-politician. To ponder the dynamics of Hughes’s rise is to probe the mystery of human agency: the personal qualities that account for one person’s failure and another’s success.
It is also to trace the changing character of American political liberalism. Hughes’s meteoric ascent recalled that of Grover Cleveland, another lawyer-reformer, who rose from mayor of Buffalo in 1881, to governor of New York in 1883, to president of the United States in 1885. Cleveland and Hughes had much in common: both were middle class and minister’s sons, both honest and hardworking, both courageous and self-righteous. Their moralistic politics offered an alternative to the corruption of party machines and corporate interests and transcended party boundaries: just as the Democrat Cleveland won Republican Mugwumps to his cause, so Hughes appealed to Reform Democrats. Because they rose to prominence in different political generations, there was a crucial distinction between the two New Yorkers. A traditional liberal-democrat in the tradition of Andrew Jackson and William Gladstone, Cleveland stood for the old ideal of the “negative state” and condemned excess in government, political patronage and corruption, extravagant pensions for Civil War veterans, and protective tariffs. Carried to fame by the more complex politics, muckraker journalism, and class divisions of turn-of-the-century New York, Hughes entered the governorship as somewhat more than a Gladstonian Mugwump and would soon become a socially conscious Progressive, an advocate of a “positive regulatory state.”
III. A Progressive Governor
To understand Hughes’s political agenda, it is useful to compare it to that of Liberal Party reformers in Britain, who faced an even more daunting challenge from below. Since the 1870s British Liberals had assimilated the aristocracy of labor into the world of bourgeois property and politics. This Lib-Lab alliance had assisted the “bread and butter” reformers of the Trades Union Congress to win the allegiance of the majority of unionized British workers and thwarted the efforts of the Socialist Labor Party and other radical movements. However, in the General Election of 1906—the year after William Randolph Hearst’s appeal to the working class of New York—the Labour Representation Committee within the Liberal Party dramatically changed the face of British politics by electing twenty-nine candidates (including twelve miners) to the House of Commons. With the subsequent formation of the Labour Party, “the first intentionally class-based party in capitalist society,” the Liberal Party faced the loss of its working-class supporters.[35]
To stem the political appeal of the Labour Party, blunt rising class consciousness, and address the problems of poverty and exploitation, progressive British politicians espoused a “New Liberalism.” Some of them, such as Lloyd George, were (like Hughes) educated as lawyers. Imbued with the new professional ideal of social efficiency, they were ready to break from the laissez-faire Gladstonian tradition and enact social legislation. His party, the New Liberal Winston Churchill wrote in 1908, had “become acutely conscious of the fact that political freedom, however precious, is utterly incomplete without a measure of social and economic independence.” To ensure a minimum level of wages in certain industries, New Liberals proposed a Trade Boards Bill that Churchill championed on the hustings and in the Commons. “We want to draw a line below which we will not allow persons to live and labour,” Churchill declared in support of this anti-sweating legislation. “We want to have free competition upwards; we decline to allow free competition to run downwards.” Other measures quickly followed. Between 1908 and 1911 New Liberals won the enactment of a Trade Disputes Bill, a means-tested Old Age Pensions Act, and National Insurance legislation. Then, in the so-called People’s Budget of 1909, Chancellor of the Exchequer Lloyd George imposed a series of taxes—higher death duties, a levy on coal royalties and undeveloped land, a super-tax on high incomes—and used traditional Liberal policies directed against the landed classes to fund new social welfare programs.[36]
Because class conflict in the United States was less well defined than in Britain and political corruption more prevalent, reform-minded American politicians had a different agenda. During his two terms as governor of New York from 1906 to 1910, Hughes devoted most attention to administrative efficiency and political reform. Consequently, labor historian John Buenker calls him a “structural reformer,” concerned with the mechanisms of government rather than conflicts within society. That interpretation is too narrow. In fact, Hughes’s quest for an efficient state government represented a middle-class assault on the corrupt alliance between corporate executives and party bosses; its goal was to restore political power to citizens of modest means. Moreover, like Theodore Roosevelt, Hughes recognized that the creation of a “positive” state with a purposeful bureaucracy would encourage workers to seek political power and class-based social legislation. To defuse that threat, he pursued his own version of the Lib-Lab alliance by supporting the reform initiatives of “social progressives.” Hughes’s politics was that of the propertied center; he attacked the corporation-boss alliance on the right and labor-socialist agitation on the left.[37]
Hughes first addressed political corruption. In 1906 and 1907 he secured campaign laws that limited political contributions by corporations and forced candidates to account for their receipts and expenses, legislation that was quickly copied in fifteen other states.[38] The reform-minded governor likewise expanded the number of civil service positions while refusing many patronage requests from party leaders. Hughes treated Republican politicians “with such wanton and foolish insolence,” Theodore Roosevelt complained, “that it is very difficult to get the organization people to support him.” To enact legislation opposed by party leaders, Hughes appealed directly to the public. One reporter likened his style of governance to a referendum, “with the legislators acting as the special agents of the people to carry out their definite decrees.”[39]
However, Hughes’s reservations about popular democracy, a legacy of his Mugwump past, undermined his efforts at electoral reform. He rejected the option of a direct primary in which voters could choose between declared candidates and instead proposed a complicated system of nominations by party committees. When the political bosses opposed his plan because they preferred party conventions, which they could control completely, Hughes was hamstrung—unable to mobilize popular support because he was unwilling to advocate popular power. On three occasions in 1909 and 1910, the legislature rejected Hughes’s scheme. These defeats cast a shadow over his second two-year term, soured his appetite for elected politics, and perhaps accounted for his decision in 1910 to accept an appointment to the United States Supreme Court rather than to seek the presidency in 1912.[40]
Nonetheless, Hughes recast the office of the governor and bolstered the regulatory bureaucracy. He won passage of the Moreland Act, which enabled the chief executive to oversee city and county officials as well as bureaucrats in semi-autonomous departments of the state government. This measure allowed Hughes to dismiss dozens of corrupt politicians and bureaucrats.[41] Continuing his work as a lawyer-reformer, he also secured new powers for the Public Service Commissions and fought strenuously, if not completely successfully, to protect their decisions from judicial review. This legislation won the support of many corporate executives. Thomas M. Osborne, a wealthy Democrat industrialist that Hughes appointed to head one commission, noted that “the law will be the Corporations’ best defense against dangerous legislation…. [D]emogogic appeals will lose their effectiveness; the corporations will be protected against dangerous competition and [legislative] blackmail and assured of a fair return on honest investment.” Hughes’s goal was not low rates for public utilities but “fair” rates. On two occasions the governor vetoed legislation that would have reduced railroad fares, arguing that his expert commissioners rather than the people’s elected representatives should set fares. His ideal was not government by the people but for the people. As Hughes put it, “you must have administration by administrative officers.”[42]
Hughes’s initiatives began to define modern state government. “One can distinctly see the coming of a New Statism …,” the Nation remarked when Hughes left office, “and of that movement Gov. Hughes has been a leading prophet and exponent.”[43] By “statism” the Nation meant more efficient state governments with competent civil-service bureaucracies to carry out traditional administrative tasks and regulate private business enterprises. This new administrative system would replace the government of “courts and parties” that had managed American life through private litigation and privately drafted legislation. Thus, in 1910 Hughes had instructed the comptroller to create an executive budget, beginning the process of rationalizing the state’s bureaucracy and enhancing executive authority. This initiative reached a major milestone in 1926. At the request of Democratic Governor Al Smith, Hughes chaired a State Reorganization Commission that finally won legislative approval for Smith’s plan to place the governor at the head of a rationalized state bureaucracy—bringing to fruition the administrative transformation that Hughes himself had begun.[44]
Hughes’s willingness to expand the power of the state had significant implications for New York’s working classes. Beginning with the Jacksonian constitution of 1846, the state’s political tradition embodied what historian Robert Kelley has called “The Transatlantic Persuasion,” a laissez-faire liberal ethos that celebrated individual economic opportunity, religious tolerance, and fiscal conservatism.[45] In Britain, this ideology typified Gladstonian Liberalism; in the United States, it found its home primarily in the Democratic Party. Fearing state laws that would restrict their religious and cultural practices, Irish and German Democrats championed localism and “home rule.” Indeed, in New York “negative” government had support across the political and social spectrum. To limit raids on the state treasury by business corporations, rural and small town Republicans imposed constitutional rules requiring a balanced budget and limiting taxes. Wealthy New Yorkers also welcomed a small state; they celebrated the primacy of the marketplace and the legal doctrines upon which it depended, particularly “freedom of contract.”
Broad support for limited government banished many economic issues from the realm of politics and undercut the efforts of workers to secure governmental aid. When Samuel Gompers of the American Federation of Labor proposed a public works project to assist workers during the depression of 1893, Governor Roscoe Flowers, a fiscally conservative Cleveland Democrat, replied: “In America, the people support the government; it is not the province of the government to support the people. Once recognize the principle that government must supply public works for the unemployed, and there will be no end of official paternalism.” However, by 1900 a few assemblymen and state senators from New York City (“urban liberals,” John Buenker has called them) were actively seeking government intervention in the form of worker’s compensation legislation, state regulation of factory conditions and transit company rates, and a progressive tax system. They got little support from Tammany Hall, which had its own agenda. In 1902, for example, Tammany aldermen approved a contract for a railroad tunnel under the Hudson river that, unlike most public works contracts, did not mandate an eight-hour day and payment of the “prevailing wage.” As a result, the Pennsylvania Railroad got a cheaper tunnel, and Tammany boss Charles Murphy, whose construction firms did some of the work, amassed part of his “honest-graft” fortune of two million dollars.[46]
Would Hughes do more for New York’s workers than the Tammany bosses had done? His rural and small town Republican supporters opposed activist government and, during the 1906 election campaign, Hughes had explicitly condemned “legislation for classes … working classes or any other classes.” Once in office, however, Hughes compiled a credible record as a labor reformer. He took his cues from “social progressives,” affluent men and women who, like Hughes, were committed both to social reform and social stability. As Mary Kingsbury Simichovitch of the Greenwich House settlement put it, she stood “for the principle of social idealism, which opposes all class privileges that interfere with the development of the State as a whole.” [47] Spurred on by such moral imperatives, middle-class members of New York City’s Consumers League pressed department stores to provide a minimum wage of six dollars per week and a paid vacation for their employees while the Society for the Prevention of Cruelty to Children sought state regulation of child labor.
Hughes strongly supported such—relatively limited—social reforms. He endorsed the Page-Prentice Act of 1907, which set an eight-hour day and forty-eight-hour week for factory workers—but only for those under the age of sixteen. By employing the well-established legal distinction between ordinary and hazardous work, the governor also won legislative approval for a Dangerous Trades Act that barred young workers from thirty occupations. To enforce these and other regulations, in 1907 Hughes reorganized the Department of Labor and appointed a well-qualified commissioner. Two years later, the governor created a new bureau for immigrant issues in the Department of Labor and appointed reformer Frances Kellor to head it.[48]
Although these measures were much more limited than the social insurance and minimum wage legislation enacted by New Liberals in Britain, Hughes and his allies hoped they would thwart the rise of a class-based labor party. “The true aim of the best socialism,” wrote Richard Ely, the first president of the anti-laissez-faire American Economic Association and a consultant to Hughes on labor issues, “is that general social amelioration which proposes to sacrifice no class, but to improve and elevate all classes…. What is called an ‘all classes’ socialism is stronger than a working-class socialism.”[49] Labor leaders and socialists in New York scoffed at the reforms proposed by Ely and other middle-class social progressives. “Is human nature so constituted that the workers can trust matters affecting their real liberty in the hands of ‘disinterested’ outsiders?” asked Samuel Gompers. As head of the American Federation of Labor, Gompers championed collective bargaining and mobilized union opposition to the compulsory arbitration of labor disputes advocated by the American Association for Labor Legislation (AALL), an organization founded by Ely and John R. Commons, the prominent University of Wisconsin labor historian.[50] The Central Federated Union of New York City likewise rejected the AALL’s proposals “since the working men have no part and small influence in government.” Similarly, when the Consumers League proposed minimum wage boards for women’s work (similar to those proposed in the New Liberal Trade Boards Bill in Britain), New York’s labor leaders denounced such government-sanctioned regulations as “a condition akin to slavery.”[51]
Ignoring union opposition, Hughes endorsed the reform agenda of the American Association for Labor Legislation. In 1908 he called for an official study of industrial accidents and appointed two members of the AALL to an expert commission of inquiry. After surveying British and German systems of compensation for workers’ injuries, the commission recommended a partial change in New York law. The Worker Compensation Act of 1910, which Hughes pushed through a reluctant senate, resembled the (Old Liberal) British Worker Compensation Act of 1897; it required a compulsory, employer-paid plan of compensation for workers injured in hazardous industries and a voluntary system for other workers. Alleging that the Act violated due process (because it imposed liability on a company without regard to its negligence) and fell outside the state’s “police power” over health, safety, and morals, the New York Court of Appeals struck it down in 1911.[52] The Court’s decision pleased few and outraged many. Workers condemned the decision, and it won little support among corporate lawyers, who wanted to rid the delay-ridden judicial system of injury cases, and manufacturers, who hoped to quiet labor unrest. To overturn the decision, voters quickly approved an amendment to the state’s constitution, and the legislature passed a compulsory compensation act that now covered most industrial laborers and imposed the cost on both employers and workers.[53]
Hughes’s commitment to moderate labor reform had grown during his years as chief executive. Initially opposed to “legislation for classes,” once in office he argued that “we are so interdependent that … the opportunities for labor [should be] protected and enlarged” by state action.[54] Not quite a British New Liberal, Hughes had moved well beyond the precepts of classical bourgeois liberalism. A pragmatic reformer like his mentor Theodore Roosevelt, he would seek responsible legislation to prevent social strife and a class-divided polity.
IV. Progressive Jurisprudence
As an associate justice of the Supreme Court from 1910 to 1916, Hughes remained an advocate of regulation and authored decisions that weakened the legal foundations of laissez-faire capitalism. He also mastered a new set of issues regarding the commerce clause and, in a deliberately restrained manner, wrote constitutional decisions that expanded the regulatory powers of both the state and federal governments.[55]
The respective authority of federal and state governments under the Constitution’s commerce clause had long been in dispute. In Cooley v. Board of Wardens (1852) the Court headed by Roger B. Taney had allowed the states, in the absence of federal legislation, to control those aspects of commerce that did not require a single national policy. However, more recent decisions, such as Weldon v. Missouri (1875), had curtailed the power of the states to tax or license out-of-state products or sales agents. Influenced perhaps by his experience as a state governor, Hughes authored a series of decisions that upheld state laws that affected—and, it might be argued, infringed on—congressional authority over interstate commerce. For example, invoking police power arguments, he upheld a Georgia statute requiring electric headlights on locomotives, including those engaged in interstate commerce.[56]
The most important of these federalism-related decisions were the Minnesota Rate Cases of 1913. In these, Hughes enhanced state regulation of railroads by reviving the Cooley doctrine of “concurrent powers.” To persuade his colleagues, Hughes composed a detailed and carefully argued opinion. He began with the generally accepted proposition that Minnesota and the other states had the authority, using their police powers, to regulate commerce within their bounds. He then extended this logic to include rate-regulation when such internal commerce was intermeshed with interstate traffic to towns in bordering states.[57]
Even as Hughes expanded the regulatory power of the states, he took a nationalist stance with respect to the authority of Congress over commerce, including that within the various states. Thus, in the important Shreveport Cases of 1914, Hughes sustained a decision of the Interstate Commerce Commission voiding intrastate rates set by the Railroad Commission of Texas. The Texas rates encouraged the development of Dallas and Houston by blatantly discriminating against Texas shippers who marketed their goods via Shreveport, Louisiana. In striking down these rates as an interference with interstate commerce, Hughes recognized that the logic of his argument would permit federal regulation of any action that affected commerce. Thus, it might be used to challenge the sharp distinction made in U.S. v. E. C. Knight (1895) between commerce, which was subject to federal regulation, and manufacturing, which was not. Reluctant to infringe upon precedent, he inserted language that sought to limit the decision’s reach to railroad carriers: “the agencies of interstate commerce.” By leaving Knight intact, the associate justice restricted the authority of the federal government over local businesses or factories whose raw materials or products were part of interstate commerce. Yet the logic of his argument pointed to the position he would espouse during the constitutional crisis of 1937.[58]
In cases involving the controversial issue of anti-trust regulation, the Supreme Court was divided. The faction led by John Marshall Harlan and Rufus Peckham embraced a small-producer ethic and a fully competitive market; these justices used the Sherman Act’s prohibition of “restraint of trade” to outlaw price fixing by businesses. A second group, headed by Chief Justice Edward D. White and Oliver Wendell Holmes, Jr., stood for “reasonable” market regulation, managed either by private agreements among producers (long permitted under common law) or by public administrative agencies.[59] Preferring administrative regulation to the play of market forces, Hughes usually voted with White and Holmes in anti-trust cases.
In three other sets of cases, Hughes also authored opinions that bolstered the regulatory powers of state legislatures and administrative bodies. In the first line of decisions, he gave a narrow interpretation to the “contract clause” of the United States Constitution, which prohibits states from enacting any law “impairing the obligation of contracts.” Refusing to give a literal reading to the state-granted charter of the Southern Pacific Railroad, which specified that the company could “collect and receive such tariffs … as it may prescribe, Hughes contended that this clause “necessarily implies that the charges shall be reasonable and does not detract from the power of the State … to prescribe reasonable rates.”[60]
In a second set of opinions, Hughes favored regulation over certain claims of individual rights. Thus, in Wilson v. U.S. (1911), he asserted that corporate officers could not resist a subpoena for company records by invoking the Fifth Amendment’s privilege against self-incrimination. This decision made corporations more vulnerable to prosecution by limiting the rights of individuals as delineated in Boyd v. U.S. (1886). The Court’s reasoning in Boyd had extended “the personal security of the citizen” guaranteed by the Fourth and Fifth Amendments to include an individual’s personal papers. Sensing danger to Boyd’s broad definition of individual rights, Justice McKenna dissented in Wilson, declaring that Hughes’s distinction between personal and corporate papers was “a limitation by construction” on an important “constitutional security for personal liberty.”[61] For his part, Hughes was unwilling to construe individual rights so that they frustrated the government’s efforts to achieve a legitimate regulatory goal.
In a third set of pre-1916 cases, Hughes addressed the laissez-faire doctrine of “liberty of contract.” Using this legal principle, many judges in Britain and the United States had voided, as an infringement of an individual’s property rights, legislation that regulated common law bargains made in the marketplace between employers and their workers. But in a seminal article of 1881, “Liberal Legislation and Freedom of Contract,” the Oxford political philosopher Thomas Hill Green disputed this reasoning. Green pointed out that the British Factory Acts had already limited the liberty of industrial capitalists and that legislation requiring compulsory schooling had circumscribed the freedom of parents. Extending the logic of these measures, Green adumbrated a positive and collectivist definition of liberty, a concept of “public freedom” that justified legislative oversight of economic life, especially land ownership and use. He likewise proposed legislative intervention into the terms of private bargains, to “provide against contracts being made which, from the helplessness of one of the parties to them, instead of being a security for freedom, become an instrument of disguised repression.” Picking up this line of argument and declaring “a great departure from the principles of free contract,” Gladstone created an Irish Land Court with complete control over rents and other landlord-tenant issues. Two decades later, Churchill and other New Liberals regularly invoked Green’s arguments in parliamentary debates over English legislation.[62]
Similar arguments appeared in the United States. In an article in the Columbia Law Review in 1908, Roscoe Pound of the University of Chicago mounted a vigorous attack on “mechanical jurisprudence,” the judicial practice of “rigorous logical deduction from predetermined conceptions in disregard of … the actual facts.” Citing Lochner v. New York, the controversial decision of 1905 upholding freedom of contract, Pound assailed the Supreme Court for giving “us rules which, when applied to the existing commercial and industrial situation, are wholly inadequate.” In 1909 Pound continued his assault on conceptual thinking in an essay on “Liberty of Contract.” Focusing upon Adair v. U.S. (1908), which invalidated another law regulating labor contracts, he berated the Court for not recognizing the “practical conditions of inequality.”[63]
The central problem, Pound argued, was that the legal system “exhibits too great a respect for the individual” and “too little respect for the needs of society.” Pound came to this position partly through long debates with his former colleague at the University of Nebraska, the rising sociologist Edward A. Ross.[64] “We have grown into an organic society,” Ross argued, “in which the welfare of all is at the mercy of each.” The two men continued their dialogue when Ross moved to the University of Wisconsin, where he became a colleague of Richard Ely. Influenced like Pound by German social and legal thinkers, Ely in 1903 had ascribed “the coercion of economic forces” in American society “to the unequal strength of those who make a contract.”[65]
Hughes undoubtedly was aware of these intellectual currents. There is no evidence that he was directly influenced by T. H. Green; however, he knew Ely through the AALL and had probably read Pound’s essays. Whatever the precise links, the associate justice wrote opinions that mirrored the arguments of the Oxford philosopher of “positive liberty” and the sociologically inclined Midwestern professors. “Freedom of contract is a qualified and not an absolute right …,” Hughes declared in upholding an Iowa law that voided contracts limiting the legal rights of railroad workers: The state may “interfere where the parties do not stand upon an equality….”[66] Using similar reasoning, the associate justice upheld a California law that mandated a forty-eight-hour work-week for women in various industries and allowed a federal statute to override a contract between an interstate railroad and its employees.[67] Finally, Hughes joined Justice Day’s dissent in Coppage v. Kansas (1915), a case in which a majority of the Court struck down a Kansas law forbidding “yellow dog contracts” that prevented workers from joining a union. Citing the police power, Day and Hughes argued that a state could legitimately ban such contracts.[68]
Hughes’s jurisprudence as an associate justice mirrored his activist, instrumentalist, regulatory governorship. It began from traditional liberal premises—a contractual model of economy and polity that privileged the individual’s right to work and own property. Then it “socialized” this model by asserting the authority of the government to regulate private property and market bargains through legislation and administrative tribunals. To reach this end, Hughes used two means. First, he asserted the paramount police power of the state to protect the health, safety, and morals of the community. Second, he redefined contractual principles, which had gained an ascendant position in legal thinking, so that they necessarily included regulation in the public interest. By recasting classical liberalism to include “public” as well as “private” freedom, the discipline of the state as well as that of the market, Hughes had adopted the intellectual framework of British New Liberals and American sociological jurisprudence.[69]
V. A Shift to the Right
But would Hughes, British New Liberals, and American social progressives go beyond the regulation of capitalist enterprise and undertake the redistribution of capitalist wealth? Would they enhance the power of the state to achieve this and other goals? By 1914 many British and American politicians had begun to ponder these questions; by 1920, under the pressure of World War I and the Bolshevik Revolution in Russia, they had been forced to answer them.
Charles Evans Hughes revealed the limits of his social liberalism—and of his political skills—during his contest with Woodrow Wilson for the presidency in 1916. Wilson had garnered only forty-two percent of the popular vote in 1912 and won the presidency because the Republican Party split between the progressives who supported Theodore Roosevelt and the conservatives who followed William Howard Taft. In 1916 Hughes stood at the head of a re-united Republican Party, supported by Taft and with credentials as a progressive as impressive as those of Wilson. As governor of New Jersey, Wilson had enacted reforms similar to those of Hughes in New York: corrupt practices legislation, workers’ compensation, regulation of railroads and public utilities and, going beyond Hughes, a direct primary system. Yet Wilson also espoused the laissez-faire principles of the “Transatlantic Persuasion,” supported “states’ rights” to appease southern Democrats, and opposed progressive-inspired moral legislation that threatened the drinking habits and other customs of immigrants and Catholics.
This Jacksonian Democrat individualist outlook informed the first years of Wilson’s presidency. In 1913 The New Freedom proclaimed “the ideal of absolutely free opportunity, where … men win or lose on their merits.” In Wilson’s rhetoric this individualistic precept became a societal imperative: “If America is not to have free enterprise, then she can have freedom of no sort whatsoever.” Acting on this philosophy, Wilson refused to support a federal loan scheme for farmers, declaring that it was “unwise and unjustifiable to extend the credit of the government to a single class of the community.” Reflecting his states’ rights outlook, the president also declined to support federal legislation mandating women’s suffrage and restricting child labor. Certain initiatives, such as the Federal Reserve system, signaled Wilson’s commitment to economic reform, but without the strong bureaucracy advocated by Theodore Roosevelt. Under the Federal Reserve, banks remained not only privately owned but also privately controlled—regulated not by a public bureaucracy but by a corporate-government partnership.[70]
Had Wilson maintained this philosophy of limited government, even the popular slogan “He kept us out of war” would not have kept him in the White House. Even before he was challenged by Roosevelt and the Progressive Party in the mid-term election of 1914, the president had enacted some New Liberal legislation. In an American analogue of Lloyd George’s People’s Budget of 1909, Wilson and his Democratic allies in Congress passed the Underwood Act of 1913. It cut taxes for millions of consumers by lowering protective tariffs and, to make up the resulting budget deficit, used the authority granted by the recently ratified Sixteenth Amendment to levy $100 million in taxes on the estates and incomes of wealthy Americans (the top two percent of households). Such a graduated-tax policy, historian James Kloppenberg has pointed out, was the “quintessential progressive reform” in the United States and Western Europe.[71]
During and after the mid-term election of 1914, Wilson adopted a full-fledged progressive agenda. He abandoned the Democratic approach to trust busting, which had relied on the courts to enforce the Sherman Act’s ban on any “restraint on trade”; in its place, he endorsed Roosevelt’s proposal for a Federal Trade Commission staffed by experts. Bureaucrats began to replace judges as the guardians of the public interest.[72] As the election of 1916 approached, Wilson began to endorse the demands of progressive interest groups. He sponsored federal child labor legislation, a six-million-dollar farm credit bill, and workers’ compensation for federal employees. To underline his new support of workers and trade unions (whose membership had grown from 450,000 in 1897 to 2.4 million in 1911), the president elevated the Department of Labor to cabinet rank, created a Commission on Industrial Relations, and appointed lawyer-reformer Louis Brandeis to the Supreme Court.[73] Most dramatic of all, he defied the vociferous opposition of the railroad corporations (and many of the unions) to win approval for the Adamson Act, which mandated an eight-hour day for railroad workers. “A politician, a man engaged in party contests,” Wilson remarked in a speech, “must be an opportunist … to lure the majority to your side.” “That is politics, and it is perfectly legitimate.”[74]
For one of the few times in his public life, Hughes failed to rise to the challenge. His six years on the Supreme Court had insulated the Republican candidate from the cut and thrust of the political arena. Moreover, Hughes’s moralism and commitment to rational procedures prompted him to denounce political opportunism. He condemned the Adamson Act as “the most shameful proceeding that has come to my attention since I have observed public life,” accused Wilson of knuckling under to railroad workers, and insisted that arbitration was the correct way to resolve the dispute. Because of Hughes’s opposition to the Adamson Act, his resistance to the Sixteenth (Income Tax) Amendment, and his failure to focus his campaign on progressive issues, most former leaders of the Bull Moose Party endorsed Wilson. Many farmers and industrial workers, impressed by Wilson’s initiatives, likewise deserted the Republican Party. “No other candidate for President within the memory of living man ever ran downhill so rapidly,” observed the conservative New York World.[75]
Even so, Hughes lost the election only because of his political ineptness in California. Campaigning in that state, Hughes placed himself in the hands of wealthy bankers and oilmen, crossed a union picket line, and failed to court Hiram Johnson, the progressive Republican candidate for the United States Senate. Johnson won California by nearly 300,000 votes while Hughes, deserted by organized labor and many reformers, lost California—and the presidency—by 4,000 votes. In the end, Wilson had proved himself more politically adept and more of a New Liberal than had Hughes.[76] The president had made a commitment both to federal administrative regulation, through the Federal Trade Commission, a measure that Hughes could support, and to “class legislation” in the form of graduated taxes and direct assistance to farmers and railroad workers that he could not.[77]
Yet, New Liberalism was not the wave of the future, either in Britain or in the United States. Even before World War I, relations between property-owning progressives and the working classes were fragile. “What was reform, after all,” asks a leading historian of British liberalism, “but … the ingenious expression of that middle-class philosophy which believed in resisting at once the aggressions of the rich and the pretensions of the poor?” In fact, as municipal socialism in Britain cut entrepreneurial opportunities and raised property taxes, it deepened class tensions and prompted the creation of the Association for the Protection of Property Owners and the Middle Class Defence Association.[78] The subsequent triumph of Bolshevism in Russia struck fear into the hearts of the bourgeois classes both in Europe and in the United States. Embarking for the Paris Peace Conference in 1919, Wilson warned of “a flood of ultraradicalism, that will swamp the world.”[79]
Wilson’s words struck a responsive note among British New Liberals. Following T. H. Green, they had long assumed that a strong state was compatible with—indeed, essential to—personal liberty. Now, alarmed by the growth of Britain’s national bureaucracy during the war (from 325,000 to 850,000 employees) and by strident voices within the Labour Party, they feared that state power meant state socialism—the nationalization of the railroads, coal mines, and electricity system—and a capital levy to pay for the war. Such measures would place a significant portion of private wealth in the hands of the state and create a bureaucratic absolutism.[80] The General Election of 1922 sealed the issue. The Labour Party garnered 147 seats in the House of Commons, more than the Liberals, who would never again command a majority in Parliament.
Many British social progressives moved to the right. The New Liberal C. F. G. Masterman redefined his creed as a commitment to “property, possession, competition: … a capitalism widely diffused amongst a whole community, with each man and family owning a ‘stake in the country.’” Sharing this anti-socialist ideology, leading New Liberal politicians—including Churchill and Lloyd George—joined with the Conservative Party in an anti-Labour coalition. Similar Center-Right political coalitions appeared in many European countries, breaking up the alliances between middle-class progressives and workers that had fostered a generation of social reform.[81]
The political dynamic was similar in the United States. Frightened by the nationalization of private property in Russia and a wave of labor strikes at home, the American middle classes supported the federal government’s deportation of aliens and restriction of immigration as well as the National Association of Manufacturers’ systematic attack on trade unions. Reflecting the changing political climate, the Supreme Court launched an attack on the progressive regulatory legislation enacted under Wilson. In Hammer v. Dagenhart (1918) the Court voided the federal child labor statute and in Adkins v. Children’s Hospital (1923) a minimum wage provision for women workers in the District of Columbia.[82]
As in Britain, American progressives reevaluated their creed. In 1916 presidential candidate Hughes had praised Americans as a “practical people” who had devised pragmatic ways “to exercise governmental control.” During the war, Wilson and Treasury Secretary Robert McAdoo pushed administrative pragmatism to new limits. They placed the railroads under government control, enforced price regulations, quadrupled the size of the Bureau of Internal Revenue (from 4,000 to 15,800 employees), and imposed heavy taxes on the income of wealthy Americans and the “excess profits” of corporations.[83] By 1920, Hughes was decrying the enhanced power of the national state and asking “whether constitutional government … could survive another great war….” Like Max Weber, the great German Liberal sociologist, Hughes now feared that bureaucratic power would subordinate law to its own ends, destroying individualism and political self-rule. In 1924, perhaps reacting to the socialistic proposals of Robert La Follette’s Progressive Party to nationalize the railroads and public utilities, he warned of “those insidious encroachments upon liberty which take the form of an uncontrolled administrative authority—the modern guise of an ancient tyranny, not more welcome to intelligent free men because it may bear the label of democracy.” Like other American leaders who feared popular rule—John Adams in the distant past and Supreme Court Chief Justice William Howard Taft in the present—Hughes looked for salvation to the “spirit of the common law.” Once a champion of regulatory commissions that were independent of judicial oversight, Hughes now celebrated the courts as “expert agencies of democracy expressing deliberate judgment under conditions essential to stability, and therefore in their proper action the necessary instrumentalities of progress.”[84]
Hughes’s worries were premature. Although La Follette’s Progressive Party captured seventeen percent of the popular vote in 1924, it quickly vanished. Except in a few states, there was no party-of-the-left to push the agenda of social progressivism. One reason was that the Republican administrations of the 1920s accepted the legitimacy of many progressive measures. Although Secretary of the Treasury Andrew Mellon scaled back wartime estate tax rates (from forty to twenty percent), he deliberately retained income taxes on corporate profits and wealthy individuals. From 1926 to 1930, these two income levies accounted respectively for thirty-eight percent and twenty-eight percent of federal revenue.[85] Other Republicans leaders pursued Progressive era goals of government efficiency and economic reform. As secretary of state from 1921–1925, Hughes reorganized the foreign service. Secretary of Commerce Herbert Hoover formed associations of business corporations and encouraged “welfare capitalism.” Like Churchill and Lloyd George, their newly conservative New Liberal counterparts in Britain, Hoover and Hughes supported social efficiency but eschewed bureaucratic statism. They were now committed to limited government, private property, and individual liberty—presided over by common law judges.[86]
VI. The Hughes Court: Liberty and Property
It was not surprising, therefore, that in 1930 President Hoover nominated Hughes to be the new chief justice of the United States. While Richard Friedman argues that this appointment (and that of Owen J. Roberts in 1931) signaled a decline in the Court’s conservatism, informed contemporaries did not did not see it that way. Joseph Cotton—Wall Street lawyer, Bull Moose Progressive, friend of Felix Frankfurter, and close adviser to Hoover—warned: “Anyone who takes Owen Roberts for a liberal is going to be disappointed.” Chief Justice Taft and his conservative allies on the Court likewise applauded Hughes’s appointment. Disparaging Hoover as “a Progressive just as [Justice Harlan Fiske] Stone is and just as Brandeis is and just as Holmes is,” Taft saw Hughes as a bulwark against the three “Bolsheviki” justices on the Court.[87] Taft’s estimate had much to recommend it. He correctly perceived that Hughes’s mid-life activism as a lawyer-investigator and reform governor reflected the zeitgeist of the Progressive Era rather than a deep personal commitment to reform. By temperament, Hughes was a conservative, committed from his years of legal practice to the rationalistic procedures and precedents of the common law. Taft also understood that the new chief justice was increasingly wary of the authority of the bureaucratic state and of the utopian schemes of social reformers. “We shall always have crusaders,” Hughes would tell an audience at Amherst College in 1938. “But crusaders may have more fervor than wisdom, and extreme demands may create an intolerable civil strife.” Nonetheless, Taft failed to capture the complexities of Hughes’s character and outlook. On issues of free speech, the new chief justice was a committed liberal. Moreover, because of his intense moralism and sense of social duty, Hughes was often prepared to limit individual rights for the sake of the common good. Finally, even at age sixty-eight, he was intellectually active and jurisprudentially ambitious.[88]
In his new position (as in his New York governorship), Hughes found himself in the political center. On the Left in the ideologically divided court were Taft’s “Bolsheviki”: Holmes (replaced by Benjamin Cardozo in 1932), Brandeis, and Stone. As justices of a progressive or New Liberal outlook, they usually supported the expansion of federal authority and of state regulatory legislation. On the Right were Willis Van Devanter, James McReynolds, Pierce Butler, and George Sutherland, known then to the public as “conservatives” and later, among liberals and academics, as the “Four Horsemen” of the Apocalypse, who began from laissez-faire premises and accepted New Liberal reforms only with reluctance.[89] The fate of constitutional law rested in the hands of Hoover’s two appointees: Roberts and Hughes.
In doctrinal terms, Hughes’s jurisprudence during the extended constitutional crisis of the 1930s was multifaceted. It reflected his long-held principles (Friedman), forty years of constitutional evolution (Cushman), and a commitment to “guardian review” (White). Considered analytically, as Michael Parrish has discerned, it consisted of three distinct elements: first, a dramatic elaboration of Hughes’s longstanding support for civil rights and civil liberties; second, a strong affirmation of his New Liberal outlook on regulatory issues; and, third, his resistance to New Deal nationalism and corporatism and then, in 1937, his reluctant and partial acceptance of Welfare State Liberalism.[90] Most important of all, Hughes’s chief justiceship reflected his powerful personality and his unwavering determination to control the evolution of doctrine despite the sharp ideological divisions among the justices. As Stone saw it, the result was a series of compromises by Hughes that were intellectually inconsistent and undermined the work of the Court.[91]
Civil Rights and Civil Liberties
Throughout his public career, Hughes consistently advocated civil rights for African-Americans and civil liberties for dissenters. Early in the century he defied social convention by escorting Booker T. Washington at a public dinner, and his initial judicial opinions challenged, in a meliorist fashion, the social customs of the Jim Crow regime. In 1914 Hughes gave a literal interpretation to the “separate but equal” doctrine of Plessy v. Ferguson (1896) by insisting, in McCabe v. Atchinson, Topeka, and Santa Fe Road, that African-Americans receive “equal treatment” as railroad passengers. As chief justice, Hughes wrote for the Court in Gaines v. Canada (1938), which forced the state of Missouri either to admit a black student to its law school or to provide equal facilities.[92] On two other occasions Hughes wrote important constitutional decisions affecting African-Americans. In Bailey v. Alabama (1911) he refused to accept the purported purpose of a statute governing contracts for personal service as regulating fraud, since “its natural and inevitable effect” was to impose criminal penalties for refusing to perform a work contract and thereby created a system of debt peonage akin to slavery. Subsequently, in Norris v. Alabama (1935) he pointed to the exclusion of blacks from jury duty and used the Fourteenth Amendment’s guarantee of “equal protection” to reverse the rape conviction of one of the Scottsboro boys.[93]
Hughes’s approach to issues of free speech, like his views on race, stemmed primarily from his rigorous religious upbringing. Proud of “the noble tradition of the Baptists as the protagonists in the struggle for religious liberty,” Hughes defended political dissent. In 1920, he mobilized New York City’s Bar Association to protest the expulsion of five Socialists from the state assembly. As chief justice, he quickly encouraged the Court to expand the limits of free speech. His opinion in Stromberg v. California (1931) struck down as “vague and indefinite” a law prohibiting the raising of a red flag, while in Near v. Minnesota (1931) he voided on similar grounds a Minnesota statute banning newspapers that were “malicious, scandalous and defamatory.”[94] That same year he dissented vigorously when the Court upheld the denial of naturalization to two conscientious objectors.[95] As early as 1934, one commentator concluded that Hughes had shown a “greater fondness for the Bill of Rights than any Chief Justice this country ever had.” By the end of his tenure in 1941, the Court had silently “incorporated” the entire First Amendment into the Fourteenth Amendment.[96]
Hughes’s important opinions on civil liberties are often cited but are rarely quoted. As a reform governor, Hughes had praised the politician “who demands the facts, who is willing to stand or fall by the facts”; as a judge, he reaffirmed this empiricist outlook and emphasized “the necessity of carefully scrutinizing the circumstances of each case.” Consequently, Hughes usually made “new law” not by overruling landmark cases with a eloquent statement of principle but rather by deftly arguing, on factual grounds, that an alternative line of precedents applied—a piecemeal approach to legal change that fostered what one commentator called “the controlled evolution of doctrine.”[97] This emphasis on precedent and an intensely logical prose style account in part for the strange death of Hughes’s reputation; although his judicial opinions changed the law, they did not move the heart or shape the public mind.
Thus, it was Justice Cardozo who penned the most elegant opinions of the 1930s and Justice Stone who, in United States v. Carolene Products Co. (1938), articulated a doctrine-based rationale for the rights-conscious jurisprudence of the Hughes Court. Indeed, the provenance of the now-famous footnote four in Carolene reveals Hughes’s reluctance to extend constitutional protections beyond those for free speech. As explained by Stone’s law clerk Louis Lusky, the page proofs of Stone’s footnote that circulated among the justices made no mention of the first ten amendments to the Constitution. Rather, the note focused on the political dynamics of American life—suggesting more stringent standards of judicial review for state legislation that restricted corrective political processes, limited the right to vote, and discriminated against “discrete and insular minorities.” Angered by conservative justices who used the due process and equal protection clauses of the Fourteenth Amendment “as a means of destroying [regulatory] statutes,” Stone wanted to use that protean amendment to set a liberal agenda for the Court.[98]
Responding to Stone’s draft, Hughes suggested that a different set of rights—those of freedom of speech and the press—were the ones most deserving of judicial attention because they were mentioned in the Constitution. This proposal was at once helpful, because it grounded some of Stone’s agenda in existing fundamental law, and limiting, because it drastically narrowed Stone’s vision for the Court. Rather than accept this limitation, Stone added a new first paragraph calling attention to legislative acts that infringed on a “specific provision of the Constitution, such as those of the first ten amendments,” while retaining his political- and minority-oriented proposals for “more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” as paragraphs two and three. Having won a modification in Stone’s handiwork, the chief justice concurred in both the result of the Carolene case (upholding the constitutionality of a federal law prohibiting interstate commerce in adulterated milk) and Stone’s opinion. However, Hughes continued to adhere to old liberal values (both Classical and Progressive) by insisting that economic rights were as important as civil rights and that judicial intervention under due process “applies when rights either of person or of property are protected by constitutional restrictions.”[99]
Hughes’s support for rights—economic or personal—was always qualified by his respect for the legitimately imposed demands of the community. During World War I Hughes advocated conscription (an issue that tore apart the British Liberal Party) and served as a member of New York City’s draft board. On the eve of World War II, the chief justice took a similar communitarian stance in Minersville School District v. Gobitis (1940) by voting to uphold Pennsylvania officials who compelled school children to salute the American flag in violation of their religious beliefs.[100]
Along with most Protestant Progressives, Hughes believed also that society might legitimately impose moral rules on its members. As governor of New York in 1908, he insisted that the legislature restrict wagers on horse racing and thereby enforce a long-ignored anti-gambling amendment to the state’s constitution. Hughes’s Protestant moralism likewise determined his response to the Eighteenth (Prohibition) Amendment to the U.S. Constitution. Rejecting a lucrative offer to serve as counsel for the brewing industry, Hughes filed an amicus curiae brief supporting prohibition on behalf of twenty-one state attorneys general.[101]
Economic Regulation: Continuity
This dialectic between liberty and community likewise informed Hughes’s view of regulatory issues. During the Progressive Era Hughes had defined a coherent New Liberal position, supporting “freedom of opportunity” for individuals on the one hand and the “police power” of the state on the other. As chief justice, Hughes’s communitarian side came to the fore in the controversial Minnesota Moratorium Cases (1934). Here his majority opinion upheld a carefully drawn state law permitting courts to postpone mortgage foreclosures. As Sutherland pointed out in a powerful dissent, the Minnesota statute seemed clearly to infringe both the letter and spirit of the “contract clause” of the Constitution. The Philadelphia Convention of 1787 had devised that clause precisely to prohibit such “stay laws,” which had been enacted by state legislatures during the depressed times of the 1780s.[102]
Hughes summarily dismissed the argument based on the Founders’ intent, declaring that “the great clauses of the Constitution” could not automatically “be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed on them.”[103] Instead, he maintained that state governments had the inherent capacity “to protect their fundamental interests,” which included the economic foundation of the social order. Here Hughes challenged the primacy of the private property rights that, as Sunstein argues, were so deeply imbedded in the culture and the constitution that they inevitably formed the baseline for legal analysis.[104] The chief justice defended his position by arguing that mortgage contracts were subject to “the reasonable exercise of the protective power of the state,” which had to be “read into all contracts as a postulate of the legal order.” This argument reiterated Hughes’s Progressive Era decisions on contract cases: Holding a socialized, New Liberal view of contract law, he insisted that private bargains were subject to the calculus of the public interest and must be construed so as “to safeguard the economic structure upon which the good of all depends.”[105] Hughes’s support for other regulatory measures likewise reflected his activist, pro-state stance during the Progressive era. In O’Gorman & Young, Inc. v. Hartford Fire Insurance Co. (1931), he voted with the three progressive justices and Roberts to uphold a New Jersey law regulating the commissions paid by insurance companies to their agents; a quarter of a century before (as Brandeis noted in his opinion for the majority), lawyer-reformer Hughes had drafted similar legislation for life insurance agents. Three years later, Hughes and Roberts again joined Stone, Brandeis, and Cardozo to uphold a New York law that set the price of milk. Roberts’s opinion in Nebbia v. New York (1934) ignored the formalist distinction that restricted regulation to businesses “affected with a public interest.” Challenging the doctrine of substantive due process, he declared that “neither property rights nor contract rights are absolute” and that a state was “free to adopt whatever economic policy may reasonably be deemed to promote public welfare.”[106] Even as Justice McReynolds lamented to former Solicitor General James M. Beck that Nebbia marked “the end of the constitution as you and I regarded it,” the chief justice saw it as an appropriate response to legislation that was neither arbitrary nor confiscatory. “Those who find fault with the multiplicity of laws and with vexatious interferences” with their business activity, Hughes had written in The Supreme Court of the United States (1928), “normally must address themselves to the legislature, and not to the courts; they have their remedy at the ballot box.”[107]
If Hughes, like most New Liberals, granted governments the power to regulate private bargains, the grant was not plenary; individuals still had rights. In particular, Hughes consistently exalted the classical liberal principles of the “freedom of opportunity” and “freedom from confiscation.” In 1915 he had written for the Court in voiding an Arizona law that, in certain circumstances, limited employment to United States citizens. “The right to work for a living …,” he had declared, “is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” As chief justice, Hughes voted with Brandeis and the conservatives to uphold this perspective in New State Ice Co. v. Liebman (1932), which struck down an Oklahoma law that limited the number of icehouses in the state. In Hughes’s hierarchy of values, individual opportunity ranked higher than regulation, while the latter trumped corporate enterprise. Thus, he usually voted to uphold state laws that imposed higher taxes on chain stores than on the small businesses that competed with them.[108]
Hughes also zealously protected the individual’s right to own and bequeath property. While governor of New York he had opposed passage of the Sixteenth (income tax) Amendment. He worried that the amendment might allow Congress to tax the interest on state and municipal securities and thereby “make the performance of the functions of local government a matter of federal grace.” His opposition also reflected fear of confiscatory tax policies. “He is crazy about ‘confiscation,’” Justice Brandeis lamented at one point, ” … and that blinds his judgment.”[109] Confiscation often arose as an issue in the administrative proceedings of state regulatory commissions. Early in his public career Hughes had worked out a nuanced position. On the one hand, he had supported the autonomy of “expert” commissions to prescribe reasonable regulatory measures. “Pure and efficient administration is the foundation of social progress,” Hughes had declared in 1907. Judicial oversight was good neither for a commission, which would become “simply a board to take evidence,” nor for the reputation of the judiciary: “With the courts giving a series of decisions … hostile to what the public believes,” he had prophetically suggested, “you will turn upon our courts … hostile and perhaps violent criticism.” On the other hand, Hughes had insisted that judicial intervention was imperative “if it be claimed that the action of the Legislature or a commission in fixing a rate operates as … a deprivation of property” or if “there is an assumption of arbitrary power not related to public convenience.”[110] As an associate justice, Hughes had written this distinction between regulation and confiscation into the judicial law of the land. In 1913, he curtly dismissed an unsupported claim of confiscation by railroad companies in Southern Pacific Company v. Campbell, but devoted forty pages in the Minnesota Rate Cases to a painstaking analysis of the more plausible financial claims made by rail carriers, and upheld one of them.[111]
Viewed in retrospect, Hughes’s position on administrative agencies mirrored almost exactly that of Roscoe Pound. Pound had first come to national professional attention—and notoriety—in 1906, when his address at the Annual Meeting of the American Bar Association criticized the cumbersome workings of the common law courts and defended the expansion of administrative tribunals. However, in a subsequent essay, “Justice According to Law” (1913), Pound underlined his preference for a judicial system based on common law courts. He celebrated the demise of “legislative justice” (such as that exercised by the legislator-dominated New York Court of Errors before 1846) because it had allowed “purely partisan or political motives as grounds of decision.” His estimate of “executive,” or administrative, justice was more complex. Pound acknowledged the usefulness of regulatory commissions in the management of public utilities, workers’ compensation, and other governmental tasks requiring specialized knowledge. However, he extolled the superior merits of “legal justice”: a common law system managed by “independent judges” and “governed by legal reason rather than by interest or external pressure and watched narrowly by a learned profession.”[112]
For Hughes, the experience of World War I fostered a preference for Pound’s common law tribunals. Addressing the New York State Bar Association before American entry into the war, Hughes had argued that “the intricate situations created by expanding enterprise” called for administrative agencies staffed by disinterested experts.[113] By the 1920s, the collectivist policies and bureaucratic growth that accompanied the war caused Hughes to fear administrative power. “Bureaucracy was repulsive to him,” the solicitor general of the State Department recalled, “and to his mind it assumed a hideous form whenever it enabled or encouraged administrative officers to invade the right of the individual to law itself.”[114]
For Hughes, as for Pound, the proliferation of administrative agencies during the New Deal raised the specter of a bureaucratic despotism. In 1938, as chair of the American Bar Association’s Special Committee on Administrative Law, Pound authored a report that cautioned against the “supplanting of a traditional judicial regime by an administrative regime.” In hyperbolic prose, it warned against Soviet-style “administrative absolutism” and championed an elaborate system of judicial review.[115] Using more moderate language, Hughes likewise insisted on judicial oversight. In Crowell v. Benson (1932) he wrote for the Court (over a powerful dissent by Brandeis, joined by Stone and Roberts) upholding a trial judge who disregarded an administrative finding and held a de novo trial. Hughes’s opinion, Frankfurter told Stone, “is the result of a very jejune, unreal conception of administrative law.” Four years later, in St. Joseph Stockyards Co. v. United States (1936), Hughes reiterated his long-held position that independent judicial determination of rates and regulations was a constitutional requirement where “a large capital investment is involved and the main issue is as to alleged confiscation of that investment.”[116] In other rulings the chief justice asserted that administrative proceedings should conform to judicial practice. To do less, Hughes asserted, would be “to establish a government of a bureaucratic character alien to our system.” The proper administrative authority, the chief justice now concluded, echoing Pound, “must be the spirit of the just judge.”[117]
VII. Hughes and the New Deal State
Despite this retreat on regulation, Hughes’s first years at the head of the Court raised the prospect of an early end to the Lochner era. Writing to Frankfurter in June 1931, Stone noted that Holmes and Brandeis “made a remarkable record, going through the year without a single dissenting opinion.” Stone predicted that he would soon join them, “on the assumption that most times we will be in the majority and, if not, the Chief will take the laboring oar” and write the dissent.[118] By 1932 Hughes’s stance in Crowell v. Benson and Miller v. Standard Nut undermined this optimism.[119] Both cases involved property rights and placed governmental agencies in conflict with private individuals. In such cases, Hughes, Roberts, and the Four Horsemen stood as a solid phalanx. “I am only a voice crying out in the wilderness,” Stone lamented a few years later, as he (and Brandeis and Cardozo) dissented when Sutherland disinterred the privileges and immunities clause of the Fourteenth Amendment to restrain Vermont from taxing certain out-of-state income of its citizens. “The tendency to press constitutional restrictions to their limit and beyond gives me serious apprehension [of the] … capacity of the Court to render useful service.”[120]
By 1935 Hughes had also become alarmed by the stridency and intransigence of the Four Horsemen. In January, the chief justice joined Stone (and Cardozo and Brandeis) in dissent when Sutherland and his allies ignored three venerable common law rules to allow a new trial in a Massachusetts insurance case.[121] Then, in March, Hughes authored a stinging dissent in Railroad Retirement Board v. Alton, in which the conservatives on the Court not only invalidated the poorly drawn Railroad Retirement Act of 1934 but also stated that Congress lacked the authority to enact any such legislation. That conclusion, Hughes declared, was a “departure from sound principles and places an unwarranted limitation upon the commerce clause of the Constitution.” Pointing out that the Court had long sanctioned workers’ compensation plans for railroad employees, Hughes demanded to know what “sound distinction, from a constitutional standpoint, is there between compelling reasonable compensation for those injured without any fault of the employer, and requiring a fair allowance for those who practically give their lives to the service.”[122] Since his days as a New Liberal, Hughes had held an expansive view of governmental power under the commerce clause. As an associate justice in 1914, he had argued in the Shreveport Cases that Congress possessed “the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end.”[123] In his last year as chief justice a quarter of a century later, he still adhered to that position, voting (in dissent) to nullify a New York City sales tax on out-of-state coal and to uphold a heavy fine on a striking labor union for interfering with interstate commerce.[124]
Hughes’s New Liberal approach to governmental regulatory authority likewise shaped his response in early 1936 to the Court’s backward-looking decision in Morehead v. New York ex rel. Tipaldo. Roberts had again joined the Four Horsemen, this time to strike down a New York minimum wage statute for women as a violation of freedom of contract. In response, Hughes penned one of his rare written dissents. The majority relied for precedent on the well-known case of Adkins v. Children’s Hospital (1923), which had invalidated somewhat similar congressional legislation for the District of Columbia. Perhaps hoping to persuade Roberts to desert the conservatives, the chief justice had carefully (and plausibly) distinguished the New York law from that passed by Congress.[125] What Hughes failed to accomplish with his dissent, either the widespread public outcry against the Tipaldo decision or the results of the 1936 election did. When minimum wage legislation again came before the Court in December in West Coast Hotel v. Parrish, Roberts concurred in Hughes’s opinion, which not only upheld Washington State’s minimum wage law but also overruled Adkins.
As Hughes read the decision in West Coast Hotel, Robert Jackson recalled, his voice “was one of triumph. He was reversing his Court, but not himself.” The chief justice simply dusted off the New Liberal arguments he had used as an associate justice in 1910 and 1915 to uphold California legislation limiting women’s working hours and an Iowa law regulating liability for industrial injuries. Then he had argued: “Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.” Now he declared that the “Constitution does not recognize an absolute and uncontrollable liberty … the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people.”[126] As Sunstein suggests, Hughes’s decision in West Coast Hotel “rejected the theoretical foundations of the Lochner period,” which privileged private rights. In fact, as an associate justice, Hughes had adumbrated a socially conscious baseline for the Court a quarter of a century before, at the height of the New Liberalism.[127]
With respect to the issues involved in these Progressive era “Old Deal” cases, the evolutionary thesis advanced by Barry Cushman is correct. For a generation Hughes and other jurists and politicians had confronted these questions—the authority of state legislatures and expert commissions to regulate public utilities and private businesses—and resolved many of them along New Liberal lines. Then, in the late 1930s they carried New Liberal regulatory doctrines to their logical conclusion, ending the laissez-faire regime of substantive economic due process.
Economic Regulation: Discontinuities
The “New Deal” was different because it proposed a dramatic expansion in the size and functions of the national government. As a regime of national economic planning and bureaucratic social welfare, it raised a host of new political and constitutional questions. Did expansive federal legislation violate the Tenth Amendment, which reserved non-delegated powers to the states and the people? Did the General Welfare clause contain taxing authority and allow aid to farmers and a federal old-age pension system? Was the regulation of local labor disputes within the purview of the commerce clause? Suffusing all of these issues was the looming specter of redistributive class politics—such as taxing urban consumers to subsidize farmers—and a centralized, authoritarian direction of many aspects of American life. As early as 1932 Hughes brooded about “new social schemes resting upon coercion by a class.”[128]
Faced with these new issues, active politicians as well as cloistered jurists felt the ground fall away beneath their feet. “Something has taken place in this country,” complained Al Smith, the champion of state-level progressive regulation and bureaucratic efficiency: “There is some certain kind of foreign ‘ism’ crawling over this country. What it is I don’t know…. But I know it is here.” Herbert Hoover knew what it was, and he did not like it: The corporatist National Industrial Recovery Administration was essentially a “state-controlled or state-directed social or economic system,” and that, the ex-president declared, is “tyranny, not liberalism.” Wilsonian George Creel had also seen Smith’s beast and given it a name: “Statism”—a vast national bureaucracy that would stifle individual liberty and creativity.[129]
Initially, the Supreme Court gave the New Deal’s Statism a negative reception. Opposition to the National Industrial Recovery Act (NIRA) of 1933 by the conservative justices was hardly surprising and that by the chief justice only slightly less so. The “New Statism” that Hughes championed during the Progressive Era focused primarily on the reform of state and municipal governments and their policing of private businesses. Secondarily, he supported national regulation through the commerce clause with enforcement handled mainly through the judicial system. He was genuinely alarmed by the centralized structure of the NIRA and its comprehensive administrative codes.[130] Even the liberals—Stone, Brandeis, and Cardozo—opposed the major role given to private trade associations in the NIRA and joined their colleagues in striking down that corporatist regime as well as New Deal measures that extended national power.
The judicial onslaught came in 1935 and may be quickly summarized—keeping in mind that these anti-New Deal decisions may have encouraged Roberts’s move to the right between his rejection of substantive due process in Nebbia in early 1934 and his traditionalist votes in Alton and Tipaldo in mid-1935 and 1936.[131] In January, the Court in Panama Refining Co. v. Ryan held unconstitutional a provision of the NIRA that authorized the president to bar “hot oil” (oil in excess of a state’s quota) from interstate commerce. Writing for the eight-to-one majority (Cardozo dissenting), Hughes argued that Congress had delegated too much authority to the president. In May, the Court unanimously voided the NIRA in Schechter Poultry Corp. v. United States. Again writing for the Court, Hughes reiterated the Progressive Era understanding that the commerce clause could not reach various activities within the states and again cited excess delegation; Cardozo concurred and condemned the power given to trade groups to establish industry-wide regulatory codes as “delegation running riot.”[132] As political philosopher Hadley Arkes has argued, what troubled the justices (but what they never clearly articulated) was that delegation subverted the process of representative self-government. Because Congress itself did not determine what was illegal, it prevented affected citizens and interest groups from challenging the legislation in a political forum; instead, they had to seek satisfaction from a NIRA trade group or an administrative agency. For Cardozo and Hughes as for the Four Horsemen, such an outcome “was a vice that violated, profoundly, their sense of constitutional propriety.”[133]
The unanimity of the anti-NIRA decisions of 1935 was short-lived. The Court divided not only over Progressive Era issues in Alton and Tipaldo but also over New Deal legislation that expanded national authority, such as the Agricultural Adjustment Act. Hughes probably doubted the constitutionality of some aspects of the AAA but was unwilling to take a definitive stand. Thus, he chose not to write the decision himself (as in Panama and Schechter) or to entrust it to one of the conservatives, who might—as in Alton—take an extreme position. Rather, he assigned it to Roberts and then plied him with suggestions. Roberts’s opinion assailed the AAA as unconstitutional on two grounds. He suggested that the AAA was a coercive regulation rather than a tax measure, a position that Hughes accepted, and that the federal government lacked authority over agriculture, a view that Hughes disputed. In 1920, while serving as counsel for a private bond house, the Federal Land Bank of Wichita, Hughes had strongly defended the constitutionality of the Federal Farm Loan Acts of 1916 and 1918. He argued that the General Welfare clause contained an independent grant of taxing power, as Alexander Hamilton and Joseph Story had maintained. If the Court accepted that proposition, which James Madison had disputed, then the federal government could use its taxing power to intervene in the many areas of American life where it lacked explicitly delegated authority.[134]
In 1936, this issue was unresolved, because the Taft Court had upheld the Farm Loan Act without addressing the General Welfare clause.[135] But it was not forgotten. The government’s argument in Butler contained passages from Hughes’s earlier brief (illustrating Cushman’s point about the increasing astuteness of New Deal lawyers). Moreover, according to Felix Frankfurter, the chief justice persuaded Roberts to endorse the Hamilton-Story view (as dictum) in his Butler opinion. This maneuvering may have assured Roberts of the vote of the chief justice to void the AAA, while winning for Hughes an endorsement in a majority opinion of this controversial doctrinal position.[136]
Such maneuvers reflected Hughes’s determination to lead his divided court and to oversee the evolution of constitutional doctrine. This goal influenced not only the assignment of opinions but also the votes of the chief justice.[137] Hughes habitually voted with the majority. In his eleven years as chief justice, he wrote only eleven dissents and consistently registered fewer minority votes than his colleagues did. This determination to be on the winning side—and therefore have a voice in the opinion—often induced the chief justice to trade his vote in return for changes in wording or in the doctrinal reach of the majority’s opinion, as in Butler. (Indeed, it was the Four Horsemen’s refusal to limit the reach of Alton that troubled Hughes more than the decision itself.[138]) However, Hughes paid a price for these tactics. Most of the concessions he won were cosmetic and his maneuvering exposed him to charges of intellectual inconsistency and deviousness. When the conservative-led majority in the Great Northern Railroad tax case rejected “the settled doctrine of the Court itself and in complete disregard of economic views invoked less than a year ago,” Frankfurter was perplexed. “I just cannot believe,” he wrote to Stone (who dissented) “that Charles Evans Hughes, the man, and not the Chief Justice, would not completely agree with your views.”[139]
Hughes’s subordination of doctrine to his political agenda appears, with startling clarity, in a series of little studied cases. The issue at stake was the immunity of state government lessees and other contractors from federal income and corporate taxes—an important new concern in the 1920s and 1930s. There was widespread agreement among the justices that federalism protected state and municipal governments, bonds, and employees from federal taxation. Moreover, there was precedent, in Gillespie v. Oklahoma (1922), for providing immunity against taxation to private firms acting as government agents.[140] In 1932, the Court revisited this issue in Burnet v. Coronado Oil. Writing for the Court, Justice McReynolds argued that Oklahoma’s ownership of oil lands and its use of the revenue for state educational purposes protected Coronado, its lessee, from federal taxation. Stone dissented (joined by Brandeis, Cardozo and Roberts) on the grounds that the state had essentially divested itself of the oil through the lease and thereby exposed Coronado to federal taxation. In a separate dissent by Brandeis, the three liberals called for the overruling of Gillespie and an end to the use of governmental immunity to protect “vast private incomes” from taxation.[141]
Hughes rejected both propositions. Long worried about the declining powers of state governments and “confiscation” of property through taxation, he usually voted with the conservatives to extend immunity to a variety of state instrumentalities. Much to Stone’s chagrin, Hughes held firmly to this position until early in 1938. Then, faced imminently with a court dominated by Roosevelt’s appointees, the chief justice suddenly reversed course. In February 1938 he assigned the case of Helvering v. Mountain Producers Corporation to himself and announced to Stone his “conclusion that it is absolutely necessary to deal with [the] Gillespie and Coronado cases…. [They] should be overruled and I have written accordingly.” The performance was vintage Hughes. He would vote with the emergent majority but, by authoring the opinion, would control the evolution of doctrine.[142]
Hughes’s personal proclivities—and ideological preferences—are key to understanding his behavior during the crisis year of 1937. When the Court had unanimously struck down the NIRA and the Frazier-Lemke debtor-relief act on the same day in 1935, President Roosevelt publicly accused it of being stuck in “the horse and buggy days.” By 1936, Roosevelt had grown more distressed over the Court’s decisions. He now mused privately about “the effect packing had on the British House of Lords,” the successful threat used by the New Liberal-dominated ministry of 1911 to deter the Conservative-dominated peerage from vetoing its reform legislation.[143] In 1936 in America, as in 1911 in Britain, it appeared to the president that to establish a new mode of liberalism required a basic institutional change.
Hughes sensed the growing hostility to the Court but could do little about it. Both for doctrinal and court-management reasons, he concurred with the position of Roberts and the conservatives (in Carter v. Carter Coal Co.) that the commerce power could not sustain the federal labor regulations mandated by the Guffey Coal Act of 1935. At that point, May 1936, the chief justice was both unable and unwilling to move beyond New Liberalism to New Deal statism. Unable, because the Court was deeply split, not only over Guffey but also over the AAA and the New York minimum wage case. Unwilling, because he was not convinced that a powerful national bureaucratic state commanded either constitutional legitimacy or broad popular support. Hughes therefore defined a middle ground for himself in a concurring opinion in Carter (arguing that the commerce clause allowed Congress to set interstate coal prices—but not local wage regulations) and sought to deflect criticism from the Court by challenging voters to enact a constitutional amendment that would “give Congress the power to regulate industries within the State.” “It is not for the Court to amend the Constitution by judicial decision,” he declared.[144]
But that, of course, is what the Hughes Court began to do in the spring of 1937 through expansive interpretations of the Commerce and General Welfare clauses. This momentous transition was the result of a confluence of factors: the long erosion of laissez-faire constitutionalism, the year-long crisis within the Court during 1936, Roosevelt’s announcement of the court-packing plan in early 1937, and the president’s overwhelming victory in the November 1936 election. In 1928 Hughes had urged those opposed to “vexatious interferences” by government to seek “their remedy at the ballot box.” As William E. Leuchtenburg has shown, Roosevelt’s opponents had consciously made the election into a referendum on the New Deal—and they had lost badly.[145] Here—by proxy as it were—was the expression of the national will on constitutional powers that Hughes had demanded in his Carter opinion.[146]
More immediately, it showed Hughes the handwriting on the wall—the likely retirement of the Four Horsemen during FDR’s second term and their replacement by justices willing to expand the reach of the national government. Ever a man of the middle, Hughes now maneuvered to defeat the court-packing plan and to set limits on the imminent constitutional revolution. The first result of his efforts was the triumph of judicial doctrines adumbrated during the Progressive era.[147] Hughes had come of political and judicial age during that earlier moment of reform and in April 1937 drew upon his New Liberal reasoning in the Shreveport Cases (1914) to uphold the extensive federal regulation of wages and working conditions mandated by the National Labor Relations Act.[148] In NLRB v. Jones & Laughlin Steel Corp., the chief justice declared that the commerce power could be used to regulate the “industrial labor relations” of local factories “when industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities.”[149]
Whatever the New Liberal antecedents, Hughes’s decision to support a revolutionary expansion in the reach of the commerce clause carried him on to new constitutional ground (and, as two written dissents in 1940 indicate, farther than he wished to go).[150] Hughes’s new agenda also assisted the liberal jurists to implement their vision of a powerful national state. In his private opinion on the Farm Loan Acts of 1916 and 1918 and his maneuvering in Butler, Hughes had pushed forward an expansive view of the General Welfare clause. In May 1937 in Helvering v. Davis, Cardozo used that clause to uphold the pension provisions of the Social Security Act. Citing Roberts’s dictum in Butler, Cardozo declared that Hamilton’s and Story’s (and Hughes’s) broad interpretation of the General Welfare clause “is now settled by decision.”[151]
Hughes not only laid the doctrinal basis for the decision and voted for it but also, and most significantly, determined that Helvering v. Davis came before the Supreme Court. The liberals and Roberts would have dismissed the appeal by the company on procedural grounds. However, as part of his campaign against Roosevelt’s court-packing plan, Hughes wanted an affirmative decision on the constitutionality of this important New Deal statute and so voted with the Four Horsemen (who hoped for a negative outcome) to try the case on its merits. “I wonder how much the historian of the future will convey the performances of this term …,” Frankfurter mused in June 1937. “If he knows as much about procedural problems as he should [,] he will find a perfect searchlight upon the Chief’s mentality and tactic in his vote to take jurisdiction in the Davis Pension case.” The Harvard professor found little to praise in such stratagems or in Hughes’s devious maneuverings. “When I see how a synthetic halo is being fitted upon the head of one of the most politically calculating of men,” he told Stone, “it makes me in the sanctified language of the old gentleman [Holmes] ‘puke.’ … I wonder how long [the Court] … can survive observations of the doings and connivings, particularly of the Chief, during the last few years.” [152]
Hughes’s triumph was short-lived. As Friedman has pointed out, a flock of Roosevelt appointees would shortly extend the scope of the constitutional revolution. These expansive decisions elicited from Hughes a series of dissents and concurrences that sought in vain to limit the New Deal enthusiasms of his new colleagues. At least temporarily, History was on the side of Roosevelt and the New Deal, and that is yet another reason why Hughes and his New Liberal vision have not lived on in the public mind.[153]
The national bureaucratic regime created by the New Deal enhanced the General Welfare by greatly expanding the power of the federal government and imposing new rules on the society. But there were costs. The Wagner Act forced corporations to engage in collective bargaining and placed restrictive mandates on individual workers and trade unions; as Samuel Gompers had feared, government intervention subordinated the interests of labor to that of industrial peace. Likewise, the Social Security Act provided individuals with old age and unemployment insurance but also carried the federal government deep into the financial and personal lives of most Americans. As historian Alan Dawley has argued, the Act instigated a “mercantilist regulation of family life not seen since the eighteenth century.” And the new federal tax system, in its regressive levies first on processed agricultural commodities and then as a social security payroll tax, dipped into the pockets of ordinary citizens.[154]
In a prophetic work of 1912, the British political philosopher Hilaire Belloc had isolated the fundamental contradiction within liberal capitalist society: a moral equality of rights and a profound inequality of property. Belloc, an outspoken critic of the New Liberalism, outlined three possible outcomes. The conflict between rights and wealth might produce a wider and more equal distribution of property, what he called the “Distributive State.” Or it might result in the seizure of private productive capital, and create a “Collectivist State.” Recognizing the success of the political alliance between property-owning New Liberals and Labour proletarians, Belloc thought that a third scenario was the most likely: a process of empirical reform that “reduces freedom by inches [through] … a welter of anarchic restrictions.” In this “Servile State,” the mass of citizens (as a later commentator put it) “would be constrained by law to labour for the profit of a minority, but as the reward of such constraint, should enjoy a security they did not possess under pure capitalism.”[155]
Charles Evans Hughes was just such a practical, empirical reformer and, like Belloc, sensed both the allure and the threat of a national bureaucratic order. But for myriad reasons—the smaller impact of World War I on American society, a less rigid system of class relations, and the emphasis of American progressivism on regulation rather than redistribution—Hughes did not have to confront the reality of bureaucratic statism for another two decades. A man of the nineteenth century, an admirer of John Stuart Mill as well as of Gladstone, Hughes was therefore able during most of his public life to press for civic equality and economic opportunity while upholding property rights, bounded government, and a liberal capitalist economic order.
There is great irony in his fate. Raised as a good-government Mugwump, the defender in his mature years of a modest American version of the New Liberalism of Winston Churchill and Lloyd George, Charles Evans Hughes ended his public career supporting the decisions that began the New Deal constitutional revolution that (in the view of some New Liberal Progressives) marked the advent of Belloc’s Servile State in the American republic. It is that irony I have chosen to call the Strange Death of Liberal America.
James A. Henretta is the Priscilla Alden Burke Professor of American History at the University of Maryland <[email protected]>. In 1991–1992 he was the Harold Vyvyan Harmsworth Professor of American History at Oxford University, where he delivered a very preliminary version of this article as his Inaugural Lecture. He would like to express his thanks to the Trustees of the Rothermere Foundation and Major and Mrs. Vivian Harmsworth for their kind support, and to Provost and Fellows of the Queen’s College for their hospitality. Various colleagues in England and the United States—Bruce Ackerman, James Banner, Alan Brinkley, John Buenker, Gary Gerstle, James Gilbert, David Grimsted, Stanley Katz, James Kloppenberg, Robyn Muncy, J. R. Pole, Daniel Rodgers, John Rowett, Christopher Tomlins, and Rebecca Starr—offered helpful criticism and suggestions, as did members of the Washington Seminar on American History and Culture. The author revised this article while enjoying the John Hope Franklin Senior Fellowship at the National Humanities Center.
Notes
1. George Creel, Rebel at Large (New York: G. P. Putnam’s Sons, 1947), quoted in Otis Graham, An Encore for Reform: The Old Progressives and the New Deal (New York: Oxford University Press, 1967), 90.
2. For accounts by political historians, see the essays in The Rise and Fall of the New Deal Order, 1930–1980, ed. Steve Frazer and Gary Gerstle (Princeton: Princeton University Press, 1989); Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (Cambridge: Cambridge University Press, 1985); Sidney M. Milkis, The President and the Parties: The Transformation of the American Party System since the New Deal (New York: Oxford University Press, 1993); and William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995).
3. Nearly all treatments of Hughes’s life and political career are dated and most present him in a very favorable light, partly because they rely heavily on papers that Hughes personally selected and deposited in the Library of Congress (hereafter LC). The best studies are the two-volume authorized biography by Merlo Pusey, Charles Evans Hughes (New York: Columbia University Press, 1951) and the interpretative study by Dexter Perkins, Charles Evans Hughes and American Democratic Statesmanship (Boston: Little Brown, 1956). See also Robert Wesser, Charles Evans Hughes: Politics and Reform in New York, 1905–1910 (Ithaca: Cornell University Press, 1967).
4. This interpretation stems from George Dangerfield’s brilliant narrative history of pre-war liberalism, The Strange Death of Liberal England (New York: H. Smith & R. Haas, 1935). Recent scholarship views the demise of British liberalism as primarily the result of World War I.
5. See Daniel Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Harvard University Press, 1998).
6. Between 1930 and 1960, the proportion of civilian government employees in the American workforce nearly doubled, from 6.3 percent to 11.9 percent. The number of federal government workers increased even more dramatically, from 526,000 to 2.2 million, and the number of non-government workers paid with federal tax dollars rose in an even more impressive fashion. In 1930 there was a single federal worker for every five state and local government employees (526,000 to 2.6 million); in 1940, the ratio had risen to 1 to 3.3 (956,000 to 3.2 million); and by 1950 it was 1 to 2.2 (1.9 to 4.1 million). For discussions of the conception of “Statism” in the Progressive and New Deal eras, see notes 43 and 129 and the accompanying text.
7. Barry Cushman, “Rethinking the New Deal Court,” Virginia Law Review 80 (1994): 201–61; Cushman, “A Stream of Legal Consciousness: The Current of Commerce Doctrine from Swift to Jones & Laughlin,” Fordham Law Review 61 (1992): 105–81; and Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998).
8. Richard Friedman, “Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation,” University of Pennsylvania Law Review 142 (1994): 1891–1984; Friedman, “Charles Evans Hughes as Chief Justice, 1930–1941” (unpublished D.Phil. diss., Oxford University, 1979).
9. G. Edward White, The Constitution and the New Deal (Cambridge: Harvard University Press, 2000), 235, 204–5.
10. For the remarks of Taft and Hand, see notes 87 and 89, below. Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1991), chaps. 4–5, and We the People: Transformations (Cambridge: Harvard University Press, 1998); Cass R. Sunstein, “Lockner’s Legacy,” in Law and Liberalism in the 1980s, ed. Vincent Blasi (New York: Columbia University Press, 1991), 157–204; Michael E. Parrish, The Hughes Court: Justices, Rulings, and Legacy (Santa Barbara: ABC-CLIO, Inc., 2002).
11. Letters of 6 and 23 October 1876, quoted in Pusey, Hughes, 1:31, and chaps. 1–4. Although a Methodist in Wales, the elder Hughes served Baptist congregations in the U.S. Oliver Wendell Holmes, Jr., who befriended the younger Hughes during his six years as an associate justice, was struck both by his colleague’s intense religiosity and capacity for independent thought, noting that Hughes had “doubts that open vistas through the wall of a nonconformist conscience.” Letter to Sir Frederick Pollock, quoted in Paul A. Freund, “Charles Evans Hughes as Chief Justice,” Harvard Law Review 81 (1967): 38.
12. CEH to his parents, 13 April 1878, Hughes Papers, LC; CEH to his father, 30 April 1882, in Pusey, Hughes, 1:65.
13. See the remarks of Jacob Gould Schurman in The Addresses of Charles Evans Hughes, 1906–1916 (New York: G.P. Putnam’s Sons, 1916), 3–4. Professor Thomas Reed Powell of Harvard noted Hughes’s “well-nigh titanic” capacity for work, quoted in Friedman, “Charles Evans Hughes,” 161. As Hughes explained in an interview in 1945, at age eighty-three: “I inherited a continuing ambition to excel in good work and do my job as well as it could be done. I couldn’t bear the thought of leaving undone anything which could be done….” Pusey, Hughes, 1:95.
14. Wayne K. Hobson, “Symbol of the New Profession: Emergence of the Large Law Firm, 1870–1915,” in Gerald W. Gawalt, ed., The New High Priests: Lawyers in Post-Civil War America (Westport, Conn.: Greenwood Press, 1984), 17–19.
15. Pusey, Hughes, 1: chaps. 7–9 and 1:298, 2:664. His income as a partner in Carter’s law firm was $13,500; at Cornell, $3,000.
16. Quoted in Friedman, “Charles Evans Hughes,” 158; see also Pusey, Hughes, 1:174.
17. Editor’s Note: “Governor on the Bench: Charles Evans Hughes as Associate Justice,” Harvard Law Review 89 (1976): 966. John W. Davis, a leading member of the American Bar and the Democratic presidential candidate in 1924, noted that Hughes was “too apt to reach his conclusion and then reason to it, instead of reasoning to it and reaching his conclusion.” Ibid., 966.
18. Frankfurter, quoted in Friedman, “Charles Evans Hughes,” 137. To Justice Robert H. Jackson, Hughes “was one of the two great personalities of my time. The other was the President [FDR].” Eugene C. Gerhart, America’s Advocate: Robert H. Jackson (Indianapolis: Bobbs-Merrill, 1958), 145. Balfour quoted in Pusey, Hughes, 2:614. William R. Castle, Jr., who worked under Hughes at the State Department, wrote in his diary in 1924: “It is inspiring to come into contact with his mind, the most perfect mental machine in the whole world; with his courage, which always dares to do the right thing.” Quoted in Pusey, Hughes, 2:610.
19. CEH to his father, 2 November 1880, and to Charles Evans Hughes, Jr., 28 March 1924, Hughes Papers, LC. Between 1894 and 1904 Hughes argued twenty-five cases before the New York Court of Appeals, none of them dealing directly with large questions of public policy. For Hughes’s views on Cleveland, see the comments of his secretary, R. H. Fuller, Hughes Papers, LC, Reel 149, Frame 763. Opposing Hughes’s renomination in 1908, Republican party boss (and Speaker of the Assembly) William Barnes, Jr., complained that it would “put the Republican party in this state in the hands of the Mugwumps.” Quoted in Richard L. McCormick, From Realignment to Reform: Political Change in New York State, 1893–1910 (Ithaca: Cornell University Press, 1981), 234.
20. For Gladstone’s influence in the United States, see Robert Kelley, The Transatlantic Persuasion: The Liberal Democratic Mind in the Age of Gladstone (New York: Knopf, 1969). Unlike Gladstone, whose portrait graced Hughes’s home in the 1890s, Hughes was not a free-trader. Before World War I he favored a protective tariff with rates set by “an expert commission” (see Schurman, Addresses, 39), and as Secretary of State he did not speak out against high import duties, despite their impact on the ability of Europeans to pay their war debts to the United States. See Perkins, Hughes, 115–39, and Pusey, Hughes, 1:208 and 2:571–73, 593.
21. Pusey, Hughes, 1:134; Wesser, Hughes, 22; for the details of Hughes’s appointment, compare Edwin McElwain, “The Business of the Supreme Court as Conducted by C. J. Hughes,” Harvard Law Review 63 (1949): 8–9, with David J. Danelski and Joseph S. Tulchin, eds., The Autobiographical Notes of Charles Evans Hughes (Cambridge: Harvard University Press, 1973), 108–9 and 119–20.
22. Pusey, Hughes, 1:136–38; McCormick, Realignment to Reform, 195–96. Consolidated Gas declared its tax value as $35 million, but calculated its rates on an inflated value of $47 million and, in 1904, paid dividends of $8 million (or 10 percent) on $80 million of stock. In fact, the actual rate of return on capital was between 20 and 30 percent, since Hughes determined that the replacement value of the Gas Company’s assets was $27 million.
23. On European municipal socialism, see Rodgers, Atlantic Crossings, 117–30. Assembly Report quoted in McCormick, Realignment to Reform, 157. Municipal ownership of utilities existed in many small American towns. As Rodgers notes (147–59), a well-justified fear of political corruption in large cities, the result of universal suffrage and machine politics, undercut American movements for municipal ownership and urban progressivism.
24. In defining the powers of the commission, Hughes may have noted the commission created in 1829 by Martin Van Buren to regulate member banks of the New York Safety Fund. See James A. Henretta, “The Birth of American Liberalism: New York, 1820–1860,” in Republicanism and Liberalism in America and the German States, 1750–1850, ed. Jürgen Heideking and James A. Henretta (Cambridge: Cambridge University Press, 2002), 173, and Don C. Sowers, The Financial History of the State of New York: From 1783 to 1912 (New York: Columbia University Press, 1914), chap. 4.
25. McCormick, Realignment to Reform, 32, 149–50, 178, 194–97; Hughes, “Address to the Attica Chamber of Commerce,” April 1, 1907, in Schurman, Addresses, 152–54 and, below, notes 89–93 and the accompanying discussion; William E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980 (Chapel Hill: University of North Carolina Press, 2001), 19, 27–28; Randolph E. Bergstrom, Courting Danger: Injury and the Law in New York City, 1870–1910 (Ithaca: Cornell University Press, 1992), 81n.
26. Hughes had chosen the legal profession in part because it was “the one most favorable to high ambition.” The insurance probe was the opportunity of a lifetime, and he seized it with both hands. “My dear,” he wrote to his wife from the German Alps, “you don’t know what this investigation would mean. It would be the most tremendous job in the United States.” CEH to Antoinette Hughes, 6 May 1905, Hughes Papers, LC; Pusey, Hughes, 1:60, 141–42.
27. Harold U. Faulkner, The Decline of Laissez-Faire (New York: Harper & Row, 1951), 371.
28. McCormick, Realignment to Reform, 197–205, 218 (quote); Pusey, Hughes, 1:164-68.
29. Robert W. Gordon, “‘The Ideal and the Actual in the Law’: Fantasies and Practices of New York City Lawyers, 1870–1910,” in Gawalt, ed., The New High Priests, 59–61. Hughes “Report” quoted in Mark J. Roe, Strong Managers, Weak Owners: The Political Roots of American Corporate Finance (Princeton: Princeton University Press, 1995), 69. See also Morton Keller, The Life Insurance Enterprise, 1885–1910 (Cambridge: Harvard University Press, 1963), 259–64. Harold Perkin, The Rise of Professional Society: England since 1880 (London: Routledge, 1990), chaps. 1, 4, and 8 develop the concept of the professional ideal.
30. Quoted in Pusey, Hughes, 1:173. In the spring of 1906, Roosevelt had tried to recruit Hughes to investigate illegal trade combinations in the coal industry.
31. Wesser, Hughes, 86–91. In 1886, the Union had backed the nearly successful mayoral bid of utopian socialist Henry George.
32. See Bergstrom, Courting Danger, 15–30 (tables 1–12) and 158–66 (tables 22–31) for increases in the number of cases and the size of awards, and, in general, Lawrence M. Friedman and Jack Ladinsky, “Social Change and the Law of Industrial Accidents,” Columbia Law Review 67 (1967): 50–82.
33. Roosevelt to Philander Knox, 10 November 1904, quoted in Martin J. Sklar, The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, the Law, and Politics (Cambridge: Cambridge University Press, 1988), 357; McCormick, Realignment to Reform, 152, 178–79.
34. Irwin Yellowitz, Labor and the Progressive Movement in New York State, 1897–1916 (Ithaca: Cornell University Press, 1965), 213; McCormick, Realignment to Reform, 206–8, 220–27; Wesser, Hughes, 88–99.
35. Perkin, Professional Society, 52 (quote). Dangerfield, Strange Death, points to the pre-war decline of British liberalism, while Peter F. Clarke, Lancashire and the New Liberalism (Cambridge: Cambridge University Press, 1971) and Clarke, “The Progressive Movement in England,” Transactions of the Royal Historical Society 24 (1974): 159–81, argues for its vitality. See also Kenneth O. Morgan, “The Future at Work: Anglo-American Progressivism, 1870–1917,” in Contrast and Connection: Bicentennial Essays in Anglo-American History, ed. H. C. Allen and Roger Thompson (Columbus: Ohio State University Press, 1976), 245–71. On the rise and fall of the Lib-Lab alliance, see Gregory M. Luebbert, Liberalism, Fascism, or Social Democracy: Social Classes and the Political Origins of Regimes in Interwar Europe (New York: Oxford University Press, 1991), 15–27.
36. Churchill quoted in Kenneth Morgan, The Age of Lloyd George (New York: Barnes and Noble, 1971), 145, see also 43–47; Winston Spencer Churchill, Liberalism and the Social Problem (London: Hodder and Stoughton, 1909), 82 and 240–49. The legislation proposed by New Liberals was strongly contested and sometimes defeated; in 1908 the Liberal-dominated Parliament rejected a “Right to Work” plan for public employment during times of depression. See H. V. Emy, Liberals, Radical and Social Politics, 1892–1914 (Cambridge: Cambridge University Press, 1973), 171–72; George L. Bernstein, Liberalism and Liberal Politics in Edwardian England (Boston: Allen & Unwin, 1986), 200.
37. John D. Buenker, Urban Liberalism and Social Reform (New York: Scribner, 1973), 26. For Hughes’s definition of the governorship, see Schurman, Addresses, 79–80; for his appointment and veto activities, see Pusey, Hughes, 1:197 and Wesser, Hughes, 121–23, 179–80, and 254. The best general discussion of the links among parties, state finance, and corporations is Clifton K. Yearley, The Money Machines: The Breakdown and Reform of Governmental and Party Finance in the North, 1860–1920 (Albany: SUNY-Press, 1970).
38. See Schurman, Addresses, 61; McCormick, Realignment to Reform, 215–16. James Wadsworth, Jr., the new speaker of the assembly, also took steps to curtail corrupt ties between the railroads and the legislators. See Wesser, Hughes, 150–51 and 276–79.
39. Roosevelt quoted in McCormick, Realignment to Reform, 228. The upstate industrialist reformer, Thomas Mott Osborne, a Democrat, had a different perspective, declaring that Hughes represented “the fight against boss-rule better than anyone … in our time.” Quoted in Robert F. Wesser, Response to Progressivism: The Democratic Party and New York Politics, 1902–1918 (New York: New York University Press, 1986), 34. Reporter quoted in McCormick, Realignment to Reform, 230.
40. See Wesser, Hughes, chap. 11 and McCormick, Realignment to Reform, 244–47. For details of the primary plan, see Danelski and Tulchin, Autobiographical Notes, 152. Hughes had been an obvious presidential candidate in 1908, but, in what historian Arthur Link calls “his one great mistake,” Roosevelt picked William Howard Taft as his successor, in part because of Hughes’s unwillingness to compromise with Republican party bosses (Arthur Link, Woodrow Wilson and the Progressive Era [New York: Harper, 1954], 3). Hughes’s disregard of the party nearly cost him the election; in 1908, Taft carried New York by 203,000 votes but Hughes won reelection by only 69,000 votes. See Pusey, Hughes, 1:233–39 and Wesser, Hughes, chap. 9.
41. On the Moreland Act, see Wesser, Hughes, 141–42 and J. Ellesworth Missall, The Moreland Act: Executive Inquiry in the State of New York (New York: King’s Crown Press, 1946). Also, Elihu Root to CEH, 1 May 1907, Hughes Papers, LC.
42. Quoted in Bruce W. Dearstyne, “Regulation in the Progressive Era: The New York Public Service Commission,” New York History 58 (1977): 336. For opposition to “government by commission” by Robert Wagner and other pro-worker and pro-immigrant “urban liberals,” see Wesser, Hughes, 157 ff.; and by national Democrats, see Scott C. James, “Building a Democratic Majority: The Progressive Party Vote and the Federal Trade Commission,” Studies in American Political Development 9 (1995): 346–54. Hughes quoted in McCormick, Realignment to Reform, 237.
43. Nation quoted in Samuel Hendel, Charles Evans Hughes and the Supreme Court (New York: King’s Crown Press, 1951), 15.
44. New York State, Report of the State Reorganization Commission (Albany: State Printing Office, 1926). For Hughes’s thinking on the executive budget, see Danelski and Tulchin, Autobiographical Notes, 139. See also McCormick, Realignment to Reform, 230–31; Pusey, Hughes, 1:259–66; and Yearley, Money Machines, 270–75. Hughes’s interest in administrative efficiency formed an important theme throughout his public life. As Secretary of State, Hughes was largely responsible for the Rogers Act of 1924, which reorganized the Foreign Service. See Perkins, Hughes, 96; Pusey, Hughes, 2:624.
45. Kelley, TransAtlantic Persuasion, passim.
46. Flowers quoted in McCormick, Realignment to Reform, 57. Buenker, Urban Liberalism and Social Reform, chap. 1; Yellowitz, Labor and the Progressive Movement, 166, 180–82. For other instances of Tammany’s devotion to “honest graft” and party interests at the expense of the poorer citizens and the unions, see Adonica Y. Lui, “The Machine and Social Policies: Tammany Hall and the Politics of Public Outdoor Relief, New York City, 1874–1898,” Studies in American Political Development 9 (1995): 386–403.
47. Hughes quoted in Wesser, Hughes, 92–93; for his defense of property rights, see the New York City and Youngstown speeches of 1908 in Schurman, Addresses, 86–107, 328. Mary Kingsbury Simichovitch quoted in Yellowitz, Labor and the Progressive Movement, 95; but her fellow settlement worker Louis Pink complained: “Many of those who are most active in housing reform” support “vested property rights [and] … are bitterly opposed to city built tenements.” Ibid., 97.
48. Hughes acted upon receiving the report of his special Commission on the “Condition, Welfare, and Industrial Opportunities of Aliens.” See Yellowitz, Labor and the Progressive Movement, 43–49; Wesser, Hughes, 309–25.
49. Ely quoted in James Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford University Press, 1986), 286. As this quotation suggests, Ely was more a critic of laissez-faire than a socialist ideologue and had little faith in political democracy. In 1882, he praised the restrictions on municipal voting in Berlin and criticized the results of universal suffrage in New York City. Two decades later, he turned away from municipal socialism because of fears of political corruption and administrative incompetence. See Rodgers, Atlantic Crossings, 98–99, 137, 155.
50. Nancy Cohen, The Reconstruction of American Liberalism, 1865–1914 (Chapel Hill: University of North Carolina Press, 2002), 5 and passim, argues that Mugwump reformers and the first generation of social science reformers, such as Ely, Commons, John Bates Clark, Simon Patten, and Edwin R. A. Seligman, “invented a new liberalism that posited an active role for the state in society and economy even as it justified constraints on democracy and the ascendancy of corporate capitalism.”
51. Quotations from Yellowitz, Labor and the Progressive Movement, 56–57, 133, and 143. See Emy, Social Politics, 264, for British union opposition to compulsory arbitration.
52. The battle over the legislation in New York is recounted in Yellowitz, Labor and the Progressive Era, 108–18, and Wesser, Hughes, 317–20. Rodgers, Atlantic Crossings, 247–61, provides a general, pan-Atlantic analysis. The Court struck down the act in Ives v. So. Buffalo Ry. Co., 201 N.Y. 271 (1911). See Edward S. Corwin, “Social Insurance and Constitutional Limitation,” Yale Law Journal 26 (1917), 431–43.
53. Barbara C. Steidle, “Reasonable Reform: The Attitude of Bar and Bench Toward Liability Law and Workmen’s Compensation,” in Building the Organizational Society: Essays on Associational Activities in Modern America, ed. Jerry Israel (New York: The Free Press, 1972), 31–42; Rodgers, Atlantic Crossings, 247–51. See also, William Thomas, Lawyering for the Railroad: Business, Law, and Power in the New South (Baton Rouge: Louisiana State University Press, 1999).
54. Hughes’s rethinking of labor issues was apparent as early as 1908, when he was talked about as a presidential candidate. The quotation comes from his “Address to the Republican Club of New York City” (January 1908), Schurman, Addresses, 86–107. In 1916, Hughes supported women’s suffrage for similar circumstantial reasons; he thought that opposition would be futile and create unnecessary political strife.
55. David P. Currie, “The Constitution in the Supreme Court: 1910–1921,” Duke Law Journal (1985): 1111–62.
56. Cooley, 53 U.S. (12 How.) 299 (1851); Weldon, 91 U.S. 275 (1875); Editor’s Note, “Charles Evans Hughes,” 971–73, 979–80; U.S. v. E. C. Knight, 156 U.S. 1 (1895); Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280 (1914); Currie, “Constitution in the Court,” 1139n.
57. Minnesota Rate Cases, 230 U.S. 352, at 416–17 (1913).
58. Houston, East and West Texas Railway v. U.S., 234 U.S. 342 (1914); Editor’s Note, “Charles Evans Hughes,” 985. Currie, “Constitution in the Court,” 1118–21, suggests that Hughes limited the reach of the decision in an effort to meet the objections of two dissenting justices; Hughes noted that some senators opposed his appointment as chief justice in 1930 because they felt that Shreveport “unduly interfered with the authority of the States.” See Danelski and Tulchin, Autobiographical Notes, 295.
59. Sklar, American Capitalism, 86–178, explores the divisions in the Court over the Sherman Act and argues that the triumph of White’s faction in the “rule of reason” decisions of Standard Oil and American Tobacco Company cases was not a victory of laissez-faire principles but rather the revival of common law practices that permitted price fixing by private companies and (now) public agencies. For Hughes’s acceptance of White’s position, see his opinion in Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, at 406–7 (1911). See also James, “Building a Democratic Majority,” 338–42. During his years as chief justice, Hughes hung a portrait of White (and of John Stuart Mill) in his home office. See Pusey, Hughes, 2:667.
60. Southern Pacific Company v. Campbell, 230 U.S. 537 (1913), emphasis added. In New York Electric Lines Company v. Empire City Subway Company, 235 U.S. 179 (1914) Hughes upheld the power of the state to revoke a franchise for non-performance; previously, misuse of a grant had been the only ground for revocation. See Hendel, Hughes, 42–45 and Editor’s Note, “Charles Evans Hughes,” 990. In his lectures on the Court, Hughes cited Charles River Bridge in observing that “Charter grants are also strictly construed against the grantees….” (The Supreme Court of the United States: Its Foundation, Methods and Achievements: An Interpretation [New York: Columbia University Press, 1928], 202).
61. Wilson v. U.S., 221 U.S. 361 (1911); see also Dreier v. U.S., 221 U.S. 394 (1911) and Editor’s Note, “Charles Evans Hughes,” 985–86. On McKenna’s dissent, Arthur M. Allen, “The Opinions of Mr. Justice Hughes,” Columbia Law Review 16 (1916): 565–84.
62. T. H. Green, Lectures on the Principles of Political Obligation, ed. Paul Harris and John Morrow (Cambridge: Cambridge University Press, 1986), 205, 209. For Emile Durkheim’s somewhat similar search for a collectivist definition of liberal society, see Richard Bellamy, Liberalism and Modern Society: A Historical Argument (University Park: Pennsylvania State University Press, 1992), 74–104. Gladstone quoted in Kelley, Transatlantic Persuasion, 216; for Churchill, see his Liberalism and the Social Problem, 84, 24, 266.
63. “Mechanical Jurisprudence,” Columbia Law Review 8 (1908) 108–9; “Liberty of Contract,” Yale Law Journal 18 (1909): 454.
64. “Do We Need a Philosophy of Law?” Columbia Law Review 5 (1905): 344, quoted in N. E. H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chicago Press, 1997), 58. “I believe you have set me in the path the world is moving in,” Pound told Ross in 1906. See David Wigdor, Roscoe Pound: Philosopher of the Law (Westport, Conn.: Greenwood Press, 1974), 112. For Pound’s fully developed view, see “The Scope and Purpose of Sociological Jurisprudence,” Harvard Law Review 24 (1911): 591–619, and 25 (1912): 140–68, 489–516.
65. Ross, Sin and Society (Boston: Houghton, Mifflin and Company, 1907), 90, quoted in Wigdor, Pound, 113. Ely quoted in Morton Horwitz, The Transformation of American Law, 1870–1960 (New York: Oxford University Press, 1992), 166, who notes that Ely dedicated Studies in the Evolution of Industrial Society (New York: Macmillan, 1903) to Justice Holmes.
66. Chicago, Burlington & Quincy Railroad Company v. McGuire, 219 U.S. 549 at 571 and 566 (1911). Hughes also used the concept of “public interest” to prevent a patent medicine manufacturer from specifying, by contract, the price that retailers might charge for its goods (Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 31 Sup. Ct. 376 [1911]). In dissent, Holmes took the laissez-faire position that the market should determine prices, unless there was a clear case for interference. See Allen, “Opinions of Hughes,” 568–69.
67. Miller v. Wilson, 236 U.S. 373 (1915); Philadelphia, Baltimore & Western Railroad Co. v. Schubert, 224 U.S. 603 (1912).
68. Coppage v. Kansas, 236 U.S. 1. Holmes wrote a separate dissent, which argued that the state had a right “to establish the equality of position between the parties in which liberty of contract begins.” Coppage was an atypical decision; while Hughes was an associate justice, the Court rejected due process claims in nearly two hundred cases and sustained only a dozen or so of such allegations. See Currie, “Constitution in the Court,” 1130n. Hughes, Supreme Court, 207–40, cites many cases in which judges used the same principles to justify contradictory decisions but never explicitly criticizes the Court for rendering inconsistent or ideologically driven decisions.
69. For judicial efforts before 1910 to adopt a community-oriented definition of private contracts, see Samuel R. Olken, “Charles Evans Hughes and the Blaisdell Decision: A Historical Study of Contract Clause Jurisprudence,” Oregon Law Review 72 (1993): 513–602. My discussion of Hughes’s “socialization” of market contracts follows that in Friedman, “Charles Evans Hughes.”
70. Wilson quoted in Richard Hofstadter, The Age of Reform: From Bryan to F. D. R. (New York: Knopf, 1955), 223; Link, Wilson and the Progressive Era, 21, 58. Alan Dawley, Struggles for Justice: Social Responsibility and the Liberal State (Cambridge: Harvard University Press, 1991), 147–55, 170, calls this system of public-private regulation a “para-state.”
71. Kloppenberg, Uncertain Victory, 355. From the Civil War to 1914, the federal government had an extraordinarily regressive tax system; most of its revenue came from excise taxes (primarily on alcohol and tobacco) and from tariffs (58 percent in 1887, for example). This Republican tax regime survived politically because it protected American workers and allocated much of the revenue in a progressive fashion through pensions to Union Army veterans and their families. See Ballard C. Campbell, The Growth of American Government: Governance from the Cleveland Era to the Present (Bloomington: University of Indiana Press, 1995), 17, and W. Elliot Brownlee, “Tax Regimes, National Crisis, and State-building in America,” in Funding the Modern American State, 1941–1995: The Rise and Fall of the Era of Easy Finance, ed. W. Elliot Brownlee (Cambridge: Cambridge University Press, 1996), 47–69. Robert Stanley, Dimensions of Law in the Service of Order: Origins of the Federal Income Tax, 1861–1913 (New York: Oxford University Press, 1993) argues that the income tax was primarily symbolic, used by politicians to deflate class tensions, but Brownlee provides evidence of a Democratic “soak the rich” tax policy after 1914.
72. James, “Building a Democratic Majority,” provides an extensive and convincing interpretation of Wilson’s embrace of the FTC.
73. Brandeis was the architect of the famous brief in Mueller v. Oregon, 208 U.S. 414 (1908), which used sociological evidence to defend an Oregon law limiting working hours for women.
74. Wilson, “The Ideals of Public Life” (1907), quoted in James, “Building a Democratic Majority,” 331. In general, see S. D. Lovell, The Presidential Election of 1916 (Carbondale: Southern Illinois University Press, 1980).
75. Hughes, quoted in Pusey, Hughes, 1:253 and chap. 32; World quoted in Link, Woodrow Wilson, 238, and 247–51; Lovell, Election of 1916, 80–88, 106–7, 123–24. Edward S. Corwin, who favored most progressive measures, including workers’ compensation, argued at the time that the Adamson Act was unconstitutional because it benefited a restricted group of workers and not the “public welfare.” See Corwin, “Social Insurance,” 57–58. For Hughes’s opposition to the Sixteenth Amendment, see below, at note 109.
76. Nonetheless, Wilson was not a committed social reformer. When Joseph Tumulty argued in 1918 that “the real antidote for Bolshevism is social reconstruction” and urged the president to propose a Lloyd George-type program of social reform: old age pensions, health insurance, and federal wage and hours’ legislation, Wilson ignored his advice. See Rodgers, Atlantic Crossings, 301.
77. However, as a private counsel for bond houses several years later, Hughes supported the constitutionality of the Federal Farm Loan Act of 1916 and continued to support that position during his chief justiceship. See below, at note 134.
78. Rodgers, Atlantic Crossings, 128. Between 1890 and 1905 spending by local governments in Britain increased from 38 percent to 50 percent of total government expenditures. James E. Cronin, The Politics of State Expansion: War, State, and Society in Twentieth-Century Britain (New York: Routledge, 1991), 43, 51–57.
79. Dangerfield, Strange Death, 218. As the American intellectual Herbert Croly put it, reform liberalism was essentially “a species of higher conservatism.” Quoted in Graham, Encore for Reform, 174; Wilson, quoted in Dawley, Struggles for Justice, 218.
80. See Cronin, State Expansion, 47–72; Rodgers, Atlantic Crossings, 290–301.
81. Masterman, The New Liberalism, quoted in Morgan, Age of Lloyd George, 202; Edward David, “The New Liberalism of C. F. G. Masterman,” in Essays in Anti-Labour History, ed. Kenneth D. Brown (Hamden, Conn.: Archon Books, 1974), 17–41; Michael Bentley, “The Liberal Response to Socialism, 1918-1929,” in ibid., 42–72; and Clarke, “Progressive Movement,” 178. In general, see Michael Freeden, Liberalism Divided: A Study in British Political Thought, 1914–1939 (Oxford: Oxford University Press, 1986) and Luebbert, Liberalism, Fascism, or Social Democracy, chap. 6, esp. 191–210.
82. 247 U. S. 251 (1918) and 261 U. S. 525 (1923). Dawley, Struggles for Justice, 235–43, 282–84, 295–325. Robert Gordon notes the outright opposition to progressivism of some leading American lawyers during the 1920s and the “withdrawal” from “issues of public concern” of many others. “New York City Lawyers,” 68–74.
83. Hughes, “Speech to the New York State Bar Association” (1916), in Schurman, Addresses, 335; Brownlee, “Tax Regimes,” 64–69, notes that these taxes paid for 37 percent of the cost of the war.
84. Hughes, Autobiographical Notes, 195 (Harvard Speech, 1920); “The Shrine of the Common Law” (Speech at Westminster Hall, London 1924), in Charles E. Hughes, The Pathway of Peace: Representative Addresses Delivered During His Term as Secretary of State (1921–1925) (New York: Harper & Brothers, 1925), 208; for his faith in the judiciary, see Perkins, Hughes, 49.
85. Mark H. Leff, The Limits of Symbolic Reform: The New Deal and Taxation, 1933–1939 (Cambridge: Cambridge University Press, 1984), table 1. Between 1926 and 1930, about one-third of federal revenues came from regressive tariffs and excise taxes. In 1935, when federal revenue levels were similar, regressive levies accounted for 59 percent (tariffs: 9 percent; excise taxes: 37 percent; and agricultural processing: 14 percent) of the total, while progressive taxes (on corporations, incomes of the wealthy, and estates) accounted for only 36 percent. However, Mellon’s tax policy did not dramatically redistribute the nation’s highly concentrated wealth because federal revenues amounted to only 5 percent of the Gross Domestic Product.
86. Believing Hughes to be more conservative than Hoover, in 1928 Thomas W. Lamont of J. P. Morgan and other conservatives attempted to draft him as the Republican candidate; citing his age, Hughes declined. See Pusey, Hughes, 2:628.
87. Associate Justices Willis Van Devanter and Pierce Butler traveled to New York to urge Hughes to indicate his interest in the position. For a comprehensive and balanced account of Hughes’s appointment, see Gerald Gunther, Learned Hand: The Man and the Judge (Cambridge: Harvard University Press, 1994), chap. 9; for Cotton’s judgment, see ibid., 446.
88. After dining with Hughes in the 1930s, the formidable Washington hostess Agnes Meyer noted in her diary “What a rigid creature he is. His faith in the power of reason is boundless. He never suspects that there are all sorts of majestic beauties that cannot be captured by a syllogism.” Quoted in Friedman, “Charles Evans Hughes,” 38. Hughes spoke at the Amherst graduation of his grandson, the future historian H. Stuart Hughes, Pusey, Hughes, 2:762. Hughes was so eager to become chief justice that he sacrificed the public career of his son Charles, who, to avert a conflict of interest, had to resign his position as Solicitor General of the United States.
89. White, Constitution and New Deal, 106, 267–71, 295–97, and elsewhere seeks to minimize the ideological and doctrinal differences on the Hughes court but his analysis is not convincing. While Taft was labeling the liberals as “the Bolsheviki,” Judge Learned Hand called the four conservative justices the “mastiffs” and the “Battalion of Death.” See Felix Frankfurter to Harlan Fiske Stone, 2 June 1931, Frankfurter Papers, Reel 64, and 14 February 1936, Box 13, Stone Papers, LC. As early as 1930, Oliver McKee, Jr., described Hughes as one of four “liberals” on the Court along with four “conservatives.” “A Liberal Supreme Court,” The Outlook, 171–72. In April 1930, McReynolds upbraided Stone for the number of his dissents, eliciting a sharp reply from Stone. Stone Papers, Box 76, LC.
90. Using different categories Michael E. Parrish offers a similar interpretation. See “The Hughes Court, the Great Depression, and the Historians,” The Historian 4 (1978): 286–308, and The Hughes Court, passim.
91. Stone to Frankfurter, 15 February 1936, Box 13, Stone Papers, LC.
92. Danelski and Tulchin, Autobiographical Notes, 112; McCabe v. Atchinson, Topeka, & Sante Fe Railroad, 235 U.S. 151 (1914), which then denied relief on technical grounds; Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) and, in general, R. Perry Sentell, Jr., “The Opinions of Hughes and Sutherland and the Rights of the Individual,” Vanderbilt Law Review 15 (1962): 559–615, and A. Leon Higginbotham, Jr., and William C. Smith, “The Hughes Court and the Beginning of the End of the ‘Separate But Equal’ Doctrine,” Minnesota Law Review 76 (1992): 1099–1131.
93. Bailey v. Alabama, 219 U.S. 219 at 238 (1910); Norris v. Alabama, 294 U.S. 587 (1935). In 1915 Hughes had laid the procedural basis for Norris by asserting the power of the Supreme Court to review in habeas corpus hearings the content of criminal trials in state courts: Frank v. Mangum, 237 U.S. 309 (1915); 35 Sup. Ct. 582. See Arthur M. Allen, “The Opinions of Mr. Justice Hughes,” Columbia Law Review 16 (1916): 565–84. Holmes, accounted a liberal on many issues, did not support Hughes’s efforts to secure equal rights for African Americans. See G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 335–36, 341–42.
94. Justices Butler and McReynolds dissented in Stromberg and all the Four Horsemen dissented in Near.
95. In both cases, the applicants refused to take the prescribed oath to “support and defend the Constitution and laws of the United States against all enemies, foreign and domestic….” United States v. Bland, 283 U.S. 636; United States v. Macintosh, 283 U.S. 605.
96. Pusey, Hughes, 1:110, 392–93; Stromberg v. California, 283 U.S. 359 (1931); Near v. Minnesota, 283 U.S. 697 (1931); Joseph Pollard, quoted in Pusey, Hughes, 2:729. Writing in 1938, Kenneth B. Umbreit, Our Eleven Chief Justices: A History of the Supreme Court through Their Personalities (Port Washington, N.Y.: Kennikat Press, 1938), 2:453, notes that Hughes was the first member of a dissenting sect to serve as chief justice; his predecessors had been either Episcopalians or Catholics.
97. Hughes quoted in Hendel, Hughes, 8, and in Friedman, “Charles Evans Hughes,” 123; Paul A. Freund on Hughes, quoted in Friedman, “Hughes Court,” 1951n. Felix Frankfurter was critical of Hughes’s commitment to precedent: “If only the theological tradition were not so strong upon our profession … [and] some of its leading ministers like the Chief …, things would be called by their real names instead of pretending that it is all a logical unfolding….” Frankfurter to Stone, 22 September 1933, Box 13, Stone Papers, LC. In his lectures on The Supreme Court, 198–99, Hughes endorsed a “guarded application and extension of constitutional principles” through “particular cases.”
98. Carolene Products, 304 U.S. 144 (1938); Louis Lusky, “Footnote Redux: A Carolene Products Reminiscence,” Columbia Law Review 82 (1982): 1093, 1096–99. On equal protection, see Frankfurter to Stone, 23 March 1933, Stone’s reply of 29 March, Box 13 Stone Papers, LC, and Lewis F. Powell, Jr., “Carolene Products Revisited,” Columbia Law Review 82 (1982): 1087, 1090.
99. Lusky, “Footnote Redux,” 1096–99. For Hughes’s views on rights, see Pusey, Hughes, 2:706–7, and Mason, Stone, 489–92, 530. Parrish, “Hughes Court,” 300, underlines Hughes’s “hostility to legislative interference with property rights.”
100. Hendel, Hughes, 72; on the Gobitis case, see Pusey, Hughes, 2:729; Friedman, “Charles Evans Hughes,” 26–27. Hughes wanted to uphold the state law both because it was non-discriminatory (it applied to all school children) and because it was based on the police power, the justification for other regulatory legislation. Preferring the public interest to private benefit, Hughes argued (in one of his eleven written dissents) that government employees should not be granted patents for inventions created as part of their official duties: United States v. Dubilier Condenser Corp., 289 U.S. 178, 224 (1933).
101. Pusey, Hughes, 1:227; National Prohibition Cases, 253 U.S. 350 (1920).
102. As Sutherland noted, the clause was intended to “foreclose state action impairing the obligation of contracts primarily and especially … in time of emergency” such as the Depression. Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 465 (1934), emphasis in original.
103. Stone may have influenced this wording by pointing out to Hughes the scale of the crisis: large banking corporations held the mortgages of hundreds of small farmers, so that society was “confronted with a problem of which Chief Justice Marshall probably never had any conception.” 12 December 1933, Box 75, Stone papers, LC.
104. Sunstein, “Lochner’s Legacy,” 179, 185–86. Without considering Blaisdell, Sunstein suggests that “the takings and contracts clauses … cannot easily be subject to independent judicial reconstruction” (186).
105. Home Building and Loan Association v. Blaisdell, 290 U.S. 398, at 442 (1934); Mason, Stone, 359–64. Olken, “Hughes and Blaisdell,” views the decision in the context of other historical strategies and rulings that limited the reach of the contract clause; but the constitutional text could be stretched only so far, and Hughes and the three liberals voted with a unanimous court in striking down a federal debtor-relief law, the Frazier-Lemke Act, in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). Hughes’s commitment to the societal good likewise determined the inventive holdings in the Gold Clause Cases (1935), which prevented the owners of $100 billion in corporate and government bonds from exercising their express contractual rights and profiting from the government’s devaluation of the currency. On these cases, see Friedman, “Hughes Court,” 1914–18, 1923–27, and 1932.
106. 291 U.S. 502, at 522 and 537.
107. McReynolds quoted in Laura Kalman, “Law, Politics, and the New Deal(s),” Yale Law Journal 108.8 (June 1999): 2187; Friedman, “Hughes Court,” 1904, 1919–20; Hughes, Supreme Court, 195–96.
108. Truax v. Raich, 239 U.S. 33, at 41 (1915); Sentell, “Hughes and Sunderland,” 563; New State Ice Co. v. Liebman, 285 U.S. 262 (1932), and Colgate v. Harvey, 296 U.S. 404 (1935); on chain stores, see State Board of Tax Commissioners v. Jackson, 283 U.S. 527 (1931) and Friedman, “Hughes Court,” 1901–2, 1905–6, and 1911–12.
109. Hughes quoted in Pusey, Hughes, 1:253; as an associate justice, Hughes joined in an opinion that exempted state and local bonds from federal taxation, Editor’s Note, “Charles Evans Hughes,” 965; Brandeis quoted in Friedman, “Hughes Court,” 1909n, 1905–6; Parrish, “Hughes Court,” 299–300.
110. Hughes quoted in Editor’s Note, “Charles Evans Hughes,” 965; Pusey, Hughes, 1:204; Perkins, Hughes, 17; see his “Address to the Attica Chamber of Commerce,” April 1, 1907, in Schurman, Addresses, 152–54 and his speech in Elmira, 3 May 1907, quoted in Danelski and Tulchin, Autobiographical Notes, 144. Charles Evans Hughes, Conditions of Progress in Democratic Government (New Haven: Yale University Press, 1910), 36–45, offers a justification of administrative governance.
111. Southern Pacific, 230 U.S. 537, at 549 (1913); Minnesota, 230 U.S. 352 (1913).
112. Roscoe Pound, “The Causes of Popular Dissatisfaction with the Administration of Justice,” Report of the American Bar Association, 1906, 400–17; Pound, “Justice According to Law,” Columbia Law Review 13 (1913): 20, 44, 30. See Wignor, Roscoe Pound, 123–29.
113. Danelski and Tulchin, Autobiographical Notes, 145; White, Constitution and New Deal, 102–3. In 1904 Hughes’s firm of Carter, Hughes & Dwight was one of the largest in the country, with fourteen lawyers; but it was not the bureaucratic organization that Cravath-influenced firms would soon become. See Hobson, “Large Law Firm,” 10–21.
114. Quoted in Umbreit, Our Eleven Chief Justices, 2:491. Earlier Hughes had warned that “mere bureaucracy—narrow, partisan, or inexpert—is grossly injurious.” Those on the Progressive left were likewise distressed by what Randolph Bourne in 1917 called the “riveting of a semi-military State-socialism on the country.” Quoted in Rodgers, Atlantic Crossings, 279.
115. See the discussions in Wignor, Roscoe Pound, 266–73; Horwitz, Transformation of American Law, 217–20; White, Constitution and New Deal, 116–21; and Hull, Pound and Llewellyn, 95–96, 256–57.
116. Crowell, 285 U.S. 22; St. Joseph Stockyards, 298 U.S. 38 (1936), at 52. For a general discussion see Hendel, Hughes, 98–113 and Friedman, “Hughes Court,” 1910n.
117. Hughes quoted in Hendel, Hughes, 102, 113. See also Ford Motor Co. v. NLRB, 305 U.S. 364 at 373 (1939).
118. 5 June 1931, and Frankfurter to Stone, 4 December 1931, Box 13, Stone Papers, LC.
119. In Standard Nut, 284 U.S. 498 (1932), the Court allowed injunctive relief from a falsely laid tax despite an explicit Rule against such relief in tax cases. See Frankfurter to Stone, 29 February 1932.
120. Stone to Frankfurter, 16 December 1935, Box 13, Stone Papers, LC. The case in question was Colgate v. Harvey, 296 U.S. 404. See also Patton v. United States, 281 U.S. 276 (1930), in which Stone concurred in the decision but not in Sutherland’s opinion regarding the constitutional right to a jury trial, and Great Northern Railway Co. v. Weeks, 297 U.S. 135 (1936), in which the Court invalidated, over Stone’s dissent, a non-discriminatory assessment by state tax officials. See also the exchange of letters between Stone and Frankfurter on the Great Northern decision and Hughes’s responsibility for the Court’s lack of doctrinal consistency in tax cases: 14, 16, and 25 February 1936, Box 13, Stone Papers, LC. When a tax case favored the government, it elicited one of Hughes’s rare written dissents (Helvering v. Butterworth [1933], 290 U.S. 365, 371).
121. Dimick v. Schiedt, 293 U.S. 474 (1935).
122. 295 U.S. 330 at 375 and 384. For his part, Stone thought that the decision was “about the worst performance of the Court since the Bake Shop [Lochner] case…. [It] puts us back at least thirty years.” To Frankfurter, 9 May 1935, Box 13, Stone Papers, LC.
123. Houston, East and West Texas Railway Company v. United States, 234 U.S. 342 at 353 (1914); Currie, “Constitution in the Court,” 1119–21; see above, note 58 and the accompanying discussion.
124. McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33; Apex Hosiery Co. v. Leader, 310 U.S. 469 (both 1940, Hughes writing in dissent).
125. The three liberals joined Hughes’s dissent; Stone wrote a separate dissent urging that Adkins be overruled. As an associate justice, Hughes had supported minimum wage legislation (see Chicago, Burlington & Quincy Railroad Co. v. McGuire, 219 U.S. 549, 567 and Danelski and Tulchin, Autobiographical Notes, 312) and, quoting from his opinion in McGuire, made a strong attack on freedom of contract. See 298 U.S. 587 (1936) at 628; see also Adkins, 261 U.S. 525 (1923). On the motivation of Hughes and Roberts, see Friedman, “Hughes Court,” 1939–53.
126. Jackson quoted in Friedman, “Hughes Court,” 1935; Chicago, Burlington and Quincy Railroad Company v. McGuire, 219 U.S. 549, at 567 (1911); West Coast Hotel v. Parrish, 300 U.S. 379, at 391 (1937), quoted in Friedman, “Hughes Court,” 1938. McGuire is discussed above, at note 66.
127. Sunstein, “Lochner’s Legacy,” 159–62. White, Constitution and New Deal, 221–25, also sees West Coast Hotel (and Blaisdell) as representing a new “living Constitution” theory of interpretation.
128. Quoted in Pusey, Hughes, 2:692–93.
129. Smith in 1936, as quoted in Oscar Handlin, Al Smith and His America (Boston: Little Brown, 1958), 181; Smith, Progressive Democracy: Addresses and State Papers of Alfred E. Smith (New York: Harcourt Brace, 1928); Hoover quoted in Dawley, Struggles for Justice, 369. “I am on the same side now that I was back in the Collier [magazine] days [of the Progressive era],” the muckraking journalist Mark Sullivan wrote in 1935, “The fight was for individualism then and is for individualism now. The enemy [then] was regimentation attempted by big business; the enemy now is regimentation attempted by the government.” When Otis Graham looked at 105 Progressive leaders whose political views toward the New Deal could be determined, he found that 60 opposed it, 40 supported it, and only 5 favored more radical action, with the supporters coming primarily from “social welfare” rather than “good government” reformers, Graham, Encore for Reform, 24, 45.
130. As Barry Cushman has shown (“Rethinking the New Deal Court,” 247, nn 254, 255), the Four Horsemen had strong civil liberties records and one or more of them often voted to sustain the New Liberal regulatory and reform legislation of the “Old Deal.” However, they were even more wary than Hughes of the legislative experiments of the New Deal.
131. “So far as Roberts is concerned,” Frankfurter wrote to Stone, “the Chief must bear … the responsibility in having encouraged the process of disregard of the judicial function that lies between the Nebbia and the Tipaldo cases.” 5 June 1936, Box 13, Stone Papers, LC.
132. Panama, 293 U.S. 388 (1935); Schechter, 295 U.S. 495 (1935), Cardozo quote at 553; my discussion follows that in Friedman, “Hughes Court,” 1923, 1923, 1930–32.
133. Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994), 173 and 99–110, 159–73.
134. Butler, 297 U.S. 1 (1936); Friedman, “Hughes Court,” 1953–60. See Danelski and Tulchin, Autobiographical Notes, 192–93, and 193n, for Hughes’s view that the taxing powers in the General Welfare clause allowed Congress “to appropriate moneys for the promotion of the agricultural interests of the country” and his explanation of his negative vote in Butler (because of the “essentially coercive character” of the AAA). Rodgers, Atlantic Crossings, 340, notes that by 1929 the Farm Loan Act had pumped a billion dollars into the farm economy.
135. Smith v. Kansas City Title and Trust Co., 255 U.S. 180 (1921).
136. See 297 U.S. 1 (1936) at 65–66: After much vacillation, Roberts declares: “Study of all these [views of this issue] leads us to conclude that the reading advocated by Mr. Justice Story is the correct one…. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” See also, Friedman, “Hughes Court,” 1955; Danelski and Tulchin, Autobiographical Notes, 309–10. Hughes had carefully analyzed the role of dicta in the Supreme Court, 165: “Not infrequently a sentence or phrase, or even a paragraph, will get into a majority opinion which does not have majority support and the effect of which one or more of the majority may be desirous of destroying as soon as they get a chance.”
137. On March 2, 1932, Stone complained to Frankfurter that Hughes acted “as though he were the Court,” and that the chief justice assigned opinions to himself “in fields where clearly Brandeis or Cardozo had done some pioneer work….” “Memorandum of Talk with HFS,” Reel 64, Frankfurter Papers, LC.
138. Even Stone admitted that the Railroad Retirement Act was “a bad one.” Stone to Frankfurter, 9 May 1935, Box 13, Stone Papers, LC.
139. 14 February 1936, and Stone’s reply of 16 February, Box 13, Stone Papers, LC.
140. 257 U.S. 501. However, this case involved state taxation of a federal agent. Holmes wrote for the Court; three justices dissented.
141. 285 U.S. 393, at 446.
142. From time to time, Hughes wrote opinions that limited immunity (see Frankfurter to Stone, 30 March 1933, Frankfurter Papers, Reel 64, LC), but usually defined it broadly. On 8 December 1937 Stone complained to Frankfurter that the Court had just missed another opportunity to reverse or revise Coronado (Box 13, Stone Papers, LC). By early 1938, however, Sutherland and Van Devanter had left the Court (replaced by Hugo Black in 1937 and Stanley Reed in the late spring of 1938) and Frankfurter heard rumors of the imminent retirement of McReynolds. Frankfurter to Stone, 14 January 1938, Reel 64, Frankfurter Papers, LC. In his usual precise language, Hughes limited the reach of the decision. See 303 U.S. 376, at 386–87. Hughes to Stone, 23 February 1938, Box 75, Stone Papers, LC.
143. Roosevelt quoted in Friedman, “Hughes Court,” 1932. For the impact on FDR of the British New Liberal legislation of 1906–1914, see Rodgers, Atlantic Crossings, 56, 423–24.
144. 298 U.S. 278, at 317 (1936).
145. Leuchtenburg, “When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman Thesis,” Yale Law Journal 108 (1999): 2077. Thus, Democratic Governor Eugene Talmadge urged his fellow Georgians not to “allow a bunch of Communists to have four more years to appoint the successors to such stalwart men as Chief Justice Hughes, and Associate Justices Butler, McReynolds, Sutherland, and Van Devanter” (at 2089). See also, Leuchtenburg, “Franklin D. Roosevelt’s Supreme Court Packing Plan,” in Harold M. Hollingsworth and William F. Holmes, Essays on the New Deal (Austin: University of Texas Press, 1969), 69–115.
146. My interpretation is broadly consistent with Bruce Ackerman’s argument that the constitution was judicially “amended” between 1936 and 1941. Ackerman, “Constitutional Politics/Constitutional Law,” Yale Law Journal 99 (1989): 453–512 and the works cited in note 9. As Charles Wyzanski, Jr., the New Deal lawyer who was a central participant in the constitutional revolution, told Learned Hand: “it was not really Mr. Wyzanski who won the Wagner cases, but Mr. Zeitgeist.” Quoted in Gunther, Learned Hand, 462.
147. Rodgers, Atlantic Crossings, 414, 415. Crises like the New Deal, Rodgers points, “lead to a frantic rummaging through the existing stock of policy notions” and often allow the adoption that previously had not been politically possible: “The New Deal was a great, explosive release of the pent-up agenda of the progressive past.”
148. See note 68. NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1, at 41 (1937). To justify his support for this expansion of federal authority, Hughes also pointed to the Minnesota Rate Cases as indicative of his broad view of the commerce power. See Danelski and Tulchin, Autobiographical Notes, 312–13, and Minnesota Rate Cases, 230 U.S. 353 at 399 and 431.
149. Friedman, “Hughes Court,” 1964, argues that Jones & Laughlin “merely stated a corollary” to the doctrine outlined in the Shreveport Cases that Congress could regulate intrastate activities that bear “a close and substantial relation to interstate traffic.” But Friedman acknowledges that “the Court had previously refused to draw” this corollary proposition; indeed, as Currie points out (“Constitution in the Court,” 1120–21), many justices, including Hughes, expended considerable energy trying to limit the scope of the commerce clause. Consequently, Jones & Laughlin represents a major change from Shreveport. For Cushman’s slightly different argument that Hughes continued to rely on Progressive era doctrine, see Kalman, “Law, Politics, and the New Deal(s),” 2178.
150. Bedford McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33 (1940), involved a New York City tax on coal, while Apex Hosiery Co. v. Leader et al., 310 U.S. 469 (1940), dealt with a strike that inhibited interstate commerce.
151. Helvering v. Davis, 301 U.S. 619 (1937) upheld the pension provisions of the Act, while Steward Machine Co. v. Davis, 301 U.S. 548 (1937) validated its sections on unemployment.
152. 301 U.S. 619, at 639 for discussion of the procedural issue; Frankfurter to Stone, 2 June 1937, Box 13, Stone Papers, LC.
153. For two of Hughes’s dissents, see the cases cited in note 150. Friedman, “Hughes Court,” 1974–81, discusses the impact of the change in the composition of the Court. Data presented in C. Herman Pritchett, The Roosevelt Court (1948; Chicago: Quadrangle Books, 1969), 32–38, reveals the ideological shift in the Court through an analysis of the dissents of Hughes and Roberts, whom he labels as “moderates” over the entire period. From 1931 to 1935, Hughes and Roberts each voted against the majority 15 times (as compared to an average of 55 dissenting votes by the liberals: Stone, Cardozo, and Brandeis). In 1937, Hughes voted with the majority on every occasion. By 1940, when justices appointed by Roosevelt were a majority, Hughes voted in the negative in 24 cases and Roberts in 32. White, Constitution and New Deal, 227–28, argues that Hughes remained committed to traditional commerce clause doctrine, only reluctantly joining Stone’s opinion in United States v. Darby Lumber Co., 312 U.S. 100 (1941) that went far beyond Jones & Laughlin in breaking new doctrinal ground.
154. Tomlins, The State and the Unions; Dawley, Struggles for Justice, 383; Leff, New Deal and Taxation, table 1, shows that in 1940 the income and estate taxes collected from wealthy Americans accounted for 23 percent of federal revenue while the excise, tariff, and social insurance taxes paid mostly by (the much greater number of) less-wealthy citizens brought in 55 percent.
155. My discussion of Belloc follows that in Emy, Social Politics, 290–93; Emy’s comment appears on 291.
BY: JAMES A. HENRETTA