Writing

12 June 2008
Here is my final paper for Modern American Legal History. I spent so much time writing it I figured I might as well put it somewhere where someone *might* read it.

From Black and White to Gray:
Liberalism’s Transformation in the Twentieth Century

     Like the developments of legal thought throughout modern American history, the concept of liberalism has experienced many different phases and characterizations: legal doctrine has shaped the idea of liberalism throughout time, as liberal thought has simultaneously influenced the relationships between peoples and governments. In Liberalism and Social Action, John Dewey writes that the liberal spirit is “a social organization that will make possible effective liberty and opportunity for personal growth in mind and spirit of all individuals.” He also notes, however, that it took years of philosophizing and observing society for liberalism to arrive at that definition. Three overarching themes of legal doctrine developed between Reconstruction and the Civil Rights Era: civil rights, contract and labor law, and government intervention. We can trace the evolution of liberalism through the lenses of these three themes.
     The first theme, civil rights, began after Reconstruction with a narrow interpretation of the 13th and 14th Amendments in The Civil Rights Cases and Plessy v. Ferguson. Drawing on the individualistic and laissez-faire character of early liberalism, the first era of civil rights effectively enforced racial discrimination rather than allow government to regulate relationships between individuals. The second era of liberal civil rights interacted strongly with liberal labor law, as African Americans began winning their rights through cases unjust treatment in the workplace. Finally, liberal civil rights dialogue changed throughout the twentieth century to be interpreted as governments equally helping all individuals advance in society, as characterized by Brown v. Board of Education in the third and final era.
     The second theme, contract and labor law, began with a liberalist interpretation of the freedom of contract in Lochner v. New York, in what is already called the Lochner Era or laissez-faire liberalism. The liberal view of contracts eventually evolved to mean that the government should regulate labor standards for the wellbeing of citizens in West Coast Hotel Co. v. Parrish. The decision in this case marked the end of the Lochner Era, and a new era of government regulation helped win labor rights for African American workers.
     The third and last theme, government intervention, also began in the Lochner Era with the conception of limited intervention in individuals’ contracts. Throughout the early part of the century, however, liberalism transformed into a new “progressive” era that emphasized improving society and civilization at the expense of limited government with such cases as Buck v. Bell. The New Deal emerged out of this conflicting history of liberalism by de-emphasizing social intervention but still believing in “the need to protect individuals, communities, and the government itself from excessive corporate power” (Brinkley, 9). This emphasis on curbing corporate power can be seen in A.L.A. Schechter Poultry Corp. v. United States and United States v. Carolene Products Co. After the New Deal Era, liberalism transformed from a corporate focus to rights-based liberalism, as discussed in the civil rights section.
     In terms of civil rights, the first era of liberalism is marked by a narrow interpretation of the law reminiscent of John Locke and Adam Smith. Locke’s central political philosophies are that governments should protect the natural rights of individuals, natural law is supreme over positive law, and “the great enemy of individual liberty was thought to be government because of its tendency to encroach upon the innate liberties of individuals” (Dewey, 1935: 17). Similarly, Smith holds “that the activity of individuals, freed as far as possible from political restriction, is the chief source of social welfare and the ultimate spring of social progress” (Dewey, 1935: 19). The viewpoints of Locke and Smith stress individualism and a laissez-faire approach to government. Although writing before the term “liberalism” came into effect, Locke and Smith can be called liberal philosophers because this idea of individual determination and freedom from interference was originally a key element of liberal thought. This idea that individuals should be free from government intervention is very prominent in the two landmark cases of this first era of liberal civil rights: Civil Rights Cases and Plessy v. Ferguson.
     The Civil Rights Cases were five similar cases consolidated into one issue to be decided by the Supreme Court in 1883. The outcome was significant because it set a precedent for narrow interpretations of the 13th and 14th Amendments, as well as ruled the Civil Rights Act of 1875 unconstitutional. Of the consolidated issues, two cases, Stanley and Nichols, involved racial discrimination in an inn or hotel, Ryan and Singleton dealt with discrimination in theaters, and Robinson and wife concerned discrimination in railroad cars. The Court established a narrow reading of the 13th Amendment by stating “the denial of equal accommodations in inns, public conveyances, and places of public amusement… imposes no badge of slavery or involuntary servitude upon the party” (Civil Rights Cases: Syllabus). The liberalism of this era can shed light on this narrow interpretation because to expand the definition of “slavery or involuntary servitude” would have been seen as overstepping the boundaries of government. In the opinion of the court, Justice Bradley wrote, “it would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make” (Civil Rights Cases: Opinion).
     The narrow interpretation of the 14th Amendment in the Civil Rights Cases is slightly more complicated than that of the 13th Amendment. The due process and equal protection clauses in Section 1 of this amendment begin with “no State shall…” This lead to the limited interpretation that “it is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment” (Civil Rights Cases: Opinion). Since the liberalism of this time was defined by limited government interference in people’s relations, it was a liberal view to believe that the government can only act negatively by prohibiting states from infringing on people’s rights; government cannot act positively by enforcing equal relations between men and forcing people to act indiscriminately. As an example of this liberal view, the opinion of the court provides the example of contracts. Justice Bradley wrote:

 The Constitution prohibited the States from passing any law impairing the obligation ofcontracts. This did not give to Congress power to provide laws for the general enforcement of contracts, nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts” (Civil Rights Cases: Opinion).

Although Locke’s central philosophy was the natural rights of life, liberty, and property, the Lockean liberal view of this era stated that legislation cannot fully prevent individuals from violating other people’s life, liberty, and property, for the “wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual” (Civil Rights Cases: Opinion). Accordingly, the Civil Rights Cases’ decision to protect individuals only from state-sanctioned discrimination was most likely a means for the Court to preserve the social status quo of the prejudicial post-Reconstruction era. Nevertheless, this first era of civil rights liberalism used Locke and Smith’s theories about limited government intervention to preserve the legality of individual discrimination.
     In the same era, Plessy v. Ferguson used the Civil Rights Cases and limited-government liberalism as precedent to establish the “separate but equal” doctrine. The defendant in this case, Plessy, was of one-eighth African descent, and the conductor of a railway tried to force him to move to the colored section of the train. The statute of Louisiana, acts of 1890, c. 111 state that equal, but separate, accommodations must be provided for the different races on trains, and both noncompliance by passengers or conductors to enforce this practice would be met by fines or jail time. Besides limited government, another aspect of liberalism in this era was the view that political law shall not interfere with natural law (in this case, the natural law would not allow forced commingling of the races). In the Opinion of the Court, Justice Brown acknowledged that “the object of the [14th] amendment was undoubtedly to enforce the absolute equality of the two races before the law,” but it would be unconstitutional to require “a commingling of the two races upon terms unsatisfactory to either” (Plessy v. Ferguson, Opinion). This opinion was in line with the liberalist interpretation in the Civil Rights Cases that government can only act negatively by prohibiting state-sanctioned discrimination, and cannot positively by writing laws that require citizens to treat everyone equally. Also importantly, this first era of civil rights claims that “laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other” (Plessy v. Ferguson, Opinion). In the same Opinion, however, the Court noted that the races are not equal when it states that a white man required to sit in a colored coach could sue “for being deprived of his so-called property”, but if a colored man is assigned to the colored coach, “he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man” (Plessy v. Ferguson, Opinion). Even this overt racism complies with the liberalist thinking of this era, because the all-white Supreme Court believed that racial separation was part of the natural law, which should not be superceded by political law: “legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences” (Plessy v. Ferguson, Opinion). This era of civil rights liberalism portrayed in The Civil Rights Cases and Plessy v. Ferguson would continue well into the twentieth century.
     The liberalist approach to civil rights began to change during the New Deal Era, when African Americans used labor law as a vehicle to advance their civil rights. Noted African American sociologist Charles Johnson declared in the 1940s that “the biggest single forward surge of Negroes into the main stream of American life in the past ten years has been their movement into the ranks of organized labor” (Goluboff. 42). Instead of the natural law liberalism of the Plessy era, this new era in liberal civil rights doctrine can be characterized by Thomas Hill Green’s belief in “the conceptions of a common good as the measure of political organization and policy, of liberty as the most precious trait and very seal of individuality, [and] of the claim of every individual to the full development of his capabilities” (Dewey, 33). The New Deal Era was a transition period for civil rights. Due to Roosevelt’s economic reforms, civil rights activists saw labor law as the best way to bring their interests to the forefront of American legal thought: “the central civil rights dilemma of the era before Brown was whether and how civil rights lawyers would integrate the various strands of labor rights… into civil rights practices largely focused on African Americans” (Goluboff, 10). The Department of Justice’s Civil Rights Section and the legal department of the NAACP used New Deal labor and unions doctrine to win equal protection in the workplace, and used the 13th Amendment to protect against some of the worst abuses of African American migrant workers that classified as involuntary servitude. Lawyers who believed strongly in equality were in a difficult situation: “they fought for economic advancement within segregated workplaces even as they lodged principled objections to segregation” (Goluboff, 14). In 1938, the liberal thinkers of this civil rights era won an important case in New Negro Alliance v. Sanitary Grocery Co., which held that “fair and equitable conditions of employment on the part of persons of any race, color, or persuasion” are a government-sanctioned right for everyone (New Negro Alliance v. Sanitary Grocery Co.). This was a sharp departure from the government nonintervention views of the Plessy Era liberals. Another landmark occurred in 1941, when the Fair Employment Practices Commission (FEPC) required that companies with government contracts not discriminate on the basis of race or religion. Regarding the FEPC, the African American newspaper Amsterdam News wrote, “If President Lincoln’s proclamation was designed to end physical slavery, it would seem that the recent order of President Roosevelt is designed to end, or at least curb, economic slavery” (Goluboff, 38). Thus, the liberal belief of developing “every individual to the full development of his capabilities” transformed this era of civil rights to curb racial discrimination through labor law.
     World War II further shaped these liberal ideas about civil rights: the war united Americans of both races at home and abroad, and lessened the focus on racial separation. The National War Labor Board required the elimination of wage differentials based on race, and African Americans waged a “Double V” campaign for victory against fascism both at home and abroad (Goluboff, 36). The war era, like the New Deal Era before it, emphasized the liberal view of self-determination, and the laws of the time reflected that by enforcing equality in the workplace.
     The final era of liberal civil rights was marked by the landmark Supreme Court case Brown v. Board of Education of Topeka in 1954. This era can be best understood by the writings of liberal philosopher Jeremy Bentham. Bentham believed that every individual should have equal opportunity before the law, and “the mere formulation of [Bentham’s] doctrine was an attack upon every inequality of status that had the sanction of law” (Dewey, 23). He rejected the idea that innovative policy is worthless because it does not have the sanction of experience or societal patterns. In stark contrast to the liberalist views of Locke and Smith, Dewey writes, “Bentham’s influence is proof that liberalism can be a power in bringing about radical social changes” (Dewey, 25). There are two important distinctions that separate Brown from the civil rights cases of the late nineteenth century. First, Chief Justice Earl Warren concluded that the “separate but equal” doctrine could not apply to public education, and that the plaintiffs had been denied their equal protection rights of the 14th Amendment. Secondly, during the Brown era, “a therapeutic ethos had taken such hold of American culture that psychological had replaced reputational harm as the natural form of the stigma argument” (Goluboff, 243). Lawyers in the Brown case used Kenneth and Mamie Clark’s doll-studies and other evidence as proof that school segregation causes psychological harm to African American children: “they extracted from the multilayered system of Jim Crow the psychological wounds such segregation inflicted” (Goluboff, 239). Therefore, Brown v. Board of Education marked a departure from Locke and Smith’s liberalism of the Plessy Era and the beginning of modern American civil rights, characterized by Bentham’s philosophy of equal opportunity and self-realization.
     Turning to labor and contract law, the first liberal era was the Lochner Era, characterized by the Supreme Court case Lochner v. New York. Eleven years prior to Lochner, however, the New York Court of Appeals set the stage for laissez-faire liberalism with In Re Jacobs. This case held that it was illegal for states to prevent cigar rollers from working in their own tenement homes. Jacobs represents the Gilded Age courts’ vision of “free labor” by assuming that a cigar roller is a self-employed artisan and limiting his practices would be to “deprive him of his property” (Forbath, 39). Forbath notes that “the income and working conditions of homeworkers in the sweated trades like cigarmaking were significantly worse than those of factory workers in the same industries,” but this fact was overlooked in favor of laissez-faire liberalism (Forbath, 40). Jacobs set the stage for Lochner v. New York, the landmark case that overturned a law that determined the maximum work hours for bakers, and established that “the general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment” (Lochner v. New York: Syllabus). In explicit terms, the court wrote:

“There is no reasonable ground, on the score of health, for interfering with the liberty of the person or the right of free contract, by determining the hours of labor, in the occupation of a baker. Nor can a law limiting such hours be justified as a health law to safeguard the public health, or the health of individuals following that occupation.”

In Re Jacobs and Lochner v. New York set the precedent for labor law at the turn of the twentieth century, characterized by the 14th Amendment’s liberty of contract and laissez-faire liberalism. Although intended to promote “free labor”, these cases actually served to provide poor working conditions and unlimited hours for America’s workers.
     In stark contrast to Lochner but in tune with the societal wisdom of the time, Muller v. Oregon ruled that the labor conditions and hours of employment could be regulated by law for women. The court did not make this ruling to overturn Lochner, but rather placed women out of the court’s regular jurisdiction because the woman’s physical structure put her “at a disadvantage in the struggle for subsistence” and “history disclosed that woman has always been dependent upon man”; therefore women should not be expected to work the same hours as their male counterparts. Muller also hinted at a shift toward government intervention in society when it stated, “As healthy mothers are essential to vigorous offspring, the physical wellbeing of woman is an object of public interest”. Decided only three years after Lochner, this case upholds liberty of contract for men but uses societal government intervention to limit and “protect” women.
     The New Deal permanently changed the way that Americans thought about issues of labor. With the economy suffering from the Great Depression, the government under President Franklin Roosevelt issued many new programs to revive the economy, provide relief to the needy, and reform the financial system. The economic panic of the Great Depression was the means by which people began to view liberalism in terms of helping every citizen realize his potential, rather than the outdated “freedom of contract” interpretation. Dewey writes that a change came over the spirit of liberalism during this time: “It came surely, if gradually, to be disassociated from the laissez-faire reed and to be associated with the use of governmental action for aid to those at economic disadvantage and for alleviation of their conditions” (Dewey, 30). In 1933, President Roosevelt introduced the National Industrial Recovery Act (NIRA), which authorized the President to regulate banks and encouraged government spending on public works to stimulate the economy. Since it encouraged government intervention in business, NIRA may seem in contrast to the “freedom of contract” of the Lochner Era. New York Senator Robert F. Wagner, a longtime friend of labor, wrote of NIRA, “the right to bargain collectively, guaranteed to labor by section 7(a) of the Recovery act, [is] a veritable charter of freedom of contract; without it there would be slavery by contract” (Goluboff, 28). Wagner’s sentiment represents a brief moment in the history of labor liberalism, before the tide again shifted to more moderate government intervention. In 1935, NIRA was overturned unanimously by the Supreme Court in A.L.A. Schechter Poultry Corp. v. United States. This ruling declared that NIRA allowed the national government to infringe upon states’ authority, expanded the Commerce Clause unreasonably, and violated the nondelegation doctrine by giving legislative powers to the executive branch. The economic desperation of the New Deal era caused Americans to view liberalism in terms of helping people succeed financially, rather than focusing on a narrow interpretation of “freedom of contract”. Although Schechter slightly reduced the national government’s New Deal power, liberalism’s doctrine of supporting workers’ rights remained throughout the remainder of the twentieth century.
Indeed, the 1937 Supreme Court case West Coast Hotel Co. v. Parrish echoed this new interpretation of liberalism as “associated with generosity of outlook” and refuted the absolute “liberty of contract” laws sanctioned in Lochner. Echoing Muller’s sentiment that “The health of women is peculiarly related to the vigor of the race,” West Coast Hotel Co. v. Parrish upheld the constitutionality of minimum wage laws and states “that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses” (West Coast Hotel Co. v. Parrish: Opinion). The decision states that government has the power to restrict freedom of contract: that the power to restrict it “may be exercised in the public interest in respect to contracts between the employer and employee is undeniable” (West Coast Hotel Co. v. Parrish: Opinion). Emphasizing liberalism’s new commitment to helping citizens realize their full potential, Chief Justice Hughes wrote, “that both parties are of full age and competent to contract does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one part to the contract shall be protected against himself” (West Coast Hotel v. Parrish: Opinion). This statement that government may intervene on behalf of public health was completely contradictory to the Lochner decision. Clearly, the New Deal permanently changed the liberalism of labor to place “freedom of contract” rights second in importance behind public health and workers’ welfare, paving the way for civil rights to emerge through labor cases in the 1930s and 40s.
     The final theme of modern American liberalism is government intervention. In a way similar to labor liberalism, the liberal view of government intervention also began with the laissez-faire doctrine of the Lochner Era, which believed that governments should not interfere in individuals’ rights to contract. In the 1920s, however, before the transformation of labor liberalism, liberal thinkers of the social “progressive” movement started favoring government intervention in order to improve society and civilization. Some quintessential “progressive” reforms were as diverse as prohibition, the Food and Drug Administration, immigration reform, environmentalism, the Sherman Anti-Trust Act, workers’ compensation, anti-prostitution, and birth control. Many of these reforms, especially the ones concerning various birth control mechanisms, would today be considered eugenics, such as the “Selective Breeding” method in Henry Garrett’s General Psychology starring Martin Kallikak (Novak lecture 4/24/08). The justification for this interpretation of liberalism can be found in the way Dewey describes Bentham’s philosophy: “there was nothing in his fundamental doctrine that stood in the way of using the power of government to create, constructively and positively, new institutions if and when it should appear that the latter would contribute more effectively to the well-being of individuals” (Dewey, 24). Other liberals were not so positive about the constructiveness of “progressive” reforms; Carlyle called the existing social order “anarchy plus a constable” (Dewey, 31).
     The 1927 Supreme Court case Buck v. Bell illustrates the invasive nature of government intervention in the “progressive” era. Under the 14th Amendment, this case upheld a Virginia statute allowing the sexual sterilization of inmates who were “afflicted with an hereditary form of insanity or imbecility” (Buck v. Bell: Syllabus). In harsh language, Justice Holmes wrote, “instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind” in order to “prevent our being swamped with incompetence” (Buck v. Bell, Opinion). It is apparent from this case, and others in the “progressive” era, that society was very concerned with evolution and the continuation of strong American stock. Willrich writes that during this era, “Even the most moderate progressives expressed hope that, with the right combination of environmental and eugenic reforms, urban governments might dramatically reduce or even eliminate crime within a generation or two” (Willrich, 86). This eugenics case illustrates an interesting transition period between the Lochner era and the New Deal, because liberal thinkers were in favor of government intervention to improve society as a whole, but were not interested in helping every individual improve herself (as evidenced by the forced sterilization of Carrie Buck in this case).
     During the New Deal, liberal government intervention was transformed to mean helping every American’s socio-economic standing. Long gone were the Lochner Era days of liberty of contract, and liberals believed that government should intervene to help individuals, not just society (as in the “progressive” era). Public health was of great concern to the Supreme Court when they decided United States v. Carolene Products Co. in 1938. The Court ruled against the large Carolene Products Company in writing that filled milk is “injurious to the public health, and its sale constitutes a fraud upon the public” (United States v. Carolene Products Co.: Syllabus). It ruled that the Filled Milk Act of Congress banning the sale of these non-nutritious products was permissible under the power to regulate interstate commerce and the due process clause. Science played a role in this case because nutritionists determined that filled milk did not have the essential vitamins and minerals present in butter fat, and that the sale of these cheap products to lower-class citizens was indeed a “fraud upon the public”. In this way, the Court showed that liberal government intervention was still in favor from the “progressive” era, but the New Deal’s influence prompted the Court to protect everyone’s rights to proper nutrition, unlike the “progressive” protection of people with strong genes.
     Liberalism is not a static theory with one definition; rather, it is a way of thinking about the relationships between government and society that has undergone fundamental changes throughout the twentieth century. Modern American liberalism can be viewed under three lenses: civil rights, labor and contract rights, and government intervention. Through landmark court cases and observations of American society, we can trace the development of liberalism from the laissez-faire constitutionalism of Lochner and Plessy, to the cases that sanction government intervention in improving American life, such as Brown v. Board of Education and United States v. Carolene Products Co.. Liberalism cannot be separated from American society as it transforms from one liberal doctrine to another, and it will be interesting to see how liberalism continues to grow and change throughout this next century.