Trying To Simplify The Thirteen Colonies

July 8, 2021June 4, 2023 ~ Blue Cereal

Given my penchant for delusions of grandeur, I opted not to commit to much this summer other than attending a single AP English institute and gradually working through a long list of “to do” stuff around the house. My hope was to make noticeable progress on a book I kinda laid the groundwork for years ago when I began adding “Have To” History articles to this site.

The idea was to offer students, teachers, or other interested parties engaging summaries of key figures, events, or issues in history which they maybe didn’t actually want to know about but for some reason had to – for a class, for a paper, or to better fake their way through an argument on social media.

The idea is solid, even if implementation to date has been spotty. It’s also one of the most utilized sections of the website – so who saw that coming?

After publishing “Have To” History: Landmark Supreme Court Cases, which fits the theme nicely, and “Have To” History: A Wall Of Education, which kinda doesn’t but I liked the topic and wanted to keep the name, I’m returning to the initial premise in its purist form. “Have To” History: Stuff You Really Don’t Want To Know About The 25 Most Boring Issues & Events In American History will target those subjects that seem to show up on every course outline, curriculum guide, and standardized test year after year despite the fact that we can never quite remember what the hell they were or why they mattered.

I surveyed thousands of teachers and students (well, OK – I asked, like… seven or eight of them) which topics were hardest to teach, care about, or remember, and selected two dozen of the most common responses. The Whigs. The Bessemer Process. The Interstate Highway System. All real knee-slappers in their own way, but so few Crash Course videos or feature films to substitute for an actual lesson plan.

Many of the responses were variations of “trying to remember stuff about the original thirteen colonies.” Most of us do pretty well with Jamestown, at least in its earliest incarnation, and we can fake our way through the Puritans or Roger Williams. Somehow, though, we’re expected to juggle things like joint-stock company charters vs. proprietary charters or remember which sections relied most heavily on the export of natural resources and how that shaped their feelings about potential rebellion.

If I’m being completely honest, it’s been the most challenging chapter I’ve tackled so far. The subject simply does not lend itself to the predictable formatting and pithy summarization I find most appealing about the whole project. To complicate matters, it’s also likely to be the first chapter of the finished book – meaning I don’t particularly want to alienate or confuse readers right out of the gate.

After what feels like several millenia of wrestling with it, I have a rough draft of what might be the chapter about the thirteen colonies. At the moment, it’s subtitled “Three (or Four) Regions – Three (Evolving) Formats – Three Approaches To Religion.”

I know. Even the subtitle needs work.

Nevertheless, I’ve posted the initial draft on “Have To” History right here on Blue Cereal Education. To keep it at least somewhat manageable, it’s currently broken into two parts. I’d love for you to give it a readthrough and let me know what you think.

Like, seriously – I’m looking for thoughts and feedback, good, bad, or indifferent, from any direction on this one. Your comments are welcome below or you can email me at [email protected].

In the meantime, I’m moving on to other chapters and will return to this one when I can do so with fresh eyes and new energy. I look forward to your responses.

“Have To” History: The Thirteen Colonies (Part One)

“Have To” History: The Thirteen Colonies (Part Two)

The Interstate Commerce Act & The ICC (from “Have To” History)

June 4, 2021June 4, 2023 ~ Blue Cereal

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About… the Interstate Commerce Act & the Interstate Commerce Commission

Three Big Things:

1. After several states attempted to limit the power of railroads and grain storage facilities on behalf of farmers and other citizens, Congress passed the Interstate Commerce Act (1887). This established the Interstate Commerce Commission (ICC) to regulate railroads, including their shipping rates and route choices.

2. The ICC was the first federal regulatory agency; it’s “success” spawned hundreds of others in subsequent decades. When you hear people complain about “big government,” these are a big part of what they mean. At the same time, they remind us that economic systems are not natural rights; they’re practical mechanisms designed to serve the largest number of people in the most efficient ways possible – at least in theory.

3. Ideally, regulatory agencies attempt to balance the good of society and the general public with the rights of companies to make reasonable profits from providing useful goods and services. They oversee “public services” – things considered essential for most citizens but which don’t easily lend themselves to a competitive marketplace due to the infrastructure required or the necessary scale of the service.

Context

The second half of the nineteenth century was one of America’s greatest (and most controversial) eras of expansion. Rugged, individualistic homesteaders navigated bureaucracy and accepted government oversight to secure their own plots of government-sponsored land in the west, where the government was hard at work clearing out the local populace on their behalf. Railroads, arguably the most poignant symbol of progress in all of Americana, were bravely, capitalistically accepting massive government land grants in exchange for laying their tracks across the Great Plains and finally connecting one coast with another. Along the way they manipulated local townships into catering to their every fiscal whim, lest they destroy them by altering course and instead bestow their blessings on communities more willing to kiss their caboose.

For railroads, more miles of track, continued national expansion, and the vast quantities of crops farmers were shipping further and further from where they were grown meant increased profits and political influence. For farmers, on the other hand, more land, technological advances, and increased production meant lower prices, endless struggles, and increased debt just to stay in the game. Eventually, traditionally individualistic farmers began forming collectives – the Grange, the Farmers’ Alliance, etc. – and pressuring their state and local governments to balance the scales a bit. They weren’t looking for handouts, just some restraints on what they saw as unchecked corporate power and greed. It wasn’t long before other segments of society began adding their voices in support.

Regulating For The Public Good

In Munn v. Illinois (1877), the Supreme Court determined that it was perfectly constitutional for a state to regulate industries within its borders, including capping the amounts grain elevators and storage warehouses were allowed to charge for their services. As the Court explained,

When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. “A body politic,” as aptly defined in the preamble of the Constitution of Massachusetts, “is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”
This does not confer power upon the whole people to control rights which are purely and exclusively private… but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government.

In other words, capitalism is all very fine and well, and the individual’s (or even the corporation’s) right to property and profit is important – but only because this economic approach presumably serves a larger good. The U.S. doesn’t practice a form of free market economics because it’s holy and just to do so – it’s a pragmatic decision based on the perceived shortcomings of alternative economic systems in comparison. (To paraphrase Winston Churchill, “Capitalism is the worst economic system except for all those other forms that have been tried from time to time.”)

Munn marked as well as anything the birth of the idea that governments can and should regulate industries deemed essential to the general welfare. At the time, that primarily meant stuff related to farming and the distribution of crops, but it would eventually encompass any number of public “utilities” (electricity, water, gas, etc.) as well as some transportation systems, television and radio broadcasting, and even trash pickup.

Many would argue that as society and technology continue to evolve, the same sorts of regulation should apply to internet access, cell phone plans, and even health care and other medical services. While it’s usually pretty easy to find a new burger joint if the one you liked before starts skimping on fries or changes their menu, it’s harder to change gas companies. The local sewer service rarely competes for your business, and only a small percentage of American homeowners get to actually choose who provides their electricity – let alone at what rate. Anytime laissez-faire capitalism would result in an “essential” service being reserved for the elite few, government steps in and makes everyone play nice. Companies providing valuable services deserve to make a reasonable profit, but not at the cost of the larger social good – or so the reasoning goes.

In the late nineteenth century, however, it was primarily grain storage and railroad rates.

The Commerce Clause Wins Again

Not quite a decade after Munn, the Court revised its opinion while pretending it was simply picking up where it left off. Wabash, St. Louis and Pacific Railway Company v. Illinois (1886) clarified that while states had the right to regulate industries within their borders, that power didn’t extend beyond state lines. Just because a railroad route began in Chicago, that didn’t mean the Illinois legislature could dictate shipping rates or other policies as it choo-choo-ed through Iowa or Missouri. This was “interstate commerce” in the truest sense of the term, making it the exclusive province of Congress – whether they chose to act on it or not.

Congress finally took the hint and created the very first federal “regulatory agency” – the Interstate Commerce Commission – in 1887. The ICC was charged with overseeing railroads and shipping of all sorts, and set strict guidelines for how the railroads could do business. Rates had to be the same for short trips as for long, and for all customers, however much or little they shipped. Railroads couldn’t even offer special packages for “preferred destinations.”

The specific rules weren’t the important part, however. These were modified or eliminated as technology, transportation, and society evolved. The important thing was the idea that government could and should set limits on important industries for the good of society. In practice, this usually means federal government. It’s nearly impossible today to find a good or service functioning purely “intrastate.” States can sometimes add to regulations while the good or service is withing their purview, but not beyond.

Over the next century, hundreds of federal agencies would be created in the image of the ICC. While Congress still established guidelines and priorities, agency directors and bureaucrats were left with the detail work – writing the actual rules and at times even taking part in enforcement. When you hear people complain about the unending nightmare of red tape, small print, and regulatory burdens on pretty much everything, this is what they mean. The positive side is that the meat you bought at the store today is probably not rotten and your kids’ clothes probably won’t burst into flames anytime the sun is too bright. The negative side is that unchecked bureaucracy tends to grow like the demonic kudzu and has proven nearly impossible to restrain, let alone prune back. No one can even agree on how many federal regulatory agencies there are, let alone which ones are necessary or what at each of them is actually in charge of.

The ICC was dissolved in 1995 after most of its regulatory power had been reduced or stripped away. Its few remaining functions were transferred to yet another agency – the “Surface Transportation Board” (as opposed to all those other sorts of transportation) which operates under the “U.S. Department of Transportation.” The Secretary of Transportation, in turn, reports directly to the President.

How Do I Remember This? (And Why It Matters)

Much of American history can be viewed as an ongoing struggle between freedom and security – nationally, locally, legally, socially, and – as in this case – economically. Just like in school, too little freedom stifles innovation and productivity; too much freedom leads to chaos, abuse, and a breakdown of the system.

The Interstate Commerce Act and ICC were the federal government’s first major effort to restrict what big business could and couldn’t do in an effort to ensure the results served everyone, not just those already at the top of the economic ladder. The resulting arguments would sound surprisingly familiar nearly a century-and-a-half later. Is it better to let big business run free or rein it in from time to time? Is government better or worse than raw capitalism at meeting the needs of the people as a whole over time? Do the basic rights guaranteed to American citizens as individuals apply to corporations as well?

If the answer to any of these questions seems obvious or easy, you’re doing it wrong.

The ICC, while no longer with us, remains the granddaddy of all federal bureaucracy and regulation. From the “alphabet agencies” of the New Deal to the half-dozen different agencies which today dictate the minutia of salmon treatment, processing, costs, transportation, and preparation long before you squeeze lemon on it at your local chain restaurant – they can all be traced back to the Interstate Commerce Commission… for better or worse.

What You’re Most Likely To Be Asked

It’s unlikely you’ll be asked to recognize or analyze the language of the Interstate Commerce Act itself (it’s not that readable). Instead, make sure you understand its connection to pretty much everything else going on at the time. It’s also a nice precursor to discussing populism (the late 19th century version) or even the Progressive movements of the early 20th century. They were all about using government to balance the power of big business against the needs of the “common man.”

In APUSH, Period 6 (1865-1898) is packed with standards related to economic development and industrial growth. The rest mostly involve westward expansion and the farmers movement (“populism”). The ICC is about both, particularly in relation to one another. Knowing the basics will help you add relevant details for any prompt related to government regulation, important Supreme Court decisions of the nineteenth century, or early efforts by farmers to push back against big businesses. It should always be mentioned when speaking or writing about railroads in this period as well. It may not be the single most important thing from this half-century, but it connects to almost everything else happening at the time – and that makes it mighty useful for making yourself look knowledgeable. (KC-6.1.III, KC-6.3, KC-6.3.II, and others)

Utah’s Core Social Studies Standards pose a question many teachers love asking in some form:

How could industrial leaders be considered both “captains of industry” and “robber barons”? (U.S. II Strand I – Industrialization)

It’s a topic typically addressed while covering the Gilded Age (closer to the start of the twentieth century), but it’s a great chance to reference events associated with the creation of the ICC. Railroads were essential to American growth and progress, as were grain storage facilities, banks, and other “wicked witch” industries of the late nineteenth century. At the same time, they tended to exploit and discard anyone non-essential to their continued growth and power. It was capitalism at its most dichotomous (the whole point of the question).

If you’re not feeling that bold, chances are good you’ll be asked something along the lines of this substandard from Utah. Some variation of this is present in over half of all state social studies standards:

Students will assess how innovations in transportation, science, agriculture, manufacturing, technology, communication, and marketing transformed America in the 19th and early 20th centuries. (U.S. II Standard 1.1)

At the very least you should recognize the ICC as the first federal regulatory agency and railroads as the first federally regulated industry.

Bonus Points: How To Sound Like You Know More Than You Do

Congress’s authority to regulate interstate commerce is found in Article I, Section 8 of the U.S. Constitution. As a practical matter, this means that Congress can regulate almost anything by tying it in some way to interstate commerce – a power confirmed by the Supreme Court a half-century before in one of those “must know” cases, Gibbons v. Ogden (1824). Combined with the “Necessary and Proper Clause” (also in Article I, Section 8; confirmed by McCulloch v. Maryland, 1819), Congress and its regulatory power became virtually unchallengeable. Throw in details like what’s covered above, then thoughtfully note that this same basic tension – big government vs. small, the Hamiltonian approach vs. the Jeffersonian approach, etc. – is still a fundamental source of conflict between the two major parties today. (You’ll have literally covered the entire range of American history in a single observation.)

If your teacher seems to lean a bit conservative (they gripe about “those people” or refer to the Civil War as “the war of Northern Aggression,” etc.), you might ingratiate yourself by referring to the current web of federal regulations (which started with the ICC) as “Kafkaesque.” Kafka was a novelist who specialized in the bizarre, especially when it involved protagonists overwhelmed by systems or powers beyond their understanding or control but forced to go along with them anyway. Remember the guy who wakes up as a giant cockroach one day and we never find out why? That was his. “Kafkaesque” is a nice literary touch and should tingle their little conservative hearts without actually committing you to any particular worldview.

Above all else, avoid taking easy positions on the “good” or “bad” of railroads, regulation, farmers’ demands, or even the ICC itself. Always reference specifics while nevertheless acknowledging the inherent complexity and the valid claims of both (or all) sides – freedom, competition, and capitalism on one side and a reasonable opportunity for individuals to succeed (or at least survive) on the other. That’s what makes it interesting – the lack of easy answers.

“Have To” History: Landmark Supreme Court Cases (Promo & Supplementals)

August 22, 2020June 4, 2023 ~ Blue Cereal

So I’ve written and published a book of important Supreme Court cases:

I’ve considered blogging about the process itself in hopes it might help others considering something similar, but I’m pretty sure the way I approach most things is roundabout and unnecessarily convoluted and would probably make any reasonable person want run from the room screaming. I will say this, though – it’s an amazing feeling to finally have it done. It’s also overwhelming the number of things that go wrong in the process itself and the volume of errors and problems you discover the first time your baby finally goes live – all of which can be traced back to me one way or the other.

Don’t worry, though – everything in it is fixed and practically perfect now. You should absolutely buy a few dozen copies. They make great gifts, look good on any bookshelf (at home, school, or other workplace), and they’re just the right thickness to go under unbalanced tables or chairs or give a little boost to your computer when live conferencing so your chin doesn’t look chubby.

“Have To” History: Landmark Supreme Court Cases: Stuff You Don’t Really Want To Know (But For Some Reason Have To) About The Most Important Cases In Supreme Court History (I know – catchy, isn’t it?) was a project which began largely for my own reference and classroom use. Some of the material I posted here on Blue Cereal as early drafts. I wasn’t always focused on “landmark” cases – much like with anything in history, for every thread you pull, every question you pose, every rabbit you chase, there are something like a four-hundred and eleven new threads, questions, and rabbits begging to be pulled, posed, and chased – and not always in that order. It doesn’t require you to be particularly knowledgeable or profound; it’s a simple function of focusing on, well… anything, for any real length of time.

As I tell my students, when history is “boring,” the problem isn’t the history. It’s them.

At some point I began wondering if my efforts might prove useful to other educators in their various circumstances. I’m under no illusions about my own abilities, but there’s so much out there and so little time to really dig through it; you never really know what others might find helpful. I pulled together fifteen or so cases, excerpts from the Court’s written opinions, and some questions I’d written as “scaffolding” for my less-enthusiastic classes. I added a few more for sake of completion, along with some simple graphic organizers to manage major periods with multiple related cases.

I initially posted the final product to Teachers Pay Teachers along with a dozen other items. I have mixed feelings about TPT – I’m not against it, necessarily, but I’ve always preferred to simply share whatever I have that others might find useful. Then again, none of us seem to be against getting paid for leading workshops or writing teacher books promising this year’s magical cure to all the things, so I’m not sure why there’s so much faux outrage at those willing to offer up their own labor and creations for a few bucks so they can buy grandma that penicillin.

I sold a few items, but not enough to justify how I was feeling about it. My principles may be for sale, but I’d like to think the price is a little higher than what I was making.

Plus, I gradually realized several things which should have already been obvious. First, not every class needs the same sorts of questions or guidelines, even if they are studying some of the same cases. Second, if my goal was to self-publish the final product (which over time seemed more and more likely), I was limiting its usefulness by formatting it as a “workbook” of some sort. I mean, I read all sorts of nerdy things from other subjects or fields, but I’m not sure I’d actually pay for something if I thought half of the cost was for “homework” I wasn’t going to do. Finally, I’m in a one-to-one school. I tend to assume students can easily look up any relevant information not explicitly covered in the content. That means my questions aren’t always limited to stuff from the materials I’ve provided; they regularly include relevant background info one can easily Yahoo.

In short, my constant second-guessing became a bit silly. I deleted my TPT account and decided to write something which might appeal to students, teachers, or actual people in roughly equal proportions.

I combed several sets of state standards for American History and U.S. Government, plodded through the official Course Descriptions for APUSH and AP-GOV to make sure I included every case referenced in either (whether I’d have chosen those personally or not), and revised my summaries to make them as useful as possible for both students and teachers while remaining as accessible as possible to people who simply wanted to understand a little more about what the hell was going on with this or that issue in the news today.

I’m not saying the final product is perfect, but there’s a reason it took a year longer than I’d planned. (Plus, the final product really is perfect – I was just trying to be humble.)

Because this post is serving the dual purpose of sharing supplemental goodies while working in a subtle promo for you to open a new tab and buy the book, I’ll even share the final description from the (quite stylish) back cover:

Whether you’re a student trying to fake your way through an American History or Government class, a loyal American citizen seeking constitutional context for current events, or simply trying to look smart on a budget, “Have To” History: Landmark Supreme Court Cases covers all the stuff you don’t really want to know (but for some reason have to) about 44 of the most important cases in our collective history. From midnight judges to gay marriage, internment camps to presidential shenanigans, you’ll find yourself looking more thoughtful and insightful just by leaving a few copies lying around. And if you actually read it, well… your credibility and self-confidence will soar and you’ll start decisively winning all of those arguments on social media. (Just tell them you have the book!)
Each featured case comes with historical context, the “three big things” you should remember, and an explanation of the decision and why we’re still talking about it today. Excerpts from the Court’s majority opinions are included, along with interesting bits from important concurring or dissenting opinions (so you can take in the Court’s reasoning in its own words). Additional “worth-a-look” cases are presented in compact form with brief highlights from the Court’s decision and a quick summary of the case and why it mattered. “Have To” History: Landmark Supreme Court Cases is readable and fresh and covers everything likely to be on the test.
Take that last bit as literally or metaphorically as you wish.

Once everything was finally finished and published, I started thinking that it might still be useful to a few teachers to have those questions and graphic organizers and whatnot – especially if they weren’t something they were expected to purchase. I added a few more to go with the expanded format of the book, and here we are.

I’ve attached the same materials in two different versions. The “All” file, not surprisingly, has everything in a single PDF document. The “Questions” file has just the questions over case summaries and written opinions, and the remaining attachments are the various graphic organizers from the “All” file but in higher quality PDFs of their own. There’s also a summary of how the courts work which I didn’t write but have used in class from time to time.

Do with any or all of it as you see fit – or don’t. I genuinely hope some of it’s useful. If so, I’d love to know. If you create better stuff and you’re willing to share, send it along and I’ll post it.

The Lochner Era & “Substantive Due Process” (Part Two)

May 17, 2020June 4, 2023 ~ Blue Cereal

NOTE: If you haven’t already done so, you should probably start with Part One of this post. I mean, I can’t force you or anything, but…

“Economic Substantive Due Process” in the Lochner Era

“School choice” wouldn’t emerge onto the national scene until after Brown v. Board of Education (1954) and the various forays into moral corruption and social decay wouldn’t become staples of the nation’s highest court until a decade after that. The rest of the Lochner Era was largely about how freedom meant letting corporations do whatever they wanted to workers because those being exploited had just as much theoretical control over the outcome as their gilded overlords did. (They didn’t put it in those exact terms.) Between 1897 – 1937, the Supreme Court struck down nearly 200 different statues, most as violations of “freedom of contract” or other violation of “economic substantive due process.”

The Court acknowledged in principle that state and even sometimes federal government had some limited authority to regulate workplaces in order to promote safety and the general welfare, but only in cases involving explicit physical danger. Efforts to regulate mining, for example, might have a chance; restricting the hours during which one could safely bake bread, on the other hand… not so much.

Any such regulations should avoid restricting “market choices”; they couldn’t interfere with the ability of men to sign up for whatever working conditions they choose at whatever wages are available. The Lochner Era had little use for Congress’s claims to expanding authority under the Commerce Clause, making it one of those rare periods in U.S. history during which federal power didn’t simply expand at will. The Court was particularly unsympathetic towards labor unions during this period, regularly striking down laws facilitating union activities or offering workers more leverage in negotiations.

Other Major Cases of the Lochner Era

Here are a few of the more frequently cited cases of the period, although there were dozens of others which could just as readily demonstrate the ideology of the era:

Adair v. United States (1908) – Congress passed legislation in 1898 prohibiting “yellow dog contracts” in which workers agreed to forego union membership in order to obtain employment. When an interstate railroad company nevertheless fired an employee for joining a labor union, they argued that the Fifth Amendment protected them from being deprived of their liberty or property without due process (no doubt meaning the “substantive” variety). The Supreme Court agreed. While Congress had the right to regulate interstate commerce, that didn’t give them the right to interfere in the “liberty of contract” between employers and employees.

Hammer v. Dagenhart (1918) – In 1916, Congress passed the Keating-Owen Bill, which attempted to standardize protections for children under the age of 16 (or 14 in some industries) working in factories or other labor-intensive industries. The Court declared Keating-Owen unconstitutional, insisting that Congress’s power to regulate interstate commerce was intended to facilitate trade among the States, not stretched to regulate labor and production itself. Besides, the Court pointed out, the States had already addressed the issue in their own ways, as the Tenth Amendment allowed.

Adkins v. Children’s Hospital (1923) – The District of Columbia passed a minimum wage law for women and minors, complete with provisions for investigation and enforcement. The Children’s Hospital of D.C. protested that this was a violation of their “freedom of contract” as clearly established in Lochner v. New York (1905). The Supreme Court agreed and overturned the minimum wage legislation based on the same principles articulated in Lochner, adding that the law was “arbitrary” in that it imposed a uniform minimum wage regardless of women’s individual skills, occupations, wants, or needs. Besides, the Court added, with the passage of the 19th Amendment only a few years before, the idea that women required special protection was quickly becoming antiquated.

Carter v. Carter Coal Company (1936) – The Bituminous Coal Conservation Act of 1935 was intended to establish national standards for the coal industry. It was not technically mandatory, but companies who agreed to pay the designated wages, limit working hours to those spelled out in the legislation, and follow the suggested pricing guidelines, received a substantial tax refund. The Court determined that Congress had (once again) overstepped its authority under the Commerce Clause. Employee wages and hours were part of production, not distribution or sales, and any relationship between the two was indirect at best. If individual states wished to regulate their industries in this way, that was fine – but nothing in the Constitution gave the federal government the right to step in on this level.

West Coast Hotel Co. v. Parrish (1937)

On its surface, West Coast Hotel was a fairly straightforward case. The State of Washington set a minimum wage for women and minors working in most professions. Elsie Parrish, who worked at a local hotel, sued for the difference between what she actually made and the legal minimum. Lower courts, following the precent set in Adkins v. Children’s Hospital (1923), found in favor of the hotel – “freedom of contract” and “substantive due process” and all the usual staples of what was by this time forty years of “Lochner Era” jurisprudence.

When the case reached the Supreme Court, however, they found for Parrish and the State of Washington. The minimum wage was fine. Adkins was officially overturned. Just like that, the Lochner Era was over.
West Coast Hotel marked a dramatic shift in the Court’s approach towards legislation regulating industry and protecting workers. This was not the result of a massive change of heart or mind by nine robed individuals, but a philosophical reversal on the part of a single Supreme – Justice Owen J. Roberts. Many of the infamous Lochner cases were decided by split votes, with 5 – 4 being the most common. West Coast Hotel was decided 5 – 4 as well, but 4 of the new 5 were the same core group who’d been overruled in similar cases for decades prior.

Why the change? Popular wisdom suggests it was a reaction to President Franklin D. Roosevelt’s infamous “court packing plan” via the Judicial Procedures Reform Bill of 1937. Tired of having so many of his New Deal efforts stymied or outright overturned by the Court, FDR proposed adding six additional justices over a period of several years – claiming he simply wanted to help the Court manage its extensive workload.
There was nothing unconstitutional about adding Justices to the Court, but even his supporters saw it as a rather obvious ploy to gain some leverage over a troublesome Supreme Court. Although the bill failed, perhaps Roberts sensed a change in the popular winds and decided it was time for the Court to pick its battles more carefully. Someone coined the phrase “the switch in time that saved nine” in reference to Roberts’ change of heart and the term stuck.

The Inglorious Demise of Economic Due Process

The Majority Opinion in West Coast Hotel, penned by Chief Justice Charles Evans Hughes, accepted the State’s argument that women and minors were particularly vulnerable to exploitation by employers and that what was bad for women (many of them mothers) usually ended up being bad for society as well. This was the opposite of the “women don’t need no stinkin’ protection” approach of Adkins, but if you’re going to overturn a previous ruling, you might as well go all the way.

In an instant, the “economic substantive due process” went from being head cheerleader to the weird girl no one would invite to parties. It fell out of favor, seemingly inexplicably, and has been generally villified ever since. Lochner v. New York (1905) is now regularly lumped together on “worst ever” lists with cases like Scott v. Sandford (1857), Plessy v. Ferguson (1896), and Citizens United v. FEC (2010).

The idea that there are unenumerated rights just as essential to personal liberty as those spelled out explicitly, however, did not go away. Some would argue it had been there all along – hence the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Eventually “substantive due process” would re-emerge. It periodically popped up in the slew of “rights of the accused” cases for which the Warren Court is best-remembered, then – as previously mentioned – became a staple of both sexual freedom jurisprudence and a re-imagining of “religious liberty” far more aggressive than a generation ago. Because it relies on inference and historical interpretations, it’s both malleable and unpredictable. Perhaps the biggest error of the Lochner Era courts wasn’t their use of “unenumerated rights” in making their decisions, but their elevation of those inferred rights to a status which trumped all other considerations – economic, social, or legal.

The Lochner Era & “Substantive Due Process” (Part One)

May 15, 2020June 4, 2023 ~ Blue Cereal

The Lochner Era (Introduction)

There are several periods in the history of the Supreme Court in which tend to be remembered for an overall approach and lasting impact rather than for a specific case or two. Often they’re simply referred to by the name of the Chief Justice at the time – the Marshall Court of the early 19th century promoted federal power in the early days of the United States, the Warren Court discovered a slew of new rights and protections for the accused in the 1950s and 1960s, and the Roberts Court…

Well, it’s a bit early to make that call.

The Lochner Era (1897 – 1937), however, is named for a case representing a judicial philosophy which dominated the nation’s highest court for nearly forty years. For over a generation, the Court pushed back against the reform efforts of the Progressive Era and gave FDR fits by overturning many of his best efforts to regulate industry during the Great Depression. They laid the foundation for the modern “school choice” movement by uncovering new rights related to parenting and families. In the process, they brought to life an understanding of the Fourteenth Amendment that would end up securing the rights of American citizens to contraception, gay sex, and abortions.

Who saw THAT coming?

The 20th Century Begins

The Spanish-American War was over, the U.S. was quickly becoming a leader in imperialist expansion, and World War I wasn’t yet a twinkle in the Kaiser’s eye. The Second Industrial Revolution was in full swing; massive manufacturing and swelling cities increasingly absorbed available real estate. The American Federation of Labor (AFL) had recently formed under the leadership of Samuel Gompers and was already making headway with practical issues like slightly higher wages and better working conditions. These gains were local and inconsistent, however, and advocates hoped for a little help from higher-ups.

Crowded, dirty, dangerous cities and the evolving power of media to reveal “how the other half lives” brought about what would be remembered as the “Progressive Era.” Reformers began staking out victories, primarily at the municipal level – although by 1920 they could celebrate four new constitutional amendments as well. Both churches and charities were inspired by the idea that individuals, with a little help and “encouragement,” could improve. Individuals make up families, families make up societies… the world could become a better place, starting with the education of one child, the health of one mother, the reform of one man.

At the same time, human fallibility was both substantial and entrenched. While individuals offering soup and a place to sleep were certainly part of the solution, many believed fundamental changes in the system would be necessary for long-lasting, widespread prosperity. It was time to get local, state, and even national government to “promote the general welfare” a bit more aggressively. The most logical place to begin was the epicenter of discord between the handful of men who seemed to own everything and those perpetually consumed in their name – the workplace.

Lochner v. New York (1905)

It was in the spirit of societal progress that the State of New York passed the “Bakeshop Act,” which prohibited bakers from working more than 10 hours a day or more than 60 hours a week. Like other labor reform, the intent was to protect workers from being exploited by greedy owners – those certain intellectuals referred to as the bourgeoisie. Joseph Lochner was a New York baker who violated this law several times and was fined as a result. Lochner protested that the law was unconstitutional. The Fourteenth Amendment, he argued, protects “freedom of contract,” in principle if not in name. Why should the government interfere with an otherwise legal, private business arrangement between two rational adults?

The case eventually reached the Supreme Court, which sided with Lochner. Justice Rufus W. Peckham, writing for the majority, explained the Court’s reasoning:

There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.

In short, bakers are grown-ups just like anyone else, and they can make their own decisions about whether or not to agree to specific hours, wages, or anything else. Expand that to include most of the adult workforce, and you have the basic philosophy of the entire Lochner Era.

Allgeyer v. Louisiana (1897)

Lochner wasn’t the first indication the Court was moving this direction. Nearly a decade before, the case of Allgeyer v. Louisiana had reached the Supremes. Louisiana had passed a law intended to protect state businesses by prohibiting out-of-state insurance companies from selling policies in Louisiana. Allgeyer & Co. was a Louisiana company that bought out-of-state insurance anyway and were assessed heavy fines by the State as a result. They argued that the law itself was unconstitutional based on the Fourteenth Amendment’s “due process” guarantee.

The Court acknowledged the State’s obligation to protect its inhabitants but found in favor of Allgeyer & Co. based on a rather Gordian brew of precedent and equivocation. Along the way, however, a concept emerged which would shape the next forty years – “economic liberty.” While the term itself was absent from the Fourteenth Amendment (or any amendment, for that matter), the idea is inherent in the text as a whole – or so the Court determined. Although no one knew it yet, the Lochner Era had begun.

“Procedural” Due Process v. “Substantive” Due Process

This discovery of “economic liberty” in the Fourteenth Amendment meant that states like Louisiana, and later New York, couldn’t limit an individual’s right to make his or her own economic decisions without what the Fifth and Fourteenth Amendments call “due process.” (The Fifth specifically limits federal power; the Fourteenth extends those limits to state and local governments.)

The Framers wished to prevent the sort of tyrannical justice handed out by kings or dictators, and to ensure the U.S. remained a nation of laws rather than of men and their unreliable judgements. While the government can, in some situations, take your life, liberty, or property, doing so requires they first clear numerous hurdles and meet certain standards. Those hurdles and standards are “due process.”

The most common understanding of this principle involves “procedural due process.” Anyone accused of a serious crime is guaranteed a fair trial before a jury of their peers. They have a right to an attorney and there are limits as to how the State may go about making the case against them. “Procedural due process” refers to the steps which must be taken and the hurdles which must be cleared before any level of government can take or limit your life, liberty, or stuff – whether the issue is property taxes, prison time, or capital punishment. The concept isn’t limited to criminal law; “due process” is also the steps your public school has to go through before suspending or expelling little Marco for his various violations, and why his guardians or other advocates have the right to challenge the system along the way.

What the Court was calling forth in Lochner, however, wasn’t procedural. The steps had been followed – the legislature passed a law, the bureaucrats distributed the rules, Lochner violated them, enforcers caught him, and the local court heard his case and declared him guilty, all before assessing those fines. What Peckham and the majority were relying on was something else – what would eventually be referred to as “substantive due process.”

Defining Between the Constitutional Lines

“Substantive due process” is a bit harder to define, and it’s been controversial ever since it first emerged. Some see it as jurisprudential accommodation of the natural rights and common law traditions which sparked the nation’s birth to begin with, while others find it more akin to the Voldemort tumor under Professor Quirrell’s turban, manipulating dark justices into sacrificing spare rights on their way to defeating the Constitution-that-Lived once and for all.

One of the better explanations comes from Professor Erwin Chemerinsky, Dean of UC Berkeley’s Law School:

Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed proper procedures when it takes away life, liberty, or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation.
Consider this simple illustration. The Supreme Court has said that under the word liberty in the due process clause, parents have a fundamental right to the custody of their children. Procedural due process means that the government must give notice and a hearing before it can permanently terminate custody. Substantive means the government must show a compelling reason that would demonstrate an adequate justification for terminating custody.

What “substantive due process” protects, then, are what we sometimes refer to as “unenumerated rights” – protections implied by the written words of the Constitution and its Amendments, perhaps even inherent in them, but not spelled out as such. In the Lochner Era, this primarily referred to “economic substantive due process” – ideas like “freedom of contract” between companies and workers. It was during this same era, however, that two cases were decided largely on the basis of “substantive due process” which had nothing to do with workers rights or minimum wages. Meyer v. Nebraska (1923) involved the right of parents to determine the specifics of their child’s education and of educators to offer wildly controversial courses like foreign languages. Pierce v. Society of Sisters (1925) allowed parents to choose private schooling, religious or otherwise.

Both Meyer and Pierce were cited repeatedly throughout the 20th century as evidence of the validity of unenumerated rights. They are, in fact, the foundation of most “school choice” arguments – particularly by those most determined to funnel public tax dollars into religious training via “vouchers” and related schemes. Ironically, however, the same controversial judicial philosophy which allowed the Lochner Courts to strike down efforts to regulate big business and which encourages “school choice” advocates to keep fighting the good fight served as the foundation for another collection of unenumerated rights which emerged rather dramatically in the late 20th century.

It called itself the “right to privacy.” You’d recognize it anywhere because it wears a giant “pro-choice” button, uses contraception, and constantly marries someone of a different race but the same sex.

NEXT: The Lochner Era & “Substantive Due Process” (Part Two)