CONSTITUTIONAL HISTORY, 1877–1901

American public life during the civil war –reconstruction years was dominated by clashes over constitutional issues of the most basic sort: race and citizenship; federalism, states ' rights, and the Union; the power of the President, Congress, and the courts; and the bounds of military and civil authority. This was a time when the interpretation of the Constitution held center stage in American public life. The resolution of fundamental issues was sought in Congress and the courts, in party politics and elections, ultimately through force of arms. Merely to list the milestones of the period—the great debate over slavery in the territories; Dred Scott v. Sandford (1857); secession and civil war; the Thirteenth, Fourteenth, and fifteenth amendments; the civil rights, Reconstruction, and Enforcement Acts; and the impeachment of andrew johnson—is to make the point that during the years from 1850 to 1877 the Constitution provided the context in which Americans expressed, and fought over, their most fundamental social beliefs.

How different was the period that followed! The structure of government—the relationship of the states and territories to the Union; the powers of Congress, the courts, and the President; the role of the political parties—often was a matter of political but rarely of constitutional concern. Nor were the major economic and social issues of the time confronted primarily in constitutional terms. It is revealing that no amendment to the Constitution was adopted between 1870 and 1913.

This does not mean, though, that constitutional issues had no place in American public policy between 1877 and 1900. Rather, what happened was that a sea change was taking place in American life, and the issues generated by this change took time to assume a full-fledged constitutional guise. Just as the basic constitutional issues of states' rights and slavery did not fully emerge until the 1850s, so too the constitutional issues generated by the rise of an urban-industrial society did not come into their own until after 1900, in many respects not until the 1930s.

Where should we look, in the late nineteenth century, for the seeds of the great twentieth-century effort to adapt the Constitution to the realities of an urban-industrial society? The primary structural concern of the time was over the role of the judiciary, and here was a foreshadowing of the conflict between the administrative state and the representative state that would assume such great importance after 1900. Second, economic issues—in particular, those involving the regulation of large enterprises—were a fruitful area of contention in the late nineteenth century. And finally, questions of citizenship and race—partly a legacy of the Civil War-Reconstruction years but also a product of the social strains generated by an industrializing society—continued to engage the attention of the public and of policymakers.

Frank Goodnow in his Comparative Administrative Law (1893) observed that while constitutional issues set the terms of debate over the character of American government before the Civil War, administrative issues took center stage afterward. Certainly it seemed that, as much as anything could, the war had settled the question of the relationship of the states to the Union. Nor did the desuetude of the post-Reconstruction Presidency, the dominance of Congress, or the still-nascent administrative state generate much in the way of constitutional debate.

Late nineteenth-century Presidents were caught up in party politics and patronage and did relatively little to formulate and conduct public policy. But America's evolution into a powerful industrial nation began to leave its mark. rutherford b. hayes and grover cleveland used federal troops to restore order during the railroad strikes of 1877 and 1894. The federal bureaucracy, though small, was growing; and something like a professional civil service took form, in part under the aegis of the Civil Service Commission established by the pendleton act of 1883. Tariff and fiscal policy came to be more closely identified with presidential leadership. But in constitutional terms the chief executive at the end of the century was little changed from what he had been in 1877.

Congress, however, became a considerably more powerful and effective branch of government during this period. woodrow wilson in 1885 called "Congressional Government" the "predominant and controlling force, the centre and source of all motive and of all regulative power." This enhanced authority came from the fact that state and local party leaders served as senators and representatives; from congressional control over budgetary and fiscal policy; and from the increasing regularity and stability of congressional leadership and procedure.

Perhaps the most striking change in the balance of governmental powers during the late nineteenth century was the rise of judicial activism. The Supreme Court found only two federal laws unconstitutional between 1790 and 1864, but it voided federal acts in seven cases between 1868 and 1877 and in eleven cases between 1878 and 1899. The Court voided state acts in thirty-eight cases before 1865, in thirty-five cases between 1865 and 1873, and in ninety-one cases between 1874 and 1899. A debate as old as the Constitution heated up once again in the 1890s: what were the proper limits of judicial review ?

The belief was then widespread—and has been gospel since—that the late nineteenth-century courts declared open season on laws threatening corporate interests. The American Law Review observed in 1894 that "it has come to be the fashion … for courts to overturn acts of the State legislatures upon mere economical theories and upon mere casuistical grounds." Federal and state courts found in the due process and equal protection clauses of the Fourteenth Amendment and in the doctrine of freedom of contract grounds for voiding laws that regulated working conditions or taxed corporations. This judicial conservatism culminated in an unholy trinity of Supreme Court decisions in the mid-1890s: in re debs (1895), which sustained a federal injunction against striking railroad workers; united states v. e. c. knight company (1895), which severely limited the scope of the sherman antitrust act; and pollock v. farmers ' loan and trust (1895), which struck down the 1894 federal income tax law. Arnold Paul has called these decisions "related aspects of a massive judicial entry into the socioeconomic scene, … a conservative oriented revolution."

But the extent of the courts' antilabor and antiregulatory decision making has been exaggerated; and its purpose has been distorted. A review in 1897 of 1,639 state labor laws enacted during the previous twenty years found that 114 of them—only seven percent—were held unconstitutional. The statepolicepower to regulate working conditions was widely accepted legal doctrine: in ninety-three percent of 243 Fourteenth Amendment challenges before 1901 the Supreme Court upheld the state laws. By the late 1890s the influential New York and Massachusetts courts looked favorably on laws affecting the conditions of labor, as did the Supreme Court in holden v. hardy (1898).

Nor did judicial policy rest only on a tender concern for the rights of property. The desire to foster a national economy was evident in many federal court decisions. And many Justices shared the widespread public sense that American society was being wrenched beyond recognition by industrialism and its consequences. Justice stephen j. field and jurist thomas m. cooley were as ill at ease with large corporate power as they were with legislative activism. The influential judge and treatise writer john f. dillon, who called all attempts "to pillage and destroy" private property "as baneful as they are illegal," insisted "with equal earnestness upon the proposition that such property is under many important duties toward the State and society, which the owners generally fail to appreciate."

By far the most important applications of the Constitution to issues of public policy during the late nineteenth century involved large corporate enterprise, that increasingly conspicuous and troubling presence on the American scene. Railroads led the way both in the scale of their corporate organization and in the consequent public, regulatory, and judicial response.

The roads were great beneficiaries of private and state loans before the Civil War. In the years after 1865, they received substantial federal and state land grants, and loans and subsidies from counties and townships. There were 35,000 miles of track in 1865; 93,000 in 1880. But by the mid-1870s railroads were staggering beneath the weight of their expansion. Fierce competition in the East and Midwest forced down rates and earnings. The over-capitalized lines, with high fixed costs, suffered also from the price deflation of the time. Bankruptcies and reorganizations, rate discrimination, and price-fixing pools were among the consequences. All had the effect of feeding popular anti-railroad sentiment.

That great Civil War venture in mixed enterprise, the Union Pacific Railroad, was a prolific breeder of controversy. Political and constitutional difficulties sprang up around the federal government's role in the capitalization and direction of the road. Congressmen bitterly assailed the Union Pacific's inability (or disinclination) to meet its financial obligations to the government. But not until the sinking fund cases (1879) did the Supreme Court sustain the right of Congress to require this and other transcontinental lines to repay their debts. The Credit Mobilier scandal of 1872, in which stock in the construction company that built the Union Pacific was distributed to a number of influential politicians, epitomized the difficulty of fitting a semipublic enterprise into the American system of government. The Pacific Railroad Commission finally concluded: "The sovereign should not be mated with the subject."

Railroad land grants were no less a source of contention. The House unanimously resolved in 1870 that "the policy of granting subsidies in public lands to railroads and other corporations ought to be discontinued." Once again, the very principle of such aid came under attack: "These grants … have been made on the theory that government is an organized benevolence, and not merely a compact for the negative function of repelling a public enemy or repressing disorders."

The consequences of state and local railroad aid also were distressing, and were equally productive of doubts as to whether such aid was part of the proper role of government. The Supreme Court heard more than 350 bonding cases between 1870 and 1896. While the courts felt constrained to enforce most of those obligations, they made clear their displeasure with government subsidization. John F. Dillon condemned subsidies as "a coercive contribution in favor of private railway corporations" which violated "the general spirit of the Constitution as to the sacredness of private property." Thomas M. Cooley objected to railroad subsidies on similar grounds, arguing that "a large portion of the most urgent needs of society are relegated exclusively to the law of demand and supply." In loan association v. topeka (1875) the Supreme Court used this argument to block direct government subsidization of private enterprise.

During the years from 1880 to 1900, public, political, and (inevitably) judicial attention shifted from subsidization to regulation of the economy. The prevailing economic thought of the time, the weakness of government supervision, and the power of private interests worked against an effective system of economic regulation. But inevitably the strains and conflicts attending the rise of an industrial economy produced demands on the state to intervene.

Journalist E. L. Godkin observed in 1873: "The locomotive is coming in contact with the framework of our institution. In this country of simple government, the most powerful centralizing force which civilization has yet produced must, within the next score years, assume its relation to that political machinery which is to control and regulate it." Nor surprisingly the railroads, the biggest of America's national enterprises, were the first to come under federal regulation.

During the 1870s, state railroad policy had moved from subsidy to containment. The 1870 Illinois constitution required the legislature to "pass laws establishing maximum rates of charges for the transportation of passengers and freight." That body in 1871 set maximum freight and grain elevator rates, forbade price discrimination, and created a railroad commission with supervisory and enforcement powers. Similar laws were adopted in Minnesota, Wisconsin, and Iowa. Because Grange members often were prominent advocates of rate regulation, these acts came to be known as the Granger laws.

The Supreme Court in Munn v. Illinois (1877), the first of the granger cases, upheld the regulatory power of the legislatures and opened up yet another path to regulation by resurrecting the old common law doctrine that when private property was affected with a public interest it was subject to public accountability and control. But at the same time the Court conceded that "under some circumstances" legislation might be held to violate the Fourteenth Amendment: a portent of the conservative jurisprudence of later years.

Whatever constitutional authority might adhere to state regulation, its effectiveness was severely limited by compliant state railroad commissions, the political and legal influence of the roads, and above all the national character of the enterprise. From the mid-1880s on, federal courts increasingly struck down state railroad tax and rate laws that in their view interfered with the flow of interstate commerce. The implicit policy decision was that ratemaking should be in the hands of the railroads—and be subject to the review of federal courts, not state courts and legislatures. One observer thought that "long tables of railway statistics, with the accompanying analyses, look strangely out of place in a volume of United States Reports": testimony to the fact that the courts of necessity were taking on a quasi-administrative role.

The scale and complexity of the interests affected by the railroads, the competitive problems of the lines themselves, the limited effectiveness of state regulation, and the growing intervention of the federal courts all fed a movement for national railroad regulation culminating in the interstate commerce act of 1887. That act defined and laid down penalties for rate discrimination, and created an Interstate Commerce Commission (ICC) with the power to investigate and prosecute violators. Its primary purpose was negative: to block pooling and other cartel practices, not to secure a stable railroad rate structure. What the ICC gained thereby in constitutionality it lost in administrative effectiveness. Its early performance showed how difficult it was—given the power of private interests, popular distrust of government, and constitutional limits on the exercise of public power—to establish a bureaucratic mode of regulation. Instead, the ICC adopted what was in fact the only functioning American mode of economic supervision, that of the judiciary. Cooley, the judge and treatise writer who became the ICC's first chairman, announced: "The Commissioners realize that they are a new court, … and that they are to lay the foundations of a new body of American law."

During the first ten years of its existence the ICC handed down rulings on more than 800 rate controversies. But the Commission's impact was limited by the size, complexity, and competitiveness of the railroad business and by its lack of supervisory power. Demands rose in the 1890s for government ownership and operation of the lines, or at least for more rigorous supervision by a national Department of Transportation. But, as Cooley observed, these proposals were beyond the range of the late nineteenth-century American polity: "The perpetuity of free institutions in this country requires that the political machine called the United States Government be kept from being overloaded beyond its strength. The more cumbrous it is the greater is the power of intrigue and corruption under it."

The regulation of large enterprise in general posed the same problems, and produced the same response, as did that of the railroads. Mid-nineteenth-century general incorporation acts, and the competition among states to attract corporation charters, guaranteed that the terms of incorporation would remain easy, the regulation of company affairs loose and permissive. In theory the internal affairs of corporations were the business of the states; in practice, the states exercised little control.

But as in the case of the railroads, the growth of business corporations into national enterprises created a demand for federal regulation. Once again, judicial interpretation fostered the growth of a national economy. State and federal courts strengthened the legal status of foreign (out-of-state) corporations, in effect reversing the severe constraints imposed on them by paul v. virginia (1869). In Barron v. Burnside (1887) the Supreme Court for the first time held that state regulation of foreign corporations could be of doubtful constitutionality. By the turn of the century the "liberal theory" of foreign corporations was the prevailing one.

Even more dramatic was the courts' use of the Fourteenth Amendment to protect corporate rights and privileges. During the 1870s, said Howard Jay Graham, "the rule that corporations were not to be regarded as constitutional " persons ' theoretically was the law of the land." But this rule was more theory than fact, and during the late nineteenth century the judiciary explicitly brought corporations under the protection afforded to persons by the due process and equal protection clauses of the Amendment.

The rise of large enterprise in the late nineteenth century took forms that roused public concern and ultimately evoked a legislative and judicial response. The urge to override the limitations of state chartering led to the invention of the corporate trust and then the holding company. Although only about ten trusts were created during the 1880s, the word in the generic sense of a "huge, irrepressible, indeterminate" corporation came to be the object of great public concern. By 1890 several states had antitrust laws, and six state supreme courts had held that trust agreements were against public policy or were illegal as monopolies or conspiracies in restraint of trade. And public pressure grew for a federal antitrust law, as it had for railroad regulation.

The sherman antitrust act of 1890, passed overwhelmingly by Congress, relied on the legislature's power under the commerce clause to outlaw "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce." The breadth of the law's formulation, and its dependence on the courts rather than on an administrative agency to define its provisions, testified to the still underdeveloped state of federal regulation. But in other ways the statute was sophisticated. By relying on the old common law concept of the illegality of conspiracies in restraint of trade, the drafters minimized the risk of having the law declared unconstitutional. And the Sherman Act was widely understood to be aimed at great combinations, not to fix an unrealistic standard of small-unit competition on the economy.

Even so, enforcement was full of difficulty. The Department of Justice in the 1890s lacked the manpower, the money, and the inclination to prosecute vigorously. The courts, too, severely limited the utility of the act. They held that a firm could come to dominate a sector of the economy without doing anything illegal, and they developed distinctions between reasonable and unreasonable restraint of trade, between legitimate business practices and "illegal commercial piracy." And in its Sugar Trust decision of 1895 (United States v. E. C. Knight Company) the Supreme Court dealt the law a heavy blow, holding that the Sherman Act applied only to "commerce" and not to manufacturing, and that the activities of the American Sugar Refining Company lay outside the act's coverage even though that firm controlled over ninety percent of the nation's sugar refining capacity.

The American Law Review called this decision "the most deplorable one that has been rendered in favor of incorporated power and greed … since the Dartmouth College case." In fact, the Court did take a narrow and mechanical view of interstate commerce. On that premise, its decision reflected a long-held distinction between state regulation of manufacturing and federal responsibility for interstate commerce. When private parties brought suit against trade and price cartels (particularly by those prime instances of enterprises in interstate commerce, the railroads), the Supreme Court was not reluctant to find that they violated the Sherman Act.

By the turn of the century it was apparent that the problem of corporate regulation was "rapidly assuming phases which seem beyond the scope of courts of justice." The rise of corporate capitalism, and the question of what to do about it, called as much for political-administrative a will and wisdom as for legal-constitutional power and propriety.

The primary legal and, ultimately, constitutional justification for late nineteenth-century state regulation was the police power: the obligation of the states to protect the health, morals, safety, and welfare of their citizens. Many thought that the potential of that power was great indeed. The president of the American Bar Association estimated in 1897 that more than ninety percent of state legislation rested on the police power. christopher tiedeman'sLimitations of the Police Power in the United States (1886) was an elaborate attempt to find constitutional grounds for containing what he took to be a widely applied principle of government intervention. oliver wendellholmes caustically said of the police power: "We suppose the phrase was invented to cover certain acts of the legislature which are seen to be unconstitutional, but which are believed to be necessary."

The police power had its greatest appeal when public health and morals appeared to be at stake. A case in point was regulation of the liquor business. The Supreme Court upheld the right of the states to forbid the manufacture and sale of alcohol, and refused to accept the due process clause of the Fourteenth Amendment as a defense against state liquor legislation. (See inalienable police power.) Still more dramatic was judicial acceptance of extensive regulation—indeed, the near-crippling—of the oleomargarine industry. By 1886, twenty-two states either heavily taxed that product or required unattractive packaging or labeling. An 1886 federal law—"protection run mad," said an outraged critic—required that the product be called "oleo" (rather than "butterine" or other enticing names), and subjected it to a high license and manufacturing tax. The Supreme Court in Powell v. Pennsylvania (1888) upheld a similar Pennsylvania statute on the basis of the state's police power to protect public health.

The insufficiency of the state police power as a basis of state economic regulation became more and more apparent as the century neared its end. Corporate interests effectively espoused a laissez-faire, substantive due process constitutionalism. More fundamentally, courts recognized the growing imbalance between state supervision and an economy that was becoming national in scope.

By 1899 the Supreme Court had held twenty-nine state laws unconstitutional because they conflicted with the commerce clause of the Constitution. In leisy v. hardin (1890) the Court voided an Iowa law blocking the entry of liquor into the state, holding that the movement of an original package was protected by the national commerce power, so long as Congress had not authorized the state regulation. Responding to this invitation, Congress quickly passed the Wilson Act, which made liquor subject to state law regardless of where it was packaged. The Court validated the law on the grounds that "the common interest did not require entire freedom in the traffic in ardent spirits." But without similar congressional authorization, it continued to apply the original package doctrine against state laws restricting the entry of oleomargarine and cigarettes. And in champion v. ames (1903) the Court upheld a statute forbidding the interstate transportation of lottery tickets, thus opening the prospect of national police power.

The constraints that limited the application of government authority to economic problems were at least as evident in the realm of social policy. During the period of the Civil War and Reconstruction, citizenship and race had been issues of prime importance not only in constitutional law but in politics and legislation as well. In the twentieth century these and other social concerns—education, crime, poverty, social mores, civil liberties—would draw comparable attention from the public, Congress, and the courts. But such was not the case during the years between 1871 and 1900. With American society in transit from its small-unit agrarian past to its large-unit urban, industrial future, the political or constitutional standing of individual or social rights was largely ignored.

These years saw relatively little redefinition—in either constitutional law or legislative action—of the status of women, Orientals, blacks, or american indians. Legal barriers to female equality occasionally fell, but by legislation, not constitutional adjudication. Opposition to women's suffrage remained strong. Between 1870 and 1910 suffrage advocates conducted 480 campaigns in thirty-three states to get the issue on the ballot. Seventeen state referenda (all but three west of the Mississippi) were held; only two were successful, in Colorado in 1893 and in Idaho in 1896.

The position of Orientals and blacks in society worsened. Organized labor agitated for the exclusion of Chinese immigrants, and anti-Chinese riots in the West testified to the intensity of public feeling. An 1882 federal law banned Chinese immigration for ten years. Supplementary acts in 1884 and 1888 tightened the exclusion law and imposed restrictions on Chinese already in the country. The Supreme Court in 1887 refused to apply the Civil Rights and Enforcement Acts of the Reconstruction period to Chinese, and in 1889 the Court upheld the restriction of Chinese immigration.

In 1892 Congress overwhelmingly renewed Chinese exclusion for another decade; it also required the registration of every resident Chinese laborer, with affidavits by one or more whites that the registrant had entered the country legally. The Supreme Court upheld this law in 1893. These policies had palpable consequences. About 100,000 lawful Chinese immigrants were in the United States in 1880; there were about 85,000 in 1900. In 1902 Chinese immigration was suspended indefinitely.

An even more pervasive white public opinion supported—or at least remained unconcerned about—discrimination against blacks. Late nineteenth-century northern courts generally upheld state laws that forbade discrimination in theaters, restaurants, and other public places, as a proper exercise of the police power. (The degree to which those laws were enforced is another matter.) But on similar grounds the courts accepted the growing number of segregation statutes. State laws separating the races in public transportation and accommodation, forbidding racial intermarriage, limiting access to the vote, and segregating schools met with no judicial obstacle.

In this sense the Supreme Court's acceptance of a Louisiana railroad segregation law in plessy v. ferguson (1896) represented the approval of an already widely established public policy, not the promulgation of new constitutional doctrine. When in 1903 the Court refused to agree that the Fifteenth Amendment might be used against Alabama officials who kept blacks from voting, Holmes suggested that relief "from a great political wrong" must come from "the legislative and political department of the government of the United States." At the same time the Court's invention of the state action limitation on congressional power encouraged Congress to refrain from remedying private racial discrimination. (See civil rights cases.)

On the face of things, Indian public policy in the late nineteenth century had a different goal: it sought not to foster but to reduce separatism. Indian Commissioner Thomas J. Morgan declared in 1891: "The end at which we aim is that the American Indians shall become as speedily as possible Indian Americans; that the savage shall become a citizen." But majority sentiment still regarded even nontribal Indians as inferior, and the Supreme Court went along. In Elk v. Wilkins (1884)—coterminous with the civil rights cases that invalidated the civil rights act of 1875—the Court held that Indians were not citizens within the understanding of the Fourteenth Amendment.

At the end of the century the acquisition of noncontiguous territory with substantial populations (Hawaii, the Philippines, Puerto Rico) raised old problems of statehood and citizenship in new forms. The Supreme Court in the insular cases (1901) limited the degree to which the Constitution applied to these peoples, much as the Court had been inclined to do with regard to Orientals, blacks, and Indians.

In most of the areas of social policy—education, crime, first amendment freedoms—that in the twentieth century became important battlegrounds of public policy and constitutional law, there was little or no late nineteenth-century constitutional controversy. Only two such issues—prohibition and religion—raised substantial questions of constitutionality. New Hampshire Senator Henry W. Blair first proposed a national prohibition amendment to the Constitution in 1876, and a proposal to this effect was before Congress continuously until its adoption in 1918. State and local restrictions on the distribution and sale of liquor increased, and in general the courts sustained them against Fourteenth Amendment attacks, as proper applications of the police power.

The place of religion in the public schools led to much political and legal conflict. State courts frequently dealt with the thorny issue of school Bible reading. Most states allowed this practice without exegesis, and the courts approved so long as attendance or participation was voluntary. The Iowa Supreme Court upheld a law that forbade the exclusion of Bible reading from the schools. But the Wisconsin court denied the constitutionality of such reading: "The connection of church and state corrupts religion, and makes the state despotic."

Protestant-Roman Catholic hostility underlay much of the conflict over school Bible reading, as it did the issue of state aid to parochial schools. Maine Republican James G. Blaine sought a constitutional amendment forbidding aid in the 1870s (see blaine amendment), and by 1900 twenty-three states had banned public grants to parochial schools. But the interrelationship of religion and education did not come before the Supreme Court until well into the twentieth century.

felix frankfurter once told of a distinguished professor of property law who was called on to teach a course in constitutional law. Dutifully he did so. But he soon abandoned the effort, on the ground that the subject was "not law at all but politics." At no time in American history did this pronouncement seem more justified than in the period from 1877 to 1901. Except for the regulation of large enterprise, Americans debated the problems of a developing industrial society more in political than in constitutional terms. After 1900 the fit—or lack of fit—between those problems and the American constitutional system would be faced more directly.

Morton Keller
(1986)

Bibliography

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

Graham, Howard J. 1968 Everyman's Constitution: Historical Essays on the Fourteenth Amendment, The "Conspiracy Theory," and American Constitutionalism. Chaps. 10–13. Madison, Wisc.: State Historical Society.

Keller, Morton 1977 Affairs of State: Public Life in Late Nineteenth Century America. Cambridge, Mass.: Harvard University Press.

Paul, Arnold M. 1960 Conservative Crisis and the Rule of Law. Ithaca, N.Y.: Cornell University Press.

Skowronek, Stephen 1982 Building a New American State: The Expansion of National Administrative Capacities 1877–1920. Cambridge: At the University Press.