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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

P, Progressivism,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 July 2020

Progressivism,

spanning roughly the first two decades of the twentieth century, was a reform movement through which Americans struggled to cope with a wide range of social, economic, and cultural changes. Progressives differed in their perceptions of the nature of the nation’s problems and of how best to resolve them, but most shared the conviction that government at all levels must play an active role in reform. They sought legislation to broaden the state’s power to curb the excesses of large-scale corporate *capitalism and to address the host of inequities that had resulted from rapid and unprecedented economic and social change. Since their vision of the function of government was somewhat unorthodox by traditional American standards, reformers had not only to secure the passage of new legislation but also to persuade the judicial system that such laws were both warranted and constitutional.

While contemporary social activists sometimes perceived the judiciary as a barrier to change, the Supreme Court actually upheld most of the legislation passed during the Progressive Era, in particular supporting reformers’ efforts to expand the federal government’s power to regulate commerce and to curb the growth of monopolies. The Hepburn Act of 1906 broadened the scope and authority of the *Interstate Commerce Commission (ICC), giving it genuine power for the first time. The Court sustained the invigoration of the ICC, and affirmed the constitutionality of administrative regulation.

Initially, the Court rendered the *Sherman Antitrust Act (1890) virtually ineffectual when in United States v. *E. C. Knight Co. (1895) it drew a sharp distinction between commerce and manufacturing, thus limiting the government’s regulatory power over the latter. For several years thereafter the law was of value primarily to conservative judges who employed it as a weapon in the struggle to curb the power of organized *labor. During the first decade of the twentieth century, however, the Supreme Court revived the Sherman Act in several important cases. In *Northern Securities Co. v. United States (1904), the Court resurrected the antitrust statute when it found a railroad holding company to be an illegal combination in restraint of trade. The (p. 791) following year in *Swift and Co. v. United States (1905), Justice Oliver Wendell *Holmes, writing the majority opinion, circumvented the commerce versus manufacturing distinction by espousing the doctrine of “stream of commerce,” which stressed the impact of manufacturing upon commerce (see commerce power). Like many Progressive reformers, the justices of the Supreme Court believed that a large company’s size, business practices, and substantial market share were not necessarily detrimental to the economic or social progress of the nation. In *Standard Oil Co. v. United States (1911), the Court adopted the *“rule of reason,” indicating that it would interpret the Sherman Act in such a way as to break up only those companies whose existence constituted an unreasonable restraint of trade.

The *police power, the authority to protect the public’s health, safety, and morals, was traditionally reserved to the states. Progressive legislators interpreted this power broadly and passed a variety of economic and social measures at the state level, including child labor minimum wage, maximum hour, factory safety, employer liability, and workmen’s compensation statutes. In several famous decisions, most notably *Lochner v. New York (1905), the Court overturned some of these laws. However, in *Muller v. Oregon (1908) and other cases, the Court sustained much of this legislation on the grounds that the statutes represented valid exercises of the states’ police power.

When state government proved incapable of dealing effectively with economic and social problems, Progressives sometimes turned to Washington for help. Between 1906 and 1916 Congress passed several significant pieces of social justice legislation such as the Pure Food and Drug, Meat Inspection, Mann, Adamson, and Keating-Owen Acts. When challenged, most of these laws, which were based on the commerce or taxing power of the federal government, were upheld by the Supreme Court. On several occasions, however, the justices concluded that Congress had overstepped constitutional bounds in its efforts to exercise federal police power. In 1908, in the first Employer Liability Case, the Court found that a 1906 employer’s liability law represented a misuse of the commerce power since it affected workers not directly engaged in interstate commerce. In *Adair v. United States (1908), the Court ruled that the Erdman Act (1898) prohibiting yellow-dog contracts violated the liberty of contract under the Due Process Clause of the Fifth Amendment. In *Hammer v. Dagenhart (1918), the Court found that the Keating-Owen Child Labor Act (1916) was not a legitimate regulation of commerce and intruded upon the police power of the states.

As the Supreme Court considered the constitutionality of the Progressive legislative agenda, the justices sometimes construed *judicial review narrowly, ruling only on the question of whether there was a clearly constitutional basis for the statute in question. On other occasions the Court interpreted its power broadly, assuming the right to examine the substance of state legislation. In the 1890s an activist conception of judicial review had often been used to protect *property rights, but in the early twentieth century Progressive judges and lawyers such as Louis D. *Brandeis often successfully marshaled it to the cause of social change.

Although sometimes labeled reactionary by reform-minded critics, the Supreme Court during the Progressive Era was generally sensitive to the massive changes occurring within American life and struggled to reconcile legal tradition with the demands of modernity. While it sometimes obstructed reform in the name of individual liberty, property rights, or *federalism, the Court ultimately sanctioned an expansion of both state and federal power in order that government at both levels might cope more effectively with the unprecedented problems of the age.

See also capitalism; contract, freedom of; due process, substantive.

John W. Johnson, American Legal Culture, 1908–1940 (1981). Melvin I. Urofsky, “State Courts and Protective Legislation during the Progressive Era: A Reevaluation,” Journal of American History 72 (June 1985): 63–91.

Robert F. Martin