| Between 1890 and 1937, prior to the full effect of the New Deal, the Supreme Court was compelled to review many state laws aimed at regulating local industrial life. Those laws were passed under the authority of state "police power" legislation, or the authority of local governments to regulate "health, safety and morals." Now, however, police power included not only working conditions and union activities, but aspects of industry that seemed to violate the basic principles of republicanism embodied in all American constitutions. Those principles were no longer assumed, but were made explicit in the new Fourteenth Amendment, and its guarantee that no one would be deprived of "life, liberty or property without due process of law." Many business interests claimed that this guarantee protected "liberty of contract," or the right of employers and employees to join for their mutual interests, no matter how unfair it might appear to reform- mined lawmakers. This dissertation challenges the conventional history of that conflict as it occurred in the early "Lochner Era" Court, from 1870-1912. That story holds that the justices merely sided with the industrialists because of their own laissez-faire ideology against popular and necessary forms of local legislation. I propose, however, that the Supreme Court was in fact seeking a constitutional basis for economic regulation -- one that sought to allow for reform without depriving the Constitution of its inner republican principles. Based on cases and other legal literature of that era, I will show how the Court sought to reconcile nineteenth century Madisonian "neutrality" with the need to recover basic fairness in industrial life. At the same time, they sought to preserve the other Madisonian precept: the need to protect the pursuit of property, the fundamental basis for any free government. |
