1.4.4. New England (1865-1900): The Rise of Substantive Due Process

The rise of substantive due process:

  • Early railroad regulation, coupled with steady economic growth after the Civil War, led many New England states to fashion an ever-expanding body of laws and regulations designed to address the many problems that followed in the wake of industrialization.
  • After 1875 New England legislatures began to enact social welfare laws including pure-food and public health laws; laws regulating physicians, pharmacists and other professions; laws for conservation of fish, game and soil; and laws regulating labor-management relations, unfair business practices and workplace safety.  The stream of laws grew steadily, although it did not reach its peak until the Progressive era (1900-1925).
  • New England businesses frequently challenged such laws as unconstitutional.  They usually argued that the laws violated one or more of the following legal doctrines, collectively known as “substantive due process”: 
    • Due process and freedom of contract,, because the laws deprived them of their property and contract rights to conduct their business and make bargains with others on terms of their own choosing.
    • Equal protection, because the laws unfairly singled out their businesses for regulation and thus discriminated against them.
    • The delegation doctrine:  only legislatures could create regulations, and they could not let agencies do the job for them. 
  • In the 1890s, the U.S. Supreme Court and many American state courts began examining regulatory laws critically.  The courts upheld most laws but struck down enough that reformers complained they were improperly interfering with necessary social change.  Some reformers even argued that courts should not be allowed to examine reform laws at all. 
  • Generally, New England courts invoked substantive due process more sparingly than courts in other regions.  The memory of the Dartmouth College case was still strong, and the courts frequently invoked the anti-Dartmouth laws their states had enacted as being a bar to close judicial scrutiny of reform laws.   

Early regulatory cases and anti-Dartmouth sentiment:

Thorpe v. Rutland & Burlington Railroad Co. – Vermont, 1855 (27 Vt. 140); Commonwealth v. Eastern Railway Co. – Massachusetts, 1869 (103 Mass. 254)

  • New England legislatures and courts had applied anti-Dartmouth laws (that is, laws requiring companies to agree to be bound by regulatory laws as a condition of incorporation) to enact and uphold such laws before the railroad era. 
  • In Thorpe, Vermont Justice Isaac Redfield, upholding a law that required railroads to build cattle guards along their tracks, signaled that that the anti-Dartmouth tradition would continue even in an era of corporate expansion and that in New England, the tradition would serve as a powerful counter to substantive due process.  Redfield made clear that legislatures could not enact reform laws that destroyed corporate profits or fundamentally altered a company’s character, but all other regulation that arguably promoted the public welfare would be upheld.  Redfield also promoted this principle nationally in his influential treatise on railroad law, written after he left the bench. 
  • In Eastern Railway, Massachusetts’s supreme court agreed with Redfield and upheld a law requiring the railroad to build a station at a particular point on its line.  Even though the railroad did not want the station, the court concluded the legislature had the power to impose any requirement reasonably connected to the railroad’s business.  The court also rejected the railroad’s substantive due process challenge, pointing out that the railroad would own the station even though construction was compelled by the state.     

The battle begins – workplace laws:

Commonwealth v. Hamilton Manufacturing Co. – Massachusetts, 1876 (120 Mass. 383); Commonwealth v. Perry – Massachusetts, 1891 (28 N.E. 1126); State v. Browne & Sharp Manufacturing Co. – Rhode Island, 1892 (25 A. 246)

  • From the 1880’s on, one of the American labor movement’s key goals was to reduce the number of hours in the standard work day and secure minimum wage laws.  Between 1890 and 1920 many states experimented with limited wage and hour laws.  Some laws targeted working women on the theory that they, as the frailer sex, needed special protection; some targeted public works projects on the theory that local governments had the right to set minimum wages and limit workers’ hours as conditions of government contracts. 
  • The first phase of the battle over substantive due process in New England focused on workplace lawsHamilton Manufacturing presented one of the earliest challenges to a state workplace safety law (in this case, a Massachusetts law setting maximum hours of work for women and children).  Courts often struck down such laws (see § __),  but Massachusetts’s court made clear that in general, it would not follow this path.  The court reasoned that limiting daily hours at a particular place of work was a reasonable safety measure and that as long as the legislature did not restrict the total amount of work an employee could do for her collective employers or that an employer could extract from its employees collectively, it did not violate either’s property rights as to labor. 
  • Rhode Island demonstrated even a stronger instinctive hostility to substantive due process in Browne & Sharp, upholding a law that required employers to pay wages at least once a week and not delay payment.  The state’s supreme court held that because Rhode Island had an anti-Dartmouth law, the wages law did not impair the company’s rights under its charter.  It also firmly rejected an argument, accepted by many other states, that the law impaired employers’ and employee’s right to negotiate freely with each other over wage payment:  the justices concluded, showing a sensibility not adopted by most courts until the 1930s, that as a practical matter, such negotiations could never be on an equal footing and that the state had power to help even the balance.  Massachusetts followed suit in the House Bill case.
  • The Perry case is important because it represented a rare departure from the Massachusetts court’s usual wariness of substantive due process – and provided an early glimpse into Oliver Wendell Holmes’s style of reasoning, one that would help immortalize him after he ascended to the U.S. Supreme Court in 1902.  In Perry, the majority struck down a law prohibiting textile factories from docking workers’ pay for imperfections in weaving work; it reasoned that to do otherwise would effectively force the employer to pay for work not properly done.  Holmes, using typically elegant but elliptical prose, viewed the problem from the exact opposite angle:  the legislature could say whether employer or employee would bear the initial cost of defective work, and the law did not prevent employers from suing their workers after wages were paid.    
Winslow Homer, "New England Factory Life - Bell Time" (1868) - courtesy Boston Public Library

Lewis Hine -Thread spinner, Amoskeag Mills, Manchester, Newe Hampshire - courtesy Wikimedia Commons

“[A]ll which goes to the constitution of the corporation and its beneficial operation is granted by the legislature, and cannot be revoked … Any act essentially paralyzing this franchise, or destroying the profits therefrom arising, would no doubt be void.  But beyond that, the entire power of the legislative control resides in the legislature, unless such power is expressly limited in the grant to the corporation.” – Justice Isaac Redfield, in Thorpe 

“I suppose this act was passed because the operatives, or some of them, thought that they often were cheated out of a part of their wages under a false pretense that the work done by them was imperfect, and persuaded the legislature that their view was true. … The statute, however construed, leaves the employers their remedy for imperfect work by action.  The objection that this remedy is practically worthless is, I apprehend, no less true, although for different reasons, if the workman’s wages should be detained unjustly.” – Justice Oliver Wendell Holmes (dissenting), in Perry

“If it be said that, however right and powerful corporations may be, and however poor and weak their employees, the latter are not obliged to work for the former, and, if they choose to work for corporations, they can … make such agreements as they see fit, and thus protect themselves, then it may be replied that poverty and weakness can wage but an unequal contest with corporate wealth and power, and that the legislature in granting valuable corporate powers and privileges might be willing to do it … only on condition of minimizing corporate power to drive hard bargains with their employees, who, too often in the sharp and bitter competition for work, have to submit to such terms and conditions as their employers see fit to prescribe.” – Justice __, in Browne & Sharpe