The rise of substantive due process:
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)
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)
| Winslow Homer, "New England Factory Life - Bell Time" (1868) - courtesy Boston Public Library ![]() “[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 |
EMPIRE OF LAWS - The Legal History of the 50 American States > 1. NEW ENGLAND LEGAL HISTORY > 1.4. New England (1865-1900): The Republican Era > 1.4.1. New England (1865-1900): Civil Rights After the Civil War > 1.4.2. New England (1865-1900): The Women's Rights Revolution Continues > 1.4.3. New England (1865-1900): The Beginnings of the Regulatory State >