3.5.3 Old South (1877-1920): A Truncated Progressive Era


  • As the United States moved from an agricultural economy to a predominately industrial economy in the late 19th and early 20th centuries, most regions went through two phases of legal adjustment.  Between 1860 and 1880, in what can loosely be called the “Granger era” (see § _), northern and western states made a first effort at comprehensive corporate regulation by eliminating individual corporate charters in favor of general incorporation laws and by controlling railroad freight and passenger rates and other aspects of railroad operation (see §§ ___). 
  • In the 1890s, as urbanization and industrialization continued, calls arose across the United States for a broad variety of reforms to meet the new age including increased regulation of corporations; “cleaning up” government by replacing party bosses and machines with civil service systems and primaries; creating more types of taxes to match a more diversified economy; and providing at least minimal safety laws for industrial workers.  Between 1890 and 1915, most states passed through a Progressive era in which they enacted reforms from this menu. 
  • Progressive-era reforms provoked many legal challenges.  Challengers 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.  The debate was particularly active in the mid-Atlantic region, the Midwest and the Great Plains. 
  • The Old South had only a mild case of Progressivism.  The region had a single reform era, roughly matching the Progressive era, but reforms in the Old South were less extensive than elsewhere.  As with so much of Southern life, the effort was complicated by race.  Southern progressives  had to consider at all times whether reform would help retain the black labor force they needed and stanch emigration to the North, or whether it would raise Southern blacks’ hopes and ambitions in a way that would threaten the existing racial order.  The movement was also complicated by fears that regulation of working conditions and working hours for women and children would hamper the “new” South’s ability to catch up to other, more industrialized regions.      
 

 

Delaware

Maryland

Virginia

North Carolina

1877-1900

 

 

1890:  Child labor law

 

1887:  Labor bureau

1899:  Corporation commission

1900-1920

1917:  Workers compensation law

1917:  Income tax

1902:  Worker injury insurance law

1914:  Workers compensation

Direct primary law

Child labor law

Public service commission

1903:  Child labor law

1901/05:  Employer liability law

1905/09:  Railroad rate regulation law

1903:  Child labor law

1907:  Railroad commission (strong)

1907:  tax equalization

 

 

 

Luman v. Hitchens Bros. Co. – Maryland, 1899 (44 A. 1051); Starnes v. Albion Manufacturing Co. – North Carolina, 1908 (61 S.E. 525); Mt. Vernon Woodberry Cotton Duck Co. v. Frankfort Marine Accident & Plate Glass Insurance Co. – Maryland, 1909 (75 A. 105)

 

  • Challenges to Progressive-era reform laws were few and far between in the Old South – surprisingly so, given that the Old South was significantly more industrialized and more integrated into the national economy during this era than other parts of the South.  Only a few challenges of note appear in state court records for this era.
  • In Luman, decided at the beginning of the Progressive era in the South, Maryland’s supreme court struck down a law prohibiting company stores operated by western Maryland mining companies and other corporations from charging exorbitant prices.  The court had no problem with the concept of regulating store abuses, but it rejected an argument that the legislature could limit the law to industries in which abuse was a particular problem:  in order to survive a constitutional challenge, the law must apply to all companies. 
  • In the Starnes and Cotton Duck cases, decided later in the Progressive era, both the Maryland and North Carolina supreme courts upheld laws prohibiting employment of young children in factories.  North Carolina’s court noted that other courts, including the U.S. Supreme Court, had consistently upheld such laws.  Maryland’s law was challenged as discriminatory, because it carved out exceptions for children in canning factories and children who supported their families.  Taking a more deferential approach to reform than their predecessors in Luman, the Cotton Duck justices held that the classifications were reasonable and the law was valid.  
 

 Rhodes Mfg. Co., Lincolnton, N.C. National Child Labor Committee. No. 282. Girl on left said she was 10 years old and been in mill a long time more than a year. Spinner girl on right said she was 12 years.  Location: Lincolnton, North Carolina.

 Lewis Hine - child textile mill workers, Lincolnton, N.C., 1908 - courtesy Library of Congress

 

 Name: Dangerous Business. Boy working at canning machine with open gearing. Many suck machines and boys too. J. S. Farrand Packing Co. Witness--J. W. Magruder. July 7, 1909.  Location: Baltimore, Maryland.

 Lewis Hine - child cannery worker, Baltimore, Maryland, 1909 - courtesy Library of Congress

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“[Child labor laws] are founded upon the principle that the supreme right of the state to the guardianship of children controls the natural rights of the parent, when the welfare of society or of the children themselves conflict with parental rights.  In this country their constitutionality, so far as we can ascertain, has never been successfully assailed.” – Justice _ Brown, in Starnes

 

“The Legislature has determined that it is injurious to the health of children under 14 years of age to work in mills and factories, other than canning factories, and how is this court to determine that this is not so?  We cannot assume that the Legislature acted arbitrarily or unreasonably, but must presume, in the absence of any indication to the contrary, that the classification was based on reasonable grounds.” – Justice William Thomas, in Cotton Duck
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