2.5.1. The Mid-Atlantic States (1900-1925): Progressivism and Worker Safety


Substantive due process during the Progressive Era:  the struggle for reasonable wages and hours

People ex rel. Rodgers v. Coler – New York, 1901 (59 N.E. 716); People ex rel. Hoelderlin v. Kane – New York, 1914 (146 N.Y.S. 1105); Commonwealth v. Wormser – Pennsylvania, 1918 (103 A. 500)

  • 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 wage and hour laws.  Some laws targeted working women and children on the theory that they 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 when they handed out work contracts. 
  • New York and Pennsylvania courts viewed their states’ wage laws skeptically.  In Coler, New York’s highest court struck down an 1897 state law requiring cities to pay workers at least the local average wages for public works.  The court reasoned that cities, like private individuals, must have freedom to say what contract terms they would and would not agree to. 
  • Attitudes changed as the Progressive era wore on.  Early in the era, both the New York and Pennsylvania courts suggested the state could limit women’s and children’s hours of work as a public health and safety measure.  In Hoelderlin, decided 13 years after Coler, New York’s highest court noted that the legal tide was shifting in favor of wage and hours laws and upheld a law limiting women to 54 hours of work per week.  Pennsylvania’s supreme court reached a similar result in Wormser. 



Substantive due process during the Progressive Era:  workers compensation laws

Ives v. South Buffalo Railroad Co. – New York, 1911 (94 N.E. 431); Anderson v. Carnegie Steel Co. – Pennsylvania, 1916 (99 A. 215)

  • In most late-19th-century American factories conditions were dangerous, safety devices were few and serious injuries occurred with alarming frequency.  Early tort laws made it difficult for injured workers to obtain compensation from their employers, but the tide of worker lawsuits grew steadily and by the early 1900s there was consensus, even among employers, that a new system of compensating workers for injuries had to be found. 
  • All of the mid-Atlantic states enacted workers compensation laws in 1911 and 1912.  The laws made employers liable for worker injuries regardless of fault:  workers were guaranteed a modest compensation for their injuries without the need to sue their employer; employers had to pay regardless of fault, but they were insulated from the risk of high jury awards.  In Ives, perhaps the most notorious state court decision of the Progressive era, New York’s highest court struck down the state’s new workers compensation law. Justice William Werner, writing for the court, could not accept the no-fault aspect of the law:  he viewed the right to be free of liability in the absence of fault as a fundamental constitutional right.  Ives was widely criticized and was repudiated by New York voters:  Werner was defeated in the 1913 election for Chief Justice largely because of his opinion, and in 1914 voters amended the state constitution to allow workers compensation.  A new law was then enacted and was upheld. 
  • By contrast, Pennsylvania’s supreme court, which was often hostile to reform laws affecting the workplace, readily upheld its workers compensation law.  In Carnegie Steel, it viewed the law primarily as a modification of the state’s tort law rules and noted that traditionally, the law had given legislatures a free hand to alter tort law.   There was no legal challenge to workers compensation in New Jersey.




Substantive due process during the Progressive Era:  workplace safety  laws

People v. Lochner – New York, 1904 (69 N.E. 373), reversed, 198 U.S. 45 (1904); Commonwealth v. Plymouth Coal Co. – Pennsylvania, 1911 (81 A. 148), affirmed, 232 U.S. 531 (1914); Pennsylvania Coal Co. v. Mahon – Pennsylvania, 1922 (118 A. 491), reversed, 260 U.S. 393 (1922)

  • Lochner, in which the U.S. Supreme Court struck down a New York law limiting bakers’ hours of work as a safety measure, is the most famous decision of the Progressive era.  It has been held up countless times as the quintessential example of conservative judges’ use of substantive due process to strike down social reforms they do not like.  Often overlooked is the fact that the New York court of appeals had originally upheld the law and that t he Supreme Court itself was closely divided over the issue. 
  • In addition to limiting hours, the law at issue in Lochner contained other regulations making clear that the legislature was concerned mainly about the risk that exposure to flour dust posed to workers’ lungs.  Chief Justice Alton Parker, speaking for the New York court, recognized this and stated strongly that the court must defer to the legislature’s judgment that working hours were related to safety.  Three judges agreed with Parker; three dissenters argued that if exposure to flour was not harmful to housewives it could not be harmful to bakers, and that law unconstitutionally interfered with freedom of contract.     
  • Plymouth Coal and Mahon illustrated the Pennsylvania supreme court’s gradual warming toward safety laws as the Progressive era advanced; the U.S. Supreme Court remained ambivalent, however.  In Plymouth Coal, a mine owner challenged an 1891 law requiring owners to leave a pillar of coal at the corner of each mining tract in order to support adjacent property; the owner argued the law deprived him of his property right in the remaining coal.  The Pennsylvania court concluded without difficulty that the law was a legitimate exercise of the state’s police power:  here, safety outweighed the modest value of the coal in each pillar.  The Supreme Court agreed. 
  • Eleven years later, in Mahon, the Pennsylvania court upheld two controversial laws that required mine owners to support their property in order to prevent surface cave-ins. The majority believed the case was no different from Plymouth Coal:  the new laws were designed to meet safety concerns, and any burden they put on mine owners was incidental.  Justice John Kephart dissented:  he objected that the legislature had previously allowed owners to sell their property without surface support and could not change the law so as to deprive them of that right.  He also warned that the law would jeopardize Pennsylvania’s coal supply.  On appeal the Supreme Court, speaking through Justice Oliver Wendell Holmes, agreed with Kephart and held that the Mahon laws could not be viewed primarily as a safety laws. 


Substantive due process during the Progressive Era:  “no” to yellow-dog laws but “yes” to union parity:

Jacobs v. Cohen – New York, 1905 (76 N.E. 5); People v. Marcus – New York, 1906 (77 N.E. 1073); Cyrus Currier & Sons v. Int’l Molders Union – New Jersey, 1921 (115 A. 66); Exchange Bakery & Restaurant, Inc. v. Rifkin – New York, 1927 (157 N.E. 130)

  • The mid-Atlantic states had more than their share of labor strife during the early 20th century, but their courts consistently strove to maintain a neutral position between labor and management, particularly as to the issue of whether employers could impose “yellow-dog” clauses requiring their workers to agree not to join a union, and, conversely, whether unions could picket and strike for “closed shops” requiring all employees to be union members. 
  • Early in the Progressive era, New York’s highest court held in Jacobs, over the vigorous dissent of two judges, that yellow-dog clauses were valid; but the following year it held in Marcus that unions and employers could also agree to closed shops.  New Jersey’s Chancery Court likewise held in Currier that “it is the master’s legal right to have his servants abide with him, free from interference of the union, as it is the right of the union to prosper unmolested by the employer,” and the marketplace, not the courts, must determine whether employers or unions would prevail.  However, the court criticized what it regarded as unfair practices on both sides – specifically, employers’ blacklisting of union activists and unions’ secret planting of supporters in non-union workplaces in order to persuade workers to join them.  In Exchange Bakery, New York’s highest court went a step further:  it indicated it would allow both yellow-dog clauses and closed-shop campaigns but that it would construe yellow-dog clauses liberally in favor of workers who later changed their minds.

“This [yellow-dog contract] was a form of slavery, even if voluntarily submitted to; for whoever controls the means by which a man lives controls the man himself.”Justice Irving Vann (dissenting), in Jacobs

Lewis Hine - 14-year-old worker in paper box factory (1913) - courtesy New York Public LIbrary

“It was once a political maxim that the government governs best which governs the least.  It is possible that we have not outgrown it but … it is proper for courts to bear it in mind … The power to deprive master and servant of the right to agree upon the rate of wages which the latter was to receive is one of the things which can be regarded as impliedly prohibited by the fundamental law.” – Justice  Denis O’Brien, in Coler


Justice William Werner, author of the Ives decision - courtesy Wikipedia

”The argument that the risk to an employee should be borne by the employer, because it is inherent in the employment, may be economically sound; but it is at war with the legal principle that no employer can be compelled to assume a risk which is inseparable from the work  of the employee, and which may exist in spite of a degree of care by the employer far greater than may be exacted by the most drastic law … [I]n everything within the sphere of human activity the risks which are inherent and unavoidable must fall upon those who are exposed to them.” – Justice William Werner, in Ives


“The courts are frequently confronted with the temptation to substitute their judgment for that of the Legislature.  A given statute, though plainly within the legislative power, seems to repugnant to a sound public policy as to strongly tempt the court to set aside the statute, instead of waiting, as the spirit of our institutions require, until the people can compel their representatives to repeal the obnoxious statute.” – Chief Justice Alton Parker, in Lochner

“It is obviously one of those paternal laws, enacted doubtless with the best intentions, but which in its operation must inevitably put enmity and strife between master and servant.  They are not left free to make their own bargains in their own way.” – Justice Denis O’Brien, in Lochner

“ Constitutional mandates and protections are swept aside, and the Legislature is supreme, while acting within any pretended scope of this power, so long as the state … asserts, ‘This is for the public good.’  … [I]t legalizes the division of property plan, a socialistic idea that nay yet be the law.”  - Justice John Kephart (dissenting), in Mahon





Brooklyn streetcar workers strike (1889) - courtesy New York Public Library

“The right of each [employer and union] to lawfully prosecute his affairs is equally within the protection of the law, and if in their competition for labor harm falls to one from the lawful promotion of the other’s business, the injury is an inevitable incident, legitimately inflicted and excusable.” – Justice __ Backes, in Currier

“[E]ven had it been a valid [yellow-dog] contract, … there is as yet no precedent in this court for the conclusion that a union may not persuade its members or others to end contracts of employment where the final intent lying behind the attempt is to extend its influence.” – Justice William Andrews, in Exchange Bakery