2.4.1. The MId-Atlantic States (1865-1900): The Regulatory State and Its Opponents


  • The rise of great cities and the steady growth of commerce and industry in the mid-Atlantic states opened the door to an ever-expanding body of laws and agencies designed to address the many problems that arose from urbanization and industrialization.  After 1875, mid-Atlantic legislatures began to enact pure-food and public health laws; laws regulating physicians, pharmacists and other professions; laws for conservation of fish, game and soil; laws regulating labor-management relations, unfair business practices and workplace safety; and laws designed to end slum housing conditions, provide adequate urban transit and solve other problems of urbanization.  The stream of laws grew steadily to the end of the century, although it did not reach its peak until the Progressive era (1900-1925).
  • Landlords and businesses in the mid-Atlantic states 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 of them that reformers complained the courts were improperly interfering with necessary social change. 

The battle over reform laws begins:  Housing laws

In re Jacobs – New York, 1885 (98 N.Y. 98); Health Dept. of City of New York v. Rector of Trinity Church – New York, 1895 (39 N.E. 833)

  • In Jacobs, New York’s highest court struck down an 1884 anti-sweatshop law that prohibited the manufacture of cigars in tenement housing.  Jacobs is often cited by scholars as an egregious example of use of substantive due process to thwart legitimate reform, the court’s opinion was more nuanced.  The justices denounced the law’s interference with liberty and property rights, but they viewed the main problem as one of discrimination.  They could see no relation between the law and safety:  workplace hazards of cigar-making, such as inhalation of tobacco dust, were not limited to tenements.
  • Ten years later, in Trinity Church, the court upheld a major tenement law requiring landlords to supply water on each tenement floor.  Justice Rufus Peckham, speaking for the majority, recognized the urgency of correcting slum housing problems, but He also cautioned that the court would impose limits on the extent of reform – for example, any effort by authorities to force landlords to install more than one water tap on each floor would be struck down as unreasonable.  Judge __ Bartlett, who dissented, argued that was not enough:  the law should be struck down because it did not explicitly impose such a limit. 

“It cannot be perceived how the cigar maker is to be improved in his health or his morals by forcing him from his home and its hallowed associations and beneficent influences, to ply his trade elsewhere. … Such governmental interferences disturb the normal adjustments of the social fabric, and usually derange the delicate and complicated machinery of industry and cause a score of ills while attempting the removal of one.” – Justice Robert Earl, in Jacobs

“The number of people that live in such [tenement] houses; their size; their ventilation; their cleanliness; their liability to fires; the exposure of their occupants to contagious diseases; … the tendencies to immorality and crime where there is very close packing of human beings of the lower order in intelligence and morals – all these are subjects which must arouse the attention of the legislator … We feel that we ought to ... hesitate before declaring any such law invalid, so long as it seems… reasonable in its provisions.” – Justice Rufus Peckham, in Trinity Church


The battle over reform laws begins:  Law in Coal Country

Godcharles v. Wigeman – Pennsylvania, 1886 (6 A. 354); Durkin v. Kingston Coal Co. – Pennsylvania, 1895 (33 A. 237); Commonwealth v. Brown – Pennsylvania, 1898 (8 Pa. Super. 339)
  • Coal mining in Pennsylvania was a rough business:  cave-ins, noxious gases and mining tools created constant danger for workers, and many mineowners were reluctant to make even the smallest improvements in wages and working conditions.  The Pennsylvania legislature made modest efforts to improve working conditions during the late 19th century but often fell afoul of the state’s supreme court, whose judges were among the nation’s strongest advocates of substantive due process and attacked reform laws much more bluntly than their New York colleagues. 
  • In Godcharles, the court struck down an 1881 law prohibiting employers from paying their workers in scrip redeemable only at company stores; it hinted that it might consider all workplace legislation an unconstitutional interference with employers’ and workers’ freedom of contract.
  • In Durkin, the court struck down an 1891 mine safety law, reasoning that because the law required mine foremen to pass safety tests and made owners automatically liable for injuries caused by safety violations, it violated both freedom of contract and the common-law principle that there can be no liability without fault.  The court indignantly rejected the concept, soon to be widely advocated by Progressives, that liability should be used as a means of allocating the inevitable cost of industrial accidents among all segments of society – employers and consumers as well as workers. 
  • In Brown, the court struck down an 1897 law prohibiting mine owners who paid workers based on the weight of coal they mined from screening the coal before weighing it.  Again, the court reasoned that this was an impermissible restriction of freedom of contract.

Tenement, New York City (1873) - courtesy New York Public Library










"I'll sweep your streets if no one else will" (1906) - Courtesy New York Public Library



















Child workers breaking coal, Wilkes-Barre, Pennsylvania, 1906 - courtesy Janet Lindemuth and Wikimedia Commons

“[The scrip law] is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to hi manhood, but subversive of his rights as a citizen of the United States.  He may sell his labor for what he thinks best ..; and any and every law that proposes to prevent him from so doing is an infringement of his constitutional privileges, and consequently vicious and void.” – Justice ___, in Godcharles

“[The mine safety law] is a strong case of binding the consequences of the fault of folly of one man upon the shoulders of another.  This is worse than taxation without representation.  It is civil responsibility without blame, and for the fault of another.” – Justice ___, in Durkin