5.4.7. The Midwest, 1900-1925: Key Legal Figures

John B. Winslow (Wisconsin Supreme Court, 1891-1920)

  • Wisconsin was arguably the nation’s most innovative state during the Progressive era.  Winslow played a little-publicized but vital role in the preservation of those innovations. 
  • Winslow was born in Racine, Wisconsin in 1851; after service as a local judge, he was appointed to the state’s supreme court in 1891.  Winslow became Wisconsin’s chief justice in 1907, at a time when many Progressives were criticizing judges for being too quick to strike down reform laws and conservatives were urging judges to serve as a bulwark against perceived Progressive incursions on property and liberty rights. 
  • In 1909, Winslow embarked on a campaign to explain each side to the other.  In a series of speeches and articles which received national attention, he emphasized to conservatives that they must accept moderate change in order to avoid more radical change; he emphasized to Progressives that judges must interpret and defend constitutions “as they are, not as they would like to see them.”   
  • On the bench Winslow employed this philosophy, which he called “constructive conservatism,” and the good will gained from his campaign to persuade his colleagues uphold many major reform laws, including Wisconsin’s inheritance tax (1906), worker’s compensation law (1911) and its law creating the nation’s first agency to implement worker safety regulations (1916).

Roujet D. Marshall (Wisconsin Supreme Court, 1895-1918)

  • Marshall rose from humble beginnings through hard work and a lucky connection with lumber baron Frederick Weyerhaeuser; those forces shaped his legal outlook and made him the Wisconsin court’s leading conservative voice during the Progressive era. 
  • Marshall was born in New Hampshire in 1847; his family moved to Wisconsin when he was a child.  After spending his early life working on the family farm, Marshall apprenticed to become a lawyer, opened a practice in Chippewa Falls and soon became Weyerhaeuser’s legal counselor.  As a result, he amassed great wealth and was able to play an important legal role in the cartelization of the Wisconsin and Minnesota lumber industry.  Looking for new opportunities, he eventually worked his way up to a seat on Wisconsin’s supreme court.
  • Marshall served as the court’s leading constitutional originalist.  He was not opposed to all reform – indeed, he played an important behind-the-scenes role in shaping the state’s workers compensation law – but he consistently opposed Winslow’s view that constitutional interpretation should reflect modern social needs.  He argued that Wisconsin’s constitution and the concepts it embodied were, and must be, unchanging:  they could not be stretched by judges to fit changing times and changing social needs, as Winslow advocated.  Winslow and Marshall eloquently set forth the competing constitutional visions that framed Progressive-era jurisprudence; those visions continue to frame constitutional debate to this day. 

William D. Evans (Iowa Supreme Court, 1908-1934); Silas Weaver (Iowa Supreme Court, 1902-1923)

  • Not all Midwestern courts were not as sympathetic to Progrssive-era reforms as Wisconsin’s and Minnesota’s, but several that were not had judges who regularly spoke up in defense of reform laws.  Evans and Weaver played that role on the Iowa supreme court.
  • Weaver was born in New York in 1843, moved to Iowa as a young man, started his legal career and also served briefly in the state legislature.  Evans was born in Wisconsin in 1852 and moved to Iowa as a child.  After short service as trial judges, both men joined the supreme court during Iowa’s Progressive era.  They regularly dissented together when they felt the court was too eager to interpret reform laws narrowly or was otherwise acting against Progressive ideals. 
  • For example, in 1910 Evans and Weaver protested when their colleagues held that the state’s civil rights law did not protect black citizens from discrimination by private merchants, arguing that the law “was framed in language broad and comprehensive” and should be used to protect “this burdened race against the further burden of public discrimination and humiliation.”  The same year, they objected to a law providing for political appointments to police and fire commissions, arguing that the Progressive ideal of a non-political civil service was essential to preserve a republic form of government.   Evans and Weaver helped ensure that Iowa’s court applied substantive due process in a restrained fashion and did not pose a threat to Progressive-era reforms.   

Reuben M. Wanamaker (Ohio Supreme Court, 1913-1924)

  • With the possible exception of Illinois, the tension between state judges and Progressives was higher in Ohio than in any other Midwestern state.  The court struck down a number of reform laws between 1890 and 1910; unhappy Progressives tried to go around the court by amending the Ohio constitution to allow for such reforms.  In 1912 they succeeded.  A constitutional convention was called; it enacted and voters ratified more than 30 amendments authorizing reforms such as workers compensation laws, home rule and minimum wage and maximum hour provisions in municipal contracts.  As a result, the supreme court struck down very few reform laws after 1912. 
  • Wanamaker was the judicial embodiment of the rebellious spirit of 1912.  He was born in Ohio in 1866, after completing his legal training, he served as a district attorney and trial judge.  In 1912, as the convention was meeting, Wanamaker ran for the supreme court as a Progressive – the first time in many years that a candidate had run other than as a Democrat or Republican – and won.   He militantly defended the amendments whenever his colleagues showed any inclination to strike down post-1912 laws. 
  • For example, one 1912 amendment authorized the legislature to enact “yellow dog laws” prohibiting employers from discharging employees based on union membership.  In 1915, after the legislature did so, the court struck down the law.  The majority made it clear they did so reluctantly, and only because the U.S. Supreme Court had held that such laws were unconstitutional.  That was not enough for Wanamaker:  in a lengthy and colorful dissent, he criticized the federal court as “out of joint with the spirit of our American institutions.”  Wanamaker complained that “[e]very time a state or fed legis has undertaken to exercise the police power in preventing gross abuses that jeopardize life, liberty, health and public safety …, every mercenary interest affected thereby has claimed that its liberty of contract was being violated,” and that “[t]oo many judges know as men what they refuse to know as judges.”
  • Some years later, when his colleagues refused to interpret the 1912 local home rule amendment to allow cities to set telephone rates, Wanamaker responded with a lengthy history and defense of the 1912 movement and argued that the majority’s holding would destroy freedom in Ohio.  In his later years, Wanamaker was disabled by depression; he died in 1924.

John Commons (1862-1945)

  • Commons, though not a lawyer, played a central role in drafting many major Progressive-era laws and ensuring that they passed muster with state courts.  He started his career as a “professional reformer,” working for several of the foundations that late 19th century industrial magnates created to employ their wealth in good causes.  In 1904 Commons became a professor of economics and political science [ck] at the University of Wisconsin, where he spent the remainder of his career. 
  • Commons quickly became a confidant of Gov. Robert LaFollette, who consulted him on implementation of LaFollette’s reform ideas.  Commons was the principal author of laws establishing Wisconsin’s civil service commission (1905), public utility regulatory system (1907) and industrial safety commission (1911).  He also devised the technique of couching regulatory standards such as public employment qualifications, utility rates and safety standards in terms of “reasonableness” rather than absolute perfection; the technique allowed many Progressive reform laws to survive substantive due process scrutiny by the courts.
  • Commons remained active into the 1930s.  He wrote numerous works on law and social policy, including a massive History of Labor in the United States (1918).  He prepared the first American unemployment compensation law, which was adopted by Wisconsin in 1932 and became a model for other states.  Several of his students played key roles in creating the Social Security system during the New Deal (1935). 

John B. Winslow (Wisconsin)

Roujet D. Marshall (Wisconsin)

Reuben Wanamaker (Ohio)

John Commons (Wisconsin)