In dealing with the jurisprudential legacy of the Taft Court, one is struck by great incongruities. On the one hand, the conservative nature of the Court’s majority tended to favor business against government regulation, the status quo, and property rights, while opposing labor unions. On the other hand, the Court sustained national power, restricted property rights to accommodate the new idea of zoning, took a broad view of interstate commerce, and began the revolution in civil liberties through the process of incorporation.
The conservative, indeed the reactionary label often applied to the Taft Court stems in large measure from its treatment of labor and of state reform legislation. There is no question that the majority of the Taft Court justices held definite antilabor prejudices.
Labor leaders thought that they had won a major victory in the Clayton Act of 1914. Section 6 had explicitly declared that labor did not constitute a commodity or an article of commerce and that consequently the antitrust laws should not be interpreted to forbid unions from seeking their legitimate objectives. Section 20 prohibited federal courts from issuing injunctions or restraining orders in labor disputes unless necessary to prevent damage to property, and also forbade injunctions against peaceful picketing or primary boycotts.
The Supreme Court ruled on these sections in Duplex Printing Press Company v. Deering (254 U.S. 443, 1921). The case had arisen when unions boycotted a manufacturer’s products in New York to enforce a strike in Michigan. Justice Mahlon Pitney ruled that the law had not legitimized such secondary boycotts and that Section 6 had not provided a blanket exemption from the antitrust laws. Its wording only protected unions in lawfully carrying out their legitimate objectives; since secondary boycotts were unlawful, neither Section 6 nor Section 20 applied. Moreover, Pitney interpreted Section 20 to mean that injunctions could be issued not only against the immediate parties—the employer and his striking workers— but also to restrain another union from supporting the strikers.
The Duplex case came down immediately after Truax v. Corrigan (257 U.S. 312, 1921), in which the Court struck down a state anti-injunction statute. In this case, an Arizona restaurant owner had sought an injunction in state court against peaceful pickets, claiming the state law that denied him that injunction had deprived him of his property rights without due process of law. Chief Justice Taft agreed and declared the law unconstitutional as an arbitrary and capricious exercise of power and a highly injurious invasion of property rights.
Labor’s supposed protection under the Clayton act suffered further erosion in the two Coronado Coal cases in 1925 (Coronado Coal Co. v. United Mine Workers, 268 U.S. 295). The United Mine Workers had been trying to unionize southern coal fields to prevent the ruination of northern mines by the cheaper southern coal. Following the standard set out in U.S. v. E.C. Knight, Chief Justice Taft ruled that coal mining did not constitute interstate commerce. A strike, as the simple withholding of labor, could not be enjoined under the Clayton act. But a strike that aimed at stopping the interstate shipment of nonunion coal certainly fell within the proscriptions of the Sherman Act. Therefore, any labor activity that had the intent, and not just an incidental result, of interfering with interstate commerce violated the antitrust laws.
Two years later, in Bedford Cut Stone Company v. Journeymen Stone Cutters Association, the Court again showed how it could manipulate definitions to restrict labor. In conformity with their union’s constitution, a handful of peaceful stonecutters refused to work on limestone cut by nonunion workers in the unorganized Bedford Cut Stone Company. The firm sought an injunction, but in order to enjoin the strikers, the lower court had to rely on the Sherman Act’s restriction on secondary boycotts. The Supreme Court agreed with this approach and then justified it by turning a very local and limited strike into a burden on the stream of interstate commerce. Reasonable restrictions on trade caused by industry would be tolerated by the Court under the rule of reason, but the bench would disregard its own rule when asked to apply it to the clearly reasonable activities of a labor union.
Protective legislation also fell on judicial hard times, but even some conservatives protested when the majority resurrected the Lochner doctrine (Lochner v. New York, 198 U.S. 45, 1905) in Adkins v. Children’s Hospital (261 U.S. 525, 1923). In striking down a federal statute establishing minimum wages for women in the District of Columbia, Justice Sutherland reaffirmed the paramount position of freedom of contract in economic affairs. Freedom, he declared, ‘‘is the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.’’ Emancipated by the Nineteenth Amendment, women no longer had need for protective laws, but could work for whatever amount they freely chose to contract for, just like men.
The decision shocked the nation for the holding as well as for the reasoning behind it. Most people had assumed that after Muller v. Oregon (208 U.S. 412, 1908) and Bunting v. Oregon (243 U.S. 426, 1917), the Court had accepted the need to protect certain classes of society through the state’s police power. Justice Sutherland ignored a decade of cases and went back to Lochner; even in the conservative 1920s, his opinion seemed overly reactionary. He launched into a vigorous attack on minimum wage legislation of any sort. Wages constituted the ‘‘heart of the contract’’ and could never be fixed by legislative fiat. Human necessities could never take precedence over economic rights, for ‘‘the good of society as a whole cannot be better served than by the preservation of the liberties of its constituent members.’’
But this court, one most protective of property rights, also handed down the landmark ruling in Euclid v. Ambler Realty (272 U.S. 365, 1926). Among conservatives, property had always held a nearly sacred status, and the core of substantive due process had been the almost unlimited right of an owner to use and dispose of property. In 1917, the Court had struck down a local ordinance prohibiting blacks from living in certain areas but had done so not on equal protection grounds, but rather because the rule deprived people of their right to buy and sell property (Buchanan v. Warley, 254 U.S. 600, 1917).
During the first quarter of the twentieth century many municipalities enacted comprehensive land use or zoning plans in an effort to manage growth and sustain the aesthetic nature of the community. The codes varied, but nearly all of them included some limits on land use in certain areas and placed limits on the type and size of buildings that could be erected. A commercial establishment, for example, could not be built in an area designated for residential use. Land owners and developers challenged these codes on a variety of constitutional grounds, but state courts disagreed on their legitimacy. Eventually the challenge to the zoning ordinance of Euclid, Ohio, reached the high court in 1926.
The author of the six-to-three majority opinion upholding the zoning ordinance was George Sutherland, the same justice who had written Adkins. Justice Sutherland’s opinion described the zoning act not as a deprivation of property but as an enhancement. Common law had long allowed for the abatement of nuisances even if doing so restricted property rights, since the end result would be the enhancement of value in all adjoining property. The fact that Euclid was undergoing rapid expansion could not be denied, and overcrowding as well as chaotic development would be harmful to all property owners. The justice may also have been influenced by the fact that when Ambler had bought the property the zoning ordinance had already been in effect, and this undermined the company’s claim that its property had been taken without due process; he might have thought differently had the ordinance been passed after Ambler had purchased the land.
Ever since Barron v. Baltimore (7 Pet. 243, 1833), the Bill of Rights had been held to apply only to the federal government; although some people argued that the Fourteenth Amendment had extended those guarantees to the states, that view had not yet gained Court approval. In Prudential Insurance Company v. Cheek (259 U.S. 530, 1922), the Court reaffirmed that state infringement of civil liberties remained beyond the control of the federal government or its courts. The Fourteenth Amendment, according to Justice Pitney, had not extended the Bill of Rights to the states. He thus denied Justice Brandeis’s argument, made three years earlier in his dissent in Gilbert v. Minnesota (254 U.S. 325, 1920), that the liberty guaranteed by the Fourteenth Amendment went beyond property rights to include personal freedoms as well.
The first fruits of that dissent appeared in 1922, when the Court struck down a state statute that forbade the teaching of foreign languages in elementary schools. In Meyer v. Nebraska (262 U.S. 390, 1922), Justice McReynolds applied the Lochner doctrine, declaring that liberty denotes:
not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
To be sure, Justice McReynolds found property rights involved in the case, since the Nebraska law ‘‘materially’’ interfered ‘‘with the calling of modern language teachers.’’ But he also found the measure a violation of free speech. The goal of the legislature to foster ‘‘a homogeneous people with American ideals’’ was understandable in light of the recent war, but now ‘‘peace and domestic tranquility’’ reigned, and he could find no adequate justification for the restraints on liberty. Without using the exact words, the justice in effect applied the clear and present danger test and found the statute lacking.
Two years later, Justice McReynolds spoke for a unanimous Court in Pierce v. Society of Sisters (268 U.S. 510, 1925). The Ku Klux Klan had pushed through a law in Oregon requiring children to attend public schools, with the clear intent of driving the Catholic schools out of existence. Again, the justice found ‘‘no peculiar circumstances or present emergencies’’ to justify such an extraordinary measure. The law interfered with personal and property rights. ‘‘The child is not the mere creature of the State,’’ he wrote; ‘‘those who nurture him and direct his destiny have the right, coupled with the high duty, to prepare him for additional obligations.’’ Moreover, the law directly attacked the vested property rights of private and parochial schools. Justice McReynolds had only hinted at the constitutional foundation for parochial education in Meyer; he firmly established it in Pierce.
Justice McReynolds found the justification for Meyer and Pierce totally within the due process clause of the Fourteenth Amendment; he applied the Lochner doctrine but intimated that other than property rights might be protected as well. Civil Liberties Union attorneys picked up on the justice’s two school opinions and Justice Brandeis’s Gilbert dissent and decided to challenge directly the traditional doctrine that the Bill of Rights did not apply to the states. Their opportunity came in Gitlow v. New York (268 U.S. 562, 1925).
The Gitlow case posed a challenge to New York’s 1902 Criminal Anarchy Act. Benjamin Gitlow, a leading figure in the American Communist Party, had been convicted for publishing a radical newspaper, a ‘‘Left-Wing Manifesto,’’ and other allegedly subversive materials. If Fourteenth Amendment liberty reached as far as Justice McReynolds had suggested, his lawyer argued, then surely it would include the protection of the press and speech. Although the Court affirmed the conviction, Justice Sanford noted that ‘‘for present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights protected by the due process clause of the Fourteenth Amendment from impairment by the States.’’ Thus, for the first time, the Supreme Court put forward what came to be known as the doctrine of incorporation, by which the Fourteenth Amendment ‘‘incorporated’’ the liberties protected in the Bill of Rights and applied them to the states.
In its dealings with free speech—even after agreeing that the First Amendment applied to the states as well—the Taft Court nonetheless continued to use the test of ‘‘clear and present danger’’ that Justice Holmes had enunciated in Schenck v. United States (249 U.S. 47, 1919). Although Holmes had tried in his dissent in Abrams v. United States (250 U.S. 616, 1919) later that year to make the test more speech protective, a majority of the Court always managed to find danger in the writings and speech of those on the Left. It remained for Louis Brandeis, in Whitney v. California (274 U.S. 357, 1927), to express what has become the bedrock principle of First Amendment jurisprudence: freedom of speech is a necessary component of democratic society.
Charlotte Anita Whitney, a niece of Justice Stephen J. Field and ‘‘a woman nearing sixty, a Wellesley graduate long distinguished in philanthropic work,’’ had been convicted under the California Criminal Syndicalism Act of 1919 for helping to organize the Communist Labor Party there. The law made it a felony to organize or knowingly become a member of an organization founded to advocate the commission of crimes, sabotage, or acts of violence as a means of bringing about political or industrial change. Miss Whitney denied that it had ever been intended for the Communist Labor Party to become an instrument of crime or violence; nor was there any proof that it had ever engaged in violent acts. Nevertheless, the conservative majority, led by Justice Sanford, upheld the act as a legitimate decision by the California legislature to prevent the violent overthrow of society. The due process clause did not protect one’s liberty to destroy the social and political order.
Because of technical issues, Justice Brandeis chose not to dissent; however, his concurring opinion, joined by Justice Holmes, provided an eloquent defense of intellectual freedom unmatched for its powerful reasoning in the annals of the Court. The majority, Justice Brandeis claimed, not only here but also in other speech cases, was operating on a totally inappropriate set of assumptions. They had measured the limits of free speech against potential danger to property, thus ignoring the benefits that free exchange of ideas conferred on society as a whole. He agreed that under certain circumstances a legislature could limit speech, but the proper test for exercising that power would be whether the words posed a clear and imminent danger to society, not just to property interests. Suppression of ideas worked a great hardship on society, and before that could be allowed, the Court had the responsibility of developing objective standards, a responsibility that it had thus far failed to meet. The justice made it quite clear that, like Justice Holmes, he did not fear ideas, and Americans need not do so either. Moreover, Justice Brandeis set out what would become the basis for first American jurisprudence.
Justice Brandeis saw free speech as an essential aspect of citizenship. Men and women had the duty in a democracy to be good citizens, which meant being informed on the issues confronting them. How could they make intelligent decisions about these matters if they lacked basic information about them? How could they judge whether one side or the other had the better argument unless they could hear both sides and then join in the debate? The fact that some viewpoints ran against the grain or disturbed popular sensibilities made no difference; history was replete with examples of unpopular ideas that had eventually gained public acceptance. The justice thus provided a positive justification for protection of speech: the necessity for the citizenry to be fully informed about issues and to be aware of all viewpoints. But he would not limit First Amendment protection to political speech alone; his opinion in Whitney clearly values speech as a cultural, social, and educational as well as a political value in a free society.
The criminal law provisions of the Bill of Rights, found in the Fourth through Eighth Amendments, had also never been applied to the states, although many states had written some of these guarantees into their constitutions. In the 1920s, the Court for the most part preferred to leave the control of criminal justice in the hands of the states, although in the face of outright abuse of fair procedures, it was willing to extend federal standards and authority.
The decade had started with the Silverthorne Lumber decision (Silverthorne Lumber Co. v. United States, 251 U.S. 385, 1920), in which an outraged Justice Holmes had chastised the Department of Justice for seizing books and papers from the suspects’ office ‘‘without a shadow of authority.’’ Six other members of the Court had joined in his expansion of the exclusionary rule, ensuring that the government could not benefit from illegally secured evidence. But the flood of cases in state and federal courts growing out of efforts to enforce the Nineteenth Amendment (Prohibition) led to some retreat from this position. In Byars v. United States (273 U.S. 28) and Gambino v. United States (275 U.S. 310) in 1927, the Court developed what came to be known as the ‘‘silver platter’’ doctrine: evidence obtained in an illegal state search would be admissible in a federal court so long as there had been no federal participation. The doctrine invited the abuses that followed; state law enforcement officials blatantly violated fair procedures (often in violation of their state laws) and then turned the evidence over to federal officers, who secretly knew about, and had often instigated, the illegal search. Not until 1960 did the Court abolish the silver platter doctrine in Elkins v. United States (364 U.S. 206, 1960).
Prohibition, in fact, became a law enforcement nightmare. Many Americans deliberately violated the law, and bootleggers applied the latest technology to their efforts to give a thirsty citizenry what it wanted. They used a relatively new invention, the automobile, to run illegal liquor into the country from Canada or from country stills into the cities. In December 1921, federal agents stopped a car outside Detroit, which, because of its proximity to Ontario, Canada, had become a major entrepot for imported liquor. The agents searched the car without a warrant and found sixty-eight quarts of whiskey and gin behind the upholstery. After conviction for violation of the Volstead Act, the defendants appealed to the Supreme Court, claiming that their Fourth Amendment rights had been violated.
By a seven-to-two vote, the Court upheld the conviction in Carroll v. United States (267 U.S. 132, 1925). Chief Justice Taft found the search reasonable because the agents had had probable cause; the defendants, all suspected of previous bootlegging operations, had been traveling on a road frequently used by smugglers. Because of time constraints, the officers had been unable to get a warrant; if they had applied for one, the car would have been gone by the time it arrived. Thus, the Court carved the automobile exception out of the Fourth Amendment’s requirement that no search or seizure take place without a warrant. When a warrant could be reasonably secured, Taft urged, it should be; otherwise, police did not need warrants to stop and search automobiles. The decision generated much criticism from legal scholars, but the Carroll doctrine is still the law.
Technology also gave the government new means to prosecute its fight against crime, including the ability to pry into the private affairs of a suspect without actually entering the premises. By a bare majority, the Court gave its blessing to the wire tapping of telephones in Olmstead v. United States (277 U.S. 438, 1928). Chief Justice Taft took a formalistic view of wire tapping that completely ignored the Fourth Amendment’s intent. There had been no actual entry, but only the use of an enhanced sense of hearing, he claimed, and to pay too much attention to ‘‘nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore.’’
The Taft opinion elicited dissents from Justices Butler, Holmes, and Brandeis. In a well-reasoned historical analysis, the generally conservative Justice Butler repudiated Taft’s sterile interpretation of what the Fourth Amendment meant. Justice Holmes, in a comment that soon caught the liberal imagination, condemned wiretapping as ‘‘a dirty business.’’ But the most impressive opinion came from Justice Brandeis, who forthrightly declared that he considered it ‘‘less evil that some criminals should escape than that the government should play an ignoble part.... If government becomes a lawbreaker, it breeds contempt for law.’’
The most noted and influential part of Justice Brandeis’s dissent dealt with the question of privacy. The framers of the Constitution, Brandeis wrote, ‘‘sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized man.’’ That passage would be picked up and elaborated on until finally, in Griswold v. Connecticut (381 U.S. 419, 1965), the Court recognized privacy as a constitutionally protected liberty. Wiretapping remained legally permissible for many years, although Congress in 1934 prohibited admitting wiretapping evidence in federal courts. Not until 1967, in Berger v. New York (388 U.S. 41), did the Court finally bring wiretapping within the reach of the Fourth Amendment.
Although the Taft Court preferred to leave criminal matters to the states, occasionally it did interfere. One case is notable because it affected race relations, an area that the Court considered wholly within state authority. The racial tensions following World War I had led to a series of urban riots in the North and triggered a wave of lynchings in southern states. Lynching offended the Court as nonviolent forms of discrimination did not. In Moore v. Dempsey (261 U. S. 86, 1923), Justice Holmes ruled that a federal court should hear the appeal of five Negroes, convicted of first-degree murder by an Arkansas state court, where the constant threat of mob violence had dominated the proceedings. Such an atmosphere, he held, amounted to little more than judicially sanctioned lynching, and when state courts could not provide minimal procedural fairness, the federal courts had a clear duty to ‘‘secure to the petitioners their constitutional rights.’’
The Taft Court generally showed very little concern over issues of racial prejudice, whether it applied to African Americans or to Asians, and in several cases, such as Ozawa v. United States (260 U.S. 178, 1923) and United States v. Bhagat Singh Thind (261 U.S. 204, 1923), interpreted the Constitution as giving Congress full plenary power over who could immigrate and become an American citizen.
The superpatriotism of the decade manifested itself in the Court’s denial of citizenship to aliens who, despite many exemplary qualities, happened to be pacifists. In a noted case, United States v. Schwimmer (279 U.S. 644, 1929), an older Quaker woman of unblemished character had refused to promise to bear arms in defense of the country and had denied naturalization as a result. The Court upheld the ruling and drew from Justice Holmes one of his most eloquent dissents. ‘‘If there is any principle of the Constitution,’’ he declared, ‘‘that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought we hate.’’ He failed to see how the country would suffer by taking as citizens people ‘‘who believe more than some of us do in the teachings of the Sermon on the Mount.’’
The indifference to the lack of fair procedure for aliens reflected in part the Taft Court’s general attitude toward civil liberties and in part the growing public animus toward aliens and all things foreign. Few voices protested the Court decisions, for even the liberals of the time recognized a distinction between the rights of an American citizen and the privileges accorded to an alien. Civil liberties jurisprudence, as well as popular ideas on this subject, had not yet fully developed. It is not so surprising, then, that the Supreme Court showed a minimal concern in this area.
One case from this time that shocks the modern conscience and displays in full the Taft Court’s indifference to individual liberties, dealt not with people of color or aliens or pacifists, but with a white southern girl, Carrie Buck. The eugenics movement that spread across the United States in the early twentieth century led a number of states to enact involuntary sterilization laws in efforts to ‘‘improve’’ the race. Virginia enacted such a law, and the superintendent of the State Colony for Epileptics and Feeble-Minded at Lynchburg decided to test its constitutionality.
The person he chose for his test case was eighteenyear- old Carrie Buck. A victim of rape, Buck had become pregnant, and the family with which she was living had her committed to the Lynchburg institution. There a relatively primitive IQ test showed her to have the intelligence of a nine-year-old. Her mother, Emma, also confined to the colony, tested out at eight years. After Buck gave birth to her daughter, an administrative panel recommended that she be sterilized. Her attorney, paid for by the institution, put on a weak defense, since he admittedly agreed with the sterilization policy. Nonetheless, he carried an appeal to the Supreme Court and there offered an equal protection argument; the law, he claimed, discriminated against people confined to institutions and denied them their ‘‘full bodily integrity.’’ Justice Holmes, speaking for an eight-to-one Court in Buck v. Bell (274 U.S. 200, 1927), dismissed all of these arguments in a short, five-paragraph opinion, three paragraphs of which described the facts of the case. He dismissed the equal protection claim as ‘‘the usual last resort of constitutional arguments’’ and declared that ‘‘three generations of imbeciles are enough.’’ Only Justice Butler dissented without opinion.
The case has had a bad odor about it ever since, but the worst aspect is that years later it turned out that Buck had not been feeble minded. She had advanced with her class grade by grade in public school until taken out to work in her foster home. Her final report card rated her as ‘‘very good—deportment and lessons.’’ In her later years she had been active in reading groups and dramatics and, despite her very hard life, a social worker described her as an ‘‘alert and pleasant lady.’’ There were no imbeciles at all among the three generations of Buck women.
The Court over which William Howard Taft presided from 1921 until 1930 left a mixed legacy. Its probusiness, anti-labor decisions have been for the most part discredited, with the exception of the broad stream-of-commerce interpretation it gave to congressional power under the commerce clause. The decisions involving substantive due process and freedom of contract that it used to justify these decisions led to a popular interpretation that the Court, like the other branches of government in the 1920s, favored big business above all other interests. Following the Depression, however, liberal groups won control of the Congress and the White House, but the Four Horsemen clung to an outmoded legal classicism that eventually led to the constitutional crisis of 1937.
Yet even while protecting business interests, the Court slowly began the process of incorporation by which the Fourteenth Amendment ‘‘incorporated’’ the protections of the Bill of Rights and applied them to the states. Although the process did not progress very far in the 1920s, it laid the foundation for the great revolution in civil liberties that culminated during the Warren Court (1953–1969). The concern for individual liberties has been a major part of the Court’s docket ever since.
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited