The Theory of Social Revolutions

In 1785 the Massachusetts legislature chartered the Charles River Bridge Company to build a bridge between Boston and Charlestown, authorizing it, by way of consideration, to collect tolls for forty years. In 1792 the franchise was extended to seventy years, when the bridge was to revert to the Commonwealth. In 1828 the legislature chartered the Warren Bridge Company, expressly to build a bridge parallel to and practically adjoining the Charles River Bridge, the Warren Bridge to become a free bridge after six years. The purpose, of course, was to accelerate movement by ruining the Charles River Bridge Company. The Charles River Bridge Company sought to restrain the building of the Warren Bridge as a breach of contract by the State, but failed to obtain relief in the state courts, and before the cause could be argued at Washington the Warren Bridge had become free and had destroyed the value of the Charles River Bridge, though its franchise had still twenty years to run. As Story pointed out, no one denied that the charter of the Charles River Bridge Company was a contract, and, as he insisted, it is only common sense as well as common justice and elementary law, that contracts of this character should be reasonably interpreted so far as quiet enjoyment of the consideration granted is concerned; but all this availed nothing. The gist of the opposing argument is contained in a single sentence in the opinion of the Chief Justice who spoke for the majority of the court: "The millions of property which have been invested in railroads and canals, upon lines of travel which had been before occupied by turnpike corporations, will be put in jeopardy" if this doctrine is to prevail.21

The effect of the adoption by the Supreme Court of the United States of the New York theory of the Police Power was to vest in the judiciary, by the use of this catch-word, an almost unparalleled prerogative. They assumed a supreme function which can only be compared to the Dispensing Power claimed by the Stuarts, or to the authority which, according to the Council of Constance, inheres in the Church, to "grant indulgences for reasonable causes." I suppose nothing in modern judicial history has ever resembled this assumption; and yet, when we examine it, we find it to be not only the logical, but the inevitable, effect of those mechanical causes which constrain mankind to move along the lines of least resistance.

Marshall, in a series of decisions, laid down a general principle which had been proved to be sound when applied by ordinary courts, dealing with ordinary social forces, and operating under the corrective power of either a legislature or a praetor, but which had a different aspect under the American constitutional system. He held that the fundamental law, embodied in the Constitution, commanded that all contracts should be sacred. Therefore he, as a judge, had but two questions to resolve: First, whether, in the case before him, a contract had been proved to exist. Second, admitting that a contract had been proved, whether it had also been shown to have been impaired.

Within ten years after these decisions it had been found in practice that public opinion would not sustain so rigid an administration of the law. No legislature could intervene, and a pressure was brought to bear which the judges could not withstand; therefore, the Court yielded, declaring that if impairing a contract were, on the whole, for the public welfare, the Constitution, as Marshall interpreted it, should be suspended in favor of the legislation which impaired it. They called this suspension the operation of the "Police Power." It followed, as the "Police Power" could only come into operation at the discretion of the Court, that, therefore, within the limits of judicial discretion, confiscation, however arbitrary and to whatever extent, might go on. In the energetic language of the Supreme Court of Maine: "This duty and consequent power override all statute or contract exemptions. The state cannot free any person or corporation from subjection to this power. All personal, as well as property rights must be held subject to the Police Power of the state."22

Once the theory of the Police Power was established it became desirable to define the limits of judicial discretion, but that proved to be impossible. It could not be determined in advance by abstract reasoning. Hence, as each litigation arose, the judges could follow no rule but the rule of common sense, and the Police Power, translated into plain English, presently came to signify whatever, at the moment, the judges happened to think reasonable. Consequently, they began guessing at the drift of public opinion, as it percolated to them through the medium of their education and prejudices. Sometimes they guessed right and sometimes wrong, and when they guessed wrong they were cast aside, as appeared dramatically enough in the temperance agitation.

Up to about the middle of the last century the lawfulness of the liquor business had been unquestioned in the United States, and money had been invested as freely in it as in any other legitimate enterprise; but, as the temperance agitation swept over the country, in obedience to the impulsion given by science to the study of hygiene, dealing in liquor came to be condemned as a crime. Presently legislatures began to pass statutes to confiscate, more or less completely, this kind of property, and sufferers brought their cases before the courts to have the constitutionality of the acts tested, under the provisions which existed in all state constitutions, forbidding the taking, by the public, of private property without compensation, or without due process of law. Such a provision existed hi the constitution of the State of New York, adopted in 1846, and it was to invoke the protection of this clause that one Wynehamer, who had been indicted in 1855, carried his case to the Court of Appeals in the year 1856. In that cause Mr. Justice Comstock, who was one of the ablest jurists New York ever produced, gave an opinion which is a model of judicial' reasoning. He showed conclusively the absurdity of constitutional restrictions, if due process of law may be held to mean the enactment of the very statute drawn to work confiscation.23 This decision, which represented the profoundest convictions of men of the calibre of Comstock and Denio, deserves to rank with Marshall's effort in the Dartmouth College Case. In both instances the tribunal exerted itself to carry out Hamilton's principle of judicial duty by exercising its judgment and not its will. In other words, the judges propounded a general rule and then simply determined whether the set of facts presented to them fell within that rule. They resolutely declined to legislate by entering upon a consideration of the soundness or reasonableness of the policy which underlay the action of the legislature. In the one case as in the other the effort was unavailing, as Jefferson prophesied that it would be. I have told of Marshall's overthrow in the Charles River Bridge Case, and in 1887, after controversies of this category had begun to come before the Supreme Court of the United States under the Fourteenth Amendment, Mr. Justice Harlan swept Mr. Justice Comstock aside by quietly ignoring an argument which was unanswerable.24 The same series of phenomena have appeared in regard to laws confiscating property invested in lotteries, when opinion turned against lotteries, or in occupations supposed to be unsanitary, as in the celebrated case of the taxing out of existence of the rendering establishment which had been erected as a public benefit to relieve the City of Chicago of its offal.25 In fine, whenever pressure has reached a given intensity, on one pretext or another, courts have enforced or dispensed with constitutional limitations with quite as much facility as have legislatures, and for the same reasons. The only difference has been that the pressure which has operated most directly upon courts has not always been the pressure which has swayed legislatures, though sometimes both influences have combined. For example, during the Civil War, the courts sanctioned everything the popular majority demanded under the pretext of the War Power, as in peace they have sanctioned confiscations for certain popular purposes, under the name of the Police Power. But then, courts have always been sensitive to financial influences, and if they have been flexible in permitting popular confiscation when the path of least resistance has lain that way, they have gone quite as far in the reverse direction when the amount of capital threatened has been large enough to be with them a countervailing force.

As the federal Constitution originally contained no restriction upon the states touching the confiscation of the property of their own citizens, provided contracts were not impaired, it was only in 1868, by the passage of the Fourteenth Amendment, that the Supreme Court of the United States acquired the possibility of becoming the censor of state legislation in such matters. Nor did the Supreme Court accept this burden very willingly or in haste. For a number of years it labored to confine its function to defining the limits of the Police Power, guarding itself from the responsibility of passing upon the "reasonableness" with which that power was used. It was only by somewhat slow degrees, as the value of the threatened property grew to be vast, that the Court was deflected from this conservative course into effective legislation. The first prayers for relief came from the Southern states, who were still groaning under reconstruction governments; but as the Southern whites were then rather poor, their complaints were neglected. The first very famous cause of this category is known as the Slaughter House Cases. In 1869 the Carpet Bag government of Louisiana conceived the plan of confiscating most of the property of the butchers who slaughtered for New Orleans, within a district about as large as the State of Rhode Island. The Fourteenth Amendment forbade states to deprive any person of life, liberty, or property, without due process of law, and the butchers of New Orleans prayed for protection, alleging that the manner in which their property had been taken was utterly lawless. But the Supreme Court declined to interfere, explaining that the Fourteenth Amendment had been contrived to protect the emancipated slaves, and not to make the federal judiciary "a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve."26

Although, even at that relatively early day, this conservatism met with strong opposition within the Court itself, the pressure of vested wealth did not gather enough momentum to overcome the inertia of the bench for nearly another generation. It was the concentration of capital in monopoly, and the consequent effort by the public to regulate monopoly prices, which created the stress which changed the legal equilibrium. The modern American monopoly seems first to have generated that amount of friction, which habitually finds vent in a great litigation, about the year 1870; but only some years later did the states enter upon a determined policy of regulating monopoly prices by law, with the establishment by the Illinois legislature of a tariff for the Chicago elevators. The elevator companies resisted, on the ground that regulation of prices in private business was equivalent to confiscation, and so in 1876 the Supreme Court was dragged into this fiercest of controversies, thereby becoming subject to a stress to which no judiciary can safely be exposed. Obviously two questions were presented for adjudication: The first, which by courtesy might be termed legal, was whether the fixing of prices by statute was a prerogative which a state legislature might constitutionally exercise at all; the second, which was purely political, was whether, admitting that, in the abstract, such a power could be exercised by the state, Illinois had, in this particular case, behaved reasonably. The Supreme Court made a conscientious effort to adhere to the theory of Hamilton, that it should, in emergencies like this, use its judgment only, and not its will; that it should lay down a rule, not vote on the wisdom of a policy. So the judges decided that, from time immemorial, the fixing of prices in certain trades and occupations had been a legislative function, which they supposed might be classified as a branch of the Police Power, but they declared that with this expression of opinion their jurisdiction ended. When it came to asking them to criticise the propriety of legislation, it was, in substance, proposing that they should substitute their will for the will of the representatives of the people, which was impossible. I well remember the stir made by the case of Munn v. Illinois.27

Both in and out of the legal profession, those in harmony with the great vested interests complained that the Court had shirked its duty. But these complaints soon ceased, for a movement was in progress which swept, for the moment, all before it. The great aggregations of capital, which had been accumulating ever since the Charles River Bridge Case, not long after Munn v. Illinois attained to a point at which they began to grasp many important prerogatives of sovereignty, and to impose, what was tantamount to, arbitrary taxation upon a large scale. The crucial trial of strength came on the contest for control of the railways, and in that contest concentrated capital prevailed. The Supreme Court reversed its attitude, and undertook to do that which it had solemnly protested it could not do. It began to censor legislation in the interest of the strongest force for the time being, that force being actually financial. By the year 1800 the railway interest had expanded prodigiously. Between 1876 and 1890 the investment in railways had far more than doubled, and, during the last five years of this period, the increment had been at an average of about $450,000,000 annually. At this point the majority of the court yielded, as ordinary political chambers always must yield, to extraordinary pressure. Mr. Justice Bradley, however, was not an ordinary man. He was, on the contrary, one of the ablest and strongest lawyers who sat on the federal bench during the last half of the nineteenth century; and Bradley, like Story before him, remonstrated against turning the bench of magistrates, to which he belonged, from a tribunal which should propound general rules applicable to all material facts, into a jury to find verdicts on the reasonableness of the votes of representative assemblies. The legislature of Minnesota, in 1887, passed a statute to regulate railway rates, and provided that the findings of the commission which it erected to fix those rates should be final. The Chicago, Milwaukee & St. Paul Railway contended that this statute was unconstitutional, because it was unreasonable, and the majority of the Court sustained their contention.28 Justices Bradley, Gray, and Lamar dissented, and Bradley on this occasion delivered an opinion, from which I shall quote a paragraph or two, since the argument appears to me conclusive, not only from the point of view of law, but of political expediency and of common sense:–

"I cannot agree to the decision of the court in this case. It practically overrules Munn v. Illinois.... The governing principle of those cases was that the regulation and settlement of the fares of railroads and other public accommodations is a legislative prerogative, and not a judicial one. This is a principle which I regard as of great importance....

"But it is said that all charges should be reasonable, and that none but reasonable charges can be exacted; and it is urged that what is a reasonable charge is a judicial question. On the contrary, it is preëminently a legislative one, involving considerations of policy as well as of remuneration.... By the decision now made we declare, in effect, that the judiciary, and not the legislature, is the final arbiter in the regulation of fares and freights of railroads.... It is an assumption of authority on the part of the judiciary which, … it has no right to make. The assertion of jurisdiction by this court makes it the duty of every court of general jurisdiction, state or federal, to entertain complaints [of this nature], for all courts are bound by the Constitution of the United States, the same as we are."

There is little to add to these words. When the Supreme Court thus undertook to determine the reasonableness of legislation it assumed, under a somewhat thin disguise, the position of an upper chamber, which, though it could not originate, could absolutely veto most statutes touching the use or protection of property, for the administration of modern American society now hinges on this doctrine of judicial dispensation under the Police Power. Whether it be a regulation of rates and prices, of hours of labor, of height of buildings, of municipal distribution of charity, of flooding a cranberry bog, or of prescribing to sleeping-car porters duties regarding the lowering of upper berths,–in questions great and small, the courts vote upon the reasonableness of the use of the Police Power, like any old-fashioned town meeting. There is no rule of law involved. There is only opinion or prejudice, or pecuniary interest. The judges admit frankly that this is so. They avow that they try to weigh public opinion, as well as they can, and then vote. In 1911 Mr. Justice Holmes first explained that the Police Power extended to all great public needs, and then went on to observe that this Police Power, or extraordinary prerogative, might be put forth by legislatures "in aid of what is sanctioned by usage, or held by … preponderant opinion to be … necessary to the public welfare."29

A representative chamber reaches its conclusions touching "preponderant opinion" by a simple process, but the influences which sway courts are obscurer,–often, probably, beyond the sphere of the consciousness of the judges themselves. Nor is this the worst; for, as I have already explained, the very constitution of a court, if it be a court calculated to do its legitimate work upon a lofty level, precludes it from keeping pace with the movement in science and the arts. Necessarily it lags some years behind. And this tendency, which is a benefit in the dispensation of justice as between private litigants, becomes a menace when courts are involved in politics. A long line of sinister precedents crowd unbidden upon the mind. The Court of King's Bench, when it held Hampden to be liable for the Ship Money, draped the scaffold for Charles I. The Parliament of Paris, when it denounced Turgot's edict touching the corvée, threw wide the gate by which the aristocracy of France passed to the guillotine. The ruling of the Superior Court of the Province of Massachusetts Bay, in the case of the Writs of Assistance, presaged the American Revolution; and the Dred Scott decision was the prelude to the Civil War.

The capital essential of justice is that, under like conditions, all should fare alike. The magistrate should be no respecter of persons. The vice of our system of judicial dispensation is that it discriminates among suitors in proportion to their power of resistance. This is so because, under adequate pressure, our courts yield along the path of least resistance. I should not suppose that any man could calmly turn over the pages of the recent volumes of the reports of the Supreme Court of the United States and not rise from the perusal convinced that the rich and the poor, the strong and the weak, do not receive a common measure of justice before that judgment seat. Disregarding the discrimination which is always apparent against those who are unpopular, or who suffer under special opprobrium, as do liquor dealers, owners of lotteries, and the like,30 I will take, nearly at random, a couple of examples of rate regulation, where tenderness has been shown property in something approaching to a mathematical ratio to the amount involved.

In April, 1894, a record was produced before the Supreme Court which showed that the State of North Dakota had in 1891 established rates for elevating and storing grain, which rates the defendant, named Brass, who owned a small elevator, alleged to be, to him in particular, utterly ruinous, and to be in general unreasonable. He averred that he used his elevator for the storage of his own grain, that it cost about $3000, that he had no monopoly, as there were many hundred such elevators in the state, and, as land fit for the purpose of building elevators was plenty and cheap, that any man could build an elevator in the town in which he lived, as well as he; that the rates he charged were reasonable, and that, were he compelled to receive grain generally at the rates fixed by the statute, he could not store his own grain. All these facts were admitted by demurrer, and Brass contended that if any man's property were ever to be held to be appropriated by the public without compensation, and under no form of law at all save a predatory statute, it should be his; but the Supreme Court voted the Dakota statute to be a reasonable exercise of the Police Power,31 and dismissed Brass to his fate.

The converse case is a very famous one known as Smyth v. Ames,32 decided four years later, in 1898. In that case it appeared that the State of Nebraska had, in 1893, reduced freight rates within the state about twenty-nine per cent, in order to bring them into some sort of relation to the rates charged in the adjoining State of Iowa, which were calculated to be forty per cent lower than the Nebraska rates. Several of the most opulent and powerful corporations of the Union were affected by this law, among others the exceedingly prosperous and influential Chicago, Burlington & Quincy Railway. No one pretended that, were the law to be enforced, the total revenues of the Burlington would be seriously impaired, nor was it even clear that, were the estimate of reduction, revenue, and cost confined altogether to the commerce carried on within the limits of the State of Nebraska, leaving interstate commerce out of consideration, a loss would be suffered during the following year. Trade might increase with cheaper rates, or economies might be made by the company, or both causes and many others of increased earnings might combine. Corporation counsel, however, argued that, were the principle of the statute admitted, and should all the states through which the line passed do the like, ultimately a point might be reached at which the railway would be unable to maintain, even approximately, its dividend of eight per cent, and that the creation of such a possibility was conceding the power of confiscation, and, therefore, an unreasonable exercise of the Police Power, by the State of Nebraska. With this argument the Supreme Court concurred. They held the Nebraska statute to be unreasonable. Very possibly it may have been unsound legislation, yet it is noteworthy that within three years after this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the rate of $200 for every share of stock of the par value of $100, thus fixing forever, on the community tributary to the road, the burden of paying a revenue on just double the value of all the stock which it had been found necessary to issue to build the highway. Even at this price Mr. Hill is supposed to have made a brilliant bargain.

This brings me to the heart of my theorem. Ever since Hamilton's time, it has been assumed as axiomatic, by conservative Americans, that courts whose function is to expound a written constitution can and do act as a "barrier to the encroachments and oppressions of the representative body."33 I apprehend that courts can perform no such office and that in assuming attributes beyond the limitations of their being they, as history has abundantly proved, not only fail in their object, but shake the foundations of authority, and immolate themselves. Hitherto I have confined myself to adducing historical evidence to prove that American courts have, as a whole, been gifted with so little political sagacity that their interference with legislation, on behalf of particular suitors, has, in the end, been a danger rather than a protection to those suitors, because of the animosity which it has engendered. I shall now go further. For the sake of argument I am willing to admit that the courts, in the exercise of the dispensing prerogative, called the Police Power, have always acted wisely, so much so that every such decree which they have issued may be triumphantly defended upon economic, moral, or social grounds. Yet, assuming this to be true, though I think I have shown it to be untrue, the assumption only strengthens my contention, that our courts have ceased to be true courts, and are converted into legislative chambers, thereby promising shortly to become, if they are not already, a menace to order. I take it to be clear that the function of a legislature is to embody the will of the dominant social force, for the time being, in a political policy explained by statutes, and when that policy has reached a certain stage of development, to cause it to be digested, together with the judicial decisions relevant to it, in a code. This process of correlation is the highest triumph of the jurist, and it was by their easy supremacy in this field of thought, that Roman lawyers chiefly showed their preeminence as compared with modern lawyers. Still, while admitting this superiority, it is probably true that the Romans owed much of their success in codification to the greater permanence of the Roman legislative tenure of office, and, therefore, stability of policy,–phenomena which were both probably effects of a slower social movement among the ancients. The Romans, therefore, had less need than we of a permanent judiciary to counteract the disintegrating tendency of redundant legislation; a fortiori, of course, they had still less to isolate the judiciary from political onslaughts which might cause justice to become a series of exceptions to general principles, rather than a code of unvarying rules.