Teddy Roosevelt On Judicially Enforced Rights to Contract

January 5th, 2014

The Bully Pulpit, which I have blogged about before, is every effective in chronicling Roosevelt’s evolution from the laissez faire principles he had as a youth, to a progressive, based on his experiences in the seedy underworld of the late-19th Century New York. One of the more poignant vignettes concerns his views towards a bill that would have prohibited the manufacture of cigars inside crowded tenement houses.

When the Cigar-Makers’ Union introduced a bill to prohibit the manufacture of cigars in tenement houses, Roosevelt presumed from the outset he would vote against it. He had always believed that tenement owners had an absolute right to do as they wished with their own property. As he examined more closely the conditions leading to the bill, however, he began to question his inherited resistance to social legislation.

After inspecting the horrid conditions of these tenement houses, led by labor leader Samuel Gompers, Roosevelt had a change of heart.

After two additional forays into this dark underworld, Roosevelt was “convinced beyond a shadow of doubt” that the manufacture of cigars in tenement houses “was an evil thing from every standpoint, social, industrial and hygienic.” Though the proposed bill was “a dangerous departure from the laissez-faire doctrine in which he thoroughly believed,” he championed its passage and joined a group of supporters urging Governor Grover Cleveland to sign it.

Of course, this law led to litigation, and resulted in the case of In Re Jacobs, 98 N.Y. 98 (NY 1985), which struck down the law.

Once the bill became law in March 1883, the cigar makers straightaway brought suit, arguing their right to hold property, guaranteed by the state constitution, was violated by the new regulations. The case, In re Jacobs, eventually made its way to the New York Court of Appeals, where the justices declared that the law indeed deprived the cigar makers of their “fundamental rights of liberty  .  .  . without due process of law.” Furthermore, the court argued, the legislation did not constitute a legitimate use of the state’s police power to regulate behavior detrimental to the public welfare, for tobacco was in no way “injurious to the public health.” On the contrary, it was “a disinfectant and a prophylactic.”

Here is the main holding of Jacobs.

Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the legislature may in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law. In re Jacobs, 98 N.Y. 98, 110 (1885)

As you may imagine, Roosevelt was not happy with this opinion.

“It was this case,” Roosevelt later said, “which first waked me to  .  .  . the fact that the courts were not necessarily the best judges of what should be done to better social and industrial conditions.” While the justices were well intentioned, they interpreted law solely from the vantage point of the propertied classes. “They knew nothing whatever of tenement house conditions,” he charged, “they knew nothing whatever of the needs, or of the life and labor, of three-fourths of their fellow-citizens in great cities.” In the years that followed, the court’s defense of free enterprise in this case would be repeatedly cited to block governmental regulation of industry. “It was,” Roosevelt observed, “one of the most serious setbacks which the cause of industrial and social progress and reform ever received.”

In “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights,” Victoria Nourse tells the role that then-President Roosevelt played in bringing attention to Lochner v. New York, decided by the Supreme Court in 1905.

This quotation from TR in 1912 seems about right:

“My proposal is that . . . if the court has decided that the Legislature plus the Executive has exceeded the power granted by the people to them under the Constitution, that the people shall themselves have the right to say whether their representatives in the Legislature and the executive office were right, or whether their representatives on the court were right.”133 Theodore Roosevelt (1912)

From Part III of her article:

Enter the second tale of Lochner, a tale in which rights are strong, but not because judges make them so. They are strong because they appear to thwart popular will and thus the politically powerful take them up as a call to arms. Theodore Roosevelt plays the lead in this story, one which is completely absent from traditional lawyerly accounts, yet is essential to creating the story of Lochner we know today.136
Roosevelt harshly criticized cases such as Lochner, Adair, and Coppage, which were small in number but lived an exceedingly large, public life.
For example, before his progressive conversion, future president Wilson declared that the “‘right of freedom of contract’ was the ‘most precious of all “the possessions of a free people,”’ a political slogan signaling that he was against labor unions.142 In the 1912 presidential campaign, when Theodore Roosevelt heard that Wilson had invoked the term “liberty,” he insisted that it was “the laissez-faire doctrine of English political economists three-quarters of a century ago.”143 “Liberty” was a political fighting word, one used by the National Association of Manufacturers to fight “unionism,”144 a rhetorical and political invocation that lasted until the “Liberty League” was created to fight the New Deal.145
It was TR who helped galvanize opposition to Lochner, which he labelled the “New York Bakeshop Case”:
It would take the indomitable Theodore Roosevelt for Lochner to become a legal and public icon. During his presidency, Roosevelt (who was not a lawyer) made clear that he was no friend of the courts.162 Like most progressives, he insisted that the judiciary had been hostile to the regulation of trusts, protecting “property” rights rather than “human” rights (one of the great political slogans of the period).163 This all reached fever pitch, however, when Roosevelt began his political comeback during Taft’s presidency.164Just back from his African safari in 1910, Roosevelt delivered a sensational speech to the Colorado legislature attacking the Supreme Court.165 Roosevelt specifically cited two decisions: one was Lochner, and the other was United States v. E.C. Knight, an antitrust case.166 Roosevelt charged that the courts had created a “neutral zone” in which neither the state (Lochner) nor nation (Knight) could *780 express majority will and “popular rights.”167 The Court had become a refuge, Roosevelt explained, for the very rich men “who wish to act against the interest of the community as a whole.”168
Roosevelt’s critique of Lochner was not that the courts had created a new right to contract, nor that the courts had diverged from original intent, but that the courts had ignored the “welfare of the general public.”169 Echoing Justice Harlan, Roosevelt attacked Lochner using the police power rationale. He claimed that the Court did not know “the facts” of how the baking business was “carried on under unhygienic conditions.”170 The Court had struck down the law, despite the approval of the New York legislature and the New York courts, on the theory of a “liberty to work under unhygienic conditions.”171 It was a decision “nominally against State rights . . . but really against popular rights, against the democratic principle of government by the people under the forms of law.”172Roosevelt later elaborated on his position:
In the New York Bakeshop Case it is our duty to say that it is for the people of a State to decide whether they intend to be true to the school of political economy of the eighteenth-century individualistic philosophers or whether they intend to act on the principles set forth in such books (to mention two among many) as those of Professor Ross on “Social Control” and by Father Ryan on “A Living Wage.”173
I didn’t realize how much the first President Roosevelt resembled the second President Roosevelt, with respect to attacks on the Court.
Roosevelt was unfazed. In the following month, before a crowd of 40,000, Roosevelt defended his right to criticize the Court and opined, “I have not a word to retract.”180 Invoking Lincoln, he reminded the crowd that the great president was “assailed” for his criticism of Dred Scott.181 Critique of the Court was not “merely the right but the duty of citizens” who believed judicial decisions were wrong.182 Judicial decisions, Roosevelt urged, should “be submitted to the intelligent scrutiny and candid criticism of their fellow men.”183 The people, he argued, should be capable of reviewing judicial decisions on “certain constitutional questions” dealing with the public welfare.184 Shocked at such a proposal, the New York Times editorialized that, *782 should the Court try to follow “popular opinion,” it would be like one who tries to follow a single rabbit on a particular trail after letting loose ten rabbits over a field of snow (implying that “public opinion” was in the eye of the beholder).185
The debate continued186 and intensified as Roosevelt began his campaign for president in earnest; by 1912, he formalized his complaints into a proposal that state court judgments should be submitted to the people for review. Today, this is known–somewhat deceptively–as one form of “recall.” What is forgotten is that every step of the way, Roosevelt invoked the “Bakeshop Case.” In response, Lochner’s proponents characterized Roosevelt’s support for popular rights as support for majority tyranny.187 In a 1912 speech at Carnegie Hall in New York,188 Roosevelt responded to this criticism by alluding to Lochner as an example of judicial “tyranny.”189 Expressing his “scant patience” for the view that he supported the tyranny of the majority, Roosevelt countered that a tyranny of the minority stood behind “the present law of master and servant, the sweat-shops, and the whole calendar of social and industrial injustice.”190 If the majority really were tyrannous, Roosevelt claimed, “no written words” were strong enough to stay tyranny.191
All the more fascinating because TR’s opponent, and once former close friend, William Howard Taft, idolized the Supreme Court (where he would go on to serve as Chief Justice):
All of this enraged President Taft, who insisted that the Constitution was *783 the “supreme issue” of the election.192 Taft even told campaign audiences that he was confident that the American people “will never give up the Constitution, and they are not going to be honey-fugled out of it by being told that they are fit to interpret nice questions of constitutional law just as well or better than Judges.”193 Both candidates eventually lost to Woodrow Wilson, but Lochner remained part of Roosevelt’s speeches.194