{"id":4091,"date":"2025-07-29T14:34:05","date_gmt":"2025-07-29T14:34:05","guid":{"rendered":"https:\/\/gchristopherscruggs.com\/?p=4091"},"modified":"2025-07-29T14:34:05","modified_gmt":"2025-07-29T14:34:05","slug":"recovering-our-lost-constitution-no-3-from-agrarian-society-to-economic-power","status":"publish","type":"post","link":"https:\/\/gchristopherscruggs.com\/?p=4091","title":{"rendered":"Recovering Our Lost Constitution No. 3: From Agrarian Society to Economic Power"},"content":{"rendered":"

\"\"<\/a>During the period before the Civil War, the United States was a federal republic, with primary sovereignty residing in the states. The Constitution enshrined a form of joint sovereignty in which the federal government was sovereign as to certain specific matters delegated to it, and the states retained primary sovereignty. Theoretically, this remains true today; however, in reality, the national government is supreme, with broad powers to control the activities of the states and local authorities. Whether this situation should continue unchanged is a matter that requires the most profound thought and consideration.<\/p>\n

The Civil War ultimately settled the issue on the battlefield in favor of a strong central government. The 13th, 14th, and 15th amendments to the Constitution effectively enshrined federal dominance in the Constitution’s fabric. This dominance became increasingly apparent over time, particularly as a result of the Great Depression and the significant expansion of federal authority it entailed. Some of the most challenging situations that the Supreme Court would face occurred during the Great Depression.<\/p>\n

Culturally, the United States entered the Civil War as a primarily agrarian nation, with an emerging industrial base primarily in the northern portion of the country. As a result of the Civil War, the process of industrialization in the United States was accelerated. By the end of the War, the United States had become an industrial power with a unique military experience that would enable it to project its power overseas. The Spanish-American War proved that the United States was a competitor to the imperialistic European powers. By the time the First World War ended, the United States had become the world’s dominant industrial nation.<\/p>\n

This week, we examine the constitutional developments that coincided with the emergence of the United States as a global industrial power. This particular study, though perhaps not immediately relevant to most is relevant, for American society is currently undergoing a change as rapid and as important as the change after the American Civil War, and its implications are just as significant.<\/p>\n

Reconstruction and Its End<\/strong><\/p>\n

After the Civil War, the South had to be reconstructed in a manner that would prevent the recurrence of the conflict. It was occupied by union forces, an occupation that lasted for about a decade. Over time, it became apparent that the Civil War had only changed the legal status of the former slaves, and the social system that had evolved during slavery would change more slowly. The Supreme Court was compelled to address highly complex and socially challenging cases arising from the Reconstruction era. Eventually, the court narrowed the application of the 13th<\/sup> and 14th<\/sup> Amendments to slavery and those social incidents that were addressed by the 14th<\/sup> Amendment. In so doing, it impacted America for many generations, not always positively.<\/p>\n

The Civil Rights Act of 1875 affirmed equality of all citizens in the enjoyment of transportation facilities, in hotels and inns, and in theaters and places of public amusement. Although privately owned, these businesses were akin to public utilities, performing public functions for the benefit of the public and, thus, felt to be subject to public regulation. In five separate cases, a Black person was denied the same accommodations as a White person in violation of the 1875 Act.<\/p>\n

These cases reached the United States Supreme Court in what are known as the \u201cCivil Rights Cases.\u201d [1]<\/a> In the Civil Rights Cases, the court held that the 13th and 14th Amendments did not provide a basis for Congress to pass laws protecting African Americans from discrimination by private individuals. Regarding the 13th Amendment, the court held that it relates only to slavery and involuntary servitude (which it abolishes). Although Congress could pass laws directly enforcing its provisions, such legislative power extends only to the subject of slavery and its incidents. The private denial of equal accommodations in inns, public conveyances, and places of public amusement (which is forbidden by the sections in question) did not impose a badge of slavery or involuntary servitude. The prohibitions of the 14th Amendment, applied only to state laws and acts done under State authority, but do not extend to private activity.\u00a0[2]<\/a><\/p>\n

However, the Court did not completely eviscerate the 14th<\/sup> Amendment, for it did recognize that:<\/p>\n

In this connection, it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress.\u00a0[3]<\/a><\/p>\n

\u00a0In dissent, Justice Harlan made a distinction between the legal institution of slavery and those badges and burdens of disability, which are implicit in the social status of former slaves. He formed the intellectual basis for what would later be an expansion of the 14th<\/sup> Amendment by suggesting that the court had the right to declare unconstitutional laws that might involve the \u201cincidents and badges\u201d of slavery.<\/p>\n

Economic Regulation and the 14th<\/sup> Amendment<\/strong><\/p>\n

As a result of rapid industrialization, after the Civil War, states began passing legislation to protect workers. However, sometimes this \u201cprotection” also aimed to benefit entrenched interests by helping them maintain their economic status. The Supreme Court took two very different approaches to this issue, sometimes \u201cdeferring to state legislatures\u201d and at other times overturning laws seen as unreasonable or that violated a specific Constitutional mandate. Generally, the Court applied the Due Process Clause of the 14th<\/sup> Amendment, deciding cases based on the \u201creasonableness\u201d of restrictions on individual rights to life, liberty, and property.\u00a0[4]<\/a><\/p>\n

Transitioning from evaluating the reasonableness of a restriction to adopting a deferential approach to decision-making, the court ultimately determined that a legislative limitation would be deemed reasonable if there was any rational basis<\/u> for a person to believe it was reasonable. The concept of \u201cjudicial deference\u201d was articulated in a significant law review article published in the Harvard Law Review in 1893 by the prominent legal scholar James Bradley Thayer, a close friend of Oliver Wendell Holmes.[5]<\/a><\/p>\n

This led to one of the most controversial Supreme Court decisions, Plessy v. Ferguson<\/em>, where the court ruled that a restriction preventing blacks from sitting in areas of a train reserved for whites was constitutional. Plessy upheld the constitutionality of racial segregation under what is now known as the “separate but equal” doctrine.\u00a0The Court ruled that state laws requiring separate facilities for black and white citizens did not violate the Equal Protection Clause of the Fourteenth Amendment, as long as the facilities were of equal quality and equal in every respect.[6]<\/a> In making this decision, the Court was \u201cdeferring\u201d to the legislative judgment of the citizens of Louisiana (and the entire South, as well as much of the rest of the country) in a way that followed majority will but denied the rights of individual black citizens. Today, nearly all scholars view Plessy<\/em> as wrongly decided. Moreover, the tact taken in Plessy<\/em> created additional problems, as will be seen below.<\/p>\n

Economic Regulation and the 14th<\/sup> Amendment<\/strong><\/p>\n

Over time, the theory of \u201cjudicial deference\u201d enunciated by Thayer was enshrined in several cases in which what had begun restricting the 14th<\/sup> Amendment in Southern Civil Rights cases bore fruit in the area of economic regulation. In thinking about this issue, it is essential to remember the wording of the 14th<\/sup> Amendment:<\/p>\n

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws<\/u>. [7]<\/a><\/p>\n

Without question, the 14th<\/sup> Amendment was intended to enshrine the notion that all citizens, regardless of race, color, or socio-economic class, had the right to \u201clife, liberty, and property,\u201d which rights were inalienable. The phrase \u201cwithout due process of law\u201d almost certainly refers to the fact that people can be executed, imprisoned, and their property taken under certain circumstances if due process of law is followed. This happens all the time, for example when a public body forces a sale of property. This clearly implies that economic freedoms, as well as other freedoms do not involve a total lack of restriction and regulation.<\/p>\n

As industrialization sped up after the Civil War, states increasingly passed economic laws, some of which were aimed or at least claimed to improve conditions for the now urban working classes. The decision in Lochner v. New York highlights the Court’s involvement in\u00a0this\u00a0<\/u>area<\/u>.\u00a0[8]<\/a><\/p>\n

As background, New York state\u2019s baking industry came under scrutiny when the New York Press<\/em> published a muckraking report titled \u201cBread and Filth Cooked Together\u201d in September 1894. The article, which detailed \u201cvermin and dirt abound\u201d and \u201ca grind that makes ambition for personal cleanliness impossible,\u201d drew the attention of reformers, organized labor, and politicians. Unsafe working conditions were not unique to the baking industry; they were also prevalent in other industries. Still, the momentum generated by this expos\u00e9 led the New York State Legislature to pass the Bakeshop Act in the spring of 1895. The act implemented standards for sanitation and working conditions in bakeries. It also limited working hours for bakers to a maximum of 10 hours per day or 60 hours per week.\u00a0[9]<\/a><\/p>\n

As with many such pieces of legislation, the virtue of the New York legislation is somewhat questioned by the fact that it. In the case of Lochner v. New York<\/em>, the petitioner, Joseph Lochner, was the owner of a small bakery in New York. In April 1901, Lochner was arrested and charged with violating the Bakeshop Act. One of his employees, Aman Schmitter, worked more than 60 hours in one week. The state trial court fined him $50 and sentenced him to 50 days in jail. Lochner appealed. Both state appeals courts upheld the law, citing a need to protect worker safety and public health. Lochner appealed his case to the Supreme Court.[10]<\/a><\/p>\n

The majority opinion of the Court held that the health risks associated with the baking industry do not justify the state legislature\u2019s interference with the right to work or Lochner\u2019s liberty of contract. In this light, the Bakeshop Act was an improper exercise of the state\u2019s power to legislate for the health, safety, and welfare of the public and deprived workers of their contractual rights. A minority dissent argued that the state legislature\u2019s determination that the conditions in bakeries posed legitimate public health concerns was reasonable. Justice Oliver Wendell Holmes filed a separate dissenting opinion, criticizing the majority for using the Fourteenth Amendment\u2019s Due Process Clause to protect a right not explicitly stated in the Constitution.[11]<\/a><\/p>\n

Lochner <\/em>was a landmark case in what is known as \u201cSubstantive Due Process.\u201d The opinion in Lochner<\/em> did not address a failure to follow proper procedures in restricting the contractual rights of individuals, but rather a substantive right that the Court found in the Constitution. Although the court has long walked away from the implications of Lochner in the area of economic regulation, it has continued to apply the doctrine in other areas. This has resulted in the development of a highly complex body of law, which will be addressed in a later blog. It is enough for now to note that, during the Great Depression and thereafter, the Court retreated from its decision in Lochner.<\/em><\/p>\n

Conclusion<\/strong><\/p>\n

If you are like me, it is hard to distinguish between Due Process and Equal Protection. Simply put, Due Process safeguards individuals from government actions that unfairly interfere with their rights or stop them from exercising those rights without proper procedures. In addition, some fundamental rights cannot be limited no matter the level of due process\u2014this is known as \u201cSubstantive Due Process.” Equal Protection ensures that people in similar situations are treated equally. It requires the government to apply laws fairly and not discriminate without a good reason. Essentially, individuals in similar circumstances should receive comparable treatment under the law. Initially, the goal was to ensure that former slaves received the same legal protections as those born free.<\/p>\n

If the government deprives a fundamental right by treating similarly situated people differently, then both an equal protection claim and a due process claim may be raised. Essentially, a Substantive Due Process Claim can also serve as an Equal Protection Claim if a fundamental right is involved.<\/p>\n

Even today, the nation continues to grapple with the legacy of Lochner<\/em> and the Court\u2019s development substantive due process under the 14th<\/sup> Amendment. During mid to late the 20th century, the Court established a doctrine of non-economic due process, striking down government actions that unjustly infringe on what was viewed by the Court as fundamental rights. Recently, however, the Court has avoided invalidating government actions based on substantive due process. That story is still evolving.<\/p>\n

Copyright 2025, G. Christopher Scruggs, All Rights Reserved<\/strong><\/em><\/p>\n

[1]<\/a> Civil Rights Cases<\/em> 109 US 3 (1883.<\/p>\n

[2]<\/a> Id<\/u>.<\/p>\n

[3]<\/a> Id,<\/u> at 108.<\/p>\n

[4]<\/a> Randy E. Barnett, Our Republican Constitution<\/em>: Securing the Liberty and Sovereignty of We the People <\/em>(New York, NY: Broadside Books (Harper Collins) (2016), 125<\/p>\n

[5]<\/a> James Bradley Thayer, \u201cThe Origin and Scope of American Constitutional\u201d Law 25 Harvard Law Review 7 (1893).<\/p>\n

[6]<\/strong><\/a> Plessy v. Ferguson<\/em>, 163 U.S. 537 (1896). Plessy was not overturned until Brown v. Board of Education of Topek<\/u>a, 347 U.S. 483 (1954).<\/h1>\n

[7]<\/a> Constitution of the United States of America, Amendment XIV (1868).<\/p>\n

[8]<\/a> Lochner vs. New York<\/u> 198 US 45 (1005).<\/p>\n

[9]<\/a> \u201cLochner vs, New York\u201d in Supreme Court Historical Society discussion at https:\/\/civics.supremecourthistory.org\/article\/lochner-v-new-york<\/a>(downloaded July 28, 2025)<\/p>\n

[10]<\/a> Id<\/u>.<\/p>\n

[11]<\/a> Id<\/u>. Despite his sympathy with the legislation, Holmes’s dissent contained mischievous language that would impact the Court\u2019s later history. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality, I think it unnecessary to discuss.\u201d Id =. Holmes was repeating Thayer\u2019s precise language and theory articulated in his earlier article. Worse, the question of justice and truth are vitiated by the language \u201cany reasonable man.\u201d Reasonable men are mistaken and even evil all the time.<\/p>\n","protected":false},"excerpt":{"rendered":"

During the period before the Civil War, the United States was a federal republic, with primary sovereignty residing in the states. The Constitution enshrined a form of joint sovereignty in which the federal government was sovereign as to certain specific matters delegated to it, and the states retained primary sovereignty. Theoretically, this remains true today; … Continue reading Recovering Our Lost Constitution No. 3: From Agrarian Society to Economic Power<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[1],"tags":[],"class_list":["post-4091","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_shortlink":"https:\/\/wp.me\/p4CzBH-13Z","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4091","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4091"}],"version-history":[{"count":1,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4091\/revisions"}],"predecessor-version":[{"id":4093,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4091\/revisions\/4093"}],"wp:attachment":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4091"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4091"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4091"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}