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Charles Evans Hughes and the Strange Death of Liberal America

  • James A. Henretta
Extract

“Liberalism! Not in all history has a word been so wrenched away from its true meaning and dragged through the gutter of defilement,” the Wilsonian Progressive George Creel protested angrily in a memoir of 1947: “Where it once stood for the dignity of man, … it now stands for the obliteration of individualism at the lands of a ruthless, all-powerful state.” For nearly fifty years, most scholars have given little heed to the rage vented by Creel and other critics of New Deal “liberalism.” Amidst the expansion of the American welfare state, the outlook and ideas of the anti-New Dealers seemed at best naively outdated and at worst positively pernicious. History—in the form of an increasingly massive, paternalist, neo-mercantilist, bureaucratic state—seemed to be firmly on the side of those who advocated the expansion of federal authority over more aspects of American life.

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1. Creel, George, Rebel at Large (New York: G. P. Putnam's Sons, 1947), quoted inGraham, Otis, An Encore for Reform: The Old Progressives and the New Deal (New York: Oxford University Press, 1967), 90.

2. For accounts by political historians, see the essays inThe Rise and Fall of the New Deal Order, 1930–1980, ed. Frazer, Steve and Gerstle, Gary (Princeton: Princeton University Press, 1989); Tomlins, Christopher L., The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (Cambridge: Cambridge University Press, 1985); Milkis, Sidney M., The President and the Parties: The Transformation of the American Party System since the New Deal (New York: Oxford University Press, 1993); andLeuchtenburg, William E., The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995).

3. Nearly all treatments of Hughes's life and political career are dated and most present him in a very favorable light, partly because they rely heavily on papers that Hughes personally selected and deposited in the Library of Congress (hereafter LC). The best studies are the two-volume authorized biography byPusey, Merlo, Charles Evans Hughes (New York: Columbia University Press, 1951)and the interpretative study byPerkins, Dexter, Charles Evans Hughes and American Democratic Statesmanship (Boston: Little Brown, 1956).See alsoWesser, Robert, Charles Evans Hughes: Politics and Reform in New York, 1905–1910 (Ithaca: Cornell University Press, 1967).

4. This interpretation stems from George Dangerfield's brilliant narrative history of prewar liberalism,The Strange Death of Liberal England (New York: H. Smith & R. Haas, 1935).Recent scholarship views the demise of British liberalism as primarily the result of World War I.

5. See Rodgers, Daniel, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Harvard University Press, 1998).

6. Between 1930 and 1960, the proportion of civilian government employees in the American workforce nearly doubled, from 6.3 percent to 11.9 percent. The number of federal government workers increased even more dramatically, from 526,000 to 2.2 million, and the number of non-government workers paid with federal tax dollars rose in an even more impressive fashion. In 1930 there was a single federal worker for every five state and local government employees (526,000 to 2.6 million); in 1940, the ratio had risen to 1 to 3.3 (956,000 to 3.2 million); and by 1950 it was 1 to 2.2 (1.9 to 4.1 million). For discussions of the conception of “Statism” in the Progressive and New Deal eras, see notes 43 and 129 and the accompanying text.

7. Cushman, Barry, “Rethinking the New Deal Court,” Virginia Law Review 80 (1994): 201–61; Cushman, , “A Stream of Legal Consciousness: The Current of Commerce Doctrine from Swift to Jones & Laughlin,” Fordham Law Review 61 (1992): 105–81; andCushman, , Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998).

8. Friedman, Richard, “Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation,” University of Pennsylvania Law Review 142 (1994): 18911984; Friedman, , “Charles Evans Hughes as Chief Justice, 1930–1941” (unpublished D.Phil. diss., Oxford University, 1979).

9. White, G. Edward, The Constitution and the New Deal (Cambridge: Harvard University Press, 2000), 235, 204–5.

10. For the remarks of Taft and Hand, see notes 87 and 89, below.Ackerman, Bruce, We the People: Foundations (Cambridge: Harvard University Press, 1991), chaps. 4–5, andWe the People: Transformations (Cambridge: Harvard University Press, 1998); Sunstein, Cass R., “Lockner's Legacy,” in Law and Liberalism in the 1980s, ed. Blasi, Vincent (New York: Columbia University Press, 1991), 157204; Parrish, Michael E., The Hughes Court: Justices, Rulings, and Legacy (Santa Barbara: ABC-CLIO, Inc., 2002).

11. Letters of 6 and 23 October 1876, quoted inPusey, , Hughes, 1:31, and chaps. 1–4. Although a Methodist in Wales, the elder Hughes served Baptist congregations in the U.S. Oliver Wendell Holmes, Jr., who befriended the younger Hughes during his six years as an associate justice, was struck both by his colleague's intense religiosity and capacity for independent thought, noting that Hughes had “doubts that open vistas through the wall of a nonconformist conscience.” Letter to Sir Frederick Pollock, quoted inFreund, Paul A., “Charles Evans Hughes as Chief Justice,” Harvard Law Review 81 (1967): 38.

12. CEH to his parents, 13 April 1878, Hughes Papers, LC; CEH to his father, 30 April 1882, inPusey, , Hughes, 1:65.

13. See the remarks ofSchurman, Jacob Gould in The Addresses of Charles Evans Hughes, 1906–1916 (New York: G.P. Putnam's Sons, 1916), 34.Professor Thomas Reed Powell of Harvard noted Hughes's “well-nigh titanic” capacity for work, quoted in Friedman, “Charles Evans Hughes,” 161. As Hughes explained in an interview in 1945, at age eighty-three: “I inherited a continuing ambition to excel in good work and do my job as well as it could be done. I couldn't bear the thought of leaving undone anything which could be done.…”Pusey, , Hughes, 1:95.

14. Hobson, Wayne K., “Symbol of the New Profession: Emergence of the Large Law Firm, 1870–1915,” in Gawalt, Gerald W., ed., The New High Priests: Lawyers in Post-Civil War America (Westport, Conn.: Greenwood Press, 1984), 1719.

15. Pusey, , Hughes, 1: chaps. 7–9 and 1:298, 2:664.His income as a partner in Carter's law firm was $13,500; at Cornell, $3,000.

16. Quoted inFriedman, , “Charles Evans Hughes,” 158; see alsoPusey, , Hughes, 1:174.

17. Editor's Note:Governor on the Bench: Charles Evans Hughes as Associate Justice,” Harvard Law Review 89 (1976): 966. John W. Davis, a leading member of the American Bar and the Democratic presidential candidate in 1924, noted that Hughes was “too apt to reach his conclusion and then reason to it, instead of reasoning to it and reaching his conclusion.” Ibid., 966.

18. Frankfurter, quoted inFriedman, , “Charles Evans Hughes,” 137. To JusticeJackson, Robert H., Hughes “was one of the two great personalities of my time. The other was the President [FDR].” Gerhart, Eugene C., America's Advocate: Robert H. Jackson (Indianapolis: Bobbs-Merrill, 1958), 145.Balfour quoted inPusey, , Hughes, 2:614. William R. Castle, Jr., who worked under Hughes at the State Department, wrote in his diary in 1924: “It is inspiring to come into contact with his mind, the most perfect mental machine in the whole world; with his courage, which always dares to do the right thing.” Quoted inPusey, , Hughes, 2:610.

19. CEH to his father, 2 November 1880, and to Charles Evans Hughes, Jr., 28 March 1924, Hughes Papers, LC. Between 1894 and 1904 Hughes argued twenty-five cases before the New York Court of Appeals, none of them dealing directly with large questions of public policy. For Hughes's views on Cleveland, see the comments of his secretary, R. H. Fuller, Hughes Papers, LC, Reel 149, Frame 763. Opposing Hughes's renomination in 1908, Republican party boss (and Speaker of the Assembly) William Barnes, Jr., complained that it would “put the Republican party in this state in the hands of the Mugwumps.” Quoted inMcCormick, Richard L., From Realignment to Reform: Political Change in New York State, 1893–1910 (Ithaca: Cornell University Press, 1981), 234.

20. For Gladstone's influence in the United States, seeKelley, Robert, The Transatlantic Persuasion: The Liberal Democratic Mind in the Age of Gladstone (New York: Knopf, 1969).Unlike Gladstone, whose portrait graced Hughes's home in the 1890s, Hughes was not a free-trader. Before World War I he favored a protective tariff with rates set by “an expert commission” (seeSchurman, , Addresses, 39), and as Secretary of State he did not speak out against high import duties, despite their impact on the ability of Europeans to pay their war debts to the United States. SeePerkins, , Hughes, 115–39, andPusey, , Hughes, 1:208and 2:571–73, 593.

21. Pusey, , Hughes, 1:134; Wesser, , Hughes, 22; for the details of Hughes's appointment, compareMcElwain, Edwin, “The Business of the Supreme Court as Conducted by C. J. Hughes,” Harvard Law Review 63 (1949): 89, withDanelski, David J. and Tulchin, Joseph S., eds., The Autobiographical Notes of Charles Evans Hughes (Cambridge: Harvard University Press, 1973), 108–9 and 119–20.

22. Pusey, , Hughes, 1:136–38; McCormick, , Realignment to Reform, 195–96.Consolidated Gas declared its tax value as $35 million, but calculated its rates on an inflated value of $47 million and, in 1904, paid dividends of $8 million (or 10 percent) on $80 million of stock. In fact, the actual rate of return on capital was between 20 and 30 percent, since Hughes determined that the replacement value of the Gas Company's assets was $27 million.

23. On European municipal socialism, seeRodgers, , Atlantic Crossings, 117–30.Assembly Report quoted inMcCormick, , Realignment to Reform, 157.Municipal ownership of utilities existed in many small American towns. As Rodgers notes (147–59), a well-justified fear of political corruption in large cities, the result of universal suffrage and machine politics, undercut American movements for municipal ownership and urban progressivism.

24. In defining the powers of the commission, Hughes may have noted the commission created in 1829 by Martin Van Buren to regulate member banks of the New York Safety Fund. SeeHenretta, James A., “The Birth of American Liberalism: New York, 1820–1860,” in Republicanism and Liberalism in America and the German States, 1750–1850, ed. Heideking, Jürgen and Henretta, James A. (Cambridge: Cambridge University Press, 2002), 173, andSowers, Don C., The Financial History of the State of New York: From 1783 to 1912 (New York: Columbia University Press, 1914), chap. 4.

25. McCormick, , Realignment to Reform, 32, 149–50, 178, 194–97; Hughes, , “Address to the Attica Chamber of Commerce,” April 1, 1907, inSchurman, , Addresses, 152–54and, below, notes 89–93 and the accompanying discussion;Nelson, William E., The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980 (Chapel Hill: University of North Carolina Press, 2001), 19, 2728; Bergstrom, Randolph E., Courting Danger: Injury and the Law in New York City, 1870–1910 (Ithaca: Cornell University Press, 1992), 81n.

26. Hughes had chosen the legal profession in part because it was “the one most favorable to high ambition.” The insurance probe was the opportunity of a lifetime, and he seized it with both hands. “My dear,” he wrote to his wife from the German Alps, “you don't know what this investigation would mean. It would be the most tremendous job in the United States.” CEH to Antoinette Hughes, 6 May 1905, Hughes Papers, LC; Pusey, Hughes, 1:60, 141–42.

27. Faulkner, Harold U., The Decline of Laissez-Faire (New York: Harper & Row, 1951), 371.

28. McCormick, , Realignment to Reform, 197205, 218 (quote); Pusey, , Hughes, 1:164–68.

29. Gordon, Robert W., “‘The Ideal and the Actual in the Law': Fantasies and Practices of New York City Lawyers, 1870–1910,” in Gawalt, , ed., The New High Priests, 5961.Hughes “Report” quoted inRoe, Mark J., Strong Managers, Weak Owners: The Political Roots of American Corporate Finance (Princeton: Princeton University Press, 1995), 69.See alsoKeller, Morton, The Life Insurance Enterprise, 1885–1910 (Cambridge: Harvard University Press, 1963), 259–64.Perkin, Harold, The Rise of Professional Society: England since 1880 (London: Routledge, 1990), chaps. 1, 4, and 8develop the concept of the professional ideal.

30. Quoted inPusey, , Hughes, 1:173.In the spring of 1906, Roosevelt had tried to recruit Hughes to investigate illegal trade combinations in the coal industry.

31. Wesser, , Hughes, 8691. In 1886, the Union had backed the nearly successful mayoral bid of utopian socialist Henry George.

32. SeeBergstrom, , Courting Danger, 1530(tables 1–12) and 158–66 (tables 22–31) for increases in the number of cases and the size of awards, and, in generalFriedman, Lawrence M. and Ladinsky, Jack, “Social Change and the Law of Industrial Accidents,” Columbia Law Review 67 (1967): 5082.

33. Roosevelt to Philander Knox, 10 November 1904, quoted inSklar, Martin J., The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, the Law, and Politics (Cambridge: Cambridge University Press, 1988), 357; McCormick, , Realignment to Reform, 152, 178–79.

34. Yellowitz, Irwin, Labor and the Progressive Movement in New York State, 1897–1916 (Ithaca: Cornell University Press, 1965), 213; McCormick, , Realignment to Reform, 206–8, 220–27; Wesser, , Hughes, 8899.

35. Perkin, , Professional Society, 52(quote). Dangerfield, Strange Death, points to the prewar decline of British liberalism, whileClarke, Peter F., Lancashire and the New Liberalism (Cambridge: Cambridge University Press, 1971)andClarke, , “The Progressive Movement in England,” Transactions of the Royal Historical Society 24 (1974): 159–81, argues for its vitality. See alsoMorgan, Kenneth O., “The Future at Work: Anglo-American Progressivism, 1870–1917,” in Contrast and Connection: Bicentennial Essays in Anglo-American History, ed. Allen, H. C. and Thompson, Roger (Columbus: Ohio State University Press, 1976), 245–71.On the rise and fall of the Lib-Lab alliance, seeLuebbert, Gregory M., Liberalism, Fascism, or Social Democracy: Social Classes and the Political Origins of Regimes in Interwar Europe (New York: Oxford University Press, 1991), 1527.

36. Churchill quoted inMorgan, Kenneth, The Age of Lloyd George (New York: Barnes and Noble, 1971), 145, see also 43–47;Churchill, Winston Spencer, Liberalism and the Social Problem (London: Hodder and Stoughton, 1909), 82 and 240–49.The legislation proposed by New Liberals was strongly contested and sometimes defeated; in 1908 the Liberal-dominated Parliament rejected a “Right to Work” plan for public employment during times of depression. SeeEmy, H. V., Liberals, Radical and Social Politics, 1892–1914 (Cambridge: Cambridge University Press, 1973), 171–72; Bernstein, George L., Liberalism and Liberal Politics in Edwardian England (Boston: Allen & Unwin, 1986), 200.

37. Buenker, John D., Urban Liberalism and Social Reform (New York: Scribner, 1973), 26.For Hughes's definition of the governorship, seeSchurman, , Addresses, 7980; for his appointment and veto activities, seePusey, , Hughes, 1:197andWesser, , Hughes, 121–23, 179–80, and 254.The best general discussion of the links among parties, state finance, and corporations isYearley, Clifton K., The Money Machines: The Breakdown and Reform of Governmental and Party Finance in the North, 1860–1920 (Albany: SUNY-Press, 1970).

38. SeeSchurman, , Addresses, 61; McCormick, , Realignment to Reform, 215–16.James Wadsworth, Jr., the new speaker of the assembly, also took steps to curtail corrupt ties between the railroads and the legislators. SeeWesser, , Hughes, 150–51 and 276–79.

39. Roosevelt quoted inMcCormick, , Realignment to Reform, 228.The upstate industrialist reformer, Thomas Mott Osborne, a Democrat, had a different perspective, declaring that Hughes represented “the fight against boss-rule better than anyone … in our time.” Quoted inWesser, Robert F., Response to Progressivism: The Democratic Party and New York Politics, 1902–1918 (New York: New York University Press, 1986), 34.Reporter quoted inMcCormick, , Realignment to Reform, 230.

40. SeeWesser, , Hughes, chap. 11andMcCormick, , Realignment to Reform, 244–47.For details of the primary plan, seeDanelski, and Tulchin, , Autobiographical Notes, 152.Hughes had been an obvious presidential candidate in 1908, but, in what historian Arthur Link calls “his one great mistake,” Roosevelt picked William Howard Taft as his successor, in part because of Hughes's unwillingness to compromise with Republican party bosses (Link, Arthur, Woodrow Wilson and the Progressive Era [New York: Harper, 1954], 3). Hughes's disregard of the party nearly cost him the election; in 1908, Taft carried New York by 203,000 votes but Hughes won reelection by only 69,000 votes. SeePusey, , Hughes, 1:233–39andWesser, , Hughes, chap. 9.

41. On the Moreland Act, seeWesser, , Hughes, 141–42andMissall, J. Ellesworth, The Moreland Act: Executive Inquiry in the State of New York (New York: King's Crown Press, 1946).Also, Elihu Root to CEH, 1 May 1907, Hughes Papers, LC.

42. Quoted inDearstyne, Bruce W., “Regulation in the Progressive Era: The New York Public Service Commission,” New York History 58 (1977): 336.For opposition to “government by commission” by Robert Wagner and other pro-worker and pro-immigrant “urban liberals,” seeWesser, , Hughes, 157 ff.; and by national Democrats, seeJames, Scott C., “Building a Democratic Majority: The Progressive Party Vote and the Federal Trade Commission,” Studies in American Political Development 9 (1995): 346–54.Hughes quoted inMcCormick, , Realignment to Reform, 237.

43. Nation quoted inHendel, Samuel, Charles Evans Hughes and the Supreme Court (New York: King's Crown Press, 1951), 15.

44. New York State,Report of the State Reorganization Commission (Albany: State Printing Office, 1926).For Hughes's thinking on the executive budget, seeDanelski, and Tulchin, , Autobiographical Notes, 139.See alsoMcCormick, , Realignment to Reform, 230–31; Pusey, , Hughes, 1:259–66; andYearley, , Money Machines, 270–75.Hughes's interest in administrative efficiency formed an important theme throughout his public life. As Secretary of State, Hughes was largely responsible for the Rogers Act of 1924, which reorganized the Foreign Service. SeePerkins, , Hughes, 96; Pusey, , Hughes, 2:624.

45. Kelley, TransAtlantic Persuasion, passim.

46. Flowers quoted inMcCormick, , Realignment to Reform, 57.Buenker, , Urban Liberalism and Social Reform, chap. 1; Yellowitz, , Labor and the Progressive Movement, 166, 180–82.For other instances of Tammany's devotion to “honest graft” and party interests at the expense of the poorer citizens and the unions, seeLui, Adonica Y., “The Machine and Social Policies: Tammany Hall and the Politics of Public Outdoor Relief, New York City, 1874–1898,” Studies in American Political Development 9 (1995): 386403.

47. Hughes quoted inWesser, , Hughes, 9293; for his defense of property rights, see the New York City and Youngstown speeches of 1908 inSchurman, , Addresses, 86107, 328.Mary Kingsbury Simichovitch quoted inYellowitz, , Labor and the Progressive Movement, 95; but her fellow settlement worker Louis Pink complained: “Many of those who are most active in housing reform” support “vested property rights [and] … are bitterly opposed to city built tenements.” Ibid., 97.

48. Hughes acted upon receiving the report of his special Commission on the “Condition, Welfare, and Industrial Opportunities of Aliens.” SeeYellowitz, , Labor and the Progressive Movement, 4349; Wesser, , Hughes, 309–25.

49. Ely quoted inKloppenberg, James, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford University Press, 1986), 286.As this quotation suggests, Ely was more a critic of laissez-faire than a socialist ideologue and had little faith in political democracy. In 1882, he praised the restrictions on municipal voting in Berlin and criticized the results of universal suffrage in New York City. Two decades later, he turned away from municipal socialism because of fears of political corruption and administrative incompetence. SeeRodgers, , Atlantic Crossings, 9899, 137, 155.

50. Cohen, Nancy, The Reconstruction of American Liberalism, 1865–1914 (Chapel Hill: University of North Carolina Press, 2002), 5and passim, argues that Mugwump reformers and the first generation of social science reformers, such as Ely, Commons, John Bates Clark, Simon Patten, and Edwin R. A. Seligman, “invented a new liberalism that posited an active role for the state in society and economy even as it justified constraints on democracy and the ascendancy of corporate capitalism.”

51. Quotations fromYellowitz, , Labor and the Progressive Movement, 5657, 133, and 143.SeeEmy, , Social Politics, 264, for British union opposition to compulsory arbitration.

52. The battle over the legislation in New York is recounted inYellowitz, , Labor and the Progressive Era, 108–18, andWesser, , Hughes, 317–20.Rodgers, , Atlantic Crossings, 247–61, provides a general, pan-Atlantic analysis. The Court struck down the act inIves v. So. Buffalo Ry. Co., 201 N.Y.271 (1911). SeeCorwin, Edward S., “Social Insurance and Constitutional Limitation,” Yale Law Journal 26 (1917), 431–43.

53. Steidle, Barbara C., “Reasonable Reform: The Attitude of Bar and Bench Toward Liability Law and Workmen's Compensation,” in Building the Organizational Society: Essays on Associational Activities in Modern America, ed. Israel, Jerry (New York: The Free Press, 1972), 3142; Rodgers, , Atlantic Crossings, 247–51.See also,Thomas, William, Lawyering for the Railroad: Business, Law, and Power in the New South (Baton Rouge: Louisiana State University Press, 1999).

54. Hughes's rethinking of labor issues was apparent as early as 1908, when he was talked about as a presidential candidate. The quotation comes from his “Address to the Republican Club of New York City” (January 1908),Schurman, , Addresses, 86107.In 1916, Hughes supported women's suffrage for similar circumstantial reasons; he thought that opposition would be futile and create unnecessary political strife.

55. Currie, David P., “The Constitution in the Supreme Court: 1910–1921,” Duke Law Journal (1985): 1111–62.

56. Cooley, 53 U.S. (12 How.) 299 (1851); Weldon, 91 U.S.275 (1875); Editor's Note, “Charles Evans Hughes,” 971–73, 979–80;U.S. v. E. C. Knight, 156 U.S.1 (1895); Atlantic Coast Line R.R. v. Georgia, 234 U.S.280 (1914); Currie, , “Constitution in the Court,” 1139n.

57. Minnesota Rate Cases, 230 U.S.352, at 416–17 (1913).

58. Houston, East and West Texas Railway v. U.S., 234 U.S.342 (1914); Editor's Note, “Charles Evans Hughes,” 985. Currie, “Constitution in the Court,” 1118–21, suggests that Hughes limited the reach of the decision in an effort to meet the objections of two dissenting justices; Hughes noted that some senators opposed his appointment as chief justice in 1930 because they felt that Shreveport “unduly interfered with the authority of the States.” SeeDanelski, and Tulchin, , Autobiographical Notes, 295.

59. Sklar, , American Capitalism, 86178, explores the divisions in the Court over the Sherman Act and argues that the triumph of White's faction in the “rule of reason” decisions of Standard Oil and American Tobacco Company cases was not a victory of laissez-faire principles but rather the revival of common law practices that permitted price fixing by private companies and (now) public agencies. For Hughes's acceptance of White's position, see his opinion inDr. Miles Medical Co. v. Park & Sons Co., 220 U.S.373, at 406–7 (1911).See alsoJames, , “Building a Democratic Majority,” 338–42.During his years as chief justice, Hughes hung a portrait of White (and of John Stuart Mill) in his home office. SeePusey, , Hughes, 2:667.

60. Southern Pacific Company v. Campbell, 230 U.S.537 (1913), emphasis added. InNew York Electric Lines Company v. Empire City Subway Company, 235 U.S.179 (1914)Hughes upheld the power of the state to revoke a franchise for non-performance; previously, misuse of a grant had been the only ground for revocation. See Hendel, Hughes, 42–45 and Editor's Note, “Charles Evans Hughes,” 990. In his lectures on the Court, Hughes cited Charles River Bridge in observing that “Charter grants are also strictly construed against the grantees. …” (The Supreme Court of the United States: Its Foundation, Methods and Achievements: An Interpretation [New York: Columbia University Press, 1928], 202).

61. Wilson v. U.S., 221 U.S.361 (1911); see alsoDreier v. U.S., 221 U.S.394 (1911)and Editor's Note, “Charles Evans Hughes,” 985–86. On McKenna's dissent,Allen, Arthur M., “The Opinions of Mr. Justice Hughes,” Columbia Law Review 16 (1916): 565–84.

62. Green, T. H., Lectures on the Principles of Political Obligation, ed. Harris, Paul and Morrow, John (Cambridge: Cambridge University Press, 1986), 205, 209. For Emile Durkheim's somewhat similar search for a collectivist definition of liberal society, seeBellamy, Richard, Liberalism and Modern Society: A Historical Argument (University Park: Pennsylvania State University Press, 1992), 74104. Gladstone quoted inKelley, , Transatlantic Persuasion, 216; for Churchill, see his Liberalism and the Social Problem, 84, 24, 266.

63. Mechanical Jurisprudence,” Columbia Law Review 8 (1908) 108–9; Liberty of Contract,” Yale Law Journal 18 (1909): 454.

64. Do We Need a Philosophy of Law?Columbia Law Review 5 (1905): 344, quoted inHull, N. E. H., Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chicago Press, 1997), 58.“I believe you have set me in the path the world is moving in,” Pound told Ross in 1906. SeeWigdor, David, Roscoe Pound: Philosopher of the Law (Westport, Conn.: Greenwood Press, 1974), 112.For Pound's fully developed view, seeThe Scope and Purpose of Sociological Jurisprudence,” Harvard Law Review 24 (1911): 591619, and 25 (1912): 140–68, 489–516.

65. Ross, , Sin and Society (Boston: Houghton, Mifflin and Company, 1907), 90, quoted inWigdor, , Pound, 113.Ely quoted inHorwitz, Morton, The Transformation of American Law, 1870–1960 (New York: Oxford University Press, 1992), 166, who notes that Ely dedicatedStudies in the Evolution of Industrial Society (New York: Macmillan, 1903)to Justice Holmes.

66. Chicago, Burlington & Quincy Railroad Company v. McGuire, 219 U.S. 549 at 571 and 566 (1911). Hughes also used the concept of “public interest” to prevent a patent medicine manufacturer from specifying, by contract, the price that retailers might charge for its goods (Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S.373, 31 Sup. Ct. 376 [1911]). In dissent, Holmes took the laissez-faire position that the market should determine prices, unless there was a clear case for interference. SeeAllen, , “Opinions of Hughes,” 568–69.

67. Miller v. Wilson, 236 U.S.373 (1915); Philadelphia, Baltimore & Western Railroad Co. v. Schubert, 224 U.S.603 (1912).

68. Coppage v. Kansas, 236 U.S.1.Holmes wrote a separate dissent, which argued that the state had a right “to establish the equality of position between the parties in which liberty of contract begins.” Coppage was an atypical decision; while Hughes was an associate justice, the Court rejected due process claims in nearly two hundred cases and sustained only a dozen or so of such allegations. SeeCurrie, , “Constitution in the Court,” 1130n.Hughes, , Supreme Court, 207–40, cites many cases in which judges used the same principles to justify contradictory decisions but never explicitly criticizes the Court for rendering inconsistent or ideologically driven decisions.

69. For judicial efforts before 1910 to adopt a community-oriented definition of private contracts, seeOlken, Samuel R., “Charles Evans Hughes and the Blaisdell Decision: A Historical Study of Contract Clause Jurisprudence,” Oregon Law Review 72 (1993): 513602.My discussion of Hughes's “socialization” of market contracts follows that in Friedman, “Charles Evans Hughes.”

70. Wilson quoted inHofstadter, Richard, The Age of Reform: From Bryan to F. D. R. (New York: Knopf, 1955), 223; Link, , Wilson and the Progressive Era, 21, 58.Dawley, Alan, Struggles for Justice: Social Responsibility and the Liberal State (Cambridge: Harvard University Press, 1991), 147–55, 170, calls this system of public-private regulation a “para-state.”

71. Kloppenberg, , Uncertain Victory, 355.From the Civil War to 1914, the federal government had an extraordinarily regressive tax system; most of its revenue came from excise taxes (primarily on alcohol and tobacco) and from tariffs (58 percent in 1887, for example). This Republican tax regime survived politically because it protected American workers and allocated much of the revenue in a progressive fashion through pensions to Union Army veterans and their families. SeeCampbell, Ballard C., The Growth of American Government: Governance from the Cleveland Era to the Present (Bloomington: University of Indiana Press, 1995), 17, andBrownlee, W. Elliot, “Tax Regimes, National Crisis, and State-building in America,” in Funding the Modern American State, 1941–1995: The Rise and Fall of the Era of Easy Finance, ed. Brownlee, W. Elliot (Cambridge: Cambridge University Press, 1996), 4769. Stanley, Robert, Dimensions of Law in the Service of Order: Origins of the Federal Income Tax, 1861–1913 (New York: Oxford University Press, 1993)argues that the income tax was primarily symbolic, used by politicians to deflate class tensions, but Brownlee provides evidence of a Democratic “soak the rich” tax policy after 1914.

72. James, “Building a Democratic Majority,” provides an extensive and convincing interpretation of Wilson's embrace of the FTC.

73. Brandeis was the architect of the famous brief in Mueller v. Oregon, 208 U.S. 414 (1908), which used sociological evidence to defend an Oregon law limiting working hours for women.

74. Wilson, , “The Ideals of Public Life” (1907), quoted inJames, , “Building a Democratic Majority,” 331.In general, seeLovell, S. D., The Presidential Election of 1916 (Carbondale: Southern Illinois University Press, 1980).

75. Hughes, quoted inPusey, , Hughes, 1:253and chap. 32; World quoted inLink, , Woodrow Wilson, 238, and 247–51; Lovell, , Election of 1916, 8088, 106–7, 123–24.Edward S. Corwin, who favored most progressive measures, including workers’ compensation, argued at the time that the Adamson Act was unconstitutional because it benefited a restricted group of workers and not the “public welfare.” SeeCorwin, , “Social Insurance,” 5758. For Hughes's opposition to the Sixteenth Amendment, see below, at note 109.

76. Nonetheless, Wilson was not a committed social reformer. When Joseph Tumulty argued in 1918 that “the real antidote for Bolshevism is social reconstruction” and urged the president to propose a Lloyd George-type program of social reform: old age pensions, health insurance, and federal wage and hours’ legislation, Wilson ignored his advice. SeeRodgers, , Atlantic Crossings, 301.

77. However, as a private counsel for bond houses several years later, Hughes supported the constitutionality of the Federal Farm Loan Act of 1916 and continued to support that position during his chief justiceship. See below, at note 134.

78. Rodgers, , Atlantic Crossings, 128.Between 1890 and 1905 spending by local governments in Britain increased from 38 percent to 50 percent of total government expenditures.Cronin, James E., The Politics of State Expansion: War, State, and Society in Twentieth-Century Britain (New York: Routledge, 1991), 43, 5157.

79. Dangerfield, , Strange Death, 218.As the American intellectual Herbert Croly put it, reform liberalism was essentially “a species of higher conservatism.” Quoted inGraham, , Encore for Reform, 174; Wilson, quoted inDawley, , Struggles for Justice, 218.

80. SeeCronin, , State Expansion, 4772; Rodgers, , Atlantic Crossings, 290301.

81. Masterman, The New Liberalism, quoted inMorgan, , Age of Lloyd George, 202; David, Edward, “The New Liberalism of C. F. G. Masterman,” in Essays in Anti-Labour History, ed. Brown, Kenneth D. (Hamden, Conn.: Archon Books, 1974), 1741; Michael Bentley, “The Liberal Response to Socialism, 1918-1929,” in ibid., 42–72; andClarke, , “Progressive Movement,” 178.In general, seeFreeden, Michael, Liberalism Divided: A Study in British Political Thought, 1914–1939 (Oxford: Oxford University Press, 1986) andLuebbert, , Liberalism, Fascism, or Social Democracy, chap. 6, esp. 191210.

82. 247 U. S. 251 (1918) and 261 U. S. 525 (1923).Dawley, , Struggles for Justice, 235–43, 282–84, 295–325.Robert Gordon notes the outright opposition to progressivism of some leading American lawyers during the 1920s and the “withdrawal” from “issues of public concern” of many others. “New York City Lawyers,” 68–74.

83. Hughes, , “Speech to the New York State Bar Association” (1916), in Schurman, , Addresses, 335; Brownlee, , “Tax Regimes,” 6469, notes that these taxes paid for 37 percent of the cost of the war.

84. Hughes, , Autobiographical Notes, 195 (Harvard Speech, 1920); The Shrine of the Common Law” (Speech at Westminster Hall, London 1924), inHughes, Charles E., The Pathway of Peace: Representative Addresses Delivered During His Term as Secretary of State (1921–1925) (New York: Harper & Brothers, 1925), 208; for his faith in the judiciary, seePerkins, , Hughes, 49.

85. Leff, Mark H., The Limits of Symbolic Reform: The New Deal and Taxation, 1933–1939 (Cambridge: Cambridge University Press, 1984), table 1. Between 1926 and 1930, about one-third of federal revenues came from regressive tariffs and excise taxes. In 1935, when federal revenue levels were similar, regressive levies accounted for 59 percent (tariffs: 9 percent; excise taxes: 37 percent; and agricultural processing: 14 percent) of the total, while progressive taxes (on corporations, incomes of the wealthy, and estates) accounted for only 36 percent. However, Mellon's tax policy did not dramatically redistribute the nation's highly concentrated wealth because federal revenues amounted to only 5 percent of the Gross Domestic Product.

86. Believing Hughes to be more conservative than Hoover, in 1928 Thomas W. Lamont of J. P. Morgan and other conservatives attempted to draft him as the Republican candidate; citing his age, Hughes declined. SeePusey, , Hughes, 2:628.

87. Associate Justices Willis Van Devanter and Pierce Butler traveled to New York to urge Hughes to indicate his interest in the position. For a comprehensive and balanced account of Hughes's appointment, seeGunther, Gerald, Learned Hand: The Man and the Judge (Cambridge: Harvard University Press, 1994), chap. 9; for Cotton's judgment, see ibid., 446.

88. After dining with Hughes in the 1930s, the formidable Washington hostess Agnes Meyer noted in her diary “What a rigid creature he is. His faith in the power of reason is boundless. He never suspects that there are all sorts of majestic beauties that cannot be captured by a syllogism.” Quoted in Friedman, “Charles Evans Hughes,” 38. Hughes spoke at the Amherst graduation of his grandson, the future historianHughes, H. Stuart, Pusey, , Hughes, 2:762. Hughes was so eager to become chief justice that he sacrificed the public career of his son Charles, who, to avert a conflict of interest, had to resign his position as Solicitor General of the United States.

89. White, , Constitution and New Deal, 106, 267–71, 295–97, and elsewhere seeks to minimize the ideological and doctrinal differences on the Hughes court but his analysis is not convincing. While Taft was labeling the liberals as “the Bolsheviki,” Judge Learned Hand called the four conservative justices the “mastiffs” and the “Battalion of Death.” See Felix Frankfurter to Harlan Fiske Stone, 2 June 1931, Frankfurter Papers, Reel 64, and 14 February 1936, Box 13, Stone Papers, LC. As early as 1930, Oliver McKee, Jr., described Hughes as one of four “liberals” on the Court along with four “conservatives.” “A Liberal Supreme Court,” The Outlook, 171–72. In April 1930, McReynolds upbraided Stone for the number of his dissents, eliciting a sharp reply from Stone. Stone Papers, Box 76, LC.

90. Using different categories Michael E. Parrish offers a similar interpretation. SeeThe Hughes Court, the Great Depression, and the Historians,” The Historian 4 (1978): 286308, and The Hughes Court, passim.

91. Stone to Frankfurter, 15 February 1936, Box 13, Stone Papers, LC.

92. Danelski, and Tulchin, , Autobiographical Notes, 112; McCabe v. Atchinson, Topeka, & Sante Fe Railroad, 235 U.S.151 (1914), which then denied relief on technical grounds;Missouri ex rel. Gaines v. Canada, 305 U.S.337 (1938)and, in general,Sentell, R. Perry Jr, “The Opinions of Hughes and Sutherland and the Rights of the Individual,” Vanderbilt Law Review 15 (1962): 559615, andHigginbotham, A. Leon Jr, and Smith, William C., “The Hughes Court and the Beginning of the End of the ‘Separate But Equal’ Doctrine,” Minnesota Law Review 76 (1992): 10991131.

93. Bailey v. Alabama, 219 U.S.219 at 238 (1910); Norris v. Alabama, 294 U.S.587 (1935).In 1915 Hughes had laid the procedural basis for Norris by asserting the power of the Supreme Court to review in habeas corpus hearings the content of criminal trials in state courts:Frank v. Mangum, 237 U.S.309 (1915); 35 Sup. Ct. 582. SeeAllen, Arthur M., “The Opinions of Mr. Justice Hughes,” Columbia Law Review 16 (1916): 565–84.Holmes, accounted a liberal on many issues, did not support Hughes's efforts to secure equal rights for African Americans. SeeWhite, G. Edward, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 335–36, 341–42.

94. Justices Butler and McReynolds dissented in Stromberg and all the Four Horsemen dissented in Near.

95. In both cases, the applicants refused to take the prescribed oath to “support and defend the Constitution and laws of the United States against all enemies, foreign and domestic.…” United States v. Bland, 283 U.S. 636; United States v. Macintosh, 283 U.S. 605.

96. Pusey, , Hughes, 1:110, 392–93; Stromberg v. California, 283 U.S.359 (1931); Near v. Minnesota, 283 U.S.697 (1931); Joseph Pollard, quoted inPusey, , Hughes, 2:729.Writing in 1938,Umbreit, Kenneth B., Our Eleven Chief Justices: A History of the Supreme Court through Their Personalities (Port Washington, N.Y.: Kennikat Press, 1938), 2:453, notes that Hughes was the first member of a dissenting sect to serve as chief justice; his predecessors had been either Episcopalians or Catholics.

97. Hughes quoted inHendel, , Hughes, 8, and inFriedman, , “Charles Evans Hughes,” 123; Paul A. Freund on Hughes, quoted inFriedman, , “Hughes Court,” 1951n.Felix Frankfurter was critical of Hughes's commitment to precedent: “If only the theological tradition were not so strong upon our profession… [and] some of its leading ministers like the Chief…, things would be called by their real names instead of pretending that it is all a logical unfolding.…” Frankfurter to Stone, 22 September 1933, Box 13, Stone Papers, LC. In his lectures on The Supreme Court, 198–99, Hughes endorsed a “guarded application and extension of constitutional principles” through “particular cases.”

98. Carolene Products, 304 U.S.144 (1938); Lusky, Louis, “Footnote Redux: A Carolene Products Reminiscence,” Columbia Law Review 82 (1982): 1093, 1096–99.On equal protection, see Frankfurter to Stone, 23 March 1933, Stone's reply of 29 March, Box 13 Stone Papers, LC, andPowell, Lewis F. Jr, “Carolene Products Revisited,” Columbia Law Review 82 (1982): 1087, 1090.

99. Lusky, , “Footnote Redux,” 1096–99.For Hughes's views on rights, seePusey, , Hughes, 2:706–7, andMason, , Stone, 489–92, 530.Parrish, , “Hughes Court,” 300, underlines Hughes's “hostility to legislative interference with property rights.”

100. Hendel, , Hughes, 72; on the Gobitis case, seePusey, , Hughes, 2:729; Friedman, , “Charles Evans Hughes,” 2627. Hughes wanted to uphold the state law both because it was non-discriminatory (it applied to all school children) and because it was based on the police power, the justification for other regulatory legislation. Preferring the public interest to private benefit, Hughes argued (in one of his eleven written dissents) that government employees should not be granted patents for inventions created as part of their official duties:United States v. Dubilier Condenser Corp., 289 U.S.178, 224 (1933).

101. Pusey, , Hughes, 1:227; National Prohibition Cases, 253 U.S.350 (1920).

102. As Sutherland noted, the clause was intended to “foreclose state action impairing the obligation of contracts primarily and especiallyin time of emergency” such as the Depression. Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 465 (1934), emphasis in original.

103. Stone may have influenced this wording by pointing out to Hughes the scale of the crisis: large banking corporations held the mortgages of hundreds of small farmers, so that society was “confronted with a problem of which Chief Justice Marshall probably never had any conception.” 12 December 1933, Box 75, Stone papers, LC.

104. Sunstein, “Lochner's Legacy,” 179, 185–86. Without considering Blaisdell, Sunstein suggests that “the takings and contracts clauses… cannot easily be subject to independent judicial reconstruction” (186).

105. Home Building and Loan Association v. Blaisdell, 290 U.S. 398, at 442 (1934); Mason, , Stone, 359–64.Olken, “Hughes and Blaisdell,” views the decision in the context of other historical strategies and rulings that limited the reach of the contract clause; but the constitutional text could be stretched only so far, and Hughes and the three liberals voted with a unanimous court in striking down a federal debtor-relief law, the Frazier-Lemke Act, inLouisville Joint Stock Land Bank v. Radford, 295 U.S.555 (1935).Hughes's commitment to the societal good likewise determined the inventive holdings in the Gold Clause Cases (1935), which prevented the owners of $100 billion in corporate and government bonds from exercising their express contractual rights and profiting from the government's devaluation of the currency. On these cases, see Friedman, “Hughes Court,” 1914–18, 1923–27, and 1932.

106. 291 U.S. 502, at 522 and 537.

107. McReynolds quoted inKalman, Laura, “Law, Politics, and the New Deal(s),” Yale Law Journal 108.8 (June 1999): 2187; Friedman, , “Hughes Court,” 1904, 1919–20; Hughes, , Supreme Court, 195–96.

108. Truax v. Raich, 239 U.S.33, at 41 (1915); Sentell, , “Hughes and Sunderland,” 563; New State Ice Co. v. Liebman, 285 U.S.262 (1932), andColgate v. Harvey, 296 U.S.404 (1935); on chain stores, seeState Board of Tax Commissioners v. Jackson, 283 U.S.527 (1931)andFriedman, , “Hughes Court,” 1901–2, 1905–6, and 1911–12.

109. Hughes quoted inPusey, , Hughes, 1:253; as an associate justice, Hughes joined in an opinion that exempted state and local bonds from federal taxation, Editor's Note, “Charles Evans Hughes,” 965; Brandeis quoted inFriedman, , “Hughes Court,” 1909n, 1905–6; Parrish, , “Hughes Court,” 299300.

110. Hughes quoted in Editor's Note, “Charles Evans Hughes,” 965;Pusey, , Hughes, 1:204; Perkins, , Hughes, 17; see his“Address to the Attica Chamber of Commerce,” April 1, 1907, inSchurman, , Addresses, 152–54and his speech in Elmira, 3 May 1907, quoted inDanelski, and Tulchin, , Autobiographical Notes, 144. Charles EvansHughes, , Conditions of Progress in Democratic Government (New Haven: Yale University Press, 1910), 3645, offers a justification of administrative governance.

111. Southern Pacific, 230 U.S.537, at 549 (1913); Minnesota, 230 U.S.352 (1913).

112. Pound, Roscoe, “The Causes of Popular Dissatisfaction with the Administration of Justice,” Report of the American Bar Association, 1906, 400–17; Pound, , “Justice According to Law,” Columbia Law Review 13 (1913): 20, 44, 30.SeeWignor, , Roscoe Pound, 123–29.

113. Danelski, and Tulchin, , Autobiographical Notes, 145; White, , Constitution and New Deal, 102–3.In 1904 Hughes's firm of Carter, Hughes & Dwight was one of the largest in the country, with fourteen lawyers; but it was not the bureaucratic organization that Cravathinfluenced firms would soon become. SeeHobson, , “Large Law Firm,” 1021.

114. Quoted inUmbreit, , Our Eleven Chief Justices, 2:491. Earlier Hughes had warned that “mere bureaucracy—narrow, partisan, or inexpert—is grossly injurious.” Those on the Progressive left were likewise distressed by what Randolph Bourne in 1917 called the “riveting of a semi-military State-socialism on the country.” Quoted inRodgers, , Atlantic Crossings, 279.

115. See the discussions inWignor, , Roscoe Pound, 266–73; Horwitz, , Transformation of American Law, 217–20; White, , Constitution and New Deal, 116–21; andHull, , Pound and Llewellyn, 9596, 256–57.

116. Crowell, 285 U.S.22; St. Joseph Stockyards, 298 U.S.38 (1936), at 52. For a general discussion seeHendel, , Hughes, 98113andFriedman, , “Hughes Court,” 1910n.

117. Hughes quoted in Hendel, Hughes, 102, 113. See also Ford Motor Co. v. NLRB, 305 U.S. 364 at 373 (1939).

118. 5 June 1931, and Frankfurter to Stone, 4 December 1931, Box 13, Stone Papers, LC.

119. InStandard Nut, 284 U.S.498 (1932), the Court allowed injunctive relief from a falsely laid tax despite an explicit Rule against such relief in tax cases. See Frankfurter to Stone, 29 February 1932.

120. Stone to Frankfurter, 16 December 1935, Box 13, Stone Papers, LC. The case in question was Colgate v. Harvey, 296 U.S. 404. See alsoPatton v. United States, 281 U.S.276 (1930), in which Stone concurred in the decision but not in Sutherland's opinion regarding the constitutional right to a jury trial, andGreat Northern Railway Co. v. Weeks, 297 U.S.135 (1936), in which the Court invalidated, over Stone's dissent, a non-discriminatory assessment by state tax officials. See also the exchange of letters between Stone and Frankfurter on the Great Northern decision and Hughes's responsibility for the Court's lack of doctrinal consistency in tax cases: 14, 16, and 25 February 1936, Box 13, Stone Papers, LC. When a tax case favored the government, it elicited one of Hughes's rare written dissents (Helvering v. Butterworth [1933], 290 U.S. 365, 371).

121. Dimick v. Schiedt, 293 U.S.474 (1935).

122. 295 U.S. 330 at 375 and 384. For his part, Stone thought that the decision was “about the worst performance of the Court since the Bake Shop [Lochner] case.… [It] puts us back at least thirty years.” To Frankfurter, 9 May 1935, Box 13, Stone Papers, LC.

123. Houston, East and West Texas Railway Company v. United States, 234 U.S. 342 at 353 (1914); Currie, , “Constitution in the Court,” 1119–21; see above, note 58 and the accompanying discussion.

124. McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33; Apex Hosiery Co. v. Leader, 310 U.S. 469 (both 1940, Hughes writing in dissent).

125. The three liberals joined Hughes's dissent; Stone wrote a separate dissent urging that Adkins be overruled. As an associate justice, Hughes had supported minimum wage legislation (see Chicago, Burlington & Quincy Railroad Co. v. McGuire, 219 U.S. 549, 567 andDanelski, and Tulchin, , Autobiographical Notes, 312) and, quoting from his opinion in McGuire, made a strong attack on freedom of contract. See 298 U.S. 587 (1936) at 628; see alsoAdkins, 261 U.S.525 (1923).On the motivation of Hughes and Roberts, seeFriedman, , “Hughes Court,” 1939–53.

126. Jackson, quoted in Friedman, , “Hughes Court,” 1935; Chicago, Burlington and Quincy Railroad Company v. McGuire, 219 U.S.549, at 567 (1911); West Coast Hotel v. Parrish, 300 U.S. 379, at 391 (1937), quoted inFriedman, , “Hughes Court,” 1938.McGuire is discussed above, at note 66.

127. Sunstein, , “Lochner's Legacy,” 159–62.White, , Constitution and New Deal, 221–25,also sees West Coast Hotel (and Blaisdell) as representing a new “living Constitution” theory of interpretation.

128. Quoted inPusey, , Hughes, 2:692–93.

129. Smith in 1936, as quoted in OscarHandlin, , Al Smith and His America (Boston: Little Brown, 1958), 181; Smith, , Progressive Democracy: Addresses and State Papers of Alfred E. Smith (New York: Harcourt Brace, 1928); Hoover quoted in Dawley, Struggles for Justice.

369. “I am on the same side now that I was back in the Collier [magazine] days [of the Progressive era],” the muckraking journalist Mark Sullivan wrote in 1935, “The fight was for individualism then and is for individualism now. The enemy [then] was regimentation attempted by big business; the enemy now is regimentation attempted by the government.” When Otis Graham looked at 105 Progressive leaders whose political views toward the New Deal could be determined, he found that 60 opposed it, 40 supported it, and only 5 favored more radical action, with the supporters coming primarily from “social welfare” rather than “good government” reformers,Graham, , Encore for Reform, 24, 45.

130. As Barry Cushman has shown (“Rethinking the New Deal Court,” 247, nn 254, 255), the Four Horsemen had strong civil liberties records and one or more of them often voted to sustain the New Liberal regulatory and reform legislation of the “Old Deal.” However, they were even more wary than Hughes of the legislative experiments of the New Deal.

131. “So far as Roberts is concerned,” Frankfurter wrote to Stone, “the Chief must bear … the responsibility in having encouraged the process of disregard of the judicial function that lies between the Nebbia and the Tipaldo cases.” 5 June 1936, Box 13, Stone Papers, LC.

132. Panama, 293 U.S. 388 (1935); Schechter, 295 U.S. 495 (1935), Cardozo quote at 553; my discussion follows that in Friedman, “Hughes Court,” 1923, 1923, 1930–32.

133. Arkes, , The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994), 173 and 99–110, 159–73.

134. Butler, 297 U.S.1 (1936); Friedman, , “Hughes Court,” 19531960.SeeDanelski, and Tulchin, , Autobiographical Notes, 192–93, and 193n,for Hughes's view that the taxing powers in the General Welfare clause allowed Congress “to appropriate moneys for the promotion of the agricultural interests of the country” and his explanation of his negative vote in Butler (because of the “essentially coercive character” of the AAA).Rodgers, , Atlantic Crossings, 340, notes that by 1929 the Farm Loan Act had pumped a billion dollars into the farm economy.

135. Smith v. Kansas City Title and Trust Co., 255 U.S. 180 (1921).

136. See 297 U.S. 1 (1936) at 65–66: After much vacillation, Roberts declares: “Study of all these [views of this issue] leads us to conclude that the reading advocated by Mr. Justice Story is the correct one.… It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” See also, Friedman, “Hughes Court,” 1955; Danelski and Tulchin, Autobiographical Notes, 309–10. Hughes had carefully analyzed the role of dicta in the Supreme Court, 165: “Not infrequently a sentence or phrase, or even a paragraph, will get into a majority opinion which does not have majority support and the effect of which one or more of the majority may be desirous of destroying as soon as they get a chance.”

137. On March 2, 1932, Stone complained to Frankfurter that Hughes acted “as though he were the Court,” and that the chief justice assigned opinions to himself “in fields where clearly Brandeis or Cardozo had done some pioneer work.…” “Memorandum of Talk with HFS,” Reel 64, Frankfurter Papers, LC.

138. Even Stone admitted that the Railroad Retirement Act was “a bad one.” Stone to Frankfurter, 9 May 1935, Box 13, Stone Papers, LC.

139. 14 February 1936, and Stone's reply of 16 February, Box 13, Stone Papers, LC.

140. 257 U.S. 501. However, this case involved state taxation of a federal agent. Holmes wrote for the Court; three justices dissented.

141. 285 U.S. 393, at 446.

142. From time to time, Hughes wrote opinions that limited immunity (see Frankfurter to Stone, 30 March 1933, Frankfurter Papers, Reel 64, LC), but usually defined it broadly. On 8 December 1937 Stone complained to Frankfurter that the Court had just missed another opportunity to reverse or revise Coronado (Box 13, Stone Papers, LC). By early 1938, however, Sutherland and Van Devanter had left the Court (replaced by Hugo Black in 1937 and Stanley Reed in the late spring of 1938) and Frankfurter heard rumors of the imminent retirement of McReynolds. Frankfurter to Stone, 14 January 1938, Reel 64, Frankfurter Papers, LC. In his usual precise language, Hughes limited the reach of the decision. See 303 U.S. 376, at 386–87. Hughes to Stone, 23 February 1938, Box 75, Stone Papers, LC.

143. Roosevelt quoted inFriedman, , “Hughes Court,” 1932.For the impact on FDR of the British New Liberal legislation of 1906–1914, seeRodgers, , Atlantic Crossings, 56, 423–24.

144. 298 U.S. 278, at 317 (1936).

145. Leuchtenburg, , “When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman Thesis,” Yale Law Journal 108 (1999): 2077.Thus, Democratic Governor Eugene Talmadge urged his fellow Georgians not to “allow a bunch of Communists to have four more years to appoint the successors to such stalwart men as Chief Justice Hughes, and Associate Justices Butler, McReynolds, Sutherland, and Van Devanter” (at 2089). See also,Leuchtenburg, , “Franklin D. Roosevelt's Supreme Court Packing Plan,” in Hollingsworth, Harold M. and Holmes, William F., Essays on the New Deal (Austin: University of Texas Press, 1969), 69115.

146. My interpretation is broadly consistent with Bruce Ackerman's argument that the constitution was judicially “amended” between 1936 and 1941.Ackerman, , “Constitutional Politics/Constitutional Law,” Yale Law Journal 99 (1989): 453512and the works cited in note 9. As Charles Wyzanski, Jr., the New Deal lawyer who was a central participant in the constitutional revolution, told Learned Hand: “it was not really Mr. Wyzanski who won the Wagner cases, but Mr. Zeitgeist.” Quoted inGunther, , Learned Hand, 462.

147. Rodgers, , Atlantic Crossings, 414, 415.Crises like the New Deal, Rodgers points, “lead to a frantic rummaging through the existing stock of policy notions” and often allow the adoption that previously had not been politically possible: “The New Deal was a great, explosive release of the pent-up agenda of the progressive past.”

148. See note 68. NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1, at 41 (1937). To justify his support for this expansion of federal authority, Hughes also pointed to the Minnesota Rate Cases as indicative of his broad view of the commerce power. See Danelski and Tulchin, Autobiographical Notes, 312–13, and Minnesota Rate Cases, 230 U.S. 353 at 399 and 431.

149. Friedman, , “Hughes Court,” 1964, argues that Jones & Laughlin “merely stated a corollary” to the doctrine outlined in the Shreveport Cases that Congress could regulate intrastate activities that bear “a close and substantial relation to interstate traffic.” But Friedman acknowledges that “the Court had previously refused to draw” this corollary proposition; indeed, as Currie points out (“Constitution in the Court,” 1120–21), many justices, including Hughes, expended considerable energy trying to limit the scope of the commerce clause. Consequently, Jones & Laughlin represents a major change from Shreveport. For Cushman's slightly different argument that Hughes continued to rely on Progressive era doctrine, seeKalman, , “Law, Politics, and the New Deal(s),” 2178.

150. Bedford McGoldrick v. Berwind-White Coal Mining Co., 309 U.S.33 (1940), involved a New York City tax on coal, whileApex Hosiery Co. v. Leader et al., 310 U.S.469 (1940), dealt with a strike that inhibited interstate commerce.

151. Helvering v. Davis, 301 U.S.619 (1937)upheld the pension provisions of the Act, whileSteward Machine Co. v. Davis, 301 U.S.548 (1937)validated its sections on unemployment.

152. 301 U.S. 619, at 639 for discussion of the procedural issue; Frankfurter to Stone, 2 June 1937, Box 13, Stone Papers, LC.

153. For two of Hughes's dissents, see the cases cited in note 150.Friedman, , “Hughes Court,” 19741981, discusses the impact of the change in the composition of the Court. Data presented inPritchett, C. Herman, The Roosevelt Court (1948; Chicago: Quadrangle Books, 1969), 3238White, , Constitution and New Deal, 227–28, argues that Hughes remained committed to traditional commerce clause doctrine, only reluctantly joining Stone's opinion inUnited States v. Darby Lumber Co., 312 U.S.100 (1941)that went far beyond Jones & Laughlin in breaking new doctrinal ground.

154. Tomlins, The State and the Unions; Dawley, , Struggles for Justice, 383; Leff, , New Deal and Taxation, table 1, shows that in 1940 the income and estate taxes collected from wealthy Americans accounted for 23 percent of federal revenue while the excise, tariff, and social insurance taxes paid mostly by (the much greater number of) less-wealthy citizens brought in 55 percent.

155. My discussion of Belloc follows that inEmy, , Social Politics, 290–93; Emy's comment appears on 291.

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