¹ New York Times (hereafter NYT), Jan. 21, 1885. Photograph by Jacob Riis shows a Bohemian cigar maker and family working in a tenement in 1890. The author gratefully acknowledges helpful comments and suggestions by Edward Balleisen, Randy Bergstrom, Elizabeth Blackmar, Eileen Boris, Robin Einhorn, Mark Hendrickson, Herbert Hovenkamp, Richard John, Laura Kalman, Michael Lacey, William Leach, Nelson Lichtenstein, Kenneth Moure, Alice O'Connor, Logan Everett Sawyer, Reuel Schiller, David Schuster, and members of a special session of the UCSB Center for the Study of Work, Labor, and Democracy. Anonymous readers for JGAPE provided exceptionally valuable suggestions.

² In the Matter of the Application of Peter Jacobs, 98 N.Y. 98 (1885), hereafter In re Jacobs. On the New York court's handling of other kinds of police powers cases, see Batlan, Felice, “A Reevaluation of the New York Court of Appeals: The Home, the Market, and Labor, 1885–1905,” Law & Social Inquiry 27:3 (2002): 489–528CrossRefGoogle Scholar.

³ Crawford, Ruth, “Development and Control of Industrial Homework,” Monthly Labor Review 58 (1944): 1145–58Google Scholar states at 1147 that the Jacobs ruling “effectively blocked for 30 years any further attempt to prohibit homework.” See also Boris, Eileen, “‘A Man's Dwelling House Is His Castle’: Tenement House Cigarmaking and the Judicial Imperative,” Work Engendered: Towards a New History of American Labor, ed. Baron, Ava (Ithaca, NY: Cornell University Press, 1991)Google Scholar.

⁴ Henry Schofield, “How the Recall of Judicial Decisions Would Protect the Weak from Injustice: Illinois and Other Supreme Courts Proved to Make Many Unwarranted Decisions Favoring Capital as Against Labor,” with a subheader reading “State Court Decisions Infringing on the Liberty of the People,” Chicago Tribune (Apr. 7, 1912) placed the Jacobs case at the head of a long line of such rulings and chastised the courts for “perversion of judicial duty to pass on the constitutionality of legislation.” Schofield was professor of law at Northwestern University and associate editor of the Illinois Law Review. For authority, he recalled a talk read at the 1893 Chicago Exposition by Harvard law professor James B. Thayer, who had charged, “No defense of these decisions can be found in the literature of the law; certainly none that has attracted attention or notice.”

⁵ “Address before the Wisconsin State Agricultural Society,” Sept. 30, 1859, Abraham Lincoln: His Speeches and Writings, ed. Basler, Roy P. (Cleveland, OH: World Publishing Company, 1946), 493–504Google Scholar.

⁶ On politics and the U.S. economy since the 1970s, see Phillips-Fein, Kim, Invisible Hands: The Making of the Conservative Movement from the New Deal to Reagan (New York: W. W. Norton, 2009)Google Scholar; Stein, Judith, Pivotal Decade: How the United States Traded Factories for Finance in the Seventies (New Haven, CT: Yale University Press, 2010)Google Scholar; Cowie, Jefferson, Stayin' Alive: The 1970s and the Last Days of the Working Class (New York: New Press, 2010)Google Scholar.

⁷ On public choice and the influence of the Chicago school, see Burgin, Angus, The Great Persuasion: Reinvesting Free Markets since the Depression (Cambridge, MA: Harvard University Press, 2012)CrossRefGoogle Scholar, passim; Teles, Steven, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, NJ: Princeton University Press, 2008)Google Scholar; Blythe, Mark, Great Transformations: Economic Ideas and Institutional Change in the Twentieth Century (New York: Cambridge University Press, 2002)CrossRefGoogle Scholar; Furner, Mary O., “From ‘State Interference’ to the ‘Return to the Market’: The Rhetoric of Economic Regulation from the Old Gilded Age to the New,” Government and Markets: Toward a New Theory of Regulation, eds. Balleisen, Edward and Moss, David (Cambridge: Cambridge University Press, 2010), 92–142Google Scholar; Jessica Leight, “Public Choice: A Critical Assessment,” Government and Markets, 213–24; Harvey, David, A Brief History of Neoliberalism (New York: Oxford University Press, 2005)Google Scholar.

⁸ Employers’ concerns about these efforts are noted in “Hot Topics in Labor & Employment Law for 2016: Everything Old Is New Again,” National Law Review, Feb. 4, 2016, https://www.natlawreview.com/article/hot-topics-labor-employment-law-2016-everything-old-new-again (accessed Sept. 1, 2017). See also “2015 Employment Law Changes & Trends,” Plumbing, Heating, Cooling Contractors, http://www.phccweb.org/NewsPublication/ebulletindetail.cfm?ItemNumber=13766&ewebToken={token}&Site=PHCC (accessed Sept. 1, 2017).

⁹ Boris, “‘A Man's Dwelling Is His Castle’” describes gendered conceptions of work and work locations suitable for male and female cigar makers that entered into organizational disputes among unionized and non-union workers and tenement owners over the need for regulation.

¹⁰ “The Cigar Trade: A Dangerous System of Labor—Protest by Cigar Makers,” NYT, Sept. 28, 1874.

¹¹ Cigar makers had approached a meeting of the city Board of Health seeking enforcement of the city Sanitary Code, Section 19, prohibiting “the use of sleeping apartments containing poisonous or offensive matter” including “nicotine, a poisonous substance” that particularly endangered the health of children, causing many premature deaths. See “Action by the Board of Health. Cigar Making in Tenement Houses—Proceeding Against Nuisances,” NYT, June 23, 1879.

¹² The allegation of health effects was confirmed in Report of the Condition of Women and Child Wage Earners in the United States, Vol. VIII (Washington, DC: Government Printing Office, 1911), 124Google Scholar, which listed cigar making as one of several industries that were employments “dangerous to life or limb, injurious to the health or depraving of the morals of such child” and in need of regulation in light of the “danger or menace to the health or safety of minors.”

¹³ “Turbulent Cigar Makers,” NYT, Jan. 6, 1878; “Grievances of Cigar Makers: One Thousand of the Workers Hold Mass Meeting—the Tenement House System Denounced,” NYT, Feb. 3, 1879; “Cigar Making in Tenement Houses,” NYT, Feb. 16, 1879. See also “Tenement-House Cigar Work: East Side Property-Owners Protest Against It,” NYT, Feb. 28, 1880 for middle-class reformer support. See also “Journal of the Senate of the United States of America,” Serial Set Vol. No. 188, 46th Congress, 2nd Session, 1879, Senate Finance Committee: “Mr. [Newton] Booth presented a petition of the Cigar Makers Association of the Pacific Coast praying the passage of a law preventing the system of tenement house production, which was referred to the Senate Committee on Finance.” Booth was then a former governor of California who also demanded, in a Spencerian and eugenicist mode, restraints against a “clash of civilizations” that he declared would stem from continued racial mixing. Chinese immigrants did work to some degree in cigar making in California, but in the New York case at this time the immigrant tenement workers were mainly Bohemian. In a manner reminiscent of recent U.S. attacks on immigrants who are said to “take American jobs,” Booth predicted downward pressure on wages. Quoted in Martin Gold, Forbidden Citizens: Chinese Exclusion and the U.S. Congress: A Legislative History (Capitol Net. Inc., July 4, 2012).

¹⁴ “Strike of Cigar Makers. The Workmen of Five Factories Demanding Higher Rates—No Danger of a General Strike,” NYT, Aug. 29, 1877; “The Cigar Makers Protest,” NYT, Feb. 21, 1880. Pay for cigar makers ranged from $4.00–$5.00 in factories for making 1000 cigars to half that amount, typically $2.00, in tenements. “A Cigar-Maker's Home: How the Strikers Live. Using Up the Scanty Savings of Months of Hard Work. …Two Dollars a Week for Food,” NYT, Dec. 2, 1877 is a Times reporter's account on a day spent with a family of five tenement workers living in two rooms, with only the baby among three children not working alongside their parents.

¹⁵ The Samuel Gompers Papers, Vol. 1: The Making of a Union Leader, 1850–86 (Champaign: University of Illinois Press, 1991), 172–76Google Scholar. Testimony before the Congressional Immigration Committee reported how manufacturers encouraged immigration and in slack times shifted work to women who were paid less before. Tenement-House Labor: How It Has Forced Wage-Workers to Abandon Trades … Women Tell Their Stories,” Washington Post, Aug. 16, 1888.

¹⁶ In re Jacobs, 583.

¹⁷ “Tenement House Cigar Making: Contents of the Bill Just Passed by the Legislature,” NYT, Mar. 14, 1883. See The Bar 16 (Jan. 1909): 28 for Roosevelt's support of the ban and for his later plea “for the recognition and validity of an act of the legislative department.” Roosevelt described the Jacobs court judges as “without any sympathetic understanding of the needs and conditions of life of the great mass of their countrymen … [and] of the lives that were lived where the tenement house and the factory were one and the same.” Quoted in Outlook editorial titled “A Judicial Experience,” The Bar, at 29. See also Roosevelt, Theodore, The Rough Riders: An Autobiography (New York: The Library of America, 2004)Google Scholar, Chronology, 858.

¹⁸ “Tenement Cigar-Making: The Law Against It Declared Unconstitutional. A Court of Appeals Decision Based on the Fact That the Title of the Act Is Defective,” NYT, Jan. 29, 1884. See also the related case, 94 N.Y. 497 (1884) “In the Matter of the Application of David A. Paul for a Writ of Habeas Corpus.” The court dismissed charges against Paul on the grounds described above.

¹⁹ “Hurrying the Cigar-Makers Case,” NYT, Oct. 20, 1883. On the individualist theory of the ruling, see Borchard, Edwin, “The Supreme Court and Private Rights,” Yale Law Journal 47:7 (1938): 1051–78CrossRefGoogle Scholar, at 1058; Friedman, Gerald. “American Labor and American Law: Exceptionalism and its Politics in the Decline of the American Labor Movement,” Law, Culture and the Humanities (2012): 1–14Google Scholar.

²⁰ In re Jacobs, 583. The Jacobs ruling has been a major landmark in the history of laissez-faire constitutionalism and in the so-called classical tradition in legal reasoning, as assessed in the following: Horwitz, Morton, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992)Google Scholar; Fiss, Owen M., Troubled Beginnings of the Modern State, 1888–1910 (New York: Macmillan, 1993)Google Scholar; McCurdy, Charles W., “Roots of Liberty of Contract Jurisprudence Reconsidered: Major Premises in the Law of Employment, 1867–1937,” Yearbook of the United States Supreme Court (Supreme Court Historical Society, 1984): 20–33Google Scholar. Benedict, Michael Les, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3:2 (1985): 293–33CrossRefGoogle Scholar, argues at 298 that classing laissez-faire judicialism as a product of favoritism toward the business classes as earlier legal history scholars had done suggests an inability to enter into the mental world of nineteenth-century legal thinkers for whom laissez-faire meant, first and foremost, that “the power of government could not legitimately be exercised to benefit one person or group at the expense of others.”

²¹ Tiedeman, Christopher G., A Treatise on the Limitations of the Police Power of the United States, considered from both a criminal and a civil standpoint (St. Louis, MO: F. H. Thomas Law Book, 1886)Google Scholar; Tomlins, Christopher L., “Law, Police, and the Pursuit of Happiness in the New American Republic,” Studies in American Political Development 4 (1990): 3–34CrossRefGoogle Scholar. See also Dubber, Marcus Dirk, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005)Google Scholar; Vinel, Jean-Christian, The Employee: A Political History (Philadelphia: University of Pennsylvania Press, 2013)Google Scholar.

²² Hastings, William Granger, The Development of Law as Illustrated by the Decisions Relating to the Police Power of the State (Philadelphia: Proceedings of the American Philosophical Society, 1900): 1–195Google Scholar, quotations at 10, 139. An elected county judge and later professor of constitutional law in the University of Nebraska, Hastings meticulously tracked the evolution of the uses and constraints on the internal police from the pre-revolutionary era to his own day.

²³ The classic works on civic republicanism are Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967)Google Scholar; Wood, Gordon, The Creation of the American Republic 1776–1787 (Chapel Hill: University of North Carolina Press, 1969)Google Scholar; Pocock, J. G. A., The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ: Princeton University Press, 1975)Google Scholar; Rodgers, Daniel T., “Republicanism: the Career of a Concept,” Journal of American History 79:1 (1992): 11–38CrossRefGoogle Scholar. Again, the classic works that claim a dominant liberalilsm are Appleby, Joyce, Capitalism and a New Social Order (New York: New York University Press, 1984)Google Scholar; Appleby, , Liberalism and Republicanism in the Historical Imagination (Cambridge, MA: Harvard University Press, 1992)Google Scholar. The battle for Jefferson's soul will continue; for a judicious reflection on the differences between those who claim him for liberalism and those who find him among republicans, while asserting that neither side won, see Shankman, Andrew, Original Intents: Hamilton, Jefferson, Madison, and the American Founding (New York: Oxford University Press, 2017)Google Scholar.

²⁴ Christopher L. Tomlins, “Law, Police, and the Pursuit of Happiness in the New American Republic,” passim. Quotation at 6. Cf., Appleby, Joyce, “Historians, Community, and the Pursuit of Jefferson: Comment on Professor Tomlins,” Studies in American Political Development 4 (1990): 35–44CrossRefGoogle Scholar.

²⁵ Looking to the courts to protect individual rights, Hamilton favored life tenure for judges to provide a check on “the immediate mischiefs” that could flow from “unjust and partial laws” passed by legislatures possessed of “ill humours.” Alexander Hamilton, as Publius, Federalist 78, n.p. For Madison and Hamilton in Federalist 51, divided government, a strengthened judiciary and a “policy of supplying, by opposite and rival interests, the defect of better motives” must prevail to safeguard liberty. On Marshall's role, see Goetzmann, William H., Beyond the Revolution: A History of American Thought from Paine to Pragmatism (New York: Basic Books, 2009), 86–89Google Scholar. For the general context, see Wilentz, Sean, The Rise of American Democracy: Jefferson to Lincoln (New York: W. W. Norton, 2005)Google Scholar.

²⁶ Madison foresaw the irrepressible conflict that a conflict between sections of the country might present. On the imputed liberalism of these founders, see Appleby, Joyce, “The Intellectual Underpinnings of American Democracy,” Daedalus 136: 3 (2007)CrossRefGoogle Scholar. For an alternative view, see Sitaraman, Ganesh, The Crisis of the Middle-Class Constitution (New York: Knopf, 2017)Google Scholar, which stresses the influence on the founders and early republican thinkers generally of James Harrington's view that political power followed the distribution of property, suggesting that concentration of ownership would undermine a broadly shared equality. Tocqueville warned of this, Sitaramin reminds us; and In re Jacobs saw the New York high court “with willful blindness to the new economic realities” rule as if theirs was a world of small artisans who still enjoyed economic mobility rather than one of sweated labor. Quotation at 155.

²⁷ Awareness of this transition was international. Tomlins, “Law, Police, and the Pursuit of Happiness,” 11, quotes the German liberal Eduard Lasker stating from the vantage point of the 1860s: “Rule of law and rule of police are two different ways to which history points, two methods of development between which peoples must choose and have chosen.”

²⁸ For nineteenth-century jurists, Hastings, Police Power, 60–65, finds that the main restriction of property recognized was the mandate that it be used only in ways that did not harm the persons or property of others with the equal right to enjoy their own. See also Cooley, , “Labor and Capital Before the Law,” North American Review 337 (1884): 503–16Google Scholar, passim.

²⁹ First noted by historian Goodrich, Carter, Government Promotion of American Canals and Railroads, 1800–1890 (New York: Columbia University Press, 1960)Google Scholar and recovered in penetrating detail by Larson, John Lauritz, Internal Improvement: National Public Works and the Promise of Popular Government in the Early United States (Chapel Hill: University of North Carolina Press, 2000)Google Scholar; idem, The Market Revolution in America: Liberty, Ambition, and the Eclipse of the Common Good (New York: Cambridge University Press, 2009)Google Scholar. Leading “new school” economist H. C. Adams in the 1880s saw the states’ withdrawal from internal improvements as an ominous portent of a more general turn to a public policy era based on expanded reliance on laissez-faire.

³⁰ Watson, Harry, Liberty and Power: The Politics of Jacksonian America (New York: Hill and Wang, 1990)Google Scholar; Howe, Daniel Walker, What Hath God Wrought: The Transformation of America, 1815–1848 (New York: Oxford University Press, 2007)Google Scholar; Remini, Robert, Andrew Jackson and the Bank War (New York: W. W. Norton, 1967)Google Scholar; Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (New York: Oxford University Press, 1995)Google Scholar.

³¹ Faler, Paul, Mechanics and Manufacturers in the Early Industrial Revolution: Lynn, Massachusetts, 1780–1860 (Albany: State University of New York Press, 1981)Google Scholar; Johnson, Paul E., A Shopkeeper's Millennium: Society and Revivals in Rochester, New York, 1815–1837 (New York: Hill and Wang, 1978)Google Scholar; Novak, William, People's Welfare: Law and Regulation in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar, esp. ch. 3, “Public Moralists: Disorderly Houses and Demon Rum.” Novak, People's Welfare, passim. We do not learn in this latter study the extent of actual enforcement of these rules. See also, for the earlier incidence of paternalistic oversight of workers’ lives, Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1992)Google Scholar.

³² My evocation of Karl Polanyi's reference to the “double movement” is intentional. Billings's quotation is in Novak, People's Welfare, 95

³³ Nelson, William E., The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1988)Google Scholar.

³⁴ An act to protect the health of the City of New Orleans, to locate the stock landing and slaughterhouses, and to incorporate the Crescent City Livestock Landing and Slaughterhouse Company, upheld in the Slaughterhouse Cases 83 U.S. 36 (1873). Undoubtedly in the case of slaughtering in New Orleans, the entire public was not subjected in the same degree to the noxious smells put out by each butchery, as wealthier members of the community could locate in choicer neighborhoods farther away. From Novak's account, we see no evidence of police actions aimed at capitalist ventures before Slaughterhouse, and the case there was indirect, based on protection against a perceived nuisance.

³⁵ In re Jacobs, 11–12.

³⁶ Nelson, The Fourteenth Amendment, passim. See also Yudof, Mark G., “1990 Survey of Books Relating to the Law; I. The Federal Courts and the Constitution: Equal Protection, Class Legislation, and Sex Discrimination: One Small Cheer for Mr. Herbert Spencer's Social Statics,” Michigan Law Review 88 (1990): 1366–92CrossRefGoogle Scholar. On the kinds of cases in which courts permitted requirements placed upon a particular class and not others, see “The Right of Freedom of Contract,” Harvard Law Review 11:1 (1897): 56–58CrossRefGoogle Scholar.

³⁷ Among many outstanding studies of these changes, see Beckert, Sven, The Monied Metropolis: New York City and the Consolidation of the American Bourgeoisie, 1850–1896 (New York: Cambridge University Press, 2001)CrossRefGoogle Scholar; Zunz, Olivier, Making America Corporate, 1870–1920 (Chicago: University of Chicago Press, 1990)Google Scholar; Enstad, Nan, Ladies of Labor, Girls of Adventure: Working Women, Popular Culture, and Labor Politics at the Turn of the Twentieth Century (New York: Columbia University Press, 1999)Google Scholar.

³⁸ Seager, Henry R., “The Attitude of American Courts Towards Restrictive Labor Laws,” Political Science Quarterly 19:4 (1904): 589–611CrossRefGoogle Scholar, quotation at 96. This article reviews the legal disposition of anti-truck laws in the period. Corwin, Edwin, “The Extension of Judicial Review in New York: 1783–1905,” Michigan Law Review 15:4 (1917): 281–313CrossRefGoogle Scholar, traced the doctrine of vested rights to a New York case, Dash v. Van Kleeck (427 Johns. 477, 1811) and found that it was the first in which the Supreme Court disallowed “special legislation affecting detrimentally the vested rights of selected persons.” New York State's court of appeals began to base such rulings on the due process clause of the Fifth Amendment in the 1850s. Following incorporation of the Fourteenth Amendment during Reconstruction, dissents in Slaughterhouse, and the majority finding in Butcher's Union v. Crescent City, Corwin argued, the New York high court gave vested property rights “the full dignity of established doctrine, in the case of In re Jacobs.” For Corwin, then, Jacobs marked the last of three stages “by which the doctrine of Vested Rights was expanded in New York to the modern concept of Due Process of Law, the obverse of which is the present-day judicial theory of the Police Power.” Quotations at 292, 295.

³⁹ Classic works on these developments in labor history include Fink, Leon, Workingmen's Democracy: The Knights of Labor and American Politics (Urbana: University of Illinois Press, 1985)Google Scholar; Laurie, Bruce, Artisans into Workers: Labor in Nineteenth-Century America (New York: Hill and Wang, 1989)Google Scholar; Lichtenstein, Nelson, State of the Union: A Century of American Labor (Princeton, NJ: Princeton University Press, 2002)Google Scholar.

⁴⁰ Schubert, Hans-Joachim, “The Foundation of Pragmatic Sociology: Charles Horton Cooley and George Herbert Mead,” Journal of Classical Sociology 6 (2006): 51–74CrossRefGoogle Scholar; Menand, Louis, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus, and Giroux, 2002)Google Scholar; Furner, Mary O., Advocacy and Objectivity: A Crisis in the Professionalization of American Social Science, 1875–1905 (1975; New York: Transaction Books, 2012)Google Scholar.

⁴¹ Hadley, Arthur T., “How Far Have Modern Improvements in Production and Transportation Changed the Principle That Men Should Be Left Free to Make Their Own Bargains?” Science 7:161 (1886): 221–22Google Scholar.

⁴² Burgess, John William, “The Ideal of the American Commonwealth,” Political Science Quarterly 10:3 (1895): 404–25CrossRefGoogle Scholar, quotations at 422. “For elective government must be party government—majority government; and unless the domain of individual liberty is protected by an independent unpolitical department, such government degenerates first into majority absolutism and then into Caesarism,” Burgess held in response to these developments.

⁴³ “The Court of Appeals Denounced,” NYT, Feb. 2, 1884. The New York activists had support from across the nation. In one instance, the desire for a ban on tenement production was tinged with racial prejudice. Having recruited white cigar makers from across the country including a contingent from New York City that he had persuaded to move to San Francisco to displace Chinese in the trade, the president of that city's branch of the International Cigar Makers Union reported being met on their return by white marchers who carried a banner reading “Down with Tenement House and Chinese Labor. WHITE CIGAR-MAKERS: Arrival of the Eastern Contingent: An Enthusiastic Welcome,” San Francisco Chronicle, Jan. 3, 1886. A powerful affirmation that judges typically responded to pressure came a few years later in Tiedeman, Christopher Gustavus, “Dictum and Decision,” Columbia Law Times 6 (1892–1893): 35–39Google Scholar, at 35: “Self-interest is the great motive power in all social movements, and whichever interest exerts the strongest influence in the given case will undoubtedly succeed in controlling the judicial utterance,” wrote the influential police powers scholar. On later strikes see, for example, “Against Tenement Labor: The Great Strike of the New York Cigar-makers Has Begun,” Chicago Tribune, Jan. 8, 1888.

⁴⁴ Hurvitz, Haggai, “American Labor Law and the Doctrine of Entrepreneurial Property Rights: Boycotts, Courts, and the Juridical Reorientation of 1886–1895,” Industrial Relations Law Journal 8:3 (1985): 307–61Google Scholar. McCurdy, “Roots of ‘Liberty of Contract’ Reconsidered,” offers a masterful analysis of the relevant historiography on this point. See also for the broader context Hovenkamp, Herbert, The Opening of American Law: Neoclassical Legal Thought, 1870–1970 (New York: Oxford University Press, 2015)Google Scholar, esp. Part Four, Neoclassical Public Law.

⁴⁵ On the “moral plane,” see Adams, Henry Carter, “Relation of the State to Industrial Action,” Publications of the American Economic Association 1:6 (Jan. 1887): 7–85Google Scholar. For another late nineteenth-century view, see Abbot, Everett V, “Police Power and the Right to Compensation,” Harvard Law Review 3:5 (1889–1890): 189–205CrossRefGoogle Scholar. See also for the broader context Logan Sawyer, “Revising Gilded Age History,” Journal of the Gilded Age and Progressive Era, forthcoming.

⁴⁶ Urofsky, Melvin I., “State Courts and Protective Legislation during the Progressive Era: A Reevaluation,” Journal of American History 72:1 (1985): 63–91CrossRefGoogle Scholar.

⁴⁷ Consideration of the “health, safety, and morals” justification became a staple of the court decisions of the Gilded Age and Progressive Era. According to Herbert Hovenkamp, the phrase appeared in 44 cases before 1890, in an additional 100 cases between 1890 and 1900, and in 1100 more between 1900 and 1930. Hovenkamp to Furner, Sept. 14, 2014, in author's possession. Quotation is at Borchard, “Supreme Court and Private Rights,” 1066. Borchard clearly did not include the Civil Rights Cases of 1883 or Plessy v. Ferguson as “social legislation.”

⁴⁸ In re Jacobs, Opinion by Earl, 590.

⁴⁹ Wynehamer v. People, 13 N.Y. 378 (1856), “An act for the prevention of intemperance, pauperism and crime,” http://law.jrank.org/pages/25395/Wynehamer-v-People-Prohibition-Property.html (accessed Oct. 16, 2016). Quotation at 181. See also Horwitz, Transformation of American Law, n. 120.

⁵⁰ Corwin, “Extension of Judicial Review in New York: 1783–1905.” References to Wynehamer and Jacobs are at 283, 293, 295, 296.

⁵¹ State courts struck down truck laws in cases decided in Illinois, Kansas, and Indiana in the 1890s. The Illinois court relied on a thoroughly republican but outdated understanding of their society, stating: “In this country the employee to-day may be the employer next year, and laws treating employees as subjects for such protective legislation belittle their intelligence and reflect upon their standing as free citizen.” State v. Haun, 59 Pacific Reporter, quoted at 594 in Seager, “Attitude of American Courts Towards Restrictive Labor Laws.” Three states’ courts upheld anti-truck laws between 1897 and 1900. Seager, 595–98.

⁵² Godcharles v. Wigeman, 113 Pa. St. 431 (1886), 356. For a superb analysis of this case, see Sawyer, Laura Phillips, “Contested Meanings of Freedom: Workingmen's Wages, the Company Store System, and the Godcharles v. Wigeman Decision,” Journal of the Gilded Age and Progressive Era 12 (2013): 285–319CrossRefGoogle Scholar.

⁵³ Field mainly opposed legislative creation of a monopoly in an ordinary trade. McCurdy, Charles W., “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897,” Journal of American History 61:4 (1975): 970–1005CrossRefGoogle Scholar, at 977. Quotation above is from “Opinion by Earl,” In re Jacobs, 590.

⁵⁴ In re Jacobs, with Wynehamer the first supporting case cited, at 583.

⁵⁵ Furner, Mary O., “The Republican Tradition and The New Liberalism: Social Investigation, State Building, and Social Learning in the Gilded Age,” The State and Social Investigation in Britain and the United States, eds. Lacey, Michael J. and Furner, Mary O. (New York: Cambridge University Press, 1993), 171–241Google Scholar.

⁵⁶ The literature on this transformation of social structure is vast. A synthetic account that posits a transitional period across the turn of the twentieth century that involved “sinking the lower class” and “raising hierarchies” is Wiebe, Robert, Self Rule: A Cultural History of American Society (Chicago: University of Chicago Press, 1995)Google Scholar. See also his important Search for Order (New York: Hill and Wang, 1968)Google Scholar on the new middle class. The “new labor history” modeled by E P. Thompson and Herbert Gutman revealed ways that workers made themselves a self-conscious class. Trachtenberg, Alan, The Incorporation of America: Culture and Society in the U.S. Gilded Age (New York: Hill and Wang, 1982)Google Scholar describes the impact on careers and the sense of class inhabited by those who went to work for corporations. For the changing formations and cultural authority of the old and new professions, see Wiebe, , The Segmented Society (New York: Oxford University Press, 1975)Google Scholar.

⁵⁷ On the recognition in the period of a class-ordered society, see White, Richard Grant, “Class Distinctions in the United States,” North American Review 137:322 (1883): 231–46Google Scholar; Walker, Francis Amasa, “Efforts of the Manual Laboring Class to Better Their Condition,” Publications of the American Economic Association 3:3 (1888): 7–26Google Scholar; In re Jacobs, 98, 101.

⁵⁸ Acts 1887, c. 63 para 5.in Uriah Barnes, ed. West Virginia Code (Albany, NY: J. B. Lyon Company, 1916.

⁵⁹ State v. Goodwill, 33 W. Va. 179 (1889).

⁶⁰ Ritchie v. People, 155 Ill. 98 (1895) 460, 467. Bruce, Andrew Alexander, “The Illinois Ten-Hour Labor Law for Women,” Michigan Law Review 8:1 (1909): 1–24CrossRefGoogle Scholar. The Ritchie opinion cited In re Jacobs, State v. Goodwill, and Godcharles v. Wigemann in support of recognizing the contracting for one's labor as a property right. Thus the court held that “the mere fact of sex will not justify the legislature in putting forth the police power of the state for the purpose of limiting her exercise of those rights.” Quotation at 458.

⁶¹ Minor v. Happersett, 88 U.S. 162 (1875). Tiedeman, Christopher Gustavus, Constitutional Limitations Which Rest Upon the Legislative Powers of the States of the Union (St. Louis, MO: Thomas Law Book, 1886)Google Scholar, quotation at 460.

⁶² Holden v. Hardy, 169 U.S. 366 (1898). On the progress of hours laws for various categories of workers, see Henderson, Charles Richmond, “Industrial Insurance. XI. Protective Legislation,” American Journal of Sociology 14:2 (1908): 197–212CrossRefGoogle Scholar. See also Smith, James Morton and Murphy, Paul L., eds., Liberty and Justice: A Historical Record of American Constitutional Development (New York: Knopf, 1958)Google Scholar, esp. ch. 18, “Police Power and the Progressive Era.”

⁶³ Holden v. Hardy, Argument for Plaintiff in Error, 371.

⁶⁴ Holden v. Hardy, Argument for Plaintiff in Error, 373–79.

⁶⁵ Munn v. Illinois, 94 U.S. 113, 125, 126.

⁶⁶ Foster, W. Frederic, “The Doctrine of the United States Supreme Court of Property Affected by a Public Interest, and Its Tendencies,” Yale Law Review 5:2 (1895): 49–52CrossRefGoogle Scholar, quotation at 49.

⁶⁷ Holden v. Hardy, 169 U.S. 366 (1898), 370–73, 377, quotation at 370. The defense cited numerous precedents upholding freedom of contract in cases involving terms of employment, among them Jacobs, Godcharles v. Wigeman, State v. Goodwill, and Ritchie v. People.

⁶⁸ The influence of “classical legalism” and even the very existence of such an idee fixe among Gilded Age judges have been heavily debated in recent years. For a judicious consideration of these issues see Morton Horwitz, Transformation of American Law, 1870–1960, esp. ch. 1, “The Structure of Classical Legal Thought, 1870–1905.” Cf. Hovenkamp, Opening of American Law: Neoclassical Legal Thought, 1870–1970, Part 2, “Neoclassical Legal Thought.”

⁶⁹ Holden v. Hardy, 385, 386, 387. On the juxtaposition of individual and social justice, see Kostal, R. W., “Legal Justice, Social Justice: An Incursion into the Social History of Work-Related Accident Law in Ontario, 1860–86,” Law and History Review 6:1 (Spring, 1988): 1–24CrossRefGoogle Scholar; Friedman, Lawrence and Ladinsky, Jack, “Social Change and the Law of Industrial Accidents,” Columbia Law Review 67 (1967): 50–82CrossRefGoogle Scholar. See also Forbath, William, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991)Google Scholar; Urofsky, “State Courts and Protective Legislation During the Progressive Era,” passim. On the career of mine safety legislation in this period, see Sawyer, “Contested Meanings of Freedom,” 298–300.

⁷⁰ Holden v. Hardy, 385–92, quotations at 385, 387, 391.

⁷¹ For the standard account, see, e.g., Fiss, Troubled Beginnings of the Modern State, 172–75.

⁷² Holden v. Hardy, 393–97.

⁷³ A year prior, a leading law review had recognized the need for reconsidering the actually existing reality of liberty of contract, stating: “Whenever two classes of persons may reasonably be supposed to stand in such relation to each other that the necessity or weakness of one deprives it of real liberty of action in regard to contracts between the two, it is a proper exercise of legislative power to interfere in behalf of the class in danger of being overreached.” See “The Right to Freedom of Contract,” Harvard Law Review 11:1 (1897): 56–58CrossRefGoogle Scholar, quotations at 57.

⁷⁴ Holden v. Hardy, 381, 397. Emphasis added. Joined by Chief Justice Fuller, Harlan, Gray, Shiras, White, and McKenna, Justice Brown ruled to uphold the Utah law in Holden. Only Justices Peckham and Brewer dissented. The greater intensity of manufacturing and mining labor under closer supervision by bosses than what had prevailed in artisanal or agricultural labor has been documented in numerous studies in the “new” labor history since the 1960s. E.g., Montgomery, David, Workers' Control in America: Studies in the History of Work, Technology, and Labor (New York: Cambridge University Press, 1979)Google Scholar.

⁷⁵ Holden v. Hardy, 392. Shaw quotation is from Commonwealth v. Alger, 7 Cush. 53, 81.

⁷⁶ Holden v. Hardy, 396. Nancy Woloch, A Class by Herself: Protective Laws for Women Workers, 1890s–1990s (Princeton, NJ: Princeton University Press, 2015), 43–45, briefly summarizes the main findings in Brown's opinion regarding the justification for protecting workers in particularly dangerous occupations, emphasizing how he found “free contract” in these industries often unequal. It does not discern how Brown connected measures for sustaining worker productivity in such industries, the vigor of the economy as a whole, and the public good.

⁷⁷ Holden v. Hardy 169 U.S. 366, 397. See also Katz, Claudio, “Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era,” Law and History Review 31 (2013): 275–310CrossRefGoogle Scholar.

⁷⁸ Lawton v. Steele, 152 U.S. 133 (1894). The case involved the constitutionality of an act of the legislature of the state of New York titled chapter 591, Laws N. Y. 1880, as amended by chapter 317, Laws N. Y. 1883, entitled “An act for the appointment of game and fish protectors.”

⁷⁹ Lawton v. Steele 152 U.S. 133 (1894). “The preservation of game and fish … has always been treated as within the proper domain of the police power, and laws limiting the season within which birds and wild animals may be killed or exposed for sale, and prescribing the time and manner in which fish may be caught, have been repeatedly upheld by the courts,” Brown stated. Justices Fuller, Field, and Brewer dissented on the grounds that through the destruction of the nets private property had been invaded without due process.

⁸⁰ Robert R. Glennon, Jr., “Justice Henry Billings Brown: Values in Tension,” University of Colorado Law Review 44 (197–73): 553–604, quotations at 572–73, 575. Glennon concludes that although Brown believed in the efficacy of competition, “he was generally willing to uphold legislation impinging on pure laissez faire principles.” On the high bench from 1890 to 1906, Brown wrote the majority opinion in Plessy v. Ferguson and later sided with the majority in Lochner v. New York. Urofsky, Melvyn, ed., The Supreme Court Justices: A Biographical Dictionary (New York: Garland, 1994)Google Scholar; for a revisionist view of Lochner, see Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993)Google Scholar.

⁸¹ Veblen, Thorstein, “Industrial and Pecuniary Employments,” Publications of the American Economic Association, 3rd Series, 2:1 (1901): 190–235Google Scholar.

⁸² For the two opposing iterations of “new liberalism,” see Furner, “Republican Tradition”; idem, “From ‘State Interference’ to the ‘Return to the Market’: The Rhetoric of Economic Regulation from the Old Gilded Age to the New,” 92–142. The reader should distinguish this iteration of statist liberalism from its later variant, New Deal liberalism, on the one hand, and also from state capitalism, in which the state essentially controls the investment function, on the other.

⁸³ For general treatments of progressive reform, see McGerr, Michael, A Fierce Discontent: Rise and Fall of the Progressive Movement in America, 1870–1920 (New York: Oxford University Press, 2005)Google Scholar; Painter, Nell Irvin, Standing at Armageddon: A Grassroots History of the Progressive Era (New York: W. W. Norton, 1987)Google Scholar.

⁸⁴ Sklar, Martin J., The Corporate Reconstruction of American Capitalism, 1890–1916 (New York: Cambridge University Press, 1988)CrossRefGoogle Scholar; Lustig, R. Jeffrey, Corporate Liberalism: Origins of Modern Political Theory, 1890-1920 (Berkeley: University of California Press, 1983)Google Scholar; Ernst, Daniel R., Lawyers Against Labor: From Individual Rights to Corporate Liberalism (Champaign: University of Illinois Press, 1995)Google Scholar.

⁸⁵ Pigou, A. C., Economics of Welfare, 4th ed. (1920: London: MacMillan, 1932), 463Google Scholar; Backhouse, Roger E. and Nishizawa, Tomotsu, eds., No Wealth But Life: Welfare Economics and the Welfare State in Britain, 1880–1945 (New York: Cambridge University Press, 2010)CrossRefGoogle Scholar. Earlier work had demonstrated from statistical studies that shortening the workday actually increased the productivity of the hours worked by better rested operatives. Chapman, S. J., “Hours of Labour,” The Economic Journal 19:75 (1909): 353–73CrossRefGoogle Scholar. Extended testimony on the subject before the United States Industrial Commission by numerous employers as well as workers, offered evidence that greater productivity in a miner's eight-hour day exceeded what had produced in a ten-hour day. Report of the Industrial Commission, Volume X, on the Relations and Conditions of Capital and Labor Employed in the Mining Industry: “The Mining Industries: Hours of Labor: The Utah 8-Hour Law” (Washington, DC: Government Printing Office, 1901), 75–77Google Scholar.

⁸⁶ Pigou, Economics of Welfare, 465. See also Tom Walker, “The Hours of Labour and the Problem of Social Cost,” http://www.disei.unifi.it/upload/sub/pubblicazioni/msb/vol_12_2011/walker2011.pdf (accessed Dec. 6, 2016).

⁸⁷ Following the Holden precedent, Missouri and Nevada passed eight-hour laws similar to Utah's for miners and smelter workers, Rhode Island mandated a ten-hour work day for street railway operators, and New York passed the ten-hour law for bakers that led in 1905 to the Lochner ruling. See Friedman and Ladinsky, “Social Change and the Law of Industrial Accidents,” 607.

⁸⁸ Morgan had contracted to work for ten hours a day as a smelter operator. His defense offered the Jacobs precedent and sharply contrasted its outcome with the definition of a public interest in Munn v. Illinois, drawing support from Cooley, Thomas McIntyre, A Treatise on the Limitation of Police Power in the United States (Boston: Little, Brown, 1868)Google Scholar and from Tiedeman, Constitutional Limitations.

⁸⁹ Forbath, Law and the Shaping of the American Labor Movement, passim; see also Urofsky, “State Courts and Protective Legislation during the Progressive Era.”

⁹⁰ In Bunting, the U.S. Supreme Court declined to “ascribe to the legislature an intent to disguise an illegal purpose” or to challenge its assertion of the necessity for the law. Bunting v. Oregon, 243 U.S. 426, 436–37.

⁹¹ West Coast Hotel Co. v. Parrish 300 US 379, 393.

⁹² West Coast Hotel Co. v. Parrish 300 US 379, 393–94, supporting the public interest argument, the court stated: “The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenceless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community. What these workers lose in wages the taxpayers are called upon to pay.” For the Holden quotation, see 16–17 above. Economist John Maurice Clark has made precisely this case a decade earlier in Social Control of Business (Chicago: University of Chicago Press, 1926)Google Scholar.

⁹³ We should also note that the Holden (and later Pigouvian) proclamation of a public interest in conserving workers’ health and energy as a protection for sustained economic growth had been eclipsed here by a recognition that any semblance of “free contract” in the new corporation-dominated industrial order required permitting, and in the case of labor organization legally promoting, collective action on both of the parties to bargaining. For the much longer story of the limits of New Deal employment regulation based on race, region, party, and gender, see Katznelson, Ira, Fear Itself: The New Deal and the Origins of Our Time (New York: Liveright, 2012)Google Scholar.

⁹⁴ For a concise account of the decline of organized labor, see Lichtenstein, Nelson, State of the Union: A Century of American Labor (revised and expanded edition: Princeton, NJ: Princeton University Press, 2013)Google Scholar. On the trajectory of rising poverty and inequality across nations, see Piketty, Thomas, Capitalism in the Twenty-First Century, trans. Goldhammer, Arthur (Cambridge, MA: Harvard University Press, 2014)CrossRefGoogle Scholar.