Hovenkamp on Morals Regulation and the Classical American State

Herbert J. Hovenkamp, University of Iowa College of Law, has posted The Classical American State and the Regulation of Morals.  Here is the abstract:

The United States has a strong tradition of state regulation that stretches back to the Commonwealth ideal of Revolutionary times and grew steadily throughout the nineteenth century. But regulation also had more than its share of critics. A core principle of Jacksonian democracy was that too much regulation was for the benefit of special interests, mainly wealthier and propertied classes. The ratification of the Fourteenth Amendment after the Civil War provided the lever that laissez faire legal writers used to make a more coherent Constitutional case against increasing regulation. How much they actually succeeded has always been subject to dispute. Only a small portion of regulations were actually struck down by the courts on substantive due process grounds. But looking at sheer numbers hardly tells the story. The provisions that were struck down went to the heart of emerging class conflicts, particularly capitalist-employee relationships, including laws that established minimum wages or regulated working conditions. In general, if the courts saw a regulation as legitimately addressing a subject of “health, safety or morals” they let it stand. However, if they viewed it as an attempt to alter the balance between social classes, they were much more likely to strike it down.

The ideology of regulation’s critics shifted 180 degrees over the course of the nineteenth century. In the 1820s and 1830s the principal beneficiaries of regulation were thought to be the established classes who stood to gain from regulation that protected their investment. The loose affiliation of diverse outsiders that constituted Jacksonian democracy largely saw freedom from economic regulation as a device for opening up markets. By contrast, regulation of health, safety and morals remained relatively uncontroversial. Increasingly after the Gilded Age the rhetoric of regulation began to point at American business as the culprit in need of regulation, and laborers and to a lesser extent consumers as its beneficiaries. As a result the task of defending greater regulation fell to the Progressive coalition, while the more propertied classes tended to oppose it. Once again, however, Progressives as a group remained quite willing and even enthusiastic to regulate health, safety, and morals.

The great legal treatise writers of the Gilded Age – Thomas M. Cooley, John Dillon, Christopher Tiedeman, and later Ernst Freund – perpetuated these views. While they favored severe restrictions on government control of the economy generally, they consistently made exceptions for economic regulations that legitimately supported the state’s oversight of health, safety and morals. For example, they approved of decisions that permitted distilleries that were lawful when erected to be shut down without compensation, the regulation to oblivion of lotteries that were lawful when created, or laws that reduced the hours of labor by forcing businesses to close on Sunday even as the courts were striking down more general ten hours laws. In their famous “Brandeis Brief” in Muller v. Oregon (1908), which upheld a ten-hour law for women, Louis Brandeis and Josephine Goldmark were able to take advantage of this bifurcation by organizing their brief’s concerns around the classical exceptions for health, safety and morals.