Sunday, June 8, 2008

Hughes at Elmira

Every year I devote one class in my legal history course to Charles Evans Hughes’s defense of the Public Service Commissions Act at Elmira, New York, on May 3, 1907. It was a dramatic moment in the administration of the corporation lawyer turned reform governor. Hughes had gone over the heads of New York's legislators and built popular support for the measure with a series of addresses before local chambers of commerce. The address at Elmira promised to be particularly dramatic. Hughes arrived in the “Queen City of the Southern Tier” several hours after losing a fiercely contested vote in the state senate to oust the superintendent of insurance. His speech that evening would be his first public statement since the setback, and he would be proceeded on the program by a formidable opponent, John B. Stanchfield, an active Democrat, an able trial lawyer, and a frequent counselor of New York's railroads.

Hughes's visit was, in the judgment of a local newspaperman, “one of the most notable public events in the history of Elmira.” A local company of the state militia accompanied Hughes from event to event until at last he arrived at the Lyceum Theater, “prettily decorated with American flags, which appeared in profusion upon the stage,” boxes, loges and balconies. An audience of over 2,000 endured a series of reports and paeans to Elmira’s manufacturers until at last Stanchfield rose. “I stand before you with no man’s retainer in my pocket,” the railroad lawyer proclaimed before launching into a vigorous attack on Hughes's bill. “I represent no corporation or combination of men, but appear simply as a citizen interested in the growth and prosperity of Elmira.”

In response, Hughes discarded his prepared remarks and leveled Stanchfield with a devastating reply. “In distinction from my learned friend, I am here under a retainer,” he declared. “I am here retained by the people of the State of New York, to see that justice is done . . . . I stand for the people of the State of New York against extortion, against favoritism, against financial scandal, and against everything that goes to corrupt our politics by interference with the freedom of our Legislature and administration. I stand for honest government and effective regulation by the State of public-service corporations.”

The class clarifies several matters for my students. First, it provides an occasion to examine what Herbert Croly called “the most complete existing type” of commission government in the progressive era, New York's public utilities commission. Second, Hughes’s inability to oust the insurance superintendent makes clear just how far the state’s officialdom was from the “responsible executive” of Woodrow Wilson’s “Study of Administration.” Third, students see that corporation lawyers like Hughes often preferred Good Administration to Corrupt Legislation (depicted at right by the painter Elihu Vedder). Fourth, students who otherwise encounter Hughes only as an opponent of the New Deal get to see him as a nationally recognized reformer, if something less than a transatlantic “new liberal.”

But Hughes at Elmira is also part of a puzzle in a legal history course like mine, organized around the emergence and consolidation of political regimes in twentieth-century America. A recurring issue is the extent to which administrative agencies were free from the second-guessing of a reviewing court in their determination of factual matters. Hughes himself stressed the importance of the question. “An unscrupulous administrator might be tempted to say, ‘Let me find the facts for the people of my country, and I care little who lays down the general principles,’” he told the lawyers of the Federal Bar Association in 1931.

At Elmira, Hughes reported the demand of railroad executives that his bill be amended to give them “a chance to go from the commission to the courts.” His response sounded like a blanket endorsement of bureaucratic autonomy: “I tell you, ladies and gentlemen, no more insidious assault could be made upon the independence and esteem of the judiciary than to burden it with these questions of administration . . . . [I]t would swamp your courts with administrative burdens and expose them to the fire of public criticism. . . . You must have administration, and you must have administration by administrative officers.”

Well and good, until the day, several weeks later in the course, we encounter Chief Justice Hughes requiring de novo review of “jurisdictional” and “constitutional facts” in the landmark decisions Crowell v. Benson (1932) and St. Joseph’s Stock Yards Co. v. United States (1936). Had Hughes changed his mind in the intervening decades or were the positions of Governor Hughes and Chief Justice Hughes somehow consistent?

Not having a good answer to that question myself, I decided to put it to my students on this year's exam. I was surprised and impressed with what they came up with.

My students, it seems, were more careful readers than their professor. It turns out that at Elmira Hughes qualified his call for “administration by administrative officers.” “When . . . the constitutional right to hold property and not to be deprived of it without due process of law is involved,” he explained, “when, under the guise of regulation or authority to supervise railroad management, there is an assumption of arbitrary power not related to public convenience; when there is a real judicial question–let the courts have it and every good citizen will stand aside and hope to see it decided fairly and with even-handed justice.” "Matters of detail,” in contrast, had to be left to the commission.

But how did Hughes distinguish between “matters of detail” and the “real judicial question[s]” he would “let the courts have”? The best answers made one of those unexpected connections that occasionally enliven the grading of exams. Hughes, these students announced, was “a Fullerian.” That is, Hughes, like Lon Fuller in his famous article, “The Form and Limits of Adjudication,” believed that adjudicators should limit themselves to disputes in which the parties themselves could be trusted to provide the “proofs and reasoned arguments” needed to resolve them. For example, the top student wrote that in Crowell, “Hughes makes clear that facts which touch upon . . . ‘the relation of master and servant’--a clear common-law contract reference--are for judges, not agencies to decide.” To be sure, Hughes and Fuller drew the line between matters susceptible to “reasoned argument” and polycentric matters of policy very differently, but that just shows that this distinction, like every other legal concept, has a history of its own.

I’d like to take credit for putting Fuller into my students’ intellectual toolkit, and in fact I did include a note on “Form and Limits” in a unit on the birth of the juvenile court. I suspect, though, that my colleague Lisa Heinzerling deserves the credit, as Fuller's article plays a major role in the first-year course she taught to many of my students, from a book written with Mark Tushnet.