Weimar "ss1.05"

V

Like Weimar, the American state was in crisis from its inception,^[22] and at varying levels of intensity almost continuously during the first ninety years of its existence. Unlike Weimar, however, crises of the American state served only to strengthen, not to challenge, fidelity to constitutional government. This was as true at the founding as in the aftermath of the Civil War. It was true as well in the crisis of the American state at the time of Weimar. Each crisis had its own specific causes and legal and political solutions. Each forced legal theorists to elaborate a new and different dimension of constitutional government. The challenge to the American state at the time of Weimar was curiously like the challenge to Weimar, and responses to the challenge in both states implicated legal theory. Nevertheless, differences in history, in political and legal culture, caused different expressions of incapacity in each state and propelled legal theory along very different tracks.

The first crisis of the American state, in the 1780s, focused on the question of unity. It was impelled primarily by social and economic causes, and its resolution required a new conception of sovereignty, alien to eighteenth-century political theory. The second crisis, which came to a head in the Civil War, was impelled by the conflict over slavery. It focused on two issues that resolution of the first crisis had left open: the nature of citizenship in a federal union and the right of states to secede unilaterally from the Union. Resolution of the second crisis created a new conception of citizenship, engraved in the Fourteenth Amendment. The third crisis, which lasted from the Progressive Era through the New Deal, challenged the capacity of government to act “in the interests of its people” while preserving the “maintenance of individual liberty.” Resolution of the third crisis led to a transformation of the jurisprudence in which constitutional interpretation—indeed all legal interpretation—would be conducted.

The crisis of the American state at the founding took the form of a series of questions. What is union? Why must we have it? What political form should it take?^[23] These questions were, at first, forced on revolutionary America by military necessity, and the answers at first—the behavior of the Continental Congress as sovereign in all but name^[24]—were driven by this necessity. But military necessity would not last forever, and planning the frame of a postwar regime required allocating sovereignty between the central government and the governments of the thirteen former colonies, as well as defining the form each sovereign would take.

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Defining the form of sovereignty for the colonies was largely accomplished during 1776. By resolution of 15 May (six weeks before the Declaration of Independence) Congress called on the colonies to suppress the Crown's authority and to exercise “all the powers of government … under the authority of the people of the colonies.” The delegates of “the United States in Congress assembled” were clear from the start that all government in the United States—however it might work out in detail, whatever principles might animate it—would be under “the authority of the people.” It would be constitutional government. By the end of 1776, eight colonies had adopted new constitutions (the two corporate colonies, Rhode Island and Connecticut, were already republics); only Georgia, New York, and Vermont (the latter was not recognized by other states until the 1780s) delayed until 1777.^[25]

Congress accomplished an allocation of sovereignty in the Articles of Confederation, which it proposed for ratification by the now-constitutional governments of the states in 1778. Nothing was clearer in political theory at the time than that sovereignty could not be shared, that it had to be put either in a central government (in which case the states would be reduced to provinces) or in the states themselves (in which case the central government could at most be a confederation). Article II of the Articles of Confederation provides that “[e]ach State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Congress assembled.” Though embracing limitations on the states' “power, jurisdiction, and right,” the formulation is clear that their “sovereignty, freedom, and independence” remain unlimited. Since the limitations imposed by the Articles of Confederation were indeed significant,^[26] one might consider Article II's insistence that sovereignty was in the states a mere fiction, a way of accommodating a distribution of sovereignty between the central government and the states without compromising eighteenth-century political theory. Yet, despite the existence of substantial nationalist sentiment in the early 1780s,^[27] the Confederation did lack crucial attributes of sovereignty as it was understood in the eighteenth century,^[28] and it would be a mistake to underestimate the extent to which the notion of a unitary sovereign both expressed political valences and oriented them towards the states. The assembled Congress of the United States was, after all, an emergency committee of states united on the single project of winning independence from the Crown. When war ceased in 1781, so did the effective operation of Congress, and the general understanding that sovereignty reposed in the states had increasing practical effect.^[29]“What is truly remarkable about the Confederation,” writes Gordon Wood, “is the degree of union that was achieved.”^[30] But this union, as it turned out, was only a paper union, and by the middle eighties politicians and theorists had to return to the fundamental questions.

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The turn in sentiment was remarkable. A scant six years after Congress first met under the Articles of Confederation, in 1781, the Philadelphia Convention began a process of overturning the Confederation's allocation of sovereignty not, as it turned out, in favor of a total reallocation of sovereignty from the states to the central government, but of a wholly new concept of sovereignty—a federal concept, dividing sovereignty between the states and the central government.^[31] The argument for union was pragmatic. Revolutionaries who as representatives of popular sovereignty had assembled in committees and conventions to oppose the legislative tyranny of Parliament assembled once more against what they perceived to be the legislative tyrannies of the states.^[32] Splitting sovereignty between the states and a central government would dampen the ability of faction to capture state government for the purpose of self-aggrandizing legislation.^[33] The argument for union was also enhanced by an air of crisis that gripped the country starting around 1784. Historians have argued bitterly over the reality of the crisis,^[34] but recent evidence suggests that the years 1784 through 1790 witnessed “in depth and duration … the most serious economic setback suffered by Americans since the earliest days of colonial settlement.”^[35] Contributing to the depression were many factors—instability of the currency, overextension of credit, loss of British subsidies, British trade prohibitions introduced by the North-Fox ministry in 1782, among others. Some factors had dangerous implications for social order: Toward the end of 1783 the Continental Army demobilized, sending into civilian life tens of thousands of soldiers, most of whom were poor, if not when they entered the Army, then after years of receiving little or no pay from Congress. Between 80,000 and 100,000 Loyalists, among the most educated and productive in a colonial society of 2.6 million in 1775, left during and at the end of the Revolution. Depression caused and coincided with a dramatic commodity deflation that hampered the ability of debtors to pay off debts and taxpayers to pay taxes.^[36] Shays' Rebellion in Western Massachusetts between September 1786 and February 1787 was only the most pointed in an outbreak of back-country resistance to debt and tax collection.^[37] It was proof to the nationalists, if any was needed, of the urgency of the convention they were to join in Philadelphia on 14 May 1787.^[38]

But the efficient lineage of the Philadelphia Convention was neither social unrest nor economic depression, rather a series of conventions of various states to work out problems in common, ranging from regulating the economy to settling boundary disputes.^[39] It was the opaque status of these conventions under the Articles and resulting ambiguities in the process of ratification of the Constitution that set the stage for the second crisis of American constitutional government in the events leading up to the Civil War.

The conventions started during the period of the Continental Congress

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and continued during Confederation. The Mount Vernon Conference of 1785 between Maryland and Virginia set a pattern that would eventually lead the states to Philadelphia. The conference took a first step away from the Articles, by recommending an action that states had unanimously bound themselves not to take: The legislatures of both states ratified the compact without submitting it to Congress as required in Article VI. And the conference led irrepressibly to further steps in the evolution of national action. Ratifying the compact, the Virginia legislature authorized a meeting with other states at Annapolis in 1786 to discuss “such commercial regulations [as] may be necessary to their common interest and their permanent harmony.”^[40] Annapolis, in turn, unanimously adopted an “Address of the Annapolis Convention” calling on states to appoint commissioners to meet at Philadelphia to devise amendments to the Articles “and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State will effectually provide the same.”^[41] Congress responded to the call from Annapolis on 21 February 1787 with a resolution expressing “the opinion of Congress” that delegates assemble in Philadelphia “for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government and the preservation of the Union.”^[42] As matters turned out, the document proposed for ratification was a new constitution, not amendments to the Articles. It was nonetheless reported to Congress, which by the unanimous vote of twelve states present on 28 September transmitted it, not for the approval of state legislatures, which could hardly be expected to support a dramatic shift of power to the central government, but “to the several Legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof.”^[43] The Philadelphia Convention thus exceeded the call of Congress and in any case sidestepped the method of amendment required in Article XIII of the Articles.^[44]

However difficult and indirect the process by which the United States got its Constitution, the political class in the United States responded to the exigencies of the moment, in rebellion and war during the 1770s and in the economic, social, and especially moral crisis of the 1780s. The response of the 1770s, bound as it was by the theory of unitary sovereignty, was inadequate for tolerating the coexistence of a deeply entrenched state establishment with a continent-wide economy and the political vision of those who had fought against England as a nation and won. Only the theory of dual sovereignty developed in the late eighties was up to the task.

The second crisis of the American state—over the nature of citizenship in a federal union and the right of states to unilateral secession—began

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within the framework established by resolution of the first. The achievement of the first crisis—dual sovereignty and the foundation of its basic institutions—left many questions to be answered in political and legal struggle over succeeding generations: What commerce can states regulate once Congress has exercised its power to regulate interstate commerce?^[45] Can a state levy a tax upon the salary of an officer of the United States,^[46] or upon a bank chartered by the United States?^[47] Can the United States tax the salary of an officer of a state?^[48] These and a host of other questions could be, and were, resolved within the constitutional order set by the Framers. Even issues concerning the structure of the order itself could be resolved this way, though fraught with resistance and peril. Thus in 1816, in Martin v. Hunter's Lessee,^[49] the Supreme Court of the United States faced a defiant Virginia Court of Appeals, which upon appeal refused to obey the Supreme Court's mandate on the ground that Congress had no power under the Constitution to give the Supreme Court appellate jurisdiction over state court decisions.^[50] The Supreme Court held that Congress did have the power but, in order to avoid conflict, directed the second mandate to the trial court in which the suit had originally been instituted.^[51] The sustained conflict over nullification, in which state legislatures asserted the power to declare acts of Congress unconstitutional and, in John Calhoun's view, inoperative within the state,^[52] came closer to a question that could not be resolved in the ordinary way, challenging as it did the very nature of union. Nullification, however, danced close to the edge, not over. It did not drive states to challenge the fundamental legitimacy of the constitutional order;^[53] the political dynamics of nullification prevented that. The acts states sought to nullify either were capable of political adjustment, like a tariff, in which case nullification was simply another weapon in the ordinary clash of interests or, like the Alien and Sedition Acts, offended fundamental and widely held principles, in which case nullification triggered general and overwhelming disgust with the legislation. In neither case was nullification the scene of intense and unresolvable confrontation sufficient to challenge the legitimacy of the order.

Only two questions could not be answered within the order set by the Framers. First, can a state unilaterally secede from the union, or must secession, to be effective, be accompanied by the concurrence of other states in some constitutionally sanctioned procedure? Second, to which branch of the dual sovereign, the states or the federal government, do citizens owe their primary loyalty? And from this last question flows a series of others: Which branch of the dual sovereign has final say over citizenship? Are there two forms of citizenship, state and federal, or only one? If only one, which? If not just one, is it possible to be a citizen of a state but not of the United States? A citizen of the United States but not the citizen of a state?

These questions had been elided in the founding.^[54] Unlike the Articles of Confederation, the Constitution makes no mention of sovereignty. Unlike

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the Articles, it says nothing about “perpetual union” (Article XIII). It makes elaborate provision for the admission of new states by Congress (Article IV, Section 3), but not for secession. It says little about citizenship, other than implicit acknowledgment of the existence of state citizenship (in two clauses: Article III, Section 2; Article IV, Section 2) and federal citizenship (in Congress's power “[t]o establish an uniform Rule of Naturalization,” Article I, Section 8).

Citizenship and secession were one question really: the source of the authority of the Constitution itself. For if the Constitution obtains its authority from the states, then the states are the branch of the dual sovereign to which citizens owe undivided loyalty. Their loyalty to the federal government is derivative from the states' decision to ratify the Constitution. No event of national citizenship severed or compromised the bond of loyalty between states and citizens. No new spring of citizenship drowned out the old. Moreover, as there would be no national citizenship binding the citizens of a state directly to the union over the heads of state government, a state could reverse its decision to join the union without the consent or participation of other states. If, on the other hand, the Constitution gets its authority from the people assembled in convention—whether the people as a whole in Philadelphia or the people of each state in conventions called by state legislatures to ratify the work of Philadelphia—then citizens owe their primary loyalty to the federal government, and not to the states. Then the people assembled in convention for the purpose of creating the new national government replace the states as the source of citizenship and the goal towards which its affections bend. Then secession requires an expression of assent by the citizens of the nation as a whole.

The Constitution is plain enough that the source of its authority is the people assembled in convention. It is “WE the People of the United States” that ordains and establishes the Constitution. It is “the Conventions of nine States” that ratifies it, not state legislatures. Nevertheless, the silence of the Constitution on sovereignty, the nature of citizenship in a dual sovereignty, and secession provided sufficient ambiguity to permit those who were so inclined to argue that the source of the Constitution's authority was the states. This ambiguity was expressed as well in the process of ratification. The formulation in Congress's resolution to the states, transmitting the Constitution “to the several Legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof,” finessed the question.^[55] When the citizen's loyalty would be put to the test—a conflict squarely posing the issue of citizenship, a state claiming the power of unilateral secession—the question could be finessed no more.

Precisely these events occurred in the Supreme Court's 1857 decision in Dred Scott v. Sandford^[56] and in its aftermath leading up to the “secession winter” of 1860–61. Although the immediate issues it addressed were narrower,

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Dred Scott amounted to an attempt to resolve the issue of citizenship in a dual sovereignty. And the particular resolution the Court found gave comfort to those who would assert the claim of unilateral secession three years later in the wake of events the decision encouraged or impelled.

In his opinion for the Court,^[57] Chief Justice Roger Taney conceives of state and federal citizenship as coordinate. Each branch retains the power, fettered by the Constitution only, to choose its citizens, to specify their rights and obligations.^[58] The states get this power directly as sovereigns antedating the formation of the federal government. The only constraint is that whatever they decide about citizenship and citizens has effect only within their borders. But, says Taney, states can make anyone a citizen of the state, even aliens. Presumably (though Taney is silent on the subject) they can even make “negro slaves” or their descendants citizens, even when, as the Court holds, the Constitution forbids including them as citizens of the United States. The federal government, by contrast, gets this power only indirectly, by implication, since nowhere does the Constitution (as it stood in 1791) define or discuss citizenship of the United States, only the power of Congress to make a uniform rule of naturalization.

Taney's model of coordinate citizenship as he developed it in Dred Scott probably goes as far as it is possible to go within the constitutional order set by the Framers in answering the questions of citizenship in a dual sovereign, and Taney's model does answer most of the questions. It says that each branch of the dual sovereign makes citizens, that each makes them independently of the other, and that it is possible to be a citizen of one branch only. But the model says nothing about primary loyalty, and without a position on primary loyalty a position on secession is impossible. The Framers had met every challenge to dual sovereignty posed by eighteenth-century political theory but this, and Taney, sticking close to their structure, failed as well.

Nor did the immediate issues in Dred Scott push Taney beyond the Framers' structure, assuming he would have been willing or able to go: Did the Constitution mean to include “negro slaves” or their descendants as citizens of the United States? Did the Constitution permit the Missouri Compromise of 1820, which forbade slavery north of the latitude 36? 30? north in the Louisiana Territory? Either the Framers intended to include “negro slaves” and their descendants as citizens of the United States or they did not. Either they contemplated congressional control over the citizenship of states that would be formed out of the territories or they did not. Taney answered both questions in the negative. Though controversial, his answers were plausible within the doctrine of coordinate citizenship, which was a plausible model of the state of the Framers' understanding of citizenship.

Taney and a majority of justices on the Court believed that resolution of these issues—especially the constitutionality of congressional control over

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slavery in the territories—would defuse the political crisis that had been brewing since the repeal of the Missouri Compromise in the Kansas-Nebraska Act of 1854.^[59] Instead, it produced a firestorm of controversy. No political issue was more important than the fight between slavery and freedom for control of the territories, hence the future character of the Union. The political system had struggled with this issue since before the founding, and the thought that it was resolvable by an appeal to the constitutional order of the Framers was simply wrong. Dred Scott's unsuccessful attempt to wrestle the politics of slavery into legal form may not have been the fuel powering events to secession, but it certainly was a lit match.^[60]

The Constitution had run out. The constitutional order of the Framers failed to contain the furor over slavery. “The nation's weakness in the secession winter,” note Harold Hyman and William Wiecek, “and lawyers' inability to direct events into pacific channels, had caused a depression of spirit among leading spokesmen of the profession.”^[61] The secession winter witnessed the gravest crisis in American constitutional government. It was the moment when even supporters of the Constitution lost “constitutional faith,”^[62] the moment when the American republic came closest to Weimar.

Far from disproving the thesis that crisis has always strengthened American constitutionalism, the Civil War is its most compelling example. War brought not further disillusion, but reconstruction of a belief in constitutional government. The reason ironically lay in the war itself: the Constitution responded to the demands war made on it with a flowering of methods yet with little damage to the fundamental structure.^[63] The American habit of vigorous and widespread public engagement in constitutional discourse fully recovered by 1862, and law rapidly resumed the position of respect it had enjoyed in the first half-century of the Republic.^[64]

Events readily disposed of the holdings in Dred Scott. In June 1862 Congress prohibited slavery in the territories, and by December 1865 twentyseven states (including eleven reconstructed states of thirteen seceding) had ratified the Thirteenth Amendment, abolishing the condition that had provided the basis in Dred Scott for excluding “negro slaves” and their descendants from national citizenship.^[65] Events also effectively answered the broader questions that were perplexing the Republic about dual sovereignty. The surrender at Appomattox established that states do not have the power of unilateral secession and that citizens owe primary loyalty to the nation. But the conclusion of war and the ratification of the Thirteenth Amendment left Taney's doctrine of coordinate citizenship substantially intact, since the doctrine had said nothing about primary loyalty in the first place. Despite the opinion of some that Appomattox and Gettysburg killed off both slavery and state sovereignty,^[66] reality was far more complex and difficult.

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Making “negro slaves” into citizens of the nation had no obvious or immediate impact on their status as citizens of states.^[67] Emancipation by itself failed to guarantee former slaves the freedoms enjoyed by other citizens. Even if the Thirteenth Amendment could be construed to require states to make emancipated slaves citizens, there was substantial disagreement whether it would require states to make them equal citizens. There was substantial agreement that the enforcement clause of the Thirteenth Amendment allowed Congress to ensure that whatever inequalities did exist not re-create the incidents of slavery—that was how the enforcement clause had been sold to Southern Democrats who were considering the Thirteenth Amendment for ratification^[68]—but little agreement about which disabilities, beyond a core, could be considered incidents of slavery. And the “Black Codes” of 1865 did visit a host of disabilities upon emancipated slaves. On 19 April 1866, over President Andrew Johnson's veto, Congress enacted the first of several Civil Rights Acts, removing some of these disabilities through the enforcement power of the Thirteenth Amendment.^[69] However, even supporters of the substance of the legislation, like Representative John Bingham, believed that Congress lacked the power to reach as deeply as it had into the police power of the states to determine the powers and disabilities of their citizens.^[70] As a result, on 30 April the Joint Committee on Reconstruction proposed what in 1868 became the Fourteenth Amendment.

The Fourteenth Amendment put an end to the possibility that emancipated slaves could be citizens of the nation but not of a state, or citizens of a state burdened by unequal disabilities. The amendment accomplished this revolution in two momentous steps: It first overturned Taney's doctrine of coordinate citizenship, replacing it with a doctrine of unified citizenship instead. The first clause of Section 1 creates a national citizenship open to “[a]ll persons born or naturalized in the United States” and makes them “citizens … of the State wherein they reside.” Taken with the surrender at Appomattox, the amendment effectively resolves the dilemma that dual sovereignty presented to the eighteenth-century conception of citizenship. Henceforth all citizens of the nation were to be citizens of states, and citizens of states, citizens of the nation. The Fourteenth Amendment clarifies what the Thirteenth left obscure: Emancipated slaves, by virtue of their citizenship in the nation, are “citizens … of the State wherein they reside.” By itself, however, unified citizenship could not stop states from using state citizenship as an instrument for creating two classes of citizens. After all, the Fourteenth Amendment does not abolish state citizenship;^[71] it simply unifies the criteria of membership, and, without more, states could have claimed that the power to create unequal classes of citizens remained undisturbed. Hence the second step, which follows immediately upon the first in the text

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of the amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws.” At the least, the prohibition against states making or enforcing laws that abridge the privileges or immunities of citizens of the United States stops states from burdening emancipated slaves as a class with unequal disabilities and supplies a clear retrospective justification for the first Civil Rights Act. The doctrine of unified citizenship, coupled with the Equal Protection Clause, created a powerful, flexible instrument for tracking down the incidents of slavery, expansively and dynamically construed, to follow wherever in the future these incidents might lead, even beyond the provisions of the first Civil Rights Act.^[72]

Just as resolution of the first crisis of American constitutional governance in the 1780s required transformation in the understanding of sovereignty, resolution of the crisis of the 1860s invoked a new conception of citizenship. The unified citizen of the Fourteenth Amendment has a relationship to the sovereign different from that of any citizen before. Citizenship had always meant the right to participate in the political community or membership in the collectivity constituting the sovereign. The unified citizen, in contrast, has rights against the political community, or the right to be free from disabilities that the collectivity constituting the sovereign might otherwise impose. The Fourteenth Amendment dissociates citizenship from sovereignty altogether. It resolves the dilemma of citizenship in a dual sovereign this way: It sets citizenship as a limitation on sovereignty—a principle of antisovereignty, an independent, competing source of powers and disabilities. Far from conceding that eighteenth-century political theory had been right all along—that dual sovereignty is impossible—unified citizenship takes the revolution in political thinking one step further, revising the very place of sovereignty in constitutional governance.

The Fourteenth Amendment also harbored an important ambiguity, and this ambiguity could not be wholly resolved within the new constitutional order set by its drafters. The question was whether the Equal Protection Clause applies only to emancipated slaves as a class or, more broadly, to other classes. If more broadly, then states are prohibited from dividing citizens into classes, not just from making one of them slaves. Then the prohibited class divisions and prohibited reasons for making the divisions would presumably be determined by the same dynamic approach the Fourteenth Amendment uses to track incidents of slavery. If, however, the Equal Protection Clause applies only to emancipated slaves, then states may do whatever their exercise of the police power leads them to do, so long as they do not re-create the incidents of slavery, dynamically construed. And there are a host of intermediate positions, almost all taken by one court or another,

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one commentator or another, since adoption of the Fourteenth Amendment. It was clear that the framers of the Fourteenth Amendment intended a dynamic approach to eliminating the vestiges of slavery. But did they also intend a dynamic approach to eliminating unequal burdens in general? Could the dynamic approach be restricted to “negro slaves” and their descendants, or were all citizens—the unified citizens of the Fourteenth Amendment—to be its beneficiaries as well?

The Supreme Court's initial resolution of this ambiguity, in the Slaughter-House Cases of 1873, was that the Equal Protection Clause applies only to the privileges of “negroes as a class,” not to classes of citizens in general.^[73] But this resolution was inherently unstable. The decision was by the slimmest of majorities. Three justices (of nine) joined Justice Stephen Field in dissent, urging the broadest possible interpretation of the ban on unequal burdening. “What [Article IV, Section 2 of the Constitution] did for the protection of the citizens of one state against hostile and discriminating legislation of other states,” wrote Justice Field, “the 14th Amendment does for the protection of every citizen of the United States against hostile and discriminating legislation, against him in favor of others whether they reside in the same or in different states.”^[74] Further, the Thirteenth Amendment does not restrict the prohibition against slavery to one class of citizens, to “negroes as a class.” Any class can claim its benefit. Coupling the Fourteenth Amendment's dynamic approach to defining the protections accorded by the Thirteenth Amendment with the Thirteenth's capacious identification of the beneficiaries of those protections was all but inevitable. Finally, the Fourteenth Amendment also forbids states from depriving any person of life, liberty, or property without due process of law. And the Due Process Clause clearly applies to all persons, as individuals, not simply to unduly burdened classes or only to “negroes as a class.” The dynamic approach that the Fourteenth Amendment applies to tracking the incidents of slavery could be applied to due process and equal protection as well.

The instability inherent in the resolution in the Slaughter-House Cases at first affected both due process and equal protection. Thirteen years after that decision, in 1886,^[75] the Supreme Court extended equal protection to alien “subjects of the Emperor of China” who were arbitrarily denied permits to operate laundries in San Francisco: “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. … These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. …”^[76] But beyond implicit rejection of the narrow position in the Slaughter-House Cases, the Supreme Court offered no guidance as to which classes and what reasons would invalidate state provisions, and Plessy v. Ferguson^[77] in 1896 put an end to further attempts to broaden equal protection for at least a generation.^[78] The real energy in

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the wake of the Slaughter-House Cases focused on due process, not on equal protection.

It was a train of developments in due process and the political consequences of these developments that eventually led, in the 1930s, to a third crisis in constitutional governance, resolution of which would end in a reworking of the entire jurisprudential framework of constitutional governance. In 1877, four years after the decision in the Slaughter-House Cases, the Supreme Court in Munn v. Illinois upheld the power of Illinois to fix by law the maximum charges for the storage of grain in certain warehouses against a challenge that statutes regulating the use of private property necessarily deprive an owner of his property without due process.^[79] Over dissents by Justices Field and William Strong, the Court held that states have the power to regulate property “affected with a public interest,” thus cabining the police power of states within strict, yet reasonably capacious limits. But due process, dynamically construed, was to have other incidents that would further restrict the states' police power. In 1890 the Court condemned a Minnesota statute making rates established by a railroad commission final and conclusive as a taking of the railroads' property without due process.^[80] The reasonableness of the rates, said the Court, was a question for judicial determination, requiring due process of law. In 1894 the Court struck down a statute that prohibited any person from effecting insurance on property in the state with companies not admitted to do business there, on the ground that the right of citizens to earn a livelihood by any lawful calling is a “liberty” protected by due process.^[81] Yet, by far the most important assertion of due process limits on the states' exercise of their police power was Lochner v. New York^[82] in 1905. It was Lochner, like Dred Scott before it, that through a chain of events would transform the ambiguities of the Fourteenth Amendment into a crisis of constitutional governance. Unlike Dred Scott, however, the political conditions precipitating the crisis took a quarter-century to develop.

Over dissents by Justices Oliver Wendell Holmes and John Marshall Harlan (who were joined by Justices Edward White and William Day), Lochner held unconstitutional a New York statute of the Progressive Era (1897) making it unlawful for bakers or confectioners to require or permit employees to work more than sixty hours per week or ten hours per day, on the ground that the statute deprives both employers and employees of a “liberty” to contract protected by due process. The Court rejected as unreasonable a legislative finding that the statute was necessary to protect the health of individuals who are following the trade of a baker, hence within the state's police power. Lochner thus heralded an era in which the Court was prepared to review legislative judgments about the propriety of a state's exercise of the police power, thus drawing lines about the police power far tighter than any before.^[83]

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The usual story in American constitutional history is that Lochner effectively disabled the states and the federal government from responding to the regulatory demands of a growing industrial economy. However, the aftermath of Lochner reveals considerable flexibility on the part of the Court towards the states' regulatory efforts. Thus, in Muller v. Oregon,^[84] three years after Lochner, the Court rejected a due process challenge to an Oregon statute forbidding the employment of women “in any mechanical establishment, or factory, or laundry” for more than ten hours per day. Louis Brandeis's famous “factual” brief persuaded the Court that there was a compelling legislative basis for the restriction, unlike the restriction in Lochner. In 1917, in Bunting v. Oregon,^[85] the Court even seemed to overrule Lochner sub silentio, holding that the Court would accept the judgment of a state legislature and supreme court that a statute forbidding the employment of any person in any mill, factory, or manufacturing establishment more than ten hours per day and providing payment for overtime at a higher rate was necessary for the preservation of the health of employees in these industries. The Court also decided cases against the regulatory power of the states. Two years before Bunting, for example, the Court struck down a Kansas statute making it a misdemeanor for employers to require employees to execute a “yellow-dog contract”—a promise not to join a union—on Lochner grounds.^[86] In the two decades after Lochner, the Court showed a willingness to regulate the states' exercise of the police power on a case-by-case basis. It was not prepared to narrow the police power to activities, such as common carriage and government contracting, that are clearly in the public realm.

Nevertheless, in 1923, the Court began interpreting the police power more restrictively. In Adkins v. Children's Hospital,^[87] the Court held that a law empowering a commission to fix minimum wages for women and children in the District of Columbia violates Fifth Amendment due process. The Court distinguished Muller v. Oregon as approving a statute regulating the hours of women, not their wage. Adkins accompanied a parallel retreat from the formula of Munn v. Illinois. Prior to Adkins the Court had sustained price regulation in fire insurance^[88] and rental housing^[89] on the ground that those activities are “affected with a public interest.” In Wolff v. Industrial Court^[90] in 1923, and in a series of decisions running through the early 1930s,^[91] the Court uniformly held, when the issue arose, that activities regulated by the states were not “affected with a public interest.”

The image of a Court implacably opposed to an expansive police power is thus accurate only for the period after 1923, not 1905, when Lochner was decided. Yet when the Great Depression struck, the extreme version of Lochner was ascendant, sharply constraining the regulatory powers of both the states and the federal government. The powers of the federal government were constrained as well by a contemporary understanding, rooted

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more deeply than the extreme version of Lochner in constitutional history and doctrine, of the allocation of powers in a federal system and the separation of powers within the federal government. These constraints focused on the power of Congress to regulate interstate, but not local, commerce, and the doctrine forbidding Congress to delegate legislative authority to another branch of government or to private groups. These other constraints led the Court to invalidate a series of enactments designed to meet the emergency caused by the Great Depression—gross domestic product halved and a quarter of the workforce unemployed.^[92]

The ascendancy of the extreme version of Lochner was to be brief, ending three years after the Great Depression began and two years after the Roosevelt administration took office.^[93] In an exceptional moment in American legal history, the groundwork for change was prepared by legal theorists who wanted states and the federal government to regulate economic activity more aggressively. These theorists—the American legal realists—began to undermine the jurisprudential framework on which Lochner and Munn depended immediately after Lochner, and certainly well before the Great Depression made political pressure against Lochner irresistible. Lochner's jurisprudential framework had two principle elements; each had to be dealt with.

First, Lochner required that legal rules sustaining private economic activity have a source other than political fiat. Otherwise all matters would be “affected with a public interest” and subject to regulation, free of due process. If private law cannot trace its source to something other than ordinary politics, then the state that gave rules in the first place can alter them or take them away. Then immutable private law rules cease to function as a bulwark against regulatory incursion. So, the early realists set about attacking formalist or naturalist derivations of private law, all to prove that politics and only politics had a hand in creating it. The rather neutral-sounding rule requiring consideration in contracts was no different in this estimation than the quite specific Louisiana law at issue in the Slaughter-House Cases, granting a twenty-five-year monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company “to maintain slaughterhouses, landings for cattle and stockyards.” Both are naked political regulation of private economic activity. The rule of consideration is no more immune from political process than the Crescent City Live-Stock Landing and Slaughter-House Company.

Second, Lochner required the enforcement of legal rules to be transparent. If not, then judges could smuggle their own politics into decisions, and the vulnerability of private law to politics would shift from the legislative to the judicial arena, and, once again, states could exercise their police power unfettered by due process. Again, realists set to work challenging the capacity of judges (or anyone else) to follow rules unembarrassed by politics

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or temperament or to tell whether a fellow judge is following rules “correctly.” Not only is the content of rules political, but the process by which the content impresses itself on single cases subjects rules to microscopic revision according to further politics and personal inclination. There is no escaping political regulation or regulatory administration in every branch of law, even those formally labeled “private.” Realists carried out this twopronged attack on Lochner relentlessly in the decades following 1905. Justice Holmes, who was many things but surely also a protorealist, dissented in Lochner. Holmes's theoretical work predates Lochner, and some of the work of the anti-Lochner realists was done, not in response to Lochner, but as an aid to the passage of the sort of legislation that was invalidated by Lochner. But Lochner turned Holmes and his allies from theorists into prophets, and there is no question that the movement Holmes helped form and represented picked up terrific steam once Lochner was decided.

The fruit of their labors, once depression hit, was a theoretical apparatus that could accommodate the regulatory demands—moral, political, and economic—triggered by the Great Depression against the objection of due process. The third crisis in American constitutional governance was resolved by a transformation of the jurisprudence in which constitutional interpretation—indeed all legal interpretation—would be conducted. Unlike the first two, the third crisis resulted in no new amendments to the Constitution. It developed no new structure or concept of constitutional governance. It did, however, more profoundly than they, affect the shape of the union and the texture of law in general.

The Court hinted at change in Home Building and Loan Association v. Blaisdell,^[94] decided in January 1934. Blaisdell upheld a Minnesota law declaring a limited moratorium on mortgage payments against a challenge that the law violated Article 1, section 10 of the Constitution, impairing the obligation of contract. The Court justified the law as an appropriate “exercise of the reserved power of the state to protect the vital interests of the community,”^[95] triggered by economic emergency. Chief Justice Charles Evans Hughes wrote:^[96]

[T]here has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. … Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved, and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected; and that the question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends.

The Chief Justice added a brief but portentous statement: “What has been said on that point [the contract clause] is also applicable to the contention

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presented under the due process clause.”^[97] That was the hint. What the Court meant by the hint became clear two months later, in Nebbia v. New York.^[98]

In Nebbia, the Court upheld against due process challenge a law empowering New York's Milk Control Board “to fix minimum and maximum … retail prices to be charged by … stores to consumers for consumption off the premises where sold.” The Court accepted the New York legislature's justification of the law as a health measure (producers failing to receive a reasonable return relax their vigilance against contamination) and as a scheme to ensure the prosperity of a “paramount industry of the state.”^[99] But the Court was not returning to a more relaxed version of Lochner, or to Munn v. Illinois. Justice Owen Roberts announced a radical departure in the Court's due process jurisprudence:^[100]

The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects State action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.

No longer must the state or federal government show that the matter regulated is “affected with a public interest.” No longer need they persuade the Court that the regulation is a bona fide exercise of the police power. All due process requires is that the regulation be for the “public welfare” however the states or federal government choose to define it, that the regulation not be “unreasonable, arbitrary, or capricious,” and that the means selected “have a real and substantial relation to the object sought to be attained.” Not only was the extreme version of Lochner dead but also the flexible version, and even the capacious formula of Munn v. Illinois.

After Nebbia, the due process rights of the unified citizen of the Fourteenth Amendment would never again be an obstacle to the states or the federal government enacting laws in the interests of the people.^[101] The Roosevelt administration and Congress were free to craft whatever schemes they saw fit, consistent with other provisions of the Constitution, so long as they were for the public welfare and consistent with the “real and substantial relation” test of Nebbia.

Historians have debated whether Nebbia was the turning point in the Court's stance towards the New Deal or whether the real change occurred three years later, in West Coast Hotel Co. v. Parrish.^[102] After all, Parrish overruled Adkins, and the Court was far friendlier to New Deal programs after Parrish than it had been between Nebbia and Parrish. Parrish was handed down on 29 March 1937, just seven weeks after the Roosevelt administration unveiled its Court-packing plan on 5 February. The thought, which has achieved the

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status of myth in American scholarship, is that the Court changed course starting with Parrish, not Nebbia, in order to forestall the Court-packing plan. Recent scholarship, however, has debunked the myth.^[103]

What is at stake is the character of the Court as a legal or as a political institution. If the Court responds to short-term political pressures, then it is a political institution like any other, having no greater claim to make legal decisions than Congress or the Executive, and certainly less when the judgments of the Court conflict with the desires of the democratic branches of government. The Court can legitimately make undemocratic decisions only if constitutional law is an autonomous discipline with its own practices and logic. If Blaisdell and Nebbia are the key decisions, then the source of the Court's constitutional revolution was not political pressure but the autonomous discipline of law. If Parrish is key, then the case can be made that the Court is a political institution responding to ordinary political pressures and illegitimately resisted the democratic will of the state legislatures and Congress during the First New Deal.

To hold that Blaisdell and Nebbia are key and that the Court transformed the meaning of unified citizenship under the Fifth and Fourteenth Amendments as a consequence of autonomous legal development is not to say that the Court was immune to politics of any sort whatsoever; it is to say only that the Court was not responding to ordinary political pressure. The Court was responding to politics of a very different sort—the politics of lawyers using the practices and logic of law to shape legal development.

Although Nebbia deprived due process of its role constraining exercise of the police power, due process was to play a significant role in the era following the Second World War. The spirit of Lochner has haunted American constitutional jurisprudence, in other guises, to this day.^[104] The most significant role of due process in the post-Lochner era has been to constrain the government, not in pursuit of the public welfare, but in the methods by which that pursuit is carried on. Due process changed from a limitation on programs to a limitation on the implementation of programs. Unified citizenship was no longer a bar to government action, but a source of rights, both procedural and substantive, to ensure the fairness and integrity of government action. The story of the subjection of the operations of an expanded government to due process takes us into contemporary times.