1. Burgess (1923), p. 26.

2. See Crick (1959), pp. 26-29.

3. E. L. Godkin (1831-1902) was founder and editor of the Nation, a leading intellectual weekly in the late nineteenth century. Under Godkin's direction, the Nation held an unswerving allegiance to the principles of laissez-faire, sound currency, free trade, civil service reform, and anti-imperialism. See Grimes (1953), especially pp. v-vi, 13-36 (quoting Godkin's editorials on these subjects). Godkin is sometimes thought of as an English liberal. However, as Spencer's career illustrates, the beliefs of late nineteenth-century American conservatives were nearly identical to those of middle nineteenth-century English liberals.

4. Henry Adams (1838-1918) was a prominent conservative historian and social critic. Although he was far less concerned with laissez-faire economics than were his counterparts, he actively supported civil service and tariff reform, two major concerns of conservative intellectuals, who tended to be political Mugwumps. Furthermore, Adams frequently argued that citizens should not rely on the government to do anything and, at least in the late nineteenth century, believed that the only economic reform the country needed was a return to honest government. H. Adams (1918), p. 500; H. Adams (1968), p. 185; H. Adams (1958), pp. 326-31; H. Adams (1930), p. 357.

5. Thomas Cooley (1824-1898) was a professor of law at the University of Michigan, a judge on the Michigan Supreme Court, and the first chairman of the Interstate Commerce Commission. Cooley is best known for his Constitutional Limitations, first published in 1871; that work was considered the standard authority on constitutional law in the late nineteenth and early twentieth centuries. Although scholars have questioned the older view of Cooley as an apologist for the rights of business enterprises, his works were frequently cited as establishing that the due process clause of the Fourteenth Amendment protected economic freedoms.

6. Christopher Tiedeman (1857-1903) was the author of several prominent treatises and a professor of law at the University of Missouri, the University of the City of New York, and the University of Buffalo. Tiedeman's most influential work, Limitations of Police Power, first published in 1886, argued that the Constitution limited the powers of government to those consistent with the Latin maxim, sic utere tuo, ut alienum non laedas (so use your own as not to injure another). See Tiedeman (1886), p. 2.

7. John Randolph Tucker (1823-1899) was a professor of law at Washington and Lee University, a six-term congressman who chaired the House Judiciary Committee, a prominent lawyer who numbered Jefferson Davis as one of his clients, and the author of a well-known constitutional law treatise. In The Constitution of the United States, Tucker argued that legislative power was limited by Herbert Spencer's social Darwinist principles of political economy. See Tucker (1899a), pp. 24, 45.

8. David Brewer (1837-1910) was one of the first Supreme Court justices to claim that maximum-hours laws violated the Constitution. See Holden v. Hardy, 169 U.S. 366 (1898); Adkin v. Kansas, 191 U.S. 207 (1903). Brewer's attitude toward economic regulations was best expressed in Budd v. New York, 143 U.S. 517, 551 (1892) when he declared that "the paternal theory of government is to me odious." See generally Rossiter (1962), p. 149; Gainer (1965); Curtis (1986), p. 191.

9. John Marshall Harlan (1833-1911) is rarely included in discussions of late nineteenth-century conservatism because of the support he gave to black civil rights in the Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896). However, Harlan's status as a defender of the constitutional status of private property is second to none. Harlan wrote several major court opinions that struck down governmental economic regulations as violations of due process. See Coppage v. Kansas, 236 U.S. 1 (1915); Adair v. United States, 208 U.S. 161 (1908); Chicago, Burlington and Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897). Although he dissented in Lochner v. New York, 198 U.S. 45 (1908), his opinions in Powell v. Pennsylvania, 127 U.S. 678, 684 (1888), and Mugler v. Kansas, 123 U.S. 623 (1887), provided the basis for the central claim of Justice Peckham's majority opinion: the Supreme Court would closely scrutinize legislative means to ensure that the legislature had intended a legitimate end.

This chapter contends that a distinct group of nineteenth-century conservative thinkers were committed to both the rights of business enterprises and the broader issues of civil liberties. Although my subject matter is free speech, I should also note that both Oswald Garrison Villard and Moorfield Storey, two founders of the NAACP, were conservatives on economic matters. See Wreszin (1965); M. A. Howe (1932). In a similar vein, Tiedeman was one of the first American jurists who argued that the Fourteenth Amendment barred states from restricting interracial marriages. Tiedeman (1886), pp. 536-37.

10. Summer (1982), p. 98.

11. See Muller v. Oregon, 208 U.S. 412, 421 (1908) (states could protect a "woman's physical structure" by limiting the number of hours that she could be employed); Cooley (1878), p. 527 (states should have the power to censor indecent literature).

12. Hofstadter (1955b), p. 8. See McCloskey (1951), p. vii; Eric Goldman (1952), p. 67; Rossiter (1962), p. 131; Fine (1956), p. 31; Roche (1963b), p. 135; Hurst (1956), pp. 9-10; Parrington (1930), pp. 18-19; Lustig (1982), p. 83.

13. See especially Burke (1973), pp. 119-20. For a study of American conservative thought before the Civil War, see Rossiter (1962), pp. 97-127.

14. Spencer (1896), pp. 357-58.

15. Burgess (1934), p. 392; Spencer (1972), p. 15; Carnegie (1908), p. 145; Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936); Butcher's Union Co. v. Crescent City Co., 111 U.S. 746, 757 (1884) (Field, J., concurring). See Tucker (1899a), p. 12; Sutherland (1917), p. 203; Judson (1891), p. 873.

16. Sumner (1982), pp. 60, 24.

17. Spencer (1902), p. 83. See Burgess (1927), p. vi (noting that political science would "not advance far except under the methods of fullest toleration of investigation or discussion").

18. H. Adams (1886), pp. 446-47 (citing John Stuart Mill). See also Cooley (1873), pp. 668-69, n. 1 (deriving constitutional protection for free speech and private property from the principles stated in On Liberty ).

19. Burgess (1890a), pp. 86-87; Sumner (1982), p. 100; Sutherland (1917), p. 201. See Tiedeman (1886), p. 189 (deriving the right of free speech from the right of the private individual to pursue happiness).

George Sutherland (1862-1942) is generally considered the intellectual advocate for those conservative justices who sought to declare much of the New Deal unconstitutional. Chronologically Sutherland should be considered an early twentieth-century conservative, but he never wavered from the principles of late nineteenth-century conservatism that he learned as a law student. In opinions like Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934) (Sutherland, J., dissenting) (moratorium on mortgage foreclosure violates the contracts clause), Adkins v. Children's Hospital, 261 U.S. 525 (1923) (mini-mum-wage laws violate the due process clause), and Carter v. Carter Coal Co., 298 U.S. 238 (1936) (federal regulations of wages and prices in the production of coal are beyond the scope of the commerce clause), Sutherland sought to limit the power of the state and federal governments to regulate the economy. Before serving on the Supreme Court, Sutherland was a Republican senator from Utah, a president of the American Bar Association, and a prominent adviser to President Harding.

20. Sumner (1963), p. 145. Burgess (1898), p. 211; Burgess (1927), PP. 333-34. See Burgess (1895), pp. 413-16; Burgess (1934), pp. 384-85; Burgess (1915), p. 382. See also Burgess (1927), pp. 29, 142, 152-53. For a discussion of this theme in Jeffersonian and Jacksonian writings, see Lustig (1982), pp. 46-52, 79-83.

21. United States v. Cruikshank, 92 U.S. 542, 552 (1875); Tiedeman (1886), p. 189; Brewer (1886), p. 364. See Cooley (1878), p. 518; Tucker (1899b), p. 670; H. Brown (1900), p. 330. Many conservatives were critical of the way in which the press performed that function. See Rosenberg (1986), pp. 190-93. Nevertheless, although they occasionally proposed procedural devices to make libel suits easier to bring, conservatives endorsed a libertarian interpretation of the substantive law of libel. See chapter 1, nn. 117-137 and accompanying text.

22. Sumner (1982), pp. 93-94; Cooley (1878), pp. 540-41.

23. People v. Hurlbut, 24 Mich. 44, 107 (1871) (opinion of Cooley, J.); Burgess (1934), P. 388. See Pomeroy (1870), p. 108; Tucker (1899a), p. 106; Henry Black (1895), p. 373.

24. See McClosky and Brill (1983), pp. 48-58; McClosky (1964), pp. 365-67; Huntington (1981), pp. 18, 266, nn. 8-9 (citing surveys).

25. H. Adams (1886), pp. 446-51; Justice Henry Brown, a member of the Lochner majority, also pointed to the probability that "the abuses would soon outnumber the advantages" if statutes prohibiting certain forms of dissent were enforced. H. Brown (1900), p. 337.

26. Burgess (1927), pp. 334-35.

27. Burgess (1923), pp. 37-38; Tucker (1899c), p. 84; Sumner (1934), p. 266. The Democratic party platform in 1900 stated that “imperialism abroad will lead quickly and inevitably to despotism at home." Faulkner (1959), p. 274. See Godkin (1893), p. 173; Brewer (1899), p. 15; King (1967), p. 270 (quoting John Marshall Harlan); Cooley (1893), p. 394.

In general, the opposition to imperialism was led by older Mugwumps, who had advocated laissez-faire economics and honest government for more than thirty years. See Beisner (1985), pp. 9-11; Tompkins (1970), pp. 148-51.

28. Edward Atkinson (1827-1905) was a prominent conservative pamphleteer and anti-imperialist leader. The most concise statement of his political beliefs is found in an 1871 essay, "Inefficiency of Economic Legislation," which declared, "it does not appear that any laws of this so-called 'protective' character have ever proven efficient in causing a more equitable division of labor or of product than might otherwise have been had. In the category of protective legislation attempted in this country may be included usury laws, eight and ten-hour laws for adults, and protective tariffs." Atkinson (1871), p. 1. For a full exposition of Atkinson's life and ideas, see Williamson (1934).

29. Tompkins (1970), pp. 207-8.

30. For a fuller summary of Atkinson's efforts to secure "a limited residence in Fort Warren" prison and the McKinley administration's response, see Tompkins (1970), pp. 206-8; Beisner (1985), pp. 98-101; Williamson (1934), pp. 227-29.

31. Godkin (1899a), p. 346.

32. Godkin (1899b), p. 388. For other editorial criticisms of the McKinley administration's handling of the Atkinson affair, see Faulkner (1959), p. 256.

33. Sumner (1901), pp. 10-11. For other conservative and anti-im-perialist attacks on McKinley's policy of censoring news dispatches and letters sent by soldiers stationed in the Philippines, see Parker (1904), pp. 13-14; Schurz (1913), pp. 87, 101-2; Tompkins (1970), pp. 201-2, 246 (citing articles and newspaper editorials).

34. Beisner (1985), pp. 9-10 (noting the ages of the anti-imperialists in 1898), 17; Fine (1956), pp. 373-78; Hofstadter (1955b), p. 203.

35. Burgess (1923), pp. 42-54 (arguing that the income tax was the greatest threat to individual liberty passed between 1898 and 1914), 64-85 (arguing that the Espionage Act was the greatest threat to individual liberty passed between 1914 and 1918).

36. Several weeks before the first Nation editorial appeared attacking censorship legislation that journal charged the New Republic with believing "that an ounce of fresh experiment is worth at least a pound of experience, and that the day after tomorrow is better than a thousand yesterdays." Villard (1917a), p. 410. During the Wilson administration, the Nation opposed the Clayton Act, the Federal Trade Commission, federal child labor laws, and the nomination of Brandeis to the Supreme Court. For examples of the Nation's prewar conservatism, see Villard (1912); Villard (1916). See generally Grimes (1953), pp. 66-70. The Nation did take a sharp turn to the political left after the war. See Grimes (1953), pp. 93-94 (claiming that 1919 was the crucial year in the transformation of the Nation's editorial policy); Wreszin (1965), pp. 15, 26-27, 30; Radosh (1975), pp. 67-71.

37. See chapter 3.

38. Villard (1917b), p. 482. See Villard (1917c) (endorsing a directed verdict in a sedition case because the defendant did not advocate illegal conduct); Villard (1917d) (endorsing Judge Hand's opinion in Masses Publishing Company v. Patten, 244 F. 535 [S.D.N.Y. 1917]); Vil-lard (1917e) (opposing the Espionage Act of 1917); Villard (1918a) (opposing the Sedition Act of 1918); Villard (1918b) (attacking the conduct and verdict of the Abrams trial).

39. See Burgess (1923), pp. x-xi, 23-26, 64-85; Cooley (1878), pp. 518-73. Scholars who have studied Cooley's career claim that he was more interested in the liberty of speech than the liberty of contract. Jones (1967), p. 765; Hyman and Wiecek (1982), pp. 354-56.

40. Murphy (1979), p. 50 (until World War I political controversy did not lead to "sufficient demands for public attention to civil liberties questions to involve any substantial number of people in a serious consideration of civil liberties issues"); Murphy (1972), pp. 13-14, 18; Chafee (1941), p. 507; Goldstein (1978), pp. 68-69; Dowell (1939), pp. 13-14, 21; Keller (1977), p. 519.

41. See Goldstein (1978), pp. 23-60, 68-69; Whipple (1927), pp. 210-20; Chafee (1941), p. 507; urphy (1972), pp. 16-17.

42. 158 U.S. 564 (1895).

43. Darrow (1895), pp. 64, 94-95.

44. James Pickering's defense of the right to speak on public property in Davis v. Massachusetts, 167 U.S. 43 (1897) was devoted to these claims. Pickering (1897), pp. 30-43, 47-61. Those state courts that upheld a right of access to public property also relied on these claims. For example, the Illinois Supreme Court declared unconstitutional an Illinois statute that required street demonstrations be licensed because "it merely leaves it to the discretion or caprice of the superintendent of police to imperatively prescribe who shall be permitted to gather together in such processions, and who shall not." City of Chicago v. Trotter, 136 Ill. 430, 433 (1891). See In re Gribben, 47 P. 2d 1074, 1077 (Okla. 1897) (ordinance violated traditional uses of public property); In re Garrabad, 54 N.W. 1104, 1107-8 (Wis. 1893) (ordinance was arbitrary and violated traditional uses of public property); Anderson v. City of Wellington, 40 Kan. 173, 179 (1888) (ordinance violated traditional uses of public property); Frazee's Case, 42 N.W. 72, 76 (Mich. 1886) (same); In re Flaherty, 38 P. 981, 984-86 (Cal. 1895) (Harrison, J., dissenting) (ordinance was arbitrary); Rich v. City of Naperville, 42 Ill. App. 222, 223-224 (1891) (ordinance was arbitrary and violated traditional uses of public property). Municipal ordinances were sometimes attacked on the ground that the municipality had no authority under state law to so regulate public property. See Anderson v. City of Wellington, at 173; Pickering (1897), pp. 23-28. See chapter 1, nn. 52-58 (noting that similar arguments were used to limit state regulatory power).

At times, courts used language that seemed to indicate judicial awareness that free-speech issues were at stake. One court declared, "Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship according to the dictates of one's conscience, and the right to parade in a peaceful manner and for the lawful purpose, have been fostered and regarded as among the fundamental rights of a free people." Rich v. City of Naperville, at 222, 223-24. Nevertheless, while the Court may have thought that political speech was a particularly good use of the streets, the actual holding of the case was that municipalities could not forbid any traditional use of public property. Illinois courts also held that citizens had a right to picnic and dance on public land. Village of Des Plaines v. Boyer, 123 Ill. 348 (1888). Furthermore, in support of the right to speak in the street, several courts and the Pickering brief relied heavily on City of Baltimore v. Radecke, 49 Md. 217 (1878). See Garrabad, at 1107; Flaherty, at 985 (Harrison, J., dissenting); Pickering (1897), at 4, 6, 58. That case concerned the right of city officials to restrict the use of a steam engine in the center of town.

45. Tiedeman (1894), pp. 268-69. See Cooley (1878), p. 289, n. 4. See also Henry Black (1895), p. 324; Dillon (1881), p. 657, n. 4 ("making a speech in a public street is not a nuisance 'per se' ") (John F. Dillon's treatise Commentaries on the Law of Municipal Corporations was a leading authority for the proposition that state regulations could be made only for a limited number of purposes). See Jacobs (1954), p. 121.

The leading nineteenth-century opponent of the right to make speeches on public property was Judge Oliver Wendell Holmes, Jr. In Commonwealth v. Davis, 162 Mass. 510 (1895), Holmes declared that persons had no more right to speak on public property than they had to speak on another person's private property. The Supreme Court endorsed this analysis in Davis v. Massachusetts. Tiedeman cited the holding of Davis in his analysis of free speech in a later edition of his work; however, he never integrated that decision into his more general analysis of constitutional free-speech rights. See Tiedeman (1900), p. 231.

46. Sutherland (1917), p. 198; Spencer (1896), pp. 284-96. See Sumner (1982), p. 85.

47. Paul (1960), p. 65.

48. Burgess (1895), p. 422. See Guthrie (1898), p. 49 ("the perpetuity of our institutions . . . depend[s] . . . upon the power given the judiciary to declare null and void all legislation that is clearly repugnant to the supreme law of the land"); Judson (1913), pp. 47, 94; Paul (1960), p. 27 (quoting Tiedeman), pp. 229-30; Sumner (1982), p. 95; W. Taft (1920), pp. 19-20; Skowronek (1982), p. 152 (quoting Brewer); American Bar Association (1918), pp. 403-4; Parrington (1930), p. 166 (quoting E. L. Godkin, 119).

49. Tiedeman (1886), p. vii; Shumate (1887), p. 106; Sumner (1982), p. 28. For other expressions of conservative fears of popular democracy, see Tucker (1899a), p. 82 ("the democratic patriarcha must, in order to retain its power, band the multitude in its support by profuse and extravagant largess"); Spencer (1896), p. 298 ("the authority of a popularly-chosen body is no more to be regarded as an unlimited authority than the authority of a monarch"). For conservative discussions of the proper role of attorneys, see Guthrie (1898), p. 32; Burgess (1890b), p. 365.

50. Cooley (1878), p. iii; Tiedeman (1886), p. vii. For more general discussions of the rise and influence of these treatises after the Civil War, see Hyman and Wiecek (1982), pp. 341, 511; Keller (1977), pp. 344-45; Jacobs (1954); Twiss (1962); Paul (1960).

51. Cooley (1878), pp. 209-10. See Tiedeman (1886), p. 604; Tucker (1899a), PP. 353-54; Burgess (1890a), p. 215; Burgess (1923), p. 6.

52. United States v. E. C. Knight Co., 156 U.S. 1 (1895). See McCurdy (1979). For other cases in which the Court held that federal regulations exceeded the scope of the interstate commerce clause, see Carter v. Carter Coal Co.; United States v. Butler, 297 U.S. 1 (1936); Hammer v. Dagenhart, 247 U.S. 251 (1918).

53. Jefferson (1975), p. 282. See Madison (1973), pp. 301-28. For a discussion of the eighteenth-century origins of this claim, see Levy (1985), P. 304-8.

54. Ex parte Jackson, 96 U.S. 727, 735 (1877). See Cooley (1878), p. 535 (noting that federal courts had no common law jurisdiction over sedition or libel).

55. Burgess (1923), pp. 65-68.

56. Ibid.

57. Ibid., pp. 65, 70, 79-80.

58. See chapter 1, n. 41 and accompanying text.

59. Cooley (1878), p. 536.

60. Cooley (1880), p. 87; Tucker (1899b), pp. 595-97. See Tiede-man (1886), pp. 631-32; Henry Black (1895), pp. 197-202.

61.      Cooley (1878), pp. 209-10. See sources cited in chapter 1, n. 52

62. Barron v. Baltimore, 32 U.S. 243, 249 (1833).

63. See Pomeroy (1870), p. 151; Burgess (1915), pp. 293-3o2; Burgess (1886), pp. 18-23.

64. John Norton Pomeroy (1828-1885) was a professor of law at the University of New York and the University of California. He wrote a number of influential legal treatises and was generally considered the foremost authority of his day on equity.

65. Pomeroy (1870), p. 151; Slaughter-House Cases, 16 Wall 36, 96 (1873) (Field, J., dissenting); Slaughter-House Cases, at UT-18 (Bradley, J., dissenting).

66. Campbell (1873), p. 12.

67. Pomeroy (1870), pp. 145-51; Burgess (1890a), p. 224. See Burgess (1902), p. 70 ("real civil liberty is always national"); Burgess (1895), pp. 409-10; Burgess (1890a), pp. 184-85; Burgess (1915), pp. 293-302; Burgess (1934), pp. 294-311; Burgess (1886), pp. 18-23.

68. Spies v. Illinois, 123 U.S. 131, 150-52 (1887). Tucker's treatise on constitutional law, published ten years later, stated that the privileges and immunities clause did not incorporate the Bill of Rights. Tucker (1899b), P. 854. However, as his private conversations demonstrate, his argument in Spies better represented his interpretation of the Fourteenth Amendment. See Curtis (1986), p. 186.

69. William D. Guthrie (1859-1935) was one of the most successful conservative lawyers of his time, a member of the Columbia Law School faculty, and the author of Lectures on the Fourteenth Article of Amendment to the Constitution of the United States, an influential legal treatise. Guthrie was active in the fight against child labor laws and was counsel to business interests in such cases as Champion v. Ames, 188 U.S. 321 (1903) (power of Congress to regulate interstate lotteries), Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 and 158 U.S. 601 (1895) (the constitutionality of the income tax), and Northern Securities Co. v. United States, 193 U.S. 197 (1904) (constitutionality and interpretation of antitrust laws).

70. Guthrie (1898), pp. 62-65; see also pp. 21-23. For other conservative authors who claimed that the privileges and immunities clause forbade state violations of the liberties guaranteed by the Bill of Rights, see Judson (1891), p. 880; Watson (1910), p. 1612. See generally Connor (1920), p. 230 (citing various sources who endorsed John Campbell's interpretation of that clause). See generally Curtis (1986), chapter 7.

71. Twining v. New Jersey, 211 U.S. 78, 122 (1908) (Harlan, J., dissenting); Maxwell v. Dow, 17 6 U.S. 585, 606-8 (1900) (Harlan, J., dissenting); O'Neil v. Vermont, 144 U.S. 277, 370 (1888) (Harlan, J., dissenting).

72. O'Neil v. Vermont, at 323 (1892); Patterson v. Colorado, 205 U.S. 454, 465-66 (1907) (Brewer, J., dissenting).

73. Henry Black (1895), pp. 481,464.

74. 92 U.S. 549, 551-52 (1875). Rabban has argued that in Spies v. Illinois the Supreme Court dismissed a free-speech claim because it believed that no federal question was presented. This interpretation, however, is erroneous. The Spies decision held that the factual basis of the free-speech claim either did not appear on the record of the case or was not properly presented to the state court. Thus, the Court noted, but did not adjudicate, any of petitioner's free-speech claims. Spies, at 166-82.

75. See Munn v. Illinois, 94 U.S. 113 (1877).

76. See Cooley (1873), pp. 658-59; Tiedeman (1886), p. 15; Henry Black (1895), p. 268; Brannon (1901), pp. 63-66.

77. Cooley (1878), p. 441. See Willoughby (1910), p. 868; Watson (1910), p. 1451; Henry Black (1895), p. 418 ("That which the provision is intended to perpetuate is not remedies or forms of procedure, but the established principles of private right and distributive justice"). See also Jacobs (1954), pp. 32, 39-58 (noting the influence of Cooley's in-terpretation of the due process clause).

78. Cooley (1873), p. 668.

79. Patterson v. Colorado, at 454, 465 (Harlan, J., dissenting).

80. Cooley (1873), pp. 668-69, and n. 1. To the best of my knowledge, this is the first time that a prominent American legal scholar endorsed John Stuart Mill's defense of free speech.

81. Tiedeman (1886), p. 189; Burgess (1890a), pp. 86-87; Minor (1882), p. 80; Brannon (1901), p. 114. John Minor (1813-1895) was a pro-lessor at the University of Virginia and is best known for his influence on Justice James McReynolds. Henry Brannon (1837-1914) was a justice on the Supreme Court of West Virginia, where he influenced the rise of substantive due process.

82. 165 U.S. 578 (1897).

83. Lochner v. Hew York, at 45, 53, 61.

84. Downes v. Bidwell, 182 U.S. 244, 296, 298 (1901) (White, J., concurring). The precise issue of free-speech rights in the territories was never adjudicated because Congress had by statute granted that right to the inhabitants of the territories. See Kepner v. United States, 195 U.S. 100, 123-24 (1903).

85. Downes, at 282-83 (opinion of Brown, J.). See Rassmussen v. United States, 197 U.S. 516, 531 (1905); Hawaii v. Mankichi, 190 U.S. 197, 217-18 (1903).

86. Downes, at 359 (Fuller, C. J., dissenting).

87. Davis v. Massachusetts, at 43; Patterson v. Colorado, at 454; Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230 (1915); Fox v. Washington, 236 U.S. 273 (1915); Gilbert v. Minnesota, 254 U.S. 325 (1920).

88. See Twining v. New Jersey, at 78 (the Fourteenth Amendment did not incorporate the Fifth Amendment right against self-incrimination); Maxwell v. Dow, 176 U.S. 581 (1900) (the Fourteenth Amendment did not incorporate the Sixth Amendment right to a twelve-person jury; Maxwell also affirmed earlier cases holding that the Fourteenth Amendment did not incorporate rights stated in the Second, Fifth, Seventh, and Eighth Amendments); West v. Louisiana, 194 U.S. 258 (1904) (the Fourteenth Amendment did not incorporate the Sixth Amendment right to confront witnesses). For a comprehensive citation to turn-of-the-century cases in which the Supreme Court failed to incorporate provisions of the Bill of Rights, see Frankfurter (1965).

89. Chicago, Burlington and Quincy Railroad Co. v. Chicago, at 226

90. In Patterson v. Colorado the state did submit a lengthy argument against incorporation. Dickson (1907), pp. 59-64. Other states briefs either only discussed the merits of the free-speech argument (Knowlton and Travis [1897]; Tanner and Remann [1915]) or baldly cited a few cases without any argument as to their meaning. Sherman, Wetherbee, and Dawes (1925), p. 7; Hilton and Markham (1920), p. 25; Dawson (1915), p. 45. The main brief for the state of New York in Git-low v. New York, 268 U.S. 652 (1925), virtually conceded the issue. Sherman and Benton (1925), p. 9.

91. Gitlow, at 666 and n. 9 (citing these earlier cases). There is dic-turn in Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922) stating that the liberties protected by the Fourteenth Amendment did not include expression rights. However, the Court rejected this "incidental statement" at the next opportunity. Gitlow, at 666. Furthermore, the Prudential Ins. Co. case dealt with commercial speech. The Court had earlier held that only speech associated with educational or political purposes (i.e., speech that would help persons develop their faculties) was within the ambit of constitutional protection. Mutual Film Corp., at 230, 244-45.

92. 236 U.S. 1 (1915).

93. Gitlow, at 666, n. 9.

94. Grosjean v. American Press Co., at 233, 244.

95. Fox v. Washington, 236 U.S. 273, 276-77 (1915).

96. Cooley (1878), pp. 527-28. See Watson (1910), pp. 1402-3. See also Murphy (1979), p. 195 (interpreting Cooley as advocating those standards that were accepted when the Constitution was passed).

97. Henry Black (1895), p. 65. See Willoughby (1910), pp. 28-35; Cuthrie (1898), pp. 38-39; Tucker (1899a), p. 351; Pomeroy (1870), p.94; Tiedeman (1886), pp. 12-13; Judson (1913), p. 60; Cooley (1878), p. 212.

98. Levy (1985); Blackstone (1773b), p. 151.

99. The other treatise writers discussed in the first part of this section did not discuss specific free-speech standards.

100. By comparison, the leading intellectual contemporaries of late nineteenth-century conservatives took positions that were either explicitly or implicitly hostile to broad constitutional protections for free speech. For example, the prewar opinions of Oliver Wendell Holmes, Jr., argued that the constitutional guarantee of free speech only limited prepublication sanctions and that plaintiffs in libel suits did not have to prove actual malice in addition to falsehood. See Patterson v. Colorado, at 454; Butt v. Advertiser Newspaper Co., 154 Mass 238, 242 (1891) (Holmes, J.). Holmes acknowledged that at the time of Patterson he believed that no prior restraint was the rule of the First Amendment. See Bogen (1982), p. 100 (quoting Oliver Wendell Holmes, Jr., to Zechariah Chafee, Jr. [June 12, 1922]). For discussions of Holmes's early free-speech decisions, see Bogen (1982), pp. 122-31; Rogat and O'Fallon (1984), pp. 1352-60. Holmes was, of course, an early opponent of late nineteenth-century jurisprudence. See especially Holmes (1920), pp. 167-202; Lochner v. New York, at 45, 74-76 (Holmes, J., dissenting).

James Bradley Thayer, another leading opponent of substantive due process, did not discuss free speech in his writings. However, his claim that courts should only strike down statutes whose unconstitutionality was "not open to rational question" was inconsistent with significant judicial protection of free-speech rights. Thayer (1893), pp. 143-52, especially p. 144. See Shattuck (1891) (prominent article claiming that neither the right to labor nor the right to free speech was protected by the due process clause of the Fourteenth Amendment). See also chapter 3 (claiming that progressives were responsible for increased interest in governmental regulation of speech in the early twentieth century); Rabban (1983), pp. 1215-16 (claiming that postwar progressive civil libertarians had little interest in free speech before the war); D. Johnson (1963), pp. 194-98.

101. Rabban (1985); D. Anderson (1986); D. Anderson (1983).

102. Cooley (1878), p. 527.

103. Henry Black (1895), p. 473; Tiedeman (1886), pp. 191-92.

104. Tucker (1899b), p. 670 (discussing Hallam [1847], p. 164).

105. Henry Black (1895), pp. 474-75.

106. Cooley (1878), p. 537.

107. Ibid., p. 536. See Tiedeman (1886), p. 192 (endorsing Cooley). In The Principles of Constitutional Law, Cooley claimed that political dissenters had the right "to bring the people to the point of consenting to any change short of the abolition of republican institutions." Cooley (1880), pp. 277-78.Although this standard would later be used to limit the scope of legitimate political dissent, Cooley never discussed what such advocacy might mean and indicated that efforts to forbid "condemnation of the government or Constitution" were probably beyond the pale of legislative authority. Cooley (1880), p. 277 . Constitutional Limitations, which is essentially the unabridged edition of The Principles of Constitutional Law, never discussed this exception and endorsed an English case that held criticisms of democracy were within the right of free speech when made by persons who believed them true. Cooley (1878), pp. 538-41, n. 1 (endorsing Respublica v. Dennie, 4 Yeates 267 [1805]).

108. Henry Black (1910), p. 652.

109. . Ibid., pp. 657-58; Tiedeman (1886), pp. 192-93. See H. Adams (1886); H. Brown (1900), p. 335 (arguing that Communists had the right to speak as long as they "did not directly incite to criminal acts").

110. Salomon et al. (1887), p. 21. In Turner v. Williams, Justice Brewer suggested that the federal government had no constitutional power to deport alien anarchists who rejected violence as a means of achieving their political ends. Turner v. Williams, 194 U.S. 279, 296 (1904) (Brewer, J., concurring).

111. Curtis (1986), p. 186. Tucker was one of many prominent conservative jurists who presented free-speech claims to the Supreme Court. Tucker was brought into the Spies case by Roger A. Pryor, a Wall Street attorney who helped defend the sugar monopoly against prosecution under the Sherman Anti-Trust Act in United States v. E. C. Knight Co. See Avrich (1984), p. 334. The main attorney for the E. C. Knight Company was John O. Johnson, who later sought to persuade the Court in Twining v. New Jersey that the Fourteenth Amendment incorporated all the provisions of the Bill of Rights. Johnson et al. (1908), p. 51. For a fuller discussion of Johnson's legal activities, which included constitutional attacks on virtually every piece of commercial regulation passed by the federal government at the turn of the century, see Winkelman (1942). Alton B. Parker, the Cleveland Democrat who ran for president in 1904, was the first attorney who asked the Supreme Court to hold that a labor injunction violated the constitutional right of free speech. See Gompers v. Bucks Stove and Range Company, 221 U.S. 418, 430 (1911) (argument of the petitioner). While a judge in New York, Parker voted to uphold the New York maximum-hour law later invalidated by the Supreme Court in Lochner v. New York, but he endorsed the principles of economic substantive due process in his scholarly writings. See Parker (1914), pp. 631-32, 635-40. Parker became involved in the Gompers litigation as a result of his work with the National Civic Federation, a group of leading conservative industrialists who were seeking to compromise with less radical labor unions like the American Federation of Labor. Weinstein (1968), p. 16. Guthrie successfully argued Pierce v. Society of Sisters, 268 U.S. 510 (1925), before the Supreme Court. Although his brief primarily asserted that an Oregon law closing private schools violated the freedoms of contract and religion, Guthrie also claimed that the statute violated free-speech rights and quoted Justice Holmes's statement that the "ultimate good desired is best reached by free trade in ideas" in support of that point. Guthrie and Hershkopf (1925), p. 82 (quoting Abrams v. United States, 250 U.S. 616, 630 [1919] [Holmes, J., dissenting]).

112. Burgess (1923), pp. 75 -76 In 1890, Burgess claimed that statutes punishing criticisms of the government or comments about the public character of state officials were examples of an "unusual law of libel and slander." Burgess (189oa), p. 192.

113. Burgess (1923), pp. 80-83.

114. Gutfeld (1968), pp. 165-66. See In re Conciliation Commissioner for Sanders County, Mont., 5 F. Supp. 131 (D. Mont. 1933) (describing the New Deal as "government in defiance of the Constitution").

115. United States v. Hall, 248 F. 150, 152-53 (D. Mont. 1918). Judge Bourquin also delivered an important opinion that restricted federal power to deport alien radicals during the red scare. In Ex parte Jackson, Bourquin freed an alien dissident who was being deported on the basis of illegally seized evidence. Referring to the broader violations of constitutional rights that he saw taking place in American society, Bourquin stated, "the inalienable rights of personal security and safety . . . are limited to no man, race or nation, to no time, place, or occasion, but belong to man, always, everywhere, and in all circumstances." Ex parte Jackson, at 110, 113.

116. Most nineteenth-century state constitutions asserted that truth (for good motives and good ends) was a complete defense. See Cooley (1878), pp. 518-22, n. 1. Conservative treatises rarely paid any attention to the limitations that good motives and good ends might have placed on the scope of constitutional free-speech protection; similarly, there seems to be no case law on what constituted good motives and good ends. Cooley's writings suggest that the duty to speak on public affairs created an irrebuttable presumption that true political statements were published for good motives and good ends. This qualification on truthful statements may have concerned revelations about private affairs and conduct. See chapter 1, n. 128.

117. For a good summary of the cases, see the addendum to Haig (1891). See also Haig (1891), p. 565 (noting that the cases are "hopelessly irreconcilable"). I have not determined whether the more con-servative state benches took the most protective speech positions.

118. 376 U.S. 254, 279-80 (1964).

119. Cooley (1878), p. 528. See Atkinson v. Detroit Free Press, 46 Mich. 341, 375-76 (1881) (Cooley, J., dissenting).

120. Cooley (1878), p. 533.

121. Ibid., pp. 540-41; Atkinson, at 341, 377 (Cooley, J., dissenting). See Miner v. The Detroit Post and Tribune Company, 49 Mich. 358 (1883).

122. Cooley (1878), pp. 540-41.

123. Atkinson, at 379 (Cooley, J., dissenting). See Miner v. The Detroit Post and Tribune Company, at 358.

124. Atkinson, at 384 (Cooley, J., dissenting).

125. Wason v. Walter, 4 L.R. 73, 93-94 (Q.B. 1868).

126. Blackstone (1773a), p. 125; Blackstone (1773b), pp. 150-52.

127. Cooley (1878), p. 549. But see Tiedeman (1886), p. 51 (claiming that there was no constitutional right to discuss the private lives of public officials). This question was more recently left open by the Supreme Court in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).

128. Henry Black (1895), pp. 478-79,483; Tiedeman (1886), pp. 45, 50-51, 54; Brewer (1886), p. 364. See also H. Brown (1900), p. 330 (claiming that some false speech was protected by the Constitution).

129. Tucker (1899b), p. 670.

130. Godkin (1890), p. 63.

131. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

132. Sullivan, at 270, 274 -77.

133. Sullivan, at 280.

134. Coleman v. MacLenan, 78 Kan. 711, 718 (1908).

135. Coleman, at 720, 733-36.

136. Sullivan, at 280, n. 20.

137. See chapter 5.

138. Chafee (1941), pp. 357-60.

139. Ibid., p. 13.

140. Associated Press v. National Labor Relations Board, 301 U.S. 103 (1937); DeJonge v. Oregon, 299 U.S. 242 (1937); Grosjean v. American Press Co., at 233; Fiske v. Kansas, 274 U.S. 380 (1927). Conservative justices also voted to strike down state laws that limited the subjects school children could be taught or the forums in which they could be taught. See Farrington v. Tokushige, 273 U.S. 284 (1927); Pierce v. Society of Sisters, at 510; Meyer v. Nebraska, 262 U.S. 390 (1923) (Suther-land, dissenting).

141. Stromberg v. California, 283 U.S. 359 (1931) (Justices Suther-land and Van Devanter supported the free-speech claim; Justices Butler and McReynolds did not).

142. Herndon v. Lowry, 301 U.S. 242 (1937); Near v. Minnesota, 283 U.S. 697 (1931); Whitney v. California, 274 U.S. 357 (1927); Gitlow, at 652.

143. See Jacobs (1954), P. 224; R. Brown (1927), p. 945, n. 11 (citing statistics).

144. Associated Press, at 135 (Sutherland, J., dissenting).

145. Sutherland (1919), pp. 20-21.

146. Ibid., pp. 96-98.

147. Ibid., pp. 70-72. See H. Taft (1921), pp. 719-20; Wallace (1920), PP. 394-95 (I was unable to ascertain M. G. Wallace's general political convictions).

148. Sutherland (1919), pp. 98-99, 101-4, 111-15. See Block v. Hirsh, 256 U.S. 135 (1921); Wilson v. New, 243 U.S. 332 (1917). See also Siegan (1980), p. 168; Murphy (1979), p. 183; Paul (1960), pp. 228-29. For a fuller discussion of Sutherland's attitude toward the role of the Supreme Court in foreign affairs, see Paschal (1951), pp. 221-29. See also United States v. Curtiss-Wright Export Company, 299 U.S. 304 (1936) (Congress could grant the executive more discretionary power over foreign affairs than over domestic matters).

149. Gitlow, at 668 (quoting Toledo Newspaper Co. v. United States, 247 U.S. 402 [1917]).

150. Garrett endorsed Tiedeman's claim that the fundamental rule of constitutional interpretation was alternm non laedere. Garrett (1919), PP. 73-74.

151. Ibid., pp. 71-72, 75.

152. Ibid., p. 71.

153. Ibid.

154. Page (1919), pp. 537-39. For a discussion of the general tone of bar association statements on free speech, see Lawrence (1974), P. 71. Progressives, as well as conservatives, tended to identify radicalism and aliens. See Wigmore (1920), p. 543. See also Preston (1963); Higham (1978), pp. 194-263. This matter is discussed in chapter 3.

For contemporary conservative claims that the First Amendment does not protect the advocacy of "anti-American" doctrines, see Emerson (1970), pp. 48-49, n. 4 (citing sources); Jaffa (1970), pp. 221-38.

155. Stromberg v. California, at 359, 376 (Butler, J., dissenting).

156. Gilbert, at 333. For similar remarks, see Pierce, at 251; Schaefer v. United States, 251 U.S. 466, 481 (1920).

157. The Court permitted prosecutors to place President Wilson's "war message" into evidence in sedition cases and allowed federal officials to testify about the laudable purposes behind the war policies of the United States. Pierce, at 251; Carroll (1918), p. 645. In Pierce, Justice Pitney declared a prediction that the draft would become mandatory to be false, even though the prediction had been verified by the time the case came to the Supreme Court. Pierce, at 264 (Brandeis, J., dissenting).

158. Pierce, at 245.

159. Herndon, at 276 (Van Devanter, J., dissenting) ("for all know that such measures could not be effected otherwise").

160. Tiedeman (1886), pp. 192-93.

161. Herndon, at 276 (Van Devanter, J., dissenting).

162. See Fiske, at 384-85; DeJonge, at 358-62; Stromberg, at 365-67.

163. Chafee's examples of conservative articles on free speech were written by Edward Corwin, Day Kimball, and J. P. Hall. Chafee (1941), pp. 508-9. Corwin was one of the most influential opponents of conservative jurisprudence. See chapter 3. Kimball was a Frankfurter protégé (he clerked for Holmes, and Frankfurter supplied all of Holmes's clerks) (Holmes and Laski [1963a], p. 226). Hall, the dean of the University of Chicago Law School during the first quarter of the twentieth century, expressed his hope that Lochner and other such cases "will be abandoned by the courts." Hall (1917), p. 146. The only other articles Chafee cited that defended the constitutionality of wartime restrictions on political dissent were written by Herbert Goodrich and John H. Wigmore. Chafee (1941), pp. 108-9, n. 3. Goodrich claimed that Abrams was right because Lochner was wrong. Goodrich (1921), p. 500. Wigmore was an admirer of Justice Holmes, and the Abrams decision was one of only two times that the two ever disagreed on the correct outcome in a case. See Roalfe (1977), especially pp. 148-49. The progressive origins of the bad tendency test are discussed at length in chapter 3.

The only Supreme Court opinion Chafee analyzed at length was Justice Clarke's majority opinion in Abrams. Chafee (1941), pp. 128-36. Not only did Clarke believe that statutes should be sustained whenever the legislation might appear to be constitutional to a rational person, but he was also prepared never "to hold a statute unconstitutional whenever several of the Justices conclude that it [was] val-id-by conceding that two or more being of such an opinion in any case must necessarily raise a 'rational doubt.' "Clarke (1923), p. 692.