The Supreme Court and Property Rights in the Progressive Era

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The Supreme Court and Property Rights in the Progressive Era JAMES W. ELY, JR. The Progressive Movement dominated American political culture during the first two decades of the twentieth century.1 Although historians continue to debate the nature of Progressivism in those years, the movement was characterized by certain central tenets: Increase of governmental authority, both federal and state over the economy; hostility to the central role of private property rights in constitutional jurisprudence; rejection of individualism in favor of statist ideology; and confidence in administrative agencies, supposedly staffed by nonpartisan experts, to formulate and carry out policy. Progressives displayed little interest in claims of individual right and the plight of racial minorities. They were hostile to doctrines, such as the separation of powers, which constrained the reach of active government.2 “Among the most durable and controversial characteristics of Progressive legal thought,” Herbert Hovenkamp has perceptively observed, “were its distrust of the market and its faith that the governmental agency, whose salaried officials did not profit from their decisions, could regulate the economy better.”3 This statist philosophy set the stage for the administrative state and represented a sharp break from the prevailing constitutional norms of the nineteenth century, with its insistence on limited govern­ ment and respect for property and contractual rights.4 For our purposes, it is important to bear in mind that political figures and scholars associated with the Progressive Movement directed much of their fire at the judiciary, including the Supreme Court, which they pictured as a barrier to their reform agenda. In 1912, Senator Robert M. LaFollette of Wisconsin forcefully articulated this senti­ ment: “Gradually the judiciary began to loom up as the one formidable obstacle which must be overcome before anything substantial could be accomplished to free the public from the exactions of oppressive monopolies and from the domination of the property interests.”5 At the same time, Theodore Roosevelt launched a broadside against both state 54 JOURNAL OF SUPREME COURT HISTORY courts and the Supreme Court, charging that they “have placed well-nigh or altogether insurmountable obstacles in the path of needed social reforms.”6 Deeply distressed by the federal and state courts, many Progressives reopened the question of the legitimacy of judicial review and advanced proposals for the recall of state judges and state judicial decisions.7 They strongly urged judicial deference to legislative determinations. A contrary thesis—that in the area of property rights, the Supreme Court largely accommodated the Progressive agenda, and that the barrage of criticism was in fact misplaced—is offered here, along with an argument maintaining that the Supreme Court of the Progressive Era diminished the protection afforded the rights of property owners under traditional constitutional prin­ ciples. In so doing, the Supreme Court opened the door for New Deal jurisprudence to relegate property and contractual rights to a secondary place in constitutional law, one from which they have yet to recover. To develop these points, the rulings of the Supreme Court pertaining to property rights issues arising from Progressive Era legisla­ tion will be canvassed, even though in some cases the decisions came after the years of the Progressive Movement. Tenement Reform Tenement reform in the first decade of the twentieth century is a good place to start. Reformers repeatedly condemned urban congestion and urged the enactment of laws to secure better housing for the poor. Problems relating to light, ventilation, sani­ tation, and fire protection were especially In 1906, the Supreme Court unanimously affirmed a lower court ruling validating the New York State Tenement House Act of 1901. The law required that new buildings must be built with outward-facing windows in every room, an open courtyard, proper ventilation systems, indoor toilets, and fire safeguards. The author argues that the decision, which demonstrated the Court's willingness to uphold regulations that imposed expenses on property owners in order to promote public health and safety, is but one example of the Justices' willingness to accommodate property regulation in the Progressive Era. PROPERTY RIGHTS IN THE PROGRESSIVE ERA 55 pressing. The landmark New York Tenement House Act of 1901, passed in response to these concerns, required owners of existing tenements to provide enhanced fire protec­ tion...