American Constitutional Development from 1868 to 1937

From 1868 to 1937 the American constitutional order underwent a series of gradual and convulsive changes. The nation attempted to adapt its system of governance to challenges posed by the abolition of slavery, the effects of war, the booms and busts of industrial capitalism, the rise of the administrative state, and movements to enhance the rights of racial minorities, women, and laborers. By the end of the period, political and legal actors had produced a framework that set the stage for much of modern constitutional law.


The period began amid a major shift in reconstruction policy following the Civil War. Radical Republican politicians sought both to punish recalcitrant Southern rebels and to safeguard the civil and political rights of newly freed African American men with a bold raft of legislation. To ensure the constitutional validity of these laws, Congress proposed the Fourteenth Amendment and made ratification a prerequisite for former Confederate states seeking readmission to the Union.

The amendment repudiated Confederate debts and forbade former rebels from holding office without a supermajority of Congress authorizing them to do so. The amendment's most significant legacy, however, lies in the four rights-bearing clauses of its first section. The citizenship clause grants both state and federal citizenship to “[a]ll persons born or naturalized in the United States,” overturning part of the infamous Dred Scott decision ( Dred Scott v. Sanford, 60 U.S. 393 [1856] ). The privileges or immunities clause forbids states from impairing the privileges or immunities of citizenship, but leaves the substantive content of these rights unclear. Congressional debates suggest that the Amendment's framers intended to encompass a broad range of substantive rights, including many of the protections of the Bill of Rights. Echoing the language of the Fifth Amendment, the due process clause prohibits states from taking the “life, liberty or property” of any person without due process of law. Finally, the equal protection clause requires states to provide all persons with the “equal protection of the law” language intended to eradicate formal racial discrimination, but which was suitably broad to prohibit discrimination against other groups. The interpretation of these clauses has remained one of the focal points of American constitutional law in the twentieth and twenty-first centuries.

The Supreme Court delivered its first major interpretation of the Fourteenth Amendment in the Slaughter-House Cases, 83 U.S. 36 ( 1873 ). The cases turned on New Orleans butchers' claims that a Louisiana law creating a monopoly for the slaughter of animals in the city deprived them of their right to pursue the trade of their choice in violation of the privileges or immunities clause. Such a position arguably imperiled the states' existing “police powers” to regulate health, safety, morality, and public economy. The Court's opinion, written by Justice Samuel Miller, suggested that the amendment's impact on this existing framework would be limited. Miller and a bare majority of his brethren held that the privileges or immunities clause protected only rights that flowed directly from national—as opposed to state—citizenship.

Suffragists look on as Kentucky governor Edwin P. Morrow signs the ratification billfor the Nineteenth Amendment to the Constitution, January 6, 1920.

Suffragists look on as Kentucky governor Edwin P. Morrow signs the ratification billfor the Nineteenth Amendment to the Constitution, January 6, 1920.

Those rights, such as the use of the nation's waterways or recourse to the writ of habeas corpus, were important but few and far between. The four dissenting justices interpreted the amendment more broadly, variously claiming that the state had deprived the butchers of either “property” or “liberty” by limiting their freedom to choose the order and manner of their labor. Similar arguments gained increasing currency in subsequent decades.

In the short term, however, the Supreme Court further restricted the Fourteenth Amendment's impact in United States v. Cruikshank, 92 U.S. 542 ( 1876 ). The Court held that the Fourteenth Amendment did not “incorporate” the protections of the Bill of Rights against the states. Thus, for example, state laws infringing on an individual's ability to speak freely or own firearms did not run afoul of the US Constitution. In Cruikshank the Court also held that the amendment affected only governmental action and could not be interpreted to prohibit individual acts of discrimination.

The Court buttressed this “state action” doctrine in the Civil Rights Cases, 109 U.S. 3 ( 1883


The Fourteenth Amendment only obliquely tackled questions implicating voting rights, reducing the congressional representation of states discriminating against adult male citizens at the polls. In Minor v. Happersett, 88 U.S. 162 ( 1875 ), the Court held that the amendment did not grant women the right to vote. Although women were undoubtedly citizens, the Court reasoned, that status did not entail a positive right to vote. Instead, citizenship implied “membership of a nation, and nothing more” (88 U.S. at 166). Although some states granted women the franchise in the late nineteenth century, women did not gain the nationwide right to vote until the Nineteenth Amendment was ratified in 1920.

The Fifteenth Amendment ( 1870 ) explicitly forbade discrimination on the basis of race in elections. In United States v. Reese, 92 U.S. 214 ( 1876 ), the Supreme Court curtailed Congress's ability to enforce this amendment. The justices held that the amendment only prohibited states from overtly discriminating on the basis of race and did not empower Congress to counteract seemingly neutral state and local election laws (like poll taxes or literacy tests) that disproportionately affected African Americans. Beginning in the 1890s southern politicians used this rationale to enact a series of voter qualification laws that disenfranchised many African Americans.


Early lower and Supreme Court case law suggested that the Reconstruction Amendments might operate as a meaningful restriction on state laws more explicitly designed to discriminate against racial minorities. In Strauder v. West Virginia, 100 U.S. 303 ( 1880 ), the Court struck down a state law prohibiting blacks from serving on juries under the equal protection clause. In Yick Wo v. Hopkins, 118 U.S. 356 ( 1886 ), the Court held that ostensibly neutral laws could be unconstitutional if they were applied in a discriminatory manner.

During the 1890s southern states began adopting legislative schemes avowedly designed to segregate racial groups. The Supreme Court validated these laws in Plessy v. Ferguson, 163 U.S. 537 ( 1896 ), upholding a Louisiana law requiring separate railway cars for blacks and whites. The equal protection clause, as Justice Henry B. Brown reasoned in his opinion, permitted individuals to be separated on the basis of race, provided their treatment was otherwise equal. Justice Harlan's dissent rightly predicted that the ruling would pave the way for racial separation in most walks of life and create a form of second-class citizenship. Although the Supreme Court did not repudiate the “separate but equal” doctrine until Brown v. Board of Education, 347 U.S. 483 ( 1954 ), overturning segregation became a central focus for civil rights advocates throughout much of the twentieth century.


The Progressive movement of the late nineteenth and early twentieth centuries helped shape constitutional development during and after the period. The movement was diverse and often defied reductive generalizations. Many Progressive reformers emphasized the social and structural causes of problems like crime, poverty, and disease and sought to combat them with rationally ordered government and private programs, including public health programs and the nation's first juvenile courts. Progressive ideology was often at odds with the “classical” school of legal thought that dominated the American judiciary at the time. Progressive scholars and politicians frequently castigated judges for their purportedly formalistic methodology and their apparently doctrinaire adherence to laissez-faire economics.

In Pollock v. Farmers’ Loan & Trust, 157 U.S. 429 ( 1895 ), the Supreme Court struck down a federal law taxing income from property on the grounds that it was a direct tax, which Article I, Section 2 of the Constitution required to be apportioned among the states by population. Although the case did not strictly eliminate all federal taxes on income, a combination of populist politicians appealing to small-scale farmers and many urban Progressives subscribed to the dissenting view of Justice Brown, who wrote that the Court had rendered the federal government powerless against the nation's wealthiest individuals and businesses. The Sixteenth Amendment ( 1913 ) eventually overturned Pollock by permitting the federal government to enact direct income taxes without apportioning them by population.

1897 ), but it was the Court's decision in Lochner v. New York, 198 U.S. 45 ( 1905 ), that has given its name to this period in constitutional history. In Lochner the Court struck down a New York law limiting bakers’ working hours. In a 5–4 opinion by Justice Rufus Peckham, the Court held that the law interfered with the “liberty of contract” protected by the due process clause. Justice Oliver Wendell Holmes Jr.'s famous dissent in the case lambasted the justices for substituting their own policy preferences for those of elected legislators and for writing laissez-faire economics and social Darwinism into the Constitution.

The Supreme Court extended the liberty of contract doctrine to federal laws under the Fifth Amendment's due process clause in Adair v. United States, 208 U.S. 161 ( 1908 ). Nevertheless, the Supreme Court did not always apply Lochner's logic as a systematic check on Progressive Era police powers legislation, even where the exercises of those powers seemed to restrict personal liberty. In Jacobson v. Massachusetts, 197 U.S. 11 ( 1905 ), for example, the Court upheld a compulsory smallpox vaccination order. Likewise, the Court later permitted states to compel the sterilization of “feeble minded” individuals in Buck v. Bell, 274 U.S. 200 ( 1927 ).


The United States entered World War I on April 6, 1917. Some scholars have argued that the war represented the apotheosis of the Progressive Era, as the nation fought to bring political reform to Europe and the government took on an increasingly powerful role in domestic life. Congress passed the Espionage Act ( 1917 ) shortly after declaring war. The act prohibited individuals from interfering with military recruitment or the war effort abroad. Federal authorities prosecuted several dissidents under the act for making speeches or distributing information protesting the war or encouraging men not to enlist in the armed forces.

In Schenck v. United States, 249 U.S. 47 ( 1919 ), the Supreme Court upheld several of these convictions. Justice Holmes reasoned that the First Amendment's protection of free speech did not extend to declarations that created a “clear and present danger” of criminal activity. When a majority of the Court upheld similar convictions in the subsequent Abrams v. United States, 250 U.S. 616 ( 1919 ), however, Holmes, joined by Justice Louis Brandeis, dissented. Holmes argued that the clear and present danger standard was calculated only to allow the suppression of speech that seemed imminently likely to bring about criminal conduct. In Gitlow v. New York, 268 U.S. 652 ( 1925 ), the Supreme Court held that the First Amendment's free speech clause applied to both the state and federal courts. Nevertheless, the Court upheld laws punishing the advocacy of radical or unpopular political ideas in both Gitlow and Whitney v. California, 274 U.S. 357 ( 1927 ). The scope of protected political dissent remained a major point of contention in First Amendment jurisprudence until at least the late 1960s.


Progressive politics also relied on a strong moralistic core that sought to eradicate corruption and enhance the probity of national public life. This tendency manifested itself in both successful and failed attempts to amend the Constitution during the period. The Seventeenth Amendment ( 1913 ) required the direct election of United States senators as a cure for the perceived cronyism of the existing process of selection by state legislatures. A political coalition led by the National Reform Association narrowly failed to pass an amendment, introduced in 1914, banning polygamy on the analogous grounds that the practice fed into the corrupt domination of Mormon women by their husbands. The Eighteenth Amendment ( ratified in 1919 and taking effect in 1920 ), advocated by the temperance movement, prohibited the production and sale of alcohol on the theory that spirits caused crime and disrupted domestic harmony. Although the Supreme Court upheld the amendment's contentious ratification in Hawke v. Smith, 253 U.S. 221 ( 1920 ), prohibition proved unsuccessful as criminal syndicates stepped in to fill the demand for alcohol during the Roaring Twenties. The amendment was repealed by the Twenty-First Amendment in 1933. Finally, supporters of woman suffrage successfully lobbied for the passage of the Nineteenth Amendment in 1920 on the grounds that women's supposedly superior moral rectitude made them worthy of a say in the nation's politics.


Another amendment, proposed in 1924, failed to achieve ratification by the states. Like the Sixteenth Amendment, it began with an unpopular Supreme Court decision striking down a federal law. The federal government took an increasingly active role in regulating the national economy in the early twentieth century, leading to a series of constitutional battles over the scope of federal power. Although substantive due process remained a potential check on such legislation, federal laws faced another layer of restrictions because of the judiciary's interpretation of the interstate commerce clause.

In Hammer v. Dagenhart, 247 U.S. 251 ( 1918 1922 ), reasoning that the tax was in fact a disguised criminal fine for manufacturers. Congress subsequently sent a proposed constitutional amendment to the states empowering the federal government to regulate child labor. Although the Child Labor Amendment was ratified by twenty-eight states, with no time limit on final ratification, it failed to be ratified by any state after 1937, as the Court eventually adopted a more relaxed view of the commerce power, enabling Congress to pass new child labor laws. Immediately following Bailey, however, the justices continued to take a dim view of more expansive federal economic legislation. The Court, for example, struck down a minimum wage law for women in Adkins v. Children's Hospital, 261 U.S. 525 ( 1923 ).


The Fifteenth Amendment is ratified. 1873: The Supreme Court delivers its first major interpretation of the Fourteenth Amendment in The Slaughter-House Cases.
In Minor v. Happersett, the Supreme Court holds that the Fourteenth Amendment did not grant women the right to vote.
In United States v. Reese, the Supreme Court curtails Congress's ability to enforce the Fifteenth Amendment.
In the Civil Rights Cases, the Supreme Court strikes down the Civil Rights Act of 1875.
In Pollock v. Farmers' Trust, the Supreme Court strikes down a federal law taxing income from property on the grounds that it was a direct tax.
The Supreme Court's decision in Plessy v. Ferguson essentially endorses “separate but equal” when sustaining a Louisiana law mandating racial separation in public transportation.
In Lochner v. New York, the Supreme Court strikes down a New York law limiting bakers' working hours, holding that the law interfered with the “liberty of contract” protected by the Fourteenth Amendment's due process clause.
The Sixteenth and Seventeenth Amendments are ratified.
The United States enters World War I, and shortly after, Congress passes the Espionage Act.
In Schenck v. United States, the Supreme Court upholds several convictions obtained under the Espionage Act.
The Eighteenth and Nineteenth Amendments are ratified.
A Child Labor Amendment is proposed but fails to be ratified.
Over the next ten years, at President Franklin D. Roosevelt's behest, Congress promulgates an unprecedented array of federal economic legislation, dubbed the New Deal.
The Twentieth and Twenty-First Amendments are ratified.


This stringent approach, as taken in Adkins, became even more controversial following the collapse of the national economy in 1929. President Herbert Hoover's approach to combating the Great Depression that followed was politically unpopular, and Franklin Delano Roosevelt won a landslide majority against Hoover in the 1932 election. Under existing constitutional rules, however, Roosevelt was unable to assume power and enact the reform agenda his campaign had promised until March of the following year. This highlighted the need for a speedier and smoother succession process eventually effected by the Twentieth Amendment ( 1933 ), which changed presidential inaugurations to January 20 and provided for a succession process if the president-elect died before that time.

At Roosevelt's behest, Congress promulgated an unprecedented array of federal economic legislation throughout the 1930s dubbed the New Deal. Although New Deal programs generally sought to preserve the foundations of the American capitalist order, they fundamentally transformed the role of the federal government in that system. The Supreme Court initially reacted with hostility to these changes, striking down several laws, including the National Industrial Recovery Act and the Agricultural Adjustment Act. After winning reelection in another landslide in 1936, Roosevelt vowed to modernize the Court by adding an additional justice for each member over the age of seventy. This “Court-packing plan” proved politically unpopular and ultimately failed. Nevertheless, the justices signaled a change of direction in West Coast Hotel Co. v. Parrish, 300 U.S. 379 ( 1937 1937 ). Scholars disagree as to whether this change was prompted by Roosevelt's actions or internal considerations by the Court. Whatever the cause of this transformation, the Court did not strike down another federal law under the commerce clause until 1995.

By 1937 the American constitutional order had undergone a string of significant transformations. The Supreme Court had yet to adopt the broader interpretation of civil and political rights that categorized the next several decades. Even so, a combination of formal amendments, political movements, and jurisprudential shifts had created a framework capable of accommodating many of the challenges of the mid-twentieth century.

SEE ALSO American Constitutional Development from 1789 to 1868 ; American Constitutional Development from 1937 to 1980 ; Civil War Amendments ; Freedom of Contract ; New Deal .


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Winston A. Bowman
Brandeis University