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By Root 288 0

Amendment defended the pre–Civil War status quo, the dissenting opinions written by Justice Stephen Field and Justice Joseph Bradley mapped out a new direction in American constitutional jurisprudence. Field and Bradley took aim at the state-created monopoly as a violation of fundamental economic rights. As Field put it, under the “pretense” of a sanitary regulation, the legislature had unjustly invaded the butchers’ “right to pursue a lawful and necessary calling”—a liberty and property right protected from state interference by the due process clause. During the next thirty years, the Field and Bradley dissents—and particularly their close identification of “due process” with economic liberty—would become key weapons in the constitutional attack on state social legislation.50

Industrialization had a greater immediate impact upon the police power and its constitutional status than did the Civil War. The police power exploded in the postwar decades, as organized labor and social reformers pushed state legislatures to regulate some of the worst human consequences of America’s dramatic and often violent transformation into an urban-industrial society. “The law of the police power is practically a growth of the last thirty or forty years,” the progressive University of Chicago legal scholar Ernst Freund observed in his authoritative 1904 treatise The Police Power, “and much of it remains unsettled.” Freund’s tome covered everything from the control of monopolies to the suppression of labor strikes. The field of public health and safety alone comprised an extraordinary range of government activities, many of them new: medical inspection of immigrants at the nation’s ports, factory regulations in the industrial heartland, tenement laws and pure milk standards in the cities. Much of the social legislation supported by labor-friendly progressive reformers was justified by state lawmakers on the grounds that it promoted the public health—a claim that made many such laws vulnerable to constitutional challenge when the connection between the state action and the health of the public was at all controversial or indirect.51

As the reach of the police power grew, so did the number of constitutional challenges to it. During the 1880s and ’90s, plaintiffs, lawyers, treatise writers, and, increasingly, state supreme court judges emphasized the supposedly timeless “constitutional limitations” on the police power. Traces of these arguments could be seen in the prewar period (almost invariably on the losing side of cases), but they were largely a product of the late nineteenth-century struggle over the political economy of industrialism. Building upon the foundation laid by Justices Field and Bradley in their Slaughter-House dissents, critics of regulation breathed a new meaning into the due process clauses of the state and federal constitutions. Those clauses—forbidding government to deprive a person of life, liberty, or property without due process of law—had their origin in the ancient English Magna Carta, and they had long been understood by American courts as guaranteeing good common law procedure. The passage of reasonable legislation, its enforcement by duly constituted public officers, the right of a defendant to a fair trial—that was the essence of due process. The police power was not at odds with due process, as pre–Civil War judges like Lemuel Shaw understood it. In a fundamental respect, the police power was due process. In late nineteenth-century America, the due process clauses were taking on a broader meaning—as critics of government regulation used them to define the substance of the life, liberty, and property rights that could not be invaded, under almost any circumstances, by the state.52

Judges did not simply upend a century of jurisprudence to clear the way for a business-friendly laissez-faire constitutionalism. But dozens of hard-fought labor laws, whether a New York ban on tenement sweatshops or an Illinois eight-hour law for female factory workers, met an untimely death in a state supreme court for interfering