Pox_ An American History - Michael Willrich [176]
By the late 1890s, having largely repudiated the civil rights of African Americans, the U.S. Supreme Court was reading broad economic liberties into the Constitution via the Fourteenth Amendment’s due process clause. Several key opinions were written by a newcomer to the Court, Justice Rufus Peckham. In Allgeyer v. Louisiana (1897), the Court invalidated a Louisiana statute regulating out-of-state insurance companies that did business in the state. In his opinion for the Court, Peckham imported the controversial new doctrine of “liberty of contract” into the Constitution: The liberty mentioned in [the Fourteenth Amendment] means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of his faculties; to be free to use them in lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.
By itself, Allgeyer did not spark a revolution in jurisprudence. During the next several years, the Court upheld a good deal of social legislation, including a Colorado law (upheld over the dissents of Justice Peckham and Justice David Brewer) that forbade the employment of workers in mines for more than eight hours per day. But Peckham’s expansive vision of economic liberty foretold the Court’s increasing willingness to assume the very role that Justice Miller had warned against in Slaughter-House: a “perpetual censor” on state legislation that interfered with individual liberty.54
At the turn of the century, the rising generation of progressive intellectuals and activists regarded such talk of a constitutionally protected sphere of individual liberty with great skepticism. The United States had become a “modern,” urban-industrial society, they observed. The emergence of a national economy—bound by railroads, built by corporate might and wage labor, and giving rise to a new density of urban life—fostered a new era of human association and social responsibility. Leading progressives from Jane Addams of Chicago to Louis Brandeis of Boston valued social interdependence over personal autonomy. The legal scholar Roscoe Pound and the philosopher John Dewey argued that individual rights existed not for themselves but because they served important social interests. Under the press of urban-industrial social conditions, the progressives argued, “real liberty” meant more than freedom from government.55
Outlook magazine, a leading organ of progressive opinion, expressed the position well. “In our time the man of progressive temperament is an advocate of organization, the man of conservative temper is an individualist,” the magazine said. “Real liberty for the laborer requires labor organization; real liberty of travel requires government control of the instruments of travel; real liberty in food, clothing, and home requires law to guard against disease and death, threatened by conditions of modern society; real liberty to speak and teach effectively requires organization, educational and religious.” In a time when the crowded conditions of everyday urban life evoked the inescapable social connectedness of an epidemic, progressives took up the germ theory as a powerful political metaphor. From the cities to the statehouses to Washington, the reformers decried prostitution, sweatshops, and poverty as “social ills.” A stronger state, they said, held the “cure.”56
With good reason, progressives