Overruled

by Damon Root

  The celebrated Harvard law professor James Bradley Thayer, who served as a mentor to Oliver Wendell Holmes, championed an equally restrictive view of judicial power. According to Thayer, democratically enacted statutes should only be struck down in those rare instances “when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question.”37 In practical terms, this approach virtually eliminated the need for judicial review. But Thayer had no problem with that result, since he saw little reason for judges to ever intrude on the “wide margin of consideration” that must be accorded “to the practical judgment of a legislative body.”38

  Felix Frankfurter, who went on to advise President Franklin Roosevelt during the New Deal and later joined the Supreme Court as a Roosevelt appointee, not only agreed with Thayer, he took the position one step further, arguing in an unsigned New Republic editorial that the Due Process Clause should be stripped from the Constitution entirely. “We have had fifty years of experiment with the Fourteenth Amendment,” Frankfurter wrote, and what that experiment proved to him was that “no nine men are wise enough and good enough” to enjoy such powers of judicial review. “The due process clauses ought to go.”39

  Even Louis Brandeis, the Progressive lawyer and Supreme Court justice best remembered today for his civil libertarianism and early championing of privacy and “the right to be let alone,”40 favored granting broad deference to state lawmakers in most aspects of life. Brandeis even pointed to Holmes’s infamous ruling in Buck v. Bell, which upheld the forced sterilization of a teenager, as a permissible example of a state government “meeting modern conditions by regulations.”41

  And then there is the most famous Progressive of them all: Theodore Roosevelt. It should come as perhaps no surprise to find the bombastic ex-president at the forefront of the roiling debate over the courts. Roosevelt began warming to the subject as early as 1908, when he criticized the Supreme Court for having a pro-corporate bias, and then again in 1910, when he denounced Lochner as an attack on “popular rights” in a speech before the Colorado legislature. “Such decisions, arbitrarily and irresponsibly limiting the power of the people,” Roosevelt declared, “are of course fundamentally hostile to every species of real popular government.”42

  But the Rough Rider really hit his stride two years later with an essay titled “Judges and Progress” written for the Progressive magazine The Outlook, where he was listed prominently on the masthead as a contributing editor. Referring repeatedly to “the Bakeshop Case,” Roosevelt argued that if such judicial shenanigans did not stop immediately, the people would be left with no choice but to strip the courts of their independence and subject judicial decisions (and judges) to recall by popular vote. “If a majority of the people, after due deliberation, decide to champion such social and economic reforms as those we champion,” Roosevelt wrote, “they have the right to see them enacted into law and become a part of our settled government policy.”43 The people, he emphasized, “must ultimately control its own destinies, and cannot surrender the right of ultimate control to a judge.”44

  In essence, the Progressives had declared war on the Fourteenth Amendment. And their brazen assault did not go unnoticed. Among the sharpest critics of their approach was the journalist H. L. Mencken, who took aim at Progressive legal thinking while reviewing a book-length collection of Justice Holmes’s dissenting opinions. “Over and over again, in these opinions,” Mencken observed, Holmes “advocated giving the legislature full head-room, and over and over again he protested against using the Fourteenth Amendment to upset novel and oppressive laws, aimed frankly at helpless minorities.”45 That’s not responsible judging, Mencken argued, it’s a gross dereliction of basic judicial duty. “If this is Liberalism,” he declared, “then all I can say is that Liberalism is not what it was when I was young.”46

  In truth, it’s no secret why the Progressives adopted Justice Holmes as their legal standard-bearer. His belief in virtually unchecked majority rule lined up perfectly with their own plans to bring industrial society under government supervision and control. But as Mencken observed, that approach did leave something to be desired when it came to the plight of unpopular groups. What happened when the majority was willing to steamroll over minority rights and the courts were not willing to stop it?

  In Restraint of Liberty

  When President Woodrow Wilson led the United States to war against Germany in 1917, he did so in the name of making the world safe for democracy. But the former head of Princeton University was also worried about certain dangers lurking much closer to home. “There are citizens of the United States, I blush to admit,” Wilson announced, “who have poured the poison of disloyalty into the very arteries of our national life. . . . [T]he hand of our power should close over them at once.”47

  The hand of power moved swiftly. On the national level, Congress responded to Wilson’s fears by passing the Espionage and Sedition Acts, vaguely worded federal laws that effectively criminalized most forms of antiwar speech and activism. Indeed, it was the Espionage Act that landed the socialist leader Eugene Debs in federal prison for the harmless “crime” of giving a speech. But the crackdown on the radical left was just one part of Wilson’s push for homeland security, as German-born Americans and their families quickly discovered.

  “Before 1914,” the historian David M. Kennedy has written, “the Germans had been probably the most esteemed immigrant group in America, regarded as easily assimilable, upright citizens. Now they found themselves the victims of a brainless fury that knew few restraints.”48 In retrospect, some of that wartime fury now appears comical, such as when self-professed American patriots rejected the use of German-derived words and began referring to their hamburgers as “liberty sandwiches,” or when the city of Pittsburgh banned the music of Beethoven on account of the composer’s German heritage. But it was no laughing matter in April 1918 when a mob near St. Louis snatched up a young man of German descent named Robert Prager, stripped him, wrapped him in an American flag, and murdered him before a crowd of several hundred onlookers. “In spite of excesses such as lynching,” observed the Washington Post, in a report filed after several of the mob’s alleged ringleaders were acquitted of Prager’s killing, “it is a healthful and wholesome awakening in the interior of the country.”49

  “Witch hunt” would be a more accurate term for it. Across the nation, Americans of German descent suffered a catalogue of abuses, ranging from loyalty oaths administered at government jobs to discriminatory treatment by state officials to violent attacks by vigilantes. In Nebraska, the state legislature got in on the act with a law banning both public and private school teachers from instructing young children in a foreign language. Although it did not say so explicitly, the statute’s primary target was the state’s system of Lutheran parochial schools, where both teachers and students commonly spoke German. One such instructor, Robert Meyer, who taught the Bible in German at a school run by the Zion Evangelical Lutheran Congregation, challenged the statute for violating his rights. He started out in state court, but the Nebraska Supreme Court soon ruled against him. “The salutary purpose of the statute is clear,” that Court held. “The legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.”50 Meyer then appealed his loss to the U.S. Supreme Court, where, in a notable rejection of democracy, he won.

  The Due Process Clause of the Fourteenth Amendment, declared the opinion of Justice James C. McReynolds, clearly secured Meyer’s right to earn a living by teaching the Bible in his native tongue, no matter what a majority of his neighbors happened to think about it. By the same token, it also covered the right of parents to educate their children in a foreign language. The Fourteenth Amendment’s protection of liberty “denotes not merely freedom from bodily restraint,” McReynolds explaine
d, “but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”51

  Today, Meyer v. Nebraska is largely remembered as an early victory for civil liberty against mob rule, which it surely was. Yet it was also a victory for economic liberty against overreaching regulation. Notice the shades of both Corfield v. Coryell (the Circuit Court case cited by the Fourteenth Amendment’s authors) and Stephen Field’s Slaughter-House dissent in McReynolds’s sweeping invocation of liberty. What’s more, McReynolds’s unabashedly libertarian ruling cited the precedent set in Lochner v. New York. In Meyer, civil and economic liberty did not just rest side-by-side, they were deeply entwined in every aspect of the case.

  So of course Justice Holmes cast a dissenting vote. In his view, the anti-German majority ought to have its way. “I am unable to say the Constitution of the United States prevents the experiment being tried,”52 Holmes explained in a companion case, Bartels v. Iowa, which dealt with a similar state ban on foreign-language teaching. As Holmes saw it, the Fourteenth Amendment offered no impediment to a state legislature’s ability to “experiment” with limiting the language of its young citizens. Among the leading Progressives who sided with Holmes was Felix Frankfurter, who said he would rather see the language ban remain in force instead of “lodging that power in those nine gents at Washington.”53

  Holmes’s dissent in Meyer was an ugly lesson in how judicial restraint could allow state-sanctioned discrimination to thrive. But no case from that era illustrates this lesson better than Buchanan v. Warley, in which the Supreme Court was confronted with a popularly enacted Jim Crow law segregating residential housing blocks by race. Before we turn to the facts of that landmark case, however, let’s take the opportunity to meet one of the main figures responsible for bringing it about: Moorfield Storey, the libertarian lawyer who argued and won Buchanan before the Supreme Court in his capacity as the first president of the National Association for the Advancement of Colored People (NAACP). If today’s libertarian legal movement had a patron saint, Moorfield Storey would be it.

  The Libertarian Lawyer

  Born in Roxbury, Massachusetts, in 1845, Moorfield Storey presents a direct link in time between the free labor philosophy of the nineteenth century and the libertarian constitutionalism that emerged in the twentieth. A fierce critic of imperialism, militarism, and executive power,54 Storey was a founder and president of the Anti-Imperialist League, which opposed U.S. annexation of the Philippines after the Spanish-American War of 1898 and counted Mark Twain, Andrew Carnegie, and President Grover Cleveland among its members. An advocate of free trade, liberty of contract, and the gold standard, Storey also helped organize the independent National Democratic Party, also known as the Gold Democrats, who fought the anti-gold populist William Jennings Bryan’s Democratic presidential bid in 1896.55 An individualist and anti-racist, Storey led the NAACP to its first major Supreme Court victory in Buchanan v. Warley.

  But before all of that, Storey got his initial start in public life back in 1868 when he served as the personal secretary to Senator Charles Sumner, the legendary Massachusetts abolitionist whose fiery attacks on the peculiar institution inspired one of the most notorious events in congressional history. In 1856, a pro-slavery Congressman named Preston Brooks beat Sumner senseless on the floor of the Senate over Sumner’s insulting characterizations of the slaveholding South. Severely injured by the attack, Sumner would spend three years recuperating before he was finally able to return to Congress. Storey, who later wrote an incisive biography56 of Sumner’s life and career, would remain under the influence of his old boss’s abolitionist principles for the rest of his life.57

  Storey put those principles to good use when the case of Buchanan v. Warley reached the Supreme Court in 1917. At issue was a Louisville, Kentucky, ordinance segregating residential housing blocks by race. Enacted “to prevent conflict and ill-feeling between the white and colored races,”58 the law made it illegal for blacks to live on majority-white blocks and for whites to live on majority-black blocks. To test the law, William Warley, the head of the Louisville chapter of the NAACP, arranged to buy property on a white block from a white real estate agent named Charles H. Buchanan, also an opponent of the law. When Warley “learned” that he could not live on the property he was purchasing, he refused to complete payment. Buchanan then sued, but the Kentucky courts ruled against him, upholding the ordinance. NAACP president Storey, joined by Louisville attorney Clayton B. Blakely, took the case to the Supreme Court.

  In their brief, Storey and Blakely denounced residential segregation as a racist interference with economic liberty. The Louisville law “prevents the plaintiff from selling his property for the only use to which it can be put,” they wrote. “It thus destroys, without due process of law, fundamental rights attached by law to ownership of property.” Furthermore, the law’s true purpose was not “to prevent conflict and ill-feeling,” as it claimed, but rather “to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter.”59 Were such a restriction upheld, they argued, “an attempt to segregate Irish from Jews, foreign from native citizens, Catholics from Protestants, would be fully as justifiable.”60 Among the legal authorities cited by the brief is none other than the Lochner case, then the Court’s most famous decision protecting economic liberty from state legislation.

  In its Buchanan brief, the state of Kentucky took a dimmer view of property rights and economic liberty. Advocating judicial restraint, the state argued that the Court should defer to local judgment and stay out of the matter entirely. “Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object,” the brief argued, “is a legislative and not a judicial question.”61 Furthermore, “the injury [to property rights] is merely incidental to the city’s right to segregate, and does not warrant the overthrow of police regulations.” As for Storey and Blakely’s contention that the law forced blacks to inhabit the city’s worst neighborhoods, “the improvement of the negro’s condition is limited only by his own character and efforts.”62

  The Supreme Court disagreed. “Property is more than the mere thing which a person owns,” Justice William Day held for the unanimous body. “It is elementary that it includes the right to acquire, use, and dispose of it.”63 Accepting Storey’s argument that the ordinance was racist in intent, Justice Day held that the Fourteenth Amendment “operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.”64

  Storey was justifiably thrilled at the victory. “I cannot help thinking it is the most important decision that has been made since the Dred Scott case,” he wrote to NAACP disbursing treasurer and fellow Gold Democrat Oswald Garrison Villard (the grandson of abolitionist William Lloyd Garrison), “and happily this time it is the right way.”65 W. E. B. Du Bois, editor of the NAACP newsletter, The Crisis, heartily agreed, crediting Buchanan with “the breaking of the backbone of segregation.”66 In fact, as one legal scholar has argued, “though it was not used to its full potential, Buchanan almost certainly prevented governments from passing far harsher segregation laws [and] prevented residential segregation laws from being the leading edge of broader anti-negro measures.”67

  It was a major triumph for individual rights under the Fourteenth Amendment and also the first significant victory for the young NAACP, which went on to become the most influential civil rights organization in the country. And once again, Justice Oliver Wendell Holmes wrote a dissenting opinion, except this time he decided no
t to file it and instead voted silently with the majority (for reasons that remain unknown). In the draft of that dissent, however, Holmes took his usual majoritarian position. He began by suggesting that the Supreme Court should dismiss the suit unless the NAACP provided “some evidence that this is not a manufactured case.” Turning next to the constitutional merits, he maintained that Kentucky had every authority to regulate property in this manner. “The value of property may be diminished in many ways by ordinary legislation as well as by the police power,” he wrote. An earlier draft of the dissent also contained this sentence, later removed by Holmes from the final, unpublished draft: “The general effect of the ordinance is supposed to be beneficial to the whites for the same reasons that make it bad for the blacks.”68 In other words, as Holmes had put it on an earlier occasion, “It is no sufficient condemnation of legislation that it favors one class at the expense of another,”69 since all legislation boils down to one group imposing its will on other groups. All things considered, the unpublished dissent was a prime example of Holmes’s typical deference to lawmakers. The only surprise is that he failed to practice the judicial restraint he normally preached and instead went along quietly with Buchanan’s libertarian approach. Perhaps even Holmes had to flinch at the idea of casting a lone vote in favor of Jim Crow.

  Holmes and the New Deal

  In 1931, to celebrate the occasion of Justice Oliver Wendell Holmes’s ninetieth birthday, Harvard law professor Felix Frankfurter put together a book-length collection of tributes to his friend and mentor. Published by the New York firm of Coward-McCann, Mr. Justice Holmes featured contributions from a virtual who’s who of Progressive intellectuals, all lined up in honor of the elder jurist. The philosopher John Dewey, for example, celebrated Holmes as “the most distinguished of the legal thinkers of our country.”70 Federal Appeals Court Judge Learned Hand praised Holmes for “the capaciousness of his learning, the acumen of his mind . . . his freedom from convention.”71 Benjamin Cardozo, who would soon take Holmes’s place on the Supreme Court, said he “gives us glimpses of things eternal”72 and is “the greatest of our age in the domain of jurisprudence, and one of the greatest of the ages.”73 Frankfurter himself simply gushed, “to quote from Mr. Justice Holmes’ opinions is to string pearls.”74