A Patchwork Oligarchy: State Court Approaches to the Police Power During the Progressive Era

by Joseph A. Ranney

Abstract

During the Progressive Era (1890-1920), reform-minded politicians and jurists criticized court decisions cabining legislative use of the police power to meet the needs of a society and economy increasingly based on collective rather than individual forces. Many accused the courts of using doctrines (collectively labeled substantive due process) to preserve an inequitable economic and political order; others argued that the courts’ decisions were legally principled, not political. The debate continues to this day. Most scholars have concentrated on federal rather than state court decisions and have failed to test each side’s arguments through systematic analysis of court decisions. This article is an initial effort to fill both gaps.

The article examines the Supreme Court decisions of six states—New York, Ohio, Illinois, North Carolina, Colorado and California—from multiple perspectives including the proportion of police-power laws each of these courts struck down over the course of the Progressive Era, and their approaches to different categories of laws that came before them for constitutional review. The six courts listened to Progressive criticisms: as those criticisms peaked (1909-1913) the courts’ strike-down rates began to decline, and they continued to do so until the end of the Era in 1920. Judicial use of the doctrine most frequently invoked in striking down police-power laws, namely due process as a shield of property and liberty rights, also declined.

Not all categories of police-power laws met with judicial hostility. Business regulation laws, labor laws, and laws authorizing government enterprises were the most likely to be struck down, but public health and safety laws and sumptuary laws received substantial judicial deference throughout the Progressive Era. There was also variation among the six states. Five followed the pattern of strike-down rate decline during the late Progressive Era but at different paces, and North Carolina’s Supreme Court maintained a very low rate throughout the Era. It remains to be seen whether other state courts responded to Progressive criticisms in similar ways, but the consistency of patterns among six states from different regions suggests that that may be the case.