The Chief Justiceship of Melville W. Fuller, 1888-1910

6. Civil Liberties, Equal Rights, and Criminal Justice

6 CIVIL LIBERTIES, EQUAL RIGHTS, AND CRIMINAL JUSTICE Although the Fuller Court was willing to give heightened protection to the rights of property owners and the operation of the national market , the justices were generally unconcerned with guarding other asserted rights from government regulation. Hence the Supreme Court during Fuller's tenure displayed little sympathy for the claims of racial minorities, women, criminal defendants, dissidents, or individuals who breached accepted codes of moral behavior. Several factors account for this aloof judicial attitude. One root cause was the Fuller Court's profound commitment to federalism. With the important exception of the just compensation requirement, the justices steadfastly maintained that the guarantees of the Bill of Rights did not extend to the states. Despite adoption of the Fourteenth Amendment, the Court continued to view the states as the primary protectors of individual rights. Moreover, the Fuller Court's treatment of minorities and criminal defendants reflected the larger societal currents of the era. The justices shared the dominant public understanding with respect to personal status, race relations, and crime control. Consequently, they were disinclined to interfere with local autonomy in these areas. As a result, the Fuller Court's record on civil liberties issues seems dismal in terms of modern constitutional liberalism. It has often been censured for inadequately safeguarding noneconomic liberties.l While this criticism is justified to some extent, it can be overdrawn. Any assessment of the performance by Fuller and his colleagues must take into account the political constraints that limited the range of effectivejudicial behavior . Further, one must bear in mind that the justices upheld many restrictions on private economic activity. It was hardly remarkable, therefore, 1. John P. Roche, "Civil Liberty in the Age of Enterprise," 31 University of Chicago Law Review 103 (1963). 150 CIVIL LIBERTIES, EQUAL RIGHTS, AND CRIMINAL JUSTICE 151 that the Court would similarly recognize broad governmental authority to control other types of individual conduct. Finally, in a few cases the Supreme Court under Fuller gave a generous reading to provisions of the Bill of Rights and cautiously pointed toward a more expansive judicial role in protecting individuals. PUBLIC MORALS AND HEALTH The time-honored American inclination to regulate public morals found new expression in the late nineteenth century. The social disrup- . tions of the era fueled the passage of state legislation to control individual behavior by imposition of a social code. Justified as an exercise of the police power to protect the interests of society, such regulations often clashed with minority values and claimed individual liberties.2 Yet Americans of the late nineteenth century placed little premium on the supposed right of individuals to live according to their personal notions of morality. Instead, as Michael Les Benedict has cogently observed, they believed that society "had a legitimate interest in promoting morality, suppressing immoral behavior, and fostering those institutions that inculcated moral virtue."3 Reflecting this sentiment, Fuller and his colleagues consistently repulsed attacks against morals and health laws and allowed the states wide discretion to control individual behavior. For instance, in Petit v. Minnesota (1900) the justices unanimously upheld a state law prohibiting most work on Sundays as an appropriate exercise of the police power. Accepting the contention that the statute was designed to insure workers a day of rest, Fuller, speaking for the Court, ruled that the legislature could direct the closing of barbershops on Sunday. The Court also permitted the states to control prostitution. This was established in L'Hote v. New Orleans (1900), in which Justice David J. Brewer declared that New Orleans could establish a red-light district. Brushing aside objections from property owners within the district who feared that the ordinance destroyed the pecuniary value of their property, Brewer noted that "one of the difficult social problems of the day is what shall be done in respect to those vocations which minister to and feed upon human weaknesses, ap2 . Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge , Mass.: Harvard University Press, 1977), 59-94. 3. Michael Les Benedict, "Victorian Moralism and Civil Liberty in the Nineteenth-Century United States," in Donald G. Nieman, ed., The Constitution, Law, and American Life: Critical Aspects of the Nineteenth-Century Experience (Athens: University of Georgia Press, 1992), 104. 152 THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 petites and passions."4 This approach to prostitution, he concluded, was a valid exercise of the police...