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

3. Conservative Jurisprudence in the Age of Enterprise

3 CONSERVATIVE JURISPRUDENCE IN THE AGE OF ENTERPRISE When Fuller became chiefjustice in 1888 the United States was experiencing sweeping social and economic change. This transformation generated a variety of novel and vexing issues that eventually found their way to the Supreme Court. A NATION TRANSFORMED The most conspicuous change in the country during this period was the swift growth of industry and large-scale corporate enterprise. Industrial productivity and national wealth rose markedly in the decades following the Civil War. Manufacturing eclipsed agriculture as the primary source of wealth. By 1900 the United States had become the foremost industrial nation in the world. Railroads, America's first big business, forged a national market for goods, tied farming communities and small towns to urban centers, and drew farmers into the market economy. This spectacular economic spurt was fueled largely by private investment capital, not government aid. l A steady flow of investment capital was essential to finance industrial development. Much of the necessary capital was provided by European investors. Banks and insurance companies were another important source of capital. Corporate profitability, of course, was the key to attracting these investment funds. The consequences of this economic change were far-reaching. With the stimulus of industrialization, rapid urban growth ensued. People relentlessly migrated from farm to city, joining new immigrants in the pursuit of greater economic opportunities. The urban share of the 1. Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge , Mass.: Harvard University Press, 1977), 372. I have relied on Keller's excellent work here and elsewhere in this chapter. 57 58 THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 population climbed steadily during the late nineteenth century. In Chicago , for instance, the population trebled between 1880 and 1900. Such pell-mell growth caused overcrowded housing and public health problems . City leaders struggled to provide housing, public works, and water and sewer services to the burgeoning urban population. Yet effective municipal government was often hampered by ethnic and class divisions among the residents. As urban areas grew, the cultural gap between city and country increased markedly. The distribution of wealth generated by the new industrial order was also a concern. Although many Americans prospered during the late nineteenth century and property ownership was widespread, there were fears about an increasing economic disparity. Historians have debated whether the proportionate income of the wealthy actually grew during the Gilded Age,2 but reformers charged that there was an undue concentration of money and power in the hands of the rich. The federal government was financed almost entirely by excise taxes and customs duties. Yet pressure would build in the early 1890s for an income tax as a means of reducing the tariff and redistributing wealth. As business became larger, employment relations were fundamentally altered. Corporate employees frequently worked in an impersonal environment and had little bargaining power to improve their working conditions . Relatively few employees were members of labor unions, and thus employers could effectively dictate wages and other terms of employment . A ten-hour workday was common. Workplace safety, too, became an issue. Early factories were often dangerous, and many workers were injured on the job. Work on railroads was particularly hazardous. Fixing responsibility for the costs of accidents posed a major challenge for the legal system. The victims·of industrial and railroad accidents instituted numerous lawsuits for negligence, but common-law doctrines limited employer liability. As a consequence, many injured employees received no compensation. In addition to economic changes, the United States experienced massive immigration in the late nineteenth century. To the consternation of many old-stock Americans, the majority of the new immigrants came from southern and eastern Europe. A growing number of Americans questioned the traditional policy of open immigration. Critics linked unrestricted immigration with radicalism, crime, and a host of social ills. Organized labor feared the loss of jobs and a declining wage level as a 2. Lee C. Soltow, "Evidence on Income Inequality in the United States, 1866-1965," 29 Journal ofEconomic History 279-286 (1969). CONSERVATIVE JURISPRUDENCE IN THE AGE OF ENTERPRISE 59 result of competition with newcomers. In response to these concerns, Congress gradually tightened the laws governing immigration. Immigrants from China and Japan were particularly resented. There was a persistent clamor to halt further Chinese immigration and restrict the Chinese already living in the country. In 1882 and again in 1892 Congress passed Chinese exclusion...