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00:00:11From 1861 to 1865, Americans spilled precious blood over questions that had divided the
00:00:18nation and tormented the Supreme Court. Slavery, states' rights, and federal powers.
00:00:27Swaths of the South were laid to waste in the Civil War, families on both sides destroyed.
00:00:35Old ways of life, old certainties, were swept away.
00:00:44Nearly every American was somehow changed by that war, including the men who would shape
00:00:50the Supreme Court from Reconstruction to the New Deal.
00:00:55Even as the war raged, a maverick 46-year-old California judge named Stephen J. Field was
00:01:01elevated to the Supreme Court by President Abraham Lincoln, who needed to keep the nation's
00:01:06richest state tethered to the Union.
00:01:10John Marshall Harlan, a pro-slavery and pro-Union lawyer from the border state of Kentucky,
00:01:15was forced to choose a side. And 19-year-old Oliver Wendell Holmes Jr. signed on to fight
00:01:23with the Massachusetts 20th. He would never be the same.
00:01:28Holmes went into the Civil War as a great idealist. He was a dedicated abolitionist. He believed
00:01:36that the war was being fought for the freedom of black people.
00:01:39It was a chivalric mission. That was the way they described it. They thought of themselves
00:01:45as a species of knights going on a crusade. And then he gets down there and he realizes
00:01:51this is very far from being a crusade.
00:01:54There were hundreds and hundreds of regiments in the Civil War. The Massachusetts 20th, I think,
00:02:00was maybe the fifth of all of these hundreds and hundreds in terms of casualties. Five-eighths of the
00:02:07soldiers in the regiment were wounded or got killed.
00:02:12He writes a letter to his mother saying,
00:02:15nearly every man I've liked and admired has been killed. So it's just a carnage for him.
00:02:23He lost whatever idealism he had going in, which certainly took a deep beating in the war. But he
00:02:29speaks very profoundly, very movingly about the beauty of the struggle. The fact that people would rush
00:02:36into battle, that he was rushing into battle on behalf of this idea, this idea of union,
00:02:42that men were willingly giving up their lives for that, I think he never got over that. He never
00:02:49understood that fully or could comprehend the mystery of that to him.
00:02:55The one thing that he did come away with, and it also becomes a key to his jurisprudence,
00:03:02is the sort of nobility of the struggle. It's the struggle that counts.
00:03:22The carnage that Oliver Wendell Holmes had witnessed was only a small window on the enormity of the
00:03:27civil war. When it was over, 600,000 men have perished. But the union held, and the constitution,
00:03:36like the nation, was reborn. The 13th, 14th and 15th amendments together, but above all the 14th
00:03:44amendment, is the fruit of the civil war. It is what all those brave men fought for and died for.
00:03:54The 14th amendment says, the federal government is going to protect your citizenship even in your
00:04:00state. The federal government is going to protect you against your own state. No state shall make
00:04:05or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
00:04:11The thing about the 14th amendment is, it's written in general terms. It's not couched in racial terms,
00:04:18it's not couched in gender terms, it's couched in universal terms. Citizens have privileges and
00:04:25immunities. People have rights to equal protection and due process. So, while it is historically tied to
00:04:34the reconstruction acts of the time, the language of the 14th amendment admits of a broader range of
00:04:42interpretation. If the intended beneficiaries of the amendment were open-ended, the benefits
00:04:48themselves were maddeningly vague. What are the privileges or immunities of citizenship? What
00:04:54fundamental rights comprise liberty? How far could the federal government go to secure for citizens
00:05:00equal protection of the law? For the next 70 years, as a rollicking new nation rose from the ash of
00:05:07war,
00:05:08it would fall to the Supreme Court to attach specific meaning and substance to those arguable 14th
00:05:14amendment phrases. The task would swell the influence of the court and invite remarkable judicial
00:05:22creativity. By the time the 14th amendment was passed in 1868, the Supreme Court had a new home. It still
00:05:32didn't have its own building, but met in the old senate chamber in the capital, where it conducted its
00:05:37business in the shadow of the forceful new post-war congress. The 14th amendment gave congress explicit
00:05:44powers to enforce the rights of former slaves in even the most resistant rebel states. And the
00:05:50republican-controlled congress exercised those powers during reconstruction, installing federal troops in
00:05:56the south and passing laws that guaranteed blacks access to public education, the right to serve on
00:06:02juries, testify in court, and vote in elections. People began to sort of go about trying to make
00:06:09themselves into citizens with the backing of the federal government, they thought. People were flooding
00:06:15to get married, to try to do all of the things that were denied to them during slavery. People bought
00:06:21property thinking that their property would be protected, tried to start businesses, tried to get
00:06:25education. This is a new covenant. Voter roles filled with former slaves. Hundreds of black candidates won
00:06:34political office in the 1870 elections. And when the white backlash in the south turned lethal,
00:06:40congress made a show of strength, enacting legislation to protect blacks from clansmen and other vigilante
00:06:46groups. In 1875, even as white resistance hardened and former confederates began to take back power in the
00:06:56southern states, radical republicans in congress passed a sweeping civil rights act. The most important
00:07:03provisions are the ones dealing with access to public accommodations. Places of public accommodation are
00:07:10named places of public accommodation for a reason. They're generally open to the public.
00:07:14Theatres, hotels, restaurants, railroad transportation.
00:07:31From 1861 to 1865, Americans spilled precious blood over questions that had divided the nation
00:07:38and tormented the Supreme Court. Slavery, states rights, and federal powers.
00:07:47Theatres, states, and federal powers. Swaths of the south were laid to waste in the civil war.
00:07:51Families on both sides destroyed.
00:07:55Old ways of life, old certainties, were swept away.
00:08:04Nearly every American was somehow changed by that war,
00:08:08including the men who would shape the Supreme Court from Reconstruction to the New Deal.
00:08:15Even as the war raged, a maverick 46-year-old California judge named Stephen J. Field was
00:08:21elevated to the Supreme Court by President Abraham Lincoln, who needed to keep the nation's richest
00:08:26state tethered to the Union.
00:08:30John Marshall Harlan, a pro-slavery and pro-union lawyer from the border state of Kentucky,
00:08:35was forced to choose a side. And 19-year-old Oliver Wendell Holmes, Jr., signed on to fight with the
00:08:43Massachusetts 20th. He would never be the same.
00:08:48Holmes went into the civil war as a great idealist. He was a dedicated abolitionist.
00:08:55He believed that the war was being fought for the freedom of black people.
00:08:59It was a chivalric mission. That was the way they described it. They thought of themselves as a
00:09:05species of knights going on a crusade. And then he gets down there and he realizes this is very far
00:09:12from being a crusade. There were hundreds and hundreds of regiments in the Civil War.
00:09:18The Massachusetts 20th, I think, was maybe the fifth of all of these hundreds and hundreds
00:09:24in terms of casualties. Five-eighths of the soldiers in the regiment were wounded or got killed.
00:09:32He writes a letter to his mother saying,
00:09:34nearly every man I've liked and admired has been killed. So it's just, it's just a carnage for him.
00:09:43He lost whatever idealism he had going in, which certainly took a deep beating in the war,
00:09:48but he speaks very profoundly, very movingly about the beauty of the struggle. The fact that people
00:09:55would rush into battle, that he was rushing into battle, on behalf of this idea, this idea of union,
00:10:02that men were willingly giving up their lives for that, I think he never got over that. He never
00:10:09understood that fully or could comprehend the mystery of that to him.
00:10:15The one thing that he did come away with, and it also becomes a key to his jurisprudence,
00:10:22is the sort of nobility of the struggle. It's the struggle that counts.
00:10:42The carnage that Oliver Wendell Holmes had witnessed was only a small window on the enormity of the civil war.
00:10:49When it was over, 600,000 men have perished. But the union held, and the constitution, like the nation, was
00:10:58reborn.
00:10:59The 13th, 14th, and 15th.
00:11:14From 1861 to 1865, Americans spilled precious blood over questions that had divided the nation and
00:11:21tormented the supreme court. Slavery, states rights, and federal powers.
00:11:29Swaths of the south were laid to waste in the civil war. Families on both sides destroyed.
00:11:38Old ways of life, old certainties, were swept away.
00:11:47Nearly every American was somehow changed by that war, including the men who would shape the Supreme
00:11:53Court from Reconstruction to the New Deal.
00:11:57Even as the war raged, a maverick 46-year-old California judge named Stephen J. Field was
00:12:04elevated to the Supreme Court by President Abraham Lincoln, who needed to keep the nation's richest
00:12:09state tethered to the Union. John Marshall Harlan, a pro-slavery and pro-union lawyer from the border
00:12:17state of Kentucky, was forced to choose a side. And 19-year-old Oliver Wendell Holmes Jr. signed on to
00:12:25fight with the Massachusetts 20th. He would never be the same.
00:12:31Holmes went into the Civil War as a great idealist. He was a dedicated abolitionist.
00:12:38He believed that the war was being fought for the freedom of black people.
00:12:42It was a chivalric mission. That was the way they described it. They thought of themselves as a
00:12:48species of knights going on a crusade. And then he gets down there and he realizes this is very far
00:12:54from being a crusade. There were hundreds and hundreds of regiments in the Civil War. The Massachusetts
00:13:0120th, I think, was maybe the fifth of all of these hundreds and hundreds in terms of casualties.
00:13:08Five-eighths of the soldiers in the regiment were wounded or got killed.
00:13:14He writes a letter to his mother saying, nearly every man I've liked and admired has been killed.
00:13:21So it's just a carnage for him.
00:13:25He lost whatever idealism he had going in, which certainly took a deep beating in the war. But he
00:13:31speaks very profoundly and very movingly about the beauty of the struggle. The fact that people would
00:13:38rush into battle, that he was rushing into battle on behalf of this idea, this idea of union, that men
00:13:46were willingly giving up their lives for that, I think he never got over that. He never understood
00:13:52that fully or could comprehend the mystery of that to him.
00:13:58The one thing that he did come away with, and it also becomes a key to his jurisprudence,
00:14:04is the sort of nobility of the struggle. It's the struggle that counts.
00:14:25The carnage that Oliver Wendell Holmes had witnessed was only a small window on
00:14:29the enormity of the Civil War. When it was over, 600,000 men had perished. But the Union held,
00:14:37and the Constitution, like the nation, was reborn.
00:14:42The 13th, 14th, and 15th Amendments together, but above all the 14th Amendment,
00:14:47is the fruit of the Civil War. It is what all those brave men fought for and died for.
00:14:56The 14th Amendment says, the federal government is going to protect your citizenship, even in your
00:15:02state. The federal government is going to protect you against your own state. No state shall make
00:15:08or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
00:15:14The thing about the 14th Amendment is, it's written in general terms. It's not couched in racial terms,
00:15:20it's not couched in gender terms, it's couched in universal terms. Citizens have privileges and
00:15:27immunities. People have rights to equal protection and due process. So, while it is historically tied to
00:15:37the Reconstruction Acts of the time, the language of the 14th Amendment admits of a broader range of
00:15:44interpretation. If the intended beneficiaries of the Amendment were open-ended, the benefits
00:15:50themselves were maddeningly vague. What are the privileges or immunities of citizenship? What
00:15:56fundamental rights comprise liberty? How far could the federal government go to secure for citizens
00:16:03equal protection of the law? For the next 70 years, as a rollicking new nation rose from the ash of
00:16:10war,
00:16:11it would fall to the Supreme Court to attach specific meaning and substance to those arguable 14th
00:16:16Amendment phrases. The task would swell the influence of the Court and invite remarkable judicial creativity.
00:16:28By the time the 14th Amendment was passed in 1868, the Supreme Court had a new home. It still didn't
00:16:35have
00:16:35its own building, but met in the old Senate chamber in the Capitol, where it conducted its business,
00:16:40in the shadow of the forceful new postwar Congress. The 14th Amendment gave Congress explicit powers to
00:16:47enforce the rights of former slaves in even the most resistant rebel states. And the Republican-controlled
00:16:54Congress exercised those powers during Reconstruction, installing federal troops in the South, and passing
00:17:00laws that guaranteed blacks access to public education, the right to serve on juries, testify in court, and vote in
00:17:07elections. People began to sort of go about trying to make themselves into citizens with the backing of
00:17:14the federal government, they thought. People were flooding to get married, to try to do all of the
00:17:19things that were denied to them during slavery. People bought property thinking that their property
00:17:25would be protected, tried to start businesses, tried to get education. This is a new covenant.
00:17:30Voter roles filled with former slaves. Hundreds of black candidates won political office in the 1870
00:17:38elections. And when the white backlash in the South turned lethal, Congress made a show of strength,
00:17:44enacting legislation to protect blacks from Klansmen and other vigilante groups.
00:17:52In 1875, even as white resistance hardened and former Confederates began to take back power in the
00:17:58southern states. Radical Republicans in Congress passed a sweeping Civil Rights Act.
00:18:05The most important provisions are the ones dealing with access to public accommodations.
00:18:10Places of public accommodation are named places of public accommodation for a reason. They're generally
00:18:16open to the public. Theaters, hotels, restaurants, railroad transportation, and it provides for full and
00:18:24equal access without regard to race. In 1883, that law was challenged. The case, besides rewriting the nation's
00:18:36long-running racial drama, would produce the Supreme Court's first great dissent, and its first great dissenter.
00:18:46The Civil Rights Cases was a consolidation of five separate cases that spanned the country.
00:18:52Owners had been fined or indicted for denying black citizens seats at hotels in Kansas and Missouri,
00:18:58a seat on a lady's car of a southern railroad. The owners wanted the law under which they'd been
00:19:04prosecuted struck down. Much had changed in the eight years since the law's passage.
00:19:11Even in the North, people had grown weary of Reconstruction. Radical Republicans had lost
00:19:17control of Congress and the southern statehouses. Federal troops had been pulled from the old
00:19:22Confederacy. Members of the Court had no problem gauging the force and direction of the political
00:19:28winds. As Joseph Bradley's majority opinion circulated among the justices, eight of the nine signed on.
00:19:38The Supreme Court in 1883 strikes down the Civil Rights Act of 1875. And what the Court says is,
00:19:45the 14th Amendment prohibits a state from denying equal protection. Individual behavior does not offend
00:19:51the Constitution. And the federal government doesn't get to come in and fix this problem.
00:19:57The Court took the view that the 14th Amendment gave no protection from private discrimination.
00:20:06The landlord could exclude you from renting his house. The innkeeper could exclude you from the inn.
00:20:16The theater could exclude you from the theater. The 14th Amendment said no state shall. It didn't say no
00:20:24landlady, no innkeeper, no theater manager. The opinion ends with Justice Bradley saying,
00:20:32there comes a time when after the emergence of slavery, a person must take on the role of mere citizen
00:20:40and cease being a special favorite of the law. And what the Court is announcing then is,
00:20:47Reconstruction's over. You're just like anyone else.
00:20:52There was only one justice who refused to join the majority. He was a starch-collared fundamentalist
00:20:58Presbyterian and former slaveholder from Kentucky named John Marshall Harlan. He was the only justice
00:21:05who'd seen slavery and Reconstruction up close. As Attorney General of Kentucky just after the Civil War,
00:21:12Harlan had been a vocal opponent of the 13th and 14th Amendments. He'd been among the officeholders who
00:21:18stirred white rage against freed slaves. In Harlan's hometown of Frankfurt alone, there were 64 catalogued
00:21:26acts of white supremacist terror against freed blacks and their political allies. When Harlan saw the bitter
00:21:34fruit of his politics, he'd been shamed. Even though he was raised as a white supremacist,
00:21:41raised as a slave holder. At the same time, he firmly believed that his father had been an honorable
00:21:49white man, that he had never abused power. That may be a myth, but that's what he believed. And he
00:21:56wanted
00:21:57to live up to that kind of honor. And so people threw his history back in his face. And he
00:22:05said,
00:22:05I would rather be right than consistent. The Northern members of the court could talk in generalities
00:22:13about how the freedmen had become equal in the eyes of the law and no longer needed the special help
00:22:18of the federal government. But Harlan knew better. He knew the predicament that blacks faced in the South.
00:22:23And he knew that civil rights could not be protected simply with the abstractions of the language of
00:22:28equality. That civil rights required the federal government to give the aid that was necessary.
00:22:37Harlan determined to dissent in the civil rights cases and to dissent loudly. But once he began to
00:22:44write, he found himself paralyzed. Until his wife pulled from storage a strange memento the Harlan's had
00:22:50bought. The inkstand Chief Justice Roger Taney had used to write his infamous Dred Scott decision.
00:22:57A decision in which he observed that blacks had no rights a white man was bound to respect.
00:23:04She cleaned it, she filled it with ink, and she put it on his desk. So that when he came
00:23:09home from
00:23:09church one Sunday, it was sitting there. And in effect, what she was reminding her husband was that
00:23:17the Dred Scott case needed to be undone. Harlan's dissent in the civil rights cases says,
00:23:26we the court protected the rights of slave masters and upheld congressional laws protecting slave
00:23:33masters. And now, when the Constitution has been amended to protect the rights of former slaves,
00:23:40we're striking down congressional laws designed to enforce that right. We are not treating the former
00:23:46slaves with the same kind of generosity that we once treated slave masters. And that's hypocrisy.
00:23:54Harlan is that one voice on the court that still embodies that previous commitment that was made
00:24:00just a few years earlier to that goal, to the goal of racial equality. But the rest of the country
00:24:05and
00:24:06the court had moved on.
00:24:12The country doesn't want to continue with this experiment in coerced reform of race relations
00:24:18in the South. And I think the Supreme Court's basically putting its stamp of approval on that.
00:24:23They're saying the national government is not going to intervene anymore in southern race relations.
00:24:28We are restoring home rule on the race issue to the South. We're going to return to the status quo,
00:24:35which is upper class whites in the South get to decide what race relations are going to look like.
00:24:54FEMALE SPEAKER
00:25:09LOOKS
00:25:10You're moving from the period where people would wave the bloody shirt of the Civil War to try to reinforce
00:25:17sectional cleavages to an America that is being brought together, regardless of section, by ribbons of highways, ribbons of railroad
00:25:26tracks, telegraph lines.
00:25:29The country is changing, so what was once so strongly disunited was becoming united, and what's unifying that country, at
00:25:38least at this stage of the game, is not so much the central government, but it's the economy.
00:25:43And private actors, the ghouls, for example, the Rockefellers, the robber barons, these are people who are creating a national
00:25:50economy based on sort of a rootin' tootin' capitalism.
00:25:59From the 1870s into the 1930s, as a thousand local markets were welded together, the wealth of the nation surged.
00:26:07Gross national product grew into the tens of billions.
00:26:10The population swelled toward a hundred million and spread west.
00:26:14The national government stood back and watched as the engines of new industries shuttered to life, and new conflicts emerged.
00:26:24From the elite perspective, this is a system that is enhancing liberty.
00:26:29That is enhancing wealth.
00:26:31That is enhancing an idea of America that is pulling it into maturity as a nation.
00:26:36And anything that gets in the way of that endangers both that maturity and also the liberty on which the
00:26:44country was founded.
00:26:45The country is really divided between people who want to promote a national economy and all the competition and laissez
00:26:53-faire associated with the national economy,
00:26:54and those who wanted to regulate that economy, people who thought that that economy that was developing was imposing some
00:27:01burdens on workers and farmers,
00:27:03and that it was the obligation of government to try to mitigate some of those problems.
00:27:12From the beginning of the set-to over government involvement in the economy, one energetic voice rose above all others
00:27:19on the court.
00:27:20It was the voice of Justice Stephen J. Field.
00:27:26Field's constitutional vision was formed in the fresh beginnings of the Far West.
00:27:31Born to wealth and power in Massachusetts, Field had taken his lawyer's shingle and followed the 49ers into the wilds
00:27:38of California,
00:27:39where he and thousands of other individuals were free to invent a new state from scratch.
00:27:45In just 15 years, the 49ers had turned this virgin land into a place of high finance, industrial might, and
00:27:52fabulous wealth.
00:27:55The growth of empire that the Revolutionary War generation had envisioned, Field had witnessed on the nation's farthest shores.
00:28:04When Stephen J. Field took his seat on the court, he meant to protect the possibilities of economic expansion wherever
00:28:10Americans lived.
00:28:13The key was keeping private property clear of government meddling.
00:28:18And Congress itself had given Justice Field a tool to do just that, the 14th Amendment.
00:28:26Field thought that the language of the amendment made it very clear, for the first time in the country's history,
00:28:32the federal constitution limited the states in their ability to interfere with people's liberty and property.
00:28:38Field saying, private property is sanctified in America.
00:28:42If government impinges on private property, no longer do you have free government and a free people.
00:28:53For 25 years, in case after case, Field pressed his argument for near absolute economic liberty.
00:29:00He was convinced that state legislators were easily corrupted, that state regulation of private enterprise was most likely an effort
00:29:08to favor one competitor over another.
00:29:10If a state regulation was challenged in the Supreme Court, Field nearly always voted to strike it down.
00:29:17He often lost, but never flagged, and never backed down.
00:29:21And by 1890, the court had begun to tack around to Field, because pro-business presidents had filled the bench
00:29:28with like-minded lawyers, including Field's own nephew, David Brewer.
00:29:43By that time, a new civic religion had taken hold in America.
00:29:49Charles Darwin's theory of evolution and natural selection had evolved from scientific to social theory.
00:29:58Political philosopher Herbert Spencer's pungent term, the survival of the fittest, was in the air.
00:30:06Social Darwinism is coming to the fore.
00:30:08Herbert Spencer, social statics, the notion that the fittest will survive, and that life is about competition.
00:30:16The economy is about competition as well.
00:30:23And so if government gets involved and imposes its interests on the economy, then those who are naturally strongest won't
00:30:33necessarily win,
00:30:34because the referee will get involved in the game and bias the outcome of the game.
00:30:39Which means that not only is the outcome biased, but that the best does not prevail.
00:30:44John D. Rockefeller is supposed to have taught Sunday school.
00:30:50And one of the lessons that he apparently taught his young charges had to do with this justification of this
00:30:57new competitive environment,
00:30:59which his own corporation embodied, of course, which at times was quite ruthless.
00:31:05And he said, you know, it's like the American beauty rose, that in order to get the splendor of this
00:31:12rose, you have to prune the buds off.
00:31:15And if it appears to be cruel, that labor is suppressed, that competitors are eliminated ruthlessly,
00:31:22then this is the price you pay for economic progress.
00:31:30The typical workday for a man was 10 hours, possibly 12.
00:31:36The typical workday for women workers was 12 hours or 14 hours.
00:31:42And in this new industrial economy, people worked six days a week.
00:31:46You could work hard all day long and make an impoverishing wage if you were a factory hand.
00:31:55No matter how hard you worked, you couldn't make enough to support a family.
00:32:01Women and children were earning wages or earning income to help make the family just live at a subsistence level.
00:32:10The employer's rules held sway in the workplace.
00:32:14It was actually a realm of American life that almost resembled feudalism.
00:32:29By the 1890s, the divides in the nation had cracked wide.
00:32:34John D. Rockefeller and Andrew Carnegie were each making more than $10 million a year tax-free.
00:32:40The average worker made less than $500.
00:32:45Individuals feel they are increasingly powerless.
00:32:48And they're aggrieved in some sense.
00:32:50And they can't overthrow the source of the problem.
00:32:54They turn to government.
00:32:55It's all an effort to get some entity on your side to work against power that you yourself can't control.
00:33:06For the first time, Congress stepped in to check the growing power of the owning class.
00:33:11It mandated the breakup of powerful national monopolies.
00:33:15And in 1894, instituted a federal income tax on the richest Americans.
00:33:21Two percent on annual income over today's equivalent of a quarter million dollars.
00:33:33As the Supreme Court began to consider the constitutionality of this new federal legislation, class resentment spoiled over.
00:33:42A worker shutdown at the Pullman Company ignited a national railroad strike.
00:33:47Business-friendly federal judges, such as William Howard Taft, issued injunctions to put a stop to it.
00:33:54Railroad owners convinced the president to call out the U.S. Army and state militias.
00:34:00During the Pullman strike, the army ended up shooting five or six strikers.
00:34:06And Taft wrote at that time, they're going to have to shoot a lot more of those strikers in order
00:34:11to make the point that they want to make.
00:34:13And that attitude, by the way, was not that unusual.
00:34:16Conservative political leaders at that time really thought that the country was going to get out of hand
00:34:20if these more socialistic tendencies were not brought under control.
00:34:24What the court decides today, while obviously gripping and part of our culture wars,
00:34:32is chicken feed compared to what the court presided over in the 1890s.
00:34:38The court had in its hands the future of industrial America.
00:34:45Sober, thoughtful Americans, not hysterical people, thought the nation was at the brink of class war.
00:34:56The justices are responding to this sense of spreading anarchy and social disorder.
00:35:02And they're worried about socialism and communism and the desire to redistribute wealth.
00:35:08They're worried about property rights.
00:35:09When the court sat in 1895, Stephen Jayfield was nearing 80, barely able to haul himself up the steps of
00:35:17the Capitol.
00:35:18But his fingers could not be pried from the standard he'd held for over 30 years.
00:35:23He's talking about getting a shot of carbolic acid in his knee and how it was so painful that he
00:35:29thought he would pass out
00:35:30and that he really might die at any point, but he was struggling to hold on
00:35:34because it was absolutely vital to the safety of the nation that he participate in this decision.
00:35:40So Justice Field sees himself as doing heroic service to the country by struggling to hold on to his seat
00:35:46on the Supreme Court
00:35:47to strike down the income tax.
00:35:49Stephen Jayfield thought that the income tax was the thin edge of the wedge of communism.
00:35:56And these kinds of laws had to be stopped or the United States would just cease to be a place
00:36:01of liberty
00:36:02and instead would be a place where the poor thought up laws in order to take money away from the
00:36:07rich.
00:36:08The court majority sent a powerful message in the last years of the 19th century.
00:36:12It would safeguard private property owners from intrusions by both federal and state government.
00:36:18The court had finally bought into Field's vision of the 14th Amendment.
00:36:23While the majority refused to use the amendment to protect broad social and political rights for blacks or Chinese or
00:36:30women,
00:36:31it would use the amendment as a nearly impenetrable shield to protect private property rights.
00:36:40In 1897, Stephen Jay Field bested John Marshall's record 34-year tenure on the court, then grudgingly stepped aside.
00:36:49He doesn't leave the court the way he entered the court, as a cranky dissenter trying to tell everyone the
00:36:57right path.
00:36:57By the time Field leaves the court, his dissents had been vindicated.
00:37:03So, Field leaves the court at the end of the 19th century.
00:37:07But Field's ideas carry through well into the next century.
00:37:19Five years after Stephen Field's retirement, with his ideas still in full flower,
00:37:24a new kind of justice arrived at the court.
00:37:27By the time he was appointed in 1902,
00:37:31Oliver Wendell Holmes, Jr. had already distinguished himself as Civil War officer,
00:37:36Harvard Law professor, author of renowned works of legal scholarship,
00:37:40and Chief Justice of the Massachusetts Supreme Court.
00:37:45Even at the advanced age of 61,
00:37:48Holmes was a fresh wind blowing into the musty old Senate chamber where the court had sat for forty years.
00:37:53The old stalwarts, Justice Brewer, Justice Peckham, and even the Chief Justice Melvin Fuller,
00:38:02are all deeply religious men.
00:38:05They're convinced that the economic liberties that they've begun to read into the Constitution
00:38:10were handed down by the Lord and a part of natural justice.
00:38:18Oliver Wendell Holmes, on the other hand, did not believe in natural law.
00:38:22He was an agnostic, and he believed that any system of rights that existed in the world was the creation
00:38:31of people, of human beings.
00:38:33There were no God-given rights. We were making this up on our own.
00:38:37He came out and said, all judges inevitably bring to the cases they are hearing their prejudices, their ideas.
00:38:48He's telling the country, watch out for these judges. Me too, me included.
00:38:54There is the story of this young man who essentially asks Holmes, you know, how come you're such a great
00:39:01man, or something like that.
00:39:03And Holmes is supposed to have said, young man, I decided long ago that I wasn't God.
00:39:13Just three years into Holmes' tenure, a case came before the court that highlighted stark divisions among the justices,
00:39:21drawing the battle lines for a quarrel that would play out over the next thirty years.
00:39:25And Oliver Wendell Holmes skirted up for the second big fight of his life.
00:39:33In 1897, the state of New York had passed a law limiting the number of hours bakers could be required
00:39:39to work.
00:39:40And when Utica bakery owner Joseph Lochner refused to abide by the law, he was twice convicted, fined fifty dollars,
00:39:48and ordered to jail until he paid up.
00:39:50Instead of paying, Lochner challenged the maximum hours law, forcing a fight that finished in the United States Supreme Court.
00:39:59When the case finally landed in the old Senate chamber in 1905, New York defended its law.
00:40:05States had been ceded police power to ensure the public health and safety of their citizens.
00:40:11But the court struck down...
00:40:12Lochner, which is a law that imposes anything to do with health.
00:40:17And he concludes, no, it doesn't have anything to do with health.
00:40:22Bread is bread.
00:40:23And while bakers die younger than others, somebody's gotta die first.
00:40:28Therefore, the law isn't.
00:40:30It is trying to regulate the employer-employee relationship.
00:40:35And this is not subject to the police power.
00:40:38This is the liberty of contract that individuals have the right to engage in.
00:40:45What the court's saying is that when government tells me that I can't work 80 hours a week as a
00:40:51baker,
00:40:52government is infringing on my liberty to contract my labor.
00:40:57Government is infringing on me as a person telling me what I can do with myself.
00:41:03Liberty of contract was an idea straight from Stephen J. Field, teased from the soft phrases of the 14th Amendment.
00:41:10It went to the heart of free market ideals.
00:41:13When employers and employees were negotiating terms of a contract,
00:41:18government almost always had to stay clear.
00:41:21That laborers might not have the same leverage as owners was unfortunate,
00:41:25but not within government's power to fix.
00:41:29Where does this liberty of contract get...
00:41:31Where does the court find it in the Constitution?
00:41:34They find it in the due process clause, which says,
00:41:37Government shall not deprive people of life, liberty, or property without due process.
00:41:43And the court says included in that liberty protection is a right for liberty of contract.
00:41:48It's a very creative reading.
00:41:50It's basically a made-up doctrine.
00:41:52There's a lot of pressure on judges to reach results that they regard as just,
00:41:57and they're willing to stretch and strain with the text if necessary.
00:42:02And in 1973, a lot of judges felt like a woman's right to abortion was pretty important,
00:42:07and the court found it in the Constitution.
00:42:09In 1905, a lot of people thought that a right to contract was important,
00:42:13and the court found it in the Constitution.
00:42:16John Marshall Harlan, joined by two other justices, dissented in Lochner.
00:42:21The state of New York had presented compelling facts as to the health hazard to Baker's.
00:42:25That was good enough for him.
00:42:27Oliver Wendell Holmes, acting alone, made a more sweeping dissent,
00:42:31a frontal assault on judicial activism.
00:42:35Holmes says we, the judges, are imposing our policy views on the nation as a whole when we do this.
00:42:42We talk about liberty of contract.
00:42:43We talk about property.
00:42:45We have all these words.
00:42:47But in fact, what's going on here is you don't like this legislation.
00:42:50You think this is bad for the country.
00:42:52You may be right, he says, but our job is not to decide whether it's good or bad for the
00:42:58country.
00:42:58It's to decide what do the people of this country want.
00:43:01And New York State can go to hell in a handbasket, as far as I'm concerned, in its public policy,
00:43:06but my job is to see that it gets there.
00:43:09Holmes did not do this because he had great faith in American politicians.
00:43:15He called them the thick-fingered clowns at one time.
00:43:20He was not a reformer.
00:43:22He was not necessarily in favor of the rights of labor.
00:43:26He just felt that if in this struggle which is going on between interest groups, between labor and capital,
00:43:35if labor wins one and they get a victory in the New York legislature,
00:43:40then who are the judges to make up this stuff in the 14th Amendment and strike them down?
00:43:59Like all justices of his day, Holmes did his real work at home.
00:44:03He wrote his first famous descent in his personal library, surrounded by the guiding stars of his life.
00:44:11On his shelves were well-thumbed books by Charles Darwin, Herbert Spencer, and his hero Malthus,
00:44:18whose ideas inspired the theory of natural selection.
00:44:23In Holmes's closet were battle-torn relics of his war.
00:44:28These uniforms were worn by me in the Civil War, said a note pinned to them,
00:44:33and the stains upon them are my blood.
00:44:38He was in rebellion against the certitudes as a result of the war.
00:44:43The one thing that he did come away with, and it also becomes a key to his jurisprudence,
00:44:49is the sort of nobility of the struggle.
00:44:54He said it was our great good fortune to be on that generation that fought this war,
00:45:00and what we learned was that whether you're given by destiny a spade and you dig,
00:45:07or whether you get an axe and you scale the ice,
00:45:11he said, the one true thing you bring to it is a great heart.
00:45:18Holmes is a skeptic without becoming a cynic, which is, I think, what, to me, is endearing about him in
00:45:25a way.
00:45:26He didn't think anybody knew how to make society better, but he was deeply respectful of the people who were
00:45:31struggling to do so.
00:45:36The struggle between capital and labor was the ferocious fight during Holmes' years on the court.
00:45:42Capital held the high ground, but progressive reformers kept pushing for maximum hours and minimum wage laws to ease the
00:45:49daily burden on workers.
00:45:51They wanted limits on child labor and the right of workers to form unions and bargain as a collective.
00:45:58Holmes' personal allegiance lay with capital, and he didn't think any reform would much help the working classes.
00:46:05But when progressives managed to get laws passed that squeezed owners,
00:46:10Justice Holmes refused to strike them down, unless they were unarguably unconstitutional.
00:46:17Now and then, he gathered a majority for upholding reasonable regulation.
00:46:22But Holmes made few reliable converts among his fellow justices,
00:46:27and he would occasionally turn his biting wit on his colleagues.
00:46:31Holmes had grown particularly weary of John Marshall Harlan's moralizing,
00:46:35but an uncharacteristic sentimentality seeped out of Holmes on the news of Harlan's death.
00:46:44The old boy had outlived his usefulness, Holmes wrote,
00:46:49but he was a figure the like of which I shall not see again.
00:46:54When he died, the black community of Washington was quite saddened,
00:46:59and the African Methodist Episcopalian Church actually had a memorial service for him.
00:47:06And in the program, there's a photograph of Harlan, and on it it says,
00:47:12A true friend of the people.
00:47:15And they played Beethoven's On the Death of a Hero.
00:47:21In his own home, and sometimes out of it, he was charming, Holmes noted.
00:47:26On my 70th birthday, who but he bethought to put a little bunch of violets on my desk in court.
00:47:33Peace to his ashes.
00:47:38By 1912, the great stalwarts of liberty of contract, Brewer, Peckham, and Fuller, had all given up the ghost too.
00:47:47But President William Howard Taft reloaded the court with justices also willing to strike down state and federal laws
00:47:53that intruded on the free market economy.
00:47:56Holmes' only sure ally in the cause of judicial modesty was a Woodrow Wilson appointee, Louis Brandeis,
00:48:03who in 1916 became the first Jewish member of the court.
00:48:09Holmes and Brandeis were the great dissenting duo of the progressive era,
00:48:14and they're forever linked together as Holmes and Brandeis.
00:48:18But they were entirely different men.
00:48:21Holmes approved of progressive legislation because he didn't care.
00:48:27Brandeis was righteous. He was zealous.
00:48:30He was passionate about the issues of his time.
00:48:34Holmes hated facts.
00:48:35If you read a Holmes opinion, there are almost no facts in it.
00:48:39Contrasted with a Brandeis opinion, Brandeis is just going to roll you over with facts.
00:48:45One summer, Brandeis, Holmes was going on vacation in the summer.
00:48:49And Brandeis said, hey, Oliver Wendell, why don't you learn about the garment industry?
00:48:56Remember, you can read up on the garment industry.
00:48:59And Holmes sort of, you know, you can see him rolling his eyes like, lovely, that's my summer reading.
00:49:08One fact mattered most to Justice Holmes, the headcount.
00:49:12He exceeded, almost without exception, to the will of the political majority.
00:49:18When the state of Virginia authorized the forced sterilization of a young woman named Carrie Buck,
00:49:24Holmes authored the decision that upheld it, noting that Miss Buck, her mother, and her daughter were all feeble-minded.
00:49:33Now, there are problems both with his facts and with his law.
00:49:37Carrie Buck was probably not feeble-minded.
00:49:40The reason she was identified as feeble-minded was she was unmarried, and she was a teenager, and she'd gotten
00:49:46pregnant.
00:49:48We have seen more than once that the public welfare may call upon the best citizens for their lives, Holmes
00:49:54wrote in his opinion.
00:49:56It would be strange if it could not call upon those who already sap the strength of the state for
00:50:01these lesser sacrifices.
00:50:03Three generations of imbeciles are enough.
00:50:07Well, maybe Holmes's judicial philosophy didn't make him a sterling symbol of human sympathy.
00:50:13But besides Brandeis, Holmes was about the best hope the progressives had.
00:50:18And support for the progressive movement was being washed away.
00:50:23The economic boom that takes the United States out of the First World War period and telescopes into the 1920s
00:50:30is enormous.
00:50:33And so, if you're sitting on the Supreme Court as a defender of liberty of contract, you're saying,
00:50:37this is the America that we can have if we just keep government out.
00:50:43If you protect property, you get enormous wealth.
00:50:46You get cars.
00:50:48You get an industrial base, which is second to none.
00:50:51You get exports of goods.
00:50:53You get accumulation of wealth and dispersion of wealth.
00:50:59Nobody had to convince former President William Howard Taft, who took over as Chief Justice in 1921.
00:51:06Taft was soon joined by George Sutherland and Pierce Butler,
00:51:10who along with Willis van Deventer and James McReynolds would come to be known as the Four Horsemen of the
00:51:16Apocalypse.
00:51:18In 1923, the Four Horsemen made a clear statement about government's power to insert itself into the employer-employee relationship,
00:51:27pushing the court toward a hands-off doctrine that made even Taft blush.
00:51:33Five years earlier, the District of Columbia had appointed a board to hold hearings and find a fair minimum wage
00:51:39to be paid to women and children.
00:51:42Employers and employees brought suit, challenging the right of any government to say what workers would be paid.
00:51:50In Adkins versus Children's Hospital, over another loud objection from Holmes, the court struck down the minimum wage law.
00:51:58The court said, hey, if a woman is getting a minimum wage, it means that she would have been willing
00:52:05to work for less.
00:52:06And the difference between that minimum wage and what she would have been willing to work with is a forced
00:52:12extraction from the employer to her.
00:52:15And therefore, it violates due process of law.
00:52:20He wants to pay less, and he should have the right to do so.
00:52:25Justice Sutherland noted that in two prior cases, the court had sustained a maximum hours law for women on account
00:52:35of their special needs,
00:52:36and then a maximum hours law for both men and women.
00:52:40So it was assumed Lochner was dead.
00:52:42He said, no, no, Lochner is very important.
00:52:45Lochner is alive.
00:52:46She was deprived the liberty of contract, clearly, which she is entitled to.
00:52:55The court was little criticized for its creativity or its activism.
00:52:59Its prestige was at a peak.
00:53:01In 1929, Chief Justice Taft convinced Congress to appropriate $10 million for the Supreme Court to have a building of
00:53:10its own.
00:53:11The cornerstone was laid in 1932.
00:53:15That same year, Oliver Wendell Holmes retired, at age 91.
00:53:20He was still in the minority on the question of government's power to regulate the economy.
00:53:27In 30 years on the bench, he had been unable to break the spell of Stephen Jay Field.
00:53:33Liberty of contract still held sway.
00:53:37But Oliver Wendell Holmes, the old skeptic whose youthful idealism had been buried among the corpses of Civil War dead,
00:53:44had not lost heart.
00:53:48As I grow older, I grow calm, Holmes had written.
00:53:52I think it not improbable that man, like the grub that prepares a chamber for the winged thing it has
00:53:59never seen but is to be, may have destinies that he does not understand.
00:54:15By the time Oliver Wendell Holmes died in 1935, the United States Supreme Court seemed to have realized its own
00:54:22great destiny.
00:54:24After 145 years of renting space from the Senate, the court moved into a home of its own.
00:54:29The new surroundings, four resplendent stories of white oak and mahogany, Spanish, Italian, and African marble, carved friezes, and Corinthian
00:54:39columns, suggested permanence and strength.
00:54:43But even as the marbled walls were being built around the court, a storm was gathering outside it.
00:54:49A storm that would challenge the court's cherished and long-held certainties.
00:55:17By the early thirties, the court, the nine old men, found itself sitting at the top of a situation in
00:55:26which an unregulated economy lay in ruins,
00:55:29at its feet.
00:55:30Reserve, protect, and defend.
00:55:33When Franklin Roosevelt is inaugurated, there's 25% unemployment in the United States.
00:55:40Our greatest primary task is to put...
00:55:43And in his inaugural address, the chief applause line is when he says he may be forced to assume powers
00:55:51ordinarily taken only in time of war.
00:55:56He envisioned a much more muscular federal government and legislation that would practically grab the autonomy by its ears and
00:56:07pull it out of the depression.
00:56:08This nation is asking for action, and action now!
00:56:18From the beginning of his first term, Franklin Roosevelt rolled up his sleeves and stuck his hands where no president
00:56:24ever had,
00:56:26in the worrying mechanisms of the national economy.
00:56:30With the help of Congress, the Roosevelt administration undertook to increase farm income and wages, to push down prices, and
00:56:37to create jobs.
00:56:39Nobody would argue that things were great, but the federal government had put its shoulder to the wheel.
00:56:45Citizens saw what the federal government could do in the early years in the New Deal.
00:56:49And so people's expectations about what government could do began to rise.
00:56:54The court had to know that the New Deal had extraordinary popular support.
00:57:01Congress would do anything Roosevelt wanted.
00:57:05He's got the presidency, he's got the support of the people, and the government was exercising powers that had never
00:57:12been exercised in American history.
00:57:14And the justices can see, Hitler has taken over in Germany and centralized things.
00:57:22Mussolini is running Italy and centralizing things.
00:57:26Stalin is running Russia and centralizing things.
00:57:30And now we have a government where the president has suggested,
00:57:34well, maybe the Constitution isn't all that it should be, and I want to have wartime powers.
00:57:41And the justices were worried about this.
00:57:45Are we seeing a constitutional revolution without a change in the Constitution?
00:57:51The only conceivable check on Roosevelt is the judiciary.
00:57:58In 1935 and 1936, the Supreme Court invalidates ten recent federal statutes.
00:58:06They have never done that before, they have never done that since in a two-year period.
00:58:13At the end of that run, in 1936, the court narrowly struck down a New York State minimum wage law.
00:58:21The Supreme Court, led by the four horsemen, held that neither the federal government nor state legislatures had the right
00:58:28to meddle in the free market economy, emergency or no.
00:58:33The rest of the country is widely being affected, feeling the effects of the Great Depression.
00:58:39And the four horsemen are hanging on for dear life to this liberty of contract idea.
00:58:45I defy anyone to read the opinions concerning the AAA, the Railroad Retirement Act, the National Recovery Act, the Guffey
00:58:55Coal Act, and the New York minimum wage law, and tell us exactly what, if anything, we can do for
00:59:03the industrial worker in this session of the Congress with any reasonable certainty that what we do will not be
00:59:10nullified as unconstitutional.
00:59:15Franklin Roosevelt had big new things to try, and five votes on the court could put a stop to any
00:59:21of them.
00:59:21So after the president was re-elected in a landslide in 1936, he went after the conservative old justices.
00:59:29He threatened to create six new seats on the bench, fill them with his own men, and thereby give himself
00:59:35a certain majority.
00:59:36What Roosevelt was indicating to the court was, if you stand in the way, I'm simply going to finish you
00:59:45as an institution.
00:59:46And I think the justices understood that.
00:59:51By 1937, when the case of a hotel maid from Wenatchee, Washington, made it to the splendid new courthouse, Roosevelt's
00:59:59assault had focused the nation's attention on nine men in black robes.
01:00:05The chambermaid, Elsie Parrish, wasn't asking for the moon.
01:00:09She just wanted the court to award her back pay of $216.19, the difference between the wage the hotel
01:00:18had paid her and the state-mandated minimum.
01:00:21The West Coast Hotel attorneys were unapologetic.
01:00:24Of course the corporation had been paying the maid less than the minimum of $14.50 a week.
01:00:30It had the right to do so under the liberty of contract doctrine.
01:00:36The four horsemen all but nodded in agreement.
01:00:39But when the West Coast decision came down on March 29, 1937, Chief Justice Charles Evans Hughes' preamble caught the
01:00:48attention of everyone listening in.
01:00:50The economic conditions, he said, make it not only appropriate, but we think imperative.
01:00:56That in deciding the present case, the subject should receive fresh consideration.
01:01:05Hughes announced that the Supreme Court, by a 5-4 vote, was upholding the Washington state minimum wage law.
01:01:12The working woman, Elsie Parrish, would get her due.
01:01:17West Coast Hotel versus Parrish was the court's surrender to the New Deal.
01:01:23Chief Justice Hughes, in that opinion, says people have to live.
01:01:28They have to have the necessities of life.
01:01:30And the public doesn't have to subsidize an unscrupulous employer who is exploiting his employees.
01:01:39That case has sometimes been referred to as ushering in what is known as the Constitutional Revolution of 1937.
01:01:46The court was acknowledging the legitimate role that government would play in helping people who were not competing successfully in
01:01:53the market.
01:01:56When the court switches in 1937, they basically say, we will get out of the way and let the train
01:02:02come through.
01:02:03Government can regulate as it chooses.
01:02:06The revolution of 1937 was explicitly Holmesian in some ways.
01:02:12They stand back.
01:02:14They let the New Deal proceed.
01:02:16And I think there were contemporaneous reports at the time of people saying, you know,
01:02:19Holmes must be chuckling in his grave now.
01:02:21This is just what he was telling the court to do 20 years ago.
01:02:24And now they're finally doing it.
01:02:26Holmes had said in these economic areas, the court should restrain itself.
01:02:30Let the people work it out.
01:02:32Let the legislatures work it out.
01:02:34Let the interest in society fight it out.
01:02:37But let's don't intervene.
01:02:40And essentially, that's what the court did.
01:02:43It pulled back from the whole field of economic regulation.
01:02:45And it made Holmes into quite a profit.
01:02:54The court essentially quit one job without yet having a new job identified.
01:02:59The challenge of the court after 1937 was to figure out how to rethink its role in the political system.
01:03:06Could it find a role that was appropriate for a new age?
01:03:16For more on landmark cases, the personalities behind the robes, and significant moments in Supreme Court history, visit PBS.org.
01:03:31The Supreme Court series is available on DVD for $79.99.
01:03:36A companion book is available for $25 plus shipping.
01:03:39To order, call 1-800-336-1917 or write to the address on your screen.
01:04:151-800-337-1979
01:04:15Or a companion book is available on DVD for $65.99.
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