Struggles over Individual Rights and State Power in the Progressive Era
Summary and Keywords
From the 1890s to World War I, progressive reformers in the United States called upon their local, state, and federal governments to revitalize American democracy and address the most harmful social consequences of industrialization. The emergence of an increasingly powerful administrative state, which intervened on behalf of the public welfare in the economy and society, generated significant levels of conflict. Some of the opposition came from conservative business interests, who denounced state labor laws and other market regulations as meddlesome interferences with liberty of contract. But the historical record of the Progressive Era also reveals a broad undercurrent of resistance from ordinary Americans, who fought for personal liberty against the growth of police power in such areas as public health administration and the regulation of radical speech. Their struggles in the streets, statehouses, and courtrooms of the United States in the early 20th century shaped the legal culture of the period and revealed the contested meaning of individual liberty in a new social age.
In the pivotal decades before the United States entered World War I, the American people—the native-born and immigrants alike—strived to define the ideas and institutions appropriate to the tremendous challenges of a modern urban-industrial society. They reinvented democratic politics, reimagined liberalism, and remade the state, laying the foundation for the nation’s political development over the next half-century.1
The new political landscape of the Progressive Era first took shape amid the great mobilization of farmers and industrial workers in the 1890s. Sweeping historical processes—breakneck industrialization, corporate consolidation, urbanization, mass immigration, and overseas expansion—transformed American society, giving rise to broad public demands for social justice and reform. Middle-class men and women predominated in the myriad reform organizations of the Progressive Era. But people of diverse persuasions challenged the inherited political tradition of laissez-faire liberalism, an individualistic creed that equated liberty with decentralized institutions and the lowest possible level of state intrusion in the economy.2
From trade unions and professional societies to religious groups and women’s clubs, the proliferating voluntary associations of the early 20th century called upon local, state, and federal governments to achieve their social purposes. Labor regulations, antitrust enforcement, compulsory education, public health campaigns, environmental conservation, social insurance, Jim Crow racial segregation, and eugenics—all of these governmental activities first appeared on the American scene or assumed their modern, administrative forms during the Progressive Era. Americans amended the U.S. Constitution four times between 1913 and 1920, adding the federal income tax, direct election of senators, alcohol prohibition, and women’s suffrage to the national political order.
The label progressive is notoriously difficult to pin down; for most historians, it no longer calls to mind a unified social movement. But the word resonated profoundly with early 20th-century Americans themselves. In the 1912 election, it was claimed by one of the most impressive third-party movements in American history, which called for the federal government to take on a broad agenda for social justice and industrial democracy. “It is time to set the public welfare in the first place,” the Progressive Party platform proclaimed. That broad democratic impulse withered during World War I and the ensuing Red Scare, opening a period of retrenchment.3
Taken as a whole, progressive politics ushered in profound changes to American governance. The early 20th century is now recognizable as the formative era of the modern interventionist state, a state that used social knowledge and administrative strategies to regulate the economy and the population in the name of social welfare. Governmental power reached more deeply than ever before into the intimate details of everyday life. The increasing power and presence of government in American life did not go unchallenged. Grass-roots resistance, political mobilization, and a groundswell of litigation met new forms of state power with new claims to individual rights. At the heart of these struggles was the meaning of liberty itself.4
For progressive-minded Americans, unfettered individual liberty was a quaint notion, ill suited to the pressing social interests of their day. In their view, “liberty” had become the slogan of the robber barons, the exploiters of women and children, and the corporate interests that monopolized the nation’s resources. As the philosopher John Dewey pointedly observed, “the slogans of the liberalism of one period often become the bulwarks of reaction in a subsequent era.” Reformers were particularly outraged when state and federal courts used the newly minted doctrine of “liberty of contract” to decimate hard-won social legislation that had been enacted to address the worst human consequences of industrial capitalism.5
But self-interested capitalists, conservative judges, and progressive state-builders were not the only people with something to say about the meaning of American liberty in an urban-industrial age. Others, less well remembered in our history books, fought for their own decidedly radical conceptions of liberty. Unlike the apologists for laissez-faire, their claims to liberty extended well beyond the economic realm. They demanded the broadest imaginable freedoms of speech and assembly, conscience, and bodily integrity—even during epidemics, war, and other crises. Birth control advocates fought for the right to disseminate their information in the streets and through the mail. Antivaccinationists called for medical freedom. Labor radicals said that the First Amendment protected their right to advocate the overthrow of capitalism. Ironically, the most uncompromising claim to American liberty came from the nation’s anarchists, who had no faith at all in reform. Anarchists repudiated the rule of law, openly challenging the government’s right to exist.
The classic narrative of the Progressive Era as a great democratic contest between “the people” and the “special interests” (in the words of the Progressive Party Platform) simply obscures too much of the era’s history. A proliferation of social and legal struggles attended the rise of a powerful interventionist state in the United States and shaped the contours that the state assumed in the 20th century. The largely forgotten forerunners of the modern civil liberties movement lost many more battles than they won. But their struggles in the statehouses, the courts, and the streets undeniably shaped the public life of the period, leaving behind an important legacy for the rights-based movements that would follow in their wake.
Social Politics and the Progressive State
“[A]t the opening of this century,” Walter Lippmann wrote in 1914, “democratic people had begun to see much greater possibilities in the government than ever before. They looked to it as a protector from economic tyranny and as the dispenser of the prime institutions of democratic life . . . [R]eform through state action began to take hold of men’s thought.”6
That progressive impulse emerged from a broader international conversation about the consequences of the Industrial Revolution—a transatlantic revolt against the intellectual tenets and political institutions of laissez-faire. As European and American thinkers reckoned with the moral hazards of industrialization, the historian Daniel T. Rodgers has shown, they grasped for new ideas and programs “to limit the social costs of aggressive, market capitalism.”7
Laissez-faire liberalism valorized the autonomy and agency of the individual self. It drew a sharp boundary between the private sphere of voluntary market relations (where individuals freely contracted with one another) and the public field of coercive state action (ideally limited to maintaining order and protecting property). Laissez-faire propagandists did not imagine that a liberal society could get by without a state. But they did decry many types of regulation as unjustified interference with the natural laws of the market. “Laissez-faire was not about absolutes but about the burden of proof,” Rodgers reminds us, “and it stacked that burden massively against state economic action.”8
Many features of American life in the Gilded Age made the country particularly fertile for this system of beliefs: a widely held middle-class ethos of individualism, a common perception that big government had been tried and had failed during Reconstruction, and the seemingly indisputable evidence that private initiative, not state action, was transforming the United States into the world’s most explosively productive economy. Laissez-faire never wholly dominated the way that Americans thought about their economy and state. But laissez-faire principles were imbibed in the university classroom, enshrined in the leading texts of political economy, preached from the Protestant pulpits, and proclaimed as the law of the land by state and federal courts. Francis Amasa Walker, the president of the American Economic Association in 1898, observed (not approvingly) that in the United States, a strict adherence to laissez-faire was not just “the test of economic orthodoxy . . . It was used to decide whether a man was an economist at all.”9
But as industrial capitalism fashioned a social world of coal-fired factories and thickly populated cities, the very concentration of urban-industrial life—with its inherent collectivism rooted in markets for housing, labor, and other vital goods—fostered a growing public awareness of social interdependence. Cities were full of possibility. They were also rife with social problems that revealed, in the words of the Chicago settlement leader Jane Addams, “the mutual dependencies of city life.” Behind the deadly epidemics of smallpox and typhoid fever, social investigators found overcrowded tenements, broken water systems, and supposedly “ignorant” immigrants. At the bottom of urban crime, reformers discerned not just the bad choices of individuals, but inequitable social structures and “hereditary mental defects.” The alarmingly high rate of industrial accidents—which killed as many as 35,000 American workers each year—were traced by social investigators to unsafe working conditions sanctioned by employer-friendly common law rules.10
Socialists and other labor radicals in Europe and the United States demanded dramatic transformations in their nations’ industrial and political orders. Reformers strived, in ways that reflected their nations’ distinctive political cultures, to create what the historian James T. Kloppenberg has called a “via media” (middle way) between laissez-faire liberalism and revolutionary socialism. Progressivism was the American version of that via media.11
Turning progressive politics into government policies called for a dramatic renovation of American institutions. Lippmann observed that the endemic corruption and inefficiency of the political order aroused serious outrage only when reformers envisioned doing more with their governments. Indeed, one major type of progressive political reform was structural, aimed at reforming the machinery of government. Civil service examinations, city manager plans, and at-large municipal voting schemes all aimed to weaken the grip of party machines and place office-holding on a more professional basis. Campaigns for municipal “home rule”—strengthening the powers of governance that municipalities held under their state-issued charters—sought to make city governments more independent and capable regulators of local economies and spaces.12
At every level of government, there was an increasing reliance upon administrative bodies to design and implement regulation of important sectors of the economy and society. In theory, the administrative process would obviate the cumbersome process of lawmaking and litigation and foster the development of real expertise among professional administrators working in specialized fields of regulation. This model of governance was road-tested in innumerable railroad commissions, boards of labor statistics, public utilities commissions, parole boards, and public health boards, which combined elements of legislative and judicial authority in a powerful and discretionary form of administration that knew few clear legal restraints. In an area of contentious public debate, state and local governments ultimately pursued administrative regulation of vital utilities such as streetcars, gas, and electricity rather than the outright public ownership that socialists demanded.13
In the American legal system, the power to restrain and regulate liberty and property in order to promote the public welfare was called “the police power.” Prior to the dramatic political transformation of the New Deal, police power still remained chiefly the province of the state and local governments. But there were areas of increasing federal involvement in Progressive Era regulatory action, including supervision of the railroads (under the Interstate Commerce Act of 1887), antitrust prosecutions (the Sherman Antitrust Act of 1890), conservation policies in the arid west (the Newlands Reclamation Act of 1902), the broadening epidemic-fighting authority of the nation’s public health service (strengthened by an act of Congress in 1902), and federal prosecutions against prostitution (the Mann Act of 1910). All these activities rested upon their arguably close relation to interstate commerce, the public domain, or another area of clear federal authority under the U.S. Constitution. The ambit of federal authority, though, was still decidedly limited. Given the constitutional tradition of dual federalism, jealously guarded by the federal courts throughout this period, progressives who sought to use public authority to strengthen democratic control and ameliorate the harshest human consequences of industrial capitalism necessarily relied on their state and local governments to act.14
And act they did. In the centrally important field of industrial labor relations, the state record was mixed. State and local governments in the 1890s outraged the labor movement by using the muscle of state militia units and police to crush strikes; and the courts issued injunctions against strikes and boycotts, in some cases placing entire working-class communities under judicial decrees. But women’s organizations and labor reform groups enjoyed considerable success in persuading state legislatures to enact laws to aid working-class people and their families. Between 1911 and 1920, 42 states enacted workman’s compensation laws, which provided social insurance against industrial accidents, and 41 states enacted mothers’ pension laws, which provided public assistance to mothers of young children who had lost the support of the male breadwinner due to death or disability. Nearly every state also passed maximum hours laws for women in industrial jobs. In the field of public health, a dizzying array of administrative measures was put in place, ranging from new controls of the milk supply to compulsory vaccination against smallpox. Progressive ideas about the social causes of crime (which they traced to poverty, inadequate wages, and hereditary “mental defects”) led to a host of revolutionary innovations in criminal justice: probation and parole, juvenile courts, specialized family courts, and even eugenical sterilization to prevent “mentally defective” criminals from reproducing “their kind.”15
Across the American South, where the era’s reinvention of democratic politics rested upon the wholesale disenfranchisement of African American men, white supremacists marshaled the modernist rhetoric of progressive in support of Jim Crow laws, which mandated racial segregation in virtually every area of southern life. As Barbara Young Welke has written, “Historians have long resisted seeing Jim Crow as part of the broader pattern of state regulation that marked the emergence of the modern American state. It has been all too easy, even tempting, to dismiss Jim Crow as a relic of the past, an example of Southern exceptionalism, an aberration from the broader pattern of Progressive Era regulation. Yet the evidence warrants taking more seriously southerners’ own embrace of the Progressive label.”16
The police power, though exercised in the name of the public welfare, proved all too compatible with social movements bent on the social control of immigrants, African Americans, and working-class people in general. In an era of extraordinarily robust participation in public life, American governments, particularly after the assassination of President William F. McKinley by an avowed anarchist, imposed a tight rein on the political activities of a wide range of people, from anarchists and radical labor unionists to birth control advocates.
The Courts and Labor: “Liberty of Contract”
The decades around the turn of the 20th century are remembered, with much justification, as the heyday of “laissez-faire constitutionalism.” Although the courts in fact upheld a considerable amount of legislation as falling within the legitimate authority of the police power, the courts did indeed greet many hard-won progressive labor laws with a skepticism that bordered on outright hostility. According to historian William E. Forbath, “By the turn of the century state and federal courts had invalidated roughly sixty labor laws.” And that number would continue to grow. During the 1880s and 1890s, judges had transformed the due process clauses of the state and federal constitutions—the familiar phrases that forbid the government from taking away a person’s life, liberty, or property “without due process of law”—from a requirement of good and reasonable legal procedures into a libertarian wellspring. The word liberty became virtually synonymous with the freedom to enter into economic agreements (including wage labor contracts) with the least possible interference from the state. Property became an almost mystical concept that included not only land and things, but also the right to pursue a calling and, some lawyers contended, the right to be known as white. (And what was life without liberty and property?) This kind of judicial reasoning would become known as “substantive due process.” It placed the burden upon the state to show that its economic regulations were truly necessary and did not interfere with substantive individual rights.17
The U.S. Supreme Court’s controversial decision in Lochner v. New York (1905) represented the high-water mark of this sort of classical liberal jurisprudence, and it generated fiery progressive criticism of the courts. The case centered upon a New York law that set a maximum ten-hour workday for bakers. According to its defenders, the measure aimed to reduce the respiratory disease associated with extended exposure to flour dust. The Court killed the statute. Writing for a five-to-four majority, Justice Rufus Peckham denounced the statute as an “illegal interference” with “the right of the individual to liberty of person and freedom of contract.” The individual, in Peckham’s legal worldview, applied in equal measure to the boss and the worker—never mind that the bargaining power of employers generally far outweighed that of employees in the industrial United States. Liberty of contract trumped the police power. An evidently exasperated Justice Oliver Wendell Holmes Jr. thundered in dissent: “[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.”18
Tellingly, American courts proved far more receptive to maximum hours laws that applied only to women. According to the rationale articulated by the Supreme Court in its 1908 Muller v. Oregon decision, women’s innate biological differences made them fit subjects for state protection: “[H]er physical structure and a proper discharge of her maternal functions—having in view not merely her own health, but the well-being of the race—justify legislation to protect her from the greed as well as the passion of man.”19
Decisions like Lochner were controversial in their own time, and they shaped the terrain of organized political action for the labor movement and its progressive supporters. In fact, progressives to a notable degree defined themselves and their movements against the courts. The progressive legal scholar Roscoe Pound condemned liberty of contract as a new and formalistic doctrine—out of touch with social reality. “Why do so many [courts] force upon legislation an academic theory of equality in the face of practical conditions of inequality?” he asked. “Why is the legal conception of the relation of employer and employee so at variance with the common knowledge of mankind?” The rising public dissatisfaction with the courts was captured by the title of Gilbert E. Roe’s 1912 book, Our Judicial Oligarchy. That same year, Theodore Roosevelt, seeking a return to the White House at the head of the Progressive ticket, came out strongly in favor of giving the voters the power to “recall” unpopular court decisions.20
Time and again, the progressive critique of the courts returned to the larger problem of liberty in the United States. Liberty defined as freedom from government interference may have made sense in the agrarian nation of Jefferson and Jackson. But in Roosevelt’s United States, an industrial nation of cosmopolitan cities, powerful corporations, and stark social inequalities, the old liberty fell short. In such a world, “real liberty,” which progressives such as future Supreme Court Justice Louis D. Brandeis defined as the individual’s capacity to participate fully in the economy and the polity, could not be had without government intervention. The political scientist Charles E. Merriam, a progressive who had served on the Chicago City Council, reflected on the problem in 1917. “Liberty was a formula to which men adhered, but its application was by no means clear,” he wrote. “It tended more and more to pass from a purely negative idea that less government meant more liberty, to a positive and constructive form—to a doctrine of individual and social advantage gained through the government or through organization.” This historic shift in American political thought, as Merriam understood it, “was the reconciliation of liberty not merely with government, but with the grim facts of industrial and social life.”21
The new administrative state that the progressives and their political allies built, piece by piece and program by program, during the early 20th century did help alleviate many of the most destructive effects of industrial capitalism. One need only imagine a world without antitrust laws, environmental regulations, or the thinnest safety net for working-class families to sense the significance of these achievements.
But for some members of American society, the extraordinary growth of regulatory power brought not just a “new freedom” (in Woodrow Wilson’s evocative phrase), but new forms of coercion. The public record of the Progressive Era reveals a strong undercurrent of resistance to state power that came from ordinary people who had their own notions of equality and freedom—for themselves, their families, and their communities—and who sometimes viewed the state as a threat. The phrase liberty of contract does not begin to capture the range of rights for which these people fought. Chinese immigrants challenged the federal government’s increasingly powerful immigration bureaucracy and the racially discriminatory exercise of state and local police powers. African Americans leaders used boycotts, lawsuits, and protest to push back against the rising regime of Jim Crow and government-sanctioned lynching. Catholic groups fought eugenicist sterilization laws. The court records and newspapers of the early 20th century teem with such struggles. But our history books have not yet fully done justice to that side of the Progressive Era story.22
Ordinary Americans challenged the growth of state power during the Progressive Era in the streets, the statehouses, and especially in the courts. In the process, they articulated, among other arguments, strong and distinctively modern claims to individual liberty. Some of the most dramatic and revealing struggles of the period involved challenges to two areas of police power that the courts viewed as virtually unassailable: public health administration and government regulation of speech.
Demanding Medical Freedom: “The Vaccination Question”
Protecting the public from deadly epidemics was among the oldest purposes of the police power. Since the founding of the nation, American governments had established armed quarantines on land and at sea, seized private homes for smallpox pest houses, and enacted, in the approving words of the U.S. Supreme Court, “health laws of every description.” Professor Ernst Freund of the University of Chicago Law School, the era’s leading authority on the police power, had serious reservations about the extent to which judges stretched the doctrine of liberty of contract. But public health was different. In Freund’s eyes, this was a prime example of the “undisputed field of the police power.”23
Modern public health administration was still coming into its own in the United States at the turn of the 20th century, but in its ambition and field of action, it exemplified progressive social governance. Public health wedded the expertise of medicine and the social sciences to state police power in a wide-ranging effort to stamp out disease, protect commerce, and save lives. Municipal health departments were growing in size and sophistication. The New York City Board of Health even manufactured its own smallpox vaccine and diphtheria antitoxin. American governments enacted an array of public health measures, including yellow-fever quarantines and medical inspection of immigrants at the nation’s borders, work regulations in the industrial heartland, and antispitting ordinances and compulsory vaccination campaigns in the cities.24
Although health officials aimed above all to promote the public welfare, their methods could involve stunning levels of coercion, especially when they were dealing with thickly populated communities of African Americans, immigrants, and wage earners. The public health law expert James A. Tobey commented, “The famous Roosevelt doctrine to ‘speak softly, but carry a big stick’ is particularly applicable to public health work.” When urban health officials mobilized “virus squads” to fight smallpox in tenements and crowded workplaces, policemen’s clubs and physicians’ lancets worked in tandem. In 1906, the New York Tribune reported on a health board campaign to vaccinate schoolchildren in one of the city’s most concentrated neighborhoods of Russian Jewish immigrants. Rioting and panic ensued. As mothers and children struggled to rescue their children and friends from the vaccinators, throwing rocks at schoolhouse windows, police drove them back with wooden slats. The paper lamented the actions of the “excitable, ignorant Jews,” who knew “nothing of American sanitary ideas and the supervision exercised over school children by the Health Board . . . Such vaccination is always accomplished only by force in the Lower East Side.”25
Smallpox was the deadliest contagious disease in human history. Thomas Macaulay, the English historian, called it “the most terrible of all the ministers of death.” An outbreak spread fear among government officials and the public alike. Smallpox spread like a common cold or flu, from person to person in close contact, and it killed roughly a quarter of those whom it infected. The course of the disease was nightmarish—from the first, raging fever to the infamous eruptions on the face and body. Doctors could do little to alleviate the suffering. Most survivors had pitted scars all over their faces; many suffered permanent blindness. According to some estimates, smallpox killed more than 300 million people worldwide during the 20th century, before a tremendous international campaign secured the eradication of the disease in 1980.26
At the turn of the 20th century, smallpox was still a destructive force in American life. Between 1898 and 1903, the United States weathered a wave of smallpox epidemics that caused thousands of deaths. Outbreaks were reported in every state. The New York City Health Department reported 2,100 cases and 730 deaths. In Philadelphia, smallpox infected 2,500 people, killing nearly 400. New Orleans reported 1,500 cases and some 450 deaths from smallpox in 1900 alone.27
Smallpox vaccination had been practiced for over a century. The procedure lasted only a minute or two. The vaccinator took hold of the patient’s arm, scraped the skin with a knife or needle, and dabbed on a bit of vaccine—either by applying a few drops of liquid vaccine “lymph” from a glass tube or using a small piece ivory “point” coated with dry vaccine. The vaccine itself consisted of live cowpox or vaccinia virus, harvested from an oozing sore on the belly of an infected calf. If the virus “took,” it produced a blisterlike vesicle on the arm, leaving a permanent scar. A successful vaccination normally provided immunity from smallpox for five to seven years. Because smallpox spread from person to person, vaccination protected not only individuals, but also their families and communities. That was the medical and ethical rationale for compulsory vaccination. The officers of the U.S. Marine Hospital Service, the federal health agency, had no patience for citizens or officials who failed in their public duty: “The spread of the disease is so easily prevented under proper management that it is a disgrace to the sanitary authorities of any State, municipality or locality, whenever this disease is permitted to get beyond control.”28
By the turn of the 20th century, a vaccination scar on the upper arm had become a badge of American civilization and citizenship. Officers of the Marine Hospital Service checked scars and vaccination certificates as immigrants passed through Ellis Island and other points of entry. Compulsory vaccination of public schoolchildren was routine in most states, and as compulsory education laws became the norm in most places, vaccination became a state-mandated rite of childhood. During outbreaks, local health boards issued general vaccination orders, carried out by teams of physicians and police officers who burst into tenements and factories without warning. Vaccine refusal could result in the loss of a public benefit (education) or a personal right (such as the right to travel on trains and ships) or a penal sanction (a fine or imprisonment).29
The public policy of compulsory vaccination generated extraordinary levels of noncompliance and popular opposition. One of the nation’s leading public health officials, Charles V. Chapin of Providence, lamented that the United States was “the least vaccinated of any civilized country.” Americans formed local anticompulsory vaccination leagues and backed like-minded candidates for their school boards. In Utah and other states, the leagues pressed legislatures to ban compulsory vaccination. Working-class people resisted health authorities in innumerable ways—by concealing sick family members at home, procuring phony vaccination certificates, and scuffling with the police when the vaccinators arrived at tenements in the middle of the night. The newspapers and public health reports of the Progressive Era record countless episodes in local communities—from Alabama mining camps to Boston lodging houses to Filipino villages—where objections to vaccination were met with violent force. In an African American section of Middlesboro, Kentucky, during the winter of 1898, residents who refused to comply with a vaccination order were handcuffed and vaccinated at gunpoint.30
Given the dangers of smallpox, why would any rational person object to vaccination? At the turn of the 20th century, vaccination was an unpleasant and somewhat dodgy procedure. Governments went to great lengths to compel vaccination but did virtually nothing to ensure that the vaccines produced by commercial manufacturers were safe and effective. The risks of vaccination ranged from temporarily disabled arms to prolonged illnesses and, in rare cases, death. For people who worked with their hands, as most working-class Americans did, the prospect of an uncompensated loss of wages while a vaccination sore healed was reason enough to run or riot when the vaccinators showed up at the work site or tenement. African Americans were understandably wary of white doctors, who neglected their health needs in normal times, only to demand that they be the first to bare their arms during an epidemic. Christian Scientists and other faith-healing groups viewed compulsory vaccination as a violation of their religious freedom. Parents resented school vaccination requirements as an invasion of their domestic authority. Physicians who practiced alternative forms of medicine, which had been marginalized by state licensing laws in the late 19th century, decried compulsory vaccination as yet another encroachment on “medical freedom” by “state medicine.” The very fact of compulsion—especially when applied in an openly discriminatory manner—heightened the sense of risk that many people associated with vaccination.31
A colorful and provocative antivaccination literature wedded these wide-ranging concerns to an American rhetoric of personal liberty grounded in the common law and the Constitution. “Every man’s house is his castle,” declared the propagandist J. M. Peebles, “and upon the constitutional grounds of personal liberty, no vaccination doctor, lancet in one hand and calf-pox poison in the other, has a legal or moral right to enter the sacred precincts of a healthy home and scar a child’s body for life.” The passage illustrates the rhetorical range of these unlikely radicals: their righteous mixture of religion and constitutionalism, masculine prerogative and republican domesticity, a faith in clean living and a suspicion of “state medicine,” old-fashioned populism, and a new libertarianism that might have startled John Stuart Mill himself.32
Opponents of compulsory vaccination carried their arguments into the courtrooms. From 1890 through World War I, the American legal system handled hundreds of cases concerning compulsory vaccination, as litigants asked judges to restrain public health authority and protect their liberty. In the most common type of case, parents asked courts to order local school boards or principals to admit their unvaccinated children. Such was the position of George R. Mathews of Kalamazoo, Michigan, a Christian Scientist, who opposed compulsory vaccination as a violation of his “religious belief and scruples,” and Michael Breen, an Illinois farmer who asserted his presumed rights as “a resident and taxpayer.” In other cases, public school teachers such as Mary Helen Lyndall of Philadelphia sued for the right to enter their workplaces unvaccinated. Other litigants, including the North Carolina merchant W. E. Hay and a Georgia factory worker named Morris, challenged their treatment under general vaccination orders, insisting that compulsory vaccination constituted a form of bodily assault.33
In 1905, a Swedish Lutheran minister, an immigrant named Henning Jacobson, brought the vaccination question to the nation’s highest court. Jacobson had been summoned to police court in Cambridge, Massachusetts, for the crime of refusing vaccination. Jacobson and his lawyers draw upon the rich legal rhetoric developed in fifteen years of antivaccination activism and litigation, and their brief for the “plaintiff in error” showed just how far those individual rights claims had developed.34
From the start, opponents of compulsory vaccination had faced an uphill battle in the courts. They argued that compulsory vaccination represented a radical and invasive new form of governmental power, wholly different from the physical restraint imposed by quarantine. In their legal briefs, litigants and their lawyers moved the logic of substantive due process onto a new terrain—from the field of contract and property rights to the domain of personal liberty and bodily integrity. Jacobson and his lawyers made the case that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best.”35
The Supreme Court’s two most conservative justices—David Brewer and Rufus Peckham—sided with Jacobson. (They did not explain their thinking in a dissenting opinion.) Writing for the majority, Justice John Marshall Harlan ruled that it was well within the police power of a state to compel vaccination: “Upon the principle of self-defense, of paramount necessity,” he wrote, “a community has the right to protect itself against an epidemic.” As had other state judges before him, Harlan compared this public right to powers necessarily exercised for the national defense. An individual could be compelled to undergo vaccination, just as he could be ordered by the government, without regard to his political or religious beliefs, to “take his place in the ranks of the army of his country and risk the chances of being shot down in its defense.” Harlan’s language also resonated with progressive political ideas. “There are manifold restraints to which every person is necessarily subject for the common good,” he declared. “On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”36
The Jacobson decision was a strong endorsement of police power—but it was nothing like a blank check. In recent years, vaccination litigants had nudged the state courts toward a more cautious balancing of administrative power and individual rights. Harlan himself emphasized that public health power rested upon “the necessities of the case”—in this instance, the presence of smallpox in the community. And even during an epidemic, a health board might go too far. The power of a local community to protect itself against a deadly epidemic, Harlan wrote, “might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” Harlan did not contemplate specific instances. But several other courts already had. In 1900, a federal court invoked the Fourteenth Amendment’s Equal Protection Clause, as it ordered San Francisco officials not to enforce a quarantine regulation that imposed a vaccine requirement (for bubonic plague) exclusively upon Chinese residents. In 1902, in its ruling on the Jacobson case, the Supreme Judicial Court of Massachusetts had said that the state’s legitimate right to enforce vaccination stopped short of physical force. That was a direct repudiation of forcible vaccination, a brutal practice that had been widely reported in the newspapers of Boston, New York, and other communities. Significantly, at the end of his opinion for the U.S. Supreme Court, Justice Harlan cautioned that the courts might well step in to protect an adult for whom vaccination, due to “a particular condition of his health or body[,] would be cruel and inhuman in the last degree.” The plain words of the statute contained no such medical exemption for adults.37
In the long Progressive Era struggle over compulsory vaccination, principled demands for personal liberty clashed repeatedly with the police power of the state. Although the medical profession and the press roundly ridiculed the antivaccinationists and their ideas, their arguments linked a distinctly modern libertarian sensibility to broader social concerns about the rising cultural authority of medicine and the growth of administrative power. Public health authorities, engaged in a high-stakes scientific enterprise to protect the public welfare, too readily shrugged off the violence and coercion involved in their work. Coercion and discriminatory enforcement only elevated concerns about the risks of a life-saving medical procedure, resulting in per capita vaccination levels that were, at least in the eyes of health officials, a public disgrace. The opponents of compulsory vaccination left an enduring mark on American law. While the courts usually sided with public health authorities, some courts—including, most improbably, the U.S. Supreme Court—were sufficiently moved by the plaintiffs’ claims to carve out important new standards for reviewing, and even restraining, the actions of lawmakers and public health boards.
In the 1920s, American public health officials, by then emphasizing education and “the promotion of positive health” through personal hygiene, would look back on the turn-of-the-century health campaigns with some degree of embarrassment. “Police work is not pleasant work,” the veteran Rhode Island public health official Charles V. Chapin mused in 1921. “It is slow work, and he who does it finds it difficult to obtain the good will of those whom he coerces.”38
Free Speech Fights Before World War I
Americans tested the boundaries of free speech in countless public controversies during the two decades before the United States entered World War I. In an era of almost unremitting judicial hostility to free speech claims of all sorts, a bold defense of free assembly and expression arose from a diverse cast of people: liberals, socialists, anarchists, suffragists, sex radicals, birth control activists, antiimperialists, propagandists for medical freedom, and the radical unionists of the Industrial Workers of the World (IWW). These people made their case for free speech by practicing it—from theater stages to magazine pages to just about anywhere they could park a wagon or throw down a soapbox. All too frequently, they ended up arrested and in court. And then they, along with the pioneering civil liberties lawyers who sometimes represented them, turned the courtrooms themselves into arenas of free speech propaganda.
As the historian David M. Rabban persuasively argues in his book Free Speech in Its Forgotten Years, the defense of free speech in the modern United States has a longer and more variegated history than most conventional histories would suggest. The fight for free speech “did not begin with the respectable professionals who founded the ACLU after World War I,” Rabban writes. “Before most of these people even thought about the subject, an even smaller and braver group of libertarian radicals, often on the intellectual and social fringes of American society, advocated a much more protective conception of free speech that extended well beyond political expression.” Most of these radical defenders of free speech, Rabban notes, were as critical of the ruthless individualism of laissez-faire capitalism as they were skeptical of the progressives’ paeans to social cohesion. At the heart of their diverse causes was an uncompromising defense of individual autonomy against an increasingly powerful state.39
The American legal environment—which the brilliant, Russian-born anarchist Emma Goldman tauntingly likened to czarist rule—was decidedly unfavorable to free speech claims. According to the prevailing constitutional jurisprudence, the First Amendment applied only to Congress; its protections of speech and assembly had not yet been held to extend to states via the Fourteenth Amendment. In court cases involving speech, judges applied the so-called bad tendency test. The common law standard forbade prior restraint of speech, but it allowed the government free rein to punish individuals for expression that tended to “harm the public welfare.” As Rabban observes, “In striking contrast to their increased oversight of economic and social legislation that infringed ‘liberty of contract’ and property rights, judges gave great deference to the ‘police power’ of legislators and administrators to determine the tendency of speech.” There was little to stop state and local governments from banning the display of red flags or barring radical parades and mass meetings from the central business districts. Municipal police forces kept a close watch on radicals. When officers were ready to make an arrest, they drew upon a set of ill-defined criminal charges, from “disorderly conduct” to “inciting to riot.”40
As the newspapers, police reports, and court records of the early 20th century amply attest, many of the free speech fights of the Progressive Era involved anarchists. Goldman, the most famous anarchist of the period, defined anarchism as “[t]he philosophy of a new social order based on liberty unrestricted by man-made law; the theory that all forms of government rest on violence and are therefore wrong and harmful, as well as unnecessary.” Many anarchists in Europe and the United States were content to leave their politics at the level of philosophy and protest. Some supported or engaged in acts of terrorism (“propaganda by the deed”), including bombings and assassinations. The frightening trope of the alien anarchist—bearded, wild-eyed, and ready to blow—was a fixture of newspaper stories and political speeches throughout the era.41
Ever since the infamous Haymarket Square bombing rocked Chicago and the nation in 1886, American communities had cracked down on anarchists with episodic fury. In 1901, the assassination of President William F. McKinley by Leon Czolgosz, an American-born avowed anarchist who claimed to have been inspired in part by Goldman’s teachings, triggered frenzied public demands for a crackdown. Congress enacted the 1903 Alien Immigration Act, forbidding entry to the United States to foreign anarchists, as well as polygamists, “idiots,” “persons likely to become a public charge,” and persons “afflicted with a loathsome or with a dangerous contagious disease.” The law reflected the common claim that anarchist ideas were alien and deadly contagions. Congress had made no clear distinction between so-called philosophical anarchists and terrorists. Meanwhile, new state laws, such as New York’s 1902 criminal anarchy statute, made it a crime to publish, teach, or assemble in support of anarchist beliefs.42
Radicals and their liberal supporters in the small and protean free speech movement recognized that the suppression of anarchism constituted an assault on expression, not just an attempt to prevent terrorist acts. In October 1903, John Turner, a British anarchist of the philosophical type, was arrested in New York while visiting the United States on a speaking tour, and he was taken to Ellis Island for a deportation hearing under the new federal law. To Turner’s aid came the recently formed, New York–based Free Speech League, a small band of libertarian intellectuals, lawyers, and muckraking journalists. Goldman, who was closely involved with the league, helped persuade Turner to make his appeal a test case for the new law, and the league helped pay for his legal team. The lawyers Clarence Darrow and Edgar Lee Masters took Turner’s case all the way to the U.S. Supreme Court.43
Turner’s brief challenged the immigration law on several fronts, notably arguing that the statute violated the First Amendment by abridging freedom of speech and religion (in this case, the freedom of “disbelief”). Darrow and Masters also challenged, on constitutional grounds, the administrative process established by the law: it provided for alien deportation proceedings conducted by a “secret” Board of Special Inquiry, without the basic procedural rights of a court.44
The Court unanimously affirmed Congress’s authority to bar foreigners from U.S. soil for their alleged anarchist beliefs. Chief Justice Melville Fuller’s opinion said that the Court found itself “at a loss to understand” how the First Amendment had any bearing at all on Turner’s case. In one of his more quotable moments, Fuller invoked John Milton’s Paradise Lost to describe the plenary power of Congress to keep alien anarchists from the gates of the United States: “The flaming brand which guards the realm where no human government is needed still bars the entrance; and as long as human governments endure they cannot be denied the power of self-preservation, as that question is presented here.”45
Government repression turned American anarchists like Emma Goldman into staunch advocates of free speech. During the next fifteen years, until her federal incarceration in 1918 (for conspiring to obstruct the wartime draft) and her eventual deportation as an “alien anarchist,” Goldman continually provoked the government with her public acts of radical speech. Through her incendiary little magazine Mother Earth and her national lecture tours, she addressed huge audiences from theater stages and in public squares on the topics of anarchism, birth control, Russian literature, and the promise of the Bolshevik Revolution.
Arrested dozens of times for her words, and detained or incarcerated for periods ranging from a few hours to nearly two years, Goldman effectively turned her court proceedings into occasions to promote her beliefs and expose government oppression. In her autobiography, she explained why she had once gone so far as to seek a court injunction to enable her to speak in Philadelphia. “I had no faith in legal procedure,” she wrote, “but my friends argued that if I refused, the police would undoubtedly continue their tactics, whereas a legal fight would focus public attention on their Russian methods of trying to gag me.” By the time of her deportation—to Soviet Russia—in December 1919, Goldman had become one of the Progressive Era’s most important fighters for the right to practice of radical speech. Her example inspired radicals and liberals alike, including Roger Nash Baldwin, who founded the American Civil Liberties Union in New York in 1920.46
Like the anarchists, with whom they collaborated, the radical syndicalists of the IWW professed little faith in the forms and institutions of the law. “The Industrial Workers of the World is without doubt the most revolutionary body in the world to-day,” an IWW pamphlet declared. “To it has come the knowledge that justice, liberty, rights, etc., are but empty words, and power alone is real.” Founded in 1905, the IWW was an industrial union that rejected the institutional model and political tactics of the nation’s largest labor organization, the American Federation of Labor (AFL). The AFL organized skilled workers by trade and pursued collective bargaining with employers; the IWW strived to organize the great mass of unskilled workers into “one big union,” and the IWWs (also known as the “Wobblies”) advocated the overthrow of capitalism. The IWWs favored “direct action,” which included everything from strikes, picketing, and parades to slowdowns and various forms of workplace sabotage. They also made a great effort to spread their message and recruit new members from the street corners of American cities. Police frequently arrested IWW speakers, citing local ordinances that prohibited public speech in designated areas. And some IWW leaders actively sought out clashes with the police. Full-blown “free speech fights” took place in more than two dozen American communities. During the 1910s, the IWWs were not just labor organizers—they were some of the most visible agitators for First Amendment rights in the country.47
The IWW organizer Elizabeth Gurley Flynn became one of the era’s best-known soapbox orators. An ardent believer in the rights of women as well as labor (causes that, of course, intersected), Flynn spoke out in cities across the United States for the IWW, women’s suffrage, and birth control. (One of Flynn’s contemporaries, Margaret Sanger, also took great risks to agitate for birth control as a basic right of women.) Once, following one of her many arrests, Flynn explained her method to a reporter: “I agitate a listener. I know how to get the power out of my diaphragm instead of my vocal cords and I’m happy to be free to give capitalism hell.”48
Like the Progressive Era’s innumerable skirmishes against compulsory vaccination, which gave rise to distinctly modern demands for judicial protection of bodily autonomy and medical freedom, the dramatic and wide-ranging free speech fights of the early 20th century may not have moved the sticks very far down the field. They did not change the black letter of the law, nor did they create broad public support for labor syndicalism, anarchism, birth control, medical liberty, or the many other causes for which these American radicals spoke. But if they did not change the law itself, these free speech struggles indisputably shaped the legal culture in the broadest sense. Their fights kept the question of free speech almost constantly before the public for more than a decade prior to World War I. In the wake of that war, and the sweeping government suppression of dissent that it brought, civil liberties lawyers, scholars, and a few American judges would strive to fulfill the promise of the First Amendment. The postwar movement took the fight for civil liberties in new directions. But it built upon the struggles of those earlier 20th-century radicals and individualists, who had fought to defend liberty, as they themselves defined it, in an era of rapidly increasing state power.
Discussion of the Literature
There is a wonderful historical literature about the broad and consequential transformation of social and political ideas during the Progressive Era. Many of the best recent works treat American progressive social politics in an international context, carefully tracing progressivism’s relationship to the revolt against laissez-faire and the development of social democratic movements in Europe. See especially James T. Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920, and Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age.49 Louis Menand, in The Metaphysical Club: A Story of Ideas in America, focuses chiefly on the emergence of pragmatism in American culture.50
The literature on the diverse social reform movements of the era is vast and still growing, even though, for at least three decades, scholars have warned against any effort to define progressivism itself as a monolithic movement. For an insightful introduction to that basic problem of definition, see Daniel T. Rodgers, “In Search of Progressivism.”51 For a useful overview of the literature, see Robert D. Johnston, “The Possibilities of Politics: Democracy in America, 1877–1917.”52 For the classic narratives, see Richard Hofstadter, The Age of Reform: From Bryan to F.D.R., and Robert H. Wiebe, The Search for Order, 1877–1920.53 For more recent synthetic accounts that incorporate social history and class and gender analysis, see Nell Irvin Painter, Standing at Armageddon: The United States, 1877–1919; Alan Dawley, Struggles for Justice: Social Responsibility and the Liberal State; and Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920.54 For a political narrative that foregrounds the role of farmers, see Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877–1917.55 And for an account of American populism that illuminates the strong connections of populist visions of modernity to progressive reform ideas, see Charles Postel, The Populist Vision.56
There is a rich and growing body of interdisciplinary literature on the political development of the modern administrative state in the United States. For a provocative introduction to the literature, see William J. Novak, “The Myth of the ‘Weak’ American State.”57 On the federal administrative state, see Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920, and Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States.58 Skocpol’s book also provides an in-depth analysis of social movements and the enactment of state social legislation, and it is a comprehensive introduction to a larger literature on gender and the welfare state. See also Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of Welfare, 1890–1935.59
For accounts that examine the legal history of the state, see Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law; Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920; Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago; and John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law.60 See generally William E. Forbath, “Politics, State-Building, and the Courts, 1870–1920.”61
A number of new historical narratives of the Progressive Era examine the ambivalence and contestation that attended the rise of the modern administrative state in the United States. This is a central theme of Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy.62 See also Karl Jacoby, Crimes against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation; Robert D. Johnston, The Radical Middle Class: Populist Democracy and the Question of Capitalism in Progressive Era Portland, Oregon; and Michael Willrich, Pox: An American History.63
Histories of public health capture the social conflict that attended the growth of preventive medicine and modern health departments. In addition to Willrich, Pox, see Warwick Anderson, Colonial Pathologies: American Tropical Medicine, Race, and Hygiene in the Philippines; James Colgrove, State of Immunity: The Politics of Vaccination in Twentieth-Century America; Johnston, The Radical Middle Class; Alan M. Kraut, Silent Travelers: Germs, Genes, and the “Immigrant Menace”; Nayan Shah, Contagious Divides: Epidemics and Race in San Francisco’s Chinatown; Karen L. Walloch, The Antivaccine Heresy: Jacobson v. Massachusetts and the Troubled History of Compulsory Vaccination in the United States; and Owen Whooley, Knowledge in the Time of Cholera: The Struggle over American Medicine in the Nineteenth Century.64
Much of the best historical literature on freedom of speech has focused, for very good reason, on wartime. See especially Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech; Geoffrey R. Stone, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism; and Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen.65 But the dramatic social transformations of the late 19th and early 20th centuries helped make speech a valued and highly contested freedom. That struggle receives its fullest treatment in David M. Rabban, Free Speech in its Forgotten Years.66 For a history that charts the transformation of the radical, early-20th-century conception of civil liberties into a modern (and more limited) version centered on judicial protection of political speech, see Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise.67
Legal treatises—authoritative works that deal systematically with specific areas of the law—provide an excellent point of entry for research in the social history of law and the state. Treatises also provide citations to court cases, which can be found using any number of digital databases, including HeinOnLine and Lexis-Nexis. The indispensable treatise on the growth of social and economic regulation from the Civil War to the turn of the 20th century is Ernst Freund, Police Power: Public Policy and Constitutional Rights.68 On the law of public health, see James A. Tobey, Public Health Law: A Manual of Law for Sanitarians.69 John Dickinson’s treatise, Administrative Justice and the Supremacy of Law in the United States, explores the fraught tension between the administrative state and the rule of law tradition.70
A great many vivid and culturally revealing episodes of social and legal conflict from the early 20th century survive in the era’s vast output of newspapers, government documents, and periodicals, including medical journals and law reviews. For a stunning documentary collection of the remarkable life and times of Emma Goldman, see Emma Goldman Papers: A Microfilm Edition, edited by Candace Falk et al.71 With the exception of a few reels, the entire microfilm edition is now available in digital form at the Internet Archive.
Avrich, Paul, and Karen Avrich. Sasha and Emma: The Anarchist Odyssey of Alexander Berkman and Emma Goldman. Cambridge, MA: Belknap, 2012.Find this resource:
Forbath, William E. Law and the Shaping of the American Labor Movement. Cambridge, MA: Harvard University Press, 1992.Find this resource:
Gerstle, Gary. Liberty and Coercion: The Paradox of American Government from the Founding to the Present. Princeton, NJ: Princeton University Press, 2015.Find this resource:
Jacoby, Karl. Crimes Against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation. Berkeley: University of California Press, 2001.Find this resource:
Johnston, Robert D. The Radical Middle Class: Populist Democracy and the Question of Capitalism in Progressive Era Portland, Oregon. Princeton, NJ: Princeton University Press, 2003.Find this resource:
Keller, Morton. Regulating a New Society: Public Policy and Social Change in America, 1900–1933. Cambridge, MA: Harvard University Press, 1994.Find this resource:
Kloppenberg, James T. Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920. New York: Oxford University Press, 1986.Find this resource:
Menand, Louis. The Metaphysical Club: A Story of Ideas in America. New York: Farrar, Straus and Giroux, 2001.Find this resource:
Milkis, Sidney M. Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy. Lawrence: University Press of Kansas, 2009.Find this resource:
Novak, William J. “The Myth of the ‘Weak’ American State.” American Historical Review, 113 (2008): 752–772.Find this resource:
Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.Find this resource:
Rodgers, Daniel T. Atlantic Crossings: Social Politics in a Progressive Age. Cambridge, MA: Belknap, 1998.Find this resource:
Skocpol, Theda. Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States. Cambridge, MA: Belknap, 1992.Find this resource:
Welke, Barbara Young. Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920. New York: Cambridge University Press, 2001.Find this resource:
Willrich, Michael. City of Courts: Socializing Justice in the Progressive Era. New York: Cambridge University Press, 2003.Find this resource:
Willrich, Michael. Pox: An American History. New York: Penguin Press, 2011.Find this resource:
(1.) See James T. Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford University Press, 1986); Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Belknap, 1998); and Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (New York: Cambridge University Press, 2003).
(2.) For an overview of the period, see Maureen A. Flanagan, America Reformed: Progressives and Progressivisms, 1890–1920s (New York: Oxford University Press, 2006).
(3.) Progressive Party Platform of 1912. The best recent history of the 1912 election is Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy (Lawrence: University Press of Kansas, 2009).
(4.) See Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001); Willrich, City of Courts.
(5.) John Dewey, “Logical Method and Law (1924),” in The Essential Dewey, Volume 1: Pragmatism, Education, Democracy, ed. Larry A. Hickman and Thomas M. Alexander (Bloomington, IN: Indiana University Press, 1998), 361. See Eric Foner, The Story of American Freedom (New York: W. W. Norton, 1998), 152–161.
(6.) Walter Lippmann, Drift and Mastery: An Attempt to Diagnose the Current Unrest, with rev. introduction and notes by William E. Leuchtenberg (Madison: University of Wisconsin Press, 1985), 31.
(7.) Rodgers, Atlantic Crossings, 2.
(8.) Rodgers, Atlantic Crossings, 79.
(9.) Francis Amasa Walker, “Recent Progress of Political Economy in the United States,” 1898 presidential address before the American Economic Association, in Francis Amasa Walker, Discussions in Economic and Statistics (New York: Henry Holt, 1899), vol. I: 328.
(10.) Jane Addams, “A New Conscience and an Ancient Evil: Chapter V. Social Control,” McClure’s Magazine, March 1912, 598; Harry Hamilton Laughlin, Eugenical Sterilization in the United States (Chicago: Psychopathic Laboratory of the Municipal Court of Chicago, 1922), 323; Crystal Eastman, Work-Accidents and the Law (New York: Russell Sage Foundation, 1910); Beverly Gage, The Day Wall Street Exploded: A Story of America in its First Age of Terror (New York: Oxford University Press, 2009), 5. See Thomas L. Haskell, The Emergence of Professional Social Science: The American Social Science Association and the Nineteenth-Century Crisis of Authority (Urbana: University of Illinois Press, 1977); Willrich, City of Courts; John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge, MA: Harvard University Press, 2004).
(11.) Kloppenberg, Uncertain Victory, 3.
(12.) The classic analysis is Samuel P. Hays, “The Politics of Municipal Government in the Progressive Era,” Pacific Northwest Quarterly, 55 (1964): 157–169. See Maureen A. Flanagan, Charter Reform in Chicago (Carbondale, IL: Southern Illinois University Press, 1987); Louis Martin J. Schiesl, The Politics of Efficiency: Municipal Administration and Reform in America, 1880–1920 (Berkeley: University of California Press, 1977); Shelton Stromquist, “The Crucible of Class: Cleveland Politics and the Origins of Municipal Reform in the Progressive Era,” Journal of Urban History, 23 (1997): 192–220.
(13.) Legal scholars of the early 20th century raised serious concerns about the emergence of the administrative state. See John Dickinson, Administrative Justice and the Supremacy of Law in the United States (Cambridge, MA: Harvard University Press, 1927).
(14.) On the emergence of the federal administrative state, see Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982); and Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap, 1992).
(15.) William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991), 59–97, 104–105. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap, 1992); Willrich, City of Courts.
(16.) Welke, Recasting American Liberty, 351–352; Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America (New York: Oxford University Press, 2003), 182–218.
(17.) Forbath, Law and the Shaping of the American Labor Movement, 38, and 38 n. 7. For a contrary view, see Melvin I. Urofsky, “State Courts and Protective Legislation During the Progressive Era: A Reevaluation,” Journal of American History, 72 (1985): 63–91. For a concise discussion of the development of substantive due process during this period, see David P. Currie, The Constitution in the Supreme Court: The Second Century, 1888–1986 (Chicago: University of Chicago Press, 1990), 40–50. Currie notes that “even in those days most laws challenged under the due process and equal protection clauses passed muster.” Ibid., 41. And for a contemporary account of the same phenomena, see Andrew Alexander Bruce, “The Attitude of the Courts Towards the Great Industrial Struggle,” Banking Law Journal, 23 (1907): 606–612.
(18.) Lochner v. New York, 198 U.S. 45, 57, 61, 75 (1905).
(19.) Muller v. Oregon, 208 U.S. 412 (1908); Skocpol, Protecting Soldiers and Mothers, 373–423.
(20.) Roscoe Pound, “Liberty of Contract,” Yale Law Journal, 18 (1909): 454. Gilbert E. Rowe, Our Judicial Oligarchy (New York: B. W. Huebsch, 1912); Owen M. Fiss, The History of the Supreme Court of the United States, vol. 8: Troubled Beginnings of the Modern State, 1888–1910 (New York: Cambridge University Press, 2006), 3–5.
(21.) Charles Edward Merriam, American Political Ideas in the Development of American Political Thought, 368–369. See “Document: Speech by Louis Brandeis on True Americanism (July 5, 1915), in Ideas and Movements That Shaped America: From the Bill of Rights to “Occupy Wall Street,” eds. Michael S. Green and Scott L. Stabler (Santa Barbara: ABC-CLIO, 2015), vol. 1: 34–37.
(22.) On Chinese-American legal action, see Charles J. McClain, In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America (Berkeley: University of California Press, 1996); and Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995). On the wide-ranging intellectual and political responses of African Americans to the rise of Jim Crow, see Thomas C. Holt, Children of Fire: A History of African Americans (New York: Hill and Wang, 2010), 185–236. On the fight against eugenics, see Sharon M. Leon, An Image of God: The Catholic Struggle with Eugenics (Chicago: University of Chicago Press, 2013).
(23.) Gibbons v. Ogden, 9 Wheat. 1 (U.S., 1824); Ernst Freund, Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan, 1904), iii. See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 191–233.
(24.) For an introduction, see John Duffy, The Sanitarians: A History of American Public Health, reprint ed. (Urbana: University of Illinois Press, 1992). See also Nancy Tomes, The Gospel of Germs: Men, Women, and the Microbe in American Life (Cambridge, MA: Harvard University Press, 1998).
(25.) James A. Tobey, Public Health Law: A Manual of Law for Sanitarians (Baltimore: Williams & Wilkins, 1926), 1. “East Side Women Riot,” New York Tribune, June 28, 1906, 14.
(26.) Thomas Macaulay, quoted in Donald R. Hopkins, Princes and Peasants: Smallpox in History (Chicago: University of Chicago Press, 1983), 38. See also Michael Willrich, Pox: An American History (New York: Penguin Press, 2011).
(27.) Willrich, Pox, 10–11. See also Michael Willrich, “ ‘The Least Vaccinated of Any Civilized Country,’: Personal Liberty and Public Health in the Progressive Era,” Journal of Policy History, 20 (2008): 76–93.
(28.) Willrich, Pox, 4. Willrich, “The Least Vaccinated,” 80–81.
(29.) Willrich, Pox, ch. 6.
(30.) Charles V. Chapin, “Variation in Type of Infectious Disease as Shown by the History of Smallpox in the United States, 1890–1912,” Journal of Infectious Diseases, 13 (1913): 194. Willrich, “The Least Vaccinated,” 77. Willrich, Pox, 58.
(31.) See Willrich, Pox, esp. chs. 6–7.
(32.) Willrich, “The Least Vaccinated,” 82–83.
(33.) Willrich, Pox, ch. 8, esp. p. 308.
(34.) Jacobson v. Massachusetts, 197 U.S. 11 (1905).
(35.) Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).
(36.) Jacobson v. Massachusetts, 197 U.S. 11, 27, 26 (1905).
(37.) Jacobson v. Massachusetts, 197 U.S. 11, 28, 38–39 (1905). Willrich, Pox, 319, 321.
(39.) David M. Rabban, Free Speech in Its Forgotten Years (New York: Cambridge University Press, 1997), 23.
(40.) Rabban, Free Speech in Its Forgotten Years, 132.
(41.) Mother Earth, July 1914, 168. See, for example, “The Red Peril: Its Remedy,” Chicago Tribune, September 8, 1901, 8. “5,000 at Memorial to Anarchist Dead,” New York Times, July 12, 1914, p. 3; “Anarchists and the Police,” New York Times, March 31, 1914, p. 10. “Anarchists Deny Responsibility for Dynamiting,” San Francisco Chronicle, July 25, 1916, p. 3.
(42.) 1903 statute quoted in Turner v. Williams, 194 U.S. 279, 284 (1904). See also Freund, Police Power, 510–513.
(43.) Turner v. Williams, 194 U.S. 279 (1904). See Julia Rose Kraut, “Global Anti-Anarchism: The Origins of Ideological Deportation and the Suppression of Expression,” Indiana Journal of Global Legal Studies, 19 (Winter 2012): 169–193; Rabban, Free Speech in its Forgotten Years, 64–65.
(44.) Turner v. Williams, 194 U.S. 279, 286 (1904).
(45.) Turner v. Williams, 194 U.S. 279, 292, 294 (1904).
(46.) Emma Goldman, Living My Life (New York: Alfred A. Knopf, 1931), vol. 1: 457; Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990).
(47.) Sixty-Sixth U.S. Congress, House of Representatives, Committee on Immigration and Naturalization, I.W.W. Deportation Cases, Statement of W.A. Blackwood (Washington: Government Printing Office, 1920), 77–78.
(48.) Flynn quoted in Mary Anne Trasciatti, “Athens or Anarchy? Soapbox Oratory and the Early Twentieth-Century American City,” Buildings and Landscapes, 20 (2013), 46.
(49.) Kloppenberg, Uncertain Victory; and Rodgers, Atlantic Crossings.
(50.) Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus, and Giroux, 2001).
(51.) Daniel T. Rodgers, “In Search of Progressivism,” Reviews in American History, 10 (December 1982): 113–132.
(52.) Robert D. Johnston, “The Possibilities of Politics: Democracy in America, 1877–1917,” in American History Now, ed. Eric Foner and Lisa McGirr (Philadelphia: Temple University Press, 2011), 96–124.
(53.) Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York: Alfred A. Knopf, 1955); and Robert H. Wiebe, The Search for Order, 1877–1920 (New York: Hill and Wang, 1967).
(54.) Nell Irvin Painter, Standing at Armageddon: The United States, 1877–1919 (New York: W. W. Norton, 1987); Alan Dawley, Struggles for Justice: Social Responsibility and the Liberal State (Cambridge, MA: Belknap, 1991); and McGerr, A Fierce Discontent.
(55.) Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (Chicago: University of Chicago Press, 1999).
(56.) Charles Postel, The Populist Vision (New York: Oxford University Press, 2007).
(57.) William J. Novak, “The Myth of the ‘Weak’ American State,” American Historical Review, 113 (2008): 752–772.
(58.) Skowronek, Building a New American State; and Skocpol, Protecting Soldiers and Mothers.
(59.) Linda Gordon, Pitied but Not Entitled: Single Mothers and the History of Welfare, 1890–1935 (New York: Free Press, 1994).
(60.) Salyer, Laws Harsh as Tigers; Welke, Recasting American Liberty; Willrich, City of Courts; and Witt, The Accidental Republic.
(61.) William E. Forbath, “Politics, State-Building, and the Courts, 1870–1920.” in The Cambridge History of Law in America, vol. II: The Long Nineteenth Century (1789–1920), ed. Michael Grossberg and Christopher Tomlins (New York: Cambridge University Press, 2008), 643–696.
(62.) Milkis, Theodore Roosevelt.
(63.) Karl Jacoby, Crimes against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation (Berkeley: University of California Press, 2001); Robert D. Johnston, The Radical Middle Class: Populist Democracy and the Question of Capitalism in Progressive Era Portland, Oregon (Princeton, NJ: Princeton University Press, 2003); and Willrich, Pox.
(64.) Warwick Anderson, Colonial Pathologies: American Tropical Medicine, Race, and Hygiene in the Philippines (Durham, NC: Duke University Press, 2006); James Colgrove, State of Immunity: The Politics of Vaccination in Twentieth-Century America (Berkeley: University of California Press, 2006); Johnston, The Radical Middle Class; Alan M. Kraut, Silent Travelers: Germs, Genes, and the “Immigrant Menace” (Baltimore: Johns Hopkins University Press, 1994); Nayan Shah, Contagious Divides: Epidemics and Race in San Francisco’s Chinatown (Berkeley: University of California Press, 2001); Karen L. Walloch, The Antivaccine Heresy: Jacobson v. Massachusetts and the Troubled History of Compulsory Vaccination in the United States (Rochester, NY: University of Rochester Press, 2015); and Owen Whooley, Knowledge in the Time of Cholera: The Struggle over American Medicine in the Nineteenth Century (Chicago: University of Chicago Press, 2013).
(65.) Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (Ithaca, NY: Cornell University Press, 1987); Geoffrey R. Stone, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton., 2005); and Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York: Oxford University Press, 2008).
(66.) Rabban, Free Speech in its Forgotten Years.
(67.) Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise (Cambridge, MA: Harvard University Press, 2016).
(68.) Freund, Police Power.
(69.) Tobey, Public Health Law.
(70.) Dickinson, Administrative Justice.
(71.) Candace Falk, et al., eds., Emma Goldman Papers: A Microfilm Edition (Alexandria, VA: Chadwyck-Healey, 1991).