The Forgotten Constitutional Freedom
A Dearth of Rationality
the United States the steady passage of new federal laws and official
regulations for eighty years has created a crazy quilt of often
contradictory prohibitions, subsidies and legal rights.
The United States Code now fills two long bookshelves with the
Code of Federal Regulations occupying twice that shelf space in the law
At once, for instance, the United States subsidizes tobacco farmers for
producing their harvest and then plunders and terrorizes the cigarette
industry who process the product for consumer use.
When the civil rights movement for racial equality succeeded in 1964 in
ending official segregation as a lawful practice, what followed were
racial quotas and legal preferences in a new form of racial lawmaking.
The First Amendment right to free speech is as simple and comprehensive
a limit on government as can be found in the law.
It is also the “right” most cherished by Americans.
But to suppress free speech the Congress and the President create
secrecy laws concerning government activities meant to hound potential
whistleblowers into remaining silent on the threat of decades of
Political opponents of the powerful in office who speak out about
official abuses are subject to the fear and blackmail fostered by the US
mass surveillance state, a largely hidden branch of government that is
based on different federal laws than the Bill of Rights.
How did the mountain of federal decrees become so myopic as to be comic
in so many ways? Is it true
the Congress at a given time can be bought or otherwise persuaded of
just about anything, even opposing things at the same time?
Consistency in the law is no serious requirement anymore.
The law is now as transitory and confusing as the weather is.
It was not always so.
The American Way
From the passage of the US Constitution in 1792 until the time of the 20th
Century Great Depression 140-years later, the Congress simply had no
authority to pass laws to manage the national economy or to delve into
overseeing the day-to-day activities of citizens and businesses in many
Standing in the way was the history-long dedication of the nation to
free market capitalism and rugged individualism.
The American national creed was anathema to vast new powers in
the Congress for directing the economy.
The nation demanded a level playing-field for all in the
Beyond tradition, this lassie faire American economic model was enforced
by the Constitution itself.
This fundamental American liberty to freely engage in commerce, so
central to the workings of the American Dream, was the firmest of
barriers against a craven, power mad Congress screwing up the plans and
dreams of its citizens.
In 1905 the constitutional right to contract of every American was
affirmed resoundingly by the US Supreme Court in striking down a New
York maximum work-hours law.
Lochner v. New York
Even the States had to protect the constitutional right to contract.
It was the sudden abolition of this basic liberty from the operation of
the Constitution in short order that has directly led to the many
tyrannies and contradictions from Washington, D.C. that are strangling
the nation today.
Birth of the Goliath
The goliath central government in the United States was born of
desperation, as is often the case in human affairs, a forced
collectivization of diverse peoples in an existential crisis, like war
or economic implosion.
With the coming to office of President Franklin Delano Roosevelt in 1933
the nation remained in an economic dead-end like never before, beginning
with the 1929 stock market crash. The Great Depression was the first big
financial bust spawned by bubble-blowing at the Federal Reserve through
cheap credit for the wealthy and powerful.
President Hoover had tried to stimulate the national economy in the wake
of the bust through increased federal spending on crisis relief and the
issuance of more cheap credit by the Federal Reserve, including becoming
“lender of last resort” to banks.
These new-fangled economic remedies so far clearly were not working.
Ramshackle “Hoovervilles” and soup-lines dotted the nation till
the day Hoover left office.
They would be destined to last far, far longer.
The decision was made by FDR to double-down on Keynesian
monetary-priming and to add a host of new work programs and economic
dictates to industry and agriculture that would all allegedly lead to
rediscovering economic growth through this top-down management by FDR.
The New Deal brought the SEC, the FDIC, the NLRB, the PWA, and the
infamous WPA (We Play Around), all among other snappy, so-modern
acronyms. Amid all of the
optimism and faith in the bold, new government, for the first time in
the history of the nation forced-collectivism by federal edict was on
the rapid upswing. Most of
the States were now getting into the act, too.
What contradicted this political and cultural revolution invented by FDR
and his one party Congress was the constitutional “right to contract”,
the only solely economic liberty established by the Constitution and
made incumbent upon the States by the passage of the 14th
Amendment to the Constitution. The
Constitution guarded against the infringement of this basic liberty,
even by FDR, or by any level of government.
The “right to contract” stood its ground at the apex of American law for
a time during this historic 20th Century clash, striking down
New Deal forced-collectivism along the way. The NRA (National Recover
Administration) designed to limit industrial competition and to set
prices at a higher rate was held unconstitutional.
Schechter Poultry Corp. v. United States
The AAA (Agriculture Adjustment
Administration) designed to reduce crop sizes and to raise prices was
also struck down, among other laws.
United States v. Butler
Eventually though the battle would be lost in 1937 by the supporters of
a bottom-up economy through the official crowning of the Congress and
the States, by the US Supreme Court, as two all-powerful forces for the
nation under the Commerce Clause powers of Congress to “regulate”
interstate commerce and the “police powers” of the States.
The critical vote opening the dam wide was, you know it, 5-4.
West Coast Hotel v. Parrish
constitutional a Washington State minimum-wage law applying to women and
As one might expect, the Great Depression then deepened while under the
official federal stranglehold, all of the way until President Harry
Truman’s post-war resuscitation of American capitalism in 1945 finally.
Sadly, that new life for the free market economy proved to be on
a short lease, now controlled by Congress.
So, the path was opened back in the 1930’s, by the legitimization of the
New Deal, for the potential of big government run amok, a quite
self-fulfilling prophecy over time once made possible.
An overly empowered legislature is
always the coming death knell for a republic
and, ultimately, for democracy itself.
And there is but a single person in this key political drama from long
ago, aside from FDR, a person never elected to any office, who is often
said to be personally, singularly responsible for the near century-long
decline of American liberty and now prosperity itself on the continent
our forefathers founded, America’s seeming Benedict Arnold of modern
A Guardian’s Life
Owen Roberts began his career as a Philadelphia lawyer, but he much
preferred his part-time work as a law professor.
At the end of his career retired Justice Roberts returned to the
Pennsylvania School of Law, as the Dean now, while being paid a salary
of $1 a year.
Roberts was for a time the President of the American Philosophical
Society. There can be no
doubt of Roberts’ powers of mind and persuasion.
Roberts also served on the governing board of the Boy Scouts of America
and of the Smithsonian Institute.
He became an espionage prosecutor.
Later he investigated the preparedness of the US Navy in Pearl
Harbor at the time of the Japanese sneak attack.
Roberts rose to fame with his investigation of the Teapot Dome affair
where official corruption in Washington, D.C. was exposed.
A congressman was convicted of taking a $100,000 bribe for
awarding two Navy oil reserve leases to an oil company without a
competitive bid. The man
paying the bribe conversely was later acquitted.
The oil tycoon also foreclosed on the congressman’s home for
“unpaid loans” that turned out to be the bribery money.
The tycoon did end up though in jail himself, on a charge of jury
Justice Roberts was appointed to the US Supreme Court by President
Hoover in 1930.
If there is a part of the Constitution that Justice Roberts can be best
remembered as a guardian for, it is the central command of the
Fourteenth Amendment, the juncture in American history when everyone
became always equal before the law.
Justice Roberts issued a dissenting opinion in the Japanese-American
internment case that is one for the ages. He found that no citizen can
be ordered to leave their home based on their ancestry alone and then be
convicted of failing to comply with such an order even during a time of
Korematsu v. United States,
323 U.S. 214 (1944)
Cantwell v. Connecticut,
310 U.S. 296 (1940),
Justice Roberts wrote the opinion that first applied First Amendment
protections at the level of state and local government.
Justice Roberts was an open advocate of equality before the law for
black Americans twenty years before the civil rights movement began in
earnest in the United States.
In an address to Brown University in 1939 Roberts said "unreasoning
hatred constituted the only menace to the foundations of this Country's
government. Race, color and political hatreds," he said, "have no place
in a government of reason, which ours should be.”
Yet, it is a failure of guardianship of another aspect of the
Constitution though that Justice Roberts stands indicted by history for.
In two decisions Justice Roberts did not write an opinion for, he
left one of the greatest marks in Constitutional history.
New Ideas Over the Old Principle
The traditional lassie faire US economy, of course, was the primary
obstacle to the many, many economic reforms that the Progressive
Movement had been pushing for forty years already by the time of the
1929 Wall Street Crash. The
established understanding of the Due Process Clause within the
Fourteenth Amendment gave unhindered capitalism in the United States the
highest protection in law that exists, effectively checkmating the
economic longings of forced-collectivism nearly in full.
Though FDR in his first presidential campaign spoke of a “new deal” that
would ”bring happy days again”, no promises were made to initiate
federal jobs programs or to create national worker pensions or to
establish agricultural and industrial quotas.
Such a sudden, startling empowerment of the federal government
was nowhere on the radar screen in 1932 when FDR was elected 57% to 40%
Once the FDR “New Deal” went well beyond funding crisis relief and the
stabilization of the banks, the opposing sides in the most consequential
constitutional showdown ever lined up.
But the fight was a lost one already in the FDR Democratic
Congress with a 2/3rds majority.
FDR’s law writers for Congress had a wholly different way of looking at
the Constitution, one that had never before been so stretched in its
possible application. It
was the Commerce Clause in the main text of the Constitution they said
empowered the Congress to “regulate interstate commerce” in literally
any way it wished to. And
these law writers defined “intrastate commerce”, the part of the economy
that federal interference was disallowed in by the Clause, as being
little more than an oddity, no barrier to sweeping national legislation
steering the economy in the grandest of experiments.
Yet, no real constitutional argument was made by FDR though reconciling
the inapposite policy of the 14th Amendment and the citizen’s
“right to contract”. In a
precursor of today’s world, one set of laws passed today would
successfully contradict older laws, even the Constitution itself.
So, the likely “New Deal” breaker laid with the United State Supreme
Court and its obligation to enforce the 14th Amendment over
any law passed by Congress that infringed the “right to contract”.
The Court in Lochner
was already on the record deciding these matters in an equally sweeping
Pot-Boiling Courthouse Politics
The main supporter in the corner of the “right to contract” was the
United States Judiciary trained in limited constitutional government,
including the Lochner
decision. Though the titans
of industry and banking certainly opposed the New Deal, their influence
in society had been diluted by the Depression and by FDR.
Tellingly on this, the New Deal raised the upper income tax
bracket till it rose up to 94% during WWII.
Though FDR would eventually nominate eight members of the US Supreme
Court, his first nomination was not made until 1937.
The constitutional drama over the scope of the Commerce Clause
powers was decided by a Court of justices appointed by previous
The US Supreme Court by 1935 had developed a clearly defined divide over
the vitality of the “right to contract” and the importance of the
Commerce Clause. The Court
had three liberal Justices who backed an omnipotent Congress guided by
the democratic will of the people.
The Court also had four Justices, known as the Four Horsemen,
whose rock-ribbed constitutional conservatism was so identical they
often traveled together to and from the Court in a four-horse carriage.
In the middle of the sharp divide stood Justice Roberts and
swashbuckling Chief Justice Charles Evan Hughes.
Roberts regarded Hughes as a towering intellect,
even though Roberts tended to side with the Four-Horsemen more often
than not, unlike Hughes.
Roberts’ alliance with the Four Horsemen reached a zenith in 1935 with
the reversal of New Deal legislation.
Justice Roberts wrote the majority opinion in the 6-3
decision joined by Chief Justice Hughes.
The AAA quota law was not a tax whatever the drafters called it.
The coercion of farmers in their business choices violated the
“right to contract” within the 14th Amendment and, therefore,
violated the 10th Amendment as well.
Yet, the three liberal dissenters in
Butler were oddly joined by
Chief Justice Hughes the next year in granting review of another case
examining a minimum-wage law for female workers only.
Morehead v. New York ex rel. Tipaldo,
298 U.S. 587 (1936)
Chief Justice Hughes had joined the majority in Butler.
It was odd because the general issue in the new case was very little
different than the question posed in
Butler just the year before,
a law applying a direct restriction on commerce.
Also, a minimum-wage law had been struck down by the High Court
under the “right to contract” in 1923 citing
Tipaldo ended as a 5-4
decision with a majority opinion written by Four Horseman Justice Pierce
Butler. Chief Justice Hughes wrote a separate dissenting opinion from
the three liberal Justices who dissented together.
The Chief Justice did mention at the close of his separate
dissent that the three liberal Justices favored his view of the law as
well, though they would go much further than he does.
In his Tipaldo dissent, in
apparent contradiction of two recent precedents, Chief Justice Hughes
found critical differences between this New York minimum-wage law and
the one in the District of Columbia that had been struck down in 1923.
He insisted that removing the wage elevation to a private board
with official power after a time of public shaming was not effectively
the same thing as simply prescribing a minimum-wage.
Hughes went so far as to hold that the States have more authority in
protecting the wages of women than the wages of men.
Women could not take care of themselves as well as men do, so the
dead hand of the State was especially needed by women.
Chief Justice Hughes did not join the other dissenters in
Tipaldo in their stance in
favor of vast, new governmental powers in the States, and implicitly
including the same increased powers in Congress under the Commerce
On this thin reed, Chief Justice Hughes nonetheless crossed the
constitutional Rubicon with his dissenting vote pretending that a clear
constitutional mandate can be so easily finessed away.
One of the two key barriers to the New Deal in the US Supreme
Court had fallen it seemed.
Justice Roberts did not write an opinion in the
He sided with the majority striking down the New York law as
being in violation of the “right to contract” citing the
Butler decision he did write.
It was the next year, believe it or not, when the now expanded liberal
coalition of four Justices brought the issue of the minimum-wage before
the Court for a third time in 14-years trying to reverse the two prior
recent decisions on the issue.
If one thing can be said of Progressives’ methods, persistence to
the point of distraction is one of them.
To these four Justices the Constitution was not only alive, it
became as pliable as a human hand is.
But the new law of the State of Washington, for women and children only,
directly prescribed a minimum-wage in the just the way the Chief Justice
had just said in Tipaldo was
So, why did Hughes vote to review the very minimum-wage formulation he
had just written about as still being unconstitutional?
Judges are supposed to be the most respectful of all when it
comes to past precedents, one would think especially so for one’s own
opinion from a year earlier.
To switch his view of the Constitution again so quickly should
have been problematic for Hughes, not what a judge is ever supposed to
What happened between the Tipaldo
decision and the West Coast
Hotel case was the national election of 1936.
Now with the New Deal in full view in its forced-collectivist
glory, American voters re-elected FDR by a margin of 61% to 37% routing
Republican Alf Landon by more than he had Hoover four years earlier.
Well, if the Constitution in June, 1936 said a minimum-wage law like
Washington State’s is unconstitutional, by March, 1937, it turned out,
the Constitution did allow for the Washington law as written.
Coast Hotel v. Parris,
300 U.S. 379 (1937)
The opinion of the liberal coalition was written by its newest member,
Chief Justice Hughes. It
was so thoroughgoing in its view of the primacy of the State’s Police
Powers and of the lesser “right to contract”, only one opinion was
needed this time. Lacking all
shame, Hughes did not begin to explain his constitutional hair-splitting
in Tipaldo just ten months
earlier and instead joined in the Progressive fun completely in his own
So, with the Justices of the Court identical, nothing should have
Except one thing did change.
In West Coast Hotel
Justice Roberts switched his vote from the Four Horsemen and joined the
now majority opinion finding the New Deal type law constitutional this
time. He did not offer any
words about his complete change of stance, just like his colleague Chief
Later in 1937, FDR proposed the “court packing scheme” to his Congress
asking that the membership of the US Supreme Court be increased to
thirteen from nine. The
plan failed to pass Congress.
It took only a short time for the Commerce Clause to work the same magic
for Congress that the police powers accomplished for the State of
Washington in West Coast Hotel.
Wickard v. Filburn
West Coast Hotel,
the war on poverty, the war on drugs, the $1tr stimulus act, and the
departments of HHS, Labor, Energy and Education never had a problem with
the constitutional right to contract.
Before too long after West Coast
Hotel the “right to contract” was no longer even cited any more as
having vitality of any form.
It has been become clear since
West Coast Hotel that even
the adoption of outright communism by Congress, or even by the States,
would still be constitutional, though it may have to be called a 100%
Justice Roberts only comment that was reported publicly concerning his
switched vote in 1937 was “it may have had something to do with the
breakfast I had that morning.”
At the end of his career Owen Roberts decided to burn all of his
judicial papers thereby forever blurring his vote in
West Coast Hotel. It was not
uncommon to burn one’s papers at the time
That did not change the widely held view that, in this instance anyway,
there was something to be hidden.
Rumor has it that Chief Justice Hughes hugged Justice Roberts for the
first time when told of Roberts’ decision to switch his vote in
West Coast Hotel.
The Verdict of History
One thing that can be said about the
West Coast Hotel affair is
that it was a set of circumstances that Justice Roberts did not bring
about on his own in any way.
His so brash colleague was clearly the moving force.
None of the seedy politics infecting the High Court in the 1930’s
was attributable to Justice Roberts, until that vote in
West Coast Hotel betraying
the Four Horsemen and the constitutional right to contract.
Another undeniable point is that it was indeed Justice Roberts, by quirk
of history, who stood in the monumental position in 1937 forced to
choose between the glory of the past and the tidal wave of a different
world that had come to America with the Great Depression.
Justice Roberts chose what he had come to believe represented the modern
future. His method
certainly should have been frank though, rather than wholly hidden, at
least over the passage of time.
It is further fair to say that had Justice Roberts stood his ground
firmly with the Four Horsemen there is an excellent chance the New Deal
and FDR would still succeed, but in another way later.
Maybe FDR’s court-packing plan would have succeeded but for the result
in West Coast Hotel. But
maybe not. Maybe the US
economy would have recovered under the doctrine of the “right to
contract” before a new Progressive attack could be effectively launched
on this liberty.
Free market advocates can take solace from the likelihood that a good
person like Owen Roberts, and even his four liberal companions in
West Coast Hotel, would be
thoroughly appalled by the gargantuan, often contradictory US federal
government of today, assuming they had the chance to see where all of
this New Dealism ended up taking the nation to.
It certainly seems the Four Horsemen of the 1930’s were right after all.
The grand experiment of the time has proven a failure compared to
what the nation already had.
It is ironic that a man like Owen Roberts, so thoroughly out of the 19th
Century US tradition, would somehow become the deciding vote on changing
everything that he had come to understand when it came to the lawful
powers of government.
But, in the end, it is not surprising really.
Because as fellow Justice Felix
Frankfurter said about Roberts “[He is] a forthright, democratic,
perhaps even somewhat innocently trusting, generous, humane creature.”
Roberts decided in 1937 the country belonged to the voters mostly, even
beyond certain limits the Constitution has supported, when the command
of the people is quite clear.
Roberts would not become a member of the tiny group who stalled
history and the overwhelming will of the people.
His connection to the nation would not allow for it.
His act was one of love for the nation, unlike the traitor
In the process though, Justice Roberts sacrificed the American Republic
ultimately, all in favor of democracy.
In the wake of the all-powerful Congress over decades,
even democracy itself
has now been consumed by the Goliath that had been wrought.
So, raise a toast for the constitutional right to contract.
Place aside its ignoble demise for now.
The doctrine served the nation in liberty so well for so long.