Constitutional History, 1921–1933

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CONSTITUTIONAL HISTORY, 1921–1933

If reverence for the federal Constitution had diminished in the Progressive era, it was revitalized in the 1920s, as the Constitution again became a symbol of national unity and patriotism. Organizations such as the American Bar Association and the National Security League launched national campaigns of patriotism, circulating leaflets and pamphlets by the hundreds of thousands, encouraging Constitution worship, promoting an annual Constitution Day, and working for state laws to require Constitution instruction in the public schools. Forty-three states passed laws mandating the study of the the Constitution; often such laws required loyalty oaths for teachers. Such laws were intended to affirm one hundred percent Americanism from every public school instructor.

The Constitution which was so apotheosized, however, was one geared primarily to the service of property interests. This meant, on the one hand, the protection of business from government regulation and from assault by radical and liberal critics; and, on the other, active intervention of courts and the executive branch to see that constitutional ways were found to insure that the free use of one's property be protected by positive government policies, both formal and informal. Thus, while constitutional changes did occur during the decade and new emphases were developed, these modulations were contained within the dominant ideological construct of free enterprise and individual property rights—rights, it was argued, that had been secured for all time by the sacred document and its amendments.

The most influential constitutionalist of the 1920s wasChief Justice william howard taft. Taft set the tone for national political leadership. He was fully committed to the protection of a social order explained and justified by the tenets of john locke, Adam Smith, the Manchester Economists, william blackstone, thomas cooley, and Herbert Spencer. Espousing a social ethic that stressed selfreliance, individual initiative and responsibility, and the survival of the fittest, Taft emphasized the virtually uninhibited privilege of private property and rationalized the growth of corporate collectivism in terms of individual liberty and private enterprise. For Taft it was time to move away from Progressive expansivism and restore the country to its traditional constitutional bases through a legal system that rested primarily upon judicial defense of a static Constitution and an immutable natural law.

In specific constitutional terms, these goals required restrictive, although selectively restrictive, interpretations of the federal government's taxing and commerce power; an emphasis upon the tenth amendment as an instrument for precluding federal intrusion into the reserved powers of the states; and a limitation on the states themselves, through an interpretation of the fourteenth amendment that emphasized substantive due process and freedom of contract. These constitutional constructs would protect property against restrictive state laws but leave the states free through their police power to legislate against private activities that might threaten that property.

Operating from these assumptions, the Supreme Court majority in this period was activist in its hostility to legislative enactments that threatened or constrained the rights or privileges of the "haves" of society. Thus, between 1921 and 1933, that body ruled unconstitutional fourteen acts of Congress, 148 state laws placing governmental restraints on one or another form of business activity, and twelve city ordinances. Conversely, its majority had no trouble sustaining federal measures that aided business and sanctioning numerous state laws and city ordinances that abridged the civil liberties of labor, radicals, too outspoken pacifists, and other critics of the capitalist system. In 1925, Taft took the further step of lobbying through Congress a new judiciary act, granting the Supreme Court almost unlimited discretion to decide for itself what cases it would hear. (See certiorari, writ of.) Henceforth the Court could choose to take no more cases than it could handle expediently and could restrict adjudication to matters of more general interest. The result was an upgrading of the importance of the cases that the body did agree to hear and a commensurate enhancement of the Court's own prestige and power. Such a looming judicial presence dampened the enthusiasm of activist legislators, state and national, for pushing social reform legislation and made progressive members of regulatory commissions cautious about exercising their frequently limited authority. Hence bodies such as the Interstate Commerce Commission and the Federal Trade Commission remained largely passive during the period, except when their business-oriented majorities sought to act solicitiously toward those being regulated.

The three presidential administrations of the period, while sharing a common constitutional philosophy, differed in concrete legislative and policy accomplishments. warren g. harding had begun his presidency with an ambitious legislative docket. His proposals included a National budget and accounting act (previously vetoed by woodrow wilson), a new farm credit law, the creation of a system of national highways, the enactment of a Maternity Bill, the immediate development and effective regulation of aviation and radio, the passing of an antilynching law, and the creation of a Department of Public Welfare. A surprised Congress was confused over priorities and wound up passing little legislation. The packers and stockyards act of 1921 made it unlawful for packers to manipulate prices, create monopolies, and award favors to any person or locality. The regulation of stockyards provided for nondiscriminatory services, reasonable rates, open schedules, and fair charges. The measure, which was constitutionally based on a broad interpretation of the commerce clause, gave the secretary of agriculture authority to entertain complaints, hold hearings, and issue cease and desist orders. The bill was a significant part of the agrarian legislation of the early 1920s, and its validation by the Supreme Court in stafford v. wallace (1922) provided a constitutional basis for later New Deal legislation. The 1921 Congress also passed the Fess-Kenyon Act, appropriating money for disabled veteran rehabilitation, and the sheppard-towner maternity act, subsidizing state infant and maternity welfare activities. Aside from the bill setting up a Budget Bureau in the Treasury Department with a director appointed by the President, little else was forthcoming. By the end of 1921 the New York Times observed: "It is evident, and it is clearly admitted in Washington, that the public is not counting any longer upon sound and constructive legislation from Congress." Indeed, Congress supported only occasional further legislation through the decade. One effect of such congressional inaction, along with the increasingly desultory Harding leadership and the even more quiescent calvin coolidge presidency, was to direct the attention of reformers to the amending process.

The immediate post-world war i years had seen the ratification of the eighteenth amendment (prohibition) and the nineteenth amendment (woman suffrage). In the 1920s certain fallout from both occurred. Prohibition was unpopular from the start. In fact, noncompliance became such a problem that by the late 1920s President herbert hoover appointed a special commission, headed by formerAttorney General george wickersham to "investigate problems of the enforcement of prohibition under the 18th Amendment." As the report of the commission stated, "the public was irritated at a constitutional "don't' in a matter where the people saw no moral question." More specifically, the commission pointed to enforcement problems, emphasizing the lack of an American tradition of concerned action between independent government instrumentalities. This, it felt, was now being painfully demonstrated by the Eighteenth Amendment's policy of state enforcement of federal laws, with responsibility too often falling between the two stools and enforcement occurring not at all. Not surprisingly, during the twelve years that the Eighteenth Amendment was in force, more than 130 amendments affecting the Eighteenth in some manner were introduced. Most of these amendments provided for outright repeal; others weakened the amendment in varying degrees. When franklin d. roosevelt opposed prohibition in 1932, he attracted wide support. The twenty-first amendment repealing the Eighteenth was ratified in December 1933, although prohibition's legal residue took some years to settle. (This measure came only nine months after passage of the relatively uncontroversial twentieth amendment, eliminating the "lame duck" session of Congress and changing the time for the inauguration of presidents from March to January).

The momentum that carried woman suffrage to a successful amendment continued to some degree into the early 1920s. Some feminist leaders continued to push for improved working conditions for women, for minimum wage laws, and for laws bettering the legal status of women in marriage and divorce. In 1922, Congress passed the Cable Act, providing that a married woman would thereafter retain and determine her own citizenship and make her own application for naturalization after lawful admission for permanent residence, which the Act reduced to three years. Supporters of the political emancipation of women, especially the National Women's Party, got the equal rights amendment (ERA) introduced in Congress in 1923 and worked for its adoption by lobbying and exerting political pressure in the early years of the decade. At that time the ERA was opposed by most of the large women's organizations, by trade unions, and by the Women's Bureau primarily because it was seen as a threat to labor-protective legislation. Opponents contended that the ERA would deprive most working women and the poor of hard-won economic gains and would mainly benefit middle and upper class women. Thus the measure floundered at the time, not to be revived until toward the end of world war ii. The same period saw all native-born American Indians granted full citizenship through the Curtis Act of 1924. The measure, however, did not automatically entitle them to vote, and some states still disfranchised Indians as "persons under guardianship." In 1925 Congress passed the Federal Corrupt Practices Act, extending federal regulation of political corruption to the choice of presidential electors.

a child labor amendment fared only slightly better. With the Supreme Court striking down federal child labor laws as unconstitutional under both the commerce and the taxing powers, advocates of children's rights turned to the amending process and Congress adopted a proposed Child Labor Amendment in June 1924. Opposed by manufacturers' associations and certain religious groups, the measure, by 1930, had secured ratification in only five states. More than three-fourths had rejected it, with the greatest hostility coming from the south and from agricultural regions, where child labor was seen as essential to family economic stability. The measure was eventually superseded by the fair labor standards act of 1938. By that time the evils of child exploitation were no longer felt to be beyond the constitutional reach of federal legislative power.

Other amendments were proposed: providing minimum wages for women; establishing uniform national marriage and divorce laws; giving the president an item veto in appropriation bills; abolishing congressional immunity for speeches and debates in either house; providing representation for the district of columbia; changing the amending process itself; providing for the election of judges; providing for the independence of the Philippine Islands; prohibiting sectarian legislation; defining the right of states to regulate employment of aliens; requiring teachers to take an oath of allegiance; preventing governmental competition with private enterprise; conferring upon the House of Representatives coordinate power for the ratification of treaties; limiting the wealth of individual citizens; providing for legislation by initiative; extending the civil service merit system; regulating industry; and prohibiting loans to any except allies. Varying support for all reflected, to a greater or lesser degree, public discontent with aspects of the political-constitutional system of the time. A segment of this discontent crystallized in the La Follette Progressive Party's 1924 platform, which even proposed the recall of judges, much to the alarm and ire of Chief Justice Taft. Such straws in the wind did not, however, portend a successful assault upon property-oriented constitutional interpretation. That assault would await the depths of the Depression.

The middle to later years of the decade saw continued congressional hostility to government interference in economic and personal activities, but no reluctance to use power when the result supported President Coolidge's aphorism that "the business of America is business." Antilynching legislation failed during the decade; northern conservatives joined white southerners in deploring it as an assault upon states ' rights and individual freedom. In 1927, Congress enacted the McNary-Haugen Farm Bill, an elaborate measure calling for federal support for agricultural prices. The measure countered the prevailing temper of constitutional conservatism, for it extended national regulatory authority over agricultural production and thus not only invaded a sphere of authority traditionally reserved to the states but also interfered extensively with private property rights. President Coolidge vetoed the measure, denouncing it as "economically and constitutionally unsound." When Congress persisted, he vetoed a second McNary-Haugen Bill the following year on the same grounds.

Somewhat similar antistatist sentiments emerged when, in 1925, newly appointed Attorney General harlan fiske stone took the Bureau of Investigation out of politics and terminated its pursuit of radicals. "There is always the possibility," Stone stated in taking the action, "that a secret police may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood. The Bureau … is not concerned with political or other opinions of individuals. It is concerned with their conduct, and then only with such conduct as is forbidden by the laws of the United States." Store's action was popular with all but some patriotic and right-wing groups for whom radical, or even unorthodox, ideas were a threat which the government did have a responsibility actively to check.

On the other hand, Congress met little opposition when it enacted a broad, restrictive immigration act in 1924 imposing stringent quotas on entry to the United States, heavily biased against southern and eastern European and Asiatic peoples. Such action was consonant with the strong tendency of the courts in the period to define the rights of aliens narrowly, with an eye to keeping such people in their proper place, particularly as easily exploitable members of the work force.

To the extent that an alternative constitutional tradition existed or was developed in the 1920s, its impact was not fully felt until Depression days. There were undertones of protest, however, coming from disparate sources. Justice louis d. brandeis, in his dissent in Gilbert v. Minnesota (1920), a decision sustaining a sedition conviction for criticism of the government's wartime policies, had stated: "I cannot believe that liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property." Others quickly picked up on the contradiction in this double standard, particularly when the same "liberty" was not then deemed applicable to freedom of the press, and freedom of assembly. The american civil liberties union (ACLU), a product of the war, itself an opponent of strong government intervention in people's personal lives, worked through the decade to strengthen the power of labor and working people. The ACLU operated on the assumption that bill of rights freedoms flowed from economic power and that artificial impediments to the achievement of that power had to be removed. The National Association for the Advancement of Colored People was active in the decade in behalf of the constitutional rights of minorities, although its successes in producing constitutional change were decidedly limited. Similarly, organized labor saw itself as a beleaguered "minority" throughout the decade, attributing its position partly to conservation constitutionalism. Samuel Gompers stated shortly before his death: "The Courts have abolished the Constitution as far as the rights and interest of the working people are concerned."

The impact of such criticism ultimately was not so great as that from popularly elected constitutional liberals and an influential segment of the legal community. Senators William E. Borah and george norris openly opposed the appointment of charles evans hughes to the Chief Justiceship, arguing that there was a need for judges who would stop treating the Fourteenth Amendment only as a protection of property and recognize it as a guarantee of individual liberty. Although this opposition failed, partly because of Hughes's constitutional record and the public image of him as more progressive than reactionary, the Senate did block the subsequent nomination of John J. Parker, a prominent North Carolina Republican, to the Supreme Court in 1930; opponents particularly emphasized his racist and antilabor record. Both actions constituted unignorable Depression calls for constitutional liberalization, echoed increasingly by liberal lawyers, particularly in the law schools, many of which has been influenced by the legal realism movement of the times. Such criticism combined with growing disillusionment with the business establishment and cynicism about a Supreme Court that could be aggressively activist in the protection of property rights and a paragon of self-restraint when it came to protecting human rights. Pressure for altered uses of government power mounted fairly early in Depression days.

Herbert Hoover was undoubtedly the most competent of the 1920s Presidents. A successful mining engineer and government bureaucrat, he had served effectively as wartime food administrator under Woodrow Wilson and as secretary of commerce in the Harding and Coolidge administrations. Hoover was eager to overhaul the executive branch of the government and reorganize it in ways that would achieve greater efficiency and greater economies in government. Saddled quickly with the worst depression in American history, Hoover was pressed to launch a large-scale national attack on the depression through federal governmental action. Such action had to fit his constitutional views, which were decidedly Taftian. For Hoover, "unless the enterprise system operated free from popular controls, constitutional freedoms would die." "Under the Constitution it was impossible to attempt the solution of certain modern social problems by legislation." "Constitutional change must be brought about only by the straightforward methods provided by the Constitution itself." Such a commitment to laissez faire economics and constitutional conservatism precluded sweeping federal actions and permitted only such remedial legislation as the agricultural marketing act of 1929, designed to assist in the more effective marketing of agricultural commodities. Congress created the Reconstruction Finance Corporation in 1932 to rescue commercial, industrial, and financial institutions through direct government loans. Both measures so limited the scope of permissible federal activity that neither proved adequate to the challenge of providing successful depression relief.

A more specific example of Hoover's constitutionalism involved congressional enactment of the Muscle Shoals Bill of 1931. In 1918 President Wilson had authorized, as a war-time measure, the construction of government plants at Muscle Shoals on the Tennessee River for the manufacture of nitrates and of dams to generate electric power. After the war the disposition of these plants and dams produced bitter national controversy. Conservatives insisted that they be turned over to private enterprise. Congress twice enacted measures providing for government ownership and operation for the production and distribution of power and the manufacture of fertilizers. In vetoing the second of these bills (Coolidge had vetoed the first in 1928), Hoover reiterated his belief that government ownership and operation was an approach to socialism designed to break down the initiative and enterprise of the American people. He argued that such a measure was an unconstitutional federal entrance into the field of powers reserved to the states and as such deprived the people of local communities of their liberty.

A growing number of congressmen and senators, however, were convinced that such constitutional negativism was no longer useful. In 1932, Congress passed and sent to a reluctant President the norris-laguardia act, probably the most important measure of the period. Ever since the 1890s, labor had protested against business's turn to the courts for injunctions to prohibit its legitimate activities. Congress's only response was a Railway Labor Act, in 1926, giving railway labor the right to bargain collectively through its own representatives. By the late 1920s, a national campaign against the labor injunction was launched with liberal congressional leaders joined by groups as disparate as the ACLU, the Federal Council of Churches, and the American Federation of Labor, all protesting the unfairness and unconstitutionality of enjoining labor's legitimate use of speech, press, and assembly. The Great Depression intensified this discontent. The Norris-LaGuardia Act made yellow dog contracts unenforceable in federal courts; forbade the issuance of injunctions against a number of hitherto outlawed union practices; and guaranteed jury trials in criminal prosecutions based on violations of injunctions. The act thus removed the machinery for a variety of informal antilabor devices.

Hoover's response was to seek assurance from his attorney general, William Mitchell, that the more rigorous terms of the measure could be successfully bypassed. Having gained such assurance, he signed the bill, leaving Senator Norris to remark, bitterly, that the President dared not veto but did everything he could to weaken its effect. Yet the measure was generally popular, as was its symbolism, which presaged a more active role for the federal government in the achievement of social justice.

Such response was not lost on Franklin D. Roosevelt. During the presidential campaign of 1932, he called for a new, more liberal view of the Constitution and a broad construction of congressional legislative power as a way of solving the nation's difficult problems. His overwhelming election victory seemed to assure that the minority liberal constitutional arguments of the 1920s would become majority ones when the new deal program was enacted.

Paul L. Murphy
(1986)