Day, William R. (1849–1923)

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DAY, WILLIAM R. (1849–1923)

William Rufus Day was named to the Supreme Court by theodore roosevelt in 1903, after william howard taft had declined the nomination to remain at his post in the Philippines. Coincidentally, Day had replaced Taft on the Sixth Circuit Court of Appeals in 1899 when President william mckinley dispatched Taft to the Pacific outpost.

Day's tenure spanned the Progressive era. He generally favored the movement's interventionist thrust, particularly state regulatory actions. Day's decisions relating to federal power, however, were more ambivalent, as reflected by his famous opinion in hammer v. dagenhart (1918), which invalidated a congressional attempt to regulate child labor premised on the commerce clause. Unlike many states ' rights advocates, he consistently supported state police regulations.

Justice Day faithfully followed the precedent of united states v. e. c. knight company (1895), holding that Congress's interstate commerce power did not extend to production. For example, in Delaware, Lackawanna and Western Railroad Company v. Yurkonis (1915) he declined to extend coverage of the federal employers liability act to coal miners even though the coal they produced eventually was used in interstate commerce. Three years later, in the child labor case, Day elaborated his conception of federalism with an expansive discussion of the tenth amendment and its limitations on national power. He found that a congressional law prohibiting the interstate transportation of goods made by child labor unconstitutionally regulated production.

Generally, however, Day supported federal regulation of business. In Atchison, Topeka and Santa Fe Railway Company v. Robinson (1914), he wrote an opinion sustaining amendments to the hepburn act that greatly expanded federal jurisdiction in railroad regulation, and in Harriman v. Interstate Commerce Commission (1908) he vigorously dissented from an opinion by Justice oliver wendell holmes that weakened the commission's sub-poena powers. Day also consistently sided with the government in antitrust suits. Soon after his appointment, he provided the decisive vote for the government in northern securities company v. united states (1904). Although he acquiesced in the Court's rule of reason doctrine in standard oil company v. united states and united states v. american tobacco company (1911), Day expressed reservations toward the doctrine in a number of opinions that strongly supported the sherman act. Finally, in United States v. United States Steel Corporation (1920), he led the dissenters who hotly disputed the Court's approval of the corporation's control of most of the steel industry. Consistently acting as a principled foe of monopoly, Day advocated governmental intervention to destroy concentrated power and insure competition.

Despite Day's views in the child labor case, he supported the concept of a national police power based on the commerce clause. In Pittsburgh Melting Company v. Totten (1918) he sustained the Meat Inspection Act of 1906, and in hoke v. united states (1913) he offered a classic defense of the police power to uphold the mann act. Congress's control over commerce, he said, was "complete in itself," and Congress might adopt "not only means necessary but convenient to its exercise, and the means may have the quality of police considerations."

Similarly, Day upheld widespread uses of state police powers. He joined Justice john marshall harlan's dissent in lochner v. new york (1905), and he supported the Court's approval of compulsory vaccination in jacobson v. massachusetts (1905). Day consistently rejected the rigid freedom of contract dogma of Lochner. In McLean v. Arkansas (1909) he wrote to sustain state mining safety regulations and deferred to legislative prerogative: "The [state] legislature being familiar with local conditions is, primarily, the judge of the necessity of such enactments." Although the judiciary might have different views of social policy, Day insisted judges had no warrant to interfere. When the Court invalidated a state law prohibiting yellow dog contracts in coppage v. kansas (1915), Day protested against a literalist view of liberty of contract and, ignoring the Lochner precedent, he argued that "liberty of contract may be circumscribed in the interest of the State and the welfare of its people."

Day served on the Court until 1922. His opinions, though not memorable, were relatively free from rigid dogma. He contributed significantly to the Court's general approval of the expanded scope of governmental authority, federal and state. In the latter part of his career, that support extended to the prosecution of dissenters and radicals as he consistently sided with the government in the "Red Scare" cases. His 1918 child labor opinion unfortunately has served to obscure his more enduring contributions to constitutional law, such as his support for national regulatory power and an expanded state police power authority.

Stanley I. Kutler
(1986)