Photos of the Primaries:
1839 — C.S. Peirce born in Cambridge, MA
1841 — O.W. Holmes born in Boston, MA
1842 — Wm. James born in NYC
1856 — Wynehamer v New York
1859 — John Dewey born in Burlington, VT
1873 — Slaughterhouse Cases
1877-8 — Peirce publishes articles in Popular Science Monthly
1879 — Peirce begins teaching at JHU
1880 — James begins teaching philosophy
1884 — Dewey accepts appointment at Univ. of Michigan
— Peirce dismissed from JHU
1885 — In Re Jacobs: Earl articulates "liberty of contract"
1887 — Peckham unites liberty of contract with Cooley's state neutrality views
1895 — President Cleveland elevates Peckham to the Supreme Court
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1897 — Allgeyer v Louisiana
1902 — President Roosevelt elevates Holmes to Supreme Court
1906 — James delivers Pragmatism lectures
1907 — James retires
1910 — James dies
1912 — Muller v Oregon
1914 — C.S. Peirce dies
1916 — President Wilson elevates Louis Brandeis to the Supreme Court
1916 — Roscoe Pound becomes dean of Harvard Law School
1922 — Karl Llewellyn joins Yale Law faculty
1925 — Karl Llewellyn moves to Columbia Law
1928 — Wm. O. Douglas joins Columbia
1929 — Wm. O. Douglas moves to Yale
1930 — Karl Llewellyn publishes The Bramble Bush
— Jerome Frank publishes Law and the Modern Mind
1933 — Felx Cohen, Jerome Frank, and Wm. O. Douglas join FDR's admin.
1936 — Roscoe Pound retires as Harvard Law Dean
1939 — FDR elevates Wm. O. Douglas to the Supreme Court
1941 — FDR appoints Jerome Frank to Second Circuit Court of Appeals
1933 — FDR becomes president
1935 — O.W. Holmes dies
1937 — West Coast Hotel Co. v Parrish
1939 — Brandeis retires from Court — succeeded by Douglas
1952 — John Dewey dies
1897 — Holmes delivers "Path of the Law"
Wynehamer (NY Court of Appeals) repudiates Chase's unbridled Natural Law view, but also rejects merely procedural due process. It thus works Natural Law into constitutional jurisprudence by way of the due process clause of the 5th Amendment (and its echo in the NY State Constitution). Natural Law must be used to interpret the Constitution's guarantee of life, liberty, and property. In the immediate case, this means that the NY Legislature cannot prevent Wynehamer from selling liquor, since that unjustly deprived him of his property (liquor).
Justice Chase: "An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." This echoes St. Thomas's thesis that, "An unjust law is not law, but rather violence."
Jackson rode to power on a wave of popular resentment against the power of the elites. This called into question the right of judges to rely on their own views of natural justice in interpreting the Constitution. Jacksonians preferred to stick more to a literal reading of the Constitution. The Whig party, which represented the older elites, leaned toward a more expansive reading of the Constitution.
The 14th Amendment applied the due process clause to the states. The 5th Amendment technically only applied to the federal government. This allowed the federal courts to ask whether a state law violated due process rights.
A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union: Cooley makes two advances:
(a) He limits the use of Natural Law in interpreting due process to "settled maxims of the law," i.e., to our American traditions of understanding liberty;
(b) He argues that it is naturally unjust for the state to favor one group or class over another.
Justice Field, in dissent, argued that the "right to labor" (to work on terms one sees fit) is a "privilege or immunity" of a citizen of the U.S., hence falling under the privileges and immunities clause of the 14th Amendment.
Justice Bradley, also in dissent, argued the right to labor was a property right protected by the due process clause of the 14th Amendment.
In Re Jacobs (NY Court of Appeals) explicitly argues that the right to work as one pleases is a property and liberty right protected by the due process clause of the 14th Amendment, thus effectively articulating the notion of the liberty of contract: the right to contract to sell one's labor on whatever terms one sees fit.
9-0 decision, written by Peckham, officially declaring liberty of contract to be protected by the due process clause of the 14th Amendment. This begins the "Lochner Era" of US Constitutional jurisprudence. This case is not as celebrated as Lochner, because it concerned insurance law, rather than the progressive legislation at issue in Lochner.
5-4 decision, written by Peckham, declaring that a NY State law restricting the maximum hours of bakery workers violates the workers' right to sell as much of their labor as they see fit, thus violating the 14th Amendment. This brought the liberty of contract doctrine into direct collision with the progressive movement.
Harlan, joined by White and Day, argued that restricting maximum hours was a reasonable exercise of the state's police power.
Holmes, alone, argued that the Constitution does not enact laissez faire economics, and that "general propositions do not decide concrete cases."
Loewe v Lawlor: held that trades unions did not have the right to organize strikes, since that was a "combination in restraint of trade," which was banned by the Sherman Anti-Trust Act. This is not strictly a piece of Lochner reasoning, but it did reinforce the suspicion that the Court was out to block progressive legislation by whatever means they had at hand.
The Court upholds an Oregon law regulating the maximum hours that women may work in factories and laundries on the grounds that women need special protection, both because they are (allegedly) weaker than men and because they bear children.
Muller was argued by Brandeis, who sealed his fame with the victory. He also used the case to introduce what came to be called the "Brandeis brief," which is a lengthy presentation of empirical data to support a legal argument.
1923 — Adkins v Children's Hospital
The Court struck down a 1918 federal law implementing a minimum wage for women in DC. Justice Sutherland made two points in striking down the law:
(i) The law would impose the burden of helping women on employers, thereby violating Cooley's principle of not (dis)favoring any one group in society;
(ii) The law discriminated against women by putting them in a competetive disadvantage by making them more expensive employees.
The Court voted 5-4 put an end to the Lochner Era by upholding a Wash. state minimum wage law for women. Chief Justice Hughes wrote, "The Constitution does not speak of liberty of contract. ... [P]eace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression."
The dissent was written by Sutherland, who had also written the Adkins decision.
1930 — President Hoover appoints Charles Evans Hughes chief justice.
1932 — Holmes retires from the Supreme Court— succeeded by Cardozo
"The Fixation of Belief" and "How to Make Our Ideas Clear," in which Peirce articulated his pragmatic maxim and his theory of scientific belief formation.
With the publication of Principles James established himself as the foremost academic psychologist in the US. Principles draws together many of the results of the attempt to understand human psychology physiologically, but also expresses James's idiosyncratic, sometimes pragmatist, viewpoint.
1894 — Dewey moves to Univ. of Chicago
1904 — Dewey moves to Columbia Univ.
1930 — Dewey retires
1872 — James begins teaching physiology at Harvard
The Bramble Bush contained the infamous comment: "Rules are important so far as they help you to predict what judges do. That is all their importance except as pretty playthings."
1882 — Holmes elevated to Mass. Supreme Judicial Court
Hall, Kermit L., ed. The Oxford Guide to United States Supreme Court Decisions. New York: Oxford Univ. Press, 1999.
Hall, Kermit L., William M. Wiecek, and Paul Finkelman. American Legal History: Cases and Materials. Second ed. New York: Oxford Univ. Press, 1996.
1965 — Griswold v Connecticut
1972 — Eisenstadt v Baird
1973 — Roe v Wade
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1986 — Bowers v Hardwick
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The case established that the right of a married couple to use contraception, and for others to provide medical information and advice regarding contraception, is protected by the Constitution.
Justice Douglas's majority opinion rejected substantive due process and the analogy to Lochner, instead basing the right in the "penumbras, formed by emanations from those guarantees that help give [the rights protected by the Bill of Rights] life and substance."
Goldberg argued that implied, fundamental, personal rights, such as privacy, are protected by the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Goldberg argued that privacy is "so rooted in the traditions and conscience of our people as to be ranked fundamental."
Harlan and White argued that privacy is protected by the Due Process Clause, as "implicit in the concept of ordered liberty."
Black and Stewart dissented
Established the right of a woman to have an abortion during the first two trimesters of her pregnancy. Blackmun's majority opinion located this right in the right to privacy, as protected by the due process clause of the Fourteenth Amendment, thus opening up a second era of substantive due process.
7-2 decision written by Blackmun, with Rhenquist and White dissenting. Stewart joined the majority, even though he had dissented in Griswold.
In an attempt to distinguish the right to privacy from the "liberty of contract" discussed in Allgeyer and Lochner, theorists of privacy argue that economic rights and personal rights must be treated differently.
5-4 decision denying that the right to privacy extends to homosexual sex. White's majority opinion argued that the right to privacy concerns only matters connected to "family, marriage, and procreation," thus not to homosexual sex.
Reaffirmed Roe 6-3. The majority opinion by O'Connor, Kennedy, and Souter affirmed that the right to an abortion before the viability of the fetus is protected by the due process clause of the Fourteenth Amendment, though it somewhat narrowed the scope of Roe.
2003 — Lawrence v Texas
Overturned Bowers v Hardwick and found that the right to privacy protected by the due process clause of the Fourteenth Amendment extends to homosexual sex. White's restriction in Bowers of privacy to matters connected with family, marriage, and procreation is thus rejected as arbitrary.
Eisenstadt was a 4-3 decision extending the privacy considerations of Griswold to unmarried couples. Brennan's majority opinion argued that treating married and unmarried couples differently violated the Equal Protection Clause of the 14th Amendment, and that the privacy rights affirmed in Griswold "inheres in the individual, not the marital couple."
This was remarkable, since the Griswold opinions went out of their way to locate privacy specifically in the marital couple and denied that granting married couples access to contraception would promote any otherwise illegal behavior, such as adultery, fornication, or homesexuality.
