A Foot In The Door

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Despite the brilliance of the railroad attorneys and the eloquence of their arguments, seven of the Supreme Court justices cast their votes for the Granger laws. Only Field and Strong dissented on November 18, 1876, when all eight cases were decided together. Chief Justice Waite assigned himself the opinions, well aware of their importance; this was the Court’s first major statement on the constitutionality of regulating the new industrial capitalism. He chose the elevator case, Munn v. Illinois , for his main opinion. Unlike the companies involved in the Granger Railroad Cases, Munn and Scott were unincorporated partners and their business was not directly involved in interstate transportation. Their case therefore presented the crucial issue, the permissibility of rate regulation, in pure form, uncomplicated by the contract and commerce questions raised in the other disputes.

The Chief Justice devoted the winter to preparing the opinions, later remarking that “they kept my mind and hands at work all the time.” Waite did his opinion-writing at home, sitting at a long and cluttered library table in his private study, where he worked in the morning’s early hours and often into the night. Admittedly old-fashioned, he spurned secretaries and the newfangled typewriter, making his drafts in longhand. A glimpse of his labors on the Munn opinion is preserved on a lined sheet of paper on which he jotted down earlier illustrations of American business regulation. These references to historical practice, some of which appeared in the final opinion, were pertinent. The parties challenging the Granger laws had strongly contended that regulation was alien to America; to demolish their claim Waite naturally referred to the state he knew best, citing precedents from Ohio history.

As Waite prepared the Munn opinion, he turned for assistance to Justice Bradley, his closest collaborator on the Court. Bradley in fact deserves recognition as the opinion’s co-author: he prepared a lengthy “Outline of my views on the subject of the Granger Cases,” from which the Chief Justice freely borrowed. In refuting the business arguments, Bradley, a confirmed legal anti-quarian, dug up an obscure seventeenth-century English legal treatise, De Portibus Maris . Written by Lord Chief Justice Hale, it justified regulation of the fees charged in public ports with the following language: “For now the wharf and crane and other conveniences are affected with a publick interest, and they cease to be juris privati only.” Waite quoted this statement and so introduced the public-interest doctrine to a long life in American constitutional law. Late in February he circulated the draft opinions among the brethren for their final approval. Bradley, the former railroad attorney, responded enthusiastically—“terse, correct, & safe.” Miller found the opinions “equal to the occasion which is a very great one.”

With these endorsements, the Court released its opinions on March i, 1877, ruling that the Constitution sanctioned economic regulation in the public interest. Waite’s opinion in Munn v. Illinois began by stressing the power of the Chicago grain elevators, which, standing at the gateway of commerce to the East, “take toll from all who pass.” Their business, he argued, citing Lord Hale, “tends to a common charge, and is become a thing of public interest and use” subject to state control. Noting earlier instances of American price regulation, Waite summarily dismissed the contention that such laws unconstitutionally confiscated private property. Underlying these conclusions was the root assumption of Munn v. Illinois —that the popularly accountable legislatures should be the judges of the wisdom of regulatory laws. “For protection against abuses by legislatures the people must resort to the polls, not to the courts,” Waite wrote, a remark that symbolizes the opinion’s status as one of the Supreme Court’s major declarations in favor of judicial self-restraint in economic-regulation cases.

With the Warehouse Act sustained, the Granger Railroad Cases fell easily into place. In brief opinions Waite disposed of them by relying on the public-interest doctrine. He rejected the commerce-clause argument, finding that none of the regulations extended to commerce beyond state lines. He found the claim that the rate laws impaired contract rights to be equally without merit; the states’ constitutions had reserved the power to amend charters.

Justice Field, as expected, wrote a fiery dissent labelling the Munn decision “subversive of the rights of private property” and predicted that its reasoning implied an almost unlimited scope for the regulatory power: “If the power can be exercised as to one article, it may as to all articles, and the prices of everything, from a calico gown to a city mansion, may be the subject of legislative direction.” Field’s gloomy prediction was essentially correct in calling attention to the broad implications of the Munn decision. In modern-day America the scope of governmental regulation is immense; no one doubts that “the prices of everything”—even calico gowns and city mansions—may be regulated. And this intervention by government in economic affairs finds much of its constitutional sanction in Munn v. Illinois and in the line of cases which are its progeny.