First Efforts Against the Gilded Court
Teddy Roosevelt responded to the world in a passionate way. He embraced every moment to its fullest. He was practically broken by the death of his wife. He left politics and New York behind and went West to begin again and everything was so exciting his passions were rekindled with a new love affair–for the promise of America itself.
Certainly in his passions, Teddy felt sorrows for the plights of others. But it was his passions that sought him to conquer each moment that led his robust fight to push back against the gilded compatriots. Certainly there were contradictions in his personality, but one might reflect his strong imperialist tendencies and love of big game hunting were the same passions that led to his love affair to conquer the gilded barons and preserve the lands for the future.
Teddy was thrust into the presidency by McKinley’s death. But Teddy was able to act as he did because his time needed him. Without Teddy’s opening thrusts at the beginning of the 20th century, I do not believe America would have survived until his cousin would begin to transform the nation in the 30’s. It would have collapsed beneath the shear weight of its oppression into overthrowing the government by the citizens’ or the complete crushing of the citizens to prevent the total takeover by the citizens.
I don’t really want to get into the “great man” debate. Teddy, like the founders, like Lincoln, like his cousin Franklin, or LBJ were all somewhat unpleasant. But as leaders they absolutely understood that leading was about solving problems that needed to be solved, or at least attempting to direct the institutions of government to do so. They all abused power to distort those they thought were abusing their own power over others.
I’m not at all certain that it could ever be otherwise.
We argue today about whether Gaius Julius Caesar was a populist or just wanted power for himself. We argue if Washington was a great general or a lucky general. Once considered a beacon of freedom, Jefferson’s star has descended rapidly and Madison’s has risen—not just in my eyes but in many contemporary historian’s views. And yet even though Madison didn’t think his slaves were inferior in intelligence, it was because he didn’t he was afraid.
Lincoln never intended to leave free black citizens in America. I am not at all convinced he would have been hailed great had he not died. But he rose to the need and freed the slaves to pursue his goals. Andrew Johnson was no lover of black men, agreed, but he hated the aristocratic slave owners passionately, had himself been indentured into a servile apprenticeship, and came into office declaring to punish the rebellious leaders severely and never return their land. At first he and Thaddeus Stevens were of one mind.
But Stevens actually thought to make blacks part of America and it was Lincoln’s cabinet (some) that convinced Johnson that Lincoln’s forgiveness plan was better and that otherwise blacks would become too integral in America society. I don’t see how Lincoln was one of our greatest presidents and Johnson was one of the worse. I am certain Lincoln would have been worse. All through the war he was struggling to find somewhere to remove the freed blacks after the war. At the very least he would have removed them somewhere in America, put them on a reservation. He certainly would not have agreed anymore than Johnson did that blacks should have citizenship.
Lincoln however, preserved America and reunited it. He is the great man and Johnson is not. Lincoln rose to the need I suppose to end slavery and win the civil war. Johnson failed to rise to the needs of the reconstruction and was against it. But I can’t find any historical evidence to suggest Lincoln would have been otherwise.
If you don’t believe me, believe Fredrick Douglass. Or maybe you do. Because Lincoln was so unfavorable to blacks (thought Douglass) he became a strong opponent of Lincoln and, along with other free black leaders of the time sharply criticized his colonization efforts.
Lincoln was in danger of not winning the republican nomination so he ran as a Unionist candidate. The radical republicans would not have won on their own in opposition to Lincoln, Johnson, the Tennessee Unionist Democrat was invited on the ticket, but was actually more akin to the radicalist wing of Republicans. A lot of “appeasement” democratic office-seekers were arrested or held off ballots and McClellan was defeated.
Although Douglass would later shift after Lincoln’s assassination, I believe it was political, both on Lincoln’s part to induce Douglass to support him in the ‘64 campaign, and later on Douglass’s part, to campaign against Johnson’s failures to address the issue of black freedom.
But for Douglass, the man he really felt was sensitive to the issues of black freedom and assimilation into the government of the United States was Grant.
Grant in his efforts to aid reconstruction, let corruption overwhelm the process, and by the time his presidency ended the age of the gilded was well on its way to destroying the ideology that every {white male} was born equal.
So as Teddy tried to intervene against his gilded compatriots, he probably prevented the eruption that would have come had he not done so. But of course, the court was as gilded as the era in which they presided.
The exception of course was the first John Marshall Harlan. Not expected to be any other than a regular participant of the court, Harlan became the first real appointment “shock”. He thought the fourteenth amendment changed everything and meant that now the first ten amendments applied to every citizen. Non-citizens, like Asians and Natives, were another matter and his Kentucky racist venom was allowed free reign to be just as unjust, if not more so, than his colleagues. But otherwise, as a justice, his dissents became the pathway to ending gilded justice in the 20th century.
After Teddy decided not to run for a third term, though, his efforts began to fall apart,and, in fact, between 1909 to 1933 were some of the most violent labor upheavals in American history and some of the most autocratic responses. A tug of war between the more socialistic needs of laborers to be more important to the country and the captains of industry desire to deny that partnership, supported by Taft and the remaining gilded justices.
And yet it was not completely unreasonable. After all who paid for the government? Not the people who could barely survive. There was no tax on income and therefore taxes were on goods, on estates, and on profits. But a coterie of elected officials also recognized that the gilded age of golden streets and unpaved roads would not stand if nothing were done.
A different tug of war challenged the still largely rural south. In many southern states blacks actually outnumbered the whites and after reconstruction had reinstated the bourbons to power they were able to find devious means to reignite dissent between the blacks and whites who were pushed into competition for the same resources.
Much the same was being played out with each new wave of immigrants in the north and midwest. These were divides that neither Roosevelt addressed to a great extent. But the courts began to play a stronger role in protecting citizens from the gilded captains. Teddy placed the academics Oliver Wendell Holmes and Rufus Day on the court and then William Henry Moody, a career politician and a member of his cabinet.
Moody’s minority opinion in the Employers Liability Cases would serve to transform future generations (until the present court) towards more favorable regulations of responsibility to burdened by employers treatment of workers. I don’t know of any civil rights cases he authored in his brief tenure on the court, but before being appointed he had sometimes been referred to as the ghost of Thaddeus Stevens who had returned to haunt the halls of government.
And then he wrote the majority opinion in Twining v. New Jersey that denied the right to not self-incriminate applied to the states, Twining is a kind of horrendous read from today’s perspective, but no majority decision had as yet been handed down supporting Harlan’s incorporation theory of the fourteenth amendment. And even Moody didn’t accept it, apparently.
Wilson inexplicably (to me) appointed the greatest “liberal” justice of all time, Louis Brandeis, and John Clarke, a railroad lawyer. Clarke also didn’t last a long time on the court due to great feelings of animosity between him Justice MacReynolds.
I find a great deal of difficulty in understanding Clarke. A staunch anti-corporatist as a newspaper editor in Youngstown, But they when he entered law practice he became the chief corporate lawyer for the New York, Chicago and St. Louis Railroad. On the supreme court he would again advocate against corporate power and in Hammer v. Dagenhart wrote a vigorous dissent against the court’s refusal to restrict child labor.
But then I guess I should grant Wilson some grudging respect, as he was somewhat anti-monopolist, even if he never favored labor and supported the Palmer raids on labor and immigrant workers from southern and eastern Europe.
But with these exceptions, and I do not believe any were still on the court when Franklin became president, the court remained strongly anti-progressive and of course during FDR’s first time the court continually refuted his attempts to respond to the economic crisis. By 1952, however, the court was of an entirely new persuasion.
My opinion of course, is that the court became increasingly concerned with balancing common justice. It is difficult to compare with the courts of the first half-century since the courts would intervene in states only if the states attempted to interfere with the regulation of commerce. There were few other federal issues to deal with since the bill of rights was interpreted only as rights the states had against the federal government. But certainly the gilded court between 1870-1936 saw its role as primarily an arbiter between the wealthy and not as an arbiter for any others whom they basically assumed had little standing in the federal system.
The court continued to support federal commerce regulation rights, but the preponderance on the cases it took up were what some call “the fat cats against the fat cats” and in my opinion they actually did a pretty good job of trying to balance the rights of one fat cat against the other fat cat. Justice prevailed when money could be had to support justice.
None of these cases however had much to do with constitutional democratic principles of the bill of rights unless there was and abject violation in regards to commercial rights and protections. Beginning with Gibbons v. Ogden, the court, not completely wrongly, viewed federal authority as the complete right to dominate any interstate relationships, especially commercial, to the federal government and all intrastate matters were left chiefly to the states.
Protection of individual justice in intrastate affairs reached its hallmark in two late cases of the first era of the gilded court, Plessy and Lochner which exemplify their inability to conceive that common justice extended to common individuals even in the realm of interstate commercial relationships.
If ever a case was ripe to do so, it was Plessy v. Ferguson. Generally Plessy is considered a case that legalized racial segregation under the concept of separate but equal. But it did much more in my opinion, because the case could intervene as it was a case about interstate commerce and gave the community to apply the fourteenth via commerce and contracts. Instead it was used to put the nail in the coffin of any constitutional justification that the court could protect anyone as an individual.
Since segregation was not that much of a thing in any particular section of the country as a legal concept, it was nevertheless a practice. It was also an ideology supported by one of the more prominent members of the black community and one of its leading educational advocates—Booker T. Washington.
Washington’s idea of black citizens accepting a separate status and being able to advance to equality by recognition and acceptance of a separation gave him a great deal of status. He became the ideal white envisionment of the “good nigger” that could unite whites in a common belief that it was fine to delegate blacks to a lesser class of humanity.
This ideology needed a prompt to support it and a very irrational and ridiculous notion began to be espoused. In the late teens of the next century this very ridiculous notion began to be promoted by very well educated professor Thomas Owsley who would become the definitive historical authority of southern history for the next forty years.
The problem of course was Owsley’s history was completely non-historical. There are two foundational points that are completely unfactual in Owsley’s revised historical interpretation. The second prime point of white solidarity was so rooted in the legends that been circulated on black ancestry.
Ah! you don’t hear it too much anymore, even in the severest racial slurs, but Owsley actually educated the populace for forty years that the first Alkebulans were only partially human, they had tails, there noses were those of apes, and there was wool (like sheep) upon their heads. So of course they were inferior, these monkey-tailed, gorilla-nosed, sheep-haired people brought from Africa only became human at all because white men partially civilized them (does that mean white men didn’t rape black women, but beastiality was a common practice?)
Well even as Owsley’s concept was being promoted in his textbooks, his other premise, that because of that, all white men in the south knew Africans were merely tamed animals and had all unitedly socialized with each other and had a merry time together taming these beasts into semi-humans was promoted by historians for forty years from college campuses. Even though the beastliness was more or less discounted after that, the intellectual inferiority of the blacks persists, rooted in Owsley’s “educated” insanity as the supposedly definite authority on the south before the civil war.
But America had no structural guardrails for those individuals to protect them from its laborers. In England, the class authority was supported by a centuries long authority of class that had been structured under the guise of military/police authority that supported this usurpation of the hierarchies over labor.
But the Americans actually had no such established police regulation. At first it was all about joining together to survive at all. After the British were able to reassert the authority of the landed over the rebels led by Bacon, it was quickly realized that the established continental police authority lacked any structure to support master over slave.
If the masters could not protect themselves from the laborers they wished to command, they needed to fashion a new form of police structure; and they did this by creating structural colorism.
By the time of the American revolution and constitutional development this colorism was ingrained into the legalese of the populace that it was seen as the natural order. How better to police the many by the few than to enlist the white slave as not-slave to ensure he kept the black slave in his place. The white worker was declared “free’ but could be treated as a slave; but his freedom remained contingent upon the black being the slave.
Now the Alkebulans could be perpetually lesser to the white slave and the laws could be revised to suppress the white slave into being a free slave, and all those inferior laborers Aristotle thought intellectually inferior could be cast totally upon those of a different color.
Booker T. Washington’s non-assimilism supported this proposal in all of its essentiality, basically accepting for the now supposedly free black Americans that they were of a lower class of humanity. Washington’s model didn’t sit well with all blacks, although many did see his ideology as a way to eventually earn equal status at least legally. Originally Martin Luther King assumed something similar—King thought that legal non-segregationism would lead to an assimalist culture.
The problem however remained that was so exemplified in Plessy. Race has never been about keeping blacks suppressed in America, it has always been about keeping white laborers suppressed by granting them a higher status of humanity. And that has been perpetually able to prevent the white laborers from understanding how they themselves have been conquered into submission.
By supporting the separation of blacks and whites as somehow inherently natural it simultaneously supported the separation of all workers from their corporate masters as inherently natural as well.
Justice, on a national level, remained common justice between barons but denied all justice between those barons and others. And even though “slavery” of owning a person was outlawed, slavery could be enforced via the contract, which as I’ve pointed out in the past, was actually the beginning of slavery according to many anthropologists.
Of course, slavery goes back further and has always been associated with conquest. But the goal of slavery via conquest is to eventually assimilate the conquered into the culture of the conquerors.
American slavery was always meant to deny assimilation and what better way to do that than revive the contract as a way to force others into the subjection by suggesting it was somehow a willingness of both parties to enter into the bargain and thus transfer the contract to serve from a contract to become enslaved into a free contract of equal partners.
Certainly there remains a fallacy in this judicial reasoning that stands out to me. Contracts between those of equal authority (for instance between a railroad and the mining companies which resulted in numerous court decisions) could be adjudicated because they supposedly were of mutual benefit to each. If one side tried to deny the justice of such a contract the court could easily attempt to try to determine which side had violated the contract. But they seemed incapable of recognizing a contract could be between parties of unequal bargaining authority, that contracts could be used to coerce.
But the labor unrest that had been building for over a century was coming to a head. The inequitable power of the barons over labor was spilling over into greater and greater dissatisfaction and the multiple eruptions between farmers and merchants was increasingly becoming violent urban clashes between the government supported by the barons and the workers’ demand to have themselves considered part of the system of common justice. States, and then under TR, the federal government, began to take some action against to embrace the people’s concerns.
It all came to a head before the court in 1904. The court had more and more become inclined to interfere in intra-state regulation of some of the corporate baron’s excesses. Lochner v. New York was just such a case.
The underlying case began in 1899 when Joseph Lochner, a German immigrant who owned a bakery in Utica, New York, was charged with violating New York's Bakeshop Act of 1895. The Bakeshop Act had made it a crime for New York bakeries to employ bakers for more than 10 hours per day or 60 hours per week. He was convicted and ultimately appealed to the U.S. Supreme Court. A five-justice majority of the Supreme Court held that the law violated due process of the fifth & fourteenth amendment, stating that the law constituted an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract". Four dissenting justices rejected that view, and the dissent of Homes, in particular, became one of the most famous dissents in U.S. history.
In the majority opinion written by Rufus Peckham, this theory is expressed quite clearly:
“There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare, of the public, and that the interest of the public is not in the slightest degree affected by such an act. . . .
“It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? . . . No trade, no occupation, no mode of earning one’s living, could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the ability of the laborer to support himself and his family. . . .”
Holmes dissent was biting, nearly as satirical as Mark Twain’s novel on the gilded principals:
“ . . . This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics. . . .
“[A] Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. . . .”
But for my part, the great John Marshall Harlan really dissected the problem of the inviolability of contracts when he wrote: {emphasis mine}
“It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength. Be this as it may, the statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor.”
Of course contracts that are not on an equal footing are unjust and uncommon on their face. That has created the conflict that has long existed between boss and laborer. If the contract has no foundation other than that of subjugation of the one to the other then the contract becomes a contract of enforced servitude and we are back to where we started and what the thirteenth amendment forbids–the enforced servitude of people.
Contracts that are not a bargain between equal participants are the very principal that formulates the notion of what slavery entails.
To paraphrase Abraham Lincoln, “A house divided against itself cannot stand….but if the foundation can be built on the chimera of delusion it might crumble without the participants understanding what they have built is an illusion.”
If enough confusion can be presented into the house that the foundation is solid and that the only problem is the illusion that it is being invaded by outsiders…well, we can blame the outsiders externally and know at the same time the foundation does not support the house.
It was never the inferiority of black Americans; it was never the inferiority of the immigrants; it was never the horror of “communism”depriving people of wealth, or of what they might individually earn. The enemy is a chimeric monster to keep authority through dividing the house into differing parts. The monster’s fire comes only from none of the parts understanding they are not differing parts but all function together to terrorize.
And of course the divided parts can now breathe terror upon each other allowing the monster to continue to grow.
Sources:
General Correspondence. 1833-1916: Frederick Douglass to Abraham Lincoln
https://www.senate.gov/artandhistory/history/common/generic/Wade-DavisBill.htm
https://www.rbhayes.org/hayes/lincoln-s-evolving-racial-views/#:~:text=As%20the%20Conkling%20letter%20and,%E2%80%9D%2C%20as%20he%20put%20it.
Income Tax in the US was first established in 1861 but it wasn't until the Supreme Court in 1916 ruled that the income tax law of 1913 was Constitutional that it finally stuck. We have had income tax continually since 1916. What is funny is it wasn't the income tax to which the male population objected, it was having to reveal their income (a harbinger of Trump?)