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  Justice Field's concurring opinion rested almost entirely on the view that the income tax was a violation of the uniformity clause of the Constitution. He relied on Cooley's Treatise on Taxation, on state cases distinguishing between a tax and a taking, and, of course, on his own earlier circuit court opinions under the equal protection clause. 107

  By the time the Income Tax Case was decided, then, the anti-redistribution principle had come to be thought of as part of the very essence of the constitutional law of a neutral state. More generally, the impermissibility of redistribution embodied one of the central tenets of the nineteenth-century idea of the liberal state. 108 As this idea was slowly absorbed into the defining structure of legitimacy, it also came to be gradually woven into the fabric of everyday legal assumptions. Not only did the constitutional framework come to express these premises; they were also woven into a complex system of legal doctrine. The emergence of a distinction between public and private law is one important example of the effort to create a private realm immune to the dangers of redistribution.

  We turn next to other areas of Classical Legal Thought to see how its creators sought to advance the anti-redistributive principle and how the early-twentiethcentury Progressive challenge sought to undermine this anti-redistributive structure of Classical Legal Thought.

  Police Power Doctrine: Categorical Thought and Neutrality

  The history of constitutional doctrines about the police power presents an excellent illustration of my assertion that, until very late in the nineteenth century, categorical modes of thought made it possible for jurists to believe that there could be a form of neutral legal reasoning that was fundamentally different from political reasoning. It also illustrates the ways in which the processes of integration, generalization, and abstraction of legal categories eventually strained the distinction between the legal and the political to the breaking point.

  The idea that the police power was one of the headings of legislative poweralong with, for example, taxation and eminent domain-began to emerge during the 185os and became a standard description of legal architecture by the 1870s. Before Massachusetts Chief Justice Lemuel Shaw's derivation of the police power from sovereignty in Commonwealth v. Alger (1851),109 jurists did not generally derive the regulatory powers of the state over health, safety, and morals from notions of inherent state power. Instead, the dominant mode of earlier postrevolutionary legal analysis was to treat state power in essentially private law contractual terms: regulatory power was derived from "reservations" in the state's grants to landowners or corporations. Shaw's shift to sovereignty as the source of regulatory power is an important measure of the declining vitality of the grant theory as social reality moved away from land grants and as free incorporation laws eviscerated the "grant" or "concession" theory of the corporation.110

  By the 1870s, police power had become the standard legal category for talking about the state's regulatory power over the health, safety, and morals of its citizens. At this point, the question that most concerns us emerged: How did jurists analyze what, for twentieth-century thinkers, would come to be perceived as an irreconcilable contradiction between regulation and takings? How did they believe themselves able to deploy categorical thinking to avoid the necessity of political modes of analysis by way of line drawing and balancing tests?

  In virtually all legal fields, the aspiration of late-nineteenth-century legal thinkers was to depoliticize public law categories by deriving them from those of private law. In the police power area, for example, they sought to develop doctrines that were congruent with the common law of nuisance. Wherever it was legitimate for the state to invoke its power to abate a public nuisance (which, for Blackstone, was only a delegation of the individual's private right to abate that nuisance),' 11 it was also legitimate for the state to act under the police power. During the 1870s and 188os, police power analysis was regarded as largely derivable from categories developed in the common law of nuisance.

  How did nineteenth-century nuisance law manage to avoid the balancing test that dominates its twentieth-century counterpart? First, in most fields covered by nuisance law, common law judges managed to invoke the maxim sic utere ("use your own so as not to injure another's") to avoid balancing."' They did this in a number of ways. First, they developed a long list of per se nuisances, which could be abated without hearing any justification of the defendant. Houses of prostitution, bars, and stills were at the top of the list, but such places as gunpowder storage facilities, cemeteries, and slaughterhouses were also frequently included. The content of the class of per se nuisance was derived from customary-and, as the nineteenth century wore on, increasingly Victorian-norms.113 Second, most nineteenth-century nuisance cases reflected a clear preference for inactivity over active uses of land, and courts frequently chose natural over artificial uses.114 In general, except over the question of injunctions, where a balancing test did emerge in the late nineteenth century, 115 courts simply held that most substantial interferences with the "quiet enjoyment" of land were nuisances. The abundance of land in America enabled them to postpone the issue of conflicting land uses that by the 186os had already become a pressing question in the overpopulated and polluted English industrial cities.

  For judges deciding police power cases in the 1870s, the law of nuisance provided the categories for determining when it was legitimate for the state to regulate on behalf of the health, safety, and morals of its citizens. When Chief Justice Morrison Waite invoked the category "business affected with a public interest" to uphold the regulation of grain elevator rates in Munn v. Illinois (1876),116 he was attempting to infuse the newly emerging public purpose doctrine with the content of common law nuisance categories.

  Let us see how differently courts approached four major categories of cases that shaped state and federal police power decisions between 185o and 1905. Two dealt with issues of public health: restrictions or prohibitions on the sale of liquor that derived from the re-emergence of the temperance movement during the 185os,117 and restrictions or prohibitions on the sale of oleomargarine that reflected legislative motivations ranging from protection of dairy interests to protection of consumers against deception. 118 Two other categories were regulation of rates charged by railroads and grain elevator operators, and regulation of working conditions, dealing with minimum wages, maximum hours, and working hours of women and children.

  The U. S. Supreme Court decision in Mugler v. Kansas (1887),119 unanimously upholding a Kansas prohibition statute, illustrates how both state and federal courts had little conceptual difficulty in dealing with anti-liquor legislation. Since it was within the well-recognized category of protection of "the public health, safety, and morals," courts did not need to inquire further about the confiscatory consequences of such a statute. If a state could abate a public nuisance without compensation, it could similarly prohibit such a nuisance by statute. 120

  Judicial treatment of anti-margarine legislation presented somewhat more complicated issues. Was such legislation really aimed at protecting consumers' health or guarding against consumer deception, or was it an effort to protect the dairy industry? Since regulation of the sale and ingredients of food was traditionally within the police power, courts also, as in the liquor cases, strongly tended to avoid close scrutiny of these acts.

  But the margarine cases 121 raised more general questions that increasingly came to dominate adjudication under the police power. Here, as in the Slaughterhouse Cases,122 courts revealed increasing sensitivity to the power of legislatures to confer monopolies under the guise of protecting the public health. Some judges were simply unwilling to go behind the legislative declaration that they were acting under the police power. Others-an increasing number by the end of the century-began to quote from Thomas Cooley's influential Constitutional Limitations (1:368)123 on the limits of the police power:

  The limit . . . in these cases must be this: [T]he regulations must have reference to the comfort, safety, or welfare of society; .
. . they must not, under pretence of regulation, take from the corporation any of he essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise.124

  Until the 189os, virtually all of the police power cases that struck down legislative regulations did so on the view that they were "under pretence of regulation" and not "real" exercises of the police power. Courts did not have to confront formally the conflict between regulation and takings because the question was answered at a prior categorical state: Was this a real exercise of the police power?

  Just as this mode of analysis avoided structuring the legal question in terms of a real conflict between the police power and property rights, so too, for a time, did analysis of the regulation of working conditions avoid presenting the question as a choice between two conflicting positions. The question continued to be analyzed in terms of whether a particular regulation was within the traditional scope of the police power or was a mere disguise for interference with the market.

  Lochner v. New York (1905)125 was argued in terms of whether a law limiting bakers to a sixty-hour work week fell within the legitimate province of the legislature to protect the health of workers. Despite clear evidence that the health of bakers was especially susceptible after long hours of work, the U. S. Supreme Court insisted that "any law . . . might find shelter under such assumptions, and conduct, properly so called . . . would come under the restrictive sway of the legislature."126 "It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is classed to be the police power for the purpose of protecting the public health or welfare are, in reality, passed from other motives." The "other motives" regarded as illegitimate by the Court were those behind regulations that invoked the police power in order to justify interference with contractual freedom for the purpose of redistributing economic power.

  If a court suspected the redistributive motives of the legislature, how could it distinguish between what, on the one hand, Cooley had called "police regulations, in fact," and, on the other, redistribution "under pretence of regulation"? To do so meant that it was necessary to suppose that there was an inherent category of things that affected health. "In looking through statistics regarding all trades and occupations," the court in Lochner concluded, "it may be true" that the trade of baker is more unhealthy than many other occupations. Still, "[we] think that there can be no fair doubt that the trade of baker, in and of itself, is not an unhealthy one to that degree" that would justify regulation. 121 In short, every time a legislature offered statistics to argue that there was a continuum of unhealthy occupations, a court, suspecting its redistributive motives, needed to inquire whether the particular occupation in question was "in and of itself" unhealthy. When it was argued that only the legislature could legitimately draw the appropriate line involving questions of degree, the court was forced to support its suspicion of legislative motives by asserting that unless the question was really one of kind, involving an inherent category of things affecting health, there could be no real constitutional check on the legislature. Here was the intellectual process by which the categories of Classical Legal Thought became ever more essentialist at precisely the moment when the judges were confronting the claim that in a changing world only the legislature could decide what in fact affected the health of a citizen.

  The emergence of industrial society thus meant not only that redistributive motives would inevitably be activated by the reality of an increasingly unequal society. It also meant that the relatively fixed common law categories on which police power doctrines' had been erected would fall apart, as any categorical distinction between the health of a worker and the conditions of industrial life became ever more difficult to maintain. As these traditional categories of police power doctrine dissolved, every exercise of the police power could suddenly be seen as disguising redistributive motives, for, indeed, every exercise of the police power had always been capable of being characterized as confiscation or redistribution. Only the common law foundations of police power doctrine had obscured this conclusion. By representing the intellectual inquiry as one of deciding whether the challenged regulation was really within the police power and then limiting that category to standard common nuisances, judges traditionally had been able to avoid the charge that they were engaged in the political task of choosing which regulations to approve. But once the problems generated by industrial society undermined the ability of courts to continue to offer traditional definitions of the category of health, safety and morals, the inherently redistributive potential of the police power emerged with a vengeance.

  In chapter 2, we turn from public law to private law to see the ways in which the constitutionalization of "freedom of contract" in Lochner produced a widespread and sophisticated attack on the underlying premises of contractual freedom. This also serves to introduce Progressive Legal Thought, which, in reaction to the Lochner decision, developed an increasingly all-encompassing critique of Classical Legal Thought. Next, we examine the law of agency to illustrate two separate but related themes in Classical Legal Thought. Agency law serves as a litmus test for the characteristic tensions that arose out of the emergence of organizational society in the late nineteenth century. Defining the relation between principal and agent not only became an important expression of the growing problem of controlling an increasing number of employees within large and impersonal corporations; it also represented an important collision between the premises of individualism and those of organizational society. The attempt to absorb agency law into the law of contract became the catalyst for the most important challenges to freedom of contract. Finally, we turn to the Progressive assault on the idea of objective causation in order to highlight one of the areas in which the scientific claims of Classical Legal Thought were overthrown.

  The decision of the U.S. Supreme Court in Lochner v. New York (19o5)' brought Progressive Legal Thought into being. Lochner, which struck down a maximum hours law for bakers as an unconstitutional interference with freedom of contract, galvanized Progressive opinion and eventually led to a fundamental assault on the legal thought of the old order.

  Freedom of Contract

  It was appropriate that the elevation of freedom of contract to the level of a sacred constitutional principle should have become the focal point of controversy, for it represented the convergence of some of the most basic themes in Classical Legal Thought. It expressed, above all, the post-Civil War triumph of laissez-faire principles in political economy and of the view that "that government is best which governs least." Closely connected to the laissez-faire position was a view of the market as a self-executing system that justly distributed rewards through voluntary agreement among individuals. The institution of contract thus represented the legal expression of free market principles, and every interference with the contract system-such as regulation of the terms and conditions of a labor contract-was treated as an attack on the very idea of the market as a natural and neutral institution for distributing rewards.2

  Ironically, the constitutionalization of freedom of contract in Lochner came after two decades of astonishing change in the structure of the American economy that had resulted in the creation of giant corporations capable of exercising enormously disproportionate market power. Monopolization of the economy now would provide a catalyst for Progressive critiques of the traditional assumption of rela tively equal bargaining power that had formed the foundation of legitimacy for the freedom of contract doctrine within Classical Legal Thought.

  The Progressive attack on freedom of contract gradually developed not only into a critique of the voluntariness of the existing system of contract but, more basically, into a challenge to the fairness and justice of the entire structure of market relations.

  Roscoe Pound's powerful article on "Liberty of Contract" (igoq)3 represented the most important early reaction of legal Progressivism
to the Lochner decision and its progeny.4 The freedom of contract doctrine, Pound argued, was of recent growth in the courts and represented a conception of "equal rights" between employers and employees that could only be called a "fallacy to everyone acquainted at first hand with actual industrial conditions." Pound asked, "Why then do courts persist in the fallacy? Why do so many of them force upon legislation an academic theory of equality in the face of practical conditions of inequality?"'

  The explanation was not that "individual judges project their personal, social and economic views into the law" or that the politics of judges had dictated these decisions.' Since it had become so deeply embedded in the law, "[s]urely the sources of such a doctrine must lie deeper," in a more pervasive system of legal consciousness.' Pound then proceeded to offer a series of explanations of why so great a chasm existed between "academic theory" and "practical conditions"between what he would soon call the "law in books" and the "law in action"that would amount to the critical explanatory framework of Progressivism. There was "an individualist conception of justice, which exaggerates the importance of property and of contract [and] exaggerates private right at the expense of public right. . . ."8 While these views had come to dominate not only law, but also economics and politics, they were out of touch with "the social conception of the present."9 These ideas had been perpetuated by the training of judges and lawyers in an eighteenth-century natural law philosophy at the same time as they had "pretended contempt" for all forms of legal philosophy. "As a result . . . we exaggerate the importance of property and of contract . . . [and] exaggerate private right at the expense of public interest." 10