CA scotus

=<div>
</div><div>annex fot scotus US history 9 22</div><div>
<div><u style="font-family: " times="Times" new="New" roman="Roman" font-size="font-size" large="large" background-color="background-color" rgb="rgb" box-sizing="box-sizing" inherit="inherit" line-height="line-height" margin="margin" px="px" padding="padding" border-style="border-style" solid="solid" border-width="border-width" background-repeat="background-repeat" no-repeat="no-repeat">Property Rights:  Mr. Schiff has brought a number of takings cases during his tenure at the Pacific Legal Foundation.  For example, he sued San Jose, California for passing an affordable housing ordinance in 2010 that required at least 15 percent of new residential development projects to be sold at affordable prices.  Mr. Schiff, on behalf of a building industry association, claimed this law was an unconstitutional taking.  The California Supreme Court rejected Mr. Schiff’s argument and unanimously upheld the ordinance.<a href="https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#ftn21" name="ftnref21" style="text-decoration-line: none; font-weight: bold; outline: none;" times="Times" new="New" roman="Roman" font-size="font-size" large="large" background-color="background-color" rgb="rgb" box-sizing="box-sizing" inherit="inherit" line-height="line-height" margin="margin" px="px" padding="padding" border-style="border-style" solid="solid" border-width="border-width" background-repeat="background-repeat" no-repeat="no-repeat" touch-action="touch-action" manipulation="manipulation" transition="transition" all="all" s="s" ease="ease">[21]</a></div><div>=
“Long-standing historical practice among the states demonstrates a

common understanding that legislatures may formally consult with and

seek nonbinding input from their constituents on matters relevant to the

federal constitutional amendment process,” the ruling read in part.

“We see no evidence the drafters of the California Constitution

intended to deprive the Legislature of a tool other state legislatures

have long used to ensure they are truly speaking on behalf of their

states in the federal constitutional amendment process,” Justice Kathryn

M. Werdegar <a target="_blank" href="http://www.courthousenews.com/2016/01/04/citizens-united-bill-cleared-for-calif-ballot.htm" title="wrote">wrote</a> for the state’s high court.

The development paves the way for the state legislature to put this

issue before voters statewide in 2016. “I certainly expect it to be on

the ballot one way or another,” Derek Cressman, who was the campaign

manager for the proposition before it was removed from the ballot, <a target="_blank" href="http://www.latimes.com/local/lanow/la-me-ln-california-supreme-court-ballot-20160104-story.html" title="told">told</a>

the LA Times. Hundreds of thousands of Californians also have spoken in

support of an amendment through local advisory referenda, Common Cause

points out.

A similar advisory referendum is <a target="blank" href="http://freespeechforpeople.org/arkansas-approves-ballot-initiative/" title="slated">slated</a> to appear on the ballot this November in <a target="blank" href="http://www.commondreams.org/newswire/2015/05/14/arkansans-and-national-groups-launch-ballot-initiative-overturn-citizens-united" title="Arkansas">Arkansas</a>. And in Washington state, backers of yet another initiative aimed at overturning Citizens United <a target="_blank" href="http://blog.seattlepi.com/seattlepolitics/2015/12/30/initiative-aims-to-ask-washington-voters-should-we-treat-corporations-as-people-in-elections/" title="submitted">submitted</a>

330,000 signatures to the secretary of state at the end of

December—more than enough to qualify the measure for the 2016 ballot.

===
prop 49 calpirg:

This morning the California Supreme Court heard the oral arguments

over whether to allow Prop 49 back on the ballot. Prop 49 is a voter

instruction measure calling on our elected officials to overturn

Citizens United and reduce the influence of big money in politics.

CALPIRG actively lobbied for the passage of AB 1272 (Lieu) out of the

legislature to authorize the ballot measure. When the measure was

challenged, we joined Money Out, Voters In, Free Speech for the People,

California Common Cause, the Courage Campaign, and the California Clean

Money campaign on an amicus brief to the court, outlining the evidence

that the framers of the California constitutional convention were

intentional about including a right to voter instruction measures such

as Prop 49.

Chief Justice Tani Cantil-Sakauye has already made clear that she

believes the ballot measure is constitutional: "I do not see such a

clear showing that the Legislature lacks authority to place the measure

before the voters, warranting this court taking the extraordinary step

of removing the measure from the ballot, thereby disenfranchising the

voters," <a href="http://www.latimes.com/local/california/la-me-court-ballot-20151006-story.html">she wrote.</a>=</div><div>
</div><div>https://www.alternet.org/2022/09/donald-trumps-tyrannical-supreme-court/</div><div>tom dis, intro ommotted]</div><div>
</div><div>...Historically speaking, however, the Warren Court was the exception, not the one cobbled together by Donald Trump and effectively, if not officially, presided over by Justice Clarence Thomas. The Supremes were born to be bad.</div>Enshrined in the ConstitutionFrom the beginning, the Supreme Court was conceived as a bulwark against excessive democracy, as indeed was the Constitution itself.During the years leading up to the 1787 constitutional convention in Philadelphia, the country was in a chronic state of <a href="https://yalebooks.yale.edu/book/9780300244359/class-matters/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">upheaval</a>. Local insurrections against heavy taxation, land and currency speculators, and merchant-bankers had called into question the security and sanctity of private property. Local legislatures proved vulnerable to take-over by the hoi polloi who felt free to cancel debts, print paper money, stop evictions, and oust elites from their accustomed positions of power.Various impediments to this kind of “mobocracy” were baked into the Constitution, including the electoral college for presidential votes and the indirect election of senators by state legislatures (until the 17th amendment was ratified in 1913). The Supreme Court was just another such obstacle.Founding Father James Madison typically saw that court as protection against “<a href="https://constitutioncenter.org/news-debate/special-projects/a-madisonian-constitution-for-all/essay-series/james-madison-and-the-judicial-power" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">factious majorities</a>” at the state and local level that might threaten the rights of property-holders. Fearing “passionate majorities,” he went so far as to propose a joint executive-judicial council with veto power over all legislation.That idea went nowhere. Still, the principle of “judicial review” — the power of the court to have the last say on the constitutionality of legislation — although not made explicit in the Constitution was implicit in the way the founding fathers sought to reign in democratic impulses. French author Alexis de Tocqueville in his nineteenth-century classic, Democracy in America, typically recognized the special status accorded to judicial elites, describing them as <a href="https://www.amazon.com/dp/0674517822?tag=typepad0c2-20" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">America’s “high political class</a>.“At first, the Supreme Court’s services weren’t needed as a guardian of vested interests and its presence was muted indeed. It met in the basement of the Capitol and, between 1803 and 1857, struck down only two federal statutes. (Compare that to the 22 it <a href="https://law.justia.com/constitution/us/acts-of-congress-held-unconstitutional.html" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">struck down</a> between 1992 and 2002<a href="https://constitutioncenter.org/news-debate/special-projects/a-madisonian-constitution-for-all/essay-series/james-madison-and-the-judicial-power" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;"> alone</a>.)The court would, however, establish an enduring reputation for conservatism thanks to its infamous 1857 Dred Scott decision. By a 7-2 majority, the justices declared all Black people — free or enslaved — to be non-citizens. They also ruled that, even if a slave made his or her way to a free state, he or she would remain the property of the slave owner and declared that no territory under U.S. jurisdiction could prohibit slavery.Dred Scott is generally considered to be the most egregious decision in the court’s 250-year history. That ruling was, however, in keeping with its basic orientation: to side with propertied interests, not the unpropertied; slave-owners, not slaves; and industrialists and financiers rather than with those who worked for and depended on them.Gatling-Gun Injunctions and Yellow Dog ContractsAfter the Civil War, the court became ever more aggressive in defending the interests of the powerful. There was a need for that as, once again, the powerless threatened the status quo.Reconstruction — the period immediately after the Civil War when the Federal government imposed martial law on the former Confederate states — empowered ex-slaves to militantly exercise their rights to full civil and political equality under the 14th and 15th amendments. Desperate farmers in the Midwest, on the Great Plains, and in the South were then mobilizing to protect themselves from predatory banks, railroads, and commodity speculators. Industrial workers were engaged in pitched battles with their employers, confrontations that elicited widespread sympathy in cities and towns across the country.“Passionate majorities” needed chastening and the court met the challenge. It launched an era, much like our own, of “judge-made law” that would last from the late 1880s into the 1920s.Early on, the Supremes declared a civil rights act <a href="https://www.washingtonpost.com/outlook/2021/07/16/supreme-court-anti-democracy/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">unconstitutional</a>. Later, in Plessy v. Ferguson, they made segregation constitutionally legitimate via the doctrine of “separate but equal” and so helped restore elite white rule in the South. By ensconcing segregation, they also ended the hopes aroused by the Populist movement for an alliance of black and white rural poor against predatory banks and landlords.The populist fervor of that era led some state legislatures to adopt laws regulating railroad rates and the fees charged by grain-elevator operators, while challenging corporate monopoly power over the vital necessities of life. Initially, the court tread <a href="https://www.thirteen.org/wnet/supremecourt/capitalism/history.html" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">carefully</a>. Soon enough, however, the justices shed that reticence, using the power of judicial review to wipe such laws off the books. With a distinct touch of irony, they concluded that, in the eyes of the law, <a href="https://journals.openedition.org/transatlantica/6473" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">corporations</a> were indeed <a href="http://historymatters.gmu.edu/d/5746/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">persons</a> and so entitled to the very civil rights guaranteed to ex-slaves by the 14th amendment (“rights” presumably denied them under state regulatory statutes).Regulating business, the justices suggested, was tantamount to confiscating it. As one railroad lawyer had argued before the court, such regulation was “<a href="https://journals.openedition.org/transatlantica/6473" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">communism pure and simple.</a>” From that same perspective, the court found a federal law establishing an income tax unconstitutional. (It took the 16th amendment, passed in 1913, to make the income tax national law.)Industrial capitalism accumulated its wealth by subjecting the lives of millions of workers to abject misery: poverty, overwork, danger, disease, and profound indignity. It would prove a bloody affair, igniting confrontations between workers and their bosses more violent than anywhere else in the western world. As those workers began organizing collectively, their middle-class allies occasionally succeeded in passing relevant laws for minimum wages, outlawing child labor, putting a ceiling on the work hours an employer could enforce, and making the workplace safer or, at least, compensating those injured on the job.The justices of the Supreme Court, some of whom had once been lawyers for the railroad, iron, and steel <a href="https://press.princeton.edu/books/hardcover/9780691634036/a-muted-fury" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">industries</a>, knew just what to do in response to such democratic challenges to the prerogatives of capital. While the right to strike might be honored in theory, the court issued injunctions to stop such strikes from happening so often that the era became known (after the early machine gun of that time) for its “<a href="https://digitalcommons.law.umaryland.edu/mlr/vol78/iss4/4/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">Gatling-gun injunctions.</a>” That term was used in part as well because such rulings could be enforced by the Army or its state militia equivalents, not to mention the imprisonment and heavy fines often involved. During one such bloody <a href="https://www.amazon.com/dp/0674517822?tag=typepad0c2-20" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">encounter</a>, William Howard Taft, then an Ohio judge, later president, and finally chief justice of the Supreme Court, complained that federal troops had “killed only six of the mob as yet. This is hardly enough to make an impression.”To rub yet more salt in the wound, such injunctions were often justified under the Sherman Anti-Trust Act of 1890. Originally designed to break up monopolies, it would be used far more frequently to bust strikes (and sympathy boycotts) on the grounds that they were “conspiracies in restraint of trade.” The court repeatedly enjoined “<a href="https://www.amazon.com/dp/0674517822?tag=typepad0c2-20" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">secondary boycotts</a>“; that is, supportive actions by other unions or groups sympathetic to striking workers. It also struck down a Kansas statute that banned “yellow dog contracts” — agreements promising that they would never join a union that many workers were forced to sign on being hired.Laws that attempted to ameliorate the harshness of working-class life were treated with similar disdain. New York state, for example, passed one banning cigar making in tenement workshops as a danger to workers’ <a href="https://press.princeton.edu/books/hardcover/9780691634036/a-muted-fury" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">health</a>. The court saw otherwise, treating such tenement dwellers as independent contractors who had freely chosen their way of life.New York also tried to limit the hours bakers could work to 10 a day and 60 a week. At the time, they were normally compelled to work 75 to 100 hours weekly in ill-ventilated cellars of tenement bakeries where breathing in the flour was a danger to their lungs. The justices begged to differ. In Lochner v. New York — named after the bakery owner who sued the state — they refused to recognize any threat to the well-being of bakers who, in the eyes of the court, had freely contracted to work on those terms. They were after all as free as their employers to strike a bargain or <a href="https://www.nyulawreview.org/issues/volume-73-number-2/the-history-of-the-countermajoritarian-difficulty-part-one-the-road-to-judicial-supremacy/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">choose not to work</a>.The freedom of contract was then the reigning judicial orthodoxy, inherited ironically enough from the long struggle against slave labor. Unlike slavery, free labor allegedly enjoyed an equality of standing in any contractual relationship with an employer. Laws or unions which interfered with that “freedom” were rendered nugatory by the Court and it didn’t matter how obvious it was that the imputed equality between owners of capital and the men and women compelled to work for them was illusory.The only laws of that sort which passed muster were those protecting women and child laborers. The justices considered such workers inferior and dependent, and so, unlike men, unable to freely enter into relations of contractual equality. In the case of women, there was the added danger of jeopardizing their maternal role. Still, consider it an indication of just how reliant businesses had then become on child labor that even a federal law that controlled the ages and hours children could <a href="https://www.h-net.org/reviews/showrev.php?id=34135" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">work</a> was, in the end, struck down by the Supreme Court.The Court v. the PeopleBy the turn of the twentieth century, the outcry against “judge-made law,” the willful manipulation of the Constitution to shore up endangered bastions of wealth and power, had grown ever stronger. Some more recent <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/jspcth1983&div=10&id=&page=" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">scholars</a> have found the court’s rulings then not as one-sided as its reputation suggests, but contemporaries certainly didn’t share those doubts.When the Supreme Court overturned an income tax law, a dissenting justice vividly described its decision as a “<a href="https://library.cqpress.com/scc/document.php?id=gct5v1-1179-57456-2234295&v=0a5895f114fcafe0" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">surrender to the moneyed classes</a>.“Similarly, in 1905, Supreme Court Justice Oliver Wendell Holmes broke with his colleagues when they ruled in the Lochner case, <a href="https://www.cambridge.org/core/journals/law-and-history-review/article/abs/protective-labor-legislation-in-the-courts-substantive-due-process-and-fairness-in-the-progressive-era/63F8365D54DA3C2F926F381FD857950D" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">noting that</a> “the 14th amendment does not enact Mr. Herbert Spencer’s Social Statics.” (Spencer was then the world’s foremost proponent of social darwinism and a staunch defender of free-market economics.) A few years later, future Supreme Court Justice Louis Brandeis cuttingly <a href="https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-73-2-Friedman.pdf" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">noted that</a> “to destroy a business is illegal. It not illegal to lower the standard of the working man’s living or to destroy the union which aims to raise or maintain such a standard. A business is property… A man’s standard of living is not property.”Other voices were also being raised in alarm over the coming of a “judicial oligarchy.” Politicians from former president Theodore Roosevelt to perennial Socialist Party presidential candidate Eugene Debs began denouncing “the rogue court.” When he ran again for president in 1912 as the candidate of the Bull Moose, or Progressive Party, Roosevelt declared that the people are “the ultimate makers of their own Constitution” and swore that Americans would not surrender that prerogative to “any set of men, no matter what their positions or their character.” His rival for the party’s nomination, Wisconsin senator Robert LaFollette, typically offered this observation: “Evidence abounds that… the courts pervert justice almost as often as they administer it.” There existed, he concluded, “<a href="https://press.princeton.edu/books/hardcover/9780691634036/a-muted-fury" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">one law for the rich and another for the poor.</a>“Calls for reform back then should sound eerily familiar today. Populist presidential candidate James Weaver urged that Supreme Court justices be elected and lifetime terms abolished. A bill introduced in Congress proposed that a majority of both houses should have the power to recall and remove a judge from office. Another demanded a super-majority of justices — seven out of nine — be required to invalidate a law. Roosevelt argued that there should be popular referenda on the court’s decisions. The Socialist Party demanded that the Supreme Court’s power to review the constitutionality of federal laws be done away with and all judges elected for <a href="https://press.princeton.edu/books/hardcover/9780691634036/a-muted-fury" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">short terms</a>.Still, the court prevailed until the Great Depression of the 1930s. President Franklin Roosevelt, however, passed new laws regulating business and finance, as well as a national minimum wage and maximum-work-hours statute, while legalizing the right to join a union. Together with yet another uprising of beleaguered industrial workers in those years, this would shift the balance of power. Even then, the Supreme Court justices at first succeeded in nullifying key pieces of Roosevelt’s economic recovery legislation, while Democrats <a href="https://www.history.com/news/franklin-roosevelt-tried-packing-supreme-court" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">at the time</a>, (as <a href="https://thehill.com/homenews/house/3564588-house-democrats-offer-bill-to-add-four-seats-to-supreme-court/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">today</a>), talked about adding new justices to the court.In the end, however, the national trauma of capitalism seemingly on the verge of collapse, the weight of changing public opinion, and the aging out of some of the justices ended the dominion of the Lochner court.“The Race Question”During the long years of opposition to that court, little of the criticism touched on “the race question.” How to account for that? From the Gilded Age of the late nineteenth century to Roosevelt’s New Deal, Americans were preoccupied with “the labor question” (as it was then called) — that is, how to deal with the great social divide between capital and labor opened up by industrialization.The silence when it came to the no less striking racial bias of the Supreme Court speaks to an ubiquitous national blindness on matters of racial justice then. Of course, segregation was settled law at the time. In the words of a justice deciding the Plessy case, <a href="https://library.cqpress.com/scc/document.php?id=gct5v1-1179-57456-2234295&v=0a5895f114fcafe0" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">white supremacy</a> was “in the nature of things.” (<a href="https://thehill.com/homenews/state-watch/3499877-6-in-10-trump-voters-agree-with-core-tenet-of-great-replacement-theory-survey/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">Sound familiar</a>?) So, too, the relative weakness of mass movements addressing the racial dilemma during the Lochner court years was striking, making the issue easier to ignore.The Supreme Court’s original responsibility was, as James Madison once put it, to guard against the “tyranny of the majority.” African-Americans were, of course, a long-tyrannized minority.However, on that subject the Lochner court went AWOL, even by its own standards. If the “minority” in question happened to be a corporation, it, of course, needed the court’s protection. Not so fortunate were millions of ex-slaves and their descendants.Eventually, a different Supreme Court, the one overseen by Chief Justice Earl Warren, faced the “race question.” Indeed, it expanded civil rights and civil liberties generally by making racial segregation illegal in public schools, increasing the constitutional rights of defendants, outlawing state-sponsored school prayer, and creating the groundwork to legalize abortion.Times had changed. Civil rights for African-Americans (about which Roosevelt’s New Deal did little) became an increasing concern during and after World War II. Growing civil rights organizations and a then-powerful labor movement began to press the issue ever harder. By the time the Warren Court made its celebrated 1954 Brown v. Board of Education decision, race had become a “question,” just as the “labor question” had in the New Deal era.Before then, pressure alone, however muscular, had not produced a shift in the high court’s approach as the Lochner court so amply demonstrated. Segregation had, after all, become entrenched as a way of life endorsed by local white legislatures. Southern commercial interests in particular — plantation owners, textile manufacturers, and raw material producers — depended on it.Beyond those circles, however, segregation had become increasingly repellent in a culture ever more infused with the multi-ethnic sympathies and cosmopolitanism of the New Deal era. In beginning the dismantlement of legal segregation, the Warren court would not, in fact, threaten the country’s central institutions of power and wealth which, if anything, had by then come to find American-style apartheid inimical to their interests.Justice is supposed to be nonpolitical, but that has never been the case. What was once termed the “counter-majoritarian” mission of the court — to discipline “passionate majorities” — produced great wrongs in the era of the gatling-gun injunction as had also been true earlier. The Warren court, however, was the exception. It achieved the very opposite results, even as it relied on the same constitutional logic (the civil rights enshrined in the 14th amendment) the Lochner court had in thwarting mass movements for justice and equality.Today’s Supreme Court is more than Donald Trump’s creation. It’s the result of a long counter-revolution against the political, economic, and cultural reforms of the New Deal, as well as of the labor, civil rights, women’s, and gay liberation movements of the last century.Sadly, those are the “passionate majorities” the court now seems all too determined to squelch and in that it stands in a long American tradition, though one most of us had forgotten in the Warren years. One thing should be obvious by now: if the country is ever to live up to its democratic and egalitarian promise, the tyranny of the Supreme Court must be ended.<div>=</div><div><a href="https://journals.openedition.org/transatlantica/6473#ftn45">https://journals.openedition.org/transatlantica/6473#ftn45</a></div><div>
</div><div>The </div><h1 id="docTitle" class="directionltr" style="margin: 1.35em 0px 0px; padding: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: 1.2; direction: ltr; background-color: rgb(255, 255, 255);">United States Supreme Court and Business Elites: Gilded Age Origins of Modern American Liberalism<a class="footnotecall" id="bodyftn1" href="https://journals.openedition.org/transatlantica/6473#ftn1" style="text-decoration-line: none; overflow-wrap: break-word; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: normal; padding-left: 0.3em; vertical-align: top;">1</a></h1><div id="docContributors" style="margin: 2em 0px 0px; padding: 0px; background-color: rgb(255, 255, 255);"><div id="docAuthor" style="margin: 0px; padding: 0px;">Paul Kens</div></div><div id="doi" style="margin: 1em 0px 0px; padding: 0px; background-color: rgb(255, 255, 255);"><a href="https://doi.org/10.4000/transatlantica.6473" style="text-decoration-line: none; overflow-wrap: break-word;">https://doi.org/10.4000/transatlantica.6473</a></div><div>
</div><div>...</div><h1 class="texte" style="margin: 0.923em 0px 0.461em; padding: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: 1.2; background-color: rgb(255, 255, 255);"><a href="https://journals.openedition.org/transatlantica/6473#tocfrom1n6" id="tocto1n6" style="text-decoration-line: none; overflow-wrap: break-word;">Reaction and Response to Munn</a></h1>56For railroad leaders, who placed much more faith in appellate courts than in elected legislatures, the majority decision inflicted a brutal blow. They had dreamed that the decision would establish an unequivocal right to be free of government regulation. More realistically, they hoped it would produce a doctrine that the reasonableness of government rates and regulations was inherently a judicial question and that courts would presume that rate regulation was an unconstitutional form of confiscation. Instead, the Supreme Court’s decision in Munn reaffirmed the right of state legislatures to regulate.<div class="textandnotes" style="margin: 0px; padding: 0px; position: relative; text-align: justify; background-color: rgb(255, 255, 255);"><ul class="sidenotes" style="margin: 0px; padding: 0px; list-style: square; text-align: left; position: absolute; top: 0px; right: -12.5em; width: 11em; overflow: visible;"><li style="margin: 0.2em 0px 1.44em; padding: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: 1.44; list-style-type: none; background: none; text-align: left;">43 . R. Harris to Schuylar Colfax, March 12, 1877. R. Harris out-letters, president’s office, CB& Q, N <a href="https://journals.openedition.org/transatlantica/6473#ftn43" style="text-decoration-line: none; overflow-wrap: break-word;">(...)</a></li></ul>57John Jewett, one of the attorneys for Munn and Scott, warned that the opinion “has sent a chill of apprehension through the very heart of the business enterprise of the nation.” (Jewett, 1975, 662) Robert Harris, president of the Chicago, Burlington, and Quincy Railroad, also detected a dire omen in Munn. Ignoring the fact that the nation was still in the throngs of an economic depression that began in 1873 and that the depression was caused in part by overexpansion of railroads and other railroad practices, he blamed the Court’s decision for the drop in value of railroad stock. Harris predicted that the Court “has turned over this vast property to the whim of a legislative committee.” “If this is good law,” he complained, “then corporate property is the only property that has no protection [from legislative interference].”<a class="footnotecall" id="bodyftn43" href="https://journals.openedition.org/transatlantica/6473#ftn43" style="text-decoration-line: none; overflow-wrap: break-word; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: bold; font-stretch: normal; line-height: normal; padding-left: 0.3em; vertical-align: top;">43</a></div>58Reformers, as would be expected, found comfort in the decision. Two years later delegates to the California constitutional convention pointed to Munn as proof that they had the authority to regulate railroad rates and fares. (Debates, 1870, I-377) And, even a decade later, a reform minded governor of Minnesota reminded the legislature that while the expediency of railroad regulation might be doubted, the right of the state to regulate was no longer in question. (Cortner, 1993, 22-23) Editors of the Minneapolis Tribune were even more confident. “The power to regulate roads has been confirmed by the United States Supreme Court in the Granger Cases, there is no turning back and the ground will never be retraced.” (Cortner, 1993, 38)59The second part of the Tribune’s observation would prove to be wrong. By the mid 1890s the Court would reject Munn and replace it with a doctrine of substantive due process that took inspiration from Field’s dissent. This new doctrine would give much of what railroad and corporate leaders had wanted. Under it all state regulation of rates would be suspected of being a confiscation of property that violated the Fourteenth Amendment. The Court would thus become the final arbitrator of the validity of rates. Reflecting a distrust of the democratic process, the Court would start from a presumption that rate regulation violated individual liberty. It would also develop a narrow definition of the police powers of the state—that range of legitimate state authority to interfere with liberty. (Ely 1995, 57-127) Because of its emphasis on entrepreneurial liberty this new doctrine is often referred to as laissez-faire constitutionalism.<div class="textandnotes" style="margin: 0px; padding: 0px; position: relative; text-align: justify;"><ul class="sidenotes" style="background-color: rgb(255, 255, 255); margin: 0px; padding: 0px; list-style: square; text-align: left; position: absolute; top: 0px; right: -12.5em; width: 11em; overflow: visible;"><li style="margin: 0.2em 0px 1.44em; padding: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: 1.44; list-style-type: none; background: none; text-align: left;">44 . See, New State Ice Company v. Liebmann, 285 U.S. 262 (1932) ; Nebbia v. New York, 291 U.S. 502 (1 <a href="https://journals.openedition.org/transatlantica/6473#ftn44" style="text-decoration-line: none; overflow-wrap: break-word;">(...)</a></li></ul>60Although laissez-faire constitutionalism did not become entrenched until more than a decade afterward, constitutional history tends to treat Munn as a steppingstone in the development of that doctrine. Interest in the case tends to be directed toward Waite’s “affected with public interest” formula.<a class="footnotecall" id="bodyftn44" href="https://journals.openedition.org/transatlantica/6473#ftn44" style="background-color: rgb(255, 255, 255); text-decoration-line: none; overflow-wrap: break-word; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: bold; font-stretch: normal; line-height: normal; padding-left: 0.3em; vertical-align: top;">44</a> Modern treatment of the case also highlights Waite’s concession that some regulation may violate due process, and Field’s dissent that all legislation should be presumed to do so. Chief Justice Waite’s biographer points out that instead of being remembered as a victory for public regulation, Munn is thus more often viewed as the ideological forerunner to an era that emphasized economic liberty and saw the Court as a bulwark protecting business against interference of state regulation. (Magrath, 1963, 192-93) From this perspective it is common to conclude that the Court quickly moved away from the Munn doctrine. It is also commonly, and mistakenly, believed that Munn immediately came under attack from attorneys for railroad, industrial, and financial interests.</div><div class="textandnotes" style="margin: 0px; padding: 0px; position: relative; text-align: justify;"><ul class="sidenotes" style="background-color: rgb(255, 255, 255); margin: 0px; padding: 0px; list-style: square; text-align: left; position: absolute; top: 0px; right: -12.5em; width: 11em; overflow: visible;"><li style="margin: 0.2em 0px 1.44em; padding: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: 1.44; list-style-type: none; background: none; text-align: left;">45 . Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). There is considerable contr <a href="https://journals.openedition.org/transatlantica/6473#ftn45" style="text-decoration-line: none; overflow-wrap: break-word;">(...)</a></li></ul>61It was not until after four new justices joined the Court in the early 1880s, however, that attorneys for the corporate and business elite increased their efforts. They achieved some measure of success in Santa Clara County v. Southern Pacific Railroad (1886), which came to stand for the proposition that corporations are persons for purposes of the Fourteenth Amendment.<a class="footnotecall" id="bodyftn45" href="https://journals.openedition.org/transatlantica/6473#ftn45" style="text-decoration-line: none; overflow-wrap: break-word; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: bold; font-stretch: normal; line-height: normal; padding-left: 0.3em; vertical-align: top;">45</a> Even then they failed to obtain the kind of constitutional protections from government regulation that their clients wanted.</div>62For more than a decade the Court continued to refuse to equate regulation with confiscation. It refused to interpret the Fourteenth Amendment as providing a general restriction on government regulation of business. In cases challenging the validity of regulations it continued to rely on the antebellum legal tradition that emphasized the right of the community as a limit on property. The ideas and theories that corporation and business attorneys pressed were gradually becoming part of constitutional discourse, but their elevation to constitutional doctrine would have to wait until after the Waite era. (Kens 2010, 110-25)<div class="textandnotes" style="margin: 0px; padding: 0px; position: relative; text-align: justify; background-color: rgb(255, 255, 255);"><ul class="sidenotes" style="margin: 0px; padding: 0px; list-style: square; text-align: left; position: absolute; top: 0px; right: -12.5em; width: 11em; overflow: visible;"><li style="margin: 0.2em 0px 1.44em; padding: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: 1.44; list-style-type: none; background: none; text-align: left;">46 . Chicago, Milwaukee, and St. Paul Railway Company v. Minnesota, 134 U.S. 418 (1890) ; This stateme <a href="https://journals.openedition.org/transatlantica/6473#ftn46" style="text-decoration-line: none; overflow-wrap: break-word;">(...)</a></li><li style="margin: 0.2em 0px 1.44em; padding: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: 1.44; list-style-type: none; background: none; text-align: left;">47 . Smyth v. Ames, 169 U.S. 466 (1898).</li></ul>63It was not until after Chief Justice Waite died and was replaced by Melville W. Fuller in 1888 that the Court subtly revised Munn’s presumption of the validity of state legislation in the Minnesota Milk Rate Case of 1890. Writing for the majority, Justice Samuel Blatchford said, “The question of the reasonableness of a rate charged for transportation by a railroad company is eminently a question for judicial investigation.”<a class="footnotecall" id="bodyftn46" href="https://journals.openedition.org/transatlantica/6473#ftn46" style="text-decoration-line: none; overflow-wrap: break-word; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: bold; font-stretch: normal; line-height: normal; padding-left: 0.3em; vertical-align: top;">46</a> Then, in the 1898 case Smyth v. Ames, it added force to the idea that regulation was a form of confiscation when it ruled that the due process clause guaranteed that businesses receive a fair return on the value of the property it employs for the public convenience.<a class="footnotecall" id="bodyftn47" href="https://journals.openedition.org/transatlantica/6473#ftn47" style="text-decoration-line: none; overflow-wrap: break-word; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: bold; font-stretch: normal; line-height: normal; padding-left: 0.3em; vertical-align: top;">47</a> At the same time the Court began to hone a theory called “liberty of contract” that subjected all regulation, not just ratemaking, to the challenge that it violated the due process clause of the Fourteenth Amendment. (Ely, 1995, 83-110)</div><h1 class="texte" style="margin: 0.923em 0px 0.461em; padding: 0px; font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; line-height: 1.2; background-color: rgb(255, 255, 255);"><a href="https://journals.openedition.org/transatlantica/6473#tocfrom1n7" id="tocto1n7" style="text-decoration-line: none; overflow-wrap: break-word;">Conclusion</a></h1>64The modern narrative of constitutional history tends to treat Munn as a steppingstone in the evolution of laissez-faire constitutionalism. But analyzing Munn in its own context puts a different spin on the majority decision. It demonstrates that the Munn majority, while concerned about the American constitutional tradition relating to liberty, was even more influenced by another constitutional tradition that runs equally deep. It was a tradition that emphasized popular sovereignty and that placed property rights in the context of balancing individual freedom and the needs of a democratically governed society. From this perspective Munn, instead of being a steppingstone for development of a doctrine that emphasized economic liberty, might better be described as a last gasp for the antebellum legal tradition that emphasized rights of the community as a limit on property.65Last gasp may be something of an exaggeration, however. From the perspective of long-term history it is true that the Supreme Court eventually did move away from Waite’s reasoning and rejected the constitutional tradition based on popular sovereignty for a doctrine that idealized an absolutist right of property. Instead of balancing property right against right of the community it used a model of individual right versus government power, and it narrowly defined the reach of that power. But the demise of the Court’s respect for the rights of the community was more of a drawn out sigh than a sudden gasp.<div>=</div><div>mention 1866?</div><div><a href="https://www.jstor.org/stable/10.5250/amerindiquar.39.3.0243">https://www.jstor.org/stable/10.5250/amerindiquar.39.3.0243</a></div><div>
</div><div><turnaway-pharos-heading no-margin="" class="title-font" level="1" preset="5" data-pharos-component="PharosHeading" style="contain: layout; display: block; box-sizing: inherit; margin-bottom: var(--pharos-spacing-one-quarter-x); letter-spacing: -0.32px; background-color: rgb(255, 255, 255);"><h1 class="heading" style="font-weight: var(--pharos-font-weight-regular); margin-bottom: 0px; margin-top: 0px; text-rendering: optimizelegibility; -webkit-font-smoothing: antialiased; letter-spacing: calc(var(--pharos-type-scale-8)*-0.01); line-height: var(--pharos-line-height-xlarge);">The Corporation and the Tribe</h1></turnaway-pharos-heading><div class="author-font" style="box-sizing: inherit; margin-top: var(--pharos-spacing-one-and-a-half-x); margin-right: 0px; margin-bottom: var(--pharos-spacing-one-and-a-half-x); margin-left: 0px; padding: 0px; font-weight: var(--pharos-font-weight-bold); letter-spacing: -0.32px; background-color: rgb(255, 255, 255);">Joanne Barker</div><div class="turn-away-contentsummary row" style="box-sizing: inherit; margin: 0px -0.9375rem; padding: 0px; width: auto; display: flex; flex-flow: row wrap; max-width: none; letter-spacing: -0.32px; background-color: rgb(255, 255, 255);"><div class="columns" style="box-sizing: inherit; margin: 0px; padding: 0px 0.9375rem; float: left; width: 186.663px; position: relative; flex: 1 1 0px; min-width: 0px;"><div style="box-sizing: inherit; margin: 0px; padding: 0px;">American Indian Quarterly</div><div style="box-sizing: inherit; margin: 0px; padding: 0px;"><turnaway-pharos-link href="/stable/10.5250/amerindiquar.39.issue-3" data-pharos-component="PharosLink" style="contain: layout; box-sizing: inherit;"><a id="link-element" class=" " href="https://www.jstor.org/stable/10.5250/amerindiquar.39.issue-3" style="text-rendering: optimizelegibility; -webkit-font-smoothing: antialiased; font-weight: var(--pharos-font-weight-regular); letter-spacing: inherit; line-height: inherit; text-decoration-color: var(--pharos-color-interactive-secondary); transition-duration: 0.2s; transition-property: color, text-decoration-color, -webkit-text-decoration-color; transition-timing-function: ease-in-out;"><slot>Vol. 39, No. 3 (Summer 2015)</slot></a></turnaway-pharos-link>, pp. 243-270 (28 pages)</div><div style="box-sizing: inherit; margin: 0px; padding: 0px;">Published By: University of Nebraska Press</div></div><div class="columns" style="box-sizing: inherit; margin: 0px; padding: 0px 0.9375rem; float: right; width: 186.663px; position: relative; flex: 1 1 0px; min-width: 0px;"><div class="cover-image show-for-xlarge-up" style="box-sizing: inherit; margin-top: 0px; margin-right: var(--pharos-spacing-one-and-a-half-x); margin-bottom: 0px; margin-left: 0px; padding: 0px; display: inherit !important; flex: 0 0 115px;">
</div></div></div><div class="turn-away-contentsummary" style="box-sizing: inherit; margin-top: 0px; margin-right: 0px; margin-left: 0px; padding: 0px; letter-spacing: -0.32px; background-color: rgb(255, 255, 255); margin-bottom: var(--pharos-spacing-2-x) !important;"><turnaway-pharos-link href="https://doi.org/10.5250/amerindiquar.39.3.0243" data-qa="crossref-doi" class="doi" target="blank" title="This link opens in a new window" rel="noopener noreferrer" data-pharos-component="PharosLink" style="contain: layout; box-sizing: inherit;"><a id="link-element" class=" " href="https://doi.org/10.5250/amerindiquar.39.3.0243" rel="noopener noreferrer" target="_blank" style="text-rendering: optimizelegibility; -webkit-font-smoothing: antialiased; font-weight: var(--pharos-font-weight-regular); letter-spacing: inherit; line-height: inherit; text-decoration-color: var(--pharos-color-interactive-secondary); transition-duration: 0.2s; transition-property: color, text-decoration-color, -webkit-text-decoration-color; transition-timing-function: ease-in-out;"><slot>https://doi.org/10.5250/amerindiquar.39.3.0243</slot></a></turnaway-pharos-link><div data-qa="stable-url" class="stable_url" style="box-sizing: inherit; margin: 0px; padding: 0px; word-break: break-all;">https://www.jstor.org/stable/10.5250/amerindiquar.39.3.0243</div></div>
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