Rethinking the court’s property-rights jurisprudence in the Progressive Era

Andrew Hamm

The Progressive Party’s presidential candidate in 1924, Robert La Follette, once called the Supreme Court “the one formidable obstacle which must be overcome before anything can be accomplished.” 

Echoing La Follette, President Theodore Roosevelt charged the court with placing “obstacles in the path of needed social reform.” A similar narrative of Supreme Court hostility to reform attempts in the opening decades of the 20th century continues to this day, James Ely, professor emeritus at Vanderbilt University, explained Wednesday in a lecture before the Supreme Court Historical Society. 

Ely presented a contrary thesis: He posited that the Progressive-Era court largely accommodated social and political reforms, diminished protections previously afforded to property owners and opened the door for later New Deal jurisprudence.

Ely built his argument by reviewing major cases affecting property rights in areas such as tenement reform, land-use regulation, building-height requirements, city zoning, rent control and private contracts.

Ely began his analysis with tenement reform. The New York Tenement House Act of 1901 required new apartment buildings to include enhanced fire protection and sanitation features. Some landowners, sued for not complying with the act, challenged part of the law requiring the installation of new toilets as a “taking” without compensation. In a unanimous decision in 1906, the court upheld the law. According to Ely, this decision ushered in further legislation requiring improvements in the light, ventilation and sanitation of slum housing.

In the area of land-use regulation, Ely explained, 19th-century jurisprudence followed the “doctrine of nuisance,” a standard that protected property owners from almost all governmental interference. In the early 20th century, Los Angeles banned brickyards in an area in which J.C. Hadacheck already owned and operated one. Convicted of a misdemeanor for violating the ordinance, Hadacheck charged that he had been deprived of property in violation of the 14th Amendment. In Ely’s words, “the plea fell on deaf ears.” In Hadacheck v. Sebastian, in 1915, the court found no constitutional violation – a significant expansion of the scope of the police power.

Massachusetts limited the height of buildings in Boston, a law the state justified as necessary for the health and safety of city residents. The statute mandated lower height limits for buildings in residential areas than those in commercial districts. In the 1909 case Welch v. Swasey, a unanimous court rejected a constitutional challenge brought by Francis Welch, who owned property in an area with a lower height restriction, holding that the height limits were reasonable and still allowed Welch to use his property. In the words of renowned Progressive Era scholar Frank Goodnow, whom Ely quoted, the court was “emphatic as to the right of the state to regulate the use of land.”

Ely noted, however, that the court drew the line at laws separating residential areas on the basis of race. In Buchanan v. Warley, the court condemned a Louisville segregation ordinance that prohibited an individual from occupying a house on a block in which a majority of the residents were of a different race. Louisville had tried to justify the measure as necessary to promote racial harmony and to preserve the home values of whites.

In Ely’s description, as the era advanced, progressive thinkers began to find ad-hoc reform laws “inadequate.” Looking for a more far-reaching legislative approach, Ely explained, progressives found inspiration in imperial German municipal codes, which seemed to promise “scientific management” to replace the “haphazard development” of cities in the past. In 1916, New York established zoning laws for New York City, a practice that other states copied. 

As Ely noted, state courts initially treated such laws skeptically, finding that they infringed on the rights of property owners and exceeded the police power of the state to issue health and safety measures. The Supreme Court, however, would facilitate the spread of such laws after its 1926 ruling in Euclid v. Ambler, which upheld municipal zoning laws in Euclid, Ohio.

Ely next focused on rent control, which he described as a “dramatic intervention” into a housing market that had previously been controlled through bargaining and leases. World War I largely brought building construction to a halt, thereby provoking a housing shortage in cities across the country. Naturally, landlords increased rents. In response to fears of rent profiteering and widespread evictions, Congress passed the Ball Rent Act of 1919, which empowered a commission to determine and set fair and reasonable rents in the District of Columbia for a two-year period.

Landlords decried these rent control provisions as a “taking” and an interference with contractual obligations, an argument that divided the lower courts. Writing for a five-justice majority in Block v. Hirsch in 1921, Justice Oliver Wendell Holmes upheld the statute as a valid emergency measure. 

Dissenting, Justice Joseph McKenna argued that the law ran afoul of constitutional protections for property and contract. Representing pre-Progressive Era thought, Ely explained, McKenna claimed that the security of property, next to personal security, was “of the essence” of liberty – even in emergencies. Unimpressed by the law’s two-year limitation, McKenna worried that the time period could be renewed or extended.

Demonstrating McKenna’s prescience, Ely continued, Congress extended the rent controls on the basis that the housing emergency was continuing. In Chastleton Corp. v. Sinclair in 1924, the Supreme Court, responding to landlords’ arguments that the emergency had passed, signaled limits to its acceptance of the emergency-based rationale for the legislation. As Ely explained Holmes’ opinion for the court, it was “public knowledge” that the need for housing had diminished; the court could not ignore factual mistakes if the validity of the law depended on the truth of its purported justification. Even given this limit, Ely asserted, these rent-control cases left as their legacy a significantly weakened constitutional protection of property.

Ely called the contract clause, his final subject, a “constitutional orphan,” because the Supreme Court has not invoked the clause since the mid-1970s – a contrast, Ely explained, from its frequent appearance in 19th-century litigation. In Ely’s assessment, new attitudes to contracts had begun to emerge by the early 20th century. Progressive thinkers saw contracts as the products of societal forces rather than individual choices; as a result, the thinking went, contracts could be abolished in the service of broader societal aims.

Two private parties on a navigable creek in South Carolina made a contractual agreement not to obstruct the water. Later, the state contracted with one of the parties to build a dam across the river. In Manigault v. Springs, 1905, the court held that the contract clause of the Constitution did not prevent the state from exercising its power over its navigable waters, even at the expense of existing private contracts. Ely called this a “watershed” in the treatment of private contracts.

According to Ely, progressives advocated a strong police power that would enable states to promote public welfare even at the expense of certain liberties – in Ely’s description, making the public welfare into a “talisman” that could override provisions in the Constitution. As former Attorney General George Wickersham said in 1914, the “pressure was great to compel legislation that transcends provisions of the Constitution,” and “any limitation by the courts was received by impatience and attacks on the judges.” However, as the cases Ely cited demonstrate, the court was in fact broadly receptive to reforms and allowed progressives to “devour” the constitutional protections of property and contract. In times of declared “emergency,” the police power was nearly boundless. Repeating what legal scholar Charles Warren observed in 1913, Ely contended that the “supposed tendency” of a reactionary court to rule against economic and social legislation was “exaggerated.”

In concluding, Ely touched on the reasons behind the misplaced hostility directed towards the court by progressives, then and now. He noted that the court did overturn a “handful” of workplace regulations and child-labor laws, which likely provoked the lasting ire. However, according to Ely, these decisions turned on the commerce clause, not on protection for property interests, and the court upheld other significant workplace health and welfare regulations during the same period. Ely ended the lecture by expressing the hope that historians might continue his efforts to re-evaluate Progressive-Era Supreme Court jurisprudence by exploring these theories in more detail.

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