Progressivism and States’ Rights: Constitutional Dialogue between the States and Federal Courts on Minimum Wages and Liberty of Contract

Abstract

Consistent with recent scholarship showing the importance of nonjudicial actors in constitutional development, this article uncovers stage legislative responses to the Supreme Court's liberty-of-contract cases Lochner v. New York (1905) and especially Adkins v. Children's Hospital (1923). This history shows that, like many political figures of the time, the states first interpreted Lochner narrowly and then, in the wake of Adkins, served as a source of resistance in trying to maintain their police powers. The states' fight against liberty of contract offers two instructive lessons for contemporary politics. First, it demonstrates that, at least before the New Deal, state actors participated in extrajudicial constitutional interpretation and resistance, attempting to shape constitutional understanding. Second, in showing how this state interpretation was deployed on behalf of a progressive cause, it complicates the commonly understood association of states' rights federalism with political and racial conservatism. Are we to understand, then, that the states are no longer sovereign as to their own territory and their own internal affairs? Are they to the government at Washington only as wards to a city? (Lorenzo Lewelling, Populist Governor of Kansas, criticizing the Supreme Court's restrictions on state railroad commissions 1)