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Constitutionalism and Social Spending: Pennsylvania's Old Age Pensions in the 1920s

Published online by Cambridge University Press:  16 December 2008

Susan Sterett
Susan Sterett
Affiliation:
State University of New York at Binghamton
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Extract

Rather than studying only what appellate courts do, scholars of law and society have been pointing out that the interpretation of law is an enterprise many engage in—e.g., lawyers, administrative officials, and the lay public, as well as courts. Recent scholarship has broadened the analysis of constitutional law in a way that is not Supreme Court centered. Scholars have focused on constitutionalism as the idea that words written down limit and shape political practice. For example, Michael Kammen's work shows the continuing and repetitive celebrations of the Constitution in American life, celebrations that have taken the federal constitution as “a machine that would go of itself” and as a sacred text, often forgetting how much it has been remade through reinterpretation. This focus on constitutionalism rather than on appellate court decisions leads to a broader understanding of constitutions in a polity, so that scholars analyze rights claims in addition to examining the rights that courts have said people have. This effort emphasizes the meaningful elements of law, since the definition of constitutionalism focuses on what people think they should do, or on what they have a right to do. It leads to scholarship that points out the penetration of legal language, particularly claims of rights, into American culture. With this approach, one reason to analyze elite statements of law is that they state rights in ways that become part of general political consciousness.

Type
Research Notes
Information
Studies in American Political Development , Volume 4 , Spring 1990 , pp. 230 - 247
Copyright
Copyright © Cambridge University Press 1990

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References

I am grateful to Lucy Salyer, Theda Skocpol, Stephen Skowronek, Jack Tweedie, Jeremy Waldron, and a reviewer for comments on earlier drafts of this note. A SUNY United University Professions New Faculty Development Award provided some support for the research.

1. Kammen, Michael, A Machine That Would Go of Itself (Ithaca, N.Y.: Cornell University Press, 1986), xvii–xixGoogle Scholar; Harris, William, “Bonding Word and Polity,” American Political Science Review 76 (1982):34–45CrossRefGoogle Scholar. This approach follows Hurst, James Willard, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956)Google Scholar and before that, Karl Llewellyn; see Scheiber, Harry, “Introduction: the Bicentennial and the Rediscovery of Constitutional History,” Journal of American History 74 (1987):667–74CrossRefGoogle Scholar.

2. Brigham, John, “Right, Rage and Remedy: Forms of Law in Political Discourse,” Studies in American Political Development 2 (1988):303–16CrossRefGoogle Scholar; Hartog, Hendrik, “The Constitution of Aspiration and ‘the Rights that Belong to Us All’,” Journal of American History 74 (1987): 1013–34CrossRefGoogle Scholar.

3. Gordon, Robert, “Critical Legal Histories,” Stanford Law Review 36 (1984):121CrossRefGoogle Scholar; Gordon, Robert, “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” in Geison, G., ed., Professions and Professional Ideologies in America (Chapel Hill: University of North Carolina Press, 1986)Google Scholar.

4. See, for example, Kammen, A Machine, chap. 7.

5. Urofsky, Melvyn, “State Courts and Protective Legislation during the Progressive Era: A Reevaluation,” Journal of American History 72 (1985):63–91CrossRefGoogle Scholar.

6. Gates, John B., “Partisan Realignment, Unconstitutional State Policies, and the U.S. Supreme Court, 1837–1964,” American Journal of Political Science 31 (1986):259–81CrossRefGoogle Scholar.

7. Scholarship on interest-group litigation is a notable exception. Tushnet, Mark, The NAACP's Litigation Strategy for Desegregated Education, 1920–1950 (Chapel Hill: University of North Carolina Press, 1986)Google Scholar.

8. Keller, Morton, Affairs of State (Cambridge: Harvard University Press, 1977), 111–14CrossRefGoogle Scholar.

9. Orloff, Ann Shola and Skocpol, Theda, “Why Not Equal Protection? Explaining the Politics of Public Social Spending in Britain, 1900–1911, and the United States, 1880s–1920,” American Sociological Review 49 (1984):726–50CrossRefGoogle Scholar. See also Orloff, Ann Shola, “The Political Origins of America's Belated Welfare State,” in Weir, Margaret, Orloff, Ann Shola and Skocpol, Theda, eds., The Politics of Social Policy in the United States (Princeton: Princeton University Press, 1988)Google Scholar.

10. For a discussion of the limiting purposes of state constitutional conventions, see Keller, Morton, Affairs of State (Cambridge: Harvard University Press, 1977), 111–12, 319–20CrossRefGoogle Scholar.

11. See, for example, New York's constitutional amendment and the Times' portrayal of the politics around it. The New York Times 10 April 1873, 4; 26 November 1874, 2; 8 June 1874, 4. Similar issues arose on regulatory issues. For a careful analysis of Justice Field's Supreme Court jurisprudence on these issues, see McCurdy, Charles, “Justice Field and the Limits of Laissez-faire Jurisprudence” in Friedman, Lawrence and Scheiber, Harry, eds., American Law and the Constitutional Order (Cambridge: Harvard University Press, 1988)Google Scholar.

12. See, for example, Kelly v. Marshall 69 Pa. 319 (1871); Beach v. Bradstreet 85 Conn. 344 (1912); Mead v. Acton 139 Mass. 341 (1885); Opinion of the Justices 186 Mass. 603 (1905); Bush v. County of Orange 159 N.Y. 212 (1899); State v. Demarest 32 N. J. L. 528 (1866).

13. People ex rel. Kroner v. Abbott 274 Ill. 380 (1916); State ex rel. Heaven v. Ziegenhein 144 Mo. (1898); Denver v. Lynch 92 Colo. 102 (1932).

14. For a summary, see 3 A. L. R. 1224–37 (1917); 7 A. L. R. 1636–57 (1920); 37 A. L. R. 1154–66; 1515–25(1925).

15. States frequently borrowed from each other. Scheiber, Harry, “The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts,” in Law in American History, edited by Fleming, Donald and Bailyn, Bernard (Cambridge: Harvard University Press, 1971), 362Google Scholar.

16. Loan Association v. Topeka 20 Wall. 655 at 663–64 (1874).

17. The federal courts saw the Fourteenth Amendment as giving them the power to evaluate state regulatory and eminent domain questions. Scheiber, “The Road to Munn” 381–82.

18. See, for example, Chicago, M. and St. P. Railway Co. v. Minnesota 134 U.S. 418 (1890); Smyth v. Ames 169 U.S. 466 (1898).

19. 37 A. L. R. 1515 (1925).

20. Tyler, Albert DeForest and Ludes, Francis J., “Taxation,” Corpus Juris 61 (1924), sections 21–23Google Scholar.

21. See sources cited in n. 14.

22. McBain, Howard Lee, “Taxation for a Private Purpose,” Political Science Quarterly 29 (1914):213CrossRefGoogle Scholar.

23. “How to Ensure Old Age,” The Nation 120 (1925):85–86; “Old Age Pensions Coming”, The Nation 124 (1927):493.

24. Fligelman, B., “If You Grow Old in Montana,” The Survey 50 (1923):239–40Google Scholar.

25. Baldwin, F. S., “Findings of the Massachusetts Commission on Old Age Pensions,” American Statistical Association 12 (1910): 18–20Google Scholar.

26. (New York: Macmillan, 1911).

27. Goodnow, Frank, “The Constitutionality of Old Age Pensions,” American Political Science Review 5 (1912):194–212 at 199CrossRefGoogle Scholar.

28. Goodnow, “The Constitutionality of Old Age Pensions,” 200.

29. Lucas Co. v. State 75 Ohio State 114.

30. Goodnow, “The Constitutionality of Old Age Pensions,” 206.

31. Constitution of 1873, Article 3. For a discussion of the provision, see Russ, William A., “The Origin of the Ban on Special Legislation in the Constitution of 1873,” Pennsylvania History 11 (1944):260–75Google Scholar.

32. Report of the Commission on Old Age Pensions (1919), 223.

33. Report of the Pennsylvania Commission on Old Age Pensions (February 1921), 4; and (March 1919), 223.

34. Ibid., (1919), 231.

35. Journal of Proceedings of the Commission on the Constitution vol. 3, 9 November 1920, 400. Proposals for such amendments were common; the American Association for Labor Legislation unsuccessfully urged one in New York in 1915. Letter to the New York Child Labor Committee, in New York State Library collection of NYCLC papers, box 9, folder 4.

36. Report of the Commission on Constitutional Amendment and Revision (1920), article 12, section 1.

37. Lewis, William Draper, “Constitutional Change in Pennsylvania,” American Political Science Review (1921)Google Scholar.

38. “How Will You Vote Today?” Philadelphia Inquirer (8 November 1921), 12.

39. “Pinchot Approves Age Pensions Bill to Camera Chorus,” Philadelphia Inquirer (11 May 1923), 1, 6.

40. For an analysis of the importance of lawyers in the antiprogressive Supreme Court decisions, see Twiss, Benjamin, Lawyers and the Constitution (Princeton: Princeton University Press, 1942)Google Scholar. See also Paul, Arnold, Conservative Crisis and the Rule of Law (Ithaca, N.Y.: Cornell University Press, 1960)Google Scholar.

41. See Urofsky, Melvin, “State Courts and Protective Legislation during the Progressive Era: A Reevaluation,” Journal of American History 72 (1985):63–91CrossRefGoogle Scholar.

42. For a statement of the judge's duty, see Dworkin, Ronald, “Hard Cases” in Taking Rights Seriously (Cambridge: Harvard University Press, 1977)Google Scholar. Legal history has paid much more attention to the question of the settledness of doctrine than has political science. See Gordon, Robert, “Legal Thought and Legal Practice in the Age of American Enterprises, 1870–1920,” in Geison, G., ed., Professions and Professional Ideologies in America (Chapel Hill: University of North Carolina Press, 1983)Google Scholar.

43. Such availability is, of course, one of the factors supporting dissemination of precedent. See Harris, Peter, “Ecology and Culture in the Communication of Precedent among State Supreme Courts, 1870–1970” Law and Society Review 19 (1985): 449–86CrossRefGoogle Scholar.

44. “Brief of Argument,” in Busser v. Snyder, 16–18.

45. “Brief of Argument,” 19–21.

46. Argument of Appellees before the Pennsylvania Supreme Court, 3–5.

47. Argument of Appellees before the Pennsylvania Supreme Court, 8–9.

48. Argument of Appellants before the Pennsylvania Supreme Court, 2; Answered in the “Reply Brief of Appellants” before the Supreme Court, 20–22.

49. “Supreme Court Hears Argument on Pinchot Administrative Code” Harrisburg Telegraph (5 January 1924), 1; “Pinchot Code Is Upheld,” Harrisburg Telegraph (21 January 1924), 1.

50. Argument of Appellees before the Pennsylvania Supreme Court, 36–41.

51. Argument of Appellees before the Pennsylvania Supreme Court, 40–46.

52. “Reply Brief of Appellants,” 26–28.

53. “Supplemental Brief for Appellees,” 79.

54. Llewellyn, Karl, “Remarks on the Theory of Appellate Decisions and the Rules or Canons about How Statutes Are to Be Construed,” Vanderbilt Law Review 3 (1950):395–405Google Scholar. I have borrowed from Howard Becker's discussion of conventions and interpretation in art. Art Worlds (Berkeley: University of California Press, 1982), chap. 2.

55. Critical legal studies, which have different purposes from those pursued here, have attended to the importance on convention in legal reasoning. On critical legal studies, see Kelman, Mark, A Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987)Google Scholar.

56. “Brief of Argument,” 11.

57. Report of the Commission on Old Age Pensions (1925).

58. 37 A. L. R. 1515 at 1518 (1925).

59. Busser v. Snyder 37 A. L. R. 1515 (1925).

60. 37 A. L. R. 1515 at 1523–24 (1925).

61. Bruere, Robert W., “Unconstitutional and Void,” The Survey 53 (1924):69Google Scholar.

62. 37 A. L. R. 1525 (1925). The American Bar Association Journal also published an article on old age pensions speculating about their constitutionality before Busser. Chamberlain, J. P. and Pierson, Sterling, “Old Age Pension Legislation,” American Bar Association Journal 10 (1924): 109–11Google Scholar.

63. Report of the Commission on Old Age Pensions (1927), 11.

64. “Old Age Pensions Beaten in House by 135–64 Vote” Philadelphia Inquirer (12 April 1927), 1, 16.

65. “The Governor Wins,” Philadelphia Evening Bulletin (12 April 1927), 12; “Fisher Gratified at Pension Defeat,” Philadelphia Evening Bulletin (12 April 1927), 1; “Fisher Again Hits Vare Pension Bill,” Philadelphia Evening Bulletin (11 April 1927), 1; “Old Age Pensions Beaten in House by 135–64 Vote,” Philadelphia Inquirer (12 April 1927), 1; “Old Age Pensions Listed for Monday,” Philadelphia Inquirer (8 April 1927), 4.

66. “Old Age Pensions Coming,” The Nation 124 (1927):493.

67. Social spending programs have been the most durable when they have had the continuing attention of a bureaucracy. Heclo, Hugh, Modern Social Politics in Britain and Sweden (Cambridge: Harvard University Press, 1974)Google Scholar; Derthick, Martha, Policymaking for Social Security (Washington, D.C.: Brookings Institution, 1981)Google Scholar. The contingency of achievements in “organized anarchies” that have actors who frequently change is best stated in Cohen, M. D., March, J. G., and Olsen, J. P., “A Garbage Can Model of Organizational Choice,” Administrative Science Quarterly 17 (1972): 1–25CrossRefGoogle Scholar.

68. Such a strategy, of course, builds. The decision against the pensions gave some reason to challenge a state employees' pension fund, according to political gossip. “Politics in Pennsylvania,” by “The Ex-Committeeman,” Harrisburg Telegraph (8 August 1924), 10.

69. Rubinow, Social Insurance, 181.

70. On this issue, see Thomas C. Grey, “Constitutionalism: An Analytic Framework,” in Constitutionalism, J. Roland Pennock and John W. Chapman, eds., 199–200; March, James and Olsen, Johan, “The New Institutionalism: Organizational Factors in Political Life,” American Political Science Review 78 (1984):734–49, 741–42CrossRefGoogle Scholar.

71. Goodnow, Frank, Social Reform and the Constitution (New York: Macmillan, 1911)Google Scholar.

72. On analogies in institutions, see Douglas, Mary, How Institutions Think (Syracuse: Syracuse University Press, 1986), 124Google Scholar.