The Food and Drug Administration is about to issue a fatwa against trans-fats while Obamacare is collapsing under its own weight. This connects the acorn and the oak of the progressive welfare state — the development of a federal “police power.” The power to regulate the “safety, health, welfare, and morals” of the people, traditionally reserved to the states, became a national power.
Today’s liberals trace their origins to the early 20th-century progressives, and nominal Republican Theodore Roosevelt was their first leader. TR championed such progressive measures as the Meat Inspection Act and the Pure Food and Drugs Act of 1906.
Historians have shown that a great deal of progressive legislation that claimed to protect “the people” from “the interests” was in fact supported by “the interests” themselves. Much of the pure-food agitation arose from attempts to eliminate competition from food substitutes, as when dairy farmers tried to drive oleomargarine from the market. Sugar producers condemned glucose, an artificial sweetener developed in Napoleonic France. Straight-whiskey distillers wanted relief from cheaper blended whiskeys. Cream-of-tartar producers sought to demonize acid-based or alum baking powders. As recounted by business-ethics professor Donna Wood, the Royal Baking Company, for example, “denounced alum as a dangerous drug, pictured phosphate as being made from old bones covered with vitriol, and appealed to mothers to protect their families’ health by using ‘pure cream of tartar baking powder,’” and “falsely reported that an entire Pennsylvania family had died from eating bread made with a competitor’s baking powder.” The balance of these various interests, along with those who doubted the public purpose or constitutionality of federal pure-food legislation, stymied congressional efforts.
Muckraking journalists helped to sensationalize the issue. The most outstanding example of this was Upton Sinclair’s novel The Jungle. Although Sinclair’s goal was to call attention to the exploitative labor conditions in the meatpacking industry, the public focused on its gruesome details of adulterated meat. Roosevelt took an active interest in getting a meat-inspection act passed; he adroitly used the book’s sensationalism to overcome constitutional objections in Congress and to construct a national police power.
When a Department of Agriculture inspection committee reported that Sinclair’s account was largely baseless, the president sent two “secret” investigators of his own. Probably because they had never seen a slaughterhouse before, they largely affirmed Sinclair’s horrific account, and Roosevelt used the threat of its publication to get the packers and their congressional allies to come to terms. Congress hammered out a compromise bill as to who would pay for the inspections, the dating of canned meat, the civil-service status of the inspectors, and judicial review, and passed a meat-inspection bill and Pure Food and Drugs bill on the last day of June 1906. Senator Albert Beveridge, an Indiana Republican and leading progressive proponent of the act, hailed it as “the most pronounced extension of federal power in every direction ever enacted.”
Conservatives a century ago, as today, hoped that the Supreme Court would check the excesses of the other two federal branches. But the Court unanimously upheld the Pure Food and Drugs Act in 1911. Justice Joseph McKenna emphasized that the inherently harmful nature of the prohibited products obscured the police-power boundary. “We are dealing, it must be remembered, with illicit articles . . . outlaws of commerce,” he called them. McKenna highlighted the genuine public or consumer-welfare impetus and benefits from these acts but overlooked those that betrayed special-interest or “class legislation.”
In the next significant step in the development of a federal police power, the Mann “White Slave Traffic” Act, muckraking hysteria provided the preponderant impetus, with the new motion-picture industry augmenting the print-media sensationalism. The press and federal officials, particularly U.S. Attorney Edwin Sims in Chicago, claimed that a vast “white slave trust” stalked the country, when in fact, as David Langum noted in his book Crossing over the Line, there was little coerced prostitution at all.
The bill’s sponsor, James R. Mann, claimed that the white-slave traffic, “while not so extensive, is much more horrible than any black-slave traffic ever was.” Widespread revulsion toward gambling had silenced constitutional scruples a decade earlier; now the universal abhorrence of prostitution had a similar impact. New York congressman William Sulzer added, “I have no sympathy with the quibbling in regard to the constitutionality of the provisions of this bill. In this frightful matter I shall not allow technicalities to cloud my sense of immediate duty. The courts must take the responsibility for its constitutionality.” President Taft signed the act in June 1910.