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.
The Mann Act punished “any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for . . . any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.” The phrase “any other immoral purpose” appeared to include more than large-scale commercialized or coercive prostitution. Almost immediately, the government applied it to consenting fornicators and adulterers, absent any coercion or commercial exchange. In the case of Hoke v. United States (1913), Justice McKenna admitted that “our dual form of government has its perplexities” but concluded that “surely if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls.” In acting against these evils, Congress “may adopt not only means necessary but convenient.”
The Hoke case involved, if not coercive “white slavery,” at least commercial prostitution. The Court subsequently sustained prosecutions of a noncommercial nature. Shortly after Woodrow Wilson took office, Drew Caminetti, the son of his immigration commissioner, was prosecuted for traveling across state lines and engaging in sexual relations with a woman not his wife. The relationship was completely voluntary and not commercial. The Justice Department could hardly discontinue the case, begun under the previous Republican administration, lest it give an impression of political favoritism. In a 5–3 decision, the Court upheld this application of the Mann Act. The majority declared that it must abide by the plain words of the act, that any “immoral purpose” was enough.
Justice McKenna for the dissenters claimed that the “White Slave Traffic Act” title and legislative history showed that Congress intended to reach only “commercialized vice, immoralities having a mercenary purpose . . . vice as a business.” “Everybody knows that there is a difference between the occasional immoralities of men and women and that systematized and mercenary immorality epitomized in the statute’s graphic phrase, ‘white slave traffic.’” Nevertheless, Mann congratulated Justice William R. Day for his proper interpretation of the act. And there was enough confusion or ambivalence in the public mind as to what really defined “prostitution” to sustain this reading of the act. There would be nearly 5,000 Mann Act convictions over the next decade, most of which were noncommercial.
The Mann Act showed how far the federal police power had been extended. The great Chief Justice John Marshall, in the 1824 case Gibbons v. Ogden, had defined commerce as “intercourse.” Now his successors held that intercourse was commerce.
— Paul Moreno is the director of academic programs at Hillsdale College’s Kirby Center for Constitutional Studies and Citizenship. This article is adapted from his 2013 book The American State from the Civil War to the New Deal: The Twilight of Constitutionalism and the Triumph of Progressivism.