Introduction
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between reconstruction and the New Deal, American courts strug-
gled with the issue of how much protection the Fourteenth Amendment of
the United States Constitution, adopted in 1868, accorded economic ac-
tivity. The amendment was primarily intended to secure the rights of the
freedmen against hostile state and local governments, but its supporters
also sought to extend federal constitutional protection of liberty against
state action more broadly. Unfortunately, the scope of the protections
provided was left extremely vague. The amendment does not explain
what is meant by ‘‘privileges or immunities of citizens of the United
States,’’ and ‘‘equal protection of the laws,’’ which the amendment pur-
ports to protect from hostile state action. Nor does the amendment spell
out what it means when it prohibits states from depriving persons of ‘‘life,
liberty, or property, without due process of law.’’
Because contemporary American ideology placed high value on the
right to make and enforce contracts, particularly labor contracts, litigants
quickly challenged economic regulations as violations of the vague terms
of the Fourteenth Amendment. In the Slaughter-House Cases,∞
decided in
1873, a one-vote majority of the Supreme Court embraced a narrow
reading of the amendment. The majority stated that the Court may not
interfere with state and local economic regulations that did not explicitly
discriminate against African Americans. The dissenters, however, vig-
orously argued that the amendment gave courts latitude to invalidate
legislation that interfered with prevalent notions of economic freedom,
particularly the right to pursue a lawful occupation without unreasonable
government interference.
Several state courts implicitly or explicitly rejected the Slaughter-House
majority opinion in favor of the dissent and invalidated economic regula-
tions, especially labor regulations, as violations of the Fourteenth Amend-
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