Lochner, Liquor, and Longshoremen: A Puzzle in Progressive Era Federalism

Journal of Maritime Law & Commerce, Vol. 32, No. 1, January, 2001

Notre Dame Legal Studies Paper No. 1331

UVA School of Law, Public Working Paper No. 00-14

59 Pages Posted: 7 Dec 2000 Last revised: 6 Jun 2013

Date Written: June 6, 2013


In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed bill to authorize the states again to regulate such sales. It was enacted only over strenuous objections that such legislation unconstitutionally delegated congressional authority to regulate interstate transactions and thereby authorized unconstitutional disuniformity in the regulation of interstate commerce. While the Court would consistently approve this and other similar congressional legislation, the debate over constitutional constraints on such congressional authorizations would persist over the course of the next half-century. It is only fairly recently that such measures became "unexceptionable."

A parallel debate unfolded in the more recondite domain of admiralty, with strikingly different results. In 1917, in the controversial case of Southern Pacific Co. v. Jensen, the Supreme Court held that New York’s workmen’s compensation statute could not constitutionally apply to workplace injury sustained over navigable waters. The Court relied upon its dormant Commerce Clause decisions in the liquor context in holding that such an application of the state statute would interfere with the uniformity of maritime law contemplated by Article III's grant of admiralty jurisdiction to the federal courts. Yet when Congress enacted legislation authorizing the application of state workmen's compensation statutes to maritime workplace injuries, the Court invalidated the statute on the ground that it delegated congressional authority to regulate maritime matters and thereby authorized unconstitutional disuniformity in the substantive law of admiralty. The contention that had failed in the Commerce Clause context prevailed in admiralty.

This curious asymmetry in the Court's federalism jurisprudence has never been satisfactorily explored. Admiralty scholars, content for the most part to explain Jensen and its progeny as manifestations of judicial hostility to worker-friendly Progressive legislation, have paid scant attention to cognate developments in Commerce Clause jurisprudence. Similarly, historians of constitutional federalism, perhaps viewing admiralty jurisprudence as an occult science, have largely neglected the field. Yet an excursion into interdoctrinal comparative law promises to shed new light on both subjects. This article challenges the traditional interpretation of the Jensen line of cases, while at the same time integrating these developments in admiralty law into the larger story of cooperative federalism and legal and social reform in the Progressive Era. In addition to offering a reinterpretation of these leading admiralty decisions, the article aims to identify the salient features of the political and constitutional landscape within which distinctive forms of cooperative federalism emerged in the Progressive Era, and to illuminate the manner in which those features helped to shape the asymmetric constitutional law of federal-state cooperation.

Keywords: Admiralty, Commerce Clause, Legal History, Constitutional Law, Southern Pacific v. Jensen, Cooperative Federalism, Constitutional Structure

Suggested Citation

Cushman, Barry, Lochner, Liquor, and Longshoremen: A Puzzle in Progressive Era Federalism (June 6, 2013). Journal of Maritime Law & Commerce, Vol. 32, No. 1, January, 2001; Notre Dame Legal Studies Paper No. 1331; UVA School of Law, Public Working Paper No. 00-14 . Available at SSRN: https://ssrn.com/abstract=252069 or http://dx.doi.org/10.2139/ssrn.252069

Barry Cushman (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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