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    Chief Justice John B. Winslow: Stretching the Procrustean Bed

    Winslow pleaded with judges and the public for constructive conservatism, arguing that laws should be reformed through the legislative process and not through court decisions. To do otherwise would stretch the unchanged constitution on a Procrustean bed to fit the desired reform.

    Joseph Ranney

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    John Winslow

    In 1912 Chief Justice John Winslow wrote a history of the Wisconsin Supreme Court. Winslow's history stopped at the year 1880; he expressed the hope that at some future date another person would continue the history of the court through his own era. Winslow believed "the foundation [had been] broadly laid for Wisconsin's temple of justice" by 1880. He downplayed his own era by comparison, commenting that it "cannot approach in dramatic interest the [1848-1880] period, ... yet there will be found in it many events well worth the consideration of the historian."1

    Winslow was entirely too modest. During his years on the supreme court (1891-1920), "more changes were made in Wisconsin's laws, with a greater impact on the state's life, ... than at any other time in the state's history."2 Wisconsin moved from the task of accommodating industrial expansion to that of creating the regulatory and administrative systems necessary to balance individual rights against the needs of a society increasingly dominated by mature industries and other large institutions.

    The new task was not easy; there was much resistance to the changes of the Progressive era. Winslow played a vital part in shaping the court's response to those changes. He engaged in a principled debate with his conservative colleague Roujet Marshall (who will be profiled in a later article in this series) over the appropriate legal balance between social needs and individual rights, and he helped the Progressives make their legacy permanent. Winslow is indisputably one of the most important justices in the court's history.3

    Early Years (1851-1900)

    Winslow was born in western New York in 1851. His father, a moderately prosperous businessman, moved the family to Racine in 1855. Winslow spent his youth in Racine; he attended college and graduated from the U.W. Law School in 1875. Winslow rose quickly in the legal profession: he returned to Racine, built a successful practice, and was elected judge of the local circuit court in 1883.4 He first attracted statewide notice in 1888 when Reverend Olympia Brown, a fellow Racine resident who headed the women's suffrage movement in Wisconsin, attempted to vote. The Legislature had recently enacted a law allowing women to vote in elections "pertaining to school matters" but had not made clear whether this meant women could vote for all offices on the ballot at elections involving school issues or only for school offices. Winslow interpreted the law in favor of broad suffrage and upheld Brown's right to vote, but he was reversed by the supreme court later that year.5 Winslow, who had three daughters, remained sympathetic to women's causes throughout his career and actively supported women's suffrage after he became chief justice.6

    Winslow's innate sympathy for outsiders was due in part to the fact that he viewed himself as a political outsider: he was a lifelong Democrat in a predominately Republican state. Winslow believed his politics would hamper his chances for judicial advancement, but in 1890 his party briefly gained control of state government and in 1891 Gov. George Peck appointed him to the supreme court. Even though Winslow was highly thought of, he faced Republican opponents in his reelection campaigns in 1895 and 1905 and was reelected only by narrow margins. This prompted him to crusade for nonpartisan judicial elections, and he played an important role in bringing partisan judicial nominations to an end in Wisconsin.7

    Accommodating the Progressive Era (1901-1911)

    During Winslow's first full term on the court, Robert LaFollette was elected governor and Wisconsin's Progressive era began. Between 1901 and 1915, LaFollette and his supporters enacted far-reaching reform laws in a variety of areas including election practices, civil service, public utility regulation, taxation, and workplace health and safety reform.8 Throughout their time in power, the Progressives watched the Wisconsin Supreme Court closely to see if it would follow the lead of the U.S. Supreme Court and many other state courts, which periodically invoked the doctrine of substantive due process to strike down reform laws. Under substantive due process, "any state statute ... which imposed any kind of limitation upon the right of private property or free contract immediately raised the question of due process of law. ... Not in every instance was the statute found to be a violation of due process, [but] the [courts] insisted upon [their] right to examine the statute in question and to determine whether it constituted a legitimate exercise of the police power."9

    Progressives throughout the United States were so disturbed by substantive due process that they proposed a variety of devices to curb perceived judicial excesses. The most prominent were provisions for popular recall of judges and recall of any decision striking down a law as unconstitutional. Radical Progressives bluntly attacked the courts as tools of the rich and powerful; more moderate critics argued that the courts should exercise only narrow powers of review and defer to legislatures, which were better equipped to assess and respond to the needs of modern society.10

    At first it appeared that Winslow and his colleagues might join the substantive due process bandwagon. In 1897 the court struck down a Beloit school regulation requiring students to be vaccinated for smallpox,11 and in 1902, in State ex rel. Zillmer v. Kreutzberg, it struck down a state law forbidding employers to fire workers for joining a union.12 The court, still heavily influenced by mid-19th century concepts of free labor13 and apparently unimpressed with the argument that the rise of large corporations had changed the balance of power between labor and capital, reasoned that workers and employers should be left free to negotiate individually with each other and that the law "invad[ed] the liberty of the employer in an extreme degree."14

    Between 1903 and 1907 the court upheld several major pieces of Progressive legislation against constitutional challenges.15 But in 1907 the specter of substantive due process returned when, in State v. Redmon, the court struck down a state law governing Pullman sleeping cars.16 Speaking for the court, Marshall argued that the Wisconsin Constitution required the court to review reform legislation for reasonableness. He warned that if this was not done, "the incentive to industry, to the acquirement and enjoyment of property, those things commonly supposed to make a nation ... great, would be largely impaired and in some cases destroyed."17 In Bonnett v. Vallier (1908), the court struck down a major piece of legislation designed to eliminate slum housing on the ground that it did not take into account the difference in housing conditions between Milwaukee and the rest of the state and, therefore, deprived landlords of property rights.18

    Winslow, who had succeeded John Cassoday as chief justice, became concerned about rising public discontent with the court. Beginning in 1909, he decided to use his position to combat the problem. In early 1909 he addressed the Milwaukee Loyal League and laid out the main themes of his campaign.19

    Winslow pleaded for "constructive conservatism" on the part of both judges and ordinary citizens and made clear that he and his colleagues understood the forces driving reform. Winslow agreed that legal reform was necessary because "the imperious and complex problems of great cities and crowded populations have come suddenly upon a people whose fundamental law was designed for a rural or semi-rural state," but he reminded his audience that "judges are sworn to protect both the federal and state constitutions as they are, not as they would like to see them." He concluded by urging that if the law "is faulty and fails to meet new social needs, [the reformer's] course is not to abuse courts or judges but to take steps to amend the basic law, wearisome though the task may be."20 During his remaining years, Winslow took every opportunity to repeat these themes to audiences whenever opportunity offered.21

    The Triumph of Constructive Conservatism (1911-1920)

    The year 1911 was a watershed year for both the Progressives and the court. The Legislature enacted three epochal measures that ushered in the modern regulatory era in Wisconsin: a worker's compensation law, a law creating the Industrial Commission to create and enforce workplace safety standards, and an income tax law.22

    Joseph A. RanneyJoseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of Trusting Nothing to Providence: A History of Wisconsin's Legal System (1999) and has taught as an adjunct professor at Marquette University Law School.

    Earlier attempts to enact worker's compensation had been struck down in other states as violative of employers' due process rights, most recently in New York, and there was widespread concern that Winslow and his colleagues would follow the example of New York's highest court.23 Instead, the court upheld Wisconsin's worker's compensation law in Borgnis v. Falk Co.  (1911),24 and Winslow used the occasion to send his message of constructive conservatism to the entire state.

    Winslow began by pointing out that industrial accidents were becoming epidemic in Wisconsin and that tort law had failed to meet the problem. "To speak of the common-law personal injury action as a remedy for this problem," he stated, "is to jest with serious subjects, to give a stone to one who asks for bread."25 Winslow then gave perhaps the most eloquent defense of flexible constitutional construction ever presented in Wisconsin. He stated:

    "When an eighteenth century constitution forms the charter of liberty of a twentieth century government, must its general provisions be construed and interpreted by an eighteenth century mind in light of eighteenth century conditions and ideals? Clearly not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes."26 (Procrustes is a figure from Greek mythology who tied his victims to an iron bed and stretched or shortened their bodies to fit the bed.)

    Marshall protested that the worker's compensation law could be upheld under traditional rules of constitutional interpretation, and he warned that "if the constitution is to efficiently endure, [it cannot] be resquared, from time to time, to fit new legislative or judicial notions of necessities."27 But he could not persuade his colleagues to join him on this point.

    Winslow's efforts generated much favorable publicity for the court as well as for Winslow himself. Presidents Taft and Wilson seriously considered appointing Winslow to the U.S. Supreme Court at various times between 1910 and 1916, but ultimately he was not appointed because of friction between the presidents and LaFollette (who by now was a U.S. Senator) and because the Midwest was already represented on the high Court.28

    As Winslow aged he became, if anything, more liberal. In 1915 and 1916 he delivered a series of lectures to law students at the University of Wisconsin in which he stated bluntly that "inequality of opportunity is becoming greater with every forward step which we take" and that "it is the great business of the government to correct these inequalities so far as possible by law."29 Winslow even expressed tacit regret for the court's 1902 Zillmer decision, commenting ruefully that: "It is quite probable that few working men appreciated the anxiety shown by the courts in decisions to prevent the restriction of their liberty to make contracts. ... An academic victory like this achieved against him under the generalship of his employer and wrought out in the rarefied atmosphere of abstract reasoning must have been about as satisfactory to the workingman as a 'Barmecide feast' to the hungry."30 (In the Arabian Nights, Barmecide, a nobleman, served an imaginary feast to a beggar.) Winslow regularly urged law students and young lawyers to study sociology, economics, and other social sciences along with law and to apply their training to promote the public welfare.

    In 1916 Winslow played an important behind-the-scenes role in one of the last great decisions of the Progressive era, State v. Lange Canning Co., in which the court upheld the 1911 workplace safety law.31 In Lange Canning, the court initially held that a portion of the law authorizing the Industrial Commission to establish limits on women's working hours was unconstitutional because it impermissibly delegated legislative power to another body. Winslow was the sole dissenter. If the court's initial holding had stood, it would have posed a threat to many other Progressive efforts to implement reform through administrative agencies such as the Railroad Commission and the Civil Service Commission.32 But Attorney General Walter Owen asked the court to reconsider its decision, and after further review, the court, speaking through newly appointed Justice Marvin Rosenberry, changed its mind.

    There is no record of the court's internal debates, but it is very likely that Winslow persuaded Rosenberry and the other members of the original majority to change their minds. The case prompted Rosenberry (who also will be profiled in a later article in this series) to think deeply about the role that agencies should play in a modern governmental system. Eventually, Rosenberry concluded that the delegation doctrine on which the court had originally relied in its first decision in Lange Canning should be abandoned and that the court should recognize agencies as a new, fourth branch of government. "It only leads to confusion and error," said Rosenberry, "to say that the power to fill up the details and promulgate rules and regulations is not legislative power."33 Rosenberry's views of administrative law gained national attention. Winslow, in Lange Canning, probably set in motion the revolution that Rosenberry implemented.34

    Wisconsin Legal History

    This is the fifth of a series of articles on Wisconsin's legal history that will appear in the Wisconsin Lawyer through 2003 to commemorate significant anniversaries of the Wisconsin Supreme Court (150 years), the State Bar of Wisconsin (125 years), and the Wisconsin Court of Appeals (25 years).

    2003: Celebrating Wisconsin's Legal HistoryThis series presents biographies of prominent Wisconsin Supreme Court justices and is part of the work of the Wisconsin Legal History Committee, which was appointed by Chief Justice Shirley Abrahamson to commemorate the legal entities' anniversaries in 2003 and to encourage the study of Wisconsin legal history generally.

    Visit WisBar's newest feature: Wisconsin's legal history. Celebrating Wisconsin's Rich Legal History, a new feature on WisBar, is a permanent archive of important events and biographies in Wisconsin's legal history. It describes events and activities commemorating the important role the legal profession, the organized Bar, and Wisconsin courts have played in the state's development over the past 150 years. Peruse a collection of legal history-related materials written over time, plus new materials prepared in celebration of the State Bar's 125th and the Wisconsin Supreme Court's 150th anniversaries in 2003. To learn more, please visit www.wisbar.org/bar/history.

    The last major challenge of Winslow's life came during World War I, when he provided a voice of moderation to counter the wave of anti-German sentiment that swept Wisconsin and the nation. Many Wisconsinites of German ancestry had strong reservations about the United States' decision to enter the war against Germany in 1917, and the federal government enacted a series of harsh laws that it used vigorously to suppress criticism of the war effort. Several Wisconsin German leaders, including Judge John Becker of Monroe and Victor Berger of Milwaukee, were convicted of sedition and sentenced to long jail terms for remarks that, under any modern view, were well within the scope of protected free speech.35 Winslow actively promoted the war effort, but at the same time he joined Gov. Emanuel Philipp and other moderates in cautioning that German-Americans should not be judged as a group and that their right to discuss the war must be protected.36 In at least one case, when a colleague wanted to insert into a court opinion comments criticizing Germany's part in the war, Winslow persuaded him not to, arguing that "while perfectly proper in a Liberty Loan speech, [the comments] are of doubtful propriety in a judicial opinion which is to be indefinitely preserved and probably should not bear evidence of passion."37

    Conclusion

    Winslow's death in 1920 prompted a tribute unprecedented in Wisconsin legal history. Winslow was not wealthy, and when it became known that his wife and daughters faced a real prospect of destitution, lawyers throughout the state spontaneously sent contributions for their support that eventually totaled $15,000, a very large sum for the time.

    This tribute reflected a general feeling that Winslow possessed an extraordinary combination of personal and intellectual virtues. One of his colleagues on the court said privately (and accurately) that many of Winslow's decisions "by beauty of language approach the field of literature" and that "[Chief Justice Edward] Ryan's work, only, in this state may equal or surpass his reasoning and diction."38 Winslow was also admired for his lack of pretension and the fact that after he ascended to the bench, he actively cultivated ties with practicing lawyers.39

    It was not clearly recognized at the time, but can be clearly seen now, that Winslow's philosophy of "constructive conservatism" played a vital role in shaping Wisconsin law to accommodate the final stages of the state's adjustment to the industrial era and in preserving the Progressive reforms that ushered in Wisconsin's modern era. The Progressive movement also was facilitated by able judges in other states, but it is likely that any comprehensive survey would rank Winslow as one of the most important American judges of the Progressive era.

    Endnotes

    1 John B. Winslow, The Story of a Great Court 379 (Chicago, 1912).

    2 Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin's Legal System 255 (Madison, 1999).

    3 See Joseph A. Ranney, Shaping Debate, Shaping Society: Three Chief Justices and Their Counterparts, 81 Marq. L. Rev. 923, 937-46 (1998).

    4 Clarinda Winslow, John Bradley Winslow, American Jurist 8, 25-30, 50-55 (Dodge City, Kan., 1984).

    5 Brown v. Phillips, 71 Wis. 239, 36 N.W. 242 (1888); see also Gilkey v. McKinley, 75 Wis. 543, 44 N.W. 762 (1890); Genevieve G. McBride, On Wisconsin Women 39-41, 117-33 (Madison, 1993).

    6 McBride, supra note 5, at 218, 249.

    7 See John B. Winslow, supra note 1, passim.

    8 See Ranney, supra note 2, at 255-358; Herbert Margulies, The Decline of the Progressive Movement in Wisconsin, 1900-1920 (Madison, 1968).

    9 Alfred H. Kelly & Winfred A. Harbison, The American Constitution: Its Origins and Development 525-26 (4th ed.: New York, 1970); see also id. at 689-96, 710-11.

    10 Kelly & Harbison, supra note 9, at 635-36; Ranney, supra note 2, at 360-63.

    11 State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N.W. 347 (1897).

    12 Laws of 1899, chapter 332; 114 Wis. 530, 90 N.W. 1098 (1902).

    13 See Joseph A. Ranney, Concepts of Freedom: The Life of Justice Byron Paine, 75 Wis. Law. 18 (Nov. 2002).

    14 Zillmer, 114 Wis. at 546.

    15 See Railroad Tax Cases, 128 Wis. 553, 108 N.W. 557 (1906); Nunnemacher v. State, 129 Wis. 190, 108 N.W. 627 (1906) (upholding inheritance tax).

    16 134 Wis. 89, 114 N.W. 137 (1907).

    17 Id. at 109.

    18 136 Wis. 193, 116 N.W. 885 (1908).

    19 John B. Winslow, "The Patriot and the Courts" (Feb. 3, 1909), Winslow Papers, Wisconsin Historical Society.

    20 Id. at 9, 12.

    21 See, e.g., John B. Winslow, An Understanding Heart: Does the American Judge Possess It?, 31 Survey 17 (Oct. 4, 1913); editorial, Chicago Tribune, July 6, 1912 (discussing Winslow's efforts); Winslow, "The Judicial Recall: Is It A Remedy or A Nostrum?", 13th Annual Kansas Conference on Charities and Correction (1914), all in Winslow Papers, Wisconsin Historical Society.

    22 Laws of 1911, chapters 50 (worker's compensation), 485 and 486 (Industrial Commission), and 658 (income tax).

    23 Ives v. South Buffalo R. Co., 201 N.Y. 271, 94 N.E. 431 (1911); see Ranney, supra note 2, at 344-355.

    24 147 Wis. 327, 133 N.W. 209 (1911).

    25 Id. at 347-48.

    26 Id. at 349-50.

    27 Id. at 375 (Marshall, J., concurring).

    28 See letters, LaFollette to Roujet Marshall (Jan. 2, 1910); Marshall to LaFollette and Sen. Isaac Stephenson (Dec. 10, 1910); Sen. Albert Cummins (R-Iowa) to Marshall (March 13, 1911); Judge Andrew Bruce (North Dakota) to Wilson (Aug. 13, 1914); all in Winslow Papers, Wisconsin Historical Society.

    29 John B. Winslow, lecture notes at 20 (no date; probably 1915), in Winslow Papers, Wisconsin Historical Society.

    30 John B. Winslow, "Some Tendencies of Modern Legislation and Judicial Decision," lecture notes at 26-27 (May 3, 1916), in Winslow Papers, Wisconsin Historical Society.

    31 164 Wis. 228, 157 N.W. 777 (1916).

    32 See Ranney, supra note 2, at 383-84.

    33 Id. at 384-88; State ex rel. Wisconsin Inspection Bureau v. Whitman, 196 Wis. 472, 505-06, 220 N.W. 929 (1928)

    34 Ranney, supra note 2, at 383-84; see also Marvin B. Rosenberry, Administrative Law and the Constitution, 23 Am. Pol. Science R. 32 (1929).

    35 Ranney, supra note 2, at 240-46; see also John D. Stevens, When Sedition Laws Were Enforced: Wisconsin in World War I, 58 Wis. Acad. of Science, Arts & Letters 39 (1970).

    36 See Robert S. Maxwell, Emanuel Philipp: Wisconsin Stalwart 164-68 (Madison, 1959).

    37 Letter, Winslow to Justice Aad J. Vinje, no date (probably 1919), in Winslow Papers, Wisconsin Historical Society.

    38 Memorandum of Justice Christian Doerfler, no date (probably 1921), in Winslow Papers, Wisconsin Historical Society.

    39 See "In Memoriam: Chief Justice John B. Winslow," 174 Wis. xxiii, xlvii (1921) (remarks of Chief Justice Robert Siebecker).




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