Vol. 76, No. 5, May
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
by Joseph A. Ranney
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
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. 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
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
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
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
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
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).
This 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
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
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).
Joseph A. Ranney, Shaping Debate, Shaping Society: Three Chief
Justices and Their Counterparts, 81 Marq. L. Rev. 923,
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,
supra note 5, at 218, 249.
John B. Winslow, supra note 1, passim.
Ranney, supra note 2, at 255-358; Herbert Margulies, The
Decline of the Progressive Movement in Wisconsin, 1900-1920
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).
Joseph A. Ranney, Concepts of Freedom: The Life of Justice Byron
Paine, 75 Wis. Law. 18 (Nov. 2002).
Zillmer, 114 Wis. at 546.
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).
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.
at 9, 12.
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
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).
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
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
31 164 Wis. 228,
157 N.W. 777 (1916).
Ranney, supra note 2, at 383-84.
at 384-88; State ex rel. Wisconsin Inspection Bureau v.
Whitman, 196 Wis. 472, 505-06, 220 N.W. 929 (1928)
supra note 2, at 383-84; see also Marvin B.
Rosenberry, Administrative Law and the Constitution, 23 Am.
Pol. Science R. 32 (1929).
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).
Robert S. Maxwell, Emanuel Philipp: Wisconsin Stalwart 164-68
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.
"In Memoriam: Chief Justice John B. Winslow," 174 Wis. xxiii, xlvii
(1921) (remarks of Chief Justice Robert Siebecker).