Brown, Henry Billings (1836–1913)

AuthorRobert Jerome Glennon
Pages252-253

Page 252

Henry Billings Brown served on the Supreme Court from 1890 to 1906. During that period, he wrote more than 450 majority opinions and dissenting or CONCURRING OPINIONS in some fifty other cases, many of which had contemporary and historical significance. Justice Brown's jurisprudence revealed some hesitance, some ambivalence, even contradiction as he struggled to perform the judicial function.

The glorification of private property and free competition reflected one dimension of Brown's thought. He considered the right of private property "the first step in the emergence of the civilized man from the condition of the utter savage," and he joined the majority in LOCHNER V. NEW YORK (1905), striking down a state law that limited the hours of bakery workers to a maximum of sixty per week or ten per day. Yet Brown usually construed the STATE POLICE POWER broadly and sanctioned legislative modification of laissez faire principles. In HOLDEN V. HARDY (1898) Brown upheld Utah's maximum hours act for miners, rejecting arguments that the state had violated the CONTRACT CLAUSE and denied property without DUE PROCESS. He looked realistically at the disparity in bargaining position between employer and employee, recognizing that fear of losing their jobs prompted laborers to perform work detrimental to their health. Concern for public health and inequality of bargaining power justified the state regulation.

POLLOCK V. FARMERS ' LOAN & TRUST CO. (1895) also revealed Brown's willingness to permit legislative regulation of private property. When the Court struck down a congressional tax on incomes, Brown eloquently dissented, protesting that the decision ignored a century of "consistent and undeviating" precedent and represented "a surrender of the TAXING POWER to the moneyed class." Although opponents of the tax had raised the specter of socialism to dissuade Congress from raising funds, Brown construed Pollock as "the first step toward the submergence of the liberties of the people in a sordid despotism of wealth."

Brown supported the gradual development of federal power as a necessary concomitant to a modern industrial economy. He also wrote many of the Court's ADMIRALTY opinions, broadly interpreting federal JURISDICTION and the scope of federal maritime law. Brown similarly endorsed an expansive federal power under the COMMERCE CLAUSE, joining, for example, Justice OLIVER WENDELL HOLMES ' classic statement of the STREAM OF...

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