Symbolic of the hopes with which the era began was the passage of the Fourteenth Amendment to the U.S. Constitution, which guaranteed that no person would be deprived of life, liberty, or property without due process of law. In so doing, the amendment establisheda constitutional basis for the idea of equality that had played such a prominent role in the Declaration of Independence. (By turning a blind eye to slavery, the original Constitution had never made that promise.) For the first time in American history, all persons born or naturalized in the United States would be treated as full citizens of the society in which they lived.
Beattys method is eclectic. He doesnt follow a straight-line chronological path so much as dwell on telling moments to extracttheir significance and meaning. But although he seems at times to meanderthe book begins with a discussion of how American railroad magnates standardized time across the United States to make the business of organizing travel more predictable, and then moves on to describe how the city of Chicago rose so rapidly from the midwestern plainsthere is a grand theme unifying the stories he tells. Abe Lincoln rose to power on the basis of the idea of free labor; slavery was wrong because it prevented workers from gaining the rightful rewards from their efforts, and, for the same reason, workers ought to be able, by the dint of their labor, to end their dependency on others by rising up through the ranks to middle-class status. Emancipation and the Homestead Act represented the crowning achievements of Lincolns Republicanism. Both would be abandoned by the political party that Lincoln helped to establish.
To chart how this took place, Beatty takes the reader on a long, and worthwhile, tour of American jurisprudence. It begins in New Orleans in 1869 with a man named John A. Campbell. The citys filthy and unsafe slaughterhouses had been the subject of extensive negative publicity in the papers. In response, the city passed what it called An Act to Protect the Health of the City of New Orleans and to Locate the Stock Landings and Slaughter Houses. The act gave a private company the right to rent space to the citys butchers, who had previously been scattered throughout the city and, completely unregulated, had practiced their trade with little regard for the publics health.
The displaced butchers sued. Campbell, an embittered former Confederate who had once served on the U.S. Supreme Court (and wrote a concurring opinion in Dred Scott, the infamous decision that treated slaves as property rather than as citizens), rallied to their defense. One might think that a Southern conservative would have attacked the Civil War amendments for their ringing defense of equality. But Campbell had a better idea. Werent the butchers being enslaved because they were forbidden to practice their livelihood as they best saw it, he wondered? If no person shall be deprived of their rights without due process of law, werent those same butchers the subject of unequal treatment? Campbell embraced the Fourteenth Amendment in order to crush it. Once businessmen could claim that economic regulation deprived them of their property without due process of law, the result would be the perpetuation of economic inequality rather than the promised equality between the races.
Campbell also played an important role in the development of substantive due process: the idea that the courts could judge a legislative act not only on the basis of whether it met the test of fair procedure (such as treating everyone equally), but also whether its substance was worthy of judicial approval. Since the Constitution itself is mostly about procedures, to judge on substance means to compare a particular law to some extra-constitutional standard which the Constitution is then stretched to embody. Conservatives of the period had no doubt what such a standard should be. The right to own private property, and to dispose of it as one sees fit, they believed, is inherent in nature and endowed by God. Things regulate themselves … which means, of course, that God regulates them, the economist Francis Bowen argued. If that was true, then all social legislation could be held unconstitutional on substantive grounds; Bowens Harvard colleague, J. Laurence Laughlin, objected to the very use of the word social, as if there were no such thing as a common good capable of trumping the economic rights of those who owned property.
Once substantive due process entered into judicial reasoning, it was only a matter of time before corporations came to be considered persons and thus brought under the protection of the Fourteenth Amendment. The way this occurred forms one of Beattys most fascinating vignettes. This revolutionary doctrine, it turns out, owes its construction not to any elected politician, nor even to any judge who, however protected from public scrutiny by life tenure, was at least originally appointed by a president elected by the people. The culprit was a Supreme Court reporter named John Chandler Davis. The courtreporter summarizes legal opinions in the form of headnotes. In one such headnote, Santa Clara County v. South Pacific Railroad Co., which dealt with the issue of whether the state of California could tax property owned by the railroads, Davis summarily proclaimed the new doctrine: corporations can be treated as persons under the terms of the Fourteenth Amendment. Thus without argument or opinion on the point, Justice William O. Douglas would write much later, the Santa Clara case becomes one of the most momentous of all our decisions … Corporations are now armed with constitutional prerogatives.
Beatty has many more stories to tell. He devotes a chapter to the Great Railroad Strike of 1877 and to the militant anti-union tactics of the Pennsylvania Railroads third vice president, Alexander Cassatt, brother of the famous Impressionist painter Mary Cassatt. He describes the emergence of the Populist revolt, the first serious attempt by ordinary Americans to put a stop to the plunder. Considerable attention is paid to various tactics of ballot box manipulation. He also details the more egregious double standards of the Supreme Court, which held that the Sherman Anti-Trust Act (the first-ever federal law that attempted to limit the power of monopolies) did not apply to a company that controlled 98 percent of the sugar industry but did to the labor union led by Eugene V. Debs. Politics and business from the end of the Civil War until Theodore Roosevelts ascension to the presidency offer an especially capacious gallery of rogues, and Beatty has little trouble filling his pages with one outrage after another.
Not holding an academic position in a history department, Beatty is free to bring out the comparison between that time and our own, and he does so with gusto. The idea that corporations can be considered persons underlies the Supreme Courts more contemporary review that stringent forms of campaign finance reform violate freedom of speech. The ability of private companies to avoid economic regulation foreshadows the decimation of the regulatory state under George W. Bush. Andrew Carnegie won contracts during the Spanish-American War not unlike those procured by Halliburton during the Iraq War. This is not to suggest that politics today is more shameful than it was then; it would be hard to top the Gilded Age in sheer unfairness. But there is one episode which suggests that we have more to account for than our Gilded Age brethren. I know that to threaten war for political reasons is a crime, Senator Henry Cabot Lodge wrote to TR, before adding: But to sacrifice a great party and bring free silver upon the country … is hardly less odious. No current Republican of Lodges stature has acknowledged that if it was a crime to pursue war for political reasons then, it remains one today.
In the end, though, Beatty rejects the notion of a perfect analogy between those times and our own. The reason has everything to do with race. Even if Americans had wanted to reject the politics of the Gilded Age, the party system that controlled it would have made the task close to impossible. The era was premised on a Faustian bargain between the parties. In the Gilded Age it was easier to credit the virgin birth than that government could serve the general welfare, says Beattywith disdain. Republican government serviced business. The Democrats wanted a weak federal government so that the southern oligarchy could maintain the institutionslynching, convict-labor, fraudulent elections, disenfranchisement, racial apartheidthat alone gave it popular legitimacy. This was the postCivil War compromise: Republicans would weaken government to serve the upper class rather than the middle class, while the Democrats would accept Republican rule to protect their privileges in the South.
The end result was that in order toprotect whites against blacks, American democracy was turned upside down. Rights were granted to those who needed them the least while denied to those who needed them most. The side that lost the war won the peace. Judges declared national law superior to state law when it served business, but then declared state law superior to national law when that served business. A war fought to enable blacks in the South to vote resulted in whites in the North being effectively disenfranchised. Lincoln Steffens once wrote about the shame of the city; this was the shame of the country.
One of the most interesting questions one can ask about a society is how it deals with its own shame. One answer is that it ought never to forget in the future what its citizens tried to ignore in the past. We owe much to Jack Beatty for this moving, angry, and righteously just account of this ignoble half century. It is obvious to the reader, just as it is to the author, that if we are ever to deal with the shame of the Bush years, we need to understand an earlier era in which a disputed election was resolved in favor of the candidate with the smaller popular vote, ballot fraud was ubiquitous, class differences were as exacerbated as they were ignored, legislation and legislators were bought lock, stock, and barrel, and preemptive war was declared under dubious pretenses. If they got away with it once, Beatty implies, they can get away with it again. The Age of Betrayal is about nothing less than whether democracy is something Americans care enough about to keep.
