At the turn of the 20th century, as more people in the United States started moving to urban areas, the quality of the milk supply became one of the preeminent public health challenges of the day and a centerpiece of the Progressive agenda. Governments passed ordinances and statutes to safeguard the milk supply and sanctioned violators of these laws. This study collects the published cases where judges were asked to enforce these health regulations.
Contrary to the Revisionist reading of Progressive Era constitutional history, these cases demonstrate that enforcement of these health laws became more difficult during the Progressive Era. Parties resisting these laws made broader constitutional challenges to the laws more often. While the number of victories for these parties remained steady, the scope of their victories became broader. The study also throws light on the early use of "regulatory crimes."
Governments were more likely throughout the study period to use a criminal rather than a civil enforcement process. Surprisingly, the use of criminal enforcement did not affect the government's success rate in these cases.
Milk today seems so benign. But at the turn of the 20th century, safe milk was one of the preeminent public health challenges of the day. As people in the United States moved from the countryside into cities, their milk supply became unhealthy. Milk from cows in the country was transported further and stored at higher temperatures than in the past. Milk produced closer to the cities came from cows kept under crowded and unsanitary conditions. Many city residents, especially children, were getting sick and dying because of contaminated milk.
These threats to a food with special importance for children-praised as nature's "most nearly perfect" food (Crumbine & Tobey 1930:17; Wain 1970:250)-spurred governments at all levels into action. Health regulators were confident they could solve the milk problem. Beginning in the northeastern United States in the 1860s, and spreading throughout the nation by the 1900s, governments passed ordinances and statutes to safeguard the health of the milk supply. They pursued and punishedsometimes as criminals-those wrongdoers who distributed unsanitary milk.
As a result of the rising tide of governmental activity between 1860 and 1940, milk health regulation figures in two of the most familiar stories in the canon of legal history. The first of these stories deals with constitutional history. The treatment of milk safety laws in the courts was a key example of attempts, often unsuccessful, to enforce Progressive Era health legislation. The account familiar to students of constitutional history emphasizes the judges' hostility to health and safety regulation during the Progressive Era. Judges overturned many statutes and rules on constitutional grounds and were slow to accept the legitimacy of many laws defended as health regulations.1 This judicial hostility to popular health and safety laws created an institutional crisis.
By the end of the New Deal period, the backlash from this judicial effort to resist legislation led many judges to change course.
They began to defer to legislative decisions about health and economic matters (the so-called "switch in time that saved nine") (Fried 1998; Murphy 1972:41-167; Tribe 2000:1357-71).
Over the years, the truth of this oft-repeated story has come into question. Revisionists have pointed out that many health and safety statutes did survive constitutional challenges (Friedman 1985:355-58, 457-63; Semonche 1978; Urofsky 1985). Constitutional defeats for these laws did become more common during the Progressive Era, but the number of losses always remained low. Revisionists say that the occasional setbacks should not obscure an overall picture of judicial acceptance of health and safety statutes.2
These constitutional debates, however, have proceeded on the basis of surprisingly sketchy information about actual enforcement patterns. …