Constitutional History - Examination #1


 To be done in class on Thursday, September 25th.  Open book: You may bring your text (Kutler and Hoffer), printed out Supreme Court opinions, notes from class, and an outline.  You MAY NOT bring a prepared answer.  Group studying is encouraged and you may collectively come up with an outline if you wish but you must write your own answer.


 Charles Hardheart Darwin and Mary Toogood v. State of North Dakota (1916)


            In 1909, the State of North Dakota held extensive legislative hearings over conditions in the petroleum refining business.  At these hearings numerous small businessmen testified that Standard Oil of North Dakota pursued wage and labor policies in North Dakota that threatened to drive their refining businesses out of the state.  Standard Oil refined approximately 75% of the oil refined in the state; it shipped almost 98% of that oil out of the state by pipeline to west coast purchasers.  Most small refineries also produced primarily for a national market.  There was also brief testimony from the director of the North Dakota Labor Commission (a state agency) that (1) the workers in the oil refining industry suffered from an unusually high rate of absenteeism because of lung and throat problems; and (2) that the rate of serious industrial accidents (those resulting in an end to a person’s productive work life or in death) was 15 per 5000 man-hours of work and 10 per 5000 woman-hours of work.  For manufacturing industries as a whole, rates in North Dakota had been 12 per 5000 man-hours of work.  Finally, Standard Oil testified that they required their male workers to work 12-hour days and their female 10-hour days, each six days a week. Standard Oil stated that they did not know what per cent of their female work force was married. No other refining business in the state acknowledged employing men or women for more than 10 hours a day.  Last there was extensive testimony from Redshirt P. Worthington, head of the militant national refinery workers union, that a ten-hour work day with no reduction in workers’ pay was a right of labor.  Without it workers would not have the time for the political participation and civic education that republican citizenship required.


            In that same year the North Dakota legislature passed the “Workers and Maternal Health Improvement Bill.”   The law stated, that to assure the health of workers, that it was illegal to employ any male worker in the refining industry for more than ten hours a day or more than six days a week; and that it was also illegal to employ any female worker in that industry more than ten hours a day or more than five days a week.  Employers, however, could so employ workers beyond these limits if they paid them 50% above the prevailing wage for such extra work.  Refiners were to be taxed $4 a standard barrel of oil produced in their refineries, and the tax was to be employed to pay the salaries of state refinery inspectors.   Violations of the law would result in penalties of up to $1000.


            The “Workers and Maternal Health Improvement Bill,” however, was vetoed by the Republican governor, and became the most important issue in the 1910 state election.  Running as the candidate of the farmer-labor party, socialist leader Ira P. Worthaggen campaigned for a ten-hour day as a “right of labor” and won election as governor. The North Dakota legislature then passed the “Health Improvement Bill” again and this time it was signed into law.[1] 


            In the four years after enactment, employment of females in oil refining fell in North Dakota by 20% and overtime work by male employees increased by 37%.  The accident rate for men went up by 11% and for women by 1%.  No information was collected by the state Labor Commission about pregnancy or childbirth rates among female workers.  Oil production in North Dakota dropped 23%, several smaller refineries closed, and the price of refined oil increased by 9%.  Nationwide the price of oil also dropped.


            Charles Hardheart Darwin was the owner of an oil refinery that in 1910 produced approximately 5% of the refined oil in North Dakota.  He employed fifteen workers, ten men and five women.  None of his employees have suffered job-site accidents nor lost an unusual number of days at work since 1900.  Despite passage of the law, he continued to insist his employees work twelve hours a day, six days a week, and he refused to pay the tax on barrels of refined oil.  Darwin was arrested for violation of the “Health Improvement Bill” and fined $4000 (for four violations of the act). 


            He appealed his conviction to the North Dakota appeals court, where he lost, 3-2, and then the North Dakota Supreme Court, where he lost 4-3.   In his petition to the court, he stated that since his conviction he has had to lay off all his female employees because of the law.  Moreover, several of his male employees had quit because he could not afford to pay them overtime, and they had gone to work for Standard Oil.  He could not afford overtime pay, he asserted, because of the new tax on refined oil.  He argued that the “Health Improvement Bill” was a “mere meddlesome interference” with his and his employees’ right to contract freely for wage work, and as such a violation of the liberty protected by the due process clause of the 14th amendment as well as a violation of his due process rights as a citizen of North Dakota.  He also argued that the law unconstitutionally discriminated against women workers and that the tax provision was an unconstitutional regulation of interstate commerce.  He cited Lochner and Wabash as precedents for his position. 


            Having lost in the North Dakota Supreme Court, Darwin and his lawyers appealed through a writ of error to the United States Supreme Court.  His appeal was joined by one of his former workers, Mary Toogood, who had been laid off from her job because she could no longer work the 75 hour week she had previously worked.  Toogood’s lawyers submitted a doctor’s report that she was in average health for a 29-year old female, and the mother of one child (born before she began to work for Darwin).  She noted that she and her husband could no longer make the $500 a year that, at a minimum, they needed to keep their family afloat, and that the alternative employment she had found had resulted in both reduced wages and reduced hours for herself.


            Lawyers for North Dakota admitted the facts entered in the record by Darwin and Toogood, but denied they had any constitutional consequences (that is, they “demurred”).  They argued there was no commerce clause issue involved in the case, and that the law was fully within the state’s police powers. 


            Write the Supreme Court opinion in the case.



1. You may take either side on any issue that you wish to, but your opinion should be consistent with the reasoning that a court might have given at that time.


2. Remember that you are writing an opinion, not an essay about the case.  You can and should acknowledge (and refute) arguments on the other side of the case, but you do not have to present a “complete” or “balanced” response to the case.


3. You opinion should be a logical argument leading to a conclusion about the constitutionality of the law.  You should probably separate out, both in making sense of the material and in outlining and then writing your answer, the commerce issue from the “liberty of contract” issue, and then within the “liberty of contract” issue the law as applied to men and to women. There are other ways to organize your opinion, but make sure you have a clear sense of the various parts of the question.


4. You do not need a long introduction laying out all the facts – just a brief overview.  You should make clear the general approach you take to issues (presumption of constitutionality/police powers v. “liberty of contract” etc.), you should support your argument with reference to specific opinions you have read or that are in your text book (you may, if you wish, bring in other cases from this era, 1870s-1920s, but you need not do so).  You may use cases that were decided after through the 1920s.


5. Your opinion should make clear the political and judicial philosophy you are expressing.  These can be notions about political economy (social Darwinism, dangers of monopoly capitalism, health hazards of “modern” industry or the “right to labor”) and about judicial rules of interpretation (presumption of constitutionality, "rule of reason," "flow of commerce.").  That is, there ought to be a policy rationale implicit in your opinion that reflects the debates of that era, and you need to make it a little more explicit than some courts did.    If you do not have a good grasp of how such ideas were incorporated in Supreme Court opinions, the Hoffer history of the Supreme Court help (Waite, Fuller and White courts).  You can get from them, for example, a better sense of how Social Darwinism affected decisions or why and how courts that struck down state laws under the 14th Amendment also used the commerce power to do so.


6. You may quote (always use quotation marks) from the cases you cite.  You need not do this extensively, but some very specific references to the readings is essential.


Your opinion will be evaluated on (1) organization and logic; (2) strength of argument; (3) use of relevant court cases; (4) articulation of underlying assumptions; (5) consistency with the way cases from that era were determined.

[1]Note: Socialist candidates were feared by some as alien radicals, but in this period socialism was popular with many American workers, and socialist parties did well in both state and national elections.  Eugene Debs, as a socialist presidential candidate, gained over a million votes.