Taft went on to cite several cases that had rested on equal protection grounds, including Barbier
v. Connolly, Hayes v. Missouri, and Yick Wo v. Hopkins.
One tantalizing statement from the opinion is Taft’s acknowledgment that a guaranty of
equal protection does not constrain the federal government. “The due process clause,” wrote
Taft, “brought down from Magna Charta was found in the early state constitutions and later in
the Fifth Amendment to the federal Constitution … while the equality clause does not appear in
the Fifth Amendment and so does not apply to congressional legislation.”
bound to offer all of its citizens their day in court without any exceptions based on class. The
federal government, however, might possibly make class-based distinctions in offering injunctive
relief to its citizens. Whatever encouragement this may have given organized labor about the
possibility of federal protection of unions had been cruelly mooted by the evisceration of the
Clayton Act earlier that year in Duplex with the Court’s refusal to rein in the common law to
reflect the force of the Thirteenth Amendment.
Oliver Wendell Holmes complained bitterly of Taft’s reading of the Fourteenth
Amendment, resurrecting the ghosts of Lochner and once again questioning the motives and
modus operandi of the conservatives on the Court. Holmes wrote in his Truax dissent:
Legislation may begin where an evil begins. If, as many intelligent people believe, there
is more danger that the injunction will be abused in labor cases than elsewhere I can feel
no doubt of the power of the Legislature to deny it in such cases. … There is nothing that
I more deprecate than the use of the Fourteenth Amendment beyond the absolute
compulsion of its words to prevent the making of social experiments that an important
part of the community desires, in the insulated chambers afforded by the several states,
even though the experiments may seem futile or even noxious to me and to those whose
judgment I most respect.
Felix Frankfurter agreed with Holmes. In an editorial in the New Republic, Frankfurter wrote of
Truax that it was “destined to become even more classic than the Lochner case – a challenge is
76
257 U.S. 312, 333. Citing 113 U.S. 27 (1884); 120 U.S. 68 (1887); 118 U.S. 356 (1886).
77
257 U.S. 312, 331.
78
257 U.S. 312, 343-4.
29
Convention