New York Local History: Underground Railroad in the North Country

New York Local History: Underground Railroad in the North Country

Source: North Country Public Radio https://www.northcountrypublicradio.org/news/story/45430/20220224/remembering-the-secret-history-of-the-underground-railroad-in-the-north-country

A few minutes outside the small town of Peru in New York’s Champlain Valley, there is a small farm that looks like any other in the area. A cluster of silos and red barns with fading paint are flanked by snow-covered fields and apple orchards, dormant for the winter. But this farm has something unique. A blue and yellow New York State historical marker identifies the property as a stop on the Underground Railroad, where “runaway slaves were concealed and protected on their way to freedom in Canada.”

There was no actual train involved in the network, explains Jacqueline Madison, the President of the North Country Underground Railroad Historical Association. “It was a trail of conductors who helped them along the way [and] safe houses where they could stay,” she notes.

Communities from Watertown to Lake Champlain were part of that network of safe houses that helped people escape slavery in the American south during the decades leading up to the Civil War. Escapees typically traveled by foot or water. The railroad moniker was part of a secret code: safe places to stay were called stations and the owners of those properties were known as conductors. A full journey on the Underground Railroad typically took several months.

This is the history that Madison and the North Country Underground Railroad Historical Association are dedicated to preserving. The group operates a museum in Keeseville, in the Champlain Valley south of Plattsburgh. It features the stories from both sides of the Underground Railroad: Black passengers and white conductors. One exhibit is dedicated to the former owner of that historic Peru farmhouse, a man named Stephen Keese Smith. The abolitionist Quaker purchased the property in 1851 and quickly established one of the barns as a hiding place for runaway slaves headed to Canada. There is no way to know with certainty exactly how many people Keese Smith aided while working as a conductor. But his later writings provide an estimate. “He talked about helping people get to freedom and he thinks he spent about $1000 doing that,” Madison explained. “And if we spent $2.50 per person, he would have helped over 400 people.”

Exact numbers are nearly impossible to come by in historical records because those helping escaped slaves often avoided keeping a paper trail. Involvement in the Underground Railroad was extremely dangerous for everyone, black or white. The Fugitive Slave Act of 1850 required that escaped slaves be returned to their former owners – and carried stiff penalties for anyone who aided them. “If you were caught helping someone get to freedom,” Madison noted, “you could lose your property, you could be jailed, you could be fined. Terrible things could happen to you, your family, and friends if they suspected them of helping as well.”

The North Star Underground Railroad Museum fills up the bottom floor of an old 19th Century house. It’s packed with maps, faded newspaper articles, and portraits of notable members of the North Country section of the covert network. Standing before a map, Madison explains the various routes freedom-seekers would have followed to reach Canada. A western path originating in Pennsylvania went through Buffalo, up to Watertown, and crossed the St. Lawrence River at Ogdensburg. Two escape routes followed Lake Champlain: one through Vermont and another running from Albany to Rouse’s Point along the lake’s western shore. To find their way, escapees used folk songs learned on the southern plantations. They worked as a kind of secret oral map; with coded lyrics guiding freedom seekers on their journey north. One such tune called Follow the Drinking Gourd referenced landmarks like certain rivers and offered hints for how to identify friendly conductors. Drinking gourd was code for the Big Dipper – a celestial constellation that can be used to identify the North Star.

Although details can be hard to piece together, some stories of those who passed through the North Country to freedom have been recovered. An article written in 1837 by Vermont-born abolitionist Alvan Stewart for an anti-slavery newspaper recounts the story of an anonymous man who travelled through the North Country on his way to Canada. “I was headed to Ogdensburg, on my way north to Canada from South Carolina,” an actor declares in a re-enactment exhibit at the North Star Museum. “I had come up through the Champlain Canal, and then gone through Clinton and Franklin County.” That unknown man did eventually reach freedom north of the border, but his quest nearly ended in disaster just a few miles from his destination.

Outside of Ogdensburg, he stopped into a post office looking for work. Since New York had outlawed slavery in 1827, that would not necessarily have been out of place. However, slave owners offered rich rewards for the return for those who escaped, and slave catchers were permitted to operate even in anti-slavery states under the Fugitive Slave Act. When the anonymous freedom seeker entered the post office near Ogdensburg, the postmaster recognized him and explained that a reward for his capture had been posted. “I said to him, if you send me back then they’ll do terrible things to me,” the re-enactment continues. “Whip me. Hang me. Skin me alive. I begged him not to turn me in.” In this case, the postmaster ignored the reward, worth about $20,000 in today’s terms, and helped the man cross the St. Lawrence River into Canada.

Other escaped slaves decided to settle in North Country. In 1840, a Franklin County landowner named Gerrit Smith pledged to donate more than 120,000 acres of wilderness land in the Adirondacks to free black men. It would eventually become a settlement known as Timbuctoo. A man named John Thomas received 40 acres of un-cleared land from Smith. Thomas later sold that to buy a larger plot near Bloomingdale, NY, which he turned into a successful farm. Many years later, Thomas wrote his benefactor a letter, thanking Smith for the “generous donation” and revealing that he and his family greatly enjoyed the peace and prosperity of their “rural home.” Although Thomas was successfully established himself in the region, that was not the case for most recipients of Smith’s land. Harsh winters and tough soil drove many of the Black farmers to sell the land they had received and move away. The climate was not the only danger; at least once, slave catchers came to the area looking for Thomas. According to Madison, they first approached his neighbors seeking their help. As Madison tells it, Thomas’ neighbors informed the slave catchers that he was armed, would forcibly resist capture, and declared their intention to assist Thomas in repelling the catchers. The slave catchers are believed to have given up their pursuit.

In his later letter to Smith, Thomas hinted that his adopted community had begun to treat him as one of their own. “I have breasted the storm of prejudice and opposition until I began to be regarded as an American citizen,” he wrote. This may also be a reference to civic participation. At the time, New York State required men to own at least $250 worth of land to obtain the right to vote. Thomas’ obituary was published in the Malone Palladium in May 1895. It described him as “much respected in the community where he lived so long.” His descendants still live in that community. Through genealogy research, Madison and the North Star Museum discovered that two of John Thomas’ great-great grandsons still reside in the North Country. One of the descendants lives less than two miles from the cemetery in Vermontville where Thomas and his wife are buried.

New York Local History: Water from the Catskills

New York Local History: Water from the Catskills

Michelle Young

Source: https://untappedcities.com/2015/06/22/some-of-nycs-drinking-water-comes-from-drowned-towns-in-the-catskills/

Ashokan Reservoir in the Catskills

New York City has some of the best drinking water in the country, but it did not come without a price. Most are familiar with the Croton Aqueduct, the first to bring fresh water to the city in 1842 and updated in 1890. Catskill Aqueduct was next (a push after Brooklyn was incorporated into the City of New York), built between 1917 and 1924, bringing 40% of New York City’s water from a series of reservoirs 163 miles away in upstate New York. New Yorkers may not know the six reservoirs of the Catskill Aqueduct, including Ashokan Reservoir, New York City’s largest, were formed by flooding a dozen towns.

The plan for the Catskill Aqueduct began in 1905 when the New York City Board of Water Supply was formed, allowing for the acquisition of property by eminent domain and the construction of dams, reservoirs, and aqueducts. The area in question was formerly a farming area, with logging and the quarrying of bluestone, some of which ended up on the Brooklyn Bridge. Two thousand people were relocated, including a thousand New Yorkers with second homes. Thirty-two cemeteries were unearthed and the 1,800 residents reburied elsewhere, to limit water contamination. Residents were offered $15 by the city ($65 later for the Delaware Aqueduct) to disinter their relatives and move them elsewhere.

Buildings and industries were relocated or burned down, trees and brush were removed from the future reservoir floor–all the work done predominantly by local laborers, African-Americans from the south and Italian immigrants. To control the fighting that arose between labor groups, a police force that became the New York City Department of Environmental Protection (NYCDEP) Police, was created. In sum, four towns were submerged while eight were relocated to build the Ashokan  Reservoir. When the dam was completed, steam whistles were blown for an hour warning residents that the water was coming. Today, remnants of foundations, walls, and more can still be seen, particularly when water levels are lower–often in the fall. Although access to the reservoirs has been limited since 9/11, you can see some of those archeological finds from bridges. You can also hike and bike along a ridge of the reservoir.

The last of the eminent domain lawsuits in the Ashokan Reservoir area was not settled in 1940 and it was not until 2002 that New York City made any moves to acknowledge the history in the Esopus Valley. The NYCDEP installed an outdoor exhibition in Olive, New York that commemorated the lost towns and the feat of the aqueduct itself, with the intention to add exhibits at five other reservoirs (although we were not able to find that the exhibition or any others are still available). Signage now shows the sites of the former towns.

The Delaware Aqueduct is the most recent of the city’s aqueducts and its story is similar to the Catskill Aqueduct. The Pepacton Reservoir (aka the Downsville Reservoir or the Downsville Dam) was formed by flooding four towns and submerging half of the existing Delaware and Northern Railroad. This reservoir provides 25% of the city’s drinking water, and combined the Catskill and Delaware Aqueduct provides 90% of the city’s water. In total, the construction of these reservoirs and aqueducts resulted in the destruction of 25 communities and the relocation of 5,500 across five New York State counties. Something to think about the next time you run the tap in New York City.

New York State’s Birthday and First Constitution

New York State’s Birthday and First Constitution

Bruce W. Dearstyne

Social studies and history teachers routinely cover the Declaration of Independence and the U.S. Constitution in their courses. But every state also has a “birthday” (the day it got started as a state) and its own state constitution. The origins of states and their first constitutions can be very useful teaching tools, adding a new dimension to students’ historical insight and understanding.

New York State is an outstanding example. April 20 is New York’s Birthday! That was the date in 1777 when the Convention of Representatives of the State of New York, an ad hoc group elected the previous year to guide New York’s Revolutionary War efforts and develop its first constitution, finished work on that document.

The story of New York’s first state constitution is a dramatic one. New York had moved from steadfast loyalty to Britain to reluctant rebelling colony to a full-scale push for independence through the actions of three Provincial Congresses, the first elected in 1775, to guide New York in the growing alienation from Britain. The “Convention of Representatives” had been elected the year before as New York’s fourth Provincial Congress. Meeting initially in White Plains, they authorized New York’s representatives to the Continental Congress to approve the Declaration of Independence in early July, then, to keep out of reach of British forces, fled north to Fishkill and finally to Kingston where they completed their work. Along the way, they changed their name from Provincial Congress to Convention of Representatives of the State of New York. 

When they began their work it wasn’t entirely clear just what a “state” was. People knew about colonies/provinces (New York had been one), and nations or nation-states as they were sometimes called (such as Britain). There were few precedents of models to draw on. Other colonies-becoming-states were writing their own first constitutions. The Articles of Confederation, which would link the new states together, was not completed until November 1777. The U.S. Constitution was a decade in the future. The creative New York drafters drew on their own experience in colonial government, their knowledge of European writers on the concepts of natural rights and representative government, and  a few American leading-edge advocates such as Massachusetts’ John Adams. But mostly they drew on their own creativity and improvisation.

The delegates worked in haste and approved the final draft of their document, which still had strikeouts and marginal notes when they signed it. There was no time to make a clean copy before sending the document to the printer. They took a day off but the next day, April 22, the convention’s secretary mounted a flour barrel outside the court house where the group had worked and read it aloud to Kingston citizens.

New York State had in effect proclaimed itself into existence.

The document began by quoting the Declaration of Independence. This connected New York with the other colonies asserting their independence. It stated that the convention acting “in the name and by the authority of the good people of this State doth ordain, determine, and declare that no authority shall on any pretense whatever shall be exercised over the people or members of this State, but such as shall be derived from and granted by them.” In 1777, a document purporting to represent the consensus and will of the people, and their right to govern themselves,  was a startling, radical departure from the past.

The original copy of the first constitution is preserved in the State Archives.   The Archives has provided a scanned version at https://digitalcollections.archives.nysed.gov/index.php/Detail/objects/10485.You can read it online in typed form at the Yale Law School Avalon Project. William A. Polf’s 1777:  The Political Revolution and New York’s First Constitution, also available online, provides a good introduction. It is also described in Peter Galie, Ordered Liberty: A Constitutional History of New York and in my book, The Spirit of New York: Defining Events in the Empire State’s History.

The 1777 constitution is just over 5000 words in length, It outlined the structure and purposes of state government but did not provide much detail.

It created a two-house legislature — one house, the Assembly, to be more numerous and more broadly representative of the people, and the other, the Senate, to be smaller and more attuned to the interests and property. That basic structure is still in place today.

It declared that “the supreme executive power and authority of this State shall be vested in a governor” who “shall take care that the laws are faithfully executed.” That wording is similar to what exists in the current State Constitution. But the 1777 writers had had enough experience with the King of England and some colonial governors who had over-asserted their power that they hedged the authority of New York State’s governor. Instead of giving the governor veto power over bills passed by the legislature, they created a “Council of Revision” consisting of the governor, chancellor, and judges of the supreme court with veto power. Rather than giving the governor sole appointment power, they vested that in a “Council of Appointment,” consisting of the governor and four senators chosen annually by the Assembly,  to approve all appointments.

The document made only a brief reference the courts; fleshing that out later would require legislative action. Voting rights were restricted to men who met certain property-holding or other requirements.

The Constitution was not very long but it was a sound beginning. Hastily-organized elections were held in the spring and summer. The first legislature assembled in Kingston in September and got to work. The newly-elected governor, General George Clinton, had to await a lull in the fighting to come to Kingston, take the oath office, make  the first gubernatorial address, and then hurry back to lead troops again.

The fledgling government did not have tranquility for long. It had to flee as British troops arrived and assaulted and burned Kingston on October 16. The legislature soon re-assembled in Poughkeepsie and resumed work. By then, patriot forces had defeated British incursions from the west (at Oriskany, August 6), the east (at Bennington, on August 16) and the north (at Saratoga, October 17, a major victory that became the turning point of the Revolution).

1777 turned out to be something of a “miracle year.” New York State was here to stay. The new constitution endured without major changes until 1821.

There are many ways of approaching the use of the first State Constitution in social studies and history courses. Some possibilities:

*It is an inspiring, against-the-odds story. It is a story of people determined to control their own collective affairs through representative government.  At the beginning of 1777, the odds of New York’s success did not seem great. By the end of the year, New had written a constitution, established a government, held elections, fended off invasions from three directions, and survived invasion and destruction of its capital.

*It represented compromise and consensus. The writers had a number of disagreements and varying viewpoints and perspectives going into the process. But along the way they put aside their differences, compromised, and came together to develop a consensus document. That process is worthy of study now, when too often it seems difficult to reach agreement on divisive political issues.

*It was successful, flexible, and enduring. The first constitution proved to be a viable framework for years when New York grew remarkably fast. Even when the first major revisions came in 1821, the structural changes were relatively modest. The revisions abolished the Council of Revision and the Council of Appointment and replaced them with procedures more similar to what we have today.

*It left important work undone. The convention discussed abolishing the horrible practice of slavery but in the end it did not. That had to await legislation in 1799 and slavery was not formally abolished until 1827. Restrictions on men’s voting rights were gradually abolished in ensuing decades. Women finally got the right to vote in 1917. The constitution had no bill of rights other than protection of freedom of religion. The legislature enacted a bill of rights in 1787 and they were embodied in the 1821 constitutional revision. Since then, the constitution has been revised, updated, changed, and amended many times. That is a reminder that constitutions are subject to update and change over time, with voters’ approval.

*It was influential. The New York constitution includes some of the principles that were embodied in the U.S. Constitution a decade later, 1787. New York led the way in a sense. That is not surprising because New York patriot Gouverneur Morris was one of the principal writers of the New York document and a decade later, then a delegate to the Constitutional Convention from Pennsylvania, he was also one of the writers of the U.S. Constitution.

*It is a source for teaching about self-government, constitutional law, and civic responsibilities. The constitution could be a source for deepening students’ understanding of self-government and their roles and  responsibilities as citizens. Educating for American Democracy , a recent report on civics education, notes that students need more study of “the social, political, and institutional history of the United States in its founding era, as well as the theoretical underpinnings of our constitutional design. The state constitutions and the federal 1787 Constitution, as amended, form diverse peoples and places into an American people: one overarching political community.”

Using Court Cases to Teach Social Studies and History

Using Court Cases to Teach Social Studies and History

Bruce Dearstyne

Key decisions of state and federal courts can be useful sources for students in civics, social studies, and state and U.S. history courses.  Textbooks often include references to well-known, historic U.S. Supreme Court decisions, but students seldom read the actual opinions. Moreover, cases that make their way through state court systems rather than the federal system can be very useful in education because they illustrate important home-state issues and how they were resolved at the state’s highest courts. Those courts were often the forum of last resort, the place where issues that impacted people’s lives were finally hashed out and settled. 

Some of the most interesting and important cases, including the two described later in this article, made their way through state courts but were appealed to the U.S. Supreme Court for final reckoning.

Carefully selected cases and decisions can illustrate these themes and lessons:

  • Fundamentals of constitutional law – how constitutions represent the fundamental will of the people, how they are written and amended, how laws are based on them, and the role of the courts in deciding the constitutionality of the laws.
  • The arguments that attorneys make in favor of or against the constitutionality of the laws that are the focus of key cases.
  • The factors that judges consider and weigh in deciding on the constitutionality of the laws, including their interpretations of what the relevant constitutional provisions meant when written, how they have been interpreted by other courts over the years (called judicial precedent), and how they should be applied in a particular case.
  • The impact of decisions, including the precedents they set and the degree to which those precedents hold up or are modified or altered in subsequent court decisions.
  • The insights and implications of the cases for citizen rights and civic responsibilities under our constitutional government.

Teaching constitutional history is both challenging and rewarding. Teachers have a good deal of leeway in the issues and cases they select and how they guide students in understanding and drawing conclusions from them.  Cases might be chosen to illustrate how the courts have interpreted, circumscribed, or expanded civil liberties; law-and-order and criminal justice issues; the role of government in regulating businesses, organizations, and people’s lives; and complex issues involving race, gender, diversity and social justice. These are critical issues at this time when there is widespread recognition of the need for more and better civics education to prepare young people to be responsible adult citizens. 1

Students can be assigned to read about the issues and summaries of the decisions but then should go on to read the court decisions themselves. Some court opinions may be challenging to follow because of their complex legal language, but most are clear and straightforward. Judges intentionally compose major court decisions so that their principles are understandable by the public, not just attorneys and judges.  Judges cite constitutional provisions, laws, legal principles and precedents, but the gist of their decisions should be clear.  They hope that the concerned public will read their decisions, and not just summaries by media commentators or legal experts.  Teasing out the judges’ fundamental judicial principles and explanations is a way for students to gain an understanding of the role of the courts and constitutional law.

It is also a useful type of documentary analysis, interpretation, and writing assignment, making for additional connections with state and local educational standards.

Teachers might also consider assigning students to write their own legal briefs or have a debate between students playing counsel for contending viewpoints.

The history-making Lochner case, 1904-1905

A good example of a case that is readily adaptable by educators is what is commonly referred to as the Lochner case. This famous case was decided by the New York State Court of Appeals in 1904 (People v. Lochner) in a decision that was reversed by the U.S. Supreme Court the next year (Lochner v. New York), 1905.The case involved an 1895 New York State law limiting the hours of employees working  in bakeries to 10 hours per day or 60 per week and imposing sanitary regulations.  It was an early example of progressive-era regulation. That time period, ca. 1895-1920, was an era when governments enacted multiple laws to regulate businesses and laboring conditions and hours. The New York law was intended to protect bakeshop workers from fatigue and possible harm to their health from working overly-long hours in dusty, sometimes unsanitary, conditions.

Advocates called it sensible, justifiable regulation. Opponents of the law – and other restrictions on businesses and regulations governing labor — rallied against it behind the concept of “substantive due process.” The U.S. Constitution’s 14th Amendment proscribed state laws abridging “life, liberty, or property, without due process of law.” The amendment had been adopted in 1868 to help protect the rights of formerly enslaved people after the Civil War. The New York State constitution had a similar, but briefer, provision.

Years after the amendment passed, business attorneys began to argue that it also applied to the rights of employers to run their businesses without state interference and to employees’ rights to contract to work as they pleased. They contended it trumped the state’s “police power” – the power to regulate social and economic affairs for the general welfare, health, and safety of the people. In the closing years of the 19th century and the opening years of the new one, the “substantive due process” shield was pressed into service by the business community to forestall or overturn incipient state regulatory intervention. Usually, lawyers attacking regulatory laws in New York courts cited the 14th amendment, occasionally referencing the state constitution provision as well.

Joseph Lochner, a Utica bakery owner, believed that New York State could not tell him how to operate his business.  He and his employees had the right to contract for whatever work hours they pleased. Lochner defied the 1895 law was arrested for employing a baker for more than the permissible hours. He challenged the law as a violation of his constitutional rights.

New York State Court of Appeals: the law is constitutional

The New York State Court of Appeals upheld the law in January, 1904. Its decision has been neglected by historical scholars even though it was issued by what was then arguably the nation’s most important court, second only to the U.S. Supreme Court. The decision had additional gravitas because it was written by the court’s Chief Judge, Alton B. Parker, who was one of the most prominent legal statesmen in the nation and who ran (unsuccessfully) for president in November 1904, eleven months after his court decided the case. 

The Court reasoned as follows:

The 14th amendment to the U.S. Constitution, and a comparable clause in the New York State Constitution, were not intended to infringe the state’s police power.  Parker cited several Supreme Court decisions “sustaining statutes of different states which…seem repugnant to the 14th amendment but which that court declares to be within the policy power of the states.” He emphasized the Supreme Court’s 1898 decision in Holden vs. Hardy, which upheld a Utah law limiting the number of hours of work for miners as a legitimate exercise of state police power. New York State case law was “all in one direction,” too, the chief judge said, in support of broad state intervention.

Changing conditions warrant changing state regulations. The Constitution must be read in light of changes in society and the economy. “…by the application of legal principles the law has been, and will continue to be, developed from time to time so as to meet the ever-changing conditions of our widely diversified and rapidly developing business interests.”

Courts should not second guess the legislature. “The courts are frequently confronted with the temptation to substitute their judgment for that of the legislature,” the Chief Judge wrote. But whether the legislation is wise “is not for us to consider. The motives actuating the legislature are not the subject of inquiry by the courts, which are bound to assume that the law-making body acted to promote the public good.” Where interpretation is needed, “the court is inclined to so construe the statute as to validate it.”

The public interest is served by sanitary bakeries. “That the public generally are interested in having bakers and confectioners’ establishments cleanly and wholesome in this day of appreciation of, and apprehension on account of microbes, which may cause disease and death, is beyond question,” Parker asserted. The statute is designed “to protect the public from the use of the food made dangerous by the germs that thrive in darkness and uncleanness.”20

Regulating working hours is tied to public health concerns.  Judge Parker went on to assert that “the legislature had in mind that the health and cleanliness of the workers, as well as the cleanliness of the work-rooms, was of the utmost importance and that a man is more likely to be careful and cleanly when well, and not overworked, than when exhausted by fatigue, which makes for careless and slovenly habits, and tends to dirt and disease.”

Three judges concurred with Parker, making a majority of four in support of the law. But three dissented, arguing that Lochner was right. The state had no business regulating bakers’ hours or conditions, and the law violated Lochner’s right to contract with his workers as he pleased. They said it was inconsistent in that it applied to bakery employers but not to proprietors. A worker could evade the hour limitation requirements by working for more than one bakery. The connection between bakers’ work hours and public health seemed tenuous.

U.S. Supreme Court: the law is unconstitutional

Lochner appealed to the U.S. Supreme Court. In its 1905 decision, the majority of that in effect agreed with the New York dissenters.

The high court was more conservative than its New York counterpart and had a track record of striking down state labor laws. The Lochner decision was written by Associate Justice Rufus Peckham, originally from Albany, New York, and a former member of the New York Court of Appeals before joining the U.S. Supreme Court in 1895.

Peckham posed a central question: “Is this a fair, reasonable and appropriate exercise of the police power of the State or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?”

The judge asserted that the New York bakeshop law clearly fell into the second category. Bakers are not “wards of the state” and he said and went on to ridicule the assertion that their work was dangerous. The law did not constitute a legitimate exercise of police power and contravened Lochner’s and his employees’ right of contract. “…no state can deprive any person of life, liberty, or property without due process of law,” said the judge.“There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker….Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty per week.”

Four Supreme Court judges agreed with Peckham, giving him a majority of five.  But four of his colleagues dissented, contending that that the liberty to contract is subject to reasonable regulations and restrictions imposed by the state. In effect, the four dissenters were aligning with the views of the four-judge majority on the New York Court of Appeals a year earlier.

Lochner in historical perspective

Historians have extensively analyzed Lochner v. New York but have overlooked its New York predecessor, People v. Lochner. 3  The reasoning in both decisions (and the dissents in both cases) are worthy of study. Between the two high courts, nine judges held the law was constitutional and seven held it was not, showing a near-even division of judicial opinion on the issue. That is another feature that makes the case useful for study by students.

For several years after Lochner v. New York, Justice Peckham’s views held sway and outdistanced Chief Judge Parker’s. The Supreme Court – and many state courts — cited Lochner in repeatedly striking down regulatory measures.

But public criticism mounted over the years that the courts were obstructionist and too inclined to use their narrow views of constitutional safeguards to kill much-needed reforms. The criticism intensified when the court struck down a number of laws that were part of President Franklin D. Roosevelt’s New Deal recovery and reform program to combat the Great Depression in the early 1930’s. The courts gradually relented and Parker’s philosophy of supporting reasonable regulatory oversight eventually made a comeback. 

In the 1937 case of West Coast Hotel vs. Parrish, an opinion written by Chief Justice Charles Evans Hughes (coincidently, a former New Yorker himself) held that a Washington State minimum wage law was constitutional. “Liberty implies the absence of arbitrary restraint,” Hughes wrote, “not immunity from reasonable regulations and prohibitions imposed in the interests of the community.”   He continued that “the Constitution does not recognize an absolute and uncontrollable liberty….the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people.” 4

In effect, West Coast Hotel v. Parrish  superseded Lochner v. New York as the predominant judicial philosophy about government regulation. For the most part, courts since then have leaned toward Parker’s and Hughes’ expansive reviews and away from Peckham’s narrow, constraining concept. But the Lochner case illustrates two contending perspectives on government’s role in social and economic affairs which still undergird and shape discussions today:

Governments have an inherent obligation to regulate organizations and protect people’s welfare. This includes regulating working conditions, hours, and wages to ensure that workers’ health and rights are protected.  Constitutional guarantees of life, liberty, and property and the requirement that governments proceed in line with due process of law, should be interpreted and applied in light of this larger, inherent government role.

Versus

People have inviolable rights guaranteed by the U.S. and state constitutions. The provision in the U.S. Constitution’s 14th Amendment that forbids governments from depriving any person of life, liberty, or property, without due process of law, should be construed broadly. It is a bulwark against governments’ unwarranted overreaching and meddling in social, economic, and personal affairs.

The two Lochner decisions provide a good basis for discussion and debate of these two contrasting viewpoints, in part as a way of shedding light on similar issues under public discussion today. These two case opinions, and other like them, can help teachers guide students in considering these issues:

  • What is included in state constitutions and how do they relate to the U.S. Constitution?
  • What do citizens need to know about the federal and state constitutions and their rights and obligations under them?
  • How should constitutions, written hundreds of years ago, be interpreted and applied by courts to modern conditions and issues?
  • How should legislators (Congress, state legislatures) and chief executives (Presidents, governors) make sure that the laws they pass are constitutional?
  • What criteria and processes should courts use in determining whether a law is constitutional or not?
  • How and why do courts’ viewpoints and decisions change over time?
  • How should citizens react to court decisions on constitutionality that are controversial or unpopular?

Sources for teaching constitutional history

Websites

  • American Bar Association (https://www.americanbar.org) includes information on civic education
  • American Society for Legal History (https:/aslh.net). A useful source for scholarship and teaching in the field of legal history.
  • CASETEXT (http://www.casetext.com) and CASEMINE (http://www.casemine.com) present the texts of most important cases, including summaries of the issues and decisions.   Many of the cases can be accessed by a simple Google search.
  • Center for Civic Education (https://www.civiced.org) provides information for understanding and participating in a constitutional republic.
  • Cornell University Legal Information Institute (https://www.law.cornell.edu ) has a slogan that “everyone should be able to read and understand the law.” It is an invaluable source of information on legal concepts and key cases.
  • Historical Society of the New York Courts (https//history.nycourts.gov) has a wealth of information online, including court histories and biographies of judges of the supreme, appellate division, and Court of Appeals. There are also analytical essays on key cases.
  • iCivics. (https://www.icivics.org). Sources for engaging students in civic learning.
  • New Jersey State Bar Association (https://tcms.njsba.com) is an excellent source for legal issues in that state.
  • New York State Bar Association (https://nysba.org), particularly its Law, Youth and Citizenship program, which promotes citizenship and law-related education, has useful information.
  • Ohio Supreme Court, Under Advisement: Ohio Supreme Court Cases on Demand (2019)  (https://www.supremecourt.ohio.gov/VisitorInfo/CivicEd/educationResources/underAdvisement/default.asp) is designed for high school students. It follows selected cases through the state court system.
  • Rutgers University/New Jersey Center for Civic Education (https://civiced.rutgers.edu). Curriculum guides and other materials to foster student understanding and engagement in a democratic society.
  • University of Pennsylvania/Annenberg Public Policy Center/Annenberg Classroom (https://www.annenbergclassroom.org). Information on the constitution and constitutional issues and cases.

Books

  • Bergan, Francis. The History of the New York Court of  Appeals, 1847-1932.New York: Columbia University Press, 1985
  • Bernstein, David E. Rehabilitating “Lochner:” Defending Individual Rights Against Progressive Reform. Chicago: University of Chicago Press, 2011
  • Dearstyne, Bruce. The Spirit of New York: Defining Events in the Empire State’s History. 2nd ed., Albany: SUNY Press, 2022
  • _______. The Crucible of Public Policy: New York State Courts in the Progressive Era. Albany: SUNY Press, 2022
  • Friedman, Lawrence M. A History of American Law. 4th ed., New York: Oxford University Press, 2019
  • Galie, Peter J. Ordered Liberty: A Constitutional History of New York. New York: Fordham University Press, 1996
  • Gilman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Power Jurisprudence. Durham, N.C.: Duke University Press, 1995
  • Hall, Kermit L., Editor-in-Chief., The Oxford Companion to American Law. New York: Oxford University Press, 2002
  • Karsten, Peter. Heart Versus Head: Judge-Made Law in Nineteenth Century America. Chapel Hill: University of North Carolina Press, 1997
  • Nelson, William. The Legalist Reformation: Law, Politics and Ideology in New York, 1920-1980. Chapel Hill: University of North Carolina Press, 2001
  • Stewart, Ted. Supreme Power: Seven Pivotal Supreme Court Decisions That Had a Major Impact on America. Salt Lake City: Shadow Mountain Publishing, 2017
  • White, G. Edward. Law in American History. Volume II: From Reconstruction Through the 1920’s. New York: Oxford University Press, 2016
  • Winkler, Adam. We, the Corporations: How American Businesses Won Their Civil Rights. New York: Liveright, 2018

Notes

1. Educating for American Democracy, Educating for American Democracy: Excellence in History and Civics for all Learners (New York: Educating for American Democracy, 2021)

2.  New York State Court of Appeals, The People of the State of New York, Respondent v. Joseph Lochner, Appellant. 175 NY 145  January 12, 1904 and U.S. Supreme Court, Lochner v. New York  198 U.S. 45  April 16, 1905. This discussion draws on the analysis of the case in my book, The Crucible of Public Policy: New York Courts in the Progressive Era (Albany: SUNY Press, 2022) 

3. Paul Kens, Lochner v. New York: Economic Regulation on Trial (Lawrence, KS: University Press of Kansas, 1998); Howard Gilman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Power (Durham, NC: Duke University Press, 1995); Cass Sunstein, “Lochner’s Legacy,” Columbia Law Review 87 (June 1987), 873-919; David E. Bernstein, “Lochner vs. New York: A Centennial Retrospective,” Washington University Law Quarterly 83 (2005), 1474-1527.

4.  U.S. Supreme Court, West Coast Hotel vs. Parrish 300 US 379 March 29, 1937

Cemeteries of Delaware County, New York: A Driving Tour

Cemeteries of Delaware County, New York: A Driving Tour

The Historical Society of Middletown, New York

New Kingston Valley Cemetery

New Kingston Valley Cemetery: Thompson Hollow Rd, ½ Mile North of Kingston

Park along the main road (though it is a busy stretch!) or drive through the iron gate to follow a loop road that exits through this same gate. The monument to Myron Faulkner, storekeeper, postmaster, news correspondent and unofficial “mayor” for many years, is straight ahead and to the left. At least two folks buried here met death by water: Revillow Haynes (on the left, near the stone wall) who in 1910 was strapped in a stream under an overturned wagonload of hay, and James Sanford (center rear), who was just seven years old when he drowned in the Mill Brook in 1867.As the road circles back around to the gate, note the stone to Lincoln Long, State Assemblyman and school superintendent; and, to your left in the front corner, Charles Halleck, who traveled the country as an opera singer and taught music at the general store here.

Sanford Cemetery: Delaware Co. Route 3 (New Kingston Rd) 1 Mile from NYS Route 28

Park in the grassy area take a leisurely stroll through this lovely cemetery where some of the earliest settlers in Middletown are buried. These include the Smiths, Sanfords and Waterburys who founded the Old Stone School in Dunraven. The central cemetery section contains some very old graves relocated from areas inundated by the Pepacton Reservoir. A few were carved by an itinerant stone carver nicknamed the “Coffin Man” for the coffins he would etch in the bottom of the headstones. Look for George Sands’ monument to see an example of his work. To the right of this section, meander towards the back under the trees to find the resting place of Thankful Van Benschoten, who started the commercial cauliflower growing industry in the Catskills in the 1890s.Facing the cemetery from the parking area, in the far left corner is the grave of Karl Amor, an Estonian war refugee who gained fame in the folk art world for his distinctive grapevine and reed baskets.

Halcottsville Cemetery: Back River Road, ½ Mile North of Halcottsville Off NYS Route 30

Watch for the cemetery sign on the left, and proceed through the open iron gate up the one-lane access road. Don’t be surprised if you startle a deer or a flock of wild turkeys when you break into the clearing at this secluded hilltop burial ground. Enter through the impressive stone wall and note the granite-and-iron enclosed plot of Isaac and Maria Weld Hewitt. Like John D. Hubbell, buried in the Kelly Corners Cemetery, Isaac led a congregation of the Old School (Primitive) Baptist Church which was once dominant in the area. Nearby is a marble monument to J. Foster Roberts, whose father established a homestead in Bragg Hollow in 1815.Look for monuments to David, Norman and George Kelly who in 1899 built the Round Barn just south of the hamlet. In the far left front corner of the cemetery is the grave of Virgil Meade, whose family ran the Round Barn farm for many years after the Kellys.

Margaretville Cemetery: Cemetery Rd, Just Off Main St. Margaretville

Park in the lot directly in front of the receiving vault. The driveway loop into this part of the cemetery is open from May 1 to Nov. 1. Foot entry at other times of the year is via the ramp in front of the vault. Note the old section to your right. Look upslope to see ALLABEN in white marble; Dr. Orson Allaben helped develop the village in the mid-1800s.Continue around the loop—in the center are the monuments of later entrepreneurs: Clarke Sanford (Catskill Mountain News), Sheldon Birdsall (Margaretville Telephone Company) and Lafayette Bussy (Bussy’s Store). Exit to the parking lot if driving, or, just before the exit, walk up the drive to your right that sweeps uphill and across the terraced hillside and into the oldest part of the cemetery. Look to the left of the driveway for the distinctive concrete bench where Pakatakan Art Colony artists J. Francis and Adah Murphy are buried. To the left of the driveway’s exit onto Cemetery Road is a section devoted to reinterments from Arena and other communities that were claimed for New York City’s Pepacton Reservoir in the 1950s.

Kelly Corners Cemetery: NYS Route 30, 3 Miles North of Margaretville (a/k/a Eureka Cemetery)

Park in front of the fence and enter on foot through either of two unlocked gates. The prominent monument near the right front memorializes John D. Hubbell, an elder in the Old School Baptist Church who established the cemetery, and members of the family whose homestead is nearby. Two rows behind the Hubbells, look for the monument to Jason Morse, who, with three brothers, marched off to the Civil War. The pink marble stone near the top of the central knoll, belongs to Grant and Lina Kelly who kept a popular boarding house near here for decades. The climb is steep but the view of the East Branch and mountains to the east from the top of this hill was a striking scene in the 2000 film “You can Count on Me” starring Mathew Broderick, Mark Ruffalo and Laura Linney.

Bedell Cemetery: Little Redkill Road, 4 Miles from Main Street, Fleischmanns

Park along the road and enter through the gate with the arched sign overhead. You will be struck by the number of Kellys in this cemetery! Blishs, too. Seven monuments on a concrete wall one row from the rear of the cemetery memorialize Civil War veteran Silas Blish and family members. An especially poignant double stone remembers two of Chancy and Catharine Hicks’ daughters who died in 1861 and 1863, both at the age of two. Find them to the right of the entrance, about five rows from the road, in the middle of the old section. By far the longest inscription belongs to Bryan Burgin (1908-86), legendary state game warden (second row from the front, midway between the first and second gates). Find an unusual hand chiseled memorial set in 2002 in the shape of a large wrench in the top right corner of the cemetery.

Clovesville, B’nai Israel & Irish Cemeteries: Old NYS Route 28, 2 Miles West of Fleischmanns

Three distinct cemeteries can be accessed by turning onto dead-end Grocholl Road. Park in pull offs, or drive into the main Clovesville Cemetery entrance and park to the side (the nearby church parking lot is not cemetery property). Look up the bank to the right of the driveway to see a large stone for John and Delia Blish. John Blish sold land to the Fleischmanns distilling family who established a summer compound near the village that was later named for them. Note two unusual stones to the left of the roadway—a “white bronze” (zinc) monument to John and Rachel Munson beneath a square of four pine trees, and, in an enclosure on the knoll beyond, a concrete tree stump and bible inscribed to James and Mary Ostrum Richard. Closer to the church, look for the headstone of Samuel Todd, Revolutionary War veteran. Follow the driveway to the rear of the cemetery to find the entrance to B’nai Israel, the Jewish cemetery established in the 1920s.It is closed to visitors on Shabbat (Saturday). On other days, walk through the center gate and to the rise towards the rear of the cemetery. There you will find a large monument—Edelstein/Berg—the resting place of Gertrude Berg, aka “Molly Goldberg” of radio and TV fame, her parents and husband. Gertrude Berg got her start in show biz at her family’s Fleischmanns boarding house. Across Old Rte. 29 from the Clovesville Cemetery is a small burial ground where several Irish immigrants and their descendants are buried. Due to the poor condition and uneven terrain, it’s advisable to view it from the roadside. Many Irish came to the area in the mid-19th century to work in tanneries and mills. One who is buried here, Michael McCormack, who served in the Civil War along with two of his sons.