Public Nuisance in Progressive Era

This essay explores a forgotten moment in the long history of public nuisance: its rapid expansion in the Progressive Era. In 1887, the Supreme Court upheld Kansas’ state constitutional amendment labeling breweries per se nuisances. Eight years later, in an 1895 review of a habeas petition, the Court affirmed an injunction against a labor protest and a contempt charge resulting from it. At face, these two cases—Mugler v. Kansas and In Re Debs, respectively—seem wholly unrelated. But a closer look shows that the cases must be read together, because they reveal important developments in the scope and enforcement of public nuisance, as well as how it largely operated to the detriment of “unruly” people.

After Debs, courts enjoined hundreds of labor protests nationwide on similar grounds. And after Mugler, states used the threat of hybrid public-private nuisance suits to close red-light districts: discrete, informally un-policed areas that housed brothels, casinos, and other vice-related businesses. Whether this expansion of nuisance was a serious infringement on constitutional rights (like some thought) or consistent with the American regulatory tradition (as others, including most late-1800s Supreme Court justices, concluded) was a central legal and political question of the day. This essay reconstructs the debate surrounding that question.

The essay proceeds in four parts. Part I provides a brief historiography of the American regulatory state and public nuisance’s role within it. Part II details the historical development of three concepts: the common law doctrine of nuisance, the institutional role of equity courts, and the distinction between civil and criminal law. Part III explains how, in Mugler and Debs, the Supreme Court reshaped public nuisance in meaningful ways: at bottom, it expanded who could define and enforce nuisance claims as well as what constituted a nuisance. Finally, Part IV outlines the spirited debate that resulted from the two decisions: an extended argument between Progressive reformers, on the one hand, and both populists and conservatives, on the other, about the proper limits of public nuisance and judicial power.