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Monday, May 31, 2010

Happy Uniform Gauge Day! How a 3-inch nudge destroyed American federalism

Today is the 134th anniversary of one of our most important yet most unrecognized constitutional events: On May 31st, 1886, the operators of Southern railroads began their famous two-day conversion of all southern railroad tracks from the five-foot gauge that the South had hitherto used to the (almost) standard 4-foot, 9-inch gauge of the Pennsylvania Railroad. (The actual northern standard was 4-feet, 8.5 inches, but Southerners decided to mesh with Pennsylvania's standard). The point of the conversion was to allow trains to move from north to south without the extraordinarily costly transfer of cargo from the North’s standard-gauge railroad cars and tracks to the South’s five-foot network.

Boring technical event, you think? To the contrary, I argue that this two-day conversion was the most important constitutional event between the end of the Civil War and the New Deal. The switch to the uniform gauge dwarfs precedents like McCulloch in practical constitutional importance, because it destroyed federalism by eliminating the states as serious economic policy-makers.

As mail-order goods flowed into every remote Southern hamlet along the now-accessible Southern tracks, local merchants were turned upside down by Montgomery ward and Singer sewing machines. The South fought back by flooding the North with cheap textiles, courtesy of cheap transportation. Both regions consequently lost control of their economic destiny, paving the way for the federal government’s Progressive Era takeover of economic policy. The Race to the Bottom (or Top, if you prefer) was born on May 31st, 1886.

I would also guess that SCOTUS's hastening of a national market through enforcement of the dormant commerce clause was inspired by the rapidity and efficiency with which the railway operators made the two-day switch to a uniform gauge. Is it a coincidence that, five months after the May 31st 1886 gauge conversion, the U.S. Supreme Court held in Wabash, St Louis, & Pacific Ry. v. Illinois that Illinois could not regulate rates for interstate rail trips? I doubt it: A breathtaking reversal of the Court’s 1877 precedents in the Grange cases, Wabash was legally indefensible but, once the nation was knit together by a single rail system, economically inevitable. Wabash was only the beginning: After the 1886 gauge conversion, the U.S. Supreme Court embarked on an aggressive campaign against non-discriminatory state regulation of goods and services, striking down non-discriminatory state taxation of traveling salesmen (Robbins v. Shelby County, March 1887) and the non-discriminatory interstate sale of booze (Bowman v Chicago & Northwestern Ry, March 1888). The Court became corporate America’s little helper, sweeping away communities’ regulation of the national market even when such regulation took the form of geographically non-discriminatory laws. Why? I suspect that even non-discriminatory subnational regulation was intolerable to judges impressed by the corporate achievement of standardized time zones, uniform grain grading, and the uniform gauge.

So enjoy Uniform Gauge Day. You can celebrate (or mourn) it by buying a cup of coffee at Starbucks, a book from Amazon.com, or some cheap clothes at Wal-Mart. Praise or curse these activities as your politics dictate. But take a moment to reflect on the birth of this market 134 years ago today, when tens of thousands of railroad workers, working feverishly over two days, simultaneously nudged steel rails three inches closer together and thereby (with a little help from SCOTUS) shoved states, towns, and counties off our constitutional map.

Posted by Rick Hills on May 31, 2010 at 06:00 AM in Constitutional thoughts | Permalink

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