v. Illinois (1892). In both rulings, the court crafted an expansive definition of public space and dramatically expanded the state’s power to regulate commerce. The court reasoned that broader public powers were essential for protecting Chicago’s position as a site of exchange.126
CHAPTER 2
The Legal Construction of Free Marketplaces
Situated at the nexus of critical water and rail arteries, Chicago grew with astonishing speed, from a frontier crossroads of 350 in 1833 to a metropolis of 300,000 by 1870. When fire scorched and leveled much of the city in October of 1871, Chicagoans rebuilt, bigger and faster, and the population soared past one million by 1890.1 The city’s waterways and railroads stretched into the countryside like tentacles, greedily sucking nature’s bounties—the fruits of fertile farmlands and tall pine forests—into the city, where they were either consumed by the city’s exploding population or shipped out along the same waterways and railroads, supplying the nation’s expanding economy and population with raw materials and finished products.
Chicago’s vitality would not have been possible without its vast network of commercial arteries, but the rise of Chicago as the preeminent commercial hub of the North American interior involved more than digging canals and fashioning structures of timber, brick, iron, and steel. Chicago’s rise was a product, too, of political cataclysm. The Civil War deprived Chicago’s chief rivals, Saint Louis and Cincinnati, of their lucrative trade with the South. As its challengers withered, Chicago profited from the bloodshed. In 1862 alone, the Union Army spent more than $4.7 in the city on supplies of clothing, meat, lumber, and, most critically, grain.2 By war’s end, Chicago had become the nation’s preeminent east-west commercial hub, and the city’s harbor was the busiest in the nation by far. More boats arrived in Chicago during 1871, for instance, than in the ports of New York, San Francisco, Philadelphia, Baltimore, Charleston, and Mobile combined.3
The ships that called at those great seaports tended to be larger than the canal and lake boats that frequented Chicago, but the fact remained: the waterfront of the nation’s great inland metropolis had become a fulcrum on which significant parts of the American economy turned. The Chicago River’s banks had, for example, become the site of leading world markets for lumber and grain. On the South Branch of the Chicago River, lake ships deposited cargoes of timber from the great stands of Wisconsin and Michigan in massive lumber yards clustered around river slips south of Twenty-Second and west of Halsted Street. By 1879, the stock in Chicago’s lumber yards exceeded four hundred million board feet, or over one-fifth of all the milled timber in the region stretching from Cleveland to Minneapolis. Much of this lumber from Chicago would, in turn, be shipped to farmers and merchants on the treeless prairie.4
The main branch of the Chicago River, meanwhile, formed the geographic center of the city’s rapidly growing trade in grain. In 1850, Chicago handled half as much wheat and flour as passed through St. Louis, but within just four years, Chicago handled three million bushels of wheat to its rival’s 2.1 million.5 Midwestern farmers sent even more wheat to Chicago during the years leading up to and during the Civil War. Using mechanical reapers forged in Cyrus McCormick’s factory beside the Chicago River, farmers harvested enough wheat to feed the Union Army. “Without McCormick’s invention,” noted Secretary of War Edwin Stanton, “the North could not win and … the Union would be dismembered.”6 In the first two years of the conflict, grain exports from Chicago soared from thirty-one million to sixty-five million bushels.7 These levels of production continued after the war, with global economic ramifications. In 1873, for instance, the city handled over sixty-eight million bushels of grain, and Chicago wheat flooded markets as far away as Central Europe and Russia.8
These great commodity flows were made possible through feats of engineering—the dredging of the river and the construction of the Illinois and Michigan Canal, for example—as well as the development of new technologies, like steam-powered grain storage elevators and railroads, which linked the nation’s watercourses to a rapidly growing transportation network centered largely on Chicago.9
No less important than these, though, were feats of legal and political engineering undertaken by Illinois lawmakers, some business leaders, and state and federal judges. Methodically and very intentionally, they created well-regulated, public waterfront spaces through which the Midwest’s bounty could freely flow.10 Their efforts culminated in two landmark Supreme Court cases, Munn v. Illinois (1877) and Illinois Central v. Illinois (1892), which declared public, state control over Chicago’s riverside grain elevators and its lakeshore harbor.11 These rulings helped spur Chicago’s economic development by making the city’s waterfront accessible to those who wished to use it for profit. Illinois Central and Munn also shaped how jurists made the often-subjective distinctions between public and private sectors. Those distinctions defined late nineteenth- and early twentieth-century American law.
Monopolizing Space and Information at the Gateway of Commerce
In 1848, the Chicago waterfront became what Supreme Court Justice Morrison Waite would later call the “very gateway of commerce,” when the Illinois and Michigan Canal breached the continental divide, making it possible to ship grain and other goods from points on the Mississippi River watershed to Chicago.12
Just as the canal brought goods from the city’s hinterland to its busy waterfront, so too did railroads; Chicago’s waterfront thus became a critical junction between North America’s waterways and its growing web of railroads. In November 1848, Ogden’s new Galena and Chicago Union Railroad sent the first locomotive steaming out of the city, connecting its waterfront to a new agricultural hinterland. Starting at the railroad’s terminal near the Chicago River, the Pioneer pulled a single baggage car carrying a cadre of prominent Chicagoans to a point eight miles west of the city. On the outskirts of town, the train encountered a farmer bringing a wagon load of wheat and hides into Chicago. Two of the Pioneer’s passengers purchased the goods and transported them to the city aboard the train. By 1848, then, a new economic geography had been established. Grain traveled from the farms of the Midwest by rail and by canal to the banks of the Chicago River where it awaited transshipment to consumers.13
Businessmen such as Ira Munn and George Scott erected large warehouses—with rails flanking one side and the Chicago River on the other—to store the grain in route from the Midwest to consumers in the eastern United States and Europe. As grain sat in those elevators awaiting rail or water shipment, Munn and Scott not only charged farmers storage fees, they harbored immensely valuable information about the supply of a crucial global commodity. Their control of this market information owed to economic geographies, technologies, and business practices developed in the 1840s and 1850s—all of which had made the Chicago waterfront a critical bottleneck in the global grain trade.
Chicago’s grain elevator operators made their private riverfront property—and information—the subject of broad, public concern by using it to manipulate markets. The men came to epitomize the nineteenth-century “robber baron.” Though often associated with pitchfork-wielding populists, the term was actually coined by scions of two elite Boston families, Charles Francis Adams Jr. and Josiah Quincy Jr., who dubbed the businessmen who monopolized transportation corridors “robber barons,” recalling the medieval Germanic warlords who had allegedly strung iron chains across the Rhine River and taken toll from all who passed.14
The grain elevators built by men like Munn and Scott provided railroads with a critical, labor-saving technology that, for legal reasons, they could not directly harness themselves. When the Pioneer brought the first load of wheat to Chicago, it was most likely stored in sacks by the farmer who grew it. Sacked wheat required an enormous amount of labor to transport. Each
