Abstract
The early-twentieth-century Progressive outlook on constitutional law and related matters—a combination of support for the growth of an administrative state dominated by experts insulated from both politics and the market, opposition to serious judicial review of the constitutionality of legislation, and indifference or hostility to “individualistic” civil liberties and the rights of minorities—is now anachronistic, and finds no comfortable ideological home in modern American politics. Nevertheless, mythical morality tales invented during the Progressive era for overtly ideological reasons and elaborated on ever since have continued to color our collective understanding of American constitutional history.
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References
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See, for example, Robert C. Bannister, Social Darwinism: Science and Myth in AngloAmerican Thought (Philadelphia: Temple University Press, 1979), 58–60.
David E. Bernstein, “Lochner’s Legacy’s Legacy,” Texas Law Review 82 (2003): 1–64.
James W. Ely Jr., The Chief Justiceship of Melville W. Fuller, 1888–1910 (Columbia: University of South Carolina Press, 1995), 78; Charles W. McCurdy, “The Roots of ‘Liberty of Contract’ Reconsidered: Major Premises in the Law of Employment, 1867–1937,” Yearbook Supreme Court Historical Society 1984 (1984): 33. For prominent examples of the traditional literature, see Sidney Fine, Laissez Faire and the General-Welfare State: A Study of Conflict in American Thought, 1865–1900 (Ann Arbor: University of Michigan Press, 1956): 133; Arnold M. Paul, Conservative Crisis and the Rule of Law (Ithaca, NY: Cornell University Press, 1960): 223–39.
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Jacobson v. Massachusetts, 197 U.S. 11 (1905); see James W. Ely Jr., “Rufus W. Peckham and Economic Liberty,” Vanderbilt Law Review 62 (2009), 622–23 (discussing Jacobson). Brewer and Peckham were by far the justices most likely to vote to invalidate state legislation premised on the police power. See D. Grier Stephenson, “The Supreme Court and Constitutional Change: Lochner v. New York Revisited,” Villanova Law Review 21 (1976): 234–36.
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See generally Gilbert E. Roe, Our Judicial Oligarchy (New York: B. W. Huebsch, 1912).
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See, for example, Dartmouth College v. Woodward, 17 U.S. 518, 581–82 (1819) (recounting Daniel Webster’s argument that only a “general law” may be the law of the land and that laws “directly transferring the estate of one man to another” cannot be considered the law of the land); Gardner v. Village of Newburgh, 2 Johns. Ch. 162 (N.Y. 1816).
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See Michael G. Collins, “Before Lochner—Diversity Jurisdiction and the Development of General Constitutional Law,” Tulane Law Review 74 (2000): 1263–1322.
Railroad Comm’n Cases, 116 U.S. 307. 331 (1886) (rate regulation); Loan Association v. Topeka, 87 U.S. (20 Wall.) 655 (1874) (public purpose); Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871) (just compensation).
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Mugler v. Kansas, 123 U.S. 623, 661 (1887); cf. The Sinking-Fund Cases, 99 U.S. 700, 738 (1878) (declaring that a statute transferring the property of A to B “is not legislation”).
Stephen A. Siegel, “Historism in Late Nineteenth-Century Constitutional Thought,” Wisconsin Law Review 1990 (1990), 1438.
Ibid. See generally Eric R. Claeys, “Blackstone’s Commentaries and the Privileges or Immunities of United States Citizens: A Modest Tribute to Professor Siegan,” San Diego Law Review 45 (2008), 789–96.
Butcher’s Union Company v. Crescent City Company, 111 U.S. 746, 762 (1883) (Bradley, J., concurring). See also Powell v. Pennsylvania, 127 U.S. 678, 691–92 (1888) (articulating the right of a person “to follow such pursuits as may be best adapted to his faculties, and which will give to him the highest enjoyment”) (Field, J., dissenting); In re Quong Woo, 13 F. 229, 233 (C.C.D. Cal. 1882) (Field, J.).
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See Ely, “Rufus W. Peckham and Economic Liberty,” 611. Brewer once wrote, “The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and the duty of government.” Budd v. New York, 143 U.S. 517, 551 (1892) (Brewer, J., dissenting). As a state court judge, Peckham spoke of “the absolute liberty of the individual to contract regarding his own property.” Walsh, 22 N.E. at 687 (Peckham, J., dissenting).
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See Stephen A. Siegel, “Let Us Now Praise Infamous Men,” Texas Law Review 73 (1995): 661–709.
See, for example, Jacobson v. Massachusetts, 11, 29 (upholding mandatory smallpox vaccination and stating that “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand”); Champion v. Ames, 188 U.S. 321 (1903) (analogizing lotteries to nuisances and upholding a law banning lotteries); Hennington v. Georgia, 163 U.S. 299 (1896) (upholding a Sunday law and stating that “from the earliest period in the history of Georgia it has been the policy of that state, as it was the policy of many of the original states, to prohibit all persons, under penalties, from using the Sabbath as a day for labor and for pursuing their ordinary callings”). See generally Otis v. Parker, 187 U.S. 606, 607 (1903) (“No court would declare a usury law unconstitutional, even if every member of it believed that Jeremy Bentham had said the last word on that subject, and had shown for all time that such laws did more harm than good. The Sunday laws, no doubt, would be sustained by a bench of judges, even if every one of them thought it superstitious to make any day holy”).
W. F. Dodd, “Social Legislation and the Courts,” Political Science Quarterly 28 (1913), 5. For similar commentary, see Frederic R. Coudert, Certainty and Justice (New York: D. Appleton and Co., 1914), 57; Frank Goodnow, Social Reform and the Constitution (New York: Macmillan, 1911), 329.
For a discussion of the reception these articles received, see Michael Allan Wolf, “Charles Warren: Progressive, Historian,” 233 (unpublished PhD diss. 1991, Harvard University, microfilm). See also Victoria F. Nourse, “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights,” California Law Review 97 (2009): 784.
Keith E. Whittington, “Congress before the Lochner Court,” Boston University Law Review 85 (2005): 830.
Learned Hand to Van Vechten Veeder, December 11, 1913, quoted in Gerald Gunther, Learned Hand: The Man and the Judge (New York: Alfred A. Knopf, 1994), 211.
Johnathan O’Neill, Originalism in American Law and Politics (Baltimore: Johns Hopkins University Press, 2005), 26.
West Coast Hotel v. Parrish, 300 U.S. 379, 453 (1937) (Sutherland, J., dissenting); see also Muller v. Oregon, 208 U.S. 412, 420 (1908) (“Constitutional questions are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations on upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking”).
See, for example, Thomas James Norton, “National Encroachments and State Aggressions,” in American Bar Association, Report of the Fifteenth Annual Meeting of the American Bar Association (Chicago: American Bar Association, 1926), 237.
For example, Edward S. Corwin, “The Doctrine of Due Process of Law before the Civil War,” Harvard Law Review 24 (1911): 366–85.
For example, E. F. Albertsworth, “Program of Sociological Jurisprudence,” American Bar Association Journal 8 (1922), 396; Louis D. Brandeis, “The Living Law,” Illinois Law Review 10 (1916), 469.
Roscoe Pound, “Justice According to Law,” Columbia Law Review (1913): 706; Pound, “The Scope and Purpose of Sociological Jurisprudence, Part II,” Harvard Law Review 25 (1912): 515.
Robert E. Cushman, “The Social and Economic Interpretation of the Fourteenth Amendment,” Michigan Law Review 20 (1922): 737–64.
Felix Frankfurter, “Hours of Labor and Realism in Constitutional Law,” Harvard Law Review 29 (1916): 365; Thomas Reed Powell, “The Constitutional Issue in Minimum-Wage Legislation,” Minnesota Law Review 2 (1917): 18.
See Charles Fried, Saying What the Law Is: The Constitution in the Supreme Court (Cambridge, MA: Harvard University Press, 2004); Steven G. Calabresi, “Text vs. Precedent in Constitutional Law,” in Steven G. Calabresi, ed., Originalism: A Quarter Century of Debate (Washington, DC: Regnery, 2007), 204.
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© 2013 Joseph Postell and Johnathan O’Neill
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Bernstein, D.E. (2013). The Progressive Origins of Conservative Hostility to Lochner v. New York . In: Postell, J., O’Neill, J. (eds) Toward an American Conservatism. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137300966_3
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