Forbath on Politics, State Building and the Courts

William Forbath's (Texas) interesting chapter of the forthcoming Cambridge History of American Law has just been posted on SSRN. The title is Politics, State Building, and The Courts, 1870-1920. 1920 would seem to be an odd place to bring a history of courts and state building in the U.S. to a close, but that's the cut-off for the second volume of the Cambridge series. Here's Forbath's abstract:

This is the synthetic, capstone chapter of Volume II of the Cambridge History of Law in America. It examines the role of courts and legal elites in the making of the modern American state. By 1920, the foundations of the modern regulatory and welfare state had been laid. Yet, courts were more powerful than ever. For the first century of the republic the elites of bar and bench were the American equivalent of Europe's state elites. During the decades bracketing the turn of the century, courts yielded a significant measure of power to the administrative agencies they deemed worthy and responsible but remained the nation's authoritative political economists and final arbiters of the substantive and procedural boundaries of state power, striking the balance between old (classical, individualist) and new (social, collectivist) liberal values and continuing to define and redefine the rules and standards governing much of social and economic life. In the process, many areas of twentieth-century social policy and social provision other nations were assigning to public bureaucracies came to rest in the hands of common law judges, attorneys and private bureaucratic institutions, like employers and insurance companies.

Congress did not fail to address the leading problems of the day: the trusts, the railroads, the pervasive conflict between labor and capital. However, the clash of increasingly well-organized, competing interests combined with the newness of national legislation in these areas to yield studiously ambiguous and common law-laden statutes, leaving the hard, deeply contested questions in the judiciary's hands. Judicial authority also found a boost from popular attachment to a decentralized constitutional order and popular distrust of bold central-state-building visions like Theodore Roosevelt's.

Meanwhile, under the varied leadership of conservatives, moderates and Progressives, the elite bench and bar magnified [their] office, building up and centralizing the judiciary itself, expanding the courts' own regulatory powers and capacities, and infusing new administrative agencies with court-like, adversarial processes. They produced a modernized judiciary and a judicialized, lawyer- and common-law dominated administrative state that, for better and worse, remains with us today.

Many important developments in administrative state building and judicial governance unfolded outside the liberal dialectic of new state authority and new legal limits on state authority. Equal rights and liberty were not for everyone; not everyone had the minimum moral and mental capacities for self-rule, the human stuff on which liberal legal regimes had to rest. The immigrant races arriving from Asia and from Southern and Eastern Europe to form a new industrial proletariat, the new colonial subjects in the Philippines, along with the old racial others, Native and African Americans: all these races were arrayed on an evolutionary scale, and, in vary degrees, all fell short of old stock white Americans; none were thought fully equipped for living under liberal legal rule. It came easily to fashion and uphold illiberal laws for pre-liberal peoples. Trade unionists (like African-American and women's rights advocates) invoked classical liberal rights and legal equality to challenge pre-liberal, quasi-feudal forms of subordination inscribed in common law doctrines of master and servant. But the judiciary built up government by injunction around such doctrines. Also unfettered by liberal legal restraints were the major experiments in administrative state building prompted by mass immigration, Westward expansion, and imperial adventures abroad. These experiments raised fundamental questions about the scope and power of the American state and the bestowal of membership in the community constituted by the U.S. Constitution. The answers that Congress and the Executive gave were bluntly racist and illiberal, but the courts responded by cutting swathes of governance and regulation free from any significant liberal-legal-constitutional control, creating constitutional black holes that also remain in the twenty-first century American state.