Wednesday, January 18, 2012

Two Constitutional History Classics from Barry Cushman

Barry Cushman, University of Virginia School of Law, has recently posted two older but important articles; in particular, “Secret Lives” belongs in the canon of scholarship on the constitutional history of the Twenties and Thirties.

The first article is Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s.  It originally appeared in the Buffalo Law Review, 50 (2002):
Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, and 1940, on five major areas of public concern: labor; federal regulatory power; redistribution; fiscal policy; and relief and social security. The poll results reveal public preferences that are far more politically moderate than some have inferred from the election returns. The results also show that comparatively little change in constitutional doctrine was necessary in order to accommodate those popular preferences. This in turn helps to rationalize, if it does not explain, the consistent popular aversion to proposals to limit the power of the Supreme Court, as well as the persistent public opposition to President Roosevelt's ill-fated Court-packing plan.
The second is The Secret Lives of the Four Horsemen, which originally appeared in the University of Virginia Law Review 83 (1997):
"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars have seen the Four Horsemen as far right, reactionary, staunchly conservative apostles of laissez-faire and Social Darwinism. And not without good reason. One need only read opinions such as those in Adkins v. Children's Hospital and Morehead v. Tipaldo, Railroad Retirement Board v. Alton Railroad and Ribnik v. McBride, Hammer v. Dagenhart and Carter Coal, and the dissents in such cases as Nebbia, Blaisdell, the Gold Clause Cases, and the Wagner Act Cases to understand why. One can hardly avoid coming away from these and other decisions with the impression that these were men fanatically devoted to property rights and callously indifferent to the commonweal.

Here and there one finds shreds of biographical evidence suggesting that something like the milk of human kindness may have flowed in parsimonious quantities through their veins. We discover that Sutherland's legislative career saw him support the eight-hour day, the Employers' Liability Act, the Pure Food and Drugs Act, the Hepburn Rate Bill, the Children's Bureau, the Seaman's Act of 1915, Postal Savings Banks, free coinage of silver, and the 1896 presidential candidacy of the populist William Jennings Bryan. We even find Sutherland in the vanguard of the struggle for women's suffrage and a system of workmen's compensation for the employees of interstate carriers. We read of Butler's leadership in the fight for workmen's compensation in his home state of Minnesota; of his efforts on behalf of the federal government in prosecuting Swift, Armour and other large meatpackers for violations of the Sherman Antitrust Act; and of his success in saving the Canadian government "huge sums of money in valuation proceedings against some of the western railroads." We are told of McReynolds' role as an avid trustbuster for Presidents Taft and Wilson, of his environmentalism, and of his generosity toward charitable causes. We learn of Van Devanter's reputed sensitivity to the plight of the Native American. But such paltry gestures of concern for the underdog have been far from sufficient to rebut Fred Rodell's charge that their jurisprudence was driven by "their basic and bone-deep Hamiltonian empathy with the well-to-do."

When one dips a bit deeper into the U.S. Reports, however, one discovers some startling data. One finds the Four Horsemen actually supporting liberal case outcomes. At first one is inclined to dismiss these cases as mere aberrations, attributable perhaps to the dull Horsemen's inability to recognize when the liberals were pulling the wool over their eyes. But the cases continue to mount until the sheer volume is so immense as to point irrefragably to only one conclusion: the Four Horsemen were themselves closet liberals. It appears that they struck a reactionary pose in celebrated cases in order to retain the good graces of the conservative sponsors to whom they owed their positions and whose social amenities they continued to enjoy, while in legions of low-profile cases they quietly struck blows for their own progressive agendas. In this way, it seems, the Horsemen could continue to enjoy access to the corridors of power and influence and the hospitality of the most fashionable Washington salons, while at the same time working surreptitiously to undermine the very causes that their conservative patrons held most dear. Theirs, then, is not a simple story of handmaidens of the industrial and financial elite. It is instead a tale of luxury and deceit.

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