Sunday, December 29, 2019

Revisionism and Rehabilitation

[by David Schwartz, guest blogger]

Our understanding of the post-Civil War Supreme Court in what might be called its “dark age” – from the 1870s to 1936 – has been shaped by a long-running debate between “progressive” historians and “revisionists.” The progressive historians gave us the conventional narrative of a Lochner-era Court bending or discarding judicial principle to serve the interests of wealth and implement their personal policy preference for laissez faire economics. The revisionists, starting in the 1970s, complicated that account by showing that much economic reform legislation was upheld in this era, at least at the state level, and arguing that the progressive critique reductively ignored the influence of jurisprudential ideology and doctrine on the Court’s decisions.

In her masterful article published last year in the Law and History Review, In Defense of Progressive Legal Historiography, Laura Kalman offers a graduate seminar in these debates, honoring the contributions of both sides and calling for a synthesis of the progressive thesis and revisionist antithesis. Arguably that has already occurred, insofar as the debate has died down and sophisticated historians recognize that judicial decisions are shaped by ideology, doctrine, and institutionalism, as well as political, social, and economic factors. While Kalman’s actual defense of progressive legal historiography could have been more forceful for my tastes, she did slip in a devastating critique of revisionism, showing it to have a significant reductive quality of its own. Not only did the revisionists tend to reduce progressive historiography to a caricature—that judges were utterly unprincipled quasi-legislators implementing their policy preferences by blocking all social reform—but they also overstated their case by treating judicial decisions themselves as the only (or primary) admissible evidence. They thereby ignored the justices’ speeches, professional networks, and biographical data of the sort presented in Arnold Paul’s Conservative Crisis and the Rule of Law (1960), that shed considerable light on the justices’ attitudes and motivations.

Revisionism about the late nineteenth/early twentieth century Supreme Court can be critiqued on a related but different ground: its tendency to venture beyond legal intellectual history and into judicial rehabilitation projects.

A key element of the revisionist thesis was to argue that what the progressives labeled economically motivated laissez-faire jurisprudence was in fact a direct outgrowth of a “Jacksonian” jurisprudence that eschewed special interest legislation. The revisionist thesis was crisply summarized by Howard Gillman in his now-classic The Constitution Beseiged (1993).  Lochner era jurisprudence was, Gillman argued, “a serious, principled effort to maintain one of the central distinctions in nineteenth-century constitutional law—the distinction between valid economic regulation, on the one hand, and invalid ‘class’ legislation, on the other—during a period of unprecedented class conflict.” The word “principled” here is crucial: revisionists used that adjective or its equivalents repeatedly, to assert that Lochner-era jurisprudence was smoothly continuous with established doctrine, and not an economically motivated innovation. Laissez faire, in this view, becomes almost an epiphenomenon of “principled” Jacksonian jurisprudence.

To be sure, the revisionists were good intellectual historians in showing continuities between the late nineteenth century Court and the Taney Court. In retrospect, it would be strange if there were no such continuities. It should hardly be surprising that judges who came of professional age in the antebellum era, and even those who were students of law teachers who came of professional age in the antebellum era, would continue—to some degree at least—to write and think in antebellum conceptual categories.

But many revisionists have tended to push matters too far by seeking, not just to deepen our understanding of the post-Civil War Supreme Court’s jurisprudence, but to rehabilitate it. What, after all, is meant by the insistence on “principled” judging, and how exactly is channeling Jacksonian jurisprudence principled? Kalman rightly observes that the term “Jacksonian” is mushy and disputed. So is “principled,” which can mean at least three things in this context, and it is not clear that the revisionists carefully distinguished among them.

 If “principled” judging means basing decision on substantive principles, one would be hard-pressed to find unprincipled decisions in any era. Laissez faire is, after all, a principle. The Taney Court acted on a “principle” in cases like Prigg v. Pennsylvania and Dred Scott v. Sanford: the principle was that ambiguous or indeterminate constitutional provisions should be given a pro-slavery interpretation, because the southern states would never have ratified a Constitution that was adverse or even neutral toward slavery.

“Principled” judging might also mean yielding one’s own political or jurisprudential commitments to understandings of the Constitution that command widespread consensus. The revisionists perhaps want to benefit from this definition of "principled" by emphasizing the egalitarian quality of the purported Jacksonian opposition to class legislation. But such an understanding of principle is poorly applied to Lochner era decisions, which were neither egalitarian nor reflective of consensus principles. The widespread and sustained progressive backlash against the more notorious decisions of this era, their marked tendency to favor the interests of wealth, and the often close divisions on the Court – the child labor case, Hammer v. Dagenhart (1918) was a 5-4 decision—belie such a claim.

Presumably, the revisionists find principle in the mere fact of jurisprudential continuity from one era to the next, on the belief that continuity with Jacksonian jurisprudence implies adherence to precedent. This in turn, presumably implies the subordination of personally held beliefs to trans-substantive principles like stare decisis and the institutional integrity of the Court.

Ironically, a similar move was made by some of the same progressive legal historians whom the revisionists derisively criticized. As I discuss in The Spirit of the Constitution, New Deal historiographers made a concerted effort to argue that the Court’s Lochner jurisprudence represented an anomaly, utterly discontinuous with a consistent line of jurisprudence dating back to John Marshall. By 1941, the pro-New Deal Court took this line, saying in United States v. Darby Lumber Co., that a broad and deferential approach to federal commerce regulation was the rule, and the Lochner era the exception:

In the more than a century which has elapsed since the decision of Gibbons v. Ogden, these principles of constitutional interpretation have been so long and repeatedly recognized by this Court as applicable to the Commerce Clause, that there would be little occasion for repeating them now were it not for the decision of this Court twenty-two years ago in Hammer v. Dagenhart.

For more serious scholars aiming to show the Lochner era to be historically discontinuous, it was necessary to rehabilitate the Taney Court. Thus, for example, progressive legal historian Carl Brent Swisher followed up his critical biography of the laissez faire justice Stephen Field (1930) with a highly sympathetic biography of Roger Taney (1934). Socialist lawyer Louis Boudin, author of the progressive manifesto Government by Judiciary (1932), depicted Taney in a 1936 law review article as both a Marshallean and progressive justice who “favored that interpretation of the Constitution which would permit the government to do things, instead of an interpretation which would hamper it.” Most (worst) of all, Felix Frankfurter, in his 1936 lectures on the Commerce Clause, played down Taney’s pro-slavery jurisprudence while playing up his anti-monopolistic beliefs. “The mists of prejudice are only gradually lifting from Taney’s reputation,” Frankfurter wrote, suggesting that Taney’s “share in the responsibility of the whole Court for the tragic Dred Scott affair” was overstated, while Taney’s states’ rights philosophy was close kin to “the Insurgency of the elder LaFollette, the Progressivism of Theodore Roosevelt, and the New Freedom of Woodrow Wilson.”

The revisionists of Lochner era historiography are better intellectual historians than that, but when they venture into the project of reputational rehabilitating, their arguments tend to converge with the highly motivated historiography of the New Dealers. It is one thing to say that late nineteenth century judges applied some of the conceptual apparatus of Jacksonian jurisprudence. But it is quite another to suppose that Lochner era judges were straightforwardly applying Jacksonian doctrines and precedents in vastly different political and economic circumstances decades later. Taney Court federalism doctrine, for example, was aimed at protecting state regulatory power over slavery. Late nineteenth century “dual federalism” doctrine imposed laissez faire restriction on federal regulatory power without regard to that of the states. The conceptual terminology of federalism was largely continuous, but the substance was profoundly transformed.

The motivations of the revisionists are undoubtedly more varied than those of the New Dealers: In contrast to the progressive school of legal history, which was mostly politically liberal, the revisionists, as Kalman explains, came at progressive historiography from left, right, and center. Whatever their diverse motivations, to the extent that the revisionist project entailed rehabilitating the reputation of the Lochner-era Court, they have tended to exaggerate the nature and degree of that Court’s continuity with Jacksonian jurisprudence. Reputational rehabilitation necessarily requires making normative judgments that invite the sort of presentism that historical inquiry at its best tries to avoid.

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