[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.
