Brewer, David J. (1837–1910)

Author:Kermit L. Hall

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David Josiah Brewer forged conservative socioeconomic beliefs into constitutional DOCTRINE. From the time he assumed his seat on the Supreme Court in December 1889, Brewer unabashedly relied on judicial power to protect private property rights from the supposed incursions of state and federal legislatures. Through more than 200 DISSENTING OPINIONS, most of which came during his last ten years on the bench, Brewer emerged as the conservative counterpart of the liberal "Great Dissenter," JOHN MARSHALL HARLAN.

Like his uncle, Justice STEPHEN J. FIELD, Brewer moved from moderate liberalism as a state judge to strident conservatism on the federal bench. Increasing doubts about the power of the Kansas legislature to regulate the manufacture and sale of alcohol punctuated his twelve-year career on the state supreme court. Brewer refrained from directly challenging a constitutional amendment that destroyed the livelihood of distillers without compensation, although, in State v. Mugler (1883), he expressed serious reservations about it. After President CHESTER A. ARTHUR appointed him to the Eighth Circuit in 1884, Brewer adopted a more aggressive position. He held that Kansas distillers deserved JUST COMPENSATION for losses suffered because of PROHIBITION, a position that the Supreme Court subsequently rejected in MUGLER V. KANSAS (1887).

Brewer's CIRCUIT COURT opinions on railroad rate regulation proved more prophetic. He ignored the Supreme Court's HOLDING in Munn v. Illinois (1877) that state legislatures could best judge the reasonableness of rates. (See GRANGER CASES.) Instead, Brewer asserted that judges had to inquire broadly into the reasonableness of rates and to overturn LEGISLATION that failed to yield a FAIR RETURN ON FAIR VALUE of investment.

These views persuaded President BENJAMIN HARRISON to appoint Brewer the fifty-first Justice of the Supreme Court. The new Justice immediately lived up to expectations by contributing to the emerging doctrine of SUBSTANTIVE DUE PROCESS OF LAW. Brewer advocated use of the Fifth Amendment and the FOURTEENTH AMENDMENT to shelter corporate property rights from federal and state legislation. Three months after his appointment he joined the majority in the important case of CHICAGO, MILWAUKEE

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AND ST. PAUL RAILWAY COMPANY V. MINNESOTA (1890) in striking down a state statute that did not provide for JUDICIAL REVIEW of rates established by an independent commission. More than other members of the Court, Brewer sought to expand the limits of substantive due process. Two...

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