Feudalism and the Constitution

• Author: Karen Orren
• Pages: 1034-1035

Page 1034

When the Framers referred to feudalism in the FEDERALIST, that abstraction served as a model of decentralized rule. Otherwise, they would have agreed with JOHN ADAMS, who in 1765 had authored a short dissertation on the topic: feudalism, merged perniciously with Romish religion, was what the Puritans left behind them in England; released from ignorance, dependence, and extreme poverty, their descendants were free to follow "the true map of man." This view was later endorsed by leading interpreters of "American exceptionalism." More recent research has shown it to be incomplete. Among the COMMON LAW hierarchies that ordered the relations of persons throughout medieval society, those in religious and commercial affairs were removed by the time Adams wrote and were now governed by Parliament. Other hierarchies remained; WILLIAM BLACKSTONE enshrined them as "private relations"?husband and wife, parent and child, master and servant, guardian and ward?still under the aegis of the courts. These survived the AMERICAN REVOLUTION.

The English development was transplanted into the United States as every state and territory except Louisiana received English common law and statutes into its own legal system. Ancient privileges still intact became VESTED RIGHTS, protected by the SEPARATION OF POWERS against legislative tampering. Following old rules of STATUTORY INTERPRETATION, and newer constitutional limitations, nineteenth-century judges read women's inheritance acts to preserve their husbands' interests against express language to the contrary, nullified maximum-hours statutes as invasions of FREEDOM OF CONTRACT between masters and servants, and struck down state liberty laws for violating slaveholders' common-law right of recaption.

The stubbornness of inherited hierarchy in the face of ideological and social democratization characterizes important constitutional struggles of the twentieth century. Among the most tumultuous was the conflict between employers and employees over the establishment of trade unions. Before the NEW DEAL, most judges held union activity to violate the master's ancient and constitutionally endorsed rights in the workplace. These rights were at issue

Page 1035

in the COURT-PACKING "crisis" of 1936, finally resolved in NLRB v. Jones & Laughlin Steel Co., in which the Supreme Court upheld an act of Congress giving an employee a right to a reinstatement proceeding under the WAGNER ACT, a right...