History of the Supreme Court of the United States, vol. 8, Troubled Beginnings of the Modern State: 1888-1910.

• Author: Hovenkamp, Herbert

Volume VIII of the Holmes Devise History of the Supreme Court of the United States covers the period (1888-1910) during which Melville Weston Fuller was Chief Justice. Owen Fiss' book begins with candor. By all accounts, Fuller's Court "ranks among the worst" in Supreme Court history.(1) This was the Court that gave us Lochner v. New York(2) and the development of substantive due process,(3) paranoid hostility toward government regulation of business,(4) and condemnation of the federal income tax.(5) The same Court's opinions interpreted free speech narrowly(6) and fueled the antilabor movement by furnishing the federal government with expansive power to break strikes and by interpreting the antitrust laws to reach and condemn the organization of labor.(7) The Fuller Court contributed the racism of the Chinese exclusion cases, which denied resident Chinese the opportunity to become U.S. citizens,(8) and, worst of all, it wrote Plessy v. Ferguson,(9) which gave constitutional legitimacy to a "separate but equal" segregation statute.(10) The Fuller Court's legacy was an unmatched record of reactionary, bigoted, and rejected precedents, with few brilliant, prophetic decisions thrown in to right the balance.

The Fuller Court represented (until the election of Warren Harding in 1920) the last stand of orthodoxy in the face of the Progressive revolution. Fuller's misfortune was that he and most of his colleagues followed a political ideology that had fallen out of favor, just as the revolution was occurring. Somebody has to end an era. Even so, the Fuller Court gave nineteenth-century legal orthodoxy an ungraceful exit. The problem was not so much that its members were predominantly committed to the common law, suspicious of regulation and the welfare state, and influenced by numerous racial prejudices. All these things could be said equally of Justice Holmes, its most illustrious dissenter. The central problem of the Fuller Court was that it united its prejudices with an expansive and ill-considered conception of judicial power that enabled the Justices to strike down all manner of legislation by employing highly creative interpretations of the Constitution. Then it used that power selectively. For example, "due process" was given a broad and unprecedented meaning in Lochner, but "equal protection" was constrained to its narrowest possible meaning in Plessy.

Fiss' presentation of the Fuller Court is balanced and more sophisticated and theoretical than many of the volumes in the Holmes Devise. It is not very chronological, and that may disturb some readers. Plessy (1896) comes in the very last chapter, while Lochner (1905) is treated mainly in the first two-hundred pages. Fiss chose, I believe correctly, to organize the Fuller Court analytically rather than chronologically. However, a few things become lost in this organization. For example, Plessy was part of the road to substantive due process, not simply tacked on at the end. Both substantive due process and Plessy were part of the historical development of judicial analysis of the Fourteenth Amendment. Why was it that the Court was so tolerant of state regulatory intervention in race relations but so intolerant of regulatory intervention in the economy? Sticking Plessy in the last chapter, removed from the substantive due process debate, does not serve to cast light on this question.

The Fuller Court dealt with three major legal/intellectual debates that dominated the two-decade period falling just before and just after the turn of the century. These concerned the Progressive welfare agenda, the antitrust and regulated industries movement, and the first major debate since the Civil War over the scope of federal protection for civil and political rights. Fiss' book handles these issues with skill, focusing somewhat less on the language of the judicial decisions than earlier Holmes Devise volumes, and somewhat more on the political and social history of the times. At the same time, however, Fiss' treatment presents its own ambiguities and problems of perspective.

1. Contractarianism and the Progressive Policy Agenda

   Fiss argues that the Fuller Court thwarted Progressive reform legislation by subjecting it to a contractarian analysis that the Court found justified mainly by the Fourteenth Amendment. The result was substantive due process - the notion that the Fourteenth Amendment's Due Process Clause can be used to strike down the substance of state legislation rather than simply as a guarantee of procedural fairness(11) - identified today mainly with the Court's decision in Lochner v. New York.

   The group of academics and politicians we call the Progressives held views at odds with nineteenth-century orthodoxy in several ways. In economics they were neoclassicists rather than classicists.(12) As such, they had less faith than their predecessors in the robustness of markets, and correspondingly more faith in the usefulness of state intervention. The Progressives were more committed than their predecessors to state regulation of business and to state policymaking concerning the distribution of wealth. They tended to see the common law as ineffective for achieving the state's "public" policy goals, or even as affirmatively harmful.(13)

   Progressive intellectuals, although not necessarily Progressive politicians, were also by and large Darwinians. Darwinism entailed accommodation of the social sciences,(14) but it also had powerful if controversial implications for determining the role of the state in issues of welfare and human development. To the extent Progressives were influenced by Darwin, they were "Reform" Darwinists rather than "Social" Darwinists. Social Darwinists and Reform Darwinists had radically different views about the respective roles of state and market. Social Darwinists believed that the state should let social conditions and the market take care of themselves, thus permitting the evolutionary process to run its course. By contrast, Reform Darwinists emphasized that while all organisms are subject to evolutionary processes, human beings are different in that they are aware of the evolutionary process and thus able to direct it and use it to best advantage.(15) Thus, Reform Darwinists were statists, and a few were even radical statists.

   The substantive due process ideology of the Fuller Court was also radical, but in different ways. First, during the substantive due process era the Supreme Court seemed to give government regulation much closer scrutiny, striking down many more statutes than it had in the past. Second, the justifications on which the Court relied to strike down legislation were either poorly articulated in the constitutional text or not articulated at all; they were also largely absent from the debates of the Constitution's drafters.

   Fiss quite properly notes that the latter point should not be pushed too far. Constitutional interpretation in the nineteenth century was based on fairly broad principles and was "not an exercise in clause-parsing,"(16) as it has often become today. Nevertheless, the mode of constitutional analysis that characterized substantive due process was unprecedented, particularly the Justices' willingness to strike down both state and federal statutes that were not obviously in conflict with any specific constitutional provision. Nearly every historian who has written about the subject has felt obliged to produce some explanation, or model, for making sense out of what looks very much like Justices simply writing down their political views and calling it constitutional adjudication.(17)

   Fiss' own explanation is that the defining ideology of the Fuller Court toward welfare legislation was contractarianism.(18) The Justices believed that the Constitution was a social compact in the Lockean sense, and that reaching ultimate constitutional values meant not simply looking at the text of the Constitution but also putting oneself in place of the original contracting parties. Since a contract requires unanimous consent, the constitutional interpreter must ask what kinds of state actions would have received such consent.(19)

   Clearly, state-forced wealth transfers would not have received unanimous consent, for losers would never have agreed; likewise, the original contractors would not have given up their future economic liberty of contract without a very good reason. Fiss believes that even though the conservative Justices were naturally attracted to this idea by their own political ideology, they found it already well established in nineteenth-century constitutional theory. They also found support in the Social Darwinism that permeated elite thinking during the 1880's and 1890's.(20) This contractarian theory guided not only explicit substantive due process decisions such as Lochner but also the decisions that invalidated the federal income tax,(21) that authorized federal intervention in labor disputes,(22) and that limited the rights of resident aliens and citizens of U.S. territories, on the premise that these people had not been participants in the formation of the contract.(23)

   Fiss concludes that "[t]he theory of the social contract prevalent in the nineteenth century defined the bargaining relationship among the founders in such a way as to deny government the power to redistribute wealth."(24) Further, this social contract ideology differed from Rawlsian ideology in that the constitutional social contract of the nineteenth century was not negotiated behind a "veil of ignorance."(25) The bargainers knew what they had and what they wanted. The wealthy would never have assented to a contract bargaining away their wealth. "Accordingly, they conditioned their consent, so the story went, on an assurance that their holdings would not be taken by the newly established government for the purpose of altering the distribution of wealth."(26)

   Fiss argues that the contractarianism of the Fuller Court entailed a...