Material Causes of the Five Eras of American Law

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 425

As discussed in Chapter 13, five eras have existed in American law. These eras reflected the four different judicial decisionmaking styles. For constitutional law, these five eras are: a natural law era, 1789-1873; a formalist era, 1873-1937; a Holmesian era, 1937-1954; an instrumentalist era, 1954-1986; and a modern natural law era, 1986-today. As its most elementary level, the material cause of each of these eras of constitutional law were the Presidents who nominated, and the members of the Senate who confirmed, the Justices who sat on the Supreme Court. Identifying the political currents underlying the elections of these Presidents and Senators can help better define the form or shape of these eras of American law. In addition, the case results in these eras of constitutional decisionmaking depended not only on the style of decisionmaking that was applied in the cases, but also on the kind of cases that reached the Court. These cases, in turn, reflected the material reality of what was going on in society with respect to economic and social matters.

This Chapter will present a summary of highlights on how the Court's decisionmaking has related to economic and social events in society, classifying those events by time into the five eras discussed in Chapter 13. Other highlights appear in Chapters 17-32, where specific cases are discussed and organized in doctrinal fashion as well as by the eras of decisionmaking. Similar to the four judicial decisionmaking styles, there are four approaches to political issues. These approaches are discussed at ß 14.1. Details regarding each of the five eras, both in terms of politics and the related economic and social issues that defined each of these eras, are discussed at ß 14.2. Fuller discussion of the nature of society and politics in the modern natural law era occurs at ß 14.3. A few comments on the possible shape of social, political, and judicial decisionmaking in the future occur at ß 14.4.

ß 14 1 Defining Four Approaches to Social and Political Issues

As discussed at ßß 2.2 and 2.3, judges must ask two main questions in deciding cases - the nature of law and the nature of the judicial task. For any politician entering public office, there are also two main questions to ask. These two questions involve the politician's approach toward fiscal policy and toward social policy. One can have a conservative or progressive approach toward each.

In general, a conservative fiscal approach gives high priority to the balance sheet, matching governmental costs with revenues to try to achieve a balanced budget. In contrast, a progressive fiscal approach puts greater weight on using the government's fiscal resources to provide correctives to the business cycle to promote economic growth and lower unemployment. A progressive fiscal approach is thus willing to run deficits in order to stimulate the economy.

In general, conservative social policy emphasizes the traditional moral values of the majority of the community and is reluctant to have government take over functions that might better be handled by private individuals, community organizations, or religious organizations. For conservatives, the primary obligations of government are national defense and preserving law and order in society. Progressive social policy focuses more on protecting the rights of individuals, particularly the rights of individuals in the minority to dissent. Progressive social policy also responds to identified needs by looking for answers partly in governmental programs that protect individuals' health and safety concerns and provide a safety net for those in need. For progressives, governmental spending needs to reflect a balance between the needs of national defense and preserving law and order versus the Page 426 need for social health and safety programs and effective regulation, giving each their appropriate weight.

Just as combining the two possible approaches to the two judicial questions led to four judicial decisionmaking styles, combining conservative and progressive approaches toward fiscal and social policy yields four possible combinations of political perspectives. At one extreme are traditional conservatives who are conservative on both fiscal and social policy. In his heart, and in his rhetoric, though not in the large deficits that occurred during his presidency, President Reagan epitomized this kind of approach. Speaker Newt Gingrich and the House Republican rhetoric carried on this tradition in the 1990s with their emphasis on a balanced budget amendment to the Constitution, combined with a conservative approach toward social policy.

At the other extreme are modern liberals who are progressive on both fiscal and social policy. President Johnson epitomized this kind of approach in the 1960s. It is often associated with the phrase "liberal Democrats in Congress."

Third, there is the traditional liberal approach of the 18th and 19th centuries, which was conservative on fiscal policy, but progressive on social policy. As discussed at ß 14.2.1, this was the position of Presidents Jefferson and Jackson in the early 19th century. It is the position of various groups in the center of American political debate today who are looking for a third way between the House Republicans and the liberal Democrats in Congress. Examples of this include: the "Big Tent" strategy of the Republicans; the "New Democrat" strategy of the Democrats; and various independent movements, such as the Reform Party, at least as represented by former Minnesota Governor Jesse Ventura, who described himself as a fiscal conservative and social progressive. California Governor Arnold Schwarzenegger similarly positioned himself as a fiscal conservative, but social progressive in his successful campaign in the California recall election of Governor Gray Davis in 2003.

Finally, there is a modern conservative position, progressive on fiscal policy, but conservative on social policy. President Nixon epitomized this approach with his fiscally progressive comment that "we are all Keynesians now," coupled with his socially conservative "law and order" approach. This position is also reflected in the conservative social policy, but fiscally progressive large deficit policies of Presidents Reagan, George H.W. Bush, and George W. Bush that occurred in response to economic recessions in 1981, 1990, and 2001, respectively. This modern conservative position was also reflected in the socially conservative populism of politicians like former Alabama Governor George Wallace.

Each of these approaches have predominated at various points in American history. As discussed at ß 14.2, originally, during the natural law era of 1789-1873, the traditional liberal approach of the 18th and 19th centuries predominated as a matter of politics. During the formalist era of 1873-1937, the traditional conservative approach predominated. During the Holmesian era of 1937-54, the modern conservative position was prominent. During the instrumentalist era of 1954-86, the modern liberal approach predominated. As in constitutional law, its heyday was 1963-69. The predominant approach of the modern era suggests a modern version of the traditional liberal approach. Page 427

Of course, the reasons why each of these approaches predominated at any point in time is dependent on a range of social and political considerations. As discussed at ß 14.3, as a general matter, the Democratic Party has always billed itself throughout American history as the party of the middle and working classes, laborers and farmers alike. In contrast, the Republican Party, along with its Federalist and Whig predecessors, has billed itself as the party of the business community and traditional White, Anglo-Saxon Protestant religious values. Two groups of swing voters, Southern religious conservatives and minorities, have determined in each era which political party predominantly had the electoral advantage.

When the Democratic Party has captured the substantial allegiance of both Southern religious conservatives and minorities, the Democratic Party has had an electoral advantage. This occurred during the pre-Civil War era, when Southern conservatives and Northern minority groups, such as Irish or Jewish groups, supported the Democratic Party more than the Federalist, Whig, or Republican Parties, and from the Great Depression until the Civil Rights Movement of the 1960s.

The Republican Party has had the electoral advantage when it captured greater allegiance among either of these two groups. The Republican Party thus had the electoral advantage from the Civil War to the Great Depression, when it captured greater allegiance among minority voters, particularly African-American voters, based on the Republican Party's role in ending slavery and ensuring African-Americans the constitutional right to vote under the 15th Amendment. This right was adequately protected in the North, which was sufficient to preserve the overall electoral advantage of the Republican Party, while African-American voters in the South were disenfranchised as a practical matter as a result of Jim Crow legislation from the 1880s until voting rights acts in 1957 and 1965. Consistent with the proliferation of segregation statutes in the 1880s and 1890s, Democrats in the South "led organized efforts to disenfranchise Black voters. . . . In Louisiana, for example, in 1896...

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