More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law

AuthorHoward Gillman
Published date01 June 1996
Date01 June 1996
DOIhttp://doi.org/10.1177/106591299604900209
Subject MatterArticles
/tmp/tmp-18v61qM2gNEfzL/input
More on the Origins of the Fuller
Court’s Jurisprudence:
Reexamining the Scope of
Federal Power Over Commerce
and Manufacturing in
Nineteenth-Century
Constitutional Law
HOWARD GILLMAN, UNIVERSITY OF SOUTHERN CALIFORNIA
Recent scholarship calls into question the traditional realist-behavioralist
interpretation of the justices of the Fuller Court as motivated by a desire to
promote their policy preferences for laissez-faire economics. This essay
extends the assault on what might be referred to as the Holmesian para-
digm of the tum-of-the-century Court by exploring the jurisprudential
origins of that Court’s decision in the infamous Knight case, in which the
justices ruled that Congress had no authority under the commerce clause
to regulate production. By demonstrating that the Court’s distinction be-
tween commerce and manufacturing was a commonplace of nineteenth-
century constitutional law and not an "activist" innovation, I hope to
underscore the advantages of situating Supreme Court decision making in
the context of distinctive jurisprudential traditions. Revisiting this earlier
commerce
clause jurisprudence also sheds light on the contemporary Court’s
dramatic resurrection of this contentious pre-New Deal tradition in the
recent case of U.S. v. Lopez (1995).
Is it more accurate to characterize Supreme Court decision making at the
turn-of-the-century as reflecting an unprecedented and illegitimate deviation
from an inherited constitutional tradition-where conservative justices
NOTE: Thanks to Walt Stone for overall support, Francene Engel for her diligent re-
search, and the three anonymous reviewers for their constructive comments. All
of these folks tried to improve the final product, but they could only do so much.
415


aggressively ignored or rewrote precedent in order to promote their prefer-
ence for laissez-faire economics-or is it more accurately viewed as an unfortu-
nate commitment to an inherited jurisprudential tradition that was becoming
increasingly anachronistic in light of unprecedented changes in economic and
social relations?’
Up until recently this latter characterization would have been almost un-
imaginable. It has been a centerpiece of much of the New Deal and post-New Deal
historiography on the tum-of-the-century Court that too many of those justices
were engaging in conservative judicial activism, with activism being defined as a
style of decision making that is preoccupied with reaching desired results rather
than interpreting existing law (for an overview of the historiography see Gillman
1993: 1-11). One exemplar of Fuller Court decision making, Lochner v New York,
198 U.S. 45 (1905), has even given rise to the modem epithet for indefensible
judicial activism-&dquo;lochnerizing&dquo;-mostly because it had been assumed that the
majority in that case had created a phony right to &dquo;liberty of contract&dquo; as the basis
for striking down a law limiting the number of hours bakers were allowed to work
(Wiecek 1988: 123-25). This interpretation not only influenced a generation of
constitutional historians; it also had an important impact on political scientists
studying public law, in the sense that it lent legitimacy to the decision in the 1930s
and 1940s to devise studies of judicial behavior that focused on the conventional
policy preferences of judges rather than on a judges attachment to jurisprudential
traditions.
Revisiting the Fuller Court’s commerce clause jurisprudence gives us an
opportunity to reconsider whether it is possible adequately to understand
Supreme Court decision making with reference to conventional partisan la-
bels or policy preferences rather than a distinctive set of constitutional prin-
ciples and purposes. Moreover, contemporary Court scholars have a dramatic
new reason to reacquaint themselves with this jurisprudence. Just recently,
one hundred years after the Court handed down one of its most notorious
decisions, U. S. v. E. C. Knight Company, 156 U.S. 1 (1895), prohibiting the
national government from using its authority over interstate commerce to regu-
late manufacturing, the justices in U. S. v. Lopez, no. 93-1260 (1995) ruled
that Congress had no authority under the commerce clause to regulate the
possession of firearms near schools. It was the first case since NLRB v. Jones &
Laughlin Steel Corporation, 301 U.S. 1 (1937), in which the Court found rea-
1
There are good reasons to object to this way of framing the issue. After all, constitu-
tional interpretation has always been a contested terrain and the contours of the terrain
are almost always changing under the weight of practitioners. Still (and forgive the
extended metaphor), as with all practices, there are times when it is possible to trace
well-worn paths and distinguish those who follow in the footsteps of others from those
who act as pathbreakers.
416


son to second-guess a congressional determination that a local activity had a
strong enough effect on interstate commerce to qualify as an object of federal
regulation. More specifically, in his concurring opinion, Justice Thomas took
the time to remind the Court and the country of the Knight Court’s distinction
between commerce and production. Thus the Lopez case may foreshadow a
reprise of a forty-two-year period in constitutional history, ushered in by Knight,
where many justices worked hard to protect a realm of state authority against
what they perceived to be the illegitimate encroachments of the national gov-
ernment. The efforts of those justices eventually culminated in a constitu-
tional crisis over the New Deal-a crisis that only ended when the Court,
after having to cope with what is referred to by Justice Souter in his Lopez
dissent as one of its &dquo;most chastening experiences,&dquo; relented and accepted a
more expansive conception of federal commerce power.
It is a welcome development that Professor Mendelson has joined the
discussion of the origins of the Fuller Court’s commerce clause jurisprudence.
The article by Clinton (1994a) that I discussed earlier (Gillman 1994a) was
originally written as part of a tribute to Professor Mendelson-a fitting one,
considering how he has devoted considerable energy to comparing contem-
porary liberal justices with tum-of-the-century judicial &dquo;activists&dquo; and defending
Marshall’s jurisprudence as more appropriately constrained than either (see
Mendelson 1993 and 1982). What is most welcome with respect to the issue
under discussion is Professor Mendelson’s tight summary of the conventional
narrative of Lochner era Supreme Court decision making: around the 1890s
the Court began to exhibit an unprecedented level of activism in support of
laissez-faire constitutionalism on behalf of &dquo;the captains of industry&dquo;; in sup-
port of this blatantly political agenda Marshall’s dicta &dquo;was often perverted to
2
Mendelson bristles at the suggestion that there might be a "political agenda" behind his
scholarship. I should point out that the reference in the title of my original essay to "the
politics of constitutional history" was designed to point out that the "struggle over
Marshall" has political implications for debates about the legitimacy of the modem
Court’s jurisprudence (Gillman 1994a). Not all of the Marshall scholars mentioned in
my previous article are overtly interested in applying their work to contemporary de-
bates, but many are, and none more so than Mendelson, who has been proudly advanc-
ing his critique of Warren era liberal jurisprudence for decades. Still, this observation
is not meant to call into question the legitimacy of any of this scholarship, most of
which I admire quite a bit. Mendelson for example has devoted much of his distin-
guished career to keeping alive an interest in constitutional history and analysis during
a time when behavioralists were trying to convince their colleagues that these tradi-
tional lines of inquiry were marginal or irrelevant to the serious, scientific study of
judicial politics. His critiques of the attempts on the part of some behavioralists to
characterize judicial votes in terms of conventional political attitudes are classic and
still deserve the attention of the field (Mendelson 1963 and 1964).
417


serve alien purposes&dquo;; and in discussing the scope of congressional authority
to regulate commerce the justices made too much of Marshall’s &dquo;soothing pro-
state talk&dquo; and ignored his more general interest in supporting &dquo;broad con-
gressional authority.&dquo; More specifically, Professor Mendelson charges that the
Court’s decision in Knight represented &dquo;a major turning point in constitutional
doctrine-a triumph of judicial lawmaking,&dquo; meaning that the justices on this
&dquo;activist tribunal&dquo; were intent on advancing social Darwinism and laissez-faire
economics &dquo;regardless of law, precedent, dicta, or public opinion&dquo; (Mendelson
1996).
Before turning to the specific question of the origins of the Fuller Court’s
discussion of national power under the commerce clause it should be pointed
out that Professor Mendelson’s general remarks about the turn-of-the-century
Court seem insufficiently attentive to a developing revisionist interpretation
of that period of American constitutional development. For some years now
what might be referred to as the Holmesian paradigm of the period-named
after Holmes’ accusation in his Lochner dissent that the majority was deciding
the case on the basis of its commitment to laissez-faire economics rather than
on the...

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