The decline of legal classicism and the evolution of New Deal constitutionalism.

AuthorOlken, Samuel R.
PositionThe Evolution of Theory: Discerning the Catalysts of Constitutional Change


The constitutional revolution of the New Deal era was neither swift nor the calculated response of embattled jurists to the external pressures of politics and culture. More evolutionary than revolutionary, the transformation of the Supreme Court's constitutional jurisprudence of economic liberty occurred in an incremental manner that was non-linear in both its chronology and scope. Although external matters such as the appointment of more progressive Justices between 1925 and 1941, in addition to the catalytic effect of the Great Depression, were significant elements in this jurisprudential change, the Court's adoption of a more deferential approach towards public regulation of private economic affairs (1) was primarily the product of a series of internal doctrinal developments. Over the last quarter of a century historians and legal scholars have debated both the nature of this jurisprudential shift and its rationale. In an effort to deconstruct, or perhaps reconstruct, what happened nearly seventy-five years ago, they have also examined in some depth the characteristics of Lochner era police powers jurisprudence. (2) Not surprisingly, a broad range of explanations has emerged with no real unifying theory about why or how the Supreme Court altered its views about public control of private economic activity. (3) There even persists some disagreement about the actual timing of this change. (4)

Interestingly, the role that legal classicism itself played in the transformation of the Court's constitutional jurisprudence has been somewhat overlooked. Notwithstanding classical legal thought's obvious contribution to this jurisprudential change with the erosion of its principles as jurists struggled to apply its tenets to the problems of the New Deal era--a subject that has logically concerned many scholars (5)--there has been relatively little attention afforded to the manner in which some aspects of legal classicism actually helped facilitate the jurisprudential shift. This shift was one that displaced a structure of thought and set of ideologies that pervaded constitutional law throughout the late nineteenth and early twentieth centuries. By the end of the 1930s, a divided Court adopted a more flexible and pragmatic approach towards assessing the constitutional limits of public regulation of private economic activity, one that featured a conscious effort to apply the Constitution to changing economic conditions and balanced public power and private rights. Yet this transformation in part was shaped by the persistent influence of legal classicism, as the Justices grappled with the parameters of local economic regulation during a period that challenged their assumptions about the role of judicial review and the nature of constitutional limitations. Consideration of the interplay between legal classicism and the emergence of New Deal constitutional adaptivity on the Supreme Court underscores the evolutionary nature of this jurisprudential shift and its essentially internal characteristics.

This Article explores how some of the salient characteristics of classical legal thought influenced the evolution of the Supreme Court's constitutional jurisprudence during the New Deal era. It focuses upon the Court's jurisprudence of economic liberty in the context of substantive due process. Though a similar pattern of evolution occurred in the Court's Commerce Clause jurisprudence, examination of this area of constitutional development is beyond the scope of this Article. Part I provides an overview of legal classicism and its influence upon late nineteenth and early twentieth-century constitutional law. The next Part examines the paradox of legal classicism and its eventual decline. The final Part analyzes the interplay between legal classicism and the evolution of New Deal constitutionalism.


    Throughout the late nineteenth and well into the twentieth century, constitutional law derived much of its analytical and interpretative framework from classical legal thought. Reflective of the notion that "law was derived from universal principles of justice and moral order," (6) legal classicism functioned more as a highly conceptual structure of thought than a unified set of principles, in which abstraction rather than factual context informed adjudication. Essentially a bundle of complementary concepts, (7) legal classicism reflected a largely static view of the law in which jurists viewed themselves as umpires who used abstract principles to adumbrate the boundaries of power. (8) Through deductive reasoning, and with an avowed eschewal of policymaking, classical jurists sought to apply the law, which they found, rather than made, in an objective and seemingly neutral manner. (9) "Impartial administration of fixed rules" (10) rather than personal judicial discretion were the lodestones of classical adjudication.

    1. Formalism

      The manner in which jurists trained in classical legal thought decided cases revealed the insular nature of an integrated system of thought which emphasized the primacy of rules and precedent and regarded non-legal data as irrelevant to the task of resolving legal disputes. A prime characteristic of legal classicism was the extent to which its adherents employed a categorical mode of analysis in support of formal, abstract concepts such as liberty of contract and dual federalism.

      Formalism, with its attendant categories of distinction, allowed classical jurists to distinguish between permissible and impermissible types of economic regulation in order to preserve individual liberty. For example, the Court's insistence, despite economic facts to the contrary, that industrial production (11) and agricultural cultivation (12) preceded commerce manifested the formalistic concept of interstate commerce that characterized the Court's Commerce Clause jurisprudence for nearly fifty years in the late nineteenth century. Formalism also marked the Court's sterile analysis of the Fourteenth Amendment in the Civil Rights Cases (13) as well as in Plessy v. Ferguson. (14) Judicial formalism also had the effect of reinforcing another aspect of classical legal thought: the notion of dual federalism, which both limited the regulatory authority of the federal government (15) and preserved the residual authority of the states to regulate local matters within their presumed police powers to protect public health, safety, morals, and welfare. (16)

      Through the prism of legal classicism, jurists interpreted the Constitution and applied its provisions to disputes over the scope of governmental authority to regulate private economic affairs. Wary of the tyranny of democratic majorities and skeptical of political factions, classical jurists insisted upon differentiating between the public and private spheres and viewed themselves as guardians of private property and contract rights from the vicissitudes of class legislation. (17) An abiding concern with the neutrality of governmental regulation permeated classical legal thought during the late nineteenth and early twentieth centuries and suffused constitutional doctrines such as liberty of contract, the affectation doctrine, and other aspects of substantive due process. (18)

    2. Factional Aversion in Historical Perspective

      Aversion to political factions occupied a central role in classical legal thought, which emphasized the cardinal democratic value of equal operation of the law. (19) Aware of the vulnerability of private commercial interests in a democratic republic, (20) the constitutional Framers and early interpreters of the Constitution understood its structural and substantive components as essential to thwart the perils of class, or partial, laws enacted to promote the interests of some to the detriment of the public welfare. (21) This commitment to preserving private economic rights from arbitrary and unreasonable public incursion had long been a staple of Anglo-American constitutional thought. Eighteenth-century British Whig political reformers perceived class, or partial, legislation as detrimental to the public welfare, (22) and James Madison (23) and Alexander Hamilton (24) expressed similar sentiments in The Federalist Papers.

      Factional aversion also influenced American constitutional law. Chief Justice John Marshall's Contract Clause decisions of the early nineteenth century set forth the notion of vested rights as a means of curbing the noxious influence of political factions (25) and the role of the federal judiciary in protecting private economic rights from political factions. (26) Marshall's successor, Roger B. Taney, also was apprehensive about class legislation. In Charles River Bridge, (27) for instance, Taney, a Jacksonian Democrat, (28) refused to read an implied monopoly into a corporate charter of a bridge company and upheld a state's subsequent charter of another bridge. (29) Rejecting the claim that a political faction sought to divest the original proprietor of its vested rights through class legislation that created a second, competing bridge, (30) Taney explained that the resulting economic competition actually promoted the public welfare. (31)

      Thereafter, Thomas Cooley, a Michigan law professor and a justice on that state's supreme court, explained in his influential treatise, Constitutional Limitations, that partial laws, which he also referred to as class legislation, offended the notion of due process because they represented an illegitimate and unreasonable effort by the legislature to bestow benefits on one group at the expense of others. (32) Like Taney, Cooley, also a Jacksonian Democrat, was solicitous of the equal operation of the law, (33) and his exposition of the constitutional boundaries of local police powers reflected the classical legal preoccupation with distinguishing between private economic affairs and public control. His views also influenced the late nineteenth-century...

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