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The Constitution Besieged offers a compelling reinterpretation of one of the most notorious periods in American constitutional history. In the decades following the Civil War, federal and state judges struck down as unconstitutional a great deal of innovative social and economic legislation. Scholars have traditionally viewed this as the work of a conservative judiciary more interested in promoting laissez-faire economics than in interpreting the Constitution. Gillman challenges this scholarly orthodoxy by showing how these judges were in fact observing a long-standing constitutional prohibition against "class legislation." Originally published in cloth by Duke University Press, this book received the 1994 C. Herman Pritchett Award for the "Best Book in the Field of Law and Courts," awarded by the Law and Courts Section of the American Political Science Association.
E-Book Content
The Constitution Besieged
HOWARD
GILLMAN
The Constitution Besieged The Rise and Demise of Lochner Era Police Powers Jurisprudence
DUKE UNIVERSITY PRESS
Durham and London
1993
© 1993 Duke University Press All rights reserved Printed in the United States of America on acid-free paper 00 Library of Congress Cataloging-in-Publication Data appear on the last printed page of this book.
To the memory of my parents, Stan and Charlyne Gillman
Contents
Acknowledgments Introduction
IX
I
CHAPTER ONE
The Origins of Lochner Era Police Powers
Jurisprudence
I9
The Founders' Vision of a Republic Free of Factional Politics Political Equality and Market Liberty in Jacksonian America The Formative Years of Nineteenth-Century Police Powers Jurisprudence 45
22
33
The Master Principle of Neutrality and the Rise of Class Conflict 6 I
CHAPTER TWO
The Supreme Court Considers the Police Powers 64 Industrialization, Class Conflict, and the Neutral State 76 State Courts Respond to the Challenge of Class Conflict 86 CHAPTER THREE
Realism
The Old Constitutionalism and the New
IOI
The Tradition of the Neutral Polity and the Regulation of Business 104 Labor Legislation, the Neutral Polity, and the Bumpy Road to Lochner Lochner and the New Realism 132.
114
viii Contents
The Constitution Besieged
CHAPTER FOUR
147
The Assault on Government Neutrality and Traditional Police Powers Jurisprudence 150 The Minimum Wage and the Fateful Persistence of Traditional Police Power Limits 158 The Collapse of Traditional Police Powers Jurisprudence 175 Afterword Notes
195
207
Bibliography Table of Cases Index
297
269 291
Acknowledgments
In the early stages of this project I received invaluable support and guidance from Bob Gerstein, Doug Hobbs, and Joyce Appleby. Each of them read the initial drafts of the manuscript and shared with me their considerable expertise on judicial politics and American political (and legal) development. Willie Forbath, Bill Roy, and Bob Welsh also helped me clarify important features of the argument. Clyde Barrow took the time to read a later version of the manuscript; I am grateful that I was able to benefit from his thoughtful advice and familiarity with sources relating to the development of American political thought. At one point or another I also received helpful comments from Bob Gordon, Mark Tushnet, Rick Funston, Barbara Sinclair, and Lief Carter. Mindy Conner, from Duke University Press, did an extraordinary job copyediting the manuscript. I deeply appreciate the efforts of these friends, colleagues, and acquaintances to make this manuscript more coherent, relevant, and interesting. If their efforts are