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Liberty, Property, and Government: Constitutional Interpretation before the New Deal

Liberty, Property, and Government: Constitutional Interpretation before the New Deal "Americans," write the editors of this useful and provocative collection, "cannot fully understand the meaning and significance of the Federal Constitution--and of the kind of society this Constitution presupposed and was established to support and maintain--without understanding the changing role and significance of constitutional protections of private property and contractual freedom throughout our history" (p. 1). Like so much of our constitutional history, this too is the story of a continuing tension between competing objectives, in this case preserving the integrity of property and contract as the cornerstones of a free society on the one hand and maintaining the stability of a democratic order amid unrelenting social change on the other. If the editors' allusions to the suppositions of the Framers are a signal of their own view as to the proper balance between the economic liberty of the individual and the police powers of the state, the eight contributors themselves--five historians, two professors of law, and a political scientist--offer both a range of perspectives on the history and jurisprudence of the controversy and a bit of its substantive flavor in our own time.

Mary Cornelia Porter surveys the debate through the lens of Lochner v. New York, the infamous harbinger of thirty years of hostile judicial scrutiny of regulatory legislation in the name of a "liberty of contract" found nowhere in the text of the Constitution, noting that if the particular form of superlegislating characteristic of the era has been discredited since its repudiation by the Court in 1937, "Lochnerizing" itself lives on, its animating principle of judicial supremacy serving new and varied masters. Attempts from all points of the political compass since the 1960s, first to define specific favored interests as "liberty" or "property" within the meaning of the Fourteenth Amendment and then to use the Due Process Clause to shield those interests from regulation, underscore the problematic nature of these terms in constitutional theory and motivate an illuminating discussion by Glen Robinson of their shifting definitions and significance in American jurisprudence. If the emphasis on philosophical rather than historical context in Robinson's essay and his primary focus on constitutional developments since 1970 suggest the boundaries of legal scholarship in this area, the historian Harold Hyman offers a useful corrective in his excellent study of the efforts of Congress and the federal courts in the years between 1865 and 1873 to incorporate the civil rights of both whites and blacks within older, recognized forms of property and to protect them against legislative encroachment, efforts that foundered on the narrow interpretation of the Fourteenth Amendment in the Slaughterhouse Cases.

The disciplinary chasm separating the historians from the jurisprudence is again apparent, this time more implicitly, in the essays of Richard Epstein and Harry Schneiber. Epstein's subject is the Commerce Clause, which purports to divide legislative authority over economic affairs between states and the federal government by granting Congress only the power "to regulate commerce . . . among the several states," but which since 1942 has been interpreted by the Court to extend Washington's reach, at the expense of the states, to the smallest details of individual behavior in the marketplace. Much of the power of Epstein's piece derives from his perceptive identification of the New Deal Commerce Clause cases as a genuine revolution, a judicial coup that stood the federal bargain of 1787 on its head and that he views with undisdguised alarm, and from the unapologetic way in which he marshals legal, political, and historical materials in support of his cause.

But if Epstein's case analysis is deft and sophisticated, and his political arguments subtle and inventive, a contentious Harry Scheiber gives readers cause to suspect Epstein's rendering of the relevant history. Scheiber's subject is eminent domain rather than the Commerce Clause, but his target nonetheless is Richard Epstein, author of an influential recent study of eminent domain and its relation to economic and politcal liberty. "Minimalists" like Epstein, Scheiber argues, look back to a golden era in American history in which courts were consistently solicitous of property and uniformly hostile to the attempts of legislatures to regulate or seize it without the "just compensation" guaranteed by the Constitution. Drawing on a host of materials, ranging from administrative reports to state court cases to the records of constitutional conventions, Scheiber shows the reality to have been somewhat more complex: that in practice, "eminent domain law supported enormous discretion in the legislature and strong state action--justified by doctrines of sovereignty and of 'public rights'--usually with serious adverse claims of vested private property rights" (p. 225).

Similar disputes arise even among the historians themselves, as the contrasting efforts of Tony Freyer and Alan Jones to appropriate the idea of republicanism for their own purposes makes clear. Freyer, arguing that the republican values of the Framers were a powerful influence on the antitrust movement, stresses the libertarian aspects of those values, characterizing them as "the conviction that true liberty depended upon the individual remaining economically independent in order to participate in public affairs, which in turn fostered the good of the commonwealth" (p. 118). Jones, in contrast, bases his claims about the role of republicanism in shaping the response of midwestern legislatures to the coming of the railroads on a definition that emphasizes a rather different face of republican virtue, the willingness "to sacrifice private interests to the love of one's country and to the public good" (pp. 239-40). In such contest as these, with the combatants separated by ideology and perspective as well as by discipline, the sensitivity of historical truth to the identity of the author is put in bold relief, and readers not themselves familiar with the terrain of the battlefield form strong opinions only at their peril.

A desultory sketch by Paul Murphy of the sociological jurisprudence of Oliver Wendell Holmes, Louis D. Brandeis, and Roscoe Pound completes the collection. But despite the inevitable unevenness of its concern and its misleading subtitle (only four of the essays deal with constitutional interpretation as such and several are primarily concerned with the years since 1945), the cross-disciplinary quality of the collection and the palpable sense of the openness of the issues it raises make this a valuable contribution to American legal history.

Richard P. Adelstein is professor of economics at Wesleyan University and a member of the Connecticut Bar, and he has written in the field of law and economics. His current research is concerned with the evolution of large-scale forms of economic and political organization and the concurrent development of collectivist ideolody in the United States during the nineteenth and twentieth centuries. He is the author of "'Islands of Conscious Power': Louis D. Brandeis and the Modern Corporation," Business History Review (1989) and "The Nation as an Economic Unit: Keynes, Roosevelt and the Managerial Ideal," Journal of American History (1991).
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Author:Adelstein, Richard P.
Publication:Business History Review
Article Type:Book Review
Date:Mar 22, 1990
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