It was said by Toucqueville that all political questions in the US are sooner or later resolve into judicial questions. The legal process, the Supreme Court and a mythological regard for the constitution play a central role in American politics. Inherited from the British, the concept of the "rule of law and not of men" has defined American politics and granted its legal system a certain centrality. A key contention of the Presidency is always the power appoint justices to the supreme court. Conservatives will tell us that it is paramount that 'originalist' judges are appointed to the court to ensure conservative values will be upheld, while liberals will argue that 'living constitutionalists' should be appointed, so that the law conforms to contemporary moral standards (whatever that means). As such, any attempt at dealing with American politics must be able to deal with the question of law and the role of the Supreme Court. In this paper, I will begin to approach this question by presenting a political and structural logic of the Supreme Court and the Judiciary at large. Ifwe take this logic seriously, we must understand the judiciary as an independent political actor with perennial interests that are pursued regardless of whether or not the court is dominated by conservatives or liberals.
Furthermore, the judiciary is the epistemic center of the American political system as it formalizes in objective legal terms interpretative disputes. The judiciary should not be viewed as mere function of democratic process as though it can be controlled by simply ideologically re-staffing it, it is an institution with its own political goals. This view of the judiciary as a structural actor in american politics sees in it the ambition to create a formalised system of objective legal application, whilst at the same time recognizes that it molds the law instrumentally so as to allow the judiciary to maintain its position at the center of the American political order.
Part 1. The Judiciary, Legal Theory and Federal Positioning
A Federal Court
The supreme court is a part of the federal government, so it is logical to conclude that the court will always favour federal expansion to the detriment of the states. That this is not obvious to most is partly the result of the view that the actions of the court can be explained by the political ideologies dominant on the court. It is nonetheless the case that the federal judiciary has been on a constant track of expansion since its creation. This has been documented extensively in: The US Supreme Court and the Centralization of Federal Authority by Michael A. Dichio.
The most interesting finding of Dichio's study is that of the 624 landmark decisions in the period 1792-1997, 60% expanded federal authority, which is a persistent pattern even when broken down into smaller periods. Dichio makes the point that central state power in the US should not be assessed in reference to a Weberian-style welfare state. This clouds the extradordinary power which the federal governement in the US possesses, a power that the court plays an active role in expanding. When Dichio talks about central state expansion, he is talking about an expansion of jurisdiction and supervisory powers. Central state expansion in the US is not based on expansion of a bureacratic administration, but the raw expansion of supervisory powers and extension of jurisdiction to all areas of policy whether it be education, civil rights or economic regulation.
Authority is not mere administrative capacity for Dichio, but the justification of intervention and review. Judicial power centers around pronouncing judgements under the guise of legal objectivity, which grants them the right of interference. As such, legal power is most fundamentally epistemic, it centers around the ability to pronounce truth or falsehood, legality or non-legality. Review is the epistemic power of the judiciary, as the judiciary's fundamental role is to justify and rationalize someone else's right (or lack thereof) to do something. The point of this is not merely to resolve disputes, but to institutionalize normative expectations, and so the judiciary must bring everyone under a formal epistemic framework within which they can form predictable review.
The Supreme court expands federal authority by either invalidating a state/local law, or by affirming a federal law. More often, federal expansion comes through invalidation of local laws. Naturally, the court will also restrict federal authority at times, but that should often be read more as an attempt at battling other branches of the government and not as a genuine attempt at federal restriction. The way that the court positions itself in the federal government is largely a question of where to locate certain authorities, and restriction of federal authority can often be read as an attempt at positioning itself against congress or the executive.
Dichio also found in this study is that centralization is stable and persistent from the founding of the constitution to this day. There are no large deviations in expansion, and the narrative that the New Deal represented an anomaly of expansion of federal authority must be dismissed. The last of the big macro-findings is that when broken down into constitutional subject areas, civil rights and economic activity have been the biggest vehicles for central state expansion.
It is fair to say that the early critics of the consitution were absolutely right that central state expansion was built into the consitution, to the detriment of the states. To go even further, we could say that the civil war was built into the constitution. The founding fathers must have known that the constitution left many areas in the grey and that the ensuing conflicts between the states and the federal government had to be resolved. The judiciary was set up as the arbiter of these struggles, but as Jefferson knew, the court would never be a neutral institution.
To briefly sketch the logic of why this federal expansion has taken place through the courts, we must understand that the strength of the judiciary is tied up to the strength of the federal government. The judiciary doesn't enforce its own decisions, so to even have the rule of law, the courts have to rely on "law-enforcement", and this necessitates a strong federal government. Naturally, the federal judiciary is interested in using whatever influence it has in the federal government to exert control over important issues. As shown, economics has been one area where the judiciary has had massive influence and this control of economics is something that, as we shall see, the court has clinged unto throughout its entire existence.
When we look at the judiciary as being part of the federal government and its positioning within it and the country at large, we must view legal theory through this prism, and that is what i will present in this historical excursion on legal theory. Now that we have this macro-view of the court in mind we will turn towards the three big periods that constitute american history, the antebellum period 1780-1860, the post-civil war and reconstruction to the New Deal, 1860-1930, and the New Deal until today.
The Antebellum Judiciary, 1780-1860
The young nation that emerged after the revolution and was unified under the articles of confederation faced a large host of problems. The massive war debts had to be payed off, but the articles of confederation had left the union weak and without the ability to levy taxes, while the states were not cooperative. These are the issues that the constitutional convention set out to solve in 1787.
Present at the convention were two broad groups that had to compromise. Federalists, like Alexander Hamilton, wanted a strong central government with complete authority over taxes, commerce, and defense. While on the other hand, people like Roger Sherman wished for small government and strong state sovereignty. The constitution was a result of a compromise between these factions, but it is fair to say that the federalists won in the end.
The constitution had within it a tension between state sovereignty and the national government. The border between these two authorities was sufficiently vague, so that the inherent tensions had to be resolved by the supreme court, which favoured federal expansion. This is not something people were wholly unaware off though, which is why the court was in quite a precarious situation at its establishment. Many voices lashed out at the concept of an independent supreme court. Brutus, a congressman writing under a pseudonym, said; "There is no power above [judges] to control any of their decisions. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself".
Thomas Jefferson furiously hated the supreme court, anti-federalists understood that the federal judiciary was the primary branch that would enable the centralization of power from the states to the federal government. This prompted the court to be extremely cautious in the early years of the republic, rejecting all extra-juridical powers offered to it and establishing a norm of refusing to issue advisory opinions to the executive.
The first supreme court was a court that was in no way popular, and it had to legitimize and assert itself. This led to battles with the Jefferson administration, which will be covered following this, but the court wheathered this storm and the judiciary at large was able to focus on other matters. However, before we delve any deeper into what drove the antebellum judiciary and the process of legitimation, we will first take a look at the overall pattern of decisions from this period as Dichio presents it.
From 1792-1864 there is a total of 136 major decisions, and of these, 57.4% expanded federal authority. When broken down into subject-areas we see that issues of economic activity, federalism and taxation were the key areas for expansion of federal authority. Of the 38 cases regarding economic activity 62.2% expanded federal authority, the cases related to federalism expanded federal authority 68.2% of the time and taxation issues at a whopping 100%. It is important to remember though that only 3 cases related themselves to taxation. Nonetheless this period is marked by a massive expansion of federal authority in economic matters, but especially judicial influence on economics in general as we shall see.
As mentioned before, the judiciary understood that it was in a precarious positition and there is one pattern of this period which clearly shows this. Of the cases related directly to judicial power, the judiciary actually broke even in restriction and expansion at 47.2% each while 5.6% where seen as neutral decisions. This clearly shows that the judiciary understood that it had to be careful not to overstep its boundaries in its wider political relations. Besides, this period is also charactarized by the mounting sectional conflict between the north and the south, which would mean that the judiciary would have to be especially cautious. In terms of regulating the economy though, the judiciary was quite bold. Before looking at the judiciary and its economic aspirations, we will look at the process of legitimation of the judiciary which is exemplified in the battles between President Thomas Jefferson and Chief Justice John Marshall.
Jefferson and Marshall
To understand the conflict between Jefferson and the supreme court, we have to appreciate the transition of power that took place when Jefferson was elected president. Prior to Jefferson, the federal government had been dominated by the federalist party who were in complete control off all three branches. Jefferson had himself been a part of the Washington administration and vice-president under Adams, but in all these years he had always felt alienated by the two presidents because of the influence of Hamilton and his radical federalist ideology which didn't harmonate well with Jefferson's southern sentiment and republican world view. During the Adams administration the federal government had engaged in persecution off anti-federalist voices through the sedition and alien acts off 1798, which gave broad powers to squash dissenting voices. The federalists used these powers liberally, persecuting James Callender, writer on the Richmond Examiner, Congressman Matthew Lyon for his essay in the Vermont Journal, Benjamin Bache, editor of the Philadelphia Aurora and many other prominent Democratic-Republican writers who challenged the policies of the federal government.
These actions naturally sparked outrage among many Americans, especially Jefferson, and the complicitness of the supreme court in these prosecutions, namely Justice Chase's federalist sentiments that became apparent in his handling of these cases, left Jefferson with no love for the court. Jefferson expressed his ideological view of the court through his compact-theory of the constitution as seen in the Virginia and Georgia resolutions of 1798, which stipulated that the union was a compact of states and that it was up to the states to pronounce judgment on constitutional matters. This would naturally make the supreme court superfluous and this is what Jefferson wanted to do with the Supreme Court.
The attempts at squashing dissent by the federalist party only helped Jefferson's election and the republican "revolution". The Republicans won convincingly and took control of congress and the presidency, but as the federalists realized their defeat, they made sure to retreat into the judiciary. President Adams stacked the federal judiciary just before leaving office, passing the judiciary act of 1801, which created an extra layer of circuit courts, staffed with federalist judges aswell as appointing John Marshall, then secretary of state under Adams, as new chief justice of the supreme court.
As the republicans took power, many naturally wanted some kind of revenge and the first of this kind would be overturning the judiciary act. Apart from shrinking the size and reach of the judiciary through this overturning it also returned the court to the nuisance of circuit court riding. Prior to the judiciary act, supreme court justices had to travel around the country to adjudicate cases and they were severely limited in their reach and efficacy. Besides, travelling at this point in time was a hazardous task that exposed the justices to many dangers. The supreme court and the federal judiciary was now severely limited in its power and had to be very careful in its conduct. It turned out that Chief justice Marshall was competent for the task, but before he could show himself the hurdle of revenge had to be overcome.
The Jefferson administration switched focus to impeaching Federalist judges and first judge to fall was justice Pickering, a US district judge, who turned out to be an easy target because of his alcoholism and mental problems. Pickering was impeached and removed from service, but Jefferson and the republicans had their eyes on a bigger prize; Justice Chase of the supreme court. Chase had given himself a bad show during the sedition trial of James Callender, where he allegedly commited procedural errors and other cases where he uttered overtly partisan political remarks. This case was of massive importance, because if one justice could be impeached, what was stopping the republicans from impeaching Chief Justice Marshall himself?
Chase managed to survive the trial, being acquitted of all the charges, setting the precedent that partisanship is not enough to impeach a justice. Chase became the first and last supreme court justice to go through impeachment, his trial made sure that impeachment of justices would become incredibly hard in the future. But also, the impeachment trial demonstrated the degree to which the republicans wanted to purge the federal government of federalists aswell as their attempt at weakening the judiciary, which they saw as a major threat to their power. Had the federalists not managed to defend their retreat into the judiciary we might not ever have had the strong supreme court that we know today. During the federalist governments, the court was lowly in status and largely did the bidding of the executive and legislative branches. The new political order neccesitated for the court to assert itself, and so the impeachment of Chase was incredibly dangerous to the independece of the court.
This marked the inflection point after Jefferson enjoyed some initial success in curbing the supreme court through his overturning of the judiciary act and the impeachment of judges. The federalist supreme court retaliated through a string of cases that would curb the power of the executive and legislature. Chief among these was Marbury v. Madison (1803), which arose as a direct result of President Adams last minute judicial appointments.
It turned out that secretary of state James Madison was in posession of the commisions of these new judges, but Jefferson ordered him not to deliver these commisions despite the fact that these judges had already been confirmed by the old senate. Jefferson believed that these commisions were void because they hadn't been delivered in time, but this made one of the judges, William Marbury, file a lawsuit on the supreme court demanding that these comissions be delivered. Chief Justice Marshall naturally had to be very careful in this ruling, if he demanded that the administration turn over these documents he could expect harsh retribution, but if he did nothing he would be considered a traitor to his federalist allies.
Marshall managed to steer a moderate path by ruling that Marbury's case was just and that Madison should not have deprived him of these commisions, but that the supreme court had no jurisdiction to issue a mandamus in this case. This might seem counter-intuitive to the interests of the court, but Marshall used this last part very skillfully, by saying that "it is emphatically the province and duty of the judicial department to say what the law is". Marshall had concluded by interpreting the constitution that he didn't have jurisdiction in this case, but he used the case to establish that only the supreme court had access to constitutional interpretation. This is critical, because prior to this, the constitution was somewhat open to every branch of government, but Marshall made sure that the court would be reserved exclusive rights to rule on constitutional matters. This is something that is taken for granted today, but without Marshall's ruling this might not have been the case.
Marshall's ruling was therefore an implicit challenge to Jefferson's compact-theory of the constitution, where sovereign states could pronounce judgment on constitutional matters. Another tricky point in this case was what seemed like a denial of judicial review that actually achieved quite the opposite. The supreme court had come to the denial of their own jurisdiction through interpretation of the constitution, which made them strike down parts of the judiciary act of 1789, which they saw as unconstitutional because it gave them the power of judicial review, not stated in the constitution. But of course, this act was passed in congress and so, by striking it down, the court had given itself the power to review legislation by denying their ability to review legislation. This was part of the exclusive right of interpretation that Marshall claimed for the court.
The subtle genius of the move was that it effectively ruled that federal courts have the power to refuse to enact congressional legislation that they do not deem to be consistent with their interpretation of the constitution. This was a highly skillfull slight of hand. Marshall and the court had succeeded in giving the appearance that they were limiting their own power by denying their own jurisdiction in this case, but they had actually massively increased the scope of judicial power against congress and the executive.
A second case where Marshall would succesfully combat Jefferson, was the Aaron Burr Conspiracy trial, where the former vice-president was acused of treason. Burr was acused of attempting to establish an independent country in the southwest and intending to conquer Mexico with it. Burr had been vice-president during the first Jefferson administration, but their relationship had soured quite badly and Jefferson was adamant in his desire to see Burr hang for this alleged conspiracy. When it came to proving this conspiracy though, the prosecutors were struggling. The chief witness against Burr was General James Wilkinson, but Wilkinson had himself been a key part of Burr's conspiracy. Wilkinson had written Jefferson with the accusations against Burr, which Jefferson saw as proof enough, but when Wilkinson appeared as a witness he had to self-censure to hide his own complicetness in the case. This made the prosecution quite weak and everything naturally hinged on the written correspondence between Jefferson and Wilkinson. This allowed for Marshall to issue a subpoena against Jefferson, demanding that he hand over the papers. Jefferson naturally refused to do so, but the case against Burr fell apart because of this lack of evidence and Marshall ruled that the court had the right to subpoena the executive regardless of whether or not Jefferson wanted to comply.
Much to the dismay of Jefferson the court had managed to successfully assert itself and its place in American politics, by achieving the power of judicial review and the ability to curb executive privilege. After Jefferson, Marshall and the court continued to assert its power, and despite the court being stacked with nominal democratic-republicans during Jefferson's successors, the court still continued its track of federal judicial expansion. The anti-federalist democratic-republicans had achieved complete control of the federal government and all its branches, but there is no point in being anti-federal when you control the federal government. The federalist ideology ironically lived on in large parts of the democratic-republican party and especially on the supreme court.
The Instrumentalization of Law to Economic Ends
From a larger perspective we have seen that the Supreme Court expanded federal authority in 57.4% of its cases in this period, and that it happened primarily through cases related to commerce and economics. To show how the courts excersized this massive influence on economics, we have to look at the new view of legal theory and economics that arose in this period, which can only be characterized as an instrumental view of law.
Morton J. Horwitz argues in The transformation of American Law (1780-1860) that this period is characterized by an alliance between the judiciary and the burgeoning mercantile elite. Furthermore, he shows that the concept of laissez-faire economics only serves to hide the fact that the state does intervene in economic affairs, only, it does it primarily through the legal system and not through the tax-system, which is what is often implied when talking about state interference in economics. Horwitz's work is clearly inspired by Marxism, as such, he reproduces highly questionable Marxist notions of economic determinism. Nonetheless, his argument about how the legal profession engages in regulation of the economy is compelling, and allows for a unique view of the legal profession as an agent that conditions the direction of the economy.
One of the most important intellectual developments in the jurisprudence of this period is the rise of the instrumental conception of common law, breaking from the traditional notion of 'Natural Law'. This wasn't a total rejection, but the idea of natural law was profoundly altered. Instrumentalization wasn't an explicit school of thought, but more of a general mood and perception that arose as evident in the legal reasoning of the time. Many of the decisions of this period are incomprehensible without recognizing this.
The traditional notion of natural law that dominated legal discourse prior to the 19th-century was fundamentally conservative and anti-developmental in its outlook. Natural law was a set of abstract principles from which absolute truths could be deduced. This tradition saw law as something to be discovered or Divinated, it was always realized in a well established and customary manner. Natural Law was simply considered to be the method of uncovering truth in law and so there could be no development, law could not be created in such legal practices.
The main difference between the instrumental conception of law and the natural law tradition was the perception of the role of the judge. The old natural law tradition did not believe that judges played a central role in cases, they merely carried out the self-evident principles of the natural law, it was not their job to engage in complex considerations of social policy and change. On the other hand, the instrumental conception saw law as a means to an end. Law was to be used to advance social change and economic growth, and the judge now had a responsibility to promote change and progress and carry out the will of the people. This alteration came about through a complex set of discussions about the nature of common law and the role of the judge in common law adjudication, as well as a very tangible practical necessity for economic development in a country that shunned state meddling in economics through the tax-system.
Around the time of the revolution, no one considered it a problem to adopt the common law framework and English precedent:
"The generation of Americans who made the American Revolution had little difficulty in conceiving ofthe common law as a known and determinate body of legal doctrine. After more than a decade of insistence by political writers that "grand basis of the common law" was "the law of nature andits author," it is not surprising that the first Continental Congress in 1774 should maintain that Americans were "entitled to the common law" as well as to English statutes existing atthe time of colonization. […] Between 1776 and 1784, eleven of the thirteen original states adopted, directly or indirectly, some provisions for the reception of the common law as well as of limited classes of British statutes. In light of the attacks on the common law that began to appear within the next generation, it is remarkable that the revolutionary generation saw no difficulty in establishing the common law as the rule of decision in legal controversies." - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
There was no doubt in the revolutionary generation that the common law and natural law framework was the right one. The later criticisms that arose in the post-revolutionary generation were unthinkable at the time and there was a certain mythological regard for the principles of the common law. However, there were discussions at the time as to the reception of statutes and their relation to the common law. The common law framework and its grounding in precedent and natural law was preferred over statutory law, because it was believed that it best served to curtail the power of judges and because it had less reminiscence of British rule in the colonies. This is fairly ironic considering that the inability of the common law to restrain judicial power later led to massive criticism.
The conceptual difference between statutes and common law at the time was, as Horwitz put it: "In short, common law doctrines were derived from natural principles of justice, statutes were acts of will; common law rules were discovered, statutes were made". Statutes were seen as acts of will of a sovereign, and the revolutionary generation associated the "will of the sovereign" with english tyranny. Statutes were acts of will and therefore not dependent on natural principles or reason. The common law was supposedly discovered not created. The notion that these principles, once discovered, were self-evident meant that it was inconceivable that the common law judges could manipulate the general principles and vagueness of precedent to tyrannical ends.
The idea of self-evident common law principles came under heavy scrutiny in the early 19th Century where critique initially centered around issues of crime. The Supreme Court declared in 1812 that no conviction of a federal crime could happen without a statute. This brought to attention the fact that common law judges had extraordinary discretionay power in their adjudication and that without a statute any conviction would be completely arbitrary because of the vague generality of the common law. Common law crime adjudication without statutes simply left too much power in the hands of judges. This was a devastating critique because it not only undermined what had made the common law preferable in the first place, but also because it instantiated a fundamentally different jurisprudential conception.
Common law was no longer seen as a set of self-evident principles, but as contingent man-made rules. Law is something that man creates, and it is not derived from divine will or reason. These criticisms meant that common law proponents had to reinvent themselves, leading to the instrumental conception of law through appeals to popular sovereignty. Revolutionary America generally had an ambiguous relationship towards the idea of sovereignty. The idea of a single and indivisible sovereign was criticized because, as mentioned, it reminded everyone too much of british tyranny. Nonetheless, the idea of the one indivisible sovereign was accepted, only this sovereign was 'the people':
"As much as they attacked the Blackstonian conception of a single and indivisble sovereignty, Americans after the Revolution began widely to accept the modern theory of law underlying that conception. While they disputed the supremacy of parliament, they simultaneously argued that written constitutions were legitimate because they embodied the "will" of the people. And as they sought to redefine the basis of legal obligations in terms of popular sovereignty, they tended to assert the ultimate primacy of the legislature and of statute law. The result was that the original natural law foundation of common law rules began to disintegrate." - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
It is exactly this idea of popular sovereignty that saved the common law, even though the idea of popular sovereignty led many people to demand a total statutory codification of law:
"If the principle of popular sovereignty seemed to some to lead logically to complete legislative codification, orthodox legal writers like James Wilson sought to show instead that the common law power of judges was entirely compatible with the sovereignty principle. The emphasis in postrevolutionary legal thought on the consensual foundation of the common law was thus designed to demonstrate that common law judges actually constituted the "trustees" or "agents" of the sovereign people." - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
This paved the way for an instrumental conception of law where judges saw themselves as carrying out the general will of the people. Because the law was carried out on behalf of the will of the people, will rather than reason began to be seen as the basis for law, rationalizing the common law as an instrument of the will. Judges could claim legislative power, something unthinkable only a few years earlier, and they would use this to drive economic growth and change:
"By 1820 the legal landscape in America bore only the faintest resemblance to what existed forty years earlier. While the words were often the same, the structure of thought had dramatically changed and with it the theory of law. Law was no longer conceived of as an eternal set of principles expressed in custom and derived from natural law. Nor was it only regarded primarily as a body of rules designed to achieve justice only in the individual case. Instead, judges came to think of the common law as equally responsible with legislation for governing society and promoting socially desirable conduct. The emphasis on law as an instrument of policy encouraged innovation and allowed judges to formulate legal doctrine with the self-conscious goal of bringing about social change. And from this changed perspective, American law stood on the verge of what Daniel Boorstin had correctly called one of the great "creative outbursts of modern legal history."" - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
It should be quite apparent how this theoretical framework of an instrumental law served to legitimize the power of the judiciary. It confirmed what now seems obvious about common law judges, that they create law everytime they pass a sentence, but it also affirmed this and defended why it should be so. This is what legitimized the immense influence of the judiciary on economics, because they believed that it was their role to drive economic growth. This should of course be coupled with the understanding that the federal government did not wish to intervene in economics and facilitate economic redistribution because it would be an affront to the classical liberal principles of the time. But of course, the economy has to be regulated somehow and from the perspective of the federal government, if the judiciary carries out this job, they don't have to take an ideologically self-problematizing responsibility for this. Horwitz (unsurprisingly as a Marxist) views the judiciary of this period as largely using its power to redistribute wealth to the emerging bourgeois elite. This redistribution came about through innovating ideas about property, corporations, monopolies and contracts.
"The productive development of land and natural resources at the beginning of the nineteenth century drew into question many legal doctrines formulated in an agrarian economy. In the eighteenth century, the right to property had been the right to absolute dominion over land, and absolute dominion, it was assumed, conferred on an owner the power to prevent any use of his neighbor's land that conflicted with his own quiet enjoyment. […] Not until the nineteenth century did it become clear that, because this conception of ownership necessarily circumscribed the rights of others to develop their land, it was, in fact, incompatible with a commitment to absolute dominion. Logical difficulties had been easily concealed by experience, since the prevailing ideal of absolute property rights arose in a society in which a low level of economic activity made conflicts over land use extremely rare. As the spirit of economic development began to take hold of American society in the early years of the nineteenth century, however, the idea of property underwent a fundamental transformation – from a static agrarian conception entitling an owner to undisturbed enjoyment, to a dynamic, instrumental, and more abstract view of property that emphasized the newly paramount virtues of productive use and development." - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
The old conception of property did in no way serve to promote economic growth. Property ideas were explicitely anti-developmental, feudal and centered around an agrarian understanding of the economy and land. The right to absolute dominion over land was, as Horwitz points out, contradictory because it actually stymied the advancement of neighboring property. No one was allowed to develop their land if the neighbor could claim some kind of disturbance and therefore it would necessarily lead to a lack of absolute dominion. Two different theories about property undergirded the legal doctrines at the time. The first was the antidevelopmental theory that use of land was limited to 'natural use', which in this case meant agrarian use. The second was the priority of development, with the maxim "first in time is first in right". It would supossedly seem like the priority of development would allow for more economic development, but as Horwitz points out:
"Before the nineteenth century, however, the theory of priority was harnessed to the common antidevelopmental end. Where two neighboring parcels of land were underdeveloped, each owner could claim a right, based on priority, to prevent further development. Thus, depending on the level of economic development from which one begins to measure priority, the consequences of the theories of natural and prior use may be the same; since the lowest level of development is also the earliest, each party acquires a prior right to the land in its natural state." - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
Ultimately, this meant that a complete revision of the notion of property had to occur if technological and economic development was to be facilitated. Still, the priority of use allowed for the first initial steps towards a pro-developmental understanding of property. If priority of use is understood not on the basis of natural use, but "from the time that a new technology appears", then the rule of priority would give exclusive property rights to the man first to develop. The rule of priority became dominant in the attempt to promote economic growth, and it was used to reward people that took economic risks. This would not last though, because the rule of priority prioritizes certain stages of developments of property and in time this rule started to work against the interests it initially supported. Once "new" property would become challenged by newer forms of property, which would then damage their hegemony:
"Viewed retrospectively, one is tempted to see a Machiavellian hand in this process. How better to develop an economy than initially to provide the first developers with guarantees against future competitive injury? And once development has reached a certain level, can the claims of still greater efficiency through competition be denied? By changing the rules and disguising the changes in the complexities of technical legal doctrine, the facade of economic security can be maintained even as new property is allowed to sweep away the old" - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
As Horwitz points out here, judges were literally willing to ping-pong between different theories of property in order to facilitate economic growth with no regards for consistency. This clearly shows the instrumental view of law, where the end justifies the means, and where the judge should not be measured on how closely he can carry out the law, but how he squeezes the law for any use.
In praxis, these changing conceptions of property can be seen in the development of water rights and mills:
"The extensive construction of mills and dams at the end of the eighteenth and beginning of the nineteenth centuries gave rise to the first important legal questions bearing on the relationship of property law to private economic development, and it was here that the antidevelopmental doctrines of the common law first clashed with the spirit of economic improvement. As a result, the evolving law of water rights had a greater impact than any other branch of law on the effort to adapt private law doctrines to the movement for economic growth." - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
Three different styles of legal suits constituted the controversy over water rights. The first was an action by a downstream owner against an upstream owner for diverting the stream or for obstructing the natural flow of water. With dams, a second kind of suit concerned itself with an upstream miller against a downstream miller for throwing water back so to impede the wheels of the upper mill. In the third kind, a landowner would sue a millowner for flooding his land by raising a dam. A long list of cases facilitated the protection of mill owners. The Massachusetts supreme court ruled in Shoery v. Gorell (1783) that "without long usage sufficient to confer a prescriptive right, there was no legal basis for preventing a newcomer from obstructing a stream". The New York supreme court held in Palmer v. Mulligan (1805) "that an upper riparian landowner could obstruct the flow of water for mill purposes". In Platt v. Johnson (1818) the court "held in favour of an upstream mill owner whose dam occasionally detained the flow of water for a number of days".
More importantly though, is the Massachusetts Mill acts in the 1795 statute that made it near impossible to get relief for property damaged by mills:
"The exclusive remedial procedures of the mill acts foreclosed four important alternative avenues to relief. First, they cut off the traditional action for trespass to land, in which a plaintiff was not required to prove actual injury in order to recover. In a mill act proceeding a defendent could escape all liability by showing that, on balance, flooding actually benefited the plaintiff. Second, the statutory damage formula removed the posibility of imposing punitive damages in trespass or nuisance. The common law view had been that unless punitive damages could be imposed, it might pay the wrongdoer to "keep it up forever; and thus one individual will be enabled to take from another his property against his consent, and detain it from him as long as he pleases." A third form of relief at common law allowed an affected landowner to resort to self-help to abate a nuisance. Indeed, there are a number of reported cases in which mill dams not covered by the protection of mill acts were torn down by neighbors claiming to enforce their common law rights. Finally, the acts foreclosed the posibility of permanently enjoining a mill owner for having created a nuisance." - Morton J. Horwitz, The Transformation of American Law, 1780-1860.
This model was slowly adopted by more states and the issues relating to water rights were important in setting the tone for the generally maleable view of property that arose in this period.
Corporations, Competition and Monopolies
The instrumental view of property resulted in a common law that favoured competition. The relationship between state and business enterprise was also altered. When it comes to corporations, one case occupies the center of importance in this period, the so called Darthmouth College case (1819). Darthmouth college was granted land as a corporation prior to the revolution, but in 1816 the New Hampshire legislature altered this charter in order to reinstate the deposed president of the college and place appointment under the governor, which effectively turned the school from a private into a public institution.
This case was significant because of its influence on corporate law, ruling that a corporate charter was a contract between a public and a private institution, and that the New Hampshire legislature had no right to interfere in the internal business of the college. This is quite important, because prior to this ruling, a corporate charter was in fact seen as an extension of the public and there was no strong juridical distinction between public and private. Furthermore, it also shows how the court protected corporations against local intervention, thereby strenghtening federal authority. While Dartmouth College should not be considered as representative of the mercentile elite emerging at the time, it is of course clear that this would have wide implications for the power of corporations and that the federal judiciary would side with corporate interests against state-level action to further their mutual interests. In this way, Darthmouth College V. Woodward is emblematic of this entire period in which this pattern of judicial intervention at the state level to the benefit of corporate interests is a reoccuring theme.
This case was to some extent an inevitability because of the rise of corporations. At the time, many public institutions had resorted to employing "private" corporations to do important public work, like Massachusetts in 1804 where a corporation was created to lay a street. Dartmouth College V. Woodward was in some ways a response to this development and the fact that it was clear that the conception of the corporation as a public body did not hold up. This case solidified the public/private distinction and freed the corporation from public control by giving corporate charters the status of contract. This was crucial for the development of corporations as we know of them today and therefore it occupies a central place in the jurisprudence of this period.
The Darthmouth College case signified the rise of the corporation as a private enterprise independent of the public, while this case stood for an end to the favouritization of individual corporations and a judicial praxis of supporting economic competition between corporations. As Horwitz put it: "Established judicial doctrines concerning exclusive franchises had become fixed just as canals and bridges were beginning to displace turnpikes and ferries on a large scale. Though earlier grants of monopoly privileges may have been necessary in an underdeveloped society in order to promote private investment, the restrictive consequences of these grants were becoming apparent by the second quarter of the nineteenth century." Prior to this decision monopolies had been protected to facilitate economic growth and development of property, but as these monopolies became settled, technological development was threatened and the judiciary resorted to supporting competition instead of monopolies so that new kinds of property and technology were privileged.
Regarding competition, there is another landmark case that defines this period, namely the Charles River Bridge v. Warren Bridge (1837). The case itself centered around two bridges in Boston. The Charles River Bridge erected their bridge in 1785 to connect Boston and Charlestown, but in 1827 the Massachusetts legislature authorized the creation of a neighboring bridge, the Warren bridge. Both bridges charged a toll for passage, but only one year after the Warren bridge was built, the Charles River Bridge had lost massive revenues. Charles River Bridge Corporation sued on the grounds that the creation of the rival bridge violated the contracts clause of the constitution stating that a state could not pass a bill impairing the obligation of a contract.
A supreme court 5-2 majority ruled in favour of Warren Bridge, stating that this case centered around the interpretation of contracts, and that this contract should be narrowly construed, which meant that the Charles River Bridge did not have exclusive or monopolistic rights. In terms of federal expansion this case should be seen as neutral, because the court merely upheld a bill within a state, and did not uphold it against the will of the federal government. More importantly though, this case signifies a turn towards contracts and the privileging of newer kinds of property against old, while also showing how the judiciary would pass through cycles of monopoly grants and monopoly abolishment.
It should come as no surprise that the development of contract-theory would have massive impact on all economic matters. Contract is essential for all things relating to employment, corporations and the relationship between economic agents. Prior to the instrumentalization of law, the theory of substanive justice was the dominant theory of contract interpretation. Substantive justice meant that the actual substance of the contract was seen as being the center of importance. The validity of a contract was based on the inherent fairness or equity of the contract. This would obviously have restrictive consequences on what one could do with a contract. Because any given notion of subtantive justice and equity is vague, it necessarily means that contract arbitration becomes very uncertain.
What had to happen, was a movement towards a will-based theory of contract, where the source of the obligation of a contract was based on the convergence of wills between the contracting parties and not wether the contract was fair or not:
"Beginning with the first English treatise on contract, Powell's Essay Upon the Law of Contracts and Agreements (1790), a major feature of contract writing has been its denunciation of equitable conceptions of substantive justice as undermining the "rule of law". "It is absolutely necessary for the advantage of the public at large", Powell wrote, "that the rights of the subject should… depend upon certain and fixed principles of law, and not upon rules and constructions of equity, which when applied…, must be arbitrary and uncertain, depending, in the extent of their application, upon the will and caprice of the judge." The reason why equity "must be arbitrary and uncertain," Powell maintained, was that there could be no principles of substantive justice. A court of equity, for example, should not be permitted to refuse to enforce an agreement for simple "exorbitancy of price" because" it is the consent of parties alone, that fixes the just price of any thing, without reference to the nature of things themselves, or to their intrinsic value…. Therefore," he concluded, "a man is obliged in conscience to perform a contract which he has entered into, although it be a hard one." The entire conceptual apparatus of modern contract doctrine – rules dealing with offer and acceptance, the evidentiary function of consideration, and especially canons of interpretation – arose to express this will theory of contract." – Morton J Horwitz, The Transformation of American Law, 1780-1860
Accompanying this newfound theoretical backdrop, the rise of expectation damages constituted an important change in contract law. Prior to this, a contract was viewed closely in line with property and title theory, whereby a contract is the exchange of titles to property. But with expectation damages, contracts were legally abstracted away from tangible face to face exchange between two men, redefining contract as something that created an expected return. This also meant that "Contract becomes an instrument for protecting against changes in supply and price in a market economy". This will-based conception of contract allowed for employers to make incredibly unfavourable contracts for their workers, like withholding payments for long set terms under working conditions that would make most people leave before the end and therefore leave without payment.
The Court and Sectional Conflict
When one surveys the antebellum period the impression arises that the judiciary didn't engage with the question of slavery and secession until the last minute. The judiciary spent more energy on questions of commerce and economics, while congress was increasingly consumed by the question of slavery and the sectional conflict. Nonetheless, the question of slavery would have to be put before the court in the end, and that is what happened in the infamous Dredd Scott v. Sanford (1857) case.
Although seemingly innocuous, the case turned out to pass a judicial verdict on the entire slavery question, legitimizing it and squashing the Missouri Compromise which allowed for Missouri's entrance into the union as a slavestate on the promise that slavery would be prohibited from expanding north of the 36*30' parallel. The case concerned itself with the slave Dredd Scott who, in 1833, was moved by his owner to the Wisconsin territory where slavery was outlawed due to the Missouri compromise. Because Scott's owner was away most of the time, Scott chose to hire himself out as a worker in this period and tried to save money to buy himself free, but when his owner died and ownership transferred to his wife, he was refused to buy himself free. Scott sued in the state court on the ground that he was legally free because he lived in a free state. Many state and federal court suits later this ended up in the supreme court.
Chief Justice Taney and the supreme court ruled that the court could not entertain this case because Scott was not a citizen, the court had no jurisdiction to ban slavery in the U.S. territories and that the fifth amendment protected the rights of slave owners. The supreme court was staffed with a majority of southerners, who might have thought that they could settle the slavery question in this way, but the case only helped in creating mass outrage in the north and added fuel to the fire of conflict. This case became the center of debate in the years leading up to the secession and was particularly important for Lincoln. Lincoln never hid his disagreement with this ruling and quarrels between him and the court were to be expected as he was elected. The supreme court did try to exert influence on the war effort, but the conflict showed that the court has no power over someone with an army willing to obey them.
As the union army marched into Baltimore, they were met with attacks from southern sympathizers and the situation became bloody as the soldiers defended themselves. In response, Lincoln told the army to take control of Baltimore at all costs and to suspend habeas corpus if necessary. This would be challenged by Chief Justic Taney, after the arrest of John Merryman, on the US circuit court for the district of Maryland. Taney argued that the suspension of the habeas corpus was unconstitutional, stating that this right lay solely with congress and not with the president. Furthermore, Taney issued a writ of habeas corpus for Merryman. The union army in possession of Merryman refused and Taney even went so far as to order the arrest of the military command if they wouldn't turn over Merryman for a fair trial. Naturally, such a thing never happened, and Lincoln responded that he had the right as the executive and commander in chief to suspend the habeas corpus if he deemed it necessary, moreover, he stated that he was not obliged to obey these orders from Chief justice Taney because he saw them as a threat to his war effort.
There has been some speculation that Lincoln was even planning on arresting Taney for this upfront challenge to his order, but such a thing has never definitively been proved. The ineptitude of the court in this case clearly shows the major weakness of judges. The court was easily made superfluous in a situation where they faced a strong executive that control of enforcement and could safely ignore court orders as a result. The court seems to have got the message that Lincoln was willing to go all the way in this conflict, and in the following cases relating to habeas corpus and the war effort in general, they gave full support to Lincoln.
From Civil War to The New Deal, 1860-1930
The post-civil war period of reconstruction imposed a new political order in the United States. The general pattern of federal expansion via the supreme court stands at 57.9% of all cases during in this period. Interestingly enough, even though the economic category still constitutes the largest set of cases, it actually breaks almost even in its relation to federal expansion and restriction. Whereas, civil rights cases and fed vs. state/state vs. state cases constitute the biggest avenues of federal expansion through the courts. This is obviously explainable by the passage of the new amendments, particularly the 14th, which massively increased the power of the federal government in its ability to overpower the states. The defeat of the south also marked the downfall of the area that had the strongest tradition for anti-federal thought, which naturally allowed for the federal government to impose itself more overtly.
The shift away from economics as being the largest driver of federal expansion during this period is quite interesting though, because the courts didn't suddenly adopt a completely new ideology. But, just like the instrumental view of law was more of an attitude than a coherent system of legal reasoning, so the attitude changed post-civil war. The court continued to empower corporations, but where this praxis was initially something that supervened on the states and expanded federal authority, it was now something that served to protect monopolies and entrench their power. This brings us back to what was said about the cycle of monopoly creation and destruction. With an industrial market economy now well established, a new dogmatic and rigid legal formalism served to entrench the economic status quo that had created this transition. This protection of the economic status quo and the mercantile elite would inevitably lead to conflict between the judiciary and the state at large as the administrative bureacracy grew considerably.
Formalism vs. Legal Realism
"For seventy or eighty years after the American Revolution the major direction of common law policy reflected the overthrow of eighteenth century precommercial and antidevelopmental common law values. As political and economic power shifted to merchant and entepreneurial groups in the postrevolutionary period, they began to forge an alliance with the legal profession to advance their own interests through a transformation of the legal system. By around 1850 that transformation was largely completed. […] This transformation in American law both aided and ratified a major shift in power in an increasingly market-oriented society. By the middle of the nineteenth century the legal system had been reshaped to the advantage of men of commerce and industry at the expense of farmers, workers, consumers […] The rise of legal formalism can be fully correlated with the attainment of these substantive legal changes. If a flexible, instrumental conception of law was necessary to promote the transformation of the postrevolutionary American legal system, it was no longer needed once the major beneficiaries of the transformation had obtained the bulk of their objectives. Indeed, once successful, those groups could only benefit if both the recent origins and the foundations in policy and group self-interest of all newly established legal doctrines could be disguised. There were, in short, major advantages in creating an intellectual system which gave common law rules the appearance of being self-contained, apolitical, and inexorable, and which, by making "legal reasoning seem like mathematics,". – Morton J. Horwitz, The Transformation of American Law, 1780-1860
"Self-contained, apolitical and inexorable". This should ring a bell, because this kind of view of law was, in praxis, very similar to the old natural law framework that had been deconstructed with instrumentalism. The specifics of the law were of course quite different, but what it offered for the legal profession was very much the same; a closed system of a supposedly scientific legal inquiry, which creates a veneer of neutrality and objectivity.
The formalist jurisprudence that arose in this period is closely tied to the structural interests of the judiciary and its relation to the merchant class, but it is also a result of the increasing professionalization and standardization of disciplines that came into fashion during this period. Formalism served as an epistemic entrenchment of the status quo that had been achieved through the instrumentalization of the common law. Legal formalism was an attempt at creating a general theory of law organized under a unifed conceptual architecture.
Because the mythology of "the rule of laws and not of men" has been so defining in American political history, it is clear why legal formalism also created a sharp distinction between law and politics. To have the rule of law, it is not possible for law to be a result of politics, because then it wouldn't be the rule of law at all. Most people would find it quite intuitive that law is connected to politics. We all understand that a more conservative society will usually have more conservative laws and vice versa. But this idea of a scientific law that is neutral and objective has always been a central aspiration for the American legal profession and is necessary if one has to claim the rule of law. Systematic conceptual thinking and a sharp distinction between law and politics is a defining characteristic of legal formalism coupled with an empirical approach to case-studies.
"Through a process of systemization, integration, and abstraction of legal doctrine, they refined and tightened up what had previously been a loosely arranged, ad hoc system of legal classification. To understand late-nineteenth-century legal thought, one must first appreciate the significance of that process of systematization. - Morton J. Horwitz, The Transformation of American Law, 1870-1960
An important aspect of this systemization of the common law was the distinction between Public and Private Law. As we saw in the Darthmouth College Case (1819), where the public/private distinction was solidified to protect corporations, this trend was continued and an even sharper distinction arose where a coercive public law ended up constituting everything relating to crime and regulation, whereas, private law concerned itself with tort, contract, property and commercial law, which made private law a safe-haven for capital. This distinction was highly contradictory in nature because public law allowed for massive coercive power for politicians, where private law would not allow for much power to anyone except the judiciary and which, on the surface, reflected the idea of a self-regulating market and its invisible hand. From a structural perspective this protected the current economic monopolies and it only allowed for the judiciary to meddle in commerce affairs while the rest of the state was barred from intervening. This dinstinction also allowed for a more thorough definition of legal subjects under broad categories:
"Legal thinkers began to call for a more "philosophical" or "scientific" arrangement of the law while heaping scorn on the practical and functional classifications still in vogue. In contract law, the effort centered on attempts to subsume all rules and doctrines under the heading of "will". In tort law, there were various attempts to unite all sub-categories under the heading of duty. But the most prominent efforts at generalization focused on making "negligence" and "fault" the organizing concepts of the law of torts". Consequently, between 1870 and 1900, the architecture of law was once more rearranged, this time around general concepts that submerged the concrete particularity of the previous organizing schemes." – Morton J. Horwitz, The Transformation of American Law, 1870-1960
As Horwitz points out here, the scientific arrangement of law created a set of abstract principles from which legal verdicts could be worked out, which would allow for more legal certainty. Of course, this again has a certain reminiscence of the old natural law system, and as pointed out, it allowed for a "neutral" inquiry into law, but the natural law framework was based on first principles and a precedent that was not organized. Formalism was an organized system of precedent not based on moral first principles, but on broad "neutral" categories.
Part of this new system was also the standardization of legal education which happened in this period. An important event in this process was the introduction of the case method at Harvard Law School by Christopher Columbus Langdell in 1870. The case method was a new method of education in jurisprudence that systematized the common law and created a set of cases to be studied as part of the legal education. This system of cases allowed for an empirical study of the law under their different categories which acted as a new science of the law as it is. This was of course important because it created a standardized legal profession which was now schooled in the same "science" and could apply this in their legal work.
To bring this together with the newly passed amendments, the Slaughterhouse Cases (1873) are typical of the way the judges of this period used this legal framework in their continuing goal of protecting monopolies. The case came about when the Louisiana legislature passed a law that granted monopoly to the Crescent City Livestock Landing & Slaughterhouse Company to slaugther animals in New Orleans. The company had to comply with state rules on facilities, prices and output volume. The company should also allow for butchers to work on its ground at a set rate. Some local butchers sued the Lousiana legislature on the grounds that the law violated the privileges and immunities clause of the 14th amendment. They claimed that they had been unconstitutionally deprived of the privilege of operating slaugtherhouse companies and thereby from earning a living. The state courts ruled the law constitutional, which made the butchers appeal to the Supreme court. SCOTUS ruled that the law did not violate the Fourteenth Amendment because this amendment only forbids states from witholding privileges and immunities belonging to American citizenship, not state citizenship. The constitution does not require a state to grant special privileges to every one of its own citizens. It is widely agreed today that this reading of the 14th amendment renders the amendment pointless and it is clear that the court had the very clear goal in mind of protecting this new company and its monopoly, even though it happened to the detriment of the preexisting butchers in the area.
While the new legal theory and its standardization was important in creating a coherent legal profession, cases like this slowly unveiled the not so neutral aspect of this formalism. Two cases are of massive importance in the breakdown of the formalist system; Pollock v. Farmer's Loan & Trust Co. (1895) and Lochner v. New York (1905). These cases are important because they galvanized the progressive movement and became amunition for the legal realists and their critique of the formalist legal orthodoxy.
Pollock v. Farmer's Loan & Trust Co. (1895) came before the supreme court to challenge the Income Tax Act of 1894. The constitution allowed for direct taxation by states aswell as for the federal government, but the federal government could only impose direct taxation if those taxes could be apportioned proportionally among states in accordance with their representation in Congress. The court held that this tax was unconstitutional because it wasn't apportioned properly among the states and because such a thing was impossible. This also meant that all income tax was delayed until the passage of the Sixteenth Amendment in 1913.
The case was unpopular among progressives because it made social programs impossible for the government, but the case also hightligthed issues with the judiciary. The attempt by the judiciary to exert control of economic affairs and avoid direct state and government meddling was in the pre-civil war era also in the interest of the federal government. This was not the case anymore. The court now seemed to be at odds with the federal government and it held on to an old view of the constitution where the government did not have the power of taxation. Where the judiciary had earlier been a close collaborator of the federal government it now entered into conflict with it, which is something that becomes even more apparent with the later New Deal. The federal government simply couldn't afford to carry on the idea of the small state and the divergence of interests between the court and the federal government set up a conflict that the court could not win.
The second case, Lochner v. New York (1905), had an ideological character that became important for the progressive critique of classical legal thought. This case came about when the state of New York enacted a statute forbidding more than 60 hours work a week for bakers. The employer, Lochner, was accused of letting his bakers work more than 60 hours and after some appeals this ended up on the supreme court. The court ruled that the New York law was invalid because it interfered with the freedom of contract. Moreover, the court argued that there was no necessity for such a law because the working conditions were not that bad. This last part angered many progressives that believed quite the opposite. To many people this seemed like the court did not care about the wellbeing of workers and that the court was out of touch with the industrial society that they lived in.
This progressive critique merged into the legal realist movement. Legal realists certainly had progressive ends, but there is also more to be said about their technical critique of classical legal thought. The realist critique can be summed up in Justice Holme's maxim "General propositions do not decide concrete cases", which was also formulated by Roscoe Pound as a distinction between "law in books" and "Law in action". The realists did not believe that the broad categories employed in formalist theory were actually fitting when applied to concrete cases. This idea has a vast set of assumptions behind it, the most important of which being the revised role of the judge. The realists wanted to make apparent what judges were actually doing when deciding a case. No matter how much one attempts to portray law as a neutral science applied by judges, one cannot escape the fact that judges do engage in considerations over policy, law cannot be purely objective. This is something the realists wanted to make clear. They did not actually have a problem with this, but they wanted judges to affirm this and use the law to further progressive reforms.
A part of this was also a new conception about what law fundamentally was. Law was seen fundamentally a technique to further certain ends. This may again remind one of the instrumental conception of law that arose in the post-revolutionary generation. It is important to stress that, even though legal realism is often seen as more of an attitude than a coherent movement, legal realism is a complete break with natural law and classical legal thinking (formalism). The instrumental conception of law was still very much within the natural law and common law framework, and the words used were still the same.
Legal realism is a deconstruction of the idea of legal objectivity and an attempt at figuring out and affirming what judges really do, despite what they say. If one has to historicize this legal realism we must nonetheless still see the parallels between this line of thinking and the instrumental view of common law. There seems to be a kind of cycle within American legal thought whereby the legal profession erects closed systems that purport to be objective and scientific, whereafter this system is torn down and there is an attempt at affirming the actual power of the judge in a very overt way, which then loses its purpose and brings us back to the closed "objective" system of jurisprudence. This has been coined the pendulum swing of American legal theory, where the American legal profession will oscilate between realist thought and formalism.
The legal realists contributed a lot to the New Deal progressivism, but they didn't fundamentally alter the structural politics of the court, which, as mentioned, has been documented by Dichio's empirical study of the tendencies of the court.
If we look at what the realists wanted to change apart from the attempt at imposing more progressive social views, the critique of the naturalness of the market was very central. The legal realists responded in some sense to the rise of the bureaucratic state and the realization that there was no such thing as a self-governing market and its invisble hand. This myth was something that the American legal profession had supported since its birth and it was something that it directly enacted in its decisions. With the growth of the central state in the 20th-century it would become apparent that this kind of theory would put the judiciary at odds with the government. In this way we can also read legal realism as an attampt at re-positioning the court politically, so that it could exert its political influence and the same goals under new conditions.
The Realists were inspired by institutional economists, and an important realist thinker in these terms was the economist and lawyer Robert Lee Hale. Hale argued that the market was an organized form of coercion of the weak by the strong and that the market was an interlocking system of power relations not based on voluntariness or meeting of minds. This view of the market coppled with a progressive view of society meant that the realists wanted a new way of interacting with the market. American judges have always exercised great influence on economics and the realists wanted the same, but the realists did not want to do this for the sake of the business class itself. In this way, the realists did not attempt to take away juridical control of economics, they just wanted to do this to different ends by highlighting that the idea that the law should simply reflect the results of a neutral market was wrong. The inspiration taken from economic theory reflected a generaly positive attitude towards the social sciences, that the realists wanted to integrate into legal praxis.
The realists were also in many ways inspired by the american pragmatists. This is evident in their critique of objective causation, which was an important concept when deciding how A led to B in any given case:
"Only if it was possible to say objectively that A caused B's injury would courts be able to take money from A and give damages to B without being charged with redistribution. Without objective causation, a court might be free to choose among a variety of possible defendants in order to vindicate the plaintiff's claim" – Morton J. Horwitz, The Transformation of American Law, 1870-1960, The crises of legal orthodoxy
Objective causation was important in formalist theory, but the philosophical attack on that idea by the american pragmatists, which was introduced into legal thought by Justice Oliver Wendell Holmes and later taken up by the realists, meant that objective causal chains were not viable as an explanation. The formalists wanted to uphold this idea because otherwise the causality of events was left to the discretion of the judge, but the realists chose to affirm that this was always the case.
The pragmatist influence on legal thought is also important in the wider philosophical attack on formalist conceptualism:
"Along with his fellow members of the informal Metaphysical Club, Oliver Wendell Holmes, Jr., "had come very early to share their deep distrust and antagonism to the a priori categories of Kant and the conceptual dialectic of Hegel. A philosophy of Law, an analysis of legal history, which was built on Kantian or Hegelian foundations must be repudiated and cast aside." – Morton J. Horwitz, The Transformation of American Law, 1870-1960, The crises of legal orthodoxy
Justice Holmes was a kind of transitionary figure from formalism to realism. Holme's scepticism of metaphysical thinking was important in the development of realism and the aformentioned idea from Holmes that "general propositions do not decide concrete cases" was the most fundamental philosophical critique of formalism.
The New Deal
Despite the socially progressive current and the Realist critique of classical legal thought, the New Deal still faced huge problems. FDR's attempts at recovering the American economy during the Great Depression, known as the New Deal, were met with fierce resistance by the Supreme Court. Why this was the case is often portrayed as being the result of the diverging ideologies on the court and especially the strength of the so-called four horsemen who stood for a very conservative jurisprudence. Additionally, Chief justice Hughes, who often had the ability to tip the scales between the liberal wing and the conservative had formerly been a republican presidential candidate. What is more interesting though, is that most of the conservative leaning justices had built their legal carriers as lawyers in corporate cases. Many of them had big corporations as clients in their early career and many of their contacts were in those circles. However, these ideological differences do not explain the fact that the liberal judges also in some cases voted with the conservative bloc to strike down New Deal legislation.
The New Deal struggles coincided with the growing strength of legal realism, which was represented on the liberal wing of the court, while classical legal thought (formalism) was embodied by the conservative wing. The New Deal fundamentally challenged the supposedly Laissez-faire status quo that judges had supported for so long through its grant of sweeping powers to the executive and congress to intervene and regulate the economy. As has been demonstrated, the legal profession had been the chief regulator of the economy prior to this, and this is how we must understand the New Deal struggles. The judiciary had to reposition itself against a federal government that was hell-bent on intervening in the economy and the coinciding struggles between formalism and legal realism was the ideological embodiment of this structural repositioning. The judiciary also had to reposition itself against the growing bureacracy and expertise-groups in government.
Initially the court was somewhat supportive of the New Deal program, but in 1935, the court struck down the National Industrial Recovery Act (NIRA) of 1933, which would be the first of many statutes to be stricken down. NIRA allowed the president to regulate wages and prices in industry, while simultaneously creating the Public Works Administration (PWA) tasked with creating massive public projects bringing people out of unemployment. NIRA came before the court in A.L.A. Schecter Poultry Corp. V. United States. The court ruled that section 3 of NIRA was unconstitutional in its delegation of legislative power to the president and that this act was not a valid use of congressional power in relation to the Commerce Clause. The court layed out a major challenge to the ability of congress and the president to regulate commerce and economics, and it left the National Recovery Administration, which was set up to regulate and facilitate fair competition, in tatters.
The court was rendered highly unpopular because of its resistance to Roosevelt's plans to deal with the depression, who was consequently able to levy the charge against the court that they were only working on behalf of finance and disregarded the wellbeing of the working class. Nonetheless, the court continued striking down minor and major pieces of New Deal legislation, and the next big case was the Agricultural Adjustement Act (AAA). The AAA allowed for the Federal Government to pay farmers directly to not produce crops at a higher amount than that set by the Secretary of Agriculture, thus, the act presented a massive government encroachment on production. In United States v. Butler, the Supreme Court held that the act was an unconstitutional exercise of power. The court had squashed Roosevelt's major attempts at control of agriculture, industry and finance and there were serious considerations about what to do with the court.
Privately, the Roosevelt administration discussed the posibility of an constitutional amendment that would remove the ability of the supreme court to rule in economic affairs. These plans were never discussed publicly, but Roosevelt made sure to stir discontent with the court as much as he could. Roosevelt eventually came up with the idea that the number of justices should be expanded from 9 to 15, which woould give him amble opportunity to stack the court in his favour. Roosevelt also planned to implent an age limit to Supreme Court which would grant the executive the power to appoint a new justice to the court if a justice above the age of 75 was unwilling to step down. This last part was of course a slight against the court which was staffed by justices very close to this age. Roosevelt might have overstepped himself with the court-packing plan. This was seen by many as an overt political attack on the independece of the court, despite the fact that Roosevelt was right in sensing that the court was unpopular. This proposed legislation was struck down in congress and plummeted the popularity of Roosevelt.
Nonetheless, Roosevelt's threats impacted the court's behaviour significantly as his justification narrative relied upon the court acting as bastion of Laissez-faire dogmatism and so the court realized that they had to moderate themselves to protect their position. During the debacle about Roosevelt's court packing plan, the court skillfully took control of the situation and started upholding New Deal legislation, removing the impetus to curb the court from most New Deal supporters. This sudden liberal shift was also helped along by the resignation of the conservative justice Van Devanter, which gave Roosevelt the ability to appoint a liberal judge. Chief Justice Hughes who was often the person capable of shifting the court between liberal and conservative majorities now steered the court in a more liberal direction. Hughes was always very concerned with upholding the picture of a unanimous court, and his liberal turn was the way to do this. Nonetheless, everyone marveled at the fact that the court suddenly began upholding New Deal statutes as seen in West Coast Hotel Co. V. Parrish where the court upheld minimum wage laws imposed by the federal government or in NLRB v. Jones and Laughlin Steel Corp, where the court held that Congress has the right to regulate intrastate economic activities that have a collective impact on commerce.
Roosevelt might have lost a lot in his attempt to curb the court, but in the end he won because his threat against the court and his ability to leverage the popular narrative against the court was enough to force the courts to change direction, and in the end, his New Deal was somewhat successful. The New Deal was in many ways the culmination of the massive expansion of the bureaucratic state, and the attempt at battling this by the supreme court was a fundamentally loosing battle.
In the period between the civil war and the New Deal there was a massive expansion of the federal government and its administrative power. The court certainly did not fight this in all the areas that did not pertain to economics directly. As i showed at the outset via Dichio, we saw that civil rights and the new amendments played a huge role in this expansion and that the court legitimated this process. But we also saw that the court attempted to restrict federal power over economics. This should be seen as the central mistake of the court in this period. It took the court a long time to adapt to the new bureaucratic state that emerged, and legal realism, was an attempt at reorienting the courts structurally so that they could actually work under this new reality. The Realists tried to re-narrate the institutional position of the judiciary, and they attempted to formulate a new legal epistemology that allowed for more flexibility for the judiciary to reposition itself to the growth of bureaucracy and the social sciences.
The attempt at fighting this new expansion of the state was a loosing battle, which is evident in the passing of the Interstate Commerce Commision Act (1887), the Federal Reserve Act (1913), the 16th amendment and of course in the end, Roosevelt succeeded swinging the supreme court's decisions in his favour and implemented his New Deal program. The judiciary always has to figure out how it can bring contemporary developments inside its legal framework and discourse, this is what is seen in the dualism of formalism and realism. If the courts were to adapt to this, they would now have to figure out how they could regulate the regulaters so to speak. Rather than keep the other branches out of economics, the judiciary needed to bring an expanding administrative bureacracy under their legal framework and submit them to legal review. That is the problem legal thinkers set out to solve in the following period.
Post-New Deal and Contemporary Legal Thought, 1930-2000
This is the period were we enter into our own time and the very familiar disputes over judicial activism and restraint appear. Constitutional issues assume great importance, but it is also a period where the judiciary tries to fit itself into the new administrative bureaucracy. It might be obsolete to mention that this is the period of cases like Roe v. Wade and Brown v. Board, but these cases have had important implications for the issues concerning judicial activism and restraint. Of all the cases in this period, 62% of them expanded federal authority, with first amendment issues accounting for the largest amount of cases along with civil rights. First amendment cases expanded federal authority 61.2% of the time in this period and civil rights cases 72.6%. An interesting thing to note is also that economic activity again becomes a vehicle for federal expansion with 63.9% of all cases, while Due process cases are seemingly restrictive in nature at 53.8%.
These patterns should come as no surprise when we are aware of the aforementioned cases, and this period is characterized by a massive focus on constitutional issues relating to rights. In part because of WW2 and some of the issues relating to due process, but also the final battering of the South by the federal government. The return to economic activity is also explainable by the unleashing of American capital upon the world in the aftermath of WW2 and the Cold War conflict that ensued. This is a period where America asserted global dominance and economics was one of the most important avenues for this.
We will first look at the way that the judiciary envisioned its own place in the bureaucratic state.
Administration and Judicial Review
"From its earliest embodiment in the Interstate Commerce Commision (1887), federal administrative regulation had met regular and persistent judicial efforts to confine its scope and limit its powers. The attack on administrative "autocracy" was often simply a stand-in for opposition to or fear of governmental regulation. The form was only incidental. But for others, the rise of the administrative state raised the most basic questions about the meaning and continuing viability of the "rule of law" in situations where unelected officials exercised enormous and unprecedented power to affect the lives and property of citizens" – Morton J. Horwitz, The Transformation of American Law, 1870-1960, The crises of legal orthodoxy
The administrative bureaucracy challenged the power of judges and the increasing complexity of economics also meant that judges began to be seen as being unfit to carry out this job as administration relied heavily on expert groups. The judiciary had to figure out how they could continue their influence and that entailed rethinking their own role in the administrative bureaucracy. As Horwitz points out here, there were legitimate concerns about the power of bureaucrats who were not constrained by democratic concerns and these concerns became the avenue for judicial control of the administrative process.
First, we must look at the theory underlying the administrative process at the time, the delegation theory of administrative power:
"When the first institutionalization of the regulatory state, the Interstate Commerce Commission, was established in 1887, separation of powers theory created the framework for conceptualizing administrative action. Administrative officials were classified as part of the executive, whose function was to carry out the commands of the legislature. Under this view, the legislature would decide all questions of policy and establish clear standards and goals. The essential task of bureaucratic officials was to find the most efficient means to implement clear, legislatively elaborated ends. The court's role was to police this relationship by limiting administrative authority to clear delegations of power from the legislature. The delegation theory reflected the dominance of the German bureaucratic ideal in the late nineteenth century and its twin assumption that (1) general rules can effectively constrain bureaucratic action and (2) the relationship between bureaucratic means and legislatively established ends was essentially a technical or scientific question." – Morton J. Horwitz, The Transformation of American Law, 1870-1960, The crises of legal orthodoxy
As we saw in the realist critique, general propositions could not decide concrete cases, and this model could be easily applied to the administrative process. Formal rules designed for a different political context struggled to constrain administrative power. Thus, the delegation theory became a victim of legal realism. This set up a discussion between the "scientific" tradition and the "legalist". The legalists where initially supporters of the delegation theory, but the clear evidence that broad rules could not effectively constrain administrative power cast their fundamental assumptions into doubt. In contrast, the "scientific" tradition supported the idea of an administrative state staffed with "scientifically" trained bureaucrats, who could carry out the will of the executive in a "neutral "way. Nonetheless, such a theory was anathema for the legal profession and the legalists still won out in the end with the passage of the Administrative Procedure Act of 1946. The APA granted federal courts review of all agency actions in the federal government, it governs the way administrators and the federal government can establish regulations, and this still stands to this day. This was a huge victory for the judiciary, for it placed control of the administrative process in their hands.
The debates over expertise groups, bureaucrats trained in various fields, and legal procedure assumes great importance because it touches directly on the structural position of the judiciary, and various groupings within the state. Hence, all debates over expertise and legal procedure must be read in this way.
The issue of expertise groups and legal procedure can also be seen in issues concerning actual court cases in this period. The growth of the social sciences and psychology in the post-New Deal period meant that expert groups started playing an important role in criminal cases. Typically this could be seen in juvenile crime cases, which required "experts such as social workers and criminologists to advise judges on the appropriate individual cure". If one considers a case where the psychological state of the offender is important the judge will obviously have to rely on expert testimony. This leaves a lot of power in the hands of experts, and even though it is intuitively sound that experts should determine this, it challenges the legal process and one cannot ignore that experts are not necessarily neutral, therefore the case In re Gault (1967):
"Dominant for half a century, this vision was abruptly rejected by the U.S. Supreme Court in In re Gault (1967), which insisted that juveniles be accorded the same procedural protections as adults in criminal proceedings. The decision reflected almost a generation of growing disillusionment with expertise, particularly with the professional claims of social scientists. Without the legitimacy of science, the state's apparatus was no longer experienced as benevolent but once more as potentially oppressive. As claims of professionalism to scientific legitimacy grew weaker, as their ability to provide objective solutions was increasingly called into question, courts reverted to traditional legalist protections against arbitrariness. As the supreme court declared: […] Procedure is to law what scientific method is to science" – Morton J. Horwitz, The Transformation of American Law, 1870-1960, The crises of legal orthodoxy
This rejection of expertise groups is very emblematic of the American judiciary. It typifies the persistent attempt at portraying law as something scientific, which can be neutrally applied. Of course a judge is not trained to evalute the sanity of someone or evalute the needs of some juvenile criminal, but all expertise must be subsumed under the legal process itself. Law has to be primary, otherwise the rule of law itself is challenged, or read more profanely, the power of the judge is challenged. If the judge can't subsume everything under his review, he becomes superfluous.
Activism, Procedure and Interpretation
As seen in the debates about the relationship between the rule of law, administration and expert groups fitting into legal procedure, the question of the legal process at large assumes the center of importance in the cold-war period. In a broad sense, the issue of judicial activism and restraint is part of this focus on the legal process. Much of the legal thought in this period is the attempt to understand how to conceptualize the Brown v. Board of Education (1954) case, which was a prime example of judicial activism. This activism by the Warren supreme court in this period is even clearer when we realize that the Warren court had the least amount of citations and reference to other cases in the entire history of the court. This activist use of the law was bound to spur some debate, and in a sense, this discussion about whether or not judges should show restraint in their application of the law or use the law actively is still ongoing today, where the debate has transposed into the conservative idea of an originalist interpretation (formalism) and the liberal idea of the living constitution (realism).
Much has been written on why the court took on such an activist role in this period and we hear the usual stuff about the fight against racism and injustice. This shouldn't be of primary interest because structurally far more interesting things could be said about why this took place. Chris Bond's Nemesis (2019, Imperium Press) has already documented the degree to which the civil rights movement was astroturfed into existence and that the attempt at fighting racial inequality had "a distinctly imperial flavour". Bond argues that the fight for racial justice was a mere pretext for centralizing political authority. Brown v. Board extended federal authority over education, and in this way, the court engaged in a pincer-movement leveraging disenfranchised blacks against the states. This is how we must understand the massive focus on rights-issues in this period. The federal goverment was usurping control over areas previously administered by the states, and rights-issues became the primary vehicle for this end.
Due to the challenges faced by liberal democracies during the mid-20th Century rise of fascism and communism, many (formalist) legal thinkers began to frame democracy as constituting an objective value-free process, threatened by irrational "ideological values". This is why Brown v. Board was so controversial, because it ruined the idea of a value-free and scientific legal process through its overt activism. Nonetheless, the American poilitical elite, and most people today, still think that this decision was valid because it was "just", regardless of whether or not they find it to be objectively lawful.
Naturally, the issue of judicial activism hinges on questions of interpretation. Activist judges will try to make their approach as non-explicit as possible, they will always attempt to present their verdicts as being legally sound and objective. This is why interpretative issues assume such importance in our period, because interpretation conditions the entire legal system.Contemporary legal thought is therefore dominated by theories of interpretation rather than the question of law in itself.
Part 2. Legal Theory and Its Purification; or The Dualism of American Law in Formalism and Realism
The central aspiration of the american legal profession has always been a neutral, objective, scientific jurisprudence. To achieve this, legal reasoning must be purified with formalization. This aspiration arises from the concept of the rule of law, which necessitates a law that is not of men, but of law in itself. This drive must of course be understood through the prism of the political interests of the legal profession. Obviously, the very notion of "scientific" jurisprudence raises the legal process to an exalted position, from which the judge and the jurist can exercise their epistemic centrality. Even though most of American legal history can be characterized as a process of decontextualizing law, this has been periodically punctured by legal realism, which shows us the duality of american law. The drive towards a formalized jurisprudence (championed by conservatives) against an instrumentalized law that can be molded to rationalize the judiciary's pragmatic and moral agendas.
The puritan colonists brought with them a conception of natural law which was somewhat distinct from continental scholastic natural law, due to the primacy of revelation in the protestant tradition. Nevertheless, the Imago Dei still lent credence to the human ability to reason despite our fallen nature. Law for the puritans was closely tied to theology and philosophy, and so there was no pure notion of specifically legal reasoning. This led many contemporary scholars to the impression that legal education didn't exist in the puritan colonies, but a clear method of legal practice was embedded in their education in the humanties. After the revolution jurisprudence came to differentiate itself in the United States, but certain seeds were sown by the puritans prior to this that were important for the development of modern natural law.
American law has never truly shook off the morally absolutist nature of the puritan tradition. Law was for the puritans grounded in Divine commandments, and so, law took on truths which were eternal. This made the question of the role of history on law difficult, because obviously specific laws are historically contingent, but how is that possible when law is an eternal truth? This problem has deeply influenced the constant formalist attempt at purifying law of historicity. The protestantism of the puritans also embedded in American law the notion that the law could in some sense stand on its own, much like the authority of the scriptures themselves, and this of course had huge influence on the development of the idea of "the rule of law".
As the colonies entered the 18th-century the natural law tradition took on a different character. The enlightenment sentiment and the influence of people like John Locke secularized the natural law tradition, and a more positive attitude towards reason emerged. The universal concepts of natural law were no longer derived from a primarily theological foundation but from reason, with empirical methodology deployed not just to determine the facts of the case but to discover the law itself. The puritans privileged revealed law, and this was progressively naturalized by the revolutionary generation. Nature was seen as a supplement to revelation for the puritans, whereas nature became the basis of law in itself for the revolutionaries.
The reception of William Blackstone in America also ended up exerting great influence on the American tradition. The English jurist's writings were aimed at organizing the common law and precedent, and he integrated liberal ideals with the natural law tradition. Blackstone worked with the idea that God has given us laws that we can discover through first principles and reflection upon the nature of humanity. Blackstone was also influenced by Locke's thought, he derived rights from the state of nature and saw the pursuit of happiness as a central first principle. Furthermore, Blackstone stipulated the idea of an indivisble and singular sovereignty, which became popular sovereignty in the American tradition.
Blackstone would have huge influence on the American legal tradition, especially Joseph Story, who represented one of the first attempts at dealing with the question of history in jurisprudence. Story understood that history had to play a part in the development of laws, acknowledging that history played a role in law insofar as laws were the result of the moral reflections of a people through changing circumstances. However, Story maintained that historical contigency could not be allowed to question the eternal truths of the law. These 'eternal truths' preexisted any given law, so law was still something to be discovered rather than created. For Story then, law was a historical process of discovering already existing legal truths, which ultimately meant that law could not be historically founded, it only played itself out in history.
Contemporary with Joseph Story was Jeremy Bentham's attempt at reckoning with the challenge of historicism, and he tried vehemently to show that "a vast gulf seperated the analytical from the historical method". Bentham attacked the use of history in law as a politicization of the law and as such, he didn't truly respond to historicist ideas in themselves. Bentham attacked the use of history to justify the political status quo, a problem thought could only be solved with an analytical framework that dismissed these concerns entirely in the pursuit of 'discovery'. The analytical approach to jurisprudence he advocated would lay the groundwork for the rise of legal formalism by at the end of the 19th-century.
The distinction between these analytical and historicist traditions tended to blur through time, as even though Story might have thought that he successfully integrated history into his conception of law, he effectively made law itself independent of history because of his assertion of the pre-existence of legal truth. Formalism was a move to an even more pure idea of the law. Influenced by positivism, legal thinkers in the post-civil war era gave their all to create an objective scientific legal system that they could claim to have overcome political contingency in law all together. Throughout the 19th Century the common law had moved towards increasing systematization and the assertion of judicial authority. Formalism was an entrenchment of this result, and this entrenchment had to come from an even more systematized approach to law.
There was a move towards general categories of law that subsumed subjects under general headings, and the introduction of case-studies by Langdell, was part of this system. Despite his intentions, Story seems to have ended up isolating history from law, and the natural move towards a greater veneer of neutrality came through the rejection of politics as a constitutive element of law. Langdell's case method played an important role in this process. Any science naturally needs an object of study, and Langdell believed that cases were the objects of the legal science. The written opinions of judges was the object, and alongside these cases was the induction of legal principles and doctrines. Langdell wished to entrench legal custom and the common law precedent so that the study of it could become a study of the law in itself. As such, judicial opinions are raised to the status of an scientific object.
Part of this new method of legal studies was also the slow rejection of extra-legal education. Prior to the case-method, legal education had consisted of a more broad philosophical education, but Langdell's case-method helped in making jurisprudence independent of other disciplines. This entire process is what undergirded the separation between law and politics. The formalist vision was one in which law was something that could be neutrally applied to the governance of society regardless of its political situation. This movement towards a more decontextualized law was ruptured by legal realism, but the idea that the law has a neutral application is still strong, and can be seen in the move towards the idea of a value-free legal process in the post-war era.
This puncturing of the formalist paradigm and the drive towards a neutral and scientific jurisprudence is nonetheless important in that it makes evident an inherent dualism of American law. I have mentioned how american legal history oscillates between formalism and realism. Formalism allows for the epistemic entrenchment of the status quo under the guise of "neutral" rationality, creating the illusion of depoliticized law. Realism breaks down paradigms in response to ideological shifts of the political order. Realism then is the way in which the judiciary adapts and repositions itself structurally to maintain its position under political pressure.
The history of American legal theory when read through the prism of the structural interests of the judiciary demonstrates its function. It deploys realism to hold its centrality during politically transformative periods, and then deploys formalism to consolidate these transformations as the new status quo, raising barriers to "political" intervention in its formal structure. This consolidation holds a new legal paradigm in place, giving the impression that it was always true and not a product of history and politics (this is the true role of the "conservative" in American politics).
Contemporary discussions about the American legal process fit into this duality of American law; its formal conservatism and its real progressivism. We see this in debates on judicial restraint vs. judicial activism, in particularly in constitutional law between the living constitution and originalist interpretations. The battles between the executive and the supreme court reveal that the judiciary is dependent upon its ability to portray itself as neutral. Legal power is the power of review. The success of Marshall against Jefferson lies in the fact that his curbing of executive power was largely hidden under the guise of objectivity and legal review. The failure of Justice Taney against Lincoln, and the Hughes court against Roosevelt showed that the court is powerless in the face of an executive empowered to force through an ideological realignment of the status quo. In this way, the court is a priestly institution that can only pronounce passive judgment upon the already established.
Morton J. Horwitz, The Transformation of American Law, 1780-1860
Morton J. Horwitz, The Transformation of American Law, 1870-1960, The Crisis of Legal Orthodoxy
Morton J. Horwitz, Why is Anglo-American Jurisprudence Unhistorical?
Michael A. Forsyth, Common Law and Natural Law in America, From the Puritans to the Legal Realists.
Michael A. Dichio, The US Supreme Court and the Centralization of Federal Authority
Lucas A. Powe, Jr., The Supreme Court And The American Elite, 1789-2008
James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, And The Epic Struggle To Create A United States
James F. Simon, FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal
Brian Mcginty, Lincoln and The Court
C.A. Bond, Nemesis: The Jouvenelian vs. The Liberal Model Of Human Orders