The American State from the Civil War to the New Deal The Twilight of Constitutionalism and the Triumph of Progressivism
Book contents
- Frontmatter
- Contents
- Abbreviations Used in the Footnotes
- Acknowledgments
- Introduction
- Part I The Old Regime
- Part II Early Progressivism
- 4 The New Jurisprudence
- 5 The Due Process Dialectic
- 6 Toward a Federal Police Power
- 7 Rooseveltian Progressivism
- 8 The Lochner Incident
- 9 Court and Constitution in Crisis
- 10 Taft and the Republican Crackup
- Part III Late Progressivism
- Part IV The New Deal
- Appendix A
- Appendix B
- Primary Sources
- Index
- References
5 - The Due Process Dialectic
Published online by Cambridge University Press: 05 May 2013
Book contents
- Frontmatter
- Contents
- Abbreviations Used in the Footnotes
- Acknowledgments
- Introduction
- Part I The Old Regime
- Part II Early Progressivism
- 4 The New Jurisprudence
- 5 The Due Process Dialectic
- 6 Toward a Federal Police Power
- 7 Rooseveltian Progressivism
- 8 The Lochner Incident
- 9 Court and Constitution in Crisis
- 10 Taft and the Republican Crackup
- Part III Late Progressivism
- Part IV The New Deal
- Appendix A
- Appendix B
- Primary Sources
- Index
- References
Summary
NATURAL RIGHTS AND THE ANTEBELLUM COURT
Despite the decline of natural rights ideas among nineteenth-century intellectuals, the American courts accomplished a notable revival of natural rights jurisprudence. Judges frequently employed natural law principles in the early years of the republic. In 1793, for example, Justice James Wilson held that a South Carolina citizen could sue the state of Georgia, not simply because Article III of the Constitution gave the federal courts jurisdiction in “controversies between a state and citizens of another state,” but because of the “principles of general jurisprudence” upon which the Constitution rested. In the same term, the Court noted that “the right of trial by jury is a fundamental law, made sacred by the Constitution” and that “the right of acquiring and possessing property, and having it protected, is one of the natural, inherent rights of man.” Justice Samuel Chase gave a fuller statement of natural law theory in 1798. “The purposes for which men enter into society will determine the nature and terms of the social compact.” Any constitution based upon consent and limited to the public good must “overrule an apparent and flagrant abuse of legislative power. … An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.” Chase gave as examples “a law that makes a man a judge in his own cause, or a law that takes property from A and gives it to B.” “It is against all reason and justice, for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it.”
- Type
- Chapter
- Information
- The American State from the Civil War to the New DealThe Twilight of Constitutionalism and the Triumph of Progressivism, pp. 59 - 69Publisher: Cambridge University PressPrint publication year: 2013
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