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
- 1 The Post-War Constitution
- 2 The Judiciary and Private Rights
- 3 The Crisis of the 1890s
- Part II Early Progressivism
- Part III Late Progressivism
- Part IV The New Deal
- Appendix A
- Appendix B
- Primary Sources
- Index
- References
2 - The Judiciary and Private Rights
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
- 1 The Post-War Constitution
- 2 The Judiciary and Private Rights
- 3 The Crisis of the 1890s
- Part II Early Progressivism
- Part III Late Progressivism
- Part IV The New Deal
- Appendix A
- Appendix B
- Primary Sources
- Index
- References
Summary
DISTRIBUTION AND SUBSIDY
Republican policy-making abated after 1875, when the party lost its fourteen-year control of Congress and the presidency. For the next two decades, with only brief exceptions (1889–91 for the Republicans and 1893–95 for the Democrats), the parties shared federal political power. This enhanced the power of the federal judiciary, which was dominated by Republicans. The only Democratic president in those years, Grover Cleveland, tended to appoint judges with an orientation similar to the Republicans. This had led historians in the populist–progressive–New Deal tradition to claim that the judicial branch and legal system promoted the class interests of big business. Republican policy on the tariff, finance, and railroads contributed the more visible, public-law part of their program of class rule, they argued. Less noticed was the Republican judiciary’s use of such private-law doctrines as torts and contracts to buttress this system.
The federal judiciary’s private-law doctrine occasionally provoked political contention in the Gilded Age and progressive era, but only became a subject for legal historians later in the twentieth century. It flowed from the turn of legal historians from “internal” to “external” analysis of the law’s development. The common-law tradition had explained the development of law almost exclusively from legal sources – precedent cases above all; also statutes and official commentary. In the middle of the twentieth century, following the insights of sociological jurisprudence, legal realism, pragmatism, and other progressive legal theories, J. Willard Hurst began to interpret legal history in light of external political, social, and economic factors. Hurst explained that – far from adhering to laissez-faire – nineteenth-century Americans used the law and judges changed legal principles in order to facilitate economic development.
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- The American State from the Civil War to the New DealThe Twilight of Constitutionalism and the Triumph of Progressivism, pp. 23 - 31Publisher: Cambridge University PressPrint publication year: 2013
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