Setting the Stage: New Haven 1980

In my mind's eye, I see the scene as if it happened yesterday. It is May 1980, and I am wearing a red dress as I sit for my doctoral orals at Yale. The opening question is about Holmes's 1905 dissent in Lochner v. New York: What did he say, and what did he mean? The first part is a no-brainer: “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.”Footnote ¹

The second is trickier. As I want to recall the moment, I insist that Holmes was not complaining that his colleagues invariably used the “liberty of contract” and “substantive due process” doctrines to strike down social welfare legislation like the statute setting maximum hours for New York bakers at issue in Lochner. After all, Holmes went on to mention, the Court had recently upheld a Massachusetts mandatory vaccination law.Footnote ² Even the Court's “progressive” critics agreed with its champion, Charles Warren,Footnote ³ that the Fuller Court sustained many more acts of social welfare legislation against challenges to their constitutionality than it had struck down between 1888 and 1910.Footnote ⁴ That was one reason why the administrative and regulatory state could emerge in all its “glory” during the early twentieth century. Even so, Holmes had rightfully assailed Justice Rufus Peckham's majority opinion in Lochner. As Holmes saw it, though Peckham explicitly denied that the justices he spoke for were “substituting the judgment of the court for that of the legislature,”Footnote ⁵ the majority was doing just that. Holmes had rightly pressed his judicial colleagues to abandon activism for restraint, I maintained.

What followed, if I recall rightly, was my rant against Peckham and a number of Fuller Court justices as pro-business, anti-redistributive, anti-labor, and antidemocratic. I argued that they “formalistically” insisted on divorcing law from the conditions of modern industrial life and pretended to an apolitical neutrality. I contended that their opinions reflected interests, those of the wealthy, and ideas, those of legal formalism, with results that favored elites, or the classes over the masses. If memory serves, I accused the Court of not just frustrating the will of state legislatures but of Congress as well. I channeled my inner Arnold Paul, whose 1960 book, Conservative Crisis and the Rule of Law,Footnote ⁶ heaped scorn on the 1895 “Big Three” of Knight,Footnote ⁷ Pollock,Footnote ⁸ and Debs.Footnote ⁹ I condemned the Fuller Court because, like its predecessor Waite Court, it did not embrace the Fourteenth Amendment as a shield for African Americans, and further, transformed it into one for property.Footnote ¹⁰ I may also have declared I could understand why Paul's contemporary, Alan Westin, celebrated the Democrats and the Populists for making the Supreme Court an election issue in 1896.Footnote ¹¹

In retrospect, if that indeed was my answer, I don't think it was bad for 1980. True, beginning in the 1950s, the “consensus” account stressing Americans’ shared love of Locke had replaced the progressive story concentrating on class conflict, but it had not made much headway with constitutional historians of the late nineteenth and early twentieth centuries. Yes, John Semonche's 1978 book, which focused on the results of Supreme Court decisions between 1890 and 1920, rather than the justices’ reasoning, concluded that the Court performed pragmatically and placed surprisingly few roadblocks “in the path of popular will.”Footnote ¹² Semonche's contemporaries, Loren BethFootnote ¹³ and Mary Porter,Footnote ¹⁴ made that point too. But as an aspiring historian, recovering lawyer, and a political and legal liberal,Footnote ¹⁵ I had contracted a severe case of what David Bernstein was to call “Lochner phobia.”Footnote ¹⁶ I saw Lochner as the classic act of judicial legislation that gave the liberal activism of the Warren Court a bad name. On my orals reading list, the progressive interpretations condemning the Fuller CourtFootnote ¹⁷ and Lochner Footnote ¹⁸ still carried the day.

True, too, there was a growing interest in ideology among American historians that increased concern with the way the justices understood and explained opinions like Lochner. Eric Foner would modestly attribute the success of his 1970 landmark, Free Soil, Free Labor, Free Men, partially to the lucky accident of its appearance “at the very moment when American historians were rediscovering ideology” and dropping their “fairly sterile” argument over whether conflict or consensus pervaded the nation's past.Footnote ¹⁹ What united the Republicans before 1861 and explained their commitment to stamping out slavery's expansion, Foner explained, was enthusiasm for “a ‘free labor ideology,’ grounded in the precepts that free labor was economically and socially superior to slave labor, and that the distinctive quality of Northern society was the opportunity it offered wage-earners to rise to property-owning independence.”Footnote ²⁰

The focus on ideology possessed rich implications for legal historians. In a 1980 article excerpted from his famous, still unpublished manuscript, Duncan Kennedy suggested how an ideological approach might illuminate the justices’ reasoning in Lochner. He concentrated on the similarity between the Peckham majority's insistence of limits on the police power and Harlan's dissent maintaining that the police power provided sufficient reason to regulate the then-hazardous trade of commercial baking. That was evidence, Kennedy wrote, of the justices’ shared “legal consciousness” and devotion to the bright-line boundaries and rigid separation between public and private that lay at the core of what Kennedy was now calling “classical legal thought.”Footnote ²¹ Kennedy turned the focus away from the disagreement between Peckham and Holmes toward Peckham and Harlan's common ground. As he said later, his work began “getting rid of the concept of legal ‘formalism’ that had dominated discussions of late nineteenth century thought” since 1908, when Roscoe Pound protested against the Court's “mechanical jurisprudence” that he and other “progressives” portrayed as hopelessly reactionary and aseptic.Footnote ²²

Kennedy's insights intrigued me, but why couldn't “legal formalism,” “the view that deductive inference from apolitical, abstract legal principles, by itself, yields decisions in legal dispute,”Footnote ²³ constitute an ideology or a shared legal consciousness? While no late nineteenth and early twentieth century justice, judge, treatise-writer or lawyer back in the day would have called himself a “formalist,”Footnote ²⁴ historians of legal thought routinely rated it “formalistic” in 1980 and had not yet begun speaking of classical legal thought. Unlike the pragmatic, fact-oriented and flexible judicial reasoning of the later twentieth century, formalists emphasized “the remorseless application of general principles, conceptions or rules” to resolve disputes.Footnote ²⁵ Moreover, Charles Goetsch observed in 1980, most scholars believed formalists “tilted predominantly (not uniformly) in favor of the legal elite and the privileged classes they represented.”Footnote ²⁶ While William Nelson rooted formalism in antislavery jurisprudence,Footnote ²⁷ Morton Horwitz saw its rise after 1850 as an attempt by the privileged “to ‘freeze’ legal doctrine and to conceive of law not as a malleable instrument of their own desires and interests but as a fixed and inexorable system of logically deducible rules.”Footnote ²⁸

So I felt quite comfortable in the way I melded interests and ideas in attacking Peckham's majority opinion in Lochner for the motivation I attributed to its author and its results and reasoning. In any event, my orals answer there and elsewhere seemed to engage my examiners—though I recall being thrown by a query about the Dillingham Commission. Two hours later, after my committee told me I had done well, and a kind History Department administrator had made me sit for ten minutes because I seemed stunned by my success, I left the Hall of Graduate Studies and got into my car. I promptly drove into a large truck.Footnote ²⁹

If progressive legal historiography could drive, it would have hit a truck piloted by revisionist scholars over the next decade too. But I wasn't paying attention to that as I scrambled to win promotions by writing about legal education and Abe Fortas.Footnote ³⁰ Then, in the early1990s, I happened on Owen Fiss's magisterial Holmes Devise volume. It presented the Fuller Court as “devoted to liberty” and portrayed its author as tilting “uneasily against a scholarly tradition” entrenched in criticism of the Court by contemporaries during the 1896 and 1912 presidential elections. According to Fiss, that scholarly tradition was kept alive by Arnold Paul, Alan Westin and “others working within the progressive tradition…that treats all talk of liberty by the Fuller Court as mere camouflage or subterfuge and insists that Fuller and his colleagues were simply using their power to further class interests.”Footnote ³¹ Intrigued, I wondered about the book's reception. Imagine my surprise when I read Stephen Siegel's review celebrating Fiss's “marvelous” and “masterful” doctrinal dexterity but contending that there was nothing new in his thesis about the importance of liberty to the justices! “The traditional view of the Fuller Court already has been overthrown, and the Fuller Court already has a new history” that rendered Fiss's argument “more orthodox than original,” Siegel maintained.Footnote ³²

What had happened to progressive legal historiography since my orals? In this essay, I argue that it has not been and should not be vanquished. I maintain that we should applaud Siegel, Fiss and other “revisionists.” Yet we should also admire the progressives’ contributions, acknowledge that some scholars today take a progressive approach toward the Constitution and late nineteenth and early twentieth century constitutional interpretation, and appreciate both progressive and revisionist work.

First, I summarize the revisionists’ achievements. By focusing on ideology and stressing the widespread mistrust of class legislation, they gave legal doctrine coherence and made a compelling case against treating it as a rationalization of class interests. Second, and in an attempt to improve the quality of the debate, I suggest that “revisionist” and “progressive” legal historians undermine their cases by using words like “progressive,” “Gilded Age,” and “Jacksonian,” and that “revisionist” is not an enlightening term, either. Third, I contend that in writing about progressive scholars’ attitude toward the Constitution and constitutional interpretation, revisionists have made straw men out of the progressives, whose diversity and contributions they ignore. At considerable risk, progressives called attention to the relevance of political calculation, economic self-interest, and biography to the Constitution and constitutional interpretation. I also maintain that the revisionists have not yet won the day and that holdouts exist in the legal academy and history departments. Finally, I claim that the scholarship of “progressives” and “revisionists”—particularly if we rechristen both—still has something to teach us, and that it is time to abandon the dialectic of thesis and antithesis and concentrate on synthesis.

A Brief History of Revisionist Historiography

In contrast to the traditional progressive version of constitutional history that I presented at my orals, a talented group of late twentieth century historians demonstrated that the justices, judges, treatise-writers and lawyers the progressives sometimes vilified had not behaved as the willing servants of the rich. The revisionists’ early work often focused on one or a few individuals and reflected a careful attempt to correct the historical record. For example, one of the first, Alan Jones, rehabilitated Thomas Cooley, a bête noire of those, such as Clyde Jacobs and Benjamin Twiss, in the 1940s and 1950s. Jacobs and Twiss credited Cooley with developing and popularizing the concept of substantive due process, spreading the notion of its violation by “class legislation” that benefited or burdened a special class or classes of people, and supplying industrial oligarchs with the laissez-faire ideology they sought.Footnote ³³ Jones recognized that lawyers and judges sometimes cited Cooley to justify promoting property rights over the public interest. Yet he identified a democratic instinct at work in Cooley's treatise, career, fear of class legislation, and anxiety about legislatures as potential capitalist tools.Footnote ³⁴ He rooted it in Cooley's eagerness “to conserve the equal rights traditions of his Jacksonian past.”Footnote ³⁵

Or take Stephen Field. Andrew Jackson played no role whatsoever in Carl Swisher's 1930 biography. Justice Field most likely remained with the Democrats all his life because his opinions after the Civil War stamped him as “the guardian of their liberties in the Supreme Court” and gave him a shot at winning their Presidential nomination.Footnote ³⁶ Swisher treated Field affectionately, particularly when compared to another “progressive,” Wallace Mendelson, who, twenty years later, would blame the justice for blocking legislatures from checking “the worst abuses of the Gilded Age”; emasculating the Interstate Commerce Commission; unleashing railroads to bilk farmers; smashing the labor movement; and saving trusts from the threat of prosecution, while guaranteeing that “their ill-gotten income was immune from taxation.”Footnote ³⁷ But Swisher's Field did not worship “happiness,” defined as economic liberty, or “the right to ‘regulate one's own pursuits of industry and improvement,’” as some conservatives who today make him their hero claim.Footnote ³⁸ Swisher's Field bowed to power. He had a bias toward railroads titans and the rich, whom he and his wife ostentatiously befriended;Footnote ³⁹ opposed the federal income tax as nearly communistic;Footnote ⁴⁰ and played an outsized role in convincing a number of his colleagues that the Supreme Court, not Congress, should control “the financial system of the country.”Footnote ⁴¹ Field, Swisher said, helped ensure that his Court had the “appearance,” at least, “of siding with great moneyed interests and against the people.”Footnote ⁴²

Beginning in the 1970s, revisionist Charles McCurdy portrayed a very different Field, one who was no “mere handmaiden for ‘business needs.’”Footnote ⁴³ The justice's “government-business jurisprudence was derived from the Jacksonian, radical, antislavery precept” that the Declaration of Independence provided Americans with natural rights to enjoy their property and other liberties with a minimum of legislative interference, McCurdy maintained. That led Field rigidly to segregate the small public sphere, where regulation was permissible, from the larger private one, where it was not.Footnote ⁴⁴ Reformers justified wages and hours legislation by pointing to the unequal bargaining power between labor and capital. Naturally, Field and others who came of age in antebellum America “steeped in the ‘free labor’ ideology instinctively resisted the idea of essentially unfree labor contracts.”Footnote ⁴⁵

And despite his reputation as a reactionary, Field sought a Court that would enable and encourage state officials to continue regulating giant industrial corporations.Footnote ⁴⁶ “In 1893, at the very height of what one scholar has called a ‘conservative crisis’ in the federal judicial establishment, Field informed a political adviser of President Cleveland that a recently vacated seat on the Court ought to be filled by a man ‘with a large and liberal mind, not one who…would be made easily subservient to that overwhelming corporate power which is laying its grasp upon the great interests of the country,’” McCurdy reported.Footnote ⁴⁷ Nomination of a justice with corporate ties, Field warned, would represent “a triumph for the side I have most to fear for the successful maintenance of sound constitutional views” and would prove a disaster.Footnote ⁴⁸ “The ‘sound constitutional views’ to which Field and his colleagues clung so tenaciously,” McCurdy concluded, “stemmed not only from the Jacksonian commitment to dual federalism but also from Jacksonian remedies for overweening corporate power.”Footnote ⁴⁹ The Court had limited the scope of the Sherman Act in Knight, McCurdy showed, so that state attorneys general could do their jobs.Footnote ⁵⁰

In the 1980s, Ronald Reagan's Presidency and the decline of the labor movement provided another impetus for revisionism, and even Morton Horwitz joined in the attack on “progressive legal historiography.” The first volume of Horwitz's 1977 classic, The Transformation of American Law, 1780–1860, possessed a progressive tone. It portrayed legal activity in antebellum America, “[v]iewed retrospectively,”Footnote ⁵¹ as a “Machiavellian”Footnote ⁵² conspiracy between merchant and entrepreneurial groups and the legal profession “to serve the interests of the wealthy and powerful”Footnote ⁵³ by engineering a “legal redistribution of wealth” from the weak to the rich.Footnote ⁵⁴ In 1984, Horwitz offered a preview of how the second volume of Transformation taking the story up to 1960,Footnote ⁵⁵ would diverge from the first. At a time when critical legal studies was flourishing on the left and distinguishing itself from politically liberal law and society work that made law the mirror of society, Horwitz joined with, or, perhaps, capitulated to,Footnote ⁵⁶ his colleague, Duncan Kennedy, in focusing on ideology, or legal consciousness.

Horwitz took aim at one of the most notorious progressive figures. In An Economic Interpretation of the Constitution of the United States, Charles Beard made the case in 1913 that at the Constitutional Convention, the framers secured their property and that of similarly situated contemporaries and made it more valuable.Footnote ⁵⁷ As Horwitz put it, “In an era of robber barons and brutal corporate buccaneers, of urban corruption and grinding poverty, of struggles between labor and capital that reminded observers of European class struggles, Beard asserted for the first time that the Constitution was conceived in earthly sin, the sin of self-interest and bitter group struggle.”Footnote ⁵⁸

While the Horwitz of Transformation I might have admired that, he now maintained that the “Progressive paradigm” Beard built had thankfully disappeared from legal historiography everywhere except in the “moribund” work about the late nineteenth and early twentieth centuries.Footnote ⁵⁹ There, Horwitz lamented, most scholars continued to ask, along with the progressives, why the Supreme Court had gone “‘off the tracks’ through use of substantive due process during the Lochner era.”Footnote ⁶⁰ That inquiry led them to insist that during the late nineteenth and early twentieth centuries, the Court threw out the “neutral constitutional principles”Footnote ⁶¹ playbook used by its predecessors, toadied to big business, and only returned to reason after the Court Packing crisis of 1937. Too many who wrote about the Court, Horwitz insisted in 1984, swallowed “the New Deal's self-congratulatory view of itself as the culmination and fulfillment of the Progressive program” and ignored the opportunity that regulation presented for “capture.”Footnote ⁶² Their gullibility doomed scholars to worrying about whether every outbreak of judicial activism since 1937 represented “a return to the Lochner era.”Footnote ⁶³

Drawing on the work of Jones and McCurdy, which he singled out for praise,Footnote ⁶⁴ Horwitz characterized Field, Cooley, and other “‘old’ conservatives”Footnote ⁶⁵ as “Jacksonians”Footnote ⁶⁶ who were “anti-corporate and anti-big business.”Footnote ⁶⁷ They held fast to “the anti-redistributive principle of equal and uniform taxation,”Footnote ⁶⁸ and harnessed law to “an older vision of individualism, decentralization, and free-market laissez-faire.”Footnote ⁶⁹ The old conservatives suffered attack from contemporaries on all sides during the late nineteenth and early twentieth centuries, Horwitz said. To their right, “‘new’ conservatives” who sought “to legitimate corporate America” stressed the need for combination over competition.Footnote ⁷⁰ To old conservatives’ left, progressive reformers like Theodore Roosevelt discerned the potential efficiency of big business and distinguished between “good” and “bad” trusts on the basis of whether they benefited the consumer.Footnote ⁷¹ Meanwhile, Beard and other progressive scholars portrayed judicial figures as the lackeys of big business.Footnote ⁷² (Like others, Horwitz used “progressive” to refer to an ideology, to a movement and individuals like TR who sometimes exemplified it, and to a persisting tradition in legal historiography.)

Together, Horwitz contended, new conservatives and progressives created a crisis in the early twentieth century for the “legal fundamentalism” of the old conservatives that concentrated on categorization, autonomy, objectivity, neutrality, and the apolitical nature of law.Footnote ⁷³ What followed the final demolition of the old order after the 1930s was the new era of “balancing tests” in constitutional law that proved law was just politics by another name.Footnote ⁷⁴ Horwitz urged reconsideration of “our legal and political history.”Footnote ⁷⁵ Otherwise, the response to contemporary conservatism would rehash “the arbitrary and wasteful” New Deal state that “collaborated with a corrupt and powerful military industrial complex” and whose decline had propelled Reagan to power.Footnote ⁷⁶ So, too, the “Progressive conception of the state as the means to our salvation” must be revisited.Footnote ⁷⁷

Just as Horwitz savaged progressive scholarship from the left, it came under fire from the right, doubtless because of Reagan's popularity as well, and the rise of law and economics. Richard Epstein briefly waxed nostalgic for the “antipaternalist”Footnote ⁷⁸ Fuller Court when he declared most regulatory legislation unconstitutional in his 1985 book, Takings.Footnote ⁷⁹ He would later laud Lochner for holding that “ordinary people, even foreign immigrants, were entitled, as autonomous human beings, to make their own decisions about how, why, and on what terms to exchange economic goods and services.”Footnote ⁸⁰ Epstein and other Chicago-style law and economics scholars spread the message that early twentieth century progressives and their New Dealer and Great Society descendants did not appreciate the blessings and breadth of the liberty enshrined in the Fifth and Fourteenth Amendments and that government intervention in the economy backfired by bruising its intended beneficiaries. But with the exception of Bernard Siegan,Footnote ⁸¹ most early lawyer-economists touched on history cursorily.

As revisionism entered its boom period in the 1980s, then, its historian practitioners would have disclaimed a desire to legitimate conservatism. Like the progressives, Horwitz stressed the conflict between law and majoritarian democracy. Some law teachers, like Horwitz and Duncan Kennedy, came to revisionism not only from desire to set the historical record straight, but with the political motivation of enlisting it in a critique of liberalism from the left. Other revisionist historians/law professors would have said that they wrote to correct historians’ misinterpretations and had no political agenda.

Where Horwitz emphasized the hold of the liberal state in accounting for progressive legal historiography's staying power, Melvin Urofsky provided other explanations for its endurance in his 1985 article about protective legislation in the courts during the Progressive era.Footnote ⁸² Just as William Novak would subsequently demonstrate how the state successfully employed the police power to safeguard the people's welfare during the first three quarters of the nineteenth century,Footnote ⁸³ so Urofsky showed the vitality of social welfare legislation in the late nineteenth and early twentieth centuries. He foregrounded the U.S. Supreme Court's 1898 opinion of Holden v. Hardy, which upheld a statute limiting the number of hours for those working in the hazardous mining and smelting industries as a legitimate use of the police power against claims it violated liberty of contract.Footnote ⁸⁴ “Holden v. Hardy became the paradigmatic case for approving protective legislation, with its holding that special and dangerous conditions justified the intervention of the state.”Footnote ⁸⁵ Lochner, according to Urofsky, was “an aberration” that most state courts either ignored or distinguished away.Footnote ⁸⁶ In fact, state courts, which early twentieth-century reformers considered even more conservative than the U.S. Supreme Court, routinely approved the wages and hours, child labor, employee liability, and workmen's compensation laws that Progressives championed.Footnote ⁸⁷ Yes, Urofsky acknowledged, the courts were anti-union,Footnote ⁸⁸ and notorious exceptions to their overall record of moderate progressiveness existed. In the 1911 case of Ives v. South Buffalo Railway Company, for example, handed down on the eve of the Triangle Shirtwaist Factory Fire,Footnote ⁸⁹ New York's high court voided the state's workmen's compensation law, one of the nation's first. According to the New York judges, the statute imposed “a liability based solely on legislative fiat” that deprived employers of due process of law.Footnote ⁹⁰ But most state courts accepted such legislation, and even New York's high court reversed itself four years later.Footnote ⁹¹

Why, then, did reformers and their successors view courts during the Progressive Era as reactionary enemies of reform? Urofsky offered five explanations. The first was the federal system. Judges differed in approach from state to state. State courts in New York and Illinois seemed more hostile to protective legislation than those of Massachusetts and Oregon.Footnote ⁹² (As Urofsky pointed out, however,Footnote ⁹³ though the Illinois Supreme Court struck down protective legislation regulating the number of hours women could work in 1895,Footnote ⁹⁴ it approved the constitutionality of legislation establishing a ten-hour day for women fifteen years later modeled after the Oregon statute the US Supreme Court upheld in Muller v. Oregon in 1908.Footnote ⁹⁵ And Felice Batlan would qualify the picture for New York by demonstrating that despite its hostility to workmen's compensation in Ives, the Court of Appeals between 1885 and 1905 upheld use of the police power “in cases involving tenements, food products, zoning, child labor, Sunday laws, and environmental conservation,” and, of course, the legislation at issue in Lochner.)Footnote ⁹⁶ The second was the media, which focused on exceptions like Ives.Footnote ⁹⁷ The third was progressive reformers and scholars, then and later, who also did so.Footnote ⁹⁸ The fourth was that the US Supreme Court swung in a conservative direction from the 1920s until 1937, which constrained state courts, affected reformers’ agendas, and colored memories of the progressive period.Footnote ⁹⁹ And the final reason was frustration. Passage of reform legislation did not ensure change for the better, though there was no reason “to blame the courts for absence of effective laws or for the failure to provide sufficient funds and personnel for enforcement.”Footnote ¹⁰⁰ Scholars should give the U.S. Supreme Court justices tarred as Lochner’s champions and state court judges a break.

Or maybe not. Whatever the judges and justices anywhere actually did, “the threat of judicial review—what Henry Farnham of the American Association for Labor Legislation called the ‘bugaboo of constitutionality’—gave pause to many would-be reformers,” John Witt would stress.Footnote ¹⁰¹ William Forbath sounded another note of caution about exonerating judicial actors in 1985 at the same time that he integrated the revisionists’ insights into his important article, “The Ambiguities of Free Labor: Labor and Law in the Gilded Age.” Forbath pointed to the power of free labor ideology in antebellum America and pointed out that abolitionist lawyers first claimed liberty of contract as “a constitutional right.”Footnote ¹⁰² That was the tradition, along with classical liberalism, Forbath said, that Field drew on in his Slaughterhouse dissent when he condemned the majority's view that the Fourteenth Amendment did not interfere with the state's police power.Footnote ¹⁰³ After all, Field cited Adam Smith and provided “a pristine declaration of ‘free labor’ ideology” when he insisted that the Thirteenth and Fourteenth Amendments guaranteed all American citizens equal rights “in the lawful pursuits of life throughout the whole country.”Footnote ¹⁰⁴ But what happened? During the Gilded Age, “new liberals,” many of whom were “Jacksonians, even radical Jacksonians, in their youths,”Footnote ¹⁰⁵ trimmed Free Labor of its “democratic strands,” strengthened its liberal ones, and poured their “‘new liberal’ wine” into “Free Labor bottles.”Footnote ¹⁰⁶ The judges and justices who drank from them struck down legislation that interfered with “capitalists’ property rights” on the grounds that it abridged “the worker's right to ‘dispose’ of his ‘property’—that is his labor—as he saw fit.”Footnote ¹⁰⁷

Pace Urofsky, they were not reform-minded. Indeed, Forbath would soon argue, by their acquiescence in government by injunction and reliance on doctrines like liberty of contract and substantive due process to protect property rights, courts scared the American labor movement away from dependence on the state. Courts pushed unions toward an ideology of voluntarism. They prevented workers from emulating Europeans by forging a class-based movement with a radical agenda. The courts, Forbath seemed to say, explained American exceptionalism and the weakness of socialism here. State and federal courts invalidated about sixty laws that the labor movement sought in the 1880s and 1890s,Footnote ¹⁰⁸ and issued well over 2000 injunctions against strikes between 1880 and 1910.Footnote ¹⁰⁹ Judges’ support of workers’ compensation during the Progressive Era counted for little, Forbath contended, since business interests promoted it. Organized labor preferred the legislative restriction of common law doctrines like assumption of risk, the fellow servant rule, and contributory negligence, but legislatures routinely dashed or diluted labor's hopes, and when they did not, courts mostly vitiated the legislation.Footnote ¹¹⁰ Forbath reminded us that perceptions of the federal courts’ hostility to the labor movement shaped progressivism at the same time that he insisted late nineteenth-century judicial actors did not willfully distort the law. Though judges and justices did not mean to pervert republican principles, “they were prompted by profound class fears, and they were dispensing class justice in a fairly strict sense: the most basic assumptions on which individual decisions rested were not regarded as legitimate by the bulk of workers whose rights they claimed to protect.”Footnote ¹¹¹

Despite Forbath's “yes, but” answer to the revisionists, 1985 was shaping up as a banner year for them. Michael Les Benedict, too, condemned progressive scholars’ treatment of “the Court's rhetoric about liberty and due process” between the 1880s and early 1930s as “cant” that covered up its promotion of the rich and business interests.Footnote ¹¹² He too observed promising signs of change in the revisionists’ work on individuals like Cooley and Field.Footnote ¹¹³ Where Horwitz used the eclipse of contemporary liberalism by conservatism to argue for a fresh approach, Benedict attributed the erosion of traditional progressive interpretations to the recent problems of modern American liberalism and the revival of conservatism.Footnote ¹¹⁴

Nevertheless, Benedict continued, no revisionist had yet offered a “full description of the ethical, libertarian foundation of laissez-faire constitutionalism,”Footnote ¹¹⁵ which he now provided. Of course it reflected classical economics’ insistence on the laws of supply and demand. Yet Benedict invaluably reminded his readers, William Graham Sumner and American other patron saints of laissez-faire viewed themselves as voices in the wilderness. The public obviously did not believe that government should keep its hands off the economy during the period that the Supreme Court was giving birth to substantive due process.Footnote ¹¹⁶ Nor did businessmen, who were sufficiently timorous to have surrendered to the Leviathan. While they might point to laissez-faire as the reason that judges should void legislation that emptied their wallets “and they shared a vague notion that economic problems were not amenable to government-imposed solutions,” business interests understood that government meddling in the economy proved too helpful “to be called laissez-fairest” themselves. Supreme Court justices who regularly sustained such intervention were no laissez faire ideologues, either.Footnote ¹¹⁷

The limits justices, judges, and scholars imposed on the state were what deserved attention, Benedict said. Those restrictions grew out of their faith in a principle dear to late nineteenth century elite laissez-fairists and generations of Americans alike. They believed that “liberty could not survive in a polity where control of government enabled those in power to secure their interests at the expense of those without.”Footnote ¹¹⁸ Endangering liberty would ensure that power struggles, class conflict, and corruption would consume the republic.Footnote ¹¹⁹ As a result, laissez-fairists hated “‘special’ and ‘class’ legislation.”Footnote ¹²⁰ So, too, onetime Jacksonians, like Cooley, Field, “and the other radical Democrats of the 1830s and 1840s,”Footnote ¹²¹ who subscribed to the Jeffersonian and Jacksonian principle of “equal rights for all, special privileges for none,”Footnote ¹²² complained that such legislation “transferred power from one person to another without due process of law.”Footnote ¹²³ When judicial actors responded to the hostility to special privilege embedded in “speech after speech, legal and popular article after article and article, legal brief after brief” by gradually developing doctrines in the late nineteenth century like substantive due process and liberty of contract, they did not act out of a desire to prevent the “privileged” class. Rather, according to Benedict, “they perceived ‘class legislation’ where a new generation would see laws designed to protect everyone.”Footnote ¹²⁴

So, by the 1980s, the revisionists had indeed made headway in their fight against progressive legal historiography. His tireless promotion of revisionism would make Stephen Siegel its dean over the next three decades. Siegel rooted classical legal thought in nineteenth-century moral science,Footnote ¹²⁵ as well as in a “historism” grounded on a recognition that “social norms and institutions qualitatively changed over time and that these changes were the product of temporal causes.”Footnote ¹²⁶ He maintained in 1990 that the unfolding new story supported “the unsurprising (yet revisionist) conclusion” that ideology shaped American constitutional development.Footnote ¹²⁷ Clearly, however, revisionists still felt beleaguered, as seen in their continued claim that progressive scholars and their heirs wrongly insisted “Gilded Age and Progressive-era judges read into the Constitution their own probusiness, antilabor biases.”Footnote ¹²⁸ In reality, revisionists reported, those judicial actors proved “faithful, heroically so, to the reigning constitutional ideology of limited government and state neutrality.”Footnote ¹²⁹

That defensiveness marked three books that appeared nearly simultaneously during the early 1990s. In 1992, Transformation II showcased “the crisis of legal orthodoxy” that ultimately led to the fall of the classical legal thought that had, in Horwitz's view, given law “a special cultural role as neutral arbiter.”Footnote ¹³⁰ He declared the destruction of the still “dominant” progressive understanding of the late nineteenth and early twentieth century Courts,” which he blamed on “the legitimating needs of the New Deal,”Footnote ¹³¹ one of his “most fundamental goals.”Footnote ¹³² In his 1993 Holmes Devise volume, we have seen, Fiss assumed that progressive legal historiography remained ascendant and that his conclusion that the Fuller Court loved liberty, not the ruling class, would cause consternation. And political scientist Howard Gillman sounded just as anxious in The Constitution Besieged that same year. His examination of police powers jurisprudence during the Lochner era explained that the justices tried to preserve government neutrality by making “a serious, principled effort to maintain one of the central distinctions in nineteenth-century constitutional law—the distinction between valid economic regulation, on the one hand, and invalid ‘class’ legislation, on the other—during a period of unprecedented class conflict.”Footnote ¹³³ Gillman embraced revisionism in the hope of encouraging his fellow political scientists to take judicial decisions and opinions seriously. He mourned that progressive scholars and their misreading of early twentieth century constitutional jurisprudence put “a runaway laissez-faire judiciary”Footnote ¹³⁴ in control of the Court's reins and turned its output into “empty rhetoric designed to mask policy preferences.”Footnote ¹³⁵ Given the popularity of their challenge, Horwitz, Fiss, and Gillman protested too much.

Yet while some scholars endorsed revisionism, most Rehnquist Court justices did not. That became evident when the Court preserved the constitutional right to abortion that the 1973 decision of Roe v. Wade Footnote ¹³⁶ grounded in substantive due process nineteen years later in Planned Parenthood of Southeastern Pennsylvania v. Casey.Footnote ¹³⁷ “To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question,” Justices Kennedy, O'Connor, and Souter stressed in their plurality opinion.Footnote ¹³⁸ Sometimes, they maintained, such drastic action proved necessary. To revisionists’ bemusement, the three justices commended the Court for killing laissez-faire and Lochner in 1937.Footnote ¹³⁹ The Great Depression, they said, taught Americans that their vision of “contractual freedom…rested on fundamentally false assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare.”Footnote ¹⁴⁰ Kennedy, O'Connor, and Souter justified their refusal to overrule Roe on the grounds that “neither the factual underpinnings” of its “central holding nor our understanding of it has changed.”Footnote ¹⁴¹ Obviously, the justices had not gotten the revisionist message Lochner was a freak, and it was left for the dissent to point to Holden v. Hardy.Footnote ¹⁴² Yet Kennedy, O'Connor, and Souter did shine the spotlight on Lochner.Footnote ¹⁴³

Even if they were right about the death of Lochner, its ghost still haunted constitutional law. Though the Rehnquist Court invalidated far fewer state regulations than the Warren or Burger Courts, it issued “an unprecedented thirty-four decisions invalidating federal statutes,”Footnote ¹⁴⁴ beginning in 1995. Consequently, liberal law professors suddenly began complaining “about judicial supremacy and the hegemony of the Supreme Court,” Barry Friedman wrote. It was “the early 1900s all over again, and one might as well forget that the Warren Court happened in the middle.”Footnote ¹⁴⁵ Indeed a liberal like Owen Fiss reached to revisionism precisely because he wanted to prevent Lochner from undercutting “the activism of the Warren Court”Footnote ¹⁴⁶ and to critique the Rehnquist Court's prioritization of “liberty over equality.”Footnote ¹⁴⁷

In contrast, conservative law professors during the late 1990s came to revisionism out of a desire to praise, not bury, Lochner. Michael Phillips gave revisionists ammunition by proving anew and fully that progressives exaggerated the number of cases that the Court struck down on substantive due process grounds between the 1890s and the 1930s.Footnote ¹⁴⁸ David Bernstein, who hoped to rehabilitate Lochner and the Court's liberty of contract decisions, extolled revisionists for nearly eradicating “the notion that the origins of liberty of contract lay in ‘laissez-faire Social Darwinism.’”Footnote ¹⁴⁹ They established that “liberty of contract doctrine arose from a hostility to ‘class legislation’ and a desire to protect natural rights deemed fundamental to the development of American liberty,” Bernstein cheered.Footnote ¹⁵⁰

Revisionists had reason to crow by decade's end. Like Stephen SiegelFootnote ¹⁵¹ and Barry Cushman,Footnote ¹⁵² Gary Rowe declared progressivism slain.Footnote ¹⁵³ Rowe made an important point when he worried that “the new narrative remains structured, and therefore somewhat limited, by the one it set out to obliterate,”Footnote ¹⁵⁴ but he remained bullish about the future. Echoing a few voices from Walter Berns in the 1950sFootnote ¹⁵⁵ to G. Edward White in the 1990s,Footnote ¹⁵⁶ Rowe also exhorted scholars to “cement revisionist gains” by abandoning the anachronistic phrase “substantive due process.”Footnote ¹⁵⁷ The revisionists, Rowe said, rightly sought “a coherent explanation for what their predecessors shrugged off as mere judicial caprice,” but wrongly used “their historiographical antagonists’ central terms,” since no judge of the period would have spoken of “substantive due process.”Footnote ¹⁵⁸ Meanwhile, William Novak held out the hope that “a fuller study of law….[b]eyond the ubiquitously invoked unholy trinity of laissez-faire constitutional cases E.C. Knight, In re Debs, and Lochner v. New York” would destroy the “the persistent notion of law as an ogre frustrating liberal reform.”Footnote ¹⁵⁹

Come the millennium, Stephen Siegel elegantly summarized revisionism's four tenets. First, unlike the progressive historians, revisionists believed that ideology, rather than “material self-interest,” shaped legal history.Footnote ¹⁶⁰ Second, “Gilded Age” scholars, lawyers, judges and justices like Stephen Field melded “Jacksonian equal rights” and “free labor ideology” into a “laissez-faire constitutionalism” of antebellum origins that “was not arbitrarily imposed on the nation by jurists crassly seeking to promote the economic interests of the Gilded Age's emergent corporate plutocracy.”Footnote ¹⁶¹ Third, those figures engrossed by private law also built “a free-enterprise-friendly body of legal doctrine but advanced it as the natural outcome of their scientific approach to legal decision making.”Footnote ¹⁶² Like their great missionary, Christopher Columbus Langdell, who became dean of Harvard Law School in 1870 and revolutionized legal education, those private law scholars believed the “legal principles that provided the premises of legal reasoning were themselves analytically determinable through an inductive study of appellate case reports” and saw law as a science.Footnote ¹⁶³ Fourth, together, laissez-faire constitutionalism and private law Langdellianism constituted “classical legal thought.” The interrelated spheres of public and private law consistently promoted “liberal, Lockean values” and “comprehensive rationalism.”Footnote ¹⁶⁴

A decade later, revisionist, G. Edward White would also call attention to the “astonishing” growth of “counter-Progressive revisionism.”Footnote ¹⁶⁵ The revisionists rejected the “crumbling…Progressive orthodoxy,” he wrote.Footnote ¹⁶⁶ Orthodoxy yielded books and articles “written by historians or political scientists who either had no legal training or had chosen to attach themselves to history or political science departments.”Footnote ¹⁶⁷ Progressives frequently employed an “exposing, accusing…authorial voice” as they purported to reveal “that behind doctrinal cant and obfuscation lay powerful judicial urges to maintain the established order and to prevent outsiders from unsettling it.”Footnote ¹⁶⁸ White pointed to the stakes in the controversy:

An Assessment

By 2010, revisionists had painted a rich portrait of late nineteenth and early twentieth century legal though. They mined cases and treatises to show the premises that guided late nineteenth century justices, judges and scholars. They demonstrated that an impressively coherent system of principles and theory of political economy informed the Court's output. They took seriously doctrine, the legal ideas and concepts that animated it, and the constraints it imposed on judicial figures. The context they provided for its work suggested that the Court could not be dismissed as reactionary. They stressed that for every Lochner, there were tens of decisions in which justices and judges upheld social welfare legislation. They made it clear that at a time of rapid change and danger to an assumed harmony of interests, judicial actors defended time-honored values that underlay the American constitutional order—commitment to human liberty, economic opportunity, dual federalism, state neutrality, and free-labor, as well as a hostility to class legislation. Naturally, they differed over how to rank those values and, probably also, what they meant.Footnote ¹⁷⁰

Happily, revisionists replaced “formalism” with the more fleshed-out “classical legal thought.” Progressives like Roscoe Pound saw formalism as “a jurisprudence of conceptions,”Footnote ¹⁷¹ or conceptualism. Like conceptualism, whose “sworn foe” the progressive scholars and their successors became,Footnote ¹⁷² formalism early became a term of derision.Footnote ¹⁷³ As Fred Schauer admitted when he defended its virtues in the 1980s, the “formalism” that many still associated with Lochner and other Fuller Court opinions had acquired so many bad connotations that most shrank from association with the word.Footnote ¹⁷⁴ Consequently, the hegemony of the formalist label was disintegrating. David Rabban questioned its applicability for a number of the era's most prominent legal thinkers.Footnote ¹⁷⁵ Bruce Kimball ably demonstrated that the progressives’ favorite whipping boy, Langdell,Footnote ¹⁷⁶ was not “formalistic,” but attuned to the policy and justice implications of his scholarship,Footnote ¹⁷⁷ if not of legal education.Footnote ¹⁷⁸

The case revisionists made for abandoning “substantive due process” proved almost as compelling. That late nineteenth and early twentieth century judges, justices, and law writers would have found the term murky did not provide reason to relinquish it. Scholars used other terms such individuals would not have known—“classical legal thought,” for example. So when White and Rowe observed that the Supreme Court did not talk of “substantive due process” until the early 1950s, why should anyone care?Footnote ¹⁷⁹ In any event, the players might well have recognized at least the idea of “substantive due process.” When Justice Harlan said in Mugler v. Kansas, for example, that courts were “not bound by mere forms” but were “under a duty to look at the substance of things,”Footnote ¹⁸⁰ and quoted that language in Powell v. Pennsylvania,Footnote ¹⁸¹ he came close to distinguishing procedural from what we now think of as substantive due process. Still, “substantive due process,” particularly as applied to the late nineteenth- and early twentieth-century police power cases, possessed the derogatory connotations of formalism and implied that the judges and justices under its sway behaved as antidemocratic ideologues.

Moreover, White gave us a better and less loaded way of understanding how judicial actors perceived their mission when he wrote that we should speak of “guardian review,” not “substantive due process.” No matter how antidemocratic the progressives found them, White maintained, late nineteenth- and early twentieth-century justices did not see themselves as substituting their will for that of the people. Rather, they viewed themselves as guardians and enforcers of “the timeless, foundational principles on which the Constitution rested,”Footnote ¹⁸² a mission requiring them to police “the constitutional line between permissible public regulations and impermissible encroachments into the private sphere of life.”Footnote ¹⁸³ Their difficult task, according to White, required holding “two assumptions: that the states (and sometimes the federal government under the commerce power) had power to protect the health, safety, and morals of their citizens; and that ‘liberty’ in the Due Process clauses contained….substantive guaranties.”Footnote ¹⁸⁴ As Chief Justice Taft famously put it, the effort entailed “laboriously…pricking out…[t]he boundary of the police power beyond which its exercise becomes an invasion of the guaranty of liberty under the Fifth and Fourteenth Amendments.”Footnote ¹⁸⁵

While revisionists laudably revised our legal vocabulary, they avoided the sources that attracted progressive scholars. Despite Benedict's reference to “brief after brief,”Footnote ¹⁸⁶ revisionists generally did not lavish much attention on the lawyers and litigation strategies creating the arguments the Court heard, as Benjamin Twiss did in Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court,Footnote ¹⁸⁷ and as Daniel Ernst,Footnote ¹⁸⁸ Logan Sawyer,Footnote ¹⁸⁹ Laura Weinrib,Footnote ¹⁹⁰ Kenneth Mack,Footnote ¹⁹¹ Risa Goluboff,Footnote ¹⁹² and other legal historians do today. Nor did revisionists pay much attention to judicial actors’ extralegal speeches and/or private correspondence that sometimes contained apocalyptic warnings of the dangers posed by the police power and government regulation to private property, which Arnold Paul excavated in Conservative Crisis and the Rule of Law Footnote ¹⁹³ and Swisher relied on in his biography of Field.Footnote ¹⁹⁴ Nor did they concentrate on contemporary popular and scholarly dissatisfaction with the Supreme Court.

Indeed, in general, the individual justices’ life experiences did not seem of great interest to revisionists. There was something to Manuel Cachan's complaint that after proclaiming that progressives’ politics distorted their portrayal of Gilded Age figures, revisionists tried “to rehabilitate these individuals by portraying them as completely disconnected from the ‘inevitable’ changes that were occurring in America's speedily industrializing economy” and as “clueless historical actors being relentlessly swept along by ideological currents.”Footnote ¹⁹⁵ The revisionists gave law more agency than their human subjects. Oddly, Daniel Ernst observed, Duncan Kennedy maintained that Justices Peckham and Harlan “shared a common legal consciousness” that played a greater role in determining the outcome in Lochner than their need to side with the rich without making any mention of the justices’ “education, legal careers, or political experiences.”Footnote ¹⁹⁶ Certainly, however, revisionists could produce great judicial biographies. G. Edward White's 1993 biography of Holmes, for one example, brilliantly exposed the interrelationship of his subject's private and professional lives to show how Holmes introduced three of the most important themes dominating American jurisprudence after the period of guardian review: “deferential judicial review in constitutional cases, protection for free speech, and the belief that judges ‘make’ rather than ‘find’ law.”Footnote ¹⁹⁷ Generally, however, while revisionists included detail about life experience when they found it relevant, as when McCurdy discussed Field's Jacksonianism, biography took a back seat to analysis of judges and justices’ work product.

Who would deny, though, that revisionism is a salutary development? Revisionists undercut the understanding of doctrine as a rationalization of class interests—which, of course, did not and could not exclude the possibility that doctrine effectively served class interests or that judges lacked biases in their favor. “Older Lochner era scholarship mounted a caustic morality play—small producers against corporations, business against workers, courts against legislatures,” whereas the “redemptive” narrative of revisionism features judges striving “mightily on behalf of what they considered founding commitments to personal liberty, to society without classes, to a neutral, ‘night watchman’ state tested by new and disruptive forms of association,” Karen Orren maintained.Footnote ¹⁹⁸ “Both interpretations are supported by ample evidence” and are, in truth, “mirror images” of each other.Footnote ¹⁹⁹ “One highlights policy results, debunking the reasons judges offered for their decisions; the other extols the judges’ reasons, downplaying the impact on society of what they decided.”Footnote ²⁰⁰ That's one way to split the difference between the two camps—though as I will show, judicial motivation interested progressives, who used additional sources beside the language of law to illuminate it, and progressives were not always caustic or moralistic. Before I contend that revisionists’ scorched earth tactics impede coexistence, however, I suggest that revisionists and progressives share a weakness.

What's in a Name?

Historians love to make parlor games out of our obsession with periodizing, titling, and characterizing eras. Note the revisionists’ precision with respect to “legal” concepts, like “substantive due process,” and compare that with their approach to “historical” ones. Most labels for historical periods are more complicated than they seem and their meaning changes over time, but “Jacksonian,” “Gilded Age,” and “progressive” are real corkers. The non-legal historian who happened on this debate and found that it illuminated American intellectual and political history might well conclude that both “revisionists” and “progressives” throw around words like “Jacksonian,” “Gilded Age,” and “progressive” carelessly, and that “revisionist” is not a useful label, either.

Does that matter? As ever,Footnote ²⁰¹ I rely on Martin Flaherty: “Legal arguments relying on economics, philosophy, or sociology are more convincing when they comport with the standards set by those disciplines. Nothing prevents the same point from applying to arguments based on history.”Footnote ²⁰² Periodization and terms mean much to historians. Recall what happened when academic lawyers discovered “republicanism” just as historians like Linda Kerber and Daniel Rodgers were concluding that it was “in danger of coming to signify too much and therefore to mean too little.”Footnote ²⁰³ Nonlegal historians undercut law professors’ credibility by showing that they deployed republicanism carelessly.Footnote ²⁰⁴ As Rodgers said, “For explanations of this sort to work,…the ideological positions being advanced need to hold sure, precise traction. Let them skid and slip, and what is advanced as explanation may begin to look like something else: a word game, a post-facto labeling exercise.”Footnote ²⁰⁵ Even if one disagrees about the point that legal historians should hold themselves to nonlegal historians’ standards, I again follow Flaherty in falling back on the lesson from childhood that “something worth doing…is worth doing well.”Footnote ²⁰⁶

We would all agree, I imagine, that the “Jacksonian Era” refers to Andrew Jackson and the “Jacksonian” Democrats who rose to power in the 1820s and dominated American politics for some time thereafter. When, however, did the period begin, and when did it end? Did the Jacksonian Era begin in 1824 with the “corrupt bargain” that swept John Quincy Adams into office or with Jackson's belated displacement of him in 1828? Did it end when Old Hickory left the White House for the Hermitage in 1837, or did it endure through the “Second Party system” that lasted until 1854?Footnote ²⁰⁷

To whose Jacksonian and to which Jackson do scholars allude? Just to mention a few that generations of historians have given us,Footnote ²⁰⁸ Frederick Jackson Turner's Jacksonian was a western frontiersman, and his Jackson personified “frontier democracy.”Footnote ²⁰⁹ But Arthur Schlesinger, Jr.’s Jacksonian belonged to a coalition of resentful eastern workingmen, small farmers, and intellectuals that “supplied the most solid foundations for political antislavery,” protested the use of government to promote aristocracy and monopoly, and ultimately perceived liberalism and capitalism as intertwined.Footnote ²¹⁰ Schlesinger's Jackson prefigured FDR.Footnote ²¹¹ Richard Hofstadter's contemporaneous Jackson, however, was “a simple, emotional, and unreflective” opportunist who “swung to the democratic camp when the democratic camp swung to him.”Footnote ²¹² Jackson's Jacksonianism was “essentially a movement of laissez-faire, an attempt to divorce government and business,”Footnote ²¹³ personified by the judgmental New York Locofoco, William Leggett, who made equality of opportunity his lodestar by championing “laissez faire liberalism, the natural rights philosophy of the Declaration of Independence, and strict construction of the Constitution.”Footnote ²¹⁴ Yet Charles Sellers's fin-de-(twentieth century)-siècle Jacksonians acclaimed “the ‘triumph of the great principle of self-government over the intrigues of aristocracy’ as ushering in a democratic Millennium’” in 1828.Footnote ²¹⁵ Their hero set a “patriarchal afflatus” of democracy against the capitalist transformation that created the “market revolution” in the “Jacksonian America” of 1815–1846.Footnote ²¹⁶ And in the twenty-first century, while Sean Wilentz rediscovered and refurbished Schlesinger's Jacksonianism,Footnote ²¹⁷ and Jonathan Earle foregrounded Jacksonian Free Soil Democrats’ antislavery credentials,Footnote ²¹⁸ Daniel Walker Howe advocated bidding “goodbye to the ‘age of Jackson.’”Footnote ²¹⁹ Howe argued that Old Hickory did not unite and indeed polarized many of his contemporaries and that “Jacksonian Democracy” championed “slavery and white supremacy, and opposed the inclusion of nonwhites and women within the American civil polity.”Footnote ²²⁰

No matter how we define Jacksonian, more work is needed to determine how many classical legal thinkers deserve the label.Footnote ²²¹ The revisionists’ Exhibit A is Stephen Field,Footnote ²²² but some historians disagree. Manuel Cachan has shown that the evidence suggesting that Field was “a radical Democrat who early on allied with the antimonopolist Locofoco or Equal Rights Party of New York” or a “Free Soil, Free Labor radical” later is slim.Footnote ²²³ Moreover, Cachan observes, by the time of his Slaughterhouse dissent, Field was using Smith's “Wealth of Nations to define Free Labor” and making Free Labor synonymous with freedom of contract.Footnote ²²⁴ While corporate domination concerned some steeped in “the Jacksonian and free-labor traditions” after the Civil War, Paul Kens emphasizes, corporate freedom preoccupied others like Field. The fact that members of the two groups used the same vocabulary of “liberty, privilege, and abuse of power” derived from their shared past does not mean they could understand each other.Footnote ²²⁵ What exactly do we gain by calling both Jacksonian?

While “Jacksonian” could prove a useful term that legal historians just need to define more precisely, they should abandon references to “Gilded Age” legal thought. Historian Rebecca Edwards, who used Gilded Age in the title of the first edition of her insightful book about the period only because its publisher pressed her to do so,Footnote ²²⁶ and who won quotation marks around “Gilded Age” for the second edition,Footnote ²²⁷ has made the case for abolition of the term and its replacement by a “Long Progressive Era” dating until 1920 or FDR's 1932 election.Footnote ²²⁸ Nonlegal historians have not yet stopped talking about the “Gilded Age,” but they disagree about what characterized it or how to periodize it.Footnote ²²⁹ When Mark Twain and Charles Dudley Warner gave the “Gilded Age” its name in 1873, they referred to the greedy speculators who wrought havoc on the economy, the ostentatious nouveau riche who behaved as if even gold could be gilded, and the corrupt Washington politicians immediately after the Civil War.Footnote ²³⁰ Naturally, they could not say when the “Gilded Age” would end, since theirs was “a tale of today,”Footnote ²³¹ and their contemporaries rarely referred to the “Gilded Age.”Footnote ²³² Not until the 1920s and 1930s did progressive historians like Charles Beard whom the revisionists deride seize upon the phrase, “Gilded Age,” to apply to the late nineteenth century, and they did not mean it as a compliment.Footnote ²³³ They intended the term, Neil Harris said, to connote “corruption, reaction, and retreat from serious obligations,” politically; ostentation and excess, “plutocracy and popular misery,” economically; and “eclecticism, sentimentality, façade worship, and indecision” aesthetically.Footnote ²³⁴ Why would any legal historians, especially the revisionists, want to associate themselves with that dystopian vision? Words like “Victorian”Footnote ²³⁵ and, when appropriate, “late-Victorian”Footnote ²³⁶ would suit us better.

Of course, “progressive” is an even dicer term than “Gilded Age.” Historians have been fighting about the meaning and periodization of progressivism and the Progressive Era almost since Theodore Roosevelt, Woodrow Wilson, Jane Addams, Florence Kelley, Louis Brandeis, and Robert La Follette bestrode the world like colossi. And like progressive legal historians, revisionists employ the word, we have seen, for many different purposes. “Progressive” refers to persons like Theodore Roosevelt, who focused his 1908 State of the Union address on judges unable or unwilling to stop “the wrongdoing” of rich industrialists or to relieve “wageworkers…crushed down by these modern industrial conditions.”Footnote ²³⁷ Roosevelt ominously predicted to Justice William Day that “if the ‘spirit’ behind Lochner-type decisions were to spread ‘we should not only have a revolution, but it would be absolutely necessary to have a revolution because the condition of the worker would become intolerable.’”Footnote ²³⁸ As Victoria Nourse has shown, TR played as outsized a role as Holmes in making Lochner infamous and to gin up support for his 1912 proposal to allow the public to recall individual state court judicial decisions invalidating state legislation enacted pursuant to the police power or general welfare powers.Footnote ²³⁹ “Progressive” also refers to the party formed by TR and others in 1912 to make that and other demands.Footnote ²⁴⁰ Indeed skepticism about the Constitution and judicial power unites the famously disunited early twentieth-century progressives and members of the Progressive Party. Yet “Progressive” also refers to a period whose meaning and duration historians contest.Footnote ²⁴¹ And the word describes a tradition in legal historiography that revisionists assume includes every critic of the Court and advocate of market regulation during this period from Charles Beard and Company in the 1900s to Robert McCloskey in the 1960s.Footnote ²⁴² That's too much weight for the one little word, “progressive,” to carry.

So what are we to do? In a valuable survey of how historians have portrayed the Court and the Constitution between 1886 and 1937, William Wiecek divides their work into “contemporary or progressive interpretations, 1910–1940” that challenged “the formalistic, reverential and intellectually filiopietist tenor of then-current historical writing.”Footnote ²⁴³ Next, Wiecek says, come the “liberal or neo-progressive interpretations” from 1940–1970 that stressed the Social Darwinism and formalism of classical legal thought, and painted judges and justices as ideologically motivated laissez-fairists.Footnote ²⁴⁴ Unlike earlier progressives, some of whom Wiecek considered bewitched by “the vision of ‘the People versus the Interests,’ later neo-Progressives did not fall into that oversimplification,” and attributed “causal effect to ideas—which is precisely why they took the thought of classical jurists so seriously.”Footnote ²⁴⁵ Finally, beginning around 1970, the more sympathetic revisionists saw classical legal thinkers as seizing on “core values of the American experience.”Footnote ²⁴⁶

This taxonomy has much to recommend it. One need only pick up a mid-twentieth-century “neo-Progressive” book like Sidney Fine's Laissez Faire and the General Welfare State,Footnote ²⁴⁷ Robert McCloskey's American Conservatism in the Age of Enterprise, Footnote ²⁴⁸ Morton White's Social Thought in America: The Revolt Against Formalism,Footnote ²⁴⁹ or Benjamin Twiss's Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court Footnote ²⁵⁰ to be reminded how much laissez-faire thought, Social Darwinism, and the revolt against formalism fascinated “neoprogressives.” Still, I see the lines between the “Progressives” and “neo-Progressives” as more blurred.

As Wiecek acknowledges, the work by both groups was varied.Footnote ²⁵¹ That was particularly true of the pre-World War II progressives.Footnote ²⁵² Some stressed ideas; others, economic concerns and class conflict; others, ideas and material interests.Footnote ²⁵³ Yes, a Gustavus Myers described the justices as “[a]ble servitors of the ruling economic forces” whose decisions “gave to capitalists vast resources, or powers translatable into immense wealth.”Footnote ²⁵⁴ But even Myers insisted, at least sometimes,Footnote ²⁵⁵ that the justices were “not venal” (as he pointed out, a number “died virtually penniless”),Footnote ²⁵⁶ and Edward Corwin ridiculed his simplistic analysis.Footnote ²⁵⁷ So, too, the “neo-Progressives” did not neglect material interests. Consider Clyde Jacobs ending his 1954 book on the influence of late nineteenth century law writers with the conclusion that they served “an industrial oligarchy.”Footnote ²⁵⁸

Since “revisionists” lump “progressives” and “neoprogressives” together as “progressives,” I will also. Nevertheless, scrapping any reference to “progressives,” “neoprogressives,” or “revisionists” would prove preferable. The debate between “progressive” and “revisionist” historians is over forty years old, and the revisionists have been revising too long for “revisionism” to retain its helpfulness. Like “progressive” and “neoprogressive,” “revisionist” is poor shorthand.

One possibility is to replace “progressive” with “externalist” and “revisionist” with “internalist.” In that case, “externalists,” or former “progressives,” would argue for the importance of politics, including economics, as well as law, to the justices’ decision-making, while “internalists,” or former “revisionists,” would highlight the primacy of law over politics, including economics, and the importance of doctrine to understanding judicial behavior in the late nineteenth and early twentieth centuries. That renaming would represent an improvement—but just a modest one. The “internalist-externalist” labels have not done much to bring clarity to the realm of New Deal legal historiography,Footnote ²⁵⁹ and it seems unlikely they would do much for the earlier period, either.

For the purpose of being understood by my contemporaries, I will employ the conventional vocabulary in the rest of this essay. And doubtless some will consider name changes unimportant. Recall the old New Yorker cartoon in which the mother reassures her daughter, “It's broccoli, dear,” only to hear, “I say it's spinach and I say to hell with it.”Footnote ²⁶⁰ To mix metaphors, if one group in the “revisionist-progressive” debate has no use for the insights of the other, relabeling will not turn the proverbial sow's ear into a silk purse. But along with arguing for a change in names (even though I possess none to propose), I suggest below that the revisionists have unfairly lampooned their progressive antagonists and that they should give the progressives another look.

In Defense of Progressive Historiography

In this section I focus on progressive scholars’ accomplishments and maintain that the contemptuous revisionist critique made stick figures out of them. Because of revisionists’ tendency to limit progressives’ approach to the Constitution to Beard and to reduce their analysis of constitutional interpretation to the claim that “judging is…what the judge ate for breakfast or an imposition of the judge's instinctive and class biases on public policy,”Footnote ²⁶¹ we risk forgetting what the progressives did. Under trying conditions, they enriched our understanding of the Constitution, Court, and judicial power at a time when there was plenty of discontent with all three. That was, after all, why the arguments over them occurred. Some, like Beard, identified the Constitution as flawed, while others, like Brandeis and Frankfurter, sought doctrinal change. All confronted the power of the federal courts and their control over the Constitution, which they sensed put labor at risk. They contended that the courts constrained innovation and change, which they identified with state legislatures. They differed sharply on why courts behaved as they did. And they have other fans besides Wiecek in the contemporary academy.

Revisionists treated progressives with the same disdain they charged progressives poured on their subjects.Footnote ²⁶² Thus, for example, in a review essay acclaiming the coming-of-age of revisionist scholarship, Gary Rowe wrote that Robert McCloskey's “description of Gilded Age jurisprudence, though balanced, was laced with such contempt for the possibility of honest judicial reasoning that his prose sneered, almost visibly, whenever he discussed legal doctrine.”Footnote ²⁶³ (At least, he gave McCloskey credit for even-handedness, though it remains unclear how prose that “sneered almost visibly” could be fair.) We have seen that revisionists said that the progressives treated legal language in opinions as “cant”Footnote ²⁶⁴ and often did not even mention which scholars they were indicting, though Horwitz and White did single out Beard.Footnote ²⁶⁵

The Constitution

Yet revisionists who make Beard the first progressive to write a book about the Constitution from a critical perspective should look again. As scholars ranging from Walton Hamilton in the 1930s,Footnote ²⁶⁶ to Eric Goldman in the 1940s,Footnote ²⁶⁷ to Thomas McClintock in the 1950s,Footnote ²⁶⁸ to Gordon Wood in the 1960s,Footnote ²⁶⁹ to Priscilla Machado and Wallace Mendelson in the 1980s agree,Footnote ²⁷⁰ that honor or dishonor, depending on your point of view, belonged to J. Allen Smith, a lawyer who received his PhD in Economics from the University of Michigan, where he studied with Henry Carter Adams and became close to Thomas Cooley.Footnote ²⁷¹ Smith was fired from his first teaching job at Marietta College after he denounced monopoly and voted for William Jennings Bryan in 1896.Footnote ²⁷² He found a home at the University of Washington, where he taught government for the next two dozen years and influenced Vernon Parrington, who dedicated his Main Currents in American Thought to the memory of Smith—“scholar, teacher, democrat, gentleman—He was a friend to all who love justice.”Footnote ²⁷³

Smith's first book in 1907, The Spirit of American Government: A Study of the Constitution, Its Origin, Influence, and Relation to Democracy,Footnote ²⁷⁴ took aim at the Constitution and the Supreme Court. He contended that the Framers intended their “reactionary”Footnote ²⁷⁵ Constitution to “establish the supremacy of the so-called upper class”Footnote ²⁷⁶ and effectively destroy the democratic impulse behind the Declaration of Independence and the Revolution.Footnote ²⁷⁷ “The Constitution was in form a political document, but its significance was mainly economic. It was the outcome of an organized movement on the part of a class to surround themselves with legal and constitutional guarantees which would check the tendency toward democratic legislation.”Footnote ²⁷⁸ The fifty-five men who gathered at Philadelphia wanted the Supreme Court to exercise judicial review, and they secretly planned to make the Court “practically a branch of the Federal legislature and thereby secure an effective check on public opinion.”Footnote ²⁷⁹ As a result, “a small oligarchy of nine irremovable judges”Footnote ²⁸⁰ controlled the United States by rendering decisions that were “almost uniformly advantageous to the capital-owning class in preserving property rights and corporate privileges.”Footnote ²⁸¹ No wonder “the wealthy and conservatives” viewed and venerated the Court and Constitution as the protectors of “vested interests against the assaults of democracy.”Footnote ²⁸² What Smith could not explain to his own satisfaction was “the process by which the worshippers of democracy came to deify an undemocratic constitution,”Footnote ²⁸³ and the reverence that most scholars and the public accorded it.

Smith had no use for the Fuller Court, which he found as undemocratic as the Constitution.Footnote ²⁸⁴ He pointed out that Justice Howell Jackson did not participate in Pollock, the first income tax decision, and the Court divided four-four on the constitutionality of the income tax. In the second Pollock decision, the Court split 5–4 in holding the income tax unconstitutional, with “Justice Shiras who had voted on the first hearing to uphold the Income Tax, now voting against it. This change in attitude of a single member of the court converted what would have been a majority for, into a majority against the measure, overruled a line of decisions in which the tax had been sustained and thereby effectually deprived Congress of the power to impose a Federal Income Tax until such time as the court may change its mind.”Footnote ²⁸⁵ Perhaps “individual temperament, personal views and political sympathies of the Justices” influenced the Court's interpretation of the Constitution, Smith hypothesized.Footnote ²⁸⁶ Had not the Court itself “effectually exploded the doctrine of judicial infallibility, which constitutes the only basis upon which its monopoly of constitutional interpretation can be defended”?Footnote ²⁸⁷

But, as an optimist,Footnote ²⁸⁸ Smith saw hopeful signs. He pointed out that “popular faith in the infallibility of the Supreme Court has been much shaken in recent years” because of decisions like Pollock.Footnote ²⁸⁹ Perhaps someday majoritarianism would prevail and deprive the courts, “the least responsible and most conservative of our organs,”Footnote ²⁹⁰ of their power to void legislation. “It is in our state and municipal governments that democracy is likely to win its first victories.”Footnote ²⁹¹ By bringing change there, Americans could ultimately win reform at the national level.Footnote ²⁹² The fight between “the reactionary forces”Footnote ²⁹³ espousing minority rule and the progressives championing majority represented “the final struggle between the old and the new—a struggle that will not end until one or the other of these irreconcilable theories of government is completely overthrown, and a new and harmonious political structure evolved.”Footnote ²⁹⁴

Smith was a beloved teacher,Footnote ²⁹⁵ but as excerpts of his book began to circulate,Footnote ²⁹⁶ the Seattle Daily Times featured them, along with a front-page story announcing that “prominent Seattle lawyers of all shades of political opinion” said “he writes like an anarchist,” might be insane, and “is unfit to teach at the state university.”Footnote ²⁹⁷ The San Francisco Chronicle characterized Smith as “a Socialist who has caused a big fight in University circles for two or three years.”Footnote ²⁹⁸ In fact, Smith disliked both laissez-faire economics and socialism, though he did favor municipal ownership of utilities, so-called “gas and water socialism.”Footnote ²⁹⁹ The regents stood by him until they could read the whole book,Footnote ³⁰⁰ but apparently, it made them unhappy. The university's president reportedly only managed to prevent them from firing Smith by cutting short a meeting.Footnote ³⁰¹ In 1915, some state legislators vainly sought to abolish Smith's department.Footnote ³⁰²

We should not ignore the courage it took to write as Smith did in an age when few university administrators valued academic freedom,Footnote ³⁰³ as well as how fresh his work seemed to fellow reformers.Footnote ³⁰⁴ The Spirit of American Government proved a critical success.Footnote ³⁰⁵ A mutual friend of the author and Theodore Roosevelt attributed TR's new harshness toward the judiciary to The Spirit of American Government when he wrote Smith about a long walk he had taken with Roosevelt, who “spent a great deal of the time talking about your book.”Footnote ³⁰⁶ The Sprit of American Government left its impact on Robert La Follette, Edward Ross, William Allen White, and countless other progressives too.Footnote ³⁰⁷ And the book obviously made an impression on Charles Beard, who summarized its findings in a review without rendering judgment on them.Footnote ³⁰⁸

Writing in 1930, Yale law professor Walton Hamilton saluted The Spirit of American Government as “the first restrained and scholarly study to replace abstract dogma with vital questions” and one that sparked a “generation of students” who “have cultivated where Smith pioneered:”

Not too shabby. Observe, though, Hamilton's conflation of the Constitution and constitutional interpretation. Smith focused on the Constitution, where Thomas Reed Powell and most constitutional lawyers concentrated on how judicial actors interpreted it. Smith blamed late nineteenth-century justices for carrying out the Framers’ wishes,Footnote ³¹⁰ he certainly portrayed the Court as counter-majoritarian, and he suggested, we have seen, that justices were enacting “their personal views and political sympathies” into law. He devoted relatively little time to analyzing their opinions, however. Probably that was because he saw them as “cant,” and he did imply that most Fuller Court members were nefarious. But Smith's real quarrel was with the Framers.

So was Beard's, although unlike Smith, he defended the Court before launching it.Footnote ³¹¹ Like Smith, Beard, while a Columbia professor, wrote against the background of an explosion of protest against Lochner and other Supreme Court opinions. In 1911, Louis Boudin cast doubt on the Court's legitimacy by arguing there was “absolutely no evidence whatever” that those who attended the Constitutional Convention and ratified the Constitution anticipated or intended judicial review. The Court, Boudin said, had arrogated that power to give Americans the “government by judiciary” from which they now suffered.Footnote ³¹² The following year, Beard proclaimed that the United States Supreme Court was no “usurper.”Footnote ³¹³ He emphatically contended that the Constitution's Framers intended to give the Court the power to decide the constitutionality of Congressional legislation, and he grandly declared that he laid the “ghost of usurpation” to rest.Footnote ³¹⁴ Moreover, while Beard became a critic of the Fourteenth Amendment's drafters,Footnote ³¹⁵ he early took issue with Holmes's announcement in his Lochner dissent that the amendment did not enact Spencer's Social Statics. “As a matter of fact, however, the Supreme Court of the United States has declared very little social legislation invalid and has been inclined to take a more liberal view of such matters than the supreme courts of the states,” Beard observed.Footnote ³¹⁶

Beard moved from Court to Constitution when he examined the property, bonds, and securities held by those Warren Harding would dub “the founding fathers.”Footnote ³¹⁷ In his 1913 book, An Economic Interpretation of the Constitution of the United States, Beard maintained that the Framers were, “with a few exceptions, immediately, directly, and personally interested in, and derived economic advantages from, the establishment of the new system,”Footnote ³¹⁸ while those living in agricultural regions and/or debtors seeking inflation opposed ratification.Footnote ³¹⁹ Once again, we see progressives’ diverse reactions to the volume. Underlining the point that the Constitution and constitutional interpretation were not one and the same, Thomas Reed Powell predicted Beard's volume would interest historians and political theorists, while constitutional lawyers would ask, so what? “Once the Constitution has become an established fact, its interpretation by the duly constituted authorities will be little influenced by a schedule of the investments of those whose activities secured its adoption or by a knowledge that outside of the ratifying conventions it had more opponents than adherents.”Footnote ³²⁰ (Powell did acknowledge, however, that if Beard had correctly shown that “the Mount Sinai from which the law was secured is …but a little hill,” he provided additional justification for interpreting the Constitution as a living document that changed to suit the needs of later generations.)Footnote ³²¹ Yet Corwin maintained that it was impossible to infer who owned securities in 1787 from the Treasury records of the 1790s from which Beard took his data, and he charged Beard with being “bent on demonstrating the truth of the socialistic theory of economic determinism and class struggle.”Footnote ³²²

At least Corwin and Powell studied the book, which, like The Spirit of American Government, took guts to publish and sent the New York Bar Association into fits of fury.Footnote ³²³ “When my book appeared, it was roundly condemned by conservative Republicans, including ex-President Taft, and praised, with about the same amount of discrimination, by Progressives and others on the left wing,” Beard said later. (Obviously, he discounted the criticism of Corwin, a progressive.) “Perhaps no other book on the Constitution has been more severely criticized, and so little read.”Footnote ³²⁴

Beard subsequently insisted that he had not meant to dishonor the Framers by arguing that they were feathering their nests, or that economics by itself determined the shape of the Constitution. He intended to suggest only that “economic pressures” had a place in the study of history.Footnote ³²⁵ Should we accept Beard's “one explicit disavowal…or follow the many contrary passages interspersed throughout his text,” Richard Hofstadter once asked?Footnote ³²⁶ Do neither, Hofstadter wisely advised, but recognize the “ambiguity” in An Economic Interpretation of the Constitution that reflected the two Charles Beards. There was “Beard the reformer, the moralist, the rebel against authority,” the Progressive muckraker who “strayed into economic reductionism.”Footnote ³²⁷ And there was the Beard of Knightstown, Indiana, “an American patriot who did indeed revere the practical genius of the Founding Fathers and who, in the light of all they accomplished, did not feel that the self-serving side of their work was an unforgiveable flaw or that it should be taken to discredit their statecraft.”Footnote ³²⁸ That same ambivalence characterized many other twentieth-century progressive critics. While they hardly fetishized the Constitution, Court, or judicial power, power, most did not want—and/or dare—to urge their burial, either.Footnote ³²⁹ Even the Progressive Party's 1912 platform treated the United States Supreme Court respectfully and just promoted recall of state court decisions.Footnote ³³⁰

Reasonable people can disagree about the motivations of Beard and his progressive contemporaries. But whatever you decide, The Spirit of American Government may warrant memorialization more than An Economic Interpretation of the Constitution. That was the judgment of historian Gordon Wood, who deserves much of the credit for swinging attention to the Constitution's ideological roots.Footnote ³³¹ “It is obvious by now,” Wood said in 1967, that “Beard's notion that men's property holdings, particularly personalty holdings, determined their ideas and their behavior was so crude that no further time should be spent on it.”Footnote ³³² Yet Wood insisted that “while Beard's interpretation in a narrow sense is undeniably dead”—laid to rest by subsequent historians who provided chapter and verse on its methodological flawsFootnote ³³³—“the general Progressive interpretation represented by Smith is not.”Footnote ³³⁴ In his landmark 1969 book, The Creation of the American Republic, Wood demonstrated his own ability to blend ideology with economic interests when he made the progressive argument that adoption of the Constitution marked the triumph of liberalism over republicanism.Footnote ³³⁵ Wood sounded nearly as skeptical of the Framers as Smith. He charged that “to explain and justify their aristocratic system” and to realize their hopes “for a high-toned government filled with better sorts of people,” the Federalists had seized on “the most popular democratic rhetoric available,” including the argument that the Supreme Court embodied popular sovereignty.Footnote ³³⁶

Despite the case for replacing “Beardian” and “Beardianism” with “Smithian” and “Smithianism,” there are probably too many Smiths to make that feasible. Whatever you label it though, what Saul Cornell calls “the soft version of Beardianism”Footnote ³³⁷ remains vibrant for many historians outside law schools. “A healthy dose of Beardianism seems essential to any sophisticated approach to understanding the original debate over the Constitution's original meaning,” he concludes.Footnote ³³⁸

Not all historians who teach law agree. Revisionist G. Edward White contends that Beard ignored the “ethos of disinterestedness” for public officeholders during the late eighteenth century.Footnote ³³⁹ For White—who like Walton Hamilton fuses Constitution with its interpretation—that makes Economic Interpretation as “anachronistic” in its treatment of the Founding as the approaches of Beard's “Progressive successors.”Footnote ³⁴⁰ All are convinced that “much of the language of the law, which features technical discussions of legal sources that are often unintelligible to persons without legal training, which almost never allude to ‘classes’ or interests,’ and which only rarely detail the short-run political, social or economic consequences of a decision, needs to be ignored or discounted by persons seeking the meaning of legal decisions,” White complains.Footnote ³⁴¹

One need only look as far as his former University of Virginia Law School colleague, Michael Klarman, however, to find skepticism about the “ethos of disinterestedness” and see the endurance of progressive interpretations of the Constitution and the appeal of a harder-edged Beardianism/Smithianism that we also see in the work of historian Woody Holton.Footnote ³⁴² Klarman's 2016 book presents the Founders as anything but disinterested. He portrays the Constitution as “a ‘coup’ against public opinion” that undermined democracy to benefit the Framers, who possessed “a deep distrust of the people.”Footnote ³⁴³ The elite and relatively wealthy “extraordinarily talented”Footnote ³⁴⁴ statesmen who gathered in Philadelphia recognized that the Articles of Confederation were flawedFootnote ³⁴⁵ and feared the tax and debt relief measures that some states had enacted,Footnote ³⁴⁶ he argues. They viewed Shays's Rebellion as “‘truly deplorable’ and ‘distressing indeed.’”Footnote ³⁴⁷ That helped explain why the Constitution proved “so much more nationalist and anti-democratic than the country as a whole.”Footnote ³⁴⁸

Almost everyone involved in the debate over the Constitution “had interests,” along with good intentions,Footnote ³⁴⁹ Klarman concludes. Ratificationists included city dwellers, merchants, and shippers, who benefited from the Constitution's trade provisions and hoped the document would limit inflation. They comprised creditors, who appreciated Article I, Section 10, which prevented states from making paper money and blocked them from impairing contractual obligations by enacting debtor relief laws. And they encompassed government bondholders, who believed that the federal government would assume the states’ war debt at ratification. “Beard was not wrong to claim that government creditors—especially creditors of the federal government—had strong incentives to support ratification,” Klarman insists. He did mistakenly overstate “the extent to which those who drafted and ratified the Constitution held government securities at the time of their actions, as opposed to having purchased them by the time of Secretary of the Treasury Hamilton's funding operation, beginning in 1790.”Footnote ³⁵⁰ Ratificationists did not necessarily behave “solely out of self-interest,”Footnote ³⁵¹ for creditors and government bondholders reasonably believed “government must pay their debts—both as a matter of justice and as a means of maintaining a strong credit rating.”Footnote ³⁵² While it may be easier to prove that class interests determined who supported the Constitution than who opposed it, Klarman also contends that economic considerations may have played a role in explaining why some battled ratification.Footnote ³⁵³ By his account, only groups with religious concerns apparently did not take economic interests into consideration.Footnote ³⁵⁴

As Klarman acknowledges, we cannot be sure of what motivated individual delegates to the Constitutional or ratifying conventions and other participants in the contest. Who knows, for example, Patrick Henry's “real reasons” for objecting so strenuously to the Constitution, “which might have been as trivial as his not participating in its drafting”?Footnote ³⁵⁵ Yet Klarman is sure that the Framers were “seeking to establish an aristocracy of sorts”Footnote ³⁵⁶ and that “it certainly appears as if calculations of material interest were a vitally important factor” for delegates to the ratifying conventions.Footnote ³⁵⁷ And as he stresses, the battle over ratification was so close “the Framers’ coup” might have failed, but for the Federalists’ smart strategizing, good luck, and Anti-Federalist missteps.Footnote ³⁵⁸ Somewhere, J. Allen Smith and Charles Beard must be smiling.

Constitutional Interpretation

Revisionists treat progressive constitutional interpretation much as they do progressive work on the Constitution. They trivialize it, dismiss its variety, shrug off its contemporary vitality, and condemn its presentism. They maintain that progressives cannot understand the past on its own terms and do not recognize that it is “a foreign country.”Footnote ³⁵⁹ Of course, and thankfully, each generation writes its own history. That's what keeps us all employed. Yet while we are doomed to see the past through the lens of the here and now, we also try to understand it on its own terms.

That's why White's assertion that those who do not follow the revisionists anachronistically read their contemporary concerns back onto the late nineteenth- and early twentieth-centuries stings. As we have seen, he prefers characterizing the period from the late nineteenth century to 1920 as an “era of guardian review” in which “the Court established itself …firmly in the role of overseer of the actions of Congress and state legislatures in the guise of protecting individual rights.”Footnote ³⁶⁰ It is impossible “to gain a clear understanding of how the Court was perceived by contemporaries in those years without recognizing that the guardian role for judges was not treated as an invitation for judges to substitute their ideological views for the provisions of the Constitution they were interpreting,” White argues in his 2016 book, Law in American History.Footnote ³⁶¹ “A later generation of scholars, operating at a time when the guardian role for judges had been criticized as jurisprudentially wrongheaded and abandoned, concluded that the vast majority of the Court's justices, between the 1880s and 1930, were in fact equating the Constitution with their personal partisan views, and that in the main those views added up to support for what commentators called ‘laissez-faire conservatism.’”Footnote ³⁶² Yet while late nineteenth and early twentieth century justices understood that they dealt with contested issues, most of them believed that unlike members of Congress and the President, they were not law or policymakers.Footnote ³⁶³ And since the Court's “internal deliberative protocols” at that time discouraged dissent, the guardian stance forged “a space for creative judicial interpretations of the Constitution that could be rendered as straightforward ‘findings’ of the meaning of its provisions to which, in most cases, all the interpreter's judicial colleagues endorsed.”Footnote ³⁶⁴ White rightly observes that those who do not study how late nineteenth and early twentieth century justices conceived their role and discussed legal doctrine overlook an important part of the picture.

Yet a late twentieth-century progressive like Barry Friedman might respond that White and the revisionists minimize the “overwhelming contemporary commentary that outright accused the judges of importing their biases into law” and privileging elites.Footnote ³⁶⁵ For example, White mentions the 1896 election only to assure the reader that Knight did not play a role in it because contemporaries did not view it as “a blatantly ‘pro-trust’ decision.”Footnote ³⁶⁶ He suggests that only those from subsequent generations found fault with the justices because they were superimposing their own views on the past. And he downplays the growth of dissents during this period and how the justices themselves sometimes portrayed their colleagues as conservatives in them—(which, of course, is not to say that the dissenters always fairly characterized majorities).

Unlike White, Melvin Urofsky maintains that dissents took on significance after the Civil War. Justices Stephen Field and Joseph Bradley's Slaughterhouse dissents became the first important ones “in that they not only pointed out the alleged errors of the majority but also laid out the map by which future justices could get it right.”Footnote ³⁶⁷ Even if they had not yet become commonplace, dissents in just one case could cause a lot of litigation. Because of the 5–4 division in Slaughterhouse, lawyers returned repeatedly “to ask the Supreme Court to intervene against state regulation of business.”Footnote ³⁶⁸ Moreover, Field, who joined the Court in 1863, “never hesitated to dissent if he could not win over his colleagues by persuasion,”Footnote ³⁶⁹ and did so 220 times in his three and a half decades on the Court.Footnote ³⁷⁰ Then in 1877, President Hayes appointed John Marshall Harlan, whom Urofsky terms the Court's “first great dissenter.”Footnote ³⁷¹

Consequently, many during the late nineteenth century took notice of the growing prominence of dissents at the Court. Hunter Smith has demonstrated that legal commentators were frequently wringing their hands over dissents by the 1880s and that “[v]irtually all the major American legal periodicals engaged in a heated exchange of editorials over the propriety of dissenting opinions, with the exchange reaching a crescendo from 1898 to 1906”Footnote ³⁷²—doubtless at least in part because “the court most in the nation's eye, the federal Supreme Court, handed down a series of five-to-four decisions during this period, with particularly scathing dissenting opinions.”Footnote ³⁷³ Dissents did not just underline the indeterminacy of law,Footnote ³⁷⁴ then, but sometimes the justices’ dim views of each other as well. Thus, for example, we see Harlan cautioning that the majority endangered democracy in Pollock,Footnote ³⁷⁵ with Justice Henry Billings Brown chiming in that it had surrendered “the taxing power to the moneyed class.”Footnote ³⁷⁶

Outside the Court, one did not need to look far to see dissatisfaction with its majority, either. Consider the lament of the American Law Review’s reform-minded editor, Seymour Thompson that in his 1892 dissent in Budd v. New York,Footnote ³⁷⁷ Justice Brewer, “like some of his associates,” apparently harbored “the hallucination that he is a legislator instead of being merely a judge” when he attacked the government's “odious” paternalism. “He was not put there to decide constitutional questions according to his whims, or according to what was or was not odious to him personally,” Thompson retorted.Footnote ³⁷⁸ Arnold Paul showed that the question of whether Justice George Shiras changed his mind in the second income tax decision “provoked a storm of controversy in the public press.”Footnote ³⁷⁹ Though Knight did not loom large in the 1896 election, the Democratic platform that year condemned the Court's income tax decision and, like the Populist platform,Footnote ³⁸⁰ “especially” objected to cases like Debs that made “government by injunction…a new and highly dangerous form of oppression by which Federal Judges in contempt of the laws of the States and the rights of citizens, become at once legislators, judges, and executioners”Footnote ³⁸¹—not that it did the Democrats and Populists any good.Footnote ³⁸² “There is danger that the people will…see their enrobed judges doing their thinking on the side of the rich and powerful; see them look with solemn cynicism upon the sufferings of the masses, nor heed the earthquake when it begins to rock beneath their feet; see them present a spectacle not unlike that of Nero fiddling while Rome burns,” Thompson warned his fellow professionals in 1896. In that case, “the furies will then break loose.”Footnote ³⁸³

As William Ross,Footnote ³⁸⁴ Barry Friedman,Footnote ³⁸⁵ Paul Kens,Footnote ³⁸⁶ and William WiecekFootnote ³⁸⁷ have shown, the anger about individual decisions among some Court detractors during the 1890s morphed into something different in the twentieth century. Its first decade witnessed a drumbeat of scholarly and popular criticism of the Court that frequently included demands for the restriction of judicial power.Footnote ³⁸⁸ In these early twentieth-century debates, some progressive legal scholars, like Gilbert Roe,Footnote ³⁸⁹ Gustavus Myers,Footnote ³⁹⁰ and even Charles Grove Haines,Footnote ³⁹¹ joined J. Allen Smith in leaving the impression that late nineteenth- and early twentieth-century opinions were “cant” as they engaged in what Max Lerner was later to call “a too mechanical economic interpretation of the Court.Footnote ³⁹² Their progressive successors in the 1920s and 1930s could also sound shrill—or, White would say, “exposing” and “accusing”—as they battled judicial “apologists.”Footnote ³⁹³

In his two volumes on Government by Judiciary, for example, Boudin maintained that while citizens could easily understand the work of legislatures, which operated in sunlight and straightforwardly, the courts did “their work in the seclusion of a courtroom, protected by a smoke-screen of technical jargon which is utterly unintelligible to the ordinary citizen,” and often attacked problems “indirectly and in a manner to obscure the real issues involved.”Footnote ³⁹⁴ Moreover, the members of the Supreme Court, or “the American House of Lords,”Footnote ³⁹⁵ who gave Americans “Government by a Few Conservative Men,”Footnote ³⁹⁶ privileged property over liberty.Footnote ³⁹⁷ They obviously knew that “constitutional principles, and even rules, do not count for much, but decisions often do.”Footnote ³⁹⁸ Yet Boudin had limits beyond which he would not go: Like Walton Hamilton,Footnote ³⁹⁹ he challenged the “’conspiracy theory’ of the Fourteenth Amendment”Footnote ⁴⁰⁰ circulated by Charles and Mary Beard in their widely read 1927 history of the United States,Footnote ⁴⁰¹ which had its framers sneaking a “capitalist joker” into the Constitution to enable the Court to protect big business.Footnote ⁴⁰²

And in any event, it is wrong to reduce the progressive legal commentators to Louis Boudin or Gustavus Myers, since other “progressives” played very different roles. Edward Corwin, the giant of progressive legal historiography, did not treat judicial opinions as “cant.” Nearly seven decades before the revisionists, he made the point that “the concept of ‘class legislation’” was “one of the central canons of present day interpretation of the Fourteenth Amendment.”Footnote ⁴⁰³ Meanwhile, Thomas Reed Powell dissected the Court's opinions “with a scalpel, neatly disemboweling” them via doctrinal analysis.Footnote ⁴⁰⁴ Zechariah Chafee infused Holmes's “clear and present danger” test with a libertarianism that the justice may not have originally intended,Footnote ⁴⁰⁵ but which his ambition to be remembered as a “combination of Justinian, Jesus Christ, and John Marshall”Footnote ⁴⁰⁶—as Holmes joked—helped make attractive.Footnote ⁴⁰⁷ Some progressives, like the University of Wisconsin's Ray BrownFootnote ⁴⁰⁸ and the University of Chicago's Ernst Freund,Footnote ⁴⁰⁹ justified the growth of the administrative state by exploring the police power. Jane Addams herself characterized Freund “as the finest exponent in all Chicago of the conviction that as our sense of justice widens it must be applied to new areas of human relations or it will become stifled and corrupt.”Footnote ⁴¹⁰ Unlike the revisionists, who look back to Andrew Jackson, Freund was looking beyond the borders of the United States and thinking transnationally.Footnote ⁴¹¹ Other progressives, like Roscoe Pound,Footnote ⁴¹² Louis Brandeis,Footnote ⁴¹³ and Felix Frankfurter,Footnote ⁴¹⁴ called for the replacement of what we now call classical legal thought by a sociological jurisprudence that treated law as a potential tool of reform.Footnote ⁴¹⁵ They exhorted members of the legal profession “not [to] become legal monks”Footnote ⁴¹⁶ and to integrate law with the social sciences—if not, alas, with history.Footnote ⁴¹⁷

Some progressive scholars joined Beard in emphasizing, as I hope I made clear at my orals, that the Court did not unblinkingly fight reform.Footnote ⁴¹⁸ That was a point their post-World War II successors made as well. Robert McCloskey compared the Supreme Court's position in 1900 to “that of a knight-bachelor on the morning after his accolade,” who received his sword and spurs and contemplated venturing out into the waiting world. “Will the chevalier at once launch an intrepid campaign to slay all the dragons of ‘socialism’ and rescue all the maidens of ‘free enterprise’?” Instead of choosing one course over the other, McCloskey insisted, “The Court established a kind of dialectic involving both of them and managed to live in this in this apparently uneasy state for the next thirty-odd years,” and the chevalier generally “conducted himself with reasonable modesty and decorum.”Footnote ⁴¹⁹

The Contribution of Biography

For much of the twentieth century, those working in the progressive tradition produced, too, enlightening biographies and sketches of the justices that made their life experience relevant to understanding their work,Footnote ⁴²⁰ while stressing that “[t]he average Supreme Court justice… takes his constitutional theory very seriously.”Footnote ⁴²¹ Progressives introduced serious judicial biography with all its weaknesses and strengths to the United States. Think of the four-volume Pulitzer Prize winning biography of John Marshall by former Senator Albert Beveridge after his 1912 defeat extolling Marshall and shredding Jefferson.Footnote ⁴²² To be sure, you will be reminded that biographers too often read their own experiences into those of their subjectsFootnote ⁴²³ and that judicial biography is too often hagiography.Footnote ⁴²⁴ But even Andrew McLaughlin, a critic of the hero worship, admitted that Beveridge was a tireless researcher.Footnote ⁴²⁵

The books and articles progressives wrote often drew on extensive work, recently discovered correspondence and other archival finds that otherwise might have disappeared,Footnote ⁴²⁶ and that seemed “revolutionary…in their day.”Footnote ⁴²⁷ They showed how overworked the justices were after the Civil War, their political aspirations, and their struggles and successes with the colleagues, friends, and acquaintances who tried to influence them. To mention but a few examples, we watch Justice Samuel Miller providing his brother-in-law, William Ballinger, with previews of how the Court had decided cases that Ballinger argued before it,Footnote ⁴²⁸ and complaining, in 1875, “I can't make a great Chief Justice out of a small man. I can't make Clifford and Swayne, who are too old resign, nor keep the Chief Justice from giving them cases to write opinions in which their garrulity is often mixed with mischief.”Footnote ⁴²⁹ We see Joseph Bradley, “a black-letter man and former railroad lawyer”Footnote ⁴³⁰ who knew all the his former clients’ tricks,Footnote ⁴³¹ and one whose “mind dwelt congenially with the historians, the moral philosophers, the great civilians, the sages of the common law,”Footnote ⁴³² fortuitously going “so far afield [as] to lug Lord Hale” into Munn v. Illinois,Footnote ⁴³³ and winning over Chief Justice Waite to the permissibility of regulating “business affected with the public interest.”Footnote ⁴³⁴ We witness President Garfield succumbing to railroad lawyers’ blackmail and securing campaign contributions by pledging to nominate justices that will satisfy them.Footnote ⁴³⁵ We hear of the Presidential ambitions of Miller, Chief Justice Salmon Chase, Justice David Davis, and Justice Stephen Field.Footnote ⁴³⁶

Biography proves especially intriguing in Field's case. We learn of his 1884 plan, should he become President, to pack the Court with up to an additional twelve justices who were “able and conservative men and thus [would] have brought back the decisions of the Court to that line from which they should not have departed.”Footnote ⁴³⁷ (Field's motivation will doubtless remain much debated. Perhaps he tailored his argument for his audience, and we should not pay much attention to the “conservative” justices he spoke of wanting in 1884 and the “liberal” ones he promoted to Cleveland in 1893.) We watch the railroads counting on Field,Footnote ⁴³⁸ and some anxious soul “carefully” destroying “letters showing his close personal relationship” with railroad titans like Leland Stanford and Collis Huntington.Footnote ⁴³⁹

Biography also provides a lens on Field's colleagues. We listen to his nephew, Justice Brewer, complaining at Yale's commencement that private property is besieged and warning graduates that the police power “is the refuge of timid judges to escape the obligations of denouncing a wrong.”Footnote ⁴⁴⁰ We hear Justice Harlan, whom Alan Westin tried to make into a “premature New Dealer” before Westin himself admitted defeat,Footnote ⁴⁴¹ in unbuttoned conversation with Columbian University law students. After “cutting off a generous slice of Kentucky's best [tobacco or, as I prefer to imagine, bourbon, but not ham] and tucking it comfortably into one cheek,” Harlan remarked, “I want to say to you young gentlemen that if we’—meaning the Court—‘don't like an act of Congress, we don't have much trouble to find grounds for declaring it unconstitutional.’”Footnote ⁴⁴² I agree with Corwin that we should “thank Justice Harlan for his genial brutality.”Footnote ⁴⁴³

Obviously, neither biographies nor extrajudicial utterances necessarily explain judicial voting behavior, any more than Justice Brewer's birth in Asia Minor determined his sympathy for the Chinese and the Protestantism of his missionary parents caused his judicial conservatism.Footnote ⁴⁴⁴ And like most of us, those mining the progressive vein viewed their subjects through the prism of their own concerns, which is why they told us so little about, say, the Waite and Fuller Court's approaches to, say, civil rights.Footnote ⁴⁴⁵

Nor do progressive biographies enable us to identify the “great” justices, since, Linda Przybyszewski reminds us, those judgments are time-bound.Footnote ⁴⁴⁶ Progressive scholars venerated Holmes, to whose memory Arnold Paul dedicated Conservative Crisis and the Rule of Law,Footnote ⁴⁴⁷ and they often championed judicial restraint. When their liberal descendants witnessed how the Warren Court transformed the legal landscape with Brown v. Board of Education and other decisions,Footnote ⁴⁴⁸ many became judicial activists—or, at least, fans of the Warren Court,Footnote ⁴⁴⁹ and they even clasped the ill-reasoned Roe v. Wade in a reluctant embrace.Footnote ⁴⁵⁰ But they disparaged Lochner,Footnote ⁴⁵¹ and even conservatives long assumed Lochner had a noxious odor.Footnote ⁴⁵²

Attitudes changed later. Those left of center recoiled from the conservative activism of the Rehnquist and Roberts Courts. The idea of a heroic justice took a giant hit among liberals and the left. It was no accident that when the millennium arrived, some liberal (or as they now frequently preferred to style themselves, progressive!) academic lawyers like Cass Sunstein, Richard Parker, Larry Kramer, Robert Post, and Reva Siegel were distancing themselves from legal liberalism, and instead championing judicial minimalism;Footnote ⁴⁵³ popular constitutionalism;Footnote ⁴⁵⁴ and, somewhat more optimistically, democratic constitutionalism.Footnote ⁴⁵⁵ For at just that time, Thomas Colby and Peter Smith noted, some conservatives were abandoning their defensiveness about Lochner and substantive due process.Footnote ⁴⁵⁶ They were beginning to argue that thanks to the Framers, the Constitution's text “embraces unenumerated economic rights”Footnote ⁴⁵⁷ that courts should robustly protect.Footnote ⁴⁵⁸

Like everything else, then, judgments of the ideal justice are contingent and are in the eyes (and politics) of the beholder. But scholars working in the progressive tradition did give us one window on the justices’ world. At the very least, they remind us how much distance separates it from our own contemporary one in which the Court's members are expected to have prior judicial experience and to have attended law school at Harvard and Yale.Footnote ⁴⁵⁹ Moreover, the progressive tradition remains very much alive.

The Vitality, Persistence and Timeliness of Progressive Scholarship

Perhaps, as revisionists say, the “progressives” could have written about more decisions than they did, though if that is correct, it might be because some cases seemed more important when they were handed down than others.Footnote ⁴⁶⁰ Still, the 1985 revisionist claim that progressive legal scholars simply followed the path “from Slaughterhouse and Munn to Lochner, by way of the Mississippi and Minnesota Rate Cases, Smyth v. Ames, and Allgeyer v. Louisiana” was an exaggeration.Footnote ⁴⁶¹ In any event, even if revisionists got it right in 1985, Wiecek's 1998 book, The Lost World of Classical Legal Thought, written to “reaffirm the enduring insights of the neo-Progressives while incorporating valid elements of the revisionist critique,” admirably and insightfully examines lots of cases.Footnote ⁴⁶²

Others beside Wiecek refuse to relinquish the progressive critique. As we have seen, Paul Kens,Footnote ⁴⁶³ and Barry FriedmanFootnote ⁴⁶⁴ have also plugged their fingers into the dike. It may be leaking, but it is not breached.

Further, outside legal history, Americanists haven't gotten the message about the overthrow of the progressive view. In Standing at Armageddon, Rebirth of a Nation, American Colossus, and The Moneyed Metropolis, Nell Painter, Jackson Lears, H.W. Brands, and Sven Beckert make the Supreme Court the servant of big business.Footnote ⁴⁶⁵ In Richard White's Railroaded: The Transcontinentals and the Making of Modern America, Justice Field did the railroads’ bidding until he “grew more cautious.”Footnote ⁴⁶⁶ Labor historian Nelson Lichtenstein writes of “the intrusive anti-labor judicial policy making characteristic of the early Lochner era.”Footnote ⁴⁶⁷ And in their influential reinterpretation of American history for undergraduates, Glenda Gilmore and Thomas Sugrue insist, “When politicians did propose mild business regulation [during the late nineteenth century], the conservative Supreme Court thwarted them.”Footnote ⁴⁶⁸

If progressive legal historiography were as simple-minded as the revisionists suggest, its vitality would be irrelevant. We would just want it gone. But first, I hope I have shown that progressive legal historiography is not simple-minded. Second, for “progressives” and “conservatives” alike, the history of this period suddenly seems relevant. Given the nature of the Executive Branch and the skill of Republicans at gerrymandering legislative districts, progressives can only hope to exert influence in the judiciary until President Trump fills all his judicial vacancies and future elections occur.Footnote ⁴⁶⁹ That may not be saying much, if you are a progressive, but it is saying something. Yet, contemporary conservatives worried about the dysfunctionalism of Congress and/or the Executive Branch also have reason to see the federal courts as a potential shield, just as they did during the late nineteenth and early twentieth centuries. (Revisionists and progressives would at least agree, I wager, that justly or unjustly, most conservative onlookers did then view the federal courts as their redeemers).Footnote ⁴⁷⁰ The courts, in short, are up for grabs, and crisis times often spark a renewal of historical debate. Third, and most importantly, because of our shared interest in the past, legal scholars, historians, political scientists, and judicial actors will benefit from hearing a vigorous disagreement over what all legal historians, whatever their politics and attitude toward doctrine, have to say about the late nineteenth and early twentieth centuries.

So what to do? One possibility is to look to political science for inspiration in exploring how to blend progressive legal historiography and revisionism. The attitudinalists/behaviorists who dominated the constitutional law subfield of political science, beginning in the 1940s, used quantitative data and modeling to portray the Supreme Court as autonomous and as a place where individual judges’ policy preferences, not law, explained outcomes.Footnote ⁴⁷¹ As attitudinalists Jeffrey Segal and Harold Spaeth summed it up in 2002, “Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he does because he was extremely liberal.”Footnote ⁴⁷² While attitudinalists could predict judicial behavior, even law professors associated with the “law is politics” view of critical legal studies accused “the vote-counters” of “unbearable simple-mindedness” and of ignoring “the richness of the system of legal rules and institutions.”Footnote ⁴⁷³

In the past twenty-five years, “new institutionalists” in political science have begun “bringing the law back in.”Footnote ⁴⁷⁴ While recognizing that “no serious student of judicial behavior can now doubt that attitudes make a difference to judicial decision-making,”Footnote ⁴⁷⁵ the new institutionalists stress the Court's concern with its institutional integrity, its need to legitimate and justify its behavior, and the significance of ideology to understanding it, and situate the distinctive story of the Court in the context of “regime politics” and its own role and relationship to other branches of government.Footnote ⁴⁷⁶ They call for research that brings together biography, law, ideology, politics, and policy choice to make Supreme Court decision-making part of a constitutive process. (Though the most prominent new institutionalist to study the Court in the late nineteenth and early twentieth centuries, Howard Gillman, has thrown his lot in with the revisionists, perhaps not all new institutionalists will.) Footnote ⁴⁷⁷ Maybe legal historians beyond William Wiecek might give post-revisionism a look.

Conclusion: “Many brave men lived before Agamemnon”

Like the revisionists, Horace's Agamemnon fought courageously. But he was not the first valiant warrior, and neither are the revisionists. The “progressives” also showed bravery. It can't have been easy for J. Allen Smith to open up the Seattle Times and to read attacks by lions of the local bar. Perhaps Charles Beard relished William Howard Taft's criticism of An Economic Interpretation of the Constitution. How many of us get that much attention? But again, it can't have been pleasant when Columbia's trustees called Beard on the carpet in 1916, “’grilled’” him about his beliefs and how he imparted them, then directed him to warn his departmental colleagues against teaching material “likely to inculcate disrespect for American institutions.”Footnote ⁴⁷⁸ Angered that “certain of the trustees” refused to promote a colleague “because he had used ‘disrespectful language’ in speaking of the Supreme Court,” Beard became increasingly anxious about the university's effort “to take advantage of the state of war to drive out or humiliate or terrorize every man who held progressive, liberal, or unconventional views on political matters in no way connected with the war.”Footnote ⁴⁷⁹ He resigned from Columbia in 1917 to protest its abridgment of academic freedom. While he landed on his feet at the New School and became the President of both the American Historical Association and the American Political Science Association, he lost the day-to-day stimulation of the Columbia intellectual community that had meant so much to his scholarship.Footnote ⁴⁸⁰ Meanwhile, Frankfurter and Pound suffered from what Pound called Harvard's “general crusade here against all things liberal,”Footnote ⁴⁸¹ while Chafee was almost dismissed from its law faculty.Footnote ⁴⁸² To progressives during the opening decades of the twentieth century, it must have sometimes seemed that the same elites that they believed dominated the Court controlled the universities.

In Horace's Odes, those who preceded Agamemnon lacked a muse to praise them: “Many brave men were living before Agamemnon's time; but all are overwhelmed in eternal night, unwept, unknown, because they lack a sacred poet.”Footnote ⁴⁸³ Unlike those forgotten souls, though, Smith, Beard, and their progressive contemporaries and heirs still possess defenders—though we might not describe ourselves as “sacred poets.” So why should the revisionists lampoon progressive approaches to the Constitution and constitutional interpretation? Perhaps they think that present-day progressives incorporate just enough of revisionist insights in our own work so we can keep the “Progressive Orthodoxy” from completely “crumbling.”Footnote ⁴⁸⁴ But if that's our game, why shouldn't the revisionists play it too? It is time to start working toward a synthesis that transcends revisionism and progressivism. Revisionists could contribute to that endeavor by finding something good to say about decades of progressive scholarship. Even if they cannot, others outside of legal history do.

The revisionists may also have declared victory too soon. Perhaps elements of the progressive interpretation that I obligingly parroted for my examiners nearly forty years ago retain their usefulness for legal historians. Perhaps they remain so deeply rooted because they possess value. Why isn't it possible that late nineteenth and early twentieth century justices and judges cared--to varying degrees, depending on the individual and specific case involved--about doctrine and interests, law and politics? Perhaps while some progressives could have taken legal doctrine more seriously, some revisionists have come too close to reading political calculation and economic interest out of our understanding of the Constitution and constitutional interpretation. Perhaps we could work toward a post-revisionist synthesis. Can't we all get along?