CONSTITUTION BESIEGED is a fascinating and intelligent analysis of Supreme Court jurisprudence from the Civil War until the second New Deal cases of 1937. Gillman provides fresh appraisal of what has become known as the Court's LOCHNER Era opinions. In these decisions, following upon Justice Holmes' dissent in LOCHNER V. NEW YORK, many believe that the Court was pronouncing a series of cases "decided upon an economic theory which a large part of the country does not entertain," i.e., laissez faire economics. Yet instead of arguing that the Waite through Hughes Courts were motivated by simple appeals to a specific free market ideology, the book connects the logic of decisions like LOCHNER to an overall fear of factions and special legislation that would benefit a specific class or group. In short, the book ties Supreme Court decisions during the LOCHNER Era to earlier police power jurisprudence which emphasized political neutrality and unbiased legislative decision making.
Gillman's book opens by reviewing the scholarship that has examined and sought to explain LOCHNER Era cases. In part to set the historical record straight and to show deficiencies of many interpretations of the Court's decisions during this era, the author reminds us of Charles Warren's research demonstrating that 557 of the 560 state laws challenged under the Fourteenth Amendment's due process or equal protection clauses were upheld (p. 4). This point alone should be enough to make it difficult to sustain claims that the Court was engaged in significant judicial activism to strike down laws that regulate the economy or public welfare. However, the purpose of this introduction is to raise a series of questions explaining the Court's generally sympathetic deference to legislative decision making when it came to regulatory legislation, while at the same time the Court was particularly hostile laws setting minimum wages and maximum hours. How did the Court distinguish between valid and invalid economic legislation?
Gillman's thesis to clarify these distinctions is presented on page 10 where he argues:
... the decisions and opinions that emerged from state and federal courts during the LOCHNER era represented 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.
The nineteenth-century distinction Gillman is most concerned with grew out the Jacksonian Era. It specified that the courts would uphold legislation if it promoted a "true" public purpose and not simply supported special, partial, or specific class interests (p. 10). We can understand LOCHNER Era jurisprudence, then, as an effort to adjudicate economic legislation based on whether or not the Court felt that the laws were the product of valid enactments for the public good or simply the product of pressure politics meant to favor a particular class or interest. Laws doing the latter, including LOCHNER, were invalidated.
Chapters one through three provide solid review of constitutional law and doctrine leading up to the LOCHNER decisions. Here Gillman discusses FEDERALIST PAPERS numbers 10 and 51, showing how Madison's discussion of faction and the need to establish legislative neutrality became a standard constitutional principle of the nineteenth-century. For judges in the Jacksonian period, Madison and the Constitution were read as prohibiting special legislation favoring a particular class or group because it was presumed to be the result of factional politics. The Jacksonian Era judicial response was to forge a notion of police power adjudication which discriminated between
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legislation promoting the public welfare versus that which sought to adjust market relations to favor a particular class (p. 145). The Court opposed any legislation which supported a particular class unless general benefits could also be obtained (p. 103).
This neutral vision of the state opposed to class legislation rested upon an image of autonomous and self- sufficient people operating freely in the marketplace. Moreover, this vision of human nature, the neutral state, and the police power doctrines that grew out of both remained viable until after the Civil War when the emergence of industrial capitalism challenged the continued viability of a vision of workers as autonomous and self-sufficient (p. 159). At this point, changes in the market, emergence of large trusts, and the increasing recognition that some individuals were placed in a vulnerable economic position forced a rethinking of legislative behavior as well as a crisis in constitutional doctrine. According to Gillman:
...the crisis in American constitutionalism that arose around the turn of the century becomes a story not of the sudden corruption of the law and judicial function, but rather of how the judiciary's struggle to maintain the coherence and integrity of a constitutional jurisprudence ultimately was derailed by the maturation of capitalist forms of production and the unprecedented efforts of legislatures to extend special protections to groups that considered themselves vulnerable to increasingly coercive market mechanisms (pp. 9-10).
In short, the crisis of constitutional doctrine during the LOCHNER Era and up to 1937 was the refusal of the Court to accommodate its jurisprudence to the forces of industrialization that rendered invalid the old assumptions about a neutral market of autonomous individuals. How, when faced with legislative responses to industrialization, was the Court to respond? For Gillman, the Court tried unsuccessfully to continue to apply the old neutral police power jurisprudence and it struck down certain types of laws when it believed that they were the product of factional politics supportive of a particular class or interest. Thus, LOCHNER, as well as other types of economic regulation, especially those mandating minimum wages or hours of employment (p. 158) were singled out at especially troublesome for the Court. It was over these types of cases that the real test of public purpose was fought. Eventually, for Gillman, upholding minimum wage laws in WEST COAST HOTEL V. PARRISH (1937), as well as the dicta in footnote four of CAROLENE PRODUCTS V. UNITED STATES (1937), were recognition of the dismantling of most of the basic principles of LOCHNER Era jurisprudence and the nineteenth- century legal ideology that supported it.
Gillman's conclusions address the relationships between legal ideology and political power. He seeks to demonstrate how judges can fashion an apparent neutral constitutional ideology out of certain visions of the market and political power. Also, in explicit reference to contemporary conservative control of the judiciary, Gillman hopes that the unmasking of LOCHNER Era assumptions should prevent these cases from currently being used as a weapon to defeat economic regulation (p. 205). By showing that LOCHNER does not stand for what conservatives think, he hopes to remove any precedent some may have to use the judiciary to support economic laissez-faire today.
There is much to praise in Gillman's book. Forcing political scientists to rethink what the LOCHNER Era really represented is the most important contribution of this book. Second, efforts to connect Waite through Hughes Court police power decisions to Madisonian conceptions of factions and republicanism are provocative and suggestive of recent scholarship by William Nelson and Cass Sunstein. Moreover, Gillman's efforts to stress facial neutrality in constitutional theory, as well as the fear of class politics in LOCHNER jurisprudence, might, as he hopes, delegitimize one
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contemporary conservative trend in law. Yet it definitely adds historical support and precedent to public choice theories of judicial politics which fear the distortions of legislative policy making.
Hence, the book's conclusions might damage claims of some recent economic conservatives arguing for reinvigoration of economic due process, but others like Justice Scalia might find support for their attack on legislative history and politics by reading Gillman. In effect, the motivations and rational for LOCHNER jurisprudence might not support a conservative jurisprudence, but the logic and holdings regarding class politics might do that nonetheless.
Manipulating LOCHNER jurisprudence ideology gets to two important criticisms or questions regarding CONSTITUTIONAL BESIEGED. First, to what extent did the courts in the nineteenth-century use an apparent neutral legal ideology to mask policy preferences, versus to what extent was the ideology so intertwined with other assumptions about power, politics, and the market that the Justices did not realize the biases in their jurisprudence? Gillman appears to argue the latter position, hence painting many of the "conservatives" on the Court as facially neutral. Yet Gillman's claim may be overstated. For example, the LOCHNER judiciary was also the same one that was hostile to civil rights legislation for emancipated slaves, voting rights for women, child labor legislation, income tax, and federal Commerce Clause regulation. All of these decisions suggest more of an explicit political ideology at stake than Gillman seems to suggest.
What we see in these cases and others are uses of the Commerce Clause, Eminent Domain Clause, and Tenth Amendment to articulate a particular vision of the American state and economy. In short, a second criticism of the book is that police power jurisprudence must be looked at in the context of decisions in several other areas of law to see if they are part of a larger legal ideology that Gillman asserts.
Perhaps Gillman's claims about police power jurisprudence and fear of class based legislation might be able to explain these decisions. But there is a possibility either that the ideology Gillman describes was used to support property rights for reasons more akin to traditional understandings LOCHNER assumptions than he asserts, or a different ideology was invoked. Were Gillman to examine the police power in the context of many other legal principles, the claims he makes about neutrality, power, and legal ideology might need to be altered or modified.
Despite these criticisms, CONSTITUTION BESIEGED is an excellent example of recent trends to revise and appraise the meaning of LOCHNER Era decisions. This book is must reading for all interested in constitutional law and its relationship to politics and the economy.
