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The Long Life of Liberal America: Law and State-Building in the U.S. and England

Published online by Cambridge University Press:  18 August 2010

William E. Forbath
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Extract

Reports of the Strange Death of Liberal America are greatly exaggerated. James Henretta's essay of that title offers a shrewd and insightful portrait of Charles Evans Hughes. But the liberalism whose death Henretta reports did not die. And the “statist,” “centralization,” “economic planning,” and broad “social insurance” minded liberalism he reports as prevailing did not prevail. From a certain lofty altitude (and rueful attitude), all “big,” “modern” “welfare states” look the same. That is Henretta's viewpoint. His wonderfully suggestive comparative framework has as one of its premises that America and England proceeded along the administrative-and-welfare-state-building path at different paces but arrived at the same destination. For me, a comparison of the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England prompts different conclusions. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by that ambivalent (and lawyerly) brand of American liberalism Henretta rightly attributes to figures such as Hughes and Roscoe Pound—poised between “progressive” commitments to social reform, social provision, and administrative-state-building, on the one hand, and older, “classical” liberal commitments to limited (and decentralized, dual federalist) government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. My notion is that this “transitional” and “forgotten” liberalism and its champions won more important battles than they lost against their “statist” rivals. A “strange death,” indeed!

Type
Forum: Comment
Information
Law and History Review , Volume 24 , Issue 1 , Spring 2006 , pp. 179 - 192
Copyright
Copyright © the Board of Trustees of the University of Illinois 2006

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References

1. Barry Cushman has documented how the Social Security Act and other key New Deal programs from 1935 onward were drafted “in consultation” with the Hughes Court (i.e., with detailed attention to the signals, suggestions, and caveats to Congress contained in opinions, particularly Hughes's own). Cushman also finds evidence that Hughes privately expressed a sense of personal and institutional vindication about the process. SeeCushman, Barry, “The Hughes Court and Constitutional Consultation,” Journal of Supreme Court History (1998): 79CrossRefGoogle Scholar.

2. Also emblematic are Blaisdell (1934), which shows Hughes's combination of care and aplomb in upholding redistributive legislation in the face of the Constitution's plainest anti-redistributive provision, and, finally such prophetic opinions as McCabe v. Atchinson, Topeka, and Santa Fe Road (1914), Near v. Minnesota (1931), Norris v. Alabama (1935), and Gaines v. Missouri ex rel Canada (1938). In them Hughes fashioned from old liberal fabric precedent for the post-New Deal era of “modern liberal” judicial activism.

3. See Marshall, T. H., Citizenship and Social Class (Cambridge: Cambridge University Press, 1950).Google Scholar

4. Ibid., 78.

5. There is a significant body of work criticizing Marshall's evolutionary scheme. It is not relevant to my purposes here.

6. Social security (contributory old-age insurance) is the exception. But we view social security as a “right” rather than a dole, because we see it as earned, although, in fact, it has been a redistributive program.

7. See Kagan, Robert A., Adversarial Legalism: The American Way of Law (Cambridge: Harvard University Press, 2003).Google Scholar

8. Sunstein, Cass, “Constitutionalism after the New Deal,” Harvard Law Review 101 (1987): 421, 426.CrossRefGoogle Scholar

9. See Rodgers, Daniel T., Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Belknap Press of Harvard University, 2000).Google Scholar

10. Witt, John Fabian, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge: Harvard University Press, 2004).Google Scholar

11. Elsewhere, I've discussed at much greater length the comparative fortunes in England and America of other shared solutions to the social question: protective labor legislation and legislative efforts to repeal the harshly restrictive judge-made law regulating union organizing, strikes, and boycotts. SeeForbath, William E., “Labor and the Courts in England and America,” Labor Law in America: Historical and Critical Essays, ed. Tomlins, Christopher L. and King, Andrew J. (Baltimore: Johns Hopkins University Press, 1992)Google Scholar.

12. Witt, , Accidental Republic, 148–49.Google Scholar

13. Ibid., 149.

14. Forbath, “Labor and the Courts in England and America.”

15. Witt, , Accidental Republic, 137–38.Google Scholar

16. Ibid., 150–51.

17. Forbath, , “Labor and the Courts in England and America,” 182.Google Scholar

18. Witt, , Accidental Republic, 180–81.Google Scholar

19. Taft, William Howard, “The Right of Private Property,” Michigan Law Review 3 (1904): 215, 218–19.Google Scholar

20. See Forbath, “Labor and the Courts in England and America.”

21. Ibid.

22. See Cushman, “The Hughes Court and Constitutional Consultation”;Alt-meyer, Arthur J., The Formative Years of Social Security (Madison: University of Wisconsin Press, 1966), 14–15, 19–21Google Scholar; Witte, Edwin E., The Development of the Social Security Act (Madison: University of Wisconsin Press, 1962), 100Google Scholar.

23. See Klein, Jennifer, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State (Princeton: Princeton University Press, 2003)Google Scholar; Hacker, Jacob S., The Divided Welfare State: The Battle over Public and Private Social Benefits in the United States (New York: Cambridge University Press, 2002)CrossRefGoogle Scholar.

24. For a closer examination of this history, seeForbath, William E., “Caste, Class and Equal Citizenship,” Michigan Law Review 98 (1999): 1CrossRefGoogle Scholar.

25. See Forbath, William E., “The New Deal Constitution in Exile,” Duke Law Journal 51 (2001): 165.CrossRefGoogle Scholar

26. A.B.A. Annual Report 59 (1934): 539, 549.Google Scholar

27. Horwitz, Morton, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 214.Google Scholar

28. [Pound, Roscoe,] “Report of the Special Committee on Administrative Law,” A.B.A. Annual Report 63 (1938): 331, 343.Google Scholar

29. See, e.g.,Morgan v. United States, 298 U.S.468 (1936)Google Scholar; Ford Motor Co. v. NLRB, 305 U.S.364 (1939)Google Scholar.

30. See, e.g.,Crowell v. Benson, 285 U.S.22, 57 (1932)Google Scholar(declaring that denying trial de novo on jurisdictional or “constitutional” facts would be “to establish a government of a bureaucratic character alien to our system”);St. Joseph Stockyards v. United States, 298 U.S.38 (1936)Google Scholar(requiring trial de novo). Once FDR's nominees reached the court, Hughes's perspective on judicial review of agency decisions gave way to Brandeis's. Hughes's outlook, however, continued to animate the conservatives in Congress.

31. In England, by contrast, “judicial deference to administrative actions became legend. Only in the late twentieth century would British courts begin to expand judicial review of administrative actions. Amazed observers referred to the change as a constitutional revolution.” SeeBenedict, Michael Les, “Law and Regulation in the Gilded Age and Progressive Era,” in Law as Culture and Culture as Law: Essays in Honor of John Phillip Reid, ed. Hartog, Hendrik and Nelson, William E. (Madison: Madison House Publishers, 2000), 244Google Scholar.