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Federalism and the Processes of Governance in Hurst's Legal History
Published online by Cambridge University Press: 28 October 2011
Extract
“The more important any legal theme is in United States history,” Willard Hurst once wrote, “the more likely it is that it has been significantly affected by the coexistence and interplay of the national and the state governments.” That federalism and its impact on legal development should have been of central importance to Hurst's interpretations of American history is by no means surprising, yet the subject seldom finds a place in the growing literature on Hurst's seminal research contributions. His estimate of federalism's importance may no doubt be explained in part by the close relationship that he had with Felix Frankfurter as the research assistant in 1935–36 for Frankfurter's book of lectures on the Commerce Clause in the nineteenth century. This was a study animated, one can be certain, by Frankfurter's interest in finding ample room within the constitutional order for giving the states adequate space to pursue their varied individual policy preferences in response to the challenges posed by economic and social change. Indeed, Frankfurter had long been struggling with the issue of what authority was left, by a proper interpretation of constitutional federalism, to the state legislatures and courts; and he must have been pleased when Hurst wrote to him in 1938 that he was thinking about undertaking a historical study of diversity jurisdiction as a way of getting “a slant on the business of making federalism work.”
- Type
- Commentaries
- Information
- Law and History Review , Volume 18 , Issue 1: Engaging Willard Hurst: A Symposium , Spring 2000 , pp. 205 - 214
- Copyright
- Copyright © the American Society for Legal History, Inc. 2000
References
1. Hurst, , The Legitimacy of the Business Corporation (Charlottesville: University of Virginia Press, 1970), 139.Google Scholar
2. Ernst, Daniel R., “Willard Hurst and the Administrative State: From Williams to Wisconsin,” Law and History Review 18 (2000): 17.CrossRefGoogle Scholar
3. Hurst to Frankfurter, 27 Feb. 1938, quoted in Ernst, “Willard Hurst,” 6, n. 12. On the evolution of Frankfurter's views of federalism, see also the discussion in scheiber, Harry N., “Redesigning the Architecture of Federalism—An American Tradition,” Yale Law and policy Review/Yale Journal on Regulation, Symposium Issue (1996): 253–56.Google Scholar
4. For new material from archival and personal sources on Hurst's relationship to and views of Brandeis, see Ernst, “Willard Hurst,” and Konefsky, Alfred S., “The Voice of Willard Hurst,” Law and History Review 18 (2000): 147–65.CrossRefGoogle Scholar
5. I am indebted with regard to Garrison's views (which included his advocacy of a proposal to amend the Constitution to give Congress explicit plenary regulatory power) to Professor Kjell Åke Modéer (Lund University, Sweden), who has in progress a biography of Garrison. For Llewellyn's comment (that “the actual lines of distribution [of power] are inane”) and the more general Legal Realist position, see Scheiber, Harry N., “Federalism and Legal Process: Historical and Contemporary Analysis of the American System,” Law and Society Review 14 (1980): 663, 665.CrossRefGoogle Scholar
6. Hurst to the author, 17 April 1985, in author's files.
7. See text at notes 26–28, below.
8. Hurst, , Law and Social Process in United States History (Ann Arbor: University of Michigan Press, 1960), 24.Google Scholar On size and scale as challenges, and the relationship to federalism, see, e.g., ibid., 61 and following, 247–48.
9. Hurst, Legitimacy, 140.
10. Ibid., 145.
11. See Hurst, , Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), 29Google Scholar (“[I]n most affairs one senses that men turned to non-economic issues grudgingly or as a form of diversion and excitement or in spurts of bad conscience over neglected problems”). On Hurst's larger interpretation of the quest for material growth and its place in the scheme of popular values that he regarded as being accurately expressed, on the whole, in law, see Scheiber, Harry N., “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” American Historical Review 75 (1970): 744–56CrossRefGoogle Scholar (also analyzing the problematic issues that are involved in Hurst's equating of popular will with legal outcomes). See also the essays in this symposium by Novak and Landauer. For an insightful commentary by Hurst on the evidentiary problem, in this regard, see his essay, “Legal Elements in United States History,” in Perspectives in American History 5 (1971): 26–27 and following.
12. Hurst, “Legal Elements” (“Our cultural inheritance valued individuality and a broad scope for innovative will and venturing energy”); see also Hurst, Law and the Conditions of Freedom, 8 and passim.
13. See Hurst, , Law and Social Order in the United States (Ithaca: Cornell University Press, 1977), 25.Google Scholar
14. See Latham, Earl, The Group Basis of Politics: A Study in Basing-Point Legislation (Ithaca: Cornell University Press, 1952) 36Google Scholar; see also the discussion of Hurst's leadership in the move away from Progressive historiography to pluralist analysis, in Scheiber, Harry N., “Public Economic Policy and the American Legal System: Historical Perspectives,” Wisconsin Law Review 1980: 1159.Google Scholar Compare Hurst's use of the term “balance of power” in Law and the Conditions of Freedom, especially in the third chapter (by that title), and also his discussion of how “creation of a balance of power [in Madisonian terms] is a fundamental way in which we may use law to fashion the social framework” (ibid., 42).
15. Hurst, , Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, Mass.: Belknap Press, 1964), 54Google Scholar and following. For Hurst's realism in relation to classical common-law analysis, see Gordon, Robert W., “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10, no. 1 (1975): 9–55.Google Scholar
16. Hurst to the author, 17 April 1985, in author's files.
17. On the historiographic controversies, see Scheiber, Harry N., “Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America,” Yale Law Journal 107 (1997): 823–61CrossRefGoogle Scholar; Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar; cf. Freyer, Tony, Producers versus Capitalists: Constitutional Conflict in Antebellum America (Charlottesville: University Press of Virginia, 1994), passim.Google Scholar
18. Hurst, Law and Economic Growth, passim.
19. Hurst, Legitimacy of the Business Corporation, 139.
20. For efforts to merge formal constitutional doctrinal development with a functional analysis of federalism on the lines Hurst marked out, see Scheiber, Harry N., “Federalism and the American Economic Order, 1789–1910,” Law and Society Review 10, no. 1 (1975): 57–118CrossRefGoogle Scholar; on the twentieth-century history, see Scheiber, “Redesigning the Architecture of Federalism,” 227–96.
21. Hurst, Legitimacy of the Business Corporation, 139.
22. Hurst, Law and the Conditions of Freedom, 42.
23. Scheiber, “At the Borderland.”
24. Hurst, Law and Economic Growth, 14–15. See also ibid., 240–41.
25. Ibid., 253, 251, 261–63.
26. Scheiber, “At the Borderland,” and “Public Economic Policy,” 1170–71. Racism in California, for example, was prominent in popular constituional debate and injected explicitly into the 1879 state constitution itself. See Scheiber, Harry N., “Race, Radicalism, and Reform: Historical Perspective on the 1879 California Constitution,” Hastings Constitutional Law Quarterly 17 (1989): 35–80Google Scholar; Taylor, Paul S., “Foundations of California Rural Society,” California Historical Society Quarterly 24 (1945): 193–228.Google Scholar
27. Hurst, Law and the Conditions of Freedom, 41.
28. Ibid., 43.
29. Hurst, Law and Economic Growth, 263.