Balkinization: Laissez Faire Redux?

Laissez Faire Redux?

Brian Tamanaha

Edward Corwin's Constitutional Revolution, Ltd. (1941) describes the rise of laissez faire views in court opinions in the late 19th Century:

In 1878 the American Bar Association was founded with a membership which included the elite of the American bar. On its roster in its early years appeared such names as John A. Campbell, Thomas M. Cooley, John W. Cary, William M. Evarts, Joseph H. Choate, Christopher G. Tiedeman...and others--former Justices of the Supreme Court, future Justices thereof, future Attorneys-General--and one future President!

...the Association soon became a sort of juristic sewing circle for mutual education in the gospel of Laissez Faire. Addresses and papers presented at the annual meetings iterated and reiterated the tenets of the new creed: government was essentially of private origin; the police power of the state was intended merely to implement the common law of nuisance; the right to fix prices was no part of any system of free government; "in the progress of society, there is a natural tendency to freedom"; the trend of democracy is always away from regulation in the economic field; "the more advanced a nation becomes, the more will the liberty of the individual be developed," and so on. The basic assumption of these cerebrations is inescapable. It is that the guaranties which the Constitutions affords private rights were intended chiefly to supply an added sanction to the laws of Political Economy and an endorsement of Evolution, and particularly Herbert Spencer's conception thereof....

Indeed, when one turns from the Reports of the American Bar Association to those of the Supreme Court one discovers a long line of cases...in which some or other of the gentlemen listed above appeared as counsel against the legislation involved.

"The development of the law," say Judge Baldwin in his volume The American Judiciary, "whether unwritten or written, is primarily the work of the lawyer. It is the adoption by the judge of what is proposed at the bar." He ought to have added, "and at the Bar Association meetings, and in books written by lawyers." For the membership of the Association was also prolific during this period of legal or semi-legal treatises whose teachings were strongly penetrated by the gospel of Laissez Faire--works like Cooley's Constitutional Limitations, the most influential work ever published on American Constitutional law...

Thus were the feet of the Court set upon the pathway of Laissez Faire...

Sounds familiar? It's still early, and most successes, if they are to come, lie in the future, but the core agenda substantially overlaps and the method of propagating it is the same: The Federalist Society (and a loosely surrounding network). A supportive circle for the exchange of ideas and mutual promotion, the production of quality papers and books, ample financial and institutional support (Cato and AEI), leading intellectual lights (Randy Barnett and Richard Epstein), well placed judges (not even counting Justice-to-be Roberts) and high level government officials, lawyers actively bringing cases to implement this vision (Washington Legal Foundation, Center for Individual Rights, etc.)--it's all there. Of course there are many differences, but nonetheless there are striking similarities.

This is the Age of Legislation (or, actually, the Age of Administrative regulation). Yet it is still the case that the legal understandings that course through and inform the interpretation of legislation, constitutions, and the common law are largely the production of lawyers, judges, and legal scholars. Legal actors--their ideas, beliefs, and concepts--give life to the law. If that is correct, the Federalist Society and its various supportive adjuncts may come to have a formidable impact on American law.

Don't misunderstand: this is not in the least to bash the Federalist Society. To the contrary, even as I disagree with a good deal of what the Society promotes (or at least what some of its more vocal members promote), I admire their conviction and strategic acumen.

Even at the height of its dominance, laissez faire never completely controlled US jurisprudence, but it had a real impact for almost five decades. We may be in for another round, more modest perhaps, not threatening the basic elements of the social welfare state (I hope), but no less real in its consequences. Time will tell. Meanwhile, those who oppose these views must recognize that we are being out organized and out produced. The Federalist society is spreading its views and (more importantly) acting strategically to advance them.

Posted 10:47 AM by Brian Tamanaha [link]