Balkinization: The Four Constitutional Narratives of the Taft Court

The Four Constitutional Narratives of the Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Jeffrey Rosen

“At least four distinct narratives about the nature and purpose of constitutional law are visible within the Taft Court,” Robert Post writes in his landmark and extraordinarily illuminating contribution to the Holmes Devise. Post describes a Court bitterly divided over questions of constitutional meaning and interpretation. It’s striking, however, that none of these four narratives can be described as originalist or textualist in the contemporary sense.

Common law constitutionalism, associated with Justice James McReynolds, held that the courts should speak for the customs and traditions of the American people, which were embodied in common law rather than ordinary statutes. James McReynolds was a traditional Southern Democrat who was suspicious of federal power and devoted to states’ rights and individual liberties for white men. (McReynolds was also a notorious racist and anti-Semite who declared that he “distrusted all Jews” and “that Jewish lawyers looked on law as if handed down from Zion.”) McReynolds believed that law inheres public sentiment, and public sentiment is reflected in custom rather than ordinary legislation. He therefore looked for legal guidance to the traditions, customs and habits reflected in the common law, rather than in statutes or the constitutional text. McReynolds defended unenumerated rights of property and contract—which he believed were rooted in morality as well as history and tradition— as a bulwark against the intrusions of the nascent administrative state.

Majoritarianism, associated with Oliver Wendell Holmes, held that courts should defer to the dominant view of the majority, as expressed by legislatures rather than the common law. Holmes “flatly rejected,” Post argues, “the equation of law with custom and tradition.” His experiences in the Civil War, where he was wounded three times and nearly died, imbued him with a deep skepticism of moral absolutes of any kind. Convinced that truth was whatever a majority determined it to be, he concluded that deference to legislatures was necessary to prevent society from breaking into open violence. The purpose of law was to allow majorities to prevail over minorities, and the purpose of courts was to allow the dominant group to express its views through legislation. Judges should invalidate laws only in the rare circumstances when they clashed with what Holmes called “the literal meaning and plain intent of a constitutional text.” As a result, Holmes upheld laws he reviled on policy grounds. “The more powerful interests must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest,” Holmes wrote in a passage that Post calls the “kernel” of his jurisprudence. Holmes added, “if my fellow citizens want to go to Hell I will help them. It’s my job.”

Democratic constitutionalism, associated with Louis Brandeis, held that courts should protect individual rights and liberties, in addition to deferring to democratic majorities, in order to promote human flourishing and democratic self-government. Brandeis agreed with Holmes that courts should rarely invalidate social and economic legislation under the Fourteenth Amendment, but for very different reasons. “Holmes thought courts ought to defer to statutes because legislation best reflected the dominant opinion of a community, which was the expression of its sovereignty,” Post writes. “By contrast, Brandeis believed that courts ought to defer to legislation because statutes were the result of a democracy that empowered persons to become ‘free citizens of a free country [who] may perform their duties as citizens.’” If Holmes viewed democracy as a flawed but necessary tool to maintain social order, Brandeis viewed it as a vehicle for personal as well as political self-government and human flourishing. This difference was obvious in their First Amendment jurisprudence, where Holmes protected free speech on the pragmatic grounds “that the best test of truth is the power of the thought to get itself accepted in the competition of the market” while Brandeis protected free speech on the idealistic grounds “that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” An opponent of the curse of bigness, in business and government, Brandeis was also a Jeffersonian fiercely devoted to individual liberty as well as states’ rights.

The neoliberal constitutionalism associated with William Howard Taft held that courts should protect rights of property and contract, the necessary engines of economic prosperity. Unlike the Jeffersonian Brandeis, Taft’s heroes were John Marshall and Alexander Hamilton; and like the Federalists, Taft exalted national economic development over states’ rights. As Post writes, “Taft and Brandeis differed in many ways in their perspectives on constitutional law, but the most fundamental point of disagreement is that Taft understood the Constitution to establish “the security of private property and free contract” in order to safeguard “the chief agent in the material progress of the human race.” Taft’s belief that the Supreme Court’s role was to protect property rights from impulsive majorities was grounded in utilitarian (rather than strict constructionist or originalist) reasoning. He did not primarily rely on constitutional text, history, tradition, natural law, or common law traditions. (In this sense, he protected private property for different reasons than McReynolds.) Instead, Post writes, he “believed that judicial review and constitutional law were necessary to protect the inducements for the ‘industry and self-restraint’ that created civilization.” Like some of his conservative colleagues, such as George Sutherland and Pierce Butler, Taft “envisioned Americans as joined together in dedication to ongoing economic expansion” and “conceived of that commitment as deeper and more vital than the public’s investment in any statute that might emerge from the superficial give and take of the legislative process.”

Post’s brilliant typology reveals that none of the four leading justices on the Taft Court considered themselves originalists or textualists as those terms are used on the Supreme Court today. Brandeis was committed to democracy, Holmes to majoritarianism, McReynolds to traditional morality, and Taft to protecting private property and a vibrant national economy. Modern originalists are leapfrogging over the Taft era to resurrect an older, anti-Federalist tradition of strict construction and textualism that dates back to Spencer Roane and John Taylor’s response to McCulloch v. Maryland. Whether that anti-Federalist tradition is, in fact, consistent with the original understanding and public meaning of the Constitution is a subject for another symposium.

Jeffrey Rosen is President & CEO of the National Constitution Center and a professor at the George Washington University Law School. His new book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America. jrosen@constitutioncenter.org

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