The term “laissez‐faire constitutionalism” refers to an ideological attitude that characterized some justices of the Supreme Court between the Civil War and the New Deal. The ideology reflected classical liberal economics, with its commitment to market control of the economy, a preference for entrepreneurial liberty, and a concomitant hostility to governmental regulation; social Darwinism, which extolled competition in the struggle for social existence and survival of the economically fittest; a formalist approach to adjudication, with a preference for abstractions and formal logic; traditional American values, including individualism, access to opportunity, and hostility to restraints on competition; and a fear of social unrest, spawned by immigration, industrialization, urbanization, and the struggles of organized labor.
The values of laissez‐faire constitutionalism were first articulated on the Supreme Court in the dissents of Justices Stephen J. Field and Joseph P. Bradley in the Slaughterhouse Cases (1873). These values produced the doctrine of substantive due process, which commanded a majority of the Court for the first time in Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota (1890), and the derivative doctrine of freedom of contract, which achieved its first triumph in Allgeyer v. Louisiana (1897). The Court during the chief justiceships of Melville W. Fuller, Edward D. White, and William Howard Taft (1888–1930) was often receptive to these values, producing such specimens of laissez‐faire constitutionalism as the Income Tax Cases (Pollock v. Farmers' Loan & Trust Co., 1895) and Plessy v. Ferguson (1896). Allied with traditional concepts of federalism, the ideology led to decisions restrictive of federal regulatory power, including United States v. E.C. Knight Co. (1895) and the Child Labor Cases (Hammer v. Dagenhart, 1918, and Bailey v. Drexel Furniture Co., 1922). Laissez‐faire constitutionalism was marked by a virulent and unconcealed hostility to organized labor, which resulted in such decisions as In re Debs (1895) and Loewe v. Lawlor (1908). The high points of laissez‐faire constitutionalism's hold on the minds of Supreme Court jurists came in Lochner v. New York (1905), Coppage v. Kansas (1915), and Adkins v. Children's Hospital (1923). Various state supreme courts, including those of the leading industrial states (New York, Illinois, Pennsylvania, and Massachusetts) were receptive to laissez‐faire premises, producing such monuments of conservative jurisprudence as In re Jacobs (New York, 1885) and Ives v. South Buffalo Railway Co. (New York, 1911). (See State Courts.)
But the ideology never lacked for critics, foremost among them on the Court being Justice Oliver Wendell Holmes, whose Lochner dissent trenchantly rejected its assumptions. Louis D. Brandeis, then in private practice, struck a fatal blow at the doctrines of laissez‐faire constitutionalism through the “Brandeis brief,” acknowledged as persuasive by a majority of the Court in Muller v. Oregon (1908)—but rejected by a later majority in Adkins. Off the Court, academic critics like Roscoe Pound of the Harvard Law School and political leaders, including Theodore Roosevelt in his Bull Moose campaign of 1912, condemned the results of the doctrines. Moreover, the ideology was only intermittently dominant; the Court sustained most regulatory legislation, as in Muller and Holden v. Hardy (1898).
Laisser‐faire constitutionalism revived vigorously after World War I, dominating the Taft Court. Its grip weakened momentarily during the New Deal, enabling the Court to sustain some state and federal regulatory legislation. But its force recuperated powerfully in 1936 and 1937, producing the last great burst of antiregulatory decisions, including Carter v. Carter Coal Co. (1936) and Morehead v. New York ex rel. Tipaldo (1936). The constitutional revolution of 1937 swept it away completely, and the Court systematically repudiated its premises and the precedents that it had spawned (see Court‐Packing Plan).
Critics of the modern Court sometimes see a revival of laissez‐faire doctrines in the Burger and Rehnquist Courts. But differences far outweigh similarities between the turn‐of‐the‐century and the contemporary Court. Laissez‐faire constitutionalism was profoundly suspicious of democracy, as evidenced by the writings of its foremost academic apologists, including Christopher Tiedeman, whereas modern conservatives extol the power of democratic majorities. Further, modern judicial conservatism shares few of the values of its ancestor. It is too sophisticated to accept the crudities of social Darwinism as extolled by Justice Rufus Peckham. Nearly a century of experience has abated the visceral fears of organized labor and immigrants. Yet a preference for market control of the economy and private ordering by contract, rather than public ordering by regulation, displays some continuities with the past.
See also History of the Court: Reconstruction, Federalism, and Economic Rights.
Bibliography
- William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (1998)
— William M. Wiecek
