Post-Reconstruction Scholarship

The formal coupling of constitutional theory with politics was already evident in the high political discourse of writers in the first half of the nineteenth century. Constitutional analysis in the early nineteenth century was treated as a subset of a greater political philosophical study, an analysis of the appropriate political structures of government.⁶⁵ By the end of the century, however, constitutional scholarship emerged, in a rather self-conscious fashion, as an important forum for warring political ideologies. Confronting forty years of conservative national politics and an increasingly influential conservative law school professoriat, liberal legal scholars contributed significantly to the politicization, understood in its salutary sense, of constitutionalism.

The year 1876 marked the end of Reconstruction and the beginning of conservative dominance in federal politics, which continued until the election of Woodrow Wilson in 1912. Accompanying this dominance in national politics was a period of conservative constitutional rulings in the federal courts. From 1876 to 1937, the Supreme Court placed narrow strictures on congressional powers in commerce,⁶⁶ taxing,⁶⁷ and spending;⁶⁸ construed broadly the scope of state economic regulatory powers in the doctrines of economic substantive due process⁶⁹ and the 'dormant' commerce clause;⁷⁰ and stemmed the growth of administrative agency powers in the 'nondelegation doctrine.'⁷¹

These and other doctrines found intellectual and scholarly support with the development of the modern state university law school in the 1870s and 1880s, in which the political influence of the American public law scholar grew commensurately.⁷² Generally, the constitutional academy and practicing bar gave virtually unqualified support to the conservative position on political and socioeconomic issues. They advocated the virtues of laissez-faire and social Darwinism and disparaged the interests of the labor union and social reform movements. Among the prevailing views of the conservative constitutionalists at the turn of the century, two themes figured centrally. First, they understood the Constitution to be a source of social and political stability and valued its utility in the preservation of the status quo. By measuring and constraining the political authority of the federal government, the Constitution guaranteed cautious and methodical social change. Second, they regarded the Constitution as 'formal' law. By judicial (and scholarly) interpretation, it could be translated into absolute and categorical rules and principles, which the federal courts would enforce to protect the contract and property rights that individuals enjoyed as a matter of common law.⁷³

In the late 1890s, however, and increasingly in the first decades of the twentieth century, a significant minority of legal academicians abandoned post- Reconstruction conservatism and joined the ranks of liberal political dissent.⁷⁴ This distinguished group of scholars furnished the intellectual foundation for the progressive and early realist legal movements.⁷⁵