This book explores the ideology of elite lawyers and judges from the Golden Age of the New Deal. Between 1866 and 1937, a coherent vision shaped how the American Bar Association understood the sources of law, the role of the courts, and the relationship between law and society. Here, William M. Wiecek examines this view—often referred to as “legal orthodoxy” or “classical legal thought”—which assumed that law was apolitical, determined, objective, and neutral. Classical American legal thought was forged in the heat of the social crises that characterized the late nineteenth century. Fearing unions, immigrants, and workers in general, several American elites, including those in the bank and bar, have sought ways to suppress disorder and prevent political majorities from using democratic processes to redistribute wealth and power. Classical legal thinking provided a justification that ensured the legitimacy of an existing allocation of society`s resources. It facilitated the legal suppression of trade unions and the subordination of workers to the authority of management. As the twentieth-century U.S.
economy grew in complexity, the anti-regulatory and individualistic bias of classical legal thought drifted further and further away from reality. The fragile and dogmatic legal ideology has lost its legitimacy in the eyes of the laity and in increasingly large parts of the Bar Association. It was eventually abandoned during the “constitutional revolution of 1937”, but nothing has emerged since then to replace it as an explanation of what law is and why the courts have such extensive power in a democratic society. A widely accepted pattern of American legal history is that “classical” legal thought, which dominated much of the nineteenth century, was replaced by “progressive” legal thought, which has survived through the New Deal and in one form or another to this day. In his field, it was a revolution that was almost on par with Copernicus or Newton. This paradigm has been adopted both by progressive liberals who defend this revolution and by classical liberals who deplore it. Classical legal thinking is generally identified with efforts to systematize legal norms along lines that have become scientifically known. This methodology involved not only simplification and order, but also “formalism” in the sense that it represented law as a complete system. At the risk of caricature, the “data” of this system were legal decisions – a model that reflected not only a preference for classification, but also a devotion to the idea that law is essentially judge and that it evolves over a long historical development. Historicism has become an important feature of legal classicism. The authors who are considered examples are people like Christopher Columbus Langdell, dean of Harvard Law School in the Golden Age, and Francis Wharton, an episcopal priest and prolific legal writer who wrote commentaries on many legal topics.
While classical legal thought in economic matters was generally anti-state, it was not libertarian. In fact, he advocated strict regulation of morality by the state, although he supported freedom of contract without interference from the state in general. The anti-legislative bias of legal classicism easily suited doctrines such as economic substantive due process, which emanated primarily from state courts and was an important part of Supreme Court doctrine during the first four decades of the twentieth century. The classical to progressive model of historical explanation is far too narrow to explain the profound changes in American law that took place in the decades leading up to 1900. These changes were welcomed by a wide range of lawyers and legal thinkers, not just the subgroup that described itself as “progressive.” For example, both the left and the right have welcomed important revisions in their conception of the “market”, as well as contract law, company and finance law, labour law and even law that respects the redistribution of wealth. Oliver Wendell Holmes, Jr.`s approach to law is far better understood as marginalist than Darwinian or realist. The growing reach of federal commercial power in commercial activity, which has “influenced” trade, has been driven by marginalized economic theories that have shown how monopolies or other distortions at one level of production can distort all others. Overall, classical legal thinking would have collapsed, even if progressives had never appeared. However, this historical model persists primarily because it serves the interests of defenders and opponents of the institutions we associate with progressive legal thought – namely, the welfare state, increasing public participation in economic development, the rise of regulators with broad quasi-judicial and quasi-legislative powers, judicial review that respects the economic legislation, expanded federal market regulation and aggressive judicial oversight of government policies that harm underrepresented minorities. In 1998, legal historian William M.
Wiecek published a book describing the basic legal ideology that the “Lochner era” brought to us in Supreme Court decision-making. It was aptly titled The Lost World of Classical Legal Thought in America: Law and Ideology, 1886-1937. Wiecek showed that the “classical” legal thought that gave rise to the “libertarian” decision-making of the Lochner era, which took place in the first third of the twentieth century, was an attempt to directly apply Lockean political principles to the task of interpreting the 1787 constitution in the post-Reconstruction period. In 2004, Professor Randy E. Barnett argued in his book Restoring the Lost Constitution: The Presumption of Liberty that while “classical legal thinking” has unfortunately been lost, it embodies the true and legitimate constitution that can yet be recovered. In order to rediscover “classical legal thought,” he advocates rejecting the “presumption of constitutionality” as the centerpiece of constitutional jurisdiction and instead introducing a “presumption of liberty” to implement the libertarian views of the framers of the Constitution. This article will attempt to show that Barnett`s analysis of the Constitution constantly confuses the “goals” the founders sought to advance with the “means” they chose to advance them. However, the outcome of the implementation of Barnett`s Lockean constitution would both undermine the rule of law and have the extremely damaging effect of placing the courts above the constitution that judicial review would have to interpret.
American Legal History, Classical Legal Thought, Progressive Legal Thought, Economic History, Labor Law, Corporate Law, Antitrust Law, Holmes This book examines legal ideology in the United States from the height of the Golden Age to the New Deal era, when the Supreme Court began. This title is available as an e-book. To buy, visit your favorite e-book provider. Discover other books by the author, see similar authors, read author blogs, etc. Download the free Kindle app and instantly read Kindle books on your smartphone, tablet, or computer, no Kindle device required.