The constitution besieged: The founding vision of a faction-free republic, the intensification of class conflict, and constitutional ideology during the Lochner era

What prompted the Supreme Court to become more active in striking down legislation around the turn of this century? Standard interpretations suggest either that the justices were laissez-faire ideologues or that they imposed their class or policy preferences on America's legislatures. In this study I argue that the justices were primarily motivated by a principled commitment to a well-defined and long-standing conception of political legitimacy that sought to divorce state power from the interests of particular groups or classes. My argument builds on work in critical legal studies and the "new institutionalism" which treats ideological and institutional structures both as by-products of historically contingent political struggles and as relatively autonomous systems of thought or practice; I develop my argument through the use of historical and interpretive methods common to this orientation.

I begin by exploring the origins of nineteenth century constitutionalism in the social and ideological conflicts arising after Independence. I show how the Constitution represented the institutionalization of the social visions of those classes that shared an interest in separating state power from groups disadvantaged by capitalist social relations; underlying this "faction-free" polity was the promise that capitalism would not threaten an individual's "independence." I then discuss how the founding vision found expression in state constitutional ideology during the Jacksonian period, as courts began to elaborate a jurisprudence that distinguished "public interest" legislation from acts that advanced "partial," "unequal," or "class" interests.

This tradition continued to shape judicial decisionmaking and legal commentary into the twentieth century. However, as capitalist forms of production matured, more people became convinced that their well-being was not insured by a neutral state. The proliferation of group activity and intensification of class conflict in the late nineteenth century constituted a direct challenge to principles that had organized American politics for more than a century. As the founders' republic came under siege, questions about its virtue and efficacy were addressed both by the legal community and by state managers contemplating the appropriate response of the American state to industrialization.