Judicial Response to Industrialization

The common law typically operates after the fact. It resounds to, rather than anticipates, new situations and new institutions. Litigants have to bring cases; counsel for them have to offer arguments about how to square precedents with new social conditions. In this sense, industrialization brought about a dramatic surge in the demands placed on the federal and state appellate judiciaries. The business of the courts mirrored the economic and social changes wrought by industrialization, and appellate judges continued to fulfill their historical role of allocating the costs, risks, and benefits

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of economic development while protecting individual property rights under a written constitution. They also, however, acquired new authority, invoking it through a revamped power of judicial review by which they considered the substantive consequences of legislation as well as the issue of whether legislative bodies had the constitutional authority to act, especially through the police powers, to adjust the effects of industrialization.

The courts exercised their more extensive authority with some ambivalence, and judges on the same courts often mixed formalist and instrumentalist conceptions of the proper judicial role. The industrial world was a reality, and judges gave far broader discretion to legislatures than historians have usually recognized. As important, judges began to recognize that extrajudicial materials could be useful in understanding the intentions of legislators and in coming to grips with the social implications of the law in action. But the judiciary clung to the notion that they had a special responsibility to protect traditional economic rights and, with the help of counsel and law writers such as Cooley and Tiedeman, they fashioned the doctrines of substantive due process of law and freedom to contract. These doctrines were judicial expressions of the laissez- faire mentality that pervaded, but never completely controlled, American social and economic thought between the Civil War and World War I. The judiciary before the Great Depression of the 1930s only gradually and incompletely recognized the breadth of social and economic change that swirled about it. Yet the currents of change in legal thought, in sources of authority for judicial opinions, in the nature of the judicial role, and in economic organization that were underway during these years culminated with the New Deal at another turning point in the legal history of the United States.

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13
Cultural Pluralism, Total War, and the Formation of Modern Legal Culture: 1917-1945

In the first half of the twentieth century, the United States burst onto the world stage. The nation in World Wars I and II plunged into armed conflicts of such magnitude that the federal government completely mobilized the nation's human, economic, and patriotic resources. Developments abroad complemented the Progressives' insistence that, in many areas of domestic affairs, the federal government was best able to formulate public policy for an increasingly interdependent and culturally diverse society. The nation had become culturally pluralistic at the same time that it became more deeply involved in world affairs. Between 1870 and 1914, the nation's ethnic and religious makeup became increasingly rich. More than 25 million immigrants from southeastern Europe and Russia spilled ashore; most of them were unskilled laborers destined for the nation's industries. The political, personal, and religious practices of these new immigrants frightened much of the native-born white population. Their anxiety fueled a nativist movement that sought to perpetuate existing cultural values against the foreign born and, during the 1920s, in a revived Ku Klux Klan. The Klan broadened its attack to include Jews, Catholics, and the foreign born and proclaimed a slogan of "native, white, Protestant supremacy." ¹

During World War I and, to a lesser extent World War II, cultural tensions and national security converged. Faced with an unprecedented military threat, national and state lawmakers censored political discourse and quashed dissenters and radicals. During World War I, these measures fell with particular severity on ethnic groups, which had become closely identified in the public mind with labor agitation and un- American political "isms": socialism, anarchism, and communism. Following the attack on Pearl Harbor in 1941, the federal government directed its power toward the Japanese-Americans.

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Modern civil liberties were born in these years. Civil liberties refers to legal guarantees, mostly under the First Amendment to the Constitution, that protect individuals against governmental interference with religious belief, speech, press, and association.

Modern civil rights also had their origins in the racial conflict of these decades. Civil rights refers to the legal protection that individuals enjoy against injury, discrimination, and denial of rights by private persons and by government. Civil rights are usually thought of in terms of the social and economic pursuits of everyday living. ²

Like nativism, racism had been an established feature of life in the United States. The two great wars, however, spurred demographic changes with broad implications for race relations. The growth of defense industries in the North and the West drew blacks out of the agricultural South. Between 1915 and 1918, some 450,000 blacks trekked to northern cities in search of industrial jobs that they seldom had access to in peacetime. Blacks also served in the armed forces, albeit in segregated units, and their participation, especially in World War II, gave them a claim written in blood to fuller political and social equality.

Nativism, racism, and national security converged in such a way as to raise anew the meaning of the rule of law and to reshape values within the legal culture. By the end of World War II, that culture was cast in its modern form, which featured private associations (the American Civil Liberties Union and the National Association for the Advancement of Colored People) seeking to promote civil liberties and civil rights, a professionalized bar and criminal justice system, and a federal government significantly more involved than ever before in the lives of its citizens.

Date: 2015-01-29; view: 578