Epilogue: More Like a River than a Rock 1 page

Unity within diversity, constancy within change: those have been dominant themes in American legal history. In scope and complexity, the legal system has grown enormously, as has the penetration of government into the daily lives of Americans. While lawmakers have always played a role in the distribution of economic costs, benefits, and rewards, that role, and the judicial, administrative, and regulatory apparatus that supports it, is far greater than anything within the imaginations of the generation that created the nation, let alone the first white colonists. The substance and structure of the legal system have changed accordingly, reflecting the values and assumptions of past generations. The legal culture has historically been the product of changes in the general culture, and legal adaptation in both private and public law have been essential to the legitimacy of the legal system.

We should exercise great caution in thinking about the legal history of the American law. Our legal system had its origins in the ambiguities of a colonial experience in which white settlers had to adapt their carried legal tradition to a new environment. Even with nationhood, Americans did not create a national law; rather, they settled on a constitutional system that, while giving important powers to the national government, purchased unity by leaving the police powers to the states and granting them significant autonomy over the conduct of their political, social, and economic affairs. Variations among the legal systems of the states, the regions, and between the states and the national government have been one of the principal features of American legal history. The federal system has made the law important at both the core and the periphery, or at both the local and the national level. Even today, when Congress and the Supreme Court exercise authority on an unprecedented scale, state lawmakers, state constitutions, state judges, and state common law remain vital, even essential, elements in the legal system. As was the case two centuries ago, so it is today, there are many common law systems (and even a strong civil law system in Louisiana).

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The institutions of the legal system have changed yet remained the same. Administrative and regulatory bodies today constitute a fourth branch of government, but legislative regulation dates to the colonial era. The rise of a separate structure (the independent regulatory agency) was wholly compatible with the principle forged early in the history of the republic that law and politics should be separated in the interests of moral authority and efficiency. The authority of appellate courts has expanded dramatically, and the practice of judicial review, a dimly understood and little-used power in the eighteenth century, has become an essential ingredient of the legal system. Through it, the Supreme Court has established a virtual monopoly over the interpretation of the Constitution. The entire nature of the judicial role has changed as well, with judges ceasing to apply precedent mechanically and instead turning to an expansive, legislative-like role in which they draw on extralegal as well as legal sources in applying the common law, balancing competing constitutional claims, and interpreting statutes. Yet courts remain reactive institutions, far more so than the notion of an imperial judiciary would suggest. Today, as was true centuries ago, courts must wait for cases and controversies before they can act and they remain, even in an age in which legal realism has become a commonplace idea, bound by the necessity of explaining what they do in terms of the law.

State and congressional legislation has grown prodigiously, especially since the late nineteenth century, and it has seemed that in this age of statutes the common law would be submerged. In this sense, the law explosion has been a long time in coming. Yet, even as the statute books explode in girth, the common law continues, as it has historically, to be an important means through which the legal system adapts to social change.

The adaptive process appears in the changing nature of substantive private and public law rules and in the goals of the criminal justice system. Contract, property, and tort law, for example, which were privatized in the early nineteenth century, are today becoming increasingly public. The concept of substantive due process of law, which secured certain economic rights from government interference in the late nineteenth century, has since 1937 been transformed by the Supreme Court into a doctrine to sustain such noneconomic rights as abortion and access to birth control materials. Behind the increasing convergence of public and private law is a sense of rights consciousness, one that has been supported since the New Deal by the Supreme Court's far-reaching reconceptualization of civil liberties and civil rights. Fairness, just compensation, and equality before the law have emerged as persistent themes in modern legal culture. They have also found expression in the criminal justice system, although its tradition of popular control has created a tension among the goals of rehabilitation, deterrence, and retribution.

The ideological basis of American legal culture has also displayed consistency within change. American law in the early twentieth century, and certainly by the New Deal, shifted from its eighteenth- and nineteenth-century republican origins, which had stressed the commonwealth idea, to liberal legalism, with its interest-group orientation and its emphasis on individual rights. Lawmakers have historically invoked the concept of the rights of the public to intervene legitimately against private rights, although they have never done so in order to redistribute wealth on a broad scale. The incessant rhetoric of laissez-faire and individualism in American legal thinking should not detract from the simple truth that, from the beginning of the nation, the law has fostered a

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mixed economy. The central tendency of lawmakers has been to involve themselves in matters of private economic decision making, not to leave those decisions to exclusively private interests. Indeed, much of the political history of the nation has involved the continuing efforts of different economic interests to secure public power, hence lawmaking authority to serve their own ends.

The American legal system has taken private rights seriously, although not all rights have been protected equally at all times. Until the early twentieth century, public and private law threw up sort of a shield around economic rights and property. That protection was never complete and, in any case, the changing nature of property made inevitable the reformulation of legal doctrines to shield it. Legal formalism, substantive due process of law, and freedom to contract were important but not conclusive barriers to government intervention in the economy. They were indicative of sensitivity to rights under the rule of law. Since the constitutional revolution of 1937, federal courts have deferred to legislatures on matters of economic regulation, but they have recalibrated the yardstick of judicial oversight to take greater account of civil liberties and civil rights. Only in the past two decades, amid the heated controversy over affirmative action and the public-interest law explosion, have judges and lawmakers come to reexamine the balance between individual liberty and economic well-being.

The legal culture has reflected the general culture's commitment to the idea of equality, though equality of a particular, and to the minds of some, limited sort. Americans have citing to the idea that the rule of law implies only that the playing field be level, not that every player on it be similarly endowed. Equality of status (the idea that all persons should be similarly situated as a result of the law) has been alien to most Americans and, hence, to the legal culture. American culture, even in this age of liberal legalism, has rejected the idea that government should redistribute wealth and social power in the name of the collective good. At the same time, it has also proved resistant, even in the nineteenth century, to an opposite vision of radical individualism, of strict laissez-faire policy, and of the nightwatchman state.

Our legal history reflects back to us generations of pragmatic decision making rather than a quest for ideological purity and consistency. Personal and group interests have always ordered the course of legal development; instrumentalism has been the way of the law.

Who have been the winners and losers? The answer is hardly clear-cut. The rule of law in American history has made possible widespread economic and political power, and the long-term trend has been toward the greater dissemination of both, as the evolving legal history of blacks and women suggests. The legal culture has supported the creation of a significant middle class, enhanced the development of new technologies in the service of the public, and maintained social control sufficiently for the realization of individual ambition.

Yet our legal past is studded with injustice. Neither wealth, political power, social standing, nor civil liberties and civil rights have ever been equally distributed. Often the legal system has abetted racial and gender discrimination, maldistribution of wealth, exploitation and political powerlessness. Through a tradition of popular justice, Americans have frequently and savagely stepped outside the rule of law to administer criminal justice. The juggernaut of economic growth has spread considerable havoc; its costs can be tolled in pollution to the environment and in personal injury (and even death) to those whose labors made growth possible. Lawmakers have fre

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quently, as with slavery, pulled on the masks of the law, permitting rather than alleviating injustice. Our legal past has had a persistently dark side; the history of American law has not been the history of uninterrupted human progress.

Its history has been one of systematic change, of law and society reacting to and reinforcing one another. If we know something of the story of law, we can then appreciate more fully the history of the society of which it is a part. Habit and culture incline us to think of the legal system as stable, certain, orderly, and fair. Yet our legal history suggests that it has been more a river than a rock, more the product of social change than the molder of social development. As Oliver Wendell Holmes, Jr. observed almost a century ago, through our legal history we discover that we are what we have been.

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Notes

Introduction

1.

Oliver Wendell Holmes Jr., The Speeches of Oliver Wendell Holmes ( 1891), p. 17.

2.

The American Heritage Dictionary of the English Language ( 1976), p. 741.

3.

Donald Black, The Behavior of Law ( 1976), p. 1.

4.

Lawrence M. Friedman, American Law ( 1984), pp. 138-53. I am indebted here and elsewhere in this book to Professor Friedman.

5.

Robert Paul Wolf, ed., The Rule of Law ( 1971), pp. 243-52. See also Howard Zinn discussion of "The Conspiracy of Law," from which I have drawn.

6.

John Henry Schlegel, "Notes toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies," Stanford Law Review 36( January 1984):411.

7.

James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States ( 1956).

8.

Harry N. Scheiber, "American Constitutional History and the New Legal History: Complementary Themes in Two Modes," Journal of American History 68( September 1981):337-50.

Chapter 1

1.

Quoted in C. H. Lincoln, Revolutionary Movement in Pennsylvania ( 1901), pp. 17-18.

2.

As quoted in Richard Hofstadter, America at 1750: A Social Portrait ( 1973), p. 5.

3.

As quoted in Richard B. Morris, Studies in the History of American Law, with Special Reference to the Seventeenth and Eighteenth Centuries ( 1930), p. 25.

4.

As quoted in David Burner et al., An American Portrait: A History of the United States, 2nd Ed., 2 vols. ( 1985), vol. 2, p. 22.

5.

As quoted in Stephen Botein, Early American Law and Society ( 1983), p. 33.

6.

Ibid., p. 26.

7.

As quoted in Samuel Walker, Popular Justice: A History of American Criminal Justice ( 1980), p. 26.

8.

Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 ( 1983), p. 36.

9.

Botein, Early American Law, p. 18.

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10.

L. Alston, introduction to Thomas Smith, De Republica Anglorum (reprinted 1970), p. xxxiv.

10.

Julius Goebel Jr., "King's Law and Local Custom in Seventeenth-Century New England," Columbia Law Review 31( 1931):416.

12.

Julius Goebel Jr., and T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure, 1664-1776 ( 1970), pp. 497-507.

13.

David T. Konig, Law and Society in Puritan Massachusetts, Essex County, 1629-1692 ( 1979), pp. 89-116. See also Bruce H. Mann, Neighbors & Strangers: Law and Community in Early Connecticut ( 1987), pp. 162-70.

14.

D. Hening, Statutes of Virginia, vol. 1, p. 486.

15.

Robert Summers, "Law in Colonial New York: The Legal System of 1691," Harvard Law Review 80( 1967):1762.

16.

Joseph H. Smith, Appeals to the Privy Council from the American Plantations ( 1950), p. 660.

17.

Stanley N. Katz, "The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century," in Donald Fleming and Bernard Bailyn, eds., Law in American History ( 1971), p. 283.

18.

Daniel J. Boorstin, The Americans: The Colonial Experience ( 1958), p. 197.

19.

As quoted in Anton-Herman Chroust, The Rise of the Legal Profession in America ( 1965), vol. 1, p. 297.

20.

As quoted in Botein, Early American Law, p. 35.

21.

Ibid.

22.

Ibid., p. 56.

23.

Ibid.

24.

Peter Hoffer and N. E. H. Hull, Impeachments in America, 1635-1805 ( 1984), p. 42.

25.

As quoted in Clarence Ver Steeg, The Formative Years 1607-1763 ( 1964), p. 253.

26.

Ibid.

27.

As quoted in David Grayson Allen, In English Ways: The Movement of Societies and the Transferral of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century ( 1981), p. 39.

28.

Jon C. Teaford, The Municipal Revolution: Origins of Modern Urban Government 1650-1825 ( 1975), p. 16.

29.

Allen, In English Ways, p. 57.

30.

Mann, Neighbors & Strangers, p. 168.

Chapter 2

1.

M. Eugene Sirmans, Cultural South Carolina ( 1966), p. 228.

2.

As quoted in Jackson Turner Main, The Social Structure of Revolutionary America ( 1965), p. 227.

3.

Douglas L. Jones, "The Strolling Poor: Transiency in Eighteenth Century Massachusetts," Journal of Social History 9( 1975):45.

4.

Pennsylvania, Guardians of the Poor, A Compilation of the Poor Laws of the State of Pennsylvania from the Year 1700 to 1788, Inclusive (reprinted 1971), pp. 12-13.

5.

Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 ( 1983), p. 114.

6.

David T. Konig, Law and Society in Puritan Massachusetts, Essex County, 1629-1692 ( 1979), p. 174.

7.

Douglas Greenberg, Crime and Law Enforcement in the Colony of New York 1691-1776 ( 1976), p. 27.

8.

As quoted in Stephen Botein, Early American Law and Society ( 1983), p. 26.

9.

Lawrence M. Friedman, A History of American Law, 2nd ed. ( 1985), p. 72.

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10.

As quoted in Chapin, Criminal Justice in Colonial America, p. 128.

11.

William H. Seiler, "The Anglican Parish in Virginia," in James Morton Smith, ed., Seventeenth-Century America ( 1969), p. 134.

12.

Colonial Records of Rhode Island (reprinted 1971), p. 113.

13.

Ibid.

14.

As quoted in Chapin, Criminal Justice in Colonial America, p. 55.

15.

Richard B. Morris, Studies in the History of American Law, with Special Reference to the Seventeenth and Eighteenth Centuries ( 1930), p. 16.

16.

Marylynn Salmon, Women and the Law of Property in Early America ( 1986), p. 185.

17.

As quoted in Linda Grant De Pauw, "Women and the Law: The Colonial Period," Human Rights 6( 1977):112.

18.

Ibid.

19.

Mary Ryan, Womanhood in America: From Colonial Times to the Present ( 1975), p. 22.

20.

As quoted in Botein, Early American Law and Society, p. 12.

21.

William W. Hening, ed., The Statutes at Large: Being a Collection of All the Lawes of Virginia etc. (1819-1823), vol. 2, p. 43.

22.

William W. Wiecek, "The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America," William and Mary Quarterly 34( 1977):276.

23.

Ibid., p. 270.

24.

Friedman, History of American Law, p. 79.

25.

Hening, ed., Statutes, vol. 2, p. 268.

26.

Ibid., p. 394.

27.

As quoted in Paton Yoder, "Tavern Regulation in Virginia: Rationale and Reality," The Virginia Magazine 87( 1979):262.

28.

Carl Bridenbaugh, Cities in Revolt ( 1952), p. 148.

29.

Richard Hofstadter, America in 1750: A Social Portrait ( 1973), p. 10.

30.

John T. Farrell, ed., The Superior Court Diary of William Samuel Johnson, 1772-1773 ( 1942), p. xxxv.

31.

Hening, ed., Statutes, vol. 9, p. 226.

32.

As quoted in C. Ray Keim, "Primogeniture and Entail in Colonial Virginia," William and Mary Quarterly 25( October 1968):549.

33.

Morton J. Horwitz, The Transformation of American Law, 1780-1860 ( 1977), p. 32.

34.

A. W. Brian Simpson, "The Horwitz Thesis and the History of Contracts," The University of Chicago Law Review 46( 1979):557.

Chapter 3

1.

"The Declaration of Independence," in Henry Steele Commager, ed., Documents of American History, 7th Ed. ( 1963), p. 100.

2.

Ibid.

3.

As quoted in Gordon Wood. The Creation of the American Republic, 1776-1787 ( 1969), p. 259.

4.

William E. Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 ( 1975), p. 67.

5.

Bernard Bailyn, The Ideological Origins of the American Revolution ( 1967), p. 200.

6.

Ibid.

7.

As quoted in Wood, Creation of the American Republic, p. 17.

8.

Ibid., p. 264.

9.

John M. Murrin, "The Legal Transformation: The Bench and Bar of Eighteenth Century Massachusetts," in Stanley N. Katz and John M. Murrin, eds., Colonial America: Essays in Politics and Social Development ( 1983), pp. 540-72.

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10.

Ibid., pp. 568-71.

11.

As quoted in Charles Adams, ed., The Works of John Adams, Second President of the United States ( 1850), vol. 10, p. 248.

12.

M. H. Smith, The Writs of Assistance Case ( 1978), p. 101.

13.

Bernard Bailyn, The Ordeal of Thomas Hutchinson ( 1974), p. 24.

14.

Smith, Writs of Assistance, p. 101.

15.

Peter Oliver, Peter Oliver's Origin and Progress of the American Revolution, edited by Douglas Adair and J. Schutz ( 1961), p. 35.

16.

As quoted in Stephen B. Presser and. Jamil S. Zainaldin, eds., Law and American History ( 1980), p. 73.

17.

Bernard Bailyn, ed., Pamphlets of the American Revolution ( 1965), p. 413.

18.

As quoted in Wood, Creation of the American Republic, pp. 292-93.

19.

As quoted in John P. Reid, In Defiance of the Law: The Standing Army Controversy, the Two Constitutions, and the Coming of the American Revolution ( 1981), p. 5. Emphasis added.

20.

Ibid., p. 215.

21.

Richard Maxwell Brown, Strain of Violence: Historical Studies of American Violence and Vigilantism ( 1975), p. 45.

22.

Ibid., pp. 95-133.

23.

As quoted in Pauline Maier, "Popular Uprisings and Civil Authority in Eighteenth- Century America," in Roger Lane and John J. Turner Jr., eds., Riot, Rout, and Tumult: Readings in American Social and Political Violence ( 1978.), p. 43.

24.

Ibid.

25.

Brown, Strain of Violence, pp. 41-66.

26.

Maier, "Popular Uprisings," p. 45.

27.

Hiller B. Zobel, The Boston Massacre ( 1970), p. 182.

28.

Ibid., p. 116.

29.

Wood, Creation of the American Republic, p. 265.

30.

Ibid., p. 264.

31.

Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era ( 1980), p. 104.

32.

As quoted in Peter S. Onuf, "A New Constitutional Order," in Herman Belz, ed., This Constitution: A History ( 1987), p. 29.

33.

Ibid., p. 8.

34.

W. P. Adams, First American Constitutions, p. 63.

35.

Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787 ( 1983).

36.

W. P. Adams, First American Constitutions, p. 64.

37.

Ibid.

38.

Thomas Jefferson, Notes on the State of Virginia, edited by William Peden ( 1955), p. 121.

39.

As quoted in Onuf, "New Constitutional Order," p. 18.

40.

R. R. Palmer, The Age of Democratic Revolutions ( 1959), vol. 1, p. 214.

41.

As quoted in Onuf, "New Constitutional Order," p. 21.

42.

Wood, Creation of the American Republic, p. 383.

43.

Ibid., p. 388.

44.

Bayard v. Singleton, 1 Martin 42 ( N.C. 1787), p. 90.

45.

George Washington to Henry Knox, December [4], 1786, George Washington Papers, Library of Congress.

46.

Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress ( 1979), p. 371-75.

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Chapter 4

1.

As quoted in Jamil S. Zainaldin, Law in Antebellum Society: Legal Change and Economic Expansion ( 1983), p. 13.

2.

As quoted in Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic ( 1971), p. 268.

3.

Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution ( 1985), p. 287.

4.

As quoted in ibid., p. 202.

5.

Cecilia M. Kenyon, "Men of Little Faith: The Anti-Federalists on the Nature of Representative Government," William and Mary Quarterly 15( 1955):3-43.

6.

As quoted in Gordon Wood, The Creation of the American Republic, 1776-1787 ( 1969), p. 527.

7.

Ibid., p. 532.

8.

Ibid.

9.

McDonald, Novus Ordo Seclorum, p. 259.

10.

The Federalist Papers ( 1961), p. 83. (Referred to in text as Federalist.)

11.

As quoted in McDonald, Novus Ordo Seclorum, p. 277.

12.

Harry N. Scheiber, "Federalism and the Constitution: The Original Understanding," in Lawrence M. Friedman and Harry N. Scheiber, eds., American Law and the Constitutional Order: Historical Perspectives ( 1978), p. 88.

13.

Ibid.

14.

U.S., Constitution, Art. 1, sec. 18.

15.

McDonald, Novus Ordo Seclorum, p. 270.

16.

Ibid., p. 269.

17.

As quoted in Scheiber, "Federalism and the Constitution," p. 89.

18.

Federalist Papers, p. 469.

19.

Ibid.

20.

U.S., Constitution, Art. III, sec. 1.

21.

Max Farrand, ed., The Records of the Federal Constitutional Convention ( 1966), vol. 2, p. 76.

22.

Ibid., p. 299.

23.

U.S., Constitution, Art. IV, sec. 2.

24.

Edward S. Corwin, "The Constitution as Instrument and Symbol," American Political Science Review 30( 1936):1071, 1078.

25.

James Sterling Young, The Washington Community 1800-1828 ( 1966), p. 13.

26.

"Jefferson's First Inaugural Address," in Henry Steele Commager, ed., Documents of American History, 7th Ed. ( 1963), p. 187.

27.

Julius Goebel Jr., Antecedents and Beginnings to 1801 ( 1971), p. 458.

28.

Ibid., p. 553.

29.

As quoted in Robert G. McCloskey, The American Supreme Court ( 1960), p. 31.

30.

Mary K. B. Tachau, Federal Courts in the Early Republic: Kentucky, 1789-1816 ( 1978).

31.

As quoted in McCloskey, The American Supreme Court, p. 35.

32.

United States v. Mitchell, 26 Federal Cases 1277 (C.C.D. Penn., 1795).

33.

Stephen B. Presser, "A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence," Northwestern University Law Review 73( 1978):92.

34.

As quoted in ibid., p. 93.

35.

Ibid., p. 92.

36.

Ibid., p. 93.

37.

Ibid., p. 97.

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38.

As quoted in Ellis, Jeffersonian Crisis, p. 15.

39.

Ibid., p. 20.

40.

As quoted in Zainaldin, Law in Antebellum Society, p. 10.

41.

Leonard W. Levy, Thomas Jefferson and Civil Liberties: The Darker Side ( 1963).

42.

As quoted in Ellis, Jeffersonian Crisis, p. 113.

43.

Ibid., p. 113.

44.

Ibid., p. 51.

45.

Ibid., p. 52.

46.

U.S., Constitution, Art. II, sec. 4.

47.

Peter C. Hoffer and N. E. H. Hull, Impeachment in America, 1635-1805 ( 1984). p. 209.

48.

As quoted in Ellis, Jeffersonian Crisis, p. 80.

49.

Charles Warren, The Supreme Court in United States History ( 1947), vol. 1., p. 70.

50.

G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges ( 1976), p. 11.

51.

As quoted in Albert J. Beveridge, The Life of John Marshall ( 1916-1919), vol. 3, p. 144.

52.

Marbury v. Madison, 1 Cranch 177-78 ( 1803).

53.

"Judiciary Act of 1789," in Commager, ed., Documents, p. 154.

54.

As quoted in Dwight F. Henderson, Congress, Courts, and Criminals: The Development of Federal Criminal Law, 1801-1829 ( 1985), p. 28.

55.

As quoted in Presser, "Tale of Two Judges," p. 59.

56.

United States v. Hudson and Goodwin, 11 Cranch 32 ( 1812).

57.

Alexis de Tocqueville, Democracy in America, vol. 1, edited by Phillips Bradley ( 1945 Ed.), p. 290.

58.

Ellis, Jeffersonain Crisis, p. 283.

Chapter 5

1.

St. Hector John de Crevecouer, Letters from an American Farmer ( 1904), pp. 52-56.

2.

Alexis de Tocqueville, Democaracy in America, vol. 2, edited by Phillips Bradley ( 1945 Ed.), pp. 247-48.

3.

Thomas Jefferson, "Inaugural Address," Journal of the Executive Proceedings of the U.S. Senate 1( 1828):393.

4.

James Willard Hurst, Law and Markets in United States History: Different Modes of Bargaining among Interests ( 1982), p. 22.

5.

James Willard Hurst, The Growth of American Law: The Law Makers ( 1951), p. 82.

6.

Harry N. Scheiber, "Property Rights and Public Purpose in American Law," Proceedings of the International Economic History Association, 7th Congress 1( 1978):234.

7.

As quoted in Stuart Bruchey, The Roots of American Economic Growth 1607-1861 ( 1968), p. 125.

8.

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