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Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins Of Laissez-Faire Constitutionalism


Until recently, historians of American constitutionalism agreed that, except for the infamous Dred Scott decision, the most unfortunate decisions of the Supreme Court were those that incorporated the notion of laissez-faire into the Constitution in the late nineteenth century. These decisions permitted the Court to frustrate efforts to secure a more just economic order in the United States until the 1930s. The intellectual foundations of laissez-faire constitutionalism have been so alien to most legal scholars since the 1930s (and equally unintelligible to many even earlier) that they have found it difficult to believe these decisions were the result of efforts to enforce ‘neutral’ principles of constitutional law, to utilize the terms of Herbert Wechsler's famous analysis. They could not conceive of the Court's rhetoric about liberty and due process as anything but cant, a subterfuge designed to camouflage other purposes.

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Herbert Wechsler , ‘Toward Neutral Principles of Constitutional Law’, 73 Harvard Law Review 135 (1959)

Max Lerner , ‘The Supreme Court and American Capitalism’, 42 Yale Law Journal 669–701, 672 (1933)

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Edward S. Corwin , ‘The Doctrine of Due Process before the Civil War’, 24 Harvard Law Review 366–85. 460–79 (1911)

Morton J. Horwitz , ‘The Rise of Legal Formalism’, American Journal of Legal History 19 (1975) 251–64

Paul Brest , ‘The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship’, 90 Yale Law Journal 1063–1109, 1086 (1981)

Thomas C. Grey , ‘Do We Have an Unwritten Constitution?27 Stanford Law Review 703–18, 706–10 (1975)

Harry H. Wellington , ‘Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication’, 83 Yale Law Journal 221–311, 270311 (1973)

Calvin Woodard , ‘Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State’, 72 Yale Law Journal 286–328, 288 (1962)

Alan Jones , ‘Thomas M. Cooley and the Michigan Supreme Court: 1865–1885’, American Journal of Legal History 10 (1966) 97121

Lloyd J. Mercer , Railroads and Land Grant Policy: A Study in Government Intervention (New York, 1982) 3267

Lee Benson , Merchants, Farmers, and Railroads: Railroad Regulation and New York Politics, 1850–1887 (Cambridge, Mass., 1955)

Robert Green McCloskey , American Conservatism in the Age of Enterprise (Cambridge, Mass., 1951) 121

Franklin D. Jones , ‘Historical Development of the Law of Business Competition’, 35 Yale Law Journal 905–38 (1926)

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
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