(Note: A condensed version of this essay appears as Mr. Reed’s "Ideas and Consequences" column in the March 2006 issue of The Freeman, the journal of the Foundation for Economic Education and as a March 2006 Mackinac Center Viewpoint.)
In the closing months of this U.S. Supreme Court session, pundits of every stripe will be assessing the impact of recent changes in the court’s composition. If the justices themselves are interested in how they measure up, there may be no better model than the court’s record under the tenure of Chief Justice Melville W. Fuller.
It’s a sad commentary that in the mainstream media, courts are often tagged with confusing and superficial labels, such as "conservative" or "liberal" — terms loaded with political baggage and often manipulated by those with an ax to grind. I prefer more clarifying questions: Does a particular court interpret law or manufacture it? Does the court apply the Constitution according to what the text says, or does the court abandon the text to accommodate current whims, trendy ideologies or alleged "needs" of the moment? Were our liberties more secure or less secure after the court did its work?
The Fuller court, encompassing a parade of justices who came and went during Fuller’s 22 years as chief, was not perfectly consistent on all counts. But more often than any subsequent Supreme Court, it did not stretch either the law or the Constitution beyond what the words said. When the justices found law to be in conflict with the Constitution, they usually sided with the latter, because liberty under the rule of law was their highest priority. The court upheld the importance of a limited federal role, strengthened the role of the states in our federal system and defended contract and property rights against a rising tide of egalitarian agitation.
Melville Weston Fuller was born in Augusta, Maine, in 1833. Both sides of his family were staunch Jacksonian Democrats — hard money and a small federal government being foremost among the principles they embraced. After graduation from Bowdoin College in 1853, Fuller was admitted to the bar in 1855. A year later, he started a successful law practice in Illinois, where he would reside until his elevation to the Supreme Court by President Grover Cleveland in 1888.
As a one-term Democratic legislator in Illinois’ lower house in 1862, Fuller condemned the Lincoln administration’s arbitrary arrests, suspension of habeas corpus and other wartime indiscretions as assaults on liberties guaranteed by the Constitution. He opposed both secession and slavery but didn’t believe in quashing dissent and due process to vanquish them. As a Democratic activist and advisor to candidates for national office, he opposed protectionism as special interest legislation that hurt consumers. He decried irredeemable paper money as a form of theft and fraud, even voting to forbid the State of Illinois from receiving paper greenbacks as payment for state taxes. He scrutinized public spending for waste and favoritism, once earning the wrath of his colleagues by publicly opposing (unsuccessfully) a bill to give gold pens to each member of the Illinois House.
In what biographer Willard L. King terms "the greatest public speech of his career," Fuller seconded the 1876 nomination of Indiana’s Thomas Hendricks for President in unmistakably Jeffersonian terms:
. . . [T]he country demands a return to the principles and practices of the fathers of the Republic in this the hundredth year of its existence, and the restoration of a wise and frugal government, that shall leave to every man the freest pursuit of his avocation or his pleasures, consistent with the rights of his neighbors, and shall not take from the mouth of labor the bread it has earned.
The 1876 Democratic Convention nominated Samuel Tilden instead of Hendricks, but many Democrats around the country remembered Melville Fuller. One of them was Grover Cleveland, America’s 22nd and 24th president. The last Jacksonian Democrat to hold the highest office, Cleveland wanted a chief justice with an unblemished record of integrity who not only shared his limited-government philosophy, but also was a good business manager who could fix the backlog of cases at the high court, which was a full three years behind in its work.
Fifty-five-year-old Fuller, who had argued many cases before the Supreme Court over a 16-year period, was precisely the person Cleveland was looking for. The president admired the fact that in his visits and meetings with Fuller, the lawyer from Illinois had never asked him for anything, even turning down three high posts within the administration. And he had taken considerable public heat in defending the president’s hard money stance and his numerous vetoes of spending bills. To thwart a possible decline by Fuller, Cleveland announced his nomination before Fuller even gave his consent. He was literally dragged into an office for which he didn’t lust but he quickly distinguished himself as one of its most able and important holders.
Fuller charmed his fellow justices with his good humor, thoughtful scholarship, and a remarkable capacity for friendly persuasion and mediation. He began a custom (still in use today) of requiring each justice at the start of a working day to shake the hand of every other justice. Through efficient administration, he solved the problem of the court’s crowded docket.
The Fuller court should be most admired, however, for its jurisprudence. Certainly, Americans who share the Founders’ vision can find much about it to applaud. Fuller himself was at the center of it, often arguing for the majority.
When economic freedom was at issue, the Fuller court did not carelessly allow governmental interference. An example: Prohibitionists in Iowa secured passage of a law forbidding the sale of an interstate shipment of liquor, but Fuller, writing the court’s majority opinion, declared the law a violation of the Constitution’s commerce clause.
In other commerce-related rulings, the Fuller court restricted the application of the almost incoherently broad language of the Sherman Anti-Trust Act. Regulating the terms of interstate commerce and transportation as the Constitution provided for was one thing, but federal meddling in manufacturing and production was quite anathema to Fuller and most of his colleagues. It was left to later courts to distort the commerce clause and justify federal regulation of virtually every corner of the economy.
Every law school student studies the Fuller court’s decision in Lochner v. New York, which is routinely held up as emblematic of "heartless" 19th century laissez faire.New York law made it a criminal offense for both the employer and the employee whenever bakery employees worked more than 10 hours in one day, with no exceptions even for emergencies. Fuller joined the court’s majority in throwing the law out because he saw it as a "featherbedding" nanny state intrusion that was condescendingly paternalistic toward workers. If workers could be drafted by the government to put their lives on the line in battle, why couldn’t they be trusted to decide for themselves if they wanted to work long hours in a bakery?
The Fuller court staunchly defended the sanctity of contract by treating it, in the words of Vanderbilt University law professor and biographer of the court James W. Ely, Jr., "as the controlling constitutional norm." The court resisted attempts at congressional price- and rate-fixing. It once unanimously threw out a Louisiana law that prohibited a person from obtaining insurance from a company that was not qualified to do business in that state. The justices’ feelings in this regard were summed up in a ruling in another case in which the majority declared, "The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Likewise, the court was far more respectful of property rights in eminent domain cases than was last year’s Supreme Court majority, which shredded the Constitutional requirement that eminent domain be used for public, not private, use.
Liberty of contract was a burning passion of Rufus W. Peckham, one of Fuller’s closest allies on the court and another Cleveland appointee. He spoke for the court in the Louisiana case mentioned above, defining liberty under the Fourteenth Amendment in eloquent terms:
The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.
One of the finest moments of the Fuller court was its rejection in 1895 of a federal income tax passed the previous year. Pleas that Congress needed the money and egalitarian claims against other people’s wealth carried little weight with the court. The Constitution forbade direct taxation of that kind, and that was enough to overturn the tax.
In Melville Fuller, the country got just what it and President Cleveland expected in 1888 — a chief justice who believed in upholding, not remodeling, the Constitution. What he said in his 1876 endorsement of Hendricks was pretty much the way he and his court ruled from 1888 to 1910. When he died in office, he was the same man he had been 22 years before, in that he didn’t succumb to temptations of power and ego by discovering vast new constitutional duties for the federal establishment to inflict on the people. He and most of his colleagues took seriously their oaths to defend the supreme law of the land, a notion that seems sadly quaint in an age where sweeping judicial activism is a mainstream law school principle.
If the Roberts court can measure up to the Fuller court, America and our liberties will be the better for it.
Lawrence W. Reed is president of the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.