The Supreme Court under Chief Justice Melville W. Fuller 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.
Pundits of every stripe are busy assessing the impact of
recent changes in the U.S. Supreme Court’s composition. There may be no better
model than the court’s record under the tenure of Chief Justice Melville W.
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 alleged "needs" of the moment? Were our
liberties more secure or less secure after the court did its work?
The Fuller court
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 property
Melville Weston Fuller was born in Maine in 1833, but later
moved to Illinois, where he became a successful attorney. As a Democratic
legislator in Illinois during the Civil War, he opposed secession and slavery
but didn’t believe in quashing dissent and due process to vanquish them. He
opposed protectionism as special interest legislation that hurt consumers. He
scrutinized public spending for waste and favoritism.
In 1888, President Grover Cleveland wanted a chief justice
with an unblemished record of integrity who not only shared his
limitedgovernment philosophy, but also was a good business manager who could
fix the high court’s backlog of cases. Fifty-five-year-old Fuller was precisely
the person Cleveland was looking for.
Fuller charmed his fellow justices with good humor and a
remarkable capacity for friendly persuasion. 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.
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
Antitrust Act. It was left to later courts to distort the commerce clause and
justify federal regulation of virtually every corner of the economy.
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 nanny-state intrusion that was
condescendingly paternalistic toward workers. If workers could be drafted by the
government for military service, why couldn’t they be allowed to decide for
themselves if they wanted to work long hours in a bakery?
The Fuller court was also 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.
In 1895 the Fuller court rejected 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.
In Melville Fuller, the country had a chief justice who
believed in upholding, not remodeling, the Constitution. When he died in office
in 1910, 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.
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.