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Troubled Beginnings of the Modern State, 1888-1910. By Owen M. Fiss.* New York: Macmillan Reference, 1994. Pp. xix, 420. $75.00.
Herbert Hovenkamp*
Volume VIII of the Holmes Devise History of the Supreme Court of the United States covers the period (1888-1910) during which Melville Weston Fuller was Chief Justice. Owen Fiss' book begins with candor. By all accounts, Fuller's Court "ranks among the worst" in Supreme Court history.(1) This was the Court that gave us Lochner v. New York(2) and the development of substantive due process,(3) paranoid hostility toward government regulation of business,(4) and condemnation of the federal income tax.(5) The same Court's opinions interpreted free speech narrowly(6) and fueled the antilabor movement by furnishing the federal government with expansive power to break strikes and by interpreting the antitrust laws to reach and condemn the organization of labor.(7) The Fuller Court contributed the racism of the Chinese exclusion cases, which denied resident Chinese the opportunity to become U.S. citizens,(8) and, worst of all, it wrote Plessy v. Ferguson,(9) which gave constitutional legitimacy to a "separate but equal" segregation statute.(10) The Fuller Court's legacy was an unmatched record of reactionary, bigoted, and rejected precedents, with few brilliant, prophetic decisions thrown in to right the balance.
The Fuller Court represented (until the election of Warren Harding in 1920) the last stand of orthodoxy in the face of the Progressive revolution. Fuller's misfortune was that he and most of his colleagues followed a political ideology that had fallen out of favor, just as the revolution was occurring. Somebody has to end an era. Even so, the Fuller Court gave nineteenth-century legal orthodoxy an ungraceful exit. The problem was not so much that its members were predominantly committed to the common law, suspicious of regulation and the welfare state, and influenced by numerous racial prejudices. All these things could be said equally of Justice Holmes, its most illustrious dissenter. The central problem of the Fuller Court was that it united its prejudices with an expansive and ill-considered conception of judicial power that enabled the Justices to strike down all manner of legislation by employing highly creative interpretations of the Constitution. Then it used that power selectively. For example, "due process" was given a broad and unprecedented meaning in Lochner,...