1. Lochner v. New York, 198 U.S. 45, 75 (1905).

2. Jacobson v. Massachusetts, 197 U.S. 11 (1905).

3. Warren, Charles, “The Progressiveness of the United States Supreme Court,” Columbia Law Review 13 (1913): 294–313CrossRefGoogle Scholar; Warren, Charles, Congress, the Constitution, and the Supreme Court (Boston: Little Brown, 1925)Google Scholar.

4. See, for example, Wright, Benjamin, The Growth of American Constitutional Law (New York: Henry Holt, 1942), 105Google Scholar: “To the end of the year 1898 the significance of the due process and equal protection clauses is not to be measured by the number of statutory scalps hanging at their belts. The latter clause had been responsible for but three decisions of unconstitutionality, and of these one had involved the rights of negroes, one discrimination against Chinese, and only one a railroad. Due process had eight cases to its credit, but only the first involved an issue definitely procedural in character. It is not the number of decisions of unconstitutionality, or even the importance of the interests immediately concerned, but rather the possibilities for the future exercise of judicial review which makes of this period one of the most notable in American and constitutional history.”

5. Lochner v. New York, 198 U.S. 56–57.

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8. Pollock v. Farmers’ Loan and Trust Co., 157 U.S. 429 (1895); 158 U.S. 601 (1895) (holding federal income tax unconstitutional).

9. In re Debs, 158 U.S. 594 (1895) (upholding labor injunction in Pullman strike as permissible use of the Commerce power).

10. See, for example, MacGrath, C. Peter, Morrison R. Waite and the Triumph of Character (New York: Macmillan, 1963)Google Scholar, 133, 201 (The Waite Court “emasculated the Enforcement Acts and the war amendments,” but “never became, wittingly or unwittingly, a tool of business”); Corwin, Edward, “The Supreme Court and the Fourteenth Amendment,” Michigan Law Review 7 (1909): 672CrossRefGoogle Scholar (noting the “irony” that under the Fuller Court, “property, or, calling to mind the Santa Clara case, the corporations succeed to the rights which those who framed the Fourteenth Amendment thought they were bestowing on the negro”).

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18. See, for example, Colby, Thomas and Smith, Peter, “The Return of Lochner,” Cornell Law Review 100 (2015): 536Google Scholar: “By the 1970s, Lochner was firmly part of the anti-canon,…the group of ‘cases that any theory worth its salt must show are wrongly decided’” (quoting J.M. Balkin and Sanford Levinson).

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20. Ibid., x.

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42. Ibid., 411.

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49. Ibid.

50. Ibid., 336.

51. Horwitz, The Transformation of American Law, 1780–1860, 34.

52. Ibid.

53. Ibid., 259.

54. Ibid., 254.

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60. Ibid.

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63. Ibid., 681.

64. Ibid., 681, n. 11.

65. Ibid., 681.

66. Ibid., 684.

67. Ibid., 682.

68. Ibid., 685.

69. Ibid., 681.

70. Ibid.

71. Ibid., 682–83.

72. Ibid., 680.

73. Ibid., 686–87.

74. Ibid.

75. Ibid., 685.

76. Ibid.

77. Ibid., 686.

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92. Urofsky, “State Courts and Protective Legislation During the Progressive Era,” 71–75.

93. Ibid., 75.

94. Ritchie v. People, 155 Ill. 98 (1895).

95. Ritchie & Co. v. Wayman, 244 Ill. 509 (1910); Muller v. Oregon, 208 U.S. 413 (1908).

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100. Ibid.

101. Witt, The Accidental Republic, 134.

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103. Slaughterhouse Cases, 83 U.S. 36, 110 (1872).

104. Forbath, “The Ambiguities of Free Labor,” 778.

105. Ibid., 790.

106. Ibid., 790, 798.

107. Ibid., 798. For the later argument that judges “abandoned the ideology of free labor” at the end of the nineteenth century and acknowledged that capitalists were exploiting wage workers, which enabled them to “undercut the objection that protective legislation was naked class favoritism” and rebut “the presumption in favor of liberty of contract,” see Claudio Katz, “Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era,” Law and History Review 31 (2013): 275–323. Judges, Katz said, became “persuaded that the novel use of state power to redress bargaining inequalities was justified because it was necessary to preserve neutrality and liberty.” Emphasis in the original. Ibid., 280.

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111. Forbath, “The Ambiguities of Free Labor,” 800.

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116. Ibid., 303.

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118. Ibid., 311.

119. Ibid.

120. Ibid., 306.

121. Ibid., 318–19.

122. Ibid., 318.

123. Ibid., 325.

124. Ibid., 331.

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131. Ibid., 7.

132. Ibid.

133. Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993), 10Google Scholar.

134. Ibid., 9.

135. Ibid., 11.

136. Roe v. Wade, 410 U.S. 113 (1973).

137. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

138. Ibid., 867.

139. Horwitz, Morton, “The Supreme Court, 1992 Term: Foreword: The Constitution of Change: Legal Fundamentalism Without Fundamentality,” Harvard Law Review 107 (1993): 75–76CrossRefGoogle Scholar: “Is Lochner indeed a case, so that we can determine which later case overruled it? Or is Lochner a Court in the sense in which we speak of the Warren or Rehnquist Courts? If Lochner were a case, presumably it would have to have been overruled. Yet an inquiry into when it was overruled yields no satisfactory answer. An extremely narrow rendition would argue that Lochner was overruled as early as 1917. In Bunting v. Oregon [243 U.S. 426 (1917)], an equally divided Supreme Court—with Justice Brandeis not participating—sustained a general ten-hour day for manufacturing workers, male and female, and permitted up to three hours of overtime at time-and-a-half pay. The Court did not even mention Lochner. Indeed, there was never again a constitutional challenge to a maximum-hours law…. Not only is there no New Deal decision that overruled Lochner on its facts, but also the conclusion that maximum-hour laws [at issue in Lochner] could be upheld and constitutionally distinguished from minimum-wage laws [at issue in West Coast Hotel v. Parrish, 300 U.S. 379 (1937)] seems to have become acceptable sub silentio much before 1937. Although it would therefore be possible to say that the ‘facts’ involving maximum-hour laws were different from those concerning minimum-wage laws, such a characterization would apply to the Lochner Court a very narrow and unilluminating definition of its scope and meaning. This characterization would simply avoid any of the broader ‘paradigmatic’ questions about the failure of the Lochner Court to recognize the legitimacy of the redistribution of wealth in the regulatory-welfare state. Even if Lochner is a ‘Court’ rather than ‘a case,’ the problem of identification remains. When do we assume that the Lochner Court began?”

140. Planned Parenthood v. Casey, 861–62.

141. Ibid., 864.

142. Ibid., 961.

143. One sign of that was the selection of Horwitz to write the Harvard Law Review’s Foreword after Casey. Oddly, his “historical view” of “what was wrong with Lochner?” (ibid., 77–82) did not allude to what he said about it in second volume of Transformation or other revisionist work. Instead Horwitz focused his attention on “the conceptual outlook of the Court” and the progressive view of Lochner “as a shocking example of the Court's capitulation to big business” and the meaning of Holmes's dissent, which Horwitz said critiqued the majority's “’conceptualistic,’ ‘formalistic,’ and ‘mechanical’ legal reasoning” and “offered a vision of the Court's role that tolerated change but still maintained allegiance to a belief in fundamental constitutional principles.” Ibid., 77, 80, 82.

144. Ringhand, Lori, “The Rehnquist Court: A ‘By the Numbers’ Retrospective,” University of Pennsylvania Journal of Constitutional Law 9 (2007): 1036Google Scholar, 1034.

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146. Fiss, History of the Supreme Court of the United States: Troubled Beginning of the Modern State, 1888–1910, 395.

147. Ibid., 394.

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149. Bernstein, David, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Chicago: University of Chicago Press, 2011), 121CrossRefGoogle Scholar. The book drew from Bernstein's articles on Lochner that began appearing in 1999.

150. Ibid.

151. Siegel, “Let Us Now Praise Infamous Men,” 664.

152. Cushman, Barry, Review, Book, Journal of Economic History 52 (1992): 968CrossRefGoogle Scholar: “For decades preceding the relatively recent collapse of the Progressive synthesis, historians of the late nineteenth- and early twentieth-century Supreme Court claimed that its jurisprudence was driven by two complementary commitments: first, a devotion to the precepts of laissez-faire economics; and second, a sympathetic subservience to the interests of the nation's industrial and financial elites.”

153. Rowe, “Lochner Revisionism Revisited,” 224.

154. Ibid., 224–25, 251.

155. In arguing in 1963 that “the entire ‘procedural’ versus ‘substantive’ dichotomy (a categorization unknown to the law reports of the post-Civil War period), has the air of fiction about it,” C. Peter MacGrath cited Berns as support. MacGrath, Morrison R. Waite, 195, n. 70. See Berns, Walter, Freedom, Virtue and the First Amendment (Baton Rouge, LA: Louisiana State University Press, 1957), 95–102Google Scholar.

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157. Rowe, “Lochner Revisionism Revisited,” 244.

158. Ibid.

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160. Siegel, Stephen, “The Revision Thickens,” Law and History Review 20 (2002): 632CrossRefGoogle Scholar.

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163. Ibid.

164. Ibid., 632–33.

165. White, G. Edward, “The Lost Origins of American Judicial Review,” George Washington Law Review 78 (2010): 1149Google Scholar.

166. Ibid., 1151.

167. Ibid., 1146.

168. Ibid., 1147.

169. Ibid., 1150–51. Emphasis in the original.

170. For example, David Bernstein argued that Lochner-era judges were motivated by a desire to preserve liberty, rather than by an aspiration for neutrality or by opposition to class legislation. Bernstein, “Lochner Era Revisionism, revised: Lochner and the Origins of Fundamental Rights Constitutionalism,” Georgetown Law Journal 92 (2003)Google Scholar: 12: “[T]he primary jurisprudential importance of Lochner was that it moved the Supreme Court away from class legislation analysis of police power legislation to an analysis that relied on the Justices’ understanding of the fundamental liberties of the American people.” Nevertheless, Barry Cushman insisted on the importance of neutrality and class legislation analysis to the judges and justices. Cushman, “Some Varieties and Vicissitudes of Lochnerism,” Boston University Law Review 85 (2005): 943Google Scholar.

171. Roscoe Pound, “Mechanical Jurisprudence,” 610.

172. Radin, Max, “Legal Realism,” Columbia Law Review 31 (1931): 827CrossRefGoogle Scholar. Since not everyone would agree on the realists’ identities, I have avoided describing the progressives’ successors as “legal realists,” though some of the progressives’ successors were legal realists.

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174. Schauer, Frederick, “Formalism,” Yale Law Journal 97 (1988): 509–10CrossRefGoogle Scholar. As a term, “formalism” retained some utility: It still seemed like a stretch to say a formalist age in judicial decision-making during the late nineteenth and early twentieth centuries never existed, as Tamanaha, Brian did in Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton, NJ: Princeton University Press, 2009)CrossRefGoogle Scholar. Brophy contended that Tamanaha largely made his case against the existence of late nineteenth-century formalism from addresses and legal treatises and paid little attention to judicial opinion. Tamanaha responded to that charge in “The Mounting Evidence Against the ‘Formalist Age,’” Texas Law Review 92 (2014): 1667–84Google Scholar.

175. Rabban, David, Law's History: American Legal Thought and the Transatlantic Turn to History (New York: Cambridge University Press, 2013)Google Scholar. The book is a study of legal thought, not judicial decisions, which Rabban excluded from his analysis. Ibid., 525.

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178. “Langdell knew the law too well to instantiate his formalist ideal in jurisprudence, but he understood education too little to doubt that the ideal could be realized in that domain.” Kimball, The Inception of Modern Professional Education, 193, 204–5.

179. Ibid., 399; Rowe, “Lochner Revisionism Revisited,” 239.

180. Mugler v. Kansas, 123 U.S. 623, 662–63 (1887) (statute banning alcoholic beverages did not violate the Fourteenth Amendment rights of brewers). As Loren Beth said, Harlan “gave everything to the laissez-faire advocates except the decision.” Beth, The Development of the American Constitution, 177.

181. Powell v. Pennsylvania, 127 U.S. 678, 697 (1888) (statute regulating the production of oleomargarine did not violate dairymen's Fourteenth Amendment rights).

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184. White, Law in American History, 400.

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221. Could Whigs be Jacksonians? Morrison Waite's biographer believed that “in a very important sense he was a Jacksonian.” Macgrath, Morrison R. Waite, 57.

222. Siegel, “The Revision Thickens,” 633.

223. Cachan, “Justice Stephen Field and ‘Free Soil, Free Labor’ Constitutionalism,” 550.

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237. Theodore Roosevelt, Special Message, December 8, 1908, http://www.presidency.ucsb.edu/ws/index.php?pid=69654&st=: (accessed June 11, 2018).

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244. Ibid., 259.

245. Ibid., 262.

246. Ibid., 264.

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250. While denying his subjects were “legal lackeys” in his insightful book about lawyers’ construction of Supreme Court arguments, Twiss characterized them as “virtually…an inner council containing and representing the intelligence of a class—the dominant economic class” and “missionaries” who brought the doctrine of laissez faire to the Court. Twiss, Lawyers and the Supreme Court: How Laissez Faire Came to the Supreme Court, 142, 148.

251. Wiecek, The Lost World of Classical Legal Thought, 257–58.

252. In addition to Wiecek, see Belz, Herman, “The Constitution in the Gilded Age: The Beginnings of Constitutional Realism in American Scholarship,” American Journal of Legal History 13 (1969): 110–25 (1969)CrossRefGoogle Scholar; Belz, “The Realist Critique of Constitutionalism in the Era of Reform,” American Journal of Legal History 15 (1971): 288–306CrossRefGoogle Scholar; Belz, , “Andrew C. McLaughlin and Liberal Democracy: Scientific History in Support of the Best Regime,” Reviews in American History 19 (1991): 445–61CrossRefGoogle Scholar.

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255. Corwin, Edward, Review, Book, American Political Science Review 7 (1913): 501Google Scholar: “The truth is that he repeatedly abandons his pose to insinuate the worst.” My own favorite example is Myers's discussion of “Private-Car [Horace] Lurton,” who, prior to his Court appointment, was rumored to be “one of the federal Judges traveling extensively in sumptuous private [railroad] cars…Necessarily there is no proof of this charge, or similar charges, in the formal records. Therefore, we do not pretend to vouch for their authenticity, but simply relate them for what they may be worth, true or false.” Myers, History of the Supreme Court of the United States, 731, 732.

256. Myers, History of the Supreme Court of the United States, 8.

257. Edward Corwin, Book Review, 500–2.

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262. “By the 1970s, a caricature of the Progressive critique had become the standard explanation for the Lochner Court's hostility to social legislation and the constitutional crisis that it engendered.” Cachan, “Justice Stephen Field and ‘Free Soil, Free Labor’ Constitutionalism,” 543.

263. Gary Rowe, “Lochner Revisionism Revisited,” 241, n. 23.

264. Benedict, “Laissez-Faire and Liberty,” 293; White, “The Lost Origins of American Judicial Review,” 1147.

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271. “Judge Cooley was very much impressed with Smith, and after Smith had received his PhD invited him to help prepare a new edition of Cooley's A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union…. Unfortunately, before they could begin the task, Judge Cooley became ill and the project had to be dropped.” McClintock, “J. Allen Smith and the Progressive Movement,” 76.

272. Ibid., 104–11.

273. Parrington, Vernon, Main Currents in American Thought: An Interpretation of American Literature from the Beginnings to 1920 (New York: Harcourt, Brace, 1927–1930)Google Scholar. Parrington, however, used Latin for the second half of the dedication:

274. Smith, J. Allen, The Spirit of American Government: A Study of the Constitution, Its Origin, Influence, and Relation to Democracy (London: Macmillan, 1907)Google Scholar.

275. Ibid., 27.

276. Ibid., 165.

277. Ibid., 14.

278. Ibid., 299.

279. Ibid., 108.

280. Ibid., at 99.

281. Ibid., 111.

282. Ibid.

283. Ibid., 185.

284. Indeed another of that Court's progressive detractors, Benjamin Wright, who did not consider the Constitution “reactionary,” accused Smith of reading “the point of view of the Supreme Court of the 1890's back into the attitude of the Framers of 1787.” Wright, Benjamin, Consensus and Continuity, 1776–1787 (Boston: Boston University Press, 1958), 40–42Google Scholar.

285. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895); Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895); Smith, The Spirit of American Government, 114.

286. Smith, The Spirit of American Government, 115.

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288. Dean, Howard, “J. Allen Smith: Jeffersonian Critic of the Federalist State,” American Political Science Review 50 (1956): 1098CrossRefGoogle Scholar.

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290. Ibid., 355–56.

291. Ibid., 355.

292. Ibid., 357.

293. Ibid., 376.

294. Ibid., 378.

295. “Smith has long been considered by the faculty and students at the University of Washington as one of the most capable men on the faculty and besides being highly respected, he is exceptionally popular in spite of the fact he is reserved, not mingling at all in the petty affairs of the undergraduate life.” “Regents Decline to Criticize Smith,” Seattle Daily News, April 17, 1907, 2.

296. “Condemns the Supreme Court,” San Francisco Chronicle, April 17, 1907, 4.

297. “Attack on Supreme Court Arouses Caustic Comment,” Seattle Daily Times, April 16, 1907, 1; “Repudiate Views of University Professor: Lawyers of King County Denounce as Anarchistic Utterances of Dr. J. Allen Smith in His New Book: Are Calculated to Do Inestimable Harm: So Say Men of the Law Who Have Read Arraignment of Highest Tribunal in ‘Spirit of American Government,’” ibid. One of the critics of April 16 recanted after he had read the entire book. “Bausman Reviews Smith's New Book,” ibid., April 24, 1907, 1.

298. “Condemns the Supreme Court.”

299. Dean, “J. Allen Smith,” 1097.

300. “Regents Decline to Criticize Smith.”

301. Goldman, “J. Allen Smith,” 205, n. 53; McClintock, “J. Allen Smith and the Progressive Movement,” 409–10.

302. McClintock, “J. Allen Smith and the Progressive Movement,” 420–24.

303. See generally, Furner, Mary, Advocacy and Objectivity: A Crisis in the Professionalization of American Social Science, 1865–1905 (Lexington, KY: University Press of Kentucky, 1975)Google Scholar; Metzger, Walter, “The 1940 Statement of Principles on Academic Freedom and Tenure,” Law and Contemporary Problems 53 (1990): 12–24CrossRefGoogle Scholar.

304. As Max Lerner said, The Spirit of American Government “was not a great book, as Veblen's books are great or Turner's essay…But it was a courageous book and a dogged one. It hung on to its thesis that the American state had been shaped in its growth by conflicts of interest that were at bottom economic.” Lerner, , “The Supreme Court and American Capitalism,” Yale Law Journal 42 (1933): 675CrossRefGoogle Scholar.

305. McClintock, “J. Allen Smith and the Progressive Movement,” 254–58. According to McClintock, The Spirit of American Government sold more copies than either Herbert Croly's The Promise of American Life (New York: Macmillan, 1909) or Beard's An Economic Interpretation of the Constitution of the United States. McClintock, “J. Allen Smith and the Progressive Movement,” 260.

306. Goldman, “J. Allen Smith,” 207.

307. Ibid., 206–8.

308. Charles Beard, Book Review, Political Science Quarterly 23 (1908): 136–137.

309. Hamilton, Book Review, 153.

310. Smith, The Spirit of American Government, 110–23.

311. Beard, Charles, The Supreme Court and the Constitution (New York: Macmillan, 1912), 203–4Google Scholar.

312. Boudin, Louis, “Government by Judiciary,” Political Science Quarterly 26 (1911): 248CrossRefGoogle Scholar.

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314. Beard, Charles, Introduction to the 1938 Edition, The Supreme Court and the Constitution (New York: Paisley Press for the Facsimile Library, 1938)Google Scholar, vi. Edward Corwin was not so sure. “I am not convinced by Mr. Beard's data that the convention of 1787 thought itself to be concluding the constitutional question decided in Marbury vs. Madison,” he wrote in his review of Beard's book. “On the contrary I believe that the Convention regarded that question as still an open one when it adjourned.” Book Review, American Political Science Review 7 (1913): 330.

315. Charles, and Beard, Mary, The Rise of American Civilization (New York: Macmillan, 1927), II: 13Google Scholar.

316. Beard, Charles, Contemporary American History, 1877–1913 (New York: Macmillan, 1914), 87–88Google Scholar.

317. Warren Harding, Address Accepting the Republican Presidential Nomination, June 12, 1920, http://www.presidency.ucsb.edu/ws/index.php?pid=76198&st=founding+fathers&st1= (accessed June 11, 2018).

318. Beard, An Economic Interpretation of the Constitution of the United States, 324, 149–51.

319. Ibid., 291.

320. Powell, Thomas Reed, Review, Book, Columbia Law Review 13 (1913): 660–61Google Scholar.

321. Ibid., 661.

322. Edward Corwin, Book Review, History Teacher's Magazine 5 (February, 1914): 66.

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324. Beard, Charles, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1935)Google Scholar, vii. Taft was said to have told a reporter that “the facts in the book were true enough, but ‘why did the damn fool print it?’” Barrow, More Than a Historian, 5.

325. Beard, An Economic Interpretation of the Constitution of the United States (1935), xvii.

326. Hofstadter, Richard, The Progressive Historians: Turner, Beard, Parrington (New York: Knopf, 1968)Google Scholar, 216. In answering Hofstadter's question, it seems unfair to take into the equation Beard's oft-quoted 1898 editorial complaint that politicians treated the Constitution as “sacred” when “history tells us that this crowned constitution with its halo has been the bulwark of every great national sin—from slavery to monopoly.” Quoted in Mehotra, Ajay, “Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis,” Consitutional Commentary 29 (2014): 484Google Scholar. He was just a college senior when he wrote that and he spoke “[w]ith the self-righteous indignation of a student editorialist.” Ibid.

327. Hofstadter, The Progressive Historians, 216.

328. Ibid., 216–17.

329. Ross, William, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton: Princeton University Press, 1994), 62Google Scholar.

330. http://www.presidency.ucsb.edu/ws/index.php?pid=29617 (accessed June 11, 2018).

331. Wood, Book Review, 632.

332. Ibid., 637.

333. Brown, Robert, Charles Beard and the Constitution: A Critical Analysis of “An Economic Interpretation of the Constitution” (Princeton, NJ: Princeton University Press, 1956)CrossRefGoogle Scholar; McDonald, Forrest, We the People: The Economic Origins of the Constitution (Chicago: University of Chicago Press, 1958)Google Scholar.

334. Wood, Book Review, 637.

335. Wood, Gordon, The Creation of the American Republic, 1776–1789 (Chapel Hill, NC: University of North Carolina Press, 1969), 606Google Scholar; Murrin, John, “Gordon S. Wood and the Search for Liberal America,” William & Mary Quarterly 44 (1987): 599CrossRefGoogle Scholar: “Although early critics were slow to grasp the point, Creation of the American Republic was an intellectual approach to the Revolution that made social conflict more, not less, relevant to the larger story. The threat of aristocracy, the palpable reality of gentility, and the clash of interests all became central components of Wood's analysis. Wood made Charles Beard credible.” I think Wood would prefer it said that he made J. Allen Smith credible.

336. Wood, Creation of the American Republic, 562.

337. Cornell, Saul, “Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard,” Constitutional Commentary 29 (2014): 387Google Scholar.

338. Ibid., 408.

339. White, “Charles Beard & Progressive Legal Historiography,” 365.

340. Ibid.

341. Ibid.

342. Holton, Woody, Unruly Americans and the Origins of the Constitution (New York: Hill & Wang, 2007)Google Scholar.

343. Klarman, Michael, The Framers’ Coup: The Making of the United States Constitution (New York: Oxford University Press, 2016), xiGoogle Scholar, 608.

344. Ibid., 134.

345. Ibid., 74.

346. Ibid. “It is hard to overstate the extent to which the state crises over tax and debt relief in the 1780s influenced the agenda of the Philadelphia convention.” Ibid., 606.

347. Ibid., 92.

348. Ibid., 246.

349. Ibid., 600.

350. Ibid., 382. Emphasis in the original.

351. Ibid., 381.

352. Ibid., 383.

353. Ibid., 385. A good percentage of “the poor and middling farmers” who fought it, Klarman hypothesizes, may have been moved by the Constitution's inclusion of Article I, Section 10, “which presumably would bar the sort of relief programs that a majority of states had enacted in the mid-1780s and that many farmers probably believed (or knew) had saved them from bankruptcy.” Ibid. As always, Klarman is alert to deviations from his patterns. See, for example, his discussion of the New Hampshire debtor farmers who nevertheless backed ratification. Ibid., 387. Westerners proved less enthusiastic about ratification than Easterners because they were “more supportive of the debtor relief measures that the Constitution prohibited” and because they “reflexively opposed any measures endorsed by easterners, who flaunted their polished manners and superior educations, and outvoted westerners in malapportioned legislatures.” Ibid., 388. Northerners wanted the Constitution more than Southerners because some Southern Anti-Federalists warned that ratification would put slavery “at risk,” and, even more importantly, feared that “northerners would control the national government and use its power—especially those over commerce and treaty making—to the detriment of southern economic interests.” Ibid., 390.

354. Religious dissenters “disproportionately opposed ratification” because the Constitution did not then protect religious liberty, while others who were “religiously devout” maintained that the Constitution afforded too much protection for religious liberty by forbidding any religious test for federal officeholder.” Ibid., 391. Emphasis in the original.

355. Ibid., 396, 466.

356. Ibid., 607.

357. Ibid., 615.

358. Ibid., 609–10.

359. Lowenthal, David, The Past is a Foreign Country (Cambridge, UK: Cambridge University Press, 1985)Google Scholar.

360. G. Edward White, Law in American History, 349.

361. Ibid., 359–60. Emphasis added.

362. Ibid., 360. Emphasis added.

363. Ibid., 369. Despite his Lochner dissent, for example, Holmes did not reject guardian review and “consistently engaged in the same sort of boundary pricking his fellow justices employed in police power/due process cases in the first two decades of the twentieth century, sometimes voting to invalidate state legislation challenged on due process grounds.” Ibid., 410.

364. Ibid., 369. Emphasis in the original.

365. Friedman, Barry, “The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner,” New York University Law Review 76 (2001): 1420Google Scholar.

366. White, Law in American History, 385.

367. Urofsky, Melvin, Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue (New York: Pantheon, 2015), 90Google Scholar.

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369. Ibid., 91.

370. Ibid.

371. Ibid., 105.

372. Smith, Hunter, “Personal and Official Authority: Turn-of-the-Century Lawyers and the Dissenting Opinion,” Yale Journal of Law & Humanities 24 (2012): 511Google Scholar.

373. Ibid., 516.

374. Ibid., 518.

375. Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 685.

376. Ibid., 695.

377. Budd v. New York, 143 U.S 517, 551 (1892).

378. Quoted in Paul, Conservative Crisis and the Rule of Law, 74, n. 31. Brewer was not alone. Aviam Soifer observes, “so many judges wrote so vigorously on the imminent danger of the loss of American individualism and the evils of rampant paternalism from the Gilded Age through the 1920s that it is difficult to choose the best illustration.” Soifer, “The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court,” Law and History Review 5 (1987): 259. Paradoxically and ironically, however, Soifer contends, in crusading against paternalism, the Fuller and White Court majorities enshrined it, along with their own values, and gave themselves broad discretionary power. Ibid., 277, 279.

379. Paul, Conservative Crisis and the Rule of Law, 214.

380. People's Party Platform, http://projects.vassar.edu/1896/peoplesplatform (accessed June 11, 2018).

381. 1896 Democratic Party Platform, http://www.presidency.ucsb.edu/ws/?pid=29586- (accessed June 11, 2018). Debs himself believed that both Debs and Pollock were “absolutely in the interest of the corporations, syndicates, and trusts, which dominate every department of the Federal Government, including the Supreme Court.” Quoted in Papke, David, The Pullman Case: The Clash of Labor and Capital in Industrial America (Lawrence, KN: University Press of Kansas, 1999), 77Google Scholar.

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383. Thompson, Seymour, “Government by Lawyers,” American Law Review 30 (1986): 698Google Scholar, 699.

384. Ross, A Muted Fury, 39, 49.

385. Friedman, “The History of the Countermajoritarian Difficulty,” 1392–93.

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388. “The great mystery of the modern civil liberties movement is not how or why its leaders came to champion free speech,” Laura Weinrib writes. “Rather, it is how the most prominent critics of a hypocritical judiciary came to promote the courts as the last best hope for the class struggle as well as individual rights,” since “[f]or the progressives, the state and the courts were vastly different creatures.” Weinrib, The Taming of Free Speech, 52, 103. Emphasis in the original.

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390. Myers, History of the Supreme Court of the United States, 9, 8.

391. Haines, Charles Grove, The American Doctrine of Judicial Supremacy (New York: Macmillan, 1914)Google Scholar.

392. Lerner, “The Supreme Court and American Capitalism,” 678.

393. White, “The Lost Origins of American Judicial Review,” 1187. See, for example, Boudin, Louis, Government by Judiciary (New York: William Godwin, 1932)Google Scholar, II: 461 (referring to Charles Warren as “that born apologist”); Phillips Bradley, “From Historian to Special Pleader,” reviewing Charles Warren, Congress, the Constitution, and the Supreme Court, supra n. 3, Social Forces 5 (1926): 182: “This is one of the best briefs for the status quo in regard to the Court which has been written.”

394. Louis Boudin, Government by Judiciary, II: 289.

395. Ibid., 514, n. 2.

396. Ibid., 545–46.

397. Ibid., 551.

398. Ibid., 470.

399. Ibid., 404, n. 3; Hamilton, Walton, “Property—According to Locke,” Yale Law Journal 41 (1932): 864, 875CrossRefGoogle Scholar.

400. Howard Graham, “The ‘Conspiracy Theory’ of the Fourteenth Amendment,” 371–403.

401. Ibid., 373–74. See also Graham, Howard, Everyman's Constitution: Historical Essays on the Fourteenth Amendment, the ‘Conspiracy Theory,’ and American Constitutionalism (Madison, WI: State Historical Society of Wisconsin, 1968), 27–34Google Scholar; Beard and Beard, The Rise of American Civilization, II: 113. (In securing the passage of the Fourteenth Amendment, one of its authors, Roscoe Conkling, “the eminent corporation lawyer of New York,” and other “Republican lawmakers restored to the Constitution the protection for property which Jacksonian judges had whittled away and made it more sweeping in its scope by forbidding states, in blanket terms, to deprive any person of life, liberty, or property without due process of law. By a few words skillfully chosen every act of every state and local government which touched adversely the rights of persons and property was made subject to review and liable to annulment by the Supreme Court at Washington, appointed by the President and Senate for life and far removed from local feelings and prejudices.”) Beard had also advanced this argument in Contemporary American History, 1877–1913, 57–59.

402. Graham, “The ‘Conspiracy Theory’ of the Fourteenth Amendment,” 374 (quoting E.S. Bates).

403. Corwin, “The Supreme Court and the Fourteenth Amendment,” 657; Wiecek, The Lost World of Classical Legal Thought, 258.

404. McCloskey, Robert, Essays in Constitutional Law (New York: Vintage, 1957)CrossRefGoogle Scholar, 11. See, for example, Powell, Thomas Reed, “The Logic and Rhetoric of Constitutional Law” Journal of Philosophy, Psychology and Scientific Methods 26 (1918): 645–58CrossRefGoogle Scholar. “The essay was one of the most important in shifting American juristic thought,” Max Lerner wrote in 1933. “The accepted theory of the judicial process had been that the judge was like the oracle of Jupiter at Dodona who, upon being presented with the problem that called for decision, stupefied himself with vapors and listened to the dim voices that came to him: or, in other words, that the judge brought to bear ancient lights to illumine modern instances. Professor Powell's emphasis was that the judge brought to bear his current outlook to manipulate the ancient rules.” Lerner, “The Supreme Court and American Capitalism,” 699, n. 102.

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406. Quoted in Ferguson, Robert, “Holmes and the Judicial Figure,” in The Legacy of Oliver Wendell Holmes, Jr., ed. Gordon, Robert (Stanford, CA: Stanford University Press, 1992), 15Google Scholar.

407. White, Justice Oliver Wendell Holmes, 450 (attributing Holmes's shift toward a more libertarian approach to the First Amendment partially to “his own unfulfilled career expectations”).

408. Brown, Ray, “Due Process of Law, Police Power, and the Supreme Court,” Harvard Law Review 40 (1927): 943–68CrossRefGoogle Scholar; Brown, Ray, “Police Power—Legislation for Health and Safety,” Harvard Law Review 47 (1929): 866–98CrossRefGoogle Scholar; Brown, Ray, “Administrative Commissions and the Judicial Power,” Minnesota Law Review 19 (1935): 261–307Google Scholar.

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410. Quoted in ibid., 9–10.

411. Ibid., 9–27.

412. See, for example, Pound, “Mechanical Jurisprudence,” 605–23; Pound, Roscoe, “The Need of a Sociological Jurisprudence,” Green Bag 19 (1907): 607–15Google Scholar.

413. Brandeis, Louis, “The Living Law,” Illinois Law Review 10 (1916): 461–71Google Scholar. Urofsky identifies Brandeis as the “great practitioner” of sociological jurisprudence. Urofsky, Melvin, Louis D. Brandeis: A Life (New York: Pantheon, 2009), 76Google Scholar. But see Noga Morag-Levine, “Facts, Formalism, and the Brandeis Brief: The Origins of a Myth,” University of Illinois Law Review (2013): 93, 89 (undercutting “the received wisdom…that briefs including extra-legal evidence were largely unprecedented” and showing that “the legal argument—insisting that the law was entitled to a presumption of constitutionality in the first place” was the “Brandeis” brief's “most important line of defense” in persuading the Supreme Court to uphold minimum hours legislation for women in Muller v. Oregon.

414. “I am not a scholar,” Frankfurter informed his friend, Learned Hand, when he received the call to Harvard in 1913. “But, with Pound there, I see this as an opportunity for somebody to help fashion a jurisprudence adequate to our industrial and economic needs.” Parrish, Michael, Felix Frankfurter and His Times: The Reform Years (New York: Free Press, 1982), 61Google Scholar. The Pound-Frankfurter alliance, however, had collapsed by the late 1920s. See Kalman, Legal Realism at Yale 1927–1960, 58–62.

415. Pound, Roscoe, “Liberty of Contract,” Yale Law Journal 18 (1909): 464CrossRefGoogle Scholar: “Jurisprudence is the last in the march of the sciences away from the method of deduction from predetermined conceptions. The sociological movement in jurisprudence, the movement for pragmatism as a philosophy of law, the movement for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles, the movement for putting the human factor in the central place and relegating logic to its true position as an instrument, has scarcely shown itself as yet in America. Perhaps the dissenting opinion of Mr. Justice Holmes in Lochner v. New York is the best exposition of it we have.”

416. Pound, Roscoe, “Law in Books and Law in Action,” American Law Review 44 (1910): 36Google Scholar.

417. Rabban, Law's History, 8: “By promoting ‘sociological jurisprudence’ as an attractive alternative to ‘historical jurisprudence’ in his enormously influential early work during the decade before World War I, Roscoe Pound contributed substantially to the demise of historical explanation in American legal scholarship as well as to what became the prevailing, though importantly inaccurate, view of its role in nineteenth-century legal thought.” While Pound sometimes called for a “‘sociological legal history,’” he effectively doomed “the study of legal history…[to] a long period of decline.” Ibid., 462, 470–71.

418. See, for example, Goodnow, Social Reform and the Constitution, 229–30, 242–44, 24 (distinguishing between US Supreme Court, which upheld a great deal of social reform legislation, and state courts, which might strike it down as unconstitutional): “What the courts actually do in cases in which they declare a law of this sort unconstitutional, is to substitute their ideas of wisdom for those of the legislature, although they continually say that this is not the case.” So, too, Corwin stressed that the United States Supreme Court “is unwilling to act as a third house of Congress” and that Goodnow's book “should be put into the hands of every judge in the land. For a considerable portion of them the mere discovery that the machinery of constitutional exegesis can be utilized to forward the public interest as well as private interests would amount to a genuine revelation.” Book Review, American Political Science Review 6 (1912): 272, 276. Emphasis in the original. See also Dodd, W.F., “Social Legislation and the Courts,” Political Science Quarterly 28 (1913): 5CrossRefGoogle Scholar: “Except for the rather unfortunate lapse in the New York bake-shop case [Lochner], the Supreme Court of the United States has in the main taken a liberal attitude toward legislation aimed to meet new social and industrial needs. Yet there remains the fact that perhaps the greater number of our state courts are illiberal and, under our present constitutional and judicial organization, are able to block needed social and industrial legislation.”

419. McCloskey, The American Supreme Court, 91, 92.

420. Corwin wrote in 1925, “Nowadays almost everybody admits, however grudgingly, that the judges make law, and that not merely in the sense of adding to or subtracting from the suppositious intention of a more or less suppositious law-giver, but also in the sense of determining such additions and subtractions by their own preferences. Those, therefore, have a certain amount of truth on their side who would make legal history a side issue of judicial biography.” Edward Corwin, “Constitution v. Constitutional Theory: The Question of the States v. the Nation,” American Political Science Review 19 (1925): 298.

421. Ibid., 299. Cf. Gillman, The Constitution Besieged, 199: “Focusing exclusively on judicial personalities, idiosyncratic belief systems, or personal policy preferences can lead us to overlook the continuities in nineteenth-century American political culture and the extent to which the justices of the late nineteenth century interpreted the social turmoil of the 1880s and 1890s through an ideological prism developed by another group of social elites in response to the social turmoil of the 1780s.” I am not sure that Corwin and Gillman were so far apart.

422. Beveridge, Albert, The Life of John Marshall (Boston: Houghton Mifflin, 1916–1919)Google Scholar.

423. Newmyer, R. Kent, “The Legacy of Chief Justice John Marshall: A Judge for All Seasons,” William & Mary Law Review 43 (2002): 1483–85Google Scholar.

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426. Fairman's, Charles Mr. Justice Miller and the Supreme Court, 1862–1890 (Cambridge, MA: Harvard University Press, 1939)Google Scholar is an unusually good example. In his laudatory biography of Justice Miller, a progressive favorite, Charles Noble Gregory had lamented that he “was not so fortunate as to get either letters, journals, papers, information, or reminiscences from his kindred or surviving intimates,” except from Miller's nephew. Gregory, Charles Noble, Samuel Freeman Miller, Author's Preface (Iowa City: The State Historical Society of Iowa, 1907)Google Scholar. Miller's daughter and granddaughter allowed Fairman to use Miller's letters, Fairman found the diary of Miller's brother-in-law at the University of Texas, and he raided other archival collections. Fairman, Mr. Justice Miller and the Supreme Court, 1862–1890, vi–vii. So, too, Willard King, though not a progressive, “haunted people having documents or memories of the Chief Justice…with the obstinacy of a hobbyist” for years, received access to thousands of letters from Fuller's granddaughter, and produced an illuminating biography of Fuller that showed him skillfully running the Supreme Court. King, Willard, Melville Weston Fuller: Chief Justice of the United States 1888–1910 xiii (Chicago: University of Chicago Press, 1950), xiiiGoogle Scholar.

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429. Ibid., 373.

430. Fairman, Charles, “The So-called Granger Cases, Lord Hale, and Justice Bradley,” Stanford Law Review 5 (1953): 588CrossRefGoogle Scholar.

431. Ibid., 591–92, 653.

432. Ibid., 591.

433. Ibid., 588; Munn v. Illinois, 94 U.S. 113 (1877).

434. Fairman, “The So-called Granger Cases,” 587–678.

435. MacGrath, Morrison R. Waite, 241–42.

436. Fairman, Mr. Justice Miller, 293–306 (discussing the Presidential ambitions of all).

437. Stephen Field to John Pomeroy, July 28, 1884, reprinted in Graham, Howard, “Four Letters of Mr. Justice Field,” Yale Law Journal 47 (1938): 1107CrossRefGoogle Scholar. Graham discussed Field's Court Packing scheme in “Justice Field and the Fourteenth Amendment,” Yale Law Journal 52 (1943): 877–79Google Scholar. “By one of the strangest paradoxes in American history,” he observed, “the means which President Roosevelt later would have used to eradicate laissez-faire from the Constitution was originally conceived and sponsored by Justice Field as a device to assure its development.” Ibid., 877.

438. Swisher, Stephen J. Field, 247–48.

439. Ibid., 265.

440. Quoted in Paul, Conservative Crisis and the Rule of Law, at 70–71.

441. Westin, Alan, “Mr. Justice Harlan,” in Mr. Justice, ed. Dunham, Alison and Kurland, Philip (Chicago: University of Chicago Press, 1964), 118, 121–22Google Scholar.

442. Corwin, Edward, Constitutional Revolution, Ltd. (Claremont, CA: Claremont Colleges, 1941), 37–38Google Scholar.

443. Ibid., 38.

444. See generally Brodhead, Michael, David J. Brewer: The Life of a Supreme Court Justice 1837–1910 (Carbondale, IL: Southern Illinois University Press, 1994), 107–8Google Scholar; Przybzybsweski, Linda, “Judicial Conservatism and Protestant Faith: The Case of Justice David J. Brewer,” Journal of American History 91 (2004): 471Google Scholar, 482.

445. Swisher served as Special Assistant to Attorney General Homer Cummings from 1935–1937. http://rs5.loc.gov/service/mss/eadxmlmss/eadpdfmss/2012/ms012136.pdf (accessed June 11, 2018). Corwin testified on behalf of Cummings and FDR's Court Packing Plan. “Reorganization of the Federal Judiciary,” in Corwin on the Constitution, II: The Judiciary, ed. Loss, Richard (Ithaca, NY: Cornell University Press, 1987), 218–77Google Scholar. Fairman championed a constitutional amendment that required early retirement of federal judges around during the time of the Court Packing crisis. Aynes, Richard, “Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment,” Chicago-Kent Law Review 70 (1995): 1208Google Scholar; Fairman, Charles, “The Retirement of Federal Judges,” Harvard Law Review 51 (1938): 397–443CrossRefGoogle Scholar. All may have shared the “go slowly” attitude of FDR and the New Deal toward civil rights. Even judging them within the context of their times, however, Randall Kennedy argues that the Waite and Fuller Courts could have accomplished more with respect to civil rights than “the dirty work of undermining the legal structure of Reconstruction.” Kennedy, , “Race Relations Law and the Tradition of Celebration: The Case of Professor Schmidt,” Columbia Law Review 86 (1986): 1649CrossRefGoogle Scholar.

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447. Paul, Conservative Crisis and the Rule of Law, n.p.

448. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

449. Kalman, The Strange Career of Legal Liberalism, 26–37.

450. Ibid., 5–8.

451. Ibid., 5.

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457. Colby and Smith, “The Return of Lochner,” 594, 601.

458. Ibid., 579.

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461. Benedict, “Laissez-Faire and Liberty,” 331.

462. Wiecek, The Lost World of Progressive Legal Thought, 255.

463. See, for example, Kens, “Lochner v. New York: Tradition or Change in Constitutional Law?” 2005.

464. Friedman, “The History of the Countermajoritarian Difficulty,” 1385–87, 1397–1402, 1448–52.

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470. See, for example, Charlie Savage, “Trump Is Rapidly Reshaping the Judiciary. Here's How,” New York Times, November 11, 2017, https://www.nytimes.com/2017/11/11/us/politics/trump-judiciary-appeals-courts-conservatives.html (accessed June 11, 2018).

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