The Revision Thickens

STEPHEN A. SIEGEL

In the last third of the twentieth century, the Progressive historians' account of Gilded Age law was overthrown by three interrelated strands of revisionist scholarship. One strand, which originated in work by Alan Jones, Charles McCurdy, and Les Benedict, thoroughly revised our understanding of Gilded Age constitutional development.1 Another strand, led by Robert Gordon, Thomas Grey, and Morton Horwitz, reformed our view of Gilded Age private law.2 The final strand, first elaborated by Duncan Kennedy, explored the unity of Gilded Age public and private law.3 Taken as a whole, these mutually supporting lines of revisionist scholarship established a new standard history of Gilded Age legal development, the premises and conclusions of which may be summarized as:	1
(1) Ideology is a causative factor in legal history. In stark contrast to the Progressive historians, the revisionist scholars maintained that, in developing Gilded Age law, lawyers, judges, and legal scholars were guided by ideas and ideals, not their material self-interest. (2) In public law, Gilded Age jurists 4 elaborated Jacksonian equal rights, free labor ideology into a body of principles and doctrines that has become known as laissez-faire constitutionalism. Laissez-faire constitutionalism was not arbitrarily imposed on the nation by jurists crassly seeking to promote the economic interests of the Gilded Age's emergent corporate plutocracy. Rather, it reflects the application of principles opposed to laws favoring any class of citizens, principles that had a respectable heritage in antebellum, and, some say, even Founding era, America. (3) In private law, Gilded Age jurists also developed a free-enterprise-friendly body of legal doctrine, but advanced it as the natural outcome of their scientific approach to legal decision making. The Gilded Age "law as science" movement rose to prominence with the appointment of its foremost exponent, Christopher Columbus Langdell, as dean of the Harvard Law School in 1870. Langdell, and the faculty he hired to modernize legal education at Harvard, taught that the resolution of legal questions should be through a logical and apolitical elaboration of abstract legal principles into concrete legal rules. The abstract legal principles that provided the premises of legal reasoning were themselves analytically determinable through an inductive study of appellate court case reports. Langdellian legal science taught not only "that law is a science," but "that all the available materials of that science are contained in printed books." 5 According to this theory, law libraries were to jurists what "laboratories. . . [were] to the chemists and the physicists, the museum of natural history to the zoologists, the botanical garden to the botanists." 6 (4) Gilded Age public law and private law were fundamentally consistent and intimately related in that both sought to advance liberal, Lockean values through a "rationalistic ordering of the whole legal universe." 7 Due to its comprehensive rationalism, Duncan Kennedy named the Gilded Age's unitary approach to law "classical legal thought." The central message of the scholars who established the overall unity of Gilded Age law is that laissez-faire constitutionalism was classical legal thought's public law expression while Langdellian legal science was its private law expression.
There are, by now, many articles and books devoted to elaborating and comprehensively stating the new standard history of Gilded Age public and private law.8 In addition, there is a growing body of literature suggesting substantial refinements, dare I say revisions of the revision, that need to work their way into the conventional wisdom if the Gilded Age's new standard history is to avoid becoming a thoughtless mantra, a rote explanation for all interpretive questions.9 The articles by Cachán and Grossman are part of this emergent scholarship. Both contribute to developing lines of scholarship refining the notion that "Jacksonian, radical antislavery"10 ideology was the ur-source of Gilded Age constitutional law. Grossman's article, in addition, lends support to scholarship challenging the notion that Langdellian legal science was the major underpinning of Gilded Age private law.	2
In the new standard history, Justice Stephen Field--more than any other lawyer, judge, or legal scholar--serves as the primary example of a Gilded Age jurist drawing his laissez-faire constitutionalism from Jacksonian equal rights ideals and "Free Labor, Free Soil" ideology.11 Given Field's prominence in the new standard history, Cachán's focused review of the substantial evidence suggesting that Field was neither a Jacksonian, nor much of a "Free Labor, Free Soil" constitutionalist, is a major challenge to the new model's factual underpinnings. Cachán also exposes an important flaw in the new model's philosophical foundation by reminding us that tracing laissez-faire constitutionalism to Jacksonian norms "implicitly reject[s] the critical Realist claims for the indeterminancy of legal rules."12	3
The core of Cachán's argument is that Field was not the antimonopolist that the new standard history requires him to be, and, more subtly, that once slavery was eliminated by the Civil War, "Free Soil, Free Labor" rhetoric tended to merge with laissez-faire ideology. Cachán demonstrates the former claim by reviewing the many decisions in which Field preferred large-scale enterprises, even de jure monopolies, over individual economic interests. He supports the latter by showing that in Field's most famous antiregulatory opinions, Field drew as much from Adam Smith's economic writings as he did from Jacksonian political principle.13	4
Cachán's article makes clear that the connection between Jacksonianism and laissez-faire constitutionalism is not straightforward. When the new standard history traces laissez-faire constitutionalism to Jacksonian ideology it must be understood as making only a loosely deterministic claim. Ideology may influence, rather than compel, legal development through complex pathways. 14 This view is fundamental to the growing literature suggesting refinements to the Gilded Age's new standard legal history. In regard to Gilded Age constitutionalism, the loosely deterministic view is implicit in what Charles McCurdy's later writings on Gilded Age law suggest 15 and what Paul Ken's recent book, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age, 16 maintains at length: that antebellum Jacksonianism influenced postbellum public law development in diverse and contradictory ways.	5
As McCurdy and Kens maintain, due to postbellum economic development, principally the rise of large-scale enterprise, antebellum Jacksonianism split into two contending strands in the Gilded Age.17 One strand, favoring the acumen of individuals who created and led large corporations, continued the Jacksonian tradition of conceiving the state as the only threat to individual liberty. To this group, the only form of business enterprise that was dangerous to the public welfare was enterprise to which the state had expressly granted monopoly privileges. The other strand thought of all large-scale enterprises as powerful de facto monopolies that threatened individual liberties. This latter group, in a major modification of its Jacksonian inheritance, turned to the state to tame and regulate large-scale enterprise. This latter strand was the more dominant. According to Kens, who considers much of the evidence highlighted by Cachán, Field was an exponent of the first strand, that is, the more antiregulatory, but less dominant, group. Field, in Kens's view, was enamored with large-scale enterprise as long as it did not have express state-granted monopoly privileges.18	6
McCurdy and Kens show that both the Gilded Age proponents and opponents of state regulation were able to present themselves as the true elaborators of Jacksonian principles. In the Gilded Age, Jacksonian free labor ideology was a contested concept with multiple meanings. With this recognition, we have the beginning of a more textured and multifaceted understanding of how the Gilded Age evolved its Jacksonian inheritance. We also have more basis for appreciating that ideology influences history by constraining and conditioning, not determining, beliefs and actions.	7
Lewis Grossman's article further illustrates the existence of multiple strands within the Gilded Age's dominant belief system. Most obviously, it is revealed by Grossman's seminal demonstration that James Coolidge Carter's laissez-faire constitutionalism was predicated on the survival of Whig, as well as Jacksonian, values. Grossman shows how Carter blended the two antebellum political persuasions together in fashioning an ideology that was unique to his time and place, the ideology of the Mugwump gentleman reformer.19	8
Grossman's portrait of Carter captures him as a unique individual while it sheds substantial new light on his time and place. Carter's series of skirmishes with David Dudley Field, for example, helps us understand that in the late nineteenth-century codification debates, the defenders of the common law had both plausible abstract arguments and very concrete realpolitik reasons for suspecting the bona fides of the proposed codes. Similarly, Grossman's description of Carter's "ambivalent embrace of laissez-faire"20 gives further grounding for the growing scholarly realization that the Lochner era was far more receptive to economic regulation than the traditional account acknowledges.	9
It is also important that resuscitating Carter's standing as a significant figure in the late nineteenth-century legal establishment adds to our understanding of the multiplicity of jurisprudential stances that underlay Gilded Age private, as well as public, law. Grossman's sensitive rendering of Carter's take on historical jurisprudence enlarges our appreciation of the diversity that typified Gilded Age legal thought.	10
In the new standard history, the Gilded Age's "law as science" movement is singularly identified with Christopher Columbus Langdell, who is treated as if he introduced it full blown at his appointment to the Harvard Law School deanship in 1870.21 Grossman's depiction of Carter's private law jurisprudence adds support to recent scholarship arguing that neither Langdell, nor Langdellian legal science, was as central to Gilded Age private law development as the new standard history asserts.	11
In a recent article, I have argued that Langdell's own approach to legal science was an oddity in Gilded Age America because of the extent to which it was predicated on separating law from social mores and morals. Most Gilded Age lawyers, judges, and scholars, even Langdell's colleagues at the Harvard Law School, believed law was deeply embedded in moral considerations and the moral predilections of the society it governed. In addition, in other articles, I have argued that, although Langdell was joined by his Harvard colleagues in conceiving law as an entirely secular phenomenon, they were a distinct minority in adopting this position. Most Gilded Age lawyers, judges, and legal scholars were like Carter: traditionally religious and believing in an intimate connection between divine will and Western legal principles. Finally, many Gilded Age jurists agreed with Carter that law evolved under a diverse set of permanent principles that the Deity had implanted in each of the world's various races and nations at the creation.22	12
In the future, I believe we will come to appreciate that historical jurisprudence was the dominant form of legal thought in the Gilded Age. If so, we will also come to appreciate that currently neglected figures like Carter may well be more exemplary Gilded Age legal thinkers than the much studied Langdell.23 In the late nineteenth century, Langdell's secularism and his amoral, positivist understanding of legal rules were an emergent form of legal thought. For good or for ill, they were the wave of the future. Because the secular, positivist aspects of Langdell's legal thought still resonate with us, his "law as science" jurisprudence is more accessible to us than historical jurisprudence, which grounded itself in tenets that are today wholly repudiated. But that does not mean that Langdellian legal science was the Gilded Age's mainstream jurisprudence. Langdellian legal science became the last surviving form of classical legal thought, and therefore the ultimate target of those seeking to overthrow classical orthodoxy. At its inception, however, other versions of classicism dominated American legal thought.	13
That neither Justice Stephen Field nor Christopher Columbus Langdell were paradigmatic Gilded Age legal figures, and that a theistically based, historico-political form of jurisprudence was the most prevalent form of Gilded Age legal consciousness, is not the only important development in the present wave of scholarship focused on Gilded Age law. There is, for example, William Novak's suggestion that the Gilded Age witnessed the transition from local to state and national regulation of property, a transition implemented through a shift from a community-based, common law constitutionalism to our modern individualistic and text-based constitutional law.24 There is also Bruce Kimball's ongoing reconstruction, drawn from newly uncovered archival sources, of exactly what transpired at Langdell's Harvard Law School.25	14
In general, the new scholarship shows that Gilded Age law and legal development was the outcome of diverse contributions. At the least, the current revisionism is rendering a simple portrait more complex. It is replacing an overarching theoretical structure, which is the type of historiography that modern historians tend to spurn, with their much beloved "thick description."26	15
Stephen A. Siegel is a professor at DePaul University College of Law. Notes 1 See, e.g., Alan Jones, "Thomas M. Cooley and Laissez-Faire Constitutionalism: A Reconsideration," Journal of American History 53 (1967): 751; Charles McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism," Journal of American History 61 (1975): 972; Michael Les Benedict, "Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 (1985): 293-331. Manuel Cachán and Lewis Grossman discuss this strand. Manuel Cachán, "Justice Stephen Field and 'Free Soil, Free Labor Constitutionalism': Reconsidering Revionism," and Lewis Grossman, "James Coolidge Carter and Mugwump Jurisprudence," Law and History Review 20 (2002): 541-76 and 577-629. 2 See, e.g., Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920," in Professions and Professional Ideologies in America, 1730-1940, ed. Gerald L. Geison (Chapel Hill: University of North Carolina Press, 1983); Thomas Grey, "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 1; Morton Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992). 3 Duncan Kennedy, "Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940," Research in Law and Sociology 3 (1980): 3. 4 "Jurists" refers to lawyers, judges, and legal scholars collectively. 5 Christopher Langdell, "Harvard Celebration Speech," Law Quarterly Review 3 (1887): 123, 124. 6 Ibid. 7 Kennedy, "Toward an Historical Understanding," 3. 8 See, e.g., Owen Fiss, Troubled Beginnings of the Modern State, 1888-1910, vol. 8 of History of the Supreme Court of the United States (New York: Macmillan, 1993); William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937 (New York: Oxford University Press, 1998). 9 Some of this literature is discussed in the remainder of this commentary. 10 Cachán, "Justice Stephen Field," 547, n. 20 (quoting McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations," 973). 11 See, e.g., McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations"; Howard Gillman, The Constitution Beseiged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993), 7-8, 64-75. 12 Cachán, "Justice Stephen Field," 544. 13 Ibid., 544, 559-64, 567-69, 571-73, 576. 14 For example, by setting up historically contingent understandings of ideas and doctrines. See, e.g., Daniel Ernst, Book Review, "The Critical Tradition in the Writing of American Legal History," Yale Law Journal 102 (1993): 1019, 1028-34 (reviewing Morton Horwitz's views); G. Edward White, Book Review, "Transforming History in the Postmodern Era," Michigan Law Review 91 (1993): 1315, 1320-27 (same). 15 See, e.g., Charles McCurdy, "The 'Liberty of Contract' Regime in American Law," in The State and Freedom of Contract, ed. Harry N. Scheiber (Stanford: Stanford University Press, 1998), 161, 167-79. Cachán, "Justice Stephen Field," 547, n. 20, mentions McCurdy's later scholarship. 16 Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997), 8. Cachán, "Justice Stephen Field," 545, n. 13, notes Kens's scholarship. 17 Kens, Justice Stephen Field; McCurdy, "The 'Liberty of Contract' Regime." The following account relies most heavily on Kens, who has written the most detailed analysis. It is consistent with McCurdy's more general remarks. 18 Kens also accounts for Field by modifying another tenet of the new standard history--that Field and other Gilded Age jurists were driven by ideology, not self-interest. In some instances, self-interest does motivate Kens's Field. However, Field's self-interest was not to be a minion of the corporate elite, but to use his judicial position to advance his presidential ambitions. In Kens's analysis, Field crafted his state's rights opinions to promote his presidential ambitions, which required southern support. See Kens, Justice Stephen Field, 181-96. In sum, Kens gives us a textured study of a justice motivated by both ideology and self-interest. 19 See Grossman, "James Coolidge Carter," 591-95, 602-6. 20 Ibid., 619. 21 See Stephen Siegel, "John Chipman Gray and the Moral Basis of Classical Legal Thought," Iowa Law Review 86 (2001): 1513, 1515 (discussing private law historiography). 22 See Grossman, "James Coolidge Carter," 595, 606-11; Siegel, "John Chipman Gray;" idem, "Historism in Late Nineteenth-Century Constitutional Thought," Wisconsin Law Review 1990: 1431 (discussing such leading public and private law scholars as John Norton Pomeroy, Thomas McIntyre Cooley, and Christopher Tiedeman); idem, "Joel Bishop's Orthodoxy," Law and History Review 13 (1995): 215; William LaPiana, "Jurisprudence of History and Truth," Rutgers Law Journal 23 (1992): 519, 537-54 (discussing Philemon Bliss, Edward Phelps, John F. Dillon, and James C. Carter). 23. This is not to say that Carter's version of historical jurisprudence was typical. This point is important in that Grossman, "James Coolidge Carter," 627, hints that Carter's version of historical jurisprudence was not consistent with the tenets of classical legal thought. I suggest that historical jurisprudence, as it was conceived by most Gilded Age jurists, was consistent with, indeed it was a strand of, classical legal thought. The earliest historical jurists, the German Pandectists, were very systematic and conceptualistic formalists. Historical jurisprudence was one of a variety of distinct jurisprudences that exemplified Gilded Age classical orthodoxy. (Langdell's "law as science" jurisprudence was another.) See, e.g., Francis Wharton, Commentaries on Law (Philadelphia: Kay and Brother, 1884); Mathias Reimann, "Nineteenth-Century German Legal Science," Boston College Law Review 31 (1990): 837; Siegel, "Historism." Carter was a late proponent of historical jurisprudence and may illustrate that jurisprudence as it was decaying into modern positvism. It was Carter's late or idiosyncratic take on historical jurisprudence that arguably places him outside the fold of classical legal thought. 24 See William Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press), 235-48. 25 See Bruce Kimball, "Warn Students That I Entertain Heretical Opinions, Which They Are Not to Take as Law": The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870-1883," Law and History Review 17 (1999): 57. 26 On thick description, see Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973); Ronald Walters, "Signs of the Times: Clifford Geertz and Historians," Social Research 47 (1980): 537.

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