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FORUM: COMMENT
The Long Life of Liberal America: Law and State-Building in the U.S. and England
WILLIAM E. FORBATH
| Reports of the Strange Death of Liberal America are greatly exaggerated. James Henretta's essay of that title offers a shrewd and insightful portrait of Charles Evans Hughes. But the liberalism whose death Henretta reports did not die. And the "statist," "centralization," "economic planning," and broad "social insurance" minded liberalism he reports as prevailing did not prevail. From a certain lofty altitude (and rueful attitude), all "big," "modern" "welfare states" look the same. That is Henretta's viewpoint. His wonderfully suggestive comparative framework has as one of its premises that America and England proceeded along the administrative-and-welfare-state-building path at different paces but arrived at the same destination. For me, a comparison of the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England prompts different conclusions. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by that ambivalent (and lawyerly) brand of American liberalism Henretta rightly attributes to figures such as Hughes and Roscoe Pound—poised between "progressive" commitments to social reform, social provision, and administrative-state-building, on the one hand, and older, "classical" liberal commitments to limited (and decentralized, dual federalist) government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. My notion is that this "transitional" and "forgotten" liberalism and its champions won more important battles than they lost against their "statist" rivals. A "strange death," indeed! |
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I'll begin with a few comments on Charles Evans Hughes and Henretta's characterization of his constitutional outlook. Then, I'll offer a condensed sketch of some salient differences between the English and American histories of twentieth-century state-building and their respective outcomes. The architecture of what we've come to call the "New Deal" state and of America's system of social provision was not the product of robust New Deal liberalism. If New Dealers had been able to design the state according to their specifications, its institutions (and their justificatory language) would have looked dramatically different—more like England's and like the picture Henretta paints of American developments. We better understand the state that actually emerged in the U.S. as the product of a half-century of conflict and accommodation between the new liberalism of Progressive and New Deal reformers and the old or "classical legal liberalism" of the Lochner Constitution, and the jurists, lawyers, policymakers, and politicians who hewed to it. The modern American welfare and regulatory state was not one that any single group intended or envisioned; but it bore the deep imprint of Lochner's diverse defenders and the court- and common law-dominated institutional order they fought to preserve. Small wonder, then, that members of the legal elite, such as Hughes and Pound who combined vast energy, abilities, and ambition with a self-conscious and astute positioning of themselves as mediators between old and new liberalisms, left such durable legacies.
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| To gauge Henretta's thesis, one must ask what was Hughes's cause, and what part of it was lost: what old "new liberal" political or constitutional principles, which he prized, suffered defeat at the hands of the New Dealers? Hughes's outlook is not well-rendered by the distinctions on which Henretta often relies: between "regulation" versus "redistribution"; or between court-enforced "regulation" versus "statist," "bureaucratic" measures, such as the Social Security and National Labor Relations (Wagner) Acts, which, on this account, Hughes supported only reluctantly. |
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Hughes's outlook was more lawyerly, sophisticated, and fluid. He was a consummate elite lawyer/reformer: making social reform, redistribution, and the administrative state safe for the Court, the inherited Constitution, and the social and political authority of the elite bar and bench; and vice versa. It was not centralization but "completely centralized government" that he condemned; not bureaucracy, but bureaucratic power unconstrained by the courts and a large infusion of (judicially modeled) due process; not "redistribution" but raw class-based power politics. Thus, Henretta suggests that for Hughes the Social Security Act of 1935 embodied a frightening new form of centralized, "redistributive class politics." The impulse scared him, but not the statute. In fact, the drafters of the statute crafted it to occupy Hughes's constitutional middle ground, including his commitment to measured, but genuine, federalism-based decentralization. FDR and the more "modern liberal" New Dealers were irked by the decentralizing features of the Act, which they were never able to undo. Thus, Hughes could—and apparently did—find not defeat but vindication in the final shape of New Deal social provision.1 |
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The bureaucratic and collectivist dimensions and potentialities of the Wagner Act may have given Hughes pause (we will return to them), but not the Act's sweeping reach, to which Hughes contributed the defining judicial gloss in a characteristic meld of old and new doctrinal discourses. For instance, Jones & Laughlin (1937) and West Coast Hotel v. Parrish (1937) were not only his most famous opinions; they were also emblematic of his precedent- and common law-minded conception of constitutional change-within-continuity and continuity-within-change. No less so are his decisions in cases like Crowell v. Bensen (1932), which linked Hughes to the conservative old liberals and which played a critical part in the infusion of old-liberal, legalist due process norms into the heart of the new state apparatus.2 |
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Thus, my thesis: Henretta is right to situate Hughes in between old, classical liberal commitments and robust New Deal liberalism but wrong in his view that this in-between liberalism died and vanished in the fashion of England's Liberal Party after the rise of Labour. Instead, this lawyerly and in-between brand of liberalism found enduring expression in several salient features of the American welfare state that the New Deal Era bequeathed us, features that also distinguished it from England's.
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| Writing in the aftermath of World War II, as Britain expanded its welfare state and deepened its commitment to full employment, the sociologist T. H. Marshall set out his famous theory of citizenship.3 Citizenship, according to Marshall, evolved in three stages. The first, civil citizenship, emerged in the eighteenth century, bringing with it civil rights of property, due process, and personal liberty. The second stage, political citizenship, was a nineteenth-century achievement that expanded rights of political participation through the franchise. Social citizenship, the third and final stage, was being completed in the mid-twentieth century. It encompassed "the whole range [of social rights] from the right to a modicum of economic welfare and security to the right to live the life of a civilized being according to the standards prevailing in the society."4 Social citizenship, in Marshall's terms, was "at war" with class inequality.5 |
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Over the post-war decades, Britain and Western Europe went a long way toward creating institutions of social citizenship. During those same decades, working people in the core sectors of America's industrial economy increasingly enjoyed a robust measure of privately constructed job security, pension rights, and private health insurance—a private welfare state that surpassed England's and western Europe's public systems in several areas. Social citizenship and social rights, however, remained largely foreign to American institutions. Compared to Britain, and to the capitalist democracies of continental Europe, America's public welfare state remained a segmented, paltry, and partial affair. Among the democracies of the post-war world, only the U.S. did not institute an economic policy that gave first priority to full employment. Likewise, the U.S. did not enact compulsory health insurance. More broadly, the U.S. relied extensively on private insurance and private employer-administered benefits programs—often publicly subsidized—to provide for the health, old age, accidents, and disabilities of a large and fortunate swathe of its citizenry. England and the rest of the world's advanced capitalist democracies turned far more to public social insurance. |
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Marshall's narrative has not unfolded in the U.S. Public social provision has remained largely outside the dignifying aura of citizenship, and social citizenship still sounds oxymoronic to American ears.6 "Welfare" is a ground of disrespect, a threat to citizenship, not its realization. In matters social and economic, our rights talk has remained firmly embedded in the older liberal language of contract; one must earn one's "modicum of economic welfare and security." Yet, one has no right to remunerative work. What the market giveth, it may take away, and those who do not earn enough to support themselves and their families are widely seen as unworthy of full membership in the American community. |
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Today, the welfare state is under assault throughout Western Europe. America's system of welfare, labor and employment law, and social insurance is dubbed "the American model," and many policymakers on the other side of the Atlantic envy its "flexibility," unencumbered by their denser labor market regulations and government-enforced social and economic rights. Yet, the heirs of twentieth-century social citizenship in Britain and the rest of Western Europe are not prepared to abandon the social dimension of citizenship guarantees. That is the nub of Blair's "third way" and of Germany's "social market" discourse. Likewise, the new European Constitution will contain a charter of "social rights." The battle is not about whether to include such guarantees but about how far they should be administered and enforced at the national versus supra-national level. Whatever may come of these present trends—and many see an "Americanization" of English and Western European social policy—one should not project the present into the past; one should not assume, as Henretta does, that the institutional and ideological results of the 1900s–1940s welfare-state-building enterprise were the same here and in England. In England, Marshall's social citizenship essays, along with the Beveridge Report, which provided the policy blueprints for social citizenship, became instant classics. Their American analogues were discarded and forgotten. The rights discourse, policies, and institutions of the American "welfare state" unfolded along a different path. |
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Before examining the two states' paths of development, consider one further difference in the outcomes. How did each state set about administering and enforcing its safeguards and assurances against accidents and the hazards of life? To an astonishing extent, America relied on courts and private litigation. The authority of non-judicial public officials over accident prevention and compensation remained modest. Instead, under the auspices of judges, lawyers, and an individualistic common law discourse, we, again, created a largely private system of risk-spreading—administered by private commercial insurance companies and their attorneys, on the one hand, and the personal injury bar, on the other. Thus, like our trans-Atlantic counterparts, we bureaucratized the world of injury and compensation. But, rather than replacing the nineteenth-century liberal individualism of common law adjudication with the actuarial discourse of insurance, we melded the two. In the process, we kept administration largely in the courts and in private hands. Even where non-judicial public officials did gain authority, we judicialized the way these public officials exercise administrative power. As comparative scholars like Robert Kagan have documented, ours is an administrative state whose singular, defining attribute is "adversarial legalism."7 And as Cass Sunstein has remarked, "One of the greatest ironies of modern [American] administrative law—an area whose origins lay in a substantial repudiation of the common law—is its continuing reliance on common law categories."8
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| The stubbornly durable authority of judicial processes and common law categories and baselines did not seem secure a century ago, when the U.S., like England, saw a great spate of welfare-state-building initiatives. Both nations were addressing the momentous "social question"—how to secure citizens of a burgeoning industrial society (or enable them to secure themselves) against exploitation, poverty, and the hazards of accidents, illness, unemployment, and old age.9 For its part, the U.S. witnessed an epidemic of industrial accidents during the decades bracketing the turn of the last century.10 New state labor bureaus and commissions and Progressive social scientists tallied and publicized the staggering numbers of workplace injuries and deaths. Industrial accidents were no accident, but inevitable, and devastating not only to the victim but to his or her dependents. In that light, the protracted procedures of the courtroom and the individualistic categories of common law causation, fault, and liability seemed unjust and inefficient. To workers, reformers, and a reform-minded middle-class public, the courts' carefully particularized inquiries into the "due care" of employer and employee seemed absurd. So, as a first installment in the realm of social insurance, Henretta notes, a number of American states set about adopting workmen's compensation schemes, based on the English model.11 |
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As states inaugurated workmen's compensation commissions and crafted insurance programs, knowledgeable observers declared that social insurance was on an unstoppable ascent, destined to occupy first the field of industrial accidents, then each of the other realms of social vulnerability. "[T]he legislative triumphs of workmen's compensation," John Witt tells us, "spread the appeal of what an Ohio Commission called the 'Social Remedy of Insurance' well beyond its core Progressive supporters. State Commissions from Ohio to New York to Tennessee linked workmen's compensation to the problems of 'unemployment, sickness ... old age and death.'"12 Theodore Roosevelt's Progressive Party platform called for compulsory health insurance; and soon the leadership of the American Medical Association—later a steadfast opponent—was endorsing health insurance as the "next step" in social insurance policy.13 |
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This trajectory was underway in England. By World War I, England had enacted not only workmen's compensation but also minimum wage boards, a noncontributory old age pension system, and compulsory sickness and unemployment insurance schemes.14 In the U.S., however, the constitutional question hung over workmen's compensation laws, to say nothing of minimum wages and the other kinds of social insurance, which rubbed more abrasively against the old liberal Constitution's anti-redistributive grain. As state workmen's compensation commissioners gathered, constitutional law "was the most carefully discussed problem." Were compulsory statutes "clearly unconstitutional"? Modest early statutes vexed the very commissioners and social insurance experts who lobbied on their behalf. The bills had been "maimed and twisted so that [they] might commend [themselves] to the judges."15 |
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Still, the other shoe dropped. In Ives v. New York (1911), New York's high court struck down that state's landmark workmen's compensation statute. As Witt points out, the statute had embodied the critical move from "individualized common sense [common law] causation" to "actuarial causal tendencies."16 With this, the modern administrative state seemed equipped to socialize and redistribute any number of risks—poverty, old age, unemployment, sickness—on the basis of their causal links to employment. In the name of "personal responsibility" and "political equality," the New York Court of Appeals aimed to block this move, when it declared the statute to be an unconstitutional taking of employers' property, an illegitimate legislative redistribution of wealth, such as the U.S. Supreme Court condemned in Lochner. |
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Like Lochner, however, Ives was reversed, the one by the Court itself a little over a decade after the decision; the other by a state constitutional amendment. But neither event left a broad opening for social citizenship and administrative state-building to unfold anew; sharp constitutional constraints remained. And neither event could turn back the clock; yet, in policy and state formation, timing is crucial. Moments of plasticity—when all agree that fundamental problems must be solved, the old order must change, and the question is only what solutions will prevail—are fairly brief and rare. |
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The U.S. Supreme Court, for its part, upheld workmen's compensation statutes. But the Court did so in stages. And the Court held that the statutes' constitutionality under the due process clause hinged, partly, on whether they afforded employers a quid pro quo for the imposition of strict liability. Thus, the initial framing of the problem in the old liberal discourse of Ives "built the baseline entitlements of 19th century common law into the statutes' risk-spreading mechanisms."17 This left much work for lawyers. Indeed, Witt tells us that after Ives leadership in the social insurance movement shifted from social reformers, such as Crystal Eastman, to constitutional lawyers, such as Ernst Freund and Joseph Cotton.18 The courts also imposed sharp federalism limits on workmen's compensation, forcing the creation of many work accident systems, a patchwork of different legal regimes. In all, it was a protracted process that consumed decades of effort on the part of social insurance advocates. Beyond workmen's compensation, a handful of states also enacted modest old-age pension programs, all of them voluntary. By the 1920s, several state legislatures had passed minimum wages legislation and created boards like England's; but all these laws and agencies were declared unconstitutional. |
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England's high courts and legal elite were no less hostile than their American counterparts to many redistributive and regulatory reforms, no less anxious about the threat the welfare and regulatory state seemed to pose. But as future Chief Justice William Howard Taft prophesied in the 1890s, in England "the assaults of socialism on the existing order" would meet less effective resistance; for the English bar and bench lacked the "buttress" of a "written Constitution." There Parliament was "omnipotent"; here, the courts could insulate the common law rights of property and contract "much further ... from the gusty and unthinking passions of turbulent majorities."19 Looking over the welfare-state-building era from the other side in time and sympathies, Chief Justice Harlan Fiske Stone made a similar observation. In England, Stone remarked, "the Constitution is a political heritage and ever adaptable; here, it is law and has been a bulwark against dramatic changes in the forms and purposes of government." Elsewhere, I've compared in some detail the reception roughly identical reforms met from old liberal American and English jurists.20 The former struck them down or interpreted them away; the latter sometimes interpreted them narrowly for a season, but soon acquiesced.21 |
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If enacting social insurance and other redistributive reforms was a more protracted and uncertain process in America than England, that did not make the "social question" any less pressing. The problems of injury, loss, and risk, which England began to address with an array of new social insurance programs, demanded new "social" solutions here as well. While America's social insurance proponents found themselves stymied, other players and other risk-spreading solutions began to occupy the field. Other lines of policy development began to unfold. Around them, new bureaucratic organizations and interest groups organized: not public administrations or commissions, but private commercial insurance companies and private employers' associations, the architects of what the era called "welfare capitalism," entrusting responsibility to safeguard against the hazards of illness and old age under industrial capitalism to the consciences and reforms of capitalists themselves, via voluntary employer initiatives, often in tandem with private insurance. These were the "first movers," as political scientists would say; and first movers enjoy large advantages over those who would displace them when a new crisis re-opens the door to reform.
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| The Great Depression, of course, was that crisis. FDR embraced the language of social rights and the idea of constructing what he called "cradle to grave" social insurance for all Americans. He charged his Commission on Economic Security (CES) to craft a broad national legislative scheme for that ambitious goal. But the draftsmen worked in the shadow of the Hughes Court's treatment of earlier New Deal legislation; and their handiwork reflected a studied determination to win the Chief Justice's approval.22 They planted the 1935 statute squarely on Hughes's constitutional middle ground. That meant tamping down the CES's redistributive ambitions; it meant sacrificing universal coverage and acquiescing in state as opposed to national administration and standard-setting in several arenas. |
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Factors besides constitutional doctrine and lawyerly craft favored these compromises. The Southern Democrats also insisted on state-level administration and exclusion of agricultural and domestic workers for reasons that ran to their region's racialized, caste-ridden labor markets. But they were swift and sincere in invoking the old liberal Constitution's safeguards for states' rights and limits on national power, for which Hughes's Court also seemed to offer some staunch support, circa 1934–1935. Thus, embarrassingly, perhaps, from Hughes's perspective, Jim Crow lined up behind his in-between liberalism and his constitutional scruples about the New Dealers' more robust and centralizing welfare-state ambitions. This helps explain why, pace Henretta, Hughes's influence on the parameters of American social provision proved enduring, and the New Dealers' later efforts to exceed the boundaries of Hughes's middle ground proved bootless. |
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Also active in preventing New Deal America from pursuing England down the path of social citizenship were the "first movers." Historians, such as Jennifer Klein, and political scientists, such as Jacob Hacker, have documented how from the Progressive Era onward, insurance companies, employers' associations, and other professional groups, like the AMA and state medical associations, had coalesced around private forms of risk-spreading and group insurance. Their powerful presence persuaded FDR to abandon hope for national health insurance; it also led New Dealers to lay legal groundwork in and around the 1935 statute for the post–World War II private welfare state.23
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| Meanwhile, out of the crucible of World War II, England completed fashioning a comprehensive welfare state, offering the kind of social insurance FDR and the "modern liberal" New Dealers envisioned. The main architect of the post-war English welfare state was a former high civil servant, William Beveridge. Cast in the visionary language of social citizenship, what is most interesting about the Beveridge Report (Social Insurance and Allied Services, 1942) is the fact that its main recommendation was merely to reorganize and revamp the social insurance programs fashioned by the Liberal Party in 1911, even preserving the same financing scheme the Liberals had instituted. The Report garnered wide public acclaim; and the series of White Papers issued in 1944, which mapped out government reconstruction policy, were largely consistent with Beveridge's blueprints. |
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Also published in 1942 was the "American Beveridge Report" (Security, Work, and Relief Policies), prepared by FDR's National Resources Planning Board. It, too, was cast in the language of social citizenship (FDR cribbed his famous "second Bill of Rights" State of the Union address from it) and like Beveridge's blueprints it called for comprehensive social insurance, a national health service, and a commitment to full employment policies and planning mechanisms. The difference is that in Britain the whole endeavor was incremental. The post-war Labour government adopted the Beveridge reforms in 1946, revamping social insurance, but the reforms already had been embraced in the White Papers prepared under Churchill, and these, in turn, highlighted how the blueprints relied on existing foundations. Social citizenship in Britain had been underway for two generations; its institutional and ideological bases were laid, and it readily became the basis of a post-war political consensus, which found its theorist in Marshall. |
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The "American Beveridge Report" also yielded a spate of legislative proposals to "complete the New Deal" in the early 1940s: to fill in the conspicuous gaps in the 1935 Social Security Act and make its coverage universal, to shift programs from state to national administration, to enact national health insurance and a firm national commitment to, and new economic planning and budget mechanisms for, full employment. Henretta implies that measures like these were enacted. But they were not. The Southern Democrats allied with the Republicans in Congress to thwart them.24 This conservative coalition took the place of the Court in holding fast to constitutional boundaries on centralization and executive branch expansion. In the early 1940s, Republican and Southern Democratic lawmakers invoked the states' rights tradition, the constitutional limits on executive branch aggrandizement, and the Hughes Court's own federalism and separation of powers precedents as they kept the New Deal welfare state confined to Hughes's middle ground. There the old "new liberalism" lived on, and America's version of British-style social citizenship and welfare statism died its own strange death.25
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| Nowhere was the triumph of the old new liberals more dramatic, or more revealing of the dialectics of American state formation, than in the contest between courts and "bureaucracy" over the operation of the New Deal state. Here Hughes's and Pound's in-between perspective—and personal efforts—most clearly shaped the terms on which the old common law regime and the new administrative order were reconciled. Henretta gets their outlook right. He gets their defeat wrong. Few players were more important than these two in shaping the terms and outcome of the long battle that culminated in the Administrative Procedure Act of 1946, the peculiarly old liberal constitution of America's administrative state. |
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As soon as New Dealers launched their new agencies and began wielding the new administrative machinery against industrial employers and investment bankers, the American Bar Association (ABA) commenced a fierce counter-reformation. The gist of it lay in invoking rule of law values against the new administrative-regulatory state and in favor of bringing all "controversies of a judicial character ... back into the judicial system."26 For many, the attack on administrative "autocracy" served simply as a stand-in for opposition to the substantive changes in the rules of economic life. But for others, as Morton Horwitz explains, "the rise of the administrative state raised the most basic questions about the meaning and continued viability of the 'rule of law' in situations where unelected [and non-judicial] officials exercised enormous and unprecedented power to affect the lives and property of citizens."27 You did not have to be a reactionary to question the New Dealers' blithe faith in administrative expertise and freewheeling agency discretion. And the international scene added fuel to the ABA's fire. The New Dealers were building the nation's first European-looking national "bureaucracies" at a time when several of Europe's great national bureaucracies had become instruments of fascism, and Stalin's bureaucrats reigned in Russia. Not surprisingly, the counter-reformation's flames leapt highest around the National Labor Relations Board. A few years earlier, the nation's major industries had been virtually union-free, and the federal courts had outlawed the kinds of organizing activities the Labor Board was now defending. Worse, the Board was compelling corporations to recognize and bargain with the radical new industrial unions. Meanwhile, even many left-leaning liberals were discomforted by the prominent role of communist attorneys in the NLRB, who seemed to wield agency power in ways that followed the party line. |
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In this climate, Pound was drawn toward the old Diceyan verities he once scorned as hopelessly one-sided: "administration" was at war with the "rule of law"; only the common law and the courts were reliable guardians of individual rights. In 1938, as Henretta notes, Pound became chair of the ABA's crucial Special Committee on Administrative Law. As author of the "Pound Committee Report," he lent his enormous prestige to a wholesale denunciation of New Deal administrative practices, likening them to Soviet-style "administrative absolutism."28 Labor Board hearings came in for special reproach. |
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Two strategies commended themselves to the counter-reformation: aggressive judicial review of agency actions, and aggressive judicialization of the administrative machinery itself. Both found essential support from Chief Justice Hughes. Hughes's in-between perspective allied him, as Henretta notes, with the Court's conservatives on questions of administrative law. Throughout the 1930s, he authored key decisions demanding court-like processes in the emerging national administrative apparatus;29 and at the same time, he insisted on far-reaching judicial review, and even full-blown trial de novo, of the key factual determinations as well as legal conclusions of administrative agencies.30
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As the ABA brought the counter-reformation to Congress, dyed-in-the-wool conservatives hoped to codify the massive judicial superintendence the Court seemed to favor into a new statutory framework for federal administrative procedure. More sophisticated, "modern" defenders of the old liberal faith emphasized Hughes's other prescription: more court-like rules for the administrative process itself. The "Pound Report," in turn, proposed an omnibus code for administrative practice and procedure that blended the two: ample judicial review and a wide role in agency decision-making for court-like procedures and the participation of attorneys for affected and interested parties. In 1939, Congress passed just such a code. In 1940, FDR vetoed it. But the future of administrative reform belonged to the counter-reformation and not to FDR and his executive branch state-builders whose confidence in an autonomous, enlightened administrative state Congress no longer shared.
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| In 1946, Congress passed and President Truman signed the Administrative Procedure Act (APA), which remains in force today. Its main ideas and contours limned by Hughes and Pound, the APA made a lawyer-dominated and common law-based process the definition of administrative justice. The conservative new liberals gave America a "bureaucracy" that remained far more beholden to the courts and the private bar than the New Dealers had envisioned, putting an adversarial legalist stamp on the American version of the "modern administrative state." It is not the state Henretta sketches in his splendid, thought-provoking essay. Hughes's in-between liberalism runs through it.31 Death announcements are premature. |
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William E. Forbath holds the Lloyd M. Bentsen Jr. Chair in Law and is Professor of History at UT Austin <wforbath@mail.law.utexas.edu>.
Notes
1. Barry Cushman has documented how the Social Security Act and other key New Deal programs from 1935 onward were drafted "in consultation" with the Hughes Court (i.e., with detailed attention to the signals, suggestions, and caveats to Congress contained in opinions, particularly Hughes's own). Cushman also finds evidence that Hughes privately expressed a sense of personal and institutional vindication about the process. See Barry Cushman, "The Hughes Court and Constitutional Consultation," Journal of Supreme Court History (1998): 79.
2. Also emblematic are Blaisdell (1934), which shows Hughes's combination of care and aplomb in upholding redistributive legislation in the face of the Constitution's plainest anti-redistributive provision, and, finally such prophetic opinions as McCabe v. Atchinson, Topeka, and Santa Fe Road (1914), Near v. Minnesota (1931), Norris v. Alabama (1935), and Gaines v. Missouri ex rel Canada (1938). In them Hughes fashioned from old liberal fabric precedent for the post-New Deal era of "modern liberal" judicial activism.
3. See T. H. Marshall, Citizenship and Social Class (Cambridge: Cambridge University Press, 1950).
4. Ibid., 78.
5. There is a significant body of work criticizing Marshall's evolutionary scheme. It is not relevant to my purposes here.
6. Social security (contributory old-age insurance) is the exception. But we view social security as a "right" rather than a dole, because we see it as earned, although, in fact, it has been a redistributive program.
7. See Robert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge: Harvard University Press, 2003).
8. Cass Sunstein, "Constitutionalism after the New Deal," Harvard Law Review 101 (1987): 421, 426.
9. See Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Belknap Press of Harvard University, 2000).
10. John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge: Harvard University Press, 2004).
11. Elsewhere, I've discussed at much greater length the comparative fortunes in England and America of other shared solutions to the social question: protective labor legislation and legislative efforts to repeal the harshly restrictive judge-made law regulating union organizing, strikes, and boycotts. See William E. Forbath, "Labor and the Courts in England and America," Labor Law in America: Historical and Critical Essays, ed. Christopher L. Tomlins and Andrew J. King (Baltimore: Johns Hopkins University Press, 1992).
12. Witt, Accidental Republic, 148–49.
13. Ibid., 149.
14. Forbath, "Labor and the Courts in England and America."
15. Witt, Accidental Republic, 137–38.
16. Ibid., 150–51.
17. Forbath, "Labor and the Courts in England and America," 182.
18. Witt, Accidental Republic, 180–81.
19. William Howard Taft, "The Right of Private Property," Michigan Law Review 3 (1904): 215, 218–19.
20. See Forbath, "Labor and the Courts in England and America."
21. Ibid.
22. See Cushman, "The Hughes Court and Constitutional Consultation"; Arthur J. Altmeyer, The Formative Years of Social Security (Madison: University of Wisconsin Press, 1966), 14–15, 19–21; Edwin E. Witte, The Development of the Social Security Act (Madison: University of Wisconsin Press, 1962), 100.
23. See Jennifer Klein, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State (Princeton: Princeton University Press, 2003); Jacob S. Hacker, The Divided Welfare State: The Battle over Public and Private Social Benefits in the United States (New York: Cambridge University Press, 2002).
24. For a closer examination of this history, see William E. Forbath, "Caste, Class and Equal Citizenship," Michigan Law Review 98 (1999): 1.
25. SeeWilliam E. Forbath, "The New Deal Constitution in Exile," Duke Law Journal 51 (2001): 165.
26. A.B.A. Annual Report 59 (1934): 539, 549.
27. Morton Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 214.
28. [Roscoe Pound,] "Report of the Special Committee on Administrative Law," A.B.A. Annual Report 63 (1938): 331, 343.
29. See, e.g., Morgan v. United States, 298 U.S. 468 (1936); Ford Motor Co. v. NLRB, 305 U.S. 364 (1939).
30. See, e.g., Crowell v. Benson, 285 U.S. 22, 57 (1932) (declaring that denying trial de novo on jurisdictional or "constitutional" facts would be "to establish a government of a bureaucratic character alien to our system"); St. Joseph Stockyards v. United States, 298 U.S. 38 (1936) (requiring trial de novo). Once FDR's nominees reached the court, Hughes's perspective on judicial review of agency decisions gave way to Brandeis's. Hughes's outlook, however, continued to animate the conservatives in Congress.
31. In England, by contrast, "judicial deference to administrative actions became legend. Only in the late twentieth century would British courts begin to expand judicial review of administrative actions. Amazed observers referred to the change as a constitutional revolution." See Michael Les Benedict, "Law and Regulation in the Gilded Age and Progressive Era," in Law as Culture and Culture as Law: Essays in Honor of John Phillip Reid, ed. Hendrik Hartog and William E. Nelson (Madison: Madison House Publishers, 2000), 244.
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