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The Constitution Besieged offers a compelling reinterpretation of one of the most notorious periods in American constitutional history. In the decades following the Civil War, federal and state judges struck down as unconstitutional a great deal of innovative social and economic legislation. Scholars have traditionally viewed this as the work of a conservative judiciary moThe Constitution Besieged offers a compelling reinterpretation of one of the most notorious periods in American constitutional history. In the decades following the Civil War, federal and state judges struck down as unconstitutional a great deal of innovative social and economic legislation. Scholars have traditionally viewed this as the work of a conservative judiciary more interested in promoting laissez-faire economics than in interpreting the Constitution. Gillman challenges this scholarly orthodoxy by showing how these judges were in fact observing a long-standing constitutional prohibition against "class legislation." Originally published in cloth by Duke University Press, this book received the 1994 C. Herman Pritchett Award for the "Best Book in the Field of Law and Courts," awarded by the Law and Courts Section of the American Political Science Association....

Title : The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence
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ISBN : 9780822316428
Format Type : Paperback
Number of Pages : 328 Pages
Status : Available For Download
Last checked : 21 Minutes ago!

The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence Reviews

  • Frank Stein
    2019-02-26 09:05

    Though this can be a somewhat tiring read, I think one has to face the fact that the author is fundamentally right in his main argument, and that this book therefore deserves much more attention and thought than it has been given. Gillman admits that the lineaments of his argument have been made before, part of a "revisionist" view of Lochner-era of jurisprudence, but his is the first book to place this new view in the total history of American thought and law and to point to its supreme importance. Gillman argues that "equal justice under law" or "equal protection" or the opposition to "class legislation" was the cynosure of constitutional thought in the 19th and early 20th century, and that every legislative enactment that threatened to grant "special privileges" to one class or group instead of another was treated as inherently suspect. He traces this back to the founders' concern with "factions" but especially to the Jacksonian era's opposition to corporate privilege, during which many states amended or reinterpreted their constitutions to explicitly or implicitly prevent any special grants or privileges to one group. In Bank v. Cooper (1831) Jackson's own state;s Supreme Court struck down the creation of a special court to hear state bank cases, and in the same year the same court in Wally's Heirs v. Kennedy struck down an act to inhibit outsiders bringing lawsuits on behalf of Indians on reservations. Both of these cases seem to go against the tenor of Jackson's political policies, but they were certainly of a piece with his constitutional vision, and that's part of Gillman's argument. This "ideology" of equal protection was not a mere scrim to cover up political or class preferences, but a real part of American thought that had real consequences. Once this ideology was supposedly incorporated in the U.S. constitution with the 14th Amendment's "equal protection" clause, it went truly national. In cases like Loan Association v. City of Topeka (1874) the court prevented cities from issuing debt to benefit business interests. This was not just "laissez-faire" under a different name, but a constant investigation of the motives and affects of legislation on the polity. The court kept looking for any grant to one group or another that might upset the equality of all under the law.Gillman argues that this ideology was eventually overthrown by the changing nature of American capitalism, which created unequaled economic power in large corporations that demanded a proportionately unequal response on government that inevitability burdened and benefited certain classes, mainly the workers. Perhaps ideology mattered more in this change too, however, than the supposed base of economic relations as Gillman arguesIn any case, despite a tendency to loquacious asides and a desire to re-litigate cases that have been discussed very thoroughly elsewhere, this book should be deeply pondered by those who care about the US Constitution and American government more generally.