The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here.
The 1993 Symposium in which Revisiting James Bradley Thayer appeared was prompted by the centennial of James Bradley Thayer’s essay, The Origin and Scope of the American Doctrine of Constitutional Law. At that time, Thayer’s essay was still quite well known among constitutional scholars, who were largely in thrall to the dominant “progressive” interpretation of late nineteenth- and early twentieth-century constitutional history—featuring the Lochner era, substantive due process, the Supreme Court’s retreat from aggressive review of other-branch legislation after the Court-packing crisis, and the Court’s eventual settling into an enlightened deference toward social welfare legislation, whether by Congress or the states. With that interpretation in place, Thayer’s essay was typically read as a plea to courts to restrict judicial review of legislative decisions to those situations in which no reasonable doubt existed as to a decision’s unconstitutionality.
So understood, Thayer’s essay was taken as a plea for judicial self-restraint, a precursor of the counter-majoritarian difficulty, and a prescient anticipation of the Lochner Court’s interpretive excesses, such as liberty of contract. Most of the commentators to the Symposium either critiqued that conventional understanding or directed their attention to Thayer’s essay as a plea for limited judicial review. Notwithstanding the critical stance of some commentators, there was a collective sense that the Symposium was paying homage to an influential marker on the highway of modernizing American constitutional jurisprudence.
More than twenty-five years later, the Symposium looks quite different to me. Beginning in the mid 1970s, some central assumptions made by proponents of the “progressive” interpretation of late nineteenth- and early twentieth-century constitutional history began to be called into question, and one by one, over the next fifty years, their resonance has receded. Historians have shown that late nineteenth-century courts and commentators are imperfectly described as laissez-faire conservatives, both with respect to their theories of political economy and their ideological leanings. The approach of the Supreme Court in police power/due process cases in the Lochner era has come to be seen as far more nuanced, and more mainstream, than anachronistic readings of those cases that later twentieth-century “progressives” suggested. “Substantive due process” has been revealed to be a phrase that no Justice on the Court employed throughout the Lochner era, conventionally thought of as between the 1880s and the late 1930s, when liberty of contract was one of the Court’s commonplace interpretive devices. The introduction of the Court-packing plan has been shown to have had virtually no effect on the Court majority’s sustaining hours and wages legislation against constitutional attacks after 1937. The emergence of a perception that unelected judges posed a “counter-majoritarian difficulty” for the American system of democratic government has been seen not to have resulted in the Court’s embracing a minimalist conception of judicial review across the board, but in actually increasing the Court’s scrutiny of some other-branch decisions, notably ones affecting the civil rights and civil liberties of minorities. Indeed it is fair to say that by the first decade of the twenty-first century every claim made by “progressive” historians about the course of constitutional law in the late nineteenth and twentieth centuries has been the subject of revisionist scholarship.
In this vein, the 1993 symposium on Thayer, including my attempt at revisiting his jurisprudential perspective, now looks more like the tip of an historiographical iceberg that would grow and expand over the next two decades. Thayer’s purported role as a prescient expositor of “judicial self-restraint,” a commentator who understood the costs of judges’ employing judicial review to usurp the prerogatives of more majoritarian institutions, was exposed in the Symposium in two respects; that image of Thayer was historically inaccurate, and the idealized posture associated with Thayer had its own deficiencies as an interpretive template. My contribution to the Symposium focused on the first of those themes. I note that there has not been much attention to Thayer among constitutional historians since the Symposium—he still lacks biographical treatment—and perhaps that has been because the Symposium is still regarded as the “last word” on Thayer. More likely it has been because the posture for which Thayer was once celebrated—judicial self-restraint—has ceased to be at the heart of discussions of judicial review and the Supreme Court’s proper interpretive stance in entertaining constitutional challenges to other-branch decision-making. In retrospect, the 1993 Symposium looks to me more like a scene in an unfolding revisionist movie about late nineteenth- and early twentieth-century constitutional history than any sort of jurisprudential milestone.
G. Edward White is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He is the author, most recently, of Law in American History, Volume III: 1930-2000 (2019).