Constitutional Politics in the Gilded Age

Abstract

During the Gilded Age, constitutional issues pervaded the discussion of nearly all matters of public policy, including regulation of railroads, suppressing unsafe and fraudulent products, labor issues, and combating trusts and monopolies. The Democratic and Republican parties differed in their conceptions of federal power and state rights as well as on matters related to social order and personal liberty. They articulated these differences in political platforms and manifested them in their approach to public policy. The obsession with constitutional issues was not confined to the halls of Congress or the chambers of the Supreme Court. Constitutional discourse ran up from ordinary people and interest groups to public policy makers and down from policy makers seeking support based on fidelity to constitutional principles. Ordinary people influenced constitutional policymaking not only through voting but through various means of making their views known. Advocates used all types of media to make constitutional issues clear to the American people. These ranged from formal treatises aimed at the intellectual elite to cartoons, caricatures, songs, and screeds. Politicians articulated constitutional positions in political platforms, congressional addresses, pamphlets, political and commemorative addresses, and stump speeches. Justices of the Supreme Court eschewed technical and abstract language in constitutional opinions, addressing them to a more general public than they did in other areas of law. In the end, constitutional policy was not determined through legal determinations of the Supreme Court but by the political decisions of the American people.