Harvard Law School, New England Legal Culture, and the Antebellum Origins of American Jurisprudence

Abstract

One of the most remarkable developments in American legal history, and the theme of this special issue of the Journal of American History, is the momentous effort of the powerless to make the Constitution and the law work for them. When they attempted to do so, however, as they did with increasing insistency in the decades following the Civil War, they found the high constitutional ground already occupied by powerful business interests, which were supported by the middle class and both political parties and backed by the military authority of the state. Buttressing the conservative legal structure was the Supreme Court under ChiefJustices Morrison Waite and Melville Fuller, which improvised boldly to make the Fourteenth Amendment serve business but refused to make it work for the black Americans for whom it was intended. Business consolidated with the blessings of the law; labor's attempt to organize and bargain was opposed by an impressive array of legal stratagems. Commerce clause decisions regularly went against state regulatory efforts, and judicial construction of the Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890 generally defeated their regulatory intent. While law supported a class-biased double standard, lawyers, judges, legal publicists, and educators talked of adjudication made neutral and objective by the science of the law. Legal formalism, as the paradigm of conservative jurisprudence in the last quarter of the nineteenth century came to be called, not only made law work for those in power, but also supplied moral and intellectual arguments for denying its benefits to the powerless. Workers, blacks, immigrants, and women need not apply or so read the hegemonic message of American jurisprudence in the Gilded Age., Reasons peculiar to late nineteenth-century American culture explain the force