Rufus W. Peckham and the Pursuit of Economic Freedom

Abstract

Rufus W. Peckham and the Pursuit of Economic Freedom JAMES W. ELY, JR.* It is striking that Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author ofLochner v. New York (1905),' one ofthe most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, anti-trust law, eminent domain, dormant commerce power, and the Eleventh Amendment. Indeed, Owen M. Fiss maintains that Peckham and DavidJ. Brewerwere intellectual leaders ofthe FullerCourt, “influential withinthe dominant coalition and the source ofthe ideas that gave the Court its sweep and direction.” Even when they did not prevail, Fiss observed, Peckham and Brewer “set the terms for the debate.”2 Why has such an influential jurist been so conspicuously overlooked in the historical literature? One might be tempted to explain this neglect in terms of the disdain that many scholars feel toward the jurisprudence of the Gilded Age, with its emphasis on economic liberty and limited government. It is an old adage that winners write history. Scholars who view the work of the Supreme Court through the lens of the Progressive and New Deal mind-set would likely have little sympathy for Peckham.3 After all, he was skeptical about much of the legislation associated with the Progressive movement and strenuously rejected the emerging statist liberalism. While, no doubt, this is a partial expla­ nation, it is not ultimately persuasive. Other leadingjurists ofthe late nineteenth century— StephenJ. Field,4 Melville W. Fuller,5 Brewer,6 Thomas M. Cooley7—have received consider­ able scholarly attention. Eventhe controversial Lochner decision has been the subject ofrevi­ sionist and more sympathetic accounts in re­ cent years.8 So we are left with an unresolved question as to why Justice Peckham lingers in relative obscurity. I propose in this article to take a fresh look at Peckham’s career and assess his signature issue, a commitment to liberty of contract. Background Born in 1838 in Albany, New York, Peckham was part of a family ofprominent lawyers and judges. Indeed, in many respects Peckham’s THE PURSUIT OF ECONOMIC FREEDOM 23 early career followed in the footsteps of his father. The elder Peckham was a district attor­ ney, a member ofCongress, and served on both the New York Supreme Court and the Court of Appeals. Rufus Peckham was educated locally and studied law in his father’s office. He was admitted to the New York bar in 1859. Joining the family firm, Peckham built a successful practice representing the Albany and Susque­ hanna Railroad, a local bank, and real estate interests. Peckham was very active in Democratic party affairs and in 1868 he was elected district attorney forAlbany County, a post that he held for three years. From 1881 to 1883 he was cor­ poration counsel for the City of Albany. Par­ ticipating regularly in Democratic party con­ ventions at both the national and state level, Peckham emerged as a leading spokesman for upstate Democrats in their struggle to prevent domination of the party by Tammany Hall, a New York City-based political group. He formed a close friendship with Grover Cleve­ land, and actively supported Cleveland’s rise in New York political life. In 1883 Peckham was elected to the New York Supreme Court. Three years later, then-President Cleveland helped to engineer Peckham’s election to the New York Court of Appeals. Court of Appeals During his nearly ten years on the appellate bench, Peckham proved to be an able judge who avoided partisanship. He authored more than 300 opinions for the Court on a wide va­ riety of private law topics, including property, torts, contracts, and wills. Peckham wrote only eight dissenting opinions, but dissented more than 80 times without opinion. For our pur­ poses, however, Peckham’s opinions raising constitutional issues are of special interest. He demonstrated skepticism about governmental regulation ofthe economy, an aversion to class legislation, and a disposition to define liberty as encompassing economic freedom. Since Peckham carried these views with him to the Born in Albany in 1838, Rufus Peckham studied law at his father’s firm for two years before passing...