In Search of Laissez-Faire Constitutionalism

This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritarian rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the laissez-faire constitutionalism of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of vested rights and the iconic, if unrepresentative, substantive due process of the late nineteenth and early twentieth centuries. If we are to draw a line of historical causation between the mid-century vested rights decisions and the so-called laissez-faire constitutionalism of the Lochner era, it must necessarily run through the watershed historical events of slave emancipation and the industrialization of labor, as well as the transformative constitutional changes set in motion by the Reconstruction amendments. To the extent that Lochner-era courts did constitutionalize economic liberty in a manner that warrants the label laissez-faire constitutionalism, they were inspired less by the Jacksonian vested rights jurisprudence that preceded the Civil War than by the constitutional and industrial revolutions that followed it