Vol. 17 No. 1 (January, 2007) pp.44-47


TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (THE OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME COURT, VOL. VIII) by Owen M. Fiss. New York:  Cambridge University Press, 2006.  446pp.  Hardback $80.00/£45.00. ISBN:  052186027X.


Reviewed by Stephen M. Feldman, Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming.  Email:  sfeldman [at] uwyo.edu.


In TROUBLED BEGINNINGS OF THE MODERN STATE, Owen Fiss presents an illuminative history of the United States Supreme Court from 1888 to 1910, the years when Melville W. Fuller served as Chief Justice.  TROUBLED BEGINNINGS is the eighth volume in the monumental OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME COURT.  This 2006 Cambridge University Press edition is a reprint of the 1993 Macmillan Publishing Company original.


In 1905, the Fuller Court decided LOCHNER v. NEW YORK, the case that epitomizes the Supreme Court era running from the 1880s to 1937.  Fiss, Sterling Professor of Law at Yale Law School, thus reasonably seizes upon this history of the Fuller Court as an opportunity “to confront the ghost of Lochner” (p.12).  Progressives, including Progressive historians, shaped the predominant understanding of the LOCHNER era:  the justices corrupted the meaning of the Constitution by instrumentally deciding cases to protect the class interests of wealthy elites.  For instance, according to this instrumental hypothesis, the LOCHNER Court itself invalidated the statute restricting the hours of employees in bakeries because the legislation would have been costly to the employers.  Fiss counters this predominant (instrumental) narrative by presenting the LOCHNER era cases as the Fuller Court justices themselves would have understood them.  Fiss, in other words, takes legal doctrine seriously because the justices would have done so.  LOCHNER and similar cases restricting governmental power and protecting economic liberties did not twist contemporary legal principles but rather exemplified them.  According to Fiss, the Fuller Court was primarily concerned with enforcing liberty as understood within the social contract tradition—a liberty that preexists and must be protected from government.


An important caveat should be added, however.  Fiss does not disregard political ideology in his interpretation of the Fuller Court.  Chapter 2 places the Fuller Court in the broad historical context of the late-nineteenth and early-twentieth centuries, when industrialization, immigration, and urbanization were changing the American social landscape.  And in each subsequent chapter, Fiss places the Court’s key decisions and opinions in the specific political battles of the times.  He explains how Progressive politics, debates over corporations and antitrust, and struggles to unionize shaped the Court’s analyses of legal issues. [*45]


With that said, Fiss unfortunately clouds his introduction with a paragraph discussing the “autonomy that law can rightfully claim” (p.18).  In this paragraph, Fiss struggles with his earlier assertion that the instrumental hypothesis is incorrect.  If instrumentalism is rejected, Fiss seems to ponder, then what alternative remains?  His obscure answer lies in his paragraph on legal autonomy:  if law is not applied as an instrument to advance political or class interests, then law must be autonomous from such political factors—or so Fiss seems to suggest, albeit briefly.  Ultimately, Fiss conceptualizes ‘legal autonomy’ in an odd manner:  claims of autonomy reflect the complexity of the interconnections between the legal system and the rest of society.  Autonomy does not mean that law is unconnected to society; rather, it means that law is so interlaced with society that we cannot disentangle the web of intertwined threads.  Fiss explains:  “To say that law is autonomous is thus to acknowledge that life is complicated and our knowledge limited.  It is also a way of saying that the relationship between law and economic or social interests proceeds in both directions” (p.18).  I agree with Fiss’ understanding of the multifaceted interconnections between law and society, but I find his insistence on using the term ‘autonomy’ unnecessarily confusing.  To me, the rejection of the instrumental hypothesis does not require retreat to an ambiguously defined legal autonomy.  One does not have to choose between a Segal and Spaeth inspired attitudinal model and Langdellian legal science.  Instead, one needs only to recognize that judges interpret legal rules and principles, that legal interpretation is not a mechanical process, and that politics plays an integral role in the (non-mechanical) interpretive process (Feldman 2005).


Fortunately, despite Fiss’ confusing introductory flirtation with the concept of legal autonomy, he demonstrates throughout the remainder of the book his thorough appreciation for the interrelationship between law and politics.  Besides LOCHNER, Fiss discusses numerous important cases, including IN RE DEBS, POLLOCK v. FARMERS’ LOAN & TRUST CO., UNITED STATES v. E.C. KNIGHT, THE INSULAR CASES, and PLESSY v. FERGUSON.  In analyzing these cases, Fiss relates the issues involving unionizing, income taxes, antitrust, United States imperialism, and race relations to the political and cultural battles of this contentious time in the nation’s history.  Even so, while Fiss has thoroughly researched his subject matter and persuasively presents his narrative, I found myself occasionally disagreeing with him.


Most broadly, Fiss repeatedly emphasizes the Fuller Court’s focus on protecting liberty, while I would emphasize that the Court was more concerned with limiting government to acting for the common good (Feldman, 2006).  The Court focused on determining the scope of governmental power – the government could promote the common good but not partial or private interests – and liberty was defined as whatever was beyond the government’s reach.  Fiss himself recognizes this point.  In his discussion [*46] of LOCHNER, he writes:  “Liberty of contract was what remained to the individual after the state reached the outer bounds of its authority” (p. 159).  Moreover, Fiss usefully discusses how the LOCHNER Court did not merely speak of a generic common good or public welfare but rather segmented it into “discrete and separate” doctrinal components.  “‘Safety,’ ‘health,’ ‘morals,’ and ‘welfare’ were each viewed as a pigeonhole into which the purpose of a statute had to be placed” (p.160).  Yet, Fiss so often emphasizes liberty in the social contract tradition and so rarely discusses governmental empowerment that one might easily forget that governmental power demarcated the scope of liberty and not vice versa.  When Fiss originally published TROUBLED BEGINNINGS in 1993, it should be noted, he was not the first scholar to question the predominant Progressive-inspired instrumental hypothesis.  Articles by Charles W. McCurdy (1975) and Michael Les Benedict (1985), among others, had already begun to build a revisionist interpretation of the LOCHNER era.  In fact, the same year that Fiss originally published TROUBLED BEGINNINGS, 1993, Howard Gillman published his CONSTITUTION BESIEGED; Fiss cites to Gillman’s Ph.D. dissertation of the same name (p.85 n.29).  While Fiss stresses the judicial protection of liberty, Gillman emphasized the judicial distinction between legislative actions for the common good (which would be deemed legitimate) and for partial or private interests (illegitimate class legislation).


On a narrower point, Fiss argues that Holmes “rejected the theory of LOCHNER thoroughly” and instead “embraced the widest conception of permissible ends for state action” (p.180).  In other words, instead of the government being limited to pursuing the common good, the “legislative power could be used to favor one economic class or social group over another” (p.180).  But Holmes’ free-expression opinions, even including his ABRAMS dissent, demonstrate that he still believed government was empowered to act only for the common good.  In LOCHNER, Holmes dissented because he disagreed with the majority’s conclusion that the New York legislature had not done so.  Holmes believed that a “reasonable man” could find that the statute furthered the common good (LOCHNER v. NEW YORK, 75-76).


Regardless, my disagreements with Fiss are relatively minor.  He writes Supreme Court history the way it should be written.  He takes legal doctrine seriously because, he realizes, it plays a constitutive role in judicial decision making.  Supreme Court justices sincerely decide cases in accordance with doctrine.  Simultaneously, he recognizes that legal interpretation and judicial decision making are not mechanical processes.  Politics, culture, and economics influence how the justices understand, apply, and articulate the doctrine.  A complete picture of a Supreme Court era requires adequate attention to both doctrine and politics.  And Fiss, in discussing the Fuller Court, admirably gives the reader both. [*47]



Benedict, Michael Les. 1985.  “Laissez-Faire and Liberty:  A Re-evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism.” 3 LAW & HISTORY REVIEW 293-331.


Feldman, Stephen M. 2005.  “The Rule of Law or the Rule of Politics?  Harmonizing the Internal and External Views of Supreme Court Decision Making.”  30 LAW & SOCIAL INQUIRY 89-135.


Feldman, Stephen M. 2006.  “Unenumerated Rights in Different Democratic Regimes.”  9 UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW 47-106.




McCurdy, Charles W. 1975.  “Justice Field and the Jurisprudence of Government-Business Relations:  Some Parameters of Laissez-Faire Constitutionalism, 1863-1897.” 61 JOURNAL OF AMERICAN HISTORY 970-1005.



ABRAMS v. UNITED STATES, 250 U.S. 616 (1919).


IN RE DEBS, 158 U.S. 564 (1895).


LOCHNER v. NEW YORK, 198 U.S. 45 (1905).


PLESSY v. FERGUSON, 163 U.S. 537 (1896).


POLLOCK v. FARMERS’ LOAN & TRUST CO., 158 U.S. 601 (1895).


UNITED STATES v. E.C. KNIGHT, 156 U.S. 1 (1895).


© Copyright 2007 by the author, Stephen M. Feldman.