Where Politics Ends

by Cass R. Sunstein | August 3, 1992

The Transformation of American Law, 1870-1960

by Morton J. Horwitz
(Oxford University Press, 361 pp., $30)
 

Some people think that it is very important to establish that what we consider "law" is really "politics." Thus, when the decisions of the Warren Court seemed to reflect liberal convictions, the justices were said to be engaging in "politics." And we hear the same thing when the decisions of the current Court reflect conservative convictions: members of the Supreme Court are said to be acting "politically" when they suggest that the Constitution does not protect the right to have an abortion.

The line between law and politics also seems fragile in areas not involving the Constitution. Judges' disagreements about the meaning of ordinary laws often appear to reflect politics. The judges of today, for example, interpret civil rights laws more narrowly than did the judges of 1978. And judges often decide common law cases, involving liability for accidents, intrusions on property rights, and contractual violations. When judges disagree about such cases, aren't they disagreeing about politics? Are they doing law at all?

On the first page of his book, Morton J. Horwitz raises "the question whether and in what sense law is political." On the last page, he deplores "the American fixation with sharply separating law from politics." This theme organizes his study of ninety extraordinary years of American law. Horwitz is a founding member of the Conference on Critical Legal Studies, a highly influential group of left-wing scholars, one of whose principal claims is indeed that "law is politics." His book, a successor to his 1977 volume on the transformation of American law from 1780 to 1860, provides an occasion for a general assessment of this claim, and perhaps of some aspects of the Critical Legal Studies movement as a whole.

Horwitz's tale is somewhat disjointed and episodic -- the book too easily betrays its origins in separate articles -- but a coherent narrative does emerge. The plot, the overriding theme, is the rise and fall of "Classical Legal Thought." Horwitz claims that Classical Legal Thought provided the conceptual underpinnings for the system of laissez-faire, until the legal realists, influential academic lawyers writing in the early part of the twentieth century, administered the conceptual death blow to that classical tradition, paving the way for Franklin Delano Roosevelt's New Deal.

More specifically, Horwitz's story goes like this. From 1870 to 1905, America was ruled by Classical Legal Thought, which was essentially the legal commitment to a night-watchman state, designed only to police the terms of private interactions, and prohibited from redistributing wealth. On the classical view, the state was under an obligation to be "neutral" among the citizenry. It could not favor some people and disfavor others. Certain forms of taxation, of course, would violate this principle; the government could not use the tax system to take property from some for the benefit of others.

In the classical conception, there was a sharp division as well between "private law" and "public law." Private law consisted of the rules of contract, tort, and property. These rules were designed merely to "facilitate" individual desires, not to take a stand of the state's own. When the state enforced a contract, it was not really doing anything; it was just enforcing the will of the parties. It was even, in some sense, simply following nature, that is, what people naturally wanted to do. Property law merely recognized the rights of ownership. The private law that undergirded laissez-faire was not seen as government intervention at all.

Public law, by contrast, consisted of government's taxing and regulatory power. Classical Legal Thought sharply constrained what public law could do. Government could not prefer some people at the expense of others -- as, for example, minimum wage and maximum hour laws seemed to do. Hence the early part of the twentieth century saw an aggressive Supreme Court protecting the system of laissez-faire from democratic tinkering. The very notion of "judicial activism" gets its name from this period, when the Court struck down Progressive and New Deal legislation. As the split between private and public law reveals, this period was, in Horwitz's terms, "dominated by categorical thinking -- by clear, distinct, bright-line classifications of legal phenomena."

 

In some especially vigorous chapters, Horwitz traces the decline of Classical Legal Thought. The mounting realization was that there was no such thing as "laissez-faire," because the legal system was everywhere. The law of property, contract, and tort made markets possible, and did not come from the sky. Markets, supported as they were by law, were not neutral. They were themselves social choices, favoring some and disadvantaging others. In Horwitz's account, Classical Legal Thought could not survive this idea.

Horwitz describes Oliver Wendell Holmes, the greatest figure in American law, as the first prominent exponent of the new view. For Holmes, all law is a product of human design, not of nature. Inevitably, law is a social creation, not merely when it visibly redistributes wealth, but when it does anything at all. Decisions about relations between employers and employees should be based not on preexisting legal categories, which had no extrahuman status, but on propositions "of policy of rather a delicate nature." In this sense, Holmes taught, politics was everywhere.

Holmes's enthusiasm for judicial restraint stemmed from this notion that there were no natural categories from which courts could draw. There were merely different views about public policy. Holmes was no democrat -- "I loathe the thick-fingered clowns we call the people," he once observed -- but Horwitz convincingly argues that it was he who, by denaturalizing "laissez-faire," paved the way toward a democratic attack on the classical conception of law. If all decisions were in some essential way political, then courts had no basis for opposing democratic outcomes.

Holmes had many successors in this regard. In the 1920s and 1930s, and even earlier, many academic lawyers, writing under his influence, saw property and contract themselves as a product of public law. The rules of property were no mere reflection of individual will; they were necessarily a collective choice that conferred legal rights on some but not on others. When one person owns something, it is only because the state says so. In Holmes's words, this is true "as a matter of fact." Property, Holmes said, is "a creation of law." And the same things were said about contract. Arthur Corbin, an influential writer in the second decade of the century, wrote that "an obligation to pay damages for breach of contract is created by law and not by the agreement." Any such obligation came from the state. In many contract cases, "The legal requirement is based upon principles of justice, policy, and right, and not on the expressed will of the parties." Thus freedom of contract was pervaded by political judgments coming from government officials. It was not rooted in neutral respect for free agents.

The most profound claims to this effect came from the legal realists, so-called because of their hostility to abstractions and their interest in what was really at work in the law. The most important figures here were Morris Cohen and Robert Hale. They argued that rights of property amounted to a delegation of power from the state to ordinary people. When the delegation occurred, people were even given an element of "sovereignty." The law of contract did not merely allow enforcement of the desires of the parties, it also reflected public policies about how people should be treated. Hence there was nothing natural or neutral about existing distributions of wealth. Those distributions were created by law. The realists thought that these distributions could be revised by law as well.

 

All this helped to prepare the ground for the New Deal and the rise of the bureaucratic state. No longer could the system of laissez-faire be seen as natural and prepolitical. Instead it had to be evaluated pragmatically, that is, in terms of its service or disservice to particular human goals. Horwitz believes that the New Deal was a consequence of this pragmatic evaluation.

A brisk closing chapter discusses the fascinating period from 1945 to 1960. One of Horwitz's special interests is the hostile academic reception accorded to Brown v. Board of Education, which abolished a form of apartheid in America. Horwitz notes that Brown was unsettling to the legal culture, and in several different ways. In the aftermath of World War II, most people had decided that judicial restraint was desirable, but Brown reflected the very opposite: it put the courts squarely in the midst of politics. Moreover, many people believed that America was ruled, in law and in other things, by consensus. Social conflicts were merely superficial, and generally involved means rather than ends. Brown drew this view, too, into question.

Horwitz nicely shows that academic lawyers have had a hard time coming to terms with the resulting dilemmas. In particular, he explains how the idea of "neutral principles," deployed by Herbert Wechsler in an influential criticism of Brown, became a central part of the contemporary conception of law. The rallying cry of "neutral principles" came to imply a (tacit and undefended) presumption of respect for existing practices, or the status quo, and an (equally undefended) objection to efforts to benefit the disadvantaged through law. Thus it was, in Horwitz's account, that a new conservative formulation of legal thought followed from the efforts of "the neutral principles school ... to avoid ever having to decide whether one group was victimizing another, since that inevitably involved substantive evaluation of the justice of their claims."

 

Horwitz's discussion of the evolution of Holmes's thought is imaginative and original, and he deals extremely well with the realists. The principal virtue of his book, I think, is its detailed discussion of an insufficiently noticed aspect of the New Deal period, that is, the elaborate attack on laissez-faire not merely as economically inefficient and unjust, but also and more fundamentally as a conceptual error. The consequence of this re-evaluation was to show that property and contract rights were entitled to no special immunity from "government intervention," since they were themselves a form of government intervention.

This shift was itself a product of, and a stimulus for, many of the most important developments in American law. It helped to define our current categories, most prominently the notion of "judicial restraint." Even Brown v. Board of Education was a result of a mounting recognition, inevitable in the aftermath of the New Deal, that the system of segregation was a legal product -- and that any relevant differences between blacks and whites could not be said to be "natural." Though Horwitz does not discuss this particular point, the same sorts of ideas ultimately helped to fuel the attack on sex discrimination. Many differences between men and women, formerly thought to be part of "nature," came to be seen as a product of society, and to some extent a product of law.

Horwitz's lessons bear relearning today, when property is often seen as a product of nature, and when enforcement of contracts is often understood to be merely a reflection of private will. Still, I see two problems with Horwitz's account. First, his own conceptual scheme is too abstract, in places even a bit muddled. The high level of abstraction is unfortunate, since the Progressive and New Deal periods involved quite concrete issues -- minimum wage laws, collective bargaining guarantees, consumer protection, farm policy, social security law -- that need to be addressed in their own particular terms. And the high level of abstraction is closely connected to my second objection, which is that Horwitz's major interest is not law, but what law professors said about the law. His book deals mostly with the history of ideas in American law schools, and less with some extraordinary and concrete developments in American law.

 

Those developments, however, deserve sustained attention. Consider just three: the transformation of the Fourteenth Amendment, which was designed to protect the newly freed slaves, into an engine for judicial protection of laissez-faire and a powerful obstacle to minimum wage and maximum hour laws; the enormous, Constitution-like shifts of the New Deal period; and the dramatic rise of a Supreme Court attempting to eliminate apartheid in America. I think that Horwitz's approach makes it hard to get a full grasp of these developments.

For a start, there is the book's conceptual inadequacy. Its emphasis is on the history of ideas, but some of the ideas seem insufficiently developed. We can get a sense of the problem by listing the book's least favored and most favored concepts. Horwitz is critical of: categorical thinking, indifference to context, the public/private distinction, the law/politics distinction, the fact/ value distinction, the belief in the rule of law, the view that economic markets are "neutral and necessary," abstraction, neutral principles, and (perhaps above all) the claim to objectivity. He is favorably disposed to: balancing, the recognition of contingency, John Dewey, legal realism, certain particular moral and political visions, and "deconstruction."

But many of these concepts are not clearly defined. Horwitz does not say what he understands by such terms as "politics" or "law" or "objectivity" or "categorical thought." (He also does not sufficiently explain what the realists understood their key terms to mean.) With respect to the last item on this list, it is probably important to know that "categorical thought" and "binary oppositions" have received some influential criticisms in contemporary literary theory and law, and those criticisms have obviously had an impact on Horwitz's presentation of his historical materials.

In fact, however, there is nothing at all wrong with categorical thought. The very notion of a "category" is a category, and it is none the worse for that. To be sure, some categories are confused, mechanical, or harmful; some of them carve up the world in unproductive ways; but that is not an objection to categorical thought. The question is whether particular categories serve particular purposes, and here Horwitz's treatment seems insufficiently concrete, in a way that impairs his treatment of the historical materials. I do not believe that the law of the 1940s was a bit less "categorical" than the law of the 1920s, nor do I think that the realists used categorical thought less than their predecessors. The categories were just different -- if better, because more directly and self-consciously, attuned to the human purposes that were at stake. Indeed, the notion of "categorical thought" is really a kind of redundancy. Thought depends on categories.

 

Or take the public/private distinction, which Horwitz thinks that the legal realists exploded. It seems correct and important to say, as the realists did, that any private sphere is likely to be a product of the public sphere, in the simple sense that legal rules are probably necessary to make private spheres worthy of the name. You cannot have private economic markets without the law of property and contract. You cannot have real privacy in the home without legal protection against both government and other private people.

But that does not amount to an argument against the public/private distinction. We can agree that public rules create private spheres and still insist that for every purpose we care about, there is, and there should be, a distinction between public and private spheres. The real question involves not the existence of a public/private distinction, but the actual and appropriate content of that distinction. Defenders of maximum hour laws, for example, think that this kind of regulation of economic markets makes life better for the human beings subject to them. Defenders of a right against marital rape think that this kind of legal right, applied within the family, is an important way of protecting women's liberty and equality. Both seem to be right, but not because of any assault on the public-private distinction. They are right because the distinction should not be drawn in a way that is damaging to people's lives.

The important question is not whether economic markets are "natural." They are not. Nor is it whether economic markets are "neutral." The important question is more concrete: What sorts of markets, and what constraints on those markets, will improve people's lives? The point is closely connected with the particular changes in American law in the first thirty-five years of this century. What happened, concretely? Here Horwitz offers less detail than might be expected, and this is, I think, a product of his fascination with conceptual shifts. Those shifts were important, but the actual changes of the Progressive and above all the New Deal periods -- mostly coming from Congress and the president -- get short shrift. I hope that I am not complaining that Horwitz did not write a different sort of book; his title promises a discussion of the transformation of American law, and much of his discussion suggests that he is indeed interested in actual legal shifts, not merely or mostly academic ones.

 

Like most law professors, Horwitz might be expected to focus on judge-made law, rather than on congressional and administrative action; but he offers less than he might on what judges said and did. In this period, there was a great deal of change in constitutional law. The Supreme Court did at least three major things. First, it allowed a dramatic expansion in the power of the federal government, permitting Congress to regulate activity formerly thought to be within the exclusive authority of the states. Second, the Court allowed Congress to create new "independent" agencies, that is, agencies not technically under the power of the president (including such important current institutions as the Federal Trade Commission, the Federal Communications Commission, and the National Labor Relations Board). Finally, the Court rejected a range of constitutional challenges to economic regulation, reducing the restrictions imposed by the due process and contracts clauses of the Constitution. The Court concluded that the "economic rights" of the laissez-faire system were not in fact part of the Constitution.

These huge changes in American law raise a number of important and comparatively concrete questions, which Horwitz does not adequately discuss. Some of the relevant reforms were an attempt to benefit the disadvantaged. What conception of the role of law did redistributive programs embody? What was left of the ideal of neutrality? Other programs attempted to stimulate the economy. What role did Keynesianism and its predecessors play here? Still other programs were a reflection of the political power of well-organized private interests, marching under the banner of the common good. In the areas of banking and the regulation of agriculture, for example, the legal transformation often cartelized existing industry, resulting in gains to big (and sometimes little) business but hurting consumers and the economy in general. A historian of the transformation of American law between 1870 and 1960 might well pay attention to this phenomenon.

What were the particular conflicts in these matters? Who were the key actors? What were their goals? Who was helped and who was hurt? And what were the disagreements, about facts and values, that underlay congressional, administrative, and judicial action? Some people think that the New Deal maintained continuity with the original Federalist vision of the Constitution; other people sharply disagree. Horwitz does not discuss this point. And I think that despite some intriguing passages, he spends too little time on the key shifts and turns on the Supreme Court itself.

 

What, then, of the law politics distinction, the organizing theme of this book, and indeed of much academic and popular dispute about law? Horwitz does not define "law" or "politics." When Horwitz criticizes the law/politics distinction, I think he means to say that it is a false and even pernicious dichotomy. I think he wants to insist that the law inevitably reflects human values, or conceptions of the right and the good, and that disputes about law reflect disputes about those values. In this way Horwitz is describing and endorsing the challenge to the bizarre if widely held notion that "law" consists, or could consist, of the mechanical, value-free derivation of rules.

The law often does require resort to something other than rules and mechanics. The Constitution, for example, says that no state shall deny any person "the equal protection of the laws," and without values of some kind we cannot decide what this means, with respect to sex discrimination, abortion, affirmative action, and many other things. But does this prove that law is only politics? Has the real dispute in American law been between the people who think that law reflects values and the people who think that it does not? Can the key to American legal history really be found here? Or is not the dispute over which values the law should reflect, and about the allocation of power with respect to different values, among different government institutions?

 

Any view about the night-watchman state, or about the appropriate role of the Court, has to be supported by arguments or "values." But there are big differences between questions about the state and questions about the judiciary, and these differences help cast light on the distinction between law and politics. The key point is this: sometimes we disable our judges -- people engaged in law -- from thinking about things that are indeed relevant for people engaged in politics. A judge who says that you have violated the 55 mph limit does not say that the 55 mph limit is a good thing. A judge who says that General Motors may not discriminate against women does not thereby announce a political conviction in favor of the anti-discrimination laws. Law, as distinct from politics, often consists of a decision to put certain values or arguments out-of-bounds. Holmes's comment is overstated, but pertinent: "If my fellow citizens want to go to Hell, I will help them. It's my job."

If all this is so, we might see the distinction between law and politics as a form of role differentiation. The distinction says who can do what -- no more and no less. It says that participants in law cannot consider or do certain things. Bans of this kind are so omnipresent that they may be insufficiently noticed. A judge in a contracts case ordinarily pays no attention to the relative wealth of the parties, even though relative wealth is highly relevant to other people making other decisions in other contexts. A judge deciding whether the Fourth Amendment was violated by the arrest of Charles Manson makes no big moral judgments about Charles Manson, even though such judgments are perfectly appropriate elsewhere.

Now whether role differentiation of this sort is a good idea depends, in the end, on values, by which I mean substantive arguments about the right and the good. But it would be most surprising if some kind of role differentiation, like some kind of private/public distinction, could not be justified in just this way. It is true that even with role differentiation, judges have to make moral or political judgments of certain sorts; and many of those judgments will be controversial. But this does not collapse the distinction between law and politics as I have sketched it here. If we thought that law, to qualify as such, had to avoid all controversial judgments of value, we would be adopting an absurdly truncated view of law.

In this light we might recast our understanding of the last century or so of American legal history. The problem with late nineteenth-century legal thought was not that it drew a distinction between law and politics. The problem was that it was based on values that could not be justified -- and that the line between courts and legislatures was drawn in the wrong place. When the Supreme Court invalidated maximum hour laws, it was wrong partly because the night-watchman state is unjust, and partly because its decisions could not be connected with a good conception of the role of the Court in American government. The two points are different. Many good values should not be imposed by the Court in the Constitution's name. It is far from trivial to show, as the legal realists did, that values underlie law. It is no small feat to show that many of the distinctions in the legal culture are a matter of our homely conventions or our controversial politics, rather than facts of nature or metaphysics. But these insights are often thought to do more work than they do. A history of American law should attend, rather, to the concrete controversies of value and interest that concrete legal changes reflect.

 

 

 

Cass R. Sunstein teaches at the University of Chicago and is author of After the Rights Revolution (Harvard University Press) and The Partial Constitution (forthcoming).

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