Podcast | The Taft Court: Making Law for a Divided Nation

Podcast | The Taft Court: Making Law for a Divided Nation

In this episode, Robert Post, Sterling Professor of Law at Yale Law School, delves into his newly released and highly anticipated volumes from the Oliver Wendell Holmes Devise History of the Supreme Court, The Taft Court: Making Law for a Divided Nation, 1921–1930. Post explores the history of the Taft Court and the contrasting constitutional approaches among its justices, including Louis Brandeis and Oliver Wendell Holmes, Jr., among others. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This program was originally streamed live as part of our America’s Town Hall series on December 11, 2023.


Hello friends I'm Jeffrey Rosen President and CEO of the national Constitution Center and welcome to We The People a weekly show of Constitutional debate the national Constitution Center is a nonpartisan Nonprofits chartered by Congress to Increase awareness and understanding of The Constitution among the American People this week we're sharing an Episode from our Companion podcast live At the national Constitution Center in This episode Robert post Sterling Professor of law at Yale Law School Explores his highly anticipated volumes From the Oliver Wendell Holmes devis History of the Supreme Court the Taft Court making law for a divided nation 1921 to 1930 Robert post explores the History of the TA court and the Contrasting constitutional approaches Among its justices including chief Justice staff Louis brandise Oliver Wendell Holmes and the infamous James McReynolds it was an honor to host this Conversation with Robert post and I Can't wait to share it with you enjoy The show Friends I'm so excited and honored Tonight to Convene a great scholar of Constitutional law to celebrate a great Achievement in American constitutional Law and that is the publication of the

Holmes devis volume and it's called the Taff Court making law for divided nation It's written by Robert post a sterling Professor of law at elel Law School uh Where he also served as uh Yale's Dean With great distinction uh Robert post Has written and edited many pathbreaking Books which I warmly recommend to you Including citizens divided a Constitutional theory of campaign Finance reform democracy expertise and Academic freedom such a relevant book Right now a First Amendment jurist Prudence for the modern State for the Common good principles of American Academic freedom and prejudicial Appearan is the logic of American Anti-discrimination law and since 1988 He has been working on the volume that We're here to discuss today which is the Result of a bequest by Justice Oliver Wendell Holmes to the federal government Holmes was such a patriate that he Entrusted his legacy to the government Which decided to create a series of Volumes on the history of the Court uh this one like most has been a Long time in the making it's just a Pathbreaking work it is so exciting to Read and I was telling Robert post how How thrilled I was to learn about the Taff Court from 1921 to 1930 in a new Light um and and it's it's just a Wonderful to be able to be in

Conversation with Robert uh Robert post I'm gonna begin first by congratulating You on this great achievement and then Asking you what is it about the homes Devis it's America's greatest Scholars Of constitutional law have been given This daunting home homework assignment Some have died others have gone mad Others have given it up and uh passed on The Baton to another scholar but you Persevered you you've been working on it Since 1988 tell us about the homes Devise and what it was like to complete This one well I was really the the last Person over the Finish Line This volume Which um I completed which is on the Taff Court when William Howard Taff was Chief Justice from 1921 to 1930 it was Originally given to a great Constitutional scholar Alexander Bickle In 1958 and he worked on it for many many Many years and then he died he didn't Finish it and then it was given to Another great constitutional scholar Robert cover uh who was my teacher and Uh Robert cover worked on it for many Years and then he died and then it was Offered to me and I tripled my life Insurance and I took it on and um I I Mean I must say when I when I took this Volume I thought uh homes devis um Histories are portioned by Chief Justice Period and um um and they're given to

You you don't pick your chief justice And I thought when I had drawn the Taff Court I had drawn the Short Straw Because uh in modern times very few People know many decisions from the 1920s from the Taff Court uh and it took Me many many many years to sort of to Get into it and to um learn about it it It has a plethora of archival sources Taft himself has 600,000 letters in the Library of Congress he would every week Write you know 30 40 50 letters um and So it's a wonderful historical Source It's overwhelming historical source and Then of course one has the writings and The letters of brandise and holes and Harland Stone great figures in the History of the Court um but I must say It took it took the Trump presidency Really to um spur me to finish this book Because there are many many similarities Between the Supreme Court now and the Supreme Court in the 1920s uh when Harding became president In 1920 um he was uh he he was elected On a platform of restoring the country To normaly after the Innovations of World War I and that meant turning it to The right and uh he conceived Um the project of changing the court to Packing the court basically to turn it To the right so in 15 months he appoints Four justices decisively changing the Nature of the Supreme Court and these

Justices had an agenda and the agenda Was to return the court uh to what the Juris Prudence had been before World War I and uh they had to do this in the Context of a decade which was intensely Polarized the 1920s um was the time you Might remember of prohibition and Prohibition was extremely controversial It was a time of lawlessness and Divisiveness it was so divisive that in 1920 uh the Congress for the one and Only time in the history of the country Um did not reapportion itself based on a Census and they didn't do that because The census would have given power to the Cities and the cities were wet and the Dry powers that predominated in Congress The prohibitionist didn't want to give Any power to to the wet so the division Between dry and wet was the decisive uh Division in the 1920s and so the Challenge before the court was how do You articulate law in a way that's Legitimate in a country that is Intensely polarized and that's very Similar to what we have on Today superb what a relevant and and Gripping introduction to the Similarities and differences with today And as you say the archival research is Amazing you sat and you found a lot Trunk in the Supreme Court that had the The the decisional records that were Supposed to have been destroyed and you

Bring them to life in such a remarkable Way well in your preface which is so Clear and galvanizing you set out four Distinct narratives about the nature and Purpose of constitutional law visible Within the Taff cord it's so clear you You associate each one with a different Justice and I'll just put them on the Table and ask you to expand by laying Them on the table and then we'll dig Into each one you say one narrative Sought to ground the authority of the Constitution in shared social customs And traditions you associate that with James MC Reynolds a second and a common Commitment to material Prosperity that's Chief justice Taft a third in the Collective political project of Perfecting democracy that's our mutual Hero Justice brandise who's behind me uh Here now and the fourth asserted the Authority of the law including Constitutional law arising from Society's need to establish the orderly Processes of adjustment among groups Engaged in an almost existential Competition for survival that's Justice Holmes tell us a little more about those Narratives so um as I said the the the Challenge of the Court was how do you Articulate a form of law that's Legitimate and law acquires its Legitimacy by being um packed into a Narrative and the narrative is what

Appeals to people and when your Decisions unfold a narrative with which Uh they can identify that's what gives Law its legitimacy and uh today we have Different forms of narratives but in Many of these narratives go back um to The 1920s so the most important Narrative and the one that's almost Invisible to uh many lawyers today and Most people today um was to understand Constitutional law as the product of Custom and tradition so uh the the Constitutional the the meaning of the Constitution was the same as the meaning Of what we would call the common law it Was what people were used to it was what People expected and um today you see um That kind of law in for example tort law So T tort law will say my privacy is Protected and you can't disclose Documents that would be unreasonably Offensive so when the law uses terms Like unreasonably what it's appealing to Is people's instinctive sense of what's Right and wrong what's customary what What a jury would find um in in common Sense to be right and wrong and that was What constitutional law grounded itself In and judges were conceived to be the Experts of the customs of the people This is where Harland Stone began and This was the Domin inur Prudence in the United States say in the 1890s the Customs and usages of the people and

This was profoundly anti-le lative so Uh Congress or state legislators would Pass laws and courts would say well this Contradicts custom in the following way And dress that up as interpreting the Constitution and so it put the judge in A position of superiority over Legislation and the judge who was I Would say the most consistently loyal to This jurist Prudence which already by The 20s was becoming a little archaic a Little oldfashioned was U James R MC Reynolds who is you know known today as Uh you know one of the great bigots on The history of the Supreme Court came From the south um but he he deplored Almost everything that was a change in Existing customs and traditions and The the opposite of that view was Oliver Wend Holmes Oliver wend Holmes had gone Through the Civil War he' been wounded Three times and he understood that at The basis of society was not a unified Custom were not unified views and Beliefs but rather Division and Polarization and struggle that's what he Understood to be at the basis of American society and he confirmed that Um in the what they in the time they Called the industrial Wars between labor And capital there were huge strikes you Know um throughout the late 19th century All the way up through the 1930s um Where labor and capital were at war with

Each other and homes looked at that and Says that's the essence of society it's A struggle for for survival it's very Darwinian and what is the function of Law in that the function of law was to To the extent possible paper over these Fundamental divisions by providing for Orderly processes of change and the only Orderly organ of change that Holmes Regarded as the mouthpiece this was his Word the mouthpiece of the state was the Legislature because you could vote and As the dominant what he called the Dominant opinion changed so should the Law and therefore the Loyalty of the Judge lay to legislation not to custom And tradition because there was no Unifying custom and tradition in Holmes's account of America so between Holmes and MC Reynolds you have these Polar opposite views of what America Society was leads to a polar opposite Set of jurist prudence and of course um Homes invents what we now call Positivism which is the basis of a good Uh deal of modern jurist Prudence modern Originalism for example stems directly From hene positivism it's a form of the What Larry solum calls a fixation thesis That law is a fact and U that it was Settled by these orderly processes and You could know it between these two Polls there were two other much more Normative accounts of what American

Society was about one was embodied by um Chief justice Taft but I if I would say Justices like Pierce Butler and George Sutherland also participated very Strongly in this as did you know it was Common Sense really in the period and The idea was that the function of the American Constitution was to create Prosperity for the American people that The constitution was there to protect The property rights which allowed for The accumulation of capital which was The meaning of civil ization and so you Know many critics have said about Holmes And his court that it was formalistic That they were involved in abstract Rules nothing could be furthered from The truth what they what they did was it Was like uh the law and economics Movement they privileged economics over Politics and they said the function of Constitutional law is to um protect Those rights which allow us to be Prosperous and in the 1920s you know the Um the dizzy 20s where everyone is Competing to make money in the stock Market this was a very attractive Philosophy and um it allowed them to Strike down many forms of Regulation Because in their view it interfered with The incentives which were necessary to Create Capital um Prosperity rested on Entrepreneurial activity which required What's called freedom of contract and so

The Taff Court from this point of view Revived what is known as lochner ISM Lochner ISM says um that one's freedom In the market is to be protected Constitutionally and judges could second Guess any legislation which imposed uh Um reg uh controls on social and Economic life so that was a third point Of view and the last point of view was Articulated only by the man over your Right shoulder um Lewis brandise um and Brand I had a view he said what is America America is not about prosperity And America is not about custom and Tradition America is about democracy America is about the project of Governing ourselves and therefore um When you see legislation it's to be Respected like H said legislation was to Be respected but it was not to be Respected um simply because it was the Dominant opinion it was to be respected Because it was the product of Self-governance of the people themselves So legislation was to be respected Because democracy was to be respected And we take that for granted now almost All constitutional lawyers think of the Presumption of constitutionality which Legislation should have as stemming from Its Democratic warrant that really Didn't exist as a rationale until Brandise and V it during his time in the Court and most especially during the

1920s and uh this was different than Holmes because and a very famous case Called Myers versus Nebraska this is a Case in which Nebraska banned the teach Of German it was a product of the World War I opposition to the Germans you know Americas went kind of crazy during World War I they were 100% americanism so they Had to ban German because they were at War with Germany and the court has to Consider the constitutionality of this Homes a good Progressive says we have to Defer to the legislature because you Know we have to create National Unity so He descends and the majority's opinion Is written by MC Reynolds who was often Viewed as the extreme right-wing of the Court but like brandise he believed that It was customary to learn German so the Legislature really had no business Interfering with the independence of Americans who wanted to learn it and Brandise descents brandise joins MC Reynolds and differs from homes Because He believes that the right to an Education is necessary for democracy so He does it for an entirely different Reason and a reason that would be very Um sympathetic to moderns so different From homes and like um like Taft he Believed in property but he didn't Believe that the purpose of property was To create material Prosperity he thought That the purpose of property was to

Create Democratic citizens so the Regulations of property always had to be Judged against what it did for your Independence as a democratic citizen Which is a very different test um than That employed by souland and Ta superb what a what a riveting account Of the four strains on the Taff court And and let's now delve into each of Them a bit more so let's start with the First the traditional conservative Constitutionalist view that you Associated with Justice MC Reynolds uh The idea is that constitutional law is Customary it's common law in some ways This is the hardest for modern audiences To grasp because as you just told us it Both includes an allegiance to Libertarian ideas of the right to teach Your kids as you pleas um which uh cases That led up to roie Wade um and which Attracted justice brandise but also LED As you put it to a splintering of Judicial conservatism on the court During this period where the MC Reynolds Block along with justices Sutherland and Butler during prohibition thinks their Obligation is to maintain legal Legitimacy by ameliorating the law of Prohibition by acknowledging customary Social values whereas the Taft Wing Believes the Defiance of pro ition Threatens the legal order and and has to Be overridden by law enforcement so help

Us understand that first wing of Customary conservatism uh as associated With James Mcgrs so um we we have lost we think of Prohibition as you know Flappers and People going into uh um speak easys and Uh sneaking drinks and like that um Prohibition was this enormous enormous Crisis in in the American state it was The first great Federal intervention Into people's lives since reconstruction So the project of the federal government Suddenly is to stop everybody in the Country from drinking and Manufacturing And consuming alcohol and they had no Equipment to do this um at all and um Prohibition ran against every ran Against the customs of everybody in big Cities and you have you know you Remember um in babit uh sin clar Lewis You know he's making babbit is making Drinks for his friends does anyone want To break the law um the law breaking was Uh pervasive a Prohibition turned ethnic Working classes against the Republican Party it would prepare the way for Franklin Roosevelt it was and um as a Wonderful observation the those who Enshrined Prohibition in the Constitution thought that they would Make a Prohibition as strong as the Constitution but what it did is it made Uh the Constitution is weak as Prohibition so prohibition is an act of

Positive law it's enshrined in the Constitution it's passed more quickly Than any amendment in the history of the Constitution um more solidly you know um And um and all of a sudden no one obeys It and they say we're going to nullify Prohibition and and the prohibition is Saying how can you nullify the Constitution we will have no law to Which the response was well you in the South who promoted prohibition are Nullifying the 15th amendment you're not Allowing African-Americans to vote what Do you mean no one can uh you can't Nullify and it promotes this great Juris Prudential crisis of what is law is it Law because it's been ratified or is it Law because it corresponds with the Customs and traditions and what people View as legitimate and reasonable in Their lives and prohibition um creates This enormous controversy over this Subject and more and and interestingly Enough on the Supreme Court it divides Divides the conservative block into two Halves so we have um people like MC Reynolds and Butler and Southern who Deeply are committed to the idea that Law to be legitimate has to be Reasonable it has to correspond to what People understand to be legitimate and So they're very Anti-prohibition if you actually look at The um the voting patterns you can see

That these conservative justices do not Join the court um nearly as much on Prohibition cases as they do on non- Prohibition cases and in fact Prohibition cases are much more tend to Be much more divided much more five4 the Court at this time you know 80 84% of Its decisions are unanimous so it's a Very it's a court that's following Different customs and traditions altoe In terms of its in terms of descent but There were a lot of descents only about 73% of its decisions are unanimous in The context of prohibition so you get a Block of conservatives who are saying we Have to amili at um the rigors of Prohibition in order for prohibition Itself to be legitimate and they are Contradicted by homes who's a positivist Who says okay the people wanted to be Extreme I have to be extreme with the People and uh Taft um thinks that the Revolt of the elites against prohibition Undermines the rule of law itself so the Only way to sustain the legal order is To enforce prohibition with with Augmented uh severity so Taft and Vanaver and Sanford um they in the Context of prohibition author decisions That look just like homes and positivism And in fact one way to understand what Happens in the New Deal is the Positivism the nationalism prohibition Is also National and it's very contrary

To the traditions of American federalism Which is to De decentralized Decision-making about liquor and other Uh regulations of consumption to the States and in this context these Conservatives are nationalists and They're positivists and this prepares The way for many of the decisions in the New Deal when positivism begins to take Over as a dominant thing it's prepared For by these conservatives and when the Prohibition is repealed um conservative Positivism dies as a tradition and it Doesn't come back until William renquist William renquist is an example of a Modern conservative positivist as is for Example Scalia and it reemerges um only You know 50 60 years later um after the Repeal of prohibition on the Conservative side the most interesting Um figure here I think is brandise Brandise on the one hand respects Prohibition and wants to enforce it Because the people wanted it on the Other hand he has a very strong sense That law which is perceived to be Illegitimate um can't really uh serveice Law um prohibition splits progressives In half half progressives like the Social workers support it and many say This is destroying the legitimacy of the Federal government which will never Again pass a a progressive agenda so we Have to we have to get rid of

Prohibition so progressives were quite Divided as was brandise and the way in Which he in the end in a case like Olstead in his descent in olad um seeks To amiliar it is he says he says it About um the fourth amendment that the Fourth amendment protects privacy and How do you know privacy by the very Norms of customs and tradition Which the traditionalists were using to Uh limit economic regulations and so in By by he's brandise is driven to that Position and that form of liberalism That that resists positive State Regulation in the name of dignity in the Name of um of traditions doesn't Reemerge on the left until decisions Like grisal in the 1960s wow such a a powerful reminder of Brandise using this common law Methodology to gloss the meaning of the Fourth amendment in an age of new Technologies and all of them unanimously Converging around substantive due Process rights in Myers and Pierce the Right to pursue happiness I must ask This um Justice Thomas in the do's case Suggested that substan of due process is Completely inconsistent with original Understanding do do the opinions in Myers and Pierce suggest otherwise that Various wings of the Taff court all Embraced it um I would say um everyone Uh in the 1920s embraced one form or

Another the question is how extreme it Had to be I mean even is lner descent um Uh uh homes leaves room for uh a form of Substantive to process if it if it is Outrageous enough but um the idea of the Modern originalist like Thomas um that Would have been inconceivable in the 20 Nobody thought of con the Constitution The way Thomas thinks of it now no one Thought of it as a simple fact um they Thought of it in terms of these larger Narratives and in terms of the Legitimation of law itself and they Always um thought back to how law was Being legitimated rather than um some Method or another method that's not what They would think about um in the in the First place and I think it's fair to say That um most of the justices in the 20s Homes least of all Holmes was the most Positivistic but um with the exception Of Holmes um they understood that American citizenship had a moral content And one had to be independent to be Immoral and so they strove to create a Constitutional law that would protect The independence of Americans uh in and They differed in what they understood Substantively that Independence to Consistent so um for MC Reynolds it Consisted in traditional Uh traditional rights to marry to raise Kids to be the pot of familias in your Family um for southernland and for Taft

It consisted very much in Entrepreneurial Liberty um you know none Of this is cast as an originalist it's Understand what do you need to be in Order to be an American citizen and for Um for brandise it's very much um you Have to be politically empowered and you Can't be politically empowered if you're In need if you're in necessity if you're In such want that you have no leisure if You have no education if you have no Right to speak Etc the goals of Taft and brandise um as You put it are in the case of Taft Economic prosperity and material Well-being and the protection of Property rights and and brandise the Promotion of democracy and the Perfection of the individual uh TS hero Is Alexander Hamilton who he thinks Along with James Marshall is the Greatest constructive States And brandise is Jefferson and those Goals economic Prosperity as opposed to Democracy and individual liberty are it Sound like Hamilton and Jefferson what What do you what do you make of the Suggestion that the tap vision is Hamiltonian and the brandise is Jeffersonian well there's something very Hamiltonian about that because they want A construct an economy um but you there The economy is one dimension other Dimensions have to do with empowerment

For example ex Le so brandise unlike Jefferson wanted a positive State he Wanted a state that would Empower Citizens Jefferson wanted to leave the State out as much as he could except for We know creating state universities you Know he had some some active forms of State but for the most part he wanted a State that was minimal that didn't Intervene whereas brandise is saying Look under modern conditions the state Has to intervene to protect the Powerless or they will be oppressed by Private economic power I mean brandise Is Central image of the United States Was you have large trusts who are Oppressing the massive population who Are workers they're destroying the Unions by which workers can defend Themselves they are depriving them of a Living and of a life and therefore They're depriving them of the ability to Be um Democratic sovereigns that was his Central image that would be very alien To to Jefferson as an image and and uh Say more about the National Power versus States rights dimension the Taft Wing is Generally nationalistic uh especially in Its approach to Prohibition and Taft Famously dissents in the Atkins versus Children's Hospital case where the Majority in an opinion by Justice Southernland strikes down maximum hour Laws by the District of Columbia and

Taff descents on federalism grounds and Wants to defer to National Authority is Is Taft generally uh nationalistic in His Outlook and how does that square Into his willingness to invalidate Economic regulations you know it's so Interesting because uh nationalism is a Very complicated subject um uh in the Early years of the 20th century in the Late years of the 19th century so the Republican Party platform after the Civil War is we want to create a National market and we want to protect a National market so the Supreme Court um Was traditionally an agent of Nationalism it used dormant what's Called dormant Commerce Clause Doctrine To strike down state regulations which In the Supreme Court's view impinged on The National Market um and so they Created uh in in um what's called Diversity jurisdiction that is people Can come to federal court if they're Citizens of different states and that Meant National corporations were always Seeking uh to bring their lawsuits Against them into a federal court and The the the federal courts created What's called General Federal common law To um protect National corporations and The National Market and these differed Very much from state law so there was um National corporations which were of Course highly Republican always wanted U

Federal courts to have more jurisdiction Because they created um uh a jurist Prudence which was very friendly to the National Market on the other hand the Democratic party which was the party of The South was very states rights and it Was opposed to nationalism but think of TR as a you know characterist Republican And then Along Comes World War I World War I um really has not been theorized In the history of American Constitutional law but it had a massive Massive massive impact on um the way in Which the court and the way in which the Country um regarded uh economic Regulation and regarded the federal Government in particular so World War I Comes along it's the country's first Encounter really with Total War uh with International Total War and The uh uh in 1912 you know it was Intensely controversial every time Congress passes a regulatory statute Because it should be in the States and It's Le fair and it was a time of Lochner and Along Comes World War I and Um the federal government takes over the Railroads it takes over the telegraphs It takes over the telephones it sets Prices for food it sets prices for Energy it regulates what you can can Cannot consume it recognizes unions it Sets labor prices it uh it creates Arbitration for um um for Labor uh uh

Disputes I mean total control of the Economy more than has ever existed uh Since then actually and it's a it's Total shock to everyone everyone Recognizes that you cannot win a total War in the 20th century unless unless The federal government can completely Control the economy because that's what Germany is doing because war in the 20th Century is a question of national Production and The war ends and as lenberg the famous Historian put it woodel Wilson ends his Administration in a riot of reaction he Dissolves every Federal agency which Have controlling every aspect of the Economy leading to the huge inflation And the huge crisis of 1919 but um it's Because the country was horrified what Did it done to itself and that leads to The massive election of Harding and the Theme of normaly and the court is now to To erase The impact of World War I but that had a Lot of implications for federalism too So the Taff court is actually quite um Discombobulated on the question of Federalism when it comes to say National Congressional power on the one hand um It understands for example um it takes The lesson of World War I that the the Railroads are a national transportation System and they can only be regulated at The national level it had never existed

Before before that the ICC was there Basically to protect shippers uh farmers And states and afterwards they the ICC The interet Interstate Commerce Commission is um tasked with this with a Revolutionary statute the Transportation Act of 1920 with creating an efficient National transportation system so anti Trust considerations with respect to Railroads are put to one side and the Function of the ICC is to keep rates High so the railroads have enough Capital to create an adequate system and The whole of the rate structure of the Railroad system the United States is now In the hands of the I this couldn't have Happened before World War I before World War I um America did not keep statistics Uh economic statistics um uh um with They didn't have enough information to Do this form of Regulation suddenly in World war1 when it had transformed the Economy into a war economy um economists Flocked to Washington DC the St Statisticians were hired by the federal Government for the first time and this Is the first time we created a national Statistics Bureau it's we created Economic econometric knowledge to um That would set prices in uh in the United States and direct production to War it's this expertise which is now Applied to the ICC after after the war Couldn't have happened and the Taff

Court is fully in support of that Because they understand that the Railroad system is a national system on The other hand they pass a statute which Um bans uh child labor and they pass a Statute which taxes child labor and the Taff Court strikes it down uh on the Grounds that you know we're a federalist Country and this is beyond the taxing Power and and the interstate commerce Power of the federal government totally Inconsistent views and um reconciling These views is actually an interesting Project in the book and it it has a lot To do with what sort of property is Being regulated and and things like that It's speculative but what you can see is There's really intense confusion about National versus um state in the years in The 1920s as the country is assimilating And responding to and and reacting Against the extreme nationalism of of World War I that's so interesting and it helps me Understand the complexity of the Division among the conservatives on this National versus state power I must ask Because I'm so eager to understand the Answer about uh a period before you Right and that is the re the Postreconstruction era why was it that Mostly Republican justices after the Civil War divided on the states rights National Power question in decisions

Like the slaughter house case refused to Apply the Bill of Rights against the States and that only Justice Harlem was The consistent nationalist but the Others are striking down all sorts of Federal laws about slavery I'm trying to Understand this int Republican division On the Supreme Court for this long per Perod on the question of National Power Well I think that I I you know the Federal government was not a major Player in the lives of people before the Civil War and the federal and the Civil War had a similar effect to World War I It was this massive eruption of National Power and um as a result of that it Creates a very confused wake just like World War I creates a very confused wake And you see people going in different Directions one consistent theme of the Republican Supreme Court after after it Is um is the creation of a national Market and the creation of the dormant Commerce Clause with some exceptions um You might call the meterological Exception so for example the um uh the Court rules that insurance is not is not Commerce so um the federal government Can't regulate insurance and the Insurance markets become vulcanized in States because there can be no National Regulation of them um and uh and it's Not until the Taff court that they begin To get access to Federal Court um

Because it's viewed as a as Commerce Etc Half court brings all of this back in it It completes the project of of Nationalization on the other hand There's you know reactions we don't want Too strong a federal government and that You know that leads to the well among Other things the emasculation of the 14th and 15th amendments and it leads to Um slaughterhouse and it leads to the Court not wanting too greater Federal Presence and too greater Federal Judicial presence in the everyday lives In the domestic lives as opposed to the Market fascinating and that uh leads me To ask about how the Taff Court Completed that project of economic Nationalization you say that contrary to The claims of some historians the Taff Court did not seek to use the 14th Amendment to prohibit class legislation The war had ratified and Sanctified the Public interest constitutional question Was not so much whether State regulation Was captured for the benefits of Particular classes as to whether Government management was so intrusive That it compromised the necessary Independent of Americans tell us more About that vision and how it defined the Economic Cases well I you have to understand the Way the way that property was understood In the 1920s property uh we now make a

Very sharp distinction between personal Rights and property rights and this is a Legacy of the new deal and of the the Repudiation of lism but uh in the 1920s And and before that uh people would not Have sharply distinguished property from Personal rights they they would consider The right to participate in the market Uh and the right to accumulate property As personal to the person and as Necessary to build character in the Person property was a form of discipline There are many Taff Court decisions in Which they're just the question of Native American Property which was uh You know could you tax them could you Not tax them and it's always theorized In terms of the character building Properties of of owning property and That's the way it was understood so it Was a fusion of being moral and Entrepreneurial was it was at the Intersection of these two things Property so you get a case like a Meer Or Pierce which today are substantive Due process and they have to do with Dignity and religious rights free Exercise at that time you see them cited Indiscriminately in economic cases and In um and in uh what we would Now call Personal rights cases and you you see uh Unanimity um among all the tff court Justices in a case like um wolf packing Uh um versus the Industrial Court of

Kansas which is a massively important Case that is totally lost to the modern Imagination so uh what what you had in 1919 were were terrific strikes more People were on strikes in the year 1919 Than ever before or since the whole Economy the whole steel industry was on Strike there was a a general strike in Seattle um the bulvik revolution that Just happened in Russia people were Terrified of Labor unrest uh and and the The the the public begins to say well if There's a strike uh who's going to Protect the public if suddenly people Don't have coal U because there's a Train strike and I can't get coal and I'm going to freeze and I can't cook um Who's going to protect the public when The trains go on strike and you know and The prodos can't get to the cities um so The public becomes the Arbiter it's not No longer are you regulating for one Class or another you're regulating in The public interest and it had to be the Public interest remember World War I was All this regulation in the public Interest so the opposition is now Between the public interest and uh my Ability to to strike and so Kansas said Enough of this they had a roselan Governor named Allan and uh he said we Are not going to be at the sufferance of Labor and capital um we're going to Create a Kansas Court of industrial

Relationss and we're going to have Forced arbitration so people have to Work for the way ages that we adjudicate But they have to pay the wages that we Adjudicate and um this question of Whether you can have forced arbitration What and labor hated it and capital Hated it brandise hated it because he Thought it was inconsistent with Independent persons to have to work for The state at forced wages uh and it was A unanimous decision striking it down For example and it shows you know what People had in common the and now we have To unpack how they differed but they had This in common that the public interest Had limits when you think about how the Taff Court cemented the nationalism um a Case like teral versus Burke which we've Lost touch with we now speak about the Doctrine of unconstitutional conditions We say that Congress cannot give a Benefit and attach to it as a condition That you wave a constitutional right the Taff Court held for the first time that States could not impose on corporations A waiver of the right to go into federal Court so insurance companies as I said Were not viewed as interstate commerce And so they were stuck in state court And when a state would allow a foreign Insurance company in they would put as a Condition that they wave any right to Bring any suit or to remove any suit to

Federal court so they didn't get access To this General Federal common law Taft Comes in he says the first thing we have To do is to rationalize of the National Market by expanding General Federal Common law by um by saying it's Unconstitu tional for the states to Force um this waiver of your Constitutional right to have access to Federal courts so the Taff Court Invented the idea of unconstitutional Conditions it does it to cement the National Market wow all right well that Brings us to our hero Justice brandise And you so powerfully argue that he was Distinctive and unique on the court in a Vision of perfecting the Democratic Citizen and his great faith in democracy To to uh improve society and allow People to reach their potential uh you Note that he did not get this from Jefferson where where might he have Gotten it and and give us some of the Leading cases in which Brandise spells out this vision of Democracy well you know it's very Interesting because um he he he writes Almost no memorable Court opinions During the 1920s Taff gives him he Creates the rudiments of administra of Law he's Taff calls him in the intra Court correspondence the pope of Interstate commerce because he gave them All the ICC cases very complex no one

Knew how to handle this new ICC and how To figure out what the administrative Law there was no administrative law at The time and brandise invents it but It's very um rudimentary by modern Standards so we've lost all these Decisions but that's where he chiefly Wrote opinions and everything he does is In a Descent um so Um for example uh one of the most in uh One of the things I should say is in the Way in which we've lost track of it the War between labor and capital was Central um to American identity in uh The first 30 years 40 Years of the 20th Century and especially in the 20s Because in 1919 it exploded in the worst Kind of industrial Warfare and and so People's view of uh labor and capital Was extremely important and when Taff Became Chief Justice in 1921 he offered Um four a quartet of four extremely Important decisions uh that infuriated Labor and led labor to make a res the AFL resolve to end judicial review and Lafalot picks this up in his 1924 Campaign he gets support from the AFL to End a constitutional amendment to end Judicial review and um these four Decisions included striking down the Child labor Tax Act And it included decisions about when People can pick it and how they can pick

It and it included uh decisions about The application of the antitrust law to Labor um Etc but the the most Interesting of these is a case called True acts so Arizona um well I should go Back and say when The Clayton Act was Enacted in 1914 The Clayton Act said Basically that federal courts couldn't Issue injunctions to intervene into Labor disputes because the labor Injunction was killing strikes uh uh Federal courts were very uh um favorable Toward capital and so when there was a Strike they would go into court and they Would enjoin the court so labor Mobilized and under the Wilson Administration which was very friendly To labor they passed The Clayton Act Which seemed to say that they couldn't Issue an Injunction well um it turns out it was Very weasly the words and the Supreme Court holds in 1920 that yes uh actually Didn't mean what it says and they can Issue injunctions and in fact not only Uh can they issue injunctions but they Can issue more and better injunctions Than they could before The Clayton Act So the scene is set for an explosion of Federal injunctions and an extreme Hostility between the labor movement and The Supreme Court of the United States And these decisions are are exacerbating This tension so uh as a as a before the

The Clayton Act but like the Clayton act Uh Arizona passes a law saying that its Courts cannot issue Injunctions um and so they can't Intervene in labor disputes to protect The property meaning the freedom of Contract of the employer and this Decision comes to the Supreme Court of The United States during Taft's first Term comes in December he his first term Starts in September of 2011 this Decision is in December of 1921 and Taft Holds F this a five to four decision Ision Taft holds that first of all it Violates um due process to ban any Remedy for the property of the employer Which is a really interesting decision Because it implies that the constitution Gives affirmative rights if you ban all Remedy then you've lost the Constitutional rights it's exactly Opposite the modern Court which holds You have only negative rights you have Rights to prevent government from doing Something here ta is holding the Government has to intervene to protect Your right otherwise it's Unconstitutional so it's one of the few Decisions that have held that there's an Affirmative constitutional right to a Remedy um to to have the federal Government intervene to protect you so That's one holding but then he says Suppose that Arizona only banned

Injunctions as a remedy they allowed Other remedies like damages um he said That would be a protection of equal Protection law um because it doesn't Treat uh other disputes between Employers and other people the same as It treats disputes between employers and Employees it's it was a very bizarre Argument but actually it kind of Anticipates modern narrow tailoring it Basic he basically argued it was under Inclusive um no one at the time Understood that argument they viewed it As like this crazy pro- Capital decision By a conservative Court brandise um Dissents in that and it's one of the Most profound dissents that he writes Ever and in this descent he says well um How are we to understand whether it's Con tional or not he says the problem With Constitutional um with constitutionally Setting aside uh of legislation like Arizona's legislation is you're setting Aside the results of democratic Deliberation and when you have Democratic deliberation to intervene in The market you're always trading off Values the value of for example um Allowing labor to make a living versus Uh um versus the right of the Entrepreneur this is a balance this is a Matter of judgment says brandise and in Matters of judgment we have to trust the

People themselves because judgments Always have many solution judgments John RS would Now call that the burden of Judgment and brandise is articulating This idea that you you never really know An answer so you have to trust the People um in doing it and and to know That you have to um you have to have Respect for the outcome of the Democratic process and you have to have Experimentation you have to allow them To try different things otherwise we'll Never know what the solution to this is This is a very profound understanding of The role of judicial review which I Think most moderns just take that for Granted what I just said to you no one Had ever said it before brandise in this Descent Remarkable all right well uh we have Just uh seven minutes left and it's time To talk about Free Speech uh Holmes and Brand I is well known write some of the Great free speech to sense of American History in this period help us Understand uh first of all where Brandise got his famous test in Whitney That speech can only be banned if it's Intended to him likely to cause imminent Violence Jefferson had flagged it in the Virginia Declaration but brandise Refines it more explicitly than anyone Else and because it's in the news and Our listeners would like to know I'm

Sure did did the college presidents get It right in their testimony before Congress when they said that uh the Calls for genocide uh would have to uh Be evaluated on a contextual basis in Order to meet brandis's Whitney standard Or Not so the first thing we should say About the presidents is that they were Articulating a test I'm sure they not Articulating the Whitney test they were Articulating a test of a case called Brandenburg versus Ohio and brandenberg Versus Ohio says you cannot penalize the Advocacy of illegal conduct like Genocide unless it's imminently likely To happen and you intend for it Imminently likely to happen and so the Presidents were saying it's contextual In exactly the way that um the the first Amendment requires it to be understood To be contextual it is not a it is you Cannot penalize the advocacy of gen of Genocide if you're in public discourse If you're in a newspaper if you're on a Street corner Etc and the irony of what Just happened to those presidents is That conservatives in Congress have been Calling upon Universities uh to uh to comply strictly With the First Amendment First Amendment Rights Free Speech rights and that's Exactly what the presidents were doing When they gave those answers and now you

See um these same politicians ragging on Them for not complying with the first For complying with the First Amendment And they shouldn't they should have a Different standard um in a university Now I myself believe that universities Are not governed by the First Amendment They're governed by academic freedom Because universities are communities and And in no sense can a community survive If you have the rigorous standards of The First Amendment so an easy way to See that is if there's a young you know Crazy professor in the astronomy Department and he writes an article Saying the moon is made of blue Cheese and he writes that and um the Government can't penalize him for that Even though it's wrong but the University can deny him Tenure right universities make content Based judgments all the time they make It for students that's called Examinations they make it for professors That's called tenure and hiring and Grant giving um we govern ourselves According to very different logic um Than the first amendment and um all Along we do that and so that is the Irony of what happened to those um to Those poor presidents but brandise in Whitney is extremely clear um that free Speech is a product of um governance It's about citizens governing themselves

So it pertains to speech about what in That opinion he calls political truth It's about how we should govern Ourselves it's not about all speech it's About the speech um about speech in Which we attempt to make government Responsive um to us and this test of Imminency which he got which he Articulates in there he actually gets From a H's descent in a case called Abrams which was in November of 1919 so The imminency requirement comes from Holes but what's distinctive about Brandise in that opinion holes had Talked Epistemologically about the marketplace Of ideas about we can never get to truth Unless we allow everything that's a like The wrong idea that truth is what Everybody believes the last place you'd Look for truth is the internet to know Whether vaccines cause you know caus you To have an implant in your brain you Glow in the dark you would not look to What everybody believes that's not a Good Criterion of truth but that's what Holmes says brandise modifies holes and Says it's not about truth it's about Politics it's about how we live in a Democracy where we have to govern Ourselves and we're responsible for Governing ourselves and therefore speech He says is an Obligation so what forms of speech are

An obligation the forms of speech in Which we participate in the governess of Ourselves and that's not every form of Speech there's only some forms of speech When I go to my doctor I'm not Participating in self-governance so it's Not going to be governed by bazian Standards Thomas presently makes that Mistake he says he says we want to have A Marketplace of ideas between Physicians and their Patients well I mean I hope his doctor Doesn't abide by that I hope his doctor Abides by malpractice standards so that He has to say competent medical advice And not as governed by the marketplace Of ideas um and brandise knew that full Well and he articulates that beautifully In Whitney by the way something you might Not know in Whitney in gito right before Whitney um the court applies the First Amendment to the states for the first Time and when I got access to the docket Books of um of of stone I discovered for The first time was van devanter in Conference who said it should apply to The states that's where it comes from Wow those the docet books were amazing Was so so exciting to read about that Well it's time for closing thoughts in This wonderful discussion um I'm loathed To close of course like Lincoln but um And and please uh sum up as you think

Best but I'll just ask you what the Taff Court can teach us about the court today I think the Taff court for me became a Model of people who really passionately Believed in a consistent Jurish Prudence Arguing with each other and what I loved About the court came to really love About these people even though I Disagreed with many of their views was Their integrity was their was their Passion Um and when you see a clash between People who genuinely believe and have Thought through to the bottom what they Believe in that's a remarkable thing That's an inspiring thing and I hope our Court can live up to that you know that It can it can have the integrity and the Depth to have a jurist Prudential Vision That is coherent all the way down to the Ground and articulate that and Inspire Us with different visions of the Constitution he here beautifully said Professor Robert post the home devise is An act of national service Justice Holmes felt it his duty to the union to Leave his treasure to the federal Government and the greatest legal Historians in American history have been Selected to work on this important Project um it is an honor to interview You about your pathbreaking work Congratulations for having discharged Your responsibility so nobly thank you

For educating us and friends thank you Thank you for joining in you're so lucky To hear Robert post talk about his great Home devise and now of course I want you To continue your education by reading The book order it as soon as it's out And read and learn and grow together Robert thank you so much for a wonderful Discussion thank you Jeff this episode was produced by Lana Ook Bill Pollock and TAA tabber it was Engineered by Kevin Kilburn and Bill Pollock research was provided by Yara Dees Cooper Smith Samson MAA shé check Out our full lineup of exciting programs Starting next year and register to join Us virtually at constitutioncenter.org Recommend the show to friends and Colleagues donate for the holidays and Always continue your learning about the Constitution by tuning in to the NCC are We the people podcast live at America's Town hall all the great educational Resources it's so meaningful to learn With all of you in these challenging Times sending warm wishes for the Holidays and on behalf of the national Constitution Center I'm Jeffrey Rosen

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