The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence [Paperback]

Howard Gillman (Author)

Book Description

ISBN-10: 0822316420 | ISBN-13: 978-0822316428 | Publication Date: December 4, 1992

The Constitution Besieged offers a compelling reinterpretation of one of the most notorious periods in American constitutional history. In the decades following the Civil War, federal and state judges struck down as unconstitutional a great deal of innovative social and economic legislation. Scholars have traditionally viewed this as the work of a conservative judiciary more interested in promoting laissez-faire economics than in interpreting the Constitution. Gillman challenges this scholarly orthodoxy by showing how these judges were in fact observing a long-standing constitutional prohibition against "class legislation." Originally published in cloth by Duke University Press, this book received the 1994 C. Herman Pritchett Award for the "Best Book in the Field of Law and Courts," awarded by the Law and Courts Section of the American Political Science Association.

Editorial Reviews

Review

"An important work."—Mark Tushnet, Georgetown University

"This book is of immense importance in the field of American constitutional history."—Michael Les Benedict, Ohio State University

About the Author

Howard Gillman is Associate Professor of Political Science at the University of Southern California.

Product Details

• Paperback: 328 pages
• Publisher: Duke University Press Books (December 4, 1992)
• Language: English
• ISBN-10: 0822316420
• ISBN-13: 978-0822316428
• Product Dimensions: 8.7 x 6.2 x 0.9 inches
• Shipping Weight: 1.2 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #742,332 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

12 of 12 people found the following review helpful:

5.0 out of 5 stars The best revisionist work on the Lochner Court I've seen, April 7, 2003

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R. Price "caesar_42" (Liverpool, New York) - See all my reviews
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This review is from: The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence (Paperback)

Most students who first take a constitutional law course learn the Lochner era in the same fashion: that the justices of the Supreme Court forced their view of proper market relations on the rest of the country (the Holmesian view). This view is perpetuated by the selective choice of cases that most students are exposed to, usually only Lochner, Adair, and Hammer v. Dagenhart. But this view begins to break down as one studies further cases and it becomes clear that for the most part the Court struck down a fairly limited number of laws in this area and upheld the vast majority of state regulations. The subject has needed a coherent, systematic revision for some time and Howard Gillman delivers such a study with clarity and surprising brevity.

Gillman begins with a clear thesis: that the Lochner era jurisprudence was grounded in a constitutional tradition rooted in the founders' desire to form a faction free republic. This tradition held that the states' police powers could only be used in a neutral manner to benefit the general welfare; that the state couldn't use its regulatory power to benefit one faction only. This tradition was based on the assumption that the American economy could provide for everyone in a manner that would protect against social dependency as experienced in Europe. Gillman traces this legal tradition from the founders through the nineteenth century and up to the final demise in 1937. Gillman places the Lochner decision in the context of this tradition and explains that it wasn't really motivated by laissez-faire market views but instead was a good faith attempt to preserve a tradition that was increasingly undermined by the changing industrial relations of America. This work is well worth the read for anyone interested in American constitutional history.

One final word of praise. Gillman is not interested in justifying and resurrecting Lochner in the modern day, as some economic rights activists have called for. Instead he is focused on defusing the claim that the Lochner era was one of rampant judicial activism. Gillman succeeds admirably in his task.