A Supreme Court To Be Proud Of

Pundits of every stripe are busy assessing the impact of recent changes in the U.S. Supreme Court’s composition. There may be no better model than the court’s record under the tenure of Chief Justice Melville W. Fuller.

Courts are often tagged with confusing and superficial labels, such as "conservative" or "liberal" — terms loaded with political baggage and often manipulated by those with an ax to grind. I prefer more clarifying questions: Does a particular court interpret law or manufacture it? Does the court apply the Constitution according to what the text says, or does the court abandon the text to accommodate alleged "needs" of the moment? Were our liberties more secure or less secure after the court did its work?

The Fuller court did not stretch either the law or the Constitution beyond what the words said. When the justices found law to be in conflict with the Constitution, they usually sided with the latter, because liberty under the rule of law was their highest priority. The court upheld the importance of a limited federal role, strengthened the role of the states in our federal system and defended property rights.

Melville Weston Fuller was born in Maine in 1833, but later moved to Illinois, where he became a successful attorney. As a Democratic legislator in Illinois during the Civil War, he opposed secession and slavery but didn’t believe in quashing dissent and due process to vanquish them. He opposed protectionism as special interest legislation that hurt consumers. He scrutinized public spending for waste and favoritism.

In 1888, President Grover Cleveland wanted a chief justice with an unblemished record of integrity who not only shared his limitedgovernment philosophy, but also was a good business manager who could fix the high court’s backlog of cases. Fifty-five-year-old Fuller was precisely the person Cleveland was looking for.

Fuller charmed his fellow justices with good humor and a remarkable capacity for friendly persuasion. He began a custom (still in use today) of requiring each justice at the start of a working day to shake the hand of every other justice. Through efficient administration, he solved the problem of the court’s crowded docket.

When economic freedom was at issue, the Fuller court did not carelessly allow governmental interference. An example: Prohibitionists in Iowa secured passage of a law forbidding the sale of an interstate shipment of liquor, but Fuller, writing the court’s majority opinion, declared the law a violation of the Constitution’s commerce clause.

In other commerce-related rulings, the Fuller court restricted the application of the almost incoherently broad language of the Sherman Antitrust Act. It was left to later courts to distort the commerce clause and justify federal regulation of virtually every corner of the economy.

Every law school student studies the Fuller court’s decision in Lochner v. New York, which is routinely held up as emblematic of "heartless" 19th century laissez faire. New York law made it a criminal offense for both the employer and the employee whenever bakery employees worked more than 10 hours in one day, with no exceptions even for emergencies. Fuller joined the court’s majority in throwing the law out because he saw it as a nanny-state intrusion that was condescendingly paternalistic toward workers. If workers could be drafted by the government for military service, why couldn’t they be allowed to decide for themselves if they wanted to work long hours in a bakery?

The Fuller court was also far more respectful of property rights in eminent domain cases than was last year’s Supreme Court majority, which shredded the constitutional requirement that eminent domain be used for public, not private, use.

In 1895 the Fuller court rejected a federal income tax passed the previous year. Pleas that Congress needed the money and egalitarian claims against other people’s wealth carried little weight with the court.

In Melville Fuller, the country had a chief justice who believed in upholding, not remodeling, the Constitution. When he died in office in 1910, he was the same man he had been 22 years before, in that he didn’t succumb to temptations of power and ego by discovering vast new constitutional duties for the federal establishment to inflict on the people.

If the Roberts court can measure up to the Fuller court, America and our liberties will be the better for it.

Lawrence W. Reed is president of the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.