The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888–1921

In 1898, the year Americans first sailed forth to fight in other countries to protect purported victims of imperialism, A. V. Dicey steamed into Harvard University to deliver his lectures on Law and Public Opinion in England. Like William Blackstone, Vinerian Professor before him, Dicey deployed a number of memorable epigrams to capture what seemed basic truths of his day. Dicey's assertion that ‘protection invariably involves disability’ appeared to state the obvious to Americans at the turn of the century.In this essay I will consider how the United States Supreme Court embraced Dicey's epigram and translated it into decisions during the tenures of Chief Justices Fuller and White about the capacity of the individual in the United States to contract and care for himself.

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Moral Philosophy, the United States Supreme Court, and the Nation’s Character, 1860–1910

Canadian Journal of Law & Jurisprudence ◽

10.1017/s0841820900001533 ◽

1997 ◽

Vol 10 (2) ◽

pp. 249-271 ◽

Cited By ~ 1

Author(s):

Mark Warren Bailey

Keyword(s):

United States ◽

Supreme Court ◽

New Deal ◽

United States Supreme Court ◽

The United States ◽

Late Nineteenth Century ◽

United States Supreme ◽

Legal Thought ◽

Late Nineteenth ◽

Laissez Faire

The charge that the United States Supreme Court exercised a conservative influence upon the nation’s constitutional life during the period from 1864 to 1938 is impossible to refute. The Supreme Court during the period from the end of the Civil War to the New Deal era has been portrayed as having largely abdicated its obligation to protect society’s common interests in favour of a laissez-faire constitutionalism reflecting the social and political views of new and powerful economic interests. The judicial conservatism of the late nineteenth and early twentieth centuries conflicted with the political ideals of Progressives and with the direction taken by American policy-makers since the acceptance of Franklin D. Roosevelt’s New Deal in the 1930s. Historians have labelled the Court’s laissez-faire conservative style as undesirable, if not consciously immoral.Nevertheless, the problem of understanding the ideas which lay at the foundation of judicial conservatism should be addressed. General legal historians have preferred to begin and end their inquiries into early influences on the judicial mind with a short overview of legal education and leave aside the possible influence of college studies. In recent years, historians have broadened their investigations of the intellectual underpinnings of late nineteenth-century legal thought in an attempt to provide the sort of synthetic account of legal thought suggested by Perry Miller’s Life of the Mind—a work which attempts to connect the thought of leading members of the bar to intellectual currents outside the legal sphere. The result has been a limited rehabilitation of the Supreme Court’s reputation during the Gilded Age.

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Wine Tourism After The Direct Shipment Revolution: Implications And A Proposed Methodological Framework

International Business & Economics Research Journal (IBER) ◽

10.19030/iber.v5i2.3453 ◽

2011 ◽

Vol 5 (2) ◽

Author(s):

Martin A. Goldberg ◽

James Murdy

Keyword(s):

United States ◽

New York ◽

Supreme Court ◽

United States Supreme Court ◽

The United States ◽

United States Supreme ◽

State Laws ◽

Wine Tourism ◽

Interstate Commerce ◽

The Individual

The United States Supreme Court recently considered challenges to two state laws regarding direct shipment of wine and spirits from out-of-state. Michigan law banned these direct shipments completely, requiring sales from out-of-state to be made through a Michigan wholesaler, even though it permitted direct shipments from within the state. New York law similarly banned direct shipments, although it created a narrow exception for out-of-state wine producers who maintained a place of business within New York. In Granholm v. Heald, the United States Supreme Court considered the constitutionality of these laws in light of the constitutional prohibition against state laws that unreasonably burden interstate commerce. The Court held that these laws did in fact impermissibly discriminate against interstate commerce, and were unconstitutional. It held that a state may permit direct shipments or prohibit them, but it could not create a discriminatory system where in-state direct shipment were permitted but out-of-state shipments were prohibited or burdened with additional costs. This decision left it to the individual state governments to fashion whatever direct shipment laws they wished, as long as the laws did not treat shipments from out of state differently from shipments within the state. As the individual states respond to this mandate, we can see how these new laws will impact wine tourism, actual and Internet travel for the purpose of experiencing and purchasing regional wines.

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