In ... most [states] on the Continent of Europe, the ... rules ... stand, to a large extent, in the form of positive statutes, or Codes, enacted by the arbitrary power of the sovereign, or by the authority of the legislative assembly, where such a body exists ... [codification] is a characteristic feature in those [states] which have a despotic origin, or in which despotic power, absolute or qualified, is, or has been, predominant.
James Coolidge Carter, The Proposed Codification of the Common Law (1884)
The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental government, is not alien to the code which survived the Roman Empire as the foundation of modern civilization in Europe.
Justice Thomas Stanley Matthews, Hurtado v. California (1884). Subsequently quoted in Justice Henry Billing Brown's opinion upholding workhour restrictions in smelters and mines, in Holden v. Hardy (1898), and in the opinion of Chief Judge Alton B. Parker of the New York Court of Appeals in People v. Lochner (1904).
The American administrative state emerged over the course of the 19th and early 20th centuries out of protracted conflict over the status of the common law within it. The writings of prominent legal commentators throughout this era attest to this proposition. (1) Yet the meaning and significance of the common law within this historical context is currently ambiguous. For a generation or so following the New Deal, a conventional wisdom on this issue did take hold: viewed through the prism of legal realism, (2) common law ordering became synonymous with formalist rationalization of legal outcomes that served the interests of economic and political elites. (3) Within this narrative, the common law was the handmaiden of "laissez-faire constitutionalism" and became indistinguishable from extreme flee-market ideologies. (4) Its putative opposite was nothing more than sensible governmental involvement in society and the economy in pursuit of remedies to the inefficiencies and inequities of the marketplace. Defined in this fashion, the controversy surrounding the common law was a relic of an earlier era that had been resolved once and for all when the New Deal buried laissez-faire constitutionalism. By implication, the conflict had little relevance to contemporary political life.
One cornerstone of this construction was a long-dominant interpretation of Lochner v. New York. (5) For much of the 20th century, the case stood for judicial usurpation of the common law for partisan purposes. (6) In the 1970s, however, legal historians began to call into question the thesis equating the Lochner decision with unvarnished laissez-faire ideologies. The intervening decades have produced a wealth of revisionist scholarship that has challenged, in various ways, the notion that in order to invalidate the workhour restriction at issue in the case, the Lochner Court invented a constitutional rationale out of whole cloth. (7) In the process, this line of research cast serious doubt on previous equations between laissez-faire and common law constitutionalism. One logical implication of this shift is the reopening of what was once seen as a resolved question: What defined the administrative paradigm against which common law ordering was pitted, and what was at stake in the choice between the two during the Lochner era?
This article argues that continental civil law provided the competing paradigm to that of the common law, and that at the core of these respective regimes stood divergent models of administrative governance. (8) The civil law model relied on centralized, agency-based, state administration aimed at the implementation of regulatory standards through expert legislators and bureaucrats. The common law model fundamentally distrusted bureaucratic administration, and as a consequence, identified courts as the proper locus for administrative governance. In contrast with the civil law, it gave judges and juries the final say on the necessity of regulatory interventions to protect public health and safety, empowering them to oversee actions by both administrators and legislators. The choice between these models was at the very core of late 19th-century police-power debates. (9)
The use of the term "police power" as a synonym for regulatory authority itself attests to the influence in America of continental models of administration. Police (polizei in German) was at its essence a continental concept connoting family of regulatory institutions in the German cameralist vein. (10) Within that tradition, both the meaning of public interest and the means necessary to protect it were a matter of sovereign prerogative. A countervailing common-law-based view delimited the state's regulatory authority under the police power to actions the courts would uphold as properly designed to enforce public nuisance law. The latter was defined, in turn, as the authority to protect public health, safety, morals, and sometimes welfare. This formula permitted, at least in theory, a very broad scope of governmental interventions, few of which could not be construed to serve at least one of these goals. Given this broad substantive scope, the primary difference between this common law version and its continental counterpart was not in the regulatory domain which it defined. Instead the cardinal difference pertained to which institution should be entrusted with ultimate regulatory decision-making authority, and, by implication, the standards that ought to govern regulatory interventions. The continental model provided for regulatory decisions informed by legislative and administrative expertise. The common law gave precedence to the communal norms and lay knowledge that juries could bring to regulatory decisions and the specialized knowledge of legally-trained judges. From this distinction followed important implications regarding the utilization of law as an instrument of social and economic change. The civil law made possible an interventionist and reformist model of administrative government; by contrast, the common law imposed significant barriers before the implementation of state-initiated social and economic reforms. Not coincidentally, reform agendas of this type often made their way to the United States from France, Germany and elsewhere on the continent.
Fear of the influence of radical French immigrants helped spawn the passage of the 1798 Alien and Sedition Acts. (11) These attitudes continued into the Jacksonian period with Democrats and Whigs taking opposing views on immigration from the continent and the reformist agendas these immigrants carried with them. (12) The 1848 revolutions in Europe greatly sharpened this divide with the subsequent arrival of hundreds of thousands of refugees from the continent, (13) among them an influential group of radical reformers who took on transformative agendas across multiple social and political spheres. (14) By the 1870s a new channel for the importation of continental reforms had opened as American students began to attend German universities in growing numbers. Upon their return, these students perceived "an acute sense of a missing 'social' strand in American politics," historian Daniel Rodgers has argued. (15) Subsequent years saw an influx of imported administrative reform proposals and legislative blueprints into the United States, e.g., workingmen's insurance, urban planning, and cooperative farming. (16) Across these and other reform projects, the driving engine was ideological change brought about through unprecedented exposure to European political sentiments. And, as was the case throughout the 19th century, the agents who carried these continental-inspired reforms confronted a countervailing array of "pitchmen for made-in-America-only ideas and politics." (17)
Efforts to stem the various waves of continental influence throughout the 19th century drew on the same central argument: the putative absolutist propensity of continental states. Within this line of argument, the common law was made a cornerstone of Anglo-American liberty; the civil law was the threatening antithesis. Throughout the 19th century, leading jurists repeatedly glorified the common law through direct contrast with the civil law. James Kent did so in 1811 in a leading opinion that invoked the common law's difference from the civil law as justification for the protection of vested rights, (18) and he returned to the theme in his Commentaries (published between 1826-1830). (19) In his 1853 treatise On Civil Liberty and Self-Government in the United States, Francis Lieber contrasted the benefits of what he termed "Anglican liberty," a system of government founded in common law, with the type of "Gallican liberty" for which leaders of the 1848 revolutions rallied. (20) Throughout much of the 19th century, opponents countered codification initiatives with warnings about the absolutist tendencies of the civil law. This clash came to a head during the 1880s with the fight over the passage of a proposed Civil Code in New York. James C. Carter's 1884 anti-codification pamphlet, quoted above, epitomized a prevalent view among American lawyers of the time regarding the existence of fundamental and irreconcilable political incompatibilities between the civil law and common law traditions. This same argument--amplified into a constitutional claim--was at the heart of the era's police-power debates.
Among the transplanted legislative reforms of the time, the work-hour restrictions at issue in Lochner were particularly controversial. (21) Continental Europe was not directly mentioned in the case, and perhaps for this reason, the vast scholarship on Lochner's meaning and origin has not drawn a connection between the decision and the longstanding debate on the civil law's constitutional status in America. Significantly, however, the civil law's compatibility with due process figured prominently in three key opinions leading up to Lochner. The first was Hurtado v. California (1884), a criminal procedure case which included an emphatic statement upholding the legitimacy of following civil law institutions, as quoted above. The second was Holden v. Hardy (1898), which validated work-hour limits in smelters and mines, and reproduced Hurtado's statement on the civil law in support of its own position. (22) And the third was the New York Court of Appeals decision in People v. Lochner, (23) which again incorporated a substantial segment of the same passage. Across these three opinions, the justices who wrote for the majority took pains to emphasize that the American constitution was compatible with both civil-law and common-law-based regulatory institutions. Justice Rufus Peckham, who wrote for the majority in Lochner, rejected that premise, albeit implicitly. His opinion avoided direct reference to the civil law (for reasons that will be discussed below). However, an encoded reference to continental governance can be found in his warning that a police power whose implementation was devoid of judicial oversight would "become another and delusive name for the supreme sovereignty of the state." (24) The statement seems geared at marking a clear distinction between police regulation in its continental incarnation, and within the boundaries of a common law regime. Importantly, in Justice Peckham's formulation, the core distinction between the two was not in the permitted scope of regulatory action. Instead it pertained, first and foremost, to the role of courts in ensuring that "health and safety" were the true rationale for regulation, rather than a "mere pretext." (25)
The predominant reading of Lochner has long construed the case as marking the ascendance of substantive common-law-based constitutional limitations on the ends towards which the state may intervene in the market. "Substantive due process" became the catch phrase for the doctrinal maneuver that the Lochner Court was thought to have implemented under this interpretation. Implicit in this term was the suggestion that in Lochner, the Court construed the words "due process" in the 14th Amendment to be synonymous with a list of substantive common law limitations. Yet in choosing to defend the work-hour limit as a health law--a common-law-compatible rationale--the state of New York made the existence of substantive limitations tangential to the case. The Court invalidated the law because, in its judgment, there was "no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker." (26) The state was entitled to impose "reasonable conditions" on property, liberty, and by extension freedom of contract, under the 14th Amendment. But what was, and was not reasonable, was--the Court ruled in Lochner--for the justices to decide. (27)
In this way, there were two distinct prongs--substantive and procedural--within Lochner-era jurisprudence on the police power. Substantively, the question pertained to whether the state might regulate in the interests of social goals beyond the protection of life, liberty and property as defined by common law. The procedural issue was separate, though related. It pertained to the identity of the institution entrusted with evaluating the fit between an alleged regulatory end and a particular intervention. One view assigned this role to legislative and administrative bodies; the other to courts. Lochner marked the ascendance of the view that it was up to judges to decide on the reasonableness of regulatory interventions. In other words, it took a direct position only on the procedural prong of due process. Lochner scholarship has generally devoted little attention to the decision's procedural prong. Rather, it has organized its inquiry around the substantive question: What constitutional principle, if any, restricted the scope of the police power to the protection of common law rights? (28) By contrast, this article aims to show that the scope of judicial oversight over regulatory decision-making was itself the central principle at issue in Lochner-era police-power debates. The article further argues that the existence of this authority was understood to be the core distinction separating the civil law and common law regulatory paradigms.
In insisting that it, rather than the New York legislature, had final authority to rule on the reasonableness of regulation, the Lochner Court invoked a deeply entrenched principle in the history of common law constitutionalism. Its origins, as discussed in more detail below, date to England of the late 14th and early 15th century. (29) The catalyst that sparked this line of constitutional argument was the rise of absolutist government on the continent, and the efforts of English monarchs to institute similar regimes at home. Common law theory distinguished the rights of Englishmen from those of Frenchmen and later Germans, positing a powerful counterclaim to those in England who sought to emulate the centralizing and interventionist regulatory models that were gaining ground on the continent. In contrast with civil law, the common law was said to give courts authority to rule on the reasonableness of state interference with protected rights. In this manner, it barred the exercise of an absolute royal prerogative of the type continental monarchs could claim.
Considered against this backdrop, Lochner stands less as a watershed than as signpost in a centuries-long journey in which advocates of continental-styled administration encountered defenders of the common law state. This same battle would reach another high point during the 1930s when prominent leaders of the American Bar Association (ABA) denounced New Deal agencies as akin to Soviet-style "administrative absolutism." (30) In this the ABA continued within a longstanding tradition of common law advocacy predating Sir Edward Coke's conflicts with James I and a royalist cadre of civil lawyers. (31) Across these and many other examples in England and the U.S., efforts at transplanting regulatory and political institutions from the continent triggered controversy over alternative legal paradigms and models of administrative governance. Importantly, members of the legal profession occupied leading positions on both sides of this divide. (32)
The tension between civil and common law models of administration received scant attention within post-New-Deal legal and constitutional history. Instead, the constructed dichotomy between "laissez faire" and "the welfare state" came to replace the common law/civil law axis. In the process, a crucial dimension of 19th-century regulatory history has receded from view. Reconstruction of this partially lost narrative is a legal historical imperative. But the motivations impelling this inquiry are not purely historical. Globalization has intensified and accelerated processes of transnational legal borrowing across both sides of the Atlantic. Consequently, contrasts and similarities between American and European regulatory philosophies and practices (and the degree of legal convergence taking place across both sides of the Atlantic) are currently a topic of significant academic discussion. (33) In constitutional law, strong differences of opinion surround the Supreme Court's increased propensity to cite the decisions of foreign (often European) courts. (34) In these and other areas, the historical conflict between civil and common law paradigms is vital to an understanding of current debates regarding the transplantation of law and policy.
The remainder of the article proceeds as follows. Part II follows the emergence of the concept of common law supremacy in early modern England, in response to the Crown's reliance on civil-law-inspired adjudicatory bodies. Within this context, the distinction between natural and artificial (legally-trained) reason came to justify the subordination of governmental decisionmaking to common law. The writings of Roscoe Pound and Edward Corwin during the 1920s attest to the salience, and contested meaning, of this historical chapter within early 20th-century debates on the role of courts in the administrative state. Part III considers the economic and political background against which the idea first took hold that Englishmen were entitled by right to common law adjudication. The rise of mercantilist states was central to this development, as Fortescue's 15th-century writings make evident. Common law limitations on the scope of prerogative authority served in this connection to stem the incursion of economic and social regulation along the absolutist French model. Coke, building on the Foretescue, would lend his authority to the claim that the king may use the prerogative only to prevent dangers, and not to change the law. This argument would serve in time to buttress the existence of nuisance limitations on the scope of the police power. The clash between "police" and common-law-based models of public health regulation in 18th and early 19th centuries England is the topic of Part IV. In this context this section examines the deployment of common-law-based models of administrative governance by opponents of Edwin Chadwick's Public Health Act of 1848. The central charge leveled at Chadwick's program was that it emulated continental models of "medical police" by shifting regulatory authority from judges to boards of health, violating in the process the nuisance-based regulatory principles of common law. The 1848 revolutions lent added force to the view that the common law could deflect radicalizing continental influences. Part V points to the presence of a similar line of argument in the United States during the 1850s through analysis of Francis Lieber's distinction between Anglican and Gallican liberty. With the passage of the 14th Amendment, the choice between continental and common law models of administration acquired new constitutional meaning, as Part VI describes. This part of the article contrasts the Court's treatment of the relationship between due process and common law in the Slaughterhouse Cases, Munn v. Illinois, Hurtado, and Holden with its decision in Lochner. The discussion highlights the intersection during that era between fear of radical continental influences, opposition to codification, and insistence upon judicial control over health and safety regulation. Finally, Part VII revisits the current debate on Lochner's origins and legacy, in light of the above argument.
II. "BOARDS AND COMMISSIONS," CONCILIAR COURTS, AND THE SUPREMACY OF COMMON LAW
Roscoe Pound began The Spirit of the Common Law (1921) with an ode to the common law's historical resilience throughout repeated crises "in which it seemed that an alien system might supersede it." (35) The external threat varied across the centuries and included the Catholic Church, the Tudor and Stewart rulers of England, and the French sympathizers within the early American republic. But the "alien system" in question was always rooted in the Roman or Civil Law tradition of continental Europe. The early 20th century marked, for Pound, another moment of crisis within this historical chain. The threat this time seemed especially ominous.
Writing against the backdrop of unprecedented growth in federal and state administrative power during the World War I years, (36) Pound argued that
the tendency to commit everything to boards and commissions which proceed extrajudicially and are expected to be law unto themselves, the breakdown of our polity of individual initiative in the enforcement of law and substitution of administrative inspection and supervision, and the failure of the popular feeling for justice at all events which the common law postulates appear to threaten a complete change in our attitude toward legal problems. (37)
Importantly, Pound placed part of the blame for the growing appeal of this form of bureaucratic management on the corruption of historical common law principles during the late 19th century. Extreme individualism, an inflexible aversion to legislation, and a general failure to adapt to the demands of industrial society--positions "out of line with [true] common law" (38)--had all strengthened the hand of advocates of administrative autonomy from judicial controls. With the hope of spurring internal reform, Pound sought in The Spirit of the Common Law to show where and why late 19th-century doctrine deviated from authentic common law principles. He identified three such principles, or institutions: judicial precedent, trial by jury, and "the doctrine of the supremacy of law." (39) The latter he defined as "a doctrine that the sovereign and all the agencies thereof are bound to act upon principles, not according to arbitrary will[;] are obliged to conform to reason, Instead of being free to follow caprice." (40)
For Pound, an encounter in 1608 between James I and Sir Edward Coke marked the moment in which the supremacy of law crystallized as a paramount common law principle. At the heart of that encounter, as Pound explained, was the king's authority to take cases away from the courts so that he could rule on them himself. James claimed such an authority by saying "I thought law was founded upon reason, and I and others have reason as well as the judges." To which Coke responded that "causes which concern the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of the law, which law is an art which required long study and experience before that a man can attain to the cognizance of it." (41) When James objected that it would be treason to suggest that he was subordinate to the law, Coke offered in final retort that "the king ought not to be under any man but under God and the law." (42)
Pound had two purposes in retelling this story. The first was to place the principle of legal supremacy at the very core of common law history and to argue that this principle did not lose its potency with the shift from monarchy to democracy* At the same time, Pound was intent on showing that judicial obstruction of social legislation was neither required by, nor consistent with, …