Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court

Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court

Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court

Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court

Excerpt

The object of this book," in the words of its author, "is to analyze the vital function of the bar as liaison between businessmen and judges, and to show how protests against government interference with private enterprise were translated into formal constitutional limitations." The careful reader will readily concede that this twofold object has been accomplished. The result is a work which is significant on at least three counts. The story it tells is an important chapter in the history of the coming to maturity of American capitalism in the sixty years which stretch, say, from 1875 to 1935. It is also an important, a highly importaut, chapter in the history during the same period of those twin institutions, Judicial Review and its product, Constitutional Law. Lastly, the present volume illustrates on the grand scale of Constitutional Law the respective roles of bench and bar in the creation of "judge-made law."

Dr. Twiss refers at one point to the "stork theory" of constitutional decisions. That this theory is, however, much older than American Constitutional Law, appears from a passage in the Iliad upon which Sir Henry Maine comments in his Ancient Law as follows: "When a king decided a dispute by a sentence, the judgment was assumed to be the result of divine inspiration. The divine agent, suggesting judicial awards to kings, was Themis. . . . Themistes . . . are the awards themselves, divinely dictated to the judge." In Dr. Twiss's volume Themis is invested with a considerable variety of material embodiment, appearing in the substantial physical contours of Thomas H. Cooley, John Archibald Campbell, William Maxwell Evarts, Joseph Hodges Choate, John G. Johnson, James Coolidge Carter, John Forrest Dillon, William D. Guthrie, and a number of . . .

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