The Era of Economic Due Process—Social Darwinism (Property, Monopoly, Corporatism)

The Era of Economic Due Process set the legal agenda in America during the closing decades of the nineteenth and early twentieth century. A society undergoing transition and transformation from an agricultural society to an industrial society needed to have the right legal, political, and economic conditions before it could be birthed. It needed to have the underbrush cleared from previous generations of agricultural work if it was going to be properly birthed. The Fuller Supreme Court (1880–1910) set the agenda for American economic policy, not We the People. It did this using its power of judicial review to interpret the Civil War Amendment, the 14th Amendment in particular, from a procedural due process reading to a substantive due process reading, in its effort to undercut legislative efforts that were redistributive. That is, the Fuller Court’s reading of the 14th Amendment entailed a curtailed and less than robust response to the displacement of agricultural workers by the process and forces of industrialization. That is, property protection over democratic rule. Legislative action fell dead at the hands of the Supreme Court, especially if it was geared to helping the struggling workers. Social Darwinism and a “thin” state fit well together in modern America. That is, the fittest survived the jungle, the weak were sacrificed on the altar of property rights. The embedding of the protection of property in a Bill of Rights made property sacrosanct to any invasion by the “unwashed” masses that were turned out of the farm system and let loose in the industrial jungles of America. Also, legal doctrines of freedom of contract and the economic doctrine of laissez-faire killed any efforts by the workers to survive the industrial jungles. Any antitrust policy efforts to break up corporations and monopoly power were not welcomed in America. Excuses were found for the existence of giantism of corporations and why small businesses, small farms, and other trade skills were anachronisms. They needed to be sacrificed in the name of efficiency and productivity. The Lockean liberalism and individualism model embraced by the Founders of the American system provides for liberty and property over fairness and justice. This left the workers free to starve in America’s jungles. After the Second World War many European countries adopted the power of judicial review for their systems, and later as other colonies freed themselves from the old colonial powers also started adding similar protection found under American constitutionalism by way of Bills of Rights imitating the American model, and finally with the collapse of the Soviet Union, Eastern European countries started to feast on this American model of constitutionalism—one big blooming fest of Bills of Rights to protect “human rights” and “civil rights.” We simply caution that the “color” of law may hide more than it reveals especially for comparativists dissecting and comparing the various constitutions of other nations.