Until the 1970s, scholars routinely asserted that courts in the late nineteenth century initiated a radical reinterpretation of due process of law in their attempt to stem an onrushing tide of legislation designed to regulate business activity. This protection-of-business theory of due process development originated with the efforts of socialist and progressive commentators of the early twentieth century to discredit what they saw as a “revolutionary” transformation of due process from a term of “nominal significance in American constitutional law” into a bulwark of property. Progressive intellectuals assailed the judiciary in similar terms. Yale University president Arthur T. Hadley, an expert in railroad law and economics, declared that judicial construction of the Fourteenth Amendment had given corporations “large powers and privileges” and placed them beyond popular control. The protection-of-business thesis enjoyed a long reign, although the rather crude class-conflict interpretation of some of the early critics gave way to more subtle analyses. Since the late 1960s, historians have challenged the protection-of-business theory. By the 1990s, the revisionist interpretation had become so common, complained one skeptical scholar, that it had replaced the traditional view. A single study of this sort has its own problem of selectivity, of course, and therefore must be suggestive rather than conclusive. However, Maine is an appropriate jurisdiction with which to start. Maine's major metropolis was Portland, which in the middle of the century aspired to rival Boston as a commercial center. Although the grandiose dreams of John A. Poor and other boosters never came to fruition, Portland did become a major regional trading center after the completion, with the aid of municipal credit, of the Grand Trunk railway system in the 1850s. In the 1890s Portland also became the hub of a booming tourist business. The hotel, convention, and retail trades flourished with the influx of summer visitors. At the same time, Portland superseded Lewiston as Maine's chief manufacturing city; industrial expositions and other forms of promotion helped continue a modest growth in light industry into the twentieth century. Maine's state and local governments reflected national trends in the ups and downs of business promotion, especially in the subsidization of railroads after the Civil War. Between 1830 and 1889, the state legislature enacted seventy-seven special laws authorizing local governmental aid to railroads; forty-three were passed in the years 1866-1873. Challenges to governmental attempts to foster industry after the Civil War led the Maine court to issue several classic laissez-faire opinions, and during the Progressive era, the court had to deal with labor and environmental laws and the regulation of utility rates. Maine is therefore constitutionally, territorially, demographically, and economically an excellent subject for a case study of substantive judicial review.
David M. Gold,
The Tradition of Sustantive Judicial Review: A Case Study of Continuity in Constitutional Jurisprudence,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol52/iss2/5