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Vanderbilt Law Review

First Page

373

Abstract

Everyone has his own, personal view about what role the United States Supreme Court should play in American political life. Conservatives of the Robert Bork variety prefer that supreme court justices treat congressional enactments with great deference and respect.' Liberals of the Laurence Tribe persuasion like judges to take an active role in ensuring certain individual rights, such as the right to abortion, while giving Congress latitude to regulate in the sphere of economic rights. Libertarians of the Bernard Siegan orientation strenuously deny the difference between economic liberties and other sorts of human rights and would have judges actively protect both sets of rights.

While it is easy to develop a theory of judicial review and constitutional interpretation-every first year law student does it-it is considerably more difficult to put such a system into operation. Thus, while pundits have much to say about what the Supreme Court should be doing, their ideas are of utterly no use to economists, political theorists, or other social scientists because they provide no guidance about how to structure a constitutional system that would give judges sufficient incentives to assume the role that the commentators think they should. In other words, it is one thing to say that supreme court justices should behave in a certain way, or adopt a particular constitutional perspective. It is something else entirely to figure out how to make them behave in this way.

One of the reasons that James W. Ely's recent book, The Chief Justiceship of Melville W. Fuller, 1888-1910, is an important contribution to political theory, as well as to the history of the Supreme Court, is that it provides an important lens through which to view the Court at a time when it played a much different role in American life than it does today. In particular, the Fuller Court played active roles in protecting property rights and in fostering commerce, while the modern Court has largely abdicated its historical obligations in these regards. It is important to ponder what motivated the Fuller Court because its jurisprudence raises issues that have special relevance today.

Limited government, respect for private property, and state autonomy are all values that are gradually coming back into favor in American public opinion, as the new Republican congressional leader- ship tries to deal with the wreckage of the welfare state. These were precisely the values that guided Chief Justice Melville W. Fuller when he led the United States Supreme Court during the twenty-two year period from 1888-1910. For this reason, and because the book is a well-researched, interestingly written account of a chief justice about whom not enough is known, the historical lessons of Ely's work are well worth pondering.

This Book Review begins with a discussion of the modern theory of public choice and explains why the constitutional values ex- pressed by the Fuller Court are worth studying from the perspective of this political theory. In short, public choice theory, which focuses on the dominant role of interest groups in the legislative process, provides a useful lens through which to view the Fuller Court because the Fuller Court's decisions in the areas of property rights and economic rights demonstrate that it recognized the negative effects associated with coercive wealth transfers by interest groups. Curiously, the Fuller Court's decisions in non-economic areas such as civil rights indicate that it did not understand the nature of interest groups outside the economic sphere. Following this discussion, the Book Review goes on to consider the lessons to be learned from the Fuller Court.

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