The idea of constitutional conservatism in the early twentieth century

Until recently, scholars typically argued that social Darwinism and laissez- faire ideology transfixed early twentieth-century American constitutionalism. These doctrines supposedly governed Supreme Court jurisprudence and justified opposition to economic regulation. This interpretation repeated the indictment of Progressive-era reformers, scholars, and judges, but it has been considerably undermined. Revisionists argue that Justices of the so-called Lochner era respected the law as a system of authority that oriented and constrained their actions and preferences. Their jurisprudence had two fundamental requirements: That legislation have a truly public purpose it could not be "class" or "special" legislation for the benefit of one group at the expense of another nor could it violate the personal or contractual rights of individuals.The revisionist interpretation holds that the Court judged in good faith based on its understanding of constitutional principle, and rejects the Progressive claim that it merely echoed Herbert Spencer to serve the wealthy. This chapter builds on Lochner revisionism by examining non-jurisprudential constitutional commentary among a small but notable group of intellectuals, officials, and scholars who responded to progressivism and socialism based on their self- understanding as constitutional conservatives. Given the aims of this volume, we shall note as well how frequently they measured the constitutional challenges of their time against those of the Civil War and Reconstruction era. That period of unparalleled tumult was a touchstone for early twentieth-century constitutional conservatives, who confronted many of the same issues and sought guidance especially in the statesmanship of Abraham Lincoln.