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Harvard Law Review Forum

In Search of “Laissez-Faire Constitutionalism”

Responding to Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061 (2010)

In his article Economic Crisis and the Rise of Judicial Elections and Judicial Review, Professor Jed Shugerman put forth the argument that the widespread adoption of judicial elections in the 1850’s helped cause a shift towards laissez-faire constitutionalism. In this response, Professor Matthew J. Lindsay argues that Professor Shugerman overstates the doctrinal continuities between the mid-nineteenth-century “vested rights” decisions delivered by the first generation of elected judges, and the iconic, if unrepresentative, “laissez-faire constitutionalism” of the late nineteenth and early twentieth centuries. Professor Lindsay maintains that by overemphasizing the Jacksonian foundations of Lochner-era police powers jurisprudence, Professor Shugerman obscures its more immediate legal and ideological origins, including slave emancipation, the industrialization of labor, and the transformative constitutional changes set in motion by the Reconstruction Amendments.