Here’s what we’re reading today.
SCOTUSblog has posted a summary of a recent lecture by Professor James Ely (recently also returned from the Brigham-Kanner Property Rights Conference in the Hague) at the Supreme Court Historical Society, about whether “the Progressive-Era court largely accommodated social and political reforms, diminished protections previously afforded to property owners and opened the door for later New Deal jurisprudence.” His conclusion is yes.
Professor Ely’s talks are always worthy, and the SCOTUSblog summary is a pretty good substitute since we don’t have the full lecture. A sampling:
According to Ely, progressives advocated a strong police power that would enable states to promote public welfare even at the expense of certain liberties – in Ely’s description, making the public welfare into a “talisman” that could override provisions in the Constitution. As former Attorney General George Wickersham said in 1914, the “pressure was great to compel legislation that transcends provisions of the Constitution,” and “any limitation by the courts was received by impatience and attacks on the judges.” However, as the cases Ely cited demonstrate, the court was in fact broadly receptive to reforms and allowed progressives to “devour” the constitutional protections of property and contract. In times of declared “emergency,” the police power was nearly boundless. Repeating what legal scholar Charles Warren observed in 1913, Ely contended that the “supposed tendency” of a reactionary court to rule against economic and social legislation was “exaggerated.”
We suggest you digest the entire summary.