Constitutional Ideology and Progressive Fiction

In the early-20th century an information explosion in American law coincided with the rise of revolutionary new technologies for the shaping of public opinion. Mechanical improvements reduced the cost of publishing magazines and newspapers, and encouraged the creation of mass audiences undreamed of in earlier generations. Comic strips and movies brought enhanced social awareness to millions of semiliterates, especially those recently arrived immigrants who crowded into the nation's ghettos. A new generation of writers, often young and college educated, rebelled against the romanticism and prudery of 19th-century literary conventions, and called for an American literature more responsive to the problems of a modern industrial society. Through factual articles and problem-centered fiction, these writers--derisively termed "muckrakers" by their critics--sought to document the wasteful and inhumane practices of a mature capitalist order. At the height of their popularity from 1902 to 1914, they contributed significantly to a middle-class ethos that favored political and economic reform.(1) One of the major obstacles to such reform lay in the conservative constitutional jurisprudence of the late-19th century. In an effort to make American law more "scientific" and predictable, jurists after the Civil War sought to create a system of authoritative legal rules that might be applied to recurring fact situations in a mechanical fashion. Fearful of class warfare and the possible redistribution of wealth through legislative action, courts developed new doctrines, such as "liberty of contract," to protect the property rights of individuals and corporations. At the same time, advocates of mainstream jurisprudence professed to draw a sharp line between law and politics. Judges were learned technicians, not policy makers, they argued; and the law was a closed system of logical principles that had to be obeyed, regardless of the consequences for society.(2) By the turn of the century many courts, especially at the state level, had begun to turn away from this laissez-faire jurisprudence, and to consider social facts when assessing the constitutionality of proposed economic regulations. Roscoe Pound, a young law professor, provided an intellectual rationale for this trend in an influential article that appeared in The Green Bag, a popular legal journal, in 1907. Deploring the public's perceived gap between "legal justice" and "social justice," Pound warned that the law must confront the urgent problems of modern industrialism by utilizing the hard data supplied by the social sciences "The modern teacher of law should be a student of sociology, economics, and politics as well," he urged. He should know not only what the courts decide and the principles by which they decide, but quite as much the circumstances and conditions, social and economic, to which these principles are to be applied; he should know the state of popular thought and feeling which makes the environment in which the principles must operate in practice. Legal monks who pass their lives in an atmosphere of pure law, from which every worldly and human element is excluded, cannot shape practical principles to be applied to a restless world of flesh and blood.(611-12) In practical terms, Pound's call for a "sociological jurisprudence" found an answer in the famous Brandeis brief of 1908. Louis D. Brandeis, a reform-minded Boston attorney, introduced the brief in Muller v. Oregon to persuade the United States Supreme Court that Oregon might constitutionally regulate the working hours of laundresses within the state. Devoting only two pages to legal precedents, Brandeis relied instead upon more than 100 pages of statistics and other factual data drawn from a mass of medical reports, psychological treatises, reports of factory inspectors, and published assessments of the effects of comparable legislation in the United States and abroad. Such extralegal sources of information, he argued, demonstrated that the Oregon lawmakers had acted reasonably in legislating to protect the health of their women workers. …