by Paul Kens. Columbia, SC: University of South Carolina Press, 2010. 272 pp. Cloth. $49.95. ISBN: 9781570039188.

Reviewed by Ken I. Kersch, Director, Clough Center for the Study of Constitutional Democracy, Associate Professor of Political Science, History, and Law, Boston College. Email: kersch[at]


Given the relative obscurity of the man serving as this book’s organizing subject, and the ostensible dullness (and brevity) of the period it covers (the presidencies of Ulysses S. Grant, Rutherford B. Hayes, James A. Garfield, Chester A. Arthur, and Grover Cleveland), many will doubtless – and mistakenly – pass over this entry in the University of South Carolina Press’s series surveying the Supreme Court’s chief justiceships. While period experts probably won’t learn a lot, the value-added to others from reading this book could be quite high. Moreover, in reviewing the trajectory of constitutional development in the period, even experts might be spurred by Kens’s account to appreciate in new ways the Waite Court’s perhaps surprising contemporary relevance.

Waite Court (1874-1888) themes included the relation between the national government and the states, the constitutional powers of governments to regulate the economy, and the powers of the community vis-à-vis big business. Significantly, the Court considered these issues not under the conditions of a now vanished “proprietary-competitive,” agrarian order, but at the very moment when our complex, interconnected, corporate-capitalist political economy was struggling to be born (see Sklar 1986). As such, the Waite Court was the first to grapple seriously with the application of the traditional system of government – and the Founders' Constitution – to the political economy of modern America.

Kens is ambivalent about applying the label “transitional” to the Waite Court – though he recognizes its purchase given the Court’s responsibility for wrestling with the legacy of Civil War, the revolution in commerce, and the winning of the west. “Transitional” might imply ambivalence. But Kens’s thesis is that Waite (and the Court’s other justices) had clear views on the constitutional questions of the day, which were squarely joined on the Court. He shows that Waite’s views largely prevailed, albeit, as time went on, by increasingly precarious margins.

In assuming the Chief’s chair (after an almost comic cascade of spectacularly failed earlier attempts by President Grant to appoint others), Waite, a successful, if little-known, Toledo attorney and state Republican Party “mainstay,” “seemed to be walking into a hornet’s nest occupied by men of big egos debating even bigger issues” – including Samuel Miller, Stephen J. Field, Joseph P. Bradley, and John Marshall Harlan (pp.17, 31). These men, who initially doubted Waite’s intellect and abilities, ultimately came to appreciate him, not [*192] only as “a congenial, honest, and fair man who successfully managed the business of the Court and the often difficult relations among its members,” but also as capable constitutional thinker who held, and advanced, significant views of his own (p.31).

From its inception in the term after the SLAUGHTERHOUSE CASES (1873), the Waite Court was buffeted by a barrage of novel policy initiatives and constitutional theories. At the center of this onslaught was a single momentous question: had the Civil War, and the constitutional amendments adopted in its wake, inaugurated a fundamentally new relationship between the national government and the states? Waite, and the increasingly slim majority he assembled, were traditionalists who answered “no.” “[W]eaned on a tradition of federalism that emphasized state authority and a limited role of the federal government in everyday life …. [t]hey saw a strong federal government as the main threat to individual liberty and envisioned the states as the protectors of the rights of citizens” (p.7). The Waite Court wielded formalist, strict-constructionist interpretive methods to domesticate innovation in ways that integrated them as seamlessly as possible into traditional antebellum understandings.

Its infamous civil rights rulings are illustrative. Challenging familiar portrayals of the Waite Court as a racist bench cruelly abandoning the freedmen, Kens argues that “the Court did not betray Reconstruction so much as it struggled with it” (p.6). This was “not a matter of hate, strategy, or following raw public opinion. It was a matter of sentiment – the subtle but also deeply held attitudes, feelings, and opinions that formed the core of their thinking” (p.7) – that is, of the justices’ broader, principled understandings concerning popular sovereignty, public welfare, localism, and federalism.

The Waite Court’s first take on the scope of congressional power under the new amendments was in the Enforcement Act (1870) cases of UNITED STATES v. CRUIKSHANK (1876) and UNITED STATES v. REESE (1876), where the Court, respectively, voided federal criminal prosecutions in cases involving egregious mob violence against blacks, and discrimination in the exercise of voting rights in opinions typifying the extreme formalism and narrowness of the Court’s readings of federal powers to enforce civil rights under the new amendments. Kens argues that the motivation in these decisions was not racism, but a reflexive adherence to “the antebellum concept of federalism” (p.43) – although he does not emphasize enough, perhaps, the indifference to racism that made these more formalist preoccupations possible. “For many Republicans and Northerners,” – with the notable exceptions of Radical Republicans – Kens writes, “this ideal of preserving the Union meant maintaining the relationship between the states and the nation as close as possible to what it was before the war,” thereby preventing the establishment of a truly revolutionary order by which the federal government would end up the source of all municipal law (p.43).

Questions involving the future of traditional federalism were raised by the era’s economic transformations as well. Before the Civil War, business was typically regulated by states and [*193] localities, pursuant to their police powers. The transformation of local and regional economies into a national market – increasingly under the control of large, distant corporations (railroads, banks, and (often unstable, and highly speculative) markets and exchanges) made it apparent to many that they were rapidly losing control of their economic destinies. The Granger Movement – comprised of farmers but, in its regulatory objectives, supported as well by businesses in small towns and cities – fought to reclaim some control in this radically altered context, by (amongst other things) passing railroad rate regulation. The Grangers anchored their claims in (traditionalist) understandings of individual liberty, and “popular sovereignty,” holding that the power to regulate corporations followed ineluctably from their status as legal creations of the people themselves. States, however, now faced an increasing number of constitutional challenges alleging that their regulations (or tax, or immigration control laws) interfered with interstate commerce. Here, though – with the Chicago grain elevator regulation case, MUNN v. ILLINOIS (1877), being the locus classicus – the Waite Court’s traditionalist federalism, and its resistance to the national enforcement of rights, manifested itself as support for the power of states to regulate business in the public interest.

The railroads (and other industries) resisted these new efforts at regulation by either ignoring the regulations (forcing others to sue for enforcement), or challenging their constitutionality in court. They frequently claimed contracts clause violations (Art. I, Sec. 10), arguing that the freedom to fix charges was an implied part of their corporate charter (understood as a contract), and that denying this freedom defeated the charter’s essential object. Justice Field argued that state rate regulations were akin to confiscation (what we today call a “regulatory taking” – a doctrine Field advanced in other contexts as well). Others called it “communism”(p.75). Reformers argued simply that, under traditional principles of popular sovereignty, states could not bargain away their police powers, which were inalienable concomitants of self-government. Far from being reflexively, or “attitudinally,” pro-state, and anti-railroad, however, Kens shows that, in eminent domain and municipal bond issue cases, the formalist Waite Court tended to side with the railroads, holding the localities (facing economic hardship, particularly in the wake of the Depression of 1873) strictly to their agreements on traditionalist, sanctity of contract grounds (see FLETCHER v. PECK (1810)).

Kens devotes a chapter to the SINKING FUND CASES (1879) which raised critical questions concerning the nature, status, and power of business corporations. These cases involved constitutional challenges to a federal statute passed in the wake of the Crédit Mobilier scandal placing money the federal government owed the railroads into a public trust to be dispensed for services provided to the government (like carrying mail or troops). The railroads insisted that this arrangement violated their rights under the contract, due process, and takings clauses (Art. I, Sec. 10; Amendment V). Advancing a Thayer-ite argument that legislation should be overruled only when there is a clear constitutional violation, the Court, [*194] in an opinion by Waite, upheld the arrangement (Thayer 1893). Once again, however, Waite locked horns with an angry Justice Field (joined here by Justices Strong and Bradley), who read his dissent orally, and argued – creatively – that corporations have rights akin to those of human persons. “He must be dull indeed,” Field intoned, “who does not see that under the legislation and the course of decision of late years, our government is fast drifting from its ancient moorings, from the system established by our fathers into a vast centralized and consolidated government” (pp.108-109).

Field became increasingly aggressive in trying to insinuate his corporate personhood theory into constitutional doctrine. He had greater freedom to do so while riding circuit, as is clear from his appellate opinions in SAN MATEO v. SOUTHERN PACIFIC RAILROAD (1882) and SANTA CLARA COUNTY v. SOUTHERN PACIFIC RAILROAD (1883). The latter was ultimately heard by the Supreme Court, which affirmed the result below, without addressing the sweeping theories Field had advanced below. Through an oddity arising out of an exchange of memos between Waite and the court reporter, however, the theory of corporate personhood was written into the reporter’s preface to the final Supreme Court opinion – which was published as a bald assertion, with no status as law, as the subsequent lively debates on the Court on this point showed. Nevertheless, Kens explains that “Waite’s offhand remark has mutated or been molded into a key moment in the establishment of a doctrine of corporate personhood that guarantees to corporations virtually all of the rights the Constitution guarantees to persons made of flesh and blood” (p.124). A key instrument of this mutation was the iron-willed and indefatigable Justice Field himself, who cited SANTA CLARA incessantly as having adopted his pet assertion as law (Field is the true progenitor of the Supreme Court’s recent decision in CITIZENS UNITED v. FEDERAL ELECTIONS COMMISSION (2010), which was anchored in a theory of corporate personhood).

The Waite Court’s decisions in MUNN and the SINKING FUND CASES were immediately targeted by the era’s corporate/libertarian right. James A. Garfield, for example, was warned by one of his closest advisors to condemn these decisions, and endorse Justice Field’s dissents if he had any desire to garner the business support necessary to win the White House. The issue subsequently spilled over into Garfield’s nomination of Ohio Senator Stanley Matthews to the High Court. Matthews, who had close ties to Jay Gould and the railroads, was passionately opposed by an array of groups, including the National Grange and National Anti-Monopoly League – the first time organized interests became directly involved in Supreme Court confirmation fight.

As new justices arrived in the mid-to-late 1880s, the Court was increasingly inundated with lawsuits seeking to insulate businesses from taxation and regulation. The determined Field was hell-bent on overturning MUNN and the SINKING FUND CASES, and adopted as his own the theories of entrepreneurial liberty being aggressively advanced by the era’s elite business bar (including arguments from natural law). Field [*195] argued, moreover, that since regulation implicated fundamental constitutional and natural rights of corporate “persons” – including the effective confiscation of their property – efforts by legislatures to regulate business were entitled to little or no deference by courts.

As the economy became increasingly integrated, the state-level regulation the Waite Court had approved (against Justice Field’s implacable opposition), proved increasingly feckless – and constitutionally problematic. With support from a variety of interests – including businesses, and even the railroads themselves (with efforts undertaken well in advance of the Supreme Court’s decision in WABASH, ST. LOUIS, AND PACIFIC RAILROAD CO. v. ILLINOIS (1886), which sweepingly invalidated state efforts to regulate railroads on commerce clause grounds) – Congress eventually passed the Interstate Commerce Act (1887) – the pioneering statute of the modern (national) regulatory state. Most of the attendant debate about this new departure, Kens reports, concerned not whether regulation was appropriate, but rather its most effective form.

The Waite Court was also heavily involved in resolving legal disputes occasioned by the nation’s rapid expansion westward, including dueling claims to land ostensibly conveyed by rival, incompatible grants from Mexico and Congress (many of the latter to railroads). Evincing its characteristic tendency, the Waite Court read the terms of these grants strictly – which, in context, helped fuel commercial development. The Court was also frequently called upon to resolve disputes arising out of treaties between Indians and the U.S. government. The expansion westward raised a distinctive set of civil rights claims as well. Because they were understood to be white, discrimination against Mexicans was assumed to be informal and based on culture, not race. Discrimination, and violence, against the Chinese was aggressively countered in the federal courts by both Chinese business leaders and the Chinese government (who, interestingly, frequently appealed to treaties between the U.S. and China). In the famous Waite Court polygamy decision REYNOLDS v. UNITED STATES (1879), Mormons appealed (unsuccessfully) to principles of local autonomy, and insisted that centralized power was an affront to popular sovereignty – even absent formal claims regarding state police powers (which were inapplicable to the Utah territory).

This book is largely an overview and synthesis, but it is a good one. Although some of his chapter titles are cringe-inducing (e.g. “Waite, Waite, Don’t Tell Me”), Kens is an otherwise engaging writer who is very much at home in the period. He effectively situates the reader within the era’s complicated and sometimes alien legal categories, presented in their rich economic, political, and social contexts. His capsule profiles of the Court’s justices are nicely drawn.

The book prompts thoughts that are far from antiquarian. As debates about originalism continue, it is striking to be reminded of the degree to which there was almost instantaneous confusion, if not bitter contention, on the Waite Court about the original meaning of the Fourteenth Amendment – despite the [*196] fact that all involved clearly recalled the adoption of those amendments, and its context, which had occurred less than a decade earlier. As Kens emphasizes, the antagonism between Justices Waite and Field became a cynosure for this contention (this book has convinced me that, in overlooking the Waite-Field antagonism in his otherwise wonderful book, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (2007), Jeffrey Rosen missed the boat regarding one opposition that plainly continues to define America today).

Kens’s clear thesis here is that Waite was the traditionalist (and possibly the originalist, by eighteenth century standards), and Field the innovator, rights-talker, and judicial activist. Since Field pioneered the constitutional arguments that now form the backbone of much of the contemporary (and purportedly originalist) Republican Right, his thesis may provoke some conservatives who attribute late nineteenth century libertarian innovations to the eighteenth century Founding. This does not necessarily mean that today’s “constitution-in-exile” types – Field’s progeny on questions of economic regulation – are wrong about the Constitution, however, as Kens seems to imply. After all, the original objectives of many of the Reconstruction statutes that the Waite Court cut down to size were probably a lot more radical than the Waite Court was willing to tolerate. With his (radical) conviction that rights standards are national, legislatures are to be mistrusted, and courts the most appropriate and effective champions of rights, Field could just as easily be considered, in some sense, an originalist. But, in taking these positions, he could equally be understood as a progenitor of twentieth century liberalism (although Field’s compatriot, the first Justice Harlan is a more congenial forbearer for them on questions of civil rights). For these reasons, any assessment of the traditionalist jurisprudence of Field’s antagonist, Chief Justice Waite, is, by contemporary political lights, also fraught. Kens seems to want to vindicate Waite’s traditionalism over Field’s innovation. But any defense of Waite on these grounds, as Kens recognizes, must adopt the (normative) position that, in fact, the Civil War Amendments were not intended to – and did not – effect any significant transformation of the traditional constitutional order concerning federalism and rights protection. Field’s innovations may not have been faithful to the original eighteenth century understandings, but – arguably, to be sure – they may have been faithful, in significant respects, to those amendments adopted in the aftermath of the Civil War.

In any case, those looking for a lively and sophisticated overview of the development of constitutional doctrine at a time when the Founder’s Constitution first met modern America will very much appreciate this book.


Sklar, Martin. 1986. THE CORPORATE RECONSTRUCTION OF AMERICAN CAPITALISM. Cambridge, UK: Cambridge University Press.

Thayer, James B. 1893. “The Origin and Scope of the American Doctrine of Constitutional Law,” HARVARD LAW REVIEW 7: 129.

FLETCHER v. PECK 10 U.S. 87 (1810)
MUNN v. ILLINOIS 94 U.S. 113 (1877).
REYNOLDS v. UNITED STATES 98 U.S. 145 (1879).
SINKING FUND CASES 99 U. S. 700 (1878).
UNITED STATES v. REESE 92 U.S. 214 (1876).

© Copyright 2011 by the author, Ken I. Kersch.