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Just as strict common carrier liability stood as a disquieting exception to the attempt of legal thinkers to organize an abstract and integrated system of tort law around the negligence principle, so too did the rule that masters were liable for most of the torts of their servants. By imposing "vicarious liability" on employers, the common law seemed to make them liable regardless of their own fault.
In two articles on agency published in 1891 but written eight years earlier, Holmes described the strict liability underlying the rule of respondiat superior as a "series of anomalies" that were contrary to "common sense." "I assume," he wrote, "that common-sense is opposed to making one man pay for another man's wrong, unless he actually has brought the wrong to pass. . . ." The history of the development of vicarious liability of the master could, therefore, be explained only as "the resultant of a conflict at every point between logic and good sense." "The survival from ancient times of doctrines . . . based on substantial grounds which have disappeared long since" could have occurred only because they were "generalized into a fiction" and subsequently took on a life of their own.36
Between 187o and igoo, one sees everywhere this tendency to generalize and systematize fields of law that had previously been conceived of as a series of special cases and particular rules. This reorganization of legal architecture can be understood as an effort to create a systematic and autonomous system of private law derived from concepts such as will, fault (that is, the impairment of will), and property. It strove to erect an abstract set of legal categories that would subordinate particular legal relationships to a general system of classification. As we have witnessed the disintegration of these late-nineteenth-century imperial categories during the past seventy-five years-as the law of contract, for example, has been disaggregated into specialized areas of sales, labor, consumer, and landlord-tenant law-we see once again the historically contingent character of legal architecture.
We have seen how the late-nineteenth-century process of abstraction was accompanied by a strong effort to purify legal categories through identification and isolation of various anomalies that contradicted the basic structure. One early example is the law of insurance. In 18oo, American lawyers regarded insurance law as one of the three or four most prominent sub-categories of a still loosely defined law of contract. By 1850, the law of insurance had been relegated to an independent and separate area of legal categorization. The explanation for this reclassification seems to be that as contract law was becoming increasingly generalized around the law of sales-with its developing doctrine of caveat emptor-longstanding insurance doctrines requiring the insured to "disclose fully all material risks" (caveat venditor) became ever more subversive of the general system. As it stood in the way of further generalization of the law of contract, it needed to be expelled.37
This identification of anomalies was a central part of the task of legal integration after 1870. We have seen how Holmes consistently labeled various strict liability doctrines as anomalies whose appearance in the law could be explained only by historical peculiarities. We have also seen that he sought to discredit strict master-servant and common carrier liability, both of which contradicted his project of integration. In a similar spirit, we shall soon see, William Keener published a book on Quasi-Contract in 1893 for the purpose of isolating a paternalistic, non-will-based set of doctrines from a pure and supposedly voluntaristic system of contract law. 38
The process of generalization and abstraction in late-nineteenth-century law was identified with the goal of rendering private law more scientific and less political. It also had the effect of freeing legal rules from the reality testing that regular encounters with the concrete particularities of social life might entail. For example, generalization permitted judges to apply the same set of rules that were applicable between sophisticated businessmen of relatively equal information and bargaining power to labor and consumer contracts between vastly unequal parties. Indeed, such indifference to context was regarded as an important safeguard that would ensure that law would remain neutral and non-political.
While the task of integration and abstraction was undertaken to create a powerful system of private law insulated from politics, it ultimately sowed the seeds of its own destruction. Although its very general and abstract character led eventually to the charge that it was out of touch with reality, in fact it had also already rendered itself internally vulnerable. First, the process of integration gradually eliminated a series of built-in "mediation" devices that had allowed various contradictory principles and doctrines to coexist without totally consuming each other. As we will see in a number of areas of law, systematization simply exposed contradictions that earlier compartmentalized structures had been able successfully to suppress. For example, as the concept of property was made more abstract, judges and jurists turned away from an earlier, more restricted, "physicalist" conception of property that limited "takings" to physical expropriations of land.39 As the definition of property was expanded to include not only various uses of land, but also stable market values as well as expectations of future income from property, virtually every governmental activity was rendered capable of being regarded as a taking. Earlier mediation devices for preventing such a reductio ad absurdum, to be discussed later, were swept away by this process of abstraction, thus rendering the entire system more vulnerable to attack.
What follows is an effort to capture initially the essential structure of Classical Legal Thought by focusing in some depth upon several major areas of legal doctrine that help to express its characteristic tensions and contradictions. First, we look at the well-known income tax case of 1895, Pollock v. Farmers' Loan & Trust Co.," in order to highlight perhaps the most central tenet of late-nineteenthcentury legal orthodoxy-its commitment to a neutral, non-redistributive state. Next, we turn to the famous Supreme Court decision in Lochner v. New York (1905)41 to identify the moment at which many of the suppressed contradictions within the classical ideal of a neutral state came to the surface and produced a powerful political and intellectual reaction. In particular, we study the development of limits on police power, which were used in Lochner to deny the authority of the state to regulate maximum hour laws.
As we seek to capture the texture of Classical legal consciousness by focusing on these specific areas, we also need to see the particular ways in which orthodoxy made itself more vulnerable to attack, often by eliminating earlier legal distinctions that existed precisely in order to mediate or deny some political, social, or moral contradiction.
The Structure of Legal Reasoning
The late-nineteenth-century effort to integrate legal doctrine was accompanied by an equally important attempt to create a self-contained system of legal reasoning that would be immune to the charge that it was simply political. As a first approximation, it is accurate to describe this mode of reasoning as "formalistic" or "conceptualistic." It aspired to import into the processes of legal reasoning the qualities of certainty and logical inexorability. Deduction from general principles and analogies among cases and doctrines were often undertaken with a selfconfidence that later generations, long since out of touch with the inarticulate premises of the system, could only mistakenly regard as willful and duplicitious. However difficult it is for us to recapture this aspect of the late-nineteenth-century mindset, it stood as among the most important elements that supported the conviction of legal thinkers that it was possible to distinguish the legal from the political.
Late-nineteenth-century legal formalism represented the crystallization of a "legalistic" mindset42 that had emerged in seventeenth- and eighteenth-century English constitutional thought and was further elaborated in liberal political theory and post-revolutionary American legal thought. It was marked by a series of basic dichotomies: between means and ends, procedure and substance, processes and consequences. In a world of conflicting ends, it aspired to create a system of processes and principles that could be shared even in the absence of agreed-upon ends. Law played a c
rucial role in this system of thought. If legal concepts could be neutral, they could then be used to decide disputes without resort to the substantive merits of a case. Thus, well before the late nineteenth century, the ideal of the rule of law had emerged to oppose "result-oriented" or consequentialist modes of legal thought.
Perhaps the best example of the triumph of these ideas is the position of equity in the Anglo-American system of legal ideas. During the late Middle Ages, the English chancellors had succeeded in erecting a system of equitable jurisdiction that often stood in conflict with the common law courts. While many of the disputes between "law" and "equity" dealt simply with questions of power or with technical issues of jurisdiction, one major ideological issue came to be increasingly prominent during the eighteenth century. Common lawyers frequently charged that the chancellors, still often acting out of a medieval or paternalistic conception of their role as "a court of conscience," were deciding questions of substantive justice in ways completely at odds with the rule of law. The charge that chancery cases were decided according "to the length of the chancellor's foot" was contrasted unfavorably with "fixed and settled principles of law."
By the beginning of the nineteenth century, the system of equity had been almost completely subordinated to the common law, as even the chancellors began to maintain that the substantive doctrines of law and equity were the same; only their remedies were different.43 The merger of law and equity in the New York Field Code of 1848 symbolizes the end of a separate, equitable system of substantive justice. Equity thus had finally submitted to the long-standing criticism that judicial enforcement of substantive conceptions of justice was contrary to the rule of law.
The Categorical Mind
Nothing captures the essential difference between the typical legal minds of nineteenth- and twentieth-century America quite as well as their attitude toward categories. Nineteenth-century legal thought was overwhelmingly dominated by categorical thinking-by clear, distinct, bright-line classifications of legal phenomena. Late-nineteenth-century legal reasoning brought categorical modes of thought to their highest fulfillment.
By contrast, in the twentieth century, the dominant conception of the arrangement of legal phenomena has been that of a continuum between contradictory policies or doctrines. Contemporary thinkers typically have been engaged in balancing conflicting policies and "drawing lines" somewhere between them. Nineteenth-century categorizing typically sought to demonstrate "differences of kind" among legal classifications; twentieth-century balancing tests deal only with "differences of degree."
There were a number of familiar categories that late-nineteenth-century judges invoked to decide cases: "direct-indirect" tests in a number of legal areas, especially under the commerce clause;44 "business affected with the public interest";45 "intervening" and "supervening" causes in the law of causation;46 a "literalist" interpretation of the Sherman Act that purported to distinguish clearly between contracts in restraint of trade and those not in restraint of trade;47 legislation that interfered with contract "rights" versus contract "remedies";48 distinctions between "taxation" and "takings"49 and between exercises of police power (or regulation) and confiscation; 50 and the exercise of eminent domain or taxing powers that served a public purpose and those that did not. 51 One could extend the list indefinitely.
Nineteenth-century legal classification expressed a mindset that also sharply distinguished legal from legislative reasoning by separating the legislative functions of trading and balancing among competing policies or interests from the supposedly judicial task of simply identifying the existing legal categories to which a dispute belonged. It was an extension of modes of legal reasoning that had long existed under the forms of action, where the lawyer's basic task was to identify the appropriate writ or form of pleading that would cover a particular case.
While judges and lawyers of the nineteenth century clearly believed that there were identifiable bright-line boundaries that judges could apply to a case without the exercise of will or discretion, it is all too easy to caricature their position. Most legal thinkers believed that legal categories contained what we might call a "core" and a "periphery." There was a class of cases that clearly belonged to the core; there were others, more difficult, that were part of the periphery. If the state should assign the title of A's property to B without compensation, that was clearly a core case of taking. But there were many cases of "indirect" or "consequential" injury to property that were at the more problematic periphery of the category. While the task of applying these categories frequently required difficult exercises of judgment in particular cases, the intellectual goal was the same: to decide whether a dispute fell within one or another mutually exclusive category.
This distinction between core and periphery led nineteenth-century judges to intone a formula that is all but incomprehensible to twentieth-century jurists. While the application of a constitutional provision varies with changing circumstances, these judges often declared, its meaning is nevertheless fixed and unchanging. For late-nineteenth-century jurists, the difference between the meaning and the application of a legal rule or doctrine was the difference between the core and the periphery of that doctrine. The task of the judge in hard cases was to decide whether they looked more like the core cases in one class rather than another.
Early-twentieth-century legal thought was devoted to attacking these modes of categorical thinking by portraying them as formalistic and artificial. The emergence of balancing tests in numerous areas of the law is a prominent measure of the success of Progressive legal thinkers in undermining categorical thought. One sees the appearance of balancing tests in many different areas of the law after 1g1o: in the "rule of reason" in anti-trust law;52 in the law of nuisance;53 in the "reasonableness" (Hand) standard in negligence;54 in the test of when a regulation becomes a taking; 55 and in the clear and present danger test for free speech. 56 In 1921 the most important Progressive legal thinker, Roscoe Pound, declared that a new jurisprudence should encourage a "weighing of social interests."57
In the realm of academic thought, it was Holmes who had prepared legal thinkers for the attack on categorical modes of thought. His emphasis on line drawing and his insistence that legal reasoning was all a matter of degree were designed to subvert the dominant mode of thought. Yet ultimately one feels that it was the old order itself that had prepared the seeds of its own destruction. For one can identify the moments at which categorical thought began to break down within legal orthodoxy itself. As proponents of the old system of thought began the process of abstraction and integration, they extended its categories too far. The compartmentalizing mechanisms within orthodoxy for regulating or denying the limits of categorical thought were stretched to the breaking point. And the old order itself reached in desperation for a balancing test.
The Neutral State and Classical Legal Thought
In progressive constitutional historiography, the decision of the U.S. Supreme Court in Pollock v. Farmers' Loan & Trust Co. (1895)58 has always stood for the essence of judicial usurpation. In that case the Court held, seemingly contrary to the existing precedents, that an income tax was a direct tax requiring apportionment among the states. And since state-by-state apportionment of a tax on individual income was practically impossible to implement, the decision delayed for eighteen years-until the passage of the Sixteenth Amendment-any federal tax on incomes.
I will show that, far from marking a sharp break with the past, the decision in Pollock instead exemplified the crystallization and culmination of ideas that had been gathering strength in American constitutional thought for over fifty years. Pollock simply represented one of the most dramatic applications of a recent convergence of constitutional doctrines that would restrict the power of the state to redistribute wealth.
The "night watchman" state that was first outlined for Americans in Madison's Tenth Federalist embodied what would become a pervasive nineteenth-century liberal vision of a neutral state, a state that could avoi
d taking sides in conflicts between religions, social classes, or interest groups. While the hope of achieving such neutrality was articulated from the beginning of the Republic-with law being assigned a special cultural role as neutral arbiter-there were other, perhaps more dominant political or legal ideas that first needed to he defeated or marginalized. In some states, religious disestablishment did not take place until 1833.59 The vision of law embodied in the English and American constitutional systems did not really gel until the 18zos. For example, judicial review at the state level was not entirely legitimated until the 1840s and, at the federal level, until after the Civil War.60 While one strand of the antebellum codification movement challenged the neutrality of the common law, its considerable practical success can only be appreciated once we realize that by 184o a majority of the states, which had once appointed judges, now elected them.6' There were, in short, many institutional and ideological impediments to reaching the ideal of a government of laws and not of men.
What has variously been called a Republican or Whig or Commonwealth conception of the state stood opposed to the liberal idea of neutrality.62 In political economy as well, the triumph of laissez-faire liberalism can be dated from the second half of the century.
It was perhaps the trauma of the Civil War that crystallized these separate antebellum tendencies in favor of a state that could stand above all factions and interests. Or perhaps each of the separate strands in law, politics, and economics grew stronger and finally converged around the ideal of a neutral state. Or perhaps the triumph of the neutral state in late-nineteenth-century thought should be seen in relationship to the clear increase in social conflict and inequality that was emerging at the same time. In this version, the ideal of neutrality represents a form of denial: As the level of social conflict produced ever more anxiety, the yearning to believe in an idealized oasis of neutrality became correspondingly greater.