TjiE Historical Argument in American Legal Culture 187 as legal equals in the polity and economy. Progress has been mainly defined in negative terms, as what we have been evolving awayfrom— which was “feudalism”.^ Later in the century “feudalism” was replaced with “socialism” and later still “Bolshevism” as liberty’s great opposite. The story, as I say, combined static with dynamic elements, but emphasized the dynamic. The Constitution and the common law had a core of “principle”, of fundamental unchanging meanings, but principle had to be adapted to changing circumstances, and above all to the modernizing dynamic of history. The static and dynamic modes were ultimately reconciled through teleology: the assertion that basic legal principles were “working themselves pure”, were gradually evolving fromprimitive, obscure or cluttered forms to the highest and best realization of themselves. The “Classical” liberals who dominated legal thought at the end of the 19th century needed a dynamic viewof history because they knew perfectly well that the economic and political liberalism they espoused had not existed in any pure form at the Nation’s founding: when there had been extensive mercantilistic restrictions on trade, including wage and price controls; and when above all. Southern states had legally established, and the national Constitution had protected, slavery. The “Progressive” liberals (or New Liberals) of 1890—1930 who followed and criticized the Classics preserved the basic dynamismof the narrative. Some of the Progressive lawyers, to be sure, were aggressively modernist in outlook, treating the past as a disposable nuisance. The only use for history in this mode was critical - to help shed the law of its cobwebs by showing it up as antique, irrelevant, rooted in barbaric or obsolete social contexts and outgrown conceptions.^ (Some of our greatest jurists, like Justices Holmes and Cardozo, were modernists, if rather conservative modernists.) In this critical and modernist mode of Progressive history, legislation, based on the latest social science that would break the cake of custom and refashion the legal framework according to the dictates of utilitarian reason. The end-point in the most optimistic versions was the escape from history: and the promise of beginning anewwith scientific social-welfare legislation. But most Progressive jurists did not seek to escape from history, but rather pragmatically to reshape the law to conformto what they saw as the pace and tendencies of historical change. Legislation in their viewwas not against or out of custom, but followedcustom, was nowto be the primary method for adapting lawto social evolution. The old common lawsystemhad become dysfunctional, overtaken by events, had evolved too slowly to cope with the rapidly See, e.g., Thomas M. Cooley, “Limits to State Control of Private Business,” Princeton Review (1878); John F. Dillon, The Laws and Jurisprudence of England and America (Boston: Little Brown, 1894). ^ See, e.g., O. W. Holmes, Jr., “The Path ofthe Law,” Harvard Law Review 10 (1897): 457; Benjamin Carodzo, The Nature of the Judicial Process (New Haven: Yale Univ. Press, 1921).
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