Robert W. Gordon 188 changing conditions of industrial society. They argued that the “individualist” premises of Classical legal thought, which had originated in the natural-law thinking of the 17th and 18th centuries, had functioned well enough in an older America — an agrarian society on an open frontier with abundant land, a society of small independent producers — but was wholly unsuited to an industrial society of giant organizations.^ The realization of individual freedom in such a society, as Chief Justice Hughes put in a famous New Deal case, required “increased use of the organization of our society in order to protect the very bases of individual opportunity Thus thev revised the story of stages of development to which legal change should functionally adapt by inventing a new stage - that of industrial or collective society. Its implications for many Progressives were that the giant corporation should be legally naturalized - transformed froma monopoly or conspiracv into a person - but so should the labor union, and a new role recognized for the state in regulating both.’° The third great wave of liberal-legal ideologies, the “Rights Revolution” of the 1960s and 70s, engineered by the civil rights and feminist movement and by the Supreme Court under Chief Justice Earl Warren and the federal government under Presidents Lyndon Johnson and (surprisingly!) Richard Nixon, was also faithful to the dynamic narrative of liberal progress. This phase added on yet a further stage in the evolution of liberal societies: one in which the state had to act affirmatively to bring groups who had been excluded or subordinated into full legal citizenship: women, blacks and other minorities, underrepresented voters, aliens, the illegitimate, those accused of crimes, prisoners, mental inmates, welfare recipients; and also to impose new legal controls on bureaucratic government to make it more transparent and responsive. Some lawyers and judges urged - though ultimately unsuccessfully - more radical claims as well: to the effective fulfillment of economic and social rights such as the right to a minimum standard of living.’^ But much of this rights-rhetoric was entirely tradition-based: the rights were not new, but simply required to fulfill America’s original liberal promise under changed conditions - such as the traditional right to the protection of “property” in an age where property increasingly took the formof grants of state privileges, licenses, benefits or employment.'- ** See, e.g., Roscoe Pound, The Spirit of the Common Law (1921; reprinted Boston: Beacon Press, 1963). Home Insurance Co. v. Blaisdell, 290 U.S. 398, at 442 (1934). See, among innumerable examples, Jeremiah Smith, “Crucial Issues in Labor Litigation," HarvardLaw Review20 (1907) 253, 345, 429 (1907); Dalton Hamilton, “Property— According to Locke,” Yale LawJournal 41 (1932): 864. " See Samuel Krislov, “The OEOLawyers Fail to Constitutionalize a Right to Welfare,” Minnesota Law Review 58 (1973): 21. See Charles Reich, “The New Property,” Yale LawJournal 73 (1964): 733.
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