The Historical Argument in American Legal Culture 199 sical liberals took their individualismseriously, so much so that they believed the free individual was seriously endangered by increasing concentrations of private economic power: they thought a vigorous antitrust policy was essential to maintaining “free labor” - the capacity to rise to self-sufficient independent ownership through work - as well as republican citizenship. The great jurists of 1 9th century classical constitutionalism, men like Judges Stephen J. Field and Thomas Cooley, would have regarded the subsidies, exemptions and tolerance for combination and concentration that present-day policies extend to business as an abject selling-out of the cause of sturdy self-governing individual citizens to the control of wealth — economic dependence and monopoly. They would have been genuinely shocked by the reduction of the moral, political and distributive goals of antimonopoly policy to “efficiency” and “consumer welfare”, as if such goods could compensate for the loss of republican independence and individual freedom.Such classical liberals also assumed - and here the contrast with today’s libertarians is perhaps most stark — that the reason that the law need prescribe only minimal social duties was that skict moral and social codes would ensure that the better-off classes would act on the obligation to protect and care for their employees and communities: their libertarianism assumed a systemof strongly enforced norms of social paternalism. It was when private paternalism visibly failed to alleviate the problems of poverty, unemployment, workplace abuse and family breakup, that classical reformers created the programs of protective regulation and benefits which are the recognizable ancestors of today’s regulatory-welfare state. The origins of modern welfare policy — both in its better and its worse aspects — are not the in the 1960s “counterculture”, but in Victorian values themselves. In short, the institutions that the classical revival sees as ad hoc associations of individuals, making contracts that maximize their interests, revisionists are likely to reanalyze as hierarchies or communities, both more authoritarian and more cooperative, and certainly more embedded and culture-laden: the quasifeudal structure of employment relations, systems of racial, gender and ethnic caste subordination for organizing household, farmand even industrial labor, existing alongside strikingly egalitarian cooperative-producers associations, well-regulated commons in grazing lands, mining camps and fishing ground, city-owned public utilities, union-run factories. What is supposed to be the parsimonious hard spare classical piazza at the center of the customary comSec Charles MeCurdv, “Justice Field and the Jurisprudence ot Government-Business Relations,” yo;o7;ij/ of American History 61 (1975): 970; Alan Jones, The Constitutional Conservatism of Thomas McIntyre Cooley (New York: Garland, 1987), Michael Les Benedict, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Gonstitutionalism,” Lav and History Reviev 3 (1985): 293. '•* See David Roberts, Victorian Origins of the British Welfare State (New Fiaven: Yale Univ. Press, 1960); Theda Skoepol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Fiarvard Univ. Press, 1992).
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