Introduction
Political institutions appear to be "more than simple mirrors of social forces."
They are themselves created by past human political decisions that were in some
measure discretionary, and to some degree they are alterable by future ones. They
also have a kind of life of their own. They influence . .. the senses of purpose and
principle that political actors possess.
And sometimes, at least, those purposes
and principles may be better described as conceptions of duty or inherently
meaningful action than as egoistic preferences. Correspondingly, the behavior
they alter may serve other values than economic or systemic functionality.-
Rogers Smith!
When contemporary commentators decry the abuse of judicial power or
the evils of "judicial activism" the historical examples that most readily
come to mind are drawn from Supreme Court decision making around
the turn of the century, a period often referred to as the"
Lochner
era."
According to the long-standing common wisdom about this period,
toward the end of the nineteenth century many conservative American
judges began to aggressively disregard the proper boundaries of their
authority in order to search out and destroy "social legislation" that was
inconsistent with their personal belief in laissez-faire economics and
social Darwinism. Prior to this period the postbellum judiciary had given
some indication that it would be tolerant of innovative government
interventions in the market. During the I870S and I880s, for example,
the Supreme Court permitted states to set up slaughterhouse monopo-
lies, regulate the rates that could be charged by the owners of grain
elevators, and prohibit the sale of alcohol and foodstuffs such as oleo-
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