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1998 J. Sup. Ct. Hist. 35 (1998)
Melville W. Fuller Reconsidered

handle is hein.journals/jspcth1998 and id is 40 raw text is: Melville W. Fuller Reconsidered James W. Ely Jr. Appointed Chief Justice by President Grover Cleveland in 1888, Melville W. Fuller presided over the Supreme Court during a piv- otal era of American history.' Fuller and his col- leagues were the first to grapple with a myriad of modern legal issues arising from the eco- nomic transformation of the United States into an industrial nation. In so doing, the Fuller Court rendered a host of important and well- known decisions-Pollock, Debs, E.C Knight Co., the insular cases, Plessy Lochner-that defined economic and social institutions well into the twentieth century. The Court also ruled that compensation for private property taken for public use was an essential element of due process as guaranteed by the Fourteenth Amendment, and invoked the dormant Com- merce Clause to protect the national market from state-imposed obstacles to commerce. By and large, however, history has not been kind to Fuller and his associates. Historians have been all too prone to echo the views of the Progressives, who pictured the Fuller Court as a handmaiden of big business. Thus, Owen M. Fiss in his recent book expressed the con- ventional wisdom: By all accounts, the Court over which Melville Weston Fuller presided, from 1888 to 1910, ranks among the worst Yet such a bleak assessment is problematic. First, it is clearly subjective, because it depends upon the value choices of the evaluators. Several commentators have revealingly argued, for in- stance, that the problem with the pre-New Deal Court was that the Justices gave content to the property clauses of the Constitution and en- forced rights associated with market freedom against govemment power. These apparently were the wrong rights. But is there a principled basis by which we can decide that constitu- tional guarantees ought to be enforced? Should historical reputation turn upon what claims of right are currently fashionable in political or academic circles'? Second, it ignores an array of scholarship suggesting that the traditional

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