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9 J. Juris 37 (2011)
On the Formation of the American Corporate State: The Fuller Supreme Court, 1888-1910

handle is hein.journals/jnljur9 and id is 37 raw text is: THE JOURNAL JURISPRUDENCE

With the collapse of the American financial system in 2008, and its widespread
consequences for the American people and indeed the global economic impact
of the collapse, it became apparent that certain corporations became too big to
fail. It aroused widespread interest among the public as to how these
corporations ever achieved such a status. This article hopes to return to a
historical point in time, the Gilded Age and Progressive era, in order to attempt
to locate the seeds of today's too big to fail corporations. By focusing on the
Fuller Supreme Court, 1888-1910, we can locate the origin of the American
corporate state.
The legal support of laissez-faire capitalism set in motion the foundation of
current corporate institutions. Although there is not much dispute of the
excessive use of laissez-faire doctrine during the Fuller Court, there has
emerged in the past couple of decades a group of revisionist scholars willing to
explain the Court's actions free from the Progressive school of history. Three
major scholars representing three types of schools of thought were selected:
Bruce Ackerman, neo-federalist dualist democracy school, James Ely, Jr., neo-
liberal conservative school, and Howard Gillman, neo-institutionalist school.
I will attempt to first lay out the use of laissez-faire capitalist doctrine by the
Fuller Court, and then I will turn to the revisionist interpretation of the Court.
This work will seek to answer two questions: 1) Was the Fuller Supreme Court
1 The use of the phrase corporate state will be taken to mean of a general power over
government and society broadly speaking, the corporatization of America, as a matter of
default. That is to say, if we can say that the state function of America during the Gilded Age
and Progressive era was fragmented (deliberately so by the nature of the Constitution), then we
should be able to observe how such a vacuum of political power can be claimed as a matter of
default by emerging corporate power. As the nature of rural America changed due to
industrialism, it continued to operate under limited government principles even though
industrialism required direct government intervention in the private sector if it was to control
the power of the corporation. That is, the corporate state will refer to the default power as a
result constitutional fragmentation and the Founder's creation of a weak Federal government.
(2011) J. JURIS 37

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