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

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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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