LEGAL FORMALISM AND PROGRESSIVISM

LEGAL FORMALISM AND PROGRESSIVISM: TREATMENT OF WOMEN AND

This research discusses the role of legal formalism and legal progressivism in the treatment of women and African-Americans between 1865 and 1930. The debate over legal philosophy which was played out during this period figured prominently in the outcome of important cases involving women and blacks. That controversy was a symptom of deeper social divisions which inhibited progress during this period. The inroads made by legal progressivism on legal formalism set the stage for later gains by these groups.

Law as Barrier to Social Progress in the late 19th Century

In the decades which followed the Civil War, Americans were primarily preoccupied with the explosive economic growth that accompanied industrialization and the development of the subcontinent. The legal philosophy which dominated that era was designed to promote that growth and to minimize government interference with it. Supreme Court Justice Richard Field helped articulate judicial doctrines, such as his public-use doctrine, which provided a basis for judicial activism in reviewing social legislation enacted by legislatures. Field saw the courts as a neutral force, levelling the playing field so that the private and public sectors could cooperate in the public interest. His concerns about "constitutional limitations on the state's inherent power" were somewhat narrow and unresponsive to what McCurdy called "the

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(1908), a law segregating by race a private college was upheld. The opinions of the majorities in those cases reveal the thinness of the courts' reasoning and its resort to legal fictions, such as that Congress had not given itself the power to enforce the 14th Amendment. Justice John Harlan in his dissents in the Civil Rights cases and Plessy v. Ferguson exposed the hypocrisy involved and plainly said that the majority was ignoring the obvious discriminatory intent of the state legislation, including so-called "separate but equal" public facilities. In his view of the Constitution, "in the eye of the law, there is in this country no superior, dominant, ruling class of citizens . . . Our Constitution is color-blind . . . In respect of civil rights, all citizens are equal before the law" (Plessy 559). Legal progressivism was almost entirely a white middle-class movement with support among white labor leaders and women's groups. The Supreme Court's real reasons for many of its decisions involving African-Americans was its belief that society was not ready for vigorous enforcement of the 14th Amendment to redress racial discrimination. This comes through clearly in the following excerpts from the majority opinion in Plessy v. Fer

Category: History - L