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 rapidly changing needs of an ever-expanding capitalist society" (265).
The courts were caught in the middle between the demands of private property and the concerns over the need to curb the excesses and abuses of unbridled capitalism. The Supreme Court grudgingly acknowledged in cases such as Munn v. Illinois (1877) and the Granger railroad cases of the 1880s the police power of the states to regulate economic activity within their borders, especially their power to regulate railroad and ...