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9 BETTING ON THE FUTURE Fuller began to experience ill health during the 1909-10 term of the Supreme Court and became visibly more feeble. He died at his summer home in Sorrento, Maine, on July 4, 1910, at the age of seventy-seven and was buried in Chicago. He had served as chiefjustice for twenty-two years, a period longer than that of any other chief in American history except John Marshall and Roger B. Taney. While he was a student at Bowdoin College Fuller wrote an essay addressing the question 'l\.re great intellectual powers preferable to energy and decision of character?" He revealingly answered in the negative. "The world furnishes many examples," he observed, "of the superiority of the truly earnest and laborious mind over the merely intellectual."! Much of Fuller's subsequent career vindicated this thesis. Perseverance, hard work, a convivial personality, distinguished achievements at the bar, and a measure of luck propelled him into the center chair of the Supreme Court. There he became an institutional and administrative leader of the justices rather than a dominant intellectual force. Although he wrote some significant opinions dealing with constitutional and private law issues, he preferred to guide the Court behind the scenes. Fuller was instrumental in orchestrating a conservative majority and directing the Court toward a more active role in American society. The most important dimension ofjurisprudence during the Fuller era was dedication to entrepreneurial liberty and the rights of property owners . Closely related to this judicial policy was a determination to protect the free flow of trade among the states and to fashion a general common law to govern interstate commercial transactions. To these ends Fuller and his colleagues developed the doctrine of substantive due process, be1 . Willard L. King, Melville Weston Fuller: ChiefJustice ofthe United States, 188~1910 (New York: Macmillan, 1950, reprint Chicago: University of Chicago Press, 1967), 22-23. 212 BETTING ON THE FUTURE 213 gan to apply the takings clause, and strengthened the place of the federal judiciary in the constitutional system. The Fuller Court's efforts to safeguard economic rights should be understood as a fulfillment of the property-conscious values that shaped the constitution-making process in 1787.2 Supporting the Court's decisions was the classical economic theory dominant in the late nineteenth century that saw government intervention in the free market as usually harmful to the public welfare. Utilitarian considerations also influenced the justices. The need to encourage investment capital as the engine ofeconomic growth was repeatedly emphasized in rulings during the Fuller period. Yet the pattern of decision making by the Fuller Court was complex and took account of other constitutional principles. Foremost among these was a commitment to federalism. At the turn of the century large segments of society still looked to the states rather than the federal government to solve social problems. Consistent with this preference for limited and balanced government, the Supreme Court, and Fuller in particular, sought to preserve a large measure of autonomy for the states in handling social issues and criminal justice. Nor did the justices act as the single-minded champions of corporate interests so often depicted by historians. On the contrary, a wide variety of regulatory measures passed constitutional muster during Fuller's tenure. There was, in other words, a degree of tension between judicial solicitude toward property rights and the growing national market on one hand and the pull of traditional states' rights sentiment on the other. Resolution of this conflict was not free from difficulty. It also deserves emphasis that Fuller and his associates usually operated within the general climate of public sentiment. As one scholar has aptly concluded, "Lochner era jurists realized the importance of public opinion in the evolution of constitutional law. In propounding laissezfaire constitutionalism, they believed public opinion was on their side."3 The justices shared the economic and social views of the age and spoke for the dominant political alliance. In many respects the Fuller Court's approach to jurisprudential issues mirrored the attitudes of American society as a whole. Like most Americans of the period, for instance, the justices displayed little sympathy for the claims ofsocial outsiders, such as unions and racial minorities. The Court tended to ratify m.yoritarian preferences and rarely challenged legislation dearly reflecting the wishes 2. James w. Ely, Jr., The Guardian ofEvery Other Right: A Constitutional History ofProperty Rights (New York: Oxford University Press, 1992), 42-58. 3. Stephen A. Siegel, "Lochner Era Jurisprudence and the...

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