FULLER, MELVILLE W. (1833–1910)

Melville Weston Fuller, eighth Chief Justice of the United States, was appointed by grover cleveland in 1888 and presided over the Court until his death on July 4, 1910. Fuller's twenty-two-year tenure as Chief Justice, the longest during the Court's second century, spanned one of the most significant periods of constitutional development in American history. Fuller and his associates circumscribed the rights of state criminal defendants under the fourteenth amendment, established an inferior legal status for residents of the new overseas colonies, articulated the infamous separate but equal doctrine, and devised a spate of other juristic strategies for avoiding interventions on behalf of black petitioners in the fields of education and voting rights. At the same time the fuller court made so many new departures in decisions affecting the economic order that one scholar has described its work as "the new judicialism." Fuller and his colleagues invalidated the federal income tax, emasculated the Interstate Commerce Commission, put the Court's imprimatur on the labor injunction, construed the commerce clause so that the sherman antitrust act frustrated the activities of labor unions yet failed to impede the fusion of manufacturing corporations, and elaborated the concept of substantivedue process as a guarantor of vested rights and liberty of contract.

The vast bulk of the Fuller Court's work in constitutional law reflected the Chief Justice's constitutional understanding, the contours of which had been firmly fixed before Fuller came to the bench. Beginning in 1856, when he left his native Maine and settled in Chicago, Fuller was an active stump speaker and essayist for the Illinois Democratic party; he styled himself a disciple of Thomas Hart Benton and stephen a. douglas long after both were dead. Fuller spoke often in favor of free trade, hard money, and equal opportunity in the market. "Paternalism, with its constant intermeddling with individual freedom," he wrote in 1880, "has no place in a system which rests for its strength upon the self-reliant energies of the people." But Fuller's version of the equal rights creed had no place for blacks. An exponent of a conservative naturalism that stressed the importance of homogeneous communities and local autonomy in American public life, Fuller believed that union and republican liberty were possible only if the federal government acquiesced in local racial arrangements on the same ground that it acquiesced in state laws regulating the status of women. He objected to the emancipation proclamation on the ground that it was "predicated upon the idea that the President may annul the constitutions and laws of sovereign states." He claimed that the thirteenth amendment and Fourteenth Amendment protected only the "common rights" of individuals against discriminatory classification. And he never ceased to insist that Congress's powers to regulate persons or property were limited, derivable only from specific grants and not from any assumption of an underlying national sovereignty. Fuller's longest, most plaintive dissents came in the insular cases (1901), where he denied Congress's power to levy tariffs on the products of colonial possessions, and in champion v. ames (1903), where he contended that Congress could not exercise police powers on the pretense of regulating commerce.

Fuller did not grapple with the Court's role in the American system of government following his appointment as Chief Justice. For Fuller, as for Benton, Douglas, and Cleveland, the Constitution was more than a text that allocated specific powers and secured particular rights against government. The Constitution was significant above all as the repository of values so integral to the existence of republicanism that any public official who failed to protect and defend them was guilty of a breach of trust. Consequently, Fuller conceptualized the judicial function in terms of duty rather than in terms of role; his approach to judging was instinctive rather than ratiocinative. Since he had long associated the Constitution with the Democratic party's mid-nineteenth-century dogmas, Fuller impulsively enforced those dogmas as the law of the land. It was no accident that james bradley thayer published his path-breaking assessment of "The Origins and Scope of the American Doctrine of Constitutional Law" five years after Fuller's appointment or that a school of jurisprudence dedicated to "judicial self-restraint" grew increasingly large and vocal during his tenure. Other critics accused his Court of aiding the rich and powerful at the expense of the poor and helpless in the name of judicial neutrality. But Fuller neither replied to them nor sought to persuade others to do so. He simply hoped it would always be said of him, as he said of Cleveland in a 1909 eulogy, that "he trod unswervingly the path of duty, undeterred by doubts, single-minded and straight-forward."

The Chief Justice's constitutional understanding may have been "single-minded and straight-forward," but the Fuller era abounds with anomalies all the same. First there is the matter of Fuller's reputation. Until earl warren's day, no Court was subjected to more strident criticism for a more sustained period of time than Fuller's. Yet when Fuller died the press concurred that none of his predecessors had been so successful in earning the respect and confidence of the country. Even theodore roosevelt'sOutlook conceded that Fuller was "perhaps the most popular" though "not the strongest or most famous Chief Justice." Perceptions of Fuller's capacity for judicial leadership were equally anomalous. The Chief Justice voted with the majority in virtually every leading case decided during his tenure. If stephen j. field is to be believed, moreover, Fuller was effective in setting the tenor of conference discussion. "Field told me on the bench this morning," Fuller informed his wife in 1891, "that in the conference I was almost invariably right. He said I was remarkably quick in seizing the best point." Yet contemporary observers invariably described him as a weak Chief Justice who neither led his Court nor exerted a substantial influence on its outlook.

The greatest anomaly of the Fuller era was the doctrinal structure of "the new judicialism." When Fuller contemplated the future of the republic in a centennial address on george washington, two fears loomed especially large. One was that "the drift toward the exertion of the national will" might ultimately result in "consolidation," which in turn would impair the "vital importance" of the states and undermine self-government by extending the sphere of legislative authority to such a degree that the people no longer controlled it. The other was "the drift … towards increased interference by the State in the attempt to alleviate inequality of conditions." Fuller admitted that "[s]o long as that interference is … protective only," it was not only legitimate but necessary. "But," he added, "the rights to life, to use one's faculties in all lawful ways, and to acquire and enjoy property, are morally fundamental rights antecedent to constitutions, which do not create, but secure and protect them." It was imperative, he said, that Americans never grow "unmindful of the fact that it is the duty of the people to support the government and not of the government to support the people." Each of these concerns soon reappeared as major premises in the Court's construction of Congress's commerce power and in its articulation of the liberty of contract protected by the Fifth and Fourteenth Amendments. But the Chief Justice directed a cacophonous band, not an orchestra. Decisions which, in Fuller's view, were consistent with one another looked antithetical to other observers because different Justices expressed the Court's opinions in different language.

Fuller regarded the liberty of contract doctrine as a juristic device for distinguishing between "paternalism," which he thought was unconstitutional, and legislation that "is protective only." Thus the maximum hours law for miners at issue in holden v. hardy (1898) was valid because it protected the health and safety of workers employed in an inherently dangerous occupation. But the maximum hours law for bakery workers invalidated in lochner v. new york (1905) and the erdman act of Congress prohibiting discrimination against union members were unconstitutional because neither statute was "protective only." In Fuller's view, government had no authority to redress inequalities in the bargaining relation. "The employer and the employee have equality of right," john marshall harlan explained for the Court in Adair v. United States (1908), "and any legislation that disturbs that equality is an arbitrary interference with liberty of contract, which no government can legally justify in a free land." Yet in Holdenhenry brown spoke at length about the inequality of bargaining power between employees and employers; he also implied that the worker's inability to contract for fair terms provided a legitimate rationale for government intervention. Although Brown apparently retreated from that position when he joined the Lochner majority seven years later, the language he used in Holden was never expressly disapproved.

The disparity between Fuller's constitutional understanding and the language used by colleagues in opinions he assigned was even more pronounced in the commerce field. Speaking for the Court in united states v. e. c. knight co. (1895), Fuller held that the Sherman Act could not be constitutionally construed to require the dissolution of manufacturing corporations when the transactions deemed unlawful in the government's complaint involved neither interstate transportation nor interstate sales. "Commerce succeeds to manufacturing," he explained, "and is not part of it." Underlying this distinction were three assumptions which Fuller elaborated with varying degrees of clarity. Congress could not regulate manufacturing combinations under the commerce clause, he said, for if that were permitted there was nothing to prevent Congress from regulating "every branch of human activity." Fuller also contended that that line between manufacturing and commerce was readily ascertainable. In a spate of recent dormant commerce clause decisions the Court had invalidated state tax laws and police regulations that burdened interstate transactions yet had sustained such legislation when it burdened the production process. With the exception of state laws that burdened commerce "indirectly" and might therefore be sustained under the rule of cooley v. board of wardens (1851), then, Congress could regulate only what the states could not and vice versa. Finally, Fuller made it clear that when manufacturing firms made "contracts to buy, sell, or exchange goods to be transported among the several states," the federal government had a duty to intervene under the Sherman Act if those contracts, or agreements pursuant to them, were in restraint of trade. In Robbins v. Shelby County Taxing District (1887), a leading dormant commerce clause case, the Court had held that "the negotiation of sales of goods which are in another state … is interstate commerce."

Fuller believed that his construction of Congress's powers under the Sherman Act had two important virtues. It forestalled "consolidation" and it was easy to apply. Congress could certainly reach the agreement at issue in Addyston Pipe & Steel Co. v. United States (1899), for there a pool had been devised to allocate the interstate distribution of goods among the cooperating firms. And in loewe v. lawlor (1908) the hatter's union had not only gone on strike, thus disrupting the production process, but had engaged in a secondary boycott to prevent the sale of hats in interstate commerce. swift & co. v. united states (1905) posed equally simple issues for Fuller. Some thirty firms had agreed to refrain from bidding against one another when livestock was auctioned prior to its delivery for slaughter at the Chicago packinghouses. Clearly, as the Court explained, "the subject-matter [was] sales and the very point of the combination … to restrain and monopolize commerce among the states in respect to such sales." But Fuller had designated oliver wendell holmes to speak for the Court in Swift, and Holmes had a great deal more to say. Holmes remarked that "commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business." He spoke metaphorically about a current of commerce, suggesting that local production and interstate marketing were not distinct processes so much as parts of a single, undifferentiated process. (See stream of commerce doctrine.) And he cast a pall of doubt on the idea, implicit in Fuller's Knight opinion, "that the rule which marks the point at which State taxation or regulation becomes permissible necessarily is beyond the scope of interference by Congress in cases where such interference is deemed necessary for the protection of commerce among the States."

Each of the anomalies of the Fuller years is attributable to the personality of the Chief Justice and his conception of the office. Fuller was a self-effacing, amiable man who was gracious and courteous, even deferential, to his colleagues. He made every effort to secure harmonious relations among the Justices. Fuller inaugurated the custom, still followed today, that each Justice greet and shake hands with every other Justice each morning. And he used his authority to assign opinions when in the majority not to enhance his own reputation or to elaborate favorite doctrines but to cultivate the good will of his associates. The opinion in a leading case ordinarily went to the colleague who, in Fuller's judgment, was most likely to want to speak for the Court. Cases involving questions of jurisdictionand practice or mundane matters of private law Fuller kept to himself. Thus he let Field deliver the Court's opinions in Georgia Banking & Railroad Co. v. Smith (1889), a rate regulation case, and Chae Chan Ping v. United States (1889), the Chinese Exclusion Case. Both controversies raised issues of enormous importance to Field; for that very reason Fuller's predecessor had been disinclined to permit Field to address them for the Court.

Fuller also assumed that Brown would consider Holden a plum, for he had recently addressed the American Bar Association on the labor question. rufus peckham had earned the right to speak for the majority in Lochner by dissenting without opinion in every previous case involving legislative regulation of the labor contract. The Adair decision provided Fuller with an opportunity to elaborate his own liberty of contract views in a systematic fashion, but he gave the opinion to Harlan instead. Harlan had dissented in Lochner on the grounds that the Court had no authority to reject the legislature's reasonable claim that long hours affected the health and safety of bakery workers. In Adair the government advanced no such claim and Harlan's opinion barely noticed the Court's prior liberty of contract rulings. Holmes was the logical choice for Swift, for the opinion would show Roosevelt that the administration had drawn spurious conclusions about Holmes's antitrust views from northern securities co. v. united states (1904).

The Chief Justice's obsession with courtesy also accounts for the striking differences between his own views and the Court's language in opinions which he assigned. He stubbornly defended his convictions in conference and, if necessary, in dissent. But once he had voted with the majority and had authorized an associate to speak for the Court, Fuller never criticized the work produced by a colleague. Good will among the Justices might be lost forever because of a single quarrel; incongruities of doctrine could always be repaired later. Fuller let it be known that forthright yet polite concurring opinions were preferable to postconference haggling over doctrine, and silent acquiescence in the opinion of the Court was more preferable still. Fuller's own behavior set high standards for his associates; he wrote only seven concurring opinions in twenty-two years.

Underlying Fuller's management of the Court was a belief that the Chief Justice's primary duty was to convey to the public the impression that in the Court, more than in any other institution of government, reason triumphed over partisanship and statesmanship prevailed over pettiness. Fuller's success in achieving that goal while rarely speaking for the Court in landmark cases accounts for mis-perceptions of his capacity for intellectual leadership and for his great popularity despite persistent criticism of his Court's work. But Fuller's winning personality and the apparent anomalies it produced should not overshadow the relationship between his convictions and the new principles of law his Court articulated. Not since john marshall's day had the constitutional understanding of the Chief Justice been more at odds with that of voters and party leaders for such a prolonged period of time. Nevertheless, Fuller presided over a Court that made fundamentally new departures in constitutional interpretation which, in the main, incorporated the values he had imbibed during the party battles of a bygone era in American public life. Although Fuller hoped that eulogists would compare him with Cleveland, it might be more appropriate to analogize his career with that of another charming nineteenth-century Democrat. Like martin van buren, he rowed to his objectives with muffled oars.

Charles W. Mc Curdy
(1986)

Bibliography

Fuller, Melville 1890 Address in Commemoration of the Inauguration of George Washington as First President of the United States, Delivered Before the Two Houses of Congress, December 11, 1889. New York: Banks & Brothers.

King, Willard L. 1950 Melville Weston Fuller: Chief Justice of the United States, 1888–1910. Chicago: University of Chicago Press.

Paul, Arnold M. 1959 Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887–1895. Ithaca, N.Y.: Cornell University Press.