The Federalist Society says it seeks legal interpretations that are faithful to those that would have been made at the time the Constitution was written in the late 18th century. This fossilization of the law is a clever rhetorical subterfuge to advance the interests of the corporations and the oligarchs who have bankrolled the Federalist Society -- the Mercer Foundation, the late John Olin, the late Richard Scaife, the Lynde and Harry Bradley Foundation, the Koch brothers and the fossil fuel industry. The Federalist Society has close ties with the American Legislative Exchange Council (ALEC), whose lobbyists draft and push corporate-sponsored bills through state legislatures and Congress.
Stone knew that the law would become moribund if it was frozen in time. It was a living entity, one that had to forever adapt to changing economic, social and political reality. He embraced what Oliver Wendell Holmes called "legal realism." The law was not only about logic but also about the experience of a lived human society. If judges could not read and interpret that society, if they clung to rigid dogma or a self-imposed legal fundamentalism, then the law would be transformed into a sterile constitutionalism. Stone called on judges to "have less reverence for the way in which an old doctrine was applied to an old situation." The law had to be flexible. Judges, to carry out astute rulings, had to make a close study of contemporary politics, economics, domestic and global business practices and culture, not attempt to intuit what the Founding Fathers intended.
Stone was wary of radicals and socialists. He could be skeptical of New Deal programs, although he believed the court had no right to reverse New Deal legislation. But he understood that the law was the primary institution tasked with protecting the public from predatory capitalism and the abuses of power. He voted consistently with Holmes and Brandeis, two of the court's most innovative and brilliant jurists. The three were so often in dissent to the conservative majority they were nicknamed "The Three Musketeers."
The law, Stone said, must never "become the monopoly of any social or economic class." He condemned his fellow conservatives for reading their economic preferences into the law and "into the Constitution as well." By doing so, he said, they "placed in jeopardy a great and useful institution of government."
Stone embraced the doctrine of "preferred freedoms" -- the position that First Amendment freedoms are preeminent in the hierarchy of constitutional rights, permitting justices to override any legislation that curbs these freedoms. This became the basis for court decisions to overturn state laws that persecuted and silenced African-Americans, radicals -- including communists, anarchists and socialists -- and labor and religious activists.
Stone, as dean of Columbia Law School before being named U.S. attorney general in 1924 and joining the Supreme Court the year after that, said the school's mission was "devoted to teaching its students how to live rather than how to make a living." He denounced the Palmer Raids and mass deportations of radicals that ended in 1920. He supported five Socialist members of the New York State Assembly who were stripped of their elected seats by their legislative colleagues in 1920 because of their political views. And he said that everyone, including aliens -- meaning those who were not citizens but who lived in the United States -- deserved due process.
"[A]ny system which confers upon administrative officers power to restrain the liberty of individuals, without safeguards substantially like those which exist in criminal cases and without adequate authority for judicial review of the action of such administrative officers, will result in abuse of power and in intolerable injustice and cruelty to individuals," he wrote of laws that deprived aliens of constitutional rights.
As attorney general he weeded out corrupt officials and zealously enforced antitrust laws, swiftly making enemies of many leading industrialists, including Andrew Mellon. He also, ominously, appointed J. Edgar Hoover to run the FBI. His aggressive antitrust campaigns led to calls by the business community for his removal as attorney general, and he was elevated to the Supreme Court in 1925, a move that, as the New York Globe and Commercial Advertiser newspaper observed, "protected business from disturbing litigation or the threat of such litigation [and] has saved the [Coolidge] administration from the charge that it has betrayed business. ..."
The 1920s were, as Alpheus Thomas Mason wrote in his 1956 biography, "Harlan Fiske Stone: Pillar of the Law," "a decade pre-eminent for the exploitative large-scale business; its leaders preached the 'Gospel of Goods.' 'Canonization of the salesman' was seen 'as the brightest hope of America.' The absorbing ambition was to make two dollars grow where one had grown before, to engineer, as utilities magnate Samuel Insull put it, 'all I could out of a dollar' -- that is, get something for nothing."
Organized labor, which before World War I had been a potent social and political force, had been crushed through government repression, including the use of the Espionage and Sedition acts. Government regulations and controls had been weakened or abolished. It was a time when, as Sinclair Lewis said of Babbittry -- referring to the philistine behavior of the lead character in his 1922 novel "Babbitt," about the vacuity of American culture--the goal in life was to be "rich, fat, arrogant, and superior." Inequality had reached appalling levels, with 60 percent of American families existing barely above subsistence level by the time of the 1929 crash. The American god was profit. Those not blessed to be rich and powerful were sacrificed on the altar of the marketplace.
The New Hampshire-born Stone, grounded in rural New England conservatism and Yankee thrift, was appalled by the orgy of greed and inequality engineered by his fellow elites. He denounced a hedonistic culture dominated by unethical oligarchs and corporations very similar to those that exist today.
"Wealth, power, the struggle for ephemeral social and political prestige, which so absorb our attention and energy, are but the passing phase of every age; ninety-day wonders which pass from man's recollection almost before the actors who have striven from them have passed from the stage," he wrote. "What is significant in the record of man's development is none of these. It is rather those forces in society and the lives of those individuals, who have, in each generation, added something to man's intellectual and moral attainment, that lay hold on the imagination and compel admiration and reverence in each succeeding generation."
Wall Street's crash in 1929 and the widespread suffering caused by the Depression confirmed Stone's fears about unfettered capitalism. Victorian-era writer Herbert Spencer, who coined the term "survival of the fittest" and whose libertarian philosophy was widely embraced in the 1920s, argued that liberty was measured by the "relative paucity of restraint" that government places on the individual. Stone saw this belief, replicated in the ideology of neoliberalism, as a recipe for corporate oppression and exploitation.
If the law remained trapped in the agrarian, white male, slave-holding society in which the authors of the Constitution lived, if it was used to exclusively defend "individualism," there would be no legal mechanisms to halt the abuse of corporate power. The rise of modern markets, industrialization, technology, imperial expansion and global capitalism necessitated a legal system that understood and responded to modernity.
Stone bitterly attacked the concept of natural law and natural rights, used to justify the greed of the ruling elites by attempting to place economic transactions beyond the scope of the courts. Laissez faire economics was not, he said, a harbinger of progress. The purpose of the law was not to maximize corporate profit. In Stone's reasoning, a clash between the courts and the lords of commerce was inevitable.
Stone excoriated the legal profession for its failure to curb the avarice of the "giant economic forces which our industrial and financial world have created." Lawyers, he went on, were not supposed to be guardians of corporate power. He asked why "a bar which has done so much to develop and refine the technique of business organization, to provide skillfully devised methods for financing industry, which has guided a world-wide commercial expansion, has done relatively so little to remedy the evils of the investment market; so little to adapt the fiduciary principle of nineteenth-century equity to twentieth-century business practices; so little to improve the functioning of the administrative mechanisms which modern government sets up to prevent abuses; so little to make law more readily available as an instrument of justice to the common man."
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