Justice Brewer and Substantive Due Process: A Conservative Court Revisited

From the heat of ideological battle which has accompanied the emergence of America into the status of a capitalistic society, late nineteenth century conservatives have emerged in many circles with a reputation for being selfish, profit-hungry individuals attempting to hide their rapacity under a cloak of pleasant platitudes and private charity. In addition to falling under this less-than-favorable shadow, those of this breed who presumably came to cluster about the Supreme Court of the United States have been attacked by liberals for subverting the Constitution of the United States into an instrument to serve the acquisitive interests of the capitalists by changing the intent of an addition to the Constitution meant primarily to serve higher human values: the "due process" clause of the fourteenth amendment. As the dust of battle begins to settle, it is perhaps well to take another look at this period and its men. Few men of the period serve this objective so well as Justice David Josiah Brewer-of patrician and Puritan stock, nephew of arch-conservative Stephen J. Field, Yale educated, frontier pioneer, and a leading conservative on what is often thought of as the most conservative Supreme Court in the history of the land.