On the Formation of the American Corporate State - The Journal ...

SKOURAS ON THE FORMATION OF THE AMERICAN CORPORATE STATE:THE FULLER SUPREME COURT, 1888-1910to why this was the case--- given that Europe had more embedded conservativeinstitutions than the New World--- might be this: the fragmentation ofAmerican society via racial, ethnic, religion, language, unbounded immigration,and flood of entering immigrants from Eastern and Southern Europeancountries that were mostly of peasant stock, uneducated, poverty stricken, etc.served as a hedge to unifying labor and defusing the need to establish anAmerican Labor Party that could effectively challenge the Bigness of the newCorporation at the dawn of the Industrial Era. “In Europe industrializationuprooted the peasants from the land and brought them to the cities, where theybecame revolutionary workers. But the uprooted European peasants whosettled in American cities remained conservative. In America the farmers whostayed on the land played the role of European workers as a major forcechallenging industrial capitalism.” 61 That is, the continuous flow of immigrantsat the dawn of industrialization was able to fragment labor and prevent or bluntthe radicalization of the worker. The corporations were able to take advantageof the situation, in further dividing and fragmenting the American populace; sothat Labor lacked common interest and ability to coordinate and react to theconsolidation of corporate power.Ely’s revisionist defense seems to be that if society at large could not stomachlabor unions, could the Court do no other? Like Ackerman, Ely accepts theproposition that the Court was a part of a culture that valued property above allelse and could do no other. However, unlike Ackerman, Ely seems to recognizethat the Court did start to feel some unease with its property over laborprinciples.What are the limitations of Ely’s approach and the Lockean School of thought?This School is wedded to the idea that because the Fuller Court viewedproperty as a precondition to liberty, it was justified in making that equation.That is, Ely and others of the classical liberal school assume Fuller’s taming ofthe Due Process Clause to comport with Lockean philosophy was justified.They share a philosophy of limited government, individualism, free markets,and strong protection of property. Natural law may have served a function inpre-Copernicun times or in Medieval theology, but its continued use could onlyserve establishment and property interests. The Fuller Court was not unawarethat the use of natural law was no longer free of controversy. And theProgressives aptly pegged the Fuller Court for what it was---a stalwart ofbusiness and an impediment to labor.61 MICHAEL PAUL ROGIN, THE INTELLECTUALS AND MCCARTHY at 187.(2011) J. JURIS 54