TheSlaughter-HouseDissents and the Reconstruction of American Liberalism

Abstract

American liberalism has long been divided between early “classic” and modern forms, a transformation associated with the rise of the social welfare state and the New Deal. The long-running critique of Hartzian consensus theory has left intact that division, which is likewise expressed in literature on the Reconstruction Amendments. This article offers a new staged theory of American liberal development in the nineteenth century, accomplished through the prism of public law. Newly elaborating and theorizing the governing frameworks of the antebellum “well-regulated society” and reading judicial disagreement in theSlaughter-House Cases(1873, 83 U.S. 36) in terms of these institutional frameworks, I show how the dual liberty paradigm of the well-regulated society was rearranged in Bradley’s dissent. By elevating a conceptual split between the dissents of Field and Bradley and by tracing in Bradley’s dissent the reorganization of police powers jurisprudence, I illuminate the fashioning and rapid diffusion of modern rights individualism.