Fuller Court (1888–1910)

The Supreme Court under the leadership of Melville W. Fuller (1888–1910) decided more constitutional controversies than all previous Courts combined. From a contemporary perspective, however, the Fuller Court’s jurisprudence was flawed in a number of respects. For example, it decided Plessy v. Ferguson, which adopted ‘‘separate but equal’’ as an interpretation of the equal protection clause. In the field of civil liberties, it was not an aggressive champion of the noneconomic rights protected by the Constitution but instead a defender of property rights. Even so, the Fuller Court decided a number of significant civil liberties cases and laid much of the groundwork for contemporary constitutional doctrine. Twenty justices served during the Fuller Court, including justices nominated by presidents from Lincoln to Taft and such important figures as John Marshall Harlan I, David Brewer, and Oliver Wendell Holmes, Jr.

The Fuller Court was the first to use the theory of substantive due process to invalidate state legislation. In 1905, it decided the case that often provides the name for this entire period in Court history, Lochner v. New York. The Fuller Court’s substantive due process decisions were largely limited to economic rights, but these cases laid the fundamental-rights groundwork for much of the Court’s later civil liberties jurisprudence. Perhaps most importantly, the Fuller Court’s substantive due process jurisprudence established, despite great controversy, judicial enforcement of fundamental rights as part of the Supreme Court’s role. Many members of the Court believed that this included protection of unenumerated rights against government invasion. Commentators have traced the origins of modern Privacy decisions to the Fuller Court’s substantive due process jurisprudence.

At the same time as it was protecting unenumerated economic rights, however, the Fuller Court consistently rejected incorporation of the criminal procedural protections found in the Bill of Rights into the due process clause of the Fourteenth Amendment. The Fuller Court, in other words, resisted the various efforts of litigants to federalize state criminal procedure, often over dissents by the first Justice Harlan. It rejected incorporation of the guarantee against cruel and unusual punishment in O’Neil v. Vermont and In re Kemmler, the Confrontation Clause in West v. Louisiana, the right to a twelve-member jury in criminal cases in Maxwell v. Dow, and the privilege against self-incrimination in Twining v. New Jersey. But its legacy here is complicated. In Chicago, Burlington, and Quincy Railroad Co. v. Chicago, the Fuller Court held for the first time that a provision in the Bill of Rights applied to the states. That case involved, not surprisingly, property rights protected by the Takings Clause; indeed, this was just one of many significant Takings Clause cases during this period. In addition, Twining, decided in 1908, clarified the fundamental-rights analysis that would be applied in deciding whether to apply Bill of Rights safeguards to the states in future cases.

The Fuller Court did decide some important cases of first impression involving constitutional safeguards in federal criminal cases. Few such cases reached the Supreme Court before extension of its appellate jurisdiction in criminal cases in 1889 and 1891. In two cases, the Fuller Court was the first to address the constitutionality of immunity statutes in light of the Fifth Amendment privilege against self-incrimination, although it is worth noting that both involved business prosecutions. In Counselman v. Hitchcock, a unanimous Court held that the privilege against self-incrimination applies to grand jury witnesses and that immunity statutes must provide at least as much protection as the constitutional privilege. Counselman was not very clear, however. In its immediate aftermath, Congress adopted an immunity statute providing transactional immunity for compelled testimony in federal proceedings. In Brown v. Walker, a narrowly divided Court upheld this statute. But the Court has since held, most significantly in Kastigar v. United States, that the Fifth Amendment only requires use/derivative use immunity, the Kastigar majority concluding that the broad transactionalimmunity language in Counselman was merely dicta. The Fuller Court also applied the protection against unreasonable searches and seizures to corporations, while rejecting application of the privilege against self-incrimination to corporations in Hale v. Henkel. The Insular Cases held that constitutional guarantees did not apply in territories acquired in the Spanish-American War. Finally, in Weems v. United States, the Court inserted a proportionality standard into the protection against cruel and unusual punishment.

In religion cases, in Bradfield v. Roberts, the Court rejected a taxpayer’s Establishment Clause challenge to a contract between the District of Columbia and a Roman Catholic hospital, holding that institutions with secular purposes may receive governmental aid, as long as they are not pervasively sectarian. The Fuller Court’s most notable free-exercise cases, both decided in 1890, involved laws burdening the practice of plural marriage among members of the Church of Jesus Christ of Latter-day Saints. In Davis v. Beason, the Court upheld an Idaho territory law denying voting rights to members of the church, following the 1878 precedent Reynolds v. United States. A closely divided Court upheld a federal law abolishing the Utah church and expropriating its property in Late Corporation of the Church of Jesus Christ of Latterday Saints v. United States. In the latter case, involving property rights, Chief Justice Fuller and three other members of the Court dissented.

The Fuller Court decided two early speech cases, both against speech rights. In Turner v. Williams, the Court upheld the deportation of an English anarchist based on his political beliefs. In Patterson v. Colorado, in an opinion by Justice Holmes, the Court upheld a conviction for criminal contempt based on criticism of the state high court.

The Fuller Court’s greatest contribution to civil liberties jurisprudence arguably came in Ex Parte Young, which held that the Eleventh Amendment does not bar suits to enjoin state officials from violating the Constitution and federal law. The legal fiction created in this case has been used by litigants seeking to protect civil liberties and other rights in a great number of cases.

EMERY G. LEE, III

References and Further Reading

• Bernstein, David E., Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, Georgetown Law Review 92 (2003): 1:1–60.
• Currie, David P. The Constitution in the Supreme Court: The Second Century 1888–1986. Chicago: University of Chicago Press, 1990.
• Ely, Jr., James W. The Chief Justiceship of Melville W. Fuller, 1888–1910. Columbia: University of South Carolina Press, 1995.
• Fiss, Owen M. History of the Supreme Court of the United States, Volume 8: Troubled Beginnings of the Modern State, 1888–1910. New York: Macmillan, 1993.
• King, Willard L. Melville Weston Fuller: Chief Justice of the United States 1888–1910. Chicago: University of Chicago Press, 1967.
• Yarbrough, Tinsley E. Judicial Enigma: The First Justice Harlan. New York: Oxford University Press, 1995.

Cases and Statutes Cited

• Bradfield v. Roberts, 175 U.S. 291 (1899)
• Brown v. Walker, 161 U.S. 591 (1896)
• Chicago, Burlington, and Quincy R. Co. v. Chicago, 166 U.S. 226 (1897)
• Counselman v. Hitchcock, 142 U.S. 547 (1892), overruled by Kastigar v. United States, 406 U.S. 411 (1972)
• Davis v. Beason, 133 U.S. 333 (1890), overruled by Romer v. Evans, 517 U.S. 620 (1996)
• Ex Parte Young, 209 U.S. 123 (1908)
• Hale v. Henkel, 201 U.S. 43 (1906), overruled by Murphy v. Waterfront Commission, 378 U.S. 52 (1964)
• In re Kemmler, 136 U.S. 436 (1890)
• Kastigar v. United States 406 U.S. 411 (1972)
• Late Corp. of Church of Jesus Christ of Latter-day Saints, 136 U.S. 1 (1890)
• Lochner v. New York, 198 U.S. 45 (1905)
• Maxwell v. Dow, 176 U.S. 581 (1900), overruled by Williams v. Florida, 399 U.S. 78 (1970)
• O’Neil v. Vermont, 144 U.S. 323 (1892)
• Patterson v. Colorado 205 U.S. 454 (1907)
• Reynolds v. United States, 98 U.S. 145 (1878)
• Turner v. Williams 194 U.S. 279 (1904)
• Twining v. New Jersey, 211 U.S. 78 (1908), overruled by Malloy v. Hogan, 378 U.S. 1 (1964)
• Weems v. United States, 217 U.S. 349 (1910)
• West v. Louisiana, 194 U.S. 258 (1904), overruled by Pointer v. Texas, 380 U.S. 400 (1965)

See also Incorporation Doctrine; Mormons and Religious Liberty; Substantive Due Process; Waite Court; White Court