コモン・ロー，憲法，自由(6)―19世紀後期アメリカ法理論とLochner判決―

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This article examines the common law backgrounds of late nineteenth and early twentieth century American constitutional theory. At that time, the Supreme Court of the United States declared many socioeconomic regulations, including labor laws, to be void under the Fourteenth Amendment to the Constitution. According to conventional wisdom, conservative justices hated progressive social reform and preferred big business. For those reasons, it is said, they held the laws unconstitutional. 　However, this paper proposes another explanation. Constitutional theory at that time was based on the common law tradition. Justices in the Lochner era tended to defend common law rights and common law principles in their constitutional interpretations. They considered constitutional rights protected by the Constitution to have been derived from the common law tradition. 　This installment of this article will examine the decline of common law-based constitutionalism in the twentieth century. In the Lochner era, justices and jurists identified common law rights with constitutional rights, believing that constitutional principles and cases were derived from those of the common law. However, progressive lawyers began attacking this approach. This installment reviews the ideas of two such jurists, Oliver Wendell Holmes, Jr. and Ernst Freund. A later chapter will discuss Roscoe Pound. Today, Holmes is thought of as a champion of progressive legal thought. However, he was at first an old-style lawyer who identified common law with national custom. His theory was very similar to that of James C. Carter, a conservative jurist who espoused historical jurisprudence. Holmes thought law was neutral and apolitical, something that developed out of custom. However, from the 1890s forward, Holmes championed a different view. According to his new theory, law was a result of class conflict. Judges were policy makers, and they decided cases according to their class-preferences. If common law was just policy made by judges, it had no legitimacy. In a democracy, legislators are supposed to make policy based on popular will. Holmes deprived the common law of its legitimacy as customary law. Delegitimizing the common law resulted in the collapse of common law constitutionalism. Freund, now remembered as a seminal figure of administrative law in America, also criticized the common law and common law constitutionalism. He considered old- fashioned common law to be obsolete and unable to properly address social problems in the modern industrialized society. In its place, he argued, American society needed legislation enacted with the support of experts and specialists. Freund also critized common law-based constitutionalism as against the popular will and modern social conditions.