Chapter Six (Agabin)

American Culture, Constitutionalism and the Common Law

America as a Business Civilization

Samuel Huntington
o Civilization and culture both refer to the overall way of life of a
people. They involve the values, norms, institutions, and modes
of thinking to which successive generations in a given society have
attached primary importance.
o Civilization is a culture writ large.
Immanuel Wallerstein
o Civilization is a particular concatenation of worldview, customs,
structures and culture (both material and high culture) which forms
some kind of historical whole and which coexists (if not always
simultaneously) with other varieties of this phenomenon.
United States as a Business Civilization
o Its values, ideals, and even its higher intellectual qualities, including
juristic thought, revolve around the elements of the business
system, like trade, commerce, finance, professions, and similar
economic activity.
o It is characterized by:
1. Private property;
2. Contract and freedom of contract;
3. Industrialism, including the factory, the machine, mass
productions, the city, and the integration of the labor class;
4. Business, including the corporation, credit structure, investment
banking and marketing;
5. Profit motive; and
6. Individualism, including freedom to choose any business or
profession without social interference, free competition, and
freedom to keep any advantages acquired.
o Four main periods of historical development:
1. Pre-industrial or agricultural period, prior to 1840;
2. Corporate industrial period, from 1840 to 1880;
3. Period of corporate monopoly, from 1880 to the first World War;
and
4. Period of corporate finance, from World War I to date.
American law is the most inspired by economic rather than political
referents. While continental civil law system is a product of political
referents (i.e., state sovereignty), the common law responds to economic
referents (i.e., economic interests).
James William Hurst
o In the early phases of industrialization, law in action reflected the
premise that it was common sense, and it was good, to use the law
to multiply the productive power of the economy. Uses of law

and disputes over uses of law are so woven into economic growth in
the Unites States that legal and economic history cannot be separated.
Edward Corwin
o The basic pillar of capitalism, the protection of established
property rights against interference by the state, is the basic
doctrine of American constitutional law.
The vitality of the American common law could be attributed in part to the
nature of American civilization.
o A business civilization, by nature, is creative, expansionist and
imperialist.
o The single overriding theme of American policy towards the Philippines
was to remake Filipino society into an image of the United
States (cultural imperialism and economic exploitation).
o The overarching value that underpins American constitutionalism is
liberty of the individual, an offshoot of the philosophy of
individualism which, when viewed from the perspective of American
culture, implies freedom of enterprise and industry.
Since law and culture intersect, the can be seen that the legal culture of
American civilization has shaped its constitutional development as well as
that of its common law, the law of the land.
Lawrence Tribe
o Values and commitments, if they do not obviously originate in
constitutional structure, or history, must find their location in some
other source deeply linked to our national experience.
o Example: the 5th and 14th Amendment Due Process Clauses, through
their own use of the phrase of due process of law, suggest the
possibility that legal analysis generally might reveal patterns of
emphasis, recurring recognitions of ordinary government action,
supplying norms for evaluating the propriety of legislation or other
official acts that are the subject of constitutional challenge.
o The common law served as an organizing field of reference for the
first decades of the twentieth.
o The development of the common law and the concept of
constitutionalism in the U.S. has been molded, to a certain extent,
by the ethos of the business civilization and the mutation of the
due process clause from a procedural guarantee to a substantive
right.

American Origins: The Birth of Judicial Constitutionalism

By the latter half of the 19th century, the industrial revolution in the United
States had enthroned with it the philosophy of individualism even in the
political arena.

Various economic forces, headed by the emerging corporate centurions,

fiercely struggled not only with each other but also with populist forces and
labor unions for a share of political power. Their hegemony spelled the
dominance of the economic doctrine of laissez fair which shaped political
thought at that time.
The delivery of the twin principles of substantive due process and
liberty of contract was introduced by the shock of the U.S. Supreme
Court ruling in Munn v. Illinois which, in the words of the dissent, was
subversive of the rights of private property. According to Corwin, the
American Bar Association was organized right after the decision in that
case was handed down, and the association soon became a sort of juristic
sewing circle for mutual education in the gospel of laissez faire.
It was primarily the cream of the ABA which was responsible for the writing of
laizzes faire into the American Constitution. Its members constituted the
battery of retainers for the big corporate combines of the time. It was a
natural consequence of the fact that the ABAs membership consisted of the
better-educated lawyers, and generally the more successful, who were thus
called upon to represent the big corporations in the courts. They clung to the
juristic version of laissez faire to justify their success.
The judiciary asserted its leadership over political thought, and indulges in
judicial legislation.
Thomas Cooley
o Regarded as the most influential writer on the American Constitution in
the 19th century, which explains why his Constitutional Limitations
became the conservative Bible.
o His conclusions embodied his deeply-held philosophy of limited state
power, which contributed greatly to the shift of emphasis from
personal to property rights.
Justice Field
o Was the outstanding spokesman of laissez faire in the Supreme Court
from 1870 to 1880.
o His dissenting opinion in state regulation cases were first adopted by
the state courts before they won over the majority of the federal
tribunal.
Christopher Tiedeman
o Wrote Limitations of Police Power which defended the conservative
classes, who were the torch-bearers of the business civilization of
America.
In the ensuing battle between state and corporation the courts delivered the
coup de grace against the former.

How the business civilization wrote laissez faire into the American
Constitution

The constitutional revolution in America began with the Slaughter House

cases, where the U.S. Supreme Court divided 5-4 over a Louisiana stature
granting exclusive rights to a corporation with respect to the slaughter of
animals. It was the ambiguous phrase due process of law which suggested
the possibility that, in legal analysis, would supply norms for evaluating the
propriety of legislation that is the subject of constitutional challenge. The
due process argument lost out by one vote, having been invoked for the
first time, it was unexpected that it should win over to its cause four out of
nine justices.
Wynehamer v. New York set aside a legislative prohibition against the sale
of liquor as violative of due process. The Court of Appeals, New Yorks highest
tribunal, rules that there are some absolute private rights beyond the
majorities reach, and among these the Constitution places the right of
property.
Due process of law does not mean the very act of legislation which
deprives the citizen of his rights and property, since such legislation would be
unjust, unreasonable and wrong.
Where property rights are acquired by a citizen under an existing
law, no branch of government can take them away except the courts
of justice which, in the course of administering and interpreting such
existing law, finds that such property rights were held contrary to such
existing law.
Yick Wo v. Hopkins ruled that the fundamental rights to life, liberty and
the pursuit of happiness, considered as individual possessions, are secured
by those maxims of constitutional law, which was infused into what was
merely a procedural safeguard.
The opening wedge to judicial conservatism came in the case of Sta.
Clara County v. Southern P.R.R. Co. where the Supreme Court ruled that a
railroad corporation was a person within the meaning of the Fourteenth
Amendment and is entitled to the guarantees enjoyed by natural persons
under the Constitution.
From this premise, the corporation could invoke the due process clause. In M.
& St. P. Ry. Co. v. Minnesota, the Court stepped into defend the right of
the company, like a natural person, to a judicial investigation, by due
process of law, under the form and with the machinery provided by the
wisdom of the successive ages.
In Allgeyer v. Louisiana, the same Court held unconstitutional a Louisiana
state prohibiting any person from signing any insurance policy in any
company which had not been organized in accordance with the laws of that
state.
The Court evolved the doctrine of liberty of contract; it declared that the
citizens liberty mentioned in the Fourteenth Amendment refers not only to
his freedom from personal restraint, but it also included the right to pursue

any livelihood, and for the purpose to enter into all the contracts which may
be proper and necessary to his carrying out that livelihood.
These doctrines, born out of a business civilization, were transplanted into a
country most of whose people were characterized by the Americans as living
in a semi-civilized state. At that time, the term civilization was defined as
the opposite of barbarism.