During the century-and-a-half slumber of social contract theory the idea of universal adult suffrage became commonplace. It had long been assumed that formal political equality would more than suffice to defend the less advantaged against class legislation (although the worry shared by Ireton and Mill, that majority rule would enable class legislation favoring the less advantaged, has never disappeared). Rawls argued that a well-ordered constitutional democracy must guarantee the fair value of the equal political liberties (and those liberties alone: The others come within the difference principle in its special form). Rawls complained that this position seemed “never to have been taken seriously.” Rawls suggested a number of devices to secure fair value: promotion devices, such as subsidies of political parties and public debate; insulation devices, such as limits upon campaign contributions and expenditures; and anti-accumulation devices, such as inheritance taxes and public ownership of the means of production. Why, though, would parties in the original position insist on the fair-value guarantee? One argument extends the argument for the priority of the whole family of basic liberties, with special emphasis on stability “for the right reasons” and the shared sense of justice essential to it.

Hume’s critique and English revulsion at the French Revolution dampened interest in social contract theorizing. The rise of utilitarianism was another factor. The cause of a universal franchise was taken up by Jeremy Bentham, a founding utilitarian who was dismissive of the social contract idea as an “anarchical fallacy.” The Chartists, who demanded universal manhood suffrage, held up both Bentham and Tom Paine as heroes. The Reform Act of 1832 expanded the power of the propertied in the burgeoning English manufacturing centers. The reformed Parliament passed the Poor Law Amendment Act of 1834, which introduced the hated workhouse system. The Chartists’ million-plus petition for universal manhood suffrage was finally received by Parliament, but ignored. John Stuart Mill, another utilitarian, dismissed Locke’s theory as a fiction but found a truth in the social-contract idea: a principle of reciprocity. Reciprocity requires government to benefit all. Mill advocated votes for women and an expanded electorate but retention of the property qualification until workers could be educated sufficiently not to vote for unwise laws favoring their class. As a safeguard, he proposed plural votes for the educated. On the European continent the social contract tradition succumbed to the idealism of Hegel and the materialism of Marx.

FDR responded to the Court’s 1935-36 decions with a plan to “pack” the Court by expanding its membership. The chapter recounts the development and eventual rejection of the Court-packing plan. As the plan was under consideration, several developments contributed to its failure: Overruling earlier decisions, the Court upheld a Washington minimum wage statute, Congress adopted a more generous pension program for Supreme Court justices, and Justice Willis Van Devanter announced his retirement. Meanwhile the Court continued to hand down relatively routine decisions that showed that administration’s attacks were not yet affecting its jurisprudence.

This chapter examines the Court’s “new approach and philosophy” in decisions upholding state power to regulate local economic activity against challenges based upon due process and the dormant commerce ckause.

This chapter surveys the legal history of the term "due process of law," from Magna Carta, the Statutes of Edward III, and the Petition of Right to the writings of William Blackstone and the opinions of antebellum state-level court cases. It argues that there was no concept of "substantive due process" in the antebellum period. It refutes arguments that due process prohibited class legislation, limited states to reasonable exercises of the police powers, or underwent a change in meaning as a result of abolitionist constitutional thinkers.