ABSTRACT
It is a commonplace among historians of the United States Supreme Court that, when it is considered over the long term, constitutional doctrine has been shaped in important ways by non-doctrinal currents of political and social thought. The Marshall Court, for instance, was suffused with the nationalist vision that characterized the Chief Justice’s Federalist Party, of which he was a leading light. During his tenure, Marshall’s successor, Roger Taney, struck key Jacksonian themes. In both cases, the outside infl uences on doctrinal development within the Court refl ected the political and constitutional visions of the predominating political parties. But this need not be a matter of partisanship pure and simple. Perhaps the most famous instance of social thought suffusing the jurisprudence of the Court took place in the late nineteenth (and early twentieth) century, when the Court repeatedly sounded Darwinian themes, prompting Justice Holmes’s famous protest that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” (Lochner v. New York, 198 U.S. 45, 75 (1905) (J. Holmes, dissenting).
