One Nation or One Market? Liberals, Conservatives, and the Misunderstanding of H.P. Hood & Sons V. Dumond

Abstract

Forty years ago, in a dormant Commerce Clause dispute over dairy regulation, Justice Robert Jackson wrote what many regard as the strongest post-Lochner ode to laissez faire economics in the Court's modern jurisprudence. Yet this standard reading of the majority opinion in H.P. Hood & Sons v. DuMond presents certain puzzles: Why would an icon of Roosevelt's New Deal write an anti-regulation manifesto, as some of his New Deal contemporaries on the Court alleged? And why would recent conservative justices echo these liberals' attacks on this supposed laissez faire streak in dormant Commerce Clause anti-discrimination doctrine? Inspired by these puzzles and recent developments under the Roberts court, and relying on historical materials including Jackson's own papers, Professor Konar-Steenberg argues that Hood has been misunderstood and misinterpreted for four decades. Jackson's liberal contemporaries misunderstood Hood to revive Lochner-era economic substantive due process under a new constitutional guise. More recently, conservative jurists have misinterpreted Hood as a laissez faire precedent in order to discredit the opinion because it hinders their project of revitalized state power.

Keywords: Hood, Jackson, Dormant, Interstate, Federalism, Market, Commerce, Laissez Faire, New Deal, Rehnquist