Meese on The Constitutional Moment That Wasn't: 1912-1914 and the Meaning of the Sherman Act @NetworkLawRev @WMLawSchool

Alan J. Meese, William & Mary Law School, has published The Constitutional Moment that Wasn't: 1912-1914 and the Meaning of the Sherman Act in the Network Law Review (2022). Here is the abstract.

This short essay assesses and rejects Tim Wu’s contention that the period 1912-1914 was a Constitutional Moment that clarified the uncertain meaning of the Sherman Act. In the Curse of Bigness, Wu rejects the consumer-focused account of the Sherman Act articulated in Standard Oil v. United States, 221 U.S. 1 (1911) in favor of treating “Bigness” as an independent antitrust harm. Unlike other NeoBrandeisians, however, Wu does not claim that the original meaning of the Act dictates his preferred approach. Instead, he candidly concludes that determining the original meaning of the Sherman Act is an “impossible task.” Wu finds that meaning in the events of 1912-1914, namely the Presidential election of 1912 and subsequent passage of the Clayton Act and FTC Act in 1914. Taken together, Wu says, these events constituted “Antitrust’s Constitutional Moment.” Wu claims that the 1912 popular vote and 1914 legislation were a rejection of the Roosevelt-Debs support for national regulation of monopolies and thus “powerful democratic validation” for “the Wilson-Brandeis economic antitrust program.” This validation purportedly served as “democratic resolution of the uncertainty surrounding the purpose of the Sherman Act.” The classic Constitutional Moment occurred in 1937, when the Supreme Court acquiesced in repeated democratic responses to the Court’s protection for economic liberties. Wu offers a creative and thought-provoking interpretation of the events of 1912-1914. However, three distinct historical facts deprive these events of the sort of Constitutional status Wu proposes. First, President and candidate Taft rejected “anti-Bigness,” embracing Standard Oil’s consumer-focused Rule of Reason and safe harbor for reasonable conduct, i.e., normal industrial methods. Taft believed that “large aggregations of capital” were sometimes necessary to reduce production costs. Banning unreasonable conduct, he said, would prevent large firms from excluding their rivals and ensure low prices that shared efficiencies with the public. Presumably Taft’s voters — who supplied numerically decisive support for the popular majority Wu invokes — rejected anti-Bigness in favor of the consumer-focused Rule of Reason, depriving any Wilson-Brandeis approach of “democratic validation” at the polls. Second, as some have observed, Wilson did not mimic Brandeis’s anti-Bigness views. While campaigning, Wilson opined that “[t]he development of business upon a great scale, upon a great scale of co-operation, is inevitable, and, let me add, is probably desirable.” Wilson declared himself “not jealous of any process of growth, no matter how huge the result, provided the result was indeed obtained by . . . the processes of efficiency, of economy, of intelligence, and of invention.” These and similar statements rejected anti-Bigness and could not support any wholesale “democratic validation” of Brandeis’s views. Third, the Supreme Court did not acquiesce in any purported rejection of Standard Oil’s consumer-focused Rule of Reason. During the 1920s, the Court read Section 5 of the FTC Act narrowly and not as “stronger” than the Sherman Act, as Wu contends. The Court opined that “[i]f real competition is to continue, the right of the individual to exercise reasonable discretion in respect of his own business methods must be preserved.” The Court also held that Section 5 did not “interfere with ordinary business methods.” Thus, the Court assimilated Section 5 into Standard Oil’s Rule of Reason, with its safe harbor for “normal” and “ordinary” conduct, and not vice versa. Four years later the Court, per Chief Justice Taft, reiterated that Standard Oil had properly construed the Sherman Act. The Court’s post-1914 Sherman Act jurisprudence showed no sign of any legal change, constitutional or otherwise. Wu commendably concedes that the original meaning of the Sherman Act may not support his NeoBrandeisian vision. However, the Constitutional Moment he proposes did not occur. Proponents of a NeoBrandeisian Sherman Act must look elsewhere for legal authority to implement their vision.

Download the essay from SSRN at the link.