Alton Parker


The Alternate Constitution of Alton Parker, Candidate for U.S. President and ABA President

By Robert Emery, Reference Librarian, Schaffer Law Library

Alton Parker
Alton Parker (1852-1926), in Albany in 1903.

Alton B. Parker, class of 1873, Democratic candidate for president in 1904, president of the American Bar Association in 1907, chief judge of New York’s Court of Appeals 1897-1904, was one of the most eminent graduates of Albany Law School.  He was also the exponent of views of the U. S. constitution and of the common law, now archaic, certainly in eclipse, and very different from those which generally obtain today.  They were views typical of nineteenth-century liberalism, sanctified by Jefferson, Jackson, and Cleveland, views most prominently espoused by what we would call the conservative “Bourbon” Democrats that largely dominated the Democratic Party in the later 1800s.

(Just to get our terminology straight, remember that in the 1800s a “liberal,” as personified by Grover Cleveland in the United States or by W. E. Gladstone in England, stood for a strictly limited national government with carefully circumscribed powers of taxation, maximum local autonomy, and free trade unfettered by government regulation.  In other words, a nineteenth-century “liberal” was very similar to what we now call a “libertarian.”  The Bourbon Democrats, as led by Cleveland, were foremost exponents of this liberalism and stood against protective tariffs, most government regulation of industry, imperialism, and a federal income tax, and for a gold-backed currency, states rights, and free trade.)

Strict Construction

Judge Parker believed that “the theory of the constitutional form of government which the fathers created was that the National Constitution was created by the people and can be changed only by the people; that within that instrument must be found all the power that may be exercised by it, until and unless the people shall grant to that Government additional powers.”  The people created the constitution , and they alone could change it by amendment; both executive and legislature were bound strictly by its terms; the judiciary had the duty to declare statutes invalid when “the legislative body has attempted to exercise a power denied to it by the people through their constitution” (ACG 10, 11). The federal constitution was both a declaration of the people’s rights against federal invasion, and a reservation of powers to the states. (19 Yale 402).  Strict constitutional construction to protect the rights of the states and the people was the hallmark of Parker’s constitutionalism. 

Parker’s views partook of an “originalism” (to use the academic cant phrase) similar to that held by certain members of the Supreme Court today.  “ When we take up for construction the Constitutions of the time, whether Federal or State, we must have in mind that, then as now, there was a canon of construction requiring that written documents must be construed in the light of the facts and circumstances surrounding their making” (17 Yale 3-4). Constitutional provisions had to be construed not only strictly, but also strictly in terms of their historical meaning when adopted. These views led to interpretations of constitutional provisions that few lawyers would accept today.  One example will suffice.  Construed strictly, in Parker’s view, the purpose of the Fourteenth Amendment was specifically to protect African-American citizens against discriminatory state action.   It was not intended “to deprive the States of any more power than was actually required by the amendment” (11 Am. Law. 389).  The amendment had a narrow, focused intent; any attempt to broaden its application beyond that intent should be subject to judicial invalidation.


Responsibility of the Judiciary

Strict construction placed a heavy burden on the judiciary. The courts had to be vigilant in “declaring that certain statutes offend against the people’s Constitution,” despite demagogic charges that they were grasping for power. Similarly, they had to be ready to combat executive overreaching in times of ostensible emergency (Parker was thinking of President Teddy Roosevelt’s threat to militarize the coal industry during widespread labor unrest in 1902) (ACG 11, 23 Yale 632). The object of constitutional government was not efficiency in itself; rather, it was “the greatest good to the greatest number,” and inefficiency on the state and local level was a small price to pay for the preservation of the people’s fundamental rights (19 Yale 404-5). 


Parker’s Common Law

Nowadays lawyers are universally “analytical jurists”: following such luminaries as Austin, Holmes, and Cardozo, they believe that judges make the common law by deciding new cases, reasoning from preexisting precedent to reach new principles in an evolutionary fashion.  This view was not generally held in the nineteenth century, and even in the early twentieth conservative jurists like Parker rejected it.  For lawyers like Parker, the common law was the legal embodiment of social custom, drawn upon by judges to decide cases: judges did not make the law; their decisions “illustrated” and declared the law; they did not create it.*  

In the constitutional context, Parker noted that “while the Constitution contains no general grant of legislative power, but instead the grant of enumerated powers, it does grant to the Supreme Court [and the lower federal courts]… the entire judicial power of the Federal Government.”  Drawing upon the common law, which can “justly solve every problem in civil life,” the federal courts could have checked abuses in interstate commerce, without the necessity for federal statutes of questionable constitutionality and arbitrary executive action at the expense of the reserved powers of the states (17 Yale 5-6, 18).   This was Swift v. Tyson writ large: an activist federal judiciary applying a national common law to exercise a jurisdiction that a strictly construed constitution denied the president and congress.


Practical Reform

Judge Parker’s views of the constitution and the common law were certainly conservative, but they were not reactionary. Just as President Cleveland approved the creation of an Interstate Commerce Commission in 1887 to regulate abuses in the railroad industry, Chief Judge Parker’s opinion in People v. Lochner (177 N.Y. 145 (1904)), upholding the constitutionality of a statute regulating hours of labor in the baking industry, showed a willingness to recognize innovative exercise of a state’s police power to correct economic evils. (In contrast, the U.S. Supreme Court’s reversal of Lochner, 198 U.S. 45, showed true reaction.)  In Parker’s eyes, a strictly construed federal constitution allowed states their proper sphere in correcting economic problems through exercise of the police power, while a federal judiciary, drawing on the national common law, could correct abuses of state action affecting the national interest.

In much the same way, Judge Parker was a strong supporter of the early work of the National Conference of Commissioners on Uniform State Laws. He believed that uniform laws, proposed by the Conference and adopted by the states, would be an effective means of addressing pressing social and economic problems, without the violation of local and state autonomy that overreaching federal action would represent. “Let us strive to promote unity in diversity—united in all that touches in like manner the internal affairs of the communities separated by state lines—diversity in those particulars which are peculiar to each commonwealth” (19 Yale 408).

Judge Parker’s views on constitutional interpretation and the common law are an artifact of nineteenth century liberalism—in the Bourbon Democratic sense. The modern Supreme Court, in even its most conservative moods, will never readopt them.  It is interesting to speculate, however, how different the United States would have been if Parker’s views had prevailed.

*For a good comparison of these two views of the common law, see Eugene Wambaugh, The Study of Cases 75-79 (1894). The old, traditional view is by no means irrational; if you ever get a chance, take a look at James Coolidge Carter, Law: its Origin, Growth, and Function (1907).


Sources of Judge Parker’s Writings

ACG: American Constitutional Government (1922), reprinted in 62 Cong. Rec. 6794, and 6 Const. Rev. 79 17 Yale L. J. 1:  “The Common Law Jurisdiction of the United States Courts” (1907)

19 Id. 401: “Uniform State Laws” (1910)                              

23 Id. 631: “The Citizen and the Constitution” (1914)

11 Am. Law. 333, 388, 431: “Due Process of Law” (1903)