Publication Date

Spring 2021

Advisor(s) - Committee Chair

Kate Brown (Director), David Lee, and Alexander Olson

Degree Program

Department of History

Degree Type

Master of Arts


Legal histories of the Gilded Age and Progressive Era tend to focus inordinately on economic regulation within a doctrinal framework in which private rights, equal protection, and “substantive” due process guided judicial decision-making. Consequently, the overarching economic context in prevailing legal historiography obscures an important yet oft-overlooked development in the linkage between public rights, natural resource trusteeship, and the early-twentieth-century environmental conservation movement. This development is inextricably tied to the evolution of water law in the late nineteenth century and the expansion of the American commercial republic. A normative understanding of public water rights during this period is confined to an economic framework in which water functioned either as a highway for commerce or as a source of power.

This article argues that the 1908 Supreme Court decision in Hudson County Water Co. v. McCarter, in a departure from economic instrumentalism, inaugurated a novel reconceptualization of water as a natural resource in and of itself. The legal principles on which Hudson County rested—the sanctity of the broad interests and welfare of the people with regard to public waters—had been firmly established by 1908. However, the public interest and public rights in water were inherently economic; no doctrinal or legal interpretations of water prior to Hudson County recognized public waters in broad and unconditional language that transcended economic pretexts. Furthermore, Hudson County signifies the confluence of three distinct historical currents: the development of a robust judicial public trust doctrine, the emergence of environmental conservation as a social and political imperative, and the beginning of a progressive shift in American constitutional jurisprudence. Each of these three strands was essential to the legal transcendence of water as a natural resource during the Progressive Era.

This reinterpretation of Hudson County places it within existing interpretive models of legal history as more of a paradigmatic signpost than any sort of abrupt intervention. Hudson County thus stands as a progressive antecedent to the later era of legal realism and the much later formulation of modern environmental law.


Legal | Natural Resources and Conservation | Public Law and Legal Theory | United States History