While obviously not isolated in the way that, say Alaska was, the Western states joining in that period certainly feel to be at least somewhat seperated from both the more Eastern/Southern states, as well as those on the Pacific coast which were several decades established. And while perhaps it is in part more due to a pop culture perception than truth, it certainly seems that they would evidence a culture presumably divorced to a degree from those older, more established states, one which, given the history, and more importantly self-image of the rugged individualist, I would expect to influence legal philosophies in the region. So essentially, do we see legal developments coming out of the courts and lawyers in those states which we can tie to the unique history of those states?
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Your question begs for a broader study, which I hope someone can offer. But there can be value in looking at individual examples as at least potentially illustrative of a broader trend, and to that end, I’m going to tell you about the man who was the federal district judge in Montana from 1912- 1934, Judge George Bourquin. Up until 1924, he was the only federal judge for Montana. I’ll offer some of his biography and the thoughts about the way this impacted the law of the West, and indeed, the rest of the country as well.
What little is written about Bourquin focuses on his amazing, courageous opinions during the first ‘Red Scare.’ This gets Bourquin painted as a great lover and defender of the Constitution, even when it compelled him to protect deeply unpopular minorities at real personal peril. But my take is that when you look at his whole career, it’s not clear he cared so much about the Constitution, or for that matter, even basic legal procedure. He cared about a deeply Western set of ideals and would bend whatever needed bending in order for those ideals to prevail in a legal setting. Because he was in a highly influential position, it impacted Montana heavily, and during Prohibition it impacted a big swath of the country.
(I’d like to note that I’m relying heavily on work done by others when I discuss the Red Scare era of Bourquin’s work. But I did independent work into his biography; most importantly, the analysis of his Prohibition era work is my own, and so far as I’m aware hadn’t been discussed elsewhere.)
Bourquin is in a lot ways a quintessential western character: a first generation American from a large family, from very meager beginnings; his father was a blacksmith. He was born in Wilkes Barre, PA, in the middle of the Civil War—1863-- last of 9 kids (possibly 9 of 10, sources are unclear). He set out for silver mines in Colorado when he turned 18. He held all kinds of physical jobs (miner, smelterman, cowboy, etc.) before migrating to Butte, MT, to work mines as well. He taught himself the law and got admitted to practice for the first time at 31 years old. Physically, in his older age, a Seattle paper (he was assigned there briefly to handle Prohibition cases—more in a bit) described him as “leonine,” rugged, “erect and square shouldered,” and was allegedly “one of the most striking figures to be seen on the Seattle streets.”
He was gutsy and tough as hell, by any account. He had an independent, ornery streak ‘a mile wide’, as they say. “This court may be wrong , sir, but never in doubt,” he apparently quipped from the bench (as reported by Burton Wheeler, a close colleague.) He was deeply self-isolating. In a formal tribute to him upon his death in 1958, Bourquin was described glumly as “a lonely man, enjoying solitude as few do. He had no intimates.” He apparently always insisted that wait staff at restaurants turn up all the other chairs near him so that there was no risk anyone would feel welcome to approach him in public. He cared little or nothing for convention—at all.
So Bourquin was a classic western ‘type’: the rugged self-made isolationist who believed everyone deserved a fair shake, cantankerous, mysterious, a cowboy type. How does this play out in terms of shaping the law? Montana was a single federal district, but it had real economic importance for its copper mining. Federal law was an important topic for obvious reasons, and at the level where practical outcomes are determined—the trial level—there was really only the federal district judge to answer to; if you didn’t agree, you might get some traction on appeal, you might not. This deeply Western individual character had an outsized role in controlling law and policy in the area.
First: please see this comment for some discussion of how Bourquin handled matters before him during a terrible period in American history, the first great Red Scare, which hit fever pitch during his tenure on the bench. But to elaborate: laws were passed around the time of WWI which radically restricted free speech and were broadly aimed at suppressing, in one fell swoop, perceived “Red” communist labor activity (which was a huge deal in Montana, where the IWW was actively organizing in copper mines), pro-German sentiment in large Germanic communities, and recent immigrants generally. People were serious about this. The federal courts, under the auspices of the Espionage Act of 1917, were getting floods of people attempting to turn their neighbors in for sedition and treason.
George Bourquin believed one thing quite concretely: freedom of thought, speech, and assembly were quintessential American values. Any government intrusion against unpopular minorities was intolerable. He put himself pretty damn directly in front of a figurative mob and told everyone to back off. He demanded that the US Attorney bring a trial case so that he could, in his mind, settle the question. He refused to interpret that Espionage Act as prohibiting slandering the United States (though that might well have been disingenuous), saying that “The genius of democracy and the spirit of our people and times seem yet unable to avoid greater evils than benefits from laws to that end.” But this case, U.S. v. Ves Hall, was just one of a slew of cases in this era during which he would repeatedly refuse to cave in to what he perceived as mob mentality against those with unpopular beliefs.