Progressive Constitutional Thought
PROGRESSIVE CONSTITUTIONAL THOUGHT
During the Progressive era, roughly from 1900 to 1920, the Constitution and the supreme court came in for considerable criticism on the part of historians, political theorists, statesmen, intellectuals, and journalists. The criticisms involved five issues: the origins of the Constitution's authority; claims that the Constitution, and the system of government it supported, were antiquated and needed to be modified in light of developments in modern science; protests that the Supreme Court functioned as an instrument of business interests; demands that the Constitution be reinterpreted to allow for federal regulation of industry; and similar demands that it become the agency of social reform.
Prior to the Progressive era the Constitution's authority rested on the assumption that it was a neutral document capable of rendering objective judgments based on either transcendent religious principles or secular doctrines like natural law. The first challenge to that assumption came from j. allen smith'sThe Spirit of American Government(1907), in which the Constitution was alleged to be a "reactionary" document designed to thwart the democratic principles of the declaration of independence by means of checks and balances and judicial review of legislative actions of popular majorities. But the most thorough critique of the Constitution's presumed disinterested authority fell like a blockbuster with the publication of charles a. beard'sAn Economic Interpretation of the Constitution (1913). Here readers discovered that the movement toward ratification of the constitution in 1787–1789 was led by merchants, manufacturers, creditors, and land speculators whose primary concern was to protect their own interests from what james madison called "over-bearing factions." the federalist's authors, Beard was aware, hardly concealed the fact that they regarded protection of property as the essence of liberty. But Beard's exposure of the economic motives of the Framers did much to demystify the moral character of the Constitution by disclosing the "interests" behind it.
While the historian Beard tried to unmask the sacred image of the Constitution, political theorists tried to reestablish it on a more scientific foundation. In The Process of Government (1908) Arthur Bentley suggested that the scholar must penetrate beyond the formal structure of the Constitution to appreciate the forces and pressures that act upon it through interest group demands. But the dynamic of amoral interest politics was precisely what troubled woodrow wilson and other Progressive idealists. First in Congressional Government (1884), then in Constitutional Government in the United States (1908), and finally in a series of campaign speeches published as The New Freedom (1912), Wilson indicted the Constitution for weakening the executive branch of government, allowing interests and power to prevail in the legislature's standing committees, accepting as inevitable factional antagonisms detrimental to the public good, and upholding the letter of the law rather than the life of the state. Criticizing The Federalist for bequeathing a static, mechanist concept of government, Wilson wanted a Constitution "accountable to Darwin, not to Newton," a Constitution as "a living organism" capable of growth and adaption, one that would coordinate the branches of government so that liberty could be preserved not on the basis of diversity—Madison's premise—but of unity forged by presidential leadership.
Critical of the Constitution, Progressives also became disillusioned with a Supreme Court as an obstacle in the path of social reform. theodore roosevelt exploded in anger when the Court invalidated state legislation involving child labor, tenement house reform, and other goals of progressivism. Yet, curiously, Progressives disagreed whether the Court had a right to do so. In The Supreme Court and the Constitution (1912), Beard argued that the right of judicial review was the clear intent of The Federalist. In Our Judicial Oligarchy (1912) Gilbert E. Roe expounded the opposing case, arguing that the courts had usurped authority in reviewing legislative acts. While both authors scorned judges disposed to preserving property rights at the cost of social justice, they continued to differ as to whether the Supreme Court could hold unconstitutional laws void or whether it should defer to the legislative process and exercise what the followers of oliver wendell holmes called "judicial restraint."
Progressives were far more unified in advocating regulation. All the writers associated with the liberal New Republic—herbert croly, Walter Weyl, Walter Lippmann, John Dewey, and louis d. brandeis—wanted to see corporate enterprise subordinated to the public good by means of industrial commissions, surveillance of trusts and monopolies, banking and railroad legislation, and the like. All also agreed that standing in the way of federal regulatory policies was a debilitating Jeffersonian heritage that made private rights anterior to public responsibilities, a destructive individualism that frustrated the ideals of political authority and civic duty. "Only by violating the spirit of the Constitution," Lippmann boldly declared, "have we been able to preserve the letter of it." Many of the Progressives were Hamiltonian nationalists convinced that both the Constitution and the Republic could be preserved from the corruptions of business interests only by augmenting the authority of an efficient and enlightened state. Many were also pragmatists who believed that the Constitution should be interpreted not from within but from without, not in terms of its inherent logic or precedent but in light of its consequences as society experiences the Court's rulings.
Progressives succeeded in realizing a number of reforms through the amending process, specifically the income tax, women's suffrage, and the direct election of senators. As with the recall, and referendum in state governments, and direct primary elections in national politics, the constitutional amendments aimed to allow people to participate more directly in the decisions affecting their lives. Whereas The Federalist 's authors believed that liberty could best be preserved by distancing the people from the immediate operations of government, the Progressives saw no conflict between republican liberty and participatory democracy.
John Patrick Diggins
Rostow, Eugene V. 1970 The Realist Tradition in Law. Pages 203–218 in Arthur M. Schlesinger, Jr., and Morton White, eds., Paths of American Thought. Boston: Beacon Press.