Working Paper No. 08-44:
The National Regulatory State in Progressive Political Theory and Twentieth-Century Constitutional Law
Date Posted: July 2008
Abstract (below) | Full text (most recent) on SSRN
This book chapter contributes to a conference hosted by the University of Dallas Department of Politics on modern America and the legacy of the Founding. It surveys how late nineteenth-century Progressive political and social-science theory percolated into early and mid-twentieth-century federal constitutional law. The chapter as written provides an introductory survey, intended to be accessible for graduate students studying American politics and government. It illustrates theoretical developments by showing how and to what extent they shaped structural constitutional law on the Commerce Clause and separation of powers.
In both structural constitutionalism and constitutional interpretation, constitutional law has gradually shifted over a century to accommodate Progressives’ critique of the Founders’ constitutional order. This shift occurred in several waves, the first of which was theoretical. Between roughly 1880 and 1920, leading Progressive political scientists developed a broad critique of the pre-1900 constitutional order organized around a Hegelian conception of a “living Constitution.” This critique then took hold in American practice largely, though not completely, between roughly 1920 and 1950, as Progressive political theorists’ students took leading teaching positions in the legal and political-science academies, leading offices in President Franklin Roosevelt’s administration, and seats on the U.S. Supreme Court. By the close of the New Deal, leading academics and judges assumed, contrary to pre-1900 constitutional law, that Congress had general regulatory powers over the American economy, and that Congress could transfer those powers to centralized agencies largely free from direct legal supervision by the President or the courts.
At the same time, the Progressives’ theoretical critique did not entirely displace the pre-1900 constitutional tradition. The New Deal Court did not cite “the living Constitution” as an independent source of legal meaning that by itself required the Court to break with its pre-1900 precedent. Instead, the Supreme Court continued to pay respect to the forms of pre-1900 structural constitutional law, but concluded that the Progressives’ and New Dealers’ innovations fit within the details of those forms and Supreme Court precedent. The Court did so in part for institutional reasons, because the judiciary’s power comes in large part from the Constitution’s status as a source of law and the judiciary’s reputation for following precedent. Separately, however, and in marked contrast to later Courts, leading Progressive political theorists and the New Deal Court were ambivalent about the possibility that the living Constitution might serve as an explicit source of constitutional meaning.
Although this chapter is written as an introductory survey, it may be of interest to constitutional theorists for two reasons. Many constitutional scholars assume that “living Constitution” theory is primarily a tool of constitutional interpretation, and that it emerged only with the Warren Court. It may be of interest to learn that living Constitution theory had origins in political theory. Separately, the chapter sheds light on an important tension in contemporary constitutional adjudication. The legal system is more incremental, conservative, and formal than political theory. Even when judges reject the normative foundations of the original Constitution, they advance alternative normative conceptions indirectly and haphazardly, out of a lawyerly respect for structure and form.