Progressive & Realist Eras

Among the earliest liberal critics, a few public law theorists challenged the two dominant themes in conservative constitutionalism. First, they demeaned the view of the Constitution as a stabilizing force that would rein in federal regulatory powers. These scholars argued that the government's construction of its own authority, denoted in the notion of its 'latent powers,' effectively enlarged the roles of the federal governmental branches, particularly when emergency or expediency justified political action. They claimed that the conservative account of the constitutional document blurred past practices and current realities of the political system.⁷⁶ Second, other writers, primarily legal historians,⁷⁷ spurned the concept of the 'formal' Constitution. They emphasized the connection of constitutional law and politics and promoted an understanding of the Constitution that would examine and describe the functioning framework of political machinery: congressional committee systems, the electoral college, and the political party organizations. According to one scholar among them, then-Professor Woodrow Wilson, constitutional study must focus upon the actual practices of the Constitution and concern the 'real depositaries and the essential machinery of power.'⁷⁸

Nevertheless, by the turn of the century, conservative federal judicial supremacy had become well-entrenched. With the leading members of the bar advocating the interests of the propertied and corporate classes, the federal judiciary had transformed economic and political arguments against governmental interference with private enterprise into constitutional limitations.⁷⁹ Accordingly, liberal challenges to the legitimacy of judicial review of congressional and state legislative socioeconomic regulations increasingly preoccupied liberal legal commentary. Criticism of the excesses in federal judicial authority, which usurped the power of popularly elected legislatures, became one of the central causes of the early realist public law scholars.⁸⁰

The link between constitutionalism and liberal democratic politics was solidified by legal realism in the first decades of the twentieth century. In effect, the legal realists advanced the assault on the two dominant themes in conservative constitutionalism that the earlier progressive scholars had initiated. Regarding the first theme, for the realist critic, the Constitution was not prescriptive; it could not serve to limit the regulatory purposes or means for federal legislative and executive power. Rather, the Constitution was primarily descriptive; it established and arranged the channels in which governmental power flowed.

The constitutionalism of the realist public law scholars was fundamentally political and sociological. They transcended the orthodox study of legal texts and traditions; they acknowledged the social realities that shaped legal decisions and the ways in which realities were shaped, in turn, by legal decisions. The legal historian Herman Belz describes the intellectual mission of the early twentieth-century constitutional scholars as the exposition of the 'constitution as a dynamic political process:'

[R]ealist critics after 1900 studied the interaction between law and politics with special reference to the forces that motivated constitutional change. This search ultimately led them to consider the nature and effect of constitutionalism itself. Given their disposition to reform, they viewed existing constitutional arrangements as the result of men responding to specific political pressures and concrete economic forces, rather than the necessary outcome of reliance on right principles of political science. . . .

This insertion of social and economic forces into the foreground of historical analysis was the principal development in constitutional studies during the era of reform.⁸¹

Moreover, for the realist scholar, the Constitution and the common law had importance, not in themselves, but because of the democratic social values and purposes that they enforced.⁸² A dominant argument of the realist critique was the antimajoritarian and incomplete character of constitutional and common law rights. The realists understood the constitutional and common law systems as instruments of politics, regulatory schemes through which government ordered private economic and social entitlements.⁸³ The experience of the Great Depression demonstrated the insufficiency for national economic welfare of the laissez-faire objectives of the common law, which privileged the existing distribution of market power and wealth. The realist approach permitted the restructuring of constitutional and common law doctrines⁸⁴ so that federal and state socioeconomic reforms during the New Deal might 'reshuffl[e] . . . the cards, from which a different distribution of benefits and burdens would result.' ⁸⁵