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c h a p t e r t h r e e The Progressive Reconstruction of American Constitutionalism You cannot compound a successful government out of antagonisms. Woodrow Wilson In the spring of 1895, the Supreme Court struck down the newly passed national income tax,1 held that the Sherman Antitrust Act did not apply to a virtual monopoly of sugar manufacturing,2 and, critics insisted, used this same act to uphold an injunction against a labor strike.3 The public explosion in reaction to these cases sparked a great debate about the nature of judicial power in a democratic society. This reaction was in marked contrast to the Court’s decision a year later in Plessy v. Ferguson, which was met with silence, as the Court went with the current of popular thought in retreating from the constitutional commitments of Reconstruction .4 But in 1895 the Court was accused of defending “the propertied class” against labor,5 of injecting its personal preferences into law, and of illegitimately usurping democratic power. Against populist views of democracy and emerging progressive thought, the nature of judicial review was suspect, leading to distinctly “countermajoritarian”criticismsof theCourt.6 Inthe1912election,TeddyRoosevelt captured this sentiment in his“Confession of Faith,”noting that“the Wrst essential of the Progressive program is the right of the people to rule.”7 The Court’s exercise of judicial review was a manifestation of the central problem of countervailing power for progressives. As Herbert Croly explained, “Now that a plain tendency exists to emancipate legislation from judicial control, the se­­ riouspracticalweaknesswithwhichthisaspectof thetraditionalsystemwasaZicted should not escape scrutiny.”8 Roosevelt went so far as to say, “It is the people, and not the judges, who are entitled to say what their constitution means, for the constitution is theirs, it belongs to them and not to their servants in oYce—any other theory is incompatible with the foundation principles of our government.”9 Even      The Madisonian Constitution Woodrow Wilson, who in Constitutional Government in the United States praises the Court in whiggish terms as “the balance-wheel of our whole constitutional system,” did so because the Court had, according to Wilson, seen Wt to “adapt” the “Darwinian constitution” to the “opinion of the age.”10 Where judges were concerned with “Wne-spun constitutional argument” rather than democratic adaptation , they should be led“to a back seat”where they might“pass unnoticed from the stage.”11 Sidney Milkis goes so far as to suggest that progressives sought to bring about direct democracy and thus were altogether suspicious of constitutional limi­ tations and forms.12 At the same time, however, progressives drew on earlier stands of constitutional thought, reconstructing the nationalism of Alexander Hamilton and Abraham Lincoln to justify the expansion of national power as rooted in constitutional foundations, rendering the “state-building” project a natural extension of our constitutional ends. In The Promise of American Life, Croly singled Lincoln out as the only exceptional political Wgure of the latter half of the nineteenth century. Interestingly, Croly dwelled on Lincoln’s“generous spirit”and not on his constitutional thought. Like most progressives, Croly had little interest in questions of race, symbolizing the nation’s tragic retreat from the promise of Reconstruction.13 He also had little patience for Lincoln’s invocation of the Declaration of Independence and natural rights, or his insistence that they were the “sheet anchor” of American constitutionalism . Thus, Croly sought to rework Lincoln, drawing exclusively on his “na­­ tionalist” spirit, as part of reconstructing American constitutionalism. For all the diVerences among various progressives, and for all of their praise of Lincoln and Hamilton, they were united by a common criticism of the Madisonian Constitution and its “whig mechanics” of countervailing power.14 Carefully drawing upon Lincoln’s refusal to be bound by the Dred Scott case, Teddy Roosevelt sought “to make legislature and court alike responsible to the sober and deliberate judgment of the people,” insisting that it was“for the people and not the courts to determine the principles and policies in accordance with which our constitution was to be in­­ terpreted and our government administered.” In rejecting judicial supremacy, however, Roosevelt seemed to cast doubt on all constitutional forms that might thwart popular will: “Our prime concern is to get justice. When the spirit of legalism , the spirit of hair-splitting technicality, interferes with justice, then it is our highest duty to war against this spirit, whether it shows itself in the court or anywhere else.”15 Wilson’s Constitutional...

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