For the past few weeks, the news has been filled with stories about Texas, California, and other states, focusing on the various redistricting strategies that majorities use to strengthen their control over states. The technical term for this is “Gerrymandering.” The word, written initially as “Gerry-mander,” was first used on March 26, 1812, in the Boston Gazette — as a reaction to the redrawing of Massachusetts state senate election districts under Gov. Elbridge Gerry. The Democratic-Republican Party handled the redistricting, and Gerry was the one who signed the bill in 1812. As a result, he earned the dubious honor of being associated with it, along with its negative connotations. In some ways, it is unfortunate that Gerry has received opprobrium for this tactic, as he was a prominent signer of the Declaration of Independence, a member of the Continental Congress, and participated in the Constitutional Convention with distinction. He had a distinguished career, particularly in his championing of the Bill of Rights during the first Session of Congress after the ratification of the Constitution.

Political Gerrymandering

In recent weeks, this topic has been circulating on social media. At first, Texas proposed a redistricting map that would likely increase Republican congressional seats. Then, California Governor Gavin Newsom entered the discussion, threatening further redistricting in California. Other governors and political figures also chimed in. When someone posted on X particularly damning examples of gerrymandering, I suggested they were unconstitutional. But I was wrong (at least partly). Since I suggested last week that the 14^th Amendment applies, I decided to research why the answer to this is “Not generally.”

Advances in detailed and comprehensive voter databases, along with the increasing sophistication of mapping software, have resulted in more skewed redistricting maps. This practice is known as political gerrymandering—that is, gerrymandering done solely for political gain. Since it appears that both the threat from the California governor and possibly the entire Texas redistricting process involved this very issue, I decided to learn more about it, especially in light of my recent blogs discussing a “Balanced Personalist” view of Constitutional interpretation.

History of Gerrymandering and the Constitution

Partisan political gerrymandering—the drawing of legislative district lines to weaken the supporters of one party and entrench a rival party in power—is an issue that has long troubled the federal courts. Before the 1960s, the Supreme Court held that challenges to redistricting plans involved political questions that were not suitable for judicial resolution and should be addressed by the political branches of government.

Then, in 1962, the Court held in the landmark case of Baker v. Carr that a constitutional challenge to a redistricting plan could be justiciable. [1] Baker v. Carr involved a situation in which demographic changes had been ignored in redistricting decisions, penalizing urban areas. In subsequent years, although the Court invalidated redistricting maps on grounds of equal protection—cases involving population disparities among districts or racial gerrymandering—it did not strike down maps based on partisan gerrymandering.

In Davis v. Bandemer, the Court ruled that partisan gerrymandering in state legislative redistricting could be justiciable under the Equal Protection Clause of the United States Constitution. [2] Although the vote was 6-3 in favor of justiciability, a majority could not agree on a proper standard for determining when partisan gerrymandering becomes unconstitutional. Following Bandemer, the Court acknowledged that claims of unconstitutional partisan gerrymandering could be reviewable but did not establish a clear standard for adjudicating such claims. Similarly, after Bandemer, the Court was unable to reach a consensus on the proper test for several years.

“Justiciability” refers to the types of matters that courts are equipped to handle. If a case is “non-justiciable,” the court should not hear the case because it lies beyond the power of the judiciary to handle. Justiciability rulings typically arise when a court either (i) lacks the power to hear the case under the Constitution or (ii) when it is imprudent to exercise judicial power. In particular, Federal courts should not hear cases dealing with issues that the Constitution assigns to another branch of government. This is important for redistricting because Section 4 of Article One grants states the power to regulate the congressional election process and Congress the right to alter those regulations or make its own, as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. [3]

In other words, on the face of it, it is within the power of the states and Congress to deal with issues such as redistricting. This Constitutional provision sits at the core of the courts’ general unwillingness to address redistricting issues. Nevertheless, there are circumstances in which the courts will address redistricting, as in cases where the 14th Amendment has prohibited racial bias.

In Vieth v. Jubelirer, a plurality would have overturned Bandemer, returning to the view that political gerrymandering claims are nonjusticiable. [4] Justice Kennedy, concurring and casting the deciding vote, agreed that challengers had not yet articulated neutral or comprehensive principles for drawing electoral boundaries but expressed hope that future cases might establish a limited and precise rationale for such claims. Such a neutral rationale for judicial intervention was never found.

Finally, in Rucho v. Common Cause, the Court ruled that it was unable to identify any judicially manageable standards to decide claims of unconstitutional partisan gerrymandering, effectively overruling Bandemer. [5] The Court stated that federal courts are not equipped to allocate political power fairly and that fairness in this area is a concern. As a result, claims of unconstitutional partisan gerrymandering are considered “nonjusticiable political questions” and cannot be reviewed by federal courts. Writing for the majority, Chief Justice Roberts acknowledged that excessive partisan gerrymandering is unjust, emphasizing that the ruling did not endorse it but reminding that the Framers gave Congress the authority to address partisan gerrymandering under the Elections Clause.

Rucho v. Common Cause

As mentioned above, in Rucho et al. v. Common Cause et al. (Rucho), the Court held that Partisan gerrymandering claims present political questions beyond the reach of the federal courts because they lack the kind of justiciability required for the courts to handle them. In particular, Chief Justice Roberts relies upon Article 1, Section 4 of the Constitution, noting that the framers of the Constitution were consciously aware of the issues raised by gerrymandering but decided to leave such matters to Congress and the state legislatures. [6] Thus, Roberts ruled that:

The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void. Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to address partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open.[7]

Thus, for the majority in Rucho, it was enough that the framers initially assigned responsibility for this area to the states and later to Congress. There is a strong rationality behind this view that is hard to argue against. The question, of course, is, “Did the 14^th Amendment change things?” It certainly did change things when race is used as a criterion for decision-making. In Shaw v. Reno, the court held that racial gerrymandering violates the Equal Protection Clause of the 14^th Amendment. [8]

Conclusion

This is one of those cases when an instinct for fairness does not answer the Constitutional issue. The Courts have understood the issue of fairness and disapprove of partisan gerrymandering. In dissent in Rucho, Justice Kagan asks the simple question, “Is partisan gerrymandering how American democracy was supposed to work?” The answer is, of course, “No.” [9] Kagan also notes that modern “big data” and associated technology have allowed legislatures to turn gerrymandering into an art. [10] As Kagan puts it:

Mapmakers now have access to more granular data about party preference and voting behavior than ever before. County-level voting data has given way to precinct-level or city-block-level data, and increasingly, mapmakers avail themselves of data sets providing wide-ranging information about even individual voters.[11]

There is no simple answer to her critique. The only viable response is that, although what she says is true, the Constitution assigns the issue to Congress and state legislatures, not to the federal courts. This allows me to share something I have long wanted to express in these blogs: We often view natural law and justice as concepts limited to the duties of courts and judges. Nothing could be further from the truth. The legislative and administrative branches of government share the moral duty to pursue justice as well as what’s in the best interests of themselves, their supporters, and their constituents. The assignment of this matter to Congress and legislatures was not an invitation to injustice in our voting system to gain a partisan advantage.

One place to start might be with a comment made by Justice Kennedy in Veith and quoted by Kagan in her dissent in Rucho:

If districters declared that they were drawing a map “so as most to burden [the votes of] Party X’s” supporters, it would violate the Equal Protection Clause.” [12]

It so happens that, in recent public debates, certain state governors and politicians have made similar statements.

It is clear that if the primary purpose and intent of the legislature were solely to disenfranchise a minority party, such actions should be condemned. This indicates that the politicians were not aiming to serve the public but instead to disenfranchise supporters of another, minority party. Such conduct breaches their duty to act in the public interest rather than for personal gain or partisan advantage. To ensure compliance with Article 1, Section 4 of the Constitution, the court’s remedy should be to send the case back to the state legislature for further work on the matter.

In a way, political gerrymandering highlights the issue of a “person-centered” approach to constitutional interpretation. People are not the only factor to consider. As Roberts points out in his opinion in Rucho, the matter was assigned to the state legislatures and Congress by the Constitution, so the courts have a limited role. As Kagan states in her dissent in Rucho, the courts should step in only in the worst and most blatant cases of abuse to protect the rights of minorities to a meaningful vote—but that does not mean they should not step in where partisan gerrymandering has occurred in an especially damaging way.

A person-centered theory of Constitutional Interpretation cannot ignore this issue. Neither can a theory that emphasizes the “Will of the People.” As Kagan points out, excessive gerrymandering not only harms individuals who belong to a minority party but also undermines the social fabric that holds our society together.

Copyright 2025, G. Christopher Scruggs, All Rights Reserved

[1] Baker v. Carr  369 US 186 (1962)

[2] Davis v. Bandemer 478 U.S. 109 (1986)

[3] US Constitution Article 1: Section 4.

[4] Vieth v. Jubelirer 541 U.S. 267 (2004). In 2006, in League of United Latin American Citizens v. Perry, the Court again failed to adopt a standard but did not overrule Bandemer, instead deciding such claims were nonjusticiable.

[5] Rucho v. Common Cause 588 U.S. ___ (2019).

[6] Rucho, 2.

[7] Id, 5.

[8] Shaw v. Reno (509 U.S. 630 (1993).

[9] Rucho, 7

[10] Id, 9.

[11] Id.

[12] Veith at 312, Rucho at 12.

Hopefully, before Christmas, I will publish the final book in a series I have been writing. Leviathan & the Lambs will be the third book in a series of three novels that recount the story of Arthur and Gwynn Stone. Each of these novels has a financial crime, a murder or series of murders, and a spiritual struggle. For those who have not read the first two novels, Marshland and Peace at Battle Mountain, it may be helpful to briefly describe Arthur Stone’s life and career.

In Marshland, Arthur Stone appears as a young attorney in Houston, Texas, employed by a large law firm. He is involved in a transaction in the mid-1980s during the Texas savings and loan crisis. Arthur is at a crucial point in his personal life and legal career. He is in a romantic relationship with one of his colleagues, Gwynn Murray, another brilliant up-and-coming young attorney. Arthur may or may not be made a partner in his law firm, Winchester & Wells. The transaction involved is for an important but difficult client, Jackson Winchester. This novel describes the coming of age of Arthur Stone. The spiritual theme of this book is the reality of the spiritual world and our human response. We sometimes call this “faith.”

The second novel, Peace at Battle Mountain, finds Arthur Stone as a highly successful Texas trial lawyer involved in a large, complex litigation. This particular novel takes place during the time of the collapse of Enron. Arthur is now a middle-aged lawyer. His relationship with Gwynn is troubled and tragic. His children are difficult, especially his eldest son, who is now a challenging adolescent. In this novel, Arthur struggles with the breakdown of his marriage and the difficulties of his professional life. The spiritual theme of this book is the relationship between love and forgiveness and the problems humans face in forming and maintaining deep, caring relationships. Love is the theme of the book.

Leviathan & the Lambs finds Arthur in a new position with new challenges. It is nearly a decade into the 21st century. Arthur Stone is now the Attorney General of Texas. The nation is experiencing the Great Recession, which began in 2007. Despite his success, Arthur’s accomplishments have not brought him the happiness he hoped for. He feels hopeless, abandoned, and burned out. In this novel he is called upon to face new challenges— the most perplexing of his life and career.  The spiritual theme of this book is hope and the limits on the earthly accomplishment of our hopes and dreams. All humans strive for happiness and fulfillment, but even if we are successful, we all face limitations and unfulfilled dreams.

In this final novel in Leviathan & the Lambs, the characters face a global financial crisis with implications greater than those involved in the first two novels. Interestingly, this economic crisis originated in the mortgage industry, the same industry that led to the savings and loan crisis of the 1980s. Thirty years have passed since the series began. Nevertheless, the human problems are the same. Human greed is the same. The danger that greed may lead to criminal behavior is the same. The results of foolish and criminal behavior are the same.

For conciseness, the author refers to these novels as “the Arthur Stone series.” However, the series could easily be referred to as the “Gwynn Stone series,” as she plays a vital role in each novel. Though their relationship is sometimes troubled, Gwynn is Arthur’s true counselor and life-companion. The series might also be called the “John Mirador series” because Mirador appears in all three books, though under different names. Mirador is a strong, straightforward, and prudent person who represents the best in all of us. Additionally, this series could be named the “EJ Mueller series,” since EJ Mueller features in the first and last novels and is significant to the overall message. There is just a little bit of EJ Mueller in all of us, or at least there is in the author!

Perhaps most appropriately, the series could be called the “Ahn Winchester series.” Ahn appears in all three books and plays an essential role in each of them. The author often tells friends she is his favorite character, which is true. Ahn plays a special role in all the books, and a vital role in the final book.

Arthur Stone is the hero of these novels, but any hero depends upon many characters essential to the hero’s life and success. This is true in both life and literature. Arthur’s success depends upon the sacrifice, wisdom, and concern of those surrounding him. He is an important actor on the stage, but not the only one. Without Gwynn and Ahn, Arthur would often stumble or fail. He is a decent, but not flawless, person. He is smart and capable, but he makees mistakes and is often unsure of himself. In this respect, the Arthur Stone may be truer to life than the hero of many novels.

The given author of the three novels is Alystair West, a pen name. You can learn more about Alystair West and the meaning of the name on my website. Since I have written both philosophical and religious works under my own name, I felt it was a good idea to write these books under a pseudonym. It helps to separate the two vocations.

Finally, these three novels have common purposes: First, these novels hope to open up secular people to the potential for spiritual and moral realities. Our culture suffers the onsequences of the loss of belief in spiritual and moral realities.

Second, the novels examine some of the common moral features that accompany financial crises and fraud. I have lived long enough to experience several financial crises caused in no small part by human greed and misguided national financial policies.

Third, the novels tell a perennial story that applies to the human condition in every age. As readers of the first two novels already know, the story of Arthur Stone is one of those mythic stories told in many cultures with many different charactures and social backgrounds. When people ask me who were the real people behind the story, I respond that the characters, if they lived at all, lived a thousand years ago. I have only brought them back to life to tell a story about our own day and time.

For the author’s part, he thanks all of the actors on the stage of his life and hopes all readers enjoy the stories.

Copyright G. Christopher Scruggs, All Rights Reserved

Randy Barnett is not just an academic publishing so he won’t perish. He is making a case for what he calls “a Republican Constitution” and a judiciary committed to protecting the rights of every American, including those whose views are out of favor with the majority at any given moment. In his analysis, the fight for what I will call “a person-focused theory of constitutional interpretation” has three phases: from the Founding until the Civil War, from Reconstruction to the New Deal and Great Society, and finally from the Rehnquist Court (1986) until today. In this view, the years since 1986 have marked an “on again/off again” journey towards recovery of a more person-centered or what he would call a Republican Constitution.[1]

From Enumerated Powers to a New Federalism

These constitutional eras are conveniently understood as:

• “Enumerated Powers Federalism,” where the states remained the final sovereign power and the Federal government was limited to those expressly found in the Constitution (1789 to 1865);
• “Fundamental Rights Federalism (1865 to about 1976,” where the states were limited in their sovereignty by the fundamental rights guaranteed by the 13th and 14th Amendments and the gradual expansion of federal power over the nation’s economy; and
• “State Sovereignty Federalism” (1976 to the present), what I call “Balanced Federalism,” in which the Court tries to preserve the role of state governments without rolling back the substantial expansion of Federal power since the Civil War Balanced Federalism has tended to slightly roll back some of the most controversial progressive constitutional innovations of the 20th century. [2]

Balanced Federalism provides greater autonomy to the states from congressional oversight by using a textually faithful safeguard, aiming to combine Enumerated Powers Federalism with Fundamental Rights Federalism to create a more balanced federal system. The goal is to maximize state sovereignty and restrict the federal government to its enumerated powers, except when states violate the 14^th Amendment or other constitutional provisions.[3]

Separation of Powers

A critical aspect of Balanced Federalism is the doctrine of Separation of Powers. Those not familiar with constitutional history often decrie the fact that there are significant Constitutional restraints on what a president, Congress, and the courts can do. This was not accidental. The founders understood that it was dangerous to concentrate power in any one branch of government and that it was profitable to create checks and balances on the actions of any department. The doctrine of separation of powers is a mechanism by which the Constitution prevents one branch of government from abusing its power without constraint.

The object of both the Separation of Powers and the situations in which the Constitution requires approval of one branch for the actions of another (such as Congressional approval of presidential nominees) is precisely to limit the powers of one branch by allowing other branches to be involved in certain decisions. For example, the President appoints but Congress approves nominees to federal judgeships, which acts as a constraint on both the President and Congress, as well as the Courts.

When one party controls both the Congress and the Presidency for a substantial period, the prevailing ethos allows a particular group to wield substantial power, as happened during the long Presidency of Franklin Roosevelt. More troubling, however, has been the growth of what is called the “Administrative State.” [4] During the period from the New Deal until recently, Congress often passed legislation that was pretty vague on complex matters, such as the environment, leaving various agencies free to create substantial bodies of law with minimal checks and balances. Even more worrisome is the fact that these agencies promulgate regulations, enforce those regulations, and often adjudicate claims under such regulations —a patent violation of the principle of separation of powers. There was simply no check on bureaucratic power.

In Dep’t of Transp. v. Ass’n of Am. Railroads, Justice Thomas put the problem well:

At the center of the Framers’ dedication to the separation of powers was individual liberty. The Federalist No. 47, at 302 (J. Madison) (quoting Baron de Montesquieu for the proposition that “‘[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates’ ”). This was not liberty in the sense of freedom from all constraint, but liberty as described by Locke: “to have a standing rule to live by . . . made by the legislative power,” and to be free from “the inconstant, uncertain, unknown, arbitrary will of another man.” Locke §22, at 13. At the heart of this liberty were the Lockean private rights: life, liberty, and property. If a person could be deprived of these private rights on the basis of a rule (or a will) not enacted by the legislature, then he was not truly free.[5]

Thomas went on to conclude:

We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.[6]

In various ways, from the late 19^th century to the early 21^st century, the courts, in the name of judicial restraint, actually allowed the creation of a nearly unrestrained federal bureaucracy. Justice Thomas believes that it is necessary to rebalance the power structure impacting bureaucracies to avoid an unhealthy concentration of power.[7]

Avoiding Arbitrary and Irrational Laws

In addition to supporting the separation of powers, Barnett emphasizes that the court must define the limits of the powers granted to bureaucracies by the Constitution. One reason a federal judiciary was deemed necessary was the concern that the legislative or administrative branches might favor their interests and exceed their constitutional authority. Specifically, when the courts adopt a policy of upholding a piece of legislation or legislative rule if a reasonable person could believe it is the right course of action, they have essentially abandoned their constitutional duty to protect the people from the other two branches of government. Congress must enact laws and cannot pass this responsibility along to unelected bureaucracies.

Additionally, the judiciary must be cautious not to act as a kind of super-legislature. Since the adoption of the 13th and 14th Amendments, the Court has been tempted to create rights or impose limitations on rights not explicitly found in the Constitution, often through what might be called a substantive due process approach. Before the period around the New Deal and extending through the end of the Progressive Era, courts were enticed to find substantive unenumerated rights in the Constitution.

As Barnett points out, this was not the approach the courts took even after the 13th or 14th Amendments were ratified. Instead, these amendments protected the right of individuals not to be deprived of their rights without due process—such as a trial before imprisonment—and to be treated equally in similar situations. For due process to be correctly applied to individuals, there must be an impartial judiciary (not a politicized one) making an unbiased judgment on whether a specific statute or administrative act exceeds or stays within the powers of the government. This is a duty that courts cannot pass on to anyone else. When faced with such questions, courts must perform a two-step analysis.

1. Was the legislature or administrative agency acting within the enumerated powers given to it under the Constitution? This implies that the courts must be willing to look at the restrictions on federal power contained in the Constitution and determine whether the federal agency acted within its powers.
2. Was the restriction necessary and proper to the accomplishment of the responsibility given by the constitution? In other words, there must be a judgment of whether or not the action was excessive.[8]

In Barnett’s view, in several areas, the courts have been willing to let Congress legislate or administrative agencies legislate, enforce, and adjudicate matters that are not necessarily appropriate for the federal government. For example, it’s highly unlikely that either the founders or the drafters of the 13^th and 14^th amendments considered that they were giving the federal government the right to prevent private individuals from growing crops for private consumption on their own private property.[9]

Recovering a Person-Centered Constitution.

During the Progressive Era, legislation was often upheld if any hypothetical person could find a rational reason why it was appropriate. Such a stance deprives individuals of the ability to complain about how that legislation or administrative action affects them personally. At the core of restoring a Republican Constitution—what I call a Person-Centered Constitution—is a judiciary that safeguards individuals from excessive restrictions on their personal freedoms guaranteed by the Constitution. This can only happen if the judiciary is willing to act when, in response to popular demand or the interests of various vested groups, Congress or administrative agencies impose improper limits on that freedom.[10]

To secure the future of our form of government, Barnett believes that several steps need to be taken. Among them or the following:

• A concentrated effort to educate citizens concerning our constitutional heritage;
• Selecting judges who can and will place the interest of individual citizens above the “collective will” as determined by Congress or administrative agencies.
• Enacting constitutional amendments that limit the federal income tax, establish term limits for members of Congress, and create some kind of repeal process for federal legislation vested in the states.

Besides those Barnett suggests, I believe there are two others that are of significant importance:

• A constitutional amendment to bar the federal government from issuing unfunded mandates.
• A constitutional amendment requiring the federal government to balance its budget, except during times of war or declared national emergency, without needing a two-thirds approval from Congress.
• A constitutional amendment prohibiting Congress members, Senators, and their families and associates from trading stocks based on inside information or profiting from federal contracts, directly or indirectly.

Much of the distortion of our federal system could be reduced if the federal government did not have an unlimited amount of money to waste on questionable projects and lacked the authority to use funding to influence state governments. Congress would also benefit from a balanced budget amendment because it would help focus attention on fair and appropriate taxation levels and whether funding requested by private interests or federal agencies is genuinely necessary.

Recent disclosures reveal that federal agencies are essentially recycling federal dollars to private organizations, which then flow back into the pockets of political parties. In some cases, politicians personally profited by these schemes.  This should be made a crime.

Conclusion

I recommend that my blog readers buy Our Republican Constitution and read it themselves. Although I have spent five weeks on this project, I had to skip over many very interesting and important parts of the book. I am not a constitutional scholar in my ability to render for my readers the depth of his argument is limited.

I’ve mentioned before that this is part of a longer-term project I’m working on to understand. Still, I already believe some fundamental issues are distorting our political system in ways that harm our way of life and could impoverish our children. Additionally, longtime readers of my blog know that, although this emphasizes the importance of persons, my general philosophical legal theory does not discount the power of communities to shape the lives of their members. Barnett essentially works within a post-Enlightenment, modern way of thinking about politics and constitutional law. I wonder if there needs to be a recognition that constitutional law should acknowledge both the will of the people and the rights of individuals within a new framework for addressing the problems involved. That is the question I am trying to answer.

Copyright 2025, G. Christopher Scruggs, All Rights Reserved 

[1] Unfortunately, in our current politically charged environment, readers often understand the terms “Republican Constitution” and “Democratic Constitution” with reference to the current political parties by those names and react to the argument based upon their preferences. In order to avoid this, I am using the terms “Person Centered Constitution,” “Collective Will Constitution,” and “Balanced Constitution” to refer to certain options.

[2] Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (New York, NY: Broadside Books (Harper Collins, 2016), 189-198.

[3] Id, at 199-200.

[4] In 1900, the federal workforce was relatively small, primarily focused on traditional government functions. Today, federal employment is about 3,000,000 people. In 1900, that number was minuscule.

[5] Dep’t of Transp. v. Ass’n of Am. Railroads 575 U.S. __ (2015), at 10 (slip opinion).

[6] Id, at 27

[7] As mentioned last week, there is reason to believe that the Court sees this problem and is attempting to correct it. In Loper Bright Enterprises v. Raimondo v National Resources Defense Council No. 22–451, 603 U.S. __ (2024), the Court overruled their 1984 decision in Chevron v. Natural Resources Defense Council 467 U.S. 837 (1984), which gave rise to the doctrine known as the “Chevron Doctrine.” Under that doctrine, if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was found to be reasonable on some ground.

[8] Id, at 231.

[9] Wickard v. Filburn 317 U.S. 111 (1942). This case involved the expansion of the Commerce Clause to growing wheat by a farmer for his private use. In recent years, the Court has backed away from this overly expansive stance. United States v Lopez 514US 549 (1995).

[10] Id, at 245.

The United States Constitution was created during a pivotal moment in history. It reflects the ideas of the Enlightenment, also known as the Age of Reason, which followed the Renaissance and was influenced by discoveries from Isaac Newton and the emergence of modern Natural Science. During this era, Western Europe made significant advances in science, philosophy, government, and law. Concerning legal philosophy, the founders were most influenced by John Locke and British Empiricism, as well as pre-French Revolution rationalism. Had the Constitution been written earlier, Americans might have had a king. If it had been created later, our revolution could have turned out more like the violent French Revolution and subsequent uprisings in Russia and elsewhere. Instead, the founders designed a unique form of government unlike any other before or since.

Perhaps sadly, Europeans often viewed American culture as somewhat backward, and European intellectual trends have had a significant influence on American intellectuals. This pattern can be observed during the Post-Civil War era of the Industrial Revolution and also in the fascination that American intellectuals have displayed toward the “isms” of the modern age, from Marxism to Maoism, from existentialism to postmodernism. This week, I cover the so-called Progressive Movement and the period between 1900 and the later part of the 20^th Century. During this nearly century-long period, there was a continuous expansion of the national government’s power over the economy. At the same time, Americans also saw substantial progress in racial relationships. Finally, during this period, the United States emerged as the leading global power, raising new issues that required constitutional adaptation.

Before launching into this week’s effort, I need to repeat that the words “Republican” and “Democratic” as used in Randy Barnett’s work do not mean “Republican Party” or >Democratic Party.” Moreover, I am trying to understand something in these blogs, and my views are not yet ready for publication.

The Progressive Movement

In the last blog, I mentioned the work of James Bradley Thayer and his significant law review article published in the Harvard Law Review in 1893.[1] Randy Barnett mentions a feature of Thayer’s article that is emblematic of the modern mind—the focus on power. Thayer’s analysis focuses on when the judiciary should use its power to declare acts of the other two branches of government unconstitutional. In Thayer’s view, such power must be used with restraint, giving legislatures the maximum flexibility to design social legislation. Power needs to be used and, in some cases, restricted. It is, therefore, not surprising that so much 20th-century debate has been on the extent and use of judicial power. This focus on power and judicial decision making reached its nadir with Justice Holmes’ view that justice is simply what the majority wants bad enough to enforce.[2] This inclined Holmes and his followers to defer to whatever the popular mandate of the people might enact.

From Theodore Roosevelt’s presidency to the end of the 20^th century, the Court was increasingly influenced and shaped by the Progressive Movement. Under the influence of the views of Roosevelt, Woodrow Wilson, Holmes, Frankfurter, and Brandeis, the Court increasingly provided judicial support for the various social engineering ideals of the Progressive movement—a support that Randy Barnett sets out in detail in Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. [3] This was particularly evident in the various cases in which progressive judges initially opposed and then supported economic enactments that clearly limited individual freedom over their own property.

Gradually, especially after Roosevelt’s “Court Packing Plan,” the Supreme Court initially bowed to progressive ideology and then advanced it, as the appointees of successive presidents influenced the court’s rulings. As expected, the outcomes are mixed. Looking back, one can see that the Court increasingly permitted restrictions on economic and various public freedoms, while expanding what might be called “purely private” freedoms, occasionally without specific justifications for its decisions.

In Barnett’s way of thinking, the courts were striking a deal with the devil: they would permit restrictions on property rights but cover their tracks by focusing public attention on areas like pornography, abortion, etc. In doing so, they significantly expanded judicial power to create rights that the Constitution reserved for the states, as Justice Black noted in a famous dissent that, while the Court can declare laws unconstitutional, it does not have that power where the Constitution provides no explicit grounds for such decisions. Where the court does so, it undermines both the rule of law and its own legitimacy

My point is that there is no provision of the Constitution that either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious, or irrational. The adoption of such a loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country. [4]

The history of the court since Black’s comment reveals its core wisdom. The Court has significantly damaged its public reputation by increasingly being perceived as nothing more than an unelected legislature. Moreover, the court has become more of a supporter of the emerging highly intrusive regulatory state, where unelected bureaucrats create, enforce, and interpret their powers without adequate checks and balances on those powers. [5]

Brown v Board of Education

This does not mean that good decisions were not made or that the court did not rectify some important past mistakes. None of these mistakes was more essential to rectify than abandoning the “separate but equal” doctrine in favor of the kind of integration the 14^th Amendment was designed to achieve. This occurred in the case of Brown v. Board of Education. [6] Brown was actually a consolidation of cases arising in Kansas, South Carolina, Virginia, Delaware, and Washington, D.C., relating to the segregation of public schools based on race. In each case, African American students were denied admission to segregated public schools based on laws allowing public education to be segregated by race. They argued that such segregation violated the Equal Protection Clause of the Fourteenth Amendment.

The plaintiffs were denied relief in the lower courts based on Plessy v. Ferguson, which held that racially segregated public facilities were legal as long as the facilities for blacks and whites were equal. [7] (This was known as the “separate but equal” doctrine.) Brown was a victory for the view that the court’s role is to ensure that the intentions of the Constitution’s writers are honored; in the case of Brown, the writers of the 14th Amendment intended to eliminate the disadvantages associated with slavery, despite the majority opinion in much of the country.

Conclusion

For most of English history, and especially in the period leading up to the British “Glorious Revolution” and the American Revolution, some form of “natural law” theory captured the minds of most lawyers and was important in their formation. Modern “natural law” theory was an outgrowth of the optimism of the early Enlightenment, with its assumption that all reasonable people would agree as to the most fundamental principles of faith, morals, and law. In this way of thinking, there was a just answer to most legal questions, and judges and juries have to find that just result.

By the turn of the century, the ancient quest for a just society had shifted to a new perspective on law—a perspective centered on power, particularly judicial power in courts. Confidence among elites waned, viewing the ancient rights of “life, liberty, and the pursuit of happiness” as merely lofty words whose real meaning depended on those in power. Sadly, Justice Holmes’ idea that justice is whatever the majority demands strongly enough to impose on others had become the unofficial basis of government. This has led to an increasingly manipulative elite and a slow erosion of freedoms once bought with the modern equivalent of “bread and circus.” It remains to be seen whether 21^st-century Americans can save their nation from these outcomes.

Next week, I will bring this series to a close, but I plan on returning to the subject at a later date. I would like to reiterate my statement that I am attempting to understand how a post-modern approach might mediate between the right and left in our current constitutional debates. I am not able to say any firm conclusions. I am learning. I do believe that Barnett’s books deserve the closest reading, closer than I am capable of giving them. One aspect of any movement is to reject the modern focus on power and return to the view that “the life of the law is neither logic nor experience, but the eternal search for justice.”[8]

Copyright 2025, G. Christopher Scruggs, All Rights Reserved

[1] James Bradley Thayer, “The Origin and Scope of American Constitutional  Law” 25 Harvard Law Review 7 (1893).

[2] Holmes was a complex thinker and not systematic in his approach to legal or philosophical issues. As a materialist, he lacked Peirce’s faith in the reality of such abstract universal notions as “Justice.” As a committed evolutionist, he saw the law as a constantly evolving body of rules for human behavior. As a Social Darwinist, he was inclined to support the powerful and socially successful over the weak, poor, and powerless. See, Seth Vannatta, Justice Holmes the Social Darwinist 14 The Pluralist 1 (Spring 2019). This aspect of Holmes’ philosophy is by far the most often critiqued.

[3] Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (New York, NY: Broadside Books (Harper Collins), 2016).

[4] Griswold v. Connecticut, 521-522

[5] This deference requires its own article, especially in view of the recent overturning of what is known as the “Chevron Doctrine” by which bureaucratic interpretations were upheld by the Court unless manifestly unreasonable. In Loper Bright Enterprises v. Raimondo v National Resources Defense Council No. 22–451, 603 U.S. __ (2024)  , the Court overruled their 1984 decision in Chevron v. Natural Resources Defense Council 467 U.S. 837 (1984), which gave rise to the doctrine known as the “Chevron Doctrine.” Under that doctrine, if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable.

[6] 347 US 483 (1954).

[7] Plessy v. Ferguson, 163 U.S. 537 (1896).

[8] In 1881, Holmes published a series of lectures titled The Common Law, in which he announced an empirical theory of the law, saying:” The life of the law has not been logic; it has been experience.” Oliver Wendell Holmes, The Common Law, Mark D. Howe, ed (Boston, MA: Little Brown & Co., 1881, reprinted 1963). I think he represents the modern belief that all that exists are “matter and force.” A constructive postmodern approach will return to the reality of belief in ideals like justice.