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 20th 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 20th 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 14th 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 21st-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.