From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law

INTRODUCTION Many early-twentieth-century Progressives (1) believed that the Constitution reflected anachronistic liberal individualism and natural rights ideology. (2) Occasional judicial decisions that thwarted their favored reforms provoked them further. As a result, some Progressive intellectuals, especially those associated with the pro-labor-union political left, became overtly hostile to the Constitution. (3) Even those Progressives who were more favorably inclined to the Constitution typically loathed judicial review. Progressives thought that judicial review was undemocratic and that it put too much power over public policy in the hands of non-expert judges. (4) Leading Progressive politicians, including Theodore Roosevelt, (5) Senator William Borah, (6) and Senator Robert LaFollete, (7) sought in the 1910s and early 1920s to protect Progressive legislation by limiting judicial independence and the power of judicial review. Progressive hostility to judicial review most often manifested itself in criticism of judicial opinions blocking labor and other regulations. But with the partial, post-World War I exception of freedom of expression--which was justified by Progressives not as an individual right but as a necessity for democracy to function properly in the public interest--thinkers on the Progressive left were typically as opposed to judicial intervention on behalf of what we now call civil liberties as they were to judicial intervention on behalf of economic rights. (8) For example, in his extremely influential book Progressive Democracy, Herbert Croly criticized the Bill of Rights for turning the Constitution "into a monarchy of the Law superior in right to the monarchy of the people." (9) Morris Cohen, meanwhile, questioned the legitimacy of using judicial authority to invalidate legislation that infringed on individual liberty. (10) Leading Progressive jurists naturally tended to be less hostile to the judiciary than were Progressives who were not attorneys. Nevertheless, these jurists strongly opposed judicial invalidation of economic legislation. They also were usually at best uninterested injudicial attention to civil libertarian concerns of the sort that helped define the liberal constitutionalism of the post-New Deal period. Edward Corwin, anticipating the victory of Progressive constitutionalism, asserted in 1934 that the "twilight of the Supreme Court" was at hand. (11) As Corwin predicted, the New Deal ultimately triumphed over constitutional objections and the Supreme Court stopped seriously reviewing the constitutionality of economic legislation. Leading Progressive jurists such as Hugo Black and Felix Frankfurter joined the Court, and informed observers expected that the Court's significance in American life would fade. Contrary to expectations, however, the Supreme Court managed to retain its former significance--and then some--by gradually dispensing with Progressive hostility to judicial review and greatly expanding constitutional protections for civil liberties and civil rights. (12) This was met with general approbation in liberal circles. (13) Indeed, among jurists who considered themselves to be on the non-Communist political left, the middle of the twentieth century witnessed a dramatic shift. Mainstream opinion in these circles evolved from an often statist or at least majoritarian and anti judicial-review Progressivism to a liberal jurisprudence that supported a much broader civil libertarianism than even Progressive civil libertarians had fathomed. The Progressives' strong aversion to a significant judicial role in American politics and government morphed into approval of strong judicial activism when it favored civil libertarianism and racial equality. (14) This shift has received surprisingly little attention from scholars. (15) In Rehabilitating Lochner, I suggested several "externalist" reasons why New Dealers abandoned the statism of their Progressive forebears in favor of civil libertarianism: First, judicial regard for civil liberties allowed New Dealers, within and outside the Court[,] to plausibly claim that they were committed to preserving individual rights even while vastly expanding the size and scope of the federal government. …