The Founders Betrayed
Chapter 4: The ‘New Court’ at Work
THE PROGRESSIVE AGENDA The constitutional jurisprudence of the ‘New Court’ was, in many ways, a reflection of the Progressive view of social progress. While, as we shall see (in Chapter 5), an emergent conception of the transcendental autonomous self is itself partially responsible for the growth of the federal enterprise, immediate interest centers on two ‘progressive’ ideas. Simply stated, Progressives questioned both the structure of US federalism and the conception of individual liberty that animated much of the Old Court’s constitutional jurisprudence; in particular, the liberty of contract (Epstein, 2006, pp. 7–8). Characteristically, Progressives espoused an economic nationalism whose central principle is that the ‘extensive interconnection of all aspects of the American economy crie[s] out for federal regulation’ (ibid., p. 8). On this logic, they insisted upon what I argue is an expansive understanding of the federal role. Interestingly, James Madison reacted in 1819 to an early expression of the ‘extensive interconnection’ mantra: In the great system of Political Economy having for its general object the national welfare, everything is related immediately or remotely to every other thing; and consequently a Power over any one thing, if not limited by some obvious and precise affinity, may amount to a power over every other. Ends and means may shift their character at will & according to the ingenuity of the [federal] Legislative Body. ( 1999, p. 734) For present purposes, the essential point is that, in Progressive hands, the ‘extensive interconnection of all aspects of the American economy’ was, along...
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