…Much of what the Progressive Era had only hoped for, the New Deal brought into being, transforming America’s constitutional structure in ways that such Progressives as Woodrow Wilson, with his belief that the Founders were antique, bewigged figures with views unsuited to modernity’s more informed and effective age of science, statistics, and professionalism, had urged. –‑
Wilson, argues author Freedman, saw “the Founders’ checks and balances as an unnecessary drag on the efficiency of government,” which should be a vast mechanism in which expert bureaucrats with advanced degrees—working altruistically in nonpolitical agencies like the Interstate Commerce Commission, formed in 1887, or the Federal Trade Commission, founded during Wilson’s presi-dency—would smoothly institute what advances in economics and social science would reveal as the common good. In 1908, Wilson swept the Founders and their cobweb-covered Constitution into the dustbin of history. “No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle,” he wrote. By contrast with the Founders’ musty parchment, he continued, “Living political constitutions must be Darwinian in structure and practice.” Can’t get much more up-to-date and scientific than evolution.
And so arose the doctrine of the Living Constitution, which has now infringed nearly every guarantee of the Bill of Rights, from free speech to federalism. “The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretations—the decisions of courts,” Wilson wrote. “The process of formal amendment of the Constitution was made so difficult by the . . . Constitution itself that it has seldom been feasible to use it.” So the doughty courts have stepped in and taken over the “whole business of adaptation . . . with open minds, sometimes even with boldness and a touch of audacity,” becoming “more liberal, not to say more lax, in their interpretation than they otherwise would have been.” As Wilson saw it, writes Levin, “the federal judiciary was to behave as a permanent constitutional convention,” making up the laws as it went along. Of course, at that point, as Lincoln had warned almost half a century earlier, “the people will have ceased to be their own rulers.”
And indeed, it was this magic elixir of judicial constitution-making and rule by administrative agencies that Franklin D. Roosevelt employed to transmute the American political system into one that resembled George III’s system of rulers and subjects as much as it did George Washington’s government….
Myron Magnet, It’s Not Your Founding Fathers’ Republic Any More, City Journal (Summer 2014), 47-48.