I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate.

Although courts had long expressed reluctance to declare laws unconstitutional, the founding generation had no constitutional theory of judicial restraint. Constitutional avoidance was a pragmatic canon, a sign of respect to the other branches, not a rule of law or a “standard of review” (a concept unknown to the Founders). Anti-court populism came and went in the nineteenth century, but it was not until the Progressive age that judges like Holmes, Frankfurter, and their allies formulated a legal doctrine to the effect that courts were, on principle, unqualified or unauthorized to interfere with the democratic process and obliged to relax constitutional standards accordingly.

(“Democratic,” of course, meant something unique to the Progressives. This was a type of democracy that would consist largely of expert administrators, not accountable to voters; supposed expert bureaucrats immune from actual democratic control, who would administer, rather than govern. The administrative agency is the manifestation of this very special kind of “democracy.”)

The Court devised a general theory of judicial restraint in a series of cases in the 1930s. This story has been told often enough—how, in 1934, in Nebbia v. New York, it abandoned the sixty-year old “affected with a public interest” test for determining the constitutionality of economic regulations and established in its place the “rational basis test” [...]

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