Paper prepared for presentation at the Annual Meeting of the American Political Science Association Seattle, WA September 1-4, 2011
The contemporary presidency, with its expanded foreign policy, administrative and public duties, is largely a brainchild of the Progressive Era. The Progressives envisioned an enlarged executive, one outside the original guidelines of the U.S. Constitution, which they deemed “archaic,” “undemocratic,” and unsuited to the demands of the modern age, in which mass capitalism dislocated, alienated and disenfranchised the common man. The Progressives wanted to bring about a more energetic, streamlined, and unified state at the helm of which stood the presidency, an office of popular leadership and swift action. To accommodate this new, active figure, some Progressives believed it necessary to break with the old Constitution, something moderates like Woodrow Wilson were loath to do. Wilson saw the Constitution as a “living document,” capable of adapting to fit the spirit of the times. This claim, geared to placate legal conservatives, unfortunately allowed future presidents to take advantage of the new tools of the Progressive executive without pondering its rightful constitutional status.
In this paper, I explore the Progressive “legacy” for the president and suggest that in expanding executive institutional power without enacting corresponding constitutional changes, it has left present-day constitutionalists in a bind. The modern presidential toolkit is functionally equivalent to that of the Progressive president, although, by legitimating itself on “originalist” grounds, it has shed the proposed Progressive constraints upon it of a more active citizenry and a new constitutionalism. As a result, today we find ourselves tenaciously defending the unerring wisdom of the separation of powers even while confronted with the increasingly obvious realization that the old constitutional checks alone are insufficient to cabin executive power. The Progressives took us far enough from the Founding Fathers’ modest executive that we can no longer return to this original vision, but in failing to smash our formalist paradigms of presidential power, they did not take us far enough.
Presidency, Progressive Era, Executive Power
Katz, Andrea Scoseria, The Progressive Presidency and the Shaping of the Modern Executive (2011). APSA 2011 Annual Meeting Paper, Available at SSRN: https://ssrn.com/abstract=1900936
Katz, Andrea Scoseria, "The Progressive Presidency and the Shaping of the Modern Executive" (2011). Scholarship@WashULaw. 32.