EXCERPTS:
"Professor Roscoe Pound likewise referred to the need for "a living constitution by judicial interpretation," in order to "respond to the vital needs of present-day life." He rejected the idea of law as "a body of rules."
But if law is not a body of rules, what is it? A set of arbitrary fiats by judges, imposing their own vision of "the needs of the times"? Or a set of arbitrary regulations stealthily emerging from within the bowels of a bureaucracy?
Louis Brandeis was another leader of this Progressive era chorus of demands for moving beyond law as rules. He cited "newly arisen social needs" and "a shifting of our longing from legal justice to social justice."
In other words, judges were encouraged to do an end run around rules, such as those set forth in the Constitution, and around the elected representatives of "we the people." As Roscoe Pound put it, law should be "in the hands of a progressive and enlightened caste whose conceptions are in advance of the public."
That is still the vision of the left a hundred years later. The Constitution cannot protect us unless we protect the Constitution, by voting out those who promote end runs around it.
