The Progressive view of social progress equated active government with good government. Predictably, their theory of good government generated a compatible constitutional theory. Thus, any constitutional doctrine that stood in the way of comprehensive reforms had to be rejected or circumvented.
The Progressive program was deeply dismissive of the "individualist" ethic that Progressives believed shaped traditional social attitudes toward the transformation of social life. In consequence, they thought that it was necessary to undermine in two distinct areas traditional legal conceptions rooted in that bygone ethic. The first of these concerned the structure of American federalism, in which a national government of enumerated powers had a few defined tasks, with all else, including the regulation of economic activity, left largely to the states. The second had to do with the protection of individual liberty that dominated the judicial thinking of the time—chiefly the liberty of entering into voluntary contracts with whomever one pleased, and only with such people.
On the first point, Progressives were champions of economic nationalism with its cardinal principle that the extensive interconnection of all aspects of the American economy cried out for federal regulation. They held that Congress could enact that legislation pursuant to its power to regulate commerce among the several states under Article I, section 8, clause 3 of the Constitution. On the second point, they thought that ever greater inequalities of wealth justified overriding constitutionally protected rights of liberty, property, and contract. In all of this, the "public interest" was to rank supreme. In one sense, the argument was that the interests of some privileged class always came out second in the social calculus. In another sense, the approach appeared even more strident: the public interest was defined in opposition to, rather than as inclusive of, the welfare of the rich and powerful in the social order. So powerful was this urge to regulate ordinary business that Progressives often extended their regulatory impulse uncritically to personal liberties, including reproductive and religious rights, lest protecting those would undermine their program for economic reform.
Keith Burgess-Jackson, J.D., Ph.D. 