The Progressive Era Revolution

Progressive Era reformers hoped to rewrite the Constitution through constitutional amendment. The democratic reforms that they achieved are well known. But what about their failures?

Twenty-first century contention over the role of the U.S. Supreme Court is not new. Since the framing of the U.S. Constitution, the judiciary has proven the most controversial branch. The history of proposed–failed–constitutional amendments suggests that the idea of judicial supremacy sparked major debate during the Progressive Era.

Between about 1890 and 1920, Progressivism was pervasive across the parties. Progressives managed to advance, and ratify, four constitutional amendments between 1913 and 1920, from the Sixteenth (granting Congress the power to levy an income tax) to the Nineteenth (guaranteeing women the right to vote). Among their many reforms, Progressives hoped to democratize all the branches of government, as reflected in the Amend Project’s congressional amendment proposals dataset. To that end, their most important achievement was the direct election of senators achieved in the Seventeenth Amendment. But their failures, too, have shaped American political discourse in the last century. Those failures include attempts to curb the powers of the judiciary.

Progressives, as described by historian Stanley P. Caine, hoped to establish “more direct democratic control over the government.”1 The Seventeenth Amendment constitutionalized the direct election of senators and advanced this general goal. As seen in Graph 1 below, the number of amendment proposals made by the Senate had a sizable increase during the rest of the Progressive Era after the passage of the Seventeenth Amendment in 1913.

For example, multiple amendment proposals made by the Senate attempted to constitutionalize prohibition, a major issue for the Progressives. In fact, the amendment proposal that became the 18th Amendment, proposed on April 4th, 1917, was proposed by Senator Morris Sheppard of Texas.2 Other proposals made by Senators included proposals constitutionalizing women’s suffrage and providing for the popular election of the president, such as this proposal by Senator Emerson of Ohio on December 17th, 1915: “The executive power shall be vested in a President of the United States of America. He shall hold date for President of the United States receiving the largest number of votes of the electors of all the States shall be declared elected President, and the candidate for Vice President of the United States receiving the largest number of votes of the electors of all the States shall be declared elected Vice President.”3

Though these more progressively-minded amendment proposals in the Senate are not the only measure, this may suggest some success in the democratization process, as the Senate seemed to better follow the popular drive toward constitutional change after the amendment’s passage. Other scholars have performed more comprehensive studies of the behavioral change of the Senate after the amendment passed; they find that mass electoral politics played a greater role in Senators’ decision-making after 1913, including in private bill sponsorships and roll-call voting participation.4

Progressives also made repeated attempts to change aspects of the judicial branch of government through the process of amendment, none of which were successful. Especially during the years 1910–1916, Progressives, including Theodore Roosevelt, pushed back against conservatives’ traditional view that the judges’ decisions on the law were final and could produce a “judicial veto” to which we are now accustomed.5 Roosevelt represented Progressives’ apprehensions when he condemned the “peculiar function of the American judge, the function of no other judge in the world, the function of declaring whether or not the people have the right to make laws for themselves on matters which they deem of vital concern.”6

Graph 2 below shows the number of amendment proposals relating to the judiciary by the House and Senate for the years 1890-1935. There seems to be a spike in proposals in both houses of Congress around 1900–1915, especially in the House, which then peters off by about 1915, remaining low through 1935. Many of these proposals (examples below) included differing means of curbing the power of the judiciary through limiting judicial supremacy.

About 50% of the amendment proposals between 1900–1920 relating to the judiciary concern the selection of judges, in which members of Congress attempted to establish their power to elect Supreme Court Justices and federal judges. This includes proposals such one made by Senator Reed of Missouri on April 7th, 1913: “The judges, both of the Supreme and inferior courts, shall hold their offices for a term of twelve years ... No Act of Congress or of the general assembly of any State shall be held by the Supreme Court to be unconstitutional or invalid unless the decision be concurred in by two-thirds of all of the members of the court.” Under the terms of this proposal, Congress would claim the power to set term limits for judges and limit the courts’ power to declare laws unconstitutional, securely establishing their jurisdiction over the branch.7

Other proposals imagined a radically different judicial system, such as in this proposal made by Congressman Lamar of Florida on December 9th, 1907: “Congress shall divide the United States into nine circuits for each of which a justice of the Supreme Court shall be elected. They shall choose a chief justice from their own number. The judges of the Supreme Court and all other courts shall hold for eight years and be elected for their respective circuits and districts by the voters qualified to vote for Members of the House of Representatives.”8 These proposals turned the judiciary into an electoral system based geographically, following the model of the circuit court system. The judiciary's power would come more securely from the people (in their election) and each Justice's power would be limited due to a term of eight years.

Term limits proved an important consideration for Progressives; in fact, most of the amendment proposals related to the judiciary during this era discuss term limits. Some stipulate that Supreme Court Justices maintain a lifetime appointment on “good behavior,” while other judges have terms outlined by Congress; others include term limits for all Justices and judges, among other variations. Out of the 51 amendment proposals related to the judicial branch during the Progressive Era, most contain a delineation of terms for judges: six, eight, ten, or twelve years. Graph 3 below marks the exact number of proposals containing one of these numbers in their full text for the years 1890–1920. Some proposals contain different term limits for different types of judges, so some of the 51 proposals are overcounted. Legislators seemed to gravitate toward this check on power that allowed the judiciary to change more frequently.

Around the year 1915, legislative activity surrounding these attempts slowed down significantly. Woodrow Wilson, elected president in 1912 and again in 1916, popularized a different Progressive view of the role of the judiciary in the Democratic Party. He came into office in 1913 with a Democratic majority in both houses of Congress, for the first time since 1893. This majority was strengthened in 1915 with the 64th Congress, bolstering Wilson’s influence in the Democratic Party.

Wilson rejected the idea of “judicial recall” that Roosevelt and other Progressives had supported as a form of popular supremacy through a check on the power of the judiciary. Instead, he focused on the makeup of the Court and the Justices themselves as generational representatives adapting the laws to the evolving country. With this change in rhetoric, Wilson’s idea of a “living Constitution” replaced the Progressive campaign to restructure the judiciary.9