Populist and Progressive Strands in American Constitutionalism

Modern constitutional law can best be understood as the product of conflicting populist and progressive sensibilities with deep roots in the nation’s past. Populist and progressive versions of constitutional law stem from different versions of the corruption that the Constitution should address. For progressives, corruption consists of contamination of government expertise by ignorant and prejudiced mass opinion. In contrast, populists distrust rationalistic, elite opinion. The corruption they fear is elite government control that leads to the oppression of ordinary people by “their betters.” Progressive “civil liberties” focus on protection of government from mass hysteria and prejudice, while populist “civil liberties” focus on protection from government dominated by elites. This Article examines how this conflict has played out throughout the twentieth century, with special emphasis on some iconic cases and events: the Scopes Monkey Trial, Buck v. Bell, Skinner v. Oklahoma, West Virginia State Board of Education v. Barnette, and the Warren Court experience. It then discusses the reasons why, in modern times, populist constitutional discourse has migrated from the left to the right side of the political spectrum. A conclusion explores strategies for patching together a renewed alliance between populists and progressives