Though the Constitution was intended as a barrier against the concentration of power in the federal government, it has been construed by the Supreme Court in ways that facilitate such concentration. Despite the impartiality expected of the judiciary, the Supreme Court is itself an interested party in any case concerning the constitutional division of power, either between state and federal governments or among the executive, legislative, and judicial branches of the latter. Public opinion long stood as a barrier to judicial activism, and the “court-packing” threat of Franklin D. Roosevelt in the 1930s which forced the Court to retreat from “substantive due process” doctrines was evidence of the limits of political toleration and the Court’s reluctance to face a constitutional showdown. Less than twenty years later, however, the Supreme Court was launched on a course of judicial activism which made the earlier courts seem very tame — and there was no similar reaction of public opinion or political leaders. Attempts at restraining the Court or impeaching particular justices — Warren and Douglas being prime targets — were ridiculed for their futility. Partly this may have been due to the fact that the courts were, initially at least, moving with the currents of the time, especially in desegregation. Partly, too, it reflected the growing influence of political and legal “realism” about the impossibility of objective “interpretation” of the Constitution as distinguished from judicial policy-making. As in other contexts, “realism” here meant the acceptance of incremental defects as categorical precedents. A continuum between objective “interpretation” and subjective policy-making was arbitrarily dichotomized in such a way that everything fell on the subjective side. Having proven the impossibility of
Whatever the mixture of reasons and their respective weights, the courts were no constitutional barrier to the concentration of power. In the jargon of the times, they were not part of the solution, but part of the problem.
Historic events also promoted the concentration of power. The Civil War and its racial aftermath, in the South especially, ranged many of the most conscientious people in the nation on the side of federal power against “states’ rights.” The principle of “states’ rights” was generally available only in a “package deal” with racial bigotry, cynical discrimination, and lynchings. In such a package, the principle had no chance of long-run-survival on its own merit vis-à-vis the principle of unrestrained federalism. But every decision increasing federal power at the expense of state power applies to