Constitutions built upon a separation of powers were not made to last. The conceit that executive and legislative branches of government might be set in equipoise, and balance each other off over the decades, was amusingly mocked by Oliver Wendell Holmes, Sr. in The Deacon’s Masterpiece (1858):
Have you heard of the wonderful one-hoss shay,
That was built in such a logical way
It ran a hundred years to a day…?
The secret to building a carriage, the Deacon thought, was to make each piece as strong as the rest, so that no one part wears out first. And as there’d never be a weakest spot, the shay would go on forever, just like the imagined Madisonian Constitution. Well, it lasted and lasted, the talk of the town, until 100 years to the day it all collapsed at once and the new owner found himself sitting on a pile of ashes. No part wore out first. Everything went simultaneously. “End of the wonderful one-hoss shay. Logic is logic. That’s all I say.”
Progressive intellectual leaders warred with the U.S. Constitution at the turn of the 19th Century. While conceding that the Constitution was an advance on its alternatives in 1789, Progressives criticized the constitutional system for having too many checks and balances relative to the needs of the modern times of the late-19th and early-20th centuries. Bicameralism, judicial review, the powerful congressional committee system, Progressives argued that all of these had the effect of checking good laws as well as bad. Progressive Sen. George Norris of Nebraska frankly argued that the constitutional system resulted in the enactment of too-little legislation relative to public need.
While effective, amending the Constitution proved too difficult in practice to achieve many of the Progressives’ goals. One means to accomplish Progressive legislative goals without the difficulty of constitutional amendment was the Progressive legal argument that judges should reflexively defer to legislation enacted at both the state and the national level.