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determine what powers are to be exercised under the Constitution, they by the same token determine also the adequacy of the Constitution in respect of the needs and interests of the nation; our conscience in matters of law and our opportunity in matters of politics are in their hands.”10 Moreover, the only legitimate opinions the federal courts can render are those that endorse and promote the expansion of federal power. “[T]hat if they had interpreted the Constitution in its strict letter, as some proposed, and not in its spirit, like the charter of a business corporation and not like the charter of a living government, the vehicle of a nation’s life, it would have proved a straight-jacket, a means not of liberty and development, but of mere restriction and embarrassment.”11

What, then, should guide federal judges if not the Constitution? Apparently their uniquely innate wisdom. Wilson wrote, “What we should ask of our judges is that they prove themselves such men as can discriminate between the opinion of the moment and the opinion of the age, between the opinion which springs, a legitimate essence, from the enlightened judgment of men of thought and good conscience, and the opinion of desire, self-interest, of impulse and impatience.”12

Therefore, the purpose of the judiciary is to sanction, if not clear the path for, the extraconstitutional actions of the federal Leviathan, especially the president. Wilson argued for a judicial oligarchy that would, in essence, sanction the rewriting of the Constitution in accordance with his utopian belief in what Plato characterized in the Republic as an Ideal City. In fact, so difficult are the Constitution’s amendment processes that the courts are encouraged to circumvent them and to be praised when they do. “The character of the process of constitutional adaptation depends first of all upon the wise or unwise choice of statesmen, but ultimately and chiefly upon the option and purpose of the courts. The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretation,—the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by the provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been. The whole business of adaptation has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity.…”13

Even Tocqueville misjudged the federal judiciary’s capacity for steamrolling its way through the Constitution and society. He wrote, “It is true, the Constitution had laid down the precise limits of the Federal supremacy; but whenever this supremacy is contested by one of the states, a Federal tribunal decides the question. Nevertheless, the dangers with which the independence of the states is threatened by this mode of proceeding are less serious than they appear to be.… [I]n America the real power is vested in the states far more than the Federal government.” Tocqueville believed that “[t]he Federal judges are conscious of the relative weakness of the power in whose name they act; and they are more inclined to abandon the right of jurisdiction in cases where the law gives it to them than to assert a privilege to which they have no legal claim” (I, 143).

Furthermore, Wilson’s utopianism necessarily grants Congress extensive and expanded power to legislate without regard to, or over the top of, the states. The entire federalist approach, so crucial during the founding and to the Framers of the Constitution, and without which there would have been no United States, must be demolished. “What, reading our Constitution, in its true spirit, neither sticking in its letter nor yet forcing it arbitrarily to mean what we wish it to mean, shall be the answer of our generation, pressed upon by gigantic economic problems the