Earlier today, I posted the full text of Louis Brandeis' address "The Living Law", which is quite an interesting work. On the one hand, Brandeis does accurately capture public feeling regarding mistreatment by their employers. On the other hand, Brandeis' uses this address to stand back, marvel at his own work, and act like an innocent bystander.
The big key in the address is the court case "Muller v. Oregon", to which Brandeis had a hand in. He doesn't mention that in the address.
The Muller case is important because of the famous(I prefer to look at it as the infamous) 'Brandeis Brief'. Brandeis himself notes the importance of the repercussions of the case in his own writing, I encourage you to read it. To summarize, just a few years after the Lochner and Ritchie cases the courts reversed themselves in regard to legal working hours.
The Brandeis Brief is another great example of what I wrote regarding John Dewey. I will summarize this so that I can move forward. Not all that encompasses progressivism is written in their words, there is also their deeds. In other words, early progressivism is only partially quotable. The real danger of progressivism is the culture of progressivism. The Brandeis Brief is an exemplary example of propaganda by deed. Norman Risjord, in his book Populists and Progressives (page 177), explains this fairly well. Brandeis saw an opportunity and exploited it. Here's how this particular situation works:
1) Louis Brandeis engages in propaganda by deed, abusing the legal system in Muller v Oregon to achieve a particular end.
2) He then publishes his essay on 'The Living Law', which mates the propaganda to the deed and complete the process.
It's a two part activity split apart by 8 years. This also shows the patience progressives have in subverting our way of life.
As to how this plays into the 'living and breathing Constitution', it has been via the courts more than any other that the progressives have had their greatest success in breaking apart the protections that are there in the document to defend we the people against an out of control government. What the Muller case ends up achieving is one break-away, free from constitutional constraint. Peckham's dissent was not an open invitation, yet Brandeis walked through the door anyways. The end result is that instead of the Constitution itself being the de-facto standard by which law is decided, the tit-for-tat comings and goings of the employee vs the employer become the sole standard.
Voila, living and breathing law under a living and breathing constitution. At this point, progressive judges and legalists are not honestly using the constitution as a model, they're pulling quotes and 'sound bites' out of it in order to advance their viewpoints.
A few other things of note: The Supreme Court does not have to hear all cases. It can pick and choose, and defer back to the states. The states have their own constitutions for such things. This sort of nationalism has taken place because the progressives have no use for, as Theodore Roosevelt put it, "squabbling contemptible commonwealths".
Other such court cases which have broken the courts away from constitutional constraint include the J. W. Hampton, Jr. & Co. v. United States case.(1928)
Again, we see the patience of progressives on display. Hampton was 20 years after Muller.
For additional background on how progressives moulded our Constitution into a 'living and breathing' document, see one of the two study papers I have written: Honestly questioning the notion of a Living and Breathing Document - The British Constitution.
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