Abstract
Who makes decisions when an essential, constitutional 'handbook' has failed to describe any exceptional situation? Is it fair to place power in the hands of a few specific people to decide? This article illustrates how the US Supreme Court has modernized and reconstituted the US Constitution to make it compatible with an emerging twentieth-century regulatory state and the attendant public functions within the 'state'. The article examines the relationships among legal, social, political, and economic changes in the process of the modern evolutionary state. The paper represents a theoretical attempt to relate constitutional growth and evolution to the development of a constitutionally legitimized 'positive', 'regulatory', or 'welfare' state, and concludes that constitutional fluidity and flexibility are potential sources of empowerment, while incremental constitutionalism with regard to the welfare state is probably the best possible strategy to adopt in American modernity.
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