Liberty, Prudence, Imperfection, and Law

“Anatomy of a Juggernaut,” By Bradley C. S. Watson

The subtitle of Paul D. Moreno’s new book, “The Twilight of Constitutionalism and the Triumph of Progressivism,” is the thrust of a growing body of revisionist scholarship on the Progressive movement. Moreno adds a valuable historian’s perspective to this scholarship, which is associated largely with the “Claremont school” of political science. He notes the central conceit of twentieth-century American history: the triumphalist portrayal of an ever-expanding national state, one that would finally offer authentic liberty—freeing individuals not only from inequality but from the reactionary idea that human nature itself imposes permanent constraints.

Moreno suggests that the Obama presidency has brought this Progressive narrative squarely before the bar of public opinion. Enduring doubts about the constitutionality of the Patient Protection and Affordable Care Act, commonly known as “Obamacare,” conjoined with concerns about unprecedented levels of government spending, have shown that older notions of constitutional limits still animate at least some citizens. They demand a full hearing for constitutional arguments long after the political classes gave up on such arguments—nowhere better captured than in former Speaker of the House Nancy Pelosi’s dismissive response to a question about Obamacare’s constitutionality: “Are you serious?” she asked, with an incredulous laugh.

Our current situation, says Moreno, is that we occupy a “twilight zone between constitutional and unlimited government.” The political philosophy of the Founders is alive, if on life support. They were neither laissez faire libertarians nor statists, but constitutionalists. Their arguments are echoed today by Americans who believe that the US Constitution has a fixed meaning that binds political actors, a meaning that is informed by a moral and political philosophy anterior to the writing of that document. This view allows that a genuine common good exists, even in the face of considerable individual freedom—and that the government is bound to respect and pursue it. Under this older view, “class legislation” cannot be tolerated.

Moreno begins by considering the “old regime” left by the Civil War Republicans, who embraced the Founders’ constitutionalism even as they adopted Hamiltonian mercantilist economic policies in the midst of the American industrial revolution. He points to the postwar demobilization of the Union Army as evidence of Republicans’ commitment to the Founders’ idea of minimalist federal power. He further argues that the Republican revival of the “American System” of Hamilton and Henry Clay, “based on protective tariffs, banks, and internal improvements,” was largely within antebellum constitutional understandings.

This constitutional consensus gave way rapidly with the advent of “early progressivism,” which came to the fore from 1900 to 1913 under Republican administrations. “Progressivism shared a belief that the old constitutional system was inadequate, and that a significant empowerment of government (at whatever level) was needed. It shared the organic, evolutionary, and historicist features of post-Enlightenment, Romantic Western thought.”

The federal judiciary in the late nineteenth century did not, contrary to scholarly caricature, embrace laissez faire social Darwinism, he says, but rather undertook the honest and difficult task of  keeping governmental power within constitutional limits in a rapidly industrializing America. Moreno makes clear what is by now the emergent consensus among revisionist scholars:

No Darwinism had any impact on the late nineteenth-century American judiciary. . . . Most judges of that era had attended small, denominational colleges untouched by or hostile to historicism, utilitarianism, and Darwinism. . . . the dominant theory in all major schools in the United States . . . reflected a philosophy of “moral realism,” a belief that moral truths existed, could be known, and that happiness consisted in living in conformity with them. . . . What progressives called “laissez-faire constitutionalism” derived from this older tradition of moral philosophy, rather than from any nineteenth-century economic theory, and certainly not from Darwinism.

The author further avers that “what is usually called ‘laissez-faire’ constitutionalism derived from eighteenth-century moral philosophy, supplemented by antebellum equal rights, anti-monopoly, and anti-slavery thought.” This constitutionalism generally allowed the courts to embrace the expansion of state police power for Progressive purposes, only occasionally insisting on constitutional limits, as in the Lochner case.

This observation is again contrary to mainstream history, not to mention the view articulated by the Supreme Court’s first Progressive, Oliver Wendell Holmes, in his famous Lochner dissent, when he claimed that, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” This was not terribly relevant, for Justice Peckham’s majority judgment in Lochner had rested not on newfangled evolutionary theory but on the assumption that “government is limited because free men are capable of governing themselves.”

Nonetheless Teddy Roosevelt called for a radical “New Nationalism,” which came to encompass the demand for popular recall of judicial decisions. The rejection of orthodox constitutionalism was highlighted at the Progressive Party convention of 1912, where Senator Albert J. Beveridge (R-IN), in his keynote speech, rejected the natural rights constitutionalism of the Founders and their idea of equality of opportunity, in favor of equality of result.

“Late” or “advanced” Progressivism, by the author’s reckoning, extended from 1913 to 1933. This phase was led by Woodrow Wilson, who, with his reelection to the presidency in 1916, became less circumspect and embraced in practice what his earlier, scholarly critique of the Founders’ Constitution suggested in theory. Moreno points out that Wilson’s early scholarship was openly critical of the Constitution, arguing against the separation of powers as the Founders conceived it, in favor of a system at once more administratively concentrated and more “responsible” to public opinion than it had been before. He also expressed hostility to the natural rights philosophy of the Declaration of Independence.

It was undoubtedly the case that “Wilson presented a more profound critique of the founders’ Constitution than anything uttered by Theodore Roosevelt.” What was truly remarkable in the political context of the time was that the campaign of the incumbent president, Taft, failed to notice it: “Their anti-Roosevelt passion blinded the Taft constitutionalists to the threat of Wilson, particularly as Wilson avoided the courts.”

The author notes that Wilson rejected Roosevelt’s court proposals during the 1912 campaign but suggests that conserving the judiciary wasn’t Wilson’s motive. More likely, he indicates, Wilson was the patient Progressive, distinguishing the contours of a Progressive jurisprudence long before such jurisprudence became routine. In Wilson’s words, “Law has an infinite capacity for adjustment, providing those who administer the law have a capacity for adjustment.” He seemed to anticipate that, in the fullness of time, judicial bodies would become the natural allies of Progressive forces.

Moreno’s synoptic account—which sweeps across the writings of the “early” and “late” Wilson—is therefore at odds with the lore of mainstream historians who preceded him. There is no fundamentally “conservative” Wilson to juxtapose against the more radical Roosevelt. Each offered his own thoroughgoing, Progressive rejection of the Founders’ Constitution, albeit with different intonations. Late Progressivism—Wilson’s—was about power no less than the earlier version.

Progressive rhetoric about “democracy” often obscured profound progressive suspicion of popular government, since progressives were more interested in powerful government than democratic government. Indeed, the successful use of the formal amending process weakened progressive arguments that the Constitution was unworkably inflexible. Perhaps what made the Seventeenth Amendment a “progressive” measure was its weakening of constitutional limitations, which stood in the way of democratic, monarchical, oligarchical, or technocratic power alike.

Wilson’s 1916 turn toward a more vigorous Progressivism, his move from “New Freedom” to “New Nationalism,” might well have been opportunistic—an attempt to win over Bull Moose voters—but such opportunism would have dovetailed with the unchanging statist philosophy that Moreno sees in Wilson. He understood that his job was to win, but he could only win what history was prepared to accept, and the clearest manifestation of history’s judgment was public opinion.

Moreno maintains that although there was a certain degree of reaction against statism in the 1920s, there was also a maintenance or expansion of the Progressive status quo, even in the face of President Harding’s inchoate suspicion of executive power and Calvin Coolidge’s more thoughtful and principled constitutionalism. (Coolidge, the author notes, accepted the finality of the moral truths expressed in the Declaration of Independence and rejected “progress” away from natural rights.) Progressives had won the day by winning intellectual battles, and winning Congress to boot. Constitutionalism, despite some shallow efforts to reinvigorate it, was dead. Even the Taft Supreme Court—the one to which he appointed five justices and on which he eventually served—did not roll back the Progressive tide. And no Supreme Court could long withstand the fact that the legal academy, itself an artifact of Progressive ideology, had recognized that Progressive judges would go ahead and make Progressive law, if they were consistently educated along those lines.

The Progressive constitutional revolution culminated in the New Deal period, 1933 to 1940. FDR forcefully embraced Wilson’s anticonstitutional ideas, notably in his Commonwealth Club Address given during the 1932 campaign, which laid the groundwork for twentieth-century liberalism. “Roosevelt rhetorically transvalued the values of the Founding, substituting an entitlement-based ethos for the rights-based one of the Founding.” He promised a “redefinition” of the rights outlined in the Declaration of Independence, implying that government was provider rather than protector of rights.

Meanwhile, Roosevelt’s antagonist Herbert Hoover was himself too steeped in Progressive thinking to recognize the depth of FDR’s constitutional critique. He offered only objections without reasons. Other voices cried out in the wilderness. Walter Lippman, a certified Progressive in his younger years who had helped Wilson draft his Fourteen Points speech to Congress, objected to FDR’s court-packing plan and warned of the totalitarian statism that such an act prefigured. “Nearly everywhere,” Lippman remarked, “the mark of the progressive is that he relies at last upon the power of officials to improve the conditions of men . . . all that now passes for progressivism . . . calls for the increasing ascendancy of the state.”

Moreno points out that Lippman saw Progressives as repudiating the noble attempt, stretching back for two millennia, “to find law which would be superior to arbitrary power”—in a word, constitutionalism. Lest there be any doubt about FDR’s intent, Moreno notes that the

craftiness of the court-packing plan has obscured the political philosophy that Roosevelt brought to the fight. His repeated stress on the Court’s failure to “pull in tandem” in the “three-horse team” of the federal government served as a homely metaphor for a deeper, Wilsonian view of the Constitution. Roosevelt rejected the separation-of-powers, checks-and-balances basis of the Constitution for a cooperative, organic one—“the Newtonian for the Darwinian basis of politics,” as Wilson put it.

The cadre of Progressive intellectuals who dominated the 1930s gave plenty of support to this view: natural rights were dead and had to lie down. Constitutional scholar Edward S. Corwin saw the Constitution as an instrument of popular sovereignty dedicated to progress rather than to limiting power. It should not be a “barrier of custom, magic, fetish, tabu,” Corwin said. Believers in the constitutionalism of the Founders were at best premodern cultists and mythologizers and at worst psychologically disordered.

Alas, once a chastened Supreme Court saw that resistance to Progressive constitutionalism was futile, and a reconstructed Supreme Court saw that it was wrong-headed, there was free reign (save for only occasionally recalcitrant public opinion) to complete the Progressive vision of American politics. The defeat of Roosevelt’s court-packing plan turned out to be a long-term victory for Progressivism. It insulated the Court from political pushback; no president has ever directly confronted the Court since with a genuine threat. And, one might add, it is judicial as much as executive power that is now at the vanguard of the continuing Progressive revolution in politics and revolt against natural rights constitutionalism.

Unlike Richard Epstein in his recent book The Classical Liberal Constitution, Moreno does not make the mistake of arguing for judicial power as an antidote to the Progressive reconfiguration of America. Judicial power is part of the problem. It is unlikely to be part of the solution.

This is not an easy read. It moves rather abruptly from jurisprudence to politics and policy and back again, leaving the reader to piece together a consistent account of “the American state” from the mass of historical detail the author brings to the surface. Nevertheless, Paul Moreno has written a powerful rebuke to countless twentieth-century American historians—from the famous public intellectuals to the obscure academicians—who were in deep sympathy with the Progressivism they described and whose works served to mask the depth of Progressivism’s attack on the American Founders and the Constitution they created.

 

Bradley C. S. Watson is Professor of Politics and Philip M. McKenna Chair in American and Western Political Thought at Saint Vincent College. He has authored or edited many books, including Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence (ISI Books), and Progressive Challenges to the American Constitution: A New Republic, forthcoming from Cambridge. This essay was originally published in September 2014 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

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