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FOUNDING LIBERALISM, PROGRESSIVE LIBERALISM, AND THE RIGHTS OF PROPERTY

  • Ronald J. Pestritto (a1)
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1 Democratic Presidential Debate, July 23, 2007, held at The Citadel in South Carolina.

2 Podesta, John, The Power of Progress: How America's Progressives Can (Once Again) Save Our Economy, Our Climate, and Our Country (New York: Crown Books, 2008).

3 It is conceded that some scholars question the existence, or at least the degree, of a distinction between the old liberalism and the new liberalism, suggesting, in some cases, that certain inherent flaws present in the original liberalism are the cause of modern liberalism. For just one example, see Lawler, Peter Augustine, “Natural Law, Our Constitution, and Our Democracy,” in Pestritto, Ronald J. and West, Thomas G., eds., Modern America and the Legacy of the Founding (Lanham, MD: Lexington Books, 2007), 207–37. The particulars of this debate lie beyond the scope of this essay, although by explicating the Progressive assault on the early American notion of property rights, the argument of the essay as a whole weighs against the assertions of Lawler and others.

4 On this, see Myers, Peter C., “Locke on the Social Compact: An Overview,” in Pestritto, Ronald J. and West, Thomas G., eds., The American Founding and the Social Compact (Lanham, MD: Lexington Books, 2003), 135.

5 For my understanding of how state declarations of rights help to illuminate the meaning of the Declaration of Independence, I have profited from West, Thomas G., “Jaffa vs. Mansfield: Does America Have a ‘Constitutional’ or ‘Declaration of Independence’ Soul?Perspectives on Political Science 31 (Fall 2002): 235–46. See also Zuckert, Michael P., The Natural Rights Republic (Notre Dame, IN: University of Notre Dame Press, 1996), 17–20, 33–34.

6 Zuckert, Natural Rights Republic, 79–80.

7 Madison, James, Federalist No. 10, in The Federalist, ed. Carey, George W. and McClellan, James (Indianapolis, IN: Liberty Fund, 2001), 43.

8 In addition to the “republican” school of interpretation, headlined by Wood, Gordon's Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), see Shain, Barry Alan, The Myth of American Individualism (Princeton, NJ: Princeton University Press, 1994); and Reid, John Phillip, Constitutional History of the American Revolutions: The Authority of Rights (Madison: University of Wisconsin Press, 1986).

9 Zuckert, Natural Rights Republic, 108–17, 246 n. 17. Rahe, Paul A., Republics Ancient and Modern (Chapel Hill: University of North Carolina Press, 1992), 555–60. Thomas G. West, “The Political Theory of the Declaration of Independence,” in Pestritto and West, eds., The American Founding and the Social Compact, 98–111, 116–20.

10 Dewey, John, Liberalism and Social Action (1935; Amherst, NY: Prometheus Books, 2000), 1516.

11 Wilson, Woodrow, The State (Boston: D. C. Heath and Co., 1889), sections 17, 18, 21, and 23.

12 Wilson, Woodrow, “What Is Progress?” in Pestritto, Ronald J. and Atto, William J., eds., American Progressivism (Lanham, MD: Lexington Books, 2008), 50.

13 See Goodnow, Frank, Comparative Administrative Law (New York: G. P. Putnam's Sons, 1903); and Goodnow, , Politics and Administration (New York: Macmillan, 1900).

14 Goodnow, Frank, “The American Conception of Liberty” (1916), in Pestritto, and Atto, , eds., American Progressivism, 5559.

15 See, for example, Roosevelt, Theodore, “The Right of the People to Rule” (1912), in Pestritto, and Atto, , eds., American Progressivism, 251–60.

16 Locke, John, Second Treatise of Government (1689), ed. Laslett, Peter (Cambridge: Cambridge University Press, 1960), chaps. 5, 9, esp. sections 26–28, 34, 123–24.

17 Rousseau, Jean-Jacques, Second Discourse (1755), in The First and Second Discourses, ed. Masters, Roger D., trans. , Roger D. and Masters, Judith R. (New York: St. Martin's Press, 1964), esp. 141–42. See also Rousseau, , On the Social Contract, ed. Masters, Roger D., trans. Masters, Judith R. (New York: St. Martin's Press, 1978), esp. 46, 62.

18 Wilson, The State, section 18.

19 Rousseau, Second Discourse, 102–3.

20 Goodnow, “American Conception of Liberty,” 55, 57.

21 Roosevelt, Franklin D., “Campaign Address on Progressive Government,” September 23, 1932, in Rosenman, Samuel I., ed., Public Papers and Addresses of Franklin D. Roosevelt, vol. 1 (New York: Random House, 1938), 749–50.

22 Ibid., 753.

23 Roosevelt, Franklin D., “Annual Message to Congress,” January 11, 1944, in Rauch, Basil, ed., The Roosevelt Reader (New York: Holt, Rinehart, 1957), 347.

24 Locke, Second Treatise, section 6.

25 Locke addresses the historical critique of his state-of-nature thesis in sections 101–18 of the Second Treatise, although the argument I refer to here is based on the logic of the work as a whole. The notion that justice can be found in the particulars of history reminds one of Friedrich Nietzsche's devastating critique of such a notion as an “idolatry of the factual” in Nietzsche, , On the Advantage and Disadvantage of History for Life, trans. Preuss, Peter (Indianapolis, IN: Hacket, 1980), 47—which is not to suggest that Nietzsche had much admiration for Lockean natural-rights theory either.

26 Lincoln, Abraham, letter to Henry L. Pierce and others, April 6, 1859, in Speeches and Writings, 1859–1865, ed. Fehrenbacher, Don E. (New York: Literary Classics of the United States, distributed by the Viking Press, 1989), 19.

27 Dewey, Liberalism and Social Action, 40–41. Dewey's claim here seems to fly in the face of the deep reflection on history exhibited by most of the founding generation. To take The Federalist as only one example, the entire argument can be said to proceed from an understanding of the challenges popular government had faced since the time of ancient Greece, and it draws on the contributions made to the science of politics by thinkers from various points in history. See, for example, Alexander Hamilton, Federalist No. 9, in Carey and McClellan, eds., The Federalist, 37–38.

28 Dewey, Liberalism and Social Action, 41.

29 Wilson, Woodrow, “An Address to the Jefferson Club of Los Angeles, May 12, 1911,” in The Papers of Woodrow Wilson, 69 vols. (hereafter cited as PWW), ed. Link, Arthur S. (Princeton, NJ: Princeton University Press, 19661993), 22:34.

30 Woodrow Wilson, “The Author and Signers of the Declaration of Independence,” in PWW, 17:251.

31 Wilson, The State, 11.

32 Ibid., 13–14.

33 Woodrow Wilson, “The Modern Democratic State,” in PWW, 5:65–68.

34 Wilson, Woodrow, “From Wilson's Shorthand Diary,” July 4, 1876, in PWW, 1:148–49.

35 Wilson, Woodrow, Constitutional Government in the United States (New York: Columbia University Press, 1908), 4.

36 Prominent examples of cases that particularly aggravated Progressives are Lochner v. New York, 198 U.S. 45 (1905), and Hammer v. Dagenhart, 247 U.S. 251 (1918).

37 Theodore Roosevelt, “The Right of the People to Rule,” 251–52.

38 Goodnow, Frank J., Social Reform and the Constitution (New York: The Macmillan Company, 1911), 1, 3.

39 Goodnow, “American Conception of Liberty,” 57.

40 Franklin D. Roosevelt, “Campaign Address on Progressive Government,” 753.

41 I am well aware that the founders did not see the judiciary as the exclusive guardian of fundamental rights, and that there is much debate on how the founders understood judicial review and the role of the courts in invalidating legislation. That debate is well beyond the scope of this essay, and probably beside the point. For us, what is relevant is that the Progressives understood the original conception of the judiciary in this way.

42 See, for example, Ives v. South Buffalo Railroad, 201 N.Y. 271 (1911), where the New York Court of Appeals overturned the state's Workmen's Compensation Act of 1910.

43 “Progressive Party Platform of 1912,” in Pestritto and Atto, eds., American Progressivism, 276.

44 Theodore Roosevelt, “The Right of the People to Rule,” 254.

45 The Fifth Amendment to the U.S. Constitution stipulates that no person shall be “deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment applies that exact language to the state governments, and most state constitutions have a similar provision. Understood in the context of Roosevelt's complaint, the “due process” clause had been employed by courts to protect the liberty interest of individuals against the exercise of regulatory or “police” power by state governments. In the Lochner case, for example, where the state legislature had enacted a law limiting the number of hours bakers could agree to work, the U.S. Supreme Court reasoned that “the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution,” and that “the right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right” (198 U.S. 45 [1905], at 53). The Court continued: “There is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise the Fourteenth Amendment would have no efficacy, and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people; such legislation would be valid no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext—become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint” (id. at 56). With respect to the regulation of bakers' hours, the Court concluded that “there is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker. If this statute be valid, and if, therefore, a proper case is made out in which to deny the right of an individual, sui juris, as employer or employee, to make contracts for the labor of the latter under the protection of the provisions of the Federal Constitution, there would seem to be no length to which legislation of this nature might not go” (id. at 58).

46 Theodore Roosevelt, “The Right of the People to Rule,” 254.

48 Ibid., 257. Roosevelt here echoes the argument of Supreme Court Justice Oliver Wendell Holmes—whom Roosevelt had appointed to the Court—that the Constitution was not built on any political theory and that courts ought not use a theory of the Constitution to strike down legislation. See Holmes's dissent in Lochner v. New York, 198 U.S. 45 (1905), at 75–76. It should also be noted that Woodrow Wilson did not attack the judiciary in the way that Roosevelt did. In this respect, Wilson had more foresight than Roosevelt, for he foresaw the potential for the judiciary to be an agent of progress. There could well come a time, Wilson reasoned, when majority sentiment would lag behind the demands of progress, and that would be a time for judges to step up and take the lead. In any event, Wilson's defense of the judiciary should not be misconstrued; it came not from an attachment to the judiciary as a protector of individuals against Progressive majorities, but instead from a gratitude that the courts had often been willing to read the Constitution flexibly: “We can say without the least disparagement or even criticism of the Supreme Court of the United States that at its hands the Constitution has received an adaptation and an elaboration which would fill its framers of the simple days of 1787 with nothing less than amazement. The explicitly granted powers of the Constitution are what they always were; but the powers drawn from it by implication have grown and multiplied beyond all expectation, and each generation of statesmen looks to the Supreme Court to supply the interpretation which will serve the needs of the day” (Wilson, Constitutional Government, 157–58). Wilson, in other words, was able to see past the immediate sins of the Court during his own day, and to understand (correctly, as it turns out) that the Court was fundamentally a progressive institution—that it had helped the country to escape the bonds of its original constitutionalism, and would likely be a force for a similar kind of progressive change in the future.

49 Madison, Federalist No. 10, 43.

50 Roosevelt, Theodore, “The New Nationalism” (1910), in Pestritto, and Atto, , eds., American Progressivism, 214–15 (emphasis added).

51 Ibid., 217.

52 Goodnow, “American Conception of Liberty,” 57.

53 Theodore Roosevelt, “The New Nationalism,” 217 (emphasis added).

54 Ibid., 220.

55 Specifically, in Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 (1895), the Supreme Court had ruled that federal taxes on income derived from interest, dividends, and rents were “direct” taxes and thus were constitutionally required to be apportioned among the states on the basis of population. Taxes on wages were still considered to be indirect, and thus not subject to the apportionment requirement. Pollock thus made the question hinge on the source of income. In order to nullify this point, the Sixteenth Amendment declared that taxes on income, “from whatever source derived,” could be levied by the federal government “without apportionment among the several States, and without regard to any census or enumeration.”

56 See, for example, the relevant works in the Social Gospel movement, which constituted the religious arm of Progressivism. Particularly revealing is Rauschenbusch, Walter, Christianizing the Social Order (New York: The Macmillan Company, 1912), 419–29, where Rauschenbusch calls for the government to “resocialize property.”

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