It’s Not Your Father’s Progressivism Either

Few political movements can boast a history of uninterrupted consistency, and this is no less true of Progressivism than of conservatism or any other –ism. While Prof. Upham’s discussion of the Progressive belief in History and the Volkgeist works for the original, authentic Progressives, I think it underestimates the degree to which Progressivism changed in the past half-century.

Woodrow Wilson could think unashamedly in terms of the Spirit of the People manifesting itself in collective action, but today’s Progressives do not think that way. They are, rightly, haunted by the experiences of World War II and the Civil Rights Era. Those episodes led Progressives to reintroduce certain elements of Good Old Fashioned Classical Liberalism into their creed—haltingly, and inconsistently, but still to everyone’s benefit. Today’s Progressives are rightly ashamed of much of their history—trying, for instance, to pretend that segregation was imposed by capitalist business tycoons instead of by Democratic Party reformers—and have, in an inconsistent and ultimately incoherent fashion, returned to some of the principles of liberty and equality that previous generations of Progressive leaders rejected.

That’s why it’s unconvincing for Prof. Upham to try to label the movement for marriage equality as the natural outcome of Progressivism. Look at a case like Goodridge v. Massachusetts Department of Health—an excellent, entirely convincing piece of reasoning which was ludicrously derided as an exercise in “judicial activism” when it was decided. Goodridge never speaks of any Hegelian process of Historical ramification. Instead, the court says—consistently with centuries of Anglo-American common law and the classical liberalism of the Declaration—that government restrictions on individual liberty must be justified by some realistic public purpose, as opposed to the arbitrary distaste of political elites. The court then goes through the various justifications advanced in support of prohibiting same-sex couples from marrying, and correctly finds them wanting. For instance, opponents of marriage equality argued that marriage was an institution designed to foster child-rearing. Yet child-rearing plays no necessary part in marriages, since infertile couples can marry or stay married, and same-sex couples are allowed to adopt. After examining in turn each justification offered for limiting the rights of same-sex couples, and finding each one unpersuasive, the court concluded that the restriction was arbitrary and therefore did not qualify as the due process of law to which all persons are entitled. This is Good Old Fashioned Classical Liberalism, not Progressivism.

One complicating factor in all of this is that Progressive doctrine is so malleable that it can easily be bent to serve a politically palatable outcome, and as a result, classical liberal theory is sometimes articulated in Progressive jargon. Lawrence v. Texas and Griswold v. Connecticut are good examples. These cases simply, and rightly, held that the state may not deprive people of liberty arbitrarily, and that the government’s mere distaste for a person’s actions—sex in the privacy of one’s home which politicians have decreed off limits—is arbitrary. In those cases, as in Goodridge, the state had prohibited private conduct that harmed nobody simply as an act of power—as an ipse dixit—though hidden under a pretext of protecting the public from some kind of harms. The Court saw through those pretexts and invalidated the laws—again, an exercise in ordinary classical liberalism. Sadly, because the Court is so Lochner-phobic that it saw fit to couch its reasoning in the jargon of Progressivism, or in silly terms like penumbras and emanations. But underneath that disguise, these decisions fit comfortably within the centuries-old Due Process of Law tradition.

It’s actually much harder to classify such decisions with the tradition of original Progressivism, not only given the fact that they run so strongly counter to majority will, but also because the original Progressives were actually quite Puritanical about sex. They even tried to make divorce illegal. As I’ve said, modern conservatives are much more Progressive than they often realize. The law struck down in Lawrence, for instance, was entirely in the Progressive vein. Whatever one thinks of the privacy rights revolution of the 1950s, the sexual revolution of the 1960s, and the decision in Lawrence v. Texas, they are not authentically Progressive. They are libertarian. To the degree Progressives have made room for any amount of libertarianism on their platform, they deserve praise.

Yes, the older variety of Progressivism is certainly alive and well. The notion that health care, for example is a “right”—provided by the state with funds forcibly seized from people’s earnings, and shoved down their throats in the form of government mandates—depends on the Progressives’ redefinition of “rights” as privileges given by the government. That’s certainly something Wilson, Brandeis, and their generation would have recognized. But as I noted earlier, Progressivism went through some healthy changes in the years following World War II. Liberals realized that there are such things as inalienable human rights that no state may justly abridge. The only regret is that they persist in blindness to the importance of other rights, such as private property and economic liberty.

 

Also from This Issue

Lead Essay

  • It’s Time to Ditch “Judicial Restraint” by Timothy Sandefur

    Left and right agree that activist judges are bad. But the concept of activism is ultimately quite fuzzy, and it may even interfere with the work that judges should be doing. When courts defer too much, the legislature’s power grows beyond its constitutional bounds. Answering the question of how active our judges should be requires answering what exactly they should be doing; Sandefur’s answer is that judges should strenuously enforce the Constitution against the other branches of government. Failing to do so not only leaves bad law in place, it thwarts the will of the people as expressed in the Constitution.

Response Essays

  • Activism and Restraint by Kermit Roosevelt III

    Kermit Roosevelt III discusses judicial activism and restraint. He finds neither is always appropriate: A theory of when judges properly strike down laws will not necessarily hang on how many laws they strike down. Judges, though, are not necessarily better at deciding economic questions, and they may do harm either by upholding or by striking down a law. Either of these harms may fall on powerless minorities. Identifying legislation that is simply the product of favoritism or rent-seeking is an enduring challenge, not one that can be settled with a theory of activism or restraint.

  • Why Judicial Restraint Best Protects Our Rights by Sandhya Bathija

    Sandhya Bathija argues that restrained courts have done best to protect rights from the interests of the wealthy and powerful. Among the three branches of government, Congress has done the most to rein in the power of big business, and this is overwhelmingly for the good of the people. That result shouldn’t be so surprising, as Congress is the most democratic branch of our government. Sandefur’s vision of the judiciary would paralyze the federal government and would constitute “an assault on people with disabilities, racial minorities, women, LGBT Americans, and the poor.”

  • Let’s Keep (Some) Judicial Restraint by David R. Upham

    David R. Upham argues the Founders intended a significant democratic element to our Constitution; fidelity to it requires some judicial restraint. The branches of the federal government are coequal, and deference to elected legislatures is consistent with the Founders’ principles. It is also reasonable, in that legislatures cannot act before they have cleared significant procedural hurdles, increasing the chance that their work will reflect considered judgment about the Constitution. Examples of improper but democratically enacted legislation oppressing minorities so far advanced have been inapposite.

The Conversation