II. Locke and Classical Liberalism

Most historians agree that John Locke had an enormous influence on the Founding generation. “By the late eighteenth century,” Pauline Maier observed, “‘Lockean’ ideas on government and revolution were accepted everywhere in America: they seemed, in fact, a statement of principles built into the English constitutional tradition.”Footnote ¹⁵ Among these Lockean precepts was a belief in natural law that embodied certain individual rights which existed before the formation of political authority. Important among these was the right of private property ownership. Locke viewed private property as a necessary component of individual liberty. He further articulated the social contract theory under which legitimate government was grounded on an implicit compact between the people and their rulers. According to Locke, government was primarily instituted to safeguard the natural rights of individuals. Both the natural law and social contract doctrines stressed protection of individuals by limiting governmental power, which was seen as the greatest threat to individual liberty.Footnote ¹⁶ Locke's classical liberalism, with its focus on natural law and the rights of individuals, was reflected in the Declaration of Independence as well as the constitution-drafting experience at both the state and federal level in the years following the American Revolution.Footnote ¹⁷ The Bill of Rights also manifested a Lockean spirit, providing additional safeguards for individual liberty and private property.

Building upon Locke's philosophy, Anglo-American constitutional thought had long emphasized individual liberty and the close tie between liberty and private property. For example, the 1776 Virginia Declaration of Rights proclaimed: “All men … have certain inherent rights, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”Footnote ¹⁸ Members of the 1787 Constitutional Convention repeatedly stressed the tie between liberty and property.Footnote ¹⁹ The close association between liberty and property prevailed throughout the nineteenth century.Footnote ²⁰ As John Dewey (1859–1952) noted: “The concern for liberty and for the individual, which was the basis of Lockean liberalism, persisted.”Footnote ²¹ A New York judge provided a thoughtful analysis of the values which characterized American society during the nineteenth century:

Not until the end of the nineteenth century did a political and constitutional order based on individual rights come under prolonged attack. The transformation of the economy and the rise of large-scale business enterprise caused some to reconsider Locke's assumptions about liberty. Howard Gillman has argued: “… the last quarter of the nineteenth century witnessed changes that crushed the Lockean state of nature that inspired many of America's founders….”Footnote ²³ Moreover, with the rise of social science and new schools of jurisprudence, natural law theory fell out of favor. Oliver Wendell Holmes (1841–1935), for instance, famously ridiculed the concept.Footnote ²⁴ The doctrine of natural rights, Charles A. Beard (1874–1948) declared in 1908, “really furnishes no guide to the problems of our time.”Footnote ²⁵ Beard approvingly noted that there were decreasing references to natural law in political writings and suggested that at best natural rights were merely moral aspirations. By 1900 classical liberalism found itself on the defensive.

III. The Initial Assault

Attacks on individualism and private property can be traced to eighteenth-century France and such writers as Jean-Jacques Rousseau (1712–1778), with his insistence that the general will must triumph over individuals. Under the notion of the general will the collective spirit of the community must prevail over all claims of individual rights.Footnote ²⁶

Perhaps a better starting place for this inquiry, however, would be the publication of Edward Bellamy's Looking Backward 2000–1887 in 1888.Footnote ²⁷ In this futuristic novel Bellamy pictures a socialist utopia set in the then far away year of 2000. The government is the sole landowner and employer, providing a guaranteed maintenance for all citizens by means of an annual credit card. There is no money, and no private property beyond personal belongings. Competition is dismissed as wasteful. This utopia is a highly regimented society in which both young men and women must serve in an industrial army until the age of forty-five. Additionally, Bellamy sketches a centralized society. The individual states are abolished and decisions are made by shadowy councils and bureaus. There is only a limited degree of popular control over the government. Most striking for our purposes is that Bellamy repeatedly criticizes individualism, which he contrasts unfavorably with the cooperative society of the future. Moreover, he decries “the imbecility of the system of private enterprise.”Footnote ²⁸

There was a long tradition of utopian literature but Looking Backward stands out because it was a huge success. The book sold thousands of copies, was compared in its influence to Uncle Tom's Cabin, and stimulated the formation of clubs to promote Bellamy's socialist vision.Footnote ²⁹ As might be expected, the volume had its share of critics, and it appears neither realistic nor appealing to modern eyes. Nonetheless, Bellamy's critique of individualism and his utopian fable attracted a host of readers in the Gilded Age (1875–1900). Clearly there were people receptive to Bellamy's call for a different type of society. Many followers of Bellamy were attracted to the Populist movement of the 1890s. By the same token, other citizens were alarmed. Protesting a New York scheme to regulate grain elevator prices, Justice David J. Brewer warned that a state might seek to control prices for all services and uses of property. “And if so,” he lamented, “‘Looking Backward’ is nearer than a dream.”Footnote ³⁰

IV. Sources of Progressive Thought

The rapid changes in American society at the end of the nineteenth century stimulated the Progressive movement. Still, the economic and social conditions did not dictate the particular direction of reform efforts. To understand the Progressive mentality one must probe the formative influences which guided the movement. One wellspring of Progressivism was an unlikely source: Imperial Germany. A number of individuals who were later leaders of the Progressive movement, notably Richard T. Ely (1854–1943), pursued graduate study in Germany.Footnote ³¹ They were impressed with the steps taken by Chancellor Otto von Bismarck (1815–1898) to deal with social problems arising from industrialization. Bismarck not only centralized the German nation, but introduced social welfare measures, such as pensions and laws protecting industrial workers. He was able to effectively impose this social legislation and tolerated little dissent. Bismarck's purpose, of course, was to forestall greater socialism by undercutting the political Left within Germany through governmental largess. He had little interest in nurturing either democracy or individual liberty. Nonetheless, Bismarck's legacy significantly influenced American Progressivism to look favorably upon the construction of a powerful welfare state.

Another admirer of Bismarck was Herbert Croly, who helped to formulate Theodore Roosevelt's New Nationalism policy and was a founder of the New Republic. Although Croly never studied in Germany, he was an enthusiast for Bismarck's program. Among the leaders of the modern German nation, Croly wrote in The Promise of American Life (1909), “The man who planned most effectively and accomplished the greatest results was Otto von Bismarck.” Croly pointedly observed that Bismarck rejected the nation-building path of allowing “the individual every possible liberty.”Footnote ³² Instead, Croly explained at length:

Note Croly's emphasis on organization, planning, and a strong executive, as well as his dismissal of democratic individualism. As we shall see, these themes figure prominently in Croly's Progressive creed. For many Progressives, Bismarck's Germany became the model for a reformed United States. Amusingly, with the outbreak of World War I many Progressives found it convenient to forget the German inspiration for their social policies.

In addition to faith in planning and scientific government, Progressive thought was shaped by the emergence of the Social Gospel theology. The Social Gospel movement had a significant impact on Protestant Christianity in the early twentieth century. Moving away from a focus on individualistic pietism, Social Gospel adherents sought to adjust Christianity to the insights of evolutionary science. Emphasizing the need for a changed social and economic environment rather than personal regeneration, they advocated action by government to alleviate social problems. They were especially concerned about the conditions of industrial workers and urban housing, and were generally hostile to laissez-faire economics. Indeed, some Social Gospel theologians, notably Walter Rauschenbusch (1861–1918), advocated a form of Christian socialism.Footnote ³⁴ Broadly speaking, Social Gospel leaders rejected economic competition and the market in favor of a cooperative society. In order to transform the political and social environment, Social Gospel advocates called for governmental action. “Since the Christianizing of the social order was a central component of social Christianity,” one scholar stated, “it was essential for the movement to find some way to relate to the political life of the nation.”Footnote ³⁵

One consequence of the Social Gospel theology was a blending of Christianity with the Progressive political agenda.Footnote ³⁶ Not surprisingly, a number of prominent Social Gospel figures spoke in favor of a variety of social causes and became involved in Progressive era political life. The Social Gospel outlook left a deep mark on Progressivism by imparting a moralistic tone to the movement.Footnote ³⁷ Calls for regulatory intervention in the economy were cloaked in a Christian message. Recall that the two presidents most closely associated with the Progressive movement, Theodore Roosevelt and Woodrow Wilson (1856–1924), often employed messianic rhetoric and depicted their programs in religious terms.Footnote ³⁸ Wilson apparently viewed himself as an instrument of God. This moralistic dimension of the Progressive movement is another marked difference between Progressives and post-World War II liberals, who largely jettisoned explicit religious appeals.Footnote ³⁹

The most important aspect of the Social Gospel movement for our purpose was its repeated denunciation of individualism as a basis for society. In 1889 Gladden declared: “It begins to be clear that Christianity is not individualism. The Christian religion has encountered no deadlier foe during the last century than that individualistic philosophy which underlies the competitive system.”Footnote ⁴⁰ In the same vein, Rauschenbusch proclaimed in 1896 that under current economic conditions “individualism means tyranny.”Footnote ⁴¹ Returning to the same theme a decade later, Gladden insisted: “I do not believe that political society or industrial society or any other society will endure on a purely individualistic basis.”Footnote ⁴² In 1914, as Social Gospel thinking approached the height of its influence, one organization affiliated with the movement boldly proclaimed: “We believe that the age of sheer individualism is past and the age of social responsibility has arrived.”Footnote ⁴³

V. The Apotheosis of Government

While hardly alone, Croly was among the most influential intellectuals to tackle Progressivism. In two revealing books, The Promise of American Life (1909) and Progressive Democracy (1914), he explored the meaning and purpose of the movement. Croly called for a new social order to redress the imbalances in economic and political power that he attributed to the emergence of large-scale business organizations. His remedy was to strengthen governmental authority, a step which would allow Americans to realize the “national purpose” and “the idea of social justice.” Advocates of Progressivism, Croly explained, “are committed to a drastic reorganization of the American political and economic system, to the substitution of a frank social policy for the individualism of the past, and to the realization of this policy, if necessary, by the use of efficient governmental instruments.”Footnote ⁴⁴ Whereas the framers of the Constitution were suspicious of government as a potential threat to liberty, Croly welcomed expanded government. He made clear his impatience with constitutional doctrines that restrained the role of the national government.

Several aspects of Croly's thought warrant further attention. He was an unstinting cheerleader for vigorous executive power modeled after Theodore Roosevelt. “Progressive democracy needs executive leadership,” Croly insisted, because “it organizes and vitalizes the rule of the majority.”Footnote ⁴⁵ He added: “As a consequence of bestowing the leadership of the state upon one man who represents the dominant phase of public opinion, it develops and consolidates majority rule as it has never yet been developed and consolidated in the history of democracy.”Footnote ⁴⁶

Croly was also a proponent of centralized government, and saw a diminished role for the individual states. “The state governments, either individually or by any practicable methods of cooperation,” he observed, “are not competent to deal effectively in the national interest and spirit with the grave problems created by the aggrandizement of corporate and individual wealth and the increasing classification of the American people.”Footnote ⁴⁷ Croly maintained that changes in the economy had rendered obsolete the distinction between interstate and intrastate commerce, and that consequently all commerce should be under national control. He even questioned whether marriage should remain a state responsibility.

In fashioning his proposed economic policy, Croly lost no opportunity to denounce competition. He regarded big business as efficient and a major contributor to economic growth. He believed that such organizations should be accepted as part of modern life. Croly therefore argued that it was both foolish and futile to attempt to break up large business enterprises. He called for repeal of the Sherman Anti-Trust Act, and urged instead a regime of regulation by commissions. Consistent with his preference for collective rather than individual action, Croly declared that “it should be the effort of all civilized societies to substitute cooperative for competitive methods.”Footnote ⁴⁸

To effectuate his vision of good government, Croly stressed the need for increased administrative authority. He lovingly described the independent and efficient agencies that would, in theory, carry out the policies of a progressive democracy. Croly positively gushed in picturing the qualities of his imagined administrative officials. Such an official must be an expert who follows scientific methods, must be reasonable and flexible, must be indifferent to shifts in political opinion, and must generally function as an agent of democracy.Footnote ⁴⁹ Borrowing from the military and perhaps Bismark, Croly suggested that expert administrators “must provide a general staff for a modern progressive state.”Footnote ⁵⁰ Croly was perhaps naively optimistic about the future of the modern administrative state. Fundamental economic problems involved disputes over policy, and could not be removed from the political realm by resort to supposed experts.Footnote ⁵¹ Nonetheless, Croly championed a trained bureaucracy which relied on scientific expertise to solve problems. Like many Progressives, he had great faith in the ability of an educated elite to manage the economy.

Croly's confidence in disinterested experts to effectuate his program highlights an unresolved tension within Progressive thought. Progressives were fond of claiming to represent “the people” and to speak for the popular voice. They sponsored political reforms, such as the direct election of senators, the initiative, and the referendum, in order to promote democratic government. “Progressives often spoke of their commitment to democracy,” Michael McGerr has observed. “But many reformers, so critical of individualism and individual rights, were not very democratic at all.”Footnote ⁵² Hovenkamp reached a similar conclusion: “Progressive Era social sciences were much more paternalistic than democratic…. Almost from the beginning, social scientists were committed to the view that important decisions should be made by experts.”Footnote ⁵³ At root, many Progressives favored governance by educated elites (like themselves) who would lead the nation and guide the political process.Footnote ⁵⁴ This attitude had profound consequences for the polity. Voter participation dropped in the 1912 presidential election, a sign of lack of public interest at the height of the Progressive movement. At least part of the explanation for this decline was the growth of the new administrative state, which removed much decision-making from the political arena. “People saw less reason,” one political historian concluded, “to take part in elections that often produced meaningless results.”Footnote ⁵⁵

Conspicuously absent from Croly's theory of government was any emphasis on individual rights. He tended to associate claims of rights with judicial support for the rights of property owners. For example, Croly gave virtually no attention to racial or gender issues,Footnote ⁵⁶ or to the role of expressive freedom. As we have seen, there was a pervasive hostility to individual rights among leaders of Progressivism. In their view, rights were grounded in natural law, which most Progressives rejected. Further, rights claims could well stand in the way of realizing their conception of a good society. Individual rights, therefore, must be curtailed for the benefit of the nation.This helps to explain the Progressive strictures against individualism, because that concept denoted a society focused on individual rights.Footnote ⁵⁷

Croly did not overtly attack private property ownership, but his statist philosophy entailed diminished respect for property rights. He complained that the legal system in practice “is tantamount to automatic operation in the interests of existing property owners.”Footnote ⁵⁸ He vaguely urged “the radical transformation” of the institution of property, but made clear that he favored its modification not elimination.Footnote ⁵⁹ Croly also called for a more equal distribution of wealth, a proposal that would threaten existing ownership rights to some extent.Footnote ⁶⁰ It is fair to conclude that Croly never systematically addressed the issue of property rights in his notion of progressive democracy, but he certainly intimated that property, like other individual rights, was subordinate to the public will.

Obviously Croly has wandered intellectually from the fear of arbitrary government which animated classical liberalism. Indeed, in the 1920s Croly, like a number of Progressives, found much to admire in the Italian fascism of Benito Mussolini (1883–1945). Croly saw in fascism an exciting experiment under the guidance of a strong leader. To his mind, fascism offered a seemingly rational scheme of economic planning, known as corporatism, which promised a middle path between Marxism and individualistic capitalism. In addition, it appeared to bridge the gap between social classes. While recognizing the warts of the fascist movement, Croly nonetheless reacted positively to the fascist attempt to remake Italian society.Footnote ⁶¹

Another important figure in shaping Progressive thought was Richard T. Ely. Educated in Germany and affiliated with the Social Gospel movement, Ely was an influential economist at Johns Hopkins and the University of Wisconsin as well as a founder of the American Economic Association.Footnote ⁶² His numerous writings blended scientific inquiry with ethical and Christian preachments.Footnote ⁶³ Ely consistently advocated a statist approach to social problems. Indeed, he tended to exalt the state as a means to reform the society. As one scholar stressed:

Drawing upon Darwinian theory, Ely rejected the Lockean concept of natural rights and denied the existence of natural law. In Ely's estimation, private economic power, not the state, was the primary threat to individual liberty. Contrary to Locke, Ely maintained that property and contract were products of society created for “social purposes.”Footnote ⁶⁵ It followed that society could regulate or even abolish private property and contracts. Ely, in the words of one commentator, “had little loyalty or nostalgia for the older individualistic America of the early nineteenth century.”Footnote ⁶⁶

As might be expected, Ely regularly lambasted economic competition and what he perceived as laissez-faire capitalism in the United States. Sympathetic to socialism, he urged public ownership of railroads and “natural monopolies.” Still, Ely stopped short of a full endorsement of socialism and seemed to be searching for some middle path between socialism and capitalism.Footnote ⁶⁷ Like Croly, he favored regulation rather than an antitrust programs to break up large enterprises.Footnote ⁶⁸ Again like Croly, he gave little attention to the plight of racial minorities,Footnote ⁶⁹ and at times was openly hostile to civil liberties claims.

Woodrow Wilson's relationship to the Progressive movement has long perplexed historians, and they have failed to achieve any consensus. Until about 1908 Wilson appears to have been a conservative Democrat, supportive of states' rights and free markets, and suspicious of expanding governmental power. As he became more active in the political arena, however, Wilson gravitated gradually toward Progressive ideology. Whether this shift was motivated by political expediency or by principled conviction remains a matter of debate.Footnote ⁷⁰ Certainly Croly and other Progressive intellectuals, who had given their hearts to Roosevelt, were initially skeptical about Wilson and his New Freedom program. Although as president Wilson successfully promoted such Progressive measures as a reduced tariff and the Federal Reserve System to oversee banking, leading Progressives continued to bemoan his reluctance to endorse more pervasive governmental intervention in the economy.Footnote ⁷¹

In contrast to Croly and Ely, Wilson often spoke in terms of individual rights. At the center of his New Freedom program in 1912 was a pledge to destroy monopolies and restore competition. He championed “the liberating light of individual initiative, of individual liberty, of individual freedom, the light of untrammeled enterprise.”Footnote ⁷²

Yet, for all the rhetoric about individual liberty, much of Wilson's emerging philosophy cut in the statist direction. Early in his academic career Wilson dismissed the Lockean contract theory of the origins of government, rejecting the idea of natural law. He pictured the role of government in a broad light. “Government does not stop with the protection of life, liberty, and property, as some have supposed,” he declared in 1889, “it goes on to serve every convenience of society.”Footnote ⁷³ Wilson added: “It is of the nature of government to regulate property rights: it is of the policy of the state to regulate them more or less.”Footnote ⁷⁴ Brushing aside laissez-faire theory, he maintained that government was essential and potentially beneficial, not just a necessary evil. Americans, Wilson maintained, should act “as believers in the wholesomeness and beneficence of the body politic.”Footnote ⁷⁵ Moreover, he asserted that “modern individualism has much about it that is hateful, too hateful to last.”Footnote ⁷⁶

As we have seen, Progressives sought to break the traditional tie between individual liberty and the minimal state. Wilson helped to advance this program of so-called positive liberty. He stated that Thomas Jefferson's philosophy that the best government consisted in governing as little as possible was obsolete in modern circumstances, and that government must assist individuals. “Freedom to-day,” Wilson famously observed, “is something more than being let alone. The program of a government of freedom must in these days be positive, not negative merely.”Footnote ⁷⁷ Such sentiments opened the door for the Progressive legislative and redistributive agenda to gain legitimacy in the polity.

Wilson's view of the Constitution is also revealing as to the Progressive mindset. As early as 1893 Wilson denied that the Constitution expressed fixed norms. “It seems to me impossible to treat a written Constitution as you would any other document,” he declared. “A Constitution must hold (contain) the prevalent opinion, and its content must change with national purpose.”Footnote ⁷⁸ During the 1912 presidential campaign he dismissed the constitutional system of checks and balances as outmoded and a barrier to good government. Wilson asserted “Government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.”Footnote ⁷⁹ He continued: “Living political constitutions must be Darwinian in structure and in practice…. All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific word—to interpret the Constitution according to the Darwinian principles.”Footnote ⁸⁰ The evolutionary lessons of Darwin made clear to Wilson that constitutional norms must adapt to changed economic and social conditions and that Americans should abandon devotion to the views of the Framers. Indeed, Wilson even suggested that the Constitution was not the true basis of political life. “Justly revered as our great Constitution is,” he wrote, “it could be stripped off and thrown aside like a garment, and the nation would still stand forth clothed in the living vestment of flesh and sinew, warm with the heartblood of one people, ready to recreate constitution and laws.”Footnote ⁸¹ As this indicates, Wilson was an early champion of what would later be described as a “living Constitution” cut free from any original understanding of the document.

In sum, Wilson's constitutional vision regarded the growth of governmental power as part of an inevitable evolutionary process, treated provisions limiting governmental authority as outdated impediments to efficient governance, and gave little heed to the constitutional rights of individuals. It is true that, as president, Wilson sometimes pursued a more conservative course than some ardent Progressives would have preferred. This, however, represented a policy decision, not a recognition of constitutional restraints on the reach of government.

Of course, Croly, Ely, and Wilson were not the only voices in the dialogue over the meaning of Progressivism. But they were key figures, and were united by a commitment to activist government, and by hostility to traditional notions of individualism, laissez-faire economics, and concepts of limited government. Together they underscore the profound ideological shift in the early twentieth century toward a more extensive role for government at all levels.

VI. Progressive Jurisprudence

It remains to consider the impact of Progressivism upon constitutional jurisprudence. Although Progressives demonstrated considerable political strength and were able to enact a host of laws which intervened in the economy to an unprecedented extent, they remained apprehensive about the judicial reaction to their program. Both federal and state courts generally adhered to a constitutional philosophy grounded on limited government and respect for the rights of property owners. Progressives, as we have seen, displayed little patience with constitutional doctrines which constrained the reach of government. Despite their preference for governance by experts, Progressives saw themselves as champions of greater democratic rule. They soon viewed the judiciary as a barrier to their reform ideas. In 1912 Senator Robert M. LaFollette of Wisconsin forcefully articulated this sentiment: “Gradually the judiciary began to loom up as the one formidable obstacle which must be overcome before anything substantial could be accomplished to free the public from the exactions of oppressive monopolies and from the domination of the property interests.”Footnote ⁸² In the same year, Theodore Roosevelt charged that the New York courts and the Supreme Court “have placed well-nigh or altogether insurmountable obstacles in the path of needed social reforms.”Footnote ⁸³

Such complaints were in fact considerably exaggerated. It is simply a myth that the federal or state courts invalidated wholesale legislation of the Progressive Era, much less that they sought to impose a laissez-faire legal regime. Attacking the notion of laissez-faire constitutionalism as an invention by supporters of the Progressive movement, David N. Mayer has insisted “judges did not read Herbert Spencer's Social Statics or any other laissez-faire writing into the Constitution.”Footnote ⁸⁴ The United States has never had a period of strict laissez-faire, and courts could not have implemented one if they tried.Footnote ⁸⁵ In reality, courts were surprisingly receptive to Progressive legislation, and the regulatory state grew steadily in the first decades of the twentieth century.Footnote ⁸⁶

Nonetheless, legal writers associated with the Progressive movement seized upon a handful of atypical decisions, such as Lochner v. New York (1905),Footnote ⁸⁷ to launch a far-ranging attack on judicial review, constitutionalized property, and the individualistic ethos. Employing moralistic rhetoric common to the movement, Progressives pictured the Supreme Court as the last bulwark of property rights, and a one-sided defender of the wealthy and big business against the interests of workers.Footnote ⁸⁸ This demoniac tale had only a slight relation to reality, but it served the needs of Progressive political leaders.

The Progressive era produced numerous proposals to curb the courts. Some historians reopened the question of whether the framers of the Constitution had ever envisioned judicial review of legislation.Footnote ⁸⁹ Many Progressives went a step further in their desire to reign in the judiciary, calling for enactment of provisions for the recall of state judges. They reasoned that the availability of the recall remedy would keep judges in sync with prevailing public opinion.Footnote ⁹⁰ Joining this debate, Roosevelt particularly championed the recall of state judicial decisions. He reasoned that “when a judge decides a constitutional question, when he decides what the people as a whole can and cannot do, the people should have the right to recall the decision if they think it wrong.”Footnote ⁹¹ This radical idea aroused fury among conservatives and even upset many of Roosevelt's Progressive allies. Critics feared that recall of either judges or judicial decisions would erode judicial independence. Yet such proposals dramatized the deep discontent of many Progressives with the judiciary. Ultimately the Progressive recall campaign faded with little result.

While debates continued over the appropriate role of the courts in American political life, Progressive historians began to ask fundamental questions about the Constitution itself.Footnote ⁹² They emphasized that the Constitution was essentially an undemocratic document. Some even contended that the Constitution was not sacrosanct, and argued that the United States in the early twentieth century could not be successfully governed by eighteenth-century principles. In this context Charles A. Beard published his landmark book, An Economic Interpretation of the Constitution (1913). This volume has long been a topic of controversy and cannot be treated in detail here. Beard saw the Constitution as the product of political conflict, and stressed that the Framers were skeptical about majority rule. He maintained that most of the framers anticipated economic benefits to themselves from the new constitutional order. Beard concluded: “The Constitution was essentially an economic document based on the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities”Footnote ⁹³ Such a conclusion was uncongenial to the Progressive mind. Yet by urging people to view the Constitution with less awe Beard may have hoped to encourage constitutional change. This may explain the appeal of the book to the Progressive generation. “It first took root in the Progressive era,” Richard Hofstadter commented, “because it was suited to the spirit of protest and the hope for reform.”Footnote ⁹⁴

Even at the zenith of the Progressive movement, however, it was difficult to bring about formal changes in the judiciary itself. Progressives enjoyed more success in pioneering a supposed new outlook toward the nature of law. Roscoe Pound (1870–1964) was instrumental in promoting the development of “sociological jurisprudence.”Footnote ⁹⁵ A student of biology as well as law, Pound was readily inclined to see law from an evolutionary perspective. He repudiated natural law and natural rights as anachronisms which encouraged thinking of law in terms of abstract legal doctrines. Instead, he urged courts to utilize data provided by social science.

In advancing his call for “sociological jurisprudence” Pound fashioned myths which have long plagued the history of constitutional law in the late nineteenth century. He was primarily responsible for crafting an image of courts adhering to so-called “mechanical jurisprudence”. Pound asserted that courts followed a closed method of making deductions from predetermined conceptions without regard to underlying facts or social consequences. He took special aim at the liberty of contract doctrine under the Fourteenth Amendment, particularly as exemplified in Lochner. Footnote ⁹⁶ Discussing the Fourteenth Amendment, Pound made this extraordinary comment: “Starting with the conception that it was intended to incorporate Spencer's Social Statics in the fundamental law of the United States, rules have been deduced that obstruct the way of social progress.”Footnote ⁹⁷ On its face this statement is overly broad and requires qualification. First, the only authority cited by Pound for such a sweeping contention is the dissent by Justice Oliver Wendell Holmes (1841–1935) in Lochner, Footnote ⁹⁸ which he apparently accepts as gospel. But the Holmes dissent is a slender reed indeed, because Holmes in turn makes dubious generalizations with no evident support. Second, whether judicial decisions “obstruct the way of social progress” is a value-laden matter of opinion. Third, as I have argued elsewhere, there is ample evidence that courts in the late nineteenth century were neither mechanical in their approach to issues nor inclined to block all Progressive reform measures.Footnote ⁹⁹ Indeed, the Supreme Court under Chief Justice Melville W. Fuller (1888–1910) pursued instrumental goals of protecting investment capital and safeguarding the national market.Footnote ¹⁰⁰ In short, Pound has created a “mechanical jurisprudence” straw man.

According to Pound, the remedy for alleged “mechanical jurisprudence” lay in the adoption of “sociological jurisprudence.” Pound elaborated his thinking about “the new juristic theory” in a series of articles. One is struck with the extent to which he relied upon European schools of jurisprudential thought as a basis for his conclusions, and how little attention he paid to American law. The danger was that Pound would draw lessons from civil code systems and apply them uncritically to common law courts, thus reaching erroneous conclusions about judicial behavior in the United States. In discussing the purpose of “sociological jurisprudence,” Pound insisted that “the conception of law as a means toward social ends” would require judges “to keep in touch with life.”Footnote ¹⁰¹ He explained: “The main problem to which sociological jurists are addressing themselves today is to enable and to compel law-making, and also interpretation and application of legal rules, to take more account, and more intelligent account of the social facts upon which law must proceed and to which it is to be applied.”Footnote ¹⁰² Pound added that “sociological jurists” favor “equitable application of law” in which rules are treated as “a general guide to the judge”, who remains free “within wide limits” to dispense justice in individual cases.Footnote ¹⁰³

As Pound saw it, courts were ill-equipped to ascertain the necessary “social facts.” “Judicial law-making cannot serve us,” he bluntly declared.Footnote ¹⁰⁴ Instead, Pound reasoned that only legislative bodies were in a position to conduct hearings, assess expert opinions, and then determine “social facts.” It followed that judges under a regime of “sociological jurisprudence” should defer to legislative findings. In a revealing comment in 1908 Pound hailed the Holmes dissent in Lochner as “the best exposition” of “sociological jurisprudence.”Footnote ¹⁰⁵ But Holmes mentioned no facts, “social” or otherwise, in his Lochner opinion.Footnote ¹⁰⁶ Holmes simply made a series of pronouncements that he apparently regarded as self-evident and concluded that the Supreme Court should affirm “the right of a majority to embody their opinions in law.” Pound's endorsement of this opinion indicates that he was less interested in “social facts” than in a policy of judicial deference to legislation. Indeed, for all his professed devotion to facts, Pound offered virtually no empirical evidence to support his claims.

The emerging “sociological jurisprudence” was in harmony with the political aims of Progressives, who saw claims of individual right as inconsistent with their dedication to activist government. Pound and other elite legal figures associated with Progressivism shared these attitudes. For example, Pound complained about “[t]he currency in juristic thought of an individualistic conception of justice, which exaggerates the importance of property and of contract, exaggerates private right at the expense of public right, and is hostile to legislation….”Footnote ¹⁰⁷ Rights do not figure prominently in his thinking. Similarly, Learned Hand, a supporter of Roosevelt in the 1912 presidential campaign, assailed the notion that the due process norm “embalms individualistic doctrines of a hundred years ago.”Footnote ¹⁰⁸ Taking a somewhat different tack, Beard in 1908 enthused that “the stress once laid on individual liberty in the juristic sense is being diminished.”Footnote ¹⁰⁹

Pound's invectives against “mechanical jurisprudence” rested upon deeply flawed history and a heavy dose of German legal science. Recently Brian Z. Tamanaha has charged that Pound simply created an imaginary account of how cases were actually decided at the turn of the twentieth century.Footnote ¹¹⁰ Nonetheless, by virtue of frequent repetition and Pound's prestigious position as Dean of Harvard Law School, his views gradually gained widespread acceptance in the academy.

Pound helped to advance the Progressive political agenda in several ways.Footnote ¹¹¹ He stigmatized a period of judicial history in which courts defended economic rights, an era that Progressives particularly disliked. This would ultimately degenerate into a morality tale about how “good” Progressives battled reactionary Supreme Court justices to uphold salutary laws.Footnote ¹¹² Yet such an account is very wide of the mark. There never was a brief period in which judges suddenly began to reason in the mechanical and deductive manner depicted by Pound. As Morton J. Horwitz has pointed out: “… by seeking to stigmatize the Lochner era, Progressives lost sight of the basic continuity in American constitutional history before 1937.”Footnote ¹¹³ Nonetheless, the historical fiction created by Pound formed the basis for a new orthodoxy.

Pound was influential in other respects as well. He popularized the view that law could be a vehicle for social change, a position congenial to Progressives. Further, his appeal for judicial deference marked a sharp break from the past and became a centerpiece of Progressive jurisprudence. The ominous implications of judicial deference for individual rights are obvious, but, as we have seen, rights did not bulk large in Progressive thought.

Themes developed by Pound found ready acceptance among legal intellectuals. Charging that “legal science” had become static, Louis D. Brandeis (1856–1941) pictured an obtuse judiciary mechanically invoking legal rules without regard to their actual consequences. He complained: “Courts continued to ignore newly arisen social needs. They applied complacently 18^th century conceptions of the liberty of the individual and of the sacredness of private property…. Where statutes giving expression to the new social spirit were clearly constitutional, judges, imbued with the relentless spirit of individualism, often construed them away.”Footnote ¹¹⁴ To support this broad caricature of judicial behavior, Brandeis took aim at Lochner and a handful of other state and federal decisions dealing with workplace regulations, the usual suspects rounded up by Progressives.Footnote ¹¹⁵ The remedy for this perceived problem, in Brandeis's mind, was the “living law” which harmonized “law with life.” This result could best be achieved by integrating economics and sociology into legal education and legal arguments. Implicit in Brandeis's thinking was the view that legislatures were more in tune with the “living law” than courts, and that judges should move slowly in overturning statutes as violations of liberty or property.

In the same vein, Edwin R. Keedy, a University of Pennsylvania law professor, extolled Pound and “sociological jurists” for their pragmatism. He was pleased to find that the trend of legal thought “is away from reverence for fixed principles toward consideration of the economic, industrial and social merits of the particular controversy, away from artificiality towards simplicity, and from an individualistic towards a collective attitude.”Footnote ¹¹⁶ Accepting without question Pound's treatment of a supposed earlier school of “mechanical jurisprudence” based on deductive reasoning, Keedy posited that under “sociological jurisprudence” courts “should take into consideration the social and economic conditions underlying the cases that come before them and should not base their decisions entirely upon abstract rules.” Like Pound, he gave no attention to the thought that this point was not a novel insight. Keedy linked individualism with private property, contractual freedom, and economic competition. Happily, he concluded, individualism was in decline. Cooperation had replaced competition in business affairs, and property was regulated “for the public benefit.” Keedy broke no new ground, but helped to perpetuate Pound's message of a retrograde judiciary and the need for a more collectivist approach to legal issues. Not surprisingly, he made no mention of individual rights or of the Constitution as a restraint on governmental authority.

VII. Militant Progressivism

The new constitutional thinking stirred up by the Progressive movement found expression in a number of utopian novels. Among the most revealing of such works was Philip Dru Administrator: A Story of Tomorrow 1920–1935, published anonymously in 1912 as the Progressive movement gained ascendancy in American life.Footnote ¹¹⁷ Four years later it was discovered that the author was the influential Edward Mandell House (1858–1938). Better known as Colonel House, although he never held a military commission, the author was a close friend and confident of President Wilson.Footnote ¹¹⁸Philip Dru, which incorporates Progressive values into a dramatic and disturbing tale, lays open both the promise and perils of Progressivism. It warrants careful investigation.

Philip Dru, the title character, is a graduate of West Point who resigns from the army after suffering an eye injury. A career as a journalist and social worker in New York City exposes Dru to the plight of the urban poor and the sordid state of politics. Anxious to seek reforms to assist the unfortunate, Dru finds both political parties controlled by wealth. Plutocrats form a league for the “nefarious plan” of electing a president favorable to their interests. Orchestrated by a corrupt but powerful senator, this plan succeeds. When the scheme comes to light, the president uses force to prevent free elections. As the nation veers toward civil war, the impending conflict pits the rich and very poor against the middle class. Recall that Progressives were fond of picturing themselves as champions of the middle class. Dru takes command of an insurgent force and defeats the regular army. The president flees and Dru assumes dictatorial powers. He proclaims himself Administrator of the Republic, but promises to eventually restore democratic government.

For several years Dru is busy reconstructing American political institutions along Progressive lines. His first target is the legal system. Dru reduces the number of courts and eliminates judicial review. Dru limits the power of courts “to the extent that they could no longer pass upon the constitutionality of laws, their function being merely to decide, as between litigants, what the law was, as was the practice of all other civilized nations.” Nor were private lawsuits exempt from Dru's reformist zeal. Because the United States had “the most complicated, expensive and inadequate legal machinery of any civilized nation,” Dru takes steps to prevent lawyers from bringing frivolous lawsuits “of doubtful character, and without facts and merit to sustain them.” Moreover, he names an expert commission to revise and prune down both federal and state laws. To assist in this endeavor Dru selects as advisors “eminent lawyers” from England, France and Germany. He directs that states should simplify land titles to facilitate real estate transfers and should adopt uniform divorce laws.

Dru also mandates many changes on the economic front. He imposes a graduated income tax and abolishes protective tariffs. Dru realizes that improvements in communication and travel “were, for all practical purposes, obliterating State lines and molding the country into a homogeneous nation.” Thus, he feels that the national government should assume certain functions that have previously been under state control. Dru proposes a Federal Incorporation Act, which included the requirement that government and “Labor” should have representatives on corporate boards. Railroads and public service corporations are to function under the supervision of regulatory commissions. Significantly, Dru does not directly attack private property and declares that investors should have reasonable profits as well as protection against unfair state interference. Only the telephone and telegraph companies are to be taken over by the government, and that upon payment “for their properties at a fair valuation.”

Dru's ideas regarding the labor force are noteworthy. In exchange for profit sharing, strikes are forbidden. All grievances must be submitted to arbitration. Dru further directs that work shall be limited to eight hours a day, six days a week. The government would become the employer of last resort for those who cannot find work. Dru then makes plans for old-age pensions and a disability insurance law.

Some of Dru's most radical moves are in the area of constitutional law. Sympathetic to the women's movement for greater equality with men, Dru grants universal suffrage. He then turns to overhauling the Constitution. Dru proceeds on the premise that “America is the most undemocratic of democratic countries.” “Our Government,” he charges,” is, perhaps, less responsive to the will of the people than that of almost any of the civilized nations.” Therefore Dru set out to fashion a more responsive government. Like many Progressive leaders, he has little time for the system of checks and balances. We have already seen how Dru drastically curtailed the power of the judiciary. In contrast to Croly, Dru expresses the view that the office of president is too powerful. Under the new constitution the executive is chosen by the House of Representatives and serves at the pleasure of the House. The executive may select a cabinet, but has no veto power and appears to function as a sort of parliamentary leader in the British manner. The president occupies a purely ceremonial post. The weakening of the executive branch is palpably ironic given the fact that this change is made by a dictator. Senators are to be elected directly by popular vote, but the place of the Senate in the new legislative process is secondary to the House. There is no mention of a Bill of Rights, reflecting the general Progressive lack of interest in individual right. Nor is there any provision for amendment.

Amid his prodigious efforts to overhaul the political system of the United States, Dru remains keenly interested in international affairs. He pursues a highly aggressive policy to promote United States interests abroad, a reminder that many prominent Progressives, such as Roosevelt and Senator Albert J. Beveridge of Indians, were ardent imperialists.Footnote ¹¹⁹ For example, Dru engineers an Anglo-American alliance to secure commercial freedom. Much of the world is divided into spheres of influence among the United States and European powers. England relinquishes control of Canada, and that nation moves closer to the orbit of the United States. More striking, Dru invades Mexico to check political chaos in that country. Again victorious, Dru imposes a sort of protectorate over Mexico to maintain order, and directs that Mexican officials prepare a new form of government. This portion of the novel may well have been inspired by actual events, for in 1912 Mexico was engulfed in civil conflict. Indeed, Dru's actions with respect to Mexico seem to have prefigured Wilson's military interventions to safeguard democracy there. However, the fictional Dru was far more successful than Wilson's ill-fated “missionary diplomacy.”Footnote ¹²⁰

There is a strong note of coercion throughout the novel. Dru comes to power as part of a military overthrow of the established government, a troublesome development for modern readers who recall the rise of totalitarian dictators by means of military coup. Although a benevolent despot, Dru nonetheless imposes his reforms by decree. There is nothing democratic about his period of rule. Dru talks in terms of government for “the people,” but he in fact relies on expert boards, not popular input to devise his new laws. Evidently Dru and his experts know best what the people need. Paternalism and efficiency guide his lawmaking, not democratic accountability. Another pronounced theme is increased national authority over the states, a view congruent with that of many Progressives. Dru even incorporates some elements of Social Gospel thinking in his planning. Picturing his program as an application of Christian morality, Dru proclaims: “And from the blood and travail of an enlightened people, there will be born a spirit of love and brotherhood which will transform the world; and the Star of Bethlehem, seen but darkly for two thousand years, will shine again with a steady and effulgent glow.”

More a political tract than a novel, Philip Dru is largely forgotten today. Still, the work affords troublesome insight into the Progressive mindset. Colonel House comes close to suggesting that the Progressive goals of social and economic transformation can best be achieved by a military putsch, repudiation of the Constitution, and a temporary dictatorship. One can only guess what impact House had on President Wilson, who described House as his “alter ego.” Certainly House fashioned a mythical great leader who would dominate the nation. Croly would have approved. Others may detect a whiff of totalitarianism, anticipating the enormous expansion of the coercive power of government by the Wilson administration during World War I.