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Progressivism vs Natural Law


Ronald J. Pestritto, Hillsdale College

AmericanProgressivism is an enduring topic for students of American politics andhistory because progressivism, at its core, presents a direct, philosophicchallenge to the natural law tradition of America’s founding. A study of thekey texts of American Progressivism will thus help us to place the role of thenatural law tradition in American political and constitutional theory,particularly as related to the historical developments of the 20th century andin our own time.

What isprogressivism? In the context of American history, it is the politicalorientation that gave rise to America’s original Progressive Era, which came inthe last decades of the 19th century and the opening decades of the 20th, andwhose principles of government inform contemporary political liberalism in theUnited States. It can be thought of as an argument to progress beyond thepolitical principles of the American founding—and, in particular, to overcomethe natural-law foundations of America’s original political order. It is an argumentto enlarge vastly the scope of national government for the purpose ofresponding to a set of economic and social conditions that, progressivescontended, could not have been envisioned at the founding and for which thefounders’ limited, constitutional government was inadequate. The founders hadposited what they had held to be a permanent understanding of just government,and they had derived this understanding of government from the “laws of natureand nature’s God,” as asserted in the Declaration of Independence. Theprogressives countered that the ends and scope of government were to be definedanew in each historical epoch. They coupled this perspective of historicalcontingency with a deep faith in historical progress, suggesting that, due to historicalevolution, government was becoming less of a danger to the governed and morecapable of solving the great array of problems besetting the human race.Historically, these ideas formed a common thread among the most importantAmerican thinkers from the 1880s into the 1920s and beyond, manifestingthemselves in the writings and speeches of Theodore Roosevelt, Woodrow Wilson,Herbert Croly, John Dewey, Robert LaFollette, and several others.

The Progressive Erawas the first major period in American political development to feature, as aprimary characteristic, the open and direct criticism of the political andconstitutional theory of the American founding. While criticism of certain ofthe founders’ ideas could be found during any period of American history, theProgressive Era was unique in that such criticism formed the backbone of theentire movement. In almost any progressive text that one may pick up, thereader is reminded that the Constitution is old, and that its principles wereconceived in response to circumstances that have long ago been replaced by awhole new set of pressing social and economic ills.

The U.S.Constitution, as its framers understood it, was a means to an end. It wascrafted and adopted for the sake of achieving the natural-law principlesreferred to in the Declaration of Independence. The progressives understoodthis very clearly as well, which is why many of the more theoretical workswritten by progressives feature sharp attacks on social compact theory and onthe notion that the fundamental purpose of government is to secure theindividual natural rights of citizens. While most of the founders and nearlyall ordinary Americans did not subscribe to the radical epistemology of thesocial compact theorists, they did believe, in Lockean fashion, in natural law,and that men as individuals possessed rights by nature—rights that any justgovernment was bound to uphold and that stood as inherent limits to theauthority of government over individual liberty and property. The robustregulatory and redistributive aims of the progressive policy agenda wereinevitably at odds with the natural-law theory of the founding. This basic factmakes understandable Woodrow Wilson’s admonition (in an address ostensiblyhonoring Thomas Jefferson) that, “if you want to understand the realDeclaration of Independence, do not repeat the preface.”[2] Do not, in other words, repeat that part ofthe Declaration that draws on the natural law and enshrines natural rights asthe focal point of American government.

Wilson here wouldturn our attention away from the natural law and the timelessness of theDeclaration’s conception of government, and would focus us instead on the litanyof grievances made against George III. In other words, he would show theDeclaration to be a merely practical document, to be understood as a specific,time-bound response to a set of specific historical circumstances. Once thecircumstances change, so too must our conception of government. It is with thisin mind that Wilson urged that “we are not bound to adhere to the doctrinesheld by the signers of the Declaration of Independence,” and that every Fourthof July, instead of a celebration of the timeless principles of theDeclaration, should instead “be a time for examining our standards, ourpurposes, for determining afresh what principles, what forms of power we thinkmost likely to effect our safety and happiness.”[3] Like Wilson, Frank Goodnow (a progressivepioneer in constitutional and administrative theory) acknowledged that thefounders’ system of government “was permeated by the theories of social compactand natural right,” and he complained that such theories were “worse thanuseless,” because they “retard development”[4]—that is, that the natural-law protections forindividual liberty and property inhibit the expansion of government. Incontrast to the principle of natural rights that undergirded the Americansystem, Goodnow praised political systems in Europe where, he explained, “therights which [an individual] possesses are, it is believed, conferred upon him,not by his Creator, but rather by the society to which he belongs. What theyare is to be determined by the legislative authority in view of the needs ofthat society. Social expediency, rather than natural right, is thus to determinethe sphere of individual freedom of action.”[5]

Goodnow, Wilson, andother progressives championed historical contingency against the Declaration’stalk of natural law and the permanent principles of just government. Thenatural-law understanding of government may have been appropriate, theyconceded, as a response to the prevailing tyranny of that day, but, theyargued, all government has to be understood as a product of its particularhistorical context. The great sin committed by the founding generation was not,then, its adherence to the doctrine of natural law, but rather its notion thatthat doctrine was meant to transcend the particular circumstances of that day. Itwas this very facet of the founders’ thinking that Abraham Lincoln recognized,and praised, in 1859 when he wrote of the Declaration and its primary author:

All honor toJefferson—to the man who, in the concrete pressure of a struggle for nationalindependence by a single people, had the coolness, forecast, and capacity tointroduce into a merely revolutionary document, an abstract truth, applicableto all men and all times.[6]

Recognizing the verysame characteristic of the founders’ thought, John Dewey complained, bycontrast, that the founding generation “lacked historic sense and interest,”and that it had a “disregard of history.” As if speaking directly to Lincoln’spraise of the founding, Dewey endorsed, instead, the doctrine of historicalcontingency. Natural law theory, Dewey argued,

blinded the eyes ofliberals to the fact that their own special interpretations of liberty,individuality, and intelligence were themselves historically conditioned, andwere relevant only to their own time. They put forward their ideas as immutabletruths good at all times and places; they had no idea of historic relativity.[7]

The idea of libertywas not frozen in time, Dewey argued, but had instead a history of evolvingmeaning. The history of liberalism, about which Dewey wrote in Liberalismand Social Action, was progressive—it told a story of the move from moreprimitive to more mature conceptions of liberty. Modern liberalism, therefore,represented a vast improvement over classical (or what Dewey called “early”)liberalism.

This coupling ofhistorical contingency with the doctrine of progress (shared by allprogressives to one degree or another) reveals how the progressive movementbecame the means by which German historicism was imported into the Americanpolitical tradition. The influence of German political philosophy is evidentnot only from looking at the ideas espoused by progressives, but also from thehistorical pedigree of the most influential progressive thinkers. Almost all ofthem were either educated in Germany in the nineteenth century or had asteachers those who were. This fact reflects the sea of change that had occurredin American higher education in the second half of the nineteenth century, atime when most Americans who wanted an advanced degree went to Europe to getone. By 1900, the faculties of American colleges and universities had becomepopulated with European PhDs, and the historical thinking that dominated Europe(especially Germany) in the nineteenth century came to permeate American highereducation. Johns Hopkins University, founded in 1876, was established for theexpress reason of bringing the German educational model to the United States,and produced several prominent progressives, including Wilson, Dewey, andFrederick Jackson Turner.

Among other things,American progressives took from the Germans (and especially from the Germanphilosopher G. W. F. Hegel and his disciples) their critique of natural law,individual rights, and social compact theory, and their organic or “living”notion of the national state. Wilson, in reflecting on what it meant to be aprogressive, wrote of government as a “living thing,” which was to beunderstood according to “the theory of organic life.” This “living” notion of aconstitution, Wilson contended, was far superior to the founders’ model, whichhad considered government a kind of “machine” that could be constantly limitedthrough checks and balances.[8] As a living entity, the progressivesreasoned, government had to evolve and adapt in response to changing circumstances.While early American conceptions of national government had carefullycircumscribed its power due to the perceived threat to natural liberties,progressives argued that history had brought about an improvement in the humancondition, such that the will of the people was no longer in danger of becomingfactious. Combined with a whole new host of economic and social ills thatcalled out for a governmental remedy, progressives took this doctrine ofprogress and translated it into a call for a sharp increase in the scope ofgovernmental power.

As a practicalmatter, this call led progressives to advocate both constitutional reform andan aggressive legislative and regulatory agenda. In keeping with the purpose ofthis web resource, my brief essay has focused on the more philosophic aspectsof progressivism, because that is where progressivism’s encounter with thenatural law tradition is most direct.  On the more concrete side, readersare encouraged to study both the progressives’ critique of the constitutionalseparation of powers and the alternative solution that they proposed: theseparation of politics and administration.  By this latter formulation,progressives like Wilson and Goodnow meant that the national politicalinstitutions (Congress, the presidency, etc.) ought to be democratized andunified, bringing them into much closer contact with public opinion andfacilitating their expression of the general public will. At the same time,since progressives believed that the most contentious political questions hadbeen resolved by historical development (the Civil War had been decisive inthis regard), the real work of government was not in politics, but inadministration, that is, in figuring out the specific means of achieving whatthe people generally agreed they all wanted. It is in this way thatprogressivism became influential not only upon the development of ourtraditional political institutions, but also on the rise of the federalbureaucracy and the very significant role played by federal agencies in settingand enforcing national policy today.

It is also the casethat so much could be said about progressivism’s massive influence on our partyand electoral systems, and especially on the structure of state and localpolitics, where progressivist mechanisms such as the ballot initiative, thereferendum, the recall, the short ballot, and the professionalization of localgovernment with city managers and commissions have become a traditional part ofour political life as Americans.  But these, too, lie outside the scope ofthis essay and must remain matters to be independently pursued by the reader.

With respect to thekey philosophic works of progressivism relating to the natural law tradition, Ihave drawn the reader’s attention to some of them in this essay, and some ofthese have been made available as a resource on this website.

[1] Readers interested in a more in-depthintroduction to American progressivism are directed to Ronald J. Pestritto andWilliam J. Atto, “Introduction to American Progressivism,” in AmericanProgressivism: A Reader, ed. Pestritto and Atto (Lexington Books, 2008),1-32.  Parts of this brief essay are based upon that longer work.  AmericanProgressivism is also a source for a wider selection of relevantprogressive-era writings.

[2] Woodrow Wilson, “An Address to the JeffersonClub of Los Angeles” May 12, 1911, in The Papers of Woodrow Wilson(herafter cited as PWW), 69 vols., ed. Arthur S. Link (PrincetonUniversity Press, 1966-1993), 23:34.

[3] Woodrow Wilson, “The Author and Signers ofthe Declaration of Independence,” July, 1907, in PWW, 17:251.

[4] Frank J. Goodnow, Social Reform and theConstitution (Macmillan, 1911), 1, 3.

[5] Frank J. Goodnow, The American Conceptionof Liberty and Government (Brown University Colver Lectures, 1916), 11.

[6] Abraham Lincoln to Henry L. Pierce andOthers, April 6, 1859, in Abraham Lincoln: Speeches and Writings, 1859-1865,ed. Don E. Fehrenbacher (Library of America, 1989), 19.

[7] John Dewey, Liberalism and Social Action(Prometheus Books, 2000), 40-41.

[8] Woodrow Wilson, The New Freedom (Doubleday,Page & Company, 1913), 46-47.