The Conservative Contribution to Progressivism, Part 2

This is the follow up to my first post describing the historical and social underpinnings of the progressive movement of the late 19th and early 20th century, drawing largely from Michael McGerr’s A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870-1920.  The thesis, arrived at in this post, is that while conservative values may have played a role in progressivism’s initial volley, the ultimate goals of progressive movement were anything but conservative.

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The new standard of living being conceived in the minds of Americans at the end of the 19th century put individualism in the crosshairs.  At the beginning of the 19^th century, individualism was a hard lot, but a seemingly fair one.  A fledgling national government, a nigh-nonexistent system of roads, and a still sparsely populated nation rendered individual sustainability difficult but relatively predictable.  By the end of the 19^th century, however, the vagaries of national macroeconomics were already beginning to render markets less predictable; the vast expansion of federal power rendered economic activity an increasingly political affair; and the maturing American economy, fortified by extensive rail and telegraph networks, saw industries becoming dominated by big firms.  All the while, increasing numbers of common working Americans were funneling into urban factory life.  While farms seldom provided more than subsistence living, Americans felt relatively proud and fulfilled.  They had a markedly different experience in the new American factories, however.  All this made working class Americans increasingly discontent—all they needed was a reason to impugn the individualism that sustained the unhappy state of affairs.

Conservative activists were all too eager to supply such reasons.  The expansion of pleasure-seeking to the middle-class worsened the problem of vice and had weakened the family structure.  The Social Gospel leader, Washington Gladden, for example, traced prostitution to middle- and upper-class affluence, as young men increasingly began to put off marriage “until they are able to support a wife in good style.”

“[A]nd as the wealth of the land increases and their neighbors live more and more luxuriously, the phrase ‘in good style’ is constantly undergoing changes of meaning. Young women become accustomed in their parental homes to a certain amount of comfort and of leisure, and they do not relish the thought of beginning to live more plainly and more laboriously in a home of their own.” When these people postponed marriage, Gladden affirmed, “one of the inevitable consequences is the increase of social immorality”: young men, single for too long, would seek sexual satisfaction with prostitutes. The attack on the brothel, then, might not get at the real problem that threatened the home. “I do not believe that there is any remedy for this social disease but the restoration of a more wholesome sentiment concerning this whole subject of family life,” Gladden concluded. “The morality of what we call our respectable classes needs toning up all along this line.”

(Emphasis added.)

It is this sentiment—that “morality . . . needs toning up”—that represents the conservative contribution to progressivism:  as new social, political, and economic forces began to disrupt cultural and moral values, many conservatives sought to push back in kind not merely to curtail those effects, but to counteract them.  Man and his moral character were no longer something to be left to the sole province of himself and his community; they must be “toned up” and remade through the law.  Under the progressive construction of man’s moral predicament, man was no longer accountable for his own actions.  Because people were malleable and defined by their environment, criminals were not wholly to blame, since their crimes owed in part to the sins of society.  “What we have got to have,” said Gladden, “is a different kind of men and women.”

Thus, a renewed vigor for morals legislation ensued, directed at card playing, gambling, horse racing, Sabbath breaking, pornography, dance halls, contraception, and, most famously, liquor.  Liquor, more than all other vices, was seen as the root of man’s moral decline—particularly, the breakup of the family and the degradation of women.  In this respect, McGerr recounts Carry Nation’s attack of a nude painting in the bar of the Carey Hotel in Wichita:

“It is very significant that the pictures of naked women are in saloons,” she explained. “Women are stripped of everything by them. Her husband is torn from her, she is robbed of her sons, her home, her food and her virtue, and then they strip her clothes off and hang her up bare in these dens of robbery and murder. Well does a saloon make a woman bare of all things!”

Yet, progressives quickly realized that prohibition of vices was not enough:  remaking man could not be achieved by negative campaign alone—it required an affirmative component.  Progressives would have to find “substitutes for the saloon.”

Alcohol free clubs and dance halls were needed to fulfill people’s desire to meet and socialize; libraries and gymnasiums were needed to fulfill the desire for stimulation. In short, the transformation of individuals required a more sweeping transformation of their environment.

With the progressives’ transition from a prohibitory campaign to more affirmative attempts to reshape mankind came the end of any partnership with conservatism.  Progressives moved beyond their “conservative” agenda to restore Victorian values, and instead began to explore a more radical, activist agenda.  Progressives began to remake rather than merely preserve society.  Law was not merely an anchor; it could serve as a sail.

This aspect of the progressive agenda was clear by the time of Woodrow Wilson’s presidency, who stated:  “Our problem is not merely to help the students to adjust themselves to world life. . . . Our problem is to make them as unlike their fathers as we can.”  Progressivism had by this time become a different thing entirely than the post-Victorian conservatism it set out as.  Indeed, it could be said the project never was truly conservative in the first place, and that the lament of the decline of Victorian values was merely lip service to justify the brewing radicalist urges.  Thus, perhaps even the prescriptive components of the early progressive agenda were less about preserving Victorian values than preliminary efforts at remaking all of society—the symbols of Victorianism simply served as a convenient cover of authenticity for an otherwise radical movement.

Whatever their original intentions, progressives eventually settled on an agenda that harmed conservative values:

Ironically, reform could destroy what it was intended to preserve. Crusading in the name of the home, reformers were supplanting the very thing they wanted to protect. As outside agencies supervised children in and out of school, ordered the material environment of tenements and parks, and regulated adult behavior, the family and the home became less important. “As in the human organism, when one organ fails, its functions are often undertaken and more or less imperfectly performed by some other organ,” Josiah Strong noted; “so in the great social organism of the city, when the home fails, the church sometimes undertakes the functions of the home.” A host of other “organs”—settlements, playgrounds, Boys’ Clubs, schools, courts, municipalities, state governments, the federal government—were undertaking those functions as well. But even the most reflective progressive activists appeared oblivious to the actual impact of their reforms on many homes.

According to E.A. Ross, progressivism eroded man’s moral fiber:  “Too much consideration for moral weakness would fill the world with moral weaklings,” he insisted. “To abolish temptation is to deprive the self-controlled of their natural right to outlive and outnumber those who have a cotton string for a backbone.”

“Once work was so constant that married women did not realize their loneliness or the want of appreciation which befell them,” Kate Gannett Wells contended in an essay titled “Why More Girls Do Not Marry”: Now society and the middle class have leisure to examine their states of mental solitude, and to see just where husbands are wanting. Fifty years ago the woman was too busy to stop for the morning kiss as her husband went to work.  Now she has time to think about the absence or infrequency of the greeting for half an hour before she reads the morning paper, in which she finds some fresh instance of man’s wickedness.

Thus conceived, progressivism cannot be sustained as a practical tool put in the service of conservatism—it is a wholly new conception of man, society, and government.

The Conservative Contribution to Progressivism, Part 1

I was referred to Michael McGerr’s A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870-1920 after making some comparisons of conservatism and liberalism to Progressivism.  It was one of the first full length books I read on my new Kindle, and I found myself glad for the ability to easily tag and annotate McGerr’s many important ideas.  Upon finishing the book, I’ve set out to fortify the basic position I advanced here, as I believe it is vindicated by the historical record set out in McGerr’s book.

It has become a more involved project than I anticipated, however, and thus I have decided to break it out into several parts—probably three, by the looks of it.  The first part, below, concerns the decline of the era of Victorian individualism, and the forging of a new idea of individualism and individual entitlements.

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For good reason, rebranding liberals as “progressives” is a widely used tactic on the right.  It is so effective because it associates the left with the repugnant and, even better, failed political movement of the late 19^th and early 20^th century.  That movement, of course, is the one that strove to remake humanity—economically through redistribution, morally through prohibitory legislation, and genetically through sterilization and eugenics.  The  Progressives’ zealous campaign against individual rights ultimately led even FDR, the very symbol of the remade 20^th century America, to distance himself from the movement.  Thus, even while its legacy survives, Progressivism’s name is a scarlet letter in American politics.  An intellectual family tree that relates Progressivism to modern liberalism is thus a tremendously effective polemic device.

Yet, the right often neglects to mention that conservatism also makes an appearance on Progressivism’s family tree.  In its early stages, after all, Progressivism was a reaction to the decline of Victorian values, bowing under the weight of an increasingly industrialized and fractured American society.  Campaigns to stem the uptick of divorce, prostitution, and drink resulted in our nation’s first flopped constitutional amendment.  Progressives also were content to use the power of their new labor unions to exclude blacks from entire industries.

In A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870-1920, Michael McGerr outlines the social, political, and economic forces giving rise to the Progressive movement.  It is the early stage of the Progressive moment that most clearly reveals conservativism’s contribution to the ill-fated project.  As justice Frankfurter would later write in 1940 in Minersville School District v. Gobitis,

The ultimate foundation of a free society is the binding tie of cohesive sentiment.  Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization.

It was this sort of conservative sentiment, unconservatively enshrined in national policy, that initially propelled the Progressive moment.  American individualism, loosed across a vast continent connected by an unprecedented network of rail and telegraph wire, put strain on America’s underlying social fabric.  The divorce rate following the Civil War inclined steeply as high society became obsessed with the pursuit of wealth and self-aggrandizement, perverting the virtue of individualism.  While the Victorians had balanced individual freedom with self-control, hard work, and domesticity, McGerr points out, “[t]he rich had seemingly cast aside those balance weights. In the hands of the upper ten, individualism became an excuse for complete autonomy, a legitimization of indulgence and inequality, and a rationalization of the troubling national status quo.”

Because of the wild success of America’s system of government in creating vast fortunes and divergent ways of life, Americans, perhaps unwittingly, undermined the connection with their own social fabric. The old town economies and country religions were out.  A new national economy and civic religion were in.

The wealthy, however, did not seem to grasp what was happening, or account for the growing resentment felt toward them.  From their perspective, their parties “helped the economy because ‘many New York shops sold out brocades and silks which had been lying in their stock-rooms for years.’”  Teddy Roosevelt tried to stave off the coming revolt, noting that social and political stability impel the wealthy to observe certain “duties toward the public.”  “Do they not realize that they are putting a very heavy burden on us who stand against socialism; against anarchic disorder?”  “I wish that capitalists would see that what I am advocating is really in the interest of property, for it will save it from the danger of revolution.”

The extravagance of the “upper 10” during the depression years of the 1890s galvanized populist resentment, particularly as Victorian individualism was failing the industrial class at the same time.  Industrial work was distantly attenuated from its product, and thus the traditional agrarian work ethic, like the traditional agrarians themselves, began to wane.  McGerr notes that by 1900, following the depression of the 1890s, wage workers in manufacturing earned an average of $435 for the year.  The working-class earned less yet:  anthracite coal miners averaged $340 for the year; domestics, $240; and agricultural laborers, only $178 with room and board.  The middle-class, on the other hand, working as clerical workers in railroad and manufacturing firms, averaged $1,011.  For the lower classes, McGerr argues, “Victorian individualism was impossible . . . . Many workers simply could not make enough to support themselves, let alone a family.”  This, along with frequent economic upheavals typical of markets, tended to undermine the moral force of individualism among turn-of-the-century wage-earners.

Despite capitalism’s harsh terms, its attendant virtues of thrift and self-sacrifice began to decline.  As McGerr notes, wage workers simply “saw little point in trying to save their dollars and deny themselves.”  Instead, they took the little they had and threw it into the same rat hole of excess as the rich.

Some workers shared the upper-class obsession with fashion and display. Young laboring women spent precious dollars on flashy clothing intended to match or even outdo the upper ten. “If my lady wears a velvet gown, put together for her in an East Side sweatshop,” a reporter in New York observed in 1898, “may not the girl whose fingers fashioned it rejoice her soul by astonishing Grand Street with a copy of it next Sunday? My lady’s in velvet, and the East Side girl’s is the cheapest, but it’s the style that counts. In this land of equality, shall not one wear what the other wears?”

Booker T. Washington also documented this burgeoning sense of entitlement to the bounty of modern life, irrespective of the means to acquire it:

In these cabin homes I often found sewing-machines which had been bought, or were being bought, on instalments, frequently at a cost of as much as sixty dollars, or showy clocks for which the occupants of the cabins had paid twelve or fourteen dollars. I remember that on one occasion when I went into one of these cabins for dinner, when I sat down to the table for a meal with the four members of the family, I noticed that, while there were five of us at the table, there was but one fork for the five of us to use. Naturally there was an awkward pause on my part. In the opposite corner of that same cabin was an organ for which the people told me they were paying sixty dollars in monthly instalments. One fork, and a sixty-dollar organ!

. . . .

On Saturday the whole family would spent at least half a day, and often a whole day, in town. The idea in going to town was, I suppose, to do shopping, but all the shopping that the whole family had money for could have been attended to in ten minutes by one person.

The rise of hedonistic individualism hastened the decline of Victorian values.  McGerr notes that “middle-class husbands and wives judged their spouses by the pleasures they provided—the quality of the home and its objects, the happiness of the marriage. The failure to meet those increased expectations was a principal reason for the increasing breakup of Victorian marriages.”

This new form of individualism came as a result of a growingly diffuse economy in which labor and consumption had become only distantly and obliquely related.  Industrial work was attenuated from its product, and thus the traditional agrarian work ethic, like the traditional agrarians themselves, began to wane.  The American laborer no longer provided his own essentials of survival, but instead deposited his effort into a vast and complex economic machine.  His yield, his “wage,” served as the only symbol of his output, a rebuttable presumption of the value of his labor.  And, as his commercial appetites continued to increase, American workers started to rebut the presumption.  The wage system was being thrown into upheaval:  if the market would not set a wage sufficient to meet the American worker’s standard of living, he would set it himself.  “It seems to me that when a man, my father, works all day long, he ought to have a beautiful home, he ought to have good food, he too ought to get a chance to appreciate beautiful music.”  Thus formed a new basis for “individual rights” in American politics.

Accordingly, Americans, as laborers, resorted to collectivism to feed their individualism as consumers.  The marketplace had suddenly become too large and ominous, and the means of production too mechanical and rote, to expect to have much chance of improving one’s lot without collective action.  Though businesses would later seek to avoid unionization through “welfare capitalism,” it was already clear that unionization and government regulation were tools too powerful to go unused.  Moreover, the new strain of antisocial individualism complained of by Progressives was of relatively recent vintage, created in large part by a growing industrial economy fortified by a strong central government.  The cultural and societal growing pains caused by this surge in industrialization were serious concerns. Like the ills of slavery, since government had aided the accession of uncorked individualism, it was natural and perhaps even appropriate to look to government to redress its abuses.

What Conservatism Is

Someone mentioned recently that they had not been able to find any sources that defined conservatism as a political philosophy.  Though merely an enthusiast of the subject, I thought I’d sketch out some of the more common strands of the ideology.  In compiling this list, I made reference to my notes in Russell Kirk’s The Roots of American Order and Richard Weaver’s Ideas Have Consequences.  Neither the list nor the sources are by any means comprehensive, obviously.  I welcome any thoughts or comments.

1.      Conservatism, as opposed to liberalism, is a bottom-up political theory:  It depends that there first be an underlying social order.  Government is transitory; society is permanent.  Society makes some claim of  man’s relationship with the transcendent.  If a political theory does not make some provision for who man is and what he is for, it has little hope of making any provision for what the state is and what it is for, other than an agglomeration and exercise of raw power.  For purposes of law and politics, society defines the morality of the people.  (This is not to suggest that conservatism embraces moral relativism, only that judges and legislators in a conservative framework would make no resort to sources external to the people for reviewing or dictating society’s norms and values.)

2.      Further, with respect to the characteristics of the social order underlying the political, the social order must establish the dualism of the material and the transcendent, must ground the world of ought, and enforce the notion that the apparent does not exhaust the real.  “All the aspects of any civilization arise out of a people’s religion:  its politics, its economics, its arts, its sciences, even its simple crafts are the by-products of religious insights and a religious cult.  Fur until human beings are tied together by some common faith, and share certain moral principles, they prey upon one another.”  Russell Kirk, The Roots of American Order.  “For men, their acts must have significance.  Men are miserable unless they find ‘a disposition or arrangement of equal and unequal things in such a way as to allocate each to its own place.’  They must have purpose in their existence.”  Id. at 161.  Without a telos, the faculties of reason and rationality employed by the lawmaking function of a political order would be directionless.  “Reason alone fails to justify itself. . . . We have no authority to argue anything of a social or political nature unless we have shown by our primary volition that we approve some aspects of the existing world.  The position is arbitrary in the sense that here is a proposition behind which there stands no prior.  We begin our other affirmations after a categorical statement that life and the world are to be cherished.”  Weaver, Ideas Have Consequences at 19.  “The ways of society are not the ways of reason, but of the customary experience of the species, beginning with small family-groups and growing upward into the state.  It is perilous to meddle, on principles of pure rationality, with valuable social institutions that thus are natural developments, not logical schemes. . . . It is quite possible to reason ourselves out of virtue and social enjoyment.”  Kirk at 361, 364.

3.      Conservatism is based on concepts of natural law.  Thus, just as society precedes the state, morality precedes society.  “Man must order his soul in conformity with divine laws, Plato said; only thus can order in society be obtained.”  Kirk at 81.  Conservatism thus assumes the universality of human nature across culture and geography and the objectivity of certain rights, duties, and norms.  Contrast this with liberalism, which takes bohemianism as the ultimate realization of man, whose destiny is mere activity.  Society, as the natural enemy of bohemianism, is thus at odds with the liberal state.  Liberalism, then, as a top-down political theory, assumes a strong political order make weak the underlying social order so as to pave the way for bohemianism.

4.      Similarly, the conservative construction of liberty is defined and limited by the natural law and man’s telos defining what sort of creature he is and what he is for.  Thus, even certain private, consensual activity is beyond the bounds of natural liberty, and thus may, in appropriate cases, be censured by the state.

5.      Rights and liberties are metaphysical and dogmatic, and thus do not depend on any test of social usefulness for their recognition and enforcement.

6.      Though political conservatism recognizes and accommodates the normative and cultural views of the society, it is itself neutral with respect to these ends.  “Ordinarily a people do not choose one constitutional form or another:  they find themselves necessarily under the sort of government which is suited to their social circumstances.  In a sense, any people obtain the kind of government they deserve—or, at any rate, the kind of government which their history and their conditions of existence have brought upon them.”  Kirk at 354.  Thus, while a conservative political system may reflect normative and cultural values, it does so at the behest of the society, and not for the purpose of reaching any ends of bound up in the nature of the political system itself.  Contrast this with liberalism, which stridently takes positions on political questions concerning the summum bonum, fragmented and schizophrenic though these views may be.

7.      Law is an articulation of the social order of a people.  Good law, thus, flows from the assent of the people.  “Stable government grows out of law, not law out of government.  If the political power decrees positive laws without reference to general consent, those laws will be evaded or defied, and respect for law will diminish, so that force must be substituted for justice.”  Kirk at 189.

8.      In recognition of and deference to the natural law, conservatism is decentralized.  The purpose of a centralized government, such a liberal political ideology, is to correct for “errors” and “injustices” worked by nature, equalizing what is by nature unequal, fortifying what is by nature weak, and dissolving what is by nature strong.  Such a planned and centralized government puts the fate of each citizen in the hands of men, whereas before he was at the mercy only of nature.  Conservatism acknowledges that nature is not always “fair” as we understand it, but that it is always more pernicious for man to purport to right what nature has set in place for each on his own to overcome.  The rightness of this position does not depend on whether nature or the state is the better arbiter of justice, but on the understanding that man is fundamentally at odds with any personified arbiter of his fate, and thus for the state to take the place of nature and nature’s God is to invite its own destruction.  For a man to reject nature and nature’s God is lamentable, but it has little effect on the social order.  Were nature and nature’s God to be replaced by the state, it would only be a matter of time before man will have cause to lose faith in the state just as he previously lost his faith in the transcendent.  This time, however, the apostasy will cause the social and political order to fracture and ultimately be torn asunder.  The concern here is about the legitimacy of a political order when it purports to replace the transcendent, and especially, when its outcomes are objectionable.  Churches may align the people’s will to God’s and make peace for the inequities of nature.  What will reconcile the people’s will to the state’s for its inequities?

9.      Collectivism is antithetical to conservatism in ways other than how it is antithetical to libertarianism, since conservatism embraces community and holds that man cannot be understood if not with respect to his nature as a social being acting as part of a culture.  Instead, the threat of collectivism is its capacity to divorce man from his mortality and his relationship with nature.

10.  Equality, too, is of little concern under conservatism.  The political order cannot be expected to do better than to afford the protection of the laws in equal measure to all people.  While certain moral values concerning readjusting the lot of the poor, the sick, or the aged may be expressed through the law, it is generally beyond the proper scope of the political order to pursue equality for its own sake.  “Nothing is more manifest than that as this social distance has diminished and all groups have moved nearer equality, suspicion and hostility have increased.  In the present world there is little of trust and less of loyalty.  People do not know what to expect of one another.  Leaders will not lead, and servants will not serve.”  Weaver at 43.

11.  Conservatism seeks the preservation of the established order not primarily because that order is the greatest that might be devised, but so that the laboriousness of effecting the changes that, due to human nature, would be all too frequently desired, might expose the errors in such desires and to thus reveal the permanently true.  No less important is its effect to establish continuity of the human experience, to permit the father to communicate ideas to the son and make the realness of his experience evident.  “[T]he chief trouble with the contemporary generation is that it has not read the minutes of the last meeting.”  Weaver at 176.

Assaults on the Constitution

After reading Erwin Chemerinsky’s The Conservative Assault on the Constitution recently, I’ve come to understand just how policy driven his approach to the Constitution is.  I plan to write up a review of his book, but I thought it was noteworthy that not even Bill Maher defends the Democrats’ shameful politicization of the judicial confirmation hearings of Robert Bork in 1987, and yet Dean Chemerinsky hales it as a victory for the Progressive view that a right to abortion, among other things, ought to be judicially amended to the Constitution.  To understand his book, one need only slightly recast its title:  call it “The Conservative Assault on the Unwritten constitution”—as in, the unwritten, judicially rendered constitution—and you start to get the picture.  Nearly every case Chemerinsky surveys involves conservatives chipping away at Progressive decisional law, not U.S. Constitutional law.  Supreme Court decisions rolling back affirmative action and arcane forced desegregation programs, permitting crèches and Ten Commandments displays on state or local government property, paring down the prophylactic exclusionary rule of criminal evidence for the benefit of good faith law enforcement, and so on.  The fact is, without the improper judicial contortions of the Constitution of the past 80 years, there would be no cause for the “assault” Chemerinsky is railing about.

Yet, Chemerinsky does not even hint at the Progressive assault on the Constitution that began in the 1930s.  Instead, Chemerinsky rebuffs the argument that the text of the written Constitution ought to be supreme, since this would ignore subsequent decisional law that regards that text as unimportant.  To insist on adherence to the Constitution’s text, Chemerinsky argues, “urges a radical change in constitutional law.”

Thus, it is the unwritten, post-1930s “constitution” that concerns Chemerinsky.  And he calls the pre-1947 interpretation of the Establishment Clause—which applies only to “Congress,” and not state and local governments—“radical,” and expresses relief that Clarence Thomas is the only Supreme Court Justice who would faithfully apply the actual text of the First Amendment.

In this regard, Chemerinsky is absolutely right that this fraudulent “constitution,” conjured by Progressive activists, is under assault.

Chemerinsky’s results-oriented constitutionalism was nicely demonstrated in an interview yesterday on Hugh Hewitt’s show.  Juxtaposed were two recent issues involving the exercise of federal power:  the individual health care mandate, and WikiLeaks.  When asked whether Congress could force individuals to buy health insurance, Chemerinsky characterized Congress’s authority to conscript Americans into economic activity as all but unquestionable, and the personal right not to engage in certain economic activity as simply nonexistent in the constitution:

I think that the real argument you’re making is that we should have some personal right to not purchase health care if we don’t want to purchase health care.  I don’t think there’s any doubt that the health care industry is a huge part of the economy and what Congress is doing is regulating interstate commerce in terms of something that has a tremendous economic effect.  I think the real objection is people say, ‘the government shouldn’t be able to force me to buy health care if I don’t want to.’  But that’s a very weak constitutional argument.  There’s no such right in the constitution.  And in fact, I think under post 1937 constitutional law, the Court would say, it’s reasonable for the government to believe that everyone’s going to need health care at some point in his or her life, vaccinations for children, people with communicable diseases have to be treated….”

I won’t get into the arguments why he’s wrong here, but it should be clear to anyone that Congress’s power to “regulate” commerce does not come with the power to mandate participation in commerce.  That’s not a regulation of commerce—it’s a regulation of people.  We would expect a constitution that allowed government control over even minute economic decisions of private individuals to look much different than the one we actually have.

But when asked whether this same government—and its broad, unquestionable power to regulate people’s activity for their own good and the good of the nation—could shut down WikiLeaks in the interest of national security, Chemerinsky suddenly changed his tune:

I don’t know what the outcome would be, but obviously that would raise huge First Amendment questions, and I think the burden would be on the government to show that there was material there that would cause great harm to national security.  And I don’t know the answer to that question, but I think the reason why the Obama Administration has not gone down that path is enormous concern over the First Amendment.

How do we decide that when it comes to this issue, the government has the burden (and I agree that it does), but when it comes to regulating individuals’ decisions whether and how to engage in commerce, the government is not just authorized, there’s “not even a credible constitutional argument,” as Chemerinsky said, against its authorization?

It is extremely troubling how highly intelligent and effective liberal lawyers like Chemerinsky are able to move effortlessly between the written Constitution of 1787 and the written Bill of Rights of 1791, on the one hand, and the unwritten constitution of the 1930s and beyond, on the other.  Following the Progressive Assault on the Constitution of the past 80 years, liberals and Progressives have devised a handy arsenal for themselves, giving them Constitutional language when it suits them, or case law when it doesn’t, in order to arrive at literally any outcome they desire.

Distinguishing Conservatism and Progressivism

I’ve been thinking a bit about Tim Sandefur’s recent comment to this post, and specifically this comment, in which I argued that whatever conservatism’s moral perspective toward “the human condition,” conservatives are committed to achieving it through culture and society, not through coercive government controls.  Sandefur excepted as follows:

This is false. Conservatives are every bit as fond of Progressivism as liberals—moreso, in some ways. Progressives were actually quite socially conservative, and believed, as today’s conservatives do, in using the state to make people good—i.e., to control marriage, sex, education, the use of alcohol or drugs, and all those other social issues. The main body of conservative intellectuals is extremely close to the Progressives of the turn of the century–Robert Bork, for example. True, there are some conservatives, of whom you are one, who take natural rights seriously in ways Progressives did not, but so far as I know you remain every bit as ready to use the state to control marriage, sex, education, et cetera. I recommend on this subject Michael McGerr’s outstanding book “A Fierce Discontent.”

I know Tim well enough that it came as no surprise that he would take exception to my use of a libertarian anti-Progressivist argument in the cause of conservatism.  And I will give him that conservatism is a moralistic ideology that does not shy from expressing its values through the law.  Same-sex marriage is one example.  Abortion is another.  Drug use, prostitution, suicide, euthanasia, bestiality, the list goes on.  In this regard, it can be difficult to explain how conservatives are different from Progressives:  though they have different values, they merely seek to express them through the law like conservatives do.  So aren’t conservatives and Progressives just birds of a feather?

I don’t think so.  First, it is important to recall that society precedes government.  That is, not only are the two distinct, but the latter is inferior to the former in its representation of the values and beliefs of its constituent members.  Law and government reflect only a very narrow subset of the important values and beliefs of the society out of which it arises.  And where law and government fail to represent the society’s important beliefs and values—and particularly, where it misrepresents them—their authority is greatly injured.

For conservatives, moral authority arises out of society.[***]  Beliefs about marriage, the beginning of life, the end of life, and certain of our most important relationships are of utmost importance in establishing and maintaining the bonds among individuals that make up our underlying society.  In certain cases, these beliefs and values will find their way into our laws.  But it is important to note the direction these values and beliefs flow:  from society to government.  That is, government is meant to play a supporting role in the underlying society’s culture and norms; it is not meant to conceive and advance them on its own, foisting them on the society which the government is meant to serve.

For Progressives, on the other hand, this is exactly what government does.  Through either minority factions or temporary populist flare-ups, most Progressive laws are political or factional phenomena that in large part do not reflect the values of the underlying society.  Minimum wage or maximum hours laws, for example, are not even the sorts of laws that are traditionally harbored by an underlying society.  That is, a conservative society might adopt laws forbidding work on Sunday, in expression of its Christian beliefs and rituals.  However, that same society would search its underlying values in vain for anything compelling it to adopt laws forbidding a worker to labor more than 10 hours in a given day.  Birth control and “family planning” programs are another easy example:  the goal of eliminating children born to poor families is one felt more strongly by government planners than by the society itself.

Progressivism, I think, was borne of two new presumptions: that the federal government should make society “nice” (a justifiable presumption in the example of bringing emancipated blacks “up” from slavery, for example); and, due to technological and intellectual innovations, that government could make society “nice.”  But I’m having trouble coming up with many examples (other than, perhaps, federal education mandates and the “war on drugs”) of how conservatives embraced the Progressive movement for the purpose of expressing any more of its values and beliefs in the law that it hadn’t already grown accustomed to doing.

 

*If you are wondering why I capitalize “Progressive” but not “conservative,” know that I am, too.

**By the way, I finished Tim’s new book, The Right to Earn a Living, over the Thanksgiving holiday.  It is a wonderfully detailed account of the myriad ways government wrecks our ability to make a living.

[*** I should clarify/correct this statement. By moral authority here I am speaking in the descriptive sense, not the prescriptive. That is, what a people (and in this post I am conceptualizing people in their pre-government condition) believes on moral issues is the source of moral legitimacy, at least as against the later-contrived state. This is not meant to touch on who or what in pre-government society establishes that moral baseline (e.g., the mob, the clerics, scriptures, etc.). It is only meant to say that whatever is moral is such without respect to the state.]

“Producing policies that improve the human condition”

From Fear and Loathing in Georgetown, an excerpt from a 2005 article by Jonathan Chait:

Liberalism is a more deeply pragmatic governing philosophy–more open to change, more receptive to empiricism, and ultimately better at producing policies that improve the human condition–than conservatism.

The really odious component of this statement is disguised as an implied premise: that “the human condition” can be improved, or that such is a legitimate or principal aim of government. This is one of the key ways that liberals and conservatives talk past each other. Liberals rail that conservatives don’t come up with plans to solve the world’s problems and “improve” the “human condition.” Conservatives, in my view, don’t care about all that stuff. Perhaps “time horizons” is a way to take some wind out of liberals’ sails, a way to counter that the way to solve the problems liberals’ are worried about is to take the long view. But really, the truly conservative position is that government ought to sit tight until there arise the sort of problems government is instituted to address; to observe the difference between threats to security and threats to comfort; to stop acting like Mrs. Reverend Lovejoy at every Dateline story, for heaven’s sake. “Won’t somebody PLEASE think of the CHILDREN!!!”

There will always be some deficiency in the “human condition” to be remedied, improved, assuaged, or eliminated.  But this is part of the human condition—to be forever dissatisfied.  To assume that government is assigned the task of perfecting the human condition is the big lie implicit in all this talk about employing empiricism and social science in lawmaking.

Society and Order

Man is rational; but also man is rebellious and depraved, and his evil impulses cannot be controlled by the Law Rational alone.  If men are to live in society, there must be provided checks upon their wills and appetites.  Scripture, though unerring, does not furnish a complete set of rules by which men may govern themselves in all circumstances and ages.  Therefore men have developed, and submitted themselves to, what Hooker calls the Law Positive—enacted law, that is, law enforced by the commonwealth.  To set aside that positive law would be to ruin all civil social order.

. . . .

So Hooker is a convincing exponent of the idea of continuity—of the principle that in concerns of both church and state, we must seek to link generation with generation.  Churches and states are immortal corporations: if we break down established laws, thriving customs, and beloved ceremonies, we rashly ignore the lessons of the past and endanger society’s future.  Our religion, our culture, and our political rights all are maintained by continuity: by our respect for the accomplishments of our forefathers, and by our concern for posterity’s well-being. Just as the individual human body can survive only if its vital continuity is maintained during its processes of organic change, so the Church and the civil social order must perish unless law and custom remain the same from year to year, decade to decade, century to century.  Any man is foolish who disregards the beneficent incorporation of society, which goes on though individuals perish; for it is not in the power of anyone to create a new church or a new society out of whole cloth.

Russell Kirk, The Roots of American Order.

On Political Affiliations and the Importance of Choosing Sides

As I mentioned here, blogger E.D. Kain recently disavowed conservatism.  I mentioned this sort of thing intrigued me, and apparently it’s intrigued a lot of others, too.  Here’s Andrew Sullivan:

Apropos yesterday’s post about E.D. Kain’s break with conservatism, I want to add something: ideological conversions are often interesting to discuss, as evidenced by Daniel Larison’s post here and Mr. Kain’s response. And it’s always refreshing to read someone who is forthrightly working through their beliefs in public, especially when that includes grappling with critics in an earnest attempt to arrive at the right answer.

But it’s worth remembering that what a writer ends up calling himself shouldn’t ultimately matter nearly as much as it does. An insightful mind remains so regardless of ideological affiliations. Arguments should be evaluated on their merits, as opposed to whether the idea therein or the proponent advancing it is authentically liberal, conservative, or libertarian. Heretic hunters on the right and the left very much resent it when dissidents lay claim to an ideological label. Almost always it is irrational when they do so.

So long as Mr. Kain persists in offering intellectually honest writing that advances conversations, I’ll follow his stuff wherever it’s published, regardless of whether he calls himself a liberal, an independent, a socialist, a centrist, a neocon, a neo-liberal, a conservative, an atheist, an Islamic bridge builder, or a centaur advocate. The thoughts he expresses on any given issue are themselves a lot more important and informative than whatever label he finds most accurate, and I don’t see why I’d ever rely on a vague proxy to judge one of his pieces when I could just read it and agree or disagree as appropriate.

I’ll go ahead and take the contrary position.  Yes, yes, I concur in all the flattering remarks about an insightful mind despite ideological affiliations and a rose by any other name and so forth.  But the labels are important for the fundamental reason that it lets people know where you hail from.  Or whether instead you’re an ideological nomad or expatriate.  In politics as in international travel, people are going to want to see your papers so they can know what they’re dealing with.

Thus, for my part, Kain’s disavowal of conservatism profoundly affects the import and meaning of his ideas.  A conservative who supports the PPACA and the individual mandate?  This suggests there must have been some very serious thought put into the question of federalism/states’ rights, why tort reform was not a better first step, the potential negative constitutional consequences of further expanding the Commerce Clause, etc.  I had assumed these were enormously difficult questions for Kain if he adhered to some form of “conservatism.”  Perhaps not so much now?

Or, take another example:  A conservative who believes the federal Constitution guarantees a national right to same-sex marriage?  Perhaps he recently experienced a profound, life-changing event or has been personally and emotionally influenced by someone close to him?  There’s little else to explain Ted Olson’s decision to enforce the same-sex marriage agenda through the courts.  And it’s tough to explain expressly because Olson has been such an iconic conservative.  If this were a man who just announced his positions on views as they occurred to him, he would not be such a meaningful figure in the political and legal communities—and his change of tack on the same-sex marriage issue would not have been so important for same-sex marriage advocates.

I know Kain does indeed think critically and deeply on nearly everything he writes about.  But it puts a great burden on his readers, and takes something important away from his work, to distance himself too dramatically from ideological affiliations.  It is too much to expect a reader to refer back to a writer’s entire body of work to discern and reconcile seeming contradictions.  Unless a person identifies himself with an ideology, even with substantial qualifications, it becomes enormously difficult to get any kind of rough picture of how that person associates ideas such as to determine whether taking a pro or a con position on an important issue is a profound deviation from an undercurrent of ideological positions, or a natural outgrowth of them.

Why Isn’t Everyone a Progressive?

E.D. Kain explains why he no longer considers himself a conservative.  He gives a lot of reasons, some prompting one to ask why he ever considered himself a conservative.  But testimonials of anyone publicly “switching sides” always interest me, and prompt me to re-examine just why it is I find the left such a non-option.  And I think I can plow through all the unimportant things down to a couple of the core psychological-emotional motivating factors that defines whether any given person will identify himself as “conservative” or “liberal.”

One of those things is whether you truly believe a “conservative” or a “liberal” political worldview is sustainable.  I admit I am intrigued by the notion of having every necessity of life guaranteed by the state, particularly when “necessities of life” include things like high-speed internet access and hip organic cuisine—one just cannot survive with the stigma of being unstylish or out of touch with leftist fads.  And I am aware that Europe’s experimentation with this sort of indulgent welfare state is, by certain accounts, going quite well.  But forgive me if I just don’t believe it.  While I’m sometimes tempted by the idea of packing up and heading to a generous European welfare state and living it up while the ship goes down, my gut reaction is that the ship is in fact going down.  I don’t think one can ever not be a fiscal conservative unless one is convinced that the new-math of welfare-state economics can actually work beyond a few generations.  And I’m not [convinced].

Another deep-seated psychological reason I cannot throw my lot in with liberals is that I don’t have compassion for the most of the would-be beneficiaries of their social safety nets.  Some, sure.  But I’ve come to the realization that what I might consider terribly unpleasant, others consider perfectly tolerable.  Take one example:  My wife, though conservative, is a filmmaker and photographer, and thus has a long list of Facebook friends on polar opposite sides of the political spectrum.  When a video went around the internet a while back profiling an Orange County, California family living in a motel room, the liberal bloc of my wife’s Friends noted the travesty of conservative OC governance that would let something like that happen in such a relatively wealthy area.  But this family was paying approximately $800 a month to live in a motel room.  While Orange County is still an expensive place to live, it’s not so expensive that apartments can’t be found for that amount.  Moreover, when the interviewer asked the family why they don’t move somewhere, perhaps out of state, where the cost of living is much more affordable.  The family responded they had no interest in moving out of temperate and beatific Orange County.

This epitomizes the majority of accounts of the impoverished that I’ve been exposed to in my lifetime.  Discomfort, yes.  Dire straits, hardly.

Anyone who harbors an over-abundance of concern to provide the kind of comfort they can’t imagine living without to those who, given the choice, might take it or leave it, is going to gravitate toward progressivism and its generous safety nets.  The rest of us who are concerned with true “sustainability”—not just the vogue environmentalist kind, but true long-term political survival—will tend toward conservatism.

Conservatives Can Disagree Over Gay Marriage; They Cannot Disagree that Perry Is a Disaster

There are lots of conservatives who don’t think same-sex marriage is any big deal, that Prop 8 was at best a justifiable reaction to the California Supreme Court’s detour from its judicial wits in In re Marriage Cases.  But Perry is not a valid part of our system of “checks and balances,” it is not a proper exercise of our counter-majoritarian constitutional structure, and it is not an exemplar of sound judicial reasoning.

With this in mind, I responded to this blog post by a self-described “conservative” as follows (with minor edits for clarity and to fix typos):  [UPDATE: As it turns out, Michael did not claim to be a “conservative”; instead, the title of his post, “A Conservative to the Rescue!” referred to Judge Walker, the author of the Perry decision.  At any rate, this does nothing to change the relevancy of my interrogatories concerning how a conservative, whether Michael or Judge Walker, could possibly defend the decision.]

Michael,

I did not downplay the extent to which gay people are “injured by the law.” In point of fact, they are not injured. The state of California merely decided to maintain the definition of marriage—and thus retain the state’s established system of family welfare and entitlements—to that which has defined that social institution for thousands of years, and which to its citizens most plainly supports a valid state interest in seeing that children and born to and raised by their biological progenitors in a family structure firmly entrenched in our culture. As I mentioned in my article, I am familiar with the work of at least one of the “social scientists” repeatedly cited in the ruling, M.V. Lee Badgett. The “injuries” cited in the ruling, and which I repeated in my post, typify the argument Badgett makes: that gay people want, most of all, a badge of social and psychological acceptance, rather than remediation for any actual concrete harm. This sort of social agitation should not be entertained in our court system.

Anti-miscegenation laws are also inapposite here. Racial classifications in the law are subject to strict scrutiny by the courts. And rightly so, given the established history of racial discrimination in this country. But homosexuality is not a suspect class that has been entitled to heightened scrutiny in our courts. Moreover, plaintiffs (to my knowledge) did not argue that the seven million Californians who ratified Prop 8 had any animus toward homosexuals, or that the state of California exhibited any pattern or practice of invidious discrimination against homosexuals. Thus, the state may make classifications with respect to sexual orientation by the same standard as it makes any other classifications—that is, as long as it has a rational basis for doing so.

And the seven million Californians who voted for Prop 8 did have a rational basis. That a group of social “scientists” (they just don’t make scare quotes big enough) disagree does not transform seven million people into irrational bigots.

For example, as to the proffered basis that the people of California are entitled to tread carefully in effecting profound shifts in their bedrock social institution, Judge Walker ruled: “Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change.” That’s an extraordinary statement. That social “scientists” have the ability to “rebut any claim” that radically changing the institution of marriage—in direct contravention to the will of the majority of the members of that institution—would amount to “a sweeping social change” is going to be a surprising bit of news to a lot of people—including the Ninth Circuit and, eventually, the Supreme Court. Orin Kerr at Volokh explained this well here:

Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.

Second, Judge Walker’s reliance on his factual findings to defeat the argument about the pace of social change seems to miss the point. The claim about sweeping social change is an an ex ante argument about uncertainty. Predicting the future is tricky business, the argument runs. Views of enlightened social policy can change, and our perspective today may or may not seem right tomorrow. For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct. Whether this is a valid constitutional argument or not, it seems odd to respond to it by making a factual finding about what the future will be like and then saying that the announced factual findings make the concern irrational. It misses the entire argument, which is about our knowledge-uncertainty, by trying to make it a matter of the judge’s power to find facts.

Suffice it to say, the legal reasoning in the ruling is really quite problematic.

The more interesting question, however, has to do with the judicial activism in the decision. In Lawrence v. Texas, Justice Kennedy writing for the Court struck down a Texas law criminalizing homosexual sodomy, and in so doing, providing the germ that grew into the legal rule underlying Perry. That is, that all moral legislation is unconstitutional as a violation of liberty under the Fourteenth Amendment. This was a radical holding, and although Kennedy sought to limit it in Lawrence (by stating but not explaining that it only applied to private sexual activity [and even then, that the holding may be limited to laws criminalizing such conduct]), Justice Scalia observed that judicial rulings (as opposed to legislatures) are governed by strict adherence to logic and rationality.  (Perhaps the specter of Scalia’s dissent was lurking in the back of my mind when I wrote this post last November.)  Thus, by striking down the justification for Texas’s anti-sodomy law, the Lawrence court had likewise taken the first step toward dismantling all moral legislation concerning marriage, adult incest, polygamy, obscenity, animal cruelty, prostitution, bestiality, etc.

As I have implored another blogger here and here, I would likewise ask you: if the people are not sovereign over the courts in matters such as marriage, what of their sovereignty is left?