THE MOVEMENT THAT HAS GONE SO FAR TO ALTER OUR constitutional practices is now almost half as old as the Constitution. It has been powerful. Called from the beginning the “Progressive movement,” it began in a combination of despair and hope, hope gaining intensity from despair.
The despair is evident in the doctrine of history. Woodrow Wilson wrote that “[t]he philosophy of any time is, as Hegel says, ‘nothing but the spirit of that time expressed in abstract thought.’”1 Of course this must apply to his thinking, too, which means that his thinking, too, was doomed to transience. He knew that. John Dewey wrote that the history of “liberalism is a history of phases,” that the “conception of liberty is always relative to forces that at a given time and place are increasingly felt to be oppressive.”2 This means that his conception of liberty was transient too. Dewey knew that. Frank Goodnow wrote of the Declaration that “the actual rights which at the end of the eighteenth century were recognized were, however, as a matter of fact influenced in large measure by the social and economic conditions of the time when the recognition was made.”3 This means that the rights for which he contended were also a product of the condition of his time. He knew that.
Goodnow was a teacher. The first president of the American Political Science Association, he taught at Columbia, and he was president of Johns Hopkins. Of teaching, he wrote that those in charge of educational institutions are “under a very solemn obligation.” On the other hand, he said,
We teachers perhaps take ourselves too seriously at times. That I am willing to admit. We may not have nearly the influence which we think we have. Changes in economic conditions, for which we are in no way responsible, bring in their train, regardless of what we teach, changes in beliefs and opinions.4
A classroom is a very exciting place for one who has good students. Goodnow did. There is the magical process of learning together, of discovery, and from that process comes a bond that lasts a lifetime. In the classic works this experience is treated as one of the few highest things that human beings can do. That is because it can touch on the things that call us up toward places beyond time or condition. People give their lives for causes; in the classroom one may discover which of them are good.
College students are by definition unsure of what problems they will confront or what they will do when they confront them; they must study the rules that apply in all circumstances, at least if there are such rules. College, which derives from a word that means partnership, is ennobled by this task and also by the fact that it is done together, among friends, among human beings possessed of rational souls made by definition to talk at the same time they are made to reason. If nothing lasting happens in the classroom, it is denigrated. If whatever happens there can be overcome by “economic conditions,” then the exploration “of beliefs and opinions” becomes less valuable. That is despair.
This despair also supplies the ground of a certain kind of hope. What about these “economic conditions”? What if one could manipulate them? Might he not then become the controller of beliefs and opinions? He would not be doing this by reason, true enough, and he would not be able to say that the beliefs and opinions that he produced had any standing outside the reasons for his manipulations. These reasons are located in his will, and the source of his will is in the pressures and economic conditions he has already encountered. It is a circle, one of a very different kind than the circle formed by the need for virtue in government and the ability of good government to foster virtue.
History, then, is a story of circumstances playing on human beings. Human beings are shaped by these circumstances, and also they shape the circumstances back. We discover this through modern philosophy, a branch of science. Philosophy becomes a form of making. It supplies the hope that we can shape our world to fit our will.
The political hope of Progressivism is that science can be placed in control of administration. For this to be effective, administration must be unfettered. It must not be compromised or hampered in the way that separation of powers requires.5 This will require a much larger government. It will require what Professor Klarman calls the new “fourth branch” of government, which is not restrained by representation or separation of powers. Still it will be a safe form of government. Safety would come from the high-mindedness of those who occupy the new places in government, from their scientific training, and from the fact that their interests would be taken care of (through good pay and long tenure). The Progressives attempt thereby to leave people like themselves in charge of the future, people who can be trusted because they are obedient to the creative canons of science. If the interests of these people are satisfied, then their interests will not be adverse to those of the rest of us.6 To make assurance double sure, the new administration must be conceived as outside politics completely. On these conditions, scientific administration can take us to a society of greater plenty and closer equality than we have ever known.
These doctrines have, over the course of a century, transformed American political practice. The government now approaches half the size of the economy as a whole, and it may go where and do what it pleases. Our retirements, our health, and the relations inside our families are now the business of the federal government. Each business, large and small, is also under its purview. It is so pervasive that it seems to be the only way for the society to work. Moreover, the administrative state is now increasingly involved in the very electoral process by which the people exercise their sovereignty over political power. It acts as a regulator and as an interest group, its unions being one of the largest sources of funds for candidates and causes. The pollster Rasmussen has been doing a series of polls to see how many people think the government operates with the “consent of the governed.” It has been falling steadily; in August of 2011 it reached a low of 17 percent.7
One last element of the contrast between these two kinds of government must be named: the new kind of government does not suffer under one restraint that guided and limited the original American government. It does not look to a sanction for its actions beyond the contrivances that we make, here among us in our time. Believing in a liberation of human power in order to do more good for human beings, it calls into question at the same time the whole idea of good. One may think it dangerous for this reason.
Constitutionalism in the old sense seems a relic of a distant past. Article I, section 8, of the Constitution lists in seventeen paragraphs the things about which Congress may legislate. Half of them concern national defense. The rest mainly concern the guarantee of an unimpeded national system of commerce and property rights and the ability of the federal government to operate on the territory it possesses. There is no word about education, health, retirement, welfare, or any of the hundreds or perhaps thousands of areas of policy in which the Federal government now operates.
We cannot soon have a government that operates entirely within the confines of the Constitution. That will take a work of restoration and recovery of many years. It will entail the growth of civic institutions that match and surpass those built in early America. These must involve the whole citizen body in the job of running the government and the society. It will require that we take up again the hard work of approximating, so far as humanly possible, the principles of our land, which are so elevated that they can “never [be] perfectly attained.”8 It will require community organizing of a different kind. It will require that we abandon bureaucracy and centralized administration as a form of rule. The Founders thought that it was not mainly by dictating means but by sharing ends that free people cooperate.
Although it will take time to recover constitutional government, a start can be made now, and significant results can be achieved soon. We have to recover the meaning of certain principles, and we have to recover the methods of constitutional rule as they are exemplified by the best practices from our past. There we will find examples both local and national.
The central precepts of the American government are found in the Declaration of Independence, and they encompass the inseparable conceptions of nature, equality, rights, and consent. To know the purposes of the United States is to understand these terms.
Constitutional rule operates in service of these principles. Its genius is its ability to deploy but also restrain the use of power and to capitalize on voluntary action to advance the public good.9 Observing America, Tocqueville remarks that he sees more government in America than he saw in France, which was the first centralized nation state. Of government, he writes,
In general, one can say that the little details of social orderliness that render life sweet and comfortable are neglected in America; but the essential guarantees to man in society exist there as much as everywhere else. Among the Americans, the force that the state administers is less well regulated, less enlightened, less skillful, but a hundred times greater than in Europe. There is no country in the world where, after all is said and done, men make as many efforts to create social well-being. I do not know a people who has succeeded in establishing schools as numerous and as efficacious; churches more in touch with the religious needs of the inhabitants; common highways better maintained.10
This is a picture of constitutionalism at work. In another place he remarks that a European obeys a public official because he represents a superior force, but an American obeys because he represents a right.11 “One can therefore say that in America man never obeys man, but justice or law.”12Tocqueville goes on to remark on the propensity of Americans to form associations and practice self-rule to the benefit of the society. To see government as the servant of the people breeds a certain energy and civic-mindedness in the people.
We have had welfare systems from colonial days, but they were organized locally and relied heavily on voluntary action.13 Government itself meant something different because so much of it was carried out by the citizens acting as volunteers. Decentralized forms made possible, for example, the devotion of huge energies to education, which was always understood as the foundation of “an open field and a fair chance.” The system of equal and decentralized property rights was seen as a great leveler. Not for America a feudal system in which powerful people have the say over the use of property by ordinary citizens.14 The problems of welfare and education existed and were seen; the citizens found different ways to address them than we follow today.
In addition to examples of local and private action, we have in our past a rich legacy of national legislation intended to meet the same social problems that are now the province of the administrative state. These, too, were of a different character than we have now. Today we proceed by rules, detailed to the point of incomprehensibility, passed by administrative agencies that combine legislative, executive, and judicial powers in the same hands. Earlier laws met the key criteria laid down by James Madison in the Federalist:
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?15
The Congress under the Articles of Confederation passed the largest single subsidy for education in American history. The legislators did this in the summer of 1787, while the Constitution was being written. The law they passed is the aforementioned Northwest Ordinance, which provides the method by which new territory can be admitted into our Union as free and equal states, not colonies. Together with its partner the Land Ordinance of 1785, the Northwest Ordinance provides for the immediate sale of the land in the Northwest Territory16 into private hands to pay off the debt from the Revolutionary War. It reserves one section (1/36 of the whole) of each township to provide “education in that township.” It states the purpose in Article III: “Religion, morality, and knowledge being necessary to good government and happiness of mankind, school and the means of education shall ever be encouraged.” The gift of federal land was transferred as an endowment to the states, the federal government no longer to regulate. The Northwest Ordinance is just under 3,000 words long.
The Homestead Act transferred about 10 percent of the land area of the United States to unnamed private parties in lots of 160 acres each. The only condition was that a family live on the land and work it five years. Eventually more than 1.5 million people availed themselves of this opportunity. President Abraham Lincoln signed it into law in May 1862, and like so much that he did, it is among the most generous acts of government policy in human history. It applies to all. It can be read and understood by all. It is 1,380 words long.
These laws are shining examples of the grand constitutional practices of free government in operation. These violation of these practices is named in the Declaration of Independence as causes of rebellion against the king. They are reaffirmed in the contemporaneous Virginia Declaration of Rights and the Virginia Constitution, and in the Massachusetts Constitution that came a little later. They are taken to their highest state of perfection in the Constitution of the United States.
Such a government is representative in the source of its powers; therefore the opinions of the governed are constantly solicited and constantly refined; therefore the consent of the governed is constantly renewed.
Such a government is separated in its powers; therefore the governing and the governed are held constant to their purposes and improved both in deliberation and in action.
Such a government is limited in its scope; therefore the sovereignty of the people is preserved as a real and abiding fact. Such a government breeds freedom and responsibility by involving all in the work of governing.
The genius of the United States of America may be found in the cooperation of all the causes that bring government into being. There is a set of principles that locate man in his place in nature, above the beasts and below God. There is a people, living upon a vast land, responding to the call of those principles to form the first self-governing nation in history. There were some statesmen, aware how unusual were their capacities, determined to use them for the rights of all. They wrote a Constitution that the people adopted to become the most enduring and successful in history. Because all these causes must cooperate to produce the freedom and justice that we have enjoyed for so long, all of them must be preserved or all of them will be lost.
Because the principles that our country serves, and the institutions by which it serves them, have a beauty hardly matched in all history, they sound a call that all can answer. In their attraction and in our response is the hope for a free people. That is the Founders’ key.
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