Guest Essayist: Professor Joerg Knipprath


Dissenting from the Supreme Court’s 1905 opinion in Lochner v. New York that found unconstitutional a maximum-hour law for bakery employees, Justice Oliver Wendell Holmes, Jr., declared, “[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Holmes’s point is valid at least to the extent that the Framers–most of whom adhered to the then-dominant mercantilism–did not encrypt the grand contours of a particular system of political economy in the Constitution’s provisions aligning and balancing individual liberties and governmental powers. Yet, the Constitution also protects personal rights whose exercise is more likely to be realized in a political system premised on fundamentally liberal (in the classic meaning) conceptions of the role of the government and the individual’s relationship to the State than in a system that rests on a different view of such essential matters.

The interesting dichotomy Holmes sets up is the crux of a broader political and philosophic conflict that goes well beyond a single Supreme Court case about Mr. Lochner’s decision to permit a bakery employee to earn extra money before Christmas in violation of a state labor law. The traditional American view, represented in the Declaration of Independence and the Bill of Rights, assumed that an individual had certain rights that were not subject to the vicissitudes of shifting political majorities. The specific political mechanisms to protect those rights—while also recognizing the necessity of government to control acts harmful to the community—were balanced in the Constitution through a conscious design of separation of powers among branches of the national government and through a “dual federalism” that divided such coercive powers between the states and the general government.

Towards the end of the nineteenth century, the developing mass economy created by the technological advances of the Industrial Revolution and reflected organizationally in the division of labor and resources among workers, managers, and investors, produced an increasingly large and militant labor union movement. As Elihu Root, Theodore Roosevelt’s former Secretary of War, told the American Bar Association in 1912, “The relations between the employer and the employed, between the owners of aggregated capital and the units of organized labor…all present new questions for the solution of which the old reliance upon the free action of individual wills appears quite inadequate. And in many directions the intervention of that organized control which we call government seems necessary to produce the same result of justice and right conduct which obtained through the attrition of individuals before the new conditions arose.”

With that, the philosophic and constitutional traditions in which the American political system operated came under increasing attack. Rights were not inherent in the “individual,” and group interests were not perceived as built on individual choice. Rather, progressives such as Woodrow Wilson and Herbert Croly, characterized society as “organic” and composed of various interest groups, each of which had a role to play in the body of the state analogous to the functions of organs in the human body. Just as a healthy human body required healthy organs, none of which were “out of sorts,” the interests of disparate groups in society had to be balanced to preserve the health of the State. Individuals were analogous to cells of these various organs, undifferentiated within their groups and valuable only for their contribution to the health of those groups and, by extension, of the State. “Rights” of individuals were derivative of rights of their group, which rights were defined, in turn, by the needs of the State. In jurisprudence, these ideas were represented in the sociological school of academics, such as Roscoe Pound and Benjamin Cardozo, and in the view that law, including “living” constitutional law, must be a tool to advance “beneficial” interest group policies rather than merely to provide basic rules of conduct to allow maximum freedom of individual pursuits within an orderly society.

In matters of constitutional governance, the Progressives reviled and ridiculed the Framers’ Constitution as an anachronism that stood in the way of a “new” relationship between the citizen and government, variously termed the New Freedom (Wilson, who had also written a book by that name) and the New Deal (Franklin Roosevelt). The organic nature of the State required rejecting classic American dispersal of power that reflected popular distrust of government, and embracing powerful and effective government as a benevolent force that would act for the good of all. Politically, this would be achieved by collective action channeled into direct participatory democracy. However, lest such democracy lead to unhealthy results caused by the uncontrolled self-interest of particular majorities, the system must be controlled by a powerful and independent executive and an elite of technocratic mandarins, just as the brain in one’s head rationally makes informed decisions for the whole body’s benefit. Wilson tellingly described the President as “the vital [political] link of connection with the thinking nation.”

As the author and journalist Jonah Goldberg has so effectively demonstrated in the book Liberal Fascism, Fascism, Socialism, and American Progressivism in their various iterations have drunk from the same brackish well of class identity, economic resentment, fallen—yet perfectible—human nature, and a politically militant but faceless majority led by a gnostic elite. To be sure, there have been clear differences in political goals among these groups and within them. More importantly, they often have differed about the means to achieve them. When they were rivals for political power, these groups could argue vigorously and, indeed, violently with each other. But the fundamental commonality Goldberg describes is striking, as is the commonality between the adherents of these ideologies in the early 20th century and their modern descendants on the Left, “liberal” and “progressive” alike.

More militant than the American Progressives were the Socialists, led by Eugene V. Debs in their political manifestation as the Socialist Party. Debs, a former steam locomotive fireman, had come to prominence in 1894 as the leader of the American Railway Union during the union’s support of the striking Pullman Company workers. The strike was broken in part by President Grover Cleveland’s decision to send in troops to guard the trains after Debs’ union defied a court injunction against obstructing the railroads and the delivery of the mail. Debs served a term in jail for contempt of court, where he immersed himself on his time and on the taxpayers’ dollar in the writings of Karl Marx and various socialists. Having converted to the “gospel according to St. Marx,” in the historian Samuel Eliot Morison’s memorable phrase, Debs parlayed his new notoriety into a nomination for President on the Social Democratic Party ticket in 1900. Debs received fewer than 88,000 votes, representing merely a fraction of a percent of the votes cast. He ran in every election thereafter until 1920, except 1916. Each time, his vote totals increased, until he won nearly a million votes in 1920, while serving time in prison for his advocacy of non-compliance with the military draft during World War I.

In the United States, both Progressives and Socialists professed to stand for the common man, which, with the declining importance of farming as a livelihood, meant the American worker—or the “working class,” if one wishes to adopt more overtly socialist terminology. Organized labor had four long-sought goals: maximum-hour legislation, minimum-wage laws, a ban on child labor, and the elimination of “yellow dog” labor contracts, under which an employee promised as a condition of employment not to join a labor union. The movement had moderate success in obtaining the passage of favorable legislation in Congress and a number of states. However, the Supreme Court, in a series of famous decisions between 1905 and 1923 struck down many of these laws as violations of the liberty of contract of individuals found (or, according to critics, “discovered”) in the due process clauses of the Fifth and Fourteenth Amendments.

The foundering of these legislative initiatives on judicial shoals lurking beneath the surface of the constitutional text played into the hands of those elements of society who saw the courts and the traditional Constitution as an obstacle not just to be overcome, but to be replaced, on the journey to their “just society.” While the Socialists were among that group, they were distinguishable from the later Communists, in that they had a national outlook and still relied on American methods. Socialists ran for local, state, and national offices, winning the mayoralties of 18 American cities in 1911, and nearly winning those offices in Cleveland and Los Angeles. Like the Progressives, the Socialists were primarily a middle and upper-middle class movement, but, like their modern descendants, one even more centered on an intellectual elite. They were most certainly not a “workers’ party.” Debs himself regarded most labor leaders as corrupt.

In the 1912 election, the Progressives reached new heights of influence. Their wing in the Democratic Party obtained the nomination for one of their most prominent theoreticians, Governor Woodrow Wilson of New Jersey. The Republicans re-nominated William Howard Taft, nominally of the more traditional wing. Still, Taft had largely followed the path set by his predecessor, Theodore Roosevelt. Taft was more cautious in policy and more sober in political rhetoric than Roosevelt, thereby inducing the latter’s ire for Taft’s perceived insufficient dedication to the cause. But Taft’s administration sometimes produced more concrete results for Progressive programs than Roosevelt’s speechifying had accomplished. Conservationism and “trust-busting” were two examples. Finally, there was Roosevelt himself, in his apotheosis as a progressive, running as the nominee of the Progressive Party he had helped to found. After their summoning by his oratory, “We stand at Armageddon, and we battle for the Lord!” his supporters would follow wherever he would lead. He assured them he was ready for the rigor of battle, “I am feeling like a bull moose.” Over four million of them followed him to the voting booths, more support than Taft could garner at the ballot box, but not enough to defeat Wilson, whose 42% of the popular vote was enough for a crushing electoral vote victory, 435 to 88 for Roosevelt, to just 8 for Taft.

Americans for whom this plethora of Progressives was not militant and dependable enough to secure their desired new constitutional, political, economic, and social new order, voted for Eugene Debs. They numbered slightly more than 900,000. While this was not Debs’ highest number of votes, at 6% it was the largest percentage of the popular vote he or any other Socialist Party candidate would get in an American presidential election.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    TY for another wonderfully educational and enjoyable essay on progressiveism and socialism.

    As a boy I was always mystified on why the rich politicians of the Democratic party thought they were best qualified to look after the interests of the common American. It smacked of arrogance and hypocrisy. “faceless majority led by a gnostic elite.” captures it quite well.

    Human beings have a very difficult time assigning baselines to numbers and situations without some reference point. In behavioral psychology they are called heuristics or biases. The classic case is whether a stock is over or under priced. If the price was $40/share 1 month ago, it is perceived as cheap if is $30/share today. The fact is that it may still be grossly over priced if the cash flows cannot support the debt payments. Yet the many people will buy the stock seeing it as being on sale.

    Progressive liberals of today should subtly support the more ardent socialists in their circles. Doing so makes the main line liberals appear relatively centrist in their ideology. I am sure Wilson appeared a moderate compared to Debs. Does b. Sanders make H. Clinton look moderate? If Wilson, Obama, Clinton are seen as moderate then any and everybody else appears to reactionary, bigoted, hateful, etc. Republicans can use the same tactic.

    I am amazed at how easily human beings can convince themselves they are better and different than those who came before. “They didn’t manage it well, but we’re smarter and better -we’ll get it right this time. Progressives believe they have conquered these flaws, or declare them assets instead of liabilities. The Framer’s knew well the frailties of mankind, and gave us a government that put checks and balances on those fatal flaws.

    “Now these things happened to them as an example, and they were written for our instruction, … Therefore let him who thinks he stands take heed that he does not fall.”

    Extremely enlightening. Ty



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