Barriers to Dismantling Constitutionalism: America’s Founders and Their Safeguards Designed in the United States Constitution Against Progressivism
At a Townhall meeting in Hayward, California in 2010, then Congressman Peter Stark conceded: “Yes, the Federal government can do most anything in this country.” This statement would be shocking news to the likes of James Madison, Thomas Jefferson, George Washington, even “big government” Alexander Hamilton. A government which can “do most anything” is certainly not the government the Framers tried to create in 1787. If Congressman Stark was right, the “limited and enumerated powers” government that Madison believed they had designed no longer existed. If a limited government no longer exists in the United States, there has to be a reason, a cause for such a dramatic change.
The cause, in one word, is “progressivism.” Progressives have worked diligently, mostly quietly, to bring us to the point where “the Federal government can do most anything in this country,” and particularly where the federal court system is willing to elevate the progressive political agenda to the status of constitutional law.
This is not intended to be a comprehensive essay on progressivism, books, books and more books are devoted to that subject; but to proceed we must have a common understanding of what progressivism is and what progressives believe with which to compare to the principles of the United States Constitution.
prə-grĕs′ĭ-vĭz″əm, noun, “A political ideology that favours progress towards better conditions in society.”[i] “As a political movement, progressivism purports to advance the human condition through social reform based on advancements in science, technology, economic development and social organization.”[ii]
Who doesn’t want to better the human condition? to improve our standard of living? Who would object to such a lofty goal? If that is the goal, how does a society work toward bettering its social, economic and humanitarian conditions? “The devil’s in the details.”
“In the United States, progressivism began as an intellectual rebellion against the political philosophy of Constitutionalism as expressed by John Locke and the Founders of the American Republic, whereby the authority of government depends on observing limitations on its just powers. What began as a social movement in the 1880s[iii], grew into a popular political movement referred to as the Progressive era; in the 1912 United States presidential election, all three U.S. presidential candidates claimed to be progressives.”[iv]
The winning progressive of the 1912 presidential election, Woodrow Wilson, is credited with coining the phrase “Living Constitution,” which holds that the Constitution must be reinterpreted frequently to keep it “relevant” to modern times. But to fully understand progressivism’s effect on the presidency, we must go back to America’s first acknowledged progressive President: Theodore Roosevelt.[v] Roosevelt’s approach to presidential power was that“[t]he executive power [is] limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under it constitutional powers.”[vi] In other words, there are no limitations to presidential power except those specifically mentioned in the Constitution or acts of Congress. To Roosevelt, the Constitution vested the President with near unlimited power.
But Roosevelt and progressives who followed him ran into twin obstacles: the U.S. Constitution and the principle of majoritarianism. The Constitution created a limited-and-enumerated-powers government and required respect for the law, law created by legislative majorities. Majoritarianism requires 51 percent or better support for a policy to become law. Progressives have never been in a majority in the United States – only a small percentage of Americans, about 12 percent of American adults, [vii] today consider themselves “progressive.” But progressives have one trait in abundance: an unwavering belief they are right, and patience for the “long fight.”
Their first objective was to dismantle the restrictions placed on the federal government by the Constitution, and then, knowing that would not be sufficient, to mold the federal judiciary, particularly the Supreme Court, into a body willing to look beyond the law in favor of societal “progress,” a court system willing to follow the philosophy of Supreme Court Associate Justice Thurgood Marshall: “You do what you think is right, and let the law catch up.”[viii] Until recently, they had succeeded famously in both respects.
What do Progressives believe? Although there are political parties called “Progressive” in other countries, notably countries where socialism is ascendant, there is no Progressive Party in the United States. Wikipedia identifies the Democratic Party as the current embodiment of progressivism in the United States.[ix] But within the Democratic Party there are “classical liberal,” moderate democrat, environmental and other factions. Progressives, while making great inroads, are still a minority. Research by Elaine Kamarck at the Brookings Institution in 2018 found that 44 percent of Democrats identified as a “progressive,” compared to 29 percent in 2016 and 26 percent in 2014.[x]
Bottom line: there is no single acknowledged platform or list of progressive beliefs. But here’s my view after considering multiple sources.
Utopianism. If there is one thing that distinguishes progressivism from other forms of political philosophy, it is an unflinching belief in the perfectibility of man and society. Human society has myriad problems; but progressivism holds that they can all be solved if we simply work together – and implement the solutions progressives have come up with. Mankind is innately good and those infrequent deviations when men and women do wrong should be handled carefully and gently – incarceration is usually a last resort (unless politics get involved; witness the January 6th prisoners).
Atheism/Agnosticism. Although a progressive form of Christianity has reportedly emerged in the last few years (focusing on the so-called “Social Gospel”), progressives typically have no use for God, divine revelation, divine providence, or the concept of original sin.
Universalism/Globalism. Progressives believe a single, one-world government is the perfect vehicle to bring about progressive ends as quickly and efficiently as possible.
Statism. Progressives view government as a tool, perhaps the best tool to achieve the perfect society. While they tout “freedom from government interference” they do not hesitate to use the power of government to achieve their societal ends.
Collectivism/Cooperation. Progressivism holds to a diminished view of individualism and private property, replaced by the need for everyone to cooperate to achieve progressive goals, to include forced “cooperation” if necessary.
Historicism. Historicism is a belief that history must be understood in context, and if the proper progressive-anointed context is not present in the traditional way of teaching certain history, the history must be re-interpreted in the “correct” context (the 1619 Project being the perfect example).
Enhanced Group Rights, Diminished Individual Rights. A diminished view of free speech, for example, replaced by limitations on speech in pursuit of “harmony,” “non-offensiveness” and an obsession with “disinformation.” British police arrested someone recently because their repost of a post on Facebook caused someone “anxiety.”[xi]
Social Justice. “Social Justice” is measured by equality of outcome rather than equality of opportunity. Social Justice is of paramount importance to the progressive, and the full strength of government should be employed to achieve it. “Too much economic and political power is concentrated in too few hands.”
Living Constitution. As has been quoted, progressivism is at least partially a response to constitutionalism, the idea that a written constitution both empowers and limits the power of the government it creates. But progressives do not abandon the Constitution altogether when they encounter its limits, they simply re-interpret the document to remove the limits. “Progressivism insists that the principled American constitutionalism of fixed natural rights and limited and dispersed powers must be overturned and replaced by an organic, evolutionary model of the Constitution.”[xii]
A typical response of a progressive to being told that something can’t be done for constitutional reasons was voiced in 2010 by Speaker of the House, Nancy Pelosi: “If the gate Is closed, we will go over the fence, if the fence is too high, we will pole vault in.”[xiii]
Use of the Courts
In a 1912 speech, Theodore Roosevelt complained that the courts often obstruct the will of the people in an unproductive manner. I’m not sure which “people” Roosevelt was talking to, but if you believe this, how do you overcome it? You populate the courts with progressive judges and justices. When you can’t seem to get the Supreme Court to see things your way, you employ a little “arm twisting” such as the famous “Court Packing” threat of FDR.
Perhaps the most compelling proof that progressives see the court as the mechanism for enacting policy preferences which don’t stand a chance in the democratic process was the recent “full-court press” used to try to prevent the confirmation of three conservative justices to the Supreme Court. But even this theater was over-shadowed by the apoplectic reactions that followed the Dobbs decision, in which a conservative-majority court returned the issue of abortion to the democratic process in each state. This, predictably, has led to demands to “pack the court” and return the court to the progressive policy-factory it once was.
Use of the Public Schools
Progressive educator John Dewey, typically called the “father of modern public education,” wrote: “I believe that education is the fundamental method of social progress and reform… a regulation of the process of coming to share in the social consciousness; and that the adjustment of the individual activity on the basis of this social consciousness is the only sure method of social reconstruction.”[xiv] (Emphasis added.) Today, it is safe to say, progressives dominate the U.S. public school systems. They control the curriculum, administration, library book selections and of course the actual teaching that goes on in most classrooms. According to the Center for American Progress, the public school system is graduating more progressives each June.[xv]
The Constitution’s Challenges to Progressivism
Originalism. There is no question that the Founders intended the Constitution to be interpreted as they understood it. In an 1824 Letter to Henry Lee, James Madison insisted that:
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for its faithful exercise.”
Thomas Jefferson’s view was similar:
“On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
“But the Founders didn’t have to contend with the global threat of climate change” is the frequent retort today. “Certainly, the Constitution must be adapted to deal with this modern threat.” So, who best to “adapt” the Constitution to modern conditions? Why, nine unelected judges in black robes, of course. We certainly can’t leave such an important issue to democracy now, can we?
Checks and Balances. Leaving aside the myth that the Framers created three “co-equal” branches of government,[xvi] the framers did imbed certain safeguards against a single branch of government assuming unwarranted power. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”[xvii] Unfortunately, many of these “checks and balances” have been systematically disassembled by the Supreme Court. For a list of the court decisions which have essentially shredded the Constitution’s limits on governmental power see here or read: The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.
Separation of Powers. This doctrine is another traditional restraint on the accumulation of unintended power which has been at least partially dismantled by the Supreme Court. The 1989 decision in Mistretta v. U.S. found that:
“… our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” (Emphasis added.)
In other words, the non-delegation of powers doctrine held by John Locke and others of the Founding Era would be ignored, the people not consulted, and Congress simply given this ability to delegate. Making matters worse was the opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[xviii] The Supreme Court declared that federal courts should defer to the decisions of Executive Branch agencies when those agencies interpret the guidance in a statute if the “agency’s answer is based on a permissible construction [emphasis added] of the statute.” Some of these unsupported agency rules are challenged in court and overturned, and Congress has the power to overturn them as well, but a legal challenge is an expensive process, a quarter of a million dollars or more, so not every improper rule is challenged.
The Failures of the Progressive Vision
Progressivism came about as a challenge to constitutionalism. It should be clear by now that progressivism and constitutionalism simply cannot coexist; one must yield.
The basic problem with progressivism is that there is no end state, no way to tell whether progressive policies have worked; until the nebulous, undefinable state of “perfection” is reached, there can be only a steady, monotonous march onward toward “progress.”
Progressivism has brought us a federal government that can regulate every aspect of business, whether it deals with interstate commerce or not; a Code of Federal Regulations exceeding 180,000 pages; $2 Trillion in additional costs to U.S. businesses due to regulation compliance, a cost passed on to customers of those businesses; 4,500 plus federal crimes (compared with four in the original Constitution); the unwarranted taking of private property; in short: a government “that can do most anything in this country.”
Constitutionalism yielded during the Warren Court years and made somewhat of a comeback during the Rehnquist Court. What is disturbing to progressives now is the prospect of a new conservative court rolling back the “progress” progressives have made over the last 40-60 years. If there is reason for hope for constitutionalism today it lies in the present Roberts Court, placed during the Trump administration, with a 6-3 conservative to progressive balance. If the court can survive the progressives’ “full-court press” to change this balance, America might begin to see more of the progressive agenda to dismantle the original intentions of the United States Constitution, dismantled in the years ahead.
For further reading:
America Transformed: The Rise and Legacy of American Progressivism, 2021, by Ronald Pestritto.
Excuse Me, Professor, Challenging the Myths of Progressivism, 2015, Lawrence W. Reed.
Progressivism, A Primer on the Idea Destroying America, 2014, by James Ostrowski.
Plundered, How Progressive Ideology is Destroying America, 2012, by Michael Doffman.
How Progressives Rewrote the Constitution, 2006, by Richard Epstein.
The Progressive Era, Liberal Renaissance or Liberal Failure, 1965, Arthur Mann, ed.
The Supreme Court
Supreme Disorder; Judicial Nominations and the Politics of America’s Highest Court, 2020, by Ilya Shapiro.
Judicial Tyranny, 2014, by Mark Sutherland.
Storm Center, the Supreme Court in American Politics, 2011, by David Obrien.
Packing the Court, The Rise of Judicial Power and the Coming Crisis of the Supreme Court, 2009, by James Burns.
The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.
Men In Black, How the Supreme Court is Destroying America, 2005, by Mark Levin.
Courting Disaster, How the Supreme Court is Usurping the Power of Congress and the People, 2004, by Pat Robertson.
The Tempting of America, 1990, by Robert Bork.
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at firstname.lastname@example.org, on Facebook or Twitter @constitutionled.
[i] The American Heritage® Dictionary of the English Language, 5th Edition.
[iii] Some writers identify the Progressive Era as 1880 to 1920; I contend the Progressive Era never stopped.
[v] Roosevelt was President from September 14, 1901 to March 4, 1909.
[vi] Theodore Roosevelt, An Autobiography of Theodore Roosevelt, ed., Stephen Brennan (New York: Skyhorse Publishing, 2011), 304–10
[vii] Accessed at https://news.gallup.com/poll/141218/americans-unsure-progressive-political-label.aspx Note, 54%of respondents were “unsure” whether the progressive label fit them.
[xii] Bradley D. S. Watson, accessed at: https://amgreatness.com/2021/08/11/how-progressives-rewrote-american-history/
[xiii] Nancy Pelosi, accessed at: https://www.speaker.gov/newsroom/if-the-gate-is-closed-we-will-go-over-the-fence-if-the-fence-is-too-high-we-will-pole-vault-in
[xiv] John Dewey, My Pedagogic Creed, School Journal vol. 54 (January 1897), pp. 77-80
[xvi] It is an irrefutable fact that the powers of the Congress eclipse those of either of the other two branches.
[xvii] James Madison, Federalist 47.
[xviii] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
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