Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Herbert Croly was perhaps the most important intellectual of Progressivism, which seems odd, given the tortuous language and convoluted emotive passages that characterize his work. Progressive Democracy was not Croly’s most significant book. That was his earlier work, The Promise of American Life, a book that supposedly so influenced Theodore Roosevelt it is said to have provided the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election.

Progressive Democracy is of the same style and substance as Croly’s other writings. It rests on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that is the inevitable evolutionary end of Progressive politics. It reflects the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress into the promised land. Hence, Croly’s insistence that the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Describing the societal realities of the late 18th century, Croly declared, “Some form of essentially representative government was at that time apparently the only dependable kind of liberal political organization. It was imposed by the physical and technical conditions under which government had to be conducted….The function was performed in the several states according to the method best adapted to local traditions and by the class which had proved itself capable of leadership. In the twentieth century, however, these practical conditions of political association have again changed, and have changed in a manner which enables the mass of the people to assume some immediate control of their political destinies.”

The new political mechanism was direct democracy, the most authentic expression of popular will. It was beloved, at least in theory, of leftists of all stripes. It found expression in many states through the adoption of the initiative, referendum, and recall. Croly considered these reforms to be misdirected and inauthentic if they were used only to restrict government power and to correct government abuses. As such, they were still shackled by old conceptions about the primacy of individual rights and by the suspicion of powerful government that had characterized the earlier period of Jeffersonian republicanism. “If the active political responsibilities which it [direct democracy] grants to the electorate are redeemed in the negative and suspicious spirit which characterized the attitude of the American democracy towards its official organization during its long and barren alliance with legalism [the Constitution as a formal system of checks and balances that controls the actions of the political majority], direct democracy will merely become a source of additional confusion and disorganization.”

There was, then, bad and good direct democracy. The good form was one that produced the proper, Progressive social policy, and accepted the dominance of powerful state organs that could accomplish that policy:  “Direct democracy…has little meaning except in a community which is resolutely pursuing a vigorous social program. It must become one of a group of political institutions, whose object is fundamentally to invigorate and socialize the action of American public opinion.” Note some key words:  A political system must be measured by “meaning,” such as the quintessentially Progressive “Politics of Meaning” associated most recently with Hillary Clinton. “Vigor” and “action,” two words that were markers of Progressive ideology and rhetoric at the personal, as well as the political, level. Wilson, the two Roosevelts, and John and Robert Kennedy strove mightily to present themselves as embodying those very characteristics. As the journalist Jonah Goldberg has demonstrated, so did those who opted for a more pronounced fascist political program, both here and abroad. Finally, “social” or “socialize,” as the antidote to the traditional American insistence on the rights of individuals that were derived from sources outside the State and which trumped the demands of the collective.

In that good form, popular participation was, in effect, a thermometer to measure the temperature of the public’s support for an activist political program that it heeded the rulers to mind. Croly advised, “A negative individualistic social policy implies a weak and irresponsible government. A positive comprehensive social policy implies a strong, efficient and responsible government….A social policy is concerned in the most intimate and comprehensive way with the lives of the people. In order to be successful, it must rest on the basis of abundant and cordial popular support.” Instead of a government constrained by the text and the received traditions of fundamental law, government would be limited only by the popularity of its increasingly comprehensive policies.

Despite Croly’s perfunctory disclaimer, popular participation was to be little more than a plebiscite on actions to be taken by a legislature otherwise unrestrained by the formal structures of the “Law.” “The government must have the power to determine the Law instead of being circumscribed by the Law,” he wrote in Progressive Democracy. As Croly, and Woodrow Wilson before him, recognized, legislatures would not be up to the task of regulating and administering such an increasingly intrusive paternalistic State. Hence, a powerful administrative apparatus was required. That signature component of the modern regulatory state—the vast, unelected bureaucracy—was necessarily beyond the control of the people, though always, loyally and selflessly, laboring for their weal.

Four results inevitably followed. In the legal academy, the Progressive vision of the supervisory state freed from the grasp of the past gave rise to the “Living Constitution” movement in support of liberal judicial activism and the conflation of law and policy through “sociological jurisprudence.” In politics, the growth of the general government (federal share of GDP rose from 2.5% in the early 20th century to 25% a hundred years later) and, in particular, the rise of a permanently powerful Presidency characterized by the new ideal of the (pseudo)-populist charismatic leader reflect the endurance of the Progressive program. In the social realm, the bureaucratic and administrative state has grown as it has weakened institutions that might challenge it for the loyalty and unity of the collective citizenry, such as the family, religious institutions, service clubs, charities, unions, and even political parties. In policy, the nanny state “cares” for the child-like dependent populace and receives its acclaim for an enveloping and increasingly unsustainable program of bread and circuses.

But like H.G. Wells’ society of Eloi and Morlocks in The Time Machine, the Progressive state was not as benign as its propagandists depicted it on the surface. The Progressives had a strong Darwinian bent. Woodrow Wilson in his writings was fond of comparing the State to an organic entity governed by the biological laws of Darwin, not the mechanics of Newton. Evolution and change were the constants of such a system; evolution required adaptation to change; adaptation could not be left to chance but must be administered rationally. Where survival of the fittest was the rule, only the fittest could rule. That the government was not under more direct control of the people was due to what Croly euphemistically described as the small size of the fund of social reason. Therein is mirrored one of the traits commonly attributed to the left/liberal intellectual. He professes to idolize humanity and the principle of popular government, but he despises humans and distrusts individual autonomy and political choice.

In view of that scarcity of social reason, Croly explained, “[the] work of extracting the stores of reason from the bosom of society must be subordinated to the more fundamental object of augmenting the supply of social reason and improving its distribution.” This was a task critical to the success of government unconstrained by the old Constitutional structures. “The electorate must be required as the result of its own actual experience and unavoidable responsibilities to develop those very qualities of intelligence, character, faith and sympathy which are necessary for the success of the democratic experiment.”

While Croly argued that education would provide the means of human progress and the nurturing of social reason among the mass of people, there were those who were unfit for such efforts. Croly, like Woodrow Wilson, believed in the need for state regulation of marriage and reproduction to combat crime and insanity and to promote the propagation of the truly fittest. When he was governor of New Jersey, Wilson signed a law of just such tenor that targeted various “defectives” for sterilization. The Supreme Court, in an opinion by progressive Justice Oliver Wendell Holmes, later upheld this key element of Progressive ideology.

We are still in the grip of the Progressivism championed by the Roosevelts, Wilson, and Croly. President Obama was styled by some of his admirers in the press as the new Lincoln. Other times he has been depicted as the new Franklin Roosevelt. While the latter is more fitting than the former, Obama’s style, ideology, and policies have their roots in the Progressivism of Wilson and Croly. The markers are all there:  the perpetual campaigning designed for constant popular mobilization; the cradle-to-grave welfare state; the contempt for traditional constitutional allocations of political power; the desire to determine the Law rather than be circumscribed by it; the transformation of politics into a quasi-religious experience of personal and national renewal, as shown by the religious imagery associated with the President in song and picture, by the rhetorical cadences of his sermonizing speeches, and by the topics of his speeches about stopping the rise of the oceans and beginning the healing of the planet; and the calls to his followers to “get angry” and “get in the faces” of his political “enemies.” The President promised a “fundamental transformation of America” as his goal. Or, as Michelle Obama declared in a speech in 2008 during her husband’s campaign for the Presidency, “Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed.”

Herbert Croly could not have said it better.

Read Progressive Democracy by Herbert Croly here:

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:

Friday, June 7, 2013

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