The Conservative Sensibility Page 8

  If human beings are essentially historical, if they are merely creatures capable of adapting to cultural promptings, then the concept of human nature is erased. If so, all that can be known, and all that can be pertinent to politics, is the nature of human beings in a particular social context at a particular moment. If there is no sense in which there is an eternal human nature, there cannot be eternal principles—certainly no self-evident truths—of political organization and action. Because progressivism sought to supplant nature with history as a source of standards for judging political arrangements, it was fitting that a history book became one of progressivism’s defining texts. Because progressivism held that new economic forces had rendered America’s political arrangements anachronistic, it was appropriate this history text would be written by a Columbia University professor who began in the history department but moved to a position teaching politics and government. And because the advancement of progressivism required disparagement of the Founders who had put in place the political system that progressivism aimed to discredit, it was understandable that this text would teach that economic motives—basically, venality—explain the Founders’ political behavior. Hence Charles Beard’s An Economic Interpretation of the Constitution of the United States, published in 1913, the year a Princeton professor became president of the United States.

  A century later, it is difficult to appreciate this book’s canonical status for a generation of progressive historians. The Constitution, Beard explained, is a “delicate instrument” designed by the Founders—“we cannot help marveling at their skill”—for the purpose of rendering the popular will impotent by shattering it. Madison, Beard noted, had seen danger in “an interested and over-bearing majority.” The purpose of progressivism, Beard thought, was to emancipate majorities and enable them to succeed in their attack on entrenched wealth and power. The Founders’ “leading idea was to break up the attacking forces at the starting point: the source of political authority for the several branches of the government.” The separation of powers guaranteed the “disintegration of positive action.” And in Beard’s judgment, the most sinister of the powers was that of the judiciary, which used “the sanctity and mystery of the law as a foil to democratic attacks.” He thought “the keystone of the whole structure” is “judicial control,” which he called “the most unique contribution to the science of government which has been made by American political genius.” The power of judges nominated by presidents and confirmed by the Senate, and the fact that the two political branches of government have different constituencies and electoral rhythms, means, Beard lamented, that “a complete renewal of the government at one stroke is impossible.”18

  The philosopher John Dewey was a pioneer of pragmatism, and it was understandable that progressivism in politics emerged simultaneously with pragmatism in philosophy. Pragmatism, as Harvey C. Mansfield says, “seeks a science of the emergent, the evolving, the developing.”19 It is result-oriented, although it has difficulty saying exactly why whatever emerges constitutes improvement. It simply says that by emerging from whatever was, it represents, by definition, advancement. At the time, advancement meant moving up from individualism. In the first decades of the twentieth century, progressives based their attack on individual rights on a rejection of the concept of individualism. Dewey argued that “the individual is society concentrated,” and government should be “as comprehensive as society.” In 1918, after the invigorating experience of social solidarity and comprehensive government during World War I, Mary Follett, a philosopher and student of organizational theory and behavior, said that Dewey’s vision posed no threat to liberty. Once we are emancipated from the idea of “the particularist individual,” and hence from the idea of natural rights belonging thereto, we can reach “a true definition of liberty”: “We see that to obey the group which we have helped to make and of which we are an integral part is to be free because we are then obeying ourself [sic].…The state must be no external authority which restrains and regulates me, but it must be myself acting as the state in every smallest detail of life.”20

  Breaking an unruly society and unregenerate individuals to the saddle of the state was the mission of Herbert Croly, a diligent scold whose severities earned him the reputation as “Crolier than thou.” Few American books first published in 1909 are still in print; one of them has never since then been out of print, and its influence on American governance goes marching on. Herbert Croly’s The Promise of American Life, a manifesto for the progressive movement, was perhaps the twentieth century’s most influential book on American politics. Teddy Roosevelt adopted Croly’s phrase “new Nationalism” and adopted Croly as an adviser after reading the book (it was given to him by Louis Brandeis) during an African safari. It was, however, the Democratic administrations of Woodrow Wilson (whom Croly endorsed in 1916), Franklin Roosevelt, and Lyndon Johnson that were animated by Croly’s belief that “national cohesion” required the emancipation of Americans from “traditional illusions,” especially the Jeffersonian tradition of “individualist and provincial democracy.” Croly spoke for a growing class of progressive intellectuals and politicians for whom progress meant movement away from local institutions and attachments, which they regarded as retrograde. Progress meant conscripting the people into a national consciousness and collective undertakings. This must include, Croly said, “increasing control over property in the public interest.” He believed that “human nature”—human nature, not just behavior—“can be raised to a higher level by an improvement in institutions and laws.”21 If that is so, however, there really is no human nature, only malleable human material taking whatever shape that institutions, and the elites that command them, choose.

  In 1909, progressives were full of faith in modernity, meaning, among other things, experts applying science to society. This would be done for the improvement of what Croly called “unregenerate citizens,” by whom he meant most citizens. He was candid where later, more circumspect progressives would be cryptic. He said “the average American individual is morally and intellectually inadequate to a serious and consistent conception of his responsibilities as a democrat.” So national life should be a “school”: “The exigencies of such schooling frequently demand severe coercive measures, but what schooling does not?” And “a people are saved many costly perversions” if “the official schoolmasters are wise, and the pupils neither truant nor insubordinate.”22 Croly’s book was a blueprint for a twentieth-century progressive aspiration—the state as schoolmarm.

  Croly was forthright about his desire to “emancipate American democracy from its Jeffersonian bondage,” the bondage to the doctrine of natural rights. Croly called for “a new Declaration of Independence” that would affirm that Americans are “free to organize their political, economic, and social life in the service of a comprehensive, a lofty, and far-reaching democratic purpose.” To achieve this, Americans must be cured of the “superstitious awe” with which they regard what he called, dismissively, the “existing” Constitution. “There comes a time in the history of every nation,” he wrote, “when its independence of spirit vanishes, unless it emancipates itself in some measure from its traditional illusions.”23 And what is the American illusion that must be shed? The belief—the superstition, Croly thought—that the Constitution, and the limited government it erects for the protection of natural rights (another superstition), is adequate to the exigencies of modern America.

  In 1914, five years after The Promise of American Life, Croly published Progressive Democracy, in which he made explicit his belief that such democracy is properly contrasted with constitutional democracy. Progressive democracy aims for “the emancipation of democracy from the bondage to the Law,” partly by making it much easier to amend the fundamental law. He thought progress would be served by making the Constitution amendable “according to the dictates of a preponderant prevailing public opinion.” To that end, amendments should be submitted for approval by a mere majority of both houses o
f Congress, or by just one-fourth of the states, and amendments should be approved by referendums—by a majority of votes in a majority of states. This would virtually eliminate the distinction between the Constitution and ordinary law, so the popular will would no longer be thwarted by constitutional obstacles. Transcending what Croly disparaged as “passive constitutionalism” would enable the government to get on with a bold agenda of “positive economic and social functions.” “Republicanism”—by which Croly meant, primarily, Theodore Roosevelt—had “been prophetic of progressivism” but could not go sufficiently far in that direction because of “the limitations of its underlying traditions,” meaning the natural rights tradition that had been emphatically reaffirmed by the first Republican president.24

  Croly had the progressive’s distaste for political parties, whose partisanship was incompatible with progressivism’s aspiration for government by disinterested experts served by and implementing social science: “American parties had been organized to work with the Constitution, and to supply the deficiencies of that document as an instrument of democratic policy.…The emancipation of the government from the Law brings with it the emancipation of the democracy from its bondage to partisan organization. The government itself, rather than the parties, is to be responsible for the realization of the popular will.” Croly spoke of the nation “trying to pull itself together for a new attack upon the problems of its life” and attempting to “release its collective life from the bondage to bad habits.” He included among those bad habits Americans’ excessive regard for the Constitution and for the natural rights tradition it presupposes. “American nationality,” he said, “was associated at its birth with the attempt to create a righteous political and social system.” However, “this ideal of social righteousness has been gradually disentangled from the specific formulation in which lawyers and political thinkers embodied it at the end of the eighteenth century.” Continuing his theme of bondage, a term still heavily freighted in Croly’s day with association with slavery, he said: “The bondage of the national will has been due, not to the existence of the ideal, adhesion to which would always be binding and liberating, but to the sacredness attached to a particular method of applying the ideal, which was the result of a genuine and valuable but limited and, in part, superseded phase of political and social experience.” The constitutional system of limited government had been fine long ago, but had become a system of enslavement that must be “superseded.”25

  With a nod to the strength of the superstition he was trying to cure, Croly still referred to the authors of modern America’s misfortune reverently as “the Fathers.” But he said that they committed a cardinal sin in the eyes of those who, like progressives, had come to see the world, including the social world, through Darwin’s eyes. The Fathers, Croly said, made the mistake of believing in permanency. They “believed they could guarantee the righteous expression of the popular will by a permanent definition of the fundamental principles of right, by incorporating these specific principles in the fundamental law and by imposing obedience to these principles on the organs of government whereby the popular will was expressed.” Twentieth-century America, Croly exulted, differed from the Fathers regarding fundamentals. America had “abandoned the innocent yet pedantic rationalism of the eighteenth century” and developed “a different conception of the nature of political sovereignty.” The people remain sovereign, but the people are, at last, to be properly educated and led in ways commensurate with the new century’s enlightenment: “The value of the social structure is commensurate with the value of the accompanying educational discipline and enlightenment. A better society may be built up, but only in so far as better men and women are called forth by the work. Human beings are at once the designers of the house, its artisans, its materials, and its fruits.”26

  The Constitution’s separation of powers is, Croly said, “desirable,” but then he retracted that concession. He said progressivism’s constitutional project is to “graft on the Constitution some regular method of giving back to the government sufficient integrity of organization and action.” This “must be derived not from constitutionalism, but from the ability of the people to achieve some underlying unity of purpose.”27 Manufactured unity could be produced by war or various moral equivalents of war. On March 4, 1933, the nation would hear Croly-like language from its new president, who would say that to have the “power to wage war against the emergency” of the Depression, “we must move as a trained and loyal army” wielding “broad executive power” that should be “as great as the power that would be given to me if we were in fact invaded by a foreign foe.”28

  Croly saw nothing incongruous or paradoxical about urging that national power be brought to bear on the project of promoting “the increase of American individuality.”29 He was untroubled by the possibility that government programs for the advancement of individuality would result in the promotion of what government considers a wholesome sameness—individuality purged of what government, reflecting majority opinion, regards as retrograde elements. However, the development of the modern sciences, which mesmerized progressives, posed two threats to mankind: the danger of hubris and the danger of demoralization—literally, de-moralization. There was the temptation to believe that, armed with the scientific method, anything in nature or society could be subdued and manipulated by human intentions. Recall Lippmann’s aspiration to “put intention where custom has reigned.”30 One implication of the new social science was that human beings, far from being masters, are themselves thoroughly mastered because they are imbedded in natural causation. These ideas were embraced by the leading jurist of the era.

  Oliver Wendell Holmes, wounded many times from Ball’s Bluff to Antietam during the Civil War, was fifty-four in 1895 when, in a Memorial Day oration, he wished for more war: “In this snug, over-safe corner of the world we need it, that we may realize that our comfortable routine is no eternal necessity of things, but merely a little space of calm in the midst of the tempestuous untamed streaming of the world, and in order that we may be ready for danger.” We need war, Holmes said, “in this time of individualist negations” when people were “denying that anything is worthy of reverence.” His longing for reverence was hardly congruent with his jurisprudence, the premise of which was that society, like the universe, is merely a field of forces, the strongest of which deserves to prevail. His Memorial Day prayer “not for comfort, but for combat” did, however, express his view that it is wrong and, worse, pointless for law to try to tame, stymie or deflect social forces, which should be free to work themselves out.31

  Holmes enjoyed using rhetoric that would épater les bourgeois, as when he said that “a law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell.”32 But a significant portion of the American bourgeoisie—the progressive portion, whose approbation gratified Holmes—was not at all shocked by his truculent majoritarianism. Unleashing majorities was a progressive objective. “With your belief in some apriorities like equality,” Holmes wrote in a letter to the English political theorist Harold Laski, “you may have difficulties. I who believe in force (mitigated by politeness) have no trouble—and if I were sincere and were asked certain whys by a woman should reply, ‘Because Ma’am I am the bull.’”33 Holmes delighted in saying “that we have not the kind of cosmic importance that the parsons and philosophers teach. I doubt if a shudder would go through the spheres if the whole ant heap were kerosened.”34 Sometimes Holmes likened human beings not to insects but to canines. He said that behind many legal rights there is not a pre-existing right, but only a “fighting will” to maintain the rights: “A dog will fight for his bone.”35 Sometimes the determinism Holmes invoked was not biological but social: “[M]an is like all other growing things and when he has grown up in a certain crevice for say twenty years you can’t straighten him out without attacking his life.”36 This jurist, who likened human beings to ants, dogs, and plants, saw society mer
ely as a field of forces and thought of law as, inevitably and properly, an accommodation of those forces.

  In 1910, Mark Twain, who in that last year of his life lapsed into a nihilism similar to Holmes’, wrote: “I see no great difference between a man and a watch, except that the man is conscious and the watch isn’t, and the man tries to plan things and the watch doesn’t. The watch doesn’t wind itself and doesn’t regulate itself—these things are done exteriorly. Outside influences, outside circumstances, wind the man and regulate him.”37 In a similar spirit, Holmes in 1897 had argued for capital punishment because human agency is a fiction when an individual’s “structural reaction” explains his actions: “If the typical criminal is a degenerate, bound to swindle or to murder by as deep-seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction.”38

  In 1924, Clarence Darrow, a famed defense attorney and leading progressive, argued that capital punishment would be inappropriate for his clients Nathan Leopold and Richard Loeb. These University of Chicago undergraduates were nineteen and eighteen respectively when they read Nietzsche and decided to show disdain for conventional morality by committing what nowadays is called a “transgressive” act. They committed a random murder, driving a chisel into the skull of a fourteen-year-old boy and dumping his body in a drainage ditch. Darrow argued to the judge that a death sentence would be unjust because “something” had made his clients victims: “Why did they kill Bobby Franks? Not for money, not for spite, not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of a boy or the man something slipped, and these unfortunate lads sit here, hated, despised, outcasts with the community shouting.” What Holmes explained as a “structural reaction” for which the death penalty was appropriate, Darrow explained as some sort of mental slippage that occurred because of the way his clients were “made” by “infinite processes” that made a death sentence inappropriate. The judge, who opposed capital punishment, sentenced them to life in prison.39