American Process and Its “Occasional Services to Liberalism”

imageLiberals endure much teasing for their inability to articulate just what liberalism means.  Even their best and brightest flounder at the task.  “[T]here is something deep within liberalism,” Michael Tomasky attempts, “that prevents it from degenerating into fascism, and that is its explicit recognition that the state must serve both common purposes and individual liberty.”  Sound nice?  Have some more:  “[W]here that collective urge crosses the line into coercion, well, that is where liberals—I mean liberals who know something about liberalism—get off the train, and do their noncoercive best to derail it.”  Charming, nonthreatening, superficially profound—everything you’re looking for in an ideology to settle down with.

But that’s liberalism’s Dr. Jekyll.  Let me introduce you to Mr. Hyde, its activist alter ego known as Progressivism.

Following World War I, many Americans distrusted and generally scorned German-Americans.  As a result, many local ordinances forbade the German language within town limits, and some state legislatures passed laws forbidding it throughout the state.  Other laws extended to private and even religious education.  Nebraska passed such a law.  Oregon, especially concerned about the influence of immigrants on the general culture, passed a law requiring attendance at public school, with designs on eliminating the parochial schools that many immigrants attended.

The Supreme Court struck down both laws in Meyer v. Nebraska and Pierce v. Society of Sisters in 1923 and 1925, respectively.  Although he personally opposed the Oregon and Nebraska laws, Felix Frankfurter—a leading Progressivist and future Supreme Court Justice—expressed grave concerns about the effect these liberty-protecting decisions would have on Progressive causes, which diminished liberty in the service of social improvement.  Writing in The New Republic in 1927, Frankfurter warned:

In rejoicing over the Nebraska and Oregon cases, we must not forget that a heavy price has to be paid for these occasional services to liberalism. The New York bakeshop case [Lochner], the validation of anti-trade union laws . . . are not wiped out by the Oregon decision. . . . For ourselves, we regard the cost of this power of the Supreme Court on the whole as greater than its gains. [Emphasis added.]

In other words:  Liberty can fend for itself.  Progressives want control, and adherence to Process—such as courts paying “occasional services to liberalism”—only gets in the way.

The project of liberty, of American values, is based on the idea that we play by a set of rules, that we follow a “Process.”  Progressivism, in contrast, is based on the idea that rules generally ought to give way to the righteousness of particular “Policies.”

Process has to do with how institutions work.  Some of these Processes are codified in the Constitution, but by no means all.  Principles such as equality, for example, are implicit in the very nature of constitutional democracy. Some examples of Processes characteristic of American government include:  self-government, representative democracy, the rule of law, due process,  separation of powers, enumerated powers and limited government, checks and balances, federalism, accountability and non-delegation, bicameralism and presentment, the judicial protection of individual rights, equal protection of the law, and institutional ethics such as preventing conflicts of interest.

Policy, on the other hand, refers to the political goods institutions can or do provide.  Some examples include:  public safety, national security, immigration control, health care, education, a living wage, a social safety net, infrastructure, including clean water, energy, and roads, rail, and transit, energy, a safe working environment, safe food and consumer goods, public parks, a healthy environment, environmental justice, or eliminating racial, sexual, and religious discrimination in private life.

Any form of government can provide these various political goods.  However, only a certain kind of government conducts itself according to a particular set of Processes. If two countries, A and B, have basically the same Policies, but A is a liberal democracy and B is a dictatorship, no one would say that A and B are similar to one another. Governments are defined primarily by how they operate, not the stuff they provide.  It is Process, then, not contingent Policies, that define a nation’s core values.  The ideas represented by the People’s Republic of China, for example, wouldn’t change if China stopped polluting its air and water, but they would if they started holding democratic elections.

Because Processes tend to be absolute and are more closely related to a nation’s identity, subverting Process in the service of a contingent Policies demands strong justifications. Otherwise, we would replace an ideal that is wrapped up in our national essence and identity with something that is not, or is only contingently so.

Predictably, Conor Williamson demurs to my argument by pointing to Lincoln’s efforts to end slavery:  When Lincoln compromised certain Processes in this pursuit, was he acting as a “Progressive” by subverting Process to reach a Policy objective?

There are two parts to the answer.  First, there is a strong argument to be made that the campaign against slavery actually was one over Process, not Policy—that it was over fixed and fundamental notions of fairness and moral equality of human beings.  In fact, the Framers used great care to avoid specifically legitimizing slavery in the Constitution.  Moreover, slavery was not authorized by law when it was first introduced in the country.  Instead, it was merely tolerated without any law.  According to a decision of the King’s bench in 1772 and the colonial charters, there was no right of property in man.  Even when slaves became so numerous as to require regulations, legislatures simply assumed the existence of slaves and still passed no laws legitimizing the practice.  There was no law and no language in the Constitution defining which persons may be made slaves, and certainly no authority prescribing or defending enslavement on the basis of race.  Thus, as Lysander Spooner concluded, “there was no constitutional slavery in the colonies up to the time of the revolution.”

Even the three oblique allusions to the practice in the Constitution—Article 1, section 2; Article 1, section 9; and Article 4, section 2—do not acknowledge or sanction the institution as it existed.  After a careful survey of these clauses, Spooner found:

There is in it nothing about color; nothing from which a liability to slavery can be predicated of one person more than another; or from which such a liability can be predicated of any person whatever. The clauses, that have been claimed for slavery, are all, in themselves, honest in their language, honest in their legal meaning; and they can be made otherwise only by such gratuitous assumptions against natural right, and such straining of words in favor of the wrong, as, if applied to other clauses, would utterly destroy every principle of liberty and justice, and allow the whole instrument to be perverted to every conceivable purpose of tyranny and crime.

In other words, the Framers took every precaution to ensure that, though they could not eradicate that lawless Policy of slavery, it would at least find no support in the Processes established in the Constitution.   As Spooner correctly saw the issue, support for a Policy that infringed fundamental Processes must be expressed with, what the Supreme Court called in U.S. v. Fisher, an “irresistible clearness,” and with what Lincoln described as“evidence so conclusive, and argument so clear, that even [the Framers’] great authority, fairly considered and weighed, cannot stand.”  But one can point to nothing in the Constitution in support of slavery except by improperly deviating from the four corners of the document.  For these reasons, Lincoln accused the South of “rejecting and denouncing the old policy of the fathers,” of prohibiting the expansion of the peculiar institution, in favor of new policies—including the “‘gur-reat pur-rinciple’ … fantastically called ‘Popular Sovereignty’”—none of which “can show a precedent or an advocate in the century within which our Government originated.”

In his February 1860 Cooper Union Address, Lincoln addressed the South’s accusation that Republicans were proposing to agitate public sentiment to deprive slave owners of their Constitutional rights.  Lincoln responded that no less than the destruction of the Union was at stake over this issue of an alleged Constitutional right to slavery that was neither mentioned in the text nor supported by natural law:

And how much would it avail you, if you could, by the use of John Brown, Helper’s Book, and the like, break up the Republican organization? Human action can be modified to some extent, but human nature cannot be changed. There is a judgment and a feeling against slavery in this nation, which cast at least a million and a half of votes. You cannot destroy that judgment and feeling – that sentiment – by breaking up the political organization which rallies around it. You can scarcely scatter and disperse an army which has been formed into order in the face of your heaviest fire; but if you could, how much would you gain by forcing the sentiment which created it out of the peaceful channel of the ballot-box, into some other channel? What would that other channel probably be? Would the number of John Browns be lessened or enlarged by the operation?

But you will break up the Union rather than submit to a denial of your Constitutional rights.

That has a somewhat reckless sound; but it would be palliated, if not fully justified, were we proposing, by the mere force of numbers, to deprive you of some right, plainly written down in the Constitution. But we are proposing no such thing.

When you make these declarations, you have a specific and well-understood allusion to an assumed Constitutional right of yours, to take slaves into the federal territories, and to hold them there as property. But no such right is specifically written in the Constitution. That instrument is literally silent about any such right. We, on the contrary, deny that such a right has any existence in the Constitution, even by implication.

Your purpose, then, plainly stated, is that you will destroy the Government, unless you be allowed to construe and enforce the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events.

And then, of course, there was Dred Scott v. Sanford, a bizarre and labyrinthine opinion, one of the longest in Supreme Court history, and filled with so many denials of plain facts—and assertions of facts that were not so—that it utterly failed to command the respect of reasonable minds: one Justice resigned from the Court on principle (the only such instance in the Court’s history), and the New York‘s highest court refused to follow it.  Only the most hardened positivist could insist that Scott was entitled to respect as the law of the land.  Even then, it was overruled by the Thirteenth and Fourteenth Amendments.

As to the second part of the answer, recall that I acknowledged in my response to Conor that conservatives are in many ways just as interested in legislating their values as Progressives are—it’s just that conservatives will not presume Process may be ignored without the giving of strong justifications.  So let’s now assume you don’t buy Lincoln’s and Spooner’s arguments that slavery was never constitutional to begin with.  Let’s assume instead that slavery was codified in the Constitution and entitled to every bit as much protection against “progress” as the electoral college and the presidential age limit.  Even still, are there any who are so lacking in imagination that they cannot draw a principled distinction between the quests to end the slavery of blacks, on the one hand, and to establish garden-variety economic regulation and social welfare projects, on the other?  If there is any Policy as important as ending slavery, let Progressives say so before waiving the bloody shirt, and enforce his position by all truthful evidence and fair argument which he can.

Lincoln reconstituted America’s rules of governance by looking backwards—four score and seven years backwards—to the Declaration, whose moral logic America had, to that point, failed to adopt when it came to slavery.  Lincoln revealed the so-called “conservative” institution of slavery to be anything but, finding support nowhere in the written or natural law, but only through force.  He championed the democratic Process and its inclinations against slavery, and won a war he did not start to preserve those Processes.  In so doing, Lincoln became this nation’s greatest Republican and its greatest Conservative.

As Conor said, it’s not possible to offer a full historical account of what Progressivism is. Moreover, Progressivism is not monolithic, and does not always prefer Policy over Process, even if, in general,it regards “these occasional services to liberalism” as a cost “greater than its gains.”  Progressives harangued G.W. Plunkitt that Tammany Hall was anti-democratic, for example. Yet Conor affirmed that Frankfurter’s sentiment was alive and well when he said “The ends of democracy are the key” for Progressives.  And despite insisting that I’m wrong, he didn’t recant his confession but instead doubled-down on it in his most recent post, saying: “The American tradition has always been about its ends—not its specific processes.”

Mr. Hyde still lives.

[Cross-posted at the main page]

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at