Force Foreigners to Pay Taxes: Protective Tariffs had already proved counterproductive, but not according to the Progressive platform. “We believe in a protective tariff which shall equalize conditions of competition between the United States and foreign countries, both for the farmer and the manufacturer, and which shall maintain for labor an adequate standard of living.”443
Can’t Teach Constitutional Law: By the 1920s, American law schools had abandoned teaching law based on principles in the Constitution. Students were immersed in a study of “casebook law”—that is, the decisions made by judges regardless of application or reference to the Constitution. There was no test for constitutional correctness because people were led to believe that what the Court said was law, so why argue? (See brief history of that abandonment beginning in Chapter 65, Revolutionary: Law Schools).
Rule Other Countries: Charles Merriam called on Western culture to advance its expertise into the core of other cultures and nations: “The Teutonic [Germanic] races must civilize the politically uncivilized. They must have a colonial policy. Barbaric races, if incapable, may be swept away. ... On the same principle, interference with the affairs of states not wholly barbaric, but nevertheless incapable of effecting political organization for themselves, is fully justified.”444
Tyranny Under the Color of War Powers: Many revolutionaries before and after the progressives believed the ideal time to enact change or to violate rights was in the middle of a crisis. World War I came along just in time. Measures to secure the nation included the Espionage Act of 1917—people were threatened with 10-20 years in jail if they “interfered with the draft or encouraged disloyalty [to America].” The Sedition Act of 1918 made it a crime to obstruct the sale of U.S. war bonds, discourage recruitment, use “disloyal or abusive language” about the government or the American flag or the Constitution, or even military uniforms. Some 1,500 were arrested for those very crimes. These Acts had good intentions but infringed on the people’s right to object or express opinions opposed to the way war was being conducted.
Nationalize Industries: Taking over free-market enterprises spooked Americans after World War I. By that time, the U.S. government already owned most of the radio facilities and controlled the railroads and a vast merchant fleet. Congress didn’t dare take over directly, but it did pass Acts and regulations that, over time, forced the marketplace to comply with government regulations—a slow grinding down of private investment.
Expand Ruling Agencies to Strengthen Government Control: The federal government issues laws, rules, and regulations to control commerce through more than 50 agencies, each with its own set of purposes, rules, requirements, and impact.
Replace Personal Responsibility With Laws and More Laws: Federal agencies are now tasked with enforcing more than 150,000 pages (and growing) of rules. Not all are bad—some fall within the proper role of government, but the rest are highly debatable or outright unconstitutional by any reasoned review of the powers usurped by such agencies. A 2013 study put a conservative cost of obedience to government regulations at a crushing $1.9 trillion every year.445 Regulation stifles innovation in ways not even imagined. For example, decades of communications restrictions by the Federal Communications Commission stalled the invention and development of cell phones, the Internet, and wireless services. When the rules were relaxed, the wireless technology exploded in a worldwide revolution that created jobs and trillions of dollars in new business.
The Socialist Party
In 1912, the progressive movement split from the Republican Party and formed the Progressive Party. Here was, at last, the foundation for candidates seeking office to further their progressive ideals. It didn’t last long, and dissolved in 1916, but not out of defeat. Rising to the forefront was a new home for progressivism, the Socialist Party, which had been gaining strength since 1901.
The Socialist Party was popular. Membership grew rapidly in its first couple of decades. Most of its support came from progressive and trade union members, and they succeeded in putting candidates in office everywhere. By 1912, they had nine seats in Congress, a senator, and more than 200 elected officials all across the country as mayors, city councilmen, and State legislators.
Debs and Darrow
Two influential progressives worth noting are Eugene V. Debs (1855-1926) and Clarence Darrow (1857-1938).
Debs helped form America’s first industrial union, the American Railway Union, and led the famous Pullman Car Company strike of 3,000 workers in 1894. He was an articulate anti-war advocate, and ran for president five times beginning in 1900. In 1912 he won 900,000 votes.
Debs congealed the progressive movement’s scattered and disjointed protagonists into a more cohesive force united against unalienable rights. Socialists, communists, union members, and anarchists rallied around him to pursue Ruler’s Law in America. Debs died of heart failure in 1926. He was 70.
Clarence Darrow was an American lawyer and leading member of ACLU. He was described as a sophisticated country lawyer who became famous for his wit, oratory, and successful defense of famous cases such as his defense of John Scopes, an evolution-teaching biology teacher, in the Scopes Monkey trial.
Darrow’s political and religious views perpetuated the progressive ideals. He supported the idea that judges should break from constitutional law and tailor-make laws to fit the circumstances.
“Laws should be like clothes,” he said. “They should be made to fit the people they serve.”446
He rejected religion: “The origin of the absurd idea of immortal life is easy to discover; it is kept alive by hope and fear, by childish faith, and by cowardice.”447
Darrow was an advocate of unionizing the work force: “With all their faults, trade unions have done more for humanity than any other organization of men that ever existed. They have done more for decency, for honesty, for education, for the betterment of the race, for the developing of character in man, than any other association of men.”448
Darrow blamed abuses of individual rights on the Constitution. “The Constitution is a delusion and a snare if the weakest and humblest man in the land cannot be defended in his right to speak and his right to think as much as the strongest in the land.”449
What Darrow failed to recognize in his indictment of the Constitution was the fault of corruption and the failure to sustain the original Constitution that would have prevented the country’s difficulties. More laws couldn’t fix those problems and never will. The real culprit in Darrow’s complaints was the encroaching tyranny of Ruler’s Law, the seven pillars of socialism that had taken root and were eroding the liberty, orderly cooperation, and long-lasting free-market solutions that were once guaranteed by the Constitution. The perpetuation of the bad ideas was rooted in the unchecked powers of judges and attorneys, those without constitutional training from their law school days. And that raises the question, What kind of constitutional insights and perspectives were being taught in the law schools back then?
* * *
421 Champion vs. Ames, 188 U.S. 321, 1903.
422 Calvin Coolidge, State of the Union Address, December 8, 1925.
423 New York Times, Uncle Sam is the Worst Drug Fiend in the World, March 12, 1911.
424 John Dewey, The History of Liberalism, excerpted from Liberalism and Social Action, 1935.
425 Ibid.
426 Charles Merriam, A History of American Political Theories, 1903, Chapter VIII.
427 Ibid., p. 333.
428 Theodore Woolsey, Political Science, Vol. I, pp. 23-25.
429 See www.americanhumanist.org.
430 G. W. F. Hegel, Philosophy of History.
431 G. W. F. Hegel, Philosophy of Law.
432 Merriam, ibid., Vol. VIII.
433 Friedrich Nietzsche, The Gay Science, Section 125.
434 Political Science and Comparative Constitutional
Law, I, p. 52, 1891, cited in A History of American Political Theories by Charles Edward Merriam, 1915.
435 Marx, Engels, The Communist Manifesto, chapter 2.
436 New York Times, Hoover Declares ‘Victory Bread’ and Cut Rations, January 27, 1917.
437 David M. Kennedy, Over Here: The First World War and American Society, 2004, pp. 124-125.
438 Time Magazine, Josefowitz Gold, April, 1936.
439 Walter Hines Page, Arthur Wilson Page, The World’s Work, Vol. 28, 1914, pp. 377-378; United States Reports, Vol. 234, p. 342.
440 Effingham Wilson, Progressive Principles by Theodore Roosevelt, Selections from
Addresses, 1913 p. 139.
441 Ibid., p. 171.
442 Ibid., p. 317.
443 Ibid., p. 320.
444 Merriam, Ibid., p. 314.
445 Wayne Crews, Ten Thousand Commandments, 2014; W. Mark Crain, The Impact of Regulatory Costs on Small Firms, Small Business Administration Office of Advocacy, September 2005.
446 Attributed to Clarence Darrow.
447 Attributed to Clarence Darrow.
448 The Railroad Trainman (November 1909).
449 Address to the court in People vs. Lloyd (1920).
Chapter 65: Revolutionary: Law Schools
The progressives’ effort to control information made a giant leap when they successfully penetrated education.
A pillar of socialism is the control of information. The importance of this pillar was not lost on those pushing for change in the early 1900s.
The leading progressives viewed traditional ideas about freedom as archaic remnants holding back revolutionary ideas. Reformers blamed the clergymen for controlling higher education and stifling the natural intellectual evolution of college students. Such stagnation, they warned, was suicide in a rapidly changing industrialized world.
The law schools became an early venue for this reform. The first attempt at law school reform started on the tradition-laden campus of America’s oldest university. The key players were—
WHO: Charles W. Eliot, Harvard president 1869-1909
IMPACT: He saved Harvard from bankruptcy, and ignited growth in higher education in America.
STORY: Eliot graduated from Harvard in 1853, and stayed on for a decade to teach math and chemistry. Using family money and savings, Eliot decided to go exploring. He took a two-year hiatus to Europe so he could study other forms of education. He was fascinated by their styles of curriculum and how teachers conveyed information. When he returned to America, Eliot was ready to help American education catch up with the times.
In 1869, Eliot was appointed president of Harvard. He was passionate about education as a tool to expand opportunities of study. That’s when he introduced the “electives system,” a buffet of top-notch classes from which students could choose how to develop their intellectual lives according to their interests.
Eliot served for 40 years as Harvard president, and built the school from near closure to the world’s wealthiest private university. He was described as a fearless crusader for education reform and also pushed for many progressive goals. One of his most eloquent spokesmen for progressive views was Herbert Croly, class of 1889.
WHO: Herbert Croly (1869-1930)
IMPACT: Intellectual leader of the progressive movement; author of the progressive classic, The Promise of American Life (1909).
STORY: Croly made three attempts to graduate from Harvard, withdrawing each time for one reason or another. In 1910, after The Promise of American Life was published, Harvard finally awarded Croly an honorary degree.
Croly was enamored by Alexander Hamilton’s views of a strong central government. His 1909 book reflected that view as a way to transform America from an agrarian society to a powerhouse in the industrialized world. He also supported Thomas Jefferson’s views on individual freedom, but set them secondary as “tantamount to extreme individualism.”450
Croly’s solution to a new America included nationalizing large corporations, building a strong national government, and strengthening the labor unions—calling them “the most effective machinery which has yet been forged for the economic and social amelioration of the laboring class.”451
He also promoted heavy taxes, creating an aristocratic class of elites, and allowing unlimited government—even at the expense of individual rights so long as national ideals were supported.
After Croly’s death his unnoticed book took off and imparted socialism to presidents, jurists, and teachers—for decades.
WHO: Christopher Columbus Langdell (1826-1906)
IMPACT: Turned law schools from studying constitutional law to the “casebook method.”
STORY: During Eliot’s reign at Harvard there came along a teacher and scholar named Christopher Langdell. He advanced progressive goals deep into American culture and jurisprudence by changing the way law was studied in college.
Langdell attended Harvard’s law school from 1851-1854, long before Eliot came along. But the two joined up in 1870 when Langdell was made Dane professor of Law at Harvard Law School. Shortly after, he was made dean of the law faculty, a position he held until 1895.
Langdell introduced two major changes into how law was taught in America. The first is still in use today. It’s a system for teaching first-year students the intricacies of contracts, property, torts, criminal law, and civil procedure.
Langdell’s second innovation was the case or casebook method. He dropped the Constitution as the deciding factor in law, and had students study how they, and presiding judges in the cases, thought the outcome should be. Unfortunately, judges’ personal biases and agendas proved contradictory and fluctuated with every major case. Deserting the Constitution as a foundational starting place for law education ultimately proved to be a foolish abandonment.
WHO: Roscoe Pound (1870-1964)
IMPACT: Started the “legal realism” movement that institutionalized judicial activism.
STORY: Roscoe Pound started teaching law at Harvard in 1910, and became dean of the law school in 1916.
Pound was one of the early promoters of the casebook method, and took it a step further. He helped start the so-called “Realism” movement.
“Legal Realism” was the view that law should be used to achieve whatever social purposes seem to fit at the time. Said another way, “the law” is whatever the judges say it is.
Prior to that time most law schools were teaching “legal formalism.” This tradition held that the formal written law is unmovable—it is what it is, not what the judge says. And if the law failed for some reason, it wasn’t the judge’s job to rewrite it, but to apply it as best as he or she could and leave it to the legislature to make necessary clarifications.
Those supporting “formalism” said that judges should be constrained in their interpretations. Allowing judges to say what the law should be instead of making them pass judgment according to what the law does say violates the Constitution’s separation of powers.
Why? Because the legislative branch is supposed to make the law, and the judicial branch is supposed to apply it, not change it according to their own whims.
Pound’s approach to teaching law has sent hundreds of thousands of law students into America with the mistaken belief they are empowered to create law if the situation warrants it. It is a progressive’s dream come true.
Interpretations Versus Application
Supreme Court Justice Antonin Scalia is one of those former law school students who didn’t fall for “legal realism.” He deeply respected the Constitution and wanted it left alone, and made this clear many times as a justice on the Supreme Court—
“We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress,
each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, un-elected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today’s opinion approves that process in principle, though urging the lower courts to be more restrained. This Court seems incapable of admitting that some matters—any matters—are none of its business.”452
“I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.”453
“The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”454
“I don’t think it’s a living document, I think it’s dead. More precisely, I think it’s enduring. It doesn’t change.”455
“I am left to defend the ‘dead’ Constitution.”456
* * *
450 Herbert. Croly, The Promise of American Life, 1901, p. 194.
451 Ibid., p. 387.
452 Antonin Scalia, Sosa vs. Alvarez-Machain et al., 542 U.S. 692 (2004).
453 Antonin Scalia, forum at American University, 2005.
454 Antonin Scalia, Wabaunsee County vs. Umbehr, 518 U.S. 668 (1966).
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