Tim Egan in the Times: “The Progressives of the early 20th had an amazing run — direct elections of senators, regulation of monopolistic trusts, modernization of public schools, cleaning up the food supply — with only one major blooper: Prohibition.” I’m not a big fan of either the Seventeenth Amendment or of antitrust law, but put those aside; what about, among other things, residential segregation laws in the South and border states (fortunately invalidated by the Supreme Court, much to the dismay of Progressive commentators), eugenics legislation, hostility to the Equal Rights Amendment/support for “protective” law for women only, support for American imperialism (at least via one of the Progressives’ great champions, Theodore Roosevelt–and Woodrow Wilson didn’t exactly distinguish himself with American intervention in World War I, which may be the single greatest “blooper” in American history), and support for state legislation monopolizing certain fields on behalf of incumbent businesses (see, e.g., New State Ice v. Liebmann)? Do these count as only minor bloopers, or has Progressive support for these policies slipped down the old memory hole?
As I’ve consistently noted, today’s “Progressives” are not the same as yesteryear’s “Progressives.” They do share a general affinity for government regulation of the economy, but modern Progressives believe in civil rights and civil liberties (albeit not exactly in the same ways that I believe in them), while those of a hundred years ago were generally hostile or indifferent to such liberties. But if modern liberals like Egan are going to cite the old Progressives as their forebears, they should at least be cognizant of the full range of policies that were considered “Progressive” one hundred years ago.
UPDATE: And by the way, while modern liberals often don’t recognize their distinctions from Progressives of one hundred years ago, conservatives, especially judicial conservatives, often don’t recognize the extent to which they have adopted Progressive ideology. Consider, via JoshBlackman.com, a recent speech by Judge J. Harvie Wilkinson: “To see liberty purely in terms of individual rights is too cramped a view. Democratic liberty is no less real for reflecting a collective view. I am dismayed when I see conservatives leap to the vaguest of phrases in our Constitution such as ‘privileges or immunities,’ the Contracts Clause, the Ninth Amendment, and the Due Process Clause to establish their own set of textually nebulous bases on which to overturn enacted law…. This emerging jurisprudence is nothing but a thinly veiled assault upon labor, social welfare, and environmental legislation….” It’s rather easy to imagine such words coming from the lips of Progressive jurisprudential luminaries Felix Frankfurter, Learned Hand, and Edward Corwin.
Wilkinson worries that “we shall be left with two dominant, though different, libertarian visions of the American Constitution, [liberal constitutionalism and libertarian constituitonalism].” But as Randy Barnett likes to say, what we have had for the last seventy years is two different Progressive visions of the Constitution–the old majoritarian vision of the Old Progressives since adopted by conservatives like Bork and perhaps Wilkinson, and the modern Progressive vision, that selectively enforces only those constitutional limitations that appeal to modern liberal sensibilities.