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Redefining Liberty

I attended a Hillsdale College Free Market Forum in Atlanta last week. I was able to meet Don Boudreaux from Café Hayek, one of my daily go to blogs, and Ronald Pestritto, a history professor at Hillsdale.

Ron authored three books on my bookshelf: American Progressivism: a Reader, Woodrow Wilson and the Roots of Modern Liberalism, and Woodrow Wilson: The Essential Political Writings .  They are an excellent window into the origins of the Progressive movement.

In an address on the Principles of the Entitlement State, he spoke of the redefinition of liberty by Franklin Roosevelt in his Commonwealth Club Address in 1932.  FDR spoke of the transition of the United States from its founding due to the settlement of the continent and the industrial revolution.  This is consistent with Woodrow Wilson who found principles embedded in the Constitution to be contingent on the times and unsuitable for modern political life.

The framers saw liberty as a natural right which preceded the government, and that the citizens instituted government to protect those rights.  With liberty perceived to be  threatened by a new economic order FDR sought power for the government to protect individuals from threats to their liberty from sources other than the government such as the powerful business trusts.  Instead of a protector of liberty the government could grant liberties due to its power.  The more power the government had the more liberties it could bestow. This innocent sounding transition from the protector to the grantor of rights was used to justify the growth in power of the government that characterized the Progressive movement.

George Will characterized the Progressive pivot as the point where liberty was superseded by majoritarian democracy in his essay in National Affairs, The Limits of Majority Rule. Pestritto contends that perhaps it is more accurate to say that liberty was redefined by FDR to require the power of the state to do more than protect pre-existing natural rights.

The outcome of a century of growing Federal Power in the name of Progressivism and the evolution of the entitlement and regulatory state allows us to see the dangers of uncontrolled government power and the wisdom of the original principles of limited government power.  Would the original Progressives have approved of the expansion of government to its current size and power?

William Voegeli in Never Enough mirrored Pestritto’s examination of the redefinition of language by FDR:

“According to Sidney Milkis, “FDR’s deft reinterpretation of the American constitutional tradition” gave “legitimacy to progressive principles by embedding them in the language of constitutionalism and interpreting them as an expansion rather than a subversion of the natural rights tradition.” Significantly, FDR conveyed this orientation by enthusiastically embracing “liberalism” as the designation for the New Deal’s philosophy, sending the term “progressivism,” with its clearly implied critique of the American founding, into a long exile. To do so he wrested “liberalism” away from the defenders of limited government, who acceded unhappily to calling themselves “conservatives.”


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When Democracy Trumps Liberty


George Will wrote an excellent piece in National Affairs, The Limits of Majority Rule.  My very brief summary and a few comments:

  1. The Progressive pivot of about 1890- but reached in full bore under FDR  is when democracy superseded liberty as the main purpose of the constitution .
  2. The Supreme Court of the modern Progressive era  in its activist mode sought more to affirm the democratic functions of the Congress than the liberty protection functions of the earlier courts.
  3. This supremacy of Democracy was objected to by Lincoln in its use to justify the Kansas Nebraska Act permitting slavery in districts where it was earlier forbidden in the Missouri Compromise. Slavery was extended under the guise of expanding Democracy because the states could now VOTE on whether to permit slavery. How is that for historical irony? Democracy is two wolves and sheep deciding what is for dinner. Liberty is a well-armed sheep.
  4. Democracy is an essential part of our Constitution, but necessarily restrained in its majoritarianism by  the natural and individual rights of the Declaration and the Constitution.
  5. The Declaration is a necessary component of the Constitution.
  6. The expansion of the administrative state to the regulatory and welfare state was supposed to be an expansion of majoritariansim but has ironically been used to expand special interests at the expense of the majority.  The majority  of citizens want Uber but government seeks to protect the cab special  interests- often under the guise of protecting the majority.
  7. There is a tension in a defined continuum between Democracy and Liberty. Perhaps that is the more salient continuum to describe our current debates, rather than left /right, conservative/liberal, socialist/capitalist.

The piece is a bit longer than most that I post, but it is an essay in a major policy publication, not an article in a magazine.  I would not omit a paragraph in it. It is worth a full read.


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Will Liberty Control Factions ?


from Roger Kimball at The Wall Street Journal. Since Men Aren’t Angels:

Madison, Hamilton and other supporters of the Constitution worried about the potential incursions of federal power just as much as did the anti-Federalists, who opposed adopting the Constitution because it seemed to bring back many of the infringements on liberty that they had all risen up against in 1776. But they concluded that the creation of a strong state was the best guarantor of liberty in a republic. Hence the irony, as the historian Bernard Bailyn notes, that “now the goal of the initiators of change was the creation, not the destruction, of national power.”

Madison’s central insight was that power had to be dispersed and decentralized if it was to serve liberty and control faction. In Federalist 51, a companion to Federalist 10, he elaborated this idea of balancing interest against interest to remedy “the defect of better motives.” “Clashing interests” would not be stymied but balanced against one another. If men were angels, Madison noted, government would be unnecessary. But in framing a government “which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

There are two ways to extinguish factions. The first is to extinguish the liberty they require to operate. The second is to impose a uniformity of interests on citizens. Some collectivists have actually experimented with these expedients, which is why the pages of socialist enterprise are so full of bloodshed and misery.

Eliminating the causes of faction, as Madison put it, offers a cure that is far worse than the disease. If protecting both liberty and minority rights is your goal, then the task of government is to control the effects of faction. How can this be done?

Talented statesmen are sometimes successful in balancing the contending interests of society. But—understatement alert—“Enlightened statesmen will not always be at the helm.”


This essence of controlling special interests is nothing less than genius, yet I remain concerned that too many political operatives are neither inclined are able to understand this concept. This same structure that sets faction against faction also inhibits the function of government. This is the core of the intellectual political debate for the last century.

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Democracy and Liberty

From National Affairs George Will writes The Limits of Majority Rule.  It is an excellent summary of the history of the court as it has moved from judicial review to activism.  The success of Progressivism has hinged on the court shifting from upholding constitutional restraints on majority rule to an activist approach to uphold the majoritarianism- what many would call democracy- of Congress.

an excerpt:

The court did not say, but it might as well have said, that majority rule requires that courts only reluctantly and rarely engage in the judicial supervision of democracy, because majority rule is the essence of the American project. There are, however, two things wrong with this formulation.

First, it is utterly unrealistic and simpleminded to think that there is majority support for, or majority interest in, or even majority awareness of, even a tiny fraction of what governments do in “dishing out” advantages to economic factions. Does anyone really think that, when the Nashville city government dispenses favors for the taxi and limo cartel, it is acting on the will of a majority of the city’s residents? Can anyone actually believe that a majority of Louisianans give a tinker’s dam about who sells caskets or arranges flowers?

The second fallacy behind a passive judiciary deferring to majoritarian institutions is more fundamental. It is rooted in the fact that we know, because he said so, clearly and often, that Lincoln took his political bearings from the Declaration of Independence. We know that Lincoln believed, because the Declaration says so, that governments are instituted to secure our natural rights. These rights therefore pre-exist government. And they include the unenumerated ones affirmed in the Constitution’s Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”



The Progressive Era can be summarized as the point in our history where democracy became more important than liberty.  The Founders and Framers clearly valued Liberty much more.

Congress is the instrument of Democracy, but the Court is the instrument of the Constitution which was designed to be a limit to majoritarianism. Democracy is important but without the limits of the Constitution and the proper supervision of the court Democracy breed demagogues and dangerous populism. The Framers understood that democracy and demagogue have the same root.

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The Great Irony of Majoritarianism


From National Affairs George Will writes The Limits of Majority Rule.  I strongly recommend you read the entire essay.

an excerpt:

So, we must ask: How aberrant, or how frequent, are abusive majorities? A related but different question is: When legislatures, which are majoritarian bodies, act, how often are they actually acting on behalf of majorities? My belief, based on almost half a century observing Washington, the beating heart of American governance, is that as government becomes bigger and more hyperactive, as the regulatory, administrative state becomes more promiscuously intrusive in the dynamics of society and the lives of individuals, only a steadily shrinking portion of what the government does is even remotely responsive to the will of a majority.

Rather, the more that government decides that there are no legal or practical limits to its proper scope and actual competence, the more time and energy it devotes to serving the interests of minority — often very small minority — factions. So, paradoxically, as government becomes bigger, its actions become smaller; as it becomes more grandiose in its pretensions, its preoccupations become more minute.


This is a great irony that Will uncovers. The more that our Progressive government sought to weigh democracy and majoritarianism over liberty the more that it subverted majoritarian will by succumbing to special interests. Courts ruled that as long as laws had a rational basis dictated by a majoritarian election then judicial activists justified using the courts to uphold legislative action rather than enforce constitutional limits. Part of the explanation is  the growth of the administrative state which gave way to the regulatory and welfare state. The micromanagement beginning under FDR led to intense lobbying and cronyism which subverted the interests of the majority. Progressivism which sought to counter the special interests and influence of the Gilded Age merely replaced the corruption with the official channels of  registered lobbying.