The progressive critique of the principles underlying the original American understanding of rights paved the way for an attack on those rights in practice. Progressives called for significant changes both to political institutions and to national policy that were animated by their new conception of rights. Having argued that rights such as property should no longer be understood as grounded in nature, progressives were liberated to seek changes to institutional arrangements that had originally been predicated on the old liberalism’s privileging of natural rights. While it is impossible here to treat the numerous and varied ways in which the progressive movement affected the development of American political institutions, it is especially instructive to look at how progressives conceived of the judiciary. The progressive treatment of the judiciary is particularly relevant because it demonstrates how the meaning and relevance of property rights were transformed in the Progressive Era. As discussed above, both Goodnow and Wilson saw it as a critical (but not felicitous) difference between America and England that fundamental rights in America were regarded as natural as opposed to conventional, and that they were thus distinct from and above the ordinary positive law. Such a construction, they knew, implied a role for the judiciary as the guardian of fundamental rights35—a role which could put it at odds with the organic development of legislation if such legislation was deemed a threat to the original meaning of rights.
For Theodore Roosevelt, this is exactly what had happened, and he became the lead progressive antagonist to a judiciary that he believed was upholding the old theory of natural property rights at the expense of progressive majorities. This even led him to advocate, in his unsuccessful third-party campaign to recapture the presidency in 1912, what can best be described as popular referenda on judicial decisions—or, to put it in the language found in the Progressive Party Platform of 1912: “That when an Act, passed under the police power of the State, is held unconstitutional under the State Constitution, by the courts, the people, after an ample interval for deliberation, shall have an opportunity to vote on the question whether they desire the Act to become law, notwithstanding such decision.”36 When judges defied the will of the people in the name of property rights, Roosevelt argued, this represented a corruption of democracy. “Democracy,” he contended, “has a right to approach the sanctuary of the courts when a special interest has corruptly found sanctuary there.”37 Roosevelt almost always used the epithet “special interest” in cases where property rights had been employed as protection against majority will. “Special interest” seems to have meant, for Roosevelt, any non-majority entity asserting its natural property rights. It was the “special interests”—and their property rights in particular—that stood in the way of progressive social legislation. The courts, Roosevelt complained, “have construed the ‘due process’ clause38 of the State Constitutions as if it prohibited the whole people of a State from adopting methods of regulating the use of property so that human life, particularly the lives of the working men, shall be safer, freer, and happier.”39 And whereas, under the old liberalism, property rights had been grounded in human nature and were understood as an integral part of the range of rights inherent in human personhood, Roosevelt conceived instead of “human rights” and “property rights” in opposition to one another. Judges who struck down laws due to a judgment that they contravened property rights were simply substituting a “political philosophy” for “the will of the majority.”40
Pestritto, Ronald J.. America Transformed (pp. 66-69). Encounter Books. Kindle Edition.
Undoing the structure of the Constitution to facilitate progressive policies meant dismissing the principles that drove its design. Understanding the roots of the progressive movement requires understanding the roots of the Constitution. The modern liberal is heir to the progressive tradition and philosophy. The modern Conservative inherits the classical liberal tradition and returns to the original principles of the Constitution. The difference between progressives and conservatives today is far greater than their positions on issues; that is merely a distraction. There is a fundamental difference between their position on the purpose of government, their understandings of human nature and knowledge, and their philosophy that ensues from that understanding.
Without understanding the assumptions underlying their positions the left and right will always expect more from their government than it will ever be capable of delivering, and they will forever be disappointed, yet incapable of compromise.