Originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution.
The silver anniversary of the Great Society was last year, and perhaps the most remarkable feature of the retrospectives by the academic and media establishment was the hard feelings shown toward the man most responsible for it. As Randall B. Woods points out in his new book, liberals (with a few exceptions, like historian Robert Dallek) have never forgiven LBJ for Vietnam, and this obscures their view of the Great Society.
Woods, on the other hand, is rather sympathetic to him in Prisoners of Hope: Lyndon B. Johnson, The Great Society, and the Limits of Liberalism. Or least he does not dwell on the negative, especially Johnson’s crude personality traits. The book is based mostly upon material from the LBJ presidential library, and could be called an anti-anti-Johnson (especially an anti-Robert Caro) work, in keeping with Woods’s massive revisionist biography of LBJ from 2007, subtitled Architect of American Ambition.
Prisoners of Hope lets us reconsider the nature of the new American liberalism. It also reminds us just how brief was the liberal consensus that brought us the Great Society. President Johnson was elected in the greatest popular-vote landslide in modern American history, and liberals won even greater majorities in both houses of Congress. The Supreme Court, too, was at the high tide of Warren Court judicial activism. Most Great Society legislation won support from both parties. But the unanimity of 1964-1965 did not survive the riots in Detroit and Watts and the escalating war in Vietnam.
Woods stresses that the short-lived consensus that produced the Great Society preceded not only the Vietnam War but the “cultural revolution” of the 1960s and early 1970s, which focused on issues like feminism, affirmative action, environmentalism, and even homosexual rights. He properly notes that much of pre-cultural revolution liberalism was religiously-based, the Civil Rights movement especially so.
Woods calls the religious revival of the 1950s, characterized by popular figures like Billy Graham, Fulton Sheen and Norman Vincent Peale, and also academic figures like Reinhold and Richard Niebuhr, “widespread and “intense,” though he admits that much of it was “syrupy” and “sin-free.” It is rather hard to believe that Johnson and his advisers were Niebuhrian neo-orthodox realists. The Great Society looks more like the culmination of the utopian or post-millennial Social Gospel movement. Woods quotes LBJ telling the leaders of the Methodist Church that its 1940 Social Creed was “the perfect description of the American ideal.” The religious basis of the mid-20th century liberal consensus looks like the last years of the midlife of liberal Protestantism, just before its rapid collapse. It was succeeded by an eclectic mix of secularist, pantheist-environmentalist, emotivist, generally relativist post-Christian society.
One is tempted to say that Woods misses the forest for the trees, so deeply immersed is he in Johnson administration archival material. There are many points at which context and background are needed, and he relies on a narrow range of secondary sources for them. The book has a blow-by-blow narrative of the parliamentary maneuvering that got the Civil Rights Act passed but almost no analysis of the act itself. Elsewhere, he refers to a Newsweek interview with Ralph Ellison and the famous Coleman Report on education, but cites staff memos to LBJ about them rather than the original (and much more easily accessible) sources themselves.
On the other hand, a big contextual and conceptual point that Woods does recognize—or, perhaps, sees but does not quite recognize—is that modern liberalism, from the Progressive era to the Great Society and up to today, is fundamentally about a new view of the ends and purposes of government. The Founders and 19th century Americans assumed that government’s purpose was to secure pre-existing natural rights—such as life, liberty, property, or association. Everyone can exercise such rights simultaneously; nobody’s exercise of his own rights limits anyone else’s similar exercise. Your right to life or to work or to vote does not take anything away from anyone else. We can all pursue happiness at once.
Entitlements, on the other hand, require someone else to provide me with the substantive good that the rights-exerciser pursues. The right to work, for example, is fundamentally different from the right (entitlement) to a job; the right to marry does not entitle me to a spouse; the right to free speech does not entitle me to an audience. Modern liberalism is about government providing, not protecting, rights—newly defined as entitlements.
Woods as I say, appears to be aware of this, describing the Great Society as
flying in the face of the American Creed. All of its basic tenets—equality, liberty, individualism, constitutionalism, and democracy—were basically antigovernment and antiauthority in character, calling for the placing of limits on the institutions of government.
He even suggests that in the entitlement or welfare state, “excessive social engineering threatened, ironically, to extinguish the individual, bringing forth a reform regime that was dangerously totalitarian in nature.” It was this view of the Great Society that gave rise to modern, especially constitutional, conservatism. (This despite—or, in truth, it may have been because of—the fact that the Republican Party platform of 1968 did not call for the repeal of any significant Great Society legislation.)
Not that Woods seems to be overly concerned about this transformation. He mentions it from time to time, but the narrative quickly resumes. This revolution just kinda happened. In this, Prisoners of Hope is much like James T. Patterson’s Grand Expectations (1996), which frequently talks about the “rights revolution” and sometimes uses the word “entitlement,” without recognizing the full implications of these terms. And Patterson is considered something of a conservative among academic historians (which is something like being the tallest building in Topeka Kansas or a wit among lords rather than a lord among wits).
Contrary to many historians of the 1960s, Woods stresses that the Great Society was not qualitatively different from the New Deal liberalism that came before. Others have emphasized a shift from economic to quality-of-life or “lifestyle liberalism,” as Johnson emphasized in his University of Michigan speech on the Great Society. Woods argues that LBJ wanted to include the many groups left out by New Deal programs—blacks especially, non-union workers, the unemployed.
It may well be that this is what Johnson had in mind, but that the Great Society got taken over by people with other agendas. As Gareth Davies argues in his book on Great Society education policy, it was transformed “from opportunity to entitlement.” I would say that the Great Society represented an extension of the entitlement mentality to new groups and new fields—the new rights included clean air, a safe workplace, health care and, soon enough, rights to sexual gratification and abortion. Again it seems that Woods mentions but still underestimates the revolutionary nature of the Great Society. It is altogether likely that Johnson himself did not.
The reason why historians, politicians, and the American people generally do not grasp the scale of this transformation is that its principal transformers deliberately kept it disguised. The first generation of modern liberals, the Progressives, were quite frank about their revolutionary project. Woodrow Wilson (at least while he was in the academy—he was more circumspect as a politician) was quite explicit that the Founders’ view of government had been “outgrown.”
The New Dealers, on the other hand, used the forms and vocabulary of the Founders while transforming those terms. Thus, FDR spoke of the welfare state as a “second bill of rights” or an “economic bill of rights.” The 1936 Democratic party platform (with its convention held in Philadelphia, no less) declared New Deal entitlements to “truths . . . self evident.” The New Dealers did not say that the Constitution had been outgrown, rather that it had been hijacked by conservatives—the Supreme Court especially—and diverted from the Founders’ big-government intent.
In short, the New Dealers recognized that the American people still venerated the old Constitution (and, to FDR’s surprise, the Supreme Court’s interpretation of it, too), and so they deftly slipped themselves into the Founders’ clothes. “Liberalism”—classical liberalism—was what the Progressives said we had outgrown. FDR claimed the term “liberal” for its progressive opposite, as he called “rights” what were really something fundamentally different. The regime looked the same—two houses of Congress, one President (though FDR caused him to be term-limited), courts—but it was not the same. Roman Catholic theologians call this “transubstantiation.”
Modern liberals are still at it. As law professor Cass Sunstein, once President Obama’s regulatory “czar,” put it in his book The Second Bill of Rights: “The best response to those who believe that the second bill of rights does not protect rights at all is just this: unembarrassed evasion.” I suspect that Woods is not an accomplice, but merely a dupe.
Indeed, there is more than a little policy naïveté here. Woods takes at face value that Medicare and Medicaid supporters “repeatedly assured naysayers that, once passed, Medicare would not become the basis for national health insurance program.” In fact, its architects, like those of Social Security, said whatever they needed to say to get the program started, knowing it would expand into a more comprehensive program.
Woods argues that “In terms of its stated objectives, the Great Society was an unquestioned success.” But he doesn’t ask if Medicare and Medicaid actually improved American health—let alone at what cost. He boasts of the reduction of the poverty rate in the 1960s, without considering whether that reduction was due to Great Society policies or to other causes (quite possibly in spite of Great Society programs) and how it compared to poverty reduction before or after the 1960s. During the 1960s many social scientists realized that well-intentioned policies often had unintended and harmful effects. These were the original “neoconservatives.” Woods is not among them. He appears to be a liberal who was never mugged by reality.