Sean Beienburg’s Progressive States’ Rights: The Forgotten History of Federalism is a novel addition to the study of American political development, uncovering an important tension within American progressivism. The work’s virtue is that it analyzes the early twentieth-century progressives neutrally, considering them as good-faith actors consistent with the American political tradition. By neglecting political theory, however, the book ignores the ways the early progressives departed from the Framers’ understanding of natural rights and rejected their tradition in significant ways. Even as some of the early progressives embraced the concept of “states’ rights,” they abandoned a more universal conception of individual rights as natural and inalienable. They temporarily respected the means of our constitutional order in defiance of its proper end.

Conservative Progressives?

Strangely, Beienburg’s progressives include some who would be more properly considered conservatives. Although his first chapter clearly defines and discusses states’ rights, it does not define progressivism. This obscures the fundamental distinctions among the actors he analyzes. 

For example, he categorizes figures such as Elihu Root and William Howard Taft as progressives. Although both men supported regulation during the progressive era in response to industrialization and urbanization, their philosophic framework aligned with conservative thought rather than with progressivism. Taft, Root, and Henry Cabot Lodge all favored regulatory measures, but that alone is not sufficient to label them progressives. James Madison advocated the regulation of factory conditions, but that does not make him a progressive. Andrew Jackson advocated steamboat regulations, but he was not a progressive. 

Progressivism and conservatism are, fundamentally, theories about human nature and the role of government. Progressives and conservatives cannot be simply defined by their time, place, and isolated actions in response to political circumstances.

Progressivism is a theory that human nature and fundamental principles of justice are not fixed, objective, and knowable. For progressives, the undefinable goal of human progress determines what government ought to do and how it ought to do it. Hence, Wilson’s call for a “New Freedom,” and his argument that the founding documents “read now like documents taken out of a forgotten age.” For progressives, because human nature progresses, so must our understanding of freedom and law. 

According to progressives, because human nature progresses, government must help man achieve human progress or attain the ethical ideal. Richard T. Ely, a leading progressive thinker, defined the “ethical ideal … [as] the most perfect development of all human faculties in each individual, which can be attained … all the higher faculties—faculties of love, of knowledge, of aesthetic perception, and the like.” Ely compared government’s role in achieving the ethical ideal as akin to a gardener who removes the weeds that would impede the perfect cultivation of the garden:

What man does by his culture of plants and animals is simply an improvement of unaided nature. He assists nature, and removes and destroys as completely and as rapidly as possible those species and individuals which are not adapted to his purposes, and then he makes the best possible environment for those which serve his purposes most fully.

Because human progress is unlimited, “The State” must be unrestrained in attaining it, even going so far as removing certain “individuals” or “species” who impede progress. Ely wrote, “There is no limit to the right of the State, the sovereign power, save its ability to do good.”

Conservatism, on the other hand, posits that human nature and the principles of justice are fixed, objective, unchanging, and knowable. Conservatism limits the powers of government so that it may not infringe upon inalienable natural rights. Conservativism understands that regulation may be necessary, and different circumstances may require new regulations, but understands regulation as a tool to protect rights, which are fixed, unchanging, and knowable. 

The primary advantage of federalism, at least according to Publius, was to provide a double security to protect rights. The Wilsonian and New Deal progressives did not see human rights, human nature, and the end of government as fixed. Nor did they see the “machinery” and powers of government as limited to the purpose of securing rights. Thus, progressive adherence to a states’ rights framework was bound to collapse as history marched forward and the abstract and ever-changing principle of human progress required increased governmental power. 

By failing to clarify these fundamental theoretical differences, Beienburg does not make the key distinctions necessary to identify true progressives. Taft’s and Root’s advocacy for some regulation does not make them progressives; rather, it highlights their alignment with a conservatism which understands that regulation may be necessary to secure rights, but that regulation does not progress human nature. The progressive approach understands regulation to be both necessary and transformative of human nature.

The two true strands of progressivism that Beienburg properly identifies—Wilsonians and New Dealers—shared a progressive philosophy. On one hand, Beienburg posits that some conservative “progressives” favored states’ rights; on the other hand, he posits that the New Deal progressives led progressivism to stray from states’ rights. This leaves the early Wilsonians as the true states’ rights progressives. This contention is both true and important.

“The New Freedom” Espoused and Progressed

Beienburg identifies an important tension within progressivism when he discusses the Wilsonians who advocated for “The New Freedom,” and initially sought to promote progressive reforms at the state level. He correctly observes that “similar to Taft and unlike Roosevelt, Wilson did not propose to tame corporate power by massively raising up federal power but by narrower interventions cutting down consolidated economic power.” Wilson’s approach initially emphasized the promotion of progressive policies at the state and local levels, a commitment that, on the surface, seems to align with the principle of states’ rights. 

Limited government is a means to achieving the noble purpose of safeguarding the inalienable rights of all from those who would abuse power for ideological ends.

As Beienburg notes, however, Wilson’s vision was ultimately subsumed by the more expansive ambitions of New Deal progressives, who fundamentally altered the trajectory of progressive policy-making.

Even before the New Deal progressives displaced the New Freedom approach, Wilson had revealed the necessity of employing federal power. Beienburg notes, “In the years before the 1912 election, Wilson had carefully pivoted between conservatism and progressivism in order to remain broadly acceptable to the American electorate.” Finally, he admits, “Wilson’s governance, especially after 1914, moved left and came to more closely resemble New Nationalism, ironically leading Herbert Croly, among others, to embrace Wilson as a champion of progressive thought and especially national power.” One wonders if Wilson’s evolution toward nationalism was an unavoidable outgrowth of his progressive philosophy. 

Beienburg states that “to what extent Wilson himself was privately a nationalist … or viewed New Freedom as an intermediary stopgap on the way to a national community … or was a true believer in limited government before changing is beyond the scope of this study.” Answering this question determines whether or not any progressive leaders were “states’ rights progressives.” Proving that Wilson and others were not merely concerned with states’ rights for pragmatic reasons, but principally committed, determines whether or not states’ rights are a significant strain within progressivism. 

State Progressives?

Beienburg avoids pinning down the national progressives because he relies on the activity of those at the state level to prove that progressives were committed to states’ rights. In doing so, he uncovers a forgotten and unstudied faction within progressivism. It is unclear, however, to what extent these actors can be seen as true expositors of either progressivism or states’ rights.

With respect to the Sheppard-Towner Act, he argues that “opposition was nonpartisan, nonregional, principled, and procedurally sound.” He admits that “although much of the opposition … came from conservatives and libertarians … the fact that so many prominent progressives joined with conservatives makes clear that something was at work.” He contends that “it is clear that many of their most prominent [progressive] peers did so out of a principled commitment to states’ rights.” With these state-level progressives, Beienburg identifies a progressive faction who are intriguing because, although Wilson had pivoted, some progressives at the state level had not.

Beienburg carefully details the state debates over accepting Sheppard-Towner funding; however, after his long and careful discussion, he reveals that 41 of the 48 states accepted federal funding within a year. He contends that opposition was not only “nonpartisan, nonregional, and procedurally sound,” but that it was principled. If the opposition was principled, it is clear that states’ rights were not the preeminent principle among the actors. 

State Level Revolts

The most effective argument that progressives embraced states’ rights is presented in chapters four and five. Unlike the counter-intuitive discussion of the Sheppard-Towner Act that ends with widespread state acceptance of federal funding, Beienburg effectively discusses state opposition to federal control over minimum wage regulation. He shows that states such as Oregon, Washington, and California maintained state wage commissions despite Supreme Court dictum, and other states in the Midwest sought workarounds or attempted to force judicial reconsideration of Adkins v. Children’s Hospital. 

Beienburg shows that the most radical progressive idealogues, such as John R. Commons, sought to circumvent the Adkins opinion and relied on state action to pursue progressive aims. Commons, then a professor at the University of Wisconsin, advised the legislature to pass a law prohibiting “oppressive” wages. Both houses of the Wisconsin state legislature acquiesced. Furthermore, Wisconsin progressive Edwin Witte blatantly argued that Wisconsin’s law sought to “forc[e] the Supreme Court to consider a different settlement.” Years later, Witte argued that Wisconsin’s actions would leave the Supreme Court “somewhat embarrassed” for interfering with the states’ authority to assert a “principle … conform[ing] with true ethics.” By expanding his previous research presented in American Political Thought, Beienburg substantially adds to our understanding of the state-based progressives’ approach to pursuing their ideological aims at the state level; however, his most intriguing evidence comes from the progressive theorists, yet he does not want to consider the extent to which theory shaped practice. 

The Purpose of Federalism

Beienburg’s historical approach to understanding progressive states’ rights uncovers important tensions, but would benefit from grappling with progressive political thought. This is especially true because Beienburg shows that the thinkers—Commons and Witte, for example—shaped reforms at the state level in Wisconsin. An understanding of the theorists’ contributions to state progressivism is essential because, according to Dr. Frederic Howe’s 1912 book Wisconsin: An Experiment in Democracy, “Wisconsin is doing for America what Germany is doing for the world.” Howe, a state representative in Ohio, sought policies to emulate Wisconsin for this reason.

Beienburg’s historical approach, therefore, misses a critical point. The foundational purpose of federalism is committed to a philosophic truth: the existence of natural, inalienable rights, that cannot be infringed by any government. The Constitution and federalism seek to limit governmental power in order to protect individual, inalienable rights. This function of federalism contrasts with the progressive view, which prioritizes the expansion of government power in pursuit of social objectives: to use government power to progress human nature, in the belief that it is not fixed, objective, and knowable. 

Beienburg points out that Elihu Root expressed concerns that deviations from constitutional principles could lead to a breakdown of the constitutional order itself. This raises a fundamental question: what actually makes up the constitutional order? To answer this, one must consider the principles that underpin it. Abraham Lincoln famously described the Constitution as a silver frame designed to protect the “apple of gold”—the Declaration of Independence and its assertion of inalienable rights. In his analysis, however, Beienburg does not sufficiently interrogate whether all “progressive policy views” align with the universal truths expressed in the Declaration and the Constitution’s role in obliging government to limit itself with respect to those truths. 

Perhaps state legislation fostering minimum wage requirements was innocuous, but such legislation was not the extent of progressive activity at the state level, as Tiffany Jones Miller and others have shown. Progressivism also, for example, produced Indiana’s 1907 Eugenics Law authorizing state-mandated sterilization “to prevent procreation of confirmed criminals, idiots, imbeciles, and rapists.” Twelve states enacted similar legislation within five years. After returning from Germany, C. M. Goethe bragged to his eugenicist friend, “You will be interested to know that your work has played a powerful part in shaping the opinions of the group of intellectuals who are behind Hitler in this epoch-making program. Everywhere I sensed that their opinions have been tremendously stimulated by American thought.” 

Ideas have consequences. Limited government is a means to achieving the noble purpose of safeguarding the inalienable rights of all from those who would abuse power for ideological ends. Sean Beienburg’s book uncovers a forgotten history. Let us not forget the progressives’ philosophy that sought to violate nature rights in the name of progress.