Harry V. Jaffa, who died January 10, at 96, attempted to re-found conservatism on the basis of its most philosophical of principles.
Readers seeking a fair representation of conservatism as a whole during the period from 1900-1930 will be disappointed in American Conservatism, 1900-1930, Joseph Postell and Johnathan O’Neill’s collection of primary source readings. This is not all bad. As noted in the title of the book’s introduction, this is a volume focused on “Constitutional Conservatism,” and not one concerning the deeper social and cultural criticism that flowered during this era among poets and literary critics. Still, the editors present less a collection of conservative writings on constitutionalism than a representative sample of mainstream, establishment conservative responses to political Progressivism. While the resulting collection is valuable, it presents a narrow, sanitized, and somewhat superficial picture of American conservatism.
At its heart, Progressivism was (and is) an attack on the Constitution and the rule of law. Progressivism’s basic premise is that formal structures limiting the federal government to its enumerated powers (principally separation of powers, federalism, and checks and balances) are ill suited to a democratic society procuring the security and well-being of its people. Thus, any serious opposition to Progressivism must be rooted in defense of our limited, republican Constitution. The selections here highlight responses to Progressives’ program of national administration, seeking to defend limited, constitutional rule and more fundamental local governments and associations. Unfortunately, the editors choose to exclude selections from the New Humanists (Irving Babbitt, Paul Elmore More and other important thinkers) and the Agrarians (especially those who contributed to the Southern manifesto, I’ll Take My Stand, published in 1930). In this way they avoid dealing with difficult debates over principle and policy along with fuller treatment of difficult race issues from the time. But they also fail to present a deeper and more nuanced picture of American constitutionalism and its cultural roots.
A Consistent, Partial Formula
The editors’ choice of selections was shaped by their definition of “conservative constitutionalism” as one “that accepted the need for a stronger national government, economic regulation, and an end to isolationism in American foreign policy.” This formula is the same as that found in establishment (or “neo”) conservatism to this day, with the same significant limitations in its capacity to defend limited self-government or to integrate the traditional conservatism on which it somewhat faithlessly relies. It was no less a partial formula in the early than in the late 20th century and produces the same, limited, cast of characters in each era.
There certainly are highlights. Calvin Coolidge—the one arguable conservative giant of the early 20th century—is well represented in essays describing the American character, the limitations of law in maintaining a good society, and the importance of self-government within the American tradition. The editors also include several important writings from James M. Beck, a powerful thinker who also played a key role as Solicitor General and later fought in Congress and the Supreme Court against the New Deal. Beck was an early analyst of limited, republican government’s need for a constitutional morality among officeholders, sustained by a popular ethos of restraint and desire for limited government. His selections present a powerful argument against administrative centralization and the debilitation of the people’s character by government overreach.
More typical are selections from William Howard Taft. Taft, a mainstream Republican who lost the presidency to Woodrow Wilson on account of Theodore Roosevelt’s outsized ambitions and increasing radicalism, was no deep philosopher. His Supreme Court decisions were decidedly middle-of-the-road for the time, as was his thought more generally. Often termed a half-hearted Progressive, he nevertheless sought to maintain the formal structures of constitutionalism in the face of Progressives’ centralizing zeal. The editors include Taft’s well-reasoned argument against TR’s claim to a presidential prerogative, defending the Constitution’s essential nature as a grant of limited, structured powers.
I am surprised that this volume, dealing with constitutionalism from an era which saw several crucial Supreme Court decisions and suffered a real dearth in first-rate thinkers, contains no selections from Court opinions or even discussion of cases like Lochner v. New York (on regulation of working conditions) or Buck v. Bell (on compulsory sterilization of the “unfit”) at the center of crucial debates among conservatives. The latter case saw an 8-1 majority supporting sterilization, with Justice Butler’s important dissent generally dismissed on account of his Catholicism.
There is some enlightening discussion of Progressive-era constitutional amendments. Most important is the focus on the 18th Amendment. Excerpts from both Beck and Nicholas Murray Butler touch on the severe damage the demand for national prohibition did to both federalism and the rule of law. Both highlight how increasing demand that the national government restructure social institutions and individual character undermined self-government and helped produce Progressivism and the administrative state.
Less inspiring, if still instructive, are readings from one-time Secretary of State Elihu Root and academic and diplomat David Jayne Hill. Especially in the volume’s first chapter, both show an appreciation for the historical roots of American ordered liberty but proceed to strip it of its deeper, especially religious content in a kind of scientism much akin to Progressivism itself. The result sounds like nothing so much as a determination to stand athwart history murmuring “not quite so fast” as Progressive “reforms” overtake the American constitutional order.
The low point of the volume is a set of readings from Warren G. Harding. One learns from these readings principally that Harding’s obscurity is well deserved. His encomiums on American traditions of individual self-help and community self-government seem tailor-made to appeal to middle America. But his oft-stated determination that the federal government shall make Americans “safe” and that it shall help the people “progress” as part of a united humanity, while easily dismissed as part of the rhetoric of the age, are no less vapid and Progressive-Light for all that.
The editors are correct to highlight (if not to define as “conservative”) this “me too” mindset. It culminates in Herbert Hoover’s paean to “equal opportunity” in a 1928 campaign speech about “constructive government.” Hoover, who would soon lose the presidency to FDR, engages in the kind of organizational enthusiasms that characterized his time in public office. Committees, administrative boards, and a host of government organizations operating on a “principle of co-operation” would, he claimed, make it possible to expand the role of the federal government without destroying Americans’ fundamental associations and character. Without resorting to open government control, this “wonder boy,” as Coolidge derisively called him, would see that the people were cared for by an overarching set of national institutions. “Cooperation between the government and business agencies” would even “mitigate the violence of the so-called business cycle.” History proved otherwise.
Moreover, having already given up America’s traditional alternative to federal control—state, local, and civil social action buttressed by a determination to remain free and self-governing—establishment Republicans lost their place in national politics. Even exhaustion with America’s only President for life (FDR) and his successor’s continuing extremism produced only a Republican “do nothing Congress.” It took Dwight Eisenhower to show Republicans how to succeed by surrendering to the administrative state. Revulsion at this form of establishment Republicanism was a significant motive behind the work of figures such as William F. Buckley, Jr. and Russell Kirk launching the conservative movement of the postwar era.
From Progressivism-Light to Right Wing Liberalism
Taken as a whole, this volume furthers a specific narrative within conservative thought. It presents a kind of anthropology or prehistory of the establishment conservatism of the late 20th and early 21st centuries. The Republican administrations of Bush I and II, and the conservative think tank and foundation complex that grew up around them supported a “respectable” brand of conservatism that emphasized low taxes, economic growth, and pro-business policies within the confines of the Administrative State. The failures of this brand of “right wing liberalism” have been noted in many times and places. Still, the similarities with selections in this volume are striking. One can find parallels even in the major characters, with Coolidge playing the role of Ronald Reagan, the heroic but somewhat naïve partisan of American civil religion, and Herbert Hoover as the feckless George W. Bush, albeit with a much better command of political facts, administrative law, and English grammar.
By sanitizing their collection, the authors leave out, not only some immoral opinions about racial issues, but also the tensions within conservatism, and thus the limitations of certain principles they promote. One important example: party loyalty. Several selections are presented that praise party loyalty and responsibility, even citing the formative writings of Edmund Burke. But, where Burke’s arguments and actions both spoke to the limitations of such loyalty in light of deeper principles, the readings here do not. Moreover, we hear nothing of Southern conservatism, which was identified with the Democratic Party. On foreign policy, too, we hear only from those in favor of (somewhat limited) international law nostrums to the pointed exclusion of “isolationists.” However much one may disagree with the segregationist element of Southern conservatism at a time of widespread racism, or with the body of thought that produced the America First Committee in the pre-World War II era, both were undeniably important parts of conservatism at the time. To erase them from the record is to deny important and distinctly non-racialist elements of later conservatism.
A Missing Doctrine
Also troubling is the minimal and rather misleading coverage of the divisive doctrine of Substantive Due Process. The editors imply that the subject has been well covered in the literature, but this is all the more reason to include more, especially in a volume highlighting constitutional thought. The laissez faire court’s decisions injected highly problematic ambiguities into Republican Party arguments and policies during the era covered. These issues lie at the heart of fundamental changes to our constitutional order culminating in the New Deal.
The one partial exception to this glossing over of Substantive Due Process is itself highly problematic. The editors present a speech from Supreme Court Justice George Sutherland including passages like, “I sincerely believe myself to be fairly progressive,” followed by the warning that progressive goals must not be allowed to undermine constitutional order. Such platitudes mask only partly the hard edge of Sutherland’s judicial imperialism.
Sutherland declares that in private businesses the owner has “an inherent, constitutional right to the market price, fixed by what is called the ‘higgling of the market,’ irrespective of the extent of his profits.” Here the Court’s duty to uphold property rights is mistaken for carte blanche to reconstruct society in favor of an ideology of radical individualism. In succeeding paragraphs Sutherland asserts the Court’s sovereign right to define the right to property so as to outlaw state, local, and voluntary acts and associations that he deems inappropriate restraints of trade. This narrow absolutism was enforced by Courts against the pre-existing institutions and customary laws of a decentralized people and set of governments. It went against the clear intention of the 14th Amendment on which it relied. It undermined American constitutionalism and the American way of life. A series of decisions not mentioned in this volume relied on this doctrine to nationalize markets, subject local relations to control by federal courts, and ended by delegitimizing economic liberty for millions of Americans. Yet no conservative criticism of this doctrine and its effects (one thinks, for example, of Paul Elmer More’s “Property and Law”) is represented, here.
In sum, the editors have produced a volume that perpetuates the “Wall Street vs. Main Street” divide in American conservatism by essentially ignoring the religious and cultural dimensions of a time of great change and unrest in the United States. Labor challenges, Wilson’s assault on civil rights (especially among immigrant groups), and the determination to forge a national character as well as national markets and standards of conduct, all escape notice in this volume. Why? Because the editors do not merely limit themselves to reproducing conservative writings dealing with constitutional issues. They also limit themselves to reproducing the kind of persons and arguments readily subsumed in the narrative of prudent, moderate, establishment Republican Party loyalty. Doubtless, many will find this collection, with its many limitations and narrative purposes, to their liking. In all fairness, it should be advertised for what it is: a presentation of establishment Republican ideology from the early 20th Century.
 The growth of this “right wing liberalism” is a primary focus of Ted V. McAllister and Bruce P. Frohnen, Coming Home: Reclaiming America’s Conservative Soul (Encounter Books, 2019) chapter 7.