Goldberg v Kelly illustrated Brennan's jurisprudence—his confidence that the Court was better than the political branches at making social policy.
As the Democratic convention rhetoric solidifies into cigarette ash and economic performance figures assail us, one line from President Obama’s speech should continue to intrigue and horrify us. Dealing with what he describes as decades-old challenges “will require common effort, shared responsibility, and the kind of bold, persistent experimentation that Franklin Roosevelt pursued during the only crisis worse than this one.”
Experimentation? Did Obamacare grant him a medical license? Did he at least obtain a human subject release form? All he knows is that he must be the total (“bold, persistent”) master of the situation. Whether we are the subjects of behavioral economics or of happiness commissions or rats in a maze is of no matter.
But there is far more here than Obama’s apparent admission of ignorance—it is his vision of a scientific controlled experiment that most alarms. Such “bold, persistent experimentation” requires a tyranny. The subjects of experiments, no more than inmates in a prison, may not control their treatment. Scientific utopias demand elimination of freedom, as we know from dystopian speculations from Plato through Bacon to Skinner.
Indeed, the phrase “bold and persistent experimentation,” though appearing without quotation marks, comes from President Franklin Roosevelt’s campaign speech at Oglethorpe University, May 22, 1932. FDR’s focus on experiment doubtless comes from John Dewey. As I have argued, Dewey’s “new American will understand himself not as someone reflecting self-evident truths about human nature, liberty, and happiness but as someone who has come to be of, by, and for liberal experimental social policy,” with the intent of making liberty-loving Americans more social and cooperative.
With the boldness of a Roosevelt instead of the hapless Herbert Hoover, whom he more closely resembles, Obama dismisses such frightful scenes with their revolutionary implications by his argument about citizenship. In what might be the most successful rhetorical ploy of Obama’s speech, the threatening talk about experimentation is smoothed by exploiting and transforming the American political tradition: “[W]e also believe in something called citizenship – a word at the very heart of our founding, at the very essence of our democracy; the idea that this country only works when we accept certain obligations to one another, and to future generations.” Obama is channeling one element of Lincoln’s Gettysburg Address here–employing patriotic language to disguise his radical change in the meaning of basic political concepts. Yuval Levin observes (link no longer available) that in the founding period that Obama hails the term citizen was “often used to refer derisively to radicals,” as in the Federalist references to the French Revolution-friendly “Citizen Jefferson.”
Obama and the entire convention pitted a corporate identity (in the form of race, sex, sexual orientation, unions, and other groups) against natural rights-bearing individuals (greedy white males). Moreover, Obama’s seemingly Burkean notion of ties and obligations across generations in fact merely excuses one generation robbing the fruits of future generations, as national debt does. And he embellishes this with the declaration that “a freedom without love or charity or duty or patriotism is unworthy of our founding ideals and those who died in their defense.” From the perspective of the new citizen, “America is not about what can be done for us; it’s about what can be done by us, together, through the hard and frustrating, but necessary work of self-government.” This of course legitimates the continuing redistribution of wealth for the sake of expanding the welfare state and strengthening the social safety net. He mentions rights only twice in an American context, because, contrary to his purpose, they strengthen individuals.
This patriotic disguise is evident in the whole Democratic convention, which boldly led with conventional wholesomeness, e.g., Elizabeth Warren as Sunday school teacher rather than affirmative action supplicant. The expansion of the welfare state is not based on self-interest of any sort. Quite the contrary. The revision of the language transforms the Democratic Party, the party of Jefferson, into another European social democrat party.
One appreciates Obama’s radicalism when seen against its backdrop in Franklin Roosevelt’s major speeches. Obama and FDR assume the Charles Beard thesis about the founding, pitting the equality, liberty, and fraternity of the Declaration against the inequality, commerce, and oligarchy of the Constitution. In this view the one promises youthful openness, the other reactionary restrictions. (More recently the younger Gordon Wood and James Morone have developed more sophisticated versions of this argument.) As Woodrow Wilson and other early Progressives made clear, the object of this approach was to separate the Declaration of Independence from American attachments and to obliterate the individual rights and the Constitution as their safeguard as the core of American authority and replace them with the administrative state.
Thus Obama follows the most transformative Presidents in American history, including Jefferson, Lincoln, and Franklin Roosevelt, who sought to reinterpret the Declaration and American political history to tar enemies, bless friends, and form governing coalitions that would last generations. Obama’s arguments in his convention speech about citizenship, the superiority of duties to rights, and the American purpose all conform to Franklin Roosevelt’s vision, in particular that set forth in his speeches on Progressive Government and on the Second Bill of Rights.
In his Commonwealth Club Address during the 1932 campaign Roosevelt reinterpreted American political history to conclude with the picture of an economically exhausted America at its limits. “A glance at the situation today only too clearly indicates that equality of opportunity as we have known it no longer exists.” The reality of “drab living” demands “a re-appraisal of values” concerning political economy. The industrial titan who would create and expand is now “as likely to be a danger as a help.” Our wealth can less be expanded than redistributed: “The day of enlightened administration has come.” Hence Roosevelt called for “the development of an economic declaration of rights, an economic constitutional order. This is the common task of statesman and business man. It is the minimum requirement of a more permanently safe order of things.” “You didn’t build that” naturally follows from this thinking.
In place of the Declaration of Independence that recognized pre-political rights via “the laws of nature and of nature’s God” and a limited government based on consent, Roosevelt proposes a new version of the social contract. After all, “The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order.” The new social contract is not between individuals, who authorize government, but rather between the government and the people. From the Founders’ Lockean notion that each American owns himself, we have surrendered to the idea that we all serve each other, at the command of the government. Appropriately the Democratic Convention opened with a video declaring that “the government is the only thing we all belong to.”
The old principle of equality of opportunity applied to rights of the old order, which would produce inequalities. Thus, in this new economy, a second Bill of Rights, guaranteeing “true individual freedom,” would have to provide “a new basis of security and prosperity.” In his 1944 State of the Union Address Roosevelt proposed eight provisions, among them:
- The right to earn enough to provide adequate food and clothing and recreation;
- The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
- The right to a good education.
- All of these rights spell security….
In order to meet “adequate” or “good” standards economic redistribution would be continuous. And in order to combat “economic fears” and assure “security” the government’s powers would need to expand in order to satisfy the anxieties of the most anxious of citizens, who, of course, would have every incentive to feel more economic and other fears. The government creates rights, duties, and the common good. Obama’s new patriotism enforces these new rights and provides security.
Finally, Roosevelt declares not just a moral imperative but a life and death necessity that his vision of government be established. For “if history were to repeat itself and we were to return to the so-called normalcy of the 1920’s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of fascism here at home.” The fight against fascism occurs both abroad and at home. FDR and Truman did not hesitate to label their Republican opponents as fascists conspiring to rob people of their liberties as they have redefined them. Hence Democratic politicians today have virtually no restraint today in making outrageous charges against their opponents. After all, they are following successful models.
Lincoln described the Declaration as an apple of gold set in the Constitution’s frame of silver. Obama’s founding has no such beauty in it—only the bright lights of a laboratory.