Joseph Postell

The Anti-New Deal Progressive: Roscoe Pound's Alternative Administrative State

Recent scholarship has linked the rise of the Progressive movement in America to the creation of an “administrative state”—a form of government where legislative, executive, and judicial powers are delegated into the hands of administrative agencies which compose a “headless fourth branch of government.” This form of government was largely constructed during the New Deal period. The influential legal theorist Roscoe Pound provides the paradoxical example of a Progressive who balked at the New Deal. While many commentators have concluded that Pounds opposition to the New Deal was based on a departure from his earlier Progressive thought, his opposition was in fact based on a consistent Progressive philosophy. Pound therefore provided a vision of an alternative administrative state, which would achieve the ends of the Progressive vision but without the means of the administrative state.

Regulation during the American Founding: Achieving Liberalism and Republicanism

Previous scholarship on the political thought of the American founding has concluded that the founders amalgamated liberalism and republicanism but has not yet identified the precise contours of this combination. The first section of this article lays out the debate between liberalism and republicanism. The second section reveals that the founders, far from promoting laissez-faire, supported and enacted a wide array of regulations at the local, state, and national levels. The third and fourth sections discuss the justification for regulation and demonstrate that the founders’ approach to liberalism harmonized the exercise of individual rights and the common good, foundations that have been considered exclusively liberal and republican, respectively. The article concludes by suggesting that regulation provokes questions for the liberal/republican categories, since neither approach adequately explains the founders’ rationale in favor of both liberalism and regulation.

Progressive or Postmodern? The Use and Disadvantage of “Founders versus Progressives”

Abstract In the last few decades a narrative of American political thought has emerged which attributes the transformation of the American regime over the last century to the Progressive movement. This narrative tells the story of the Founders versus the Progressives, and explains modern liberalism as a departure from the ideas of the Founders. This article argues that, on the whole, the Founders versus Progressives account is descriptively accurate. Nevertheless, there are important difficulties that the account has yet to explain adequately. The article proceeds to identify and explain one of these difficulties, namely the difference between old Progressivism and postmodern Progressivism. For the Founders versus Progressives account to offer a fully compelling explanation of developments in American political thought, it will have to explain how contemporary liberalism and postmodern Progressivism are related to the philosophy of the earlier Progressives.

Introduction The Conservative Response to Progressivism

Today more scholars than ever appreciate how fundamentally the Progressives of the early twentieth century rejected the American founding and how their academic heirs controlled interpretation of the period for decades thereafter.1 The typical academic story about Progressivism had only contempt for those who criticized or opposed it. Resistance was nothing more than small-minded selfishness dressed up as principle or science: the rule of laissez-faire and social Darwinism. The constitutional jurisprudence of the Supreme Court prior to the New Deal was alleged to be an expression of these evils. This claim was clear enough in the dissenting opinion of Justice Oliver Wendell Holmes Jr. in the famous case of Lochner v. New York (1905), which overturned a state maximum hours law. Holmes chided the majority that “the 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.”2

“Roaring” against Progressivism

The successive presidencies of Warren Harding and Calvin Coolidge led a conservative resurgence in the aftermath of Woodrow Wilson’s presidency, which had witnessed radical reforms both at home and internationally. Harding promised a “return to normalcy” after these radical reforms, and many Americans responded favorably to his message.1 While Harding’s presidency ended suddenly with his passing in August 1923, his vice president Calvin Coolidge continued to restore the traditional American policies that Harding promised to deliver. Coolidge presided over much of the “Roaring ’20s,” as they have often been called. During those years— and in the years leading up to his presidency—Coolidge offered the most thoughtful, comprehensive, and consistent defense of conservatism and response to progressivism of any president in the twentieth century. As Paul Johnson writes in Modern Times, “Coolidge was the most internally consistent and single-minded of modern American presidents. If Harding loved America as Arcadia, Coolidge was the best-equipped to preserve it as such.” Historians’ estimation of Harding and Coolidge as failed and mediocre presidents, respectively, represents in Johnson’s words “the systematic misrepresentation of public policy over a whole era.”2