Rediscovering Americanism: And the Tyranny of Progressivism

by Mark R. Levin

  Positive liberty, positive law, and positivism are an ideological brew of tyranny. The pursuit of the “final stage” of human development grows miserable and ultimately elusive. Consequently, as mentioned earlier, positivism preaches ignorance of the ultimate meaning of law and absolute compliance with the state’s ends. It requires a governing process of rules, demands, and adherence. The individual is subservient and submissive. He has no meaningful recourse. For example, as explored in my books Liberty and Tyranny and Plunder and Deceit, in present day, “man-made climate change” is declared by the state to be a scientific fact, around which the economy is to be reorganized and about which society is to be indoctrinated. Those who question not just the “science” but the motivations behind the movement are publicly denounced and ridiculed as “deniers.” All contrary scientific evidence and knowledge are dismissed outright. The state has spoken and all shall obey.

  As a result of these influences, over the last century there has been a thoroughgoing change in American jurisprudence and the legal system—and, therefore, in liberty itself. Specifically, the progressive’s ideology is not only omnipresent in lawmaking through the administrative state, but is the overwhelmingly dominant approach to adjudication. In other words, more and more the law is as the progressive ideology dictates—a force for societal transformation and social reorganization. The banishment of the Constitution and republicanism, like the disembowelment of the Declaration of Independence and individualism, has been scrupulous. There is now a vast gulf between the government the progressives have constructed and the framers’ Constitution.

  In his book The Ideological Origins of the American Revolution (1967), the American historian and professor Bernard Bailyn writes, “The theory of politics that emerges from the political literature of the pre-Revolutionary years rests on the belief that what lay behind every political scene, the ultimate explanation of every political controversy, was the disposition of power. The acuteness of the colonists’ sense of this problem is, for the [modern] reader, one of the most striking things to be found in the eighteenth-century literature: it serves to link the Revolutionary generation to our own in the most intimate way. The colonists had no doubt about what power was and about its central, dynamic role in any political system. . . . What gave transcendent importance to the aggressiveness of power was the fact that its natural prey, its necessary victim, was liberty, or law, or right. The public world these writers saw was divided into distinct, contrasting, and innately antagonistic spheres: the sphere of power and the sphere of liberty and right. The one was brutal, ceaselessly active, and heedless; the other was delicate, passive, and sensitive. . . . Not that power was in itself—in some metaphysical sense—evil. It was natural in its origins, and necessary. It had legitimate foundations ‘in compact and mutual consent’—in those covenants among men by which, as a result of restrictions voluntarily accepted by all for the good of all, society emerges from a state of nature and creates government to serve as trustee and custodian of the mass of surrendered individual powers.”46

  The Founders were no less concerned that the federal government they were establishing would avoid the institutionalized abuses of power of other postrevolutionary socie­ties. In this effort they strived mightily, and in this regard they looked to, among others, the wisdom of French philosopher Montesquieu and his seminal work, The Spirit of the Laws. Montesquieu discussed the nature of man, societies, and government. He explained that “[i]n despotic states, the nature of the government requires extreme obedience, and the prince’s will, once known, should produce its effect as infallibly as does one ball thrown against another. No tempering, modification, accommodation, terms, alternatives, negotiations, remonstrances, nothing as good or better can be proposed. Man is a creature that obeys a creature that wants. He can no more express his fears about a future event than he can blame his lack of success on the caprice of fortune. There, men’s portion, like beasts’, is instinct, obedience, and chastisement. It is useless to counter with natural feelings, respect for father, tenderness of one’s children or women, laws of honor, of the state of one’s health; one has received the order and that is enough.”47 In this, has Montesquieu not described the basic character of the progressives and their ideological forefathers?

  Montesquieu also argued that for much of humankind, despotic governments have prevailed. “Despite men’s love of liberty, despite their hatred of violence, most peoples are subjected to this type of government. This is easy to understand. In order to form a moderate government, one must combine powers, regulate them, temper them, make them act; one must give one power a ballast, so to speak, to put it in a position to resist another; this is a masterpiece of legislation that chance rarely produces and prudence is rarely allowed to produce. By contrast, despotic government leaps to view, so to speak; it is uniform throughout; as only passions are needed to establish it, everyone is good enough for that.”48 Again, is Montesquieu not forecasting the progressives’ war on the separation-of-powers doctrine?

  Even democracies are susceptible to tyrannies of a certain kind. Montesquieu wrote: “The principle of democracy is corrupted not only when the spirit of equality is lost but also when the spirit of extreme equality is taken up and each one wants to be the equal of those chosen to command. So the people, finding intolerable even the power they entrust to others, want to do everything themselves: to deliberate for the senate, to execute for the magistrates, and to cast aside all judges.” Therefore, “democracy has to avoid two excesses: the spirit of inequality, which leads it to aristocracy or to the government of one alone, and the spirit of extreme equality, which leads it to the despotism of one alone, as the despotism of one alone ends by conquest.”49

  The progressive has succeeded in both regards by claiming to emancipate the individual through the democratization of autocracy—that is, justifying the concentration of governing power and the coercive envelopment of the individual with images of extreme egalitarianism and utopian promises.

  For Montesquieu, like the framers, a republican government that was established by a fixed constitution, with the three powers of government—legislative, executive, and ­adjudicative—separated one from the other, provided the conditions for either creating or maintaining a free and civil society. He profoundly asserted that “[p]olitical liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen.” He went on to famously state the structure of such a government. “When legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from the legislative power and from the executive power. If it were joined to the legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”50

  Obviously, this construct of separating the powers of government for the purpose of preventing centralized despotism was absolutely fundamental to the framers. It is one of two major innovations incorporated into America’s republican system of constitutional government, the other being federalism. Indeed, the first three articles of the Constitution make this clear. Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”; Article II, Section 1: “The executive Power shall be vested in a President of the United States of America”; Article III, Section 1: “The judic
ial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”51

  During the subsequent state ratification debates, James Madison, Alexander Hamilton, and John Jay, all of whom had been delegates to the Constitutional Convention, famously penned and had published a series of brilliant essays later known as the Federalist Papers, in which they explained and defended the various provisions of the proposed Constitution, including the separation-of-powers structure.

  In Federalist 47 (February 1, 1788), Madison underscored Montesquieu’s view:

  The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.52

  In addition, in Federalist 51 (February 6, 1788), Madison wrote:

  [T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

  This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.53

  The second unique but crucial character of the Constitution was federalism. As a practical matter, since the states created the federal government in the first place, much care was given by the delegates to the Constitution Convention and the delegates to the state ratification conventions to protecting areas of state sovereignty from federal and national encroachment. Consequently, not only was the separation of powers among the branches within the federal government important in preventing the centralization of power; so too was the enumeration of specific powers within each branch of the federal government and in the federal constitution generally, thereby leaving all other governing authority to the states.

  The conceptual framework for federalism, or the confederation of states—where governing power is decentralized, shared, and divided among governing entities under a unified whole—predates the American founding. For example, Johannes Althusius (1563–1638), a German jurist and philosopher who provided the most elaborate exposition and defense of federalism, and who was informed by Aristotle, Cicero, and others, wrote about the early development of federalism in his book Politica (1603). “Even though these heads, prefects, and rectors [governors or magistrates] of provinces recognize the supreme magistrate of the realm [kingdom or nation] as their superior, from whom their administration and power are conceded, nevertheless they have rights of sovereignty in their territory, and stand in the place of the supreme prince. They prevail as much in their territory as does the emperor or supreme magistrate in the realm, except for superiority, preeminence, and certain other things specifically reserved to the supreme magistrate who does the constituting. Such is the common judgment of jurists. The head of the province therefore has the right of superiority and regal privileges in his territory, but without prejudice to the universal jurisdiction that the supreme prince has. . . .”54 Conversely, “[t]yranny is the contrary of just and upright administration. By it the foundations and bonds of universal association are obstinately, persistently, and insanely destroyed and overthrown by the supreme magistrate against his pledged word and declared oath. . . . A tyrant is therefore one who, violating both word and oath, begins to shake the foundations and loosen the bonds of the associated body of the commonwealth. A tyrant may be either a monarch or polyarch [where power is exercised by multiple officials] that through avarice, pride, or perfidy cruelly overthrows and destroys the most important goods of the commonwealth, such as its peace, virtue, order, law, and mobility. . . .”55

  Moreover, as University of Chicago law professor Alison L. LaCroix explains in her book, The Ideological Origins of American Federalism (2010), federalism in various ways was practiced in America even before the Constitution was adopted:

  [T]he history of American federalism began decades before the Constitutional Convention of 1787. Some of federalism’s central concepts, most notably the idea of constructing a government around multilayered legislative authority, had begun to emerge in the 1760s and 1770s, cobbled together by members of the colonial opposition in the midst of protracted disputes between British North Americans and their metropolitan counterparts. Nevertheless, the debates at the Constitutional Convention . . . represented a vital moment in which British imperial precedents, colonial practices, postwar exigency, and political theory came together in the hands of particular individuals to form both a new idea of government and an actual new government. The convention debates and the Constitution that resulted created and codified federalism in important ways. Arguments about the nature and scope of Parliament’s power to regulate the colonies, which began as the colonists’ response to what they viewed as unconstitutional legislation from Westminster, became by the 1780s a full-blown theory of government authority. With the rebellion against Britain behind them, the members of the founding generation were able—indeed, required—to consolidate the previous two decades’ many shreds and pieces of structural and political argument into a more or less coherent conception of government. In this sense, then, the discussions in Philadelphia represented neither an original moment of genius nor simply another instance of negotiation among existing groups and institutions. Rather, the period from 1787 to 1789 should be understood as a reexamination and reshuffling of fundamental ideas of government which Americans had begun experimenting with decades before. The drafting and ratification of the Constitution served to crystallize a novel, distinctively British North American theory of government that had been developing since at least the mid-1760s.56

  Again, the Federalist Papers are instructive. In Federalist 9 (November 21, 1787), Alexander Hamilton wrote:

  The utility of a Confederacy, as well to suppress faction and to guard the internal tranquility of States, as to increase their external force and security, is in reality not a new idea. It has been practi
ced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. . . .

  The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.57

  In Federalist 32 (January 3, 1788), Hamilton wrote:

  An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.58

  In Federalist 39 (January 16, 1788), Madison wrote: