The Logic of Progressive Legal Infidelity

It has been widely remarked that President Obama and his administration are making a habit of failing to enforce the law when legal obedience would be politically inconvenient. Most importantly it has suspended or delayed various provisions of the Affordable Care Act. My focus here is on how such behavior follows from the inner logic of progressivism as a political philosophy and a governing coalition.

Progressivism at its base is about enforcing a pattern of equality, necessitating redistribution and social engineering. As it has waxed over the last century, its projects have become more ambitious until it has culminated in effort to remake one sixth or so of the American economy. But the problem with central planning is that life, including political life, is unpredictable. Just as no military plan survives contact with the enemy, no positive program of government social construction and certainly not one as ambitious as Obamacare can anticipate all the secondary and tertiary effects that come in its wake. It could not do so,  even if the program were wholly coherent at its inception, which limitations of knowledge and politics make impossible.

Thus, there will be an inevitable need for ad hoc changes.  And yet the Progressive coalition is always unstable,  being made up in large part of people who want things from the government that conflict. Thus, the coalition that passed the law will not remain unified.  Indeed, it may lose its congressional majority. Hence, as Obama has found, it has become impossible to adapt the program to new circumstances through the democratic means. Unilateral power of legal suspension is the logical outcome so long as the President is a Progressive and his coalition has frayed. 

Of course, providing discretion in the form of the administration from the outset to change the law is another possible solution, but sufficiently ample delegation not always a politically feasible option.  Discretion raises fears of unchecked power among the people and even different parts of the Progressive coalition may fear that the discretion will be exercised against them.

In contrast, the classical liberal coalition naturally is more legally faithful, because its laws are not aimed at social reordering but focus instead protecting the order of the market. Contract and property rules do not need the same constant tweaking. The classical liberal coalition is also more likely to be unified since it more concentrated on growth for all than redistribution from some to others.

Let me end by being clear that our major political parties are hardly pure expressions of either the classical liberal or progressive ideal. But Obama came in as purer example of Progressivism than any Democrat in more than half a century. It is not surprising that his administration is beset by charges of lawlessness on domestic matters.   It is not a bug of Progressivism, but a feature.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. nobody.really says

    Progressivism at its base is about enforcing a pattern of equality, necessitating redistribution and social engineering. As it has waxed over the last century, its projects have become more ambitious until it has culminated in effort to remake one sixth or so of the American economy. …

    [T]he classical liberal coalition naturally is more legally faithful, because its laws are not aimed at social reordering but focus instead protecting the order of the market. Contract and property rules do not need the same constant tweaking.

    Perhaps – but the suggestion that enforcing a pattern of equality only affects “one sixth or so of the American economy” is a bit modest. Anti-bigamy laws, democracy itself, the invention and preservation of public property and freeways, Magna Charta, the Revolutionary War, the 14th Amendment’s Equal Protection clause, the Homestead Act, the end of slavery, public education, antitrust laws, labor laws, minimum wage laws, civil rights laws, housing laws, the GI Bill, Social Security, Medicare, Medicaid, FEMA, Obamacare, even the uniform commercial code – these were all instituted in part to promote equality. I’d guess this added up to somewhat more than one sixth of the US economy.

    To be sure, people who disdain concern for their neighbor and care only about rules designed to reinforce the status quo quite naturally are less interested in social progress. I know the fact that King George was denied his colonial properties remains a thorn in your side; that slave owners were not paid for their appropriated property is still a sore point; that courts won’t enforce freely-negotiated restrictive covenants against racial minorities still wrangles. Damn Progressives and their insistence on promoting equality!

    In conclusion: Yup, Obama has let enforcement deadlines slip on Obamacare because he’s trying to make our health care system work with something akin to the efficiency and efficacy of France’s system. In short, he’s trying to make progress. If he shared the same contentment for the status quo health care system that the Republican Party has, he wouldn’t be in this situation. Complacency has its rewards.

    • says

      What’s more damnable, nobodyreally, your (alleged) Republican-libertarian “complacency” about our health-care system, or the Democratic and “moderate so-called” very real complacency about our constitutional system? If Americans cease to be able to agree on the authority of the Constitution, may I remind you, EVERYTHING falls apart: health care, the environment, inequality levels, everything. And if a future principle-less Republican president starts revising laws unilaterally (maybe with innocuous-sounding “letting enforcement deadlines slip” excuse) you and the Democrats sure won’t like it. Obama’s actions are so out of line that they in fact merit impeachment, but the Republicans figure the I-word is a political loser right now. So no, this revision-on-the-fly cannot be allowed to become standard operating procedure. Read Washington’s Farewell address where he talks about the authority of the Constitution and get serious.

      • nobody.really says

        Oh, foo. It’s all politics. You don’t like Obamacare, and that’s why you’ve got your nose out of joint.

        I’m supposed to worry about some threat posed by a future president with such disrespect for the Constitution that he “lets deadlines slip”? Ooo, I’m shaking in my boots.

        In the meantime, we have ACTUAL presidents that incarcerate people without due process and lock them in prisons putatively beyond the reach of due process. Presidents that claim a right to — and actual do — execute US citizens on their say-so. Why don’t you warn me about that?

        ‘Cuz those topics aren’t on the Fox News talking points, whereas Obamacare is.

        Do we have problems with an unbridled Executive Branch. Hell yes — and we’ve had these problems for a while. But when you tell me that your anxieties are triggered by Obamacare deadlines, you tell me that your understanding of the problem is very different than mine.

  2. gabe says

    Nobody.really again confuses the intent of the founders to provide equality of opportunity with equality of condition – a rather substantial difference that he misses.
    All of the items he mentions may be said to provide aids to equalizing opportunity access points – not actual equal results.
    This is the essential difference between Proggies and Classical Liberals.
    The Proggie, because he (Oops, perhaps I should say “she” as I do not want to be accused of sexism) believes that he is expert, and that sufficient knowledge exists to define and correct all problems, feels entitled to manage all aspects of human activity and is therefore able to “equalize” conditions for all of God’s little children.
    This is arrogance of the first order. Consequently, when, as is wont to happen, things do not go as planned, the Proggie feels compelled to make mid-course corrections. Of course, there is nothing inherently wrong about making corrections; however, one is, at least theoretically required to do so within the boundaries of defined law. Unfortunately, the hubris of the Progressive places him beyond such limitations – he is in fact entitled to make his plan work owing to the strength of his vision and moral superiority.
    Seems to have worked out pretty well hasn’t it!
    The Classic Liberal understands that human knowledge is limited – so too should be human striving in the pursuit of perfection. He also recognizes that this is not the City of God in which he resides and that such an option is not open to him. Consequently, the Classic Liberal is somewhat more willing to recognize the distinct (and yes boundless and beautiful) differences within the human species in terms of talents, drive, intelligence, etc and let that cornucopia of human experience and hopes work itself as best it can.
    If only we were all as “smart” as the Proggies – just think we could make it to the moon. Oops, we already did that under a system of Classic Liberalism – how the heck did that happen, I wonder.

    take care
    as always
    gabe

    • nobody.really says

      If only we were all as “smart” as the Proggies – just think we could make it to the moon. Oops, we already did that under a system of Classic Liberalism….

      We made it to the moon in 1969 — with a top marginal tax rate of 70%, down from 92%. If that’s Classical Liberalism, so be it.

      • gabe says

        Well, hell’s bells!
        Let’s just jack it right back up to 90% in order to make you happy.

        As i have said before anytime you are ready to open your wallet for this ole pensioner, I am prepared to accept – of course, you may have to be on the lookout for a lawsuit if at any time you decide to infringe upon my “right” to these payments by lowering them or not having them keep up with the cost of inflation.

  3. R Richard Schweitzer says

    “Progressivism at its base is about enforcing a pattern of equality, necessitating redistribution and social engineering.”

    That may be an overly narrow and possibly misleading perception of the socio-economic philosophy that has come to be identified as the Progressive Movement.

    That philosophy (ideology?) “at its base,” is concerned that objectives should be determined for the order of society. That in turn requires determining the means for attaining those objectives, as well as determining the objectives for relationships within society.

    The need for those determinations gives rise to the issues of who shall make them, how they shall be made, and what factors shall shape them.

    In the case of the United States, this has created periodic efforts at “Government by Objectives,” rather than the constitutional government which provides facilities for mitigation of the conflicts of individual and group objectives.

    Of course, “equality” may be *an* objective of the Progressive Movement; but to what end? One possible answer is the elimination of conflicts of individual and group objectives; by replacing them with “Progressive” determinations of objectives for the society and the relationships within it.

    Because the constitutional delineations of the mechanisms of the government of United States limit the available facilitation of the objectives of the Progressive Movement, we have experienced the establishment of a separate and distinct Administrative State, created by devolutions of congressional sovereignty in attempts to attain certain of those objectives.

    Markets, as instrumentalities of exchange, are facilities for the exercise of individual and group objectives. Intervention in the processes of markets for other objectives, however determined, moderate and sometimes pervert those individual and group objectives. The interventions occur by reason of external determinations of objectives.

  4. gabe says

    “The interventions occur by reason of external determinations of objectives.”

    Quite right! thus the issue is; who shall determine the objectives and to what extent shall interventions be made. I think that is it in a nutshell.

  5. says

    Another factor, Gentlemen:
    Has anyone noticed that not one “proggie” has ever “cited (a) a constitutional (enumerated) ‘authorization’ for judicial ‘REVISION’ of the Constitution”, for their progressive agenda. By abridgement and usurpation of the Constitution — the federal justice’s go about their ideological ‘revision’ constructions.
    Respectfully, John

    • gabe says

      Richard:
      Can you expand? I know Woodie espoused such changes and in his literature advanced his reasoning for doing so but i do not know (my ignorance here!) when or where he would have cited some authoritative constitutional grant for such judicial revisionism.

      take care
      gabe

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