Progressivism Is a Long-Term Threat to the Rule of Law

Many people are concerned about Donald Trump’s commitment to the rule of law, a concern I share. But the other choice in this election is a Progressive one, and Progressivism by its nature lacks that commitment. Moreover, its history shows that it permanently damages the constitutional foundations of the United States. And the United States suffers from the fevers of progressivism more than any time since the 1960s.  Thus, this election pits a candidate lawless by virtue of temperament against one lawless by virtue of ideology and emboldened by the spirit of the times.  The rule of law is under threat, whoever wins.

Progressivism has proved a greater long-term danger than any single individual, because it is born in part out of systematic rather than personal hostility to the Constitution. Federalism and separation of powers are obstacles to the social engineering at the heart of progressivism, and thus progressivism has tried to eviscerate these restraints. Packed with FDR appointees in the 1930s, the Supreme Court gutted the enumerated powers. The administrative state has eroded the separation of powers, making the executive ever more powerful in domestic affairs. The theory used to justify these departures from the original constitution, living constitutionalism, is itself a threat to the rule of law, because it devalues the formal rules laid down by the Constitution.

And today we see all across a society a renewed progressive disdain for the rule of law. President Obama has acted lawlessly again and again to advance its signature program of social engineering– Obamacare.  Take two recent examples. In response to a complaint by the House of Representatives, a federal judge stated  that the President was funding Obamacare insurers without an appropriation from Congress. While there are serious arguments that the House lacks standing to bring this suit, there are no plausible defenses of the substantive merits of the spending. Obama’s administration was flouting the law in hope that there would be no remedy.  His administration also by regulation purported “to amend” the Affordable Care Act to eliminate fixed indemnity insurance as an option to satisfy the obligation to purchase insurance coverage. The District of Columbia Circuit recently held that the administration had no authority to go against the plain language of the statute which specifically permitted these plans.  To be sure, most Presidents have on occasion tried to exploit gray areas of the law. But these actions are plain violations.  The only real defense is a familiar progressive one: the end justifies the means.

That argument is made more explicitly in others instances where Progressives celebrate law and norm breaking. Justice Ginsburg criticized Donald Trump in violation of long standing norms of judicial conduct. Some of her supporters justified this action on emergency grounds: Donald Trump is a danger to the republic and must be stopped.  The difficulty with this argument is that an emergency is almost always present for Progressives. That is how many justified flouting the Constitution during the New Deal, as when the Court ignored the clear language of the Contract Clause in Home Building and Loan Association v. Blaisdell.

The Democrats recently shut down the operation of the House of Representatives because the majority would not bring up a bill they wanted to enact. Of course, the House majority enjoys the right to decline to bring up legislation, and when in power the Democrats have exercised that right many times. But once again the end justified the lawless means. And the end here is hardly momentous—a slight revision of gun laws that would have marginal effect even on the Democrat’s own premises.

No one should be sanguine about Donald Trump’s commitment to the rule of law. But we know that the progressivism has no such commitment. And, unfortunately, progressivism will remain long after Donald Trump is retired from public life.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor 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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  1. XianLSE says

    Nicely said. No one should be sanguine about ANY politician’s commitment to the rule of law. Donald Trump is hardly a unique threat in that respect, as you point out here. In fact, he may present an opportunity. As others have argued, Trump figures to be the most scrutinized and “watchdog-ed” president in recent history. Do you think John Roberts would tie himself into knots to find a signature Trump policy constitutional like he did with Obamacare? Will the FBI director destroy his credibility to allow one of Trump’s appointees to skate on law-breaking? Will the media ignore Trump’s IRS targeting political enemies? Not on your life! When you contrast how Washington will react to Trump with the continuation of the enabling “coverage” Hillary Clinton will receive, it’s plain to me that if a voter cares about re-establishing accountability in our government he or she has to vote for Trump.

  2. nobody.really says

    McGinnis has a fair point–but what a curious one.

    Yup, Progressives value some things over the rule of law. And yup, that’s dangerous. But so is an uncritical embrace of the powers that be.

    In contrast, Conservatives have tended to favor the rule of law, because they have generally controlled the levers of power and could get any outcome they like–“legally.” Thus, it is those naughty Black Lives Matter progressives that block the streets with their unlawful protests. It’s those nice, orderly police officers that gun them down in statistically unjustifiable numbers–while almost never face any legal consequence. Such is the law that McGinnis praises.

    So here we are, on the site of the Library of Liberty and the Law: McGinnis, praising the power of the state and condemning those rebellious Progressives. True, Progressives are unstable allies of the Constitution. But if McGinnis had been counseling Congress in 1776 instead of the Progressives, we wouldn’t have a Constitution in the first place.

  3. Bstein says

    The points that Prof. McGinnis raises here are made in great detail by Prof. Thomas Sowell in his book, A Conflict of Visions. Progressives have the unconstrained vision and see the ills of the world as problems with solvable concrete solutions that institutions can solve. Others have the constrained vision, which looks at the world as a constant trade off among values and therefore looks to evidence rather than intentions and respects rule of law and evolved social technology like markets.

    Personally i think it’s simpler still. Some people believe in a priori government and others in government informed by a posteriori evidence. If you believe “the right answer” can be arrived at through pure reason, then why bother with experience, history, federalism or pesky embarrassing notions to hold us back like “rule of law.”

    But Oliver Wendall Holmes told us that law is an a posteriori exercise. If you buy that; that the law must conform itself to the world rather than vice versa… Well I suppose that means you ought to vote against the elite “erudite” (enlightened) social media statists.

  4. says

    Perhaps the best example of this may be the Obergefell decision, which I termed a judicial coup in my blog when the decision was handed down ( ). Using that term was clearly too strong, but only by degrees. It was a classic progressive decision, setting aside the natural law, stare decisis, and any sense of history or nature for an imagined self defined, self centered perfect world of our own making, whether most people agree with that imagined world or not, or whether or not nature supports it in any way.

    • Bstein says

      It is interesting. When I first read the decision I thought how clearly wrong on law and precedent, even judicial philosophy it was. However it struck me as morally unimpeachable.

      The reality is that, though the framers clearly did not intend this, history (first through the civil war and then in Brown v Board) has determined that part of the SCOTUS’s role in our system is to protect disfavored minorities from their state governments (see Caroline Products).

      A major rhetorical defect of modern conservative thought has been the refusal to honestly confront this point. And if you try to argue against this arrangement you find that you are arguing in favor of a Court which permits things to continue which history has determined to be unjust.

      To say “but whose morality? That of the elite on the bench?” is not going to win. That just sounds like a child demanding not to be punished for bullying. If we are to remove the Court from its position as moral referee, we must offer some credible replacement.

      That we haven’t done that is why we will always lose this argument.

      • gabe says

        “That we haven’t done that is why we will always lose this argument.”

        Fair point(s).

        I would suggest some of the writings of Hadley Arkes to gain a sense of what THE Bench can and ought to do. You are correct – bitchin’ about the Black Robes accomplishes little. Yet, if those begowned elites were to simply do their duty (Hamburger) and interpret / construct the Constitution w/o undue influence of their own personal beliefs, we would, perhaps, have no need for a credible replacement.
        In short, the mechanism (Judicial Review) is fine – it is simply the motivations of those who comprise it that is a problem.


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