Chapter 5

 

Constitutionalism in Modern Times – Part One:

Social Problems and Historical Skepticism

 

A large segment of society viewed the Supreme Court as the last holdout for liberty in a failing republic.  But others saw it quite the other way around.  An 1895 issue of The Christian Statesman, a popular magazine on faith and public affairs, featured an alarming rumor about the United States Supreme Court, which seemed to confirm suspicions about its secret distain for democracy: “Our Supreme Court has followed the example of Congress in holding a session on the Lord’s Day,” the paper reported.  This was no light accusation in the nineteenth century: “Sunday closing laws” were quite common, and they were frequently enforced against public and private business in many states.  The rumor, which appeared to have no source, claimed that one Sunday afternoon, “the highest judiciary court of the nation went about its business without any shadow of excuse either on the ground of necessity or of mercy.” The justices had no obligation to respond to such a charge given the gravity of other matters, which, in many instances, were quite important enough to break the Sabbath.  Judicial duty was not exactly laborious anyway: it involved the sort of calm contemplation that even the most pious Americans engaged in on Sunday afternoons.  Still, the accusation was particularly troubling for Justice David Brewer, when his Court received a flurry of letters after the rumor was reprinted in The Congregationalist, his own church’s publication.  He admitted that there was a common tendency in modern life “to make no distinction between Sunday and other days of the week.” But as far as the Supreme Court was concerned, the accusation was “absolutely untrue.”

 

Neither on the Sabbath of April 7, nor on any other Sabbath to my knowledge, certainly not since I have been on the bench, has the Supreme Court, formally or otherwise, ever met for the transaction of business, either hearing of arguments, examination of opinions, conference or other matter.  I mean to make this denial as broad and comprehensive as anything in the statement either in letter or spirit can suggest.[1]
 

Based on other documents from this era, it seems there was more to this critique than concern about the piety of the nation’s highest Court.  Congressmen and state assembly-members could lose their seats for such a disregard for the nation’s religious heritage; but not so the occupants of the judiciary, who were quite immune to popular criticism.  This made their disregard for the Sabbath all the more troubling, because it also meant a disregard for the people and their fundamental institutions.  This, combined with their growing tendency to review many local pieces of legislation under the Fourteenth Amendment, grew suspicion that the Court had taken on a certain elite attitude, which had nothing but scorn for all things democratic.

 

In fact, for many, the mere existence of the judiciary was the strangest of conspiracies, and it only became stranger as the Court reviewed more and more popular pieces of reform legislation.  “The ancient traditions of the United States Supreme Court are peculiar,” one New York Times editorialist wrote a few years before, eager to point out what he thought to be the reappearance of ancient mystery cults.

 

We were wont to consider Minos and Rhadmanthus of the Supreme Bench as belonging to a race of superior beings.  What was said and done in the awful seclusion of the consultation room was impenetrably hidden from common men… Into the arena… walked the Justices in their robes, far removed from the passions and prejudices of mankind; no vulgar reporter, no tattling raconteur could enter.  For generations no human being has been able to tell us what the Justices of the Supreme Court of the United States have said, or thought, about any given subject.  The Justices have been a sort of Delphic oracle multiplied by nine, a Sphinx rolled out into several excellent gentlemen in silk gowns.[2]
 

It was a silly accusation, of course; but it revealed a legitimate worry, partly about the Court, but also about the people, who seemed to be drifting back into the conditions of pre-enlightenment from which it had emerged only a century before.  Democracy required that all things be public, and that nothing be so hidden that the people could not know it clearly and distinctly; so far as that slipped away, American democracy was in great danger.

 

Another critic of the Court observed how its decisions aimed to “impress upon the public’s mind with unusual force the extraordinary powers exercised by that tribunal.” What exactly that force was, the author could not say.  Just as it was in its earliest days, the Court had no way of “enforcing” its rulings; it was designed to merely render judgment on constitutional questions, and to do so only when those questions came to them through the lower courts.  Still, he had no doubt that the American judiciary “determines the constitutional law of the country to a degree and in a sense that is true of no other judicial body in the world.” This criticism was not at all based on any judicial failure to interpret the Constitution correctly, for, as this critic admitted, such a judgment did not belong to the public; ultimately, “the Supreme Court is the final arbiter of what that Constitution requires and intends” – a point that this editorialist granted without question.  To say that the Constitution was superior to Congress would always call for the superiority of the interpretive institution, “rather than the Constitution itself,” he wrote.  True, there was no reason to believe that the current justices “would disregard the clearly-defined limits of legislative power, as laid down in the Constitution.” But the problem was not what the Court did in fact, but what it could do, given the nature of judicial review.  “[I]f it ever should do so its judgment would have to be recognized as decisive,” because the judiciary was, once again, “the final arbiter of constitutional principles,” he wrote – in fact, it is “the oracle that utters the voice of the Constitution.”[3]

 

Public resentment against the judiciary came from an intensely optimistic view of American democracy, which appeared to be far more wise and benevolent than its critics believed.  There were many frightening trends afoot, of course: socialists threatened to use popular reform measures to implement total state control, while Marxists threatened all-out revolution.  But in the minds of most Americans, those were European problems.  There were some domestic radicals, but modern American democracy was far too sensible to succumb to such delusions, and it was quite able to calm them, and create a consensus behind prudent reform measures.  The need for a judicial overseer of popular will and protector of the minority was therefore quite unnecessary; it was only an irrational fear of democracy, while the Court’s own rulings were informed by a suspicion of freedom itself, if not a malicious intent to undermine it.  But far more troubling for many was the mere presence and meaning of the Constitution itself.

 

Many twentieth century scholars have taken these things as signs of the democratic nature of constitutionalism: the Court, they claim, is but a medium between the people and their own fundamental law, meaning that the final interpreters are the people themselves.  Yale law professor Alexander Bickel found his claim to fame in saying that “when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people”; in doing so, it “exercises control, not in behalf of the prevailing majority, but against it.  That, without mystic overtones, is what actually happens.” Perhaps the Court has done great good for society by striking down corrupt legislation; perhaps it has the noblest intentions for the future of American freedom and the dignity of man.  But “nothing in these complexities can alter the essential reality that judicial review is a deviant institution in the American democracy,” Bickel wrote.[4]

 

Worse than the Court’s “counter-majoritarian” tendencies, though, is the willingness of the public to accept that the constitutional interpretation is exclusively a judicial duty, regardless of whether or not the rulings are favorable to certain policy preferences.  The greatest objection to this view in recent years comes from Professor Larry D. Kramer, currently the Dean of Stanford Law School, in his study of “popular constitutionalism” in early America.  Kramer points out that the most important aspect of the Constitution’s design, which the people readily accepted for much of the nineteenth century, was the “institutional and intellectual solutions to preserve popular control over the course of constitutional law – a kind of control we seem to have lost, or surrendered, today.” According to Kramer, the critical thing for the original Constitution was its ability to shape politics in such a way that political life – i.e., the “people themselves,” as it appeared again and again in early political writings on the subject – would do so on its own.  All popular legislation would draw its premises from the Constitution, follow its procedures, and aim at it as their final conclusion.  The Founders realized that there was quite simply no stopping democracy: “popular pressure was the only sure way to bring an unruly authority to heel,” Kramer writes.  The Courts and judges were never very prominent in early America, in large part because they had no inherent power to even command the attention of the people.  “The idea of depending on judges to stop a legislature that abused its power never even occurred to the vast majority of participants,” he writes.[5] The surrender of the people’s sovereignty occurred, according to Kramer, when they allowed the Court become the sole defender of rights in the face of overbearing majorities – and allowed themselves to believe that the Constitution was not theirs after all, but a document best left in the hands of judicial experts.[6]

 

As correct as Kramer might be about the “people’s Constitution” in the early republic, his description of the Lochner Era is much harder to sustain: by his account, it was “a golden age of popular constitutionalism,” a time “rife with popular movements mobilizing support for change by invoking constitutional arguments and traditions that neither depended upon nor recognized – and often denied – imperial judicial authority.”[7] In truth, as I will show in this chapter, popular critics of judicial review in the Lochner Era were not as troubled by the Court, as Kramer claims, nearly so much as the Constitution itself.  The Progressive era was a story of estrangement – a disconnection between the “reason of the people” embodied in the Constitution from the people themselves.  As shown above, there is an abundance of early twentieth-century rhetoric denouncing the Court; but, of course, there is an abundance of praise, calling it the last bastion of liberty, particularly with the passage of the Fourteenth Amendment.  What all agreed on, though, is that the Constitution itself did not belong to the people.  What had once been the people’s own fundamental law was looking more and more like a great mystery, which spoke in riddles and metaphysical oddities, which required a group of sacred interpreters; so far as this duty fell on the Court, it was an elite office indeed.  Given the new anti-constitutional tendencies in both the public and intellectual circles, however, the judicial office was actually little more than an unfortunate messenger.

 

But what caused that separation of the people from their Constitution?  True, the system was broken after the Civil War, as everyone knew.  But why, for so many, was it not worth fixing?  What was it that seemed so much better to the people than their own republic? 

 

I.  Social Realities

 

The conditions of that era were a reasonable cause for despair: the division between the wealthy and the poor had never been greater, nor was it ever based more on what seemed to be a fraudulent social hierarchy.  This created an unprecedented tension in society, whose resolution might very well be a second Civil War.  The nation, and indeed the whole industrialized world, had staked everything on a series of Enlightenment-era ideas, the most prominent being the claim that each individual human being had certain inalienable rights; that the most tangible of these was the right to keep and acquire property; and that government existed to protect that right.  Any other system or way of ordering life was an invitation to tyranny.

 

A.  Liberalism’s Original Promise

 

The idea at the root of the free market, and the liberal government that could sustain it, had done much good for industrial societies.  The belief, which many held with absolute certainty, was that each individual human being had certain inalienable rights; that the most tangible of these was the right to keep and acquire property; and that government existed to protect that right.  As John Locke put it, it was not natural resources, but labor “which puts the greatest part of value upon land, without which it would scarcely be worth any thing.” What was true of land was true of all private estates and companies.  The desire of individuals to get rich, he wrote, is the reason for “greatest part of all its useful products; for all that the straw, bran, bread, of that acre of wheat, is more worth than the product of an acre of as good land, which lies waste, is all the effect of labour,” he wrote.  Nature offers basically “worthless materials, as in themselves.” But the vast number of human hands that transform it create abundant goods at increasing quality and lower prices, and, of course, allow each their own livelihood.  “[A]s different degrees of industry were apt to give men possessions in different proportions,” Locke wrote, “so this invention of money gave them the opportunity to continue and enlarge them.” One could only store up the fruit of labor so far; but in money, it could increase without end.  “Find out something that hath the use and value of money amongst his neighbours,” he wrote, and “you shall see the same man will begin presently to enlarge his possessions.”[8] The greatest promise of the market was that wealth could cease to be zero-sum give and take, because it could instead be created, and offer opportunities to all to improve their conditions.  This view of liberty began by assuming the worst in people.

 

There were, of course, nobler motives, as the prominent Scotch economist Adam Smith later pointed out.  But “it is in vain for him to expect it from their benevolence only,” he wrote.  “He will be more likely to prevail if he can interest their self-love in his favor, and shew then that it is for their own advantage to do for him what he requires of them.” Greed was a base and ugly motive; but for the advocates of liberty, it was the surest foundation for establishing a government or an economic system that could benefit all.  Much like Locke, Smith identified the value of labor as the essential thing, and pointed out that a truly liberal society was one that unleashed that wealth-creating force as far as possible for each individual: it was “the only universal, as well as the only accurate measure of value, or the only standard by which we can compare the values of different commodities from century to century,” he wrote.  Letting labor run its course, and allowing each individual to keep and pursue what he makes through his own labor would be the surest way to overcome mankind’s natural scarcity.  It was, of course, the central principle of liberty.   “All systems either of preference or of restraint, therefore, being thus completely taken away, the obvious and simple system of natural liberty establishes itself of its own accord,” Smith wrote.  “Every man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man, or order of men.” This gave a certain benefit for liberal government as well: its tasks were greatly minimized, and the most essential needs of society were met by the by society’s own commercial power.  Government in such a system is, in fact,

 

completely discharged from a duty, in the attempting to perform which he must always be exposed to innumerable delusions, and for the proper performance of which no human wisdom or knowledge could ever be sufficient; the duty of superintending the industry of private people, and of directing it towards the employments most suitable to the interest of the society.[9]
 

This form of liberalism was nothing new.  For both Locke and Smith, it was simply a matter of returning to the things human beings had always known, but had only recently been realized.  It was a Platonic principle: societies only needed to be reminded, and the productive power of the market would not only grant greater prosperity, but also realize more fully the basic form of justice.

 

This was, needless to say, an assumption that the American Founders held as axiomatic when it came to framing a new government.  The lack of opportunity that dominated the Old World was much on their minds, as indicated by Thomas Jefferson’s famous letter to James Madison in 1875.  Marveling at the vast numbers of poor in France, he asked the famous question: “what could be the reason so many should be permitted to beg who are willing to work, in a country where there is a very considerable proportion of uncultivated lands?” Labor could be unleashed, and abundance created for everyone, if only the political establishment would let it.

 

I am conscious that an equal division of property is impracticable, but the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind.[10]
 

Jefferson was thinking primarily of agriculture, of course, and this proved to be the source of the Founding paradox between he and Alexander Hamilton, who held that the “prosperity of commerce.” It was, without a doubt, “the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares,” Hamilton wrote.

 

By multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness.
 

Much like Adam Smith, the assumption was that it is better to assume the baser impulses in people rather than the nobler ones, and to use those tendencies for the benefit of the common good.  “The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer, – all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils.” It was, once again, the power of labor, and the ability of a liberal system to let most of that labor go to the laborer himself, which ensured the greatest happiness and property – and, above all, the creation of wealth.  “It has been found in various countries that, in proportion as commerce has flourished, land has risen in value.  And how could it have happened otherwise?” The free market was indeed a novel thing in human history, precisely as Locke and Smith understood it.  “It is astonishing that so simple a truth should ever have had an adversary,” Hamilton wrote, thinking of the eons of human history where laborers toiled and the sovereign, under some delusion of divine or royal authority, collected the fruits of that labor.  Those civilizations, though, simply lived under a delusion, or a rejection of the “plainest truths of reason and conviction,” he wrote.[11] The American regime, by contrast, again, would be founded on precisely the truths that human beings had known all along, and it would in large part be the unleashing of industrial energy, which would create unlimited opportunity and great wealth for all.

 

The free market, and the sort of government that was designed to encourage it, was indeed “liberal,” when compared to the far more ancient order of human societies.  It was a perfectly novel turn in human history, and it offered things that no previous civilization had ever experienced.  It was a particular triumph for the common man: the level of opportunity was so great, and the standard of living war far better than ever before, that the free market could be viewed as the single greatest philanthropic movement ever.  All of this came at significant cost, of course: in the old world, the “family represented the land, and land represented the family,” Alexis de Tocqueville wrote.  “It is not that there are no rich in the United States as elsewhere; indeed, I do not know a country where the love of money holds a larger place in the heart of man and where they profess a more profound scorn for the theory of equality of goods,” i.e., the early theories of socialism.  “But fortune turns there with incredible rapidity and experience teaches that it is rare to see two generations collect its favors.”[12] Wealth was a churning and volatile thing, rather than the stagnant hierarchy of previous centuries, when it was aligned with family estate far more than labor.  Labor, though, was now the basis for liberation, and mankind was truly liberated in the United States.

 

Moreover, American ingenuity was a remarkable thing, of the sort the world had never seen before.  By simply opening up the channels of opportunity, the nation produced marvelous inventions.  Some were simply entertaining things like the phonograph; others, though, were the sort of ideas that saved labor – and in some cases, saved lives.  And, most of all, many of these labor-saving and life-enriching devices were placed within reach of even the poorest Americans.  These things placed the United States “far in advance of other nations,” according to Andrew Carnegie – a man who certainly knew what it meant to use science to meet mankind’s most practical needs, particularly in the production of steel.  “No other people have devised so many labor-saving machines and appliances.”[13] Steamboats, steamships, the cotton gin, the mowing reaping and sewing machines – and, more recently, electricity and the earliest development of the telephone – were all wonders of the free market.  Carnegie’s own railroads and skyscrapers were, of course, iconic of what mankind could achieve, and how the market was the single greatest means to that new world.

 

Yet the promise of the old liberalism, which had become so central to American life in practice, was now colliding with the conditions of the working classes.  Those who taught the principles of the free market knew that such a system could witness a variety of new problems.  Adam Smith in particular was sensible enough to know that a free market system would have considerable ups and downs, and that downturns could have a terrible impact on the laboring classes.  The common people could suffer from inflation in the price of basic goods, or face their own unemployment.  The conditions of industrial laborers, and the vast amounts of wealth accumulated at their expense, were actually quite contrary to the principles of the free market.  Both theory and practice taught that it was not at all in the long-term favor of the capitalist class to acquire wealth in such a way.  But Smith was confident that there was always a “natural price” in each thing, and that it was the “central price to which all other commodities are continually gravitating,” he wrote.  “Different accidents may sometimes keep them suspended a good deal above it, and sometimes force them down even somewhat below it.  But whatever may be the obstacles which hinder them from settling in this center of repose and continuance, they are constantly tending toward it.”[14] As true as this might have been, though, it seemed that the market’s ability to correct itself could take a very long time, and that there could even be a deliberate resistance against it among the capitalist classes: a “bad effect of commerce is that it sinks the courage of mankind, and tends to extinguish martial spirit.” The classical problem of commerce still lingered, even in modern people; luxury could corrupt – and if it could rob them of the “martial spirit,” it could most certainly undermine their sense of justice as well, and how it related to the conditions and wages of laborers.  “[H]aving their minds constantly employed on the arts of luxury,” he wrote, “they grow effeminate and dastardly.”[15] Hence, capitalist tycoons could easily bring about their own destruction.  In a republican system, though, the self-correcting, if not totally resetting market could drag on for many years.  But until the market corrected itself, and until industrialists admitted the possibility of their own ruling, laborers suffered.

 

B.  The Old Liberalism and the New Labor

 

The most disturbing thing about the conditions of labor was, of course, the sheer poverty that accompanied it.  The “urban poor” would have been an oxymoron for Locke or Smith; but the conditions were there, and they were quite real, and growing desperate.  It was one thing to have poverty due to popular moral failings of citizens or the corruption of governments; but it was quite another thing to have all of the necessary conditions for vast creations of wealth and opportunity and still find so many laborers living in such desperate conditions.  “We have constant calls for the relief of suffering and distress,” one editorialist in the New York Evangelist wrote in 1880.  “Many will say that charity begins at home, and so excuse themselves from any attempt to relieve [sic] suffering which is far off.  What they do not see with their own eyes, and hear with their own ears, is as if it did not exist.”[16] The ordinary American response was, of course, to focus on the condition with great intensity, bordering on obsession over the suffering of others.  “The fact is, that of the iron grip of poverty, people in general, by no means excepting those who have written about it, have had very little experience,” the popular English novelist James Payn wrote; “whereas of the pinch of it a good many people know something.” It took novelist’s descriptive abilities to bring the “pinch of poverty,” as he called it, before everyone else’s mind.[17] American readers faced many long and painful images of the plight of urban families and children struggling to survive through long hours in factories, and then finding ways to live on meager rations.  The need for such “relief” appeared again and again.  Yet the public’s ability to find clear, tangible, workable solutions were often sparse in the popular discourse.

 

Blame came easily, and it was usually found precisely where the critic chose to place it.  There were, on the one hand, those who found easy and self-satisfying solutions to the plight of workers.  In defense of capital, the popular columnist Howard Crosby argued that “poverty is never caused by wealth.” Poverty itself was no doubt an oppressive thing.  But “[t]his oppression is not making men poor nor increasing poverty, but only treating the poor unjustly – a bad thing, but not the bad thing that is alleged,” he wrote.  Still, because of the delusion, “many have kicked up their antics of late, this whole question being woefully confused, and crude philosophers have rushed upon the stage from all quarters, bellowing out their nonsense, to the applause of all those primitive minds that delight in noise.” In truth, Crosby wrote, “it is not the fact of poverty that troubles these people, but sheer envy.  They are vexed in soul that they are not themselves millionaires.”[18] This itself was only a small part of a much broader moral depravity among the laboring poor – a lack of frugality and dignity in work, the unwillingness to seek a better education, drunkenness and debauchery, and a constant tendency to blame someone else.  The blame, though, also went in the opposite direction.  “The primal causes of poverty lie at the very base of our social system, and cannot be rooted out without radical change in the system itself.  They are organic – sanctioned by custom, sustained by the church, enforced by law, and interwoven with the very fabric of society.” What was it at the root of poverty, not to mention “the main cause of crime,” and “degradation through the world”?  It was none other than business monopolies – “the usurpation by the few of that which by right belongs to all,” one anarchist wrote.[19] Anarchism was rare, of course, but the sort of anger against the system was common throughout the laboring classes, who were easily convinced, especially in moments of great passion, that destruction really was the only alternative.

 

Even the most vehement critics of labor unrest could not deny that the old liberalism had been stretched to its limit – or perhaps beyond their limit – by the conditions of modern industry.  The old liberalism, it seemed, carried with it its own destruction.  It was a system that, on one hand, would create a vast new kind of wealth and means of production, while at the same time, it was doomed to not keep up with it.  Damaged most of all were, of course, the industrial workers, who had become terribly alienated from the fruit of their own labor.  General Nelson A. Miles of the U.S. Army, who was frequently on call to respond to a potential threat to national security from labor uprisings, understood well enough that “the condition of the laborer has changed entirely” since the time of the Founding.  Liberalism proved quite unable to adapt to modern circumstances, at least not with the same ease that Smith believed it could.  The Western frontier and the endless amount of fertile land had allowed labor enough opportunity to dissuade it from the sorts of frustrations that now shook the modern world.  What industry there was occurred in the few urban centers, and had sufficient demand to keep a perfect level of fairness in wages and hours.  “All this is now changed,” he wrote.  “For the last few decades the tendency has been to the congregation of the people in large cities and towns; and a feeling of discontent, unrest, and disaffection has become almost universal.” Most troubling of all, “[t]he employer has too little confidence in his employee, too little consideration and sympathy for his condition, and too little interest in his welfare; while, on the other hand, the employee had a feeling of hostility and prejudice, in many instances amounting to almost actual hatred of his employer.”[20] General Miles spoke as a Civil War veteran, who knew first hand how this kind of disparity could work itself out.  Should the occasion arise, he made it clear that he would indeed lead his army in putting down yet another domestic insurrection; but he hoped that the public would understand the nature of the crisis first.

 

After a serious of sporadic labor uprisings by disorganized unions, which did not achieve their long-term goals, urban labor interests found their best organizer in Samuel Gompers, who led the American Federation of Labor, founded in 1886.  “It is now almost unanimously acknowledged that employees have the right to strike,” Gompers wrote, “and having the right to strike, they have the right to use all constitutional means to make the strike successful.” Striking and negotiating with management was never a matter of angry protest for him, much less was it a matter of revolution or remaking society: far more important was the old Lockean principle of labor as the determining source of value in both goods and wages. “As a strike the withholding of labor for a better condition of the market, it must be conceded that the laborer had the right to fix the price and conditions upon which he will put his labor into the market,” he wrote.  Gompers also recognized that such a right to receive the fruit of one’s labor was a constitutional thing in the American system: “Having the inalienable right to organize for mutual protection and benefit, they have the right to use all the rights, customs, privileges and immunities of organized bodies.”[21] Whatever venture Gompers set out on would eventually find fulfillment; it was a common standard of fairness he hoped to achieve, rather than a total upheaval.  This set the AFL quite apart from domestic socialists, since it proceeded with great respect for American capitalism, and saw itself as an institution that could correct errors and recover an order that could benefit workers and management alike.  Under Gompers’ organization, it seemed “the army of labor is willing to submit to discipline and conduct its campaign as a united force, fighting one battle at a time,” the Christian Union reported in 1890.  But, of course, “if the strike fever turns the army into a mob, defeat is almost inevitable.”[22]

 

That was what eventually happened again and again, beginning with the Homestead Strike of 1892.  The incident showed that the AFL and similar unions, while respectable in principle, did not necessarily have control over their members.  The views of laborers themselves, it seemed, were evolving quite on their own: the point of a strike did not necessarily have a fixed end after all, nor was such an undertaking aimed at recovering a basic standard of fairness.  Steel workers in Andrew Carnegie’s own company hub in Pennsylvania went on strike over wage disputes, and then clashed with the company’s security forces when they tried to escort scabs into the factory.  The situation grew so intense that the state militia was finally called in to restore order.  Responses were varied, and many tried to apply classic maxims to resolve the situation.  “This is and should be a country where law and order, and the rights of property are just as sacred as the rights of labor,” one editorialist in the Burlington Hawkeye reported.  “Without respect for the one there can be no safety for the other; there can be no two sets of law, one or labor, and the other for capital.”[23] Similarly, another editorialist claimed in the Independent that “[t]here is no question of wages in the deeds of Pittsburg: no question of workmen’s rights in the acts of Homestead.  It is a question simply of crime.” More importantly, though, was the general tendency of labor.  “It is from the ranks of labor that these acts of violence have proceeded.  Labor had denounced the horrible affairs at Pittsburg, but not with unanimity, not always with the abhorrence which such a cowardly deed, done in its name, should excite.  Labor will not win battles while it countenances a policy of violence.”[24]

 

No one, of course, was more shocked than Carnegie himself, and he reflected on the Homestead strike extensively in his autobiography.  He believed he had been quite good to them, as any owner of such a massive company should.  “For twenty-six years I had been actively in charge of the relations between ourselves and our men, and it was the pride of my life to think how delightfully satisfactory these had been and were.” they had far better working conditions, largely because of his own inventions. “The work of the men would not have been much harder than it had been hitherto, as the improved machinery did the work,” he wrote, thinking once again of the marvelous labor-saving devices that inventors like himself had offered the public.  “This was not only fair and liberal,” he wrote; “it was generous, and under ordinary circumstances would have been accepted by the men with thanks.” Above all, he believed that he had offered them the best wages and hours possible: it was a policy of “patiently waiting reasoning with them and showing them that their demands were unfair; but never attempting to employ new men in their places – never.”[25] Perhaps it was entrepreneurial common sense, or perhaps it was blind obstinacy; but either way, Carnegie’s view revealed the position of capital that simply would not budge in the face of popular pressure, both for its own sake, and for the sake of industry itself.  For all their good intentions, those sharing Carnegie’s outlook were quite blind to the plight of workers, it seemed, and no amount of concessions and accommodations, much less brilliant labor-saving intentions, could solve the problem.

 

This became even clearer during the Pullman Strikes in 1894 – this time a nation-wide strike among railroad workers by employees of the Pullman Palace Car Company.  Strikes began in Chicago’s manufacturing center in response to a massive company pay-cut; it quickly spread to all urban railroad centers, resulting in sporadic violence and fatalities, and ending only when Grover Cleveland dispatched federal troops to restore order, often in pitched battles with strikers.[26] This, of course, had a direct and frightening impact on the public: “why should this matter turn the whole world upside down?” the Maine Farmer asked.  While the Homestead strikers simply walked out of the steel mill, and only engaged in brief violence with the company’s security forces, Pullman strikers “burned trains of cars and destroyed their contents,” the paper reported, thus halting railroad service nation wide, and placing it “in the hands of a murderous mob.” “Engineers and firemen have been gagged and thrown from their locomotives, and various acts of violence resorted to, in order to carry out their wild schemes.”[27] Samuel Gompers was at a loss trying to explain what happened.  He sought to remind the American people that the whole point of unions was, again, to organize in such a way that workers could have some leverage over capital in an effort to achieve an original sense of fairness and decency in their wages an hours.  “I can scarcely bring myself to the belief that the [American Railway Union] imagined that the movement would be as extended as it became into, nor that it would last as long as it did,” he wrote.  In truth, “[t]he reform elements in our country seem to have unconsciously created their own Frankenstein, the breath of life being injected into it by plutocracy in the shape of ill-gotten gains.” Contrary to the violent uprising, though, Gompers was certain that American unions could still achieve their ends in a positive way.  “We insist upon the right to organize,” he wrote, and “to protect ourselves, our homes, and our liberties, and work out our emancipation.  We are confident we shall secure them, and that the world will stand surprised that they were accomplished through the means of an enlightened public opinion and by peaceful means.”[28] The Pullman Strikes were a mere anomaly – or so he hoped.

 

But this was plainly a different sort of strike, and it revealed the possibility of a complete overturning of the existing social and political order, which might eventually become unstoppable, even for the power of the federal government.  The most troubling thing, though, was the total lack of a clear goal in the strikes; there was no sense of justice in view, but simply a mixture of anger, and the belief that vengeance would set things right, since there was no pre-existing purpose to achieve.  Americans could understand that sort of outrage if things were, in fact, unfair.  “We make no objection to the peaceable strike of the Pullman employees,” one editorialist in The Independent wrote.  “They had a right to leave their work when they pleased.” But, conversely, “it is a terrible feature of this strike that the whole body of men engaged in it seems to have been determined to secure the purpose of their strike not by peaceable but by violent means.”[29] It was the violence that many felt necessary for a new order, confident as they were that the old one was a complete failure framed in the days before class consciousness, much less railroad tycoons.  The system needed to be destroyed in order to introduce a whole new order.

 

The leader of the uprising was Eugene V. Debs.  Debs had worked for the railroads himself, and had climbed his way up through the ranks of the American Railway Union, certain from the beginning that the solution to the labor problem would take something far more radical than any union’s current tactics.  Union strikes could bring short-term solutions by constantly appealing to standards of fairness and justice; but those victories would always recede, and lead workers back to exploitation again and again.  Placing these labor disputes in the context of world history, Debs believed that “the work of evolution and revolution has so far progressed as to inspire hope of some sort of millennium in the not distant future.”[30] The need for such a radical leap was quite obvious, given the brutal conditions of labor and capital, and the blindness of people like Carnegie, among several others, to the plight of their own workers.  It was a step in history that seemed to justify anything – even the sort of violence that broke out in the Pullman Strikes, and finally the principle of socialism he adopted after being released from prison in 1895.  “It is said that the American people like ‘fair play,’” he wrote, but when “those who are the victims of injustice” complain or even resist their condition, “they are denounced as ‘anarchists,’ enemies of capital, blatant agitators, breeders of riots and sedition, conspirators, criminals, who should be fined and imprisoned for the public good.”[31] It was this revolutionary outlook that Debs took with him in later years as a presidential candidate for the Democratic Socialist Party – running an election within a government which he had absolutely no faith in for its own sake.  His intention was, of course, to destroy the system from the inside.  Indeed, Debs was sure to distance himself and his followers from the likes of Samuel Gompers for their constant appeals to market-based ideas of fairness.  “The American Federation of Labor, as an organization, with its Civic federation, to determine its attitude and control its course, is deadly hostile to the Socialist party and to any and every revolutionary movement of the working class,” he wrote.  “To kowtow to this organization and to join hands with its leaders to secure political favors can only result in compromising our principles and bringing disaster to the party.”[32] For all its efforts, the AFL was enslaved to the very ideology it sought to correct from Debs point of view.  All of this made Debs, if nothing else, an extraordinary rabble-rouser – a man whose ideas were not compelling at all, but whose leadership and rhetoric could instill the masses with dangerous delusions, and incite them to great violence.  This was, in part, because of the inability of American labor movements to organize into a partly like the one in England.  “On the other hand,” Paul Johnson wrote, “even respectable labor unions in the United States failed to escape entirely from the stigma of violence created by the many militant unions which nonetheless flourished alongside them.”[33]

 

Adam Smith saw the potential problems well enough: in all labor disputes over wages or hours, “masters can hold out much longer,” he observed.  “A landlord, a farmer, a master manufacturer, a merchant, though they did not employ a single workman, could generally live a year or two upon the stocks which they have already acquired.” In contrast, “[m]any workmen could not subsist a week, few could subsist a month, and scarce any a year without employment.” The agreement between employers and employees must always realize the “natural prices” involved, or else both are destined to suffer.  Such violations are everywhere a most unpopular action,” he wrote, “and a sort of reproach to a master among his neighbours and equals.” Consumers really do make judgments about the labor that goes into their goods, and a company with shady business practices is sure to lose them.  Hence, most of the arrangements to lower wages in some way are done in “the utmost silence and secrecy”; but once they are public, the employer is sure to suffer for his misdeeds.  Indeed, the Adam Smith, the single greatest philosophy of capitalism, sanctioned strikes: “In order to bring the point to a speedy decision,” he wrote, “they have always recourse to the loudest clamour, and sometimes to the most shocking violence and outrage.  They are desperate, and act with the folly and extravagance of desperate men, who must either starve, or frighten their masters into an immediate compliance with their demands.” A contract is a contract; anything that forces one party into a situation which he did not originally choose is quite simply a perversion of that obligation.  But this was not just a matter of precepts; the practical consequences of violating that contract were also obvious.  All employers must know “that, in order to bring up a family, the labour of the husband and wife together must, even in the lowest species of common labour, be able to earn something more than what is precisely necessary for their own maintenance.”[34] Any employer who failed to realize this, which he may gain massive amounts of wealth in a very short time, nonetheless faced his own doom; a decline in the numbers of family members, from even the greediest point of view, ultimately means less human capital.  It is therefore in the greatest interest of the capitalist to allow the excess capital to be shared among all, in the form of higher wages.

 

Hence, by Smith’s own principles, he fact that the capitalist class would continue with such short-sighted schemes – in a “get rich quick” plan that would come at horrific human cost – did not indicate anything about the nature of capitalism itself.  By Smith’s principles, it indicated instead a tremendous moral failing among the wealthier business classes – a refusal to let the free market work its own wonders for the sake of their own vast amounts, which were themselves very insecure.[35] Still, many critics ignored this aspect of capitalism to live up to its own basic principles, and concluded that it was flawed through and through, and demanding a complete overhaul of the social order.  “The problem is how to accomplish these very righteous ends without inflicting too much incidental suffering,” social gospel icon Walter Rauschenbusch later observed.  “Some suffering there is bound to be.  It is humanly impossible to straighten a crippled limb without pain.” But that transition, which would certainly be achieved, was itself minor thing compared to “the far greater suffering that is now inflicted every day and hour by the continuance of ancient wrongs, and the still vaster suffering that will grow out of our sins if we fail now to right them.  For the wages of sin is death and humanity is so closely bound together that the innocent must weep and die for the sins the dead have done.”[36]

 

C.  Social Science Explains

 

The intensity of class antagonism drew much attention from researchers in the new social sciences.  There were explanations for poverty and the condition of the working class, as well as the meaning of wealth and social privilege, which had very little to do with the conventional explanations of eighteenth century political economists.  Henry George, for instance, in his highly influential work, Progress and Poverty, pointed out that industrial societies did not rise up out of a primitive state, as conventional Lockean theory believed.  The old notion was, of course, that poverty is the starting point for all human societies, and that the free market under a liberal government was the surest way out.  “If man in the state of nature be so free,” Locke asked, “why will he part with his freedom?” The answer: people sought “mutual preservation of their lives, liberties and estates, which I call by the general name, property.”[37] But this, according to George, was quite incorrect: industrial societies did not emerge out of primitive, poverty-stricken conditions; advanced civilization occurred because of the depths of poverty in which many of its members lived.  Notions about the free market, even in its advanced stage of capitalism, “have sunk so deeply into the popular mind, as radically to change the currents of thought to recast creeds and displace the most fundamental conceptions,” George wrote.  “Now, however, we are coming into collision with facts which there can be no mistaking.  From all parts of the civilized world come complaints of industrial depression; of labor condemned to involuntary idleness; of capital massed and wasting of pecuniary distress among business men; of want and suffering and anxiety among the working classes.”[38] The current doctrine of wealth-creation, however real it might have been in the early part of the industrial era, could not even fully explain, let alone solve, the problem of poverty in modern America.

 

The inequality of classes persisted because of the delusion about what liberty actually was.  Had people seen capitalism for what it truly was in its earliest days, they never would have chosen it – nor would they have ever ratified a government that was so designed to protect it, as the American Constitution did.  Capitalism succeeded because it was “eminently soothing and reassuring,” George wrote; it convinced many that they were fleeing poverty, when in fact it was creating a whole new system of oppression.  Those who benefited unfairly from it did not succeed by conquest and dominance, as it was in previous centuries; it was instead their ability to “dominate thought,” he wrote.  “At a time when old supports were falling away, it came to the rescue of the special privileges by which a few monopolize so much of the good things of this world, proclaiming a natural cause for the want and misery which, if attributed to political institutions, must condemn every government under which they exist.” But it was obvious that such a delusion could not last forever, especially with the growth of the popular democratic sense in the people.  George wrote that “the condition of the masses in every civilized country is, or is tending to become, that of virtual slavery under the forms of freedom.”  In fact, of all the different kinds of slavery, “this is the most cruel and relentless.  For the laborer is robed of the produce of his labor and compelled to toil for a mere subsistence; but his taskmasters, instead of human beings, assume the form of imperious necessities.”[39] The consequences of such a prolonged condition as this would most certainly lead to some form of catastrophe.  Industrial society had gone down the wrong road, and it had traveled too far to ever turn back.

 

For most social observes trying to explain the nature of wealth and poverty, George certainly had the right idea.  But for Thorstein Veblen, a professor of sociology at Yale University, the causes of these things were much deeper, and scrutiny of them required a more critical eye than the standard perceptions of wealth and poverty.  Unlike George, Veblen did not see capitalism as the emergence from the serene state of primitive society.  Those societies were, in fact, brutal and hierarchical – and with capitalism, the institutions and practices that perpetuated the dominance of one class over another were simply carried on in a different form.  Seeing them, though, demanded far more than mere economic explanations: dress, architecture, music, everyday utensils, tools, habits of speech, writing, thought, worship, and education, and the subtle signals of tastes and preferences – these were the true explanations of social reality.  They were, in fact, recurring barbarian customs, merely polished up and repackaged for democratic times.  Anyone who refused to look deeply enough to see this was simply as blind as everyone else.[40] For Veblen, all of these aspects of the “leisure class” taught that the system of oppression was as strong as ever.  “The development of these institutions is the development of society,” he wrote.  “The institutions are, in substance, prevalent habits of thought with respect to particular relations and particular functions of the individual and of the community.” Formal institutions were the mere surface of the real ones, which were not economic or political, but social and cultural.  They all create “a prevalent spiritual attitude or a prevalent theory of life.”[41]

 

The most important “attitude” in modern America was, according to Veblen, the cult of the “leisure class.” It was more than “the rich”: it was the class that created the perceived purpose of human life, even among the laboring masses who could never fully partake of it.  The market may very well produce all sorts of wonders, and it could put them within grasp of the laboring classes; but this would further blind them to their condition.  In truth, the leisure class “acts to make the lower classes conservative by withdrawing from them as much as it may of the means of sustenance, and so reducing their consumption, and consequently their available energy to such a point as to make them incapable of the effort required for the learning and adoption of new habits of thought,” Veblen wrote; such conservatism, or such acceptance that the current practices and conditions are as good as the people will get, “is a serious obstacle to any innovation.”[42] Hence, while social hierarchy of the past was based on power, the capitalist version was based on fraud.

 

Plainly constitutional government was complicit in that fraud.  So far as its goal was the protection of the free market, it was the greatest tool of the leisure class – the supreme aristocracy in disguise.  Government was merely one of four things that perpetuated that supremacy according to Veblen, the other three being war, sports, and religion.  “At this as at any other cultural stage, government and war are, at least in part, carried on for the pecuniary gain of those who engage them,” he wrote.  All of the good administration, separation of powers, checks and balances, executive energy, the means of republican government, or the protection of life, liberty and property – all of these things amounted to nothing more than “gain obtained by the honorable method of seizure and conversion.” Government, like the other marks of leisured nobility, was “of the nature of predatory, not productive, employment,” he wrote.[43] Hence, taking away the layers, and looking at political economy through the new and enlightened lens of sociology, one could find that the basic distinctions between regimes, which had been so essential to political understanding in the West, was collapsed into the same tyrannical oligarchy.  It had not gone away, but simply found ways to adapt to modern times by dressing itself up in the guise democratic legitimacy.  The “overbearing manner of government,” he wrote, “has been greatly softened through the milder manners and the soberer habits of life that characterise those cultural phases which lie between the early predatory stage and the present.”[44] Though it appeared as “natural rights” or neutrality, republican government under the Constitution’s design was just as “predatory” as everything else.  Should the people finally see this, and learn to group it together with the general fraud of the leisure class and their culture, then it would make the Constitution a much easier thing to abandon.

 

II.  American Optimism and Alternatives to the Constitution

 

In the whole canon of world literature, there is only one novel we might call a futurist-economic-love-story: Looking Backward, by Edward Bellamy, published in 1888.  It was certainly a novel made to sell, since it appealed to all levels of popular interest – a mixture of intimate experience with broad social and economic theory.  Here, young Julian West, a wealthy member of New England’s high society, sleepless at the prospect of class-warfare, falls into a deep hypnotic trance; he wakes up in the year 2000, where he discovers the whole world has been transformed into a pristine paradise – still industrial, but administered to perfection.  Bellamy’s utopia was the final outcome of American-style socialism, which received a name that would resonate through American public discourse for the next few decades: “Nationalism.” Rather than the socialism of Eugene Debs and other radicals, Nationalism was the peaceful public construction of order along the lines of national sovereignty, rather than global revolution.

 

Many of his readers formed “Nationalist Clubs” across the country, intent on making the novel a reality in the United States.  This was, no doubt, because of Bellamy’s realistic imagery, and the simple path that led to it, all of which presented a tangible alternative to what many “desponding observers” thought would be an “an impending social cataclysm” in the next century.  “Humanity, they argued, having climbed to the top round of the ladder of civilization, was about to take a header into chaos, after which it would doubtless pick itself up, turn round, and begin to climb again.” It was a hopeless cycle, which all previous civilizations experienced.  It seemed quite likely that one of those cycles was nearly complete in the modern industrial world.  It created wonders greater than the pyramids and constitutions greater than the Law of Moses or the Code Hammurabi.  But it carried with it its own destruction, risking everything for the sake of a few Enlightenment ideas, and creating the conditions that would eventually lead to class-warfare.  Indeed, many accepted that “[t]he idea of indefinite progress in a right line was a chimera of the imagination, with no analog in nature.”[45] The noblest and most effective reform measures – liberal government, the free market, even religious reforms – were only attempts to delay the inevitable.

 

But none of this was necessary according to Bellamy, since Americans had discovered an unprecedented new way of knowing and reforming themselves in Darwinian Evolution.

 

A.  Social Darwinisms in Conflict

 

In social terms, evolution reveled just how changeable things were; it provided a way of escaping what was thought to be a fixed human condition, determined by the economic, political and social facts of human nature.[46] It was, according to Dr. Leete (Juilan’s host, and the author’s mouthpiece) a matter of finally recognizing that we can participate in our own evolution, break the horrific cycles of history, and bring the human story to a happy end.  Economically, this came through the “’final consolidation of the entire capital of the nation,’” according to Dr. Leete.  “’The industry and commerce of the country, ceasing to be conducted by a set of irresponsible corporations and syndicates of private persons at their caprice and for their profit, were entrusted with a single syndicate representing the whole people, to be conducted in the common interest for the common profit.’” The massive growth of monopolies led to one final consolidation of all industry into the state, and all its capital into the vast public fund, which was distributed equally among all – on “credit cards.” All it took was the maximization of nobler human capacities, which all previous generations assumed were either too weak or simply non-existent.  “’The courser motives, which no longer move us, have been replaced by higher motives wholly unknown to the mere wage earners of your age,’” according to Dr. Leete.  By far the coarsest motive, mankind’s militaristic impulse, was transformed into something far more beneficial than war: “’as you used to supplement the motives of patriotism with the love of glory, in order to stimulate the valor of your soldiers, so do we,’” i.e., as an industrial army of highly trained young recruits, whose raging thymos was channeled into the factories.  Bellamy’s work was rich in futuristic technology, but it always came with a certain symbolism: “in the nineteenth century, when it rained, the people of Boston put up three hundred thousand umbrellas over many heads, and in the twentieth century they put up one umbrella over all the heads,” i.e., one huge umbrella, covering the whole city.[47] The whole served the individual, and the individual served the whole.  Clean, simple, full of labor-saving and sophisticated planning and distribution of public luxuries, it was, no doubt, a hopelessly alluring image for many Americans of the late nineteenth century.  Indeed, more than overcoming the frightening realities of class-struggle, it was the image of perfect progress – of mankind finally becoming content in the world.[48]

 

This was the sort of idea that prompted the work of another Darwinist, William Graham Sumner, long-time professor of social science at Yale University.  Sumner maintained a simple truth in his book, What the Social Classes Owe to Each Other, first published in 1883: government involvement in private business would always lead to disaster, for such things were a meddling with the natural order, which was best when it was left alone.  Not only was Bellamy’s world impossible, but even striving for it would always require vast government experimentation in private life, which would inevitably cause tremendous human suffering.  “In all these schemes and projects,” he wrote, “the organized intervention of society through the state is either planned or hoped for, and the state is thus made to become the protector and guardian of certain classes.” He emphasized that the privileged class was not necessarily the poor: in such schemes, the “oppressed” existed for the social prestige of the reformers – an elite class far worse than “the rich.” “The friends of the humanity start out with certain benevolent feelings toward ‘the poor,’ ‘the weak,’ ‘the laborers,’ and others of whom they make pets,” he wrote; plainly nothing was so harmful and degrading for the working classes than when such theories became law.  Mandatory wage increases brought lay-offs; hours legislation sunk the ability of small businesses to compete; health and safety laws favored the large companies who have the funds to comply (if not bribe inspectors).  It was, again and again, the classic definition of corruption: though it always justified by the rhetoric of good intentions, it always ended in greater misery, and social inequalities far worse than what existed before.  “Hence, the real sufferer by that kind of benevolence… is the industrial laborer,” Sumner wrote, “and the friends of humanity once more appear, in their zeal to help somebody, to be trampling on those who are trying to help themselves.”[49]

 

Sumner plainly looked at human affairs in a spirit of brutal realism.  But his work was really driven by a love of justice, and an awareness of how it functioned in a struggling world.  He expressed it best in his famous maxim:

 

The agents who are to direct the state action are, of course, the reformers and philanthropists.  Their schemes, therefore, may always be reduced to this type – that A and B decide what C shall do for D.  It will be interesting to inquire… who C is, and what the effect is upon him of all these arrangements.  In all the discussions attention is concentrated on A and B, the noble social reformers, and on D, the “poor man.”
 

Sumner gave C the famous title of “Forgotten Man” – the hard-working individual who made such schemes possible, but who, at the same time, was quite ignored in such schemes.[50] According to Bellamy, though, C was not “forgotten” at all: he was well known for his great crime of taking everything from D, of which he would not repent.  Making him give up that wealth (or, in Bellamy’s scheme, sweetly persuading him) was the supreme act of justice.  C lived in luxury and decadence: “[t]hese costly viands, these rich wines, these gorgeous fabrics and glistening jewels represented the ransom of many lives”; such things could only come from D’s labor, for which he received pennies.  Still, even the most blatant guilt was forgivable, because it was fundamentally born of ignorance, and a social consciousness that was not yet transformed by the knowledge of evolution.  “The folly of men, not their hard-heartedness, was the great cause of the world’s poverty,” he observed.  “It was not the crime of man, nor of any class of men, that made the race so miserable, but a hideous, ghastly mistake, a colossal world-darkening blunder.” The solution, though, was so simple: “[l]et the famine-stricken nation assume the function it had neglected, and regulate for the common good the course of the life-giving stream, and the earth would bloom like one garden, and none of its children lack any good thing.”[51] For Bellamy, the error was a mere inability to think big; the remedy only required that human beings do what they had always done with their private estates – planning, cleaning, organizing, and loving their own – but now on the grand national scale.  This was mankind’s capacity for complete self-redemption, which was best realized through evolutionary theory, and the deliberate movement forward into the end of history.

 

But Sumner saw it quite the other way around: the individual liberty to acquire wealth was the greatest advance that mankind had ever achieved – in fact, the greatest it ever could achieve – and was therefore the mark of true progress.  Bellamy’s Nationalists spoke as if capitalism was an ancient thing, claiming that their solution was an escape from “the barbaric industrial and social system, which has come down to us from savage antiquity.”[52] But this was quite untrue, according to Sumner: a simple glance at world history showed how much better capitalism was for mankind, and for all social classes, than any previous system.[53] It was capitalism that perfected Darwinism.  But while Nationalists (and later progressives) depended on Darwinism to show a path to the highest and last stage of evolution, Sumner found a reliable framework for describing social reality: “survival of the fittest.” Darwinism taught, above all, that the powerful would achieve greatness only by dominating the weak.  With capitalism, however, social stratification was tilted vertically: the “unfit” failed only because of their own vice, while the “fit” succeeded because of their virtue – with no harm to the unfit; the personal failure of the unfit was far better than slavery or death, as it was in pre-capitalist societies – and, even in the must degraded condition, the avenue for self-correct was always open.  “Liberty does not by any means do away with the struggle for existence,” Sumner wrote.  “What civil liberty does is to turn the competition of man with man from violence and brute force into an industrial competition under which men vie with one another for the acquisition of material goods by industry, energy, skill, frugality, prudence temperance and other industrial virtues.” In a capitalist society, it became “the man of highest training and not the man of the heaviest fist who gains the highest reward.”[54] Any attempt to do better for society without reference to capitalism itself “would bring back personal caprice, favoritism, sycophancy, and intrigue,” he wrote.  Bellamy’s perfect society was not the end of history at all; if tried, for all its promises, it would still be a return to a quite old and dreary social order, which mankind had only recently escaped.  “A society based on contract is a society of free and independent men, who form ties without favor or obligation, and co-operate without cringing or intrigue.”[55] The Nationalists held that social organization and planning were essential; in truth, however, a capitalist society was quite organized and planned already; but the planning was spontaneous, without active state involvement, and following the natural and ordinary principles of human life.  It was quite impossible for the whole to serve individuals; it could only corrupt and degrade them by telling them what was good for them – a thing it could not possibly know, and could only pursue by coercion.

 

The individual, however, could do the greatest good for society, simply by seeking his own self-interest.  In his aptly titled chapter, “That it is not Wicked to be Rich,” Sumner wrote that the “aggregation of large fortunes is not at all a thing to be regretted.  On the contrary, it is a necessary condition of many forms of social advance.” To put limits on the accumulation of wealth was, quite simply, to punish the achievers, who were now society’s greatest benefactors; it was to say to them: “‘We do not want you to do us the services which you best understand how to perform, beyond a certain point.’ It would be like killing off our generals in war.” Certainly every technological novelty, advance in industry, every product and every service appeared because of someone’s desire for gain; but so too did every opportunity for all others to improve their condition, care for their families, and, with strong character and good sense, make their own fortune.  “This tendency is in the public interest, for it is in the direction of more satisfactory responsibility,” he wrote.  Capitalism benefited all.  It presupposed the self-serving impulse in man – and then used that for the common good.  True, there were many instances of capitalist blunder, abysmal wages, excessive hours, inflated prices, and corrupt monopolies.  But Sumner was sure that such things were “chiefly due to ignorance and bad management, especially to State control of public works.” By contrast, left to itself, the market would continue to do the greatest good for mankind. Sumner wished this to never be forgotten: “This development will be for the benefit of all, and it will enable each one of us, in his measure and way, to increase his wealth.”[56]

 

Sumner was not insensible to the social realities of industrialization.  He could allow that there were tremendous economic injustices, which emerged quite spontaneously, without government involvement.  Though they were private, many industries were very intertwined with the public interest, and their pursuit of capital really could come at great cost to the people.  “The progress in material comfort which has been made during the last hundred years has not produced contentment,” he observed in an essay on labor unrest.  Much of that unrest was because of the change in material conditions, or the prospect of achieving luxury, and the lack of attainment, compounded that discontent.  The solution was in the people’s ability to recognize that wealth was only a means to that contentment, and that any sort social progress that proceeded without that I mind would lead nowhere.  “All that we call progress is a simple enlargement of chances, and the question of personal happiness is a question of how the chances will be used,” he wrote.  Such over-dependence on means without ends, by both the wealthy business owners and the laboring poor, might very well lead to disaster as many predicted.  But this was only the “penalty of failure to maintain due proportion between the popular philosophy of life and the increase of material comfort.” A disconnection between those things will certainly bring “social convulsions, which will arrest civilization and will subject the human race to such a reaction toward barbarism as that which followed the fall or the Roman Empire.”[57] Such problems, though, were for the people themselves to correct.  This would only occur with education which produced civic and economic competence, and the good character in individual citizens that would yield fair and decent business practices – things that could take shape only from the bottom up.  These were, after all, the central assumption about citizens of a republic: its success did not depend on laws per se, because the laws themselves depended on the people.[58] The only other solution was to call the regulatory state down, and further damage the conditions of society.  Again, such regulations, contrary to Bellamy, were always experimental – and since every successful experiment came with a million failures, such an approach was “only a way of courting new calamity.”[59] The United States was a “commercial republic”; but the “commercial” aspect was only incidental to its identity – a useful means to republican ends.  Hence, if the means were corrupted, this required a republican remedy, which Sumner saw only in the people themselves.  Altering the nature of the republic, inspired by a false view of Darwinism, would base the solution on a false understanding of the problem, and allow government to become a truly monstrous thing.

 

Still, Sumner’s modern republicanism had a shaky foundation.  For all its pragmatic goodness, he admitted that there was simply no such thing as a “natural right,” or else “there would be something on earth which was got for nothing, and this world would not be the place it is at all.” True, rights-talk could easily distract people from their self-reliant and virtuous work-ethic, which Sumner thought was so essential; but it also stripped away the fundamental guarantee of American republicanism, i.e., “life, liberty and the pursuit of happiness.” Those were not exactly rights that one demand at society’s expense, but a condition of which they could no be deprived.  Sumner, though, held that whatever rights we not natural, but inherited, and “won by the struggles and sufferings of past generations,” he wrote.  In fact, if anything, such rights were because of “victories over Nature,” which was “one of the facts which make civilizations possible.”[60] Hence, Sumner’s conservatism accepted a truth whose implications were far broader than he could admit: Darwinism was fundamentally at odds with republicanism.  It was not the descriptive “survival of the fittest” aspect, but the evolutionary side that prevailed in the long run.

 

B.  Forced Evolution

 

Charles Darwin’s own protégé, Alfred Russel Wallace, showed this well in his teachings on human evolution and society. “We have risen, step by step, on the ladders and scaffolds erected by our predecessors,” he wrote.  Yet this did not mean that modern civilization was any greater than those that preceded it: no matter how high it was on the evolutionary scale, one error could always bring collapse.  The greater task was therefore to discover “the conditions under which that advance may be continued in the future.” Wallace emphasized that it was dominance that brought out the “higher types” of human beings: they were only realized when they were willing to make themselves perfect successors of the lesser classes.  Simply being aware of this, though, as Wallace and so many other social Darwinists were, meant understanding the dire need of perpetuating the “higher types” – “whether any agencies are now at work or can be suggested as practicable, which will produce a steady advance, not only of human nature, but in those higher developments which now, as in former ages, are the exceptions rather than the rule.”[61]

 

For Wallace, the only logical step after knowing evolution was deliberately participating in it.  But there was only one entity that could leave nothing to the deadly game of chance and ensure the fullest participation: the State.  So while Sumner looked to a moralized “survival of the fittest,” Wallace looked to a planned and carefully managed evolutionary process.  The “fittest” were not the most moral, or those who had received Sumner’s ideal private education; they were instead the “fortunate intermingling of germ-plasms of several ancestors calculated to produce or to intensify the various mental peculiarities on which the exceptional faculties depend.” If society had such a critical dependence on the genetic morality of its members, it could not be left to mere “evolutionary drift”; it had to be planned, and coordinated by the sovereign, which had to have the competent power to manage the most intimate aspects of private affairs.  On this point, Wallace’s socio-biological jargon took a sudden turn for the political, thus allowing him to join the progressive pundits of his era.  In truth, the greatest threat to the full participation in evolution and the emergence of “higher types” was none other than liberty itself.  Such an aimless and unplanned condition allows for “those vicious practices and degrading habits which the deplorable conditions of our modern social system undoubtedly foster in the bulk of mankind,” Wallace wrote.  People needed to be managed, or else they would all chase after their own pursuits, and develop all sorts of practices that might very well destroy society, should the “unfit” types come to dominate.  The potential for self-destruction was apparent: “[t]hroughout all trade and commerce lying and deceit abound to such an extent that it has come to be considered essential to success,” he observed.   It was, of course, a strange complaint: were the base aspects of business the cause of bad “germ-plasms,” or were they merely the symptom?  For Wallace, the difference was unimportant.  “No dealer ever tells the exact truth about the goods he advertises or offers for sale, and the grossly absurd misrepresentations of material and quality we everywhere meet with have, from their very commonness, ceased to shock us.”[62]

 

The idea of planned, deliberate, participatory evolution was a feature of Edward Bellamy’s thought as well.  It was Darwinism, after all, that could bring a peaceful transition into Nationalism in his view, rather than violent socialist revolution.  Speaking in an age of perfect Nationalism, one could say that “’humanity has entered on a new phase of spiritual development of higher faculties, the very existence of which in human nature our ancestors scarcely suspected… We believe the race for the first time to have entered on the realization of God’s ideal of it, and each generation must now be a step forward.’”[63] But, much like Sumner, he did not admit the full extent of Darwinism in this project.  To hope for a mere mass-awakening, as he described it, or to achieve any meaningful social organization, was to ignore just how deficient certain segments of society were.

 

Wallace’s American devotee Charles Davenport made this point especially clear: the “lower types” were the single greatest social burden, and neither Nationalism nor any other social organization could be achieved until they were somehow gotten rid of.  It would take something more like “experimental evolution,” or what came to be called eugenics.  It was critical to see that “until recently at least, human society was founded on a fundamentally wrong assumption that all men are created alike free agents, capable of willing good or evil, and of accepting or rejecting the invitation to join the society of normal men.” Letting go of such notions as rights and equality and dignity was the way to make evolution happen as it should.  It began by recognizing that there are no such generalities about human society aside from the ones that power could impose on it; in truth, “the human protoplasm is vastly more complex than their philosophy conceived, and that the normal man is an ideal and hardly a real thing.” Davenport catalogued a long list of deep-seated genetic features that made the members of society what they were – and which, in turn, determined the condition and fate of the societies in which they lived.  Such features could be maximized or rightly ordered, since “[n]o amount of training will develop that of which there is no germ,” he wrote; “you may water the ground and till it and the sun may shine on it, but where there is no seed there will be no harvest.” Like Wallace, Davenport’s only solution was therefore a method of complete social control, all the way down to the most intimate aspects of each individual life.  It was the same principle that appeared in conservationism: it came from knowing “that this protoplasm is our most valuable national resource, and that our greatest duty to the future is to maintain it and transmit it improved to subsequent generations, to the end that our human society may be maintained and improved.” Davenport allowed the same Bellamy-esque humanity and kindness of heart in such a eugenic project: since “reason cannot overcome the sentiment against destruction of the lowest-grade imbeciles,” the next best thing was mandatory sterilization, which many state legislatures implemented as an aspect of their police powers.[64]

 

But Bellamy and the Nationalists held the final point that was sure to triumph over all other views, which exempted him from the realities of political economy, on the one hand, and the full extent of Darwinian social control on the other.[65] Ultimately, all of them, in their sophisticated theories and advanced learning, overlooked the most obvious truth: America was special – “’the pioneer of the evolution’” in fact.  And this is what made such Nationalism prevail.

 

III.  Historicism and the Deconstruction of American Exceptionalism

 

“Exceptionalism” was, of course, a very old thing in American national identity.  The American Founders, and the Puritans before them, certainly saw something in the new regime that was important for the whole world. It was a realization scattered throughout their writings, and it showed through in even the most un-philosophic texts of that era.  Even the ultra-pragmatic Alexander Hamilton claimed that it was left to the people of this country to show “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force”; that the failure to prove the latter would “deserve to be considered as the general misfortune of mankind”; and that “[i]t belongs to us to vindicate the honor of the human race.”[66] But the original view of “exceptionalism” had one primary feature: it was an idea, or a perception of the “palpable truth,” as Thomas Jefferson put it, “that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God” – and that, most importantly, “[t]hese are grounds of hope for others.”[67]

 

But the older view of American exceptionalism became very difficult to maintain in the later nineteenth century.  The Constitution was still revered and honored, but this was only because of a habit, and the reason for that habit became vague, if not in complete doubt.  “Beginning with that great objector Jefferson,” popular historian Edward Stanwood wrote, “there has been an almost unbroken succession of statesmen and politicians who have been disquieted in their righteous minds lest the Republic should receive an injury by an infraction of the Constitution.” The republic stood quite apart from the law that unified it and created its institutions according to Stanwood; were the Constitution to disappear, government would carry on just as it always had.  Still, there were so many who maintained a very blind devotion to the “fundamental law,” and were quite unwilling to see its possible defects – much less the possibility of a better way.  Stanwood chronicled many recent instances, and showed how they “exhibit the state of mind into which gentlemen of large mental grasp and high attainments, who also know as well as any one the value of social science and vital statistics, can bring themselves, when they are in a mood to fret about the Constitution.” Though the social sciences showed a far more promising way than what the old republic had to offer, it seemed “there will always be people to be afraid that [the Constitution] is to be broken up and carted away piecemeal.”[68] The hope, of course, was not so much for the abolition of the Constitution itself.  It was a practical document, and, on simple matters it still served its purpose well enough.  But the greater problem was when it began to have such sway over the political institutions and practices themselves, which were far more attuned to the realities of life than the written document, left by the Founders over a century before.  The amendment process in Section V was left in the Constitution for precisely that reason; but plainly it was not as efficient as the times demanded, according to columnist Goldwin Smith.  While state constitutions were frequently amended, given the authority of state legislatures, “of the Federal Constitution there was no amendment for sixty years” – and even the amendments the nation received, as discussed in the previous chapter, only made the document even more rigid.  Like Stanwood, he chronicled the variety of restrictions, some of them as petty as requiring a presidential inauguration to occur in a blizzard, but others as grave as the process of naturalization of foreign citizens – all of them rules the people accepted even without a Supreme Court ruling on the question.  Given the new class tensions in the United States “may in some measure be practically covered, and the edifice may be patched so as to stand, though it cannot be thoroughly repaired,” he wrote.  “Its soundness is apparently about to be tried by the stress of no ordinary storm.”[69] It appeared to many the sort of thing that the existing constitutional system simply could not have anticipated.

 

The germ of this problem was present from the beginning: the exceptional vision of the American regime was not fully realized at the time of the founding, given the persistence of slavery; it was gradually rejected through the course of the nineteenth century, and was almost entirely abandoned in the Civil War era, despite Abraham Lincoln’s efforts to recover it.  The Progressive Era found the American proposition lingering as an empty ritual – albeit one that obstructed a great many improvements that seemed quite necessary.  This required a certain reconsideration of what actually happened in the American Founding; a contextualization of both events and thoughts in the broader development of Western history might show just how empty that ritual had become, which might ease the difficulty of radically revising it.  A critical history could show that the American Constitution was not unique, but only a sign of deeper trends – and that those trends had developed considerably since the eighteenth century.  A vast amount of literature appeared in this era addressing what exactly happened when the document was framed, which seemed to give a different perspective on what the Constitution itself actually meant for American life.  George Bancroft, for instance, in his five-volume work on the history of the Constitution, explored in intricate detail the Founding era, all in an attempt to show one critical thing: the Constitution was, in fact, a product of its time.  Many believed, like William Gladstone that “’[t]he American constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man,’” – but, as Bancroft was eager to remind everyone, “it had its forerunners.” This historical school of critical realism, for all its pessimistic views about the American Founding, still opened the way for a more malleable understanding of constitutional law, which the public was eager to receive.  “[t]he men who framed it followed the lead of no theoretical writer of their own or preceding times,” he wrote.  “They harbored no desire of revolution no craving after untried experiments.  They wrought from the elements which were at hand, and shaped them to meet the new exigencies which had arisen.” For this reason, there was nothing in the Constitution that demanded permanent adherence, since “he least possible reference was made by them to abstract doctrines,” Bancroft wrote; “they moulded their design by a creative power of their own, but nothing was introduced that did not already exist or was not a natural development of a well known principle.  The materials for building the American constitution were the gifts of the ages.”[70] If the ideas and methods of constitutionalism had developed to the point at which the Founders used them, then surely they could continue to develop the same way for modern Americans.

 

Much of this view required an ability to see government as a thing that existed apart from the Constitution’s design.  Robert Ludlow Fowler, for instance, lamented the tendency for “the majority of ordinary citizens” to “applaud decisions which help them to hold fast to existing and time-honored institutions of government.” The Supreme Court, however, was only partly to blame: the habit of mind was already there, despite the awareness of the need for new innovations in light of class-struggle.  The greatest lesson was that “the Constitution of the United States is only an evolution of Magna Charta, the Petition of Right, the Habeas Corpus Act and the Bill of Rights,” (which apparently preceded the actual Constitution, in Fowler’s mind).  All of this proved that “the institutions of this country present the truer unfolding and embodiment of the essential principles of the public side of the common law of English-speaking peoples,” he wrote.  What were perceived to be the most brilliant innovations in the American Constitution were in fact “already ancient” at the time; they were developmental things, which reflected the evolution of English-speaking thought and practice.  The danger was in the tendency, “after a considerable lapse of time,” to lose sight of the continuity of governmental institutions,” he wrote.  “Even revolutions rarely make much change in the laws of a country.  They simply sow the seed of future changes.” The Constitution was merely “declaratory” of the institutions that already existed – full of human beings and human habits, and bound to grow and evolve on their own, regardless of what the Constitution itself said.  The Founders themselves understood this well enough: the Declaration of Independence did little more than state the obvious, as hostilities with the British had commenced almost a year before July 4, 1776.  Plainly “the student of institutions must go behind declarations in order to determine the real origin of institutions,” he wrote.  Ultimately, it was critical to understand that “[d]ocuments can not create a sovereign power,” meaning that they “can only declare where that power is lodged, and if they mistake the fact, the document and not the power, will in the course of events first disappear.”[71]

 

This theory of historical self-understanding was obviously not home-grown for Americans.  It grew out of the various philosophic schools in Europe – many of which were initially inspired by developments in the United States.  Alexis de Tocqueville was the perfect example.  He had mastered the genre of American studies, and made a name for himself by reporting on America for his colleagues at home.  Yet Tocqueville did this to show how inevitable the democratic movement was: “When one runs through the pages of our history one finds so to speak no great events in seven hundred years that have not turned to the profit of equality,” he wrote.  So far as America was leading the way in that development, it was proper for serious European thinkers to understand it.  After all, “to stop democracy would then appear to be to struggle against God himself, and it would only remain for nations to accommodate themselves to the social state that Providence imposes on them.”[72] But this changed by the end of the nineteenth century: America had far less to offer Europe, in terms of constitutionalism and protection of liberties – but Europe now had everything to offer America.  By far the most popular gift was the academic training in Historicism, which had become the central feature of German universities.  All major themes in political thought were, in fact, steps in a much broader development; even the most rigorous and comprehensive philosophies were little more than products of their time; a study of them, though, revealed the trajectory of Western thought, which culminated in the present condition.  John W. Burgess was one of many figured who accepted this view completely.  He returned from Germany with a new sort of lesson: the Constitution was best understood as a monument of the past – albeit one that was best studied as it had developed through time in ways that maintained too much of its original plan.  All of Burgess’ works came down to one critical lesson: that [the] Constitution must be studied historically and sociologically more than from the juristic point of view, because it is an historical document, sociological, revolutionary product rather than a legal product.” It would not stop functioning as a legal document, of course; but its foundation, according to Burgess, was something that the popular critics of both the Supreme Court and the Constitution would welcome, and which its defenders needed to understand: that it was a thing “whose truthfulness depends only upon its real correspondence with the developments of our history and the conditions of our political sociology.”[73]

 

The original idea of American exceptionalism was therefore debunked in professional circles, and remained only as a shadow of itself in the public.  Again, this was especially easy to believe in light of the sort of class antagonism of the era.  If “being American” meant anything, it was now being on the winning side of primordial forces, and the development of Teutonic folk-traditions; hence, if the Constitution belonging to “We the People” meant anything, it was a mere outgrowth of white Anglo-Protestant folk traditions, whose development had been unconscious until quite recently.  No longer as it a regime dedicated to a proposition: no longer did it look up to anything permanent and enduring; American identity was instead found within the people, and understood more in racial and ethnic terms than ephemeral concepts of eighteenth century political theory.  The main point of this work, according to Dorothy Ross, “was to show that American institutions were part of a changing history, not timeless exceptionalist principle.” Such ideas, though, were formed almost entirely on the basis of “preformed generations,” she wrote; they did not employ a skeptical sort of historiography out of curiosity, but for the sake of establishing a way of self-understanding that could be more malleable.[74] But malleable according to what?  Perhaps many of these historians did not entirely know.  But there can be no doubt that their readers who went on to become prominent progressives certainly did. 

 

Conclusion: The Groundwork for Progressivism

 

Woodrow Wilson, perhaps the single greatest architect of Ameircan progressivism, expressed much the same idea in his earlier work, The State, published in 1889.  It placed custom at the center of the state: “practically, no such sweeping together of incongruous savage usage and tradition is needed to construct a safe text from which to study the governments that have grown and come to full flower in the political world to which we belong,” Wilson wrote.  Only the “Aryans” could offer any basis for the State, in the modern sense, or what he called “those stronger and nobler races which have made the most notable progress in civilization” – not those with the strongest view of permanent things about man or God, but simply those who could realize their own racial identities.  “The existing governments of Europe and America furnish the dominating types of to-day,” Wilson wrote.  “To know other systems which are defeated or dead would aid only indirectly towards an understanding of those which are alive and triumphant.” Wilson could allow that the Whig way of framing a government was indeed a good thing; but it was good, not in light of the principles expounded by its framers, but because of its advanced state of evolution – one that would advance further still into the sort of administrative government that Wilson thought so essential in later years.

 

Hence, while American exeptionalism could not be realized in the principles of the Founding, which were little more than expressions of their time, it could be realized in the future, which became for many “a distinctly American task.” It placed America “at the forefront of or the quintessential center of liberal change,” and “cast universal progress in specifically American shapes, so that America retained its exemplary or vanguard role in world history.”[75] Hence, with a view of developmental nature of political institutions, and all other tenants of German philosophy, as well as the malleability of human nature according to the Darwinian view, American exceptionalism could be remade anew: Americans could create it for themselves.  Progressivism was an awakening to the fact that the old order was gone, but that the void we had entered offered an entirely new opportunity, of the sort that no nation had human history had witnessed.  America stood “at the frontier, [where] the bonds of custom are broken and unrestraint is triumphant.”[76]

 

 

Notes