Immigration and the turn to restriction
In the episode “Let Them All In,” Bob Zadek puts to Alex Nowrasteh his account of American immigration before the 1880s: from the founding of the country through that decade there were essentially no rules on immigration other than to arrive and be welcome, and the country, he says, had no problems. What changed, in Zadek’s telling, was not the fabric of America but cowardice and economic protectionism — Americans who gave lip service to competition proved unwilling to compete when someone would do their job for less money. He rejects the phrase “our job,” arguing that no one owns a job and that a person is entitled to one only by doing the best job for the lowest money, and he describes the turn to government protection as a form of crony capitalism Let Them All In (2013).
Nowrasteh supplies the periodization. The immigration restrictions, he says, were put in place and increased over the entire length of the Progressive Era, from the 1880s to the 1920s, becoming stricter until the border was literally closed to almost all immigrants in the late 1920s. He places that restriction alongside other developments of the same years: the creation of the Federal Reserve system and a nationalizing of the currency, the creation of the income tax, and the prohibition of alcohol. All of these, he argues, were efforts to force into Washington the economic and social decision-making that had previously taken place at the individual level, and immigration restriction is one of the most important parts of that increasing centralized control. He adds that conservatives and Republicans who understand the income tax, the Federal Reserve and prohibition to have been bad policies nonetheless cling to the notion that the Progressive Era policy of immigration restriction was good for the United States Let Them All In (2013).
Progressivism as a redefinition of government’s role
Randall Holcombe, in the episode on Liberty in Peril, traces the federal government’s heavy involvement in the economy to the Progressive Era that started in the late 1800s. His starting point is constitutional: the Constitution says virtually nothing about the economy because it designed a government of limited and enumerated powers, and the 10th Amendment reserves to the states or to the people those powers not explicitly given to the federal government. The Constitution, he says, does not give the federal government any powers over regulating the economy Randall G. Holcombe on Liberty in Peril (2019).
Holcombe’s definition of progressivism is compact: the role of government is not only to protect our rights but to look out for our economic well-being. At the founding, he says, the key idea was that government’s role was to protect liberty and rights, and the Founders envisioned government itself as the biggest threat to those rights — which is why they created a government of limited and enumerated powers. The progressive ideology that came along in the late 1800s expanded that vision. It arose as a reaction against men who had amassed tremendous economic power in a short period — Rockefeller, Carnegie, Fisk, Vanderbilt — in a nation industrializing for the first time in the history of the world. From the beginning, Holcombe argues, the progressive ideology was redistributive: the idea that costs could be imposed on the new industrialists and financiers in order to provide economic benefits to others. That, he says, is the origin of the welfare state, and the principle that it is really okay to impose costs on some people for the benefit of others is one he follows through the 20th century and into the 21st Randall G. Holcombe on Liberty in Peril (2019).
The living constitution
In the Amy Coney Barrett episode, Zadek asks Randy Barnett what there is about the progressive worldview that makes progressives embrace a living constitution. Barnett answers that progressives invented the concept at the turn of the 20th century, between the 19th and 20th centuries. Woodrow Wilson was a living constitutionalist, he says, and was candid about his motivations: he did not like the Constitution, said the country should be living under a parliamentary system, and called the existing document a “horse and buggy” constitution for a modern age Amy Coney Barrett on Trial (2020).
Barnett roots the idea in social Darwinism. Progressives viewed themselves as social Darwinists, he says, because Darwin and evolution were considered the highest form of scientific knowledge; societies were thought to be like organisms, and just as organisms evolve to a higher state, societies evolve to a higher state. Because societies are living, breathing organisms, a constitution — not our Constitution, but a constitution — was needed that would allow societies to evolve the way they ought to evolve to a higher and better state. That, Barnett says, is the deep underlying root of the original idea of the living constitution, and it is what motivates progressives today: why be bound by the dead hand of a past when we know better, and why be ruled by them when we should be ruled by ourselves today. He glosses “ruled by ourselves” as majority rule, which means the minority has to go along with it Amy Coney Barrett on Trial (2020).
Zadek offers his own, harsher formulation: that progressives reject much of America’s founding principles, but that an outright call to tear up the Constitution and hold a constitutional convention would not fly, so the way to reject it without rejecting it is to minimize it and say that what the Founders meant was this today. He calls that a subtle and stealthy way to change the government while appearing to operate under the existing form. Barnett says he could not find fault with any of it and offers an analogy: telling a spouse “I love you, I love you dearly, and I want to fundamentally transform you” suggests you actually want a different spouse Amy Coney Barrett on Trial (2020).
Judicial review and the eras of the Court
In “Reviewing Judicial Review,” Zadek complains that public discussion of controversial Supreme Court decisions is never about the law but always about policy, and that critics blame the Court for striking down a statute rather than Congress for passing a clearly unconstitutional law. Keith Whittington agrees that this is where the political culture is, and says politicians have taken the lesson to heart. In the 19th century, he says, politicians worried more about the Constitution, partly because they thought it was their own responsibility and partly because it was in their political interest. Voters, he argues, care about policies rather than the Constitution itself; no congressman will be thrown out of office for voting for a statute the Court later holds unconstitutional, and with no political price to be paid there is no incentive to stay within constitutional bounds. Presidents learned the same lesson, he says: they hardly ever veto legislation because they think it is unconstitutional, preferring signing statements that flag constitutional problems and hope the Court takes a serious look later. The result, in his account, is that a lot of pressure falls on the Court to clean up constitutional mistakes elected politicians will not clean up themselves, which makes the constitutional system more fragile than it otherwise should be Reviewing Judicial Review (2020).
Zadek then asks about Whittington’s breakdown of the study of the Supreme Court into eras — from the founding era through the Civil War, from the Civil War through the Progressive Era, from the Progressive Era to the New Deal, and from the New Deal to the present — and whether those eras show dramatic differences in how actively the Court struck down laws. The excerpt ends with the question Reviewing Judicial Review (2020).
Across episodes: the same charge, different fronts
The Progressive Era is argued in more than one episode, and the treatment shifts with the guest’s subject rather than building a single arc. Nowrasteh, in “Let Them All In,” treats the era as a period of centralization running from the 1880s to the 1920s, with immigration restriction as one item on a list that includes the Federal Reserve, the income tax and Prohibition. Holcombe, in the two Holcombe episodes, treats it as the moment when the purpose of government was redefined to include economic well-being, and traces the welfare state to that redefinition. Barnett, in the Barrett episode, treats it as the moment when the living constitution was invented, and names Wilson as a living constitutionalist. Whittington, in “Reviewing Judicial Review,” treats it as a boundary between eras of Supreme Court activity. What changes across the episodes is the front on which the era is examined — immigration, economic rights, constitutional interpretation, judicial eras — not the underlying characterization of the period as one of expanded central authority.
What the sources do not cover
The excerpts do not supply the names of the immigration statutes of the period, the holding or citation of Munn v. Illinois, or the content of the 17th Amendment, though the episode summaries mention the amendment and the case. They do not give the founding date of the Progressive Era beyond the late 1800s, nor do they describe how the era ended. Whittington’s answer to Zadek’s question about differences among the Court’s eras is not present in the excerpt, which breaks off at the question.