The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thomas C. Leonard, with whom I co-authored an article several years ago, has a new book out, "Illiberal Reformers: Race, Eugenics & American Economics in the Progressive Era."
The book won't be news to those who have been following Tim's copious writings, but it may come as a shock to those who think that one can draw a straight line from pre-New Deal progressivism to the liberal "rights revolution" of the post-World War II era. As Leonard's title suggests, as a rule early progressives were far from liberal in the broad sense of the word. Instead, combining a belief in eugenics and trendy pseudo-science, a distrust of markets, a disavowal of the American natural rights tradition and a broad faith in the power of government to shape society for good, they sought public policies that would benefit "fit" white male breadwinners of northern European origin and their families at the expense of "unfit" African Americans, Eastern and Southern Europeans, women and Northern European men with physical or mental disabilities. Thus, for example, rather than disputing the notion that minimum wage laws would lead to the exclusion of the latter groups from the labor market, progressive reformers thought that this was a strong point in favor of such laws. Moreover, as this favorable book review in the New Republic acknowledges, "in the early twentieth century, progressives displayed an open contempt for individual rights."
Leonard's book focuses on economists, while my own book, "Rehabilitating Lochner: Protecting Individual Rights from Progressive Reform," discusses similar intellectual trends in the legal profession, albeit in the broader context of the development of constitutional law. We should not blame modern liberals/progressives for the sins of the original progressives. We should, instead, recognize that modern legal liberalism is an amalgam of progressive ideas (e.g., near-absolute judicial deference to economic regulation), classical liberal ideas (e.g., fundamental rights that trump even valid police power interventions by government) and a dash of labor and other forms of radicalism (e.g., the influence of the ACLU, founded and led by Roger Baldwin, who by 1928 was effusively praising workers' liberty in Stalin's USSR, on the development of civil liberties doctrines). (UPDATE: To be clear, the ACLU eventually became an important part of the mainstream liberal establishment, but in its early years, when modern rights-based liberalism was first emerging on the Supreme Court, it was a radical-left organization.)
In addition to the New Republic review noted above, Virginia Postrel discusses "Illiberal Reformers" here.