Appraising the Progressive State

• Author: Herbert Hovenkamp
• Position: Ben V. & Dorothy Willie Professor of Law, University of Iowa
• Pages: 1063-1112

1063

Appraising the Progressive State

Herbert Hovenkamp*

ABSTRACT: Since its origins in the late 19th century, the most salient

characteristics of the progressive state have been marginalism in economics,

the greatly increased use of scientific theory and data in policy making, and

the encouragement of broad electoral participation. All have served to make

progressive policy less stable than classical and other more laissez-faire

alternatives. However, the progressive state has also performed better than

alternatives by every economic measure. One of the progressive state’s biggest

vulnerabilities is commonly said to be its susceptibility to special interest

capture. The progressive state makes many decisions via either legislation or

administrative agencies, and both are thought to be prone to special interest

control at the expense of the public. Nevertheless, the superior economic

performance of the progressive state calls that conclusion into question. How

can a state policy that is so prone to special interest capture also produce

superior results?

One severe weakness of the capture argument against the progressive state is

that it uses the free market as a baseline for identifying what is in the public

interest. Under such a standard, any political theory that believes that market

failure is more widespread and in need of correction will generate too many

false positives suggesting capture. In fact, special interest capture often

explains failures to regulate as much as special interest regulation itself, and

today the former dominates the latter on many important issues. Ironically,

one exacerbating factor in producing such capture is the structural features

of the Constitution itself, which place much higher burdens on those seeking

to regulate than on those seeking to resist regulation.

I. INTRODUCTION ........................................................................... 1064

II. IDENTIFYING THE PROGRESSIVE STATE ....................................... 1066

A. THE MYTHICAL LIBERTARIAN CONSTITUTION ........................ 1067

B. THE SCOPE OF THE PROGRESSIVE MARGINALIST

REVOLUTION ......................................................................... 1072

* Ben V. & Dorothy Willie Professor of Law, University of Iowa. Thank you to participants

in faculty workshops at Vanderbilt University Law School and the University of Florida Law

School.

1064 IOWA LAW REVIEW [Vol. 102:1063

C. THE PROGRESSIVE STATE AND SCIENCE ................................... 1079

D. PROGRESSIVE LEGISLATION AND REGULATION ........................ 1082

III. ECONOMIC PERFORMANCE .......................................................... 1084

IV. CAPTURE AND THE PROGRESSIVE STATE ..................................... 1093

A. MADISON’S INADEQUATE STRUCTURAL APPROACH TO

CAPTURE .............................................................................. 1096

B. CAPTURE AND THE CLASSICAL CONSTITUTION:

THE UNREGULATED MARKET AS BASELINE ............................. 1099

C. OBJECTIVE WELFARE JUDGMENTS ........................................... 1104

D. CAPTURE AND INACTION ........................................................ 1106

V. REFLECTIONS AND CONCLUSION ................................................ 1107

I. INTRODUCTION

The legal and political institutions that comprise the modern progressive

state had many of their origins in the historical United States Constitution,

but progressivism’s most distinctive modern features began to emerge in the

late 19th century. The structures we identify with the modern progressive state

were largely in place by the beginning of World War II and continued on an

expansion course through the years of the Warren Supreme Court

(1953–1969) and LBJ administration (1963–1969).1 Since that time the

progressive state has been heavily criticized by conservatives and libertarians2

but defended by many liberals and moderates.3

The most important attributes of the modern progressive state are a

belief that legal policy should be guided by the best available scientific

knowledge; marginalism in economics; anti-historicism in the social sciences;

a strong commitment to non-market institutions, heavily reflected in policy

making carried out by government agencies; deferential judicial review of

1. On the historical development of the progressive state, see generally HERBERT

HOVENKAMP, THE OPENING OF AMERICAN LAW: NEOCLASSICAL LEGAL THOUGHT, 1870–1970

(2015). On politics and social movements, see generally JOHN WHITECLAY CHAMBERS II, THE

TYRANNY OF CHANGE: AMERICA IN THE PROGRESSIVE ERA, 1890–1920 (3d ed. 2000); RICHARD

HOFSTADTER, THE AGE OF REFORM (1955); and MICHAEL MCGERR, A FIERCE DISCONTENT: THE

RISE AND FALL OF THE PROGRESSIVE MOVEMENT IN AMERICA, 1870–1920 (2003). See generally

DORIS KEARNS GOODWIN, THE BULLY PULPIT: THEODORE ROOSEVELT, WILLIAM HOWARD TAFT,

AND THE GOLDEN AGE OF JOURNALISM (2013).

2. Recent examples include THOMAS C. LEONARD, ILLIBERAL REFORMERS: RACE, EUGENICS

& AMERICAN ECONOMICS IN THE PROGRESSIVE ERA (2016); 1–2 ELLIS WASHINGTO N, THE

PROGRESSIVE REVOLUTION: LIBERAL FASCISM THROUGH THE AGES (2013).

3. See generally, e.g., JACOB S. HACKER & PAUL PIERSON, AMERICAN AMNESIA: HOW THE WAR

ON GOVERNMENT LED US TO FORGET WHAT MADE AMERICA PROSPER (2016); IRA KATZNELSON, FEAR

ITSELF: THE NEW DEAL AND THE ORIGINS OF OUR TIME (2013); SUSAN ROSE-ACKERMAN, RETHINKING

THE PROGRESSIVE AGENDA: THE REFORM OF THE AMERICAN REGULATORY STATE (1993).

2017] APPRAISING THE PROGRESSIVE STATE 1065

economic legislation that does not clearly violate express provisions of the

Constitution, but harsher review of provisions that adversely affect

underrepresented minorities or impair the practice of fundamental rights.

One other progressive value is equally important, although its meaning

has shifted over the years. That is progressives’ strong commitment to broad

political participation by voting, including flirtations with direct democracy.4

Broad voter participation was central to the early Progressive Era,5 but it

produced tension with later progressives’ increased reliance on science and

expertise to make policy.6 The latter impulse triumphed during the New Deal,

giving way to ideas about statecraft favoring expertise, administrative law, and

judicial deference—and in the process insulating government decision-

making from direct citizen control.7 As legal realist James Landis put it, in a

complex world where policy is driven by scientific conception, it is essential

that issues be decided “by those best equipped for the task.”8 Despite this

tension, the concern with citizen participation has had consistent support in

the progressive state. One example is the Civil Rights Era’s concern with

redistricting and equal voting, strongly expressed by the Voting Rights Act.9

Another is the more recent concerns about campaign finance reform, voter

ID laws or polling place closure that threaten to limit voter participation.10

Another progressive value is government stimulation of labor

participation and welfare. Progressive support for labor in large part reflects

progressivism’s “demand-side” approach to the economy. That has entailed

broad support for both labor unions and minimum wage laws, as well as a

government commitment to full employment, even if it produces some

4. See generally IN DEFENSE OF THE FOUNDERS REPUBLIC: CRITICS OF DIRECT DEMOCRACY IN

THE PROGRESSIVE ERA (Lonce H. Bailey & Jerome M. Mileur eds., 2015).

5. See HOFSTADTER, supra note 1, at 257–60; MICHAEL WALDMAN, THE FIGHT TO VOTE

73–124 (2016). Contemporary sources include BENJAMIN PARKE DEWITT, THE PROGRESSIVE

MOVEMENT: A NON-PARTISAN COMPREHENSIVE DISCUSSION OF CURRENT TENDENCIES IN AMERICAN

POLITICS 4–5 (1915).

6. One good example is articulated by New Deal legal scholar and administrative law

expert James M. Landis. See JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 22–25 (1938).

7. See FELIX FRANKFURTER, THE PUBLIC & ITS GOVERNMENT 130–50 (1930) (describing the

superiority of expert managers over lay voters as policymakers). For sharp qualifications, see

generally Louis L. Jaffe, The Effective Limits of the Administrative Process: A Reevaluation, 67 HARV. L.

REV. 1105 (1954).

8. James M. Landis, Administrative Policies and the Courts, 47 YALE L.J. 519, 536 (1938).

9. WALDMAN, FIGHT TO VOTE, supra note 5, at 125–70.

10. Id. at 213–65. See generally Richard L. Hasen, Three Wrong Progressive Approaches (and One

Right One) to Campaign Finance Reform, 8 HARV. L. & POL’Y REV. 21 (2014); Tiffany R. Jones,

Campaign Finance Reform: The Progressive Reconstruction of Free Speech 321, in THE PROGRESSIVE

REVOLUTION IN POLITICS AND POLITICAL SCIENCE: TRANSFORMING TH E AMERICAN REGIME (John

Marini & Ken Masugi, eds., 2005); see also generally Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016)

(striking down a Texas voter ID provision).