Is America most true to its character and history when it embraces Progressive redistributionism and benevolent coercion? No, says Barton Swaim

See ‘New Democracy’ Review: Equality, Progress—and Coercion: Is democracy about votes and elections or the redistribution of wealth?. Excerpts:

"The book stands or falls on its assertion of a radical discontinuity between the antebellum and postbellum United States, but the author himself gives us evidence of continuity. Take the idea of citizenship. It’s true that in the country’s early decades it wasn’t always clear what rights citizenship conferred or even who counted as a citizen. Mr. Novak cites an attempt in 1778 by South Carolina’s William Henry Drayton to confine citizenship to whites in the Articles of Confederation as evidence that citizenship in the Founding era was “a concept under contested construction.” But surely the salient point is that 11 of the 13 states voted against Drayton’s proposal.

After the war, accordingly, legislators looked to antebellum precedents to extend full rights and citizenship to black Americans. Illinois Sen. Lyman Trumbull, who introduced the Civil Rights Act of 1866, cited the legal precedent of Corfield v. Coryell, an 1823 circuit-court decision positing nationwide citizenship rights. It’s not clear why, if there was a radical discontinuity, postbellum legislators would seek legitimacy from the regime they had just abolished.

Mr. Novak, correctly acknowledging the injustices that American law continued to permit long after the antislavery amendments, writes of the “partialness and reluctance of this constitutional revolution.” But revolutions aren’t partial or reluctant. What he sees is not a revolution but the slow, imperfect development of a rights-protecting liberal democracy. 

The book places its heaviest emphasis on the Progressive Era, when federal authority grew as never before. Mr. Novak devotes several pages to the Supreme Court’s famous Lochner decision of 1905. In that case, the Supreme Court ruled, in a 5-4 decision, that a Utica, N.Y., bakery had a right to allow an employee to work more than 60 hours in a week, in defiance of the state’s Bakeshop Act of 1895. Mr. Novak complains that the decision has attracted so much attention over the decades (every law student studies it) that historians have come to believe the Progressive Era judiciary routinely struck down intrusive governmental measures. In truth, he notes, Lochner was an outlier, and the commonly discussed “Lochner era” is a myth. 

That point has been made before, most recently in David Bernstein’s “Rehabilitating Lochner” (2011), and it is a fair one. Conservative jurists differ sharply over whether Lochner was rightly decided. (Antonin Scalia, for example, thought it a dreadful decision, however stupid the law it struck down.) Mr. Novak’s description of the case itself, though, suggests a broader failure to query his own optimistic assumptions about state power. “The New York Bakeshop Act,” he writes, “was a quintessential state police power regulation and progressive reform aimed at ameliorating sanitary and health conditions in fetid bakeries and establishing maximum hours for laborers at a ten-hour day and sixty-hour workweek.” Was it, though? The Bakeshop Act had been backed in the state legislature by large bakeries and their unions as a way to cripple smaller family-owned competitors. The law’s public-safety packaging was strategic, as such regulations so often are."

"Mr. Novak acknowledges that the period from 1866 to 1932 brought about some “egregiously antidemocratic catastrophes like disenfranchisement, racial segregation, Chinese exclusion, a war on Indigenous peoples, imperialism, and eugenics.”"

"Mr. Novak skips lightly over, or ignores altogether, the illiberal catastrophes he lists above. Also barely mentioned are Prohibition, the jailing of dissidents and journalists on wild charges of “espionage” and “sedition,” the internment of German-Americans and rampant domestic spying by the Justice Department."

"I remain unpersuaded by the book’s contention that America is most true to its character and history when it embraces Progressive redistributionism and benevolent coercion. Mr. Novak presents the era between the Civil War and the New Deal as a string of victories for welfare-state technocracy. There were many of them, to be sure, and not all of them were catastrophes. But big government’s critics consisted of more than William Graham Sumner, the pathbreaking sociologist whose views are caricatured and glibly dismissed, and Herbert Spencer, the proponent of Social Darwinism who was, by the way, not American but English. Mr. Novak doesn’t name Columbia president and Nobel laureate Nicholas Murray Butler, a sharp defender of federalism and classical liberal government, and mentions U.S. Solicitor General James M. Beck’s broadside against bureaucratic rule only in order to call it “propagandistic.” You wouldn’t know from “New Democracy” that, at the height of the Progressive Era, Americans overwhelmingly elected Calvin Coolidge to the presidency—a man who cut tax rates, vetoed expenditure bills on the grounds that they were unaffordable and set bad precedents, and left office scarcely less popular than when he arrived. 

But what strikes me most about Mr. Novak’s “new capacious democratic vision,” as he calls it, is that it appears to have no place for dissent. Classical liberalism had its weaknesses, but at its best it made space for heretics, eccentrics and anyone else who found himself at odds with the collective teleology. Progressive visions offer no such space. Mr. Novak quotes an observation by the early-20th-century activist Jane Addams approvingly: Democracy, she wrote, is no “mere governmental contrivance” or “method of administration” but rather “the ultimate purpose of securing the welfare of the people.” That sounds swell, but what if you believe the people’s welfare is best provided in some other way? Shut up, is the answer."