Alan Meese and Nate Oman Take on Noah Feldman

and his call for a new progressive constitutionalism, modeled on the old, New Deal-style progressive constitutionalism. I agree wholeheartedly with Meese and Oman. One additional point: Feldman, like other modern liberal writers who yearn for the Progressive days of yore, whitewashes Progressivism, so that it consisted solely of public-spirited regulation of corporations and the labor market. Meese and Oman note that the regulations in question weren’t always so public-spirited, but I’d add that Progressive regulation also included alcohol prohibition, coercive eugenics, housing segregation laws, bans on private schools, and other measures that people today across the political spectrum would agree were gross violations of individual rights. Resistance to these measures came primarily from the libertarian constitutionalists Feldman decries, not from his Progressive heroes. With that context, and in stark contrast to the way Feldman portrays things, the idea that property rights and limited government were a bulwark of individual liberty doesn’t seem quite so bizarre.

Coincidentally, just before Feldman’s piece appeared in the Times, I decided on the full title for my forthcoming book: “Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.”

UPDATE: I don’t want to distract readers from looking at Meese and Oman’s excellent piece by focusing too much on a side issue, but let me elaborate on my point a bit more. Feldman intentionally conflates old-style Progressives with modern liberals, referring, for example, to the former as “constitutional liberals.” In fact, modern constitutional liberalism descends not solely from constitutional Progressivism, as Feldman seems to think, but also from what he calls the constitutional conservatives’ “libertarian reading of the Constitution, one that emphasized inalienable rights.”

My point is not that the Progressives were often illiberal, so modern liberals are also illiberal. Rather, because Progressives were often illiberal, it’s extremely problematic to call for modern liberal constitutionalists to return to their Progressive roots, unless one’s goal is to make “liberalism” illiberal–which is not Feldman’s goal.

Feldman, for example, writes, “The fundamental difference, then, between constitutional liberals [he means Progressives] and constitutional conservatives was on the question of whom they feared most,” government or big business. The problem with putting it this way is that as a rule, constitutional Progressives didn’t fear government at all; rather, they welcomed its growth, even when it was regulating matters that had nothing to do with big business.

Similarly, Feldman writes, “little by little, the [post-New Deal] liberal majority began to realize that it had the capacity to protect minority rights and to expand individual freedom,” as if their Progressive predecessors were unaware of this power, as opposed to indifferent or hostile to it.