While New Dealers and subsequent liberals rejected ancillary items on the progressive agenda, they embraced the core concept of a government big, powerful, and unstinted enough to do all that progress requires. In 1937, Luther Gulick, an important New Dealer and leading proponent of the professionalization of public administration, advocated restructuring American government to reduce the typical law enacted by Congress to “a declaration of war, so that the essence of the program is in the gradual unfolding of the plan in actual administration.” And indeed, the political scientist Theodore Lowi assessed the sprawling governmental apparatus built up over the subsequent four decades by saying, “Liberalism is hostile to law.” That is, liberalism promotes “policy without law” by having Congress delegate real governance, and vast discretion, to administrative agencies that go on to regulate with “a vigor that is matched only by its unpredictability.” The consent of the governed, expressed through elections that let the people turn unsatisfactory officials out of office, is trivialized. Tired of waiting for the progress of a maturing society to do something democratically about global warming? Fear not — there’s a tenuously democratic Plan B. The Environmental Protection Agency’s life-tenured civil servants have already declared that greenhouse gases are within their boundless regulatory purview, and they stand poised to overrule Congress if elected legislators decide against mandating new limits on emissions.
(2) Lind’s insistence on the New Deal’s adaptive fealty to the natural rights of the American Founding rests on the perception of a guileless Franklin Roosevelt, a quality undetected by the overwhelming majority of FDR’s critics and
admirers. This willed credulity allows Lind to declare that if FDR said his purpose was to preserve the freedoms that animated the Founding, it’s simply not possible that he had anything else up his sleeve. This argument leaves no room for the possibility, advanced by Sidney Milkis of the University of Virginia, that FDR gave “legitimacy to progressive principles by embedding them in the language of constitutionalism and interpreting them as an expansion rather than a subversion of the natural rights tradition.” Roosevelt agreed with Jefferson and Madison, but only in the sense that Roosevelt insisted Jefferson and Madison agreed with him
, that the Founding was a proto–New Deal.
In 1932, FDR stated that under the social contract laid out in the Declaration of Independence, “rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order.” Unlike the rights described in the Declaration, however, there is nothing natural or inalienable about the ones described by FDR: They’re not yours to begin with, and statesmen and historical changes can always alter, augment, or rescind them.
By 1944, the social order had changed and grown enough for the statesman Roosevelt to explicitly redefine Americans’ rights to include jobs, housing, medical care, education — in short, a “Second Bill of Rights,” all of which “spell security.” That can’t be the last word, however; the prospect of future changes in the social order causes FDR to urge the recognition of “these and similar rights.” The governmental right to discover new rights could, for instance, someday lead to the development endorsed by FDR’s National Public Resources Board in 1943, when it called for recognizing the right to “rest, recreation and adventure.”
Who among us would disdain citizenship in that Club Med polity where safaris and sea cruises are guaranteed as a matter of right, where we might awaken any day to find that the changing social order has left us yet another shiny new entitlement in the driveway? The problem is that it turns out to be impossible to elevate every social-policy goal to a right without reducing every right to just one more policy goal. In 1994, the Clinton Department of Housing and Urban Development’s (HUD) enforcement of the Fair Housing Act was so zealous that it demanded that groups opposed to new homeless shelters or drug-treatment facilities in their neighborhoods turn over to federal investigators (who were seeking evidence of discriminatory motives or attitudes) every article,
flier, or letter to the editor their leaders had written, as well as the minutes of every public meeting they addressed. The HUD assistant secretary called upon to defend this thuggery compressed six decades of liberal rhetoric into a single op-ed, which explained how the department had to “walk a tightrope between free speech and fair housing. We are ever mindful of the need to maintain the proper balance between these rights.”