Land use and Lochner: What is a progressive?

This Old House: Some naybors oppose redevelopment of this site on Capitol Hill

Let’s cleanse our palate shall we? After big helpings of argument and debate over zoning in Roosevelt how about a spoonful of Obscure Legal Decision Sorbet. I’ve prepared this little diversion in hopes that we might look at the larger context of government and it’s proper role in land use decisions and in our lives in general. Enjoy!

Noted conservative pundit George Will recently put an interesting spin an obscure but important legal decision, called the Lochner decision. Will’s take forces someone like me to ask “what does it mean to be a Progressive?” Sometimes our intellectual opponents are the best ones to keep us honest.

The Lochner decision was ostensibly about the hours that bakeries could operate in New York at the turn of the last century. Local government, under the pressure of unions and big bakeries, lobbied the state legislature to limit the hours of operation of all bakeries. The limits would favor the bigger players at the expense of smaller businesses. Court after court upheld the law, until it reached the United State Supreme Court. The Court ruled 5 to 4 to over turn lower court decisions, holding that the law limiting bakery hours was an “unconstitutional ‘interference’ with an unenumerated right of individuals, the liberty of contract.”

Will is correct in his assessment in the article that being Progressive means believing in the benefits of good government, and a rejection of the Jeffersonian, small government, natural rights rhetoric that dominates American thought about government. Conservatives believe government limits freedom, while Progressives believe government helps us attain freedom. The Lochner decision is an example of government intervention ultimately thwarted by the courts.

While I don’t agree with Will’s pejorative characterization of Progressives as “statist” and “paternalistic,” I do think that Progressives can be self-loathing, afraid to accept our heritage of government interventionism. That’s why I like Will’s choice to let the dissent to Lochner written by Oliver Wendell Holmes Jr. speak for the Progressive side of the argument about government.

I think the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe on fundamental principles as they have been understood by the traditions of our people and our law.

Holmes of course is referring English common law after the word ‘unless,’ and his dissent anchors liberty not in our written Constitution but in the bedrock tradition that precedes and supports it. Will is right to find this as the chasm across which Progressives and conservatives face each other on questions of government and freedom. But I would suggest that real divide is between Progressives on the one hand and Constitutional Fundamentalists on the other.

There are Constitutional Fundamentalists on both left and right. Their views are characterized by a strict adherence to the words written in the United States Constitution. So left leaning fundamentalists like to emphasize that our freedom of speech, for example, emanates from the First Amendment of the United States Constitution. Right leaning fundamentalists believe, for example, that we have the freedom to own guns, based on their strained reading of the Second Amendment. Either way, attaching oneself to the outcomes of the interpretation of our written Constitution can have unpleasant side effects.

Opinions can change, suggests Fundamentalist Will, but the Constitution doesn’t and he cites all manner of examples of majoritarian legislative decisions that resulted in injustice, including red lining and discrimination based on sex. Will makes the point that to be a Progressive means wedding oneself to “government’s power to boss people around.” We should hew to what our Constitution really says, not the opinion of a do-gooder bureaucrat, relying on “best practice” or (gasp!) science. Those thing matter less than trying to reach across time to the intent of the Founding Fathers.

However, Will doesn’t give proper weight to the second part of Holmes comments. Institutional discrimination against a whole class of people, for example, is not consistent with “the traditions of our people and our law,” no matter how many people might vote for it or support it. Such discrimination occurred and still occurs within the framework of our written Constitution. He doesn’t point out that majority views of what the founders ‘really meant’ come and go, just like legislative majorities. But the common law is based on precedent and evolving legal opinion across centuries of human experience, not one written document.

Progressives appeal not to an interpretation of the Constitution, but to basic legal protections of freedoms that have evolved over time over and against fantastical natural rights that “preexist government” supposedly enshrined in a written document. Progressives see government as a means to the end of freedom, while Constitutional Fundamentalists see legal wrangling over interpretations of the Constitution as a means to settling arguments about what ‘unenumerated preexisting rights’ might mean. But, oddly, such Fundamentalists, who see government as the attenuator of human freedom, rely on government, in the form of elected and appointed judges, to make those decisions. If government is so bad, why rely on it so desperately to cross itself out?

Progressives might feel splattered on the intellectual street corner by smart guys like George Will, but we really shouldn’t. Will’s point of view, though shared with many, that we ought to limit our arguments to what the framers of the Constitution meant to say, is no basis from which to suggest that government is bad. Even if we except a vast panoply of “God given” rights and freedoms, how would Constitutional Fundamentalists propose we realize those? Reality TV? Prayer? Judge Judy? The challenge we face is not a quantitative one of limiting amount of government but a qualitative one of increasing its effectiveness.

When it comes to land use government does have a role to play in making decisions that ultimately affect our lifestyles. Those decisions are supported by the idea that legislatures can make decisions that pick winners and losers. For the last 60 years government already has favored the single family home, subsidizing it, building highways for it, and slanting land use policies toward the proliferation of the suburb.

Single family life has been, in Holmes words, the “dominant opinion.” But things need to change, and government ought to intervene again, but this time it ought to be in favor of a different paradigm. Will is wrong to claim that the big fight is over whether government can or should intervene. Instead, the question is what will government choose, a sustainable path or one that leads to oblivion.

These New Houses:Should government help make density?

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5 Responses to Land use and Lochner: What is a progressive?

  1. Niccolo Machiavelli says:

    Big irony here is that the “dominant opinion” favors lower low-density pollution and sprawl. Where the market is free to operate higher density results where higher land values occur. Leaving more space for parks, industry, wilderness, agriculture, watersheds. Zoning and NIMBY politics on the local level, left and right, for the most part drive sprawl.

  2. The interstate highway system was not created for the benefit of single family homes, it was created by the Eisenhower administration to provide for easy movement of military troops should war ever come to American soil. Yes, it has become an easy means to transport food and other consumer goods to our cities as well as to allow commuters to live at some distance from their place of work. Without the highway system, the cost of living in the city would be higher than it is now.
    The solution may not be to pack people into dense areas of the city so they can all ride a tram to their assigned cubical, but to approach it with a more creative idea since most people won’t live in your view of the ideal solution.
    A real solution would be to stop building fossil fuel burning family sized vehicles. No more imports, or exports.That would cut the need for gasoline immediately and prevent further wilderness desecration and or wars to acquire it. Instead of waiting for 2040 or 2050 or beyond, 80% of everyone would be driving a “green” vehicle within 10 years. Yes, it would be a tough couple of years but the industry has turned on a dime in time of war to manufacture planes and ships and it can do so again. Targeting people who want to live in single family homes is just poor thinking.

  3. Pingback: Downward mobility or movin’ on up?: Getting used to a different view of the future | The theory and practice of folkenomics

  4. Pingback: Is the Big House, Little Lot ‘Emergency’ Constitutional? | Seattle's Land Use Code

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