On Clarence Thomas' Anti-Wilsonianism

Justice Clarence Thomas recently delivered a speech at UT Austin on the Declaration of Independence and the principles of the American Founding. A portion of that speech was published in the Wall Street Journal under the title "Progressives vs. The Declaration." That excerpt is useful because it neatly summarizes a standard conservative account of the meaning of the Founding and the corruption produced by the Progressive Era and Woodrow Wilson in particular. Much more can be said about the origins and appeal of that narrative, which broadly harmonizes that pet interests of economic libertarians, West Coast Straussian political theorists, and originalist jurists, but I will set that point aside. Justice Thomas goes beyond the standard narrative by drawing a line from the American Progressives to the totalitarian regimes of the twentieth century, but I will set that aside as well. 

I have argued at greater length in an article that Woodrow Wilson's constitutional theory is in broad strokes continuous with that articulated by Hamilton and Madison in the Federalist Papers. I don't take up there Wilson's apparent critique of the Declaration of Independence, but my general view is that Wilson is best read as offering a Burkean interpretation of that document.

My aim in this post is narrow: I would like to examine the charges levelled against Woodrow Wilson by Justice Thomas in the WSJ excerpt of his speech. These charges are abridged versions of arguments that have been developed more systematically by influential conservative scholars (Pestritto, Kessler, Hamburger, etc.), but I will limit my focus to the evidence Justice Thomas marshals. Still, my general assessment of those broader arguments will be clear enough. 

In short, I don't find Justice Thomas' critique of Wilson remotely persuasive. He makes three basic arguments: (1) Wilson was an enthusiast for administration to the point of defending unlimited state power; (2) Wilson was hostile to natural rights; and (3) Wilson was contemptuous of the people and therewith of democracy. All three arguments misinterpret and misquote (sometimes egregiously) Wilson's writings. As a matter of charity to Justice Thomas, I'll chalk up those misrepresentations to rhetorical convenience or the sloppy work of a clerk. 

1. On administration and state power

Justice Thomas writes:

Wilson and the progressives candidly admitted that they took it from Otto von Bismarck’s Germany, whose state-centric society they admired. Progressives like Wilson argued that America needed to leave behind the principles of the Founding and catch up with the more advanced and sophisticated people of Europe. Wilson called Germany’s system of relatively unimpeded state power “nearly perfected.” He acknowledged that it was “a foreign science, speaking very little of the language of English or American principle,” which “offers none but what are to our minds alien ideas.” He thus described America, still stuck with its original system of government, as “slow to see” the superiority of the European system.

Here Justice Thomas is quoting one of Wilson's most influential articles, his 1887 "The Study of Administration." It is true that Wilson admires European advances in bureaucratic organization and administration. But Wilson clearly is not arguing that the continental European regimes are, as a whole, superior to the American model of government. On the contrary, Wilson is explicit that the Anglo-American system, however deficient in its amateurishness, is superior to the German model precisely because of the Anglo-American commitment to political liberty. Here is what Wilson says: 

Of course all reasonable preference would declare for this English and American course of politics rather than for that of any European country. We should not like to have had Prussia’s history for the sake of having Prussia’s administrative skill; and Prussia’s particular system of administration would quite suffocate us. It is better to be untrained and free than to be servile and systematic. Still there is no denying that it would be better yet to be both free in spirit and proficient in practice.

Who could deny the truth of that? American politics in the late nineteenth century was outrageously inefficient and corrupt. We did in fact require a major updating of bureaucratic professionalism, and thank God Wilson et al. gave it to us. Would we rather be ruled by Tammany Hall-style machine corruption and bossism? Wilson is attempting to bring a spirit of bureaucratic professionalism into the American regime without abandoning our core commitments to individual liberty.

2. On natural rights

Justice Thomas writes:

Progressives strove to undo the Declaration’s commitment to equality and natural rights, both of which they denied were self-evident. To Wilson, the inalienable rights of the individual were “a lot of nonsense.” Wilson redefined “liberty” not as a natural right antecedent to the government, but as “the right of those who are governed to adjust government to their own needs and interests.” In other words, liberty no longer preceded the government as a gift from God, but was to be enjoyed at the grace of the government. The government, as Wilson reconceived of it, would be “beneficent and indispensable.”

Nothing quoted provides evidence for the claim that Wilson rejects equality. But does Wilson actually say that inalienable rights were "a lot of nonsense?" No he doesn't. This is a straightforward misrepresentation. Here's what Wilson says in his 1908 Constitutional Government in the United States:

No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle. The rights of man are easy to discourse of, may be very pleasingly magnified in the sentences of such constitutions as it used to satisfy the revolutionary ardor of French leaders to draw up and affect to put into operation; but they are infinitely hard to translate into practice.

Again, who could possibly disagree with any of that? There is indeed a great deal of nonsense talked about as inalienable rights! Wilson's explicit target here is the constitutions written up by the French revolutionaries, constitutions not typically celebrated by the likes of Justice Thomas. The general point Wilson is making is that a proclamation of fundamental rights is not the same thing as establishing law or a constitution. Justice Scalia made much the same point. Like Woodrow Wilson, Justice Scalia insisted that glittering declarations of rights do not a constitution make--the quality of a constitution lies in its structural design.

It is true that Wilson is somewhat wary of appeals to natural rights. In context, perhaps he has in mind the libertarian constitutional right to contract invented by the Lochner Court. Like Justice Thomas, Wilson is hostile to the imposition of new constitutional rights by judicial fiat. It is also true that Wilson prefers to construe the rights of the US Constitution as wise, prudential, just measures to secure individual liberty. In this way we return to Wilson's fundamental Burkeanism, a defense of the inherited rights of Englishmen and a critique of the speculative natural rights of the philosophers. 

For Wilson, the American Constitution secures individual liberty in part by codifying those rights, but primarily by granting to the people broad discretion over the shape of their government. It is true that Wilson is broadly skeptical of a rights-centric approach to constitutional interpretation. In this way, he follows in a long tradition of English Whiggism that is skeptical of individual rights against a properly constituted republican government. Jud Campbell has argued that a version of that constitutional theory characterized many of the founders themselves. But setting that deeper point aside, it is clear from a fair reading of Constitutional Government that Wilson is in favor of the established rights of the American constitution and is wary of philosophical inventions of new rights by the courts.

It is true that Wilson says political liberty is "the right of those who are governed to adjust government to their own needs and interests." How Justice Thomas moves from that to saying that liberty is no longer a God-given right but is now to be "enjoyed at the grace of the government," I do not know. It is worth noting that Wilson was more of an orthodox Christian than most if not all the canonical founders. Wilson in these pages is thoroughly Burkean. He quotes Burke constantly. He defends the tradition of English liberties from Magna Carta onward. His recurring point is that government must be made to serve the people, and not the other way around.

Thomas takes issue with Wilson's remark (an obscure reference to his textbook, The State) that the state is a "beneficent and indispensable organ of society." Again, do we deny that? Do we think we can do without the state? Is Justice Thomas an anarchist? 

3. Wilson's alleged contempt for the people

Justice Thomas writes:

You will not be surprised to learn that the progressives had a great deal of contempt for us, the American people. Before he entered politics, Wilson would describe the American people as “selfish, ignorant, timid, stubborn” and “foolish.” He lamented that we “do too much by vote” and too little by expert rule. He proposed that the people be ruled by administrators who use them as “tools.” He once again aspired to be like Germany, where the people, he said admiringly, were “docile and acquiescent.”

Before turning to the quotations, it is worth noting the two-pronged attack on Wilson. First Wilson is attacked for granting the people the right to "adjust government to their own needs and interests." That is, he is attacked for being too democratic and insufficiently attentive to the natural-rights limitations on democracy. Now Wilson is attacked for being anti-democratic, for having disdain for the people and stripping them of their right to self-government. Justice Thomas would be better served by sticking to one of these two lines of critique. 

Yes, Wilson describes the people as "selfish, ignorant, timid, stubborn" and "foolish." Here's the full quotation from "The Study of Administration":

In government, as in virtue, the hardest of hard things is to make progress. Formerly the reason for this was that the single person who was sovereign was generally either selfish, ignorant, timid, or a fool,–albeit there was now and again one who was wise. Nowadays the reason is that the many, the people, who are sovereign have no single ear which one can approach, and are selfish, ignorant, timid, stubborn, or foolish with the selfishness, the ignorances, the stubbornnesses, the timidities, or the follies of several thousand persons,–albeit there are hundreds who are wise.

Wilson's point here is that we cannot entrust absolute sovereign power in either the hands of the one or the many because both the one and the many are liable to the vices that afflict mankind. I agree, and I imagine every founder would agree too. I find it curious that Justice Thomas disagrees. Wilson's "contempt" for the people is no greater than that of our founders who designed a system of government specifically so that the combined selfishness, ignorance, timidity, stubbornness, and foolishness of the people would not be given absolute power. Madison in Federalist 10 famously speaks of the factiousness inherent in human nature, our tendency to succumb to pride, fanaticism, and the libido dominandi. Does Justice Thomas think the American people lack vices?

Does Wilson lament that we "do too much by vote?" Yes. And in late nineteenth century America, we were doing too much by vote. One of Wilson's targets here is the elected plural executive--he is a partisan of the short ballot. For precisely the reasons Publius rejected the plural executive at the federal level, Wilson rejects it at the state level. We should not be electing attorneys general and chairmen of the federal reserve. Wilson favors a competent bureaucracy that answers to an elected executive as authorized by an elected, bicameral legislature. 

Does Wilson say the voters must be "tools" in the hands of the administrators? I have no idea what the reference is. But here's one thing I know Wilson did say:

What I fear, therefore, is a government of experts. God forbid that in a democratic country we should resign the task and give the government over to experts. What are we for if we are to be scientifically taken care of by a small number of gentlemen who are the only men who understand the job? Because if we don’t understand the job, then we are not a free people.

Does Wilson demand that Americans become "docile and acquiescent?" No he does not. Here's the full quotation:

a public which is so modest may at least be expected to be very docile and acquiescent in learning what things it has not a right to think and speak about imperatively. It may be sluggish, but it will not be meddlesome. It will submit to be instructed before it tries to instruct. Its political education will come before its political activity. In trying to instruct our own public opinion, we are dealing with a pupil apt to think itself quite sufficiently instructed beforehand.

To which I say amen. Wilson does not make an idol of public opinion, nor do I, nor do the Founders. Wilson says that public opinion must be instructed and tutored. Would Justice Thomas prefer a wild and savage public? Would he have us ruled by the Gallup Poll? Or would he, like Wilson and Publius, prefer constitutional measures that "refine and enlarge" the public views?