Donald Devine, America’s Way Back: Reclaiming Freedom, Tradition, and Constitution

Book Review by Leonard P. Liggio, Atlas Economic Research Foundation, Washington, DC

Donald J. Devine, America’s Way Back: Reclaiming Freedom, Tradition, and Constitution (Wilmington, Delaware, ISI Books, 2013). The two subtitles on the book cover are: ”Proud To Be a Libertarian,” and “Celebrate Traditional Values.” The late lamented Georgetown University professor of government, George W. Carey, said of the book: “A brilliant analysis of the major factors that have contributed to our nation’s decline.  A very timely effort on perhaps the most critical issue of our time.”

The anti-hero of America’s Way Back is Woodrow Wilson. Wilson was one of the leading advocates of Progressivism in the United States and was enabled to implement his Progressive agenda when he became president of the United States. Wilson was able to enter the White House due to the split in the Republican Party when in 1912 former president Theodore Roosevelt ran against his chosen successor, President William Howard Taft. Wilson was re-elected in1916 against Supreme Court Justice Charles Evans Hughes when Roosevelt’s 1912 running-mate, Senator Hiram Johnson of California, caused his California voters to cut Hughes; and due to Socialist candidate Eugene Victor Debs’ (who receive one million votes in 1912) not running in 1916 to support Wilson’s claim to keep America out of the First World War. (Wilson went to war by the time of his second inauguration and imprisoned Debs for speaking against war bonds.)  Wilson pushed the draconian 1917 Espionage Act and the sizing of the nation’s railroads. The brilliant historian, John Lukacs, labeled Wilson as the great “world revolutionary” for destroying Classical Liberalism around the world. To Devine: “The end of the war saw a “return to normalcy” decentralization under Presidents Warren Harding and Calvin Coolidge, but that was soon followed by a revival of progressive centralization under Herbert Hoover and Franklin Roosevelt.”

Devine weaves Wilson’s Progressive agenda through the book, starting with Wilson’s return from studying in Prussia, impressed with Prince Otto von Bismarck’s Welfare State and the executive powers that made it possible. The expansion of the powers of the executive is a major theme in Devine’s study. The word Constitution in the subtitle is central to the argument presented by Devine. In particular, it is the United States Constitution as explained in the writings of James Madison, especially in the Federalist Papers. Madison’s writings are presented to clarify the powers enumerated in the United States Constitution in contrast to the expansion of powers usurped by the executive in succeeding administrations.  Devine sees Presidents Warren Harding, Calvin Coolidge, and Ronald Reagan as not following in Wilson’s Progressive foot-steps.  After noting that Reagan left the market free to solve financial issues, Devine continues: “Earlier, Andrew Mellon had implemented President Warren Harding’s “return to normalcy” from Woodrow Wilson’s tax and regulatory regime to produce the post-World War I recovery. He was probably correct, too, in his advice to President Hoover in the1929 crisis to let the market seek its own level, advice that Hoover rejected.”

Having a long career as professor of government at the University of Maryland, then as the director of the civil service in Ronald Reagan’s first term, and now as senior scholar at the Fund for American Studies, Donald Devine focuses on political and constitutional theory, and public policy. Central to his analysis is the Rule of Law, its role in America’s rise and its current decline. One evidence is the decline in the US rating in the 2010 Heritage Foundation/Wall Street Journal Index of Economic Freedom, from “free” to “mostly free” due to the policies of the administrations of George W. Bush and Barack Obama.

Devine sees an important source of the Rule of Law in the US in the influence of John Locke: “The philosopher who most influenced American ideas about society and government, John Locke – following a long Western tradition – made rule of law the defining characteristic of sound, free, and prosperous society. To Locke, individual freedom was first because it came directly from a Creator who made man free even to reject this God and his commands. No lesser authority or power could take life, freedom, or property from the created without the individual’s consent; these were moral rights that could not be altered by circumstance, time, power, or government.”

The libertarian theorist, F. A. Hayek, has contributed major studies of the Rule of Law. Hayek and Bruno Leoni have analyised the contrast between law and ephemeral legislation.  Legislation can be an impediment to the rule of law. Devine presents several examples, such as:

“The dirty little secret of the U.S. federal justice system is that if one does not have the evidence to convict a person of a crime, convict him of conspiracy. Everyone conspires with others on noncriminal matters – common conspiracy simply means working in secret for a common goal – so once it is allowed in a legal setting, it is shooting fish in a barrel to convict on “conspiracy.” Alone without an underlying crime.  … Until the nineteenth century conspiracy was not even considered a crime other than as an active conspiracy against the state, and it was not used generally until the twentieth century when white-collar crime cases against the welfare state became so numerous.  (Even today federal white-collar crimes are considered crimes against the U.S. government, not against the employer.) … Judge Learned Hand called conspiracy the “darling in the modern prosecutor’s nursery.”

Devine contrasts Wilsonian-New Deal Progressivism and its internal security apparatus, with the constitutional principles of the American Founding Fathers. As a strategy to challenge this Leviathan, he draws on the work of the political theorist and editor, Frank S. Meyer, In Defense of Freedom (Indianapolis, IN, Liberty Fund, 1996). Meyer’s strategy was based on individualism and tradition. Meyer’s thinking was influenced by the works of the Liberal historian, Lord Acton. There were the Hebrew Prophets as the first checks on political power which became a legacy of the Christian West. Meyer noted: “The doctrine of the Lateran Council (1215), central to the philosophical tradition of the West, proclaimed, after a thousand years of intellectual effort, the pure tension of the Incarnational unity, in radical differentness, of the material and transcendent. This is the mode of the West in its highest and most typical.” Earlier in England, the contest between Archbishop Thomas a Becket and King Henry II created the foundations for the Magna Carta of 1215. Devine adds: “There was no single place for power to reside other than in the individual and the institutions and traditions with which he identified. … The monarch continually resisted this decentralized diversity the limited their dreams of grandeur, but they depended on the wealth generated by the freedom this diversity created. They found it difficult to collect taxes, their subjects often demanding further concessions, as in the Magna Carta itself.”

Devine continues: “This limited monarchical power and unprecedented if limited degree of freedom in medieval Europe unleashed a creativity ignored by most modern historians. Historian Jean Gimple rightly recognized that the Middle Ages introduced “machinery into Europe on a scale no civilization had previously known.” Moreover, this historic level of productivity turned out to be “one of the main factors that led to the dominance of the Western hemisphere over the rest of the World.” Gimple added: “In the medieval era of growth, there were at least three … key groups: the landlords, who among other achievements  built the 5,634 water mills of the (medieval English) Doomsday Book, the Cistercians, who built the model farms and factories, and the bourgeois or self-made men, on whose ingenuity depended the financing of the expanding textile and other industries.” (Jean Gimpel,The Medieval Machine: The Industrial Revolution of the Middle Ages (New York, Barnes & Noble, 1976).

The Cistercians were a new monastic order (c. 1100), derived from the Benedictines (who were known for artistic, expensive churches and complex music). The Cistercians wished to exemplify poverty by establishing monasteries in less productive, hilly locations (unlike the rich wheat fields of the Benedictines). These undesirable locations became perfect for sheep ranches and by the end of the Middle Ages the Cistercian monasteries were considered the richest due to the heavy demand for their wool (sold at the Fairs of Champagne) in the great textile centers of Flanders and Italy. On medieval water and wind mills from 600 AD to 1500 AD, see Richard Holt (Fellow of the Institute for Advanced Research in the Humanities, University of Birmingham), The Mills of Medieval England (Oxford, Basil Blackwell, 1988).

Medieval decentralism was displaced by the militarism, centralism, and absolutism of 16th and 17th century’s divine right monarchies. England alone overthrew absolutism with the Glorious Revolution of 1688 and its Bill of Rights. Devine notes the failure of divine right France in competition with rule of law England as influential on intellectuals, such as Voltaire and Montesquieu:  “As the great analyst Montesquieu was shocked to discover, power separation, tension, individualism, and commercial productivity were the keys to future success, much as they had been before the monarchical centralization.” However, after the end of the Seven Years’ War (1763) French intellectuals turned against Anglophile individualism to Anglophobe xenophobia. Rooted in Thomas Hobbes, Jean-Jacques Rousseau (who hated Christianity “for its pluralism and divided power”) reintroduced centralism in French political theory. During the 1788s French thinkers wrote pamphlets critical of the new American state constitutions and the 1787 Philadelphia constitution because they continued the balance of powers and pluralism of the English colonial charters.  As noted by Edmund Burke, the French Revolutionary Convention denied tradition and individualism. It and Napoleon continued the heavy loses of human life of monarchical warfare. Alexis de Tocqueville emphasized the continuity between the Old Regime and Revolutionary and Napoleonic regimes.  Devine states:

“As Meyer observed about such utopias, the results of trying to return to cosmological unity were catastrophic. From the fall of Rome to the dynastic wars of the fourteenth century, a period of more than eight hundred years, decentralized medieval Europe lost perhaps two million lives from war and conflict…. From the beginning of the Hundred Years’ War to the Battle of Blenheim, or four hundred years, the divine-right dynastic utopias killed more than the whole medieval period in half the time. During the divine-right period, the Hundred Years’ War alone cost two to three million lives while the later Thirty Years’ War lost seven million more people in one –third the time. The modern secular utopias killed even more in a mere two centuries. The French Revolution and its wars led to 800,000 killed, and the Napoleonic Wars totaled almost two million dead. World War I nationalism resulted in fifteen million deaths, and … World War II totaled fifty-five million.  Communism’s Soviet Union cost fifty-five million of its own citizens’ lives as it launched its utopian dream.” Devine asks:

“Why is this history relevant to Americans? Do the dreams of Plato, Rousseau, Napoleon, or Lenin matter today? After all, that was Europe, which, Meyer concluded, had reached toward but “never achieved” breaking fully from the suffocating unity of cosmological thinking. But America is different, exceptional, is it not? …. Yet as Meyer also pointed out, America, too, had been “tempted always by the false visions of Utopianism.” The fight “against Utopian corrosion is the continuing history of the United States since its foundation, a struggle which continues to this day and which is not yet decided.”

Devine indicates the continuity of centralized absolutism from the French Jacobins to the Progressive professors who sought to over-ride the “Illogic” of the US Constitution.  “The Constitution goes against every conception of how government and society work. Historically, almost everyone had believed that someone must be in charge. As the professors put it, sovereignty must be vested somewhere. … But the U. S. Constitution is based on separation of powers, where no one power rules but where the different institutions check and balance one another’s power. The absence of a center place to resolve differences is the reason intellectuals of the Founding era (and every era since) predicted that the Constitution would fail. The drama of the Constitution is that such an “illogical” arrangement is in fact the world’s longest lasting.” To those who see the federal courts as immune to political pressure, Devine quotes William Howard Taft in 1895, who had been US solicitor general and then was a US appeals court judge (later US president and chief justice of the United States): “The opportunity freely and publicly to criticize judicial action is of vastly more importance to the body politic than the immunity of courts and judges from unjust aspersions and attack. Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be submitted to the intelligent scrutiny and candid criticism of their fellow men.”

The major turn away from the Constitution by the Progressives was the Welfare State. A major critic of the social destruction by the Welfare State has been Charles Murray. Devine notes: “In his book Coming Apart the political scientist Charles Murray finds four values most essential to economic success and happiness: industriousness, honesty, marriage, and religion. Surprisingly, although the upper classes were most attracted to the 1960s revolt against traditional values, their divorce rates were lower, martial happiness is higher, work rates are much higher, and out-of-wedlock births are a mere  5 percent.  They have even “held the line” on religiosity. As Murray puts it, however, they do not “preach what they practice.” The lower classes are the ones most affected by the erosion of these values.”

Among those attacking Classical Liberalism were two English theorists, T. H. Green and Leonard Hobhouse who advocated displacing negative liberty with positive liberty. According to Devine: “As Frank Meyer argued, the desire to assert control can come from traditionalists or utopians of many stripes. Traditionalist may try to recover some “pantheistic All” to recreate a virtuous order supervised by a reconstituted cosmological state. Or there can be a rush to something entirely new, “to impose a limited human design of perfection upon a world by its nature imperfect,” to use government power to establish a utopian version of freedom or justice as the end of society.” Devine continues:  “Meyer was particularly critical of those traditionalists he called the New Conservatives – as opposed to the old conservatism of the Founders – who were inspired by professors Clinton Rossiter and Peter Viereck. In the name of tradition, they blamed Western individualism and freedom for weakening the ability of the state to inculcate virtue in modern times. Meyer especially targeted Rossiter’s demand to reject the “indecent anti-statism of laissez faire individualism,” which the professor claimed had undermined support for both traditional virtues and a compassionate welfare state.”

Devine devotes further examination to constitutionalist tradition and Libertarian Constitutionalism. He sees value in the tensions between them.