legal history, progressivism, racism, minimum wage, eugenics, cultural relativism, behaviorism
American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?
When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that they developed. The rise of Progressivism coincided with the death of scientific racism, which had been taught in American universities since the early nineteenth century and featured prominently in the scientific debate over Darwin’s theory of evolution. Eugenics, which attempted to use genetics and mathematics to validate many racist claims, was its last gasp. The most notable thing about the Progressives is that they were responsible for bringing scientific racism to an end.
One of the most powerful characteristics of the progressive State was its attentiveness to science – a characteristic that it retains to this day. When the Progressive Era was forming, however, genetic racism was the scientific model of the day, cutting across a wide range of disciplines and reaching people of all political persuasions, even into the most elite of American research institutions. By and large, non-Progressives were just as racist as Progressives and some significantly more so. Further, the Progressive period lay entirely within the southern era of Jim Crow legislated segregation, often making it impossible to identify particular racial attitudes in the New South as "Progressive" or simply as inherited features of long held southern racial ideas. The all important question for the historian is, Which racial ideas did the Progressives inherit from their predecessors, and which did they develop on their own?
Progressives did believe in a more active state, however, and racism supported by an activist legislative agenda can be much uglier than racism that is passively tolerated. One cannot characterize most of the segregationist, exclusionary, and other racist legislation passed during this era as "Progressive," however. Southern states actively regulated racial exclusion by statute, and all of the racial zoning laws sometimes attributed to Progressives were passed in formerly slave holding states. Whatever the ideological or scientific sources of these laws, they were supported by staunch anti-Progressives. The same thing is true of compulsory sterilization laws. For example, the Supreme Court Justices who voted consistently against Progressive labor protective and other regulatory legislation voted to uphold compulsory sterilization of mental "defectives." While many Progressives advocated for more restrictive immigration laws, nothing that was passed during the Progressive Era matched the explicit restrictions on Chinese immigration that came earlier, or the racist immigration restrictions enacted during the terms of anti-Progressive Presidents Harding and Coolidge after the Progressive Era had ended. Finally, the attempts to link Progressive support for minimum wage laws to racial exclusion fail because they misunderstand the objectives of the Progressive minimum wage commitment and, further, pick and choose a small number of idiosyncratic examples from an enormous economic literature.
Third, the one place where a sharp difference emerged between progressives and their various opponents was in the subsequent rejection of genetic racism in favor of more environmentalist, nurture-based models of human nature and development. More environmentalist views began to take hold in the social sciences in the 1910s and 1920s and began to change legal thinking in the 1940s. They found expression in a Supreme Court that was almost unanimously Democrat and self-acknowledged progressive. The result was gradual emergence of a division that has endured to this day, with progressives largely appearing as promoters of racial inclusion and diversity.
Hovenkamp, Herbert J., "The Progressives: Racism and Public Law" (2017). Faculty Scholarship at Penn Law. 1765.
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