*This is the introduction to a symposium on William Novak’s New Democracy: The Creation of the Modern American State. For other posts in the series, click here.
For a generation, William Novak has been a major influence on scholarly discourses in legal history, public law, and American political development. Against the stereotypical narrative that American government before the 20th century simply provided infrastructure and then let private individuals make their own economic choices, Novak’s 1996 book The People’s Welfare: Law and Regulation in Nineteenth-Century America shows how American state and local governments between the Revolution and the Civil War coercively constrained private economic activity on matters like product quality, urban marketing, the risk of fire, the spread of infectious disease, and the vice of alcohol. In truth, argues Novak, there was never a break between some laissez-faire past and the regulated present, for laissez-faire never existed.
Yet Novak’s story of American governance is not one of continuity. Far from it. The pre-Civil-War regulatory regime, he finds, was mediated through local community and custom. The regulatory regime that arose after the Civil War and survives to this day was—and is—profoundly different.
The rise of that new regime—our regime—is the subject of Novak’s just-published book, New Democracy: The Creation of the Modern American State, which begins with the Civil War and concludes just before the New Deal. The emergent regime, unlike its localistic and custom-based predecessor, achieved remarkable levels of centralization, uniformity, and rationality—an approach that enabled and embodied a new kind of democracy, in which mass coalitions could form to make positivist governmental interventions of greater sweep, complexity, and efficacy than anything that had come before, with real potential to promote a wider distribution of resources and lessen personal deprivation and necessity. This is democracy defined in terms of ends, that is, substantive policies to reach egalitarian distributive outcomes. The book is thus a departure from accounts of the American state that center on liberal or constitutional constraints on democracy; Novak contends that law in the so-called “Lochner era” actually furthered the growth of public power more than obstructing it. The book is also a departure from accounts that define democracy less in terms of ends than means, such as majoritarian electoral procedures, or that understand the modern polity through the lens of elite bureaucratic governance.
What I’ve just said cannot capture the breadth and nuance of the book’s analyses and interpretations, nor the several debates it enters and controversies it will engender. Those tasks I leave to the twelve legal scholars and historians who, I’m pleased to say, have agreed to discuss Novak’s New Democracy on this blog over the next two weeks. Each day, we’ll hear from one or occasionally two of them, after which Novak himself will offer a response.
Nicholas R. Parrillo is Townsend Professor of Law at Yale.