*This is the second post in a symposium on William Novak’s New Democracy: The Creation of the Modern American State. For other posts in the series, click here.
Over six chapters, William J. Novak’s soon-to-be classic New Democracy tracks the evolution of six instrumentalities of the early 20th-century American state—citizenship, police power, public utility, social legislation, antimonopoly regulation, and democratic administration. To this extraordinary book, I would have added a seventh, on the central figure Progressive-era reformers envisioned at the helm of the massive state apparatus they built: the presidency.
Over the length of New Democracy, the period spanning from 1866-1932 is conclusively established as “the second great act” of state-building in the history of American democracy (1). “Society constantly gives birth to new needs,” wrote Alexis de Tocqueville, “and each one of them is for the government a new source of power” (218). The rise of the business corporation in postbellum America brought new needs—chief among them mounting material deprivation and endemic political corruption—and new forms of state power to meet them. Rejecting the Hayekian view of bureaucracy as “the first step on the road to totalitarianism,” Novak emphasizes the modern administrative state’s democratic foundations. Against a “carnival of legislation for the benefit of the few,” democratic administration would resuscitate the ideal of legislation for the public benefit (221). And against a baseline of rising economic inequality and precarity, administration would serve the larger goal of democratic self-government insofar as it could “achieve a more just distribution of power and resources in a democratizing and modernizing society.” (220)
Novak’s account leaves off here, but generations of progressives had yet another reason to view the modern administrative state as a vehicle for democratic redemption: it was the American president that headed it. Simultaneously the head of party, chief administrator of the nation, and the only political actor elected by the public as a whole, the president appeared to unite in his person contrasting ideals of democracy and meritocracy, responsiveness and decisiveness, inclusivity and excellence. Just as in Novak’s telling, diverse threads of progressive thought culminated in a grand project of state building, so, too, did nineteenth-century thinkers from various corners converge on executive branch reform as a solution to the nation’s problems. (In forthcoming work, I tell this story in greater detail.)
There were postwar nationalists like Sidney George Fisher, who viewed the American constitution’s rigid separation of powers as a serious defect and who recommended introducing some British flexibility to the art of governing by making the president more like a prime minister. There were those who traveled in elite artistic and literary circles, like editor E.L. Godkin, who lampooned the language of poorly drafted legislation and believed a bureaucracy staffed of “the best men” could do better as far as policymaking was concerned. There were those with experience on the Continent, like legal scholars Ernest Freund and Felix Frankfurter who, following Max Weber, viewed a rationalized administrative state as the hallmark of modernity, or William S. U’Ren, the Oregon state reformer who idealized Swiss direct democracy and tried to import the popular referendum and initiative as a way to bypass captured legislatures. There were rural farmers who, alarmed at their rising debts and eager to counterbalance the power of moneyed interests in the Senate, joined the bandwagon of the charismatic populist William Jennings Bryan. There were conservatives like William Howard Taft, who viewed legislatures as prone to wasteful spending and believed governmental economy and efficiency demanded presidential administration, instead. There were urban progressives like Jane Addams who, seeing the potential of a charismatic president to serve as a battering ram against party machines, joined the 1912 third-party campaign of Teddy Roosevelt.
And there was, of course, Woodrow Wilson, who as a professor of political science had argued that a modern America required a modern administrative state and a strong presidency to render its separated-powers constitution a little less separate, more unified, and ultimately, more friendly toward concentrated action in the name of progressive goals. Later, as president, Wilson delivered on this vision, taking advantage of large, disciplined Democratic majorities in Congress and his own skill as a party leader to produce a more disciplined legislative regime than any since the days of Thomas Jefferson. Some of Wilson’s own ideas about presidential leadership and the Constitution were idiosyncratic, but his turn away from constitutional forms, limited powers, localism and associationalism was typical of the period. In other words, like the modern administrative state, the presidency that emerged out of this period was a product of a far-reaching and profound critique, of the “crisis in democratic theory” (8) so vividly illustrated here.
In our own day (which, as Novak notes, many have likened to a “Second Gilded Age” (270)), many Americans still view the President much as the progressives did, as an antidote to a divided, weak and captured Congress (not to mention a reactionary federal bench siding in case after case with common-law rights of contract and property against regulation of the national economy). There are important differences, however: the administrative state is no longer ascendant, but chastened in the face of what some are calling a “New Lochner” jurisprudence (even if, as Novak shows, the original “Lochner court” was much more tolerant of social legislation than the myth suggests). And while the current Supreme Court has eschewed the pragmatic experimentalism of progressive constitutionalism, it continues to promote and protect presidential administration under the Constitution, even where the President himself turns against the old progressive values of expertise and impartiality. It is ironic, then, that if we compare the origin story Novak tells with that of the modern presidency, it is the presidency that, in its time, appeared to lack any one coherent constitutional philosophy that could legitimate its changed role. Generations of Americans seem to have placed their hopes for American democracy in the institution, for very different reasons and with overinflated expectations. In the end, the presidency may be a victim of its own popularity.
Andrea Scoseria Katz is an Associate Professor of Law at Washington University School of Law in St. Louis.