*This is the third 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.
Bill Novak has written a remarkable book that debunks the myth that the American state was weak and unconcerned with providing for social welfare until it was transformed by the extraordinary leadership of President Franklin Delano Roosevelt. He shows with compelling detail that the New Deal was not a magical or anomalous moment, but rather came about because of legal, institutional, socioeconomic, and democratic “heavy lifting” that occurred over the course of the preceding seventy years.
But Novak’s book is not only an important work of legal history. It also provides glimmers of hope for those of us committed to a democratic future in the United States.
Hope about the future of democracy, and about the future of the administrative state, is hard to muster these days. Indeed, one might say that despair is the only reasonable reaction to recent events. At the end of June, as the planet reached record-high temperatures, the Supreme Court sharply limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants. The Court made clear that, when important social and economic policy issues are at stake, no longer will it defer to an agency’s reasonable interpretation of its statute; no longer will it assume that Congress intended agencies to be able to tackle the major questions facing society. According to the Court, separation of powers principles counsel against such deference.
While they were curtailing the federal government’s ability to tackle hard problems, the same conservative justices eviscerated women’s right to make decisions about their own bodies—and therefore to stand as equal citizens in our society—and they drew into question a host of other fundamental liberties, including personal intimacy. They also disabled states from addressing rampant, deadly gun violence.
For numerous reasons including constitutional structure, the filibuster, weak voting rights, gerrymandering, and the extraordinary influence of large corporations and wealthy elites in politics, Congress has been unwilling or unable to respond to the Court or to pass legislation addressing the most pressing problems facing the nation. It has not tackled climate change, raised the minimum wage, protected women’s reproductive rights, or pursued numerous other policies the majority of Americans favors. Meanwhile, evidence mounts about a coup attempt orchestrated by the former President, making clear the extent to which our most basic democratic institutions have frayed.
So against this background, how not to despair? How can Novak’s long-ago legal history offer any hope? In a post earlier this week, Sophia Lee also considered the contemporary implications of Novak’s account. She expressed concern that, in demonstrating the fundamental transformations of modern governance that occurred during the progressive era, Novak’s book could provide valuable fodder to the conservative critics of the administrative state, the very ones behind the recent expansion of the major question doctrine and, even more aggressively, the revivification of the non-delegation doctrine. She suggests Novak could have emphasized continuity more than revolution (and she rightly points out that there is a continuity story to be told).
But in my view, the book’s contemporary relevance derives not from its influence on those who are hostile to the administrative state. Indeed, other scholars have offered substantial evidence that non-delegation simply wasn’t a feature at the founding; early congressional grants of rulemaking power extended even to domestic regulation of private rights and private conduct. Yet, conservative attackers of the administrative state are not persuaded by those empirically grounded historical accounts. In short, Novak’s account, whether framed as a story of evolution or revolution, is unlikely to sway conservative Justices one way or another.
Rather, Novak’s book is of contemporary relevance because, in its careful excavation of a similarly challenging period in U.S. history, he provides a clearer picture of how the modern administrative state came about. In so doing, he offers those of us who are committed to building a democratic future in the United States inspiration about how to do the hard work—the “heavy lifting”—to make transformation possible again.
The history Novak illuminates shows that while the Court is important, focusing reform efforts exclusively or primarily on this institution is misguided. Reformers also need to engage and to innovate at every level of local, state, and federal government, across public and private law. He also shows that safeguarding democracy means more than shoring up elections, and that building effective administrative governance cannot be about protecting elite bureaucracy. Rather, his account underscores the possibility of administration in the actualization of everyday democratic governance. And it highlights the possibility of a government designed to promote not only formal democratic procedures but also substantive equality—based on the understanding that a more equal distribution of resources, material security and dignity, and social control of capitalism are part and parcel of the democratic project. Ultimately, Novak’s book offers inspiration (and caution) about what the goals of a new democracy might be and how to get there. Now, for the heavy lifting . . .
Kate Andrias is a Professor of Law at Columbia Law School.