Notice & Comment

Constitutionalism and New Democracy: Two Questions, by Ashraf Ahmed

*This is the sixth 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’s New Democracy, like his first book The People’s Welfare, is a characteristically learned, conceptually sophisticated, and expansive history of the American regulatory state. This time, however, instead of defending a “strong” early American state operating largely through the common law, Novak chronicles the emergence of a recognizably modern, national administrative state. His story roughly spans the aftermath of the Civil War to the election of FDR in 1932; this means, Novak tells us, that “much of the heavy lifting in terms of the creation was done before the so-called Hundred Days.” (264). Importantly all of these major transformations—more inclusive citizenship, an expanded police power, the notions of public utility, antimonopoly, and democratic administration—amount to “nothing less than the beginning of a new and modern democracy” (9). New Democracy, as Novak conceives it, was far less formal and spare than Louis Hartz’s “classically liberal state’ (6) and much more experimental and “complete and substantive democracy” (19). During the early twentieth century, theorists of democracy like John Dewey, Herbert Croly, and others moved beyond a purely procedural notion of democracy and its fixation on “voting and officeholding” to a view of democracy “as a way of life” that “implicated due regard for the welfare of each and every member of the community” (20). This thicker notion of democracy envisioned “the state as an important appurtenance of democratic possibility” (21). In other words, the political economy of a new democracy required a powerful, national administrative state.

One could write articles (and some surely will) responding  to Novak’s recovery of pragmatist democracy and its importance for public law. Here, however, I’ll briefly focus on two questions: (1) What impact, if any, might a revived and broadly pragmatist conception of democracy have for the current attacks on the administrative state; (2) What broader lessons might reformers draw from Novak’s historical reconstruction? While the answer to the first question might be lamentably limited, the response to the second suggests that administrative law reform be bold, creative, and less bound by incrementalism.

For the first question, it helps to begin by observing that the institutional actor most responsible for the current assault on agencies is the Supreme Court and its critique has sounded in separation of powers concerns. While Congress has not reduced the scope and powers of federal agencies in any meaningful way, the Court has systematically placed the administrative state under effective probation. For instance, recent presidential action has focused on exercising stronger control over agency heads. And the Supreme Court has smoothed the path from presidential administration to a unitary executive (indeed, Justices Thomas and Gorsuch have urged the Court to overrule Humphrey’s Executor, which given recent decisions is now vestigial). Even more provocatively, the Court has taken steps to resurrect non-delegation doctrine. Either via the Court’s full embrace of “major questions doctrine”—a statutory canon meant to make sure that Congress really meant what it said—or potentially through a direct revival of a stringent non-delegation test, the direct result is an administrative state that perpetually lives under a judicial sword of Damocles.

For the intellectual architects of this doctrinal shift and their judicial contractors, these developments represent a constitutional return to form. After a century of delegation running riot the Court is finally restoring the original separation of powers and if not excising agencies entirely, limiting their future reach and placing them firmly under executive supervision. Of course, this restoration comes with its own political economy that strongly resembles the minimal, night watchman state whose historical pedigree Novak and many other historians have done so much to debunk.

So what can Novak’s account of “new democracy” provide for directly rebutting the current attack? Unfortunately, on my reading, not much. This isn’t a problem with Novak’s important book and broader scholarly project; instead it issues from the nature of the current debate, namely whether the administrative state is constitutional at all. For decades we haven’t had to worry about this question in its starkest form; even during its incept, skeptical lawyers had built procedural safeguards that kept bureaucracy in check. But now the question and its answer is different because constitutional theory and its relationship to administrative law is different. The most pressing practical questions in administrative law are essentially constitutional questions.[1] As my colleague Kate Andrias notes in her post, scholars are already engaged in this debate and have provided exhaustive documentation of administrative action in the early Republic though that work has not had much traction at all with conservative scholars and judges. The current debate is fundamentally hermeneutic by way of history: did X doctrine or practice or something sufficiently similar exist at the Founding? If not, then it is unconstitutional. Novak is up to something different—very valuable nonetheless—but different: what were the intellectual and institutional transformations that comprised the rise of the modern administrative state and what idea of democracy did they aspire to?

All of this is to say that New Democracy can’t directly respond to the lawyer’s debate because that conversation is so narrow and its terms of debate so fixed by socio-legal currents largely untethered to the merits and demerits of different interpretive schemes and historical scholarship. I’m skeptical Novak would want to enter that particular game anyway, since it’s increasingly clear the house always wins. In fact, there’s good evidence internal to Novak’s book that highlights its distance from current debate. Aside from the chapter on citizenship and the Reconstruction Amendments, the Constitution is largely absent, aside from a very brief discussion of key constitutional critics like Charles Beard and Louis Boudin (103-4). For “new democracy” to flourish, judges and formal constitutionalism (of which the most influential strains of originalism are) had to give way. For anything like that to happen again today, we’d need the same.

All of this points to the second question of Novak’s relevance for reformers. Here, Novak’s book suggests that current reform eschew incrementalism for broad institutional imagination. The “new democrats were not ‘tinkerers,’” Novak reminds us, and they insisted on transforming the very structure of everyday life through political agency and sweeping institutional design. Of course, none of this would be possible without the groundswell of democracy in the streets. We don’t have that “sprawling social movement” and that work requires much more than scholarship. But alongside that work, scholars can, like their Progressive forbears, offer a different form of realism than what dominates today. Such realism would involve clarity about the enormous stakes of our contemporary problems and the scale of solutions needed to solve them: figuring out what’s necessary and making that possible, rather than sacrificing the former to the latter.

Ashraf Ahmed is an Associate Professor of Law at Columbia Law School.

[1]In my view, this is an unfortunate development and speaks to constitutional theory’s capacity to colonize and cannibalize vast swathes of law given sufficient interpretive enthusiasm and imagination.

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