Notice & Comment

Lessons from Novak’s New Democracy for Federal Administrative Law

*This is the ninth 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.

It’s a privilege to participate in this symposium on William Novak’s important new book New Democracy: The Creation of the Modern American State. New Democracy is an engaging, wide-ranging read on the history and development of the American state in the United States from 1866 to 1932. I join the chorus of the other symposium contributors in recommending New Democracy broadly to scholars of public law, including of course those interested in administrative law.

The other contributors have already covered so much ground. Here, I make three small observations about some of the lessons Novak’s New Democracy offers for the field of federal administrative law. These lessons are particularly important for those of us who teach administrative law and related courses. The changes in governance during this time period, as Novak explains (p. 2), “moved to the center of American history a modern legislative, administrative, and regulatory state of a vastness and complexity still being reckoned with in new law school courses on legislation and regulation.”

Revising the Anti-Administrativist Narrative

One of the main goals of New Democracy is to exhaustively debunk “the myth of the New Deal state.” Novak’s conclusion (p. 264) puts it best:

This book has offered up an alternative account of the rise of an activist, regulatory state in America, challenging the overweening centrality of the New Deal in the creation of modern America. In place of presidential prophets and promised lands, it has focused instead on the seventy years in the wilderness before darkness purportedly turned to light on March 4, 1933. Much of the heavy lifting in terms of the creation of a modern American state was done before the so-called Hundred Days. The reason the New Deal was possible as a response to the Great Depression was because of the legal, institutional, socioeconomic, and democratic revolutions of the preceding decades. It takes more than a financial crisis and a charismatic presidential candidate to create something like a New Deal.

Novak is successful in this project.

Among many examples in New Democracy, there’s a wonderful table (Table 6.1, pp. 229-230) that depicts the roughly 50 federal agencies Congress created between 1860 and 1932. To be sure, Novak recognizes that the federal regulatory state did not begin in the 1860s, drawing on the important work of Jerry Mashaw, Nick Parrillo, and others. But he seems to reject a gradual evolutionary story and instead labels this time period a revolution in the administrative state: “Despite deep historical roots in the American governmental tradition, the increased proliferation, professionalization, centralization, and rationalization of administration in the late nineteenth and early twentieth century amounted to a change in kind—a transformation nonetheless.” (p. 224) As Richard John notes in his contribution to this symposium, “That the administrative state emerged in this period, rather than before 1866, as a large and growing chorus of revisionist historians have implied, or after 1932, as an older generation of New Deal-centric scholars assumed, is Novak’s main historiographical contribution.”

In her symposium contribution, Sophia Lee captures the importance of Novak’s argument for current debates on the constitutionality and legitimacy of the modern administrative state. “Anti-administrativists,” as Gillian Metzger has colorfully labeled them, perhaps began their assault on the modern administrative state by focusing on the New Deal revolution, and Novak powerfully pushes back on that narrative. But, as Professor Lee explains, Novak’s framing of the Progressive Era as a revolution instead of an evolution will likely just feed into the anti-administrativist mood at the Supreme Court and elsewhere:

Novak’s book has landed after critics of administration shifted their gaze back to the Progressive Era, deeming it the moment of the United States’ fall from constitutional grace. They will, I expect, agree with Novak that what occurred in this period was a revolution in administrative law. But whereas Novak celebrates that transformation, critics of the modern administrative state seek its reversal. For them, the decisive break Novak embraces supports the modern administrative state’s illegitimacy and illegality.

Professor Lee disagrees with this revolution framing, viewing the evidence Novak presents as support for a more gradual evolutionary development. Either way, Novak’s book and the responses it has and will generate should play an important role in the unfolding debates on the modern administrative state at the Supreme Court, on Capitol Hill, and in the classroom.

Rethinking Accountability in Administrative Law

As the title of the book suggests, one of Novak’s overarching arguments in New Democracy is that “[t]he period from 1866 to 1932 was nothing less than an age of democratic administration.” During this period, “progressives turned to administration reform in an effort to resuscitate the democratic ideal of government for distinctly public rather than exclusively private, special, or pecuniary interests”—with “American public provision and social service [being] a centerpiece of this modern administrative revolution.” (p. 221)

Jed Stiglitz’s contribution to this symposium captures nicely some of the lessons New Democracy offers to current debates and scholarship on the role of accountability, public participation, and democracy in the regulatory state. New Democracy‘s “fuller notion of substantive democracy,” Professor Stiglitz explains, “sharpens the stakes and clarifies what is missing from so many of our debates of bureaucracy and democracy.” Federal agencies, in Professor Stiglitz’s words, “serve democracy both by facilitating responsiveness to public demands, and by helping to establish the preconditions for the lean democratic institutions to function meaningfully.”

Professor Stiglitz and I would no doubt disagree on at least some points about whether and how bureaucracy can and should enhance (new) democracy. But we agree that New Democracy sheds important new light and understanding on that debate. And, as Kate Andrias argues in her symposium contribution, Novak “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.”

Turning to State and Local Government Law

As someone who teaches both administrative law and local government law, I get discouraged when the field of administrative law too often ignores the rich lessons learned in the field of local government law. Refreshingly, Novak does not do that. (This should come as no surprise to regular readers of Novak’s work. As Nick Parrillo observes in his introduction to this symposium, Novak’s 1996 book The People’s Welfare: Law and Regulation in Nineteenth-Century America focused on state and local governments and how they shaped the “well-regulated society” from the founding through the Civil War.) Indeed, New Democracy is a model for how to meld the two fields to better understand developments in governance and administration.

Let me provide one example. As I worked my way through New Democracy and Novak’s argument about how the American state during the Progressive Era turned to administrative reform to enhance democracy, I couldn’t stop thinking about the parallel local government reforms during that era—in particular, the shift from Dillon’s rule to home rule in many American cities. So I was not disappointed when I got to Chapter 6, as this chapter on modern administration and administrative law explores that municipal innovation—in addition to many other developments at the federal, state, and local levels.

“For the chief architects of progressive administration and reform,” Novak explains (p. 240), “one of the key sites for failure of democracy and the eclipse of the public at the turn of the century was the American city.” This failure was due at least in part to the predominant view at the time that the city is a “mere creature of the state,” a “distinctly limited corporate body” with powers confined to those expressly granted by state statute. (p. 243) Dillon’s rule, after all, commanded courts to construe narrowly legislative delegations of power to municipalities to cabin municipal authority to self-govern and address problems unique to each city (outside of express legislative delegation).

During this time period, however, many states turned away from Dillon’s rule and embraced the “home rule” revolution. Under home rule, cities can exercise broad and flexible powers of self-government unless state law expressly prohibits them. In other words, home rule allows for local solutions tailored to local problems. As Novak argues (p. 246), “the administrative project of home rule and ambitious programs for the expansion of municipal services were essential components of a broad reform effort to create a truly public city in a modern democratic sense.”

This is just one example of how New Democracy turns to state and local government law to better understand how the modern administrative state as a whole evolved during the Progressive Era. Scholars of administrative law have much to learn from Novak’s ability to look at, and weave together, regulatory developments at the federal, state, and local levels to draw broader conclusions about the past, present, and future of the administrative state in the United States.

For these reasons and many others, I hope scholars of administrative law and regulatory practice will read New Democracy. And I look forward to seeing how Novak’s book sparks new and important discussions in the field of administrative law. This symposium provides a nice preview of the many discussions to come.

Christopher J. Walker is a Professor of Law at the University of Michigan.

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