*This is the tenth 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.
Novak’s New Democracy is a dazzling historical blueprint of progressive reform with utmost pressing relevance for our immediate future. The story of the New Deal as a paradigm shift from earlier thin state, Lochner era government has shaped the imagination of countless students of American law. As a recently naturalized American citizen initially trained in a social-democratic welfare state legal system (Israel – with its mix of civil and common law traditions), I wrote in early scholarship about “the anomaly of the American legal system, in which common law courts were developed before the full constitution of an administrative state.” New Democracy shows us that this myth of American administrative anomaly is not only misguided, but also dangerous. The persistent and false “secular theology”, as Novak calls it, is one that celebrates the American regime as one “about individual rights, self-reliance, voluntarism, entrepreneurship, anti-statism, private property, liberty of contract, and free markets.” A revisionist history liberates us from the constant uphill battle to justify a robust regulatory state which emphasizes substantive rights, egalitarian goals, and redistribution. Novak reveals that at least since 1866, these values were as American as apple pie. American democracy after the civil war becomes a new democracy that at the very least encompasses, and at best requires, the primacy of substantive equality as a governmental project.
At the same time that New Democracy diligently documents the progressive projects of the new democracy, it also provides compelling insights – fundamentally familiar to students of contemporary governance – about how the new regulatory state “involved a sprawling social movement built on a vast network of reform institutions, civic organizations, voluntary associations, labor unions, professional associations, universities, institutes, magazines, and newspapers.” In other words, effective regulatory governance inevitably involves multiple private and public stakeholders. As Kate Andrias suggested in an earlier post in this symposium, Novak reminds us that reform comes from a multilevel effort, rejecting the primacy of the courts in fueling progressive change. Still, Novak tells us that for this new democracy, “[l]ocalized, jurisdictional, and quasi-private rule making and office holding ineluctably gave way to a more centralized, political, and distinctly public vision of administration and administrative law.” Modernizing the administrative state to enable its public welfare goals meant the “proliferation, professionalization, centralization, and rationalization of administration”. These parallel historical developments in the forms and substance of the American regulatory state are fascinating and complex. They reveal the somewhat cyclical nature of democratic renewal and the continuous need to innovation and vary the techniques of governance.
It seems to me that those who need convincing on how to sustain a viable public vision of administrative law are not administrative law scholars, but constitutional scholars, who are still today invested in the primacy of the latter field over the former. Indeed, in earlier work, Novak refers to Ernst Freund’s views about an urgent need for “freeing of American public law from… the crippling dominance of constitutional law.” In labor policy, for example, Novak shows how robust delegation already existed in the late 19th century. Novak describes how “in the case of the relationship of employer and employees, the issue revolved around the reasonableness not of values but of labor practices.” Accordingly, a staggering array of labor issues came under the supervision of Wisconsin’s Industrial Commission: “safety, health, child labor, moral well-being, wage-bargaining, hours of labor, minimum wages for women and children, labor disputes, and free employment offices.” Indeed, Novak documents direct influence of Marxist thinking and European models of wage and hour regulation, child labor, antidiscrimination law, health and safety, workers’ comp, and specific occupational and industry rules. For example, a Wisconsin legislature sends a student to bring comparative work law wisdom from Belgium. Unlike what we work law scholars usually teach in employment and labor law courses about the pre-New Deal era, Novak shows how the new democracy didn’t just bring the establishment of worker compensation insurance systems as an administrative solution to unsympathetic courts and notorious tort doctrines. Instead, it brought regulations spanning the entire spectrum of work law. These reforms applied the same rationales to labor-capital regulation that were adopted for competition law, consumer law, and public utilities regulation: “a ‘fourth branch’ of state government—a ‘legislature continually in session,’ ‘an executive sharing with the governor the enforcement of laws,’ and ‘a court deciding cases that the judiciary formerly decided.’” Still very much relevant today for a nation continuing to tackle a global pandemic and with OSHA’s powers gravely questioned, Novak documents how, then, Wisconsin undertook “the most comprehensive programme of human conservation in any state in the Union. The state lays down the principle that every one has a right to be protected from the dangers, diseases, and exhaustion of modern industry. The laws enacted are a declaration, too, that the state has an interest in the health of its people; that property must be used so as not to injure humanity; that the purpose of organized government is to promote the well-being and working efficiency of its citizens.” Novak thus reveals that Lochner was in fact the anomaly – a reactionary response to massive on-the ground developments and paradigm shifts in a range of policy fields – rather than the paradigm of the era. Paradoxically, the New Deal, with its vision of labor unions collectively bargaining for better market conditions, could be seen as somewhat of a return to a vision of private ordering rather than regulatory top-down solutions to social welfare. Such are the twists and turns of form and substance of regulatory reform.
As we are – alarmingly – witnessing in recent years and months, the paradigms of the regulatory state are cyclical in nature, and form and substance – regulatory technique and goals – — are matrices that defy straightforward alignments. Populism and expertise, administrative methods and purposes, rules and rights, can pair in unexpected ways. Stepan Wood with a twist on Foucault, suggested that although legal scholars repeatedly attempt to sever the “king’s head,” the next generation always seems to find the head back on the sovereign’s shoulders: “Exploding, fragmenting or contextualizing the state, law, sovereignty, public, private and so on, have been regular features of criticism and innovation in the social sciences and law throughout the last century, so that proclaiming the ‘death of the state’ (or law or sovereignty) has become part of the ritual of renewal in discipline after discipline.” A historical account of the evolution of the regulatory state as the evolution of an egalitarian state risks perpetuating another secular theology – that a large active state is a progressive state. A large regulatory active administrative state can be one that is devoted to progressive causes or one that is invested in closing off the walls of trade and immigration, policing social mores and personal autonomy, or creating ever-growing barriers to enter into the skilled labor market through occupational licensing, permitting, and parsing every bit of human knowledge into intellectual and cognitive property rights. The pendulums of regulatory governance are history lessons in renewing the democracy deal by innovating the techniques of regulation in every policy field. And these lessons can – and do – serve anyone willing to learn, regardless of their political agenda. This is what makes New Democracy a must-read critical book for all students of public policy and an ever-green study of the paths of democracy.
Orly Lobel is the Warren Distinguished Professor and Founding Director of the Center of Employment and Labor Policy (CELP) at University of San Diego and author of The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs 2022).