Notice & Comment

New Democracy and the Problem of Legislative Discretion, by Jane Manners

*This is the eleventh 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.

Thomas Cooley is only a minor figure in Bill Novak’s field-shaping book New Democracy: The Creation of the Modern American State. A chief justice of the Michigan Supreme Court, one of the first faculty members at the University of Michigan’s law school, and the author of the most influential constitutional treatise of his day, Cooley appears in New Democracy as the first chair of the Interstate Commerce Commission, the transformative federal agency established in 1887 to regulate the railroads, and an enthusiastic promoter of reformers’ larger regulatory project. So readers might be surprised to learn that Edward Corwin would later describe Cooley’s treatise as “strongly penetrated by the gospel of Laissez Faire”—one of the central myths of the American past that Novak sets out to debunk.[1] These positions may at first seem irreconcilable: how could such an important player in the emergence of the modern regulatory state promote such an anti-legislation philosophy?

But to Cooley, these positions were entirely consistent. An equalitarian Jacksonian Democrat, Cooley was a strong believer in the police power.[2] What he opposed was special legislation–governmental gifts to favored, well-connected groups or classes, granting unique privileges and tying the hands of future legislators. In People v Salem, an 1870 opinion striking down a municipal tax designed to support a privately-owned railroad on the grounds that its purpose was insufficiently public, Cooley distinguished between “public purpose” as a restriction on taxation, which he thought should be construed narrowly, and “public purpose” for regulation or eminent domain, which he thought had a broader meaning.[3] In his constitutional treatise, he wrote that 1819’s Dartmouth College v. Woodward, which corporations used consistently throughout the first part of the 19th century to prevent regulation in the public interest, “created some of the most enormous and threatening powers in our country” and “allowed some of the great and wealthy corporations having greater influence in the country and upon the legislation of the country than the states to which they owed their corporate existence.”[4] To Cooley, corporate concentration was an evil that legislatures, with their blunt tools and susceptibility to corruption, were ill-equipped to solve. Instead, Cooley looked to regulation by commission as a way to police the public good without loosening what he viewed as essential constitutional and doctrinal restraints on legislative discretion.

Cooley’s political philosophy—an abiding democratic faith combined with a profound mistrust of legislatures—illuminates a theme that runs quietly through Novak’s bold retelling of the making of the modern American state: the extent to which the democratic reforms Novak describes were driven by the specter of legislative corruption. Over six chapters, Novak focuses his readers on the democratic impulse behind dozens of sweeping reforms in American governance in the period between the Civil War and the New Deal. The creation of national citizenship, the muscular exercise of the police power, the growth of public utility law, and the rise of administration at the state and national level: Novak shows that reformers in each of these areas were inspired by a vision of democracy both procedural and substantive.  Novak’s central claim—that the modern American state did not suddenly emerge, fully formed, at the start of the New Deal but was instead built over decades of steady, democratically-inspired reform—is a powerful rebuttal of the charge that modern bureaucracy is fundamentally oligarchic. Instead, Novak reminds his reader, states and later the nation built up their regulatory capacity largely to escape the threat and reality of legislative corruption. “Political corruption—and the pursuit of selfish economic advantage through the democratic public sphere—was seen as the central problem confronting American democracy at the turn of the century,” Novak writes. “And time after time, administration was offered up as a distinctly democratic solution.”[5] Through administration, reformers of the era believed, the state could most effectively advance the distributive aims of substantive democracy while avoiding the ineptitude and corruption of the legislature.

What is a proponent of active government to make of this argument? Political corruption was an urgent problem, regulation by commission an ingenious solution. And yet, the charge of legislative corruption was a double-edged sword. For reformers like Justice Cooley, it led to an embrace of regulation on the one hand and of laissez faire constitutionalism on the other, along with other discretion-constraining reforms like the public purpose doctrine—reforms that made it harder for legislatures to engage in lawmaking of any sort, corrupt or otherwise. Such measures sometimes ended up complicating later reform efforts, as railroad expert Charles Francis Adams, Jr. lamented in his 1871 article “The Government and the Railroad Corporations.” In many states, he explained, constitutional provisions barring special legislation had stymied effective rate regulation. Adams wasn’t opposed to such reforms, which he explained had been adopted by a number of states beginning in the middle of the 19th century to put an end to the fraud and legislative confusion generated by such exceptional treatment. But, Adams wrote, the reformers who had pushed through such private law prohibitions had failed to recognize that “no general law can be framed which will meet the exigencies of a whole railroad system in all its manifold details.” One line might derive 90% of its revenue from freight, or cross a thinly populated mountainous region; another might serve densely populated manufacturing towns and carry mostly passengers. How could one general rate law meet both lines’ needs?[6]

New Democracy does not dwell on the problem of legislative discretion, beyond addressing the massive, harmful expansion of social policing that resulted from legislatures’ efforts to confront such so-called pathologies as “feeble-mindedness,” prostitution, unwed motherhood, and delinquency. And yet, the tension between reforms predicated on the dangers of legislative discretion and the centrality of that same discretion to the effective exercise of the police power is a central dilemma for democratic reformers, then as now. Unquestionably, political corruption diminishes legislative efficacy and corrodes public faith in government, and progressives today would do well to heed Novak’s reminder that anger at legislative giveaways to elite interests has long been a key part of the political and conceptual groundwork for more regulation, not less. But reformers must also weigh the benefits of such an approach against its possible costs, which can come in the form of reduced legislative capacity and heightened political skepticism. “One cannot help but worry,” Novak writes in his conclusion, “that contemporary America is being systematically de-democratized,” leaving us “dangerously too close to living again in what Hannah Arendt called ‘dark times’ – periods in which…people ask no more of politics than that it serve personal, private, and ultimately ‘petty’ interests.” Both a government that is neither corrupt nor perceived to be so and a legislature empowered to legislate for the public good are essential to persuading the American people to look to politics for more than petty interests. As the reformers of Novak’s account remind us, the trick to this essential re-democratization of society is to strike the right balance between legislative empowerment and constraint, using the tools of both legislation and regulation to serve the ends of procedural and substantive democracy.

Jane Manners is an Assistant Professor of Law at Temple University Beasley School of Law.

[1] Edward S. Corwin, Constitutional Revolution, Ltd., 86-87 (1941).

[2] For an excellent exploration of Cooley’s political philosophy, see Alan Jones, Thomas M. Cooley and “Laissez-Faire Constitutionalism”: A Reconsideration, 53 J. Am. Hist. 751 (1967).

[3] People v. Salem, 20 Mich. 487 (1870).

[4] Cooley, Constitutional Limitations (1890), qtd. in Jones, supra note 2, at 755.

[5] William J. Novak, New Democracy 238 (2022).

[6] Charles Francis Adams, Jr., The Government and the Railroad Corporations, 112 N. Am. Rev. 31, 54 (1871); see also Naomi R. Lamoreaux & John Joseph Wallis, General Laws and the Mid-Nineteenth-Century Transformation of American Political Economy: Massachusetts, New York, Indiana, and Beyond 22–23 (Oct. 4, 2019) (unpublished manuscript), []

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