A MODERN DEMOCRATIC STATE, IF WE CAN KEEP IT: Response to Commentators in the Symposium on New Democracy: The Creation of the Modern American State, by William J. Novak
*This is the twelfth and final 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 is truly an honor to have my new book New Democracy serve as the vehicle for these 12 diverse, thoughtful, and fully engaged commentaries on the history of American democracy and the rise of the modern American administrative and regulatory state. My special thanks to Nick Parrillo and the Yale Journal of Regulation for organizing this symposium and for selecting such a great group of smart and talented interlocutors. My response can only touch on a handful of the important issues constructively flagged throughout these extensive reviews. But I will carry so many other of these critical ideas and suggestions forward as I continue work on a multi-volume history of legislation, regulation, and administration in America.
And perhaps that’s where I should start, as I was especially gratified that so many of these reviewers read this book as I intended—as but one piece of a much larger and ongoing scholarly project. Both Nick Parrillo and Ashraf Ahmed rightly characterize New Democracy as a sequel to my 1996 monograph The People’s Welfare: Law and Regulation in Nineteenth-Century America which attempted to demonstrate “how American state and local governments between the Revolution and the Civil War” regulated and administered “private economic activity on matters like product quality, urban marketing, the risk of fire, the spread of infectious disease, and the vice of alcohol.” As Parrillo puts it, “there was never a break between some laissez-faire past and the regulated present, for laissez-faire never existed.” New Democracy continues that evolutionary history of regulation. “This time, however, instead of defending a ‘strong’ early American state operating largely through the common law,” as Ahmed puts it, I chronicle instead “the emergence of a recognizably modern, national administrative state” between the Civil War and the New Deal via major transformations in the law of 1) citizenship, 2) police power, 3) public utility, 4) antimonopoly, 5) social regulation, and 6) public administration. The “heavy lifting” of creating a new kind of social democratic state in the US, in other words, was largely done before the election of Franklin Roosevelt in 1932 and before the so-called “Hundred Days” that supposedly launched the “New Deal State.” Ganesh Sitaraman echoes Parrillo here, noting that New Democracy’s contribution “is to show how regulation is not something that happened to the laissez-faire market with the New Deal, but that market and state are intertwined and the laissez-faire period never existed.”
In something of that same spirit, I have already started work on a final, prequel volume in this larger trilogy, retooling for the first time as an 18th century historian so as to re-examine the American founding period from the perspective of what I have learned so far about past American legal traditions of legislation, regulation, and administration. Volume I, in short, will focus on what the very 1st American legislatures and administrative committees (of safety and inspection, no less) were actually doing as opposed to what the so-called “Big Six” Founders (Washington, Adams, Jefferson, Madison, Franklin, and Hamilton) were saying. As several commentators note, of late jurists and constitutional scholars have been able to ignore or deflect much recent learning about the actual history of regulation and administration in American history through fanciful flights into constitutional originalism or even an ancient English legal past. I aim to make those flights less comfortable or at least force a bit more time on the tarmac of actual history.
As New Democracy is but one piece of a larger project, there is some continuity of theme across this work as a whole. Both Orly Lobel and Richard John call out my penchant for debunking “the fallacies that bedevil our understanding of the history of American statecraft,” especially persistent and dangerous myths about an original and continuous American historical tradition defined primarily by transcendent precommitments to private individual rights, formalistic constitutional limitations, and laissez-faire political economy. The “anomaly of the American legal system,” Lobel calls it, propagating a “persistent and false ‘secular theology’” that “celebrates the American regime” as fundamentally about “individual rights, self-reliance, voluntarism, entrepreneurship, anti-statism, private property, liberty of contract, and free markets.” John correctly notes that “the primary foil for New Democracy” is a “wrongheaded triumvirate of ideas” that continues to obfuscate our understanding of the emergence of a modern American regulatory state in the 20th century: 1) the myth of a “weak” American state, 2) the myth of laissez-faire constitutionalism, and 3) the myth of Lochner and the New Deal State.
Lobel first confronted such narrative tropes as “a recently naturalized American citizen” trained in Israel’s social-democratic welfare state legal system. But for Americans of a certain age, training in this civic religion started quite early indeed. In New Democracy (especially in the chapter on police power), I associate early 20th century democratic state reformers with a larger American intellectual tradition called pragmatism or better yet, “critical realism.” But unfortunately for Americans who came of age near the end of the so-called “baby boom,” critical realism was no longer ascendant. Instead, in the wake of intense ideological struggles with right-wing and left-wing totalitarianism in World War II and the Cold War, late boomers were force-fed a steady diet of something known as “American exceptionalism.” Here American history was portrayed as a special, “city on a hill” “morning in America” alternative to the “foreign” police state traditions that ravaged mid-20th century Europe—American history as an almost sacred freedom narrative in which private rights, individual freedoms, herculean judges, and a distinctive and original written constitutional inheritance figured especially prominently.
Now, of course, as the contents of this symposium (as well as the impressive publication records of all its participants) make perfectly clear, we all know this rendering of American history to be something of a cartoon. But it is striking and worrisome that this caricature has continued to influence two generations of American political and constitutional narrative, as well as, Kate Andrias suggests, some of our most recent and portentous Supreme Court opinions. Indeed, such narrative tropes – “the pictures in our heads” Walter Lippmann called them in Public Opinion – account for some of the wild historical misconstruals (myths and fantasies) that continue to fuel our most volatile political and constitutional disagreements today, where so many Americans remain militantly and violently unreconciled to even the most modest of modern socio-economic (to say nothing of public health and safety) regulations.
But of special interest to readers of this journal, of course, is the degree to which American administrative law and statecraft are currently ground zero for this larger struggle between regulatory history and constitutional mythology. Richard John again cuts right to the chase on this issue with characteristically ebullient prose: “The administrative state, in Novak’s telling, is far from the ethically insidious, legally dubious, and disturbingly un-American protuberance on an otherwise healthy body politic that “deep state” critics ranging from Friedrich Hayek to Philip Hamburger have portentously warned us against.” “Rejecting the Hayekian view of bureaucracy as the first step on the road to totalitarianism,” Andrea Scoseria Katz suggests, I emphasize instead the modern administrative state’s progressive democratic foundations. As Jed Stiglitz, Chris Walker, and Jane Manners effectively elaborate, New Democracy attempts to respond to contemporary critiques of modern administration’s democratic deficit by recovering the earlier progressive commitment to “substantive” rather than merely procedural or “mechanical” democracy. This is a vision of democracy that, as Stiglitz puts it, “fulfills not or not only the lean institutional requirements of voting, but also for example a measure of equality in citizens, and one that implies the ability of the public to shape markets and counter a domineering private sector.” But as contemporary jurists increasingly cite “democratic accountability” as a justification for the re-invention of “the major questions doctrine and the non-delegation doctrine,” how can administrative commissions possibly be seen originally as sites of “democratic control?” Stiglitz responds, “An answer is that they do, but within a fuller notion of substantive democracy: they serve democracy both by facilitating responsiveness to public demands, and by helping to establish the preconditions for the lean democratic institutions to function meaningfully. Thus, what the reader may initially find jarring sharpens the stakes and clarifies what is missing from so many of our debates of bureaucracy and democracy.” The book thus tries to revise “the anti-administrative narrative” (Chris Walker’s term) by offering what Jane Manners views as a “rebuttal of the charge that modern bureaucracy is fundamentally oligarchic.” Progressives pursued administrative reforms across economic, social, and municipal arenas to combat the rampant capture and venal corruption within existing representative and governing institutions (legislative, executive, as well as judicial) and to reinvigorate the substantively democratic ideal of government for distinctly public ends rather than private, special, or pecuniary interests. Amid a Gilded Age “carnival of legislation for the benefit of the few” and “a baseline of rising economic inequality and precarity,” Katz observes, progressive democratic administration resuscitated an “ideal of legislation for the public benefit” in the hopes of achieving “a more just distribution of power and resources in a democratizing and modernizing society.”
Just as keenly as these authors grasp the main lines of argument and contribution in New Democracy, they also identify several areas and concerns for additional consideration and further debate. In their contributions to this Symposium, Sophia Lee and Kate Andrias identify a perhaps troubling ambiguity in New Democracy respecting emphasis on continuity or change: Was the creation of a modern American administrative and regulatory state a revolutionary or an evolutionary process, a matter of great transformation or longue durée? One of the challenges in writing this book is that I want to argue “both.” In The People’s Welfare and in my article “The Myth of the Weak American State,” I tried to clear space for the longer view – that laissez-faire never existed in US history and that a robust regulatory and administrative state (at local, state, and national levels) was as old as the republic, and as Orly Lobel puts it, “as American as apple pie.” In the future, I hope to extend that story back even further in time by turning to the American founding period. That said, like Jerry Mashaw and especially Nick Parrillo on the “salary revolution in American government,” I wanted to make sure that this particular book gave due attention to the explicit changes and transformations that classic social theorists like Marx, Weber, and Durkheim deemed crucial harbingers of modernity. As Alexis de Tocqueville observed early on, Americans long enjoyed the official capacity to regulate and administer things like local marketplaces, poor relief, wooden buildings, highway obstructions, quarantine, and health and safety nuisances. Indeed, the problem of a malarial pond in rural, premodern American might be easily solved utilizing nothing more complex than the judicially administered common law of private nuisance. But in the mass society and economy that accompanied industrialization and urbanization as well as communications and transportation revolutions, the public health-safety (as well as political-economic and social-welfare) hazards were of a different order, and some of the more local, familiar, and common-law regulatory and administrative techniques of traditional officials—“Dogberrys and Bumbles” Edith Abbott memorably dubbed them—proved glaringly insufficient, oft-times deadly in an era where life expectancy regularly trended below age 50. A revolution and transformation in American public law was the consequence and one of the primary histories I try to recount in this book. Indeed, fundamental change within continuity is at the heart of my public utility and antimonopoly histories where jurists drew on ancient common-law categories like common carriage to build a new regime of modern regulated industries law—which Sitaraman astutely observes, remains “important to policy debates today about the bounds of antitrust law and the possibilities for regulating tech platforms.”
The “useability” of the past and the lessons of history for present-day legal and political advocacy is also an issue joined by both Lee and Andrias. Lee poses the problem appropriately and directly: “Novak presents his book as shoring up the modern administrative state, and in many ways it does. Yet, he has also provided [in arguments about its novelty, transformation, and revolution] important fodder to those jurists and scholars who contest its legitimacy and legality.” I have two responses to this salient problem. First, I do hope that when New Democracy is read in the total context of the larger project, as well as with new histories of earlier forms of administration and regulation in the American founding period, that arguments about administration as outside “this Nation’s historical tradition”—a “foreign transplant” from “authoritarian soil” – will be more difficult to sustain. But more generally, I don’t think that our legal past can be successfully apprehended when mediated by a primarily strategic or forensic focus aimed at either presentist influence or short-run doctrinal payoff. In June 2022, the U.S. Supreme Court controversially elevated “history and tradition” to new heights of significance in contemporary constitutional jurisprudence, which I fully expect to see greeted with a ratcheting cascade of temporary law-office histories and polemical “history-sounding” briefs. But even in crisis times, I still believe the idea for a newly proposed Journal of American Constitutional History evidences a better long-run approach, privileging scholarship that genuinely tries to understand the past rather than efforts to distort it so as to impact present-day cases and controversies. As Andrias’s and Sitaraman’s contributions make perfectly clear, history can be a useful and important schoolhouse in present-day advocacy and policymaking, but only through less manipulative, good-faith, and critically educative methodologies. It is not an accident that John Dewey pinned his ultimate hopes for an open, progressive, and substantive democracy on education—a demos composed of equal, mutually-regarding, critically- and creatively-intelligent citizens: “Merely legal guarantees of the civil liberties of free belief, free expression, free assembly are little avail if the give and take of ideas, facts, experiences, is choked by mutual suspicion, by abuse, by fear and hatred.”
I also believe that for history to be most useful to the present in this broadly educative mode, it must be sufficiently general, ecumenical, and interdisciplinary. And here I would like to address the most pointed criticism of my book raised by both Laura Phillips Sawyer and Richard John. Both Sawyer and John highlight the word “granularity” in noting the book’s obvious appetite for generality over particularity. Sawyer’s criticism is straightforward and a not uncommon complaint in historical reviews: “The most significant difficulty with Novak’s legal-intellectual history is that the broad sweep of its thesis loses granularity—contingency, conflict, and compromise—that guided policymaking at the time.” And Sawyer is correct that in consciously choosing to write a synthesis of some 70 years of American legal development across multiple fields of public law (all while trying to fairly integrate legal, intellectual, political-economic, and social theory perspectives and literatures), I sacrifice some historical granularity for the offsetting benefits of trying to see the whole. Throughout this research, I was only too aware that I could have written a separate book (many have) on the subjects of each and every chapter of this volume: citizenship, police power, public utility, social legislation, antimonopoly, or public administration. Similarly, I could have evidenced more contingency and contestation (many have) by restricting the interpretive lens even more tightly and focusing on a single year (1912), a single case (Lochner), a single individual (Louis Brandeis), a single institution (the Post Office) or a single document (the Sherman Antitrust Act). Like the universe, history is composed of trillions upon trillions of “granules”—persons, places, things, events, causes, interests, ideas, words, letters, books—with the ever-present temptation to go ever more granular. My instincts are different, and Sophia Lee is simply correct that I’m not by nature a “splitter.” I’m closer to what she dubs an unreconstructed and unrepentant “swing for the fences, lumper.” I do acknowledge the necessity of particularity and precision in history, but one of the things I so admire about legal scholarship is its creative and stimulating capacity for generality. In legal history, Oliver Wendell Holmes, Jr. long ago endorsed “the large survey of causes”: “To see so far as one may, and to feel the great forces that are behind every detail—that makes all the difference between philosophy and gossip.”
The construction of a broad, interdisciplinary, and especially “critical-realist” approach to law is at the center of the story I tell in New Democracy. And it’s a vision of law different from the one that mostly preoccupies Richard John’s spirited review. For John, law seems primarily a matter of Concepts rather than People, Books rather than Actions, and Norms rather than Facts. While not an uncommon view outside the legal academy, such a perspective risks importing an almost pre-positivist, pre-realist, pre-Habermasian conception of law back into the very period when metaphysical and formalist renderings of doctrine and judging were first being subjected to sustained progressive critique. As Pierre Bourdieu observed long ago, law involves a rather distinctive set of ideas, words, and texts that bear an unmistakable force and action in the real world, having the power to produce immediate effects on people, places, and things simply by saying so – property is taken, families are separated, people are incarcerated, sometimes executed in the name of the law. As Robert Cover reminded us, legal interpretation takes place in a field of pain and death.
I hope my chapters bear out my own belief in this vein that Citizenship is not just a “concept,” Police Power is more than an “idea”, Public Utility is not a disembodied legal abstraction, and Judges are not neutral arbiters somewhere “outside” the State just calling “balls and strikes.” John is correct to point out that I consulted many books in the basic research for this project. But the books I chiefly relied upon were not filled with Olympian concepts or abstract ideas, rather they compiled quite specific statutes, ordinances, and bylaws (numbering in the thousands), highly particular court cases and outcomes and consequences (numbering on the tens of thousands), and syntheses of minute administrative rulemakings and adjudications (numbering in the hundreds of thousands) for use in literally endless practical conflicts and legal contests on matters of everyday human urgency. Different conceptions of law might also explain some differences of opinion with John about some of the more granular arguments in the book as well—arguments about the power of the early American state (I’ve heard of it), the importance of utilitarianism (Dewey deemed Bentham and Mill crucial sources for new liberalism), the significance of Walton Hamilton and the institutional economists (I write explicitly about both), railroad history bibliography (which I started reading in 1984), the early origins of public utility in common carrier law as well as the antebellum public works decisions of Lemuel Shaw (discussed in Chapter 3), and the not inconspicuous fact that public power was frequently exercised across U.S. history in “not entirely salutary ways” (the very reason I started the book with slavery, citizenship, racial discrimination, and civil rights while also choosing to talk about social welfare and social policing in tandem).
This issue of law-in-books versus law-in-action and in-context speaks directly to a final aspiration of this book—re-establishing the significance of a deeply-rooted American vernacular tradition of legal pragmatism, legal realism, and anti-formalism. That tradition was interdisciplinary to its core as law, philosophy, social thought, political economy and history all worked together to create a critical-realist foundation for modern social-science inquiry. And that tradition stands in stark relief to the recent neoliberal revival of more formalist and absolutist ways of thinking about the world—in law, forms like textualism, constitutional originalism, 1st Amendment fundamentalism, and the resuscitation of the nondelegation doctrine. Readers of this forum understand the great stakes. As Ashraf Ahmed observes, “These developments represent a constitutional return to form,” wherein “the intellectual [and judicial] architects of this doctrinal shift” restore “the original separation of powers, and if not excising agencies entirely, limiting their future reach and placing them firmly under executive supervision.” He notes that this great restoration comes with a vision of law and economy quite at odds with “new democracy,” resurrecting “the minimal, night watchman state whose historical pedigree Novak and many other historians have done so much to debunk.”
Consequently, as Kate Andrias laments, “Hope about the future of democracy, and about the future of the administrative state, is hard to muster these days.” And, indeed, despair might be “the only reasonable reaction” to our present troubles and travails. But I close the book by noting the heroic efforts of Hannah Arendt and Werner Jaeger to move beyond unspeakably “dark times.” And I hope with Andrias that this book’s excursion back into a “challenging period in U.S. history,” might offer a modicum of audacity to those already working hard to shore up the possibilities of a long-term “democratic future” for the United States of America. The Law and Political Economy (LPE) movement is currently hard at work rethinking the basic interrelationship of law, economics, legal education, the judiciary, and American democracy, broadly construed. And Ahmed here suggests the possibility of reformers once again offering a revitalized critical realism to counter the airy formalism guarding the libertarian, anti-democratic core of a recently manufactured American constitutional tradition: “Such realism would involve clarity about the enormous stakes of our contemporary problems and the scale of solutions needed to solve them.” It is admittedly a “heavy lift.” But is any other game worth the candle?
Professor William J. Novak is the Charles F. and Edith J. Clyne Professor of Law at the University of Michigan Law School.