Novak - New Democracy: The Creation of the Modern American State

NEW DEMOCRACY

The Creation of the Modern American State

WILLIAM J. NOVAK

Harvard University Press

Cambridge, Massachusetts

London, England

2022

Copyright 2022 by the President and Fellows of Harvard College

All rights reserved

Cover design: Graciela Galup

978-0-674-26044-3 (cloth)

978-0-674-27563-8 (EPUB)

978-0-674-27562-1 (PDF)

The Library of Congress has cataloged the printed edition as follows:

Names: Novak, William J., 1961 author.

Title: New democracy : the creation of the modern American state / William J. Novak.

Description: Cambridge, Massachusetts : Harvard University Press, 2022. | Includes bibliographical references and index.

Identifiers: LCCN 2021036818

Subjects: LCSH: DemocracyUnited StatesHistory19th century. | DemocracyUnited StatesHistory20th century. | United StatesPolitics and government19th century. | United StatesPolitics and government20th century.

Classification: LCC JK31 .N68 2022 | DDC 320.973dc23/eng/20211007

LC record available at https://lccn.loc.gov/2021036818

For Margie

In America, democracy follows its own inclination. We are being daily carried along by an irresistible movement towardwhat? Despotism perhaps, perhaps a republic, but certainly toward a democratic social state.

ALEXIS DE TOCQUEVILLE

The cure for the ills of Democracy is more Democracy.

JANE ADDAMS

B etween 1866 and 1932between the Civil War and the New Dealthe American system of governance was fundamentally transformed, with momentous implications for modern American social and economic life. Nineteenth-century traditions of local self-government and associative citizenship were replaced by a modern approach to positive statecraft, social legislation, economic regulation, and public administration still with us today. The last such formative transformation in the structure of American public life occurred in the late eighteenth century and was dubbed by Gordon Wood as the creation of the American republic. This later turn-of-the-century revolution in governance is best characterized as the creation of the modern American state. It was the second great act in the legal-political history of American democracy.

This book is a history of that transformation. Its main thesis is explicit in its title. This era witnessed not just an age of reform or a response to industrialism or a search for order. This juridical, governmental, and political revolution left no aspect of modern American life untouched or the same. To the contrary, it ushered in an American political modernity with which many Americans remain profoundly unreconciled to this very day.

This book explores in detail the basic building blocks of this second American Revolution. New conceptions of citizenship, constitution, nationhood, statecraft, police power, public utility, social police, antimonopoly, unfair competition, and social provision will be examined in turn for the insights they provide into this great transformation in public law and public policy. And the many lists and thicker descriptions of a multitude of laws, policies, and reforms that dot these chapters add historical concreteness and particularity to the general social and economic impact of this governmental revolution. The great legal historian Willard Hurst dubbed this transformation a significant watershed in the history of public policy in the United States, producing a country which by the nineteen-twenties bore little resemblance to its forbear. Public policy took on a content that was distinctive to the twentieth century. Though Hurst did not write a full-scale history of this legal, administrative, and regulatory revolution, he provided a short list of four broad areas of policy change that evoked the scale and scope of this modern transformation: (a) the new economy with its demands for more legal interventions in the marketplace: public utility regulation, collective bargaining, consumer protections, fiscal policy, and state planning; (b) the new scarcity generated by population increases, crowded conditions, and growing resource demands requiring greater attention to conserving human and natural resources; (c) the new securityphysical, social, emotional, and consumerapparent in such diverse policies as criminal law, welfare and insurance law, antidiscrimination law, and quality control; and (d) the new science and technology requiring a public policy more attuned to issues of education, private research foundations, and communications. The present book includes many other lists of social and economic policy innovation, but Hursts short one provides a fitting introductory glimpse into the new reach and range of the modern American state.

Now, of course, historical transformations of this size and significance do not escape the attention of modern historians and social scientists for very long. Consequently, the history of this particular period is the subject of an enormous and ever-expanding scholarly literature. The history of late nineteenth- and early twentieth-century law, state, and politics has never been more complete or sophisticated (as well as contested). But despite recent advances, important interpretive problems remain.

Some of these interpretive problems have long been on my scholarly agenda.New Democracy is the book I committed to writing in the conclusion to Peoples Welfare, and it is fair to see it as something of a sequel to that earlier volume, completing a legal history of the American regulatory state from the first days of the new republic to the onset of the New Deal. There is thus a necessary continuity of theme across the work as a whole. This book continues my long-term effort to debunk persistent and dangerous fallacies about an original American historical tradition defined primarily by transcendent precommitments to private individual rights, formalistic constitutional limitations, and laissez-faire political economy. In contrast, this project excavates an alternative American historical reality where public rights, popular lawmaking, and robust regulatory technologies take center stage in a narrative grounded in an examination of the actual practical workings and pragmatic public policy demands of a rapidly expanding and modernizing polity, society, and economy. Four interpretive themes are integral to this project as a whole: (1) the workings of the American state; (2) the substance of American democracy; (3) the pragmatic concept of the political; and (4) the consequence of American public law.

The American State. This project continues my effort to probe the distinctive and changing core features of the American state, showing concretely when and how the modern American state took shape and what made it different from what came before and after. Taking a more synthetic approach to statecraft and governance, it attempts to push past more partial views of the American state, limited to specific policy areas, individual state builders, administrative bureaucracies, or the federal government. It simultaneously attempts to move beyond abstract discussions or conceptual definitions of the American state per se. As John Dewey warned, The concept of the state, like most concepts which are introduced by The, is both too rigid and too tied up with controversies to be of ready use. The moment we utter the words The State, a score of intellectual ghosts rise to obscure our vision. The goal of this foray is not to define or debate the state but to show it as closely as possible in its minute operations at multiple levels of governance, in its changing technologies, and in its legacy of practical socioeconomic consequences. Legal change was absolutely central to this historical developmentas American statecraft was pulled from beneath the weight of common-law practice and gifted a more modern pedigree in legislation, regulation, and administration.