Conservatives, Progressives and the Regulatory State

Mark Graber

Some notes on Jack's interesting post below.

First, I should add that that I was being far too ahistorical when I asked readers to consider what would have happened had the union movement in the early twentieth century confronted more hostile legislatures and less hostile courts than was actually the case. I did not intend that to be a commentary on the details of constitutional politics before FDR, but I think the post could fairly, indeed, obviously be read that way. But having wandered down the path, let me toss some complications that suggest less determinacy to American constitutional development and a bit more path dependence.

1. Business conservatives during the late nineteenth century were more concerned with state than federal power. Howard Gillman makes this point in his classic 2002 APSR and Keith Whittington highlights similar issues in an essay on Lochner in the 2005 (2006?) BU Law Review. One reason was simply efficiency. Different state laws were placing roadblocks in the way of multistate businesses, Another was the belief that many states were likely to be more economically radical than the federal government. On the federal regulatory state, business conservatives were more ambivalent, or perhaps divided. Witness the constant fights over the tariff, which was a form of national economic regulation. There is a good deal of literature in American political development suggesting that much national "progressive" legislation from 1890 to 1930 had strong big business support (indeed, some may have been efforts to set national standards that big businesses could meet more easily than their small business rivals).

2. While progressive nationalists wanted increased national regulation, the Brandeis school of progressivism was deeply suspicious of national regulation and preferred state regulation outside of anti-trust. There is a reason why every progressive on the bench rejected the commerce clause argument in the NRA cases and why many persons regarded as leading progressives in the progressive era rejected major chunks of the New Deal (see Otis Graham, AN ENCORE FOR REFORM).

3. A generation of political scientists and historians, see Ken Kersch, Julie Novkov, Charles McCurdy, Gillman, and Whittington among many others, have suggested that the New Deal history of pre-New Deal America is largely fictional (Brian Tamanaha is working on the intellectual version of this). I am very confident that the history does not consist entirely of conservative business persons who favored laissez-faire (though some important figures fit this description) facing off against progressives who were anticipating the New Deal (and, again, some important figures fit this description). Beyond that, not having done the necessary research, I am less confident. None of this is to deny that conservative businesses opposed the New Deal and that a great many liberals wanted an expanded national regulatory state. But at least from my reading of the literature on American constitutional development before the New Deal, there were at least important strands of big business pushing for a more regulatory national state that would be controlled by conservative interests (arguably, a national state somewhat similar to the one we have today in some dimensions) and at least some progressives who feared that a more regulatory national state would do more for business than labor.

Perhaps the real question is whether there is something inherently progressive (by our contemporary standards) about a national regulatory state. I am actually inclined to think so, but there are lots of counterfactuals in American constitutional development.
Posted 3:11 PM by Mark Graber [link]