Balkinization  

Wednesday, June 04, 2014

The History of the Early American State

Guest Blogger

William Novak


This post is part of an online symposium discussing Nicholas Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (Yale University Press 2013).

            It goes without saying that it is difficult to do justice to a book like Nick Parrillo’s Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 in a short blog post.  This a “big book” by every standard – pages, primary research, original interpretive significance.  It is a magisterial legal-historical accomplishment as recently acknowledged by the Willard Hurst Prize Committee of the Law and Society Association.  It is legal history and socio-legal scholarship as Willard Hurst imagined it might be.

            What I can try to do in a short number of words, however, is to gesture to what I see as just one of the big questions for which Parrillo’s research and writing is so important.  The area that I know best concerns the legal history of the American state.  And here I would just repeat what I said in a blurb for this volume that, together with his Yale colleague Jerry Mashaw, Parrillo is doing nothing less here than rewriting the history of the early American state.

            Lest one think that reckoning with a topic like “the state” is a simple endeavor, let me quote the latest leading theorist on this subject Pierre Bourdieu in his recently published lectures “On the State”:  “The further I advance in my own work on the state, the more convinced I am that, if we have a particular difficulty in conceiving this object, it is because it is . . . almost unthinkable. . . . This mysterious reality exists through its effects.  It is something that you cannot lay your hands on.”  It is, therefore, something of an achievement that Parrillo has indeed laid his hands so completely on the early American state in this book – writing a history of an administrative and regulatory state that begins so long, long before the more typically-highlighted invention of the ICC in 1887.

            The nature and power of the American state has confounded important commentators for more than 200 years now.  Hegel famously underestimated the American state, authoritatively declaring that it was not a “real State.”  And Tocqueville added his imprimatur to this dubious and exceptional stateless thesis by outlining a future trajectory wherein the American state only gets “daily weaker . . . being naturally weak, it gives up even the appearance of strength.”  Perhaps, like Bourdieu, they should have stopped at “unthinkable.”  For historical myths and illusions like this only make it harder today to reckon with an American present featuring the steady aggrandizement of executive, administrative, regulatory, emergency, carceral, penal, military, and war powers.


            Much of the difficulty in sizing up the American state over the last two centuries turns on what interpreters have chosen to see and not to see.  And it has also turned on how much (or rather how little) digging they have chosen to do in the primary historical sources to understand what they are seeing or not seeing.  As Morton Keller once complained to William Leuchtenburg, “To say that ‘there is much still to be learned about the nature of the State in America’ is . . . a major understatement. There is close to everything to be learned about the State.”

            Lately scholars have embraced a troubling tendency to talk about the American state as “hidden” or “invisible” or “out-of-sight.”  But, of course, such invisibility is in the eye of the beholder rather than the beholden.  Just ask a “recaptured” fugitive slave or a “removed” native American, or for that matter a free African-American citizen of Baltimore trying to travel to Missouri before the Civil War.  Was the American state invisible to the impoverished men, women, and children warned out of New England towns or condemned to poor houses by overseers?  Or try asking the poor chap who in the 19th century happened to come down with an epidemic disease and met with the full force of a state action that was anything but “out of sight” or “out of mind.”  Indeed, the “out of sight” in such cases was usually reserved for the most unfortunate victims of the American way of doing statecraft – those who too often have disappeared from the historical record.

            No, the power of the American state throughout its history has been all too apparent to anyone patient enough to keep the mythologies at bay and to wrestle with historical reality through the primary sources with the thoroughness of a Nick Parrillo.  Parrillo is a reality-based legal historian.  After reading Parrillo, it is too clear that the American state has been in plain sight all along – you just have to re-adjust your assumptions and wade deeply into the historical primary materials rather than relying on second-hand historical interpretations.  If you bring an ideal-typical theoretical model of the 19th century Prussian civil service to bear on the American materials (usually garnered through a quick gloss on Hegel or Weber or the most recent history of the fiscal-military state), you’ll probably miss the entire brave new world that Parrillo has meticulously uncovered from the bottom-up.  For this book recovers through exhaustive primary research a previously unknown world of private fees and bounties that dominated American governmental administration throughout the 19th century – everything from district attorney fees for successful prosecutions, tax “ferret” fees for detecting tax evaders, naval bounties for captured ships, land officers fees for homestead applications, government doctors fees for deciding on veteran's benefits, etc., etc., etc.  In extraordinary detail and with authoritative analytical rigor, Parrillo also explores the multiple causal reasons for and implications of the decline of this private fee and bounty regime and the shift to a public salary system that comes to dominate American public governance in the 20th century.  Hidden?  Invisible?  Weak?  Stateless?  Nightwatchman?  The old tropes and myths and illusions drop like flies in the ointment (salve?) of first-rate historical investigation.  Examples are endless.  Among my favorites is when Parrillo puts his recovered historical record up against some of the generalizations of formidable state theorist Michael Mann.  Mann: “All federal officials have been salaried, from the late 1780s to the present day.”  Parrillo: “This is completely wrong” – citing the “Roll of the Officers, Civil, Military, and Naval, of the United States” (1802) among many other sources.

            But there is much more to Parrillo’s achievement than confronting generalized error or false assumption with the actual historical record.  For in Parrillo’s painstaking effort to recover and restore to clear vision the nature and power of the early American administrative state – institutionalized in complex systems of public-private bounties, fees, rewards, prizes, gifts, profits, and moieties – there is also a call for a larger effort to rethink the way we think about states and the constituent technologies of state action.  Here, I think Parrillo’s empirical efforts play directly into a more general theoretical conversation about the need to move beyond our conventional modes of understanding and interpreting states.

            Bourdieu’s lectures On the State open by first highlighting two distinct state traditions. He emphasizes on the one hand what he calls a “classical,” essentially liberal, definition of the state as a neutral zone designed to regulate conflict.  He dates that tradition back to Locke and Hobbes.  On the other hand, he also highlights the Marxist vision of the state as a diabolus in machina – a state “in the service of the dominant interests” – which turns this neutral vision on its head.  Bourdieu tries to come to terms with and move beyond these two classic traditions by working with and adjusting a third Weberian definition of the state as “a monopoly on the means of physical and symbolic violence.”  And a Weberian approach, of course, has dominated most social-scientific thinking about the state since the 1970s and 80s.  But in just such existing liberal, Marxist, and/or Weberian frames, it is all too easy to overlook or underestimate the rich history of administration that Nick Parrillo has now uncovered.

             Recently, however, scholars like Stephen Sawyer (in France) and Jim Sparrow (in the U.S.) have been pushing for a historically-grounded theoretical alternative – an alternative that has evaded too much of our scholarship on the state to this day – a history and theory of democratic states.   They suggest that, in spite of the tremendous amount of recent empirical and historical work on the state, we are still surprisingly prisoner to these three prevailing modes of thinking about the state outlined by Bourdieu: a) liberal (neutral); b) Marxist (extractive dominating); and c) Weberian (bureaucratic, rational, autonomous).  As powerful as these visions are, Sawyer and Sparrow suggest that they do not provide us with an intellectual history of the state that allows us to fully assimilate the kind of data and historical evidence that scholars like Parrillo are continuing to uncover on the peculiar structures of power and authority exercised by modern democratic states.  In short, we need a more robust genealogy of the characteristics and trajectories of democratic states – a state theory that, as Pierre Rosanvallon once put it, has the capacity “to account for the basic differences between a democratic state and a totalitarian state.”  The global, totalizing, and trans-historical conception of the state in our histories needs to be undone.  For, according to Rosanvallon, “the state is not just an administrative device or apparatus . . . it is also a peculiarly effective and efficient form of social representation . . . the crossroads of the social and the political.”  In the end, as I see it, Parrillo provides us with an ideal model for interrogating and investigating that difficult (perhaps unthinkable) subject of the state – precisely by illuminating the crossroads of the social and the political.
 
William J. Novak is the Charles F. and Edith J. Clyne Professor of Law at the University of Michigan.  He can be reached at wnovak@umich.edu.

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