Jeremy Kessler on The Myth of the Strong American State*

Mary L. Dudziak

This post is first substantive post in a roundtable based on a recent panel on Law and Ideology in the National Security State at the American Society for Legal History conference. [Editor's note: you'll find a great bibliography by following the links to this post.]

Jeremy Kessler, Columbia Law School

*With apologies to Bill Novak.

American legal scholars and historians generally connect the rise of the “national security state” after World War II to the expansion of executive autonomy over “national security” policy making. While the quantitative growth of the national security state from the mid-1940s to the mid-1950s is unquestionable, my forthcoming book, Fortress of Liberty: The Rise and Fall of the Draft and the Remaking of American Law, argues that the qualitative story of increasing executive autonomy is too simplistic. By treating the national security state as a monolith, the standard narrative misses the extent to which the federal judiciary constrained executive autonomy in certain sectors of the national security state, even as executive autonomy flourished in other sectors. Specifically, I propose that those “national security” agencies that sought to regulate the nation’s manpower fell afoul of the courts during the late 1940s and 1950s. Conversely, the executive wielded an increasingly free hand over less labor intensive “national security” functions, such as intelligence gathering, covert operations, and nuclear strategy.

They key difference was not varying levels of official secrecy (a concept still in its infancy), or varying assessments of institutional competence (manpower policy was, from the perspective of New Deal legal thought, a core area of administrative, as opposed to judicial, competence). Rather, I trace the judicial assault on executive control of national-security-related manpower policy to a mode of “anti-totalitarian” legal thought developed by conservative critics of the New Deal in the mid-1930s. Identifying themselves as civil libertarians, these anti-New-Dealers sought to displace an earlier understanding of civil libertarianism associated specifically with the New Deal and, more generally, with the creation of a pluralistic and economically egalitarian administrative state. Although initially and explicitly proposed as a means of constraining the redistributive aims of the New Deal, the “anti-totalitarian” vision of civil liberties law achieved bi-partisan support by the mid-1950s. Its emphasis on the judicial protection of individual rights to freedom of expression, procedural due process, and privacy appealed both to economic conservatives hoping to limit public regulation of the workplace, and to “liberals” anxious about the excesses of domestic anti-communism.

Even as Cold War politics drove the creation of new coercive institutions for regulating the nation’s manpower, such as a permanent “peacetime” draft and a federal loyalty apparatus, “anti-totalitarian” litigants, judges, and politicians rapidly undermined these institutions’ legitimacy. Presidents Truman and Eisenhower soon found themselves unable to use such institutions to further an expansive “national security” agenda, an agenda that sought to combine geopolitical dominance with health, education, and welfare reforms at home.

Continue reading below the fold.
In recent years, a number of scholars have recognized the role that Roosevelt-appointed judges played in limiting the autonomy of paradigmatic New Deal agencies – such as the National Labor Relations Board – in the name of civil liberties and civil rights. But with few exceptions, the assumption remains that national security administrators were generally immune from this legalistic rollback of the New Deal. Indeed, Ira Katznelson has explicitly formulated a dichotomy between the “state of procedures” that forestalled economically egalitarian domestic policy during the Cold War, and “the crusading state” that unleashed American economic and technological power against the communist threat. Such a dichotomy, however, neglects the hybrid nature of national security institutions, which must invariably exert governmental power both at home and abroad.

Beginning in the late 1940s, those national security institutions that exerted “too much” governmental power at home suffered from new judicial supervision and quasi-judicial procedures. The result was the degradation of the Cold War executive’s capacity to shape social and economic life in the name of national security, even as that executive gained increasing freedom to set foreign policy. This unequal distribution of executive autonomy within the national security state became disastrously clear during the Vietnam War, when the regulation of civilian and military manpower collapsed. Whether the war on terror and its controversial regimes of domestic surveillance and counter-insurgency represent the restoration of executive autonomy across the national security state, or rather a further narrowing of the meaning of “national security,” is a significant question that historical research can raise but not itself answer.
Posted 9:00 AM by Mary L. Dudziak [link]