Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Conservatives, Progressives and the Regulatory State
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
by Mark Graber [link]
@Mark Graber: God bless you for raising a substantive issue of legal theory. You ask: [is there] ...something inherently progressive (by our contemporary standards) about a national regulatory state.
Of course one can dodge by defnining "progressive (by our contemporary standards)" such that the answer is yes or no, but that would defeat the purpose of the question.
Reading in my Corporations text this morning I read a wonderfully understated remark:
Law and economics scholars assume, for example, that persons act rationally to maximize their personal satisfaction and wealth, and that they are fundamentally honest in that they follow certain rules of civilized conduct. Many persons, of course, fit this mold. Unfortunately, in the real world, some do not.(Robert W. Hamilton, "The Law of Corporations")(emphasis added)
I think it safe to say that "progressives" in any era are of defined at least in part by the belief that "some do not" is a severe understatement. If one accepts this criterion as part of the differentia which define "progressives" then indeed I think it fair to say progressives favor a national regulatory state, more or less by definition where matters affect all citizens of the nation rather than merely the citizens of a given state.
A good example of path dependence might be the absence of a national bank. The Democratic party spent, depending on how you count, at least 100 years opposing one before 1932. They had invested as a party in alternatives like Van Buren's sub-treasury and Wilson's Federal Reserve. Even when the party ideology changed under Roosevelt, such that a Bank would no longer pose a Constitutional problem, they never proposed one that I know of.