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.