Tuesday, April 12, 2022

William Novak's New Democracy: The Creation of the Modern American State -- a Mini-Review

Mark Tushnet


William Novak’s superb New Democracy: The Creation of the Modern American State continues his project, begun with The People’s Welfare, of retrieving a constitutional tradition of active governance in the United States. Here he turns from the ante bellum years to the period from Reconstruction to the start of the New Deal. The book is bound to become a landmark in constructing the map of governance’s constitutional history. 

Novak’s conclusion emphasizes the continuity of state-building from 1865 to 1932, contrasting that story with one that sees the New Deal as a distinctive “revolution” in governance. I note that this is compatible with the way I understood the state of things as of 1930, the start of the Hughes Court. One theme of my Holmes Devise volume on the Hughes Court is captured in its subtitle, “From Progressivism to Pluralism.” Even the most conservative justices on the Hughes Court accepted the basic contours of the Progressive administrative state, thought they disagreed with the 1930s “liberals” about where the boundaries of that state should be set. (Had I written Novak’s book I probably would have had something to say about the way in which  Herbert Hoover’s corporatism and the industrial conferences he encouraged foreshadowed the National Industrial Recovery Act – and caused some problems for the New Deal’s antitrust revival.) 

I do have some questions about Novak’s narrative, taking off from his emphasis on the growth of the police power during this period (in contrast to an alternative narrative in which the “Lochner era” is one dominated by the imposition of limits on the police power) and on the growth of “the social” as a category of analysis. One way to describe his project, I think, is that he wants to re-center existing narratives about state-building before the New Deal, moving material that those narratives place at the periphery to the core. One way of capturing my questions is that the material newly placed at the periphery was actually closer to the core than Novak would have it – or, perhaps more felicitously, that governance consisted of two distinct domains (think of them as overlapping circles) whose centers were closer than Novak would have them.


I should state one historiographical point early on. My understanding of the period was shaped in the 1960s and 1970s, when then-revisionist historians told stories about Progressivism as a means of social control and as a defense of capitalism against threats from populists and socialists, and my comments here are basically that Novak’s “peripheralization” of those stories should be resisted at least a bit (that is, there’s something in those narratives worth preserving). Novak’s own historiographical comments note that he is writing during a “new Gilded Age,” and that retrieving Progressivism’s egalitarianism and deep commitments to democracy is important today. True enough, but, in my view, a full understanding of the period will require combining the “old revisionism” with Novak’s newer one. 

My first concern is about the story of the administrative state Novak tells. As he puts it, the state was to embody professionalism in the service of democratic administration, with the emphasis on “democratic.” The old revisionists, in contrast, put the emphasis on “professionalism.” My concern is that the professionals running the administrative state to serve the public interest discerned what the public interest was through professionalist lenses – or, again perhaps more felicitously, the public interest was what the professionals said it was, sometimes (not always, of course) against what one might find in the discourse of the public itself. Walter Lippman, writing in the 1910s, expressly questioned the competence of ordinary people to identify what was in their own best interest, for example. And this is connected to my second concern, developed in more detail below: The modern administrative state aimed at controlling private exploitation and corporate control of public policy through the development of new modes of social control, which then could be turned to controlling the public itself. (I sometimes think of this as the transformation of the “social services” Novak emphasizes – redistributive policies – into “social work” focused on individuals.) 

Novak devotes attention to municipal administration as well, which might be distinctive because of the objects of service delivery – “sewer socialism” as it once was – though the rise of land use regulation might be seen as another form of social control. And I would have liked to see a somewhat more extensive discussion of the displacement of patronage by a professional civil service, which democratized service delivery by making it more effective while reducing the democracy-related effects of patronage as employment. (Though I don’t recall the timing of the city-manager movement clearly, I do recall that the old revisionists treated that movement as an explicit effort to reduce democratic control over service delivery at least, and probably over city policy generally.) 

Reflecting on Novak’s work as well as Blake Emerson’s on the roots of Progressivism, I’ve begun to think that there’s a story to be told about the transformation of the idea of democracy within Progressive/liberal thought. Roughly: Early or classic Progressives like John Dewey, Jane Addams, and Mary Follett were deep democrats, trusting in the wisdom of ordinary people once they were able to make undominated choices. Later Progressives/liberals like Felix Frankfurter and James Landis were elitist democrats who believed that they knew better than even undominated ordinary people what was in the public interest (or perhaps they were skeptical about the possibility of achieving non-domination). But, early and late, everyone used the language of democracy – the later versions are what Novak quotes – because it was a “hurray” word (and because even the elitists were democrats in an important sense). One part of the story might be that the early Progressives were regularly in touch with ordinary people through their work in Chicago and elsewhere, whereas the later ones were located almost entirely in elite institutions. 

My second concern is captured in Novak’s early reference to “egregiously antidemocratic catastrophes like disfranchisement, racial segregation, Chinese exclusion, a war on indigenous peoples, imperialism, and eugenics.” His treatment of those matters in the early pages foreshadows their treatment throughout the book: marginalized or even, as in the case of imperialism, unmentioned. But, again picking up on what the old revisionists argued, I think it worth considering the possibility that those “antidemocratic catastrophes” were, to put it more strongly than is likely to be accurate, conditions for the actual democratic achievements Novak identifies. 

Here I’ll be telegraphic: One needn’t go whole hog on the idea of a herrenvolk democracy to think that the disempowerment and exclusion of some might contribute to the empowerment and inclusion of others (nor does doing so diminish the importance of the empowerment and inclusion that did occur). So too with imperialism: One needn’t completely buy into J.A. Hobson on the domestic benefits of imperialism to think that American imperialism enabled some of the democratic advances Novak describes. And, finally, Randolph Bourne’s line, “War is the health of the state,” does capture something important about how state capacity was built in the United States and elsewhere. Had Novak pushed the story back a bit he might have seen the Civil War as an episode in state building – a story I associate, perhaps as a result of blurred memory, with Frederickson’s Inner Civil War. George Creel’s Office of War Information, for example, was both a continuation and an expansion of state efforts to control public discourse in the service of what were seen as pro-social ends. (I know it’s a bit snarky but I can’t avoid noting that Pierre Bourdieu appears in Novak’s index but Randolph Bourne doesn’t.) 

In some sense the concerns I’ve described are simply calls for other scholars to take Novak’s synthesis and complicate it – to relocate the peripheralized topics close to the core, or to move the centers of the overlapping circles closer to each other. 

What Novak has given us can perhaps be seen as a major contribution to an overall narrative of U.S. constitutional development with three lines proceeding in parallel: a state of negative liberty emphasized in one literature, an empowered government in Novak’s account, and a government of positive duties as described in Joseph Fishkin and William Forbath’s Antioligarchy Constitution (to be discussed in a forthcoming Balkinization review symposium). That’s a much richer story than constitutional and legal historians have been telling ourselves, and Novak’s work is essential to its creation. 

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