** This is the fourth in a series of four reviews of William Novak’s recently published book New Democracy: The Creation of the Modern American State.
1. The Limitless Possibilities of the Long Progressive Era’s New Democracy by Laura Phillips-Sawyer (University of Georgia Law)
2. État et démocratie aux Etats-Unis by Alain Chatriot (Sciences Po, Paris)
3. The History and Myth of American Democracy by Stephen Sawyer (American University in Paris)
Novak’s response will appear tomorrow. **
I began reading William Novak’s New Democracy: The Creation of the Modern American State in June 2022, just as the US Supreme Court ended its term with a telling trifecta: The court limited the power of the Environmental Protection Agency to impose regulations designed to slow climate change, invalidated a New York law designed to save lives by limiting carrying firearms in public, and reversed its long-held position that states cannot ban or unduly restrict access to abortion. These decisions are unpopular with Americans, who evidently would prefer a state that protects human well-being. Majorities support the right to access abortion and want more government action to address climate change and restrict firearms. And the court’s decisions were only one among many indications that American democracy is in crisis. This was also the summer of the US House hearings on the former president’s attempt to nullify the 2020 election, and of localized efforts to ban books and demand that K-12 teachers replace American history with patriotic propaganda.
In this context, it was genuinely refreshing (and even at times escapist) to immerse myself in Novak’s rendering of a cohort of Progressive Era intellectuals and reformers who were convinced that government could and should help all people thrive. This group articulated a new vision of American democracy that was about far more than voting and political representation. That “new capacious democratic vision,” Novak writes, included “public provisioning and public accomplishments that could lift all people in securing a substantively democratic way of life” (20). One of Novak’s key protagonists, the philosopher John Dewey, wrote that in the democracy he envisioned, “all industrial relations are to be regarded as subordinate to human relations” (21).
In New Democracy, Novak deftly examines how Dewey and other progressive reformers reimagined the state to meet the challenges of their own time. Addressing a wide array of social and economic problems, progressive reformers envisioned using local, state, and national government as a tool to promote collective well-being. As Dewey wrote, in a “democratic state,” government was “the genuine instrumentality of an inclusive and fraternally associated public” (121). Novak presents New Democracy as a sequel to his first monograph, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). His objective in both books is to illuminate a deep American history, extending back to the antebellum period if not earlier, of public regulation and administration in the name of promoting human welfare. The stakes and significance of this project are clear not just in the Supreme Court’s June 2022 decisions, but also in the Trump administration’s 1776 Project (2021), a clarion declaration of conservative ideology that names “Progressivism” as one of several attempts to “destroy our constitutional order.” The 1776-ers and many others would have us believe that supporters of state intervention on behalf of the common good have been radical outliers in a nation committed to unfettered markets and individual rights. Novak’s opus shows otherwise.
New Democracy is deeply researched and beautifully organized, with chapters that are largely thematic and build on one another conceptually. The structure allows Novak to show how reformers, operating in a variety of different fields, drew on inherited theories of law and governance but transformed them to meet their own moment. Of central importance is how this cohort rethought the “police power,” an old idea about the power of the state—in the United States, literally the states—“to pass laws that regulated private interest, properties, and liberties in the more general interest of public safety, health, comfort, order, morals and welfare” (92). The People’s Welfare made a crucial contribution by showing how Americans from the founding to the Civil War understood and readily deployed the police power in attempts to regulate economic relations and other aspects of human behavior. New Democracy continues the story by showing that writers of the Progressive Era drew on and revamped the police power in the service of their modernizing vision of social well-being. These reformers were systematizers who tended to take the piecemeal and somewhat defensive aspects of common law traditions and turn them into general rules and proactive policies. For instance, Novak writes that in the hands of reformer Ernst Freund, the police power was “no longer primarily preoccupied with negative common-law protections or the simple maintenance of civil and criminal justice but reconstituted as an instrument for the positive promotion of public welfare and the satisfaction of public needs and necessities” (98).
Growing recognition that large corporations exploited everyday people and damaged the social fabric led the intellectuals and reformers in Novak’s book toward an expansive vision of state regulation of business. Reformers insisted that railroads and grain elevators, though run privately and for profit, served the public in crucial ways and therefore could be subjected to extensive regulation. They defined such businesses as “affected with public interest” and established innovative governmental forms—including regulatory commissions and other administrative agencies—that wielded extensive power in the name of the broader, public good. Some readers might be surprised to read of this flowering of state regulation of business in a period sometimes known as the “Lochner Era”—after Lochner v. New York (1905), in which the Supreme Court infamously struck down a state law regulating commercial bakeries. But Novak argues persuasively that the decision’s significance has been overstated and that in fact, “this was an era of unprecedented expansion rather than limitation of legislative police power” (105). Progressive economists and others also pushed their ideas about economic regulation to the federal level, leading Congress to establish new commissions and agencies designed to stem the power of private monopolies and otherwise address the challenges posed by new forms of industrial capitalism. Believers in the state’s power to materially improve people’s lives, they rejected narrow and formalistic interpretations of constitutional and statutory law and embraced, instead, an ethos of pragmatism and experimentation.
A hallmark of New Democracy is its case for a cohesive American vision of the state as an agent of what Novak calls the “actualization of everyday democratic governance.” Novak devotes two chapters to questions of social rather than economic regulation. Here he explores progressives’ attention to the well-being of laborers, to children’s health, and to problems of housing, sanitation, nutrition, and vice, particularly in cities. He acknowledges that reformers of this generation developed a vision of “social police” that drew new attention to sexuality and “more generalized policing of the social norm,” which in turn generated the production of novel social pathologies. Mostly, though, these chapters mesh with those on economic regulation, offering a portrait of reformers as agents of far-reaching good who developed an innovative vision of human interconnectedness (or “the social”) and an associated idea that law should be “socialized” to serve the public welfare. From such ideas, Novak summarizes, emerged “child welfare legislation, mothers’ pension laws, housing and city planning legislation, public health laws, public education reform, public recreation laws, liquor legislation” and much, much more (160). Nascent visions about what government could do to promote human thriving morphed into creative ideas about how to do it, and Novak’s last chapter makes a straightforward case for understanding the administrative state as the ”functional vehicle” that progressives conceived “to achieve a more just distribution of power and resources in a democratizing and modernizing society.”
New Democracy is preeminently a book about ideas, and one of its great strengths is the connections it makes across discursive fields. Drawing on a vast range of treatises, textbooks, journal articles, and other published works, Novak highlights men and a handful of women who saw themselves as theorists and creators of a new American democracy. Each chapter (on themes like police powers, antimonopoly, social legislation, and so forth) brings together people writing in different genres, including philosophy, law, social science, journalism, and political theory. As a result the book is erudite, wide-ranging, and curiosity-inducing. But the approach does have its limits. For instance, we don’t learn much about the institutions that incubated such ideas or about the life stories of individual people who gave them voice. Likewise, the violence and upheavals that inspired many reformers remain largely offstage, as do radical intellectuals who may have pushed members of this cohort to revisit their own assumptions. Novak also leaves it for other historians to figure out (as many have!) how—and whether—new ideas made their way into policy: the political headwinds they faced, the deals required to get them there, and the challenges of implementation and enforcement. Still, this is a sparkling tour-de-force of intellectual history that captures the creative thinking and elan of reformers engaged in the urgent work of rethinking American democracy and governance. It is a cadre whose thought has much to offer us today.
I do have one major concern with New Democracy, and it relates to the implications of writing a history of the “creation of the modern American state” without having much to say about Black Americans, race, or the US South. In the paragraphs that follow, then, I continue a conversation Novak and I have been having for some years about where such questions fit into his depiction of the “people’s welfare” tradition as a counterweight to still-powerful American myths of laissez-faire and private right.
New Democracy does draw attention to the convergence of racism and questions of democracy in the first chapter, entitled “Citizenship.” The chapter begins with the sentence, “Modern American history begins with the abolition of the slaveholders’ constitution” and places the defeat of the Confederacy front and center. The chapter argues that citizenship was a decentralized and ill-defined concept from the nation’s founding until the end of the Civil War and the ratification of the Fourteenth Amendment. Novak says (and I agree) that the main area of contention over citizenship in those years was the nature and extent of the citizenship of free Black people. Defeat of the slaveholders’ rebellion meant defeat of the old regime of citizenship, and from its ashes, Novak writes, rose the Fourteenth Amendment’s nationalization of birthright citizenship and with it “a decidedly new and generalized field for contemplating the rights of people and the obligations of government in the United States” (66).
Yet Novak doesn’t return to citizenship as such in the chapters that follow. He could have discussed, for example, how and why birthright citizenship came to matter in subsequent decades; how the prohibition on naturalization for Asians shaped who could and could not become a citizen; or how, as historian Beth Lew-Williams has written, Americans state-builders of this period produced a modern vision of “alienage” in dialogue with new notions of citizenship. Perhaps more to the point, however, given the first chapter’s emphasis on the defeat of the Confederacy, the abolition of slavery, and the decisive choice to affirm African Americans’ citizenship in part by nationalizing citizenship itself, we might have expected New Democracy to trace what happened next to African Americans, to former enslavers and their progeny, and to the region they all so fundamentally shaped. Yet the South, white southerners, and Black Americans are largely absent from the rest of the book.
I found this perplexing. For instance, New Democracy highlights all manner of ways people imagined using the state’s police power toward genuinely democratic ends, but it neglects the complex reality that governing bodies, representing themselves as agents of “the people,” often mobilized the police power to marginalize and oppress groups of people who were either entirely unrepresented in those bodies or represented in tiny numbers that permitted them little influence. To provide just one example, we might look at the case of State v. Gibson (1871), in which the Indiana Supreme Court upheld a state ban on interracial marriage. The court affirmed that marriage was “essential to the peace, happiness, and well-being of society” and that the state could retained authority to regulate marriage “under the police power possessed by the states”—notwithstanding the Fourteenth Amendment and federal civil rights statutes passed after the Civil War. A state legislature, representing the will of “the people” of the state, could determine who could marry whom within the state: “The people of this State have declared that they are opposed to the intermixture of races and all amalgamation,” the court wrote. “If the people of other states desire to permit a corruption of blood, and a mixture of races, they have the power to adopt such a policy. When the legislature of the State shall declare such policy by positive enactment, we will enforce it, but until thus required we shall not give such policy our sanction.”
The Indiana court was not alone among state courts in deferring to the state legislature – and by extension to “the people” of the state—even when state policies were based in antidemocratic ideas about biological race and “corruption of blood.” State requirements of segregated schools and public accommodations were, like bans on interracial marriage, widely considered “reasonable” uses of the police power of the states. As the Supreme Court affirmed in Plessy v. Ferguson (1896), “Laws permitting, and even requiring” separation of races “have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.” In short, the expansive police power of the state could be used to liberate but also to coerce and oppress. This too was a problem of democracy that many reformers confronted in in the Progressive Era. Yet the N.A.A.C.P.—founded in 1907, steered by prolific writers, and very much part of the era’s ferment about democracy—is mentioned only once in New Democracy, and it is in the introduction.
Beyond the N.A.A.C.P., many reformers and social scientists of the period, the kind of people whose words and ideas make Novak’s book so rich, brought their energies to bear on what historian Natalie J. Ring has called “the problem South.” Ring discusses how Progressive Era intellectuals, large philanthropies, and the US Department of Agriculture defined “the South” a region in need of special attention. They investigated and attempted to remedy region-specific diseases such as hookworm, malaria, and pellagra. And they took an interest in the region’s particular agricultural challenges, for example by spending money to study and ameliorate the cotton boll weevil and reduce the damage it produced (113-20). As Ring and historian Eric S. Yellin have shown, many white progressives including President Woodrow Wilson, himself a theorist of public administration, believed the state must impose racial segregation to reduce the supposedly inevitable “friction” that occurred when two races interacted on roughly equal terms. Meanwhile the polymath intellectual W. E. B. Du Bois insisted that such ideas had no scientific basis, warning that Black Americans would never settle for segregation and that “if the United States expects to take her place among the new nations . . . then certainly she has got right here in her own land to find out how to live in peace and prosperity with her own black citizens.”
Some of Novak’s protagonists, theorists of the new democracy, were in fact thinking about the racial future of the United States. For instance, Novak regularly mentions John R. Commons, the progressive labor economist, but ignores his well-known and oft-expressed anti-immigrant, anti-Black sentiments. Novak also frequently quotes the economist and journalist Walter E. Weyl, author of The New Democracy: An Essay on Certain Political and Economic Tendencies in the United States (1912). Weyl, a white man from Philadelphia, wrote jubilantly of Americans breaking with their oppressive past and using government to build a new democracy. But in a section not discussed by Novak, Weyl also expressed grave concern about the nation’s “racial problem,” which he said was “of more fearful portent than that of any of the nations in Europe.” Weyl lamented: “We are still paying the endless price of slavery. The South is psychologically cramped. The North is bewildered. The Negro problem is the mortal spot of the new democracy” (342). Weyl worried about the possibility of a “savage race war” and conceded that racial segregation was a “solution” that satisfied no one. He held forth about the dilemma for several pages but came up with no good answer: “Whether we love the Negro or hate him, we are, and shall continue to be, tied to him” (345).
What would Novak’s New Democracy have looked like if he had taken a fuller measure of such issues, perhaps by following the history of Black Americans and the South beyond chapter 1? Would it have required a change of overall argument or framework? Would it have compelled a more thorough reckoning with the noxious uses of state police powers—powers not just to segregate but to sterilize, incarcerate, coerce, disenfranchise, and even execute? Would it have invited a more three-dimensional portrayal of the reformers themselves? New Democracy illuminates a great deal, but what does it also obscure because Progressive Era ferment about race and democracy is not included? Or is it enough to accept that these topics were simply beyond the scope of an already vast and impressive project?
We live in fraught times, but I would not accept the proposition that to raise these questions is to stand with the 1776 Project in condemning the entire “progressive” project (or even most of it). Pointing out abhorrent applications of progressives’ vision of a proactive state is not the same as suggesting that progressive reformers were wrong to challenge a laissez-faire approach to capitalism and inequality, wrong to reject pinched legal formalism, or wrong to believe the state could enhance what T. H. Green called people’s “positive power or capacity of doing or enjoying something worth doing or enjoying” (81). Nor is it to criticize Novak for seeking to excavate the genuinely democratic and often inspiring aspects of progressive thought and, more broadly, for revealing how deeply American it is to believe that the state can and must help foster human flourishing. Many things can be true at once, which is why I think New Democracy would have been enriched by a confrontation with some of the dilemmas and contradictions that came along with new visions of vigorous state promotion of the public welfare. This book deserves a wide and engaged audience for many different reasons, one of which is so we can keep thinking about these crucial and timely questions.
Kate Masur is a professor of history at Northwestern University who specializes in the history of race, politics, and law in the nineteenth-century United States. She is the author of Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction (W. W. Norton, 2021).