Author’s Response: New Democracy and the De-Democratization of American Law and History

** This is the author’s response to 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)

4. The Progressive State, New Democracy, and the Elision of Race by Kate Masur (Northwestern University)

The entire forum is available for download as a PDF here. **

 

In June 2022, the United States Supreme Court momentously and controversially elevated the status of American legal history to new heights of significance in contemporary constitutional jurisprudence. In his majority opinion in New York State Rifle & Pistol Association v. Bruen, Clarence Thomas used the words “history” or “historical” more than 100 times in establishing the centrality of “this Nation’s historical tradition” in determining the scope of contemporary American constitutional rights and claims.¹ Samuel Alito resorted to the same words over 50 times in Dobbs v. Jackson Women’s Health in similarly holding that any judicially recognized constitutional right must be “deeply rooted” in “this Nation’s history and tradition.”² “An analysis focused on original meaning and history,” Neil Gorsuch argued in Kennedy v. Bremerton School District, was key as well to unlocking an Establishment Clause which “must be interpreted by ‘reference to historical practices and understandings.’”³ In West Virginia v. EPA, Gorsuch and Elena Kagan deployed competing historical accounts of agency delegations going “all the way back to this Nation’s founding” and beyond, in debating the revival of “the nondelegation doctrine.”⁴ The June cases are all testament to the rise to prominence of a politically freighted vision of American history and tradition inexorably tied up with legal formalism, judicial supremacy, and constitutional limitations. The roots of that history and tradition run deep.

As historians of recent American conservatism have been teaching us of late, the foundations for many of the conservative initiatives that flowed from the 1980s Reagan Revolution were originally (if somewhat ironically) laid during the heyday of American Cold War liberalism in the 1950s and 60s.⁵ In law and constitutionalism, as Edward Purcell and Richard Primus have convincingly demonstrated, America’s confrontation with totalitarianism (from right-wing Fascism through to left-wing Communism) gave rise to a quickly revised and still-lasting vision of American exceptionalism at the start of what Henry Luce dubbed an “American Century.”⁶ In public law, Richard Primus notes, “Constitutional thought still operates within the framework defined by opposition” to totalitarianism.⁷ Indeed, in such exceptional times, the American traditions of antiformalism, pragmatism, and critical realism chronicled in my new book New Democracy came under blistering attack as not foundational or formal or morally absolute enough to take on totalitarian “fighting faiths.” In history, consensus historians like Daniel Boorstin and Louis Hartz launched a fetish for “American studies” as historians no longer emphasized ubiquitous connections with continental European states and policies, but meticulously catalogued instead America’s distinctiveness, especially its supposed lack of divisive political ideologies and the “givenness” and “naturalness” of its exceptional constitutional and liberal traditions.⁸ After two generations of arduous work by progressive reformers building a New Democracy upon bold public law traditions of citizenship, police power, public utility, social legislation, antimonopoly, and public administration, antitotalitarian discourse turned back instead to celebrations of American individualism, voluntarism, private rights, and constitutional limitations. The road from these first antitotalitarian priorities to the rise of contemporary conservative legal formalism (e.g., textualism, originalism, 1^st Amendment fundamentalism, and the return of the nondelegation doctrine) was straighter and narrower than most might first think.

Prior to the 1950s, of course, the dominant vision of American history – authored by what Richard Hofstadter labeled “the progressive historians” – did not include an especially favorable view of either the founders, the constitution, or judicial review.⁹ Most famously, Charles Beard’s epic The Economic Interpretation of the Constitution (1913) took critical aim at the secular theology of George Bancroft’s “nationalist school” which presented the making of the Constitution as an act of almost divinely-inspired benevolence:

By calm mediation and friendly councils, says Bancroft, the people had prepared a Constitution which in the union of freedom with strength and order, excelled every one known before . . . In the happy morning of their existence as one of the powers of the world, they had chosen justice for their guide; and while they proceeded on their way with a well-founded confidence and joy, all the friends of mankind invoked success on their endeavor as the hope for renovating the life of the civilized world.¹⁰

Beard’s view of America’s original constitutional moment was decidedly less sanguine. Written in a period when many viewed judges, courts, and constitutionalism as undemocratic obstacles to a progressive popular will, Beard critically investigated the moment of creation as another opportunistic moment for dominant economic interests to secure their privileges by writing them into a national charter. Beard was not alone in his critiques of law and constitutionalism, rather he was joined by two generations of realistic skeptics who produced some of the most thoroughgoing critiques of constitutionalism in American history with titles like The Growth and Decadence of Constitutional Government; Court over Constitution; and Government by Judiciary.¹¹

By 1950, however, the American constitutional narrative began to change again – and change rather dramatically. For Daniel Boorstin, the constitutional institutions bequeathed us by the founders were part of the original “genius of American politics,” where even the Revolution itself became a mere disagreement about the nature of “the true constitution.”¹² In addition to themes of continuity, consensus, and special genius, the theme of “liberty” also began a new ascendancy in Cold War interpretations of American foundations. Clinton Rossiter’s Seedtime of the Republic: The Origin of the American Tradition of Political Liberty, published in 1953, was a locus classicus, again emphasizing “broad agreement” over “constitutional fundamentals.” At the core of those fundamentals stood liberty – “natural law” and the “rights of man” – the original constitutional baseline for the “ethical, ordered liberty that the American people still cherish as their most precious intellectual possession.”¹³ Such exceptionalist ideas about the foundations of America soon found their way into an untold number of ever more polemical and propagandistic American Cold War histories.

In consequence, a slow but steady de-democratization of American history increasingly took hold of the American national narrative. That original “crisis in democratic theory” ultimately prefigured the further degradation of democratic dogma at the heart of neoliberalism as well as more recent conservative efforts to restore a Burkean-like constitution of historic and traditional private liberties.  “Undoing the Demos,” Wendy Brown labeled it, erasing the “idea of a people, a demos” – a public – “asserting its collective political sovereignty,” and replacing it with an ancient and formal constitutional tradition dedicated to the judicial protection of sacrosanct private rights.¹⁴

Most of my work uncovering 19^th and 20^th century vernacular forms of American legislation, regulation, and administration, originally in The People’s Welfare and now in New Democracy, has struggled beneath the substantial weight of this inherited ideological tradition. In contrast to pervasive myths about an original American legal-political inheritance dedicated primarily to private individual rights, a weak state, formalist constitutional limitations, and laissez-faire political economy, I have worked to uncover a deeper and strangely obscured history of American public rights, public law, popular lawmaking, and surprising energetic state regulatory and administrative technologies. That act of historical recovery simultaneously required a substantial critical project – a realist “cynical acid” – to strip away the “myth, folderol, and claptrap” that grew up around the supposedly ongoing history of an eternally limited, hampered, and ultimately “weak” American state.¹⁵ And I am so grateful that all four of these discerning reviews grasp the centrality and supreme importance of this first critical intellectual and political theme. Steve Sawyer highlights the pragmatism and critical realism at the heart of the quest for a more democratic law and statecraft – a “revolt” against the sclerotic formalisms that encrusted our constitutional traditions, resisting change and reform. As Sawyer puts it, “Creation stories and myths conjure up images of a distant past that penetrate our present in persistent, surprising, and often distorting ways.” Kate Masur and Laura Phillips-Sawyer further illuminate the distorted stakes of an illusioned American present that yet again confronts a “democracy in crisis” in ways anticipated by Walter Weyl – “a nation rent by rising wealth inequality and captured by a ‘powerful plutocracy.’” Hannah Arendt famously associated such “dark times” distinctly with attacks on the “public realm” – rendering it so “obscured” and “dubious” and “despised” that people ask no more of politics than that it serve personal, private, and substantively “petty” interests.¹⁶

My work has been an attempt to render the American “public realm” somewhat less obscure and less dubious by challenging the historical myths and abstractions that so consistently camouflage and distort it. In place of constitutional fictions about our nation’s true “history and traditions” it has attempted to construct an alternative public narrative. Alain Chatriot catalogs some of those substitute emphases: “In place of contract, property, and tort as the central building blocks of American legal modernity, New Democracy is built around the public law categories of citizenship, police power, public utility, social legislation, antimonopoly, and administrative law.” Such public law categories were the workshop of Progressive reformers who, as Masur puts it, “were convinced that government could and should help all people thrive” via “public provisioning and public accomplishments that could lift all people in securing a substantively democratic way of life.” Phillips-Sawyer too accurately captures this alternative progressive vision of democracy, focused on the need for “social rather than private ethics, social rather than individual responsibility” – “a new altruism” and “a changed patriotism” – in short, a “new democracy.”

The major goal of New Democracy was thus precisely the corrective historical intervention so capably traced by each of these reviews – to attempt to close the gap between what we now increasingly know about an ever-expansive American regulatory state history and a prevailing libertarian constitutional mythology that seems to only grow stronger with each new US Supreme Court term. And that primary interpretive orientation governed a whole host of subsidiary decisions about focus and emphasis. Any book attempting to reckon with a 70 year historical period across competing areas of legal and public policymaking (economic as well as social) confronts hard authorial choices. Imperialism and war, for example, were important as well as controversial sites for early 20^th century American statebuilding (and thankfully both topics are now subjects of ever-burgeoning monographic literatures). Without taking anything away from the significance of such major historical forces, I consciously chose instead to enter some less well-traversed territory, where I thought I could deliver fresh legal-historical perspective. And I believe my chapters on police power, public utility, and democratic administration genuinely break new ground.

Similarly throughout, I had to make difficult choices about when and where to research and emphasize the “limits” of new democracy as an idea, a reform movement, and a complex set of legal-political policy practices. And as these reviews suggest, such limits are duly acknowledged throughout the book. But here I was also guided by a keen historiographical awareness that an overemphasis on precisely such limitations – e.g., enumerated powers, constitutional limitations, substantive due process, Lochnerism, non-delegation, the judicial review of administrative action – has been the orthodox interpretation of American constitutional history and political development for at least three generations. Previous histories of state police power have been written solely within the confines of court records of the judicial review of police power regulation.¹⁷ Histories of the American labor movement as well as the American social welfare and administrative state have been written primarily in terms of the exceptional limits upon American statecraft.¹⁸ A pervasive naysaying, thou-shalt-not orientation has long been an article of faith in the creed of American constitutional theology. In paying so much attention to the admittedly important question of limits on state power and democratic action, American legal-political historians have sometimes lost the forest among the trees. More significantly, ubiquitous histories of past limitations and misdevelopments and false promises have also inadvertently burnished an essentially Cold War narrative about judges, the rule of law, and the constitutional limitation of democratic possibility ever-poised to de-democratize the American present yet again.

So despite ever-present constraints on what any single book can accomplish, New Democracy chose first to foreground an original aspiration – an aspiration rooted in what Masur calls “America’s First Civil Rights Movement” and what chapter one calls “The Origins of Modern American Citizenship.” I then attempted to follow the implementation of that new national and democratic dispensation through a modern transformation of legal-political ideas like antiformalism, pragmatism, and critical realism. But, of course, such legal ideas were not mere matters of intellectual history or what some call “law-in-the-books.” Rather, law-in-action was the clarion call of progressive social-democratic reform. And so my book further traces the lineaments of new democracy through a flurry of extraordinarily impactful public state policies, ranging from public utilities to social legislation to democratic administration. “Alongside the rejection of formal constitutionalism,” as Stephen Sawyer puts it, the book chronicles the “tectonic shift in government” flowing from “the new democratic imperatives of welfare, combating socio-economic and racial inequality, and public provision.” In contrast to social science approaches marked by a seemingly relentless state-phobia, as Alain Chatriot concludes, the book challenges us “to think about the possibility” as well as “the historical forms of expression” at the core of substantive democratic statecraft. The historical recovery of just such expressions of substantively democratic possibility remains the critical core of New Democracy. And critical realism and substantive democratic possibility might still hold out the best antidote to the constitutional formalisms that still so frequently distort and encase our nation’s history and traditions.

 

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William J. Novak is the Charles F. and Edith J. Clyne Professor of Law at the University of Michigan. In addition to New Democracy, he is also the author of The People’s Welfare: Law and Regulation in 19th Century America.

 

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¹ New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022).

² Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).

³ Kennedy v. Bremerton School District, 597 U.S. ___, (2022). As Gorsuch put it more specifically, “‘[T]he line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accor[d ] with history and faithfully reflec[t ] the understanding of the Founding Fathers.’” Town of Greece, 572 U. S., at 577 (quoting School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294 (1963).

⁴ West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022).

⁵ For a few diverse examples of this increasingly popular historiographical move, see Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, MA: Harvard University Press, 2016); Paul Sabin, The Attack on Big Government and the Remaking of American Liberalism (New York: W.W. Norton & Co., 2021); Reuel Schiller, “Regulation and the Collapse of the New Deal Order, or How I Learned to Stop Worrying and Love the Market,” in Gary Gerstle, Nelson Lichtenstein, and Alice O’Connor, Beyond the New Deal Order: U.S. Politics from the Great Depression to the Great Recession (Philadelphia:  University of Pennsylvania Press, 2019):  168-185.

⁶ Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington, KY: University Press of Kentucky, 1973); Richard Primus, “A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought,” Yale Law Journal, 106 (1996): 423-457;  Henry R. Luce, The American Century (New York: Farrar and Rinehart, 1941).

⁷ Primus, “A Brooding Omnipresence,” 423.

⁸ Daniel J. Boorstin, The Genius of American Politics (Chicago:  University of Chicago Press, 1953);  Louis Hartz. The Liberal Tradition in America (New York: Harcourt, Brace, and World, 1955).

⁹ Richard Hofstadter, The Progressive Historians: Turner, Beard, Parrington (Chicago: University of Chicago Press, 1968).

¹⁰ Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: MacMillan, 1913), 10.

¹¹ J. Allen Smith, The Growth and Decadence of Constitutional Government (New York: Henry Holt and Co., 1930); Edward S. Corwin, Court over Constitution: A Study of Judicial Review as an Instrument of Popular Government (Princeton: Princeton University Press, 1938);  Louis B. Boudin, Government by Judiciary, 2 vols. (New York: William Godwin, Inc., 1932).

¹² Boorstin, Genius of American Politics, 76.

¹³ Clinton Rossiter, Seedtime  of  the  Republic:  The  Origin of  the American Tradition of Political Liberty  (New  York:  Harcourt, Brace and Company, 1953), 1, 415-416.

¹⁴ Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (New York: Zone Books, 2015), 39.

¹⁵ William J. Novak, “The Myth of the ‘Weak’ American State,” American Historical Review, 113 (2008): 752-772.

¹⁶ Hannah Arendt, Men in Dark Times (New York: Harcourt Brace & Co., 1968), 11.

¹⁷ Howard Gillman, The Constitution Besieged:  The Rise & Demise of Lochner Era Police Powers Jurisprudence (Durham, NC:  Duke University Press, 1995).

¹⁸ William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Harvard University Press, 1992); Stephen Skowronek, Building a New American State: The Expansion of National Administration Capacities, 1877-1920 (New York: Cambridge University Press, 1982).