The Limitless Possibilities of the Long Progressive Era’s New Democracy

** This is the first in a series of four reviews of William Novak’s recently published book New Democracy: The Creation of the Modern American State. Each day this week one review will be published, and Novak will then respond on Friday. **

Writing in 1912, Walter Weyl—who, along with Herbert Croly and Walter Lippmann, would go on to found The New Republic magazine—described a nation rent by rising wealth inequality and captured by a “powerful plutocracy” (Weyl, 158). Yet, Weyl saw cause for optimism—greater productivity and rising living standards propelled a new type of “democratic striving” that demanded not only political democracy, but also economic and intellectual democracy (Weyl, 207). Weyl’s The New Democracy challenged readers to look beyond mechanical ideas of individualism and the “glitter of plutocracy” to “see the countervailing developments of the last twenty years in political, industrial, and social life” (Weyl, 159). In those countervailing forces, Weyl identified a “spirit” of the era, which “emphasize[d] social rather than private ethics, social rather than individual responsibility” and was “marked by a social unrest, a new altruism, a changed patriotism, an uncomfortable sense of social guilt” (Weyl, 160). More than anything else, the new democracy rejected the “so-called individualistic democracy of Jefferson and Jackson” (Weyl, 161-2) and embraced a much broader conception of democratic participation that required a greater diffusion of wealth and educational opportunity.

One hundred and ten years later, William J. Novak—a distinguished legal historian and the Clyne Professor of Law at the University of Michigan—has revived Weyl’s mission to articulate and defend this idea of the new democratic state, which entailed “a modern approach to positive state craft, social legislation, economic regulation, and public administration still with us today” (1). At the core of this work, Novak contends that the reconceptualization of democratic theory, captured in Weyl’s largely forgotten book, produced the modern American state.

New. Modern. Democratic. 

These terms guide the book’s narrative and structure its argument. Novak’s New Democracy: The Creation of the Modern State argues that, between 1866 and 1932, the United States underwent a “second American revolution” in governance, which entailed “a new understanding of the interdependence of statecraft and economic development in a mixed economy, and a new political economic vision of the democratic control of capitalism” (2). The seismic societal changes wrought by the Civil War and Reconstruction, industrialization, urbanization, immigration, cartelization, and monopolization, etc. created a crisis of democracy—these changes forced a rethinking. Ultimately, progressive reformers came to rely on new modes of governance, such as more expansive public law and the administrative state, to curtail or control new forms of economic inequality and economic domination. These changes in governance “quickly out stripped the local, legal, and federated technologies of 19th century common law, associative, and municipal self-regulation” (22).

Novak identifies the “great transformation” in modern state capacity to be “not the product of subterranean sociocultural forces or teleological processes of modernization,” but rather “the consequence of a quite self-conscious and systematic deconstruction of the pillars of the old regime” (25). And, critically, these developments took place before President Franklin Roosevelt’s New Deal and its expansion of federal government programs, such as social insurance plans and economic regulation. Novak is less concerned with analyzing the “old regime” than he is interested in recentering democratic theory as guiding the “unmistakable increases in state power [that] accompanied unprecedented extensions of public policies as well as public rights” (29).

New Democracy synthesizes both an immense secondary literature and an impressive body of published primary sources, ranging from legal cases, treatises, and works of social theory. The book is organized around six thematic chapters—on citizenship, police powers, public utility, social legislation, antimonopoly, and democratic administration. Each revolves around the question of how progressive lawmakers, reformers, and social theorists expanded state capacity and autonomy in order to create a more inclusive and well-regulated society. For example, despite the fact that the Supreme Court’s Slaughterhouse Cases (1873) gutted the substantive rights conferred to African-Americans by the Reconstruction Amendments and enabled the continuation of state-level black codes, Novak shows that the amended Constitution created a “new juridical subject–the modern rights-bearing citizen,” (66) which structured ongoing conversations regarding the rights of people and the obligations of government.

That reconceptualization of national citizenship—the recognition of inclusion—coincided with the reworking of “the foundational tenets of American liberal and democratic thought“ by “a plethora of theorists and publicists led by Lester Frank Ward, Walter Weyl, Walter Lippmann, Herbert Croly, and John Dewey” (77). This was the beginning of something “distinctly modern”—a recognition of large collectivities and the role of the state as an agent of social change and development (73). These progressives’ anti-formalist and anti-metaphysical critiques of common law adjudication as ex-post, piecemeal, and inadequate to deal with changing socio-economic realities led them toward legal positivism and an embrace of new regulatory technologies to achieve more widespread “positive liberty and freedom” (83). The reconstructed idea of the social guided these reformers to “a new age of social legislation and police regulation,” which Ernst Freund would describe as conferring a more general legislative regulatory authority above and beyond the local and state police powers described in Novak’s first book, The People’s Welfare (89). This tour de force continues Novak’s “long term effort to debunk persistent and dangerous fallacies” that American political economy has been defined by its “transcendent pre-commitments to private rights, formalistic constitutional limitations, and laissez-faire political economy” (3).

Novak’s New Democracy focuses our attention on the myriad ways in which progressive reformers translated a new public philosophy into expanded state regulatory capacity in order to meet the challenges of industrialization and rising socio-economic inequality, and thereby, they rendered the democratic pursuit of freedom accessible to more Americans. This focus, however, leaves little room for examining the limiting principles of liberalism or republicanism, the boundaries of judicial obstructionism of the Lochner Court, or the rights of those peoples who were neglected (or worse, targeted) by this expansion of state authority over citizens’ lives. The previous generation of revisionist legal and business historians more narrowly focused on the tension between classical and modern liberalism and emphasized how nineteenth century notions of federalism, police powers, and “free labor ideology” structured both social movements and business regulation into the twentieth century. While much of Novak’s story is familiar, it is novel in its circumspection of the “old regime,” which previous scholars excavated, explained, and critiqued.

Instead, Novak insists that “the so-called Lochner era … might more constructively and accurately be referred to as the era of police power and public utility” (107). In this way, Novak revives aspects of what Richard Hofstadter referred to as the progressive historians’ commitment to elevating the people over the elites: Vernon Parrington (1930) charted the proliferation of critical realism; Charles Warren (1913) cataloged state laws during the so-called Lochner era, demonstrating that the judiciary upheld the vast majority of them (105). John Commons (1924) did something similar for labor and employment law (26, 106). Novak also borrows from the postwar consensus school, which emphasized ideological continuity and democratic consensus. Yet, one still wonders what limiting principles shaped, and indeed limited, these pragmatic progressive reform efforts. As William Forbath has argued, for example, legal doctrine and legal violence—such as the judiciary’s animus toward redistributive “class legislation” and its use of the labor injunction—shaped and severely limited the aspirations of organized labor around the turn of the century.

A Historiographical Reconceptualization

In lieu of those legal constraints, Novak argues that a reconceptualized idea of democracy acted as the conceptual lode star for the era, leading to limitless possibilities for public law and the administrative state. We cannot truly understand this revolutionary development of the modern state or its relationship to society, Novak tells us, without understanding the progressives’ transformation of democratic theory and then its operationalization by legislatures and the judiciary in new legal doctrine.

As Novak writes, democracy meant more than “a simple matter of constitutional structure, representational arithmetic, or electoral instrumentalities” (16). Those mechanics were important, to be sure; however, for Novak, procedural democracy was but a “formal means [to] achiev[e] a more complete and substantive democracy.” Thus, Novak shifts our focus from democracy as a process, a negative right, or a means to an unknown end, and toward “democracy as a ‘way of life’” to serve “greater democratic objectives” (19-20). The progressive pragmatists’ response to modernity was therefore not Robert Wiebe’s “search for order” but instead a march toward “a more complete and substantive democracy” (19). For Novak, the idea of new democracy cannot be understood by the limiting principles or even dialectical tensions between rival political or social movements, but rather as “an ends-oriented democracy that turned . . . on the substantive policy outputs that more equitably and effectively secured the people’s health, safety, and well-being” (20). In fact, the mechanics of democratic participation—voting, polling, political parties, and interest groups—receive relatively little attention; instead, Novak is interested in charting the way in which the idea of new democracy was pursued by institutionalizing more expansive public laws and creating administrative agencies. The writings of John Dewey and his collaborator James Tufts illustrated this transformation of the idea of democracy.

Perhaps the most interesting historiographical interventions are Novak’s corrections to the field of American Political Development, to which he has already made substantial contributions. Stephen Skorownek and Theda Skocpol famously reoriented scholarship in political economy around “bringing the state back in,” in search of “critical junctures” in which state regulatory capacity grew and bureaucratic agencies gained autonomy from other branches of government. Distinct episodes of crisis, such as the Civil War and World War I, precipitated state development; and, as Lou Galambos and Brian Balogh have emphasized, the professionalization of managers and bureaucrats helped embed new governing structures, like administrative agencies. But as APD scholars excavated the origins of the modern administrative state and the emergent bureaucratic autonomy—historicizing and naturalizing it—they lost sight of the political. According to Novak, they lost sight of democracy. While the critique has some merit—APD has focused on Weberian notions of state capacity and autonomy—Balogh as well as Daniel Carpenter have also emphasized the mechanisms of democratic participation through political parties, polling, and mezzo-level bureaucrats interacting with interest groups. But that is not the idea of democracy that Novak pursues here.

Novak’s historiographical and philosophical contribution is to bring European social theory, particularly the work of Michel Foucault, Pierre Rosanvallon, and Axel Honneth, to bear on the development of the modern American state. Novak begins with recognition in the first chapter on citizenship and he quickly moves to the necessity of redistribution to achieve a modern, democratic society through the remainder of the book. The idea of democracy then becomes at once both a means and an end—he reconceptualizes what democracy requires the state to provide its citizens in order to be truly free and the methods to obtain that freedom. According to this rendering, it seems that democracy is justice.

Two issues arise from this reframing, leaving ample room for future scholars to pursue this line of inquiry. First, democracy as justice accepts its own failures, or the ways in which democratic practices enshrined or exacerbated existing power relationships rather than always leading to more equitable or just outcomes. For example, in the chapter on social legislation, Novak rather quickly dismisses any attempt to disentangle “humanitarian reform” (i.e., poor laws, labor laws, social work, social insurance, social security, etc.) and “social engineering and the carceral state, sex regulation, criminology, policing of families, and of course eugenics” (147). But what does this mean that they were “bundled together in the larger historical development of modern social regulation”? Does it mean that these two divergent normative positions simply emerged at the same time, or that they are inextricably linked? That democracy is quite capable of harnessing state power to produce unjust, inegalitarian outcomes receives attention but little critique. In fact, many of these most egregious types of moral and criminal legislation—e.g., Red Light Abatement Acts—were carried out through injunctions and equity summary proceedings, which deliberately evaded juries (see 174-).

Second, and more to the point, this account of democracy as justice cannot fully capture the contingency and compromise that most historians have highlighted as defining the American state-building process. Even if Warren and Commons were right in their depictions of the expansive regulatory capacity of the state, the competing notion of public and private spheres shaped these debates regarding what was constitutionally feasible at any particular moment in time. After all, it was the limitations to police power regulations that inspired Charles Beard’s “Writing Laissez Faire into the Constitution” (1914) or Edward Corwin’s “The Twilight of the Supreme Court” (1934). Indeed, those progressive histories propelled further democratic reforms and informed how historians interpreted the Court’s anti-majoritarian holdings. Recentering the structure of contingency and the voices of dissent within Novak’s account might also incorporate a wider variety of populist ideas or “municipal socialism” that also influenced the growth of state regulatory capacity.

New Democracy presents a powerful argument for the reperiodization of the rise of the modern American state around the recognition of inclusive national citizenship and the idea of the social control of business, and for the reconceptualization of American state-building around the idea of new democracy. Novak also provides a timely challenge to the persistent and pervasive mythology of a laissez-faire past, which continues to guide American politics and judicial opinions. By placing the individual within the collective and asking us to reconsider how the idea of substantive democracy has guided many of the most profound changes in American governance, Novak’s account of modern American state-building presents a hopeful account of the regenerative nature of democracy.

Laura Phillips-Sawyer is a historian and an associate professor at the University of Georgia School of Law. She is the author of American Fair Trade: Proprietary Capitalism, Corporatism, and the ‘New Competition,’ 1890–1940 (Cambridge University Press, 2018).