The Not-So-Strange Birth of the Modern American State: A Comment on James A. Henretta’s “Charles Evans Hughes and the Strange Death of Liberal America”

James Henretta’s “Charles Evans Hughes and the Strange Death of Liberal America” takes up one of the most interesting and important interpretive questions in the history of American political economy. What explains the dramatic transformation in liberal ideology and governance between 1877 and 1937 that carried the United States from laissez-faire constitutionalism to New Deal statism, from classical liberalism to democratic social-welfarism? That question has preoccupied legions of historians, political-economists, and legal scholars (as well as politicians and ideologues) at least since Hughes himself opened the October 1935 Term of the U.S. Supreme Court in a brand new building and amid a rising chorus of constitutional criticism. Henretta, wisely in my opinion, looks to law, particularly public law, for new insights into that great transformation. But, of course, the challenge in using legal history to answer such a question is the enormous increase in the actual policy output of courts, legislatures, and administrative agencies in this period. Trying to synthesize the complex changes in “law-in-action” in the fiercely contested forums of turn-of-the-century America sometimes seems the historical-sociological equivalent of attempting to empty the sea with a slotted spoon. Like any good social scientist, Henretta responds to the impossibility of surveying the whole by taking a sample. Through a case-study of the ideas, political reforms, and legal opinions of Charles Evans Hughes, particularly as governor of New York and associate and chief justice of the U.S. Supreme Court, Henretta offers us in microcosm the story of the revolution (or rather several revolutions) in modern American governance.

Surprisingly, the story Henretta tells through his intellectual biography holds remarkably true to a still-reigning orthodoxy about the general course of American legal-political development. The tale begins with a portrait of the old regime—nineteenth-century laissez-faire liberalism. “Beginning with the Jacksonian constitution of 1846,” Henretta argues, New York’s “political tradition embodied … a laissez-faire liberal ethos…. Indeed, in New York ‘negative’ government had support across the political and social spectrum…. celebrat[ing] the primacy of the marketplace and the legal doctrines upon which it depended, particularly ‘freedom of contract.'” In the late nineteenth century, however, the combined socio-economic stresses of industrial consolidation and urban immigration exposed some of the difficulties of relying on a simple liberal faith in property, contract, and the market. While some defended old ideals with new vigor, using arguments supplied by Herbert Spencer and William Graham Sumner, others, the so-called “new liberals,” began to take their cues instead from T. H. Green and Lester Frank Ward. “The discovery that business corrupts politics,” in Richard L. McCormick’s phrase, speeded Charles Evans Hughes’s evolution from good-government Mugwump to new liberal reformer, cutting his teeth in New York state politics on such classic progressive issues as public utility regulation, life insurance regulation, and the reform of the political process.[1]By the 1910s, as Hughes was elevated to the U.S. Supreme Court, progressive reform reached a crescendo with a high degree of political synchrony about the need for a greater role for government supervision of American economic and social life.

As Henretta argues through Hughes, however, American progressivism reflected a rather exceptional brand of new liberalism, departing in significant ways from the more radical reform projects underway in Great Britain, Germany, and France. Hughes’s social liberalism was characteristically American and middle-of-the-road—moving beyond the proscriptions of classical liberalism but stopping far short of socialist or fundamentally redistributive policy solutions. Hughes’s new liberal vision was distinctly limited—at one point Henretta even characterizes his overall temperament as “conservative.” He endorsed a more active, instrumental role for government economic and social regulation through the state police power but only as a necessary countervailing supplement to older precepts of private freedom privileging the individual’s right to own property, to work, and to contract. After World War I and the Russian Revolution, the limits of Hughes’s position became more clear as progressives like him recoiled at the prospect of more statist, nationalist, and redistributive projects. By the time he was appointed chief justice by Herbert Hoover in 1930, the old progressive Hughes could be portrayed as a bulwark against “Bolsheviki” on the Supreme Court.

Henretta completes his orthodox tale by focusing on another staple of American legal-political interpretation—the Constitutional Revolution of 1937. Henretta portrays the New Deal as a great departure that radically transgressed the carefully delimited boundaries of progressive, new liberal reform. The New Deal’s expansion of federal governmental regulatory authority, the establishment of a national administrative bureaucracy, and the promotion of redistributive social-welfare policies signified a revolution in government that ultimately required an unwritten revision of the United States Constitution—a revision formally ratified by Chief Justice Hughes’s majority opinion in NLRB v. Jones and Laughlin Steel Corp. (1937). For Henretta this “switch in time” sounded the death knell of progressive new liberalism and heralded the birth of the statist and civil rights-based liberalism of post-war America. In the end, the story of Hughes’s pivotal, but reluctant and almost unwitting, participation in undermining his own moderate credo reflects the irony that Henretta sees underlying the story of the “strange death” of new liberalism in America.

But the orthodoxy of Henretta’s story is procedural as well as substantive. For the historical methodology underpinning this article is also strangely traditional. Resurrecting many of the classic secondary histories that he so ably criticized as a former practitioner of the “new social history,” Henretta returns to history through biography—the biography of well-known elites—elites engaged in high-level ideological and political struggles. Henretta’s legal history focuses only on public and constitutional law and, in fact, relies primarily on a handful of well-known Supreme Court opinions (the usual suspects: Minnesota Rate Cases, Coppage, Blaisdell, Nebbia, Schechter Poultry, Jones and Laughlin Steel, Carolene Products, Gobitis). Of course, there is nothing objectionable per se about such methods and sources. If one is interested in explaining the evolution of Charles Evans Hughes’s own constitutional thought or his interactions with colleagues on the Court, there are few better places to begin an investigation. But James Henretta asks a different kind of historical question—a bigger and more social scientific question about the modern transformation of the American state and the relationship of that transformation to changing conceptions of liberalism and changing functions of law. For such questions, biography (whether individual or collective, patrician or plebeian) and internalist constitutional history (whether doctrinalist, behaviorist, or institutionalist) are simply not up to the task. Rather than follow the “new” Henretta in his current engagement with classic cases and contemporary constitutional commentary, I would recommend instead heeding the advice of the “old” Henretta—the Henretta fully engaged with social science and social theory, urging his fellow historians to move beyond conventional methods and perspectives and to think broadly and systematically about the complex interrelationships of society, economy, and polity.[2] In legal scholarship that social science perspective has a long and well-established pedigree rooted in the classic legal sociology of Max Weber and Emile Durkheim; the innovations of sociological jurisprudence, legal realism, and critical legal theory; as well as the contemporary development of the fields of legal history and law and society inaugurated by the scholarship of James Willard Hurst.[3]

How might such a broader social scientific perspective affect Henretta’s project? One of the most important developments in the social sciences over the past generation has been a resurgence of scholarly interest in the origins and historical significance of the modern nation-state. In historical sociology and political science a new sub-field, American Political Development, has been created around a deluge of studies focused on the emergence of a modern administrative and social-welfare state in the United States. From the pioneering work of Theda Skocpol, Stephen Skowronek, and Richard Bensel to recent studies by Daniel Carpenter, Christopher Howard, and David Moss, our knowledge of the process of American statebuilding between the end of the Civil War and the end of the New Deal has been vastly expanded and reinterpreted.[4] Yet nowhere in Henretta’s article—ostensibly concerned at bottom with the transformation of American law and governance between 1870 and 1940—does this well-known and now quite sizable literature make an appearance. That is unfortunate, as this body of social scientific research has begun to fundamentally revise our understanding of the evolution of American statecraft and its relationship to political economy and law.

At the heart of this revisionist project are two themes that speak directly to Henretta’s concerns. The first is that the American state is and has been consistently stronger, larger, more durable, more interventionist and more redistributive than described in any earlier United States historiography. The revisionists challenge us to write histories that can account for the glaring, central fact about modern American history—the development of a global geo-political and legal-economic leviathan. That is what needs explaining in modern American history. And the revisionists have more than begun that interpretive process with new research on such things as the origins of a fiscal-military state in the early republic; the powerful role of the state in policing the institution of slavery, Indian removal, and westward expansion; the role of the federal government in promoting and regulating national commerce; the surprising extent of American state social regulation from temporary experiments like Prohibition to more sustained developments in criminal justice and penal policy; as well as the surprising extent of America’s “hidden” social welfare state. The grand meta-narrative of American state weakness, statelessness, or anti-statism is rapidly being abandoned. Given extant social scientific research on the extent of state action and public economic policy in nineteenth-century America (monographic research dating all the way back to the so-called “commonwealth studies”), it is simply no longer intellectually justifiable to characterize New York state policy circa 1846 as “laissez-faire” or “negative government.”[5] Similarly, in the larger context of current social-scientific analyses of American state development from 1877 to 1937, historical preoccupation with whether a particular reformer is best characterized as a “Mugwump,” an “Old” or “New” Liberal, an aging “Progressive” or an emerging “New Dealer,” a “communitarian” or a “conservative,” seems almost beside the point given the seismic structural changes in the nature of the policy, law, and governance in this volatile period. Following the “old” Henretta, we should be more systematically investigating “law-in-action” in this period “from-the-bottom-up”—the actual policy output of legislatures, courts, and administrative agencies across the endless fields of modern governmental jurisdiction: crime, health, morals, labor, education, immigration, transportation, energy, public utilities, social welfare….

The second theme of revisionist social science is related to the first. That is, our ability to account for the historical growth and power of the American state is significantly constrained by some familiar historiographical formulas used to tell the tale of modern legal, economic, and political development. Those traditional tropes need to be set aside as scholars develop new languages and interpretations that actually help to explain the expansion of American political and economic authority at home as well as abroad in the twentieth century. What are some of those problematic formulations? A few examples: 1. laissez-faire vs. the general welfare state (it is difficult to explain what did exist and develop in the United States from the Civil War to the New Deal by constant reference to two things that arguably did not fully exist); 2. American classical liberalism vs. European social-welfare democracy (again, even as a delicately deployed ideal type, this construct and its “Why no socialism in America” exceptionalism never fails to produce more heat than light); 3. reaction vs. reform—in this period represented by the politically charged formulation of the Gilded Age vs. the Progressive Era (a formula whose simultaneous attractiveness and substantive vacuity is best reflected in Arthur M. Schlesinger Sr.’s reduction of all of American history to 16.5 year cycles between reaction and reform). Recently, historians like Daniel Rodgers and James Kloppenberg (and social scientistslike Charles Tilly and Michael Mann) have urged their colleagues to widen their frame of reference by looking abroad and adopting a comparative approach to the history of liberalism, modern political economy, and the nation-state so as to avoid the exceptionalism of so many histories of the Gilded Age, the Progressive Era, and the New Deal.[6] Henretta relies heavily on the examples of Rodgers’s and Kloppenberg’s scholarship. But though he attempts to link American reform to the rise and fall of “new liberal” ideas and policies in Britain, in the end the causal linkages remain obscure[7] and the American exceptional story of nineteenth-century laissez-faire, Gilded Age corruption, Progressive reform, 1920s reaction, and New Deal social-welfare revolution is reinforced rather than reevaluated.

A new story needs to be told about the transformation of American liberalism and public policy between the end of the Civil War and the end of the New Deal. And law, courts, and judges are absolutely central characters. But it is not a story accessible through biography or Americana alone, and its primary themes are probably only obscured by the quaint, popular languages with which “Mugwumps,” “Progressives,” and “Bolsheviki” described their personal political battles. It is the formative story of the creation of a modern state in America—a centralized, administrative, regulatory, welfare state—one of the more formidable legal, political, and economic powers in world history. There was perhaps a time in the not-so-distant past when it was somewhat justifiable to focus social scientific attention on other (primarily European) state regimes and to see American governance as something “less”—less developed, less complicated, less dangerous, less globally significant. Those days are gone. As the American model of law and political economy is rapidly being exported abroad, it is certainly time to reckon with the full scale and scope of American statecraft. There is no better place to begin that investigation than in the formative period of state development that occupies Henretta’s article. But our tools of investigation need to move beyond the conventional techniques of the traditional American constitutional narrative.

James Henretta ends his biographical snapshot of this important era with an appropriately ambiguous literary conclusion highlighting irony and strangeness. But as Yevgeny Yevtushenko warned, ironic detachment might not be the best intellectual approach to the power, authority, and violence of twentieth-century states. As he mused in “Irony”: “The twentieth century has often fooled us…. Bitter knowledge has made us powerless, and our weary irony ironically has turned against ourselves.”

William J. Novak is an associate professor of history at the University of Chicago and a senior research fellow at the American Bar Foundation <[email protected]>.

Notes

1. Richard L. McCormick, “The Discovery That Business Corrupts Politics: A Reappraisal of the Origins of Progressivism,” American Historical Review 86 (1981): 247–74.

2. See for example James A. Henretta, “Social History as Lived and Written,” American Historical Review 84 (1979): 1293–1323.

3. For discussions of Hurst’s work in the context of this larger legal-sociological tradition, see Robert W. Gordon, “J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975): 9–55; William J. Novak, “Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst,” Law and History Review 18 (2000): 97–145.

4. Exemplary texts are: Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Harvard University Press, 1992); Stephen Skowronek, Building a New American State: The Expansion of National Adminsitrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982); Richard Franklin Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (New York: Cambridge University Press, 1990); Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (Princeton: Princeton University Press, 2001); David A. Moss, When All Else Fails: Government as the Ultimate Risk Manager (Cambridge: Harvard University Press, 2002); Christopher Howard, The Hidden Welfare State: Tax Expenditures and Social Policy in the United States (Princeton: Princeton University Press, 1997).

5. For the best surveys of the vast “commonwealth” literature, see Harry N. Scheiber, “Government and the Economy: Studies of the ‘Commonwealth’ Policy in Nineteenth-Century America,” Journal of Interdisciplinary History 3 (1972): 135–51; Robert A. Lively, “The American System: A Review Article,” Business History Review 29 (1955): 81–96.

6. Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Harvard University Press, 1998); James T. Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford University Press, 1986); Charles Tilly, ed., The Formation of National States in Western Europe (Princeton: Princeton University Press, 1975); Michael Mann, The Sources of Social Power (New York: Cambridge University Press, 1985).

7. As Henretta obliquely puts it, “There is no evidence that [Hughes] was directly influenced by T. H. Green; however, he knew Ely through the AALL and probably read Pound’s essays. Whatever the precise links, the Associate Justice wrote opinions that mirrored the arguments of the Oxford philosopher of ‘positive liberty’ and the sociologically inclined Midwestern professors” (emphasis added).

 

WILLIAM J. NOVAK

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