Liberalism in the Shadow of Totalitarianism 9780674271456

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Liberalism in the Shadow of Totalitarianism

Liberalism in the Shadow of Totalitarianism David Ciepley

Harvard University Press Cambridge, Massachusetts, and London, England

2006

Copyright © 2006 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data Ciepley, David. Liberalism in the shadow of totalitarianism ⁄ David Ciepley. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-674-02296-6 ISBN-10: 0-674-02296-3 (cloth-alk. paper) 1. Liberalism—United States. 2. Progressivism (United States politics) 3. Totalitarianism. I. Title. JC574.2.U6C54 2006 320.540973—dc22

2006040881

In memory of my advisers, Edward Shils and François Furet, who offered their students a liberal education in the broadest and best sense.

Contents

Introduction

I

II

III

1

State-Building before the Totalitarian Encounter 1

An Exceptional Beginning

2

Social Science, Progressivism, and the State

37 56

Totalitarianism and the Economy: The Renaissance of Free Enterprise 3

A Unique Economic Path

4

The Quest for a Cooperative Commonwealth: NRA and AAA 98

5

Two Roads to the Development State: TVA and NRPB 116

6

Totalitarianism and the Scuttling of the Development State 129

7

The Retreat from Cooperation to Fiscal Compensation 146

8

Totalitarianism and the National Security State

81

Totalitarianism and Democratic Politics: The Rise of Interest Group Pluralism 9

Democracy and the “Values” Question

183

10

Envisioning Interest Group Pluralism

11

Interest Group Pluralism Institutionalized

194 217

164

viii

IV

Contents

Totalitarianism and the Court: From Higher Law to Neutrality 12

Totalitarianism and the Rediscovery of Civil Liberties 231

13

The Rise and Fall of Judicial Review before World War II 252

14

The Neutrality Ideal Comes to Court

15

Neutrality and the Due Process Revolution

16

Neutrality, Civil Liberty, and the Culture Wars Conclusion: The Dysfunctions of Antitotalitarian Liberalism 315 Notes

327

Index

369

262 280 301

Acknowledgments No philosopher in the world . . . can help believing a million things on trust from others or assuming the truth of many things besides those he has proved. . . . So somewhere and somehow authority is always bound to play a part in intellectual and moral life. . . . [W]e need not inquire about the existence of intellectual authority in democratic ages, but only where it resides. —ALEXIS

DE TOCQUEVILLE,

Democracy in America

Among those whose authority and support made this book possible, first thanks must go to Donald N. Levine, who, as adviser and friend, has been with me from the project’s inception. It is a great misfortune, and a source of great regret, that neither Edward Shils nor Francois Furet were able to see this project to completion; yet it was an immense privilege to have known and worked with these two men, each of whom left impossibly high standards of teaching and scholarship. Thanks go to Mark Lilla and Jean Bethke Elshtain for their willingness to adopt a student and for their contributions to the final result. Thanks also to Robert Pippin, who interceded with aid at crucial moments. Eldon Eisenach and James Kloppenberg provided detailed and very helpful comments on the entire book manuscript. Gerry Eisenberg, Howard Brick, Michael Klarman, Johann Neem, and Matthew Hull provided valuable comments on one or more chapters. At various stages, Jeffrey Stout, Stewart Winger, and James Block were crucial interlocutors as I struggled to get my head around the elusive American liberal tradition. The Mellon postdoctoral program in modeling interdisciplinary inquiry, at Washington University in St. Louis, and the Center on Religion and Democracy, at the University of Virginia, provided generous institutional support. Material in Chapters 8 and 9 was taken from my 2001 article, “Why the State Was Dropped in the First Place,” Critical Review 14: 157–206, reprinted with permission.Thanks to Kriszti Fehervary for last-minute editorial assistance, and thanks to Michael Aronson of Harvard University Press for his care in shepherding the result through the publication process. Final thanks go to my family, both nuclear and extended, for their patience and support. ix

x

Acknowledgments

It is a tenant of Martin Luther’s theology that salvation is entirely in the hands of God, while damnation is entirely in a man’s own hands. It doesn’t take a John Calvin to recognize the logical inconsistency of this position. But bad logic can make for good moral psychology. I am only too well aware that everything that is good in this book has come from standing on the shoulders of others. Its errors are entirely my own.

Liberalism in the Shadow of Totalitarianism

Introduction

The rise of European totalitarianism has left a deep impress on the United States. As a result of the struggle against it, the United States assumed a staggering array of responsibilities abroad, including managing the international trading system, fostering the decolonization of Africa and Asia, and leading an alliance to contain Soviet communism. But it wasn’t only the country’s relations with the rest of the world that the struggle against totalitarianism transformed. Less well recognized, it led to a redefinition of the very “meaning” of America. And this redefinition significantly altered the course of U.S. cultural and institutional development, to the point where we can speak of the encounter with totalitarianism as marking a rupture in the American liberal tradition.1 These “stateside” consequences of the totalitarian encounter are my subject. Despite the European origins of both the term “totalitarianism” as well as the phenomena it means to capture, nowhere did the concept receive as wide circulation, or take on as much significance, as in the United States. Even before the military engagements of World War II had begun, U.S. and émigré intellectuals had formulated their opposition to fascism, Nazism, and communism in terms of a political antithesis. First, they cobbled together a new category of political regime—totalitarianism—designed to capture an essence common to them all. Then they reinterpreted democracy as its polar opposite. Totalitarianism became the photographic negative that fixed, and in many respects continues to fix, the self-image of the United States. It is our defining Other. The public face of totalitarianism has changed from decade to decade— from the fascism of Benito Mussolini, to the Nazism of Adolf Hitler, to the communism of Joseph Stalin, and then of Mao Tse-tung, and finally to the Islamic fundamentalism of the Ayatollah Khomeini. Accounts of its origins have also varied. Is it brought on by the self-destruction of economic 1

2

Introduction

laissez-faire, or by a slippery slope of statist departures from laissez-faire? Is it the bitter fruit of moral relativism and the death of God, or of moral absolutism and quasi-religious fanaticism? Yet running through all these images and accounts, from the mid-1930s down to the present, a core meaning has perdured. Totalitarianism, in the American understanding, stands for two things. First, it stands for state control of the individual’s activity—especially of economic activity, but also of travel, association, even procreation. Second—and what is seen really to set it off from previous modes of tyranny—totalitarianism stands for state control of the individual’s very thinking, a control exercised through propaganda, monopoly of the media and education, and practices of ideological indoctrination, brainwashing, and “reeducation.” In short, totalitarianism stands for state control of both body and mind.2 Whether the countries that Americans have denominated “totalitarian” have at all times and in all respects conformed to this image is, for the purposes of this book, beside the point. This has been the American image, the American nightmare, the American antithesis. This entry of totalitarianism into the American imagination has turned the dichotomy between totalitarianism and individual freedom into the ruling dichotomy of American liberal thought. Even today, any bright American undergraduate carries with her an ideological map that runs from communism to laissez-faire in the economic dimension, and from fascism to cultural and civil libertarianism in the moral and cultural dimension. And like any American who has internalized such a map, she is bound to feel repulsed from the poles of totalitarian restraint toward the poles of individual liberty, understood as the absence of restraint. Of course, there have been other defining Others in American history, other tyrannies to oppose. But none have had the same libertarian implications. The classic American opposition was to pope and king. But the antipode of papistry and monarchy was Protestantism and republicanism. And both Protestant liberty and republican liberty, while defined against religious and political despotism, were no less defined against exactly the kind of “negative liberty,” or freedom from restraint, that has been at the heart of postwar liberal thought. In their own words, liberty was not the same thing as license.3 Furthermore, the descent of the French Revolution into the Terror cast a long shadow over nineteenth-century liberal thought, carrying the lesson that liberation can go too far. But just as Jacobinism was invoked in the nineteenth century, by liberals, to ward off the excesses of individualism, totalitarianism has been invoked in the second half of the twentieth century to ward off restraints on the individual—with “fascism”

Introduction

3

as the face of totalitarianism used to scare off restraints on opinion (or “freedom of expression”), and “socialism” or “communism” as the face of totalitarianism used to scare off restraints on the use of economic power (or “freedom of contract”). The net effect, cumulative over the years, has been to swing American intellectual discourse—and to some extent American practice—in a noticeably libertarian direction (although not to the point of true libertarianism, to be sure), both on cultural issues and on economic issues.

An Elite–Popular Divide Intellectual discourse has swung in a libertarian direction. That does not necessarily mean that the sentiments of the American public have swung in a libertarian direction (although certainly some movement has occurred).4 This is an important caveat. This book centers on American intellectuals, and on academic intellectuals in particular. It centers on revisions in their understanding of the United States, and on the transformations in national governance that they have effected, wittingly or unwittingly, through their influence on national elites. The fact that much of the rest of the country did not fully participate in this revised understanding reminds us of, and helps to explain, the gap that has opened between the broad public and American elites. As is widely advertised, there is a gap between the general public and intellectual elites on “values” questions.5 But there is no less of a gap between the general public and economic intellectual elites on economic questions.6 U.S. intellectual discourse, having been shaped by an ideological confrontation with totalitarianism, pulls intellectuals in a more libertarian direction than their less educated, less ideological peers. The existence of this gap is born out by the character of U.S. politics. Take presidential politics. Evidence suggests that a large winning political coalition could be assembled by a candidate who would combine economic progressivism with a call for moral and religious recommitment. This is suggested not only by the electoral success of William J. Clinton, who made moves in this direction in 1992. It is suggested also by the parties’ more usual campaign strategies. The Democratic Party, while it harbors most of the cultural Left, has learned to steer clear of the Left’s issues during the general campaign, and instead highlights its progressive stance on health and economic security issues, where it finds majority support. Contrariwise, the Republican Party, which harbors most of the economic Right, has learned to soft pedal its slow rollback of the New Deal and kindred

4

Introduction

legislation, and instead highlights conservative cultural issues, where it finds its own majorities. Granting that each party knows what it is doing, the clear implication is that a combination of the most popular elements of each—that is, a (moderate) economic progressivism combined with a (moderate) cultural conservatism—would be an easy winner. So why is it that we so rarely see such candidates emerging? Is it because the combination is intellectually untenable? Surely not. In fact, it has a long American tradition behind it. The American Whig Party—the party that played the Democratic Party to an electoral draw in the decades before the Civil War—advocated a federal program of “internal improvements” (road and canal construction), a national bank, and a tariff to protect infant industries from cheap foreign competition. Furthermore, at the state and local level, Whigs used their dominance of the common law courts to fashion a “well-ordered” (meaning “well-regulated”) market.7 These were the progressive economic positions of the day. But the Whigs were also the party of Protestantism, and the party of public schools, which they wished to use as carriers of a broadly Christian-bourgeois cultural program. Forge ahead to the early decades of the twentieth century, and we see that the combination of economic progressivism and moral uplift was also a hallmark of the progressives. As Eldon Eisenach notes, “among all those active in national political affairs, [progressives] were the most cosmopolitan, scientifically trained, philosophically sophisticated, informed, and deeply critical of prevailing institutions and practices—[and] also the most moral, religious, spiritual, and even romantically mystical in their public doctrines.”8 The Whigs and the progressives inhabit what, for lack of a better term, we might call the American tradition of “virtue progressivism,” a variant of liberalism that is both economically progressive and virtue-centered. So if it is true that virtue progressivism has an illustrious list of patron saints on which to draw, including figures such as Abraham Lincoln, Theodore Roosevelt, and Woodrow Wilson, and if it is true that the basic sentiments that constitute this tradition have yet to disappear from the general public, and even permeate a large, unformed center of the U.S. electorate, why is it that no political figure has emerged to marshal them? The reason seems to lie with the ideological commitments of the intelligentsia and activists within each party. The intelligentsia and affluent activists within the Democratic Party reject cultural conservatism, labeling its extremes “fascist.” Meanwhile, the intelligentsia and affluent activists within the Republican Party reject economic progressivism, labeling it “socialist,” and labeling its extremes “communist.” In other words, a

Introduction

5

modern-day virtue progressive has little chance of securing the support of the most important activists in either party, and without this support, could never secure the nomination for the presidency, or even rise to a position of political prominence. Activists are the most ideological members of any party (apart from the intellectuals themselves), and it is from the intellectuals that their ideological commitments are normally drawn. This observation brings us back to the question of the disappearance of the virtue progressive as an intellectual type. Intellectual life today is dominated by two ideological camps: one on the Right, with a strong commitment to the free market (often accompanied by the winking approval of a politically valuable cultural conservatism); and one on the Left, with a strong commitment to moral and cultural libertarianism, or at least “minimalism” (accompanied by vague sympathies—undifferentiated, inarticulate, and not seriously pursued—in favor of liberal-progressive economics). In other words, the intellectual world has bifurcated, with an overall leftward swing on cultural issues and a rightward swing on economic issues. If the educated elite of yesteryear were liable to be virtue progressives, leaning left on economic issues and right (or, perhaps more accurately, “upward”) on moral and cultural ones, today’s educated elite are liable to be “bourgeois bohemians” (or “Bobos” for short), the lived reconciliation of the opposite leanings.9 It is a legacy of the totalitarian encounter.

Totalitarianism and American Governance Projects Although the phenomenon I am discussing is well illustrated by contemporary U.S. politics, what follows is not a political history, tracking such things as the vicissitudes of parties, presidents, and policy. Rather, it is a history of governance—of governance ideals and their institutionalization. Specifically, it is an exploration of the impact of the encounter with totalitarianism on the formulation and institutionalization at the national level of a variety of “governance projects.” By the institutionalization of a governance project, I mean the embodiment of a governance goal (such as economic recovery and stabilization) in a governance structure (such as an executive bureau, a congressional committee, a court, an independent agency, or some combination of these or other institutions), equipped with a governance tool or tools (such as monetary manipulation or public works projects), with the particular deployment of a tool being described as a policy. What is the end, what are the tools, who wields them, and how?10

6

Introduction

Finally, conditioning all these is the necessity of building and maintaining, for any particular governance project, a political base—intellectual, economic, and electoral. The central role played by highly educated, expert personnel in the institutionalization and operation of most governance projects is what makes the libertarian swing of intellectual discourse relevant to this story. Like party activists, they, too, can lead democratic governments, in selected areas, away from the mushy center of public opinion and down determinate side channels. This wedge of “state autonomy” that activists and experts open between ordinary citizens and their government should not necessarily be viewed as a subversion of democratic government. Party activists, when acting responsibly, make a positive contribution to democratic government by prescreening candidates for experience, judgment, responsibility, and leadership capability. Experts make their contribution by attending to matters of detail on which few members of the public have definite or informed preferences. The average citizen has more pressing things to attend to than the content of bilateral trade agreements or the appropriate funding level for biomedical research, for example. Indeed, such matters generally fall outside the grasp of our elected leaders as well. Politicians may lay down a few policy goals and principles in their campaign, but once elected, they rely on their cadres of followers, and on the preexisting corps of professional civil servants who staff the government’s numerous agencies and bureaus, to fill in the blanks in their governance vision and to carry out most of the actual governance. Thereafter, the job of the politician, who occupies the position of public accountability in the system, is to serve as a sieve, separating the politically unviable policy proposals from the viable ones, as these percolate up from staff below.11 If this is even approximately the way democratic government works (and I make no greater claim here), then it will be no surprise that many things pass through the political sieve that owe more to reigning intellectual frameworks and commitments than to “the will of the people.”12 Our understanding of such matters has been greatly advanced in recent decades by political scientists working in the field of American Political Development. Stephen Skowronek and Theda Skocpol—pioneers in the field—emphasized from the beginning the role policy intellectuals have played in spearheading state-building efforts and shaping state-economy relations in the United States.13 And they have equally emphasized how structural factors have enabled, stymied, or deflected these state-building

Introduction

7

efforts. For example, they have shown how possibilities for state building are broadly shaped by such matters as constitutional structure and party organization, as well as by the received configuration of the state that one is trying to alter. My addition is to underscore the significance of ideology, or the climate of opinion, as a neglected factor in institutional development, and to demonstrate how it interweaves with structural settings to jointly determine outcomes. It is for this reason that roughly half the pages that follow are devoted to tracing transformations in intellectual culture sparked by the totalitarian encounter. These pages may stand as independent reflections on the postwar liberal mind. But in every case, I ultimately bring the discussion back to institutionalization, to show how the new intellectual climate influenced the selection and institutionalization of governance projects. Methodologically speaking, then, this book is an attempt to bring intellectual history and institutional history into closer association. As J. C. Sharman notes, it is impossible to explain the “velvet revolutions” of Eastern Europe without reference to the delegitimation of communist ideology.14 This book argues that it is impossible to explain, or explain fully, the decline of economic progressivism or the decline of the politics of virtue— in a word, the decline of what I call “virtue progressivism”—without reference to the fear of the totalitarian state that gripped the country in 1938 and has yet fully to let go.

The Decline of Economic Progressivism At first blush, the claim that the encounter with totalitarianism produced a rightward turn in American economic thought and practice seems to get things backward. It is the Reagan Revolution of the 1980s that we remember as marking this turn. The four decades prior to this—the decades in which one would expect to see the heaviest mark of antitotalitarian reaction—are, in contrast, remembered as the heyday of economic statism. They are the decades in which liberals looked to enlightened state action to solve society’s remaining economic problems—business cycle volatility, economic insecurity, environmental spoliation, poverty—through use of Keynesian fiscal policy and various forms of regulation and intervention. Three responses are in order. First, it is true that the decades after the war saw greater federal government involvement in the economic affairs of the nation than ever before. Nonetheless, the economics of this era were not as statist as we are apt to recall. For example, of the strategies advanced

8

Introduction

in the 1930s to end the Depression and tame the business cycle, Keynesianism was the most conservative of all, doing nothing to interfere in market relations or the price mechanism. Its basic prescription was simply to phase taxation and spending so as to provide countercyclical stimulus and dampening. Furthermore, the Keynesianism that was institutionalized was of the most conservative kind, more apt to secure stimulus through tax cuts than through the kind of targeted social investments envisioned by its original proponents. With regard to welfare and social security, the federal government took over responsibilities that had previously fallen to state governments, but these programs, too, left the market mechanism untouched and had a negligible impact on the distribution of wealth. As for Lyndon B. Johnson’s War on Poverty, it was intentionally administered through decentralized community action groups and the “maximum feasible participation” of beneficiaries, rather than from a Washington bureau. A glance at state-economy relations in Europe, or any part of the developing world, in these decades highlights just how limited was U.S. economic statism in comparison. The United States was exceptional in the degree of its commitment to the free enterprise system. Second, and more important, we fail to see the late 1930s as the time of a rightward economic turn only because so much of Progressive era economic thought and practice has been lost from our historical memory. We have come to see the late New Deal—that is, the New Deal circa 1939, which survived the war and became the baseline for subsequent U.S. life— as the culmination of four decades of progressive thought.15 In reality, it was a dramatic foreshortening. “Industrial democracy,” business-laborgovernment corporatism, “technocracy” and the running of the economy by engineers, long-term regional and national resource development, the “reatomization” of industrial combinations: these progressive governance projects—some complementary, some contradictory, but all quite governmentalist in orientation—all fell under the totalitarian shadow and were abandoned. Likewise, proposals for government ownership of utilities, for government competition in oligopolistic industries, for production-foruse communes, for workfare as an alternative to welfare—in short, the whole helter-skelter of indigenous and European reform visions and experiments—these were set aside. This is where the burden of my argument lies, showing that, but for the totalitarian encounter, much more of this progressive agenda would have been institutionalized. Finally, there is no denying that the Reagan Revolution brought a new rightward swing in economic discourse and (to some extent) practice. The

Introduction

9

result was the ascendancy, if not hegemony, of neoliberalism and market fundamentalism, both in the United States and (owing to U.S. influence) abroad. But this confirms, rather than contradicts, the thesis. Invidious comparison with the economic unfreedom of socialist and communist countries was a central trope in Ronald Reagan’s case for market freedom. The Reagan presidency sent a fresh wave of antitotalitarianism washing over economic policy, as over foreign policy. This was not an about-face; it was merely continuing a push toward the right that had begun in the late 1930s.

Alternative Hypotheses Since few commentators have seen the late 1930s as the time of a rightward turn in U.S. political economy, few have offered an explanation for it. But of those who have, the overwhelming explanation has been the pragmatic one, that the early New Deal was a failure. Franklin D. Roosevelt kept experimenting until he found what worked, and “planning” was not it. The only problem with this explanation is that it fails to accord with the evidence. The greatest disappointment of the early New Deal was the performance of the National Recovery Administration (NRA)—the 1933 program charged with reviving U.S. industry. Accordingly, it is the episode most often cited as the New Deal’s cautionary tale. At its heart, the NRA was a collection of “code-writing authorities” that promulgated guidelines for production and pricing levels in each industry. These authorities were meant to be representative bodies in a corporatist experiment in balancing the interests of business, labor, and consumers; however, the dearth of government administrators and the plethora of business representatives on the authorities meant that, in practice, the NRA tended toward business cartelization. The result, if anything, was the further restriction of production and the restraint of price competition, which did nothing to revive business activity. Yet, while everyone drew lessons from the NRA experience, almost no one drew from it the lesson of the unworkability of organized intervention in the economy. This was only a retrospective judgment, after totalitarian fears had turned the tide against such intervention. At the time, the failure only deepened the conviction of New Dealers that the fate of the industrial economy could not be left to businessmen alone. All urged strengthening the government’s hand in the program. Meanwhile, among intellectuals outside the New Deal circle, the talk was even more radical, with the domi-

10

Introduction

nant voices calling for businessmen to be cut out of the equation altogether, to be replaced by popular—or perhaps better yet, technocratic—control of the means of production. And well they might have come to this conclusion, for those areas of the economy in which recovery was most marked during the early New Deal were precisely those in which central governmental control had been most strongly asserted and placed in the hands of economic and technical experts. Specifically, this was the agricultural sector, under the Agriculture Adjustment Administration (AAA), and the Tennessee River watershed, under the Tennessee Valley Authority (TVA). Clearly something other than practical failure is necessary to explain the turn away from government intervention. The story of the rightward turn in American economic practice is paralleled by, indeed is intertwined with, the story of the rightward turn in American economic thought. It is difficult to imagine today, but prior to World War II, the American economics profession was, to most minds, synonymous with radicalism. In actuality, the profession always had its fair share of economic conservatives, and no American economist of note ever argued for a Marxist-style economic revolution, or for the abolition of private property. Nevertheless, state-sponsored reformism was definitely the impulse of the profession’s founding generation, with Richard T. Ely and Henry Carter Adams as classic examples. And down to the 1930s, the profession continued to nourish a wide range of reformist thinking, as well as a wide spectrum of methodological approaches—classical, neoclassical, Marxist, historical, and institutionalist. The Great Depression brought these reformist approaches into the limelight, while pushing the conservative, free-market approaches into the shadows. Yet hardly a decade later and one finds not just economists, but all American intellectuals, more strongly committed to the free-enterprise system than at any prior point in the century. And within the discipline of economics proper, the immediate postwar years witnessed the rehabilitation, reconstruction, and rapid rise to hegemony of neoclassicism, the least institutionalist, most market-oriented approach of all. The usual explanation provided—particularly by neoclassical economists themselves—is again the pragmatic one, that neoclassicism was theoretically and empirically superior to its rivals. There are strong reasons for doubting this Whiggish tale. As the economist Oliver Hart wrote in 1989, “an outsider to the field would probably take it for granted that [neoclassical] economists have a highly developed theory of the firm. After all, firms

Introduction

11

are the engines of growth of modern capitalistic economies, and so economists must surely have fairly sophisticated views of how they behave. In fact, this is far from the truth.”16 Classical, Marxist, historical, and institutionalist schools of economics had all emphasized production as the key to the economy, and therefore had developed views on how economic firms operate. In contrast, neoclassicists focus on exchange. In the neoclassical world, total value is increased, not by making more goods, but by getting goods into the right hands—the hands where they are (effectively) most valued. Reflection on the firm thus became peripheral to the discipline, and what history it has amounts to a series of attempts to reduce the firm to the paradigm of ordinary market exchanges. Indeed, it is not unfair to describe it, since World War II especially, as a series of apologetics arguing that voluntary transactions, rather than authority relations, are the defining feature of economic firms. Even worse, neoclassical assumptions (such as the “givenness” of individual preferences, the “givenness” of technology, and the costlessness of contracting) leave it unclear why production occurs in hierarchically organized, asset-owing, long-term-contracting entities like firms, as opposed to occurring simply through short-term bilateral contracts in the open market, with day-to-day hiring of equipment and labor. In other words, not only have neoclassical economists failed to provide a serious account of the operation of firms, they have not even been able to explain why firms exist in the first place!17 A science of wealth that has nothing to say about how 90 percent of wealth is generated has serious problems. Once again, we must look to something other than pragmatic success to explain its rise to predominance.

The Decline of the Politics of Virtue In the wake of the exoneration of the four New York police officers who killed Amadou Diallo, an unarmed black man, in a hail of bullets, Orlando Patterson, Harvard sociologist and himself an African American, contributed an editorial to The New York Times that moved beyond the debate over police brutality to consider the “deep-seated contradictions in our conception and practice of personal liberty” exposed by the incident. Of course our liberties have to be protected from criminals among us. But there are two complementary ways of going about this: we can take preventive measures, like the rehabilitation of those who commit

12

Introduction

crimes, to reduce the incidence of crime before it happens, and we can punish those who do commit crimes, giving the police and courts strong powers of enforcement and incarceration. America had a history of using preventive programs prior to the 1970s—not only those that stressed the rehabilitation of convicts, but also others aimed at children and young people, like the home visiting program Healthy Start, which was intended to reduce child abuse (perhaps the greatest social cause of criminality), close supervision of juvenile offenders and guidance programs for youths at risk of falling to crime. But over the last three decades, rather than seeking a balance, the American approach has become almost entirely punitive.18 Why the change? It is not because of the success of the punitive approach. “Nearly all criminologists consider our punitive approach a disaster. There is no evidence that it has had any long-term impact on reducing crime, and it is certain that excessive incarceration makes career criminals of many of the nonviolent offenders whom we throw together with hardened, violent ones.” Rather, Patterson suggests, the reason is “our extreme commitment to antipaternalism, to the principle that the state should avoid telling citizens how to lead their lives.” As reasons go, this is not an ignoble one. However, “[o]ur rejection of a preventive approach . . . creates a paradox in that we are forced to surrender more and more of our liberty to the increasingly powerful police operations, like the street crimes unit in New York, and the draconian laws we pass in order to guarantee safety.”19 Having failed to intervene in a manner that would turn individuals away from criminality, we mop up after the fact, deploying robust forces of police, courts, and prisons to handle the situation, and accept the occasional misuse of force as the price of doing business. Patterson’s plea for more public paternalism is unusual on today’s scene. As Patterson alludes, in recent decades most liberals, whether of the Left or Right, have embraced some version of the ideal of “state neutrality,” the notion that government should not favor one vision of the good life over another, but should provide a neutral framework for the working out of sovereign individual choices. Disagreements among liberals have amounted to differences of view on what rights and political arrangements the ideal of a neutral framework requires. For example, liberals on the Left argue that it requires a scheme of civil liberties, as well as rights to education, health care, and a minimum income, on the ground that these are prerequisites for a

Introduction

13

meaningful choice about the kind of life one wants to live. Liberals on the Right (usually denominated “conservatives” in today’s political vernacular) concur with the need for civil liberties, but claim that the economic redistribution entailed by Left liberalism violates the rights of individuals to the fruits of their own labor and imposes on them other people’s valuation of the “correct” distribution of goods. They argue instead for a strict scheme of private property rights.20 Finally, multicultural liberals argue for the addition of various group rights to the basic liberal framework of political and civil rights, on the grounds that it will make the constitutional system more truly neutral among citizens.21 The idea that liberal institutionalism might itself have moral and cultural preconditions, and that public authorities might bear a responsibility for helping maintain these preconditions, is seldom even brought up for consideration. That is how strong the connection has become between liberalism and moral minimalism. This has not always been the case, as Patterson notes. Indeed, it reflects a sea change. While antipaternalism runs strong in the United States—stronger than in any other Western, liberal democratic nation—until recently it always encountered strong, counterbalancing opposition—typically from the most educated, most cosmopolitan classes. We see this in the struggles of John Winthrop and the Puritan ministers against the spiritualists and antinomians, the Federalists against the Antifederalists, the Whigs against the Jacksonians, and the “expert progressives” (Herbert Croly and Walter Lippmann, for example) against the laissez-faire conceptions of the Lochner v. New York era and also against the more populist progressives. Of course, the paternalism these men defended didn’t take the hierarchical form typified by the medieval Catholic Church. They were all good democrats, and even good individualists, believing that the good of the individual was the highest collective goal. But they reasoned that if one removes the external discipline of hierarchical subordination, one must attend all the more closely to those institutions that cultivate and reinforce inner discipline, or self-control, lest liberty turn into license. This meant using public authority to sustain and shape the institutions of civil society (familial, educational, religious, legal, economic, associational), as these shape and sustain human character. Liberal democracy, they reasoned, needs a sociology of virtue. But one seldom sees this case made today, especially among the intellectual classes.22 Is it because the environment in which our children grow up has been cleaned up, so we no longer need worry about its effect on their character? Hardly. The coming of the “information age,” for instance, has given not only adults but also children unprecedented access to unfiltered

14

Introduction

text and video. Trouble that used to be a neighborhood away is now only a “click” away. Those who have not been equipped with internal filters, it is not unreasonable to suppose, will be the most vulnerable to the dross, inflamed with self-damaging and other-damaging impulses. Arguably, then, all the problems that concerned our nineteenth-century forebears have only been magnified with the passage of time. Yet it often seems that the most educated, most ethically concerned of people today—the very ones who take the greatest private efforts to provide their own children with rich moral environments—are also the ones most opposed to having public authority get involved, whether directly, through regulation, or even indirectly, through government support for the teaching of moral values in schools or government support for the social work of churches or of private charities with moral or religious orientations. Government must maintain a policy of strict cultural and moral noninterference. The very people whom one would expect to be the staunchest defenders of virtue politics, who understand it best and have the most to lose from its decline, refuse to take up collective arms against the barbarians, and even fight to keep the city gates open.

Alternative Hypotheses What accounts for the rather sudden turn of American intellectuals against the politics of virtue and toward the ideals of expressive individualism and state neutrality? Michael Sandel has done more than anyone to draw attention to the novelty of the ideal of state neutrality in the United States. The nineteenth- and early twentieth-century America that he uncovers is awash in “formative politics,” not only enshrined in the law, but in economic policy as well. Then quite suddenly, around the time of World War II, the waters begin to dry up. By 1947, the neutrality ideal had received its first important public invocation, in a Supreme Court decision on churchstate relations,23 and from there it moved from victory to victory. Sandel’s interest has been to document the rise of neutralist, “proceduralist” liberalism in the United States. The narrative of Democracy’s Discontent is confessedly sketchy on the question of the reasons for its rise. In a subsequent essay, Sandel recapitulates his main suggestions: Broadly stated, the rise of the procedural republic might be explained as follows: the advent of a national, and now global economy complicated the republican project of subjecting economic power to demo-

Introduction

15

cratic authority. Meanwhile, the emerging consumer society held out an alternative, privatized vision of freedom less demanding than the republican vision of freedom as self-rule. The great waves of immigration and the growing diversity of the nation rendered the formative project more difficult, and so heightened the appeal of a public philosophy that professed neutrality toward the ends its citizens espoused.24 In short, on this account, the economic and ethno-cultural preconditions of democratic control and formative politics had eroded so far by midcentury as to leave liberal minimalism the only game in town. It is certainly plausible to adduce cultural diversity and market expansion as obstacles to formative politics. But if these are the relevant causal forces, then it remains a mystery why the neutrality ideal should have emerged at precisely that point in the twentieth century when they were at their weakest. Had cultural diversity reached new heights at midcentury? In 1924, by act of Congress, immigration had been drastically curtailed—virtually eliminated for Asians, and severely limited for Slavs, Italians, Eastern European Jews, and, of course, Africans.25 Meanwhile, the immigrants who remained were subjected to energetic rounds of “Americanization,” originally at the hands of private organizations, such as Jane Addams’s Hull House or the Ford Motor Company’s sociology department, but after U.S. entry into World War I, through government-sponsored campaigns as well, including citizenship education classes in public schools and restrictions on the teaching of foreign languages.26 As a final force for assimilation, the rush to the suburbs in the years immediately following World War II dissolved many of the old urban ethnic enclaves. In consequence, the U.S. populace in the years following World War II was culturally more homogeneous than it had been at any time in the century. Had the scale of economic integration at midcentury finally exceeded democracy’s grasp? As for “globalization,” the world’s national economies, including the U.S. economy, were much less globalized at midcentury than at the beginning of the century—thanks to two world wars, a nascent Cold War, and the continuing force of protective tariffs that were only gradually reduced from Smoot-Hawley Tariff Act levels. Indeed, only at the close of the twentieth century did the level of global integration again compare with that at its beginning. The domestic economy, however, did indeed experience a continuation of the trend toward national integration that had assumed prominence in the late nineteenth century.27 Nevertheless, it was an odd time to abandon formative aspirations on this ac-

16

Introduction

count, considering that the struggle of Franklin D. Roosevelt and the New Dealers for the right to regulate the economy at the federal level had just been won. Sandel is a critic of neutralism. Yet by appealing to cultural diversity and economic integration to explain its rise, neutralism comes to appear inevitable, and Sandel’s narrative is discounted as a virtuoso expression of nostalgia for an unrecoverable world. Doubtless, cultural diversity and economic integration do pose obstacles to certain modes of formative politics, and to the political pursuit of certain goods. But they are implausible as reasons for why the neutrality ideal arose when it did, considering that, at that moment, they were in ebb. Might they nevertheless explain why the ideal has perdured, given their much discussed flow in the final decades of the twentieth century? Perhaps. Yet these same forces have done little to staunch the enthusiasm for formative politics on the part of many other nations, such as France.28 Nor is it accurate to say that diversity has gotten so great in the United States that all consensus has evaporated. Rather, the ideal of neutrality is being imposed in various arenas of life even when a consensus on values remains intact. As writes Mary Ann Glendon, the leading U.S. scholar of comparative family law: it would be a mistake to characterize the new family law as merely having kept up with the times and as having simply substituted new, widely shared ideas about family life for old ones. In fact, the family laws that have emerged over the past two decades in the United States and Western Europe are often as much at variance with prevailing social attitudes and practices as were the traditional systems they have replaced . . . [D]iscrepancies are particularly apparent in areas where family law has been influenced by new ideas, not about families, but about law and morality. Such ideas include the problematic notions that courts and legislatures should not attempt to impose “values” (except for equality, individual liberty, and tolerance); and that “values” (except for equality, individual liberty, and tolerance) are a matter of subjective taste or preference. The result is often that other normative legal propositions have tended to be phased out, even when they are quite widely shared. As we have seen, these legal developments have gained more ground in [the] United States than elsewhere.29 If this is the real story of neutrality’s inroads, not only in the area of family law, but in other areas as well—that is, if the pursuit of state neutrality

Introduction

17

is more an ideological imperative than a practical one—then neutralism is revealed to be both less inevitable and more easily shed than widely believed. It also means that some other explanation is necessary to account for its rise and shine.

Organization of the Book Americans, I have noted, ascribe two main traits to totalitarianism. Parts I and II are primarily concerned with the first trait. That is, they are concerned with the American reaction against totalitarianism understood as state control of individual activity. Thus they focus on the economy and state-economy relations, where the issue of the control of individual activity is most pointed. Parts III and IV take up the reaction against totalitarianism understood in the second sense, as state control of thought—a reaction especially against state imposition, or even indirect cultivation, of an ideology or value system. Their focus is on democracy and constitutional law. Part I overviews the history of American attitudes toward the central state, and the history of American state-building efforts, prior to the encounter with totalitarianism, so that we may better gauge its impact. The American administrative state, relative to the states of other industrialized countries, is, although not “weak,” nevertheless noticeably narrow in its penetration of American society—as evidenced by the spotty social safety net it maintains, and its light intervention in the private economy. Explanations of this most often make appeal to the reputedly genetic antistatism of American liberalism. Certainly such antistatist sentiments have always existed, but the complete story is more complicated. It is worth noting, for example, that the strongest opposition to U.S. state-building—whether in the nineteenth century or the twentieth—has been concentrated in the least liberal region of the nation, the American South. What is more, the United States generated a strong and growing state-building movement in the latter half of the nineteenth century and continuing into the Great Depression, with American social scientists and progressive intellectuals leading the way. Harnessing the industrial economy, they argued, required the United States to supplement, perhaps even supplant, its nineteenthcentury Jacksonian democracy with a European-style administrative state. The meager success of this movement prior to the election of Franklin D. Roosevelt had more to do with issues of constitutional structure, the phasing of national development, and the presence of a preexisting, nonadministrative “state of courts and parties,” than with antistatist sentiment

18

Introduction

per se. By the time of Roosevelt’s election, the Great Depression had swept away most of these structural obstacles to state-building, and for a brief period, it looked like the pent-up progressive forces in the country would use the occasion to erect a strong state and fundamentally transform statesociety relations—until the encounter with totalitarianism. Part II examines the impact of totalitarianism on U.S. state-building and state-economy relations. With regard to state-building, progressives generally desired to shift governmental authority away from courts and legislatures and into the hands of chief executives and experts. This was part of a gambit to increase the vigor of governance and to minimize the opportunities for log-rolling and corruption by cutting off the influence of political party machines and organized economic interests. The idea was not to undermine democratic governance, but to vindicate it for an industrial age by providing a governmental structure in which the genuine public interest could again be pursued. Executive reorganization along these lines appeared a sure thing when Roosevelt assumed office, and surer still after his resounding victory in 1936. Even after Roosevelt submitted his ill-fated “Court Packing” bill to Congress in early 1937, a head count predicted easy passage for the Executive Reorganization bill that followed on its heels. But by the time of the final vote, with Nazi Germany gobbling up its neighbors and fears of totalitarian dictatorship rising to new heights, earnest legislators, including many Democrats and friends of the president, succeeded in killing the bill. Thus, while Roosevelt was able to press upon the public the idea that the president bears ultimate responsibility for the economic welfare of the nation, he largely failed when it came to instituting the governance structures that would have given the president the control over the executive branch that such responsibility seemed to call for. The country was left with a greatly expanded executive, but control over it remained fragmented, preventing either efficient or responsible national governance. The hysteria of 1938 foiled the best and last opportunity for centralizing authority in the office of the president, and meanwhile, the very ideal of a strong independent national executive slipped away, such that to this day, the president is left to use the weak planning instrument that is the Office of Management and Budget to try to bring consistent policy direction to the sprawling executive apparatus nominally under his charge. The collapse of the effort to erect a European-style administration state went hand in hand with the collapse of all the more ambitious efforts to transform state-economy relations. Again, the encounter with totalitarian-

Introduction

19

ism was decisive. Going into 1933, all believed that the terms of market capitalism needed to be, and would be, fundamentally transformed. The Great Depression completely delegitimated the doctrine of laissez-faire; its erstwhile advocates excused themselves with the argument that it had been the right policy for nineteenth-century conditions, but ruefully conceded that these conditions no longer prevailed. Furthermore, the Depression was followed by the government’s visible, and largely successful, hand in the wartime economy and economic recovery. Nonetheless, it was Friedrich Hayek’s antiplanning screed The Road to Serfdom that was the postwar blockbuster. As fate would have it, Hitler and Roosevelt rose to power in the same year—a fact that encouraged comparison of their programs for economic recovery.30 Predictably enough, critics of New Deal economic programs latched on to the comparison and began to denounce Roosevelt as a would-be totalitarian dictator.31 Of course, there had always been resistance, especially in business quarters, to greater public control of the economy, but the ravages of industrial capitalism were such that, among intellectuals, and even among neoclassical economists, there had been growing support for experimenting with a variety of controls, even while rejecting full-blown socialism. But the fear of totalitarianism became the great simplifier. The definition of Americanism as the polar opposite of fascism and communism gave laissez-faire conceptions of economic order a new lease on life, and the dichotomous thinking of the age gave credence to the extreme position of Hayek and other émigrés of the Austrian school of economics that any economic control by the state must, through an inexorable social logic, eventuate in totalitarian control of the whole society. It was all or nothing. While this view never became a majority opinion even among economists, Americans almost without exception, including most former progressives, emerged from the encounter with a much more sympathetic view of the private property, free-enterprise system. It was thus the ideological opposition between free and totalitarian economies, more than any great failure of U.S. economic planning during wartime, that brought an end to U.S. flirtation with direct government participation in the direction of the economy. Chief among the casualties of this sea change in opinion were a host of economic governance projects that had been inaugurated by the early New Deal. This includes the project of economic stabilization through government intervention in the price-production mechanism, as undertaken by the AAA and the NRA. It also includes the project for planned economic development, as undertaken by the TVA (the strong version) and the

20

Introduction

National Resources Planning Board (the weak version). And it includes the project for inducing competition through vigorous antitrust enforcement and government-sponsored “yardstick” companies. With the major exception of the NRA—which in practice was little more than an exercise in collective corporate self-governance—all these projects enjoyed substantial success. Yet all were either scuttled or scaled back and not further replicated. Often multiple factors sealed their fate, but in all cases, and sometimes decisively, it was the fear of a totalitarian state that turned the tide against them, despite their success. What survived of the New Deal were the two economic governance projects that left economic relations untouched: compensatory fiscal management, or “Keynesianism” (and even this was quickly taken in a conservative direction, from social Keynesianism to warfare Keynesianism), and compensatory public relief, or “welfare” (and this only at a minimal level and without the “workfare” of the Works Progress Administration (WPA) or the Civilian Conservation Corps (CCC) that might compete with private industry). In other words, contrary to received opinion, the New Deal, judged by its own standards, failed of its institutionalization, leaving the United States, alone among developed countries, without even so much as a standing committee to generate advice on long-term economic development goals. The state was reduced to capitalism’s ambulance wagon. Yet ironically, while fear of totalitarianism dashed New Deal hopes to build an administrative state capable of injecting planning principles into the civilian economy, the same fear of totalitarianism led to the erection of a national security state capable of projecting U.S. power around the world, and tasked with injecting planning principles into the national security economy (the “military-industrial complex”). Part II recounts, with institutional detail, the dashing of New Deal plans for the civilian economy on the shoals of antitotalitarian reaction and the institutionalization of warfare Keynesianism and the warfare state in its stead. Finally, Part II tracks the rightward turn in American economic theorizing that accompanied the about-face on economic reform. In the early decades of the twentieth century, American economic thought was spread over a broad spectrum, with significant representation of Marxist, historical, institutionalist, proto-Keynesian, classical, and neoclassical approaches. The advent of the Great Depression cut off the right-hand side of this spectrum, and for a season, talk of economic democracy, technocracy, and overhead planning dominated the popular economic press. But the very same totalitarian encounter that foiled progressive reforms of the economy re-

Introduction

21

versed the fortunes of the various schools of economic thought. By the end of the war, the right-hand side of the spectrum had been revived and it was the left-hand side that was cut off. In the discipline of economics proper, everything to the left of Keynesianism—the most conservative of the schools supporting some form of government intervention—was cut off, to the point of being systematically excluded from the leading economics journals. In the disciplines of political science and especially sociology, more of the left-hand side of the spectrum was retained. But even here, what had once been the “middle way” of support for a “mixed economy” now became the left edge of opinion.32 What is more, the general disavowal of government intervention in the price-production mechanism meant that, over time, social scientists ceased to study the economy at the level of institutional detail. The result has been a “deinstitutionalization” of the economic imagination, and a general drift toward abstract, contractualist, “choice” models. Part III examines the impact of totalitarianism on the “meaning” of American democracy, especially among social science intellectuals. In the early decades of the twentieth century, the reputation of popular democratic government was at an all-time low among American intellectuals, who skewered it for its inability to solve the problems of industrialization, urbanization, and immigration. The drift of academic and progressive opinion was toward increased “social control” under the guidance of experts in government and other quasi-public institutions. As Walter Lippmann, one of the most trenchant critics of American democracy before the war, wrote in 1914 to much critical acclaim, “We can no longer treat life as something that has trickled down to us. We have to deal with it deliberately, devise its social organization, alter its tools, formulate its method, educate and control it.”33 In the early 1930s, the immobility and ineffectiveness of the United States’ elected leaders in the face of a seemingly endless economic depression was for many the last straw. “To attempt a defense of democracy these days,” wrote one observer, “is a little like defending paganism in 313 or the divine right of kings in 1793.”34 The encounter with totalitarianism changed all this. Faced with the new and increasingly terrifying regimes of Italy, Germany, and the Soviet Union, American intellectuals rallied to the defense of democracy and the American way of life. But in drawing invidious comparisons between American democracy and totalitarianism, they heightened the contrasts until American democracy was distorted into a simple photographic negative of totalitarianism. That is, the encounter with totalitarianism produced

22

Introduction

both a recommitment to American democracy, and a reinterpretation of it. For starters, the emergence of Hitler and Stalin as the ultimate social engineers led American intellectuals to forget their erstwhile progressive allegiance to elite guidance, right when the New Deal appeared to make it a reality. Lippmann now criticized all those “men who call themselves communists, socialists, fascists, progressives, and even liberals,” who “are unanimous in holding that government with its instruments of coercion must, by commanding the people how they shall live, direct the course of civilization and fix the shape of things to come.”35 In reality, World War II and the Cold War would give those social scientists with ties to the national security apparatus a wide array of platforms for developing their ideas on social control—especially ideas on the propagandistic manipulation of significant symbols—although, in an inversion of progressivism, these efforts would not be directed to uplift and reform, but to strengthening attachment to the existing U.S. order.36 But this national security reality was no part of the new social scientific image of American democracy. If totalitarianism meant social engineering by elites, then democracy must mean popular control. Other contrasts followed. Strangely enough, the most important came out of a debate over methodology in the social sciences. During the 1920s and 1930s, many social scientists declared themselves for a “value neutral” approach to the study of society. But the rise of the European dictatorships brought them under a stinging indictment from their methodological opponents—advocates of natural law approaches, especially—that the “moral relativism” implicit in their value-neutral approach left democracy without a moral defense and thus paved the way for the dictators’ philosophy that “might makes right.” In other words, value-neutral social scientists were protototalitarians! The survival of democracy required a recommitment to the notion of absolute values. This charge resonated with the broader public, and it laid the intellectual groundwork for modern conservatism and for the culture wars of future decades. But it was not this interpretation of totalitarianism that won out among academic intellectuals. The social scientists were able to turn the tables on their detractors, arguing that it was the latter’s “moral absolutism” that led to totalitarianism, since it licenses a caretaker elite. True democrats, they argued, were skeptical about value claims. Indeed, value skepticism, even relativism, was the chief rationale for a democratic form of government, because it was the form of government in which no value stance was taken as final.37

Introduction

23

The upshot was that the social scientists translated their ideal of a valueneutral science into an ideal of a value-neutral constitutional order. One important lesson to be drawn from this is that the ideal of the “neutral state” that has caused such controversy in political theory in recent decades is not the logical and inevitable culmination of liberal theory, as both its defenders and detractors have claimed. Indeed, liberal theory is not even part of its pedigree! Rather, the neutrality ideal is a historically contingent and theoretically overdrawn response to the rise of totalitarianism in Europe and Asia. It is a child of democratic theory, born of the effort of academics to square their commitment to value-neutral social science with their commitment to democracy. In sum, the intellectual underpinnings both of modern conservatism and modern liberalism stem from the late 1930s debate over scientific methodology and the etiology of totalitarianism. The value-neutral ideal would find its most famous expression in the 1970s, in the social contractarianism of John Rawls. But its more immediate expression was in postwar “consensus theory,” or “process theory,” where the contrast with totalitarianism was more explicit. If totalitarianism was ideological, extremist, morally absolutist, and dominated by a single set of values imposed from above, these theorists argued, then, by implication, American democracy must be nonideological, moderate, morally skeptical, multivalued or “pluralist,” and moved only by everyday interests as these spring organically from society. Power must be dispersed and formative politics off of the agenda. American democracy, on this understanding, was neither an example of majority rule (or “tyranny of the majority”) nor of minority rule (or “dictatorship”), but of “minorities rule.” The image that resulted was of American democracy as “interest-group pluralism,” and one of its leading consequences was to legitimate the entry of wellorganized, well-funded private interest groups into the policy-making process—precisely what progressives had been seeking to minimize. Part III concludes by tracing the swelling of pluralism into “hyperpluralism,” and takes note of the legislative standstill that accompanies it as Congress gets tied down by ever-vigilant interest group lobbies. Part IV examines the impact of totalitarianism on U.S. law, especially constitutional law, and demonstrates its decisive influence on both judicial values and judicial authority. The first chapter of Part IV documents the influence of the encounter with totalitarianism on postwar judicial values. The main medium of this influence was the wartime rediscovery of the United States’ civil liberties tradition—a tradition that had been eclipsed by the nineteenth-century apotheosis of majority rule, the common law’s

24

Introduction

defense of local “police powers,” and by progressivism’s emphasis on the public interest over individual interests. In response to the totalitarian tar brush that critics used to paint Roosevelt’s economic programs, defenders of Roosevelt’s programs, including Roosevelt himself, while completely rejecting the imputation that they were imposing totalitarian economic controls, searched for a different plane on which to contrast American democracy and totalitarianism. What they found were civil liberties. If fascism meant state control of mass communication, America stood for freedom of speech and of the press. If fascism meant persecution of religion, America stood for freedom of religion. If fascism meant the restriction of public gatherings and of the movement of peoples, America stood for freedom of association and freedom of movement. If fascism meant arbitrary government, the United States stood for due process and the rule of law. And the most difficult contrast of all: if fascism meant racism, America stood for racial and ethnic harmony and cooperation. These values, always more prominent in the writings of European classical liberals and radicals than in the practice of American democracy, were now touted as the very essence of America. Expressive of the change, in 1941 the Roosevelt administration celebrated with great fanfare the 150th anniversary of the Bill of Rights—an anniversary that had gone unremarked in 1841 and 1891.38 Shortly thereafter, the Supreme Court, now dominated by Roosevelt men, began to issue decisions (themselves saturated with the freedom/totalitarianism dichotomy) “incorporating” the Bill of Rights through the Fourteenth Amendment, so that its protections would apply not just against the actions of the federal government, but also against those of state governments. “Freedom” pulled ahead of “democracy” as the official credo of the United States. America the democracy became America the “free society.” The straightforward explanation for the Court’s postwar value orientation is thus, as I document extensively, that the Court participated in this antitotalitarian conversion to civil libertarianism. The real puzzle is how the Court, rather than legislatures, managed to become the leading institutionalizer of these values. After all, the postwar Court was dominated by erstwhile progressives, for whom “judicial deference” to the legislature had been a watchword. My answer to this long-standing puzzle is more complicated, but it too harks back to the totalitarian encounter. One precondition was the renewed enthusiasm for the “rule of law” generated by the encounter with totalitarianism. But there were two obstacles to making this a reality. First, in the run-up to World War II, “legal

Introduction

25

realists” had succeeded in toppling the traditional justifications for judicial review, such as the notion that government action is constrained by “natural law” or the common law. Second, the postwar Court rejected the notion that it might replace these traditional substantive constraints with substantive constraints of its own devising—to do so would be to impose values of its own on the public, and this, the Court concurred with academic opinion, would itself be a totalitarian act. Was it possible to formulate a new, truly neutral ground for judicial review, so as to vindicate the idea of the rule of law? To meet this stringent demand, the Court made its way to new, more radical interpretation of civil liberty and due process. Instead of interpreting these rights as expressions of higher law, the Court recast them as protections against the imposition of values by government, in effect constitutionalizing the antitotalitarian ethic of not imposing values. Accordingly, the Court could argue that its revolution in civil liberties, civil rights, and due process did not represent an imposition of values by the Court, but rather a prohibition by the Court on the efforts of local, state, and national majorities to impose their values on unwilling individuals and minorities. In sum, the Court has thrived on a double legacy from the encounter with totalitarianism. First, the encounter revived (and nationalized) the United States’ civil liberties tradition. Second, the encounter led intellectuals to anathematize government imposition of values. The Court brought these two developments together, arguing that civil liberties were protections against the imposition of values by the government. And the Court recast itself as the (neutral) enforcer of this new ideal of “state neutrality” (rather than as the enforcer of natural law or the common law). This does not mean the Court has always been neutral in practice; indeed, the neutrality ideal may not be practicable, or even coherent. What it does mean is that the Court has been able to reverse its fortunes because it has been more successful than competing constitutional actors (state and national legislatures, government executives and agencies, and even nongovernmental organizations) in concealing its discretion behind a mien of principled neutrality in an era in which neutrality has become the touchstone of legitimate authority. Part IV takes up each of these events: first, the shift of U.S. values in a civil libertarian direction (broadly penetrating the educated classes through officially propagated wartime ideology); second, the reformulation of liberal social theory in a neutralist direction (the work of academics); third, the reinterpretation of civil libertarianism as neutralism (which not only

26

Introduction

rationalized, but radicalized these values); fourth, the reconceptualization of the Court as the neutral guarantor of neutrality (which justified the Court’s imposition of these values); and finally, the consequences of this judicial gambit for U.S. constitutional practice and for American life more generally. Specifically, it has meant a sizeable shift of authority within the U.S. constitutional system to the Supreme Court, and it has sparked the “culture wars.”

Three Waves of Liberal Theory The lapidary summation of these developments is that the encounter with totalitarianism closed the Progressive era and opened the Liberal era. In economics, attempts to reorient industry from private profit to public use were abandoned, and free enterprise reaffirmed. In politics, outside of national security circles, the notion of “social control” was rejected—whether in the form of a formative politics of moral uplift, or a scientific-technical politics of expert government—and government-by-interest-groups embraced. In law, the encounter brought the end of judicial deference, the embrace of civil rights and civil liberties, and the neutralist reinterpretation, and radicalization, of them. Finally, in culture, the encounter sowed the seeds of our own era—the era of the culture wars—in which “local class America” has mobilized against these liberal legal advances, and against the whole neutralist, “relativist,” “secular humanist” reinterpretation of the United States that accompanies them. At a deeper level, the encounter with totalitarianism marks not only the end of the Progressive era but also a rupture in the liberal tradition itself. The rupture is not so much at the level of general principles, but at the level of their interpretation and institutionalization. Religious toleration, freedom of discussion, restrictions on police behavior, constitutional government based on a separation of powers, an economy based on private ownership and freedom of contract—as general principles, these came together in the American colonies in the early eighteenth century and have been more or less in continuous practice here ever since.39 However, the terms in which these principles have been defended—the terms of liberal theory, broadly speaking—have changed over time, with consequences for the way in which they have been institutionalized. Have the terms of liberal theory really changed? I will not address this issue head-on until the second half of the book. But since it is one of the book’s most important theses, a few preliminary remarks are in order.

Introduction

27

In the received narrative of liberalism, shared by liberalism’s critics and defenders alike, liberal theory forms a more or less continuous tradition, with contemporary ideals of “state neutrality” and individual autonomy presented as the logical and inevitable culmination of classical liberal premises.40 In contrast, I see three distinct waves in the history of liberal thought. In the first, “classical,” wave, liberal theory functioned primarily as a rhetoric of resistance to established political and religious authorities. Unsurprisingly, then, classical liberal writings were suffused with large claims about the competence of the individual to manage his own affairs.41 This characteristically included the epistemological claim that individuals enjoy unmediated access to natural, moral, and religious knowledge, and the political claim that all authority is an artificial construction, resting at some level on individual consent (John Locke of the Two Treatises of Government). Call this “autonomistic” liberalism, in reference to its central premise of individual autonomy. As this suggests, classical liberalism was not born of moral skepticism— a point worth noting in light of later developments. Indeed, in this period, skepticism about the capacity of human reason to know the moral law (whether from Scripture or from Nature) tended to drive people to the authoritative traditions of the Roman Catholic Church.42 Liberalism was born, rather, out of confidence in the existence of a moral (divine) law, and out of confidence in the individual’s capacity to know and act on this law. Since the moral law is accessible to all, and since a common morality is a sufficient basis for public order, religious conformity need not be exacted. But while this line of reasoning lowered the political significance of religion, it elevated the political significance of morality. Classical liberals accordingly maintained a sharp distinction between liberty (acting in accord with moral law) and license (doing what one list).43 The epistemological and political premises of classical, autonomistic liberalism were of course roundly criticized throughout the seventeenth and eighteenth centuries by political and religious conservatives. But something quite remarkable happened beginning in the eighteenth century and continuing throughout the nineteenth and early twentieth centuries: wherever liberal parties gained the upper hand—first in Britain, then in the United States and France—one finds small but significant insurrections against liberal autonomism from within the liberal camp. Although a variety of reasons may be adduced for this break, pride of place must be reserved for the rather straightforward consideration that, in these countries, liberals were finally being called on to govern. As François Guizot

28

Introduction

complained when faced with this task, existing (autonomistic) liberal theory limited one to either oppositional politics (the effort to preserve individual autonomy against state power) or revolutionary politics (the effort to translate individual autonomy into popular sovereignty). A liberal regime needed a positive theory of governance, and a new attitude toward authority.44 To meet this need, this new breed of liberals abandoned the autonomistic premises of classical theory—its epistemology, its social contractarianism, its norms of individual consent—and substituted for them increasingly sophisticated historical and sociological studies of the emergence of liberal institutionalism, the positive goods that it brought, and the conditions necessary for its reproduction. Examples include the work of David Hume, François Guizot, Alexis de Tocqueville, the American Whigs, and later, Max Weber. Tocqueville provides a particularly vivid example of this departure. Democracy in America stands as the greatest French defense of liberalism of the nineteenth century. Yet Tocqueville’s liberalism was grounded in historical and sociological considerations rather than in “state of nature” speculations. Not “natural right,” but the facts of an advancing division of labor, high social mobility, widespread education, relative equality of conditions, and expectations of improvement, were what supported replacing institutions of the ancien régime with liberal-democratic ones. Despite this major point of difference, the second wave of liberal theorizing only strengthened the “moral” orientation of the first wave. The course of the French Revolution in particular reinforced the lesson that liberty was a child of order—of law and morality—threading its way between the whimsy of the despot and the rapine of the mob. Thus Tocqueville paired his emphasis on federalism, voluntary associations, and the “legal estate,” with an equal emphasis on religion and strict mores, in sustaining liberal democratic institutions in the United States. A liberalism fit for rule was a liberalism that cultivated self-restraint and reciprocity where social subordination had collapsed. I cite Tocqueville because, ironically, this Frenchman is the exemplar of this second wave of liberal theory best known to contemporary U.S. readers. Yet I could as easily have cited Federalists, who participated in this revision of liberal theory.45 More easily still could I have cited American Whigs, who were, after all, Tocqueville’s principal native informants, and who were the primary carriers in the United States of this new liberal outlook.46 This outlook emphasized man’s social nature, the sociology of

Introduction

29

governance, and the sociology of virtue. Call it “sociological” liberalism. And precisely because it was oriented toward the sociology of governance and of virtue, it tended to mix freely with, and receive strength from, a range of contemporary moral and intellectual traditions, including postmillennial Protestant evangelicalism, classical republicanism, Scottish Common Sense philosophy, German romanticism, and common law discourse on the well-ordered society.47 Most of these traditions—and much of the liberal institutional project they supported—subsequently fed into the Victorian ethos of progress and self-control, and into what I have called “virtue progressivism.” Finally, there was a third wave of liberal theorizing—the wave kicked up by the encounter with totalitarianism. Its articulation and partial institutionalization is the topic of this book. Unlike the second wave, which was largely the work of political practitioners responding to practical problems of governance, the third wave was largely the work of academics undergoing an ideological reaction. To put it bluntly, postwar liberal theory has its roots in an ideological effort to distinguish the United States from the totalitarian regimes as much as possible. Central among the distinctions that American social scientists drew between totalitarianism and American democracy was that which associated the former with moral absolutism and the latter with moral openness, even moral relativism. To impose values is totalitarian and “theocratic”; legitimate authority, in contrast, is neutral with respect to values. It provides a neutral, fair framework within which individuals are to pursue their own notions of the good. Put another way, while classical liberalism decouples citizenship from Christian confessionalism, neutralist liberalism decouples citizenship from any substantive values. The result was an emaciated liberalism—minimalist on values issues, with more talk of rights than virtues, and focused on the important but narrow issue of economic redistribution. This atmosphere has encouraged the reprise of eighteenth-century idioms of individual autonomy, leading us to forget that there ever was a nineteenth-century interlude. Social contract theory, rational choice utilitarianism, Kantian voluntarism, and Rousseauian emancipationism have all enjoyed a revival. But they now play against a different metaphysical backdrop—that of a world shorn of transcendent assurance, where belief in an objective moral order has waned, and where, in consequence, the classical distinction between liberty and license has lost its sense. The result is that the linguistic formulae that sup-

30

Introduction

ported liberal institutionalism in the early modern period look more like a recipe for antinomianism today.48 The third wave did not spring from practical governance problems, but some followed in its wake.

A New Progressive Era? When, in 1909, Herbert Croly spoke of “the promise of American life,” he emphasized that it was not merely a promise of economic progress, but also of moral and social progress.49 The aspiration for individual and social improvement, or “uplift,” was “the deepest and most influential of American traditions.” Democracy must stand or fall on a platform of possible human perfectibility. If human nature cannot be improved by institutions, democracy is at best a more than usually safe form of political organization; and the only interesting inquiry about its future would be: How long will it continue to work? But if it is to work better as well as merely longer, it must have some leavening effect on human nature; and the sincere democrat is obliged to assume the power of the leaven. For him the practical questions are: How can the improvement best be brought about?50 This was not prudery speaking. Croly had already made the move away from moral Puritanism that would be characteristic of intellectuals after World War I. But Croly, like other progressive intellectuals before World War II, was still interested in uplift—if not an uplift in private morals, still an uplift in social ethics, to be brought about not by sermons on the end times, but by education and social reconstruction. And in the age of organization, Croly argued, this meant “putting the collective power of the group at the service of its ablest members.”51 A Progressive era commonplace, this answer had ominous overtones for an age living in the shadow of totalitarianism. Democracy as “a more than usually safe form of political organization” seemed quite enough. The postwar liberal program was one of securing a more equitable distribution of resources and opportunities, not one of ethically motivated social reconstruction or moral uplift. This was reflected in postwar Keynesianism, no less than in the theory of interest group pluralism and the Court’s interpretation of the First Amendment. Nor, despite the passage of years, has the effect of the totalitarian encounter fully run its course. Rather, the emancipationist ethic of the 1960s and the multicultural ethic of the present have added new waters to an aging riverbed. One may have values sep-

Introduction

31

arate from authority (as in a consensual or “communitarian” society), or authority separate from values (as in a neutral state). But to claim moral authority—let alone to exert the moral paternalism that intellectuals of the past assumed was their special responsibility—remains the very definition of illiberalism. This is an ethos of recent, rather than classical, vintage. Our experience with this ethos, and with its partial institutionalization, is by now extensive enough that some of its ironies begin to stand forth. And surely the central irony—an irony this work will help document—is that, while the encounter with totalitarianism has pushed American liberalism in an antistatist, libertarian direction, this has not meant the elimination of authority from American life, or even the elimination of value orientations from authority’s exercise. Rather, it has meant the accumulation of authority by those institutions that do the best job of concealing its exercise. And in recent decades, this has meant the transfer of authority to courts and corporations at the expense of families, schools, associations, government agencies, legislatures, and so forth, whose authority is more ostensibly discretionary. However one may judge these consequences, it is clear that our constitutional choice is not between authority and the absence of authority, but is a choice among different modes of authority and different jurisdictions for them. This conclusion brings me finally to the critical perspective that motivates this book. This book is neither a screed for the Right nor the Left in today’s academic and popular struggles. Those on the Right may be pleased to find in it a new candidate—one more plausible than the “affluence effect” or the “rise of the New Class”—on which to pin the blame for the postwar march away from the Protestant ethic and toward moral and cultural pluralism and “liberation.” But they will cringe at my exhuming the leftist economics of yesteryear. In contrast, those on the Left may be sympathetic to my treatment of progressive economics. But they will suspect neoconservative skulduggery behind my treatment of “liberal neutrality” on the Supreme Court. My own conviction, which will fully please few, is that our views have swung too far in a libertarian direction with respect to both political economy and culture. This is not because I believe our reality is approaching the libertarian ideal in either dimension. The utopia of the economic libertarian is a world of justice and plenitude, in which every person is an entrepreneur, reaping the whole fruit of his or her labor. It is not a world of corporate concentration, rigged stock markets, crooked accountants, undertested drugs, and environmental destruction. Yet in the age of organization, this would

32

Introduction

appear to be the world toward which economic libertarianism tends. The utopia of the cultural libertarian is a world of creativity and contentment, in which a thousand flowers bloom as every man finds and follows his authentic inner voice. It is not a world of subgroup conformism, or a world in which public culture is given over to market forces and the conflict, violence, prurience, vulgarity, ostentation, and public humiliation that “sells.” Yet given the nature of our actual selves—selves that are social rather than self-generating and that tend to sink into their baser elements unless trained and refined—this would appear to be the world toward which cultural libertarianism tends. In short, while I find the libertarian utopias appealing to contemplate, the irony is that, in the world in which we live, libertarian policies lead us in directions that are more corporatist than individualist. What contemporary liberals tend to forget, but what sociological liberals understood, is that the liberal individual is not an outgrowth of the emaciation of cultural tradition and government, but an outgrowth of certain kinds of cultural traditions (Reformed Protestantism was one) and certain kinds of government (such as liberal constitutional ones), even while it is stultified by other kinds of cultural traditions and government. This book, then, is intended to put our libertarian swing into question by shining a light on its original impetus and the subterranean influence this impetus continues to exert. To borrow a line from Michel Foucault, it hopes that “the effort to think one’s own history can free thought from what it silently thinks, and so enable it to think differently.”52 Of course, the present effort may remind some readers only of why they became libertarians in the first place. Historicization does not necessarily delegitimate its object. But I believe a fair review of the evidence makes it hard not to conclude that the U.S. reaction to the rise of totalitarianism was insufficiently discriminating, and that the new direction in which it launched the country has not lived up to expectations. Having said this, I find history far too complicated, and full of too many ironies, to conclude that the consequences of the encounter with totalitarianism have been uniformly bad and that we should try to turn back the clock. For example, while some of the economic reform proposals of the Progressive era strike me as yet holding promise, others appear clearly wrongheaded. Similarly, while I have sympathy for yesteryear’s progressive virtues of benevolence and solidarity, and its accompanying Protestant-bourgeois virtues of industry, sobriety, decency, honesty, responsibility, reciprocity, and civility, I have no nostalgia whatsoever for the legal subordination of

Introduction

33

blacks, or the criminalization of gay sex, or bans on the distribution of contraceptives—all things that the encounter with totalitarianism directly or indirectly helped delegitimate. I thus have no desire, and certainly no expectation, of simply returning to the Progressive era. However, I do believe it is time to reopen the liberal imagination to possibilities that were prematurely foreclosed by the encounter with totalitarianism, including progressive possibilities. With regard to political economy, I have already noted that several lines of progressive thought and practice showed early promise, only to be abandoned or curtailed for ideological reasons. And other evidence countering the current economic orthodoxy has accumulated in the meantime. In light of the economic miracles of Japan and South Korea, for example, it has become simply parochial to insist that the U.S. pattern of state-economy relations—let alone the even more minimal involvement of the state in the economy that most neoclassical economists would endorse—is the only recipe for robust economic growth. And because there is more than one path that leads to economic growth, values beyond efficiency may guide our political economic choices. Of course, it is unrealistic to expect a major reconfiguration of stateeconomy relations in the United States any time soon. Such reconfigurations are generally effected only in times of major systemic shock, such as a major war or depression. And, ironically, the banking reforms and welfare measures that were instituted by the New Deal in response to the Great Depression function as economic stabilizers, dampening the economic shocks that would be needed to precipitate further reform. Nevertheless, policy under existing state-economy relations could be turned in a more progressive direction. What is more, given the enormous world influence wielded by the American economics profession, it might be salutary to infuse it with more institutionally and historically sensitive approaches, so as to lower its chances of again midwifing mafia capitalism in transitional economies, or the “Asian flu” in emerging economies, because of a myopic attachment to “market fundamentalism.”53 With regard to the politics of virtue, four main arguments have been advanced against it: first, it poses unacceptable risks of oppression (the argument from politics); second, the superiority of one way of life to another cannot be rationally vindicated (the argument from moral skepticism); third, it violates the autonomy of citizens (the argument from autonomy); and fourth, in a diverse society, it produces unacceptable levels of social unrest (the argument from pluralism). The first argument is, as we might

34

Introduction

expect, the original argument and the home tone of the entire set. All are in effect rationalizations of the antitotalitarian prohibition on imposing values. And none are sound.54 This, of course, leaves many principled and pragmatic reasons for abstaining from any number of specific formative enterprises. But it leaves no general reason for abstaining from all kinds of formative politics. The best moral philosophy today suggests that a variety of virtues, moral duties, and moral prohibitions can be rationally vindicated and are legitimate candidates for public support (or public prohibition), either directly through policy or indirectly through constitutional design. Nor should it be assumed that this is an elitist enterprise (although progressives would not have been bothered by the charge). Indeed, in the United States today, it is the intellectual elites who are largely opposed to formative politics. The pressure for character education and a sanitized public culture instead comes primarily from “middle America.” Arguably, by not using public authority in this manner, by instead maintaining a policy of state neutrality, opportunities are needlessly missed for increasing the likelihood that citizens live in a decent society and enjoy genuinely good lives. In reconsidering economic progressivism and the politics of virtue, we need not think of ourselves as abandoning the liberal tradition, or even the liberal tradition in the United States. The point of this book is not to advocate any particular line with respect to economic reform or moral instauration. But it is to suggest that, with the final collapse of communism, it is time to step out from under the shadow of totalitarianism, jettison the utopias of “market fundamentalism” and “liberal neutrality,” and reclaim the general approach (if not all the details) of nineteenth- and early twentiethcentury “sociological” liberalism—the tradition of the American Whigs and progressives, and of Tocqueville and Weber—with its more realistic understanding of the moral and cultural preconditions of liberal institutionalism, and of the importance of authority, of socialization, and of limits, in sustaining it.

1 An Exceptional Beginning

Theda Skocpol begins her famous programmatic essay, “Bringing the State Back In,” by noting the short shrift that “the state” received at the hands of American social scientists in the 1950s and 1960s, especially those working within the pluralist and structural-functionalist paradigms then dominant in political science and sociology. This cohort neglected in particular the Weberian point that organs of the state enjoy a measure of “autonomy” from the surrounding society and frequently have the will and capacity to pursue policies and goals distinct from, and even at odds with, those demanded by society and its organized groups.1 Skocpol argues further that inattention to state autonomy in the 1950s and 1960s was not a historical aberration, but consonant with “proclivities present from the start in the modern social sciences.” These sciences emerged along with the industrial and democratic revolutions of Western Europe in the eighteenth and nineteenth centuries. Their founding theorists quite understandably perceived the locus of societal dynamics—and of the social good—not in outmoded, superseded monarchical and aristocratic states, but in civil society, variously understood as “the market,” “the industrial division of labor,” or “class relations.”2 There was, as Skocpol notes, plenty of evidence of state autonomy for social scientists to draw on—colonial conquest, world wars, state-building revolutions, and political authoritarianism, for example. Indeed, in light of their own national histories, continental Europeans, and especially the Germans, “insisted on the institutional reality of the state and its continuing impact on and within civil society.” However, “As long as capitalist and liberal Britain, and then capitalist and liberal America, could plausibly be seen as the unchallengeable ‘lead societies,’ the Western social sciences 37

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State-Building before the Totalitarian Encounter

could manage the feat of downplaying the explanatory centrality of states in their major theoretical paradigms.” 3 There is much to be said on behalf of this reading of Western social science history. But interestingly, precisely because the United States lacked a European-style central administrative state, American social scientists focused their attention on the state from the beginning, and their interest in the state only increased over time, up until the late 1930s. For one thing, American social scientists—especially those allied with the Progressive movement—had ceased to regard the United States as the “lead society.” So long as the issue was the progress of representative democracy, Americans justifiably placed themselves at the head of the pack. But as the issue changed to one of taming industrial capitalism, progressive Americans saw themselves as lagging behind the Europeans, who took the lead on wages and hours legislation, health and safety regulation, social insurance provisions, and other social legislation that we have come to associate with the “welfare state.” Europeans also took the lead on urban planning and the public provision of power and basic city services associated with what might be called the “development state.”4 Americans confronted the painful paradox that the central administrative states the Europeans inherited from their monarchical past were proving more responsive to, and better able to address, the dislocations of industrial society than the popular assemblies and party government on which Americans had long prided themselves. American social scientists were thus drawn to German, statecentered frameworks from the very beginning, and saw the German model as the wave of the future. Thousands of the brightest and most ambitious U.S. college graduates traveled to Germany in the final decades of the nineteenth century to pursue advanced studies in the areas of (what we would label today as) political science, economics, law, history, and sociology.5 They were by turns attracted by what they saw—clean city streets, urban planning and zoning, public transportation, beer gardens, the labor movement, labor legislation, and the generally orderliness and efficiency of German civic life—and repulsed by what they saw—the martial displays, the emperor’s agents at all political and labor meetings, and the extremes of state paternalism. (For example, they were ambivalent at best about the emperor’s social insurance system, which they recognized as an attempt at population pacification and labor union enervation.)6 The Americans were particularly impressed by German academics’ high social status and their close connection to government, both as advisers and as trainers of civil servants. Thus, not only did they bring back the state-centered thought patterns of the German Historical School; they also brought back an ambi-

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tion to institute a professional civil service on the German model, and a network of graduate schools to train young men for this service.7 Their aspirations to revolutionize American higher education were ultimately more successful than their aspirations to revolutionize American government, and their graduates were more likely to find positions as university teachers, journalists, and social workers than as government servants. But “they kept alive the idea of a professional government service as part of the broader campaign for a trained leadership class.”8 Indeed, as we shall see, the passage of time only increased the interest of U.S. social scientists in the autonomy of the state, as they gave up trying to achieving social reform through direct education of the voting public and looked instead to possibilities for “social control” through expert guidance of public affairs. In light of this history, Skocpol’s observation on the dearth of statecentered approaches in American social science of the 1950s and 1960s raises an important historical question. Narrowly construed, why was the state’s capacity for autonomous action expunged from postwar social scientific treatments of American democracy? But this question quickly opens onto a much broader and more important issue. The prominence of the state in American social science before World War II did not reflect mere academic curiosity. Rather, it reflected the broad participation of American social scientists in the progressive crusade to build a new American state. Indeed, it was they who spearheaded the crusade—theorizing the inadequacy of the United States’ reigning governance system, analyzing the European alternatives, and formulating reform programs that would adapt the best of European governance structures to American conditions. To ask why the state dropped out of American social science therefore is really to ask, what happened to the progressive crusade to build a new American state and reconstruct state-society relations? The answer is not that the aspirations of American progressives were met by the New Deal, for they were not. Rather, the answer lies in changes to those aspirations themselves— changes precipitated in large part by the encounter with totalitarianism. Understanding the impact of the encounter with totalitarianism on American liberalism means, at the very least, understanding its impact on the American state—on its structure, on its agenda, and on attitudes about it. The Great Depression opened an unprecedented opportunity for U.S. state building and for the reconstruction of the nation’s state-society relations, and American progressives looked set to seize it. But as fate would have it, the encounter with totalitarianism occurred at precisely this moment, deflecting significant lines of American progressivism and changing the nature of the state that crystallized. The remainder of this chapter and

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State-Building before the Totalitarian Encounter

Chapter 2 set the stage for this encounter. They describe the nation’s early evasion of European-style state-building, the subsequent motives toward state-building, the participation of American social scientists in the statebuilding campaign, and the gathering momentum, and broadening agenda, of this campaign, on into the Great Depression. This will put us in a better position to see what was lost in the totalitarian encounter, and with what consequences.

State-Building in Comparative Perspective From the start, the building of the European state was, in part, a moral project, consciously theorized and cultivated. In other words, its history is not reducible to the “natural,” amoral dynamics of social differentiation (the state as a coordination mechanism that emerges from increasing division of labor), of international competition (the state as a means of marshalling military and financial resources), or of economic hegemony (the state as a tool with which the capitalist class consolidates its position).9 Although all these have played important parts in shaping the “state project,” there exist numerous historical counterexamples, especially in the non-Western world, where such conditions existed yet no nation-state or bureaucratic state structures emerged.10 The missing fact is that the European state system did not emerge out of an anarchic “state of nature,” but out of medieval Christendom. The European states were shaped not only by competition among themselves but also by competition with the Roman Catholic Church. In the eleventh century, Pope Gregory VII launched the papal revolution (or Gregorian Reform), in which Gregory declared it the mission of the Church to build the Kingdom of God on earth, and toward this end, declared himself, as successor to the apostles of Christ, supreme over all emperors, kings, and princes, in all matters, sacred or civil. With this, a long-standing rivalry between popes and emperors and popes and kings broke into open conflict, in which each side competed for the moral allegiance of other notables and of the general populace. The upshot, for our purposes, is that the kings, forced to compete on the level of ideals, incorporated many of the Church’s ideals into the premises of their own rule. In particular, the Roman Catholic Church, as the world’s first “welfare state,” passed along to all future European states the notion that rule is for the sake of the “people’s welfare”— material, moral, and even spiritual (with kings as “defenders of the faith”).11 As Leonard Krieger puts it, “It is no accident that in the large

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[historical] literature about the state the one point that gets repeated over and over again is the definition of the state’s aim as salus populi . . . that is, as the general welfare. Every state, then, is a welfare state; every political act and refusal to act is justified by the general welfare.”12 Of course, the moral impulse within the state project has often been observed only in the breach, and at other times has been twisted grotesquely, with Nazism and communism as the most dramatic examples. Indeed, it was precisely in reaction to this totalitarian perversion that American intellectuals stripped the state of its moral tenor, at least in theory, arguing that liberal states ought to be, and generally have been, neutral. But this interpretation has left us unable to understand our own history, or indeed, to understand contemporary political dynamics. It is not discounting the abuse that can travel under the name of the “public good,” to say that the history of the state in the West cannot be understood without some attention to the moral purposes that have served as both inspiration to statebuilding and legitimation of it. Yet the instrumentalities with which the state project has been pursued have not everywhere been the same. It is here that we must start distinguishing between “the state” as a territorially bounded, rationally organized moral-political community (as in the “nation-state”) and “the state” as a bureaucratic organizational form (the administrative structures of the national government). For clarity, I will refer to the development of the first as “nation-building,” and of the second as “state-building.” Yet it should be born in mind that nation-building is also part, and really the more indispensable part, of what I am calling the “state project,” the aspiration to fashion a secure, prosperous, legally unified, territorially bounded moralpolitical community. In Europe, kings confronted an ancient corporate society—of feudal lords, ecclesiastical institutions, guilds, and communes—that stood between themselves and control over their territory and its direction. Nation-building was therefore accompanied by state-building, whereby kings developed a central administrative apparatus and a corps of officials that gradually subjected the periphery to national developmental goals. This process was initiated by the papal revolution, which, among other things, pushed kings to develop integrated bodies of royal law—and the courts and officials necessary to administer it—parallel to the Church’s canon law and ecclesiastical courts.13 And it was thickened by the rationalizing pressures of nearly constant military conflict and a developing market economy. The result was the centrally administered monarchical governments of continental Europe.

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State-Building before the Totalitarian Encounter

The American Point of Departure In the case of the United States, from the earliest days, altered circumstances sent it down a distinct path of political development. There was nation-building, but there was little in the way of an administrative state propelling it, and for long, there was little need for one. First, because land was readily available in the North American colonies, it proved impossible to reproduce the European feudal order, even when, as in the South, there were those who wished to try. The “serfs” kept moving West to become petit bourgeois.14 And since “feudalism was not transplanted to the New World, there was no need for the strong arm of a central power to destroy it.”15 White, male Americans were, in Tocqueville’s phrase, “born equal,” meaning they inherited a tradition of local liberty, with equality before the law and with governance by local elected assemblies rather than by the local lord. They did not need a liberal state to make their country liberal, as did the French. Indeed, they did not need a revolution at all, but a War of Independence (the original and proper term for the events of 1776–1781) to make sure this liberal democratic birthright was not lost to a venal British parliament and crown. Second, because Americans did not need to destroy an old order, or to impose a new one, they did not feel the need to invest any individual or collective body with sovereignty to undertake the task. Sovereignty would be left with God, or would be invested in the people as a whole, not with the central government. This deprived the central government of a source of legitimacy as an independent moral actor that the European state enjoyed. Third, because the Atlantic Ocean, like a giant moat, largely protected the United States from the grinding land wars of Europe, the country’s decentralized governance structure was long spared warfare’s centralizing pressures. Fourth, because Southern planters had no landless peasantry to exploit, they brought in slaves. The slave system allowed the South to develop a simulacrum of the European feudal order, and it is telling that the one flurry of state-building activity in the nineteenth century—during the Civil War and Reconstruction—was driven by the effort, only partially successful, to dismantle this Southern feudalism. But the South’s more constant influence as part of the Union has been to greatly impede state-building as part of its general hostility to central government authority. Time and again— whether the issue was Henry Clay’s “American System,” Roosevelt’s New

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Deal, or Johnson’s War on Poverty—the “Southern bourbons” used their weight in Congress to stymie or subvert any federal instrumentality that might be used to undermine the South’s exploitation of black labor. Last but not least, as nowhere in Europe, the political ideas of Reformed Protestantism, as carried by the Puritans, were allowed free reign. They were fully institutionalized in New England, and in revised form, conquered the nation. They were the cultural complement to the many structural factors militating against a strong central administrative state in the United States. New England Protestants strongly pushed the nation-building component of the state project—the push toward collective moral and material improvement. Their aspiration to build a New Israel was, after all, a variant of the same aspiration to build the Kingdom of God that, in the form of the papal revolution, launched the state project in the first place. Throughout the first century and a half of the country’s history, New England was a stronghold of Protestant cultural and economic nationalism. The Puritan legacy was more mixed with regard to the state-building component of the state project, however. Unlike Gregory VII, the Puritans did not see a central administrative institution such as the Vatican as the wellspring of collective reformation. Rather, they saw this potency distributed among the “elect”—those predestined by God’s grace for salvation. American democracy was a product of the gradual expansion of this category of the “morally qualified” elect.16 So too, the carpet of voluntary associations and improvement societies that so impressed Tocqueville, and that served as American instruments of nation-building, had its roots in this sense of distributed moral potency. This decentralization of moral potency left central authority in a morally ambiguous position. On the one hand, because of original sin, the people could not be fully trusted, but must be disciplined by authority. This was the Christian justification for rulership going all the way back to Augustine. On the other hand, again because of original sin, the authorities themselves could not be fully trusted.17 They had no privileged access to the sacred and no special moral potency. The Puritans addressed this dilemma with devices that would become hallmarks of American governance. They granted their governments considerable authority, including authority over the moral tenor of colony life, but only after they had constituted them so as to minimize its abuse. First, they separated what they understood to be the two main branches of power, the ecclesiastical and the civil. Ministers were barred from holding

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State-Building before the Totalitarian Encounter

civil office, and it was further stipulated that revocation of church membership would not disqualify a civil ruler from office, as excommunication had formally disqualified a civil ruler in Catholic Europe. Second, ministers and magistrates were to be elected, directly or indirectly, by the people over whom they exercised authority, and were ultimately accountable to them. Third, the basic laws of each community, which were understood to be at bottom God’s laws, were formally subscribed to in the form of signed “social covenants,” or constitutions. These laws included not only restraints on the citizens, but restraints on the authorities, in what became the world’s first bills of rights. Finally, while a General Court maintained legal unity in the colony, affairs of the colonies were predominantly governed by localism, with the voluntaristic congregation as the central theological and social unit. The seat of the sacred, the font of normativeness, was in the periphery, not in the political center, and governance was distributed accordingly.18 Separation of powers, electoral accountability, constitutionalism, bills of rights, and decentralized governance—by the time the Constitutional Convention was called, these restraints on executive discretion already had a 150-year history in certain of the American colonies.

Founding a Nation, Not a State The War of Independence only augmented this basic Reformed Protestant suspicion of central authority. The war was not sparked by the mere fact of British rule. It was sparked by the advent of a new mode of British rule— the “absolute Despotism” of rule by a centralizing administrative state, with its standing armies, its “swarms of officials,” its centralized tax administration, its suppression of local legislation, adjudication, and other prerogatives, and its monopolization of trading rights.19 The United States, in other words, was born in revolt against what European statesmen viewed as progress: governance by a sovereign central administrative state.20 In crafting an alternative, the colonies naturally turned first to the radical republicanism that had provided much of the vocabulary of colonial opposition to British statism. The Articles of Confederation left the thirteen individual colonies as virtual sovereign states and placed the residue of national authority entirely in Congress. There was no national executive. Executive authority was almost as palsied within the individual colonies, which, desirous of keeping the government as close to the people as possible, adopted legislative sovereignty, with frequent elections, term limits, and so forth to prevent the consolidation of power. But

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volatility and problems of ungovernability plagued life under the Articles of Confederation. The problem that confronted the participants in the secretive Constitutional Convention of 1787 was how to form a more perfect, more orderly union, while remaining true to the war’s rejection of European-style statism. Part of the answer was to upgrade executive authority. Alexander Hamilton, who despite his youth was the most cosmopolitan of all the founders (which is to say, the most European in outlook), was even prepared to revert to the British model. However, the Constitution that emerged—“extorted from the grinding necessity of a reluctant nation,” as John Quincy Adams put it—remained faithful to the pattern of governance inherited from the Puritan colonies.21 The national government would be strengthened. Its jurisdiction was extended, especially in the areas of taxation and national defense, and the powers of the pre-1787 Congress were separated into a bicameral legislature, an executive, and a judiciary. (Contrary to popular impression, institutional separation was also, in itself, an act of strengthening, designed to make the national government more efficient through functional specialization.)22 However, the old distrust of central authority remained, and was given form by adding “checks and balances” among these branches.23 Also, as in the Puritan colonies, the heads of each branch were given their position, directly or indirectly, by the very people over whom they exercised authority. Next, the basic laws of the country continued to be written down in a formal social contract, the Constitution, to which a Bill of Rights was added as a condition of ratification. Finally, localism would continue to be given its due, in that rule would be shared between the federal government and the individual states (and between the states and the local governments), with most of it, including all regulations on conduct, staying with the latter. This was perhaps the most ticklish point, for it was precisely the jealousy that the states had for their sovereignty that had doomed the Articles of Confederation. The great bargain that James Madison struck between the fear of executive tyranny and the hope for national unity was to secure the latter not through the medium of administration, but through the medium of law, the uniformity of which would be maintained not by a sovereign legislature, but by the Supreme Court. This was the basis for that combination of legal centralization and administrative decentralization so admired by Tocqueville. It was—without derogating from its intellectual brilliance—a true Rube Goldberg contraption of a constitutional system. As Stephen Skowronek

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has put it, “[w]hile Europe was moving toward simplicity in state design, America, in effect, established ‘the most complicated government on the face of the globe.’”24 This baroque complexity made the U.S. Constitution strangely premodern, exuding the musty aroma of Puritan medievalism. But on the level of constitutional metaphysics, there was one fundamental difference between it and the social covenants of the Puritan colonies: the U.S. Constitution substituted the sovereignty of “the People” for the sovereignty of God as the source of fundamental law. This made it stunningly modern. Yet this move only intensified the original Puritan ambiguity on the issue of authority. In withdrawing the source of normativeness and authority from any particular governmental institution and lodging it in a “people” outside all institutions, the Constitution gave new strength to the executive and judiciary relative to the legislature. All three could now claim to represent the people. But at the same time, lodging sovereignty in a preinstitutional people reinforced the radical notion of the artificiality and consent-based conditionality of all authority and law. Stronger central authority, and the seeds of a more radical antiauthoritarianism, were both sown by the Constitution.25 The chief political battles of the early Republic were fought over just how long would be the reach of this new national government—especially its executive branch. The constitutional framework was malleable enough, or at least untried enough, for Hamilton to pursue a program premised on federal strength. Hamilton from the beginning saw the United States becoming a great commercial republic, and, as George Washington’s Secretary of the Treasury, he enlisted the executive in the cause of commercial and industrial development, with a program including a protective tariff, a national bank, internal improvements to infrastructure, a system of internal taxation, and military preparedness. In contrast, Thomas Jefferson, the great agrarian and Virginia planter, saw in finance and armies the chief sources of the corruption and subversion of republican government, just as he saw in the independent farmer the chief source of republican virtue. In his own way, Jefferson believed in federal promotion of national development. The federal acquisition of new land—of which the Louisiana Purchase was the master stroke—was a policy designed to preserve and extend the virtuous agrarian republic. But beyond this, Jefferson argued for a “strict construction” of the Constitution so as to limit federal prerogatives, and he and Madison organized the Democratic-Republican party so as to win the presidency and dismantle federal power.26 Jefferson, at least in intent, was a nation builder, not a state builder.

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The irregular performance of the United States in the War of 1812 produced, for a spell, a broad consensus among elites on the need for a stronger national state and for federal promotion of national development. In the war’s wake, Madison embraced the Hamiltonian program of national bank, tariff, and internal improvements. It was called “National Republicanism,” which seemed to make it easier to swallow. As Garry Wills writes: Jefferson had opposed the Bank of the United States, public debt, a navy, a standing army, American manufacturing, federally funded improvement of the interior, the role of a world power, military glory, an extensive foreign ministry, loose construction of the Constitution, and, subordination of the states to the federal government. All those things were firmly back in place in the aftermath of the war.27 James Monroe, who had been an Antifederalist and voted against ratification of the Constitution, nevertheless continued Madison’s Hamiltonian swerve, and ran unopposed for his second term in the original “era of good feeling.” John Quincy Adams, a pervasive influence in the Monroe administration, wanted nothing more than to continue its “national Republican” policies in his own administration, to the point of trying to retain Monroe’s entire cabinet. However, his schooling in the Scottish Enlightenment’s vision of progress, coupled with his evangelical belief in the providential advance of civilization, gave him a more aggressive notion of national improvement. His First Message to Congress (1825) declared it the responsibility of the federal government to promote science, learning, and the material and moral improvement of mankind, and it laid out an ambitious federal agenda, adding to the usual list of bank, tariff, and transportation such things as geographic exploration, a national observatory, and a national university. It was a “sacred duty,” imposed by God, for Congress to enact this program, carrying the United States a step closer to the millennial age.28 Had Adams been able to carry his program in the legislature—or had Henry Clay, advocate of the similar American System, picked up a few thousand more votes in 1844, or had William Henry Harrison, who enjoyed a large congressional majority, not died shortly after taking office, to be succeeded by the turncoat John Tyler—the course of national development, national planning and administration, and state-society relations might have been very different.29 But the circumstances of Adams’s election, the “corrupt bargain” that was alleged to have been struck between him and Clay, his supposed “European manners” and “foreign” wife, and his de-

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scent from an Old Federalist, made Adams the perfect target for an Andrew Jackson-primed populist backlash against the Yankee aristocrat and his dangerous program of federal aggrandizement (dangerous, it was hinted, to the Southern slave system in particular).30

The Rise of Party Government The ascent of Jacksonian principles scotched the National Republican consensus, and narrow but recurrent Jacksonian victories at the polls meant the end to all major federal initiatives for national development. In the name of republican purity, the Jacksonians denounced by turns the national bank, the state banks, chartered corporations, professional organizations, and even institutions of education and learning. What for their political rivals, the American Whigs, were the very instruments of material and moral progress, Jacksonian Democrats decried as “aristocratic” encroachments on the democratic principle of equal rights and opportunities.31 It was the principle of popular sovereignty coming home to roost. But the more enduring blow to executive power came not from the triumph of Jacksonian principles, but from the triumph of Jacksonian party practices. Whereas previous parties worked to attain the support of local notables, relying on the respectability of their names to influence their lowlier neighbors, Jackson’s campaign managers employed a new breed of party organizations that went directly to the electorate. Bypassing the notables, these organizations instead cultivated cadres of talented but socially undistinguished men skilled in the arts of propaganda, organization, and vote collecting. In their pure form, these were professional partisans, loyal through all vicissitudes of party platform. Their energetic efforts on behalf of the party were secured not through common ideological commitment, but through patronage jobs in government administration (or through the assessments and kickbacks therefrom), and their hold on voters maintained through the electorally efficient distribution of legislative pork. As the Whigs bitterly complained, this meant the appointment of men to administrative posts whose chief qualification was “party service rendered” and whose chief commitment was to the party rather than the public good.32 The federal “spoils system” had been born. From the point of view of administrative development, populating government offices with party hacks had the deleterious effect of lowering administrative efficiency and creativity, not to mention flinging open the doors to corruption. But even more damaging to the prospects of national

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administrative development was the localism that the patronage party structure forced on the national political system. In an age without national media, vote collecting was a local affair. Party machines were thus locally based and oriented. On this new political landscape, running a successful national campaign meant assembling a winning coalition of such machines. And with each locale differently disposed and moved by different issues, it militated against mobilization behind comprehensive national programs. Instead, each local organization electioneered as it saw fit, the aggregate of which was a crazy quilt of local issues, ideological appeals, and promises of benefits. From the point of view of a patronage party, therefore, the sum of presidential leadership was to coin a few glowing phrases and then leave Congress free to bring the bacon back to the home front, with no particular attention to a national program. Any effort to campaign on a unified national program threatened either to rip apart the quilt at the seams, or at the least to place the machines in some regions at a competitive disadvantage (to the great distress of their operators, who literally fed on victory). Furthermore, any effort to strengthen the executive’s capacity to administer some such national program—by taking patronage offices away from loyal party men and giving them to men of expertise, industry, and policy commitment—was, from the point of view of the party organization, like intentionally clogging one’s fuel line. It threatened the very lifeblood of the party organization. Since the Democrats favored localism over centralization, the localism of the party system suited them just fine. But for Whigs, it was a great frustration. The price of being a party of principle and program in this localist political landscape was that Clay, the master of the artful compromise, found his skills taxed to their limit, producing in his American System a program of complicated regional counterbalances that needed endless explication. Patronage parties proved themselves poor vehicles for putting over national development programs.33 Europeans got central states before they got democracy. Europe thus entered the nineteenth century with well-established central states that could take for granted the national reach of their administrative and regulatory powers. Only subsequently did political parties arise to restrain and reorient these powers. Americans got democracy before they got a central state. The United States entered the nineteenth century with little more than the idea of a central state, and immediately bred political parties that assailed this idea and substituted for it an antithetic republican ideal as well as a new politics that was inherently decentralizing and hostile to national

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administrative power. This did not, technically speaking, mean that nineteenth-century America was “stateless,” for certain key functions were performed, such as the monopolization of legitimate violence, the preservation of territorial integrity, and the establishment of uniform rules for the circulation of goods. Rather, it meant that the United States became, in Skowronek’s apt phrase, “a state of courts and parties,” with political parties coordinating diverse locales into something of a national organization, and the common law courts stepping in to fill the policy and administrative holes left by pork-barrel congressional governance. The distinction is important, for when reformers of the late nineteenth century sought to build in the United States a state of European capabilities, they did not start with an empty field, but had a live and kicking state system to displace.34

Industrialism and the Dysfunction of Nineteenth-Century Governance The inability of this decentralized governance system to cope with the stresses and strains of an interconnected industrial economy set the stage for progressive reform efforts.35 For decades, the dearth of central state power in the United States had been, for most Americans, a source of pride; for Europeans, a source of amazement; and for men such as Tocqueville, an inspiration to the future. The rise of industrial capitalism began to reverse this judgment. Hamilton and the Whigs had supposed that federal boosterism was the key to rapid civilizational development, including industrial development.36 Yet if a central administrative state proved inessential to industrial development, it began to show distinct advantages in softening the social disruptions that accompanied this development. Nor did the old boosterism disappear. The new economic landscape suggested new ways to use central administration to push the private economy to yet higher levels of performance. The railroads are the most salient example of a new industry that demanded new kinds of governmental response. General laws of incorporation, combined with a speculative frenzy, produced in the United States a rapid buildup of an uncoordinated system of rail lines. The dramatic doubling of rail mileage between 1870 and 1876 produced overcapacity and ruinous rate-cutting wars on long-distance trunk lines, and at the same time transportation monopolies on local branch and feeder lines. This state of affairs made a mockery of received economic pieties and reigning governance structures, on any number of counts. Competition, for exam-

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ple, was supposed to lower prices. But because shipping costs per unit of freight decreased with the expansion of the rail line—because, in other words, the industry exhibited “increasing returns to scale”—the natural tendency of the industry was toward monopoly. Ironically, then, competition bred the disappearance of competition, resulting in “the restoration of monopoly in a more terrible form,” as Marx had put it.37 The railroad was a “natural monopoly.” Railroad consolidation was thus efficient, producing savings that could in theory be passed on to the user in the form of lower prices; however, without rate regulation, consolidation instead led to monopoly prices. One would expect such an industry to be financially healthy. In practice, the railroads were starved and struggling. As Skowronek notes: Experience had shown that a line pushed into bankruptcy [by competition] could disrupt the entire industry. Bankrupt railroads represented a massive investment in fixed capital that could not be converted to alternative uses but could still be operated in receivership. A road in receivership, without stock obligations and exonerated from interest payments, was said to “run wild” over solvent roads with rates that had to meet only the basic costs of operation.38 Cutthroat competition thus threatened to bring down not just one line, but the whole industry, to the detriment not only of the railroads, but of the shippers and the public. In this way, too, the old nostrums about competition were turned on their head. The railroad entrepreneur suddenly found himself with an interest in keeping his rivals solvent! Thus was born a new motive to business cooperation that was not simply a conspiracy to squeeze the public (although, if given free rein, it might easily turn into this). Railroads could defuse the dangers of mutually assured destruction either through cooperative rate-fixing or traffic-sharing. Yet rate-fixing and pooling invariably broke down due to the strong incentives for defection, if not first struck down by a growing body of antitrust laws. In light of these failures, the railroads, in a true first, begged for national regulation, to enforce their pooling agreements and to protect them from market temptations. But the courts and parties—geared toward other instrumentalities, and swayed by other interests—were unwilling, or flatly unable, to comply.39 As a final wrinkle, individual rail companies, in an effort to remain solvent, engaged in discriminatory pricing. Long haulers were favored over

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short haulers; big shippers—such as Rockefeller oil concerns—enjoyed discounts and rebates, to the consternation of small shippers; and communities on the monopolistic branch lines were charged high rates to make up for the low rates paid by those on the highly competitive main lines. These practices were quite understandable in the circumstances, but the local orientation of the party system meant that the disadvantages suffered by the numerous small shippers, local haulers, and small towns generated enormous political pressure against these practices. The crazy condition of the railroad industry can be summarized as follows: Railroads enjoyed efficiencies of scale that set them on a natural course of growth and consolidation, tending toward monopoly. The state of courts and parties responded in a way that was entirely in keeping with American ideology and the existing regulatory apparatus: it enforced competition. It blocked consolidation, banned cooperative pooling and pricefixing, and banned discriminatory pricing. This also happened to be an entirely irrational response, and the keenest observers of the day recognized this. First, for the sake of preserving competition, it gave up efficiencies of scale. Second, in banning freight pooling and price-fixing, it banned the practices with the best chance of staving off the periodic industry collapses that competition triggered. Third, the localism of the existing regulatory regime introduced geographic irrationalities on top of these substantive policy irrationalities; that is to say, because economic regulation was, in nineteenth-century America, a prerogative of the states, while the rail lines were often regional or transcontinental, the railroads had to operate across a fragmented, inconsistent regulatory landscape. Finally, the nineteenth-century agents of regulation—the common law courts and state legislatures—were ill-equipped to gather or assess the railroad statistics that would be necessary to make an informed judgment of the fairness of contested price structures and price levels. The regulators were basically flying blind, which made them all the more susceptible to the irrationalities of received pieties and constituent pressures. It was the tangled problem of the railroads that gave impetus to “the progressive theory of regulation,” as its promoters called it. As formulated by Henry Carter Adams, a talented German-trained economist and selfstyled “economic mugwump,” the theory advocated that government embrace the monopolistic character of the railroads and allow them to consolidate to reap the efficiencies of scale. Then the government should subject the railroads to the rule of “public financiering.” This would re-

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quire developing a national bureau of railroad statistics (to check the veracity of industry data) along with the administrative capacity to determine the public value of corporate properties. Then—and only then—the government would have at its disposal the information necessary to set rates so as to secure the lowest price consistent with quality rail service. With respect to governance structures, the aspiration was to create within the executive branch of the national government a railroad bureau, run by experts, with the authority to set national railroad policy. It would be a neo-Hamiltonian partnership of business and national government, under the guiding hand of disinterested experts. This aspiration was partially met with the formation of the Interstate Commerce Commission, to which Adams was appointed chief statistician. It was not fully met, however, because the controlling legislation—the Interstate Commerce Act of 1887— was dominated by antimonopoly ideas rather than progressive ones, and the commission had difficulty achieving both independence and authority.40 Some of the problems raised by the railroads stemmed from their special status as a means of transportation. Nevertheless, the railroads were taken as the paradigmatic modern industry and provided a parable of what governance of the industrial economy would require. It was in the rail yards and economic seminars of the 1880s that one finds the roots of the progressive ideal of business cooperation under the supervision of politically insulated experts in the executive. A conservative version of the cooperative ideal would echo down through Herbert Hoover’s “associationalism” and the Swope plan for ending the Great Depression. A stronger version would be found in the “New Nationalism” of Theodore Roosevelt and Herbert Croly, and a stronger version still in Franklin D. Roosevelt’s NRA. The problem of the railroads—generically, the problem of industrial consolidation, or monopoly—was just one of many new problems raised by late nineteenth century industrialization. Another set of problems centered around the labor contract. The growth of large industrial enterprises and the multiplication of propertyless workers (especially through immigration) created a bloody conflict between laborers and capitalists. At its root was the unequal bargaining power that relegated workers to long hours and low pay in hazardous working conditions. This produced calls to restore the balance—for example, through recognition of collective bargaining rights for labor unions, or through use of arbitration boards

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backed by a Bureau of Labor Statistics. And it produced proposals to narrow the allowable terms of the labor contract, with laws setting maximum hours, minimum wages, and minimum age, health and safety standards (socalled factory legislation). Other problems stemmed from the vicissitudes of industrial employment, sparking interest in a range of public “compensatory” programs: social insurance for unemployment, accidents, and old age; subsidized mutual assistance societies; and expanded poor relief. Still other problems centered on the living conditions created by market forces in an industrial age. This led to proposals for removing certain decisions and services from the market: the overbuilt urban environment, it was argued, could be tamed with urban planning and zoning; made more livable with public parks, playgrounds, libraries, baths, subsidized housing, and sanitation; and better served by subjecting the monopolistic urban utilities (water, sewer, gas) to municipal ownership or commission regulation. Similar reasoning regarding the landscape outside the cities generated a conservation movement, oriented toward such things as national parks and natural resource planning. Beyond this, growing income disparities produced interest in redistributive taxation. Corporate misconduct generated interest in a stringent national law of business incorporation (in place of the laxer state laws), a maximum corporate profits tax, and worker representation on corporate boards. The list goes on. One can only be impressed by the meliorist imagination of the progressive reformers—especially in Europe, where most of these ideas originated.41 And even as the debates swirled over how to constrain and compensate for the workings of the industrial economy, other debates swirled over how to fuel it further, whether through protective tariffs, bureaus of economic statistics, credit and interest rate manipulation, and various subsidies and legal privileges. Some of these problems, like the railroads, were national in scope and demanded national remedies. Many others had their focus in the cities and demanded municipal or state-level remedies. But the remedying of almost all these problems was impeded by the patronage parties that dominated both local and national government, as well as by courts that threw up constitutional obstacles to many reform approaches. Caught in these straights, reformers looked enviously at the governmental institutions that Europeans were able to bring to bear upon their analogous problems. Europeans built their states to tame an ancient corporate society; Americans would increasingly hope to do the same to tame their modern corporate society. At the same time that Europeans began to erect political parties

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to control their states, reformers in the United States began to push for a European-style state, in the teeth of their hostile political parties. American social scientists were in the vanguard of this push. They analyzed the failures of American governance in the industrial age. They surveyed the European alternatives. They formulated concrete programs for social and administrative reconstruction, worked to bring these programs to fruition, and were prepared to assume command of the new governance institutions they would bring into being.42 They expressed in its purest form the state project as a moral project.

2 Social Science, Progressivism, and the State

In tracing the genealogy of the American social sciences, much attention has been given to The American Social Science Association (ASSA), founded 1865 and mother to all the more specialized social science organizations. But if the ASSA helped organize the American social sciences in their infancy, it did not raise them to adulthood. The founders of the ASSA drew their inspiration from Britain. Indeed, the ASSA was modeled on the British Social Science Association, an organization that worked to improve the lot of the working class, but in a way that compensated for, rather than challenged, the reigning market order. John Stuart Mill was for long an ASSA hero, and the association, comprising Whiggish university professors, lawyers, and gentry reformers (or mugwumps), leaned even more toward the free market outlook of British political economy than did Mill himself.1 Following the course of reform in Britain, its signature issue was civil service reform, which it saw as a device for ending the irrational reign of localism, log-rolling, and bossism. Deprive the party bosses of their control over offices and you deprive them of the bulk of their campaign workers and contributors, thus opening the field for politicians of principle and (promarket) program.2 In contrast, a new cohort of social scientists, who began their careers in the late 1870s and 1880s after receiving advanced training in Germany, began to focus on the potential of the administrative state itself. They backed all efforts to break the patronage parties and establish a professional civil service, and broadly supported the idea of leadership democracy. But they became dissatisfied both with the limited institutional vision of the ASSA and with its reform style. One by one, like swarms off the hive, the young social scientists departed the ASSA to form new, more specialized and professional associations, until the hive was completely emptied. These departures from the ASSA did not represent a turn away from reform. Far from it. Rather, they represented a shift in reform strategy, from 56

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missionary to professional, from generalist to specialist, from patricianamateur to expert, from civil society to state. It would be incorrect to attribute this shift in approach to the advance of secularism, when in fact many in the first generation of professionalizing social scientists saw their academic work as an extension of their religious commitments. It would also be misleading to see it as a shift from a moralistic to a scientific approach (or, worse, a shift from advocacy to objectivity).3 If one wished to sum up the etiology of this shift in a single phrase, it would be that there was a migration of the source of inspiration, from Britain to Germany.4 It is no accident, for example, that two of the first professional academic associations—the Historical and Political Science Association (1877) and the American Economic Association (AEA; 1885)—both took as their model a German organization—the famous Verein für Sozialpolitik.5 The reorientation toward Germany produced both a change in social scientific vision (from Mill and Herbert Spencer to Adolph Wagner, Gustav Schmoller, Wilhelm Roscher, and Johann Bluntschli), and a change in reform strategy, from the Anglo-American model of public guidance by cultivated social elites (or moral uplift through the camp revival), to the German model of an alliance between university and state.

Political Science Political science, along with history, its fraternal twin, was the most “conservative” of the new disciplines, with the closest ties to Eastern Whig political culture and the mugwumps. It was the most attached to the racialist Teutonic theory of political liberty, the most averse to restrictions on the rights of private property, and the most dismissive of women’s suffrage. But it was, in its own way, very much a reforming discipline, with the state at the center of its vision. It shared with its more radical siblings an antipathy to congressional government and to patronage politics, as well as a desire to elevate the national state over the individual states, increase its administrative efficiency, and establish working relations between it and the universities. The guiding spirit of political science was that of the German émigré Francis Lieber, the court political theorist of, first, the American Whig Party, and then of the Republican Party, who defended, in learned systematic treatises, a strong, though limited, national state, led by an aristocracy of merit. As part of this vision, he advocated the founding of a national university that, like Baron von Humboldt’s University of Berlin, would train a civil and governmental elite, carriers of national liberal values. While

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this idea never bore fruit, Lieber did lay the groundwork for the influential graduate program in history and political science at Columbia. From his earliest American writings to his last, Lieber doggedly applied European political categories to the U.S. political landscape, with “the state” as his central category. His Manual of Political Ethics (1838–1839) “was the first study of the state in America and the first study of America as a state.” It should be noted that in Lieber’s usage, the state was not to be conflated with the existing institutional apparatus of government. He spoke in idealist, quasi-Aristotelian terms about the state being prior to government—indeed, about it being “aboriginal with man” because it was “essential to the full development of his faculties.” It was the sovereignty behind government and provided government with its norm. Under Lieber’s influence, German Staatslehre, or “state theory,” became the core of the discipline. This was all the more surprising since the concept of “the state” had little presence in American political discourse at the time. The focus on the state, rather than on the more familiar and tangible subject of “politics,” bespoke the sway of German thought over the discipline, as well as the contempt with which American professionals contemplated the spectacle of party politics.6 As John G. Gunnell notes, “[f]or a period of nearly three decades . . . Lieber’s work was the principal matrix for conversation about political inquiry.”7 The two towering figures of the first generation of American political scientists—Herbert Adams of Johns Hopkins and John Burgess of Columbia, both of whom studied in Germany and admired the close relationship between the German universities and the German civil service— hammered Lieber’s state-centric approach into the discipline, to the point where Frank Goodnow, the first president of the American Political Science Association (1903), could speak for all assembled when he declared in his presidential address that the business of political science was to study the state and concern itself with the “various operations necessary to the realization of the State will.”8 Both the methodological idealism and the political conservatism that Adams and Burgess brought to the discipline would fade, but the focus on the state would perdure. When Woodrow Wilson announced his break with the idealism of the German Historical School in favor of a concrete treatment of government institutions, it was a comparative history of the state—of authorized organized force—that he offered as an example of his approach. His signature conceptual innovation was a distinction between administration and politics, which he used to advocate building the administrative capacities of the state.9 This dis-

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tinction became an item of faith among Progressive reformers, especially urban reformers. Administration, according to the theory, was a nonpartisan, maximally efficient means to deal with the purely technical problems of running city services. In practice, the theory was a weapon in a political effort to wrest as much of the city as possible from the hands of the corrupt urban political machines and place it in the care of the reformers themselves. Urban reformers now swelled the ranks of the discipline, taking it in a much more progressive, activist direction and working to develop the autonomous administrative capacities of government.

Economics The story of American economics closely parallels that of political science. The hegemony enjoyed today by neoclassical economics, with its construct of the self-propelling, self-regulating market, should not let us forget its long and losing struggle for converts against more statist rivals in the years prior to World War II. Indeed, of social scientists, the professionalizing economists of the late nineteenth century were actually the most politically and economically radical, the most sympathetic to Christian socialism and democratic socialism. Frequently of New England Protestant evangelical backgrounds, though sometimes of Midwestern, dissenting Protestant background, they carried the millennial overtones of late nineteenthcentury religious revivalism into the social sciences, and often joined in loose alliance with the Social Gospel on practical reform issues. But despite their radicalism, or because of it, their work pushed in the same direction as that of the political scientists: toward an augmentation of the administrative capacities of the state. It was not until after World War II that the discipline of economics lost its reputation for radicalism, and not until the closing decades of the century that it became synonymous with business conservatism. Early organizational leadership was provided by Richard T. Ely, a man of Christian socialist leanings who studied economics under Wagner and Karl Knies in Germany. Impressed by the German economists’ use of the Verein für Sozialpolitik to advance their reformist agenda, Ely, in 1885, organized the AEA from out of the ASSA.10 “We regard the state,” the organization’s charter stated, “as an agency whose positive assistance is one of the indispensable conditions of human progress.”11 Organizing helped this cohort of dissenters to gain early professional advantage over the older generation of classically trained economists, and Ely’s Outline of

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Economics became the most widely used economics textbook through World War II. (Theodore Roosevelt, for one, claimed to have learned his economics from it.)12 Again, the German connection was key. By Daniel Rodgers’s tally, “[o]f the initial 6 officers of the American Economic Association in 1885, 5 had studied in Germany; of its first 26 presidents, at least 20 had done so.”13 While most of the young Americans harbored reservations about the extreme statism they found in Germany, they were thoroughly convinced by the experience that the doctrine of laissez-faire must go, and their initial assaults on its ramparts used the sweeping dicta of their German mentors. But after a number of faculty dismissals around the country by businessminded trustees, including Cornell’s dismissal of Henry Carter Adams, one of the leading young economists, the economists searched for safer, more circumscribed grounds for state intervention. Adams himself provided these grounds in “Relation of the State to Industrial Action.”14 Adams there delineated two types of justifiable state intervention: social legislation (or “factory legislation”) that sets an ethical floor wherever unregulated competition threatens a race to the bottom; and public controls on “natural monopolies”—businesses such as railroads and public utilities in which competition is short-circuited by the unlikelihood that a competitor could ever recoup the cost of building a rival service (Adams fruitfully left open the forms that public control might take—whether price regulation, commission oversight, public franchising, the establishment of a state-run competitor, or outright public ownership of the monopoly.) These were technical rationales for what were, in effect, circumscribed versions of the respective political programs of Schmoller (advocate of worker protections) and Wagner (advocate of “state socialism”), the most influential German mentors to the young economists.15 It was a platform around which the economists could safely rally, and its rationales became a major intellectual underpinning for progressive politics on through to the New Deal—from early state wages and hours legislation to the Fair Labor Standards Act, from the turn-of-the-century battles over urban utilities and transit systems to the TVA. Progressive economists such as Adams brought intellectual order to the disparate reform proposals coming out of Europe and the United States. These faculty dismissals also cemented the social scientists’ strategy for exerting influence. Again, Wagner and Schmoller had presented different models. Wagner was the great publicist and agitator, seeking influence by operating directly on the public mind. Schmoller was the consummate in-

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sider, exerting influence through governmental elites. For the returning Americans, fresh from their German epiphany and lacking established links to the levers of public power, Wagner’s approach seemed most logical and fit with the evangelical traditions out of which so many of them sprang. But the proven precariousness of their academic soapboxes soon convinced them of the prudence of the Schmoller approach. The rhetorical disadvantage that the public arena imposes on the purveyor of expert knowledge reinforced this conviction. The founding of Verein-inspired professional associations became part of a shift in strategy from barnstorming to a quiet insider’s game of peddling in policy expertise. There was only one catch: the success of this strategy waited on the development of an autonomous state apparatus of the sort that existed in Germany. The social scientists’ vision of a well-ordered society, and their understanding of their proper role in that society, both pointed to the need for a new, and independent, American state. As Skowronek writes of Henry Carter Adams: In a characteristically progressive style, he looked forward to a day when the power of the state and the energies of the entrepreneur would be joined in harmony on behalf of their mutual interest in the further development of the private economy as a whole. Before this new harmony could be attained, however, the American state had to gain a measure of autonomy from the private sphere—a capacity to stand apart from the private interests and to assume a supervisory role on the basis of disciplined and principled action.16

State, Parastate, and Progressive Reform Since this day had yet to arrive, Adams and other thoughtful reformers actually shied away from giving more responsibility to the existing American “state.” With government in thrall to patronage parties and the business interests they increasingly served, its actions were marred by corruption, inequity, and profligacy. An example atypical only in its scale was the Pension Fund for Union Soldiers and their dependents, which through fifty years of politically motivated liberalization and expansion had become, by the first decade of the twentieth century, the largest, most expensive, and most corrupt pension and disability program in the world, doing much more to serve Republican Party patronage needs than legitimate veteran needs.17 It hardly inspired entrusting congressional government with new

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governance tasks or social spending. On the analysis of the reformers, it was weakness in the state that gives rise to “big government,” because officials are unable to resist the pressure of constituents and special interests. They would have understood perfectly the paradox of the present-day Republican Party, whose “antigovernment” representatives have presided over an explosion in pork-barrel spending. Where the state is weak and dependent, the state no longer regulates the market, but the market the state. In present-day terminology, it is “captured” by special interests. Not until the independence of the state had been increased could an equation plausibly be made between government expansion and the advancement of the public good. The reforming social scientists thus became active participants in, and often intellectual leaders of, a broader progressive reform movement with a strategy of national betterment that circumvented formal governance institutions (the legislatures, parties, and courts). The strategy had both a cultural and an institutional component. Culturally, the objective was to elevate human character, casting off the selfish, hyperindividualist ethic of “every man for himself ” and releasing an ethic of sympathy, solidarity, sociality, and commitment to the common good. Rodgers notes of the returning German-trained economists what was true of a wide range of reformers in this period, that “through the mid-1880s, the most prominent of them labored to promote a transformation of values deep and thorough enough to hollow out the system of competitive individualistic economics at its ethical core.”18 Cooperation, it was hoped, might replace competition as the motivating force of societal development. How was this ethical transformation to be brought about? Institutionally, the strategy was to work through what Eldon Eisenach has aptly called “parastate” institutions—families, churches, revival meetings, schools, universities, labor unions, corporations, settlement houses, newspapers and journals, trade associations, professional associations, women’s clubs, farmer cooperatives, charities, and foundations, as well as independent governmental commissions and agencies. It was in many respects a bulked up descendent of the old Protestant strategy of improvement through parachurch organizations and voluntary associations. But the reformers saw these institutions as more than instrumental. As social environmentalists, they anticipated participation in them to be itself transformative, and they threw their support behind the burgeoning cooperative movement especially as the road to human sociality. It may seem eccentric to describe these (mainly) “civil society” institu-

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tions as statelike. Yet the same philosophical idealism that marked Lieber’s concept of “the state” infused the thinking of the progressive reformers, for whom “the state” was any institution—indeed, any individual—actively fostering good citizenship and carrying out the ends of an ideal cooperative national community. The reformers’ strategy was to “convert” (or simply found) these parastate institutions, infusing them with progressive values of service to others (“Christianizing” them, in language common to the day), and through them, to convert the nation. In essence, the progressives were erecting, in thought and practice, a rival system of national governance. For the external coercion of courts of law, they would substitute the suasion of public opinion; for the factionalism and self-seeking of party government, they would substitute the public-spirited activity of a dense network of parastates.19 The language in which this project was cast varied—from Scottish sentimental philosophy, to classical republicanism, Rousseau, German organicism, and Christian socialism. All of them tilted at the individualist philosophy of equal rights and laissez-faire—the philosophy of “drift” that, in an age of industrial giants, was seen as underwriting the prevailing inequality and human degradation. Of all languages in which to cast this project, however, the favorite was Christian postmillennialism—the same language of building the Kingdom of God on earth that inspired the papal revolution, the Puritan migration to America, and John Quincy Adams’s program for internal improvements. Writing in 1898, Vida Scudder, a widely read professor of literature at Wellesley, spelled out the progressive vision in the conventional terms, “that with the intellectual impulse toward the reconstruction of social theory, and the practical impulse toward the activity of social service, is blending more and more a spiritual impulse deeper than either of these, imperatively desiring and seeking the realization of the Kingdom of God on earth.”20 More compellingly than any other idiom, postmillennial Christianity, with its call to build the Kingdom of God, provided a rationale for individuals to subordinate their selfish drives to a project of national reconstruction. It brought progressives a large body of rank-and-file allies, especially in the Protestant parachurch movements, from the Protestant Home Mission to the Social Gospel. It also provided the progressives with their sense of vocation. They saw themselves as heirs of (literally) their Puritan forefathers. They viewed the nation as a convenanted people, and implicitly placed themselves in the role of the learned clergy, a clerisy within a democracy.21 If they could convert America to the postmillennial cause,

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at least metaphorically, then equity, order and progress could be gained without external coercion, because the end would be common to all. The filiation with postmillennial Christianity was most explicit in the first generation of professional social scientists, some of whom, such as Ely and John Commons, became leading figures in the Social Gospel movement, and almost all of whom at various times spoke in explicitly postmillennial terms. But the filiation is still traceable in the later writings of such ostensibly secular thinkers as Herbert Croly and John Dewey. When Croly spoke of replacing the force of law with enlightened opinion, or when Dewey spoke of democracy as the pursuit of common ends through free voluntary cooperation, or when either spoke metaphorically of “redeeming” the nation, they were plucking strings on a familiar postmillennial harp.22

Progressivism Meets Presidential Politics The ascent of progressives into the presidency provided the first significant opportunity for state-building since the Civil War and breathed new life into the original state-augmenting program of the German-trained social scientists. Since the Civil War, the Republican Party had been the natural home of progressive reformers. In the tradition of the New England Federalists and the American Whigs, it remained in part a “party against parties,” the carrier of a national, constructive, even redemptive vision. And its demographic base in the urban-industrial belt running from New York to Chicago put it in contact with the progressive front lines. Theodore Roosevelt, Republican from New York, gave the first forceful expression to progressive aspirations on the national political stage. Roosevelt shared the aspiration of the German-trained economists and political scientists to increase the administrative capacity and independence of the executive, and breathed new life into their original designs. As he saw it, neither legislatures nor courts had the capacity to meet the challenges of governance in an industrial age. Only executive administration did. Neither did legislatures, nor courts, best embody the public interest when it came to industrial regulation and control. Independent professionals and administrative experts did. Nor could cities and states manage all the problems, nor exploit all the opportunities, raised by industrialization. The national government had to step in. It bore ultimate responsibility for the welfare of the people, with the president in particular functioning as the “steward of the nation.” As president, therefore, Roosevelt pushed for

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“a concentration of national administrative power and an insulation of expertise that would facilitate stability, harmony, and further growth in the industrial economy.”23 Like so many progressives, Roosevelt took inspiration from imperial Germany, whose rapid transformation into a European powerhouse he attributed to cooperative relations there between business and expert government. He admired Hamilton and disparaged Jefferson, regretting only that the former did not share the latter’s trust in the political sense of the common man. But when it came to specifics, what Roosevelt was seeing in Germany, what he thought he saw in Hamilton, and what he was embracing as president, was the governance model promoted by Henry Carter Adams and other German-trained economists. This model of an alliance of executive power and administrative and policy expertise informed Roosevelt’s efforts on behalf of civil service reform, railroad regulation, and national resource conservation and planned development (efforts largely foiled by a Congress jealous of its historic prerogatives). Taking a line from Croly, Roosevelt would later dub it the “New Nationalism.” By the election of 1912, the progressive movement was at high tide, and all political parties—Woodrow Wilson’s Democrats, William H. Taft’s regular Republicans, and Theodore Roosevelt’s bolting Progressives—claimed the progressive mantle. The split in the Republican Party allowed Wilson to slip through what was otherwise a Republican lock on the presidency. Wilson’s election muddied the progressive waters. In contrast to Roosevelt, Wilson’s Democratic base lay in the Southern agrarian and Western populist periphery, and his program was tailored to their interests. Wilson latched on to the argument of Louis Brandeis that economic bigness was not the natural outgrowth of new technology, but the artificial outgrowth of new liability laws and new financial wizardry. He thus imagined that a Jeffersonian world of equal rights and opportunities might be reclaimed, despite the advent of industrial capitalism, provided that Jeffersonianism were supplemented with a positive program of government action. The answer to the tyranny of concentrated wealth was not to regulate the monopolies, as Roosevelt proposed, but to break them up—or where this was impossible, to let them be “owned by the public and not by the capitalists.”24 This was a policy neither of “regulated monopoly” nor of “unregulated competition,” but of “regulated competition.” In this sense, Wilson, no less than Roosevelt, saw a role for federal intervention in the economy, and both saw the need for a strengthened administrative apparatus to direct this intervention. But Wilson’s program was continuous with that of William J. Bryan and the Populists, in that it

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borrowed some of the statist tools of progressivism to shore up the very world of small producer capitalism that progressives saw as a relic in need of transformation. We might call it “populist progressivism,” although Croly preferred to denigrate it as “Jeffersonian socialism.” In practice, the daunting prospect of actually trying to break up monopolistic industries forced Wilson to opt for Roosevelt’s administrative, regulatory strategy after all. Arthur Schlesinger Jr. goes too far, however, in describing this as a full embrace by Wilson of Roosevelt’s New Nationalism,25 because Wilson’s object remained quite different. Unable to shore up the economic world of the South and West through industrial atomization, he did so through regulation (the Federal Trade Commission, or FTC) and subsidy (co-opting the progressive income tax). Wilson also accepted the received structure of constitutional government. Unlike Roosevelt, who claimed the authority to act wherever the Constitution did not expressly forbid it, Wilson would work through Congress, respectful of congressional prerogatives throughout. It was imperative to Wilson’s electoral prospects that he pass his New Freedom legislation; he knew he would face a reunited Republican party in 1916, and he needed the reform voters the New Freedom would attract. The price was turning over control of the independent commissions—the Interstate Commerce Commission (ICC), the FTC, and the Tariff Commission—to Congress, whereas Roosevelt and the economists envisioned such commissions under the protection of the executive. Accordingly, the administrative breakthroughs of the New Freedom legislation did little to strengthen the executive’s hand.

The Watershed of World War I Although Wilson did not become a New Nationalist in his first term, Schlesinger was surely right that “[t]he requirements of [war] mobilization made [Wilson], in the end, the best New Nationalist of them all.”26 Congress was utterly unsuited for the kind of rapid, unified decision making that a war effort required, and Wilson quickly moved to assert executive control. The railroads and the telephone and telegraph systems were nationalized. The War Food Administration was instituted to attempt to control food production and consumption. The Capital Issues Committee tried to regulate private investment. The War Finance Corporation directed and financed industrial expansion. Numerous independent public corporations were established to manage such matters as housing, fleet construction, and sugar

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production. Most dramatically, the Sherman Antitrust Act was suspended and, after a fair amount of administrative chaos, the War Industries Board (WIB) was established, reporting directly to the president, with the power to commandeer manufacturing plants, products, mines, and materials, to regulate prices and compensation, and otherwise control the nation’s industry. Despite considerable apprehension among Progressives about the coming of war, its actual arrival produced a frisson of excitement, as they were convinced that it would be a grand opportunity for finally instituting progressive economic controls. Reporting on the social science associations’ annual meetings in December 1917, Neva Deardoff of the Philadelphia Bureau of Municipal Research gloried in the common refrain she heard: “Laissez-Faire is dead! Long live social control!”27 “We stand,” exulted Walter Lippmann, “at the threshold of a collectivism which is greater than any as yet planned by a socialist party.”28 “What we have learned in war,” wrote Walter Weyl of the New Republic, “we shall hardly forget in peace . . . The new economic solidarity, once gained, can never again be surrendered.”29 As it turned out, the war produced far more frustrations than triumphs. For one, the mobilization effort made clear the woeful dearth of data on industrial capacity, shipping capacity, and other crucial features of the U.S. economy, which were prerequisite to any rational coordination of it. For another, although Wilson invited streams of academics into the war effort, management of the war economy of necessity fell to the dollar-a-year men from industry. Absent an experienced cadre of public administrators, the captains of industry were the only ones with a credible claim to have the administrative experience, and industry knowledge, necessary for such a large undertaking. The management of the economy would thus hardly display the progressive spirit the reformers had hoped, and, being engrossed by business executives on loan, would do nothing to build a cadre of professional public administrators. At the end of the day, the remarkable apparatus of the WIB disappeared as quickly as it was assembled. Yet enough possibilities were glimpsed to keep the dream of a cooperative commonwealth alive. For the next decade, despite the shortcomings of the mobilization effort, the war experience would be referred to again and again as evidence of the potential for expert-government management of the national economy. And when the Great Depression struck, the “analogue of war” would be pervasive in New Deal thinking about how to lick it.30

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The Progressive Crack-Up and Reconstitution It is conventional to use World War I to mark the end of the Progressive era, and for obvious reasons. As a political movement, progressivism crumbled, succumbing to internal divisions over Wilson’s internationalism, divisions over cultural politics, and a general public exhaustion from the moral fever of the war years. Particularly damaging was the split in the Protestant churches that had long provided progressivism with its popular base. Prohibition proved the final crusade of a united American Protestantism. Labor union agitation during and after the war alienated middle-class Protestants from the prolabor stance of the Social Gospel, and Protestant support for labor and factory legislation fell off. The divinity schools, seminaries, and pastorate largely retained their liberal, Social Gospel theological commitments, but rank and file members increasingly withdrew their support from the social activism of the church leadership, and a significant number gravitated toward fundamentalist reaction.31 This development was accompanied by a turn away from Europe as the source of answers for America’s problems. The war discredited Europe in the eyes of most Americans. Especially sharp was the turn away from Germany, until then the leading model for American reformers. The war against the evil kaiser and the German “Huns” choked the stream of American students going to Germany to a trickle, and reformers downplayed any foreign inspiration for their reform ideas. Not coincidentally, the spread among the states of German-inspired social insurance systems came to a full stop.32 Finally, the war stimulated a number of antistatist movements that the subsequent encounter with totalitarianism would greatly amplify. For some, it was the state’s encouragement of war hysteria that gave them misgivings. For example, we see stirrings of civil libertarianism among intellectuals appalled by the jingoism, xenophobia, and indiscriminate anticommunism that the war unleashed. Relatedly, the heavy-handed “Americanization” drives conducted by the government and many private groups, along with the passage of Prohibition, brought new recruits to the Lyrical Left’s revolt against public paternalism in the social and cultural sphere. Many now disowned the term “progressive” and shunned the label “reformer,” not because they had given up on reform, but because of these labels’ association with the tactic of moral crusade. However, these reevaluations did not end progressivism, so much as bring a more intense focus on those parts of the progressive agenda most readily associated with science and engineering, the most sober, and most

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undisputedly American, of the progressive idioms. In particular, the ebb of labor legislation, compensatory social insurance, and progressive cultural politics, left intact the progressive call for a more cooperative, more efficient society, which is where the call for expert guidance was greatest. Progressivism went scientific, even “technocratic.”33 That the talents and means required for ordering the social world might be quite different from those required for ordering the natural world did not overly concern the American mind. As Barry Karl notes, one of the traits that most distinguished American reformers from their European counterparts was their “refusal to see a threat to traditional liberal democracy in the logic of science or in the complex demands of technological advance.”34 Cities operating under a council-manager form of government usually chose engineers as the city managers. Science and technology could be bent to the logic of democracy. They could be democratized, or at least turned to democratic ends. Indeed, the United States’ sole addition to the schools of Western philosophy—American Pragmatism—was premised on a basic uniformity of approach to the natural and social worlds. American Pragmatism began with the reflections of Charles S. Pierce on the logic of natural science experiments. It continued with William James’s famous definition of truth as “a hypothesis that leads to successful action.” It reached its culmination with John Dewey, who, in The Problem of Certainty, presented the trajectory of human history, practical as well as intellectual, in terms of the attempt to cope with the uncertainties of the natural world, and who believed that the solution to the era’s social problems would be found in the application of the scientific method to the social field. What is more, the public’s hysteria during the war, and its turn away from reform at the end of the war, induced among reformers a widespread disillusionment with popular democracy. Lippmann penned particularly damning portraits of democracy in Public Opinion (1922) and The Phantom Public (1925), arguing that the public is condemned to view issues through a syrup of stereotypes, and is easily manipulated. “[T]he common interests largely elude public opinion entirely, and can be managed only by a specialized class whose personal interests reach beyond the locality.” Croly’s disillusionment was yet deeper. Speaking of his prewar views, Croly wrote, “I among others imputed to the thoroughly democratic commonwealth the power to contribute enormously and speedily to human welfare. It was a mistake.” Croly lost all interest in politics and devoted his final years to the instrumentalist project of “increasing knowledge of human

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behavior and how it can be modified, economized and utilized.”35 H. L. Mencken’s comments on democracy were the most acidic of all, dropping even the pretense of carrying a constructive side. “[T]he only progressive to survive the 1920s with his democratic faith intact,” James T. Kloppenberg writes, with only slight exaggeration, “[was] Dewey.” And even he had to concede that the process of public reeducation desperately needed redoubling.36 The fact that the middle classes, on whose support the reformers had always rested their hopes, did not in the end seem much interested in reform, led some in a radical direction, toward the Marxist notion of a proletarian revolution. The onset of the Great Depression gave this view some currency among intellectuals; Marx was never more popular in the United States than in the 1930s.37 But the actual attempt in the aftermath of World War I to strike an alliance between “hand and brain” for the cause of social reconstruction—an alliance successfully struck in Britain—came to naught in the United States, where intellectuals were uncomfortable with the notion of class conflict, and workers were quick to sell out all other reform demands for the bread-and-butter of collective bargaining rights.38 For most progressives, the lesson to be learned was that reform could not be entrusted to the amateurs, whether mass, middle class, or elite. What the country needed was not the proletariat but the professionals; not a mass uprising, but more science and more scientific intervention. With the loss of democratic faith, most progressives now looked to insulate administration from democratic accountability—not to undermine democracy, but to save it. Politics and administration could and should be separated, and more authority given to the latter. For example, new emphasis was placed on the idea of independent commissions and other kinds of independent government agencies—a “fourth department of government” in Croly’s words.39 James Landis became a leading voice for the independent agency ideal, providing it with its fullest expression in The Administrative Process (1938). As Cass Sunstein notes: Reformers believed that administrative officials would serve as independent, self-starting, technically expert, and apolitical agents of change. This basic understanding wedded the original constitutional belief in the need for an energetic national government to the desire, associated with the Progressive movement, to insulate public officials from partisan pressures in the service of a long-term public interest. The concept of autonomous administration, now under sharp attack, was originally the source of enormous optimism.40

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In short, the war experience on balance only tightened the intellectuals’ embrace of an independent, expert-guided state apparatus.

Social Science in the Interwar Years Reflecting progressive disenchantment with the voting pubic, interest in instrumental, governmentalist social knowledge welled up across the social sciences in the 1920s, backed by ready money from the major foundations.41 Charles Merriam, the standard-bearer for political science in the 1920s, was typical. As Dorothy Ross writes, Merriam’s “old Progressive faith in the educability of the people turned into the need for scientific techniques by which leaders could lead and the public could be trained into accepting the correct path. Science became increasingly a substitute for political prudence.”42 The young guns of political science were even more instrumentalist in their thinking. Harold Lasswell, a Merriam student, brought his experience with the government’s wartime propaganda department to bear upon the problem of social reconstruction. To Lasswell’s mind, political science was a therapeutic policy science—one that, through the manipulation of significant symbols, could induce the public to substitute “wise co-operation for wasteful conflict.”43 E. G. Catlin, a rising star at Cornell University, did not see social science as able to determine ends, but in a no less instrumental vein saw political science as generating therapeutic instrumentalities for the use of legislators and administrators.44 Sociology underwent a similar shift. At the turn of the century, sociologists had introduced the concept of “social control” to the progressive vocabulary. Expressing the “parastate” approach of early progressivism, sociologists initially placed emphasis on the multifarious diffuse socializing mechanisms (family, custom, church, schools, discussion, science) that bent individual feelings and ideas toward the social interest, thereby helping solve the problem of social order. But the same democratic disappointments that transferred the hopes of political scientists to experts also shifted the emphasis of sociologists from diffuse, unconscious control to centralized, conscious control. The image of a diffuse “moral-educational regime” gave way to a more positivist, technocratic image of social control by experts acting in and through governmental bodies.45 A similar plot runs through American legal thought. The “legal realists” were the carriers of progressivism within the legal profession. Their early writings were already calling for judges to make greater use of scientific expert advice in their decision making. In the early 1920s, Roscoe Pound, dean of Harvard Law School, began advancing a more aggressive ideal of

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the judge as “social engineer.”46 Felix Frankfurter, the imposing legal scholar and future Supreme Court judge, followed in Pound’s footsteps, arguing that the U.S. Constitution, which the sitting Court was interpreting in a restrictive, antiprogressive vein, “has ample resources for imaginative statesmanship, if judges have imagination for statesmanship.”47 Whether advocating the educational approach of John Dewey or the more instrumental approach of the young social scientists and jurists, all were part of a rump of progressive intellectual elites that believed it had a responsibility to reform America’s institutions and citizenry. This was a sense of calling that would not survive the encounter with totalitarianism.

The Quest for National Efficiency The principal end toward which all this statesmanship and administration was to be directed was, of course, management of the industrial economy. Accordingly, the governmentalist, interventionist shift in thinking in this period is nowhere more clear than in economic thought, both popular and professional. Nothing had been more nationalized by the war than the image of the economy.48 Seemingly every material and human resource from every quarter of the country had been pulled together in the common cause of victory. But the experience raised questions about the efficiency of the U.S. economy. For years, reformers—from Edward Bellamy to Frederick Winslow Taylor, from German-trained economists to conservationists—had been harping on inefficiencies in the country’s industrial system: weakness in the transportation system, poor resource management, wasteful duplication of effort, irrational organization of shop floors, unsystematic management practices, failure to use labor-saving devices, costly labor-management conflicts, and pockets of ill-fed, ill-educated, and therefore underperforming workers. The war stretched the industrial system to its limits, and many of these weaknesses were brought into the foreground. Surely the country could do better. Opinion differed only on how. Most agreed that it would require a better use of the nation’s growing pool of social scientific and administrative expertise. The war made productive efficiency the great public cause of the 1920s, and it made “waste” the great social vice. There was something mystifying about this extraordinary emphasis on national productive efficiency. As Frank Knight complained in these years (as he gradually worked his way to the free market position that he would bequeath to the Chicago School of economics), efficiency can be defined

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only with respect to the production of some value. During the war, the value was military victory and the materiel necessary thereto. The war had thus provided the “national purpose” that progressives like Croly understood to be prerequisite to national economic organization. But what this national purpose might be now that the war was over was being left maddeningly vague.49 Nevertheless, the psychology of the war years outlived the practical demand that had given it sense. The felt need for national efficiency sealed the progressive turn toward science, engineering, and cooperation, and it also invited the extension of each of these instrumentalities to problems not just local and material, but also national and social. Taylor’s ideas on “scientific management” were among those given new reach. In particular, his idea of having engineers, rather than workmen, determine the “one best method” of doing a job, was extended by some of his followers, such as Henry Gantt, to society at large. Harmonious and efficient social cooperation could be secured through a kind of social Taylorism, under the direction of engineers. Herbert Hoover, the world renowned engineer and future U.S. president, was not himself a Taylorite, but after the war he, too, embarked on a national program of waste elimination and production maximization. Among his initiatives, he marshaled the historically fractious engineering associations into a national organization, the Federated American Engineering Societies, which Hoover then steered into undertaking a major study of the waste generated by the competitive economy that could be eliminated through interfirm cooperation.50 Engineers, he argued, had the responsibility to “visualize the nation as a single organism and to examine its efficiency toward its only real objective—the maximum production.”51 Thorstein Veblen, too, advocated visualizing the nation, and the nation’s industrial system, as a single organism. But his prescription was far more radical. Veblen was a satirist of capitalism, a cutting critic of orthodox economic theory, and an innovative theorist of business enterprise. For two decades he had been drawing attention to the contrast between the logic of production (or “industry”) and the logic of profit (or “business”), to the disadvantage of the latter. “Business” meant the dominance of the moneymakers (bankers, brokers, lawyers, salespeople) over the producers (the workers and the engineers). It meant suppression of technological innovation (to protect existing capital investment), restriction of production, and unemployment as conscious business strategies. Now Veblen proposed abolishing the price system and erecting in its place a “Soviet of Engineers” with power to allocate resources according to the logic of maximum production

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rather than of profit. The Engineers and the Price System (1921), unlike some of Veblen’s earlier works, was given little credence among economists, but it captured the imagination of the intellectuals. Stuart Chase, a Veblen student who was the leading economic popularizer of the era, disseminated his ideas among the public. “Why should Russians have all the fun of remaking the world?” he asked.52 One Veblen devotee, a New York engineer named Howard Scott, founded an organization called the Technical Alliance with the goal of consummating his plan. In 1932, with the Depression reaching its nadir, Scott broke through with a brief, bright day in the sun as the head of a group called Technocracy that promised a tenfold increase in national productivity if engineers were allowed to take over from the politicians.53 It was a flagrant example of Veblen’s influence; nonetheless, any time talked turned to production “for use” rather than profit, as it often did in these years, Veblen was in the background. Also in these years, “planning”—a term originally describing the shaping of urban landscapes—caught on as a term for the engineer-like task of shaping the course of economic development. Joseph Stalin instituted his five-year plans in this period, but no progressive believed himself indebted to the Russians. V. I. Lenin, it was well known, had imported Taylorism and American engineers to Russia, not the other way around.54 Charles Beard, now at the height of his influence, argued that in the “machine age,” technology imposes its rationality even on politics, with national planning as the natural and necessary culmination. Even progressive American businessmen adapted to the language of planning. Edward A. Filene, a Boston department store magnate, and Henry S. Dennison, a manufacturer of efficiency-enhancing office supplies (such as paper clips and labels), sailed into the orbit of social Taylorism and talked openly of the need for government planning for business.55 As the great, nonpartisan engineer, Hoover seemed the perfect choice to lead a nation gone engineer-crazy, and both parties wanted him (including FDR). But to the disappointment of many progressives, Hoover channeled his postwar missionary zeal into an energetic but relatively conservative program of economic “associationalism.” First as Commerce secretary under President Calvin Coolidge, then as president, Hoover encouraged the formation of trade associations in each industry to carry out the standardization and waste elimination that his engineering study had projected. Beyond this, Hoover saw the state as but the lead among a variety of actors, including trade associations, chambers of commerce, professional groups, social science research organizations, and philanthropic founda-

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tions. These actors would cooperate to provide promotional services to U.S. businesses—services such as the dissemination of best-practices among corporate managers, and, especially, the generation and dissemination of knowledge of market conditions on the assumption (less plausible today, with our heightened awareness of the inherent volatility of multiactor competitive games) that this would rationalize business investment and smooth out the business cycle.56 Social scientists would do the research, private foundations would finance it, the government would sponsor it, and economic interest groups would cooperate in implementing the final recommendations. It was in its own way an effort at national planning, born of an alliance between the executive and social scientific experts, and aiming at a cooperative commonwealth. But it left the state’s relation to business as strictly promotional, its relation to social science as strictly consultative, and its prescriptions for economic adjustment strictly voluntary.

Institutionalist Economics Among professional economists, as among other social scientists, the movement was away from voluntarism and toward stronger governmentalism. The economics profession of the interwar years, like that of the prewar years, was home to a plurality of approaches—classical, marginalist (or “neoclassical”), Marxist, and historical. The real dynamism, however, came from a group that called themselves—or were called by others— “institutionalists.” The institutionalists were a heterogeneous lot. Pioneers included Veblen (to whom the term was first applied), Wesley Mitchell, and John Commons— the three canonical figures—as well as Charles Cooley, Simon Patten, Robert Hoxie, and Carleton Parker. Among the younger generation were John M. Clark, Walton Hamilton, Rexford Tugwell, Sumner Slichter, Simon Kuznets, Gardiner Means, and Leon Keyserling. Only some of them (notably Commons) actually studied institutions per se. Mitchell, the most eminent of the group, was famous for statistical studies of the business cycle. Cooley studied socialization in “primary groups” and is viewed today as a founder of the discipline of sociology; Clark pioneered the study of economic “inappropriables,” or externalities; Slichter was an authority on labor issues; Tugwell concerned himself with economic planning; and so forth. But they did have features in common beyond their dissatisfaction with marginalist (or Marxist) economics. They all placed strong emphasis on empirical research, being highly critical of

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“deductive” approaches. As a corollary to this, they, like their Germantrained predecessors, emphasized the historical dimension of economic phenomena, in contrast to the “static” analysis of marginalism, and pointed up the significance of changing economic institutions and norms. In both these respects, they believed themselves to be more truly scientific than the marginalists. At the same time, they saw themselves more ethically engaged than their colleagues, showing special concern for instances where market values diverged from social values. And, finally, they all believed that concerted action, especially action by government entities under the guidance of experts, could help correct these divergences and augment human welfare.57 Two institutional economists in particular would develop important relations with Roosevelt’s New Deal. Wesley Mitchell, the business cycle expert, brought to the National Resources Planning Board his protoKeynesian notion of using spending on public works as a “balance wheel” in the economy. Rexford Tugwell’s connection to the New Deal was even closer. Already sympathetic to social Taylorism, Tugwell, like so many, was radicalized by the Great Depression, and in a 1931 speech to the American Economic Association, came out for comprehensive national planning, which he described thus: Planning is by definition the opposite of conflict; its meaning is aligned to co-ordination, to rationality, to publicly defined and expertly approached aims . . . Planning implies the guidance of capital uses; this would limit entrance into or expansion of operations. Planning also implies adjustment of production to consumption; and there is no way of accomplishing this except through a control of prices and of profit margins . . . Business will be logically required to disappear . . . To take away from business the freedom of venture and of expansion, and to limit the profits it may acquire, is to destroy it as business and to make of its something else . . . The traditional incentives, hope of money-making, and fear of money loss, will be weakened; and a kind of civil-service loyalty and fervor will need to grow gradually into acceptance. New industries will not just happen as the automobile industry did; they will have to be foreseen, to be argued for, to seem probably desirable features of the whole economy before they can be entered upon.58 The speech was not exactly well received by all present. But Tugwell’s credibility had been greatly augmented by the fact that he was one of the

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few economists to predict the sudden economic downturn, which he based on the productivity of labor having greatly outstripped the wages of labor. Not long after this speech, despite its radicality, Tugwell was brought in as a member of Roosevelt’s Brain Trust. Unlike Marxists, who see the state eventually withering away, and unlike neo-Marxists, who, while abandoning the Marxist notion of a stateless communist millennium, continue to see the state as an instrument of class domination or an arena of class struggle, the institutional economists, like their German-trained predecessors, envisioned the state as a permanent feature of a mature capitalist economy, and as oriented toward the public good under the guidance of economic and technical experts. With the onset of the Depression and the New Deal all signs were that their prominence would only increase. In sum, by the 1930s all the social sciences were looking to disinterested political leadership and scientific expertise—in short, to state autonomy— as the answer to the multisided crisis of American democracy. What is more, American social scientists were finally getting their crack at direct government service, helping staff the mushrooming governmental agencies that undertook massive programs of public works, information collection and dissemination, legislation drafting, materials procurement, rationing, strategizing, and a host of other activities, all in the name of the national interest. Therefore it is all the more striking that by the end of World War II, after several generations of increasing interest among American social scientists in the possibilities of autonomous state action, and precisely when the reality of state autonomy should have been most glaringly obvious to them—because they were surrounded by its activities as never before, and indeed were themselves often a part of it—they dropped the subject. The dearth of state-centered studies in the postwar period is thus a great puzzle. Looking back over the historical record, it is as if a long period of accelerating speciation ended suddenly in a mass extinction. There is no evidence that this was the result of a grand conspiracy on the part of American social scientists to conceal their new-found power in the halls of government. Rather, the evidence points to the rise of “totalitarianism” as the cataclysmic event that wiped out this rich speciation. Faced with the new and increasingly terrifying regimes of Italy, Germany, and the Soviet Union, American intellectuals rallied to the defense of American democracy and the American way of life. In drawing invidious comparisons between American democracy and totalitarianism, recognition of the autonomy of the democratic state was suppressed, as was the progressive program of state-building itself.

3 A Unique Economic Path

Testifying before Congress in 1945 in defense of the Full Employment Bill—the bill on which American Keynesians pinned so many of their hopes for the postwar economic order—Harold D. Smith, director of the Bureau of the Budget, made the case for fiscal management: “Fiscal policy will be one of our major weapons both in avoiding depressions and in combating inflation. I believe that fiscal policy, both on the revenue and the expenditure sides, is the most potent weapon we have for influencing markets and employment, especially when we need quick results. It is also a means of action most consistent with free enterprise.”1 Living as we do in an age in which “market fundamentalism” has swept the globe, with the United States as its prophet, it appears only natural that “consistency with free enterprise” should have been, for Americans in 1945, the shibboleth of what was acceptable in the way of economic policy tools.2 The United States, both in its own eyes and the eyes of the world, is the paradigmatic example of a market capitalist society, and has been for more than a century. It should be noted at the outset that the view of the United States as a pure expression of market capitalism is at least partly optical illusion. To begin with, it neglects the presence within the U.S. economy of a massive national security apparatus—the “military-industrial complex”—that acts as a major locus of national planning, research and development, public investment, public ownership, and employment, and that has been responsible for everything from the federal highway system to the space program, the computer, and the Internet. Such a view also neglects the unparalleled influence that the American common law court system exerts over the structure of American capitalism. Throughout U.S. history, the relative weakness of Congress and the presidency as sources of “state action” in the economy has been to some degree compensated for by the strong hand of the courts 81

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in redefining property rights and erecting regulatory regimes.3 Finally, it neglects the exceptional scope and scale of the American nonprofit sector (hospitals, colleges, research institutes, journals, social work organizations, and so forth), the activities of its churches, and the activities of its philanthropic foundations, which for a century have undertaken tasks that in other countries have fallen to government.4 The distinct legal status of these bodies makes them, though not fully public, something more than private. They are “parastate” organizations, in Eisenach’s terminology. All these are exceptional features of the American landscape, which presumably goes some way toward explaining their exclusion from the normal field of economic vision. And because of them, the United States fails to conform to the textbook image of a free-market capitalist society, even before one turns to the regulations, subsidies, and public provisions of basic services (education, urban transportation, postal service) of which economic libertarians complain. But on the narrower issue of the legislature’s or executive’s degree of intervention in the civilian economy, the impression of the United States as the seat of free enterprise is justified. In the wake of World War II, every other country, whether belonging to the “first world” of industrial democracies, the “second world” of communist regimes, or the “third world” of developing nations, embraced some degree of “collectivism,” whether in the form of central economic planning, nationalized basic industries, corporatist government-business-labor bargaining, or some combination of these. France, for example, in addition to nationalizing industries such as banking, electricity, gas, and coal instituted a strong, politically independent, central planning board (the Commissariat Général du Plan) that directed the postwar reconstruction, and managed the economic miracle of the 1950s, by setting investment and output targets and prioritizing investment allocations. Germany, meanwhile, instituted a “social market,” a corporatist arrangement in which representatives of government, business, and labor, acting through supervisory boards (Betriebsräte), collectively determined wages and hours for entire economic sectors, and in which, at the plant level, labor representatives on “works councils” were consulted on production, investment, and rationalization plans, and codetermined with management work rules, personnel policies, and such like. Austria and the Scandinavian countries went even further in this direction. Even Great Britain, the font of laissez-faire economics, embraced the new thinking. In a shock to the world, the British in 1945 repudiated the

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party of Winston Churchill, the Conservative Party, which too late scrambled to align itself with the social-democratic mood of the public, and put in its place the Labour Party, an alliance of trade-unionists and intellectuals headed by Clement Attlee, a former social worker and Christian socialist. In Labour hands, Britain, like France, nationalized its basic industries, including transportation, electricity, coal, iron, and steel. Labour also talked much of central economic planning, although these ambitions were soon abandoned. But it did follow through on the wildly popular “Beveridge Plan,” an “all in” system of social insurance that provided against all the major economic risks of a working family—illness, old age, unemployment, disablement, and childbirth—on the democratic principle of equal pay-in rates and equal benefit levels for all. France and Germany did much the same. Indeed, all of Europe did much the same, bringing to fruition decades of progressive reform ideas. And while Third World countries could seldom afford to match Europe’s generous social safety nets, they could, and did, outdo Europe in their embrace of national economic planning.5 All these countries presented themselves as having “mixed economies,” wending a “third way” between laissez-faire and Soviet-style command and control. Americans, too, might speak of having a mixed economy. This was especially the claim of America’s left-liberal intellectuals who, before the war, had typically advocated some version of socialism, corporatism, or technocratic planning, but who, after the war, were content with the idea of a mixed economy, and expressed satisfaction that the United States, too, had developed one. But this idea, and this satisfaction, said more about how much American intellectuals had changed—how they had tempered their earlier enthusiasm for social transformation—than about how much the U.S. economy had changed. As evidence that the United States was no longer strictly capitalist, they might point to the “partial planning” of the TVA, or the institutionalization of Keynesian fiscal policy, or federal regulatory agencies, or the increasing importance of the scientific estate and the “collectivizing” influence of the mass media. But no European would have been fooled. The United States had no central planning agency, no nationalized industry, and no labor party or labor-management corporatism, to compare to Europe. As put by Alan Brinkley, a leading scholar of the New Deal, “The New Deal . . . did not, the complaints of conservative critics notwithstanding, transform American capitalism in any genuinely profound way; except for relatively limited reforms in labor relations and the securities markets, corporate power remained nearly as free from government regulation or control in 1945 as it had been in 1933.”6

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Indeed, even talk of a Keynesian revolution in American government is overblown. Harold Smith’s testimony on behalf of the Full Employment Bill, mentioned earlier, was not sufficient to sway Congress. No more suasive was testimony on the impressive wartime track record of the American Keynesians, under whose guidance roughly half the nation’s total production had been shifted to the war effort, with limited inflation, and with the aid of fewer direct controls than in the much less successful mobilization for World War I.7 Far from representing the triumph of Keynesianism, as often portrayed, the Employment Act of 1946, which replaced the Full Employment Bill, gutted virtually everything the American Keynesians had asked for, to the point where “the Bureau of the Budget staff seriously considered advising president Truman to exercise the veto.”8 Their most ambitious proposal was for a Fiscal Authority, or “Fisc,” that would have discretionary authority over federal fiscal policy, similar to the way the Federal Reserve or “Fed,” had discretionary authority over monetary policy. Such a Fisc was to have, within limits, discretion over taxation rates, and would maintain a shelf of preprogrammed public works projects that, for the purpose of demand management, would be selected and launched at the Fisc economists’ discretion. Instead, all the Keynesians got was something they didn’t even ask for: a Council of Economic Advisers—a threeperson commission with no operational powers, which was a bone thrown to them by an opponent of the bill.9 At the same time, the U.S. social safety net remained spotty, with no national health coverage and irregular social security and unemployment coverage. The United States alone among nations emerged from the war with an unconditional commitment to the free enterprise system, at least within the civilian economy, supplemented only by a weak “compensatory” fiscalism and a threadbare social safety net, as well as by the traditional activities of the nonprofit sector.

The Puzzle of America’s Continued Divergence That Europeans should have welcomed a strong governmental presence in their national economies after the war was an overdetermined development. For one thing, Europe’s economies, including their basic infrastructure, had been shattered by the war, and mass starvation was a real possibility. The need for quick, coordinated relief and rebuilding was obvious, and with private capital markets in shambles, only governments had the wherewithal to undertake the job. Second, in Germany, as well as in France, Italy, and in other nations that had accommodated themselves to German

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occupation or domination, business leadership was discredited because of its cooperation with the Nazis. Third, government officials and political parties that had accommodated themselves to German rule—typically those that were right-leaning—were disgraced, while parties and persons on the left, which had traditionally favored government intervention in the economy and were most likely to have resisted German occupation, were swept into office after the war. Even the Communist Party enjoyed great prestige after the war, for its resistance to fascism had been as fierce and courageous as anyone’s, and the performance of the Red Army gave evidence of the remarkable industrial advance the Soviet Union had been able to make under Stalin’s five-year plans. Fourth, the sense of shared wartime sacrifice, and the tangible debt that all men of power and influence owed to the ordinary man and woman, made commitment to a strong social welfare state a political given. Where political parties were slow to register this mood— as happened with the Conservative Party in Britain—even the prestige of military victory could not save them from replacement. Finally, in a considerable historical irony, the United States was prepared to pour vast sums of money into Europe to build it as a bulwark against communist expansion; however, not only did U.S. officials choose to channel these funds through Europe’s central governments, but they also would not release a penny to a government until it had come up with a reconstruction “plan.”10 These factors were either nonexistent, or at least weaker, in the United States. But in the United States there existed other factors, some shared with Europe, others unique to it, that could have been expected to yield similar results. Indeed, a quick inventory of them shows just how astonishing the United States’ postwar embrace of free enterprise really was. First, it will not do to explain America’s distinctiveness by appeal to its supposed timeless market-capitalist consensus. For one, Great Britain, the original home of Manchester economics, had been no less influenced by free-market ideology than the United States, yet this did not prevent its own experiment with democratic socialism after the war. What is more, even though the United States early acquired a reputation for unbuttoned market capitalism, this does not mean the reality always matched the image, especially at the local level, nor does it mean that American practices lacked native critics. There is no period in U.S. history, not even in the decades immediately following the Civil War—America’s “Gilded Age”— in which a consensus reigned regarding the desirability of unadulterated freedom of contract under common law.11 At the very least, as we saw in Chapter 2, World War II was preceded by six decades of steadily increasing

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criticism from the intellectual classes, as well as from agrarians, urban workers, and Protestant evangelicals, among others, regarding the efficiency and humanity of “laissez-faire.” The absence in these years of a stronger federal presence in the economy was not the result of intellectual consensus, but of inherited governance structures—the “state of courts and parties”— whose operators had a vested interest in staving off the development of an administrative state. Other things being equal, one would have expected, at the very least, a comparable degree of intellectual dissent after the war. A second reason—really the greatest reason—to be surprised by America’s postwar embrace of market capitalism is that, little more than a decade before, its market system had collapsed. Nowhere did the Depression hit harder or the reputation of business sink lower. It completely wiped out the intellectual respectability of laissez-faire, and it did so across all classes, including even most of the business class. Third, the magnitude of the crisis put into play the existing governance structures, creating an opportunity, which indeed Roosevelt grasped, for a major constitutional reconfiguration, including executive and administrative augmentation. In other words, the dammed-up reservoir of Progressive era plans for reordering economy-state relations found many, if not all the traditional institutional obstacles to reform tumbling before them. And initial signs were that these relations would be fundamentally and permanently altered. Fourth, those areas of the economy in which recovery was most marked during the New Deal were precisely those in which central governmental control had been most strongly asserted and placed in the hands of economic and technical experts. Specifically, this was the agricultural sector, under the AAA, and the Tennessee River watershed, under the TVA, as will be discussed below. These programs became international models. One would expect their instrumentalities to have been given further application at home. Fifth, although U.S. business leaders, unlike their European counterparts, managed to redeem themselves in the eyes of the public through their wartime service, this could hardly be described as a redemption of the free-market system, for this system had not been used.12 In the end, to prosecute the war, Roosevelt was forced to place public controls on the economy that were only marginally less total than those Wilson had resorted to. It was thus as members of a government-business partnership that business leaders redeemed themselves. All the more reason to have expected the ideal of a cooperative commonwealth to have triumphed over free enterprise.

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Sixth, there was the precedent of World War I. That war had been followed by strong intellectual enthusiasm for a whole spectrum of schemes for government-business partnership and professional-technical direction of the economy, despite what is now recognized as a fairly mediocre wartime economic performance. World War II mobilization was a smashing success in comparison, and the input of economic experts repeatedly saved it at points where it began to stumble. One would reasonably expect that the same enthusiasm for government planning and control of the economy would have followed it as well. This is in fact what contemporaries expected going into the war, and for conservatives, it had been a leading reason to keep the United States out of it. “We cannot regiment America (and how!) through another war and ever get individual liberty and freedom of action back again,” wrote Senator Arthur Vandenberg to a friend in 1939. “We shall be ourselves a totalitarian state, to all intents and purposes, within ten minutes after we enter this war as a protest against totalitarian states. And we shall remain one forever.”13 In the event, the war did bequeath the United States a mighty “militaryindustrial complex”—a government-business-science partnership that is largely insulated from public scrutiny and pressure—state autonomy at its best, and worst. But as for the civilian economy, once again, as after World War I, economic controls were rapidly and completely dismantled and government planning boards abolished, but this time without generating any of the lingering nostalgia that followed their demise after the First World War I.14 Why, despite all these conditions that could have been expected to reinforce expert-progressive predilections and have set the United States on a European-type trajectory after the war, did the United States largely revert to free enterprise practice and mentality? Perhaps the language used by Vandenberg offers a clue.

The Looming Shadow of Totalitarianism “On March 5, 1933, one day after Roosevelt entered the White House,” notes William Leuchtenburg, “the German Reichstag placed absolute power in the hands of Adolf Hitler . . . All of the New Deal was to be carried on under the shadow of the menace of fascism.”15 Leuchtenburg is not alone among historians in recognizing the silent but looming presence of the European dictators in the American debate over economic reform in the 1930s, for their presence can hardly be missed. From this side of the Atlantic, economic dictatorship was the most salient European response to

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the economic crisis that swept the globe in 1929, the response that captured the attention of popular media and academia alike. And what was so disturbing about it—as disturbing as the fact that dictators had been able to grab power in the first place—was that dictatorship evidently worked. Stalin’s Russia, which had earlier cut its ties with the international trading system, had avoided the economic contagion altogether. In Italy, Mussolini muscled the economy back into gear with a mix of cartelization and central control, while preserving the forms of private ownership. Hitler, too, was having economic success, putting German industry on what gradually revealed itself to be a war footing. In light of these examples, it was a persistent American opinion, well into World War II, that totalitarian economies, for all the unsavory means they employed, were economically more efficient than undirected, capitalistic ones.16 If Americans in this period ultimately turned away from major economic reform, it was not because they believed that free enterprise was the more efficient, more productive, more stable economic system. Rather, their reasons were political. Europeans, too, were exposed to the totalitarianism concept. But to the extent that it figured in European thinking, it had an influence opposite to that in the United States. In the prevailing European view—a view based on firsthand experience—totalitarianism was born of dictators able to seize and consolidate power because of public discontent over the injustice and periodic ruin caused by economic laissez-faire. All the more reason, then, to temper market capitalism with the security and stability of a generous welfare state and a mixed economy. Americans, in contrast, were inclined to believe that totalitarianism might arise from a creeping advance of economic controls themselves. This reasoning found its most influential expression in Friedrich Hayek’s The Road to Serfdom (1944). Hayek’s argument, which was more colorful than original, was that sustaining a rollback of freedom in economic affairs would require destroying political and personal freedom as well. Economic freedom was thus the foundation of political and personal freedom, while the economic controls with which the West was experimenting were laying the foundation of a new despotism and would lead the West into a new feudalism. This was not, it will be noted, chiefly an economic argument against state intervention in the economy (although Hayek had an economic argument as well). It was a political argument.17 The New Deal has long been viewed, by its detractors no less than by its admirers, as the culmination of American progressivism.18 Indeed, in many respects it started out this way. But the New Deal ended in a break with progressivism—especially with its expert-progressive, New National-

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ist strand. The aspiration to both humanize and optimize industrial capitalism through structural changes, legal and administrative—to reorder economic life in such a way as to bring out man’s cooperative spirit rather than his competitive spirit—was abandoned. As Alan Brinkley aptly puts it, in the title of his book-length reevaluation, the New Deal did not, in this respect, represent the culmination of a half-century of progressive thought and activism, but The End of Reform.19

The Crisis In late October 1929, the New York Stock Exchange began a stuttering, then steep, slide. By mid-November, it had lost 40 percent of its value. Many, including President Hoover, believed that business fundamentals were sound and the troubles would soon pass. But business was not finding a market for its products. Layoffs ensued, further decreasing consumer purchasing power, producing a vicious, downward spiral. Before the crash, just over 3 percent of the labor force had been unemployed. By 1933, when the Depression had reached its lowest point, the figure reached almost 25 percent. The gross domestic product (GDP) dropped about one third in the same period.20 What was so mystifying about it all was the strange disjuncture between the nation’s productive capacity and its ability to put it to use. Brand new factories stood idle while workers stood outside the gates begging for work. Farmers turned in bumper crops while food lines formed and farm prices went through the floor. Say’s Law— that “production creates its own purchasing power”—turned out to be “bunk.”21 As the months turned into years with still no recovery in sight, even such a hard-boiled economist as Frank Knight, godfather of the Chicago School of free-market economics, was throwing in the towel. For the first two years or so after the economic crisis of 1929, I was one of the large group of students of economics who condemned the idea that this was fundamentally different from other depressions. But I have become convinced that I was in error, that we are actually in the course of one of the world’s great economic and political revolutions. Even if we see some business revival, it will be limited and temporary. The nineteenth-century liberal system is played out, and the world of West-European civilization, based on political “democracy” and economic “freedom,” will go through a drastic revaluation of its “modern” ideas and values.22

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It might be imagined that the sudden delegitimation of free-market capitalism would be viewed by the long-denied progressives as sweet vindication and a golden opportunity. Yet this was not the moment progressives had been waiting for. Roosevelt and the cadre of progressives he brought to power with him had at their disposal six decades worth of thought and experience—American as well as European—addressing the excesses and insufficiencies of market capitalism. They had none to deal with its wholesale breakdown.23 Yet this was the moment that was handed them. Their attempt to cope with it meant expanding the received progressive agenda. To the traditional reform goals of humanizing and optimizing industrial capitalism were added responsibilities for emergency economic relief and for recovery. Meeting these goals would be a daunting task. As Alan Brinkley notes: The Great Depression, which would have been a difficult challenge for any state, was doubly intimidating in the United States because Americans had as yet made few decisions about what their government should do and how it should do it. As a result, the New Deal was not only an effort to deal with the particular problems of the 1930s; it was also a process of building government institutions where none existed, of choosing among various prescriptions for an expanded American state.24 These very same circumstances also made the moment exceptionally propitious for institutionalizing a progressive governance agenda. The “state of courts and parties” had long stood in the way of progressive efforts to build a European-style administrative state. The courts would continue to cause trouble for Roosevelt into his second term. But as far as Congress and the parties were concerned, Roosevelt was given a free hand to address the crisis with whatever governance structures or state-economy reorderings he might choose. From the previous Congress, he inherited a several-year window of opportunity to reorganize the offices and agencies of the Executive branch however he saw fit. From the Congress that came in with him, he received the same kind of latitude with respect to recovery programs. The Agricultural Adjustment Act and the National Industrial Recovery Act (NIRA) were legal shells that, as William Barber puts it, “provided maximum scope for administrative discretion in the development of policies and procedures.”25 The agriculture act further granted the president wide discretion over monetary policy (something Roosevelt hadn’t even asked for), while the NIRA further granted him wide discretion over

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a $3.3 billion fund for public works projects ($2.3 billion more than he had asked for). The crisis atmosphere also gave him an excuse, when staffing his agencies, to fend off pleas from the party for patronage positions for loyal, and economically distressed, party regulars. The only serious political constraint on his freedom of action was the need to maintain a viable electoral coalition. But in the uncertainty of the times, this, too, was less of a constraint than usual. Roosevelt was a man with sizeable political skills, and unprecedented media savvy, operating in a time of crisis where electoral allegiances and constellations of interests were in tremendous flux. For this reason, Roosevelt often displayed a willingness to buck powerful political and economic interest groups to pursue one or another policy advocated by his experts and advisers. In short, the prospects for building a new American state had never been better. Nor would they ever be better. As Barry Karl notes, “the crisis atmosphere that in March 1933 fueled public enthusiasm for reform is not likely to recur, given the range of supportive programs that now protect everything from bank deposits to mortgages and supply unemployment benefits and welfare aid.”26 The very success of the New Deal in laying down these “cushions” against economic collapse has made the New Deal the chief obstacle to further economic reforms. The choice of state structures and state-economy relations would thus be momentous, foreclosing most other options, down to the present day. The New Deal era is the period in which the modern American state pattern crystallized, and the basic capacities for economic planning and administration were set. Yet, despite the fair prospects for progressive reform, what went in at the front end of the New Deal was not what came out at the back end.

Governance Projects of the New Deal It has often been said of Roosevelt—and not without reason—that he employed Hamiltonian means to Jeffersonian ends. However, there are limits to this formula. With respect to means, Roosevelt shared Hamilton’s predilection for executive administration, but departed from him in looking to experts, rather than social elites, to staff his administration. With respect to ends, Roosevelt undeniably identified with Jefferson in his opposition to the strangulation of the individual by monied power. Yet he was under no illusions that Jefferson’s world of “equal rights and opportunities” could be revived, even with the aid of executive administration. In the week before the 1932 election, he laid out his reasoning. The fron-

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tier has closed; the nation’s industrial plant has been built, perhaps “overbuilt.” Whole sectors of the economy have been “preempted altogether by the great corporations, and even in the fields which still have no great concerns, the small man starts under a handicap.” “[E]quality of opportunity as we have known it no longer exists,” and it was futile to try to “turn the clock back.” Roosevelt would not be relaunching Wilson’s New Freedom.27 But if government could not secure equality of opportunity, it was nevertheless possible, in a land of plenty, for the government to safeguard for all the opportunity to make a decent living. Government, in cooperation with business, “owes to everyone an avenue to possess himself of a portion of that plenty sufficient for his needs, through his own work.” Furthermore, government and business together owed every man “the safety of his savings,” which meant that government must get into the business of economic stabilization. These two “rights,” he declared, should be enshrined in a new “economic declaration of rights, an economic constitutional order” that will lay the foundation for “a more permanently safe order of things.”28 Unlike traditional constitutional rights, these would be programmatic rights, requiring positive administrative action. (This made them “Hamiltonian.”) But to overcome Jeffersonian suspicions about the incompatibility of individual liberty and state power, Roosevelt presented each as an elaboration under new economic circumstances of familiar principles from the Declaration of Independence, with the first “right” presented as an elaboration of the “right to life” and the second as an elaboration of the “right to property.” (This made them “Jeffersonian,” although they were not ends that Jefferson himself would have owned.) Economic security, a “more permanently safe order of things”: whenever Roosevelt reached for an overarching theme to encapsulate his economic agenda—from his 1932 Commonwealth Club address to his final economic offensive, the 1945 Full Employment Bill—this was the language that he grasped. It was a formula that played up the compatibility of the new administrative machinery that was being requested with the Democratic Party’s traditional predilection for economic individualism.29 Rhetorically subsumed under this overarching governance goal were a number of more specific governance goals. Arguably, these goals received their seat at the table even before the dinner party received its “security” theme. But economic security was a reasonable gloss of their common tendency. These specific goals were economic relief, recovery, and reform, the triple mandate of the New Deal.

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Relief Until the Great Depression, the provision of public relief to the economically distressed had been a strictly local affair. Yet such was the depth of the Depression, that these sources were rapidly overwhelmed. A few governors—Franklin D. Roosevelt of New York was the first—began to funnel state resources to local relief agencies to bolster their work. But this, too, fell far short of the need. Perhaps nothing did more to discredit Hoover’s “associational” approach to governance than his insistence that, in the way of relief, the federal government should do no more than help coordinate the existing relief efforts of cities, states, and private foundations. Roosevelt had no such scruples, and upon assuming office, he quickly put into place a program of federal relief that was both highly innovative and highly conservative. Like many progressives, Roosevelt worried about the effects on moral character of a European-style dole. His solution, used in full cognizance of its greater expense, was to launch a massive public works program. “Give a man a dole, and you save his body and destroy his spirit,” said Harry Hopkins, the principal administrator of these programs. “Give him a job . . . and you save both the body and the spirit. It saves his skill. It gives him a chance to do something socially useful.”30 As the original “workfare,” it represented the national application of a familiar municipal response to hard times.31 Through programs such as the CCC, the Civil Works Administration (CWA), and, beginning in 1935, the much larger Works Progress Administration (WPA), the Roosevelt administration funneled billions of dollars to millions of the unemployed. Despite their scale, these programs never found space for all who were eligible for them, yet they provided a living wage for millions who otherwise had none. These public works programs found their complement in the Social Security Act of 1935. There were few areas in which the Americans lagged further behind their European peers than in the area of social insurance. A few dramatic gestures had been made by a few employers in providing such insurance, but these were not representative. “On the eve of the Depression, not more than 1 in 5 wage earners was covered by an employer’s group life insurance plan, 1 in 8 by a company retirement pension program, not more than 1 in 20 by group health or accident insurance, and not more than 1 in 100 by unemployment insurance benefits of any sort.”32 Public provision of social insurance was far more meager still. On

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the national level, it was nonexistent. On the state level, it was nearly nonexistent, and had made not a single advance in the 1920s. The Social Security Act helped close the gap. Best known today for its provision of old-age pensions, the act also provided for unemployment insurance (through the states) and established assistance for the disabled, and for impoverished dependent children (the part of the act that later took on larger dimensions as Aid to Families with Dependent Children, now called Temporary Assistance for Needy Families). With its passage, the outlines of a comprehensive New Deal governance project for the problem of income failure came into view. There would be direct payments for the “unemployables” (people whom, it was believed, could not, or should not, work, such as the aged, the infirm, and impoverished dependent children); brief direct payments and then public works for the out-of-work “employables”; and finally, through projects such as the TVA and rural electrification, the planned development of national resources to create the conditions for the return of the unemployed to the dignity of private employment. Of the tools for coping with unemployment, one tool noteworthy for its absence, at least as a consciously formulated strategy, was Keynesian deficit spending, whereby the government compensates for the failure of the private sector to generate the investment necessary to sustain full employment. The one unequivocal statement of economic policy that Roosevelt made, in an election campaign otherwise marked by studied ambiguity, was in Pittsburgh in October 1932, when he declared “a complete and honest balancing of the Federal budget” to be “the one sound foundation of permanent economic recovery.” This was a piece of fiscal orthodoxy that scored points against Hoover, who had allowed the government to run a deficit in his final years. Eventually, New Dealers would come to rue the promise. But in the early years, it elicited no objections from Roosevelt’s advisers, who were looking for structural solutions to the economic problem. “None of us, then,” Moley later observed, “was a member of the ‘borrow and spend’ school.”33 Roosevelt would never succeed in balancing the budget, but throughout his first administration, and well into his second, he never stopped trying. Roosevelt’s relief efforts in this period were thus attributable to nothing more sophisticated than old-fashioned humanitarianism, and Roosevelt’s haste to dismantle some of them in 1934 can be attributed in part to his fear that their expense might well be inconsistent with “permanent economic recovery.” As with so many New Deal governance projects, the central tool in this one, the WPA, was gutted by an anti-New Deal Congress in 1943. The

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stated reason, mixed in among obligatory denunciations of “socialism,” was that it put the government into unfair competition with private capital, which, properly translated, meant that conservatives, especially in the South, were unhappy that WPA projects were employing African Americans and in general driving up bottom wage levels. But the idea also soon lost favor among liberals, who, in the antitotalitarian age, saw it as too paternalistic. The idea of “workfare” as a federal unemployment tool was revived by President Clinton’s administration in his 1992 campaign, but to this day, it remains itself largely unemployed.

Recovery and Reform In terms of state-economy relations, New Deal relief efforts were merely “compensatory”—the Band-Aids of the “ambulance state.” Direct intervention in the economy flowed from the other New Deal mandates— recovery and reform. One set of reforms addressed the wage contract. The right to unionize might be included in this category, because it altered the conditions under which the wage contract was struck.34 More central, however, was “factory legislation,” such as occupational safety regulation, bans on child labor, minimum wage and maximum hour laws, and other such attempts to regulate the wage contract itself. In the United States, such legislation was most strongly associated with the Social Gospel and social work movements which wished to “humanize” industry. Veterans of these movements were carried into the administration by Roosevelt, where they drafted appropriate legislation—first as add-ons to the omnibus NIRA, then, after the scotching of the NIRA by the Supreme Court, as separate bills.35 These were laws that by and large could be administered by the courts— once the courts accepted their constitutionality—and therefore did not require significant augmentations of executive administrative capacity. Not coincidentally, they have proved among the more enduring of New Deal reforms. Other New Deal interventions on behalf of recovery and reform, however, required bureaucratic administration, and this makes them our central concern. A key refrain of the New Deal was the need for better “balance” in the economy, and balancing was the kind of thing that required on-going government intervention. So what was it that needed to be balanced? Use of the term was highly variable, but it usually boiled down to one of two things. First, the econ-

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omy needed a better balance between production and consumption. Depression gripped the country because Americans as consumers lacked the means to purchase what they made as producers—a situation that could only be corrected by a downward shift in purchasing power. This, New Dealers believed, was the key to ending the Depression and preventing future depressions. The means proposed to effect this shift would change over time, but these changes in strategy should not obscure the deeper unity of analysis that runs through the New Deal like a red thread, linking together, through a common rationale, proposals for national planning, corporatism, trustbusting, and countercyclical government spending, as well as those for progressive taxation, minimum-wage laws, unemployment insurance, old age pensions, and public works. Many of these proposals could claim a long progressive pedigree, originally having been promoted on grounds of efficiency, equality, or morality. Without being asked to shed these original virtues, they now found themselves clothed in a new economic rationale of increasing mass purchasing power by shifting national income from the savers at the top to the spenders at the bottom. Progressive reform proposals were in this manner refitted as recovery proposals and thrown into the breach.36 Second, as a more long term proposition, the economy needed a more balanced development of “national resources,” including natural resources, human resources, and geographic regions. This was partly economic promotionalism—a prescription for renewed and increased economic growth. But it also comprised traditional progressive concerns for national character, such as New Deal efforts to balance and blend the urban and rural, to foster a citizenry neither proletarian nor peasant. What were the governance projects proposed to accomplish these rebalancings? One governance project was inspired by the notion of a “cooperative commonwealth,” and was dedicated to securing economic stability and social equity through structural intervention in the price-production mechanism. This idea found two different expressions in the New Deal. In one variant, best expressed in the AAA, it gave government experts effective authority to set national production levels for an industry. It might thus be considered an arm of a nascent overhead planning state. In its other variant, best expressed in the NRA, production and price policy was largely set by representatives of the regulated industry itself. It thus inclined toward what might be called a corporatist state, with signs that it might evolve into something akin to the German “social market” system, in which, with gov-

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ernment oversight, business and worker representatives determine the broad outlines of industrial policy within a given industry. A second major governance project, focusing on planned government investment, gave rise to a nascent development state. It, too, came in two variants. In its strong variant, best expressed in the early TVA, it gave government experts discretion to shape the industrial and social landscape of a region through large-scale direct investment. (Its closest European analogue might be the French Commissariat Général du Plan.) In its soft variant, best expressed in the work of the National Resources Planning Board, experts, functioning in a strictly advisory capacity, developed long-range plans for natural and human resource development, with projects to be funded by Congress. (This version of planning exists in almost every nation but the United States.) Third, a competition-inducing state, with historical links to the New Freedom, saw a brief moment of favor in the late 1930s as the previous two governance projects collapsed. (Reflecting the unique strength of antimonopoly sentiment in the United States, it had no international equivalent.) Fourth, a compensatory fiscal state, or “Keynesian state,” which also emerged in the late 1930s, showed more staying power, although it was quickly taken in a conservative direction, from “social Keynesianism” to “military Keynesianism.”37 It will be noted that these New Deal governance projects, listed roughly in the order of their inception, trace an arc from greatest to least intervention in the market. The New Deal began with a developmental and cooperative vision—a vision of managed capitalism—and ended with a compensatory vision that leaves market relations essentially undisturbed. The chapters that follow trace the fate of each of these governance projects, and in each case, I will emphasize the role of antitotalitarian reaction in deciding their fate.

4 The Quest for a Cooperative Commonwealth: NRA and AAA

In the first phase of the New Deal, the NRA (launched in June 1933) and the AAA (launched one month earlier) were the core of the administration’s recovery effort. In the eyes of Roosevelt and most other New Dealers, the AAA was actually the more important recovery program. But the NRA was certainly the biggest, and the one with the most potential to fundamentally restructure state-economy relations.

Laying the Foundations of a Corporatist State: The NRA The internal debate over the organization and orientation of the NRA reflected the wider debate swirling around the question of how to revive business activity. The old warriors of the New Freedom and the New Nationalism, who had once jousted over issues of opportunity and efficiency, now sent out their intellectual progeny, equipped with the same old weapons, to joust over the issue of recovery. The entire debate over recovery was thus tangled up with an ongoing debate over the good society. Those with a Wilson-Brandeis-Frankfurter pedigree wished to use the NRA to enforce competition and thereby drive down the monopolistic prices that they believed were rampant and cutting into purchasing power. Those with a Henry Carter Adams, Theodore Roosevelt, Herbert Croly pedigree (or a Simon Patten, Thorstein Veblen, pedigree—or a Henry Gantt, Social Taylorite pedigree—or a Bernard Baruch, World War I-mobilization pedigree) wished to use the NRA to inaugurate some form of a “cooperative commonwealth” so as to rebalance production and consumption while reaping the benefits of industrial scale and more equitably distributing its product. For the former group, the economy faltered because market competition had not truly been in use. For the latter group, the economy faltered precisely because market competition had been in use, producing 98

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its normal chaos of speculative overbuilding, engrossment, and imbalance. Both groups envisioned much greater government intervention in the economy than had ever before been practiced in peacetime. In the early years of the New Deal, with scandal and indecision hovering about the business leaders who had symbolized the market ideal, it was the latter group that held the high ground. The turn they advocated, from competition to “cooperation,” “coordination,” “concentration,” and “control,” was eased by the sense among many that the economy had “matured.” One shouldn’t expect rapid growth now that the frontier had closed, population growth had slowed, and, it appeared, technological breakthroughs had come to an end. Slow growth meant redoubling the engineering emphasis on eliminating waste in resource use—waste that all agreed was endemic to market competition. It meant the greater societal demand for distributing the existing industrial output on an agreed social scale of values in an equitable manner—a job better done by administration than by markets. And it meant that concerns about institutionalizing obsolescence technology—one of the recognized dangers of dissolving market competition—were moot. Alvin Hansen would give this view its most technical and famous exposition in his “secular stagnation” thesis. But the general argument went back all the way to Turner’s thesis (1890) on the closing of the frontier.1 Roosevelt, with Adolf Berle’s assistance, presented his own version of the mature economy thesis in his Commonwealth Club address. “Our last frontier has long since been reached, and there is practically no more free land.” Economic nationalism has closed foreign markets; domestic markets have been preempted by the great corporations; the nation’s physical plant has been built; and the structure of U.S. industry is headed toward oligopoly. Clearly, all this calls for a reappraisal of values. A mere builder of more industrial plants, a creator of more railroad systems, an organizer of more corporations is as likely to be a danger as a help. The day of the great promoter or the financial Titan, to whom we granted anything if only he would build or develop, is over. Our task now is not discovery or exploitation of natural resources, or necessarily producing more goods. It is the soberer, less dramatic business of administering resources and plants already in hand, of seeking to reestablish foreign markets for our surplus production, of meeting the problem of underconsumption, of adjusting production to consumption, of distributing wealth and products more equitably, of adapting existing economic

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organizations to the service of the people. The day of enlightened administration has come.2 The prediction of stagnant growth was hardly a sine qua non of the planning mindset. In fact, the administration’s strongest advocates of national planning—namely, Rexford Tugwell, Gardiner Means, and Mordecai Ezekiel—never bought the secular stagnation thesis. They actually agreed with Hoover that scientific invention was the new “frontier,” and they could point out besides that European nations, which had hardly been stagnant in recent centuries, never had a frontier in the first place. For them, taming the business cycle and forcing a high volume, low price production strategy were reason enough to support national planning. But for those such as Roosevelt who accepted the mature economy thesis, the need for structural reform was all the more evident. With industry already overbuilt, “the orthodox view that there is this flood of money waiting for investment” once business confidence returns, made no sense. “The Lord only knows where that money would go, I don’t.”3 As these variations suggest, the cooperativists were not monolithic, their common critique of competitive capitalism notwithstanding. It is noteworthy that no New Dealer, not even Tugwell, pushed for government ownership of industry (although one could certainly find advocates of this in circles outside of the New Deal). This is the truth in the notion of there being a “capitalist consensus” (more precisely, a private property consensus) within the New Deal. But within this consensus, the advocates of a cooperative commonwealth prepared a wide spectrum of national planning proposals. On the right side of the spectrum were members of the business community, for whom cooperation meant “business self-government.” Generalizing for industry as a whole what Henry Carter Adams had once said of the railroads, businessmen argued that the real trouble was “excessive competition” and “cutthroat pricing,” which undermined business confidence and reduced investment. Among the proposed remedies with broadest support were the plans put forward by Gerard Swope, president of General Electric, and by the U.S. Chamber of Commerce. Each conceded that business had a collective responsibility for the public welfare, that economic stability must take precedence over the maximization of profits, and that there was need for a planned adjustment of production to efficient demand. Each proposed meeting these responsibilities by amending the antitrust laws so as to allow industry-wide coordination of production and pricing. Business would take the initiative, making use of its trade associa-

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tions to set industrial policy, with government oversight. It was essentially a proposal to ratchet up Hooverite associationalism into governmentsanctioned business cartelization. Others, doubting that the interests of business so closely corresponded with those of the public, looked to give government a greater say in setting industrial policy. Toward the middle of the spectrum were those who, recollecting the work of the War Industries Board, believed that government and business representatives might partner in setting price and production policy. This was where Roosevelt’s own inclinations lay, and is what he had suggested in his Commonwealth Club address. Further to the left were those who wished to expand participation to include labor and consumer groups, perhaps organizing all interested groups into a National Industrial Council with policy-making authority. On the far end of the spectrum were those of a Veblenian and Taylorite persuasion, such as Tugwell, George Soule, Stuart Chase, Charles Beard, and Dewey, who liked the idea of a national economic council, but wished to see it stocked with institutionalist economists, engineers, and other industrial experts. All these approaches to recovery—antitrust, business associationalism, stake-holder corporatism, and overhead planning—competed in the drafting of the NIRA. Roosevelt wanted to hold everyone together, still hoping at this stage to run what today would be called a national unity government. Under pressure to produce a bill, he asked leaders of the various factions to lock themselves in a room and work it out. Accordingly the bill that emerged had something for everyone. It’s stated purpose, on which all could agree, was “to promote cooperative action, eliminate unfair practices, increase purchasing power, expand production, reduce unemployment, and conserve natural resources.”4 With respect to governance tools, business got the heart of its plan: business trade associations would be allowed to submit for government approval “codes of fair competition” that would establish industry standards, including the elimination of “chiseling” (also known as competitive pricing) without fear of antitrust prosecution. For labor, there was the promise that the codes would establish fair maximum hours, minimum wages, and workplace health and safety standards. More significantly, labor was granted the right to bargain collectively with employers through representatives of their own choosing. For national planners like Tugwell, hope came from the fact that, once approved, each code would be administered by a “code authority.” The presence of government representatives on the code authorities, and the subordination of the whole apparatus to an NRA administrator answering directly to the

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president, held out hope that the program might be made into an instrument of national planning for the public interest by experts. Even some of the antimonopolists signed on, cozened into believing that the NRA would stiffen competition by eliminating practices such as below-cost pricing and price discrimination, the Trojan horses of monopolistic conquest. When it got down to brass tacks, however, those who wanted a strong government presence in industrial planning confronted the problem that they had little in the way of actionable plans on hand, and that the government lacked the personnel to administer such plans had they existed.5 Under these circumstances, business cooperation would be essential. It was thus probably inevitable that, in practice, the NRA tilted toward business self-government. Nor was this contrary to Roosevelt’s wishes, convinced as he was that “industry would not violate a great public trust.”6 Roosevelt was a veteran of the World War I mobilization, and he tended to view the whole venture in these terms. The New Deal was declaring war on the Depression. Employers who pledged themselves to the NRA program were entitled to display Blue Eagle emblems on their wares, while those who refused were branded unpatriotic. The public, too, was asked to mobilize and every family to increase its expenditures by 10 percent. The same analogy determined the staffing of the NRA. For the office of chief administrator, Roosevelt appointed Hugh Johnson, a brigadiergeneral-turned-businessman and a protégé of Bernard Baruch, WIB czar. Johnson in turn appointed a raft of business and military men as his deputies, who were charged with approving industry codes and with appointing government representatives to sit with business representatives on the code authorities—“government representatives” who were themselves usually drawn from the ranks of business. The result was that the industry codes, as one skeptical observer put it, represented a “bargain between business leaders on the one hand and businessmen in the guise of government officials on the other.”7 Less than 10 percent of code authorities ever had labor representatives. Less than 2 percent had consumer representatives.8 And the dominant tendency of their codes, carried out through myriad arcane strategies, was to set price floors and restrict production. Industry did violate the public trust, turning the codes and code authorities into instruments of cartelization.

NRA Fallout The universal judgment, both of contemporaries and subsequent analysts, has been that the NRA was a failure as a recovery program. It had some

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success in spreading work, mainly through its maximum-hour provisions.9 But it produced no increase in real wages, and scant increases in profits. Many have argued that it actually retarded the recovery.10 Among the most astute observers were some who recognized that the program would do little for recovery, but who nevertheless supported it for the promise it held of stabilizing the economic order once recovery had been achieved.11 In terms of recovery, about all that can be said for the NRA is that, by trying something bold, with confidence and bravura, its authors helped to break the psychological paralysis and hopelessness gripping the country in the dark days of 1933. But this is hardly a credit to the program’s specifics. The failure of the NRA to stimulate recovery had become clear to contemporaries by mid-1934, and even earlier. But for almost no one did the failure carry the lesson of the unworkability of organized intervention in the economy. Rather, failure was attributed to the bastard quality of the NRA. Each of the factions that contributed to the bill entered 1934 more convinced than ever of the rightness of their original prescription and the futility or danger of compromise with other approaches. A sizeable minority of businessmen began to feel they would be better off getting rid of the program, and to help make their case, they insinuated that the whole thing “had been imported from Moscow, Rome, or Berlin.”12 The rest, however, continued to support the program, but they pleaded with Johnson and the president that business be allowed to practice true selfgovernment, without the need to bargain with the government or other interest groups over the terms of the industrial codes, or to grant labor the right to unionize. Outside business circles, the prevailing consensus was just the opposite: that business control over the program must be weakened and the hand of government strengthened. But again, opinion differed over the direction this intervention should take. The populist streak in the American public was enraged when it began to appear that the NRA was operating as a cover for monopoly practices. The biggest complaint was that small business was being squeezed. In actuality, small business grievances centered almost entirely on the NRA’s minimum-wage provisions and its elimination of “sweatshops,” rather than on monopoly per se.13 Nevertheless, partisans of the New Freedom in the House and Senate hoped to use the outcry as an occasion to replace the NRA with some good old-fashioned trust-busting. Neo-Brandeisians within the administration hoped to catch this populist breeze as well, but the tack they took was somewhat different, and

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reflected an important evolution in the old Wilson-Brandeis program. Wilson and Brandeis, like the Populists, had conceived of their campaign against trusts as a moral crusade for the equalization of opportunity. In the language of Brandeis, “bigness” itself was bad, even on the odd occasion when it might be economically efficient, because it choked off experimentation, unbalanced the competitive field, drained off talent from the hinterland, invited political corruption, and overawed the individual and denied him the opportunity for growth. The neo-Brandeisians, however, were less concerned about bigness and its consequences for human character, than about revitalizing competition to bring down prices. It was the Depression crisis that spurred this evolution. For those convinced of the purchasing-power thesis, lower prices were a route to recovery, and recovery overrode all other considerations. The customary lines of battle were thus scrambled. Bigness could be an ally in lowering consumer prices, and unions could be an obstacle. In terms of governance tools, restoring competitive prices might require antitrust prosecution (of domineering unions or colluding small businesses, no less than of monopolies), or it might require regulation of anticompetitive practices, or it might require national ownership of an industry, depending on the circumstances. For neo-Brandeisians, the notion of trust-busting as a once-and-for-all fix was obsolete. Government would now need to undertake active and ongoing “policing” of the economy. And to avoid capture by powerful economic interests, its policing bodies would need to be politically insulated and staffed with public-spirited professionals. The young Harvard lawyers that Felix Frankfurter was disseminating throughout the New Deal agencies were natural acolytes of this view. Another important neo-Brandeisian voice was added to the New Deal in 1934 when Leon Henderson, a consumerrights advocate and economics whiz, joined the NRA staff. Rather than pushing the NRA aside, Henderson worked to convert its instrumentalities into a tool of competition enhancement. “As you know,” he wrote Johnson, “I have always felt that code provisions could be utilized to prevent and break monopolies, to induce competition, and to establish the broad rules of fair competition.”14 But the administration’s stakeholder corporatists and national planners had ideas of their own for fixing the NRA. They continued to view the antitrust approach as an exercise in futility. The better answer was to broaden representation on the code authorities to include labor representatives and consumer representatives, and to elevate the position of the government representatives to planners-in-chief.

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Gardiner Means and “Administered Prices” The most important boost to the corporatists and planners came from a study prepared by Gardiner Means. As a graduate student of economics at Harvard, Means had, with Adolf Berle, coauthored The Modern Corporation and Private Property, a work that produced a minor sensation when it appeared in 1932, partly because of its documentation that half of all U.S. manufacturing was in the hands of a mere two hundred corporations.15 Roosevelt cited this and similar statistics, as fed to him by Berle, on various occasions during his 1932 campaign, as evidence of the passing of the individualistic economic order and the need to embrace a cooperative one. Late in 1934, Means, now working for the Department of Agriculture, presented evidence that the Depression itself was attributable to this industrial concentration.16 The policy of laissez-faire, Means argued, had worked fine when the bulk of economic activity was conducted on an atomistic basis by individuals and families. Market price was then a sufficient coordinator of economic activity. But industrial concentration meant that, within certain economic sectors, single corporations now had acquired leverage over total production, and thus leverage over price. (In today’s parlance, they had moved from being “price takers” to “price makers.” In Means’s phrasing, their prices were not set by the market, but by the administrative apparatus. They were “administered prices.”)17 So unlike the businessman in a traditional market, who, when faced with falling demand, cuts prices, the businessman in a concentrated sector has a choice. And “[w]hen he has the power to choose between lowering price and lowering production, good business policy frequently requires him in the presence of falling demand to hold price and curtail his production even though this means idle men and idle machines.”18 Means’s report documents this asymmetry of response to the economic downturn between the atomistic economic sectors (such as consumer perishables), where prices remained flexible, and the concentrated economic sectors (such as capital goods), where prices had become rigid. The most extreme asymmetry was in agriculture, where commodities dropped 63 percent in price while production fell but 6 percent, as compared to manufactured agricultural implements, which fell only 6 percent in price while production fell 80 percent. Price rigidity was confirmed by tabulations of the frequency of price changes in the various sectors, with atomistic sectors exhibiting frequent price changes and concentrated sectors exhibiting few.19

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The decision to hold price and cut production during economic downturns, while often correct from the point of view of business policy, is “wrong from the point of view of the public interest.”20 The net effect [is] to aggravate any fluctuations in economic activity and prevent any necessary readjustments. An initial drop in demand would result, not in price readjustment, but in maintained prices and curtailment of production, thus throwing workers and machines out of employment, reducing money income and spending power, and further reducing demand. The inflexible administered prices resulting from the shift from market to administration thus act as a disrupting factor in the economy and could cause an initial small drop in demand to become a national disaster.21 The argument that the laissez-faire economy eventually undermines itself through its very success was, of course, the contention of Karl Marx, and there are parallels in the historical narratives each author unfolds. But Means’s debts ran more to Veblen than to Marx. Like Marx, Means tells a story about industry concentration and celebrates this concentration for vastly increasing productivity. Also like Marx, he sees this concentration inducing occasional economic earthquakes that will push us beyond laissezfaire. But unlike Marx, Means did not see these earthquakes being generated by a dynamic of price cutting and overproduction, but by a dynamic of price maintenance and underproduction. More important, Means did not see violent revolution and the appropriation of the means of production by the proletariat as the solution. Means actually accepted the outcomes generated by a competitive market economy as the “right” outcomes— outcomes that made full use of natural and human resources and that balanced the interests of owners, laborers, and consumers. The problem was that the United States no longer inhabited a world of uniformly competitive markets. This left two basic alternatives: either reatomize the economy by breaking up the large corporate units, or “supplement the market mechanism with institutional arrangements (N.R.A., A.A.A., money system, etc.) sufficient to allow the economy to function effectively in the presence of and in spite of inflexible prices.”22 Like New Nationalists generally, Means believed that “pulverizing” industry would cost too much in lost productive efficiency. So Means counseled opting for the second alternative. The real question, in his mind, was what institutional arrangements would provide the needed supplement to the market mechanism. Means, rejecting gov-

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ernment ownership as doing too much and public-utility-style regulation as doing too little, argued for a modified, more inclusive, corporatist system. Means reasoned that, since, in the classic laissez-faire market, the interests of businessmen, workers, and consumers are balanced against one another, the surest way to approximate its outcomes—to make the “key decisions” in the “correct” way—would be to have these decisions made jointly by representatives of business, labor, and consumer groups, with government representatives also present nudging one way or the other to better secure the public interest. In short, Means saw his analysis as providing a clearer rationale for the AAA and NRA, and a rationale for modifying them to provide a better balancing of interests. Means’s report received a great deal of play, both inside and outside the administration. His argument about administered prices in particular seemed to find its way into everyone’s Depression analysis. It provided hard numbers to back up what many had suspected all along, that big business was in some way at the root of the problem. The purchasing power thesis of the Depression now had an official account of the mechanism through which purchasing power had been eroded—by administered prices. The very promiscuity of the report’s appeal, however, was testimony to the indeterminacy of its policy implications. The Brandeisian trustbusters, for example, took from it a critique of industrial combination (despite Means’s cautions on this point), and Senator Borah, the Senate’s leading trustbuster, had it made a state paper. Neo-Brandeisian regulators saw it as an argument for greater government oversight of industry. Tugwell (who had brought Means to Washington) saw it as further proof of the private profit system’s bankruptcy. Even Keynesians saw it as a complement to their spending proposals—breaking down “price rigidity” would prevent government spending from simply going straight into the coffers of the price-administering corporations. Nevertheless, the ones most buoyed by the report were the strong corporatists—naturally enough, since this was the policy direction Means himself advocated.

The Fallout outside Washington While the administration grappled with the question of what to do about the NRA, opinion outside of the administration began to radicalize. The NRA’s track record brought the animus against big business to new heights, and the persistence of the Depression stimulated a search for new measures. It seemed clear that there was great wealth in the land. If the administration

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could not figure out how to tap it, others were sure they could. In the South and West, proposals took a characteristically populist form. Huey Long’s “share the wealth” campaign, Francis Townsend’s plan for exorbitant national pensions, Charles Coughlin’s silver and inflation plans, Upton Sinclair’s “production for use” platform—all these ideas achieved enormous popular followings. “Respectable” opinion was hardly less radicalized. In 1934, 21,000 clergymen were asked whether capitalism or a “cooperative commonwealth” was more in accord with the ideals of Jesus Christ. “Only 5 percent chose capitalism; of the other 95 percent, 10,000 came out for a ‘drastically reformed capitalism,’ and 6,000 declared outright for socialism.”23 Among intellectuals, the idea of national planning continued to be the solution of choice. The New Republic remained a bastion of support for national planning, and late in 1933 still hoped the NRA might be turned to good effect. There remained in the NRA “potentialities . . . which have not been, but may be, realized. The law gives the government extraordinary powers to do economic planning . . . The President could, if he wished, dramatize the issues and gain widespread support in a genuine effort to discipline business in the interest of the public. If he is to make the essential modifications in our economic system . . . he must begin by being clear that if industry is to be governed . . . it must be governed by government and not by business.”24 But increasingly, intellectuals began to look beyond the New Deal, rejecting the possibility of a middle way between capitalism and collectivism. Dewey made the point in his introduction to a collection of essays by prominent intellectuals (including Philip La Follette, Theodore Dreiser, John Dos Passos, John Chamberlain, Edmund Wilson, Mary van Kleeck, Stuart Chase, Max Eastman, Upton Sinclair, Lewis Mumford, and Dewey himself ), most of whom advocated the aims of the Technocracy movement, with some, including Dewey, arguing for “a second American Revolution” to establish popular control of the means of production. Two years ago there was much discussion of the fact that “the intellectuals are turning left.” But there is no longer such a discussion: the intellectuals are left . . . The gigantic Roosevelt experiment of “relief, reform and recovery” showed a definitely new bias, to a controlled and humanized capitalism as contrasted with the brutality of laissez faire. But the necessary conclusion seems to be that no such compromise with a decaying system is possible.25

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In a foreshadowing of the ideological battle that was looming, Dewey acknowledged that “the NRA and the whole New Deal” bear “ominous analogies to Fascism abroad.” But he insisted they were, for all that, genuinely “American phenomena,” and that the analysis of their failure and the move beyond them would be thoroughly American, too.26 Clarence Darrow, the renowned criminal lawyer of the Leopold and Loeb case and the Scopes “Monkey Trial,” argued the same point in his role as chairman of the National Recovery Review Board. The board had been formed in 1934 to investigate accusations of monopolistic tendencies in the NRA. The supplement to the board’s much-anticipated report declared, in words that were probably Darrow’s own, that “the choice is between monopoly sustained by government, which is clearly the trend in the NRA; and a planned economy, which demands socialized ownership and control.”27 In mid-1935, the New Republic joined in rejecting the idea of a middle way. The NRA “was a remarkably clear demonstration of the difficulty of achieving socially desirable ends within the framework of capitalism . . . Either the nation must put up with the confusions and miseries of an essentially unregulated capitalism, or it must prepare to supersede capitalism with socialism. There is no longer a feasible middle course.”28 Liberal intellectuals would come to regret their either/or declamations by the end of the decade, when the political Right accepted the premise and used it to denounce governmental planning in all its shades. But in the mid-1930s, the implications of the argument cut the other way.29 Under pressure from all sides, Roosevelt opted to stay the course, albeit with a minor correction that basically split the differences among his economic advisers. “The fundamental purposes and principles of the Act are sound,” he declared in his 1935 message to Congress. “To abandon them is unthinkable. It would spell the return of industrial and labor chaos.”30 The act, he argued, should be extended for two more years. Its purview, however, should be restricted to the big industries (the “commanding heights” of the economy, so to speak). Furthermore, price and production controls should be limited to those that either protect small business, check monopolistic practices, prevent destructive competition, or conserve natural resources. Also, the labor provisions should be retained. Roosevelt was in essence charting a course toward something like the postwar German “social market,” with labor, business, and government participation in the setting of policy in the major industries.31 The bill looked headed for easy passage, despite opposition from trustbusters in the Senate. Support among trade associations and the big labor

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unions remained firm. But the fine-tuning would not be tested. On “Black Monday,” May 27, 1935, the Supreme Court handed down its Schechter decision, invalidating the NRA on the ground that the code authorities represented an unconstitutional delegation of legislative power. As Leuchtenburg notes, “many commentators claimed Roosevelt was relieved by the decision,” freeing him of an albatross. But then, Roosevelt was ever one to put a good face on a political setback. In fact, the president believed deeply in the NRA approach and was inclined to fight.32 But the Court made it clear through a line of subsequent cases that it was prepared to strike down any substitute. After a period of indecision, followed by prodding from his left flank, Roosevelt dedicated the autumn of 1935 to putting through a raft of labor and “compensatory” legislation, from the Wagner Act and Social Security Act, to the Wealth Tax Act and the WPA. Much of this was also constitutionally uncertain. But it put Roosevelt back on the offensive. Now he would wait to see what the 1936 election might bring before making any new advances on the structural front.

Cooperation through Overhead Planning: The AAA Operating in parallel with the NRA was another recovery program that, no less than the NRA, sought to lay the groundwork of a cooperative commonwealth. Where the NRA sought to do this for the industrial sector, the AAA sought to do it for agriculture. But its choice of governance tools was different. Coming much closer to the Tugwell school of overhead planning, it placed key decisions on production in the hands of government experts rather than the producers themselves. It also enjoyed much more success than the NRA, and for some it would serve as a model for how recovery and growth might be induced in the industrial sector as well. No economic sector was more depressed in the late 1920s and early 1930s than agriculture. And with agriculture as the livelihood of roughly a quarter of the population, this was a significant sector indeed. By the early 1930s, the economists of the Federal Farm Board had correctly surmised the underlying causes. During World War I, with European agriculture dropping off, the European demand for imports surged and the high prices encouraged farmers in countries such as the United States, Canada, and Argentina to increase production. U.S. farmers took out large loans to purchase new land and the equipment to cultivate it. The cessation of hostilities and the rebounding of agriculture in Europe thus produced a global glut. Protective tariffs went up in country after country to protect

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domestic farmers, leaving U.S. farmers with an annual output that the domestic economy could not begin to absorb.33 The situation went from grim to dire when the Depression hit. Domestic demand dropped; then international sales dried up, as foreign nations, retaliating to the SmootHawley tariff, hiked their agricultural tariffs even further. Unlike the large industrial combines, which, as “price makers,” could pursue the strategy of maintaining price while reducing production, farmers were in a truly competitive economic sector—they were price takers—and, with large debts to service, had no alternative but to push production to the maximum. A strong case could thus be made that free-market competition was dysfunctional in the agricultural sector. For some growers in the early 1930s, the price fetched by their produce, after deducting freight charges, was nil, or actually in the negative. Farm foreclosures became commonplace, and spontaneous acts of farmer violence began to break out. There was even talk of a revolution coming from the countryside.34 Although the NRA is most often seen today as the lynchpin of the New Deal plan for recovery, “Roosevelt and many of his advisers believed the New Deal would stand or fall on the success of its farm program.”35 The imbalance between industry and agriculture was viewed as the mother of all economic imbalances. Revive the purchasing power of the farmer, and industry would be revived with it. The AAA was the administration’s strategy for achieving this recovery. It viewed the farm crisis in the same general terms that the NRA viewed the industrial crisis—as a problem of maladjustment between production and demand—and like the NRA, it looked to government-induced readjustment as the answer. This underlying commonality with the NRA has led most commentators to treat the NRA and AAA as analogous in approach. AAA economists and administrators paved the way for this treatment when they publicly presented the program in the same language of “economic democracy” and “producer self-government” that would be used to sell the NRA. But underneath this surface similarity were marked differences. For one thing, whereas the NRA took shape largely according to the wishes of the major interest groups involved—the industrialists and their trade associations—the AAA took shape according to the wishes of a set of academic and government economists against the wishes, if not against the interests, of the major interest groups involved—the farmers and their principle organizations: the Grange, the American Farm Bureau Federation, and the Farmers Union. This meant that, instead of price supports, tariffs, and export subsidies, which is what the farmers wanted, the

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farmers got production controls. Again, at first blush this seems but one more way in which the AAA was analogous to the NRA, where code authorities were used to restrict and apportion production. But here a second major difference emerges. In the NRA, the industry groups set the terms of production, with government consenting, whereas in the AAA, government economists set the terms of production, with farmers consenting, up or down, by referendum. These two differences converge on a single point—that the AAA was an expert-driven, national planning program, and thus fundamentally different as a governance project from the associational program that was the NRA.36 Roosevelt the candidate might have been expected to embrace the farmers’ demands, and in particular, to embrace the farm relief plan of George Peek, president of the Moline Plow Company, who had championed these policies for almost a decade. Winning over Midwestern and Western farmers, traditionally swayed by the Protestant cultural politics of the Republican Party, was the key to Roosevelt’s electoral strategy. The only plausible means for doing this was to appeal to farmers’ economic interest over their cultural identity. Given the strong farm support for the Peek plan, embrace of it would have been the obvious tactic for Roosevelt to employ. But he did not. Instead, he flirted with it—enough to draw the leaders of the Farmers Union and Farm Bureau to him—but without fully committing. In his major farm speech (Topeka, Kansas, September 14, 1932), Roosevelt endorsed the idea of making the tariff effective for agriculture, but then proceeded to lay out his criteria for a farm relief plan. Among them were that the plan not stimulate production, not lead to European retaliation, and be voluntary or at least supported by a majority of farmers. In the end, the only available plan that would satisfy all these criteria was the one that had been hammered into shape by the agricultural economists at the Farm Board. It was no accident that this should be so. With Tugwell acting as intermediary, the agricultural economists had gotten to him. Mordecai Ezekiel and M. L. Wilson, the leading Farm Board economists, were the principal drafters of Roosevelt’s speech.37 The Agriculture Adjustment Act of 1933, like the other bills here discussed, gave Roosevelt wide latitude to shape the program—a latitude that he passed on to Henry Wallace and Tugwell, his Secretary and Undersecretary of Agriculture, and to their Farm Board economists. The program they assembled was highly innovative and a revolutionary departure from all previous farm policy in placing production controls front and center. At its core was an acreage reduction plan that provided benefit payments,

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financed by a tax on food processors, to farmers willing to remove acreage from the production of certain commodities. Ezekiel, the source of the acreage reduction approach, envisioned participation being mandatory.38 Wilson and Wallace insisted that it be voluntary. Growers of a particular commodity would meet in their communities to determine whether they should bring it under the allotment program, and, if so, to apportion the reductions and payments. Even then, individual farmers could opt out. Provided that the economists calculated the benefit payments correctly, however, a farmer would be able to earn more by participating than by opting out. “Under this plan,” Tugwell enthused, “it will pay farmers, for the first time, to be social-minded, to do something for all instead of for himself alone. We thus succeed . . . in harnessing a selfish motive for the social good.”39 Ironically, despite these efforts to guarantee voluntarism, the program proved so popular with farmers that they themselves, trusting in their new local corporate power, pushed to eliminate the voluntary component of the program. Over the objections of Wallace and Wilson, legislation such as the Bankhead Cotton Control Act, the Kerr-Smith Tobacco Control Act, and the Potato Control Act made the crop reductions compulsory.40 The structure of the AAA was thus Tocquevillian. Administration was decentralized to thousands of local production-control associations, run by more than 100,000 committeemen, with millions of farmers voting in the crop referendums. But it was centralized in policy making.41 This was the kind of national planning model that Tugwell wished to bring to the NRA. Among the things that made it possible in the agricultural sphere were two that were missing in the industrial sphere. One was a governmental administrative apparatus. Following a creative plan drawn up by Ezekiel, the AAA was able to borrow and adapt the Extension Service’s existing county agent system to hold referendums and sign millions of contracts with individual farmers.42 The other, more decisive, ingredient was the existence of an experienced and unified cadre of policy intellectuals accessible to the government and capable of formulating and administering actionable plans. The AAA production-control program required the determination of parity targets, processing taxes, benefits rates, production levels, and acreage bases. The same USDA-land-grant college experts who had developed and promulgated proposals for production control were brought into the AAA to carry out these tasks. Connections between

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the USDA and the land-grant colleges provided the AAA with a source of staffers oriented to professional planning norms rather than to the demands of either farmers or businessmen.43 Such a cadre was absent in the area of industrial policy in 1933, as it is absent today. The unsuccessful efforts to create one in the late 1930s will be discussed later. The AAA was heralded, then as now, as a substantial success. During Roosevelt’s first term, production dropped, crop prices climbed, real farm income (adjusted for rising costs of living) rose 30 percent, parity ratios with the manufacturing sector improved, and rural debts were sharply reduced.44 A sector of the economy traditionally the most individualist and competitive had been brought under a national planning regime. Politically, the farmers were won over to the program, as were the merchants and mail-order companies that served them.45 There were a few blemishes among the successes. The local administration of the program through the farm bureaus and the Extension Service meant that the interests of the larger growers usually won out.46 This was particularly damaging in the South, where African American sharecroppers were effectively excluded from the benefit payments and many forced off the land by the acreage reductions. Attempts by liberals within the AAA to use the program to reform the Southern agricultural system led to their “purge,” to avoid alienating Southern planters whose support remained vital to the New Deal coalition. The planners had to observe some clear political limits; nevertheless, most of the program’s shortcomings were seen as correctable with greater administrative oversight or political reform. By 1935, Raymond Moley could describe the AAA as “the most successful and generally popular feature of the New Deal.”47 The Supreme Court struck down the AAA in 1936, declaring both its end (the federal regulation of agriculture) and its means (the imposition of contractual obligations on those accepting federal benefit payments, and the financing of these payments through a processing tax) to be unconstitutional.48 Unlike the NRA, however, the AAA received a quick repackaging. The existence of a large and capable policy-intellectual cadre, now working with strong political support behind it, resulted in the rapid formulation of a new agricultural relief program, the Soil Conservation and Domestic Allotment Act of 1936, that circumvented the Court’s strictures and sailed through Congress. It built upon an approach that had played a

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relatively minor role in the AAA, but that nevertheless had deep roots in the American agricultural economics tradition, especially in the Wisconsin school of Richard T. Ely and John Commons. This was the conservation and resource management approach. Under the 1936 legislation, the government would lease submarginal agricultural lands, removing them from production. Additionally, farmers were encouraged to reallocate acreage from “soil depleting” to “soil conserving” crops through the offer of benefit payments. And as William Barber notes, “It was no accident that those crops identified as soil-depleting—e.g., wheat, corn, cotton, tobacco— were subject to price-depressing surpluses, whereas the soil-conserving ones—grasses and legumes—were not.”49 To avoid the unconstitutionality of the processor tax, the funds for the payments would come straight out of the general budget. The intent of all of this was to attain crop reductions comparable to that attained through the AAA, now through the strategy—which for most of the agricultural economists had always been the preferred longterm strategy—of conservation and efficient resource management. It suffered somewhat for the lack of the stronger controls of the AAA regime. Surpluses began to rise again, and in 1938 an “ever-normal granary” was instituted to store crop surpluses. But the basic program remained one of production control through national planning. What is more, the type of national planning it now represented—conservation and efficient resource management—placed the agricultural program in line with a broader development vision being instituted by the administration, which we turn to next.

5 Two Roads to the Development State: TVA and NRPB The Tennessee Valley Authority The movement for national resource management and public power had its immediate roots in the late nineteenth-century battles of urban progressives to establish city parks and public municipal utilities,1 and its deeper roots in the developmental vision of Hamilton, J. Q. Adams, and Henry Clay. In the first decade of the twentieth century—a time of rapid private engrossment and exploitation of land, forest, mineral, and water resources—President Theodore Roosevelt forcefully directed public attention to issues of conservation and natural resource management. Through a series of national commissions, beginning with the Public Lands Commission in 1903, continuing with the Inland Waterways Commission in 1907, and culminating with the National Conservation Commission in 1908, a case for national planning in conservation and resource management was developed. An alienated Congress effectively brought the commissions to an end by making it illegal to pay commissioners without express congressional authorization, which they then refused to provide. The national resource planning idea thus lay fallow through successive Republican administrations.2 But Theodore Roosevelt succeeded in establishing as progressive and popular principles the notion of (1) federal management of natural resources in the interests of the whole people (including those yet to be born) rather than for the benefit of special groups or locales, and (2) taking a comprehensive view of the nation’s resources in their complex interrelationships and developing a “coherent plan” to get maximal use from them. As this suggests, there were really two issues Roosevelt was raising: the issue of conservation, the “gravest problem of today,” but also “another and greater problem to which this nation is not yet awake, but to which it will awake in time and with which it must hereafter grapple if it is to live—the problem of national efficiency.”3 He also 116

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made the pregnant suggestion that the notions of conservation and efficiency applied to “the body politic as well as to the earth.”4 In this respect, as in so many others, Franklin D. Roosevelt was a chip off the old block.5 No idea warmed the new president’s heart more than the idea of national planning for the public interest in the areas of water and land use, conservation, and resettlement. Not only did he have the example of his larger-than-life cousin to look to. He also had the example of his uncle Delano, whose work in urban and regional planning impressed him and struck him as extendable to the broader landscape.6 Finally, from his years at Hyde Park, he had developed a love affair with nature and learned the wisdom of long-term resource management. In one notable instance, he reforested a portion of his estate, to reclaim it from exhaustion after several generations of agricultural use.7 It appears to have been an important object lesson. The Civilian Conservation Corps (CCC)—the very first New Deal program to be passed (excluding the emergency banking legislation and Economy Act), and a program of which Franklin Roosevelt was especially proud—was the management of Hyde Park writ large, putting 300,000 young, unemployed urban men to work in national parks and forests, digging reservoirs and fish ponds, preparing fire breaks, improving beachfronts, and planting lots and lots of trees.8 This developmental vision was part economic, part aesthetic, and part moral. Like so many landed gentlemen before him, Roosevelt feared what urban living did to a man’s moral and physical constitution, and although he was not so fanciful as to resurrect the Jeffersonian yeoman idyll, he did harbor hopes of regaining a “balanced civilization,” neither peasant nor proletarian.9 For the urban unemployed, this meant giving them a dose of the country, and the psychological uplift of landownership, through programs such as the CCC and through the underwriting of Greenbelt communities and similar protosuburban resettlement communities. For the tens of thousands of poor farmers who blanketed the vast Tennessee River shed water, it meant bringing hydroelectric power and light industry to the valley under the auspices of a landmark regional planning authority, the TVA. Roosevelt did not view these as recovery programs per se. Rather, they expressed his long-term development vision for the country—a vision of industrial deconcentration with deep roots in American progressivism.10 If Roosevelt had pet projects, these were they. The TVA was a particularly grand expression of Roosevelt’s development vision. Its history, appropriately enough, went back to 1903, when cousin Theodore Roosevelt, who wanted the nation’s waterways to develop under

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comprehensive national plans, vetoed a bill that would have given a private individual the right to build a dam and power station near the little town of Muscle Shoals, Alabama.11 It was an attractive site for dams—a place where the Tennessee River dropped 130 feet over a 40-mile stretch.12 During World War I, a dam was finally built, by the government, to generate the power needed to produce synthetic nitrates, the ingredients of explosives and fertilizer. This is where things had remained, despite the dogged efforts of George Norris, chairman of the Senate Agriculture Committee, to expand it into a major public power operation. Before his inauguration, Roosevelt engaged Senator Norris in a tour of the valley and, to the delight of the senator, laid out his own vision, yet more sweeping, for a planned development of the entire shed water, integrating projects on erosion and flood control, river navigability and water purity, forest and land management, and of course, the project for public power, for fertilizer production, and for the development of other light industry. It would create a self-sufficient regional economy, wholesome and balanced, and capable of absorbing some of the urban overflow. In his message to Congress in support of his plan, Roosevelt argued that the dam at Muscle Shoals “leads logically to national planning for a complete river watershed involving many states and the future lives and welfare of millions. It touches and gives life to all forms of human concerns.”13 To carry it out, he proposed the Tennessee Valley Authority, “a corporation clothed with the power of government but possessed of the flexibility and initiative of a private enterprise.” The federal government had entered the economic development business, bringing to fruition a Progressive aspiration with roots all the way back to Hamilton. Roosevelt’s selection to chair the TVA board was Arthur E. Morgan, a civil engineer by vocation and, fittingly, Edward Bellamy’s devoted biographer by avocation. Morgan was fully behind the president’s vision. Years earlier, his work on a land reclamation project near Memphis, Tennessee, had served as an object lesson on the insufficiency of uncoordinated individual initiative, even in the face of opportunity, in securing economic and social prosperity. Years after the project was complete, the local population remained about as backward as it had been. This convinced him that benevolent paternalism in the form of comprehensive planning, encompassing health, housing, and education, as well as power and land use, was indispensable. And true to Bellamy, he was convinced that changes in the social environment could elevate the very character of men. As Roosevelt described his work to a White House press conference, “What we are do-

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ing there is taking a watershed with about three and a half million people in it, almost all of them rural, and we are trying to make a different type of citizen out of them.”14 With its semi-independent status, its development mission, and its staffing, the TVA was the closest thing to the technocracy model of overhead planning by politically insulated engineers to come out of the New Deal. This made it the special favorite, among New Deal programs, of all the ambitious social planners. The TVA, Tugwell wrote, “carries more significance for the future than any other single attempt of the administration to make life better for all of us.” Norman Thomas, the perennial Socialist presidential candidate, called it “a beautiful flower in a garden of weeds.”15 There were limits to the TVA’s developmental depth, primarily owing to the limits in the development vision of its director. Arthur Morgan was more accommodating of the wishes of the local power companies than he needed to be, and he shared Roosevelt’s rural-urban vision perhaps to a fault. “That the one planning body so far established by the government should meantime be representing planning as a Davy-Crockett-coonskin-cap retreat from life seems a great shame,” lamented the New Republic in 1933.16 But these were the uncharitable words of a disappointed lover. The TVA’s accomplishments, despite board disagreements as to mission and methods, were substantial, not only improving water, woods, and soil, but also introducing better agricultural methods, schools, and recreation. In the area of power, it revolutionized the U.S. power industry by showing the economic viability of high-volume, low-price power supply. Leuchtenburg is only one of many New Deal students to conclude that “the TVA was the most spectacularly successful of the New Deal agencies, not only because of its achievements in power and flood control, but because of its pioneering in areas from malaria control to library bookmobiles, from recreational lakes to architectural design. No other agency did so much to alter the mores of the region.”17 Its fame spread far and wide, becoming a model for planned development as far away as Palestine. Thus, by the mid-1930s the two greatest success stories of the New Deal, both in the eyes of contemporaries and of posterity, were also the programs that used the strongest dose of overhead planning—the AAA and the TVA. Congressional conservatives never liked them, and the programs almost met their demise when, in 1943, conservatives gained the clear upper hand and began sending New Deal programs to the chopping block. But the programs worked, and they built strong constituencies behind them, helping them withstand the antitotalitarian onslaught against

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“planning.” If the NRA was the biggest failure of the New Deal, the AAA and TVA were the biggest successes. The real question, then, is not why pieces of it survived. The real question is, why weren’t these approaches extended? Actually, proposals were made. Already by the end of 1934, Mordecai Ezekiel had drawn up a plan to use machinery analogous to that of the AAA to spur industrial recovery, and in 1937 his plan was cast into legislative form as the Industrial Expansion Act. Meanwhile, in 1935 Congress asked if more regional authorities, similar to that of the TVA, might not be founded. Roosevelt was delighted at the prospect, and in June 1937 submitted a bill to create seven regional authorities, each one centered on a major river valley basin. But as we will see, neither of these proposals would survive the furor of 1938.

The National Resources Planning Board The body that emerged as the nerve center of the developmental governance project was the National Resources Planning Board (NRPB). When the AAA needed assistance identifying submarginal lands and more promising sites to relocate farmers, it turned to the NRPB. When Congress asked Roosevelt for replication of the TVA in other regions, the president took it to the NRPB. By the late 1930s, the NRPB, working jointly with the nation’s philanthropic foundations, had conjured into existence a network of state and regional planning bodies for which it became the central consulting and coordinating body; at the same time it served as the central node of an equally extensive network of social scientific research organizations and universities faculties, all committed to the planned development of natural and human resources under expert guidance. The key difference between the NRPB and TVA approaches to planned resource development was that the former was purely advisory, with no power to execute its plans. Its goal was to make public policy more intelligent, as much by bringing existing development programs into a coherent vision as by initiating new development programs. It thus represents a very modest version of “national planning”—planning subject to legislative enactment. All the more surprising, then, is the passion with which the board was denounced and dismantled by Congress in 1943. In consequence, the United States remains one of very few countries in the world, developed or developing, that does not have a national planning agency tasked with bringing coherence to its public investments. There is perhaps no better evidence of development planning disappearing from the national liberal agenda than the dearth of scholarship on

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the board and its planning vision (which contrasts with the voluminous literature on the American Keynesians, for example). Only in recent years have New Deal historians begun to give the board a canonical place, especially those developing the idea of a Third New Deal. For these authors, the board is taken to illustrate the transition from the First, structuralist New Deal to the Third, fiscalist (or “Keynesian”) New Deal.18 Yet this emphasis obscures the board’s real significance. Neither the structuralist prescriptions of Gardner Means and Mordecai Ezekiel, nor the fiscalist prescriptions of Alvin Hansen and Lauchlin Currie, represent the core of the board’s development vision. Theirs was a debate within just one division of the board, the Industrial Section, while the overarching approach of the board, the national resources development approach, was in other hands. In comparison to either the structural reformers or the fiscalists, the national resources approach came out of the mainstream of American progressivism. And its continuities with Hooverite “associational planning,” which also came out of this mainstream, were greater than the discontinuities.19 The NRPB was formally constituted in 1933 to help evaluate and prioritize the public works proposals coming before the Public Works Administration (PWA), the national executive’s first major program of direct, large-scale public investment. It’s spiritual birth came a year earlier, however, when it was conceived by Charles Merriam, with possible input from Wesley Mitchell. Both had been central figures in Hoover’s “associational planning” and served respectively as vice-chairman and chairman of Hoover’s path-breaking Research Committee on Social Trends, where they became convinced of the need for a body such as the NRPB.20 The “citizen members” of the board, who for practical purposes functioned as its directorate, were initially three in number: Merriam, Mitchell, and Delano Roosevelt, the president’s uncle.21 Delano Roosevelt brought to the board the sensibility, and connections, of one of the country’s most experienced city planners. Merriam also brought experience with city planning, and additionally brought an interest in administrative government and an unrivaled set of connections to the world of professional social science. Mitchell brought an interest in using public works to stabilize the business cycle. In 1935, Mitchell would leave to pursue this research program full-time at his institute, the National Bureau of Economic Research, to be replaced by Henry Dennison and Beardsley Ruml.22 Dennison brought to the board his experience as arguably the country’s most prominent progressive businessman. Ruml brought to the board far-flung philanthropic connections, developed over the years that he was director of the Laura Spelman Rockefeller Memorial. Before their appointment to the board, all

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five men had been lifelong progressive Republicans. Their willingness to accept the appointment of a Democratic president was of a piece with their progressive aspiration to provide disinterested policy leadership independent of partisan politics. As an adjunct of the PWA, the board’s work was necessarily weighted toward the immediate demands of project evaluation. But board members— Merriam and Mitchell especially—were anxious to refocus on long-term planning—the “preplanning” that made project planning coherent and intelligent. They got their chance in 1934. Indiscriminate demands for flood relief in the winter of 1933–1934 convinced Roosevelt that it was time to institute national planning to bring some order to the demands. “We have been going ahead year after year with rivers and harbors bills and various other pieces of legislation which were more or less dependent, as we all know, on who could talk the loudest. There has never been any definite planning.” Later that year, contemplating a summer of drought, dust, and erosion on the Western plains, he issued a similar complaint: “Unlike most of the leading nations of the world, we have so far failed to create a national policy for the development of our land and water resources.” It was time to “put the physical development of the country on a planned basis.” A “permanent long-range planning commission” might be established, he thought, to lay out a twenty-five- or even fifty-year program for national development.23 National Planning Board members seized the opportunity. They prepared for the president a report, drafted by Merriam and revised by Mitchell, called “A Plan for Planning.” As Patrick Reagan describes it, “A Plan for Planning” dealt with major policy issues: the history of American planning, current types of planning in the United States, critical summaries of national planning in other countries, a definition and justification of national planning, a future vision of an abundant society made possible by planning, and specific recommendations for creating a permanent planning board. If American national planning had a bible, “A Plan for Planning” was it. FDR’s planners saw national planning as a continuously changing policy-making process led by the federal government working in cooperation with other organized groups while drawing on the research expertise of social scientists.24 As might be expected, Roosevelt embraced the report and its proposal for a permanent planning board. Roosevelt was initially thinking of a board focusing on natural resource planning, especially land and water

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use. But while bandying about ideas for naming the board, Mitchell interjected that humans were perhaps the country’s most important resource. Roosevelt granted the point. The phrase “natural resource planning” was replaced with “national resource planning,” and throughout the board’s existence, Roosevelt encouraged it to take this more expansive view—to plan for human welfare as well as natural resource development.25 Along with this came an increasing involvement of the board with the question of economic planning. Means and Hansen especially became involved with this aspect of the board, producing work that would bring the board its greatest troubles. From the beginning, the board’s work fell into four explicitly enumerated categories: planning and programming of public works; stimulation of city, state, and regional planning; coordination of federal planning activities; and research on such matters as natural resource use, demographics, social trends, and socioeconomic conditions. Befitting their respective biographies, Delano Roosevelt was most interested in the first task, Merriam and Mitchell most interested in the last. Because the board membership remained so small, it relied heavily on outside assistance. Much of its research program was farmed out to academic consultants and social science peak organizations like the Social Science Research Council (SSRC); much of its planning and programming work was undertaken by the growing number of regional, state, and local planning boards that sprang up with NRPB encouragement. What remained was the job of better coordinating the overlapping and often contradictory planning efforts of these and other governmental bodies, which the board managed by maintaining beneath it a growing office staff. Funding for these various activities came from the government’s emergency relief funds and from philanthropic foundations. The board was thus a natural extension of the interwar pattern of associational planning, although over time it exhibited the usual bureaucratic evolution toward a larger staff and the development of in-house experts in need of less external assistance. At the height of the board’s development, in the late 1930s and early 1940s, the central office staff hovered between 140 and 155 persons, with an increasing proportion engaged in socioeconomic research.26

Executive Reorganization for the Development State The members of the board were acutely aware that the board’s effectiveness as a national planning apparatus would ultimately be determined by its

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position within the administrative structure of government. Roosevelt from the beginning appears to have wanted it to report directly to the president, as a companion to the Budget Bureau.27 But in order to mollify an outraged Harold Ickes, who felt his PWA was its natural home, Roosevelt compromised and made it an interdepartmental agency, reporting only indirectly to the president. From this awkward position, the board tried to establish itself as a clearinghouse for the works proposals of all the different agencies. The board’s contribution to the outstanding performance of the PWA was substantial. But in its fight to become a general public works clearinghouse, its success, as one bureaucratic body among many jealous bureaucratic bodies, was meager. Perhaps in response to this predicament, or simply out of his own commitment to rational executive administration, Merriam began pushing the president to commission a study of administrative reform in the executive branch. As Otis Graham has noted, “[t]horoughgoing reorganization of the executive branch would not in itself ensure coherent national policy in basic areas. It would simply make coherent policy intellectually and administratively possible for the first time. Without reorganization, coherent policy was flatly impossible.”28 But from the very start, it was Merriam’s intention to couple a strengthened managerial presidency with a planning board that would be in a position to make policy not only coherent, but rational and progressive. Roosevelt very much wanted such a reorganization, but, it being a matter on which he had strong views, he was loathe to commit until he felt confident that he had a committee that would give him what he was looking for. Progressives bequeathed Roosevelt’s generation two main models for restructuring government for an industrial age. The older model, forcefully advanced in Croly’s The Promise of American Life (1909), advocated shifting governmental authority away from courts and legislatures and concentrating it in the hands of elected chief executives, who in turn would take advice from policy experts and act decisively upon it. The newer model, presented by Croly only five years later in Progressive Democracy (1914), still argued for shifting authority away from courts and legislatures, but moved it instead directly into the hands of experts staffing independent agencies. In each case, the goal was to increase the vigor of governance, and to minimize the opportunities for logrolling and corruption, by insulating governing officials from the reach of political party machines and organized economic interests. Of these models, Roosevelt sided squarely with the older one. As Barry Karl puts it, “His thinking was

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untouched by that side of progressivism that insisted on sharp distinctions between politics and administration.”29 In Roosevelt’s view—and his view was certainly correct—administration was unavoidably political. Administrative personnel as a matter of course would be involved in generating and defending public policies, in addition to administering them. And in a world of partisan politics, these policies could not be passed off as innocent determinations of neutral expertise, even should this ideal be met. Democratic legitimacy required that the administrative state remain under the control of the democratically elected chief executive. In sum, with the country interconnected as never before, national perspectives must preponderate over local ones; the executive must preponderate over Congress; and the president, as the one official accountable to the whole people, must preponderate over the bureaucracies within the executive. This was, Roosevelt believed, the only arrangement that would afford efficient and responsible democratic governance in an industrial age. When Roosevelt first assumed office, the prospects for a top-to-bottom executive reorganization were better than they had been at any point in the history of the nation. Almost every president from Theodore Roosevelt on had desired a reorganization, but a jealous Congress rarely let them make much headway. The new president, however, was inheriting the authority, from an act passed toward the end of the Hoover administration, to reorganize the government in any way he saw fit, subject only to a congressional veto, which in the early years would have been very unlikely. In December 1932, Roosevelt supporters in Congress vetoed all fifty-eight of Hoover’s reorganization orders in order to leave Roosevelt a clear field. Roosevelt, who was interested in executive reorganization from the very start, was anxious to seize the opportunity. Early in 1933, he met with Budget Director Lewis Douglas to lay plans for reorganization, and at his first press conference, he declared reorganization his top priority. But the press of events distracted him from following through. “I had grand intentions, but that is as far as we got.” There were also advantages to temporizing. By erecting emergency agencies de novo, outside the existing department structure, Roosevelt could circumvent the existing cadres of civil servants, holdovers from the Harding-CoolidgeHoover years who were liable to be out of sympathy with New Deal objectives. But by 1936, with new agencies and bureaus sprawling all around him, reorganization was becoming more urgent. Coordination was genuinely difficult, and he was afraid the mess would be used against him in future elections.30

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Merriam tapped Louis Brownlow, an eminent administrative reformer and current chair of the SSRC’s Committee on Public Administration, to speak with the president about what a study of administrative reform might contain. After extended discussions with Merriam and Brownlow, Roosevelt was confident he had the right men for the job. But the political terrain had changed. The reorganization authority left over from the Hoover years had expired, and any plan would now have to go through the usual congressional chop shop. So when Merriam suggested that the SSRC take responsibility for the report, much as it had the Social Trends report, the president balked, afraid that a public report, should it diverge from his own ideas about presidential leadership, would thwart rather than advance his designs. Roosevelt insisted that the report be done under executive auspices, leaving him with final control over its fate. After some unavailing attempts to dissuade the president, Merriam and Brownlow agreed to the terms. They brought in Luther Gulick, another expert on administration and Brownlow’s predecessor on the SSRC’s Committee on Public Administration, and the president’s Committee on Administrative Management (also known as the Brownlow Committee) was born. The president’s insistence on final control gave the project an undeniable political valence. But this did not mean Roosevelt wanted a political hack job. To assist with research, the committee brought in a large staff of academic specialists, including “some of the most brilliant academic minds of the twenties and thirties as well as many younger men who would, over the next decades, assume equal prominence.”31 It was made clear to them, however, that they were working for the president and had to be ready to relinquish all proprietary rights to their work. The draft report came in on November 14, 1936, and after perusing it, Roosevelt banged his approval on the desk with his fist. The report captured Roosevelt’s own ideas on proper governance structures, especially in the subordination of all agencies to the control of the president. Its authors had said little or nothing about the independent commissions, however, and Roosevelt suggested that they might do so. As revised, the report brought these, too, more directly under presidential control. The final fifty-three-page report introduced itself as a refutation of the argument of the totalitarian dictators that democracy dissipates in endless debate the energy needed to govern industrial society. Its various reorganization and reform proposals, the report declared, had “one grand purpose”: “to make democracy work today.” And for this, “strong executive leadership is essential.”32 The report contained six major sections. The first,

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on the White House staff, proposed furnishing the president with six executive assistants to lighten his administrative burden. The second, on personnel, proposed replacing the ineffectual Civil Service Commission with a single, energetic Administrator, and improving the quality of the civil service by raising salaries and reforming and expanding the merit system. The third, on fiscal management, proposed restoring control of accounts to the executive by abolishing the office of Comptroller-General and replacing it was an independent postaudit. (The Comptroller-General was a congressionally controlled office tasked with determining the legality of executive expenditures, and which, through the device of a “preaudit,” could hold up, and often did hold up, expenditures for many months.) The fourth, on planning management, proposed establishing the NRPB as a permanent “central planning agency” to coordinate government programs. (In an indirect acknowledgment of the centrality envisioned for this agency in the new governance structure, the report noted that “it would be necessary for the board to have ample provision for the maintenance of a staff equal to the performance of the heavy tasks imposed upon it.”) The fifth, on administrative reorganization, proposed two new Cabinet positions—Social Welfare and Public Works—and proposed bringing all executive agencies, including the independent regulatory commissions, under one of the twelve major departments. Without this, the executive would have power without responsibility, and responsibility without power. The sixth and final section, on the accountability of the executive to Congress, tried to put a good face on it all.33 All these proposals contained potential for controversy. But the proposal for a permanent planning board, which began as the least controversial, would end up becoming the most controversial of all. For a complete picture of the governance vision being proposed, the report should be read in conjunction with the “Seven Regional Planning Authorities” legislation that the NRPB was working up at the same time.34 As the name suggests, this legislation would have established seven regional planning boards, organized around major river drainage basins, whose focus, “in their early years,” would be on developing integrated plans for natural resource conservation and development.35 From the point of view of the NRPB, Roosevelt’s promotion of the river valley format was a piece of gimmickry. The board had already divided the country into eleven regions, according to what it believed was the more rational principle of metropolitan hinterlands, and established a regional field office in each.36 But Roosevelt wanted to capitalize on the popularity of the TVA in

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putting the bill through. This strategy appears to have backfired. The TVA, with its executive powers, was a much stronger kind of planning mechanism than the regional authorities were designed to be. In the language then in use among administrative reformers—a language originally drawn from the German “General Staff ” concept—the regional planning authorities, like the NRPB itself, were purely “staff,” with no “line” to execute plans. By late-1937, with the tide turning against the idea of executive government, Roosevelt would be running away from the TVA analogy. He would chide the press corps that the “little TVA’s” moniker was inapt.37 And in his message to Congress, he would emphasize that the proposed planning boards would possess no executive powers, and that Congress would retain discretion as to which projects received funding. But the message would also make clear that the projected programs of the seven boards would be reported to Congress “through the President after he has had the projects checked and revised in light of national budgetary considerations and of national planning policies” as developed by the NRPB.38 In other words, Roosevelt would be asking Congress to cede to the Executive Branch the initiative for formulating public works projects, and cede to the president and his planning board the responsibility for setting the list of projects from which Congress might choose. Connecting the dots between the Reorganization Bill, the Regional Authorities Bill, and the function ascribed to the NRPB, it was clear that what Roosevelt was really asking for was a constitutional revolution—a revolution that would give the United States an expert-guided, executive-sponsored, development state. All he had to do now was find the right moment to make the request.

6 Totalitarianism and the Scuttling of the Development State

Attacks on the administration were not long in coming, although in the early years, they tended to be directed at Roosevelt’s advisers rather than the popular Roosevelt himself. William Randolph Hearst’s denunciation of the “Karl Marx Socialists, the Frankfurter radicals, Communists and anarchists, the Tugwell Bolsheviks and the Richberg revolutionists” in the Roosevelt entourage was not atypical. There was a cabal behind the throne, it was said. Tugwell came in for the most criticism—the “bullseye of the lot.” In the course of his failing fight for a Pure Food and Drug Act—by today’s standards, a mainstream effort to impose truth-in-labeling and truth-in-advertising standards on industries in which quackery and toxicity were rampant—Tugwell acquired the damaging moniker of “Rex the Red,” and Roosevelt and his political advisers felt obliged to exile him to the wings.1 New Deal programs were denounced by conservatives in the same set of terms as the New Deal administrators. The NRA was denounced by the Right as “socialist” and “communist,” and by the Left (thinking of Mussolini) as “fascist”—although it was not unusual for all three labels to come pouring out of the same mouth in the same breath. Other programs received similar treatment. Speaking of the AAA, Representative Fred Britten of Illinois declared it “more Bolshevistic than any law or regulation existing in Soviet Russia.” Of the TVA, it “and every bill like it,” said Representative Charles A. Eaton of New Jersey, “is simply an attempt to graft onto our American system the Russian idea.” Of the CCC, William Green told a House-Senate committee that “it smacks, as I see it, of fascism, of Hitlerism, of a form of sovietism.”2 The most voluble attacks on the administration came from the Liberty League. Founded in the summer of 1934 by a small group of prominent conservative Democrats, the league was, as Digby Baltzell colorfully describes 129

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it, “devoted to defending the Constitution (after the deletion of the ‘General Welfare’ clause) and saving the American Way of Life from New Dealers, Communists and the inevitable dictatorship of Franklin D. Roosevelt.” But the publicity the league garnered was a function of the immense bankroll behind it, not the size of its support base. In 1935, for instance, the league “raised nearly as much money as both [parties’] national committees combined, and it spent over half a million dollars trying to defeat Roosevelt in 1936.” But all this money was coming from very few sources. “Fewer than half a dozen bankers, industrialists and businessmen contributed over half the league’s funds for 1935 (almost 30 percent from the du Ponts alone).”3 The administration’s conservative critics were groping toward the language that would ultimately do such damage to national planning efforts. But the totalitarian notion had yet to congeal, its image as a governance project not yet solidified. As Schlesinger notes, “The New Dealers who had seen every piece of reform legislation in their time denounced as ‘socialistic’ or ‘communistic’ remained unmoved when they heard the same old cries from the same old criers . . . Red-baiting was discounted as the conditioned reflex of those opposed to social change.”4 Comparisons of the New Deal to the programs of Mussolini, Hitler, and Stalin were made, but Americans had yet to learn how much they hated and feared these men and what they stood for. Central to the Republican strategy in the congressional election of 1934 was to portray the administration as drifting into the hands of radicals. But on election day, the Democrats’ numbers in the House swelled from 313 to 322, and in the Senate from 60 to an unprecedented 69—a stunning result, coming as it did in an off-year election. What is more, many of these new Democrats stood to the left of Roosevelt, having campaigned on platforms of “production for use” (as opposed to profit) and public ownership.5 Alarms about economic controls and the loss of the Constitution seemed to have limited popular resonance. While the White House celebrated its victory, Herbert Hoover was hard at work on his rejoinder to the New Deal. Winning over the Republican progressives would be central to Roosevelt’s 1936 electoral strategy, as it had been to his 1932 strategy, and given Hoover’s progressive credentials, Roosevelt continued to view him as a formidable opponent. He knew through friends that Hoover was preparing a book-length attack on the New Deal, and his worry was that Hoover would make cane with the administrative disorder in the alphabet soup of New Deal agencies. Charges

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of inefficiency, waste, and corruption were, after all, the standard progressive litany for criticizing governmental excess. Furthermore, as Roosevelt well knew, much of the New Deal was vulnerable to the charge, and Hoover, as the engineer-administrator par excellence, had unparalleled credibility to offer criticism. It was a harbinger of things to come that the work that appeared, The Challenge to Liberty (1935), was instead wholly given over to the charge of creeping dictatorship. Hoover matched up pieces of the New Deal with pieces of social policy in the new European dictatorships and decried the “regimentation” of economy and society that the New Deal was importing from Europe. In a private letter, Wesley Mitchell, a friend of the former president who had served on his Social Trends committee, pointed out to him that parts of the New Deal were extensions of his own ideas. The NRPB, on which Mitchell served, was a case in point, and it is not too much to say that Hoover functioned as midwife to the NRPB’s program for a development state. But Hoover wouldn’t hear it. His methods to secure business cooperation had been strictly voluntaristic. Roosevelt’s were coercive. He kept up the drumbeat through the succeeding years, referring to Roosevelt and members of the New Deal Brain Trust (who in any case were by this time already passing from the stage) as “totalitarian liberals.”6 Roosevelt was initially relieved by this turn. It made it all the easier to paint Hoover, and with him his whole economic approach, as reactionary. (It was an image that stuck with Hoover and for a long time prevented historians from appreciating the continuities from Hoover to the New Deal.) The Republican establishment at this point evidently agreed with Roosevelt that Hoover had made himself politically unsalable. Hoover badly wanted the nomination in 1936. Instead, it went to a progressive Republican, Alfred Landon, in an effort to beat Roosevelt at his own game. It would be evidence of a shift in the prevailing political winds that four years later the Republican sachems were willing to embrace antitotalitarianism as an electoral strategy. Hoover reprised his argument that New Dealers are incipient totalitarians at the Republican National Convention in Philadelphia in June 1940; Wendell Wilkie, the Republican nominee, warned voters that if “you return this Administration to office, you will be serving under an American totalitarian government before the long third term is up.”7 But in 1936, it was not the challenge from the Right, but the challenge from the Left, that had Roosevelt worried about his reelection prospects. Many of the more radical voices that had supported him in 1932 had by 1936 turned against him and threatened to carry crucial pieces

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of his coalition with them. Huey Long, the Louisiana governor-turnedcongressman-turned-presidential candidate, had tapped into a resurgent Southern populism with his Share-Our-Wealth campaign and threatened to draw off chunks of Roosevelt’s Southern and Western support. Father Coughlin used his wildly popular radio program to denounce the New Deal for refusing to nationalize the banks and remonetarize silver, and came out for Long, threatening Roosevelt’s hold on urban ethnics.8 Francis Townsend, a California doctor, brought the elderly to political life with an outrageously expensive but tantalizing proposal for $200 a month old-age pensions, with each check expiring at the end of the month unless spent. And it was feared that he, too, would direct his supporters to Long. Finally, there was the Republican nominee himself. With Hoover having gone off the deep end, Landon was, in Roosevelt’s own eyes, a tougher opponent, for he threatened to siphon off the progressive Republicans that Roosevelt felt he needed. And indeed the campaign he ran was against Hoover and the Depression, preferring not to engage with Landon himself.9 All these challenges from the Left were perceived by Roosevelt in 1936 as bigger threats to his reelection than the cries of dictatorship and totalitarianism coming from the Right.10 Significant pieces of Roosevelt’s legislative program in 1935—the National Labor Relations Act, the Social Security Act, the Wealth Tax—if not simply the result of political calculation, were nevertheless expected to take the wind out of the Left’s sails. (In the end, it was Long’s assassination in the election run-up that spared Roosevelt the potentially fatal fight.) In sum, the Roosevelt administration entered the 1936 election with the entire gamut of Progressive governance projects percolating along. The NRA had been struck down, but the prevailing cry was for more, not less government intervention in the industrial economy. The AAA, too, had been struck down, but it was quickly being reconstituted with the support of farmers and the farm organizations. The TVA had survived a Court test and remained one of the administration’s most admired programs. The NRPB had as yet attracted little comment or controversy, and executive reorganization plans were in the works. Antitotalitarian rumblings were increasing in volume and frequency, and a certain amount of trimming and spinning was occurring to stave off such criticisms. But there was nothing to suggest that the New Deal would soon be on the defensive. Instead, Roosevelt waited for the 1936 election results to see where the reinforcements, if any, would be greatest, and which fronts might be advanced.

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The Election of 1936, and Agenda for 1937 The election returns suggested Roosevelt might proceed on any front he wished. It was a smashing victory: he won every state except Maine and Vermont. On the congressional side, his coattails brought his alreadydominant party yet more seats, giving the Democrats an unheard of threequarters majority in both the House and Senate. What did it mean? In 1932, Roosevelt had run a national unity campaign. In 1936, he had done anything but. Roosevelt was fed up with the obstructionism and denunciations of businessmen, especially in light of their inability to offer constructive ideas of their own on how to deal with the Depression, despite Roosevelt’s sincere and repeated solicitation of their advice. Feeling his strength among industrial workers after the Second Hundred Days, Roosevelt, hardly mentioning his opponent, ran a campaign touting the improvement of conditions since 1932, and denounced the “economic royalists” and monopolists who wished to undo the New Deal and engross all for themselves. When charges of dictatorship were aired, Roosevelt responded in kind: the real threat of dictatorship came not from him, but from these royalists, who wished to impose a “new industrial dictatorship” akin to fascist Italy. To an uproarious crowd at Madison Square Garden in the campaign’s last week, Roosevelt declared: “I should like to have it said of my first administration that in it the forces of selfishness and of lust for power met their match . . . I should like to have it said of my second administration that in it these forces met their master.” Even members of his own administration winced at the language. But the statistical sampling polls showed a marked swing toward Roosevelt in the final weeks of the campaign, just as the economic rhetoric heated up.11 Roosevelt, the New Dealers, and the liberal press all interpreted the electoral returns as a massive groundswell for a strong presidency. Roosevelt had not exactly foregrounded the idea of a strengthened executive in the campaign, but how else were the “economic royalists” to be brought to heel?12 Correct or not, this was clearly the optimum moment for him to consolidate his governance projects by putting in place the governance structures they would require. It was widely remarked on in the papers of early January 1937 how moderate, how conciliatory, the president’s tone had become, and what a sharp contrast it made to the hot language of the recent campaign. In his State of the Union speech on January 6, he appeared to reach out to the Court.

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Many liberals had been pushing for a constitutional amendment to make it possible, with sustained congressional supermajorities, to override Court determinations of unconstitutionality. Roosevelt instead suggested his concurrence with what he called the “growing belief that there is little fault to be found in the Constitution . . . as it stands today.” He did not back down from his opinion of the constitutionality of New Deal legislation. But in words that suggested he was hoping for quiet accommodation from the Court, he continued: “The vital need is not an alteration of our fundamental law but an increasingly enlightened view with reference to it.” In his annual budget message the next day, Roosevelt reached out to business. With recovery seemingly under way, he promised to balance the budget in the next fiscal year without further tax increases, and dropped threats of any further moves against business, asking only their “cooperation” in “employing men and women off the relief roles.” It was good news for businessmen, who had feared and expected far worse.13 Yet Roosevelt’s irenic words were more a matter of tone than substance, for he hardly believed that the work of the New Deal was done, even should recovery be upon them. As he put it in the conclusion to his State of the Union speech, speaking to Congress, “Your task and mine is not ending with the end of the depression. The people of the United States have made it clear that they expect us to continue our active efforts in behalf of their peaceful advancement.” Even more assertive was his second inaugural, on January 20. He spoke of the need for “practical controls over blind economic forces and blindly selfish men,” talked of “fashioning an instrument of unimagined power for the establishment of a morally better world,” and issued his stirring call for the national government to wipe out the conditions of life that had left “one-third of a nation ill-housed, ill-clad, ill-nourished.”14 Published commentary noted that such a war on poverty “would require bolder, deeper, more massive legislative penetrations than any thus far pressed”—and this, despite the repulsion of these earlier incursions by the Supreme Court.15 As this suggests, Roosevelt’s invocation in his address of a new era of good feeling has been misconstrued by most subsequent commentators. It was not a call for a truce. It was a call for exactly that which had produced the first era of good feeling—the peaceful acquiescence of the opposition, after its electoral obliteration, to the new order of things. Roosevelt’s moderation in early January, it emerges, was part of a charm offensive aimed at softening the opposition prior to his opening a new re-

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form front. So was his extensive interview, in the second week of January, with Anne O’Hare McCormick, foreign-affairs columnist for The New York Times, in which he emphasized his personal commitment to democracy and his temperamental aversion to the “lonely grandeur” of Hitler’s dictatorialism.16 What Roosevelt was really doing was calming fears about his intentions—offering his opponents peace in the run-up to his request for instruments that would enable him, should it prove necessary, to more effectively wage war. On January 12 Roosevelt submitted to Congress as the first bill of the new session his plan for executive reorganization. Three weeks later, he submitted a six-year program of public works drawn up by the NRPB—a submission evidently designed to illustrate, in its most unobjectionable form, how the proposed executive governance system would work and what might be expected from it. Two days after that, on February 5, before the executive reorganization bill had been digested, Roosevelt exploded a bombshell, submitting to Congress, with absolutely no advanced warning, a companion bill for “judicial reorganization.” On the transparent pretext of expediting the work of a graying Court, the bill would have given Roosevelt the right to temporarily expand the Court by six additional justices—and no one was in doubt as to what the disposition of any new justices would be toward New Deal legislation. This was not the legislative program the country had been expecting. Precisely speaking, it was not a program at all (in the sense of a policy direction). It was a preprogram. Both reorganizations were needed, Roosevelt’s message to Congress stated, so that the executive and the judiciary “may function in accord with modern necessities.”17 Reading between the lines, this meant that the first reorganization was necessary to institutionalize a development state—what was shaping up to be the new centerpiece of the president’s war on poverty and social deprivation. The second “reorganization” was necessary to sustain those structural reforms to the economy that had already been made (court challenges to the National Labor Relations Act and the Social Security Act were pending, and looked like they would be successful) and any that might yet need to be made. (A federal minimum wage and maximum hour law was under consideration to replace the temporary provisions that had died with the NRA, and Roosevelt was still interested in proposals for executive management of the economy.) Development and reform had officially replaced recovery as the priority of the New Deal.

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Judicial and Executive Reorganization It was to the lasting detriment of Roosevelt’s governance plans that the legislation he needed to institute them was submitted at a time when the sense of economic emergency was waning and the fear of totalitarian dictatorship was waxing. Early signs were that executive reorganization would have an easy ride. Roosevelt had been concerned about the reception his reorganization plan would be given. Initial reaction suggested his concerns were unfounded. Walter Lippmann, who since 1934 had had growing misgivings about the New Deal’s structural reforms to the economy, still retained his progressive convictions on the need for an energized executive. He pronounced it “a great document.”18 Lippmann was not alone in his judgment. Public reaction to the proposals ranged from mildly sympathetic to highly enthusiastic. No one questioned the desirability of reorganization, and most applauded the Committee’s plan. The league of Women Voters extended full support. Prominent Republicans such as Will Hays and Frank Lowden expressed hearty approval. Nicholas Murray Butler solemnly termed the Report “the most important utterance on any question affecting the organization and efficiency of our government which has come from the White House in my memory.” Political scientists hailed the Committee’s contribution to administrative theory. Most newspapers, led by the New York Times, offered firm editorial support. There were, of course, dissenters; but they were in a distinct minority.19 The business response, too, was largely favorable. Throughout the history of presidential proposals for executive reorganization—from those of Theodore Roosevelt and Woodrow Wilson to that of Herbert Hoover— business groups had been broadly supportive, seeing in the goals of efficiency, economy, and executive responsibility a reflection of their own best practices. In contrast to continental Europe, where central governments were the lead institutions in developing the techniques of administration, in the United States, it was business that led the way. The notion that government should be run on business principles has thus had perennial appeal in the United States (in the business-commissioner model of city government especially). And true to type, business was generally, if not uniformly, supportive. Business Week wished Roosevelt well in proving that “the biggest business of them all can be run on business principles.”20 The U.S.

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Chamber of Congress also endorsed much of the plan, noting that parts of it followed suggestions it had previously made itself. There was one ground for grumbling—executive reorganization plans heretofore had promised all three administrative virtues—economic, efficiency, and executive responsibility. Roosevelt’s plan promised only efficiency and executive responsibility. Most of the early criticism in business and in the Senate was on this point. But there was nothing out of the ordinary about this— just part of the usual debate over the size of government expenditures and the taxes that supported it. Despite all the hard feelings that had built up between Roosevelt and the American business class, most were supportive. The postelection conciliation was paying off. Roosevelt was pleasantly surprised at the public reaction, especially by the support from conservative quarters. Congress, however, was never thrilled with the plan, but no one had expected it to be. The proposed extension of the civil service would wipe out what remained of congressional patronage. The reorganization of agencies would deprive congressmen of their sway over pieces of the executive apparatus. Abolition of the ComptrollerGeneral was a particular sore point. The Comptroller-General during Roosevelt’s first term had been a fiscally conservative Republican appointee who regularly held up New Deal appropriations, insisted on endless documentation, and generally had the administration at wit’s end. Abolishing the office would take away one of the few checks the conservatives in Congress had been able to exercise over the spendthrift administration. Among all these gripes, though, few were directed at the idea of a planning board. A good number of other political forces were out of sympathy with the reorganization plan, also for reasons that had nothing to do with totalitarian nightmares. Roosevelt’s Cabinet was none too pleased, for reorganization would rile up territorial disputes among the department heads. Heads of various agencies and independent commissions were opposed, for it would weaken their individual fiefdoms in the same way it would weaken those of various congressmen and senators—by bringing all executive bodies under greater presidential control. Similarly, the established interest groups didn’t like it, for it would make it harder to penetrate the various agencies. But to the bill’s supporters, this kind of opposition gave further evidence of the need for the measures, for it revealed just how many separate tentacles were pulling at the executive apparatus, destroying its coherence and public accountability. While the opposition of the political elites was greater than that of the public, no one expected that they would prevail against the plan. A can-

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vassing of votes augured easy passage in both the House and Senate. There was one overwhelming reason Roosevelt would be able to muster the forces: his electoral romp.

Congress and the Court-Packing Plan A series of events would undermine the bill’s prospects. One of these was the Court plan that Roosevelt had intentionally associated with it. The idea was to use the evident support for the former to buoy the latter. In the event, the opposite occurred, with the sinking of the latter dragging down the former. It is widely recognized that the plan for temporary Court expansion precipitated the unraveling of Roosevelt’s legislative position. And it has been easy to infer from this that it was at the least a tactical mistake, and perhaps even a strategic blunder. After all, Roosevelt (it has been widely supposed) was not sorry to see the NRA go, and a work-around had been found for the AAA. Even more unaccountable was Roosevelt’s persistence in pushing the plan after Justice Owen Roberts shifted his vote to the liberal camp, and even after Justice Willis Van Devanter, in what was most likely an effort to render the plan moot, announced his retirement. Most of the decisions running against the New Deal had been split 5–4. With Roberts in the New Deal column and Van Devanter replaced, Roosevelt would seem to have a 6–3 edge. But Roosevelt kept pushing. Part of the reason may be that he had earlier promised the first Court vacancy to the Senate majority leader, Joe Robinson, himself an economic conservative. His appointment might well knock the edge back to 5–4. Also, there was no guarantee that Roberts, or even Chief Justice Charles Hughes, would continue to side with the three liberals, Louis Brandeis, Harlan Stone, and Benjamin Cardozo. This is the standing explanation for Roosevelt’s persistence.21 But it may also be apropos to bear in mind that the Schechter decision had been 9–0 against the NRA, and that part of what Schechter declared unconstitutional was the congressional delegation of legislative authority to the NRA’s code authorities. Roosevelt may have decided that he could manage without all of the NRA, but if he were to experiment further with the idea of an executive-managed economy—whether in the form of NRA, AAA, or TVA—a new distribution of legislative powers would be essential. Roosevelt was going to need more than an additional vote to sustain such a governance project.22

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The Court plan was a bombshell, all right. In Leuchtenburg’s judgment, “The President’s message generated an intensity of response unmatched by any legislative controversy of this century, save perhaps for the League of Nations episode.”23 Editorials, speeches, dinner-table talk, and unprecedented amounts of congressional mail agitated one side of the argument or the other. All other bills would be on hold while Congress dealt with this hot potato. From the start, no one was taken in by the president’s proffered rationale for the bill, and the subterfuge immediately became a mark against it.24 Yet despite the clear controversiality of the plan, early headcounts in Congress suggested the votes were there in both houses, even by comfortable margins, from congressmen loyal to the president and the party.25 Newspapers even speculated on who the new justices might be. But quickly things began to slip. Polls indicated public opinion to be evenly split, but an explosion of congressional mail was running 9–1 against—a greater discrepancy than normal, adjusting for the fact that most congressional correspondence is stimulated by opposition rather than support—suggesting that those with the strongest opinions were against it. And from early March, the poll numbers only went down. Also, major senators Roosevelt was counting on came out against it—Joseph O’Mahoney of Wyoming, Tom Connally of Texas, and especially damaging, the trueblue liberal, Burton Wheeler of Montana. Another significant development was the organization of the National Committee to Uphold Constitutional Government (NCUCG), to oppose the bill. Like the Liberty League, this was predominantly a group of Democrats. But unlike the league, NCUCG membership tended to be liberal, its defense of the Constitution was not restricted to the due process clause protecting the rights of private property, and its criticism of Roosevelt was not motivated by private interest. The organization was financed by the publisher Frank Gannett, and was led by Gannett, Amos Pinchot (a New Freedom man), and Edward Rumely (a New Nationalist). All three detested Hoover but were also disillusioned with Roosevelt, especially regarding his labor policy and his economic policy. But what really brought them together was their honest conviction “that Roosevelt would not hesitate to lead the country into war and totalitarianism.”26 In a beautifully organized campaign, the NCUCG sent out 15 million mailings, targeted at congressmen, newspaper editors, business leaders, clergymen, professionals, and other influentials, denouncing the bill and comparing Roosevelt

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to the European dictators. They could take much of the credit for the popular outpouring of congressional mail that followed, much of it reflecting the language of the NCUCG mailings.27 After the switch of Justice Roberts to the liberal camp, the sustaining of the National Labor Relations Act and Social Security Act, and the resignation of Van Devanter, even Roosevelt’s most loyal pressure groups (labor unions, farm organizations, and urban political machines) began to withdraw their active support for the bill. They now had what they wanted.28 Senators worked up compromise plans, but Roosevelt refused to budge. Instead, he submitted other bills, hoping support for them would buoy the Court bill. It did not help things, however, that among these new bills was the Seven Regional Authorities bill (submitted on June 3). By midJuly, 1937, the Court bill was dead. The “Little TVAs” bill would follow it to the grave—the first blow to the development state. Roosevelt would soon have the Court he wanted in any case. Roberts’s switch remained permanent; Van Devanter was replaced by the ardent New Dealer, Hugo Black (Joe Robinson having died in the interim); and within two and a half years, Roosevelt was able to send up four additional New Dealers to join him. The Court would never again place major obstacles in Roosevelt’s path. This allowed Roosevelt in later years to describe the whole episode as a case of losing the battle but winning the war. By 1940, Roosevelt had indeed won the war on the legal front. But the 1937 battle cost him dearly in the wider, political war. It might well be asked if a better epitaph for the episode would be that Roosevelt lost the Court battle, won the constitutional campaign, but lost the political war.29 The Roosevelt coalition in Congress had been shattered, a conservative alliance between Republicans and conservative Democrats was forming, and suspicions about Roosevelt were abroad in the land as never before. Where legal obstacles to the New Deal once stood, political obstacles now appeared.

Congress and the “Dictator Bill” The suspicions about dictatorship raised in the Court battle were clearly beginning to alter perceptions of the executive reorganization plan. In early May, Lippmann, outraged by the Court bill, changed his mind on the reorganization plan. The plan had “many attractive features, but contains also the most extraordinary proposal for the extension of personal government which has ever been seriously proposed in this government.”30 Business groups began to change their mind in this period as well, mak-

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ing frequent reference to European precedents. As Richard Polenberg notes, “[I]n May the New York Chamber of Commerce issued a vitriolic attack which set the tone for future business criticism. Some of the recommendations of the president’s committee were sound, but full acceptance would give the president ‘such tremendous control over the economic and social activities of the people of this Nation, that it would be only a short step to a dictatorship, and a form of government similar to that prevailing under the Communist, Fascist, or Nazi systems.’ ”31 The chamber’s Monthly Bulletin went on to specifically object to all the features of the bill that increased central control, which was much of it. The U.S. Chamber of Commerce echoed these sentiments: “We oppose the growth of centralization which in the end may lead to some form of totalitarian government.”32 Giving the president control of executive agencies, argued a public utilities publication, would mean that “a long step has been taken toward the centralization of administrative powers which in turn is a long step toward dictatorship.” “By 1938,” writes Polenberg, “spokesmen for business had concluded that ‘the centralization of power always ends in tyranny.’ ”33 Yet even after the debacle of the Court plan, it still looked as if the executive reorganization plan would go through. Roosevelt’s commanding majorities were not yet spent, and the public not yet aroused. The plan was taken up by Congress at the end of July. The Senate lost time on procedural disagreements and had to put off the bill until the new year. The House made more progress, however. Opponents of the plan tried to whip up a dictator cry, but without success. Portions of the plan coming up for vote passed easily: 260–88 and 283–76.

A Sudden Hysteria No one expected a matter as recondite as administrative organization to attract much interest from the general public. But two developments worked to give it sudden salience. One was a sudden and deep downturn in the economy in the fall of 1937, hitting bottom in April 1938 just as the bill came up for final vote. In a series of columns, Lippmann argued that reform was getting in the way of recovery—a theme then picked up by many others. Although executive reorganization had nothing to do with the economy per se, it was nevertheless argued that reorganization was part of reform, not recovery, and should be scotched, or at least postponed to more prosperous times. As one citizen complained, he and his neigh-

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bors “feel that for the time being we have had enough new schemes that are intended to work miracles, but instead make things worse, so for God’s sake don’t let us down now. KILL THIS REORGANIZATION BILL.” Scrapping the reorganization plans, many opined, would “restore business confidence.” In the New Deal view, reform was instrumental to recovery. Increasingly, they were coming to be seen as opposed.34 The other, much more significant development giving the bill salience were the disturbing headlines coming from Europe. As Polenberg notes: Events in Europe during the month of March 1938 produced horror and dismay in the United States. Newspaper headlines on three successive days trumpeted German conquests: “Nazis Seize Austria After Hitler Ultimatum . . . Hitler Enters Austria in Triumphal Parade . . . Austria Absorbed into German Reich” . . . In Spain Loyalist resistance to Franco was near collapse. In Russia the purge trials culminated in death sentences for eighteen former Communist leaders. Democracy seemed feeble in the face of totalitarian triumph.35 The NCUCG took advantage of the hothouse atmosphere to launch another barrage of mail—850,000 pieces of mail in two months, sent out to the same 700,000 or so “influentials” identified in the Court campaign— warning that the reorganization bill would “establish absolute control by one man of government, finance, and business.” Other opponents of the administration joined in. The Hearst papers churned out editorials against the bill. Father Coughlin, the radio preacher, made opposition to the bill his leading cause, even going so far as to claim that the president, with his new powers, intended to seize all the church schools in the country (a claim about which Roosevelt later wryly commented, “I don’t know what the president of the United States was going to do with them when he did grab them”).36 As April approached and the barrage of accusations intensified, near hysteria gripped the nation. A businessman friendly to the president wrote to warn him that his employees were being taught by the papers “to unconsciously group four names, Hitler, Stalin, Mussolini and Roosevelt.” A Gallup poll on March 30 showed only 20 percent of the public supporting the bill, with 35 percent opposed and 45 percent undecided. Even among Roosevelt backers, support for the bill was polling a mere 36 percent, compared to large majorities in support of other leading bills and policies. The intense feelings were almost all in opposition—the congressional mail was overwhelmingly against the plan.37

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It did not help matters when on March 28 Roosevelt sacked Arthur Morgan, chairman of the TVA, to keep a leadership dispute from boiling over. Viewed soberly, the move might have allayed fears about the centralizing ambitions of the New Deal. In firing Morgan, Roosevelt was effectively siding with TVA commissioners who rejected Morgan’s expansive view of the agency as a regional planning authority in favor of a narrow view of it as a public power and fertilizer company. The TVA would henceforth scrupulously avoid using the word “plan” in its published materials—a change indicative of the broader retreat of Roosevelt’s nascent development state. But the sacking, coming when it did, only added to the paranoia about Roosevelt’s dictatorial ambitions, as it signified presidential interference in what was supposed to be an independent body (even though there was no other available mechanism for resolving the dispute).38 In late January, James Roosevelt had felt it necessary to deny on national radio that his father sought to make himself a dictator. So great was the cry against the bill by the end of March that finally, in a truly surreal act, Roosevelt himself, at one o’clock in the morning of March 31, released a letter to reporters denying that he wanted to become a dictator, or that the bill could make him one: As you well know I am as much opposed to American Dictatorship as you are, for three simple reasons: A. I have no inclination to be a dictator. B. I have none of the qualifications which would make me a successful dictator. C. I have too much historical background and too much knowledge of existing dictatorships to make me desire any form of dictatorship for a democracy like the United States of America.39 Such a strange disavowal, issued under such odd circumstances, only fanned the flames. By this time, congressional debate on the bill was echoing the accusations coming from the presses. Much of this was opportunistic—“You talk about dictatorship,” fulminated Congressman Charles Eaton. “Why, Mr. Chairman, it is here now. The advance guard of totalitarianism has enthroned itself in the Government in Washington!”—but some of it at least was in earnest. “Germany once had a good government,” warned Representative Bert Lord of New York, “but, little by little, they gave all power and authority to their president. If we pass this bill [Roosevelt] will have

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powers to correspond to the powers given to President Hindenburg. Hindenburg did not become a dictator, but Hitler did.” Others, such as Senator Burton Wheeler, thought the fears exaggerated, but still contended that it would be most unwise “for the Congress to make a further delegation of power at this particular time, when a certain form of hysteria is sweeping over the United States.”40 In congressional hearings, Brownlow and the other members of the president’s committee defended the various provisions of the bill. “The Brownlow Committee’s arguments for more effective national management, for stronger leadership, for control of the political forces that made congressional prerogatives a deterrent to effective government, were all classical progressive arguments,” notes Barry Karl, “but in the context of the events of the period they were pictured as attacks on democracy itself.” Gone were the days when Barron’s could muse (in February 1933) that “a genial and lighthearted dictator might be a relief from the pompous futility of such a Congress as we have recently had.” The face of dictatorship was now known, and it was the face of Hitler and Stalin. The classical liberal association of democracy with the legislature and of the executive with tyranny, or at least the possibility of tyranny, was reasserting itself in reaction to the rise of totalitarianism in Europe.41 The day before the final vote, in response to a call from Father Coughlin, contingents of “Paul Reveres” from up and down the East Coast descended on Washington to stage a large rally against the “dictator bill.” A flood of telegrams poured in, much of it ginned up by the NCUCG. Many congressmen feared that defying an agitated public in an election year would be political suicide. On April 8, 1938, in a close vote, the bill was defeated. A president who eighteen months before had seemed unstoppable, had been unable during those eighteen months to put through a single piece of major legislation save for a $1.5 billion work relief appropriation. As one commentator put it, “no President with his party in control of both legislative bodies ever had his plans as completely kicked to pieces.”42 Roosevelt appeared genuinely mystified by the result of the reorganization vote. Many others who had been caught up in the debate looked back on it with perplexity, too. With the return of calm, Roosevelt determined to introduce a new reorganization bill in 1939. But the bill that finally passed—drawn up by Congress with no input from the Brownlow Committee—was a shadow of its former self. Gone was any change to the Civil Service Commission or the Comptroller-General. No mention was

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made of the NRPB, effectively denying it statutory standing. Roosevelt did get his six assistants, and he received the right to draw up a plan to reorganize executive agencies, subject to congressional veto. Brownlow and his associates made good use of this last provision, creating at the president’s request a plan that, importantly, established the Executive Office of the President, and relocated within this office the Bureau of the Budget and the NRPB. Congress, somewhat remorseful for its treatment of the president’s original bill, let the reorganization become law.43 But the real damage had been done. The executive branch remained an undisciplined concatenation of separate power bases, answering to sundry internal and external interests. The NRPB, which was to be the centerpiece of a new development state, failed to secure for itself a proper legal existence and could henceforth be starved to death by congressional refusal to appropriate operating funds. Worse, Roosevelt now perceived it as a potential liability and would expend no further political capital on its behalf.

7 The Retreat from Cooperation to Fiscal Compensation

In the very same week in which the fate of the executive reorganization bill was sealed (the first week of April 1938), so, too, was a new course for American state-economy relations set. The coincidence in timing meant that many of the same forces that sunk the reorganization plan also buffeted the economic debate, helping determine its direction. Back in 1935, amid the wreckage of the Schechter decision, one of the many “struggles for the soul of the President” began regarding the proper direction of economic policy. As before, the main antagonists were the Brandeisian and neo-Brandeisian heirs of the New Freedom, versus the cooperative commonwealth men, heirs of the New Nationalism. Felix Frankfurter was frequently at Roosevelt’s side in this period, pushing the Brandeis program for cutting big business down to size: progressive taxation on corporate bigness, a break up of the utility holding companies, and a general antitrust offensive.1 Roosevelt did, in fact, take up the first two of these in the Second Hundred Days. He also began to make more use of Frankfurter’s “boys,” especially Thomas Corcoran and Ben Cohen, and he sided with the Brandeisians on decentralized administration of components of the Social Security Act and the TVA. From this it has often been inferred that the period marked the beginning of a Second New Deal in which the Brandeisians were in the ascendant. Many Brandeisians themselves shared this sense, but the sense of departure was exaggerated.2 Roosevelt, as a former governor, was always favorably inclined toward decentralized administration of national programs. The young Harvard lawyers were turned to not so much because of their ideological views than because of their excellent legal craftsmanship, their skill at legislative management, and their freedom, as fresh faces, from the political assaults being directed at members of the Brain Trust. Also, the initiatives on progressive taxation, utility regulation, and social security, far from being new depar146

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tures, were on the New Deal agenda from the beginning.3 In any case, by the time the “Brandeisian” bills had made their way through Congress, it was without the tax on corporate bigness in the Wealth Tax Act, and without the “death sentence” provision in the Public Utilities Holding Company Act. This is not to say that the Brandeis approach was not getting traction. It clearly was. But throughout this period, it remained no more than one of several approaches vying for influence. At the same time that Frankfurter was working on the president, the cooperative commonwealth men were working on him, too. Despite the lackluster performance of the NRA, Roosevelt had yet to relinquish his affection for the cooperative idea. The ever-resourceful Rexford Tugwell quickly drew up a plan to recreate the NRA through more ostensibly voluntary mechanisms. Roosevelt didn’t bite, but in September 1935 he made a move in this direction, appointing George L. Berry, a former NRA administrator, to the position of “Coordinator for Industrial Cooperation,” in order to “induce industry and labor to do voluntarily what the NRA [had] made them do,” in the words of Newsweek.4 (The conferences of businessmen, trade union leaders and consumer representatives Barry organized were abject failures, however.) The overhead planners were also at work. In late 1934, in response to Gardiner Means’s report on “administered prices,” a group of government labor and agricultural economists formed an interdepartmental committee on the Increase in Production and Employment to generate ideas on policy interventions that would induce corporations to switch to a low cost/high volume business strategy.5 One of the more ambitious proposals to come out of this was drawn up by Mordecai Ezekiel, the agricultural economist who had helped frame the AAA. His proposal was, in effect, to adapt the instrumentalities that the AAA had used to decrease production in the farm sector, and use them to increase production in the industrial sector. It was, as he put it, “AAA in reverse.” The plan was ingenious, but was also vast and intricate.6 With advice coming from every direction, all imploring that a firm commitment be made, Roosevelt committed to temporizing. The reasons for this were numerous, ranging from the continuing obstacle posed by the Supreme Court, to the fact that the election season was approaching and bold departures were better left for the following year (1937). The more basic reason, however, was a fundamental uncertainty on Roosevelt’s part about what the real problem was. There was a part of Roosevelt that believed that the worst problems of the economy stemmed from nothing

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more than businessmen behaving badly. The Brandeis program appealed to this side of Roosevelt, for it would force businessmen to behave better. But there was another part of Roosevelt, expressed in his Commonwealth Club address and elsewhere, that believed a Rubicon had been crossed in the economy, and that the system of free competition—a system that had always shortchanged nonpecuniary social values—could no longer be relied on for growth or stability. The “cooperative” approach appealed to this side of Roosevelt, for it promised both greater stability and a greater concern for nonpecuniary values. Programs for planned public investment appealed to this side of Roosevelt as well, and for the same reasons. With economic recovery beginning to take hold in 1936 and strengthening through the first half of 1937, Roosevelt could afford to put off a decision on basic economic policy, focusing his energies instead on the preprogram of executive and judicial reorganization. But with the onset of recession in the fall of 1937, the problem of recovery returned, and so did the problem of the president’s indecision. The recession that struck in the autumn of 1937 was one of the sharpest and deepest in U.S. history. National income fell 13 percent, production dropped 33 percent, manufacturing employment dropped 23 percent, and payrolls declined by 35 percent. Coming as it did in the middle of what was only a partial recovery from 1933, it meant that conditions returned almost to their lowest depth during the Depression. The sudden downturn caught everyone by surprise, including Roosevelt’s advisers. Despite this, every faction believed that it understood the cause, that the policies of other factions were partly to blame, and that its own approach had been vindicated by the event. Secretary of Treasury Henry Morgenthau Jr., the defender of economic orthodoxy, attributed the decline to business anxiety over New Deal measures, and called for balancing the budget and reducing taxes to restore business confidence. The neo-Brandeisians, in contrast, gave vent to the idea that the recession had been brought on by a “capital strike” organized by big businessmen trying to discredit the New Deal, and they proposed an aggressive antitrust campaign that would cripple the ability of business to maintain profits while holding down production (in other words, cripple their ability to “administer prices”). Among cooperativists, Donald Richberg, former assistant to Hugh Johnson and Johnson’s replacement as NRA administrator in 1934, encouraged the president to repudiate the confrontational tactics of the Brandeisians and reembrace “the philosophy of the N.R.A.”—the philosophy of “peaceful, democratic cooperation.” The overhead planners were also still in the game. In Congress, Ezekiel’s plan

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for industrial expansion through overhead planning was given legislative form as the Industrial Expansion Act, and Tugwell encouraged Roosevelt to support it. (He did not, and the bill made little progress.)7

New Analysis: The Fiscal Remedy Late in 1937, these familiar policy contenders were joined by a new one. Ever since World War I, a smattering of economists and publicists had been advocating government spending as a tool for recovery and growth. In subsequent years, this idea would be associated with the writings of John Maynard Keynes. But in the 1920s and 1930s, a number of homegrown variants were more salient. William Trufant Foster and Waddill Catchings were the best known public promoters of the idea. Within the administration, Harry Hopkins, formerly of the CWA, and Mariner Eccles, of the Federal Reserve, were the idea’s most prominent supporters. A modest version of this view was also accepted by those on the NRPB, where Wesley Mitchell had once served. If underconsumption was the cause of the Depression, these “fiscalists” reasoned, then one way out— the easiest way, the way that required no structural intervention—would be for the government to serve as a consumer-of-last-resort, taking up the slack in the economy through government expenditure. Government would compensate for the failure of the private economy to generate adequate investment and income. Roosevelt, whose years managing the Hyde Park estate made him an instinctive budget balancer, early on dismissed this line of argument as “too good to be true.” But a young administration economist now gave the thesis an arithmetic specificity that greatly increased its salability, and in the early months of 1938 it rose from the status of an obscure idea lurking in a few corners of the administration to a coequal policy competitor.8 The young economist was Lauchlin Currie. Currie initially made his name as a critic of the Federal Reserve’s contractionist monetary policy in the years after 1929. Despite his past research on monetary theory, and his official position in the Federal Reserve, Currie’s real interest was in the possibilities of deficit spending, and he began a series of statistical investigations on government expenditures, looking past the size of the federal deficit to the actual contribution of government expenditures to aggregate demand. During the recession of 1937–1938, when the administration was casting about both for an explanation and a remedy, Currie produced a striking statistical series showing that, beginning in August 1937, “the

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net federal government contribution to community expenditure” had turned negative for the first time since 1931. Veterans bonuses had been fully paid by the end of 1936; meanwhile, the social security payroll taxes had begun, drawing off income, with no payouts scheduled until 1942. The net effect was a drop in aggregate spending at a time when the recovery was soft, and it took little imagination to infer that this bore primary responsibility for plunging the country back into recession. Currie was assiduous in drawing attention to the significance of his findings, and he found many converts. Alvin Hansen was one. Initially critical of the similar ideas of Keynes, he came around after seeing Currie’s evidence and went on to be the administration’s leading proselyte for the fiscal approach. Currie’s analysis also found many converts among the neo-Brandeisian regulators—Leon Henderson proved an especially effective ally—as well as among the corporatists and overhead planners, such as Jerome Frank and Ezekiel.9 Structural and fiscal approaches were, at this stage, not seen as rivals but as complements—government spending would address the immediate need for raising purchasing power, while structural reform would address the long-term problem of administered prices that kept purchasing power chronically emaciated. Some administration members with close ties to business also found the Currie program at least tolerable, seeing it as less offensive than any of the alternative proposals for structural reform. Not everyone was persuaded by the argument, however. Roosevelt was presented with a copy of the Currie brief in November 1937. He expressed admiration for it. Then he proceeded to lay plans with Morgenthau to balance the budget.10 Beyond budget balancing, Roosevelt’s basic instinct when confronted with yet another economic crisis was still to pursue the World War I, cooperative approach. In his January 1, 1938, annual message to Congress, Roosevelt mentioned “practices and abuses which demand correction through the cooperation of capital and labor with the government.” At a press conference three days later, he clarified that, while he was not “advocating the immediate reenactment of the NRA,” he was interested in reviving its central idea— modifying the antitrust laws so that the “heads of all the companies in a given industry” could “meet around a table to find out, with the help of government, what the demands are, what the purchasing power of the country is, what the inventories are” so that they “won’t overproduce.” At the instigation of Richberg, Berle, and Tugwell, Roosevelt conducted a series of closed-door meetings through January and February with a select group of

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industrialists, financiers, and labor leaders to clear the air and to see what might be done. Signs were positive until external criticism from both the left and the right rocked the meetings, and the talks collapsed. Indecision returned.11 Finally, the pressure for action became unbearable. The publicistic activities of the NCUCG and other groups, though directed primarily at the executive reorganization bill, seemed to be having a spillover effect on how the public viewed the economic situation. NCUCG mailings made prominent reference to the “Roosevelt recession” and, mixed in with their call for the public to rise up in defense of the Constitution, called for the public to rise up in defense of free enterprise. Whatever the cause of the sea change, polls in March showed that the public was coming to blame the recession on the president and the New Deal. A sense of what the international consequences of American failure would be also began to weigh upon the administration. In February, Keynes wrote the president that he was “terrified lest progressive causes in all the democratic countries should suffer injury, because you have taken too lightly the risk to their prestige which would result from a failure measured in terms of immediate prosperity.” The news of the German Anschluss also shook the administration. New Dealers—Roosevelt included—readily ascribed the spread of fascism to the inability of the Western democracies to end the Depression. “I urge that you provide the democratic leadership that will make our system function,” wrote a worried Eccles to the president on the day of the news. “Only in that way can the growing threat of Fascism be overcome.”12 Then, on March 25, the stock market suffered another crash. The president had just left for his vacation home in Warm Springs, Georgia. There, a small knot of economic advisers—notably Hopkins, Henderson, and Beardsley Ruml—now converged, all recognizing the imperative of immediate action, and all, for the lack of any deeper consensus, intent on winning over the president to the fiscalist notion of deficit spending. With Hopkins acting as conduit, arguments for a spending program were passed to the president. Of these, one document stands out— the famous Warm Springs Memorandum. A mere seven pages in length, the memorandum was something of a collective product, but Ruml, of the NRPB, was its principal author, and it reflected his emphasis on compensatory spending as a way to foster economic stability free from coercive intervention in the operation of industry or the market.13 The memo’s key section, addressing policy alternatives, began with the following declaration:

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National contribution to purchasing power may take two forms, a contribution to production or a contribution to consumption. National intervention to stimulate production is the method of the totalitarian state, Russian, Italian and German. It is the method of the planned economy, popularly so-called, the method of Alexander Hamilton and of the Payne-Aldrich Tariff. It involves in essence a determination on the part of some agency with public authority that a particular commodity or service is required in the national interest; the industry is then stimulated by land-grant, franchise, tariff, or subsidy; out of the activity of the production comes purchasing power. National intervention to stimulate consumption is the democratic method, since purchasing power freely in the hands of consumers must be won by competition. The form of the industrial pattern, therefore, is determined not by the judgment or caprice of a few, but by the whole culture expressing itself through actions of individual consumers.14 Roosevelt was finally persuaded to sign on. We will never know with certainty what induced Roosevelt—a lifelong believer in budget balancing, and a convert since the Depression to the notion that public intervention in production policy was the key to economic stability—to make this famous U-turn and embrace what he began to call a “compensatory fiscal” program of recovery through deficit spending. But it seems significant that the fireside chat of April 14 that he used to present the program (a very modest fiscal stimulant of $3 billion in new expenditures and loans for public works) to the public drew extensively on the Warm Springs Memorandum. The title subsequently given to the chat, lifted from a line within it, was “Dictatorships Do Not Grow Out of Strong and Successful Government, but Out of Weak and Helpless Ones.”15 The significance of this moment, although considerable, should not be exaggerated. As the fate of so many New Deal initiatives shows, the mere announcement of a new governance project does not guarantee its successful institutionalization. Fiscalists from the start realized that the existing apparatus of government was inadequate to their needs. As Currie wrote in the conclusion of his original brief: If fiscal policy is to be truly compensatory, a far greater degree of flexibility in expenditures and receipts must be possible than is now the case. It may very well be that much flexibility cannot be achieved within the budget. A large proportion of the taxes are levied on the previous year’s income and in accordance with prior enactments. The

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bulk of expenditures is determined by appropriations made far in advance of the period to which they apply. It may be that the solution lies in securing flexibility in large part outside the regular budget.16 Fiscalism had received the presidential nod. Now would come the fight for the state apparatus to render it effective. The administration’s retreat to fiscalism did not necessitate the setting aside of “cooperative” and “planned” solutions to economic instability. But this is what it meant in practice. A basic commitment to the principle of market competition was being made. The Warm Springs Memorandum, it is worth noting, stressed that “competition is indispensable and must be maintained.” It did not follow this up, however, with a call for an antitrust campaign (and here we see the difference between what Ruml, as a former businessman, was prepared to advocate, versus what Henderson might have written). Rather, the memo made the case that the maintenance of purchasing power would indirectly help sustain competition: “In a shrinking market it is difficult to avoid combination to control price and output; in an expanding market it is much easier to deal with such combinations.”17 Neo-Brandeisians such as Henderson believed much stronger medicine was needed than this to enforce market competition. Having backed the fiscalist departure, they now pushed to give teeth to the commitment to market competition—to institute a program of antitrust prosecution and regulation to destroy the capacity of business to administer prices. For a brief period, it looked as if they would have their way. On Roosevelt’s train ride back from Warm Springs, Ben Cohen and Robert Jackson, two of the administration’s leading market restorers, presented the president with the draft of an antimonopoly message for Congress. The president, with some hesitation, gave it his approval. “Private enterprise is ceasing to be free enterprise,” the message, as delivered, ran, “and is becoming a cluster of private collectivisms: masking itself as a system of free enterprise after the American model, it is in fact becoming a concealed cartel system after the European model.” The main cause for concern was economic, “the fact that the combined effect of the monopolistic controls which each business group imposes for its own benefit, inevitably destroys the buying power of the nation as a whole.” But added to this economic concern was a political concern that was a good indication of the shifting political and ideological landscape. “A discerning magazine of business,” the message went on, “has editorially pointed out that big business collectivism in industry compels an ultimate collectivism in government.” This was, in slightly al-

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tered language, the point that New Nationalists had been making for three decades, and they welcomed it: concentration and control. But the alteration in language, however slight, was highly significant, and gave an old formula a new, decidedly negative valence. The “concentration of public power in the government” now appeared, even to erstwhile New Nationalists, to be as much of a threat to the public as the concentration of private power, and it was used by the neo-Brandeisians as a powerful new argument as to why monopoly power must be curbed: to forestall the march toward more totalitarian forms of state power. The “basic thesis,” the message concluded “is not that the system of free private enterprise for profit has failed in this generation, but that it has not yet been tried.” It looked like Roosevelt would be launching a latter-day New Freedom after all.18 The message outlined no specific program, however. It merely drew attention to the problem and proposed the formation of a committee to study it. This was not meant to be a consignment to death by committee. The investigative committee that was formed—the Temporary National Economic Committee (TNEC)—was launched with great expectations, both on the part of its supporters and its detractors. But many things conspired against its success. For one thing, the reformist mood of the country was rapidly eroding. Three weeks before the congressional elections of 1938, a Gallup poll registered that, in contrast to the early years of the New Deal when the public had supported “regulation of business,” there was now “a growing sentiment for removing many of the restrictions on business.”19 The election would confirm the finding. Even more fateful was the arrival of war. The mobilization of U.S. industry for war required the cooperation of industry, and this militated against serious antitrust or regulatory measures. By the time it packed up in March 1941, the TNEC had issued many learned reports and a long list of sensible recommendations, none of which seemed imperative and none of which were implemented. As Alan Brinkley writes, “within a few years, concern about monopoly and commitment to expanding the regulatory and administrative functions of the state had largely disappeared from liberal rhetoric. They were becoming . . . ‘one of the faded passions of American reform.’ ”20 The praise for market competition contained in Roosevelt’s message to Congress would endure; the program for its enforcement was shelved.21 This left fiscal compensation as the banner economic policy of the New Deal. Critics of the administration’s 1938 spending initiative saw in it an attempt to buy the upcoming election. This was not the intent, nor was it the outcome. Expecting to make only modest gains, Republicans gained

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eighty-one seats in the House and eight in the Senate—enough to guarantee the supremacy of the conservative bloc over the New Dealers in Congress. The Philadelphia Inquirer regarded it “a definite turning of the tide away from dictatorship and toward traditional American liberty.”22 A jaundiced formulation, to be sure, yet one that pointed to an important reality. All New Deal initiatives would be facing an uphill battle from now on.

The Intellectual Sea Change The retreat of the general public from radical reform was mirrored in intellectual circles. Perhaps the most significant early defector from the planning idea was Walter Lippmann, one of the country’s leading intellectuals and its most influential columnist. In his early career, Lippmann had been an eloquent, if hazy, advocate of the planning concept. The very title of his second book, Drift and Mastery, was a plug for planning. As he glossed it, “this is what mastery means: the substitution of conscious intention for unconscious striving. Civilization, it seems to me, is just this constant effort to introduce plan where there has been clash, and purpose into the jungles of disordered growth.”23 The irrationalism surrounding World War I shook Lippmann’s faith in democracy and the common man, but proportionately strengthened his faith in experts and expert guidance. The vigor and confidence with which Roosevelt addressed the Depression crisis of 1933 brought him into full support of the president and his programs, despite having the previous year dismissed Roosevelt as thoroughly unqualified. “For the idea of an automatic return to normalcy,” he wrote in the spring of 1933, “we have to substitute the idea of a deliberate attempt to plan, to organize, and to manage our own economic system.”24 Lippmann, however, was far ahead of the crowd in thinking about, and worrying about, the new phenomenon of “totalitarianism”—a term that he picked up from the Italian literature on Mussolini and that he might even be credited with introducing to the United States.25 Largely on the basis of these misgivings, he supported the more invasive programs such as the NRA and AAA only on the assumption that they were emergency measures, to be abandoned after recovery. A long conversation with Keynes in 1933, however, ultimately convinced Lippmann that they were not necessary even as temporary measures. In his precocious Godkin lectures of 1934 (published as The Method of Freedom), Lippmann drew a distinction between the “absolute collectivism” of a “directed economy” and the “free collectivism” of a “compensated economy.” Laissez-faire was “dead” and

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government intervention indispensable, Lippmann argued. But there were two ways to intervene. In a directed economy, of which totalitarian economies were the extreme form, the state used compulsion in the form of central planning and economic regimentation. In a compensated economy, the state left economic decisions in private hands, intervening only to “redress the balance of private actions by compensating public actions”— business regulation, social insurance, a safety net, and, especially, manipulation of federal spending, taxation, and interest rates: In substance, the state undertakes to counteract the mass errors of the individualist crowd by doing the opposite of what the crowd is doing: it saves when the crowd is spending too much; it borrows when the crowd is extravagant, and it spends when the crowd is afraid to spend . . . it becomes an employer when there is private unemployment, and it shuts down when there is work for all.26 Yet how could elected representatives be persuaded to curtail spending and contract credit just when the public and industry most wanted to spend? Or to spend precisely when government receipts were falling off? Lippmann doubted they could be. So like Currie—yet for reasons more prescient than those of Currie, as the history of postwar “Keynesianism” would prove—Lippmann argued that a fiscal authority with fairly wide discretion would need to be created within the government and insulated from “transient opinion and organized pressure.” In other words, Lippmann had not changed his view that public-spirited experts and state autonomy were needed to save democracy from its irrationality. Only the mode of intervention had changed. The compensated economy was not laissez-faire, and it was not totalitarianism. It was the middle way between them. Just as key members of the Roosevelt administration were themselves coming around to compensatory fiscalism, Lippmann pulled back even further from statism. The Good Society, appearing in 1937, was intended—and received—as a blast against the New Deal, even though many of the specifics of the New Deal that it blasted—the NRA was its especial target— had already passed from the scene, and many of the individuals that it blasted—Lewis Mumford, Stuart Chase, George Soule—were not New Dealers but overhead planners to the left of the New Deal. The book was written under the heavy influence of F. A. Hayek and his teacher, Ludwig von Mises, as Lippmann acknowledged in a lengthy footnote.27 These were men of the “Austrian school” of economics who, over the course of a drawn out debate with European socialists, had elaborated the position that eco-

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nomic planning is a slippery slope to total social control by an omnipotent state. With the rise of the totalitarian dictators, these views gained a much wider audience. The facts out of Russia, Italy, and Germany told one story—that dictators seized power first, amid economic chaos and distress, and imposed economic collectivism afterward. The theory told another story—that totalitarian dictatorship was the logical outcome of the first small steps in economic planning. Lippmann’s anxiety about the spread of totalitarianism abroad, and his fears about the potential for its spread in the United States (the exploits of Huey Long in Louisiana had struck Lippmann as particularly alarming), led him to project this theory onto the United States.28 “Throughout the world, in the name of progress,” the book began, “men who call themselves communists, socialists, fascists, nationalists, progressives, and even liberals, are unanimous in holding that government with its instruments of coercion must, by commanding the people how they shall live, direct the course of civilization and fix the shape of things to come.” The New Deal was embarked on a program of “gradual collectivism,” but there was no logical stopping point on the path from this to total collectivism. New Dealers do not mean to midwife totalitarian dictatorship. They seek to move democratically, gaining the ascent of the public for each collectivist experiment. But democracy and planning are ultimately irreconcilable. Democracies may set Five Year Plans, but popular opinion changes, and “unless that opinion is free to change, and in changing to alter the policy of the state, there is no democracy.” The result is a rapid succession of plans, which “would be no plan at all.” In conclusion, “a democratic people cannot have a planned economy, and . . . in so far as they desire a planned economy they must suspend responsible government.” Unlike Lippmann’s Godkin lectures, The Good Society refused to draw any distinction among kinds of planning or kinds of collectivism. As a consequence, the New Deal found itself joined at the hip with fascist Italy, Nazi Germany, and communist Russia.29 Lippman’s arguments read like nothing so much as a screed for economic laissez-faire, which was not surprising, given their lineage. Yet in the second half of the book, Lippmann continued to insist that laissez-faire was bankrupt. He offered in its place a new “agenda of liberalism,” yet one that had a very familiar ring: more education; more conservation; a breakup of holding companies; a ban on monopoly; an excess-profits tax on corporations to keep capital moving; stricter liability for false advertising; and an equalization of income through taxation, with proceeds spent on public

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health, public education, public works, and social insurance. It sounded, in fact, very much like the New Deal. The crucial difference, Lippmann held, was that he would have these ends secured juridically rather than administratively: adjust the “bundles of rights and duties” that constitute property, contract, and corporate law so that these ends are better served, and then leave enforcement to the common law courts. Adjustment of these rights and duties may need to be done by expert commissions, Lippmann conceded, but their work would be subject to review by courts and by the legislature conducting itself like a court. Lippmann also did away with the notion of an independent fiscal authority, although without jettisoning the Keynesian analysis—economic stabilization would be secured through a leveling tax policy, eliminating “oversaving” at the top end and underconsumption at the bottom end. The book was, in short, a flight from the administrative state, triggered by fear of the totalitarian state. But Lippmann did not seek shelter in laissezfaire or popular democracy. He still distrusted both. Instead he sought shelter in courts and a hazy, evolutionary concept of “Higher Law.” The Good Society was, as Henry Steele Commager put it, “an effort to find not so much a compromise as an escape, and the escape was into that eighteenth century past which had laid so firmly, as Lippmann felt, the foundations of true liberalism.” Not inconsistent with this description, although more charitable, Arthur Schlesinger Jr. identified it as an updating of the New Freedom.30 Lippmann’s former compatriots on the Left widely denounced the work as, in Dewey’s words, giving “encouragement and practical support to reactionaries.”31 Yet, while few of the Left would make the about-face of Lippmann, very soon almost all were themselves pulling back from their earlier positions, usually quite far. News about Stalin’s periodic purge trials in the mid- to late 1930s shook the confidence of many in the Soviet experiment. Dewey received his own wake-up call about what was happening in the Soviet Union in mid-1937, when he conducted his extensive interviews with Leon Trotsky as part of his inquiry into Stalin’s charges against him. In a news release accompanying his acquittal of Trotsky, Dewey delivered a damning exposé of political conditions in the Soviet Union. “Next time anybody says to you that we have to choose between Fascism and Communism,” he concluded, “ask him what is the difference between the Hitlerite Gestapo and the Stalinite G. U. so that a democracy should have to choose between one or the other.”32 Dewey soon embraced the totalitarian concept and began issuing his own cautions about economic reform:

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Belief in . . . taking industry out of private hands is naïve until it is shown that the new . . . hands to which it is confided are so controlled that they are reasonably sure to work in behalf of public ends. I am not saying that the problem cannot be solved democratically nor that “socialization” of industry is bound to be followed by . . . regimentation . . . What I am saying is that the issue of democracy has taken a new form, where not much experience is available about the relation of economic factors . . . to democratic ends and methods.33 Here was the root of the sudden caution laid bare: a new uncertainty about the relation between the “economic factor” and democracy. Democracy was something American radicals had always taken for granted. During the Progressive era, one of the most ideologically potent arguments in favor of public ownership was the notion that it represented the march of democracy. The nineteenth century was given to democratizing the polity; the twentieth century would be given to democratizing the economy, with “economic democracy” at the eschaton. But the Soviet example raised unsettling questions about this assumption and sparked a broad reevaluation of the relationship between the economy and the polity. Because of their more intimate familiarity with what was happening with Soviet communism, intellectuals of the far Left provided some of the most dramatic cases of reversal and retreat. Max Eastman was a case in point. Having enthusiastically followed the course of the Russian revolution, he was one of the first to pull up short. Russia provided the one example of the complete collectivization of the economy, and the result had been “the morbid and monstrous overgrowth of the state.” In Germany, where agriculture was left alone but industry nationalized, the result had been much the same. Stalin did not betray the revolution, Eastman became convinced. He fulfilled it. “Stalin’s totalitarianism” was “an inevitable . . . political and cultural accompaniment of . . . collectivization.”34 Eastman soon became associated with the Partisan Review, a journal that had undergone its own recent conversion. The journal began its life in 1934 as an organ of the communist John Reed clubs. In 1936, the editors broke with the Communist Party and in 1937 relaunched the journal on an independent basis. The initial issue contained the editorial statement that, while “formerly associated with the Communist Party . . . our reappearance on an independent basis signifies our conviction that the totalitarian trend is inherent in that movement and that it can no longer be combated from within.”35 It was an early use of the totalitarian concept. From thenceforth,

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the journal became a center of anti-Stalinism and an important propagator of the totalitarian interpretive perspective. After the war, it became an important clearinghouse for Cold War liberal analysis more generally. Previously, Leftists, following Marx, had tended to look on the state as a corporate board of capitalists. With the rise of the totalitarian dictators, they began to see the state as an independent force capable of dominating the economy as well as the polity. Placing economic decisions in political hands now appeared as an invitation to this kind of aggrandizement. As Reinhold Niebuhr observed, after shedding his own Marxism: The rise of totalitarianism has prompted the democratic world to view all collectivist answers to our social problems with increased apprehension. Since there are no forms of the socialization of property which do not contain some peril of compounding economic and political power, a wise community will walk warily and test the effect of each new adventure before further adventures.36 Progressives and liberals were making reevaluations no less than the Leftists. Whereas American Leftists had praised democracy and argued for its extension to the economy, expert-progressives had been cool toward democracy, arguing instead that it must be supplemented with intelligent administration. But as the case of Lippmann presaged, fears of totalitarianism began to cast a pall over administration and administrative planning. The publication in 1941 of James Burnham’s The Managerial Revolution caused a considerable stir, and enjoyed considerable approval, in liberal circles. A former Trotskyite, Burnham now claimed that the logic of history was not class struggle but the concentration of power in managerial organizations, of which the state was the biggest of them all. And he ominously noted, “those nations—Russia, Germany, and Italy—which have advanced furthest toward the managerial social structure are all of them, at present, totalitarian dictatorships.”37 Even more striking, questions were raised about the basic compatibility of social scientific expertise with democracy. This was an issue that sparked great soul-searching among thoughtful social scientists. At a well-attended multidisciplinary conference on these issues, Gregory Bateson, commenting on a paper from Margaret Mead (his wife) on “The Comparative Study of Culture and the Purposive Cultivation of Democratic Values,” put the problem trenchantly: Dr. Mead . . . point[s] out that a discrepancy—a basic and fundamental discrepancy—exists between “social engineering,” manipulating

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people in order to achieve a planned blueprint society, and the ideals of democracy, the “supreme worth and moral responsibility of the individual human person” . . . [T]he conflict is now a life-or-death struggle over the role which the social sciences shall play in the ordering of human relationships. It is hardly an exaggeration to say that this war is ideologically about just this—the role of the social sciences. Are we to reserve the techniques and the right to manipulate people as the privilege of a few planning, goal-oriented, and power-hungry individuals, to whom the instrumentality of science makes a natural appeal? Now that we have the techniques, are we, in cold blood, going to treat people as things? Or what are we going to do with these techniques?38 Social scientific enthusiasm for “social control” and “social engineering” was at an end, at least outside of national security circles, and the very notion of social scientific expertise was easily placed on the defensive.39 Advocates of “planning” now raced to draw distinctions. Soule, of the New Republic, expressed his frustration with the growing all-or-nothing attitude toward planning: “The terms in which the discussion has been cast have helped to create the false impression that planning is a patent new scheme to be accepted or rejected as a whole, that the nation is faced by a clear-cut alternative” between planning and the existing system.40 And Merriam of the NRPB complained that the kind of planning he was engaged in “is not autocracy, totalitarianism, or violence, but is intelligent cooperation.” To underscore the point, he began calling the work of the NRPB “democratic planning,” in express contrast to “totalitarian planning.”41 Liberal reactions to the publication of Hayek’s Road to Serfdom well captured the mixture of disavowal and concession in this period. Hayek put the case in the strongest terms that there was an indispensable connection between economic liberty and political liberty, between capitalism and democracy. Liberal reviewers complained that it was neither logically nor historically accurate that political liberty presupposes economic liberty as conceived by Hayek. “The notion that planning and socialization of certain industries will inevitably be followed by the suppression of civil liberties,” wrote Victor S. Yarros, “is wholly arbitrary. What connection is there between free speech, trial by jury, the habeas corpus safeguard, and the socialization, as in Britain, of the Bank of England, the coal mines, transportation . . . ? None is discernible.” Sweden, New Zealand, and even the example of the United States in wartime, were also widely cited as examples where various degrees of economic planning had been instituted without suspension of political liberties. It was pointed out that liberal

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freedoms were theorized by men such as John Milton and John Locke who knew nothing of the theories of Adam Smith, and that by Hayek’s own historical account, the system of market liberty first grew up in environments where political liberty reigned, thus proving the point that political liberty stood on its own, independent of economic liberty. To explain the rise of totalitarianism in Germany, Russia, and Italy, they argued, one should look to their cultural and political traditions—their strong authoritarian traditions and the relative absence of a tradition of political liberty—not their experiments with economic planning.42 But for all this dissection, what is striking is how these liberal reviewers, while rejecting all the premises of Hayek’s argument, accepted his core conclusion, that central economic planning leads to political tyranny and must be rejected. As Theodore Rosenof sums it up, “In the forties, with the fear of totalitarianism so strong and so pervasive, they ended by following Hayek— expressing their theoretical disagreement all the way.”43

New Liberal Thinking Out of this atmosphere of anxiety about the state, new patterns of liberal thought and aspiration emerged. Instead of thinking in terms of knowledge and efficiency, as had the expert-progressives, liberals began to think in terms of power and the dangers of power. Accordingly, liberals increasingly looked back to the eighteenth-century liberal notion of preserving liberty by setting power against power. This generated considerable talk of checks and balances, balance of power, decentralization, and pluralism, now applied to the economy. Especially central was the notion of a “mixed economy”: By leaving large areas to private enterprise, it was held, a mixed economy would serve to guard against statist tyranny. In those areas (if any) subject to public ownership various devices were to keep the state from exercising direct control. The semi-autonomous public corporation, for example, modeled on the Tennessee Valley Authority, it was argued, would permit basic economic policies to be decided democratically while guarding against the direct state controls which would threaten totalitarianism. Public ownership could also take regional and local forms thereby avoiding statist over-centralization. Cooperatives, too, were widely viewed as institutions which would serve the public interest in a non-statist fashion.44

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As for economic policy, most liberals now turned their back on structural intervention in the economy and embraced the safer tonic of compensatory fiscalism. This happened both within the Roosevelt administration, and without. Prior to 1938, the fiscalists and price-structure theorists within the administration had viewed each other as allies, and viewed their analyses as complementary. But while the price-structure theorists continued to accept fiscalism as a helpful complement, fiscalists increasingly distanced themselves from the structuralists.45 Stuart Chase’s conversion was typical. Chase was one of the most influential popular writers on the need for centralized planning of the economy in the 1930s. Writing in 1943, he now saw in fiscal policy “a working compromise between ‘present principles’ and totalitarian rigors. The state is the underwriter, not the operator.” Such an approach provided “a way to achieve employment with minimum government interference in the mechanics of production and distribution.” Indeed, a “compensated economy . . . will reduce the bureaucracy, regimentation, and restraints on liberties from which we are already suffering in the war—a postwar economy with controls at the minimum.”46 Again, Rosenof: Fiscal policy seemed to provide a marvelous device whereby the country could have prosperity and yet free enterprise, a government guarantee of market demand without direct government structural involvement. Some indeed urged support for fiscalism in part precisely because of what it did not do—it did not involve basic structural change. The war experience was used by fiscalists to fit their argument—the war had brought massive government spending and hence great prosperity; the fact that the war had also brought governmental controls and planning was less often remarked by proponents of the non-structural fiscal approach.47

8 Totalitarianism and the National Security State

The totalitarian shadow that was cast over the country in the late 1930s meant that the United States’ entry into World War II would be welcomed by liberals in a very different spirit than that in which they had welcomed the nation’s entry into World War I. Gone was their enthusiasm for the inauguration of a collectivized, centrally planned economic order. Gone was the cry, “Long live social control!” This would be a war to defend freedom of enterprise and freedom of the individual—to defend, in short, the “American way of life.” Of course, free enterprise was still subject to different interpretive shadings. The 1938 election had produced a policy stalemate between New Dealers in the White House and conservatives in Congress. The war, it was expected, would break this stalemate, with New Dealers hoping, and conservatives fearing, that it would give New Dealers the leverage over the corporate economy that they had so far been denied. But it did not turn out this way. Roosevelt knew that the United States, out of national interest and moral necessity, would ultimately have to enter the war. He also knew that the country, burned by the experience of World War I, was not ready to face up to the fact. At this crucial juncture, the consequences of the failure in executive reorganization began to be felt. Roosevelt entered the 1940s without the planning and administrative apparatus he had desired. The NRPB had been saved in the reorganization of 1939, but it lacked a secure statutory existence or funding supply, and Roosevelt, understanding the precariousness of its existence, was wary of making the controversial board central to a still controversial mobilization effort. If Roosevelt had had a stronger planning and administrative apparatus in place, he could have used it, or at least parts of it, for quietly planning the mobilization, and then for administering it when it was time for action. Alternatively, 164

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if he had had popular opinion with him on the need for war preparation, he would have found himself with another opportunity to erect such a planning and administrative apparatus, justifying it as necessary to force a recalcitrant industrial community onto a war footing. As it was, he had neither the planning and administrative capacity nor the popular will on which to draw. Roosevelt was left with no option for discharging his responsibility to the nation and its long-term interest but to quietly engage industry in voluntary conversion. Such cooperation would not come easily, especially when the soliciting party was the distrusted Dr. New Deal. The price of cooperation was that initial conversion—what little of it industry was willing to undertake—would be done the World War I way, with business administering itself in cooperation with the military. By the time the Japanese bombed Pearl Harbor and the nation was ready for full-scale mobilization, the corporate-military bonds of World War I had been reforged. At this juncture, civilian planners could openly compete with military planners for control of the mobilization effort, but business managers would have the final say on whom they were willing to cooperate with, and they threw in their lot with the military. The military was insulated from popular pressures. Even better, it was not part of the New Deal coalition and remained relatively untouched by it. Best of all, the military’s mobilization plans, informed by the experience of World War I (and in deference to the desire of Barnard Baruch), called for direction by a strong civilian board dominated by corporate leaders. Whereas New Dealer planning promised decreased business autonomy and meager profits, military planning promised just the opposite. Despite the superior skills of the civilian planners, despite their saving interventions on numerous occasions, in the end Roosevelt had little option but to acquiesce to the military-corporate alliance.1 “War,” Randolph Bourne famously wrote “is the health of the state.” Yet the experience of World War II, no less than of World War I, suggests that a caveat must be entered. Times of war do increase a society’s reliance on government. But when warfare is capital-intensive and the state is not itself a producer, then war also increases a government’s reliance on the producer class. Roosevelt ultimately needed the cooperation of businessmen more than he needed the plaudits of the New Dealers, and what businessmen wanted was to keep the war effort out of the hands of the existing government agencies. The 1939 report to the president from the War Resources Board—a short-lived war planning agency dominated by corporate executives—was prescient as to what businessmen would demand, and receive:

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American businessmen, like all Americans, are accustomed to democratic procedures. More effectiveness can be obtained through voluntary cooperation than through force. We recommend that wartime powers be vested in specially-created wartime agencies which will be automatically demobilized when war is over. Should wartime powers be granted to existing executive or quasi-judicial agencies of the government, it will be next to impossible at the end of the war to separate the wartime from the peacetime functions of the government. Given this arrangement, World War II, like the world war before it, left surprisingly little mark on U.S. state-economy relations.2 Despite the remarkable economic recovery and growth that was experienced under the wartime economic controls—growth even in the consumer economy, let alone the war economy—the end of hostilities saw none of the enthusiasm for a cooperative commonwealth as had followed World War I. About the most that the remaining New Dealers contemplated was the continued government ownership of some of the war plants, to serve as “yardsticks” with which to judge the pricing policies of private firms. This proposal was easily defeated. The country had entered the war defending the principle of free enterprise, and it would exit the war defending the principle of free enterprise.

The Second Death of the NRPB In 1939, NRPB members were anxious to begin planning the war mobilization. Roosevelt, much more aware of the board’s political precariousness than the board members themselves, instructed them instead to begin laying plans for the postwar period. The board took up the charge with energy and during the next few years issued a number of remarkable reports that would largely define the liberal agenda for the next several decades. They would also seal the board’s fate with congressional conservatives. One idea to come from the board—an idea that was not original with the board, but that the board provided with its first official formulation— was that of an Economic Bill of Rights. As published in the board’s National Resources Development Report for 1943, the bill enumerated 1. The right to work, usefully and creatively through the productive years;

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2. The right to fair pay, adequate to command the necessities and amenities of life in exchange for work, ideas, thrift, and other socially valuable service; 3. The right to adequate food, clothing, shelter, and medical care; 4. The right to security, with freedom from fear of old age, want, dependency, sickness, unemployment, and accident; 5. The right to live in a system of free enterprise, free from compulsory labor, irresponsible private power, arbitrary public authority, and unregulated monopolies; 6. The right to come and go, to speak or be silent, free from the spyings of secret political police; 7. The right to equality before the law, with equal access to justice in fact; 8. The right to education, for work, for citizenship, and for personal growth and happiness; and 9. The right to rest, recreation, adventure, the opportunity to enjoy life and take part in advancing civilization.3 This document, as much as any, marks the post-World War II return to rights-based liberalism, and it at the same time makes clear the role of antitotalitarianism in this move. One of the most striking features of the document is its antitotalitarian thrust, from the very decision to cast the program in terms of a “bill of rights” for the individual, to the emphasis on free enterprise, free speech, freedom of association, and privacy, in place of the old emphasis on straightening out social disorder and economic “imbalance.” Gone are the organicist metaphors of pre-World War I progressivism as well as the social individualism of post-World War I progressivism. Gone also is the case for structural reform of the economy. Instead, the document promotes the new compensatory liberalism of social insurance and fiscally stimulated abundance, cast in the individualist and antistatist language of eighteenth-century liberalism. Downplayed, of course, is that this abundance was to be secured by executive branch sponsorship of expert-driven fiscal compensatory policy, pockets of mixed public-private ownership, and expert-driven long-term developmental planning—downplayed, but not invisible. The National Resources Development Report for 1943—of which the economic bill of rights was the opening statement and the symbolic centerpiece—was a massive six hundred pages. In the remainder of its pages, these other components of the NRPB program were brought into the foreground.

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The development report was divided into three main parts. Part two dealt with the NRPB’s more usual work: information on economic trends, natural resource use, the development of a six-year advanced shelf of public works, and regional, state, and local planning. Part one presented the board’s general ideas on demobilization, including the first stirrings of what would become the GI Bill of Rights, the gradual lifting of price and wage controls, and the transfer of public plants to private enterprise. It also included an important, yet fairly cautious proposal—more Mitchell than Keynes—for a policy of countercyclical spending to sustain a highconsumption, full-employment economy. Part three, by far the longest part of the report, had at its center a study prepared two years earlier by Eveline Burns but only now released. Despite its unassuming title, this study, “Security, Work, and Relief Policies,” contained an ambitious proposal to expand public works projects for the unemployed; to expand social insurance for the unemployed, disabled, and elderly; to expand public assistance for those not eligible for public works or social insurance; and to expand public programs for health and education. In other words, it was a proposal to make good on the more strictly economic portions of the economic bill of rights. More interestingly, the whole program was presented, not just as a humanitarian venture, but also as an instrument of demand management in the quest for a fiscally induced full-employment economy. “All the various elements in the public-aid programs have a common quality in that they put money into the hands of individuals in the low-income brackets,” Burns pointed out. This makes them good devices for modulating consumer demand. For example, “if an expansionist [fiscal] program is desired, the unemployment compensation systems, suitably amended, offer a speedy and almost automatically operating mechanism for distributing funds to those who will spend them.”4 This was a fiscalist vision distinct from that of Mitchell and the board members, and closer to that of Lauchlin Currie (although Currie played no direct role in preparing the report).5 The key to sustained growth, on this view, was the gauged redistribution of wealth downward through a rational system of social insurance and public relief. If the compensatory-fiscal vision of the NRPB was not confounded enough by the presence of two fiscal variants in its development report, it became even more confounded with the NRPB’s near simultaneous publication of an additional pamphlet: “After the War—Full Employment.” This pamphlet was the work of Alvin Hansen, a consultant to the NRPB, and by now the most influential economist in Washington. Hansen was the leading advocate of the mature-economy thesis—the notion that a

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historical threshold had been crossed, and that henceforth private investment would be chronically insufficient to secure growth or full employment. He agreed with the underconsumptionists like Currie and Burns that a redistribution of wealth would probably help stimulate private investment, but he doubted its sufficiency, as well as its political feasibility. Instead, he proposed (as if this were more politically feasible) a massive program of public investment—“nothing short of a plan to rebuild America in the next generation”—which would both supplement and stimulate private investment.6 The presence of three distinct fiscal-compensatory visions in the publications of a single government agency testifies both to the pervasiveness of fiscal-compensatory thinking among liberals by the early 1940s, and to its great variability, ranging from social welfare redistributionist visions, to conservative, interest-rate and tax-cutting visions. The NRPB publications were greeted by the liberal press with much ado. Burns’s security report especially came in for glowing reviews and was immediately compared, favorably, with the “Beveridge Plan” that was stirring such popular enthusiasm in Great Britain. The security report, editorialized the Nation, “has given the American people a dramatic reply to the question: ‘What are we fighting for?’ . . . It epitomizes, as no other statement has done, the contrast between the way of life of free men and the way of life in the dictatorships. It is a natural supplement to the Atlantic Charter, but it is . . . far more inspiring to the average man.”7 The report, however, met equally voluble condemnation from the conservative press. Its proposals, the New York Times opined, were comparable to “Bismarck’s state insurance systems, which laid the foundation of the German welfare state that ended in naziism.” The U.S. Chamber of Commerce labeled it a “totalitarian scheme.”8 As for Hansen’s pamphlet, the Wall Street Journal called it a “halfway house to socialism.”9 Such charges were, of course, absurd, and increasingly ritualistic on the part of the conservative opposition to what remained of the New Deal. But they spoke to widespread fears of overbearing statism. Even before the publication of the reports, a number of congressional conservatives were plotting to cut off funding for the NRPB. With the release of the reports, the board’s fate was sealed. Especially damaging was the connection Congress drew between the Hansen pamphlet and the security report. Between the two, they left the impression that the board was hatching plans for a far-reaching, well-orchestrated statist program after the war. It did not help matters that Charles Merriam, whom congressmen identified with the executive reorganization effort, lurked behind the reports.

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An ideologically charged debate about “planning” broke out in the congressional subcommittees, in which many representatives appeared genuinely unclear on the distinction between NRPB planning and the planning of fascist and communist states. For some congressmen, the main source of their opposition was the desire to preserve congressional prerogatives in the face of what they accurately recognized as a further expansion of executive authority and initiative. Had this been the only issue, Congress could well have done what it had so frequently done in the past with new and needed executive bodies—turn the board into a semi-independent agency under greater congressional control. But in the frightened atmosphere of the times, it was the idea of central planning itself that was rejected. On August 1, 1943, ten weeks after release of the reports, the board was terminated and its files entombed in the Library of Congress. With the failure of administrative reorganization and the demise of the NRPB, the Whig vision of ordered national development was dead, at least for the civilian economy. The great moment of institutional indeterminacy and opportunity opened by the Great Depression had closed. Never again would the opportunity arise for significant administrative centralization.10 And never again would the country have a national planning agency. Instead, the country reverted to a Hooverite ad hoc system, in which temporary presidential advisory committees are formed to address national policy issues once they become too pressing to be ignored any longer. The Great Depression and the war had taught the public how many of its problems were national problems, and to look to the president for their solution. But the shadow of totalitarianism stymied efforts to put in place the administrative capacity that would have allowed the executive branch to coherently respond. Congress, and the ever-growing ranks of interest groups, would retain their influence over executive policy by maintaining the multiple points of access presented by an uncoordinated structure of executive departments and agencies. The president would have to do his best to fight off the chaos introduced by congressional and interest group poaching, and to eke a coherent national policy from out of the alphabet soup of uncoordinated agencies with the aid of the weak planning instrument that is the budget bureau.

The Institutionalization of Keynesianism? While the NRPB was dead, its new liberal vision lived on. Roosevelt echoed the board’s call for an economic bill of rights in his 1944 State of

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the Union address, and his electoral victory in the fall was taken by liberals as a mandate for legislative action. The idea of full employment, to which the president’s speech had only indirectly alluded, was nevertheless treated as the heart of the proposal and gained considerable support among the public. Hansen assumed the role of chief publicist for the full employment idea and for the state apparatus he believed it would require. In particular, Hansen, like Currie and many other compensatory fiscalists, argued for the creation of a Fiscal Authority, or Fisc, that would be empowered, within congressionally specified limits, to rapidly adjust spending and tax rates so as to regularize the flow of total expenditures and stabilizing the economy.11 Conservatives viewed the proposal for a fiscal authority in ominous terms. Henry Wriston, a Brown University political scientist, wrote of the enormous temptation a president would feel to set aside the advice of his experts and use the authority for political ends, and instanced the way in which Hitler set aside the advice of his military men to follow his “mystique.” “Can any economist be so unsophisticated as to suppose that granting such sweeping power to a political officer would lead to anything but totalitarianism and its inevitable tyranny?”12 The idea was, in any case, a nonstarter with most congressmen, who viewed control over spending as their bread and butter. To the great disappointment of the Keynesian economists, a fiscal authority was not included in the 1945 Full Employment Bill, introduced by James Murray of Montana. Nevertheless, the bill did commit the government to assuring that “all Americans able to work and seeking work would have the right to useful, remunerative, regular, and full-time employment,” and it required the president to submit annually a program aimed at offsetting any expected shortfall in aggregate demand. This was at least a good place from which to build. To its promoters, the term “full employment” was more aspirational than technical, but critics fastened on the full employment requirement as the road to a Stalinist system of forced labor. More soberly, they pointed to the rising labor costs it would likely induce, to the deficits it might institutionalize, and to the economic guesswork that would lie at the base of the whole thing. Despite the support of the new president, Harry Truman, the bill went down to defeat. The Employment Act of 1946 that passed in its stead was a toothless cousin of the original bill—so toothless the Budget Bureau almost advised Truman to veto it. The call for “full employment” was replaced with an aspiration to “maximum employment,” although in a surprise turn, conservatives did agree to the creation of a Council of Economic Advisers—a three-person board with strictly advisory functions that

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would submit fiscal reports to a Joint Economic Committee of Congress. So great was the gap between the council’s figurative responsibility and its actual powers, however, that when Truman offered the chairmanship to Budget Director Harold D. Smith, he turned it down.13 The institutionalization of Keynesianism in any robust form had failed.14

Anticommunism and Warfare Keynesianism In the end, the country did get a variant of Keynesianism, although one that almost no one had as yet imagined. There was nothing inevitable about the emergence of the American national security, or “warfare,” state. To those most intimately familiar with world conditions at the end of the war, it seemed clear that, if peace, stability, and prosperity were to return, the United States would need to assume broad new international responsibilities. But Truman faced enormous domestic pressure to bring the troops home, and what is more, after the midterm election of 1946, he confronted a Republican-controlled Congress that, while strongly antiCommunist, was also strongly isolationist and averse to public spending. Yet a coincidence of circumstances, interests, and ideologies created the conditions in which a combination of strong presidential leadership and concerted corporate campaigning was able to effect a revolution in American governance no less dramatic than that attempted by the New Deal, but far more successfully institutionalized. The emergence of the American “warfare” state was predicated on changes both in the nation’s governance ends and its governance structures. For a governance end, it would require the United States to commit itself to new international economic and security responsibilities. The passage of the Marshall Plan in 1948 signifies the making of this commitment. For a governance structure, it would require the better integration of the armed services and their insulation from normal party and political interest group pressures. The passage of the National Security Act of 1947 represents the inauguration of this structure.

The Marshall Plan Throughout 1946, Truman’s advisers forwarded him a steady stream of reports on the increasingly dire economic condition of Europe, the unstable political condition, and the determination of Stalin to exploit the situation and extend Soviet communist hegemony. Truman wished to assist, and he was strongly seconded in this by corporate internationalists—especially

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bankers—who occupied key positions in the Truman administration, and who saw a revived Europe as the key to America’s, and their own, future prosperity. But the public’s desire for a quick demobilization, and the isolationism and fiscal conservatism of Congress, left him without the political leverage to do so. The announcement in February 1947 by British officials that they would be withdrawing their military forces from Greece prodded Truman and provided him with the excuse for action. Despite the absence of any real evidence of Soviet support for the Leftist Greek partisans, Truman and his advisers had recently become convinced, in part by George Kennan’s famous 1946 “Long Telegram” on the sources of Soviet conduct, that confrontation with the Soviets was inevitable. They therefore decided to deliver a no-holds barred, crusading speech placing the Greek crisis in the context of a broader struggle to confront the Soviet enemy and preserve national security. They would ask Congress for $400 million in aid to Greece and its neighbor, Turkey, and, in the words of Clark Clifford, close adviser to Truman, “bring people up to [the] realization that the war isn’t over by any means.” Notes drawn up by members of the corporate-military partnership for a public relations campaign to accompany the speech listed as their public relations task, “to portray the world conflict between free and totalitarian or imposed forms of government.” The speech, in which the Truman Doctrine was propounded, was a success, and Congress granted the request.15 Even as the speech was being prepared, planning was under way for much of what would become the Marshall Plan. This was a much more expensive proposition, and a much tougher sell, but again, it had the strong backing of the corporate internationalists and the corporate liberals who advised the administration and who dominated the influential private business group, the Committee for Economic Development (CED). “As we all know,” said Philip Reed of the CED, “one of our objectives is to prevent Communism from infiltrating Western Europe. Another one is in our own interest to prevent Europe, if we can, from becoming an economic cesspool, which we cannot deal with and which, whether we like it or not, would certainly affect the standard of living in this country.”16 The Truman administration and the CED worked assiduously, and successfully, to line up interest group support for the plan, including the major labor and farm organizations, and an important group of antifascist New Deal liberals associated with the Americans for Democratic Action. The CED directed its most intense lobbying at breaking down congressional opposition to the plan. Yet despite these efforts, prospects for the bill remained shaky. So once again a series of occurrences in Europe—the tightening of the

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communist grip in Czechoslovakia; the contrived telegram from Lucius Clay, army chief of the U.S. zone in Germany, on the likelihood of war— were inflated and exploited to put the bill through. In antitotalitarianism, Truman had found the issue that was able to unite, on foreign policy, political forces and economic forces that were divided on domestic policy.

The National Security Act of 1947 The same sense of a renewed security threat that drove the Marshall Plan also drove the drafting of the National Security Act of 1947. As put by Ferdinand Eberstadt, a key architect of the act, in a statement he released with his report on Army-Navy unification: “Our present situation calls for action far more drastic and far-reaching than unification of the military services. It calls for a complete realignment of our governmental organization to serve our national security in light of our new world power and position, our new international commitments and the epochal new scientific discoveries.”17 Eberstadt was a Wall Street luminary and a New Deal critic, but also an “all-outer” for industry mobilization, who served successively as head of the Army-Navy Munitions Board and as a leading figure on the War Production Board. The military-corporate alliance that Eberstadt represented wished to maintain its control of U.S. defense in the postwar order. Truman, however, was deeply skeptical of corporate leadership, based on his experience with the Truman Commission, and feared the loss of presidential control over the armed services. But in the end, the horsetrading in which Truman had to engage to unite the war secretaries into a single Secretary of Defense, and to bring a Republican Congress behind the plan, meant that the military-corporate men got most of what they wanted. The National Security Act of 1947 established the governance structure of the new national security state. At its peak would stand the National Security Council (NSC), adviser to the president. Below it, rather than above it, would stand the Secretary of Defense, who in turn would head a War Council charged with coordinating the departments of Army, Navy and (a new department) Air Force. Also answering directly to the NSC would be a new planning body. Despite the military’s bluster during the war that it was fully capable of planning the war effort and should be left to do the job without civilian interference, after the war, even the leading military apologists acknowledged that “the services’ record on procurement, logistics, and strategic planning left much to be desired.”18 To avoid any such em-

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barrassment or grounds for interference in the future, the national planning board that was denied the civilian economy was provided for the national security economy in the form of the National Security Resources Board. It would maintain plans for military and civilian mobilization and be prepared to assume control of the mobilization process in an emergency. Also created under the NSC was the Central Intelligence Agency, the Joint Chiefs of Staff, the Munitions Board, and the Research and Development Board.19 The placement of the entire establishment under the direction of the NSC, rather than under a cabinet officer, would guarantee the relative insulation of the defense establishment from the normal pressures of popular politics. It would also guarantee that corporations could deal directly with military procurement officials rather than civilian administrators. Quickened by generous funding from Congress, a robust developmental national security state was born. The economic consequences of the national security state were quickly accepted by business, especially in light of the “welfare Keynesian” alternative. As Business Week chimed in 1949: Military spending doesn’t really alter the structure of the economy. It goes through the regular channels. As far as business is concerned, a munitions order from the government is much like an order from a private customer. But the kind of welfare and public-works spending that Truman plans [through the Fair Deal] does alter the economy. It makes new channels of its own. It creates new institutions. It redistributes income.20 The putative contrast was chimerical, of course. Welfare Keynesianism would have done no more than warfare Keynesianism to alter the operational principles of the economy, and the national security state created as many new channels, institutions, and income redistributions as an expanded welfare state would have. The real story is that American business felt less threatened by expansions of state capacity occurring on the military side than on the civilian side, and what is more, military contracts would go overwhelmingly to the large corporate concerns to which Business Week catered, while the same could not be said of contracts handed out by New Deal civilian administrators. All the components of the postwar national security state were now in place. Its ideological basis was anticommunism, its planning base was the defense establishment, its production base was the “military-industrial complex,” and its economic policy base was warfare Keynesianism.

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Conclusion to Part II The encounter with totalitarianism had profound consequences for the character of the American state, state-economy relations, and economic thought. On the one hand, the encounter thwarted Roosevelt’s attempt to reorganize the (civilian) state along “old” expert-progressive lines (consolidated under a responsible executive), leaving it fragmented and porous. On the other hand, the encounter with totalitarianism made possible the reorganization of the military state, in this case along “new” expert-progressive lines (consolidated, but only weakly controlled by the president, and well insulated from popular politics). Its major departure from the progressive model—a departure full of consequence—was from the progressive ideal of public reason. Progressives may have been a clerisy, but their methods and models were to be transparent, openly discussed and debated in the universities and in the non-partisan press. Quite opposite principles would govern the national security state, making it progressivism’s dark alter ego. With respect to state-economy relations, the encounter considerably narrowed the governance projects of the New Deal. There was never a chance that the United States would nationalize major industries, or any real chance that it would institutionalize a technocratic planned economy as envisioned by Rexford Tugwell. The chances for some form of “cooperative” economy were somewhat greater (in fact, a cooperative economy was successfully institutionalized in agriculture), though only somewhat. However, the United States would certainly have institutionalized some form of development state. Quite likely it would have institutionalized more pieces of a “strong” development state, with direct investment through authorities such as the TVA, or through executive-directed public works programs such as the WPA. It certainly would have institutionalized a “soft” development state, with the NRPB serving as the peak organization of a network of advisory planning bodies. There was also a clear trend within the NRPB to complement its resource planning functions with Keynesian fiscal management functions. In short, the United States was on a trajectory toward a mild variant of a European-style mixed economy. But after the encounter with totalitarianism, the development state was completely dismantled, and only a loose, conservative, Keynesian warfare state survived. With the war years excepted, the years from 1933 to 1948 trace a steady downward arc, from a system of strong structural intervention in the economy to a weak compensatory system of “free enterprise”—a system in which, thanks to the war, enterprise was considerably more concen-

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trated than in 1932 when Adolf Berle and Gardiner Means published their shocking statistics on the matter. On the military side, the outcome was again almost exactly the opposite from what it was on the civilian side. Under the threat of totalitarianism, a deeply rooted American aversion to standing armies was overcome, and a developmental warfare state with a planning board and a large research and development budget was institutionalized. In other words, a weak welfare state and unplanned civilian economy was paired with, and stabilized by, a strong developmental warfare state and a cooperatively (military-industry) planned military economy. The result was a government with unprecedented capacity to intervene internationally, but limited capacity to intervene domestically. More dramatic even than the institutional consequences of the encounter were the intellectual consequences. Ever since the landfall of the Germantrained economists in the 1880s, a broad and ever-more diverse spectrum of views on economic governance had propagated itself. Then, in the early 1930s, the Great Depression came down like a guillotine, lopping off the right-hand side of the spectrum. Laissez-faire was dead, and even the idea of regulated free enterprise no longer seemed viable. Yet within ten years, free enterprise was the toast of the town and it was the left-hand side of the spectrum that was lopped off. The “middle way” of the 1930s became the left edge of the 1940s and after. Gone, of course, were Marxists and socialists as serious participants in economic discussion. Gone, too, were Taylorite and Veblenite technocracy. Gone were the associational and corporatist visions. And by 1948, labor union social democracy (not treated here) had also been wiped out. The most remarkable thing about this contraction of the intellectual spectrum is that, in most cases, it cannot be attributed to the actual failure of the respective approaches. Overhead planning worked in the AAA. Technocracy worked in the TVA. Most striking of all, the recovery and growth that the country experienced in the early 1940s occurred, not under a system of free enterprise, but under a wartime regime of associational planning and production and price controls. So why was free enterprise the beneficiary? It was not experience, but ideology—and not ideology about economic consequences, but about political consequences. The totalitarian concept suggested that economic controls were paid for in terrifying political and psychological controls. It was not the American experience, but the totalitarian concept, that swung the spectrum of opinion toward free enterprise and away from structural reform.

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Among its more important intellectual consequences, the loss of support for structural reform of the economy meant that the study of structure— the study of institutions—rapidly declined. The spectrum of opinion within the economics profession shifted further to the right than in most other disciplines. In economics, everything left of Keynesianism was cut away, with bitter-enders starved to death through the refusal of the lead journals to publish their work (a reversal of an earlier policy of representativeness).21 The discipline that before the war had been, to the larger public, synonymous with radicalism took a conservative turn, and, with the eclipse of Keynesianism in the 1970s, became synonymous with conservatism.22 The drop-off in institutional analysis (other than what was needed for Keynesian prescriptions) was thus particularly precipitous within economics, with historical and institutionalist economics virtually disappearing. Even such a basic institution as the economic firm, the engine of the modern economy and the object of so many progressive reform efforts, received almost no attention for the next four decades, as the discipline refocused its attention on “the market.”23 The institutional analysis of capitalism was thus left primarily to political scientists and especially sociologists, who retained greater allegiance to the “mixed economy” concept.24 Since professional economists enjoyed a monopoly on government advising, their ideas had little public impact. Even had they received a wider hearing, the practical consequences would have been limited. For the most part, these “social liberals” (Daniel Bell, Talcott Parsons, Robert Dahl, Charles Lindblom) were satisfied with existing trends. They saw American society naturally evolving toward a more “socialized” form of life. It did not require a mass movement. It did not require the intervention of public-spirited intellectuals. It did not require government intervention in the price-production mechanism. Late-modern capitalism would bring these changes from out of its own logic of development, through the expansion of the universities, the socializing influence of the mass media, the managerial revolution in business, the growth in discretionary national income, and so forth. Thus, even where the idea of market capitalism as destiny was challenged, the actual operation of market capitalism was not. The erection of a standing national security state created a new institutional home for social scientific research. But it was a very different home, suffused with very different imperatives. Indeed, the contrast between the institutional bases of prewar and postwar social science is striking, and

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helps to explain the shift from progressive to free-market economics as the dynamic intellectual force in the two periods. In the formative years of the social sciences, institutional support for social research was provided by the Protestant parachurches, which pioneered the techniques of the social survey, and by the German-influenced universities. Foundations soon became a third support, typically carrying a sublimated Protestant reforming zeal of their own. It is no surprise, then, that prewar social science should have been dominated by a progressive reform spirit and should have developed research tools and knowledge useful to reforming efforts. Protestant institutional support for social research evaporated as the Social Gospel went into decline. But during World War I, the national government became a temporary patron of progressive, state-oriented economics, and the Great Depression revived this relationship on what should have been permanent terms, with the NRPB as the central node of federal support. The encounter with totalitarianism sealed the fate of the NRPB, however. This meant the disappearance of federal sponsorship of (civilian) longrange developmental planning, and of the progressive economics that supported it. Instead, the Bureau of the Budget would become the major federal home for professional economists, providing support for fiscal intervention and the new Keynesian economics, until Keynesianism fell out of favor with the stagflation of the 1970s. In the postwar period, the traditional foundations continued their support of social research, but new foundations emerged alongside them with conservative, free-market agendas, and many of them dispensed with the progressive ethic of nonpartisanship in favor of direct policy advocacy and party support.25 Most important of all were the massive resources and prestige of the Cold War think tanks, of which RAND was the paradigmatic example, focusing on security studies. It is not conspiracy to suggest that this shift in institutional support had consequences for the content of the social sciences. But there are ironies in how the consequences ran. It was in the secretive, technocratic, planning atmosphere of RAND that there was forged the staunchest antiplanning discourse in postwar social science—game theory and its social choice, public choice, and rational choice spin-offs. Game theory was developed to illuminate the logic of nuclear deterrence in the Cold War standoff between the United States and the Soviet Union. It was to be a normative science of decision making under adversarial circumstances. But its creators (John von Neumann deserves special mention) almost imme-

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diately redeployed it as a descriptive science of decision making in the “noncooperative” realm of the economy, and soon thereafter in the realm of politics and social relations generally. The social sciences were founded as instruments for advancing the public good, and they premised that, when not distended by the competitive organization of the economy and political parties, humans are naturally social and cooperative. The postwar sciences of decision and rational choice exclude the notion of a public good at their very foundation and treat all social actors as inherently selfseeking. Not surprisingly, government and government officials come off particularly poorly under this interpretive lens. Advocacy becomes a form of “rent-seeking.” Politics becomes vote-getting. Governance becomes an exercise in income transfer. Recent scholarship by Sonja Amadae underscores the triple debt of “rational choice liberalism” to the encounter with totalitarianism. First, it was gestated in the preeminent Cold War think tank, the RAND Corporation. Second, its founders were almost all motivated by antitotalitarian concerns, anxious to vindicate “Enlightenment rationality” and to defend liberal democracy against collectivist and totalitarian alternatives. Third, its intellectual structure incorporated the major premises that, as will be shown in Chapter 9, dominated postwar antitotalitarian discourse, including the premise of the subjectivity of values, the inviolability and incomparability of individual preferences, and the illegitimacy of “imposing” ones values or preferences on another. On the one hand, because minimal in ethical content, these premises held out the possibility of an objective science with universal laws. On the other hand, because they blocked value commensuration, they ruled out, by design, Kantian, Rousseauian, utilitarian, Marxist, and totalitarian appeals to social consensus and the collective good.26 The tangled tale of the emergence of postwar “rational choice” out of operations research and the security sciences remains to this day locked away in the files of the national security apparatus, and is only gradually coming to light. The dominance of this paradigm within American social science is also fairly recent and its consequences yet uncertain, although one may surmise that it will further the libertarian trend in economic thought. But other transformations in social science occurred in the light of day, with consequences that are more clear. Such is the case with postwar “pluralism,” to which we turn next.

9 Democracy and the “Values” Question

The nightmare of totalitarianism is a double nightmare. On the one hand, it invokes an image of physical coercion by an all-encompassing administrative state. This was the image of totalitarianism most salient in contemporary discussion of state-economy relations, and it delegitimated the progressive aspiration to fundamentally transform them. But it also invokes an image, yet more terrifying, of psychological coercion by a state committed to ideological conformity. This image has arguably had an even greater impact on the subsequent direction of American life, for it delegitimated the notion, common to progressives of all stripes and to most intellectuals before them, that public authority has a role in upholding moral standards and in fostering favorable conditions for the formation of human character. In other words, totalitarianism delegitimated “formative politics.” This aspect of the encounter with totalitarianism was not without impact on U.S. political economy. For example, the developmental governance project of the New Deal—both the strong version represented by the TVA and the soft version represented by the NRPB—had the improvement of human character, the creation of “a different type of citizen,” among its original objectives.1 But by the early 1940s, resurgent apostles of market capitalism were criticizing planning for imposing values, and praising free enterprise for putatively leaving value choices up to the individual. As another example, the Pareto optimum that has served as the touchstone of so much of post-World War II economic and rational-choice theorizing is really nothing more than the formalization of the rejection of value imposition. Keynesianism, too, fits the mold. Keynesian economics, as it took shape in the postwar period, dropped the progressives’ concern for human character—it was merely a tool for economic stabilization. This had not been the original idea. As originally conceived by the NRPB, Keynesian public 183

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investments would have been guided by NRPB development planning. But after the NRPB was scratched, American Keynesianism swung loose from formative goals.2 The more substantial impact of the stricture on value imposition, however, has been on American thinking about democracy and law, the subject of Parts III and IV, respectively.

The Ideological Reaction against Totalitarianism From the late 1930s through the 1960s especially, the contrast between democracy and totalitarianism (or freedom and totalitarianism) structured reflection on most every domain of social life, including politics, economics, law, psychology, education, and foreign affairs.3 For tracing the impact of totalitarianism upon democratic theory, two developments are of central importance. One, which can be treated quite quickly, is the emergence of the democracy/totalitarianism dichotomy as the organizing principle for discussion of political systems, and for comparative work in particular. Systematic empirical comparison of governmental systems came late to American political science, probably because of the lingering influence of jurisprudential approaches. Furthermore, when textbooks in comparative government did begin to appear, in the early 1930s, they had little in the way of theoretical integration, with individual chapters devoted to separate nations, in no particular order. The advent of the democracy/totalitarianism dichotomy gave impetus to comparative work, and at the same time gave it its organizing principle. By the late 1930s, comparativists, particularly European émigrés, had developed a synthetic concept of totalitarianism, describing what was common among communism, fascism, and Nazism, as well as what distinguished these regimes from traditional forms of dictatorship. Especially important for the development of the concept was a shift in focus to the similarity of means employed by the dictatorships of the Left (communism) and Right (fascism and Nazism), and the notion that these new regimes were qualitatively different from dictatorships of the past in their employment of modern technologies of communication and control. By the end of the decade, typical textbooks used chapters on Italy, Germany, and the Soviet Union to develop a concept of “totalitarianism,” which was then contrasted with the Western democracies and their features.4 The precise content of this contrast varied over time, however, which brings us to the second development of central importance to postwar

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political science: the transformation of the ideal of value-neutral science into an ideal of a value-neutral, noncoercive political-constitutional order. To impose values is absolutist and totalitarian; legitimate authority, by contrast, provides a neutral framework for the brokering of value claims, or “interests.” It is relativistic and democratic. This was the version of the democracy/totalitarianism dichotomy that carried the antistatist, antipaternalist paradigms of pluralism and structural-functionalism to their position of dominance in postwar social science. Even as the national security state was becoming a massive autonomous presence in American life, social scientists, who once were fascinated by the possibilities of state autonomy and planning, completely neglected the phenomenon, as they turned their attention back to the legislature as the true seat of democracy.

Totalitarianism and the American Methodenstreit To understand the genesis and appeal of the “neutralist” politicalconstitutional ideal, we must turn to the academic debates of the 1930s and 1940s over scientific methodology and democratic values. The charged intellectual atmosphere in the American academy during these years has been wonderfully reconstructed by Edward Purcell Jr. in The Crisis of Democratic Theory. As Purcell shows, totalitarianism overtook Europe and Asia at a time when American academics were deeply divided over methodology in the social sciences and jurisprudence. On one side stood the “scientific naturalists,” including the younger generation of legal realists, who, whether under the influence of Darwinism, neo-Kantianism, or positivism, rejected the idea that ethical propositions could be rationally demonstrated, and advocated replacing such exercises with empirical, “value-free” studies of the way in which politics, the law, and other social phenomena “really work.”5 Squared off against them were “rational absolutists” such as Hutchins, Adler and numerous Catholic intellectuals who, as part of a renaissance of Thomism and natural law theory, held that human reason could discover, and should aim to discover, universal principles of justice through philosophical analysis of the nature of reality. The rise of fascism brought this methodological quarrel to a fevered pitch by injecting each side with the conviction that the fate of Western democracy depended on the routing of its methodological opponent. Initially, it was the scientific naturalists who found themselves on the defensive. This is hardly surprising when it is recollected that many of them, and perhaps Walter Lippmann preeminently, had spent the 1920s and

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early 1930s reducing traditional democratic theory to a shambles. As Purcell summarizes, in a passage worth quoting at length: Between the first decade of the twentieth century and the mid-thirties the methods and assumptions of scientific naturalism helped expose major weaknesses in traditional democratic theory. First, it destroyed rational justifications of ethical ideals, such as a “higher law,” which had provided democratic theory with its moral foundations. In the years after 1910 scientific naturalists strictly confined induction to observable, concrete phenomena and ruled it out as a method of proving the validity of any moral principles. At the same time they sharply redefined the nature of deductive logic, always closely allied with rational ethical systems. By demonstrating its wholly abstract and formal nature, scientific naturalists denied it any authority in questions concerning the legitimacy of moral values. Rejecting the possibility of demonstrating the truth of ethical propositions by either induction or deduction, they left moral ideals without a rational, theoretical basis. Second, in empirically examining human behavior and the actual process of American politics, scientific naturalists came to question and often reject three cardinal principles of democratic government: the possibility of a government of laws rather than of men, the rationality of human behavior, and the practical possibility of popular government itself. Legal scholars began to argue that judicial decisions were not the results of impartial logic but of the personal values of judges. There was no such thing as “established” law. Psychologists found that human behavior was largely irrational, especially in the complicated and emotional arena of politics. Most individuals, they maintained, were unable to fulfill the traditional democratic obligations of the citizen. Students of politics learned that in practice small groups of insiders dominate the government and that popular control was an illusion. Democratic government simply did not work as its theory claimed it should. By the early thirties traditional democratic theory seemed largely untenable. Most scientific naturalists continued to believe in the desirability of democracy, and some tried to reformulate its theory. But the rise of European totalitarianism and the international political tensions of the late thirties transformed the problem of the validity of democratic theory into an unavoidable and essential question. The disillusionment of some intellectuals with naturalism, the hostility of church

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groups, and the frustrations created by the depression combined with the rise of Nazism to galvanize many Americans into a renewed attack on scientific naturalism as a destructive and inadequate world view.6 The most basic charge leveled at the naturalists was that their work assumed, and intentionally or unintentionally propagated, moral relativism, the logical implication of which was that “that which is, is right,” and that it was on this value skepticism that totalitarianism fed.7 Karl Herzfeld of the Catholic University of America, in a typical complaint, noted that since the late nineteenth century, legal philosophers had more and more dismissed the existence of the natural law that the Founding Fathers took for granted, and had come to regard all law as positive, enacted law. Today, the idea of natural law in political science and jurisprudence is widely disregarded outside of Catholic circles. As a result, the State is often considered supreme, not subject to any higher rule, and any law is considered justifiable. The moral and political anarchy in which we live is the natural outcome of an attitude which does not admit the existence of permanent truth and unchangeable moral laws.8 Father Francis E. Lucey, regent of the Georgetown University School of Law, drew the battle line even more clearly: “Democracy versus the Absolute State means Natural Law versus Realism.”9 While Catholic intellectuals were the most closely identified with this critique, they were not alone. Robert Maynard Hutchins, the voluble young president of the University of Chicago, was a leading voice among the secular intelligentsia that joined the Catholic position. Having made an early name for himself as a legal realist, Hutchins fell in with the rational metaphysics of Mortimer Adler, whom he then brought to Chicago, and became a staunch critic of the scientific naturalism that he had once professed (and that, ironically, was virtually synonymous with the name of the university he had been appointed to lead). With the outbreak of war, he, too, raised the stakes of the contest, making the same, seemingly irresistible polemical move as the Catholics: “In law school I learned that law was not concerned with reason or justice. Law was what the courts would do. Law, says Hitler, is what I do. There is little to choose between the doctrine I learned in an American law school and that which Hitler proclaims.”10 This rational-absolutist polemic by and large accorded with the sentiments of the general public and continued to resonate there for the duration of

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the war and beyond. The unlikely popularity of Adler’s “Great Books” paedeutics, and the celebrity of Adler himself through the 1950s and into the 1960s, testify to the public’s receptivity to the “absolutist” presentation of liberal ideals in this period. Russell Kirk and Richard Weaver are noteworthy among those who carried the moral absolutist polemic into postwar conservative thought, where it found a more enduring home as a weapon to be used against “relativist” liberals. From there it made its way into the public rhetoric of Barry Goldwater and Ronald Reagan, and on another line of development, became the standard polemic of the conservative camp in the “culture wars.”11 The rational-absolutist polemic also continued to eke out an existence within academia, as part of resistance movements to the broader intellectual current. Leo Strauss and his avid and able students are a case in point. Strauss’s antifascist critique of “historicism” and defense of “natural right” converged with the Catholic critique of relativism and defense of natural law. Together, they fed the Cold War neoconservative movement, and later, they fed the “campus wars,” the opening salvo of which came from Allan Bloom, a Strauss student, who contrasted the absolute standards of the “canon” with the relativism of multiculturalism.12 But within the academic mainstream, the scientific naturalists were able to turn the tables on the rational absolutists, and they did so in grand pragmatist style, shifting the terms of debate from the question of the logical implications of a theory to that of its practical consequences. Dewey had been arguing for decades that democracy was the political correlate of the “experimental attitude” in science.13 By the late 1930s, he was emphasizing the converse as well—that political absolutism was the practical correlate of philosophical absolutism, since the pretense of eternal verities licenses a caretaker elite.14 The claim resonated, given that most academics carried with them a hazy Enlightenment historical consciousness that associated the “authoritarianism” of the medieval Church with scholastic “dogmatism” and that furthermore gave them the vague sense that the advent of modern experimental science had at least something to do with the democratization of the West.15 Sidney Hook, a devotee of Dewey, took up the claim immediately. Fed up with the Catholic refrain that Dewey’s philosophy was a stage in the inevitable decline of free thinking from Martin Luther to Marx and Stalin, Hook decided it was time to return the compliment, and sharpening the tip of Dewey’s argument, ripped it into the writings of Jacques Maritain, the “commanding general” of the new Thomism.16 His 1940 essay in Partisan Review opened with the following declaration:

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Catholicism is the oldest and greatest totalitarian movement in history. Other totalitarian movements have borrowed from it even when they have fulminated against it . . . Compare it with Fascism, Nazism, Stalinism. In every case the mystique is different; but in every case we find present not merely dogmas, sacred and profane, rituals of canonization and excommunication, but the desire to revolutionize “the soul” of man through the directing force of a highly organized minority, using those three great instruments described by Dostoevski’s Grand Inquisitor—miracle, mystery, and authority—to order a society in behalf of the interests of a bureaucratic hierarchy.17 Hook went on facetiously to commend Maritain’s outline for a “new Christendom” to those who “having surrendered one or another specific variety of totalitarianism, have not yet repudiated its generic form.”18 Few besides Hook adopted Dewey’s optimism that the “method of intelligence,” the method of experimental scientific inquiry, could found a new science of values. But they did, like Hook, rally behind the dichotomy Dewey drew between political and philosophical absolutism on one side and political and philosophical openness on the other. This gave totalitarianism both a definition—totalitarianism meant the imposition, by an individual or group, of one set of values on everyone else—and an etiology—it was the consummation of moral absolutism. It certainly didn’t prove difficult for the naturalists to find textual support for this interpretation of totalitarianism in Nazi writings. Horace Kallen, in his own analogization of the Catholic theologians and the Nazis, quotes straight from Mein Kampf: “[The Nazi] Weltanschauung is intolerant and cannot be content with the rule of one party among others but demands dictatorially that it be acknowledged exclusively and completely and that the entire public life be completely readjusted according to its views.”19 The interpretation was powerfully reinforced by George Orwell’s nightmarish portrayal of a state’s conquest of the inner mental life of its citizens in 1984. It was reinforced again in the early 1950s by the disturbing stream of “confessions” and procommunist statements coming from American POWs in North Korea, explained by journalists and scholars alike as the product of communist “brainwashing.”20 What appealed to scientific naturalists about such a definition is that it allowed them to condemn totalitarianism, and praise democracy, without taking any “substantive” value stance. It made totalitarianism objectionable as a procedure of governance, regardless of the content of the values imposed—objectionable because, normative proofs being impossible, the

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imposition of values can never be justified, whatever they are. But it also meant that democracy, as the presumed photographic negative of totalitarianism, changed its color. If totalitarianism stands for value absolutism, then democracy is the social form that results from accepting the relativity of all value positions and is characterized by pluralism, change, voluntarism, and compromise. And finally, and perhaps most important, it meant that true democrats put “soulcraft” aside. Public inculcation of values now appeared inconsistent with democracy and the dignity of the individual.

The Relativist Theory of Democracy The result was what Purcell aptly dubs the “relativist theory of democracy,” the central claim of which was that, in the words of Thomas Vernor Smith, “democracy does not require, or permit, agreement on fundamentals.”21 Indicative of the new understanding is the volte-face of Carl J. Friedrich, the eminent constitutional historian and comparativist, who in 1937 was still defending Sir Arthur Balfour’s classic formulation that democracy was possible only where citizens agreed on fundamental values, but who by 1939 suggested: It seems highly questionable whether fundamental agreement, or the absence of dissent in matters of basic significance, is really a necessary or even a desirable condition for a constitutional democracy . . . May it not be that modern constitutional democracy is the endeavor precisely to organize government in such a way that agreement on fundamentals need not be secured?22 The new gospel quickly spread to the four corners of academia. “Democracy then becomes identified with this principle of relativity, as contrasted with the absolutism of dictatorships,” summed up Boyd M. Bode of Ohio State. “There is no middle ground.”23 Alain Locke of Howard University presented a paper at the 1941 Conference on Science, Philosophy and Religion in Their Relation to the Democratic Way of Life that well represents the new drift in thinking among the scientific naturalists.24 We are justifiably alarmed, Locke observed, by the rise in Europe of “new secular absolutisms” with their “associated intellectual tyrannies of authoritarian dogmatism and uniformitarian universality.” But, he warned, in a dig against the natural law theorists, “we do not always realize the extent to which these modern Frankensteins are the spawn of the older absolutistic breeds, or the degree to which they are in-

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herent strains, so to speak, in the germ plasm of our culture.” Indeed, we face the danger that our “zeal of culture defense” might leave us with a “uniformitarianism of our own” based on the overly narrow creeds of yesteryear. Fortunately for us, however, “value relativism” offers “a more objective confirmation of many basic human values, and on a basis of proof approximating scientific validity.” As Locke readily admits, “The initial suggestion of a vital connection between democracy and pluralism arose from the rather more apparent connection between absolutism and monism.” “But,” he went on, “so destructive has pluralism been of the closed system thinking on which absolutist values and authoritarian dogmatism thrive that it has proved itself no mere logical antithesis but their specific intellectual antidote.”25 In other words, given the assumption that value absolutism is the godfather of dictatorship, then value pluralism, which attacks value absolutism, must be on the side of democracy. That is the argument. The paper was warmly received by the scientific naturalists. Erwin Goodenough, a paper discussant, boiled it down to its essentials. That philosophy which recognizes the conflict of various suggested ultimates and axioms and the complete inadequacy of our data to select between them (as witnessed by the inability of reasoning philosophers of different schools to convince each other by reasoning); that philosophy which tries to take the very conflict as its starting point and develop a modus vivendi out of it, is called pluralism . . . Over and again the various absolutist philosophies suggested in the Conference have shown that once in power they would be dangerously like the closed systems (at least in being closed), which we want to oppress. Here is genuinely the philosophy of democracy—not a very brilliant philosophy, as democracy itself is not a very brilliant form of organizing society, but still the philosophy which made democratic arguments, from those in the village store to those in the Senate, possible.26 In other words, the nondemonstrability of ethical propositions was no longer seen as a logical blow to democracy, but as its pragmatic rationale. Purcell notes the overlapping reasons that this kind of reinterpretation appealed to naturalist intellectuals. Dewey’s equation of philosophical absolutism with political authoritarianism proved the linchpin of the developing relativist theory of democracy because it provided the one basis on which most American

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intellectuals could unite. It was grounded on a thorough naturalism; it required the acceptance of no specific ethical theory or philosophical system; and, best of all, it claimed that rational and religious absolutism was the real enemy of democracy. In short the absolutistauthoritarian equation appealed to all of the intellectual and emotional convictions of a great number of American scholars and at the same time allowed them to defend both naturalism and democracy by aligning their absolutist critics with European totalitarianism.27 Moral absolutists, it now appeared, were but totalitarians in waiting. Moral skeptics were the true democrats. This was a remarkable piece of ideological thaumaturgy. Max Weber, as an early proponent of value-neutral (wertfrei) social science, described his own value commitments as a matter of “faith.” But neither he nor his contemporaries would have dreamed of such a thing as a value-neutral political order. When Weber advocated democracy for Germany, he did so on the ground that it was the political form most likely to select charismatic yet responsible leaders capable of elevating the national character (and preserving the nation against the disintegrating forces of market competition), by winning the public over to a common politico-cultural faith.28 Yet remarkably, over the course of World War II, American social scientists and legal scholars translated the Weberian ideal of value-neutral science into an ideal of a value-neutral political-constitutional order—or at least, a political-constitutional order in which values are not imposed on anyone. Even more remarkably, they recast the United States as the embodiment of this ideal. On a considered view, this must be judged an overdrawn ideological reaction to the situation in Europe. The horrors of Nazism, for example, came from the content of the values it cultivated (its racism, its militarization of society, its claim to world domination) and from the means it employed to cultivate them (state monopoly of all media, violent elimination of all dissent, denial of the right to exit, and so on), not from its cultivation of values per se. The association of values with authoritarianism forgets that the institutional forms of liberal civilization have classically been justified on account of their capacity to foster various human virtues and secure various human goods.29 It confuses the classical liberal dissociation of citizenship from religious confessionalism with disengagement from substantive values (including religious values) in general. What is more, it doesn’t actually follow from value skepticism that the imposition of values

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is unjustifiable. To conclude so overlooks the other edge of the sword— the edge emphasized by the rational absolutists—that moral skepticism undermines the reasons one might adduce as to why a given set of values should not be imposed. If there is no truth about values, then why refuse those offered by the authorities? Put another way, if we are skeptical of all values, then it is not clear why we should accept the normative proposition that, lacking proof for a value position, the state ought not encourage it. Moral skepticism is consistent with state neutrality, absolutism, or anything in between.30 Confused or not, the new image of the United States as free of shared value commitments, and the new ethic of the nonimposition of values, became the guiding lights of American intellectuals after the war. The famous postwar debate over the “end of ideology” was indicative of the new outlook. “Ideology” referred to any totalizing, absolutist social philosophy, and the question was whether Americans had succeeded in ridding themselves of them. Whether one believed they had or not, almost all agreed it would be a good thing.31 It is worth reiterating that this set of intellectual commitments was not shared by all Americans; indeed, its initial carriers were a fairly small group of academic elites. Much of the rest of the country attributed the evils of fascism and communism to their godlessness and retained a more traditional understanding of the United States as a Christian (or at least Judeo-Christian) God-fearing nation, with freedoms under moral law.32 Nevertheless, the impact of the relativist framework was felt in every area these academic elites touched, and was indirectly propagated in ever-widening circles. Its impact was felt most immediately in the academic disciplines themselves, in a retheorization of the principal social arenas—politics, economy, and law—along lines consistent with relativist premises.

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The idea of the United States as a country where values are neither shared nor imposed received two principal interpretations. The more radical interpretation—what we might call the “high road”—is the notion that the American state is (or ought to be) “neutral,” in the sense that it must not benefit (or burden) one idea of the good life over another. Although this interpretation appeared on the scene in the 1940s, it did not reach critical mass until the 1970s, after the publication of John Rawls’s A Theory of Justice. We’ll return to this interpretation in Part IV, where we discuss the impact of totalitarianism on constitutional law, its true home. The other interpretation—call it the “low road”—took as its point of departure the problem of social order raised by the relativist theory of democracy. Namely, if Americans don’t share fundamental value commitments, then what keeps society from falling apart into the war of all against all? How does society go on? The answer, on this interpretation, is that Americans, while not agreeing on substantive values, nevertheless agree on the procedures, or processes, for settling value disagreements, and that these processes are characterized by openness, negotiation, accommodation, and compromise. Thus, while values are sometimes imposed on others, it is a minimal imposition. This I will refer to as the “process” interpretation of relativist America.

Two Images of Democracy as Process For the sake of completeness, it should be noted that, in the fires of conflict over scientific method and its relationship to democracy, not one, but two new process images of democracy were forged. These images were largely complementary, although they proved unequal in their susceptibility to institutionalization. The first image, and the one that received the 194

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most initial elaboration, stemmed directly from Dewey, and turned on an analogy between democracy and science. Democracy, on this view, applies the “experimental method” to social life—it might even be considered a scientific laboratory writ large. Like the good scientist, the good democrat is skeptical of inherited pieties, open to new ideas, and tolerant of diverse views. His allegiance to values and institutional structures is not determined by their noble or sacred lineage, but by investigation of their real-world consequences, and the results of his investigation are disseminated throughout the citizenry, in an ongoing effort to make intelligent collective adjustments to emergent social forces. The moral was that science, far from being a threat to democracy, is its very image. This analogy was given endless and baroque elaboration by all and sundry in the 1940s.1 Horace Kallen’s exposition was one of the more grandiloquent: If the phrases “The Scientific Spirit” and “The Democratic Faith” are two, the disposition of mind and heart which they signify is one . . . They are diverse flowerings from a common root, and so related inwardly that where one sickens the other cannot remain in health, where one grows strong the other cannot remain weak . . . The scientific spirit is the spirit of individual initiative, invention, free enterprise, free trade and equal competition for excellence in the world of ideas. Scientific society hence is open society, a democracy of the spirit which anybody may enter who will, and from which only those expel themselves who violate its rule of equal liberty for different views by endeavoring to impose a monopoly for one view on a basis of unearned privilege and not of earned merit. Switching to the other side of the analogy: The democratic faith is the affirmation of the right to be different; the assurance of equal liberty and equal justice to different people in terms of their differences; equal liberty for the little people with the great, the poor with the rich, the weak with the strong; the heretic with the orthodox, the infidel with the believer; the minority with the majority . . . In the world of democratic “virtue” as in the world of science, majorities and minorities are associations of individuals joined together on equal terms of constant, free cooperative competition and competitive cooperation in the course of which majorities become minorities and minorities become majorities. None holds itself

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to be established to endure forever unchanged. All accept mobility as their principle of thinking and doing. The society they compose is a pluralistic society.2 And so on. The significance of the analogy between democracy and scientific inquiry is that it shifted attention away from the question of democracy’s substantive commitments (such as the kind of belief system or moral restraints necessary to preserve a democratic political system) to the question of its method, its process—the open process of culling ideas from all quarters. This highlighted two values in particular as central to democracy: freedom of thought, and open, decentralized participation.3 Not all social scientists who adopted this “scientific pragmatist” interpretation of democracy, it should be noted, were moral skeptics. Dewey and his closest followers were themselves optimistic that social “experiments” would lead to substantive conclusions about social values, and a small Deweyan camp carried this notion forward into the postwar period. But the analogy between science and democracy also proved consistent with a more skeptical attitude toward values, and was brought into this more skeptical mode especially by Karl Popper, in his notion of an “open society.” And it finds an echo today among contemporary “discourse democrats,” as in Richard Rorty’s “ironists” who aspire simply to “keep the conversation going.”4 But there were real limits to the analytical power and institutional practicability of this rather vague patterning of democracy after scientific inquiry. Critics of the analogy, such as Frank Knight, pointed out that, unlike scientific communities, democratic communities or legislatures cannot continue to talk indefinitely. One must at some point reach a conclusion and act, for inaction, too, has its consequences. This necessitates a much more authoritative institutional organization of political democracy than is required within the various scientific disciplines. And thus all the issues of authority elided by the science analogy reemerge. But a second image of democracy was also forged in these debates—an image that accepted value relativism from the start. This was the pluralist vision, in which the relativity of values naturally generated a plurality of values, with special rights for none.5 And in the able hands of postwar democratic theorists, who adopted this vision as their own, it was quickly turned into an institutionally robust theory of pluralist democracy. Like the Deweyan version of process theory, pluralism provides a more modest accommodation of relativist premises than does the high road of

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strict neutralism. It acknowledges that values will sometimes be imposed through the instrumentalities of the central government—although again, this is viewed as a minimal imposition, because of shared commitment to procedures of bargaining, compromise, accommodation, and coexistence. But it breaks with the progressive tradition in that, by pluralist lights, a properly democratic state has no values of its own to pursue. Whatever values find their way into legislation or executive action are the values of “society.” The government itself is neutral and provides a neutral framework for the social bargaining of others, organized as groups.

The Fingerprints of Relativist Democracy The debts of this new theory of American democracy to the wartime debate over totalitarianism and scientific method are deep. It is not my contention that postwar political scientists necessarily perceived themselves as engaged in an antitotalitarian enterprise, although plenty of them did. Rather, the point is that the discipline was heir, wittingly or unwittingly, to a number of assumptions about American democracy that became entrenched as social scientific common sense over the course of this wartime debate.6 First, American political scientists came out of the debate with their commitment to scientific naturalism intact. Indeed, their commitment was redoubled. Value skepticism, the erstwhile vice of scientific naturalism, had been turned by relativist theory into the central democratic virtue. Those who adopted a relativistic attitude toward values were being good democrats at the same time that they were being good scholars. Postwar democratic theorists were thus only too pleased to present their work as purely descriptive, purely positive, purely “behavioralist.” Most welcomed the epistemological reinforcement coming from logical positivism and emotivist ethical theory, that normative propositions have no cognitive standing. “[P]olitical philosophy is dead,” Peter Laslett famously announced, because normative concepts have no meaning. Others, such as David Easton, personally rejected ethical noncognitivism, but argued that for pragmatic reasons it was the correct ground for political theory.7 In Easton’s writings, as in that of other behavioralists, all metaphysical and normative notions such as right, sovereignty, public interest, and legitimacy were dropped, replaced by the neutral language of political process. Second, the rejection of moralistic, “ideological” politics as absolutist and totalitarian implied, by the logic of the democracy/totalitarianism dichotomy, that such politics was undemocratic and un-American. American

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politics at its best was “practical,” “pragmatic,” and preoccupied with the brokering of mundane “interests.”8 Richard Hofstadter, perhaps the most widely read historian of the 1950s and 1960s, exemplified the shift. As a young scholar in the 1930s, he was sympathetic to progressivism and the progressive view of history. But by 1948, he swept away the progressive notion that U.S. history was dominated by a broad ideological conflict between Hamiltonians and Jeffersonians, or between selfish economic conservatives and public-spirited reformers. Rival political camps, he now emphasized, carried out their struggles within a shared horizon of “capitalist culture.”9 Given Hofstadter’s own reform background, he wished to paint a sympathetic portrait of the populists and progressives. But the force of the democracy/totalitarian dichotomy carried him into criticism. The broad programs for social reform of the populists, while high-minded, now seemed overly ideological and utopian. Indeed, an analogy between American populism and the collectivist ideas of America’s totalitarian enemies lay just beneath the surface of The Age of Reform (1955), even down to details, as when Hofstadter noted the populist penchant for scapegoating and drew out from their rhetoric a previously undetected and latent anti-Semitism. As for the progressives, Hofstadter diminished them, and the relevance of their ideological commitments, by subjecting them to sociological and psychological analysis. Their interest in reform, and especially in guiding the hand of reform, was not so much a natural outgrowth of deeply held social ideals, but a response to, and compensation for, their loss of power and prestige in the new industrial order. In light of these reevaluations, the resistance put up by the American political system to comprehensive progressive reform programs now appeared as a sign of health, not dysfunction.10 In a less nuanced version of this position, Daniel J. Boorstin, another leading postwar historian, organized his entire narrative of U.S. history around the notion that the United States had enjoyed such a good run historically precisely because its politics is piecemeal and pragmatic rather than comprehensive and ideological.11 “The American mind,” Arthur Schlesinger Jr. concurred, “is by nature and tradition skeptical, irreverent, pluralistic and relativistic.” “Relativism is the American way.”12 Given the preponderant role of Protestant evangelicalism in nineteenth-century American politics, to have such statements coming from the leading professional historians of the day is extraordinary. These historians were among the most important voice boxes for the dissemination of the relativist persuasion among the educated public, but their narratives were really but projections into the past of an under-

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standing of democracy hammered into shape by social scientists reacting against totalitarianism.13 Third, process theorists adopted the notion that Americans share a procedural consensus that holds them together despite their substantive disagreements. Reason is instrumental—value conflict is not rationally resolvable—but, at least in the United States, conflict is contained within a consensus on how to carry on when faced with disagreement—through voting, bargaining, compromise, accommodation, and coexistence. What is more, it was not even necessary to assume that Americans were consciously committed to the idea of proceduralism (a proviso that doubtless helped protect the theory from easy falsification). As Harvard political scientist Benjamin F. Wright put it in 1958, “It was not the consensus of ideology” that Americans enjoyed. “It was rather the consensus rooted in the common life, habits, institutions, and experience of generations.”14 In the eyes of consensus theorists, moral relativism, or antiabsolutism, was not merely a premise in a philosophical argument for democracy. It was a lived reality. What process theorists saw when they looked at American society was, in Purcell’s apt gloss, “institutionalized relativism,” exhibiting openness, tolerance, and pluralism.15 Ethical relativism thus became, at one and the same time, the philosophical justification for democracy and the empirical foundation of it. To denote this procedural consensus at its most general level, many postwar democratic theorists adapted a term from the anthropologists. What held Americans together in the absence of agreement on fundamental values (in particular, in the absence of a common ideology) was a shared democratic “culture.” On its face, the turn to culture is puzzling, for one normally thinks of a “common culture” in the same totalizing terms that one thinks of an ideology. But the puzzle is solved once one appreciates the kind of culture that social scientists, beginning with Dewey, attributed to democracies. Democratic culture, in Dewey’s language, was a “scientific,” “experimental” culture characterized more by common attitudes and habits than common beliefs.16 Others elaborated the point, adding that it was also a “secular,” “skeptical” culture. In contrast to other political systems (in particular, in contrast to totalitarianism, which, it was argued, was held together by common adherence to a consciously cultivated ideology), democracy was held together by common adherence to a largely unconscious cultural tradition, understood as a set of shared attitudes and behavioral patterns. In Purcell’s words, “Democracy required a kind of unity to endure, but it was a pragmatic, relativist, cultural unity and not a theoretical, ethical, or

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absolute unity.”17 The notion that democracies were held together by a consensus on procedures, and that this procedural consensus was sustained by a skeptical, relativist, pragmatic, tolerant, “scientific” culture, became a hallmark of postwar political science. Fourth, having reduced all values to “interests,” democratic relativists, in keeping with their commitment to value skepticism and scientific neutrality, treated all interests as morally equivalent. Accordingly, the analysis of democratic politics shifted from normative concerns to the description of the process by which conflicts of interests are mediated. As one critic put it, “The ends of government and the justification of one policy or procedure over another are not to be discussed, according to the new view. The process of formulation is justification in itself.”18 Fifth, the attention given to interests over ideology, when combined with the assumption of American value pluralism, translated easily into the assumption that the really effective factor in American politics was a plurality of interests, organized as groups. Hanna Arendt in particular emphasized the deliberate effort of totalitarian regimes to “atomize” their populations, destroying parties, churches, unions, and any other group formation that might foster loyalties, ideas, or interests at odds with the state.19 By implication, the presence of a rich mosaic of groups and voluntary associations was taken as evidence of a healthy democratic society. This was true, even allowing for the tendency of groups to become politicized and press demands upon the government. The early decades of the century had been awash in journalistic and social scientific exposés of the insidious influence of “pressure groups” and “special interests” on the legislative process. What was new was the widespread sense of the beneficence of these activities, taken as a whole. They were now seen as the primary avenue by which governments become responsive to emerging social needs. The group approach to American government was not new, at least in broad outline. In the first decades of the twentieth century, Charles Beard and Arthur Bentley both argued for a reorientation of political science toward the study of economic interest groups. Bentley, whose major work in political science was even titled The Process of Government (1908), and who was frequently cited by postwar group theorists, has an especially good claim to being the godfather of postwar pluralist theory. But it is significant that both Beard and Bentley were marginalized by the political science profession during this phase of their work, and they both dropped out of the university system.20 Variants of these theories now swept the field. Indeed, for some, the activity of interests groups was part and parcel of the political process. To study the political process was to study groups.

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Sixth, the emphasis on groups accorded nicely with the notion that power was dispersed within the American political system. Indeed, having taken note of the diversity of competing interest groups in the United States, and having postulated their preponderant influence in political decision making, it was practically a direct inference that political power would be dispersed. As V. O. Key put it, in his influential writing on the subject, effective power was so dispersed in the United States that “the locus of power may shift from question to question and even from time to time on the same question.”21 American society was “pluralist.” Its pluralism of values produced a pluralism of groups, and its pluralism of groups produced a dispersion of power. This, too, provided a sharp contrast with totalitarianism, which was understood to concentrate power in the hands of a single individual (a Hitler or a Stalin). Carl Friedrich was one who helped accentuate the contrast, in terms directly relevant to the reversal of attitudes toward state autonomy. “The state,” Friedrich wrote, in a brief historical introduction to his authoritative treatment of totalitarianism: was recognized as a new order in the sixteenth century. Jean Bodin more especially formalized its understanding by linking the state with sovereignty. The claim that the ruler of a state must be sovereign, if the state is to epitomize a good order, amounted to claiming that the ruler must be free of all restraints. Jean Bodin did not, in fact, dare to go that far, though some of his more radical formulations do. But [Thomas] Hobbes did and thus completed the doctrine of the modern state . . . The genuine state concept calls for an absolute ruler, an autocrat. Friedrich concluded: “When seen in this perspective, the totalitarian regimes of the twentieth century are the outcome of movements directed against the denigration of the state in the liberal age.”22 After being given such a malodorous pedigree, it is no wonder that the concept of “the state” was dropped from descriptions of American democracy, and that “state autonomy” was dropped as an ideal. The broader the distribution of political initiative, and the more of it that came from outside the halls of government, the better. Seventh, the obvious corollary of the notion that power is dispersed in the American political system is that executive initiative (that is, state autonomy) is negligible. During the 1930s, The New Republic, like liberal opinion magazines generally, called out for strong executive leadership. By the onset of the war, it was jumping up and down for it. To win the war,

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the United States needed a decisive leader and a “strong centralized government largely controlled by the administrative branch.” Fortunately, America had Roosevelt, whom the magazine backed to the hilt. “All paths in Washington lead ultimately to the White House. Roosevelt is the key figure in the newly created World-Capital-on-the-Potomac.”23 Yet by the end of the war, the intellectual ideal for a political hero had been turned on its head, at least among intellectuals, who associated autonomous leadership and the cult of the leader with fascism. Liberal academic commentators on Roosevelt, such as Henry Steele Commager, now ran to the opposite extreme, giving the Roosevelt administration a stunning makeover. [C]ontemporaries tended to see in both the domestic and foreign policies of Roosevelt an abrupt and even revolutionary break with the past; they tended to personalize those policies, to regard them as largely an expression of Roosevelt’s character, to focus all their attention—both their devotion and their hatred—on the man in the White House rather than on the ground-swell of opinion to which he gave expression. We can see now that the “Roosevelt revolution” was no revolution, but rather the culmination of half a century of historical development, and that Roosevelt himself, though indubitably a leader, was an instrument of the popular will rather than a creator of, or a dictator to, that will.24 “Roosevelt,” Richard Hofstadter echoed several years later, “was content in large measure to follow public opinion.”25 The image of executive followership—part of the general downplaying of state autonomy—became a widespread feature of postwar democratic theory.26 Within political science, attention shifted from the executive, the arena of leadership and administration, to the legislature, the arena of interest equilibration. Eighth, all the above changes in emphasis were part of a dramatic reappraisal of the merits of existing American institutions and practices. Often, the very same features of American democracy that had attracted the condemnation of progressives were now counted as blessings. The reappraisal of political pressure groups is only the most obvious example among many. For example, the preponderant influence of elites, and especially of economic elites, in American governance now seemed benign, even beneficent, because elites were both more informed and more likely than the masses to evince the skeptical, tolerant, pragmatic spirit necessary to a democracy (an impression greatly reinforced by the experience with McCarthyism). Similarly, American political parties, always short on principle and clear policy

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positions, were now seen as important nonideological forums for compromise among conflicting interests and classes. Widespread voter apathy now appeared as a valuable counterweight to ideological politics. Even the bosses of the old urban political machines, who were once denounced as black widows amid webs of corruption, were now praised for their integrating function, harmonizing divergent interests and weaving diverse immigrant communities into the fabric of American life. The very same lack of principle that led them to sell offices to the highest bidder and to buy voter loyalty with occasional perquisites was now glossed as evidence of nonideological “moderation.” E. Pendleton Herring’s The Politics of Democracy (1940) was an important early source for all these reappraisals—and reappraisals they were. His first published work, Group Representation before Congress (1929), was the first major work on interest groups since Bentley’s, and it concluded with all the usual progressive warnings about interest groups undermining the “national point of view” and the “welfare of the whole.”27 As late as 1936, his refrain was the same, if not more urgent: There is need for promoting a purpose of the state over and above the purposes of the medley of interests that compose it. The preservation of the democratic process itself demands that some means be found for preventing the domination of organized minorities. The democratic state, to be consistent with its own principles, must preserve conditions under which a clear conception of the public interest can be formulated and presented to the voters.28 But by 1940, Herring was warning against applying unrealistic critical standards.29 The opening lines of the “Foreword” set the tone for the work as a whole. The purpose of this book is to analyze the politics of democracy in order to show the nature of our party system and its relations to other social processes. We shall examine the factors which are commonly treated as grave dangers to democracy: machine control, pressure politics, propaganda, monied interests, patronage, and bureaucracy. This is the rogues’ gallery of American politics. Undoubtedly much evil finds expression here. Yet these factors are but the reverse side of elements integral to the democratic process.30 His reassessment would be followed by that of many others, with ever fewer reservations entered.31 Having defined both the United States and

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democracy as the polar opposites of totalitarianism, it was a short step to present existing U.S. practices as defining features of a well-functioning democracy. Thus, while the postwar political scientific literature is filled with normative disavowals—“inquiry into how men ought to act is not a concern of research in political behavior,” wrote David Truman, in an utter commonplace32—naturalistic description of how American democracy “really worked” blurred with normative prescriptions of how a modern democracy ought to work. What this added up to was the “social conservatism” that these postwar social scientists were so often accused of by the generation coming of age in the 1960s. In reality, postwar social scientists were an overwhelmingly liberal cohort, the direct descendants of the progressives. But the encounter with totalitarianism, and the intellectual framework that emerged from that encounter, placed red flags on radical reform. As Purcell notes: By the early fifties many, like Boorstin, were equating all broad moral and social theories with ideology, pejoratively used to mean an unrealistic, moralistic absolutism that by its very nature endangered social tranquility. By discrediting ideology and morally based pleas for social change, they tended to equally discredit any call for a significant restructuring of American society.33 The very fact that the unity of the nation was understood to rest, not upon a common creed, but upon a common culture—a congeries of rules and behaviors unconsciously followed in everyday interactions—probably tended to magnify fears that dramatic social reconstruction might spark a social meltdown. Widely sympathetic to New Deal causes, and to the cause of black civil rights (especially after the confrontation with Hitler’s racial caste system), American social scientists were even more sympathetic to the case for gradualism. Finally, it is worth noting how all this led to a disavowal of prewar political science and its emphases. The “behavioralism” that social scientists wore on their sleeve after the war was in fact little more than a refurbishing of the scientific naturalism of their immediate predecessors. As John Gunnell notes, despite all the talk of a “behavioral revolution,” “it would be difficult to find any major tenet of behavioralism that had not been articulated by individuals such as Merriam and Catlin. Even its research practices were rooted in work that was well advanced in the 1920s and 1930s.”34 Yet their new orienting concepts placed them in such a different mental

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universe that they were apt to believe the change to be the consequence of a methodological break (rather than the ideological break that it was), and to use this as grounds for dismissing the frameworks and emphases of their predecessors as relics of a prescientific age. As David Truman wrote, quite unfairly: Until after World War II most political scientists were preoccupied with the formalities of government. Aside from those concerned with the speculative, philosophical side of the discipline, most of them focused their energies on descriptions of and commentaries on constitutions and formal institutions, with excursions, not necessarily minor, into prescriptions for change and for reform.35 Others acknowledged the scientific aspirations of the preceding generation, but dismissed their work as the mere collection of facts.36 Postwar political scientists thought of themselves as making a new departure, a properly scientific departure. They were therefore not inclined to cultivate, or even take cognizance of, the theoretical approaches of the past. Accordingly, the prewar interest of American political scientists in the possibilities of autonomous state action rapidly faded from the collective memory of the discipline. At the same time, the dark shadow of totalitarianism kept political scientists from pinning any hopes of their own on state autonomy or formative politics. And what is more, their new orientating emphases directed their attention away from the autonomy that the American state already enjoyed as a matter of empirical fact. These new orienting emphases—(philosophical) value relativism, (empirical) value pluralism, procedural consensus, nonideological interests, group process, dispersed power, executive followership, and the United States as the democratic ideal—together formed what David Ricci has called a “new liberal matrix” for postwar political science. Already by the early 1940s these emphases had crystallized into an analytic framework for the empirical study of democracy, notably in the trailblazing work of Carl Friedrich and Pendleton Herring, two of the most highly regarded political scientists of the period. Friedrich sketched the broad constitutional comparisons between democracies and dictatorships, while Herring, Friedrich’s colleague at Harvard, filled in the details of American proceduralist democracy. Similar crystallizations would follow, some as extensions of their work, others as new departures. For more than two decades, these emphases set the parameters of the leading paradigm of postwar political science—pluralism.

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Pluralism Pluralism, as a theory of governance, comes in a variety of flavors. But as this designation has come to be applied, what they all have in common is a claim that political power, or influence, is dispersed among a multiplicity of actors, each representing (formally or informally) a different social group or interest group. If populist democracy means majority rule, and oligopoly and dictatorship mean minority rule, then pluralism (or “polyarchy,” in the idiolect of one leading pluralist, Robert Dahl) means “minorities rule.”37 The overwhelming tendency of pluralists has been to see this arrangement as good—a system that is adaptive, because it is open to emerging social demands, yet stable, because group membership is multiple and overlapping; a system in which inequalities are quite real, yet largely benign, since most every group finds some form of representation in the halls of power, and since the influence of individual groups varies from time to time and from issue to issue.

David Truman and the Governmental Process As this minimalist definition makes clear, interest groups are quite central to pluralist theories. The most elaborate account of interest group politics came early on from David Truman. In his own words, The Governmental Process (1951) “is an effort to take the concept of group, especially the interest or ‘pressure’ group, as a primary unit of analysis, and to examine patterns of action on the governmental scene in such terms.”38 Like many other leading pluralists, Truman had been a student of Charles Merriam at the University of Chicago. But the continuity between Merriam and his students is more modest than usually imagined. When, in his work for the NRPB, Merriam sought to distinguish “democratic planning” from “totalitarian planning,” he cited interest group participation as one point of differentiation. Totalitarian planning uses command and control, while democratic planning solicits the input of trade association representatives and, to a more limited extent, labor and farm representatives. But in Merriam’s vision, it was the executive branch, rather than the legislature, that was to be the key site of interest group participation, and interest group influence was not to be direct, but mediated by an elite group of expert planners (namely, the NRPB members). The president was conceived as the real source of initiative in the system, with the planners merely advisory to the president, and the interest groups merely advisory to the planners.39

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The contrast with Truman is considerable. Writing from the perspective of 1970, Truman complained that The Governmental Process was “often misunderstood” to imply that “organized nongovernmental groups . . . have a monopoly of initiative in the system,” and that governmental actors are “mere passive recorders or referees of contests among such groups.”40 If this was a misunderstanding, it was one for which Truman bears the responsibility, since all his examples cut against the notion of state autonomy. His treatment of the executive branch, for example, suggests that the twentieth-century expansion of the executive’s activity in legislation and discretionary administration came in response to interest group claims on the government, and that it has only brought an increase in the play of these interests within the government. Furthermore, the exceptional cases of governmental initiative that Truman does mention are described as proactive responses to emerging interests not yet organized as groups.41 Absent is the notion that government might pursue ends of its own, distinct from those of private citizens, or the possibility that executives might carry into office, and seek to implement, political visions, or “ideologies,” that transcend the normal push and pull of interest group politics—visions like those of the Roosevelts, for example. But it is this absence that made The Governmental Process such an appealing image of American democracy for postwar social scientists. In this, The Governmental Process fell firmly within the postwar relativist framework. It also did so in every other respect. For example, the organized interest groups that march across the pages of Truman’s book are invariably of the mundane sort—labor unions, trade associations, farm lobbies, professional organizations, corporate lobbies—basically the major occupational groups (although with a few “community activity” groups such as the Anti-Saloon League thrown in). The basic image is not of ideological conflict, but of the mundane pursuit of economic support.42 Further, in keeping with the relativist framework, Truman justifies his focus on interest groups, to the exclusion of holistic entities such as “society” and “the state,” by denying that Americans share fundamental values. His dubious evidence was that even in war there are dissenters.43 Regardless, the existence or nonexistence of shared values is not even relevant to the question of the existence and autonomy of the state. The very flimsiness of the argument only evidences the extent to which the existence of value pluralism, and the diminution of the state, could be taken for granted. Also in keeping with the relativist framework, Truman professed naturalist premises—“inquiry into how men ought to act is not a concern of

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research in political behavior”44—but as with democratic relativists generally, this did not mean that Truman’s work was noncommittal. American democracy worked, and naturalistic descriptions of its operation blended into prescriptions for its preservation. “The great political task now as in the past is to perpetuate a viable system,” Truman declared in the concluding chapter.45 Whether this was universally the task that political actors of the past assigned themselves is doubtful, but it certainly was a task that Truman and his cohorts embraced. Truman’s contribution, as he saw it, was to reverse the judgment of previous generations who had seen organized interest groups as a threat to American democracy.46 Truman granted that the structure of American government—its open texture, its division into branches, and the dispersion of the responsibility of each branch across federal, state, and local levels— provides interest groups with numerous and diverse points of access.47 But on the whole, this was a strength, not a weakness. “This diversity assures a variety of modes for the participation of interest groups in the formation of policy, a variety that is a flexible, stabilizing element.”48 Meanwhile, an even more important source of stability comes from the structure of American group affiliations itself. The typical American is a member of a variety of groups. His “overlapping membership” means that each group of which he is a member, in order to maintain his allegiance, must guard against offending the sensibilities of the other groups in which he is a member. Since the range of other groups to which the various members of any one group belong is vast, the demands of this group (and of all groups) on government will tend to be both moderate and narrow, rather than extreme and comprehensive (that is, ideological). In sum, the open structure of government, combined with the overlapping structure of group affiliations, give the U.S. political system a “dynamic stability that permits gradual adaptation.”49 Of course, Truman’s emphasis on the stability of American interest group politics would have provided little consolation to his forebears, who were concerned about its consequences for the content of American governmental policy (especially as they saw this policy being biased in the direction of big business). But after the war (and despite the unprecedented degree of industry concentration and industry access to government that the war brought), the basic beneficence of the American system was taken for granted, and the stability of the system itself became a value. Finally, the most important source of stability according to Truman, and the feature of his account that most clearly marks it as a postwar product, is what he calls the American consensus on “the rules of the game.” Without

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a broad consensus on rules of the game, including “constitutionalism, civil liberties, representative responsibility, and the like,” the system would tear itself apart. But in describing what sustains these rules, Truman expressly rejects the notion that it is the work of (liberal-democratic) ideology. Constitutionalism, civil liberties, and so forth “are not . . . a sort of disembodied metaphysical influence . . . We know of the existence of such factors only from the behavior and the habitual interactions of men. If they exist in this fashion, they are interests. We can account for their operation and for the system by recognizing such interests as representing . . . potential interest groups in the ‘becoming’ stage of activity.”50 What Truman seems to be saying in this rather opaque passage is that these rules are not really rules but generalizations from patterns of behavior, that these patterns of behavior reflect interests, and that these interests have such influence on government conduct because they are the interests of “potential groups” that would form were these interests trampled on. The overwhelming impression left by a passage such as this is that Truman is forcing ideological factors (the “disembodied metaphysical influence” of notions of natural equality, the natural and God-given rights of man, and so forth, traditionally invoked to defend liberal-constitutional practices) into the mold of mundane interests. Elsewhere in the book, Truman provides a less obscure account of what lies behind the American consensus on “the rules of the game.” He does not use the term “democratic culture,” but he invokes its equivalents: widely shared democratic “attitudes” and “habit backgrounds.”51 These, and not a common ideology, are what solve the mystery of social order in a pluralist, relativist society. They represent a consensus of procedures rather than a consensus of ends or ideology— just the kind of consensus demanded by postwar liberal relativism.

Robert Dahl and the Electoral Process What David Truman did for interelection politics, Robert Dahl did for electoral politics. Both in terms of intellectual acuity and influence, Dahl was probably the foremost theorist of democracy of his generation. For Dahl, the core meaning of democracy is popular control over leaders and their decisions. More precisely, democracy, as an ideal, is a political system in which “the goals of every adult citizen . . . are to be accorded equal value in determining government policies.”52 Dahl did not believe that this ideal could be closely approximated in the real world. One of the central obstacles lay in the very nature of elections.

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“Strictly speaking, all an election reveals is the first preferences of some citizens among the candidates standing for office.” What elections do not do is reveal citizen preferences for policies. One minority segment of the electorate may vote for candidate A because it prefers his position on issue X, which is of most importance to it, even though it prefers candidate B on issues Y and Z. Another minority segment votes for A because it prefers his position on issue Y, even though it prefers candidate B on issues X and Z. And a third minority segment votes for A because it prefers his position on issue Z, even though it prefers candidate B on issues X and Y. Because of this variation in the way that voters rank issues—an artifact of variations in preference intensity—candidate A ends up with a winning aggregation of minorities, even though broad majorities would prefer the policies of candidate B. “This,” Dahl concludes, “is an instance, not of majority rule or even of minority rule, but of minorities rules.” Because, as in this example, policy positions are bundled with candidates, and furthermore because some voters reward or penalize a candidate for past (and perhaps irreversible) policies rather than current policy proposals, and because some voters don’t consider policy much at all when voting, elections tell us very little about majority policy preferences. By implication, elections can’t be counted on to make politicians responsive to majority preferences. Nor is the problem corrected in the interelection period, for, with most of the citizenry politically disengaged, “most interelection policy seems to be determined by the efforts of relatively small but relatively active minorities.” Making reference to the work of Arthur Bentley and David Truman, Dahl concludes that “neither elections nor interelection activity provide much insurance that decisions will accord with the preferences of a majority of adults or voters. Hence we cannot correctly describe the actual operations of democratic societies in terms of the contrasts between majorities and minorities. We can only distinguish groups of various types and sizes, all seeking in various ways to advance their goals, usually at the expense, at least in part, of others.”53 Nevertheless, it turns out that a system of “minorities rule,” while not exactly reflecting citizen preferences, is the only real safeguard against tyranny, whether of a majority or a minority. Through careful logical analysis, Dahl shows that formal constitutional checks and balances cannot be counted on to prevent majority tyranny. But if specific policies are, in the usual case, the product of “minorities rule,” then the worries of Madison, Tocqueville, and others about the tyranny of the majority is misplaced. (Unfortunately, Dahl gives us no reason to believe that the rather contrived

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electoral example he gives will be “the usual case.” But most of his readers were evidently inclined to go along.) “If majority rule is mostly a myth, then majority tyranny is mostly a myth too. For if the majority cannot rule, surely it cannot be tyrannical.” At the same time, “minorities rule” protects minorities. Because policy making is dominated by “relatively small but politically active minorities,” and because a group whose freedoms are under threat is liable to become politically active, this group will usually be able to check the grosser dimensions of the threat. In a telling piece of relativist arithmetic, Dahl even goes so far as to construe “intense preferences” as the modern equivalent of the “natural rights” that Madison wished to protect from majority tyranny. Not formal constitutional rights, or formal constitutional checks, but “social checks” are what protect minorities.54 Furthermore, the freedom that democratic leaders have from true majority control does not translate into autonomy of action, for they remain highly responsive to the politically active minorities that form their winning coalition. Elections, combined with continuous political competition among individuals and parties, make governmental leaders so responsive to non-leaders that the distinction between democracy and dictatorship still makes sense . . . Elections and political competition do not make for government by majorities in any very significant way, but they vastly increase the size, number, and variety of minorities whose preferences must be taken into account by leaders in making policy choices. I am inclined to think that it is in this characteristic of elections—not minority rule but minorities rule—that we must look for some of the essential differences between dictatorships and democracies.55 We have obviously traveled a long way from the progressive ideal of strong, independent executives subordinating minority interests to an expertarticulated national interest. “State autonomy” is now treated as a trait of totalitarian dictatorships. Protection of the interests of each minority, and responsiveness of government officials to the aggregate of minorities, are traits of democracies. And they are especially the traits of American democracy. “A central guiding thread of American constitutional development has been the evolution of a political system in which all the active and legitimate groups in the population can make themselves heard at some crucial stage in the process of decision.” As already noted, this is not the result of the formal constitution itself. “To assume that this country has remained democratic

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because of its Constitution seems to me an obvious reversal of the relation; it is much more plausible to suppose that the Constitution has remained because our society is essentially democratic.”56 Consistent with the consensus theory approach, Dahl downplays the import of official discourses of legitimacy—the stuff of “ideology”—and plays up the import of social conditions and culture in sustaining democracy. In particular, Dahl enumerates eight procedural rules, or norms, as preconditions of a responsive government—the eight defining characteristics of “polyarchy.” And while Dahl emphasizes that no society ever has, or probably ever could, express all these characteristics to a maximal degree, he closes A Preface to Democratic Theory with a brief history of the American Republic, in which he submits that, through contingencies of geography, demographics, and history, the United States, to a unique degree, has come to possess the characteristics of a polyarchy. Two years later, after describing de Jouvenal’s On Sovereignty as an example of “political theory in the grand style,” Dahl declares with satisfaction that in the “Englishspeaking world, this type of political theory is dead” because the basic “political problems have been solved.”57

An Evaluation In the writings of the postwar pluralists, American democracy, so recently maligned by American intellectuals for its lack of critical intelligence and its domination by special interests, was embraced as a domestic blessing and even as an international model. What passed as an objective description of existing institutions on this side of the Atlantic was posited as the ideal terminus of a process of political modernization overseas—the United States as the telos of history.58 Admiration for the U.S. political system was directed not at its substantive values, or the ends it pursued, about which there was almost complete silence. Admiration was directed instead at its procedures, at the process. This resolves the seeming paradox of a political science that, while professing to abjure value judgments, was clearly in sympathy with the U.S. political system. One could admire a process without making a value judgment—at least, so it seemed—because process was about the “how,” not the “what,” of politics. But the “how” of American politics that postwar political scientists conjured up—their model of American democracy—was skewed. It carried forward emphases and assumptions highly polemical in origin, born of the encounter with totalitarianism. The emphasis that leading pluralists such as Truman and Dahl place on value pluralism, on interests over ideology,

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on process over ends, on nonideological interest groups as the main actors in this process, on the dispersal of power, on procedural consensus as a substitute for shared values; and the de-emphasis that they place on formal constitutional structures, legitimating ideologies, and the notion of a public interest—all as part of a skeptical naturalism that nevertheless takes the United States as the norm of a well-functioning democracy—places pluralism squarely within the relativist framework, the “new liberal matrix” of American social science. I wouldn’t wish to deny the value of these pluralist theories, with their welcome aspiration toward holism, the range and interest of the evidence they highlight, their attention to institutions and activities beyond formal governmental structures, and the subtle analysis of numerous features of governance that they give. Clearly what they were describing had some basis in reality. Nevertheless, pluralist democratic theory has come in for a good deal of criticism over the years, much of it justified.59 For example, pluralist analyses of the dispersion of power have been criticized as methodologically flawed owing to their superficial, “one-dimensional” power concept. To understand the distribution of power, one must know not only who has influence over the final policy decisions, but also why some decisions are never made at all because the relevant issues are systematically excluded from the political agenda (the “second dimension” of power), and why some potential issues are not even perceived as such because of the forces of political education, propaganda, and other influences on political perception (the “third dimension” of power).60 Another oversight, of considerable proportions, was the failure of the pluralists to take note of, let alone develop concepts to adequately analyze, the rise of the national security state. Indeed, Dwight D. Eisenhower’s warning about a “military-industrial complex” was the first notice most Americans received of its presence. Trenchant criticism of pluralist theory for failing to attend to it came from the “elite theorists,” and from C. Wright Mills in particular, who, in The Power Elite, canvassed the presence within the executive branch of a “political directorate,” heavily comprised of corporate and military elites with no ties to regular party politics, whose wishes the “middle level powers” of Congress and interest groups could at best partially thwart.61 The escalation of the Vietnam War brought into focus both the power of the national security apparatus and its independence from normal political control. In this context, Mills’s writings became a crib sheet for student criticism of mainstream political science as neither neutral nor innocent, but complicit with “the establishment.” While unfair in detail, the oversight was real enough.

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Along a different line, pluralist theory may be criticized for its “consensus theory” assumptions. On the one hand, the eruptions of the 1960s and the subsequent culture wars certainly suggest that pluralists, like other consensus theorists, exaggerated the extent of the procedural and cultural consensus in the United States. On the other hand, pluralist dismissal of issues of legitimation as metaphysical surplusage left them insensitive to the role of substantive beliefs, including religious beliefs, in sustaining liberal democratic “rules of the game.” Pluralists optimistically asserted that Americans—or at least American elites—share a secular, skeptical, democratic culture that sustains their liberal democratic rules. Among other things, this generated the fanciful expectation that a secularization of the developing world would naturally lead to its liberalization. In contrast, the work of comparative historians and sociologists in the Weberian tradition strongly suggests that the liberal democratic rules of the game developed within a particular cultural matrix of Reformed Protestant pedigree. Although these rules have become detached from the confessional details of this matrix, many of their basic legitimating notions—the distinction between state and society, government on the consent of the governed, the notion of higher law and natural rights, and so forth—continue to draw strength from this deep cultural background.62 The “absolutist” critics of the scientific naturalists were thus not wrong in emphasizing the religious provenance of liberal democratic principles, although the attempt to connect them to Catholic theology in particular distorted the actual genealogy.63 Liberal democratic rules of the game are not the endpoint of a “natural” historical development, nor have they proven easy to transplant into other cultural milieus. Skocpol’s own criticism of pluralist frameworks, as already noted, is that they neglect the capacity of states—even Western, liberal democratic, “pluralist” states—“to formulate and pursue goals that are not simply reflective of the demands or interests of social groups, classes, or society.”64 In this connection, she suggests a return to a continental European perspective, particularly that of Weber, whose work on bureaucracy and administration emphasizes the state’s capacity for independent action, and she cites several contemporary studies that highlight the decisive role played by autonomously acting bureaucrats and civil service administrators in everything from mundane policy formation to “revolution from above.”65 I find the criticism thoroughly persuasive, and by now, many, many other examples could be adduced on its behalf. In line with this, although not emphasized by Skocpol, classical plural-

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ism also underestimates the autonomy of the elected political leader. The pluralist image of electoral politics is of coalition building among interest groups in the narrow sense. In Dahl’s language, democratic politics is a matter of “minorities rule,” and its signal virtue is that it secures a form of popular control of public policy. There is absolutely no doubt that assembling a working coalition of organized interest groups is an important dimension of democratic politics—important both for directly securing the votes of their members and for securing funds to pay for the enormous cost of a modern political campaign. But the political leader retains much greater independence from these interests than pluralism suggests—as, for example, the interests that orchestrated Theodore Roosevelt’s rise to the presidency found out, to their chagrin. Weber is a good example of someone who advocated democracy precisely because it secures autonomous political leadership. On the one hand, democracy allows leaders to transcend the influence of organized interests, especially economic interests. No system of governance can avoid the influence of money, but only systems of governance in which the ultimate currency of power is nonpecuniary and broadly distributed—as is the ballot—have any chance of escaping total dominance by the interests of financiers and bond traders.66 Yet the objective wasn’t for political leaders to be subjected to voter control instead. On Weber’s view, the measure of a political system is its ability to recruit political leaders who, in the face of public ignorance and indifference (and even at times in the face of uninformed, or shortsighted, or low-minded popular opposition), will take responsibility for the future of the nation and (if governing a world power) for the direction of world history. In other words, Weber’s writings on democracy were focused on how to best secure political leaders—leaders with the inner and outer capacity to act autonomously on behalf of the national interest and even the interest of humankind, as best they may determine it. His advocacy of extending the franchise was premised on his belief that, under modern conditions, political democracy is better able to secure such leaders than any known alternative. In this respect, it is hard to imagine an account of democracy more at odds with that of the pluralists. However one may feel about Weber’s concept of “leadership democracy,” his understanding of the relative autonomy of the democratic leader from organized interests comports with the evidence. In an important early study of the impact of lobbying on the legislative process, Lawrence Chamberlain found that of ninety major pieces of legislation from 1890 to 1945, only seven were the dominant product of interest group pressures,

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and four of these dealt with the tariff. What is more, none of the cases of successful interest group initiative lay in the period from 1931 to 1945, the era of massive New Deal and World War II legislation.67 This largely negative result has been repeatedly confirmed in later studies (although acknowledgment should be made of the difficulty of measuring influence, since reliable informants are scarce, with lobbies wishing to claim effectiveness, and legislators wishing to deny it). Definite cases of influence exist, with particular lobbies—such as the farm, insurance, and military lobbies— being noteworthy for their effectiveness year in and year out. But most scholars agree that the popular impression of their influence in initiating major legislation is exaggerated (however, their capacity to block legislation has become considerable, and will be examined in the next chapter). Surveying the legislative breakthroughs of the 1960s and early 1970s associated with the Johnson and Nixon administrations, and the proliferation of interest groups that accompanied them, Jack Walker concludes that: In all of these cases, the formation of new groups was one of the consequences of major new legislation, not one of the causes of its passage. A pressure model of the policymaking process in which an essentially passive legislature responds to petitions from groups of citizens who have spontaneously organized because of common social or economic concerns must yield to a model in which influences for change come as much from inside the government as from beyond its institutional boundaries, and in which political entrepreneurs operating from bases in interest groups, from within the Congress, the presidency, or many private institutions, struggle to accommodate citizen discontent, appeal to emerging groups, and strive to generate support for their own conceptions of the public interest.68 But the criticism that I wish to focus on at present is the normative one, that pluralist theory, despite presenting itself as positive science, had the consequence of legitimizing the ever greater influence of well-organized, well-funded interest groups in American government—indeed, of apportioning public authority among them—and of whitewashing the inequities and inefficiencies that this system institutionalized.

11 Interest Group Pluralism Institutionalized

That pluralist theory mutated from a “model of ” into a “model for” governance will come as no surprise, when it is remembered that a descriptive/ normative ambiguity was characteristic of pluralist theory from the start.1 Nor will it come as a surprise that it entered into circulation among political elites, especially at the federal level, given the continued permeability of the federal government to academic intellectuals after the war. Malcolm Moos, the coauthor of a popular government textbook that popularized the interest group approach, became a leading idea man in the Eisenhower administration.2 The pluralists John Kenneth Galbraith and Arthur Schlesinger Jr. played the same role in the Kennedy administration. By the time of the Johnson administration, pluralism had become elite common sense—Johnson’s signature style of “creative federalism” was none other than interest group pluralism in action.3 As a public philosophy, interest group pluralism was, as is so often the case, a bowdlerized version of its academic parent, showing even greater optimism that all of life’s interests are organized as groups, and that the strength of these groups is in rough proportion to the importance of the interest. And while academic pluralists, committed to value-free science, abjured talk of “the public interest,” the popularizers readily claimed that the public interest simply was the resultant of these interest group forces. It was in just such terms, for example, that Arthur Larson, a law school dean and one of Eisenhower’s most important advisers (appointed chairman of the U.S. Information Agency), praised Eisenhower’s administration. “It is the genius of the Eisenhower administration’s achievement that it has merged and brought into balance all the positive forces in our country. It is not against any of them. It realizes that they sometimes conflict, but it has found a way to encourage them to work together to a common benefit.”4 To give the new philosophy a respectable pedigree, James Madison was 217

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resurrected from (undeserved) obscurity, and his Federalist 10 was reread (and woefully misread) as the founding document for this model of government. But it would be more accurate to describe it, as does Theodore Lowi, as “the Adam Smith ‘hidden hand’ model applied to groups.”5 As a practice, interest group pluralism meant that, in policy area after policy area, interest groups were invited to participate in the “interior processes of policy-making,” as Schlesinger put it in a campaign tract on behalf of Senator John Kennedy.6 In the general case, these transgressions of the boundary between public and private occurred in the intestines of the federal regulatory agencies and commissions, where groups were invited to help determine the very standards by which they would be regulated. “Agency capture” is pluralist policy. Agriculture policy is one area where this was pushed to its extreme conclusion: At local levels, federal agriculture programs had always been corporative, with committees of local farm dignitaries applying the state and national standards to local conditions. President Kennedy proposed simply to bring this pattern to the center and to have the farmers, represented by group leaders, set the standards as well as apply them. Essentially, this was NRA applied to agriculture.7 Although agricultural programs provide the extreme case, analogous patterns developed in Commerce, Labor, and in any number of Great Society programs, which were ultimately deflected from their intended purpose because of it. Practices adopted out of necessity by the Roosevelt administration in a time of war, depression, and federal weakness were now being adopted in a time of peace, prosperity, and federal strength under the encouragement of pluralist ideology. What is more, the practice of direct interest-group representation was gradually extended from administrative agencies to the other branches of government, in such forms as special assistants to the president and in congressional caucuses. The generation of political leaders who embraced these practices—and who tried to sell them to the public with appealing, though misleading, labels such as “creative federalism,” “local autonomy,” “self-government,” and “participatory democracy”—seem to have sincerely believed that in doing so they were securing a new, broader, more direct representation of the public in the process of government. They were minimizing the need for explicit legislation—authoritative acts that declare what shall be right and what shall be wrong—and replacing it with a process of ongoing negotiation in which government coercion, and government value judgments, appeared to evaporate. The problem of public authority was solved.

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But this was wishful thinking. Lowi, one of the first and most trenchant critics of the new regime, noted that the real upshot of a fully institutionalized interest group pluralism8 was the parceling out of public authority to cartels of private interests, whose “policies” (the bargains struck among themselves and agency officials) were just as authoritative as those of legislatures, but who were less accountable to the public. Indeed, unlike agency personnel, who at least could be hauled before Congress, they were not accountable to the public at all. What is more, these cartels, brought to life by the agencies they were asked to assist, were naturally dominated by the interests of the most powerful players in the industry, who, like the largest farmers who dominate the farmers’ cooperatives, were taken as most “representative” of the industry. Indeed, in a suggestive essay, Terry Moe, writing from the perspective of the “new economics of organization,” argues that the erection of an independent agency with vague statutory directives is, from the point of view of a dominant interest group, the ideal arrangement— even better than no regulation at all—in that it allows the group to secure favorable policy and to protect the policy from future changes in the political winds.9 Thus, the institutionalization of interest group pluralism established a system of governance that shut out the public and handed over control to the most narrowly interested parties, and what is more, to the biggest and strongest of them. On the classic analysis, this led to the formation, in any given policy area, of an “iron triangle”—a symbiotic relationship between a peak representative group or lobby, a government agency, and key members of the congressional committee or subcommittee handling the relevant policy area—that locked in these advantages. Each leg of the triangle lent support to the other two in their political struggles for survival and gain. Campaign contributions and industry information flowed from the interest group to congressman and agency; legislative support flowed from the congressman to the agency and interest group; and desired regulations flowed from the agency to the interest group and congressman—to the mutual benefit of all at the expense of the public purse. This was just the kind of cartelization of public authority that progressives had hoped to avoid. But the collapse, amid an antitotalitarian panic, of Roosevelt’s effort to centralize control over federal agencies left much of this control with congressional committee members, who became the foundational legs of the policy triangles. Meanwhile, pluralist theory, itself a product of antitotalitarian reaction, encouraged and legitimized the arrangement. Interest group pluralism, which promised to make the exercise of government authority more democratic, more representative, more responsive,

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and more legitimate, made it less democratic, less representative, less responsive, and less legitimate. Was it more democratic? Whenever Congress delegates governance responsibilities to independent agencies—in particular to agencies without specific legislative guidelines—it, of course, reduces the direct authority of democratically elected representatives. But progressives had seen this practice as a way to strengthen rather than weaken democracy, in that it took those matters of public concern that were most technical in nature out of the hands of amateur politicians and interested parties and placed them in the hands of public-spirited experts who were better situated to dispose of them in the public interest. The encounter with totalitarianism, however, cast suspicion on the notion of autonomous governance by keepers of the public interest. Interest group pluralism promised a safer, better arrangement by giving direct representation within these agencies to society’s organized interest groups. But already in 1938 James Landis, a leading proponent of the progressive model, had pointed out what would be a key blindness of the interest group model: To restrict governmental intervention, in the determination of claims, to the position of an umpire deciding the merits upon the basis of the record as established by the parties, presumes the existence of an equality in the way of the respective power of the litigants to get at the facts . . . In some spheres the absence of equal economic power generally is so prevalent that the umpire theory of administering law is almost certain to fail.10 Landis was here raising the problem of such a system’s equity. Indeed, the problem goes deeper, in that the interest group model failed to appreciate the collective action problems prohibiting the resource-poor, or the numerous and scattered, or the mildly afflicted, from organizing at all so as to make their case. For being a Smithean model, interest group pluralism had little of the sensitivity of Adam Smith for the relative ease with which certain private interests, especially business interests, are organized, and the great difficulty with which worker, consumer, and general public interests are organized. Also, there were factors beyond collective action problems that prevented some legitimate interests from organizing—factors such as violence and the threat of violence. The plight of American blacks in the South especially gave the lie to the notion that postwar interest group politics was open to the interests of all. If by “democratic” one means an

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equal weighting of the interests of all individuals in the policy calculus— and this was the standard that pluralists such as Dahl explicitly advanced— then it isn’t at all clear that interest group pluralism was an improvement over the progressive model. As E. E. Schattschneider quipped in 1960, “The flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent.”11 Was it more representative? Like syndicalism and guild corporatism, which it loosely resembles, pluralism supposes that when one has represented all the particular interests of society—that is, when one has represented society in its particularity—one has represented the whole. Carter, for one, came to question this proposition, and he left office with this warning: Today, as people have become ever more doubtful of the ability of the government to deal with our problems, we are increasingly drawn to single-issue groups and special-interest organizations to ensure that, whatever else happens, our own personal views and our own private interests are protected . . . This is a disturbing factor in American political life. It tends to distort our purposes, because the national interest is not always the sum of all our single or special interests.12 There need be nothing metaphysical about this notion of “national interest.” It may simply express the distinction between, for example, the very particularized and immediate interest that a fisherman has in raising the catch limit and the general interest that everyone has in the long-term viability of the fishery. Progressives would have added to this what Weber called the “autonomous political interests” of a nation—including preeminently the interest in national strength and the quality of the national character. These are diffuse interests rarely represented by individuals in their particularity. Schattschneider in particular argued that powerful interests will always prefer a narrow field of conflict, such as a congressional committee, where they can dominate, over an expansive one, such as an election, where they are numerically overwhelmed. The weakest, least organized interests—which includes most public interests—are precisely those to which a system of interest group representation is least responsive. Was it more responsive? Political scientists theorized interest group pluralism as a flexible system, adapting to emerging social needs as these organized themselves into interest groups. But the emergence of iron triangles showed how interests powerful at the outset of a program could lock in their own advantages, making it inflexible and unresponsive. Was it more legitimate? To those steeped in the ideology of interest group

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pluralism, perhaps. But the broader public, speaking an older language of morality and fairness, only became increasingly alienated from an expanding government that was attacking many problems but providing little public rationale for its policies, or even making clear what these policies were. For in interest-group politics, no public justification accompanies government policy. One can only point to the process from which it emerged. This was hardly enough to lend it legitimacy in the eyes of those with a more traditional understanding of representative government.

Neopluralism, Hyperpluralism, and Legislative Standstill Criticism of the initial institutionalization of interest group pluralism— especially of the system’s equity—did not go unheeded, and the Democratic administrations of Kennedy and Johnson sought to redress the problem, but they did so from within the pluralist paradigm. Rather than try to roll back the power of the existing interest groups, they fostered and funded countervailing interest groups that would provide support for their own, liberal agendas. The Kennedy administration, for example, helped along the nascent women’s movement by fostering groups such as the National Organization for Women.13 Johnson, as was his wont, did his best to outshine Kennedy, in this respect as in others. And with the Great Society and the War on Poverty, he succeeded brilliantly. These programs created activist government agencies and bureaus that helped foster and finance a vast array of new voluntary associations—from senior citizen to communityaction groups. Partly, these associations were instituted to help administer the programs, organizing both the service providers and the recipients of the new public largesse. But they were also instituted to lobby Congress and subsequent presidencies on the programs’ behalf.14 Together with the new breed of “public interest” and citizens’ groups organized by political entrepreneurs such as Ralph Nader and funded by wealthy individuals and elite foundations such as the Ford Foundation, they generated what political scientists have come to refer to as the “advocacy explosion” of the 1960s.15 These weren’t exactly the seeds of group politics that classical pluralist theorists had envisioned. The pluralist image of individuals spontaneously organizing around their shared interests was increasingly at odds with the reality of individuals being organized by government agencies, foundations, and wealthy individual patrons. The growth of such patronage practices in turn gave rise to the phenomenon of the staff organization with virtually

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no membership but with a pot of money to throw around, raising real questions about just what was being represented in “group” politics.16 The agendas of these new groups often departed from the classic pluralist image as well. Public interest groups, like Common Cause—organized to combat the influence of special interests—and “single issue” groups, such as the Sierra Club, broke the mold of mundane economic interest groups, in that they focused on such “ideological” issues as the overall organization and values of the government and the economy. Even more directly in violation of pluralist strictures was the crashing of the interest group party by a host of religiously based groups with explicit moral agendas such as the Moral Majority (1978), the Christian Law Institute (1972), the National Jewish Commission on Law and Public Affairs (1965), and Catholics for a Free Choice (1972), among many others.17 Nevertheless, many academic commentators welcomed these developments. They noted that, whatever the origins and directions of these groups, their proliferation had the beneficent effect of breaking up many (if not all) of the old iron triangles, transforming them into more benign “issue networks,” or even looser and larger “concatenations,” of agency officials, legislators, lobbyists, academics, and journalists, all contributing to the criticism of legislation and agency action and the formulation of alternative approaches.18 So-called neopluralists argue that this has resulted in a system of countervailing power along the lines of what classical pluralists had envisioned (although, unlike classical pluralists who see policy as a direct resultant of these rival interest pressures, neopluralists are more apt to see these pressures as canceling each other out and therefore returning autonomy to agency officials and legislators, rather like Madison envisioned).19 Yes, there was a massive countermobilization by business in the 1970s.20 But no worries: the ascent of Reagan reenergized liberals, who organized yet more groups, reinstating the balance. But a funny thing happened on the way to neopluralism. The system of countervailing interest groups didn’t free up the hand of government. Instead, it tied it down more than ever. In an important book on the subject, Jonathan Rauch records his conversation with Dan Walters, a Sacramento Bee columnist who has covered California state government for years and has been witness to the impact of the interest group deluge on it. “‘The process has slowed and slowed and slowed. In terms of major policy stuff, absolutely nothing gets done.’ On education, health, tort reform, and other major issues that energize interest groups, there are ‘no major policy decisions whatever. This is a total lock-up situation.’ ”21 It is a conclusion increasingly

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converged upon by scholars from a variety of directions: the government has lost its capacity to govern.22 Perhaps that is not putting it exactly right, for Congress continues to pass a remarkable volume of law. Govern, it does. The point, rather, is that it has lost the capacity to redirect itself. Unable to shed its obsolete programs and regulatory regimes, it is unable to free up resources and legal space for major assaults on new problems. The problem is not that interest groups are steering the ship of state. As noted earlier, the evidence is largely negative on the ability of interest groups to initiate major legislation. But they have proven remarkably effective at holding on to what they have, blocking all legislation that would eliminate their benefits directly or indirectly.23 With a thousand separate threads, they’ve tied down the steering wheel to its present course, leaving only the smallest play for whatever leader might grab the helm. The new legislative landscape was clearly marked in Reagan’s farewell address to administrative officials, the significance of which was not understood at the time. “A triangle of institutions—parts of Congress, the media and special interest groups—is transforming and placing out of focus our constitutional balance. . . . Some have used the term ‘iron triangle’ to describe what I’m talking about.” It works “to focus debate and overwhelming resources—like campaign money and letter writing campaigns—on issues that don’t command broad and intense national attention.” As a result, public policy is deflected from the interests of the public at large. “Special interest groups focus all their resources and members on this line or that in the budget. And members of Congress . . . with the dependence on special interest campaign financing and their fear of bucking any group that is strongly committed to a spending program, take up the banner and join the charge.”24 Reagan’s seemingly unwitting reconstruction of the classic iron triangle could easily appear to be nothing more than the product of mental confusion, born of Reagan’s simultaneous animus against liberal interest groups and “the liberal media.” “As any undergraduate political science major knows,” writes Paul Peterson, “the third member of the fearsome iron triangle is the executive agency, not the news media.”25 Indeed, secretiveness is what made traditional triangles effective—the clandestine campaign contribution, the quiet appointment to an agency advisory board, the small insertion in the appropriations bill. Media exposure was what they, at all costs, wished to avoid. But Reagan was not so confused. He was pointing to a new phenome-

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non wherein lobbies draw on the technologies of mass communication to mobilize support. They fax journalists, take out advertisements like the famous Harry and Louise commercials, ply their mailing lists with stories of impending doom (First they’ll cut your Social Security benefits, then they’ll cut the whole program! First they’ll make your register your firearm, then they’ll take it away!), and send out chain e-mails with the phone numbers of congressmen to call. And the truth is, these strategies usually work. A politician isn’t going to get reelected for having been part of a coalition that eliminated the sugar subsidy, a couple of outdated dairy programs, and a surplus army base. These actions may be in the public interest, but that interest is diffuse. Instead, the thanks he will get is to face well-funded opposition at the next election, for the pain of the cuts will have been focused, the target group of the cuts will have been mobilized, and the retaliation will be swift. No congressmen get hurt if the programs stay. But they get hurt if they go. So the programs stay. As Clinton’s own National Performance Review put it, “the federal government seems unable to abandon the obsolete. It knows how to add, but not to subtract.”26 This is the new triangle: congressman, lobbyist, media. Call it the “electronic triangle” in honor of the computing power that makes it possible. The result is an accumulation of interest group lobbies with their hooks deep in the governmental beast. The wool subsidy, for example, was instituted in 1954 when wool was a “strategic commodity” used in military uniforms. The American Sheep Industry Association was founded the next year, and magically, the program lives to this day, decades after the military turned to alternative materials. Similarly, Veterans Administration hospitals that are half empty today not only remain open, but also remain restricted to veterans, protected from commonsense reform by a host of veterans lobbies. The Rural Electrification Administration (subsequently renamed the Rural Utilities Service) still glows brightly decades after rural America has been fully electrified. Such programs live on despite their obsolescence, and despite repeated efforts by reformers to lay them to rest, because in every case an interest group has made them their own. The pluralist image of an equilibrium of forces determining a fixed point of coherent policy has become a reality of contradictory handouts and protective regulations, distorting resource allocation and reducing competition and the incentive for innovation. This, of course, means a sizable loss to the economy. But perhaps more worrisome, because these programs are locked in, it also means the loss of government as a problem-solving force in society.

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People sometimes look at Franklin Roosevelt’s period of governmental experimentation and say, “If we could do it then, we should certainly be able to do it now.” But they miss the point, which is that society has changed. In a society dense with professional lobbies, FDR’s brand of experimental central government cannot exist . . . He was able to move programs into place quickly . . . On November 2, 1933, he was giving a proposal for a Civil Works Administration employing people to repair streets and dig sewers; by November 23, the program employed 800,000 people, and five weeks later, 4.25 million, or fully 8 percent of the American workforce. Just as important, Roosevelt was able to eliminate programs. He ordered the Civil Works Administration shut down at winter’s end; its total life span was only a few months . . . In those days, the government had some capacity to move programs on line quickly, try them out, and then get rid of them when their time had passed . . . Today we must expect that anything the government tries this year will still be with us fifty years from now.27 The public today complains of a large, wasteful, and increasingly ineffective government, and not without reason. But what members of the public fail to note is that it is their own organization into thousands of interest groups that has made the job of public servants impossible. The majority of Americans now belong to at least one organized interest group. The problem is us. But there is no stopping it. Owing to the logic of collective action, our individual interest in organizing swamps our collective capacity for restraint. The truth is, politicians don’t like this state of affairs any more than the public. Indeed, it was the politicians themselves who coined the phrase “gridlock” to describe their situation in Washington. Despite this, these same disgruntled politicians have been unable, or unwilling, to collectively curtail the traffic, for fear of the electoral consequences. Indeed, talented leaders—especially those with robust reformist agendas—have repeatedly tried to clear the streets. Reagan tried, Clinton tried, and Newt Gingrich tried. All even had effective control of Congress when they made their attempt. But all failed, with their congressional allies picked off one by one by the powerful lobbies whose programs were on the chopping block.28 The electronic triangle defeated them all. This is the most sobering fact of all about the current system: the system won’t allow for sweeping change, nor can the system itself be swept away. It is the new environment in which

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the government must operate, and it turns Washington into a quagmire, full of furious motion, much splattering of mud, but little real movement. It would be an exaggeration to say that the government’s capacity to address problems has evaporated entirely. Sometimes the stars align. With strong leadership, agreement between the two parties, and interest groups divided, things can still happen (for example, the welfare reform bill of 1996). An internal crisis, or an external jolt, can also help, shaking things loose enough, for long enough, that something can be done—as when the Enron scandal pushed campaign finance reform over the top, or the terror attacks of September 11, 2001, precipitated homeland security legislation. But these are increasingly the exceptions. The problems remain numerous: health care, Social Security, energy, urban decay. But the public won’t accept higher taxes, and old programs can’t be shut down. Clinton, coming into office with an ambitious legislative agenda, left with a legacy of “microinitiatives.” It is a sign of the times. Did pluralist theory do all of this? Surely not—not even most of it. Many factors besides the currency of pluralist theory have been plausibly adduced to account for the proliferation of interest groups in U.S. society: cultural values (Tocqueville); increasing social complexity and differentiation (Truman); social disturbance (Truman); increasing affluence; the decreasing costs of organization (Olsen, Rauch); the growth of government programs (more goodies at stake) (Olsen, Rauch); the decline of parties (Schattschneider); the favorable legal and tax environment (Walker); the decentralization of American government; the increasing number and power of congressional subcommittees, which provide increased nodes of access; and the opening of Congress sessions and committee meetings to public view, which, ironically, by allowing interest groups to monitor the behavior of congressmen, increases lobby effectiveness. Surveying all the plausible explanations that have been offered, one can conclude only that the causes have been multiple, and the general direction of change inevitable, pluralist theory or no pluralist theory. The growth of interest-group lobbying in other countries, including some relatively untouched by pluralist theory, is sufficient evidence that these practices do not wait on the permission of theory to operate. But pluralist theory has played its part in exacerbating the problem. First of all, it has legitimated interest group access. Studies show, rather unsurprisingly, that the conception legislators hold of the proper role of interest groups in the legislative process affects the access and influence of interest groups in the legislature.29 Thus, where the theory of interest group pluralism treads, interest group access follows.

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Second, it has accelerated the proliferation of interest group lobbies, not only by laying down a welcome mat for them in Washington, but also by inspiring active government organization and funding of such lobbies. Finally, the perdurance of pluralist theory as a legitimating ideology blunts the forces for reform of the legislative process. The American public controls its government, not as a unified general will, or even as a majority, but as a congeries of particular wills. Almost everyone is a member of a group, and every group has locked in a piece of public largesse, leaving little money for tackling new problems and little flexibility for adjusting current approaches to old problems. This is pluralism—or as James A. Thurber calls it, hyperpluralism. It represents the full bloom of divided power—power parceled out all over America. It is popular control of the “direct” variety. Congress, as well as the presidency to the extent that it must act through Congress, has been rendered virtually powerless to effect change. (The partial exception that proves the rules is foreign policy, where interest group activity is less well developed, and where the president can frequently bypass Congress.) In a sense, pluralist theory became a self-fulfilling prophecy. In its academic heyday, it was massively falsified by the presidential and congressional initiatives of the New Deal, Fair Deal, and the Great Society. These initiatives were not the result of interest group bargaining, but of leadership. They brought interest groups in their train, however, both as a matter of natural growth and of public (pluralist) policy. These groups, which represent us in our particularity, continue to have their way in the retention and piecemeal expansion of existing programs. But neither the public nor its leaders can impose coherence or new direction. Here is the paradox that is difficult to understand—the government has become unresponsive to us because it has become so responsive to us. It has become unresponsive to us as citizens because it is responsive to us as members of interest groups. It is not a case of the people versus the government, but of the people versus themselves. Interest group politics leaves the public locked in a giant tragedy of the commons.

12 Totalitarianism and the Rediscovery of Civil Liberties

With the decline of Keynesianism, American liberalism has become preeminently a liberalism of the law, especially of constitutional law, with the Bill of Rights as its soul. Whereas progressives had written off the legal profession, discountenanced the Constitution, and viewed the Supreme Court as the enemy’s battering ram, postwar liberals flocked to law schools, resanctified the Constitution, and came to see the Court as the front line of reform. At the same time, the role of the Court in the constitutional system flipped. Prior to World War II, the Court was a central player in battles over the regulation of the economy but had little to say on cultural issues, and almost never invoked the Bill of Rights.1 Indicative is the fact that Walter Lippmann simply assumed the Supreme Court lacked authority to review the 1925 Scopes decision—“guilty of teaching evolution”—figuring that what was taught in the schools was strictly a state matter.2 Since the late 1930s, however, the Court has dropped much of its economic jurisprudence, but has become a central player in the cultural sphere. What is more, within this sphere, the Court has not been a mere conservative force, as it arguably was in the economic struggles of yesteryear. On the contrary, its actions helped initiate today’s culture wars, by imposing, rightly or wrongly, an alien set of civil libertarian values on local communities that previously had regulated themselves. As a consequence, cultural politics has increasingly become judicial politics. The prospect of Court vacancies swings presidential elections; the Senate confirmation process becomes a test of partisan loyalties; impending Court decisions on major cultural issues precipitate a flood of amicus briefs and phone calls to the Court from ordinary citizens, much of it orchestrated by interest groups that act as if they were lobbying the legislature. The encounter with totalitarianism lies at the root of these developments. Although some intellectuals had already begun warming to civil 231

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liberties after witnessing the heavy-handed tactics used to secure citizen loyalty during World War I, it was the encounter with totalitarianism that sparked the mass conversion of intellectuals to the religion of the Constitution and the Bill of Rights. And it was this same encounter that launched the Supreme Court on its program of nationalizing and radicalizing this religion.

The Court’s Late Turn to Civil Liberties It is difficult to appreciate, four decades after the zenith of the Warren Court, how startlingly new is the Court’s role as protector of personal and civil liberties. The jaws of students drop when they discover that the Bill of Rights offered Americans no protection from state and local ordinances and actions until well into the twentieth century, when portions of it were finally “incorporated” into the Fourteenth Amendment’s declaration that “No State shall . . . deprive any person of life, liberty, or property, without due process of law.” But so it is. As late as 1956, Robert Dahl could write that Americans are inclined to believe that the Supreme Court is the deus ex machina that regularly saves American democracy from itself. This view is difficult to support by the actual decisions of the Court. The Court performs some indispensable functions by means of judicial review, but preventing national majorities from destroying key prerequisites of political democracy is not one of them. I assume that the “key prerequisites of political equality and popular sovereignty” are the right to vote, freedom of speech, freedom of assembly, and freedom of the press . . . In the only four cases in the entire history of the Court where legislation dealing with the key prerequisites has been held unconstitutional [—cases dealing with the rights of blacks—] the decisions prevented Congress, not from destroying basic rights, but from extending them. Thus, there is not a single case in the history of this nation where the Supreme Court has struck down national legislation designed to curtail, rather than to expand, the key prerequisites to popular equality and popular sovereignty.3 What explains the Court’s sudden preoccupation with these rights and freedoms? One explanation that will not do is that it was a response to the vast increase in size and scope of the federal government ushered in by the New Deal. This will not do, because, overwhelmingly, the laws the Court

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began to strike down in the postwar period were local ordinances that fell within a heretofore unbroken tradition of protecting “community standards.” They were not new restrictions imposed by the federal government. The real story is almost the opposite—that the Court, as a national institution, began to impose a new set of liberal values, widely shared among national elites, on a recalcitrant periphery. The first step, then, toward understanding the Court’s postwar jurisprudence is to understand the general conversion of national elites to civil libertarianism.

A Brief History of Civil Liberties in the United States “Today,” Eric Foner notes, “when Americans are asked to define freedom, they instinctively turn to the Bill of Rights and especially the First Amendment, with its guarantees of freedom of speech, the press, and religion.” We have come to think of personal rights as the heart of American freedom, and point to the Bill of Rights as evidence that they have been at the heart since the founding. “Yet,” as Foner continues, “the Bill of Rights aroused little enthusiasm on ratification and for decades was all but ignored. Not until the twentieth century would it come to be revered as a quintessential expression of American freedom.”4 Indeed, the purpose of the Bill of Rights was to placate the Antifederalist opponents of the Constitution who defined liberty in terms of local self-rule and who feared that the new national government would encroach on this freedom. Leading Federalists such as Madison and Hamilton, in contrast, argued that a national bill of rights was unnecessary in a republican regime in which the people are both the rulers and the ruled. To ease ratification of the Constitution, however, Madison promised to personally lead the fight for a Bill of Rights in the new Congress. True to his word, “James Madison initiated the proposal for amending the Constitution, but it was perhaps the most lukewarm introduction in political history. The Annals of Congress, the early version of the Congressional Record, show Madison as saying again that a national bill of rights was unnecessary and dangerous, but since he had promised one, here it was.”5 Madison even tried a backdoor maneuver that would have turned the Bill of Rights into an instrument of national power. His proposal to grant the national legislature the power to overrule state legislation having been defeated, Madison hatched a plan to have the Bill of Rights protect individuals from both federal and state regulations, thereby enhancing the authority of the federal courts over the states. But his proposed amendments

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to this effect were rejected again and again. In short, the Bill of Rights, which today is read as the great protector of individual liberty, began as almost the opposite. It was a document restricting federal interference with local self-rule, meaning local regulation of the speech and activity of individuals, state establishment of religion, and suchlike.6 This is quite in keeping with the understanding of liberty in the revolutionary era. The robust concern of Revolutionary-era Americans with liberal institutional devices for taming the abuses of central government has led to the false inference that they must have held a liberal conception of the self and social order. In fact, to the extent that they entertained an image of the autonomous individual, or expressivist individual, it was the very image of the sinful self.7 The truly free individual, in contrast, was a moral individual, dependent on communal restraints and a rigorous process of character formation, and perhaps divine aid, to break with the licentiousness of natural man. Of all the moral and political frameworks at the disposal of this generation of Americans—Reformed Protestantism, republicanism, moderate Enlightenment rationalism, Scottish Common Sense and moral sense philosophy, and the common law—all emphasized the precedence of the public good over the interests of the particular individual. Indeed, “individualism” was not even a word in the English lexicon until Tocqueville was translated, with apologies from the translator for the barbarism.8 Radically individualist values did break onto the scene in the aftermath of the Revolutionary period, carried by elements of the Jeffersonian party, and later by the loco-foco branch of the Jacksonian party. But the focus of this strain of individualism was much more on economic liberties—agitation against the “Monster Bank,” against acts of “special incorporation,” and against “economic royalists” in general—than on what we recognize today as civil liberties. In any case, these elements were a minor voice in the Democratic Party, which was more noted for its corporatist notions of democracy, and whose leading light at midcentury, Stephen Douglas, was still insisting that the essence of freedom lay in local self-determination (including, notoriously, the determination of whether to admit or prohibit slavery). The American Whig Party, however, thoroughly rejected radical individualism, as well as radical democracy, preferring the Scottish concept of a naturally social self and the common law concept of a well-ordered society.9 Meanwhile the eccentric individualism of the Transcendentalists (Emerson and others) was in general not oriented toward formal legal rights, but selfcultivation.

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The Civil War gestated a “new birth of freedom,” but the emphasis was on political rights (the right to vote), economic rights (the right to the fruit of one’s labor), and equal protection of the laws for blacks. Personal liberties in the twentieth-century sense were in general not at issue, and certainly were not at the center of the social philosophy of Lincoln, who, for example, was several times willing to suspend such a well-established legal right as the writ of habeas corpus (that is, holding prisoners without charge) under the pressure of war. Nor were individualism and individual rights at the center of the Progressive era. If anything, progressivism was antagonistic toward individualist values, associating them with economic laissez-faire and Social Darwinism. The touchstone of progressivism was order and uplift, not the liberation of the individual. If progressives talked about freedom, it was for the need to overhaul its received meaning, from the individualist notion of freedom of contract to the participatory notion of “industrial freedom”—worker participation in economic decision making, through unions freed from managerial and court interference. But tellingly, the more usual term for this was “industrial democracy.” The overwhelming sense among progressives was that industrialization and urbanization had rendered obsolete economic individualism and the contractualist understanding of freedom. World War I occasioned a new round of talk about freedom, primed by the newly created Committee on Public Information. But democracy was still the master concept, with communalist overtones. “Making the world safe for democracy” meant “self-determination of peoples” abroad—a communalistic rather than an individualistic notion—and “industrial democracy” at home. At least this was the promise, quickly broken at war’s end. In any case, the war was not a fight for individual liberties. As Foner notes, “For all the administration’s exalted rhetoric, the war inaugurated the most intense repression of civil liberties the nation has ever known. It laid the foundation . . . for one of the most conservative decades in American history,” through passage of the Espionage Act of 1917 (which covered much more than espionage), the Sedition Act of 1918 (criminalizing statements, spoken or written, criticizing the American form of government or advocating opposition to the war effort), the mass arrest of the leaders of Industrial Workers of the World, and the campaign for “100 percent Americanism” among immigrants (which found its correlate in the revival of the Ku Klux Klan).10 There was surprisingly little opposition, even among progressive intellectuals, to these measures.11 In the 1930s, support for certain civil liberties—especially for free

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speech—did finally gain critical mass among elites, including justices of the Supreme Court. Civil liberties had yet to acquire their modern meaning, however. In these years, they were overwhelmingly understood as economic rights rather than as personal rights. As Michael Klarman notes, “during the interwar period, free speech was understood to be predominantly a labor union issue, involving protection for the rights to organize, picket, and boycott. To modern eyes the extent of the identification of free speech with the agenda of organized labor during these years is quite extraordinary.”12 Finally, it should be noted that the early Roosevelt administration was of a piece with the progressive tradition in its neglect of personal rights. As put by a leading historian of New Deal liberalism, “the interest in individual and group rights that became so central to postwar liberalism—the source of both its greatest achievements and its greatest frustrations—was faint, and at times almost invisible, within the New Deal itself.”13 All this would change with the rise of the totalitarian enemy. In response, a critical mass of the intelligentsia—academics, lawyers, artists, journalists, and New Deal reformers, including the president—brought civil liberties into the progressive mainstream. Roosevelt, the master political strategist and rhetor, had already initiated the change to the vocabulary of freedom in his salesmanship of the New Deal. Reviving Jefferson’s dictum that necessitous men are not free, Roosevelt defined economic security as a part of freedom and an American birthright. In line with this, he dropped the label “progressive” in favor of “liberal” to describe himself and his social welfare programs, effectively co-opting a term traditionally associated with policies of laissez-faire.14 And he began substituting “industrial freedom” and “the rights of free labor” for the progressive term “industrial democracy,” in expressing his support for collective bargaining and labor laws. Roosevelt’s rights strategy was further broadened in the late 1930s, after Southern conservatives, ever anxious to protect “Southern democracy” from federal interference, abandoned Roosevelt in his fight for executive and judicial reorganization. Roosevelt, unwilling to give up on his vision of progressive governance, decided that the best way to break the stranglehold of Southern conservatives on the Senate, and to turn the Democratic Party into a genuine liberal party supportive of a central administrative state, was to open Southern elections to blacks and poor whites—a large pool of likely New Deal supporters who were being denied their “voting rights” through poll taxes and, in the case of blacks, myriad other devices

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of discrimination and intimidation. In other words, Roosevelt had thought up another way in which “rights talk” could be commandeered, shifting the emphasis from rights that protect people from the central government (property rights and states’ rights), to rights that protect people by the central government (programmatic rights, such as the right to economic security, and now political participation rights, such as free speech and voting). But, as we will see, it was the reaction against totalitarianism that gave Roosevelt and his Justice Department the rhetoric they needed to push this agenda forward. This reaction also broadened and deepened liberal commitment to civil liberties and civil rights well beyond considerations of political expediency. Unlike World War I, which was widely cast as a struggle against particular ethnic traits—with Americans in the role of fellow Anglo-Saxon democrats and the Germans in the role of naturally authoritarian “barbaric Huns”15—the official enemy in World War II was a political form—fascism, or totalitarianism. The struggle was therefore cast in more thoroughly political terms.16 If fascism meant state control of mass communication, America must stand for freedom of speech and of the press; if fascism meant persecution of religion, America must stand for freedom of religion; if fascism meant the restriction of public gatherings and of the movement of peoples, America must stand for freedom of association and freedom of movement. And the most difficult contrast of all: if fascism meant racism, America must stand for racial and ethnic harmony and cooperation. These values, always more prominent in the writings of European classical liberals and radicals than in the practice of American democracy, were now touted as the very essence of America. Anyone who surveys the academic journals in this period cannot fail to notice that, by the close of the 1930s, essays on “the meaning of freedom” are dripping from the presses, with many authors finding new luster in the idea of “negative freedom”—freedom from interference—now applied to civil liberties rather than the rights of property. The academics were not alone. In 1939, as part of the sesquicentennial celebration of the Constitution, the legislatures of Massachusetts, Connecticut, and Georgia finally ratified the Bill of Rights, which for various reasons they had refused to do at the Founding and only now felt the symbolic need to do.17 Roosevelt joined in, and in 1941 his administration led the celebration of the 150th anniversary of the Bill of Rights (an anniversary that had gone unmarked in 1841 and 1891).18 Indeed, Roosevelt’s “Four Freedoms,” the ideological centerpiece of his war aims, represent a winsome blend of Progressive era economics (freedom from want, freedom from fear) and wartime, civil libertarian anti-

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fascism (freedom of speech, freedom of worship). “Freedom” pulled ahead of “democracy” as the official credo of America.

Civil Libertarianism on the Court The Court’s participation in the transformation of the meaning of America in a civil libertarian direction in this period is most clearly illustrated by the Court’s dramatic reversal of itself in the Jehovah’s Witness cases. In 1940, the Court upheld, with only a single dissent, the decision of the school board of Minersville, Pennsylvania, to expel the Jehovah’s Witnesses William and Lillian Gobitis, ages ten and twelve, for refusing to salute the flag in the school’s “pledge of allegiance” ceremony because of the biblical injunction against the worship of graven images. Felix Frankfurter delivered the opinion of the Court, in the following terms: The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization. “We live by symbols.” The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution . . . The precise issue, then, for us to decide is whether the legislatures of the various states and the authorities in a thousand counties and school districts are barred from determining the appropriateness of various means to evoke that unifying sentiment without which there can ultimately be no liberties, civil or religious. One might question the wisdom of the expulsions, Frankfurter suggested, but “the courtroom is not the arena for debating issues of educational policy.” The preciousness of the family relation, the authority and independence which give dignity to parenthood, indeed the enjoyment of all freedom, presuppose the kind of ordered society which is summarized by our flag. A society which is dedicated to the preservation of these ultimate values of civilization may in self-protection utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties.19

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Such a decision should not surprise us. It was in keeping with the Court’s tradition of upholding the regulatory power, or “police power,” of local authorities in the area of civil liberties. Furthermore, as we have heard again and again since the September 11, 2001, attacks, heightened national security concerns naturally place pressure on civil liberties. Indeed, the law clerks referred to Gobitis as “Felix’s Fall of France” decision.20 What is remarkable, then, are not the instances during World War II and the Cold War in which the Court accepted a narrow interpretation of civil liberties (as here, and as in Korematsu and the communist cases), but the number of times and areas in which it rejected this impulse and even pushed in the other direction. The Jehovah’s Witness cases are a case in point, for in 1943, the Court expressly reversed its 1940 decision, and the marks of antitotalitarianism are all over it. While Frankfurter’s 1940 decision had made no mention of the Bill of Rights, speaking instead of “liberty of conscience” as the (obviously relative) claim to be balanced against the state’s interest in social solidarity, the 1943 decision, authored by Justice Robert H. Jackson, invokes the Bill of Rights in several places, and gives the First Amendment a remarkably absolutist interpretation. Analogizing the action of the West Virginia Board of Education with the Inquisition, which it in turn analogizes with totalitarianism, the Court describes all three as attempts to impose a uniform set of values on a population. National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our constitution compulsion as here employed is a permissible means for its achievement. Ultimate futility of such attempts to compel coherence is the lesson of every such effort, from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings . . . We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional

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eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.21 The Jehovah’s Witness cases are paradigmatic for the Court’s new departures across the constitutional terrain. If we look at the record of the Court through the Warren years, we see that almost without exception, the Court’s “activist” decisions were framed rhetorically by an explicit or implicit contrast with totalitarianism. This was true of its religion cases, as we have just seen. It was also true of its other First Amendment cases—free speech, academic freedom, obscenity, and freedom of association and movement—as well as its race cases, its cases on criminal procedure, and its privacy cases—indeed, almost all the new constitutional lines it took up. The excerpts below are representative. Reading over them, the reader may suspect that the antitotalitarian rhetoric is just window-dressing for decisions decided on other grounds. But what subsequent chapters will show is the striking absence of clear and consistent doctrinal grounds for these early decisions. In these decisions, the “rhetoric” is doing the heavy lifting. Criminal procedure: Hitler’s SS and Stalin’s purge trials gave Americans their first close look at the operations of a police state, and they were horrified. The justices were, too, and a host of new rights for criminal defendants began to flow from the Court, including many that we today take as bedrock, such as the right to legal counsel (Gideon v. Wainwright [1963]) and the right to confer with counsel while under questioning (Escobedo v. Illinois [1964]). By the time of these cases, the totalitarian contrast was so familiar that it could be made in a couple veiled yet pointed references.22 But oftentimes, the contrast was more explicitly drawn. In 1940, in a celebrated coerced confession case, Justice Hugo Black, writing for the Court, indirectly alluded to Nazi practices in overturning the convictions.23 More than two decades later, in another coerced confession case,

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the same language of condemnation was still in use, with Justice William J. Brennan Jr., writing for the Court, quoting the Court of Appeals in the case: “All decent Americans soundly condemn satanic practices, like those described above, when employed in totalitarian regimes. It should shock us when American police resort to them, for they do not comport with the barest minimum of civilized principles of justice.”24 Relatedly, in a dissent in Feldman v. United States (1944) (allowing the use in federal court of self-incriminating testimony given in a state court that recognized no privilege against self-incrimination), Black argued for the extension of the Fifth Amendment protection against self-incrimination to defendants in state court (an “incorporation” of the Fifth Amendment that the Court eventually made): “The protections explicitly afforded the individual by the Bill of Rights represent a large part of the characteristics which distinguish free from totalitarian government.” Frankfurter, while an opponent of Black’s incorporation strategy, used similar language to defend the writ of habeas corpus in Brown v. Allen (1953), arguing that its availability “in our legal system and the unavailability of the writ in totalitarian societies [is] naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments.” Meanwhile, in Irvine v. California (1954), a case decided before the Fourth Amendment protection against search and seizure had been fully incorporated, the Court upheld a conviction based on evidence collected through invasive state police surveillance. However, “[t]he justices were not happy about the result. All nine found the police conduct outrageous, three saying it smacked of totalitarianism.”25 They soon incorporated it, and in Alderman et al. v. United States (1969), a search and seizure case throwing out evidence collected through electronic eavesdropping, Justice Abe Fortas wrote: “It is a fundamental principle of our constitutional scheme that government, like the individual, is bound by law. We do not subscribe to the totalitarian principle that the Government is the law, or that it may disregard the law even in pursuit of the lawbreaker.”26 Free speech: In Terminiello v. Chicago (1949) (striking down a “breach of the peace” ordinance used to convict Terminiello for verbally abusing a crowd and inciting scuffles), Justice William O. Douglas wrote for the Court, “The right to speak freely and to promote diversity of ideas and programs is . . . one of the chief distinctions that sets us apart from totalitarian regimes.”27 Academic freedom: In Wieman v. Updegraff (1952), the Court reinstated Oklahoma state college professors dismissed for failure to take a loyalty

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oath. Black concurred: “In my view this uncompromising interpretation of the Bill of Rights is the one that must prevail if its freedoms are to be saved. Tyrannical totalitarian governments cannot safely allow their people to speak with complete freedom. I believe with the Framers that our free government can.” And Frankfurter, in a separate concurring opinion, quoted with approval from a speech of Robert M. Hutchins that totalitarian regimes cannot tolerate “free universities,” and that is why they will fail. Obscenity: In Byrne v. Karalexis (1969), involving a sexually explicit film, Douglas dissented from the Court’s reticence to strike down local obscenity laws: “If ‘obscenity’ can be carved out of the First Amendment, what other like exceptions can be created? . . . Now that the first Amendment applies to the States . . . may the States embark on such totalitarian controls over thought or over the press? May Congress do so?” Freedom of association and movement: In a concurring opinion to Aptheker v. Secretary of State (1964), which ordered the return of revoked passports to ranking officials of the Communist Party of the United States, Douglas wrote: “Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interests of security. That is why riding boxcars carries extreme penalties in Communist lands. That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes, yet abhorrent in the United States.” Privacy: In Poe v. Ullman (1961), which on technical grounds ducked deciding on the constitutionality of Connecticut’s ban on contraception, Douglas wrote the dissent that blazed the trail to Roe v. Wade (1973). Enforcement of the Connecticut law, he argued, would necessitate “an invasion of the privacy implicit in a free society.” “[A]llowing a state that leeway,” he added, in explanation of his intuition, “is congenial only to a totalitarian regime.” Then, in Griswold v. Connecticut (1965)—the bridge decision to Roe that struck down the Connecticut statute—Justice Arthur J. Goldberg wrote a concurring opinion in which he cited Douglas’s dissent and added his own totalitarian contrast: While it may shock some of my Brethren that the Court today holds that the Constitution protects the right of marital privacy, in my view it is far more shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against . . . totalitarian limitation of family size . . . Yet, if . . . a law outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law

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requiring compulsory birth control also would seem to be valid. In my view, however, both types of law would unjustifiably intrude on rights of marital privacy which are constitutionally protected. Communism: The most obvious exception to the Court’s civil libertarian swing involves its communism cases, in which, up until 1957, the Court consistently upheld convictions of Communist Party leaders under the Smith Act—a 1940 law making it a criminal offense to advocate, or to organize an association advocating, the overthrow of the U.S. government by force or violence. The ability of these cases to confound the Court’s civil libertarians is well exampled by Judge Robert H. Jackson. Jackson was the author of the sweeping language in Barnette that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” to which he brashly added, “If there are any circumstances which permit an exception, they do not now occur to us.” Such circumstances eventually caught up with him. Jackson served as the chief prosecutor in the Nuremberg trials and confronted the evidence that Hitler may never have gained power had the Weimar Republic clamped down on his Brown Shirts. Returning to the Supreme Court, Jackson began to draw distinctions among dissidents and entered the ranks of those upholding the communist convictions, on the grounds that, with conspiratorial groups, the “clear and present danger” test will not be met until it is too late, and therefore must be sidestepped. Indeed, Jackson’s opinions in cases such as Terminiello (1949) and Dennis (1951) are short courses on the history and tactics of “totalitarian parties,” including especially the exploitation by totalitarian parties of the civil liberties of their host country until such time as they can assume power and abolish them. Judicial wrangling in the communist cases was thus between those justices such as Black and Douglas who, on antitotalitarian principle, wanted to protect free speech and free association rights, even for communists, and justices such as Jackson, Frederick M. Vinson, and Frankfurther, who, also on antitotalitarian principle, believed that communists, as totalitarians bent on the violent overthrow of constitutional government, exempted themselves from these protections.28 In sum, although the communism cases were, until 1957, an exception to the Court’s move toward civil libertarianism, this exception was itself made on antitotalitarian grounds, making it the exception that proves the rule. *

*

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Other cases in each category could be cited, especially if one includes cases with more indirect references to totalitarianism. And other categories could be cited as well.29 But the pattern should be clear: the image of German Nazism and Russian communism provided the defining Other for the Court of what was acceptable in a “free society” like America, and this negative image bears considerable responsibility for pushing the Court, and the country’s educated elite in general, in a civil libertarian direction.

Southern Totalitarianism There is also an overarching pattern, or pair of patterns, to these decisions that further bespeaks the role played by totalitarianism in focusing the Court’s vision. The most salient is the Court’s effort to rein in the South. Nothing on the American scene so reminded the Court of Nazism as the Jim Crow South, with its racism and its use of terror and police brutality to preserve itself. Indeed, liberals began drawing the “Deutschland and Dixieland” analogy as early as 1935.30 At Nuremberg, Hermann Göring defended Germany’s treatment of the Jews as really no different than white America’s treatment of blacks. Add to this the Cold War imperative of cleaning up the image of the United States in the eyes of the nonwhite world, and one understands why the elimination of Southern totalitarianism became a Court priority.31 Roosevelt deserves credit for setting the stage for the Court’s efforts, even if his motivation was more political than strictly antiracist. When Southern conservatives in Congress turned against Roosevelt’s program for labor rights and state-building, Roosevelt began devising strategies for reconstructing “Southern democracy” so that it would send up more liberal delegations. He began with a frontal assault—an attempt to “purge” some of the most conservative Southerners in Congress by supporting their liberal opponents in the primaries. An abject failure, this left as a strategy the elimination of the poll taxes, grandfather clauses, and lynchings that kept from the polls the blacks and poor whites who were most likely to support Roosevelt’s governance vision. Because Southern Senators were successfully filibustering all federal legislation to this end, Roosevelt plotted an indirect, judicial strategy to accomplish it. While there is no direct evidence that Roosevelt used support for civil rights as a litmus test for his Supreme Court appointments, all were in fact sympathetic to the cause. And we do know that at this time he directed his Justice Department to form a Civil Rights Section and encouraged its staff to push the Court to grant constitutional protection to voting rights.32

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Roosevelt’s political interest was thus a significant (and too long neglected) force behind the Court’s civil rights and civil liberties revolution— but it did not act nakedly. The specter of totalitarianism gave Roosevelt a rhetorical foil for his campaign. In the run-up to his purge campaign, Roosevelt gave a speech in Georgia in which he called for an end to the South’s “feudal” system, noting that there was “little difference between the feudal system and the Fascist system. If you believe in the one, you lean to the other.”33 In context, Roosevelt was probably alluding more to the economic system of the South than to its racial system. But the onset of war, and the growing revelations about Hitler’s treatment of Jews, insured that race would henceforth dominate the analogy. These developments would also push the liberal commitment to civil rights well past considerations of political expediency. As Mary Dudziak notes: The thinking that World War II was a war against racial and religious intolerance, and that the United States stood to gain from promoting equality at home was so widespread that Frank Sinatra even sang about it. The lesson of his short film The House I Live In was that racial and religious intolerance were ‘Nazi’ characteristics . . . This Oscar-winning film ended with Sinatra singing, “all races and religions, that’s America to me.”34 In every major military conflict, from the War of Independence on, African Americans had willingly sacrificed their blood with the hope and expectation that their service to their country would earn them equal treatment when the war was over. Time and again their hopes had been dashed. But a war fought against racism was another matter. In 1942, Attorney General Francis Biddle issued a circular to all U.S. attorneys, advising them that “a further disregard for civil rights can only be viewed as distinctly injurious to national moral [sic] and subversive of the democratic ideals which this nation is seeking to defend . . . You are directed to employ every facility available to your offices to secure the cooperation of state and local officials to prevent and rectify situations constituting a threat to the Federally secured civil rights.” Through both the Truman and Eisenhower administrations, each of which was anxious to deny the Soviets the propaganda tool of U.S. racial discrimination, this directive would never let up.35 In this atmosphere, the Roosevelt Court, with the strong encouragement of the Justice Department, began chipping away at the legal basis of segregation—striking down the “white primary” (Smith v. Allwright [1944]); state-mandated segregation of interstate passenger lines (Morgan

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v. Virginia [1946]); racially restrictive housing covenants (Shelley v. Kraemer [1948]); segregated railroad dining cars (Henderson v. United States [1950]); and in effect mandating the integration of graduate and professional schools (Sweatt v. Painter [1950] and McLauren v. Oklahoma State Regents [1950]). In Brown v. Board (1954), the biggest civil rights case of them all, the justices made no explicit mention of totalitarianism, but the analogy was still on their minds. In judicial conference discussing Brown, Black, himself a former member of the KKK, noted that many Americans were rethinking their views on race, wondering how “Hitler’s creed” was any different from “what the South believed.”36 Brown, and the civil rights cases leading up to it, are the most obvious instances of the Court’s assault on Southern totalitarianism. Less obviously, the Court’s leading free speech decisions were also part. Harry Kalven and others have noted the substantial number of free speech decisions from the Warren era that grew out of the civil rights movement. NAACP v. Alabama [1958], declaring a new First Amendment right of association, derived from Alabama’s efforts to suppress the litigation arm of the civil rights movement in retaliation for its pursuit of racial desegregation. New York Times v. Sullivan [1964], a landmark First Amendment decision establishing constitutional protection against defamation lawsuits by public officials, likewise arose from Alabama’s effort to harass individual civil rights leaders. Similarly, NAACP v. Button [1963], extending First Amendment protection to litigation as an expressive activity, derived from Virginia’s attempt to suppress the NAACP owing to its school desegregation efforts. [And] many other[s].37 So also were the Court’s decisions on criminal procedures, the vast majority of which stemmed from Southern cases involving mistreatment of black defendants, including such landmark cases as Chambers v. Florida (1940) and Mallory v. United States (1957), clamping down on the use of coerced confessions; Gideon v. Wainwright (1963), establishing the right to counsel for indigents in state trails as well as federal trials (besides Florida, only Mississippi and South Carolina did not offer counsel to indigents by this time); and Coker v. Georgia (1977) forbidding the death penalty for the crime of rape. Even Miranda v. Arizona (1966) fits the mold, which Chief Justice Earl Warren pushed as leveling the playing field for impoverished blacks, who were unlikely to have a lawyer on retainer or be cognizant of the full range of their legal rights.38 Finally, the Warren Court’s

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effort to continue reform of the political process should also be included under this rubric, including Harper v. Virginia Board of Elections (1966), eliminating the poll tax (of the several states still imposing poll taxes in 1966, all were in the South); and Powell v. McCormack (1969), in which for the first time the Court claimed power to intercede in the internal affairs of Congress, in order to declare that Congress could not refuse to seat Adam Clayton Powell, the militant Harlem civil rights activist, on (welldocumented) grounds of corruption, or any other grounds except the express constitutional requirement that a congressman be twenty-one years old, seven years a citizen, and a resident of the electing district.39 All these cases, even those that did not explicitly invoke totalitarianism—and many of them of course did—were nevertheless part of a systematic antitotalitarian campaign. Other factors abetted the Court’s dismantling of the legal underpinnings of Southern democracy. As we have seen, Roosevelt’s Southern strategy for the Democratic Party, and the civil rights advocacy of his Justice Department, were early helps. This, in turn, was made possible by the growing political power of northern blacks—a consequence of blacks’ northern migration (which made them an important voting block in many northern states), urbanization (which facilitated black collective action), and economic gains. Furthermore, the forceful critique of scientific racism launched by the anthropologist Franz Boas and his students in the 1920s and 1930s doubtless increased the receptivity of American intellectuals to the cause of civil rights for African Americans. Nevertheless, it is hard to imagine the widespread sympathy of northern whites, and the especially strong sympathy of Jews, to black struggles for civil rights in the South without the recent memory of the German racist state, and hard to imagine as much support coming from Washington without the “Cold War imperative” of competing with the Soviet Union for the sympathy of the dark-skinned developing world. The ideological sea change brought on by the rise of Hitlerism and Stalinism seems the predominating factor behind this dismantling.

Catholic Totalitarianism The other, somewhat fainter pattern that pervades the postwar Court’s rulings is a subtle campaign against the pre-Vatican II Catholic Church in America (and to a lesser extent, against Southern Protestantism). This may surprise, given the prevailing notion that World War II brought Catholics, like Jews, into the American mainstream. This, however, is one area in

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which liberal elites emerged from the war less tolerant than the public at large. In the 1920s, American intellectuals had been coming around to the support of Catholics, then under heavy fire from the KKK and Protestant fundamentalists. Al Smith’s 1928 presidential campaign was one bellwether. Pierce v. Society of Sisters (1925) was another, with the Court overturning a 1922 Oregon law that, in a slap at Catholic schools, required students to attend public schools. The Court followed this with Cochran v. Board of Education (1930), allowing Louisiana to purchase textbooks for parochial school students. But a sharp about-face occurred after the Methodenstreit of the late 1930s, when, as we saw in Part III, scientific naturalists, under heavy criticism from Catholic intellectuals for their “moral relativism,” turned the tables, arguing that the “moral absolutism” of their Catholic critics was the real root of totalitarianism, and the Catholic Inquisition its prototype. The early support that Mussolini and Franco received from many American Catholics, and from American bishops most of all, seemed to confirm the association, and by the end of the war, it had become liberal common sense. The Catholic Church in America was hierarchical, separate, and indigestible, with a dogmatic, authoritarian culture hostile to freedom of religion and speech, and perhaps incompatible with democracy. This thesis was the touchstone of a major postwar multidisciplinary research agenda, involving leading lights of the age. Paul Blanchard’s American Freedom and Catholic Power (1949) caught these winds. Arguing that communism and Catholicism were the two major threats to American democracy, the book became a best seller, with 40,000 copies sold in its first three months, and received warm praise from such impeccable liberals as Dewey and Kallen.40 The Supreme Court also caught these winds.41 Frankfurter, having praised Pierce when it was handed down in 1925, in 1944 suggested to Justice Wiley B. Rutledge that the Court might “rue” its implications.42 Everson (1947) was a case in point. A 5–4 decision, it allowed public funds to be used to pay the bus expenses of Catholic students, even while invoking Jefferson’s metaphor of a “wall of separation between church and state.” The decision was widely criticized by liberals, and assailed by the law school professoriate. Black, who had written the majority opinion, fell in line at the next opportunity, authoring the 8–1 majority decision in McCollum v. Board of Education (1948) that, to the great relief of the liberal intelligentsia, prohibited “release time” religious instruction on school property. And Black privately promised he would give the Catholics no further ground.43

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Other disestablishment cases followed, including Torcaso v. Watkins (1961), declaring unconstitutional Maryland’s requirement that all public officials affirm a belief in God; Engle v. Vitale (1962), striking down the Regent’s Prayer that opened school days in several New York school districts; and Flast v. Cohen (1968), declaring unconstitutional the Elementary and Secondary Education Act of 1965 that released federal funds to both public and private schools serving low-income children. All these cases, it should be noted, spoke to religion per se, and not to Catholicism in particular. But it seems significant that, prior to 1963, every case in which the Court found a violation of the establishment clause came out of a Catholic setting or Catholic state. The one exception is McCollum, which came out of Champaign, Illinois, and involved Protestant and Jewish religious instruction as well as Catholic. But as just discussed, in context, it too was seen by the Court and by the liberal press as a Catholic case. If this is right, then we must reject the easy assumption that the Court’s disestablishment of religion was a response to the growth of religious diversity in the United States, or was part of a change in regime to the Democratic Party, with its Catholic and Jewish constituency. We must reject this, because the Catholic Church was the prime loser in these cases. And although most Jews supported them, it is implausible to imagine a geographically concentrated group comprising only 3 percent of the population wielding this kind of influence, without the massive ally of an elite liberal ideology associating the state propagation of values with totalitarianism. Indeed, the pattern of action against the Catholic Church was not restricted to disestablishment cases. It also included the Court’s leading obscenity cases—such as Bantam Books v. Sullivan (1963), Memoirs v. Massachusetts (1966), and Redrup v. New York (1967), protecting censored books and other printed materials; and Kingsby Pictures v. Board of Regents (1959) and Freedman v. Maryland (1965), dismantling state film censorship schemes. It also included its marital privacy cases (discussed above), all of which came out of states with heavy concentrations of Catholics—New York, Connecticut, Maryland, Rhode Island—where the laws and practices, while often the handiwork of nineteenth-century Protestants, had been subsequently imbued with Catholic content. Not until the late 1950s did liberal opinion toward Catholicism thaw, and tellingly, this was in good part because U.S. Catholics, in the labor unions and elsewhere, proved such staunch anticommunists.44 In sum, a remarkably high proportion of the Court’s postwar constitutional departures fall under the rubric of Americanizing—that is,

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liberalizing—what it viewed as the totalitarian segments of American society—the caste system of the deep South and the Church controls of urban Catholicism. This puts the Warren Court especially in a new light. Commentators, whether sympathetic or hostile, have generally agreed that the Warren Court advanced a “countermajoritarian” jurisprudence; yet this appears not to have been the Court’s intention. As Lucas A. Powe Jr. puts it suggestively, “If discrete and insular minorities are the key [to Warren Court constitutionalism], then possibly the Court could be better seen as attacking (rather than protecting) them on a national (rather than a local) scale.”45 The more likely story is that the justices, like liberals generally in this period, held exaggerated views of the breadth and depth of the postwar “liberal consensus.” To be sure, they sometimes intervened on issues over which they knew the country was closely divided—as in Brown v. Board and Roe v. Wade—seemingly with the expectation (sometimes met, sometimes not) that the country would soon catch up with them.46 But at other times, to their evident surprise, the lines they pursued had little support outside an educated liberal elite—as in some of their decisions on criminal procedure (Escobedo v. Illinois; Miranda v. Arizona), on religion in the schools (Engel v. Vitale; Abingdon School District v. Schempp), and in their (exculpatory) 1957 communist cases (Service v. Dulles, Watkins v. United States, Sweezy v. New Hampshire, Yates v. United States, and others). It was public distress over these decisions that, beginning with Barry Goldwater, helped bring conservatives out of the political wilderness, allowing them to capture first the Republican Party, and then the national government, including (partially) the Supreme Court itself.47

Why the Court? But even allowing that the Court generally believed itself to be acting within a “liberal consensus,” this leaves untouched the question of why in so many of these reform areas the Court, now stocked with New Dealers weaned on the ideal of judicial deference, should have believed itself justified in taking the lead, instead of waiting for federal legislation. In some cases, the Court could well argue that legislatures were incapable of making a needed reform—for example, in legislative redistricting it was unlikely that elected representatives would right the representational inequities that put them in office in the first place. In most instances, however, it is simply not true, as often claimed by Court defenders, that the relevant reforms would never have occurred but for judicial intervention. In the area of criminal procedures,

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for instance, the expectation in the mid-1960s was that Congress would step in with the needed national standards, and the prestigious American Law Institute was putting together a credible reform proposal for Congress that had the support of the American Bar Association. Warren had to go to some lengths to preempt their work with a batch of criminal procedure cases, including Miranda.48 Similarly, the deeply entrenched folk wisdom that Brown crystallized the civil rights movement and was therefore indispensable to it simply does not hold up to historical scrutiny.49 For the Court to intervene like this, and to do so in a sustained manner, it was not enough for it to acquire a new set of values. It needed to formulate a new constitutional philosophy—a philosophy that justified the extension of judicial review into these new areas, and that did so in a way that was, at the minimum, persuasive to a substantial body of other elite social actors. Eventually it did, but the process was neither quick nor easy, and until it was complete, Court intervention on behalf of civil liberties was, despite the justices’ convictions, the exception rather than the rule. The following chapters relate this part of the story. First, I discuss the traditional rationale for judicial review, up to its unraveling in the 1930s. Then I examine the Court’s struggle in the immediate postwar years to formulate a new rationale. Finally, I show how another ideal to emerge from the encounter with totalitarianism—the ideal that the state not impose values— was transformed by the Court into just such a new rationale for judicial review, and I show how it pushed civil liberties into a more radical mode.

13 The Rise and Fall of Judicial Review before World War II

The U.S. Supreme Court is the most powerful court known to history, with powers unparalleled by, even unthinkable for, the judiciary of any other country, even among constitutional democracies. It sets constitutional boundaries for legislation and regulation, constructs statutes, elaborates the common law, and frames proper procedure for public and private bodies alike, even procedures for democratic elections.1 All this has an impact, direct and indirect, on where and how decisions of public import are made, on the distribution of sundry goods and opportunities, and on people’s values themselves. Of course, it is appropriate to note, as did Robert McCloskey in his classic study, that “in truth the Supreme Court has seldom, if ever, flatly and for very long resisted a really unmistakable wave of public sentiment.”2 But public sentiment is only on rare occasions so univocal and so well organized and articulated, leaving the Court considerable leeway to trim government policy in the direction it wishes. Indeed, this was the main thrust of McCloskey’s work: that the Court is “an agency in the American governing process, an agency with a mind and a will and an influence of its own.”3 Yet the authority of the U.S. Supreme Court poses a familiar puzzle: how could a nation founded on the principle of popular sovereignty prove hospitable to such an ostensibly countermajoritarian institution as the Supreme Court? The Framers’ decision to protect federal and Supreme Court judges from popular recall secured relative independence for the judiciary from the pressures of day-to-day politics.4 But this also left its authority precarious. It is not only that the judiciary, controlling neither sword nor purse, lacks the means of the other branches of government to enforce its will, and must therefore rely on its legitimacy alone. Even more, precisely because the federal judiciary is insulated from popular recall, it also lacks the leading source of legitimacy in a democratic political culture— 252

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the legitimacy conferred by popular support at the ballot box. Indeed, the Supreme Court throws its authority against the ballot box almost every time it exercises its most distinctive, most political function, reviewing legislation for constitutionality. Its authority thus cannot come from the popularity of the substance of its decisions, since in thwarting the legislature (or the executive, in cases of agency action), it is safe to assume that it frequently thwarts prevailing popular sentiment as well. Its legitimacy, then, must come from a general belief in the rightness of the role played by the Court in the overall governmental process. In other words, its legitimacy comes from public subscription to a vision (or sundry overlapping visions) of moral and political order in which an institution such as the Court has a rightful place. Mark Silverstein has noted the extra dimension this adds to the vocation of the judge in the United States. Lacking the legitimacy conferred by popular election, Judges must continually strive to justify, to themselves and to the populace, the exercise of judicial authority. The result is that judges have become our political philosophers, not simply because of the complexity of the issues they are called on to decide but also because of their continual need to reexamine and rearticulate core principles of American government as a prerequisite to their authority.5 Judges, out of concern for their own institutional legitimacy, become primary promulgators of legitimating political philosophies. But it is a point of crucial importance to the present argument to recognize that these philosophies would have no public purchase were judges to weave them out of whole cloth. Judicial political philosophy must connect with broadly shared assumptions about proper moral, social, and political order. In consequence, judicial authority—both its depth and breadth—is, of all forms of public authority, the one most dependent on the content of the prevailing “public philosophy,” and the one most sensitive to changes in it.

The Original Ground of the Court’s Authority What was the prevailing public philosophy under which the authority of the Supreme Court grew up? Many have found the answer in Americans’ belief in the notion of “higher law.”6 But this cannot be the whole answer. The notion that rulers are subject to a higher law is a commonplace of European civilization—and one might add, a commonplace of all those

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“Axial” civilizations (ancient Greece and Rome, Persia, Israel, India, China) that developed cosmologies distinguishing a sacred-transcendent order from a mundane-terrestrial order.7 The originality of the American variant is that the limits imposed by higher law were institutionalized and made legally enforceable. The roots of this practice are found in the social covenants of the Puritan colonies. These documents, formally assented to by all adult members of a colony, specified the organization and ends of colony government, and also codified the God-willed “liberties of the people.”8 They were the world’s first written constitutions, with the world’s first bills of rights. But by themselves, these social covenants were insufficient to ground the practice of judicial review. A magistrate might be cashiered by the Puritan legislative body for violating the covenant, but there was no court with the authority to strike down the laws of the legislature itself. An evolution had to occur in the concept of sovereignty before one could emerge. The Puritans attributed sovereignty to God; he was the legislator they sought to follow. As a result, the Puritans had an underdeveloped concept of human law-making. Their “legislature” was conceived as fundamentally a “law-finding” body, as suggested by its name, the General Court. Because the General Court was itself tasked with finding the fundamental law, it made no sense to have its findings reviewed by another court with the identical task. It no more cleared the path to judicial review to assign sovereignty to the legislature, as the American colonies did in the wake of the War of Independence. Under the influence of radical English Whig thought— running from Milton and Locke to Richard Price and James Burgh— Americans credited Parliament with protecting the liberty of the people against the encroachments of the king and the king’s courts. Accordingly, in an effort to protect their own hard-won liberty, framers of the new state constitutions subordinated their executives and judiciaries to their legislatures. In the usual arrangement, the legislature annually elected the executive and appointed all state officials. With respect to judges, the legislature appointed them, controlled their salaries, and could remove them from office by simple enactment—not a recipe for judicial independence.9 So long as the legislature was equated with “the people,” the judiciary appeared as a branch of the executive, in need of restraining. But during the 1780s, the legislatures proved that they could be as arbitrary and dangerous as executives, confiscating property and interfering with the courts.10 As a result, some Americans—especially the propertied elites—began to view

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the legislature as just another governmental power in need of restraining. In this new atmosphere, a number of state high courts began, with due circumspection, to invoke their state constitution as a law separate from and, because it derived directly from the people, more fundamental than ordinary statutory law, and to refuse to apply the latter when it conflicted with the former. The people were sovereign, not the legislature, and judges were as much their agents as were elected representatives. On the back of these developments, Hamilton could argue in The Federalist that judicial review does not “by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges . . . ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”11 The way was now clear for the articulation of the judiciary as a separate branch of government (both at the state and federal level), and for the subsequent development of judicial review over the course of the nineteenth-century. In sum, the notion of higher law by itself never produced more than the radical notion that, in extremis, the people reserve a right of revolution—Locke’s “appeal to heaven”—against an unjust legislature. It took the construct of a sovereign people, standing apart from and prior to the legislature and expressing its will in a written constitution, to enable the development of the judiciary as an independent governmental power, capable of setting aside ordinary legislation. Although it is true that the dogma of popular sovereignty allowed the Federalists to augment the authority of the judiciary, two points bear emphasis. First, the Court was granted the remarkable power of rendering legislation a nullity only on the assumption that the Court could and would abjure all discretion of its own and strictly uphold the will of the people as laid down in the Constitution. Judicial “legislation” was anathema. The judge was to find the law, not make it. Beyond this, he was to be a “mere machine.” Second, the notion of higher law did not become a third wheel, even after written constitutions assumed the role of fundamental law. Judicial review is predicated on the existence of constitutional guidelines as to what government ought and ought not do. Some of these guidelines are fully articulated within the Constitution itself (for example, “all duties, imposts, and excises shall be uniform throughout the United States”). But others invoke standards external to the text. The rule that no person shall

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be “deprived of life, liberty, or property, without due process of law,” is one famous example, for nowhere does the Constitution specify what qualifies as “due process.” Another example is the notion that there are “rights . . . retained by the people” beyond those enumerated in the Bill of Rights. In one historically important interpretation, the notion of “retained rights” bespeaks an original condition of comprehensive “natural rights,” only some of which were relinquished to the government when people entered the “artificial” condition of civil society. (This entire social contractarian framework may be contrasted with the theory prevalent in imperial Rome and early modern Europe in which the emperor or king is the sovereign and the rights of subjects take the form of privileges and immunities, carved out from the sovereign’s overarching imperium.) And talk of “natural rights” is, of course, only intelligible against a backdrop of higher law assumptions.

From Early Constitutionalism to Lochner Given these assumptions, it is no coincidence that, when the Supreme Court at the close of the nineteenth century construed “due process” to mean “conforming to common law rules of property and contract,” Justice Stephen J. Field would insist that the Court was simply defending “inalienable rights, rights which are the gift of the Creator”—like the Godgiven right of bread companies to work bakers seventy hours a week (Lochner v. New York [1905]), or for seven-year-old children to snip beans at a cannery.12 The notion of higher law justified the demarcation and protection of this “natural realm,” the realm of labor contracts—never mind that the actual content of this realm derived from something as baroque as the common law. It has long been supposed, on the basis of a quip from Oliver Wendell Holmes, that the opposition of the Court to progressive legislation was motivated by a laissez-faire economic ideology that sanctified freedom of contract. Recent scholarship suggests it was instead motivated by Jacksonian opposition to “unequal legislation,” and that the roots of this opposition run all the way back to the opposition of the Framers of the Constitution to debt relief, paper currency, and other “class legislation” that helped some (namely, the debtors) at the expense of others (the creditors). The assumption, etched into the legal profession by William Blackstone, was that common law rules of property and contract were natural and neutral rules for the conduct of economic life—“gifts of the Creator,” in Field’s

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phrase. It was acceptable to place restrictions on the use of property and the rights of contract if these clearly advanced the public welfare. In the classic refrain, legislation that protected the “health, safety, and morals” of the people was unobjectionable—part of the proper end of government. But “partial legislation,” that is, legislation that tended to the benefit of one class of citizens at the expense of another, was tyrannical. It reflected the spirit of faction, not the public good. Examples included minimum-wage and maximum-hour laws, mandated bargaining with unions, and workers’ compensation. These were held to benefit employees at the expense of employers and were consistently struck down in favor of the “neutral” principles of “freedom of contract” and “fault-based liability.”13

Legal Realist Critique Progressives countered that the advent of the factory system had so changed the circumstances of employment that the old rules were now oppressive. Propertyless wage-earners had nowhere near the bargaining power of their employers and needed legislative protection. A group of self-styled “legal realists” sought to clear the way for such legislation by launching a critique of traditional constitutionalism. First, they sought to introduce flexibility into the practice of constitutional interpretation by critiquing the image of the judge as a mere machine. This took the form of a critique of “formalism”— the notion, which the realists associated with Lochner-style legal reasoning, that rule-based systems produce outcomes in a mechanical, objective manner.14 Discretion, the realists argued, is often present—in the view of the more extreme realists, including Jerome Frank, Herman Oliphant, Hessel Yntema, and Felix Cohen, it is always present—in the selection and interpretation of a legal rule to be applied to a given case; in closing this gap, recourse to extra legal standards—some interest or policy persuasion—must be made, even if sometimes unconsciously. From whence come these substantive considerations? The legal realists, plying a nascent sociological jurisprudence, argued that they come from the social context of the time. In Holmes’s famous pronouncement, “the life of the law has not been logic: it has been experience.”15 The extreme realists took this in a highly subjectivist direction. Impressed by the new psychology (Freudianism, behaviorism, and abnormal psychology) and by recent insights into the wholly abstract character of formal logic, they placed a premium on the personal and discounted the logical. Judges, Hessel E. Yntema argued, arrive at their decisions through “an emotive experience

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in which principles and logic play a secondary part. The function of juristic logic and the principles which it employs seems to be . . . to describe the event which has already transpired.”16 Because these emotional reactions were born of idiosyncratic personal experiences, Frank elaborated, the decision one received depended very much on the judge who heard the case—so much so that the liberal ideal of living under “established law” had to be judged “fantastic.”17 “Until a Court has passed on these facts, no law on the subject is yet in existence.”18 Yntema concurred: “The ideal of a government of laws and not of men is a dream.”19 As for the Lochner Court, the problem, as the realists saw it, was that the substantive commitments it leaned on to close the gap of legal indeterminacy reeked of political and economic conservatism. The Court’s invocation of the “rule of law” was just a cover for the advancement of the judges’ reactionary politics. The fact of judicial discretion in legal interpretation also held out hope, however. If judges were better informed about the new economic landscape, more progressive decisions might be forthcoming. The second part of their challenge, which garnered more immediate results, was to question the notion of higher law, and, by implication, the immunity of the law from political reform. The younger realists especially, having absorbed the currents of modernist thought (nominalism, positivism, behaviorism, and emotivism), followed the skeptical Holmes in rejecting moral “ultimates” and “absolutes” as scientifically unverifiable. “Transcendental Nonsense,” Felix Cohen called it.20 Ostensibly, the realists were decoupling the study of law from normative frameworks and concerns, but in actual fact, the intent behind this plunge into legal positivism was highly normative. The point was to demystify the common law—a project first launched by Holmes.21 The common law is no expression of some putative higher law. In countenancing some rights and discountenancing others, common law is itself but a mode of social regulation backed up by government force, and is not in this sense any different, or more sacrosanct, than statutory law. Robert Hale was the nonpareil practitioner of such deflationary, denaturalizing analysis of the common law, especially in the area of economic rights. As Duncan Kennedy notes, “Hale opened up a whole field of analysis, showing that the most apparently unproblematic background rules of property, contract, and tort were ‘really’ sophisticated regulatory interventions through which the state conditioned the outcomes of economic conflict.”22 Governments define rights, including property rights; therefore these rights can’t be taken as natural, neutral, or even settled. All law is a creature of the state and therefore subject to legislative revision.23

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The legal realist challenge has left a deep impress on subsequent constitutional debate. Most significantly, each of its parts serves to undermine the distinction between law and politics: the critique of higher law, because it denies what the mainstream Western legal tradition had always asserted, that law is an authority distinct from, and higher than, politics;24 the critique of formalism, because it suggests that the judicial application of law in many cases involves a substantive, potentially “political,” dimension. In blurring the distinction between law and politics (and also that between public and private, as it was the law that traditionally protected the private from politics), the legal realists left the one open to potential colonization by the other.

Legal Realism in Progressive Politics Progressives, as the innovators of this line of constitutional argument, were the first to cross the frontiers it opened. In unison with the legal realists, they accused the judges of the Lochner Court of enshrining their own political and economic biases in the law. Contra the decisions of the Lochner Court, there is (for instance) nothing inherent to workplace accidents that places responsibility for them on the worker and not the employer. Was the employee irresponsible, or was the employer maintaining an unsafe work environment? The determination of who bears legal responsibility for an accident, and thus of who must bear its costs, is an artifact of the way in which government defines economic rights. Progressives of populist bent believed it was for legislatures to determine these rights, and if need be, redetermine them. Others, impressed by the increasing complexity of economic and social relations, believed that experts should be allowed to determine which rights regimes would best serve the public interest. Such experts would most likely find a home in executive agencies such as the Interstate Commerce Commission. Some even thought judges themselves might be considered experts and might legitimately engage in “social engineering.” All agreed that the judiciary had no business standing in the way of these revisions. Two other widely shared planks rounded out the progressive legal platform: eliminate obstacles to national regulation of the economy based on the principle of federalism, and eliminate those based on the principle that Congress may not delegate its functions to executive agencies. The victory of the New Deal forces signaled the ascendance of the realist outlook and resulted in the institutionalization of each of these progressive planks. The common law was rejected as the baseline for determining

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economic rights, freeing legislatures to redetermine them.25 The delegation of legislative functions to executive agencies was accepted, through simple neglect of Schechter. And federalism obstacles to national legislation and agency action were removed, through an extremely permissive interpretation of the commerce clause.26 Also, creeping restrictions on the federal taxing power, of the sort that struck down the original AAA and threatened Social Security, were removed.27 To highlight the novelty of the new governmental dispensation, Cass Sunstein and others have proffered, and ably elaborated, the notion of a distinct “New Deal constitutionalism.”28 But this moniker should not obscure the extent to which the New Deal downgraded the status of the written Constitution, and thus of the judiciary, in the new constitutional regime. Tellingly, a Roosevelt address of 1937 was titled “The Constitution of the United States Was a Layman’s Document, Not a Lawyer’s Contract.”29 The Supreme Court was the last national institution to succumb to the New Deal tide, but it, too, finally slid into line, after a landslide election and the threat of Court-packing. The progressive members of the Court effected a shift of power away from the judiciary and toward the legislature and executive by establishing a presumption of legislative constitutionality and a presumption of the constitutionality of agency action. Government could now reach its hand into the market to adjust the rules by which it operated, and the way was open for the economic regulations associated with Roosevelt’s New Deal. The upshot of all of this for the authority of the Supreme Court as a constitutional actor should have been straightforward. It is not that the Court should have slipped into desuetude. It would have remained quite powerful, with duties both as the highest regular court in the land, and as the arena for adjudication of disputes between states, between a state and the federal government, and suchlike. But the force of legal realist arguments, sanctioned by the New Deal, could have been expected to sharply curtail the practice of judicial review. Obviously, this is not how the rest of the story goes. As we have seen, a new chapter in constitutional argument opened in the wake of the encounter with totalitarianism, eventuating in a period of remarkable judicial activism associated with the Warren Court. If the Court has continued to disavow authority to intervene in commercial regulation, tax policy, and foreign affairs,30 it has, as compensation, arrogated to itself authority to protect personal and civil rights (its “civil liberties revolution” and “civil rights revolution”), and even more remarkably, if less noted, authority to

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determine which social and governmental arena is appropriate for what kinds of decisions, and to determine when proper procedure has been followed within these arenas (its “due process revolution”). How has the Court justified this? How has it justified its review authority, and arguably augmented it, in the postwar era, despite the explicit rejection by mainstream legal thought, and by the intellectual classes more generally, of the very idea of higher law? Not easily. After an unsteady start, the Court was eventually able to stabilize its new rights jurisprudence around another legacy of the totalitarian encounter—the ideal of “state neutrality”—but not before this ideal exacted a price, destabilizing governmental authority in general and radicalizing the rights the Court was trying to protect.

14 The Neutrality Ideal Comes to Court

On the odd occasion when prewar jurists spoke of the Constitution as a “neutral” framework, they meant “class neutral,” neutral among contending parties in the private economy. They did not mean “morally neutral” or “neutral with respect to theories of the good life.” Indeed, regulation protecting “morals” was time and again, on through the 1930s, expressly noted by jurists as falling within the legitimate “police powers” of the states. This police-powers doctrine has never been fully undermined and travels today under the rubric of upholding “community standards.” But it has been significantly limited by the ascendance of the ideal of government neutrality in the moral sense. It is not widely appreciated just how recent has been the rise of the ideal of morally neutral government. As Michael Sandel points out, it was not until the late 1930s that it found its way into constitutional discourse, and not until the 1940s that it came into its own. For instance, one might suspect religion to have long been an object of governmental neutrality—after all, European liberalism emerged from the sixteenth-century wars of religion, and liberal thought has usually theorized religion as the paradigmatic source of controversial conceptions of the good. But neither toleration, nor freedom of conscience, nor disestablishment, nor any other traditional liberal stance toward religion implies neutrality. For all its familiarity, the requirement that government be neutral on matters of religion is not a long-standing principle of constitutional law, but a development of the last fifty years. Not until 1947 did the Supreme Court hold that government must be neutral toward religion. The American tradition of religious liberty goes back further, of course. The Constitution forbids religious tests for federal office (Article VI), and the first words of the first Amendment declare that “Congress shall 262

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make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But the Bill of Rights did not apply to the states, and at the time of its adoption, six of the thirteen states maintained religious establishments. Far from prohibiting these arrangements, the First Amendment was enacted in part to protect state religious establishments from federal interference.1 Religion was the first area to be regularly treated by the Court under the ideal of governmental neutrality, but the ideal was quickly extended to other areas, where, as with religion, it gave old doctrines—like free speech and the right to privacy—an entirely new, generally much more libertarian meaning.2 Despite his careful documentation of the ascendance of the neutrality ideal in the postwar period, Sandel says little about the ideal’s genesis. Rather, he treats it as a transplant from an older, and alien, European liberal tradition—a transplant that he sees as choking off a native, civic republican tradition.3 Others, because they miss this caesura in American public philosophy in the first place, are all the more apt to treat today’s liberal ideals as if they were the logical culmination of ideas first broached in the seventeenth century. I very much doubt that this tale of theoretical continuity can be sustained. For the careful reader, the overwhelming impression left by the juxtaposition of, say, the liberal theories of Rawls and Dworkin with the classical liberal theories of Locke, Hume, Smith, Kant, and Mill, is of theoretical discontinuity, especially regarding moral psychology, the distinction between liberty and license, and the nature of the social bond. Translating the neutrality ideal back into classical terms helps highlight the difference.

Contrasting Classical Liberalism and Neutralist Liberalism Another way of saying that the state should be neutral with respect to visions of the good is to say that power and opinion (at least, opinion about “values”) ought to be kept separate. Indeed, ever since “totalitarianism” emerged as the defining Other of liberal democracy, the debarment of power’s sway over opinion has appeared as the very essence of a free society. But is not the separation of power and opinion a classical liberal doctrine, too? Yes, it is, but not all versions of this separation are equivalent. When, for instance, John Locke laid down his famous dictum that “the business of Laws is not to provide for the Truth of Opinions, but for

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the Safety and Security of the Commonwealth, and of every particular mans [sic] Goods and Person,”4 he did not have just any opinions in mind, but specifically what he called “Speculative Opinions,” such as “Articles of Faith . . . which are required only to be believed” and “terminate simply in the Understanding.” But with regard to “practical” opinions, including practical articles of religion, which “influence the Will and Manners,” power cannot be indifferent.5 Locke separates power from opinion with the purpose—widely shared after one hundred years of religious warfare—of theorizing a nonconfessional basis for public order. Far from removing morals from power’s purview, however, this gambit elevates the political significance of morality, replacing the notion of a common creed with that of a common morality as the foundation of public order.6 Though articles of faith be controversial, the reasoning went, the laws of morality are not. The good news preached by mainline classical liberal thinkers was that these laws formed a sufficient basis for public order; at the same time, they were believed a necessary basis. Those who violate them would need to be restrained; what is more, opinions that might lead to their violation would need to be restricted. Needless to say, this is not the kind of halfway separation of power from opinion that would satisfy a liberal of the post-World War II period. In the wake of World War II, the classical distinction between power and opinion reemerged in the form of a “state neutrality” ideal. Behind the formulation of this ideal lay the assimilation of all “value systems” to the category of “articles of faith,” or “opinion.” And these opinions now gain the protection traditionally accorded to “matters of conscience,” earmarked as among those things with which power dare not meddle. To impose values is authoritarian (totalitarian, fascist); legitimate authority, by contrast, is neutral with respect to values. It provides a neutral, fair framework within which individuals are to pursue their own notions of the good. It is the rise of this more radical, postwar version of liberalism that has yet to receive adequate explanation.

The Advent of Neutralism, Redux Fortunately, we already have our answer, in our account from Part III of the great Methodenstreit that took place in the American academy, in which each side—the scientific naturalists and the ethical absolutists—tried to pin the onus of totalitarianism on the other. Were the scientific naturalists the

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handmaids of totalitarianism, because their claim that judgments of right and wrong cannot be rationally vindicated leaves right at the mercy of might? Or were the rational absolutists the handmaids of totalitarianism, because their belief in absolute standards licenses a caretaker elite? It was the latter view, the polemical position of the naturalists and ethical modernists, that became academic orthodoxy, and it had two major consequences for subsequent academic thought about governance. First, quite paradoxically, it moralized the skeptical view on values, by associating its opposite—ethical absolutism—with totalitarianism. As Gabriel Almond put it in 1954, “Once involved in the struggle for political power, the ethical absolutist is confronted by the most serious temptation,” the temptation to impose his philosophy by totalitarian means.7 At the same time, it constitutionalized this skepticism in the conviction that, in a properly constituted liberal constitutional order, the major constitutional arenas— politics, economics, and law—neither impose, nor presuppose, agreement on fundamental values. To quote Friedrich again, “Since certainly dictatorship of the modern totalitarian variety, and perhaps a good many other forms of government require such agreement on fundamentals, constitutional democracy is possibly the only form of government which does not require such agreement.”8

Inroads of the Neutrality Ideal Again, this was not the view held by the majority of Americans. It was the view held by the preponderance of American social scientists, however, and it soon entered into circulation among elites in other social arenas— politics, economics, law—in part because of the increase in direct relations between the universities and America’s major social institutions as an enduring legacy of the war effort, and in part because future elites now passed through these very academic institutions as part of their normal path of credentialing.9 Neutrality—or one of its kindred concepts—thus became a prominent, and sometimes a leading, currency of legitimacy in each of these social arenas, with practical consequences for governance. We have already seen this with regard to interest group politics. The state has no policy of its own to promote, but sets its course in response to the pushing and pulling of the organized groups of society. Within economics, the “free market” was also often characterized as neutral, since all exchanges are voluntary. But in no social arena was the impact of the neutrality ideal more direct and more dramatic than in the law, and for three reasons.

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First, no group of intellectuals ultimately embraced the neutrality ideal more firmly than did the realist legal scholars. This was not unrelated to the fact that no group of scholars had been more viciously attacked during the debate over totalitarianism. “The problem,” Gary Peller notes, “was that the realists . . . impugned the law/politics distinction . . . just at the moment when the rule of law was being presented as the key difference between democratic and totalitarian societies.”10 Even former allies such as Pound turned on them, calling realism a “give-it-up philosophy” that, in promoting skepticism about the legal process, “leads logically to absolutism.”11 The heat was so intense that a few melted. Frank ultimately went over to a Thomist natural law position. Karl N. Llewellyn, a leading figure in this group, did not go this far. But he wrote that he was “ready to do open penance” for any suggestion he might have made that the law be studied apart from its ethical purpose.12 But most, while professing they never meant to deny the importance of moral ideals in the law, made no changes to their methodological creed—a creed that, because it seemed to leave no possibility for the rational justification of moral ideals, is what had sparked the conflagration in the first place. Thus, no group of naturalists was more relieved than the realists to be able to run with Dewey’s equation of moral-philosophical absolutism and political absolutism. Nor was any group better primed for it. After all, legal realists had been denouncing “judicial absolutism” for years and were all too familiar with the role that natural law doctrine had played in justifying it.13 The absolutism equation led them to reinterpret the problem of Lochner—from that of importing the wrong values into the Constitution, to that of importing values, period. Lochner was a case of “substantive” due process, and therefore illegitimate. Lochner joined Hitler as an outstanding reason to keep substantive moral and political values out of the legal process altogether. Second, no group of academics had closer ties to a seat of national power. The path from the university to the Supreme Court was an extremely short one. It might run by way of direct appointment from a law faculty, as in the case of Frankfurter, or simply by way of personal relations, law journals, and law clerks. The Court thus had (and still has) the unusual distinction of being an outpost of academic intellectuality among the national powers. This means that an intellectual current that surges through the academy—as did the association of liberal democracy with the nonimposition of values—is bound to bleed into the Court. Finally, the impact of the neutrality ideal was the most direct and dramatic in the law because no other pervading social “power” was as centrally

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organized and oriented. By way of contrast, officeholders in state and local government could largely ignore the new understanding of democracy and freedom circulating among national political elites, since their authority did not derive from the center. This is even more true of economic actors. But the U.S. legal system was intentionally designed by the Framers to be the unifying principle in the American federation. The supremacy clause gave the Supreme Court (rather than the national legislature, as Madison had originally wanted) the authority to strike down state laws as unconstitutional when in conflict with federal prerogatives; this was the provision that was to preserve the union from the centrifugal forces that had torn apart confederations past.14 Meanwhile, the hierarchy of appellate jurisdictions, terminating in the Supreme Court, would maintain uniformity in the legal system. Where the Supreme Court went, so would go the rest of the legal system. Given this organization, a change in the mindset of the Supreme Court justices—such as their conversion to the neutrality ideal—quickly reverberates throughout the legal system. Of course, not all cases fall under federal jurisdiction; many terminate in the state courts, but even here the Supreme Court sets a powerful example.

Neutrality’s Radicalization of Legal Realism To reiterate, my argument is not that the rise of the neutrality ideal directly augmented the authority of the Court. Indeed, it is my belief that the neutrality ideal made the exercise of authority in all its forms more vulnerable to delegitimation, for the straightforward reason that neutrality is such a difficult ideal to satisfy. My argument instead is that the Court, for reasons I will explore, has been more successful in outwardly satisfying this ideal than other constitutional actors, and therefore has been able to accumulate a relative share of authority in our constitutional system that is much greater than anyone in the early postwar period would have predicted, disposing of a broad range of questions that other constitutional democracies leave to legislatures and executive officers. So the preliminary step is to appreciate just how difficult it became to justify judicial review—indeed, to justify even normal court adjudication—after the rise of the neutrality ideal. After this, we will be in a better position to understand the form the Court’s authority has taken. Legal realism had already made things difficult for judicial review. Indeed, some constitutional scholars have gone so far as to suggest that the legacy of legal realism alone makes it impossible to formulate a persuasive constitutional jurisprudence.15 If true, we would be back with the old notion of

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imperium, albeit with a democratic face: the federal government would in the last analysis be limited only by what a (rough) majority of the voting public would bear. The fact that, in the area of economic relations, the Court has indeed so thoroughly abandoned the field that something very much like an imperium reigns there, only adds to the impression that, when taken to heart, this is exactly the lesson to be drawn from realism. I believe this overstates the case, however. It is rather the addition of postwar neutralism to legal realism that makes it so difficult to get constitutional argument off the ground. Did realism by itself delegitimate judicial review? As we have seen, legal realists made two main critiques. First, they critiqued the notion that the common law is a natural, class neutral body of rules. This opened the economic field for federal regulation because it exploded the Court’s traditional review standard in this area. The encounter with totalitarianism, however, gave the Court a new agenda, focusing on civil liberties and the Bill of Rights, and here the critique of the common law was less relevant. The real question, then, concerns the other main realist critique, the critique of formalism. Realists made compelling arguments that, in a significant portion of cases, legal decisions cannot be derived deductively from legal rules—consciously or unconsciously, a “policy persuasion” comes into play and closes the gap. If anything, this was understood to be even more true of constitutional interpretation than of adjudication involving common law rules and statutory rules. As put by Frankfurter and Landis in 1928: Constitutional interpretation is most frequently invoked by the broad and undefined clauses of the Constitution . . . [T]he words . . . are so unrestrained by their intrinsic meaning, or by their history, or by tradition, or by prior decisions, that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life . . . [T]he controlling conceptions of the Justices are [what Pound has called] their “idealized political picture” of the existing social order.16 Does this discredit judicial review, revealing it to be inherently ideological? Is law nothing more than politics by other means? Not for mainstream realists. The realists were progressives, not populists or “crits.” They by and large held that where deduction runs out, objective social scientific analysis ought to step in. The fuss realists were making was to get judges to trade their unconscious and uncritical policy persuasions for conscious and scientific ones, which most realists were convinced would move decisions in

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a progressive direction. They wanted to add scientific brushstrokes to the judges’ “idealized political pictures.” From a realist perspective, then, judges are welcome to look for extraconstitutional standards for interpreting constitutional clauses, such as the common law once provided for the due process standard, but now with the proviso that these standards not premise a pregovernmental, “natural” realm of social relations, or other such objectionable natural law notion. But this is no tall order. Judges might, for example, appeal instead to a substantive political philosophy, either about rights, or about what government is supposed to do and not do. And we are reminded of frankly how thin a political philosophy can be and still be serviceable when we recall that in the period stretching from the Civil War through World War II, the (very low) standard for the due process protections of state criminal defendants was that they not be treated in ways inconsistent with “the very idea of free government”17 or “the very essence of a scheme of ordered liberty,”18 whatever that is. Therefore, provided that some substantive standard be available (such as might be provided by tradition, moral philosophy, political philosophy, policy analysis, or suchlike), and provided that this standard be widely accepted as valid (as “objectively” the case), then constitutional review could still get traction.19 There is no better proof of this than the fact that some legal realists were moving in precisely this direction. As just noted, realists usually appealed to social scientific analysis as their way of preserving the ideal of impartial adjudication in the face of their own critique of formalism. Frankfurter and Landis, for example, argued that closer attention to “fact” would be sufficient to resolve the hard cases, and they concluded their book with proposals for procedural reforms that would do more to bring relevant socioeconomic facts before the Court. But there were more sophisticated understandings of what was required: facts had to be wrought up into social theory. As Duncan Kennedy notes: The most common realist solution, influenced by the German and French free-law theorists, was the notion of society as an evolving organism with needs and functions. The judicial function was to evolve the rules so as to fulfill the needs. Writers like Cardozo describe this function as the basis of a method alternative to deduction. The judge who did it right was not a partisan, though he had to acknowledge that “subjective” factors condition his understanding of progress. The method was to be used not just to answer when deduction “ran out”

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but also to critique unquestionably deductively correct results, and sometimes to reject them in the name of evolution.20 Such a method could have been adapted to justify judicial review of legislation. A judge would set aside legislation not because it encroached on a “natural” sphere, but because it interfered with (scientifically identified) evolved social needs. A theory of “evolved right” would have replaced that of “natural right.” Courts would be “impartial” when they devised rules to protect the progressed needs of today’s social conditions and substituted them for common law rules and legislative statutes protecting the retrograde needs of yesteryear’s social conditions. So to repeat, provided that some substantive standard be available, and provided that this standard be widely accepted as valid, then constitutional review could still get traction. But these are precisely the kind of standards that the postwar neutrality ideal exiles from the legal kingdom. Indeed, after the encounter with Nazi social theory, Cardozo’s organicism was the very image of an objectionable conception of the good. Using it, or any other social ideal, to strike down legislation would be an act of intolerable legal absolutism. This meant aspiring to neutrality in a new, deep, difficult-to-grasp sense—not just the traditional rejection of political and class partisanship, not just the realist rejection of substantive standards grounded in “natural right,” but the rejection of any substantive standard on the judge’s part in rendering a decision. In light of this, it was unclear how adjudication could legitimately go forward, let alone judicial review. Here was the postwar legal dilemma: the critique of formalism meant that hard cases could be settled only through appeal to policy considerations; the ideal of neutrality meant that these policy considerations could not be informed by substantive social ideals. But how could one derive a policy position independent of social ideals?

The Search for a Constitutional Jurisprudence The difficulties this posed for the Court were enormous, as is evidenced by the decisions of the immediate postwar Court. Roosevelt had appointed justices who would uphold New Deal legislation, and this meant men who accepted the realist critique of natural law and common law. At the same time, however, the rise of totalitarianism had reasserted constitutional rights and the rule of law as central features of the American self-image. In other words, having travelled so far toward erasing the distinction between

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law and politics, the Court was now expected to bring it back in some form. But the neutrality ideal meant that it could not do this through Cordozostyle appeals to substantive, “scientific” conceptions of the good. The Court had to be deeply neutral. The easiest thing for the Court to do from a juristic point of view was to do nothing. Indeed, judicial restraint was the Court’s watchword once the Roosevelt appointees gained the upper hand. This was the expectable reflex of their progressive suspicions of the power of judicial review, and of their approval of New Deal legislation. But this wasn’t always the easiest thing to do from a moral point of view, especially when it came to Southern civil liberties cases. Refusal to act—and they often did refuse—could turn the justices’ stomachs and bring down showers of invective from the liberal press. The pattern that emerged, therefore, was one of broad judicial deference punctuated by interventions in extreme cases, on unstable grounds. It is a common observation that the Court in the immediate postwar period failed to formulate consistent, reasoned justifications for its review decisions. But this certainly wasn’t owing to its lack of intellectual firepower—most scholars consider the Roosevelt appointees among the most superlative group of minds ever gathered on the Court. It might be suggested instead that there was a grave mismatch between the values the judges believed ought to be constitutionally protected and the intellectual resources available to justify this protection.

The “Footnote Four” Theory Under the influence of John Hart Ely’s Democracy and Distrust (1980), constitutional scholars have come to treat Justice Stone’s famous footnote four in the Carolene Products (1938) case as the Rosetta Stone for postwar constitutional development. In this footnote, Stone speculates about the kind of cases that might yet require judicial review now that the Court had given the green light to legislative regulation of the economy. It includes the pregnant suggestion that the Court take up the role of defender of the democratic process, giving “more exacting judicial scrutiny” to legislation that restricts the political process, and that it also take up protecting “discrete and insular minorities,” such as religious or racial minorities, whose circumstances might deny them the protection normally afforded by the political process. This interpretation of the Court’s postwar jurisprudence is quite congenial to my argument that the neutrality ideal had a major impact on the Court’s activity, for as Sandel notes:

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Stone’s suggestion offered a basis for rights consistent with the idea of the Constitution as neutral among ends. While arguments would continue about which rights this conception required, the arguments would not be about the intrinsic value of the interest the rights protect, but rather about the constraints appropriate to an open political process, free of prejudice, within which people can choose their values for themselves.21 Even more congenial to my argument, Stone’s letters suggest he arrived at this set of concerns out of distress at “the increasing racial and religious intolerance which seems to bedevil the world,” with the spread of fascism as the most salient example.22 Yet despite its good fit with the main lines of the postwar Court, especially in the Warren era, Footnote Four is more accurately characterized as an evanescent search flare than as a guiding star. In addition to the minor problem that Footnote Four leaves a couple of the Court’s important lines of decisions unaccounted for (such as its privacy cases and its early communism cases), the major problem is that the Court made such little express use of it. As Powe notes, “only once in Warren’s sixteen years did an opinion of the Court cite Footnote Four,” and it was but a bland reference at that. “If Footnote Four was the Court’s Rosetta Stone, it was seldom on public display.”23 In light of this, it may be suggested that the Footnote Four theory is an example of a recent scholarly construction coming to be confused with actual history. What is significant about the Stone footnote for our purposes is that it evidences the Court’s emerging antitotalitarian priorities, and furthermore that it defends these new priorities by appealing to one of the emerging neutralist (antitotalitarian) ideals. Indeed, if I am right that modern democratic theory, and not classical liberal theory per se, forms the true pedigree of the neutrality ideal, then it is only to be expected that the first traces of the neutrality ideal in constitutional discourse percolate about the new image of democracy as an open process independent of any particular substantive commitments. But for intimations of the jurisprudential philosophy, or philosophies, that carried the Court on its fitful postwar course, we have to turn elsewhere.

The Clashing Constitutionalism of Frankfurter and Black The most sustained attempts to formulate a consistent constitutional jurisprudence in the immediate postwar years were made by Justices Black and Frankfurter, and the skirmishes between them bring the difficulties into

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plain view. Each grasped a different horn of the dilemma—Frankfurter grasping the realist horn, Black grasping the neutralist—and each was gored by the other horn in doing so. Frankfurter was a committed realist. The rise of totalitarianism, however, convinced him of the importance of the rule of law, and this, combined with his own appointment to the Court, gave him new impetus to justify the practice of judicial review. His efforts took a typically realistprogressive direction. Frankfurter’s early realism was fired by the hope that exposing the element of freedom in judicial decision making would encourage judges to look to scientifically trained experts for guidance. By the 1930s, even before the debate over totalitarianism began, Frankfurter began to think of the ideal judge as himself an expert, and imagined for him a remarkably elevated role in America’s constitutional democracy—the role of judicial statesman. “In simple truth, the difficulties that government encounters from law do not inhere in the Constitution. They are due to the judges that interpret it. . . . That document has ample resources for imaginative statesmanship, if judges have imagination for statesmanship.”24 The idea, which Frankfurter felt was best exemplified by John Marshall and Holmes, was for judges to shape social change in a way at once consistent with the general principles of the Constitution yet responsive to emergent social needs.25 Preserving judicial flexibility was therefore of central importance in Frankfurter’s constitutional jurisprudence. The problem with this, of course, was how to guard against judicial abuse of this discretion. What prevented this version of “the rule of law” from descending into the rule of judicial will? Here, Frankfurter leaned hard on the progressive image of the disinterested scientific expert, arguing that judges, too, can be trained to the type, through education in American traditions and values and observation of professional boundaries. In a letter to Black, who already by 1943 was becoming uncomfortable with Frankfurter’s notion of “judicial flexibility,” Frankfurter laid out his position in terms that he hoped would allay Black’s fears. I am aware that men who have power can exercise [it—]and too often do—to enforce their own will, to make their will, or if you like their notions of policy, the measure of what is right. But I am also aware of the forces of tradition and the habits of discipline whereby men entrusted with power remain within the limited framework of their professed power. More particularly, the history of this Court emboldens

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me to believe that men need not be supermen to observe the conditions under which judicial review of political authority—that’s what judicial review of legislation really amounts to—is ultimately maintainable in a democratic society. When men who had such background and relation to so-called property interests as did, for instance, Waite, Bradley, Moody, Holmes, Brandeis and Cardozo, showed how scrupulously they did not write their private notions of policy into the Constitution, then I am not prepared to say that . . . judges . . . merely translate their private convictions into decisions and call it the law and the Constitution. I appreciate the frailties of men, but the War is for me meaningless and Hitler becomes the true prophet if there is no such thing as Law different and beyond the individuals who give it expression.26 But Frankfurter’s appeal to the judge as scientific statesman did not wear well after the rise of the neutrality ideal, with its repudiation of judicially imposed substantive standards. The judicial statesman, however constrained by his immersion in tradition and professionalism, must ultimately justify his decision in a written opinion, which leaves him in the position of having to point, with some catchword or phrase, to the complex of considerations that constrained him. The evidence is strong that Frankfurter did often defer to legislatures and agencies even when they undertook actions of which he strongly disapproved, and that he felt justified to intervene only in the most flagrant cases. Nevertheless, the summary words or phrases he used to justify his rulings were bound to be pitched at a high level of abstraction, leaving their content imprecise and creating the impression that the case had been decided with a high degree of subjectivity. Frankfurter struggled with this problem throughout his years on the Court, appealing variously to “those canons of justice of English speaking people,” “the conscience of a free people,” “prevailing standards of fairness,” “standards of decency,” “civilized standards,” and suchlike, against things that “shock the conscience” or (as he was liable to express it privately) “make him puke.”27 These appeals to vague, extra-constitutional, substantive standards were simply too much for Black. In response to one such decision from Frankfurter,28 Black circulated a memo to the Court in which he derided a recent Frankfurter opinion as a rehabilitation of Lochneresque natural law: Mr. Justice Frankfurter has filed a concurring opinion which construes the Due Process Clause as authorizing this Court to invalidate state

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action on the ground of a belief that the state action fails to set “civilized standards.” This seems to me a restoration of the natural law concept whereby the supreme constitutional law becomes this Court’s view of “civilization” at a given moment . . . Due Process, thus construed, seems to me to make the constitution mere surplusage. This Due Process Interpretation permits the Court to reject all of these provisions of the Bill of Rights, and to substitute its own ideas of what legislatures can and cannot do. In the past, this broad judicial power has been used to preserve the economic status quo and to block legislative efforts to cure its existing evils. At the same time the court has only grudgingly read into “civilized standards” the safeguard to individual liberty set out in the Bill of Rights.29 Even when agreeing with Frankfurter on a decision, Black made clear his rejection of Frankfurter’s grounds. A draft of a concurring opinion in the Francis case included the following pungent remark: I think there is ample support for holding that the Fourteenth Amendment was intended to and does prohibit states from legalizing double jeopardy and cruel and unusual punishment to the same extent as the Fifth and Eighth Amendments prohibit federal laws of that kind. But I do not reach that conclusion with reference to a mystical natural law which is above and beyond the Constitution, and which is read into the due process clause so as to authorize us to strike down every state law which we think is “indecent,” “contrary to civilized standards,” or offensive to our notions of “fundamental justice.”30 As these passages suggest, Black’s search for a constitutional jurisprudence capable of vindicating postwar judicial values, yet respectful of postwar strictures on the imposition of values, led him to posit the text of the Constitution, “literally” interpreted, as the neutral ground for judicial review. Of course, reference to constitutional text had always been a part of judicial review, but Black was the first to conceive of it as the beginning and end of constitutionalism. Following this thread of logic, he soon became the first sitting justice to argue that the due process protections of the Fourteenth Amendment were, in scope and degree, no more and no less than the protections expressly written down in the Bill of Rights.31 In effect, Black became the first thorough-going “incorporationist,” applying the Bill of Rights to the states, and furthermore interpreting its protections as “absolutes.” It is actually no surprise to see Black taking such a blatantly formalist

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tack, for although Black was no stranger to the law—he had spent his early years as a small town trial lawyer—the majority of his career had been spent in the Senate, blissfully unaware of legal realism and the tempest it had unleashed in the academy. The realist critique of formalism was not in his bones. Furthermore, it is no surprise to see him lashing out at what he perceived to be an attempt on the part of Frankfurter to justify the imposition of judicially divined substantive standards. Black was a fervent New Dealer and knew very well what mischief the Court had caused with its invocations of natural law. Furthermore, although I know of no specific evidence that Black, in his wide reading of Western classics, ever grappled with the classic works of high modernism, it is clear that he shared its central mood of skepticism about the existence of “absolute truths” or the existence of a “public interest” analytically distinct from what the majority happened to want.32 This put Black into natural sympathy with neutralist conceptions of American democracy. For instance, Black saw wisdom in the First Amendment’s protection of speech not because he thought, as did Mill, that the “marketplace of ideas” would, in the long run, serve up the truth, but because he thought that, in the long run, it would prevent any minority (such as the business class) from oppressing the majority. Frankfurter’s idea that “judicial statesmen,” because of special training, were qualified to determine when speech crossed the line and became an obstacle to social progress, was anathema to Black, for whom the standard of social progress was simply whatever emerged from the marketplace of ideas. The turn to textualism, and to the Bill of Rights in particular, seemed a way to make the Court the protector of the vital systems of free society while restraining the Court’s discretion to set the parameters of these systems and thereby tyrannize over the social body. Needless to say, Black’s approach had problems of its own. Most important, it was easy prey for the realist critique of formalism. The critique of formalism, it should be noted, was highly successful in the United States— so successful that (in contrast to Continental Europe) formalism has all but disappeared as a serious ideology of judicial decision making. All agree that policy considerations must supplement deduction, at least in hard cases.33 For this reason, Black’s jurisprudence never made lasting inroads on the Court (even if his presence on the Court did much to move it in a civil libertarian direction). Frankfurter smelled formalism almost immediately. In 1939, before their relations had turned frosty, Frankfurter sent Black a note in which he sympathized that he, too, did not like judges legislating, but did not see

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how it could be completely eliminated, and he teased Black about being a Benthamite in his endeavor to squeeze out all judicial flexibility and encouraged Black to take a less absolutist stand.34 Over time, Frankfurter’s strictures were less collegial. He began to refer to Black and the two justices Black had brought under his sway (Douglas and Murphy) as the “libertarian Axis.”35 This was more than just a reference to their block voting. Frankfurter was subtly equating Black’s jurisprudence with political absolutism on account of his textual absolutism. In short, while Black accused Frankfurter of judicial absolutism for his indulgence in judicial discretion, Frankfurter accused Black of the same for using the bench to place democratic state legislatures, the historical protectors of personal liberties and their limits, in an eighteenth-century textual straightjacket. The second weakness was that even Black found his strict textualism unworkable in practice. Black’s most absolute statements of it were confined to dissenting opinions.36 In his majority opinions, he was often forced, by his own admission, to reach outside the text to arrive at the decision he felt justice demanded. Black, too, found the constitutional text at times too inflexible and leaned on extra-constitutional standards to fill out such guidelines as “due process of law.”37 The judicial impasse should now be clear. Frankfurter the realist couldn’t formulate a jurisprudence able to satisfy neutralist strictures on the imposition of substantive values. Black the neutralist couldn’t formulate a jurisprudence able to withstand the realist critique of formalism. Each highlights the weakness of the other and makes it clear just how difficult it is to hold realism and neutralism together in a philosophy of judicial review. Perhaps nothing better illustrates this dilemma than the reaction of the liberal legal establishment to Brown v. Board (1954). In preparing for the decision, the justices, their law clerks, and their professorial allies scoured the legislative record for evidence that the Fourteenth Amendment was meant to ban segregated schooling, to no avail. Indeed, the very same Congress that proposed the Fourteenth Amendment also provided for segregated schools in the District of Columbia, as did most of the state legislatures that ratified the amendment, in their own jurisdictions.38 This obviated appeal to legislative intent. Yet so important did the justices believe the case, and the need for unanimity, that any number of them, including Black, were willing to break their own jurisprudential principles to make it law. Warren’s unanimous opinion argued that, over time, public education had become much more central to American life, so much so that the legislative history was no longer dispositive. Instead, the Court

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appealed to an extensive body of social scientific evidence to reach the conclusion that, when it came to schooling, “separate but equal” was inherently unequal and denied equal protection of the laws. In essence, the justices were “updating” the Constitution by appealing to social science— precisely the kind of realist solution that a Cordozo would have offered, but that Black, and increasingly Frankfurter, had come to reject. And so had the legal establishment. As Morton Horwitz explains, Brown “produced a sharply critical reaction among elite legal thinkers,” even though they were widely supportive of desegregation, “for it challenged at the deepest levels their effort to re-establish a neutral, value-free system of constitutional doctrine.”39 It is telling that what many view as the most self-consistent position to be articulated in this period was that of Learned Hand, the highly respected justice of the Second Circuit Court of Appeals. Wedding the naturalist critique of ethical absolutism to the progressive argument for judicial deference, Hand concluded that it was inappropriate for the Court to impose a “social dogma” on “debatable issues as respects business, economic, and social affairs.” Matters of policy raise imponderable value questions that are best left to democratic legislatures to sort out.40 Hand also inferred (and Frankfurter came close to inferring) that this rationale for abdicating review of economic legislation was, in fact, a rationale for abdicating review of legislation in the policy sphere generally, including such matters as the proper balance between freedom of expression and security, the line to be drawn between church and state, and the organization of public education (Brown).41 The combination of realism and neutralism implied across-theboard deference to legislative enactment, and a virtual end to judicial review outside of questions regarding the distribution of powers.

Breaking the Constitutional Impasse It is difficult to point to any one thing that broke this constitutional impasse. Among those developments that might be cited as having eased the way for the activist turn of the Court under Warren are the retirement of Frankfurter, the most articulate advocate of judicial deference ever to sit on the Court; the fading memory of Lochner and the taboos erected in the course of its repudiation; and the unusually high proportion of Court appointees in this period with more background in governance than judicial craftsmanship—including a former governor (Warren), former senators (Black, Minton), a former mayor (Stewart), a former chairman of the SEC

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(Douglas), and a former secretary of Labor (Goldberg).42 Much should also be made of the liberal democratic ascendancy in Congress and the White House in this period. It is surely no coincidence that the period of the Warren Court’s most activist phase coincided with the Kennedy and Johnson administrations (just as it is no coincidence that the conservative activism of the current Court coincides with a shift of Congress and the presidency into conservative hands). In the mid-1960s, the Court could translate its values into judicial decisions with relative freedom from retaliation by the other branches of government—such as the powerful Southern congressional committeemen, who, after virtually every liberal decision handed down during the 1950s, had raised quite credible threats to override it and strip the Court of appellate jurisdiction in the area.43 Finally, one might cite the Court’s exaggerated sense, in part born of this liberal ascendancy, that the mainstream of the country agreed with them. As Powe puts it: For the first decade, the Warren Court was able to decide cases on the basis of “an idealized set of public values” that it could presume that all Americans (with the exception of ignorant outliers) shared: ending segregation, moving past Victorianism, leaving religion as a personal decision in the home or church, “one person, one vote,” and precluding police from using the third degree.44 But what I wish to explore are the ideological changes that helped legitimate this turn, which is a question separate from, though certainly not unrelated to, the question of what emboldened the Court. Two things proved necessary. First, the Court had to figure out how to accommodate itself to the neutrality ideal; then it had to learn how to turn it against others. The Court may have met the ideal imperfectly, but so long as other government actors fell more short, the Court could turn the neutrality ideal from a weakness into a relative strength. In the areas of due process and civil liberties, it did so to great effect.

15 Neutrality and the Due Process Revolution

Because of their remove from the legitimacy conferred by the ballot, Supreme Court justices are forced to become political philosophers to legitimize their authority, especially their power of judicial review. But they certainly have not spurned outside assistance. The conundrum facing the legal profession beginning in the 1940s was how to vindicate the idea of the rule of law while remaining faithful to realism and neutralism. How can judges justify striking down legislation as unconstitutional, in light of the realist critique of both natural law and the sanctity of the common law? And how, in hard cases, can judges render decisions without appeal to substantive standards, in light of the realist critique of formalism? In other words, how can judicial review go forward, and how can even normal adjudication go forward? It is hardly surprising that law schools should have directed their attention to this conundrum, since realism and neutralism were largely university products. And indeed, it was from the law schools that there emerged the political-legal philosophy that most successfully justified the work of the courts in terms that were, at least on the surface, consistent with both realist and neutralist strictures. The key was the interpretation given to neutrality. As noted in Part III, the ideal of state neutrality received two principle interpretations—and the Court found a use for each. One interpretation was that government action should be neutral in its consequences, not favoring one vision of the good life over another. In the next chapter, we will see how this ideal rationalized and radicalized the Court’s civil liberties jurisprudence. But there was another interpretation—the low road—that focused on procedures. Americans, it was argued, do not agree on substantive values, but they do agree on how to proceed in the face of their disagreements. That is, they agree on procedures, on processes. Furthermore, to 280

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safeguard against totalitarian imposition, the governmental process is to be neutral among contending parties and their claims. Substantive policies may emerge from it, but the process is to be an open and fair one, in which the presiding authorities advance no substantive agenda of their own. Legitimate government is a government of neutral process. I have argued that this antitotalitarian, proceduralist interpretation of America provided a common paradigm for the postwar social sciences and, I would now add, for jurisprudence as well. This stands to reason, since all were embroiled in the same 1930s debate over totalitarianism. Each now applied this paradigm to its particular area of concern. Political scientists worked it up into a process theory of American democracy—namely, pluralism. In perfect parallel, law professors worked it up into a process theory of American law. And this led to a concept of neutral judicial procedure that looked to pass unscathed between the horns of realism and neutralism, and to provide renewed legitimacy to the Court’s work. This was specifically the achievement of the “legal process school.” Although this school initially counseled broad judicial deference to legislatures, it generated new legal concepts that could be plundered for more activist purposes.

The Legal Process School Like pluralist theory, legal process theory took as its point of departure the procedural consensus that Americans were believed to share despite substantive disagreements. The process school’s term for the operation of this procedural consensus was “institutional settlement.” In passages written in the early 1950s as part of his teaching materials, Henry Hart Jr., a Harvard Law professor and prominent member of the just-coalescing legal process school, develops the idea of institutional settlement and presages how it would be used by process theorists to finesse the neutrality stricture: When questions arise which in some way or other have to be settled, people find a means for settling them . . . [T]he alternative to force is law. And the first recourse of law, in dealing with intractable questions, is to seek not final answers but an agreeable procedure for getting acceptable answers. People are bound to disagree . . . about the substance of the answers . . . But philosophers and ordinary men alike can agree that if some answer is better than no answer at all a way must be found to get an answer . . .

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By duly established procedures, statutes are enacted and in turn are amended or repealed or declared invalid by the courts . . . Other settlements are arrived at by executive or administrative action, subject to established procedures for self-correction or correction by courts or legislatures. Within the framework of these officially established settlements, private persons live their lives and . . . make and carry out the host of private settlements which, under the official settlements, they have the power to make . . . If processes of institutional settlement are essential to the maintenance of society, then decisions which are the due result of those processes must, by virtue of that fact alone, have a moral claim to acceptance.1 In a subsequent draft of these teaching materials, destined to become, in mimeographed form, among the most widely circulated and influential materials ever introduced into American legal education, Hart and his colleague Albert Sacks present the notion of institutional settlement as the key to the law. [T]he central idea of law . . . [is] the principle of institutional settlement . . . [W]hen the principle . . . is plainly applicable, we say that the law “is” thus and so, and brush aside further discussion of what it “ought” to be. Yet the “is” is not really an “is” but a special kind of decision of “ought”—a statement that . . . a decision which is the duly arrived at result of a duly established procedure for making decisions of that kind “ought” to be accepted as binding upon the whole society unless and until it is duly changed.2 The notion of institutional settlement, riding atop a sharp distinction between (subjective) substance and (normative) procedure, allowed the process school to transcend the prewar dispute over the law, agreeing with the scientific naturalists that value questions could not be rationally resolved, while agreeing with the rationalists that the rule of law was something more than politics. It was the observation of “duly established procedure.” The prewar imbroglio between naturalists and rationalists over the rule of law, it now appeared, was an artifact of the mistaken assumption that the validity of a law is to be determined by reference to a substantive standard. In fact, validity is determined by reference to the process used in arriving at the outcome (that is, was proper procedure followed or not). Although Courts, like legislatures, decided matters of substance, they were not guilty of imposing values, because the processes were

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agreed to. Legal decisions were neutral to the extent that the courts used proper procedures. The notion of institutional settlement also allowed process theorists to remain faithful to realism. First, they could accept the realist critique of the common law and its distinction between “natural” and “governmentinfluenced” spheres. The common law was a part of the web of “officially established settlements” that provides the procedural forms under which individuals make publicly enforceable “private” settlements (enter into contracts, marry, and so forth). Being officially established, it was subject to legislative revision. Second, and more important, process theorists could accept the realist critique of formalism—although this was a much more difficult trick to turn given that, as neutralists, they could not appeal to substantive standards to fill in the “gaps” in the law as many realists had envisioned. Another device was called for to fill in the gaps in the law. The solution proposed by the process school is best appreciated in light of its broader argument about how social disputes are resolved in a properly constituted society, which they assumed America to be.

Institutional Competence and Reasoned Elaboration In the same early draft of his teaching materials quoted above, Hart notes that “implicit in the problem of settling and carrying out the terms of collaboration in a society . . . is the need for deciding who shall decide the various questions which arise in the process, and how they shall be decided.”3 The question of “how” is actually the decisive one, for if we can determine this—if we can determine which kinds of procedures are best suited for settling which kinds of disputes—then we can determine “who” ought to settle them. That is, we can determine which of the available social institutions ought to be assigned which social disputes, on the basis of the procedures they use (or can be brought to use). Which kinds of disputes are best left to legislatures? Which left to agencies? Which to the courts? Once this determination has been made, then the principle of institutional settlement kicks in: the dispute having been settled by the proper institution using the proper procedures, the decision “ ‘ought’ to be accepted.” So how does one determine which procedures are best suited for resolving which kind of disputes? It is at this point that the legal process theorists, just like the realists before them, called on a bit of “objective social

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science.” They, too, needed this particular kind of external guarantor to cash their claim of neutral adjudication. However, while the realists called on social science to provide answers to substantive questions (Cardozo on social progress, for example), process theorists called on social science to provide answers to procedural questions. Specifically, the legal process school invoked the science of “functional analysis” to analyze the adaptation of certain institutional procedures to certain categories of dispute, on the assumption that procedures and disputes can be analyzed into a finite number of discreet types and then paired off in a natural way. With this knowledge, it would be possible to determine the “competence” of a particular social institution for handling a particular kind of dispute, and disputes could be assigned accordingly.4 The terms they chose to characterize the country’s institutions mark the process theorists as at once realists, progressives, and devotees of the relativist theory of democracy. Of major social institutions, legislatures, as expressions of the democratic process, were viewed as far and away the most important institutions for resolving social disputes. Their “institutional competence” was to decide “policy” disputes that turn on value questions. When a policy question is decided by the legislature, it is, by the principle of institutional settlement, binding—provided, of course, that correct procedures were followed, which is to say that the democratic process behind the decision was an “open” one. But, at least for the first generation of process theorists, this was a pro forma demand, since they, like American intellectuals generally, more or less took it for granted that America’s political institutions were in good working order. Administrative agencies display a different institutional competence. They were viewed as organizations of expertise, operating under a delegation of legislative authority to tackle specific, “technical” problems of social life. Their decisions, whether resulting in specific actions, or in regulatory regimes, give specificity to the general legal standard enunciated by the legislature and (again, provided that proper procedures have been followed) deserve acceptance without further review. Which brings us to the courts. In the legal process view, courts need to behave very differently depending on whether they are undertaking their ordinary work of common law and statutory adjudication, or their extraordinary work of judicial review. The special competence of the courts, on the process view, is to engage in what Hart and Sacks termed “reasoned elaboration”—the identification of principles and policies contained in the existing body of common and statutory law and the extension of these, by

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reasoned elaboration, to new cases. Judicial decisions would “cohere” with the existing body of law.5 This was the device by which the process school hoped to satisfy the demand for neutrality while accepting the realist critique of formalism. While policy considerations were necessary to decide hard cases, they would not be the policy preferences of the judge, but of the legislature, as these could be divined from the existing body of law. No extra-legal substantive standards were necessary, or allowed. Thus, while the principle of “institutional settlement” created the possibility of a normative neutralism at the institutional level, the method of “reasoned elaboration,” as the distinctive procedure of the courts, brought this neutralism into the judge’s decision-making process, making the courts the neutral institution par excellence. Under shelter of these safeguards, the legal process school encouraged a considerable degree of activism on the part of courts in their ordinary work of common law and statutory adjudication. Legislatures had the institutional wherewithal to settle only the big societal disputes, while everyday dispute resolution was delegated to the courts, with the understanding that courts would settle them not merely by the letter, but also by the spirit of the law, which is to say, in accordance with the underlying policy goals of legislative enactment. Courts were cast in the role of interstitial activists, filling in the gaps in the law not with their own substantive values, but with those of the duly elected legislature. Any lingering fears of judges imposing their own values were allayed, at least in the area of common law and statutory interpretation, by the consideration that judicial interpretations were subject to correction by subsequent legislative enactment. And anecdotal evidence suggests that the process school was quite influential— perhaps at its most influential—in giving courage to judges to make reforms through the vehicle of statutory interpretation. The method of reasoned elaboration, however, gave the courts no such license in the area of judicial review. Reasoned elaboration aimed to extend the legislature’s policy goals. A court could hardly reasonably elaborate from a piece of legislation to decide against the legislation itself. Was this the end of the Court’s tether?

Neutral Principles and Neutral Procedures The process approach to judicial review as a whole was highly conservative, highly deferential. We have already seen that Judge Learned Hand, who was closely tied to this school, was moving toward the total elimination of

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review power, pointing out that it is not explicitly granted by the Constitution but is merely inferred from the separation of powers. However, given the centrality of the idea of constitutional constraint to the American conception of the rule of law, most process theorists refused to believe that the Court was left with nothing in the way of review powers. The problem was in justifying it. Herbert Wechsler, more than any other process theorist, made this task his own. In perhaps the single most widely discussed law article of the second half of the twentieth century, “Toward Neutral Principles of Constitutional Law,” Wechsler highlighted a procedure that he believed gave the Court the necessary institutional competence for reviewing legislation, at least in some cases. I put it to you that the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved. No legislature or executive is obligated by the nature of its function to support its choice of values by the type of reasoned explanation that I have suggested is intrinsic to judicial action—however much we may admire such a reasoned exposition when we find it in those other realms.6 What Wechsler was arguing, in typical process style, is that what is crucial is not what the Court answers, but how the Court answers it; what matters is not the substance, but the procedure. In the case of judicial review, the relevant procedure was the use of reasoned explanation and “principle.” By itself, this was a somewhat looser standard for judicial conduct than the standard of “reasoned elaboration” advanced by Hart and Sacks for statutory interpretation. Reasoned elaboration at least demanded that decisions be based on principles laid down (or tacitly approved of ) by the legislature. Judicial review would obviously require reaching for principles other than these. But what kind of principles? Principles can be value-laden, and allowing the Supreme Court to countermand the legislature simply because the Court was clever enough to cast its decision in terms of some principle or other would return it to the bad old days of Lochner, and to the image of totalitarianism—the image of a small elite imposing its values on everyone else. What matters in judicial review of legislation is that the Court reason from neutral principles. When it could do this, review would not be antidemocratic, because value judgments would not be in the equation. When it could not give neutral principles, then the question was by

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definition purely “political,” and should be left entirely to the discretion of the legislature. The positing of “neutral principles,” deliverances of a faculty of “reason,” was clearly backsliding, from a scientific naturalist point of view. But in practice, Wechsler didn’t seem to find any such principles. His article takes issue with all the leading decisions of the young Warren Court—including, most famously, with Brown v. Board of Education—as examples of unprincipled activism. Nevertheless, his article brought into currency a theoretical strategy, by opening up, within the framework of process theory, a justification for judicial forays against the executive and legislative branches, should some persuasive means of deriving neutral principles be found. And it wouldn’t be long before American moral, political, and legal philosophy was swept up in a Kantian and social contractarian revival (or, more accurately in the case of the Kantianism, a first American birth), as authors of various stripes—some liberal, some libertarian—claimed to have found such principles, and to have derived from them neutral rights regimes, most of which lent themselves to use as justifications for various shades of constitutional rights jurisprudence.7 We will encounter some of these in the next chapter. There was also a second, if less explicit, ground for judicial review opened up by Wechsler and other process theorists, which has been less remarked, but is even more remarkable. The practical conservatism of the process school with regard to judicial review should not distract our attention from the vast prospective expansion of the Court’s authority that it rationalized. To see this, we again hark back to the earliest Hart passage quoted above: “Implicit in the problem of settling and carrying out the terms of collaboration in a society . . . is the need for deciding who shall decide the various questions which arise in the process, and how they shall be decided.” Whoever makes this metadecision about who decides will obviously have a mighty role to play in shaping society. One might think that in a democracy, it would be given to the legislature. But not so. The process theorists gave this role, or believed that the Constitution gave this role, to the Court. Gary Peller brings this out in his discussion of why, on Wechsler’s understanding, judicial deference to the legislature on “political issues” is not actually an abandonment of the Court’s constitutional oversight: Political issues merely required the judiciary to do what it must do generally in judicial review: interpret the Constitution to determine which institution was the “duly established” one for the resolution of that particular kind of dispute.

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The notion that broad judicial deference to legislative judgment avoided controversial constitutional issues was therefore, in Wechsler’s view, incoherent . . . Even as the judiciary appeared not to rule on “political questions,” deference to the legislature involved an implicit judicial determination that the Constitution gave the legislature the authority to decide the particular issue.8 Pressed to its logical conclusion, the process approach, despite its apparent modesty, provided the resources for justifying a scope of authority for the Court of incredible breadth (and far beyond what it could practically sustain). At its most assertive, it implied that the Court was specially endowed with the institutional competence to make determinations of institutional competence in a neutral way—by means of its neutral proceduralism, including the use of (presumably value-free) functional analysis and principled interpretation of the Constitution—and furthermore, that the Court was competent to determine proper procedure within these various institutional arenas, by the same kind of neutral analysis. This was much more than the policing of the separation of powers. It encompassed how these powers ought to organize and conduct themselves. And, once started down this path, there seemed no reason why its scope should be limited to policing the three classic constitutional powers—legislative, executive, and judicial. From the outset, process theory brought under its theoretical purview the extra-constitutional institution of government agencies. It also found a place within its functional analysis for the private contracts (“private ordering”) of individuals—the “institutional competence” of which was to satisfy certain classes of wants in a flexible, individualized manner, subject to regulation (legislative, administrative, and judicial) to facilitate coordination and curb abuse.9 Since even these “private” relations were subject to regulation, certainly all the extra-constitutional entities in between (political parties, business corporations, nongovernmental organizations, and so forth) could be encompassed as well, as potential objects of the Court’s policing powers. Again, the early process theorists themselves shied away from aggressive claims for judicial oversight. Deference was their mantra. It was not until John Hart Ely, writing in the mid-1970s, that process theorists took a serious look at the legislative process for the purpose of distinguishing between legislation that deserved deference and that which, owing to procedural irregularities (including enactment by bodies tainted by unfair elections), did not.10 But it created an intellectual framework and lan-

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guage for understanding and justifying the Court’s “due process revolution” when it happened. As Peller notes: The incredibly quick acceptance of the process approach across the legal field reflected the sense on the part of postwar legal scholars that they had found a way to pull everything back together, that their intellectual commitments were fundamentally consistent with their moral and political beliefs, so that understanding the principle of institutional settlement in law in turn meant being able to demonstrate what was wrong with Nazism (and right with America) without having to resort to necessarily unprovable moral judgments. They could reject the traditionalist conception of law and yet preserve the distinction between law and politics necessary to their understanding of the difference between a regime of law and an authoritarian regime of imposed values.11 It should be noted that process theory was not without its weaknesses, as became clear with time. As Seidman and Tushnet observe, process theory approaches to the law—what they call “structural theories”—are “premised on the belief that people with radically different values could agree on a system for settling their disagreements.” The problem was, it was hard to get people to sustain their support for the system if they were not convinced that it largely promoted their substantive commitments.12 The postwar consensus on America’s institutions was partly real, forged in the crucible of war. But it was also partly an illusion. Social scientists and legal scholars anxious to prove the complementarity of scientific naturalism and Americanism embraced the notion that Americans share a procedural consensus. In so doing, they often papered over the fault lines between the existing social order and a variety of groups—notably African-Americans and women—whose social expectations had been raised by the very same wartime experience. Process theory, with its assumption of procedural consensus, would not long survive the eruptions of the 1960s. But the concept of neutral judicial procedure would outlive the particular intellectual framework that brought it into being.

The Invisible Hand of Judicial Authority: Burden of Proof Shifting The process school’s account of judicial procedure had a problem of its own, however. What it neglected to mention is that, with no noticeable

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change in external procedure, and without any doctrinal departures, courts can yet reverse outcomes, and occasionally effect dramatic institutional reforms, simply by tinkering with the presumptions and burdens faced by litigants in a particular case. This is the area of discretion within judicial procedure that, despite appearances, makes it something more than neutral. Our received image of legal justice is of a woman blindfolded, weighing competing evidence on a balancing scale. The Anglo-American legal tradition clothes this figure in the quaint trappings of empiricism, treating trials as a straightforward encounter between a suspended judgment (of the judge or jury) and the evidence (as reconstructed through an inductive process of fact-finding).13 What is not emphasized is that, before fact-finding even begins, courts have distributed presumptions (such as the presumption of innocence in criminal cases, or the presumption of constitutionality for certain types of legislation or governmental action, for example) and burdens (burdens of proof, burden of going forward, and so forth) among the disputing parties so as to guarantee an outcome even in the face of daunting factual or ethical ignorance. Presumptions and burdens establish a default outcome. If the burden is not met, the presumption obtains. Where judicial authority comes into play is in discretely adjusting these technical rules of evidence and procedure. For example, a burden of proof can be increased, until it becomes so onerous as to be effectively impossible to bear. When the Court set out to desegregate schools, for example, it did not outlaw segregated schools outright. Rather, it imposed, through a series of cases, an increasingly heavy burden upon states to prove that their separate school systems were in fact equal, until in Brown, without ever actually overruling the “separate but equal” doctrine, it finally made the burden unbearable.14 Or a burden can be shifted from one party to another, establishing a new default. For example, in Bolling v. Sharpe, the companion case to Brown, the Court confronted the segregated school system of the District of Columbia. Because the equal protection clause of the Fourteenth Amendment was directed only against the individual states, the Court had to resort to the Fifth Amendment guarantee of due process to strike down the system. The Court burdened the government with proving that segregation in public education was related to some “proper governmental objective,” noting that “classifications based solely upon race” are “constitutionally suspect.”15 In doing so, it completely reversed the presumption of legislative constitutionality that it had sworn to since 1937. And, of course, it found the government case wanting.

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As this shows, the Court’s discretion in distributing presumptions and burdens gives judges the capacity to effect sweeping policy changes. Yet because this exercise of authority occurs “behind the scenes,” courts have been able to preserve the posture of judicial neutrality, lending the process legitimacy. By shifting the burden of proof among parties to a suit, judges establish new defaults that allow them to dismiss rival positions as based on inadequate evidence or unprincipled activism. It is always the other guy who has the ideological ax to grind. All judges, regardless of ideological persuasion, fold their decisions in this mantle of judicial neutrality. As Gaskins notes, this device “has insulated the courts, to some degree, from recent assaults made on other forms of authority. This may explain the current tendency in American society to impose judicial structures on contested issues in environmental policy and medical ethics—fields that require finality on largely undecidable scientific and ethical issues.”16 Authority out of sight, authority out of mind.

Burden Shifting and Civil Liberties The courts have long controlled the distribution of burdens among litigants. But volatility was traditionally contained by the normative pull of common law tradition. The advent of legal realism changed this. The realists (along with their Critical Legal Studies successors) developed batteries of arguments that, for the sake of generating figure/ground reversals of what counts as “natural” and what as “artificial,” destabilized common law baselines and presumptions. Their success encouraged the further growth of such arguments, now attaching to every major constitutional question in the form of stereotyped argument-counterargument clusters on which judges can draw, in any particular case or line of cases, to justify shifts in presumptions and burdens among the contending claimants. The result is that in recent decades burden-shifting has become a kind of judicial sport, played at the constitutional level and generating significant constitutional change. An example will be helpful. In the area of civil liberties, there has grown up around each of the liberties one set of arguments outlining the state’s legitimate interest in the matter and another set outlining the reasons for the state to be excluded— social solidarity versus freedom of conscience, national security versus the free flow of information, and so forth. If judges set the state’s interest as the default, then the burden falls on the defendant to show that his or her liberty interest outweighs that of the state. If judges set the individual’s

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liberty interest as a default, the burden falls on the state to show that its interest outweighs it. Frankfurter tried mightily to preserve the presumption of legislative constitutionality into the postwar period in all but extreme cases, and he accordingly made a habit of emphasizing legitimate state interests in his decisions. As we have seen, however, strong ideological currents were pushing against this presumption in the area of civil liberties. Black, who was swept along by these currents, tried, but failed, to bring the Court to an absolutist (formalist) interpretation of the First Amendment’s protection of free speech. This would not have been a change in presumption, but an outright prohibition. But it was too much of a leap for his brethren. Nevertheless, Black’s fallback position, which he could frequently get four other justices to join, accomplished almost as much simply by reallocating presumptions and burdens. Black’s first step was to shift the burden of proof from the individual to the state. Black accomplished this by reviving the clear and present danger test, placing the burden on the state to show that the individual’s presumptive right to free speech was outweighed by the state’s right to, say, regulate the distribution of handbills for the sake of public order. His second step was to ratchet up this burden. However, he initially avoided any formal declaration that the burden had been increased. Instead, he simply dropped an additional interest into the scales. Beyond the free speech interest of the individual immediately involved, democratic society as a whole had an independent interest in the free flow of information, an interest that effectively cancels out, in all but extreme cases, its interest in public order. For example, in Martin v. Struthers, a 1943 case that represented a turning point in Black’s First Amendment jurisprudence, Jehovah’s Witnesses were arraigned for the violation of a city ordinance against the doorto-door distribution of handbills.17 At first Black sided with Frankfurter and drafted an opinion for a Court split 5–4 in which he played up the state’s interest in regulating the manner in which information is disseminated and the city’s right to choose rational means for protecting this interest. Then he changed his mind and wrote a 5–4 opinion the other way, in which this interest ran up against “the freedom to distribute information to every citizen whenever he desires . . . [which] is so clearly vital to the preservation of a free society.”18 As Silverstein notes, “[t]he state interest had remained the same; the particularized interest of the appellant, however, had given way to a more generalized society interest in the exchange of ideas.”19 By this kind of stacking up of interests, individual and societal, against

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the state interest in regulation, and placing the burden on the state to make the case that the regulation was nevertheless warranted, Black brought the free speech protection to something approaching absolutist dimensions without formally discounting the state’s interests. It was just that, over and over again, the state failed to make its case. After two years, Black and his allies gave formal notice of the shifted and heightened burden. In the words of Justice Rutledge, all regulations of speech must overcome “the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.”20 The gradual manipulation of evidentiary procedures thus allowed the Court to work a partial civil liberties revolution even before the First Amendment was (as I describe in the next chapter) hitched directly to the neutrality ideal.

Burden Shifting and the Due Process Revolution Free speech is one area in which burden shifting brought the Court back into the constitutional game. Burden shifting also brought dramatic results for the Court in the area of equal protection. Government use of “suspect classes”—categories such as race and gender—was subjected to “heightened scrutiny” by the Court, with the government asked to prove that a “compelling state interest” justified this use.21 It is in the area of due process, however, that burden shifting yielded the greatest increase in the Court’s authority vis-à-vis other institutional actors. With the help of the neutrality ideal, it brought an unprecedentedly broad array of governmental and nongovernmental bodies under the Court’s tutelage, on the ground (borrowed from the legal process school) that it was the Court’s institutional competence, and obligation, to police the institutional processes of other bodies and guarantee their neutrality. How did this work? In contrast to equal protection cases, in which discrimination lay in an overt classification system, in due process cases, discrimination—that is, the violation of procedural neutrality—was held to lie in the hidden recesses of administrative discretion. To raise the possibility of discrimination—of substantive bias—one had to do little more than trot out the old legal realist arguments about the presence of discretion in rule-based systems. When deployed in the context of the neutrality ideal, such arguments could carry deadly force. All that was needed was for the Court to shift the burden of proof from the individual making the charge to the entity against which the charge was leveled, asking it to prove that the plaintiff had been

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treated neutrally—without bias, without error, and with all due procedural safeguards in place. This could be deadly, because such a burden of proof could be virtually impossible to shoulder. Beyond losing the case, the entity might effectively be forced to reorganize itself, for better or worse, so as to conform to the Court’s conception of a procedurally correct regime. In this manner, the same potent brew of realism and neutralism that had thrown into question the legitimacy of the Court’s work could be turned by the Court against other rule-based systems. What began as an institutional weakness could be made into a relative institutional strength.

Purification Rites before the Battle The Court’s due process authority is predicated on its standing as the final arbiter of what counts as procedurally neutral. The great power and flexibility that comes with this is a function of how difficult this standard can be to meet, should the Court decide to pull out all the realist stops. But, of course, the Court, too, is an organized governmental body, subject to accusations of institutional bias. Therefore, before the Court could presume to stretch itself on behalf of the ideal of procedural neutrality, it had to regularize its own proceedings, squeezing out all outward signs of discretion, even while retaining its discretion over the distribution of presumptions and burdens. The Court had already begun this self-purification in the 1940s, in its initial wave of antitotalitarian criminal procedure decisions. The Warren Court repeated and extended the rite in the 1960s, using the Fifth Amendment due process clause not only to raise its own procedural standards and those of the lower federal courts, but, with the aid of the Fourteenth Amendment, to impose these standards on state courts as well. Gideon v. Wainwright (1963), for example, forced state courts, like federal courts, to provide indigent defendants with legal counsel in felony cases. And In re Gault (1967) required that all state juvenile court hearings adopt a host of federal court procedures such as the formal notice of charges, legal representation (appointed by the court if necessary), the opportunity to confront and crossexamine witnesses, the privilege against self-incrimination, a full transcript of trial proceedings, and access to appellate review.22 After these reforms, the criminal justice system could present itself as a paragon of nondiscretionary, procedural justice.

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The Waning Reputation of Legislatures and Government Agencies Yet this alone was not sufficient to clear the way for the Court’s due process revolution. Two climatic changes are noteworthy for their part in pushing the Court beyond process school conservatism: the sinking reputation of other governmental bodies, and the simultaneous raising of the standard they were to be held to—namely, the new standard of neutrality. In other words, it was not the Court alone that would have to contend with the legitimacy problems raised by the neutrality ideal. Increasingly, all governance institutions would. Having fought a long, hard war in defense of the “American way of life,” and having drawn invidious comparisons throughout this conflict between their country and its totalitarian antagonists, Americans after the war were apt to view American institutions with an unusual degree of self-satisfaction. This was true even of American intellectuals. The United States as described by postwar social science—what America is—was widely conflated with what a liberal-democratic society ought to be.23 Also, the process theories to which most of them subscribed had a certain amount of conservatism built into them. If what held society together was a consensus on procedures, with no shared substantive commitments in back of it that could pull the whole back together if disrupted, then rapid change would appear a threat to the very existence of society. This was not a propitious climate in which to launch major social reforms. What is more, the presence of so many New Dealers on the Court naturally inclined it to defer to the actions of administrative agencies, and also to democratic legislatures, whether on populist grounds that legislatures represent the “will of the people” (Black); or on progressive, Deweyan grounds that they provide a laboratory for experimentation and progress (Frankfurter); or on pluralist grounds that they represent a benign balance among competing social groups (Clark and Stewart).24 However, the postwar nimbus around American institutions would gradually fade for the intellectual classes, even before the eruptions of the sixties and Watergate made the feeling general. No doubt the experience of McCarthyism contributed greatly to intellectuals’ reassessment of American democracy. This was paralleled by a reassessment of the work of government agencies. James Freedman, in his survey of the vicissitudes of agency reputation, notes that “Justice Douglas, once a New Deal child of light in his enthusiasm for administrative government, is something of a paradigmatic figure in his growing disillusionment with the powerful role that the federal

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bureaucracy plays in American life.” From a long line of relevant Douglas opinions, Freedman picks out the following representative passage: The bureaucracy of modern government is not only slow, lumbering, and oppressive; it is omnipresent. It touches everyone’s life at numerous points. It pries more and more into private affairs, breaking down the barriers that individuals erect to give them some insulation from the intrigues and harassments of modern life.25 It is no coincidence that as faith in legislative process and agency expertise waned, so did the deference of the judiciary.

The Court Grabs the Reins The beauty of due process review was that, although capable of forcing dramatic policy changes and institutional reorganizations, the Court, in using it, did not need to drop its disavowal of substantive intervention. Invoking a distinction between substantive and procedural due process, the Court could argue that its concerns were of the neutral, purely procedural variety. As the (self-appointed) guardian of neutrality, it was merely ferreting out the abuse of discretion. But as the Court had learned in its own self-purification rite, implementing “merely procedural” standards could garner dramatic substantive results, reigning in the activities of lower courts and police departments. Now the Court cautiously moved to impose its own standards of procedural justice on bodies further and further removed from the legal system. For example, child welfare agencies, whose decisions on matters of adoption, custody, abuse, and neglect had previously been subject to only perfunctory review, found their decisions increasingly under the Court’s magnifying lens and subject to reversal for failure to use trial-like procedures. Similarly, challenges were raised to the parens patriae discretion of state mental health systems and educational institutions. And it wasn’t long before public and quasi-public entities of all stripes were finding themselves under review for procedural irregularity. As Gaskins puts it: In the United States during the 1960s, the Supreme Court provided a virtual laboratory demonstration of [the method of burden-shifting] in its far-reaching extension of the due process clause of the Constitution. At least for a brief period, the federal courts seemed to offer certain litigants a powerful forum for challenging the presumptions

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of authority and competence enjoyed by public agencies and officials and by a number of nominally private actors . . . Public school officials, welfare bureaucrats, social service workers, psychiatrists, and everyone else targeted by due process suits was required to justify his or her actions under standards that transcend the capacities of complex organizations and professional practitioners. By a contorted analogy with the conventions of criminal trials, the defendants in due process cases, in effect, were presumed guilty until proven innocent. The challengers, meanwhile, were under no obligation to prove anything, although their advocates had to work hard enough to translate overarching substantive issues into the legal idiom of due process.26 Tellingly, the institutions under assault were overwhelmingly “parastate” institutions of progressive provenance, which had been erected under a very different public philosophy. Designed as purposive institutions oriented to the public good, they had discretion and flexibility built in, preferring the spirit over the letter, and professional ethics over procedural safeguards. It is therefore not surprising that they fared poorly under due process review. Just when social scientists were rediscovering the advantages of informal, flexible organizational arrangements, a combination of court orders, fear of court action, and simple emulation led public and private bodies to reorganize themselves along the formal, inflexible procedural lines of the criminal justice system.27 There is no question that due process cases righted many individual wrongs. But the chosen means of redress regularly brought institutional transformation in its wake, and it may well be asked whether the resulting proceduralization has suited all organizations, or even all parts of the legal system itself. The juvenile justice system, for example, was a typical parastate product of the progressive era. Coming out of the “child-saving” movement, it saw itself as offering treatment and rehabilitation rather than punishment, and prided itself on attending to the whole child rather than the specific act, using informal procedures and individualized sentencing. The judge was expected to act in the child’s best interest and, given the nonadversarial proceedings, due process protections were deemed unnecessary. This changed with In re Gault, which granted to juvenile defendants most of the due process protections afforded adults in the federal criminal system. This decision is seen by most constitutional lawyers to have been a great victory for liberal justice. But many defenders of the juvenile system

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now see it as a setback. By making juvenile proceedings formal and adversarial, it helped legitimate a shift of emphasis within the system from rehabilitative to punitive justice, leaving juveniles with the worst of both worlds—a set of adult procedural protections they are too immature to fully utilize and a set of adult sanctions that neither rehabilitate nor, given the shorter time horizons of adolescents, effectively deter.28 In a sense, the neutrality principle turned the legal realist legacy inside out. Realism, at least in its more extreme versions, suggested that all law had a political dimension. In contrast, neutralism suggested that all politics— all governance—should really be lawlike. During the New Deal, government colonized the law. It was now the law’s turn to colonize government. The Court’s assaults on other governance institutions resulted in the consolidation of authority in legal institutions and in quasi-legal, bureaucratic institutions able to employ the rhetoric of legal neutrality. The bureaucratic institutions could never rest secure, however. Even after transforming themselves from informal to formal rule based systems, they remained subject to periodic assault through standard legal realist insinuations. The only reason the Court has largely escaped this vulnerability is that it is the one doing the burden shifting! This is the secret of the Court that no other institution can imitate, however many pages it might take from the Court’s procedural book. For all other institutions, their only defense is the further elaboration of formal rules and procedures, to the point where the institution’s functionality may be seriously degraded.29

Cycling of Constitutional Baselines Needless to say, the liberal forces in American society could not keep the mysteries of burden-of-proof shifting to themselves forever. When first confronted with Warren Court activism, conservatives warmed to the progressive case for judicial restraint. Invoking the legal realist legacy themselves, they argued that the Court had not purified itself enough, but was imposing a “liberal agenda” on the country. Subsequent capture, by turns, of the White House and Congress reinforced this about-face, leading conservative politicians to adopt the same populist political rhetoric, and to support the same presumption of legislative constitutionality, that the progressives had originally deployed against them. However, as the Court has swung in a conservative direction, under Berger, Rehnquist, and Roberts, conservative judges have learned how to turn the game of burden shifting to their own ends. On the one hand, they

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developed the inevitable strategy of “double-negative” proof burdens— imposing a burden of proof on advocates who—perhaps for the sake of protecting a welfare recipient from being dropped from the roles, or an immigrant from being deported—would wish to shift the burden of proof onto the responsible state or federal agencies. On the other hand, they learned to use the Warren formulae of equal treatment and due process to advance conservative causes—for instance, giving strict scrutiny to affirmative action programs, shifting burdens of proof onto those who would preserve their constitutionality.30 In sum, constitutional practice has become an erratic series of reversals of presumptions and burdens. And in an era in which neutrality has become a touchstone of legitimate authority, constitutional battles over presumptions are, at their deepest level, waged in terms of rival claims about which social process best embodies neutrality—democratic politics, market exchange, or the proceduralism of the criminal justice system. Marketize, democratize, or proceduralize: these are the rallying cries of the day. And though they (or at least the first two) have served as rallying cries before, what is most striking about the present scene is that these cries are not raised because the relevant activity is admired for its own sake, as the expression of man at his best, or as the embodiment of natural or sacred rights, or as the leaven of admirable virtues, but because the relevant mechanism promises to squeeze out corruption, or partiality, or the imposition of values—in other words, the cries are raised in the name of neutrality. But given the impossibly high standard of neutrality, all constitutional victories are ephemeral. Each process is vulnerable to one or another set of stock accusations of bias, resulting in a perverse, judicially ratified triangular trade among constitutional baselines. Legal realism by itself would have curtailed judicial power, throwing the ball back to the legislature and executive for most purposes. But the addition of neutralism brought the Court back into the game, and even elevated its stature. Although the combination of realism and neutralism tends to delegitimize all exercise of authority, other governance institutions were more susceptible to the charge of nonneutrality than the Court, whose most important discretionary power—its power to shift burdens of proof— was obscured by a lingering empiricist understanding of the judicial process. The Court was thus in a position to capitalize on the general institutional precariousness and gather the authority others had lost. That the Court seized this possibility with such energy, and with so little sustained resistance,

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is testimonial to its success in presenting itself as, and perhaps honestly believing itself to be, the viceroy of neutrality. Sallying forth on the back of the neutrality ideal, the “least dangerous branch” of the government becomes one of its most potent. But the neutrality ideal, while empowering the Court, also leaves it vulnerable, for the Court, too, is a branch of the government. This is the reason for the Court’s preemptive move toward procedural purity, as well as its incessant, though quixotic, search for a neutral ground on which to base its decisions. Is the Court neutral when it acts to keep the political process open? When it restricts itself to “reasoned elaboration”? When it adheres strictly to constitutional text and its “original intent”? When it “merely” polices procedure? Few today believe such a neutral ground exists, in part because all such grounds have been subjected to cogent critique, but even more, because of the conduct of the Court itself—its invocation, by turns, of conflicting, though all professedly neutral, interpretive standards during incessant rounds of burden shifting in the service of substantive ends. How long this can continue without bringing down the whole house of cards remains to be seen.

16 Neutrality, Civil Liberty, and the Culture Wars

Given the dual allegiance of postwar academic intellectuals to civil libertarianism and to an ethic of not imposing values, a convergence between these ideals would seem to have been inevitable. Nevertheless, it was neither immediate nor unimpeded. Basic difficulties were: (1) that the war also brought with it a thorough rehabilitation of the reputation of democracy (a reversal of the indictment by Lippmann and others); (2) that, originally, academics took the democratic process to be the paradigmatic expression of the nonimposition of values, the embodiment of “institutionalized relativism”; and (3) that the democratic process, however “open” and accommodating, closes with a democratic ethic of majority rule that is not at all the same thing as a liberal ethic of protection for individual rights. To a considerable extent, therefore, the discourse of individual rights originally ran orthogonal to discourse about the nonimposition of values. Indeed, at the time they were liable to be viewed as antagonistic, since the discourse of individual rights was associated with exactly the kind of natural law reasoning that the scientific naturalists meant to reject when they formulated the nonimposition ideal. Therefore, the defense of individual rights, if not simply done negatively—through a contrast with totalitarianism—was usually done by bootstrapping the right in question to the new image of democracy—just as Stone had foreshadowed in footnote four of Carolene Products. Free speech was the paradigmatic case. Regulations of speech were not initially struck down because they represented state departures from neutrality. Rather, they were struck down by and large on the Millean ground that a free contest of ideas, even false ideas, is the best path to the truth, and that, as Dewey among others added, this was particularly true in a democracy, in which the public at large is responsible for vital choices and needs access to the full range of opinions in its deliberations. In other 301

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words, they brought the dissenting positions of Holmes and Brandeis into the majority.1 This was not a stable majority, however. Many of the free speech decisions of the postwar Court were closely divided, with Black (almost always pushing for free speech protections) and Frankfurter (often, though not always, pushing for judicial deference to legislative regulations) ascendant by turns. The continuing problem was that for every argument on the side of free speech there was the counterargument that the Court should not substitute its own judgment for that of the legislature as to the existence of a “clear and present danger”—a widely accepted ground for waiving free speech protections—because this was a value question best left to legislatures. In short, concern for neutrality, until it was connected directly with civil liberties, channeled authority to the legislature, the bloom of the democratic process, rather than to the Court.

Religion and Neutrality Another approach to defending civil liberties, however, prepared the way for the neutrality ideal to attach itself directly to civil liberties. This was to set democracy over against the individual, playing up the totalitarian possibilities within democracy itself—or more moderately, invoking Tocquevillean warnings about the “tyranny of the majority.” This warning was not well received by Tocqueville’s original American readers, but it now found a ready audience.2 Here, religion was the paradigmatic case. Previously, I noted the sea change in the Court’s attitude toward the religion clauses, occurring over the course of the Jehovah’s Witness cases. There, we saw how heavily the specter of totalitarianism was weighing on the Court’s mind when it reversed itself in Barnett (1943). What helped put it there was that the Court’s 1940 ruling upholding the school expulsions had acted as a green light for a round of mob violence against many Witness families. The Court, and liberals in general, were revulsed.3 Apparently, American democracy had totalitarian tendencies of its own. In Cantwell v. Connecticut (1940), the Court had held for the first time that the Fourteenth Amendment incorporated both the establishment and the free exercise clauses of the Bill of Rights, thus rendering “the legislatures of the states as incompetent as Congress” to violate these rights. In Everson v. Board of Education of Ewing Township (1947), the Court strengthened its position, declaring for the first time that it would honor Jefferson’s “wall of separation between church and state.” But Everson did something more. In it, the Court found the word that summarized its new standard for government action in the area of religion.

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Writing for the Court, Black, the value-skeptic, laid it down that the First Amendment “requires the state to be a neutral in its relations with groups of religious believers and non-believers.” “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions.” This was a fairly radical interpretation. It didn’t say that a religion could be burdened or benefited by states only after a fair and open discussion among tolerant and accommodating legislators and the gamut of social actors behind them. This would have been the democratic, proceduralist answer. Nor did it say, in traditional civil libertarian terms, that no religion may be formally established, with church membership as a condition for receiving community privileges. Nor did it say that all religions should be benefited or burdened equally, which would have been the pluralist answer. It said no religion may be burdened or benefited by government, period. The outcome of government policy must be neutral. This was strong stuff, and for the first time, it connected a traditional civil liberty to the antitotalitarian ethic of not imposing values. Over the course of the Methodenstreit of the 1930s, large portions of the legal intelligentsia, including a number of the Supreme Court justices, accepted the notion that judges should not impose substantive values—the sin of Lochner and Hitler. The justices were now drawing the implication that no branch of government, at no level of government, had the right to impose substantive values—at least not in certain key areas. Thus Justice Jackson’s peroration in Barnett: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Neutrality, not natural law, was the key difference between democracy and totalitarianism. In insisting on this, the judges could claim they were not imposing values; they were just making sure others didn’t. To put this idea across, it helped that some of these “key areas,” like religion and speech, were mentioned in the Bill of Rights. Others, like privacy, were not, however. As we have already seen, it was the contrast with totalitarianism that really determined what areas were key. Subsequent church-state decisions would reveal disagreement on the Court as to the proper scope of the neutrality principle, but little disagreement about the importance of the principle itself. “Neutrality” would be the constitutional value invoked in decision after decision “disentangling”

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religion from the state in America, including decisions on school prayer, Bible reading, and moments of silence (Abingdon School District v. Schempp [1963], Lee v. Weisman [1992], and Wallace v. Jaffree [1985]); decisions on the eligibility of parochial schools for government subsidies of busing, books, and teachers’ salaries (Everson v. Board of Education of Ewing Township [1947], Board of Education v. Allen [1968], and Lemon v. Kurtzman [1971]); and decisions on the unconstitutionality of bans on the teaching of evolution (Epperson v. Arkansas [1968]). Even the dissents in these cases often made appeal to the principle of neutrality, as when Justice Potter Stewart dissented in Schempp that banning Bible reading in public schools was not “the realization of state neutrality, but rather . . . the establishment of a religion of secularism, or at the least . . . government support of the beliefs of those who think that religious exercises should be conducted only in private”; or when Black cautioned in Epperson that the teaching of evolution, where viewed as antireligious, is hardly neutral. Tellingly, these dissents have been taken up by the “religionist” camp in the culture wars, which now argues, in neutralist terms, that the Court’s disestablishment decisions have in fact established the religion of “secular humanism.”4

Neutralism and Expressive Individualism It appears that the Court preceded academia in connecting neutralism with civil libertarianism. Either way, it is certainly true that academics picked up the ball and ran with it, and their work both helped to justify the activities of the Court and influenced it. The result has been the familiar postwar project of defending civil libertarian values on the modernist grounds that values are rationally nonadjudicable. The air of paradox in this is relieved by drawing a sharp distinction between “rights” and “the good,” arguing that the former, unlike the latter, can be derived independent of controversial value claims.5 In other words, certain values— notably the civil libertarian rights set into sharp relief by the dark backdrop of totalitarianism—could be defended as what the ideal of state neutrality demands. And through the partial reading of classical liberal texts, this interpretation could be given a lengthy and respectable intellectual pedigree. The course of both judicial and academic treatment of civil liberties reveals another important side of the story: wherever the neutrality ideal walks, it attracts voluntaristic, or “expressive,” conceptions of the individual to its side. Lawrence Friedman, among others, has noted that around the time

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of World War II there was an abrupt reorientation from an individualism of self-control that internalizes external standards, toward an individualism of self-expression that confronts external standards as something alien. In our individualistic age the state, the legal system, and organized society in general thus seem more and more dedicated to one fundamental goal: to permit, foster, and protect the self, the person, the individual. A basic social creed justifies this aim: each person is unique, each person is or ought to be free, each one of us has or ought to have the right to create or build up a way of life for ourselves, and to do it through free, open, and untrammeled choice.6 The voluntarist ideal is not new, of course. It has roots that run as far back as the spiritualist movements of the radical Reformation, with more immediate roots in European modernism.7 What is noteworthy is that it should have so suddenly flooded the American intellectual mainstream, which had so long resisted it. In assigning a cause, Friedman himself fingers the “technological revolutions” in transportation and communications of the past century that have turned us into a “society of strangers.”8 But he leaves unclear how such an abrupt reorientation is to be mapped onto a one-hundred-year-long technological “revolution.” Others have suggested it is an “affluence effect”—a natural outgrowth of greatly expanded consumer choice, or perhaps an ethic consciously cultivated to sustain an economy of mass consumption.9 While something may be said for each of these hypotheses, my own suspicion is that, at least among intellectuals, close investigation of the inroads of the expressive ideal will show it closely tracking the spread of the new ethic of not imposing values. If values are subjective, then (the reasoning runs) the bequest of values from one person to another is really an act of naked power. It is totalitarian. The ideal of state neutrality promises that at least the state won’t engage in such acts of coercion. But this still leaves open the possibility of value coercion within “civil society.” To be saved from state coercion only to be at the mercy of social coercion is to leap out of the frying pan of Plato’s Republic into the fire of Rousseau’s Second Discourse. The way to avoid the embarrassment is to wave away the societal factor and simply posit that values well up from within the individual herself. We are windowless monads. We are expressive individuals. Thus it may not be too much to suggest that the neutrality ideal is primarily responsible for mobilizing and disseminating modernist, expressivist conceptions of the individual in the postwar period, eclipsing fifty years of

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sophisticated (and politically progressive) American sociological discourse on the self as socially constituted.10 Friedman does a masterful job of showing how a wide variety of legal phenomena, including many that seem to buck the trend toward expressive individualism, such as welfare legislation, safety regulation, and the politics of identity groups, can be seen as developments within this trend. But the development is most clear in the case of civil liberties jurisprudence. In the disestablishment cases above, for example, the Court presented itself not as anti-Catholic, but as protecting the religious autonomy of the individual. The philosophy governing the public school, Jackson wrote in Everson, “is that after the individual has been instructed in worldly wisdom he will be better suited to choose his religion.” But Jackson didn’t shy away from adding that “our public school, if not a product of Protestantism, at least is more consistent with it than with the Catholic culture and scheme of values.”11

Free Speech Religion cases were the first in which the neutrality ideal and its expressivist corollary radicalized a much older liberal freedom; other lines followed, beginning with free speech. Frankfurter was one of the last great spokesmen for the view that, in judging when to extend protection to speech, the social value of the speech in question must be placed at the center of analysis. As Silverstein summarizes his position: The progressive tradition of which Frankfurter was a part envisioned progress defined by commonly held goals. The task of leadership was to direct society to the attainment of these goals. Progress could not be assured through the unsupervised clash of all views; some ideas were more important than others. Thus the task of leadership was to ensure that the appropriate views were presented in the appropriate manner. It was naive to believe that all speech was of the same intrinsic worth, and furthermore, speech which in some circumstances would be beneficial (or at least harmless) in other circumstances might be worthless (or at worst dangerous). In the last analysis, to judges fell the statesmanlike task of weighing and balancing. Under Frankfurter’s view of the polity, each free speech case presented a discrete instance to be carefully measured against the needs of a progressive state. Order and freedom could be ensured only by a judiciary performing such a task freed from the constraints of dogma and absolutes.12

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But his was a losing battle. The old debate over whether these judgments were to be made by the judicial statesman, or were best left to democratic legislatures except in flagrant cases, became moot with the ascendance of the neutralist interpretation. The protection of speech for the sake of truth and progress becomes the protection of “freedom of expression” for its own sake. Sandel has summarized the evolved position of the Court: Although government may impose “content-neutral” restriction on the time, place, and manner of speech in public places, such regulations “may not be affected by sympathy or hostility for the view being expressed.” The Supreme Court has repeatedly ruled that the First Amendment “bars the state from imposing on its citizens an authoritative vision of the truth” or a preferred conception of the good life. “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”13 A fairly egregious case from 1992 evidences just how far the civil liberties revolution, which in so many of its parts was originally directed against the United States’ Hitleresque racial caste system, has been carried beyond its original object by the neutralist interpretation: When the city of St. Paul, Minnesota, sought to convict a youth for burning a cross on a black family’s lawn, the Court struck down St. Paul’s ordinance against bias-motivated crimes on the grounds that it was not neutral. The ordinance prohibited cross-burnings and other symbols and graffiti targeting persons “on the basis of race, color, creed, religion, or gender.” Since the law proscribed only those symbols “that communicate message of racial, gender, or religious intolerance,” it amounted to illegitimate content-based discrimination. “Selectivity of this sort,” Justice Scalia wrote for the Court, “creates the possibility that the city is seeking to handicap the expression of particular ideas,” a purpose the city readily acknowledged.14 Similarly, a community in Skokie, Illinois, was prevented by the courts from prohibiting a march-through by a group of neo-Nazis, who chose the community for its large population of Jewish Holocaust survivors. Its ordinances against hate groups were struck down as violating governmental neutrality.15 The standard liberal defense of such extreme cases is to argue that without an absolute right to march and express views repugnant to the local community, Martin Luther King Jr. could never have led his many protest

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marches through the segregated communities of the South. Sandel gives the appropriate rejoinder: “The answer may be simpler than liberal political theory permits: the Nazis promote genocide and hate, while Martin Luther King sought civil rights for blacks. The difference consists in the content of the speech, in the nature of the cause.”16 Indeed, it was just such a substantive distinction between the National Association for the Advancement of Colored People (NAACP) and the KKK that the Court had earlier drawn in NAACP v. Alabama (1958), establishing the NAACP’s right to organize in the state.

Obscenity Although the Court has significantly eroded the capacity of communities to enforce obscenity regulations, it has not completely dismantled it (despite a brief period in which it looked like it would).17 As Sandel notes, however, “the Court’s arguments for upholding obscenity laws subtly changed from the 1950s to the 1970s, and changed in a way that came to acknowledge the principle of government neutrality. In Roth v. United States (1957), the Court based its decision on traditional moral grounds; obscenity was ‘utterly without redeeming social importance,’ and so wholly outside constitutional protection.” In contrast, in the 1970s, in a line of cases dealing with adult (X-rated) theaters, the Court upheld local ordinances against them, “but only after attributing to them a purpose that did not involve a substantive moral judgment against obscenity as such. Consistent with the liberal commitment to neutrality, the Court strained, sometimes implausibly, to winnow out the reasons that expressed moral condemnation.”18 The reasons that remained were primarily those of preventing the putative “secondary effects” of obscenity, such as public disturbance, criminality, and neighborhood deterioration, which it was believed could be judged harmful without passing moral judgment on their cause. The liberal distinction between what is “harmful” and what is “immoral” leans heavily on a transvaluation of our received Gnostic-Christian dichotomy of body versus spirit, or physical versus moral, and therefore is itself hardly neutral (that is, hardly free of controversial cultural and religiouscosmological assumptions), or very true to human experience. Physical blows obviously buffet us this way and that, but in terms of our personality, our identity, we are imagined to be morally self-unfolding. What this draws our attention away from is the importance of environmental influences on the development of the person, on the process of want- and character-

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formation. The Pilgrims migrated to the New World, after escaping from England into the Netherlands, to protect their children from what they viewed as the corrupting influence of Dutch thoughtways and mores. But we seem to have arrived at a point today where Americans have lost much of their ability to collectively shape their moral and cultural environment, whether on the local, state, or national level, in part because the Court, under the influence of the neutrality ideal, gives a broad interpretation to the free speech clause. This represents a dramatic shift of authority away from democratic bodies to private and commercial groups in shaping the moral and cultural environment we all inhabit, and the kind of people we will become. Even with regard to child pornography—perhaps the most disturbing of obscene material—the Court has avoided judging content. Bans on the production and distribution of child pornography have been upheld, not because of the content of the images, but because minors are involved in their production.19 This has left a loophole for the computer generation, however. When Congress tried to extend its ban to cover computergenerated images of minors engaging in sex, it was struck down, since no actual minors were involved.20 Meanwhile, the efforts of Congress to protect minors from viewing adult pornography online have been repeatedly rebuffed by the Court, on the grounds that the proposed means for excluding minors from porn sites—mandatory use of credit card numbers, for example—unreasonably burdens the free speech rights of porn purveyors, and perhaps the privacy rights of adult viewers.21

Privacy The constitutional right to privacy is where the affinity between neutralism and voluntaristic individualism is most clear. As Sandel notes, the Court since World War II has transformed the traditional understanding of privacy rights: “Where the contemporary right of privacy is the right to engage in certain conduct without government restraint, the traditional version is the right to keep certain personal facts from public view.”22 Significantly, this expanded right, recognized in the course of the Court’s antitotalitarianism campaign, did not initially receive a neutralist interpretation. The early contraception and abortion cases, while finding an unenumerated and previously unrecognized right to privacy, connected this right to the value of the social institution of marriage and the intimacies of marriage, which, it was argued, could be damaged by the kind of state surveillance

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regimes that would be necessary to enforce the laws at issue. But beginning in the 1970s, the Court began to argue, in a knowing departure from its interpretation of privacy in the previous decade, that what was really being granted constitutional protection was the free choice of the individual herself, and not the values nurtured by the institution, toward which the Court should be neutral. The right to privacy, wrote Justice Douglas in a 1973 abortion case, protects “the autonomous control over the development and expression of one’s intellect, interests, tastes, and personality,” and “freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.”23 The notion of privacy as autonomy found perhaps its fullest expression in a 1992 abortion rights opinion authored jointly by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter. Privacy rights protect “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” The justices went on to draw an explicit connection between privacy as autonomy and the voluntarist conception of the person: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”24 Even aside from the epistemological and sociological naiveté behind this notion of self-definition, this is a remarkable doctrine to have taken hold, given that realist arguments analogous to those that undermined the Lochnerian notion of a government-free market undermine the notion of a government-free private sphere as well. For example, government action is present in countless ways in the background of the decision of whether to have a child: tax policy, child-care subsidies (or the lack thereof ), maternal work leave, down to all manner of policies and regulations that affect the general quality of life and “the kind of world” one would be bringing a child into. In other words, a thick web of government-imposed benefits and burdens surrounds the most basic, the most “private” family choices. In the postrealist, post-New Deal world, government choice is acknowledged to be pervasive. The alternative is not between a regulated and an unregulated family sphere, but different regimes of regulation. The Court has chosen to selectively ignore this fact. Family law is one area in which it ignores it. Having reinterpreted the institution of marriage

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as a relationship between two autonomous individuals, rather than as an institution serving transindividual values, the Court proceeds to treat procreative decisions as private, averting its eyes from myriad governmental decisions that influence them. The Court’s protection of these procreative decisions is thus presented as a case of respect for the free value choices of individuals, such that a veneer of governmental neutrality in the area of family law is attained.25 Finally, it should be noted that the force of language is such that these reinterpretations have had other consequences beyond their original objects. For example, reinterpreting marriage as a relationship between two autonomous individuals, free to make their own value choices, has not only provided protection for procreative decisions. It has also precipitated, or at least contributed to, a “silent revolution” toward no-fault divorce and a transformation of the legal norms governing alimony, marital property, child custody, and child support. For instance, “alimony payments and property settlements are now based on financial need, not marital behavior. ‘Under the old law the adulterous husband or wife typically had to pay for his or her infidelity with a disadvantageous property or alimony award. Today, in contrast, there are no penalties for adultery and no rewards for fidelity.’ Instead of concerning themselves with guilt or innocence, the courts now employ such ‘nonjudgmental’ criteria as the economic needs and resources of the parties.”26

Neutrality and the Culture Wars To understand public reaction to the Court’s new civil liberties jurisprudence, it must be remembered that, in all these cases, the Court was not reigning in a newly expanded federal government. Rather, it was itself part of the federal government, striking down the traditional moral “police powers” of state and local governments. Furthermore, while the early civil liberties cases revived eighteenth-century liberal ideals and were effectively used to increase protections for blacks in the South, a later wave of cases radicalized these ideals with a neutralist reinterpretation, adding nothing to the cause of civil rights, but substantially undermining the efforts of democratically elected state and local government to regulate, wisely or unwisely, their local moral environments. It should not surprise, then, that it is precisely around issues addressed by the postwar Court—issues of family norms and moral environments— that the culture wars have swirled. Briefly put, “national class” elites, in-

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cluding justices of the federal bench, began to institutionalize the antitotalitarian ethic of not imposing values, while “local class elites,” convinced that the antidote to both fascism and communism was God’s higher law, recoiled in horror.27 The initial response of local-class America—especially in the South, which bore the brunt of the Supreme Court’s assault, but elsewhere as well—was to weave, and retreat into, a separate social fabric, starting with the overnight organization of hundreds of private segregationist and Bible academies, and continuing with separate colleges, separate radio and television stations, separate summer camps, separate music groups, separate presses, separate popular literature, and so forth.28 Especially important was the growth of independent churches—a legacy from the split between modernist and fundamentalist churches at the beginning of the century.29 Protestant evangelicalism in particular began to experience growth and became the penumbra of an alternative value system—a system defined against that carried by the Supreme Court and other liberal elites—with evangelical churches serving as a rallying point for a range of cultural and social grievances. Although its reach would eventually be national, at its roots this was an evangelicalism of the South and small-town Midwest, colored by this culture, and exhibiting some of the dogmatism characteristic of self-consciously “reactionary” movements. This made it very different from nineteenth-century evangelicalism with its urban, New England roots and open-minded progressive optimism. This older, nineteenth-century evangelicalism had been an ally in the progressive movement. The new evangelicalism, in contrast, readily fell into the orbit of the conservative movement. This is the other half of the story of the culture wars, and the ideological key to them. The culture wars reflect a local class backlash, but not simply a backlash, for their grievances are not simply traditional. It is from conservative intellectuals, especially Catholic ones, that they learned how to interpret the actions of the Court and other national liberals, the nature of the threat they posed, and the grievances to prioritize. For example, it was the Court’s decisions on desegregation and school prayer that precipitated the backlash. That these were soon eclipsed by the fight against abortion, which never before had been a noteworthy Protestant cause, is one sign of the influence of Catholic intellectuals on Protestant evangelicals. More significant than this influence on their priorities is the interpretive frame that Catholic intellectuals bequeathed them. It was precisely the interpretive frame they worked up in their late-1930s debate with the scientific naturalists over the causes of totalitarianism. Seen through this lens,

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the entire range of contemporary liberal “causes”—abortion rights, gay marriage, evolution, the ban on school prayer, and so on—are so many spinoffs from a single liberal agenda of “secular humanism,” understood as an anti-Christian, morally relativist philosophy. As bowdlerized by Tim LaHaye, coauthor of the best-selling apocalyptic Left Behind novels, “the five basic tenets of humanism” are “atheism,” “evolution,” “amorality,” “autonomous man,” and “one world socialism,” or communism.30 In a word, it is secularism and relativism leading to totalitarianism. Liberal activists return fire with ammunition from the same 1930s debate. On every front, James Davison Hunter notes, liberals accuse the “Christian Right” of “moral absolutism,” portray their activities as attempts to “impose . . . values and beliefs upon others,” and denounce them as totalitarian. “According to their respective literature, each side has wittingly or unwittingly spawned a political agenda that is antidemocratic and even totalitarian in its thrust.”31 When a mayor removes an obscene painting from a museum, it is denounced by the Left as fascist, an instance of moral absolutism. When a mayor removes a nativity scene from public property, it too is denounced as fascist, but this time by the Right, as a sign of moral relativism. The seemingly obscure quarrel between “scientific naturalists” and “ethical rationalists” over social scientific methodology and the origins of totalitarianism has ballooned into the major cultural and political division in the country. It provides the basic polemical terms of both modern liberalism and modern conservatism, both elite and popular. The Southern evangelicals were mobilized politically for the first time when the Republican Party, under the influence of the conservative movement, began courting them as part of its “Southern strategy.” It is on the Republican Party that many evangelicals and local-class Americans have pinned their hopes for cultural redress. As their strength has grown, evangelicals have even attempted to use the party to capture the national center, beginning with the surprisingly strong run of Pat Robertson— founder of the 700 Club, the Christian Broadcasting Network, and Regent University—for the Republican presidential nomination, and continuing to the present day. The fit of conservative evangelicals with the Republican Party, while far from seamless, has been smoothed by the fact that today’s evangelicals are (often literally) the grandchildren of the “fundamentalists” who split from liberal Protestantism and the Social Gospel. While this split was primarily over theology and the means of salvation, it brought with it a rejection by conservative evangelicals of the Social Gospel’s activism on behalf of

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economic and social justice, even though such activism had been a part of their own ministry in the late nineteenth century.32 Although there are today stirrings of a new economic conscience among conservative evangelicals,33 they have for long been much more strongly attached than liberal Protestants to private property rights, low taxes, and the free market system.34 They have thus largely condoned the business conservatism of the Republican Party and its agenda for a “neoliberal” (market-corporate) reconstruction of the economy, even when this agenda works against their own economic interests. On the obverse of the political coin, many evangelicals have been convinced by conservative intellectuals that the Democratic Party is the party of moral relativism and secularism. Of course, this hardly describes most Democratic politicians and voters, but with the Democratic Party as the party of postwar liberalism, and with liberalism having been reinterpreted by academics as a neutral, or “morally minimalist,” governmental system, there is enough fodder to make the charge stick. This flavor of evangelicalism is new on the national scene, and is part of the general “Southernization” of the United States. Ironically, while its growth and activism is partly due to the efforts of neutralist liberals to exclude religion from public life, this same growth and activism has only reinforced the belief of neutralist liberals that Christianity is in principle a reactionary force and should be kept out of politics, even though no progressive politics has ever succeeded in the United States without the aid of a vibrant Christian Left. At least for the time being, we appear trapped in a cycle of polarization. The question is if we might move beyond this polarization were we to revive what, in the “Introduction,” I refer to as the “second wave” of liberal theory—the “sociological” liberalism of Tocqueville, Weber, and Croly. Like neutralist liberalism, it does not appeal to the transcendent as the ground of liberal institutionalism, but it nevertheless recognizes the importance of morality and virtue in sustaining liberalism, and it recognizes the contribution that belief in the transcendent can make to these. Adoption of this perspective would not resolve all the issues of the culture wars. However, with each side no longer seeing in the other the totalitarian enemy, the cultural war might become a cultural conversation.

Conclusion: The Dysfunctions of Antitotalitarian Liberalism

Liberals were right to oppose totalitarianism with all their might. They were wrong to let their opposition transform American liberalism, in thought if not always in deed, into totalitarianism’s photographic negative. With regard to the American liberal tradition, the encounter with totalitarianism did three things. First, it brought the Progressive era to a close. From the Civil War through to the Great Depression, progressives had increasingly lost faith in the ability of the mechanisms of popular government to institute needed reforms. And indeed, democracy’s record on progressive causes was poor. So progressives became more and more convinced of the need for elite guidance and social control, through parastate uplift and expert planning. The encounter with totalitarianism changed all this. Confronted with the terrifying regimes of Germany and the Soviet Union, intellectuals rallied to the defense of democracy and the American way of life. But this did not mean that democracy suddenly became adequate to the reform agenda of yesteryear. Rather, it signified a significant curtailment of the reform aspirations of the liberal and progressive mainstream. It signified also a widespread disavowal of the notion of paternalistic elite guidance. “Social control” became anathema, at least outside of national security circles, and with it went the progressive aspiration to elevate human character through social reconstruction. Second, the encounter with totalitarianism revived the very institutional ideals that progressives had either ignored or positively combated—the ideals of eighteenth-century liberalism, with its emphasis on private property, freedom of contract, civil liberties, constitutionalism, limited government, and legislative democracy. After all, what better way to express one’s opposition to the totalitarian state than to harken back to liberalism in its classical mode as a language of resistance of state power? In the late 1930s and 1940s, treatises on the meaning of freedom came pouring from the 315

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presses, almost all of them finding new virtues in the idea of “negative liberty.” Disparaging remarks about individualism were washed away, and tributes to the dignity of the individual popped up like mushrooms after a rain. America the democracy became America the “free society.” Daniel Rodgers has noted how this eighteenth-century revival influenced the priorities of the occupation authority in West Germany after the war: On West Germany, as if on a tabula rasa, the American occupational government wrote its eighteenth-century notion of checked and balanced powers: A federal governmental structure, an independent judiciary, a bicameral central government of strictly limited powers, and a written constitution. In social legislation the American authorities were much less interested.1 What is striking is how little things have changed. American discussion of the reconstruction of foreign nations is devoted almost wholly to issues of constitutionalism, human rights, free enterprise, and democracy. Yet, given that many of the social pathologies in the world are attributable to failed or corrupted states, the absence of a comparable discourse on state-building and state-reform is striking. Third, the encounter with totalitarianism did more than revive eighteenthcentury ideals. In general, it radicalized them. Eighteenth-century theorists had conceived of liberal values as having a transcendent ground—a grounding in “Nature and Nature’s God.” Postwar liberalism, in contrast, was posttranscendent. It was even antitranscendent. The notion of transcendent values was of a piece with the “moral absolutism” that they believed was the antithesis of, and greatest threat to, liberal democracy.2 Liberal democracy, it was now argued by many intellectuals, was born of secularism and skepticism about values. Skepticism about values is what sustained it, and it needed no firmer “grounding” than that. Moral minimalism was the great antidote to totalitarianism. Allowing for a degree of oversimplification, one might well gloss the postwar liberal intellectual project as that of reviving eighteenth-century liberal theory and recasting it in relativist and neutralist terms. In economic theory, laissez-faire was revived, at least in some circles. But in place of the old arguments about the sacrality of private property rights was the new argument that free markets, unlike governments, do not impose values on people. On this point, postwar Keynesianism was no different. Keynesians favored shifting income downward and extending the social safety net. But their arguments were purely technical. Doing so would

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provide the level of demand necessary to sustain production and the economic stabilizers necessary to prevent economic depressions. Other than that, there was no value judgment being made as to the justice of the existing distribution of income, and certainly no judgment being passed on the structural features of the economic system itself. As President Kennedy put it in his 1962 Yale Commencement speech, in words drafted by Arthur Schlesinger Jr., “What is at stake in our economic decisions today is not some grand warfare of rival ideologies . . . but the practical management of a modern economy . . . for which technical answers—not political answers— must be provided.”3 The contrast with Franklin Roosevelt’s Second Inaugural address, suffused with discussion of “economic morality,” could hardly be more striking. Those who wonder why economic issues ceased to be viewed as moral or “values” issues need seek no further. In political theory, Madison was revived. But he wouldn’t have recognized himself. Madison supported the multiplication of factions on the ground that they would check one another, allowing statesmen to rise above them and pursue the public good. Now political theorists dismissed the notion of the public good and argued that the pushing and pulling of interest groups was itself the means to determine policy. The state itself should be neutral, merely placing its imprimatur on the upshot of the interest group struggle. This was the message of pluralist theory, and it accelerated and legitimated the growth of interest group politics and the broker state. “Agency capture” was pluralist policy. Somewhat later, social contract theory was revived. However, in the new version, one of the things that people in the state of nature, or “original position,” are evidently most worried about is that someone might impose values on them, so a constitutional system is instituted that favors no one version of the good life over any other. In the law, civil liberties were revived. Now, however, instead of being understood as giving protection to higher values, they were interpreted as providing protection against the values of others, and in particular, as marking off regions where the state must be neutral. Thus, for example, the right of free speech, traditionally justified as aiding the advancement of truth, mutated into a right of free expression. Regulations on speech must be content-neutral, indifferent to hate and obscenity. The revival of civil liberties brought great benefits, especially in service to African American civil rights. But their subsequent neutralist reinterpretation did nothing for the cause of civil rights, and one does wonder if it has been for the better. Two areas in which liberals still grant the state wide jurisdiction are

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health and safety. Antismoking laws, seat-belt laws, and suchlike are fair game. This is consistent with the traditional “police power” of the states to protect—in the classic enumeration used by the courts on through the 1930s—“public health, safety, and morals,” but now without the authority over morals. To put this in constitutional terms, we might say that, whereas nineteenth-century constitutionalism protected “virtuous” republics at the state and local level within a “neutral” federal structure, postwar constitutionalism has pushed neutrality all the way down. Loosely speaking, this represents a return to the medieval division of labor, in which the crown attends to the body and the church to the soul. But now there is no (established) church. The great historical movement since the eleventh century, in which civil government took on more and more of the moral and cultural functions once undertaken by the church, is reversed, if not completely ended. In sum, reaction against totalitarianism led, stepwise, to the reprise of classical liberal idioms and their transposition into a much more libertarian key. The reprise of classical liberal idioms meant a retreat from thoughtways supportive of the state to thought-ways forged in resistance to the state. The neutralist reinterpretation of these idioms meant the loss of moral vocabularies capable of bounding the conduct of individuals for the sake of common goods and purposes. Living as we do in what Croly called the “age of organization”—an age of corporate forms and organized groups— these steps move us away from a clear view of our world and reduce our ability to coherently engage it. At least, that is what I will now argue.

Antistatism in the Age of Organization In certain eras, on certain issues, the Left and the Right meet. This is true today on the issue of the state. The Left sees the hope of democracy, of true individuality, on the small scale—in community organizing, for example, and in bringing power back to the people, to the most local level, and even to the level of the “empowered” individual. These Left sentiments are most closely associated with the New Left. But despite their official “antiantitotalitarianism,” the New Left, and the counterculture that accompanied it, were of a piece with the antitotalitarian, antistatist trend. In fact, they deepened it, turning the antitotalitarian rhetoric of the Cold War liberals against the institutions the Cold War liberals represented and defended. In the words of Theodore Roszak, its sympathetic expositor, the counterculture was a revolt against the “technocratic totalitarianism” of postwar

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liberalism—the “regime of experts” in think tanks and government that, in the name of neutral science, “assume[s] authoritative influence over even the most seemingly personal aspects of life: sexual behavior, child-rearing, mental health, recreation, etc.,” “modernizing, up-dating, rationalizing, planning” so as to achieve an “organizational integration” of industrial society.4 What today’s Left believes in is, to adapt a title of a popular recent book, “the politics of small things.” And the Right feels the same way. The central state is a threat to democracy, to the individual, to the economy. Privatization of the public economy, deregulation of the private economy, and a “new federalism” that, among other things, shifts social programs to the states and to local religious and charitable organizations, are the order of the day. The utopias of the Left and Right are hardly the same, but their prescriptions tend in the same direction. Centralization is the problem. Decentralization is the answer. There is a lot of history behind this development, but much of this history began with the reaction against totalitarianism. In the 1930s, the communist Left and fascist Right were held to meet in the form of the totalitarian state. In perfect counterpoint, the antifascist Left and anticommunist Right met in opposition to the strong administrative state. And their children meet there, too. We are apt to forget, but the turn away from the state represents something of a historical reversal for the Right, which from Hamilton to Hoover held that both prosperity and national security require the state to foster and protect, through tariffs, internal improvements, and other promotional policies, a robust manufacturing sector. The Right has maintained its solicitude for national security. But the connection between national security and industrial policy now eludes the conservative imagination, as conservatives preside over the unimpeded transfer of the U.S. manufacturing base to, of all places, China. Even more so does the turn away from the state represent a reversal for the Left. In the late nineteenth century, a combination of new technology, new organizational forms, and a permissive legal environment generated an interconnected national economy bestrode by industrial and financial firms of national reach. Filled with promise, filled with problems, it required a national response of a sort that the locally oriented patronage parties of the nineteenth century were constitutionally incapable of providing. Step by quickening step, reforming intellectuals embraced the idea of an administrative state as a key tool for managing industrial capitalism. The dilemmas of the national, technological economy have not disap-

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peared, even as the hold of the state on the liberal imagination has evaporated. As the scale of the integrated economy expands from national to global, with the reach of industrial and financial firms expanding accordingly, one may well wonder how long the retreat of the Left to the politics of small things can possibly last. In such times, intellectuals of the Progressive era would have channeled their creativity and political energy into theorizing and building new international governance bodies, or at least transforming current ones, to engage the global economic order—not just to restrain it, but to harness it for greater ends. Today’s intellectual Left channels its creativity and political energy into protests against the World Trade Organization. The institutional imagination of the Progressive era seems to have fallen into eclipse.

Neutrality in the Age of Organization Less well recognized, there has been a similar meeting of Left and Right on the issue of culture. This is most clearly seen in the culture wars. To those on the Left, the Right is the purveyor of a religious totalitarianism, seeking to use the instrumentality of the state to impose its cosmological views on everyone. To those on the Right, the Left is the purveyor of a no-less dangerous “secular humanist” totalitarianism, and has for decades been using the state to propagate it. What both seem to agree on is that the central state should be neutral on culture and values. The Left wants neutrality pushed down to the local level so as to protect dissenting individuals; the Right by and large wants to revive the nineteenth-century regime, with federal neutrality toward the substantive practices of state and local majorities. One wants a neutral liberal nationalism, the other a neutral federalism. Progressives rejected both of these approaches. Like postwar neutralist liberals, progressives sought to replace the strict federalism of Jacksonian democracy with a liberal nationalism, replacing the “state of courts and parties” that sustained federalism with nationally oriented governance institutions. However, like Whigs and Republicans before them, progressives pursued a substantive liberal nationalism, not a neutral liberal nationalism. They sought to replace the language of liberal individualism, in which liberty is seen as a matter of protecting “equal rights,” with a language of national moral purpose, of national liberal purpose. This was not because progressives had no concern for equality. To the contrary, it was because, in the age of organization, where corporations are treated as legal individuals, the doctrine of equal rights for individuals meant domination by cor-

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porations—and unprecendented inequality—because they are the biggest individuals around. A doctrine of national moral purpose, in contrast, gave one a basis for regulating the new economy—promoting it as well as restraining it—under the aegis of this purpose. So instead of equal rights, progressives spoke of building the Kingdom of God, or more modestly, of redeeming the “promise of American life,” defined as material and moral improvement for all.5 Progressive era institutions—universities, labor unions, national nonpartisan media, business schools, professional associations, consumer groups and public interest groups, and the independent commissions and bureaucratic bodies of the administrative state—were erected on just such doctrines. The encounter with totalitarianism scuttled the progressives’ most ambitious ideas for state-building. Nevertheless, the remaining progressive institutions were carried into the postwar period, becoming the key institutions of the “liberal establishment.” And this is where incoherence enters, for the encounter with totalitarianism also scuttled the language of national moral purpose that had legitimated these institutions, and replaced it with a revamped language of liberal individualism and equal rights. In other words, we postwar Americans have inherited a raft of progressive institutions without the progressive doctrines that gave them sense. Indeed, these same progressive institutions that were founded in rejection of the language of liberal individualism and equal rights have become the primary carriers of this revamped language of liberal individualism and equal rights. And this places them in a precarious position. As Eisenach notes, these specialized, bureaucratic, purposive institutions “are hardly designed to withstand strict scrutiny from within a discourse they initially rejected. The only way to deflect the charge of hypocrisy, of not living up to one’s own proclaimed values of neutrality and equal rights, is to proclaim some higher value than equal individual (and now group) rights—for example, economic necessity, national defense, common sense. Contemporary liberals have been loath to do this.”6 The institutions of the liberal establishment, along with their liberalism of the “vital center,” have indeed come under withering attack from both Left and Right for exclusion and bias—for failing to live up to their own professed neutrality.7 Defending them would require articulating and defending the purposes they serve, the goods they advance. But liberals have been handicapped in this by their dread of imposing values, and by their conviction that neutrality is the proper aim of liberal governance. So liberals embark on the quixotic venture of trying to make these institutions

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more neutral. In the mental universe of postwar liberals, this means either democratizing, marketizing, or proceduralizing them. But these strategies, in addition to undermining the effectiveness of these institutions as carriers of national, liberal purpose, also fail to attain true neutrality. Decreasing the independence and discretion of government bureaucracies leads only to the formulation of policies, no less value-laden, by organized interest groups that reflect the interests of the public very unevenly and incompletely. Shifting decisions to the neutral “free market” merely generates outcomes reflecting the uneven distribution of wealth and effective desire. Using courts to police “neutral procedure” only heightens the discretion of judges to enforce values of their own. We have reached a point where our reigning intellectual categories and governance strategies simply fall down, unable to grasp the society we live in or meet the challenges we face. All of this raises questions. Might not liberal institutionalism need a cultural program, a program of liberal goods and purposes? Is Western liberalism really a neutral social form? Is the liberal individual a natural entity, or a socialized and acculturated one?

Reconstructing Liberal Theory The leading schools of liberal thought today, despite their many disagreements, work from a common premise—that the individual is an unsocialized being, a monad, something that exists prior to and independent of others. For example, what I call “economistic liberals”—including neoclassical economists, rational choice theorists, public choice theorists, and all those who see human life in terms of utility maximization—take the individual as a biological datum, with values, or “preferences,” that are given (and thus impervious to the pull of the social environment). Voluntarist liberals— including Kantians, Rawlsians, and the many theorists of state neutrality— take the individual as a free will that chooses its own values (and is thus superior to the pull of the social environment). Emancipationist or expressivist liberals—including Thoreauvians, aesthetic modernists, counterculturalists, and all those who seek to live “authentically”—take the individual as a pure spirit with values that are all too easily obscured by the cake of convention (and thus seek to shake the pull of the social environment). Individuals, in the worlds imaginatively projected by these theories, are (ideally) not shaped by the people and institutions among which they move. Their choices may provide the motor of history, but they themselves remain untouched by it. They are in the world, but not of it.

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The appeal of these schools is a natural consequence of the turn toward neutralism; the monodological individualism that they espouse is what remains after theory has drained institutions of their formative role. What all these schools leave out of account is precisely what is most distinctive about the human condition—that we are by nature incomplete beings, to be completed through proper rearing. This is the conclusion of ancient philosophy, modern social science, and mothers everywhere. Man, in contrast to most other animals, confronts “gaps” between his general propensities and their concrete specifications, leaving him, in Clifford Geertz’s suggestive phrase, “programmed for culture.” Seen in this light, much of social life either purposefully or coincidentally effects the “filling in” of these gaps with the stuff of culture—meanings, maxims, rules, routines, practical techniques, classification systems, cultivated tastes, norms, and ideals—in an ongoing process of socialization and acculturation in which authority, trust, imitation, ethical deliberation, and informed judgment (to name but a few of the more neglected components of social life) play indispensable parts.8 This holds a fortiori for a “free” man. What we know as the “liberal individual,” with her characteristic personality structure and value commitments, is neither a child of nature nor the spontaneous expression of a free will, but is, to put it most provocatively, an emergent property of a particular institutional and cultural order. This is not to say that the liberal individual is a “radically situated” subject without any stable identity independent of the flux of social circumstance; certain modes of detachment are a defining feature of the liberal personality. But neither is the liberal personality a product of an absolute social distancing, with the noumenal self, or the unpossessed subject of possession, or some other expression of abstract cosmopolitanism, as its regulative principle. Rather, the liberal individual stands at the end of a process of social and cultural distancing that occurs along certain lines, coupled with social and cultural attachment along other lines.9 Call it “situated freedom.” This has sweeping implications for liberal theory and practice. Given the massive fact of the heteronomy of individuals, it is surely a mistake to start from the assumption that individuals in a society are free and equal and then move to an account of what kind of institutions they would agree on—an approach common to all the theories described above. What we know of as the freedom and equality of individuals is a historical outcome, not a starting point. It is supported by a complex interweaving of institutions and cultural patterns, and we would do well to understand these before we move to reconstruct society along the lines variously suggested

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by the assumption that humans are free and equal by nature. In other words, we need a liberal theory that, at the very least, attends to the nonneutral purpose of fostering liberal selves and the conditions necessary for sustaining liberal selves. This would be a liberal theory that recognizes the individual’s heteronomy and yet values that which lies behind talk of autonomy—the adult individual’s capacity, under particular moral and institutional conditions, to direct the preponderance of his affairs free from immediate external command. Like Croly, we live in the age of organization. But with the scale of organization expanding from national to international, we need a more robust, more varied institutional program than even progressivism offered, to preserve the conditions for the flourishing of liberal selves. We also live in an increasingly interconnected, hybridized world. Whereas Weber worked to understand the cultural and structural preconditions for the emergence of liberal institutionalism in the West, we must additionally work to understand the preconditions for, and consequences of, the diffusion of liberal institutional forms to non-Western settings. Our work must be historical, comparative, and cultural. This leads back to a thought from the “Introduction”: that it is time to step out from under the shadow of totalitarianism, jettison the utopia of liberal neutrality, and reclaim the general approach of nineteenth- and early twentieth-century “sociological” liberalism—the tradition of the American Whigs, Tocqueville, Weber, and Croly. But it is also time to push beyond its specific achievements.

Notes Index

Notes

Introduction 1. I shall throughout use the term “liberal” in its classic, European sense, in which it is associated with the rule of law and a menu of civil liberties, including free speech, religious toleration, due process, and private property rights. On this definition, virtually all Americans fall within the liberal fold. Also, I shall adopt the deeply rooted convention of using “American” to describe citizens of the United States. It will be understood that there are other peoples inhabiting the Americas. 2. On the origins and early history of the totalitarian concept, see Less Adler and Thomas Paterson, “Red Fascism: The Merger of Nazi Germany and Soviet Russia in the American Image of Totalitarianism, 1930’s–1950’s,” American Historical Review (1970); John P. Diggins, Mussolini and Fascism: The View from America (Princeton, 1972); and Thomas E. Lifka, The Concept “Totalitarianism” and American Foreign Policy, 1933–1949, 2 vols. (New York, 1988), vol. 1. The brief alliance between the democracies of Western Europe and the Soviet Union for the defeat of Nazi Germany and fascist Japan brought a temporary waning of totalitarianism as a defining political category. But the onset of the Cold War quickly brought it back in full force. See Abbott Gleason, Totalitarianism: The Inner History of the Cold War (New York, 1995). 3. The literature on Protestant and republican liberty is of course enormous. On Protestant liberty, a classic American source is John Winthrop, “Speech to the General Court,” in The American Puritans: Their Prose and Poetry, ed. Perry Miller (1645; repr., New York, 1956). On republican liberty, as understood by Americans, see Gordon S. Wood, The Creation of the American Republic, 1776– 1787 (Chapel Hill, NC, 1969). 4. Movement of public opinion can be tracked in the ongoing General Social Survey conducted by the National Opinion Research Center at the University of Chicago. 5. James Davison Hunter and Carl Bowman, The State of Disunion: 1996 Survey of American Political Culture. Vol. 1, Summary Report (Ivy, VA, 1996). 6. See Janice Ballou, “The Illusion of a Conservative Reagan Revolution,” Public Opinion Quarterly 56 (1992). Some of the public’s views on the economy would 327

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support an expert-planning and regulatory approach to the economy. Many more steer toward economic populism. Both these directions were part of early twentiethcentury economic progressivism. I distinguish these two strands of economic progressivism and give them independent treatment in the chapters that follow. 7. William J. Novak, The People’s Welfare: Law and Regulation in NineteenthCentury America (Chapel Hill, NC, 1996). 8. Eldon J. Eisenach, The Lost Promise of Progressivism (Lawrence, KS, 1994), 46. 9. David Brooks, Bobos in Paradise: The New Upper Class and How They Got There (New York, 2000). See also “Ivy Students March Left, Right,” Washington Times, Tuesday, April 6, 1993, A4. 10. In contrast to others, I speak of instituting “governance projects” rather than of building “state capacity” in the abstract, because the latter term encourages exaggeration of the extent to which resources and personnel are fungible. The content of governance matters, and resources and personnel usable for one activity (such as national self-defense), may fail when used for another activity (such as foreign occupation for the purposes of resource extraction) if this activity is seen as illegitimate. 11. Organized interest groups also input into the policy process. But when it comes to truly transformative policy proposals, interest groups may block, weaken, or distort them, but rarely initiate them. See Part III, Chapter 11. 12. Democracy, in this view, is not to be understood as “popular rule” in the direct sense, but simply as a device for selecting responsible political leadership. A powerful defense of democratic government understood in these terms was provided by Max Weber. See Max Weber, Political Writings (Cambridge, UK, 1994). For a synthetic overview of Weber’s position, see David Ciepley, “Democracy Despite Voter Ignorance: A Weberian Reply to Somin and Friedman,” Critical Review 13 (1999). 13. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (Cambridge, UK, 1982); Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol, eds., Bringing the State Back In (Cambridge, UK, 1985). 14. J. C. Sharman, “Culture, Strategy, and State-Centered Explanations of Revolution, 1789 and 1989,” Social Science History 27 (Spring 2003). 15. See Alan Brinkley, Liberalism and its Discontents (Cambridge, MA, 1998), chap. 7, for a fine overview of the various postwar schools of U.S. history, all of which, despite their disagreements, assume this continuity. Exception should be made for William Leuchtenburg and Barry Karl, who, like Brinkley himself, emphasize the degree to which Progressive aspirations were not fulfilled in the New Deal. 16. Oliver Hart, “An Economist’s Perspective on the Theory of the Firm,” in Organization Theory: From Chester Barnard to the Present and Beyond, ed. Oliver E. Williamson (New York, 1989), 154. 17. The major “neoclassical” contributors to the economic theory of the firm— figures such as Frank Knight and Ronald Coase, among classic figures, and Oliver Hart and Luigi Zingales, among contemporary figures—have all been so by

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abandoning these defining neoclassical assumptions. For an overview of the twentieth-century history of the economic theory of the firm that foregrounds these issues, see David Ciepley, “Authority in the Firm (and the Attempt to Theorize It Away),” Critical Review 16 (2004). 18. Orlando Patterson, “Life, Liberty and Excessive Force,” The New York Times, February 28, 2000. 19. Ibid. 20. For a classic statement of left liberal neutralism, see Ronald Dworkin, A Matter of Principle (Cambridge, MA, 1985). For right liberal neutralism, see Robert Nozick, Anarchy, State, and Utopia (New York, 1974). For a helpful summary view of both positions, see Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA, 1996), 11. 21. See, for example, Will Kymlicka, “Three Forms of Group-Differentiated Citizenship in Canada,” in Democracy and Difference: Contesting the Boundaries of the Political, ed. Seyla Benhabib (Princeton, NJ, 1996). Kymlicka opens the article by citing the Canadian Supreme Court, that “accommodation of difference is the essence of true equality.” This seems also the position of U.S. multiculturalists. It is not, however, a classical liberal position, and is one with which the French, who also take their equalité very seriously, would strongly disagree. 22. Exceptions would include a small group of “neoconservatives” on the political Right, and an even smaller group of “communitarians” on the political Left. 23. Everson v. Board of Education of Ewing Township, 33 U.S. 1, 24 (1947); see Sandel, Democracy’s Discontent, 56. 24. See Michael J. Sandel’s contribution to Debating Democracy’s Discontent: Essays on American Politics, Law, and Public Philosophy, ed. Anita L. Allen and Milton C. Regan Jr. (Oxford, 1998), 320. 25. Eric Foner, The Story of American Freedom (New York, 1998), 188–189. To appease California farmers, the Act placed no quotas on immigrants from Latin America, who provided a cheap labor pool. However, in the early years of the Depression, more than 400,000 Mexican-Americans were “voluntarily” repatriated by local authorities in the Southwest. See Foner, The Story of American Freedom, 240. 26. Ibid., 187–188. 27. Robert H. Wiebe, The Search for Order, 1877–1920 (New York, 1967). 28. For comments on the continued appeal of “republicanism” in France, see Mark Lilla, “The Other Velvet Revolution: Continental Liberalism and its Discontents,” Daedalus 123 (1994): 152–153. 29. Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (1989; repr. Chicago, 1996), 296–297. 30. Emil Lengyel’s The New Deal in Europe (New York, 1934) spawned a literature comparing, without prejudgment, the economic programs of Italy, Germany, and the Soviet Union with the New Deal. 31. Lifka, “Totalitarianism” and Foreign Policy, 90. 32. See Howard Brick, Beyond the Bourgeoisie: The Postcapitalist Vision and American

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Social Liberalism in the Twentieth Century (Cornell University Press, 2006). Brick’s recent work provides an important corrective to the notion that the Cold War era was a monolithic celebration of market capitalism. 33. Walter Lippmann, Drift and Mastery: An Attempt to Diagnose the Current Unrest (New York, 1914), 147. 34. Quoted in E. Digby Baltzell, The Protestant Establishment: Aristocracy and Caste in America (New York, 1964), 233. 35. Walter Lippmann, An Inquiry into the Principles of the Good Society (Boston, 1937), 55. 36. Ido Oren, “Is Culture Independent of National Security? How America’s National Security Concerns Shaped ‘Political Culture’ Research,” European Journal of International Relations 6(4) (2000); Kenneth Osgood, Total Cold War: Eisenhower’s Secret Propaganda Battle at Home and Abroad (Lawrence, KA, 2006). 37. Edward A. Purcell Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington, 1973) is the seminal study on this methodological debate and its significance for postwar social scientific views of the United States. 38. Foner, The Story of American Freedom, 163, 217. 39. If we except the principle of religious toleration, they were in practice in the New England colonies from the early seventeenth-century. See Donald S. Lutz, ed., Colonial Origins of the American Constitution: A Documentary History (Indianapolis, 1998). 40. Canonical among critics are the views of Alasdair C. MacIntyre, After Virtue, 2nd ed. (Notre Dame, 1984). Among defenders, a classic view is John Rawls, A Theory of Justice (Cambridge, MA, 1971), chap. 40. 41. The gendered language is, unfortunately, true to the sources. 42. See Richard H. Popkin, The History of Scepticism from Erasmus to Spinoza (Berkeley, 1979). The biography of William Chillingworth, the seventeenthcentury English theologian, illustrates this dynamic. 43. I elaborate on this point in Chapter 14. 44. On Guizot, see Pierre Manent, An Intellectual History of Liberalism (Princeton, 1995). 45. For good overviews of the thought of Federalists, see Daniel W. Howe, “The Political Psychology of The Federalist,” The William and Mary Quarterly 44 (July 1987); Henry F. May, The Enlightenment in America (Oxford, 1976); Wood, The Creation of the American Republic. 46. On Whig thought, see Daniel Walker Howe, The Political Culture of the American Whigs (Chicago, 1979); Stewart Winger, Lincoln, Religion, and Romantic Cultural Politics (DeKalb, 2003). On debts of Tocqueville to native informants, see George Wilson Pierson, Tocqueville in America (New York, 1938). 47. For examples of this merry promiscuity, see James T. Kloppenberg, “The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse,” The Journal of American History 74 (June 1987).

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48. For example, eighteenth-century moral individualism was premised on the individual’s unmediated access to the universal moral law. The prevailing liberal view today, routinely invoked in our ceremonial discourse (commencement addresses, inaugurations, and so on), is that, to lead an authentic life, we as individuals must choose our own values and commitments. See Markella Rutherford, “Sacralization of a Secular Ideal: The Ascendancy of Choice in Ceremonial Discourse,” Insight (Newsletter of the Institute for Advanced Studies in Culture, University of Virginia), Fall 2004. I will have more to say on this point in the conclusion. 49. Herbert Croly, The Promise of American Life (1909; repr. Boston, 1989), 22. 50. Ibid., 400. 51. Ibid., 408. 52. Michel Foucault, The History of Sexuality, vol. 2, The Use of Pleasure (New York, 1985), 9. 53. The term “market fundamentalism” comes from George Soros. 54. As for political oppression, formative politics can certainly produce it—Hitler’s Nazism is, as we’d expect, the stock example. But standard liberal protections— freedom of speech and the press, religious toleration, trial by jury or independent judges, due process protections, and so forth—have a good track record of protecting against it, without going to the extreme of neutralism. Furthermore, the extra protection afforded by moral neutrality is largely illusory, since most political oppression is justified not on the moral ground of furthering human perfection, but on nonmoral grounds such as “security.” This was true in Hitler’s Germany as well. Yet no one would argue that government should not concern itself with security. As for the argument from moral skepticism, it is self-defeating. If one way of life cannot be shown to be better than another, then it cannot be shown that we ought to live under a neutral state rather than a formative one. Furthermore, the position of moral skepticism has been in retreat within moral philosophy for several decades, and for this reason also it is an unpromising candidate to ground neutralism. Important defenses of “ethical realism” can be found in the writings of Richard Bernstein, Robert Brandom, Susan Hurly, Sabina Lovibond, Alasdair MacIntyre, John McDowell, Hilary Putnam, Jeffrey Stout, Charles Taylor, and Stephen Toulmin. Arguments from autonomy, which in recent decades have largely replaced arguments from moral skepticism, are more subtle and would require too much space to here summarize and rebut. But they, too, ultimately fail as arguments against formative politics. See especially the criticisms in George Sher, Beyond Neutrality: Perfectionism and Politics (Cambridge, UK, 1997). The argument from pluralism I partially address above, in my discussion of Sandel. For further treatment, see Sher, Beyond Neutrality. Also, as I document in Part IV, institutionalization of the neutrality ideal, rather than bringing social peace, has helped spark the culture wars.

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1. An Exceptional Beginning 1. Theda Skocpol, “Bringing the State Back In: Strategies of Analysis in Current Research,” in Evans, Rueschemeyer, and Skocpol, Bringing the State Back In, 28. 2. Ibid., 6. 3. Ibid., 6. 4. See Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA, 1998). 5. Jürgen Herbst, The German Historical School in American Scholarship: A Study in the Transfer of Culture (Ithaca, NY, 1965). See also Thomas L. Haskell, The Emergence of Professional Social Science: The American Social Science Association and the Nineteenth-Century Crisis of Authority (Urbana, IL, 1977). For greater detail on the economists, see John B. Parrish, “Rise of Economics as an Academic Discipline: The Formative Years to 1900,” Southern Economic Journal 34 (July 1967). 6. Rodgers, Atlantic Crossings, 87–90, 95–97. 7. Edward Shils, “The Modern University and Liberal Democracy,” Minerva 27 (Winter 1989). 8. Dorothy Ross, The Origins of American Social Science (Cambridge, UK, 1991), 70. 9. For influential examples of these approaches, see respectively Talcott Parsons, Societies: Evolutionary and Comparative Perspectives (Eaglewood Cliffs, NJ, 1966); Charles Tilly, ed., The Formation of National States in Western Europe (Princeton, 1975); and Immanuel Wallerstein, The Modern World-System II: Mercantilism and the Consolidation of the European World-Economy, 1600–1750. (New York, 1980). 10. George M. Thomas and John W. Meyer, “The Expansion of the State,” Annual Review of Sociology 10 (1984). 11. The rediscovery of Roman law aided this process and gave it some key vocabulary, but it did not motivate it or determine its content. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA, 1983), 405–406. 12. Leonard Krieger, “The Idea of the Welfare State in Europe and the United States,” Journal of the History of Ideas 24 (October–December 1963) 555. 13. This development was not, as generally supposed, the upshot of struggles between the crown and the corporate and feudal bodies beneath it, as shown by the case of Norman Sicily, which was the first to develop such a body of law, and where feudal bodies were in disarray. Berman, Law and Revolution, 417. 14. The early history of the Carolinas is instructive in this regard. 15. Louis Hartz, The Liberal Tradition in America (1955; repr. New York, 1991), 43, quoting Sir William Ashley. 16. At the founding of the Puritan colonies, only men enjoying full church membership—the “elect”—were qualified to vote, but the franchise was gradually extended, first to include the children of the elect, and finally all adult males.

Notes to Pages 43–46

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See Adam B. Seligman, Innerworldly Individualism: Charismatic Community and Its Institutionalization (New Brunswick, NJ, 1994). 17. On the dilemma for governance posed by original sin, compare Winthrop, “Speech to the General Court,” and John Cotton, “Limitation of Government,” in The American Puritans: Their Prose and Poetry, ed. Perry Miller (New York, 1956). 18. On governance in the Massachusetts Bay Colony, see Edmund S. Morgan, The Puritan Dilemma: The Story of John Winthrop, 2nd ed. (New York, 1999), chaps. 7, 8, and 11. 19. All of these grievances are enumerated in the Declaration of Independence. 20. On British administrative strength, see John Brewer, The Sinews of Power (London, 1989). 21. Many of these continuities are touched on in the first chapter of Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge, LA, 1980). See also Lutz, Colonial Origins of the American Constitution. The John Quincy Adams quote is cited in Skowronek, Building a New American State, 21. On the “moral psychology” informing the Constitution, see Daniel W. Howe, “The Political Psychology of The Federalist,” The William and Mary Quarterly 44 (July 1987). On the connection between this moral psychology and New England Protestantism, see Daniel W. Howe, The Unitarian Conscience: Harvard Moral Philosophy, 1805–1861 (Middletown, CT, 1970). 22. Garry Wills, A Necessary Evil: A History of American Distrust of Government (New York, 1999). 23. Contrary to the received wisdom, even this was not an expression of pure antistatism. The principal addition was to give the other branches a check upon the legislature, thereby strengthening and stabilizing the state. 24. Skowronek, Building a New American State, 21. 25. For further detail, see my discussion of judicial review in Part IV. On the intellectual currents informing the framing of the Constitution, see Wood, The Creation of the American Republic. 26. Milkis points up the irony of Madison’s actions: Wheras the original structure of the separation of powers was designed to check the legislative power, the opposition of Madison and Jefferson to Hamilton’s policies led them to support a political program to restrain executive authority and preserve the authority of the more popular institutions. This modification of the “Madisonian Republic” required not only a commitment to states’ rights, but also the creation of a political party. Thus Madison, the chief architect of a “Constitution-Against-Parties,” to use Richard Hofstadter’s term, played a leading role in founding the first majority party on American soil, which, in turn, reformulated significantly his original constitutional design. Sidney M. Milkis, The President and the Parties: The Transformation of the American Party System since the New Deal (Oxford, 1993), 23.

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27. Garry Wills, James Madison (New York, 2002), audiotape. 28. Daniel Walker Howe, The Political Culture of the American Whigs (Chicago, 1979), 59. 29. The electoral appeal of the Whig party and its program for national improvement is chronically underestimated. See Michael Holt, The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the Civil War (New York, 1999). 30. For an account of the campaign rhetoric of 1828, see Paul C. Nagel, John Quincy Adams: A Public Life, a Private Life (New York, 1997), chap. 12. For Southern slaveholders’ growing fear of federal prerogatives in the economic field, see John Lauritz Larson, “Liberty by Design: Freedom, Planning, and John Quincy Adams’s American System,” in The State and Economic Knowledge: The American and British Experiences, ed. Mary O. Furner and Barry Supple (Cambridge, UK, 1990). 31. The classic treatment of Jacksonian Republicanism is Marvin Meyers, The Jacksonian Persuasion: Politics and Belief (Stanford, CA, 1957). 32. For a characteristic condemnation, see Anonymous, “The Position of Parties,” American Review: A Whig Journal of Politics, Literature, Art and Science 1 (February 1845): 15. 33. A powerful challenge to this thesis has been launched by Richard Bensel, who notes the intense state-building that occurred under party government in both the North and South during the Civil War. However, it seems significant that this occurred only after normal party competition in both North and South had broken down, and only while normal party localism was overbalanced by the common concern of prosecuting the war. See Richard Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (Cambridge, UK, 1990). 34. Skowronek, Building a New American State. 35. For an account that also stresses the importance of epistemological shifts, see James T. Kloppenberg, Uncertain Victory: Social Democracy and Progressivism (Oxford, 1986). 36. If one considers, for example, the Western land grants given to subsidize railroad development, and the national banking system chartered to finance it, they may not have been wrong, although this boosterism did not require an administrative state. 37. Karl Marx, “Economic and Philosophic Manuscripts of 1844,” in The MarxEngels Reader, ed. Robert C. Tucker (New York, 1978), 70. See generally Skowronek, Building a New American State. 38. Skowronek, Building a New American State, 124. 39. Ibid., chap. 5. 40. Ibid. 41. A good source on this zoology of reform ideas is Rodgers, Atlantic Crossings. 42. Skowronek, Building a New American State, 44.

Notes to Pages 56–64

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2. Social Science, Progressivism, and the State 1. John G. Gunnell, The Descent of Political Theory: The Genealogy of an American Vocation (Chicago, 1993), 42. 2. Skowronek, Building a New American State, 55; Nancy Cohen, The Reconstruction of American Liberalism, 1865–1914 (Chapel Hill, NC, 2002). 3. For a helpful corrective to these common misunderstandings, see Eisenach, The Lost Promise of Progressivism. It is well to remember that “objectivity” can itself be a strategy of influence, and institutional separation a strategy of engagement. 4. Gunnell, The Descent of Political Theory, 41. 5. On the Historical and Political Science Association, see ibid., 39. 6. Ibid., 27, 28, 29. 7. Ibid., 25. 8. Quoted in ibid., 69. 9. Woodrow Wilson, The State: Elements of Historical and Practical Politics (Boston, 1889), and Woodrow Wilson, “The Study of Administration,” Political Science Quarterly 2 (June 1887). 10. On the founding of the AEA, see Mary O. Furner, Advocacy and Objectivity: A Crisis in the Professionalization of American Social Science, 1865–1905 (Lexington, KY, 1975), chap. 3. Also Ross, The Origins of American Social Science, 63, 110, 159; A. W. Coats, “The First Two Decades of the American Economic Association,” American Economic Review 50 (1960). 11. Quoted in Gunnell, The Descent of Political Theory, 47. 12. On the popularity of the textbook, see Ross, The Origins of American Social Science, 409. See also Benjamin G. Rader, The Academic Mind and Reform: The Influence of Richard T. Ely in American Life (Lexington, KY, 1966), 160, who notes that Ely’s textbook sold a whopping 350,000 copies between World War I and World War II. On Roosevelt, see Richard T. Ely, Ground Under Our Feet: An Autobiography (New York, 1938). 13. Rodgers, Atlantic Crossings, 86. 14. Henry Carter Adams, “Relation of the State to Industrial Action,” Publications of the American Economic Association 1 (1887). On its significance for the thinking of this generation of economists, see Ely, Ground Under Our Feet. 15. On the influence of Schmoller and Wagner, see Rodgers, Atlantic Crossings, 90. 16. Skowronek, Building a New American State, 133. 17. Eisenach, Lost Promise, 152. 18. Rodgers, Atlantic Crossings, 99. 19. Eisenach, Lost Promise, especially 129–137. 20. Quoted in ibid., 203. 21. Ibid., 62–67. 22. On Dewey, see Bruce Kuklick, Churchmen and Philosophers: From Jonathan Edwards to John Dewey (New Haven, CT, 1985), chaps. 13–17. On Croly, see Herbert Croly, Progressive Democracy (New York, 1914), last chapter.

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23. Skowronek, Building a New American State, 255. 24. Arthur M. Schlesinger Jr., The Crisis of the Old Order: 1919–1933 (Boston, 1957), 31. 25. Ibid., 34. 26. Ibid., 37. 27. Rodgers, Atlantic Crossings, 288. 28. Ibid., 279. 29. Walter Weyl, The End of the War (New York, 1918), 303, 304. Quoted in Schlesinger, The Crisis of the Old Order, 39. 30. William E. Leuchtenburg, “The New Deal and the Analogue of War,” in Change and Continuity in Twentieth-Century America, ed. John Braeman, Robert H. Bremner, and Everett Walters (Columbus, OH, 1964). 31. Ahlstrom, Religious History, chap. 53. 32. Rodgers, Atlantic Crossings, 251, 276, 379. 33. On the differential impact of the war on Christian and scientific progressives, see John A. Thompson, Reformers and War: American Progressive Publicists and the First World War (Cambridge, UK, 1987). 34. Barry D. Karl, The Uneasy State: The United States from 1915 to 1945 (Chicago, 1983), 33. 35. Schlesinger, The Crisis of the Old Order, 132–133. 36. Lippmann, Croly, and Kloppenberg quotes drawn from Kloppenberg, Uncertain Victory, 392, 393, 391–392, 394. For pungent quotations from Mencken on democracy, see Schlesinger, The Crisis of the Old Order, 148–149. 37. See, for example, the writings of Reinhold Niebuhr in this period, or those of the New York Jewish intellectuals associated with Partisan Review. 38. See Rodgers, Atlantic Crossings, 306–317. 39. Croly, Progressive Democracy. 40. Cass R. Sunstein, “Constitutionalism after the New Deal,” Harvard Law Review 101 (1987): 422–423. 41. On the role of the foundations, see Olivier Zunz, Why the American Century? (Chicago, 1998), 36–38. 42. Ross, The Origins of American Social Science, 452–453. 43. Gunnell, The Descent of Political Theory, 122. 44. Ibid., 110. 45. Ross, The Origins of American Social Science, 253, 428–437. 46. See Roscoe Pound, “The Theory of Judicial Decision,” Harvard Law Review 36 (1923), noted by Mark Silverstein, Constitutional Faiths: Felix Frankfurter, Hugo Black, and the Process of Judicial Decision Making (Ithaca, NY, 1984), 68. 47. Silverstein, Constitutional Faiths, 80. 48. For example, a host of new policy institutes sprang up either during or immediately after the war, addressing themselves to national issues—the National Bureau of Economic Research, the National Research Council, the Twentieth Century Fund, the Institute for Government Research, and the Institute of Economics, prominent among them.

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49. See the essays collected in Frank H. Knight, The Ethics of Competition and Other Essays, 1st ed. (New York, 1935), and Frank H. Knight, Freedom and Reform: Essays in Economics and Social Philosophy (1947; repr. Indianapolis, 1982). 50. The results were published as Waste in Industry. American Engineering Council, 1921. Waste in Industry New York: Federated American Engineering Societies. 51. Anne Mayhew, “How American Economists Came to Love the Sherman Antitrust Act,” in From Interwar Pluralism to Postwar Neoclassicism: Annual Supplement to Volume 30, History of Political Economy, ed. Mary S. Morgan and Malcolm Rutherford (Durham, NC, 1998), 194. 52. The final line of Stuart Chase, A New Deal (New York, 1933), a book that began with a long quote from The Engineers and the Price System, and whose title was borrowed by Roosevelt, prepress. 53. On Howard Scott, see Schlesinger, The Crisis of the Old Order, 461–463. 54. See, for example, the protestations of Charles A. Beard, “A ‘Five-Year Plan’ for America,” in America Faces the Future, ed. Charles A. Beard (Boston, 1932), 118. 55. Barry Karl, Executive Reorganization and Reform in the New Deal: The Genesis of Administrative Management, 1900–1939 (Cambridge, MA, 1963), 72. 56. The seminal essay on Hooverite associationalism is Ellis Hawley, “Herbert Hoover, the Commerce Secretariat, and the Vision of an ‘Associative State,’ 1921–1929,” Journal of American History 61 (June 1974). For more extensive studies, see Guy Alchon, The Invisible Hand of Planning: Capitalism, Social Science, and the State in the 1920s (Princeton, NJ, 1985); William J. Barber, From New Era to New Deal: Herbert Hoover, the Economists, and American Economic Policy, 1921–1933 (Cambridge, UK, 1985), and Patrick D. Reagan, Designing a New America: The Origins of New Deal Planning, 1890–1943 (Amherst, MA, 1999). 57. Yuval P. Yonay, The Struggle over the Soul of Economics: Institutionalist and Neoclassical Economists in America between the Wars (Princeton, NJ, 1998). 58. Rexford G. Tugwell, “The Principle of Planning and the Institution of LaissezFaire,” American Economic Review Supplement (March 1932): 89–90. Tugwell intended to be provocative in this speech; he was at the same time writing up a more moderate economic reconstruction plan—rather like the plan of Gerard Swopes but with more enforcement power—appearing in 1933 as The Industrial Discipline and the Governmental Arts. See Schlesinger, The Crisis of the Old Order, 196.

3. A Unique Economic Path 1. Harold D. Smith, Testimony before the Committee on Expenditures in the Executive Department, House of Representatives, 79: 1, September 25, 1945, 61. Quoted in William J. Barber, Designs within Disorder: Franklin D. Roosevelt, the Economists, and the Shaping of American Economic Policy, 1933–1945 (Cambridge, UK, 1996), 165.

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2. The phrase “market fundamentalism” comes from George Soros, one of its trenchant critics. 3. See Novak, The People’s Welfare. 4. On philanthropic foundations, see Barry Karl and Stanley Katz, “The American Private Philanthropic Foundation and the Public Sphere 1890–1930,” Minerva 19 (1981). 5. For an overview of state-market patterning after World War II in countries around the world, see Daniel Yergin and Joseph Stanislaw, The Commanding Heights: The Battle between Government and the Marketplace That Is Remaking the Modern World (New York, 1999). 6. Brinkley, Liberalism and Its Discontents, 33. 7. Barber, Designs within Disorder, 140–151. 8. Ibid., 167. 9. Ibid. 10. Further detail on a number of these points can be found in the first chapter of Yergin and Stanislaw, The Commanding Heights. 11. Novak, The People’s Welfare; Cohen, Reconstruction of American Liberalism. 12. This is one of the few points were I disagree with Brinkley, who holds that the success of the wartime economy was the leading factor in the “rebirth of faith in capitalism.” See Brinkley, Liberalism and Its Discontents, 59. 13. Arthur Vandenberg to Alton Roberts, September 19, 1939, Vandenberg Papers, quoted in Lifka, The Concept “Totalitarianism,” vol. 1, 134. 14. Compare Alan Brinkley, “The Two World Wars and American Liberalism,” in Brinkley, Liberalism and Its Discontents, on reasons for this difference. 15. William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932–1940 (New York, 1963), 197. 16. For example, in 1942, Thurman Arnold, head of the antitrust division of the ICC, wrote to debunk “the myth of totalitarian efficiency.” Thurman W. Arnold, Democracy & Free Enterprise (Norman, OK, 1942), 29, 30. 17. Friedrich Hayek, The Road to Serfdom (Chicago, 1944). 18. On the ways in which historians have related the Progressive Era and the New Deal, see Brinkley, Liberalism and its Discontents, chap. 7. 19. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York, 1995). 20. Schlesinger, Crisis of the Old Order, 159; Jeremy Atack and Peter Passell, A New Economic View of American History, 2nd ed. (New York, 1994), 584. 21. Brinkley, The End of Reform, 83. 22. “Social Science and the Political Trend” (1934), reprinted in Knight, Freedom and Reform, 27–28. 23. Walter Lippmann pointed this out in an astute 1934 essay. Walter Lippmann, “Recovery by Trial and Error,” Yale Review 24 (September, 1934). 24. Brinkley, Liberalism and Its Discontents, 86. 25. Barber, Designs within Disorder, 30. 26. Karl, The Uneasy State, 227.

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27. “Commonwealth Club Address,” reprinted in Franklin D. Roosevelt, Public Papers and Addresses, vol. 1 (New York, 1938), 742–756. This was Roosevelt’s most explicit statement of his governance philosophy during the 1932 campaign. Milkis has put to rest the notion that he received its contents passively from its principal drafter, Adolf Berle. Roosevelt rejected several drafts and made revisions to the final draft himself. See Milkis, The President and the Parties, 39–43. 28. Roosevelt, “Commonwealth Club Address.” Roosevelt did not have in mind a formal amendment to the Constitution. He did mean for the new economic “rights” to be so institutionalized, so taken for granted, that they would cease to be partisan political issues. 29. The rhetorical appeal to “security” was influenced by a series of articles published in the New Republic by John Dewey in 1929 on “Individualism, Old and New.” See Milkis, The President and the Parties, 40. 30. Brinkley, Liberalism and its Discontents, 22. 31. Rodgers, Atlantic Crossings, 419. 32. Rodgers, Atlantic Crossings, 378. 33. Barber, Designs within Disorder, 19, 20. 34. In its more assertive forms, the union movement belongs to a yet different governance project, that of a labor-led “social democracy,” comparable to what emerged in Britain after the war, and which emerged as a viable governance option in the United States during Roosevelt’s second term. Progressives in the New Deal, including Secretary of Labor Frances Perkins and FDR himself, were only lukewarm toward unions, however, and fell in with the cause of collective bargaining only with the rise of labor as an important New Deal constituency. The social democracy governance project will thus not be described here. Its story, however, is consistent with the themes of this book. The setbacks it suffered in the late 1930s and the mortal wounds it suffered in 1947–1948 were exacerbated by anticommunist and antitotalitarian sentiments, which were at local maxima in these periods. See Richard H. Pells, The Liberal Mind in a Conservative Age (New York, 1985). 35. The relevant portion of the NIRA was Section 7(a), which established the right to collective bargaining and maximum hour and minimum wage standards. Relevant succeeding legislation includes the National Labor Relations Act (or Wagner Act) of 1935, and the Fair Labor Standards Act of 1938. 36. In evaluating the New Deal, even on its own terms, it should be noted that it never succeeded, despite many forays, in substantially redistributing income downward, or in any other way institutionalizing the purchasing power thesis. And indeed, it never succeeded in decisively pulling the country out of depression. The war, however, did both these things. 37. These governance projects were not in general mutually exclusive. Indeed, many of them were seen as complements by their advocates. For example, a Keynesian state might complement a development state (which would direct compensatory spending toward long-term development projects) and a welfare state (which could utilize the development projects for “workfare”).

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4. The Quest for a Cooperative Commonwealth 1. Even before Turner, Woodrow Wilson had sounded this theme, in his famous 1887 case for administrative government. See Skowronek, Building a New American State, 37. 2. “Commonwealth Club Address.” The phrase “enlightened administration” was one of Roosevelt’s many personal contributions to the speech. See Milkis, The President and the Parties, 41–42. 3. Roosevelt, quoted in Rosenof, Dogma, Depression, and the New Deal, 25. 4. Hawley, The New Deal and the Problem of Monopoly, 32. 5. Theda Skocpol and Kenneth Finegold, “State Capacity and Economic Intervention in the Early New Deal,” Political Science Quarterly 97 (1982). 6. Arthur Schlesinger Jr., The Politics of Upheaval (Boston, 1960), 212. 7. Quoted in Hawley, The New Deal and the Problem of Monopoly, 57. 8. Ibid., 61. 9. Barber, Designs within Disorder, 40. 10. A meticulous Brookings Institute report of 1935 took this position. See also Michael Weinstein’s calculations in Kenneth Finegold and Theda Skocpol, State and Party in America’s New Deal (Madison, WI, 1995), 10–12. 11. This was the view taken by J. M. Clark, a highly regarded economist and industrial expert who conducted an in-house review of the program in 1934. See Barber, Designs within Disorder, 65. 12. Hawley, The New Deal and the Problem of Monopoly, 121. 13. Arthur Schlesinger Jr., The Coming of the New Deal (Boston, 1959), 170. 14. Barber, Designs within Disorder, 56. 15. Adolf Berle Jr. and Gardiner Means, The Modern Corporation and Private Property (New York, 1933). The work was also noteworthy for its emphasis on the implications of the separation of ownership and control in the modern corporation. 16. Means’s original report, “NRA and AAA and the Reorganization of Industrial Policy Making,” is dated August 29, 1934, and began circulating in mimeograph form. A slightly revised version of the report, “Industrial Prices and Their Relative Inflexibility,” was, at the instigation of Senator Borah, made into Senate document 13, January 17, 1935. All quotations are drawn from this latter version. 17. Means was quick to point out that administered prices were by no means a phenomenon generated only by corporate managers. Union-negotiated wages were also administered prices, as were government-determined rates on rail tonnage and utilities. However, corporate practice was Means’s focus, and where he saw the major source of the problems. 18. Gardiner Means, “Industrial Prices and Their Relative Inflexibility,” Senate Document 13 (74th Congress, 1st Session, 1935): 11. 19. Ibid., 2, 8. In the early 1960s and on through the early 1970s, George Stigler challenged Means’s evidence and questioned the existence of the administered

Notes to Pages 106–114

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price phenomenon. The received wisdom is that this challenge was successful. Recent research into the controversy undertaken by Frederic Lee, however, suggests that this conclusion is incorrect. See Frederic S. Lee, “Administered Price Hypothesis and the Dominance of Neoclassical Price Theory: The Case of the Industrial Prices Dispute,” Research in the History of Economic Thought and Methodology 17 (1999). 20. Means, “Industrial Prices and Their Relative Inflexibility,” 11. 21. Ibid., 11–12. 22. Ibid., 12. 23. Baltzell, The Protestant Establishment, 271. 24. Anonymous, “All Power to the Trade Associations?” The New Republic (November 15, 1933). 25. Alfred M. Bingham and Selden Rodman, eds., Challenge to the New Deal (Freeport, NY, 1971), vi. 26. Ibid., vi–vii. 27. Schlesinger, The Coming of the New Deal, 133. 28. Anonymous, “Social Control vs. the Constitution,” The New Republic (June 12, 1935), 118. 29. For other examples of the either/or thinking among liberal intellectuals in this period, see Schlesinger, The Politics of Upheaval, 159–160. 30. Hawley, The New Deal and the Problem of Monopoly, 124. 31. A closer approximation to the German model would have required a shift in the focus of negotiations from price and production policy to wage and hours policy, which is precisely where Leon Henderson intended to direct it. See Schlesinger, The Coming of the New Deal, 159–160. 32. Leuchtenburg, Roosevelt and the New Deal, 146. In this period, Roosevelt also put through the Guffey Act, setting up “little NRA” codes in the coal industry. 33. Mordecai Ezekiel, “The Reminiscences of Mordecai Ezekiel,” in Columbia University Oral History Collection, part 1 (New York, 1957), 64–66. 34. Schlesinger, The Coming of the New Deal, 27. 35. Leuchtenburg, Roosevelt and the New Deal, 72. 36. Mordecai Ezekiel, the highly creative farm bureau economist and statistician who became a key architect of the AAA, both in its goals and its administrative structure, was keenly aware of the difference between the two. See Ezekiel, “Reminiscences,” 63. 37. Ibid., 47. 38. Ibid., 50. 39. Quoted in Schlesinger, The Coming of the New Deal, 72. 40. Leuchtenburg, Roosevelt and the New Deal, 75. 41. Schlesinger, The Coming of the New Deal, 72; Leuchtenburg, Roosevelt and the New Deal, 85. On its consultative component, see Ezekiel, “Reminiscences,” 81. 42. Ezekiel, “Reminiscences,” 84–85. 43. Finegold and Skocpol, State and Party in America’s New Deal, 17.

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Notes to Pages 114–121

44. Ibid., 15, 18; Leuchtenburg, Roosevelt and the New Deal, 18. 45. Leuchtenburg, Roosevelt and the New Deal, 77. 46. Schlesinger, The Coming of the New Deal, 60. 47. Ibid., 73. This was also the conclusion of the contemporary study of the AAA conducted by the Brookings Institute, and has been reaffirmed in a careful study by Sally Clarke, Regulation and the Revolution in United States Farm Productivity (New York, 1994). 48. U.S. v. Butler, 297 U.S. 1 (1936). 49. Barber, Designs within Disorder, 78.

5. Two Roads to the Development State 1. Rodgers, Atlantic Crossings, 427. 2. Clifford J. Hynning, “Administrative Evolution of National Planning in the United States in the Pre-New-Deal Era,” Plan Age 5 (June 1939): 168–169. 3. Address to the Conference of Governors (Washington, May 13–15, 1908). Quoted in ibid., 165. 4. Ibid., 164. 5. On Roosevelt’s interest in conservation, Franklin D. Roosevelt, Franklin D. Roosevelt and Conservation, 1911–1945, ed. Edgar B. Nixon (Hyde Park, NY, 1957). 6. Franklin D. Roosevelt, “Growing up by Plan,” Survey Graphic 20 (1932). 7. Schlesinger, The Coming of the New Deal, 335–336. 8. Ibid., 338. For other Progressive roots of the CCC, see Rodgers, Atlantic Crossings, 415. Roosevelt wished to make the CCC a permanent program, but it was killed by a conservative “antiplanning” Congress during the war. 9. Schlesinger, The Coming of the New Deal, 319. 10. In particular, Roosevelt was heir to New York Progressive efforts at “industrial decentralization”—a movement spearheaded in 1910 by Florence Kelly and other members of the Committee on Congestion of Population in New York, and backed with nearly half of the Russell Sage Foundation endowment, to disperse factory workers in British-inspired suburban garden cities. See Rodgers, Atlantic Crossings, 63, 183. For the deeper cultural roots of this vision, see Leo Marx, The Machine in the Garden: Technology and the Pastoral Ideal in America (1964; repr. New York, 2000). 11. Hynning, “Evolution of National Planning,” 164. 12. Schlesinger, The Coming of the New Deal, 303. 13. Ibid., 324. 14. Schlesinger, The Politics of Upheaval, 370. 15. Schlesinger, The Coming of the New Deal, 330; Schlesinger, The Politics of Upheaval, 160, 80. 16. Leuchtenburg, Roosevelt and the New Deal, 164. 17. Ibid., 165. 18. This includes Brinkley, The End of Reform. It is less true of the work of Barry

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Karl, the original expositor of the “Third New Deal” concept. See Karl, The Uneasy State. 19. This is the central point of Reagan, Designing a New America, which, along with the work of Karl, has most guided my overall interpretation of NRPB planning. 20. Ibid., 79. 21. On staffing decisions, see Karl, Executive Reorganization, 200–202. 22. George Yantis was the official replacement for Mitchell, but was essentially a passive member of the board. Dennison and Ruml were officially “advisory” members, but, given their long-standing associations with Merriam and Mitchell, participated as full members. 23. Schlesinger, The Coming of the New Deal, 36, 50, 350. 24. Reagan, Designing a New America, 188. 25. Schlesinger, The Coming of the New Deal, 350–351; Warken, A History of the National Resources Planning Board, 108. 26. Ira Katznelson and Bruce Pietrykowski, “Rebuilding the American State: Evidence from the 1940s,” Studies in American Political Development 5 (Fall 1991), 314. 27. Schlesinger, The Coming of the New Deal, 295. For an account that sees a more gradual evolution of Roosevelt’s thinking on this point, see Karl, Executive Reorganization, 203. 28. Graham, Toward a Planned Society, 112. 29. Karl, The Uneasy State, 232. 30. Richard Polenberg, Reorganizing Roosevelt’s Government: The Controversy over Executive Reorganization, 1936–1939 (Cambridge, UK, 1966), chap. 1. Karl, Executive Reorganization, chap. 5. Quotation from Roosevelt cited in Graham, Toward a Planned Society, 60. 31. Karl, Executive Reorganization, 211. 32. “Report of the President’s Committee on Administrative Management” (Washington, DC, 1937), 4, 53. 33. Ibid. 34. For discussion of this connection, see Karl, Executive Reorganization, 165–166. 35. Franklin D. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 6, 1937 (New York, 1941), 254. 36. Clawson, New Deal Planning, 81, 166–170. 37. The Four Hundredth Press Conference, October 7, 1937. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, 416. 38. Ibid., 254.

6. Totalitarianism and the Scuttling of the Development State 1. Bernard Sternsher, Rexford Tugwell and the New Deal (New Brunswick, NJ, 1964), 23–37, 236. 2. Schlesinger, The Coming of the New Deal, 37, 40, 326. 3. Baltzell, The Protestant Establishment, 244.

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Notes to Pages 130–138

4. Schlesinger, The Politics of Upheaval, 196. 5. Leuchtenburg, Roosevelt and the New Deal, 116–117. 6. On the Mitchell intervention, see Karl, The Uneasy State, 147. On New Dealers as “totalitarian liberals,” see Herbert Hoover, “It Needn’t Happen Here,” American Mercury (1940), 269. See also Herbert Hoover, The Challenge to Liberty (New York, 1934). For the crystallization of this language among conservatives for describing the New Deal, see further examples cited in Schlesinger, The Coming of the New Deal, chap. 30. 7. Quoted in Gleason, Totalitarianism, 52. 8. The now-standard interpretation of Long and Coughlin is Alan Brinkley, Voices of Protest: Huey Long, Father Coughlin and the Great Depression (New York, 1982). 9. Karl, The Uneasy State, 146. 10. It should be noted that many of these challenges, while coming from the Left in terms of their socioeconomic substance, were in many ways to the right of the New Deal in terms of the individualistic and antistatist language in which they were couched. See Anthony J. Badger, The New Deal: The Depression Years, 1933–40 (New York, 1989), 294–296 and the literature cited therein. 11. Schlesinger, The Politics of Upheaval, 640. 12. It has often been argued, in light of subsequent events, that this was a misreading—that the election only confirmed the relief and welfare programs and not a strong presidency per se. (See, for example, Brinkley, The End of Reform, 15–17.) Not much evidence has been offered to support this, however, beyond the tide of events themselves. It is equally plausible to suppose that, initially, public and elite opinion only resisted the means he chose to secure it—the device of “Court packing.” This interpretation is supported by the relative equanimity with which the executive reorganization plan was initially greeted by the general public. But there can be no doubt that during the next eighteen months, with events in Europe as a backdrop, resistance to Roosevelt’s choice of means would grow into a rejection of his end. 13. Kenneth S. Davis, FDR: Into the Storm 1937–1940: A History (New York, 1993), 9, 29. 14. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 6, pp. 1, 3, 5. 15. Davis, FDR: Into the Storm, 43. 16. Published Sunday, January 17, 1937, in The New York Times Magazine. 17. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, 39. vol. 6 18. New York Herald-Tribune, January 14, 1937. 19. Polenberg, Reorganizing Roosevelt’s Government, 30. 20. Ibid., 87. 21. The classic source is William E. Leuchtenburg, “Franklin D. Roosevelt’s Supreme Court ‘Packing’ Plan,” in Essays on the New Deal, ed. Harold M. Hollingsworth and William F. Holmes (Austin, TX, 1969). 22. Supporting the present interpretation, Roosevelt explained at a press conference that the Court plan, “which I think a week ago took most people by surprise, dates back over about a year and a half . . . [to] the NRA decision.”

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Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 6, 75. In his radio address of March 4 defending the bill, he added (after ticking off all the legislation knocked down by the Court) the question of how, without a change on the Court, it would be possible to “complete [the] Tennessee Valley project or extend the idea to the Ohio and other valleys while the lowest courts have not hesitated to paralyze its operations by sweeping injunctions?” Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 6, 119. 23. Leuchtenburg, “Roosevelt’s Supreme Court ‘Packing’ Plan,” 76. 24. Davis, FDR: Into the Storm, 67. 25. Leuchtenburg, “Roosevelt’s Supreme Court ‘Packing’ Plan,” 78–79. 26. Polenberg, Reorganizing Roosevelt’s Government, 58. 27. Ibid., 62–63. 28. James T. Patterson, Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933–1939 (Lexington, KY, 1967), 120. 29. This is, in altered language, the position taken by Leuchtenburg. Leuchtenburg, Roosevelt and the New Deal, 238. 30. New York Herald-Tribune, May 6, 1937. 31. Polenberg, Reorganizing Roosevelt’s Government, 88. 32. U.S. Chamber of Commerce, “Government Reorganization” (Washington, DC, 1938), 16. 33. Polenberg, Reorganizing Roosevelt’s Government, 89. 34. Gary Dean Best, The Critical Press and the New Deal: The Press versus Presidential Power, 1933–1938 (Westport, CT, 1993); Polenberg, Reorganizing Roosevelt’s Government, 151. 35. Polenberg, Reorganizing Roosevelt’s Government, 148–149. 36. Ibid., 70–72; Franklin D. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 7, 1938 (New York, 1941), 251. 37. Polenberg, Reorganizing Roosevelt’s Government, 147–149. 38. Schlesinger, The Politics of Upheaval, 362–373; Leuchtenburg, Roosevelt and the New Deal, 165; Polenberg, Reorganizing Roosevelt’s Government, 156–157. 39. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 7, 179. Polenberg, Reorganizing Roosevelt’s Government, 159. 40. Leuchtenburg, Roosevelt and the New Deal, 278; Polenberg, Reorganizing Roosevelt’s Government, 127. 41. Karl, The Uneasy State, 158; Leuchtenburg, Roosevelt and the New Deal, 30. 42. Polenberg, Reorganizing Roosevelt’s Government, 127; Frank Kent, New York Herald-Tribune, August 17, 1937. 43. Polenberg, Reorganizing Roosevelt’s Government, 184–188.

7. The Retreat from Cooperation to Fiscal Compensation 1. Leuchtenburg, Roosevelt and the New Deal, 150. 2. This was the view of Thomas Corcoran, for example. But his own mentor, Felix Frankfurter, cast doubt on the notion of any clear distinction between a First and Second New Deal, in a letter to Arthur Schlesinger Jr., the historian

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Notes to Pages 147–155

who did so much to institutionalize the idea. See Freedman, Roosevelt and Frankfurter, 24–26. 3. Leuchtenburg, Roosevelt and the New Deal, 163. 4. Brinkley, The End of Reform, 40. 5. Barber, Designs within Disorder, 63. 6. Ezekiel put his plan into print in Mordecai Ezekiel, $2500 a Year (New York, 1936), and in revised form in Mordecai Ezekiel, Jobs for All through Industrial Expansion (New York, 1939). For a trenchant criticism of the plan, complete with a peroration on the dangers of “subjecting our free institutions to the strain of totalitarian government intervention in the everyday activities of the individual citizen,” see N. I. Stone, “Mordecai Ezekiel’s Job’s for All,” Plan Age 5 (June 1939): 204. Ezekiel defends the practicability of his plan in Mordecai Ezekiel, “Problems of Industrial Planning under American Institutions,” Plan Age 5 (January 1939). 7. Good accounts of the recession debate are available in Hawley, The New Deal and the Problem of Monopoly and Brinkley, The End of Reform. Quotes from Richberg are cited in Brinkley at 44–45. For a good summary of the Ezekiel plan and the legislative life of the Industrial Expansion Act, see Hawley, The New Deal and the Problem of Monopoly, 177–186. 8. Schlesinger, The Crisis of the Old Order, 134–136. Brinkley, The End of Reform, 74–83. 9. Schlesinger, The Crisis of the Old Order, 110. Brinkley, The End of Reform, 83–85. 10. Brinkley, The End of Reform, 95–97. 11. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 7, 13, 30. Brinkley, The End of Reform, 88–91. 12. Brinkley, The End of Reform, 65, 98. 13. The other two authors were Leon Henderson and Aubrey Williams of the WPA. Authorship has conventionally been assigned to Henderson, but he attributes principal authorship to Ruml (who had a passion for anonymity). See Reagan, Designing a New America, 207. 14. Beardsley Ruml, “Warm Springs Memorandum,” April 1, 1938, Box 1, Series II, Ruml Papers (University of Chicago Special Collections), 5. 15. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 7, 242. 16. Lauchlin Currie, “Causes of the Recession,” quoted in Brinkley, The End of Reform. 17. Ruml, “Warm Springs Memorandum,” in Box 1, Series II, Ruml Papers, 6. 18. Brinkley, The End of Reform, 101; Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol 7, 11, 13, 20, 308. 19. Reported in the New York Herald-Tribune, October 20, 1938. 20. Brinkley, The End of Reform, 136. 21. The leading recommendations of the committee are enumerated in a note appended to Roosevelt’s original message to Congress, as published in Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt. For a brief history of the TNEC, see Brinkley, The End of Reform, 123–136. 22. Quoted in the New York Herald-Tribune, November 10, 1938.

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23. Lippmann, Drift and Mastery, 148. 24. Schlesinger, The Politics of Upheaval, 399. 25. Lifka, “Totalitarianism” and American Foreign Policy. 26. Walter Lippmann, The Method of Freedom (New York, 1934), 59. 27. Lippmann, The Good Society, 94n. 28. Ronald Steel, Walter Lippmann and the American Century (New Brunswick, NJ, 1998), 314. 29. Lippmann, The Good Society, 3–4, 8–9, 106. 30. Ibid., 347; Henry Steele Commager, The American Mind (New Haven, CT, 1968), 221; Schlesinger, The Politics of Upheaval, 393. 31. Steel, Walter Lippmann, 325. 32. John Dewey, “The Moscow Trials,” in The Later Works, 1925–1953 (Carbondale, IL, 1937), 328. 33. John Dewey, Freedom and Culture (New York, 1939), 71–72. 34. Theodore Rosenof, Patterns of Political Economy in America: The Failure to Develop a Democratic Left Synthesis, 1933–1950 (New York, 1983), 218. 35. “Editorial Statement,” Partisan Review, December 1937, 3. 36. Reinhold Niebuhr, The Children of Light and the Children of Darkness (New York, 1944), 117; Rosenof, Patterns of Political Economy, 228–232. 37. James Burnham, The Managerial Revolution (New York, 1941); Brinkley, The End of Reform, 156–157. 38. Gregory Bateson, comment on Margaret Mead, “The Comparative Study of Culture and the Purposive Cultivation of Democratic Values,” in Science, Philosophy, and Religion: A Symposium, ed. Lyman Bryson and Louis Finkelstein (New York, 1941), 83–84. 39. For an account of the way in which Mead, to her own satisfaction, resolved this contradiction and emerged as the leading voice for the use of anthropological expertise in the war effort and in postwar reconstruction, see David Ciepley, “Social Scientists and the New World Order: thinking locally and planning globally during World War II” (manuscript). 40. George Soule, “Toward a Planned Society,” New Republic (November 8, 1939): 29. 41. Brinkley, The End of Reform, 163. Reagan, Designing a New America, 200. 42. Theodore Rosenof, “Freedom, Planning, and Totalitarianism: The Reception of F. A. Hayek’s Road to Serfdom,” Canadian Review of American Studies 5 (Fall 1974): 153–154. 43. Rosenof, Patterns of Political Economy, 232. 44. Ibid., 223–224. 45. Compare, for example, Alvin Hansen, Full Recovery or Stagnation? (New York, 1938), 299, 301, with Hansen’s comments critical of Gardiner Means in NRPB, The Structure of the American Economy. Part II. Toward Full Use of Resources: A Symposium (Washington, DC, 1940). 46. Stuart Chase, Where’s the Money Coming From? (New York, 1943), 66; 130, Stuart Chase, “Financing America’s Future. III. ‘Nothing to Fear But Fear,’ ” Nation (October 23, 1943): 466. 47. Rosenof, Patterns of Political Economy, 203–204.

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8. Totalitarianism and the National Security State 1. The superiority of the estimates of the civilian planners, and of their mobilization strategies, to those of the military planners, is verified by the numerous Truman Commission reports. 2. Randolph Bourne, “The State,” in War and the Intellectuals: Essays by Randolph S. Bourne, 1915–1919, ed. Carl Resek (New York, 1964), 71; Brian Waddell, The War against the New Deal: World War II and American Democracy (DeKalb, IL, 2001), 68. 3. NRPB, National Resources Development Report for 1943, Part 1, Post-War Plan and Program (Washington, DC, 1943), 3. 4. NRPB, “Security, Work, and Relief Policies” (Washington, DC, 1943), 495, 502; Brinkley, The End of Reform, 252. 5. For a summary of Currie’s social welfare position, see Barber, Designs within Disorder, 129–130. 6. Rosenof, Patterns of Political Economy in America, 191. 7. Brinkley, The End of Reform, 254. 8. Ibid., 254–255. 9. John Morton Blum, V Was for Victory: Politics and American Culture during World War II (New York, 1977), 223. 10. On some abortive attempts, David E. Wilson, The National Planning Idea in U.S. Public Policy: Five Alternative Approaches (Boulder, CO, 1980), 58–59. 11. Alvin Hansen, Fiscal Policy and Business Cycles (New York, 1941), 39; Alvin Hansen, “Planning Full Employment,” Nation (October 21, 1944); Barber, Designs within Disorder, 160–161; Brinkley, The End of Reform, 259–264. 12. Henry M. Wriston, Challenge to Freedom (New York, 1943), 83–84. 13. Barber, Designs within Disorder, 167–168. 14. Why, despite this setback, did subsequent commentators so often see the postwar regime as a New Deal Keynesian conquest? Much of the reason stems from the Keynesian interpretation of the recession of 1949. The shallowness of the 1949 recession produced a collective sigh of relief from economists, most of whom feared a steep downturn as had followed the brief boom after World War I. Its shallowness also produced a growing conviction among Keynesians that New Deal “cushions” such as social security, unemployment compensation, farm price supports, minimum wages, and union maintenance of wage rates had maintained purchasing power and prevented a downward spiral. In other words, relief programs originally conceived as extraneous to macroeconomic policy were now viewed as central to it. The New Deal economic policy failure now looked like an economic policy success story. See Rosenof, Patterns of Political Economy, 206–207. 15. On this section generally, see Melvyn Leffler, A Preponderance of Power: National Security, the Truman Administration, and the Cold War (Stanford, CA, 1992). Quotations from Waddell, The War against the New Deal, 147. 16. Ibid., 149.

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17. Ibid., 154. 18. Ibid., 153. 19. Ibid., 157. 20. Ibid., 158. 21. Michael A. Bernstein, A Perilous Progress: Economists and Public Purpose in Twentieth-Century America (Princeton, NJ, 2001). 22. On the unjustified “discrediting” of Keynesianism during the “stagflation” episode, see ibid. 23. David Ciepley, “Authority in the Firm (and the Attempt to Theorize It Away),” Critical Review 16 (2004). 24. See Brick, Beyond the Bourgeoisie: The Postcapitalist Vision and American Social Liberalism in the Twentieth Century (Ithaca, 2006). 25. Roger E. Backhouse, “The Rise of Free Market Economics since 1945,” History of Political Economy, Annual Supplement, Economists and the Role of Government (2005). 26. Sonja Amadae, Rationalizing Capitalist Democracy (Chicago, 2003), especially chap. 2 on Kenneth Arrow. See also Philip Mirowski, Machine Dreams: Economics Becomes a Cyborg Science (Cambridge, UK, 2002).

9. Democracy and the “Values” Question 1. Schlesinger, The Politics of Upheaval, 370. For a concise discussion of this aspect of the New Deal, see Leuchtenburg, Roosevelt and the New Deal, 338–339, 45–46. 2. On the trajectory of American economic thought away from issues of formative politics, see Sandel, Democracy’s Discontent. 3. On the institutionalization of the freedom/totalitarianism dichotomy in American social science, see Lifka, “Totalitarianism” and American Foreign Policy, chaps. 1–3. See also Purcell, Crisis of Democratic Theory, chaps. 11, 13. For its institutionalization in law, see Gary Peller, “Neutral Principles in the 1950s,” Michigan Journal of Law Reform 21 (1988). 4. Lifka, “Totalitarianism” and American Foreign Policy, 22, 102. 5. Unlike postwar social science, however, the goal was not description for its own sake, but for the sake of reform. See the discussion of Merriam and Caitlin in Part I. 6. Purcell, Crisis of Democratic Theory, 11–12. 7. For what is probably the first sustained accusation of this sort, see William Y. Elliott, The Pragmatic Revolt in Politics: Syndicalism, Fascism, and the Constitutional State (New York, 1928). Elliott associates Deweyan pragmatism with scientific objectivism, scientific objectivism with the denial of a public good, and this denial with the rise of Mussolini’s fascism. 8. Karl F. Herzfeld, “Democracy and the Natural Sciences,” in Science, Philosophy and Religion: Second Symposium, ed. Lyman Bryson and Louis Finkelstein (New York, 1941), 31–32.

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9. Quoted in Purcell, Crisis of Democratic Theory, 168. 10. Robert Maynard Hutchins, Education for Freedom (Baton Rouge, LA, 1943), 94. 11. See Chapter 16. 12. Leo Strauss, Natural Right and History (Chicago, 1953), 1–3. Allan Bloom, The Closing of the American Mind: How Higher Education Has Failed Democracy and Impoverished the Souls of Today’s Students (New York, 1987). 13. John Dewey, Reconstruction in Philosophy (1920; repr. Boston, 1957); John Dewey, The Public and Its Problems (1927; repr. Chicago, 1954). Nor was Dewey alone in this. See also Lippmann, Drift and Mastery, 151. 14. Dewey, Freedom and Culture. Dewey was more the popularizer than the originator of this association. He most likely picked it up from William James, who in “The Will to Believe,” for example, opined that “the most striking practical application to life of the doctrine of objective certitude has been the conscientious labors of the Holy Office of the Inquisition.” Alburey Castell, ed., Essays in Pragmatism by William James (New York, 1948), 99. 15. From the end of the nineteenth-century into the early decades of the twentieth, it was a commonplace among educators defending the place of science in the university curriculum that scientific virtues—“a passion for knowledge, the love of truth, honesty, patience, singlemindedness of mind, simplicity of character, humility, reverence, [and] imagination”—were Christian virtues, and also the virtues required of a democratic citizenry. See Julie A. Reuben, The Making of the Modern University: Intellectual Transformation and the Marginalization of Morality (Chicago, 1996), 136. For the scientific naturalists of the 1930s, all that was necessary was to add “skepticism” and “relativism” to this list, and they had a basis for associating their own methodological position with democracy. This is exactly what happened, with Karl Popper as perhaps its most famous popularizer. See David M. Ricci, The Tragedy of Political Science: Politics, Scholarship, and Democracy (New Haven, CT, 1984), 157–158. 16. For a representative example of Maritain’s position, see his contribution to the inaugural issue of the Review of Politics, a clearinghouse for rational absolutist writings, in which he called for the “liquidation” of the last four centuries of modern thought in favor of an “integral humanism” that could provide a new basis for the democratic ideal. Jacques Maritain, “Integral Humanism and the Crisis of Modern Times,” Review of Politics 1 (1939). 17. Sidney Hook, “Integral Humanism,” in Reason, Social Myths, and Democracy (New York, 1940), 76. 18. Ibid., 84. Reprinted from a 1940 Partisan Review article. 19. Horace Kallen, “Freedom and Authoritarianism in Religion,” in The Scientific Spirit and Democratic Faith, ed. Eduard C. Lindeman (New York, 1944), 10. 20. “Reeducation” was a prominent part of most POW camps, but physical torture seems to have played a large part as well in producing the confessions and statements. All the effects of Korean and Chinese reeducation proved fully reversible with reintegration into American life. See Gleason, Totalitarianism, 92–93.

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21. From T. V. Smith, Discipline for Democracy (Chapel Hill, NC, 1942), 124, quoted in Purcell, Crisis of Democratic Theory, 209. 22. Carl J. Friedrich, “Democracy and Dissent,” Political Quarterly (October– December 1939): 571–573, quoted in Purcell, Crisis of Democratic Theory, 213–214. 23. Boyd H. Bode, Democracy as a Way of Life (New York, 1937), 48, quoted in Purcell, Crisis of Democratic Theory, 210. 24. The conference was the second in a series of what became annual national gatherings of philosophers, theologians, social scientists and a sprinkling of natural scientists officially dedicated to the proposition that “modern civilization can be preserved only by a recognition of the supreme worth and moral responsibility of the individual human person.” As quoted by Margaret Mead, “The Comparative Study of Culture and the Purposive Cultivation of Democratic Values,” in Science, Philosophy, and Religion: A Symposium, ed. Lyman Bryson and Louis Finkelstein (New York, 1941), 57. In inception, it was an irenic effort on the part of its organizers to bring the scientific naturalists and the ethical absolutists into some sense of accord on the basic values of democracy. In practice, it appears to have widened the rift. A majority of the participants were of the religious, “absolutist,” persuasion and engaged in a degree of piling on against the “relativists.” Many scientific naturalists departed never to return, some even organizing counterconferences such as the Conference on the Scientific Spirit and Democratic Faith, first meeting in 1943. 25. Alain Locke, “Pluralism and Intellectual Democracy,” in Science, Philosophy and Religion: Second Symposium, ed. Lyman Bryson and Louis Finkelstein (New York, 1942), 196, 197, 200, 209. 26. Appendix to Ibid., 211. 27. Purcell, Crisis of Democratic Theory, 202. 28. The central documents for understanding Weber’s case for democracy are collected in Weber, Political Writings. On the present point, representative passages can be found on 15–16, 228, 355. 29. For able documentation of the importance of virtue in classical political liberalism, see Peter Berkowitz, Virtue and the Making of Modern Liberalism (Princeton, NJ, 1999). For the place of virtue in classical economic liberalism, see the essays collected in Istvan Hont and Michael Ignatieff, eds., Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (1983). 30. Subsequent theorists of liberal neutrality recognized the weakness of moral skepticism as a grounding for neutrality and sought instead to ground the ideal of state neutrality on a positive moral theory of the value of individual autonomy. But these defenses have not worn well, either. See Sher, Beyond Neutrality. 31. For a helpful historical overview of the use of the word “ideology” in the United States, see Job L. Dittberner, The End of Ideology and American Social Thought: 1930–1960 (Ann Arbor, MI, 1976). 32. As we will see in chapter 16, this tension between the academic and “lay” response to totalitarianism is one of the roots of the legal, political, and cultural conflicts that comprise the culture wars.

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10. Envisioning Interest Group Pluralism 1. Oddly, Purcell, who otherwise so brilliantly unpacked the social scientific debates of this period, passes over this genre of apologetics, which for a period was the most salient of all. 2. Kallen, “Freedom and Authoritarianism in Religion,” 3–5. 3. Whether this is really an accurate description of the scientific community is a separate issue. 4. See Richard Rorty, Contingency, Irony, and Solidarity (Cambridge, UK, 1989). 5. To a considerable extent, the pluralist vision could be melded with the scientific pragmatist vision. Indeed, the above quotation from Kallen, a dedicated pluralist, is a good illustration. Each reinforced the other in this seminal period. 6. John Gunnell notes this as well. “The ‘behavioral revolution’ of the 1950s . . . did not come on the scene as suddenly as is often assumed. The conversation out of which it most immediately sprang took form in the previous decade in the context of a debate about liberalism, relativism, science, and history.” Gunnell, The Descent of Political Theory, 141. 7. David Easton, “The Decline of Modern Political Theory,” Journal of Politics 13 (1951). See also David Easton, “Harold Lasswell: Policy Scientist for a Democratic Society,” Journal of Politics 13 (1951); Gunnell, The Descent of Political Theory, 228–234. 8. The distinction social scientists began to draw between “ideology” and “interests” is well illustrated in A. Sweitler, “Ideological Groups,” American Sociological Review 9 (August 1944). 9. For a brilliant and extremely influential elaboration of Hofstadter’s thesis, see Hartz, The Liberal Tradition in America. 10. See Richard Hofstadter, The American Political Tradition (New York, 1948) and The Age of Reform. See also the discussion of Hofstadter in Robert Allen Skotheim, Totalitarianism and American Social Thought (New York, 1971), 87–93. 11. See Daniel J. Boorstin, The Genius of American Politics (Chicago, 1953). 12. Quoted in Gary Wills, “The Secularist Prejudice,” Christian Century 107 (October 24, 1990): 969–970. 13. Hofstadter’s own immediate intellectual debts, which he openly acknowledged, were to political scientists, psychologists, and sociologists such as Seymour Martin Lipset, Harold Lasswell, Karl Mannheim, and especially Robert Merton. See Richard Hofstadter, “History and the Social Sciences,” in The Varieties of History: From Voltaire to the Present, ed. Fritz Stern (New York, 1956), 359–370. See also Joseph Singal, “Beyond Consensus: Richard Hofstadter and American Historiography,” American Historical Review 89 (1984): 976–981. 14. Quoted in Purcell, The Crisis of Democratic Theory, 255. Original reference to Benjamin F. Wright, Consensus and Continuity, 1776–1787 (Boston, 1958), 57. 15. Purcell, Crisis of Democratic Theory, 211. 16. See Dewey, Freedom and Culture.

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17. Purcell, Crisis of Democratic Theory, 215. 18. Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority (italics in original) (New York, 1969), 70, 288. 19. Arendt, The Origins of Totalitarianism. 20. See Ross, The Origins of American Social Science, 458–467. 21. V. O. Key, Jr., Politics, Parties, and Pressure Groups (1942; repr. New York, 1958), 10. 22. Carl J. Friedrich and Zbigniew K. Brzezinski, Totalitarian Dictatorship and Autocracy, 2nd ed. (1956; repr. Cambridge, MA, 1965), 6, 7. For a contrasting view on the history of the state concept—one that emphasizes the way in which the notion of “interests of state” was used by royal counselors to reign in the arbitrary rule of the monarch—see Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism before Its Triumph (Princeton, NJ, 1977). 23. Kenneth Crawford, “Washington Notes: National Unity,” New Republic, June 29, 1942, under the nom de plume “T R B.” Quoted in Pells, The Liberal Mind, 13. 24. Henry Steele Commager, Franklin Delano Roosevelt: A Memorial (New York, 1945), 214–215. 25. Hofstadter, The American Political Tradition, 316. 26. Not all historians went this far. For example, Schlesinger, who had not fully abandoned the progressive vision of history, emphasized Roosevelt’s leadership, although he hemmed it in with the suggestion that Roosevelt led by educating the public and (what is at best half-true) that Roosevelt would push things only as far as the people had been convinced. Schlesinger, The Coming of the New Deal, 558–559. Richard Neustadt was a similar exception among political scientists. 27. E. Pendleton Herring, Group Representation before Congress (Baltimore, 1929), 241. 28. Herring, Public Administration, 380. 29. Herring, Politics of Democracy, x. 30. Ibid., vii. 31. For an example of such silver-lining political science taken to extremes, see Seymour Lipset, Political Man (New York, 1960). 32. David Truman, “The Implications of Political Behavior Research,” Items (December 1951): 37–38, quoted in Ricci, The Tragedy of Political Science, 137. 33. Purcell, Crisis of Democratic Theory, 253. 34. Gunnell, The Descent of Political Theory, 142. 35. David B. Truman, The Governmental Process: Political Interests and Public Opinion, 2nd ed. (1951; repr. New York, 1971), xviii. Contra Truman, the push within political science to move beyond formal constitutional and institutional analysis goes all the way back to Woodrow Wilson’s influential 1887 article on administration. 36. It would be more accurate to say that prewar social scientists, unhappy with the

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state of American democracy, wished to use science for the sake of reform and oriented their research toward that end—which might well mean collecting social statistics (“mere facts”), with the intent that they be used by legislators, executives, and government agencies, or by philanthropists, churches, and other public-spirited associations, in the task of social reform. In contrast, postwar social scientists, generally content with the state of American democracy, were focused on providing a description (even if a rose-tinted description) of the governmental process itself. Nevertheless, each cohort could equally assert the ideals of positivism. 37. The term comes from Robert A. Dahl, A Preface to Democratic Theory (Chicago, 1956), 132. 38. Truman, The Governmental Process, xix. 39. See Charles Merriam, “Planning a Democracy,” in American Planning and Civic Annual (Washington, DC, 1940); and Charles Merriam, “The National Resources Planning Board,” Public Administration Review 1 (1940–1941). 40. Truman, The Governmental Process, xxxi. 41. Ibid., xix, xxxi, 397–398. 42. Ibid., 29–31. 43. Ibid., 50–51. 44. Truman, “The Implications of Political Behavior Research,” 37–38, quoted in Ricci, The Tragedy of Political Science, 137. 45. Truman, The Governmental Process, 49, 524. 46. Truman returns to this point repeatedly—in the preface, the first chapter, and the final chapter . . . in short, in all the places where the topic of the book is “motivated.” 47. Truman, The Governmental Process, 322–332. 48. Ibid., 519. 49. Ibid., 535. 50. Ibid., 51. 51. Ibid., 129, 159. 52. Dahl, A Preface to Democratic Theory, 32. 53. Ibid., 125, 128, 130, 131. 54. Ibid., 35, 43, 90, 133, 135. 55. Ibid., 132. 56. Ibid., 137, 143. 57. Robert A. Dahl, “Political Theory: Truth and Consequences,” World Politics 11 (1958), quoted in Gunnell, The Descent of Political Theory, 248. 58. The translation of pluralist theory into modernization theory is especially clear in the work of Gabriel Almond, the leading postwar scholar of comparative political development. Within the dichotomous framework of postwar social science, “modern” societies were those that operated in ways analogous to the United States, while “traditional” societies operated in ways analogous to totalitarian societies. See Ciepley, “Why the State was Dropped in the First Place: A Prequel to Skocpol’s ‘Bringing the State Back In,’” Critical Review 14 (2000).

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59. By and large, the criticisms apply mutatis mutandis to the leading successors to pluralism—rational choice and public choice theory—which are interested in the aggregation of preferences by political institutions, and which are in this regard merely more sociologically impoverished instantiations of the same set of theoretical assumptions and orientations. 60. See Peter Bachrach and Morton S. Baratz, “The Two Faces of Power,” American Political Science Review 56 (1962); and especially Steven Lukes, Power: A Radical View (London, 1974). 61. C. Wright Mills, The Power Elite (1956; repr. New York, 1978). 62. For a concise and forceful argument to this effect, see Larry Siedentop, “Liberalism: The Christian Connection,” Times Literary Supplement, July 1989. For a more extensive yet accessible treatment, see Francis Oakley, The Medieval Experience (Toronto, 1988). 63. For examples of wartime Catholic tracts emphasizing the connection between Catholic theology and liberal democracy, see the Conferences on Science, Philosophy and Religion in Their Relation to the Democratic Way of Life, published in a series of volumes from 1940 into the 1950s under this title. The essay by Yves R. Simon, “Thomism and Democracy,” in Science, Philosophy and Religion: Second Symposium, ed. Lyman Bryson and Louis Finkelstein (New York, 1942), is representative of the genre. 64. Skocpol, “Bringing the State Back In,” in Bringing the State Back In, 9. 65. Ibid., 9–14. 66. Weber, Political Writings, 104–105, 215. 67. Mark Petracca, “The Future of an Interest Group Society,” in The Politics of Interests: Interest Groups Transformed, ed. Mark Petracca (Boulder, 1992), 350. 68. Jack L. Walker, “The Origins and Maintenance of Interest Groups in America,” The American Political Science Review 77 (June 1983): 403.

11. Interest Group Pluralism Institutionalized 1. The language of “model of” and “model for” comes from Clifford Geertz, The Interpretation of Cultures (New York, 1973), chap. 4. 2. Lowi, The End of Liberalism, 75. 3. It is noteworthy that the same ideal of interest group pluralism that the Kennedy and Johnson administrations cultivated domestically also became the official guide for U.S. foreign aid programs in these years, culminating in Title IX, an amendment to the Foreign Assistance Act, titled “Utilization of Democratic Institutions in Development.” See Packenham, Liberal America and the Third World, 61–110, especially 62, 99–106. It should be noted that, despite the impact of pluralist theory on official aid doctrine, its impact on the actual disbursement of foreign aid appears to have been marginal, swamped by the Cold War logic of support for anticommunist movements and regimes. See Packenham, Liberal American and the Third World, 242–253. 4. Arthur Larson, A Republican Looks at His Party (New York, 1956), 9. Quoted

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in John B. Judis, The Paradox of American Democracy: Elites, Special Interests, and the Betrayal of Public Trust (New York, 2000), 74. 5. Lowi, The End of Liberalism, 71. 6. Arthur Schlesinger Jr., Kennedy or Nixon—Does It Make Any Difference? (New York, 1960), 43, quoted in Lowi, The End of Liberalism, 78. 7. Lowi, The End of Liberalism, 80. 8. Lowi himself called it “interest group liberalism.” 9. Terry M. Moe, “The Politics of Bureaucratic Structure,” in Can the Government Govern?, ed. John E. Chubb and Paul E. Peterson (Washington, DC, 1989). 10. Landis, The Administrative Process, 36. Quoted in Judis, The Paradox of American Democracy, 29. 11. Elmer Eric Schattschneider, The Semisovereign People: A Realist’s View of Democracy in America (New York, 1960), 35. 12. Quoted in Jonathan Rauch, Government’s End: Why Washington Stopped Working (New York, 1999), 275. 13. Mark A. Peterson, “Interest Mobilization and the Presidency,” in The Politics of Interests: Interest Groups Transformed, ed. Mark Petracca (Boulder, CO, 1992), 231. 14. Walker, “The Origins and Maintenance of Interest Groups,” 401. 15. Walker has found that, through 1980, fully 89 percent of citizens groups received financial support from outside their membership in their initial years, making such support one of the most important factors in the proliferation of such groups. Both government and elite foundations were main sources of these outside funds, ibid., 398. 16. Recent scholarship on the “principal-agent” problem also throws into question the extent to which interest group lobbyists always represent the interests of their constituents as opposed to the potentially divergent interests and agendas of the lobbyists themselves. See Rogan Kersh, “State Autonomy and Civil Society: The Lobbyist Connection,” Critical Review 14 (2000). 17. See Hunter, Culture Wars, 89–95. 18. Hugh Heclo, “Issue Networks and the Executive Establishment,” in The New American Political System, ed. Anthony King (Washington, DC, 1978). On “concatenations,” Robert H. Salisbury et al., “Triangles, Networks, and Hollow Cores: The Complex Geometry of Washington Interest Representation,” in The Politics of Interests: Interest Groups Transformed, ed. Mark Petracca (Boulder, CO, 1992). For a good overview, see Petracca, “The Rediscovery of Interest Group Politics,” 18. 19. For a survey and defense of this literature, see Andrew S. McFarland, “Interest Groups and the Policymaking Process: Sources of Countervailing Power in America,” in The Politics of Interests: Interest Groups Transformed, ed. Mark Petracca (Boulder, CO, 1992). 20. David Plotke, “The Political Mobilization of Business,” in The Politics of Interests: Interest Groups Transformed, ed. Mark Petracca (Boulder, CO, 1992); Judis, The Paradox of American Democracy, chaps. 5–6. 21. Rauch, Government’s End, 159.

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22. In addition to ibid. and Mancur Olson, The Rise and Decline of Nations (New Haven, CT, 1982). See John E. Chubb and Paul E. Peterson, eds., Can the Government Govern? (Washington, DC, 1989); and the conclusions drawn by the editors of important recent collections, Allan J. Cigler and Burdett A. Loomis, eds., Interest Group Politics, 5th ed. (Washington, DC, 1998), 27–29; and Mark Petracca, ed., The Politics of Interests: Interest Groups Transformed (Boulder, CO, 1992), 354–355. 23. See, for example, John W. Kingdon, Agendas, Alternatives, and Public Policies (Boston, 1984). 24. Quoted in Paul E. Peterson, “The Rise and Fall of Special Interest Politics,” in The Politics of Interests: Interest Groups Transformed, ed. Mark Petracca (Boulder, CO, 1992), 326. 25. Ibid., 327. 26. Quoted in Rauch, Government’s End, 156. 27. Ibid., 149. 28. For a brief scorecard on these attempts to trim fat from the government budget, see ibid., 180, and chap. 7. 29. See, for example, the study done by Wahlke, Eulau, Buchanan, and Ferguson, cited by Truman in his 1970 “Introduction” to The Governmental Process, 2nd ed.

12. Totalitarianism and the Rediscovery of Civil Liberties 1. Which is not to say it was completely silent. For example, Meyer v. Nebraska (1923) struck down a prohibition on teaching modern foreign languages to grade-school students, and Pierce v. Society of Sisters (1925) overturned an anti-Catholic Oregon law requiring students to attend public schools. 2. Steel, Walter Lippmann, 216–217. 3. Robert A. Dahl, A Preface to Democratic Theory (Chicago, 1956), 58–59. By the time Dahl wrote this, the tide had begun to turn. National legislation had yet to be struck down in these areas, but the Court had struck down a number of state laws by this time. 4. Foner, The Story of American Freedom, 25. 5. Donald S. Lutz, A Preface to American Political Theory (Lawrence, KS, 1992), 75, and chap. 3 generally. 6. This is not to deny that there were some who fought for freedom of speech and religion at the state level, as the efforts of Jefferson and Madison in Virginia make clear. 7. On this and other points in the present paragraph, see Barry Alan Shain, The Myth of American Individualism (Princeton, NJ, 1994). Also James Block, A Nation of Agents (Cambridge, MA, 2002). 8. Shain, The Myth of American Individualism, 91–92. 9. For expressions of American Whig social philosophy, see the remarkable and underappreciated American Whig Review. 10. Foner, The Story of American Freedom, 169–193.

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11. Opposition was not entirely absent, but most of the opposition was located among radicals, cultural bohemians, and cultural pluralists such as Randolph Bourne and Horace Kallen, and their associates such as Dewey. 12. Michael J. Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” Virginia Law Review 82 (1996): 39. 13. Brinkley, Liberalism and Its Discontents, 34. 14. Foner, The Story of American Freedom, 201–202. 15. Ibid., 170. 16. This was not true of the war against the Japanese, who were routinely portrayed in the political cartoons of the period as uniformed monkeys and apes— imagery readily transposed from caricatures of African-Americans. The Japanese returned the favor, portraying Americans as horned demons. See John W. Dower, War Without Mercy (New York, 1986). 17. Lutz, A Preface to American Political Theory, 77. 18. Foner, The Story of American Freedom, 163, 217. 19. Minersville School District v. Gobitis, 310 U.S. 586 (1940). 20. Thanks to Michael Klarman for this detail. 21. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). 22. Richard Primus, “A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought,” The Yale Law Journal 106 (November 1996): 445. 23. Chambers v. Florida (1940). 24. Fay v. Noia (1963). 25. Lucas A. Powe, Jr., The Warren Court and American Politics (Cambridge, MA, 2000), 106. 26. Alderman et al. v. United States (1969). See also Berger v. New York (1967), Douglas concurring; and Ker et Ux. v. California (1963), Brennan dissenting. For an early invocation of totalitarianism in a search and seizure case, see the dissent of Frankfurter in Davis v. United States (1946). 27. Terminiello v. Chicago, 337 U.S. 1, 4 (1949). See also, Douglas concurring in Russell v. United States (1973). 28. See the various opinions in Dennis v. United States (1951). 29. For example, the Court ended the practice, which had become quite widespread on the back of the eugenics movement, of sterilizing criminals, in Skinner v. Oklahoma (1942), with a decision cast in antitotalitarian, anti-Nazi terms. See also the civil rights cases discussed below. 30. Kevin J. McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago, 2004), 123. 31. Powe is primarily responsible for bringing attention to the geographic specificity of the Warren Court’s constitutional initiatives, although he passes over the rhetoric of antitotalitarianism that pervades them. See Powe, The Warren Court and American Politics. On the Cold War imperative, see Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton, NJ, 2000). 32. McMahon, Roosevelt on Race, 106–143, 147, 158. 33. Ibid., 17.

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34. Dudziak, Cold War Civil Rights, 9. 35. McMahon, Roosevelt on Race, 162, chap. 6. Dudziak, Cold War Civil Rights. 36. Discussed in Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961 (Oxford, 1994), 213. 37. Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” 42. 38. Ibid., n282. 39. In this last case, the Court did leave open Congress’s right to formally expel Powell by a two-thirds vote. 40. John T. McGreevy, Catholicism and American Freedom (New York, 2003), chap. 6. 41. Of the justices then sitting on the Court, at the least, Black, Douglas, Rutledge, Burton, and Frankfurter all found anti-Catholicism a respectable postwar prejudice and privately made anti-Catholic comments of one shade or another in this period. Ibid., 184–185. 42. Ibid., 182. 43. Ibid., 184. 44. The thaw is well evidenced in Will Herberg, Protestant-Catholic-Jew (Garden City, NY, 1960). 45. Powe, The Warren Court and American Politics, 493. 46. Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” 16–17. 47. Thomas M. Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago, 2004), 53, 93–97. 48. See the discussion in Powe, The Warren Court and American Politics, 392–399. 49. See Klarman, “Brown, Racial Change, and the Civil Rights Movement,” Virginia Law Review 82 (1996) for a thickly contextualized, and much more modest, account of the contribution of the Brown v. Board decision to the cause of civil rights.

13. The Rise and Fall of Judicial Review before World War II 1. These include the apportionment of seats in state legislatures (Baker v. Carr [1962] and Reynolds v. Sims [1964]); district delineation; political party membership (Smith v. Allwright [1944], striking down the Texas “White Primary”); rules of campaign finance (Buckley v. Valeo [1976]); primary formats; and, most recently, rules for manual recounts in presidential elections (Bush v. Gore [2000]). 2. Robert G. McCloskey, The American Supreme Court (Chicago, 1960), 23. 3. Ibid., ix. 4. For an account of the early testing of this independence, see Peter Irons, A People’s History of the Supreme Court (New York, 1999), 108–110. 5. Silverstein, Constitutional Faiths. 6. Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (Ithaca, NY, 1955). 7. On the notion of “Axial” civilizations, see Karl Jaspers, Von Ursprung und Ziel der Geschichte (Munich, 1945), and S. N. Eisenstadt, ed., The Origins and Diversity of Axial Age Civilizations (Alabany, NY, 1986).

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8. See the “Massachusetts Body of Liberties” (1641), reprinted in Lutz, Colonial Origins of the American Constitution. 9. On these points, see Wood, The Creation of the American Republic, 139, 148, 161. 10. See Ibid., chap. 10. 11. The Federalist, Number 78. 12. On the “will theory,” see Roscoe Pound, “The End of Law as Developed in Juristic Thought II: The Nineteenth Century,” Harvard Law Review 30 (1917). The quote from Justice Field is from McCloskey, The American Supreme Court, 137. 13. Howard Gillman, The Constitution Besieged (Durham, NC, 1993). 14. It is a debated question whether American judges, in contrast to European jurists, ever practiced, or even idealized, the mechanical jurisprudence of which they were accused. One possible American exponent is Christopher C. Langdell, dean of Harvard Law School in the 1870s. See Thomas Grey, “Langdell’s Orthodoxy,” University of Pittsburgh Law Review 45 (1983). 15. Oliver Wendell Holmes Jr., The Common Law (Boston, 1881), 1. 16. Hessel E. Yntema, “The Hornbook Method and the Conflict of Laws,” Yale Law Journal 37 (February 1928): 480. 17. Jerome Frank, Law and the Modern Mind (New York, 1930), 125. 18. Quoted in Silverstein, Constitutional Faiths, 72. 19. Yntema, “The Hornbook Method,” 479. 20. Felix Cohen, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935). 21. See Holmes’s pathbreaking 1894 article, “Privilege, Malice, and Intent,” in Oliver Wendell Holmes Jr., Collected Legal Papers (Buffalo, NY, 1985), 117. 22. Duncan Kennedy, A Critique of Adjudication: Fin de Siècle (Cambridge, MA, 1997), 87. 23. See, for example, Robert Hale, “Coercion and Distribution in a Supposedly Non-coercive State,” Political Science Quarterly 38 (1923): 478–481; and Felix Cohen, “Property and Sovereignty,” Cornell L. Q. 13 (1927). 24. The theory that all law is the creation of the sovereign—what has come to be known as “legal positivism”—has been available as an interpretation of national legal orders since the Lutheran Reformation. This would appear already to subordinate law to politics. However, on the Lutheran understanding (which came to be widely disseminated), conscience protected a sphere of private property and contract, and this preserved the notion of higher law. See Berman, Law and Revolution, 29–30. The solvent of sociological jurisprudence stripped away this protection. 25. United States v. Carolene Products (1938). 26. Laid out in a line of cases from NRLB v. Jones and Laughlin Steel Corporation (1937) to Wickard v. Filburn (1942). 27. Helvering v. Davis (1937); Steward Machine Co. v. Davis (1937). 28. Cass R. Sunstein, “Constitutionalism after the New Deal,” Harvard Law Review 101 (1987): 425:

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In the New Deal period, the original constitutional framework was thus reformulated in three fundamental ways. The New Deal set out a different conception of legal rights, rejecting common law and status quo baselines for deciding what constituted governmental “action” and “inaction”; it proposed a dramatically different conception of the presidency and a novel set of administrative actors; and it rejected traditional notions of federalism. The term “New Deal constitutionalism” describes the resulting structure. 29. Franklin D. Roosevelt, Public Papers and Addresses of Franklin D. Roosevelt, vol. 6, 1937 (New York, 1941). 30. See, for example, Banco Nacional de Cuba v. Sabbatino (1964).

14. The Neutrality Ideal Comes to Court 1. Sandel, Democracy’s Discontent, 56. 2. Ibid., chaps. 2 and 3. 3. “[L]iberalism describes a tradition of thought that emphasizes toleration and respect for individual rights and that runs from John Locke, Immanuel Kant, and John Stuart Mill to John Rawls. The public philosophy of contemporary American politics is a version of this liberal tradition of thought, and most of our debates proceed within its terms.” Ibid., 4–5. 4. John Locke, A Letter Concerning Toleration (Indianapolis, 1983), 46. 5. Ibid., 49. 6. See also Jean-Jacques Rousseau, The Basic Political Writings (Indianapolis, 1987), 226, and David Hume, A Treatise of Human Nature (London, 1975), 455. The same is also true for Kant and Mill. 7. Gabriel A. Almond, The Appeal of Communism (Princeton, NJ, 1954), 374, quoted in Purcell, Crisis of Democratic Theory, 288. 8. Quoted in Purcell, Crisis of Democratic Theory, 214. John Rawls is the person whose name is most closely associated with the neutrality ideal in its high philosophical form. For a pioneering account that places Rawls in the antitotalitarian conceptual milieu of the Public Choice Society, see Amadae, Rationalizing Capitalist Democracy, chap. 8. 9. Edward A. Shils, The Constitution of Society (Chicago, 1982), chap. 10, “Intellectuals and the Center of Society in the United States.” 10. Peller, “Neutral Principles in the 1950s,” 588. 11. Quoted in Purcell, Crisis of Democratic Theory, 162. 12. Karl N. Llewellyn, “On Reading and Using the Newer Jurisprudence,” Columbia Law Review 40 (April 1940): 603; quoted in Purcell, Crisis of Democratic Theory, 172. See also Primus, “A Brooding Omnipresence,” 429–434. 13. See, for example, Frankfurter’s Harvard Law Review article of 1916, collected in Philip Kurland, ed., Felix Frankfurter on the Supreme Court (Cambridge, MA, 1970). 14. Wills, A Necessary Evil, chap. 4. 15. See, for example, Louis Michael Seidman and Mark V. Tushnet, Remnants of Belief: Contemporary Constitutional Issues (New York, 1996), 33.

362

Notes to Pages 268–278

16. Felix Frankfurter and James Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (New York, 1928), 310. 17. Twining v. New Jersey, 211 U.S. 78, 106 (1908). 18. Palko v. Connecticut, 302 U.S. 319, 321 (1937). 19. Note that I am not contending that these provisos were met, or have subsequently been met. We are speaking in hypotheticals. 20. Kennedy, A Critique of Adjudication, 118. See Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, CT, 1921). 21. Sandel, Democracy’s Discontent, 49. 22. Quoted in McMahon, Reconsidering Roosevelt on Race, 105, from a letter Stone wrote the day after delivering his Carolene Products decision. 23. Powe, The Warren Court, 489; also, 214–216, 487–489. 24. Silverstein, Constitutional Faiths, 80. 25. Frankfurter’s ideal, it bears remarking, was also very close to the ideal advanced by Roscoe Pound, Frankfurter’s early hero, of the judge as “social engineer.” See Pound, “The Theory of Judicial Decision,” in Silverstein, Constitutional Faiths, 68. 26. Quoted in Silverstein, Constitutional Faiths, 152–153. 27. For examples of these uses, see ibid., 158–160. 28. Malinski v. New York (1945). 29. Quoted in Silverstein, Constitutional Faiths, 158. 30. Louisiana ex rel Francis v. Resweber (1947). Quoted in ibid., 162. 31. Thus, despite Black’s reputation as a leading Court liberal, he was an opponent of granting a constitutional right to privacy, since it was not to be found in the express language of the Bill of Rights or anywhere else in the Constitution. 32. Silverstein, Constitutional Faiths, 183. 33. The charges of “formalism” that one still hears in postwar American legal discourse arise only from differences over the degree to which policy ought to determine a decision. On the success of the critique of formalism in the United States, in contrast to its continued presence in Europe, see Kennedy, A Critique of Adjudication, 105–107. 34. See Silverstein, Constitutional Faiths, 142. 35. Melvin I. Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties (Boston, 1991), 56. 36. See, for example, Black’s dissent in Beauharnas v. Illinois, 34.3 U.S. (1952) at 274: “I think the first Amendment, with the Fourteenth, ‘absolutely’ forbids such laws without any ‘ifs’ or ‘buts’ or ‘whereases.’ ” 37. Among the extratextual standards, Silverstein notes that, for Black, “due process was violated by vague and indefinite statutes, by a conviction without evidence, and by judgment rendered by a judge who had an interest in the outcome of the case.” Silverstein, Constitutional Faiths, 172. 38. Keck, The Most Activist Supreme Court in History, 50. 39. Cited in ibid., 54.

Notes to Pages 278–290

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40. Quoted and discussed in Robert G. McCloskey, “Economic Due Process and the Supreme Court: An Exhumation and Reburial,” The Supreme Court Review (1962): 38–44. 41. Learned Hand, The Bill of Rights (Cambridge, UK, 1958). 42. See the biographical sketches in Arnold S. Rice, The Warren Court, 1953–1969 (New York, 1987). 43. This is a recurrent theme in Powe, The Warren Court. 44. Ibid., 496.

15. Neutrality and the Due Process Revolution 1. Quoted in William N. Eskridge, Jr. and Philip P. Frickey, “An Historical and Critical Introduction to The Legal Process,” in The Legal Process: Basic Problems in the Making and Application of Law, ed. Henry M. Hart, Jr. and Albert M. Sacks (Westbury, NY, 1994), lxxxiv. 2. Quoted in Gary Peller, “Neutral Principles in the 1950’s,” Michigan Journal of Law Reform 21 (1988), 568. 3. Eskridge, Jr. and Frickey, “An Historical and Critical Introduction to The Legal Process,” lxxxiv. 4. Helpful discussion relating to this and the following several paragraphs can be found in ibid. 5. For a cogent critique of the neutralist pretensions of “coherence theories” of adjudication—a category that includes almost all of the liberal theoretical reconstructions of the law since the rise of legal realism—see Duncan Kennedy, A Critique of Adjudication: fin de siecle (Cambridge, MA, 1997) 117–130. 6. Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959), 15–16. Contra Wechsler, it may be asked whether reason-giving is something the Court does precisely because its authority is precarious, rather than something that it does by nature that justifies ceding more authority to it. 7. See especially the work of Nozick, Dworkin, and Ackerman. 8. Peller, “Neutral Principles in the 1950’s,” 602. 9. Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Westbury, NY, 1994), 207–365; summarized by Peller, “Neutral Principles in the 1950’s,” 597–598. 10. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA, 1980). 11. Peller, “Neutral Principles in the 1950’s,” 591. 12. Louis Michael Seidman and Mark V. Tushnet, Remnants of Belief: Contemporary Constitutional Issues (New York, 1996), 180. 13. The empiricist interpretation of trials is subject to question from both sides: first, fact-finding is not an open-ended inductive process, but is subject to numerous court restrictions on the kinds of evidence that are admissible; sec-

364

Notes to Pages 290–298

ond, as psychological studies suggest, there may be no such thing as a “suspended judgment,” with all judgment subject to various presumptions and cognitive filters. Certainly judgment is subject to revision in the face of fact and argument, but it happens in a much more complicated way than empiricism suggests. 14. See the discussion of Brown in Richard H. Gaskins, Burdens of Proof in Modern Discourse (New Haven, CT, 1992), 54–57. 15. Bolling v. Sharpe, 347 U.S. 497, 499, 500 (1954). 16. Gaskins, Burdens of Proof in Modern Discourse, 37. 17. Martin v. Struthers, 318 U.S. 141 (1943). 18. Quoted in Mark Silverstein, Constitutional Faiths: Felix Frankfurter, Hugo Black, and the Process of Judicial Decision Making (Ithaca, 1984), 188. 19. Ibid., 188. 20. From Thomas v. Collins, 323 U.S. 516, 529 (1945), as quoted in ibid., 186. For Frankfurter’s remarkable rebuttal of the “preferred position” doctrine by way of a summary history of the Court’s free speech holdings, see his concurring opinion in Kovacs v. Cooper, 336 U.S. 77 (1949). 21. See Shapiro v. Thompson (1969) as the case that consolidated this equal protection strategy. 22. Gaskins, Burdens of Proof in Modern Discourse, 80. 23. See Part III. 24. Useful overviews of the conceptions of democracy held by the various justices can be found in Howard Ball, The Warren Court’s Conceptions of Democracy: An Evaluation of the Supreme Court’s Apportionment Opinions (Madison, 1971). 25. From Wyman v. James, 400 U.S. 309, 335 (1971), quoted in James O. Freedman, “Crisis and Legitimacy in the Administrative Process,” Stanford Law Review 27 (1975), 1067–1068. See also Stewart, “The Reformation of American Administrative Law,” Harvard Law Review 88 (1975). 26. Gaskins, Burdens of Proof in Modern Discourse, 7, 93. 27. For good examples, see Gary C. Bryner, Bureaucratic Discretion: Law and Policy in Federal Regulatory Agencies (1987). 28. Barry Feld, Bad Kids: Race and The Transformation of the Juvenile Court (New York, 1999); C. P. Manfredi, The Supreme Court and Juvenile Justice (Lawrence, KS, 1998). 29. See, for instance, Frank Anechiarico and James B. Jacobs, The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective (Chicago, 1996), xi–xii: “Public administration scholars, the media, and the general public increasingly denounce government as inefficient, wasteful, and unresponsive. While many factors are responsible for the current crisis in public administration, we argue in this book that the pursuit of corruption-free government by means of more rules, procedures, and organizational shuffles is also an important contributing factor. It should not be assumed, as it often has been, that all corruption controls further or even coincide with governmental efficiency and effectiveness, or that such measures actually reduce corruption.”

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30. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) striking down a minority “set aside” program for federal government contracts; and Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2580 (1996), striking down affirmative action programs at the University of Texas.

16. Neutrality, Civil Liberty, and the Culture Wars 1. Holmes, dissenting in Abrams v. United States (1919): When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct . . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground on which their wishes safely can be carried out. That at any rate is the theory of our Constitution. See also Brandeis, dissenting in Whitney v. California (1927). 2. Reviews by Democratic Party organs took particular umbrage at the notion of the tyranny of the majority. See The Democratic Review of October 1837, 91–107, and July 1838, 337–356; and The Knickerbocker, September 1838, 256–260. Whig reviewers, probably more sympathetic, simply passed over these passages in silence. See The American Whig Review, July 1836, 178–206; and The New York Review, July 1840, 233–248. 3. Urofsky, Felix Frankfurter, 52. 4. Hunter, Culture Wars, 203–205. 5. See the writings of Rawls, Dworkin, and Ackerman, among others. 6. Lawrence M. Friedman, The Republic of Choice: Law, Authority, and Culture (Cambridge, MA, 1994), 8–9 (italics in original). 7. Charles Taylor, Multiculturalism and the Politics of Recognition (Princeton, NJ, 1992). 8. Friedman, The Republic of Choice, 70. 9. Daniel Bell, The Cultural Contradictions of Capitalism (New York, 1976). 10. For a concise overview of the sociological conception of the self as developed in the United States in particular, see Hans Joas, The Genesis of Values (Chicago, 2000), 149–154; Joas also notes its precipitous decline after World War II. 11. Quoted in McGreevy, Catholicism and American Freedom, 187. 12. Silverstein, Constitutional Faiths, 190–191. 13. Sandel, Democracy’s Discontent, 71. Quotations from Young v. American Mini Theatres, Inc., 427 U.S. 50, 67 (1976); Herbert v. Lando, 441 U.S. 153, 184–185 (1979), Justice Brennan dissenting; and Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95 (1972). 14. Ibid., 75, citing R. A. V. v. City of St. Paul, Minnesota, 112 S. Ct. 2538, 2541, 2549 (1992). 15. Collin v. Smith, 447 F. Supp.676 (1978); Collin v. Smith, 578 F.2d 1197 (1978). 16. Sandel, Democracy’s Discontent, 90.

366

Notes to Pages 308–317

17. See the sweeping language of Thurgood Marshall in Stanley v. Georgia (1969), subsequently cabined in Miller v. California (1973) and Paris Adult Theatre v. Slaton (1973). 18. Sandel, Democracy’s Discontent, 76. 19. New York v. Ferber (1982). 20. Ashcroft v. Free Speech Coalition (2002). 21. Reno v. ACLU (1997); Ashcroft v. ACLU (2004). However, a law requiring public libraries and schools receiving federal dollars to install filtering software has passed constitutional muster. United States v. American Library Association, Inc. (02–361) (2003). 22. Sandel, Democracy’s Discontent, 93. 23. Doe v. Bolton, 410 U.S. 179, 211 (1973), Justice Douglas concurring. Quoted in ibid., 92–93. 24. Planned Parenthood v. Casey, 505 U.S. 833 (1992). Quoted in ibid., 99. 25. It bears noting that my criticism of the autonomistic argument for abortion rights, and of the whole “choice” rhetoric associated with it, does not necessarily entail a critique of the practice of abortion. For those who do not believe that either biology, semantics, or tradition forces one to the conclusion that human life begins at conception, reasons besides respect for individual autonomy may yet lead one to favor legal access to abortion—such as the human cost, for parent, child, and society, of children coming into the world who are unwanted. 26. Sandel, Democracy’s Discontent, 109, quoting Lenore J. Weitzman, The Divorce Revolution (New York, 1985), 24. The term “silent revolution” comes from Herbert Jacob, The Silent Revolution (Chicago, 1988). 27. On the distinction between national class and local class, see Robert H. Wiebe, Self-Rule: A Cultural History of American Democracy (Chicago, 1995). 28. David Nevin and Robert E. Bills, The Schools That Fear Built (Washington, DC, 1976). 29. Marsden, Fundamentalism and American Culture. 30. Tim LaHaye, The Battle for the Mind (Old Tappan, NJ, 1980), chap. 4. 31. Hunter, Culture Wars, 150. 32. Marsden, Fundamentalism and American Culture, 80–93. 33. Pew Forum Event Transcript, “Myths of the Modern Mega-Church,” Monday, May 23, 2005, Key West, Florida. Accessed at www.pewforum.org/events/ index.php?EventID=80 34. Hunter, Culture Wars.

Conclusion 1. Rodgers, Atlantic Crossings, 502. 2. Exception must be made for Reinhold Niebuhr, but he commended the “transcendent” to the country so as to underscore human finitude and the totalitarian dangers of utopianism and moral certitude. This makes him the exception that proves the rule. 3. John F. Kennedy, “Yale Commencement Speech,” The New York Times, (June 12, 1962): 20.

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4. Theodore Roszak, The Making of a Counter Culture: Reflections on the Technocratic Society and Its Youthful Opposition (Garden City, NY, 1969), xiii, 5, 7. 5. Croly, The Promise of American Life, 22. 6. Eisenach, The Lost Promise of Progressivism, 218–219. 7. In addition to examples cited in chapter 15, one thinks of the assault on the “liberal media” and the “liberal university” for failure to give equal time to opposing views, regardless of their relative evidential and inferential solidity. The progressive ideal of objectivity succumbs to the neutralist ideal of “balance.” 8. See the magisterial introductory chapter in S. N. Eisenstadt, Power, Trust and Meaning: Essays in Sociological Theory and Analysis (Chicago, 1995). 9. See Michael Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge, UK, UK, 1998), especially chap. 1; and Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, MA, 1989).

Index

Absolutism (moral), 185, 187–188, as leading to totalitarianism, 22, 29, 188–193, 197, 204, 248, 265, 266, 313, 316. See also Natural law; Relativism (moral) Absolutism (judicial), 266, 270, 277, 292 Adams, Henry Carter, 10, 52–53, 60, 61, 65, 98, 100 Adams, John Quincy, 47–48, 63, 116 Administration: distinguished from politics, 58–59, 70, 124–125; to replace markets, 76, 99–100 Administrative state, 17, 42–44, 56–59, 236, 321; industrialism and need for, 17, 38, 50, 320; flight from, 20, 157–160, 183, 319; and democracy, 49–50, 125. See also Civil service reform; State; Statebuilding; State of courts and parties Administered prices, 105–107, 147, 150, 340n17 Agriculture Adjustment Administration (AAA): success of, 10, 86, 114, 119–120, 177; as expert-guided, 96, 110–114, 138; rationale for, 107, 111; contrasted with NRA, 110, 111–112; importance attributed to, 111; Tocquevillian structure of, 113; reconstitution of, 114–115, 132, 218; efforts to replicate, 120, 147, 148–149; as totalitarian, 129 Agencies. See Independent agencies and commissions American Economic Association (AEA), 57, 59, 60, 76 American Revolution. See War of Independence

Anti-Catholicism, 247–249, 306, 359n41. See also Catholic totalitarianism Antistatism, 17, 31, 68, 167, 185, 318–320, 333n23, 344n10 Articles of Confederation, 44–45 Associationalism, 53, 74–75, 101, 121, 170. See also Hoover, Herbert Balance of power. See Separation of powers Baruch, Bernard, 98, 102, 165 Beard, Charles, 74, 101, 200 Behavioralism, 197, 204–205 Berle, Adolf, 99, 105, 150, 177, 339n27 Bill of Rights: 150th anniversary of, 24, 237; incorporated by the Court, 24, 232, 241, 275–276, 303; and antitotalitarianism, 24, 233, 239, 242, 268, 303; and ratification, 45, 233, 257; for GIs, 168; and postwar liberalism, 231–232. See also Civil liberties; Economic Bill of Rights Bills of rights: first, 44, 254 Black, Hugo, 140, 240, 241, 242, 243, 246, 248, 272–277, 279, 292–293, 295, 302, 303, 304, 359n41, 362n31 Brandeis, Louis, 65, 98, 104, 138, 146–147, 148, 302. See also Neo-Brandeisians Brinkley, Alan, 83, 89, 90, 154, 338n12 Brownlow, Louis, 126, 144 Brown v. Board of Education, 250, 251, 278, 287, 290; and totalitarianism, 246; reaction of legal establishment to, 277–278 Budget balancing, 94, 134, 148, 150, 152

369

370

Index

Budget bureau, 18, 84, 124, 144, 171, 179. See also Office of Management and Budget Burden of proof shifting, 289–294; conservatives use of, 298–299 Cardozo, Benjamin, 138, 269, 274, 284 Catholic Church, 27; and state-building, 40, 41; and dogmatism, 188 Catholic intellectuals: and critique of relativism, 185, 187, 188, 248; and liberal democracy, 187, 214, 355n63; and culture wars, 312 Catholic totalitarianism, 189, 247–250. See also Anti-Catholicism Chambers of Commerce: and cooperative economy, 100; and antitotalitarianism, 140, 141, 169 Character formation, 13, 34, 62, 93, 96, 104, 192, 211; New Deal and, 96, 104, 117, 119–120, 196; rejection of, 190, 234, 315. See also Virtue politics; Moral uplift Chase, Stuart, 74, 101, 108, 156, 163, 337n52 Civil libertarianism, 68, 231, 233, 277; as antitotalitarianism, 2, 24, 25, 237–245; and neutralism, 301, 303, 304 Civil liberties, 12, 26, 327n1; antitotalitarian revival of, 23–24, 25, 236, 237–244, 268; neutralism’s radicalization of, 25, 26, 251, 303, 304, 306–311, 317; and economic planning, 161–162; and interest groups, 209; and culture wars, 231, 311; Court’s late conversion to, 232, 251, 260; and democracy, 232, 301–302; brief history of, 232–238; progressives and, 235, 315; Franklin Roosevelt and, 244–245; South and, 244–247, 271; protected by Court through burden shifting, 291–293 Civil rights, 26, 257, 311, 317; contrasted with Hitlerism, 204, 237, 245–247, 308; partisan interest in, 236–237, 244, 247 Civil service reform, 39, 56, 58, 65, 127, 137, 144 Classical republicanism, 2, 29, 44, 63, 234 Clay, Henry, 47–48; and internal improvements, 43, 47, 49, 116 Clinton, William J., 3, 95, 226–227

Cold War: and social control, 22; impact on social science of, 22, 179–180; and New Left, 318–319 Committee for Economic Development (CED), 173 Common law: as regulatory, 4, 50, 52, 81–82; as ground of judicial review, 24, 25, 256, 259–260, 269; as moral tradition, 29, 234, 291; as natural and neutral, 256, 268; legal realist critique of, 258, 268, 270, 280, 283, 291; judicial construction of, 285 Communism: as defining Other, 1, 2, 9, 19, 184, 244, 319; as denunciatory label, 3, 4, 129–130, 141, 157, 313; and national security state, 172–175; as godless, 193; and labor union democracy, 339n34 Communism cases: Supreme Court decisions on, 239, 243 Communitarianism, 31, 329n22 Comparative politics, 184, 355n58 Compensatory state, 20, 54, 95, 97, 110, 167, 177. See also Economic relief; Fiscal compensation; Social insurance; Social Security Act Competition-inducing state, 97. See also Monopoly; New Freedom; NeoBrandeisians Congress: and interest groups, 23, 218, 219, 221, 222, 224–225, 227, 228; and patronage politics, 49, 57, 61; relations with executive, 65, 66, 90, 97, 118, 125, 127, 128, 137, 144, 145, 170, 213; antiNew Deal, 94, 119, 120, 140, 155, 164, 169–170, 171, 244; relations with court, 135, 247, 251, 279 Consensus theory, 199, 212, 214. See also Process theory Conservation, 54, 65, 72, 114–115, 116–117, 127, 157 Conservatism: cultural, 3–4, 5, 22, 23, 188, 313; economic, 59, 178, 258; social, 204, 295 Constitutionalism. See Judicial review; Value-neutral science Cooperation as alternative to competition, 51, 53, 62, 71, 69, 73, 89, 148, 153, 161, 180. See also Associationalism; Cooperative commonwealth

Index Cooperation as alternative to statism, 154, 161, 165, 166, 195. See also Interest group pluralism Cooperative commonwealth, 63, 67, 75, 86, 96, 97, 98, 100, 108, 110, 146, 147, 150, 166, 176; origins in progressive economics, 51, 53. See also Associationalism; Corporatist state; Overhead planning state Corporatist state, 96. See also National Recovery Administration; Cooperation as alternative to competition Coughlin, Charles, 132, 142, 144 Council of Economic Advisers, 84, 171 Court packing plan, 135, 138–139, 236, 344n12 Criminal procedure: reform of, 240–241, 246, 250–251, 294, 299; as due process standard, 297, 299 Croly, Herbert, 13, 30, 53, 64, 65, 66, 69, 70, 73, 98, 124, 314, 318, 324 Culture: capitalist, 198; democratic, 199–200, 209, 214; scientific/experimental, 200; secular/skeptical, 200, 214; as opposed to ideology, 204, 212; authoritarian, 248 Culture wars, 22, 118, 214, 320, 352n32; Court’s role in sparking, 26, 231, 304, 311–312; influence of Catholic intellectuals on, 312; reproducing debate over totalitarianism, 312–313; possibility of overcoming, 314 Currie, Lauchlin, 121, 149–150, 152, 156, 168, 169, 171 Dahl, Robert, 178, 206, 209–212, 215, 221, 232 Democracy: reinterpretation of, 1, 21–23, 29, 184, 192, 316; progressives’ disillusionment with, 21, 69–70; antitotalitarian re-embrace of, 21, 77, 202–204; freedom eclipses as credo, 24, 238, 316; and human perfectibility, 30; Puritans and, 43; European comparison, 49–50; progressive agenda for reforming, 70, 77, 126, 156; turn against reform of, 144, 156–162; relation to economy, 159; tension of social scientific expertise with, 160–161; as scientific laboratory, 195–196; liberal disillusionment with,

371

295–296; totalitarian tendencies within, 302. See also Interest group pluralism; Party government; Process theory Democratic Party: and cultural Left, 3, 4, 314; traditional economic individualism of, 92; and local self-determination, 234, 365n2; Roosevelt’s plan to make liberal, 236, 247; and Supreme Court, 249 Depression. See Great Depression Development state, 38, 97, 128, 135, 176. See also Economic promotionalism; Executive reorganization; National Resources Planning Board; Public works; Tennessee Valley Authority Dewey, John, 64, 69, 70, 72, 101, 108–109, 158, 188–189, 191, 195, 196, 199, 248, 301, 358n11 Due process, 24, 25; as protecting private property, 139, 256; as undefined standard, 255–256, 269, 275, 277; substantive vs. procedural, 266, 296. See also Due process revolution Due process revolution, 261: and burden shifting, 293–294, 296–298; downsides to, 297–298; conservative appropriation of, 299 Eastman, Max, 108, 159 Economic Bill of Rights, 166–168, 170 Economic promotionalism, 4, 46, 47, 63, 74–75, 96, 319, 321 Economic recovery: See Great Depression Economic relief, 20, 93–95, 168. See also Agriculture Adjustment Administration Economic security, 3, 92, 168, 236, 237 Economics, 7–8, 10–11, 21, 33, 177–178; origins of American, 59, 60–61; neoclassical, 10–11, 19; Austrian, 19, 156–157; institutional, 75–77, 101, 178; German, 38, 59–61, 65; agricultural, 110–113, 115; rightward shift of, 177; changing institutional support for, 178–180. See also Keynesianism; Marxism Efficiency: administrative, 18, 49, 57, 59, 125, 136–137; national, 68–69, 72–75, 115, 116; totalitarian, 88; eclipsed by dangers of power, 162. See also New Nationalism Eisenach, Eldon, 4, 62, 321 Eisenhower, Dwight D., 213, 217, 245

372

Index

Ely, Richard T., 10, 59, 64, 115 Employment bills: Full Employment Bill (1945), 81, 84, 171; Employment Act (of 1946), 84, 171. See also Public works Executive Reorganization, 18; origins of, 124; two models of, 124; Brownlow Committee report on, 126–127; early prospects for, 125, 136–137; business reaction to, 136–137, 140–141; compared to totalitarian government, 140–141; consequences for war mobilization, 164 Expert government, 6, 10, 18, 21, 26, 315, 319; social scientists and, 39, 71; industrialism and, 53, 57, 61, 64–65; World War I and, 67, 69, 70–71, interwar years and, 75, 76–77; New Deal and, 86, 87, 91, 96, 97, 124–125; success of, 86, 87; in tension with democracy, 160–161. See also Development State; Keynesianism; Overhead planning state; Power; Progressivism; Social Control Expressive individualism, 2–3, 14, 234, 304–306, 322, 235; eclipsing individualism of self-control, 305. See also Voluntarist self Ezekiel, Mordecai, 100, 112–113, 120, 121, 147, 150 Fascism: as defining Other, 1, 2, 19, 24, 184, 202, 237, 319; as denunciatory label, 2–3, 4, 129, 133, 141, 157, 189, 245, 313; as godless, 193 Federalism, 28, 259–260, 267, 319, 320 Fiscal Authority (Fisc): proposal for, 84, 171 Fiscal compensation, 20, 149–150; Warm Springs Memorandum on, 151–152, 153; contrasted with totalitarian planning, 152, 155–156, 163; administrative apparatus necessary for, 152–153, 156, 171; liberals retreating to, 163. See also Keynesianism Fiscal state, 97. See also Fiscal Authority; Fiscal compensation; Keynesianism Formative politics. See Character formation Four Freedoms, 237–238 Frankfurter, Felix, 72, 98, 104, 129, 146, 238–239, 241, 242, 248, 266, 269, 272–278, 279, 292, 294, 302, 306, 345n2, 359n41, 364n20

Freedom of association, 167, 237, 242 Freedom of contract, 3, 26, 85, 235, 256, 257, 315 Freedom of religion, 237, 238–240, 358n6; Catholicism as totalitarian threat to, 247–250; neutralist reinterpretation of, 302–304; and expressive individualism, 306. See also Civil liberties Free enterprise: U.S. exceptional commitment to, 81–84; factors weighing against postwar recommitment to, 85–87; political reasons for recommitment to, 88, 177; antitotalitarian retreat to, 151, 153, 163, 166, 167, 177; neutrality and, 183 Free society. See Democracy Free speech, 234, 240, 241, 358n6; political argument for, 88, 161, 237; and the South, 246; protected through burdenshifting, 292–293; as necessary to democratic process, 301–302; neutralist reinterpretation of, 306–308, 317; and child pornography, 309 Friedrich, Carl J., 190, 201, 205, 265 Fundamentalism. See Protestantism Germany: as destination for advanced study, 38, 58, 59–60, 68; as reform model, 56, 57, 65, 68. See also Social insurance Governance project(s), 5–6, 7, 328n10; as casualties of antitotalitarianism, 8, 19–20, 176; of New Deal, 91–97; complementarity of, 339n37 Great Depression, 89, 111, 148; creating state-building opportunity, 17–18, 39, 90–91, 170; impact on economic thought, 19, 20, 70, 74, 76, 86, 104, 177; legitimating totalitarian dictatorship, 87–88, 151; as caused by insufficient purchasing power, 96, 104, 107, 111, 149–150, 152–153, 339n36; strategies for ending, 96–97, 102, 108, 133 Hamilton, Alexander, 45, 46, 50, 65, 116, 118, 152, 233, 255, 319 Hamiltonians, 47, 53, 91–92, 198 Hand, Learned, 278, 285 Hansen, Alvin, 99, 121, 123, 150, 168, 170–171 Hayek, F. A., 19, 88, 156, 161–162

Index Henderson, Leon, 104, 150, 151, 153, 341n31 Higher law, 25, 158, 214, 261, 312, 360n24; grounding judicial review, 253–254, 255–256; legal realist critique of, 186, 258, 259. See also Natural law Hofstadter, Richard, 198, 202 Hook, Sidney, 188–189 Hoover, Herbert: and associational planning, 53, 74, 121; as engineer, 73, 74; responds to Depression, 89, 93, 94; on invention as new frontier, 100; and executive reorganization, 125, 136; attacks New Deal as totalitarian, 130–132 Independent agencies and commissions: struggle for independence of, 53; as fourth department of government, 70; and public interest, 70, 321; to be subordinated to President, 126, 127, 137; opened to interest groups, 218 Individualism: contrasted with totalitarianism, 2, 316; economic, 27, 234, 235, social, 167; as self-cultivation, 234; and progressivism, 235; intellectual, 239; of self-control, 305; replaced with language of national purpose, 320–321; new liberal language of, 321; monodological, 323. See also Expressive individualism; Voluntarist self Industrialism: problems raised by, 50–54. See also Monopoly Interest group lobby: early study of, 200, 203; postwar affirmation of, 203, 206–209; better at blocking than initiating legislation, 215–216, 224; executive and foundation founding of, 222; and the Court, 231; principal-agent problems with, 356n16. See also Interest group pluralism; Iron triangles Interest group pluralism, 23, 30, 37, 185, 200, 206–212, 295, 317; as international model, 212, 355n3; criticism of, 212–216, 219, 220–228; bowdlerization of, 217; institutionalization of, 217–228; inequitable representation in, 220–221, government and foundation sponsorship of, 222; legislative immobilization through, 223–227; inability to eliminate, 226; causes of, 227–228; becoming hy-

373

perpluralism, 228; as international model, 355n3 Internal improvements. See Economic promotionalism; Henry Clay Interstate Commerce Commission (ICC), 53, 66, 259 Iron triangles, 219, 221, 223; surpassed by electronic triangles, 224–225 Jackson, Andrew, 48 Jacksonians, 13, 48, 234, 256, 320 Jackson, Robert, 153, 239, 243, 303, 306 Jefferson, Thomas, 46–47, 91, 92, 236, 248, 333n26; on religious disestablishment, 302, 358n6 Jeffersonian, 65, 66, 91–92, 117, 198, 234 Jehovah’s Witness cases, 238–240, 292, 302 Johnson, Hugh, 102, 103, 148 Johnson, Lyndon B., 8, 43, 217, 222 Johnson administration, 216, 279, 355n3 Judicial deference to legislature, 24, 26, 250, 271, 274, 278, 279, 281, 285–286, 287–288, 295, 296, 302 Judicial reorganization. See Court packing plan Judicial review: undermined by legal realism and neutrality ideal, 24–25, 257–261, 267–270; need for justification of, 251, 253, 271, 280; original ground of, 253–256; Harlan Stone’s attempt to reground, 271–272, 301; Felix Frankfurter’s attempt to reground, 273–275; Hugo Black’s attempt to reground, 275–277; Learned Hand abridges, 278; legal process school attempt to reground, 285–289; neutrality used to justify, 285–286, 294, 296, 303; increasingly discredited, 300. See also Burden of proof shifting; Due process revolution; Civil liberties Kallen, Horace, 189, 195, 248 Kant, Immanuel, 263, 361n3, 361n6 Kantian, 29, 180, 185, 287, 322 Keynes, John Maynard, 149, 151, 155 Keynesianism, 7, 8, 20, 21, 30, 76, 83, 84, 94, 121, 156, 158, 178, 179, 183–184, 316–317; and the warfare state, 20, 97, 172, 175–176; limited institutionalization of, 170–172, 348n14. See also Fiscal compensation Keynesians, 81, 84, 107, 121, 171

374

Index

Kingdom of God, 40, 43, 63–64, 321 Knight, Frank, 72, 89, 196 Labor legislation, 38, 53–54, 60, 68, 69, 83, 95, 100, 110, 132, 135, 139, 339n35 Labor unions, 38, 62, 68, 139–140, 173, 177, 207, 249, 321, 339n34; and industrial democracy, 8, 235, 236; and corporatism, 9, 82, 83, 101, 102, 103, 104, 107, 109, 147, 150–151, 206, 218, 244 Laissez-faire, 2, 13, 82, 83, 106–107, 157, 236, 256; and totalitarianism, 2, 98; delegitimated by Depression, 19, 86, 156, 177; revived, 19, 316; opposition to, 60, 63, 67, 86, 105, 235 Landis, James, 70, 220, 268, 269 Law. See Moral law; Natural law; Common law; Higher law; Rule of law Legal process school, 281–289; and neutrality ideal, 281, 283, 285–89; appeals of to social science, 283–284; underwrites due process revolution, 293 Legal realism, 24–25, 71; as scientific naturalism, 185, 187; as critique of Lochner and rule of law 257–259; supporting progressive politics, 259; New Deal’s institutionalization of, 259–260; radicalized by neutrality ideal, 267–270, 298, 299; appeals of to social science, 268–269; use of in due process revolution, 293, 298; conservatives’ use of, 298 Legislature. See Congress Liberal consensus: Court’s exaggerated sense of, 250. See also Procedural consensus Liberal institutionalism, 26, 29, 234, 324, 327n1; as having moral and cultural preconditions, 13, 34, 214, 314, 322, 324 Liberalism: Left and Right, 12–13; intellectual underpinnings of contemporary, 23, 313. See also Liberal theory Liberal theory: not source of neutrality ideal, 23, 272; three waves of, 26–29; classical/autonomistic, 27; sociological, 27–29, 34, 314, 324; neutralist, 29, 314, 322 (see also State neutrality); revival of eighteenth-century, 29, 158, 162, 167, 180, 277, 311, 315–318; classical and neutralist contrasted, 263–264; antitotalitarian, 315–318; need to reconstruct, 322–324

Liberty League, 129–130, 139 Lieber, Francis, 57–58, 63 Lincoln, Abraham, 4, 235 Lippmann, Walter: as expert–progressive, 13, 67, 136; as critic of popular democracy, 21, 69, 185, 301; turns against administrative state, 22, 155–158; turns against executive reorganization, 140, 141 Lochner v. New York, 13, 256, 256, 258, 259, 266, 275, 278, 296, 303, 310 Locke, Alain, 190–191 Locke, John, 27, 162, 254, 255; on toleration, 263–264 Long, Huey, 108, 132, 157 Madison, James, 45, 47, 210, 211, 223, 267, 333n26; reinterpreted by pluralists, 211, 317; on Bill of Rights, 233–234 Maritain, Jacques, 188–189, 350n16 Market fundamentalism, 9, 33, 34, 81 Marshall Plan, 172–174 Marx, Karl, 51, 70, 106, 129, 188 Marxism, 10, 11, 20, 70, 75, 77, 160, 177, 180 Mature economy thesis, 99–100, 168 Mead, Margaret, 160–161 Means, Gardiner, 75, 100, 121, 123, 177; on administered prices, 105–107, 147, 340n17 Merriam, Charles, 71, 204, 206; and executive reorganization, 126, 169, and the NRPB, 121–124, 161 Mill, John Stuart, 56, 57, 263, 276, 301, 361n6 Mills, C. Wright, 213 Military-industrial complex, 20, 81, 176, 213 Mitchell, Wesley, 75, 76, 168; and NRPB, 121, 122, 123, 131, 149 Mixed economy, 21, 83, 88, 162–163, 176, 178 Monopoly: industrialism and, 51–52, 54; natural, 51, 60; regulation of, 53, 60, 66, 104, 167; public ownership of, 60, 104; break-up of, 65, 104; NRA and, 98, 102, 103, 104, 109; Roosevelt speeches against, 133, 153–154; faded concern about, 154. See also Neo-Brandeisians; New Freedom; New Nationalism

Index Moral law, 27, 187, 193, 331n48 Moral uplift, 4, 22, 30, 57, 235, 315; rejection of, 26. See also Character formation; Virtue politics Multiculturalism, 13, 30, 188, 329n21 Mussolini, Benito, 1, 88, 129, 130, 142, 155, 248, 349n7 National Committee to Uphold Constitutional Government (NCUCG), 139, 142, 144, 151 National Industrial Recovery Act (NIRA), 90, 95, 101 National Recovery Administration (NRA), 9, 19, 96, 98–110; failure of, 9, 102–103; reaction to failure of, 9–10, 103–104, 107–110; roots in progressive economics, 53; as expression of cooperative ideal, 53, 96, 98, 148; rival agendas for, 98, 100–101; rationale for, 99–100, 107; as business self-government, 100, 102; World War I analogue for, 102; Court strikes down, 110; why unable to match the centralized planning of AAA, 113–114; denounced, 129; Court packing and, 138; attempts at voluntary reconstitution of, 147, 150–151; Lippmann turns against, 155, 156; applied to agriculture, 218. See also Cooperative commonwealth National Resources Planning Board (NRPB): as central planning agency, 120, 127; compared to TVA, 120, 128; origins of, 121–122, 131; staffing of, 121–122; tasks of, 123, 166; and executive reorganization, 123–124, 144–145; as initially uncontroversial, 132; denied statutory standing, 144; and fiscal compensation, 149, 168–169; as democratic planning, 161; and war mobilization, 164; postwar planning of, 166–169; death of, 169–170; hypothetical institutionalization of, 176; as sustaining progressive economics, 179; and character formation, 183–184; distinguished from interest group pluralism, 206 National Security Council (NSC), 174–175 National security/warfare state, 20, 22, 172, 174–176, 177, 178, 185, 213 Nation-building, 41, 42, 43. See also Statebuilding

375

Natural law, 22, 185, 187–188, 266, 301; and judicial review, 24, 25, 256, 266, 269, 275, 276, 280; as totalitarian, 188–190; legal realist critique of, 270; replaced by neutralism, 303. See also Higher law Natural rights, 28, 188, 211, 214, 256, 270. See also Social contractarianism Nazism: as defining Other, 1, 41, 184, 240, 244, 289; as denunciatory label, 129, 141, 169, 189; objectionable features of, 192; and American South, 244, 247. See also Fascism Neo-Brandeisians, 103, 104, 107, 124, 146, 148, 150, 153; and Temporary National Economic Committee, 154 Neoconservatism, 31, 188, 329n22 Neutral (economic class): Constitution and common law as, 256–257, 262, 268, 274 Neutral (non-partisan): judges as, 269, 270, 273–274 Neutral (value). See State neutrality Neutral principles in law, 257, 285–287 Neutral procedure/process, 281, 299; Court embodying, 281–287, 294, 296; Court as arbiter of, 287–289, 293–294, 296–297; belied by Court discretion over, 289–291, 322. See also Process theory; Value-neutral social science New Deal: reigning interpretations of, 8, 9; as failing to consummate progressivism, 8, 39; governance projects of, 19–20; as failing to end Depression, 339n36. See also Compensatory state; Development state; Roosevelt, Franklin D.; Keynesianism; Overhead planning state; Progressivism New Freedom, 65–66, 92, 97, 98, 103, 146, 154, 158. See also Brandeis, Louis; Neo-Brandeisians; Wilson, Woodrow New Left, 318–319 New Nationalism, 64–65, 66, 88–89, 98, 146, 154. See also Cooperative commonwealth; Roosevelt, Theodore Niebuhr, Reinhold, 160, 367n2 Nozick, Robert, 329n20, 364n7 Obscenity, 240, 242, 249; neutralist reinterpretation of, 308–309, 317

376

Index

Office of Management and Budget (OMB). See Budget bureau Orwell, George, 189 Overhead planning state, 96. See also Agriculture Adjustment Administration; Technocracy; Tennessee Valley Authority Parastate institutions, 62–63, 71, 82, 315; due process assault on, 297 Party government, 48–49; as inadequate to industrialism, 38, 51–52, 54, 320; efforts to replace, 56, 57, 62–63; corruption of, 61; reassessment of, 203. See also Civil service reform; State of courts and parties Philanthropic foundations: as parastate actors, 62, 74–75, 82, 93, 120, 123; sponsoring social research, 71, 179; sponsoring interest groups, 222 Planning, 9, 19, 20, 54, 74–75, 76, 206, 315. See also, Development state; Overhead planning state Pluralism: See Interest group pluralism Pluralist: American democracy as, 23, 162, 190, 191, 196–197, 198, 199, 201, 205 Police powers of the states, 23, 262, 311 Political Science, 37, 38, 184; origins of, 57–59, 71; postwar paradigm of, 197–205; evaluation of, 212–213 Populism, 65, 66, 103–104, 108, 132, 198, 259, 298, 327n6 Pound, Roscoe, 71–72, 266, 268, 362n25 Power: as dispersed in U.S., 23, 201, 228, 318; progressive desire to concentrate, 64–65, 124–125, 126, 127; totalitarian dangers in concentrating, 141, 154, 160, 171; as renewed liberal concern, 162; three dimensions of, 213; to be kept separate from opinion, 263–264 Privacy rights: as antitotalitarian, 167, 240, 242–243, 249, 303; neutralist reinterpretation of, 263, 309–311; and voluntarist self, 310 Procedural consensus: United States held together by, 194, 197, 199–200, 205, 209, 213, 214, 280, 289, 295. See also Procedural republic; Process theory Procedural republic, 14; antitotalitarian origins of, 189–190, 212. See also Procedural consensus; Process theory

Process theory, 194; of democracy, 194–205; of law, 281–284. See also Interest group pluralism; Legal process school; Neutral procedure/process Production for use, 74, 108, 130 Progressivism, 4, 7; New Deal foreshortening of, 8, 88–89, 167; expert-, 13, 87, 88, 160, 162, 176; populist-, 13, 65–66; intellectual underpinnings of, 60; and presidential politics, 62–64, 65–66; collapse of as political movement, 68; reconstitution of as technocratic, 68–69; and legal realism, 71, 259–260; and national security state, 176; and individualism, 235. See also Character formation; Virtue progressivism Protestantism: opposed to negative liberty, 2, 234; supporting liberal institutionalism, 28, 32, 214, 314; and origins of social science and, 59; and parachurches, 62, 63, 179; split within, 68, 313–314; and Republican Party, 112, 313–314; Northern and Southern compared, 312. See also Kingdom of God; Puritans; Social Gospel Public works, 76, 84, 91, 96, 121, 152, 175, 176; as workfare, 20, 93–94, 95; Civilian Conservation Corp and, 20, 93, 117, 129, 342n8; Civil Works Administration and, 93, 226; Works Progress Administration and, 93; Public Works Administration and, 121; National Resources Planning Board and, 123, 124, 127, 128, 135, 168; proposed cabinet position for, 127; as Keynesian stimulus, 158, 168–169 Purcell, Edward Jr., 185–186, 190, 191, 199, 204, 352n1 Puritans: and paternalism, 13; and nationbuilding, 43; and state-building, 43–44; and U.S. Constitution, 45, 46, 254; and the progressives, 63 Railroads, 50–53, 66, 246, 334n36, 340n17; and progressive theory of regulation, 52–53, 60, 65, 66, 100 RAND, 179–180 Rational choice liberalism: and antitotalitarianism, 180 Rational choice theory, 29, 179–180, 322, 355n59

Index Rawls, John, 23, 194, 263, 322, 361n8, 365n5 Reagan, Ronald, 7, 8, 9, 188, 223, 224, 226 Relativism (moral): as root of totalitarianism, 22, 187, 188, 248, 266, 313; as rationale for democracy, 22, 29, 191,199, 350n15; as trait of democrats, 190; as American trait, 198–199; Democratic Party and, 314. See also Process theory Religious disestablishment. See Freedom of religion Republican Party: and economic Right, 3, 4, 314; as anti-government spendthrift, 62; home of progressive reformers, 64; and Protestant cultural politics, 112, 313–314; conservative capture of, 250 Republicanism. See Classical republicanism Rodgers, Daniel, 60, 62, 316 Roosevelt, Franklin D.: and executive reorganization, 18, 86, 124–126, 135–137, 140, 176; economic programs of compared to totalitarian ones, 19, 23, 86, 109, 129–131; and civil liberties, 24, 236, 237–238; and war economy, 86, 164–165; and state-building opportunity, 90–91; governance vision of, 91, 125, 339n27; Commonwealth Club Address, 92, 99, 101, 148, 339n27; economic relief programs, 93–94; as budget balancer, 94, 149, 150; and factory legislation, 95; and mature economy thesis, 99–100, 105; and NRA, 101, 102, 109, 110, 138, 147, 148, 150–151; challenged from the Left, 108, 132; and AAA, 111, 112; and conservation, 117; and TVA, 117–119, 120, 127–128, 142–143; and NRPB, 120, 122–123, 145, 166; election results, 130, 133, 154–155; and labor unions, 132, 339n34; and poverty elimination, 134; and Court packing plan, 135, 138–140, 345n22; Court appointments of, 138, 140, 270, 271; compared to totalitarian dictators, 140–143; and Brandeis program, 146–147, 148, 153–154; of two minds on economic reform, 147–148; and recession of (1937), 148, 151; and fiscalism, 149, 150, 152; postwar agenda of, 170–171; following public opinion, 202; and constitutionalism, 260

377

Roosevelt, Theodore, 4, 72, 98, 125, 136, 215; and New Nationalism, 53, 64–65, 66; and conservation, 116–117 Rousseauism, 29, 63, 180, 305 Rule of law: as differentiating democracy from totalitarian regimes, 24–25, 266, 271, 273–274; critiqued by legal realists, 257–259; reinterpreted as observation of duly established procedures, 282. See also Judicial review Ruml, Beardsley, 121, 151, 153 Sandel, Michael, 14–15, 16, 262–263, 271, 307, 308, 309 Schechter Poultry Corp. v. United States, 110, 138, 146, 260 Schlesinger, Arthur Jr., 66, 158, 198, 217, 218, 316 Scientific naturalism, 185–187; as totalitarian, 187; as democratic virtue, 197. See also Relativism (moral); Value-neutral social science Scottish moral philosophy, 29, 47, 63, 234 Secular humanism. See Culture wars Separation of powers, 29, 47, 63, 162, 234, 278 Skocpol, Theda, 6, 37, 214 Skowronek, Stephen, 6, 45–46, 50 Slavery, 42, 48, 234 Social contractarianism: 23, 28, 29, 45, 256, 287, 317 Social control: 21, 22, 26, 36, 67, 71; turn against, 21–22, 157, 164, 315 Social Gospel, 59, 63, 64, 68, 95, 179, 313. See also Kingdom of God Social insurance, 54, 68, 83, 84, 93–94, 167–168, 169; European programs of, 38, 83. See also Social Security Act Social science: origins of American, 56–67; instrumentalism after WW I, 71–72; in tension with democracy, 160–161; methodological debates within, 185–186, 205; postwar premises of, 197–205; justices appeal to, 278. See also Economics; Political Science; Valueneutral social science Social scientists: as state-builders, 17, 38–39, 55; and social control, 21–22; distinguishing democracy and totalitarianism, 29; postwar silence of on the

378

Index

Social scientists (continued): state, 37, 39, 77; original interest in the state, 39; as theorists of progressivism, 62, 64; Protestant filiation of, 63–64; Hoover’s use of, 74–75. See also Expert government; Planning Social Security Act, 93–94, 110, 132; and Supreme Court, 135, 139, 260; and fiscal policy, 150, 348n14 Social Taylorism, 73, 74, 76, 98, 101, 177 South: as obstacle to state-building, 17, 42–43, 48, 95, 114, 236, 244; economic populism of, 65, 108, 132 Southern totalitarianism, 244–247, 250. See also Civil liberties; Civil rights Sovereignty: popular, 28, 46, 48, 232, 255; left to God, 42, 254; of central state, 44, 201; legislative, 45, 254; of individual states, 45; of state ideal, 58; dismissed by pluralists, 197, 212; and justification of judicial review, 252, 254–255; imperial, 256 State: alliance between universities and, 57; idealist concept of, 58, 63; comparison of American and European, 82–83, 96–97, 109. See also Administrative state; Antistatism; Associationalism; Compensatory state; Competition-inducing state; Corporatist state; Fiscal state; National security/warfare state; Overhead planning state; Parastate; State autonomy; Statebuilding; State neutrality (value); State of courts and parties; Totalitarian state; Welfare state State autonomy, 6, 37, 39, 61, 62, 77, 87, 156; the turn against, 70, 201, 202, 205, 207, 211 State-building: study of, 6–7; social scientists spearheading, 10, 17, 38–39, 56–61, 62, 71–72, 75–77; South as obstacle to, 17, 43; as moral project, 40–41, 55; theories of, 40; contrasted with nation-building, 41; comparison of American and European, 41–42, 84–85; early American evasion of, 42–50; Puritans and, 43–44; Theodore Roosevelt and, 64–65; Woodrow Wilson and, 65–67; World War I and, 66–67; abandoning of, 77. See also Agricultural Adjustment Administration; National Recovery Administration; Na-

tional Resources Planning Board; Tennessee Valley Authority State neutrality (value), 12, 14, 30–31; alternative explanations of rise, 14–16: origins of, 23, 41, 184–185, 190, 192, 193, 264–265; its radicalization of civil liberties, 25, 26, 251, 262, 303, 304, 306–311, 317; weakness of arguments for, 192–193, 331n54; two interpretations of, 194, 280–281; process theory and, 197; contrasted with classical liberal ideals, 263–264; why influential in law, 265–267; radicalizing legal realism, 267–270 State of courts and parties, 48, 51–52; as obstacle to administrative state, 17, 49–50, 54, 86, 90, 334n33 Stone, Harlan, 138; and Footnote Four, 271–272, 301 Strauss, Leo, 188 Supreme Court. See Bill of Rights; Burden of proof shifting; Civil liberties; Civil rights; Common law; Court packing plan; Criminal procedure; Due process; Judicial review; Legal realism; Neutral procedure Tariff, 4, 15, 46, 47, 54, 66, 110–111, 112, 152, 216, 319 Taylor, Frederick Winslow, 72, 73. See also Social Taylorism Technocracy, 8, 10, 20, 69, 71, 74, 83, 108, 119, 176, 177, 180, 319 Tennessee Valley Authority, 10, 19, 60, 94, 97; and mixed economy, 83, 162; origins of, 116–118; and character formation, 118–119, 183; success of, 119, 132, 177; efforts to replicate, 120, 127–128, 344n22; as Bolshevik, 129; failure to replicate, 140, 176; director fired, 142; mission narrowed, 142–143, 146 Tocqueville, Alexis de: and sociological liberalism, 28, 34, 314, 324; on America, 42, 43, 50, 234; and administrative decentralization, 46, 113; and tyranny of the majority, 210, 302 Totalitarian state, 2, 7, 87; transformational fear of, 7, 20, 152, 158, 315;

Index economic controls leading to, 19, 88, 156–157, 159; as value-imposing, 189. See also State (and cross-references therefrom) Trust-busting. See New Freedom; NeoBrandeisians Truman, David, 204, 205, 206–209, 227, 354n35 Truman, Harry, 171, 172–174, 245 Tugwell, Rexford, 75, 76–77, 100, 101, 107, 110, 112, 113, 119, 129, 147, 149, 150, 176, 337n58 Tyranny of majority, 23, 210, 302 Value-neutral social science: as protototalitarian, 22; translated into valueneutral constitutional order, 22, 23, 184–185, 190, 192 Veblen, Thorstein, 73–74, 75, 98, 106 Verein für Sozialpolitik, 57, 59, 61 Virtue politics, 11–16, 28–29, 32, 314, 318; classical liberals and, 27, 46, 192, 263–264; rejection of, 29, 30, 264–265, 299, 318; weakness of arguments against,

379

33–34, 331n54. See also Character formation; Moral uplift Virtue progressivism, 4, 5, 7, 29 Voluntarist self, 29, 304–305, 309–310, 322, 331n48. See also Expressive individualism War of Independence, 42, 44, 245, 254 War Industries Board (WIB), 67, 101, 102 Warren Court, 240, 246, 250, 260, 272, 279, 287, 294, 298, 299 Warren, Earl, 246, 251, 278, 279 Welfare state, 38, 40–41, 85, 175, 177. See also Compensatory state Whigs: American, 4, 13, 28, 34, 48–49, 50, 57, 64, 170, 234, 320, 324; English, 254 Wilson, Woodrow, 4, 58, 65–67, 68, 86, 98, 104, 136, 340n1 World War I: and state–building, 66–67, 68; jingoism during, 155, 235; as ethnic war, 237 World War II: mobilization for, 87, 164–166; ideological objectives of, 164, 237, 245