Karen M. Tani–The Modern American State as a Democratic State: Questions Inspired by Novak’s New Democracy

Dr. Karen M. Tani

Karen Tani is the Seaman Family University Professor at the University of Pennsylvania, where she is jointly appointed in the law school and the history department. She is the author of States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (Cambridge University Press, 2016), winner of the Cromwell Book Prize from the American Society for Legal History in 2017. Her published articles have appeared in the Yale Law Journal, the Michigan Law Review, the Law and History Review, and other outlets. A legal historian of the twentieth-century U.S., she is particularly interested in social welfare provision, disability policy, administrative agencies, and rights guarantees. Glimpses of her current major research project, on disability law in the late twentieth century, are forthcoming this year in the Disability Studies Quarterly, the California Law Review, and the University of Pennsylvania Law Review.  She holds a JD and a PhD in History from the University of Pennsylvania. Following her law school graduation, she clerked for the Honorable Guido Calabresi on the U.S. Court of Appeals for the Second Circuit.

Five years ago, in commemoration of the twentieth anniversary of William Novak’s first book, The People’s Welfare (1996), I remarked on the thousands of dissertations the book undoubtedly launched—my own included.[1] I found particularly generative the book’s conclusion, in which Novak moved beyond the older paradigm of governance that was the focus of The People’s Welfare (the “well-regulated society”) to limn a portrait of the modern American state (which he provisionally labeled “the liberal state”).[2] Dating the emergence of this new paradigm of governance to circa 1877, Novak went on to sketch several key features, including an inclination to exercise public power in a centralized rather than localized manner and a preference for treating the individual as the relevant “social unit of governance” (eschewing the previous reliance on “self-governed” communities).[3] The common law tradition lived on, Novak continued, but “modern jurisprudence tended toward positive formulations of power and interest, constitutional delineations of individual right, scientific applications of legal rules, and economic calculations of general welfare and utility.”[4] Had Novak accurately sketched the defining features of the modern American state? I asked in 2017. And how, exactly, did this modern regime of governance displace the older paradigm? Did it do so at the same rate across every policy area? And how did people on the ground experience this new pattern of governance? When I posed these questions, I knew that Novak was at work on a sequel to The People’s Welfare and I eagerly awaited his answers.[5]

New Democracy is the grand synthesis I was waiting for—and also something more. Through his signature blend of intellectual history, legal history, and political history, Novak once again illuminates an entire epoch in American governance and offers a vocabulary for discussing it. He highlights, first, the post-Civil War concept of citizenship that made a new paradigm of governance possible.[6] Next, he describes the changes in ideas and aspirations that produced a more robust concept of the police power—one that would undergird an explosion of state and federal legislative efforts to protect and enhance the “general welfare.”[7] From these foundations, new modes of regulating economic activity came to seem possible and desirable—the focus of Novak’s chapters on public utility and antimonopoly.[8] Parallel developments occurred in the vast arena of American life that thinkers and policymakers dubbed the “social.”[9] Novak gets to the “administrative state” last—an important choice. Scholars sometimes write about the “state” and the “administrative state” as if they are the same thing, but Novak distinguishes them. He describes the administrative state as a “vehicle” for “a modern vison of state and law”; the “audacious expansion” of the administrative state in this period can only be understood in the context of “the development of a new and positive conception of law and the state increasingly oriented toward public service, social needs, and general welfare.”[10] By the end of the book, the reader has a fuller and more vibrant picture of what Novak sketched back in 1996: we see the legal and ideological foundations of the modern American state, as well as the most important and enduring technologies of governance that emerged from these foundations.  

Sophonisba P. Breckenridge. Image courtesy of the Library of Congress.

What I did not anticipate as I eagerly awaited this book, and what strikes me as the most original aspect of Novak’s account, is the emphasis on democracy. Novak’s “modern American state” is not, first and foremost, a “liberal state.” It is a “democratic state.”[11] “[D]emocratic commitments” were “at the very heart of the production of the modern American state.”[12] It was “new democrats” who “rewrote the rules of the entire game from law and society to state and economy, from public and private to collective and individual.”[13]

I missed this in my own work on the modern American state, as did many others. I wrote about bureaucracy and expertise; centralization and nationalization of authority; and the rise of a powerful discourse of rights.[14] But I didn’t describe any of this as fundamentally democratic. I even focused on some of the same actors that Novak does, such as the indomitable social welfare reformers Edith Abbott and Sophonisba Breckenridge, and although I heard their calls for rational and effective governance, I overlooked what they had to say about democracy.

That an entire field of scholars did the same is important historiographically, but also politically: it has been a gift to all those who would prefer a less regulated form of capitalism, an even thinner social welfare state, and a government that outsources basic functions to “the market.” People in this camp often cast the modern American state, especially its administrative dimension, as undemocratic and therefore illegitimate. (Note the reams of law review pages devoted every year to the administrative state’s undemocratic facets and how best to manage them.) Novak flips the script, by showing that the modern American state and its extensive administrative apparatus responded to a perceived crisis in democracy. Novak sees in the modern American state an effort to save democracy, not to suppress it with distant government or expert knowledge.[15]

What allowed Novak to see what other scholars had missed? Part of the answer lies in the actors he chose to study. Unlike many historical studies of the state, his does not privilege high-level government officials or the administrators responsible for carrying out their policy choices. The voices that dominate this book are jurists, philosophers, social scientists, legal scholars, journalists, public intellectuals, and high-profile reformers. Some of these actors wielded formal state power, but many more were people who chronicled or analyzed the exercise of state power, and in doing so, advanced compelling understandings of what government could and should do. Novak’s unparalleled appetite for the output of these “American moderns,”[16] combined with his willingness to read across disciplinary boundaries and policy areas, surely allowed him to see themes that evaded other scholars.

But perhaps the most fundamental reason that Novak was able to see a democratic throughline in the rise of the modern American state is that he accepted the way his actors understood democracy. Departing from today’s common focus on procedural democracy, Novak emphasizes substantive democracy: an aspired-for condition in which necessary opportunities and resources are in reach of every individual and the goal of government is to make it so, in a manner that is both equitable and effective. Phrased differently, the democratic aspirations Novak recovers were less about everyone having a say, in a formally equal manner, and more about everyone having a share in a collective future. 

Novak’s understanding of democracy and modern statecraft also invites a host of interesting and important questions—the likes of which will once again inspire a generation of scholars, I predict. One set of questions is about the historical and contemporary relationship between substantive democracy and procedural democracy. It is one thing to be against corruption and oligarchy, but when it comes to the more affirmative promises of substantive democracy, big questions arise. What is health? What is safety? What if securing one person’s health or safety comes at the expense of another’s well-being? What distribution of resources and opportunities is equitable? It would seem to matter who was empowered to answer these questions. To what extent were proponents of substantive democracy representative of the broader public they purported to champion? Novak describes these reformers as reacting against an “assault on democracy”—an assault that was visible, for example, in “the disfranchisement of women” and “the sweeping exclusionary practices of Jim Crow and Chinese exclusion.”[17] But when we dip below the birds-eye view, it is hard not see some of these reformers as quietly complicit in these inegalitarian practices (or less quietly, in the case of someone like Woodrow Wilson). How should we evaluate the handiwork of people who pursued substantive democracy while appearing relatively untroubled by the continued political disempowerment of large swaths of the population? Is there a cost to calling that work democratic? The response that I think New Democracy offers is twofold: (1) that democracy is, and always has been, a work in progress, and (2) that this book’s core concern is the connection between democratic aspirations and the architecture of modern American governance; this connection is what is worth remembering and reviving.[18] I look forward to seeing how other readers engage with this important argument and its present-day implications.

A second set of questions that New Democracy provokes is about the drivers of change in this grand transformation, from the “well-regulated society” to the “modern American state.” Undoubtedly, the emphasis on democracy represents an important historiographical intervention, but to what extent did concerns about democracy motivate the large-scale transformation in governance at the core of the book? As Novak notes, the push for a more democratic way of life was entangled with other great forces. One was “onrushing modernity,” which included mass production and consumption, amazing new technologies of connection and exchange, and the perception that societies could rise and fall based on the behavior of their weakest or most troublesome members.[19] A related force that Novak mentions is nationalism, with its imperative to be better, fitter, than other nations.[20] Indeed, the decades that New Democracy covers are ones in which the U.S. became an overseas empire, hardened its geographical borders, and attempted to assimilate Native Americans out of existence. Were these examples of modern American statecraft inspired by democratic aspirations?

Chapter 4, on “Social Legislation,” illustrates the point well: a major transformation in governance is apparent here, but the connection to democratic ideals can be difficult to see. In brief, this chapter is about modern approaches to “provisioning and policing.”[21] Targets of regulation included people who seemed capable of immoral, deviant, or criminal behavior; people whose bodies functioned in non-normative ways; people with inadequate economic resources; and really, anyone who could be cast as a threat to the public. This chapter does the vital work of introducing the idea of the “social,” which made possible modern social welfare legislation. But reforms enacted in the name of the “social” also enabled practices that we might now describe as the criminalization of poverty and the forerunners of mass incarceration. Other practices, such as the sterilization of people deemed “feeble minded,” we would label eugenic (as Novak does). In short, the state that we see in this chapter does not seem so committed to “the realization of greater individual and collective freedom in modern social life.”[22] Or at least, not for everyone. So, again, if we look to practices—which has long been Novak’s valuable and influential approach to seeing the state[23]—is there a cost to describing the modern American state as democratic? It may be that the benefits of this descriptor outweigh the costs, especially when we embrace Novak’s understanding of the term. I look forward to hearing other scholars’ views.

            A third set of questions that New Democracy provokes is about how broad and deep a set of changes needs to be before we treat it as a fait accompli. In my own work on social welfare, I have raised questions about whether the “American moderns” ever truly succeeded in, as Novak puts it, “shift[ing] the terms of debate from a focus on issues of personal dependency and individual defect to a more social emphasis on insecurity, insufficiency, and inequality in basic human living standards and modern economic and labor conditions.”[24] I am not so sure.[25] But I will conclude with a different, related point. In the introduction to another symposium on New Democracy,[26] Nicholas Parrillo describes Novak’s modern American state as a regime that “survives to this day”; it is “our regime.”[27] In some regards, this is clearly right. The modern vision of citizenship that Novak describes is still with us, as is the modern understanding of the police power. The notion of social insurance is broadly accepted, even if particular applications remain contested. Americans expect laws to apply generally and uniformly, and we take centralized administrative authority as a given (even if there are lively debates about how much power should reside there). But what happened to the vision of democracy that, according to Novak, once infused this governmental regime? Novak acknowledges in the book’s conclusion that “[c]ontemporary notions of democracy and political freedom have shriveled as private economic liberty and celebrity entrepreneurship again overtake public traditions of self-government, collective welfare, and public accountability”; the “rightward strand in American political-economic thought” is as vibrant as it has ever been; in law, formalism and originalism are ascendant, meaning lawmakers are constrained in their ability to respond to the changing circumstances that now imperil the general welfare.[28] In short, today’s reigning paradigm of governance remains “modern,” but does it remain “democratic” in the way Novak invokes that word? And if it is true that anti-democratic forces have largely evacuated our modern state of the commitments and aspirations that once coursed through it, how to we un-do that process?

A good first step, I think, is to simply acknowledge what we once had. For that, we can thank this bold and original book.

[1] Karen M. Tani, “From the Well-Regulated Society to the Modern American State,” American Journal of Legal History, 57, no. 2 (2017): 243–247, https://doi.org/10.1093/ajlh/njx007.  William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).

[2] Novak, The People’s Welfare, 238.

[3] Ibid.

[4] Ibid., 247.

[5] Tani, “From the Well-Regulated Society to the Modern American State.”

[6] William J. Novak, New Democracy: The Creation of the Modern American State (Cambridge: Harvard University Press, 2022), 25-67.  

[7] Ibid., 68-107.

[8] Ibid., 108-45; 180-217.

[9] Ibid., 146-79, 247-57.

[10] Ibid., 225, 227.

[11] Ibid., 1, 16 (emphasis added).

[12] Ibid., 6.

[13] Ibid., 271.

[14] Karen M. Tani, States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (New York: Cambridge University Press, 2016).

[15] Novak, New Democracy, 16-19.

[16] Ibid., 16.

[17] Ibid., 18.

[18] To be clear, Novak acknowledges the exclusionary dimensions of the revolution he describes. The democratic aspirations he highlights existed alongside “distinctively proscribed limitations,” he notes, and “there was no guarantee” that the “technologies” of governance that developed in response to a perceived crisis in democracy “could not also be used for distinctly less salutary or antidemocratic ends.” Ibid. at 6, 23.

[19] Ibid. at 16; see also ibid. at 146 (“[T]he modern American state was born in a time of intense socioeconomic transformation, unrest, and uncertainty—a period of almost continual social crisis that put unrelenting new demands on existing technologies of government.”).

[20] Ibid., 71.

[21] Ibid., 147.

[22] Ibid., 21.

[23] Ibid., 4; Novak, The People’s Welfare, 8-9.

[24] Novak, New Democracy, 248.

[25] As Novak observed in The People’s Welfare, “one can still detect traces of the well-regulated society in contemporary law and society. Novak, The People’s Welfare, 248. I think that this is especially true with regard to public income support and anti-poverty policy. Various groups of Americans, for different reasons, tenaciously resisted “modern” reforms. Tani, States of Dependency.

[26] “Symposium on William Novak’s ‘New Democracy: The Creation of the Modern American State,’” Notice & Comment, https://www.yalejreg.com/topic/symposium-novak-new-democracy/ (last accessed Aug. 3, 2022).

[27] Nicholas R. Parrillo, “Symposium Introduction: Novak’s ‘New Democracy: The Creation of the Modern American State,’” Notice & Comment, Jul. 18, 2022, https://www.yalejreg.com/nc/symposium-novak-new-democracy-00/.

[28] Novak, New Democracy, 270.