Sophia Z. Lee: Evolution or Revolution in Novak’s “New Democracy”

Sophia Z. Lee

Sophia Z. Lee is a professor at the University of Pennsylvania Law School. She is the author of The Workplace Constitution from the New Deal to the New Right. Her articles appear in Law & History ReviewVirginia Law Review, the University of Pennsylvania Law Review, and Yale Law Journal. She is working on a history of constitutional privacy.

Original grain elevator (right, 1891) and concrete grain elevator, 1914. City Mills Company, Eighteenth Street & First Avenue, Columbus, Muscogee County, GA. Image courtesy of the Library of Congress.

[Editor’s Note: The following is adapted from remarks presented at the 2022 American Political History Conference; a version also appears in the Yale Journal on Regulation’s online companion, Notice & Comment.]

Bill Novak’s New Democracy is a feast of a book and is a must read for anyone interested in administration and its history. The book stretches from the end of the Civil War to the eve of the New Deal, traversing what historian Rebecca Edwards has called the Long Progressive Era.  It covers changes in law, philosophy, and political theory, as well as those ideas’ translation into political action and governing institutions. Novak’s core claim is that decades before the New Deal, the United States underwent what amounted to a second administrative founding. According to Novak this transformation was as consequential as what the Civil War and Reconstruction wrought on the nation’s politics and its Constitution.

New Democracy is chock full of bold arguments and important historiographic interventions, just some of which I’ll describe below. Ultimately, though, I worry that the book may not serve the end Novak seeks. Novak presents his book as shoring up the modern administrative state, and in many ways it does. Yet, he has also provided important fodder to those jurists and scholars who contest its legitimacy and legality.

Novak argues that between the Civil War and New Deal, the United States revolutionized its approach to governance. Intellectuals, jurists, and activists reconceived society from a collection of atomistic individuals, each responsible for their own fate, into an interconnected, social whole obligated to ensure the equal flourishing of all its members.

They also transformed the state to serve those social ends. A localistic, particularistic, formalistic, common-law driven mode of governance was replaced with a national, realist, and generalized legislative and regulatory mode of governing. According to Novak, these transformations relied on and sought to produce a newly expansive, responsive, affirmative, and egalitarian concept of democracy.

Novak emphasizes the novelty and revolutionary nature of the system of governance that resulted. He refers to the modes of governance he recounts as “unprecedented,” “new under the sun,” and “distinctive.” In Novak’s estimation, these new approaches to governing were the result of sharp ruptures with the past. The changes “emerged dramatically” at “crucial inflection points,” producing a “revolution” that shaped American governance into the present day.

Along the way to supporting the book’s overarching argument, Novak makes important interventions in the history of administration, each of which counters common criticisms of the administrative state. Among them is that laissez-faire constitutionalism, which consumed generations of historians and is a bedrock of libertarian critiques of administration, did not define the U.S. at the turn of 20th century. Instead, Novak argues, the period witnessed the proliferation of the very economic regulation that was supposed to have been foreclosed under that laissez-faire thesis.

Another of Novak’s interventions is that the modern approach to economic regulation did not originate in antimonopoly fervor, as has been argued in much legal and historical scholarship. If modern administration is justified by turn-of-the-century economic theories about monopoly, critics of the modern administrative state gain leverage by disputing the validity of those economic theories. Novak refocuses the debate by rooting economic regulation instead in the considerably firmer ground of early legal concepts such as the law of common callings and public service corporations.

Novak also recovers a domestic intellectual lineage for this transformation in governance. He traces resonances between domestic and European thinkers, but the European ideas are presented more as parallels to rather than as roots of the domestic theories he discusses. In Novak’s telling, the United States’ revolution in governance was not the product of German theories reaching U.S. shores, but a homegrown phenomenon. This line of argument pushes against those critics of the modern administrative state who highlight its connections to ideas transplanted from foreign authoritarian soil.

Relatedly, administration in the U.S. was not a Weberian, bureaucratic, technocratic end in itself. Instead, it was conceived of and used to preserve democracy and ensure the public welfare. Administration, Novak contends, realized rather than threatened democracy. In this sense, Novak’s book is well-timed to counter recent opinions by Justice Gorsuch and Judge Oldham of the Fifth Circuit that illustrate the intellectual roots of the modern administrative state with elitist, anti-democratic quotes by Woodrow Wilson.

President Woodrow Wilson throwing out the first ball, opening day, 1916. Image courtesy of the Library of Congress.

Other aspects of Novak’s account, however, could provide valuable fodder to the very critics of the modern administrative state he seeks to counter. Novak started work on this book when critics of the modern administrative state trained their gaze on the New Deal as the moment when the United States departed from its constitutional traditions. New Democracy is well crafted to counter this critique: Novak exhaustively demonstrates that the New Deal capped rather than inaugurated the transformations in governance that underpin the modern administrative state.

Novak’s book has landed, in contrast, after critics of administration shifted their gaze back to the Progressive Era, deeming it the moment of the United States’ fall from constitutional grace. They will, I expect, agree with Novak that what occurred in this period was a revolution in administrative law. But whereas Novak celebrates that transformation, critics of the modern administrative state seek its reversal. For them, the decisive break Novak embraces supports the modern administrative state’s illegitimacy and illegality.

Novak has made a more compelling case for the novelty of modern administration than he has for its fundamental break from the nation’s earlier modes of law and governance, however. Novak is a bold, swing for the fences, lumper, which is one of his great strengths as a scholar. But taking more of a splitter approach to the history he recounts reveals a more evolutionary rather than revolutionary path to his title’s modern American state.

Novak covers his entire period of 1866-1932 across thematic chapters, a lumping strategy that, I suspect, makes the changes he traces seem like the product of dramatic breaks rather than gradual changes over time. Breaking things down chronologically, in contrast, produces more of an evolution rather than revolution story. The end point was new in either telling, but the path to that new world was built of a series of incremental changes when the history is viewed chronologically and across his chapters’ themes.

If one synthesizes across Novak’s chapters and breaks down by decade his striking lists of regulations, one gets the following evolutionary narrative: State regulation of industry through corporate charters gave way in the mid-19th century but was reconfigured by legal actors into the regulation of public utilities by the 1870s. In the 1890s and 1900s, the public utility idea gradually generalized beyond railroads and grain elevators. Then the idea, once generalized, was realized in all kinds of new agencies in the 1910s and ‘20s. So told, modern administration, while novel, resulted from a gradual process of legal evolution rather than a critical moment of transmogrification.

Novak might not disagree. In his conclusion, he softens his claims of a revolution. He argues that the transformation in governance that the book recounts was “not the product of a sudden new ‘moment’ of constitutional change or popular revolution.” (264) Instead, he terms it a “less conspicuous revolution” that was the “product[] of larger, more disparate, and more subterranean processes of legal and political, as well as social and economic, change.” (Id.) So described, the distance between revolution and evolution closes, perhaps even vanishing altogether in evolution’s favor.

I press the evolution or revolution question not only for the sake of historical interpretation or to nitpick over semantics. Instead, the stakes of the characterization could be huge for the future of administration. If there really was a fundamental break at the turn of the 20th century—a true revolution—in our modes of governance and their legal justifications, that would bolster critics of modern administration. If instead, there was a gradual evolution in founding doctrines and modes of governance, one fed by and feeding the Reconstruction (and one might add 19th) Amendments’ commitment to a more popular democracy, that would put the book’s new democracy and new American state on far firmer ground.

Of course, Novak’s book is a political, legal, and intellectual history not a legal brief. Novak should not make history up to save the administrative state going forward. Instead, I raise his book’s contemporary implications to emphasize its tremendously high stakes, not just as an enormously important new history of the U.S. state but for that state’s newly precarious future.