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

Published online by Cambridge University Press:  18 August 2010

William J. Novak
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Extract

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

Type
Forum: Comment
Information
Law and History Review , Volume 24 , Issue 1 , Spring 2006 , pp. 193 - 199
Copyright
Copyright © the Board of Trustees of the University of Illinois 2006

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References

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

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

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

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

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

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

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