One of the strangest spectacles in contemporary American politics is libertarians’ schizophrenic attitude toward the power of the state. We are supposed to hate the government, we are told, but mostly just the feds: One of Rand Paul’s big crowd-pleasers is to demand the return of power to the states—whether to legalize marijuana, ban abortion, or make marriage a religious rather than a civil institution. The great fear, for today’s pot-smoking readers of Ayn Rand, is of a distant and faceless government, all those bureaucrats in Washington, DC; the utopian dream is the return of face-to-face power, the intimate, reasonable rule supposedly on display over at the city council and down at the statehouse. Never mind that it is states and cities that have passed many of the most coercive statutes in our history: the establishment of slavery; the proscription of interracial marriage; the prohibition of alcohol (possible at the federal level only through constitutional amendment); the banning of books.
For the student of political theory, this can all come off as a little tawdry. Witness the back-and-forths about federal surveillance between Paul and Chris Christie at the Republican presidential-primary debates: Why even bother with such “candidates”? As for the historian, the whole rigmarole is easy to write off as yet another episode in the never-ending saga of what Richard Hofstadter long ago termed the “paranoid style.” It has been the luck of the Europeans to produce, along with strong welfare states, at least minimally coherent libertarians; the United States has been largely stuck with the off-brand progeny of Hayek, Mises, and Schumpeter—and with the academic and think-tank salaries of those scholars once they exiled themselves to the land of the free.
The great merit of Gary Gerstle’s sweeping new overview of American history is that he somehow takes up this unpromising muddle and turns it into a defining paradox of our politics. The confusion about government power, for him, is due not to a uniquely American brand of anti-intellectualism; it is a product of a distinctive approach to sovereignty. “America’s federal system went beyond a simple division of powers,” he writes, calling to mind the standard explanation for the separation between state and national power. Instead, the American approach to federalism “organized the two major divisions of government . . . around different theories of power.”
The first of these theories is well known: the idea of restricted government embodied in the federal Constitution and the Bill of Rights. This logic, the basis of classical liberalism, grants government properly enumerated prerogatives (“The Congress shall have power to coin money”) and then restricts entire domains from all infringement (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”). But the Bill of Rights, Gerstle points out, following a line of argument laid down by legal scholars and ignored by many historians, affected only the federal government—from the founding to the 1920s, over 130 years, absolutely none of the amendments making up the Bill of Rights applied to the states, and most of the amendments remained unenforced at the state level until the ’60s.
Instead of a liberal theory of power, based on limited grants of power and protected rights, the states operated under what came to be called the “police power.” This approach had little to do with cops on the beat; rather, it encompassed the entirety of means that state and local governments could deploy to protect and enhance the “people’s welfare.” Here are just a few examples of its scope: State and local governments, under the banner of promoting the general good, could and did force companies to build railroads through particular towns, require banks to make loans to specific companies, establish standards of cleanliness for private residences, place severe restrictions on the freedom of the press, refuse to offer compensation to property owners whose buildings had been damaged by state action, conduct whatever searches and seizures they pleased, and ban business on days of religious observance as well as prohibit drinking at any time and place. “This principle of governance was not indifferent to individual rights,” Gerstle writes. “But it insisted that the enjoyment of personal freedom and individual rights depended on the carefully regulated society that government would construct.”
In other words, the contradictions between the liberal and the police theories of power help to explain how contemporary conservatives can simultaneously talk about getting government off our backs while attempting “to wrap their fellow citizens’ moral, cultural, and personal lives in thickets of governmental regulations.”
But Gerstle has not simply written a history of an abstruse nineteenth-century theory with some suggestive parallels to the present. The triumph of Liberty and Coercion is the way he links the asymmetries of the country’s two foundational theories of power to the largest political problems of the past hundred years. His is not the story of relentless waves of reformist centralization promoted by historians like Arthur Schlesinger Jr. in the 1950s and ’60s. Nor is it the narrative of federal rollback that Gerstle himself proposed after Reagan’s rise in the ’80s. The narrative remains punctuated by decisive turning points, but the main emphasis is on the longue durée. The central analytic categories focus on the techniques statesmen have habitually relied on in order to overcome the core incoherence between the liberal and police theories of power.
These techniques include a vast range of improvisations that Gerstle helpfully divides into three broad categories. The first is “exemption”—that is, the insistence that much of federal power can stretch beyond the purview of constitutional limitation, a claim most commonly heard in matters of foreign policy and war. The second is “surrogacy”—the bid to import broad new federal abilities into previously well-delimited grants of power. It was via this process that the Constitution’s postal clause, first used to establish the world’s largest mail-delivery network, was later employed to break railroad strikes and ban literature on contraception. The third technique is “privatization”—the old American habit of licensing groups of private citizens to pursue public objectives, be they the corporations that built the transcontinental railroads or the lynch mobs that enforced Jim Crow. Scholars—and especially political scientists—have studied each of these techniques before, but they have rarely been considered together, and never with the synthetic force of argument and acute sense of detail that Gerstle brings to his project.
The outcome of these techniques is the strange world we know so well today. The gradual erosion of the police power and the transfer of so much sovereignty to the central state, with its Bill of Rights and liberal theory of power, has not resulted in more limited government. Instead, the steady rise of federal power has largely been the upshot of a security state run wild, built on the illiberal foundation of “exemption.” Of course, exemption could never apply to issues too far outside the realm of foreign policy and security. Instead, under the watchful gaze of states’-rights absolutists, the leaders of federal expansion were obliged to call on “surrogacy” to legitimate almost their entire approach to domestic politics, so that the whole national regulatory apparatus now runs through the narrow strait of the commerce clause, and new federally enforced liberties of central importance, most notably the right of privacy, hang on the judicial discovery of hidden rights in the penumbras of the old. Finally, we have seen no end of state functions—from foreign aid to the enforcement of educational standards—in which “privatization,” always the most favored brand of American civic corruption, continues to metastasize, only now under a blandly euphemistic new name, the “private-public partnership.”
Gerstle keenly appreciates the impulses that lay behind the original theories of power, and he carefully enumerates the techniques policymakers have seized on in their efforts to overcome the contradictions. But the gridlock of contemporary politics has made clearer than ever before the degree to which the game itself is rigged. President Barack Obama’s pursuit of executive action on climate change and labor policy, for instance, shows the continuing power of improvisation. It also shows its limits: federal power as a glorified tinkering at the margins. Meanwhile, the Supreme Court has called into question even the most basic tenets undergirding the federal state, first by curtailing the reach of the commerce clause in the 1990s, and more recently by electing to annul the Affordable Care Act’s bid to tie in Medicaid funds with the broader expansion of state health coverage—a classic case of surrogacy, one that previous constitutional scholars would have no doubt deemed among the safest provisions of the 2010 health-care overhaul.
“Too large a gap between the federal government’s stated and actual intentions put its legitimacy at risk,” Gerstle observes. “Indeed, in no other industrialized country has the central state been forced to fight for its legitimacy as doggedly as in the United States.” So what is to be done? The subtext of Gerstle’s narrative, made explicit in his final chapter, is that dramatic and enduring change can come about only when the Constitution itself is engaged in battle. “The tools fashioned over the last 150 years . . . have been inadequate to the task at hand,” he argues. Gerstle contends that meaningful reform can come via a reinvigoration of the amendment process, an approach, he suggests, that “will open up an ideological space that allows a belief in a living constitution to take root,” even if no individual amendment secures passage.
In an era of conservative judicial dominance, hopelessly deadlocked electoral politics, and nascent social movements, this is well-considered advice. At the same time, it points up the largest flaw in this otherwise persuasive, learned, and measured book. For precisely what surrogacy, exemption, and privatization leave out is what might be called the constitutional mode of politics. From Andrew Jackson, who did not so much exempt his power from judicial review as simply ignore the Supreme Court; to William Lloyd Garrison, whose preferred mode of propagandizing for abolition was to burn the Constitution; to the radical Republicans, who passed the Thirteenth, Fourteenth, and Fifteenth Amendments; to the Progressives, who passed the Sixteenth, Seventeenth, Eighteenth, and Nineteenth; to Franklin Roosevelt, who secured the legal future of the New Deal by threatening to pack the Supreme Court, the act of calling for real constitutional revision, or even putting the document itself at stake, has been one of the primary ways, for good or for ill, to break an otherwise hopeless political impasse. It’s only since the court-packing 1930s that the politics of amending the Constitution have come to seem impossible. Since then, we’ve seen just one really significant new amendment to the document—the Twenty-fourth, with its important but also limited language banning the poll tax. This lone constitutional product of the civil rights movement bears inadvertent witness to the decline of our political imagination even in the midst of one of our greatest social revolutions. As Gerstle demonstrates, the trio of surrogacy, exemption, and privatization have a great deal to tell us about how we got into the present mess—but the neglected tradition of constitutional politics may have just as much to say about how we could get out of it.
Charles Petersen is a doctoral candidate in American studies at Harvard University and a senior editor of n+1 magazine.
