Myth of the “Weak” American State (2023)

TesAThe American present is dividedwith representations of the American past. The American present witnesses the constant expansion of executive, administrative, emergency, punitive, military, and war powers, while contemporary commentators such as Michael Hardt, Antonio Negri, and Giorgio Agamben discuss the contours of American hegemony and superpower in a new era of empire thinks.1 The global ramifications of contemporary American politics, political economy, and foreign policy are obvious to any casual observer of current affairs. The story of America's past, on the other hand, continues to be told in narratives that seem to go elsewhere. Rather than accumulating power, the story America tells itself more often illuminates a story of relative powerlessness, a normally benevolent story of self-denying legal politics that emphasizes constitutional restraints like federalism, checks and balances, separation of powers, limited government, the rule of law, and laissez-faire. Presented more positively, the history of the United States is generally portrayed as a search for freedom: the struggle for political freedom, liberation from slavery, the rise of civil, economic, and social rights. Property, contract, freedom of opinion, freedom of the press, and freedom of association form the constitutional backbone of a free market, a vital civil society, and democratic politics, hallmarks of a free people. Interestingly, key elements of this story are kept alive both in the older political histories of the American liberal tradition and in more recent histories that emphasize the rights and agency of particular cultural communities. Confronting the historic rise of the legal, political, economic, corporate, and technological mechanisms of power that currently shape much of the world is therefore a more difficult task than it should be. A true philosophical and political history of contemporary America continues to elude historians.2

This discrepancy between historical perception and political reality is not an entirely new phenomenon in the United States. As far back as 1887, Albert Shaw, in a haunting essay entitled The American State and the American Man, chided Americans for their laissez-faire fantasy: “The average American has an incomparable ability to entertain himself with legal fiction and related delusions. It lives in a world of theory and another world of practice... The people of the United States have not for a moment abandoned their [laissez-faire] theory and have assiduously pursued and cultivated practical policies totally contrary to that theory, and if I had not perceived the discrepancy." Shaw considered thousands of regulatory statutes passed by state legislatures in the late 19th century and concluded that "the one striking common feature of this vast body of new legislation was its utter disregard for laissez-faire faire. principle is... They take care of all imaginable relations with the citizen. It seems they have left nothing for future legislators to regulate.” One hundred years later, in the midst of Ronald Reagan's America, Senator Ernest “Fritz” Hollings (D-SC) similarly observed the powerful role of government in building modern life. and his departure from the American historical self-understanding. Seeking the 1984 Democratic nomination for president, Hollings delivered a campaign speech in which he delivered several different versions of a story about "a man who came home from the Korean War and went to college with a form of the GI Bill". started a business with a small business administration loan, made sure his parents' farm was properly connected through rural electrification and irrigated with support from the Army Corps of Engineers, watched his children attend school using lab equipment from a National Foundation for Science Grant, received school meal subsidies, obtained his mortgage from FHA and the hurricane relief agency from FEMA, and one day took AMTRAK to Washington to complain to his congressman about taking away great government to the people. collective power in the creation of your individual Declaration of Independence.3

Shaw and Hollings reveal a disconnect at the heart of the American experience: a tension between the story Americans like to tell themselves about individualism, self-reliance, voluntarism, freedom of association, free labor, and the free market, and the true story. of "tangible national institutions,"' as Shaw put it, that were able to exercise such broad powers of intervention, coercion, and regulation at home and abroad. Samuel Huntington once called this yawning gap between fact and norm "cognitive dissonance," an almost pathological tendency to mistake a fictional American ideal for historical political reality. From Thomas Jefferson's abolition of slavery in the Declaration of Independence to Ronald Reagan's anachronistic evocation of John Winthrop's glittering "City on a Hill," examples abound, and not all are rhetorical. Around the turn of the century, Roscoe Pound examined the damage done when the United States Supreme Court took a "big step back" and imposed the fallacy of "freedom of contract" on modern industrial relations, as if the parties were still independent. individuals. haggling to sell a horse." As Pound's example suggests, the problem lies less with psychology than with political economy. Shaw and Hollings bring to the fore a particular American version of the tension at the heart of social and political thought: the relationship between freedom and power, freedom and authority, contract and coercion, and law and violence.4

A crucial aspect of this tense American self-portrait concerns the nature, power, and scope of the American state. While much of modern history deals with the actions of powerful nation-states and the consequences of their rise, expansion, and sometimes decline, the discussion of the American state (arguably one of the most influential in memory recent) remains trapped in a different past. , and a curious Phrase. The phrase "the American state" is seen as an oxymoron in a country of supposed "anti-statism" and "no state." If recognized at all, the American version of a state is seen as somewhat immature, somewhat inferior, somewhat lax, somewhat underdeveloped compared to the mature governmental regimes that have dominated modern European history. A persistent and extraordinary trend throughout history to view the American state as decidedly "weak" continues to thwart any reckoning with American power in the 21st century. The emergence and resolution of this historical anachronism, the myth of the "weak" American state, requires further explanation.

TThe hackneyed myth of the "weak"Aamerican stateit is the history of American politics that theLochnerCourt is to American constitutional law and what laissez-faire is to American political economy. like the myths ofLochnerand laissez-faire, the idea of ​​a weak American state is the product of a broader tendency to read American history as extraordinary, as the story of the rise of a "new world," particularly outside the currents of history and the corruptions of "old" Europe. It is part of the myth of America as a place of rebirth: the American Adam emerging fresh from a true state of nature. As John Locke reflected with almost Biblical rhythm: “So was the whole world in the beginningAmerica.“5 The myth overemphasizes the so-called "natural" development of individualism, private rights, civil society, free labor, and a free economy in American history. And consequently, it downplays the more historical and "artificial" role of collective decision-making, public law, government, and regulation in the political and economic development of the United States. In this mythical tale, the state itself is seen as some kind of menacing European invention that will never truly find a place in a free, unregulated, stateless America.

The idea of ​​a weak American state has its roots in some classical sources and analysis. Alexis de Tocqueville's comparative emphasis on individualism, associationism, localism, and administrative decentralization led him to underestimate the power of the state in America. Although many of Tocqueville's prophecies about democratic and despotic tendencies are still relevant today, his prognosis about the development of the American state was largely inaccurate. “Unless I am strangely mistaken,” he qualified in 1835, “the federal government of the United States grows weaker every day; Step by step it withdraws from public affairs and narrows its sphere of action more and more. Being inherently weak, it gives up even the appearance of strength." G.W.F. Hegel continued the comparative European tradition of seeing something not quite realized in the American state. Given what he perceived to be "total immunity from public charge", Hegel questioned whether the United States was a "real state": "The general purpose of the existence of this state has not yet been established or determined, and there is no necessity of a fixed combination yet; for a real state and government arise only after a distinction of classes has arisen." But even after the socioeconomic transformations of the late nineteenth century, when class distinctions and public tensions accelerated markedly, a multitude of commentators continued to find the answer. to Werner Sombart's classic question "Why isn't there socialism in the United States?" in an exceptional American political culture that exhibits a characteristic anti-statism.6

But ironically, the heyday of the popular notion of the weak American state came in the mid-20th century, at the heart of Henry Luce's "American Century." In the midst of brutal conflicts with totalitarian states, American scholars have been reluctant to draw direct comparisons between US policies and European budget regimes. On the contrary, a proliferation of "American studies" placed a renewed emphasis on an exceptional national historical development: an American alternative.special way– rooted in negative liberty, voluntarism, self-serving liberalism, and a self-regulating market, all of which limit the role of government in America's social and economic progress. During intense political times, historians such as Arthur M. Schlesinger, Sr., Daniel J. Boorstin, and, to a lesser extent, Louis Hartz, have crafted a compelling and remarkably consistent national narrative that explains America's special path as the product of a lasting preference. for society over Community, individual initiative over collective action and private competition, and voluntariness over public regulation and government governance. Within this ideologically charged framework of interpretation, the history of the American state (and its purposes and public policies) all but disappeared. Even radical government and regulatory interventions dissolved into the intolerably light miasma of national cultural mythology. Typical was Schlesinger's invalidation of progressive reform: "In the American way, it was an undoctoral belief, the product of an adjustment to changing times to preserve the traditional spirit of self-sufficiency and free competition."7

But perhaps the most striking evidence of the resilience of the myth of the weak American state is the extent to which this Cold War fiction was revived only by the post-Cold War fascination with neoliberalism, deregulation, and privatization. Despite an impressive social science effort to “reintroduce the state” into the study of American history in the 1980s and 1990s, led by pioneering historical sociologists like Theda Skocpol and political scientists like Stephen Skowronek, the myth of the American state weak has persisted. . The general tendency to characterize the American state as a false pretext for Hegel's notion of a "real state" continues unabated despite the proliferation of state-focused analyzes of American political developments. As Skowronek characteristically concludes: “One anomaly begets another. American exceptionalism has not been overthrown by 20th century state-building, it has only taken a new form." This new form has produced a series of strange adjectives that have shaped the bibliographic landscape as scholars struggle to consolidate the power of Americans State Measurement and measurement instruments and models that seem to have been developed for a different time and place The modern American state is still routinely described as "extraordinary," "sloppy," "incomplete," "backward," "restless." ", "maternalistic", "reluctant" and "divided", reflecting the importance of historical typologies and teleologies first developed by European social theorists in the second half of the 19th century.8 The tendency to speak of the American state in the explicit terminology of "weak" versus "strong" has never been more prevalent. And for most commentators, the weak side of this polarity (in an unlikely turtle-rabbit twist) still seems to win out. The American state remains "a patchwork quilt," "an unfortunate giant," "a weakened fountain," "an incomplete conquest," and "a Tudor state"—in a word, an anachronism—in some of the historical contexts and most influential economic theoretical accounts.9

But, of course, the modern American state is far from an anachronism, and its particular power in the 21st century has already sparked a burgeoning historical revision. This review draws directly from the contributions of an impressive number of leading scholars: Morton Keller, Harry Scheiber, Samuel Hays, Ellis Hawley, Barry Karl, Louis Galambos, Theodore Lowi, David Mayhew, Otis Graham, Thomas McCraw, Martha Derthick, William Brock. , and Elliot Brownlee, among others, who bucked the trend and scrutinized the actual power and politics of the American state.10 Furthermore, this reconsideration would have been unthinkable if Theda Skocpol, Stephen Skowronek, Karen Orren, their contributors, and early contributors to such influential journals as Theda Skocpol, Stephen Skowronek, Karen Orren, and their early contributors did not bring new energy and insight to the studies. of the government would have stagnatedAmerican Political Development Studiesand thePolitical History Magazine. But this review has actually taken on a life and agenda of its own with a somewhat younger group of scholars: historians and political scientists, who came of age at a time when European state regimes seemed comparatively less threatening and more restrained. it is aggressively expanding around the world. The apparent contemporary reality of American state power at the turn of the 21st century forces a much-needed reassessment of the story of the rise of a global leviathan.11

The most significant and enduring tenet of this revisionism is that the American state is and has been more powerful, inclusive, persistent, interventionist, and redistributive than previous accounts of American history have acknowledged. The New Histories of the American State strive to capture one of the foundational facts of modern American history: the development of legal, economic, and geopolitical hegemony. That is what contemporary American historians must explain. Amid the tide of extraordinary analyzes of the limitations, weaknesses, and backwardness of the American state, American history has overlooked the elephant in the room: the growing authority of one of the most powerful nation-states in world history. .

Refocused on explaining this disturbing reality, American history reveals ample evidence of the building of American state power from the early days of the republic to the recent past. Max Edling, for example, recently refocused the founding story of the United States on the creation of a strong "fiscal-military" state, confirming Hannah Arendt's observation that "the true purpose of the American Constitution is not it was to restrict but to create more power, indeed to erect and duly constitute an entirely new center of power.” If ever there was a weak state in the United States, it might have been under the Articles of Confederation, a government that was quickly overthrown in a very conspicuous act of state building.Jerry Mashaw has also traced the origins of a powerful national administrative statute. and centralizing until the early days of the republic, challenging the historical fiction that a national bureaucracy and administrative regulator awaited the invention of the Interstate Commerce Commission.Richard John has almost single-handedly revisited notions of the century's lack of centralized government. Through his meticulous reconstructions of the pervasive role of the state in promoting and regulating the communications infrastructure, from the post office to the telegraph and telephone, Richard White placed federal power at the center of the new Western history. of the displacement of the Indians, the military and commercial development and the expansion n to the west. As the work of a generation of social and cultural historians makes clear, Indian resettlement, slavery, immigration restrictions, and forms of racial, ethnic, religious, and gender segregation and discrimination were not the product of laissez-faire or hesitation against the state or public authority. Preference to leave people alone. The state trail is over.12

The powerful role of the US state in overseeing labor was the dominant theme of the "state and unions" task. Richard Bensel and others have again called attention to the role of economic policy in creating a truly national (and later international) trade market in the United States. And police regulation of power has been no less present in the social arena, from temporary experiments like Prohibition to more lasting developments in criminal justice and criminal policy. It is worth remembering in this context that John Stuart Mills used classic examples of government overexertion into freedomIt came from the United States, not Europe: Sunday laws, alcohol regulations, and the persecution of Mormons.13

The creative forces of US fiscal, tax, price, and monetary policy are also attracting new attention. David Moss has documented the long history of active government regulation of risk in the United States. Michele Landis Dauber has traced the equally long history of national emergency and disaster relief. And a host of new stories by Christopher Howard, Jacob Hacker, Jennifer Klein, John Witt, and James Wooten have begun to reassess the powerful redistributive effects of America's "hidden" welfare and social security state. The explosive growth of the federal administration and bureaucracy in the 20th century has found new meaning in the stories of Sidney Milkis, Daniel Carpenter, and Brian Balogh. One can hardly explain the rise of American military might or national and international economic development—not to mention the role of prison, the death penalty, racial segregation, or war and emergency executive powers in American public life—by making continuous reference to tradition of the state of weakness. The idea of ​​the weakness of the American state, statelessness or anti-statism is quickly abandoned. Such formulations no longer explain the past and certainly not the present either.14

Especially in our current neoliberal era, we should not be fooled into thinking that somehow (post-New Deal and World War II, post-Great Society and Vietnam) the American state is reverting to a more familiar pattern of privatization, deregulation and laissez. fair. Despite the growing rhetoric, the power of the US government to regulate, study, order, discipline, and punish its citizens, as well as the citizens of other nations, was greater than ever. In confronting contemporary neoliberalism, we must adjust to what Sheldon Wolin calls the "paradox of power" in late modernity: that "power is simultaneously concentrated and disaggregated."quince

In contrast to the myth of the weak American state, the historical review, now well advanced, attempts to document the conscious and ongoing construction of new forms of state power throughout American history. This history of the development of the state does not fit into established categories such as classical liberalism versus modern social democracy, or Gilded Age conservatism versus progressive-era reform. And it's nothing like American notions of laissez-faire, voluntarism, or anti-statism. Instead, it is the story of the creation of extraordinarily powerful modern mechanisms of American government. Liberalism and the rule of law were crucial components of this new state regime. But as the Frankfurt social theorist Franz Neumann warned, one should not “fall victim to a historical error” in associating liberal and legal elements with weakness: “The liberal state has always been as strong as the political and social situation and the interests of society demand. It has made wars and put down strikes; it has protected its investments with the help of powerful armies, it has defended and expanded its borders with the help of powerful armies, it has restored "law and order" with the help of the police. to sovereignty and freedom. This complex nature of the American liberal state, embracing both force and law, sovereignty and liberty, contract and coercion, requires new methods of historical evaluation.sixteen

yon a provocative critique of a recent surveyIn historical sociology and political development, sociologist Andrew Abbott drew attention to the overwhelming bibliographical dominance of "the main European tradition" of classical social theory (Hegel, Marx, Weber, Durkheim, and their descendants) when it comes to reflecting on the social and political reality. conditions of Modernism and the almost total abandonment of American social theory (James, Peirce, Ward, Dewey, Cooley, Mead and Thomas). Abbott's observation is even more relevant when we consider models of modern state development. The main problem plaguing historical studies of the American state is the tendency to force American experiences into a theoretical framework designed around the rise of modern European nation-states more than a century ago. Above all, Max Weber's ideal types dominate these assessments from start to finish. Government organization and policy making are routinely measured against key features of Weber's modern statecraft: (1) a streamlined and pervasive legal and administrative order amenable to legislative change; (2) a bureaucratic apparatus of officials conducting official business by reference to an impersonal set of administrative regulations; (3) the power to bind—to govern and regulate by its laws—all persons (citizens) and all acts within the official jurisdiction of the state; and (4) the legitimate authority to use force, force, and coercion within the prescribed territory as prescribed by the duly constituted government. Unification, centralization, rationalization, organization, administration, and bureaucratization have become the theoretical hallmarks of essentially modern and fully developed states. Any deviation or anomaly from this European model is seen as a sign of underdevelopment, backwardness or delay, usually attributed to English or American idiosyncrasies. In the sociotheoretical teleology emanating from continental Europe, the American state is destined to fall short, predestined to the eternal status of a weak state.17

But is there an alternative model of state development? Is there a way to see the American state differently, new, from the inside rather than the outside? Are there other methods for evaluating the particular techniques, functions, and processes of the US government without reducing the differences to failures or deficiencies? Are there other explanatory tools that better explain the special power of the American government machine? Can we give the American state more room for interpretation?

The ongoing historical review is moving in this direction of seeing and demystifying the American state. Indeed, in the interstices of these new histories, we can begin to discern the contours of an American model of state development. Five themes in particular stand out: first, a simply growing appreciation of the historical strength of some states theoretically labeled "weak"; second, a pragmatic approach to the problem of power; third, a recognition of the importance of distribution in the construction of the American state; fourth, a realistic portrayal of the power of the American rule of law; and fifth, a critical interrogation of the public-private distinction.

Weak States Than Strong States. There was certainly a time when it made perfect sense to celebrate the European and Weberian attributes of centralization, rationalization, and bureaucratization as models of state strength and the epitome of political modernity. At the beginning of the 20th century, such states dominated the world scene and the future seemed to develop along the lines foreseen by classical social theory. However, from the perspective of the early 21st century, things look very different. Highly centralized and bureaucratic state apparatuses now look more old-fashioned than modern, reflecting a conventional view of politics that has been made increasingly obsolete by globalization, flexible specialization, outsourcing, networking, and the methods of open source organization and governance. Given the changing scale and social geography of the 21st century, the idealized state of classical social theory seems more like a vestige of the past than a harbinger of the future. Furthermore, the extent to which some highly centralized and bureaucratized authoritarian states have proven short-lived and surprisingly fragile in comparison to their English and American counterparts suggests that "strong" and "weak" may not fit well into classical typologies. Indeed, a number of scholars have recently begun to study the exceptional "strength" of states historically labeled "weak," particularly the United States.18

But in the end, the inverted exercise of showing weak states as strong and vice versa only further demonstrates the limitations of the existing theoretical framework and the imprecision of interpretive language. What do we mean when we talk about a weak or strong state? Are we talking about the organization of the public function or the sphere of public power? Are we talking about structure or function, process or substance, inputs or outputs, scope or scope, legislation or law enforcement, people or politics? Right at the point where an interesting factual discussion about the multifaceted nature of governance should begin, the debate between the weak state and the strong state usually turns into a rather flimsy (and endless) discussion about the correct unit of measure.

Sociologist Michael Mann offers a way out here with his helpful distinction between two different meanings of state power:despoticpower andinfrastructuralEnergy. Mann understands despotic power as the organizational capacity of state elites to govern without obstacles from other centers of power or from civil society. In contrast, infrastructural power refers to the positive capacity of the state to “penetrate civil society” and implement policies in a given area. Mann's distinction nicely explains some of the confusion surrounding the power of the American state. The American state (like the American revolution that produced it) is organized against despotic power. He is obsessed with the separation and distribution of powers and the creation of checks, balances, and balances within the formal constitutional organization of government: federal vs. state vs. local; Executive vs. legislative vs. Judicial; popularly elected versus appointed officials; short tenures versus lifetime tenures; large states versus small states; the creation of a fourth state power (administrative authorities) and a fourth independent power (press). To be sure, it is this fractured and dispersed organization of government that most have in mind when they speak too freely about American anti-statism or statelessness. Legal historian Willard Hurst defined American constitutionalism precisely in terms of this antidespotic penchant for balancing power and curbing the autonomous authority of state elites: "Any kind of organized power must be measured by criteria of ends and means not defined or applied by those in power immediately itself. It's as simple as that: we don't want to trust any group of power holders to be their own judge of what they use power for or how they use it."19

but during thedespoticThe power of the American state (until recently) may have been limited, the extent and scope of itsinfrastructuralPower is and always has been extensive. From the founding of the first national governmental institutions to the conquest of Western countries; from creating a vast public infrastructure to foster trade to building a powerful military and defense facility; From expanding state powers in surveillance, regulation, administration, and redistribution to inventing new ways to police citizens, aliens, race, morality, and gender relations in the production of national culture, the The infrastructural power of the American state seems limitless at times, even limitless as American legal, corporate, economic, and cultural forms spread throughout the world. It is this power, infrastructural power, that obscures commentary on the weakness or statelessness of the American state. And it raises the intriguing interpretive possibility that the same anti-despotic organization of the US state might actually increase its infrastructure capacity.

It is hard to imagine better models for measuring and comparing despotic state power than those developed by classical European social theory. After all, despotism has been the main problem of European political thought for most of its history. But to understand the power of infrastructure, the real power of government policies in action to have a real impact on populations, American social theory offers some advantages. The problem of a distinctly new type of coercive power emerging within popular sovereignties, democratic societies, and modern economies, a power that is more diffuse, less visible, less clearly identified with a single individual (i.e., the king). or an institution (ie, the king). , the church), sometimes both private and public, woven into the everyday substructure of modern social and economic organizations, was precisely the problem of early American social science. The pragmatism of William James and John Dewey, the institutional economics of Richard T. Ely and John R. Commons, the sociology of Lester Frank Ward and Charles Horton Cooley, and the functional jurisprudence of Roscoe Pound and Robert Lee Hale offer an alternative model for studying the development of the modern state.20

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pragmatism. One of the great achievements of the pragmatism of William James, John Dewey, and their followers was to forge a commonplace of skepticism about the capacity of abstract theories, formal definitions, ideal typologies, and metaphysical generalities of all sorts (which the legal realist Felix Cohen would later describe as "transcendental nonsense") to accurately reflect the real world. Rather than assess the practical world against ideal theoretical models, pragmatism advocated a more bottom-up approach: examining how ideas and institutions actually worked in the real world. Pragmatism advocated an anti-formalist, realistic, pluralistic, and instrumental approach to knowledge and research. He measured truth claims by examining outcomes: the actual effects and consequences of ideas and institutions in practice. As James so provocatively put it, truth was something that "happens to an idea": its "monetary value," its ability to carry us meaningfully from one place to another, giving meaning to human and historical experience. Instead of endless metaphysical debates about definitions, essences, norms, formulas, models, and basic principles, pragmatism fostered real social inquiry into the real-world consequences of an idea for living people.21

The influence of the pragmatic method resonated far beyond philosophy. In law, economics, sociology, political science, and history, pragmatic approaches defined American social theory and social science in the early 20th century. In the fields of law, governance and statecraft, pragmatism led to an impatience with technical discussions of the formal attributes of the "state", or the nature of the "rule of law" or the definition of "sovereignty", and to one seek a more sociological study of state policy and practice in action. John R. Commons, for example, discarded the intellectual surplus spent debating the nature of the state or sovereignty in favor of a more realistic examination of the day-to-day activities of government. Commons approached the state simply as a "going concern," which is best understood by looking at what he was actually doing in the real world. For Commons, "the state in reality" was nothing more than the "officials in action" of it. In the legal realm, the legal realist Karl Llewellyn has charted a similar detour away from the "myth, con, and gibberish" of the normative debate about the nature of law and toward the direct study of law in action rather than law. In theory. He echoed Commons' realistic, no-nonsense, action-oriented approach: “Doing something about a dispute is a matter of law. And the people who make the decisions, whether they are judges, sheriffs, clerks, jailers, or lawyers, are law enforcement officers.What these officials do in disputes, I think, is the law itself.. And the rules in all of this are important because they help you see or predict what the officials are going to do. That is all its meaning, except as a nice toy.22

In other words, the United States' pragmatic and realistic approach to the state avoided the kind of abstract, formal definitions and typologies that dominate state theory: the "pretty toys" that routinely underestimate the power of the American state. Instead, he recommended taking a close look at what state officials of all stripes (not just state elites, but mayors, councilors, clerks, regulators, tax collectors, administrative judges, police officers, jailers, grand juries, etc.) were doing. actually doing. The pragmatic perspective aimed at action-oriented "how" questions: how officials acted, how policy was made, how government worked, as opposed to more essentialist questions about the nature or essence of law or the state. Pragmatists viewed the state through "public action technologies" that influenced the behavior and daily practices of real people in the real world. This active, sociological view of public power - power is like power - stands a much better chance of fully understanding the American state.23

The distribution of power. One of the main reasons the power of the US government remains so hidden is that it is so widely dispersed in an extremely complex web of institutions, jurisdictions, branches, offices, programs, rules, customs, laws and regulations. More than 89,000 separate government entities operate in the United States. Below the national government and 50 states are 3,033 counties, 19,492 local governments, 16,519 municipal or city governments, 37,381 special county governments, and 13,051 school districts, with various levels of self-governing powers and other official subdivisions. Within the national government itself, the division, separation, and distribution of power can be overwhelming. The legislature includes 2 houses, 435 constituencies, and more than 200 committees and subcommittees. The judiciary includes 94 separate federal judicial districts, as well as a variety of special courts. The executive bureaucracy encompasses 15 separate departments and more than 137 federal agencies and commissions that printed nearly 80,000 pages of proposed rules, regulations, and orders in the Federal Register in 2006 alone.

One gets an even better idea of ​​the extraordinary breadth and diversity of America's governmental organization by looking at a single area of ​​policymaking, such as law enforcement. In 2004, nearly 18,000 state and local police departments employed 731,903 full-time law enforcement officers. Another 106,000 officers were employed by federal agencies such as the FBI, Federal Bureau of Prisons, and US Customs and Immigration. The 1995 and 1999 prison and prison censuses document a vast prison network that continues to grow: 3,365 local prisons with 605,943 inmates, 1,375 state prisons with 941,642 inmates and 125 federal prisons with 81,930 inmates. The US prison system employs more than half a million people. The District Attorney's Office in Cook County, Illinois alone employs more than 900 prosecutors. And that massive criminal justice system is dwarfed by America's vast military and national security apparatus. This extraordinary distribution of the bureaucracy is certainly not the product of a weak state. Nor is it a completely new invention. Viewed pragmatically, this proliferation of US government offices and official activities is something of a giant.24

The distinctive expansion of the American state is key to its distinctive strength and elusive nature. In classical European social theory, the state is vertically integrated through an organized hierarchy of offices with clear lines of streamlined authority, supervision, and appointment. The American state, on the other hand, is organized more horizontally. Power is separated and shared instead of integrated. Responsibilities often overlap and powers are routinely delegated down to relatively autonomous sub-units of government. Examples include the historical power of local school boards in the United States and the autonomous powers of autonomous communities. Police power, the government's perpetual authority to regulate in the interest of public health, safety and welfare, remains formally in the hands of states rather than national governments. Under the dual federalist terms of the United States Constitution, the national government has only explicitly delegated powers. The Tenth Amendment reserves all powers not delegated to the states or (more problematic for the classical theory of the state) to the people. So if you try to gauge the power of the American state or the reach of American public policy simply by looking at the national center or the federal bureaucracy, you are missing the place where much of what is happening is happening, at the local and state level. on the periphery As Jack Greene observed, US government began on the periphery and developed powers of self-government far from the imperial metropolis. This US state grew by developing effective mechanisms to police a diverse and ever-expanding territory. Confronting the American state requires a better understanding of this power on the periphery.25

While classical state theory focuses on assessing state power at the center, it is not as effective when it comes to measuring the extent of power to the borders. Peripheral power is, by definition, infrastructural power: the reach of the state to the confines of the empire. The techniques of effective peripheral government and infrastructure differ from the tactics of the former central despots, as different as the task of defending the majesty of the crown in the center is from policing the daily practices of the people on the frontier. In fact, anti-despotic governance structures are often prerequisites for effective infrastructure governance and peripheral expansion. The techniques of diffusion, distribution, delegation, incorporation, shared power, open and democratic processes, popular control and local self-government are not, therefore, necessarily signs of state weakness. On the contrary, in many cases they are the base of the infrastructural state strength. The American system of government, with its peculiar variety of techniques for distributing state action - shared sovereignty, separation of powers, federalism, delegation, incorporation, and the rule of law - allows for an extraordinary penetration of the state by civil society into the periphery. It also allows for a popular and legal legitimacy of government that has bypassed some of the more centralized despotisms.

The rule of law. A pragmatic approach to American state power, therefore, requires an examination of the state in action rather than in theory, bottom-up rather than top-down, considering periphery as well as core, horizontal organization as well as consolidation. vertical and distribution. , separation and delegation of powers as well as their centralization, rationalization and integration. There is another element without which it is impossible to fully explain state power in the United States, and that is the rule of law. One of the hallmarks of the American government is the central place of law in state formation and policy development. From the central role of the constitution in the creation of the nation to the proliferation of laws, courts, judges, lawyers, and legal rules in everyday policy making, America is clearly a constitutional or constitutional state.

But, like the distribution and separation of powers, the legality of the American state has been a constant source of confusion and misunderstanding. By emphasizing the non-say function of constitutional scrutiny, the rule of law is too often presented simply as a limitation or check on the power of the American state, as an impediment to the development of modern administrative or regulatory agencies. From the progressive stories of Charles Beard to the enduring mythology surrounding theLochnerThe court has consistently portrayed the law as some kind of conservative roadblock to liberal reform, part of an exceptional, reactionary American legal tradition that consistently thwarts the development of a proper American welfare state.26

But, as sociological jurists, legal realists, and legal historians have emphasized for some time, American law has functioned as much more than a constitutional constraint on the development of the state. Rather, the law has long been an indispensable and creative source for the expansion of political and economic power, and it has played a positive rather than a negative role in the creation of the modern American state. Willard Hurst was the leading exponent of such a realistic and positivist view of the power of law, noting that the law should be understood as "the application of politically organized coercion to men" rather than a "series of Thou Shalt Nots" directed at those who They are in power." ".should be will." Hurst's pioneering story documents the continued incorporation of law into state policymaking, from the instrumental transformation of contract, property, and tort in the 19th century to statutory law in the 20th century.27 It is difficult to explain the rise of a modern state in the United States without examining crucial changes in police and criminal law; contractual and non-contractual law; employment and immigration law; Corporate law; tax, financial and stock market law; regulation and administration; transportation and supply law; and laws affecting health, education and welfare. American state power is the product of legal processes of exceptional depth, variety, and durability. The outcome of these processes must be considered, whether as an executive order, federal law, judicial interpretation, statutory interpretation, administrative regulation, state legislation, municipal ordinance, or even everyday police action. Without full scrutiny of government action by statutes, courts, judges, and other legal officials, the power of the American state will remain elusive.

Scholars such as John Skrentny, Robert Lieberman, Desmond King, Paul Frymer, and Sean Farhang have recently reexamined the law as an important source of US government power.28 Even private litigation is increasingly seen as another distinctively American technology for achieving government ends through alternative means. In fact, four of the most far-reaching policy initiatives in recent U.S. history—civil rights, environmental protection, consumer and employment protection, and the Americans with Disabilities Act—have relied on private litigation as an enforcement strategy. public execution. And the sweeping scope and relative effectiveness of such policies should quickly dispel any impression that the law, courts, and judicial processes are somewhat "lesser" or "weaker" forms of government action. Rather, these examples demonstrate the extraordinary infrastructural power of the law: the ability of litigation to create a civic enforcement mechanism (so-called private attorneys general) that reaches deep into civil society and the periphery, far beyond the capabilities of the courts. largest central bureaucracy. When we add to this broad scope of law the unique ability to create its own internal standards of normative legitimacy, we have indeed a powerful tool of American state power.

public and private. The concept of attorneys general proposes one last crucial component in an American model of state building: the distinction between public and private. The extent to which US state power is penetrating the boundaries of civil society is perhaps best reflected in the way it defines and uses privacy. This crosses two paths. First, the US government has historically systematically used the private sector to achieve public ends. The private application of public law through private prosecution, the right to harassment, thebe with someone, and privately collected fines and fees are just one example. Using the founding powers of the state to promote the development of a national infrastructure by delegating special powers, such as eminent domain to bridge, canal and railway companies, is another. Private associations, including the New York City Committee of Fifteen, the American Social Hygiene Association, and the American Protective League, continued to play a role in law enforcement, social and moral policing, and collective self-defense until well into the 20th century. Instead of monopolizing power, property, and politics in the hands of a central public sovereign, the American state assigned public assets and authority to the private sector in less visible ways, to enforce its public capabilities, expand its jurisdiction, and thus thus enhance its legitimacy.29

While the history of private surveillance, government subsidies, and other delegations of public power to privacy is fairly well documented, the other side of the public-private distinction, the role of the American state in creating privacy, is widely recognized. less frequently. From the role of government acts in the formation of associations and corporations to the role of law in the control of property, the family, the market, and cultural life, the public powers of the rule of law have been central to the formation and the livelihood of American civil society. As Karl Polanyi commented on the market: “Economic history shows that the emergence of national markets was by no means the result of the gradual and spontaneous emancipation of the economic sphere from state control. Rather, the market is the result of deliberate and often violent government intervention. More recently, social and cultural historians have made similar arguments about the public construction of family, gender, and race relations.30

The most compelling analyzes of American power have always refused to divide the issue into a single public-private binary (eg, people vs. interests; public good vs. private law; state vs. individual; regulation). in front of the market). In contrast, realist and pragmatic approaches to American statehood emphasize the interpenetration of the public and private spheres: the convergence of public and private authority in everyday policy making. Central to this perspective is the recognition that American power has long been distributed among a series of individuals, groups, parties, associations, organizations, and institutions that cannot easily be characterized as whole.oAdvertisingoPrivate. Consider, for example, the hybrid public-private roles of the American Bar Association, the American Medical Association, Fannie Mae, the American Stock Exchange, the American Farm Bureau, the Federal Reserve, Underwriters Laboratories, the Ad Council, the American Legion, the American Red Cross, the YMCA, the East Bay Municipal Public Service District, and the National Rifle Association. The ambiguous public-private power at the center of these institutions is emblematic of the largest division of public and private authority in the United States. By emphasizing the everyday intersection between the legal-political and the socio-economic, the realist perspective reveals the ongoing interplay of public-private forces that all too often break down into more contentious issues: right and power, contract and coercion, autonomy and solidarity.31

The critical potential of such a perspective is suggested by the blueprints of American social rights theorists such as Wesley Newcomb Hohfeld, Morris Cohen, Walton Hale Hamilton, and Robert Lee Hale. The work of these scholars focused squarely on deconstructing the naturalistic claims of legal discourse, property, contract, and the market to belong solely to the higher plane of private liberty. In a series of influential articles and treatises, these theorists cataloged the role of law and the state in establishing and enforcing property rights and contracts. They inflated the fiction of the invisible hand and directly included the visible state in the legal-political structuring of the market. In the telling title "Property and Sovereignty," Cohen examined the fusion of private law and public power that "produced the character of property as a sovereign power that commands service and obedience." He reminded the property students that the ideal of "let doin fact, it was never fully functional.”Freedom by Law: Public Control of Private Governance, Hale further exposed the public powers behind seemingly private organizations and actions. He asserted that the public-private distinction obscures the role of the state in building the exchanges that have so determined the distribution of wealth and power in American history.32

The focus on the convergence of public and private power in the actual performance of the American state has two interpretive implications. First, it draws attention to the strong side of so-called weak state technologies by exposing public delegation to private groups of state monopoly power over the legitimate use of force (to use Max Weber's terminology). Second, the realist perspective draws attention to the normative implications of such redistributions of power. As Cohen and Hale argued, the distribution of wealth in the United States cannot be seen as an innocent byproduct of supposedly natural and essentially private market forces. In fact, this market itself was the product of public law and historical political decisions. It is well known that distribution claims are only difficult to raise from the perspective of "private" economics. But by exposing the "public" appropriation of property, contracts, and corporations in law and politics, the realist critique links the distribution of wealth directly to the distribution of power in a democratic republic. When we talk about the public and the private at the same time, both about democracy and the economy, distributive concerns must be taken more seriously. As Morris Cohen concluded, "It would be as absurd to argue that the distribution of property should never be altered by law as it would be to argue that the distribution of political power should never be altered."33

yoin his essay"...To dieFfirstPbeginnings ofGRAMSgovernmentDavid Hume reflected on the pervasive role of fiction and opinion in supporting governmental power, both despotic and democratic. “Nothing seems more surprising to those who view human affairs with a philosophical eye,” he observed, “than the ease with which the majority is ruled by the few; and the implicit submission with which men submit their own feelings and passions to those of their rulers. If we investigate how this miracle is performed, we will find that since the power is always with the governed, the rulers have nothing to support them except their opinion."34 From the divine right of kings to the sovereignty of peoples to the idea of ​​a government of laws and not of men, opiate fictions, national mythologies and historical fables about origin, promise and destiny have consistently impeded the great mass of public opinion asks too much about the changing nature and scale of modern governance.

The myth of the "weak" American state is one such fiction, a product of both reason and interest, perhaps even necessity. In an era dominated by both European states and the theory of the European state, the story of an extraordinary and weaker version of that state in the United States was predictable, perhaps even necessary. But given the dramatic changes in global history, politics, and statecraft over the last generation, the idea that the American state is weak is no longer reasonable or even interesting. It should be rejected. The extraordinary rise of power within the US regime demands critical attention and historical explanation, as do old and new patterns of international policymaking and legal and economic influence. Classic models of state theory, forged amid the constant threat of centralized despotism, may not be the best models for understanding the new forms of extended power that dominate the global political economy of the 21st century.

There is an alternative. In the early 20th century, in the midst of a first wave of national and economic consolidation and assertiveness, the American social sciences produced some new perspectives on power in all its forms: social, economic, political, and legal. The pragmatic, critical, and realistic assessment of American power, to some extent eclipsed by the exuberant outbursts of American exceptionalism that welcomed confrontations with totalitarianism and later terrorism, is worth reviving. From Lester Frank Ward and John Dewey to Ernst Freund and John Commons to Morris Cohen and Robert Lee Hale, early American socioeconomic theorists developed a critique of a thin, private, and individualistic conception of American liberalism, questioning the location, organization, and diffusion of liberalism. power in the modernized United States. Everyone understood the problem of power in America as complex and multifaceted, not simple or one-dimensional, especially with regard to the relationship between the State and civil society. Rather than spend endless time debating the correct definition of law or the correct empirical measure of the state, they focused on detailed investigations of power at work in the everyday practices and politics that defined American public life. Rather than limit the study of power to the abstract realm of political theory or the official political acts of elites, voters, interest groups, or social movements, these analysts advocated a broader conception of governance as "a activity that tends to arise when people are always connected.35 More important, amid the rhetoric of the law and the pious platitudes that routinely flow from American political life, these political and legal realists never forget the very real and concrete consequences of the deployment of legal and political power. They never forgot the brutal fact that Robert Cover later stated so provocatively at the beginning of his article "Violence and the Word" that legal and political interpretations take place "in a field of pain and death".36 The real consequences of American state power are all around us. In a democratic republic where power must always rest with the governed, writing the history of that power has never been more urgent.


Michael Hardt and Antonio NegriReich(Cambridge, Massachusetts, 2000); Giorgio Agamben,state of emergency(Chicago, 2005).


For some different examples of American history as a narrative of freedom, see Eric Foner,The history of American freedom(New York, 1999); Sarah M.Evans,Born to Freedom: A History of Women in America(Nueva York, 1997); Melvin I. Urofsky y Paul Finkelman,A Freedom March: A Constitutional History of the United States(Nueva York, 2001); David Hackett Fisher,Liberty and Liberty: A Visual History of America's Founding Ideas(New York, 2004); James M McPherson,Battle Cry of Freedom: The Civil War Era(New York, 2003); David M Kennedy,Freedom from Fear: The American People in Depression and War, 1929-1945(New York, 2001). Historians who have advocated an analytic history of the present include James Harvey Robinson,The New History: Essays Illustrating the Modern Historical Perspective(New York, 1912); Richard Hofstadter, "History and Social Sciences," in Fritz Stern, ed.,The diversity of history: from Voltaire to the present(New York, 1956), 359-370; Thomas Bender, "Hindsight: The New History: Then and Now",Reviews in American History12 (1984): 612-622; and Bender, "Whole and Parts: The Need for Synthesis in American History,"american history magazine73 (1986): 120-136. Such a perspective also encourages the work of James T. Kloppenberg,The virtues of liberalism(New York, 1998); david wreath,The Culture of Control: Crime and Social Order in Contemporary Society(Chicago, 2001); y Pierre Rosanvallon,past and future democracy, Hrsg. Samuel Moyn (New York, 2007).


Albert Shaw, "The American State and the American Man"contemporary review51 (1887): 696; EJ Dionne, Jr.,Why Americans Hate Politics, reprint ed. (New York, 2004), back cover. I am grateful to my colleague Jim Sparrow for bringing me the Hollings story. It echoes Sidney Webb's rhetorical point in Socialism in England.Publications of the American Economic Association4 (April 1889): 7–73, 65: “The individualist councilor will walk the sidewalk, lit with city gas and cleaned with city brooms with city water, and look by the city clock in the market of the city that he is also early to pick up his children, who coming from the city school near the county mental hospital and the city hospital will use the national telegraph system to tell them not to go through the city park but come by streetcar from the city to meet the city's reading room, the city's art gallery, museum and library, where he intends to consult some of the national publications in preparation for his upcoming town hall speech in favor of the nationalization of the canals and the increase of state control over the railway system. "Socialism, sir," he will say, "don't waste a practitioner's time with his fantastic absurdities. Self-help, sir, individual self-help, that's what made our city what it is."

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Samuel P. Huntington,American Politics: The Promise of Disharmony(Cambridge, Mass., 1981), 3 , 62; Roscoe Pound, "Libertad de contrato",Yale Law Review18 (May 1909): 454–487, 454.


John Locke,Two government treaties, edited by Peter Laslett (Cambridge, 1988), 301. Or as J. Hector St. John Crevecoeur discusses the image in his Letter IIILetters from an American farmer, "What is the American, this new man? ... He is an American who is leaving behind all his old prejudices and manners and gaining new ones through the new way of life he has adopted, the new government he has he obeys and the new rank he assumes.” Crevecoeur,Letters from an American Farmer and Sketches of Eighteenth-Century America(1782; Repr., New York, 1982), 38. For more contemporary commentary on this topic, see R. W. B. Lewis,The American Adam: Innocence, Tragedy, and Tradition in the Nineteenth Century(Chicago, 1955); and Arthur M. Schlesinger, "What then is the American, this new man?" at Schlesinger,paths to the present(Boston, 1964), 3–23.


Alexis de Tocqueville,Democracy in America, trans. George Lawrence, edited by JP Mayer (New York, 1988), 394-395. Like any would-be prophet, Tocqueville sought to achieve both. After arguing in favor of the weak state, he predicted the possibility of a contrary development: “When men notice that the weakness of the federal government threatens the very existence of the Union, it is sure to see a positive reaction of strength…A change of heart, an internal crisis or a war could return the necessary force with a single blow. How would it end? Tocqueville wisely concluded: "It lies hidden in the future, and I cannot claim to be able to lift the veil." Georg Wilhelm Friedrich Hegel,the philosophy of history, trad. J. Sibree (New York, 1956), 85-86; werner sobart,Why is there no socialism in the United States?trans. Patricia M. Hocking and CT Husbands (White Plains, N.Y., 1976). For the most recent account of this recurring theme, see Seymour Martin Lipset and Gary Marks,It Didn't Happen Here: Why Socialism Failed in the United States(New York, 2001); and lipstick,US State of Emergency: A Double-Edged Sword(New York, 1997).


Schlesinger,paths to the present, 22; Daniel J. Boorstin,The genius of American politics(Chicago, 1958); Louis Hartz,The liberal tradition in America: an interpretation of American political thought since the revolution(New York, 1955); John Higham, "Paradigm Shift: The Collapse of the Consensus Story",american history magazine76 (Sept. 1989): 460–466.


Peter B. Evans, Dietrich Rüschemeyer y Theda Skocpol, eds.,reintroduce state(New York, 1985); Theda Skocpol,Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States(Cambridge, Massachusetts, 1992); Skocpol,Social policy in the United States(Princeton, New Jersey, 1995); Stefan Skowronek,Building a New American State: The Expansion of National Administrative Capacity, 1877–1920(New York, 1982). These adjectives are from Skowronek,Building a new American state, 5,288; leapsocial policy, 12; y Barry D. Karl,The Uneasy State: America from 1915 to 1945(Chicago, 1983); Bruce S. Jansson,The Reluctant Welfare State: A History of American Social Policy(Belmont, California, 1988); jacob s hacker,The Divided Welfare State: The Struggle for Public and Private Social Services in the United States(Cambridge, 2002); and Seth Koven and Sonya Michel,Mothers of a New World: Maternalist Politics and the Origins of the Welfare State(New York, 1993).


Frank Dobbin and John R. Sutton, "The Strength of the Weak State: The Labor Rights Revolution and the Rise of Human Resources"american journal of sociology104 (1998): 441-476; Gary G. Hamilton and John R. Sutton, “The Problem of Control in the Weak State: Domination in the United States, 1880–1920,”theory and society18 (1989): 1-46; Robert C. Lieberman, "Weak State, Strong Politics: Paradoxes of Racial Politics in the United States, Great Britain, and France."American Political Development Studies16 (2002): 138-161. As J. P. Nettl summed up this stateless tradition in American social thought: "The relative 'statelessness' of American social science coincides with the relative statelessness of the United States, with the long period during which egalitarian society was sensitively predicted." and pluralist of Tocqueville". institutionalized fingertips on a vast continent. One has only to read [Seymour Martin] Lipset or [William C.] Mitchell to see that American sociopolitical introspection simply leaves no room for a valid notion of the state."world politics20 (Jul 1968): 559-592, 561; Lark,Building a new American state, 37,290; Wallace D. Farnham, „‚The Weakening Spring of Government: A Study of Nineteenth-Century American History“,American Historical Review68, no. 3 (April 1963): 662-680; Bertrand Badie and Pierre Birnbaum,The Sociology of the State(Chicago, 1983), 130; Theodore J. Lowe,US Government: Incomplete Conquest(Hinsdale, Ill., 1976); Samuel P. Huntington, "Political Modernization: America vs. Europe,"world politics18 (1966): 378–414, 382.


For a selection of these prolific authors, see Morton Keller,Affairs of State: Public life in the United States of the late 19th century(Cambridge, Massachusetts, 1977); harry n platter,Ohio Canal Era: A Case Study in Government and Economics, 1820–1861(Athens, Ohio, 1969); Samuel P. Hays,American Political History as Social Analysis(Knoxville, Tennessee, 1980); Ellis Hawley,The New Deal and the problem of monopoly(Princeton, Nueva Jersey, 1966); Barry Karl,The Uneasy State: America from 1915 to 1945(Chicago, 1983); Louis Galambos, Hrsg.The New American State: Bureaucracies and Politics Since World War II(Baltimore, Maryland, 1987); Theodore J. Lowe,The End of Liberalism: Ideology, Politics, and the Crisis of Public Authority(New York, 1969); David R Mayhew,Divided, We Rule: Control, Legislation, and Party Investigations, 1946–1990(New Haven, Connecticut, 1991); Otis L.Graham,Toward a planned society: from Roosevelt to Nixon(New York, 1976); Thomas K. McCraw,Prophets of regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn(Cambridge, Massachusetts, 1984); Martha Derthick, Hrsg.,Dilemmas of Scale in American Federal Democracy(New York, 1999); William R. Brock,Investigation and Accountability: Public Accountability in the United States, 1865–1900(New York, 1984); W. Elliot Brownlee, Hrsg.Modern American Government Financing, 1941–1995: The Rise and Fall of the Easy Funding Era(New York, 1993).


The bibliography by Karen Orren and Stephen Skowron,The Pursuit of American Political Development(New York, 2004), provides an excellent guide to the first wave of political science studies. For more recent assessments consistent with the direction of this article, see Desmond King and Robert C. Lieberman, "Ironies of State Building: A Comparative Perspective on the American State" (forthcoming, 2008); Peter Baldwin, "Beyond the Weak and the Strong: Rethinking the State in the History of Comparative Politics",Political History Magazine17 (2005 Nov): 12-33; and Richard R. John, editors,Ruling Passions: Political Economy in Nineteenth-Century America(University Park, Pensilvania, 2006).


Max M Edling,A Pro-Government Revolution: Origins of the United States Constitution and the Formation of the American State(New York, 2003); Hanna Arendt,About the revolution(New York, 1963), 152; Jerry L. Mashaw, "Restoration of American Administrative Law: Federal Endowments, 1787–1801",Yale Law Review115 (2006): 1256–1344; Richard R. John,Spreading the News: The US Postal System from Franklin to Morse(Cambridge, Mass., 1995); John, "Government Institutions as Change Agents: Rethinking American Political Development in the Early Republic, 1787–1835",American Political Development Studies11 (1997 case): 347-380; John Lauritz Larson,Internal Improvement: National Public Works and the Promise of People's Government in the Early United States(Chapel Hill, North Carolina, 2000); Mark R. Wilson,The Business of the Civil War: Military Mobilization and the State, 1861–1865(Baltimore, Maryland, 2006); ricardo blanco,"It's Your Misfortune and None Mine": A New History of the American West(Norman, Oklahoma, 1991); Don E. Fehrenbacher,The Slaveholding Republic: An Account of the United States Government's Relations with Slavery(New York, 2001); Mae M.Ngai,Impossible Subjects: Illegal Aliens and the Making of Modern America(Princeton, Nueva Jersey, 2005); Gary Gerstle,American Crucible: Race and Nation in the Twentieth Century(Princeton, NJ, 2002); Nayansha,Contagious Divisions: Epidemics and Races in San Francisco's Chinatown(Berkeley, California, 2001); sarah barringer gordon,The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America(Chapel Hill, North Carolina, 2002); Barbara Junge Welke,Recasting American Liberty: Gender, Race, Justice, and the Railroad Revolution(New York, 2001).


Christopher L. Tomlins,The State and the Unions: Law and the Organized Labor Movement in the United States, 1880–1960(Nueva York, 1985); Nelson Lichtenstein y Howell John Harris, eds.,Industrial democracy in the United States: the ambiguous promise(New York, 1993); William E. Forbath,The law and the formation of the American labor movement(Cambridge, Massachusetts, 1991); Daniel R. Ernst,Lawyers Against Labor: From Individual Rights to Corporate Liberalism(Urban, Ill., 1995); Ernst, "American Law and Political Development, 1877-1938",Reviews in American History26 (March 1998): 205-219; Ricardo Franklin Bensel,The Political Economy of American Industrialization, 1877–1900(New York, 2000); Colleen A. Dunlavy,Politics and Industrialization: Early Railroads in the United States and Prussia(Princeton, NJ, 1994); Richard Sylla, "The Progressive Era and the Political Economy of Big Government",critical review5 (1992): 531–557; Richard F Hamm,Shaping the Eighteenth Amendment: Temperance Reform, Legal and Political Culture, 1880-1920(Chapel Hill, Carolina del Norte, 1995); Michael Willrich,City of Courts: Socializing Justice in Chicago's Progressive Era(New York, 2003); David S. Tanenhaus,Juvenile justice in the making(New York, 2005); Rebecca McLennan,The Incarceration Crisis: Protest, Politics, and the Making of the American Penal State(New York, 2008); Markus Dirk Dubber and Mariana Valverde, eds.,The New Police Science: Police Power in National and International Governance(Palo Alto, California, 2006); john stuart mill,"On Freedom" and other writings(Cambridge, 1989), 89–91.


Julian E. Zelizer,America's Taxes: Wilbur D. Mills, Congress and State, 1945–1975(New York, 2000); Ajay K. Mehrotra, "Imagining the Modern American Tax State: Progressive-Era Economists and the Intellectual Underpinnings of the US Income Tax."UCLA Law Review52 (agosto de 2005): 1793–1866; me jacobs,Paperback Politics: Economic Citizenship in Twentieth-Century America(Princeton, NJ, 2005); David AMoos,When all else fails: the government as the ultimate risk manager(Cambridge, Massachusetts, 2002); Michele Landis Dauber, "Fate, Responsibility, and Disaster Relief from 'Nature': Telling the American Welfare State,"Law and society magazine33 (1999): 257–318; Christopher Howard,The Hidden Welfare State: Fiscal Spending and Social Policy in the United States(Princeton, NJ, 1997); Hacker,The shared welfare state; jennifer small,For All These Rights: Business, Work, and the Shaping of America's Public-Private Welfare State(Princeton, NJ, 2003); Johannes Fabian Witt,The Accidental Republic: Crippled Workers, Destitute Widows, and the Reshaping of American Law(Cambridge, Massachusetts, 2004); James A. Wooten,The Employee Retirement Income Security Act of 1974: A Political History(Berkeley, California, 2004); Michael B. Katz,The Price of Citizenship: Redefining the American Welfare State(New York, 2001); Edward D. Berkowitz,America's Welfare State: From Roosevelt to Reagan(Baltimore, Maryland, 1991); Sidney M. Milkis,The President and the Parties: The Transformation of the American Party System Since the New Deal(New York, 1993); daniel P Carpenter,The Forge of Bureaucratic Autonomy: Reputation, Networks, and Political Innovation in Executive Agencies, 1862–1928(Princeton, NJ, 2001); Brian Balogh,Chain Reaction: Expert Debate and Public Participation in American Commercial Nuclear Power, 1945–1975(New York, 1991); Joanna Lynn Grisinger, "Reforming the State: Reorganization and the Federal Government, 1937-1964" (PhD thesis, University of Chicago, 2005); David Garland, "The Death Penalty and American Culture"punishment and society7 (2005): 347-376; Bartolomé H. Sparrow,Outside In: World War II and the American State(Princeton, NJ, 1996); Michael J Hogan,An Iron Cross: Harry S. Truman and the Origins of the National Security State, 1945–1954(New York, 2000); James T. Sparrow, "Americanism and Rights: Empowering Big Government in an Age of Total War" (unpublished ms.); Ira Katznelson and Martin Shefter, eds.,Shaped by War and Trade: International Influences on American Political Development(Princeton, NJ, 2002).


Sheldon S. Wolin,Politics and Vision: Continuity and Innovation in Western Political Thought, extended edition. (Princeton, NJ, 2004), xxi; David Harvey,A brief history of neoliberalism(New York, 2005); John L. Comaroff and Jean Comaroff, eds.Millennial capitalism and the culture of neoliberalism(Durham, North Carolina, 2001).


Franz L. Neumann, „The Changing Role of Law in Modern Society“, in William E. Scheuerman, Hrsg.,The constitutional state under siege: selected essays by Franz L. Neumann and Otto Kirchheimer(Berkeley, California, 1996), 101-141, 101. See also Paul Starr,The Power of Liberty: The True Power of Liberalism(New York, 2007).

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Andrew Abbott, "A Brief Note on Pasturization",International Journal of Comparative Sociology47 (2006): 343-348. Abbott attributed this dominance of European over American social theory to "the long, long shadow of Talcott Parsons." Talcott Parsons,The structure of social action: a study in social theory with special reference to a group of recent European writers., 2 volumes (New York, 1937); Charles Camic, "Reputation and Predecessor Selection: Parsons and the Institutionalists",American Sociological Journal57 (August 1992): 421–445. Max Weber,The theory of social and economic organization, trans. AM Henderson and Talcott Parsons (New York, 1947), 154-156; weaver,Economy and Society: A Study in Interpretive Sociology, eds. Günther Roth and Claus Wittich, 2 vols. (Berkeley, California, 1978), 1: 217-220; Anthony Gidens,Capitalism and modern social theory: an analysis of the writings of Marx, Durkheim and Max Weber(Cambridge, 1971); Bob Jessop,State theory: putting the capitalist state in its place(Cambridge, 1990).


On the connection between proportions, social geography and statecraft, see Benjamin Constant,political writings(Cambridge, 1988); Craig Calhoun, "The Infrastructure of Modernity: Indirect Social Relations, Information Technology, and Social Inclusion," in Hans Haferkamp and Neil J. Smelser, eds.,Social change and modernity(Berkeley, Calif., 1992), 205-236; and Manuel Castells,The rise of the online society(Oxford, 2000). Dobbin and Sutton, "The Strength of the Weak State"; Lieberman, "Weak State, Strong Politics."


Michael Mann, "The Autonomous Power of the State: Its Origins, Mechanisms, and Results," in John A. Hall, Hrsg.,states in history(Oxford, 1986), 109-136; James Willard Hurst, "Legitimacy Issues in the Contemporary Legal Order",Oklahoma Law Review24 (1971): 224-238, 225; cough,Judge Holmes on legal history(New York, 1964), 29, 31. For a more detailed discussion of this point, see William J. Novak, "Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst,"Legal and historical review18 (2000): 97–145.


For proof, see William James,Pragmatism: a new name for some old ways of thinking(New York, 1907); John Dewey,Liberalism and Social Action(Nueva York, 1935); Richard TEly,Property and contract in its relation to the distribution of wealth, 2Bde. (Nueva York, 1914); John R. Commons,Institutional economics: its place in political economy(New York, 1934); Lester Frank Ward,dynamic sociology; or applied social sciences(New York, 1898); Charles Horton Cooley,Social Organization: A Study of the Higher Mind(New York, 1909); Roscoe Pound, "Scope and Purpose of Sociological Jurisprudence," 3 pt.,Harvard Law Review24 (1911): 591-619; 25 (1912): 140-168, 489-516; Robert Lee Hale, "Coercion and Distribution in a Supposedly Non-Coercive State",Quarterly journal of political science38 (1923): 470–494.


Felix Cohen, "Transcendental Nonsense and the Functional Approach",Columbia Law Review35 (1935): 809–849; Jaime,pragmatism, 74, 201. For the best treatment of American pragmatism, see James T. Kloppenberg,Uncertain Victory: Social Democracy and Progressivism in European and American Social Thought(New York, 1986).


John R. Commons,The legal foundations of capitalism(Madison, Wisconsin, 1957), 367; The commons,A Sociological View of Sovereignty, 1899–1900(Nueva York, 1965); Karl N. Llewellyn,The bush: some readings on the law and its study(New York, 1930), 3–5.


Heinrich Hartog,Public Ownership and Private Power: The New York City Society in American Public Law, 1730–1870(Chapel Hill, North Carolina, 1983), 66.


United States Department of Commerce,government census(Washington, DC, 2007); United States Department of Justice,Census of state and local law enforcement agencies(Washington, DC, 2004); United States Department of Justice,Census of Federal Law Enforcement Officials(Washington, DC, 2004); United States Department of Justice,Census of State and Federal Correctional Institutions(Washington, D.C., 1995); United States Department of Justice,Prison Census(Washington, DC, 1999).


Thomas J. Sugrue, "All Politics Is Local: The Persistence of Localism in Twentieth-Century America," in Meg Jacobs, William J. Novak, and Julian E. Zelizer, Hrsg.,The Democratic Experiment: New Directions in American Political History(Princeton, NJ, 2003), 301-326; David Barron, "Taking Back the House Rules"Harvard Law Review116 (2003): 2255–2386; Guillermo J. Novak,The Good of the People: Law and Regulation in Nineteenth-Century America(Chapel Hill, North Carolina, 1996); Edward S. Corwin, "The Enactment of Dual Federalism,"Virginia Law Review36 (1950): 1-24; Harry N. Scheiber, "Federalism and Legal Process: Historical and Contemporary Analysis of the American System,"Law and society review14 (1980): 663–722; Jack P. Greene,Peripheries and Center: Constitutional Development in the Enlarged Policies of the British Empire and the United States, 1607–1788(Athen, Ohio, 1986).


See, for example, Charles A. Beard,Contemporary American History, 1877–1913(New York, 1914); J.Allen Smith,The growth and decline of constitutional government(New York, 1930); Frank J. Goodnow,social reform and constitution(New York, 1911); Benjamin R. Twiss,Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court(Princeton, New Jersey, 1942); Arnold M.Paul,Conservative Crisis and the Rule of Law: Attitudes of Lawyers and Banks, 1887–1895(Ithaca, New York, 1960). For a critical discussion of this literature, see William J. Novak, "The Legal Origins of the Modern American State," in Bryant Garth, Robert Kagan, and Austin Sarat, eds.,A retrospective look at the century of law: time, memory, change(Ithaca, New York, 2002), 249–283.


Hurst, "Legitimacy Issues," 228; James Willard Hurst,Law and Economic Growth: The Legal History of the Wisconsin Timber Industry, 1836–1915(Cambridge, Massachusetts, 1964), 109.


John D. Skrentny, "Law and the American State",annual journal of sociology32 (2006): 213–244; Lieberman, "Schwacher Staat, starke Politik"; Desmond King, "The American State and Social Engineering: Policy Instruments in Affirmative Action",guide20 (2007): 109-126; Paul Frymer, "Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in US Unions, 1935-1985"American Journal of Political Science97 (2003): 483–499; Sean Farhang, “The Litigation State: Public Regulation and Private Lawsuits in the American Separation of Powers System” (Dissertation, Columbia University, 2005).

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See, for example, Allen Steinberg,The Transformation of Criminal Justice: Philadelphia, 1800–1880(Chapel Hill, North Carolina, 1989); Gautham Rao, "The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and the Art of Being in Mid-Nineteenth Century America,"Legal and historical review26 (primavera de 2008): 1-56; Scheiber,Ohio-Canal-No; Paul Wallace Doors,History of the development of basic public law(Washington, DC, 1968); committee Of Fifteen,social evil(New York, 1900); Allan M Brandt,No Magic Bullet: a social history of venereal disease in the United States since 1880(New York, 1985); Christopher Capozzola, "The Only Badge You Need Is His Patriotic Passion: Surveillance, Coercion, And The Law In World War I America,"american history magazine88 (March 2002): 1354-1382; William J. Novak, “Public and Private Governance: A Historical Introduction,” in Jody Freeman und Martha L. Minow, Hrsg.government by contract(Cambridge, Mass., forthcoming).


Carlos Polanyi,The Great Transformation: The Political and Economic Origins of Our Time(Boston, 1944), 258; James Willard Hurst,The legitimacy of the business corporation in United States law, 1780–1970(Charlottesville, Virginia, 1970); Pauline Maier, "The Revolutionary Origins of Corporate America"William and Mary Quarterly, 3rd ed., 50 (1993): 51-84; William J. Novak, "The American Right to Organize: The Legal-Political Construction of Civil Society,"American Political Development Studies15 (2001): 163-188; Heinrich Hartog,Man and Woman in America: A Story(Cambridge, Massachusetts, 2000); Jorge Chauncey,Gay New York: Gender, Urban Culture, and Gay Men's Achievement, 1890–1940(New York, 1994); The,American Liberty Recast.


Siehe zum Beispiel Gail Radford, „From Municipal Socialism to Public Authorities: Institutional Factors in Shaping the American Public Enterprise“,american history magazine90 (diciembre de 2003): 862-890; Elisabeth S. Clemens, "Lines of State Rube Goldberg: Making and Blurring Public Programs, 1900–1940", en Ian Shapiro, Stephen Skowronek y Daniel Galvin, eds.,Rethinking Political Institutions: The Art of the State(New York, 2006), 380-443; Adolf A. Berle and Gardiner C. Mittel,Modern society and private property(New York, 1968); VO key,Politics, parties and interest groups(Nueva York, 1942); Grant McConnell,Private power and American democracy(New York, 1966); bass,the end of liberalism; Keller,affairs of state.


Wesley Newcomb Hohfeld, "Fundamental Legal Concepts Applied in Judicial Reasoning,"Yale Law Review26 (June 1917): 710-770; Morris R. Cohen, "Ownership and Sovereignty,"Cornell Law trimestral13 (1927): 8–30, 12, 22; walton hale hamilton,Industry policy.(New York, 1957); Robert Lee Hale,Freedom by Law: Public Control of Private Governance(New York, 1952). For a concise analysis see Joseph William Singer, "Legal Realism Now,"California Law Review76 (March 1988): 465-544.


Cohen, "Property and Sovereignty," p. 16. For a compelling recent statement on this topic, see Larry M. Bartels,Unequal Democracy: The Political Economy of the New Golden Age(Princeton, NJ, 2008).


David Hume, "Of the First Principles of Government," in Hume,Essays: Moral, Political and Literary(1742; Repr., Indianapolis, 1985), 32.


Michael Oakeshott,Morality and politics in modern Europe: the Harvard lectures(New Haven, Connecticut, 1993), 7. For different but equally comprehensive concepts of governance, see Graham Burchell, Colin Gordon, and Peter Miller, eds.,The Foucault Effect: Studies in Governmentality(Chicago, 1991); niklas rosaForces of Liberty: Reshaping Political Thought(New York, 1999).


Robert M. Cover, "Violence and the word",Yale Law Review95 (1986): 1601–1629.

Guillermo J. Novakis an associate professor of history at the University of Chicago and a research professor at the American Bar Foundation. His books includeThe Good of the People: Law and Regulation in Nineteenth-Century America(University of North Carolina Press, 1996) and a co-published collection,The Democratic Experiment: New Directions in American Political History(Princeton University Press, 2003). He is currently working on a legal history of the American state from the Civil War to the New Deal.

The author thanks Alain Chatriot, Jane Dailey, Colleen Dunlavy, Gary Gerstle, Richard John, Jim Kloppenberg, Ajay Mehrotra, Margaret Novak, Steve Pincus, Gautham Rao, Pierre Rosan-vallon, Steve Sawyer, Stephen Smith, Jim Sparrow, and Michael Willrich . , as well as the anonymous reviewers of theAHR, for their readings and suggestions. Earlier versions of this essay have been presented to helpful audiences at the École des hautes études en sciences sociales, the University of Michigan, New York University School of Law, the University of Pennsylvania Law School, the Faculty of of Law at the University of Chicago, the Yale Workshop on American Politics, and the annual meeting of the American Political Science Association.

© 2008 American Historical Association. All rights reserved.

American Historical Association

© 2008 American Historical Association. All rights reserved.


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