Abstract
This is an ambitious and challenging book. It makes bold claims, with historical depth and scope, and with a command of expansive literatures in law, public administration, and American political development. As the title suggests, it also poses a novel theory of the American state and its evolution. This lofty goal deserves to be taken seriously, although doing so yields uneven results. The book reads at times like a project that is still under construction, with sections that are brilliant alternating with those that are vague or tendentious. That can be intriguing for a scholarly audience, but it may make for a challenging and perhaps confusing read for graduate students in public administration and political science.
The essential argument of the book is that our original Constitutional regime has been transformed by accretions of public policy over time into a “policy state,” wherein “policy has infiltrated every aspect of American life” and “spews out of every corner of the state apparatus” (p. 6). These policy accretions have shaped and altered our institutional structures. Going beyond the concept of path dependence, the authors argue that the policy state has been the product of bold policy breakthroughs as well as incremental adjustments along pre-established paths. The end result, they suggest, is a mess: A system characterized by excessive gamesmanship by policy entrepreneurs, the dissolution of institutional barriers to “hegemonic” government, and the transformation of a system based on rights to one dominated by public policy.
This latter point is central to the authors’ argument. They argue that the Constitution not only established but was premised on a system of limited government that was narrowly circumscribed by a traditional regime of rights—rights of family relations, property, and contracts. This limited regime was reinforced in the Constitution by a powerful system of separation of powers. Federalism kept the national government out of most areas of important domestic policy, while a strict separation of legislative, executive, and judicial powers constrained federal policy makers in their remaining restricted responsibilities.
Over time, say the authors, these structural constraints were gradually—and sometimes suddenly—broken down by the relentless march of policy making. The strict separation of responsibilities under dual federalism was replaced by the policy promiscuity of cooperative and coercive federalism. The horizontal separation of powers gave way to presidentialism, the rise of the administrative state, and routine legislative interference in executive administration. All have been driven by relentless demands for more policy solutions to our ever-changing mix of problems.
This is a bold and intriguing argument, which may be oversimplified here in part because of the authors’ penchant for the dramatic. The book is replete with sentences such as “greater reliance on policy has the consequence of rendering all aspects of state authority more homogenous and making each more difficult to pin down.” (p. 6) Claims such as this are both sweeping—all aspects of state authority?—and frustratingly vague; how precisely do we “pin down” the homogeneity and other aspects of state authority?
Or take their argument concerning rights, which they consider to be “the counterpoint motive—what policy is not” (p. 29). In their view, rights structured our founding regime, functioning as genuine “trumps.” Now they are said to represent little more than politically contested bargaining chips in the opportunistic politics of the modern state. Today, “the dominant motive has shifted from rights to policy” (p. 41). This is an interesting and provocative thesis, in part because many have argued the opposite: that modern politics are defined by a preoccupation with rights, and that contemporary policy has been sculpted by the expansion of rights—to previously overlooked or discriminated against groups, to criminal defendants in state courts, by Congress’s conferral of new procedural rights and rights of action via statutes such as the Americans with Disabilities Act, or by the Court’s increasingly rigid devotion to expansive interpretations of certain First Amendment rights. This latter case elicits an acknowledgment from the authors that “First Amendment freedom of speech is far more generously endowed today than when it was written.” But rather than calibrate their argument accordingly, or seek to integrate the roles played by norms and obligations as well as rights in traditional American society, the authors fall back on the power of assertion: The most important question for us, however, is not the endowment of a given right or the changing priority afforded one right over another over time, but the strength of rights as a category within the polity overall. In the policy state, the motive of rights is subordinated to the motive of policy. (p. 43)
To help support such claims, the book tends to contrast contemporary governance with selective characterizations of the past. The discussion of federalism in Chapter 4 is a good example. The authors note that contemporary federalism lacks the clearly defined roles and structural rigidities of 19th-century federalism and argue that this incentivizes opportunistic behavior by policy makers. But their evaluation of the scope of change is predetermined by their starting point. Here and elsewhere they begin with a depiction of the founding era designed to magnify the degree of change. The framers’ intent is deduced, not from the Federalist Papers or Madison’s notes on the Constitutional Convention, but rather Madison’s political arguments in opposition to the Alien and Sedition Act and from the statements of compact theory advocates like John Randolph and John C. Calhoun. This serves to maximize the distance we have traveled, but there are of course competing interpretations that diminish that distance. The national theory propounded by Hamilton, Webster, and Lincoln and expressed in the decisions of the Marshall Court provides an alternative and arguably superior starting point. And, at the behavioral level, research on the cooperative elements of 19th-century federalism warrants at least as much attention as the Supreme Court’s doctrines in the Slaughterhouse Cases.
Nor is it evident that the early regime was as devoid of public policy as the authors maintain. Education is a case in point. The Land and Northwest ordinances proclaimed that “schools and the means of education shall forever be encouraged” and established a system for doing so in the Northwest Territories and newly admitted states. George Washington and others advocated on behalf of a national university. The public school movement was underway well before the Civil War, while the Land Grant College Act was adopted during the war, and federal aid to education was a major agenda item in the decades following it. Nor was education unique, as there was policy aplenty at all levels of government throughout the 19th century, albeit aimed at the needs of a developing agrarian economy rather than those the 21st century: transportation between segmented markets, banking laws and institutions for commerce, tariffs for promoting domestic manufacturing, and policies promoting settlement and agriculture in the West. With the acceleration of industrialization, immigration, and urbanization following the Civil War came policy initiatives in veterans’ and dependents’ care, transportation, public health, labor laws, and nascent public welfare laws. The instruments and focus of policy have evolved, but the “policy motive” has been with us for a very long time.
All of this raises the question of explanation. The authors’ focus is largely on endogenous factors in the evolution of governance. Classic exogenous factors in public sector growth and evolution are surprisingly absent. There is little mention of war and depression as factors that have helped to propel governmental growth and institutional development, or the roles played by economic modernization and technological change in the evolution of the policy state. The authors’ focus on public policy’s role in shaping institutional evolution and change is welcome, but it would be more complete had they acknowledged and incorporated other causal variables.
In the end, where does the book take us? After elaborating on the institutional dysfunction of the policy state, the authors confess that “we offer no proposal to fix it.” But they do arrive at a conclusion, which could have organized and informed the entire volume. “The policy state is not a mistake, nor is it outside of the American tradition,” they write in their concluding pages. “It is, first and foremost, a solution, or a composite of solutions; it was an essential part of the American success story.” The problem, they claim, is that this solution has placed us in a tragic predicament. For all of its successes, the policy state has undermined its own legitimacy, creating a “crisis of authority that has been building for decades.” Neither the right nor the left has the answer to this predicament. Conservatives yearning for a return to “first principles” and minimal government ignore the activist impulses and nationalist intentions of the Constitution and the inequality and incapacity of the traditional regime. Liberals’ confidence in the underpinnings of the progressive state—science, education, and neutral competence—is no longer universally shared. The tragedy of the policy state requires us to recognize its successes and benefits as well as its dysfunctions.