Donald Trump regularly scored points among skeptical small-government conservatives during his 2016 presidential bid by attacking then–President Barack Obama’s supposedly “lawless” executive orders defending immigrants, vigorous environmental protections, and an expansive interpretation of the Affordable Care Act. After winning the presidency, President Trump reversed course by issuing a volley of executive decrees, including his controversial “Muslim ban.” Although one might have expected opposition from House Speaker Paul Ryan (R-WI), an aficionado of Friedrich Hayek’s Road to Serfdom (1944), he and other putatively antistatist conservatives in the House and Senate have responded enthusiastically to Trump’s embrace of discretionary, top-down executive rule. So long as it serves their own policy goals, a discretionary federal bureaucracy, even when resting on flimsy legal and constitutional supports, turns out not to be as lawless as they previously declared. With the support of Ryan and most congressional Republicans, Trump also unleashed the Department of Homeland Security and police departments nationwide, freeing them from some legal checks that allegedly keep them from doing their jobs effectively.
This marvelous book helps illuminate the sources of present-day political and intellectual confusion about the modern American state, whose institutional pillars its author views as having emerged primarily during the New Deal and World War II. Born in economic crisis and total war, Anne Kornhauser argues, modern “big government” was “never in fact endowed with a principled rationale by the liberals who supported it” (p. 3). Welfare liberals, into the present, have supported the administrative and national security states chiefly on pragmatic and instrumentalist grounds, in the process downplaying how some features (e.g., far-reaching administrative discretion, rule by bureaucrats and experts) raise tough questions for democracy, the rule of law, and separation of powers. For their part, conservatives have periodically turned to the classical liberal (or libertarian) Hayek to delegitimize the administrative state when it serves the socially excluded, while aggressively outbidding their partisan rivals in support of the “nanny state” when buying into the national security apparatus. As Kornhauser claims, our confused “conversation about the American state demonstrates the continuing absence of an enduring justification for administrative governance beyond the invocation of emergency” (p. 230).
Kornhauser draws extensively on scholarly literature about American political development, the history of recent political ideas, and legal theory to recover a rich, yet unfairly neglected, discourse among postwar liberals and progressives who embraced “big government” but worried about its paltry normative foundations. Though hardly uncritical of the “new Leviathan,” these liberals refused to follow Hayek in promising a return to a nineteenth-century golden age; contemporary social conditions required a robust, activist state. Unlike many of the original New Dealers or partisan Democrats following in their footsteps, this motley group of left-leaning intellectuals and sometimes-activists tried to come up with principled, normative underpinnings for a novel institutional constellation in which traditional ideas about democracy and law no longer seemed to provide sufficient guidance.
The most impressive achievement of Debating the American State is to reconstruct this postwar discourse by ignoring standard disciplinary divides. Although Kornhauser views the familiar figure of John Rawls as this liberal group’s most impressive representative, she contextualizes Rawls in a way that will surprise philosophers and political theorists who read him as though his ideas had nothing to do with postwar politics. Unlike the figure we encounter in seminars (and scholarly journals), or pilloried by political realists (e.g., Raymond Geuss) for failing to take politics seriously, here Rawls appears as an intensely political figure, eager to support the welfare state but vexed by its potential paternalism and tendency toward discretionary rule. Correspondingly, his monumental Theory of Justice (1971) provided a systematic defense of a reconstructed welfare state more in sync with liberal ideas of the rule of law. There, Rawls targeted utilitarianism partly because of its role in undergirding what he viewed as an insufficient justification for social and economic policy. His philosophical “theory of justice,” it turns out, was always simultaneously a principled defense of a more just, socially egalitarian, and fully law-based American state, though “unfortunately for liberalism he has not yet succeeded politically” (p. 220).
Kornhauser’s reconstruction extends beyond the usual intellectual superstars. An early chapter, devoted to proposals to open the emerging administrative state to novel possibilities for individual and group participation, examines the forgotten figures of Louis Jaffe, a Buffalo law professor, and Pendleton Herring, a onetime president of the American Political Science Association now familiar only to those steeped in disciplinary history. Though ultimately critical of their proposals, she treats their prescient ideas about the nexus between democracy and the administrative state respectfully. Here as elsewhere, her rich, wide-ranging analysis represents anything but “antiquarian” history.
In two succeeding chapters, Kornhauser makes a strong case for the central role of German and German-Jewish emigres and refugees in postwar discourse about the American state. Unlike many “native-born” thinkers, they quickly grasped the need to make the burgeoning apparatus of modern government consonant with the rule of law, an ideal they viewed pace Hayek as consistent with far-reaching, potentially equalizing state action. Because they worried that Nazi Germany had successfully masked its crimes in a misleadingly legalistic veneer, Kornhauser suggests, they thought it imperative that the postwar American state, both domestically and internationally, demonstrate proper fidelity to fundamental notions of law-based rule. According to this provocative interpretation, it was “foreign-born” intellectuals (e.g., Carl Friedrich, Franz L. Neumann, Karl Loewenstein) versed in the horrors of Nazi tyranny who played a key role in forcing more pragmatic-minded American liberals to take core legal ideals seriously. Their efforts, Kornhauser believes, helped paved the way for a younger generation of liberals like Rawls.
As the author demonstrates, a great deal can still be learned from this mid-century liberal discourse, despite its limitations and flaws. If the American state is someday to prove more fully democratic, legally impeccable, and socially egalitarian, there are worse places to turn for inspiration than the postwar debate she resuscitates with such care.
I conclude by simply mentioning how Kornhauser’s analysis might be augmented. Her story abruptly ends in the 1960s and early 1970s, when she mentions Theodore Lowi’s influential End of Liberalism (1969) and briefly discusses the left-wing backlash against both the warfare and welfare states. (She sidelines the right-wing backlash only because it has been discussed extensively by others.) Still, more remains to be said. The welfare state’s subsequent political vulnerability had as much to do with economic transformations (i.e., post-Fordism, globalization) as with liberalism’s failure to provide a principled ideological rationale. The modern American state not only was born amid capitalist crisis and total war but has also been regularly sustained and remade by subsequent crises, including the recent 9/11 terrorist attacks and 2008 global economic collapse. More-or-less permanent emergency interventions, one product of our crisis-ridden global political economy, do not lend themselves to constructing the reformed polity that Kornhauser’s legalistic, left-wing liberals and progressives desired. Their ideas, she vividly highlights, were theoretically impressive and politically appealing, and their failures may have had more to do with the harsh realities of political economy and global violence than anything internal to them. Tragically, perhaps, the more radical voices among those examined by Kornhauser would not have been altogether surprised.
