For some reason, the vast literatures on liberal republicanism and on American policymaking institutions have never quite had their expected courtship, much less received a proper introduction. This is odd, not least because each literature has always (consciously or less so) borne the problems of the other literature in mind. Much of the literature on republicanism has been undertaken with the idea of explaining the ideational roots of modern Anglo-American institutions (Eric Nelson on republicanism more generally, Karen Orren on contracts and labor arrangements, Jeremy Waldron on legislatures), or with eliciting the programmatic and ethical conclusions to which the philosophy underlying our institutions should lead us (Philip Pettit, Michael Sandel, Waldron again). And as scholars of American legislatures, agencies, and courts continue to document exhaustively the factual behavior of those institutions, many have begun to turn to the matches and mismatches between theoretical promise and institutional realities (Lawrence Jacobs and Robert Shapiro, Richard Hall, Diana Mutz, and most recently Lawrence Lessig). Yet with some very recent exceptions—among them John McCormick's Machiavellian Democracy (2011) and Ira Katznelson's forthcoming volume, Fear Itself, on Congress and American liberalism—the conversation lacks synthetic treatments that take up the themes of both literatures in the same volume. Until now.

William Eskridge and John Ferejohn, two of the leading voices in the fields of law and political science, have joined forces to write a major volume that unites a searching treatment of republican theory and constitutional law with an expansive reading of American statutory history. Their central claim is that developments in America's fundamental institutions have taken place more through small-“c” constitutionalism (incremental development of statutes, administrative interpretation, and political embedment) than through Big-“C” constitutionalism of amendment through Article V and thunderbolt Supreme Court decisions. The modern right to be free from discrimination in the workplace (Introduction and Chapter 1); freedom from racial discrimination in the use of public facilities and dispensation of public services, the collection of institutions undergirding modern finance and retirement (Chapters 7 and 4, respectively); the arrangements creating our national security state (Chapter 9); the emergence of women's property and reproductive rights in family law (Chapter 5)—all of these and others are the result not of changes in our Big-C constitution but of the aggregation of “superstatutes.”

Superstatutes are collections of individual statutes, administrative rules and implementation patterns, and popular deliberations that have become entrenched in a way that invites deference: Examples include the Federal Reserve Act of 1913, the Civil Rights Act of 1964 and Voting Rights Act of 1965, the Environmental Protection Agency, and the National Security Act of 1946. We should give up on the task of justifying these institutions directly from some plank of the Constitution of 1787, the authors argue; the original Constitution instead creates a deliberative and policymaking framework whereby We The People can create institutions to adapt to our times. This arrangement is far better than the alternatives, the authors argue. The aggregation of laws, administrative decisions, and popular deliberation and entrenchment serves an adaptive society much better than constitutional amendments and Supreme Court decisions.

The book represents a synthesis of previous work more than a new empirical statement, and yet it is a powerful synthesis. If one teaches courses on American political development or republicanism (as I have), if one is always in search of interesting material for one's undergraduate and graduate students to read on these themes (as I am), then Eskridge and Ferejohn have provided a volume worth assigning (as I will). This is a major work, and despite my reservations about the way it treats issues of time and deliberation, it will enjoy both a long life and extensive discussion.

Still, I experience something of a quandary when reading this book. I find myself in frequent agreement with Eskridge and Ferejohn's conclusions, but I typically arrive there via reasons different from those laid out by the authors. The republic of statutes is something we should celebrate and continue to construct. Yet the continued operation of that republic will depend upon two features that remain insufficiently developed in the volume—the aggregation of the people's will over time and the deliberation that constitutes that will and that forms the basis for small-c constitutionalism.

I write this from France, where citizens never tire of calling their regime La République, but where questions of time and institutional durability rest always at the forefront of discourse and in the deep recesses of anxiety. (Radicals are now calling for a new, sixième république to follow the near-dozen institutional constellations that have followed the Revolution.) It is perhaps for this reason that I have found questions of time and talk—of temporal aggregation and deliberation—at the center of my concerns as I read this book.

The architects and audiences of modern republics were worried above all else about the durability of arrangements and about the problem of representing the long-term interests and wishes of the people. Stability of arrangements marks one of the central themes of writing in the republican political tradition—Machiavelli, James Harrington, Montesquieu, Alexander Hamilton, and James Madison. In Federalist #10, Madison defined faction in opposition to the “permanent and aggregate interests of the people.” A nefarious concept if ever there was one, yet implemented in ways that are tangible in our Large-“C” constitutional framework. One function served by our Constitution's institutional arrangements, which require the passage of legislation to get the assent of different actors with different time horizons, is not simply to make laws harder to pass but to ensure that only durable majorities are able to pass them.

This is where Eskridge and Ferejohn's argument becomes, for me, so intriguing. They contend that what distinguishes a superstatute such as the Civil Rights Act from a mere statute like the Family Medical Leave Act (or, for the time being, The Affordable Care and Patient Protection Act of 2010) is that the former carries with it the weight of accumulated lawmaking, administrative implementation and rulemaking, and popular deliberation and large-scale assent. The republic of accumulated statutes embodies and expresses a deeper republic of time, a republic in which long-term deliberation and representation reflecting that deliberation has taken place (pp. 12, 99, 103, 114–7, 190–3, 272). In this republic, judicial review is limited and justifiable as much as for any other reason if it protects and advances deliberation (pp. 455–68).

This same promise points to a set of critical questions and limitations. Deliberation is the sine qua non of what makes a regime of superstatutes small-r republican; superstatutes can exude Pareto optimality and reflect deep rationality, but what makes them superstatutes is that they embody the aggregation of time and talk. Yet here questions arise. What kind of talk (and how much) qualifies as deliberation? Does any form of policy experimentation qualify? Does the debate of a nonrepresentative or captured legislature qualify? Does electoral competition using implicit bribes made to voters and party officials—distributive politics of the sort that Ferejohn has written about so intelligently for a generation—qualify? Judging from the authors' first historical chapter on the “safety net constitution,” the answer to all these questions would seem to be: yes. The authors neglect some critical deliberative and representative weaknesses in early Social Security policy, and they allow some rather odd policies to stand in for deliberation as they describe its “entrenchment.”

Chapter 4 takes a much older history of the Social Security law that, while helpful, seriously occludes the restricted character of representation in the deliberations as well as in the benefits of the program. As Robert Lieberman and Suzanne Mettler (whose work is unfortunately not cited) have shown, the exclusion of African Americans and women from the program was intentional and reflected the deeply restricted character of New Deal deliberations (Jim Crow laws, for instance). Lacking this superior evidence base, Eskridge and Ferejohn end up issuing a few clumsy summaries like the idea that the 1930s Democratic Party was divided between northern progressives and “southerners, devoted to the traditional small-government orientation of nineteenth-century Democrats,” neglecting entirely southerners' deeper devotion at the time to a carefully constructed racial caste system (p. 173). (It is somewhat unfortunate that the social policy chapter cites very little of a broad literature that includes these authors as well as influential monographs by Andrea Campbell, Jacob Hacker, Jonathan Oberlander, Theodore Marmor, Paul Pierson, and Theda Skocpol.) As they develop their account of the Social Security regime in the book, the authors all too often lay bare a different kind of politics, one that at best needs defense if it is to qualify as deliberation—this defense does not appear—and one that at worse amounts to raw forms of power and demagoguery. The authors rely upon a form of “aggressive administrative elaboration and politicking” (p. 187) to count as the aggregation of discourse and preferences. Eisenhower's skepticism of Social Security actually “strengthened it by co-opting Republic leaders in HEW and thereby broadening its political base” (p. 190), while the 1950s amendments “taught members of Congress that they could earn easy bonus points with voters by periodic increases in social security benefits” (p. 190). In Reagan-era and Clinton-era changes (p. 201), it is dependent children (who cannot vote, and whose single mothers are some of the weakest actors in our political system) who lose their entitlements, while older actors who vote and participate more commonly (as Campbell has demonstrated), retained theirs. This stuff is deliberation?

In the following chapter on the constitution of family law, the authors frequently conflate rational policy development (experimentation) with deliberation (pp. 212–3). States may try new policies and abandon failed ones and thereby improve the course and content of policymaking. Yet it is well known in the literature on state policy experimentation that this can be done without any deliberation at all (for a model in which abundant experimentation takes place in an interstate equilibrium without any deliberation at all, see Craig Volden, Michael M. Ting, and Daniel P. Carpenter, “A Formal Model of Learning and Policy Diffusion,” American Political Science Review 102 [August 2008]: 319–32).

Finally, the one institution that has done as much as anything else to render the modern administrative state more formally deliberative—the Administrative Procedures Act (APA)—is almost entirely ignored in the book (there is one direct citation to it, on p. 463). I find this lacuna both odd and disappointing. Odd: the APA comprises the empirical problematic that led Ferejohn's Stanford colleague Barry Weingast to write some very famous articles on administrative procedures. Disappointing: the APA provides actual deliberative institutions, not just notice-and-comment but also administrative hearings, that would seem to rest at the center of any attempt to render administrative procedures more reflective and republican. Indeed, by Eskridge and Ferejohn's definitions, the APA probably qualifies as a superstatute in its own right.

My concerns about time are related to this absence of a guideline for differentiation. What makes a set of statutes, rules, and deliberations last “long enough” to qualify as a superstatute? Take one of the central examples of the volume: Civil Rights for racial minorities. In the nineteenth and early-twentieth centuries, there was state statutory convergence toward the restriction of various liberties of African Americans and other minorities, not just in the Jim Crow South, but as Eileen McDonagh has demonstrated in her essay on “the Progressive policy paradox” (“The ‘Welfare Rights State’ and the ‘Civil Rights State’: Policy Paradox and State Building in the Progressive Era,” Studies in American Political Development 7 [no. 2, 1993]: 225–74) also in the North. And federal-level law entrenched these norms, including again some of those nefarious provisions of federal social policy lasting well through the New Deal. These institutions lasted longer in nominal terms than have many of the small-c constitutions that the authors review (the “green constitution” of modern environmental law, for instance). Just because they are with us no longer, can we refrain from qualifying them as a superstatute for their time? The question presents genuine normative challenges for Eskridge and Ferejohn's argument.

Or more recently, in the 1990s and early twenty-first century, there was, if anything, massive state statutory convergence—indeed, massive convergence of state constitutions driven by supermajority votes in state-level referenda—toward restricting the definition of marriage so as to exclude homosexual couples. These state-level institutions were given moral and legal support in the Defense of Marriage Act of 1996, and federal courts have not jolted the system with any significant amount of deliberation-inducing judicial review. To be sure, a handful of states like Maryland, Massachusetts, New York, Vermont, and Washington stand out as exceptions but, at the moment, they merely prove the rule. I strongly disagree with the specifics and the generalities of these institutions and I consider them unjust, as I suspect Eskridge and Ferejohn do. But is there any denying, given the authors' definition of superstatutes, that marriage apartheid presently qualifies as a part of our small-c constitutional framework? Again, fundamental normative problems arise and mix with hardened empirical realities.

This concern about temporal aggregation of administrative constitutionalism gives rise to a final concern about the historicity of this account. Are Eskridge and Ferejohn simply reading a more convenient and likable history out of the twentieth century? Let us be clear that the project here is not only to describe a more realistic version of foundational change but also to embrace its more general forms and elicit conclusions from its principles for judicial and administrative behavior. Will the small-c statutes described in A Republic of Statutes last for another half-century? Should they? What about the potential for Social Security and Medicare—whose expansions comprising the “safety net constitution” were empowered by what now seems like a uniquely explosive generation of economic expansion—to bankrupt our republic? Or more broadly, is a sanguine perspective on the possibilities of administrative constitutionalism easier to publish in 2010 than at other times in our republic's history? Could this book have been written with such a positive appraisal of the administrative constitutionalism in 1820? In 1870? In 1920? On November 3, 2004? A selective reading of these histories—especially of Social Security but also, one worries, of recent developments in gay marriage equality—risks converting a study of an alternative, more realistic constitutionalism to a Whig history of American institutional accomplishment.

I am honored to have been invited by Jeff Isaac to contribute to this dialogue, and I should say that I do see some potential complementarities between A Republic of Statutes and Reputation and Power. Let me start with an obvious question: Does the Federal Food, Drug and Cosmetic Act of 1938, as amended and implemented, constitute a superstatute? Yes, in all likelihood, it does, and were my purposes in writing Reputation and Power more normative I would have stated so. What my book adds to the Eskridge and Ferejohn idea of administrative constitutionalism, I should think, is that the aggregation of popular support for an institutional regime, and the resulting popular and institutional stickiness of a superstatute, can flow not just from formal deliberation but also from symbolism and memory, from myth. My narrative in Chapter 3 of how efficacy regulation came to the superstatute of food and drug regulation—administrative problem solving and deliberation, followed by rulemaking, followed by statutory codification and lock-in (including through critical Supreme Court decisions)—fits very well with Eskridge and Ferejohn's broad perspective. And, of course, the role of deliberative institutions like drug review teams and advisory committees is critical in legitimating the specific decisions as well as broad parameters of these regimes.

Here is where I detect a research agenda at the intersection of the two volumes. Any normative or jurisprudential account that makes the case for the legitimacy of American food and drug regulation—and I might yet be inclined to write one—will need to take account of Eskridge and Ferejohn's framework. If it can be applied to food and drug regulation, it can and should be applied to a range of superstatutes. What is needed in coming years is for scholars in law and political science to provide a normative ordering and taxonomy of regulatory institutions in the United States—to figure out what in our collection of institutions aggregates well, through time and deliberation, in our republic's administrative constitutionalism, and what in that collection does not. By doing so, scholars would render vital contributions, not only to the theoretical analysis of the American regulatory state but also to the legal and normative self-understandings that undergird that state.