Susan Sterett's book is a useful, although flawed, history of litigation in the states over municipal and state pensions for civil service employees. In particular, Sterett examines the nineteenth- and early-twentieth-century history of state-level efforts to expand the scope of permissible state and local pensions, from firefighters and police officers to other civil service employees and finally to such groups as mothers and the elderly. Generally, state courts interpreted their constitutions to permit pensions for employees but not for the broader public, despite scattered efforts to argue that all labor should count as “service” to the public, meriting reward by state governments.

Sterett shows that before the Civil War, states and municipalities began to provide pensions to firefighters and police officers. These payments were challenged by taxpayers and others on the grounds that they violated the public purpose doctrine, which held that the states could only expend public funds in the interest of the public as a whole, as opposed to a class or private interest. In response, state courts generally found that because such workers labored in the service of the whole community, payments to them on injury, death, or retirement furthered the public interest. By the 1920s, this rationale was extended to civil service workers more generally, though advocates of this extension had to overcome a broad sentiment that other employees, such as clerks and teachers, were not entitled to public pensions because their work lacked the element of danger inherent in fighting fires or crime.

In addition to pension payments, states and localities provided relief to the indigent poor; however, state courts held that programs without a means test lacked a valid public purpose. So, for example, Sterett writes (p. 117) of the Arizona Supreme Court's 1916 decision striking down that state's mother's pension law because taxpayers “ought not to be made or required to help pay pensions to those who have enough and to spare of the world's goods.” State court opinions like this one applying the public purpose doctrine effectively barred states and municipalities from providing universal old-age or mother's pensions, since no state court was willing to see lifetime laboring or mothering as a service to the community as a whole. Sterett does a particularly good job of uncovering the gender dimensions of these judgments about service and dependency.

In sum, the author shows how the efforts of reformers to launch a more thoroughgoing welfare state by utilizing state legislatures as Justice Brandeis's “laboratories of experimentation” were a total failure. If her story ended there, this book would make a significant contribution to the history of U.S. social provision and to our understanding of the reasons that the New Dealers decided to pursue federal, rather than state, old-age pensions during the 1930s. However, she has a more ambitious, and ultimately unsuccessful, agenda.

Sterett argues that the failed state-level efforts to extend the “service” argument to provide pensions to such groups as the elderly and mothers prefigured the successful adoption of this very argument at the federal level during the New Deal. For example, she states that “once Roosevelt signed the Social Security Act in 1935, and corporate lawyers challenged the programs toward which employers were required to pay taxes—unemployment insurance and old age social security—it was state constitutional debates concerning public payments that provided the groundwork for explaining why the programs were indeed constitutional” (p. 4). Similarly, Sterett claims that “[t]he elderly also never won a claim to service constitutionally before the New Deal. That awaited the determined work of political executives who believed that by explaining to Americans that the elderly were receiving payment for work they had done, they would be able to eliminate the stigma of that form of public assistance” (p. 180).

It is worth pausing to think about the kind of evidence that might support this argument. At minimum, we would expect to see the lawyers who defended the Social Security Act against court challenges follow the earlier lead of the lawyers who had defended state-level universal old-age pensions in the three states where they were enacted. The New Dealers would have marshaled the precedents provided by state cases expanding the definition of “service” to include civil service workers and argued that just as civil servants provided a service to the state, so did all workers. They would have argued in their briefs or in their oral argument to the Court that if the state had a valid public purpose in providing pensions for teachers and clerks, then the federal government had a public purpose in making such payments to all waged workers. And we might well expect to see some trace of this argument in the Supreme Court opinions approving the act. But this “service” argument was absent from the legal fight over the Roosevelt administration's programs, despite Sterett's repeated allusions to its presence.

The most likely reason for this absence is the fact that the public purpose doctrine never applied against the national government, which instead was governed by the more lenient standard that legislation be in the general welfare, a determination that the courts had always left to Congress. The greater latitude enjoyed by Congress, as opposed to the states, in questions of spending was well known to judges, commentators, and lawyers at the time, including Columbia law professor Frank Goodnow, on whose Social Reform and the Constitution Sterett relies. Goodnow wrote extensively in that volume (1911, pp. 310–17) about the lack of any public purpose limitation on congressional spending, noting that there were numerous precedents for charitable spending by the federal government that could be marshaled in support of old-age, sickness, and accident pensions. He concluded his discussion of pensions by saying that “there is much ground for the belief that such pensions, particularly if confined to indigent persons, might constitutionally be provided by the federal government” under the auspices of the more expansive General Welfare Clause, rather than by the states.

Thus, it is unsurprising that the New Deal lawyers charged with defending the Social Security Act ignored the argument that universal old-age pensions served a public purpose because all work was service to the state: The public purpose doctrine restricting state and municipal spending was entirely irrelevant to acts of Congress. Instead, the New Dealers exhaustively sought out relevant precedents for federal spending under the General Welfare Clause, which they found in such efforts as disaster relief, the Children's Bureau, and the Morrill Act. For New Dealers looking to expand the redistributive capacity of the federal government, arguments attempting to analogize the powers of the states and the federal government must have been a particularly unappealing option. Indeed, such arguments were frequently mobilized by those opposing the Social Security Act, who hoped that the Court would shrink the general welfare power down to the size of the public purpose doctrine.

Regrettably, Sterett is unaware of this crucial distinction between the national and state governments where the law of public spending was concerned, as when she asserts (p. 180) that in upholding the old-age benefit provisions of the Social Security Act in the 1937 case of Helvering v. Davis, the Court had held that Congress “could determine that insurance programs divorced from public service and indigence could serve a public purpose.” But this is a misreading of Helvering, which mentions neither the notion of “service” nor the public purpose doctrine. Justice Cardozo's majority opinion concluded that the old-age benefit scheme was valid because Congress was entitled to great deference in its determination of the general welfare, and it had determined the relief of unemployment was such an object. Moreover, the Court offered its agreement with Congress, if any was needed, that “unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation” (p. 641).

In the end, Sterett's argument that disputes over state pensions were somehow a precursor to the New Deal is an example of what the humorist Steve Martin has called “semantic causality”—that is, the imputation of causal connection based purely on a similarity of words, rather than on the identification of any actual casual mechanism. It is certainly true that the legal basis for old-age pensions was discussed and disputed in the states and at the federal level, and that the state discussions preceded those at the federal level. This does not mean, despite Sterett's efforts to suggest the contrary, that there was any relation between the two. It is unfortunate that Public Pensions is marred by this overreaching, as its historical contribution to our understanding of the legal and political dimensions of state-level public pensions is a valuable one.