William J. Novak’s The People’s Welfare (1996) is a landmark in the historiography of the American state in the nineteenth century. Now, approximately twenty-five years later, Novak continues his earlier work. In New Democracy he moves the analysis to the Gilded Age and Progressive Era. The book proposes three main arguments. First, extending the ideas in The People’s Welfare, Novak once again effectively demolishes ideas of “a weak state, laissez-faire, and Lochnerism” in the period from 1870 to 1930 (260). Second, in revealing a creative, capacious, and relentlessly expanding state in this era, Novak aims to challenge “the overweening centrality of the New Deal in the creation of modern America” (264). The third argument aims to restore the democratic and pragmatic credentials of this period of state expansion, rescuing it from those who have seen the Progressive Era regulatory state as the handmaiden of ascendant business interests. Rather, Novak centers the contributions of pragmatist intellectuals who created a “new democracy” that “aimed to rejuvenate the revolutionary, anti-aristocratic, anti-oligarchic, and equalitarian impulse embracing every human personality” (19). This optimistic, even celebratory account of the “radical potentialities of progressive social democracy during a historical era when so much was working against it” is suggestive but far from fully realized (24). The writing is forceful, lively, and accessible, and the book will be appealing for classroom use. This will be a crucial book with which all scholars and students thinking about the U.S. state in the Gilded Age and Progressive Era will need to reckon. Even more so, Novak’s arguments should be carefully considered by historians of the twentieth century for whom the New Deal remains a singularly central interpretive pivot.

This book’s argument develops through a series of clearly structured thematic chapters that also move forward chronologically. The first chapter traces the revolution in citizenship marked by the Civil War and Reconstruction, resulting in “nothing less than a new kind of state and the invention of a new judicial subject—a modern rights-bearing citizen” (66). In the antebellum era, citizenship was still “a concept under construction,” and it was free African Americans who fought for a baseline right of residency against threats of expulsion (45). Prior to the Civil War, states routinely passed “discriminatory laws differentiating their populations along nearly every conceivable status: religion, ethnicity, race, gender, age, disability, domicile, and poverty,” but the destruction of slavery and the constitutional transformation wrought by Reconstruction created the possibility for a new kind of egalitarian, democratic, national citizenship (37).

Chapter two explores the expansion of a robust regulatory police power during the Lochner era, a time when courts supposedly sharply curtailed democratic control of the economy. Novak convincingly argues that “the mythology surrounding Lochner has so skewed historical attention as to create the legal fiction known as ‘laissez-faire constitutionalism’” (103). A review of 302 police power decisions by the Supreme Court between 1887 and 1911 shows that only thirty-six of these laws were found unconstitutional. Thus, Novak contends that “this was an era of unprecedented expansion rather than limitation of legislative police power” (105). The cases in the laissez-faire canon (Wynehamer, In Re Jacobs, Godcharles v. Wigeman, Ritchie v. People, and Lochner) were minor and exceptional, leaving a robust police power intact for “the dominant sectors of the late nineteenth- and early twentieth-century economy” (107).

Chapter three on public utilities elaborates on the use of this power, tracing the rise of state railroad commissions in Massachusetts (1869) and Illinois (1871) and then eight other states, before the arrival of the federal Interstate Commerce Commission in 1887. Novak then turns to revise the “common myopic reading” of Munn v. Illinois as a major “constraint on the power of the state” (141). Munn established that regulatory police power was legitimate for businesses “affected with a public interest” (140–141). Rather than setting limits, Novak argues that the decision “created a new legal field of important economic activity that could be subjected to unprecedented state control from direct price regulation to outright public ownership” (143). This fundamental reframing of Lochner and Munn is the heart of the book.

Chapter four then extends these themes into the area of social legislation and the intertwined development of social provisioning and social police. Particular attention is given to sexuality and the closure of red-light districts. Injunctions were the key innovation since they “took aim at property as well as person and restricted the uses of property well into the future” (176). Chapter five shows the creation of “a modern law of regulated industries” in the early twentieth century (181). Rather than foregrounding the shift from special to general incorporation, Novak shows the vast array of commissions, laws, rules, and regulations “aimed precisely at those industries, monopolies, and corporate practices that posed the greatest threats for American democracy” (196). Lastly, chapter six aims to rehabilitate bureaucracy. Rather than “an antidemocratic threat,” bureaucracy is cast as a crucial bulwark of democracy: “administrative power as the … actual distribution, redistribution, and regulation of public goods and services” (220). This development is illustrated by the example of the investigation and reform of old poor law systems.

This is an impressively broad and sweeping account. There are, however, some limits in terms of the supporting evidence, the causal drivers of this transformation, and the conception of democracy. Evidence for the breadth of the state’s activities often appears in lists. This presentation fits Novak’s “pragmatic attempt to describe how the state actually works,” but it often provides a very thin account of these operations (4). For example, to document the extent of corporate regulations, a long paragraph shows that “ferries, bridges, bonded warehouses, log driving, tramways, railways, pipelines, transmission lines, elevated conveyors, lumber flumes” and sixty-seven more enumerated industries were regulated (111). To show the activities of the Illinois Railroad Commission, Novak gives a list of “classified freight beginning with the letters Ca” extending to forty-five items (132). Novak shows breadth through fourteen major sectors identified as “businesses with a public interest” (143–144), over four hundred “monopolies and restraints on trade” (182–183), and more than forty specific occupations and businesses regulated by licensing, but these catalogs provide little sense of the underlying social and political content of these activities (211). Perhaps most strikingly, five full pages are devoted to lists of government agencies for the city of Detroit, New York State, and the federal government (228–232). These are all suggestive of the scope and scale of an expanding state, but offer little clarity on the contending interests, political compromises, or resulting impact of these activities.

Although Novak acknowledges that “the more general causes of this legal-political transformation” involved a complex interaction of “a reorganized industrial and corporate economy; an ascendant American labor movement … rapid advances in science and technology; a growing, diversified, and increasingly mobile … population” and other factors, the structure of the book suggests an almost idealist causal account in which the scholarly innovations of pragmatist philosophers and legal scholars drive the reconstruction of the political economy (70). Ernst Freund was “one of the chief architects of the transformation in modern police power” (95), and he was just one of “jurists and law writers” who “paved the way for the explosive growth of police power regulation” (98). Citing the scholarship of William James, John Dewey, and George Herbert Mead, Novak suggests that the “starting point for this social revolution in governance was an increased recognition of the sociality of reason itself” (150). Indeed, Novak appears to give unbounded power to ideas when he writes that “such new and positive ideas of statecraft, law, and administration quickly moved the American polity beyond traditional concerns” (225).

This seemingly top-down approach sits at odds with the book’s argument for the essentially democratic foundations of this transformation. Indeed, the demos—the rough and tumble populace, social movements, and partisan politics—does not really appear at all, occasionally acknowledged as “a mood and language of profound social conflict and economic disorder,” but left almost entirely offstage (146). Labor organizers, suffragists, grangers, populists, feminists, socialists, and Black civil rights activists only appear as distant echoes, collapsed into the broad categories of reform and reformers.

This book should put to rest some common, durable misconceptions about the state in the Gilded Age and Progressive Era. The old myths are torn down, but only a very partial picture appears in their place. Novak shows us the legal outlines of a state that was large, powerful, and rapidly growing. Other works will be needed to fill in the causal drivers, the substantive content, and crucially the impact and consequences of this clearly powerful state.