The Long Life of Liberal America: Law and State-Building in the U.S. and England

Abstract

Reports of the Strange Death of Liberal America are greatly exaggerated. James Henretta's essay of that title offers a shrewd and insightful portrait of Charles Evans Hughes. But the liberalism whose death Henretta reports did not die. And the “statist,” “centralization,” “economic planning,” and broad “social insurance” minded liberalism he reports as prevailing did not prevail. From a certain lofty altitude (and rueful attitude), all “big,” “modern” “welfare states” look the same. That is Henretta's viewpoint. His wonderfully suggestive comparative framework has as one of its premises that America and England proceeded along the administrative-and-welfare-state-building path at different paces but arrived at the same destination. For me, a comparison of the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England prompts different conclusions. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by that ambivalent (and lawyerly) brand of American liberalism Henretta rightly attributes to figures such as Hughes and Roscoe Pound—poised between “progressive” commitments to social reform, social provision, and administrative-state-building, on the one hand, and older, “classical” liberal commitments to limited (and decentralized, dual federalist) government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. My notion is that this “transitional” and “forgotten” liberalism and its champions won more important battles than they lost against their “statist” rivals. A “strange death,” indeed!