*This is the fifth post in a symposium on William Novak’s New Democracy: The Creation of the Modern American State. For other posts in the series, click here.

Novak’s New Democracy is a profoundly important new book about the rise of the modern American state written by a leader in the field. The book focuses our attention on the decades after the Civil War, inclusive of both the Gilded Age and the progressive reform era of the early 19^th century. Out of this period emerged a “new democracy,” a new course of self-governance to meet the challenges of modernity.

As the book argues, this new self-governance involved rearrangements to a wide range of areas, including citizenship, public utility, anti-trust, regulatory setups, and social policy. Reforms to these areas and others responded to, if they did not quite redress, new or amplified problems of corporate power, industrial-scale corruption, and inequality that arose after the Civil War. The book is remarkable not only for the number of dimensions it maps out in this new self-governance, but also in its careful excavation of the intellectual foundations of the movement. One finishes the book with a vivid sense of the thinking of those contemporary to the period. A significant virtue of the book in my eyes is that it artfully weds attention to the thoughts of these contemporaries with an account of the structural concerns of the period.

My sympathies with the book’s core thesis run deep. I agree with the book’s move to focus on the period between the Civil War and the New Deal—rather than the New Deal itself—as a critical period of re-settlement in American democracy. I would also identify many of the same structural features of the period as key to understanding the forces at play. My new book on the architecture of the modern state, The Reasoning State, includes a chapter on the progressive reform era, and I likewise focus on the structural features of novel scale economies and corporate power, inequality, and subversion of democratic institutions, though I might center changes to the information environment more than the New Democracy does, and my account is focused more narrowly on the proliferation of regulatory bodies (it is also written from a perspective of law and social science).

One point I want to dwell on for a moment in this review is on the meaning and value of “democracy” to the argument and to current debates. Democracy is, of course, a loaded term that affirms the reader and calls to the mind specific conceptions of what is meant by it. Following progressive reformers, Novak’s main notion is one of “substantive” democracy, that is, one that fulfills not or not only the lean institutional requirements of voting, but also for example a measure of equality in citizens, and one that implies the ability of the public to shape markets and counter a domineering private sector. This is a defensible understanding, and one I sympathize with, but it is also contestable and important not to lose sight of in these pages, particularly if one reads toward an eye on current debates.

Democracy as a concept in current debates often equates more squarely to the lean notion of voting and mechanical supports. Recent experience and the independent legislature theory, indeed, challenge even this denominator on the concept. But let us continue with it. Under this narrower concept, the modern reader is likely to be perplexed by parts of the book. The chapter on public utility, for instance, regards it as critical to the project of “extend[ing] democratic control” over the private sector (145), and a passage on Charles F. Adams’, recognized as a prophet of the regulatory state, summarizes his view as “[t]he solution to the crisis of modern democracy … was ever more democracy” (239). How could regulatory commissions represent extensions of democratic control? How could a father of the regulatory state, of swampy unelected bureaucrats, be said to be arguing for ever more democracy?

An answer is that they do, but within a fuller notion of substantive democracy: they serve democracy both by facilitating responsiveness to public demands, and by helping to establish the preconditions for the lean democratic institutions to function meaningfully. Thus, what the reader may initially find jarring sharpens the stakes and clarifies what is missing from so many of our debates of bureaucracy and democracy.

These institutions should not (necessarily) be viewed as antithetical, and indeed democracy often requires policymaking by non-electoral institutions. A core insight of the progressive era reforms was of the inadequacy of representative electoral bodies, in part due to their subversion by private interests. As our justices muse about “democratic accountability” as a motivating engine for the major questions doctrine and the non-delegation doctrine, Novak’s is a timely reminder of what that concept should require. There is democracy and then there is democracy.

Jed Stiglitz is a Professor of Law at Cornell Law School.