Liberty and Coercion: The Paradox of American Government from the Founding to the Present

Transcript

Trevor Burrus: Welcome to Free Thoughts from Lib​er​tar​i​an​ism​.org and the Cato Institute. I’m Trevor Burrus. Joining me today is Gary Gerstle, the Paul Mellon Professor of American History at the University of Cambridge and the author of the new book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present. Welcome to Free Thoughts, Gary.

Gary Gerstle: Thank you very much.

Trevor Burrus: So, I would start with the interesting and provocative title of your book, Liberty and Coercion. Why did you choose those two concepts, which I guess are somewhat antithetical concepts, as your—for your overview of American history?

Gary Gerstle: Well, for me, those two words, concepts illustrate the paradox of government and America. Americans love to define their freedom as freedom from government. Government must be gotten off our backs so that we can experience our liberty. Patrick Henry “Give me liberty or give me death” is about liberty from government, when New Hampshire license plate “Live Free or Die” is about freedom from government.

Trevor Burrus: I’m particularly fond of that one.

Gary Gerstle: Yes. This is clearly a very important part both of myth and fact in America. It’s a very important way in which Americans define their attitudes toward government. On the other hand, Americans and a whole series of realms haven’t hesitated to legislate heavily in ways that interfere with the most intimate and personal aspects of people’s lives—sexuality, race, drink, commerce, when people can buy and when they can’t buy; in some cases, which ethnic groups would be allowed to own land. All kinds of interferences with the way in which Americans live and in an order consecrated to liberty and freedom from government, one would assume that there would be a greater respect for what one does in the private realm. And I found that in America, this private realm is heavily legislated in what have been historically coercive ways. And the ambition of the book is to understand how two such contradictory attitudes toward government could cohabit not just in the same society, but in the minds of frequently the same individuals. And thus, liberty and coercion is the way to understand government in America, not one or the other but both. And the purpose of the book, the ambition of the book is to understand how those two very different approaches to government cohabit in a paradoxical way.

Trevor Burrus: And you look at both federal and the state governments in a way that I find very interesting because as a libertarian here at Cato, of course, we talk about the constitution and that’s actually my specialty when I’m not doing the podcast. And a lot of times we talk about the constitution as this liberty-​enhancing document which to some extent it is but, of course, the constitution was also ratified and created in order to enhance the power of the federal government and then, of course, the relationship between those powers and then the powers that were left to the states is something you really get into. So what kind of powers—we’re talking about in the original first decade after the constitution—did the federal government have? And then what kind of powers did the states have?

Gary Gerstle: Well, the biggest contribution of the book, I think, is to insist that the federal government and the states subscribe to different areas of power, both of which emanate from the constitution. The Cato Institute version of the constitution is correct as far as the federal government is concerned. Even though it was a strengthened document in a frame of government over what had prevailed in the articles of confederation, the constitution that was ratified in 1789 was clearly a document meant to ratify limited government. The government had to be able to do certain things but it also had to be—its power had to be fragmented, divided in three branches. It was also divided between the federal government and the states and with the Bill of Rights taking shape in the early 1790s and being ratified in 1792. The Bill of Rights created a sphere of individual rights and autonomy that was off-​limits to the federal government. And the Bill of Rights is what it was meant to be a historic event in terms of protecting personal liberty.

So, the federal government had strengths that the confederation—the articles of confederation did not allow but still had—operate under a charter of limited powers. It is a liberal document in the 18th century sense of the word, meaning that the greatest threat to liberty emanates from big powerful monarchical-​centric governments and the United States had had a central government that would evade those threats.

The states, however, operated under a very different charter of powers. It does not have a proper name, which is one reason why we’ve had trouble grasping its nature and a 19th century jurist would give it the name police power and police power does not help very much because it was a broader conception of power than what we usually associate with policing today. Law and order to be sure, but the police power emerged from an 18th century British doctrine known as the public police and that was really about the duty and right of the sovereign to look after the good and welfare of his subjects. And this concept of the public police which you think might have died during the revolution or been tossed out actually survives the revolution and gets encoded into the constitution. It’s the 10th amendment to the constitution. All powers not expressly given to the federal government are reserved to the states. And as the courts begin to interpret those powers in the early 19th century, those powers are deemed to be broad, encompassing, giving state legislatures the authority to act for the good and welfare of the commonwealth. The states, therefore, have a charter of powers that is not liberal. It’s comprehensive. It’s illiberal. It gives states an enormous authority to act, and so it rights in or allows the states to act in ways specifically prohibited the federal government from doing.

Trevor Burrus: Now interestingly, if we think about James Madison in helping to create the constitution, one of the things he was concerned about was state power, which is often forgotten by many people. He wanted the federal government to have a veto right over state laws that pressing liberty or that the general government didn’t want. And he also introduced in the first congress an amendment to incorporate the Bill of Rights to the states. So he seemed quite concerned about this, but other people seemed to be not as concerned about their state or they even want to set it at a time their country being as oppressive because they thought it was closer to the people. But then, of course, we also have the slavery issue which means that they needed to leave the states alone to some degree in order to even ratify a constitution that included slave states and free states. So, is it a combination of people who were concerned about state power like Madison who wanted to have it be able to be overridden both from the top from the federal government and from the bottom from the rights? People who wanted to preserve state power so they could keep slaves and keep the autonomy and then people who weren’t worried about state power because they thought the people were close enough to their state governments that it wasn’t much of a concern.

Gary Gerstle: Yes. I think this lack of concern about excessive power in the states comes from different sources. Madison is almost alone in his insistence that the most important amendment would be that amendment which did not get adopted, which would have been to impose a Bill of Rights on the states. And, for me, the greatest doing during this project and I think probably the greatest surprise among your listeners and other people who might read the book is that the Bill of Rights is not incumbent on the states really until the 1960s, more than 150 years after the constitution Bill of Rights are ratified. It’s an extraordinary and important unknown story. And, it’s also interesting to contemplate the fact that Madison, this man with enormous influence on the constitution in its shape, on these matters simply ignored and his proposal to incorporate the states under the Bill of Rights as though the piece of paper was dropped to the floor and never even merits a serious discussion. Why was this? I think part of the answer is slavery. They had forged the famous compromise that was going to allow the United States to go forward half-​free and half-​slave. And if you enforce the Bill of Rights on the states, some slaves may have been able to bring a petition to the courts saying that their rights as Americans were being violated. So, in a way, this threatens to reopen the most difficult question that the constitutional convention faced.

Trevor Burrus: And not even just slaves because many slave states had—it was illegal to be a white person who advocated abolition. So they could have brought up first amendment claim in that situation, so it could have endangered slavery in many ways.

Gary Gerstle: Yes. You’re absolutely right about that. So, slavery factored into it. That I think there was what I like to call the Alexis de Tocqueville Law of Revolution which is not really a law of revolution but how much difficulty revolutions have with completely separating themselves from what came before. He elaborated that law in relationship to the French Revolution, not the American Revolution. His point about the French revolution is that the Ancien Regime, the old regime survived in very powerful ways in the new revolutionary French state. And in some ways, I think older habits in America survived in the new republic. Many of the colonies by the 1790s were 100, 150 years old. They had ways of doing things. They had powers to which they were accustomed. There was a nervousness about bringing this revolutionary society into the world and a desire for a little bit of comfort. And so, why not simply continue to do things at least partly the way things had been done? Why not import the document of the public police into this revolutionary society? Perhaps that would assist in getting better order and bringing liberty out of chaos.

And then that fed into I think something that’s a lot of people who fashion themselves democrats didn’t think enough about and that is they really had trouble conceiving that a threat to liberty would come from their state legislature. When they thought about threat to liberty, they thought of George III. They thought of the British imperial state. They thought about concentrated power in Philadelphia, New York, Washington, wherever it was going to be. They didn’t think that a threat to their liberty would come from the state legislature because the state legislature was going to be composed of the people, and how could the people tyrannize themselves? Well, we now know through a couple hundred years of hard history that there are all kinds of ways in which the people can tyrannize themselves or tyrannize minorities within them. They don’t go with the majority mind. But I think there was a way in which democratic theory, the democratic practice had not evolved to the point where a lot of those people who are most concerned about tyranny in government thought that there was a genuine threat to liberty from government that was close to home. The state government, that was their community, that was their town hall. Everyone knew everyone else. In states like Pennsylvania, it really did seem like the people were there and they had a lot of difficulty imagining how this could be construed as a threat to their liberty. And so they were very slow to perceive the need for a polity that can conceives itself as liberal in the classical sense, has to protect itself against all threat to liberty, some coming from afar and some coming from near.

Trevor Burrus: And if you think about those first few decades of the federal government’s existence. I mean it is true that it’s hard to name many things that—it did many bills, large bills that it passed that created new departments of government up until the Civil War. We have a pretty sparse federal government, fights the war of 1812. It does the lease and the purchase. It has a bunch of fights over slavery and Fugitive Slave Act, the Missouri compromise and all these things. But generally speaking we don’t see a lot of growth in the federal government, but you start outlining how that growth occurs through sort of a method of constructing a liberal order from very sparse powers that the government—the federal government thought it had at least at the beginning.

Gary Gerstle: Yes, you’re right in terms of major pieces of legislation. We would have trouble pulling them out of the period because there aren’t many. But there are powers given to the federal government which uses standardizing weights and measures issuing a sense as counting the American people rendering them legible, developing a surveying system so that all the land that comes under control of the United States has the capacity to be parceled out and sold. The federal government, its biggest resource is its land and it commits very early to a pretty democratic distribution of that land to individual settlers. And the amount of land that is put into the hands of private householders is pretty extraordinary. And so, the government is amassing land. It is distributing this land. The post office may not seem like a big deal, but the United States develops one of the best and most efficient and cheapest post offices then known in the world, and this becomes important not so much for delivering the mail although this is important, but circulating newspapers throughout what has become a land-​rich republic and it finds ways to keep people in touch and to make them part of a single political community at a time when it would have been very easy given methods of transportation and habits of isolation at the time for parts of the United States to break off or to lose touch with the center and with each other.

And so the United States proves very effective at doing—at uniting the people of the United States. And one of its greatest achievements is not one that we often think about because we assume that this would simply be the case. It keeps a sprawling land-​rich republic together at a time when the betting person was wagering that, it would probably break apart, but it was simply too large. The federal government was too small. The refusal to contemplate a standing army, the military would be too weak. When I was younger, I was interested in Aaron Burr and I—one thing I could never understand about Aaron Burr is how such a distinguished man could engage in an apparent insurrection in what was then the American southwest. It sounds—

Trevor Burrus: Yeah. It is one of the weirdest things in his life where he goes down and tries to invade Mexico or get—

Gary Gerstle: Yeah. This man was almost President in the United States. He was a graduate of Princeton. He’s very well-​educated, very bright, very brilliant. Many people regard him as brilliant and very sophisticated. What the hell is he doing? Well, if you’re a betting man in 1800, you’re betting that the United States will not stay together, that it will break apart, that it will become what Latin America became, which is multiple republics descended from one imperial ancestor. So the most likely future of the United States was not what it became a single polity but 4 or 5 polities, all descended from Britain, having various relations with each other. This is what Burr grasped in being something of a betting man. He got to get one of these republics for himself. It seems ludicrous to us, but it was a very plausible and wise wager to make at the time and, thus, one of the biggest achievements of the United States is simply hanging together, remaining an integrated republic and this elevates the war of 1812 into—another thing I never understood when I was younger—one of the most important wars that the United States waged because if it was going to break apart, this would have been the moment. Where it happens, Andrew Jackson is the general-​in-​charge of keeping the United States together in its vulnerable southwest and what we now think of as the southeast really the area around Orleans, Alabama, Mississippi, an area beset by multiple imperial powers from Europe, multiple Indian tribes, many of them hostile to the ambitions of the United States. And this was a moment of great risk and a moment when the United States easily could have lost the war and either seen its land mass barely reduced or else breaking apart into multiple republics.

So, if you want to look at the achievement of the United States in terms of what essential authority is able to accomplish in the early 19th century, first and foremost, it’s keeping a vast territory together as a single polity governed by a commonly understood set of laws and, of course, one constitution. And one of the things America demonstrates at this moment is even though it does not have a standing army, it demonstrates an extraordinary ability through the use of militias to scale up and fight ferociously for defensive purposes. The militias were volatile, they were unruly, but under the right general, they could prove very, very effective in terms of safeguarding the United States.

Trevor Burrus: And you discussed these 3 strategies that the federal government used or people in the federal government in order to not necessarily evade but maybe creatively use the 18 enumerated powers in Article 1 Section A in order to do maybe a little bit more than they would seemingly be able to do on the face of the constitutional powers. So I want to go—I’d love to go through those. One of them you call exemption. How does that work?

Gary Gerstle: Well, the federal government beyond acquiring land, defending it, distributing it, at a certain point has got to want to do things or its people got to call on it to do things, building transcontinental railroads, for example, Americanizing immigrants, silencing the centers who are perceived during war times being a threat to the republic. With all these—perhaps regulating pornography obscenity. With all these matters, the question becomes “Does the federal government have the right to do this?” And the federal government is hobbled by the interpretation of the courts regarding the constitution, that the only powers it has are powers expressly given to it. And these turn out—

Trevor Burrus: Well, it seems pretty clear from the face of the constitution at least.

Gary Gerstle: Yes. And these powers turn out not sufficient for a nation that wants to expand across the continent, that wants to industrialize, that wants to encourage industrialization and manufacturing that is going to need to wage war. And so, the government begins—or state builders begin to develop strategies to expand government power where in a strict understanding of the constitution, it may not be permitted to go. One of these is exemption. An exemption refers to the U.S. having powers that exceed those given to it in the constitution and it does these under two circumstances. One, in times of war which is permitted to do by the constitution certain limitations and government power are suspended in terms of war emergency. And the other one in which this happens is when the government is acting beyond the boundaries of the United States, foreign policy, immigration where the ideas develop that the constitution does not follow the flag when it goes abroad, that the constitution is really meant to govern the land mass of the United States, and that beyond the borders of the United States, that the United States is able to act in ways where it exempts itself from strict constitutional scrutiny. And this becomes a mechanism for expanding American power with regard to war. It’s understood to be a temporary power that’s given only after a declaration of war and that is rescinded after a peace treaty or a treaty ending, after the cessation of hostilities is achieved. The other way in which it is deployed is for the sake of acquiring colonies for the sake of managing a prison outside the borders of the United States which are not, got to be subjected in a strict sense to constitution.

Trevor Burrus: Such as Guantanamo Bay.

Gary Gerstle: Guantanamo Bay. This becomes an important mechanism that the United States uses to do things that, otherwise, it’s prohibited from doing and the justification for it is either that it is temporary and that the full reign of the constitution be restored. Or the justification is that this is occurring abroad and one can’t expect the constitution to be applied in situations in which the United States is acting abroad because other countries will not be operating under that constitution and, thus, the American government needs a broader sphere of action and autonomy.

Trevor Burrus: Then you point out that they even invented the idea of an unincorporated territory which is not really contemplated by the constitution as one of these areas where they can kind of do what they want and they’re not constrained by the constitution, which I’d never actually thought about before.

Gary Gerstle: Yes. One of the remarkable features of the constitution and this actually comes through the northwest ordinances which technically precede the constitution is—and it’s remarkable because no other polity in the world is behaving in this way at this time, and that is any new territory that the U.S. acquires in its continental space. It pledges to put that—to incorporate that territory which means putting it on the road to state very quickly, meaning those who settle that territory will very quickly acquire the full rights and responsibilities of existing citizens and existing states in the United States.

Trevor Burrus: That’s pretty unique in world history, I think.

Gary Gerstle: Certainly when the U.S. began doing it, no one else was doing this. The typical mode of expansion was to have an imperial center. And insofar as there might be citizens at the center who had full rights, there’s no instance of those at the center extending the full extent of those rights to the territories on the periphery which are being included in this land mass. The city states of Italy in the early modern period might have contemplated something of that sort had they expanded their territory immensely, but they did not. So this is a very important and very democratic innovation and becomes—allows for a remarkable kind of expansion so that those territories brought into the United States are treated in the same way with the full rights of responsibility that existing states have. This begins to become a problem when the U.S. is taking territory that is inhabited by a lot of people who are not white, think of the Southwest, think of Oklahoma, with Indians, think of Arizona and New Mexico becomes another kind of problem in Utah where the United States does not want to admit Utah as a state until the Mormons pledge to give up polygamy. So the admission of Utah and Oklahoma and Arizona and New Mexico are held up for close to 30 years which had been unheard of in terms of keeping a territory waiting. They are ultimately admitted as states and Utah is forced to give up polygamy as a practice as part of its constitution as the price for admission to the United States.

But in the course of this long period in which the United States is uncomfortable with these new territories being admitted as incorporated territories, jurists began to develop a conception of a new kind of territory which will be the unincorporated territory. And this is really the equivalent of a colony where a territory is acquired and not put on the road to statehood and that becomes the Philippines in 1898, Puerto Rico in 1898 and also it’s available for other territory that the United States is contemplating taking as the rest of the world is rushing for its colonies in the late 19th and early 20th century, not many U.S. is not acquiring many colonies, but it develops a mechanism that gives it the ability to have colonies in the European style. This is what the unincorporated—the mechanism of the unincorporated territory allows. It frees the United States from the obligation to put the Philippines and Puerto Rico and other territory of that sort on the road to statehood.

Trevor Burrus: Another strategy you mentioned by which the limited powers of the constitution are used to do things that possibly are not contemplated by the constitution is something you called surrogacy which is something actually we talk a lot about here, not by that name. I like your name, but a lot about here at the Cato Institute in terms of the government using one power to get around what it shouldn’t be allowed to do if it directly allowed to do.

Gary Gerstle: Do you have a name for it? What’s your name for it?

Trevor Burrus: Constitutional avoidance is generally what we call it. This happened with the Obama Care case actually, for example, in our perspective. A direct regulation of—what was supposed to be a direct regulation of—what was supposed to be direct regulation of commerce turned into a tax which is an interesting history in the sense of as you discussed the first drug laws were tax laws. The first firearms laws were tax laws, the use of the Mann Act and things like this to do something that you can’t directly do.

Gary Gerstle: Yes. Well, I’m glad we had a chance to talk about this. I think about using the term surrogacy. It’s a more efficient term than—

Trevor Burrus: It is. Yeah, it’s good.

Gary Gerstle: --constitutional avoidance. So, maybe insert that into your vocabulary. It’s a similar concept. If the government wants to do something that it’s not clearly authorized to do, how does he do it? One technique is to find a power that is clearly authorized by the constitution which is the power to tax, the power to regulate interstate commerce, the power to set up a post office and to hang on that constitutional pay, something that is not so clearly authorized by the constitution. So, in the late 19th century, citizens are badgering the federal government to do something about what is seen by some as a rash of obscenity. The federal government has no power.

Trevor Burrus: Is this like women’s ankles obscenity kind of stuff?

Gary Gerstle: Well, you know, you could say obscenity is in the mind of the beholder but—

Trevor Burrus: Yes.

Gary Gerstle: --there were people who were very upset about prurience, pornography, however, was defined in the late 19th century and they were calling on the federal government not just the states to regulate it. The states have the power to regulate this under the police power. The federal government is not. And so the—what advice the government comes up with is to say, “Well, we will use the post office to attack the obscenity problem by saying that it is wrong and it does a disservice to the post office to put any obscenity through the mail.” And the government has the power to regulate the mail and it argues and this is upheld constitutionally, therefore, has the power to exclude certain materials from the mail that it deems to be injurious for the good conduct of the mail. And this becomes the mechanism through which the federal government becomes involved in regulating pornography. Now it can only do this through the mail so in that way it’s a limited power. If I’m handing a pornographic magazine to you when I see you on the street, that’s not a violation of the law. But this is a powerful example of the government using a power given to it to do something in an area where it is not so clearly authorized to exercise its power.

Another indication is the Mann Act in the early 20th century where the federal government does not have the power to outlaw prostitution, but it says that anyone carrying a prostitute across state lines is poisoning interstate commerce. The federal government has the right to regulate interstate commerce and so this becomes a mechanism for involving the federal government in doing something it’s not so clearly authorized to do. And the commerce clause becomes the favorite—and this is what I call surrogacy—using a power given to the government to do something else. And the commerce clause becomes the most frequently invoked power of the federal government to expand its activities beyond the sphere of powers expressly given to it in the constitution.

Trevor Burrus: And then the final one you discussed is privatization which is particularly true in terms of how the government used public/​private partnerships to again, for example, build a railroad which there is no power of the federal government to build a railroad, but they can do things to encourage the building of railroads and other things that they did.

Gary Gerstle: Yes. The other technique is to turn to the private sector to do things that the government is not so clearly authorized to do. Build railroads, build a colonial service through volunteer missionaries, ask private volunteers to staff the federal police force which the American government does in World War I because its federal police force, the Bureau of Investigation is so small. If it wants to Americanize immigrants, if it wants to encourage immigrants and others to live a more moral life but doesn’t want to invoke its powers, it tries to involve private groups in these activities and it’s dependent on these private groups volunteering to do this work and sometimes these groups genuinely do volunteer because they want to do something to be in the nation’s service. But at other times, this “volunteering” requires incentives for these private groups. So capitalists are not going to build a transcontinental railroad without very large financial incentives. And more and more, the more the federal government turns to the private sector, the more it finds itself giving private actors incentives to do the government bidding, and this opens the government to paying out huge fees to private actors and it opens up the government to the influence of private money on federal activity. You can imagine the kind of deals that begin to be worked out between private actors, private corporations who in the first instance don’t have the welfare of the republic in mind but are more interested in getting very juicy contracts to do the work that it perceives the government needs to be done. And the government also often loses oversight and control over these activities once they them out to the private sector.

But if you were—no one has actually quantified the amount of activities undertaken by the federal government or authorized by the federal government over the last 100-150 years. If one were to do that, the numbers of the people involved, the volume of money involved, the number of contracts involved as you might imagine would be huge. And this becomes a third way in which the government is finding a technique that allows it to exercise power beyond where it’s clearly authorized to go.

Trevor Burrus: And we move into World War I which is a turning point in world history in a variety of ways, and it really is—you kind of call it—you write that frustrated by the fragmented world of American governance—many in their ranks are aspiring progressives—saw war as their deliverance. The demands of war would require authorities to put quaint objections to the growth of federal government power aside and build a kind of central state that could win the war, and that creates pretty new types of industries and a new governing class of people who really look at the federal government’s powers in a different way.

Gary Gerstle: Yes. If you’re a nation-​builder in the early 20th century, not just in the United States but anywhere in the western world or maybe anywhere in the world, you put a lot of emphasis on building your nation and the thinking at the time was that if you got to build your nation effectively, you need a large centralized capacious and powerful state. This is what the great European powers seem to have. The states assisted these European powers to colonize a lot of the world to spread their commerce and industry and power everywhere. And if the United States wanted to play in this game, it was thought to need that kind of state. And even if one opposed imperialism as many state-​builders in America did, it was also thought that if you wanted to build a just society, if you wanted to distribute wealth, a capitalist industry was creating fairly between the rich and the poor, you needed a strong state that could on the one hand regulate capitalism in its own interests and, on the other hand, you needed a strong government that could redistribute some of the wealth that capital was generating from the rich to the poor.

So, if you were on the right as an imperialist, if you were on the left as a socialist, both sides agree that in order to play in the sandbox of the big nations, one needed a big central state. And so there were many in America who want this. On the right, J. Edgar Hoover is someone who wants it. He wants a large national security state. He gets a chance to build it in World War I. On the left, you have the reformers—Woodrow Wilson, Herbert Croly. Theodore Roosevelt was not in power, but this is his vision as well. They want to build a large regulatory state to get what they saw is unruly capitalism under control and to redistribute some of the wealth that capitalists have been accumulating. And they see World War I as their deliverance and here’s a chance to get rid of the fuddy-​duddiness of American government, this artificial concern with constraints on central government power, too much worry about respecting the rights of the states. Just be done with that and build a large central state and it does appear that the U.S. gets that big centralized state in World War I but ultimately I think it’s a mirage. It’s more like a white city built for the 1893 world’s fair. It looks beautiful. It looks imposing. It seems to have all this power, but it really is a façade and one measure of the façade nature of it is that every big agency just about that gets built and World War I gets taken down within 5 or 6 years after the war has ended. This includes the big military. This includes war industries board. This includes what Hoover had begun to build as a big FBI. He desperately wants an internal security law that is going to allow him to build the FBI into the institution that would finally become who doesn’t get it.

So the dreamers on both the left and the right actually do not get what they want in World War I because the United States is remaining true to its heritage of after the war emergency is over returning the central government to its limited character, allowing the states to continue with substantial powers. And so the moment when deliverance is achieved is not so much World War I even though there were big efforts to do it then, but it’s World War II and then the Cold War. It’s the era of near permanent war that America enters and that is the occasion when I say American Leviathan is built. That is when the United States acquires the central government of the size and reach that was characteristics of European societies of the 20th century.

Trevor Burrus: It’s the near total war as you described it of that post-​war period and then the Cold War that creates an agreement as you write. The imperative of fighting communism, everything and forever—everywhere and forever, impelled republic is not only to acquiesce to the New Deal but to sign on to an open-​ended program of federal government growth and resource enhancement. That’s when they kind of get a bipartisan, so to speak, agreement on American Leviathan. But in between World War I and the post-​war period is the New Deal, of course, which is pretty substantial in re-​envisioning what it means to be a liberal at least to some degree. And one of the things I like in the book is how you give due weight even going back to before World War I to the influence of farmers on creating some of these novel inexpensive federal programs.

Gary Gerstle: Yes, the New Deal is very important. And the way to understand it is that this is when the meaning of liberty gets transformed from what increasingly is called negative liberty. These are the terms of Isaiah Berlin, a political philosopher—negative liberty meaning liberty in the 18th century since freedom from government. And instead, there is an idea developed about positive liberty, freedom for. And in order for people to be truly free, they need a level of economic security. They need a pension. They need education, which only the state can provide. And so this is when liberalism becomes associated with progressivism. This is when the term in a sense is stolen from the classical liberals and becomes the slogan for progressivism reform, a kind of a light form of social democracy in the United States.

And I’m glad you appreciated my chapter on agriculture because it usually does get ignored. It’s kind of like the states. They’re meant to disappear and like the states, agriculture is meant to disappear because we all know modern societies are made up of industry and cities. But in the United States, the states never disappear and the agriculture doesn’t really either.

Trevor Burrus: They still got flies. I mean really—but they used to be very influential, even more so.

Gary Gerstle: Very influential and the agricultural sector and the farmers used to be central to American politics. And I became interested in why it is that agriculture rather than labor or industry becomes really the vanguard of New Deal reform. One associates the New Deal often with cities, with urban progressivism, with the rise of labor, the rise of labor unions and yet most pioneering work being done in the 1930s is being done in the agricultural front. And I recreate the story of why agriculture becomes such a dynamic center of reform not just in the New Deal but really beginning in the 1890s. And it begins with the populace of the 1890s who are seen as a dire threat to two-​party government as then existed that angry farmers could upset the whole political system of the United States. Populism is defeated but the farmers’ grievances are taken very seriously and this is one of the responses is that the federal government allows its Department of Agriculture to grow, and it finds a way to grow that accommodates the American federal system rather than challenging it and this becomes one of the secrets to the growth and dynamism of agriculture rather than Washington simply imposing its reforms on all of American agriculture which in the early 20th century is best.

It decides to distribute its resources to the states. It allows a lot of its programs to be run out of extension, schools that are part of state universities. It develops a lot of power and resources onto state governments and these agricultural extension units. And it draws the states and through the states, local groups of farmers organized in farm bureaus into the elaboration of farm policy. And this allows the federal government on the one hand to have a presence in every agricultural county in the United States by 1920. It’s the most comprehensive system that the federal government has elaborated in any of its departments. And it also gives local people a real say in determining what agricultural reform is going to look like at the local level. So when the crisis of the New Deal comes, the government has this extraordinary system in place with which to deliver services and new programs. But at the same time, it must respect the wishes of local farmers and at this time, the local farmers have federated themselves into powerful interest groups that privilege the better-​off farmers against the poorer farmers. And by the 1930s and 1940s with all these government money flowing in, these better-​off farmers are more interested in using government just to increase their ability to be secure rather than to save the entire agricultural sector. So the agricultural sector goes from being the most dynamic area of government growth to demonstrating the dangers of government growth because by the early 1940s, observers of the situation in agriculture are no longer hailing the dynamism innovation of the Department of Agriculture. What they’re doing instead is referring to this as the first iron triangle, an interest group associated with agency of the government having several senators and congressmen in their back pocket. That refers to the iron triangle, so that all deliberations are done with a lack of transparency and with the form but not the substance of democratic deliberation. So it’s seen as ultimately a failed experiment in government reform. That makes the story of agriculture quite interesting.

Trevor Burrus: And it’s—I mean I think it’s relevant to lessons now. There’s an ossification that we now have with agricultural programs. I was working on a case recently dealing with the recent administrative committee which is a product of the 1937 Agricultural Marketing Agreement Act, and it’s something that probably shouldn’t exist but was created around the time of the New Deal. But, of course, with the agricultural sector, we have a bunch of people with a fair amount of political power—we call them populace as you do in the 1890s—demanding a certain type of protection from the standard competitive nature of capitalism which is a theme in American history and world history too, demanding protection by the government for what you happen to do and that might explain different populace movements at different times, but I think to bring it into modern times too, it could explain some of the things that are happening now and the desire for people to protect themselves from various types of competition and to have the federal government be their agent in that regard.

Gary Gerstle: Yes. Well, the government has been a very important agent of regulation and redistribution and there have been times the New Deal being one of them when majority of the American people wanted the government to use its powers in this way to protect individuals and groups from the vicissitudes of capitalism. And one of the things that agricultural reform does achieve is that it eliminates the boom and bust character of rural areas. It does bring a level of security. It does ensure the continuation of a strong food supply. These can be counted as achievements and many of them emerged from the desire of people who were at the mercy of market forces to have better protection. And the example of agriculture also demonstrates the dangers of such protection. If a government agency becomes too insulated, if it is able to separate itself from transparency, from periodic review, if it becomes an agency of bureaucracy that would go with its own steam, this becomes a danger. You’re right today there are—we have been living through a period in which a lot of the regulation put in place during the New Deal has been removed in which the virtues of global free trade have been celebrated in which market forces have been powerfully unleashed and have generated all kinds of new wealth. And as happened in the late 19th century, as this wealth has been created, so has a very unequal distribution of this wealth. The promise of wealth creation is that there will be enough of it to trickle down and that if you create enough of it, enough of it will be available to all those—or most of those who need some of it and are willing to work for it.

But what we’re seeing now is a return to some of the protests of the late 19th and early 20th century where a lot of ordinary Americans are feeling that they’re not getting their fair share and that in order for them to get their fair share, the reverence for free trade has to be interrogated, that some kind of agency has to set a stride the pathways of free trade in the world, that someone has to be at least asking questions of proper distribution. And if a better distribution can’t be achieved, then there has to be some thought given to putting limits on free trade and restoring more of a nationalist and protectionist economy and, of course, this is what Trump has been arguing from the right and Bernie Sanders from the left and they have been the two most dynamic players one could argue in the political contest of 2016. And in that way, they resemble very much the protest and also the fact that these protests come from the left and the right, that first emerged a century ago during an equivalent period of great opening of the world economy to trade industry and dynamism.

Trevor Burrus: And so we—in this post-​war period, kind of I think speak, we have this post-​war period which I think we’ll talk a little bit about the final vindication or—I’m not sure vindication is the right word. A final victory of American leviathan over states particularly in terms of the Bill of Rights and the Civil Rights Act. But you also—that leads into what you call the conservative revolt which I think—and you actually mentioned Cato at one point in your book, but we’re libertarian not conservative but I appreciate the mention, that we’re part of this sort of backlash to an improvisational growth in federal government for 200 years but especially for about 70, at least before that time.

Gary Gerstle: Yes. I consider it to be—I consider the conservative revolt against big government to be the most important local movement of my adult life and I’ve been around a fair amount of time now. So, that’s a long period. I think Reagan is second only to Roosevelt in terms of significance as 20th century presidents and his most important battle-​cry was to end the era of big governments and to restore the power of private enterprise, to remove the regulatory state and to free up the dynamic entrepreneurial energies of the American people and, thus, to give them the freedom promised to them in the 18th century. This is a very powerful message and it has into a very powerful movement of which the Cato Institute is part. And, so I do bring the story up to the present which I think one needs to do and I think the most significant part—most significant contribution there is to understand why this has been such a powerful movement given the many good things that I consider the central government to have done. We may not agree on the good things that the central government has done.

Trevor Burrus: Some of that might have been good, but they might have been done through other mechanisms too.

Gary Gerstle: Yes. Yes. And I think my understanding of the power of the conservative movement is precisely through the improvisational way that the federal government has run. Precisely because it has not had a police power in the 18th century, a power to act for the good and welfare of the commonwealth, has had to improvise and it has had to use exemption, privatization, surrogacy that we talked about earlier to make itself larger and to expand into areas where constitutionally it was not so clearly allowed to go, and it proved very effective in doing so especially once a supreme court full of Roosevelt liberal appointees took shape in the 1930s and 1940s and this became the war in court of the 1960s. Especially once that happened, this court was willing to legitimate the devices of improvisation which state builders had been using and this secured the federal government’s growth throughout the post-​war period.

As to national security which becomes the fourth improvisational technique, the republic signed onto this. Eisenhower acquiesces to the New Deal. He agrees to support social security, the National Labor Relations Act. He agrees to support the vast and progressive taxation system that the New Deal has put in place. He and other republicans are doing this for reasons of national security. So, the federal government growth becomes very powerful. It is active in all sorts of areas. But its power grows without what I would call commensurate authority or to put it another way, to rephrase that, its authority is not commensurate with its power. It is always struggling for its legitimacy. And there’s—it’s strange to look at federal government today which is so large and does so many things and is never really going to be taken down in any fundamental way. It’s odd to think that this government has had to struggle so hard for its legitimacy for its right to exist, so hard to demonstrate its authority. Still every new piece of—major piece of legislation that is passed is litigated for years in the courts. The most recent example of that being the Affordable Care Act and the drama around that, which has unfolded around 3 or 4 years.

And so, my effort is to understand why a state that is so large that in my view is actually so permanent, why it is so constantly in battle? And my understanding of this has to do with the American constitution, a constitution that gave the central government only limited powers. The central government is asked to do things that go beyond those limited powers, so it finds ways to grow and increase its power but in ways that call its legitimacy into question. And what the conservative movement has done over the last 40 years is to power that legitimacy challenge and that is what has made the conservative movement so powerful and I would say the dominant ideological movement of our time. If it has bedeviled liberals, I think it also has bedeviled conservatives too because I would say the conservative movement has never had political power commensurate with its ideological power, and this has frustrated the conservative movement and I talked about this in the final pages of the book. And looking for scapegoats for why conservatives have not been successful in implementing their policies given the dominance of their ideology, this has impelled I think conservatives to move further to the right to demand a politics of purity, to blame compromises within conservative ranks, to blame sometimes democratic interlopers and has led to radicalization of conservative politics which we’re seeing today, which I think is not in the best interest of conservatism nor in the best interest of the country. I understand that is another version of the liberal dilemmas. Liberal dilemma is power without authority. The conservative dilemma is ideological authority without political power. And this has burdened the conservative movement and frustrated it and led to a kind of paralytic situation in politics today that I consider not to be healthy for the nation as a whole.

Trevor Burrus: Well, it’s an interesting take. We have to deal with—I mean conservatives, the best argument they have is that—which you seem to endorse—is that the constitution has been stretched in a pretty profound sense and you kind of implied that at the end as saying that—I think that’s a resonating point and, of course, we make that—Here at Cato, we view this differently a little bit than conservatives arguing for things like gay marriage in the constitution and things like that, and also against the drug war and all those other things. But on its face, it has been an improvisational growth and so—and you actually say on the last page basically that the constitutional amendment process has been sapped and maybe liberals and the modern since there were progressives should be pursuing amendments along those lines to acquire the justified authority that comes with the power of the federal government, almost to retcon the federal government and say everything that maybe that exist now, we’re going to make it—we’re going to give it good constitutional authorization as opposed to the thin read of the commerce clause, for example.

Gary Gerstle: Yes. I think one sign of the achievement of conservatives and I would consider libertarians in Cato part of this achievement is making the constitutional notion of the federal government as limited in its powers, a powerful force in American political life. I think not so in the years of 1960s or 1950s and what the conservative movement and libertarian movement has done the last 30 years is to give that argument pride and place. It’s something that everyone’s something that everyone has to reckon with and so that I as a liberal, I’m reckoning with it. It’s a sign of its power. And another sign of its power is that I do think that awareness, knowledge, ability to discuss the constitution is much stronger among conservatives and libertarians than it is among liberals and leftists. And that liberals and leftists have become too comfortable using these improvisational techniques and thinking there’s no parallel when using them, and I think that was a big shock to liberals and leftists when the Robert’s court denied the Commerce Clause as the basis for justifying the Affordable Care Act in its ruling.

And my call on that final page is in a sense to say take the conservative constitutional arguments seriously. I’m saying this not to conservatives obviously but to liberals and leftists and understand that if liberals and leftists want to defeat the arguments of conservatives and libertarians about the nature of the constitution, they have to venture forth onto the constitutional terrain with much greater vigor and much greater force than they’ve been willing to do the last 20 years. In other words, liberals and leftists have to stop seeding the ground to conservatives and libertarians, and that means opening a discussion which has been largely dead, which in other parts of American history and in other parts of—areas of reform has not been dead and that’s the notion of a living constitution, a constitution that has to be amended, changed if it’s going to continue to be relevant in the 21st century which is a very long way away from the world in which this constitution was created.

If this constitution—if liberals and leftists are going to get what they want from this constitution, they have to enter that terrain and they have to begin making arguments about the constitution that can stand up effectively to the arguments that conservatives and libertarians have made. And that means raising questions about amending the constitution so as to give the federal government not just the power, which it has, that the authority which it has latched. That is not the solution that those of you at the Cato Institute would favor.

Trevor Burrus: True.

Gary Gerstle: That is the kind of debate we ought to be having with each other. And my criticism of liberals and leftists is that they have abandoned the field. They have abandoned the constitution to the right and I think that has seeded ideological power to conservatives and libertarians and if liberals and leftists want to change the debate in a fundamental way, they have to return to the constitutional frame. They have to engage in these debates and they have to talk about the constitution because like it or not, the constitution very much defines who we are as a nation and what kind of government we can have.

Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts, please take a moment to rate us on iTunes. Free Thoughts is produced by Mark McDaniel and Evan Banks. To learn more about libertarianism, visit us on the web at www​.lib​er​tar​i​an​ism​.org.