Gary Gerstle, now professor of American history at Cambridge University, has written an audacious overview of the entirety of the American republic. The title is a good guide to the book in general: he persuasively argues that our two primary layers of government in the United States are each founded on a fundamentally different relationship to the notions of “liberty” and “coercion.” In short, the national government established in 1787 is dominated by a classically liberal impulse based on a fear of a too-strong government. Even if critics of the Constitution were correct in describing it as a “consolidationist” alternative to the system established by the Articles of Confederation, that did not necessarily add up to a truly “sovereign” national government. Instead, in a common mantra, it was to be a limited government of assigned powers. States, on the other hand, were viewed as basically absolute in their authority, save for limits imposed by state bills of rights (since the Bill of Rights added in 1791 applied only to the national government). As such, states possessed an all-important “police power” that legitimized all sorts of [End Page 90] coercion in the name of enhancing the “health, safety, and welfare” of the community (pp. 4, 81). Even the addition of the Fourteenth Amendment in 1868 had little consequence with regard to taming the states’ police power. Segregation was upheld in Plessy v. Ferguson (1896) as an almost routine exercise of protecting the community’s welfare.
To be sure, things changed dramatically throughout the twentieth century, although not until dramatic changes took place in basic constitutional doctrine. Thus, the same Supreme Court that upheld segregation was willing to invoke the due-process clause of the Fourteenth Amendment to curtail exercises of state police power that limited the rights of employers to impose, through contract, onerous terms on their workers. At the same time, national legislation that would have banned child labor in 1918, based on the power to regulate interstate commerce, was struck down as merely “pretextual,” effectively an attempt to create a national police power denied to the central government. The New Deal, not to mention the pressures brought to bear by fighting two world wars, changed much in this regard. Indeed, Gerstle describes the modern American national government in many respects as a “Leviathan state” that has never received full legitimacy from the public at large, not least because these changes were never reflected in self-conscious amendment of the Constitution, which he in fact supports.
The book is well worth reading for its ambitious synopsis of American political and constitutional history (although he makes some minor errors in presenting some of the particular legal cases he discusses). It is an excellent complement to Eric Foner’s The Story of American Freedom (1994), which is a similarly ambitious attempt to capture the various notions of “freedom” (or “liberty”) that have informed (and divided) Americans throughout our history. Foner’s book, though, is more a history of ideas and concepts, whereas Gerstle’s achievement is rooting some of these important differences in the particular institutions of state and national governments. Although the whole book is obviously worth reading and thinking about, the [End Page 91] chapters on American political parties, the organization of agriculture, and American labor unions are particularly excellent. Indeed, his analysis of political parties, and the all-important fact that their work as part of the American political system depends on private finance, is the best I’ve ever read, immensely illuminating not only about the nineteenth century but about our polity today. It is no surprise that Liberty and Coercion is already winning awards.
SANFORD LEVINSON is W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School, and professor of government, University of Texas–Austin. He is the author, most recently, of Framed: America’s 51 Constitutions and the Crisis of Governance (2012) and An Argument Open to All...