While these books share a preoccupation with the ways that ideas underwrite and infuse institutions, and with the clash between wonted ways and new paradigms faced by the American state in the early twentieth century, they evince nearly opposite sensibilities and argue for opposing positions on the emergence of US constitutional modernity. Gerald Berk's Louis D. Brandeis and the Making of Regulated Competition anatomizes and celebrates the innovations of reformist “people's lawyer,” Woodrow Wilson advisor, and Supreme Court Justice Louis D. Brandeis in fashioning a new approach to market regulation designed to advance the nation's traditional commitments to freedom, equality, and democracy under novel economic conditions. Patrick Garry's An Entrenched Legacy animadverts against the same initiatives and innovating spirit that Berk celebrates as having wrecked the institutional design instantiated in the US Constitution by its Founders with the aim, and effect, of protecting American liberties.
Berk's ambitious book is an intricately crafted study of the genesis, goals, and functioning of the Federal Trade Commission (FTC), in which Brandeis played a critical role. The unprecedented concentrations of economic power in the late nineteenth and early twentieth centuries raised profound questions about the fate of the nation's creedal commitments under the existing institutional order. Advocates of laissez-faire denied that there was a problem, insisting that no, or few, institutional reforms were necessary. The reformers were divided into Populists, who supported markets, but only once they were cleansed of undue concentrations of economic power through the vigorous (nonbureaucratic, legal) enforcement of antitrust laws, and (New Nationalist) Progressives, who accepted that large agglomerations of corporate economic power were a concomitant of modernity, saw the Populist program as reactionary and nostalgic, and advocated that instead of destroying the massive new enterprises, the nation build a powerful new regulatory state that would function, where necessary, as an effective countervailing force.
Berk's subject is the creative “third way” reformism—“regulated competition”—proposed by Brandeis, and instantiated in the new FTC, as a way to bridge the internal divisions that threatened to cripple the reformist camp, and, Brandeis insisted, most effectively advance the nation's values and its capitalist economy. As a business lawyer—and progenitor of today's management consultants—Brandeis had been renowned for his insatiable appetite for the concrete facts concerning how specific businesses and industries actually worked, his evangelism for scientific management, and his impatience with the conceptualism and abstractions of those who, from the comfort of their studies, purported to deduce ostensible laws of economics and business and then impose them through law. (Accordingly, he buried himself in engineering and industry journals and spoke to accountants, spurning the economics literature and economists.) Brandeis's experience (including, seminally, with railroads and the Massachusetts shoe industry) had convinced him that many of the most bedeviling practices of modern industry—which businessmen had defended their right to engage in, tooth and nail, in the name of economic laws—were, in fact, little more than artifacts of industry convention and ignorance. (Accounting conventions that nonsensically valued volume over profitability, for instance, provoked the sort of “cutthroat competition” that, in time, led to monopoly power.)
Stepping outside the terms of the Populist-Progressive debate, Brandeis proposed that the new agency, rather than proceeding via preconceived formulas, would delve deeply into the nature of specific markets, deciding the best way forward through an inductive, contextual, and pragmatic assessment. Informed by republican values, the agency would sponsor interfirm deliberation, which would lead to collaborative learning. Committed to “best practices” (and informed by Brandeis's encyclopedic knowledge of business organization—such as of the German steel industry), the agency would tutor businesses in uniform cost accounting and benchmarking (standardizing measurements of performance to enable comparison). Such “cultivational administration” (p. 29) would socialize knowledge, perturb habits, promote efficiency, and upgrade competition by grounding business behavior in actual numbers and processes, as opposed to accepting passively its dysfunctional roots in mismeasurement, misjudgment, and ignorance. The Brandeisian FTC would be a “nimble agency with the capacity to steer a diverse economy from destructive competition to product diversity, innovation, and productivity” (p. 28).
The book concludes with an account of the antagonism between the FTC and the formalist, conceptualist courts, who insisted that the agency apply the dichotomous labels “competitive” or “monopolistic” to the industries it was engaging, with its jurisdiction limited if the industry fell into the former category and expanded if the latter. Despite being brushed back, and in some ways thwarted, by the courts, Berk argues, the agency and the courts nevertheless reached a modus vivendi that allowed the FTC to move forward in productive, if not ideal, ways.
Drawing upon—and contributing to—the literatures of multiple fields, including law, organizational theory, economics, business history, and American political thought and development, Berk challenges reigning scholarship on a number of fronts. Most concretely, he challenges historians and political scientists who have characterized the FTC as a weak and compromised agency, the spawn of a failed, interest-addled political process. He argues that these predominant understandings misconstrue the FTC's nature by measuring it against a Weberian yardstick. Channeling the spirit of his hero, he insists that the nature and performance of institutions is best assessed by steering clear of a priori assumptions about ideal types and parameters, and taking a hard look, on their own terms, at the facts.
Berk's study is additionally offered as a counter to mainstream institutionalist theory, which emphasizes the rigidity and stickiness inherent in dynamics like path dependency. Through his account of the emergence of regulated competition, he argues that institutions are more fluid, or “syncretic”—they are multipart “bundles of rules, cognitive principles, or instruments that can be decomposed and recombined in unpredictable ways” (p. 15). Institutional entrepreneurs like Brandeis, in bursts of bricolage (Lévi-Strauss), can creatively decompose and recombine those parts in novel ways to solve problems. As Brandeis's example also illustrates, part of this process involves telling new stories about the nature of social, economic, and political problems—performing narration and doing political theory—and how those problems might be resolved through the creation of effectively designed institutions.
It is not clear from Berk's study how common the syncretism he finds in the founding and early practice of the FTC is, relative to the more rigid institutional dynamics whose status he proposes to demote. The period he is writing about is no ordinary time, and the creative syncretist he is profiling is no ordinary man. Berk is characteristically (and perhaps naively) liberal in his assumption that if only the actors are properly educated in what is in their own best interest, conflicts will fade and interests harmonize. For example, how characteristic of the sorts of problems that regulators face are the flawed methods of cost accounting recounted in this book? Finally, he is largely uncritical of Brandeis's understandings of markets and economics, many of which, over time, have been discredited, though some have been vindicated. He is also uncritical of Brandeis's values, some of which (for instance) led him to a relative indifference to consumers, which many would find unacceptable today. A sense of perspective on these matters would inspire more confidence in his ultimate conclusions about the FTC's regulatory successes and failures, which, given their complexity, most nonexpert readers will be unable to fully assess. That said, this is a rich and rewarding study.
In sensibility, Patrick Garry's book is the antithesis of Berk, and Berk's Brandeis. Where Berk and Brandeis value fluidity, pragmatism, experimentalism, history, context, and complexity, Garry stumps for fixity, categorical reasoning and classification, consistency, regularity, abstract principles (understood acontextually), and simplicity. Garry, it seems clear, would have vigorously fought Brandeis on the FTC, and sided with the agency's categorical, constitutionalist opponents.
An Entrenched Legacy is a lawyer's brief for a formalist, conceptualist conservative constitutionalism. It asserts that the “double security” of traditional (pre–New Deal) understandings of federalism and separation of powers as set out by the nation's eighteenth-century Founders best protect liberty (see Federalist Paper No. 51). At the time of the New Deal, however, the Supreme Court abandoned these understandings, ringing down the curtain on “the constitutional period” of American government, and setting itself up as a renegade centralizing institution. During the Warren and Burger Court years (1953–69 and 1969–86, respectively), by imputing novel meanings to the Bill of Rights through a series of illegitimate “moral and cultural edicts,” spurning the Ninth and Tenth Amendments (p. 9, and Chap. 6), and since then, in its more arcane but no less important administrative law rulings aggressively expanding its supervision of the nation's federal regulatory agencies (Chap. 3), the Court has drawn virtually all power into its impetuous vortex.
Garry's restatement of formalist arguments holding federalism and the separation of powers as the chief safeguards for liberty (as opposed to judicial enforcement of the Bill of Rights), while evincing a knack for clearly and pithily summarizing complicated constitutional cases and concepts, breaks no new ground—in fairness, in its reiteration of a familiar, formalist reading of Publius's Founding, it does not intend to. Garry includes a chapter praising the Rehnquist Court's efforts to reinvigorate federalism through a revival of the Tenth and Eleventh amendments, but laments its failure to roll back the rights revolution, which will rouse those who share his understandings and hold out hope for similar, but more successful, efforts in the future. His most interesting and original argument is that, well-known precedents professing judicial deference to administrative agency expertise notwithstanding (like Chevron v. NRDC [1984]), courts, through subtle manipulations of doctrine, have assumed a greater policymaking role in matters of administration, following the turn to delegation during the New Deal.
That relatively airy excursion aside, the insularity of the room Garry dwells in is palpable. His claim that liberty is best (and most democratically) protected by states and localities is not so much argued as fabricated from a string of credentialed assertions. This book relies mostly on citations to (often polemical) assertions by conservative law professors (and Clarence Thomas dissents). When he needs to hunt down historical facts, Garry usually refers to credentialed conservatives, when more apt sources would better serve (the author's go-to source on the New Deal, for instance, is Forrest McDonald, the New Deal being a subject distant from McDonald's expertise). He walls himself off from major scholarship on topics central to the thesis, like Edward A. Purcell, Jr.'s Originalism, Federalism, and the American Constitutional Enterprise: An Historical Inquiry (2007)—though whether this is because Purcell is not a conservative, or because Garry's ken is intellectually circumscribed by his status as a law professor, is uncertain. Despite his preoccupation with the past, Garry, at key points, reveals himself to be a prisoner of the present, with his understanding of the Founders borrowed more from contemporary movement politics than from the vaunted eighteenth century (e.g., he asserts confidently—but wrongly—that the Framers feared judicial encroachment on the legislative sphere more than any other breach of separation of powers).
Garry's hermetical relationship with history is most apparent in the book's (nontreatment of Civil Rights, which assumes the status of this close room's resident elephant. In an arresting elision for a book whose ostensible topic is the relationship between constitutional federalism and the protection of rights, The author leaps in a single bound from the Founding to the New Deal, leaving out almost entirely—save for one brief, base-touching bend near the end—the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments. (The elision is all the more problematic when one recognizes that the other ostensible subject of the book, the rise of a powerful, rights-enforcing federal judiciary, which he claims as a New Deal legacy, began with the late–nineteenth- and early-twentieth-century Court's aggressive wielding of the Fourteenth Amendment). If one wants to understand the drawbacks of legal formalism in the way that Brandeis and other Progressives did, one need look no further than Garry's claim that “one of the benefits of federalism is that people of different views can gather in different states with different policies and priorities” (pp. 28–9). Thus, presumably, The Great Migration?
To be sure, Garry appends a three-paragraph section euphemistically entitled “The Inaccurate Association of Federalism with Unpopular Politics”—by which he means slavery, states rights, and segregation (p. 89). In these three paragraphs, and the four devoted to desegregation, he insists that the association has been made by federalism's enemies. When something bad comes out of constitutional federalism (as it has existed in the actual world of US constitutional history from the Founding forward), it is, by definition not federalism—because (as an abstraction, and by definition) federalism is always right, and good. Garry's formalism and commitment to abstraction is additionally evident in his treatment of the constitutional right to privacy, which, he argues, is best protected at the state level because, unlike matters of race(!) or religion, it involves universally shared interests. This might be true if the modern constitutional privacy right were really about privacy, in some abstract sense. But, in fact, that right is actually about sexual and reproductive autonomy, in matters such as abortion and gay rights. If we look beyond the word to what is actually happening, then, whatever the virtues and drawbacks of that right, its regulatory incidence is far from universal.
It must be noted that all the differences I have noted notwithstanding, Brandeis and Garry, at least on paper, share some remarkable commonalities that would not be apparent if we got our Brandeis exclusively from Berk (since his focus is on Brandeis and the FTC, rather than Brandeis more generally). Both Brandeis and Garry are vocally committed to federalism and its attendant localism—on democracy and civic republican grounds. Both authors have strong antistatist, antibureaucracy streaks. And both are staunch proponents of judicial restraint. Moreover, both Brandeis and Garry revere the Founders, and, in this regard, look to the Constitution—the eighteenth-century Constitution—as a touchstone.
I am not sure what to make of all this. While their commitment to abstract principles is remarkably similar, their sensibilities diverge radically. Principles notwithstanding, Brandeis's sensibilities would have in time, I think, led him toward a more centralist, bureaucratist, technocratic, judicially activist posture, though perhaps (like Justice Stephen Breyer, a Brandeis devotee), the story he would have told about himself under these circumstances is that he remained a tribune of decentralization, democracy, and civic participation—updated for new conditions. While Garry's formalism evinces an almost willed amnesia, Brandeis's penchant for pragmatism and experimentalism lead us to suspect that his interpretation of his fidelity to his professed principles might, as time goes on, prove disturbingly creative. Commonalities of principle aside, Brandeis and Garry have no choice but to translate an eighteenth-century past into a twenty-first century present, ideationally and institutionally, through a process of selective remembering and forgetting, that is, through ideology and interpretation. In the end, as Berk's constructivism suggests, our assessment about the relationship between ideas and institutions may indeed be all (or largely) about the story.
