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Book Review
| Laura Jensen, Patriots, Settlers, and the Origins of American Social Policy, Cambridge: Cambridge University Press, 2003. Pp. 256. $60 cloth (ISBN 0-521-81883-4).
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| Laura Jensen's Patriots, Settlers, and the Origins of American Social Policy presents an argument both finely wrought and provocative. According to Jensen, the nineteenth-century turn in American social policy towards selective "programmatic entitlements"—statutory grants of benefits to certain groups or "rights tied to reasons"—was a powerful form of "nation building" (8, 25, 35). Focusing on federal military pensions and public land grants, Jensen argues that the dispensation of benefits by way of categorical statutory provisions provided an avenue for "reconstructive assaults on the nation's original decentralized institutional order" (225). The device defined an American conception of citizenship with moral content and notions of desert; it connected federal legislators and constituents without mediation of state or local actors; it mobilized settlers and legitimated expansion at the national level; it defined federal authority as a dispenser of money and benefits as well as a source of social welfare; and it elaborated the administrative and fiscal structures necessary to implement its mandates. More than that, programmatic entitlement as a policy approach promoted and rewarded a discourse of "interests," of competing claims on the bases of categorical differences. In that sense, however, the strategy of programmatic entitlement so powerfully deployed by the federal government also became a limitation in the communal practice and imagination; it rendered a "universalist" conception of social welfare rooted in egalitarian notions of citizenship less possible in the American context. Indeed, it has even facilitated, Jensen suggests, the current disenfranchisement of groups as the liberality of our "selective" approach to welfare ebbs (236). |
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Laura Jensen's account is rich at both substantive and methodological levels. As a matter of substance, Jensen persuasively recovers an early history for the federal administrative state. Eschewing the standing convention that significant welfare legislation begins with the Civil War state, Jensen roots pension legislation following the War of 1812 in the even older American tradition of legislative adjudication of claims and petitions. The imperatives of demand on the large scale of a national republic turned Congress to categorical solutions, producing a drumbeat of programmatic entitlements: benefits in 1818 to disabled and impoverished veterans of the Continental Army, followed by acts in 1828, 1832, and 1836, granting funds to Revolutionary officers, to noncommissioned officers and soldiers, to their widows and children—a pattern of generosity that would be repeated after the Civil War. Then comes the complex distribution of the public domain, a protracted policy struggle that posed exclusionary approaches, including selective land grants to veterans and special preemption rights (like the remarkable Armed Occupation Act's grants for men willing to defend land against "marauding" tribes in Florida) against more expansive initiatives, including the generous preemption acts of the 1830s and 1840s through the 1862 national Homestead Act that made 160 acres of public land available to white adult citizens willing to improve it (204 n.103). |
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Jensen succeeds in establishing the quantitative importance of the statutory entitlements she identifies (for example, federal pension benefits remarkably constituted almost 20 percent of national outlays in the mid-1830s [118]; federal land grants carved up and disbursed the national territory). But she also persuades us that the form in which such benefits were dispensed mattered. The decision to channel federal resources through categorical grants generated a competition for inclusion and debate over particular claims to desert; federal resources became a medium of reward rather than a common wealth. The soldier and the settler, and those who had been loyal in the long-term, gain iconic status. The morality tales that result validate the professionalization of the army, white national expansion, and punishment of the South and its inhabitants. Throughout, Jensen beautifully contextualizes her account, capturing forces like sectionalism and tragedies like the destruction of Native American community as part of the American process. |
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Patriots, Settlers innovates on the methodological level as well; this work will help to rejuvenate institutional approaches to law and history. Jensen's argument locates the enormous importance that patterns of authority exert as practices in a changing world. By tracing the forms in which power travels and is justified, she makes institutional history both tactile and expressive, indeed inescapable. So conceived, institutional forces are rendered as visible and as significant as other currents, including the social, political, cultural, and ideological, in regimes of human relation. |
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The ambition of Jensen's argument does, as it should, raise questions of both substance and method. Given the legal realism of her approach, Jensen would agree that notions like rights, interests, duties, and desert are matters pervasively constructed by law; one does not need an express categorical provision to create a selective group claim. For example, the constitutional order established in 1789 radically empowered federal public creditors relative to state or federal taxpayers, owners of human property relative to slaves and the nonslave-holding, and members of small states relative to large states. Those patterns were rationalized just as pervasively by discursive practices—that monied investors required full payment, that enslavement of some could be tolerated in the balance and for at least a time, that communities defined by region merited distinct representation. That is, they created "rights tied to reasons," including at times rights to monetary benefits. Such a recognition raises the question whether, on the one hand, the turn to "interest" and to claims of entitlement are more deeply rooted in the American constitutional order than Jensen allows. A wider constellation of institutional practice and expression becomes relevant, including the development of a new political economic order that insulated certain modes of investment from political interference, the development of public finance techniques that legitimated claims of interest against the community, the elevation of private law models of "rights" as appropriately leveled against the states, and even the increasing need to reward military service in ways analogous to monetary contribution. Those phenomena, which transformed federal authority, would locate immediate connections between the national government and certain clientele, would ground an "entitlement" terminology long before 1818, and would suggest why the debate after that point focused so quickly on what categories to use rather than whether to use them in statutory benefit provisions. It would reduce the pressure to read an "expansionary logic" (177) into the statutory form while relieving the need to distinguish universalist provisions, since the entitlement form would be bearing a lighter and more complementary load. |
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On the other hand, Jensen's claim remains persuasive that the "programmatic entitlement" tradition powerfully affected the American trajectory. The recognition that categories are formed in myriad ways simply invites her to tell us more about what is distinctive about the nature of the express categorical form and process relative to implicit categorical benefits. What kinds of rights are "structured" in and which are matters of "programmatic entitlement"? Why and with what effect? How do the differences exposed and exacerbated by each kind of provision divide the political community? Are there ways that the transparency of programmatic entitlements has been or could be harnessed? To return to where we started, Jensen's insights on these and other topics would tell us even more about American nation-building. |
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| Christine Desan
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| Harvard Law School |
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