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FORUM: COMMENT


Living without Labels

DANIEL T. RODGERS


Charles Evans Hughes's career ran along the fault lines of most of the major political events of his lifetime. Muckraking catapulted him to fame. He governed New York during four key years of the Progressive era as an effective administrator and earnest reformer. He stayed with the Republican Party when the Progressives bolted in 1912. He ran for the presidency in 1916 but missed the prize, albeit by a narrower electoral college margin than any other contender until the very end of the century. He was instrumental in negotiating the international naval disarmament accords of 1921–22, landmarks of progressive internationalism in their day that fell under sharp criticism a decade later. He presided over the U.S. Supreme Court during the key years of the New Deal, though in most histories of the 1930s Court he comes across as something of an also-ran behind its more memorable shapers: Brandeis, Cardozo, Sutherland, Black, even Roberts. Hard to pin to any achievement or distinct idea, slipping in and out of the dramatic movements of his day, he was the kind of man who makes history but easily falls out of the history books. 1
      James Henretta's insistence that Hughes be taken seriously is important, therefore, not simply for Hughes's reputation but for the class of which he was a type. For all his striking strengths of character—his extraordinary capacity for hard work, his incorruptibility, and his "gimlet mind"—what is most important about him as a man of law and public affairs is his normality. From bar to bench to statehouse, his career, Henretta shows, was from beginning to end one of maneuver. Moments of heroic action cohered with moments of remarkable pliability. A man of deep rectitude, he adjusted his aims by his calculation of votes, both as governor and as chief justice. This is the way normal politics works, and the way in which the law works as well. 2
      To bring Hughes's career into focus, Henretta folds these maneuvers, the continuous movement that law-making entails, into containers of consistent ideological categories. Thus Henretta asserts: "During the Progressive Era Hughes had defined a coherent New Liberal position." He "adopted the intellectual framework of British New Liberals and American sociological jurisprudence." If he allowed, at times, a "subordination of doctrine to his political agenda," he remained, at the core, an advocate " ... of a modest American version of the New Liberalism of Winston Churchill and Lloyd George." Only inadvertently, in an ironic twist of history, did he play a part in opening the door to something starkly different, the regime of "New Deal Statism." 3
      This is a familiar interpretive move in historical and legal analysis, though it is not questioned nearly as often as it should be. Behind the actions of the day-to-day, find the higher ideational consistency. Straighten out the crooks and curlicues of a career by subordinating the raw stuff of maneuver (Hughes's "political agenda") to a more elevated, overarching idea. (Higher) mind is pried apart from (baser) action. Trumping high by low gives us the portrait of a life of crass expedience; the reverse gives us a life of high seriousness. Hughes was, Henretta asserts in this way, a deeply serious figure, all the more so because he played out his convictions at a moment when the reigning idea of the age itself was abruptly changing. 4
      For explanations of this sort to work, however, the ideological positions being advanced need to hold sure, precise traction. Let them skid and slip, and what is advanced as explanation may begin to look like something else: a word game, a post-facto labeling exercise. Take New Liberalism. In British history it is the cover term for the flurry of reform policies that the Liberal Party government put in place between 1906 and 1914: free meals for poor school children, a statutory eight-hour day for miners, pensions for the elderly poor, minimum wage standards for structurally low-wage industries, a national system of sickness and unemployment insurance, new legal immunities for labor unions, and a graduated income tax. In the pre–World War I years, Hughes opposed every one of these. He rejected the Adamson Act's statutory restrictions on railroad employees' working hours; he endorsed none of the plans for social insurance under discussion during his administration in New York; he opposed the federal income tax amendment. The workmen's compensation act he helped push through the New York State legislature was modeled not on New Liberal initiatives but on the British Conservative Party's act of 1897. His deeply felt child labor proposals would have fit unremarkably into late nineteenth-century British social legislation. His powerful conviction that large combinations of capital demanded public regulation was a sentiment he shared with "old Liberal" William Gladstone. In short, if a New Liberal means a person in sympathy with the New Liberal program, Hughes was not even close. 5
      What Henretta means to identify, clearly, is something looser than this: Hughes's sense of the inadequacies of the old, property-rights claims of the past in the face of the new conditions of labor and the new scale of capital organization. For British New Liberals, the "social problem" was most vividly embodied in the economic struggles of the wage earner and the grinding poverty of the slums. For Hughes, the "social problem" loomed largest as a problem of corruption and overweening corporate power. Hughes's preferred means for achieving higher public efficiency—tighter administrative centralization and adjudication by expert commission—were closer to the program of the Fabian Sidney Webb than to the New Liberal program of Herbert Asquith and David Lloyd George. With all of them, however, he shared a common internalized rhetoric of the public good. Like so many others of his day, in short, Hughes was caught up in a discussion of social politics that spanned the Atlantic, spinning off projects and energies everywhere it touched.1 If calling Hughes "not quite a British New Liberal" helps to reveal that larger field of transnational political competition and exchange, it may hold some utility. But in any closer meaning of the term, it falls apart in the very act of trying seriously to employ it. 6
      The same is true of the bright-line ideological distinction Henretta posits between progressive "liberalism" and New Deal "statism." The most enthusiastic American promoters of the new techniques of bureaucratic state management were not FDR's contemporaries but Hughes's: progressives like John R. Commons and Herbert Croly, whose rationale for the efficiency and disinterestedness of the administrative state was never again to be so unconditionally articulated. The New Deal's most sweeping experiment in national economic planning, the NRA, was constructed by taking Woodrow Wilson's mechanism for the management of the World War I economy and recreating it for a peace-time emergency. Managed not by bureaucrats but by businessmen, the NRA was, like so many other pieces of the New Deal, much less centralized, much more open to the shaping hand of its constituencies, than the phrase "national bureaucratic regime" comes close to capturing. Working by improvisation and concession, cycling through a bewilderingly unstable mix of ad hoc agencies, drawing hard on preexisting ideas and state-level precedents, the New Deal was perpetually overextended and underconceptualized: the orderly, nationalist bureaucrat's nightmare. 7
      That is not to say that the rules of the game did not change in the 1930s and even more so (as Alan Brinkley has emphasized) in the 1940s.2 During those decades, progressive-era visions of administrative efficiency fused with the macro-economic ambitions of the New Dealers. What emerged was a vastly more powerful federal state possessed of unprecedented society-shaping ambitions. Many of the progressives who survived into the 1930s, as Otis Graham pointed out years ago, did not care for the result: some because they distrusted FDR's immigrant-beholdened Democratic Party, some because they could not forgive it for the repeal of prohibition, others because they feared the reach of the New Deal state.3 But to translate all this into a clear break between competing ideological systems is not so much to hyperintellectualize the course of history and politics (there was thinking aplenty through all of this, as I will suggest) as to mistake a covering term for an analytical one. "New Liberalism," "progressivism," "statism," "statist, social-welfare liberalism": like Hillaire Belloc's package term, "the servile state," they are labels all. Historians tack them to the messy, contradictory experience of the past. But they never stick. 8
      Can historians of law and politics do better than this? Can they make sense of the past without pinning phrases to it, fighting over their verbal inventions, taking labels off, pinning back new ones? Can we do without demanding this kind of pseudo-coherence from the past? 9
      What would Hughes's career look like without labels? We could start not with Hughes's covering principles but with the kinds of problems Hughes took on, the kinds of social arrangements that seemed to him to call for action and redress. Unlike William Beveridge, who shot into prominence at just about the same time with his work on casual London labor, Hughes was never deeply immersed in the experiences of the laboring poor. He left college for a law career, not a settlement house. Unlike Lloyd George or the Fabians, he betrayed no Henry George influences, no sense that swollen unearned wealth was in itself a social problem. But he did care with great outrage about corporate malfeasance and corruption, just as he was later to care intensely about the project of bringing the rivalries of militarized nations under international agreement and law. His sense of the problem—the way that sense allied him with some of his contemporaries and, at the same time, glanced off the problematics of others—was one of the defining things about his mind and politics. 10
      A second marker is the kind of solution that made intuitive sense to him. Solutions, in this sense, are not devices that spring from problems, though at times they may. They are, rather, answers that allow one to travel from issue to issue with a sense of confidence and resolution. The expert-staffed public regulatory commission was a solution of this sort, an answer with legs that was, from the early progressive years through the New Deal and beyond, capable of application to many different specific circumstances. The regulatory commission caught Hughes's imagination powerfully in his early years. If he later worried through the precise relationship between commissions and courts, trying to draw a clear line between reasonable and unreasonable commission judgments, he never wavered from the core idea. The "market" would do similar work at the end of the twentieth century as a hinge for political alliances, a fulcrum of argument, and a solution with almost boundless reach. 11
      Plotting Hughes's career along yet another axis, one might ask about the legal-political "language" in which he chose to speak. He recoiled from the language of class. He did "not believe in legislating for classes ... and in talking about the working classes or any other classes," he claimed in 1906, just as he was making concessions to the labor vote.4 I do not think that the rhetoric of sentimentality moved him often, as it moved others with whom he cooperated in some of his endeavors, nor FDR's language of solidarity. Asked to speak on the "responsibilities of citizenship" at Yale in 1910, he talked eloquently of public spiritedness, the dignity of public office, and the need for efficiency and dedication in public administration.5 These were axiomatic to Hughes. By pulling them out of the discourses of the time, absorbing them into his own sense of being, he defined the kind of legal-political figure he was. 12
      Above all, he marked himself by his maneuvers. This was, ultimately, what was most normal about him. Of all the considerations that entered into his ever-active mind, none was more acute than his subtle sense of the location of the middle ground. In his battle with William Randolph Hearst in 1906, he conceded just enough to working-class New York voters to win election, but no more than that required. When in the 1920s energy seeped out of the social-political projects of those who called themselves progressives, Hughes picked out the new coordinates and adjusted himself accordingly. As secretary of state, he drew as centrist a line as he imagined possible between intervention and non-intervention in the Caribbean nations. Trying to have it both ways, he was accused of hypocrisy. Henretta makes much the same judgment in his treatment of Hughes's role on the Court in 1936–38. Hughes's efforts to defuse the court-packing crisis, he writes, led him to the "subordination of doctrine to his political agenda." Low calculation, one understands him to say, tripped up high mindedness. 13
      That Hughes changed his mind in Helvering I take as given. Changing one's mind can be a mark of wisdom for everyone except judges, where it is taken to clinch the case for mindlessness. But what if an ultimate commitment to the center, to the position of centrist balance and impartiality that he called public spiritedness, was as much "doctrine" to Hughes as any specific points of law? What if the pattern of his maneuvers was recognized as just as deliberate a part of his thinking self as any of his specific endorsements? 14
      A characteristic sense of the problematic, a repertoire of favored solutions, employment of a distinctive persuasive language, a sense of one's proper location on the shifting field of play: these get us closer to figures like Hughes than do overarching terms that, like coveralls, don't really fit. Where Henretta's portrait brings these to life, this legal-political career comes into vivid relief. He was "ever a man of the middle," Henretta writes. But if such a man needs to be continuously aware of the shifting locations of the political edges, so must we. Taken out of context, straightened on a procrustean bed of abstractions, pinned down by post-facto labels, the thinking element in careers like this eludes us. Living without labels would serve us better. 15


Daniel T. Rodgers is the Henry Charles Lea Professor of History at Princeton University <drodgers@princeton.edu>.


Notes

1. Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Harvard University Press, 1998).

2. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995).

3. Otis L. Graham, Jr., An Encore for Reform: The Old Progressives and the New Deal (New York: Oxford University Press, 1967).

4. Robert F. Wesser, Charles Evans Hughes: Politics and Reform in New York, 1905–1910 (Ithaca: Cornell University Press, 1967), 92–93.

5. Charles Evans Hughes, Conditions of Progress in Democratic Government (New Haven: Yale University Press, 1910).

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