The following essay elaborates the proposition that changing work relations has been a major problematic of American constitutional development. By work relations I refer to the hiring and firing, compensation, and discipline, of persons assigned to perform designated tasks in public and private settings. By “problematic” I have in mind cause and project, dynamic and rationale, of constitutional duration and change. By “constitutional development” I mean the authoritative reordering of government institutions or of the transactions between government and society.

Payroll taxes and payroll deductions became ubiquitous in the United States by the mid-1940s, crucial to the financing of the emerging “mixed” welfare state as well as World War II. While scholars have firmly established the importance of elements of the warfare/welfare state such as Social Security, employer-based pensions and health insurance, and the mass income tax, voluntary sector institutions have garnered less attention. The history of payroll deduction demonstrates how this “infrastructural power” also advantaged institutions outside of the state, notably, charitable fundraising organizations commonly known as Community Chests (the forerunners of the United Way). Chests began to look toward the payroll deduction in the 1920s as an efficient and effective way of extracting donations from workers of modest means—though these were often fiercely resisted by an empowered labor movement in the 1930s. But it took the state's vast expansion of deductions during World War II, and the patriotic impulse of donating to war-related charities, to convince industrial unions and employers to support this method of donation. Like the income tax, this change in charitable giving remained in place after the war and became a vital element of financing this part of the public–private social safety net—a crucial boost to the voluntary sector from the state.

This article uses a political developmental approach to examine African American poll-tax registration and voting in Virginia from 1940 to 1954. Using the concept of multiple orders, the article traces how changes in the state's political system of managed race relations created an opening for African American political mobilization. The Virginia Voters League (VVL), in alliance with other African American political, civic, and social organizations, conducted voter education and poll-tax payment campaigns in order foster political efficacy among the state's disenfranchised black voters. The VVL met with mixed success, affected by past political mobilizations, the impact of NAACP mobilization, and local and statewide political competition between the state's main political machine and insurgents. The VVL campaign was successful in achieving short-term victories, including the election of a few African Americans to local office. By 1954, the VVL's internal weakness coupled with the emergence of “massive resistance” stymied further black electoral mobilization through politics and made protest a more viable option for achieving political and civil rights for black Virginians. By tracing the path from politics to protest, this article shows how a political developmental approach can be successfully used to develop a nuanced understanding of the emergence of the civil rights movement and Southern politics in the pre–Brown v. Board of Education era.

As the United States industrialized, its state constitutions began to include protections for laborers. In this article, I describe the origins of these constitutional provisions and ask why labor organizations and other reformers pursued their inclusion in state constitutions. I argue that they saw state constitutions as a vehicle to prompt reluctant legislatures to pass protective statutes, to entrench existing protections against future legislatures, to safeguard labor legislation from constitutional challenges in state courts, and to facilitate further union organizing. Labor activism in this arena is particularly interesting in light of the literature on constitutional change, which contends that constitutional development is a tool through which actors attempt to usher courts into political conflicts; in contrast, I will argue that unions turned to constitutional change in large part to exclude courts from policymaking. Further, the union activism on behalf of constitutional change serves as a challenge to the prominent view among many scholars of American political development and law that judicial hostility to worker rights and union organizing discouraged unions from demanding state protection or institutionalizing their demands through law.

On 1 June 1779, Thomas Jefferson became the second governor of the state of Virginia. Shortly thereafter, he was elected to the Board of Visitors of the College of William and Mary where he pursued a series of educational innovations that he had unsuccessfully promoted earlier while engaged in his mammoth revision of the laws of Viriginia. The goal of Jefferson's proposed educational reforms was the creation of an educational system which would be a training ground for republican citizenship. It is therefore of interest that among the innovations he pressed on the College of William and Mary was the establishment of the first chair of law in North America—indeed the first chair anywhere after the Vinerian chair at Oxford. What is of greater interest, however, is that the chair that Jefferson pioneered was not a chair of law, as such, but a chair of “Law and Police.”

For a long time the question of whether the framers of the U.S. Constitution intended to establish judicial review of legislation was the subject of extensive and repeated investigation. The issue, however, was never definitively resolved, a consequence, it is widely agreed, of ambiguities and internal contradictions in the early record. More recently, interest in this basic question has declined, and it has simply been assumed that some form of judicial review was contemplated by the framers. At the same time support for the practice has deepened, and the debate, although still heated, has shifted to different grounds.

In the course of the debates over the ratification of the U.S. Constitution, no one disputed that the people were sovereign, but how this sovereignty was to be embodied proved quite controversial. The post-Revolutionary generation faced the challenge of creating a republican form of government from an oppositional popular politics. Federalists responded by claiming for their Constitution, and for the national government it created, a monopoly on the legitimate representation of the people. They championed the official over the popular and invoked the idea of the nation to authorize this transfer of authority. It was a transfer that would not go unchallenged, and, as a result, the constitutional politics of the early republic repeatedly posed the question of whether popular sovereignty could survive the transformation of the demos into a nation.

Conventional wisdom states that where ideas and values have mattered in American political life they have usually been the product of a single, overarching political culture. The United States, it is argued, has had political conflict but not ideological conflict. Perhaps nowhere is this premise more noticeable than in the study of political parties. According to Du-verger, “[T]he two parties are rival teams, one occupying office, the other seeking to dislodge it. It is a struggle between the ins and the outs, which never becomes fanatical, and creates no deep cleavage in the country.” Everett Carll Ladd writes, “[T]he need to seek support within an overarching ideological consensus, has historically imposed certain characteristics on the major American parties – social group inclusiveness, accommodationism, a ‘non-ideological’ stance vis-a-vis their principal opponents (which, after all, accept the same ideology).”

Can the U.S. Congress address major challenges? Can Congress govern? Questions like these keep getting asked. This article addresses them by consulting the record since 1789. Given the separation-of-powers structure of the American system, such questions cannot be addressed directly. They need to be deconstructed. The presidency needs to enter the discussion, too. Also, what is a major challenge? To identify such challenges, and to supply a way of seeing how and in what respects Congress, as well as in a background frame the U.S. system more broadly, has performed, I draw on comparative analysis. How has the United States participated in thirteen major “impulses” that have invested a comparable set of nations at various times since the late eighteenth century? These challenges range from launching a new nation through building a welfare state through dealing with climate change and debt/deficit problems today.

There are a number of theories which argue that repression can help to explain why no labor party was established in the United States. These theories fall into two groups. In one group are versions of the soft repression thesis. In the other are versions of the hard repression thesis. These two theses contradict each other in basic respects.

War has probably been the single most important influence on the development of central state authority in the United States. Although the state-centered mobilization of economic resources and manpower that accompanies military conflict is commonly conceded to have had this effect throughout American history, the centralizing influence of the Civil War on the southern Confederate government has not been accorded the precedent-setting importance it deserves. The consolidation of economic and social controls within the central government of the Confederacy was in fact so extensive that it calls into question standard interpretations of southern opposition to the expansion of federal power in both the antebellum and post-Reconstruction periods. Southern reluctance to expand federal power in those periods has been attributed variously to regional sympathy for laissez-faire principles, the “precapitalist” cultural origins of the plantation elite, and a general philosophical orientation hostile to state development.

These quotes point to a puzzle, the puzzle with which this study begins: Within the past forty years, national member-states not only accepted the interpretive authority of the European Court of Justice (ECJ) as the supreme decision maker for conflicts between member-state authority and central federal authority of the European Community (since 1994, the European Union) but also accepted this court's dictates that the treaties forming the community had constitutional status as supreme law in every member state and that European-level law had higher law status within every member state, superseding any national law to the contrary. Indeed, European member-state acceptance of this development advanced much more rapidly than state acceptance of the U.S. Supreme Court in its first several decades. Yet this pattern of respective acceptance of central federal authority runs counter to prevailing understandings of sovereignty.

Between 1968 and 1972, with political conflict in America unusually high, major changes were made in rules for consituting Democratic national conventions and selecting Democratic candidates. Basic issues about the practical meaning of democratic commitments were sharply contested, and debates about party organization proved vigorous and substantial. The reforms enacted aimed partly to enhance participation and restore public respect for political life. They did not escape criticism. In fact, critics of reform became the dominant voice in subsequent discussion of what happened to the Democratic party and to party politics in the United States more generally.

I will begin this essay with a fugitive slave case in my home state of California, Ex parte Archy, decided by the state Supreme Court in 1858.9 Cal. 147 (1858). A full narrative of the case is in Paul Finkel man, “The Law of Slavery and Freedom in California, 1848–1860,” California Western Law Review 17 (1981): 437–464. While he lived in Mississippi, Archy (Lee), nineteen years old, was the slave of a man named Charle s Stovall. In 1857, Stovall brought Archy with him to California on a visit for health reasons, planning to stay no more than eighteen months. Having sold his wagon and team before crossing the Sierras, Stovall bought a farm, moved to Sacramento, and open ed a school. He hired Archy out to another man, but after a few weeks, when the slave became ill, he put him on a river steamer to San Francisco with the intention of shipping him back to Mississippi in the custody of an agent. Archy escaped.

Both political scientists and popular commentators have reacted to the culture wars of the 1990s as something new in American politics, a deviation from the durable grounding of politics in economic interests. However, as recent work, along with many of the classic treatments of the Populist and Progressive eras demonstrate, American politics has long been infused with both culture and economics. The interesting question is thus not “which one” but rather “how” these two dimensions of political value have intersected through time and what the dynamics of those intersections reveal. The paper uses congressional family policy debates to demonstrate two alternative policy frameworks during the Progressive Era, each with its own alignment of the two dimensions and one emerging as a harbinger to the New Deal welfare state. Through systematic discursive analysis of committee hearings transcripts of the Fifty-sixth to Sixty-sixth Congresses, it assembles two dominant conceptual frameworks of family as illustrative of the two approaches. The progressive understanding viewed family economics as foundational, circumscribing its cultural qualities and legitimating state intervention. In contrast, the traditionalist conception privileged self-regulating families' cultural qualities as more fundamental, only loosely related to economic condition, such that active state intervention into family economics was seen as inappropriate and ineffective. These alternative approaches to state and family relations viewed culture or economics alternatively as foundational or epiphenomenal, if related at all. As history unfolded, the progressive conception ultimately prevailed in New Deal and postwar social policies, which continued to emphasize the economic dimension as subsuming the cultural one. Investigating the dynamics of intersectionality between economics and culture is suggested as a potential pathway to bridge work emphasizing durable economic interests in politics with other work focused instead on the endurance of moral conflicts in political deliberations, implying that in the Progressive Era the parties were not only divided in terms of which set of issues were more important but also over how the two dimensions of political value related to each other, if at all.

In 1884, a committee of dissenting bondholders for the Wabash, St. Louis and Pacific Railway entered a federal district court in Illinois to complain that St. Louis Federal Judge David Brewer had, at the request of the notorious robber baron, Jay Gould, thrown the road into receivership prior to default. Judge Walter Gresham (whom the Populists would try to recruit for their 1892 presidential candidate) listened sympathetically and put the eastern division of the road into a separate receivership. For the time being, a key link, in Gould's national system was broken in two. Soon, however, the courts and bondholders capitulated, and Gould succeeded, at the expense of the sanctity of property and contract, in revolutionizing the corporate doctrine of receiverships to assimilate huge national systems.

John Gerring's call for greater methodological self-consciousness and rigor in APD scholarship is valuable in several ways. Although some APD scholars deploy formal models and statistical analyses of large n data sets, many do not. Today, those choices inevitably raise questions of the rigor of such work. Gerring's essay usefully pushes us to provide answers. I also generally agree with his sense of what appropriate methods involve. The fact that his recommendations are fairly standard and noncontroversial then poses the further issue Steve Skowronek stresses: whether there is any distinctive method or substance that defines APD scholarship as a field.

Louis Hartz asked some very important questions in The Liberal Tradition in America. One that seems especially relevant in the aftermath of invasions of Afghanistan and Iraq, and to which I will point only briefly, concerns America's relationship with the rest of the world. Hartz wrote that America's “messianism is the polar counterpart of its isolationism,” and that it had “hampered insight abroad and heightened anxiety at home.” He contended that America had difficulty communicating with the rest of the world because the American liberal creed, even in its Alger form, “is obviously not a theory which other peoples can easily appropriate or understand,” and that absence of the experience of social revolution in America's history lies at the heart of our inability to understand how to lead others. Henry Kissinger contends that, in a post-cold war era, American exceptionalism with its rejection of history, extolling “the image of a universal man living by universal maxims, regardless of the past, of geography, or of other immutable circumstances,” is a kind of innocence ill-suited to successful diplomacy in the emerging world order. We talk a great deal about bringing freedom, democracy, and self-determination to the Middle East, but this hardly seems an apt description of what is happening on the ground. Do we have anything to teach? Hartz, who was quite skeptical about our ability to export the American liberal tradition, might still have something useful to say about our interactions abroad, even in a post-cold war world.

This article proposes a new explanation for the origins of entrenched judicial review, or judicial review supported by supermajority constitutional amendment requirements. The explanation is based on ex ante levels of economic inequality: Where economic inequality is higher, economic elites have more to lose from the advent of majority rule. These elites will have both greater incentives and greater ability to resist or check institutions responsive to popular majorities. We may then be more likely to see the adoption of less democratically responsive institutions, like entrenched judicial review, where more unequal wealth and income distributions are threatened by majority rule. The theory is consistent with the qualitative historical record from several former British colonies, including that of the United States. It also finds considerable support in an econometric analysis of the presence of entrenched judicial review in the first year of continuous democracy for those former European colonies that had become democracies by 2008, where pre-independence European mortality rates are used as a proxy for pre-independence economic inequality. These findings suggest that the adoption of entrenched judicial review in democracies may have been motivated at least in part because of its anticipated protection for higher levels of economic inequality.

This article argues that the Populist legacy is embodied by the constrained conception of democracy underlying the American state, which restricts popular sovereignty from the economic sphere. Charles Macune led the Farmers’ Alliance according to a robust conception of democracy that insisted on subordinating economic law to popular sovereignty. Macune's distinct economic thought marked a departure from previous antimonopoly movements, but his reliance on an inductive, empirical, institutionalist economic methodology was shared by the founders of the American Economic Association. Populism did not fail because it relied on outdated economic theory; it was defeated because it represented a coherent and credible threat to the established order. A successful campaign established the hegemony of the deductive method, which posited that manmade laws must serve the natural, universally valid laws of economics and that popular sovereignty must therefore be restrained from the economic realm. Without the means to conceive an alternative relationship between the state and economy, the path of twentieth-century American political development has been limited to those possibilities available under a constrained conception of democracy. This article articulates Macune's political strategy and highlights its underlying principles in order to present a more robust conception of democracy and illustrate the mechanisms by which it was defeated.