Narratives of postwar American political development are often stories about policy. As the federal government has expanded, a growing number of political historians and historically oriented political scientists have turned their attention to the passage and implementation of major legislative changes. Yet, as Orren and Skowronek’s book suggests, a narrow focus on individual policy histories has blinded scholars to how policy has changed American government, as well as the relationship of policy to the current crisis in political legitimacy.
Policy, Orren and Skowronek argue, is one mode of governance among others. It is a forward-looking commitment to action. Policymakers think like planners: They set goals, devise means, and define standards of performance. A contrasting mode of governance involves rights—claims that an individual may make in a court of law on other “persons or actions” to “[affirm] or [reclaim] something already due” (29–30). As rights are backward-looking, they can also help to establish and preserve constitutional structures that attempt to harness the ambitions of strategic politicians.
Policy and rights differ starkly in their effects. If policy is a prospective attempt to solve problems in “real time,” its commitments cannot be guarantees. Unfaithful agents can manipulate policy toward their ends, and future governing coalitions can decide to reverse decisions. Whereas policies can be modified or overridden once created, rights function as “trumps.” Rights established through common law, contracts, constitutions, or statutes override the preferences of societal actors, even those with governing authority.
Orren and Skowronek do not offer a full history of how policy became the dominant mode of governance. Yet through their creative synthesis of secondary material and legal doctrine, a broad sketch emerges. In the nineteenth century, rights regimes served the interests of powerful members of society, like slaveholders and employers, and locked out political competition. Progressive-era jurists and public intellectuals turned to policy to upend these regimes. In the process, they eroded the distinction between policy and rights. In the words of Oliver Wendell Holmes, rights were necessarily, “limited by the neighborhood of principles of policy which are other than those on which the particular right is founded” (81).
The policy motive did not, however, spring fully formed from the heads of legal positivists. As Orren and Skowronek’s thumbnail sketch of labor-relations history shows, rights-as-trumps proved incapable of managing societal conflicts. Systematically disadvantaged by the law of master and servant, labor unions sought to “cast the workers’ lot with legislation” (62). Yet while the 1935 National Labor Relations Act offered labor unprecedented leverage, it was hardly the ‘trump card’ that master–servant relations law had been for employers. The collective-bargaining rights that it contained did not supersede alternative rights that employers soon began to claim. Nor did they prevent conservative governing coalitions from passing new laws that cabined collective bargaining.
An American Predicament is an apt subtitle for this book. In the policy state, constitutional provisions about federalism and presidential power have transformed from containers of political ambition into an “opportunity structure” that politicians exploit and augment to accomplish their goals. American institutions have also interacted with the logic of policy in unanticipated ways. The proliferation of government research units and private think tanks has turned policy science into a political weapon rather than a tool for problem solving. Along with the intensification of partisan polarization, such developments help to explain dwindling public confidence in government.
The Policy State is more than a penetrating analysis of policy’s effects on American government. Rather, it stands as a powerful social critique. Orren and Skowronek agree that policy has been a powerful tool for challenging rights-as-trumps that secured the preferences of elites. Without it, government could not have adapted to meet the needs of citizens. Yet policy’s own variability has made it an inadequate vehicle for locking in significant societal compromises and legitimating government. Rather than offering specific solutions, The Policy State invites historians, political scientists, and policy analysts alike to sharpen their understanding of how policy emerged as a mode of governance with a particular effect on American politics. In doing so, they may discover how viable alternatives might take shape.