"A definitive account of the American state"Princeton Press

Earlier this month, Gary Gerstle delivered his Inaugural Lecture as Paul Mellon Professor of American History at Cambridge. Speaking of his most recent book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present, Dr Lawrence Klein, Chair of the Faculty of History, described the project in his introduction as "as close as historians are ever going to get to a definitive account of the American state".

On the event of Quentin Skinner’s Inaugural Lecture as Regius Professor of Modern History in 1997, ‘Liberty before Liberalism,’ the London Review of Books commented that he had succeeded to do what the Inaugural posed "a special opportunity to do": "raise fundamental questions about the character and purpose of his subject". If this is the standard to be met, then Gerstle’s address on that self-same subject of Liberty, now in modern American rather than early modern European context, was successful; culminating in not only questions but a damning indictment of the state of American politics today, where those opposing impulses of Liberty and Coercion have finally produced a stalemate.  

For Gerstle, "a preoccupation with liberty runs like a red thread throughout all of American history". From Patrick Henry’s famous speech at the 1775 Virginia Convention - "Give me liberty, or give me death" - to the New Hampshire decision in the 1970s to force all non-commercial license plates to include the phrase "Live Free or Die". Liberty, in the American vocabulary, means small government. A central state that stays out of citizens’ everyday lives and individual rights that this same state cannot touch, values that were enshrined in the 1787 Constitution and stand firm in America today.

This is a picture of the American state we will be familiar with. A country centered on individualism, formed as a democratic republic in opposition to the monarchies of Europe. And to ensure that monarchies were banished from American soil for good, the Constitution separated American government into three branches at the highest level - the President, Supreme Court and Congress - who would check and balance each other’s actions to prevent any element of central power from growing to strong. This is what Gerstle calls the American "creation story", where "from fragile beginnings" this new, democratic nation became a "beacon for the world".

What this liberty-led creation story misses out, however, is the extremely illiberal power that was exercised by individual states. While the Constitution had "carefully enumerated and fragmented" the central government’s power, states could engage in "precisely the kinds of coercion" that the central branches were barred from. Moreover, Gerstle argues that "in behaving in this coercive manner states were perfectly within their rights". To justify coercion, state constitutions drew on the obscure 18th century doctrine of "police power". Police power, in stark contrast to the idea of liberty that had developed in opposition to monarchy, was a power that British monarchs had claimed for themselves. It was the discretionary power of a ruler to do what they deemed necessary to look after the wellbeing of their subjects. According to Gerstle, it was this power that allowed individual states to strip African Americans of their legal rights in the wake of Reconstruction, and again the in 1950s and 1960s to deny them access to residential areas and commercial establishments. Police power was, obviously, illiberal. However, Americans could reconcile its use with an anti-monarchical "creation story" by pointing to the fundamental differences between state legislatures and the British crown. One expressed the "democratic will of the people", the other, the whims of whomever so happened to be King.

This leads to what, as Gerstle sees it, is the fundamental question driving forward American history - the question of how the central government, with its hands tied by a liberal constitution, could control the nearly unlimited power of the states. For example, in forcing them to respect the rights of African Americans. The simplest answer seems to be the passage of a constitutional amendment to expand central power. Constitutional amendments, however, were nearly impossible to pass, with only 27 occurring in the history of America and 15 of those in times of acute emergency.

The answer the central state chose, then, was to improvise. And to do so "brilliantly". The most effective method of improvisation is what Gerstle deems "surrogacy", which involved using powers explicitly granted by the Constitution for other political ends. For example, using their explicit power to supervise mail to ban the post office from delivering pornographic material. The most important Constitutional power for surrogacy was the clause allowing central regulation of commerce between states. In 1942, the Supreme Court expanded the definition of "interstate commerce" to include all commercial action, even if it remained within state borders. The 1940s Supreme Court was thus "intent on turning the commerce clause into a surrogate national police power". A police power previously reserved only for the states.

The use of the commerce clause to justify a strong central government culminated in the Supreme Court’s defence of the 1964 Civil Rights Act, the landmark legislation finally outlawing racial discrimination in the United States. The challenge to this Act came from Ollie’s Barbeque, a small family-owned restaurant in Alabama who refused to serve African American customers. The Supreme Court ruled against Ollie’s, but they did so using the commerce clause.

This was effective: it produced a unanimous Supreme Court decision, lent the Civil Rights Act constitutional authority and upheld its validity.

However, it came at a cost. Using a clause intended to regulate inter-state commerce to promote civil rights was seen by many on the right of American politics to "stretch the meaning of the constitution too far". And in this argument, Gerstle concedes, "conservatives had a point". This tactic of "surrogacy", while useful, left the "liberal state vulnerable to charges of illegitimacy", and these charges continue to be made today against large federal programmes such as ObamaCare.

In fact, according to Gerstle, this legitimacy gap has "paralysed the central state" in modern America. Faced with the option of following an 18th century constitution that cannot "speak to modern problems" or pursuing constitutional strategy that leaves its actions open to criticism, the American government is stuck.

Some argue this means the constitution has succeeded, limiting the central government from interfering in areas it does not belong. To a liberal like Gerstle, it has simply sapped life from important legislation that modern conditions require but the 18th century authors of the constitution did not anticipate. We see this legitimacy crisis playing out today in federal paralysis over issues from healthcare to gun control. It underlines Obama’s dire record on domestic legislation in his second term, and will most likely continue to mire American politics in decades to come.

Like Skinner, then, Gerstle’s Inaugural Lecture raises some "fundamental questions" about the practice of American history. Questions that, in the future, would be most convincingly answered by a history that speaks to the apparently insoluble paradox Gerstle has identified in American politics. This is not a question that can be easily answered, but in raising it, we can understand Lawrence Klein’s introduction of Gerstle as "among the most outstanding historians of the United States writing in the world today".