One of the key principles of the modern legal state (Rechtsstaat) is the right of all citizens to seek judicial protection against unlawful acts of government officials. It stems from the fundamental principle of the rule of law that asserts that all citizens, including state officials, are equal before the law and have the right to a fair trial. Within this legal framework a distinct field of law, “administrative justice,” governs public litigation against state officials. Its domain of jurisdiction reflects complex philosophical and legal distinctions between the public and private spheres in the modern state. As legal scholars and philosophers continuously redefine the boundary between the public and private spheres, the prerogatives of government officials over the rights of private citizens continue to evolve. The key questions in the debate are as follows. Should the state guarantee an undisputed precedence of citizens’ rights over administration or should it protect its officials from widespread litigation and therefore grant them a certain degree of immunity? Should ordinary courts and laws decide disputes between government officials and private individuals, or should the state provide separate norms, judges, and procedures for administrative litigation? Should punishment for misuse of administrative power be equal to that of the breach of civil or criminal laws? Who and to what extent should be made liable for any damages incurred through misuse of administrative power?

Between 1936 and 1939, American workers staged some 583 sit-down strikes of at least one day's duration. In the latter year, the United States Supreme Court issued its opinion in NLRB v. Fansteel Metallurgical Corporation, resolving the official legal status of the tactic. Fansteel made it clear not only that a state could punish sit-downers for violating trespass laws, but also that an employer could lawfully discharge them—even if that employer had itself provoked the sit-down by committing unfair labor practices in violation of the National Labor Relations Act.

“Liberalism! Not in all history has a word been so wrenched away from its true meaning and dragged through the gutter of defilement,” the Wilsonian Progressive George Creel protested angrily in a memoir of 1947: “Where it once stood for the dignity of man, … it now stands for the obliteration of individualism at the lands of a ruthless, all-powerful state.” For nearly fifty years, most scholars have given little heed to the rage vented by Creel and other critics of New Deal “liberalism.” Amidst the expansion of the American welfare state, the outlook and ideas of the anti-New Dealers seemed at best naively outdated and at worst positively pernicious. History—in the form of an increasingly massive, paternalist, neo-mercantilist, bureaucratic state—seemed to be firmly on the side of those who advocated the expansion of federal authority over more aspects of American life.

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.

Reports of the Strange Death of Liberal America are greatly exaggerated. James Henretta's essay of that title offers a shrewd and insightful portrait of Charles Evans Hughes. But the liberalism whose death Henretta reports did not die. And the “statist,” “centralization,” “economic planning,” and broad “social insurance” minded liberalism he reports as prevailing did not prevail. From a certain lofty altitude (and rueful attitude), all “big,” “modern” “welfare states” look the same. That is Henretta's viewpoint. His wonderfully suggestive comparative framework has as one of its premises that America and England proceeded along the administrative-and-welfare-state-building path at different paces but arrived at the same destination. For me, a comparison of the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England prompts different conclusions. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by that ambivalent (and lawyerly) brand of American liberalism Henretta rightly attributes to figures such as Hughes and Roscoe Pound—poised between “progressive” commitments to social reform, social provision, and administrative-state-building, on the one hand, and older, “classical” liberal commitments to limited (and decentralized, dual federalist) government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. My notion is that this “transitional” and “forgotten” liberalism and its champions won more important battles than they lost against their “statist” rivals. A “strange death,” indeed!

James Henretta's “Charles Evans Hughes and the Strange Death of Liberal America” takes up one of the most interesting and important interpretive questions in the history of American political economy. What explains the dramatic transformation in liberal ideology and governance between 1877 and 1937 that carried the United States from laissez-faire constitutionalism to New Deal statism, from classical liberalism to democratic social-welfarism? That question has preoccupied legions of historians, political-economists, and legal scholars (as well as politicians and ideologues) at least since Hughes himself opened the October 1935 Term of the U.S. Supreme Court in a brand new building and amid a rising chorus of constitutional criticism. Henretta, wisely in my opinion, looks to law, particularly public law, for new insights into that great transformation. But, of course, the challenge in using legal history to answer such a question is the enormous increase in the actual policy output of courts, legislatures, and administrative agencies in this period. Trying to synthesize the complex changes in “law-in-action” in the fiercely contested forums of turn-of-the-century America sometimes seems the historical-sociological equivalent of attempting to empty the sea with a slotted spoon. Like any good social scientist, Henretta responds to the impossibility of surveying the whole by taking a sample. Through a case-study of the ideas, political reforms, and legal opinions of Charles Evans Hughes, particularly as governor of New York and associate and chief justice of the U.S. Supreme Court, Henretta offers us in microcosm the story of the revolution (or rather several revolutions) in modern American governance.

In 1940, in the inaugural issue of its Bill of Rights Review, the American Bar Association's Bill of Rights Committee expressed its conviction “that a distinct field of law—that of civil rights—[was] emerging.” From the standpoint of lawyers, judges, and scholars looking forward from that moment, the contours of the new field were largely unknown. In large part, that uncertainty was due to the Supreme Court's dismantling of the dominant doctrinal framework governing the relationship between individuals and the state in the 1930s.

Forums are not for the faint of heart. My critics offer a searching analysis of my approach and arguments. William Novak questions the basic assumptions and methods of my article; indeed, he dismisses it out of hand as a well-known “traditional” story told in an equally traditional “narrative” fashion. Somewhat more graciously, Daniel Rodgers contests the validity of some of its arguments; more fundamentally, he disputes the legitimacy—at least for a “normal” political actor such as Charles Evans Hughes—of an ideological frame of reference. Just tell the (traditional) story, he says; come to grips with the man and forget the labels. For his part, William Forbath largely accepts my conceptualization but disputes my contention that the traditional liberal state died in 1937. Rather, he argues, the post–New Deal American state was deeply informed by Hughes's “lawyerly” brand of “transitional” liberalism, which balanced a “progressive” commitment to reform and administrative state-building with a “classical” regard for dual federalism and the primacy of courts and common law. Finally, Risa Goluboff contests my suggestion, via Hilaire Belloc, that the new constitutional order subordinated individual economic rights to the interests of the national state and the elites that control it. The quest for economic rights remained strong, she suggests, until the onset of the Cold War, which limited the reach of the American welfare state, and the Brown decision, which gave a racial (and, eventual, gender) definition to liberal reform.