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The purpose of this contribution is to examine the idea of the Continental State in a common-law context. To that effect, the focus of this essay is the American state. Typically, in comparing the American regime to the Continental idea of the state, much has been made of a so-called tradition of ‘American exceptionalism’. Alexis de Tocqueville perhaps started this trend when he observed in the United States distinctive qualities of individualism, associationalism, localism, and decentralization, but not many inklings of a modern state. ‘The federal government of the United States’, he mistakenly surmised in the early nineteenth century, ‘is tending to get daily weaker; stage by stage it withdraws from public affairs, continually narrowing its sphere of action. Being naturally weak, it gives up even the appearance of strength.’ Hegel went further and questioned whether the United States was a ‘real State’ at all. As he noted, ‘[t]‌he general object of the existence of this State is not yet fixed and determined, and the necessity for a firm combination does not yet exist; for a real State and a real Government arise only after a distinction of classes has arisen.’ Without the class dynamics of the old world, without a feudal aristocracy, without a military nobility or an elite corps of state civil servants, and without the reception of Roman law, what could one possibly be talking about by referring to an American state? Despite more recent efforts to ‘bring the state back’ into American social science, (p. 99) myths of American state ‘weakness’ and ‘exceptionalism’ continue to predominate in the existing literature.

This contribution, however, takes issue with this common portrait of American state exceptionalism. Building on some very recent historical and theoretical work on the American state, it explores the conscious effort to create a modern state in the United States on a more or less Continental model. As Daniel Rodgers and James Kloppenberg have suggested, American ideas and institutions were not created in splendid isolation in the wilderness5 Rather, from the beginning, American intellectuals, jurists, and state reformers engaged in an extended transatlantic dialogue concerning matters of politics, law, and statecraft. This was especially true of the period that experienced the most extensive transformations in American governance and statecraft—the late nineteenth and early twentieth centuries. Accordingly, this contribution takes a close look at the American tradition of law and state building in this formative era—from 1866 to 1932. It was a period in which the Continental idea of the state loomed especially large.


This material was originally published in The Administrative State edited by Armin von Bogdandy, Peter M. Huber, and Sabino Cassese, 98-124, and has been reproduced by permission of Oxford University Press. For permission to reuse this material, please visit