In older American city halls, it is still possible to find high counters dividing offices. The original idea was that a citizen could approach from one side, an official from the other, so that the one could ask a question or present paperwork for the other to address. The official might reach below to grab a form or receipt for a fee; all could be handled on the spot. Although the counter might look like a wall, it nevertheless made the business of governing a little bit easier much of the time because the citizen and the official briefly shared a work space. The counter was also where the aggrieved or suspicious came to demand an accounting from their government. Then, it could become a barrier. In those moments at the counter, possibly unrecognized by the gadfly and unacknowledged by the official, unvoiced notions about the nature of democracy and the relationship between governed and governors were illuminated. Those conceptions, as revealed in those transitory moments during a particularly critical period in the history of American political thought, are the subject here.
To look for the gadfly at the counter is to seek a kind of history of micropolitics, or perhaps a microhistory of a political sentiment: the way people defined for themselves their ideas of community self-government . These were ideas that were very much in flux during the last third of the nineteenth century and first decades of the twentieth, as cities grew larger and the challenges of managing the demands of daily life seemed more complex. The last decades of the nineteenth century were indeed a time of robber barons and Whiskey Rings, political machines and the price-fixing Trusts, but they were also when the idea took hold that any citizen could demand an accounting from government officials. If nothing else, the ballooning growth of population, the increasing complexity of economic and political life, and the new demands on government to address the real concrete needs of many individuals crowded close together meant that the less formal interactions that regulated the affairs of villages and tiny towns were no longer sufficient. By the end of this time, however, the technical expertise required to deliver public service generated a new kind of public servant, as well as a profound shift in how people viewed their relationship with their government. In a sense, many felt themselves to be more consumer than citizen , and many officials saw the people they served in that way as well. This change was fundamental. With it came a wasting away of the conviction that those in government owed an accounting to the public. With it, too, came the feeling (as Bessie Berger in Clifford Odetsâ play âAwake and Singâ finally put it) that to say âGo fight City Hallâ is to describe the ultimate pointless act.1
The political and social dynamics reflected in the changing responses to the gadfly at the counterâthe explosive growth of cities , the more elaborate (and often corrupt ) organization of political parties, machines and associations, the clashes that arise when people come together as not-always-willing neighborsâdrove the electoral dramas more familiar in our stories of our past. To vote for or against an incumbent is, to be sure, to hold that official to account. Yet accountability is really a process. Election Day comes at the end. The process starts much earlier, well before the speeches and parades, long before the precinct captains swung into action or the candidateâs posters were pasted to fences or nailed to telegraph poles. The process of accountability really starts when an individual seeks to know something about an official act . Oddly, this can be a far more contentious step than might be expected.
So contentious, indeed, that it can even end up in court. When that happens, it becomes possible to learn of those fleeting moments that launch the process of accountabilityâa process too often cut off right at the start. It is when the gadfly, rebuffed at the counter, proceeds on to the courthouse that it becomes possible to look back and see how a demand for accountability started and how it was resolved. Following gadflies to the courthouse will show that some won their answers, though many failed. Each case was a test of the beliefs that led the gadfly to seek accountability , of the notions that led the official to fend off the gadfly, and, finally, of the theories under which the judge settled the dispute.
The Gilded Age judges who first tackled the question generally found citizens had a broad right to demand an accounting from officials. Their rulings were often occasion for an effusive, even eloquent celebration of American democracy. For the most part, however, these judges ruled without going quite so far as to make the point that democratic government does not work well if citizens do not know what their officials have done and how they reached their decisions to actâthe assumption that brought the gadflies to the counter in the first place. Except for the early precedent-setting New Jersey decision, to be discussed in Chap. 3, the judges who accepted that there was a right to see public records instead focused on an individualâs right to ask for information. In effect, they ruled on what items a citizen, as a kind of proprietor of his or her government, was entitled to obtain from that government. Content with the information, the gadfly might not have worried much about whether a judge shared his or her belief that to demand an accounting was a first step toward fixing a perceived problem. Later, as gadflies kept coming to the counter and then to court, judges considered what might be done with information and worried that people would challenge government for no particularly good reason. At that point, a demand for an accounting no longer looked much like the kind of participation in civic life that had so long formed the core of a traditional vision of American democracy that historians and political scientists call republicanism . An individualâs right to demand an accounting might seem unnecessary to officials and to judges in a world where political machines and reform movements alike were organizing, purportedly to provide more expertly and more efficiently the services the public demanded .
A new way of looking at cities also undermined the gadfly. The old formality of incorporation (that is, recognition of a collective entity by the state) would come to define the scope of local self-government in legal theory. In this theory, set out most comprehensively in Iowa jurist John Forrest Dillonâs widely-consulted textbook Municipal Corporations , the government of a communityâcity, county, or townâwas the creation of a state legislature and not of the mutual consent of the communityâs people .2 In a sense, Dillon turned his back on the story that the idea of American self-government dated back to the Pilgrims, when they wrote their own Mayflower Compact once off the Massachusetts shore and used it to form their government, rather than the royal patent they had been granted back in England. Dillonâs insistence on a state legislatureâs act of incorporation as the source of municipal power had implications beyond disputes over the city bond sales or liability for accidents that preoccupied the attorneys who relied on his textbook. Looking at cities as corporations at precisely the time that states were making it easier for businesses to incorporate encouraged the idea that cities needed business-like management. It also meshed well with a notion that city-dwellers were primarily consumers of public services, more passive participants in community affairs than the old republican concept of citizenship envisioned. The city as corporation and citizen as consumer would redefine concepts of how Americans ought to govern their affairs, and the gadfly at the counter would be among the first to feel the effect.
The question of what a citizen had a right to demand was, naturally, easier to resolve for some citizens than for others, as the contrasting efforts of a former mayor of Orange, N.J. , and an upset gardener from Durant, Oklahoma , in Chaps. 3 and 6 will show. A judgeâs impulse to protect a civil servant and distaste for a gadflyâs attitude can be seen with the rejection of a demand for records about a New York City typhoid outbreak in Chap. 7. Yet it was not just status and position that mattered. Well-connected citizens, even the wealthy heir to a Standard Oil fortune, could be frustrated when insisting on a right to demand accountability, as Chap. 5 will note.
The issue underlying a demand for accounting mattered, too. The former mayor of Orange was a prominent businessman and Methodist lay leader who asked judges who largely shared his views to help him crack down on alcohol. His demand for an accounting was endorsed. That Oklahoma gardener who wanted his small city to keep its electric power plant, rather than sell it to an out-of-state holding company, failed. Municipal ownership was out of fashion. What brought gadflies to court ranged from potholes on the streets to the rights of African Americans to vote. While the obvious corruption of New York Cityâs Streets Commissioner was part of the context of the gadflyâs demand that will be detailed in the next chapter, so too were the commissionerâs powerful allies in the Tammany Hall political machine. The result was an enthusiastic declaration of a general right to inspect government records , the first written American judicial opinion on the question, which was followed almost immediately by a one-sentence order by the same judges reversing themselves, with no explanation.3 The crosscurrents at play in any demand for an accounting could be complex, and the results ambiguous.
How judges reacted to such demands speaks as much to politics as to law, because there was in fact little law to guide them. The right to demand an accounting was not a matter of statute, as is the case with current open government and freedom of information acts. Without the formal expression of policy and belief embedded in legislation, it was difficult to even say there was such a right. As a result, the connection between a right to demand an accounting and democratic practice was more something the plaintiffs in these cases felt rather than knew. At the sam...