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Concrete Leviathan: The Interstate Highway System and Infrastructural Inequality in the Age of Liberalism
Published online by Cambridge University Press: 21 February 2023
Abstract
This article explores how the construction of the National System of Interstate and Defense Highways prompted litigation that altered the course of administrative law and governance from the 1960s onward. By that time, the construction of the interstate system had become synonymous with the destruction of neighborhoods and parks bulldozed to make way for the “concrete monsters,” as some came to call the interstates. Ensuing protests—“freeway revolts”—pressed for altered construction practices and participatory roles for citizens and communities in the state building process underway. This article explores the legal consequences of interstate highway protest, and advances two arguments. First, freeway revolts brought distinctive reforms to the practices of modern American state building, particularly when they produced the canonical Supreme Court case Citizens to Preserve Overton Park v. Volpe (1971). Second, despite the reformist inclinations present in Overton Park, the case created an unequal legal and physical landscape of state building. Contrasting Overton Park with Nashville I-40 Steering Committee v. Ellington (1967), a case dealing with racial discrimination and community destruction, reveals the mechanics of a legal regime that cemented racial and class hierarchies in place across long horizons of space and time via the interstate system's durable, nation-spanning asphalt limbs.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of the American Society for Legal History
References
1 Flem Otey's experience is recounted in Richard Whalen, “The American Highway: Do We Know Where We're Going?” Saturday Evening Post, December 14, 1968, 22–64. Lizabeth Cohen tracks the development of interstate highway-linked shopping centers and suburbs in A Consumer's The Politics of Mass Consumption in Postwar America (New York: Vintage, 2003); see also Gutfreund, Owen, Twentieth-Century Sprawl: Highways and the Reshaping of the American Landscape (New York: Oxford University Press, 2004)Google Scholar.
2 Whalen, “The American Highway,” 22–23.
3 Avila, Eric, The Folklore of the Freeway: Race and Revolt in the Modernist City (Minneapolis: University of Minnesota Press, 2014)Google Scholar. A range of historical treatments explore the history—and cultural endurance—of the freeway revolts: see Ammon, Francesca Russello, Bulldozer: Demolition and the Clearance of the Postwar Landscape (New Haven: Yale University Press, 2016)Google Scholar; Avila, Eric, Popular Culture in the Age of White Flight: Fear and Fantasy in Suburban Los Angeles (Berkeley: University of California Press, 2004)Google Scholar; Mohl, Raymond, “Stop the Road: Freeway Revolts in American Cities,” Journal of Urban History 30 (2004): 674–706CrossRefGoogle Scholar; and Mohl, Raymond, “The Interstates and the Cities: The US Department of Transportation and the Freeway Revolt, 1966-1973,” The Journal of Policy History 20 (2008): 193–226CrossRefGoogle Scholar.
4 Nashville I-40 Steering Committee v. Ellington, 390 U.S. 921 (1968); “Flournoy A. Coles, Jr.,” Washington Post, August 5, 1982; Vanderbilt University, “Milestones and Achievements,” https://www.vanderbilt.edu/celebratingblackhistory/milestones/index.php (October 10, 2022); and Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). On Overton Park's enduring significance in law and legal studies, see Schiller, Reuel, “Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945-1970,” Vanderbilt Law Review 53 (2000): 1389–454Google Scholar; and Strauss, Peter L., ed., Administrative Law Stories (New York: Foundation Press, 2006)Google Scholar. Mid-twentieth-century American liberalism, of course, was replete with competing impulses among power wielders. Some sought a more egalitarian infrastructural future—generally in vain. The key treatment of this subject is Cohen, Lizabeth, Saving America's Cities: Ed Logue and the Struggle to Renew Urban America in the Suburban Age (New York: Farrar, Straus, and Giroux, 2019)Google Scholar. Elements of this story are also central to Kimberly Phillips-Fein, Fear City: New York's Fiscal Crisis and the Rise of Austerity Politics (New York: MacMillan, 2018). Phillips-Fein tracks the economic history that worked in concert with the legal shifts under examination here to eviscerate municipal services, produce social disparities, and reshape the course of American governance. Meanwhile, Brent Cebul and Mason B. Williams have made visible the underlying structures of liberal governance that enabled infrastructure to be such a pliable tool, capable of giving egalitarian reformers optimism yet also capable of etching disparity into the mid-twentieth-century American landscape. They call on scholars to “consider not just the structure of the New Deal state, but the intended and unintended uses to which communities, interest groups, and citizens have directed…the tools of New Deal federalism.” See Cebul, Brent and Williams, Mason B., “‘Really and Truly a Partnership’: The New Deal's Associational State and the Making of Postwar American Politics,” in Shaped by the State: Toward a New Political History of the Twentieth Century, ed. Cebul, Brent, Geismer, Lily, and B., Mason Williams (Chicago: University of Chicago Press, 2019): 96–122Google Scholar, at 115. In brief, the interstate highway system was a powerful technology of governance at the center of a complex governmental context marked by competing interests and competing levels of federalism. That the interstate system had the effects it did—concretizing racial and class hierarchies despite pushback and countervailing ideas—is indicative to how federal administrators won the power struggle in the courts.
5 Legal scholars have commented on Overton Park. See Thomas, William A., “The Road to Overton Park: Parklands Statutes in Federal Highway Legislation,” Tennessee Law Review 39 (1972): 433–58Google Scholar; Strauss, Peter L., “Revisiting Overton Park: Political and Judicial Controls over Administrative Actions Affecting the Community,” UCLA Law Review 39 (1992): 1251–330;Google Scholar Farber, Daniel A., “Saving Overton Park: A Comment on Environmental Values,” University of Pennsylvania Law Review 146 (1998): 1671–86CrossRefGoogle Scholar; and Gibson, Tannera George, “Not in My Neighborhood: Memphis and the Battle to Preserve Overton Park,” University of Memphis Law Review 41 (2011): 725–44Google Scholar. Few historians have centered both grassroots social movements and ensuing legal developments; see Mohl, Raymond A., “Citizen Activism and Freeway Revolts in Memphis and Nashville: The Road to Litigation,” Journal of Urban History 40 (2014): 870–93CrossRefGoogle Scholar. As Mohl's title indicates, among historians, much of the emphasis has rested on social mobilization leading up to litigation, rather than on litigation itself and on its consequences.
6 Whalen, “The American Highway,” np.
7 On the economic promises that attended the interstate system's invention, see, for example, the early commentary of the Brookings Institution economist Wilfred Owen, perhaps the nation's leading authority on highway economics and development in the 1950s, who summarized the interstate highway project as the key to national “economic expansion” after President Dwight D. Eisenhower signed the Federal-Aid Highway Act of 1956 (Pub. Law No. 84-627, 70 Stat. 374). Wilfred Owen, “What Do We Want the Highway System to Do?” in Financing Highways, ed. Tax Institute (Princeton: Tax Institute, 1957), 3. On the “expanding economy,” see John Maynard Keynes, The General Theory of Employment, Interest and Money (Hertfordshire: Wordsworth, 2017 [originally published 1936]), especially ch. 8–10, and 12. An important exploration of Keynes's ideas in this regard, and the resulting policy framework focused on aggregated national economic expansion, comes from Mitchell, Timothy, Carbon Democracy: Political Power in the Age of Oil (Brooklyn, NY: Verso, 2011), 109–43Google Scholar. I have addressed the influence of national economic growth on highway development elsewhere: see Arcadi, Teal, “Partisanship and Permanence: How Congress Contested the Origins of the Interstate Highway System and the Future of American Infrastructure,” Modern American History 5 (2022): 53–77CrossRefGoogle Scholar. Analyzing the interstate highway system with an eye toward its differential macroeconomic impacts joins with an extensive literature on the inequities baked into post-World War II Keynesianism. Some inequities were inadvertent, some not. Feminist scholars were among the first to detail the problems along gendered fault lines. See, for example, Waring, Marilyn, If Women Counted: A New Feminist Economics (San Francisco: Harper and Row, 1988)Google Scholar. A significant recent study of the racism inherent to Keynesian policy making and state building comes from Nathan D.B. Connolly, “The Strange Career of American Liberalism,” in Shaped by the State: Toward a New Political History of the Twentieth Century, ed. Brent Cebul, Lily Geismer, and Mason B. Williams (Chicago: University of Chicago Press, 2019), 62–95. For an analysis of the Keynesian shift away from welfare spending and toward infrastructure spending, see Smith, Jason Scott, Building New Deal Liberalism: The Political Economy of Public Works, 1933-1956 (New York: Cambridge University Press, 2006)Google Scholar. Critiques of inequality vis-à-vis Keynesianism, of course, are different from full-bore assaults on the basic principles of the framework long levied by conservatives, commencing with Keynes’ contemporary Friedrich Hayek and his response Keynes's work: The Road to Serfdom (Chicago: University of Chicago Press, 1994 [originally published 1944]). For a historical overview of this far less sympathetic criticism of Keynesianism, see Glickman, Lawrence, Free Enterprise: An American History (New Haven: Yale University Press, 2019)Google Scholar. The invocation of an official “scheme,” of course, alludes to Scott, James C., Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998)Google Scholar.
8 Ammon, Bulldozer, 183; and Connolly, Nathan D.B., A World More Concrete: Real Estate and the Remaking of Jim Crow South Florida (Chicago: University of Chicago Press, 2014), 8, 183CrossRefGoogle Scholar. The unnamed interstate planner is quoted in Mohl, “Stop the Road,” 680.
9 On the rise of the federal administrative state, its nicknames, and its characterizations in the mid twentieth century see Kornhauser, Anne, Debating the American State: Liberal Anxieties and the New Leviathan, 1930-1970 (Philadelphia: University of Pennsylvania Press, 2015), 1CrossRefGoogle Scholar; and Tani, Karen States of Dependency: Welfare, Rights, and American Governance (New York: Cambridge University Press, 2016), 21Google Scholar. For a wide-ranging history of administrative governance and its relationship with associational governance, see Balogh, Brian, The Associational State: American Governance in the Twentieth Century (Philadelphia: University of Pennsylvania Press, 2015)CrossRefGoogle Scholar. Of course, states remained powerful subnational governing units despite—and sometimes because of—federal action throughout the twentieth century. This is a rich area of current historical scholarship; see especially Gerstle, Gary, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton: Princeton University Press, 2015)Google Scholar; Tani, States of Dependency; Cebul, Brent, Tani, Karen, and Williams, Mason B., “Clio and the Compound Republic,” Publius: The Journal of Federalism 47 (2017), 235–59CrossRefGoogle Scholar. Meanwhile, the aims and powers of administrative governance have been studied with respect to a wide range of specific policy areas; the examples referenced here regarding economic life, sexuality, and welfare are drawn from Mitchell, Carbon Democracy; and Canaday, Margot, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton: Princeton University Press, 2009)CrossRefGoogle Scholar. I first explored the interstate highway system as a “concrete Leviathan” in Teal Arcadi, “Remapping America: The Interstate Highway System and Infrastructural Governance in the Postwar United States” (PhD diss., Department of History, Princeton University, 2022).
10 On the development of twentieth-century American administrative law and governance and its vexed relationship with liberalism and participatory democracy see Kornhauser, Debating the American State; Ernst, Daniel R., Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940 (New York: Oxford University Press, 2014)CrossRefGoogle Scholar; and Joanna Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal (New York: Cambridge University Press, 2012). Regarding the legal history of administrative governance and its relationship with the citizenry and with the judiciary, see Schiller, “Enlarging the Administrative Polity”; and Schiller, Reuel, “‘Saint George and the Dragon’: Courts and the Development of the Administrative State in Twentieth-Century America,” Journal of Policy History 17 (2005): 110–24CrossRefGoogle Scholar.
11 John D. Morris, “Eisenhower Signs Road Bill; Weeks Allocates $1.1 Billion,” The New York Times, June 30, 1956, A1; Joseph C. Ingraham, “U.S. Drivers Begin Footing New Highway Bill,” The New York Times, July 1, 1956, X19; Joseph C. Ingraham, “U.S. Gasoline Tax Up A Penny Today,” The New York Times, July 1, 1956, A31; “Scars Across the Land,” New York Times, July 10, 1968, A38; and Ben Kelley and Richard Herbert, “Priorities or Trust Funds? The Nation, April 19, 1971, 497. On political disagreements that shaped the legislative and physical construction of the interstate system, see Arcadi, “Partisanship and Permanence.”
12 The demographic and political contours of the freeway revolts have been examined by Mohl, “Stop the Road,” 674–80. See also Avila, The Folklore of the Freeway; and Mohl, “The Interstates and the Cities.”
13 Lewis Mumford, “The Highway and the City,” Architectural Record, April 1958, 181–82, 185–86.
14 Karl Detzer, “Our Great Big Highway Bungle,” The Reader's Digest, July 1960, 45–51; and Kelley, Ben, The Pavers and the Paved: The Real Cost of America's Highway Program (New York: Donald Brown, 1971)Google Scholar.
15 While much of the focus here rests on federal administrators, this was a key period of expanding sub-national administrative and associational governance as well. Important studies of local and state activity in this regard include Tani States of Dependency; Cebul and Williams, “‘Really and Truly a Partnership’”; and Paul Sabin, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism (New Haven: Yale University Press, 2021).
16 Schiller, Reuel, “The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law,” Michigan Law Review 106 (2007): 404–6Google Scholar.
17 Addison v. Holly Hill Fruit Farms, 322 U.S. 607 (1944); Administrative Procedures Act of 1944, Pub. Law 79–404, 60 Stat. 237; and Schiller, “Enlarging the Administrative Polity,” 1417-9.
18 Mohl, “The Interstates and the Cities,” 198; and Joseph S. Clark, “Cities Revolt Against the Expressway,” reprinted in Congressional Record—Senate, 89th Cong., 2d sess., April 6, 1966.
19 Federal-Aid Highway Act of 1966, Pub. Law 89-574, 80 Stat. 766.
20 Federal-Aid Highway Act of 1966, Pub. Law 89-574, 80 Stat. 766; Department of Transportation Act of 1966, Pub. Law 89-670 80, Stat. 931; and Federal-Aid Highway Act of 1968, Pub. Law 90-495, 82 Stat. 815. On the term “Parklands Statutes” see Thomas, “The Road to Overton Park.”
21 Nashville I-40 Steering Committee v. Ellington (1968); Citizens to Preserve Overton Park v. Volpe (1971); and Strauss, “Revisiting Overton Park.”
22 Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179 (1967), 180-1.
23 Nashville I-40 Steering Committee v. Ellington (1967), 184-5.
24 Nashville I-40 Steering Committee v. Ellington (1967), 184-5.
25 Nashville I-40 Steering Committee v. Ellington (1967), 183.
26 Henrik E. Stafseth, Director, Department of State Highways, Lansing, MI, “Build, Baby, Build,” in American Association of State Highway Officials Annual Conference (Washington, DC: American Association of State Highway Officials Annual Conference, 1969), 1. Please note: the proceedings of the American Association of State Highway Officials are published but only available archivally. I examined the collection held by the Linda Hall Library, Kansas City, MO.
27 The Department of Transportation Act of 1966 (Pub. Law 89-670 80, Stat. 931) created the Federal Highway Administration, which subsumed the BPR.
28 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).
29 Edwin Reis, Assistant Chief Counsel, Federal Highway Administration, “Route Alignment—Public Opposition or Litigation,” in American Association of State Highway Officials Annual Conference, 1969 (Washington, DC: American Association of State Highway Officials Annual Conference, 1969), 202–3; Pub. Law 79–404, 60 Stat. 237.
30 Schiller, “The Era of Deference,” 399-441.
31 Reis, “Route Alignment—Public Opposition or Litigation,” 202–3; and Pub. Law 79–404, 60 Stat. 237.
32 Reis, “Route Alignment—Public Opposition or Litigation,” 203.
33 Reis, “Route Alignment—Public Opposition or Litigation,” 204–6; Wilmington Park Authority, 365 U.S. 715 (1960); and Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
34 Reis, “Route Alignment—Public Opposition or Litigation,” 208.
35 National Environmental Policy Act of 1969, Pub. Law 91-190, 83 Stat. 852. Reis, “Route Alignment—Public Opposition or Litigation,” 206. See Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F. 2d 608 (2nd Cir. 1965), certiorari denied; and State of Washington v. Federal Power Commission, 207 F. 2d 391 (9th Cir. 1953).
36 Edwin Reis, Assistant Chief Counsel, Federal Highway Administration, “Recent Environmental Cases as they Relate to the Location and Construction of Highways,” in American Association of State Highway Officials Annual Conference, 1970 (Washington, DC: American Association of State Highway Officials Annual Conference, 1970), 126–27.
37 Citizens to Preserve Overton Park, Inc. v. Volpe, 432 F.2d 1307 (1970); Citizens to Preserve Overton Park, Inc. v. Volpe (1971; Pub. Law 89-574, 80 Stat. 766; Pub. L 89-670 80, Stat. 931; Pub. Law 90-495, 82 Stat. 815; and Thomas, “The Road to Overton Park,” 433-458.
38 Citizens to Preserve Overton Park, Inc. v. Volpe, (1970); and Citizens to Preserve Overton Park, Inc. v. Volpe (1971).
39 Citizens to Preserve Overton Park, Inc. v. Volpe (1970), 1309-14. On the practice of securing rights of way adjacent to areas that administrators sought to bulldoze, see Arcadi, “Remapping America.”
40 Citizens to Preserve Overton Park, Inc. v. Volpe (1970), 1318.
41 Ibid., 1317–18.
42 Reis, “Recent Environmental Cases as they Relate to the Location and Construction of Highways,” 126–30.
43 Reis, “Recent Environmental Cases as they Relate to the Location and Construction of Highways,” 130; and Pub. Law 89-670, 80 Stat. 931.
44 Lloyd Reeder, Regional Counsel, Federal Highway Administration, “Legal Requirements of Location Planning,” in American Association of State Highway Officials Annual Conference, 1971 (Washington, DC: American Association of State Highway Officials Annual Conference, 1971), 318–19; and Citizens to Preserve Overton Park v. Volpe (1971).
45 Reeder, “Legal Requirements of Location Planning,” 318–19; and Citizens to Preserve Overton Park v. Volpe (1971).
46 The literature on the entwined politics of race and environmental issues in American history covers a wide range of time periods and particular topics. Important and far-ranging analyses include Jacoby, Karl, Crimes Against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation (Berkeley: University of California Press, 2014)CrossRefGoogle Scholar; and Taylor, Dorceta E., The Rise of the American Conservation Movement: Power, Privilege, and Environmental Protection (Durham: Duke University Press, 2016)Google Scholar. A provocative general overview of the subject comes from legal scholar Jedediah Purdy, “Environmentalism's Racist History,” The New Yorker, https://www.newyorker.com/news/news-desk/environmentalisms-racist-history (August 13, 2015).
47 Thomas, “The Road to Overton Park,” 456–58; and Strauss, “Revisiting Overton Park,” 1259–60.
48 Pub. Law 79–404, 60 Stat. 237, § 706(2)(A); and Schiller, “Enlarging the Administrative Polity,” 1415.
49 Reeder, “Legal Requirements of Location Planning,” 320; and Archer, Deborah N., “‘White Men's Roads Through Black Men's Homes’: Advancing Racial Equity Through Highway Reconstruction,” Vanderbilt Law Review 73 (2020): 1259–330Google Scholar, at 1313.
50 Reeder, “Legal Requirements of Location Planning,” 320; Archer, “‘White Men's Roads Through Black Men's Homes,’” 1313; Connolly, “The Strange Career of American Liberalism,” 64, 82; and Connolly, A World More Concrete, 8, 183.
51 Griggs v. Duke Power Co., 401 U.S. 424 (1971); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); and Milliken v. Bradley, 418 U.S. 717 (1974).