The glut of new suburban housing erected after the Second World War created a cascade of new challenges. Among them, many Establishment figures worried about how to keep the blood flowing to the nation’s downtowns. With the (largely white) middle classes pouring out into various suburbs full of single-family homes—many of them purchased with generous federal subsidies—urban business districts became increasingly dependent on commuters. Planners, who had come to imagine downtowns as something akin to a living organism’s beating heart, began to worry that surface street traffic would become so clogged that businesses would move out as well. In response, city fathers around the country alighted on the idea of building something akin to cardiac stents—namely, new expressways that would whoosh people from the outskirts directly into the center city. To save the city, they argued, you needed to build through it.
Decades later, this whole notion would seem preposterous. The urban expressways that cut through previously tight-knit if sometimes ragged neighborhoods would be recast as gashes sliced through fragile living organisms. As we’ll see, reformers early to that realization responded by building up a series of defenses making it almost impossible to build new infrastructure, good or bad. But at the time, many held to the prevailing view that downtowns would die without expressways. Planners extolling the demand for new urban circulatory systems made the case for urgency, worried that each traffic-clogged city might otherwise fall behind its competitors—that the metropolises that completed their urban highways most expeditiously would glean a competitive advantage. It was with this as a backdrop that city fathers in two midsize American cities, San Antonio, Texas, and Memphis, Tennessee, began thinking about how to ensure they wouldn’t be left behind.
San Antonio’s wealth had by then begun pushing north from downtown, with middle- and upper-class families putting down roots in neighborhoods on both sides of McCullough Avenue, a thoroughfare streaming up toward the city’s newly constructed airport. And while the region was already blessed with circumferential roads and expressways going east and west, planners soon began noting the difficulty for locals commuting north and south—particularly for downtown businessmen rushing to catch a flight. In June 1959, city leaders asked the Texas Highway Department for a new north-south highway capable of delivering residents living north of the city straight into downtown. Better, the experts believed, to get speeding commuters off the slow-going surface streets.
Seven hundred miles to the northeast, residents of Memphis were having much the same debate, but their challenge was to connect the city’s downtown to neighborhoods and suburbs farther east. As in San Antonio, those living farther from the Mississippi River were navigating increasingly clogged surface roads when commuting downtown. As in San Antonio, the local Establishment (the Chamber of Commerce in San Antonio, the Downtown Association in Memphis, among others) determined that the logical fix was to extend an expressway straight into the city center. But here, local leaders had an extra leg up: the federal government had already begun planning an interstate, I-40, from Greensboro, North Carolina, to Los Angeles. It seemed possible that this federal project could be the solution to fix Memphis’s local challenge.1
If the broad outlines seemed clear in both cities, the specific routes remained undefined. Some of San Antonio’s nicest neighborhoods, places like Olmos Park and Monte Vista, sat directly between downtown and the airport. Similarly, wealthy white residents of Memphis had splayed out in eastern communities ranging from Central Gardens to Bellaire Woods. Planners knew that however easy it might be to displace the residents of poor and minority neighborhoods, cutting through well-to-do white neighborhoods was fraught.2 Fortunately, both cities boasted big, beautiful parks between the endpoints. Build through that urban greenery, planners figured, and you wouldn’t have to condemn nearly so many nice homes.
But the two parks were, in fact, crown jewels. San Antonio’s Brackenridge Park was a serpentine slash of green bound by resplendent houses and the idyllic campuses of Trinity University and the University of the Incarnate Word. Memphis’s Overton Park boasted a zoo, a 170-acre forest of oak and hickory trees, a nine-hole golf course, and a band shell.3 Nevertheless, the trade-offs seemed clear: in Memphis spoiling 26 of Overton Park’s 342 acres would save at least six hundred homes and twenty businesses.4 And there were financial considerations as well: the government is obligated to provide compensation when taking possession of a home or business. The parks were already public property—they could be claimed for a song.5 And so planners and engineers worked up plans to drive these two new highways through Brackenridge and Overton Parks, confident that, as experts, they’d divined the most rational solution to a pressing public challenge.
Predictably enough, not everyone in either city was elated. Animated groups of local residents spoke up for keeping both parks pristine. But leading figures in both communities argued to mostly receptive audiences that to grow and thrive, postwar metropolises needed to enhance their mobility. They weren’t entirely dismissive of the trade-offs—to compensate, San Antonio committed to replacing whatever green space was taken by the new highway, and Memphis would convert five thousand acres into new parkland.6 And so, eventually, the vast majority of citizens in both cities fell into line without much complaint. The same month John F. Kennedy was elected president, voters in San Antonio supported a bond to purchase the right-of-way shooting north of downtown by two-to-one.7 In the same vein, the Memphis City Council would pass a resolution supporting the highway through Overton Park.8
But if the proposals were broadly popular, the ragtag local opposition refused to acquiesce. Often viewed as gadflies—it’s not hard now to envision the *very serious* men extolling the project rolling their eyes at *housewives* convinced that their picnics in the park were more important than regional progress—oddball collections of detractors began asking questions that reached beyond their immediate self-interest. Were expressways worth the enormous cost to taxpayers? Was government doing enough to mitigate the environmental impacts? Did urban planners really know what they were doing? Arrayed against their respective Establishments, each city’s troublemakers looked small and powerless. In most measures, they were.
These dynamics prevailed in cities across the country. And, in time, the gadflies began to find each other—to join together in a national network of organizers fighting various highway schemes across the country—New York, New Orleans, Nashville, Washington, Baltimore, and Boston among them.9 One New Yorker, Helen Leavitt, eventually highlighted the San Antonio fight in a widely read book, cementing a notion that little platoons of expressway detractors across the country were aligning into a grassroots movement.10 But however many tree-hugging activists wrote letters to their local newspapers, they were rarely able to glean any real leverage over the Establishment. And, in many cases, the power differential was so stark that the opponents were dismissed without reply.
San Antonio, however, turned out to be different—there, the gadflies had a powerful ally. Texas senator Ralph Yarborough, remembered today as the last true liberal to represent the Lone Star State, shared some of the protestors’ pique. He too had been put off by the ways San Antonio’s elite had so nonchalantly chosen to sacrifice the city’s crown jewel for a dirty, noisy highway. And as a senator, he was uniquely equipped to do something about it. In 1966, Yarborough was negotiating the specifics of the complex bill that would wrangle the scattered federal agencies overseeing roads, rails, air traffic, and more into a single, federal Department of Transportation. And during the course of that negotiation, he inserted language designed to nudge officials in Texas to find an alternative route—one that would more likely leave Brackenridge Park undisturbed.
The amendment that Yarborough crafted, and then succeeded in getting his colleagues to accept, became section 4(f) of the underlying bill. It said, quite simply, that funding issued by the new Department of Transportation could not be used in ways that disrupted public greenery “unless (1) there is no feasible or prudent alternative to the use of such land, and (2) such programs include all possible planning to minimize harm.”11 His fellow senators, who accepted the language, understood what Yarborough was trying to do. Many sympathized, but simultaneously wanted to be clear that 4(f) was not a directive requiring planners to route highways around parks and through neighborhoods. So, in an accompanying report, the Senate specified the following:
[4(f) was not intended to issue] a mandatory prohibition against the use of the enumerated lands, but rather, a discretionary authority which must be used with both wisdom and reason. The Congress does not believe, for example, that substantial numbers of people should be required to move in order to preserve these lands, or that clearly enunciated local preferences should be overruled on the basis of this authority.12
At the time of its enactment, the nation’s highway program was merely a decade old, and the Yarborough rule was just one of a broad range of provisions, written by various members of Congress, designed to rein in the upheaval that highway construction was creating in communities across the country. The same year 4(f) became law, for example, Congress passed the National Historic Preservation Act, a bill designed to nudge planners to take greater account of the buildings that might be sacrificed for highway projects.13 And so it wasn’t immediately clear, when President Lyndon Johnson signed the bill creating the Department of Transportation, whether the Yarborough rule would actually serve to disrupt Texas’s plans to cut through Brackenridge Park. Regardless, Establishment figures in San Antonio didn’t much care. If Ralph Yarborough and his friends were going to force them to consider alternative routes, they would consider them, and then dismiss them out of hand. Their counterparts in Memphis felt the same way. They knew what was best for their cities. Buoyed by the broad support of the general public, the engineers plowed ahead.
The question for opponents at this point was what if anything they could do in the face of the Establishment’s intransigence. And they quickly realized they really had only one potential path forward: if the city planners and state highway engineers were going to turn deaf ears to their objections, the courts offered them their only leverage. The notion that a judge might rule in their favor seemed far-fetched at the time—America’s courthouses were, with certain exceptions like Brown v. Board of Education, still viewed as bastions designed to protect the Establishment from the excesses of democracy. But if highway opponents were going to save Overton and Brackenridge Parks in the face of public sentiment favoring construction—if they were going to cut against majority rule—they had no other recourse. And the two localized fights played out almost in parallel.
In 1967, the same year that the Memphis City Council voted 4–1 in support of extending I-40 through Overton Park, a group in San Antonio led by the local Conservation Society filed suit in federal court.14 Not long thereafter, Citizens to Preserve Overton Park, a group of activists organized by local Memphis firebrand Anona Stoner—a woman who might perhaps be best remembered as Memphis’s answer to Jane Jacobs—filed a similar suit in Tennessee. Both groups faced the same dispiriting challenge. For decades, progressives had been preaching the virtues of judicial restraint.15 August figures ranging from Oliver Wendell Holmes to Louis Brandeis to Felix Frankfurter had been determined to holster judicial interference so that executive branch officials could exercise more discretion when working in the public interest. Now, Stoner and her peers were asking courts to flip back—to substitute their judgment for those wielding public authority.
Given the prevailing jurisprudence, few were surprised when a federal judge in Memphis refused to require highway officials to select an alternative route. Or when the same argument failed on appeal before the Sixth Circuit Court in Cincinnati. For all that various courts might have questioned the underlying merits of these federally financed, state-administered, locally endorsed schemes, Stoner’s counsel failed to convince judges that the decisions had been “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as specified in the Administrative Procedure Act passed two decades earlier. The Yarborough rule had been written to require officials to consider alternatives to plans that would affect greenery, not to dictate that officials couldn’t choose to drive roads through public parks. And so it came as something of a shock when the Supreme Court decided, despite what seemed like a clear standard, to take up the appeal. And in the majority opinion he subsequently authored in Citizens to Preserve Overton Park v. Volpe, Supreme Court Justice Thurgood Marshall issued a ruling that not only turned Anona Stoner into a sainted hero, but also proved a crucial pivot manifesting progressivism’s cultural aversion to power.
At the outset, Stoner’s crusade had appeared so unlikely to succeed that she struggled even to find lawyers willing to take up the case. But with the Supreme Court’s surprise decision to hear the appeal, a whole range of national environmental interests—Friends of the Earth, the Wilderness Society, the National Audubon Society, and the Sierra Club among them—joined her cause.16 Their legal team faced a formidable task: to convince a liberal court to cut against progressivism’s embrace of judicial restraint, they would have to focus on procedure. It wasn’t that the expert officials were prohibited from cutting through Overton Park, they would argue. It wasn’t even that they’d erred in their judgment—it was, and remains, entirely within the government’s discretion to build public works where they deem best. At root, the problem was that the figures who had planned this particular route had not, as the Yarborough rule required, explored in sufficient detail alternative routes that would have left Overton Park intact. They’d arrived at their decision the wrong way.
Justice Marshall’s opinion, signed by six of his colleagues, represented nothing less than a Jeffersonian earthquake.17 Repudiating the district and circuit court decisions, the court’s liberal majority interpreted Senator Yarborough’s rule in a manner entirely at odds with the Senate report accompanying the legislation. As Marshall argued: “It is obvious that in most cases considerations of cost, directness of route, and community disruption will indicate that parkland should be used for highway construction whenever possible.” That is, in most cases, the cheapest, most expeditious, and least destructive path for a highway will almost always point officials to build across greenery. But, he went on to argue, “Congress clearly did not intend that cost and disruption of the community were to be ignored.… The statute indicates that protection of the parkland was to be given paramount importance.”18 In short, green space could be disrupted, but “only [in] the most unusual situations.” Until the federal secretary of transportation determined, with sufficient study, that there were no “feasible and prudent alternatives,” engineers could not proceed. And when they did, they would have to make every possible effort to mitigate the harm.19
Environmental activists and highway opponents reacted to Marshall’s decision with unadorned glee. Already in the early 1970s, progressivism was well into its turn against centralized power. And now, here, in this revelatory judiciary opinion, Anona Stoner had proven herself to be David facing down the Establishment’s Goliath. The president of the Sierra Club compared the fight over Overton Park to Gettysburg and Yorktown, claiming that it was “the first place where individual citizens used the law to stop the state and federal highway building and all the money and power behind them.”20 The New York Times editorialized the ruling was “good news for cities across the country that are still contending with the mania of those who would sacrifice the serene values of a green parkland to frenetic movement through a concrete wasteland.”21 By the summer of 1972, thirty-two similar lawsuits had been filed against various highway plans—in places as diverse as Boston and Seattle.22 Marshall’s decision was a new arrow in the quiver of anyone, no matter how marginalized, who wanted to thwart a project that impacted public greenery.
The Establishment, taken aback by the ruling, scrambled to adjust. To that point, the Tennessee Department of Transportation had intended to drive a $35 million trench through Overton Park, of which 90 percent, or all but $3.5 million, would be reimbursed by Washington. Now, to avoid impacting the park, the engineers would instead have to build a tunnel beneath the greenery, a feat of engineering that would cost a staggering $176 million ($1.3 billion in 2024 dollars), quintupling the state outlay.23 Tennessee appeared happy enough to pursue the tunnel—provided that Washington was willing to cover the difference in cost. But the federal Department of Transportation flatly rejected that request, worrying about precedent. That left Tennessee in a pickle. Two thousand Memphis-area families had, by then, already seen their homes east and west of Overton Park taken in preparation for the new expressway. And if the engineers couldn’t go through the park, their only alternative was to take homes and businesses elsewhere on the periphery—something the community would surely reject. And so the project just stood there in suspended animation for weeks, and then months, and then years.
Marshall’s Overton Park decision had come down in March 1971. More than seven years later, with the project still on ice, Tennessee’s Democratic governor, Ray Blanton, traveled from Nashville to Washington to testify before Congress in support of finally moving the expressway to completion. Resolution, he argued, was “important to all Tennesseans, because we have people being maimed and killed almost on a weekly basis because we do not have this important artery. And I believe now it is the only link of I-40 from coast to coast that doesn’t afford our citizens a safe transportation route.”24 He and the mayor of Memphis, Wyeth Chandler, were both desperate to have Congress somehow point the way out of the impasse—to clarify 4(f), or to shave it down, or to replace it so that Justice Marshall’s opinion no longer stood in their way. But by that point in the late 1970s, the highway system was no longer so popular. Four years after the release of The Power Broker, the public was less inclined to rubberstamp the Establishment’s decisions. Senators had no political incentive to give highway engineers more latitude to bulldoze public greenery.25 And so absent any congressional action, Tennessee folded. In the last weeks of Jimmy Carter’s presidency, the state requested that the federal money set aside for I-40’s route through Memphis be directed elsewhere. Anona Stoner and her allies had won. David had slain Goliath.
San Antonio, whose threats to Brackenridge Park had inspired 4(f), took a different tack. There, as in Memphis, local conservationists had brought suit. And there, in the wake of the Supreme Court’s Overton Park decision, the conservationists had found relief. Citing the precedent set in March 1971, Fifth Circuit Judge Homer Thornberry criticized Texas’s highway planners for failing to establish that they could find no feasible alternative to disturbing Brackenridge Park: “Our task is simplified greatly to begin with because it is undisputed that the Secretary of Transportation complied with none of the… statutes.… No environmental study under N.E.P.A. has been made… and the Secretary has demonstrated no effort by anyone to examine the section 4(f) ‘feasible and prudent’ alternatives.”26 Once again, the local Establishment was stupefied. One of the North Expressway’s fiercest supporters, former San Antonio mayor Walter McAllister, reacted by saying that he was “about ready for Texas to secede from the union.” The elected branches, representing the will of the people, wanted the new expressway—but the courts were standing in their way.
In June 1971, Gruen Associates, an engineering firm based in Los Angeles, published a 120-page environmental impact statement of San Antonio’s plan—a study of the sort mandated by the National Environmental Policy Act, signed by President Nixon a year and a half earlier. The report evaluated a series of routes the North Expressway could take, identifying one that would avoid any impact on the zoo and sunken gardens. The Green Plan, as it was called, would have taken less right-of-way and demanded less than a sixth as much “fill” than Texas’s preferred route through Brackenridge Park. But it would also have required demolishing at least ten “substantial” houses in the tony neighborhood of Olmos Park.27 And while unappealing, the mere possibility precluded highway officials from claiming that they had no “feasible and prudent” alternative. It seemed, then, as though Senator Yarborough was likely to win, much like Anona Stoner.
But San Antonio’s Establishment refused to give in. In September 1971, a group called the Citizens’ Committee for the Completion of the North Expressway collected 40,000 signatures on a petition demanding the road’s completion; two months later, the roster had grown to 100,000.28 And by that point, Yarborough had been unseated by former congressman Lloyd Bentsen, a Rio Grande Valley Democrat who had run in the 1970 primary employing the slogan: “It would be nice if Ralph Yarborough would vote for his state every once in a while.” Bentsen went on to defeat George H. W. Bush in the general election, and in 1972 he mobilized with his Senate peer, Republican John Tower, to give San Antonio the expressway it wanted. The question for the bipartisan pair was how to get around Justice Marshall’s ruling.
It was not a simple challenge. By dint of Overton Park, no federally funded project—not a new highway, a new train track, a new runway, a new port—could impinge on a public green space except in the most limited circumstances. And advocates were aware that those circumstances might not apply in the case of Brackenridge Park. How would courts define a “feasible” alternative? Was a plan that displaced twenty families preferable to one that took several acres of public green space? Ten? Two? It just wasn’t clear that the Texas Department of Transportation would be able to clear the bar. So, the two Texans settled on a different legislative strategy: Rather than attack 4(f), they would pull the North Expressway from the federal system. If the state shouldered the financial burden on its own, the Yarborough rule wouldn’t apply.
That, in the end, is what happened. Despite opposition from the minority of San Antonians who opposed the new road, the Federal-Aid Highway Act of 1973 included a provision deleting the proposed North Expressway from the interstate system altogether. Work recommenced twenty-four hours after President Nixon signed the bill into law.29 Further legal efforts to thwart progress were rebuffed. And the new state highway opened to the public in 1978, named in honor of the former mayor, Walter McAllister.30 I-40 would remain forever broken through western Tennessee, but San Antonians have their straight shot to the airport. And for the most part, that marked the end of the debate over the Yarborough rule.
Section 4(f) remains on the books today, modified only on the margins, and subject to the same interpretation. Anytime a federal transportation dollar is invested in any improvement—any new road, or high-speed rail line, or pedestrian bridge, or bike trail, or airport, or seaport—that has any significant bearing on a bit of public green space, it must undergo a 4(f) review. The impact has not been to make it entirely impossible to build new infrastructure in the United States.31 Rather, the change has impacted who chooses to build what. Justice Marshall’s ruling was apiece with a whole range of other procedural changes that spread decision-making power so wide and thin that nearly anyone with an objection could exert powerful leverage over what can or can’t get done. And the question today, as we’ll see, is whether that shift has all been for the good.
In contemporary progressive lore, the nation’s urban interstates are framed almost as an unadorned evil. When Biden administration secretary of transportation Pete Buttigieg contended in late 2021 that “there is racism physically built into some of our highways,” he was acknowledging what progressives know in their bones to be true: certain routes were chosen explicitly to divide communities along racial lines.32 Perhaps as noxious, America’s mid-twentieth-century inclination to favor roads over rail and transit pointed the country to a whole slew of policies that incentivized a slate of realities contemporary progressives revile: suburban sprawl, white flight, an utter dependence on (often imported) oil, and degradation of the nation’s natural environment. Girding that antipathy is a notion that the car-dependent society we’ve inherited wasn’t inevitable, and that America’s leaders could still change things if they just summoned the requisite political will to do something different.
More than that, the seemingly retrograde infrastructure we’ve inherited isn’t in good shape. Americans returning from continental Europe, or Japan, or China almost reflexively savage America’s public works. More than a decade after then–vice president Joe Biden complained that New York’s LaGuardia Airport was like “some third-world country,” the nation’s infrastructure was still a shambles when President Joe Biden signed a law investing massive new resources in a fix.33 But why had things gotten so bad in the first place? It hadn’t always been like this.
At the turn of the twentieth century, the country’s private-sector rail networks put the rest of the world to shame. In 1916, the country boasted more track than every other nation combined.34 But therein lay the problem. As with the electric wires that private industry refused to string to poor farmers in the Tennessee Valley (see Chapter 2), the railroads of that era had not been interested in serving isolated small towns and hamlets across the countryside—the costs outweighed the potential revenue. And so progressives at the time, much to the derision of conservatives, set about crafting a plan to connect the isolated and forlorn corners of the country—the places where the railroads didn’t run. In that spirit, progressives endeavored to have government build roads.
If any single figure can be considered the father of America’s road system, it’s Thomas MacDonald, the largely forgotten civil engineer who served as something akin to the nation’s highway czar from 1919 to 1953. MacDonald was a beacon of the original progressive creed, having been trained by Anson Marston, a turn-of-the-century engineering professor who taught that scientific rigor was the key to social progress. An almost humorless figure, MacDonald rose up through Iowa’s public works bureaucracy before being hired by the federal Bureau of Public Roads, which he eventually came to run.35 Like many progressive bureaucrats, throughout his career he imagined himself as a figure removed from politics, charged with solving problems of limited mobility in disinterested, rational ways. MacDonald endeavored to impose order on chaos—to centralize scattered sinecures of roadbuilding authority so that dour engineers could make responsible decisions in the public interest.
Crucially, centralizing power in MacDonald’s vision didn’t mean locating it in Washington. During the decades he lorded over the federal Bureau of Public Roads, the nation’s road systems remained largely the province of the states, with state highway departments maintaining responsibility for tackling the formidable challenges of connecting far-flung locales. MacDonald’s mandate was simply to incentivize often bare-bones and politically captured state highway departments to approach this challenge in systematic, rational ways. While some in Washington dreamed during the 1920s about building super-roads across the country—Eisenhower famously became obsessed with improving the nation’s roads after accompanying a mud-slogged transcontinental military convoy in 1919—speeding up protracted journeys was only a secondary concern. Railroads already made it possible to get people and goods between cities. The network’s weak links were the connections from various railroad hubs to isolated farms and factories.36 Only roads could fill those gaps.
A century on, many progressives presume the federal government’s massive investment in roads served primarily to subsidize a wildly profitable automobile industry, thereby stunting the development of what might otherwise have been a robust rail economy. But in the 1920s, it was the other way around: progressives wanted to subsidize roadbuilding as an alternative to wildly profitable private railroad corporations—the Pennsylvania and the New York Central among them. In 1921, reformers managed to enact a federal-aid highway system that required Washington to pay for the construction and maintenance of no more than 7 percent of a state’s primary and secondary roads. If the money was a bounty for states, it came more directly as an inducement. To be eligible, state governments were forced to consolidate roadbuilding power in the hands of the expert officials who would begin using scientific methods to choose where the roads would be built.37 This was Hamiltonian progressivism in its early glory—but there was more to come.
By the latter part of the 1930s, as Americans began to place even greater confidence in public authority, many began to dream more seriously about a system of national highways. In 1939, the same year General Motors sponsored a Futurama exhibit at the New York World’s Fair sensationalizing expressways, the Bureau of Public Roads published a book, Toll Roads and Free Roads, exalting how modern roadways could work to fix the nation’s teeming, impoverished, and often fetid cities. As with “slum clearance,” many imagined that government could use new highways to spring those trapped in squalid neighborhoods by razing dilapidated homes and speeding access to cities from farther away.38 The progressive mandate to connect isolated places was morphing into imagining ways of fixing purportedly broken ones as well. Centralized, disinterested expertise deployed, in yet another realm, for the greater good.
But even as progressives and bureaucrats schemed for a brighter future, two major hurdles stood in the way of real progress. The first centered on how the government would lay claim to the right-of-way required to build an interstate network. From the beginning of the federal-aid system, conservatives had prohibited federal dollars from being used to acquire land—those costs, they argued, should be borne exclusively by state and local governments. That changed only ahead of the bombing of Pearl Harbor, when Congress realized that the military was struggling as a result to erect new access roads to various military installations.39 That, then, proved to be the camel’s nose under the tent—once the military began purchasing land for roads, there was no going back. In 1944, mere months before Roosevelt’s untimely death, he signed into law a bill that authorized a forty-thousand-mile “limited access” system to supplement the primary and secondary roads Washington was already subsidizing.40 Three years later, Congress passed a bill designating the routes, with the presumption that Washington would pay for the bulk of the land, in addition to the construction.41
And that then pointed to the second hurdle: funding. Roosevelt, enamored of big public authorities like the TVA, had wanted Washington to finance the new system by seizing excess land for roadways, developing the adjacent lots, and using the revenues from those developments to subsidize construction. In much the same way the TVA had competed with Commonwealth and Southern in the market for electricity, he imagined a United States highway corporation competing with local real estate firms. But for the same reason many objected to the TVA—private developers weren’t keen to compete with the federal government—the bill went nowhere.42 Others proposed financing construction through tolls, but through the Truman years, old bulls on Capitol Hill, particularly Democratic chairman of the Senate Committee on Finance Harry Byrd, scoffed at the notion that toll revenue would be sufficient to pay off the astronomical expense of interstate construction. And so Roosevelt’s Hamiltonian dream of a new interstate system remained shelved for lack of money.
The postwar economic boom changed that. Robust growth prompted more families to buy cars. And those new car owners, many of whom settled in the new suburbs, began to fulminate over the traffic building on the nation’s surface streets. So when, in 1955, the Bureau of Public Roads published what became known as the “Yellow Book” of maps sketching out where proposed new interstates were likely to be constructed, younger members of Congress began to agitate against the reluctant old bulls. What emerged was a classic legislative compromise. Per the desire for a new interstate system, Congress would authorize appropriations for their construction. But the new road system would not be funded by tolls or general revenues. Rather, the costs would be covered by sequestered gas tax receipts, and construction would commence only so fast as those coffers were filled.43 Conservatives in both parties, wary of the grandiosity of progressive intentions, felt they had protected taxpayers against Washington writing a gargantuan blank check; progressives, eager to get building already, finally received a green light.
With that bipartisan agreement in place, the bureaucratic octopus that would come to be known as “the highway lobby” was born. Road builders, auto manufacturers, oil companies, and those developing the nation’s suburbs were all, for the moment, aligned in common interest. And while viewed today by many reformers as the moment of original sin, President Dwight Eisenhower’s signing of the National Interstate and Defense Highways Act in 1956 merely marked the apex of progressive efforts to connect isolated parts of the country. This was an archetypical Hamiltonian project—an effort to centralize power such that Americans would be able to “drive from Maine to California without hitting a traffic light.”44 It was a distilled example of government solving a tragedy of the commons by pulling power up from down below. And what emerged in the decades that followed was, to both its champions and detractors, nothing short of remarkable.
America would go to the moon during the same period, and the military-industrial complex would emerge to counter communism’s global ambitions. But here, with the nation’s expressways, was an illustration of how government could alter life in ways that citizens could see and touch. The whole program, which would eventually grow from forty thousand to forty-nine thousand miles, took almost forty years to complete.45 By the late 1960s, interstates had come to occupy more than fifteen million acres of the nation’s landscape—a combined landmass roughly the size of West Virginia. And what the Wall Street Journal would eventually label the “highway-auto-petroleum complex” would come to employ 20 percent of the nation’s workforce.46
The interstate highways were, by any measure, a feat of ingenuity. But they were also a monument to the American Establishment. And not just to the powerful figures in Washington who championed the financing mechanism that made the system possible—the system vested the bulk of its authority in an octopus of state and local figures empowered to designate the routes, negotiate the purchase (or seizure) of private property, and manage the construction. And as with the alphabet soup of New Deal programs that had helped to lift the country out of the Great Depression, and the military that had defeated fascism, this was centralized power being used effectively for the greater good.
Here, as in other realms, power gave officials a remarkable degree of mostly unchecked discretion. Through the years, Establishment officials, spread across various bureaucracies in various states, were slated to take possession of more than three-quarters of a million parcels of land in the name of expressway construction.47 And to do that, they would collectively have to prevail over an innumerable slate of objections—people who didn’t want their homes, or their farms, or their parents’ graves destroyed in service of a new road. And that would mean creating a bureaucratic apparatus that could push past obstacles—giving public figures the power to bulldoze the opposition, literally and figuratively. If, as the experts had concluded, it was in the national interest to have a highway system, parochial concerns would have to be kept at bay. And despite that, the whole project initially proved popular.
Some bristled, of course—protestors in New Orleans and in Cambridge, Massachusetts, mobilized early on to thwart new routes.48 But more abject than any widespread fear that a new interstate would ruin a town or city was the concern that accompanied being bypassed.49 As in San Antonio and Memphis, the pervasive worry was that absent expeditious ways to drive around and through parts of the country, designs on growth were more remote. People wanted quick access to the interstates for fear of being left behind. And that was the entire endeavor’s core appeal: much as subsequent generations would see expressways as tools that had been used to divide America—to create barriers between neighborhoods—the notion at the beginning was that these roads would bring people together, both between and within cities. Roadways were a salve for the isolation that had prevailed in America’s past. They were imagined as nothing less than a revelation—until, that is, progressivism’s cultural aversion to power began to reframe the movement’s understanding of its once great triumph.
Progressivism’s subsequent turn against the interstate system—Buttigieg’s more recent comments about the system’s racist moorings reflect a standard critique—did not emerge overnight.50 As early as the late 1950s, the prominent critic Lewis Mumford, complaining that the highway program had been conceived more for the benefit of the “motorcar” than society, argued that “in many parts of the country the building of a highway has about the same result upon vegetation and human structures as the passage of a tornado or the blast of an atom bomb.” But to account for that destructive tendency, he didn’t propose to thwart the system’s expansion, as Jane Jacobs, Anona Stoner, and their acolytes would later demand. Rather, he wanted to perfect the new system, to better balance these major “arteries” with the “elaborate network of minor blood vessels and capillaries” that allowed humanity to circulate within cities.
Mumford’s peevishness may not have been entirely on the level. He was likely angry that the aesthetic vision he’d proposed for the nation’s expressways had been rejected in favor of a more affordable, utilitarian alternative. He had proposed, for example, that Massachusetts’s Route 128, the interstate that winds itself around Boston’s outskirts, be built with enormous parks between the lanes of traffic, thereby creating a “green belt” for public recreation. This, of course, would have required the government to seize even more land—to purchase or condemn more homes and businesses, driving an even more impenetrable barrier between those on either side of the now-widened roadway. But in the aftermath of Eisenhower signing the 1956 bill, Mumford’s frustration typified the core of progressivism’s complaint: the centralized planning was not sufficiently robust.51 Government was failing to think bigger—to be bolder.
Democrats in Washington responded to this criticism by mandating a new process. Kennedy administration officials worried less that expressway construction was doing damage than that highways, transit, and housing construction weren’t being sufficiently coordinated—that highway engineers were making decisions that failed to account for all the other changes happening simultaneously around them. They reacted by inserting into a 1962 bill a provision known as Section 134, which mandated that any urbanized area of at least fifty thousand people create and maintain, by the summer of 1965, a planning process that was continuing, cooperative, and comprehensive—the so-called three C’s.52 Here again, the administration’s primary intention wasn’t to give citizens greater voice; it was to give “experts” even more authority to manipulate the urban landscape. Progressivism’s Hamiltonian impulse remained at the wheel.53
Nevertheless, it was at this moment, as the New Left was beginning to come into its own, that the Jeffersonian impulse began seeking its level. Cracks began to emerge in the coalition that had initially supported the highway program. For one, cities and states began bickering among themselves. In most rural and suburban parts of America, county and municipal governments were not technically equipped to make the sorts of routing and engineering decisions that were integral to building an expressway, thus leaving it to state highway officials to do so from on high. But cities were more typically replete with their own engineers, and mayors often had their own ideas about where expressways should be sited.54 At the same time, corruption began to sour public perceptions of the broader endeavor. Any program of this size, scope, and expense was bound to be a target for corruption—and the schemes trickled out into public view. The chairman of Indiana’s state highway commission was caught tipping off friends who, on several occasions, purchased parcels slated for condemnation only to flip them to the government at a profit.55 Perhaps, many reformers would conclude upon closer inspection, the Establishment wasn’t quite so unimpeachable.
Washington responded—but, again, less by trying to devolve power than by attempting to perfect its Hamiltonian approach. The Bureau of Public Roads (BPR) peeled its right-of-way experts out of its engineering division, believing the shift would free these more conservation-minded lawyers and wonks to push back against engineers who were more singularly driven to keep costs down. Here was pluralism’s theory of balance in practice: if people divergently concerned about money and environmental impacts were put around a table together, Hamiltonians figured they would eventually come to a mutually agreeable solution. In 1964, BPR created a list of twenty economic, environmental, and social concerns that needed to be considered in any planning process, thus, again, trying to fix the program from on high.56
Here, the context really matters. In the immediate aftermath of the Second World War, citizens had been more inclined to bend to the Establishment’s wisdom—and engineers came to expect that audiences would react to their official presentations with oohs and aahs. But as public skepticism grew, the questions became more pointed. Community members became less pliant, and engineers became more abrasive in turn, taking umbrage when their hard work was called into question.57 It wasn’t exactly that the planners disputed that some communities would be inconvenienced by their projects; they simply took for granted that they spoke for the public interest, and that those voicing objections were selfish and small-minded. Asked about public opposition to one of his projects, Robert Moses explained: “The individual has to yield in matters of this kind to the entire country, to the advantages and needs of the majority of people.”58 Here, in mundane meetings about expressway routes and access roads, was a microcosm of the growing cultural divide pitting the Establishment against a new way of thinking. And it quickly turned nasty.
At meetings in San Francisco, protestors booed and hissed whenever anyone spoke in favor of plans to construct what would become the Embarcadero Freeway. Similar freeway revolts emerged up and down what many considered crunchier parts of the Pacific coast—Los Angeles, Seattle, Marin County.59 But the second-guessing wasn’t limited to liberal corners of the country. Iowans complained that 710 miles of interstate had devoured 26,000 acres of arable cropland. A report out of Kentucky noted that “severance”—namely the process of splitting a parcel to accommodate a road—was forcing 75 percent of affected farmers to sell stray areas of their own lots for lack of access. And residents of big cities across the country—Boston, Cleveland, Miami, and Indianapolis among them—were up in arms when confronted with plans made by imperious planners and engineers to bifurcate vibrant sections of their various metropolises.60 Perhaps, many began to believe, the nation had been naive when Eisenhower signed the Interstate Act into law in 1956. Perhaps the upside wasn’t worth the upheaval.
These new roads had been bound to be disruptive. But somehow, the toll began to be colored in a different light. A century earlier, when railroads had demanded new rights-of-way in order to run soot-belching trains through congested cities, corporations had been sensitive to the people they were inconveniencing if only because those same people were soon to become their regular customers. That wasn’t true for most highway engineers. Once they’d built their expressway, local citizens were unlikely ever to see them again. The Establishment, claiming wisdom of the greater good, was functionally removed from the citizenry—a plane above—and had no incentive to bargain.61 By 1966, Verdelle Smith’s song “Tar and Cement,” ruing what highways destroyed, rose to 38 on the Billboard chart.62 And that reflected the broader contemporaneous cultural shift. Planning, sprawl, and growth were becoming a broader menace even as the Establishment was being questioned in other contexts at the same time (see Chapter 3).63 The hostile meetings about expressway routes were not convened in a vacuum.
Unsurprisingly, many beacons of the Establishment interpreted the blowback as evidence that they needed to centralize power even further. Better planning. Wiser decisions. Savvier engineering. If experts were given greater authority to fashion their plans with fewer hurdles—if they were liberated to deliver utopia more expeditiously—the doubters could finally be made to see. So the same 1966 bill establishing the Yarborough rule rechristened the Bureau of Public Roads as the Federal Highway Administration and merged that singular bureaucracy with other transportation-related agencies under the aegis of the newly established federal Department of Transportation. This new behemoth was conceived to be a more coordinated emanation of public power. If the engineers in the bowels of these various federal agencies had, by the mid-1960s, developed a reputation for deafness to public frustration, old-school reformers imagined that putting everyone under a single roof could tamp down popular discontent. A Hamiltonian solution to a distinctly Hamiltonian problem.
The temptation to tighten the Establishment’s grip extended down to states and communities as well.64 A year before establishing the Urban Development Corporation (see Chapter 6), New York’s governor Nelson Rockefeller, frustrated that the state’s Department of Transportation wasn’t performing to his or the public’s satisfaction, directed a large portion of a $2.5 billion transportation bond to the new Metropolitan Transportation Authority. This new public authority, to be run by his loyal lieutenant, William Ronan, was established in part to make it possible for Rockefeller to build an airport north of New York City and a bridge spanning the Long Island Sound between Rye and Oyster Bay. He similarly assigned the Thruway Authority responsibility for finishing an expressway paralleling the Hudson River.65 And the subtext of all these moves was that these public authorities, purportedly more responsive to the governor, would be able to get their jobs done more expeditiously.
Perhaps, in theory, this “up and in” approach could have worked, even in the face of intensifying public frustration. But, as in other realms of public policy, the cultural aversion to power found its voice not only in community meetings but also in the courts. Vocal public opposition surely played a role in ensuring that Rockefeller’s airport and bridge were never built. But the issue wasn’t just that those whose homes stood where the runways and ramps might be laid attended forums to complain. It wasn’t just that those who worried that bridge traffic would gridlock their secluded suburbs organized rallies on the town square. Rather, by the mid-1960s, people threatened by Rockefeller’s bridge and airport schemes had new ways to leverage the power of the judiciary to stop the governor and his lieutenants from moving forward. In much the same way critics of housing developments managed to weaponize the law in service of lassoing the Establishment’s grand designs, opponents of new public works employed the same tactics. And in so doing, they illustrated how Jeffersonianism was snapping back into shape.
An early front in this battle centered on Rockefeller’s plan to build a new Hudson Valley expressway. In 1966, the same year Senator Ralph Yarborough schemed to kill San Antonio’s North Expressway, New York’s engineers were plotting the route for what would, for a time, become I-87, an interstate splicing up from New York City through affluent Westchester County. Residents of the county’s well-to-do towns were of scattered (and often self-serving) opinions about where the new highway could best be routed, some preferring an option a bit farther to the east, others the west. But no matter which route highway engineers ended up selecting, some number of New York’s toniest suburban communities were bound to be unhappy. And so, when the engineers chose their route, the suburbanites did what has subsequently become de rigueur among those united in opposition to a perceived slight from a group of outsiders: they formed an interest group. A few years earlier, even the residents of Westchester County might have been more pliant—more accepting of the government’s plans. But in 1966, residents who believed that engineers should have chosen a different route established the Road Review League. And the Road Review League then filed a lawsuit.
The core of the League’s complaint was simple: the state’s highway engineers had chosen the wrong route. And if their justification was self-interested, the group’s concerns were real enough. The chosen route would destroy a bunch of high-value property. Construction would be noisy and dirty. The finished highway was likely to bifurcate several nice neighborhoods. And perhaps most important, the engineers had been presented with other options. So the lawsuit asked the federal judge hearing the case to direct the bureaucrats to select an alternative route—to substitute his judgment for that of the engineers’. The government responded in court in the most Hamiltonian way possible, arguing essentially that ordinary citizens had no standing even to bring suit—that the legislature had endowed the executive branch with the authority to make these sorts of decisions, and that allowing citizens (and, for that matter, judges) into the process would just invite chaos.
Perhaps surprising the Establishment’s ardent defenders, Judge Edward C. McLean, a Republican who had been appointed to Manhattan’s federal district court by President Kennedy, rejected most of the government’s arguments. There was nothing in the law that precluded ordinary citizens from challenging expert decisions—they were affected by a government decision, and therefore had standing to bring suit. That said, McLean noted that no provision in the law permitted a judge to substitute his or her judgment for the experts’ determination. If a highway department took all the proper factors into consideration and reached a conclusion someone didn’t like, courts could not unilaterally substitute their judgment. Route choices were the prerogatives of the lawmaking and policymaking branches of the government, not the branch charged with interpretation. And in McLean’s estimation, New York State and the Bureau of Public Roads had, in fact, followed a reasonable process in selecting I-87’s route, so he had no grounds to set it aside.66
But in rejecting the citizens’ lawsuit, McLean’s ruling also pointed the way for aggrieved parties like the Road Review League to utilize the courts more effectively. If the government hadn’t followed the proper procedures—if, in exercising their discretion, policymakers had failed to weigh the relevant concerns properly, or had neglected to investigate the potentially adverse consequences, or had looked past impacts that should have been considered before making a decision—then a purportedly expert decision could be struck down. That sort of procedural oversight could well deem the government’s decision “arbitrary and capricious,” to use the phrase from 1946’s Administrative Procedure Act. In other words, ordinary citizens couldn’t question an expert’s discretion, but they could challenge the process the experts had used to come to their decisions.67 And that proved to be a revelation—a sliver of opportunity that opponents of various government decisions could use to wedge open closed Establishment-dominated decision-making.
By the late 1960s, highway construction was claiming 62,000 housing units nationwide each year, with the most significant impacts falling on Black neighborhoods.68 And while Hamiltonian voices were promising to build more housing to replace what had been lost through programs ranging from urban renewal to Rockefeller’s prized Urban Development Corporation (see Chapter 6), reformers were more drawn to an alternative strategy.69 Far from wanting to transfer more power up to the likes of Lyndon Johnson or Nelson Rockefeller, progressives were driven to cut the nation’s power brokers down.70 And suing over flaws in process proved to be a mechanism to do exactly that. Best yet, this particular Jeffersonian strategy did not require reformers to hatch grand schemes to repeal the programs big government was employing, or even to divine alternative ways to accomplish the big problems those big programs had been designed to allay. Using the courts, they could simply argue that even minor elements of the processes the big bureaucracies used to make even minor decisions were, for example, “arbitrary and capricious.”71 That was all the leverage they would need; here was a way to align the movement’s agenda with its cultural aversion to power.
Just a few years earlier, progressives might have chosen to address the range of complaints now before them with more purely Hamiltonian approaches. Historic buildings were being demolished; many reformers might have imagined then that the best way to preserve them was to assign a centralized bureaucracy the task of deciding when they could be demolished. Various species were seeing their habitats ruined by changes in the physical landscape—the development of new housing, of new factories, and of new infrastructure, including highways. Progressives might previously have fought primarily to create a bureaucratic star chamber sworn to decide which parcels of land could and could not be changed for fear of species extinction. Many progressives became increasingly concerned about the noise that washed over areas bisected by expressways—they might have created a centralized institution to determine when noise pollution was too much to allow a project, and how much road builders should be required to spend in order to mitigate impacts on any given neighborhood. Or, they might have created a single bureaucracy to take all these and many other issues under consideration, weigh the trade-offs, and render final decisions.
But by the latter part of the Johnson administration, this Hamiltonian approach had lost its purchase. Reformers no longer trusted centralized bureaucracies with massive grants of authority. The figures appointed to such august positions appeared inevitably prone to capture, if they weren’t crooks in and of themselves. Even if they held themselves to a higher standard, few would have imagined them giving sufficient weight to the interests of the historic buildings, or the endangered species, or the victims of noise pollution—they would have appeared more poised to rubber-stamp whatever Robert Moses or Richard Daley wanted. Even if they received the testimony of potential victims, they might set it aside, as highway engineers had been so prone to do when compelled to convene public meetings about new expressways. The salve for all these problems, many knew almost instinctually by this point, wasn’t going to be found in centralizing power, but in decentralizing it. By following the light shown by Judge McLean. By empowering individuals to challenge the process by which any given bureaucracy came to a decision.
Not that Hamiltonian strategies were excised entirely from the progressive agenda—new bureaucracies were created, and in some cases they were granted various fiats of authority. Planning boards. Landmarks commissions. Community councils. Yet the real action wasn’t in the new power now wielded by those on top, but rather in the ways that the public now could push around those with that power. The National Historic Preservation Act (1966), for example, established two seemingly centralized nodes of power: the president’s Advisory Council on Historic Preservation and the National Register of Historic Places. But the real teeth of the act were found in the requirement that any project using federal funding undergo what’s known as a Section 106 review—namely a process designed to determine whether any given change would impact a historic site, and if it would, what was being done to minimize the impact.72 And there, in that last element, was the invitation to a Jeffersonian fix: if a citizen believed that the project sponsor was not taking a historic site into proper account, or that the mitigation strategy had been cobbled together in some way that a court might view as arbitrary, capricious, or otherwise insufficient, they could now bring suit. And then a judge, rather than any centralized bureaucracy, would make a determination.
That mix of Hamiltonian and Jeffersonian reform was typical. The 1966 bill creating the Department of Transportation was designed, in theory, to centralize power—to give the president and his political appointees more direct control over the planners and engineers who had previously worked so imperiously to impose their will on defenseless communities. But that same law included the original version of the Yarborough rule. The reauthorization of highway and interstate construction in 1970 added noise to the list of issues engineers had to address, thereby opening administrative decisions to more expansive judicial scrutiny. The Endangered Species Act of 1973 purported to add authority to bureaucrats within the Fish and Wildlife Service and the National Marine Fisheries Service. But the bill simultaneously required highway engineers to minimize the impact their decisions might have on the habitats of species at risk of extinction.73 In each case, provisions that appeared to empower the bureaucracy, or to focus its mandate, served more directly to open discretionary decisions to new examination through the courts. Historic buildings, green spaces, neighborhood tranquility, endangered species—these would all be protected less by powerful figures at the top of the food chain than by outside interests holding an enfeebled bureaucracy’s feet to a judicial fire. The Establishment’s discretion was being curtailed.
Reformers could be forgiven for failing to see the significance of the shift. If you were determined simply to ensure that the gleaming old buildings in your hometown were protected from a developer’s wrecking ball—if you just wanted to prevent condos from replacing the beautiful art deco theater situated at the heart of your neighborhood’s quaint little commercial strip—you might not have had any occasion to think through any broader political implication; you would have simply just wanted to stop the Establishment in its tracks. And even those who were on the front lines of the broader debate about which sorts of policies to pursue were, at the outset, dubious about whether the Jeffersonian approach could really prevail over the long run. Joseph Sax, a committed environmental activist, referred to the whole strategy of attacking the Establishment on procedural grounds with derision as late as 1973: “I know of no solid evidence to support the belief that requiring articulation, detailed findings or reasoned opinions enhances the integrity or propriety of administrative decisions. I think the emphasis on the redemptive quality of procedural reform is about nine parts myth and one part coconut oil.”74
But Justice Thurgood Marshall’s opinion in Overton Park, taken in combination with a whole range of opinions written by, among others, two judges on the DC Circuit Court of Appeals, J. Skelly Wright and David Bazelon, fundamentally altered the dynamic. Not long after the Overton Park ruling, the Center for Science in the Public Interest published an analysis of seventy-six NEPA-mandated environmental impact statements. More than a dozen hadn’t mentioned air pollution. Nearly a fifth made no mention of noise pollution. Almost every report had failed to consider alternatives like mass transit.75 And while these oversights may have been due to nothing more than a bureaucrat wanting to get a project done with a minimum of delay, the nation’s judiciary made clear that they were grounds for upending the projects altogether.76 Passed with the best of intentions, laws designed to require that decision-makers account for consequences beyond the scope of their original intention became tools in any opponent’s toolbox.
Here, the National Environmental Policy Act of 1970 became a procedural lynchpin. Planners and engineers began to weave the full panoply of protections into the singular process of environmental review. That then streamlined the way government weighed the impacts of any project on water quality, on noise, on historic buildings, on air quality, on endangered species, on recreation, on waterway navigability, on racial dynamics—the list went on. A project that might impact electricity transmission lines and an endangered species and the fishing industry and a river’s navigability would be brought under a single rubric, with experts from all the various responsible bureaucracies working through their separate concerns. The government would then come to a decision, mitigating those concerns to the maximum extent possible, but arriving at the public interest. But then the kicker: if the process used to reach that decision was in any way defective or deficient, outsiders were entitled now to sue on the grounds that the review had been insufficient, and courts were willing in certain circumstances to shut them down.
The shift that occurred in the 1970s and 1980s is often described as cultural. In the wake of The Power Broker’s publication, Jane Jacobs–type admonitions had eclipsed the public’s tendency to accept Establishment wisdom. But perhaps more important, and certainly more everlasting, the process for doing, well, almost anything also changed.77 The old authorizations for highway planning and construction remained largely the same—state highway engineers persevered the same prerogatives to plan, erect, and maintain new roads, and the federal government still reimbursed states at much the same rate. But the underlying power dynamic had been turned on its head. Bureaucrats had once acted with impunity—now the people boasting of those same positions operated under the novel scrutiny of every detractor, almost any one of whom could bring suit on the basis of the bureaucrat’s failure to consider this or that concern with sufficient detail or scope.
Even if judges did rule in a project’s favor—and in many cases, still to this day, planners and engineers do prevail—the sheer avalanche of rigmarole narrowed the scope of what once powerful bureaucracies could ever hope to accomplish. And that was the underlying point. The once powerful bureaucrat’s burden under the new regime wasn’t to engineer a road, or a rail line, or whatever else—it was to navigate the requirements and obstacles, to create a record of each factor contributing to a decision, and to anticipate the lawsuits that were sure to be filed against any decision.78 Environmental impact statements, initially imagined at NEPA’s birth to be 150-page documents, eventually came to be volumes long, the length born of a bureaucratic desire to insulate any given decision from criticism that a concern had not been sufficiently considered. And that pushed many projects, both good and bad, beyond the pale of consideration. The old Hamiltonian approach had, of course, provided no real mechanism for community input. But the new Jeffersonian regime belabored the process beyond what many initially imagined. All the legal technicalities aside, the underlying dynamic was clear: power once wielded by the Establishment had been diffused, pushed down and out to those who might well have objected. And the open question was whether the public was well served by either extreme.
The American economy was still sluggish when New York Times reporter Peter Baker was granted an interview with President Barack Obama in the fall of 2010.79 Two months before the shellacking Democrats would sustain in the midterm elections, Baker asked the president to explain why massive federal investments he’d pushed through Congress hadn’t yet sparked a more robust economic recovery. In a seemingly contemplative mood, Obama wondered aloud how he might have handled things differently. He acknowledged that funding poured into the nation’s dilapidated infrastructure hadn’t yet pulled the country out of the economic doldrums. But, the president argued, that wasn’t for lack of effort or money. Rather, he explained, the problem was that “there’s no such thing as shovel-ready projects.”80
At the time, Obama’s complaint was interpreted as a commentary on government incompetence—the administration had provided billions for infrastructure, but the planners and engineers who would spend it hadn’t been ready to go. No one disputed that America’s infrastructure was in rough shape coming out of the Great Recession. But the problems predated the mortgage bubble’s collapse two years earlier. While other countries—most specifically China—were racing ahead with modern new roads, rails, wires, ports, and more, America seemed stuck.81 White House advisors might have imagined, upon Obama’s signing the $787 billion American Recovery and Reinvestment Act in early 2009, that the president would spend the next two years traveling the country posing for pictures with ceremonial shovels at various groundbreaking ceremonies. But it hadn’t happened.
The frustration wasn’t new. For years, progressives had fulminated that the country lacked the political will to get big projects going.82 And they’d adopted a range of theories to explain that lack of gumption. Some postulated that elected officials were too preoccupied with their next campaign to champion projects that might be completed only after they were out of office. Others theorized that elected officials were cowed by the wealthy property owners who might object, not to mention the community groups that would demand public concessions. Or perhaps the problem was just a lack of salience: public works don’t tear at the heartstrings like abortion rights and school shootings, and so progressives trained their focus elsewhere. Whatever the problem, the lack of progress had left the country lagging—and would continue to do so. China has erected more than 23,000 miles of high-speed rail. As of 2025, the United States still does not boast a single operational line, unless you count the drastically slower Acela, which runs a mere 457 miles from Boston through New York to Washington, DC.
But for all that progressives tend, still today, to ascribe their frustration to a lack of political will, the bulk of culpability clearly rests elsewhere. Robert Moses managed to remake New York’s physical landscape not just because he was determined, or manipulative, or unyielding; he succeeded because he operated during an era without nearly so many roadblocks. With power pulled up and in, Establishment power brokers had been able to work their will with relative ease. But the movement had subsequently awoken to the attendant abuses with horror, and that revulsion steered reformers back into a Jeffersonian crouch. The cultural aversion to power had driven policymakers to erect new checks, balances, and hurdles. In short, Obama’s dreams of an infrastructure bonanza weren’t spoiled by incompetence, but by design. It was impossible to get good projects going in the 2000s explicitly because it had been so easy to pursue bad projects in the decades before.
The effects of progressivism’s turn against power are evident today not just in the projects that haven’t happened but in the price paid for those that receive the green light. The cost of an average mile of interstate tripled from the 1960s to the 1980s.83 And while some of that can be ascribed to rising prices for concrete, steel, and labor, recent research suggests as much as a quarter of the increased costs had been driven explicitly by the cost of litigation.84 When Citizens to Preserve Overton Park sued to stop I-40, Anona Stoner had appeared like a judicial pioneer; now, her approach is standard fare. And while project opponents don’t always win, the new rigmarole almost invariably adds expense and time, precluding government bureaucracies and others interested in erecting or improving infrastructure from spending those dollars on other projects.85 Delay, in short, has become project opponents’ most powerful weapon.
California’s ongoing struggle to build a high-speed rail line between San Francisco and Los Angeles is a case in point.86 The route appears like a no-brainer—two large cities, a lot of traffic between them, with most travelers forced to either fly or drive. But whether or not the state’s leaders have been willing to stand behind any given route or plan, no surfeit of tenacity has proven capable of pushing through the process reforms (the California Environmental Quality Act, for example) that render stick-to-itiveness almost inconsequential. It’s simply too easy to raise objections to a route decision over environmental concerns, or whatever else. Each study, lawsuit, and adjustment drives up the cost. No one has the power to push the plan forward. And the same story prevails almost everywhere. Governors and bureaucrats today wield less power in their respective states than Robert Moses did in New York alone—and that’s not because they aren’t as driven as Moses was. It’s that reformers have purposefully clipped their wings.87
Moreover, many of the guardrails had been erected inside the bureaucracy. Environmental reviews have typically been assigned to single agencies—the Federal Transit Administration might be tasked, for example, with overseeing the evolution of a proposed new light-rail line. But other agencies within the federal government are responsible for approving the final report. The Army Corps of Engineers might have to sign off on whether a proposed bridge would interfere with ferries traversing the water below. The US Fish and Wildlife Service might have to sign off on the impact new forest track might have on an endangered species. The EPA might have to sign off on any potential impact on the local water supply. No matter how committed the executive branch as a whole might be to enhancing transit accessibility, that particular public-policy goal would be viewed as entirely secondary to bureaucracies charged with preserving navigability, wildlife, or water quality.88 And each might be subject to public-interest litigation if they failed to upend the approval.
In an era where Hamiltonianism prevailed, a single figure could have sliced through all those concerns. But in an era defined by a more Jeffersonian ethos, government is hamstrung by the process. The federal bureaucracy has tried in various incarnations to craft mechanisms for weighing competing concerns—for deciding how many homes should be taken in lieu of cutting through a public park, or how many fishing boats could lose access to a lake in service of preserving local water quality. Disagreements between the Federal Highway Administration and the Fish and Wildlife Service over a new bridge can be resolved by the Council on Environmental Quality, or the federal Permitting Council, or even the president.89 Congress can demand expedited reviews, as it did in the Fiscal Responsibility Act that President Biden signed in 2023.90 But in an environment where an increasingly beleaguered universe of bureaucrats is worried that courts will excoriate them for failing to take proper account of any among a seemingly unending list of concerns, the greater good gets lost in minutiae. Set aside the abuse wrung by Robert Moses–type figures; today, no figure is empowered to ratify a trade-off.91
Many of these guardrails have been erected for the good—the rise of various Jeffersonian protections has managed to smother a handful of bad expressway projects in the crib. Yet the new system guarantees not only that less will get done but that when projects do come to fruition they will be much more expensive. Environmental impact statements completed from 2013 to 2017 averaged nearly six hundred pages.92 In 2020, the White House Council on Environmental Quality released statistics suggesting that the average environmental impact statement takes more than four years to complete and is nearly seven hundred pages long.93 And the problem isn’t only federal. If a property owner in New York City contests a condemnation, the ensuing legal fight can today last ten years.94 The environmental assessments for Seattle’s East Link light-rail system were compelled to analyze twenty-four separate routes in great detail; in Canada, that sort of intensive study is not necessary because the environmental review process presumes that the government has determined the most effective alternative and simply seeks to minimize impact.95
These heightened costs aren’t on the margins. Recent studies have found that infrastructure costs in the United States aren’t twice what they are in South Korea—they’re more than six times as expensive.96 That disparity was particularly stark due in part to the costs of building in New York City, where the recent Second Avenue Subway demanded twenty times as much as similar projects in other global cities.97 But projects in other American cities cost on average 50 percent more than projects elsewhere. A 9.3-mile line requiring construction of a tunnel in Toulouse cost the same as a 3.2-mile project constructed at grade in Houston.98 And so no one should be perplexed as to why China has built so much more high-speed rail. Even with more money, Amtrak would need new rights-of-way to straighten its track. And all too often, the deluge of protections drives costs beyond the point of feasibility.
If the “absence of political will” is a red herring, the oft-proposed salve for the problem of community opposition may be even more invidious. As in the realm of regulation, where NegReg became a siren song for those hoping to herd stray interest groups into alignment (see Chapter 5), opponents often complain that the problems are born of bad sequencing—that ideas are sprung on stakeholders too late in the process. They imagine, somehow, that notifying people who stand to lose something important to them might have cleared the way to consensus. Infrastructure white papers often imagine that if the planners had just engaged citizens from the outset—that if the communications plan had been more thorough, or the plans had been subject to widespread scrutiny, or the engineers had engaged in a grassroots strategy to weave the community together—the process might have been smooth.99
But when the stakes are high—when, for example, a new high-speed train track is going to be installed a few blocks from someone’s home—no “give” is realistically capable of placating the opposition. A region as a whole may benefit from a new rail line—less pollution, fewer traffic jams, improved mobility, a surge in economic growth. But as is true in any tragedy of the commons, the individual neighborhoods and hamlets inconvenienced by a new line are almost sure to be worse off. No tax break, no promise of a new community center, no noise-controlling barrier is going to convince them that they should bear the burden of the broader region’s progress. Robert Moses didn’t keep his plans secret simply because he relished springing a surprise—he shrouded his intentions so as to thwart the opposition. And the same dynamic prevails today, except that those who object to a project have many more levers to pull to prevent it from moving forward.
In 1978, when Memphis mayor Wyeth Chandler testified before the Senate subcommittee on transportation about the barriers to completing I-40 through Overton Park, he made his frustration clear. Like nearly every other powerful figure in Tennessee, he worried that downtown Memphis was going to suffer without expedited access to the suburbs. But even more than his exasperation with the result, he was angry with the process. The opposition’s calls for the state to investigate alternative routes—routes, everyone knew, that would invariably require additional homes and businesses to be taken—appeared to Chandler to be little more than delaying tactics. “We need no more study,” the mayor argued. “We need no referendum. We need the legislative bodies of this Nation to review the record of unbelievable Alice-in-Wonderland-like series of planning studies, administrative hearings, public hearings… court hearings, on and on, and draft a law that gives due credence to the proposal.”100
Say what you will about that particular expressway; America’s infrastructure troubles today aren’t born primarily from the government’s failure to invest.101 The problem hasn’t been born from a lack of will, or a failure to accommodate detractors. Rather, the foundation of progressivism’s frustration, and the genesis of America’s general skepticism of government, is the reality that there are too many hurdles to clear, crosses to bear, and vetoes to avoid. Obama’s Recovery Act, for example, spawned a full 192,705 NEPA reviews.102 Is it any wonder why he couldn’t find any “shovel-ready” projects? Or that voters have been losing faith in government? Who would want to give more authority to a bureaucracy that is so utterly conflicted against itself?
Here is progressivism’s self-contained dilemma distilled to its essence. Reformers want both to build great infrastructure and to protect communities from coercive power. We want fast trains without having to cut straight rights-of-way. We want the benefits of Robert Moses without the drawbacks. We are willing to throw money at improvements, but we fear unleashing the Establishment. And rather than seek to balance these two impulses, progressivism has, through the decades, toggled between the two, letting Robert Moses–like figures run amok during one period, and then overcorrecting in the decades that follow.
From time to time through the last several decades, clear-eyed reformers have recognized that the process has become too pockmarked with veto points. And they have, on occasion, managed to strike some good blows against “red tape.”103 A bill passed in 2005 made it possible for government to pursue projects in public green spaces that had a “de minimus” impact.104 Environmental suits must now be filed in shorter order. Highway administrators have imposed new guidelines with catchy phrases like “Every Day Counts” or “One Federal Decision” in the hopes that officials will be spurred to work more expeditiously.105 Perhaps most hopefully, President Biden signed a reform in 2023 that directs bureaucracies to complete their permit reviews within two years.106 But the problem today is not born from any one law. It’s in the water—endemic to the process, to the jurisprudence, and to inertia. Most of all, it’s born from a lack of perspective.
No one who has read The Power Broker can reasonably argue for a return to the era when Hamiltonian dogma was left unchecked. But today’s Jeffersonian predicament is an oppression of its own. Rather than toggle interminably between the two impulses, progressives need now to put them in harmony. Beyond merely reforming one law because it serves as obstruction for one tranche of projects, and repealing another law because it’s a barrier to a separate set, the movement needs to grapple with the uncomfortable reality that girds policymaking: there is no process, no protection, no approach that will obviate the burdens of progress. Government should be open and transparent in seeking to understand every angle and concern. Policymakers should seek to mitigate the attendant harm. But, in the end, someone responsible to the greater good needs to be imbued with the discretion to point the way forward. A movement born in the late 1800s from a frustration that government couldn’t deliver has spent the last half century correcting for the grievous errors of centralized authority. The correction has itself become oppressive. Now, the movement needs to come full circle.