by John Marini
Will or Reason: “It is nearly impossible, theoretically or politically, to comprehend the distinction between the government and the Constitution”
America still has a written constitution, but it is nearly impossible, theoretically or politically, to comprehend the distinction between the government and the Constitution. Therefore, it is difficult to conceive of any rational limits on the power of government that can be derived from the Constitution. The theoretical foundations of social compact theory have been so undermined as to make constitutionalism obsolete as a political theory. The Progressives insisted that rights and freedom could not be understood as natural or individual, but social and dependent upon historical development. One important American Progressive thinker, Mary Parker Follett, who published The New State in 1918, outlined the new Progressive understanding of freedom and rights that is worth quoting at length for its clarity:
Democracy has meant to many “natural” rights, “liberty” and “equality.” The acceptance of the group principle defines for us in truer fashion those watchwords of the past. If my true self is the group-self, then my only rights are those which membership in a group gives me. The old idea of natural rights postulated the particularist individual; we know now that no such person exists. The group and the individual come into existence simultaneously: with this group-man appear group-rights. Thus man can have no rights apart from society or independent of society or against society. Particularist rights are ruled out as everything particularist is ruled out.… The truth of the whole matter is that our only concern with “rights” is not to protect them but to create them. Our efforts are to be bent not upon guarding the rights which Heaven has showered upon us, but in creating all the rights we shall ever have.… [As] the group process abolishes “individual rights,” so it gives us a true definition of liberty. We have seen that the free man is he who actualizes the will of the whole. I have no liberty except as an essential member of a group.… We see that to obey the group which we have helped to make and of which we are an integral part is to be free because we are then obeying ourself. Ideally the state is such a group.10
Progressives were confident that the replacement of natural right (philosophy) by History would make it possible to establish the conditions for the replacement of politics and religion by an uncoerced rational society. Political life and religion must vanish to enable the perfecting of economic and social conditions through the establishment of the new social sciences, thereby opening up the possibility of complete freedom, or individual self-fulfillment. The coming into being of the rational or administrative state is possible, and necessary, only at the end of History, when the rule of the philosopher or statesman can be replaced by the rule of organized intelligence, or bureaucracy.
The American Founders had derived the moral law from the laws of nature, or metaphysical reason. Nature and reason had established the theoretical and moral foundation of individual rights. Thus, freedom was necessarily subordinate to the moral law; rational limits on individual freedom were imposed by nature itself, by the natural human desire for happiness. As a result, the mind, human intelligence, and happiness were thought to be the possession of individual human beings. In his criticism of the liberalism of the Founders, John Dewey observed the problem posed by the doctrine of natural right:
The earlier liberals lacked historic sense.… It blinded the eyes of liberals to the fact that their own special interpretations of liberty, individuality and intelligence were themselves historically conditioned, and were relevant only to their own time. They put forward their ideas as immutable truths good at all times and places; they had no idea of historic relativity, either in general or in its application to themselves.11
Dewey insisted that while earlier liberals recognized the “public function of free individual thought and speech,” they persisted in “defending liberty of thought and expression as something inhering in individuals apart from and even in opposition to social claims” (emphasis mine). In Dewey’s opinion, the new “liberalism has to assume the responsibility for making it clear that intelligence is a social asset and is clothed with a function as public as is its origin, in the concrete, in social cooperation.”12
In the new social and scientific understanding, freedom cannot be thought of in terms of natural or rational limits on human behavior. Nor can it be understood in terms of “immutable truths” as the foundation of individual intelligence, rights, or happiness; but only in terms of “historic relativity” and the progress of social intelligence. It is social mind, not human nature, that established and revealed social reality as historically conditioned. Therefore, it is the progress of social mind, or social intelligence, derived from the ongoing consciousness of its freedom, that must reveal and establish merely relative, or historic, but nonetheless scientific truth as well. In the twentieth century, the new disciplines of the social sciences, the positivism that provided the scientific foundation for the study of law, would become the applied sciences of the rational or administrative state. These were founded on the historicist assumption that evolving consciousness of freedom, or will, would establish the intellectual and moral foundations of each historical epoch. As Roscoe Pound noted in his revealing theoretical work, An Introduction to the Philosophy of Law (1922),
The limitations on human activity … got their warrant from the inherent moral qualities of men which made it right for them to have certain things and do certain things. These were their natural rights and the law existed simply to protect and give effect to these rights. There was to be no restraint for any other purpose. Except as they were to be compelled to respect the rights of others, which the natural man or ideal man would do without compulsion as a matter of reason, men were to be left free. In the nineteenth century, this mode of thought takes a metaphysical turn. The ultimate thing for juristic purposes is the individual consciousness. The social problem is to reconcile conflicting free wills of conscious individuals independently asserting their wills in the varying activities of life. The natural equality becomes an equality in freedom of will. Kant rationalized the law in these terms as a system of principles or universal rules, to be applied to human action, whereby the free will of the actor may co-exist along with the free will of everyone else. Hegel rationalized the law in these terms as a system of principles wherein and whereby the idea of liberty was realized in human experience.13
Consequently, given the metaphysical turn after Kant and Hegel, the ground of political right, equality, and liberty must originate in freedom or will; not nature or reason. Once the Constitution came to be understood only in legal terms, and positivism established the foundation of law in legitimizing will, it became nearly impossible to make a rational defense of constitutionalism. As Harry V. Jaffa has written,
For what is most important about left- and right-wing jurisprudence today, is not that they are of the Right or of the Left, but that they are “result oriented.” Their so-called principles are not in their premises but in their conclusions. They differ in the particulars of their “value judgments,” but not in the subjectivity of what they propose as the ground of constitutional law. Calling their subjective preferences “traditional morality” [or original intent] on the one hand, or “human dignity,” in the other, does not make them less “value judgments,” or less subjective. But if the basis of law is believed to be subjective, then the basis of law is believed to be will, not reason. The goal or perfection of the law, according to the whole tradition of Western civilization, is that it should be, in Aristotle’s words, “reason unaffected by desire.” This is what law means, according to the natural rights and natural law teaching of the Declaration of Independence. But law that rests upon nothing but “value judgments” is desire unaffected by reason.14
In denying the authority of reason, law itself, in the service of will, came to be understood in terms of social reconstruction. When coupled with the method of positive science, the state and its government provide the possibility of the o
ngoing transformation of society and man.
In 1914, Roscoe Pound, soon to be the influential dean of Harvard Law School, noted that law
in its insistence upon abstract equality and security for the maximum of individual self-assertion it took no account of the moral worth of the concrete individual. Hence an infusion of ideas from without has come to be necessary, as before, and such an infusion has been going on through the absorption of ideas developed in the social sciences.15
Consequently, Pound insisted upon a
philosophy of law stated in terms of can, not in terms of can’t. It calls for a legal science which constructs as well as observes, for a legal science that observes in order that it may construct. It calls for a definite, deliberate, juristic program as part of an intelligent social program, and expects that program to take account of the maximum of human demands and to strive to secure the maximum of human wants.16
Pound insisted, therefore, that “the science of law is a science of social engineering having to do with that part of the whole field which may be achieved by the ordering of human relations through the action of politically organized society.”17
Pound was well aware that intelligent social action must depend upon the scientific method and the technical knowledge generated in the graduate universities and law schools—institutions supported by the state. The social sciences and the scientific understanding of law were meant to replace the authority of theology and metaphysics—the authority that had established the foundations of constitutionalism. As the applied sciences of the state, the new sciences would provide the expertise necessary to carry out the will of the people. But for this to work, the people and their representatives would have to give up their reason so as to enable the social scientists to carry out their will. In short, they must give up the right to rule themselves.
Consolidating the Administrative State
America was among the last modern industrialized societies to rationalize politics by centralizing administration in the national government. It had become a great and powerful nation before it centralized administration in the national government. The consolidation of the administrative state was not the result of technological or historical necessity. It was an act of political will. The Constitution and its separation of powers as well as the politics of federalism had inhibited Washington from achieving such centralization. The progressive intellectuals had advanced the theoretical doctrine of the administrative state, and Roosevelt’s New Deal attempted to expand and legitimize the administrative state. However, the administrative state was not institutionalized in any permanent way until the Great Society. When that task was accomplished politically, by the transformation of the central political branch of government, Congress, the constitutional separation of powers and the federal system were fundamentally altered.
At the beginning of the twentieth century, the Progressives looked to the presidency, through leadership of the political party, as the institutional means to overcome the constitutional separation of powers. Presidents of both parties had fought to aggrandize the administrative component of government, pushing Congress to expand the executive branch. Congress, representative of local interests and still tied to state power, was reluctant to do so. It remained a defender of decentralized administration. In 1965, Samuel Huntington noted that Congress could not function as a national institution because, administratively, it represented parochial and state interests. As a result, he insisted that the presidency had become the dominant force in American national politics. As Huntington observed, “today’s ‘aggressive spirit’ is clearly the executive branch.” The loss of power by Congress, he suggested,
can be measured by the extent to which congressional assertion coincides with congressional obstruction. This paradox has been at the root of the “problem” of Congress since the early days of the New Deal. Vis-à-vis the Executive, Congress is an autonomous, legislative body. But apparently Congress can defend its autonomy only by refusing to legislate, and it can legislate only by surrendering its autonomy.… Congress can assert its power or it can pass laws; but it cannot do both.18
Apparently, Huntington assumed that administrative centralization was necessary and perhaps inevitable.
There was another option. Congress could adapt itself to the requirements of a centralized administrative state. But only if it gave up its power to refuse to legislate, which would require it to relinquish its primary function of deliberation, or public reasoning. Between 1968 and 1978, Congress passed more regulatory legislation in a decade than it had done in the whole prior history of the nation. It created new agencies, such as the Environmental Protection Agency, Occupational Safety and Health Administration, and the Consumer Product Safety Commission, to administer those laws. It required the wholesale delegation of lawmaking power to those newly created administrative and regulatory bodies, whose authority was dependent upon technical, or rational, knowledge. Congress could retain its autonomy as the central political body by establishing itself as the overseer of the executive branch and the regulatory bureaucracy. In the process, individual committees and members were empowered to oversee the various departments and independent agencies of the executive branch. They would soon become major players in the administrative policymaking process and would force the courts into the policymaking arena as well. Subsequently, Congress became, primarily, an administrative oversight body, which required greatly increasing its own technical staff. And it established itself as the keystone of the Washington establishment.
Until the mid-1960s, the American regime was centrally governed, but it was still administratively decentralized. Congress concerned itself primarily with the broad and general interests of the nation, and it functioned as a deliberative and representative lawmaking body. Private or specialized interests were brokered in the economic marketplace or administered at the state and local level of government. The general interests of government could be articulated, and partisan compromises could be accommodated within the political branches. This was so because the administrative functions of the national government were few, as were the organized constituencies allied to those functions. After the centralization of administration, the operation and interests of the executive and the legislative branches were fundamentally transformed. The role of the parties was also diminished because bureaucratic patronage would become more important than party patronage. In addition, the function of the judiciary had to be transformed. The bureaucracy has no constitutional authority, but it was given enormous power by the political branches. In the administrative state, the courts have been required to enter the policymaking process, as the final arbiters in the adjudication of cases arising in the administrative process. As a result, they have become fundamental players in the political and policymaking process.
By 1975, the characteristic activity of the federal government—and the legislature—had become the regulation or the administration of the details of the social, political, and economic life of the nation. Such a development could only strengthen the organized interests and their ties to the legislature, at the expense of executive control of the details of administration. Even the most sympathetic observers of congressional power did not fail to notice the change. James Sundquist of the Brookings Institution noted then:
As members become managers of professional staffs, the chambers disintegrate as “deliberative bodies” in the traditional sense of legislators engaged in direct interchange of views leading to a group decision.… With each passing year, the House and Senate appear less as collective institutions and more as collections of institutions—individual member-staff groups organized as offices and subcommittees.19
To the extent that Congress is still tempted to make laws, it does so primarily on behalf of the expansion of the administrative state. For example, Congress passed what appeared to be a general law concerning health care reform, the Obama administration’s Patient Protection and Affordable Care Act (Obamacare). But it is clear that t
his is not a law in the constitutional sense. It makes sense only within the context of an administrative state. The health reform bill was more than 2,500 pages long. But it was not a general law; rather, it established the legal requirements that would be necessary to ensure that the administrative apparatus would have the power to formulate the rules that would govern health care. As Charles Kesler wrote,
When our founders thought about law, they often thought along the lines of John Locke, who described law as a community’s “settled standing rules, indifferent, and the same to all parties,” emphasizing that to be legitimate a statute must be “received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies” between citizens.20
As Kesler noted, you cannot “find any ‘settled, standing rules’ or a meaning that is ‘indifferent, and the same to all parties.’” In fact, he suggests that is the point of such legislation:
They operate not by setting up fences to protect each man’s liberty. They start not from equal rights but from equal (and often unequal) privileges, the favors or benefits that government may bestow on or withhold from its clients. The whole point is to empower government officials, usually unelected and unaccountable bureaucrats, to bless or curse your petitions as they see fit, guided, of course, by their expertness in a law so vast, so intricate, and so capricious that it could justify a hundred different outcomes in the same case.21
As a result, Kesler insisted that
a government of equal laws turns into a regime of arbitrary privileges. A “privilege” is literally a private law. When law ceases to be a common “standard of right and wrong” and a “common measure to decide all controversies,” then the rule of law ceases to be republican and becomes despotic. Freedom itself ceases to be a right and becomes a gift, or the fruit of a corrupt bargain, because in such degraded regimes those who are close to and connected with the ruling class have special privileges.22