by John Marini
This extension of governmental power is compatible with the administrative state, but it cannot be understood to be within the letter or spirit of constitutional government.
Subverting Justice
The administrative state grew dramatically in the last third of the twentieth century, and it continues to expand. But despite its expansion under both parties, it has not attained legitimacy within the American constitutional order. The Constitution itself remains the source of legitimacy for those in and out of government who are opposed to the administrative state. Until the administrative state becomes legitimized, or constitutionalism delegitimized, an ongoing debate within the parties, and the electorate, concerning the desirability of expansion, limitation, or diminution of the size and scope of the federal government is almost inevitable.
Many years ago, I attempted to indicate the reasons for the failure of the administrative state to gain legitimacy within a constitutional regime of separated powers. I observed:
In a constitutional system, the powers of government are thought to be limited; in the administrative state only resources are limited. In a constitutional regime, the most important political questions are those of principle or public right and how to achieve a common good (or justice); in the administrative state the most important questions revolve around money and finance (or entitlements). The constitutional system attempted to embody the principles of republican government into a structure of democratic institutions accountable to the people. Although the institutions were separated, and constituencies and perspectives differed, each branch participated in defining and pursuing the common good.23
The administrative state has undermined the capacity of our institutions to pursue the public interest. Congress has delegated political authority to unaccountable knowledge elites in the bureaucracy who are shielded from the popular control that might be exercised through elections. It has forced the unelected branch of government, the courts, to enter the policy arena to determine the legality of administrative decisions made by agencies that have no constitutional authority. In legitimizing the policies of agencies, the unelected courts have protected the political branches from responsibility for policies that are derived almost exclusively from the administrative process. Even when these policies are deeply unpopular, the electorate has no access to the centers of power in the administrative state that make the policies.
In short, the administrative state reflects a concern with administrative detail rather than principle, rulemaking rather than lawmaking, and the attempt to placate every private interest rather than the obligation to pursue a common good. In these ways, it subverts the aspiration for the fundamental ideal of government, that which makes human community possible: the desire for justice. As James Madison noted, “Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.” When justice ceases to be the end of government, the natural rights guaranteed by the Constitution, and liberty itself, become ever more precarious. Nonetheless, all is not well within the administrative state. It seems that all modern bureaucratic governments are faced with the paradox of being less able to govern, the more completely they try to administer the social and economic details of life in society.
3
Donald Trump and the American Crisis
CHARLES KESLER’S ESSAY, “Trump and the Conservative Cause” (Spring 2016 CRB), is a model of conservative analysis. His moderate criticism of Donald Trump is surpassed only by his even more moderate defense of Trump. Kesler, of course, had little difficulty in deflating the most outlandish claims of Trump’s critics. But he found it much harder to praise Trump. Like most contemporary political analysts, Kesler is well aware of the difficulty—if not the danger in some circles—of even defending Trump. Kesler is right to be wary. Trump has aroused more raw political passion than any candidate in recent memory.1
Since the end of the Cold War, American leaders have understood their offices in terms of global and administrative rule, rather than political rule on behalf of the American people and the sovereignty of the American nation. Yet those offices were established on the foundation of the moral authority of the people and their Constitution. Once elected or appointed, politicians and bureaucrats have utilized their will, in both domestic and foreign policy, in an unrestrained manner on behalf of bureaucratic rule. They govern on the implicit premise of elections as plebiscites, but it is no longer clear who confers the legitimacy of an electoral mandate. Bureaucratic rule has become so pervasive that it is no longer clear that government is legitimized by the consent of the governed. Rather it is the consent of the various national—and often international—social, economic, political, and cultural interest groups that determine the outcome of elections. True political rule requires, at a minimum, the participation of citizens in their own rule, even if not in government itself. But this is possible only when people understand themselves as citizens and when the regime recognizes them as citizens. This requires distinguishing American citizens from all others and identifying them as one people.
American elections have increasingly been framed by Washington professionals. Social scientists, media pundits, and policy professionals may tilt liberal or conservative and may differ in their party preferences, but they are united in their dependence upon intellectual authority, derived from empirical science and its methodology, in their understanding of politics and economics. At the same time, historicism or (critical theory) has established itself as the closest thing to a public philosophy when it comes to understanding history, society, and culture. Applied to elections, the empirical method required that politics be understood in terms of measurable and quantifiable aggregates. This proved compatible with the positivist understanding of law and interest-group liberalism.
Critical postmodern theory established personal autonomy and group diversity as central to what is morally defensible in terms of public policy. As a result, political partisanship and analysis has focused on race, class, gender, and other such demographics, to provide the kind of information that has become central to the shaping and predicting of elections and to legitimize dividing the electorate into categories that came to be understood in moral terms. Consequently, political campaigns have made a science of dividing the electorate into groups and reassembling them as voting blocs committed to specific policies and issues denominated by the demographic categories themselves. This strategy requires the systematic mobilization of animosity to ensure participation by identifying and magnifying what it is that must be opposed. Appeals to the electorate are strategically controlled by the experts. Which issues are allowed to be raised seems to be more important than the manner in which they are packaged and sold to the electorate.
Understood in this way, what is central to politics and elections is the elevation of the status of personal and group identity to something approaching a new kind of civil religion. Individual social behavior, once dependent on traditional morality and understood in terms of traditional virtues and vices, has become almost indefensible when judged in light of the authority established by positivism and historicism. Public figures have come to be judged not as morally culpable individuals, but by the moral standing established by their group identity. Character is almost unrecognizable and no longer serves as the means by which the people can determine the qualifications for public office of those they do not know personally. As a result, it is difficult to establish the kind of public trust that made it possible to connect public and private behavior, or civil society and government. When coupled with the politicization of civil society and its institutions, the distinction between the public and the private or the personal and the political has almost disappeared. Anything and everything can become politicized, but things can only be understood and made intelligible—or made politically meaningful—when viewed through the lens of social science and postmodern cultural theory. In short, the public and private
character of American politics has been placed in the hands of the academic intellectuals.
Kesler focuses his defense of Trump on the observation that Trump alone has succeeded in making political correctness a political issue. Kesler knows that political correctness poses a problem not only for politics, but for intellectual life as well—that it is a problem for the university as well as for civil society. Regardless of his motives, therefore, Trump has gone to the heart of the matter and made a political issue of these intellectual and social crises. Trump has not attempted a theoretical justification for doing so. That remains to be made by the thinkers. Such a justification begins by recognizing that when Progressivism was confident of itself, it understood the past as rational and as providing light for the way to a glorious future. When progressive intellectuals lost confidence in the idea of progress and Enlightenment reason, they abandoned the hope of a future good and began to revise the meaning of the past. When Nietzsche analyzed the malady posed by historicism’s abandonment of its rationality, he came to realize that “the excess of history has attacked the plastic powers of life; it no longer understands how to avail itself of the past as hearty nourishment.”2 The politics of our time is dependent upon how we avail ourselves of the past—whether as “hearty nourishment” or as a life-threatening poison.
Postmodern intellectuals have pronounced their historical judgment on America’s past, finding it to be morally indefensible. Every great human achievement of the past—whether in philosophy, religion, literature, or the humanities—came to be understood as a kind of exploitation of the powerless. Rather than allowing the past to be viewed in terms of its aspirations and accomplishments, it has been judged by its failures. The living part of the past is understood in terms of slavery, racism, and identity politics. Political correctness arose as the practical and necessary means of enforcing this historical judgment. No public defense of past greatness could be allowed to live in the present. Public morality and public policy would come to be understood in terms of the formerly oppressed.
In this light, it is not surprising that Trump is seen not only as the enemy of political correctness, but as the enemy of those whose intellectual lives have been shaped by positivism and historicism. Trump is not an academic or an intellectual. He seems to understand politics in an old-fashioned way. He appeals to the people as citizens and Americans, on the assumption that the people establish the legitimacy of parties and elections. He rejects the authority of the professionals and insists that he is interested in unifying the country. He claims to do so by appealing to a common good. Of course, it is not easy to appeal to a common good when so much of the country has come to understand itself in terms of its diversity. In such a time, an appeal to American citizenship is itself almost a revolutionary act, because it requires making a distinction between citizens and all others. Along the same lines, Trump has appealed to the rule of law and has attacked bureaucratic rule as the rule of privilege and patronage on behalf of social, economic, foreign policy, and political elites. This appeal is made difficult by the fact that the administrative state has fragmented, isolated, and infantilized the people by undermining or destroying the institutions of civil society. In these terms, the success of Trump’s campaign will depend upon the American people’s ability to still recognize the existence of a common or public good.
■ ■ ■
Since local politics and administration came to be centralized within the administrative state, elections have provided the people their only possibility of participation in public life. Politics at the state and local level, along with the private institutions of civil society, took on a new face after administration was centralized. It wasn’t long before the brightest and most ambitious college faculty and graduates began gravitating to Washington, DC—the new center of economic, social, and political decision-making. In turn, the federal government and bureaucratic apparatus became dependent upon the intellectual elites to provide expertise. But what to do with the people who participate in politics only as citizens? In terms of elections, the old partisans of both parties—the party pros who had devoted their life to trying to understand politics in terms of mobilizing the people—were no longer needed once partisan appeals could be marketed like any other commodity. Both political parties have benefited from the kind of predictability made possible by the incorporation of scientific professionalism in the organizing and shaping of campaigns and elections.
In addition, both parties have participated in recognizing the legitimacy of the cultural narrative established by postmodern theory—and enforced by political correctness—as the ground of understanding civil society, public policy, law, and bureaucracy itself. Before the end of the twentieth century, contemporary politics had created an equilibrium agreed on by both parties and underwritten by the intellectual authority of positivism and historicism. This equilibrium has functioned as a new kind of iron law of politics: there are Red States and there are Blue States and there are a handful of Purple (or battleground) States. Political conflict could be contained by focusing on the latter. Elections were understood in terms of division rather than unification, and it became almost impossible for any candidate to appeal to the electorate on behalf of a common good. That is not surprising, because positivism and historicism had rejected any understanding of the meaning of a common good. Modern American politics had become intelligible only from the perspective of positivist social science and postmodern historicism or Progressivism, both of which begin and end with interest-group diversity and individual autonomy.
Trump appears to have understood that the political parties no longer establish a meaningful link between the people and the government. Party patronage has been replaced by bureaucratic patronage, and a professional elite has established itself as the vital center between the people and the government. The authority of that elite cannot be understood simply in terms of social, economic, or even political power. What unites the vital center—what establishes its prominence and legitimizes its public authority—is knowledge. Members of the vital center understand the world through their attachment to their professions: academia, science, economics, business, media, entertainment, and even religion. They often lack political consciousness of themselves as a class. Many of them do not even think of themselves as political. Their interest and loyalty are to what it is they profess to study and what they think they know, and what establishes their intellectual and political authority is their production of what is seen as useful knowledge in the administrative state. Indeed, it could be said that without the policy sciences, the administrative state would be almost impossible to operate. It is the technical requirements of the modern administrative state that have made it possible to politicize the elites in a manner that disguises their political role. When nearly every social, economic, scientific, religious, and political problem is decided in a bureaucratic or legal way—and always from a central authority, usually Washington, but sometimes New York or one or two other places—the professional elites are given a stake in the political and bureaucratic world. Trump has apparently refused to acknowledge the authority of this policymaking establishment and in doing so has perplexed nearly all of the public intellectuals, both liberal and conservative. In refusing to allow the established vital center to mediate the political debate, he has gone directly to the people. And so doing, he has made it nearly impossible for the vital center to condone or even attempt to understand—let alone praise—his candidacy.
In a popular election, a rousing rhetorical defense of a political candidate is nearly impossible when those who have held political offices and attained social respectability are unable to praise the candidate. In the attempt to evaluate Trump, liberals have judged him from the perspective of postmodern culture, labeling him a reactionary racist, a nationalist, and a xenophobe. Conservatives have not objected to this postmodern characterization of Trump; they have simply tried to add a conservative twist by seeking to revive the old language of character, vir
tues, and vices—as though this language still has a public or political meaning! Unable to politicize a language that no longer resonates even with the libertarian or economic conservatives, their moral judgments could only be interpreted in terms of self-interest—a concept still relevant in contemporary discourse.
This was not always the case in American politics. A political discourse once existed that understood itself in terms of principles of public right, and the stewards of public office were once judged by nonpartisan standards that presupposed virtues such as honesty, integrity, character, and honor. It was an agreement on the need for such virtues that made it possible to entrust those offices to political partisans and to distinguish theoretical and practical reason or prudence. While it was possible to agree on abstract principles, it was also possible to disagree on the practical way those principles were to be accommodated with respect to contemporary circumstances. Policymaking was not understood in terms of expertise, nor had technical knowledge replaced the prudential judgment of the politician. Moreover, a public language still existed that made it possible to agree on what kind of public and private behavior was praiseworthy or blameworthy. But that old language was dependent upon a reasonable and objective understanding of virtue and vice. Such language eludes us in an age when subjective values have replaced public and private virtue, and when principles are merely subjective policy preferences that are defined and defended simply by being nonnegotiable.
Although it is easy to blame Trump for politicizing the personal—by ridiculing those who seek and hold public office—this was his way of connecting with people who had become mere spectators, not citizens, when it comes to Washington politics. Perhaps he did so because there had been no honest evaluation of Washington that originated in Washington: no policy ever really fails, private corruption never rises to the level of public corruption (let alone is punished), no officeholder of significance has been held personally responsible for their behavior since Watergate. Ironically, it has taken a reality television star—one who knows the difference between the real and the imagined—to make reality a political issue with respect to Washington.