by John Marini
Indeed, in recent years, Washington has presented itself as a kind of reality show. It is difficult to distinguish what is real from the way it is spun. Benghazi was just one example of the unwillingness of the Washington establishment to denounce deception in a political matter. Trump was willing to denounce the deception by passing personal judgment on those policies, personalities, and issues, and he was willing to judge them as personally accountable. Moreover, Trump is understood personally and not politically, because he has never held political office. He is primarily vulnerable to criticism on the ground of his personal behavior, one leading aspect of which is a lack of respect for office seekers and officeholders and their policies. As a result, it has become difficult to judge Trump politically or in terms of the past. In short, Trump cannot be properly evaluated in political terms.
It is not surprising, therefore, that few are willing or able to praise Trump in an unqualified manner. Insofar as Trump has refused to “walk on paths beaten by others,” as Machiavelli would say, “he has all those who benefit from the old orders as enemies, and he has lukewarm defenders in all those who might benefit from the new orders.” But it is not “fear of adversaries” alone that makes it difficult to bring about change, Machiavelli writes, but “the incredulity of men, who do not truly believe in new things unless they come to have a firm experience of them.” In our post-Machiavellian age, which is open to every kind of novelty, we are faced with a new kind of incredulity—one that prevents men from believing in the old things of which they no longer have any experience. It has become far easier for modern man to accept change as something normal, almost natural. What has become difficult to understand, let alone preserve, are things that are unchanging or eternal. History, understood in terms of the idea of progress in politics, economics, science, and technology, has made change, or the new, seem almost inevitable. As a result, the desire for the newest has become almost irresistible.
When Lincoln was faced with the dilemma of understanding what must be preserved and what can be changed, he had to come to grips with the meaning of conservatism. He did so at a time when not only the understanding of the unchangeable—that is to say, self-evident truth—but also its political meaning had been denied. And Lincoln, who was charged by his enemies with being a revolutionary, did not defend himself as a conservative. As he noted in his Cooper Union speech, “You say you are conservative—eminently conservative—while we are revolutionary, destructive, or something of the sort. What is conservatism? Is it not adherence to the old and tried, against the new and untried? We stick to, contend for, the identical old policy on the point in controversy which was adopted by our fathers who framed the Government under which we live; while you with one accord reject, and scout, and spit upon that old policy, and insist upon substituting something new.” Lincoln noted that his opponents were unanimous in their defense of the new, despite their disagreement concerning what the new policies should be. “True, you disagree among yourselves as to what that substitute shall be,” he said. “You are divided on new propositions and plans, but you are unanimous in rejecting and denouncing the old policy of the fathers.” Is not the contemporary understanding of politics, as made intelligible only in terms of historicism, the modern confirmation of the fact that there is general agreement between liberals and conservatives because both have rejected “the old policy of the fathers”—that is, natural right itself?
In contemporary politics, both liberals and conservatives are necessarily open to the new. But in many of the most important ways, they have rejected the old policy of the fathers. True, conservatives have not yet seen fit to denounce the fathers. But how much of the legacy of the fathers do they still find defensible? Lincoln was aware that the only proper defense of the tried and the true—of tradition—was a defense of the unchanging principles of political right understood in terms of an unchanging human nature. This presupposed a distinction between theoretical and practical reason, which made it possible to distinguish unchanging principles from policies that must change according to circumstances. This understanding assumed the benevolence of nature and nature’s God, as well as the capacity of human reason to comprehend and impose those rational limits on human freedom that are necessary to ensure human happiness. It is only if the old can also be defended as the good that conservatism, or the tried and the true, can remain a living thing. The historicist understanding of freedom purports to reveal that nature itself is tyrannical and has attempted the self-destruction of philosophic reason by liberating the creative individual from the chains imposed by nature and reason. Identity is something that must be freely chosen and self-created by the individual alone, and it must be defended by government and law in civil society. Social institutions dependent upon the old morality have become intellectually indefensible. In terms of contemporary social and political thought, it is the good understood as the old that is no longer defensible, and its political defense has therefore become untenable. This alone makes the defense of reasonable conservatism—and constitutionalism itself—something akin to the defense of a dream that masquerades itself as reality in the minds of its votaries.
The public good, once thought to be a legacy of the best that had been inherited from the past—including the American Founding, the Declaration of Independence, and the Constitution—is not easily defended politically because it has been undermined intellectually. The most controversial aspect of Trump’s campaign, his slogan to “Make America Great Again,” goes to the heart of the problem. Trump’s view presupposes that the old America was good and established the conditions for its greatness. Is this true? Or is America something to be ashamed of, as the protesters against Trump have insisted, having accepted the teaching of postmodern cultural intellectuals? Trump’s defense of the old America goes unrecognized by conservatives, either because they have succumbed to the postmodern narrative or because Trump is unable to make the intellectual case for the old America. Thus, the intellectuals stand almost to a man against him.
It is possible that the Trump phenomenon cannot be understood merely by trying to make sense of Trump himself. Rather, it is the seriousness of the need for Trump that must be understood in order to make sense of his candidacy. Those most likely to be receptive of Trump are those who believe America is in the midst of a great crisis in terms of its economy, its chaotic civil society, its political corruption, and its inability to defend any kind of tradition—or way of life derived from that tradition—because of the transformation of its culture by the intellectual elites. This sweeping cultural transformation occurred almost completely outside the political process of mobilizing public opinion and political majorities. The American people themselves did not participate or consent to the wholesale undermining of their way of life, which government and the bureaucracy helped to facilitate by undermining those institutions of civil society that were dependent upon a public defense of the old morality. This great crisis has created the need for a Trump, or someone like Trump, and only those who recognize it as a crisis can be receptive to his candidacy. To be clear, the seriousness of the need does not mean that the need can be satisfied, perhaps even by a Lincoln, let alone a Trump. Nonetheless, Trump has established his candidacy on the basis of an implicit understanding that America is in the midst of a crisis. Those who oppose him deny the seriousness of the crisis and see Trump himself as the greatest danger. And here again, Trump’s success will likely depend upon his ability to articulate the ground of a common good that is still rooted in the past—a common good established by a government that protects the rights of its citizens in a constitutional manner and establishes limits on the authority of government by demanding that the rule of law replace that of bureaucratic privilege and status.
Trump may or may not succeed in becoming president of the United States. All of those who have a stake in preserving Washington as it now exists are his enemies, and the public that is drawn to him is fickle. Much will depend upon the ability of the established order,
which has authority and respectability on its side, to erode the trust that Trump has built with the constituency he has created. In any case, the need that brought Trump to the fore will not disappear with Trump’s demise. Few serious policy analysts took Trump seriously. Like the Soviet experts who did not foresee the collapse of the Soviet Union, policy experts have failed to anticipate, or even detect, the crisis of America. Trump’s success has revealed that one of our fundamental tasks—a task he has addressed when no else would—is the need for political rule to be reanimated in a way that allows public opinion, understood to arise in the creation of constitutional majorities, to establish the legitimacy of politics, policy, and law, in a manner compatible with the rule of law and the common good. That requires revitalizing the meaning of citizenship and reaffirming the sovereignty of the people and the nation. It also requires the restoration of the link between the people and the political branches of the government, so that both can become the defenders of the Constitution and the country.
PART TWO
THE ADMINISTRATIVE STATE IN PRACTICE: CONGRESS AS THE ENABLER
By Ken Masugi
As we saw in Part 1, Marini’s case for the deconstruction of the administrative state rests on arguments based on political philosophy, constitutional development, and, above all, commonsense judgment about the politics of free men and women and its requirements. In Part 2, “The Administrative State in Practice: Congress as the Enabler,” Marini’s essays describe how Congress legislated away its constitutional function to the administrative state: President Woodrow Wilson devised the rationale for the change from separation of powers to government by experts. Political science thus replaced political judgment. Then came the Great Society’s constitutional transformation. Congress lost the will to legislate and became facilitators of the administrative state. We know the result as the phenomenon of bureaucratic government, and everyone knows about its growth, power, inefficiencies, and capture by constituencies that were supposed to be regulated. The latter are well-studied and are not Marini’s themes.
Marini’s interest is in the administrative state as a separate form of government that calls into question the foundations of constitutional government. He also examines how even the judiciary, advocated by many as a check on bureaucratic excesses, takes on certain traits of the administrative state in its willfulness and distance from popular restraints. As for the interests of the two major parties, both agree that in some respects the power of the national government is unlimited. As Marini writes, “The Republicans deny any limitations on the power of government in terms of national security and foreign policy. The Democrats believe that government has unlimited power as regards domestic policy. Taken together, it becomes impossible to establish the ground of constitutionalism when there is no consensus between the parties on how to limit the power of government.”
Marini further demonstrates the growth of the administrative-state mentality on key issues such as the budget, which establishes priorities for the government. His essay on immigration reflects on the significance of the loss of a robust notion of citizenship in a country that holds to Progressive notions of the state. His discussion of the decline of constitutional government culminates in a bold treatment of Watergate, arguing that it ought to be understood as a war between the defenders of the administrative state and its constitutionalist critic, President Richard Nixon. The lessons for today are staggering.
4
Congress: Reluctant Defender of the Administrative State
THE QUESTIONS POSED for this panel1 are the following: First, what role did Congress play in building and expanding the administrative state? Second, how significant is the problem that has resulted from the transformation of Congress? Third, what can Congress do to change the administrative state? To the first question: Throughout much of the first half of the twentieth century, it was primarily progressive presidents of both political parties who fought to aggrandize the administrative component of government, relentlessly 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 because it insisted upon maintaining its deliberative, representative, and lawmaking functions. After LBJ’s Great Society was launched, Congress faced a dilemma: whether to continue its constitutional function or adapt to its new function as guardian of the administrative state. It gladly acquiesced to the latter, easier course.2
Once the centralization of administration had become institutionalized, the operation and interests of the executive and the legislative branches were fundamentally transformed. The representative role of the parties was diminished, because bureaucratic patronage became more important than party patronage. In addition, the function of the judiciary was transformed. In the administrative state, the bureaucracy has no constitutional authority. But, it is given enormous power by the political branches. Consequently, the courts have been required to enter the policymaking arena, 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. In legitimizing policies of the agencies, the unelected courts have protected the political branches from responsibility for policies that are derived almost exclusively from the administrative process. Thus, the electorate has no access to the centers of power in the administrative process, even when they are deeply unpopular. Congress, or the president, controls the administrative details of politics through the bureaucracy, and the judiciary reigns supreme in the realm of political principles. The Supreme Court determines what passes for the moral will of society by construing what passes for the contemporary meaning of the law as well as the Constitution.
Insofar as Congress is still tempted to make general laws on behalf of a perceived public good, 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. But it is clear that this 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 necessary to provide the administrative apparatus with the legal authority to formulate the rules that would govern health care nationwide. Like the creation of the gigantic, bureaucratic Department of Homeland Security, or the Dodd-Frank legislation that regulates the banking industry, this was a congressional action on behalf of the expansion of administrative power. This kind of extension of legislative power is compatible with the government as part of the administrative state, but it cannot be understood to be within the letter, let alone the spirit, of constitutional government. The constitutional arrangement of power no longer establishes the political conditions out of which a common good can be articulated.
How significant is the problem that has resulted from the transformation of Congress? Of course, the Constitution still structures the institutions of American government, but the separation of powers no longer operates effectively on behalf of the principle of limited-government constitutionalism. Nor do any of the respective political branches of government seem to understand the importance of defending their institutional prerogatives in a manner that is compatible with their constitutional purpose. In short, it seems that political conflict in America has been transformed, in a practical way, by the growth of the administrative state. The political institutions of the national government no longer understand their political power as subordinate to the Constitution; rather, the Constitution has been subordinated to the requirements of the administrative state. As a result, the political institutions cannot pursue a common good that must be established by defending the institutional prerogatives that make it possible for the constitutional separation of powers to work on behalf of the American people. Constitutionally, bo
th political branches of government must participate in defining the public good, in terms of their institutional purpose. In this way, ambition can be made to counteract ambition.
Since the consolidation of the administrative state, neither party, nor political branch, in the absence of extraordinary events such as extreme crisis or war, can begin to articulate a conception of a common good that would enable it to establish a governing consensus on behalf of a national public purpose. Nor is there a common ground of policy agreement between the branches of government that can be established by, and on behalf of, a national political electorate. Under these conditions, it is nearly impossible to legitimize the actions of government politically by appealing to the electorate and getting the consent of the governed. Unlike constitutional rule, administrative rule is the rule of organized intelligence on behalf of organized interests.
In other words, it seems that the constitutional arrangement of power no longer establishes the political conditions out of which a common good can be articulated, let alone achieved, by the political branches of government. As a result, it has become more difficult to prevent the domination of a single will as that which establishes the ground of legitimacy and establishes what passes for public morality in American politics and society. Whether a unified will is understood in terms of presidential plebiscite, judicial fiat, or a public opinion that purports to establish the majority, or minorities, as the embodiment of moral will; the triumph of will has served to undermine rather than encourage genuine political conflict and debate. In the absence of such political conflict, there is no need of public deliberation, or accommodation of differences of political opinion. Unless it is in response to elections, it becomes unnecessary to even attempt to formulate, articulate, or defend a conception of a public good. Rather, the only necessity of government is that of mobilizing and accommodating the various organized, political, economic, demographic, or social interests. As a result, the administrative process has become more important than the political, or formal, lawmaking process that had once been established in order to make the separation of powers work in practice. In addition, it has diminished the institutional power inherent in each of the respective political branches of government and has replaced political rule with bureaucratic patronage and interest-group privilege, thereby undermining the rule of law.