by John Marini
It was precisely such a transformation from a constitutional regime to an administrative state that occurred in the twentieth century. It was the result of the triumph of progressive principles based upon a theory of government that mandated a fundamental alteration of the practice of politics, one animated by unlimited power on behalf of a moral or political will. However, in America, that moral will must still be established within the political branches of government, but its practical implementation has been placed in the hands of technically trained administrators. Consequently, the sovereignty of the people—made practicable in the protection of individual natural rights and the defense of the political as the primary necessity of constitutionalism—had to be replaced by the sovereignty of government, a creature of the fundamental moral entity, the ethical, or rational state. Rights are then a product of the government of the state. They are allocated to various groups in the form of political privilege, which when established by will is made moral in the form of rights. The primacy of administration derives from the necessity of technical expertise, but it is put in the service of a theoretical and moral doctrine. That doctrine, the philosophy of History, had effected this transformation and established the intellectual and moral foundations of Progressivism, which culminated in the modern administrative state. As a result, the theoretical and practical ground of constitutionalism, understood in terms of nature or reason, and political prudence, was so undermined as to become almost meaningless.
The administrative state, with the blessing of Congress, the presidency, and the Supreme Court, grew dramatically in the last third of the twentieth century, and it continues to expand in the twenty-first. 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, the ongoing contentiousness between the political branches of government, within the parties, and in the electorate, concerning the desirability of expansion, limitation, or diminution of the size and scope of the federal government seems almost inevitable.17
6
Budgets, Separation of Powers, and the Rise of the Administrative State
THE TITLE OF THIS PANEL, “Separation of Powers and Today’s Budget Process,” appears to rest on the assumption that the budget process can reveal both the practical and theoretical dimensions of the political problems that have arisen in American government in the past half century. Of course, budgets reveal only part of the deeper problem that arises from the difficulty of accommodating the administrative state within the structure of a constitutional regime. But, in looking at the practice of contemporary government, and attempting to understand the modern character of separation of powers, a good vantage point is provided by observing the budget process. It provides a political focus, which can help illuminate the theoretical doctrine of the separation of powers. Moreover, it remains a good practical way of seeing how the political branches relate to each other at a point at which they must necessarily interact.
Nearly every political crisis revolves around the functioning of the separation of powers. And the federal budget provides a lens that can focus on the way money shapes the debate over policies and the purposes of government. In addition, those partisan quarrels help to reveal what lies behind the preconceptions of politicians and parties concerning their view of the public good. If the modern budget stands at the heart of American politics, was it the rise of the administrative state that brought it to the fore and changed its character and purpose? Has that change affected the operation of the separation of powers, making it more difficult for the political branches to function well on behalf of a national interest?
The various contemporary crises between the branches, such as the recent government shutdown or the showdown over the debt limit, are only the latest in a long series of such crises in Washington. In fact, with few exceptions, the budget has formed the battleground between the parties and the political branches of the government—the executive and the legislative—in every administration since LBJ’s Great Society. That starting point is not a coincidence: The Great Society marked the beginning of an expansion of the political power of the federal government and a centralization of administrative authority in Washington that had long been the domain of local and state governments. In addition to destroying the fabric of federalism, this centralization had the effect of undermining the separation of powers, making it difficult if not impossible for Congress, the president, and the bureaucracy to function amicably in pursuit of a national interest. What we have seen in subsequent decades is the steady expansion of a modern administrative state that is distinctively American in that it coexists with a limited-government Constitution.
For several decades after a federal budget process was put in place, a consensus concerning the size and purposes of the federal government limited the conflict over control of public finances. Administrative functions at the national level were few, in keeping with a system of decentralized administration, an autonomous civil society, and a constitutional system that underscored the limited character of government. This would change in the 1970s, during the Nixon administration, when Congress reorganized itself to become a major player in the administrative process that had risen with the Great Society. The public consensus in support of limited government and balanced budgets began to break down. Moreover, Republican presidents, at times representing national majorities opposed to the expansion of government, and Democratic Congresses organized around private interests in support of its expansion, became rival forces to an extent incompatible with the pursuit of a long-term public interest.
It is no longer easy to understand the powers of government in terms of their use on behalf of a constitutional purpose. So, it has become difficult to assess, let alone defend, the various uses of the powers of government, whether in the executive, legislative, or judicial branches, in terms of their constitutional purpose. Instead, we are forced to judge the politics of the administrative state in terms of a defense of Congress, the presidency, or the Supreme Court, based primarily upon the policy preferences of the observer. Once the legitimacy of the administrative state is granted, it is nearly impossible to establish an objective ground outside of politics or will as the only justification for the use of power. If the constitutional structure is to become meaningful in terms of understanding contemporary partisanship, it is necessary to see how the branches were intended to operate on behalf of constitutional government. In short, it is necessary to reestablish the theoretical ground of constitutionalism in order to recreate an objective ground of judgment in terms of justifying the uses of powers within each of the branches of government.
The American Founders considered the legislative branch to be the first branch of government. It was thought to be the one with the most power, and therefore most difficult to rein in. They armed the other two branches with significant powers but assumed that the legislative branch had ample power to defend itself. It was assumed that each branch would exercise its power from an institutional perspective, but on behalf of a constitutional purpose. Although the institutional perspective was fundamental, that was only the starting point. It was also necessary to recognize the constitutional purpose of its power within a regime of separated powers; that is, each branch must pursue a public good from the perspective of its own branch. It is thinking about the whole, from the perspective of the parts, that would allow each of the branches to participate in defining a public good.
Understood in this way, it is in the interest of each branch to cooperate with the others in terms of pursuing the national or common good. But that cooperation should also encourage sound public policymaking that is attentive to the interests of a diverse public. Only when each branch represents its institutional perspective in a constitutional way is it possible to reconcile, in a political manner,
the various interests of a diverse public and also retain and defend the administrative powers of state and local governments. In observing Congress over the last fifty years, it becomes clear that its power to deliberate and legislate—in other words, its lawmaking power—is no longer the source of its primary authority, as was intended by the Constitution. Rather, to retain its status as the first branch of government, its lawmaking power was subordinated to its administrative oversight power. As a result, the political and legal standard by which to judge Congress is no longer its constitutional power, but rather its fundamental role in organizing and consolidating the administrative state.
So, it is no longer clear that the bureaucracy is the willing servant of its political masters, once these elected “masters” came to be perceived as a threat to the administrative state. This reality soon becomes apparent to all who hold elective or appointive office; the bureaucracy is much more hospitable to the interests of the defenders rather than the political opponents of the administrative state. Moreover, the necessity to operate within a framework dominated by the administrative process has made it difficult for members of Congress to understand the importance of defending the prerogatives of the institution itself, not to mention its constitutional purpose. As a result, political partisanship on behalf of—or in opposition to—the administrative state has replaced institutional loyalty and threatens to undermine constitutional government itself.
Indeed, after September 11, 2001, the Bush presidency succeeded in further undermining any attempt to reestablish regular order in the House. With the creation of the Department of Homeland Security, justified as necessary in the war on terror, the bureaucracy was enabled to treat domestic security in the same way as national security, dramatically expanding executive power in a manner that it would normally have only as part of its war-making powers. Consequently, it became more difficult to draw the line between the domestic and foreign policy powers of the president. Congress empowered the executive branch by nationalizing its police powers in the name of national security and also created the opportunity for increased centralization of power in the congressional leadership through its use of emergency powers. As a result, unlike earlier wars, nearly all of the money for the Afghanistan and Iraq wars during the Bush administration was funded outside of the regular budget process through annual emergency spending provisions. The president assumed powers in domestic affairs, such as no-bid contracts, that were defensible only in times of war.
Although Bush’s popularity by the end of his second term approached the levels of disapproval of Nixon after Watergate, the powers of the presidency and the executive branch were hardly touched. Congress did not reassert its authority after his presidency. When Obama took office, unlike Gerald Ford’s succession of Nixon, he inherited all of the executive powers that had been claimed by Bush. Unlike Bush, Obama was more interested in using those powers on behalf of consolidating his domestic policy agenda, rather than pursuing a vigorous foreign policy. It seems that both parties are in agreement insofar as they believe that the powers of the national government are unlimited. 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. The American Founders knew that government must have all of the power that is necessary in times of war. But that means that Congress and the president must establish a distinction between war and peace; they must clearly identify the enemy and determine what constitutes victory, so that it is possible to reestablish the ground of normal government. Peace, not war, must determine how the institutions operate in normal times. Under the conditions established by the war on terror, it is impossible to distinguish war and peace, or know when victory has been achieved. If the necessity of preparation for war is a constant and ongoing condition of civic life, no limitations can be imposed on government. This condition is compatible with bureaucratic rule, but not political or constitutional rule, as we have previously argued about the Progressive revolution.
A written Constitution is meaningful only if its principles, those which authorize and legitimize governmental authority, are understood to be permanent and unchangeable, in contrast to the statute laws made by legislatures and governments that alter with changing circumstances and the political requirements of each generation. In other words, such a regime must have a theoretical or reasonable ground that distinguishes it from government. When the principles that establish the legitimacy of the Constitution are understood to be changeable, are forgotten, or are denied, the Constitution can no longer impose limits on the power of government. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals, as well as every other interest in society.1
7
Progressivism, Immigration, and the Transformation of American Citizenship
AMERICA HAS OFTEN BEEN CALLED a nation of immigrants, as if that is what has distinguished it among the nations of the earth. But every human society that did not spring full-blown from the soil with a common identity is a nation of strangers, or immigrants, who were somehow united in civic friendship. Some nations with long histories have forgotten their origins, or what it was that made it possible to distinguish themselves from others. The problem of immigration, therefore, is unintelligible in the absence of an understanding of what it is that constitutes the ground of unity or common identity. Any human association that considers itself as separate or distinct from other political societies—or, in modern times, one which considers itself sovereign—must make distinctions between those who are citizens and those who are not.
America established the ground of political citizenship in the equal natural rights of man. It required a social compact and consent to authorize the power of government. The social compact made it the primary purpose of government to protect the rights of individuals. By limiting the power of government, the compact assured the autonomy of civil society, making it unnecessary for religion to utilize the authority of government. Once equality is understood in terms of the equal protection of equal rights, considerations of religion, ethnicity, race, or culture cannot be decisive as the ground of citizenship, although they might have some prudential bearing on who might become citizens.
The philosophy of History and the new idea of the rational state, which was at the core of the Progressive movement, undermined the natural right foundation of the American regime. This resulted in the repudiation of the social contract and the principle of equality. The social compact and the natural right theory upon which it was based represented a philosophic way—through nature and reason—of understanding political and moral phenomena. That tradition was fundamentally undermined by the acceptance of a philosophy of History. Joseph Cropsey characterized this transformation in human thought by observing “that the replacement of philosophy by History was the condition of the replacement of politics and religion by society and economics.”1
In the rational state, the authority of science—and the new disciplines of the social sciences—would provide the theoretical and practical knowledge necessary to transform society and administer progress.2 The Hegelian idea of the state was meant to reestablish a political whole that would reunite the social and economic, the public and private, and make citizenship the ground of freedom and public virtue.3 The Progressive thinkers, intoxicated by the new philosophy of History, looked to society and economics as fundamental to an understanding of the historical process. They gravitated, subsequently, to the concepts of race and class, and eventually, culture, as tangible factors in their attempts to elucidate that process. In their view, there are no permanent human problems. Consequently, every problem can be solved by the transformation of society and economics. That transformation required the rule of organized intel
ligence in the form of a rational bureaucracy within the state. The state itself becomes the embodiment of the whole and as such is an ethical organization. In denying the natural right foundation of philosophy, the truth of equality as the foundation of equal citizenship was also undermined.
The American Founders insisted that the abstract principle of natural equality spelled out the way in which all men are the same: in terms of their natural rights. But the diversity in the faculties of men, and the factionalism which is derived from those differences, is also sown into the nature of man. This is recognition of the way in which men differ. Thus, social inequality, which grows out of the differences inherent in the faculties of men, is a necessary outcome of a free society. The defense of freedom therefore required a defense of property, understood in terms of the protection of the fundamental individual rights of conscience, opinion, interest, and labor. In separating church and state, government and civil society, and the public and private sphere, equality and liberty is reconciled in a reasonable way that is compatible with the nature of man.
Progressive thought, on the other hand, established a new ground of citizenship, which rested on a denial of the doctrine of natural right and the older understanding of the principle of equality as an abstract truth. In addition, it denied the traditional view that freedom is subordinate to the moral law. It is the new historical understanding of freedom and equality that would provide the foundation of equal citizenship in Progressivism. In the modern state, rationalization, or centralization, then would require the imposition of a governmental uniformity upon civil society, without regard to individual rights or natural differences.