Unmasking the Administrative State

by John Marini

  Hamilton, moreover, had given perfect expression to this view in Federalist 70, when he noted: “Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have, with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand; while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.” Schmitt, too, pointed to the heart of the matter when he observed that “the universal criterion of the law is deduced from the fact that law (in contrast to will or the command of a concrete person) is only reason, not desire, and that it has no passions, whereas a concrete person ‘is moved by a variety of particular passions.’ In many different versions, but always with the essential characteristic of the ‘universal,’ this concept of legislation has become the foundation of constitutional theory.”50

  The American Constitution created an institutional tension between the executive and the legislature, which, in practice, subordinated both executive prerogative and ordinary lawmaking by legislative majorities to the authority, rationality, and balance of a written Constitution. Its success was dependent upon the ability of the executive to act energetically, exercising its will on behalf of the public good when necessary, and also its ability to prevent the legislature from governing in the details, or acting like an executive. The tendency of democratic government is toward legislative dominance of the governing function. It is for this reason that Madison speaks of legislative predominance as an “inconveniency,” the “remedy” of which “is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”51

  But, even this, he knew, was not sufficient. “It may even be necessary to guard against dangerous encroachments by still further precaution,” he insisted. “As the weight of the legislative authority requires that it should be divided,” he noted, “the weakness of the executive may require … that it should be fortified.”52

  The consequence of the failure to do so had already been clearly stated by Montesquieu. He observed: “were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.”53 The separation of powers cannot be maintained if the distinction between the legislative and executive power is undermined by the legislature’s attempt to substitute its will for the reason of the Constitution. In such a case, the legislative body, and not the law, will indeed predominate. Constitutional government requires the maintenance of a separation of powers that distinguishes legislative and executive, reason and will, or law and prerogative.

  The practical distinction between the executive and the legislature collapses when the agents of the executive administration become the tools of the legislature. Montesquieu warned that “if … the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason the two powers would be united, as the same persons would sometimes possess, and would always be able to possess, a share in both.”54 The growth of the bureaucracy and its connection with the legislature has undermined the principle of the separation of powers. Although members of Congress do not serve in the executive branch, personnel of the executive bureaucracy have become the tools of the legislature.

  Carl Schmitt clearly underscored the importance of the separation of powers in constitutional government. He asserted “that a constitution is identical with division of power.” He pointed to article 16 of the Declaration of the Rights of Man and Citizens, which states, “Any society in which the separation of powers and rights is not guaranteed has no constitution.” Schmitt goes so far as to suggest “that the division of powers and a constitution are identical and that this defines the concept of a constitution even appears in German political thought from Kant to Hegel as a given. In consequence such a theory understands dictatorship not just as an antithesis of democracy but also essentially as the suspension of the division of powers, that is, as a suspension of the constitution, a suspension of the distinction between legislative and executive.”55

  The undermining of this essential principle of constitutional government, which is a recent phenomenon of American politics, was already apparent to Schmitt in the 1920s when he witnessed the collapse of the Weimar constitution. He noted then that the

  great political and economic decisions on which the fate of mankind rests no longer result today … from balancing opinions in public debate and counter debate. Such decisions are no longer the outcome of parliamentary debate.… The participation of popular representatives in government—parliamentary government—has proven the most effective means of abolishing the division of powers, and with it the old concept of parliamentarism. As things stand today, it is of course practically impossible not to work with committees, and increasingly smaller committees; in this way the parliamentary plenum gradually drifts away from its purpose (that is, from its public), and as a result it necessarily becomes a mere facade.

  Schmitt argued that “parliamentarism thus abandons its intellectual foundation and that the whole system of freedom of speech, assembly, and the press, of public meeting, parliamentary immunities and privileges, is losing its rationale. Small and exclusive committees of parties or of party coalitions make their decisions behind closed doors, and what representatives of the … interest groups agree to in the smallest committees is more important for the fate of millions of people, perhaps, than any political decision.” Schmitt concluded that “if in the actual circumstances of parliamentary business, openness and discussion have become an empty and trivial formality, then parliament, as it developed in the nineteenth century, has also lost its previous foundation and its meaning.”56

  The American Congress remains perhaps the most powerful legislative body in the world. But its power is no longer derivative of its constitutional purpose. Increasingly, its authority derives from the fact that the legislative body has succeeded in exercising its will rather than its capacity for reason, which has undermined the reasonableness of the constitutional order itself. Consequently, its influence has become dependent upon its ability to function like an executive. It has become, as we have argued in other chapters, an administrative congress.

  Congress or Government as a Faction

  The dangers that majority factionalism posed to stability and the protection of private rights in a small democracy is analogous to a similar danger in an extended republic. If the members of the legislature and the dominant interests in government (i.e., the bureaucracy) become no more than a faction on behalf of the interests of government or bureaucratic rule, deliberation and representation of a public interest, or a common good, would be unnecessary, not to say impossible. Government itself would no longer be the interest that transcends factionalism; it would be a faction. And, like “the will in the community independent of the majority—that is, of the society itself,” which Madison spoke of in Federalist 51, it “may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.” In short, such a will is unrestrained, and the government is no longer constitutional. Because of its overriding power and its unique connection to the people, the danger of legislative corruption has long been recognized as the gravest danger to free government. In Federalist 71, Hamilton expressed with perfect clarity the constitutional problems posed by legislative usurpation of power. He noted: “to what purpose separate the executive, or the judiciary, from the
legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and whatever may be the forms of the Constitution, unites all power in the same hands.”

  Some years before the American Constitution was written, the celebrated theorist of democracy, Montesquieu, pointed to the conditions under which liberty and democratic governments were likely to be destroyed. Like Hamilton, and the framers of the United States Constitution, he insisted that good government would require a viable separation of the powers of government. In addition, like the framers, he insisted that this principle of democratic constitutionalism would most likely be undermined through the corruption of the legislature. Montesquieu observed: “as all human things have an end, the state we are speaking of will lose its liberty, will perish.… It will perish when the legislative power shall be more corrupt than the executive.”57

  13

  Progressivism, the Social Sciences, and the Rational State

  SHORTLY BEFORE THE END of the twentieth century, Progressivism once again entered the popular vocabulary as the preferred term for what had long been described as liberalism.1 When it came to be understood in political terms, Progressivism engendered heated opposition to the economic and social agenda of the modern administrative state. For much of the past century, triumphant liberalism had disguised the political character of Progressivism by portraying it as an inevitable historical movement. That movement or transformation of American life in the direction of the liberal or rational state was said to be spawned by urbanization, industrialization, and the corruption of state and local governments, as well as private economic corporations. The modern state, and the need for unlimited power in the national government, was thought to be the inevitable consequence of the progress of those economic and social forces unleashed by modernity.

  It was not the conscious choice of politicians that had brought about the transformation of political life. Politicians could not oppose or derail those historical forces; they could only adapt to them. Such adaptation left political men with little choice but reform of the old order. As a result, partisanship came to be viewed in terms of progress: those who embraced History’s advance toward a glorious future, the Progressives; or Reactionaries, those who resisted change and attempted to cling to an outmoded past. Liberalism and conservatism is best understood from the same theoretical perspective, as a political reflection of the distinction between progressive and reactionary. Consequently, contemporary ideology and politics become intelligible only with reference to a philosophy of History, which originated in the political thought of Kant and Hegel.

  At the beginning of the twentieth century, Progressivism was still understood explicitly as a political and social movement. Moreover, it was clear that Hegelian historicism, as a theoretical perspective, had already established itself as the authority to be reckoned with. Indeed, it clearly dominated the intellectual landscape of the newly emerging social science disciplines within the new and newly restructured university graduate schools. Subsequently, it would come to dominate the political landscape as completely as it had the intellectual. Some indication of that potential for political dominance was already apparent in the election of 1912, when three-fourths of the votes of the American people were cast for avowed Progressives; Woodrow Wilson, Theodore Roosevelt, and Eugene Debs. The other fourth went to the incumbent president, William Howard Taft, who, not to be outdone, called himself a progressive conservative.

  Clearly, there were political differences among the Progressives concerning Progressivism’s practical meaning and what should be done. Although it was and is a political movement, Progressivism, like liberalism, could not be understood simply in terms of politics or concern with agenda. Rather, Progressivism was the political manifestation of a theoretical revolution in political thought. Just as constitutionalism was dependent on a philosophic doctrine of nature and natural right, Progressivism derived its political and social agenda from a philosophy of History. In exposing the theoretical roots of Progressivism and the liberalism it spawned, it becomes possible to reveal the political agenda of both and to understand the common historicist roots it shared with economic and social conservatism. In short, it becomes possible to understand the political disagreements only after we have understood what it is that Progressives, liberals, and conservatives agreed on.

  To put it simply, liberals and Progressives (as well as post–Civil War conservative economists and social scientists) were united in their opposition to the political theory of the American Founding. They were united in accepting the view of Kant, that the moral law could not be established on the foundation of natural law or natural right, which was derivative of philosophical or metaphysical reason.2 In his revised view of practical and theoretical reason, Kant had argued that pure reason, or metaphysics, could reveal only natural or physical reality; hence natural laws would come to be understood in terms of natural science or physics. And the moral law, or political right, for Kant, could be understood only on the basis of practical reason. In short, later thinkers would come to view the moral law as a product of the exercise of human freedom or will.

  Consequently, historicist thought, a century before Progressivism, had already undercut the ground of theoretical or metaphysical reason, and severed the connection with philosophic ethics, or natural right. Progressive intellectuals had come to understand natural laws only in terms of science, not ethics or morality. It was for this reason that many Progressive intellectuals, including Woodrow Wilson, would insist that the American Founders had wrongly derived moral and political authority from what they (the Founders) had thought to be natural laws of science. Wilson assumed, therefore, that the Founders’ understanding of political principles had been derived from the authority of theoretical physics. It is clear, however, from any candid assessment of the American Founders, that they did not believe that their political principles had been derived from Newtonian physics. As a result, they would not have understood politics or its theory or practice from a modern historical or scientific perspective. Nor could they have agreed with those Progressive intellectuals in the next century who would insist that the Founders’ political principles had or could become historically obsolete.

  Woodrow Wilson, under the spell of Kant’s views concerning theoretical and practical reason, had assumed that it was metaphysical reason in the form of a scientific law, Newton’s physics, which had established the theoretical and scientific ground of American constitutionalism.3 But it is clear that Wilson’s understanding of science was already shaped by his understanding of History. Not surprisingly, the Progressives, like Wilson, assumed that the Founders lacked “historic sense” and were unable to see that their scientific views were a product of their time, which happened to be dominated by Newtonian physics. But Wilson, like most Progressive social scientists, was convinced that the new Darwinian science had rendered the static or mechanical understanding of The Federalist’s political science (and its Constitution) obsolete.4 Rather, they believed Darwin had vindicated, through the new science of biology, the Hegelian view of the historical process, and its vehicle, the rational state, as a living and evolving organism.

  Consequently, it was the modern theoretical understanding of philosophy of History, and the concept of the rational state, that would establish the moral and intellectual foundations of modern progressive politics.5 And it would establish the theoretical ground of both modern liberalism and conservatism.

  Thus, Progressives (liberal and conservative) were united in their view, derived from Hegel, that the organic or rational state must replace the social compact, or constitutionalism. They were united in their view that rights and freedom were not natural or individ
ual but social and dependent on historical development. They were united in the view that the replacement of philosophy by History made it possible to establish the conditions for the replacement of both static politics and religion by dynamic economics and society. Political life and religion must vanish to enable the perfecting of economic and social conditions through the establishment of new social sciences that could bring about an uncoerced rational society, thereby opening up the possibility of complete freedom, or 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 Rational State: Eclipsing Nature and the Social Compact

  The idea of the state provided the unifying concept of the disciplines of the social sciences from the beginning. That idea, as it was developed by Hegel, rested on the discovery of the rational character of the historical process. With the concept of the state, Leo Strauss noted:

  Hegel had reconciled “the discovery of History”—the alleged insight into the individual’s being in the most radical sense, the son or stepson of his time, or the alleged insight into the dependence of man’s highest and purest thoughts on his time—with philosophy in the original meaning of the term by asserting that Hegel’s time was the absolute moment, the end of meaningful time: the absolute religion, Christianity, had become completely reconciled with the world; it had become completely secularized or the saeculum had become completely Christian in and through the post-revolutionary State; history as meaningful change had come to its end; all theoretical and practical problems had in principle been solved; hence, the historical process was demonstrably rational.”6