by John Marini
Trump assumed the presidency directly after Barack Obama had succeeded in strengthening the power and reach of the administrative state. Trump questioned not only the legacy of Obama, but the whole of the Washington establishment that had arisen since the end of the Cold War. It seems that at every important juncture in the growth of the modern state, there have been those who have questioned the expansion of the powers of the administrative or regulatory state. In those perilous days of the 1930s, when contending ideologies “were fighting for the mastery of the modern world,” Walter Lippmann, in The Good Society, expressed his fear of the growing concentration of power in government.
He focused his criticism on those Progressive intellectuals who had developed great contempt for the achievements of the past. In that time, he noted, “Most men had forgotten the labors that had made them prosperous, the struggles that had made them free, the victories that had given them peace. They took for granted, like the oxygen they breathed and the solid ground beneath their feet, the first and last things of Western civilization.”2 In the aftermath of the Cold War, the victorious nations of the West seemed also to have forgotten the struggles of the past. They embarked upon a new, wholly self-created world oblivious of history and political reality itself.
That intellectual turmoil, Lippmann thought, “reflected the fact that in the modern world there is a great schism: those who seek to improve the lot of mankind believe they must undo the work of their predecessors. Everywhere the movements which bid for men’s allegiance are hostile to the movements in which men struggled to be free.”3 In such circumstances, the practice of politics soon succumbed to the delusions of the intellectuals. In Lippmann’s words, “With man degraded to a bundle of conditioned reflexes, there was no measure of anything in human affairs: all the landmarks of judgment were gone and there remained only an aimless and turbulent moral relativity.… All the diverse prophets who knew the noble plan of realized reason in world history developed a magnificent contempt for any idea which, because it respected the inviolability of the individual, might justify resistance to these missions.”4 All that remains is the triumph of will.
Amid the moral confusion and intellectual chaos of that day, all that remained was contempt for “the inviolability of the individual.” Lippmann insisted that “these are the choices offered by the influential doctrines of the contemporary world. Those who would be loyal to the achievements of the past are in general disposed to be fatally complacent about the present, and those who have plans for the future are prepared to disown the heroic past.”5 He was aware that the defense of freedom was indistinguishable from the defense of constitutionalism, which required the protection of individual rights and the rule of law. In the end, Lippmann understood the fateful choice of Western man in the following way: “But still the question remained as to where, at what final rampart, a man must stand when he fights for human freedom. I could see that in the polity of a free society the regulation of human affairs was achieved by the definition and the adjudication of personal rights and duties, whereas in all unfree societies it was done by administration from above.”6 Is it possible to retain individual freedom in the absence of political, or constitutional, rule?
If the people are to understand themselves as sovereign, they must reestablish the political authority of the Constitution in a manner that makes it possible to restore the moral ground of civil and religious liberty. A government that does not recognize the sovereignty of the people cannot defend the rights of individuals in a constitutional manner. A constitution is a compact of the people, and the government is created on its behalf. The people grant it power, but only the constitution can establish limits on the power of government. In the modern administrative state, the power of government is unlimited, and the rights of citizens, and the rule of law itself, rests on a precarious ground. For if the government alone creates and confers rights, the Constitution can no longer limit the power of government, nor can it protect the civil and religious liberty of its citizens. It is still possible to reestablish limits on government, but only by restoring the political conditions of constitutionalism.
APPENDIX I
Replies to Symposium Participants, “Abandoning the Constitution”
I ATTEMPTED TO SHOW that Progressivism as an intellectual movement had triumphed even before the beginning of the twentieth century. It dominated political thought and established the ground of all partisanship by the election of 1912. Theodore Roosevelt, Woodrow Wilson, and Eugene Debs were not the only ones who described themselves as Progressives; even William Howard Taft called himself a progressive conservative. In my attempt to elucidate the difference between constitutionalism and the administrative state, I tried to make clear that it is the theoretical character of the American Founding that no longer resonates and has been replaced by another theoretical perspective.
I chose Thomas Paine as the best representative of the earlier view because he was the most influential theoretical politician of the revolutionary era. And Washington, Jefferson, and nearly all of the American Founders subscribed to Paine’s principles, derived from theoretical reason. Agreement on theoretical principles, however, does not preclude disagreement on prudential grounds, or concerning politics, which is derived from practical reason and rests upon opinion. Surely, Paine’s political opinions, as opposed to his principles, were not so widely shared when the political science of the Constitution came to be understood by the Federalists as “inventions of prudence.” The theoretical character of the American Founding was dependent upon both theoretical and practical reason, not to mention nature or natural right. When theoretical reason resonated, it was possible to distinguish principles from political practice, which rested upon opinion. It was possible, therefore, to distinguish a constitution from government. Subsequently, historians, oblivious to the principled agreement derived from metaphysical reason, could see only political disagreement among the Founders and came to conclude that it lacked any theoretical coherence, or unity of purpose. In denying the authority of nature as well as theoretical and practical reason, Progressive thought was constructed upon an understanding of freedom, or will; human action establishes the ground of morality and becomes the animating force of historical progress. Consequently, there is no further need to distinguish theoretical reason (principles derived from nature) from practical reason, or prudence (application of those principles in concrete circumstances). The moral will is derived from practical reason, making prudence superfluous. Thus, the problem of politics becomes one of establishing scientific or technical rationality (eventually, it became social science), which would practically and efficiently ensure that the will is made actual. That historical transformation requires moral leadership, or vision, as they now say. As with Paine, in terms of theory, I looked to the single most successful progressive practitioner, or politician, of our time. As important as Theodore Roosevelt was in the early century, I focused on Franklin Roosevelt because he was the one who transformed what had been primarily a powerful intellectual movement, Progressivism, into the most successful political movement of the twentieth century: liberalism.
Yarborough gently reminds me that not all the blame for the ills of Progressivism can be laid at the feet of Hegel. I agree. She suggests that Tocqueville foresaw some of those problems in the “tendency of democratic societies to love equality more than liberty.” Tocqueville was persuaded that the passion for equality of conditions arises from the acceptance of the general idea of equality, which derives from Christianity. The demand for equality requires ever-greater uniformity, rationality, and centralization of administration. In his view, equality then becomes the closest thing to a principle of democracy. Thus, he insists that all democratic regimes are characterized by a commitment to equality, and all modern regimes will become democratic. The problem that concerned Tocqueville was the status of liberty in democratic societies.
Tocqueville’s Limitations
I … am a great admirer of Tocqueville�
�s analysis of centralized administration as the “kind of despotism democratic nations have to fear.” Yet, I did not think he was helpful in establishing the theoretical character of a constitutional regime based upon principles of natural right. Nor, do I think that Hegel was any less concerned with liberty than Tocqueville. And, although Hegel understood equality in terms of citizenship in the state and Tocqueville in terms of democratic society, both understood theory from a perspective of History, not nature. Tocqueville accepted the practical implications of what Hegel had made explicit theoretically; that the historical process is purposeful without regard for human choice. If providence had mandated the triumph of democracy and equality, the defense of freedom rested upon the preservation of those pre-democratic institutions (aristocratic traditions, religion, free townships) where “communal liberty” existed before democratic equality was established.
Tocqueville’s new political science, therefore, was an attempt to fathom a new world made intelligible by History, not nature. Consequently, his view of equality comes to be understood in historical terms, as a general idea that shapes, and is shaped, in democratic society. If the democratization of society leads inevitably to equality of conditions or administrative centralization, no natural beneficial order of human society, which must be made intelligible through the use of human reason, is attainable. Rather, democracy and equality of conditions leads inevitably to despotism. In Tocqueville’s view, equality was not to be understood in terms of reason or metaphysics, nor is it derived from philosophical principles established on the grounds of nature, or natural right. Not surprisingly, Tocqueville did not attempt to defend the American Founders’ understanding of the principle of equality, because he did he not think that equality could serve as the grounds of political right or justice. For Tocqueville, the closest thing to a universal principle of political right is not equality, but liberty. Equality was fated; the problem that concerned him was the fate of human freedom in democratic times, something which was still within human control. The problem of democratic despotism arises because of an inability to harmonize equality and liberty once society is democratized. Although equality is compatible with freedom or despotism, it moves almost inexorably toward democratic despotism. Freedom, therefore, must be preserved against the growing demands for greater equality, which originate in democratic society.
Unlike Tocqueville, the American Founders had argued that equality and liberty were not only compatible but necessary concomitants. Neither was fated, but both were understood to be objects of political choice derived from reflection. Both could be lost if not properly understood and nurtured. A proper understanding of the equality and liberty is akin to a proper understanding of theory and practice. They are opposite sides of the same coin. The political problem requires a reconciliation of theoretical and practical reason, of principle and prudence, of constitutionalism and government. In the Founders’ view, both equality and liberty were wholly necessary and only compatible when established within a constitutional or political regime in which a limited government and an autonomous civil society serve to protect individual natural rights. When constitutionalism was undermined and came to be understood in terms of the administrative state, the meaning of equality and liberty was transformed by political necessity. Equality was no longer understood in terms of a defense of individual natural rights, nor was liberty understood in terms of preserving the autonomy of civil society. Rather, equal citizenship required that government becomes the arbiter of all political rights, based upon the unity of the state itself. Indeed, the state was meant to transcend the distinction between government and civil society, church and state, and the individual and the social or communal. In John Dewey’s view, progressive liberalism was meant to replace the Founders’, or John Locke’s, liberalism.
Group Rights versus Individual Rights
It is not surprising that the Progressives like John Dewey and Mary Parker Follett came to understand political freedom in terms of social, or group, rights and individual freedom not in terms of self-government but of self-expression, or creative self-discovery. When government established the grounds of right in the state, freedom comes to be understood in terms of equality of rights, or equal citizenship. Individual rights and civil society become unintelligible theoretically, and eventually politically as well. Is it possible then to understand equality and liberty as having both a theoretical unity and a practical separation, as it was understood by the Founders? Furthermore, are not the various twentieth-century social and cultural movements (what came to be called identity politics, whether of blacks, women, ethnic, religious, minorities, gays, etc.) made on behalf of liberation, or evolving consciousness of freedom? And, always, it seems that these demands for equality have been made on behalf of liberty. I don’t doubt that the Progressive intellectuals, like the theorists who inspired them (including Rousseau, Kant, Hegel, and Marx), loved liberty as much as equality. It was the meaning of equality and liberty that had changed. Tocqueville was right about the meaning of equality as it came to be understood historically. At the same time, he refused to understand liberty in the way it came to be understood in the Hegelian conception of freedom as equal citizenship within the state.
Finally, I can only agree with Brad Watson that “our problem runs even deeper than Marini shows.” Watson points to a crisis of historicism itself that was revealed most clearly by Nietzsche. To achieve some clarity on that subject would require what Nietzsche described as a kind of knowledge about man derived from physio-psychology. I did not want to descend to those kinds of subjective depths. I preferred to remain on the surface. Consequently, I tried to give a political and theoretical account of the transformation of the American regime. And perhaps I succeeded somewhat. Professor Watson himself concluded that my analysis offered, in his words, “concrete grounds for hope.” In political philosophy, as well as reasonable religious belief, there is always ground for hope. That is because the desire for justice and happiness, or salvation, offers human possibilities that force individuals to look outside of their subjective world. The optimistic Progressives had hoped that politics and religion could be replaced by a free, or uncoerced, rational or scientific democratic society. That hope came to be viewed as more akin to a dream, rather than as an objective analysis. The pessimism of twentieth-century liberalism grows out of a loss of confidence in the rationality of the historical process and science itself. In denying any objective or meaningful reality, it has revealed itself as a kind of nihilism. It is for this reason that I wanted to remain on the level of a theoretical and political, or commonsense, analysis of our problem.
APPENDIX II
The Political Conditions of Legislative-Bureaucratic Supremacy
IT WOULD BE A MISTAKE for American conservatives to rely heavily on the performance of judges—or the judiciary—to achieve victory in the policy arena. The contemporary role of the Supreme Court becomes intelligible only upon recognition of the fact that the judiciary has become an indispensable tool in the growth and legitimation of the administrative state. However, the administrative state was a creature of the Democratic Party. Its evolution required an activist judiciary in alliance with a liberal and apparently passive legislative body. It was the wholesale delegation of authority to the bureaucracy by its architect, the congressional majority, which in effect forced the judiciary to enter the policymaking arena. (Of course, judges have not been immune to the temptation of reveling in their newly gained power and defending it as heaven-sent.) It will be much more difficult for Republicans to utilize the least democratic branch for its political purposes precisely for this reason: the policymaking power of the courts is predicated on the assumption that the judiciary will serve as the linchpin of the bureaucratic state. Proponents of this state recognize no principled limitation upon the power of government; in practice, they insist upon limiting the power of the majority—now especially with the national majority represented by the president—while at the same time denying any l
imitation upon the power of the unelected minority institution, the judiciary. But constitutional government presupposes a limitation upon the power of government in all its parts.
The constitutional separation of powers reflects the primary necessity of preventing the legislative branch from undermining the Constitution, due to its supremacy as the ongoing lawmaking body. Judicial review of legislation inhibits that supremacy and thus ensures the supremacy of the constitutional order, assuming that the court will defend the Constitution in its judicial role. What we have seen in recent years, however, is the participation of the two political branches in enlarging the court’s role. They have deferred to the judiciary in nearly all matters, political as well as judicial, and have failed to insist that it limit its power to its constitutional role of judging as opposed to making law. Thereby the court has been allowed to undermine not only the separation of powers, but the Constitution itself, by judicial interpretation. Judicial review has given way to judicial supremacy.
This change is widely remarked upon, not so the specific and revolutionary purpose for which it was accomplished. In recent years, the Democratic Party in Congress has utilized the judiciary to overcome the limitations placed upon the power of all government. For by aggrandizing the judiciary while at the same time ignoring its constitutional role, the legislative branch gained legitimacy for the bureaucratic state. The court, freed from constitutional restraints, legitimized the prevailing legislative–bureaucratic relationship, which liberated Congress from the necessity of making general laws. And as Congress’s function of overseeing the bureaus eclipsed that of deliberating and making laws, its power moved from the body as a whole to committees, subcommittees, and the offices and staffs of individual members who control them.