by John Marini
It is clear, after several decades of experience, that control of the presidency has not resulted in the conservative transformation of American politics. Nor will such a change occur through the judiciary. In the final analysis, it requires the transformation of the legislature. There is little doubt, however, that the presidential office remains the critical catalyst that can create the kind of partisan consensus—animated by the original principles of the Republican Party and of America—that is necessary to bring about such an electoral realignment and to save the Constitution.
Notes
PART 1: THE TRIUMPH OF THE ADMINISTRATIVE STATE OVER THE CONSTITUTION
1 John Marini, The Politics of Budget Control: Congress, the Presidency, and the Growth of the Administrative State (New York: Taylor & Francis, 1992).
2 Gordon S. Jones and John A. Marini, eds., The Imperial Congress: Crisis in the Separation of Powers (New York: Pharos Books, 1988).
3 John Marini and Ken Masugi, eds., The Progressive Revolution in Politics and Political Science: Transforming the American Regime (Lanham, MD: Rowman & Littlefield, 2005).
4 John Marini, “Trump and Conservatism” (lecture, Hillsdale College Kirby Center Constitution Day Celebration, Washington, DC, September 16, 2016). https://www.youtube.com/watch?v=M3maovSNm8M.
CHAPTER 1: HUNTING THE ADMINISTRATIVE STATE
1 Alexis de Tocqueville, Democracy in America, ed. and trans. Harvey Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), 664–65.
2 Leo Strauss, On Tyranny, ed. Victor Gourevitch and Michael S. Roth, corrected and expanded edition (Chicago: University of Chicago Press, 2013), 27.
3 Ibid., 194–95.
4 Leo Strauss, Natural Right and History (Chicago, University of Chicago Press, 1953), 314.
5 G. W. F. Hegel, Philosophy of Right, trans. T. M. Knox (London: Oxford University Press, 1977), 10.
6 G. W. F. Hegel, Lectures on Natural Right and Political Science, trans. J. Michael Stewart and Peter C. Hodgson (Berkeley: University of California Press, 1995), 242. See also Hegel, Philosophy of Right, 170–73, infra.
7 Leo Strauss, Liberalism Ancient and Modern (New York: Basic Books, 1968), 24.
8 George Washington, “Circular to the States” (1783), in George Washington: A Collection, ed. W. B. Allen (Indianapolis: Liberty Fund), 240–41.
CHAPTER 2: OUR ABANDONED CONSTITUTION
1 This article originally appeared as “Abandoning the Constitution,” Claremont Review of Books XII:2, Spring 2012. https://www.claremont.org/crb/article/abandoning-the-constitution/. Marini responded to commentators in “On Further Review,” December 12, 2012, http://www.claremont.org/crb/basicpage/42/. See Appendix I.
2 Thomas Paine, “Rights of Man” in The Political Works of Thomas Paine in Two Volumes, vol. 1, ed. Richard Carlile (London: W. T. Sherwin, 1817), 29.
3 Ibid.
4 Ibid.
5 Thomas Paine, “Rights of Man” in The Political Works of Thomas Paine in Two Volumes, vol. 1, ed. Richard Carlile (London: W. T. Sherwin, 1817), 29–30.
6 Franklin D. Roosevelt, The Public Papers and Addresses of Franklin D. Roosevelt, vol. 1 (New York: Random House, 1938).
7 US Declaration of Independence, 1776.
8 Ibid.
9 Franklin D. Roosevelt, Public Papers.
10 Mary Parker Follet, The New State: Group Organization the Solution of Popular Government (Mansfield Ctr., CT: Martino Publishing, 2016; originally published Longmans, 1916), 137–38.
11 John Dewey, “Liberalism and Social Action,” in The Later Works, vol. 11, ed. Jo Ann Boydston (Carbondale: University of Southern Illinois Press, 1987), 25–26.
12 Ibid., 48.
13 Roscoe Pound, Introduction to the Philosophy of Law (New Jersey: Lawbook Exchange, Ltd., 2003; originally published New Haven: Yale University Press, 1922), 84–85.
14 Harry V. Jaffa, “Judicial Conscience and Natural Rights,” in Original Intent and the Framers of the Constitution: A Disputed Question (Washington, DC: Regnery Gateway, 1994), 238–39.
15 Roscoe Pound, “Justice According to Law,” Midwest Quarterly 1 (1959): 226.
16 Roscoe Pound, “Juristic Problems of National Progress,” American Journal of Sociology 22, no. 6 (May 1917): 721–33, https://www.jstor.org/stable/2764004.
17 Roscoe Pound, “Justice According to Law,” Midwest Quarterly 1 (1959): 226.
18 Samuel P. Huntington, “Congressional Responses to the Twentieth Century,” in David B. Truman, ed. The Congress and America’s Future (Englewood Cliffs, NJ: Prentice-Hall, 1965), 6.
19 James L. Sundquist, The Decline and Resurgence of Congress (Washington, DC: The Brookings Institution, 1981), 411.
20 Charles R. Kesler, “The Tea Party Spirit,” Claremont Review of Books 10, no. 1 (Winter 2009/10). http://www.claremont.org/crb/article/the-tea-party-spirit/.
21 Ibid.
22 Ibid.
23 John Marini, The Politics of Budget Control: Congress, the Presidency, and the Growth of the Administrative State (New York: Taylor & Francis, 1992), xiii.
CHAPTER 3: DONALD TRUMP AND THE AMERICAN CRISIS
1 This article appeared online in CRB Digital, July 22, 2016, https://www.claremont.org/crb/basicpage/donald-trump-and-the-american-crisis/.
2 Friedrich Nietzsche, On the Advantage and Disadvantage of History for Life, trans. Peter Preuss (Indianapolis: Hackett Publishing Company, 1980), 62.
CHAPTER 4: CONGRESS: RELUCTANT DEFENDER OF THE ADMINISTRATIVE STATE
1 This chapter was first presented as a paper at the Annual Meeting of the American Political Science Association, 2016, Philadelphia, Pennsylvania.
2 I have provided examples of Congress adapting itself to the requirements of the administrative state from Samuel Huntington and James Sundquist in an earlier chapter, “Our Abandoned Constitution.”
CHAPTER 5: STATE OR CONSTITUTION? THE POLITICAL CONDITIONS OF BUREAUCRATIC RULE: THE EXECUTIVE, CONGRESS, AND THE COURTS UNDER THE ADMINISTRATIVE STATE
1 The theoretical origins of the administrative state rest upon the Hegelian assumption of the rationality of the historical process. This philosophy of History established the intellectual and political foundations of Progressivism. The Progressives sought to achieve a complete break with the American Founding that resulted in a rejection of constitutionalism. It was animated by the necessity of transcending nature and entailed a rejection of philosophic reason as the ground of human understanding. The rational state itself, the culmination of the historical process, would become the vehicle for the administration of progress. Hegel had insisted that “the science of the state is to be nothing other than the endeavor to apprehend and portray the state as something inherently rational.” Within the state, the rational would be made real. The Progressives accepted the Hegelian assumption that “the general dividing line between constitutions is between those that are based on nature and those based on freedom of the will.” It is in the exercise of freedom, or will, that man establishes his morality, indeed his humanity. There can be no higher moral authority than that derived from will, or freedom. Nature, or reason, no longer imposes limits on human choice. Consequently, the modern state was meant to create the rational structures capable of generating the technical means of carrying out will by making it real, or practicable. It required unlimited power in the government of the state and was meant to replace limited government, or constitutionalism.
2 What is at stake in this quarrel becomes clear in light of the disagreement concerning a comprehensive understanding of the meaning of justice. This can be made intelligible only in terms of those political theories that have given meaning to human experience. In the past two centuries, those theories were established on the foundation of nature or History. The modern doctrine of natural right had created the theoretical ground of limited government and constitutionalism. The doctrine of philosophy of History had culminated in the concept of the rational state. It provided the theoretical foundations of Progressivism
. Although the doctrine of History has prevailed, and although its theoretical claims are taken for granted, it is no longer well understood. However, the doctrine of natural right has been revived in historical memory, but its meaning is almost wholly obscure. In short, the partisans of both views defend a theory of justice and a practice of politics of which they have little understanding.
3 There seems to be little doubt that the American Founders considered the legislative branch to be the first branch of government. It was thought to be the branch with the most power and therefore the most difficult to rein in. It armed the other two branches with significant powers, but they were confident 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 institution and unique power. 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. It would also serve the useful purpose of allowing ambition to counteract ambition.
4 See John Marini, “Can Congress Survive?” Law and Liberty Blog, May 21, 2012. http://www.libertylawsite.org/liberty-forum/can-congress-survive/. James Burnham, Congress and the American Tradition (Chicago: Henry Regnery, 1959).
5 See John Samples, “First Among Equals: Reconsidering Congressional Power in James Burnham’s Congress and the American Tradition,” Law and Liberty (blog), May 21, 2012, http://www.libertylawsite.org/liberty-forum/first-among-equals-reconsidering-congressional-power-in-james-burnhams-congress-and-the-american-tradition.
6 “House Appropriations after the Republican Revolution,” John H. Aldrich, Brittany N. Perry, David W. Rohde, Congress & the Presidency 39:229–53, 2012.
7 Ibid., 234.
8 The Constitution established a way of structuring political conflict in a manner most conducive to the establishment of justice and the avoidance of tyranny. The separation of powers was thought to be the best way of ensuring that practical reason, or prudence, rather than unbridled will, would moderate that inevitable conflict in a manner compatible with the defense of human freedom. Consequently, all of the branches of government were meant to understand their powers in light of their constitutional purpose. The two political branches have different constituencies that provide for an electoral base that establishes their independence. That independence requires, first of all, that those who hold office under the Constitution must understand their duties in terms of the institution to which they have been elected or appointed. Secondly, they must pursue the national or common good, as it is understood from the perspective of that institution. Moreover, each branch of government must participate in defining a common good, one that satisfies the interests of the various constituencies as well as the national interest. As a result, there arises a different perspective on the meaning of the public interest.
9 Moreover, Madison’s political science, derived from prudence or practical reason becomes unintelligible. Prudence was meant to negotiate the terrain between theoretical and practical reason by establishing the moral conditions of free government through distinguishing what is possible, or doable, from what is knowable. The moral law is understood in terms of the natural law, or reason. It can be made intelligible through practical reason, and approximated prudentially, but it cannot be promulgated. However, if morality is established by will, or practical reason, it establishes the ground of what is known and what is right. The moral will must be promulgated. The fundamental practical problem becomes one of making the will actual. That requires not prudence but technical, or scientifically rational, or expert knowledge. It is not surprising, therefore, that for Wilson and the Progressives, the actual power of modern government resides in the realm of administration.
10 Adrian Vermeule, “The Administrative State: Law, Democracy, and Knowledge,” in Oxford Handbook of the U.S. Constitution, ed. Mark Tushnet, Mark A. Graber, and Sanford Levinson (New York: Oxford University Press, 2015).
11 Perhaps, because of the importance of public opinion, it is still the case that the administrative state can gain legitimacy only in light of the authority of the Constitution. In that case, the importance of constitutional law derives from the necessity of legitimizing the policies of the administrative state as an ongoing process. Or, because the administrative state is an inevitability of modernity, it must be made palatable to the unenlightened electorate through the judiciary. Therefore, the Constitution can only be defended as a legal document.
12 William J. Novak, “The Legal Origins of the Modern American State” (essay), 1, http://www.constitution.org/ad_state/novak.htm.
13 Ibid, 3.
14 Nor is that surprising when you consider that nearly all of the personnel of modern governments comes out of the institution that was meant to be the real heart of the administrative state, the university. It was not without reason that Hegel had called the state a rational state, a much more comprehensive term than administrative state (just one element of the state). He understood it as the rule of organized intelligence. In other words, those trained in its disciplines and the positive tradition of law, all meant to be the applied sciences of the state, had already been shaped by a theoretical tradition that had repudiated constitutionalism. It is nearly impossible to defend constitutionalism in a meaningful way from within an intellectual tradition established by a philosophy of History.
15 This is quite apparent in a unanimous decision of the Supreme Court in 1984. In Block v. Community Nutrition Institute, Justice Sandra Day O’Connor rejected consumer claims that the Agriculture Department had used its statutory authority to keep milk prices high. In her opinion, she noted: “Congress intended that judicial review of market orders ordinarily be confined to suits by dairy handlers.… Allowing consumers to sue the secretary would severely disrupt the Act’s complex and delicate administrative scheme.… [T]he congressional intent to preclude consumer suits is ‘fairly discernible’ in the detail of the legislative scheme. The Act contemplates a cooperative venture among the Secretary, producers, and handlers; consumer participation is not provided for or desired under that scheme.” The court’s purpose was to defend the administrative nexus created by the legislature. There seems to be no consideration for the rights of those harmed by the legislation or the administrative action. Moreover, the judiciary does not seem to consider its own independence in such cases arising out of the administrative process. In other words, the policy–administration nexus, established by the political branches of government and defended by the court in the legal arena, must of necessity determine the ground of the judgment of all of the branches. It is the necessity to defend the policy of the legislature, and it is not judicial independence that predetermines the outcome of decisions arising from the actions of the administrative bureaucracy.
16 Consequently, the American political institutions, primarily Congress and the presidency, are animated by political necessities imposed by the requirements of an administrative state. Although the Supreme Court still takes the Constitution seriously, it has become the arbiter of the meaning of the Constitution primarily because the other branches do not take their constitutional powers seriously enough to defend their own constitutional prerogatives. Indeed, the political branches only question the authority of the Supreme Court when the court threatens the use of powers that are essential to the operation of the administrative state. Nonetheless, it seems the political branches need not worry about the ongoing support of the courts. The courts have become major players in the policy arena.
17 See Appendix II for how the different parties’ view of the role of the Supreme Court was revealed in the Robert Bork confirmation struggle.
CHAPTER 6: BUDGETS, SEPARATION OF POWERS
, AND THE RISE OF THE ADMINISTRATIVE STATE
1 I refer to other critics of the administrative state and their conceptions of Congress in “Congress in Search of Itself,” Law and Liberty (blog), March 1, 2017, http://www.libertylawsite.org/liberty-forum/congress-in-search-of-itself/.
CHAPTER 7: PROGRESSIVISM, IMMIGRATION, AND THE TRANSFORMATION OF AMERICAN CITIZENSHIP
1 Joseph Cropsey, “Karl Marx,” in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey (Chicago: Rand McNally, 1963), 722.
2 The scientific method would subsequently replace the faculty of reason as the means by which to make that knowledge useful to man. The social sciences, then, would become the applied science of the rational state. The crucial condition of philosophy of History, or historicism, was the abandonment of the doctrine of natural right. Thus, the new sciences rejected not only religion but metaphysical reason—as well as prudence, or practical reason—in exchange for a scientific methodology. As Leo Strauss has observed, historicism “stands or falls by the denial of the possibility of theoretical metaphysics and of philosophic ethics or natural right.” Natural Right and History (Chicago: University of Chicago Press, 1953), 29.
3 Georg Wilhelm Hegel had established the philosophic ground of the world view that informed Progressivism. He did so in his comprehensive defense of the rational state, in which it would become possible to reconcile the particular and general will, or freedom and necessity. In Hegel’s view, “the state is the mind on earth and consciously realizing itself there.” It had replaced nature and nature’s God. He observed that “the State is the divine Idea, as it exists on earth. In this perspective, the State is the precise object of world history in general. It is in the State that freedom attains its objectivity, and lives in the enjoyment of this objectivity. For the law of the State is the objectification of Spirit; it is will in its true form. Only the will that is obedient to the law is free.… Insofar as the State, our country, constitutes a community of existence, and insofar as the subjective will of human beings submits to laws, the antithesis between freedom and necessity disappears. The rational is the necessary, the substantiality of a shared existence; and we are free to the extent that we acknowledge it as law, and follow it as the very substance of our being. The objective and subjective will are then reconciled, as one and the same serene whole.” G. W. F. Hegel, Introduction to the Philosophy of History, trans. Leo Rauch (Indianapolis, IN: Hackett Publishing Company, 1988), 42. Accordingly, Hegel insisted that “man must therefore venerate the state as a secular deity.” First and last quotations are from Philosophy of Right, trans. T. M. Knox (London: Oxford University Press, 1942), 279, 285.