Posted on 11/24/2007 6:49:20 PM PST by Delacon
For those who hold the Constitution of the United States in high regard and who are concerned about the fate of its principles in our contemporary practice of government, the modern state ought to receive significant attention. The reason for this is that the ideas that gave rise to what is today called "the administrative state" are fundamentally at odds with those that gave rise to our Constitution. In fact, the original Progressive-Era architects of the administrative state understood this quite clearly, as they made advocacy of this new approach to government an important part of their direct, open, comprehensive attack on the American Constitution.
As a practical matter, the modern state comes out of Franklin Roosevelt's New Deal, which launched a large bureaucracy and empowered it with broad governing authority. Also, as a practical matter, the agencies comprising the bureaucracy reside within the executive branch of our national government, but their powers transcend the traditional boundaries of executive power to include both legislative and judicial functions, and these powers are often exercised in a manner that is largely independent of presidential control and altogether independent of political control.
But while the actual growth of the administrative state can be traced, for the most part, to the New Deal (and subsequent outgrowths of the New Deal like the Great Society), the New Deal merely served as the occasion for implementing the ideas of America's Progressives, who had come a generation earlier. It is the origins of the modern state--and the constitutional implications of that change--upon which we will focus our attention.
The consequences of adopting Progressive ideas as a foundation for a major piece of our contemporary government are profound, especially when one considers the impact of these ideas on the bedrock principles of our Constitution. It is best to begin with an illustration. Consider the plight of the C. T. Chenery Corporation in the early 1940s.
In 1935, Congress had enacted the Public Utility Holding Act, which required that public utility holding companies reorganize their corporate structures and that the recently created Securities and Exchange Commission (SEC) oversee and approve the reorganization plans. The law did not name any specific standard that the SEC was to use in evaluating the plans, and the SEC itself did not set any particular rule to govern its decisions.
Thus, when the Federal Water Service Corporation was to be reorganized, its management group--the C. T. Chenery Corporation--had no way of knowing what it had to do in order to maintain its controlling interest in the company. When it became clear that the SEC would allow preferred stockholders to convert their shares of the old company into shares of the newly reorganized company, the Chenery Corporation went out and bought itself a large block of preferred stock on the open market. The reorganization plan approved by the SEC did, as expected, allow preferred stockholders to convert their shares; but the SEC explicitly excluded Chenery from making such a conversion, thus depriving Chenery of its ownership.
The reason for the SEC's exclusion of the Chenery Corporation was that the agency decided that it was impermissible for a management company to purchase stock during a reorganization. This was not a prohibition that was part of any law, rule, or regulation when the Chenery Corporation made the purchase. Nor was it a prohibition that applied to any company other than Chenery. Nor was it a prohibition that the SEC ever employed again in the future. It was, instead, a standard that the SEC invented on the spot and applied retroactively to this one company.
When the Chenery Corporation brought suit in federal court, protesting the obvious violation of the rule of law, the SEC countered that the courts should defer to the expertise of the agency and allow the agency to exercise its judgment on a case-by-case basis. The Supreme Court, in 1943, did not find such an argument compelling, reasoning that, "before transactions otherwise legal can be outlawed or denied their usual business consequences, they must fall under the ban of some standards of conduct prescribed by an agency of government"[1]--that the SEC must, in other words, act according to the rule of law.
But four years later, the SEC found the Court friendlier to its ad hoc decision making. Having kept the Chenery case in litigation during this time, the SEC persuaded the Court to change its mind, and in 1947, the Court concluded that any "rigid" requirement that agencies always act according to pre-established rules "would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise." To insist that agencies follow pre-existing rules in making their decision would be, the new Court claimed, "to exalt form over necessity."[2] The rule of law, in other words, would have to take a back seat to the social expediency provided by expert administration.
The Founding, the Progressive Era, and the Rule of Law
Arbitrary Government vs. the Rule of Law
The Chenery case is now commonly cited in administrative law courses as an example of the vast discretion granted to bureaucratic agencies when Congress delegates to them its legislative power. The case also serves as a good illustration of the kind of injustice the American Founders sought to avoid by instituting a Constitution structured around the separation of powers and grounded in the rule of law. The contrast here helps us see the principled differences between Progressive and Founding-era notions of what constitutes good government.
The Founders understood that there are two fundamental ways in which government can exercise its authority. The first is a system of arbitrary rule, where the government decides how to act on an ad hoc basis, leaving decisions up to the whim of whatever official or officials happen to be in charge; the second way is to implement a system grounded in the rule of law, where legal rules are made in advance and published, binding both government and citizens and allowing the latter to know exactly what they have to do or not to do in order to avoid the coercive authority of the former.
As Thomas G. West has explained, the Founders implemented a rule-of-law system partly out of reaction to schemes like those favored by Massachusetts Governor John Winthrop in the early years of Puritanism in the United States. Winthrop believed that governmental decision making ought to depend upon the goodness of the government official. Under such a plan, West explains,
where the prudence of the magistrate decides each case, no one could know for sure whether what he did would be permitted or forbidden, or what the penalty would be. Nothing except the good will of the magistrate keeps the government from acting according to whimsy or dictatorial willfulness.[3]
In the Chenery case, the company had no way of knowing what to do or not to do in order to maintain its ownership and was forced to rely on whatever ad hoc decision the administrators in the SEC felt like making. Against such a scenario, the advantages of the Founders' rule-of-law system are evident.
First, the rule of law facilitates government by the consent of the governed. Since rules are made in advance and apply to a broad array of cases that may arise in the future, the people have the opportunity to consent by way of the deliberation and votes of their elected representatives. In a situation where ad hoc decision making is used, a decision is made only once a particular case arises, thus providing no opportunity for the citizens to grant their consent.
Second, as West explains, the rule of law makes it much more difficult "for government to play favorites, to benefit its personal friends and harm its personal enemies." It is thus the best means of maintaining a government dedicated to the equal protection of its citizens' rights, which is the aim of all legitimate government, according to the American Declaration of Independence.[4]
Securing the Rule of Law: The Separation of Powers
In order to secure individual rights in a system based upon the rule of law, the Founders implemented a constitutional design centered on the separation of powers. Under the separation-of-powers system, the legitimate authority of government would be exercised by three co-equal departments, each making sure that the others remained within the confines of their proper constitutional places.[5] The fundamental aim of the separation of powers, which the American Founders developed from John Locke's Second Treatise of Government and, even more directly, from Montesquieu's Spirit of the Laws,[6] was to safeguard rights against the possibility of arbitrary government. Indeed, James Madison in Federalist 47, echoing Thomas Jefferson, redefined "tyranny" to mean the absence in government of the separation of powers.[7]
It is from this fundamental aim of separation of powers that we can discern three important tenets of American constitutionalism, although this is by no means an exhaustive list.
The Progressives' Rejection of the Separation of Powers
For the American pioneers of the administrative state--the Progressives of the late 19th and early 20th centuries--this older, limited understanding of government stood in the way of the policy aims they believed the state ought to pursue in a world that had undergone significant evolution since the time of the Founding. They believed that the role of government, contrary to the perceived ahistorical notion of Founding-era liberalism, ought to adjust continually to meet the new demands of new ages. As Woodrow Wilson wrote in The State, "Government does now whatever experience permits or the times demand."[13]
A carefully limited government may have been appropriate for the Founding era, when the primary concern was throwing off central government tyranny, but in order for government to handle the demands placed upon it by modern times, the Founding-era restrictions on its powers and organization would have to be eased and the scope of government expanded. This is why John Dewey criticized the Founders for believing that their notions about limited government transcended their own age; they "lacked," he explained, "historic sense and interest."[14] At the most fundamental level, therefore, the separation of powers was a deadly obstacle to the new liberalism, since it was an institutional system intended to keep the national government directed toward the relatively limited ends enumerated in the Constitution and the Declaration of Independence.
Beyond this fundamental difference on the very purpose of government, the three tenets of the separation of powers mentioned above posed a particular problem for the Progressives' vision of national administration at the outset of the 20th century. The range of activities they wanted the government to regulate was far too broad for Congress to handle under the original vision of legislative power.
Instead, to varying degrees, the fathers of progressive liberalism envisioned a delegation of rulemaking, or regulatory, power from congressional lawmakers to an enlarged national administrative apparatus, which would be much more capable of managing the intricacies of a modern, complex economy because of its expertise and its ability to specialize. And because of the complexities involved with regulating a modern economy, it would be much more efficient for a single agency, with its expertise, to be made responsible within its area of competence for setting specific policies, investigating violations of those policies, and adjudicating disputes.
The fulfillment of progressive liberalism's administrative vision, therefore, required the evisceration of the non-delegation doctrine and the adoption of combination of functions as an operating principle for administrative agencies. Furthermore, the Progressives believed that administrative agencies would never be up to the mission they had in mind if those agencies remained subservient to national political institutions. Since modern regulation was to be based upon expertise--which was, its advocates argued, objective and politically neutral--administrators should be freed from political influence. Thus, the constitutional placement of administration within the executive and under the control of the President was a problem as the Progressives looked to insulate administrators not only from the chief executive, but from politics altogether.
It is the Progressives' desire to free bureaucratic agencies from the confines of politics and the law that allows us to trace the origins of the administrative state to their political thought. The idea of separating politics and administration--of grounding a significant portion of government not on the basis of popular consent but on expertise--was a fundamental aim of American Progressivism and explains the Progressives' fierce assault on the Founders' separation-of-powers constitutionalism. It was introduced into the United States by Progressive reformers who had themselves learned the principle from what was then the "cutting edge" theory of history and the state developed in 19th century Germany.
In this regard, no one was more important to the origins of the administrative state in America than Woodrow Wilson and Frank Goodnow. Wilson served as the 26th President of the United States and was a leading academic advocate of Progressive ideas long before his entry into politics. Much of his contribution to Progressive thought came in his work from the 1880s, when he was in the early stages of a prolific academic career that would see him in posts at Bryn Mawr College, Wesleyan University, and Princeton (of which he became president) prior to his entry into political life in 1910. Goodnow was the founding president of the American Political Science Association and a pioneer in the new field of administrative law who started to make his own contributions to the Progressive movement in the last decade of the 19th century.
Woodrow Wilson
Beyond Civil Service Reform: The Separation of Politics and Administration
The idea of shielding administration, at least to some degree, from political influence had been around in the United States for some time--at least since the reaction against the 19th century spoils system, in which many jobs in the federal bureaucracy were doled out on the basis of one's affiliation with the party currently in power as opposed to one's actual merit or skill.
The establishment of the Civil Service Commission through the Pendleton Act of 1883 marked a significant victory for opponents of the spoils system, but it took the Progressives, starting with Wilson and Goodnow, to take this rather narrow inclination against the influence of politics in administration and make it part of a thoughtful, comprehensive critique of American constitutionalism and part of a broader argument for political reform. While the opponents of the spoils system certainly wanted to shield administration from political cronyism, they did not offer a new theory of administration. The Progressives, by contrast, were concerned less with eradicating the evils of political cronyism than with creating a realm of neutral administrative discretion shielded from political influence.
Wilson introduced the concept of separating politics and administration--of treating administrative governance as an object of study entirely separate from politics--in a series of essays in the latter part of the 1880s.[15] Goodnow expanded upon this Wilsonian concept in the 1890s and eventually published a book in 1900 titled Politics and Administration.
The fundamental assumption behind the vast discretion that Progressives wanted to give to administration was a trust in or optimism about the selflessness, competence, and objectivity of administrators, and thus a belief that the separation-of-powers checks on government were no longer necessary or just. If the Framers of the Constitution had instituted the separation of powers out of fear of "the abuses of government"--fear that the permanent self-interestedness of human nature could make government "administered by men over men"[16] a threat to the natural rights of citizens--then the advocates of administrative discretion concluded that such fears, even if well-founded in the early days of the republic, no longer applied in the modern era. Thus, administration could be freed from the shackles placed upon it by the separation of powers in order to take on the new tasks that Progressives had in mind for the national state. This key assumption behind the separation of politics and administration is exemplified in Wilson's political thought.
The strong Progressive belief in the enlightenment and disinterestedness of administrators stands as an instructive contrast to the permanent self-interestedness that the Framers of the U.S. Constitution saw in human nature.[17] Just as this sobriety about the potential for tyranny led the Framers to circumscribe carefully the authority of the national government, the Progressives' passionate optimism fueled their call for maximum discretion for administrators.
This is not to suggest that the Framers denied discretionary power to the national government; no reader of Federalist 23--or many other papers of The Federalist, for that matter--could draw such a conclusion. Rather, they understood that such discretion had to be channeled through the forms and law of the Constitution in order to be safe for liberty. Thus, as Alexander Hamilton explained in Federalist 23 and elsewhere, the vigorous discretion that the national government must have is made safe by the "most vigilant and careful attention of the people."[18] For the people to exercise this kind of vigilance, the officers who exercise discretion must do so in a system of clear electoral accountability and within the confines of the rule of law.
It is precisely this kind of accountability to the realm of politics from which the Progressives, by contrast, wanted to free administrators. For the Progressives, there was something special about civil servants that somehow raised them above the ordinary self-interestedness of human nature. Such confidence came from a faith that the progressive power of history had elevated public servants to a level of objectivity. They would, supposedly, be able to disregard their own private or particular inclinations in order to dedicate themselves to the objective good. Because of this disinterestedness, restraints on their discretion were unnecessary.
Wilson subscribed thoroughly to this doctrine of historical progress, which he had learned from reading German state theorists like G. W. F. Hegel and Johann Bluntschli and from his own teachers like Richard T. Ely, who had received his education at German universities. Wilson came to believe that history had solved the problem of faction--that human nature was no longer a danger in democratic government. He wrote frequently of a "steady and unmistakable growth of nationality of sentiment," of a growing unity and objectivity in the American mind, and concluded that the power of the national government could be unfettered because one faction or part of the country was no longer a threat to the rights of another.[19]
Administration and the "Living Constitution"
With the threat of faction having receded as a result of historical progress, Wilson argued, a new understanding of the ends and scope of government was in order. This new understanding required an evolutionary understanding of the Constitution--one in which the ends and scope of government are determined by looking not to the pre-established law of the Constitution, but instead to the new demands placed upon government by contemporary historical circumstances.
In his New Freedom campaign for President in 1912, for instance, Wilson urged that the rigid, mechanical, "Newtonian" constitutionalism of the old liberalism be replaced by a "Darwinian" perspective, adjusting the Constitution as an organic entity to fit the ever-changing environment. Wilson also blamed separation-of-powers theory for what he believed to be the inflexibility of national government and its inability to handle the tasks required of it in the modern age:
The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other, as checks, and live.[20]
Wilson saw the separation of powers as a hindrance because efficiency was to be valued over anything else. As he claimed in 1885, efficiency had become the pre-eminent principle in government because history had brought us to an age where the administrative functions of government were most important: "The period of constitution-making is passed now. We have reached a new territory in which we need new guides, the vast territory of administration."[21]
Wilson's work on empowering administration with significant discretion to regulate national progress seems to have taken off immediately following his graduate education at Johns Hopkins University. It was at Hopkins where Wilson imbibed deeply in the administrative writings of German authors who belonged to the Hegelian tradition, especially Bluntschli, and where he learned from teachers like Ely, who had studied under Bluntschli at Heidelberg.
Wilson's first sustained work on administration came right at this time in an unpublished essay written in November 1885, titled "The Art of Governing." This work led to the writing, the following year, of Wilson's seminal essay, "The Study of Administration," where the case for separating politics and administration and for freeing administration from the confines of constitutional law is made explicitly for the first time in the United States. Wilson subsequently elaborated on this case in notes he prepared for an annual lectureship at Johns Hopkins from 1888 to 1897.
But even prior to entering graduate school, Wilson's views on administration had been taking shape, as evidenced by his 1882 essay "Government By Debate." It was in this essay that Wilson first suggested freeing administration from political influence because large parts of national administration were, he contended, apolitical and based on expertise. Administrative departments, Wilson wrote then, "should be organized in strict accordance with recognized business principles. The greater part of their affairs is altogether outside of politics."[22]
Wilson's thesis in his works on administration was that it was far better and more efficient for a professional class of experts, instead of a multiplicity of politicians with narrow, competing interests, to handle the complex business of the modern state. To the objection that entrusting administrators with such discretion might not comport with the Constitution's distribution of power, Wilson responded that administrative principles and constitutional principles were distinct and, thus, that constitutional limitations could not easily be applied to the exercise of administrative authority. The constitutional principle of checks and balances, for example, interfered with efficiency and should not be applied to the exercise of administrative power: "Give us administrative elasticity and discretion," he urged; "free us from the idea that checks and balances are to be carried down through all stages of organization."[23]
Relying heavily on European models of administrative power, Wilson laid out a vision for administrative discretion in 1891 that directly rejected the rule-of-law model:
The functions of government are in a very real sense independent of legislation, and even constitutions, because [they are] as old as government and inherent in its very nature. The bulk and complex minuteness of our positive law, which covers almost every case that can arise in Administration, obscures for us the fact that Administration cannot wait upon legislation, but must be given leave, or take it, to proceed without specific warrant in giving effect to the characteristic life of the State.[24]
Wilson well understood that this wide latitude for administrative action undermined the separation of powers, which he attacked and contrasted with what he called the "actual division of powers," where there are many "legislative and judicial acts of the administration."[25]
Enlightened Bureaucrats: Importing the European State
Wilson's argument for freeing administrators from close political control was grounded in the characteristic Progressive confidence in the expertness and objectivity of the administrative class. For years, Wilson had been urging special education for future administrators at elite universities. He argued that "an intelligent nation cannot be led or ruled save by thoroughly trained and completely-educated men. Only comprehensive information and entire mastery of principles and details can qualify for command." Wilson had faith in the power of expertise, of "special knowledge, and its importance to those who would lead."[26] He later referred to "the patriotism" and "the disinterested ambition" of the new administrative class.[27]
Wilson is thus a critical figure for the Progressive vision of administration, because he is largely responsible for applying Hegelian optimism about the objectivity of administrators to the American system. Wilson assumed, just as Hegel had in the Philosophy of Right, that a secure position in the bureaucracy, with tenure and good pay, would relieve the civil servant of his natural self-interestedness, thereby freeing him of his particularity and allowing him to focus solely on the objective good of society.[28]
Wilson's model for this conception of administrators, he freely acknowledged, was almost entirely foreign to American constitutionalism. Yet it was his own notion of the distinction between politics and administration, Wilson argued, that cleared the way for importing what was essentially a Prussian model of administration into the United States. Precisely because administration was to be insulated from politics and from the Constitution, an administrative system that had come from a monarchy could be brought to America without harming America's republican political institutions. As Wilson memorably put it in "The Study of Administration":
It is the distinction, already drawn, between administration and politics which makes the comparative method so safe in the field of administration. When we study the administrative systems of France and Germany, knowing that we are not in search of political principles, we need not care a peppercorn for the constitutional or political reasons which Frenchmen or Germans give for their practices when explaining them to us. If I see a murderous fellow sharpening a knife cleverly, I can borrow his way of sharpening the knife without borrowing his probable intention to commit murder with it; and so, if I see a monarchist dyed in the wool managing a public bureau well, I can learn his business methods without changing one of my republican spots.[29]
Or, as Wilson asked elsewhere in the "Study," "Why should we not use such parts of foreign contrivances as we want, if they be in any way serviceable? We are in no danger of using them in a foreign way. We borrowed rice, but we do not eat it with chopsticks."[30] And so Wilson knew that his vision for administration was a novelty in America. In fact, when he later taught administration in the 1890s, he said that there was only one author other than himself who understood administration as a separate discipline: Frank Goodnow.[31]
Frank Goodnow
When Wilson made this observation about Goodnow, he was referring to Goodnow's Comparative Administrative Law, published in 1893. That book certainly put Goodnow on the map, although his real contributions to the modern understanding of administration's place in the political order came primarily with the publication of Politics and Administration in 1900. Two other works--Social Reform and the Constitution (1911) and The American Conception of Liberty and Government (1916)--later helped to clarify Goodnow's Progressive agenda, especially for the courts, and to fill out his views on the fundamental purposes of civil government. Goodnow produced almost all of this work while a professor at Columbia University, where he had been brought by his mentor, John Burgess, to teach political science and law and where he became the first to teach administrative law in the United States. Prior to teaching at Columbia, Goodnow had spent a year studying in France and Germany; he would go on to finish his career at Johns Hopkins, where he served as president until his retirement in 1929.[32]
Although a student of Burgess, Goodnow was much more radical than Burgess in his Progressivism. Goodnow looked for ways that American national government could be modified to accommodate Progressive policy aims; this goal could best be accomplished, Goodnow believed, by freeing administration to manage the broad scope of affairs that Progressives believed needed government intervention.
Like Wilson, Goodnow argued that government needed to adjust its very purpose and organization to accommodate modern necessities;[33] and, like Wilson, he believed that history had made obsolete the Founders' dedication to protecting individual rights and their consequent design of a carefully limited form of national government. In Social Reform and the Constitution, Goodnow complained about the "reverence" for constitutional law, which he regarded as "superstitious" and an obstacle to genuine political and administrative reform.[34]
In Politics and Administration, Goodnow made clear that his push for administrative reform was not simply or even primarily aimed at correcting the corruption of the spoils system. Rather, administrative reform was, for Goodnow, instrumental to the end of achieving Progressive, big-government liberalism. Progressives had in mind a wide array of new activities in which they wanted national-government involvement; such involvement could not be achieved with the old system of placing administration under political direction:
Before we can hope that administrative officers can occupy a position reasonably permanent in character and reasonably free from political influence, we must recognize the existence of an administrative function whose discharge must be uninfluenced by political considerations. This England and Germany, and France though to a much less degree, have done. To this fact in large part is due the excellence of their administrative systems. Under such conditions the government may safely be intrusted with much work which, until the people of the United States attain to the same conception, cannot be intrusted to their governmental organs.[35]
Understanding administrative reform this way--as a means to securing the broader aims of Progressive liberalism--is what makes the work of Goodnow, and Wilson too, so much more significant to the development of modern American thought and politics than had been the case with the civil-service reformers.
Goodnow's Rejection of the Founding Principles
Goodnow and his fellow Progressives envisioned an almost entirely new purpose for the national government. Government itself, therefore, had to be viewed through an historical lens. The principles of the original Constitution, Goodnow reasoned, may have been appropriate for the Founding era, but now, "under present conditions[,] they are working harm rather than good."[36] The error that the Founders made was not in constructing government as they did, but rather in thinking that their particular construction and manner of conceiving politics would transcend their own age and would be appropriate for future ages as well. They did not realize the historical contingency of their principles.[37]
The modern situation, Goodnow argued, called for less focus on constitutional principle and law and much greater focus on empowering and perfecting administration. He even repeated, using almost the same words, Wilson's proclamation from 1885 that the nation had to move from constitutional to administrative questions. "The great problems of modern public law are almost exclusively administrative in character," wrote Goodnow. "While the age that has passed was one of constitutional, the present age is one of administrative reform."[38] In order to address the administrative questions that history was pressing upon the nation, Goodnow urged a focus not on the "formal" governing system (i.e., the rule of law under the Constitution), but on the "real" governing system, which becomes whatever is demanded by the necessities of the time.[39]
The focus of the Founders' constitutionalism on government's permanent duty to protect individual rights was an impediment to the marked expansion of governmental power that Progressives desired; thus, the ideas that animated the Founders' conception of government had to be discredited.
Goodnow understood the political theory of the Founding quite well. He knew that the notion that government's primary duty was to protect rights came from the theory of social compact--a theory which held that men are naturally endowed with rights prior to the formation of government and therefore consent to create government only insofar as it will protect their natural rights. The Founders' system of government, Goodnow acknowledged, "was permeated by the theories of social compact and natural right." He condemned these theories as "worse than useless," since they "retard development"[40]--in other words, their focus on individual liberty prevents the expansion of government. The separation-of-powers limits on government, Goodnow realized, came from the Founding-era concern for individual liberty: "It was the fear of political tyranny through which liberty might be lost which led to the adoption of the theories of checks and balances and of the separation of powers."[41]
Goodnow's critique of the Founders' political theory came from the perspective of historical contingency. Their understanding of rights and the role of government, he argued, was based upon pure "speculation," and "had no historical justification."[42] Here Goodnow employed the same critique as his fellow Hegelian Wilson, who had written in 1889 that the idea of social compact had "no historical foundation."[43] Instead of an understanding of rights grounded in nature, where the individual possesses them prior to the formation of government, Goodnow urged an understanding of rights that are granted by government itself. He remarked favorably upon European trends in understanding rights as contingent upon government:
The rights which [an individual] possesses are, it is believed, conferred upon him, not by his Creator, but rather by the society to which he belongs. What they are is to be determined by the legislative authority in view of the needs of that society. Social expediency, rather than natural right, is thus to determine the sphere of individual freedom of action.[44]
Goodnow found it necessary to critique the theory of natural rights because he knew it was the foundation for the requirement of government based upon consent and the rule of law. The principle of government by the consent of the governed was a problem for Goodnow and those who shared his vision of administrative power. Goodnow's vision required significant deference to expertise. The empowering of administrators, as he saw it, was justified not because the administrators had the consent of the people, but because they were experts in their fields.
This is why Goodnow wanted to improve administration not by making it more accountable to pre-existing rules made by the consent of the governed, but by making it less so. He observed and conceded that the doctrines of "sovereignty of the people and of popular participation in the operations of government" were an integral part of American political culture, and he therefore acknowledged that this aspect of the culture would be a difficult hurdle for his vision of administration to overcome. "Our governmental organization developed," he explained, "at a time when expert service could not be obtained, when the expert as we now understand him did not exist."[45]
Bureaucratic Rule over Politics
Since administrative experts were now available, Goodnow urged that they be employed and empowered with significant discretion to manage the new tasks that Progressives had in mind for the national government. He was well aware that insulating administration from the control of politics and law ran up against the traditional, constitutional role for administration, where administrators are subservient to the chief executive and their duty is confined to carrying out established laws. He explained that his conception of administration was novel, considering as it did the sphere of administration to lie outside the sphere of constitutional law; indeed, this new conception is exactly what Wilson had given Goodnow credit for in 1894. Emphasizing the distinction between the constitutional and administrative spheres, Goodnow remarked that the student of government "is too apt to confine himself to constitutional questions, perhaps not considering at all the administrative system."[46]
It is for this reason of considering administration as an object of study outside of the Constitution that Goodnow's landmark book on administrative law--Comparative Administrative Law--relies almost entirely upon an account of foreign administrative systems.[47] He knew, as Wilson did, that such a concept was a novelty in the American political tradition. Modern administrative law, therefore, would take it for granted that the political branches of government had to cede significant discretion to administrative agencies; the new body of law would be dedicated to establishing a framework for governing the extent and organization of this discretion.[48]
In making his case for freeing administration from political influence, Goodnow did not speak of a strict or rigid separation between politics and administration; indeed, he noted that the boundary between the two is difficult to define and that there would inevitably be overlap.[49] But this overlap seems to be in one direction only, in a manner that enlarges the orbit of administration; that is, Goodnow seemed to contemplate instances where administrative organs will exercise political functions but apparently did not contemplate instances of political organs engaging in administrative activity. He characterized the function of politics as "expressing" the will of the state, while the function of administration is to "execute" the will of the state; but he made clear that the overlap between politics and administration would come in the form of administrative agencies taking a share in "expressing" and well as "executing" state will:
No political organization, based on the general theory of a differentiation of governmental functions, has ever been established which assigns the functions of expressing the will of the state exclusively to any one of the organs for which it makes provision. Thus, the organ of government whose main function is the execution of the will of the state is often, and indeed usually, intrusted with the expression of that will in its details. These details, however, when expressed, must conform with the general principles laid down by the organ whose main duty is that of expression. That is, the authority called executive has, in almost all cases, considerable ordinance or legislative power.[50]
The notion that Goodnow might see administration as subordinate to politics--as confined only to executing previously expressed will or law[51]--is hereby called into question. Goodnow's statement essentially laid the foundation for the bureaucracy to act without the prior enactment of law by the legislature. He elaborated: "As a result, either of the provisions of the constitution or of the delegation of the power by the legislature, the chief executive or subordinate executive authorities may, through the issue of ordinances, express the will of the state as to details where it is inconvenient for the legislature to act."[52]
The key to trusting administrators with the kind of discretion that Goodnow envisioned was his profound faith in the expertness and objectivity of the administrative class, just as it had been for Wilson. Administrators could be freed from political control because they were "neutral." Their salary and tenure would take care of any self-interested inclinations that might corrupt their decision making, liberating them to focus solely on truth and the good of the public as a whole. As Goodnow explained:
[S]uch a force should be free from the influence of politics because of the fact that their mission is the exercise of foresight and discretion, the pursuit of truth, the gathering of information, the maintenance of a strictly impartial attitude toward the individuals with whom they have dealings, and the provision of the most efficient possible administrative organization.[53]
A natural objection here would be that freeing administrators from political control is a recipe for corruption--that it is precisely through the electoral connection of public officials that we "make their interest coincide with their duty," as Hamilton puts it in The Federalist.[54] But for Goodnow, it is just this connection to electoral politics that would make administrators corrupt, while the absence of accountability to the electorate somehow makes them pure. Politics, Goodnow explained, is "polluted" and full of "bias," whereas administration is all about the "truth."[55] Goodnow's confidence in the objectivity of administrators, like Wilson's, is a sign of his Hegelianism, and it shows that he accepted Hegel's premise that bureaucrats could be freed of their particularity and devote themselves wholly to the objective good of the state.[56]
Conclusion: The Legacy of Progressivism
The main tenets of the Progressive vision for administration, articulated by the likes of Wilson and Goodnow, have come to have a powerful influence in the administrative state by which America is governed today.[57] For a thorough understanding of this phenomenon, one would, of course, have to examine the translation of Progressive ideas into the actual reshaping of American government that took place during the New Deal of Franklin Roosevelt,[58] but even a brief glance at the primary features of the modern state shows important continuities between it and the main principles of Progressivism. In particular, the constitutional separation-of-powers structure that was designed to preserve individual rights and uphold the rule of law has been considerably weakened, and we can see the effects of Progressivism on the three key tenets of the separation of powers that were described at the outset of this essay.
As legal scholar Gary Lawson explains in a seminal essay on the topic, the Supreme Court ceased applying the non-delegation principle after 1935 and allowed to stand a whole body of statutes that enact the new vision of administrative power.[59] These statutes, to varying degrees, lay out Congress's broad policy aims in vague and undefined terms and delegate to administrative agencies the task of coming up with specific rules and regulations to give them real meaning. The executive agencies, in other words, are no longer confined to carrying out specific rules enacted by Congress, but are often left to themselves to determine the rules before seeing to their enforcement.
Lawson cites, for example, securities legislation giving the SEC the power to proscribe the use of "any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." The agency, on the basis of its expertise, and not Congress, on the basis of its electoral connection, is charged with determining the specific policy that best serves the "public interest." In another example, legislation on broadcast licenses directs that the Federal Communications Commission (FCC) shall grant licenses "if public convenience, interest, or necessity will be served thereby."[60]
More recently, the Supreme Court under William Rehnquist made clear that there would be no revisiting the abandonment of non-delegation. In the case of Mistretta v. United States, the Court upheld the statute that delegated to the U.S. Sentencing Commission the power to set sentences (or sentencing guidelines) for most federal crimes. If any case were going to constitute grounds for non-delegation review, it would have been this one. Congress created the Sentencing Commission as, essentially, a temporary legislature with no purpose other than to establish criminal penalties and then to go out of existence.[61] But Mistretta simply served as confirmation that the federal courts were not going to bring the legitimacy of the administrative state into question by resurrecting the separation of powers.
The second tenet of separation of powers--the prohibition on combining functions--has fared no better in modern constitutional and administrative law. As Lawson explains, "the destruction of this principle of separation of powers is perhaps the crowning jewel of the modern administrative revolution. Administrative agencies routinely combine all three governmental functions in the same body, and even in the same people within that body." His example here is the Federal Trade Commission (FTC):
The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission's rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission's findings warrant an enforcement action, the Commission issues a complaint. The Commission's complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. The Commission adjudication can either take place before the full Commission or before a semi-autonomous administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission.[62]
The FTC is a particularly apt example, since it was the "quasi legislative" and "quasi judicial" character of the FTC that was upheld in 1935, in the landmark Supreme Court case of Humphrey's Executor v. United States--the first time that the Court so clearly acknowledged that agencies technically within the executive branch could exercise substantially non-executive functions.[63]
Progressive liberalism has also succeeded, at least partly, in defeating the third tenet of the separation-of-powers framework by weakening the political accountability of administrators and shielding a large subset of agencies from most political controls. While the independence of "independent regulatory commissions" and other "neutral" agencies is not as clearly established as delegation and combination of functions, the federal courts have certainly recognized the power of Congress to create agencies that are presumably part of the executive (where else, constitutionally, could they be?) but are nonetheless shielded from direct presidential control. Normally, this shielding is accomplished by limiting the President's freedom to remove agency personnel. In Humphrey's Executor, for example, the Supreme Court overturned the President's removal of an FTC commissioner by reasoning that the Commission was more legislative and judicial than it was executive.[64] More recently, it upheld the Independent Counsel provisions of the Ethics in Government Act (the provisions were subsequently repealed), concluding that even an office as obviously executive in nature as a prosecutor could be shielded from presidential control.[65]
These rulings reflect the acceptance of a key tenet of the modern administrative state: that many areas of administration are based upon expertise and neutral principles and must therefore be freed from the influence of politics. That such a notion has become ingrained in the American political mindset was evidenced by the near universal outrage expressed over the Supreme Court's 2000 decision in FDA v. Brown and Williamson. In this surprising exception to its standard deference for agencies, the Court ruled that before the Food and Drug Administration (FDA) could promulgate and enforce regulations on tobacco, Congress first had to pass a law actually giving the agency the authority to do so.[66] The decision, which simply upheld the rule of law, was denounced because it would subject tobacco regulation to the control of the people's elected representatives in Congress, where tobacco-state legislators might derail it, instead of giving FDA scientists carte blanche to regulate in accord with their own expertise.
The acquiescence in the realms of law, politics, and culture to the concepts of delegation, combination of functions, and insulating administration from political control is explained by what legal scholars call the victory of "functionalism" over "formalism," or what political theorists might loosely translate as "pragmatism" over "originalism." Simply defined, a functionalist or pragmatic approach begins not with the forms of the Constitution, but with the necessities of the current age, thereby freeing government from the restraints of the Constitution so that the exigencies of today can be met. As one scholar argues, "Respect for 'framers' intent' is only workable in the context of the actual present, and may require some selectivity in just what it is we choose to respect."[67] This sentiment, elevating expedience and efficiency over the separation of powers, was expressed very clearly by Justice Blackmun in his opinion for the Court in Mistretta: "Our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."[68]
The rise of the administrative state that is such an integral feature of modern liberalism thus required the defeat of the separation of powers as a governing principle, at least as it was originally understood, and its replacement by a system that allows delegations of power, combination of functions, and the insulation of administration from the full measure of political and legal control.
Ronald J. Pestritto, Ph.D., is Associate Professor of Political Science at Hillsdale College, where he holds the Charles and Lucia Shipley Chair in the American Constitution. He is also a Senior Fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy and author ofWoodrow Wilson and the Roots of Modern Liberalism.Research conducted during the author's time as a Visiting Scholar at Bowling Green's Social Philosophy and Policy Center has been invaluable to his work on Progressivism and the administrative state, and he gratefully acknowledges the Center's support.
Whew!
Kinda long huh? Thats the Heritage Foundation for you. Maybe I shouldn’t have posted on a Saturday night. Well worth the read though.
Another one, long, but eminently illuminating as this posted article is..here is one by Fonte of the Hudson Institute..sorry I do not have the link..Transnationalism anticipates administrative government as the North American Union would transform the US into an administrative entity. A rare book, fiction, written by Col. Ed. Mandell House titled ‘Philip Dru:Administrator’ published in 1906 was the brainchild of the League of Nations, a World Bank, a world court and a world government..Wilson was given the book by COl. House, his advisor, to read over a weekend and the rest is history..Try to find and read it...do a search for Col. Edward Mandell House. Here is the article by Forte:
The Enablers of Transnational Progressivism
Is the Nation-State Threatened?
October 4, 2006
by John Fonte
Paper delivered for US-UK New Criterion-Social Affairs Unit sponsored conference in Winchester, England September 28-29, 2006
During the last several years I have developed a theory of “transnational progressivism.” I have argued that as an ideology, social movement, and alternative counter-regime, “transnational progressivism,” represents a long-term existential threat to the liberal democratic nation-state.
Let me first provide a very brief and simple overview of transnational progressivism and then proceed with an expanded taxonomy of the entire global governance project. After that, I will explore the (rather inadequate) response from the democratic center-right to the global governance movement and suggest what an effective counter-movement might look like.
Political Philosopher, James Ceaser describes liberal democracy as a “compound” regime with two distinct constituent parts that developed during different historical periods: liberalism and democracy. Traditional liberalism means support for limited government, individual rights, private property, freedom of speech and association. Democracy denotes government by “consent of the governed” or some form of majority rule. A modern liberal democratic nation-state combines these two elements: a distinct “people” govern themselves, but popular government is limited by individual rights.
I have argued that transnational progressivism challenges both liberalism and democracy and offers an alternative world-view.
Post-Liberal. Instead of individual rights and equality, transnational progressives advocate ethnic, racial, and gender group rights. In place of equality for individuals, proportional equality for ascribed groups (or “diversity”) is favored. Free speech is to be circumscribed if it “offends” designated victim groups. This perspective could be called “post-liberal.”
Post-Democratic. Transnational progressives argue that the nation-state and national sovereignty are ill suited to deal with the global problems of the 21st century. New political forms are required beyond the control of national governments. Global governance would consist of networks of overlapping transnational institutions, courts, agreements, treaties, laws, regulations, and norms. Evolving definitions of international law and human rights would provide the philosophical basis for such a regime. Because it is not clear how this new global system would deal with the core democratic principles of consent of the governed, accountability, representation, popular majorities, and the like, this perspective could be called “post-democratic.”
Expanded Taxonomy
In my expanded taxonomy transnational progressivism is one part of an overall global governance project that consists of four forces. Besides the transnational progressives, there are transnational pragmatists, regime supersessionists, and extreme libertarians (who sometimes unwittingly advance political transnationalism).
Transnational Pragmatists (The Enablers of Global Governance)
In addition to the ideological adherents of transnational progressivism, there is an influential transnational social base at the core of the global governance movement consisting of corporative executives, international lawyers, judges, academics, officials of international organizations and the like. Many are not necessarily on the political left, or in agreement with the ideology of transnational progressivism; nevertheless, they either genuinely favor, or see themselves as benefiting, from stronger supra-national and weaker national authorities. In this sense, efficiency (or immediate practical gain) trumps democratic principles.
This transnational social class is well described by Samuel Huntington. In Who Are We, he decries the “de-nationalization of elites” (of the right, left, and center, pragmatists as well as progressives) who “increasingly define themselves, their interests, and their identities in terms of transnational and global institutions, networks, and causes.” Today, elites that compose the leadership in many global corporations are at the center of transnational pragmatism. Even a cursory examination of the politics of leading corporations reveals a willingness at times to restrict both of the elements of liberal democracy discussed above (traditional liberalism and consent-based democracy).
Since the late 1960s, a long-term goal of the progressive left in the United States has been the replacement of the jurisprudence of individual rights and individual merit with a new paradigm of ethnic, racial, and gender group rights and group representation. In the Supreme Court case Grutter v. Michigan (2003) the progressive left achieved a major breakthrough. This left-wing victory was won, in large part, because American business accepted the ethnic group-based “diversity” rationale for employment and rejected the traditional core arguments for equality of opportunity and individual merit that had informed the landmark Civil Rights bill of 1964.
Sixty-Five leading American corporations (including Coca-Cola, Boeing, Chevron, Dow Chemical, Intel, Microsoft, Nike, GE, Pricewaterhouse, Procter and Gamble, Xerox, etc.) filed a friend of the court (amicus) brief supporting the University of Michigan’s race-based admissions policies. At the heart of the brief was the “post-liberal” and quasi-corporatist argument that the admission to the institutions of higher education of a “critical mass” of people from specific racial, ethnic, and gender groups trumped individual merit and opportunity.
The corporate amicus brief essentially repeated the standard multicultural arguments of the past 30-40 years. The brief even parroted the slogans of the academic left by referring to the United States as “this nation of many peoples, ” a construct that performs the function of an ideological “black mass,” mocking the Preamble of the American Constitution’s, “We the People of the United States.”
The brief was crucial in Grutter because it was citied by Justice Sandra Day O’Connor in her majority argument in favor of Michigan Law School’s diversity program. In effect non-leftists, so-called pragmatists, including American business and Justice O’Connor were the “enablers” of this important victory for the progressive cause enshrining into law the essential concepts of the multicultural-diversity paradigm.
I predict that this scenario will be repeated again and again at the global level as transnational pragmatism comes to serve as the handmaiden of transnational progressivism. Transnational pragmatists particularly global corporate elites (with acquiescence of some national judges) will (for their own non-ideological reasons) become the enablers of supra-national institutions and a global governance project that is mostly transnational progressive in spirit. Indeed this has already occurred with the evolution of the European Court of Justice (ECJ).
Alec Sweet Stone and Thomas L Brunell, two leading authorities on European Union (EU) transnational governance explain how this happened. In 1958 the member-states of the European Community (EC) “founded an international organization, not a transnational rule of law polity.” However, over time the nature the regime was transformed. This “process” (i.e., the transformation from international organization to transnational polity) “has been driven almost entirely by the relationship among private litigants, [first corporations, later social activists] national judges, and the ECJ.” Despite “the declared opposition of member states,” the European Court of Justice asserted a supremacy doctrine according to which EC law was given primacy in any conflict between EC (now EU) law and national law. National judges were empowered by the ECJ to implement the EC rules, which they readily did.
Sweet Stone and Brunell sum up the process thus: “Individuals ask national judges to void national rules or practices in favor of EC legal rules within a particular domain of activity. Transnational dispute resolution [that is] the interaction among litigants, national courts, and the ECJ recasts the law…” They conclude by stating: “ Finally, it can not be stressed enough that the EC legal system was constructed without the explicit consent of the member states.”
In other words, business leaders and judges acted as post-nationals and post-democrats, preferring to transfer decision-making authority from their own democratically elected parliaments and nationally accountable judicial systems to an unaccountable supranational polity.
Jeremy Rabkin in The Case for Sovereignty worries that the future trajectory of the Appellate Body (AB) of the World Trade Organization (WTO) could repeat the history of the European Court of Justice (ECJ). Like the ECJ, the WTO’s more “judicialized dispute settlement process” (as opposed to a political process of nation-state trade negotiations) “has given the WTO more direct connection with business constituencies.” Again, like the ECJ the interaction of these new constituencies (corporations, social activists, NGOs) with WTO judges could develop a body of case law, a transnational legal space, outside the reach of the democratic nation-state and, thus, beyond the democratic accountability inherent in the concept of “government by consent of the governed.”
Regime Supersessionists (Harnessing and Transforming Gulliver)
Applying the controversial supersessionist concept from religion to political systems, global governance replaces (supersedes) the democratic nation-state as a higher form of political regime, a higher stage in the evolution of human politics. Regime supersessionists would say, the nation state (including the American political order, Britain’s parliamentary democracy) were progressive during their heyday, but are no longer adequate to address global problems; therefore, a new global political architecture (including new forms of sovereignty) is required.
For the regime supersessionists the nation-state continues to exist and (under the principle of subsidiarity) performs many useful functions, however, it is relegated to a subordinate status in a normative and instrumental hierarchy, inferior to “global governance.” In this view, like the superseded religion, the nation-state would continue to exist as something that is incomplete and inferior, just as state or provincial governments continue to exist in federal systems.
Among major supersessionist thinkers we should list Anne Marie Slaughter, Dean of the Woodrow Wilson School at Princeton. In an attempt to answer critics who object to global governance by what the UN leadership describes as “global civil society” (or unelected NGOs, officials of international organizations, global corporate elites, private actors, etc.), in her A New Global Order, Slaughter proposed a world political system based on trans-governmental networks. She insists that “Global governance is not world government.” Slaughter argues the world of “unitary states” as described by James Madison in Federalist 42 has been replaced by the new world of “disaggregated states”. She writes:
“In US Constitutional law, for instance the Supreme Court and the President have often had recourse to James Madison’s famous pronouncement in the Federalist papers: ‘If we are to be one nation in any respect, it clearly ought to be in respect to other nations.’ ”
Nevertheless, Slaughter declares we should no longer be “handicapped by the conceptual lens of the unitary state,” as Madison and most international relations scholarship have traditional described it. Instead, Slaughter advocates the concept of the “disaggregated” state both horizontally (e.g., American judges, regulators, and legislators coordinating joint policies with their foreign counterparts) and vertically (nations ceding sovereignty to supra-national institutions in cases requiring global solutions to global problems). An example given of the latter is the International Criminal Court (ICC).
Slaughter argues that global government networks “can perform many of the functions of a world government?legislation, administration, and adjudication?without the form.” Therefore, a “world order out of horizontal and vertical networks could create a genuine global rule of law, without centralized global institutions, that could encourage, support, and constrain government officials of every type in every nation.”
The anticipated supersession of the democratic nation-state by transnationalism that Anne Marie Slaughter conveys indirectly with her verbal somersaults about “disaggregated states” and “horizontal-vertical networks,” is put more bluntly by leading international law professor Peter Spiro, who writes as follows: “features of globalization may result in at least a partial subordination of the Constitution to international norms;” further, “federal constitutional law may come in the future to resemble the role of state constitutional law today—of significance, yes, but clearly of secondary importance in the broader norms system.”
What to do about Gulliver?
In an article in the National Interest in 2004, I wrote that certain prominent Americans (e.g., Strobe Talbott) advocate that America lead the international movement toward new political forms and become the engine of global governance. In effect, the (national) caterpillar paves the way for the (global) butterfly. Upon reflection, however, this metaphor is not quite apt, because the caterpillar morphs into the butterfly, whereas the more sophisticated supersessionists insist the nation-state will (and should) remain, but simply drop a rank in the political hierarchy. This view could be more accurately described as post-American rather than anti-American. Likewise Britain’s role in the EU could be characterized politically, in terms of the traditional parliamentary regime, as “post-British.”
Among nation-states, of course, America is the giant, Gulliver. As John O’Sullivan pointed out in the New Criterion two years ago a major concern of transnationalists of all stripes is: How do we control Gulliver? Of course, like any major political movement the adherents of global governance are not monolithic. Many transnationalists want to tie Gulliver down. In an interview with Mexican journalists in November 2002, Vincente Fox’s foreign minister, Jorge Castaneda declared:
“I like very much the metaphor of Gulliver, of ensnarling the giant.” “Tying it down with nails, with thread, with 20,000 nets that bog it down: these nets being norms, principles, resolutions, agreements, bi-lateral, regional, and international covenants.”
A different (and more subtle) strand of transnationalist prefers not so much to tie Gulliver down but to use him to serve global ends as they would define them and, to be sure, at the same time transforming Gulliver’s character. Thus, Gulliver is put in harness, becomes the horse that pulls the global governance cart. The American nation doesn’t disappear it helps establish a new global order in which it voluntarily relinquishes large sections of its sovereignty, its constitutional order, and ultimately its self-government.
For all transnationalists, a fully sovereign, independent, unbridled United States is the major obstacle to global governance. For one thing a vigorous American nation-state by its existence and its example inspire a spirit of independence in other currently unfashionable democratic nation-states such as Israel, Britain, Australia, and Japan; and in other nations as well, including India and the newly independent nations of Central and Eastern Europe. Certainly, if the bridle can be put on the American nation-state other democratic nation-states could be brought to heal and lose a good deal of their independence and self-government.
Extreme Libertarians
Libertarians, of course, oppose the essentially statist-social democratic ideology of transnational progressivism. Nevertheless, some libertarians have contributed to the weakening of the moral argument for sovereign self-government through their constant denigration of the nation-state and thus of democratic politics. The late Citicorp CEO, Walter Wriston’s Twilight of Sovereignty was a radical libertarian manifesto that delighted in the rise of transnational action beyond the reach of democratic self-government. The late Robert Bartley, long time editor of the Wall Street Journal, is reputed to have told journalist Peter Brimelow, “the nation-state is finished.” And even at meetings of the venerable Mt. Pelerin Society strong arguments were made at one meeting supporting a “world constitution” from a libertarian perspective.
Hostility to the “state” in general (even the limited democratic state) has blurred an understanding of the core principles of liberal democracy. For example, in April 2002 the Cato Institute’s Dan Griswold writing in National Review Online objected to new U.S. Border Patrol initiatives against illegal immigration smuggling. He described the border security measures as follows: “It’s just another example of government trying to stop people from doing something that is natural to better their conditions.”
Mr. Griswold’s remarks display confusion about the meaning of self-government. The “people” he refers to are non-American illegal immigrants (in this case many from the Muslim nations of the Middle East) who hire smugglers to enter the United States against the wishes of the overwhelming majority of the American people. The “government” consists of border patrol agents (many of them Americans of Mexican descent) who are clearly carrying out what conservative political thinker Willmoore Kendall in the early days of National Review would have called the “deliberative sense of the American people.”
In a similar vein, a Wall Street Journal editorial on July 10, 2006 trumpets the so-called “rights” of illegal immigrants to “contract” with American employers in violation of American law:
“Our own view is that a philosophy of ‘free markets and free people’ includes flexible labor markets. At a fundamental level, this is a matter of freedom and human dignity. These migrants are freely contracting their labor, which is a basic human right.”
This is a rather clear case of a core conflict that should be clarified within the democratic center-right?a conflict that pits the democratic nation-state (the right of a self-governing people to make their own laws concerning immigration, border security, and labor relations) against an alleged international human right to voluntarily enter into employment contracts. Ironically, the arguments of the Wall Street Journal editorial parallel those articulated by many on the left who drafted a recent UNESCO proposal on international migration, which essentially endorses a “human right” of immigration with or without the consent of the people in the host nation.
Response from the Democratic Center-Right
There is a group of thinkers on the center-right (many of whom are participating in this conference) who recognize this challenge for what it is—a threat to liberal democracy—and who are conceptualizing the problem; which is, after all, step one. In addition, some outside of the Anglosphere including Adam Mischnik, Vaclav Klaus, and, recently, Pierre Manent, should be noted. There are also political leaders in the US and Europe who are concerned about these threats to national democratic sovereignty. In America they would include Senators Jon Kyl (AZ) and Jeff Sessions (AL), Congressmen Tom Finney (FL), Robert Goodlatte (VA), and former Speaker Newt Gingrich among others.
For the most part, however, the post-democratic nature of the global governance project has been mischaracterized, minimized, ignored, or not taken seriously. The overwhelming focus on democracy promotion in non-democratic parts of the world has led some in the Bush Administration’s foreign policy apparatus and many serious democracy advocates to wear blinders and ignore the tension between national democratic accountability and transnational institutions. Thus, the Administration’s funding for democracy promotion throughout the world often goes to the same NGOs who both promote transnationalism over nation-state democracy, and do not fully support the core premises of the war on terror.
On the other hand, typical of the viewpoint of serious democracy advocates, who do support the war on terror is a 2004 National Interest article by Adrian Karatnycky of Freedom House. In the article Karatnycky boldly declared, “the inexorable force of democratic hegemony is reshaping the world.” Like the early Fukuyama (circa 1989), Karatnycky insists, “no array of closed societies or illiberal ideologies can seriously challenge the predominance of democratic states and liberal ideas.” He sees a “genuinely new system of power rooted in liberal principles” emerging globally.
As examples of this expansion of liberal democratic power and ideas, Karatnyck notes that the EU “successfully pressed” East European states to “eliminate the death penalty” as a “precondition of entry” and “imposed diplomatic sanctions on Austria” to exclude Jorg Haider “from a government leadership position.” Moreover, he insists, “Europe’s championing of the imperfect International Criminal Court” is “yet another instrument likely to spur the projection of democratic hegemony.”
But one could better argue that these examples of EU bullying reveals a post-democratic rather than democratic impulse. A large majority of Poles and Hungarians preferred to retain the death penalty sanction upon joining the EU and would prefer to restore it today. Whether the ultimate penalty in a national criminal justice system is a death penalty or a some fixed prison term is a policy decision that in a fully functioning liberal democracy, self-governing people make for themselves. In effect, the EU has not expanded democracy as Karatnycky suggests, but rather restricted it.
Likewise, with the unsavory Herr Haider. Again the EU restricted the democratic process by attempting to dictate Austrian cabinet choices. Although Haider was a nasty demagogue, he was not a Nazi on verge of seizing power and establishing a totalitarian dictatorship in the year 2000. To permit Austrian democracy to work out its own kinks in the early 21st century, is not analogous to playing the role of German President Hindenberg in 1933. Moreover, the EU’s interference over Haider (and to lesser extent over Fini in Italy) reveals a blatant left-wing bias, since the Eurocrats have shown no interest in preventing communist politicians (former, neo, quasi, or crypto) from serving in leadership positions in democratic European governments.
Karatnycky tells us, that the “ideological hegemony of democracy” in the Antonio Gramsci sense of that term, “is disseminated by a globally linked intelligentsia, by a global media,” by NGOs, and others. But it is precisely the ideological hegemony of traditional nation-state democracy that is “contested” by a good chunk of a “globally linked intelligentsia,” either Western in origin, or Western-trained.
These arguments within the West are not simply about the Iraq war, the war on terror, or between American Martians and European Venusians as Robert Kagan would have us believe. Nor are these arguments only over the “source of democratic legitimacy” (nation-state or international community) as Francis Fukuyama insists, because Fukuyama tells us, “the disagreement is not over the principles of liberal democracy.” On the contrary, the argument is precisely over the “principles of liberal democracy.” Moreover, it is an argument, not between the US and Europe but within the US and within the other nations of the West.
What Should the Center-Right do?
A center-right counter-movement to the forces promoting transnational governance must begin by recognizing the serious world historical nature of the threat and the full extent of the conflict. The conflict is above all about the “regime,” in the Aristotelian sense of that term: Will the liberal democratic nation-state survive: or will it be superseded by a different type of polity?
The global battleground between nation-state democrats and transnational post-democrats is a classic Gramscian struggle for ideological hegemony. It connects a series of seeming unrelated issues. In Who Are We, Samuel Huntington writes that the ideological conflict over transnationalism, “racial preferences, bilingualism, multiculturalism, immigration, assimilation, national history standards, English as the official language, Eurocentrism,” and the like, are “all battles in a single war over the nature of American national identity.”
In Liberal Democracy and Political Science, James Ceaser makes the crucial distinction between “policy questions” (to increase or decrease funding spent on student loans) and “regime questions” (actions that could alter the nature of a political regime.”) Huntington is suggesting that these separate policy issues of transnationalism, civic education, ethnic preferences, immigration, assimilation, language, and the like, when combined, constitute a “regime question.” Indeed, most Western countries (including Israel) have been experiencing similar culture wars over the saliency of national identity and the nation-state that are, at the deepest level, “regime,” rather than simply separate policy questions.
Of course, the Western ideological civil war that I have been describing is complicated by the fact that it is being waged by elements of the Western Progressive Left against the democratic nation-state at a time that the Western Center-Right is focused almost exclusively on the War on Radical Islamic Terror. If the latter conflict represents a “hard,” direct, and immediate threat, the former represents a long-term threat that while “soft,” (non-violent, if coercive) is, nevertheless, “existential” in the sense that it is a serious threat to the existence and perpetuation of liberal democracy. (In the same vein, Tocqueville’s “soft despotism” remains a serious threat to liberty). Finally, it is clear that the two conflicts (one “hard” against anti-democratic Islamists, the other “soft” against transnational post-democrats) intersect on crucial questions concerning interpretations of international law and human rights.
Conclusion
At the end of the day, much of the struggle between nation-state democracy and political transnationalism will be fought out at the margins where pragmatic considerations will be crucial. Therefore, I will end this paper with a discussion of the concrete example of the US decision to accept the role of the International Criminal Court (ICC) in any future war crimes trials in Darfur.
Before the decision was made, Jack Goldsmith (a former Bush Administration official and a leading intellectual critic of global governance) wrote an influential article in the Washington Post urging the United States to reverse course and support a UN Security Council resolution to refer potential Darfur war crimes trials to the ICC. Goldsmith argued on narrow, interest-based, pragmatic grounds. He said a US reversal would: give the US “leverage” in developing a “compromise” with European nations on the court; “signal” US support “for the UN and international human rights when Washington is perceived by some as opposing both;” and outflank French delaying tactics for action in the Sudan. Moreover, he said it was too late to worry about “legitimizing the ICC” because the court was already up and running. Goldsmith had it exactly backwards. The United States should not have supported the ICC in Darfur on the pragmatic grounds of Realpolitik, but opposed it on the principled grounds of “democratic sovereignty. That is to say, on the basis of a “Moralpolitik” consistent with the Administration’s position of strengthening democracy throughout the world. An argument along the following lines should have been made:
The operating principles of the International Criminal Court are in direct contradiction to the values of democratic self-government, because under ICC rules the soldiers of a democracy whose nation did not ratify the ICC treaty could nevertheless be tried by ICC judges against the will of that democratic state. For example, India and the Czech Republic are democracies that have not ratified the ICC. If Indian or Czech troops serving in peace-keeping missions in the Congo (which did ratify the ICC) are accused of human rights violations they could be tried before this court. Since the Congo is a party to the treaty it would not be necessary to have Security Council approval.
Supporters of the ICC claim there is a “safeguard” that the democracy in question (or any nation) has the first option of investigating the alleged crimes of their own soldiers before the ICC would act. But whether their judicial procedures are deemed valid are determined not by the democratic nation-states but by the ICC (whose membership includes eight undemocratic authoritarian regimes.)
To date, the US has argued against the ICC primarily on the grounds that it would subject American soldiers to prosecution outside our constitutional system. This is true and the US should continue to make this point. However, the Administration should also argue that the entire ICC process itself is an affront to democratic self-government everywhere. Besides India and Czech Republic, other democracies have refused to ratify the ICC including Israel, Japan, Taiwan, and Chile. These democracies do not have veto power in the Security Council and might not be able to protect their troops in particular circumstances.
The US should forthrightly oppose a role for the ICC in Darfur (or anywhere) on the universal democratic grounds that the institution is inherently undemocratic in principle. Other options are available in Darfur. As David Rivkin and Lee Casey have suggested, the perpetuators of genocide if they are caught could be tried by an African-based court, the International Criminal Tribunal for Rwanda (ICTR) that is already in existence.
The types of argument listed above did not prevail within Bush Administration circles, although there were clearly internal debates about whether to accept the ICC in Darfur. Unfortunately those who counseled expediency won the day.
The US acquiescence to the ICC in Darfur is a prime example of how the global governance project advances at the margins of world politics. Not surprisingly, transnational pragmatism works hand in glove with transnational progressivism. The International Criminal Court, which is, at its core, an ideological project of the Amnesty International-Human Rights Watch Western Legal Left (whose, ultimate, if unstated goal, is the supersession of the American Constitution) is legitimized for expedient, “pragmatic” reasons by a center-right American administration. As always when core principle is surrendered for expediency, there will be even greater future costs to pay in terms of both American interests and the status of liberal democracy throughout the world.
John Fonte is a senior fellow and director of Hudson’s Center for American Common Culture.
COmments on Col. Edward Mandell House..son of a Confederate Texas general, he became a governormaker in Texas after the Civil War, and later moved to Washington, where he became a President maker in league with the ‘money trust’, the forerunners of the Fed Reserve. He advised T Roosevelt, and, had his fondest dreams inaugurated by Wilson (whose nomination and election he had a good deal to do with) with the League of Nations which the Senate had the good judgement to refuse. House advised FDR and lived until 1946, seeing the first establishment recognition of the UN with FDRs announcement in 1943 regarding the ‘United Nations allies’, two years before the UN was chartered. House is a major figure of the 20th century and has been buried...he should be resurrected as a focussed study.
It fits. Instead of a federation of nations that are themselves forms of represenatative government, we have elites that wish to impose administative/progressive government at home and worldwide at the same time.
that’s a good one, too.
corporations often make end runs around the nation-state
which aid the progessive movement.
>And because of the complexities involved with regulating a modern economy, it would be much more efficient for a single agency, with its expertise, to be made responsible within its area of competence for setting specific policies, investigating violations of those policies, and adjudicating disputes.
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wrong.
that’s exactly what caused the soviet union’s demise.
capitalist markets defy the rule-making of administrators.
also, as mikhail gorbachev admitted, the soviet failed to take
into account human imagination and abiliites.
Private banks (there are 280,000 of them in the Carribean alone, 2/3rds owned by Americans) and private hedge funds even now developing their own credit systems, stand to ‘inherit’ for a song, failed central banking systems when they have repossessed all they can repossess from the rapidly enlarging credit crisis with several years to go. Just as the ‘money trust’ preceeding the Fed Reserve system morphed into the Fed REserve system, so the worlds central banks will morph into the new private system being readied to absorb it. The ‘money trust’ became so hated that the public demanded a solution and the Fed Reserve was offered. THe Fed Reserve is to become hated by the world in the near future also..a new system, not fiat, not debt based will be demanded..it is being readied. Descendants of the ‘money trust’ and their European dynasties will still be the principles of the new transnational system with administrative territories. Interestingly, the postgraduate students training in parliamentary govt. for the new North American Union were in Mexicos legislature all last year, and have been in traing for four years. Two PRIVATE Swiss Banks in the last couple of weeks purchased for cash real equities..the sales and pruchases will increase over the next couple of years as the new transnational progressive banking system begins to take shape..new currencies are being readied based on probably gold and silver. Amero is still a rumor. So was the UN in 1943.
A great spoiler of all the speculation of where things are headed are the collective divisions among those who desire to achieve grand schemes on a transnational level. The scheme is half-baked, and many of the parties are hostile to one another, and of limited ability to accomplish something good. The chances of war upsetting the course of history are advancing again on a potentially grand scale no one wishes to contemplate who is sane. The political conflict between our two parties, drastically heightened since 2000, is representative of the conflict between transnationalists as the parties are transnationalists themselves..with only a few nation-state luminaries such as D. Hunter opposing them.
China and Russia and the Islamists have their own ideas of transnationalism. We may all fight it out. We are now stockpiling huge aircraft fuel supplies necessary for Iranian conflict..all bets are off where further war might lead...no one ever knows what big wars will bring except major destruction. Transnationalists have no idea what they are spawning.
The ultimate spoiler from another Freeper..Want to make GOD laugh? Tell him your plans. I doubt transnationalists desire to be that open.
You might need to have the doctor write you a new prescription for your meds...
It's not a "re-branding"--it's what they have been all along. And "progressive" is just the politically correct term for "socialist".
Excellent read. Bump for later
From where did the strength of this socialistic impulse come, in America? I think out of the bloody fraternal warfare of the Civil War. No one wanted another such period of warfare.
interesting reply.
i googled it and got this, among others:
http://history.vineyard.net/pledge.htm
“Francis Bellamy (1855 - 1931), a Baptist minister, wrote the original Pledge in August 1892. He was a Christian Socialist. In his Pledge, he is expressing the ideas of his first cousin, Edward Bellamy, author of the American socialist utopian novels, Looking Backward (1888) and Equality (1897).”
This essay is suggestive of caldera-type build up of dangerous changes to law and social wisdoms since the Civil War. They are widespread, pervasive and obvious to those who look, but hidden to the common perception.
Many were with good intent, but when built on a foundation that excludes Mose's bearings and then comes to exclude G-d, Himself, why then they become destroying angels.
It used to be that Judge and Jury were MORALLY educated men. They might not have had much book learning, beyond basic reading, righting and arithmetic, but they did have hours of moral exhortation each sabbath, and regular Bible readings every day. And the culture welcomed and honored such common morality founded on Biblical principles. That type of culture in Law and Social Wisdom continued will into the late 1800's. The Civil War was war fought, imo, for the sake of Heaven on both sides. One side fought for Liberty and the other side fought for Liberty too!
When I say "Liberty" I mean not Libertine, not the libertarian liberty -- but the kind of Liberty that allows men to form the closest association with their G-d.
But that war was so painful, so bloody, so awesome in horror -- brother against brother ... that it had a massive psychological effect. Don't want to call it PTSD -- that doesn't approach the depth of it.
We see in our era that after WWI and WWII elites called "God Is Dead" (Time Magazine, April 1966). Of course that was not true, yet it was a fair call as to the feelings of many. Where was G-d? Why had He abandoned millions upon millions?
That same feeling of abandonment, of separation from the Divine, must have occurred post-Civil War. And it would have been worse -- for nearly all in the US had suffered bloody, tragic losses. Yet it could not be stated! Too strong was the religious tradition. So the feeling subliminated, transformed in the national subconscious became "Rationalism", Humanism. Dewey, Wilson -- many.
Absent (so they imagined) the protective hand of the Divine, they substituted the protective paternalism of elites, of that thing which never really exists called "The State". And paternalism with its stern but looser hand has now become maternalism with constant smothering hug that keeps us all children.
So it is today that Juries ARE childish and neutered, and Judges immature morally. Detailed and heavily woven blankets of regulations and stinking mustard pastes of "stare-decisis" case-law make for a smothering nannyism are applied to everything with not a moral decision being made, or even make-able.
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