The Public’s Law
Origins and Architecture of Progressive Democracy
BLAKE EMERSON
The Public’s Law. Blake Emerson. © Blake Emerson 2019. Published 2019 by Oxford University Press.
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© Blake Emerson 2019
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Library of Congress Cataloging-in-Publication Data
Names: Emerson, Blake, author.
Title: The public’s law : origins and architecture of progressive democracy / Blake Emerson.
Description: New York : Oxford University Press, 2019. | Based on author’s thesis (doctoral—Yale University, 2016) issued under title: Between public law and public sphere : reconstructing the American Progressive theory of the administrative state. | Includes bibliographical references and index.
Identifiers: LCCN 2018038830 | ISBN 9780190682873 ((hardback) : alk. paper)
Subjects: LCSH: Administrative law—United States—Philosophy. | Public administration—United States—Philosophy. | Progressivism (United States politics)— Influence. | Law—United States—German influences. | United States—Politics and government.
Classification: LCC KF5402 .E46 2019 | DDC 342.73/06—dc23
LC record available at https://lccn.loc.gov/2018038830
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Printed by Sheridan Books, Inc., United States of America
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For my parents, Amy and Steve
CONTENTS
Acknowledgments ix
Introduction 1
I. The Specter of Bureaucratic Domination in Modern Political Theory 4
II. Reconstructive Political Theory 11
III. The Public’s Law, Constitutionalism, and Administrative Legitimacy 12
IV. Plan of the Book 18
1. Origins of Progressivism: German Theories of the State from Hegel to Habermas 23
I. Introduction 23
II. Administration in Hegel’s Philosophy of Law 25
III. Hegel and German Administrative History 33
IV. The Survival of Hegelian Public Law in the Wake of Revolutionary Failure 37
V. From the Substantive to the Formal Rechtsstaat 42
VI. Max Weber’s Theory of Bureaucracy in Context 44
VII. The Rechtsstaat in Crisis 47
VIII. Administrative Law in the Federal Republic 54
IX. Conclusion 58
2. The Hegelian Progressives: Democratic Spirit in the New American State 61
I. Introduction 61
II. W.E.B. Du Bois’s Bureau of Freedom 66
III. Woodrow Wilson’s Democratization of the Hegelian State 72
IV. State 84
VII. Conclusion 111 John Dewey’s Communicative Constitution of the Administrative
V. Mary Follett’s Theory of Creative Administration 95
VI. Frank Goodnow’s Democratic Rechtsstaat 102
3. The Institutional Architecture of Progressive Democracy: From the New Deal to the Second Reconstruction 113
I. Introduction 113
II. Progressive Administration in the Agricultural New Deal 118
III. Progressive Administration in the Second Reconstruction 130
IV. Assessing the Administrative Legacies of the Second Reconstruction 142
V. Conclusion 146
4. The Normative Architecture of Progressive Democracy: Reconstructing the Administrative State 149
I. Introduction 149
II. Arguments from Efficiency 152
III. Arguments from Constitutional Norms 154
IV. Arguments from Republicanism 157
V. The Progressive Critique of the Market 161
VI. Public Deliberation 163
VII. The Public’s Law 165
VIII. Administrative Agencies at the Interface of Law and the Public 168
IX. Deepening Democratic Rule-Making 172
X. Judicial Technocracy in the Review of Administrative Action 176
XI. Democratic Virtues and Authoritarian Dangers of Presidential Administration 181
XII. Conclusion 184
Conclusion: Progress in Times of Peril 185
I. The Cost-Benefit State, or Market Mimesis 187
II. The Presidential State, or Weimar-on-Potomac 193
III. Outlook 203
Notes 205 Index 263
ACKNOWLEDGMENTS
The book before you grew out of my doctoral dissertation in Political Science at Yale University: “Between Public Law and Public Sphere: Reconstructing the American Progressive Theory of the Administrative State.” While the spirit of the book remains the same, I have revised the content to clarify the connections between the Hegelian Progressives and Progressive legal thought more broadly, and to better articulate the normative theory that grows out of the intellectual and institutional history I present. In the Introduction and Conclusion, I have sought to situate this project in the difficult context of the Trump presidency, which flies in the face of Progressive democracy. I hope that my effort to recover Progressive ideas and institutions will help us to rebuild a state adequate to the requirements of individual and collective freedom.
This book would not have been possible without the support and influence of American and German civil society. When I was an undergraduate at Williams College, Joe Cruz, Monique Deveaux, Georges Dreyfus, Will Dudley, Nicole Mellow, Mark Reinhardt, Mark Taylor, and Robyn Marasco helped me to pursue my early interests in Hegel, political philosophy, and American politics. When I was a research assistant at the Aspen Institute Roundtable of Community Change, Anne Kubisch, Gretchen Susi, and Keith Lawrence introduced me to the importance of problems of economic and racial inequality, and the potential for government and community agencies to address them. The States of Connecticut and Baden-Württemberg supported a year of study at Heidelberg University, during which I began writing the dissertation, and took in the spirit of Southwest German constitutionalism. While I was in Heidelberg, Armin von Bogdandy generously provided me with a position at the Max Planck Institute for International Law and Comparative Public Law, where I was able to improve my German as a translator and present my research at institute colloquia. William Forbath helped arrange a visiting scholar position at the University of Texas School of Law, which allowed me to continue
my work while living in the Lone Star State. Allen Fisher gave expert advice during my research at the Lyndon Baines Johnson Presidential Library. I received support from the Department of Government at the University of Texas at Austin to present a paper on German public law and the American Progressives at the University of Texas Graduate Conference in Public Law and from the Oscar M. Ruebhausen Fund to travel to Berlin for a conference organized by Dieter Grimm. The Max Planck Institute again provided support for me to return to Germany for a seminar on Marx and Legal Theory, organized by Benedict Vischer and Dana Schmalz, where I practiced my critique of Marx’s Critique of Hegel’s Philosophy of Right. Yale University supported my doctoral research in the Political Science Department. Peter Shane and Chris Walker hosted the Administrative Law New Scholarship Roundtable at The Ohio State University Moritz College of Law, where Jon Michaels, Nicholas Parrillo, Glen Staszewski, and others gave very helpful suggestions to revise chapter 2. The American Constitution Society hosted a Junior Scholars Public Law Workshop, where I received excellent feedback on chapter 2 from Edward Rubin and Mark Tushnet. The University of California, Los Angeles has supported the final stages of manuscript preparation.
Numerous friends, colleagues, and students have provided essential guidance and editorial help throughout the writing process. Jeremy Kessler met with me to discuss my early research on the Equal Employment Opportunity Commission, and helped me to puzzle through some of the darker crevices of administrative law doctrine. Andrew March, Steven Smith, Bryan Garsten, and Melvin Rogers provided useful feedback on my first attempts to engage with Du Bois and Hegel. Alice O’Connor, Jess Gilbert, and Spencer Wood helped me with my research on the agricultural New Deal. Professor von Bogdandy provided crucial suggestions in my study of German public law. Eldon Eisenach gave helpful comments on chapter 2. The members of Seyla Benhabib’s Doktoranden Seminar Umur Basdas, Adom Getachew, Stefan Eich, Devin Goure, Anna Jurkevics, and Erin Pineda—helped me to think through the argument in the early drafts. Members of Professor von Bogdandy’s Referentenbesprechung particularly Matthias Goldmann, Michael Ioannidis, and Dana Schmalz— provided important insights on my research on German administrative law and the concept of public authority. The American Political Development Workshop participants—especially David Lebow, Samuel DeCanio, and David Mayhew—helped me to think through my argument about the Progressives. Christian Rosser met with me in Bern to discuss our shared interest in the connections between Hegel, Goodnow, and Wilson. At my new home at the UCLA School of Law, my colleagues Beth Colgan, Kristen Eichensehr, Rebecca Stone, Richard Re, and Alex Wang have helped me to revise chapter 4. Stefan Eich, David Lebow, Travis Pantin, Laura Schaefer, Noah Rosenblum, Jason
Yonover, and Benedict Vischer read the final drafts of the dissertation carefully to provide corrections and suggestions. Judith Calvert was exceedingly patient and helpful with me as I delayed returning to law school while I finished the dissertation. Taylor Pitz provided great feedback on later drafts of the book, and Shane Farley’s proofreading and indexing helped to finalize the manuscript. Jamie Berezin responded to my cold call to Oxford University Press, helped me to develop the book proposal, and has shepherded the manuscript to publication. Brooke Smith copyedited the manuscript.
The professors I worked with in the Political Science Department at Yale and at Yale Law School have shaped this project from top to bottom. Jerry Mashaw introduced me to the study of administrative law and provided feedback on chapter 2. Bill Eskridge’s seminar on statutory interpretation helped me to develop my understanding of “the public’s law.” John Witt’s seminar on legal historiography helped me to think through my historical argument and to flesh out the broader legal theory of the Progressive Era. Dieter Grimm’s course on “Weimar Jurisprudence” provided me with crucial insights about German legal history, which helped me to compose the critique of German state theory I advance in chapter 1. Stephen Skowronek’s course on “American Political Development” introduced me to scholarship on Progressivism and the American state that was absolutely formative for the approach I have taken—to think about ideas in and through the institutions in which they are embedded. The detailed feedback he has provided on all of the chapters has forced me to take institutional constraints yet more seriously; he has combined skepticism with encouragement in a way that has vastly improved the argument. Bruce Ackerman’s We the People, which I read as an undergraduate, brought me to law school. His courses on “Constitution: Law, Philosophy, History,” the “Civil Rights Revolution,” and “The Foundations of Legal Scholarship” have defined my understanding of public law and its relationship to popular sovereignty. His unwavering support throughout this process, his formative advice, and the passion he brings to his teaching and scholarship have been an inspiration. Seyla Benhabib was the reason I chose to come to the Yale Political Science Department. Her course on “European Political Thought from Weber to Derrida” was the finest lecture I have ever attended and inspired me to pursue my interest in German political thought in the dissertation. She provided indispensable feedback, support, and careful reading of the drafts at every stage of the process. Her scholarship, combining Hegel’s appreciation of the intersubjective core of law, Habermas’s understanding of the moral substance of communication, and Arendt’s concept of political action, has thoroughly shaped the normative perspective this book advances. I am truly honored and thankful to have studied under such an esteemed and generous group of mentors.
No ethical life is complete without family. My grandparents, Beatrice and Elizabeth and Edward, encouraged my early intellectual curiosity. Though I never met Blanchard, I am named after him, and carry his American spirit in my bones. My stepfamily, Jocko, Jenni, Anneka, and Kendra, have always given me a warm home and lively conversation in Haverford to come back to. My sister and religion scholar Abby has kept my spirits up with her love, her moral sense, and her intellectual spark. My father, Steve, who introduced me to philosophy, has always been there to talk with me about my research and about my life; I wouldn’t be the scholar or the man I am if it weren’t for him; he has taught me to “love this shot,” even when the ball is underneath a tree, in a different time zone than the pin. My mother, Amy, indulged my early love for bureaucracy by ironing Ann Arbor Police Department insignia onto my blue Oxford shirts for my playground patrols. With her OED and Fowlers always handy, she has taught me the beauty of language; she has shown me how to live life with grace, independence, and liberal sentiments. My spouse, my love, Laura, has lifted me up in my moments, or months, of doubt and always been by my side even when we were far apart. In her work on death penalty clemency, she has taught me the dangers as well the virtues of executive discretion.
Berlin and Los Angeles, Summer 2018
Introduction
The modern democratic state is an administrative state. Democracy requires administration to address the social problems the people identify. Some ethical and practical conflicts cannot be ascribed simply to the wrongful acts of individuals, but rather emerge from larger patterns of interaction. We confront vast inequalities of income, wealth, and opportunity that prevent citizens from participating equally as members of the political community; monopolistic firms, asymmetries of information, and transaction costs that impede fair exchange; industrial practices that degrade our environment and threaten our survival; institutions of education, employment, policing, and housing that entrench racial hierarchies; and cultures of gender domination in the school and the workplace that harm and humiliate students and employees. Because these problems arise from complex systems of social organization, they must be addressed through a complex system of political organization, namely bureaucracy. Public power must flow through authorities that gather and analyze information, make long range plans, and handle a mass of individual cases in a consistent fashion. Administrative agencies can deploy resources, personnel, and regulatory instruments in a way calculated to achieve collectively determined goals.
The administrative state, at the same time, appears not to be democratic. When we grant power to unelected officials to make decisions, we remove government from direct public oversight. When we delegate authority from the legislature to the executive, governance may lose that predictable, transparent, and discursive quality that is thought to attend liberal lawmaking. When we treat some members of our society as passive beneficiaries who are subject to official benevolence, discipline, and manipulation, we may deprive them of their status as authors of the laws that bind them. When we supplant deeply embedded and intimate forms of social order with alienated administrative power, we may drain the wellsprings of communal association that make collective action
The Public’s Law. Blake Emerson.
possible. When we replace communicative reason, persuasive rhetoric, and good-faith argument over common ends with instrumental reasoning over the efficient application of power, we may enervate the public sphere in which democratic opinion is formed. Administration thus seems to threaten the very foundations for democracy, even as democracy requires administration.1
The apparent conflict between democratic politics and administrative organization is a tension internal to democratic order itself: between generally applicable laws and procedures sensitive to individuality; between the value of political accountability and the need to insulate decision-making from partisan opportunism; between the requisites for democratic life and the practice of democratic politics. These constitutive tensions do not render the modern democratic state untenable. They motivate its normative development. They furnish opportunities for institutional and conceptual adaptations that mediate the dialogue between public law and public opinion. By studying how law and discourse relate to one another, we can identify a general maxim to guide political progress: structure the state to empower the public sphere. Such a structure frames the public’s law the set of obligations that emerge from and guarantee a condition of shared freedom among all of the political community’s members.
I construct this normative architecture from the intellectual history of the administrative state. The history begins with German public law scholars in the nineteenth century, whose ideas the American Progressives transformed at the dawn of the twentieth. This intellectual trajectory reveals the emancipatory tasks that motivated and legitimated administrative power on the European continent, and shows as well the great danger posed by bureaucracy without the involvement of the public in administration. That history foregrounds the democratic forms of administration that were imagined and implemented in the United States. The path of American legal and political development has partially realized the Progressive vision I reconstruct. We have developed participatory forms of administrative policymaking and bureaucracies capable of efficient service delivery, which reflect Progressive ideals. But today these institutional and ideological legacies have been marginalized, distorted, and undermined by the rise of technocratic theories of government and plebiscitary forms of democratic politics. I will argue for reforms in American public law and for alterations in public consciousness that would advance the project of Progressive democracy.
My turn to German thought may seem surprising to those American legal scholars steeped in our domestic tradition, the transnational roots of which seem to extend no further than English common law and constitutionalism. But this book will show how many of the American political theorists, social scientists, legal scholars, and statesmen who conceptualized and built up our
administrative state did so with German theory and practice in mind. In particular, they learned from the German ideal of the Rechtsstaat a “law state” that would guarantee individual freedom and promote social welfare with statutory authorization and through administrative action. To the extent contemporary theorists engage with this German background, their point of reference is usually the thought of Max Weber, who offered a pathbreaking account of bureaucracy and formal-legal authority in the early twentieth century.2 Weber’s vision of a state legitimated by statutory law, specialized scientific knowledge, and bureaucratic neutrality has shaped scholarly understandings of the American public law system.
I argue that this reliance on Weber has led to a truncated and distorted conception of the administrative state. His theory reflected a particularly unstable moment in German history when bureaucracy had lost its connection to substantive political values and instead took on a formal, instrumental cast. I turn back to the thought of G.W.F. Hegel to enrich our understanding of the purpose and structure of modern American government. I show how Hegelian ideas inspired Progressive thinking in the formative years of the regulatory state. Scholars such as John Dewey, Mary Follett, W.E.B Du Bois, Woodrow Wilson, and Frank Goodnow embraced Hegel’s concept of a state committed to individual freedom, but enlarged it to encompass democratic values. I unearth this Hegelian background not merely because it is a contingent fact of intellectual history: more than this, Hegel’s thought provides a firmer foundation for understanding the immanent relationship between public law and practical reason. I argue that we should reconsider Progressive Hegelianism as a model for the present, because it shows us how we might construct a state that furthers the freedom of citizens, both as individuals and as political consociates.
Recovering this Progressive theory of the democratic state is essential in the present moment. Though administrative law is prone to perpetual crises of legitimacy,3 the presidency of Barack Obama saw particularly acute confrontations between liberal efforts to deploy the state to improve social welfare and vindicate civil rights, on the one hand, and conservative reaction against this trend on the supposed basis of constitutional principle, on the other. A significant strand of this reaction has targeted the Hegelian Progressives, in particular, arguing that they imported dangerous, proto-totalitarian ideas into American law.4 The ongoing conservative project to uproot the legacy of Progressivism, the New Deal, and the Second Reconstruction has borne fruit in the Trump administration’s attempted “deconstruction of the administrative state.”5 From financial regulation, to healthcare provision, to environmental protection, to sex equality, to the very independence of the civil service, the Trump administration has waged war on the regulatory state that has taken shape over the past century.
It is an open question, as of this writing, whether this project will succeed. Scholars, public officials, and citizens who wish to understand or respond to this reactionary agenda must first get to know the ideals and the institutions of the Progressive state, the remnants of which conservatives wish to expunge. My aim is therefore to retrieve the Progressive theory of democracy and its legacy for American political development so that these become available to us in the present. This project is not merely restorative, however. I want to help us build something new on the buried foundations of Progressivism—a political architecture that leans on its strengths and buttresses its weaknesses.
Before I explain my methods, I will situate my claims in the broader tradition of administrative critique in modern political theory. This wider survey will show how my claims relate to the treatments of bureaucracy in neighboring traditions of thought. By analyzing the most trenchant indictments of bureaucratic rule, we can discern the challenges my defense of administration must answer and the dangers administration must avoid.
I. THE SPECTER OF BUREAUCRATIC DOMINATION IN MODERN POLITICAL THEORY
Few have expressed the virtues of American democracy and the vices of European bureaucracy with greater eloquence than Alexis de Tocqueville. He observed that Jacksonian democracy was constituted by local forms of participatory government, economic equality, a dense network of civil associations, and the high esteem placed on law, courts, and attorneys. These together produced “the slow and quiet action of society upon itself” and a “state of things really founded upon the enlightened will of the people.”6 With limited powers delegated to the federal government and most authority held in local deliberative assemblies, he observed an “absence of what we term the Government, or the Administration.”7 The exercise of administrative power was transitory and illegible: “The authority which public men possess in America is so brief . . . that the acts of a community frequently leave fewer traces than the events in a private family. . . . But little is committed to writing, and that little is soon wafted away forever, like the leaves of Sybil, by the smallest breeze.”8
While Tocqueville is frequently read as embracing America’s administrative decentralization as a check to its democratic constitution,9 his view was more complex. He argued that the American mixture of majority rule and impermanent administration could thwart the responsible exercise of democratic power. These institutions created a disparity between the strength of popular aspirations and the weak institutional framework that attempted to realize
those aspirations: “by changing their administrative forms as often as they do, the inhabitants of the United States compromise the stability of their government. It may be apprehended that men, perpetually thwarted in their designs by the mutability of legislation, will learn to look upon the republic as an inconvenient form of society.”10 Here, Tocqueville compared the United States unfavorably to the European governments, with their permanent administrative machinery. In America,
as the majority is the only power which it is important to court, all its projects are taken up with the greatest ardor, but no sooner is its attention distracted, than all this ardor ceases; whilst in the free states of Europe, where the administration is at once independent and secure, the projects of the legislature continue to be executed, even when its attention is directed to other objects.11
A permanent, bureaucratic officialdom alone would be capable of amplifying democratic voice, extending law in time, and reshaping social relations according to public purposes.
Tocqueville’s assessment of the continuities between the monarchical and the post-revolutionary state in France in his later work, The Old Regime and the Revolution, helps to clarify what he thought was indispensable and what was pernicious about bureaucracy. There, Tocqueville argued that the French Revolution radicalized political and social trends that were already underway during the monarchical regime. He described how the monarchy developed a centralized administration, unified in the Conseil du Roi, which exercised wideranging advisory, legislative, judicial, and administrative powers. The council exercised its power through public officials who implemented the national laws and policies at the local level. This officialdom enhanced the position of the crown against the aristocracy and paved the way for the revolution by placing all persons on an equal footing as the subjects of a central authority. The Royal Council would be reconstituted after the revolution and persist into the present day as the Conseil d’Etat perhaps the world’s foremost administrative institution.
By unsettling the patchwork of feudal authority, the system of absolutist administrative power thus facilitated “the most fundamental, the most durable, the truest portion” of the work of the revolution: “the natural equality of man, and the consequent abolition of all caste, class, or professional privileges, popular sovereignty, the paramount authority of the social body, the uniformity of rules.”12 Once administrative centralization treated all persons as equivalent, taxable objects, it was possible to reconstitute them as equal subjects; once administrative power made good on the king’s claim to sovereignty, his person
could be replaced with the body of the people; once the monarch had the bureaucratic capacity to realize his will across his territory, the general will could do the same; once broadly applicable laws and principles of administration were instituted, equality could become a political reality.
The despotic legacy of administrative power, however, was that it had not cultivated a capacity for political liberty. The feudal order it worked against had wrought a popular hatred of inequality but provided no experience with peaceful political participation. Absolutist bureaucracy likewise did not promote sentiments, skills, and institutions of public reason that would enable inclusive political engagement. The temporary fervor of the revolution for active political life therefore gave way to equal submission to centralized, imperial power under Napoleon Bonaparte.13
Tocqueville’s indictment of post-revolutionary administration cannot be understood to reject bureaucratic institutions as a whole. In the case of America, he saw a democracy that lacked the institutional stability to realize democratic purposes, though the people were well versed in the practice of deliberative politics. In post-revolutionary France, he saw a democracy with awesome administrative power, which lacked customs and institutions of sustained political participation. Neither political order was adequate to the challenges of the new democratic age.
The challenge Tocqueville’s studies together pose is how to marry administrative capacity with political liberty. While liberty without administration will result in frustration and disillusionment with republican government, administration without liberty will descend into despotism. For “nothing but liberty can draw men forth from the isolation into which their independence naturally drives them—can compel them to associate together, in order to come to a common understanding, to debate, and to compromise together on their joint concerns.”14
It was precisely this spirit of joint venture that distinguished the American political project. As Hannah Arendt argued, the pilgrims who established the first colonies had “confidence that they had their own power . . . to combine themselves together into a ‘civil body politick’, which, held together solely by the strength of mutual promise ‘in the presence of God and one another’, supposedly was enough to ‘enact, constitute and frame’ all necessary laws and institutions of government.”15 America had from the outset constituted itself by deliberative democratic practices that have relied upon the cohesive force of rational political engagement. Tocqueville’s insight into the weakness of American administrative power suggested, however, that such practices of mutual promise and self-government would be a necessary but not sufficient condition for republican institutions. Modern democratic rule would require that
mutual promise be born out by lasting bureaucratic performance, which would enforce those promises amidst a complex, resistant, and ever-changing social landscape.
What Tocqueville and Arendt failed to imagine, and what American Progressive thought and practice would first conceive, were forms of administration that cultivated rather than undermined political liberty. For Arendt, bureaucracy was a stultifying “rule by nobody,” which eliminated the space for politics by “imposing innumerable and various rules, all of which tend to ‘normalize’ its members, to make them behave, and to exclude spontaneous action or outstanding achievement.”16 In its most extreme form, such a bureaucratic state becomes totalitarian: all space for the generation of common but contestable experience, discourse, and purpose is eliminated; moral judgment is reduced to meaningless clichés; the worst crimes are perpetrated by thoughtless officials who focus on problems of efficient management, become alienated from the consequences of their action, and cannot think from the perspectives of the persons they control.17
To avoid this dismal fate we must, as Arendt and Tocqueville suggest, maintain forms of rule that exercise power in a cooperative fashion, and widen public space in and through their operation. The problem we confront with bureaucracy is not, as Tocqueville thought, an overemphasis on equality at the expense of liberty or, as Arendt thought, a reduction of politics to social questions that are properly left to the private sphere. The problem is that we have not adequately realized the capacity of administrative institutions to bring the people into the state as partners in the interpretation and implementation of freedom. The solution I reconstruct from the American Progressives is to rethink administrative structures so they are capable of efficient action and yet remain open to the participation of the public in the formation of policy. If the public realm, where “men are together in the manner of speech and action,” can extend into the interior corridors of the state, then the expansion of bureaucracy into society can avoid the pitfalls of democratic despotism and the nightmares of totalitarian rule.18
Recovering a sense of the democratic and emancipatory potential of administration requires attention to its location within the category of public law. It is typical among conservatives to see administration as a departure from law, as a modern form of extralegal prerogative, which is foreign to constitutional forms and values.19 But the ubiquity of “administrative law” courses in the American law school curriculum, and the day-to-day production and implementation of law by federal and state administrative agencies testify to administration’s legal character. So why does the legal status of administration remain so contested and ambiguous? Simple aversion to the welfare state and market regulation may
motivate conservative indictments. But perhaps there also are deeper theoretical puzzles at the interface of law and administration.
Michel Foucault raised the problem of administration’s legal status acutely with his concept of “governmentality.” He described the development of an “art of government” in the eighteenth century, coeval with “the whole development of the administrative apparatus of the territorial monarchies.”20 This new political art, understood as a “right manner of disposing of things,” sought to manage the “population” through the use of economics and statistics.21 Because of this new emphasis on empirical knowledge and a social scientific turn in the practice of rule, the juridical frame of sovereignty receded into the background: “whereas the end of sovereignty is internal to itself and possesses its own intrinsic instrument in the shape of laws, the finality of government resides in the things it manages and in the pursuit of the perfection and intensification of the processes which it directs; and the instruments of government, instead of being laws, now come to be a range of multiform tactics.”22
Though he was at pains to distinguish juristic sovereignty from administrative government, Foucault did not claim that governmentality somehow replaced sovereignty and law. Rather, he meant that governmentality consisted in “using laws themselves as tactics.”23 Laws were no longer merely related circularly to sovereignty, as institutions that originate in the claims of an ultimate political authority and then make that authority real through their operation. Rather, the laws had become instruments for the purposive disposition of persons and things and the discipline of thought and action.24 Foucault thus acknowledged that government was not a fully comprehensive political concept but rather one that stood in relation both to juristic sovereignty and to disciplinary institutions.
Once it is conceded that tactical government does not replace law but instead uses laws as tactics, a space for critique and for public engagement opens up at the intersection between these political forms. Both in Europe and in the United States, the administrative apparatus has arisen hand in hand with administrative law, which affords affected persons the opportunity to contest the legality of state action.25 Administrative law does not reduce administration to the juridical discourse of sovereignty and legal authorization; nor does it fully instrumentalize law so that it can be shaped to fulfill whatever disposition of persons and things the government seeks. Rather, it is a heavily contested domain where the logics of governmentality, disciplinarity, and law struggle with one another and overlap. Because these analytic frames coexist within administration, public law affords opportunities for the public sphere to test their congruity through litigation and other forms of participation.
At issue in such disputes is often precisely what is the “right manner of disposing of things.” Foucault’s use of the term “right” (droite) is significant, with its ambivalence between ethical judgment, legal entitlement, and factual correctness. Precisely these ambivalences make a deliberative rather than a purely technocratic form of administration possible and necessary. There are often administrative problems that are susceptible to more than one factually correct answer, depending on what ethical values we apply and what we interpret statutory rules to authorize, foreclose, or require. Administrative law is therefore at the heart of public law, not only in the sense that it concerns vertical relationships between the state and those subject to its authority, but in the sense that it situates this hierarchy within a web of discursive contestation. As Martin Loughlin has observed, “the ‘public space’ of public law is that which is needed for communication over matters of common existence. . . . Public law expresses a grammar of political conflict that flows through a system of shared understanding.”26
To realize the practical force of this public legal discourse, we cannot think of government in the purely instrumental, economistic terms by which Foucault defines it or of law in the circular terms by which he analyzes sovereignty. Rather, government must be understood as fulfilling certain popular purposes that statutory law identifies and administrative authorities implement. Administrative law, properly understood, is the interpretation of these public purposes. It is therefore not quite the case, as Foucault suggested, that “the techniques of government have become the only political issue, the only real space for political struggle and contestation.”27 Rather, administrative law, as a liminal space between technique, ethics, and sovereignty, has become a (though not “the only”) real space for political action.
The failure to recognize the truly public character of public law is a symptom of the prevailing belief that administration is a concealed and opaque form of rule—whereas publicity is something we encounter in constitutionalism, legislation, scholarship, journalism, political speeches, and conversations in venues such as salons, coffeehouses, and blogs.28 We must resist this sharp, categorical boundary between bureaucracy and the public sphere. Political freedom consists in the interrogation of such institutional boundaries. Foucault himself, in one of his few explicit articulations of his political values, turned to Immanuel Kant’s famous “What Is Enlightenment?” essay to argue that we must take up the “undefined work of freedom” by “grasping the points where change is possible and desirable, and to determine the precise form which this change should take.”29 The continuing requirement of enlightenment was to “work on our limits, that is, a patient labor giving form to our impatience for liberty.”30
If we apply this liminal perspective to Kant’s original essay, it becomes clear that administration itself is a threshold where such changes are conceivable. Kant’s central claim was that for enlightenment “nothing is required but freedom, and indeed the least harmful of anything that could be called freedom: freedom to make public use of one’s reason in all matters.”31 But Kant made an important proviso to this unrestricted use of reason:
the private use of reason may . . . often be very narrowly restricted without this particular hindering the progress of enlightenment. But by “public use of one’s reason” I understand that use which someone makes of it as a scholar before the entire public of the world of readers. What I call the private use of reason is that which one may make of it in a certain civil post or office with which he is entrusted.32
Kant’s claim that bureaucratic reason was “private” reveals the limits of enlightenment in the context of Prussian absolutism. Though it is true that we too, in democratic states, expect public officials to obey the commands given to them by law and by their ministerial superiors, we do not think of such reasoning as “private.” In carrying out a public purpose public officials exercise an open and contestable form of reason. This means that they cannot “behave[] merely passively.”33 They must state their reasons for action publicly. They must use their judgment to resolve any ambiguities in the laws that authorize and constrain their conduct. When they relate the general commands of law to the particular facts they confront in their official capacity, they must consult the sense of the community in exercising their own judgment. Only in this way does the performance of a legal duty remain a truly public thing, such that we can claim to live under a republican form government. By questioning the boundary between public law and public sphere, we engage in the patient labor of giving administrative form to our impatience for liberty.
Kant takes us to the trailhead of the intellectual path this book will follow. Hegel followed in Kant’s footsteps in articulating the political requirements of individual freedom. He sketched a much more ambitious conception of the administration, not as a group of odedient royal servants, but instead as an official class and an institution that stood at the center of an organic constitutional order. He related this bureaucratic class to a specific political project, namely, the establishment and maintenance of a free social order. This vision would influence German public law and eventually inspire the democratic state theory of the American Progressives.
II. RECONSTRUCTIVE POLITICAL THEORY
This book reconstructs a normative vision of the administrative state from theoretical, institutional, and historical fragments.34 I do not claim that we have achieved the ideal that I describe. Nor do I adopt an orthodox “philosophy of history,” which would maintain that political development necessarily unfolds into higher forms of freedom and rationality.35 I mean “Progressive” to denote a practical aspiration for the extension of social and political freedom, which originates in the teachings of our theoretical and institutional past. The Progressive theory I develop is grounded in a set of ideas that took form during the American Progressive Era, from the 1880s to the 1920s. I argue that this theory has continuing descriptive purchase and normative appeal today. My aim is to establish that the resources exist within our philosophical tradition, political history, and legal repertoire to better realize the Progressive conception of the democratic state.
The first step in this project is to recover the intellectual origins of Progressive democracy. I single out a particular line of intellectual development, beginning with Hegel and culminating in the American Progressives. Like Hegel, the Progressives sought to build an administrative state that would guarantee individual freedom. But unlike Hegel, they insisted that such a state must be democratic. This intellectual history shows what is cosmopolitan and what is specifically American about Progressive democracy. It locates a major aspect of our political tradition within a transatlantic discourse, thus rejecting the notion that American thought and practice can be understood apart from its broader context. At the same time, I show how the appropriation and transformation of German ideas resulted in distinctively American innovations that were in fact superior to the ideas that inspired them.
The second step in this reconstruction is to show how this intellectual strain has been at work in American political development. My account of the New Deal and the Second Reconstruction will show how the ideal of Progressive democracy was carried out in practice by administrative agencies during these periods of constitutional ferment. This study unearths the buried foundations for a political architecture that we might construct in our present—a common edifice that would “provide[] the community with a center or centers” and thus allow individuals to “gain their sense of place in a history, in a community, by relating their dwelling to that center.”36 This institutional reconstruction shows that Progressive conceptions are not only theoretically but also practically available to us. The various organizational configurations that arose in this period also tease out tensions within the Progressive tradition—tensions between the efficient provision of the requisites for democratic politics, on the one hand, and the broad-based participation of the people in the formulation
of administrative policy, on the other. This history can then provide models and warnings for our present and future, helping us to build a state that engages the people in articulating their shared norms while effectively implementing a free and equal form of political association.
The third step is to reconstruct the values and structural properties that such a political project holds. It is possible, in principle, to develop such a normative theory of the administrative state without grounding it first in a single philosophical tradition. Henry S. Richardson has offered such an account, synthesizing contemporary liberal, republican, and democratic theory to explain under what circumstances bureaucratic power is legitimate.37 His basic argument, with which I agree, is that administrators must use practical judgment and deliberate with affected persons when they exercise authority. Because of his focus on contemporary political theory, however, he does not engage with a set of essential questions that the Hegelian Progressive tradition discloses and makes tractable: What is the proper regulative relationship among the state, civil society, and the public sphere? How should the practice of administration alter our conception of legal rights and duties rather than merely operate within their fixed ambit? How can we sustain democratic legitimacy when laws and policies can rarely be fully justified by reasoned deliberation prior to their implementation? What are the costs of a fully rational public reason, and how might these costs be managed? These are the questions my normative theory sets out to answer.
III. THE PUBLIC’S LAW, CONSTITUTIONALISM, AND ADMINISTRATIVE LEGITIMACY
My account enters into a lively contemporary debate over the nature, legitimacy, and crises of the American administrative state. Some scholars have claimed that the administrative state is simply unconstitutional because it vests legislative and adjudicative power in executive institutions and more broadly threatens individual rights. According to this argument, the Progressives are largely responsible for our fall from constitutional grace. Philip Hamburger, for instance, argues that contemporary American administrative law is rooted partly in the Hegelian Progressives’ “academic idealization of administrative power . . . and corresponding contempt for many of the formalities of constitutional law.”38 Hamburger worries that the Progressive theory and its instantiation in administrative law has undermined the Constitution’s separation of powers and the protection of individual rights against governmental encroachment.
The Progressive account answers such concerns by turning to the fundamental place of democracy in our constitutional order. “We the people” are sovereign here, not some natural law sent down from a “brooding omnipresence
in the sky.”39 Constitutional structures and individual rights must therefore be interpreted and delimited according to the fundamental requirements of collective self-government. The Progressive theory outlines such requirements. Democracy requires the equal freedom of all citizens. The meaning of freedom must be decided in argument and action among the people themselves, in a way that allows all voices to be heard and shared norms to emerge as the public’s law—the “articulate voice” of the people.40 Administrative bodies help to constitute the public’s law, providing fora in which the abstract commands of statutes are constructed with due consideration of the entitlements, interests, and self-understandings of those the laws bind or otherwise affect. Constitutional values continue to play a role in Progressive thought. But they only provide the broad outlines for a democratic order, the details of which must be specified through legislation, administrative practice, and public participation in governmental processes. The Constitution can only tell us so much about what the state is and what it ought to do. Structured dialogue between the people and their officials tell us the rest.
Scholars sympathetic to the welfare state nonetheless continue to be deeply suspicious about Progressive democracy, in large part because of its German roots. Anne Kornhauser, for example, repairs to the liberal theory of John Rawls to avoid perceived threats of teutonic authoritarianism in the American administrative state.41 Such a theory, much like its more conservative cousins, privileges the classical individual rights of private property, contract, and conscience above and beyond the requirements of social welfare.42 The normative theory I reconstruct rejects any such serial ordering of rights and welfare. The Progressive theory reveals how relatively egalitarian scholars such as Rawls and Kornhauser have conceded the premises of political discourse to a libertarian philosophy that treats individuals as prior to society and privileges their private interests above those of the political community as a whole. I follow the Hegelian Progressives in arguing, by contrast, that the value of individual rights can only be understood by reference to their role in securing collective selfgovernment. As a consequence, the rights of the individual cannot claim any absolute priority over the rights of the democratic public. They give individuals a sphere of independence from public power just so that the public’s law can rely on their autonomous judgments to underwrite—or to challenge and ultimately fortify—its legitimacy.
Constitutional values sometimes play a more constructive role in scholarly accounts of the administrative state. Jon D. Michaels, for instance, has argued that the state draws its legitimacy from an “administrative separation of powers,” in which political appointees play the role of the elected executive, the civil service substitutes for the judiciary, and civil society groups act like the legislature.43 This system “situates the modern administrative state
