Unmasking the Administrative State Read online

  The state, and modern social science, purports to have the capacity to institutionalize rationality in the service of will through utilization of a universal class, the bureaucracy. Paradoxically, this rationality is to be achieved through the efforts of that class of persons who are devoid of a personal passion for power. Their very disinterestedness would ensure the kind of independence and objectivity necessary to carry out the will of the people. Philosophy of History had distorted the relationship between theory and practice; practice had provided the basis for theory, and theory subsequently distorted the understanding of practice. There could be no principled or autonomous ground, in reason or nature, from which to make prudential judgments regarding politics. As a result, the practice of politics could not be moderated by any standard whatsoever. The twentieth century bore witness to the demise of moderation in politics and revealed the rise of those tyrannies spawned by the triumph of will.

  The great thinkers of the nineteenth century, Strauss showed, had rejected nature as a standard of justice. They had all, in one form or another, embraced philosophy of History. Pointing specifically to the failures of Marx and Nietzsche, Strauss once again recognized the importance of prudence and moderation in political life: “But perhaps one can say that their grandiose failures make it easier for us who have experienced those failures to understand again the old saying that wisdom cannot be separated from moderation and hence to understand that wisdom requires unhesitating loyalty to a decent constitution and even to the cause of constitutionalism. Moderation will protect us against the twin dangers of visionary expectations from politics and unmanly contempt for politics.”7

  In the twentieth century, the rational administrative structures that have become dominant in the modern state are the product of “visionary expectations from politics.” At the same time, they reflect in their neutral bureaucracies, an “unmanly contempt for politics,” an indulgence that has accompanied the belief that partisanship has ended and rational rule has begun. Constitutional government does not induce visionary expectations from government, nor is it contemptuous of politics. It is limited government. It is moderated by a rootedness in nature, which requires a reasonable and realistic understanding of the relationship of theory and practice, of ends and means. Consequently, prudence, not science, is the virtue that is paramount in terms of understanding political practice. But prudence is necessarily concerned with means. It presupposes the possibility of moral virtue to direct men to the right, or good, ends.

  Thus, the political theory of constitutionalism could not acquiesce in the view that good or even “rational” administration can replace the necessity for prudence in politics. This is so because man has not, and perhaps cannot, become fully wise concerning politics. Furthermore, technical rationality, or science, cannot replace the necessity of justice. Hence, not the most efficient nor enlightened bureaucracy could legitimately relieve the people of the responsibility of governing themselves. In a constitutional republic, unlike the theological regimes that preceded it, the title to rule could not be divine knowledge nor could it be the rational, or scientific, knowledge implicit in the idea of the modern state. Only limited government is compatible with moderation in politics.

  This reminds us of the mission of the Claremont Institute: to “restore the principles of the American Founding to their rightful, preeminent authority in our national life.” It has not been easy to restore an understanding of those principles, let alone reestablish their authority, in our national life. In our time, the likely defenders of constitutional government are those who love the country, mostly because it is their country. They recognize that the Constitution is responsible for the greatness of their country. However, there are those who think the country is fundamentally unjust. They believe the Constitution is responsible for its failure to achieve social justice. They believe that the purpose of the administrative state is the progressive transformation of society on behalf of will, or consciousness of what they understand as freedom. Unfortunately, neither its defenders nor its opponents understand the natural and rational foundation of constitutional government. Hence, the principles that establish the goodness, or justice, of limited government are without theoretical or political defense.

  However, it is still possible to take political advantage of those who love the country. Although James Madison insisted in Federalist 49, “it is the reason alone, of the public that ought to control and regulate the government. The passions ought to be regulated by the government.” He knew that “the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.” The only exception would be in a nation of philosophers, where “a reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason.” He knew no such nation existed. But he would have insisted, nonetheless, that constitutionalism requires an enlightened or rational defense of free and limited government (see Federalist 49). Hence, he recognized the importance of a liberal education in terms of perpetuating an understanding of the principles of nature and reason. He was confident, as Washington had been, that the “foundation of our Empire was not laid in the gloomy age of Ignorance and Superstition, but at an Epocha when the rights of mankind were better understood and more clearly defined, than at any former period, the researches of the human mind, after social happiness, have been carried to a great extent, the Treasures of knowledge, acquired by the labours of Philosophers, Sages and Legislatures, through a long succession of years, are laid open for our use, and their collected wisdom may be happily applied in the Establishment of our forms of Government.”8

  Neither Washington nor Madison could have known that the so-called enlightened or learned in the academy and university would turn against “those treasures of knowledge” of which Washington had spoken. The self-destruction of reason was a product of a later Western philosophy of History itself. Indeed, modern education, influenced by that thought, has nearly succeeded in legitimizing the administrative state. In the process, it has helped to undermine the regime of civil and religious liberty. And the rights of man rest precariously in the hands of increasingly immoderate and unstable governments. We have learned in the twentieth century, contrary to the teaching of the Progressives, that tyranny is not a thing of the past.

  Thus, I am certain the Claremont Institute will continue to fight to restore the principles of the founding. It will fight not merely because it wants to win, but because it deserves to win, and not for ourselves alone, but for our posterity. Even if it fails to persuade this generation of the goodness of the principles inherent in constitutionalism and is unable to convince the people of the potential danger of the tyranny inherent in the administrative state, perhaps, it can light the way for those in the future who in darker days can understand it because they will have experienced it. Then the work of the Institute might resonate with those who will, perhaps, once again be open to the restoration of the principles of the founding. In that time, it will be possible, once again, to restore their authority, because it will be easier to understand the goodness or justice of those principles.

  2

  Our Abandoned Constitution

  AMERICA HAS A PROBLEM, not because of our Constitution but because constitutionalism as a theoretical doctrine is no longer meaningful in our politics.1 A constitution is only meaningful if its principles, which authorize government, are understood to be permanent and unchangeable, in contrast to the statute laws made by government that alter with circumstances and changing political requirements of each generation. If a written constitution is to have any meaning, it must have a rational or theoretical ground that distinguishes it from government. When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or are denied, the constitution can no longer impose limits on the power of government. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals. When t
hat transformation occurred, as it did in the twentieth century, the sovereignty of the people, established by the Constitution, was replaced by the sovereignty of government, understood in terms of the modern concept of the rational or administrative state. It was a theoretical doctrine, the philosophy of History, that effected this transformation and established the intellectual and moral foundations of progressive politics.

  Established on the foundation of natural rights, constitutionalism has been steadily undermined by the acceptance of the new doctrine of History. The Progressive movement, which is the political instrument of that theoretical revolution, had as its fundamental purpose the destruction of the political and moral authority of the US Constitution. Because of the success of the Progressive movement, contemporary American politics is animated by a political theory denying permanent principles of right derived from nature and reason. In exposing the theoretical roots of Progressivism and the liberalism it has spawned, it is possible to reveal the difference between a constitutional government and the modern state. That difference, both theoretical and practical, becomes apparent when comparing constitutionalism as it was understood by the American Founders and Thomas Paine and its transformation at the hands of the most successful Progressive politician of the twentieth century, Franklin Roosevelt.

  Constitutionalism: Two Views

  Thomas Paine spoke for nearly all the Founding Fathers when he wrote: “A Constitution is a thing antecedent to a Government; and a Government is only the creature of a Constitution. The Constitution of a country is not the act of its Government, but of the people constituting a Government.”2 Paine said he had to deny what had “been thought a considerable advance towards establishing the principles of Freedom … that Government is a compact between those who govern and those who are governed.”3 He knew that the defense of the sovereignty of the people and the protection of their individual rights required the firm establishment of the distinction between government and constitution, with the latter resting upon a social compact of the people themselves. The fact therefore must be, he insisted, “that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a Government: and this is the only mode in which Governments have a right to arise, and the only principle on which they have a right to exist.”4

  The social compact, therefore, must be understood in terms of a distinction between nature and convention. A constitution, unlike government, derives its authority from the laws of nature, or reason, which requires the protection of the natural rights of individuals as the chief purpose of government. It rests upon a political theory that established principles designed to serve that purpose. Consequently, it is possible to determine the powers and limitations of government precisely because its authority is derived from a more fundamental compact.

  A constitution, therefore, Paine noted,

  is the body of elements … which contains the principles on which the Government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the duration of parliaments … the powers which the executive part of the Government shall have … and the principles on which it shall act, and by which it shall be bound.5

  Paine assumed that nature and reason, not government, established the ground from which those principles arose. The distinction between a constitution and government must rest upon the possibility of distinguishing nature from convention, reason from will (or passion), and natural (or fundamental) from positive law. The Founders, like Paine, had been unwilling to risk the defense of human freedom and the rights of individuals by reaffirming the age-old corrupt bargain between the rulers and the ruled. Consequently, the American Founders had insisted that the social compact is of the people themselves. It was not promulgated with the permission and consent of any actual governing body but rested on the eternal laws of nature and reason. Only upon the foundation of natural right had it become possible to establish the rational authority of an enlightened people to institute government on its own behalf.

  A written constitution, therefore, is an attempt to spell out the conditions of just and reasonable government. It separates the law made by government (i.e., by legislative majorities) from the fundamental law, made by the people to protect their natural rights. The laws of legislative majorities are legitimate only insofar as they are consistent with the principles laid down in the fundamental law. A written constitution viewed merely as positive law would be wholly unintelligible theoretically. But in 1932, Franklin Roosevelt expressed a view, common among liberals, that the time had come to reinterpret the social contract in response to modern conditions. Animated by a progressive understanding of History, such a fundamental reappraisal was thought necessary because it was assumed that there could be no permanent principles of political right. In Roosevelt’s creative interpretation, spelled out in his Commonwealth Club address in September 1932, he noted:

  The Declaration of Independence discusses the problem of Government in terms of a contract. Government is a relation of give and take, a contract, perforce, if we would follow the thinking out of which it grew. Under such a contract, rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the redefinition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon Government and those who conduct Government.6

  Roosevelt assumed and simply asserted that the compact is between government and the people. But that is contrary to both the theoretical and practical meaning of the original social compact. The principles of the Declaration of Independence and the political theory of constitutionalism rested upon the defense of individual natural rights as the best ground to ensure the sovereignty and safety of the people.

  Indeed, what established the link between the principles of the Declaration of Independence and the political science of the Constitution is the notion of the people as sovereign, with government as the people’s creation and servant. It was on this ground that Jefferson could justify the revolution against Britain; it had become “necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”7 Therefore, it was with reference to the Laws of Nature that it had become possible to say on behalf of that people:

  We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.8

  This is not a compact of government with the people. It is the people who assign government its role, which is the protection of their individual rights; when it fails to do so, it must be altered or abolished.

  Similarly, the Constitution begins by institutionalizing the authority of the people as the foundation of the compact: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” It is the people who established a constitution. It was the Constitution, or the compact of the people, that instituted and limited the power of government, by subordinating governmental institutions to the authority of a written constitution (and separating the powers of the branches of government).

  In
Roosevelt’s reinterpretation, government or the state determines the conditions of the social compact, thereby not only diminishing the authority of the Constitution but undermining the sovereignty of the people. By suggesting that the people accord government power on the condition that they are given rights, the concept of social or group rights (and subsequently entitlements), becomes the moral foundation of government. The purpose of government is therefore linked to the satisfaction of needs, economic and social. Consequently, Roosevelt would insist that “the issue of Government has always been whether individual men and women will have to serve some system of Government or economics, or whether a system of Government and economics exists to serve individual men and women.”9 Understood in this way, the economic (and social) system must come under the control of government before it can serve the people. And government must, of necessity, become the arbiter of rights, both economic and political. The will of the people must be established by government before it can be put into effect by the technical expertise of its bureaucracy. At that point, politics must give way to administration. In Roosevelt’s view, the moral authority of government had come to replace the moral authority of the people’s compact, and the sovereignty of the State would come to replace the sovereignty of the people. By undermining the attachment of individuals to the constitutional order as the best defense of their rights, Progressivism teaches them to believe that government is the only source and defender of their rights.