The Making of the Administrative State

 

 

The Progressives bequeathed us a regime without legitimacy.

 

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The 1787 Constitutional Convention, Benjamin Franklin famously said, gave America “a republic—if you can keep it.” We couldn’t. It’s not that the framers’ wonderful structure of self-government slipped away by carelessness. Rather, single-minded men purposely usurped it, and Ronald J. Pestritto’s America Transformed tells the tragic tale of how the Progressives, as they called themselves, deformed and abolished one of the greatest triumphs of the Western Enlightenment, in the name of Hegel, Darwin, modernity, and efficiency, all under the magician’s scarf of hocus-pocus fake democracy. The end result of this sleight-of-hand, though Pestritto’s gripping book is too polite to say so baldly, is that we now live under a regime without legitimacy.

We could not ask for a better debunker of Progressive trickery. The graduate dean and a professor of politics at Hillsdale College, Pestritto has been among the leading pioneers in the revisionist study of this era, notably with his earlier, groundbreaking Woodrow Wilson and the Roots of Modern Liberalism (2005). Indeed, the chief magus of this drama is Wilson, our first professor-president, who formulated the Progressive creed in his academic works of the 1880s, before he assumed Princeton’s presidency, with embellishments from ivory-tower colleagues Frank Goodnow, president of Johns Hopkins and founding president of the American Political Science Association, and the much younger Harvard law professor (and later dean) James Landis, who as a New Deal bureaucrat helped transform Progressive theory into a gargantuan governmental reality. Earlier in the political arena came pungent, energetic contributions from Theodore Roosevelt, and Progressivism transformed the messages that came from the elite pulpits and schools, as well.

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In launching “a direct assault on the core ideas of the American founding,” as Pestritto puts it, Wilson and his allies allowed that the Founding Fathers were good enough democrats for their time—but that was the rub. The late 18th century, like classical Greece and Rome with their proto-republics, wasn’t historically ready for real democracy. A follower of German philosopher G.W.F. Hegel, Wilson believed that history progresses inexorably through evolutionary stages to a divinely ordained end, the modern democratic state, “the completest possible realization of corporate, cooperative state life for a whole people,” Wilson wrote, not altogether reassuringly. Perfected modern democracy, he explained, “is not the rule of the many, but the rule of the whole,” and a nation can only attain it when its citizens, also evolving, have achieved unity of the public mind, which, like Hegel, he considered an unalloyed good, though others might consider it an Orwellian dystopia.

Lack of that unity was the founding’s fatal flaw—understandably enough, given the historical circumstances of the time, the Progressives thought, when building a country in the wilderness required so much individual initiative that people elevated individualism into a political philosophy based on John Locke’s creed that personal rights derive from nature and nature’s God, and preexist society. Indeed, the founders began the Declaration of Independence with that creed and wrote a Constitution to safeguard those individual rights against society itself—what they called the tyranny of the majority. As Goodnow put it, “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.” The founders’ Newtonian understanding of physics seemed to ratify this constitutional design, in which countervailing forces held the political system in equipoise, as centrifugal and centripetal forces did the universe itself.

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But both their history and their science were mistaken, Wilson countered. Lockean social compact theories about the origin of government are mere “a priori speculations,” which “simply ha[ve] no historical foundation,” he wrote. History shows no period when the individual had an existence that preceded society. Societies and governments began with the patriarchal family and the tribe and then underwent, as the evidence of the admirable, unwritten British constitution shows, a long, organic evolution. And ignorance of evolution is also the flaw in the founders’ science. “[G]overnment is not a machine, but a living thing,” Wilson insisted, “accountable to Darwin, not to Newton.” It continually adapts and improves, “modified by its environment” and “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.”

Instead of the founders’ Constitution, therefore, America needed a “living constitution,” Wilson and his fellow Progressives argued, able to adapt to the rapidly changing circumstances of modernity, as the British constitution does. Not only did the forward march of history require such flexibility, but it also had already made the founders’ fears of the threat to individual liberty obsolete, since these fears grew out of a belief in an unchanging, aggressive human nature and a rejection of the idea of human perfectibility. But evolution proved the founders wrong. It “had brought about an improvement in the human condition,” as Pestritto describes the Progressive argument, “such that the will of the people was no longer in danger of becoming factious.” Simultaneously, history’s progress, especially the outcome of the Civil War, had resolved the chief sources of political contention. Americans now wanted essentially the same thing, and the task of government was to provide it.

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The majoritarian tyranny that the framers most feared, as James Madison explained in The Federalist, was that the unpropertied many would vote away the property of the rich few—property being, in the Lockean scheme, one of the fundamental natural rights that society exists to protect. But as Progressive historian Charles Beard charged—scurrilously but influentially—a squalid ulterior motive lay behind the protections of individual rights for which the framers built their scheme of limited, enumerated, and divided powers. They were themselves among the rich few, anxious to shield their own possessions, and the self-interest that impelled them is all too evident to the discerning Progressive. It’s time, therefore, to give up our “superstitious reverence” for the Constitution, Beard announced, and get on with doing the real work of democracy, which their constitutional republic purposely impedes.

Above all, we need to jettison our superstition about private property. Property rights do not spring from nature but rather are “contingent on history or on social convention,” as Pestritto describes the Progressive argument, and they are therefore “subject to revision as government evolves historically.” Like all rights, as Goodnow expressed it, they are “conferred upon [man], not by his Creator, but rather by the society to which he belongs,” which decides what they are according to its needs. “Social expediency, rather than natural right, is thus to determine the sphere of individual freedom of action.”

It follows of course, according to Theodore Roosevelt, that nothing should prohibit “the whole people” from “regulating the use of property so that human life, particularly the lives of working men, shall be safer, freer, and happier.” Obviously, “human rights” should trump “property rights,” he said, and obviously government “should permit [wealth] to be gained only so long as the gaining represents benefit to the community.” Special interests and special privilege—which for T.R., Pestritto notes, always meant private property—had for too long used “the rules of the game” to benefit themselves rather than the whole people. Ever-accelerating and more complex industrial development since the mid-19th century had spawned “very serious social problems,” T.R. believed, to which the old laws that “were once quite sufficient to regulate the accumulation and distribution of wealth…are no longer sufficient.” The nation now needs “far more active governmental interference with social and economic conditions,” extending even to “complete power to regulate and control all the great industrial concerns engaged in interstate business.”

To what end? “I stand,” said Roosevelt, “for having those rules changed so as to work for a more substantial equality of opportunity and of reward.” Did his quest for equality of condition—through property redistribution via a graduated income tax and high inheritance taxes, through trust-busting and corporate regulation—mean that he had socialism in mind? Certainly Woodrow Wilson had no trouble with that idea, since he believed that socialism and democracy were essentially the same thing: “They both rest at bottom upon the absolute right of the community to determine its own destiny and that of its members.”

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There is an authoritarian undertone in that last phrase that vibrates with Progressivism’s key contradictions. If the public mind has at last achieved Hegelian union in its shared consciousness, how is the public to articulate that deep consensus that Progressives define as true democracy? The people can vote, sure, but they are not so much expressing specific policy preferences as electing “the leader of men,” said Wilson, who possesses “such sympathetic and penetrative insight as shall enable him to discern quite unerringly the motives which move other men in the mass.” But the president does something more than merely read the public mind. “Leadership and control must be lodged somewhere,” Wilson wrote, and the president, in distilling the collective will, also shapes and guides it. He is no mere sounding board or representative. T.R., who made the same vast claim, saw the possible objection to it and offered a crisp rebuttal. “Concentrated power is palpable, visible, responsible, easily reached, quickly held to account,” he said. If the president wields it against the general will, the people can fire him.

Still, the Progressives’ genuine belief in the unanimity of the public mind and will led them to believe sincerely that America had evolved to a placid, essentially post-political state, notwithstanding an inconsequential remnant of political froth on the surface. Having passed the era of constitution making, Wilson wrote in 1885, the country had entered “a new territory in which we need new guides, the vast territory of administration,” which is separate from politics and must be absolutely shielded from it. And here his and T.R.’s idea of presidential accountability begins to dissolve. The new administrative era will need not one highly visible man to discern, shape, and articulate the general will but a dispersed army of experts, trained in the social sciences, to carry out “the will of the whole” in regulating business and property.

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Pestritto details the further mountain of contradiction here at the heart of Progressive theory. Elites, rather than the people themselves, can discern the general will, since after all it is not the same thing as “the will of majorities,” Wilson contended paradoxically, but rather “dwells with those who do the practical thinking and organize the best concert of action: those who hit upon opinions fit to be made prevalent, and have the capacity to make them so.” This is a strange theory of groupthink as democracy—a Hegelian dream transformed into an Orwellian nightmare—and it gets stranger still. “An intelligent nation cannot be led or ruled except by thoroughly-trained and completely-educated men,” Wilson wrote of his administrative corps. “Only comprehensive information and entire mastery of principles and details can qualify for command.”

So the territory of administration is really the reign of rulers and commanders, albeit expert ones. By way of Hegel, Wilson has returned to the enlightened despotism of Frederick the Great. Acknowledging the foreignness of the administrative machinery he championed, Wilson countered that it is merely a means he was recommending, not an end. After all, he wrote, “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.” The murder image is the giveaway: Progressivism means the death of self-government. To put it more mildly, as Pestritto does, “a central irony in progressive thought” is its simultaneous insistence on greater democracy and greater policymaking by expert administrators unaccountable to the democratic electorate. That is what the Progressives meant by insisting on the separation of administration from politics.

As president, Wilson began to turn this theory into reality, creating such administrative agencies as the Federal Reserve Board and the Federal Trade Commission (FTC), before World War I forced his attention abroad. So it wasn’t until Franklin Roosevelt’s presidency that FTC member and Securities and Exchange chief James Landis masterminded the full implementation of the Wilsonian program as “the New Deal architect of the administrative state,” in Pestritto’s phrase. A 1932 speech on “Progressive Government,” Pestritto thinks, was FDR’s announcement that he planned not to let a good crisis like the Depression go to waste but rather to use it as a warrant to remake the federal government along cousin Teddy’s and Wilson’s Progressive lines. Certainly that speech charged that some tycoons had made themselves almost medieval “princes of property,” and, should they wield their vast “power contrary to the public welfare, the Government must be swift to enter and protect the public interest.” And FDR knew, too, as he remarked later, that his relentless push to control them by “creating independent regulatory commissions, who perform administrative work in addition to judicial work, threatens to develop a ‘fourth branch’ of Government for which there is no sanction in the Constitution”—though whether his tone was rueful, bemused, or proud I’d love to know.

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Looking back later, Landis clearly set forth his recipe for cooking up the alphabet soup of New Deal administrative agencies. He took for granted “the inadequacy of a simple tripartite form of government to deal with modern problems,” since changed economic circumstances, he said, had vastly expanded the purpose of government from the Constitution’s rights protection to “promoting the welfare of the governed.” As he explained in the passive voice that ascribes no responsibility to any identifiable human agent, “concessions to social maladjustments thus had to be made”—the chief of which was the jettisoning of the separation of powers that was the heart of the Constitution. Agencies would regulate industries by making rules like a legislature, carrying them out like an executive, and adjudicating and punishing infractions of them like a judiciary. And, as administrators made up rules as they went along, there was no pre-established rule of law for citizens to follow.

Sure, this was unconstitutional, the more so in that the Constitution not only prohibits the mixing of powers but also doesn’t allow the delegation of legislative or judicial power—or at least didn’t, until the Supreme Court, with advice from Landis to Justice Louis Brandeis, crippled the nondelegation doctrine in 1935 in Humphrey’s Executor vUnited States. But the justification of all this, Landis countered, was efficiency. Moreover, with true ivory-tower obtuseness about human nature, Landis argued that the rectitude and enlightenment of administrators was sufficient protection for citizens. They are “men dedicated to the idea of justice,” he rhapsodized—“men whose sole urge for public service is the opportunity that it affords for the satisfaction of achievement.” When, surveying his administrators in 1960, he detected a hint of careerism and slackness, he urged that what they needed was more money, more discretion, and longer tenure, like judges, so they wouldn’t have to worry about political pressures or procedural niceties. It never occurred to him, Pestritto remarks, “that the founders were correct about the self-interestedness of human nature.”

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Finally, the wide moral and cultural gap between the founders’ universe and the ruled-and-commanded America the Progressives created stands out starkly in the light cast by Pestritto’s chapter on Progressive religion. Formulated by Baptist preacher Walter Rauschenbusch and economist Richard T. Ely, the Progressive-inspired Social Gospel marked a fundamental shift in American Protestantism. Evolution was changing human nature, the new doctrine held, erasing the stain of original sin, while the Hegelian march of history now made possible the creation of the heavenly city here on earth. Protestants, therefore, must renounce their selfish focus on personal salvation in the hereafter, along with the selfishness that lies at the heart of capitalist striving, Ely taught, concentrating instead on loving their neighbor as themselves through service to others, especially through political activism in support of “the elevation of the masses.”

Not only does this creed replace religion with politics and turn both the Protestant ethic and the spirit of capitalism upside down, but it also rejects the thirst for freedom of conscience in the quest for individual salvation that first peopled the American colonies with so many dissenting Protestant refugees fleeing Britain’s established Anglicanism and Europe’s Catholicism. From the very start America was about the individual soul forging its individual fate on earth and in heaven. Freedom of conscience to dissent from the public mind rather than submit to the prevailing orthodoxy—the “general will”—is why they endured such hardships to come to what George Washington called “this second land of promise.” American Protestantism’s “dissidence of dissent,” as Edmund Burke had put it, went hand in hand with “the communion of the spirit of liberty,” a fiery spirit that had little place in the schemes of Hegel, Wilson, or the New Deal.

Pestritto ends his excellent, important intellectual history—drawn from previously published essays and inevitably but not distractingly repetitious—with the hopeful news that the Supreme Court has begun to chip away at the administrative state that Progressivism built, and that the Justices seem increasingly to realize how incompatible the whole structure is with the Constitution they are sworn to uphold. A good thing too, for though “these two distinct regime ideas have coexisted uneasily” for decades, Pestritto writes, “we will not be able to continue much longer with citizens of two different regimes occupying the same country.”

It’s this split, clearly, that explains the bitterness of today’s politics. R.J. Pestritto maintains a veneer of scholarly neutrality, so let me make his implicit choice thunderously explicit: Give me liberty!

 

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