Critiquing the Administrative State Is Natural

Samuel Goldman has made a stimulating contribution to our political discussions. “What is the Future of Conservatism?” is thoughtful and thought-provoking. In light of the feud between Never Trump conservatives and Trump-supporting conservatives, it is well worth pondering if Goldman is right that we are witnessing a conservative “crack up.”

This concern is not new. He might take a somewhat different line than did R. Emmett Tyrrell, founder of the American Spectator, but his language echoes Tyrrell’s The Conservative Crack-Up (1992). Despair is not new, either. Remember Russell Kirk’s original title for his 1953 classic The Conservative Mind was “The Conservative Rout.”

The charge that classical liberalism is passé or even backward is hardly new, either. In the mid-1940s the mainstream American Left considered The Road to Serfdom, a very popular book in the United States in 1944, to be a “Reactionary Manifesto.” Harvard’s Alvin Hansen denounced it in the New Republic as “The New Crusade Against Planning,” his criticisms of Hayek sounding very much like the Left’s response to the critique of the administrative state.

Given the nature of his argument, it is interesting that the word “fusionism” is absent from Goldman’s essay, for he seems to be arguing that it is fusionism that is dead. There are too many fissions.

The first question he raises is historical, or, rather, about what seem to be his historical premises.  Can a classical liberal give so much scope to history, as Goldman seems to? Remember that the American Revolution occurred before the terms “Left” and “Right” existed as political categories. Ditto “conservative” and “reactionary.”

The concepts “reactionary” and “conservative” are both historical. I always took the former to be the effort to restore a bygone age, and the latter  an effort to preserve as much good as possible amid changing circumstances. To the Left, for which History with a capital “h” provides the foundation for all political thought, these terms are themselves natural. But if human nature is constant, and not evolving, then there are significant constants over time in political life, and in moral life, for that matter; and the standard for judging better and worse in regimes is with relation to what is most fitting for man qua man in a given time and place.

In the historicist perspective, human nature provides no hard floor to judgment. But from the more classic perspective, the one on which the American Revolution was built, it makes more sense to speak of “better” or “worse” rather than “conservative” or “reactionary”—or, for that matter, of “Progressive” or “forward” in “History,” or “backward” in “History.” If one does not believe there is a world spirit, I would ask if these are essential terms. Do they, in fact, get in the way? Do they make it more difficult to recognize mistakes by making them appear as the path History took, rather than the result of deliberate choice?

Remember that American political thought has a significant strain that is non-historical. This strain is entirely comfortable with terms like right and wrong, better and worse, free and unfree, rather than “forward” or “backward” in “History.” As Louis Hartz noted, “the traditionalism of the Americans, like a pure freak of logic, often bore amazing marks of anti-historical rationalism.” For an important line of American thought, the whole language of forward/backward or Progressive/reactionary misses the point. It is no “freak of logic.” It is simple common sense. To the Left, however, classical liberalism itself looks “reactionary,” as it did to Hartz, for among the modern discoveries, they hold, is that of the historicity of human life. It is hard, perhaps impossible, to be a “Progressive” without a faith in History, for what is one Progressing toward if being is not historical?

In the more classic view of history, there can be “conservatives.” Such conservatism begins with the human reality that change happens. A conservative, from this perspective, would be a pre-1789 “conservative,” with a small “c,” seeking to hew as close to a fixed standard as possible amid changes in society. In many ways that was the key to the old “fusionism.” Yet it is important to keep in mind that the American Left—and the Left dominates the American academy and media—regarded “fusionism” itself as no less “reactionary” than it regarded Hayek.

Goldman also speaks historically about the outlook of people engaged in conservative politics. He argues that “for psychological reasons, most people recall with fondness the period of their youth. It is not coincidental that the early conservatives could actually remember the arrangements and mores that many of them wished to restore.” Similarly, “today, it is the comparatively socially stable, economically egalitarian, and culturally homogeneous America that flourished from roughly the end of the Second World War to the mid-1970s that stands out in the popular imagination as a golden age.”

There is probably nostalgia of this kind, but is it so central as Goldman thinks? Is resistance to the proposition that, for example, Bruce Jenner is a “woman” the result of a vain resistance to “progress” or might it be built upon the conviction that the entire transgender movement is a Progressive fad, akin to eugenics in the 1920s? On the other side, is the Left still yearning for a  reprise of a time when GOP control of Congress was unthinkable? Are some of our intellectuals looking backward, to an age before postmodernism gained such a large foothold in the academy? Is moderation to be expected from intellectuals weaned on Martin Heidegger? Can the myth of the “Pragmatic” consensus survive the postmodern turn?

To take a brief detour so as to make the point emphatically, albeit a bit esoterically: In Jewish America, demographic and religious trends might suggest that the arc of history bends toward Chabad. Such a development makes a mockery of the way many of our “Progressives” view history. Carrying the field is proof that an idea or way of life works (or is, in fact, what history demands). On the other hand, it suggests that the branches of Judaism called “Progressive” are making a historical wrong turn. What they view as “justice” is not, in fact, justice, defined by the only standard (History) Progressives recognize.

To recur  to the question of or problem of the administrative state, consider the notion that James Burnham is the source of the critique of the administrative state. I would have to study the question more closely, but to this historian, the claim sounds dubious. It is, however, an extremely effective way to make the critique of the administrative state seem foreign and unusual. The idea that the administrative state, which  delegates legislative, executive, and judicial powers to tenured bureaucrats, is inherently illiberal and hard to reconcile with the rule of law,  is foreign to the mainstream Left. This means it is outside the mainstream of the American academy. But the academic mainstream is not the American mainstream. That is not to say there are no academics in this line.

Woodrow Wilson wrote that his goal was to transform the existing Constitution, with its “Newtonian” checks and balances, into a new and different “Darwinian” one. Presumably the critique of that effort dates at least to critiques of Wilson’s work. As early as the 1920s, as mainstream a scholar as Charles Warren raised the issue. (See the quote near the end of this essay.) The most important book on the topic in the past decade, Philip Hamburger’s Is Administrative Law Unlawful? (2014), is a very different book from Burnham’s (1941) The Managerial Revolution.

As for the future of a liberal American conservatism, the hardest political nut to crack, perhaps, is the collapse of civil society into the state and the (very much related) rise of technocracy. Goldman notes that liberalism depends upon the separation of state from society. We need to take a clear-eyed look at the collapse of the line between civil society and the government. The two key steps were the federal government’s stepping up its regulation of business starting in the Progressive era, and the change in America’s understanding of liberty, privacy, and governance that grew from the postwar civil rights revolution.

The ostensible goal in the early 20th  century was only to regulate businesses. There has been occasional push-back, but America’s government intrudes ever more into our lives.  The size of the Federal Register  increases relentlessly, and the U.S. rank in the index of economic liberty declines. Have neoconservatives, in practice, reduced “liberalism” to free trade, paying too little attention to economic liberty at home?

What began with economic regulation in the Progressive era is extending into more and more of what used to be a largely independent civil society. The federal police power, a power even Alexander Hamilton denied the federal government, is starting to resemble the police powers employed by the states of Europe before the American Revolution. (Would that make it a reactionary trend?) Beyond the regulation of the health and safety of businesses, the leading vehicle for the intrusion of the moral dimension of the police power into civil society has probably been civil rights law. Given the evil of Jim Crow, the laws were necessary. But they were also understood to be an anomaly, an unusual and singular burden on the general liberty of association that is such a critical buffer between society and state. Fifty-plus years on, however, the burden has gotten heavier and is no longer seen as an exception from the general liberty of men and women in civil society. Hence the American Civil Liberties Union is less and less likely defend free speech, at least that emanating from those it deems “reactionary.”

This is not a surprise. As Leo Strauss noted:

The prohibition against every “discrimination,” would mean the abolition of the private sphere, the denial of the difference between the state and society, in a word, the destruction of liberal society.

Anti-discrimination, sacred to the governing class, is no longer an exception to the general liberty Americans have. Many Americans have internalized that change, particularly among those who are employed by the government to police our relations with each other. That said, a huge majority of the American people believes that a photographer, for example, should not be forced to work a wedding he believes is sinful.

Does liberalism demand too much of human nature? Perhaps. But is the average citizen is more prone to human error than is a government employee? As Jefferson noted in his First Inaugural Address:

Sometimes it is said that man cannot be trusted with the government of himself. Can he then be trusted with the government of others? Or have we found angels, in the form of kings, to govern him? Let history answer this question.

Do the bureaucrats need to be “nudged” to do the right thing any less than do the citizens? History suggests an answer—the answer the Constitution provided, a robust separation of powers and other checks that get subverted by the operation of technocracy. What is technocracy but robust executive power, removed from the legislative check, and often the judicial check as well. If conservatives are wary of executive power, as Goldman notes, the critique of the administrative state is entirely natural. That is why James Madison feared that an expansion of federal power would point toward monarchy or perhaps empire.

As the state’s intrusions pile up, and regulations cover more and more areas of American life, the citizens’ ability to manage their own affairs is attenuated, in a similar manner to how over-protective parents produce unproductive adults. The irony is that that very attenuation of civic responsibility is adduced to try to prove that a free and liberal republic is futile. It is the growth of the administrative state and its implicit assault on our liberal constitutional order that are producing an illiberal citizenry. Think of it from an Aristotelian regime-level perspective. The impact of the modern administrative state on American political character is hard to square with a liberal republic.

If I read him right, Goldman worries that Trump, or perhaps Trumpism, represents the creation of an identity-politics America. That is a real concern. It would portend the transformation I alluded to,  from republic to empire. On that model, as in some of our famous urban political machines of times past, each person would have contact with the national government not as an equal individual citizen but as part of a larger identity group. Nowadays, the government encourages Americans to classify themselves along a racial “pentagon”—white, black, Hispanic, Asian, Native American. In time, this will quite possibly create an America of tribes. There is a side of Trumpism, among some of his supporters, that does represent that turn.

Trump himself proposed a different idea in his inaugural address, when he said:

It is time to remember that old wisdom our soldiers will never forget: that whether we are black or brown or white, we all bleed the same red blood of patriots, we all enjoy the same glorious freedoms, and we all salute the same great American Flag.

Conservatives of all stripes, in America at least, can support assimilation, and a more philo-patriotic course of history and civic education in our schools. Whether others can is not nearly so certain. Shortly after the election, Mark Lilla, whose discussion of “reactionary” Americanism Goldman quotes, called for “The End of Identity Liberalism.” He was hammered mercilessly by the Left. It is very suggestive that one piece on “Vox” bears the title, “Progressives Should Not Cave to Anemic Liberals in the ‘Identity Politics’ Debate.” To the mainstream American Left, Lilla’s critique of identity politics is reactionary.

Is the mainstream American Left still “liberal”? If the Left refuses to move off the path of  identity Progressivism, then efforts at national unity will fail. The most likely result will, I fear, be an identity-politics America—one that includes a self-conscious white identity group—in which individuals relate to the state as members of groups, and not as free and equal citizens, constituting a (reactionary?) move to something like an Old World empire. But is not such an eventuality one of the most logical ways to organize an America in which the federal government has such a visible and active role? Is the modern state the vehicle for changing us from a republic into an empire?

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