Administrative law judges threaten the separation of powers, yet the alternatives available for changing the law are fraught with dangers.
I would like to thank Kevin Kosar, Ralph Rossum, and Colleen Sheehan for their thoughtful and generous responses to my essay, “Congress in Search of Itself”. Although there were many areas of agreement, and very few disagreements, each author focused on a different aspect of the problem posed by the contemporary role of Congress, and its status and purpose within the administrative state. In his essay, Kevin Kosar noted that “the story Marini tells is a dispiriting one. In short, the executive branch has grown, Congress has shrunk, and a qualitative transformation of the branches has accompanied this change in size and power… Practically speaking, the institution seems resigned to its subservient position, despite the fact that legislators tell themselves and anyone who will listen that they remain in charge.” Nonetheless, Kosar is not dispirited in his analysis. In his instructive and upbeat response, Kosar presents a very practical blueprint concerning what must be done for Congress to restore its power and reclaim its place as the first branch of government. In a nutshell, it would require the legislature to begin to use the powers the Constitution grants it on behalf of political rule. I could not agree more. But, Kosar also noted that my essay “typifies the breakdown of our constitutional system”, which, presumably, is why it ‘is a dispiriting one’.
I wish it would have been possible to offer a more cheerful analysis of the contemporary Congress. But, I could not overlook the obstacles that stand in the way of political reform. I was concerned that the theoretical foundations of constitutional government, and the institutional arrangements that required the separation of powers on behalf of limited government and popular rule, have been undermined. They no longer establish the fundamental ground of politics or law in Washington. So, the question remains, what determines the character of partisanship in Washington? If the political offices are not understood in terms of their institutional and constitutional purpose, can the Constitution impose any responsibilities, duties, or limits on the powers of Congress, or the presidency and the courts for that matter?
Or, is partisanship in Washington now understood on a theoretical and practical foundation established by historicist thought made politically operative in the modern administrative state? If the latter, then the partisan defense of the contemporary Congress will likely remain a defense of the administrative state. In that case, partisanship on behalf of the administrative state itself will continue to be the primary obstacle that stands in the way of a recovery of a political defense of constitutional government. The separation of powers, and the governing institutions, no longer serve as the principle defenders of a regime of civil and religious liberty. The rights of individuals, and the rule of law itself, are in the hands of the institutions of the administrative state. Consequently, the paramount problem is how to re-establish partisanship on behalf of constitutional government.
Ralph Rossum is right to point to those structural and institutional changes that have altered the original design of American institutions. And, I share his doubts about the Supreme Court’s ability to provide a legal defense of constitutional government and political rule. But, I have my own doubts about his treatment of separation of powers. Rossum understands the importance of progressive thought as fundamental to the establishment of the administrative state. And, he agrees that the politics it has engendered contributed to the undermining of the separation of powers. He argues that: “the Constitution had to evolve: Where once it protected liberty through its limited grants of power to the federal government, federalism, and separation of powers, it must now wield unlimited power to resolve social and economic problems through the organized knowledge and rulemaking and regulatory powers of the administrative state”.
Nonetheless, Rossum believes that “the threat to separation of powers… predates the Progressives. It can be traced to the Framers themselves”. And, he concurs with Patrick Henry’s criticism of the Framers. Henry had rejected the Framers Constitution because, in Henry’s words, “there is no check in [the proposed] Government… Tell me not of checks on paper; but tell me of checks founded on self-love. The English Government is founded on self-love.” But, self-love must be understood to be in the service of something larger, or higher, than the self. Rossum suggests that the self-love Henry admired was in defense of the British aristocracy. He notes that “for Henry, the check on government was self-love based on being a member of a class—in the British case, on being a nobleman in the House of Lords”.
He distinguishes this class based self-love from the motivation used by the American Framers. He suggests: “by contrast, for Madison, the check on government was the personal motives and ambition of members of Congress to protect the “constitutional rights” of their branch of government”. Rossum admits that “the United States did not have classes of citizens as did England, but it would soon have political parties, unanticipated by the Framers, generating the same kind of self-love. Think how much more powerful today is the self-love of Democratic or Republican loyalists to advance the ideology, policy preferences, and power of their parties than their self-interest in protecting congressional prerogatives from the bureaucratic encroachments of the administrative state”. Why is it not in the self-interest of members of Congress to defend congressional prerogatives? Is it not the case that the personal motives of contemporary political partisans are in the service of the administrative state, rather than in the defense of the political institutions and constitutional government?
The question remains: what establishes the larger purpose, the public or common good, which makes self-interest and self-love politically intelligible? I have assumed that Madison understood self-interest, self-love, and ambition as derived from personal motives. Ambition, or love of fame, is the most political passion because it is judged in terms of a public good. Modern political parties are not based on principle, but are established on the ideological and material foundations laid by the administrative state. I doubt that either party understands self-interest or self-love apart from the patronage that has been established within the administrative state. That patronage encompasses nearly every economic, social, political, cultural, religious, scientific, and professional interest that has become dependent upon, and essential to, the practical operation of the rational state. Both parties understand social and economic life in terms of History, or progress, not nature. For both liberals and conservatives, History establishes the ground of politics and morality.
The most politically successful, or progressive, party is the one that has most fully embraced the administrative state as fundamentally just, as the good which justifies self-interest on behalf of progress. The conservative party cannot quite accept the alienation posed by the rejection of the past that is required by rational or administrative rule. But, it has accepted the political and moral conditions established by historicist, or progressive, thought. As a result, it has lost the understanding of the theoretical meaning that had established the good of constitutionalism. Not surprisingly, progressive parties are confident of their purpose, whereas conservative parties are merely cautious.
I think the Framers were well aware that freedom would produce factions, or a concern with the part, or self, rather than the whole. Parties arise because humans are free to pursue their own partial and personal interests. What the Framers came to understand was, that in times of crisis, parties, unlike factions, could also be based on principles that rise above ordinary partisanship. The parties themselves could embody the political and theoretical ground of the common good. Those principles, had been articulated in the Declaration of Independence, made intelligible in terms of nature and reason, and revealed in the understanding of human nature itself. They made it possible to comprehend those passions of self-interest, self-love, and ambition, and to utilize those passions in defense of liberty by structuring the institutions in a way that enabled ambition to counteract ambition.
Madison did not depend upon a paper constitution, but upon human nature itself. In our time, it is the principles themselves, understood in terms of nature and reason that have been denied or forgotten. Parties are now organized factions, and government itself has become a faction on behalf of the administrative state. In these circumstances, it is nearly impossible to conceive, let alone pursue, a common good. From the point of view of the Framers, it may be the case that there is in contemporary bureaucratic society insufficient ambition to maintain the political conditions necessary for popular rule.
Colleen Sheehan denies that the administrative state can be made compatible with constitutional government. She notes, that “for James Madison, the idea of a ruling authority in America must be derived from the people themselves. There can be no specialized rationalistic replacement for the people themselves; there is no substitute for the spirit that “animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government” (Federalist 39). From the Madisonian perspective, the substitution of the administrative state is anti-republican; it is rule by a minority, and it is tantamount to giving up on government of and by the people.” But administrative rule requires giving up on the political reason of the people and their representative, so that the rational experts can carry out their will.
Not surprisingly, Sheehan wonders whether the spirit of liberty still animates the people of America. Nonetheless, she does not believe that the institutional arrangements were defective. She insists that “for Madison, the invention of prudence of separation of powers was more than a tool to prevent tyrannical government; it contributes to a design of institutional arrangements that promote the refinement and enlargement of the public views on the basis of justice and the general good. The latter is of critical importance to Madison because separation of powers is an auxiliary means to control the government; a “dependence on the people” constitutes the primary control (Federalist 51)… The notion of the people as a check upon the undue expansion of governmental power is quintessentially Madisonian”. What becomes critical to a defense of the people’s virtue, is the necessity to refine and enlarge the public view. Hence the importance of public opinion.
Have the people failed to check, and have they even abetted, the rise of the administrative state? Or, has the administrative state attempted to replace political rule, which depends upon a moral defense of civil society institutions, which include the family, churches, and civil associations, with rational rule, which requires the use of social or organized intelligence. If so, it was the transformation of the theoretical opinion that shaped the society and its culture that brought about a fundamental change in public opinion. That made it possible to undermine the intellectual and moral foundations of the regime of civil and religious liberty. Lincoln, better than any democratic statesman, understood the importance of public opinion in terms of political success and failure.
What links the people and the offices and its elected leaders is public opinion. That is why education was thought to be crucial to the perpetuation of self-government, which also made self-rule possible. Historicist thought has undermined the political theory that justified constitutional government. Since the triumph of progressive thought, public opinion has been, the private preserve of specialists, post-modern intellectuals, social scientists, lawyers, bureaucrats. Or, to put it in Hegelian terms, public opinion has been formulated, authorized, and legitimized by what has come to be understood as ‘the rule of organized intelligence’. There is no respectable opinion that has been able to emerge without the authority and the consent of the intellectual elites.
Nor, has there been anything quite like the political challenge to the authority of the cognoscenti, such as that posed by Trump in his appeal to the political authority of the people. The contemporary problem has become one of revitalizing the political by reestablishing the authority of the people. But, does this pose a threat to the intellectual authority of the cognoscenti? Given his flamboyance and his unorthodox method of appeal, many question whether Trump seeks power on behalf of the people and the regime, or on his own behalf. That will depend upon whether he is ambitious enough to understand that his self-interest, and his glory, will be assured by his success in pursuing the public good.
I cannot but agree with Sheehan’s assertion “that the dismantling—the deconstruction, if you will—of the administrative state will require something akin to a Herculean effort and substantial reconfiguration of political alliances in America. The degree of boldness, courage, and sustained commitment this would necessitate—from political leaders and ordinary citizens alike—is hard to imagine, and even harder to believe will come to pass. It will depend, in the final analysis, on whether the spirit of “liberty for all” still sufficiently stirs in the hearts and animates the hopes of the American people. But, in the absence of a constitutional revival, Sheehan argues, “the rise of the administrative state means, ultimately, the slow and painful death of the American experiment in freedom and self-government”. In the final analysis, so, much depends upon the spirit of the people, as well as those who purport to lead them.