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Is the Anti-Administrativist Soul Divided Against Itself? 

Behind all the debates in administrative law—debates about structure, deference, and interpretation—is the fundamental question of man’s relationship to the state, the full picture of how Americans live and what they do. This is the question that motivates political theorist John Marini’s writing and thinking. His new collection of essays, Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century, reflects not only deep thought about American government but the accumulation of anecdote and wisdom that can edify the layman and the specialist alike.

Given the University of Nevada professor and Claremont Institute senior fellow’s deep respect and love for America, both its laws and its people, one can trust his motives and his small “d” democratic bonafides. As Paul Gottfried said in his review of this collection, it well describes “how our administrative behemoth has eaten into social, cultural, and commercial activities.” In fact I would make that even more pointed, and say that Marini lays out how particular social, cultural, and commercial activities are disfavored by a hostile bureaucracy that is, to a large degree, not ours at all. 

Marini shows that our political order is deeply sick, and he is adept at defining the symptoms.  Where he perhaps falls short, however, is in his theory of history. The essays hint at but do not provide a full picture of the properly functioning American civic body. Without this ideal, Marini is unable to render a complete diagnosis or a prescription for better health. Worse still, he might find himself allied with those essentially hostile to his inchoate vision of America. What exactly are the “social, cultural, and commercial activities” that are directed toward the common good, and that the administrative state undermines? And what therapy can get Americans back to these activities?

Correctly, I think, Marini assails the purported “neutrality” of the administrative state and the class of “experts” that supports it. The administrative state itself promotes a vision of how Americans ought to live. Yet in each essay there are abstract concepts that Marini seeks, ironically, to cast in neutral terms, and so these terms lack concreteness. The result, as I indicated, is a refusal, whether instinctual or deliberate, to provide his own picture of how Americans ought to live. The purportedly neutral terms he deploys might have normative purchase among the Claremont set, but they fail to engage either modern progressives or the undifferentiated mass of Americans who don’t reflect upon the Constitution but live it in their habits.

“Separation of powers” is one such term, as are “constitutionalism,” “rule of law,” “bureaucracy,” and “centralization.” If these terms have meaning it is not because they are second-order abstractions but because they are useful shorthand for a comprehensive description of how Americans—particular American men, women, and children—really live. This is not “constitutionalism” without borders; this is our constitutionalism. But by failing to make these terms sufficiently concrete, Marini remains ambivalent about whether the administrative state (and our American government writ large) can be reformed, or whether the Constitution’s delicate balance can ever be restored.  

This is Marini’s soul divided against itself, which is nowhere on fuller display than in the essay/chapter entitled, “Tocqueville’s Centralized Administration and the ‘New Despotism.’” Here we learn that the author’s target, the administrative state, is essentially synonymous with Alexis de Tocqueville’s “centralized administration,” which Marini and Tocqueville contrast with “government.” And the crux of the matter is not formal, not a matter of structure, but a difference in substance: Government is concerned with “general or public principles of the regime,” whereas administration is concerned with “the minute regulations of the private and particular details of social existence.”  

Our concern then, with the administrative state, is that it upsets this traditional, Anglo-American distinction between matters which are properly regulable public matters, and those which are properly private. Elsewhere in the book (“Theories of the Legislature: The Changing Character of the American Congress”), we get the explanation that Alexander Hamilton’s list of executive functions in Federalist 72 perhaps provides an exhaustive list of the properly public and governmental (foreign affairs, war, finance), and that Tocqueville again provides illumination, distinguishing the personal as “radically distinct” from the political. Again, these are hardly concrete terms, but formally what Marini thinks has occurred is that the properly private has been made public.

What we need is a rectification of names. Each American, each branch of government needs to properly understand its relation to each other and to the whole, and sovereignty must be properly located. The American public has become disconnected from the meaning attached to the words the Founders used, while still voting in elections and believing the system to be continuous. 

In short, ours is not merely a problem of the form of our government.

When the problem is put this way, one can immediately appreciate Marini’s revisionist account of the landslide reelection of President Nixon in 1972 in “Politics, Rhetoric, and Legitimacy: The Role of Bureaucracy in the Watergate Affair.” This chapter should be required reading for political science undergraduates. Marini concludes that Nixon’s removal by the elites was of urgent necessity to that class. As he suggests, what was driving the assaults on the 37th President was not the President’s “norm-breaking” (not genuine, abstract separation of powers concerns) but competing visions of the good and an entrenched elite who then used “rule of law,” “separation of powers,” and other such terms like clubs. 

The elite appeals to a general “rule of law” relied upon visions of the orderly small town of Mayberry. The elite appeals to “separation of powers” activated dopamine receptors in the American brain associated with the particular—parades and flags, the memory of “Camelot.” And these appeals were quickly followed by a demand: “If you truly love these things, you must stand with us and against the tyrant, Nixon.” We can see something similar with President Trump: What the elites object to is his platform, although his opponents will wring their hands about norms to obfuscate that fact, to give the public something to hang their hat on. The political question today is whether Americans will fall for this bait-and-switch, the weaponizing against themselves of their own formal commitments.

When government deviates from its well-worn wagon ruts of regulation and seeks to run roughshod over us—over our Constitution and the way we live—that situation can only be described as a regime change, and the new rulers must use all their tools in their effort to maintain democratic legitimacy. Describing these tools and expressing his first-order indignation in neutral, political theory terms represents the bulk of Marini’s analysis in Unmasking the Administrative State. Indeed, these essays are very much in line with American postwar conservative politics: an attempt to maintain a deracinated, urbane “American idea,” while fundamentally relying upon a thicker, place-orientated analysis that Marini sees as too Hegelian, but that gets the whole contraption moving.

In “Donald Trump and the American Crisis,” for example, he notes: “Bureaucratic rule has become so pervasive that it is no longer clear that government is legitimized by the consent of the governed.” Further, “the administrative state has fragmented, isolated, and infantilized the people by undermining or destroying the institutions of civil society. In these terms, the success of Trump’s campaign will depend upon the American people’s ability to still recognize the existence of a common or public good.”

To translate this, again, into concrete terms: The machinery of government is entirely controlled by particular people, who use it to dismantle the traditional modes of life of other particular people, and our elections no longer have any bearing on this phenomenon. The “success of Trump’s campaign” as a political revolution depends on Americans’ recognizing this machinery (including complicit business people and members of Congress) as a hostile force and resisting it up and down the chain, outside (or in addition to) the mere electoral context. Enforcing the particular in this way—rather than through periodic, cathartic elections limited to shallow “issues” and driven by hyperbole—is authentic, manly politics of the sort Marini lauds.

This is my read, at any rate, of where he wants to go. But again, the exposition is clothed in all the pomp of Harry Jaffa, relying upon an abstract vision of Americanism to justify something the intended audience presumably already lives and believes. In that sense, even as contemporary conservatism remains bereft of the conceptual tools it needs to mount a compelling critique of the administrative state, there is still value in books like Marini’s, which edify the faithful.  

The critique contained in these essays might be said to be most interesting if shorn of its abstract language. Marini is, let us say, unmasking not “the” administrative state, but the administrative state we have today. This particular administrative state pays lip service to all the constitutional forms while deviating substantially from what the body politic wants and, presumably, from what the Founders envisaged. There is a class of rulers, and a class of the ruled; which side you fall on is not so much a matter of abstract theory as a matter of birth. 

Yet John Marini, a fine thinker and scholar bound by postwar conservative discourse, stands before Pharaoh without quite being able to bring himself to say “Let my people go.” I guess we’ll have to make do with the demand to “Restore constitutional government.”

Reader Discussion

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on July 11, 2019 at 08:10:48 am

Prepare for the hive to respond. “But again, the exposition is clothed in all the pomp of Harry Jaffa, relying upon an abstract vision of Americanism to justify something the intended audience presumably already lives and believes. In that sense, ”

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Mark Pulliam
on July 11, 2019 at 16:18:07 pm

Perhaps Kloster ought to familiarize himself with Tocqueville's excellent history of the Ancien Regime and its predictable demise. The parallels between that regime, with it bloated, corrupt and inordinately intrusive Legions of Administrators mirrors (almost) precisely the rot and bloat which we as observant citizens detect in Washington, DC (and in the States as well).

If Kloster wants to know what "nuetral" policies work against a cohesive citizenry and economy, one that is more directly concerned with providing NOT JUST CHEAP CONSUMER GOODS -BUT- a livable wage / employment to our fellow citizens, perhaps he may want to learn a tad bit about financial markets, which supported by current tax codes, enable major employers to offshore labor, hide profits across borders, enable corporations to create barriers to entry BY ALIGNING with regulatory agencies to impose added costs to industry, such costs being more than can be borne by small, newer entrants.
Or perhaps, he could consider how financial markets are permitted to invest monies in "start-up" cycle of development and still claim tax advantage BUT these same financiers will not invest monies in the manufacturing phase of new product introduction. Perhaps, a more "directed" tax policy, one that provided special incentives to those financing "manufacturing" or post "start-up operations would be helpful. BUT NO, Kloster WANTS *neutral* policies - even if to continue in this vein results in distortions in the financial markets.

What does Kloster not observe? Can he not see that almost every single facet of life is now under the control or the influence of our "genius" Administrators. It is quite obvious that these regulators are Brilliant. After all, only the most highly developed and insightful mind could possibly ebvision the need for almost 5,000 different regulations concerning the growing of APPLES in Upstate New York. The poor semi-literate common man simply lackls the peculiarly educated mind so attuned to the need for regulating what has been around since Adam and Eve - bloody apples - they don;t require vast libraries of codes and information to be grown and enjoyed; even if the pleasure from such activity will get you cast out of Klosters DC *paradise*.

Silly ass essay!

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gabe
on July 11, 2019 at 18:05:56 pm

The critique contained in these essays might be said to be most interesting if shorn of its abstract language.

You can say that again--and, in this abstract essay, Kloster has.

So let's be concrete: Is the author saying that government has no role in, say, civil rights, and thus the 1964 Civil Rights Act--and the rest of the Great Society legislation--should be repealed? And if that's not the point, then what?

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nobody.really
on July 11, 2019 at 18:48:31 pm

Well, I don't know about *abstract* language (after all, it is TOO *abstract* for me) but his silliness about *neutral* is bunkum.

https://www.hoover.org/research/trumps-deregulatory-successes

Herein we see some of The Trumpsters de-regulation successes and while observing we may infer that many of these allegedly neutral regs are anything but neutral in effect.

Note the third from the last paragraph beginning with "One way that governments raise costs and hurt competition", something I mentioned in my previous irritated post.

Neutral, shmoo-tral! The nexus between large globalist corporations and the FedAdmin state is both extensive and mutually reinforcing (and profitable in many instances)

But Marini is less concerned with the economic impacts / effects of regulation than he is concerned with the debilitating / vitiating effects upon the citizenry of "Rule by Experts."
Again, to any that may be interested, I recommend Tocqueville's "Ancien Regime" to glimpse what we, embedded as we are in the "Law of (administrative) Rules", are unable to readily discern - the epistemological change attendant upon submission to governance by *expert* Regulators.

(BTW: I do not subscribe to the libertarian fantasy of no rules - nor does Marini or the "Claremonsters" with which I am familiar).

BTW 2: Nobody: another recommendation for you. See Atkinson and Lind's essay in current issue of American Affairs Journal. I suspect you may like it - a right proper mix of gubmint intervention and market dynamics is recommended by these characters.

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gabe
on July 13, 2019 at 17:51:55 pm

". . . the undifferentiated mass of Americans who don’t reflect upon the Constitution but live it in their habits."

"The American public has become disconnected from the meaning attached to the words the Founders used, while still voting in elections and believing the system to be continuous."

"The political question today is whether Americans will fall for this bait-and-switch, the weaponizing against themselves of their own formal commitments."

"But again, the exposition is clothed in all the pomp of Harry Jaffa, relying upon an abstract vision of Americanism to justify something the intended audience presumably already lives and believes."

Who are "the Americans" to whom the above passages refer? Does anyone believe that this sort of language describes a significant block of the electorate? That people despise the elites (who despised them first), stand up for the national anthem and vote for Trump does not necessarily mean that they have any meaningful commitment to the principles of the founding or somehow "live [the Constitution] in their habits" (whatever that means). Certainly, Trump himself does not care about the principles of the founding except insofar as they can be reduced to slogans to attract votes (which is not itself a reason not to vote for him, given the alternative).

I would suggest that the rise of an administrative state something like the one we have now was inevitable under the conditions that have resulted from the multiple economic, financial and technological transformations that have occurred since the founding, and the problem we have is that the class that operates the administrative state (as well as the other powerful institutions of our society) has developed an irrational hostility to the largest segment of the country's population, namely, working class and lower middle class white people, as well as to those who adhere to traditional standards of personal morality in sexuality and reproduction. This is not a problem that can be blamed on Woodrow Wilson or on some wrongheaded Supreme Court decision of 80 years ago.

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djf
on July 13, 2019 at 18:14:43 pm

I should acknowledge that Mr. Kloster seems to hint at some of the points I make above, but I feel that the points should be made more sharply.

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djf

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.