Forget about venerating the fake Constitution taught in elite law schools, and remember to venerate the Constitution of the founders’ philosophy.
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.”