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We the Bureaucrats: Entrenching Left-Liberal Power Centers

When most people focus on the program of left-liberal constitutionalism, they naturally think of the expansion of unenumerated rights, from the right of abortion to same-sex marriage.  But in my view the more important part of their current project is structural—to create centers of constitutionally protected power naturally inhabited by left-liberals and thus resistant to the vagaries of electoral control.

One example is campaign finance jurisprudence. The press has obvious influence on elections with its ability for agenda setting and framing. And the press is overwhelming left-liberal. One important check on that power is the ability of outside groups to raise money and buy advertising at election time. One might naively believe that these groups had the same free speech rights as the institutional press, but the entire thrust of left-liberal campaign jurisprudence is to provide constitutional protection to legislation that gives different rights to the press and citizens.  Accordingly, this jurisprudence would protect a structure where an important left-liberal sector does not have as many competitors to its influence on an essential part of republican government–elections.

Another example is “diversity” jurisprudence. Here the left-liberal position is to allow universities maximum discretion to discriminate in favor of ethnic minorities and women in admissions and faculty hiring. Universities are another center of left-liberal power, and diversity practices further entrench that power in two ways. First, faculty who are hired on the basis of diversity policy are on average even farther to the left than the typical faculty member. Second, race and gender consciousness on campus generates greater demand for other leftist programs like more support for race and gender study departments and also sustains an even more perfervid opposition to giving a hearing to ideas on the right.   Lest one think it is too cynical to believe that one purpose of “diversity jurisprudence” is to make universities less ideologically diverse, remember that in the Grutter case, university administrators openly said that the Cuban-Americans should not benefit from diversity because they were conservative.

The latest manifestation of this kind of jurisprudence is the new and vigorous defense of the administrative state and the civil service. Bureaucrats, like journalists, lean left—even farther left the median Democrat. Thus, it is not surprising that recently left-liberal scholars have been doubling down on defenses of the administrative state, arguing, for instance, against the constitutionality of the REINS Act that allows Congress the ability to block administrative rules.

One way to raise this policy position to one of constitutional significance is to observe that the administrative state provides an important check on the executive. But given the leanings of the civil service that check is much stronger on Republican administrations. Hence, for instance, the Justice Department cannot rely on ordinary attorneys in the Civil Rights Division to investigate Harvard’s alleged discrimination against Asians.

The fall Foreword essay in the Harvard Law Review even takes the position that the Constitution’s Take Care Clause may actually require a civil service in order to help the President carry out his constitutional responsibilities in a manner that protects institutional continuity. Professor Gillian Metzger, the article’s author, does not consider the possibility that the real way to allow the President to make sure that his view of the law is carried out is eliminating independent agencies and stocking agencies with more political appointees who share his views. That would be a way of making the President a more effective steward of the executive branch in both Republican and Democratic administrations.  But providing a constitutional status to bureaucrats instead of political appointees, like empowering journalists instead of citizens, creates institutional pressure to move the nation leftward.

Reader Discussion

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on December 05, 2017 at 10:13:44 am

Can you keep a straight face while writing this article? I ask you to reference the “vagaries of electoral control” in light of Republican’s efforts at Voter Suppression and Gerrymandering!

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Roberto Melendez
on December 05, 2017 at 10:37:20 am

Hey, what is a little voter suppression when you can have *voter enhancement" by the Dopey Dems who have seen fit to encourage . enable those who are otherwise not entitled to vote to participate.

https://www.youtube.com/watch?v=rrBxZGWCdgs

wherein the *horrendous* voter suppression of the GOP is *exposed.

Actually, what is exposed is the "racism of reduced expectations" practiced by white liberals.

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gabe
on December 05, 2017 at 11:24:41 am

Yours is an interesting theory (or is it just an idea?) that systematic efforts (of the Left) to enhance and extend the legal protections accorded institutions/forces currently under the Left's control a) promote the careers of Leftist power holders, b) insulate (immunize?) Leftist ideology and c) thereby entrench and perpetuate Leftist rule, as are illustrated in the cases of 1) oppressive campaign finance laws (McCain Feingold), 2) intrusive affirmative action/diversity laws and policies (Sandra Day O'Connor's "25 years" in answer to the question from the back seat, "Are we there yet?") and 3) the largely unbridled delegations of authority and deference granted administrative agencies (part of the "Deep State",) all of which efforts are strongly supported by the Left. I would add to your thoughtful examples 4) the abuse of the First Amendment so as to immunize from both criminal law and defamation and thereby specially privilege the incumbent Leftist media, 5) the abuse of the First and Fourteenth Amendments to empower the incumbent arch enemies of cultural tradition (see e.g., Blackmun in Roe v Wade and Kennedy in Casey and Obergefell, et al ad nauseam,) and 6) the delegation of quasi-sovereign immunity to large universities thereby insulating the Leftists who run them from public responsibility and empowering them with police-state control over their students.

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timothy
on December 05, 2017 at 17:33:45 pm

Prof. McGinnis,

I emphatically agree with this post, but I have this question - why do you (like many other conservative, classical liberal and libertarian writers) persist in using the word "liberal" to describe contemporary progressives? At this late date, I think it is clear that the Left has long since abandoned any concern with liberty (at any rate, the liberty to do anything one does while wearing clothes). Equality, not liberty, is their lodestar. To call progressives "liberals" is a needless concession to them. (Actually, calling them "progressives" is also an unwarranted concession, but that's another story.)

I suppose you could justify this use of "liberal" based on the word's use as a synonym for "generous," but that was not the original meaning of "liberal" as a political term. Perhaps this ambiguity enabled the Left to appropriate the term "liberal" for itself a century or so ago.

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djf
on December 05, 2017 at 18:51:30 pm

Yes! And how the Hell did the Left get copyright to "blue'' and brand Republicans as "red" states?

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timothy
on December 05, 2017 at 19:35:55 pm

I completely agree - this idiotic "red/blue" thing goes back only to the 2000 election, as I recall, when it was dreamed up by some leftwing hack. The meme is jarring to those (well, at least to me) who know that "red" is the color traditionally associated with socialism and Marxism (e.g., the old rightwing slogan, "Better dead than red"). But at this point, you have to be about 40 to remember a time before the current "red/blue" dichotomy was imposed by the media (and accepted with little protest by the right), and I've given up pointing out the incongruity of it.

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djf
on December 05, 2017 at 19:50:55 pm

Absotively!

But what is the point of arguing with the dolts, anyway?

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gabe
on December 06, 2017 at 04:59:50 am

I couldn't keep a straight face when I read your comment.

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H.G. OrWells
on December 09, 2017 at 11:38:45 am

The legal positive discrimination, for example, creates inequalities, the opposite effect pursued by the international leftist timetable. Its true objective is change the classical liberal view of the rule of law establishing a new jurisprudence that favours -by coercive force against "some" citizens- the rights of some individuals that they named "minorities". The bureaucratism of positive legal discrimination also generates conflicts in society, because the discrimination of other is assumed by others individuals who are not agree with these policies. The leftist politics, which have not anything of Liberal, will say that they are in condition to solve these conflicts and to fight these "sign of intolerance" that really means everyone must accept this neototalitarianist policies without exercise their liberty of speech for criticize them.

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Roque Lopez

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