The United States federal courts exercise vast discretionary authority from a position of almost complete independence. The debates triggered by the two recent Supreme Court nominations underscore this truth. High on the list of reasons why elections matter is that the people can influence the courts only by selecting the president who will nominate judges, and the senators who will confirm them.
The courts have the final say over hot-button political issues like abortion and the death penalty. But almost as important is the large discretion with which bureaucratic agencies operate today. The Environmental Protection Agency, for example, influences the day-to-day meaning of property rights, the Food and Drug Administration decides on the legality of the "morning-after" or abortion pill, and the Federal Election Commission tells us what, concretely, free speech means. Politicians who must face the voters in even-numbered years are often more than willing to let life-tenured judges and bureaucrats make hard decisions about such controversial issues.
It's clear that the original design of our Constitution did not allow for essentially legislative authority to be exercised by officials who are not elected legislators. As CRB readers know better than most Americans, the Progressive movement played the decisive role in the long journey from the Founders' Constitution to the modern American state. Woodrow Wilson, Theodore Roosevelt, Herbert Croly, and John Dewey argued explicitly and energetically that the Constitution was outdated. These Progressive leaders and their allies were the first to reject the Constitution's core principles in favor of modern, big-government liberalism.
When considering, more particularly, the courts' and the bureaucracy's positions of authority in today's liberal state, we ought to look carefully at a Progressive who gets much less attention: Frank J. Goodnow. Transaction Publishers' new edition of Goodnow's Politics and Administration provides valuable insights into the origins of modern liberalism.
Goodnow was the founding president of the American Political Science Association, and helped launch not only political science as an academic discipline but also administrative law and public administration. He was a student of John Burgess, whose political conservatism he did not share; Burgess brought him to Columbia after Goodnow had spent time studying in France and Germany. Although he later went on to serve 15 years as president of Johns Hopkins University, it was at Columbia that Goodnow produced most of his work, including Politics and Administration (1900).
An early advocate of big government, Goodnow understood that the greatest obstacle to it was the Constitution of the United States—especially the separation of powers—and the principles of the Declaration of Independence upon which the Constitution rests. Politics and Administration provided a new vision for America's governing institutions and the arrangement of national power. In subsequent works, such as Social Reform and the Constitution (1911) and The American Conception of Liberty and Government (1916), Goodnow showed how this new vision arose from a critique of the bedrock ideas of American government. He complained about the "reverence" Americans had for their founding, which he regarded as "superstitious" and an obstacle to genuine political reform. In particular, he held that the focus on government's permanent duty to protect individual natural rights had impeded the marked expansion of governmental power that Progressives desired. He objected that the founders' principles were "permeated by the theories of social compact and natural right," which he regarded as "worse than useless" since they "retard development."
A main problem was that Americans believed their rights "unalienable," to use the Declaration's term—i.e., they cannot be defined or taken away by government. This made it difficult for Progressives to put the government in charge of private property, and so Goodnow argued for a positive understanding of rights as granted by government itself:
The rights which [an individual] possesses are...conferred upon him, not by his Creator, but rather by the society to which he belongs. What they are is to be determined by the legislative authority in view of the needs of that society. Social expediency, rather than natural right, is thus to determine the sphere of individual freedom of action.
Such a view of rights would open the door for a new arrangement of national power that would not be so confined by the concern for individual liberty. By suggesting such a new dispensation, Goodnow helped to found today's judicial and bureaucratic regimes.
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In Politics and Administration, Goodnow criticized the constitutional separation of powers between the legislative, executive, and judicial branches, and suggested instead a two-part division, between politics and administration. The traditional system, he argued, interfered with the national government's efficient operation and kept it limited in scope. His system, by contrast, would free up administration from political interference, allowing administrators wide discretion to regulate the complex modern economy without interference from politicians. Politics, he contended, was "polluted" and full of "bias," whereas administration was all about the pursuit of "truth." He was among the first to join Woodrow Wilson in calling for a powerful central bureaucracy, insulated from political control and equipped with expert authority to enact and enforce regulations.
What does this have to do with the courts today? Goodnow considered courts to be part of the administrative machinery, which distinguished his argument from many other Progressives' and makes it highly relevant to the politics of the 21st century. Administration, he claimed, involves both the "administration of government" (by agencies) and the "administration of justice" (by courts). Administration—made up of agencies and courts—is modern government's focus and the primary means by which Progressivism would be realigned, free from the impeding forms of the Constitution. As he wrote in Comparative Administrative Law (1893), the book that first drew attention to him, "the great problems of modern public law are almost exclusively administrative in character. While the age that has passed was one of constitutional, the present age is one of administrative reform."
Even though "administrative" courts and agencies are insulated from political control, Goodnow insisted that they should not be confined merely to implementing policies determined by the people's elected representatives: in interpreting the law, courts and agencies would share in its making. Courts, especially, would not simply be an umpire. Goodnow wanted the courts to be involved in pitching and batting as well. Thus he called for unelected judges who would make law through constitutional interpretation, and unelected bureaucrats who would make policy after congressional delegation to them of legislative powers.
In bringing Goodnow's long out-of-print book to us, Transaction performs a great service—a service that it has repeated with several vital Progressive-era works such as Wilson's Congressional Government and Constitutional Government in the United States, Croly's Progressive Democracy, and Walter Weyl's The New Democracy, to name a few. Other important works are expected in the near future, including The Stakes of Diplomacy by Walter Lippmann and The Business of the Supreme Court by Felix Frankfurter and James Landis. These reprints come with useful new introductions; Sidney A. Pearson's for Constitutional Government and Progressive Democracy are especially worth reading.
John A. Rohr's introduction to Politics and Administration is also quite good. Rohr capably identifies the philosophical inspiration behind Goodnow's assault on the separation of powers: the German philosopher Hegel. "Because of its grounding in the principle of separation of powers," Rohr explains, "the Constitution of the United States would present difficulties for any unity-seeking Hegelian. Goodnow was no exception." This clear-sighted observation is welcome from a writer who has made questionable arguments for the constitutionality of the administrative state. But readers can certainly benefit from Rohr's analysis of Goodnow, and especially from the renewed availability of Politics and Administration, truly a landmark work in our constitutional decline.