America has a problem, not because of our Constitution but because constitutionalism as a theoretical doctrine is no longer meaningful in our politics. A constitution is meaningful only if its principles, which authorize government, are understood to be permanent and unchangeable, in contrast to the statute laws made by government that alter with circumstances and changing political requirements of each generation. If a written constitution is to have any meaning, it must have a rational or theoretical ground that distinguishes it from government. When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or denied, the constitution can no longer impose limits on the power of government. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals. When that transformation occurred, as it did in the 20th century, the sovereignty of the people, established by the Constitution, was replaced by the sovereignty of government, understood in terms of the modern concept of the rational or administrative State. It was a theoretical doctrine, the philosophy of history, that effected this transformation and established the intellectual and moral foundations of progressive politics.
Established on the foundation of natural rights, constitutionalism has been steadily undermined by the acceptance of the new doctrine of History. The Progressive movement, which is the political instrument of that theoretical revolution, had as its fundamental purpose the destruction of the political and moral authority of the U.S. Constitution. Because of the success of the Progressive movement, contemporary American politics is animated by a political theory denying permanent principles of right derived from nature and reason. In exposing the theoretical roots of progressivism and the liberalism it has spawned, it is possible to reveal the difference between a constitutional government and the modern State. That difference, both theoretical and practical, becomes apparent in comparing constitutionalism as it was understood by the American Founders and Thomas Paine, and its transformation at the hands of the most successful Progressive politician of the 20th century, Franklin Roosevelt.
Constitutionalism: Two Views
Paine spoke for nearly all the founding Fathers when he wrote "a constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government." Paine said he had to deny what had "been thought a considerable advance towards establishing the principles of freedom...that government is a compact between those who govern and those who are governed." He knew that the defense of the sovereignty of the people and the protection of their individual rights required the firm establishment of the distinction between government and constitution, with the latter resting upon a social compact of the people themselves. "The fact therefore must be," he insisted, "that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government; and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist."
The social compact, therefore, must be understood in terms of a distinction between nature and convention. A constitution, unlike government, derives its authority from the laws of nature, or reason, which requires the protection of the natural rights of individuals as the chief purpose of government. It rests upon a political theory that established principles designed to serve that purpose. Consequently, it is possible to determine the powers and limitations of government precisely because its authority is derived from a more fundamental compact. A constitution, therefore, Paine noted,
is the body of elements...which contains the principles on which the government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the duration of parliaments...the powers which the executive part of the government shall have...and the principles on which it shall act, and by which it shall be bound.
Paine assumed that nature and reason, not government, established the ground from which those principles arose. The distinction between a constitution and government must rest upon the possibility of distinguishing nature from convention, reason from will (or passion), and natural (or fundamental) from positive law. The founders, like Paine, had been unwilling to risk the defense of human freedom and the rights of individuals by reaffirming the age-old corrupt bargain between the rulers and the ruled. Consequently, the American Founders had insisted that the social compact is of the people, themselves. It was not promulgated with the permission and consent of any actual governing body, but rested on the eternal laws of nature and reason. Only upon the foundation of natural right had it become possible to establish the rational authority of an enlightened people to institute government on its own behalf.
A written constitution, therefore, is an attempt to spell out the conditions of just and reasonable government. It separates the law made by government (i.e., by legislative majorities) from the fundamental law, made by the people to protect their natural rights. The laws of legislative majorities are legitimate only insofar as they are consistent with the principles laid down in the fundamental law. A written constitution viewed merely as positive law would be wholly unintelligible theoretically. But, in 1932, Franklin Roosevelt expressed a view, common among liberals, that the time had come to reinterpret the social contract in response to modern conditions. Animated by a progressive understanding of History, such a fundamental reappraisal was thought necessary because it was assumed that there could be no permanent principles of political right. In Roosevelt's creative interpretation, spelled out in his Commonwealth Club address in September 1932, he noted:
The Declaration of Independence discusses the problem of government in terms of a contract. Government is a relation of give and take, a contract, perforce, if we would follow the thinking out of which it grew. Under such a contract, rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the redefinition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon government and those who conduct government.
Roosevelt assumed and simply asserted that the compact is between government and the people. But that is contrary to both the theoretical and practical meaning of the original social compact. The principles of the Declaration of Independence, and the political theory of constitutionalism, rested upon the defense of individual natural rights as the best ground to ensure the sovereignty and safety of the people.
Indeed, what established the link between the principles of the Declaration of Independence and the political science of the Constitution is the notion of the people as sovereign, with government as the people's creation and servant. It was on this ground that Jefferson could justify the revolution against Britain; it had become "necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them." Therefore, it was with reference to the Laws of Nature that it had become possible to say on behalf of that people:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
This is not a compact of government with the people. It is the people who assign government its role, which is the protection of their individual rights; when it fails to do so, it must be altered or abolished.
Similarly, the Constitution begins by institutionalizing the authority of the people as the foundation of the compact: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." It is the people who established a constitution. It was the Constitution, or the compact of the people, that instituted and limited the power of government, by subordinating governmental institutions to the authority of a written constitution (and separating the powers of the branches of government).
In Roosevelt's reinterpretation, government or the State determines the conditions of the social compact, thereby not only diminishing the authority of the Constitution but undermining the sovereignty of the people. By suggesting that the people accord government power on the condition that they are given rights, the concept of social or group rights (and subsequently entitlements), becomes the moral foundation of government. The purpose of government is therefore linked to the satisfaction of needs, economic and social. Consequently, Roosevelt would insist that "the issue of government has always been whether individual men and women will have to serve some system of government or economics, or whether a system of government and economics exists to serve individual men and women." Understood in this way, the economic (and social) system must come under the control of government before it can serve the people. And government must, of necessity, become the arbiter of rights, both economic and political. The will of the people must be established by government before it can be put into effect by the technical expertise of its bureaucracy. At that point, politics must give way to administration. In Roosevelt's view, the moral authority of government had come to replace the moral authority of the people's compact, and the sovereignty of the State would come to replace the sovereignty of the people. By undermining the attachment of individuals to the constitutional order as the best defense of their rights, progressivism teaches them to believe that government is the only source and defender of their rights.
Will or Reason
America still has a written constitution, but it is nearly impossible, theoretically or politically, to comprehend the distinction between the government and the Constitution. Therefore, it is difficult to conceive of any rational limits on the power of government that can be derived from the Constitution. The theoretical foundations of social compact theory have been so undermined as to make constitutionalism obsolete as a political theory. The Progressives insisted that rights and freedom could not be understood as natural or individual, but social and dependent upon historical development. One important American Progressive thinker, Mary Parker Follett, who published The New State in 1918, outlined the new Progressive understanding of freedom and rights that is worth quoting at length for its clarity:
Democracy has meant to many natural rights, liberty and equality. The acceptance of the group principle defines for us in truer fashion those watchwords of the past. If my true self is the group-self, then my only rights are those which membership in a group gives me. The old idea of natural rights postulated the particularist individual; we know now that no such person exists. The group and the individual come into existence simultaneously: with this group-man appears group-rights. Thus man can have no rights apart from society or independent of society or against society. Particularist rights are ruled out as everything particularist is ruled out.... The truth of the whole matter is that our only concern with rights is not to protect them but to create them. Our efforts are to be bent not upon guarding the rights which Heaven has showered upon us, but in creating all the rights we shall ever have.... [As] the group process abolishes individual right, so it gives us a true definition of liberty. We have seen that the free man is he who actualizes the will of the whole. I have no liberty except as an essential member of a group...to obey the group which we have helped to make and of which we are an integral part is to be free because we are then obeying our self. Ideally the state is such a group.
Progressives were confident that the replacement of natural right (philosophy) by History would make it possible to establish the conditions for the replacement of politics and religion by an uncoerced rational society. Political life and religion must vanish to enable the perfecting of economic and social conditions through the establishment of the new social sciences, thereby opening up the possibility of complete freedom, or individual self-fulfillment. The coming into being of the rational or administrative State is possible, and necessary, only at the end of History, when the rule of the philosopher or statesman can be replaced by the rule of organized intelligence, or bureaucracy.
The American Founders had derived the moral law from the laws of nature, or metaphysical reason. Nature and reason had established the theoretical and moral foundation of individual rights. Thus, freedom was necessarily subordinate to the moral law; rational limits on individual freedom were imposed by nature itself, by the natural human desire for happiness. As a result, the mind, human intelligence, and happiness were thought to be the possession of individual human beings. In his criticism of the liberalism of the founders, John Dewey observed the problem posed by the doctrine of natural right:
The earlier liberals lacked historic sense.... It blinded the eyes of liberals to the fact that their own special interpretations of liberty, individuality and intelligence were themselves historically conditioned, and were relevant only to their own time. They put forward their ideas as immutable truths good at all times and places; they had no idea of historic relativity, either in general or in its application to themselves.
Dewey insisted that while earlier liberals recognized "the public function of free individual thought and speech," they persisted in "defending liberty of thought and expression as something inhering in individuals apart from and even in opposition to social claims." In Dewey's opinion, the new "liberalism has to assume the responsibility for making it clear that intelligence is a social asset and is clothed with a function as public as is its origin, in the concrete, in social cooperation."
In the new social and scientific understanding, freedom cannot be thought of in terms of natural or rational limits on human behavior. Nor can it be understood in terms of "immutable truths" as the foundation of individual intelligence, rights, or happiness; but only in terms of "historic relativity" and the progress of social intelligence. It is social mind, not human nature, that established and revealed social reality as historically conditioned. Therefore, it is the progress of social mind, or social intelligence, derived from the ongoing consciousness of its freedom, that must reveal and establish merely relative, or historic, but, nonetheless, scientific truth as well. In the 20th century, the new disciplines of the social sciences, the positivism that provided the scientific foundation for the study of law, would become the applied sciences of the rational or administrative state. These were founded on the historicist assumption that evolving consciousness of freedom, or will, would establish the intellectual and moral foundations of each historical epoch. As Roscoe Pound noted in his revealing theoretical work, An Introduction to the Philosophy of Law (1922): "The limitations on human activity" got their warrant from the inherent moral qualities of men which made it right for them to have certain things and do certain things. These were their natural rights and the law existed simply to protect and give effect to these rights. There was to be no restraint for any other purpose. Except as they were to be compelled to respect the rights of others, which the natural man or ideal man would do without compulsion as a matter of reason, men were to be left free. In the 19th century this mode of thought takes a metaphysical turn. The ultimate thing for juristic purposes is the individual consciousness. The social problem is to reconcile conflicting free wills of conscious individuals independently asserting their wills in the varying activities of life. The natural equality becomes equality in freedom of will. Kant rationalized the law in these terms as a system of principles or universal rules, to be applied to human action, whereby the free will of the actor may coexist along with the free will of everyone else. Hegel rationalized the law in these terms as a system of principles wherein and whereby the idea of liberty was realized in human experience.
Consequently, given the metaphysical turn after Kant and Hegel, the ground of political right, equality and liberty, must originate in freedom or will; not nature or reason. Once the Constitution came to be understood only in legal terms, and positivism established the foundation of law in legitimizing will, it became nearly impossible to make a rational defense of constitutionalism. As Harry V. Jaffa has written,
For what is most important about left- and right-wing jurisprudence today is not that they are of the right or of the left, but that they are "result oriented." Their so-called principles are not in their premises but in their conclusions. They differ in the particulars of their "value judgments," but not in the subjectivity of what they propose as the ground of constitutional law. Calling their subjective preferences "traditional morality" (or original intent), or "human dignity," does not make them less value judgments, or less subjective. But if the basis of law is believed to be subjective, then the basis of law is believed to be will not reason. The goal or perfection of the law, according to the whole tradition of western civilization, is that it should be, in Aristotle's words, "reason unaffected by desire." This is what law means according to the natural rights and natural law teaching of the Declaration of Independence. But law that rests upon nothing but "value judgments" is desire unaffected by reason.
In denying the authority of reason, law itself, in the service of will, came to be understood in terms of social reconstruction. When coupled with the method of positive science, the State and its government provide the possibility of the ongoing transformation of society and man
In 1914, Roscoe Pound, soon to be the influential dean of Harvard Law School, noted that law
in its insistence upon abstract equality and security for the maximum of individual self-assertion...took no account of the moral worth of the concrete individual. Hence an infusion of ideas from without has come to be necessary, as before, and such an infusion has been going on through the absorption of ideas developed in the social sciences.
Consequently, Pound insisted upon a
philosophy of law stated in terms of can, not in terms of can't. It calls for a legal science which constructs as well as observes, for a legal science that observes in order that it may construct. It calls for a definite, deliberate, juristic program as part of an intelligent social program, and expects that program to take account of the maximum of human demands and to strive to secure the maximum of human wants.
Pound insisted, therefore, that "the science of law is a science of social engineering having to do with that part of the whole field which may be achieved by the ordering of human relations through the action of politically organized society."
Pound was well aware that intelligent social action must depend upon the scientific method and the technical knowledge generated in the graduate universities and law schools, institutions supported by the State. The social sciences and the scientific understanding of law were meant to replace the authority of theology and metaphysics, the authority that had established foundations of constitutionalism. As the applied sciences of the State, the new sciences would provide the expertise necessary to carry out the will of the people. But for this to work, the people and their representatives would have to give up their reason so as to enable the social scientists to carry out their will. In short, they must give up the right to rule themselves.
Consolidating the Administrative State
America was among the last modern industrialized societies to rationalize politics by centralizing administration in the national government. It had become a great and powerful nation before it centralized administration in the national government. The consolidation of the administrative state was not the result of technological, or historical, necessity. It was an act of political will. The Constitution, its separation of powers, and the politics of federalism had inhibited Washington from achieving such centralization. The Progressive intellectuals had advanced the theoretical doctrine of the administrative state, and Roosevelt's New Deal attempted to expand and legitimize the administrative state. But, the administrative state was not institutionalized in any permanent way until the Great Society. When that task was accomplished politically, by the transformation of the central political branch of government, Congress, the constitutional separation of powers and the federal system were fundamentally altered.
At the beginning of the 20th century, the progressives looked to the presidency, through leadership of the political party, as the institutional means to overcome the constitutional separation of powers. Presidents of both parties had fought to aggrandize the administrative component of government, pushing Congress to expand the executive branch. Congress, representative of local interests and still tied to state power, was reluctant to do so. It remained a defender of decentralized administration. In 1965, Samuel Huntington noted that Congress could not function as a national institution because, administratively, it represented parochial and state interests. As a result, he insisted that the presidency had become the dominant force in American national politics. As Huntington observed, "today's ‘aggressive spirit' is clearly the executive branch." The loss of power by Congress, he suggested,
can be measured by the extent to which congressional assertion coincides with congressional obstruction. This paradox has been at the root of the "problem" of Congress since the early days of the New Deal. Vis-à-vis the Executive, Congress is an autonomous, legislative body. But apparently Congress can defend its autonomy only by refusing to legislate, and it can legislate only by surrendering its autonomy.... Congress can assert its power or it can pass laws; but it cannot do both.
Apparently, Huntington assumed that administrative centralization was necessary, and perhaps inevitable.
There was another option. Congress could adapt itself to the requirements of a centralized administrative state. But only if it gave up its power to refuse to legislate, which would require it to relinquish its primary function of deliberation, or public reasoning. Between 1968 and 1978, Congress passed more regulatory legislation in a decade than it had done in the whole prior history of the nation. It created new agencies, such as the Environmental Protection Agency, Occupational Safety and Health Administration, the Consumer Product Safety Commission, etc., to administer those laws. It required the wholesale delegation of lawmaking power to those newly created administrative and regulatory bodies, whose authority was dependent upon technical, or rational, knowledge. Congress could retain its autonomy as the central political body by establishing itself as the overseer of the executive branch and the regulatory bureaucracy. In the process, individual committees and members were empowered to oversee the various departments and independent agencies of the executive branch. They would soon become major players in the administrative policymaking process and would force the courts into the policymaking arena as well. Subsequently, Congress became, primarily, an administrative oversight body, which required greatly increasing its own technical staff. And, it established itself as the keystone of the Washington establishment.
Until the mid-1960s, the American regime was centrally governed, but it was still administratively decentralized. Congress concerned itself primarily with the broad and general interests of the nation, and it functioned as a deliberative and representative lawmaking body. Private or specialized interests were brokered in the economic marketplace, or administered at the state and local level of government. The general interests of government could be articulated and partisan compromises could be accommodated within the political branches. This was so because the administrative functions of the national government were few, as were the organized constituencies allied to those functions. After the centralization of administration, the operation and interests of the executive and the legislative branches were fundamentally transformed. The role of the parties was also diminished, because bureaucratic patronage would become more important than party patronage. In addition, the function of the judiciary had to be transformed. The bureaucracy has no constitutional authority, but it was given enormous power by the political branches. In the administrative state, the courts have been required to enter the policymaking process, as the final arbiters in the adjudication of cases arising in the administrative process. As a result, they have become fundamental players in the political and policy making process.
By 1975, the characteristic activity of the federal government—and the legislature—had become the regulation or the administration of the details of the social, political, and economic life of the nation. Such a development could only strengthen the organized interests and their ties to the legislature, at the expense of executive control of the details of administration. Even the most sympathetic observers of congressional power did not fail to notice the change. James Sundquist of the Brookings Institution noted then:
As members become managers of professional staffs, the chambers disintegrate as "deliberative bodies" in the traditional sense of legislators engaged in direct interchange of views leading to a group decision.... With each passing year, the House and Senate appear less as collective institutions and more as collections of institutions—individual member-staff groups organized as offices and subcommittees.
To the extent that Congress is still tempted to make laws, it does so primarily on behalf of the expansion of the administrative state. For example, Congress passed what appeared to be a general law concerning health care reform, the Obama Administration's Patient Protection and Affordable Care Act (Obamacare). But it is clear that this is not a law in the constitutional sense. It makes sense only within the context of an administrative State. The Health Reform Bill was more than 2,500 pages long. But, it was not a general law; rather, it established the legal requirements that would be necessary to ensure that the administrative apparatus would have the power to formulate the rules which would govern health care. As Charles Kesler wrote in this magazine ("The Tea Party Spirit," Winter 2009/10):
When our founders thought about law, they often thought along the lines of John Locke, who described law as a community's "settled standing rules, indifferent, and the same to all parties," emphasizing that to be legitimate a statute must be "received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies" between citizens.
As Kesler noted, you cannot "find any ‘settled, standing rules' or a meaning that is ‘indifferent, and the same to all parties.'" In fact, he suggests that is the point of such legislation:
They operate not by setting up fences to protect each man's liberty. They start not from equal rights but from equal (and often unequal) privileges, the favors or benefits that government may bestow on or withhold from its clients. The whole point is to empower government officials, usually unelected and unaccountable bureaucrats, to bless or curse your petitions as they see fit, guided, of course, by their expertness in a law so vast, so intricate, and so capricious that it could justify a hundred different outcomes in the same case.
As a result, Kesler insisted that
a government of equal laws turns into a regime of arbitrary privileges. A "privilege" is literally a private law. When law ceases to be a common "standard of right and wrong" and a "common measure to decide all controversies," then the rule of law ceases to be republican and becomes despotic. Freedom itself ceases to be a right and becomes a gift, or the fruit of a corrupt bargain, because in such degraded regimes those who are close to and connected with the ruling class have special privileges.
This extension of governmental power is compatible with the administrative state, but it cannot be understood to be within the letter or spirit of constitutional government.
The administrative state grew dramatically in the last third of the 20th century, and it continues to expand. But despite its expansion under both parties, it has not attained legitimacy within the American constitutional order. The Constitution, itself, remains the source of legitimacy for those in and out of government who are opposed to the administrative state. Until the administrative state becomes legitimized, or constitutionalism delegitimized, an ongoing debate within the parties, and the electorate, concerning the desirability of expansion, limitation, or diminution of the size and scope of the federal government is almost inevitable.
Many years ago, I attempted to indicate the reasons for the failure of the administrative state to gain legitimacy within a constitutional regime of separated powers. I observed:
In a constitutional system, the powers of government are thought to be limited; in the administrative state only resources are limited. In a constitutional regime, the most important political questions are those of principle or public right and how to achieve a common good (or justice); in the administrative state the most important questions revolve around money and finance (or entitlements). The constitutional system attempted to embody the principles of republican government into a structure of democratic institutions accountable to the people. Although the institutions were separated, and constituencies and perspectives differed, each branch participated in defining and pursuing the common good.
The administrative state has undermined the capacity of our institutions to pursue the public interest. Congress has delegated political authority to unaccountable knowledge elites in the bureaucracy shielded from the popular control that might be exercised through elections. It has forced the unelected branch of government, the courts, to enter the policy arena to determine the legality of administrative decisions made by agencies that have no constitutional authority. In legitimizing policies of the agencies, the unelected courts have protected the political branches from responsibility for policies that are derived almost exclusively from the administrative process. Even when these policies are deeply unpopular, the electorate has no access to the centers of power in the administrative state that make the policies.
In short, the administrative state reflects a concern with administrative detail rather than principle, rulemaking rather than lawmaking, and the attempt to placate every private interest, rather than the obligation to pursue a common good. In these ways, it subverts the aspiration for the fundamental ideal of government, that which makes human community possible, the desire for justice. As James Madison noted, "Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit." When justice ceases to be the end of government, the natural rights guaranteed by the Constitution, and liberty itself, become ever more precarious. Nonetheless, all is not well within the administrative state. It seems that all modern bureaucratic governments are faced with the paradox of being less able to govern, the more completely they try to administer the social and economic details of life in society.
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Jean M. Yarbrough, Bradley C.S. Watson, Michael M. Uhlmann, and Jeremy Rabkin discuss the CRB's Spring 2012 cover essays by John Marini and James W. Ceaser on the U.S. Constitution, with replies from Marini and Ceaser, in our online feature, Upon Further Review.