Boston Review September 21, 2015
Nineteenth-century America was a place full of hazards. Disease, political oppression, imperialist warfare, poor living conditions, and hard manual labor took their toll, as they still do. But some dangers were peculiar to the era—among them, exploding steamboats.
Between 1825 and 1830, 273 people died in such accidents. DeBow’s Review (1848) noted 233 cases of “bursting boilers,” “collapsing flues,” and other breakdowns, which could cause massive damage. In his 1833 State of the Union address, President Andrew Jackson noted the “many distressing accidents which have of late occurred . . . . by the use of steam power.” But he didn’t simply mourn, instead arguing that the problem demanded “the immediate and unremitting attention of the constituted authorities of the country.” He sought criminal penalties to prevent what he saw as the negligence of carriers.
But the problem was so severe that Congress eventually decided tackle it administratively. Criminalizing bad behavior wasn’t enough; for the good of individual lives and the larger economy, the government would take positive steps to prevent explosions. Under the Steamboat Act of 1852, Congress mandated standards for boiler pressure and testing. Pilots and engineers would be federally licensed. And government inspectors could enforce these rules.
This “steamboat agency” seems like something straight out of the twentieth century. It relied on the Constitution’s commerce clause to regulate a specific industry for personal safety. It developed these regulations based on scientific understanding. And it combined licensing, rule making, and adjudication, as the New Deal and Great Society agencies did and continue to do. It was, in sum, an early manifestation of an administrative state that contemporary conservatives insist did not exist until Progressive Era reformers built it upon the ashes of a former libertarian utopia.
By the administrative state, I mean the network of agencies created by Congress to carry out the work of the federal government. These agencies differ in the structure of their supervision, their sources of funding, and their ability to write and enforce rules, but collectively they have similar mandates: to carry out laws that Congress and the judiciary lack the time and expertise to implement on their own.
To some observers, this situation is fundamentally at loggerheads with the Constitution. The problem isn’t this or that agency; it is the administrative state itself, an alien import from European collectivism, which destroyed the laissez-faire liberty Americans supposedly enjoyed in the nineteenth century. Today, opposition to the administrative state unites everyone from George Will, who says the Affordable Care Act “serves principally to expand the administrative state’s unfettered discretion,” to Supreme Court Justice Clarence Thomas, who sees the administrative state as evidence of a “belief that bureaucrats might more effectively govern the country than the American people,” to Senator Mike Lee, Glenn Beck, and the Tea Party broadly.
But a new wave of legal history is overturning the narrative of paradise lost. In Jerry Mashaw’s Creating The Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012), we see that the early U.S. government was both far more bureaucratic and expansive than partisans of deregulation assert. And Daniel Ernst, in Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940(2014), attacks the alien-import thesis, arguing that modern American regulatory agencies were justified by domestic legal norms.
Indeed, this scholarship does more than just show how far back the administrative state goes in American history. It shows that the practices and institutions of bureaucrats have not assaulted our Constitutional liberties but rather have helped define and expand our very notion of liberty. This emergent school of thought, known as “administrative constitutionalism,” documents how our institutions, in their everyday dealings with the public, provide the basis for the liberties courts end up adopting and ratifying.
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Most academic discussion of the U.S. administrative state starts with the creation of the Interstate Commerce Commission of 1887, followed by a major ramp-up in the early twentieth century. This leaves a hundred years in which to fill in the blanks.
But, Mashaw argues, “We should rid ourselves of the nostalgic idea that the emergence of administrative governance in the twentieth century upset the grand design of a non-administrative state.” There “simply never was a time” in which federal law was “self-executing, fully specified by Congress, and enforced through judicial decree.” Mashaw digs up a deep and fascinating world of administrative practices that, from the beginning, were intended to solve the urgent problems Congress and the courts could not by themselves.
Take the settlement of the West. The surveying, sale, and settlement of the new public lands was the largest administrative challenge facing the early federal government. People moving westward, especially after the Louisiana Purchase, didn’t form the bargaining, enclosing paradise of libertarian lore. Settlements involved endless fighting in courts over who owned what under a mix of state, federal, and international law. Courts were ill equipped to handle these cases and quickly buckled under the endless, costly claims, some of which would take decades to negotiate. The time and energy absorbed by the legal process slowed the work of making new land available for settlement. Dysfunction fed back on dysfunction, with lawsuits provoking further lawsuits and uncertainty.
U.S. government bureaucracy helped to define and expand American notions of liberty.
In order to deal with this chaotic situation, Congress created the General Land Office in 1812. It was not without controversy of the sort we might recognize today: during the republican era, Congress wanted to explicitly control every aspect of policy. But rules drafted in Washington D.C., no matter how meticulous, required expert implementation on the ground. The process of surveying, recording, and selling land had to be subject to uniform rules, but the land itself was not uniform, and the rules weren’t easy to apply. Congressional strictures originally prevented Land Office administrators from correcting record-keeping errors resulting from the disconnect between the law and facts on the ground. Eventually, though, Congress realized the need to tolerate some administrative discretion. So, for example, while the law required planting trees to demarcate townships, where trees could not be planted, administrators might fix stones. Land Office agents, newly empowered to make at least some decisions, filed reports with Congress to ensure accountability.
Mashaw extends a project of finding the state in the nineteenth century, which historians have undertaken since the 1990s. Books such as William J. Novak’s The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996) have documented the extensive state regulation of behavior that characterized the time period. Mashaw shows that the government not only regulated through law, but also expanded its capacity to enforce those laws by means of the administrative state.
But even if the administrative state is older than some realize, what should we make of the still-important changes that befell it in the early twentieth century? Here Ernst, in Tocqueville’s Nightmare, offers a compelling mix of history and legal thought, as politicians, lawyers, and bureaucrats try to find a way to balance public needs under administrative purview against judicial accountability.
Ernst’s title is ironic. Alexis de Tocqueville’s nightmare, in Ernst’s telling, was that a “centralized administration” would take hold in the United States. Local municipal bodies, townships, and counties form a shield against federal power. But, Tocqueville wrote, if a federal bureaucratic state ever “sunk deep into the habits and the laws of the people . . . a more insufferable despotism would prevail than any which now exists.”
A century later we had the formal bureaucratic state Tocqueville warned about. Yet ours was still a liberal democracy, with no despotism in sight. What happened?
Ernst argues that the Constitution survived the construction of the administrative state because the courts built judicial values and process into the DNA of the new government agencies. The norms of due process and evidence would give “a distinctly legalistic cast to the administrative state.” Evidently, “Americans decided they could avoid Tocqueville’s nightmare if administration approximated the structure, procedures, and logic of the judiciary.”
Specifically, the administrative apparatus approximated the structure, procedures, and logic of the American judiciary, not a foreign import. While some historians claim a Progressive embrace of European social insurance, city planning, and market regulation, Ernst points out that the German ideal of the Rechtsstaat—a state with only strict, clearly demarcated rules—was advanced in the United States but found little traction.
Instead, the Supreme Court, led in this effort by Justice Charles Evans Hughes, built over the course of decades a theory whereby it could “see” what administrators did if their actions were justified in a purely legalistic way. As long as administrators observed due process and made their decisions based on well-established facts, courts would defer to their actions rather than find that administrators had been making laws themselves.
This focus on Hughes as hero allows Ernst a particular reading of the tension between the Roosevelt administration and the Supreme Court during the New Deal, a critical moment in the history of the administrative state and in the contest over that history. The right sees the New Deal as a clear instance of executive overreach in which the White House cowed a reluctant Court into doing its bidding. But Ernst tells a different story, in which the Court gradually brought administrative law into line with American jurisprudence.
At first the Court was hostile to the New Deal, striking down the National Industrial Recovery Act. But NIRA’s administrative character wasn’t at odds with the Constitution. The problem was a lack of set procedures, and its goals were unclear, meaning that administrators would be left to operate at their discretion. According to Ernst, Hughes, with his opinion in the case eliminating NIRA, was “teaching the New Dealers the first principles of administrative law and procedure.” When the Supreme Court finally began approving New Deal legislation in 1937, it was “less a revolution than a reconciliation between the judicial and executive branches.”
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The administrative state was not only built on the basis of American legal norms, but it also helped to create them, and, in the process, American conceptions of liberty itself. What sort of bureaucracy could do that? One of the strongest examples is also one of the most prosaic: the Post Office.
The Post Office was, at one time, a massive federal state-building enterprise. Spanning and keeping pace with a rapidly expanding frontier, the Post Office was one of the most impressive features of the early state. But not just that. As legal scholar Anuj Desai argues, it is also via the Post Office that our notion of privacy gained shape.
We take for granted that the Fourth Amendment protects the privacy of communications, such as our email. But where does that come from? Most look to wiretapping cases of the 1960s, which took their precedent from Justice Louis Brandeis’s notion of a right to privacy. However, Desai contends that communication privacy really began with everyday bureaucratic practices at the Post Office. In the 1780s and ’90s, the Post Office consciously prevented government agents from opening the mail without a government warrant, which itself was a reaction to activities of the British government during the Revolutionary War. The Supreme Court eventually incorporated these practices into law in the 1878 case Ex parte Jackson, when it protected communications privacy under the Fourth Amendment.
Privacy protection emerged from the early Post Office’s resistance to government snooping.
This is not how we usually understand the development of our constitutional liberties. Instead of judges abstractly thinking through the Fourth Amendment and its implications, normative commitments evolving from bureaucrats’ daily routines came to define a constitutional right to privacy.
Modern free speech, too, is an outgrowth of the administrative state, in this case the Progressive variety. Historians have long believed that Progressive intellectuals, normally skeptical of individual rights and interested in muscular state-building, came to defend civil liberties only after the repression of dissent during World War I compelled them to place new limits on the state. But as legal scholar Jeremy Kessler has argued, Progressives first turned to civil libertarianism in order to bolster the state, not to limit it. Working as bureaucrats in the Wilson administration during World War I, they created a conscientious objector exemption from the draft, much to the anger of Congress and the military. But those in charge of executing the draft, including future Supreme Court Justice Felix Frankfurter, saw it as essential that the state make room for draftees to express their moral and political opposition to military duty and to perform alternative forms of national service.
Supreme Court Justice Oliver Wendell Holmes was close with Frankfurter and his circle, which influenced the famous defense of free speech he articulated in dissent to Abrams v. United States (1919). This defense, which emphasized the way free speech for the government’s political opponents could improve public policy and foster democratic participation, was a judicial embodiment of earlier, administrative efforts to accommodate antiwar citizens.
This is an example of what legal theorists call administrative constitutionalism, which, again, reverses the conventional wisdom according to which constitutional norms are created from on high. As William N. Eskridge Jr. and John Ferejohn explain in A Republic of Statutes: The New American Constitution (2010), our “normative commitments are announced and entrenched not through a process of Constitutional amendments or Supreme Court pronouncements but instead through the more gradual process of legislation, administrative implementation, public feedback, and legislative reaffirmation and elaboration.”
The authors focus on small-c constitutional norms, or what they call superstatutes. These norms start with social movements and economic problems that create demands for state action, resulting in public and legislative deliberation and eventually laws. Implementation elicits responses and opposition from the public and the courts, is revised and elaborated with feedback, and finally turns into a norm, be it privacy or free speech, which may not be entirely encompassed in the direct language of the Constitution. The administrative practices of the state, built through everyday democracy, push just as much on the courts as the courts push on democracy.
These efforts to craft new norms create conflicts, which administrators balance alongside legislators and the courts. Consider the National Labor Relations Board (NLRB), which, as legal scholar Sophia Z. Lee demonstrates in The Workplace Constitution from the New Deal to the New Right (2014), found its postwar goals in contradiction. The NLRB was committed to allowing workers to organize. But it also was committed to ending segregation, including within unions, which ran counter to the objective of maximal unionization. Eventually the courts took over this battle, largely limiting workers’ rights. Whether the courts made the right calls in these cases is not so important in this context. What is important is that negotiations within the administrative state, themselves responsive to public demands, inspired the elaboration of new norms, which then became the subject of constitutional debate. Only by incorporating this realm of the administrative constitution into our debates over history and politics can we get a full picture of how the law really works.
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The recent scholarship on the administrative state provides a wealth of arguments to counter the right’s historical and legal theories. Americans have long turned to bureaucracy to solve problems and to advance liberty.
But the historical presence of an administrative state based in and expressive of American legal norms doesn’t mean that administration is without challenges. The surveillance apparatus, for instance, is opaque and invasive. Immigration agencies have been slapped down by courts for their unconstitutional punitiveness and for engaging in what amounts to administrative lawmaking. Agencies can also be too lax: for instance, the apparent inability of the Securities and Exchange Commission and other financial oversight institutions to corral Wall Street has provoked serious concern over bureaucratic capture.
Our deepening understanding of the history and theory of the administrative state should remind us that we can’t simply wish away these challenges, which reflect ideological contest. As Mashaw shows, administrative agencies have always been subject to and indicative of political dispute. For example, the composition of their staffs and the nature of their practices reflect broader public commitments. During the republican years of the early nineteenth century, agencies hired on the basis of “character” and “standing in the community.” But during the period of Jacksonian democracy, this scheme was attacked as a miniature aristocracy and replaced with a “spoils system,” whereby employment was determined by the party that won office, which seen as a democratic advance. These systems each had their advantages and disadvantages, but there was no way to divorce them from politics.
There is no time before the administrative state we can revert to, no simple practices we can adopt to fix abuses or failures. If correcting administrative faults were simple, then the administrative state really would be outside the bounds of politics. The truth, though, is that through our political institutions, Americans have been struggling since the earliest days of the republic to make administration work, just as administrators have, with great consequence, struggled to make the state function. That is the normal state of U.S. politics. But undoing the administrative state entirely? That would mean returning to a country that never was.
Mike Konczal is a fellow at the Roosevelt Institute. His work has appeared in The Nation, Slate, and The American Prospect. He blogs at Rortybomb.
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