"The Threat to Liberty" (2017) is an article by American academic and journalist Steven F. Hayward arguing that the administrative state is unconstitutional. The article traces the roots of the administrative state to former President Woodrow Wilson and charts its subsequent growth into what Hayward refers to as the "fourth branch of government." The article draws parallels between the development of the administrative state and the development of progressive beliefs—both those of Wilson's contemporaries in the Progressive Era (1890-1920) and of the modern progressive movement. Hayward criticizes the administrative state as a "perversion of constitutional self-government" that, if left to grow unchecked, "will result in the end of limited constitutional government."[1]
HIGHLIGHTS
Author: Steven F. Hayward
Source: Claremont Review of Books, February 1, 2017
Abstract: Hayward's article argues that the modern administrative state is unconstitutional. He examines the birth of the administrative state under former President Woodrow Wilson during the Progressive Era and follows its development through the modern progressive movement. Hayward identifies what he considers to be contradictions of Progressivism that resulted in the unconstitutional establishment of the administrative state and contributed to its growth.
Author
Steven Hayward is an American author and professor. As of January 2018, Hayward was the Ronald Reagan Professor of Public Policy at Pepperdine University, the Thomas Smith Distinguished Fellow at the John M. Ashbrook Center at Ashland University, and a senior resident scholar at the Institute of Governmental Studies.
Below is a summary of Hayward's education and career:[2][3][4]
- Academic degrees:
- B.S. in business and administrative studies, Lewis & Clark College, Portland, Oregon
- M.A. in government and Ph.D. in American studies, Claremont Graduate University, Claremont, California
- Professor of politics and public policy
- Author and political commentator
- Former senior fellow in environmental studies at the Pacific Research Institute
- Former F.K. Weyerhaeuser Fellow at the American Enterprise Institute
The Progressive Era and the birth of the administrative state
Hayward claims that the administrative state, which he refers to as a "perversion of constitutional self-government," originated with the Progressive movement of the early 20th century. President Woodrow Wilson was at the forefront of the movement, which initiated the theory that the separation of powers inhibits effective governance. As Hayward's article claims, in Constitutional Government in the United States, Wilson proposes that the Constitution is a document open to changing interpretation according to the changing times rather than a document bound by the original intent of its authors:
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What bothered Wilson the most was one of the central features of the logic of the Constitution as explained especially in The Federalist: the separation of powers. Wilson laid out his criticism of the separation of powers in his book Constitutional Government in the United States, in which he argued in favor of a 'Darwinian' Constitution. Government, he argued, is not a machine, but a living, organic thing. And 'No living thing can have its organs offset against each other as checks, and survive…. You cannot compound a successful government out of antagonisms.' Wilson thought the conditions of modern times demanded that government power be unified rather than fragmented and checked. His great confidence in the wisdom of science and benevolence of expert administrators led him to the view that the founders' worries about concentrated power were obsolete. He exhibited the combination of love for power and unbounded paternalism that is the hallmark of the administrative state today.[5]
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According to Hayward, Wilson believed that government administration could be managed by a detached, apolitical group of experts that would be insulated from the distractions of the surrounding political environment. Hayward argues that the rejection of the separation of powers by Wilson and his contemporaries in favor of a more centralized government resulted in the development of the administrative state. Hayward writes, "Blasting apart the separation of powers is the single most important change that enabled the rise of the administrative state:"
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The main reason Progressives like Wilson no longer shared the older liberal suspicion of government power was the new view that politics and administration could be neatly and cleanly separated, with administration entrusted to scientifically trained and disinterested experts, who by their very expertise should be insulated from political pressure. Frank Goodnow, a prominent political scientist of the Progressive Era and one of Wilson’s teachers, provides the best short summary of this view in his book Politics and Administration: A Study in Government:
'The fact is, then, that there is a large part of administration which is unconnected with politics, which should therefore be relieved very largely, if not altogether, from the control of political bodies. It is unconnected with politics because it embraces fields of semi-scientific, quasi-judicial and quasi-business or commercial activity—work which has little if any influence on the expression of the true state will. For the most advantageous discharge of this branch of the function of administration there should be organized a force of government agents absolutely free from the influence of politics. ... The position assigned to such officers should be the same as that which has been by universal consent assigned to judges. Their work is no more political in character than is that of judges.'
There is something almost charming as well as comic about this level of naïveté, except that so many people in the administrative apparatus of government still believe it.[5]
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The unconstitutional administrative state
Hayward contends that the administrative state is unconstitutional because it rejects the constitutional principle of separation of powers. He cites legal scholars, including Richard Epstein, Philip Hamburger, and Gary Lawson—all of whom argue that the administrative state is unconstitutional—to support his argument:
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Blasting apart the separation of powers is the single most important change that enabled the rise of the administrative state—much more important even than the income tax. In recent years a number of leading legal scholars, such as Richard Epstein and Philip Hamburger, have said openly what would once have been unthinkable and unsayable in serious company: the modern administrative state is unconstitutional. Writing in the Harvard Law Review in the early 1990s, Gary Lawson of Boston University School of Law put the proposition with admirable directness and concision: 'The modern administrative state is not merely unconstitutional; it is anti-constitutional. The Constitution was designed specifically to prevent the emergence of the kinds of institutions that characterize the modern administrative state.' And he says 'the destruction of this principle of separation of powers is perhaps the crowning jewel of the modern administrative revolution.'[5]
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Contradictions of Progressivism
Hayward identifies what he considers to be contradictions of Progressivism that gave rise to the administrative state. Firstly, Hayward argues that Wilson and other Progressive Era thinkers viewed government as a source of power to implement change as opposed to a system of checks to curb unlimited power. He argues that, rather than working in concert with the checks and balances of the three branches of government, Progressive leaders actively sought to bring about a centralized federal government to facilitate their desired policies. According to Hayward, "Progressivism saw itself as the moderate alternative to revolutionary socialism, but its economic inclinations certainly tended toward the kind of central authoritarian control of the economy that is nearly indistinguishable from socialism:"
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Wilson and most other leading Progressives hated the Declaration of Independence for its principle of individual rights rooted in 'the laws of nature and nature’s God.' The central philosophical proposition of 'Progressivism' is that History with a capital 'H' or 'Progress' with a capital 'P' had replaced nature as the ground of political life. As implausible as it might seem today, the idea that science would unlock Newtonian 'laws of motion' for history, thus making the course of the future as predictable as the acceleration of a falling object, was surprisingly widespread. And if history is scientifically predictable it is controllable. The world of chance and accident could be conquered. 'Progress!' Wilson wrote; 'No word comes more often or more naturally to the lips of modern man.'
The State, now with a capital 'S' to go along with capital 'H' History and capital 'P' Progress, is the agent of purposeful change. Out of this progressive philosophy the modern understanding of 'political leadership' was born—the necessity of what George H.W. Bush unwittingly but correctly mocked as 'the vision thing.' 'Leadership' was a term almost wholly absent from the vocabulary of the founders. Modern 'leadership' is distinct from the older understanding of statesmanship. A progressive leader sees ahead, and thus forces the pace of change, whereas statesmanship is more anchored in the understanding of the limits of politics.[5]
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Hayward's article further argues that the administrative state demonstrates a central contradiction of the Progressive movement, what he refers to as the dueling claims of being both "populist and elitist at the same time." He argues that while many reforms of the era aimed to increase the political influence of the average citizen, such as the passage of the 17th Amendment to bring about the direct election of U.S. senators, the development of the administrative state meant that meaningful government policy decisions were increasingly made by administrators rather than voters:
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But by far the greatest contradiction was the idea that Progressivism would be more populist and elitist at the same time. Practical democratic reforms such as the direct election of senators, initiative and referendum, and so forth, were intended to give more voice to the people, while the doctrine of scientific administration sought to seal off a larger and larger portion of government from the people. It represented the American domesticated version of the phrase attributed to Friedrich Engels and Saint-Simon that 'the government of men will be replaced by the administration of things.' The Progressive attempt to resolve this contradiction involved supercharging the distinction between means and ends—popular politics would allow the public to speak about the ends of government, while the means would be left to the expert administrators. But as the ends of Progressive politics were severed from the old liberal understanding of protecting individual natural rights and were now open-ended, this distinction collapses instantly.[5]
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Evolution toward the modern administrative state
Hayward further argues that subsequent political and intellectual movements following the Progressive Era failed to check the growth of the administrative state. Mid-century, the positivist methodology for studying human behavior called behaviorism became popular among academics in political science and other social sciences. Hayward believes that behaviorism was accompanied by a rigid belief in the fact-value distinction, which encouraged "confidence that science was on its way to unlocking causation in humans and human affairs, while openly placing questions of 'value'—or the ends of politics—beyond the reach of human reason." Later, Hayward argues, behaviorism waned and regression modeling became a popular method of studying and quantifying human behavior. These intellectual movements were followed by the resurgence of Progressive values and ideas with the modern progressive political movement.
Hayward claims that the shift toward government centralization coupled with the renewed embrace of Progressive Era-ideology in the modern progressive movement have resulted in a contemporary administrative state that "is now aimed less at correcting market failures than moral failures." He cites two examples to illustrate this claim—the interpretation of the Civil Rights Act of 1964 to challenge legislation in North Carolina requiring an individual to use the bathroom that aligns with the gender on their birth certificate and the application of Title IX:
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The doctrine of power combined with the revived doctrine of History as Progress gives us the insatiable, unlimited administrative state we see today. The administrative state now is aimed less at correcting market failures than moral failures. This is why the federal bureaucracy without hesitation extends the Civil Rights Act of 1964 to tell North Carolina that it cannot have single-sex bathrooms, and why Title IX is extended well beyond legislative intent to institutionalize the radical feminist ideology of 'rape culture' heedless of either facts or due process of law. This is not just limited to government bureaus. As James Burnham argued, the 'managerial society' would come to permeate the world of 'private' business as much as government. We can see this mentality in the case of Brendan Eich, hounded out as CEO of Mozilla for having once held the same position on gay marriage that Barack Obama and Hillary Clinton held at the same time, or the number of corporations that announced they would cut back business activity in North Carolina over the bathroom bill. 'Resistance is left to the minority, and such as will not be convinced are crushed.' And this project is self-perpetuating.[5]
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Hayward argues that the authoritarian and utopian tendencies of the Progressive movement have become ingrained and dominant in American society, which limits the effectiveness of actual and proposed attempts at reforming the administrative state:
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Today’s progressives do not think of themselves as tyrants any more than the Progressives of Wilson’s time, but the underlying doctrines are metaphysically identical to totalitarianism. ... Today’s progressives are more fully utopian, though their utopianism is diffuse or obscured by deliberately obscure theory, and above all any conception of American exceptionalism is hated. The point is: the problem of the administrative state is much more than a problem of economic illiteracy, decayed constitutionalism, or modernization, which is why the numerous gimmicks to restrain or reform it, such as cost-benefit analysis, affirmative congressional consent to new regulations, rolling back judicial deference, or other legal fixes will not do very much to change the direction of rule today. The problem is more serious than bad policy and bad law. If it is not stopped and reversed, it will result in the end of limited constitutional government.[5]
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"Restoring the American Idea"
In the final section of his article, subtitled "Restoring the American Idea," Hayward argues that the elimination of the administrative state and a return to the designs of the founding fathers requires a philosophical battle against progressive ideas:
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As I suggested at the outset of this essay, the modern conservative movement was slow to recognize Progressivism in its fullness. ... The combination of Progressivism’s embrace of historicist philosophy and positivist scientism is neither an exhaustive nor exclusive account of what ails America. ... But it is hard to see the constitutional deformations succeeding to the extent they did over the last century, the crisis of the Great Depression notwithstanding, in the absence of the conscious Progressive assault on the American Founding. It makes clear that restoring the American republic to something resembling the nation the founders designed requires fighting back through Progressivism at the level of basic political philosophy.[5]
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Hayward argues that although this project is a difficult one, he sees encouraging signs for its success in such areas as low public confidence in government, what he calls the "intellectual exhaustion of the Left," and what he perceives as an increasing disinterest among college students in the humanities and social sciences:
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That is a tall order, and not an easy case to make on the retail level. The ordinary or common sense understanding of change and 'progress' provides today’s progressives with a superficial home field advantage rhetorically. On the other hand, public confidence in American government is at an all-time low, in part because the administrative state is incompetent at its increasingly ambitious ends, and as its increasingly arbitrary character becomes more evident.
There is also the intellectual exhaustion of the Left. Though the Left still has its celebrity intellectuals, the deliberate obscurity of their thought limits their broader public appeal. ... Given that the Left today is explicitly obsessed with power, perhaps it no longer needs a pseudo-rational foundation, or feels a need for serious philosophical engagement. But this is among the reasons for the decline of the humanities in higher education, of the evident and growing boredom among the dwindling number of non-radicalized students who wander haplessly into classrooms in the humanities and social sciences, and sensibly come away with the impression that there is nothing important to learn. This provides hope that a return to the older way of studying political things would find a large and eager audience.[5]
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See also
Full text
- ↑ Claremont Review of Books, "The Threat to Liberty," February 1, 2017
- ↑ The Ashbrook Center, "Steven Hayward," accessed June 29, 2017
- ↑ DESMOG, "Steven F. Hayward," accessed June 29, 2017
- ↑ Institute of Governmental Studies, "Steven F. Hayward," accessed June 29, 2017
- ↑ 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
