Debating the American State: Liberal Anxieties and the New Leviathan, 193-197 9780812291155

Citation preview

Debating the American State

This page intentionally left blank

Debating the American State Liberal Anxieties and the New Leviathan, 1930–1970

Anne M. Kornhauser

universit y of pennsylvania press phil adelphia

Copyright 䉷 2015 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the United States of America on acid-free paper 1 3 5 7 9 10 8 6 4 2 Library of Congress Cataloging-in-Publication Data Kornhauser, Anne M. Debating the American state : liberal anxieties and the new leviathan, 1930–1970 / Anne M. Kornhauser. — 1st ed. p. cm. Includes bibliographical references and index. ISBN 978-0-8122-4687-2 (hardcover : alk. paper) 1. Liberalism—United States—History—20th century. 2. United States—Politics and government—20th century. I. Title. JC574.2.U6K67 2015 320.97301—dc23 2014029611

In memory of my parents Ruth Rosner Kornhauser and William Kornhauser

This page intentionally left blank

Contents

Introduction

1

Chapter 1. Leviathan and Its Discontents

18

Chapter 2. Democracy and Accountability in the Administrative State

52

Chapter 3. The Rule of Law When the State Goes to War

90

Chapter 4. Liberal Democracy Conducts an Occupation and a War Crimes Tribunal

130

Chapter 5. Individual Autonomy and the Modern American State: The Philosophy of John Rawls

175

Epilogue

221

Notes

231

Index

311

Acknowledgments

321

This page intentionally left blank

Introduction

The New Deal era left behind a host of political, institutional, and economic legacies. Among the most familiar are the realignment of the two major parties into a liberal Democratic Party and a conservative Republican Party, a compensatory social services regime, and a commitment to use fiscal and monetary policy to manipulate the economy. Just as important, but less often recognized, the New Deal bequeathed to the United States a new type of state: the administrative state.1 New Dealers took the administrative seeds planted over the previous several decades of state building and nourished them into a full-blown bureaucratic machine, a leviathan, as it was often called. The frequent references to the biblical sea monster ‘‘Leviathan’’ during the thirties and forties are telling. They traversed the political field and were rarely pejorative.2 The term was first given political valence by the seventeenth-century English philosopher Thomas Hobbes to symbolize the concentrated power of a centralized state. Similarly, the mid-twentiethcentury invocation of a ‘‘leviathan’’ indicated that it was not only the size and scope of the state that was changing. How the nation was being governed and the way that governance was justified were also undergoing a transformation, one that raised uncomfortable questions even among the state’s most ardent supporters.3 The ‘‘leviathan’’ evoked the newly formed state’s centralized, hierarchical power, its unpredictability, and its multidimensionality, arms and legs flailing about at cross-purposes. Helmed by an unprecedentedly strong executive and managed by a large class of unelected officials armed with broad discretionary powers, the administrative state added a substantial layer of federal institutions—boards, agencies, and other administrative entities. Equally important, it fundamentally altered the conduct of governance. The administrative state privileged the specialized expertise of unelected officials and command and control decision making over democratic deliberation and popular political participation,

2

Introduction

ad hoc rule making over statutory and judge-made law, and executive power over legislative authority.4 It also generated a technocratic rationale to justify its existence, an administrative ideology, which formed the core of the statist liberalism that underlay the New Deal.5 As a result of the crisis conditions in which it grew up and the internal contradictions of pouring the new wine of national bureaucracy into the old skin of constitutional democracy, the administrative state was from the outset beset by concerns about its legitimacy. This book is about those concerns and the intellectuals who first expressed them most thoughtfully and dispassionately: liberals themselves. Focusing on a group of sympathetic but critical intellectuals, it explores the little-discussed but tangible discomfort on the part of liberal thinkers with the very state conceived and built in their name.6 Although often masked by the rapid pace of reform and emergency politics, the core debates over the modern American state can be discerned in the writings of a wide-ranging cast of liberal-minded intellectuals in the middle decades of the twentieth century. These American social scientists, German e´migre´ legal academics, and the philosopher John Rawls were sympathetic to the New Deal’s statist liberal project but troubled by some of its political, legal, and ethical ramifications. These included an increasing reliance on extralegal measures and nonrepresentative, undemocratic political institutions, and the turn away from ethical principles to justify state action. These critical liberal thinkers reveal the complexity of the conceptual and political struggles within modern American liberalism, in particular liberals’ tentative relationship with their own state. Liberalism, they showed, failed to come to terms with the implications of bureaucratic governance and, as a result, to produce a principled ‘‘legitimating theory’’ for the administrative state.7 The legacy of these failures manifested itself in subsequent decades and obtains to this day: the defining of American liberalism as a political ideology that either defends the administrative state uncritically or concerns itself with problems at the state’s margins, at the expense of higher-stakes arguments over fundamental institutional change and the costs of a large public bureaucracy.8 The problems identified by these sympathetic critics can help us understand both why American, and indeed Western, political institutions have come to be regarded with increasing distrust and why statist liberalism has remained a tentative and defensive public philosophy.9 Recurring questions about the legitimacy of national political institutions cannot be reduced to a backlash from the left or the

Introduction

3

right, at this moment or that. Instead, since the 1930s, American statist liberalism has rested on shaky conceptual and political foundations, and the reasons for this are internal to liberalism as much as they are the result of external forces. It is not generally recognized that the major tensions within the statist liberal project were identified from its birth and by its supporters. Rather, we have come to associate critiques of bureaucracy and condemnations of ‘‘big government’’ with conservatism or radical activists of the 1960s. However, the interventionist state from the outset has produced critics from across the political landscape. The more moderate but critical voices at issue here have tended to be drowned out by a discourse about the American state that has become increasingly bipolar: liberalism and the Democratic Party as defenders of a bureaucratized, interventionist state versus conservatism and the Republican Party as the guardians of freedom and law against the encroaching bureaucracy. This discourse has obscured the fact that the ‘‘leviathan’’ state, born in crisis and raised by technocrats, was never endowed with a principled rationale by the liberals who supported it.10 The lack of such a rationale and the emergency conditions that attended the state’s consolidation strained the state’s claims to legitimacy and fed the tensions within statist liberalism identified by its sympathetic critics.11 This is not a story about liberal antistatism, however. Nor is it one about the success of statist liberalism in overcoming objections to the new mode of governance ushered in by the New Deal.12 The first has been exaggerated, while the second never occurred. The battle over good or bad, big or small started and ended with the New Deal. Bureaucracy was here to stay—the question was on what and whose terms.13 A statist liberalism continued to prevail even in the face of an increasingly totalitarian threat. The national security state, organized administratively, was not an exception to but an extension of the New Deal state, directed, to be sure, toward very different ends. The statist liberalism with which the sympathetic critics grappled embraced a centralized interventionist state whose main domestic functions were regulatory and compensatory. It generally abided as well a more repressive national security state, which was prefigured in World War II and fully developed during the immediate postwar years. Indeed, the national security state ought not to be seen as the apotheosis of the administrative state. Executive government, extralegal political activity, and a distrust of the democratic process are not one thing when the state engages in

4

Introduction

domestic policy and another when it turns to foreign matters, whether at home or abroad.14 Along with their acceptance of state power, statist liberals also embraced, to varying degrees, a concept of democracy—usually based on pluralistic bargaining—and a concept of law as a means of protecting individual rights and autonomy. However, the rub for statist liberalism was that, depending on how they are institutionalized and the precedence they are given when compared to the expediency of administrative and executive action, democracy and legality may be compromised in a bureaucratic state, especially under emergency rule. Views of liberalism as individualist or proceduralist often downplay these tensions or relegate them to one area of governance, such as national security. Here the concept of statist liberalism acknowledges modern liberalism’s admiration for state power in various forms, even as the uses of that power changed over time and undermined many of the policies and priorities of the early New Deal.15 Sympathetic critics of statist liberalism evinced three distinct but overlapping tensions that characterized liberal apprehensions about administrative hegemony. The first involved the friction between the hierarchical and unelected bureaucratic state and the ideal of majoritarian democracy, as expressed in some form of consent, whether through direct participation or genuine representation. This critique was taken up in the 1930s when administrative governance became hegemonic in the federal government and democracy seemed under threat. The second entailed the problematic place of the rule of law within an administrative regime. Legalism became the focus of attention during World War II, when concerns about a democratic deficit became muffled by military mobilization and patriotic fervor. Leading this debate was a group of German e´migre´ legalists who noted the threat to the rule of law in both democratic and totalitarian states that were organized bureaucratically. Germany became central to this discussion because the Nazis maintained a pretense to legality and because fealty to the rule of law became an issue in the German occupation in which many of the e´migre´s participated. The third involved the threats to individual autonomy and equality posed by an expert-driven, technocratic form of governance. Here the most important interlocutor was John Rawls, who began his project of legitimating the administrative state in the late 1940s while a graduate student in philosophy at Princeton. Rawls, who has only recently garnered significant historical attention, focused on the individual as the main arbiter of right in a modern state and the requisites for maintaining autonomy in a hierarchical, unelected bureaucracy. For these thinkers,

Introduction

5

the administrative state brought with it a level of bureaucracy that threatened popular sovereignty, a level of emergency rule that jeopardized the legalistic principles that constrained arbitrary state action and protected the less powerful, and a level of instrumentalism that detracted from the more vital objectives of individual autonomy and a just outcome for all. These criticisms were not, for the most part, aimed at programs or policies. Instead, the sympathetic critics expressed concerns not about whether the state should intervene in the economy, the society, or other countries, but how it should do so, not about whether there should be government regulation of economic institutions but what kind and subject to whose control. They worried, on a more general level, about how the state should justify itself to its citizens in order to command their support: On what basis would or could citizens offer their consent to the political institutions of the administrative state? Liberal democracy in a bureaucratic, crisis-ridden guise needed to be able to justify both constraining the power of the state and the need to increase that power. The question was how to justify the bureaucratic state beyond an emergency. What made it worth supporting other than its ability to respond quickly and decisively to crisis conditions? And once the emergency is over, how may a constitutional democracy legitimately assert its power to protect itself from future crises? What, in other words, threatens the very existence of a constitutional democracy, and what may a democratic regime legitimately do to counter such a threat? The sympathetic critics of liberalism looked for ways to temper the excesses of the state in light of these liberal democratic norms and to offer a principled justification for the use of concentrated executive and discretionary power should these prove necessary. They did not wish simply to excuse the invocation of emergency power or administrative fiat, but to find ways to preserve as much as possible democratic practices and legality in light of these developments. One might say they sought to replace emergency justifications for the use of bureaucratic power with normative ones. To do so they identified political and moral principles by which the new forms of coercive state power could coexist with other modern liberal values: democracy, the rule of law, and individual autonomy. Although they may have differed on any given policy prescription, governmental program, or political question—such as how much the state ought to control or even take over capitalist enterprise—they shared a concern over the implications of administrative hegemony for the functioning

6

Introduction

of constitutional democracy and over the seeming inability of the new statist liberalism to arrive at a principled defense of the new administrative state. In response, they sought to strengthen statist liberalism by regrounding it in more coherent ethical principles. Political modernists, they did so without harkening back to older public philosophies such as republicanism or progressivism.16 ‘‘In terms of the liberal tradition,’’ wrote Pendleton Herring, a critical liberal and political scientist, ‘‘there has been a marked tendency of late to underestimate the moral element and to treat Ignorance and Want as manageable economically or technologically.’’17 Statist liberalism was met with a moral not a technocratic critique by its fellow travelers. Yet they did not prescribe an overarching common good. Instead, the sympathetic critics emphasized procedural ethics and the internal moral compass of the citizenry. Even for the German e´migre´s, many of whom could not quite let go of their yearning for a unified state sovereignty, the idea of the state prescribing a moral code or way of life stank of Nazism’s noxious communitarianism in which general principles of ethnically based communal solidarity substituted for rational, formal law. Although the critics’ more grounded diagnoses of the ills of the age were not always apt or convincing, they frequently asked the right questions—questions that flowed from the obvious and stark changes in governance and political institutions and that are still being asked to this day. The crucial issue was the impact of the newly organized state on constitutional democracy. The sympathetic critics aspired to a state that could achieve not just stability but what Rawls came to call ‘‘stability for the right reasons’’—reasons that were rational and that embodied ‘‘a firm allegiance to a democratic society’s political (moral) ideals and values.’’18 They agreed that means and ends were not separable, that what kind of democratic institutions existed determined what kind of democracy would be possible, and that any worthwhile liberal democracy could not ignore the ethical dimension necessary to define and realize its aims. Critics such as Herring believed that the piecemeal and technocratic response of the architects of the New Deal and the warfare state was overly identified with a singleminded quest for efficiency of administrative governance and not enough with how those institutions operated—on whose behalf, with what protections against abuses of power, with what sorts of consequences for the rule of law, democracy, and individual autonomy. The issues that the critical liberals wrestled with were rarely theoretical abstractions. The interlocutors of liberalism, many of whom served directly

Introduction

7

as officers in the federal government or indirectly as formal advisers, examined how political institutions ought to be structured and according to which political and legal rules and objectives. Louis Jaffe, Pendleton Herring, Philip Selznick, Carl J. Friedrich, Arnold Brecht, Ernst Fraenkel, Otto Kirchheimer, Karl Loewenstein, Franz Neumann, and even the moral and political philosopher John Rawls, among others, may not have been the most public of intellectuals. Yet all were important in shaping both political and intellectual debates over the fate of liberal democratic institutions in an era of bureaucratic governance and emergency politics. These thinkers did not form a cohesive group in any institutional or ideological sense, though many of them knew one another and engaged in a vibrant crossdisciplinary debate about the administrative state. Although they may not have gathered in a weekly salon, neither were they isolated intellectual monads. All held academic posts at one time or another and read each other’s writings, despite hailing from a wide range of academic disciplines. Some belonged to the same academic associations and worked together in the federal government. Their political orientations ranged from variants of statist liberalism to social democracy. Indeed, some would surely shudder at being called a liberal. But one need not identify as a ‘‘liberal’’ to support liberal ideas or criticisms. What united them politically was their sense of unease with the administrative state and their reasons for that unease. Together, they constituted a ‘‘community of preoccupations’’ that contributed to national political debate and, on occasion, shaped policy choices from the 1930s until the 1970s, when deregulation undermined statist political persuasion.19 In addition to the difficulties generated by the administrative state’s awkward fit with existing legal and political practices, the new state was rendered problematic for another reason: it was a ‘‘crisis state.’’20 This crisis orientation resulted from the emergency conditions under which the state emerged as well as the natural affinity between administrative governance and crisis governance. Emergency rule, it has often been noted, represents modern administrative governance in its purest form. ‘‘Crisis government is essentially executive and administrative government,’’ observed the idiosyncratic liberal thinker Max Lerner.21 The crisis conditions in which the administrative state grew up accentuated the state’s more perilous and controversial features even as they stimulated creative policymaking.22 The twin calamities of global economic

8

Introduction

collapse and total war provided both the excuse and the necessity for the substantial expansion of administrative and executive power. Unique among modern democracies, the American administrative state came to fruition in the context of structural crises, and this encouraged certain inherent affinities between crisis politics and administrative governance: decreased reliance on deliberative politics and greater dependence on specialized bureaucrats with responses at the ready. There was also a tendency for the executive to concentrate power in order to make quick decisions and circumvent partisan adversity. It is no accident that when the clouds of emergency finally began to clear in the 1960s, full-blown critiques based on these earlier criticisms burst forth as bureaucracy became the enfant terrible of left-wing student and antiwar activists and of antistatist conservatives alike. The third factor that shaped the critiques of the administrative governance involved the mounting affinities between bureaucratic democracies and totalitarian states.23 The hegemony of administrative governance and the crisis orientation of the American state revealed what Sheldon Wolin has called ‘‘a common order of problems’’ that affected both democracies and dictatorships. The awareness of these similarities, particularly acute among the German e´migre´ intellectuals focused on Nazi Germany, exposed the fragility of constitutional democracy, and constrained the imagined futures for the state. As Wolin rightly emphasizes, ‘‘A common order of problems does not necessitate a uniform response. Nevertheless, the hard truth is that the differences in ideology and practices are not always as sharp as one would perhaps like. A common order of problems does set limits to the range of possible choice.’’24 A keen understanding of that range united the figures participating in this complex midcentury conversation about statist liberalism. The themes of democracy, the rule of law, and individual autonomy were, at times, intertwined in the writings of these critical liberal intellectuals. However, they tended to emphasize one or another, their emphases corresponding to the changing contextual frame within which they were writing. This work thus takes up one theme at a time in keeping with the chronology of the discourse about statist liberalism. However, it would be wrong to assume that any of these concerns was ever thought about in complete isolation from the others. Broadly, the rule of law—a normative conception of legality requiring rational, formal, and predictable rules that ensured fairness and equality—was seen as necessary for establishing the

Introduction

9

conditions for democracy and individual autonomy, while autonomy was a necessary precondition for democratic participation. The German legalists, for example, believed that the individual stood a much greater chance of achieving the kind of freedom and equality required by democracy if the rule of law prevailed. Without it, special privileges accrued to better organized and powerful interest groups and firms, which only aided them in their efforts to dominate the political process. Democracy was the trickiest of the concepts engaged by the critical liberals and requires elaboration. Modern democracy has been conceived of in many different ways—as government by majority rule; as a system that ensures political and legal freedom and equality by securing rights; as an arena of bargaining among interest groups; or as popular sovereignty, a political arrangement in which the people as much as possible have the final word, either indirectly through their representatives and by elections, or directly through participation and voice. In the last definition, democracy is a form of consent, or the expression of political will. Majority rule remains at the center of this definition, but it is constrained by checks lest it trample on the rights of the minority. Most critical liberals believed that this modified form of majority rule, grounded in consent, had become more difficult to achieve in the administrative state because deliberative institutions—elective, rule-bound, and transparent—had become less important than the discretionary decisionmaking powers of bureaucratic appointees. This, in turn, meant that elections themselves became less important as a form of consent. At the same time, access to the decision makers in administrative institutions, with the exception of well-organized and powerful interest groups, also decreased, again making democratic participation and consent more difficult to achieve. As a young David Riesman argued, ‘‘Many persons who have considered the problem are aware of the need for supplementing the dull regularity of elections with more extensive public participation and responsibility.’’ He added, quoting the political scientist Charles E. Merriam, ‘‘The organization of consent is the greatest problem of our day.’’ Riesman concluded, as did many other critical liberals, that to save democracy there would need to be greater access to administrators and new forms of participation in government as well as the means to force the bureaucracy to become more responsive to public demands.25 In exploring how liberals responded—and did not respond—to issues of legitimacy raised by the growing administrative state, it is important to

10

Introduction

clarify several key concepts, not least the administrative state itself. The recognition among scholars that modern American liberalism initiated a fundamental transformation in the country’s mode of governance, as opposed to a more modest program of political and social reform, is of relatively recent vintage. So too is the description of the institutions undergirding that governance as the ‘‘administrative state.’’ Many scholars use the term in a narrow, institutional sense. In this book, the administrative state denotes the institutions that populate the federal government—a plethora of agencies, boards, commissions, and any other institution inhabited by unelected officials whose task is to design and implement domestic, foreign, and military policies.26 This narrower conception elides the fact that the modern administrative state, as it emerged in the 1930s, is also defined by certain functions that necessitate administrative hegemony such that the entire governing structure yields to administrative norms. It is a regulatory and compensatory or social services state, but it is also a knowledge-producing state, and a military state. All of these functions rely upon technical expertise, the state’s deep penetration into society and the economy, and the predominance of a semiautonomous bureaucratic element within the state’s organizational structure.27 The people who perform these tasks, the congeries of unelected bureaucrats and the political appointees who oversee them, constitute the largest sector of the federal government in an administrative state. The administrative state, as it developed in the nineteenth and twentieth centuries in the West, was also accompanied by a concentration of power in the executive and an increased use of emergency rule. Finally, the administrative state possesses its own political rationality. I use the phrase ‘‘administrative ideology’’ to describe the American version of this rationality. This ideology, which coalesced in the 1930s, was selfjustifying—it did not refer to any ultimate aim or even any general principles to rationalize the newfound administrative hegemony. Besides its commitment to efficiency, the importance of elected, expert officials, and the delegation of legislative power to those officials and ultimately to the president, this ideology celebrated the fact that administration was the most important function of the state. The raison d’eˆtre of bureaucratic institutions was efficiency and expedience.28 Wrapped in economic and geopolitical emergencies, this instrumentalist ideology was ultimately not enough to sustain a compelling normative basis for governance under less extreme political and economic conditions.

Introduction

11

The notion of a normative justification of the administrative state raises the question of legitimacy, a question that has bedeviled the American administrative state from the outset. This is not to say that critical liberals saw the state as illegitimate or that it was on the brink of a ‘‘legitimacy crisis.’’ First, a principled justification was hardly necessary for the administrative state to function or even to function well. Second, there is no evidence that the American political system was regarded as illegitimate by any substantial segment of the public.29 Finally, something more than public assent is required for legitimacy. By legitimacy, I mean that the state is perceived as having a moral right to exercise power over its citizens. Put another way, a legitimate state has succeeded in consistently and meaningfully justifying its political arrangements to the persons who must live under them. We have seen that it would be difficult to establish this fact for the polity as a whole based on the absence of public outcry. In any case, the degree of popular support for government is not the topic explored here. Rather this book views legitimacy as a form of public justification, that is, of making political arrangements justifiable to the citizens who must live under them. On this understanding, the state can achieve legitimacy in two ways. It can demonstrate a consistent adherence to its own claims to legitimacy, or it can establish an ‘‘internal standard for adjudging the legitimacy of specific actions, institutions, rights, and duties.’’30 Arguably all states, except for those that rely on pure force, need to be able to claim legitimacy. But as the sociologist Nikolas Rose has pointed out, the bureaucratic welfare state, precisely because it purports to act for the well-being of its citizens, requires that the governing authority give reasons for its actions based on authoritative knowledge. Once knowledge is connected with governance, ‘‘ruling becomes a ‘reflexive’ activity’’ in which rulers must ask themselves such questions as ‘‘who should govern, what is the justification for government, what or who should be governed and how.’’ The fact that governance is grounded in knowledge ‘‘makes possible both the exercise of government and its critique’’—a critique, that is, from within the ruling political logic itself.31 Therefore, the absence of a significant debate about the nature of the state’s major institutions and practices would be a rough indication that the basic structures of the American state had achieved a high level of legitimacy in the sense that the state had offered a persuasive justification for its rule. The critical intellectuals of concern here searched for plausible claims of legitimacy for the administrative state and posited institutional and

12

Introduction

normative adjustments that would make those claims realistic but that went beyond ‘‘the normalization of emergency power.’’32 The fact is that liberal practices in the United States have never been well established as normative commitments, and the burden on American political actors and intellectuals to produce culturally resonant rationales for state governance has always been particularly heavy, for a variety of reasons. Not among these reasons is the usual explanation of American exceptionalism, the seemingly intractable and pervasive antipathy to government involvement in society and economy. Rather, historians need to attend more closely to the fact that modern political liberalism and its state came about amid the emergencies of catastrophic economic failure and a devastating and unsettling war. The issue of the administrative state’s legitimacy has not been lost on scholars in general and historians in particular. However, it was not until the 1960s that the problem of political legitimacy was made explicit in the scholarly literature, when the United States witnessed vocal challenges to the state by activists and intellectuals of a variety of political persuasions.33 Political scientists, legal scholars, and students of public administration usually understand the legitimacy problems with the American administrative state as emanating from the relationship between administration and the rule of law or constitutionalism, or between administration and private rights.34 Most acknowledge that the New Deal state did raise issues of legitimacy but that these issues have long since been resolved, either by the Supreme Court’s acceptance of Congress’s broad delegation of what amounts to lawmaking to the bureaucracy or by legal reforms constraining the discretion and scope of administrative rule. Others argue that because the administrative state clearly exists and is thriving, it is ipso facto legitimate.35 Historians, meanwhile, have embarked on their own quest for legitimation by excavating the uses of federal power throughout American history. Or they have joined with political scientists in suggesting that legitimacy issues surrounding the American administrative state were largely resolved in the wake of the New Deal.36 Some issues surely were. It is also certainly true that the administrative state as a whole has been widely endorsed by political elites if, in some cases, only as a necessary evil. However, a broader and more historical view of the state and one that attends to liberals’ own discomforts with the new leviathan suggests that the questions surrounding its legitimacy were more variegated and potent than these analyses suggest. Recent historical literature on the New Deal–era state has taken up just these sorts of questions. Historians have begun to tackle the burdens the

Introduction

13

New Deal state has placed on American politics and society, rather than simply celebrating its efforts or lamenting the constraints within which it operated. This approach has reinforced Theodore Lowi’s claim of more than four decades ago that, the current national political discourse notwithstanding, the debate over the modern liberal state during the New Deal era did not generally center on more or less government or centralization versus decentralization (federalism). Liberals and conservatives alike accepted a powerful central state in one guise or another. However, the legitimation and efficacy of the leviathan state came with structural and conceptual costs and elisions, strategic justifications, and unseemly trade-offs. Southerners, as Ira Katznelson has shown, were willing to accept a strong bureaucratic state if they could keep white supremacy. Liberal elites and Americans more generally could abide the interventionist state, Michael Sherry has revealed, so long as there was a militaristic rationale behind it. Finally, James Sparrow has argued that a newly powerful centralized state legitimized itself to a skeptical citizenry by informing citizens that they had a moral obligation to obey and participate in their government’s war efforts given the sacrifices of so many American soldiers. The state appealed, in other words, to their patriotism. At the same time the warfare state fostered new rights claims by its citizens in return. But these, Sparrow admits, have often been trumped by ‘‘a nearly constant state of emergency generated by the Depression, World War II, the Cold War, and terrorism.’’37 These works reveal that while it was not as difficult as the American exceptionalist ideal might suggest to convince Americans to accept some version of a powerful administrative state, the justifications offered, aside from the purely pragmatic, could not function beyond the emergencies or immediate purposes they were meant to address. Adding to this developing interpretation, this study demonstrates that the hollowness of these instrumentalist rationales was recognized as early as the 1930s and 1940s by a group of prescient critics who looked for a more lasting basis for the administrative state’s legitimacy. They did so by directly confronting the sacrifices necessary for living with the leviathan, and by trying to find ways for minimizing or circumventing the damage to democracy, the rule of law, and individual autonomy. The antidemocratic potential of the new leviathan was difficult to ignore. With a full-fledged administrative state in the 1930s, with nearly unimaginable crises to manage, even some sympathetic liberal critics who

14

Introduction

served in government could see how vulnerable the new administrative agencies were to capture by powerful interests. The legal academic Louis J. Jaffe, for example, understood that individuals and groups never stood a chance before governmental institutions that often operated in secrecy, or at least without the knowledge of the average citizen, and according to highly technical rules and regulations. They knew that Congress had less and less power over policymaking, and they worried about a growing democratic deficit in the face of all of these developments. They sought answers in ‘‘representative bureaucracy’’ and new channels for participation in regulatory schemes. And they even began to worry about the rule of law ideal, the constraining of government power by a constitution and an independent judiciary, and a way for the less powerful to be heard. Yet the outbreak of the war tended to quiet many of the criticisms of the administrative state as the focus shifted to the cooperation of all governmental institutions toward the single aim of winning the war against fascism. Yet World War II would have a far-reaching impact on midcentury liberal thought, in many ways more than the Cold War. A thoroughgoing reinvigoration of the debate over the administrative state would come only with the arrival of a new group of intellectuals who hailed from Germany and brought a fresh perspective to the threats to constitutional democracy by administrative hegemony. The German e´migre´s drew on their experiences of antiliberalism and the birth of totalitarianism out of a constitutional democracy in reinvigorating a discussion over the rule of law ideal, both as a theoretical and as a practical matter. The German e´migre´s worried about the threat to the rule of law ideal posed by the concentration of executive and administrative power, a feature, they noted, shared by both democratic and totalitarian regimes. These e´migre´s had seen law in its most foundational form—the Weimar Constitution—fail to head off a totalitarian assault and then reemerge, albeit grossly distorted, under a regime that stood for the very opposite of legality. These developments raised crucial questions about what law was and ought to be and how it might function as a check on modern state power while also remaining flexible enough both to ward off threats to a constitutional democracy’s very existence and to accommodate the move toward greater administration. The demise of Weimar and the Nazis’ retention of legal forms reinforced the need for some sort of ethical warrant for the law. The e´migre´s (and later Rawls) rejected the moral absolutism of natural law, and instead searched for ethical standards internal to legality itself.

Introduction

15

The wartime debates make clear that World War II and Nazism need to be considered as phenomena distinct from Soviet communism and the Cold War in telling the history of statist liberalism and its discontents.38 Privileging anticommunism and the Cold War in the narrative of modern American liberalism tends to assimilate Nazism and World War II into the later fears of totalitarianism, leading scholars to ignore the ways in which Nazism raised unique issues of concern to liberal democratic thought and practice. With Nazi Germany in mind, Carl Friedrich even suggested that the totalitarian state was but an extreme version of the discretionary policy state emerging throughout Western democracies: ‘‘Totalitarianism may be considered an exaggerated expression of this general tendency toward the emphasis on policy [rather than legislation]. For in totalitarianism the leaders claim for themselves the right to decide policy matters without any regard to legal forms.’’39 For Friedrich the lesson was not to give up on the administrative state, but to ensure that the proper legal constraints were in place. In general, by stressing the structural similarities in democratic and totalitarian versions of the administrative state, the sympathetic critics could highlight the toll on democracy, the rule of law, and individual autonomy that the growth of administrative hegemony, executive power, and emergency rule might take when carried to an extreme.40 The liberal discourses that arose in the United States in the 1930s and that were elaborated over the next several decades reflected the American context in which they arose, but they were not unique. The changes to which intellectuals responded could not, after all, be contained within a single country, and neither could the discourses about them. Rather, the liberal debates discussed in this book were a response to the consolidation of a certain form of political rule—modern administrative governance. To recognize that transnational structural changes shaped thinking about modern liberalism, then, is also to reconsider the role of immigrant thinkers in these conversations. Instead of considering German e´migre´ intellectuals as importing foreign ideas into a unique American political culture, one ought to see them as offering different angles of vision on broad-based structural transformations in the modern state. The transatlantic importation of political ideas was kept alive, in part, by the large numbers of immigrants from Europe who made the United States their home and contributed significantly to its intellectual life.41 As the first great expositor of modern contractarianism, it was John Rawls who pulled together many of the strings left dangling by the

16

Introduction

unfinished critiques of the statist liberals. He did so as most other liberal intellectuals had abandoned their focus on political institutions in favor of cultural and psychological characteristics deemed important for keeping totalitarianism at bay. His was the first new social contract theory in more than 150 years. The growth of arbitrary power and emergency authority inherent in the administrative state helps to make sense of a significant mystery in the history of modern American liberalism: the sudden reemergence of social contract theory after the war.42 As many scholars have pointed out, Rawls gave philosophical grist to the ‘‘new faith in rights’’ impelled by World War II, but he also tried to resolve the tensions that had plagued statist liberalism since the New Deal. Rawls excavated the idea of consent as the key to maintaining individual autonomy within an interventionist state, a state he very much wanted to preserve but not at the price of lost individual liberty and equality. His theory revolved around two principles of justice that could be said to inform political and social institutions in a ‘‘nearly just’’ constitutional democracy. Rawls wrote mostly about ideal theory and scholars often read his ideas as inapplicable to real-world problems. Yet all modern social contract theory is intrinsically concerned with consent and legitimation, whatever else it might entail.43 Hence one might say that discretionary administration is the arbitrary government of the twentieth century and that Rawls’s social contract was an answer to this new form of arbitrary power and unpredictability in governance. In addition to the more obvious adherence to rights and a commitment to justice based in reason, Rawls’s social contract device conveyed ideas about access to and knowledge about political decision making, self-rule, and cooperation among citizens, all of which were (and are) severely tested by the advent of the administrative state. Also central to Rawls’s theory was the importance of critique and justification in a democratic society—the requirement that both the rulers and ruled be able to give reasons for their societies’ political arrangements and that citizens have the ability and the knowledge to criticize those arrangements if they believe them to be unjust. That Rawls would tackle the problem of the basis for moral judgment in a constitutional democracy was at least partially due to the rise of the administrative state and its cult of expertise. As the legal sociologists Philippe Nonet and Philip Selznick point out, the ‘‘claims of technical expertise’’ on which the administrative state relies ‘‘undermine the legitimacy of public

Introduction

17

criticism and weaken even the most responsible efforts to achieve reform.’’44 In this sense, Rawls’s theory was an act of retrieval. Communitarian critics of rights-based, proceduralist liberalism have criticized Rawls for basing his principles of justice on rights rather than the common good, of thinking of justice as a matter of the rules of the game rather than a substantive moral enterprise. That may be, but one cannot accuse Rawls of developing an ethically neutral theory. Indeed, his writings up to and including A Theory of Justice provided the very ethical standards for the modern American state that had heretofore been lacking. To that extent, the social contractarianism of Rawls represented an attempted closure of the critiques raised by sympathetic critics in the previous decades. The solution he offered may not have answered all of the concerns about the legitimacy of administrative governance, but he raised the issues that liberals and their critics must grapple with to this day.

Chapter 1

Leviathan and Its Discontents

In response to ongoing concerns about the legitimacy of the administrative state, historians and scholars of American political development have sought the origins of the modern liberal state further and further back in time. The tacit premise behind this ‘‘myth of deep roots’’ is that the older the modern state, the more legitimate.1 As with the Commonwealth studies of the 1940s, historians today have looked for governmental intervention in the distant past to vindicate an active state in the present.2 Once a product of the New Deal, then constituted by the progressives’ ‘‘age of reform,’’ now the modern American state may increasingly be found in the interstices of the last several decades of the nineteenth century, in the beginnings of civil service reform and the establishment of the Interstate Commerce Commission of 1887.3 To start the story of the administrative state and its discontents in the 1930s is to chafe against the scholarly vogue, though it is hardly without precedent.4 When one looks at the state in its mature form and not simply at its gestation, it becomes clear that the state of the early twentieth century was not only smaller and less centralized but also of less moment than the state the New Deal liberals built. The hallmarks of the future administrative state were all present—the expansion of agency government, the concentration of executive power, the more limited use of formal law. Yet they were halting in their arrival, inconsistent in their application, and lacking in an unwavering commitment. During this initial age of reform, then, one can hear a few distant rumblings of concern from liberal state builders, and even these came in response to the first glimpse into the future of the administrative state that flashed before them during World War I.5 These pioneers began the liberal debate over the administrative state, but they

Leviathan and Its Discontents

19

were not definitive of it. That debate would arrive only in the 1930s when ‘‘the administrative system became a distinct locus of power . . . [a] source of political initiatives and problems.’’6 The relative absence of unease among liberal state builders before the 1930s suggests that the administrative state did not present a conceptual or institutional problem to be solved much different from the long-standing skepticism about centralized power and bureaucratic mechanisms that permeated American political culture at various points in the country’s history.7 Until World War I, the old ways continued to compete with new administrative and regulatory institutions and norms: federalism remained largely untouched and the relations among the branches of government little changed. For example, President Theodore Roosevelt’s failed efforts to establish control over his government’s administrative agencies confirmed that the prevalent view in the early twentieth century still favored administrative accountability to the legislative branch, not to the executive.8 Only in the 1930s would the new political bureaucracy have to be justified and explained, and only then would troubled liberals start to examine much more pointedly the threats that administrative governance posed to American constitutional democracy. Although the progressives were determined and popular state builders, throughout the decades-long reform era that began in the 1880s and culminated in World War I, the crafting of the new leviathan proceeded in fits and starts, under three presidents, and at the state and local levels more than the federal.9 The wide berth of progressivism suggested a certain degree of chaos in the state-building process of the time, but it also revealed the powerful appeal of progressive ideas. The progressives created a truly ‘‘national regime’’ of reform politics.10 Broadly, progressives stood for ordering an increasingly pluralistic society, establishing controls over corporate capitalism, mitigating the social costs to modernization, and democratizing the polity and society.11 In addition, they believed fervently that scientific and social scientific knowledge ought to guide these endeavors. Progressive intellectuals were much less certain about what kinds of institutions could achieve these goals. While they may have agreed that government ‘‘should actively pursue the public interest,’’ they had very little idea of how it might do so.12 Their ideas varied widely even within the mind of a single individual. Over the course of a few years, for example, Herbert Croly, the leading progressive thinker, changed his views about regulatory commissions, the relative importance of centralized government, and the

20

Chapter 1

mechanisms of direct democracy, such as the initiative and referendum. Walter Lippmann, a fellow journalist who with Croly produced much of progressive political thought, imagined a variety of vaguely constituted institutions that could educate Americans to steer the ship of state in a progressive direction. And in the wake of President Wilson’s unilateral decision to keep the United States out of World War I, both revised their commitment to democracy at all costs. Americans could not be a ‘‘selfgoverning people’’ when it came to their country’s very existence, they noted, approving of Wilson’s stance.13 The inchoate administrative state itself limited the progressive imagination. The idea that a centralized administration would become a governing branch unto itself, let alone one that would institutionally and normatively dominate all others, did not appear to be immanent in the state’s structure, even as a succession of presidents attempted various administrative reforms in the name of efficiency, the professionalization of government employees, and a more powerful executive branch. Although they embraced the idea of disinterested unelected officials as important to democratic governance, even the most nationalist of progressives, such as Croly, Lippmann, and Walter Weyl, could not fully imagine what their institutional role would be, how much power they would have in relation to Congress and the president, or how the public might gain access to them or they to the public.14 Some believed that administrative commissions would likely ‘‘disappear’’ absent a popularly agreed upon program for them to implement or if they proved ‘‘defective.’’ Others expected administrative officials’ newfound discretion to wane once ad hoc decisions congealed into more general rules that could be then inscribed in law.15 Intellectual and political presuppositions of the Progressive era also contributed to the erratic nature of administrative state building and the ambiguity of the administrative ideology necessary to sustain it. Several strains in progressive thought militated against systematic thinking about political institutions and thus—in contrast to the 1930s—a mature debate over the administrative state. First, many progressives were not sure how desirous they were of a highly bureaucratized central state, all the more so after World War I. Croly did not embrace centralized public power as an unalloyed virtue, fearing ill-advised interference in economic institutions, a threat to federalism, and the coerciveness of a concentrated bureaucracy.16 In many instances, progressive intellectuals found the soft coercion of moral suasion and education more appealing than the hard force of direct

Leviathan and Its Discontents

21

government intervention. As the political scientist Marc Stears has argued, the nationalist progressives were not ‘‘dedicated to any knee-jerk rejection or confirmation of the central state.’’ Instead, they were ‘‘committed to experimenting with a series of new political mechanisms in the search for an institutional settlement which would allow them to realize a series of more fundamental ideals.’’17 Second, nationalist progressives conceived of administrative governance as an experiment. Therefore how and when to use it and how to constrain its power required further thought and investigation. As Croly observed well after Roosevelt had taken office, ‘‘No sufficient attention has yet been paid to the way in which [the administrative aspect of government] is to be modified. A prolonged period of investigation and experimentation will be necessary before a satisfactory reorganization can be carried out.’’18 An additional ambiguity arose from the industrial economy. Large corporations were too new, their economic and social impact too unclear to know whether they should be regulated or, perhaps in some cases, taken over altogether. Both these policy choices would involve an expanding administrative state, but they would require very different kinds of institutions. Finally, progressive intellectuals viewed the state instrumentally. This understanding of the state did not lead to any great interest in its inner workings. Political institutions existed to help citizens form the communal attachments necessary to sustain a democracy and to nurture the public good latent in the minds of the public.19 They ought not in themselves become the aim of statist politics. In fact, Lippmann complained that reformers were overly interested in the architectonics of politics and not enough in human character: They ‘‘concentrate attention on institutions and . . . slight men,’’ he lamented. ‘‘A small step further,’’ Lippmann shuddered, and ‘‘institutions become an end in themselves.’’20 Instead, reformers should train their attention on the people who constructed these institutions. They mattered much more to a democratic society based on the public good than ‘‘the little mechanical devices of suffrage and primaries and tariffs.’’21 The progressive state was an educative state, a shaper of individual character and the social environment, but also one heavily dependent on expertise. One tension that emerged for the nationalist progressives was that the strengthening of national unity and purpose presupposed a strengthening of national political institutions, the only ones, they believed, that could transcend party bosses and local interests. Conversely, a truly national

22

Chapter 1

public opinion could exert itself most effectively on national institutions.22 But aside from national elections, how might the public influence the course of the federal government? And which national mechanisms could fulfill the state’s educative and character building functions? Did it matter if they were coercive? That they sacrificed democratic participation or the rule of law ideal? How might the specialized expert administrators the progressives coveted capture the public imagination? These unanswered and often paradoxical questions help to explain why much progressive thinking about institutions focused on state and local institutions, for they were the most obvious vehicle for educating the public and responding to its will. Without basic agreement among progressive intellectuals or politicians as to how to construct a centralized administrative state, its path was uncertain, and therefore concrete worries about its excesses or legitimacy were rare. ‘‘The growth of the federal administrative system has been comparatively slow and singularly free from oppressive features calculated to arouse public hostility or criticism,’’ one observer remarked.23 Even the Supreme Court, the beˆte noire of the early New Deal, did not seem much bothered by the progressives’ national undertakings, often permitting administrative discretion and the delegation of legislative power to bureaucrats in the executive branch.24 To be sure, many businessmen and Democrats scorned the new regulation and any hint of the centralization of government. A decade into the twentieth century one could find a handful of critical intellectuals, such as Nicholas Murray Butler, president of Columbia University, denouncing the ‘‘proposals to overturn our form of government.’’ But as Butler himself noted, there was little debate on such matters.25 That would change in the 1930s.

The Roots of American Bureaucracy? While the growth of the administrative state can be traced to the last quarter of the nineteenth century, the singular commitment to the hegemony of the administrative form and its dominance within the American polity emerged only in the 1930s. For the first time, the federal government came to be associated primarily with administering and managing rather than legislating and judging. Administrative norms and practices—expertise, informal rule making as opposed to formal law, appointive rather than elective officials, the concentration of executive power, and hierarchical

Leviathan and Its Discontents

23

rather than deliberative decision making—pervaded the centralized state. All of these elements predated the New Deal, but a difference in degree can become a difference in kind. A search for the ‘‘origins’’ of the administrative state can obscure the degree of change by downplaying the state’s shifting contours and the state builders’ commitment to seeing their project through. The testimony of contemporaries points to the existence of both these factors in the 1930s. One may debate precisely what changed with the New Deal, but this much is certain: New Deal boosters and skeptics alike believed they were witnessing a transformative moment in American political development when effective political rule had come to be equated with administrative governance—hence its ‘‘hegemony.’’ The administrative state had become a full-fledged leviathan; its emergence represented the first major achievement of statist liberalism as well as its first major challenge.26 Precipitating the new liberal concerns about the administrative state was not only the growth and nature of that state, as it butted up against existing liberal democratic norms of democratic consent, the rule of law, and individual autonomy, but also the technocratic nature of the ideology that supported it.27 For ardent New Deal partisans, the state was essentially self-justifying, in part because they saw it as less an overbearing commander than a public servant fending off economic and geopolitical crises and fulfilling the public’s needs. If bureaucracy was required to effectuate the state’s new posture, then it was justifiable. Under this form of governance, New Dealers insisted, ‘‘administrative action is no longer an expression of the sovereign state oppressing individuals, through ‘bureaucratic’ action, but is the characteristic expression of the modem state seeking the welfare of the individual and of the society of which he is a component part.’’28 Those who thought otherwise, those who saw threats to individual autonomy, democratic institutions, and legal norms, were reactionaries who had failed to change with the times. They misunderstood the form that the national government needed to assume in order to realize its primary function: to provide for and to protect the public. The problem, as the sympathetic critics saw immediately, was the state as a sovereign commander, as a self-interested bureaucracy insulated from the people, and as a system bound by a Constitution had not disappeared. Instead, its existence in these guises had been occluded by the crisis politics of the New Deal and war.29 The New Dealers also looked to the totalitarian bureaucracies of Europe to rationalize their new state. Many New Deal state builders were frankly

24

Chapter 1

impressed with the achievements of the fascist and communist states, in particular the devotion and skill of their civil servants and ‘‘the spectacular efficiency of dictatorship.’’30 The political scientist Marshall Dimock, writing of what he called ‘‘administration in the ‘Geist State,’ ’’ confessed his admiration for the ‘‘internal control’’ exhibited by German and Soviet bureaucrats. ‘‘The best features of this system—its devotion, spirit, and selfdiscipline—may, while avoiding its excesses, be emulated with great benefit to American administration. The corporative principle, the theory of selfdiscipline, and the stimulus of a constructive philosophy of government are controls which are likely to prove of increasing importance.’’31 This was so because economic and social problems were becoming more complex, more technical, and more urgent. Germany and ‘‘the Prussian example’’ stimulated the greatest interest within the disciplines of political science and public administration, which served as intellectual clearinghouses for the New Deal state. Germany was instructive because, among other reasons, it was the ‘‘the main breeding place’’ of the civil service to date.32 Some observers even distinguished between the well-developed bureaucracies of Italy and Germany and the haphazard bureaucratic structure of the Soviet Union, which was suddenly and awkwardly catapulted into the modern world.33 Indeed, the focus on Germany in particular, indicated by the rather sudden appearance in the early 1930s of English-language studies of German bureaucracy, is notable.34 In 1932, Political Science Quarterly began a series on German political institutions, whose inaugural article examined the relations among the different branches of the German government. The German bureaucracy was inhabited by scores of technicians and managers mobilized toward achieving a maximally efficient state dedicated to carrying out the ideological aims of dictatorial rulers.35 This seemed a model worth considering. For most Americans, including political and intellectual elites, the need to stave off economic disaster and to stem economic privation afforded a measure of latitude to the country’s state builders, a latitude that traditionally accompanies political change under emergency conditions.36 But the newly centralized and bureaucratized state was never without its detractors. Indeed, the uncertainty as to what the new American state meant for the fate of constitutional democracy—its legitimacy—was palpable in a variety of tracts, from the technical to the more broadly critical. Five years into the New Deal, the jury was still out: ‘‘Surely for a politically gifted people, there is no necessary inconsistency between administration by experts and

Leviathan and Its Discontents

25

popular government,’’ wrote one social scientist. ‘‘But for the United States this proposition is still to be proved.’’37 Even so, critics of the new form of governance faced a formidable state and an even more formidable defense of that state by the New Dealers. Both dictated the ways in which the sympathetic critics in particular would shape their arguments for decades to come.

The New Administrative State Commenting on the quick fix that administrative mechanisms represented, the legal scholar James Landis observed in 1938, ‘‘As rapidly as—indeed, sometimes more rapidly than—causes could be isolated and problems defined, administrative agencies were created to wrestle with them.’’38 Material deprivations aside, it was almost certain that numerous problems would be found, given how Roosevelt defined the crisis facing the country from the moment he took office in 1933. In his first inaugural address, Roosevelt famously declared a domestic ‘‘emergency’’ against which he would ‘‘wage a war’’ through the use of ‘‘broad Executive power.’’39 Although the greatest exercise of executive power occurred during World War II, in that same speech Roosevelt announced that he would arrogate to himself kinds of power heretofore unheard of for an American president. He announced his intention to meet the emergency conditions of the Depression by assuming broad plenary powers, including the use of the executive order, the establishment of emergency departments, and the unchecked staffing of administrative agencies. However, despite these early indications, the degree of the concentration of power in the executive and the reaction to it were not fully evident until the period known as the Second New Deal.40 In the name of efficiency and urgency, the war that Roosevelt proclaimed would be conducted administratively. The zeal for administrative solutions endowed administrative governance with a nearly autonomous status—‘‘coordination for coordination’s sake’’—as one observer would later describe this way of thinking.41 Indeed, for Roosevelt and his fellow ‘‘administrative liberals’’ the shift to an executive-administrative state from one with competing power centers in Congress, the courts, and the executive could not transpire quickly enough.42 It may have been a another Roosevelt who called ‘‘executive power . . . the steward of the public welfare,’’

26

Chapter 1

but it was Franklin D. Roosevelt who crafted a newly rationalized, centralized, and hierarchical state out of the fragments he inherited from Herbert Hoover and the progressives.43 Administration became the most important, and most utilized, aspect of the national government. New agencies regulated the economy and doled out services. Some, such as the Social Security Administration and the United States Housing Authority, were built directly into the executive branch. Dozens of temporary institutions, such as the Public Works Administration and the Civilian Conservation Corps, supplemented these lasting agencies. Most strikingly, Roosevelt oversaw the proliferation of controversial independent regulatory boards and commissions, which were accountable to no single political branch. These included, for example, the Securities and Exchange Commission and the Federal Communications Commission and were derided as ‘‘the headless fourth branch of government’’ by the president’s Committee on Administrative Management.44 Power emanated primarily from the executive and secondarily from Roosevelt’s appointed civil service minions, whose numbers increased more than sixfold during Roosevelt’s presidency and by 50 percent before the United States became involved in World War II.45 By the mid-1930s, sixty new agencies, boards, and commissions had been created (eventually there would be more than a hundred), staffed by a coterie of expert administrators who numbered more than one million by 1940, well before the United States entered the war.46 With the help of interest groups and a growing staff of experts, the executive branch, and the president in particular, became powerful initiators of ‘‘executive legislation’’ and solidified the White House as the main force behind the national budget.47 One noteworthy example of the president’s new legislative powers was the Economy Act of 1933. On its face, this law sought to address the gaping budget deficit by reducing government expenses, principally through reductions in the salaries and pensions of federal employees, both civilian and military. The novel aspect of the bill was that it endowed the president with the authority to determine whether pensions would be paid to veterans. In other words, it gave the president the power of the purse. Yet few people in Congress, or otherwise, objected. This response may be attributed to the nature of the law as a temporary emergency expedient (it expired in two years) and to its shroud of fiscal conservatism. Roosevelt wanted desperately to balance the budget, and in the midst of a flurry of spending measures aimed at reducing unemployment and increasing consumer spending power, the Economy

Leviathan and Its Discontents

27

Act of 1933 was one of the few initiatives that cut in the opposite direction. For the time being, even a soon-to-be critic of the New Deal such as Walter Lippmann thought the increase in executive authority to be salutary: The ordinary procedure is for the legislature to order the payment of money for pensions, public works, subsidies and what not. Thus the legislature has the initiative in spending, and usually the expenditure is mandatory. This is a vicious system which has been abolished in all advanced democracies. For experience has shown that if a representative assembly has the initiative in spending it ceases to exercise any check upon expenditures. The individual representative has two contradictory functions which he cannot successfully perform at the same time. He is supposed, as the representative of all the citizens, to control expenditures. But since he also has the power to initiate expenditure, he soon becomes the representative not of the whole body of citizens but of those citizens who are organized to demand appropriations. The proper system is one in which the initiative for expenditure comes from the executive, the check upon expenditure from the legislature. . . . This, as I read it, is the principle of the new veterans’ bill.48 Establishing firmly the expansion of executive power, the law also permitted the president to engage in executive reorganization and consolidation, though most of the actual reorganization of the executive branch was accomplished much later and under a different law. That law was the Reorganization Act of 1939, which was passed only after earlier failed attempts at stronger legislation that would have permitted the president to establish and eliminate executive agencies at will.49 The impetus for this legislation also came from the Roosevelt administration, and Congress initially raised a number of objections, mainly in response to interest groups that stood to lose influence through the consolidation of power. Bureaus and agencies that stood to be eliminated or subjected to centralization also protested. However, even the much-diluted law that was passed by Congress in 1939 was no small measure. It created the Executive Office of the President, which consolidated the White House Office, the Bureau of the Budget, and the National Resources Planning Board, established to engage in public works planning and large-scale research, under a single presidential roof.50 Despite the objections to earlier versions, once the law was adopted, the

28

Chapter 1

reaction to this transfer of power was surprisingly sanguine, at least outside of the South, which had already managed to considerably weaken the legislation.51 The dominance of administrative governance was not just a matter of increased bureaucracy, rule making, and expertise. Administrative entities engaged not only in the implementation of policy, normally associated with the executive branch, but also in adjudicative functions (in the form of adversarial hearings) and in policymaking duties (in the form of rule making and the promulgation of regulations). It was these activities, in fact, that usually landed the Roosevelt administration in court. Undoubtedly, part of the reaction against New Deal policymaking and administrative adjudication was a simple case of institutional jealousy by the judiciary. After all, by design much of the enabling legislation for these new boards and commissions did not contain provisions for judicial review of administrative acts.52 The absence of such provisions bespoke the desire to move quickly and efficiently on regulatory matters. Judicial review was a laborious and slow-moving process, and the federal courts in this period were conservative institutions, not only ideologically but also formally. Judges saw their duty as one of holding fast to precedent against the whims of legislative and executive leadership. Governmental institutions with putatively distinct functions witnessed a substantial reduction in their ability to check and balance each other.53 The administrative state under Roosevelt saw a sharp diminution of the role of law and legal norms in public life and new forms of cooperation, at times verging on collusion, between powerful interest groups and federal agencies. Whatever the considerable power the Supreme Court had during the early New Deal, administrative governance itself was, to a large degree, antilegalistic: it sought greater flexibility in rules and regulations rather than laws, possessed greater autonomy from lawmaking bodies, and substituted less rigid adjudicative processes and institutions for the more constraining procedures of courts. Despite these significant changes in the American state, indeed in the structure of American constitutional democracy, most advocates of the New Deal assumed that the new mode of governance needed no justification beyond its practical effects. There was a crisis of structural proportions, and administrative governance was the best way to meet it based on the capacity of administrative mechanisms to solve the problems that needed to be solved.54 Structural explanations for the changes in how the country was to be run claimed an elective affinity between the administrative form

Leviathan and Its Discontents

29

of governance and a modernized economy. New Dealers justified the expansion of the administrative state with an essentially circular logic: Because their policy objectives were administrative in nature, administrative institutions were best suited to accomplish them. No other entity performed as rationally and as effectively the planning, oversight, and adjustments necessary for an interventionist service state.55 The same logic prevailed during the next crisis faced by the Roosevelt administration, World War II. This reliance on crisis government strained the state’s institutional legitimacy. New Dealers had little to say about this emerging strain, or they failed to recognize its existence. Yet it would have significant consequences for the future of statist liberalism.56

The New Administrative Ideology: A ‘‘Truly Liberal Administration’’? The consequentialism of New Deal politics—the ethos of ‘‘whatever works’’—left little room for a principled defense of the emerging administrative state, while at the same time upsetting widely held ideas about governmental power and the individual’s relationship to it. However, the New Dealers did construct an administrative ideology, or political rationality, that aimed to justify and explain, on instrumental grounds, the expanding and increasingly complex state.57 Though marked by internal contradictions, this ideology was perhaps the most coherent and consistent ideological formation in an era known mostly for its experimentation and contradictory goals. Many of its discrete elements had been developed during the preceding forty years. However, until the 1920s, the ‘‘science of administration’’ was in its infancy in the United States, and progressives tended to look to Europe where administrative thought was much further along, but often not relevant.58 The 1930s brought the detailed development of this administrative ideology, along with its systematic application, ardent support by a wide array of actors, and the arrival of a disciplinary concomitant, the field of public administration. Administrative ideology blended technocracy, instrumental rationality, and idealism in awkward combinations. This statist rationality stressed, on the one hand, the importance of efficiency, neutral management techniques, and centralization to perform the complex regulatory, planning, and service functions of the newly activist state, and, on the other, the removal of impediments to effective governance, such as constitutionalism,

30

Chapter 1

the rule of law, and even at times politics itself. Locating this ideology is not as easy as one might think. Adherents possessed very different programmatic reasons for supporting it—including a devotion to planning, cartelization, corporatism, public regulation of private entities, and expanding the welfare state.59 Yet if one looks beyond the programs to their rationales, broad similarities come into focus. Three main tenets informed this ideology. First was the idea that administration was a science, conducted by politically neutral or nonpartisan experts. Second, as a corollary, these expert administrators needed relative autonomy, that is, discretion, to do their jobs—largely unhindered by judicial review, the separation of powers, or any other constraints normally placed on political officials in a constitutional democracy.60 The final tenet claimed that a strong executive should act as the supermanager, providing overall direction to policymaking that was to be housed in administrative agencies, public corporations, and independent boards and commissions. At times, these three prongs of administrative ideology cohered into a technocratic vision of a pragmatic, efficient state. In practice, however, they often chafed against one another, creating tensions involving representative versus expert government, bureaucratic discretion versus presidential (political) control, and efficiency versus democratic input.61 In fact, it was these tensions that often formed the basis for liberal critiques of the administrative state. Driving this ideology was an evolving academic infrastructure devoted to the ‘‘scientific’’ study of administration. While scholarly interest in administration originated in the second half of the nineteenth century and became more widespread during the Progressive era, it matured only under the New Deal, when changes in and the elevation of a centralized national government came to be thought of as permanent and inevitable. The 1940s was an even more robust decade for the study of public administration, when sociologists, many of them German e´migre´s who had been influenced by Max Weber, joined political scientists and legal academics in contributing their own studies, and when the administrative state could no longer be dismissed by residual skeptics as a contingent response to the emergency conditions of depression and war. By the late 1940s, no other field could boast such a diverse range of contributors as public administration. Virtually every major social scientist wrote on the subject. In the 1930s alone the Social Science Research Council reorganized its nascent Committee on Public Administration and deemed its work of

Leviathan and Its Discontents

31

highest importance within the field of political science; the Public Administration Clearinghouse was founded in conjunction with the University of Chicago, along with the Bureau of Public Administration at the University of Alabama; and in 1939, the American Political Science Association helped to launch the Society of Public Administration, which drew together specialists in the field who were more practically oriented. Then came the first major American academic journal in this nascent discipline, the Public Administration Review, which published its inaugural issue in 1940 under the editorship of Leonard D. White, the well-known student of public administration.62 The journal was the product of an organization now known as the American Society of Public Administration and contained articles by academics who were not serving in government—mostly political scientists—as well as those formerly or currently connected with the Roosevelt administration, such as Rexford G. Tugwell.63 If Progressive-era reformers had been torn between an ‘‘administered society’’ and Brandeisian homilies to small-scale private enterprise and gestures toward direct democracy, between the religion of centralization and managed efficiency and what Brandeis called ‘‘the false God of bigness,’’ by the mid-1930s it was clear, as then chairman of the Securities and Exchange Commission and later Supreme Court Justice William O. Douglas put it, that ‘‘administrative government is here to stay.’’ While the Brandeisian vision remained, it no longer competed equally with the centralized administrative paradigm; in fact its adherents often opposed New Deal initiatives. However, like their progressive forebears, scholars of politics and administration borrowed generously from the ideas of organizational and management technique pioneered by industrial and technocratic elites in the second decade of the twentieth century. But they did so with a newfound systematicity and self-consciousness. It was the New Dealers, not the progressives, who developed a full-blown science of public administration, the key to ‘‘securing economic stability and social peace.’’64 Changes in the legal field created the space for this new discipline. The rise of the science of administration coincided with the fall of the science of law. By the tenets of legal realism, a jurisprudential school that emerged in the 1920s, the law was not, as orthodox legal formalism would have it, a scientific endeavor determined by logical inferences from abstract principles, but an empirical product of social forces and judicial psychology and behavior. By the mid-1930s, many legal realists began to express skepticism that a social scientific approach to the law, which they had hoped would

32

Chapter 1

replace the logic of legal formalism, could be a reliable predictor of legal outcomes. Yet the legal realists, who dominated the ranks of New Deal lawyers throughout the 1930s, were reluctant to reduce legal and administrative governance entirely to politics.65 Those in government resorted to a pragmatic approach to the over-politicization of law and administration and to judicial unpredictability. Among legal scholars, a few turned to natural law; others invoked the putatively neutral science of administration. Here, however, the social scientists, who shared the legal realists’ concern over the tyranny of politics in governance, were unrivaled in their enthusiasm. In fact, they had been studying ‘‘administrative law’’ since the early twentieth century while the legal profession clung to its bias against ‘‘noncourt’’ law.66 For the first two decades of the century, the legal profession conceded the field. But by the 1930s, administrative law began to emerge from its shell, becoming institutionalized in the 1930s as a legal specialization and, eventually, as a standard part of the law school curriculum alongside legislative and judge-made law. Even then, its acceptance was not guaranteed. Many law schools strongly resisted a thematic approach to the law, and one that involved studying non-legal institutions such as administrative agencies. In 1933 there were still only three major casebooks on administrative law.67 ‘‘Administrative law has not come in like a thief in the night,’’ Felix Frankfurter famously wrote in 1938. ‘‘It is not an innovation; its general recognition is.’’68 Even as law schools took on administrative law as an area worthy of attention, however, the broader subject of public administration became increasingly identified with the social sciences. For the moment, social scientists won the battle as the caretakers of the discipline of public administration, while administrative law settled into a technical niche. So technical, in fact, that by the late 1930s, the American Bar Association, long a champion of establishing a separate administrative court to regularize and centralize review of agency decisions, dropped its support ‘‘largely because of the opposition of the bar of specialized courts to any tribunal which would merge the tribunals in which they were interested.’’69 Administrative law courts had produced their own specialists whose interest lay not in protecting administrative law but in preserving their distinct area of focus within the broader field. While the legal profession tussled, the partisans of the New Deal state harnessed the science of administration to justify the administrative state’s

Leviathan and Its Discontents

33

unprecedented autonomy and reach. These qualities allowed the government to bring much-needed services and relief to individuals, but with them also came new constraints on Americans’ lives and on civil society generally. The need for an efficient and competent administration to meet emergency conditions became a principal rationale for the departure that even many New Dealers felt their administrative government had taken from a more traditional American constitutional approach to governance. As Assistant Secretary of Commerce John Dickinson wrote in the American Political Science Review in 1934, ‘‘Under our form of government, it is only for extraordinary measures, or in extraordinary times, that the Administration assumes legislative leadership, or, in other words, becomes the formulating agency for proposals to be considered and decided by Congress. The recovery statutes fall within this extraordinary class of legislation for which the Administration has assumed leadership.’’70 This concession to the extraordinary was only one of administrative ideology’s rationales of expedience. But it was a popular one. It appealed to the public’s desire that the administration do something to alleviate the economic hardships and social uncertainty that so many Americans were facing. Unfortunately, it forced administrative liberalism to rest upon the existence of ‘‘extraordinary politics,’’ in turn a recipe for a perpetual emergency. A more structural explanation suggested that administrative governance would remedy the flaws of American constitutionalism, flaws that could prove fatal to a modern economy and polity. These flaws were thought to center on the division of power and the lack of a proper hierarchy of authority within the state. Hence the ‘‘old shibboleth’’ of the separation of powers, the anemic power of the executive, the fractiousness of congressional and party politics, and the judicial review of legislation all came under attack.71 Indeed, the eagerness with which academic lawyers and political scientists proposed alterations to the Constitution during the 1930s, and even a radical restriction of the role of law in the state, has been underappreciated by historians, who have tended to focus on the president’s abortive effort to remake the Supreme Court.72 At its most extreme, this attack on the separation of powers, and the overall devaluation of law in this period, led to hubristic calls for the radical amendment of the Constitution, or, indeed, even its destruction altogether.73 The legitimacy of the Constitution was up for debate to an extent not seen since the Civil War. One proponent of radical constitutional change proposed a joint cabinet of the executive branch and congressional

34

Chapter 1

members and called for amendments to the Constitution that would ‘‘give the President the right to dissolve Congress and the Presidency and to call a general election of all three [including both houses of Congress] whenever a deadlock arises between Congress and the Joint Cabinet, and, second, to make the terms of the Senate, House, and Presidency of the same length— say six years from the date of each election.’’74 Roosevelt bowed to this trend when he considered amending the Constitution in order to compel the Supreme Court into a more sympathetic posture. To increase the authority of the presidency, beyond the powers that Roosevelt had already assumed in the early 1930s, was perhaps the most frequent appeal by those who construed the Constitution as more of an annoyance than the ultimate source for the rule of law and the legitimator of individual rights.75 Implicitly, the idea that law possessed a semiautonomous status not entirely under the sway of the political system threatened the virtually complete independence thought necessary for expert government. This explains the veritable explosion of proposals for constitutional change, which went well beyond limiting the reach of judicial review. The most influential political scientist to call for far-reaching amendments to the Constitution to increase the powers of the executive was William Y. Elliott of Harvard, a politically heterodox figure who was nonetheless broadly supportive of the New Deal. In 1935, Elliott suggested that the Constitution be altered ‘‘to allow the president the right to dissolve the House of Representatives and test public opinion by one general election, at the President’s discretion during his term of office.’’ And in the area of foreign policy, the ‘‘ratification of treaties by the joint resolution of a majority of both Houses seems the minimal change necessary’’—necessary, that is, to give greater power in these matters to the executive.76 The same year that Elliott’s book was published the political scientist James Hart urged that the president be given much greater control over Congress. ‘‘The President should be strengthened as the focal point of all policy determination,’’ he wrote. ‘‘His treaties should be subject to the approval of a majority of both houses. On the legislative side, his term of office should coincide with those of Senators and Representatives, except that he alone should be empowered to terminate the terms of all, and appeal to the electorate in the general election.’’77 Though abstruse, Hart’s ideas would have entailed broad changes to the Constitution, a fact that Hart treated with surprising equanimity. Elliott’s and Hart’s proposals were indicative of the degree to which the Constitution was seen as malleable,

Leviathan and Its Discontents

35

even largely expendable, throughout the 1930s and early 1940s.78 The culmination of this view came in the debates over a constitutional amendment to change the size of the Supreme Court, which was ultimately pushed aside in favor of the ill-fated ‘‘court-packing’’ plan. The political scientists’ dream of a reworked Constitution was bolstered by the legal realists. Perhaps the best exemplar of this ill-defined group— and, some say, of legal realism generally—was Karl Llewellyn. Less than a year into Roosevelt’s first term—and before the Supreme Court had done its greatest damage to the New Deal program—Llewellyn wrote in the Columbia Law Review that the old written Constitution had outlived its usefulness and had ceased to exist. In its place was a new living Constitution that was shaped by everyday practices of various social and political entities.79 By this stunning assertion, Llewellyn meant that the text of the document no longer guided the new administrative state, for it could not. Nor did the Supreme Court contribute much to constitutional interpretation and thus to the Constitution, though it did apparently contribute enough for Llewellyn to propose, anticipating Roosevelt himself, several significant changes to the Court: that deeming a statute unconstitutional require a two-thirds vote by the Court rather than a simple majority and that the Court be scrutinized in the area of judicial review. If not the Court, then who, or what? Llewellyn identified three ‘‘categories of people’’ that, in effect, contributed to the Constitution and allowed it to function: ‘‘specialists in governing . . . interested groups . . . [and] the general public.’’80 All of this was partly the simple frustration that the Court was not interpreting the Constitution to these thinkers’ liking and, more to the point, seemingly according to the arbitrary personal preferences of the judges. But here Llewellyn went much further and, as with the political scientists, effectively questioned the legitimacy of the Constitution itself, at least by any conventional understanding of the term. For the most part, proponents of a large and unfettered administrative state focused not on the Constitution per se but on constitutionalism, the idea of government limited by the rule of law, by judicial review, and by other checks and balances, all of which was legitimated in the last instance by the Constitution itself. New Deal governance was, in James Landis’s words, an ‘‘answer to the inadequacy of the judicial and legislative processes,’’ and ‘‘by some other method than simply increasing executive power’’ (although there would be plenty of that as well).81 There was as much an ‘‘administrative revolution’’ in the 1930s as a constitutional one.82

36

Chapter 1

The administrative ideologues invoked scientific expertise, state autonomy, and executive power as the three rationales for their administrative ‘‘revolution.’’ A close examination of each tenet reveals the tensions that arose within liberal thought in response to the bureaucratization of the central state.

The Science of Administration and the Rule of the Expert For most of its enthusiasts, administration was thought to be a science. Scholars studying it and civil servants practicing it assumed that universal scientific principles existed that governed administration everywhere. These principles informed a rational and objective method of administration that knowledgeable government officials could apply to statecraft: ‘‘Public administration is not primarily a self-contained entity . . . it is simply a means, a tool by which problems of society can be solved.’’83 On this theory, the purpose of public administration was efficiency itself, and substantive values played little or no role in administrative governance. Indeed, Enlightenment-inspired instrumental rationality found its deepest expression in the bureaucratic state. This was Hume’s Enlightenment, however, not Kant’s: the judgment of individual experts rather than agreed-upon rules for political action motored the administrative state. The solution to modern problems, wrote the law professor Ralph F. Fuchs, ‘‘requires the intuitive judgments of qualified officers, whose mental operations cannot be reduced to rules.’’84 This stress on the scientific method led, in turn, to a borrowing of concepts and practices from industrial America and with it the erasure of any theoretical distinction between the public and private realms, much as Weber had foreseen.85 According to organizational theory, administration was a form of governance befitting large, complex organizations generally, not political organizations in particular. Organizational theorists adopted a highly formalistic approach to problems of governance referring, for example, to ‘‘canons of efficiency’’ that were said to apply equally to governments and churches, civil society and the state.86 Conversely, while government was deemed just one form of organization among many, private corporations also lost their distinctly ‘‘private’’ identity since control over these organizations had effectively moved from private owners to a class of ‘‘managers’’ who inhabited a realm that was, seemingly, neither public nor private.87

Leviathan and Its Discontents

37

With ‘‘organization’’ and ‘‘management’’ as the watchwords of administrative ideology, it should not be surprising that advocates of public administration considered Frederick Winslow Taylor to be one of the first expositors of administrative technique. The administrative process, as this form of governance was often called, was akin to the managerial process of industrial America in its search for efficiency and maximization of results. In each case, efficiency meant the conservation of time and money in and the streamlining and hierarchical coordination of the production process: the only difference was that industry produced goods, while government produced public policies. Despite the industrial world’s contributions to the Depression, administrative enthusiasts such as James Landis saw the business world as a more appropriate model for the administrative state than any public arrangement. The latter were hamstrung by an anachronistic Constitution, a backward-looking judiciary, and divided, partisan, and inexpert legislatures. The former was modern and efficient and devised its own rules appropriate to its goals—instrumental rules. As Landis wrote in his widely read book The Administrative Process, As the governance of industry, bent upon the shaping of adequate policies and the development of means for their execution, vests powers to this end without regard to the creation of agencies theoretically independent of each other, so when government concerns itself with the stability of an industry it is only intelligent realism for it to follow the industrial rather than the political analogue. It vests the necessary powers with the administrative authority it creates, not too greatly concerned with the extent to which such action does violence to the traditional tripartite theory of governmental organization. The dominant theme in administrative structure is thus determined not primarily by political conceptualism but rather by concern for an industry whose economic health has become the responsibility of government.88 The administrative state was, in this view, simply the latest form of organizational challenge for modern Americans. That it was a form of public authority mattered little. The analogy with the corporate world also had tactical appeal. New Dealers employed it to meet the growing criticisms that the state was favoring certain ‘‘special interests’’ over others, or at the expense of the ‘‘public

38

Chapter 1

interest’’ at large.89 The parallel served as a reminder that private organizations faced their own difficulties, and hence would not necessarily offer a better alternative to the state as purveyors of society’s resources. It also implied that there was a degree of inevitability to coordination problems in any large and complex entity.90 Only over time, and with experience, were the differences between large public and private organizations fully acknowledged or appreciated. In fact, an administrative state modeled on the corporate capitalist world was a unique historical development; so too was the pervasiveness of the values of technocracy, efficiency, and expertise. As a result, there were few precedents from outside the United States upon which to draw.91 The emphasis on efficiency, moreover, suggested that the assumptions of the bureaucratic state were gleaned from thinking about the managerial, not the consumer, culture of capitalism. And since on many occasions citizens are effectively the ‘‘consumers’’ of government policy, the bias toward management in government was yet more evidence that administrative ideology showed little concern with empowering citizens.92 Hence when the field of ‘‘public administration’’ came to fruition in the 1930s, it eschewed the ‘‘public,’’ that is the politics, in public administration, instead focusing on the importance that administration as such had assumed in the realm of the state. The ‘‘ends’’ for which bureaucratic structures would or should be used were consistently ignored by the adherents of administrative ideology. So complained Gerth and Mills in 1942: ‘‘Who will be at their tops, how . . . might [they be] overthrown, and what movements will grow up into such structures—these are not considered; they are swallowed in considerations of the form of organization, the demiurge of history, the ‘managerial world current.’ ’’93 Even with the establishment of a distinct field of public administration, analogies to the corporate world persisted, both in academic circles and within the Roosevelt administration. They formed the basis for a discourse of arid technocratic management, which sat uneasily alongside Roosevelt’s sweeping, normative calls for freedom and equality.94 Phrases such as ‘‘ ‘concentration of authority and responsibility,’ ‘functional integration,’ ‘direct lines of responsibility,’ ‘grouping of related services,’ ‘elimination of overlapping and duplication,’ and ‘need for coordination,’ ’’ weighed down turgid reports about administrative reform in government just as surely as they echoed through offices at the Ford Motor Company.95

Leviathan and Its Discontents

39

At the same time that supporters of administrative ideology drew inspiration from the world of business, they sought to regulate that world. They turned regulation into an extension of corporate efficiency, rather than unwanted interference with business operations, as much of industry saw it. Indeed, administrative ideologues viewed regulation as a form of ‘‘external,’’ or public, management of corporations that would work in tandem with internal control. As such, it required knowledge of the business’s operations.96 ‘‘The exercise of expert judgment by enforcing officials is implicit in the framework of regulatory legislation,’’ proclaimed the scholar Marshall E. Dimock.97 At their most extreme, the advocates of a science of administration reasoned that an administrator was a regulator and a regulator was someone who knew about managing the particular industry he (invariably) was helping to regulate. As a corollary, many exponents of the administrative state believed that those who supported regulation would favor a state in which administrative action was paramount, while opponents of regulation would look to the legislature to realize their agenda. They became convinced that administrators under Roosevelt were not mere political lackeys but professionals carrying out the functions of their organization. If no special significance attached to public institutions, the same could not be said of the notion of a ‘‘public interest.’’ This progressive idea survived an onslaught of pluralism in the early years of the New Deal, and in the writings of critical liberals into the 1940s. But it did not last long in the hands of the New Dealers.98 More important, the ‘‘public interest’’ was not much of a publicly minded concept to begin with. New Dealers invoked it not in contrast to individual interests or selfishness but as an alternative to group interests. The ‘‘public interest’’ was, in a sense, the other side of the corporatist bargain: government institutions would allow certain groups or organizations entre´e into the New Deal state, but no one group or organization would be favored, or at least appear to be favored. After all, the administration’s stated goal in light of the economic emergency was to help the community at large, not any particular industry or interest. One impetus for invoking the notion of the public interest was the fact that the crises of Depression and war were decidedly society-wide affairs. New Deal partisans did their best to include as many different sorts of people as possible under the rubric of the public interest. For example, Roosevelt parsed the business community into greedy ‘‘plutocrats’’ and

40

Chapter 1

what he called ‘‘the constructive, forward-looking’’ industrialists.99 Moreover, the idea of the public interest drove the quest for impartial administrators who, like Madison’s senators, could rise above factious politics. For the New Dealers, however, the primary quality sought in public-minded men was expertise, not Madison’s virtue. Remarking upon the preference for employing ‘‘economists, sociologists, and political scientists’’ in government (rather than the engineers and lawyers who had previously populated its ranks), one student of public administration noted that ‘‘it was due to the feeling that these individuals drawn from universities or research organizations would be more concerned for the public or general interest and less under the influence of the special types of experience and organization that had become so discredited as their shortsightedness was revealed by events’’—that is, irresponsible corporations.100 As John Dewey had counseled, the key to expertise was experience, from which the trained mind could draw inferences about the best course for pursuing stated goals. The industrial psychologist Elton Mayo had dubbed such a figure ‘‘administrative man.’’ More than Congress, more than political parties, administrative agencies were thought to represent the public as a whole.101 The problem was that talk of protecting the public interest or common good increasingly ran up against what Dewey called ‘‘the fact of pluralism.’’ Interest groups multiplied with the complexity of society and the growing regulatory and service functions of government. In addition, the structure of the New Deal state and congressional legislation encouraged the proliferation of single-minded organizations, in two ways. First, agencies usually focused on a particular economic sector (agriculture, labor, etc.); second, legislation under the New Deal often built in a role for private organizations in the execution of public policy. For this reason, critical liberals trained their attention on group favoritism and the lack of representation.102

Politics and Law: Obstacles to Administration? Indeed, as administrative entities made policy, developed regulatory plans, and adjudicated disputes between the government and private parties, proponents of the administrative state welcomed the accompanying reductions in the role of Congress, political parties, and the courts. Adherents of the administrative process saw legislative and party politics as messy and frankly too political, specifically too democratic—requiring deliberation and compromise—for the technical tasks at hand. Administrative ideologues

Leviathan and Its Discontents

41

preferred the controlled collective action of corporatism to the discordant, though cooperative endeavors of the legislature.103 ‘‘The representative system has been a symbol of democracy,’’ lamented the political scientist James Hart without a hint of irony. ‘‘Congress is all too concerned with the securing of local favors, and succumbs all too readily to the demands of organized minorities. A multiple assembly debates one measure at a time, and can carry through a comprehensive and correlated national program only when subjected to a strong leadership. The inadequacy of the legislative method in the face of the problems of twentieth century government is further attested by the tendency to delegate ordinance making and quasijudicial functions to administrative organs.’’104 Technocrats, if a rather soulless bunch, were not blind carriers of crassly political interests, but careful, scientific analysts who strove to maximize effective governance. This made them more faithful servants of the public interest than elected representatives. At the same time, the notion that Congress was a potential haven for antiregulators implied that there was an intrinsic tension between the function of lawmaking and the function of regulating or administering. Perpetuating the problematic separation of powers was the rule of law ideal, perceived by those who embraced the administrative process as perhaps the greatest obstacle to effective administrative governance. In its American variant, the commitment of the rule of law not only gave the courts the final word on policy matters but also prescribed strict legal norms for conflict resolution—adjudicatory norms—and predictable, universal (or impersonal) rules of the game. Advocating for restrictions on the rule of law, adherents of the administrative orthodoxy complained that, at its most general, the law set ‘‘limits to the actions of administrative agencies’’ and was ‘‘the principal cause of government red tape.’’105 These ideas about limiting the reach of the law, it must be said, hailed less often from lawyers than from the increasing number of social scientists inhabiting or studying the administration. In their hands, law was no longer, and ought not to be, the fundamental principle underlying and legitimating the American state. Rather, reason alone was ‘‘the unifying element in public administration.’’106 The external and old-fashioned rights-based legal order was a decaying corpse that served only to distract social scientists and other technicians from policymaking and execution. Although no one called for unlimited administrative power, many thought Congress should delegate much if not most of its policymaking authority to administrative agencies or to their overseer, the president. The

42

Chapter 1

resultant administrative initiatives, including the full-scale drafting of laws, came to be called ‘‘administrative legislation’’ over which Congress could merely exercise a ‘‘legislative veto.’’107 Agencies also made law by issuing rules and regulations broad enough in scope to resemble policy directives.108 Rather than an appropriation of Congress’s lawmaking powers, policymaking by administrative bodies was considered an important functional development within modern governance. What, after all, was to prevent legislators from setting regulatory standards according to the wants of the interest group (or constituency) that wielded the most power rather than pursuing those that were most effective and beneficial to the public as a whole? Interest groups had made such significant inroads into the process of lawmaking that the very system of democratic representation seemed to be breaking down.109 For a variety of reasons, then, it made more sense for administrative agencies to make policy than Congress: ‘‘it saves the time of the legislature; it makes possible regulation of highly technical matters by those who are competent to handle them; and it makes the law flexible.’’110 For many believers in the administrative orthodoxy, it was not the legislative branch that constituted the main obstacle to the optimal functioning of the interventionist welfare state, but the judiciary. After all, much of the New Deal, and later the war effort, was predicated on Congress effectively handing over lawmaking power to the president (who, then, at times delegated his authority to private groups). To the New Dealers, the federal courts appeared solely as an obstacle to their state-building efforts. While their fears were exaggerated, it is the case that only during the New Deal did the Court decide, for example, that Congress had unconstitutionally handed over its power to the executive. The most notorious anti–New Deal action by the Supreme Court employed just this reasoning about the delegation of power. In 1935, in Schechter, the Court abruptly halted the National Recovery Administration when the justices unanimously held its authorizing statute, the National Industrial Recovery Act, unconstitutional in part because of the law’s improper delegation of legislative power to the executive and indirectly to private groups (‘‘delegation running riot,’’ as Justice Cardozo described it in his concurring opinion), in violation of the separation of powers doctrine.111 Crucially, the Court also rejected the government’s argument for additional power in the face of ‘‘emergency’’ conditions.112 Decisions such as Schechter and Carter Coal set off a new round of attacks in academic

Leviathan and Its Discontents

43

journals and among practicing New Dealers on the process of judicial review.113 Questions about the role of the courts in reviewing regulatory legislation had begun well before the Supreme Court struck down any of the New Deal legislation during the Lochner era. However, both the New Dealers’ commitment to regulation and the apparent change in the court’s position beginning in the early 1930s—when for the first time it demanded clear ‘‘standards’’ from Congress in regulatory legislation delegating large grants of power to the executive branch—made its actions more intolerable to liberal reformers, and seemingly more political than ever.114 Hence Landis, Thurman Arnold, and others now placed judicial review of administrative decisions and congressional legislation alongside legislative horse trading as the principal deterrents to a properly functioning administrative state. Legal academics, traditionally court-centered in their jurisprudence, increasingly considered courts to be atavisms of an earlier age, almost premodern in their institutional purpose. According to the legal realists, not only did judges lack the necessary knowledge for governing a technologically advanced and complex society; they, like congressional representatives, also lacked the impartiality. The judiciary had traditionally performed the role of protecting private property rights. Such action now would only retard the efforts of the state to promote economic stabilization and equity.115 Moreover, by adjudicating individual disputes over property rights, the courts by their very nature maintained the economic status quo. As the enforcers of exclusive private rights, the courts failed as custodians of the public welfare. In this view, to the degree that the judiciary served the public interest at all, it did so only indirectly by establishing rights for individuals to be adjudicated against future claims by others. To administer rights or any other social concern on a case-by-case basis created ‘‘uncertainty as to the law and inequality in its administration.’’116 The case-by-case approach to solving the problems of regulation constituted a rear-guard action. Not only was this not conducive to the proactive administrative process; but, according to men such as Arnold, it served the interests of the regulated, that is to say, business: ‘‘A system of judicial review which cannot become operative until after the damage is done, which pretends to affect only the parties to the suit directly, and the other parties in the same regulatory plan only by inference, which offers no certain and definite way of getting

44

Chapter 1

regulation reviewed in advance of their operation, will tend to isolate courts more and more from the place which they have heretofore had in the administration of our law.’’117 Adjudicating claims through administrative agencies, either by hearings or by negotiation, allowed for more flexible procedures and more timely and nuanced outcomes. This approach was conducive to a complex regulatory and planning state, where conditions were constantly in flux and new situations suddenly arose that had to be addressed quickly by governmental agencies. If not the rule of law or the legislature, what would serve to constrain the actions of administrators? One school of thought held that administrators had little discretion to begin with since they were merely managers executing policy goals determined by Congress and the president. But this was the minority position. Most adherents of administrative governance coveted administration on the very grounds of its policymaking potential and sought no restraints on its actions. Their case was bolstered by the actual workings of American government in which administrative agencies, such as the National Labor Relations Board, were able to formulate rules quickly to address novel situations. Since appointive positions predominated in administrative governance, there was no direct electoral accountability; until the Court deemed otherwise, administrative agencies had, in effect, an extraconstitutional status. However, particularly after 1937, administrative agencies and departments were sanctioned by the courts and the constitutionality of the New Deal was no longer at issue. Nevertheless, administrative entities played by different rules than other sorts of governmental institutions. Not only was the administrative function unanticipated by the authors of the Constitution, there was no coherent body of case law in the 1930s that would make clear the constitutional and legal status of administrative agencies and their practices. This would arrive only later, with the Administrative Procedure Act of 1946, and even then the legal norms guiding the administrative state remained far from stable or well thought out. For much of the New Deal, then, the task for proponents of administrative government was to find an acceptable balance between the broad discretion of the administrator to engage in rule making, standard setting, and adjudication of conflicts and the threat of arbitrary power that this discretion might entail. ‘‘If we would preserve the liberal-democratic way of life,’’ wrote the political scientist J. Roland Pennock, ‘‘we must find means for allowing wide range to administrative discretion without permitting the exercise of power to become

Leviathan and Its Discontents

45

arbitrary or irresponsible.’’118 Although concerns about discretion waned temporarily in the 1950s, they returned in subsequent decades as liberal critics complained that Congress left the bulk of decision making up to unaccountable administrators who did the bidding of the most powerful interests.119 Another answer to the danger of the virtually unconstrained discretion resulting from broad grants of power by Congress to administrative agencies or private groups was that the constraints of ‘‘functional determinism’’ would replace the traditional constraints of law. Every administrator would have his or her place on the federal government’s administrative assembly line, and these closely defined roles would serve to restrain what a government official could or would do. An additional limiting factor, in this view, was the professional training of the administrator, which would result in the official knowing a lot about a fairly narrow set of issues. Who staffed the administrative state and whether they had the requisite knowledge and professional competence, therefore, became of utmost importance. While administration was depoliticized, it was also highly personalized. As one administrative partisan put it, ‘‘Always, at the center, is the question: Is the John Jones who is serving as Health Inspector, or Director of the Water Department, competent to perform his task, in terms of general education, innate abilities, experience, and training in the field?’’ In other words, ‘‘the best defense against the abuse of power is to attract the right kind of people to administration.’’120 By the mid-1930s, administrative expertise had become a highly specified concept with unique disciplinary imperatives and objective markers. This ‘‘triumph of the professional creed’’ within political science was indicated by a proliferation of new fields of study, the arrival of specialized journals, and a plethora of literature about the qualities necessary for the professional public servant in an age of administration.121 But the most important quality was rationality itself, the last of the limiting factors. The rationality of scientific governance would limit the possible actions of administrators. Authority, as Frederick Taylor had noted, comes from the facts.122

The Managerial Presidency The third component of the administrative ideology was a strong executive. In the worldview of public administration, the president was ‘‘the administrator-in-chief,’’ the final authority in and ‘‘general manager’’ of a

46

Chapter 1

hierarchy of technocratic officers who did his bidding as cogs in a welloiled administrative machine.123 Increasingly, both scholars and practitioners came to believe that a command-and-control structure and ethos, which they frankly acknowledged had military origins, offered the most appropriate way of organizing administrative government. Simply put, it possessed the greatest potential for efficiency. In a textbook chapter titled ‘‘The Over-All Administrative Hierarchy,’’ the political scientist W. Brooke Graves expressed this reality without compunction, despite its antidemocratic implications: ‘‘The organization [of the administrative state] as a whole is copied from the military and is largely hierarchical.’’124 Joining military hierarchy and industrial discipline under the rubric of public administration constituted the conceptual analogue of the military-industrial complex that President Eisenhower would identify many years later. Principally as a result of the centralization of power it necessarily entailed, the powerful presidency was probably the most controversial of the tenets of administrative ideology. Even so, the idea gained popularity throughout the 1930s as appreciation of the magnitude of the problems facing American government grew, and Roosevelt convinced Congress to endow him with greater powers than even Woodrow Wilson had possessed during World War I.125 The almost cultish reverence for the office of the executive stemmed from the assumption that coordination was a key to effective action. Hierarchy, in turn, was deemed necessary for ensuring the administrators’ accountability, precisely because they lacked the electoral accountability of most other state actors. Atop the hierarchy was ‘‘the one nationally elected politician.’’126 Presidential boosters rarely acknowledged the paradox of utilizing democratic means (elections) for potentially undemocratic ends (unchecked executive authority), or the grave problems afflicting the electoral process, such as the patent disenfranchisement of the majority of African Americans.127 It was apparently more important, as Woodrow Wilson had counseled in his 1887 treatise on public administration, to avoid the messiness, unpredictability, and clash of interests that attended the deliberative political process. To make the case for a stronger executive and to ensure that the initiative for reorganizing the executive branch came from within the executive itself, Roosevelt appointed a Committee on Administrative Management in 1936, composed of the putatively impartial (but in fact partisan) political scientists Charles E. Merriam, Louis Brownlow, and Luther Gulick. The committee’s 1937 report became the basis for failed reorganization

Leviathan and Its Discontents

47

legislation that same year.128 Although often neglected by historians, these proposals for reorganization of the executive branch—to broaden the authority of the executive over administrative agencies, enlarge the White House staff, and retain more budgetary power—were more controversial than many other New Deal plans. In part, the timing was bad: these initiatives, representing a significant transfer of power from the legislative to the executive, arrived along with the court-packing legislation. Finally, by expanding the very civil service system he had initially circumvented, Roosevelt aimed to counterbalance the more political aspects of reorganization. But it was not enough.129 Academic literature on public administration helped to legitimate the idea of increasing executive power, and to make it appear to be a principled rather than a partisan endeavor. One attraction of a strong presidency noted in the political science texts was the ability of a single person to act quickly and effectively. With similar logic these texts argued for ‘‘single officers’’ rather than independent boards and commissions to make policy determinations. Seen in a technical rather than a political context, however, these ideas reflected the central place of efficiency within the administrative ideology. Moreover, the desideratum of government in the New Deal period was ‘‘action,’’ which was often contrasted negatively with ‘‘deliberation.’’ Not only was there no time to be wasted on needless debate, but, some scholars implied, the deliberative process threatened the legitimacy of government. ‘‘The deliberative aspect of legislative procedure is the one that provokes the greatest amount of public criticism and disdain,’’ declared one leading political science textbook of the 1930s.130 The public, it seems, was more impressed with the effective action of the administrative agencies and the sense of control that the president exuded. By the end of the war, however, the image of administrative agencies would suffer. Again appealing to an analogy from the corporate world, a leading theory of presidential power counseled that just as a corporation employed a chief executive officer as the source of command, the ultimate sovereign, so too must government concentrate power in the hands of particular individuals, especially the president and governors. Writing in 1934 on urgent need to reorganize state government, one scholar exclaimed, Today . . . the imperative need is for action. Any doctrine or formula that breeds delay must be discarded. Authority must be concentrated in the governor, for in no other way can results be obtained.

48

Chapter 1

It is useless to argue that concentration of power may lead to abuse of power. That danger will always exist, but it is far less serious than the danger of inaction. . . . To put control in the hands of one person is usually to get action. The man in charge does not have to waste precious hours or days waiting for others to meet, debate, adjourn, reconvene, consider at greater length, and perhaps fail to come to an agreement. At best such delays are annoying; at worst they may lead to a virtual breakdown of the entire administrative process. With one person in command, there is no reason for them to occur.131 Some enthusiasts warned that these sorts of sentiments, while generally accepted by administrative ideologues, lost sight of the distinctiveness of political rule as opposed to other kinds of authority. As one detractor pointed out, the ideas expressed in this passage seemed more appropriate for ‘‘the emergency ward of a hospital’’ than for government.132 Indeed, this vision of governance as effective action was essentially one of a commandand-control state, bereft of any appreciation for the unique aspects of a democratic political organization, especially the need for compromise, deliberation, and public accountability.133 Decades later, the political theorist Sheldon Wolin, a critic of what he called the ‘‘rationalist’’ mentality of administration, pointed out that the idea of authority in this worldview ‘‘centers on the ability to command subordinates; no concessions are made to eliciting consensus or agreement among the members.’’ The ability to circumvent the need for compromise was a chief attraction of administrative governance.134

Responding to the New State Along with the structure of the state itself and the crisis politics of the 1930s and 1940s, such unfettered enthusiasm for administration helped to frame a variety of concerns about the new expert-driven, executive-centered emergency government.135 Critics of the New Deal state took all forms. Some, such as the American Communist Party or the conservative Liberty League, were loud, hyperbolic, and ideological. (Notably, both labeled Roosevelt a ‘‘dictator.’’) Others included former progressives and associationalists, such as Herbert Hoover, uncomfortable with such a large and centralized state despite their own state-building efforts.136 In addition, all

Leviathan and Its Discontents

49

manner of businessmen complained throughout the New Deal and the war about government interference in their economic decision making whether through cartelization, price controls, or trust busting.137 They were often joined by corporate lawyers and right-wing populists, who opposed state intervention in the economy, tarring it with the epithets ‘‘socialism’’ and ‘‘collectivism’’ and, yes, ‘‘bureaucracy.’’138 This loose coalition of conservatives inveighed against the proliferation of regulatory agencies aimed at circumscribing capitalist institutions and usurping the role of the propertyfriendly courts as well as radicals who thought the time had come to dispense with capitalism altogether. These criticisms were rarely analytical and always self-interested. In addition, while Roosevelt worked hard to obtain the support of the southern Democrats in Congress, most of whom were white supremacists, he found it increasingly difficult to win their favor as national institutions penetrated more deeply into southern territory.139 Less noticeable but arguably more important for understanding the long-run political and structural implications of the liberal state were the liberal intellectuals and their fellow-travelers whom I call the sympathetic critics of statist liberalism.140 As the new state was here to stay, it was their principled critiques, more than those of the more vocal and reactionary opponents of the New Deal, that helped to establish the fundamental debates over the state that liberals had self-consciously made their own.141 The legitimacy questions that swirled around the new state and that were most thoughtfully articulated by its sympathetic critics concerned the ways in which the state was justified and its institutional design, ‘‘the forms by which governmental power, whatever its scope, could be exercised.’’142 For their part, the flood of German refugees pouring into the American academy in the 1930s and 1940s could not help but take into account the radical turn away from democracy in Europe represented by totalitarianism. These e´migre´s crucially heightened the awareness by political and intellectual elites of the global dimensions of the transformation toward administrative and executive governance. As one German scholar described the dramatic change, ‘‘Everywhere constitutional government is in transition from parliamentary determination of political issues to the undisputed predominance of the executive operating, in the most thoroughly democratized countries, under discretionary powers which, very euphemistically, may be spoken of as ‘quasi-constitutional.’ ’’143 The democratic critiques adduced by liberal intellectuals should be attended to for their insight about how the administrative state was affecting

50

Chapter 1

democracy, not just in the United States, but abroad as well. The fast-moving shift ‘‘from legislation to administration’’ relocated the site where political decisions were made and political norms constructed and, thereby, in effect, where political sovereignty was located.144 Parliamentary democracy in Europe had long since lost its legitimacy, and Congress continued to be held in relatively low regard until pluralist political science partially rehabilitated it after the war.145 Given these realities and the nature of bureaucratic governance, something had been lost with the growth of administration that needed to be replaced, namely an opportunity for the people to render their judgment about public decision making. Since the early modern writings of John Locke, liberal political theory had insisted that the legislative power— where the people were best represented—should be sovereign in a state whose ultimate sanction lay with the people themselves. What would liberal democracy look like with an ineffectual mechanism for citizens’ voices to be heard in the policymaking process? Who should have ultimate control—and in what form—in a constitutional democracy that featured a centralized bureaucracy as its main institutional requisite? What were the implications of a hegemonic administrative process for the participation and representation of average citizens in the governing of the nation? To address these concerns, the liberal critics developed political, legal, and ethical norms and practices that could serve to justify this new form of liberal democracy in the face of both the challenge of the expanding bureaucratic state and a politics of emergency. Shunning radical solutions, they sought refuge in fair legal procedures, articulated standards for the use of administrative and executive power, principled arguments for why and when it should be applied, and democratic norms and mechanisms of representation and participation.146 This sort of reasoning, one scholar has noted, lay in ‘‘direct contradiction . . . to the avowed principles of the New Deal . . . [which were] experimental and pragmatic.’’147 Indeed, these critics offered an alternative to the instrumental rationality that most of their liberal contemporaries held dear.148 They searched for new ways to reconceive the administrative state in more overtly political rather than largely technical terms, to replace or at least to supplement the ‘‘science of administration’’ with a ‘‘theory of government.’’149 They questioned not the existence but ‘‘the controlling influence’’ of the administrative form, a dominance that was both institutional and conceptual.150 These critiques, moreover, contained not a hint of nostalgia; they did not propose a resurrection of the ‘‘old liberal boundaries’’

Leviathan and Its Discontents

51

between state and society.151 As the editor of an international collection of essays on the state described this sort of critic, ‘‘For all their underlying skepticism, mild or mordant, most of the physicians assembled here in clinic have faith in an ultimate redemption of the institutional State, and together with their criticism offer various proposals for remedial treatment.’’152 Skeptics such as these provided a more sophisticated analysis of how political power was being wielded under the new administrative regime, whether wielding it in such a way could or should extend to normal political times, and how one might soften the hard edges of the intrinsically antidemocratic and antilegalistic aspects of administrative governance. Not all the critics shared precisely the same concerns, or defined the challenges of bureaucracy in the same manner. Legal academics, for example, tended to worry more about the rule of law than the social scientists, some of whom even welcomed the relaxation of legal standards that came with discretionary administrative power. Yet to a person, they condemned the diminution of ethical norms, whether related to democracy, to constitutionalism, or to individual autonomy. And they bemoaned the technocratic ethos that pervaded the liberal state. As such, these critics strove to hold onto the domain of the political against ‘‘the penchant of modern political thought for converting political problems into administrative ones.’’153 The insistence on ethical standards and the questioning of institutional arrangements and administrative dominance helped to constitute an ‘‘anxious debate’’ about the rapid expansion of the administrative state and ‘‘the growing casualness about means’’ that accompanied it under the New Deal and the war.154

Chapter 2

Democracy and Accountability in the Administrative State

The events in Europe and the distinctive circumstances of the administrative state’s development in the United States ensured that concerns about bureaucracy would come to center on democracy, at least until the outbreak of World War II. In the 1930s, students of public institutions ratcheted up their efforts to rethink democracy in the face of bureaucratic domination, seeking to will the norm of democracy into the new state. As the social critic Max Lerner noted, ‘‘there is no permanent democratic norm in government.’’1 Accepting Lerner’s contention, most American social scientists desired merely to make democracy a pragmatically workable system. A minority sought to make democracy just—in particular for the great majority of Americans who were effectively and, in some cases, literally excluded from political participation under the new administrative state. By democracy, the sympathetic critics of the administrative state meant that the public ought to have some means of consenting to administrative decision making. They searched for a middle ground between the social scientific pluralist thought, which saw democracy as the product of contending interest groups and the government as a referee of that contest, and a Rousseauian general will, which assumed there could be unanimity as to the laws and policies produced by the state. To focus on consent was to return to a modified conception of majority rule, a form of agreement stronger and more coherent than interest group bargaining but suitably revised to address three noteworthy problems that beset the modern liberal democratic state: the impossibility of achieving genuine accord on anything

Democracy and Accountability in the Administrative State

53

but the broadest possible principles; the fact, as John Rawls would later argue, that the majority can be coercive and unrepresentative and can produce unjust results; and the erosion of majority rule in light of the rise of unelected bureaucrats. In the political scientist’s Pendleton Herring’s words, ‘‘The problem is twofold: (1) to keep the bureaucrat responsive and uncorrupted; (2) to join the citizen with the administrative process in order to utilize his particular expertness or to gain the sanction of his consent. . . . It is in these terms that public administration must be faced if ‘popular control’ is to have any meaning for this present age.’’2 It was on those terms as well that the critical liberals sought a democratic standard for the new state to live up to. For some critical liberals, public consent would be accomplished optimally through direct participation in the administrative process; others preferred mechanisms by which administrators could discern the interests of a wide array of citizens, not only those powerful enough to gain access to the mystifying unelected decision makers in the executive branch. Those concerned with the fate of democracy did not believe that the usual forms of consent, in particular voting and lobbying one’s representatives, would be nearly as effective under the new conditions of administrative hegemony, growing executive power, and emergency rule. Similarly, these critics complicated the pluralist theory of political bargaining—a theory of consent by proxy. They noted that competing groups differed not only in the degree of power they wielded but also in how internally democratic they were and thus how representative of their constituency.3 As a result, the ‘‘place’’ in the federal government that critical liberals reserved for underrepresented groups was not necessarily a physical space; it could also be a conceptual one. The goal was to determine which assumptions ought to inform a government responsive to the whole spectrum of interests, rather than only to the most powerful. The modern state had opened up a yawning gap between traditional democratic institutions and the actual practice of democracy. Yet these concerns about democracy’s future did not yield much in the way of programmatic or institutional reforms. Critics of the 1960s would revisit them with more success, at least in terms of legal avenues of participation and redress.4 One reason new ideas about consent gained so little traction during the 1930s was because the courts attracted disproportionate attention for opposing much of the early New Deal. The judiciary became the focus of democratic outrage, not the bureaucracy. As is well known, until 1937 the

54

Chapter 2

Supreme Court led the way in striking down New Deal legislation and, as a result, in garnering both public and elite hostility. Among political and even some legal intellectuals, the judiciary gained the reputation for being ‘‘the least democratic branch.’’ On this account, the courts thwarted the will of the people by undermining the program of their nationally elected representative, Roosevelt. The judiciary was also seen as the least progressive branch for thwarting the substance of the New Deal. Viewed from the vantage point of judicial power, the New Deal looked democratic indeed. Most of it was enacted by duly elected officers, while the courts—the institutional opponents of the New Deal—were viewed as undermining Roosevelt’s democratic mandate. The focus of any democratic critique, it would seem, should naturally be on the courts. And these institutions were distinct from the administrative apparatus that the New Deal had spawned, even though they were soon to become its handmaidens. There was another reason why the judiciary hindered democratic critiques of New Deal governance. To the degree that the Supreme Court’s decisions contained arguments that could be mobilized by sympathetic critics worried about the New Deal state’s undermining of democracy, they were either lost amid the opinions’ sweeping condemnations of state action or lacked legitimacy in the face of the Court’s seemingly partisan anti–New Deal stance prior to 1937.5 Lost amid the din of criticism directed at the Supreme Court was the fact that some ardent supporters of administrative government conceded that the Supreme Court had legitimate nonpartisan reasons for striking down New Deal legislation and programs. James Landis, one of the intellectual masterminds of New Deal regulatory governance, who as chairman of the Securities and Exchange Commission was involved directly in economic policymaking and administration, would by 1940 pronounce that the Supreme Court had been right in Schechter to nullify the National Industrial Recovery Act (NIRA), despite the statute’s ‘‘high purpose.’’6 The NIRA, he said in retrospect from his position as dean of Harvard Law School, was ‘‘bound to fail,’’ since it had been constructed in an ad hoc manner, with little attention to the ‘‘existing administrative scheme’’ within the federal government and with no concern for the equal treatment before the law of the affected parties. Indeed, Landis admitted that ‘‘exceptions’’ were made in the NIRA in the service of particular ‘‘vested interests,’’ although the letter of the law lacked any overt indications of favoritism.7 While Landis revealed the government’s favoritism and disregard for the Constitution in the country’s most influential law journal—the Harvard

Democracy and Accountability in the Administrative State

55

Law Review—New Dealers made little effort to craft future legislation in a way that was more inclusive of a broad array of groups and more careful to avoid collusion with the entities being regulated. Nor did liberals seem much concerned about this issue, save for some proto-pluralists in the law and the social sciences.8 In the 1930s, few worried about favoring one interest group over another since so many interest groups were involved with government. Perhaps more important, whatever shortcomings may have existed in the administrative and legislative processes of the New Deal, they drew much less attention than the Court’s decisions that immediately and dramatically undermined the New Deal’s efforts to regulate the economy and to provide a modicum of security for many, though by no means all, citizens. Landis, however, had touched on themes that, shed of their association with the Supreme Court’s bulldozing of the New Deal, would reappear over the course of the next two decades in political arguments about the potential costs to democracy of the bureaucratic state.9 Eschewing the idea of the government as a neutral arbiter among interests, the sympathetic critics insisted that the administrative state was inevitably politicized, and that to realize democratic reform required acknowledging this fact. They also saw that it was necessary to redefine the relationship between unelected government and elected legislatures and the voting public.10 Expertise had its own, quite severe limitations in the inability of specialists to understand the social bases of public policy challenges, in the lack of representation of affected groups and individuals among bureaucrats, and in the unwieldy discretion that came with a professional class of governors who possessed a monopoly of knowledge. Moreover, experts were often far from impartial: they tended to side strongly with the institutions they were regulating, and, indeed, often came from the very sectors they were charged with overseeing. Another reason that experts could not do the public’s bidding harkened back to a problem that Max Weber had identified long ago. Experts constituted a class with its own set of interests and thus they had relative autonomy from the public and government itself.11 One of the first issues raised by sympathetic critics of the New Deal was representation in state institutions, an outgrowth of their concerns about the relationship between expertise and democracy. To explore this problem they invoked pluralist political science. While pluralist theory experienced its heyday in the 1940s and 1950s, it enjoyed some favor in the 1930s. There were, however, two kinds of pluralists: those who thought that interest groups would battle it out in Congress and administrative agencies and that

56

Chapter 2

the result would be a rough approximation of the public interest and others who, while accepting the ‘‘fact of pluralism,’’ thought that public policy reflected the interests of groups with greatest access to the decision makers. The future dean of Harvard Law School Louis Jaffe exemplified the latter group.

Louis Jaffe, Pendleton Herring, and the Democratization of the State Jaffe, a law professor at the University of Buffalo and former law clerk to Justice Louis Brandeis, was fast becoming a nationally recognized authority on administrative law. He strongly supported, in principle and in practice as a lawyer for the Agricultural Adjustment Administration and the National Labor Relations Board, both administrative government and the New Deal. In 1938, for example, he decried as a ‘‘most unfortunate event’’ the so-called Pound Report, issued by the American Bar Association as a negative assessment of the state of administrative law and the biggest salvo yet launched in a long campaign by corporate lawyers to rein in regulatory agencies.12 Harvard Law School Dean Roscoe Pound, the committee’s chairman and author of the report, famously condemned what he called ‘‘administrative absolutism,’’ the tendency of administrative agencies to usurp the adjudicatory functions of the court and to disseminate traditional legal doctrines and procedures, and disparaged this privileging of the administrative process as a ‘‘Marxian idea.’’13 Nevertheless, while scoffing at Pound’s overwrought, ideologically charged rhetoric, Jaffe acknowledged that at times administrative officials engaged in an ‘‘extreme abuse of power.’’14 However, he argued that these indiscretions flowed less from the fact of administrative government (or, for that matter, from a few rogue individuals) as from the political ideology that informed the policies the agencies were charged with carrying out. For example, Jaffe noted that the harsh and inconsistent actions of the immigration administration, one of the agencies condemned in the Pound Report for its procedural irregularities and the arbitrary exercise of power, ‘‘reflect[ed] the essential character of the law and the mood of Congress and the country.’’15 Hostility toward immigrants led agency officials to a ‘‘seemingly unnecessary cruelty’’ lest the officials fall victim to ‘‘criticism, dismissal, even impeachment.’’16 Yet Jaffe also admitted that the Department of Labor, which housed immigration services until 1940, had adopted

Democracy and Accountability in the Administrative State

57

significant reforms in response to much-publicized abuses. The procedures for handling immigration cases had become more equitable, according to Jaffe. From this, Jaffe concluded that ‘‘the extreme abuse of power depends more on the nature of the function than on the form in which it is exercised (though the latter consideration may mitigate or accentuate the result).’’17 Hence it was not administrative governance as such that created disparities in treatment and undemocratic conditions, but the way administration was conducted. Correlatively, the nature of the pressures on the agency mattered tremendously, as much as the directives from Congress. In fact, Jaffe was all too ready to concede this point in other writings, where he stressed the importance of interest group influence on administrative bodies. Notwithstanding the reigning belief that administrative government was relatively insulated from politics compared to the more porous and responsive legislative institutions, Jaffe recognized that such government was at least as much if not more subject to interest group pressures than the legislature. The former was organized around particular economic sectors and hence required input from affected parties. Moreover, regulatory or planning activity necessitated greater sensitivity to variations at the local or regional level than did the broad-based lawmaking in which Congress engaged. Finally, much New Deal and wartime legislation, including the Agricultural Adjustment Act, the Bituminous Coal Conservation Act, and the Emergency Price Control Act, provided for either compulsory or voluntary participation by group representatives on local and regional boards and commissions.18 In principle, Jaffe believed in greater individual participation in regulatory decision making, replacing ‘‘administrative control’’ with the participation of organized groups. Such participation allowed for the opportunity for self-development under a regime of administrative governance that otherwise afforded very few avenues for self-determination and the expression of ‘‘the creative and moral impulses of the individual.’’ In a technocratic society governed by an interventionist regulatory state, direct political participation in determining the conditions for material well-being was essential for maintaining some semblance of ‘‘the principle of autonomy.’’19 In addition, individual participation in regulatory mechanisms provided a partial answer to the legitimation problem of the administrative state, in which normal channels of consent, such as voting, were greatly reduced in importance in favor of appointed minions. The two challenges—that of preserving individual and group political autonomy, and of consent in

58

Chapter 2

political and social arrangements—constituted ‘‘a problem of securing the means whereby persons may themselves establish common ground on which they find it feasible to work together willingly.’’20 Hence Jaffe sought to supplement public administration with what he called ‘‘group administration.’’ ‘‘At least under capitalism,’’ Jaffe declared, public administration ‘‘should not be the exclusive method of regulation.’’21 Jaffe’s argument for ‘‘group administration’’ was foremost a legal one, aimed at discerning what might be considered ‘‘constitutionally valid group participation’’ in the making and execution of laws. First, Jaffe rejected the assumption of many jurists and legal academics that voluntary associations were just that—voluntary—and thereby could not be regulated by law. He rejected too the notion that vague judicial standards for administrative actions such as ‘‘reasonableness’’ were either necessary or effective constraints on the delegation of power by Congress. Finally Jaffe’s argument disputed the idea that the delegation of lawmaking authority to private groups was prohibited under the Constitution.22 On the issue of voluntarism, Jaffe recognized that civil society contained its own forms of repression, and that the traditional distinction between public coercion and private freedom no longer held sway. For Jaffe, acknowledging and counteracting these inequities were necessary prerequisites for involving groups in the administrative process toward the end of political autonomy.23 Arguing against the conventional legal position that the law of voluntary associations was simply an extension of the traditional law of contracts, which held that the parties to the contract had entered it ‘‘voluntarily,’’ Jaffe cited racially discriminatory unions as well as political parties that barred African Americans as examples of voluntary entities that engaged in coercive practices. They were little more than ‘‘monopolistic associations’’ that acted ‘‘irrespective of the will of particular individuals.’’24 Having established the existence of power imbalances within and exclusions from voluntary associations, Jaffe turned to the issue of government delegation of public authority to these groups and to the mechanisms required to compensate for the inequities he had identified. Delegation to private associations was a standard feature of corporatist arrangements in which the federal government negotiated with representatives of major interest groups—principally labor and business—to help direct capitalist organization. It was also on display, according to Jaffe’s understanding of delegation, in the legal sanctioning of collective bargaining under the National Labor Relations Act of 1935 and the Railway Labor Act of 1934. In

Democracy and Accountability in the Administrative State

59

collective bargaining agreements, representatives of a majority of employees determined the conditions under which they were to work. This process of self-constituting collective determination Jaffe considered one of the key ‘‘functions of democratic government.’’25 Yet Jaffe did not entirely approve of the way in which government authority was being handed over to private associations. He cited radical imbalances in power among interest groups and noted that big industry had influenced the NIRA and the Agricultural Adjustment Act (AAA) for their own benefit by lobbying government officials to make sure their interests predominated in the statutes. ‘‘Such representation,’’ said Jaffe, ‘‘though not necessarily covert, is unofficial and irresponsible.’’26 In the mid-1930s, Jaffe saw various means for achieving group representation in the administrative laws and practices of the New Deal. However, most of his examples were culled from the state and not the federal level. Moreover, the mechanisms he cited often ignored the problem of political autonomy. In addition, such participation and representation was hardly a priority for most New Dealers. The ‘‘public interest,’’ rather, would generally be determined by experts who knew how to solve problems rationally and efficiently and who would call upon members of affected groups when and if they thought necessary. Otherwise, their object was to help some unspecified ‘‘majority’’ against the rapacity of industry.27 Focusing on the experience of workers and poor farmers, Jaffe drew attention to an issue that most New Dealers simply ignored, namely the composition and representativeness of the private groups to whom governmental power was delegated.28 Jaffe challenged the pluralist dogma, already in evidence in the 1930s, that private ‘‘groups and their members are completely benevolent, that within them no member will be oppressed and that the group will deal fairly with the world.’’ Such pluralism made no provision for ‘‘controlling the exercise of autonomous powers,’’ a potential problem both for centralized corporatist and decentralized pluralist forms of administration. Jaffe explained, ‘‘In dwelling on the beauties of cooperation in our society the wishful thinker may exaggerate the uniformities of the units composing industrial groups. It is undeniable that almost any imaginable group given extensive powers may oppress the minority of the group and exploit other groups.’’29 Jaffe’s purpose in exposing the possibilities for oppression within and among groups was not to dismiss the idea of group participation in the activities of public administration. Rather he sought to lay the conceptual

60

Chapter 2

groundwork for shifting power away from administrative officials and toward the groups themselves as well as to the legislature. Addressing recent court decisions, such as Carter Coal, which struck down the Bituminous Coal Conservation Act of 1935 on the grounds of improper delegation of public authority to private groups, Jaffe sought to show that problems of (mis)representation and the oppression of minorities by majorities did not constitute a legal (or any other kind of) reason for rejecting New Deal efforts to delegate power.30 Jaffe was a pluralist himself, albeit one who recognized that since interest groups were now a permanent part of the political process, how they were to be incorporated, and on what grounds, and by what legitimating principles, were what mattered in a democracy. Their influence on government should be taken as neither a good in itself nor a danger to be avoided: ‘‘The power of special interests pervades our entire legal and governmental structure. Once given the fact that a phase of our economic life is to be regulated, it must be understood that these interests will, in one way or another, be effective, be it in the legislative or in the administrative process.’’31 Better, thought Jaffe, to make official, formal, and explicit rules for participation by private groups than to allow the more powerful interests to dominate the less powerful. Jaffe concluded, therefore, that the courts should look favorably upon plans explicitly written into the law for incorporating the voice of interest groups, especially if they provided mechanisms for ensuring some input from the less powerful. But the legislature, not the courts, should have the final say. According to Jaffe, ‘‘the legislature may legitimately consider that public administration in some cases is inadequate acting alone and in others is a positive and unnecessary embarrassment.’’32 As a possible model for democratic group participation, Jaffe seized upon the amended version of the AAA (rejiggered after the original version was overturned by the Supreme Court), which required agricultural producers to vote to approve any new marketing plan before it became law. ‘‘The franchise provides the unorganized groups—who may even be in the majority—with an opportunity which without it they do not have. It is much more feasible,’’ Jaffe continued, ‘‘to rally specialized groups than a mass of undifferentiated voters.’’33 Of course, the voting did not work out this way, but in 1937 it may have been too early for Jaffe to know this, and he expressed enthusiasm for a possible avenue for broader input into policymaking decisions. With time, studies by social scientists would prove Jaffe right. Not that the matter was much studied in this period, but the few mentions that did

Democracy and Accountability in the Administrative State

61

exist are telling. The most famous New Deal program to stress the involvement of the entire spectrum of affected groups was the Tennessee Valley Authority (TVA). Less well known in this regard, but in fact with a much broader commitment to citizen participation, were certain programs within the Department of Agriculture.34 Henry A. Wallace, Roosevelt’s secretary of agriculture from 1933 to 1940, saw agricultural reforms as, in part, an ‘‘experiment in democracy.’’ As such, he emphasized broad ‘‘participation in the administrative processes.’’35 Wallace, a former farmer, also oversaw the development of a ‘‘comprehensive set of devices for group representation and consultation’’ that were to encourage farmers to become involved in agricultural administration and policy formation.36 But which farmers? Farmers were a diverse group economically, some of them large capitalists, others sharecroppers, with many iterations in between these two social poles. They were also sectionally diverse, a difference recognized by Washington and a major impetus for the relatively decentralized approach to agricultural planning undertaken by the Department of Agriculture and other agencies under its aegis.37 The recognition that agricultural policy could not be truly national in nature, especially given the added responsibilities that faced the Agriculture Department under the second version of the AAA, led to the Mount Weather Agreement of 1938. This was a pact between the Department and the Association of Land Grant Colleges and Universities to engage jointly in county-based land-use planning in which farmers were to have considerable responsibility for policy development and in which the development of democratic procedures was a specific goal.38 To accomplish this, the agreement provided for county-level land use committees on which farmers were to compose a ‘‘substantial majority’’ and community-level committees to supply even more local information to their county counterparts. These local committees were themselves to be composed of elected ‘‘representative farm men and women.’’39 Finally, representative state committees were to be established to coordinate the various county plans before they were submitted to Washington. The idea was to combine the expertise of administrators at the center with the local knowledge of the people who would be directly affected by public policy decisions.40 The County Land-Use Program involved, in theory, a kind of participatory democracy not usually associated with the New Deal. It represented a concession that command-and-control policymaking by experts was not necessarily the most effective way to coordinate public programs that had

62

Chapter 2

simultaneous national and local objectives. In practice, because of a lack of leadership from the administration in Washington and the presence in the field of ‘‘a bewildering variety of interpretations of democracy,’’ any real commitment to democracy seemed lost. Only a fraction of the states that participated in the program, which was voluntary, required that the farmers’ representatives be elected. Elections, it seems, were considered inefficient devices in the face of planning imperatives.41 Representation itself proved problematic. According to Oberlin political scientist John D. Lewis, the scholar who studied this experiment in democratic planning most closely, ‘‘In no Southern state is there any attempt to secure systematic representation of Negro farmers.’’42 Participation by African Americans at the county and local levels threatened the power of many southern white farmers who maintained a system of racially based economic exploitation in land and labor. Such participation would not only exemplify a form of political racial equality, but also provide a potential conduit for organizing among sharecroppers seeking to engage in collective action along the lines of northern industrial wage workers.43 Hence although new administrative procedures were designed to foster greater inclusion and participation in the local power structure, unless forced by the central administration to comply, the existing system would simply replicate itself in any new institutional framework. Indeed, this was the case throughout New Deal administration in the South.44 As Lewis put it, perhaps too generously, ‘‘No new administrative procedure can be expected to break down deep-rooted racial prejudice overnight.’’45 Lewis conceded that without the possession of organizational power in the first place, African American farmers would be unable to make the new rules of the game effective. In fact, this held for small farmers more generally. Wealthier, better organized white farmers were able to use democratic mechanisms for undemocratic ends, not just in the South, but across the country, a phenomenon that the sociologist Philip Selznick would seize upon in his highly critical assessment of the TVA and its democratic potential. Another case study conducted after the war bolstered Jaffe’s contention that the most powerful groups would determine policy and procedures in an administrative setting absent appropriate formal mechanisms. It involved the controversial Office of Price Administration (OPA). Under the Emergency Price Control Act of 1942, the OPA was charged with regulating commodity prices and distribution, including programs to control prices and ration goods in more than six thousand localities. To administer the

Democracy and Accountability in the Administrative State

63

program, the agency established local boards and set guidelines indicating that the boards ought to be representative of the communities they served. On the other hand, the broadly worded legislation establishing the agency indicated only that the administrator should solicit the input of representatives of industries affected by the OPA’s regulatory policies.46 The all-white staff in the Washington office, with no guidance from any elected official, proceeded to determine just what ‘‘representative’’ should mean. The inclusion of race as a category of representation was apparently so contentious that it was dropped from the initial draft of the plan for staffing the local boards. As one former adviser to the agency reported, ‘‘The original draft plan specifically mentioned the need to include representatives of minority groups in areas where such groups lived. Some members of the OPA field staff, however, objected to the inclusion of this provision. In addition to the opposition from some parts of the South, it was said that the boards in certain areas of concentrated Negro population in the North would, under the definition of representativeness, turn out to be made up entirely of Negroes. This did not seem to be desirable; to some members of the staff who felt that such boards might be looked upon as discriminatory.’’47 Without an official mandate, African Americans were excluded even from those administrative mechanisms aimed at inclusion. The final order contained provisions for representation of businessmen and consumers, farmers and housewives, but not for racial minorities, and not for organized labor, although the latter would eventually have considerable success in gaining entre´e to wartime agencies.48 The stakes involved in the composition of the local boards went beyond issues of political representation. Evidence from the field suggested that African Americans were more likely to be denied the opportunity to purchase scarce goods by white-run boards than were white consumers. And there may have been national planning implications as well with reports suggesting that there was poorer compliance in African American neighborhoods than white ones.49 Finally, in 1944, OPA administrator Chester Bowles appointed two African Americans to his Washington staff, in response to pressure from the CIO. What difference such staffing changes made or could make at this point in the program is hard to imagine.50 Studies such as those of the OPA revealed that the New Deal’s administrative process lacked mechanisms for representation, and for the most part the incentives to acquire them. Jaffe had begun to realize this years earlier. And, as he claimed, expert administration by itself was inadequate both as

64

Chapter 2

an organizational tool and as a normative basis for preserving a democracy in which individuals (through their participation in groups) would be able to develop themselves and lead meaningful lives through political activity. Jaffe’s message was twofold: those in the best position to know how to run things most equitably and efficiently might not always be technocratic experts, or located at the center of the state; and the final check on whether or to what extent there needed to be administrative control over private groups should be that of Congress, not the executive. To be sure, the nature and scope of legitimate authority and the ways in which that authority was to be distributed still had to be determined by national political actors. This was a matter of fairness, of overcoming unjust particularities, not a preference for hierarchical management techniques. At virtually the same time Jaffe was embarking upon his exploration of private groups and the law, the Harvard scholar E. Pendleton Herring was engaged in a similar project in the discipline of political science. Along with Jaffe, Herring too was interested in the problem of participation and consent in the administrative state. But Herring’s notion of consent was less literal than Jaffe’s. For example, although it might be achieved through various participatory mechanisms at the agency level, it could also be realized by better cooperation between the executive and legislative branches or more responsible bureaucrats operating according to a uniform standard that he called the ‘‘public interest.’’ Addressing the relationship of bureaucracy to democracy, Herring wrote, ‘‘If the administration of laws is left in the hands of a bureaucracy that is not accountable for its actions, representative institutions become farces. The sporadic and tardy intervention of a legislative body in the affairs of the executive branch is an inadequate check upon the bureaucracy.’’51 In addition, the bureaucrat had a responsibility to obtain the consent of the citizen, especially in a presidential system. As with so many of the troubled liberals in this study, Herring never fully answered the questions he posed or reconciled the tensions he identified between, in his case, democracy and administration. But his struggle to grapple with the problems of the administrative state, even as he embraced it, made evident problems that most statist liberals either did not recognize or were unwilling to acknowledge.52 The main fruit of Herring’s labors was his widely read book Public Administration and the Public Interest (1936).53 Herring, who was president of the Social Science Research Council in 1948 and of the American Political Science Association in 1953, is not often analyzed by historians of politics or political ideas. Those who have studied him usually place him

Democracy and Accountability in the Administrative State

65

directly in the mainstream of the political science of his day, as did some of his more critical contemporaries, especially by the late 1930s. Intellectual historians have argued that he was an ‘‘eloquent apologist for contemporary political mores’’ who accepted the assumptions of relativism and the scientific method while uncritically embracing the study and practice of public administration.54 In fact, the Herring of the 1930s stood in a more awkward relation to the mainstream of his discipline. Rather than conventional political science, his work was suggestive of an important immanent critique of the emerging administrative state and the pluralist interpretation interest groups as the savior of the state. And while Herring certainly rejected absolutism as a theoretical basis for the liberal democratic state—as he put it, ‘‘No logical a priori theory can embrace the flux of actual government’’— this hardly made him a relativist.55 Herring transcended the absolutist/relativist dichotomy, positing a norm of democracy that he felt should govern the administrative state. That norm was ‘‘the public interest.’’56 The notion of ‘‘the public interest’’ would guide the responsible bureaucrat in sorting through the various conflicting interests that confronted him.57 Such guidance was necessary for several reasons. First, it was not forthcoming from Congress. Second, it would provide a standard for prioritizing the myriad claims of organized groups rather than bowing to the most powerful. Third, and arguably most important, it would help to establish greater trust in government, which, Herring recognized, was threatened by the cacophony of the uncoordinated agencies and institutions of the administrative state as well as the greater intrusiveness of government into the lives of most citizens. Paradoxically, the citizens’ continued skepticism toward the national government drove the very chaos that made government difficult to trust in the first place. ‘‘The citizen distrusts the state at the same time that he appeals to it for help. He desires to use the facilities of the government; but he does not wish the government to direct or control his activities,’’ Herring noted. The idea was that if the bureaucracy was left relatively uncoordinated, citizens would not be scared off by the leviathan. But Herring rejected this strategy as impractical and dangerous. Instead, he called for a reorganization of government both institutionally and normatively so that the administrative machine, as he put it, could serve the ‘‘public interest’’ or ‘‘general welfare.’’58 Herring rejected the common pluralist assumption of the moral equivalence and formal equality of interest groups. Indeed, the main question of his 1936 book was whether the administrative form could be an effective

66

Chapter 2

‘‘counterbalance’’ to the undue influence of interest groups over Congress, or whether it would end up as yet another haven for such interests under a too-powerful executive. In short, was the administrative state the answer to the problem of how to arrive at public policy decisions in the face of the significant (and relatively recent) ‘‘tendency toward particularism’’—or narrow-minded policymaking—that resulted from group politics? Or put another way, ‘‘How can a balanced execution of law in the public interest result from an administrative service that is the product of the political aggressiveness of fortunately situated economic groups?’’59 Rejecting the orthodox belief that administrative institutions were relatively insulated from political jockeying, Herring claimed that such entities were subject to as much if not more interest group pressure as Congress. More than this, he insisted that some interest groups were more powerful than others and needed to be kept at bay in the interest of fairness. ‘‘A collection of federal bureaus created at the behest of aggressive minority groups cannot envisage the general welfare.’’ Meanwhile, powerless groups, whom Herring called ‘‘irreconcilable minorities,’’ threatened ‘‘democracy itself.’’60 For reasons both of social stability and of fairness, then, the state ought to ensure that these relatively powerless groups were given ‘‘what they regard as their minimum share of the national store of goods and opportunities.’’61 The existence of pluralism led Herring, like Dewey, to believe that the public interest as a legitimating concept was in considerable danger.62 Yet he could not figure out a good way to save it. Two points stood out in Herring’s argument about interest groups. First, Herring was not endorsing the group basis of society in normative terms (though neither was he condemning it). He, like Jaffe, was simply acknowledging the existence of increasing numbers of organized groups and the pressures that they exerted upon government. Finding common ground among those groups was essential to a functioning democracy in the United States. Second, Herring maintained a normative conception of the public interest: an inclusive and responsive democratic state that engaged in effective regulation of production and that distributed goods and services in a relatively egalitarian manner.63 Thus Herring was not a clear-cut relativist or empiricist. But was he a sympathetic critic of the administrative state? On the surface, Herring appears as an unmitigated champion of the bureaucratic polity, and scholars have often represented him as such. He lauded the ‘‘efficiency’’ of the administrative state and wrote of its necessity

Democracy and Accountability in the Administrative State

67

in modern society. Damning both Congress and the judiciary, he argued that Congress was entirely ineffectual at ‘‘synthesizing group conflict into a unified conception of the public interest,’’ and that judicial review was ‘‘a limited and belated method of preserving a dubious degree of consistency and order.’’ Herring concluded that it must fall to the administrative sector to cull from the cauldron of conflicting group interests a formula for ‘‘promoting the general welfare.’’64 Herring shared the belief of unalloyed statist liberals that the existence of a separation of powers and checks and balances was ‘‘a fiction’’ and that ultimately one government sector would dominate the others.65 So far, this conception of governance remained an empirical one: Herring determined that Congress had in practice failed to govern on behalf of the public as a whole and that federal administration had been given that task, though by whom or what Herring did not make clear. Indeed, Herring described his book as ‘‘an inquiry into the functioning of our federal administrative machinery.’’66 However, Herring’s tract was also very much a brief for what administrative government should be, both to achieve stability in the democratic system and to protect and promote what he called the public interest. His question was whether administrative government could perform these tasks, and, if not, what was required to allow it to do so. A common theme among the sympathetic critics concerned with democratization of the administrative process was that the relationship between interest groups and the administrative state needed to change, so that the latter could govern in the interests of the people as a whole. The bureaucracy, they believed, was the only government sector that was structurally able to do so. This represented a modification of the emerging pluralist idea that the federal government ought to arbitrate among competing interests because the public interest just was the sum total of organized interest groups.67 Such a change in the conception and practices of public administration, therefore, required a reconceptualization of the administrative state more generally. Only an assumption regarding the purpose of liberal democracy could drive such an insistence on reform. Once again, for Herring, the purpose of a democratic state was to conceive of, execute, and protect what he called the public interest. ‘‘We assume that the purpose of the state is the development of a unified rule of law and the subordination of those group purposes contrary to the broader aims of the state.’’68 Only after having rendered the purpose of the democratic state unproblematic, only after making it legitimate, did Herring focus his attention on ‘‘the means of ensuring public administration in the public interest.’’69

68

Chapter 2

In a democratic administrative state, particularistic interest groups occupied an awkward position. They were a necessary source of information about certain aspects of the public’s wants and about the technicalities of regulatory policy. As Herring put it, interest groups, because they dealt directly with administrative government in specialized areas, were often a better resource on questions of public policy execution than Congress: they ‘‘are much better acquainted with administrative problems and the records of officials than are the legislators.’’70 At the same time, ‘‘this reliance of the ruler on the aid of the governed’’ interfered with the possibility of discerning a broader public good. Herring, in fact, was one of the first to articulate the phenomenon of what later became known as ‘‘agency capture.’’71 This was the idea, which would in the sixties become a more radical critique under the aegis of ‘‘corporate liberalism,’’ that administrative agencies had been or were becoming the ‘‘handmaidens’’ of the most powerful and best organized interests, in particular economic interests, but also certain ‘‘sectional interests’’ that divided the North and South. As a result, officials made public policy in order to best serve these interests in particular rather than those of the public at large. ‘‘In fact,’’ as Herring explained, ‘‘some groups are placed more advantageously than others within our governmental structure and our industrial system. The government draws its strength from the very elements it is supposed to regulate.’’72 The bureaucracy, captured by interest group suasion, was not ‘‘under the control of the people.’’ The urgent question was how to get it there.73 Before finding the solution within the administrative state itself, Herring rejected several alternatives that had been tried and found wanting. These included mobilization through party organization, the ‘‘personal magnetism of leaders’’ and methods of ‘‘direct democracy,’’ such as the initiative, the referendum, and the direct primary. Reflecting a common fear of popular will formation among political scientists and legal scholars of his day, Herring argued that direct democracy erroneously assumed that the public ‘‘possessed a unified and responsible will.’’74 He thus endorsed a decidedly representative form of democracy. Yet his notion of representation entailed less the idea of government officials mirroring the myriad interests of the public, than the translation of those interests into a generalized public interest. Herring was ambiguous as to the difference between the general will and the ‘‘public interest’’ or ‘‘general welfare.’’ One difference concerned the ability of the public to govern themselves. Of greater relevance was Herring’s understanding of the public interest as something

Democracy and Accountability in the Administrative State

69

closer though not equivalent to Rousseau’s will of all. The public interest was more than the sum of its parts, but less than the uniform consensus demanded by Rousseau’s general will.75 In his faith in representation, Herring differed from some other liberal critics. Government was primarily an effective instrument for serving the needs of citizens rather than a mechanism for political participation.76 In return for its services, citizens were expected to give their consent, either formally and informally, to government policies that affected them. It was consent as representation rather than consent through participation that most concerned Herring.77 Nevertheless, Herring shared with other skeptics the idea that New Deal governance was neither as egalitarian nor as fair as it appeared to be. Herring asked, ‘‘How can interests that are socially important but politically weak be given a place in the federal administration?’’78 In contrast to the more participation-minded liberals, however, the ‘‘place’’ in the federal government to which Herring referred was not necessarily a physical space but a conceptual one. Herring asked which assumptions ought to inform a government responsive to the whole spectrum of interests, rather than only the most powerful. As an optimist about the democratic potential of administrative government, Herring thought the answer lay in the hands of administrators themselves. Those who ran administrative bodies needed to glean information from interest groups, including ‘‘the opinions held by groups less well organized or aggressively directed,’’ in search of a kind of general will—the public interest—and then to use that information to formulate policies.79 The challenge that the concept of the ‘‘public interest’’ was supposed to meet was to involve interest groups in administrative government without allowing them to dictate outcomes or distort policy. In other words, the ‘‘public interest’’ served as a ‘‘symbol’’ that functioned to steer administrators in making and executing public policy so that they could avoid being captured by the most powerful and well-organized groups.80 However, in relying upon the concept of the public interest as a way of ensuring the democratic functioning of the bureaucracy, Herring elided the prescriptive/descriptive distinction implicit in this concept. In one instance, he wrote as if federal bureaucrats, by virtue of their impartiality and expertise, acted according to the dictates of the public interest. At the same time, he called upon the public interest as a regulative ideal that ought to inform the actions of administrators if they were doing their job properly.81

70

Chapter 2

It was the latter interpretation that prevailed. Herring ended his book on a prescriptive note, calling for more concrete standards to drive administrative activities and a national planning board and administrative council to coordinate the various policymaking functions within the federal government to ensure policy was made and executed in the public interest.82 Given the disproportionate influence of certain interest groups and the lack of coordination and leadership within the administrative state, Herring lamented that ‘‘under these conditions general standards for administration in the public interest are impossible. Criteria must be developed for each administrative situation.’’83 Such standards, Herring insisted rather vaguely, must be the first ingredient in the recipe for the ‘‘public administration in the public interest.’’ As the political scientist Theodore Lowi would argue several decades later, administrators could operate according to broader public aims only if Congress provided concrete and specific directives to agencies, rather than, as Herring described them, ‘‘vague standards [such] as ‘fair,’ ‘just,’ or ‘reasonable.’ ’’84 Without such standards, agencies would engage in little more than ‘‘unregulated regulation.’’85 But Herring, while not rejecting the idea that Congress should be the author of these standards, implied that they were unlikely to come from legislators, ‘‘who have more faith than understanding.’’ Rather, they were more apt to emanate from administrators themselves, but only under conditions of greater coordination and clearer legislative and executive directives than existed in the mid-1930s.86 As a mechanism for effecting such change, Herring proposed, rather offhandedly, what he called an administrative advisory body. This group would be government-wide and composed of ‘‘a membership embracing all the interests falling within the jurisdiction of the federal government. . . . It would serve as a means of harmonizing administrative action within the statutory terms set by Congress. It could discover contradictory purposes. It could evaluate the relative importance of various bureaus. It could pass upon the projects offered by the research and planning agencies in the various departments or commissions. It could include officials and laymen in its membership.’’87 Herring was not alone in advocating for clearer standards as a way of limiting the discretion of administrative officials. Unfortunately, almost no one mentioned that a major reason that Congress did not include clear principles in most regulatory and compensatory laws was that regional and other interests were at loggerheads over key issues. Political realities thus

Democracy and Accountability in the Administrative State

71

dictated vagueness rather than specificity. Perhaps most prominently, southern Democrats exercised a powerful veto over much of the New Deal, which militated against national standards, either through exclusions of affected groups or through federalist structures.88 Nevertheless, clearer directives and greater coordination among and within the branches of the federal government were Herring’s answers for constraining the potentially dangerous uses to which the ‘‘public interest’’ could be put. As several of his contemporaries pointed out, it would be dangerous for the ‘‘public interest’’ to assume the role of an absolute, and thus serve as a catch-all rationalization for whatever actions administrators wanted to take. Herring recognized early on a problem that would become all the clearer as fears of Nazism and then Stalinism grew: in theoretical terms, the public interest or the general will was an empty signifier into which could be poured virtually any meaning, serving as an appeal to legitimacy in antidemocratic and democratic regimes alike. ‘‘As an absolute,’’ wrote one political scientist in the 1950s, the notion of the general will ‘‘encourages the development of a ghostly hierarchy to monopolize its consultation and to give forth ex cathedra pronouncements to its name. . . . It makes a world of difference whether the ‘general will’ is arrived at from counting votes, from the intuitive genius of the Fuehrer, or from the dialectical analysis of the Politbureau. Procedures rather than substance are the major concern.’’89 For his part, Herring was not ready to concede that the general will was devoid of all content. He gave careful thought as to what might breathe democratic life into the concept of the public interest beyond the rather tautological notion that it was whatever was mobilized by democratic state actors. Besides, Herring was all too aware that most administrators were not elected, and hence their democratic legitimacy rested on a rather thin reed. Referring to the ‘‘diversity’’ and ‘‘uneven development’’ of administrative mechanisms, Herring noted that there was a disjuncture between the federal government’s increasing role as guardian of the general welfare and the thinking about democratic governance aimed at fulfilling this charge.90 Herring himself seemed torn between a semiautonomous conception of the state, in which conflicting interests were not only harmonized but ultimately transcended by governmental institutions acting in concert for the public interest, and a conception of government as merely an ‘‘impartial arbiter’’ among particularistic groups who originated the nation’s political agenda.91

72

Chapter 2

Was the public interest, then, nothing more than the most stable compromise that could be found, in Rousseau’s terms, in the will of all? Or was it a more holistic concept, more akin to Rousseau’s general will, that is, a public good that was separate from and more than the sum of the state’s existing parts? Ultimately, Herring believed, in good pluralist fashion, that administrative government should and could balance conflicting interests in quest of the public interest. But the public interest was not based merely on objective, empirical knowledge. Nor was it reducible to the greatest good for the greatest number. Rather, the ‘‘public interest’’ just was that ‘‘standard of judgment’’ employed by enlightened administrative officials to balance the various interests that competed in the political arena. ‘‘The public interest,’’ as Herring explained, ‘‘is the standard that supposedly determines the degree to which the government lends its forces to one side or the other. Without this standard for evaluating the claims of the contenders, the scales would always be weighted in favor of victory for the strongest.’’92 Such a standard loomed larger than any particular interest. It was a form of expert knowledge possessed by administrative officials, a kind of recipe for the proper mix and interpretation of interests that would yield the public interest or general will. Herring never articulated what exactly this standard of judgment should be; in fact, it was ‘‘an imponderable,’’ a ‘‘subjective conception’’ whose ‘‘value is psychological.’’93 Despite such limits, Herring trusted bureaucratic government to offer ‘‘objective judgment,’’ and work toward an exclusively ‘‘public purpose.’’ But for this to occur three conditions had to be met. Particularistic interests had to be held in check, and a degree of impartiality among officials thereby preserved. Bureaucrats had to have expertise, including knowledge of how to rationally adjust interests for the good of the public. Finally, mechanisms had to exist for a popular check on administration, such that bureaucrats felt the need to be responsive to the people.94 How the ‘‘subjective conception’’ of the public interest related to the ‘‘objective judgment’’ that Herring felt administrative officials were capable of rendering remained unclear, but Herring may have believed that by applying the subjective concept of the public interest administrators could arrive at an objective judgment as to the correct path for public policy given the proper mix of social and economic forces. Hence Herring rejected an outright balancing of interests for the sake of social peace in favor of the idea that the administrative state ought to discover and execute a kind of general will. Without noting the irony of

Democracy and Accountability in the Administrative State

73

analogizing the bureaucrat to the citizen, Herring wrote that the ‘‘bureaucrat is placed in a situation similar to the plight of Rousseau’s citizen’’ in having to determine the ‘‘general will.’’ The difference was that the administrator ‘‘must endeavor to act in the public interest, but without the consolation of testing his judgment in a bureaucratic plebiscite.’’95 It was this understanding of the importance of an overarching public interest that led Herring to herald the expertise of administrative officials. Like Plato’s philosopher kings, they were to be expert not just in the technical issues involved in regulation, but also in the general knowledge necessary for understanding the public good, what Herring called ‘‘knowledge of the community as a whole.’’ These wise men and women of the bureaucracy ought to use their own skills and their relationship to the people affected by the policies that they administered to ‘‘awaken . . . people to their own best interests,’’ and ‘‘arouse them to concerted actions’’ to pressure the state in a way beneficial both to them and to the country more broadly.96 This administrative expertise was explicitly nonrepresentative, but overarching. In fact, Herring contrasted it with the more factionalized ‘‘expert knowledge of special-interest representatives’’ in Congress.97 His idea of the public interest was more synthetic than the strict agglomeration of political wills, but it did not reach the unity insisted upon by Rousseau. Anticipating a postwar trend among political scientists, Herring did not fully trust the people to articulate their own individual and collective interests. They could—and should—vote, certainly, and their opinions should be solicited, absolutely. But they should not, in modern government, have the final say. In Herring’s Geneva, the citizens would not be self-legislating as Rousseau had envisioned. But neither would their interests merely be represented as Rousseau had deemed impossible. Rather, the citizen would be reconnected to government by offering his expertise to officials who would be sure to ‘‘gain the sanction of his consent.’’98 Administrative experts, not citizens, should determine the proper balance among ‘‘the economic and political forces within the state to the end that the public interest may be interpreted, not merely in terms of factional compromise, but in accordance with the wisdom and experience of the whole community.’’99 Herring’s skepticism about administration turned out to rest not on any robust understanding of democracy, but on an appreciation for a special kind of authoritative knowledge. Such knowledge he thought necessary to the democratic functioning of the state, but it transcended mere technocratic expertise. Rejecting a fundamental tenet of pluralist thought that the

74

Chapter 2

center could not hold, Herring argued ‘‘there is need for promoting a purpose of the state over and above the purposes of the medley of interests that compose it.’’100 That was the job, Herring believed, of the administrative state, at least until the outbreak of World War II.

War and the Challenge to Administrative Governance Before Herring could complete his next book, World War II exploded across the European Continent. In this new context, Herring’s attitudes toward American political institutions, like those of many other political scientists, assumed a more supportive, less critical cast. Liberal democracy had suddenly become an unexpurgated good for most of the academic thinkers who had supported administrative governance. As a consequence, they either assumed that American liberalism functioned unproblematically as a flexible, representative, and diverse set of political and social arrangements, or virtually ignored the issues surrounding liberal democracy altogether and concentrated on such things as winning the war or maintaining security.101 The British political scientist Herman Finer reflected the new attitude toward American liberal democracy when he wrote, ‘‘The principal, indeed the desperate, task of democracy is to maintain itself; its second, to improve and refine itself.’’102 But if the greatest concern during the war was necessarily with the external threats to democracy posed by hostile, foreign powers, the internal threats posed by bureaucratic government had not disappeared. If anything, with wartime mobilization, and the dozens of new executive agencies formed to carry it out, concerns about the reach and costs of arbitrary power had intensified. Students of public administration, however, remained committed to an administrative state, and so tried to give the administration a less instrumentalist, and more normative justification to answer any remaining concerns. Principally, they imbued bureaucracy with values that had been absent during the New Deal. Many scholars of bureaucracy now saw it as a purposeful—and not just an efficient—machine. Its key purpose, in their view, was to help realize the ideas of liberal democracy: the representation of the popular will, the accountability of government to the public so as to ensure meaningful consent, and cooperation between the executive and legislative branches. The sympathetic critics, dwindling in number and influence, appreciated some of the changes in the justifications for administration. Now however, with the experience of wartime experiments with ‘‘democratic

Democracy and Accountability in the Administrative State

75

administration,’’ they set about exposing even deeper tensions between bureaucracy and democracy. These centered on questions of power, cooptation, and exclusion. Other critics became disillusioned with trying to democratize administration and dropped the notion of giving greater voice to the excluded and underrepresented in administrative processes. Instead they concentrated on constraining administrative elites. This was to be accomplished by making sure there were proper legal and political checks on their power and by making them more accountable to citizens. Both groups, then, shared the idea that shoring up American democracy, whether in rhetorical or institutional terms, was more important than it had been during the 1930s. As part of this project, bureaucracy needed to be reformed to guard against totalitarian tendencies and to showcase the superiority of American democracy. Herring’s largely positive appraisal of democratic government in the United States exemplifies the view that came to dominate among American academics. At the same time, it set the stage for another round of scrutiny of the problems inherent in an administratively based democracy. Deviating from the course taken in the 1930s by most sympathetic critics of the administrative state, Herring focused his first work written during the war, The Politics of Democracy, almost entirely on one of the tasks laid out by Finer—defending American democracy in its current form. Given world events, Herring recommended that he and his fellow academics instead embrace ‘‘a sympathetic understanding of the weaknesses of our system.’’ Predictably, his own prior sympathetic criticisms were barely in evidence.103 In his wartime effort, Herring portrayed democratic institutions as flexible, procedurally sound, and realistic.104 Simultaneously, the status of democracy as a stable political system had grown more ‘‘uncertain,’’ given the presence of the totalitarian menace, than when Herring had first questioned the antidemocratic tendencies of the administrative state.105 According to Herring, the threat of totalitarianism to American democracy demanded that political scientists temper their ‘‘highly critical attitude toward our institutions and their operation’’ and appreciate the ‘‘working philosophy’’ that held American institutions as superior to other, competing creeds (such as communism and fascism).106 Specifically, Herring emphasized the importance of individual autonomy in maintaining democracy’s ‘‘vitality,’’ an idea that intellectuals generally rejected in the 1930s in favor of theories holding that human beings are to a great extent products of their environment.107

76

Chapter 2

With the uncertainty brought about by the war and the blatant successes of totalitarian regimes, Herring also deemphasized the power inequities and the drawbacks of political conflict that he had stressed in his earlier work. Now, with other political scientists, he lauded the American system’s ‘‘toleration’’ of diverse viewpoints and interests and argued that democracy’s ‘‘flexibility and experimentation in the adjustment of human affairs’’ would result in ‘‘a science of society.’’108 With respect to administrative governance, Herring concluded that ‘‘no uniform pattern of bureaucratic development is feasible. An experimental and diversified approach is best suited to the nature of the problem. . . . Bureaucracy will be impelled to adjust to the demands which the public makes upon it now and in the future.’’109 This view represented a notable departure from Herring’s earlier lamentations about the undermining of administrative policymaking in the public interest by partisan bickering and self-serving pressure groups. With his new appreciation for the freedom afforded by bureaucracy, Herring expressed a form of pluralist thought that would become the dominant credo of postwar American political science.110 Postwar pluralism, inflected much more strongly by totalitarianism than its prewar variants, held groups to be important mediators between the individual and the state, the conduits for civic participation in an increasingly massified society. More important, it saw interest groups as constantly wrangling, in more or less constructive fashion, for the policy outcomes of their choice. Administrators fulfilled their role by being responsive to these political pressures. In this way, interest group politics became the very definition of democracy. This was no lament about the power of the state. In fact, Herring sounded a lot like his more statist colleagues: ‘‘More government by the state does not necessarily result in less freedom. The control exercised over an individual by a private agency may be far more tyrannical than anything the state imposes.’’111 Despite Herring’s new appreciation for group conflict, he clung to the idea that government, and especially the bureaucracy, should play an integrative role, an idea that many pluralists rejected in favor of a view of the state as an instrument primarily for officiating rather than reconciling group differences. As Herring put it, ‘‘The common loyalty of officials and their common task give them a mutual bond that exists on no comparable scale among the rest of society.’’112 The threat of totalitarianism, Herring asserted, made integration all the more important, with political conflict ideally reserved for less precarious times. Yet Herring’s view of integration had become noticeably more

Democracy and Accountability in the Administrative State

77

organic. ‘‘Integration cannot be superimposed,’’ he insisted. ‘‘It must grow within the society.’’113 This logic brought Herring from a state-centered to a society-centered model of democracy: a democratic society makes a democratic state, not the other way around. And while Herring was reluctant to reduce public policy to a mere contest of interest groups—for example, he did not entirely dismiss the idea that ‘‘less articulate interests’’ would have to be advocated for by governmental actors—he now seemed more doubtful that government officials could serve any autonomous ideal of the public interest. Herring’s skepticism about divining the ‘‘public interest’’ stemmed from a growing anxiety about totalitarianism. For although he desired a degree of integration in American democratic life and politics, he resisted the false, and forced universalization of one particular interest or idea that he associated with totalitarianism, the interest of the proletariat under Stalinism and that of a master race under Nazism. By extension, both the value and the toleration of diversity—in beliefs, mainly, but also in identities and backgrounds—grew in importance in Herring’s thinking, as they did in the broader political culture. At the same time, he continued to recognize that the administrative state required some form of legitimacy, some basic acceptance by the public. Herring drew together his aspiration for integration and his idealization of diversity under the rubric of ‘‘democratic bureaucracy.’’ For this, he suggested that administrators be drawn from a ‘‘[broad] social base’’ even at the cost of sacrificing a degree of expertise and efficiency. This arrangement was the most likely to inspire the ‘‘broad base of public confidence’’ that a ‘‘democratic bureaucracy’’ required.114 As Herring’s work suggests, the effort during the war to argue, and not merely to declare, that democracy was a fundamentally better form of political organization than its totalitarian rival proved difficult. With respect to administrative functions, for example, drawing a sharp contrast between modern democratic and totalitarian states was not altogether easy (and certainly more difficult than the Cold War ideologues would later claim). While the threat of totalitarianism led many political scientists, philosophers, and jurists to exalt actually existing American liberal democracy, as many historians have emphasized, others hesitated in granting the American system such clear-cut superiority. The country, some argued, faced two urgent and potentially contradictory challenges: first, to match and ideally surpass the organizational and administrative ‘‘efficiency’’ of the fascist war machine, and, second, to protect vigilantly American democracy and the

78

Chapter 2

rights of individuals from the rapidly growing administrative apparatus. The first of these challenges required ‘‘us’’ to be like ‘‘them’’ in investing in administration, even if merely to defend American society militarily and thus preserve the important normative differences radically separating ‘‘us’’ from ‘‘them.’’ This tension arose from the Nazis’ stunningly successful military aggression in the early years of the war. That success seemed to suggest that the American state (within reason) would have to meet the Germans on their own ground in order to defeat them. The dilemma of how far to go in sacrificing democracy in order to save it coursed through a book that Herring published just a year after The Politics of Democracy. Here Herring confronted directly the vexing challenge of simultaneously emulating and overcoming totalitarianism: ‘‘The terms of needful alteration are set not by the conflicts of interests within a single state but by the competition of the enemy state. Thus if this rival makes changes that increase its power and effectiveness its competitors must keep pace. This does not mean that the opponents of Nazi Germany must become Nazified if they are to resist, but it does mean that totalitarian states can be opposed only through an equally effective mobilization of resources.’’115 Herring assumed both the will and the ability of the United States to match or exceed the efficiency of the Nazis, and about this he was right. But he was not right to assume that the United States could fight totalitarianism (or any regime for that matter) only on the latter’s terms, and his uncritical acceptance of centralized, command-and-control administrative authority suggests at best a double standard for normal political times and times of emergency. It also anticipated the debate during the 1940s in which liberal critics, many of them German refugees, argued about how far to take that distinction and, correlatively, to what degree the United States should ignore the legal constraints at the heart of a constitutional democracy even with the aim of preserving it. At the end of this book, Herring did return to the idea that only democracy could sustain the freedom of the individual and society. The obvious admiration of some of what the Nazis had been able to accomplish impelled this way of thinking, which, said Herring, also expressed the logic of an industrialized society and a bureaucratic state. But even those structural factors did not necessarily dictate how the war would or could be fought. The path chosen was one of total war, a choice that would necessarily chafe against the democratic values and institutions the United States fought to defend.

Democracy and Accountability in the Administrative State

79

Notwithstanding Roosevelt’s rights-oriented Four Freedoms speech in 1941, the war did not showcase American democracy at its best. Roosevelt’s speech itself exposed the tension between the rights of the people in a democracy and the command-and-control demands of war and administration.116 Roosevelt spoke in one breath about ‘‘a decent respect for the rights and dignity of all our fellow men’’ and the clear commitment of the ‘‘public will’’ to fight for the nation’s security above all else. In another, he asserted, No one can tell the exact character of the emergency situations that we may be called upon to meet. The nation’s hands must not be tied when the nation’s life is in danger. We must all prepare to make the sacrifices that the emergency—almost as serious as war itself— demands. Whatever stands in the way of speed and efficiency in defense, in defense preparations at any time, must give way to the national need. A free nation has the right to expect full cooperation from all groups. A free nation has the right to look to the leaders of business, of labor, and of agriculture to take the lead in stimulating effort, not among other groups but within their own groups.117 The intellectual and military confrontation with totalitarianism led to an essential rethinking not just of democracy but of the administrative state. The result was reform within the administrative process itself and a greater emphasis on checks—whether judicial or legislative—on the process from the outside. The considerable discretion that many administrators had during the emergency conditions of war and the ways in which that discretion manifested itself—whether in the president’s executive order interning Japanese and Japanese Americans or in the price controls and rationing mandated by the Office of Price Administration—stimulated new interest in circumscribing the power of administrative agencies, and eventually the executive itself. Two types of limits on administrative power were proffered. The first, and most abstract, was the idea of ‘‘administrative responsibility.’’ This idea emanated from critical liberal intellectuals who were searching for various means of holding administrators to greater account. Depending on who was articulating it, the concept meant that the individual administrator should use his own conscience to prevent arbitrary or unfair actions, or that

80

Chapter 2

there should be external political checks on bureaucratic officials, including outright dismissal.118 The second and considerably more contentious limits were legal and procedural constraints on the actions of the agencies, either through judicial review or through the judicialization of the administrative process itself.119 These efforts tended to mix principle with self-interest, and were spearheaded by professional lawyers who sought more influence in the administrative state. After years of failed efforts by the American Bar Association and its antiregulatory allies to push irresponsible and highly politically motivated legislation, their efforts culminated in the much narrower and more reasoned Administrative Procedure Act (APA) of 1946.120 The APA provided that most aspects of the administrative process be publicized; established constraints on agency rule making; promulgated additional rules about adjudicatory processes within the agencies; and, finally, allowed for greater judicial review of agency decisions. Uncritical New Dealers saw the APA as an assault on the New Deal itself. At the time of its passage, and despite the support of many liberal Democrats in Congress, the APA was roundly condemned by most New Deal liberals and scholars of public administration as a ploy to impose on regulatory agencies a new arsenal of laws aimed at undermining the efficacy of the regulatory process.121 In a snide dissection of the law published in the Public Administration Review, the political scientist Vincent Barnett derided the APA reforms as desperate measures taken by lawyers and their corporate clients based on ‘‘a basic distrust of and hostility to governmental action in general and the activities of regulatory bodies in particular.’’122 Since 1937, these constituencies had lost faith in the courts to overturn administrative decisions challenged by the regulated entities. However, Barnett insisted, the APA and other administrative reforms reflected a refusal by its backers to acknowledge that the traditional separation of powers no longer applied. The supporters of the APA had simply tried to make administrative agencies more like courts.123 Despite their vituperative response, these same liberal thinkers acknowledged that the law codified reasonable practices that had evolved over the past several years.124 Yet the APA went beyond those practices in important ways by, for example, restricting certain agencies’ rule-making powers. On the whole, much of the support for the APA seemed a good-faith effort to stem the tide of growing bureaucratic discretion as much as a self-interested power grab by the bar, an indication that the ideological hegemony of the administrative state was showing its first cracks. The reputation of the APA

Democracy and Accountability in the Administrative State

81

as ‘‘an effort to turn back the pages to the early 1930s and beyond’’ disturbed those social scientists and legal academics who hoped bureaucratic government and regulatory policy would retain the dominance it had established later in the decade.125 This reputation was ill deserved. The APA, in fact, affected administrative governance only at the margins.126 An awareness of the limited practical effect of the APA influenced the small handful of far-sighted sympathetic critics, who generally embraced the act. Some believed that publicity and standardization made the administrative process more amenable to constitutional democracy by giving Congress oversight of administrative agencies and limiting, in reasonable ways, the discretion of administrative officers. While discretion could prove an important instrument for the purposes of planning and economic regulation, it was also bound to hurt citizens who were dependent on the government for some aspect of their livelihood or left out of its orbit altogether. Similarly, some pro–New Deal supporters of the APA recognized the law’s potential through its due process provisions to empower individuals and groups who relied upon the federal government’s growing administration of social services. In the words of the social critic Alfred Bingham, ‘‘Some of the alphabetical administrative agencies, such as the NLRB and the SEC, have sought to regulate the most powerful business and financial interests in the country, and able spokesmen, notably the American Bar Association, have been quick to assail any procedure they thought irresponsible or arbitrary. It is well that they have done so, for their insistence on administrative due process has established safeguards for weaker interests and humble individuals. The courts to which they have appealed have laid down rules of procedure adapted from their own ancient processes.’’127 This view, penned in 1942, while wildly optimistic about the APA’s results, also proved prescient. There was indeed throughout the 1940s an increasing turn to judicial oversight to circumscribe the administrative state. As the legal scholar Reuel Schiller has pointed out, after the war a growing number of legal thinkers began to question the unfettered power of expert administration and to insist upon legal reforms to constrain ‘‘irresponsible and arbitrary’’ action by administrative agencies. Citing totalitarianism as a prime motivator, Schiller shows how former New Dealers such as Jaffe looked toward judicial review as one remedy for administrative abuses of power but also hoped that Congress would provide more specific directives toward agencies.128 How much of a change this represented for

82

Chapter 2

Jaffe is not entirely clear. In his writings of the 1930s and 1940s, Jaffe was unclear about how big a role the courts should assume in reviewing legislative and administrative decisions. For example, he thought it important for the judiciary to ‘‘break an impasse’’ in Congress over the interpretation of a statute as a result of competing interests. ‘‘But to rely on it [judicial review] too much is dangerous to the health and prestige of a democratic legislature,’’ he argued.129 Jaffe was under no illusion about the limitations of Congress’s representative function, and those limitations would only amplify analogous power imbalances within administrative government. Whatever the role for the courts, Jaffe’s interest in democratizing agencies through greater representation and participation of affected groups diminished after the war. However, the issue, once the domain of the sympathetic critics, by this time had become a more widespread concern, if only temporarily.

‘‘Representative Bureaucracy’’ Along with legal reform came new questions about whether any meaningful form of democratic participation and representation could exist in a heavily bureaucratized polity. The attempted utilization by wartime agencies of ‘‘grassroots’’ participation in administration—as in the instance of the OPA—spurred a reconsideration of the relationship between the citizen and the state, democracy and planning. Scholars also gave renewed attention to the potential for Congress to provide a check on what Pound had dubbed ‘‘administrative absolutism.’’ All told, these concerns undermined administrative ideology but did not entirely upend it. Indeed, Herring’s revised understanding of the administrative state suggested the increasing importance of diversity in the bureaucracy itself. Like him, many scholars and practitioners began to believe that social diversity was as or more important than technical diversity among administrative officers. Still, for the believers in public administration this was often an instrumental view of diversity: public servants ought to reflect the broader population in order to secure greater ‘‘stability’’ among public institutions. With a more diverse bureaucracy would come greater public faith in government and hence greater cooperation in the execution of public policy. In Herring’s words, ‘‘Public confidence is likely to result when officials are drawn from every stratum of society and every section of the nation. Such diversity makes our public servants more representative in character. . . . Some degree of

Democracy and Accountability in the Administrative State

83

specialized training may well be sacrificed to recruitment from a broader social base, with gain rather than loss in future stability of government institutions.’’130 Since most students of public administration, and indeed most political scientists, still clung to the belief that the legislature was incompetent (or worse), they directed pluralist thought away from the legislature and toward administrative bodies. The most radical argument held that the bureaucracy was actually more representative than Congress because it was accountable to a wider variety of people and interests. The administrative state ‘‘is itself a medium for registering the diverse wills that make up the people’s will and for transmuting them into responsible proposals for public policy.’’ By contrast, ‘‘important and vital interests in the United States are unrepresented, underrepresented, or malrepresented in Congress. These interests receive more effective and responsible representation through administrative channels than through legislation.’’ The coup de graˆce of this argument, although at odds with the idea of an autonomous thing called ‘‘the bureaucracy,’’ was the familiar refrain that bureaucracy was ultimately accountable to the president, the only nationally elected leader and hence the most broadly representative.131 On the other hand, with the delicate balance of Congress and the presidency achieved under Roosevelt but a ghost of the past, students of public administration could now expose with new vigor the ways in which Congress itself warped representative and deliberative democracy. George Graham, a political scientist at Princeton University, articulated doubts about legislative institutions in graphic terms, eviscerating more than two hundred years of liberal political theory in the process: ‘‘The claim of legislators to superior moral force by reason of their representative function is collapsing in a cloud of eighteenth century dust. There stands revealed grossly inadequate representation of a steadily growing urban populace. . . . Within legislative assemblies, so constituted, is apparent an amazing distortion of authority, vested in offices and committee chairmanships according to a system which can only have an arbitrary result.’’132 Most social scientists, however, rejected both these extremes and adopted the position that administrative institutions and Congress were ‘‘comparable’’ in their representative function.133 What ‘‘representative bureaucracy,’’ as it came to be called, actually meant varied considerably. Most often political scientists and scholars of public administration argued in an idealized fashion for various mechanisms of

84

Chapter 2

participation in administrative processes and entities. The participants could be individuals or interest groups, and the means by which they would participate ranged from advisory boards to committees, which could function at either the national or local level. Tripartite corporatist schemes were also considered, but often critically, as many scholars took from the history of the NRA the idea that the most powerful interests would predominate in these arrangements. The new interest in the representative function of bureaucracy by orthodox adherents of public administration did not necessarily result from a commitment to democratic principles. For many social scientists, it was part of an attempt to create greater legitimacy for an administrative state less popular with the American public than it had been during the 1930s. Analytically, it harkened back to the recognition that administration was infused with politics and, as such, it had to reflect ‘‘the purpose of the state,’’ which was defined not substantively but formally: to represent the people.134 Another reason for the attention to representative bureaucracy was the growing awareness that bureaucracies had autonomous properties that enabled them to govern quite apart from other branches. Indeed, at its most powerful, bureaucracy seemed to take on a life of its own, even if it did not quite constitute ‘‘a headless fourth branch of government.’’ This made it all the more important that bureaucracy be understood on its own terms, and not simply as a technocratic machine that carried out the orders of the president. A primary reason for this new way of thinking was the entry in the 1940s of sociologists into the field of public administration. Most came to the field via organizational theory, which predisposed them to think of organizations, of which bureaucracy was a type, as formal institutions with internal rules and norms impervious to or in conflict with external forces. Extending this internalist view of organizations, the more subtle and critical thinkers—often students of Columbia University sociologist Robert Merton—did not view organizations as strictly rational creatures.135 One such student of Merton’s in the late 1930s and early 1940s was Philip Selznick. By 1942–3, when he began work as a fellow at the Social Science Research Council and conducted the field research that would form the basis of his book TVA and the Grass Roots (1949), Selznick was already interested in bureaucracy, and not just in narrow empirical terms, the norm among social scientists. In fact, Selznick became one of the first sociologists to systematically complicate the picture of bureaucracy and democracy by closely examining the internal workings of the former. Selznick’s approach

Democracy and Accountability in the Administrative State

85

to organizational theory helped to explain what he, following Merton, called the ‘‘unintended consequences’’ of bureaucracy. The idea that the structure of institutions generated unintended consequences had been gestating in the sociological lab of structural functionalism for some time. Throughout the New Deal and the war, such consequences became starkly and tangibly apparent. According to Selznick, unintended consequences evinced the myriad social constraints that inhibit organizations from achieving their intended goals and thus distort their fundamental identity and purpose. But it was not just any goal that interested Selznick. His primary concern was with democracy, to which all public institutions in a democratic state presumably aspired. Hence he turned to the TVA as a case study to test his hypothesis that a host of variables inhibited ‘‘formal organizations’’ from fulfilling their democratic functions.136 The TVA held itself out as a new—and ultimately successful—experiment in reconciling planning and democracy. Selznick’s widely read study showed the ease with which good intentions could go awry in an administrative setting. He also exposed the facileness of most of the orthodox solutions for bringing democracy to bureaucracy. Besides making a valuable theoretical contribution to sociology, his normative accomplishment was to demonstrate the importance for agencies to keep the commitment to democratic means at the forefront of their mission and operation. Selznick’s realism led him to emphasize democracy as a means or ‘‘technology’’ of values that, in the case of the TVA, was obscured and distorted by the organization’s official ideology of ‘‘ ‘grass roots’ administration.’’137 The TVA leadership touted democratic planning, but Selznick exposed the decidedly undemocratic elements in this bureaucracy and the reasons for their existence. Despite his emphasis on means, the ethical component of critical liberals was not lost in his work. Selznick sought to determine what the doctrine of ‘‘ ‘grass roots’ administration’’ meant to those who articulated it, how the TVA tried to realize the doctrine in practice, and how its actions in this regard shaped ‘‘the moral posture and competence of TVA as a government agency.’’138 Answering these questions, Selznick painted a devastating portrait of the TVA—so devastating that even the radical sociologist Alvin Gouldner attacked him for making democratic governance seem an impossible dream rather than an achievable reality. In addition, liberal adherents of administrative ideology such as Wallace Sayre faulted him for having arrived at ‘‘a

86

Chapter 2

much more pessimistic judgment of TVA than informed observers will be willing to accept.’’ Sayre proclaimed that a ‘‘measured appraisal of TVA . . . still eludes the social sciences.’’139 The response to Selznick’s condemnation of the TVA was not, however, uniformly negative. A fellow sympathetic critic, Dwight Waldo, a scholar of public administration at the University of California, Berkeley, where Selznick would later teach, rejoiced that Selznick’s study ‘‘reveals that at least one toe of this idol of the liberals is something less than fine gold.’’140 Selznick’s work, which focused almost exclusively on the agricultural features of the TVA and not on its better known and more successful efforts at rural electrification, showed that the agency’s attempt to involve a relatively wide variety of interests, organizations, and personnel in its policymaking decisions and execution ended up diverting the TVA away from its stated goals, foremost its doctrine of grassroots administration. Essentially, the TVA’s grassroots doctrine was a myth, ‘‘a protective ideology’’ that masked the fact that major agricultural interests had infiltrated the agency and used it to serve their own interests. TVA officials, meanwhile, convinced themselves that working with the American Farm Bureau Federation and affiliated land-grant colleges entailed the representation of local or grassroots interests. In a preface to the 1966 edition of his book, Selznick explained, ‘‘My conclusion was not merely that TVA trimmed its sails in the face of hostile pressure. More important is the fact that a right wing was built inside the TVA. The agricultural program of the agency was simply turned over to a group that had strong commitments, not only to a distinct ideology but to a specific constituency. This group then became a dynamic force within the TVA, able to affect programs marginal to the agricultural responsibilities of the agency but significant for conservation and rural life.’’141 Selznick’s point was not that the takeover of the TVA’s agricultural programs by the powerful American Farm Bureau Federation happened behind the backs of the TVA leadership. Rather, this enormous unintended consequence resulted from a series of institutional ‘‘commitments’’ by the TVA, many of which were understood to be democratic. Selznick invoked the concept of commitment to describe the constraints that organizational officials place on the actions of others. In the case of the TVA, the agricultural division became committed to certain goals on behalf of the land-grant colleges, which worked closely with the Farm Bureau and whose representatives came eventually to work inside the TVA, running its

Democracy and Accountability in the Administrative State

87

agricultural programs. In turn, the ‘‘TVA’s agricultural leadership brought with it ideological and organizational commitments which influenced overall policy.’’142 Rexford Tugwell, a progressive economist who served as Henry A. Wallace’s undersecretary of agriculture, described this phenomenon as a ‘‘curious arrangement by which the government subsidized pressure on itself.’’143 For Selznick, it was an instance of informal co-optation, in which the interest group is absorbed into the organization, but always at a price. In this case, the price involved discriminating against African American farmers and the thwarting of soil conservation programs and public landownership. But this was not the only form of ‘‘democracy’’ attempted by the TVA. Selznick labeled a second democratic strategy ‘‘formal cooptation,’’ which had been widely adopted during the 1930s before reaching new heights during the war. This administrative technique, promoted by its advocates as a democratic mechanism, involved working with already extant local voluntary associations or creating them, if necessary. One of the main purposes of this form of co-optation was to create legitimacy for the agency by giving it roots in the community in which it worked and which it sought to shape. This type of manipulation of local interests represented for Selznick a ‘‘new method of control’’ that arose from the massification of society. As a society became massified, he observed, fewer and fewer citizens took part in organized groups and as a result possessed virtually no political power or voice. Co-optation only appeared to empower the public, serving instead as another means for its subordination to state power. Selznick went so far as to draw parallels between ‘‘the voluntary associations set up by the democratic (mass) state . . . and the citizens’ associations of the totalitarian (mass) state’’ established through ‘‘the devices of corporatism.’’ In times of war, he added, ‘‘the administrative techniques of avowedly democratic countries and avowedly totalitarian countries tend to converge.’’144 ‘‘Participation,’’ for Selznick, was therefore not an inherently democratic concept. It could mean simple ‘‘involvement’’ or, worse, coerced conscription in state-controlled initiatives and organizations. Truly democratic participation, he insisted, would grant citizens real power, ‘‘an actual role in the determination of policy.’’145 This theory assumed a kind of intrinsic democratic quality to local participation. Tugwell, who had long fought for greater centralization and national control over the TVA against its more populist chairman David

88

Chapter 2

Lilienthal, drew a different lesson from the phenomena Selznick had observed. He contended that Selznick’s book showed primarily the foolishness of the policy of local control, even for committed democrats. ‘‘If we look at the structure of American agriculture,’’ he wrote, ‘‘we must see that grass-roots decisions are not likely to be democratic, i.e. to result from the participation of all concerned.’’146 In this, he reiterated the problem of ‘‘class and caste’’ interests and hierarchies among farmers that prevented them from working together in democratic and egalitarian ways. But Tugwell did not propose, as others had, that agencies make sure that they included representatives of all affected groups in policymaking processes. Framing a debate that continues to trouble democratic theorists today, Tugwell insisted that inegalitarian social conditions had to be eliminated, or at least substantially mitigated, before there could be any chance for a meaningfully democratic administration to emerge. ‘‘The way to get democratic administration is to begin by organizing a central government strong enough to eliminate those conditions which make much of our national life grossly undemocratic,’’ wrote Tugwell and his coauthor Edward Banfield, a political scientist who worked in the Farm Security Administration for much of the 1940s. ‘‘In the case of agriculture, for example, we need a government strong enough to secure the movement of underemployed farm folks into more productive employment; this would do more than anything else to erase class and caste lines and make local democracy possible. But this is something that can be done only by a strong [central] government; it cannot be done by local associations composed of the very people whose vested interest must be relinquished.’’147 According to Tugwell’s more radical position, for democratic participation to take root, inegalitarian social conditions had to be thoroughly and systematically eliminated. Other critics, as we have seen, took nearly the opposite position: that the priority should be on procedural reforms in order to enable the participation of all affected groups and individuals.148 Create a popular consensus based on an informed citizenry by changing the social conditions that inhibit access to knowledge and providing the material means by which to participate from a position of relative material equality, make sure an organization is unified around definite purposes and has the capacity for genuine participation before involving outsiders: these ideas were neither pluralist nor relativist. Nor were they realized at the time. The important point is that they did not lie outside the bounds of liberal discourse about bureaucracy and democracy, at least not in the 1940s. They

Democracy and Accountability in the Administrative State

89

would largely fade in the 1950s, when the vestiges of interest in bureaucracy were given over to social and cultural analyses of power elites and organization men. Nevertheless, long before the full-fledged Cold War, World War II itself raised a new set of issues about the use of state power. Even though many, such as Herring, chose to temper their concerns, other liberals remained unsettled by an ever-growing leviathan and the greater degree of recourse to administrative discretion and emergency rule both at home and abroad. Yet much of the anxiety expressed about state power came not from principled critiques but from self-interested groups who saw their power waning in the warfare state. This was the case in part with the professional lawyers who led the way in passing legislation that increased the powers of judicial oversight of administrative agencies. In addition, interest groups such as organized labor saw their political influence decline. During the war, maximizing the production of war-related goods became the foremost goal of public policy, while the rights of workers seemed less urgent. Average citizens also had few means of redress even as the federal government exerted greater control over their lives through rationing, price controls, and military subventions, among other intrusions. Nor did these programs seem particularly well managed or accessible. This, in turn, raised doubts among liberal intellectuals about the respect that elite administrators had for democracy. As the legal historian Reuel Schiller has written, ‘‘The real significance of wartime administration was not that it evoked such [negative] reactions from the long-standing enemies of the administrative state. Rather, it is that people’s experiences with the War Production Board and the Office of Price Administration undermined the faith that many liberals had in expert administration.’’149 For many, the war only reinforced the belief that democratic consent was only one, relatively minor ingredient in the New Deal’s recipe for governing.150 Simultaneously, the concern over the particular workings of democracy diminished in importance during the war—as it seemingly always does—among the panoply of worries about what the increasingly powerful administrative state might mean for the future of American constitutional democracy. Hence prewar debates about participation, representation, and fair procedures seemed less urgent in light of an existential threat to democracy itself.151 They were kept alive, however, by a group of liberal-minded intellectuals who possessed the distance, the experience, and the prescience to realize that these issues, far from disappearing, had become more important than ever.

Chapter 3

The Rule of Law When the State Goes to War

The next big test for the legitimacy of the liberal state inevitably came with the build up to and execution of World War II. Not only did the state expand in size and scope; the federal government also ruled more than ever by fiat and discretion—by executive order, emergency decree, and administrative rule making. The United States was hardly alone in participating in these trends. As observers of political institutions in the United States and Europe were well aware, much of the world was moving toward executive, bureaucratic, and emergency-based rule—democracies and totalitarian dictatorships alike.1 Total war sped up and deepened these trends. The combination of expanding bureaucratic governance, growing structural similarities between democratic and dictatorial states, the particular nature of the Nazi adversary, and the crisis conditions of war and its aftermath challenged anew the American state’s commitment to democracy and the protection of individual liberties. But most of all these wartime conditions prompted one of the most vigorous debates in recent American history over the status of the rule of law ideal in the modern state. The direct confrontation with a more successful form of the administrative state, one that threatened the very existence of liberal democratic institutions, elicited new questions about the importance, even the utility, of the rule of law in an increasingly authoritarian and bureaucratized world. To what extent should there or could there be a fealty to the rule of law when constitutional democracy itself was at stake?2 And if that fealty were abandoned, did it matter whether there was

The Rule of Law When the State Goes to War

91

a ‘‘legal suspension of law,’’ as opposed to a more direct and transparent appeal to emergency dictate and discretionary authority?3 Totalitarian rule had existed apart from the war, of course. By their very assertion of unchecked political power, totalitarian regimes threatened the survival of the rule of law ideal. But a violent encounter with that system forced the rule of law ideal into the crucible. The administrative state was now a full-fledged emergency state as demonstrated by its actions both at home and abroad. Most statist liberals, including those concerned about the costs of the administrative state to constitutional democracy, believed that a temporary resort to ‘‘totalitarian’’ governance—with its attendant relaxation of legal constraints and democratic accountability—was both necessary and proper during the crisis of war.4 Japanese internment, Hawaiian martial law, and a slew of emergency executive orders were little discussed, even by the more critical liberals. War, they reasoned, increased the need to act according to necessity and to sacrifice many of the usual safeguards against the exercise of arbitrary rule. Less often acknowledged by statist liberals was that this war, a total war, also drew heavily upon the resources of the administrative state, accentuating those tendencies of administrative governance that stood in tension with American constitutional democracy. Hence this war, fought in the name of legality and democracy and in a context in which the commitment to these values was already strained by administrative hegemony, cast a brighter light on the legitimacy of state institutions than had any previous war.5 As a worried political scientist, Robert MacIver, observed, ‘‘In modern times war is inevitably conducted by semi-dictatorships, thus preparing the way for actual dictatorships.’’6 President Roosevelt acknowledged as much in a 1942 Labor Day address to Congress to justify a unilateral change in the Emergency Price Control Act of 1942 based on the enormity of the war: ‘‘This total war, with our fighting fronts all over the world, makes the use of executive power far more essential than in previous war [sic].’’7 Statements such as this made plain the need for restraints on the use of power of all kinds, but these were not normal times. A return to legal principles, it seemed, was necessitated by the rise of Nazism and the ensuing global war.8 In response, critical liberal legalists, most of them German e´migre´s, reasserted, even valorized the rule of law ideal as a central component of statist liberalism.9 ‘‘Law is at the very core of what we are fighting for,’’ wrote the constitutional scholar Carl J. Friedrich.10 By law, Friedrich meant the rule of law, which itself had a particular

92

Chapter 3

connotation for the German e´migre´s and like-minded American thinkers. At its most general, the rule of law ideal signified that legal norms and institutions should serve as a constraint on and set the conditions for the legitimate actions of government.11 As with the newly consolidated administrative state, the totalitarians and their war provided a stark reminder of the need to constrain state power in order to ground liberal democratic institutions in more predictable and less discretionary foundations. The conception of law and legality in one of the few liberal democracies left unscathed by fascism would be crucial to how the lessons of the war would be perceived, how the new statist liberalism would emerge from the crisis conditions of war and occupation, and how the new international community, under U.S. leadership, would be structured. The rule of law discourse analyzed in this chapter and the next emerged before the Cold War and continued to inflect political and legal debates for decades to come. Crucially, to notice and be worried about this diminution in the role of traditional legal norms along with the trend toward greater bureaucratization was not at this moment necessarily to invoke the threat of Soviet communism. Nazism was the leading actor in this legal and political drama. The existence of this legalistic discourse in the 1940s is not often noticed by scholars because it competed with the rise of an uncritical defense of American-style constitutional democracy as an ideological weapon against the totalitarian threat. This normative Americanism was a pre–Cold War development that became a rigid, all-encompassing worldview only when communism replaced Nazism as the most threatening totalitarian enemy.12 Nazism, much more than Soviet communism, highlighted the importance of the principles that lay behind the rule of law ideal if democracy were to be preserved and strengthened in the face of administrative rule and emergency politics.13 Nazism promoted a conversation over the rule of law in the modern state in part because the highly bureaucratized and hierarchical Nazi regime was oddly careful to present itself as legitimate, even lawful. Unfettered arbitrary power and extralegal activity in fact predominated. But that did not stop the Nazi regime from asserting a legal basis for their power. For example, they never abrogated the Weimar Constitution and claimed their power rested on a legislatively approved Enabling Act of 1933. In addition, the Nazis retained portions of the Weimar system’s laws and institutions while ignoring those that did not meet their ideological needs. These residua of statutes, rules, and ordinary courts

The Rule of Law When the State Goes to War

93

they reserved for the areas of civil society least disturbed by the ‘‘Leadership Principle.’’ This useful fiction held that all power emanated from Hitler and expressed itself in a hierarchical order that demanded allegiance to one’s superiors. This leadership had the power to issue ‘‘laws,’’ but these tended to be expressed in the form of general principles and sentiments such as the ‘‘sound feeling of the people.’’ And these ‘‘laws’’ took precedence over any existing legal codes. These vague standards allowed officials virtually unlimited discretion in interpreting positive law and the ability to force the law into conformity with political dictates.14 Nominal legal instruments were matched, in more politicized areas such as criminal law, by a kind of ‘‘legal terror.’’ The Nazi Party and the organizations under its control were largely exempt from law in general and from criminal law entirely. By removing terroristic acts from legal sanction, the Nazis protected the law from terror and terror from the law.15 Finally, many of the ‘‘laws’’ the Nazis promulgated either were unwritten or contained language familiar to the Western legal eye. It was the meaning of those laws that was radically different. But only those who had the power to enforce or interpret them knew their true intent. Not surprisingly, most of the German legalists argued that political power unconstrained by law was the final arbiter of right and that the rule of law had been rendered meaningless. The relative unimportance of communism and the decisive influence of Nazism in the rule of law debate reflected as well the people involved. To a large extent, the existence of the debate can be traced to the influx of a group of liberal legalist intellectuals to the United States.16 All were European refugees from totalitarianism, and almost all were German and Jewish, but a few were Germans forced from their homeland for political reasons and yet others came from fascist countries such as Austria and Italy. Trained in law and politics, these e´migre´ intellectuals began to arrive in the United States in the 1930s, but it was in the 1940s that their writings first began to have an impact beyond their own circle. Men and women such as Hannah Arendt, Arnold Brecht, Ernst Fraenkel, Wolfgang Friedmann, Carl J. Friedrich, Friedrich von Hayek, Otto Kirchheimer, Karl Loewenstein, and Franz L. Neumann were all legalists in their own fashion and all liberals in their faith in formal legal constraints on state power. They pushed the debate over the rule of law ideal onto the pages of academic journals and the popular press, and even into the halls of government.17 This remarkable group of intellectuals also taught law and political science and served as

94

Chapter 3

legal advisers and consultants to the U.S. government throughout the tumultuous period leading up to, during, and immediately following the war.18 Unfortunately, they are easily missed by legal historians, as they tended not to teach in American law schools. Instead, with their European training, they were relegated to political science departments where they could teach public law in accordance with the more theoretical approach in which they were trained. Without the Germans, the rule of law debate in the United States is depicted narrowly as a tug-of-war between a conservative defense of a ‘‘classical’’ rule of law tradition associated with common law protections of private property and a progressive attack on that tradition for holding back an administrative state necessary for advancing economic regulation and social services. Even from their marginal outposts the liberal legalist e´migre´s reshaped the terms of the debate about law and its relationship to the democratic state. Their most notable contribution was to theorize a concept of the rule of law under conditions of duress. In so doing, they injected into American jurisprudence, and ultimately into the larger universe of liberal political culture, ideas about the nature of justice and democracy within a liberal state faced with its own hierarchical tendencies. Based on the liberal rule of law ideal, as they understood it, these ideas centered on the use of law to constrain bureaucrats and legislative majorities and the ways that the rule of law could legitimize emergency power in the wake of an existential threat to democracy. The invocation of an emergency, they had learned from their experience in Germany, was all too often a cover for destroying legality and democracy.19 In addition, many of these analysts, embracing a concept of formal law, pointed to the fact that fair legal procedures, rather than being simply neutral rules of the game that maintained existing institutions, guaranteed personal freedom and equality. This invariably benefited the weaker party, the ‘‘small fry’’ who were easily overwhelmed by the bureaucratic process or favored by the abandonment of general law for more flexible, tailored legislation.20 As such, formal legal procedures and the rational legal norms that underpinned them could be mobilized as instruments for political and social change through the accountability and equality they enabled.21 The German Problem, as I call the constellation of concerns raised by Nazi Germany, resulted from three developments: (1) ‘‘the failure of the democratic experiment’’ in Germany, evident in the rapid disintegration of Weimar’s constitutional democracy and the Nazis’ total seizure of state

The Rule of Law When the State Goes to War

95

power; (2) the attempts by the Nazis to retain some semblance of a legal system under totalitarian rule, raising the question of just what law and legality might mean; and (3) the obstacles Americans encountered as they attempted to impose democracy on an occupied Germany and to bring Nazi war criminals to justice. In many cases, the German legalists confronted one or all of these developments as lived experiences. These experiences taught them to be more skeptical of the ability of legalism and democracy to stand up to authoritarian threats; but they also made them more vigilant. Together these developments pointed to questions about the legitimacy of law and legality in the modern state that had to be thought through if the principles behind the law in any modern state were to be clarified and, in some cases, reconfigured. Such principles were easily obscured because of the growing obsession with technique and its application in administrative states of all kinds. ‘‘Justice is forgotten; the jurist of our day can master the technique of law without it. Human inertia may be one reason for that development; over-specialization is another.’’22 Law was not immune to the obsession with means and efficiency in the modern state; the recent history of Germany showed how dangerous it could be to ignore not only the importance of law itself but the purposes behind it.

The Rule of Law Ideal Comes to America The liberal legalist e´migre´s all fought against the antidemocratic forces in Weimar in various ways, and this fight shaped their beliefs. None was a wide-eyed utopian, with many involved in practical political reform in their native countries. They ranged in political orientation from socialism to social democracy to what I have been calling statist liberalism and in their intellectual influences from empirically oriented political science to critical theory. But they shared a rejection of the pure legal positivism that was popular in Weimar, even as they debated the degree to which it was responsible for undermining the Weimar Republic and sustaining the Nazi regime.23 Modern legal positivism in Germany arose in reaction to the natural law thinking that by the end of the nineteenth century had begun to lose credibility across much of the Continent. Legal positivism, notoriously difficult to define, may be understood here as the separation of law and morality, an attempt to render law as a specific form of rule whose purpose is purely instrumental and whose authority derives solely from the state. (In

96

Chapter 3

the German variant the state meant the legislature.) Law, according to the positivists, was the legitimate exercise of political power and those who are charged with enforcing it should do so with as little interpretation as possible.24 In rejecting a rigid legal positivism, the e´migre´s turned to traditionally liberal legal norms to constrain state power. Most blamed the collapse of Weimar on the weakening of liberal legalism as a bulwark against the opponents of democracy and economic equality. All had some training in law, either as a specialty or as part of their education in the social sciences, where law was deeply imbricated in the German tradition. Many of the Germans had been politically active, either in the Social Democratic Party (SPD), or in the case of a few, such as Arnold Brecht, in the pre-Hitler German government as high-level civil servants. Finally, virtually all rejected the German positivistic claim that law and politics inhabited separate spheres. As Alfons So¨llner has pointed out, during the Weimar Republic, ‘‘it was constitutional, or rather, public law (Staatsrecht), which marked out the terrain where the major, decisive political disputations were fought out.’’25 The German liberal legalists left behind a political culture in Weimar dominated by a form of legal thought—legal positivism—that could not be neatly positioned on the intellectual map of the United States.26 When they arrived, American jurisprudence was rent between legal realists and those adhering to some form of natural law. Natural law had awoken from its slumbers in response to the felt need for a substantive answer to totalitarianism, which its adherents believed the realist approach lacked.27 Most of the German legalists rejected natural law as a language that expressed not objective moral truth but ‘‘the subjective personal preferences of the judge.’’28 With this, the legal realists would agree. According to their amorphous concatenation of beliefs, law did not embody objective principles found by jurists; it was an expression of the personal preferences of judges, along with political and ethical beliefs prevalent in a given society. Hence the German legalists and the American realists agreed in their conception of judges as subjective and political. However they differed in their prescriptions for change. Although both were wary of judicial review, legal realism did not address the complexities of law’s connection to the state and the ways that law could effectively restrain arbitrary state power.29 For the most part, German e´migre´s and American legal academics spoke past one another. Outside of natural law theory, there was little in the way

The Rule of Law When the State Goes to War

97

of normative discussion of law in the United States, though that would begin to change after the war. Even those American lawyers and legal academics involved in the debates over reform of the administrative state and the restraint of executive power rarely addressed normative legal issues. Rather, much of the hand-wringing over Roosevelt’s gambit to subordinate the Court to his will through his scheme to ‘‘pack’’ the Court with additional justices and the initially abortive congressional proposals to reign in the administrative state with judicial oversight and procedural constraints was motivated by partisan and professional concerns. The revolt of the lawyers constituted a rearguard action by the American legal profession to protect its role as final arbiter of ‘‘legal’’ disputes and to justify the lack of attention to administrative law—public law—that law schools gave to this subject until well into the 1940s.30 Another difficulty in limning the parameters of the rule of law debate is that what I am calling ‘‘legalism’’ was not a proper school of thought. Rather, it is better understood as a set of concerns that rested upon a series of loose propositions about the importance and nature of law in a democracy. Although its definitions have always been various in the AngloAmerican and German contexts, one might divide the concept of the rule of law into a more formalist reading and a more substantive or normative iteration emphasized by the e´migre´s. The formalist version, originating with the great English legal theorist A. V. Dicey, stressed a government that is restrained by the law as opposed to one operating by absolute rule. In this view, the rule of law is simply ‘‘the law of rules.’’31 But this is not the conception of the rule of law at issue here. The rule of law concept of greatest moment in the World War II era added a subtle yet crucial ethical dimension to the traditional rule of law ideal. That ethical dimension centered on the generality, rationality, and fairness of formal law, which, in the view of most of the German legalists, guaranteed a measure of individual freedom—personal and political—and equality. Nominally, this equality was a formal equality—an equality before the law. It was predicated upon ‘‘the generality of the laws, the independence of judges and the doctrine of separation of powers,’’ and grew up alongside and in support of competitive capitalism, with its roots in social contract theory.32 Many of the legalists believed that the rule of law ideal could not be sustained under monopoly capitalism, which required a flexible, even arbitrary administrative state, not one guided by a predictable, nonretroactive (law could not be applied ex post facto), and impartial rule

98

Chapter 3

of law ideal. The generality of the law guarantees its rationality for generality implies calculability and predictability, which are types of formal rationality. Particularistic laws and administrative rules helped the monopoly capitalists; general laws that treated all parties equally had the potential to undermine their agenda of carving out exceptions for themselves. Franz Neumann spelled out this logic most clearly. With Marx, he agreed that legality masked the class agenda of the bourgeoisie, and with Weber (and Hayek) that the rule of law provided the predictability required of a market economy. What Neumann added, as Matthias Ruete has pointed out, was the notion of the ‘‘ethical function’’ of the rule of law ideal that stemmed from law’s formal qualities.33 As Neumann explained it, ‘‘Equality before the law is merely formal or negative, to be sure, but it does contain a minimum guarantee of freedom and must not be discarded. Both functions of the generality of law, calculability of the economic system and guarantee of a minimum of freedom and equality, are equally important; not the first alone, as the theories of the totalitarian state maintain.’’34 The ethical function of the law sat between the instrumentalism of Nazism— and to a lesser extent the administrative state—and the notion that law embodied a moral code, as natural law would have it. The German liberal legalists, and a handful of like-minded American intellectuals, recognized that, given the rise of totalitarian states, bureaucratic government, and emergency powers, the importance of legal rules and norms had at once become of greater moment and more difficult to assess. Such rules, whether embodied in a written constitution or in procedural norms, provided a way of knowing in advance the positive responsibilities of and the negative limitations on government. The rule of law, as a check on state power was, in that capacity, a vital tool for thwarting the rise of totalitarian regimes. ‘‘Constitutional rules [or legal guarantees] are meant to block the path to dictatorship,’’ as one e´migre´ witness to the Weimar collapse pointed out.35 However, the rule of law could undermine the functioning of democratic states in crisis situations. A strict adherence to legal rules circumscribed the sphere of government action, and efficacy became more important than fairness, transparency, and calculability. As a consequence, democratic government might deem it necessary to radically revise or even skirt the rule of law in the very defense of democracy against totalitarian threats. Adherents of the rule of law ideal tried to work out the balance between procedural guarantees, which helped democracy to function, and the need

The Rule of Law When the State Goes to War

99

for flexibility in the rule of law, which helped democracy to survive.36 To what extent can or should governing elites sacrifice liberal democratic norms, including the rule of law, in the short run to meet crisis conditions that could threaten democracy in the long run? Political and legal theorists readily admitted that neither legal practice nor legal theory was adequate to the task of determining what should be done when the rule of law undermined democracy or when democracy undermined the rule of law. The difficulty, they determined, is that in a constitutional democracy the state is self-limiting, not always in the first instance—people might vote to amend the constitution, for example—but always in the last. (That amendment could ultimately be made effective only by state actors.) World War II presented many opportunities to work through these problems in practice. It was up to scholars, however, to work them out in theory. A corollary of seeing law as a constraint on political power was to view the legal system as different from other political and social institutions by virtue of qualities intrinsic to law itself. Law had a distinct form with identifiable characteristics—generality, impartiality, non-retroactivity, for example. Whatever the disputes over the particulars, the notion in the 1940s that law had distinctive and separable properties was a near complete reversal from the position of the legal realists of the 1930s, who viewed law instrumentally: law was an instrument of policymaking, of social class, or judicial ideology.37 In the 1940s, with law freed from the grip of reductionist political analysis, questions about the purpose and legitimacy arose once again— normative questions that had been obscured by the realists’ focus on the social and economic contexts and power relations that shaped the law. Hence partisans of the rule of law neither fixated on formal procedures nor ignored substantive questions of justice. Moreover, they wrestled with the relationship between law and popular sovereignty in functioning democracies such as the United States. Faced with newly powerful administrative states in America and elsewhere, they tried to devise legal criteria for the rules of legitimate state action under the new terms of administrative dominance and emergency politics.38

The German Problem Direct and intimate American involvement with Germany meant that ideas and experiences about the rule of law traversed the Atlantic in both directions. On the one hand, American officials brought to Germany

100

Chapter 3

notions about how to refashion German society in the United States’ image; on the other, German-Jews and reformers, having escaped to the United States in the 1930s and 1940s, helped to reframe the ways that American intellectuals and policymakers thought not only about the country of Germany, but also about the rule of law and its complex relationship to democracy at home.39 A debate that had started in Germany among various legal and political intellectuals on the left, generally within the SPD, crossed the Atlantic just as surely as Hitler’s refugees. In the United States it continued, now invariably in English, in a much more wide-ranging and transparent form than could possibly have taken place in Germany during this time.40 At its most fundamental, the German problem challenged the very premise of democratic constitutionalism—that law and legal institutions would mediate between the poles of anarchy and dictatorship. Indications of the trouble that had befallen constitutional democracy were everywhere apparent: in the defeat of the Italian republicans, in the fall of the Weimar Republic in 1933, in Roosevelt’s frequent resort to emergency power, and in the growing power of the Soviet dictatorship under Stalin. While many American legal scholars fought throughout the 1930s and 1940s about which jurisprudential theory would best support democracy over totalitarianism, the e´migre´s invoked a rule of law discourse, a middle ground between positivism and natural law. They stressed not the opposing nature of democracy and totalitarianism but their potential similarities and the ability of the former to quickly transmogrify into the latter.41 Under Nazism, ‘‘democracy and democratic tolerance have been used for their own destruction. Under cover of fundamental rights and the rule of law, the anti-democratic machine could be built up and set in motion legally,’’ wrote Karl Loewenstein, a political scientist and legal scholar.42 The rise of Nazism and the fall of Weimar contained important object lessons for all modern democracies, including the United States.43 Nazi Germany furnished a frightening example of the failure of constitutional democracy to provide a sufficient bulwark against authoritarianism, while also pointing to the possibility that the rule of law and dictatorship might somehow be compatible. The latter, in turn, brought about new ways of thinking about the rule of law ideal. The most pressing issue was the relationship between German constitutional democracy and the Nazis’ rise to power. An understanding of this relationship would, ideally, illuminate how the rule of law ideal functioned under bureaucratic and emergency conditions. Had constitutional democracy committed a sin of omission or one of commission? Was it the peculiar

The Rule of Law When the State Goes to War

101

nature of German parliamentary democracy or a weakness in a constitutional democracy dominated by a too-powerful bureaucracy that accounted for the rapid rise and decisive victory of the German fascists, all under the aegis of democratic government, without violence and, technically, within the law?44 Legalists such as Loewenstein and Friedrich believed that the Weimar Constitution, principally because of its capacious emergency clause that allowed for parts of the constitution to be suspended under crisis conditions, had ‘‘facilitated’’ this antidemocratic counterrevolution.45 This is not to say that the institutional weaknesses of the Weimar Republic, legal, political, and social, were sufficient conditions for the triumph of Nazism, but they were necessary ones. ‘‘Germany democracy committed suicide and was murdered at one and the same time,’’ asserted Loewenstein’s compatriot, Franz Neumann.46 Suicide was the greater concern for the liberal legalists. Murder could be headed off by a vigilant citizenry ready to take the offending party to the gallows. Suicide suggested weaknesses internal to constitutional democracy that may or may not be readily visible. Pointing to Weimar’s inability to hold off the Nazi takeover of the republic, the jurist and political theorist Arnold Brecht lamented the ‘‘monstrous situation’’ of a democracy sowing the seeds of its own destruction.47 It could—and did—do so by means of a democratically elected legislature amending the constitution to give wideranging plenary powers to a single individual, including legislative and emergency powers that suspended parts of the constitution.48 Brecht, who in 1933 joined the Graduate Faculty of New York’s New School for Social Research, an asylum for refugee intellectuals also known as the ‘‘University in Exile,’’ blamed the inadequate powers conferred by the constitution on bureaucrats and judges to check the legislature and the executive for the self-destruction of Weimar democracy. Political theorists, he complained, ‘‘have not touched the core of the present problem: the fact that the typical wording of democratic constitutions, far from protecting the public against such barbaric abuses, makes it the sworn duty of judges and civil servants to carry them through.’’49 A former high-level Prussian civil servant who remained in his post until just after Hitler became chancellor in 1933, Brecht was primarily concerned with the fate of European countries, and was generally optimistic about the potential of American democracy. However, he admitted that even the United States, formally constrained by the Constitution, separation of powers, and federalism, was not fully democratic. According to Brecht, ‘‘white people in the U.S. may

102

Chapter 3

properly be said to live under a democratic government (however imperfect in its achievement), but it should be frankly admitted that Negroes do not, at least in the South.’’ While they did not live under a totalitarian regime, neither did they enjoy a government ‘‘of their own choosing.’’ At the same time, they benefited from the rule of law, from a government that was ‘‘ ‘constitutionally limited’ even with regard to him; it is controlled, not by him, but by the great masses of the people and by public opinion, and it is subject to very important constitutional limitations even in its actions against Negroes, and to judicial control. But it is, for the Negro, no democracy.’’50 This was an overly optimistic portrait of the constraints of constitutionalism in limiting the abuses of power against African Americans. Nevertheless, Brecht had identified the possibility that a constitutional conscience might one day help in the making of a democratic South. The structural requisites existed, even if the political will to override majoritarianism and judicial indifference did not. In addition to worries about the overall structural soundness of constitutional democracy, the rapid collapse of Weimar raised troubling questions about the role of judges and jurisprudence within a constitutional regime under threat. The judiciary’s near unalloyed compliance with Hitler’s rule from the outset highlighted the matter of judicial independence. Some legalists blamed the doctrine of legal positivism—which effectively dictated following the rules as given—for the lack of resistance by the judiciary to Hitler’s decrees. Judges were hamstrung by their belief in legal positivism, Brecht argued. ‘‘The prevailing legal opinion did not permit criticism by judges of laws the passing of which had been formally correct.’’51 Still, that did not leave the judges without any recourse against the Hitler regime. They could have resigned, as Brecht himself acknowledged. But Brecht believed that only after Hitler secured the passage of the Enabling Act of 1933 (a statute that effectively gave Hitler absolute power), did judges have before them a law ‘‘so flagrantly unethical’’ that mass resignation would have been seen as the only logical choice.52 Brecht’s position, although more forgiving of the Weimar justice system than those of most of his fellow liberal legalists, bespoke the e´migre´s’ general view of Weimar legal positivism: they did not like it, but they did not see it as primarily responsible for Weimar’s failures. Most believed that a strict adherence to legal positivism either was not characteristic of the German judiciary in the early 1930s or, if it had been, was not a plausible cause of the demise of the Weimar Republic. Positivism did not always threaten judicial autonomy.

The Rule of Law When the State Goes to War

103

Most German legalists also rejected the idea, which became fashionable in the postwar United States, that natural law was the reason for legal capitulation.53 Natural law, in which externally derived moral principles gave the law its meaning, would be just as if not more dangerous than an unyielding positivism. Natural law, in fact, bore all the marks of the very authoritarianism it was to be used against: its authority emanated from ‘‘outside’’ the democratic political system itself. ‘‘I hold that it is quite unnecessary to claim scientific validity for the thesis that certain moral maxims are absolutely valid, in order to deny the legal validity to atrocious government decrees. Which governments are considered legitimate, and which of their orders legally valid, legally binding, and which not, is in ultimate analysis a decision of human volition,’’ Brecht wrote toward the end of his life. ‘‘Nations are able to deny legal validity to certain types of government orders simply because they do not recognize the right of any government to give such orders. From this basis German judges and administrative officials might have refused recognition of flagrantly immoral decrees as legally binding.’’54 The fact that the Nazis maintained certain legal forms rendered problematic ideas about the very meaning and purposes of law, its ability to safeguard democracy, and the apparent ease with which it could coexist with totalitarianism. Analytically, the German Problem could be summed up as follows: How had Germany gone so rapidly from a new and promising constitutional democracy to arguably the most vicious tyranny the modern world had known? And how could the United States prevent another such tyranny from arising? During the war, academics and policymakers attempted to answer these questions in both normative and empirical terms. Research into both questions was conducted at the highest levels of the U.S. government. The Research and Analysis Branch of the Office of Strategic Services (OSS), the intelligence agency that was the forerunner of the CIA, recruited numerous German e´migre´s to provide reports on and analyses of present-day Germany and Nazism’s historical roots. Many of them were trained in law. Neumann, Friedrich, Loewenstein, and others formally consulted on the construction of American policies to rebuild Germany and prosecute war crimes. As we shall see, both of these events raised critical questions about the rule of law.55 Of course some of the wartime research was aimed at gaining strategic advantage over belligerents. In less instrumental terms, Germany also represented the greatest threat to the West precisely because it had been— and to some extent remained—of the West, in a way, it was argued, that

104

Chapter 3

the Soviet Union had not. As the soon-to-be Supreme Court Justice Felix Frankfurter put it pithily, ‘‘The replacement of Romanoffs by Bolsheviks was certainly not a democratic loss.’’56 The salient point, as Judith Shklar recognized, was that Nazi Germany exemplified the breakdown of a modern democratic state: ‘‘What made Nazism in one respect a far more serious event for Europe than the subsequent emergence of Soviet communism is that the former arose within the very heart of so-called Western civilization.’’57 The same held true for the United States, not least because so many victims of democratic failure ended up in this country. In addition, although critical liberals had more faith in American democracy than in its European counterpart, and none, unlike the conservative libertarian Friedrich von Hayek, thought fascism likely to arise here, if it did it would ‘‘come in the name of law and order and not in the name of rowdyism.’’58 This made it all the more important to discern what law meant and how it functioned in Weimar and Nazi Germany and what its meaning and function ought to be—and realistically could be—in a modern constitutional democracy.

The Road to Hitler The German e´migre´s were not alone in their concerns about the fate of the rule of law ideal under pressures of discretionary governance and crisis rule. The identities of their allies in this cause, who often had very different political values and intellectual influences than they did, helps to explain why this debate resonated beyond an insular group of like-minded academics. One can detect two sets of thinkers who joined in the discussion about the rule of law. The first was composed of a handful of frustrated former legal realists and sociological jurisprudes. The combined impact of the rise of totalitarianism, Roosevelt’s court-packing plan, and the growth of bureaucratic rule making turned them into hostile critics of the administrative state who wished for stronger legal mechanisms to rein in the growth of executive power in modern states of all persuasions. Emblematic of these critics was Roscoe Pound, the longtime dean of Harvard Law School who had for decades worried about the erosion of the Anglo-American legal precepts of equity, due process, and impartiality. By the mid-1930s, he came to oppose much of the New Deal agenda, in part because he believed that the New Dealers sought to erode the legal profession’s influence on

The Rule of Law When the State Goes to War

105

government. Pound also changed politically, and became a critic of the interventionist state.59 Other champions of the rule of law ideal also claimed a central European heritage but they arrived later than the German legalists and stood on entirely different ground in relation to the growing interventionist state. By far the most important figure in this group was the Austrian-born economist Friedrich von Hayek. Hayek shared important assumptions with the liberal legalists about the nature of legality and its relationship to the German Problem, despite their radically different political goals and intellectual influences. For both, the condition that linked totalitarian Germany and the democratic West was the rejection of the rule of law ideal and the emergence of arbitrary governance in its wake. Through his best-selling polemic against the interventionist state, The Road to Serfdom (1944),60 it was Hayek who more than any other thinker to date brought attention to the significance of the rule of law and its disintegration or abandonment in bureaucratized states of all kinds.61 In Serfdom, which elaborated on two essays he published in the late 1930s, Hayek argued that the tendencies toward planning and away from the rule of law would eventually lead to a full-blown totalitarian state, not simply the destruction of competitive capitalism.62 The German legalists’ interest was piqued by Hayek’s arguments about the need for law to constrain discretionary political power and executive authority and to thwart monopoly capitalism. They parted ways, however, with Hayek’s critique of all manner of alternatives to the competitive capitalism he so coveted—socialism, collectivism, and central planning—terms Hayek, rather confusingly, used interchangeably.63 Hayek’s twist to this reactionary assessment of state intervention was that Nazi Germany represented the apotheosis of a leftist agenda.64 This was the final stop on the road leading to and eventually beyond the interventionist state to the ultimate totalitarian nightmare; there was an all-but-inevitable relationship between a centralized economy and a fascist government.65 ‘‘It is Germany whose fate we are in some danger of repeating,’’ Hayek warned with England and the United States foremost on his mind.66 While it is often read as a Cold War text par excellence, Road to Serfdom should instead be seen as a warning about totalitarianism and the triumph in the West of leftwing and statist liberal values generally, not Soviet communism in particular. It was the road to serfdom, rather than ‘‘serfdom’’ itself, that most concerned Hayek. For Hayek rather romantically believed that paths

106

Chapter 3

remained open to the West—paths leading back to a less-regulated, competitive capitalism and a much more bureaucratic and activist state— paths other than those of socialism, nationalization, and liberal statism. Hayek had resided in London during the war and moved to the United States in 1949, though he had lived in the United States for more than a year some twenty-five years earlier.67 This experience in both continental Europe and the Anglo-American world meant that the parallels he drew were based on more than abstract homologies. Unlike other e´migre´s writing on the object lessons of Germany for the West, Hayek was a conservative in American terms, a classical liberal in the European lexicon. (He preferred the term ‘‘liberal,’’ although not without hesitation.)68 Most of his liberal legalist compatriots dismissed his argument for relying on an outmoded notion of liberalism as the guarantor of market capitalism. And they profoundly rejected the idea that Nazism was a species of leftist politics and ideology. At the same time, Hayek delineated all the major themes of the German problem that would continue to make their way into legal writing for the next two decades. By focusing on the Nazis, not the communists, as the major threat to the West, by emphasizing the perversion of the rule of law first under Weimar and then under the Third Reich, and by insisting upon the connection between the rule of law and individual freedom, Hayek’s book joined the center of the debate over the importance of the rule of law ideal in the executive-driven, bureaucratic, emergency-based governance that had come to fruition in the West.69 For Hayek, who studied law for a year and the history of law for a year and a half at the University of Vienna, Germany was of special importance because it had once been a constitutional democracy and had a strong legalist history, a position he shared with the German e´migre´s.70 With his concern for individual freedom, Hayek believed that what he called a ‘‘spontaneous order’’ or a competitive capitalist society required a degree of stability and even control if it were to function properly, and that came in the form of ‘‘the rule of law.’’ Therefore, the issue for Hayek was never how much law, or constraint, but, as he put it, ‘‘the kinds of law’’ involved.71 This emphasis on the nature of law itself—what Hayek called ‘‘the law of the Rule of Law’’— was characteristic of those who adopted some version of the rule of law ideal and is what gave that ideal its normative force. The rule of law, in Hayek’s view, guaranteed freedom of action, and even thought, by circumscribing the nature of the constraints that individuals would have to face and advertising in advance what those constraints

The Rule of Law When the State Goes to War

107

would be. Hence the rule of law was one of the ‘‘greatest achievements’’ of traditional liberalism as both a guarantor and ‘‘legal embodiment’’ of freedom and an impossibility in a planned society, which cannot tolerate the kind of restriction on state power that the rule of law ideal requires. Since it was a central concept in Hayek’s understanding of liberalism and its decline and of special interest to many of his American interlocutors, how Hayek conceived of the rule of law and its place in liberal society is worth quoting at length: Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. Though this ideal can never be perfectly achieved, since legislators as well as those to whom the administration of the law is intrusted [sic] are fallible men, the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough.72 The rule of law functioned in Hayek’s argument as the basis for a reversal: legal rules, though meted out by the state, actually take planning out of the hands of government and place it into the hands of the individual by creating a known and certain space within which individuals may act. ‘‘While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims,’’ Hayek pointed out, ‘‘under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action.’’73 These accepted, fixed, and general rules of the game by which everyone plays, rules that express the limited power that the state has or should have over individuals, constitute the rule of law. Hayek acknowledged that this was an ‘‘instrumental’’ view of the law in the sense that the generality of the law ensures that the law itself will be relatively free of content and that people will use the law in different ways at different times. However, it would be wrong to conclude that Hayek believed law to be solely an instrument of capitalism, or to

108

Chapter 3

confuse Hayek’s formalistic conception of law with legal positivism. Not only was Hayek critical of the latter, he also distinguished between types or ‘‘kinds’’ of law based on their purpose, a normative move a legal positivist would not and could not make, and one more akin to the notion of the rule of law ideal among the German e´migre´s. Hayek saw this normative view of law as central to the history of the liberal tradition as he knew it—he was, in the words of one critic, its ‘‘most persuasive and consistent advocate.’’74 Hayek, however, was no democrat, and saving democracy was not foremost on his agenda as it was for the German legalists. Much more than his German counterparts, Hayek insisted that the rule of law also helped to guarantee freedom by keeping democratic rule within limits. One should not make ‘‘a fetish of democracy,’’ he warned, proposing instead that it be viewed as ‘‘a utilitarian device for safeguarding internal peace and individual freedom.’’75 Indeed, arbitrary government, in Hayek’s mind, was not the opposite of democratic government: ‘‘it is not the source but the limitation of power which prevents it from being arbitrary.’’76 Any power that is exercised outside the bounds of fixed rules is arbitrary, including a majority that capriciously imposes its will.77 Hence Hayek was no instrumentalist in the context of the rule of law, but he certainly was when it came to democracy. His constitution is ‘‘unamendable,’’78 his rules ‘‘fixed and announced beforehand,’’ even to the point where the parliament itself is bound by these rules, and cannot enact just any statute it pleases. Echoing Franz Neumann, Hayek determined that the rule of law ideal prevented a legislature from enacting any laws directed at particular people, groups, or interests—laws, that is, that were not general in scope. The rule of law, in other words, limited the kinds of laws that could be adopted. It ‘‘means not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used.’’79 This definition illustrates Hayek’s normative vision of law and his identification with a liberal legal tradition that gave a ‘‘wider and older meaning’’ to the rule of law.80 As with e´migre´s such as Neumann and Kirchheimer, the object of Hayek’s legal theorizing in the 1930s and 1940s was in part to counter Schmitt’s alternative vision of law—law as the authorization of power.81 In Hayek’s view, the collapse of the rule of law as a buffer against arbitrary power contributed vitally to the victory of Nazism. Yet Hayek wrote

The Rule of Law When the State Goes to War

109

almost nothing about the German totalitarian state. In fact, it seems a fair assessment, and one that Hayek himself would render in his writings thirty years later, that he was as much or more concerned about those countries that were not yet full-blown totalitarian menaces as he was with the phenomenon of the totalitarian state itself. The Third Reich was merely the telos of the welfare statist tendencies of Weimar: ‘‘It is not to the Germany of Hitler, the Germany of the present war, that England and the United States bear yet any resemblance. But students of the currents of ideas can hardly fail to see that there is more than a superficial similarity between the trend of thought in Germany during and after the last war and the present current of ideas in the democracies.’’82 World War I produced statist Weimar, Hayek argued, and now World War II threatened to yield welfare state ‘‘socialism.’’ ‘‘The lessons which the Germans [learned] from the last war [World War I] have done much to produce the Nazi system.’’ These lessons—that market-based liberalism is undesirable and fated to become obsolete; that the newly expanded state constructed for the purpose of war should remain for the purposes of peace; and that ‘‘realism,’’ the privileging of a power-based over a norm-based politics, is the best frame for understanding and conducting politics—are the same lessons that England’s and the United States’ ‘‘most vociferous reformers are so anxious we should learn from this war.’’83 The notion that the Weimar Republic served as a negative example for those interested in preserving the rule of law ideal and individual autonomy was one with which the German legalists could readily identify. However, unlike Hayek, who faulted the entire Weimar project, the liberal legalists focused on the failings of specific political institutions or on their abandonment altogether. In the first case, excessive emergency powers granted to the Reich president under arcane election rules that left too much room for manipulation and confusion were at the root of Weimar’s dissolution by suicide. In the second case, they argued that, emergency powers aside, the Social Democrats had effectively abandoned the Weimar Constitution and allowed rule by decree well before the Nazis consolidated their power. On numerous occasions Hayek drew attention to what he believed were logical and historical parallels between Germany’s recent past and England and America’s present, thus keeping Germany at the center of the rule of law discourse. Nazi Germany and the democratic United States were on the same ‘‘road’’ to totalitarian collectivism, only Germany was further along. ‘‘Is it not possible,’’ Hayek asked rhetorically, ‘‘that all planning and

110

Chapter 3

direction, which in Germany longer than elsewhere has been universally demanded, necessarily require a ‘totalitarian’ regime, arbitrary preferences, the use of force, and the institution of a new hierarchical order of society?’’84 With the economy already well socialized, the Nazis had ‘‘taken over the fundamental ideas and methods [of Weimar] and simply turned them to their own ends.’’85 Hayek saw socialism, collectivism, and ultimately totalitarianism as the culprits in bringing down nineteenth-century liberalism. Germany, having nearly perfected the totalitarian ideal, served as the protagonist in his account of the ‘‘abandoned road’’ of liberalism: ‘‘That there [in Germany] the suppression of competition was a matter of deliberate policy, that it was undertaken in the service of the ideal which we now call planning, there can be no doubt.’’86 Hayek posited the chain of causation this way: fascism in general and Nazism in particular were a ‘‘necessary outcome’’ of the socialist tendencies of the early twentieth century. Hayek stuck resolutely to a German-centric narrative, even when there were better examples at hand. The most obvious reason was strategic: that Hayek, residing in an Allied country and writing for an English-speaking audience, was hardly in the position in the early 1940s to demean one of the principal countries fighting against Germany, the Soviet Union. At the very least, it would not, as the political scientist Carl Friedrich had written, be ‘‘diplomatic’’ to do so. Conversely, as Hayek himself said, it was important to understand one’s enemy and not to attribute the rise of Nazism to the peculiarities of Germanness.87 Three objections may be raised against this interpretation as the principal explanation for Hayek’s disproportionate attention to Germany: First, there were places where Hayek did criticize the Soviet Union. He noted, for example, the negative ‘‘similarities’’ between the ‘‘regimes in Communist Russia and National Socialist Germany.’’88 Second, the main outlines of his argument were already apparent in the late 1930s. Finally, Hayek continued to name Nazi Germany as the greater intellectual and historical problem for freedom lovers in the West well after the end of World War II and well into the Cold War. In The Constitution of Liberty (1960), a stately work in which he discussed his libertarian ‘‘ideal’’ in a more scholarly fashion, Hayek repeated and elaborated upon his earlier assertion that much of socialist theory as well as the legal theory that ‘‘undermined the rule of law’’ first took root in Germany.89 Echoing most of the German legalists, Hayek attributed this misfortune to the disease of ‘‘legal positivism’’ that infected early twentieth-century Wilhelminian Germany. By the time of the Weimar Republic, the infection

The Rule of Law When the State Goes to War

111

had become an epidemic. The German legal positivists replaced the ‘‘substantive’’ rule of law ideal, in which ‘‘the rules of law possess definite properties,’’ with a nominalist conception of law that ‘‘required merely that all action of the state be authorized by the legislature.’’ For Hayek, purely formal law, or ‘‘mere legality,’’ empowered rather than constrained the state, emancipated the majority to run roughshod over individual liberties, and ultimately collapsed the state and the law into a single institution. Since the definition of a ‘‘law’’ was that which a proper authority, in this case the legislature, promulgated, mere legality meant, perversely, that the state would no longer be bound by law in Hayek’s sense of general rules, and that the door would be open for the state to ‘‘treat its subjects as it pleased.’’ Through that door walked Hitler, who completed in radical fashion the positivist revolution in law.90 In Hayek’s view, some blame for this erosion of the rule of law ideal could be attributed to judges and bureaucrats, who had broad discretion in Germany’s legal system. They authorized, indeed promoted, this turn to legislation by other means.91 The crux of the problem, however, lay in the laws that allowed for such discretion in the first place, laws that plainly violated the key tenets of Hayekian legality. Hayek contrasted the rule of law ideal, characterized by general rules known in advance that limited the scope of government, with substantive law, characterized by ad hoc decision making often aimed at a substantive or material outcome. The latter was the law that characterized the administrative state. Hayek noted that this ‘‘other kind of law gives in effect the authority power to do what it thinks fit to do.’’92 Without the rule of law ideal, under a regime of planning, legality and law become effectively separated. For the law now authorized what Hayek deemed to be ‘‘arbitrary’’ power—the power to draw up laws ‘‘either directly aimed at particular people or at enabling anybody to use the coercive power of the state for the purpose of such discrimination.’’ Law becomes unlimited and unpredictable; the actions of government may be legal but not lawful. Although for Hayek such a situation could prevail in a democracy, if, for example, that democracy took the form of a welfare state, he also believed that ‘‘the law of an authoritarian state has no legal character.’’ Yet those were the words of Franz Neumann from an essay first published in German in 1937.93 As Hayek would recognize only later, he shared with Neumann and other liberal legalists numerous ideas, both historical and normative, about the waning of the rule of law ideal in Germany and the

112

Chapter 3

reasons for its importance.94 Conversely, Neumann agreed with Hayek that ‘‘law as a phenomenon distinct from the political command of the sovereign is possible only if it manifests itself as general law’’ and that general law was desirable in part because it ‘‘guarantees a minimum of liberty’’ to all, through procedural equality.95 A key difference, however, could be found in the reasons they gave for the destruction of the rule of law ideal. For Hayek, socialistic planning undermined the generality of the law; for Neumann, monopoly capitalism was the culprit. Organized capitalism required special treatment, in the form of regulations and exemptions from the law, and this drove the state to abandon general and fixed rules in favor of discretionary, flexible law directed at particular entities, such as corporations, or other powerful groups. What Neumann found so disturbing about these ‘‘individual measures’’ was that they amounted to legal privileges granted to the powerful at the expense of ‘‘the weak,’’ who lost access to the ‘‘legal chances’’ afforded by the rule of law ideal. This focus on monopoly capitalism was no accident: Neumann, and many of his e´migre´ compatriots, believed monopoly capitalism, not socialism, brought the Nazis to power, created intolerable inequalities, and distorted democracy through corporations’ disproportionate access to political power. The binary logic that led Hayek to counterpoise planning and freedom ensured that his causal explanation for the arrival of the totalitarian state would not receive a sympathetic audience from the liberal legalists.96 Moreover, the apocalyptic rhetoric of Road to Serfdom spurred a flurry of criticism among Hayek’s statist interlocutors. Liberals called Hayek’s argument ‘‘close to pure nonsense,’’ ‘‘false and misleading,’’ and ‘‘reactionary,’’ among other derogatory terms. Hayek described the totality of the American reaction as one of ‘‘incredible abuse.’’ By contrast, England, against which he had actually aimed his critique of socialism, had political and economic conditions that much more aptly fit his description of ‘‘creeping socialism’’ than those of the United States.97 Yet others who disagreed with virtually everything in the book nevertheless deemed it ‘‘eloquent,’’ ‘‘honest and . . . sincere,’’ ‘‘a masterpiece.’’98 These included both German and American legalists sympathetic to statist projects.99 More important were the substantive concessions. Even if they rejected the belief that the United States ‘‘intend[ed] Berlin,’’ the liberal legalists accepted the notion that the unintended consequences of Weimar might be applicable to democracies such as the United States. Among the

The Rule of Law When the State Goes to War

113

most important unintended consequences was the disintegration of the rule of law ideal, which, the liberal legalists agreed, was crucial to maintaining individual freedom and democracy. This explains how, for example, the University of Chicago philosopher T. J. Smith, in a review of Hayek’s work, could at once call Hayek’s tract ‘‘hysterical’’ while also acknowledging the validity of his ‘‘excellent’’ interpretation of Nazism.100 Smith’s issue, as with most American critics, was with Hayek’s diagnosis of the distended American state and the solutions he offered. Unlike many of the German legalists, Smith argued that Germany and the United States were fundamentally different. The United States’ ‘‘presuppositions are democratic’’ whereas in Germany they were not. Even the historian Clinton Rossiter, a conservative of a different stripe, agreed that the comparison was inapposite: ‘‘In all their dismal jeremiads about America’s passage down the descensus Averno of Germany and Russia, the followers of Professor Hayek seem to forget this one decisive fact: we are Americans, not Germans or Russians, and democracy is our most basic political and social tradition.’’101 Leaving aside the health of American democracy, it was the connection between law and freedom in a democracy that scholars from very different persuasions built upon long after Hayek introduced it. Along with some of Hayek’s later works focused on law, Road to Serfdom would help to establish the importance of the rule of law as a buttress against the effects of arbitrary government.102 While the war thundered away, this European-inspired discourse on the rule of law and constitutionalism began to make inroads into American intellectual and political thought, and occasionally even policymaking. After several decades of liberal attacks on or distrust of the Constitution came a renewed appreciation of its importance in preserving individual rights and democratic institutions more generally.103 Although Hayek may not have been much concerned with or interested in the relationship of the rule of law ideal to democracy, the liberal legalists clearly were. And in the interstices of his work they found insights that resonated with their own. Indeed, the New School’s Arnold Brecht warned the readers of the graduate faculty’s journal Social Research that they ought not dismiss Hayek’s argument so readily.104 Brecht acknowledged that what he dubbed the ‘‘Lenin-Hayek thesis’’—the assertion of the incompatibility of socialism, on the one hand, and democracy and the rule of law, on the other—may not be correct; but that did not excuse liberal political theory from failing to offer a rejoinder. Nor could political theorists avoid the problem by rejecting socialism. In the Europe of 1946, Brecht saw a ‘‘real

114

Chapter 3

danger that in a critical situation the masses will abandon democracy in favor of a socialist dictatorship, unless they are confident that it is possible to establish socialism through democratic means.’’105 Concerned more with the weaknesses of majoritarian democracy and democratic institutions than central planning as the gateway to a discretionary emergency state, Brecht determined that liberal theorists had to confront the ways in which democratic majorities could adopt undemocratic policies and transform constitutions from protectors of democracies against authoritarian excesses into permission slips for ‘‘barbaric’’ acts. In both instances, Brecht had the recent history of Germany foremost in mind. Yet his focus on the multiple methods by which democracy could be threatened from within distinguished his critique from Hayek’s. The latter focused exclusively on the necessary usurpation of the majority by a minority under a regime of planning. Necessary, according to Hayek, because majorities would rarely be able to agree on a policy as specific as an economic plan.106 Instead of accepting the stark choice that Hayek laid before them, market capitalism and the rule of law or economic intervention and arbitrary power, liberal legalists resolved to more fully theorize a third way, in which the power necessary to an interventionist welfare state could be properly constrained by law. They sought to rethink the problem of arbitrary authority in the welfare state rather than to reject it: ‘‘To assume that our constitutional polity will prove unworkable in the type of State toward which we are moving . . . is impliedly to assert that only an all-powerful executive is competent to perform the tasks of government in that type of State. Such an assumption is unwarranted.’’107 Law itself could help to constrain the ad hoc and fenced-off decision making characteristic of the bureaucratic state. Hayek left other yawning gaps for the liberal legalists to fill as well. For all his concern about the status of the rule of law ideal in the welfare state and in the Weimar Republic, Hayek had little to say about it or about the actual functioning of law under a totalitarian regime. In Serfdom he said only this: ‘‘It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?’’108 This passage does not take a position as to the status of the Hayekian rule of law under Hitler, though it seems to suggest that there was anything but. Several decades later, he would confirm just such a meaning.109 He also acknowledged then that both

The Rule of Law When the State Goes to War

115

German and Anglo-American scholars had studied the matter and had come up with varying answers to this question. This later ‘‘discovery’’ suggests that the status of the rule of law in Nazi Germany is not something that Hayek carefully investigated in the 1930s and 1940s. Perhaps this was because of his belief, which he later clarified, that in any collectivist system the very purpose of law is to coerce individuals into doing the bidding of the state. It is the will of the state that prevails: hence collectivism and the rule of law cannot coexist.110 The key to understanding Hayek’s reasoning about law, and, for that matter, that of John Rawls, lies in his concept of coercion.111 Law is undeniably a coercive institution; but, Hayek argued, the tenets of the rule of law ideal reduce its coercive force to a minimum. It is rendered ‘‘innocuous’’ by protecting the freedom of individuals and constraining the state. Hence there is little to investigate as to the status of law under a totalitarian regime. Not surprisingly, Hayek’s book had little effect on writings about the state of the rule of law in Germany, or under the strain of emergency conditions.

‘‘Everything Adolf Hitler Did . . . Was ‘Legal’ ’’: The Rule of Law and National Socialism By contrast, for liberal legalists the persistence of legal forms and legalistic thinking in Nazi Germany—the quintessential regime of arbitrary power— presented a quandary.112 The perseverance of an element of legality was, in the political philosopher Hannah Arendt’s words, ‘‘something inexplicable even by reference to the worst periods of history.’’113 What was this ‘‘law’’ that characterized the Nazi regime, and if it were indeed a form of law, what did that mean for the concept of the rule of law ideal, which insisted that law consisted of certain characteristics that simply could not coexist with totalitarian rule? For Hayek the answer was simple: Nazi ‘‘law’’ had nothing to do with any recognizable conception of law, which required ‘‘meta-legal principles’’ that constrained lawmaking itself not ‘‘mere legality,’’ which was nothing other than the command of the state.114 Most German legalists, shunning strict legal positivism along with Hayek, agreed that the rule of law did not exist under the Nazis.115 At the same time, it was hard to deny that there existed what looked like a partially functioning legal system under Nazism—a system that underlay basic contractual relations and quotidian legal codes. Perhaps the most apt description by a German legalist was this: the Nazi regime contained ‘‘an odd mixture of survival of

116

Chapter 3

legal forms coupled with the destruction of the substance of legal impartiality.’’116 The idea that Nazism had managed to embody simultaneously a lawless regime as well as a legal order unsettled e´migre´s. They detected a more tepid version of the same phenomenon in Weimar and connected it to the growing importance of the bureaucracy and the assimilation of the legal system to the administrative system. But in Weimar it was still possible to see the distortion of the rule of law. Totalitarianism, by contrast, entailed the obliteration of all recognizably ‘‘liberal’’ law as part of a larger process of destroying boundaries of virtually every sort—between state and society, between party and state, among governmental institutions. Hence figuring out the role of law in the Nazi order was crucial to fully conceptualizing totalitarianism. How, then, ought law to be characterized under Nazism? Unless one employed a strict positivist view that any command of the state was law, the answer was not at all obvious. An overriding concern of the German e´migre´s was the Nazis’ apparent success in using law to gain a measure of legitimacy for their state. This brought them right back to the German Problem and the relationship between law and the legitimacy of any modern or bureaucratic state. After all, they viewed the rule of law ideal as vital to the successful maintenance of a constitutional democracy and to the preservation of a measure of individual equality and freedom. It accomplished these things through its formal properties of generality, rationality, and non-retroactivity, among others. This view of the rule of law made it difficult to perceive in a totalitarian context. Hannah Arendt went even further in connecting the rule of law to democracy, contending that legality required popular consent or at least agreement. Otherwise, it was indistinguishable from the raw exercise of power. These qualities that made law different from other types of authority were what gave law its legitimating force.117 To work through these issues a group of German e´migre´s, joined by a small number of American scholars, published in the 1940s a series of empirical and normative studies on the nature of law and legality in the Third Reich. Some were part of larger studies that theorized the concept of totalitarianism more generally, whereas others focused exclusively on the issue of law under the Nazi dictatorship. Along with Arendt, Ernst Fraenkel and Franz Neumann, active Social Democrats who had practiced labor law together in Berlin during the Weimar Republic, produced the most detailed and widely read works to explore the role of law under Nazism. These

The Rule of Law When the State Goes to War

117

books were read not only by legal scholars but also, given the wide-ranging nature of their themes and the urgency of the war and its aftermath, by sociologists, political scientists, historians, and even policymakers.118 Before the war Fraenkel and Neumann had joined other social democratic and liberal German e´migre´s in marrying a liberal notion of the rule of law, in which the generality and impartiality of the law and the certainty of its execution were preeminent values, with a critique of capitalism. In so doing, they helped to revive a normative conception of the rule of law and undo the common perception on the left that law was but an instrument of the bourgeois state that served only the interests of capitalist elites.119 Fraenkel and Neumann’s group argued just the opposite: formal law’s mandate to treat people ‘‘the same,’’ that is, equally, is in fact to treat them differently, given the inequalities inherent in capitalist society and bureaucratic rule. Put another way, if the law, designed as universal in its mandate and uniform in its application, favored no one group or individual, then it would de facto favor the less powerful. This was so because dominant interests, such as the monopoly capitalists, were sustained through discretionary administrative decision making that traded on the close relationship between industrial elites and the bureaucracy. The administrative state routinely extended exceptional treatment to corporations, which benefited from the flexibility of rule making and administrative discretion, not the more egalitarian and predictable dictates imposed by the rule of law. A reassertion of the rule of law, according to its liberal and leftist defenders, promised to achieve a fairer allocation of resources in an inegalitarian system. This reasoning conflicted with Hayek’s idea that substantive equality and the rule of law were in direct contradiction to one another.120 But the goal was the same: the restoration of legal regularity and formal impartiality. Fraenkel and Neumann took up these themes in their studies of Nazi Germany. Frankel’s The Dual State and Neumann’s Behemoth were published in English almost simultaneously—in 1941 and 1942, respectively.121 While each book received significant attention among academics and intellectuals, it was Neumann’s more sweeping work—the second edition swelled to almost 650 pages—that catalyzed his career in the United States as an academic and as an adviser to the U.S. intelligence services.122 Before the publication of Behemoth, Neumann was conducting research for the Frankfurt School’s Institute for Social Research at its temporary home in New York.123 Behemoth, however, earned him a temporary teaching post at

118

Chapter 3

Columbia University, much to the envy of his colleagues at the Institute for Social Research, and in 1942 a role in helping to coordinate research on Germany at the OSS’s Bureau of Research and Analysis. There he was ‘‘among the first of the e´migre´s to be called to Washington.’’124 Behemoth, which was revised in 1944 to account for the rapidly changing dynamics of Nazism during wartime, analyzed the economic, social, cultural, and legal facets of Nazi totalitarianism. Fraenkel, meanwhile, worked more quietly— both in Germany and the United States. While in Germany, Fraenkel researched his book clandestinely until he fled the country in 1938.125 Fraenkel arrived in the United States in 1939, where he quickly took a second law degree at the University of Chicago. By the early 1940s his book had been translated into English and he became a practicing lawyer in Washington, D.C. Losing his job in 1942 to the war effort, Fraenkel sought but did not find a permanent academic position. In 1944, having become a U.S. citizen, Fraenkel took a post with the Foreign Economic Administration (FEA), where he joined his fellow e´migre´ Hans Kelsen. The FEA was charged with the wartime planning of Germany’s postwar reconstruction, but the agency was dismantled in 1945. Unusually for those in his circle, Fraenkel moved back to Germany permanently in 1951, perhaps dismayed with his inability to stay in academia or to find steady work of any sort. Both men agreed that the rule of law had been tragically decimated by the Nazis and that the conditions for its breakdown had begun to emerge prior to the Nazis’ seizure of power. But they disagreed as to whether vestiges of the rule of law remained in the Nazi regime (Fraenkel) or whether it had been eliminated (Neumann). Accounting for this difference were the thinkers’ assumptions about what law consisted of, subtle distinctions in their definitions of the rule of law, and the different periods of Nazi rule that Fraenkel and Neumann examined. Fraenkel concentrated his research for The Dual State in the early years of Nazi rule while he was a practicing lawyer in Berlin from 1933 to 1938.126 In 1938, he and his wife emigrated to the United States, precluding any opportunity for hands-on research during the war years, when Nazism was at its most menacing and the legal system at its most dysfunctional. The truncated time frame covered in Fraenkel’s book is one reason scholars have given for the most unorthodox aspects of Fraenkel’s analysis concerning the persistence of rational legal norms and institutions and most importantly his denial that the term ‘‘totalitarian’’ could be used to describe the Nazi state. Fraenkel acknowledged that ‘‘by the beginning of 1936 the resistance of traditional

The Rule of Law When the State Goes to War

119

law-enforcing bodies was weakened,’’ and legal institutions began to succumb to ‘‘politicization.’’127 Despite these empirical limitations, his insight into the workings of Nazi law and the acuity of his theoretical assumptions meant that Fraenkel’s work continued to be referenced in the literature on Nazism long after its publication. In fact, although it did not have the influence of the much more wide-ranging Behemoth, Fraenkel’s study received greater attention among legal scholars because it carefully analyzed Nazi legal institutions and proposed a new model for understanding the rule of law in Germany, whereas Neumann essentially dismissed law as unimportant to the German state.128 While acknowledging the Nazis’ ‘‘absolute dictatorship,’’ Fraenkel described two aspects of a ‘‘legal system’’ that coexisted uneasily and in competition with one another. One was a dominant ‘‘prerogative state’’ that operated arbitrarily, violently, and ‘‘unchecked by any legal guarantees’’ to ensure that the ‘‘law’’ would conform to the will of the Nazi leadership. The other was a subordinate ‘‘normative state’’ where formal legal institutions and norms still operated, where judges applied preexisting statutory law, and where administrative agencies functioned in a reasonably predictable and efficient fashion.129 The normative state, Fraenkel explained, did not conform to the rule of law ideal but exercised the bare minimum of legal guarantees necessary for a functioning economic system. When efficiency and justice clashed, however, efficiency always prevailed. Any legal matter of political importance was exempt from legal strictures. The formal legal system was, in the last instance, a creature of a politicized national bureaucracy.130 This left open the question of whether the normative state possessed any recognizable elements of the rule of law. Fraenkel, and certain other German e´migre´s, seemed to think that it did. Loewenstein, for example, noted that the Nazis had made ‘‘many reasonable and progressive’’ changes to the code of criminal procedure that, when it came time to reconstruct Germany, should be retained.131 Whatever was the case with individual laws, Fraenkel acknowledged that the Nazis managed their ‘‘dual state’’ with so little consistency or coherence and without the abstract postulates of justice that natural law normally commands that one could only brand their jurisprudence ‘‘irrational natural law thinking.’’132 By irrational natural law Fraenkel meant that Nazi jurisprudence had imbued law with moral content that emanated from the state itself rather than abstract principles of traditional natural law. Under Nazi jurisprudence, the aim of the law

120

Chapter 3

was to preserve the racially based biological community. Fraenkel did not go into detail about this primary dimension of Nazi ideology except to demonstrate that law did not constrain the state; the will of the state defined institutional mandates. This was a significant and often overlooked weakness in his argument, for, as one critic pointed out, if the prerogative state ruled then the normative state lacked autonomy and hence legality in any meaningful sense. The existence of a workaday rule, when part of a larger totalitarian political project, made for a dubious assertion of the presence of the rule of law.133 A ‘‘dual state’’ was consistent with a dictatorship, Fraenkel maintained, because it functioned at the pleasure of Nazi leaders, not because law had any autonomous power or inherent worth. In fact, the Nazis despised formal law for its constraining influence over the state: ‘‘National-Socialism makes no attempt to hide its contempt for the legal regulation of the administration and for the strict control over all activities of public officials.’’134 The Nazis allowed a minimal degree of formal rational law because the ‘‘capitalist order’’ required it. To support this view, Fraenkel analyzed a variety of judicial decisions regarding contracts, monopolistic practices, private property, patents and trademarks, and labor law.135 ‘‘The decisions show,’’ Fraenkel concluded, ‘‘that the courts have successfully maintained the legal system necessary for the functioning of private capitalism. . . . To this extent the courts have striven to maintain the supremacy of the law.’’136 To be sure, Fraenkel acknowledged that over time political objectives overwhelmed the German state and society, including the ‘‘normative state,’’ but he did not allow this dynamism to undermine his basic model of a dual state. Fraenkel also omitted ‘‘cases touching on the Jewish problem’’ so as not to ‘‘complicate our analysis.’’137 In doing so, he elided the issue of whether such a profoundly distorted legal system, which made race a criterion of one’s legal status and treatment before the law, could still claim to bear any relationship to legality and hence to any comprehensible definition of law.138 The crux of Fraenkel’s argument about the German legal apparatus was his insistence that although the institutional and ideological manifestations of the rule of law in Germany had been largely dismantled by the Nazis, they had not been destroyed altogether. The persistence of capitalism under Nazism explained any legal continuity, or residual constitutionalism, that did exist.139 Fraenkel was struck by the fact that commercial transactions carried on much as they had prior to the Nazi regime, but this situation

The Rule of Law When the State Goes to War

121

could not last. Following Max Weber, Fraenkel argued that capitalism required conditions of ‘‘rational calculation’’ and that such ‘‘calculation is not consistent with the rule of arbitrary police power which is characteristic of the Third Reich.’’140 The notion of a ‘‘dual state’’ was the basis for a significant disagreement between Neumann and Fraenkel about the relationship of the law to the state in Nazi Germany and beyond. Employing a more normative and welldeveloped concept of the rule of law, Neumann contended that law no longer existed under the Nazis. The National Socialist regime was almost pure chaos in legal terms, the ‘‘rule of lawlessness and anarchy.’’141 Nazi legal thought and practice had rejected the idea that law represented an internally coherent system of thinking and organization such that ‘‘we can no longer speak of a specific character of law’’; had given judges and other interpreters of the law broad, even arbitrary discretion; and, perhaps most important, had abandoned any notion that the law should be general in nature, universal in its application—two of the core elements of the rule of law in the normative sense.142 Fraenkel, of course, did find some residual legality in the regime. This may have been in part because he was examining an earlier period of Nazi rule (the mid-1930s) and in part because, unlike Neumann, he believed that not only competitive capitalism but also monopoly capitalism necessitated some degree of legal predictability in order to function.143 In Behemoth, Neumann responded directly to Fraenkel’s thesis about the rule of law. Neumann contended that the mere existence of ‘‘technical rules’’ did not a legal system make. The issue was how those rules functioned and to what end. If either the means or the end was irrational, then the rules were not legal in character. Referring to Fraenkel’s book, Neumann argued, ‘‘We do not share this view [of a dual state] because we believe that there is no realm of law in Germany, although there are thousands of technical rules that are calculable.’’144 Neumann’s view of law was much more exacting than that of Fraenkel. For Neumann, law consisted of ‘‘reason [ratio] and will [voluntas],’’ by which he meant the will of the state, or state sovereignty. The rational properties of law could be either formal or material. In Neumann’s understanding, material law was a form of natural law, requiring that law be in the service of ‘‘certain material demands: freedom, equality, security.’’ Formal law, meanwhile, ‘‘maintains that law can be expressed only in general, universal terms.’’145 Therefore, Neumann concluded, ‘‘we must deny the existence of law in the fascist

122

Chapter 3

state.’’146 In other words, fascism—a fundamentally irrational system— could permit only a relatively meaningless instrumental rationality, which consisted in finding the appropriate means for a given end without assessing the rationality of the end itself. This was the case because every action of the fascist state is shot through with power and privilege. As such, there is no possibility of an independent judiciary or legal autonomy, both of which are necessary for the rule of law to exist. ‘‘Law, as distinct from the political command of the sovereign, is conceivable only if it is manifest in general law, but true generality is not possible in a society that cannot dispense with power.’’147 The Nazi regime ruled through discretion and command, not law. Neumann was not alone in his interpretation of Fraenkel’s argument. Otto Kirchheimer, a scholar of public law and political science and a fellow Frankfurt school and SPD exile, held a similar view, claiming that Fraenkel had confused instrumental rationality with legal rationality, as the rule-oflaw tradition defined it. Rationality for the Nazis ‘‘means only that the whole apparatus of law and law-enforcing is made exclusively serviceable to those who rule. Since no general notions prevail which could be referred to by the ruling and the rule alike and which thus might restrict the arbitrariness of the administrative practice, the rules are being used to serve the specific purposes of those ruling.’’148 Although they practiced labor law together in Berlin, Neumann was more influenced than his partner by a long history of political activism and by ideological battles over Marxism. Born in 1900, he had briefly served in World War I before joining forces with the radical workers’ and soldiers’ rebellions in central Europe in 1918 and 1919.149 Neumann joined the SPD in Germany and became a labor lawyer, in part because, since he was Jewish, academic opportunities were largely foreclosed to him. Yet Neumann was still able to express his views in a variety of legal and political journals when he was not busy representing workers or drafting laws for the SPDdominated state of Prussia. In the complex spectrum of German politics, Neumann occupied what might be called a center-left position, in the middle of the SPD as opposed to its left flank where his friend Otto Kirchheimer made his home.150 Before his exile from Germany, Neumann joined the Institute for Social Research, with which he maintained a connection first in London and then in the United States, where he helped to found its American outpost in New York City under the sponsorship of Columbia University.

The Rule of Law When the State Goes to War

123

Neumann also had a long-standing scholarly interest in the rule of law. Neumann’s more radical argument about the ‘‘lawlessness’’ of Nazism was grounded in an understanding of law and its relationship to socioeconomic imperatives that he had developed years earlier. After fleeing Germany and before coming to the United States, Neumann wrote a doctoral thesis on the subject at the London School of Economics under the direction of Harold Laski. Its title was rendered in English as ‘‘The Governance of the Rule of Law: An Investigation into the Relationship between Political Theories, the Legal System and the Social Background.’’ Neumann completed the dissertation in 1936, but it was not translated from the German until 1980.151 In that work, and in a 1937 essay ‘‘The Change in the Function of Law in Modern Society,’’ Neumann foreshadowed many of the themes in Behemoth. He argued that the breakdown of the rule of law began in the late nineteenth century with the imperative of nurturing monopoly capitalism. Yet he saw in ‘‘bourgeois’’ law properties that went beyond the mere protection of the capitalist system. This ethical dimension of the rule of law is what he hoped could play a role in socialist or welfare statist society, but it was anathema to any form of monopoly capitalism and authoritarian rule. Hence it is not surprising that Neumann would find the roots of Nazi ‘‘lawlessness’’ in an earlier period when the state under Weimar adjusted to support the forces of monopoly capitalism. An ‘‘unexpressed natural law’’ promoted increased judicial and administrative discretion, the substitution of vague standards for rational rules, and the erosion of law’s rationality and predictability. This laid the groundwork for the ‘‘lawlessness’’ of the Nazis.152 By the time of the Third Reich, the Nazis had made a such a mockery of the rule of law that anything that could rightfully be called law had vanished.153 Neumann never considered Nazi jurisprudence to be a form of natural law thinking, irrational or otherwise. Rather it combined decisionism, or ‘‘law’’ by fiat, and what he called institutionalism.154 That latter rested on the assumption (and to the extent possible the practice) of the erasure of any distinction between state and society and, by extension, of any concept of state sovereignty. It substituted a form of organicism in which the state was an expression of a holistic national community. ‘‘The power this state exercises is no external power but the power of the organized community itself, so that sovereignty disappears, as does any separation between public and private law.’’155 Despite Fraenkel’s invocation of ‘‘irrational natural law,’’ Neumann and Fraenkel were not far apart in their

124

Chapter 3

understanding of the theoretical underpinnings of ‘‘law’’ in the Nazi regime. Neumann’s idea of institutionalism shared many elements with Fraenkel’s ‘‘irrational natural law’’ in its emphasis on organicism and irrationality and its rejection of general rules. Hence one can safely say that neither Fraenkel nor Neumann blamed legal positivism for the distortions of Nazi law, as other analysts would increasingly do. The outstanding particularity of Nazism was race. The supranorm guiding all that the state did, and which Fraenkel had dismissed all too quickly in his discussion of the ‘‘normative state,’’ was, in Neumann’s words, ‘‘to preserve racial existence.’’156 To prove that Nazi racism distorted the law beyond all recognition, Neumann turned to the statute most often quoted by those trying to make the case that the Nazis had repudiated legality altogether: ‘‘One who performs an act the statute declares to be punishable or which is deserving of punishment according to the healthy racial feeling shall be punished.’’157 Obviously morally repugnant, from a legal point of view, this ‘‘statute’’ was also not a general rule but, according to Neumann, a ‘‘standard of conduct’’ whose interpretation lay with the final arbiter of political authority, rather than with an independent judge. Under the Nazi dictatorship, law became nothing more than an instrument ‘‘for the achievement of specific political aims’’—an extreme version of tendencies already present in the liberal bureaucratic state toward policymaking by the executive branch and away from lawmaking by the legislature.158 Finally, Neumann pointed out that even if there were some judges during the early years of the Nazi regime who were willing and able to direct the law toward the liberal ends of protecting rights and liberties, by the time of the war, when ‘‘racial imperialism’’ had superseded a more rudimentary totalitarianism as the Nazis’ organizing principle, any such independence had disappeared: ‘‘The law is still in a state of flux,’’ Neumann wrote in 1942. ‘‘The trends are unmistakable, however, and during the war the law reached its full development as an instrument of violence.’’159 In structural terms, the Nazis subordinated the judicial system under the state/party dictatorship. Neumann cited the waning influence by the late 1930s of the federal supreme court, which had ‘‘tried to prevent the complete annihilation of rationality’’; the centralization by decree of the power to appoint the judiciary in the 1937; and the host of courts and tribunals that had been established for different groups and special cases that the government wished to target.160 Concluded Neumann, ‘‘The National Socialist legal system is nothing but a technique of mass manipulation by terror. Criminal

The Rule of Law When the State Goes to War

125

courts, together with the Gestapo, the public prosecutor, and the executioners, are now primarily practitioners of violence. Civil courts are primarily agents for the execution of the commands of monopolistic business organizations.’’161 Although he agreed that German courts acted as the handmaidens of large corporations, Neumann rejected Fraenkel’s ‘‘normative state,’’ where the rule of law operated in the interstices of dictatorship. He saw no meaningful evidence of rationality in the law beyond a mere technical competence. Moreover, the ideology of race always already undermined a first principle of the rule of law: equal standing before the law. ‘‘Rights and duties are no longer bound to the will of legally equal persons but to objective facts. The status of man in society becomes decisive.’’162 The implication of Behemoth was that what looked like law under Nazism was law in name only. Fascist dictatorship and legality could not coexist. ‘‘Does such a system deserve the name of law? Yes, if law is merely the will of the sovereign; definitely not, if law, unlike the sovereign’s command, must be rational either in form or in content.’’163 Nevertheless, Neumann acknowledged that there were, at least nominally, laws and judges and trials and statutes. And occasionally, they even functioned in a relatively conventional manner. Neumann had a hard time accounting for this reality. To do so, Nazi legal institutions and practices were measured against a traditional liberal standard of rationality and found wanting. In his flat-out rejection of the persistence of any degree of legality under the Nazis, Neumann was in the majority among his German confreres, though not among American legal thinkers. One difficulty was that Neumann did little to define the ‘‘rationality’’ that was absent in the Third Reich. It was left to the American legal thinker Lon Fuller to develop a theoretical framework that could explain the apparent existence and nonexistence of Nazi law.164 Neumann contrasted rationality with power and violence, which were products of the will, but this was a negative comparison. What was the test of reason? It lay in the characteristics of formal law that have already been discussed. However, Neumann did not elaborate why these properties of law were rational in nature. Just as significantly, Neumann, while recognizing the steadily more violent, terrorizing, and genocidal characteristics of the Nazi machine, failed to take into account the war itself. While Nazism blurred the lines between war and peace, military and civilian, in its very existence it, like all political systems, was forced to make adjustments, concentrating

126

Chapter 3

its power even more, to fight an all-out war. Nazism, though arguably in ‘‘a permanent state of emergency,’’ was not in a permanent state of war. And a true picture of Nazi law and politics could be obtained only during peacetime. Although Fraenkel and Neumann drew different conclusions about the function of the rule of law under Nazism, in their contrasting positions, they helped to establish the terms of a debate that would continue for the next two decades among legal thinkers in the United States. That debate was largely about the nature of law and its relationship to dictatorship and to discretionary rule of all kinds. Most legal scholars sided with Fraenkel in recognizing the existence of some sort of legality under Nazi rule. This included the liberal legalists even if their logic was rather tortured. While proclaiming the existence of legality, they readily admitted that even conventional laws were so distorted by irrational procedures that they could not reasonably be placed under any recognizable conception of legality. In the case of other legal scholars, one might imagine that the decisive factor was that they were positivists, for whom any command given by a lawmaking authority was law. Yet this was not necessarily the case. While many contemporary positivists did assert that there was a working legal system under Nazism, just as many, and perhaps more, did not. Hannah Arendt may be the most telling example of the latter. In The Origins of Totalitarianism, Arendt included a short but significant discussion of the law in the Nazi and Soviet regimes that mediated between Neumann’s and Fraenkel’s arguments.165 Focusing more on her native Germany, Arendt made explicit what had been lurking in the background of discussions about the status of Nazi law: that totalitarian regimes confounded conventional ideas about the relationship of authoritarianism to the rule of law. Arendt insisted, ‘‘totalitarian government . . . has exploded the very alternative between lawful and lawless government, between arbitrary and legitimate power.’’166 Political theorists tended to think that lawfulness and legitimacy, on the one hand, and lawless and arbitrariness, on the other, were necessarily conjoined. Totalitarianism, in this aspect as in virtually all others, was different. While ‘‘defying’’ conventional or positive laws, totalitarianism, according to Arendt, conformed to a different kind of law, rather than being just another form of arbitrary power or personal rule. Arendt agreed with Neumann that there were no meaningful positive laws in Germany, but with Fraenkel that there was a Nazi legal structure

The Rule of Law When the State Goes to War

127

nonetheless. This legal structure, however, was based on a transcendent natural law, which had a law-like structure insofar as it served as an organizing principle for a society constantly in motion (as it tried to fulfill the law’s promise) and constrained people from acting. It accomplished these things not directly, but indirectly by means of terror, which was nothing more than ‘‘the realization of the law of movement.’’167 Under Nazism, terror’s purpose was to force people to conform to the racial order prescribed by the law of Nature. (Under Soviet communism it was prescribed by the law of History.) These suprahuman laws pushed society artificially forward through time and outward through space. Terror was a form of illegality, running roughshod over all positive law, but it was not antilegal, exhibiting no disdain for law as such. Totalitarianism substituted for the norms of legality a different set of law-like norms: totalitarian ‘‘law’’ is metaphysical law materialized. Arendt’s diagnosis of a law-infused yet legally defiant Nazi regime stemmed from her iconoclastic understanding of law and legality. Arendt tilted toward positivism, yet she rejected the key positivist assumption that law was nothing more than the command of the sovereign. Law, at least in its most fundamental, constitutional form, was, rather, the product of human agreement and drew its legitimacy from this consensual origin. The function of law was to ‘‘erect boundaries’’ so as to constitute a political community and to create the conditions for political stability. It did so by framing the space of political action and setting forth the rules of the political game. These rules would not be legitimate if they did not flow from human agreement. Law, properly formulated, should militate against the boundless power and endless movement that characterized totalitarian regimes. Therefore, conventional, positive law did not exist under the Nazis for whom law transcended politics itself. The problem for Arendt was not that totalitarian regimes elevated a norm-free illegality to new and treacherous heights; the problem was precisely with the normative content of totalitarian natural law. Substantively, the hallmark of ‘‘totalitarian lawfulness’’ was the ‘‘discrepancy between legality and justice.’’168 The ‘‘lawfulness’’ that totalitarian states promoted was morally repugnant, suggesting that laws, to be laws, did not have to be inherently good or fair.169 Again, like Neumann, Arendt argued that totalitarian law could never devise positive laws to correct for the deficit of justice because it could not commit to the quality of generality necessary to ‘‘bridge the gap’’ between law and justice. Terror itself obeyed, or was bound to, law; but by virtue of

128

Chapter 3

being an instrument of a higher law and by the methodical way that terror was employed in the service of this higher law. Hence Arendt emphasized that totalitarianism was not an instance of arbitrary power unleashed by a refusal to adhere to the rule of law, as Hayek and others believed. Power was exercised methodically and toward a definite end: ‘‘Total terror,’’ rather than ethical standards or legal rules, guides people’s behavior under totalitarian regimes. The task of terror was to make unpredictability the only predictable characteristic of politics. And while there was no functioning system or ideology of the rule of law, rudiments of such a system, especially in form, occasionally in substance, remained. While provocative in theoretical terms, Arendt’s argument lacked a convincing empirical foundation. She offered only vague and implausible generalities, such as the statement that totalitarianism ‘‘destroyed all social, legal, and political traditions of the country.’’170 Her near obsessive need to show the totalism of totalitarianism pushed her in this direction. Without subscribing to the dualism of Fraenkel, Arendt agreed that the seeming paradox of a Nazi legal system could be explained by the existence of an extreme version of natural law. Yet Arendt, no friend of natural law, condemned the Nazi version as yet another instance of mass manipulation, the hallmark of this uniquely modern type of authoritarian rule. She thought dangerous the totalitarian appeal to a transcendent, ‘‘superhuman’’ authority outside the political community, such as race in the case of the Nazis or History in the case of the Soviets. Totalitarianism ‘‘operates neither without guidance of law nor is it arbitrary, for it claims to obey strictly and unequivocally those laws of Nature or of History from which all positive laws always have been supposed to spring.’’171 The norms of Nazi law had nothing to do with conventional law, however. Nazi law was nothing more than the (racialized) will to power, and this controverted the very basis of law, which was constituted by agreed-upon rules, not unilateral power. Behind Fraenkel’s, Neumann’s, and Arendt’s arguments about Nazism was an appreciation for a distinct understanding of law, one that entailed general, predictable legal rules interpreted and enforced by independent arbiters, and one with an internal ethical warrant. At the same time, the German case suggested that the rule of law by itself might be insufficient as a basis for a functional democracy. These legalist e´migre´s, among others, determined that law did not necessarily set fundamental limits on political power; yet it was the only mechanism that could set such limits. How to get it to do so became a crucial political project for positivists, natural

The Rule of Law When the State Goes to War

129

lawyers, and legalists alike during the years immediately following the war. The most rigorous legal thinkers—including Hayek, the British theorist H. L. A. Hart, and the Americans Lon Fuller and John Rawls—all had to grapple with the Nazi experience in seeking to understand law’s legitimating function in a democracy.172 For most of the German legalists, Nazi law showed that, whatever its susceptibility to totalitarianism, the rule of law, when properly conceived and practiced, constituted a normative and practical restraint on the exercise of political power. Therefore, it could not be compatible with modern dictatorships even if legal forms persisted. But this insight could be and was extended to any state driven by informal dictates and uncontrolled administration. With no general rules to guide and constrain the behavior of either the ruled or the rulers, efficiency and discretion prevail. Formal legal rules ‘‘might restrict the arbitrariness of the administrative practice,’’ Kirchheimer wrote of the Nazi state. Instead, ‘‘rules are being used to serve the specific purposes of those ruling’’ and by any means necessary. And no matter the type of political regime, ‘‘the rules of evidence are of no avail against those who are sure enough of their power to dispense with formalities of written instruments’’—a phenomenon he detected not only in Nazi Germany but in the United States, though not in any comparable fashion.173 Perhaps the biggest lesson legalists drew from the Nazi experience concerned the danger inherent in borrowing certain aspects of a legalist system without committing to the whole. This ersatz legality could help to disguise non- or antidemocratic forms of power. Of utmost importance in this context was that the law must entail some sort of ethical precept. The second lesson was that courts, having twice capitulated to illegal regimes, could not be the sole arbiters of the law. Citizens shared this responsibility in a democracy. A third lesson was that the claim of emergency ought not to be allowed to override certain formal legal constraints that had to be protected from all exceptional rule. When the war ended, German legalists, joined by a handful of like-minded Americans, had the opportunity to elaborate upon and apply these lessons in concrete situations as they sought to make good on the promise that this time the war would in fact yield democracy and the rule of law.

Chapter 4

Liberal Democracy Conducts an Occupation and a War Crimes Tribunal

For most Americans, the threat posed by Nazism to the integrity of the rule of law and democracy seemed remote. But as the war wound down, the United States became involved in geopolitical projects that ensured the reexamination of legality and its role in a modern administrative democracy would continue apace. Among the most significant of these projects were the military occupations of and war crimes trials in Germany and Japan, which seemed to sit uneasily between the unalloyed emergency of war and the ‘‘normal’’ state of affairs of everyday politics. In truth, they were much closer to the former: in both cases, foreign military and political officials—guided by a bevy of civilian experts—dictated the political, economic, and legal courses of action, the institutional arrangements, and the punishment that would be imposed on formerly sovereign nations. The Americans alone ruled over 150 million people.1 On the institutional level, trials had to be concocted, constitutions written, and entire legal, political, and economic systems reconstructed, in ways sensitive both to the threat of resurgent dictatorship and to the Allies’ stated aims of establishing democracy, protecting individual rights, and restoring legality. In particular, both military government and war crimes trials presented scholars and policymakers with unprecedented examples of the rule of law having to function under extraordinary conditions—precisely what it was designed not to do. The remnants of legality under Nazism hinted that law might at some level be compatible with dictatorship, but the Allied

An Occupation and a War Crimes Tribunal

131

occupations evoked the apparent paradox more directly.2 Only now the ‘‘dictatorship’’ with which the Allies were dealing was of a very different nature; it was their own.3 Reconstruction and war crimes trials became another proving ground for the legitimacy of the growing administrative state.4 The postwar exercise in nation-building in Germany, a former constitutional democracy, entailed not only ‘‘emergency government’’—a temporary transferring of sovereignty— but also a complex bureaucracy, and not just of the military kind. By the middle of 1946, two-thirds of the military government personnel in Germany were civilians, and much of the leadership had served in or for the executive branch.5 Although the military government, by definition, was headed by military officers, the decision making, especially in complex technical matters such as those having to do with law, occurred at the civilian level with approval by the military men all but guaranteed. ‘‘In the U.S. zone if a law was desired, all that was necessary was to prepare a draft of it and have the commanding general of the American zone afix [sic] his signature and it was published as a law,’’ one member of the U.S. legal staff recalled.6 Hence these extraordinary undertakings provided an opportunity to test the lessons of how a liberal democratic administrative state could so quickly turn authoritarian and how it might be prevented from doing so again. As with the war, these tensions were especially heightened in the German case, the most complex and significant instance of reconstruction with which the United States was engaged. Moreover, the United States’ decision to maintain a state of ‘‘hostilities’’ with Germany until the end of 1946 and a state of war until 1951 ensured an ongoing state of emergency at odds with the normal functioning of the rule of law and democracy. At the same time, many legalists thought, the Rechtsstaat tradition in Germany hastened the need to reestablish legal norms and institutions.7 If the institutions of the administrative state were to be trusted— whether at home or in Germany—reconstruction would have to be accomplished with as little coercion as possible. In the event, the German occupation and the Nuremberg trials enriched and complicated the defense of the rule of law ideal, which had been of little concern to most New Deal liberals before the war. Despite a postwar debate over making the administrative process more responsive to law and legal institutions and the growing attacks against legal realism for dismissing the intrinsic significance of legal norms, the most profound rethinking of the role of law in the modern liberal state came in the context of developments abroad.

132

Chapter 4

But this was no necessary outcome. Again, the German liberal legalists— concerned to balance the rule of law with democracy, to employ the brute power of the American state to seal the war’s victory, and to instill in the Germans a respect for democracy and legality—brought the rule of law ideal to the center of the discussions over the occupation and the war crimes trials. With a newfound appreciation for these issues gleaned from their work advising government officials on the occupation and the Nuremberg trials, the e´migre´ intellectuals offered an understanding of democracy that was forged in the experience of totalitarianism, and an understanding of law that was informed by Weimar jurisprudence and its transmogrification by the Nazis. The German legalists acknowledged what many American officials could not or would not: that, given the extraordinary challenges involved in uprooting the vestiges of totalitarianism and replacing them with legally constrained democratic institutions, the coercive means that would have to be employed to achieve democratic ends could undermine the goals the Allies were pursuing and would be difficult to justify. They agreed with the statist liberals who ran the occupation that a strong dose of rule by dictate was necessary. But they wondered according to which principles these emergency measures could be taken and how they might be limited to crisis conditions, how ‘‘the core element of the principle of legality [which is] the scrutiny of the administration against the yardstick of the law’’ might be preserved, if not in every action by occupation officials than certainly in the long run.8 Both the occupation and the war crimes trials were political projects that ‘‘necessitate[d] the substitution of political considerations for legal arguments.’’9 Yet for the sake of democracy and legitimacy, the rule of law ideal would somehow have to be upheld, though not at the expense of eradicating radical antidemocratic forces. A purely coercive approach—rule by command—was not a realistic option for achieving democracy and legality, even under a military government. Many difficult questions— whose answers, at times, would have practical effects on the policies the Americans pursued—followed from these contradictory goals. On what basis could political decisions constitute projects that were supposed to be constrained by legal norms and institutions? How could the American state derive democratic and just results from antidemocratic and unjust means? With their continental background, the German legalists did not pretend that law and politics occupied distinct domains. However, legal norms and

An Occupation and a War Crimes Tribunal

133

political norms were of a different order, and perhaps more important, legal and political approaches to solving problems would necessarily take different forms—the first entailing a constrained form of power, the second, unconstrained. Hence when it came to an occupation that was said to be sanctioned by international law, and a trial that was said to be governed by legal norms, not victor’s justice, sorting out how a constitutional democracy might eliminate ‘‘the enemies of constitutionalism,’’ while not becoming the enemy itself, was a tremendous challenge to be met. Those attempting to do so stood on terra nova.10 The invocation of an emergency, the German legalists had learned from their experiences in and study of Germany, was all too often a cover for the destruction of the rule of law and democratic institutions.11 But if this were true, what made the emergency conditions presided over by the Allied democracies any different than those summoned by totalitarian regimes to eviscerate the rule of law, democracy, and individual autonomy? How could the American state justify its actions of dictating political, economic, and legal outcomes in Germany? The answers resided in the preservation of democracy. According to the liberal legalists, the rules should be different when establishing and maintaining democracy was the end. Although the German legalists did not develop systematic theoretical solutions, they did provide intellectual justifications for the practical suggestions they offered. In addition, they carefully attended to ethical considerations rather in marked contrast to the efficiency-driven officials of the military government. For the refugees of totalitarianism, law ought never be reduced to a mere means. Arnold Brecht, the German e´migre´ New School professor who served in 1948 as a consultant to the secretary of the army and to U.S. military government, argued that judges and bureaucrats had to be subjected to ‘‘the right sort of law’’ to ensure that a constitutional democracy would not turn to ‘‘barbarism.’’ Some law—that protecting fundamental rights—ought to be unchangeable by the legislature or by constitutional amendment, ‘‘even in emergencies.’’12 This would ensure that an antidemocratic majority, with the help of a willing bureaucracy, could not usurp the political process, as they had managed to do in Weimar. That the modern bureaucratic state, now in its military guise, sought to solidify hegemony in the postwar world while at the same time promoting democracy and the rule of law ensured that the state’s legitimacy issues would be both novel and profound, if only because of the amount of power

134

Chapter 4

that the Americans planned to exercise.13 The military occupation and the effort to exact justice from the Nazis pointed simultaneously to the importance and to the insufficiency of the rule of law for establishing and maintaining democracy and constraining arbitrary power under emergency conditions that were in some ways even more challenging than those of the New Deal. ‘‘That postwar democracy constitutes a challenge to political practice no one would deny,’’ Brecht asserted.14 But for Brecht, postwar democracy presented a challenge to political thought as well. As with the concerns over reconciling democracy and bureaucracy under the New Deal, Brecht found that over the course of the past century, little theoretical work had been done on the problem of democracy under pressure. Yet ‘‘something resembling revolution’’ occurred in the military occupations of Germany and Japan, insisted another scholar, an ‘‘artificial revolution’’ whose aim was to create constitutional democracy. What made the situation ‘‘revolutionary’’ was not simply the imposition of democratic ideals and institutions on the defeated nations, but the ‘‘systematic efforts to create support for them and to weaken existing forces of reaction.’’15 Democracy initially came to Germany through force—but it was the force less of direct military rule than of the compulsion of new laws, the disenfranchisement of the population through a denazification program, and the redrawing of territorial boundaries. Finding the right balance among the rule of law, democracy, and substantive justice would become part of the statist liberal project for the next several decades under wars hot and cold and in the face of significant social disruptions at home. Legalists offered different answers in each of these situations, often disagreeing among themselves. Nevertheless, most liberal legalists, sometimes hesitatingly, justified huge grants of political and military power to the American state, blurring the lines between legality and arbitrary authority, in order to prevent even greater excesses of political and military power or the possibility of losing control of democracy altogether. They anxiously reminded government officials that democratic and legal legitimacy required consent from the governed, but in this case not from all the governed. Some Germans, those with Nazi affiliations of any kind—a stronger test than the U.S. military government was willing to pursue—would have to be ‘‘purged.’’ This was how ‘‘militant democracy,’’ as many of the German e´migre´s called it, liberal and social democratic alike, would have to operate if the modern democratic state were to survive and prosper.16

An Occupation and a War Crimes Tribunal

135

Establishing legitimacy for the occupation government would be much more difficult if the American occupying forces and prosecutors did not live by the same rules they sought to impose on others. Yet the structural situation was such that those rules would not, and probably could not, apply equally to victor and vanquished. Most German legalists believed that democracy first had to be safeguarded from its enemies. Then the rule of law could prescribe a more permanent solution, whether through an unamendable constitutional clause that protected certain fundamental rights or some other mechanism to prevent antidemocratic forces from taking control.17 ‘‘The hard fact is that nations cannot be allowed to choose whatever political regime they please,’’ wrote the Italian refugee Max Ascoli long before the war was over. ‘‘For we have learned that there are certain types of internal order that develop into a menace to all men.’’18 The German legalists realized that the coercive actions of bureaucratic military governance had to be rationalized—and, ideally, practiced—so as to clearly distinguish them from those of the Nazis. This often meant downplaying the force involved or transforming acts of power into instances of moral or legal principle. In both cases, the e´migre´s pointed the way to new forms of justification for the exercise of state power in light of extraordinary conditions. In doing so, they provided a vocabulary that could be utilized for a very different end: the vindication of a repressive national security state. But the debate over the rule of law ideal, catalyzed by these unusual events, pointed in other directions as well—away from greater concentrations of power and unconstrained, politicized bureaucracies and toward the need for institutional safeguards and foundational principles for protecting constitutional democracies from antidemocratic forces of all kinds— bureaucratic, legislative, executive, or popular.

A ‘‘Democratic Occupation’’? Although the military occupation by the United States of another country was not new, the sheer scale and the challenges involved in the takeover and governing of Germany were unprecedented.19 The United States had never attempted a wholesale reconstruction of any country or faced the task of rooting out an enemy population and ‘‘reeducating’’ the rest. The fear in the initial years of the occupation, which began before the Germans surrendered, was not a war between the United States and the Soviet Union, but the reemergence of a fascistic and predatory Germany. Until 1947,

136

Chapter 4

when policymakers turned their attention to Soviet communism, Nazism was deemed a more virulent and frankly more powerful form of totalitarianism. The first year of the occupation did nothing to change that. The Soviet Union seemed more significant as an antifascist counterweight than as a totalitarian menace. For its part, a restored Germany was viewed as nothing less than the ‘‘anchor’’ of the postwar capitalist economy in Europe.20 For a brief but intense moment—from 1944 to 1947—the country turned its attention to the reconstruction of Germany, in accord with the Allies’ formally enunciated goals of democratization, denazification, decentralization, and demilitarization.21 The Americans had their own agenda as well, which involved nothing less than the ‘‘reeducation’’ of the Germans away from a totalitarian mindset and toward a greater appreciation and practice of democracy.22 As one Department of State memorandum put it in 1944, the United States, along with its allies, had to determine ‘‘what kind of a Germany we want.’’23 While Americans soon became uninterested in their country’s travails an ocean away, scholars’ concern about the reconstruction of Germany continued into the early 1950s and helped to shape the ensuing legal and political discourse about the function of the rule of law ideal in the new world of bureaucratic states, totalitarian dictators, and supranational institutions.24 With the war still raging, scholars lost little time preparing the ground for a new kind of policymaking under a novel set of crisis conditions. Studies of military occupations past and present poured out of the academy. Foundations such as the Carnegie Endowment for International Peace and Freedom and the Social Science Research Council funded them handsomely. They saw this research as a way to influence U.S. policymakers and were cognizant of the unusual situation in which the United States found itself as a ‘‘democratic occupier.’’ The popular press too carried a steady stream of discussion and debate about how and to what degree the United States should be involved in governing and rebuilding Germany.25 This reconstructive task was, to be sure, a coalition effort, but among the occupying powers the Americans, signaling their role in the postwar world generally, expended the preponderance of resources and exerted the greatest influence over the future course of Germany. The debates over the legal limits to military occupation were not purely academic; they also occurred among occupation personnel in Germany. Among scholars and public intellectuals, German e´migre´s played a disproportionate role in this debate and in the U.S. government, which depended

An Occupation and a War Crimes Tribunal

137

heavily on the e´migre´s’ linguistic skills and cultural and political knowledge of their former homeland. The government also utilized their talents to think through the policies of the occupation and their legal grounds.26 The German legalists argued for an aggressive role in remaking Germany, but one that was partially hemmed in by both institutional and cultural constraints. Carl Friedrich and Karl Loewenstein, both political scientists with specialties in constitutional law and jurisprudence, were among the most active participants in this debate in their dual role as scholars and as advisers to the U.S. government in the United States and in Germany.27 Most often working behind the scenes, Franz Neumann, Otto Kirchheimer, and John H. Herz, among others, prepared reports and memoranda under the aegis of the Office of Strategic Services’ Research and Analysis Branch, Central European Division. Wolfgang Friedmann, Ernst Fraenkel, Arnold Brecht, and Hans Kelsen also served in various advisory capacities for the U.S. military government, for the Nuremberg tribunal, or for both. There were other German e´migre´ legal specialists involved in these postwar efforts, but these men were among the most prolific and held high-level, if not always influential, positions. Among the most notable of the German legalists’ contributions was their disproportionate representation in the Berlin-based Legal Division of the Occupation Military Government—U.S. (OMGUS), which began work in 1944. The division had responsibilities not only within the American zone of occupation but, along with its counterparts from the other occupying countries, for the German nation as a whole.28 Because the occupation was operating under the pretense of international law, in one sense the entire occupation effort constituted a legal operation. But this proved to be the case more in theory than in practice. As Loewenstein characterized the problem, expressing exasperation with the fact that German courts were not allowed to interpret or even to question any provisions of occupation law: ‘‘Military government is still envisaged under the terms of the Hague convention instead of as the successor of a German Reich government.’’29 The United States acting as a successor regime certainly represented the truth of the matter. Yet that same regime was committed to operating under some sort of rule of law ideal and perhaps more important to ensuring that the new German government shared that commitment as well. To give a brief sketch of the occupation infrastructure, at the apex of the arrangement sat the Allied Control Council (ACC), which was composed of members from each of the four governments that bore a responsibility,

138

Chapter 4

under the Berlin Declaration, for the occupation and reconstruction of Germany. Germany was divided into four zones, with each Allied country assigned its own geographical area. Within this structure, OMGUS coordinated the field operations. OMGUS was headed by a succession of military governors and contained myriad field offices and divisions located throughout the zone of occupation and in Berlin, where the four powers had their headquarters and which was itself divided into four zones.30 As a principal component of OMGUS, the Legal Division—Berlin served as the American representative to the Legal Directorate of the ACC under whose aegis it determined laws and debated legal issues that were national in scope. Although planning for the occupation began as early as 1942 in the War Department, the catalysts for the mobilization of occupation forces were two quadripartite agreements signed in 1945. In the first, the Berlin Declaration of June 5, the four Allied powers (the United States, Great Britain, the Soviet Union, and the provisional government of France) arrogated to themselves ‘‘supreme authority’’ over Germany on the premise of its unconditional surrender and because there was ‘‘no central Government or authority in Germany capable of accepting responsibility for the maintenance of order.’’31 The declaration was short on administrative specifics, but it made clear that the four powers would run the country and determine its boundaries. The Potsdam Protocol turned the Berlin agreement’s abstract declaration of authority into a detailed social and political vision, affirming that a four-power administrative mechanism—the ‘‘Control Council,’’ later called the ACC—would reconstruct Germany as a democratic antifascist bulwark with a viable capitalist economy. In addition, the protocol aimed to make Germany militarily impotent and to eradicate as much as practicable the vestiges of Nazism through processes of denazification and the punishment of the Nazi leadership.32 The Allied plans for Germany were stunningly aggressive. The Potsdam Agreement reaffirmed that ‘‘for the time being’’ Germany would not be allowed a central government of its own.33 In theory, this meant that, with the help of local German officials, the entire Germany polity and society would have to be remade by its occupiers. In practice, the United States found itself forced to work with many local personnel and was the quickest of the four powers to devolve power to the Germans with U.S. military leaders disdainful of their nation-building charge. In the absence of any central government, the Allied Control Council authorized the four powers to engage in ‘‘outright repeal of an individual . . . enactment . . . abolition

An Occupation and a War Crimes Tribunal

139

of an institution by repealing the legislation on which it is based . . . amendment of legislation otherwise remaining in force,’’ the substitution of one law for another, and the promulgation of new legislation. This ‘‘legislation’’ might take the form of a proclamation, a law, an order, a directive, or a set of instructions.34 In the U.S. zone, military rulers also took their direction from the more specific edicts of the American occupation directive JCS 1067 of April 1945 and, on matters legal, from the Plan for the Administration of Justice U.S. Zone. These dictates, which informed the language of Potsdam, included orders that all Nazi-authored statutes be liquidated; that all courts be shut down immediately; that, per Potsdam, all discriminatory laws be ‘‘abolished’’; and that the judicial system be ‘‘reorganized.’’35 In addition, the military government approved all legislation passed by the hastily erected state-level assemblies.36 Reflecting this ‘‘world-historical experiment in directed legal change,’’ the Legal Division numbered about forty lawyers.37 While this was not a great number, considering they had national as well as zonal responsibilities, it was substantial given the haste with which this administrative operation had been assembled. Initially, many were military officers but the agency underwent a so-called civilianization process, along with American military government more generally, that culminated in 1946. Operationally the occupation remained a military action. This arrangement caused all manner of difficulties in balancing the goals of the civilian ‘‘experts’’ with the more hurried approach of the military, who were, from the outset of the occupation, anxious to return power to the Germans as quickly as possible. The very objective that required a bureaucratic occupation—nationbuilding—made military officials uncomfortable and unsuited for a task that the military had not historically viewed as part of its mission.38 However, as neither annexation nor colonization was in the offing, the military had to remain nominally if not effectively in charge.39 The very existence of a Legal Division within the Office of Military Government constituted something of a paradox and was indicative of the bureaucratic nature of the occupation. Historically, the rule of law had been conceived as the antithesis of military rule. While there had long been a law of war, it was always subordinate to the overriding task of defeating the enemy and the hierarchical, command-driven structure this objective necessitated. Here was an entity, with a military officer at its helm, charged with eradicating old laws and writing new ones, purging the legal system of Nazi party members through a process of ‘‘denazification,’’ and temporarily

140

Chapter 4

shutting down the judicial system and overseeing it when the military government decided which courts could be reopened and when. At the outset, however, and despite the strictures against judicial interpretation, these coercive efforts did not yield an antitotalitarian bench. Loewenstein insisted that ‘‘supervision’’ of the bench was needed because even if anti-Nazi in their outlook the new German judges were ‘‘positivists and will apply the law even if it is bad law. . . . Without such supervision sooner or later the courts will become the instruments of reaction and sabotage unwittingly or wittingly the democratization [effort] whatever that means.’’ The Legal Division in particular and the military government in general failed to grasp the intimate relationship between the rule of law and democracy for which the German e´migre´s were desperately arguing.40 A larger, more concrete legal issue lurked behind the problem of which laws German judges ought to apply. The notion that a foreign power could hold individuals in other nations accountable to laws not of their own making—international or domestic—was an idea only beginning to germinate in international law.41 At the close of World War II, international law was still relatively undeveloped and what did exist remained grounded in the principle of state sovereignty. This priority of maintaining state sovereignty was, the German e´migre´s noted, directly at odds with Allied assertions of power over Germany in a series of multilateral agreements that began with the Atlantic Conference in 1941 and continued through the German Occupation Statute of 1949. Even though West Germany became a separate state that year, the three Western occupying powers retained considerable power under the country’s new 1949 constitution, or Basic Law, and West Germany did not gain full sovereignty until 1955. Throughout the preceding years, occupation officials and legal thinkers debated the legality of an ongoing military occupation, its status both in international law and as a legitimate action to be undertaken by a constitutional democracy.42 Another obstacle for realizing the rule of law ideal was the lack of precedent in international law for a unilateral peacetime occupation and reconstruction of one country’s legal and political system by another. The standing customary distinction in international law was one between occupatio bellica and occupatio pacifica.43 The first referred to the unilateral occupation of an enemy country during wartime, the second to a peacetime occupation rooted in a formal agreement between the occupier and the occupied. The military takeover and rebuilding of Germany in a postbelligerent context fit neither category. In the words of the international law

An Occupation and a War Crimes Tribunal

141

expert Pitman Potter, ‘‘the two most salient characteristics of the law of military occupation were its assumptions that such occupation was a temporary phenomenon, and the holding that it did not and must not interfere with the constitutional and permanent aspects of the life of the country.’’44 Until World War II, military occupation was considered an alternative to civilian or juridical rule; it was expedient, physically coercive, and it did not entail a legal right to interfere with the internal workings of the occupied territory. Now the Allies sought to remake the occupied countries along normative lines and to strip them of military power, though neither of these goals was sanctioned by international law. According to one stern formulation, ‘‘The only way in which this innovation can be justified legally is to hold that by unconditional surrender Germany and Japan gave their conquerors authority to do anything at all, including, presumably, annexing territory.’’45 The top-down, nonconsensual remapping of an entire country, state and civil society, made the German occupation ‘‘in the traditional meanings of international law . . . impossible.’’46 Nor was this simply a positivist view of the occupation. The German legalists, almost to a person, agreed with this interpretation. Yet it did not stop those such as Neumann and Kirchheimer, while working during the war at the OSS’s Central European Section of the Research and Analysis Branch, from trying to find as much positive law as they could to justify the necessary intrusion into German sovereignty and life. However, concerning the occupation as a whole, the limitations of existing law were simply too great to overcome, as Neumann freely acknowledged in the late 1940s. ‘‘Clearly the Hague Convention cannot apply to the occupation of a country which the occupants desire to remodel from top to bottom,’’ Neumann wrote in an essay assessing the lessons of the Nuremberg trials. ‘‘The problem then becomes one de lege frenda.’’47 If there were to be a legal basis for this experiment, it would need to be invented. The meaning of what in the United States was being called— rather hopefully—a ‘‘democratic occupation’’ would have to be devised at the moment of its enactment.48 As with the notion of a ‘‘democratic bureaucracy,’’ however, the linguistic strain, let alone the actual combining of the two practices, democracy and occupation, was more fantasy than reality. Nevertheless, the idea that it ought to be pursued and the effects that idea had on how the occupation was conceived and executed point to another internal strain under which the modern American state labored. Most government officials and many scholars believed, as John H. Herz,

142

Chapter 4

the German e´migre´, Research and Analysis Branch consultant, and adviser to the occupation forces, suggested, that a ‘‘return from totalitarian lawlessness to the rule of law can scarcely be undertaken successfully by clinging to rule of law procedures.’’49 This they knew from recent German history. Nevertheless, most liberal legalists believed that the occupation could retain ‘‘its character as a legal institution’’ by deviating from the rule of law ideal only under ‘‘exceptional’’ circumstances. In this rendering, it was not the occupation that was exceptional, but the particular conditions with which it might be faced. Only these could justify a departure from the rule of law if power was not to be exercised arbitrarily and hence the wrong lesson taught. Ernst Fraenkel argued this case in his study of the rule of law during the Rhineland occupation, which he wrote in anticipation of the Allied occupation of Germany. ‘‘It is when the bearer of political power looks upon legal regulation merely as rules of expediency . . . that the supremacy of law is replaced by the supremacy of force.’’50 Yet expediency had been a watchword of the New Deal state, and it remained so when that state turned its attention to warfare, only now democracy and the rule of law joined the rhetorical parade and hence could not be so easily dismissed when it was convenient to do so. The liberal legalists settled on a via media. The rule of law ideal would stand at the ready but would have to give way—temporarily—to the goal of democratization and the reality of the coercion needed to purge the political system of Nazis and establish new political and legal institutions. Scholars generally agreed that the lofty goals articulated at Potsdam had taken the postwar German project far ‘‘beyond military occupation’’ and in so doing had endangered both the rule of law ideal and democracy. Neumann deemed the Allied takeover a full-fledged ‘‘military government,’’ which ‘‘must be sharply distinguished from mere occupation.’’ An occupation, he asserted, would entail a civilian force with ‘‘merely advisory and veto powers vis a vis the indigenous government.’’51 For military occupation meant, in fact and as defined by Allied agreements, that the governing force ‘‘retains the right to determine the extent of its own power.’’ But for Neumann, as for Loewenstein, it was not simply the right of absolute power that was the problem. Ironically, it was the combination of that right with a swift and far-ranging devolution of power to the Germans at the state and local levels. This move toward ‘‘self-rule’’ left ‘‘the impression of a functioning Germany democracy,’’ but the reality was a form of authoritarian rule in which ‘‘the powers of the political parties, and of the

An Occupation and a War Crimes Tribunal

143

democratic assemblies and cabinets created by them are narrowly limited, and, in all crucial questions, represent a mere sham.’’ This ‘‘sham system of democracy’’ could be easily taken for ‘‘true democracy’’ by the Germans, which made for a bad model and a morally questionable lesson for a country that had so recently lost its democratic republic to authoritarianism through similar forms of mystification. In fact, argued Neumann, ‘‘this type of indirect rule invariably exercises a corrupting influence upon whatever democratic trends may be growing’’ among the country’s own leadership. The corruption stemmed from a Hobson’s choice that Neumann identified: either become the handmaidens of the occupiers, as in the British colonial system, or oppose the military government and risk the takeover of local institutions by antidemocrats.52 The goal of democratization stated at Potsdam and very much hoped for by Neumann and other German e´migre´s appeared chimerical. There were other difficulties in the U.S. approach to establishing democracy as well. Virtually all of the German legalists believed that the military government needed to be more aggressive in removing the ‘‘enemies of democracy’’ from the system. In other words, they sought a more forceful denazification program. Brecht, Loewenstein, Neumann, and Kirchheimer agreed that the Americans did not fully appreciate the importance of ensuring that the new institutions were populated as much as possible by democrats. For the social democrats Neumann and Kirchheimer this required not only the formal rights of freedom and equality but a populace committed to sustaining demoracy, and that required a reasonably egalitarian socio-economic structure and real, not ‘‘sham,’’ democratic participation. Without true democrats in positions of political decision making, the Americans risked the takeover of representative institutions by ‘‘wicked men’’ who would use their sovereignty to ‘‘abrogate civil rights . . . to destroy law and introduce lawlessness.’’53 Without rights or legality there would be no democracy. The Americans’ lack of attention to the preconditions for democracy had several sources. One, according to Neumann, came from a misunderstanding of democracy. Americans’ obsession with rights and nondiscrimination, enshrined in the Potsdam Agreement as the essence of democratization, blinded them to the structural requisites for democracy. Democracy was not just a matter of rights, of freedom and equality inscribed in a constitution—though it was that too. Democracy was also a form of government: majority rule, which involved the expression of

144

Chapter 4

popular political will. Ultimately, democracy was something the Germans had to create for themselves; but the Americans and other Allies ought to ensure that the preconditions were in place. A bureaucratic occupation, unfortunately, worked against this goal, as Neumann had predicted it would in 1944. In an advisory document produced for the OSS, Neumann suggested that military government would likely be confronted ‘‘initially with a choice between cooperation with the Nazis or administrative chaos. It should be the established policy of the military government to solve this dilemma always and at the earliest opportunity by choosing to carry out a far reaching purge than insist upon orderly administration.’’ Neumann predicted that the military government would rely on entrenched bureaucrats and called on the occupation officials to work with ‘‘laymen’’ instead of bureaucratic experts. One had to crack the insularity and ‘‘solidarity’’ of judges and bureaucrats, if another Weimar were to be avoided.54 As it turned out, the American occupation, populated largely by bureaucrats with an elective affinity for their German counterparts, started out by pursuing Neumann’s suggestion but, to the chagrin of the German legalists, quickly abandoned it. Denazification rested on arbitrary standards for determining who ought to be excluded from the future government, relying in part upon extraordinary questionnaires that asked Germans about their past Nazi affiliations. The U.S. military government cast a wide and ineffectual net in this process, which served as an emblem of the contradictions between the means and ends of the Allied occupation. American scholars took note: ‘‘The followers of the Nazi Party became the party of the Followers, and Germans came to doubt if democracy could be democratic, or justice be just.’’55 Nor could the Americans acknowledge that the denazification program was itself a form of discrimination that skirted the principles of legality in the short run to preserve the rule of law (and democracy) in the longer term. From his office in Berlin, Loewenstein expressed frustration with the emphasis on nondiscrimination in the areas of ‘‘race, religion or political opinion.’’ At the same time the military government took too lax an approach to the exclusion of Nazis from political and legal offices. ‘‘We are discriminating against the former Nazis because of their political opinion, how can we square the circle—why not admit that democracy doesn’t have force for former Nazis?’’56 Similarly, added Loewenstein, an unyielding commitment not to apply ex post facto law—even though that was exactly what the Americans were busy doing at the Nuremberg trials—made no sense in a context where

An Occupation and a War Crimes Tribunal

145

the rule of law had been distorted beyond recognition. It meant that cases of enforcement of Nazi ‘‘laws’’ of denunciation would stand, including a case in which one person turned in (‘‘denounced’’) another knowing that the latter would be shipped off to a concentration camp. Here, apparently, discrimination was acceptable. American lawyers ‘‘smell a rat of retroactivity everywhere and this is a very good defense of intellectual inertia, the most prevalent quality of the legal division.’’57 Democracy, the legalists agreed, was simply too fragile to tolerate anything less than a temporary legal double standard: one for those who favored democracy and another for the antidemocrats. That was the unspoken premise behind denazification, but it needed to be brought into the open and given intellectual and practical consistency. It was a delicate balance, however, because too much coercion would make a mockery out of the rule of law and democracy, as Neumann pointed out. For example, the local and state elections called by the Americans in the middle of 1946 was a case of ‘‘ramming down the throat of a people an alien form of government,’’ according to Loewenstein, who noted that he had warned against such an approach in his recent book, Political Reconstruction.58 In that book, published in 1946, Loewenstein pointed to Reconstruction in the American South as a model not to follow because it was too coercive. Loewenstein singled out the wholesale disenfranchisement of rebellious southerners and the loyalty oath required to have one’s full citizenship rights reinstated as mistakes made by the North. The first was authoritarian and was destined to breed resentment; the second was antidemocratic—it smacked of a religious test—and ineffectual. Loewenstein concluded his ‘‘lessons’’ to be learned from American Reconstruction with the statement, ‘‘There should be no wholesale exclusion from the franchise, by category, of people identifiable with a totalitarian regime. But neither must there be a wholesale and sweeping admission to the national assembly or to office.’’ He also ruled out a loyalty oath, which would be farcical given the morality, or lack thereof, of the Nazis. Instead, Loewenstein argued, ‘‘Exclusion from the vote and disqualification for office should be confined to the leaders active in authoritarian parties or antidemocratic groups and to persons prominent in the totalitarian order; but the line must be drawn in such a way as to bar all compromised persons from active political life. This implies simultaneously exclusion from any appointive position in government and administration. Individual redemption of members of the disqualified classes should not be permissible as long as Nazism or a local

146

Chapter 4

variety of it remains a threat, however remote.’’59 At the Legal Division Loewenstein proposed that the new civil service law for Germany require government officials to demonstrate ‘‘loyalty . . . to the democratic constitutional state.’’60 How this would be accomplished without an oath, Loewenstein did not say. Using force to ensure the democratic nature of a regime was obviously a tricky business. As Neumann warned, coercion inflicted from above represented the opposite of popular sovereignty. Nevertheless, some sort of coercion aimed at restoring democracy and legality had to be balanced with what Loewenstein called ‘‘the idol of internal sovereignty of the state.’’61 The solution for the legalists was to effect an aggressive purge, of people and institutions and laws, to establish basic legal protections, and then allow the Germans to do the rest. In contrast, they believed, the occupying powers were forcing democratic procedures on the Germans by turning over power to them while paying little attention to democratic institutions, such as majority rule, the socioeconomic conditions in which democracy would best flourish, and the task of instilling an appreciation for the importance of democracy into the German people.62 The problem of a potential antidemocratic majority lay behind much of the nervousness about relinquishing power too quickly and carelessly to the Germans. For this reason, Neumann and Loewenstein argued that a strong central government would be necessary to ensure a democratic Germany. But it would be a mistake to think that this was an argument for a bureaucratized state. One of the most common hedges against a powerful legislature or a tyrannical majority in Germany as in all modern states was the bureaucracy. But the bureaucracy, under whose aegis the German legalists included judges (who in Germany were civil servants) was among the biggest obstacles to democracy, most German legalists believed. ‘‘Given all these conditions—full agreement of the [Allied] powers, a strong central government, large-scale nationalization and even economic prosperity— there is still no certainty that a viable democracy will result,’’ Neumann wrote in 1948. ‘‘One basic factor operates against it: bureaucratization.’’ Neumann explained that while in a democracy bureaucracy was ‘‘disagreeable,’’ in a nonfunctioning democracy, such as Germany, too much bureaucracy could be ‘‘fatal.’’63 Yet the Americans, the German legalists believed, were favoring the bureaucrats who served under the Nazis in their restructuring of German government. It was easier for the military government to go back to the

An Occupation and a War Crimes Tribunal

147

‘‘old basses’’ and ‘‘vested interests’’ than to find new personnel, Neumann argued. In addition, military government ‘‘naturally prefers to deal with experts,’’ all points with which Loewenstein, experiencing the occupation firsthand, fervently agreed. Together the military government and the German bureaucrats were fostering ‘‘a technocratic attitude, perhaps the attitude most dangerous to democracy. ‘Efficiency’ becomes the leitmotiv of political life much as ‘rationalization’ became the motto of the Weimar Republic.’’64 The old bureaucracy, with its entrenched interests, had to be diluted and ultimately subordinated to democratic institutions at all levels of government. Neumann was adamant: ‘‘The bureaucratic character of German rule constitutes a danger to democracy as a form of government and a form of life; and the composition of the bureaucracy constitutes a threat to all democratic forces.’’ Hence both the structure of the bureaucracy and its values were anathema to a constitutional democracy—in Germany, especially, but in any country where the bureaucracy became entrenched and accumulated a great amount of power.65 The opposition to democratization as an expedient pressed on the Germans by OMGUS was not limited to proponents of the rule of law ideal. The legal positivist Hans Kelsen also expressed skepticism about the goal of bringing democracy to Germany under the guise of military government. According to Kelsen, democratizing another country could not be a goal of military occupation, which required a legitimate, that is, sovereign state with which to negotiate. Hence Kelsen’s views accorded with Neumann’s to the extent that they both believed that the state of German sovereignty, that is, that there was none, limited what could be achieved by those who sought to reconstruct Germany. The formal structures that Neumann felt to be necessary but not sufficient for a legitimate occupation were for the positivist Hans Kelsen the very crux of the matter. In Kelsen’s view, under international law there had to be a political entity with which to work out these matters. The distinct order of business, therefore, was for the occupiers to create a new state by creating new institutions, including a central government. Hence for Kelsen the future political and social arrangements in Germany would necessarily be dictated, not arrived at democratically. In modified form, this is in fact what happened, though not according to the theory that Kelsen had advanced.66 Kelsen, who by midwar had joined the law faculty at the University of California, Berkeley, made the extreme case, one with which most scholars

148

Chapter 4

did not agree. Germany, he argued, ‘‘had ceased to exist as a state in the sense of international law’’ and therefore had lost its sovereignty to its occupiers. With unconditional surrender, Germany had ceded all political and legal power to the Allies, and therefore had no independent government.67 Law and state, Kelsen believed, were one; every state was by definition a (coercive) legal order, and had no authority outside the law.68 With the 1945 Declaration of Berlin, which ratified Germany’s surrender, the Allies granted themselves ‘‘supreme authority’’ over Germany and specified that an outside entity, the ACC, would run the country.69 They also kept Germany in a state of legal limbo by deferring the signing of a peace treaty, suggesting that the Allies were still in a state of war with Germany, and that therefore the rules of war, not peace, applied.70 The combination of these legal and political factors led Kelsen to insist that Germany had given up its sovereignty. From this ‘‘fact’’ it followed that the Allies’ presence in the territory of ‘‘Germany’’ did not constitute a military occupation, which required a state to possess a legitimate government that had temporarily lost control but that continued to be recognized and with which one could negotiate. As a good legal positivist, Kelsen was doing little more than restating in normative language the actual relationship between the Allies and Germany. This is to say that he deduced the legal relationship between the conquered and the conqueror from what the victors actually did and said they were going to do. For example, at the time he wrote the essay in which he laid out these ideas, the ACC had already announced its intention to unilaterally redraw Germany’s boundaries. He noted that ‘‘only the territorial sovereign has the power to dispose of territory.’’71 Kelsen acknowledged that traditionally ‘‘the sovereignty of the conqueror over the conquered territory was possible only by subjugation.’’ And subjugation, as a technical matter, was possible only through the annexation of the conquered territory, the veritable destruction of its existence.72 The doctrine of subjugation through annexation was, however, ‘‘untenable,’’ according to Kelsen. Since Germany no longer had control over its own territory, ‘‘it would be no state’s land if it were not under the sovereignty of the occupied powers.’’73 Therefore, reasoned Kelsen, annexation is not required to establish territorial sovereignty; it is enough to control the country’s armed forces and its government. Most legalists rejected Kelsen’s contention that Germany was no longer a state in any sense, while accepting the claim that the rules and categories

An Occupation and a War Crimes Tribunal

149

of normal politics did not and could not apply.74 Hence as soon as the Allies became peacetime occupiers of Germany the rhetorically powerful dichotomy of democracy and dictatorship, under which the war had been fought, began to lose credibility. Moreover, the problem of how much to deviate from the rule of law in Germany’s reconstruction was made more complicated by the discourse, which emerged in the United States during the 1930s, over the degree to which the state, in particular the executive, should invoke emergency powers within its own domain.75 During the Depression, Roosevelt took unilateral action an unprecedented number of times; but he set new precedents in this area during the war.76 Declaring, first, a ‘‘limited national emergency’’ upon the outbreak of the war, and then ‘‘an unlimited national emergency’’ in May 1941, Roosevelt arrogated to himself huge grants of power.77 The numerous executive orders that surrounded these pronouncements added to the sense that the preponderance of power was held by the president and his administration. While the concentration of executive and administrative power occasionally caused controversy at home, the story was different when it came to the American state’s actions abroad. Here, scholars, including those who maintained an abiding concern for the powers of the newly centralized state, sought ways to justify the concentration of executive power and coercive government in a constitutional democracy but in a manner that depended upon the ‘‘extraordinary’’ circumstances of military governance and thus could not be invoked in ‘‘normal’’ political circumstances.78 A military occupation undertaken by a constitutional democracy, at least some legalists hoped, could accomplish ‘‘a revolution by legal means.’’79

Constitutional Dictatorship One of the most significant legitimating concepts for a ‘‘democratic occupation’’ to emerge from the pens of legalists was what Cold warriors would mockingly call ‘‘the Procrustean mold of constitutional dictatorship.’’80 Numerous scholars pointed out at the time, Carl Friedrich first among them, that neither in republican political theory nor most of political history was dictatorship thought of in exclusively pejorative terms, or as necessarily in opposition to constitutionalism. It was, rather, considered a necessary evil to be exercised at moments when the constitutional order

150

Chapter 4

was being threatened, either by an external enemy or by an internal insurrection. In the unpredictable and potentially anarchistic years immediately following the war, a number of legal scholars sought to rehabilitate a limited concept of dictatorship. To rehabilitate any notion of dictatorship at this moment was no small challenge. That any form of dictatorship, however presumably temporary in its nature and benign in its ends, summoned uncomfortable associations with the just-defeated fascists was not lost on these legal thinkers. One liberal legalist, praising the expedience and effectiveness of temporary dictatorships in ancient Rome nonetheless lamented, ‘‘Owing to the efforts of shrewd self-advertisers like Hitler and Mussolini . . . the idea of dictatorship has for some time been associated almost exclusively with opposition to the forms of constitutional government.’’81 In the face of such associations, legal theorists attempted to divorce the idea of dictatorship as emergency rule from the notion of totalitarianism as absolute power. According to Friedrich, one of the concept’s most ardent defenders, constitutional dictatorship, in contrast to the totalitarian sort, was a way of maintaining the rule of law when the latter was threatened with extinction, since it was a temporary rather than a lasting device. In addition, constitutional dictatorship was a means of limiting executive power in situations where executive absolutism was considered to be the only alternative.82 Executive power was less dependent upon the usual processes of democratic government, and therefore could be exercised more efficiently and authoritatively, its proponents argued. As the constitutional scholar Albert L. Sturm explained, ‘‘Normal democratic government is sluggish by nature since it operates on the basis of consent arrived at by discussion and compromise. Delays in the legislative process may endanger the safety or vital interests of the nation when national security is threatened.’’83 Constitutional dictatorship indicated how limited government could promote the expansion of specific powers of the state with the object of thwarting the development of other, more antidemocratic forms of political authority. In effect, legal thinkers were proffering the idea of what the legal academic Kathleen Sullivan has called an ‘‘emergency constitution,’’ or a constitution that makes explicit provision for greater executive authority during times of crisis or war. The problem, of course, was that the United States had nothing of the sort, at least insofar as the text was concerned. This may be

An Occupation and a War Crimes Tribunal

151

one reason why legalists turned to constitutional dictatorship as a way to the rule of law tradition but in the most ‘‘legalistic’’ manner possible.84 Many constitutional scholars readily admitted the need for authoritarian rule in the occupation of postwar Germany because of the exceptional circumstances in which the country found itself after the war: Germany was a nation without a state. Under the aegis of military government, it was as if the Allies had frozen the frame of the German state, then thoroughly edited it before returning it to motion. It was hard to reconcile this approach with fealty to the rule of law and democracy; yet it was equally hard to imagine a radically different strategy, given the nature of the Nazi regime and the desire to establish a viable institutions as quickly as possible. ‘‘Unconditional surrender resulted in a complete standstill of justice, a situation without parallel in modern times in any organized state,’’ Loewenstein observed. One could say the same for every other sector of German public life, and for much of private life as well.85 Although the Americans transferred power quickly to handpicked state-level officials, they ensured that the Occupation Statute of 1949 was written in such a way that they, along with France and England, would retain effective sovereignty over what was now the West German state. This authority was reinforced by the West German parliament when it adopted the provisional constitution of 1949.86 That document gave the occupiers the right to approve any amendment to the constitution and to resume greater control over West Germany when they determined that the conditions demanded it.87 Neither the manner in which the Allies governed Germany during the occupation nor the way they conveyed power back to the German state was accomplished democratically. To Friedrich, such expedients seemed the best way for a constitutional democracy to impose constitutionalism on a politically impotent and formerly authoritarian society. The undemocratic means coupled with the democratic ends of the Allies yielded an acceptable balance between constitutionally restrained dictatorial governance and autocracy. While objecting to the occupiers’ ‘‘violat[ion] of every one of [the democratic] specifications’’ of the U.S. military government, for Friedrich, the existing political arrangement in its basic outlines was likely the most practicable, since military government must necessarily be ‘‘strongly autocratic.’’ In these circumstances, Friedrich argued, ‘‘force can [legitimately] be used.’’ Under military government, force is acceptable when it is the only way to constrain the opponents of constitutionalism.88

152

Chapter 4

Although they supported and even helped to formulate the American approach to the German occupation, many German legalists were much less forgiving of OMGUS’s extralegal activities than Friedrich, who seemed more interested in the foundational law of constitutionalism than everyday law and democracy. The German legalists decried, for example, instances of blatant ‘‘suspension of the rule of law,’’ such as mass arrests of suspected Nazis, as well as the detention without trial of many who were arrested after the fighting had ceased. At times, the accusations grew rabidly hyperbolic: ‘‘It is the affinity of such [criminal legal] procedures with Gestapo methods and the replacement of individual by collective accusation which constitutes a grave detraction from Western ideals of justice,’’ charged the legal scholar Wolfgang Friedmann.89 Comparisons of the U.S. military government to Nazi Germany flowed readily from the pens of legalists. Eli Nobleman, who oversaw the military courts in Bavaria, recalled, ‘‘Many excesses were committed, and the treatment afforded defendants was somewhat similar, in many respects, to that which they had received from Nazi courts. Persons were constantly arrested without being advised of the charges; they were often imprisoned while awaiting trial far in excess of the term of any sentence they might have received after trial and conviction; and in many instances, rights guaranteed by military government law were disregarded and convictions were based upon evidence which was clearly insufficient.’’90 Nobleman also noted that during this period there were few written and no published judicial decisions. A practicing attorney, Nobleman seemed unsettled by the ‘‘justice system’’ erected by the American military government and its undermining of the democratic image the Americans hoped to portray. However, he contended that given the ‘‘paramount’’ concern of maintaining law and order, there was ‘‘little time for the observance of legal niceties’’ early in the occupation with the war not yet over. In fact, Nobleman believed, most of these problems were corrected during the permanent occupation.91 Loewenstein witnessed otherwise as late as March 1946, however, when he complained of ‘‘thousands of persons innocently arrested and held without trial,’’ and wondered how this could be considered ‘‘bringing democracy to Germany.’’92 Nobleman’s appeal to necessity was precisely the kind of logic that the legalists hoped to counter for the purpose of establishing democratic legitimacy.93 But if ‘‘military government has appeared to be more nearly akin to dictatorship than democracy,’’ then how could one apply the rules of

An Occupation and a War Crimes Tribunal

153

democracy to a military occupation?94 In parsing the differences between military government, Allied style, and outright dictatorship, Friedrich relied on the traditional criteria of constitutional dictatorship. First, ‘‘such constitutional dictatorship, whether formally considered martial law, emergency powers, state of siege, or dictatorship, is brought into existence for the explicit purpose of protecting the constitution against exceptional dangers.’’ This criterion addressed the goals of the authoritarian regime. Other criteria entailed the appointment of the dictator/military governor by a state that is itself constrained by a constitutional government; an enumeration of the ruler’s powers; a ‘‘clear time limit’’ as to the period during which he will serve, or, a provision for recall; and, finally, a determination of conditions requiring dictatorial powers (a ‘‘state of emergency’’) by a person or persons other than the dictator/governor himself. According to Friedrich, Allied military government ‘‘corresponds fairly closely to [these] criteria.’’95 Perhaps this was the case, but Friedrich’s criteria had dealt mainly with the form of the regime, not with its objectives. Conservatives and some erstwhile legal realists went even further than their liberal legalist colleagues in arguing for the necessity of unaccountable state power in extraordinary situations.96 The constitutional historian Clinton Rossiter devoted an entire book to the subject in which he insisted that the line between dictatorship and democracy was anything but bright. Constitutional dictatorship, he pointed out, ‘‘has been with us exactly as long as constitutional government, and has been used at all times, in all free countries, and by all free men.’’97 The attraction of the concept to conservatives such as Rossiter was less as a way to save the rule of law by increasing the flexibility of constitutional government (the attraction for many liberals), and more as a device to justify extraordinary measures taken by government in the name of war and national security. One might see this as the difference between an emphasis on the rule of law and an emphasis on law and order, or between valuing democracy versus valuing stability and security. While for the liberal legalists any resort to dictatorial power was to be avoided if at all possible, for a conservative such as Rossiter that same power functioned as a survival mechanism for the American state. ‘‘In the successful prosecution of a bitter struggle for survival the administration at Washington had continuous resort to actions that would have been looked upon as unconstitutional, undemocratic, and downright dictatorial in times of peace.’’ Since it was a time of war, Rossiter continued, ‘‘these actions

154

Chapter 4

seemed altogether necessary and proper, and the American people generally gave them their support and applause.’’98 Rossiter went on to mention everything from such U.S. wartime legislation as the Price Control Act, which granted unprecedented powers to the Roosevelt administration, to the War Powers Board, the censorship of allegedly seditious texts, the severe restriction and virtual elimination of various civil liberties, and even the seizure of corporations—all under the heading of ‘‘necessary and proper’’ uses of state power during wartime. (Rossiter neglected at this point to mention the clearest instance of the use of antidemocratic, emergency powers: the internment of Japanese Americans.)99 Nevertheless, Rossiter, from the statist end of the conservative spectrum, found himself arguing on the same grounds as his libertarian confrere Friedrich Hayek. Both thinkers amalgamated a wide variety of state actions in such a way that confounded different forms of political power. For Rossiter, however, the primary goal was to ‘‘restore normal conditions’’ so as to preserve the state itself during crises, whereas Hayek thought not in terms of safeguarding the collective state but of protecting the liberty of the individual from that state. It was precisely this lumping together of discrete political mechanisms to which the German liberal legalists objected as they sought to clarify the relationship of the rule of law and democracy, taking Weimar as their object lesson. Karl Loewenstein, for example, insisted that Rossiter had confused ‘‘crisis government’’ with dictatorial power. Not every use of emergency power by the executive was an instance of dictatorship. Perhaps most important, concentrating power to manage a crisis could be constitutional, if ‘‘carefully hedged in,’’ while dictatorship by definition could not. Loewenstein rejected the idea that authoritarianism and constitutionally exercised authority could coexist. Dictatorship was ‘‘government without constitutional restraints.’’100 On the other hand, if strong executive power were ‘‘democratically controlled in the exercise of delegated powers’’ and if ‘‘the courts continue to scrutinize the executive ordinances under delegated powers from the viewpoint of exce`s des pouvoirs (or under judicial review) the appellation of ‘dictatorship’ is palpably inapposite. Crisis government, when subject to continued democratic control . . . is not ‘dictatorial,’ whether constitutional or otherwise.’’101 Rossiter elided the distinction between crisis and dictatorship in two ways. First, he juxtaposed bounded deviations from ‘‘normal’’ democratic government with ‘‘extra-constitutional’’ assertions of dictatorial powers. Second, he engaged in textualism, a form of constitutional interpretation

An Occupation and a War Crimes Tribunal

155

in which the letter of the constitution is construed literally and narrowly. Loewenstein cited Rossiter’s ‘‘startling observation’’ that Article 48 of the Weimar Constitution was ‘‘a magnificent assertion of the sovereignty of the people, manifested in a forthright expression of the right of national selfpreservation.’’102 The liberal legalists believed Article 48 represented an obvious ‘‘exception to the rules of democracy.’’103 For Loewenstein, Arnold Brecht, Franz Neumann, and many others who had lived through Weimar, Article 48 stood as a model of how not to incorporate emergency powers into the constitution, one so defective as to have contributed to the demise of the Republic.104 Article 48 allowed the president, under the rule of temporary dictatorship, to declare a state of emergency, and thereby to suppress constitutional rights, to call up the military, and to disband state government ‘‘if public order and security are seriously disturbed or endangered.’’ Article 48 was not protective but destructive of ‘‘national self-preservation’’ and democracy; it was but a nominal expression of popular sovereignty.105 Although it had been called upon many times before, Article 48 was most infamously invoked on February 28, 1933, by then chancellor Adolf Hitler in response to the Reichstag fire, which Hitler blamed on the German communists. The fire, Hitler disingenuously declared, was but a first step in a communist takeover of the German government. As such, it had produced a ‘‘national emergency’’ requiring the suspension of parts of the Weimar Constitution along with numerous other emergency measures for which Hitler claimed constitutional authority.106 In fact, Hitler continued to seize the opportunity to appear to acquire power legally. As Article 48 endowed the president with emergency powers and required a presidential decree to put them into effect, Hitler had to convince President Paul von Hindenburg to do just that, and he obliged. The effect was to decimate large parts of the Weimar Constitution, most glaringly the protection of civil liberties, under the authority of that very constitution.107 Once Hitler held elections in March 1933 and the National Socialists controlled the government, he quickly secured an Enabling Act, which vastly increased his executive powers and effectively imposed martial rule for the duration of the Nazi regime. All of this was achieved ‘‘constitutionally’’ since any enabling act was considered ‘‘technically valid under the Constitution when it obtained a two-thirds majority in both houses, and the constitution was never abrogated. That majority and no more was required for any change, no matter how fundamental it might be, according

156

Chapter 4

to the prevailing opinion of the courts, the lawyers, and the commentators.’’108 Thus was cemented the ‘‘legalistic disguise of the sliding revolution.’’109

Bringing the Law Back In Alongside the issue of the extent to which the occupying forces themselves should abide by the rule of law stood the problem of how and to what degree those forces should help to reestablish the rule of law for the Germans. The most common position among legalists held that the Allies ought to aid in restoring the rule of law to Germany and not allow the Germans full legal control until legality could be ensured. For Friedrich, however, the picture was more complex. He believed the German rule of law tradition, embodied in the Rechtsstaat, remained strong enough in Germany that some residual constitutionalism had survived the Nazi takeover. Nevertheless, most of what passed for a legal system under the Nazis had to be altered and the ideology behind it unlearned. Hence the balance between self-government and the rule of law, or democracy and legalism, was a tricky one. During the war Friedrich had argued that the choice was not between an external power forcing the Germans to abide by the rule of law and ‘‘the retention of existing laws.’’110 The latter would be in keeping with the Allies’ self-professed intention to place self-determination of sovereign states above all else. Friedrich suggested that there was a third way the occupation government could oversee the restoration of the rule of law, one that would be executed by the Germans themselves. Specifically, ‘‘military government should be prepared to reexamine the arbitrary rules and regulations prevailing in Axis dominated lands, with a view to suspending whatever rules appear to have been promulgated mainly with a view to securing a privileged position for the party in power and its henchmen.’’ Although selfgovernment was the objective, the occupiers could not very well enforce existing fascist laws. Therefore, the Allies, and the Americans in particular, tried to sort out the Nazi-sponsored laws, which would be jettisoned, from those that were holdovers of the Weimar era, which would be maintained. Indeed, the retention by the Nazis of a large portion of German legal codes (with alterations in many cases) meant that ‘‘the majority of codes and statutes could be retained subject to minor revisions.’’ The ‘‘main task’’ for

An Occupation and a War Crimes Tribunal

157

the Americans became a cultural one: ‘‘the restoration of respect for law and the abolition of a purely political conception of justice.’’111 The task of rooting out Nazi laws would be made easier by the fact that most of them had been published as evidence of the Nazis’ mythical commitment to the rule of law. This chore, though, would be a delicate one because it required extralegal measures—the undemocratic removal of laws—to be taken in the name of legality. The solution, according to Friedrich, was that the eradication of offensive laws should be ‘‘carried out in the spirit of adherence to legal procedure and justice.’’112 Just how the American military was to accomplish this apparently contradictory act Friedrich did not say. Presumably he thought that the repeal, suspension, and modification of German laws could follow an orderly and rational process, subject, to be sure, to certain procedural safeguards. However much Friedrich expressed concern about occupation forces running roughshod over the rule of law ideal, his main point was that the Germans should be trusted to reinstitute the rule of law themselves, once it was reestablished. Friedrich offered three reasons for his insistence on Germans’ legal self-determination. First, it was not possible to ‘‘[impose] constitutional government and democracy by force of arms’’ or, for that matter, by nonmilitary coercive action. Second, Germans were as steeped in a rule of law tradition as a continental nation could be. Friedrich adopted Fraenkel’s concept of a ‘‘dual state’’ to argue that the beliefs and positions of those jurists who had maintained a semblance of the rule of law would be ‘‘automatically revive[d]’’ with ‘‘the destruction of the Nazi sector within the legal system.’’113 Finally, suggested Friedrich, the rule of law was constitutive of self-government. ‘‘The establishment of constitutional government calls for a constituent group ready to assume the responsibility of a limited government, and democracy calls for a people who are on the road to freedom.’’114 Friedrich reasoned that when the rule of law is the norm, sovereignty is respected and the state is legitimized. Unfortunately, he did not address the much-disputed issue of whether the Germans were prepared to assume right away the responsibilities of democracy. Friedrich, like many statist liberals but unlike most of the German legalists, downplayed the inherent tensions between the rule of law and democracy. This view did not go unchallenged. One of the most notable ripostes was a realist critique by the legal scholar Marshall Franklin that sounded very much like the German e´migre´s while also echoing Rossiter’s endorsement of crisis government. Franklin argued that Friedrich, in his eagerness

158

Chapter 4

to preserve simultaneously the rule of law and the individual autonomy necessary for democracy to take root, had merely called for a ‘‘relative occupation’’ of Germany. Such halfway measures could not work in a country so recently and thoroughly disdainful of the rule of law. It would inevitably, Franklin felt, result in the resurrection of Nazi power.115 The suspension of Nazi laws accompanied by the resumption of Weimar law would also be insufficient to ensure the eradication of Nazi norms. However, for Franklin, the main problem with Friedrich’s argument lay in his ‘‘mechanical,’’ or textualist view of the law. According to Franklin, Friedrich thought that Nazi texts served as the primary prop for the Nazi legal system, while the role of Nazi jurists was secondary. Nazi judges were less important to the continuation of Nazi law presumably because not all of them believed in the abominations they meted out. They would therefore resume their respect for legality now that they were no longer being coerced to behave in a way partial to authoritarian power. Eradicate the texts and, eo ipso, return to the Weimar legal system. However, Franklin was reluctant to give so much weight to legal texts. His realism could not abide the conceptual separation of Weimar legal texts from the influence of National Socialist ideology. They would remain in place at least vestigially under this scenario, and Friedrich seemed remarkably unconcerned about this fact. Friedrich had failed to recognize the normative aspect of law by ignoring the ‘‘aims and purposes of the legal order.’’ The heinous ends to which the Nazis put their legal system had tainted those Weimar laws that had been left in place by the Nazis (which were mostly of the commercial and criminal type) just as surely as they had tainted National Socialist legislation itself. While Franklin acknowledged the idea of constitutional residualism, that is, that the Nazis were ‘‘forced very reluctantly to retain certain Weimar legislation, such as the great German codes,’’ he added that they also had to ‘‘seek to overcome those texts.’’116 Legal texts had no autonomous power; not only did the Nazis willfully misinterpret Weimar texts to suit their ideological goals, they also read them out of existence if they conflicted with National Socialist ‘‘law.’’ This, said Franklin, taking a quintessentially realist position regarding the unchecked power of judges, represented the ‘‘hegemony of the National Socialist jurist over the Weimar texts.’’117 To be fair, Friedrich appreciated the role of the jurist more than Franklin gave him credit for. Yet the importance of Franklin’s intervention lay in its questioning of whether legal texts could be an ultimate source of authority for the law and hence an important

An Occupation and a War Crimes Tribunal

159

part of the basis for the rule of law, or whether legal institutions and the people who populate them alone mattered. If legal texts had no autonomous role in instituting the rule of law, then they were unreliable as a means for reviving it. If Nazis, as adherents of National Socialist ideology, remained in Germany and were to be a part of the ‘‘new’’ legal system of postwar Germany, or even if those German jurists who ‘‘were compromised by history’’ were to take part in this legal system, then it would be their Weimar texts that prevailed, not the rule of law or anything close to American constitutionalism. Empirically, the mistake that Friedrich had made, following Fraenkel, was to assume that Germany’s prerogative and normative states existed parallel to and separate from one another. They did exist, said Franklin, but ‘‘the Weimar elements and the National Socialist elements interact and interpenetrate.’’118 In effect, the Nazis had created a new legal form, which Franklin described as the ‘‘victory over, but not the defeat of, Weimar law.’’119 Under these circumstances, only an utter command and control occupation, an ‘‘absolute occupation’’ could have a chance of establishing the rule of law. Echoing Secretary of the Treasury Henry Morgenthau, Jr.’s argument for executing rather than trying Nazi leaders for war crimes, Franklin described the task before the Allies in chilling, almost authoritarian terms. He was convinced that the occupiers would have to destroy the law in order to save it: ‘‘The legal system must be occupied. The rule of law and the theory of the independence of the German jurist must be rejected. There must be ‘intellectual’ or ideological control of the German jurist. National Socialist legal theory must be extinguished. The theory of ‘automatic’ German return to legality must be abandoned. The occupying armies must bend hostile jurists to their will, or bend to the will of hostile jurists. There is a science of veering the skill of the enemy technician against the enemy, and it should be mastered.’’120 In part because of such logic, a minority of liberal legalists doubted whether there could be any sort of ‘‘limited’’ exercise of unlimited power. From a symbolic perspective, they worried about distinguishing the ‘‘state of emergency’’ that now prevailed in Germany from other assertions of emergency conditions with much more pernicious ends, such as those which brought the Nazis to power in the first place, or the ‘‘continual state of emergency’’ that helped to sustain the Nazis thereafter.121 From a theoretical angle, they worried about whether even a circumscribed form of authoritarian power was the best way to overcome flaws in a democracy.

160

Chapter 4

Finally, as a practical matter, they worried about the ease with which emergency powers or even dictatorship might be invoked in the future. As Friedrich asked, what would prevent their ‘‘[perversion] into a usurpation of concentrated powers’’?122 In his more abstract writings, which were not directed at any particular policy initiative, Friedrich acknowledged that modern constitutional democracies had failed to find a formula for the temporary use of dictatorial or concentrated executive powers that conformed sufficiently to the rule of law, and that guarded against either executive or parliamentary absolutism. ‘‘All in all the quasi-dictatorial provisions of modern constitutional systems, be they martial rule, state of siege, or constitutional emergency powers, fail to conform to any exacting standard of effective limitations upon a temporary concentration of powers. Consequently, all these systems are liable to be transformed into absolutist schemes.’’123 Nevertheless, most liberal legalists who wrote about the issue were at pains to justify some sort of temporary concentration of executive power— for lack of a better alternative. Arguments for the abandonment of a strict adherence to constitutional democracy under all circumstances redounded to an essentially realist appreciation of the Weberian idea that ‘‘the rule of law, although devised to eliminate violence and the war of all against all, always stands in need of the instruments of violence in order to assure its own existence.’’124 Yet they were equally at pains to couch this concentration of power in terms consistent with the rule of law ideal. Perhaps above all, the occupation had taught liberal legalists that only under certain conditions could popular sovereignty serve as the basis for a constitutional democracy, and that under extraordinary circumstances—as in its moment of founding—it might be impossible for it to do so.125 Such skepticism about democracy did not stem from doubts about the value of democratic participation. Rather, it grew out of a recognition of the structures required for democracy and one of its key guarantors, the rule of law, to take root. Specifically, the rules necessary for creating a democracy out of non- or antidemocratic conditions would be different from those that would guide an already established democracy.126 At the same time, the liberal legalists had established some of the conceptual and practical means by which the goals that temporary concentrations of power were meant to accomplish could be more carefully scrutinized.

An Occupation and a War Crimes Tribunal

161

Justice at Nuremberg? It was one thing to legitimate departures from a democratically based rule of law in the context of a military occupation of another country. Other kinds of ‘‘crisis’’ conditions, however, elicited a less enthusiastic response for straying from the path of legalism.127 This was true of Roosevelt’s expansive use of domestic emergency powers before the war, and it was true as well of the Nuremberg trials, where the rule-of-law debate continued to play out both within and beyond the pages of academic journals. As with the other two prongs of the German Problem—legalism under Nazism and under the occupation of Germany—the Nuremberg trials both reinforced and challenged the rule of law ideal in ways that reverberated for decades. In particular, the effort to establish ‘‘justice’’ in the wake of a total military defeat, in what has to be considered at least in part a political act, posed the problem of which standards might be used to justify deviation from traditional legal principles in a legal setting. Unless the parameters were carefully laid out, what was necessarily a departure from usual understandings of legality might become ‘‘normal’’ law, or at the very least set a new precedent for acceptable departures from traditional rule-of-law norms under exceptional circumstances. The struggle to apply legal standards in the context of a total military defeat was reflected in the cacophony of legal theories that reigned at Nuremberg. The political theorist and legal scholar Richard Primus is right to assert that ‘‘the propriety of Nuremberg rested on the distinctly nonpositivist theory that some things were simply wrong, whether codified or not, and that justice sometimes calls upon courts to act even when lacking formal legal authorization.’’128 But he is wrong to the extent he, along with Judith Shklar, sees the trials as exemplifying the postwar turn to natural law and away from legal positivism. Positivism was injured but not entirely defeated at Nuremberg. The positivism rejected as a defense at Nuremberg was of the classical sort—the positivism of John Austin, who defined law as nothing more than the command of the sovereign political body that holds the lawmaking power.129 By contrast, the updated positivism of Hans Kelsen was very much on display in the legal discourse about the trial and among the trial lawyers themselves, who consciously drew on the writings and the counsel of several leading legal academics of the time. The Nuremberg trials ended up combining natural law and positivism, using each in an effort to adapt the rule of law to new circumstances in order to achieve substantive justice with a modicum of procedural regularity.

162

Chapter 4

The confusion over legal doctrine at Nuremberg was prefigured in the debates within the United States as to whether to hold war crimes trials for the Nazi leadership in the first place: there was nothing foreordained about the Nuremberg trials. Indeed, all of the major victors, including the United States, considered the summary execution of war criminals as an alternative to holding trials. The sheer problem of deciding whom to execute as much as any moral qualms of whether to do so, helped to dissuade the Allied powers from pursuing this hasty, extralegal course.130 It was, in some ways, quite by accident that the International Military Tribunal (IMT) emerged as the preferred means of exacting justice from the Nazis. However, once it was under way, the democracies—the United States in particular—took the helm and no more mention was made of summary execution.131 Of course, executions with a trial did ensue—and with little debate over this means of killing convicted Nazi war criminals.132 For example, Sheldon Glueck, one of a group of American legal academics who went from being a legalist skeptic to an enthusiast of the trial as the event progressed, failed to mention this aspect of the trial in his newfound encomium.133 Nor did he bother to note that the tribunal was constituted by the victors of World War II and unilaterally imposed on the Germans upon their unconditional surrender.134 The International Military Tribunal was established by the Inter-Allied London Agreement of August 8, 1945. Annexed to this agreement was a charter that laid out the procedures for the international war crimes trials.135 Plans had long been under way—formally, since the Moscow Agreement of 1943 and hinted at as early as the 1941 Atlantic Charter—to punish the Nazis in some manner. Just what form that punishment would take, however, was a matter of considerable dispute both among the Allies and within the United States. The idea of a war crimes tribunal emerged as a mechanism that could both exact vengeance and demonstrate to the Germans, not to say the world, the sober, rational workings of the rule of law by using law to detail the extremes of authoritarian power. The reality was somewhat different. The Nuremberg Charter mandated an international tribunal composed of the four major victorious powers that would sit in judgment of an unspecified number of Nazi leaders and organizations subsequently determined by an indictment issued on October 19, 1945. Three main charges were adduced: crimes against peace, war crimes, and the crimes against

An Occupation and a War Crimes Tribunal

163

humanity. A fourth ‘‘conspiracy’’ charge held to account ‘‘leaders, organizers, instigators and accomplices’’ who planned or conspired to commit any of the other three crimes. The second charge of ‘‘war crimes’’ had been standard fare in international law and involved violations of the ‘‘laws and customs of war.’’ The other two charges were either partially or wholly novel and would prove controversial for a host of contradictory reasons. Among the thorniest of the charges, from the legalists’ point of view, was that of aggressive war because it was by far the most novel. Was it legally right to charge Nazi war criminals with an offense heretofore unknown to international law? Was not one of the virtues of the rule of law its known rules? This phenomenon of unknown rules of law, or ex post facto law, was strictly prohibited in the American constitution but its application in international law had not previously been tested. New Dealers such as Judge Charles Wyzanski could not satisfy themselves that it would be just to prosecute the Nazi leaders for the crime of aggressive war. ‘‘What,’’ he wondered, ‘‘is the basis for asserting so broad a substantive crime exists in international law?’’136 Not surprisingly, American lawyers involved in the tribunal searched fervently for published law (in the form of international agreements, conventions, and treaties) to indicate that a war waged for a purpose other than self-defense was not only an illegal but also a criminal act. Most American lawyers were content to rest their case for the legal prohibition of aggressive war on one of several legal documents, or on a variety of different strategies that downplayed the need for textual precedent. Exhibit A was the Kellogg-Briand Pact of 1928, which had been signed by the Germans and which contained language prohibiting war as ‘‘an instrument of national policy.’’ The pact also stated, rather dramatically, ‘‘The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.’’137 Legalists also cited as precedents for rendering many of the Nazis’ actions criminally illegal the Geneva Protocols, several League of Nation resolutions, and numerous nonaggression treaties. Most of them, however, did not employ the phrase ‘‘aggressive war,’’ and the absence of these magic words undermined the positivists’ case for Nuremberg, to the point that, ironically, only German defendants relied on a purely positivistic interpretation of the law. Hence the charges against the Nazis, the procedures governing the trial,

164

Chapter 4

and the overall justification for the trials raised the question of just what was the relationship between the IMT and the rule of law ideal. One could argue that the IMT upheld the rule of law ideal insofar as it sought justice in a court of law as a way of reconciling a democratic Germany to its authoritarian past, as a form of retributive punishment, and as a deterrent to future atrocities. However, the trials also revealed the limits of legalism because so much new law had to be devised along the way, including the appeal to international criminal law to make the case that war could be judged a criminal offense. The lack of legal precedent for Nuremberg meant that both substantive law and procedural rules would, once again, have to be invented.138 As a result, the liberal lawyers involved in the trial struggled to promote the values of impartiality and procedural fairness, and once again they were forced to confront the limitations of this approach—this time of the ability of the rule of law by itself to deliver justice. Many found themselves arguing against a ‘‘strict interpretation of the letter of the law’’ and too great a fealty to ‘‘technical niceties,’’ such as the prohibition on ex post facto law, due process, and judicial integrity.139 At the same time, they held up the trials as exemplary of the rule of law, and this, among other difficulties, would deeply trouble the German legalists. By its very existence, the IMT posed the conundrum of how much coercion a legal institution could tolerate and still produce a recognizably just— that is, not overly partial—outcome. To be sure, all law in the last instance rests on force, but these trials went beyond the usual coercion of the law. The tribunal, the charges, the types of punishment, and the rules of procedure were unilaterally and unconditionally imposed on the German defendants by the Allied prosecutors. All of these aspects of the process were constructed for this setting in particular rather than having been drawn from a settled body of law or authoritative legal texts. ‘‘The legal basis for the trial has not been satisfactorily explained,’’ complained Leo Gross, an international legal scholar who had studied under Kelsen. ‘‘International tribunals are established by agreement of the states concerned. In the case of the Nuremberg Tribunal Germany did not consent to its establishment nor to the law to be applied by it.’’140 Yet most legal scholars involved in the trials reasoned that Germany either had effectively consented through its unconditional surrender to all forms of punishment within the bounds, broadly speaking, of international law, or, more radically, that the Four Powers had assumed the position of the German sovereign. In this view, the IMT was acting as a German court on German soil in lieu of Germany

An Occupation and a War Crimes Tribunal

165

trying its own war criminals, the traditional approach to the prosecution of war crimes under international law.141 Most of the American lawyers and legal academics involved in the trial ended up taking a leap of faith. They argued that even if positive international law had not made aggressive war punishable as a crime, the Nazis should have known that what they were doing violated international law. Their actions contravened any conceivable civilized standard of legality or morality. In this regard, the lawyers at Nuremberg gave up any pretension to legal positivism and embraced a substantive and universal view of justice as the predicate for the trials. They rationalized the criminalization of the Nazis’ war in one of two ways: according to a higher law—a fundamental and universally accepted morality—that forbade the Nazis’ atrocities, or as an abuse of an unwritten but customary norm of international law. In neither instance did they convince most German legalists that the trials were legitimate as a legal institution. Positivists such as Kelsen did become convinced. ‘‘It is a fundamental principle of general international law that war is permitted only as a reaction against a wrong suffered—that is to say, as a sanction—and that any war which has not this character is a delict, i.e. a violation of international law.’’ Even Kelsen, however, acknowledged that this was a just war (natural law) argument and that most positivists, as a general matter, ‘‘do not recognize the principle of just war as a rule of positive law.’’142 If the international community lacked the necessary rules, at least there were ‘‘standards.’’ It is worth remembering that these sorts of ill-defined ‘‘standards’’ as opposed to formal rules constituted precisely the type of vague gestures toward legality that the German e´migre´s condemned in their assessments of Nazi law. For Glueck, Kelsen, and others, the international pacts of the twentieth century had established a conventional norm of just war well beyond its origins in natural law. Indeed, as the trial progressed, skeptics such as Judge Wyzanski concluded that if the legal grounds of the trials remained shaky, the grounds of justice did not, and these must have priority. ‘‘Regardless of its provability,’’ Wyzanski stated, ‘‘the scale of values which now seems to me sound puts repugnance to retroactive legislation in a less important place than repugnance to leaving unpunished serious violations of standards universally recognized by the international community and embodied in treaties and like international obligations.’’143 In Wyzanski’s revisionist view, arbitrary authority had to be warded off at all costs. ‘‘The reasons for my change are that the failure of the international community

166

Chapter 4

to attach the criminal label to such universally condemned conduct would be more likely to promote arbitrary and discriminatory action by public authorities and to undermine confidence in the proposition that international agreements are made to be kept, than the failure of the international community to abide by the maxim that no act can be punished as a crime unless there was in advance of the act a specific criminal law.’’144 The rule of law’s concern with the past had to be jettisoned in favor of laying down new rules for the future. But what had become of the rule of law ideal under this view? A second aspect of the trials that confounded any straightforward legalistic interpretation was the tribunal’s insistence that the Nazi defendants bore a responsibility not to have committed the acts with which they had been charged. Individuals, in other words, ought to be considered directly responsible, morally and legally, to the international community. However, the idea that individuals were legally responsible not only to their own states but also to the ‘‘community of nations’’ was untested territory in international law, which had traditionally taken states alone to be subject to international law. The tribunal held, and most academic lawyers agreed, that the act of state doctrine, in which individuals could not be held personally responsible for actions taken in the international realm, was a vestige of nineteenth-century nationalism and imperialism that no longer applied in a globalizing and profoundly unstable world. Only the punishment of individuals could serve as a deterrent to crimes against humanity as well as undermine the notion that the Germans were collectively responsible for the war. Individual punishment in the context of a war crimes trial presumed a new conception of individual responsibility. If individuals were to be expected to obey international as well as national law, this meant the new legal responsibilities had to be worked out by the IMT with the help of legal academics.145 When national law and international law or norms conflicted, to whom was the individual ultimately accountable? The tribunal, following the lead of most (liberal) legal scholars of the day, held that the military official committing an act of war on behalf of a belligerent could not claim a defense of superior orders for an act in which he knowingly violated international law. Many of the accused did use this defense, albeit unsuccessfully. What made the act unlawful was not necessarily the transgression of a particular positive law; the violation could be of an international legal

An Occupation and a War Crimes Tribunal

167

norm or custom, about which the military officer was expected to be aware. This, for example, was Glueck’s position. As with the broader undertaking of waging an aggressive war, morally reprehensible acts that offended the community of nations would not be tolerated by international criminal law, as a matter of justice. But did this individual accountability to the community of nations leave any room for the defense of superior orders? Most American lawyers involved in the trial thought not. Kelsen and the German legalists, with a more variegated view of totalitarianism and legality, disagreed. Kelsen reasoned that the military operated according to the dictates of command and control, where individual choice did not exist. ‘‘Discipline is possible only on the basis of unconditional obedience of the subordinate to the superior, and the obedience of the subordinate has its necessary complement in the exclusive responsibility of the superior.’’ To support his contention, Kelsen cited the Basic Field Manual (FM 27–10) used by the U.S. armed forces.146 Complicating matters further, argued Kelsen, was the fact that, under much national law, carrying out a legal order could never constitute a criminal offense. According to Kelsen, rarely was a command that emanated from a government official or from a person or entity authorized by the government void ab initio, illegal as such.147 The proposition that the commands of government officials were, by definition, legal reintroduced the problem of the status of the rule of law in Nazi Germany. Not surprisingly, Kelsen sided with those who believed that a form of legality existed under Nazism. Kelsen noted that ‘‘the legal power conferred by national law and, in particular, by the law of autocratic States like Nazi Germany, upon government—and that means upon the Head of the State as commander-in-chief of the armed forces with respect to the conduct of war—is almost unlimited.’’148 Kelsen concluded that ‘‘the argument of illegality of the command as justification for repudiating the plea of superior command is practically restricted to cases of commands issued by relatively subordinate organs without authorization on the part of their government.’’149 The suggestion was that orders by Nazi leaders to commit all manner of heinous acts were legal commands of a sovereign state. Kelsen’s solution was that an international military tribunal would act as a German court. ‘‘After having decided that a State has violated international law, the court may at the request of the injured State, open a procedure against the individual who, as organ of the guilty State, must be held

168

Chapter 4

responsible for the latter’s violation of the law.’’150 The ‘‘German’’ court would try state officials as representatives of a guilty state; the individual’s guilt was an instance of the state’s criminal acts. By contrast, the American lawyers at Nuremberg reasoned that individuals could and should be responsible for their own actions and that with crimes of the magnitude of those committed by the Nazis, all individuals would have known that they were acting illegally according to any standard Western conception of criminal law.151 This determination prompted a discussion of the conditions under which moral choices could be made and obviated the traditional plea of superior orders found throughout Western legal systems, not least in American military manuals. There was no precedent in international law for a rejection of the plea of superior orders, but it seemed the most just approach to the problem of assigning responsibility to individuals for the Nazis’ crimes. In effect, the tribunal had proclaimed that in the context of war individuals have an obligation to do what is right, not necessarily what is legal. These two duties might not always converge, a tension the philosopher John Rawls would explore in his writings of the 1960s. Yet by following this course, the Allied powers circumvented the issue of the legality of the Nazi regime. The tribunal never considered the question of whether the commands that the Nazis followed were illegal or not. This could be elided in a trial based on international law; but when it came to the thousands of domestic trials for ‘‘crimes’’ committed under Nazi law, the matter was so vexed that it became the subject of a famous debate in the Harvard Law Review between two of the leading legal minds of midcentury Anglo-American jurisprudence, H. L. A. Hart and Lon Fuller.152 As the German legalists cared deeply about the legality of the Nazi regime since for them it raised the issue of the relationship between law and democracy, one of the issues about which they were most exercised was that of individual responsibility in a bureaucratic totalitarian society. The other was the broader matter of whether the IMT was an effort to turn what was in fact a political action into a legal one. Neumann, while working for the OSS during the war, was so worried about the legitimacy of a war crimes trial imposed by the victors on the vanquished that he proposed that an inter-Allied or an international political body assume the task of punishing Axis war criminals rather than a legal tribunal. A political entity would also avoid having to apply traditional legal norms to a totalitarian society or to make up new law to compensate for the obvious gaps between a rationallegal system and the structure of Nazi ‘‘legality.’’153 Ironically, having lost

An Occupation and a War Crimes Tribunal

169

his bid to try the Nazis politically rather than legally, Neumann ended up helping to draft the charges on which the Nuremberg defendants were indicted. Neumann began this research in Washington, D.C., and continued it during his brief stint as a London-based OSS adviser to the tribunal specializing in war crimes research.154 Neumann ended up unhappy with his contribution, or lack thereof, having failed to convince chief prosecutor Robert Jackson and his team that German industrialists were integral to certain of the war crimes at issue in the trials and should be tried along with the other perpetrators.155 One reason the legal basis for the trials was never made clear was in all likelihood because each possibility on its own—invented positive law, international customary law, and natural law—seemed weak. Not only was the lack of a coherent legal doctrine damaging to the U.S. image in the world and to the future prospects of international criminal law, it also caused resentment in Germany toward the U.S. occupiers, according to some German legalists who served as advisers to the military government. As Friedmann explained, ‘‘The moral authority of the Nuerenberg judgments is . . . weakened, not strengthened, by the dual reliance on the positive law of the Nuerenberg Charter . . . and on the far more dubious assertion that they were applying established international law in the cases before them. The claim of the judgments to moral authority would be greater if they had frankly acknowledged either that they were acting under the positive law binding upon them, namely the Nuerenberg (or London) Charter, or that they were making new law in the name of the articulate conscience of humanity.’’156 Another difficulty was that the argument of necessity that the Americans used to justify coercive acts in occupied Germany was rejected by the IMT as morally flabby and legally untenable for the accused Nazi war criminals. Other German legalists complained that with so much made-up law the trials would inevitably be stamped with the label of victor’s justice. There was a plausible legal argument ‘‘for punishment of National Socialist leaders for the crime of waging an aggressive war,’’ wrote Max Rheinstein, who spent a year with the Legal Division alongside Loewenstein. But ‘‘in the eyes of laymen, and of Germans in particular, Nuremberg judgments appear to be based upon an ex post facto law,’’ an approach that had come to infect the justice system set up by the occupation government, despite the Americans’ initial reluctance to apply this principle to domestic German law. According to Rheinstein, ‘‘the masses cynically state that Nuremberg and

170

Chapter 4

its aftermath are clear proof that right is nothing but might and law nothing but the command of the victor.’’157 There were indeed good political reasons for punishing those who waged aggressive war, Rheinstein insisted. ‘‘But there are also weighty political argument against nipping in the bud the promising beginnings of a revival of the feeling for law in a country which, whatever plans one may hold today [in 1947], will one day again occupy an influential place in the world.’’158 The ‘‘pompous and ambitious’’ Nuremberg trials, in other words, undermined the ability of the military government and the Germans themselves to commit to the rule of law ideal.159 As with the application of international law, none of the German legalists thought the traditional Western approach to individual responsibility under criminal law could be applied to the totalitarian Nazi regime. As one scholar has recently pointed out, to do would inevitably expose ‘‘the disjunction between the idiom of law and the facts of bureaucratic crimes.’’160 Yet the writings of the German e´migre´s who worked at the OSS late in the war may well have helped the Nuremberg lawyers to figure out a way around the plea of superior orders, even if that was not exactly what the e´migre´s sought.161 As Neumann, Kirchheimer, and Herz predicted, the Nazis often invoked variations of a necessity defense—either military necessity or the necessity of following a command, though such a defense came to naught at the trials of leading Nazis. Perhaps the prosecution took Neumann’s advice and applied the criterion of whether the accused war criminal had voluntarily joined the Nazi organization, such as the SS, carrying out the crimes. However, this could work only with high-level officials, and it certainly would not extend in every case to the conspiracy charge upon which the IMT also relied.162 Whatever their influence on the Nuremberg charter and courtroom strategy may have been, Neumann, and the German legalists generally, had a much more nuanced view of criminal responsibility for war crimes than the blanket rejection of the plea of superior orders adopted by the tribunal. As Neumann wrote in an OSS memorandum, ‘‘Since the authoritarian structure of the Nazi regime makes individual resistance against orders more dangerous and consequently less to be expected than elsewhere a general prohibition of the plea [of superior orders] does not seem warranted. The individual members of any army firing-squad detailed to shoot hostages may very well risk his life if he refuses to obey.’’163 Neumann argued that the actual perpetrator of the crime might not have as much

An Occupation and a War Crimes Tribunal

171

culpability as the person or persons who ordered it in a system where criminal behavior is organized in a bureaucratic hierarchy under the principle of an unbroken chain of command. Hannah Arendt’s controversial study of the Eichmann trial featured a similar analysis. Arendt contended that ‘‘the fact of ‘superior orders,’ even when their unlawfulness is ‘manifest’ can severely disturb the normal working of a man’s conscience.’’164 The discussion about the responsibility of an individual in a totalitarian society rendered problematic the attempt by the Americans to apply international law for the first time to individual human rights, on the one hand, and to the duty to obey laws beyond the borders of one’s own state, on the other. Yet an even larger issue was at stake, as John Rawls would soon point out: that of individual autonomy and hence responsibility in a bureaucratic state of any kind. The same administrative state that expanded individual freedom by increasing security and providing a wide array of services, also restricted the kinds of choices people could make, and not just with respect to private property. As Neumann explained, reflecting on what international law could realistically hope to achieve in a world of modern states, ‘‘The complexity of this problem can only be fully realized if we understand the universal trend toward bureaucratization of society. Criminal responsibility can ordinarily be assumed only where the individual has a choice whether or not to commit an act on orders of superiors. But ever larger activities in modern society—regardless of its political structure—do indeed become bureaucratic and choices tend to disappear.’’165 In the administrative state, the German e´migre´s determined, individual autonomy, broad discretion, and restricted choice sat uneasily together. There would be no political body to handle the punishment of the Nazis. Nor did the Allies issue a ‘‘political statement establishing the principle of functional responsibility of superiors and delimiting the scope of application of the plea ‘respondeat superior.’ ’’166 Still, Neumann, Kirchheimer, and Herz, working under the aegis of the OSS in Washington, did influence the approach to individual responsibility for the commission of crimes ordered by Nazi superiors. The idea of bureaucratic automatons carrying out orders they could not refuse aided in the prosecution of higher-level officials. ‘‘The wide and indefinite realm of discretion given to each leader,’’ Kirchheimer and Herz noted, placed in their hands tremendous responsibility for the actions of everyone directly and indirectly under their command.167 This issue of the duty to obey law of any kind would become an important theme in intellectual and political discourse of the

172

Chapter 4

1950s and 1960s with the rise of civil disobedience. In fact, the 1940s settled little about the rule of law ideal other than that it was an important and vexed issue in a bureaucratic state. Even as the American state along with international institutions turned increasingly to the rhetoric of rights and to judicial enforcement of those rights, the consistent application of legal norms and procedures that defined the rule of law ideal remained elusive as they continued to compete with administrative imperatives, emergency politics, and discriminatory practices.

Legacies Despite many opportunities, how to determine when democracy and justice were fundamentally under threat and who gets to make that determination were never fully worked out in the 1940s, either by academics or by government officials. Under the rule of law ideal some restraint, even in emergencies, was called for. But how much and under what circumstances? The German e´migre´s offered some intriguing answers, but they never fully resolved these tensions. During the Cold War justifications for rule by fiat reappeared to rationalize a full-blown national security state in the name of preserving democracy from the totalitarian threat.168 Yet to the extent that Cold War ideologists applied rationales similar to those who had mobilized the concept of constitutional dictatorship, it was a misapplication. Democratic institutions still existed in the United States, making the circumstances far less extraordinary than those of a former totalitarian dictatorship under military occupation. Carl Friedrich, often depicted as a quintessential Cold War theorist, fell prey to the sort of thinking that posited a permanent state of emergency before managing to temper his anxieties about the threats of the newest totalitarian menace. In a widely read political science textbook published in 1950, Friedrich wrote, ‘‘Antidemocratic forces, whether Communist or Fascist, have created in the past and continue to create a state of universal emergency throughout the world community by their appeal to force.’’ In response, the policy of coercive containment must be applied in order to ‘‘re-establish constitutionalism.’’ Yet Friedrich continued to believe that although one could establish the conditions for democracy from the outside, one could not democratize another society by force. ‘‘It was the contention of the writer,’’ he noted, ruefully recalling his writings on World War II, ‘‘that it would have been wiser to restrict military government

An Occupation and a War Crimes Tribunal

173

objectives to the establishment of government according to law in the conquered territories.’’169 Two commitments allowed Friedrich to maintain distance from the Cold warriors. The first was his loyalty to constitutional democracy in deed and not just in name. More important was his conception of constitutional democracy as not simply a concatenation of formal apparatuses but also ‘‘a great moral and existential phenomenon,’’ as the political theorist George Kateb describes this view.170 Friedrich called this normative dimension of constitutional democracy ‘‘a constitutional morality, the notion that a constitution must look after the welfare of the people who live under it. It was this norm—and only this norm—that could legitimate the imposition of a constitutional order via extraconstitutional means. For this norm to function properly, moreover, required a robust notion of democracy that depended upon ‘‘an alert people . . . a real constituent power.’’171 How these would come about, Friedrich could not say. But Rawls would try to tackle this very problem. While most liberal thinkers did not pay much attention to the importance of marrying the rule of law to democratic participation in the 1950s, some pushed to use law to rein in the administrative state—a state that turned increasingly to repressive police action in its anticommunist crusade. In the end, a rather tepid legalism won the day in the decades following World War II, beginning, as we have seen, with the Administrative Procedure Act, which subjected bureaucratic decision making to legal hearings and the requirements of publicity. In addition, the federal courts became more active in securing individual rights and civil liberties.172 However, it would be a mistake to see the liberalism of this period as focusing solely on individual rights and proceduralism. The suppression of these rights was also being justified in liberal terms, as were other repressive activities by the state. Second, the sympathetic critics of liberalism showed how heterogeneous and complex liberalism continued to be, even at the height of the putative liberal consensus after World War II. One of their most important contributions was to demonstrate that fair and consistent procedures were not neutral arbiters; they helped promote individual freedom and equality for those who would otherwise be shut out of a bureaucratic policymaking process. If anything, it was World War II, not the Cold War, that produced a moment of reckoning for American statist liberalism.173 But the legacy of that reckoning was decidedly mixed. It encouraged a greater appreciation

174

Chapter 4

of the justice and democracy that law could help establish. Yet it also fueled arguments for emergency governance with protections for civil liberties only at the margins, an interventionist foreign policy, and a bloated public bureaucracy that operated all too often in the interstices of the law. Most, but not all, liberal intellectuals accepted these arguments on the grounds of necessity. But issues pertaining to the legitimacy of the state’s reliance upon extralegal powers and administrative fiat had not gone away. Nor had critical liberals’ efforts to wrestle with them.

Chapter 5

Individual Autonomy and the Modern American State The Philosophy of John Rawls

Most liberal thinkers turned away from the state after World War II. Either they were put off from state power by the persistence of totalitarianism in the guise of Soviet communism, or they focused their anxieties on the perceived psychological and cultural deficiencies of Americans.1 With their emphasis on the weakness of the American mind, the thinness of American civil society, and the poverty of American political culture, liberal intellectuals ignored the state as long as it did not turn overly repressive in the name of national security or unnecessarily aggressive in the name of controlling capitalism.2 They were institutional naysayers, critics of American liberalism who did not think that solutions to the nation’s problems could be found in its political institutions or mechanisms of governance. All firmly believed they knew what was wrong with what Lionel Trilling blithely called ‘‘America’s sole intellectual tradition,’’ but they did little to reconceptualize it.3 One of the few exceptions to the ‘‘statelessness’’ of postwar American liberalism was the moral and political philosopher John Rawls.4 Rawls is best known for his philosophical contributions to the concept of justice in the 1970s, not for developing a critique of American political institutions in the postwar period. Yet if one situates Rawls in a broader historical and intellectual context, his revival of social contract theory in the 1950s may also be understood as a fundamental rethinking of the liberal administrative state.5 With a newly imagined social contract, Rawls sought to overcome

176

Chapter 5

the legitimation issues that had swirled around the modern American state for decades by placing it on a more secure ethical footing.6 Indeed, Rawls’s social contract theory accomplished what other statist liberals been either unable or unwilling to establish: clear and systematic ethical criteria by which to judge and ultimately to change unjust political institutions. Although he did not, as a philosopher of ideal theory, name any particular state, he made clear that he believed there were numerous institutions in the United States that were ‘‘riddled with grave injustices.’’7 Moreover, the fact that he chose justice as his central concept and social contract theory as the vehicle through which to elaborate it suggests a thinker who was very much interested in devising a compelling moral basis for judging social and political institutions in order to improve them.8 As the political theorist Philip Pettit reminds us, ‘‘The idea of the contract is not to legitimate what exists but to give us a means of working out what ought to exist.’’9 Rawls’s emphasis on the need for consent to coercive state authority and the importance of formal justice, along with his refusal to reduce institutional requisites and policy choices to technical problems, point to a theory shaped in part by the legitimacy issues generated by administrative governance in a constitutional democracy. Throughout his writings, Rawls addressed long-standing concerns about informal rule and emergency politics that were central to the administrative state and to liberals’ criticisms of it. These included the growth of discretionary authority, the erosion of legislative dominance, the threats to the rule of law ideal, and the mounting obstacles to democratic participation. In constitutional democracies, justice had long been considered a central component of institutional legitimacy; for Rawls it functioned as a regulative ideal for governing political and social institutions in a liberal democratic administrative state.10 Rawls’s theoretical innovation—the first inklings of which appeared in 1950 with the broad outlines of the theory apparent by the mid-1950s— dwarfed the efforts of other sympathetic critics of liberalism and thus deserves extensive treatment.11 Rawls was principally a thinker in and of the 1940s and 1950s. Hence one must try to explain why he felt compelled to offer a new basis for judging the legitimacy of the American political regime at that time. A careful reading of his texts leading up to A Theory of Justice, supplemented by unpublished lecture notes and other archival material, reveals a broad range of influences on Rawls’s thinking that might not be immediately apparent from his texts.12 In contextual terms, of greatest importance for excavating his ideas about the state are: the rule-of-law

Individual Autonomy and the Modern American State

177

debate of the 1940s, including the challenge of Nazism to the meaning of legality; the workings of the administrative state and the role of utilitarian reasoning in the formation of policy decisions; and the various forms of conscientious resistance to perceived injustices by social movements of the 1960s. The Cold War, a politically constraining and intellectually normalizing force, scarcely existed as an explicit reference point for Rawls, although he did not escape its clutches entirely.13 Intellectually, Rawls’s project drew on a variant of rational-choice theory called game theory, a method well suited to reasoning under crisis conditions, and a ‘‘normative political philosophy’’ influenced by World War II and Nazism and leavened by moral psychology.14 The first helps to explain his emphasis on rationality and his proceduralism; the second his concern with the morally autonomous citizen, the rule of law ideal, and democratic participation. Understood in this broader context, Rawls’s early work sheds light not only on his own project, but also on a critical moment in the construction of postwar American liberalism in which different intellectual paradigms competed for dominance within the liberal frame. Whereas Cold War liberalism emphasized the perniciousness of ‘‘outside’’ influences, Rawls’s political philosophy was essentially a form of immanent critique. From its earliest iterations, Rawls’s social contract theory featured a hypothetical decision procedure aimed at reconstructing the ideal circumstances under which rational and equal persons could agree upon principles of justice to structure the institutions of their society and to serve as a test of their legitimacy. This procedure mimicked ‘‘the constraints of having a morality’’ and it assumed that the reasoning it modeled would be about a liberal democratic society, though Rawls in his early essays did not say this explicitly.15 As Rawls described the procedure, ‘‘Existing institutions are to be judged in the light of the conception [of an ideally just society] and held to be unjust to the extent that they depart from it without sufficient reason.’’16 General moral principles applicable to all would necessarily result from this decision procedure, itself mutually agreed upon, since ‘‘no one [could] be given the opportunity to tailor the canons of a legitimate complaint to fit his own special condition and then to discard them when they no longer suit his purpose.’’17 Rawls meant for this injunction to model how equal and rational citizens would reason about the bases for accepting or criticizing a democratic society’s institutions. However, this stricture also reveals the kinds of injustices Rawls believed would afflict a society of free and equal citizens who voluntarily placed themselves under coercive state rule:

178

Chapter 5

arbitrary decision making, a lack of consistent and impartially applied rules, and an unequal basis for consenting to state power—all hallmarks of administrative governance and all sources of tension within statist liberalism. There is no doubt that Rawls wanted the citizens of his ideal society to think critically about the institutions under which they had agreed to live. Presaging his fully developed theory, Rawls argued in his essays of the 1950s and 1960s that a society is just if all rational and ‘‘mutually self-interested’’ adult citizens could be said to have hypothetically agreed upon principles of justice that inform a society’s institutions. This was a way of saying that citizens had to be able to sanction the basic arrangements of their actually existing society or fundamentally agree on how to change them. These principles constituted a reliable test of legitimacy in a constitutional democracy because they could be broadly agreed upon by rational citizens. Here was a systematic theory for discerning the justice of the modern liberal state in which the citizens were the final arbiters of right. For this, not only were implicit principles of justice needed but also a transparent government, access to the political process, and responsive institutions, precisely those aspects of governance that were threatened by administrative hegemony. With its principles of justice as fairness, Rawls’s theory provided an intellectual framework for the ‘‘moral order’’ that President Franklin D. Roosevelt called for in his Four Freedoms speech of 1941.18 Roosevelt soon abandoned that ‘‘order’’ amid the exigencies of war, internal political divisions, and his own apparent ambivalence about what direction postwar reconstruction should take.19 Although it met with worldwide approbation, Roosevelt’s address failed to reconcile the need to protect and expand individual rights and liberties in an administrative state that often undermined those very ideals. By contrast, Rawls’s moral order carved out a middle way between the moral absolutism and pragmatic relativism that dominated postwar intellectual life in the United States.20 Rawls’s principles of justice relied not on a transcendent truth or empirical evidence but on the implicit moral views of ‘‘free and rational persons,’’ who sought a fair distribution of and equal access to political power, rights, liberties, opportunities, and wealth.21 By appealing to collectively agreed-upon principles as the guarantor of legitimacy in a constitutional democracy, Rawls stressed the importance of democratic political institutions while also exhibiting an unwillingness to rely exclusively on institutions, rules, or positive law to eliminate injustices

Individual Autonomy and the Modern American State

179

and restrict arbitrary power. A basic moral sensibility was also required.22 His critical liberal predecessors had seen the need as well for an ethical yardstick by which to judge institutions—Carl Friedrich’s moral constitutionalism comes to mind. Rawls, however, managed to embed a minimalist moral requirement in the doctrine of consent. This allowed him to recapture the primacy of individual autonomy and mutual agreement (‘‘the public interest’’) that had been degraded by the arbitrary exercise of power and bureaucratic excesses of the modern liberal state. While most statist liberals sought recourse in expert decision making or pluralistic bargaining as a basis to legitimate political institutions, Rawls reached for moral principles in an attempt to reconcile ‘‘justice’’ and ‘‘efficiency’’—two values that often clashed as the administrative state grew larger and less accountable to the average citizen, to democratic processes, and to legal norms. A consent-based theory, as a handful of New Deal era critical liberals had noticed, inherently challenged rule by expertise and the erosion of legislative authority by administrative decision making and executive fiat. In Rawls’s ideal world, there would be no self-proclaimed authority, whether based on race or history, or corrupt administrators, to dictate the rights and duties of individuals or the common good of society: ‘‘We refuse to be intimidated by power; the collective sense of right of reasonable men is the bar at which everything is to be judged,’’ Rawls wrote in his 1950 dissertation.23 The project of grounding ethics in rational deliberation and individual judgment, as against ‘‘authoritarian’’ and ‘‘positivist’’ views of morality— neither of which took moral principles seriously—was vital to the future of democratic governance. For without an appeal to reason in the ordering of public practices and institutions, ‘‘the result is to encourage in social life just those elements which, in democratic countries, we have tried to get rid of: the authoritarian, the arbitrary and the irrational.’’24 Collectively sanctioned moral principles constrained state power at the same time as they legitimated it. No institution is infallible and thus all uses of power, but especially coercive state power, must be regularly reevaluated by reason. Reason is not infallible either; however by its nature it can be adjusted when proven wrong by experience or by further reasoning. With a background in theology—he once considered becoming an Episcopal priest25 —and a passion for moral philosophy, Rawls tended to conceive of political institutions abstractly through the lens of ideal theory. Under ideal circumstances where rational individuals were unconstrained

180

Chapter 5

by their interests in society, which principles of justice would they choose and what would ensure that citizens would be motivated to act upon them in a constitutional democracy? By utilizing ideal theory, Rawls believed he could derive principles of justice that would best match citizens’ ‘‘considered judgments,’’ by which he meant their commonsense ideas subjected to reason.26 Ideal theory allowed for the derivation of an impartial ethical standard for evaluating the legitimacy of social and political institutions.27 Rawls’s essays became less insular and more politically engaged over time. While his more technical essays of the early 1950s were influential among philosophers, the published essay that broke this mold and interested both political philosophers and theorists was ‘‘Justice as Fairness’’ (1957 and 1958), ‘‘the real foundation on which all the rest of Rawls’ theory is constructed.’’28 In this essay, Rawls formulated the two principles of justice for which is theory is best known. The first principle called for the ‘‘greatest possible’’ liberty for everyone living in a society, consistent with equal liberties for all; the second principle permitted social and economic inequalities—in the distribution of ‘‘benefits and burdens’’ of society—only if true equality of opportunity existed and only insofar as inequalities were meant to ‘‘work out for everyone’s advantage.’’29 (Significantly, in 1967, Rawls changed the phrase ‘‘everyone’s advantage’’ to ‘‘the least advantaged.’’)30 Otherwise, inequalities were ‘‘arbitrary,’’ and therefore unjust. Finally, Rawls suggested that equal liberties of citizens were the most fundamental of rights, ‘‘first and primary,’’ and had to be realized before departures, or allowable inequalities, could be countenanced.31 As suggested above, to demonstrate that these were the principles that equal and rational citizens would choose under ideal circumstances and thus should choose in the nonideal world, Rawls set up an elaborately rigged decision procedure. The conditions for a fair deliberative procedure were that the proposed principles be applicable to all rational adults, that they be ‘‘binding on future occasions’’ and generations, and that the people proposing them were effectively equal in their ‘‘needs and interests . . . power and ability’’ such that ‘‘in normal circumstances none is able to dominate the others.’’32 The contracting citizens were mutually disinterested because they were ignorant of the particulars of their future and hence were agreeing to be bound by principles without knowing specifically how they would shape their lives.33 Finally, Rawls’s citizens were risk averse. As Rawls would later clarify, citizens would choose the principles they believed would lead to the least worst outcome for themselves given that everyone else would be

Individual Autonomy and the Modern American State

181

similarly constrained.34 Properly constructed, the procedure yielded a test of legitimacy in which an ‘‘institution is just or fair . . . when it satisfies the principles which those who participate in it could propose to one another for mutual acceptance from an original position of equal liberty.’’35 This test would rule out many of the standard operating procedures of the American administrative state. These included the privileging of administrative rule making over legislative lawmaking, the flouting of legal norms, the conducting of public business in secrecy, the lack of equal access to political participation, and the creation of instability by coercive institutions. More than his critical statist predecessors, Rawls emphasized the importance of the legislature in determining the rules and policies that would guide citizens in a constitutional democracy. ‘‘This [ideal] representative body has more than a purely advisory capacity. It is a legislature with lawmaking powers and not simply a forum of delegates from various sectors of society to which the executive explains its actions and discerns the movement of public sentiment.’’36 However important the legislature may have been to other social contract theories (principally Locke’s), this particular portrait well describes what had become of Congress in the administrative state. Rawls’s reconstruction of statist liberalism also aimed to stamp out the embers of a morally thin utilitarianism that had more than an academic influence. One might even think of Rawls’s appraisal of utilitarianism as a rough stand-in for a critique of the administrative state. Although he aimed his philosophical guns at the ‘‘classical utilitarians’’—Jeremy Bentham, John Stuart Mill, and Henry Sidgwick—many of his criticisms applied to the contemporary forms of utilitarian thought that still influenced statist liberalism. Utilitarianism’s ‘‘enormous influence . . . continues in some form to the present day,’’ through its impact on social and political theory, political economy, and economics.37 Under utilitarianism, concocting the principles of justice became merely one more ‘‘higher order administrative decision’’ determined by calculating elites—in a word, a cost-benefit analysis of individuals’ preferences.38 In the real world, this understanding of how justice ought to be determined coexisted uneasily with the liberal state’s growing commitment to equal rights. Utilitarianism’s emphasis on maximizing overall satisfaction was not only elitist and potentially unfair, it undermined any principled basis by which to judge political institutions. It reduced justice to ‘‘a kind of efficiency,’’ by seeking ‘‘the most efficient design of institutions’’ for increasing

182

Chapter 5

the general welfare.39 Justice became a problem of administration. Individual rights, democratic participation, the rule of law all may be sacrificed under the utilitarian mantle, since in aggregating individual preferences, some individuals may be made to give up their liberties for the sake of others adjudged to contribute more to society’s well-being.40 Moreover, this top-down meting out of justice substituted an external control for the collective self-imposition of just rules: ‘‘The (ideal) legislator . . . is conceived as adjusting the rules of the system from the center so as to maximize the value of the social utility function.’’41 Finally, because utilitarianism merely aggregated individual preferences, viewing people as isolated nomads, not ‘‘being related in any way,’’ it could not account for or strengthen social cooperation.42 Since it ignored interpersonal relations, utilitarianism, paradoxically, devalued not only individuals but also the common good, which, along with individual liberty and equality, was a necessary ingredient for a just society. While he is not often thought of as having interests beyond philosophy, that was not how Rawls pictured himself. From his graduate days at Princeton in the late 1940s, Rawls hoped his philosophical work would contribute to democratic theory.43 Rawls believed it possible to have both a legitimate constitutional democracy that protected individual rights and liberties and a legitimate interventionist state that distributed resources fairly, both a coercive political order and one centered on consent. He set out to prove this through the device of the social contract. Relying less on institutional adjustments than his critical liberal predecessors, Rawls returned to the individual as an important check on the excesses of the state. This autonomous individual was equipped—both by nature and institutions—to be his or her own judge of a society’s political and social arrangements. Rawls granted a kind of participation by veto. Only in this way could democratic accountability and respect for the individual exist within the confines of the ‘‘discretionary state.’’44

Analyzing the Political, Politicizing the Analytical: Philosophy in the 1950s Contextualizing Rawls is a difficult task; he did not much discuss what influenced him. Moreover, despite Rawls’s interest in actually existing politics, actually existing politics was not much interested in him. Rawls was virtually unknown outside a small group of philosophers, political theorists,

Individual Autonomy and the Modern American State

183

and economists in the 1950s and 1960s, and even after the publication of A Theory of Justice in 1971, Rawls never became a widely known outside of academia. Interestingly, over the past fifteen years or so Rawls’s philosophy has become more popular not only in the United States, but throughout the world.45 Although he was a rare constructive critic of statist liberalism in the 1950s, Rawls’s return to questions of justice was not unique among liberals. A renewed emphasis on moral principle and social justice appeared among a diverse cast of characters who ranged from Martin Luther King, Jr., to the political and legal scholars Hannah Arendt and Lon Fuller, to a nascent international movement for human rights. These emphases came in direct response to the war, totalitarianism in general, and Nazism in particular.46 In Rawls’s case, a few biographical details are directly relevant to his project. Rawls was born in Baltimore in 1921 to a well-to-do family. His mother, Anna Abele Stump Rawls, who along with Rawls’s father was a politically active liberal Democrat, was from a German family.47 After attending Princeton University during the early years of the war (1939–43) and earning a bachelor’s in philosophy, Rawls enlisted in the U.S. Army as an infantryman and soon found himself as a radio operator in the Pacific front. Rawls was strongly moved by World War II, not just personally but intellectually. In his one overtly political article, Rawls condemned the U.S. bombing of Hiroshima, the ruins of which he had personally witnessed in August 1945 as he traveled by train through the city.48 Yet he reserved his greatest criticism for Nazism and the ‘‘enormous and uncalculable moral and political evil it represented for civilized society.’’49 He seemed deeply conflicted about his nearly three-year stint in the military, an experience about which he was ‘‘neither proud nor ashamed.’’ But he did insist that ‘‘the war against the Nazis was certainly a just war . . . [and] the war against Japan was too, but less obviously so.’’50 Even considering these powerful contextual forces, Rawls’s effort was surely remarkable for the scope of his theory. But it was perhaps even more remarkable because his ethical salvo was fired from a field—analytic philosophy—that had all but abandoned traditional moral philosophy, in which ethical principles played a central role as guides for rational and moral behavior.51 Analytic philosophy reigned at Princeton when Rawls was a graduate student there in the late 1940s. To an even greater extent, it suffused the study of philosophy at Oxford, where Rawls spent the academic year 1952–53. When Rawls returned from England he became a professor,

184

Chapter 5

first at Cornell, then at MIT, and later at Harvard, where he remained for the rest of his career. Wherever he turned, it was apparent that AngloAmerican philosophy was dominated by analytic philosophy; indeed it was analytic philosophy, a field deeply rooted in the study of linguistics and formal logic. This turn of philosophy to linguistics was decidedly a turn away from politics, society, and history. Analytic philosophy suppressed the political and the historical through an insular, seemingly timeless, abstract discourse of language games and logical consistency grounded in mathematical and scientific precision.52 Of the several strains of analytic philosophy, all presupposed that truth could be found in logical symbolism or language, whether of the ‘‘ordinary’’ or descriptive kind. Rather than providing a way of understanding the world, philosophy acted as a metadiscipline whose primary function was to police itself and other disciplines for accuracy according to the linguistic and logical rules it had developed and refined. Under the spell of analytic philosophy, moral philosophy was transmogrified into a field called metaethics, which, rather than ‘‘investigating the nature of the good life, or of the right political organization,’’ concentrated on the ‘‘meaning of . . . evaluative terminology.’’53 In other words, analytic philosophy took morality as a linguistic expression and avoided moral reconstruction or engagement with moral principles. Drawn to substantive moral questions, Rawls believed that the analytic philosophy in which he was trained was limited by its focus on the meaning of concepts and the logic of language but not on resolving social conflicts. The latter Rawls took to be the sine qua non of moral and political philosophy.54 In addition to the Oxford dons with whom he studied in the early 1950s—H. L. A. Hart, Stuart Hampshire, J. L. Austin, and others—Rawls was influenced by the work of his Princeton adviser, Walter T. Stace, a heterodox utilitarian philosopher.55 Stace, who was steeped in British empiricism as well as classical philosophy, would have encouraged Rawls to think beyond the categories of his fellow analytic philosophers and to return to more fundamental moral questions, including ones that bore directly on the problems of the day.56 In the early 1940s, when Stace published his most widely read book, formidably titled The Destiny of Western Man, the greatest moral challenge was Nazism.57 This remained the case, according to Stace, after the war had ended. Stace’s work contributed to the mounting effort among humanists to contest the vogue of ethical and cultural relativism. Stace’s strategy was to develop a moral theory that was

Individual Autonomy and the Modern American State

185

‘‘universal without being absolute.’’58 This antirelativism also permeated Rawls’s dissertation in which he condemned the pervasiveness of relativism across a variety of disciplines, including jurisprudence and the social sciences. Rawls shared Stace’s desire to find a rational and moral ground for liberal democracy. Yet by the time he wrote Destiny, Stace had transformed his concept of universal morality into a normative defense of liberal democracy. In the midst of World War II, and again in a second edition published at the outset of the Cold War, Stace determined to ‘‘prove’’ on objective, rational grounds that democracy, and the Greco-Christian ‘‘civilization’’ from which it arose, was morally superior to totalitarianism—by which he specifically meant German fascism.59 Given the high stakes involved in preserving liberal democracy in the face totalitarianism, Stace felt it imperative that there be a rational and universalist argument to defeat totalitarianism intellectually. ‘‘We shall have to force our way back to the first principles of human living . . . for we can no longer take as admitted the old axioms and ‘self-evident truths’ of democracy.’’60 The alternative political imaginary had made them obsolete. Stace’s principal argument held, syllogistically, that since the purpose of morality is to manifest human nature and since democracy had fulfilled this aim to a greater degree than totalitarianism, it was therefore rational to prefer a democratic over a totalitarian society. Stace, following Plato, held that the rule of reason defined the human personality above all else. Greco-Christian civilization and its latest incarnation in liberal democracy were therefore superior because they gave primacy to reason. By contrast, totalitarianism perverted human nature and thus was an intolerable and ultimately unworkable political system by elevating the will to the position of Prime Mover, a first and final cause. While Rawls admired Stace’s effort to deduce a rational basis for liberal democracy, he did not accept the latter uncritically or try to prove its moral superiority over other political arrangements. Indeed, Rawls deemed it essential that moral philosophy be critical of the existing order. In his dissertation, Rawls noted that a critical stance was all the more necessary in light of the relativistic tendencies within the behavioral and social sciences and moral thought. Not only did relativistic thinking increasingly suffuse political decision making in the modern state, it undermined the centrality of justice as an ideal. Hence Rawls challenged the popular idea of weighing equally culturally different ethical views (especially those ‘‘primitive’’ ones coveted by cultural anthropologists) because the mere fact of diversity tells

186

Chapter 5

us nothing about whether the moral judgments in question are rational, considered, and consensual, thereby constituting reliable tests for evaluating the ethical principles that should inform a society. Rawls suggested that without some preferred ethical standards, ‘‘reform within a civilization . . . loses its rationale. It is not only that we cannot criticize other people, but that we cannot criticize our own popular code. The consistent adoption of this view [of ethical relativism], then, leaves us without a test for reasonable reform, and even denies its existence.’’ Rather, overarching ethical standards were needed to define and adjudicate any ‘‘legitimate complaint against . . . established institutions.’’61 Not only was the theme of judging— and where necessary reforming—existing political arrangements an animating impulse throughout Rawls’s writings. Rawls also regularly acknowledged the force of social and cultural institutions in shaping human character and hence moral judgments. Rawls’s theory included not just an abstract individual, but also a socially embedded one. Nevertheless, Rawls shunned anthropological and sociological evidence for formulating moral principles and establishing public rules and institutions in a constitutional democracy. He did not entirely reject the social sciences; he preferred those in which mathematics and inductive logic predominated in understanding human behavior over the empirical evidence garnered from sociology and anthropology. Social scientific expertise could not solve the distributional questions at the center of his theory of justice. Not only the structure of institutions but the substance of public policy— for example, who deserves what in a society—was fundamentally an ethical question, not a calculus to be determined by unaccountable administrators.62 At this point, game theory provided a crucial tool for Rawls to arrive at a test of legitimacy of state institutions and practices. Although Rawls’s use of game theory changed over time, throughout his writings it helped him derive fundamental principles of social justice with minimal empirical assumptions about human nature and without recourse to a transcendent source of morality. Instead, the principles were derived from a decision procedure that Rawls gleaned, in part, from game theory. With its focus on individual and collective decisions to agreed-upon rules, game theory allowed the early Rawls to justify a more limited reliance on the central state to achieve cooperation in a competitive society composed of self-interested individuals. In his more mature work and utilizing a more sophisticated model, game theory allowed Rawls to show how the regulation of people’s conduct by public institutions and practices might

Individual Autonomy and the Modern American State

187

be thought of by the citizens of a constitutional democracy to their own as well as to society’s advantage. What, in other words, would make them legitimate, or justifiable to the public? While game theory bore a strong resemblance to utilitarianism, games did not operate through the rule of command and control but through voluntary cooperation among players who were, or should be, positioned relatively equally and who agreed to abide by the same set of rules. Hence game theory led Rawls to stress fair procedures. These procedures, applied to rational people who knew that cooperation was to their benefit, would mitigate against arbitrary behavior, unalloyed discretion, and unchecked centralized power.63 For his reliance on rational choice theory in general and game theory in particular, Rawls is often accused of caring only about procedure rather than substance or results. He was just another New Deal statist liberal with perhaps a greater emphasis on rights of the individual.64 In an article written in the 1970s, the constitutional scholar Laurence Tribe argued that game theory’s salience was attributable to a postwar ideological consensus, which dictated that ‘‘the crucial choices would be essentially technical in character, the crucial techniques those of rational choice among competing means to largely settled ends.’’65 But since the elaboration of game theory predated the consensus period to which Tribe is referring, it was, arguably, less a result than partially constitutive of this putative consensus by its very presumption that what men and women wanted was essentially fixed. By the mid-1940s, game theory had helped to repopularize an economic model of society, elevated efficiency to a primary value, and professed neutrality on ethical or foundational matters while favoring strategic and procedural concerns. Yet Rawls was to use it in a very different way.

The Analogy of the Game Rawls traveled a long road to A Theory of Justice, and game theory rode with him the entire journey. Although he did not use it systematically at first, Rawls discovered game theory at a very early point in his career, probably in the late 1940s when he was a graduate student and an instructor at Princeton.66 His exposure to game theory was all but inevitable given that Princeton in the 1940s was a hub of game theoretic activity, employing both its mathematical inventor and his eventual collaborator, an economist.67 Perhaps the two ‘‘discoveries’’ of game theory and social contract theory were connected in Rawls’s mind since in ‘‘Justice as Fairness’’ he

188

Chapter 5

described game theory as a ‘‘marvelously sophisticated development of this [the social contract] tradition.’’68 Suitably modified, game theory enabled Rawls to think about how and why citizens might come to agree on underlying principles given the proper rules and procedures. The legitimacy of the principles would rest upon the notion that they emerged from conditions of freedom and mutuality. As a fair, rational, and collective decision procedure underlay the political order, it would be possible for citizens to say that ‘‘true community’’ had produced the principles and the institutions informed by them and thus that they were voluntarily cooperating in adhering to society’s laws and norms rather than being coerced into doing so.69 Game theory gave him a way to think about the conditions for consent to political institutions that did not involve a historical or metaphysical state of nature.70 In his Princeton lectures Rawls introduced the ‘‘game analogy,’’ a rudimentary form of game theory that enabled him to use the structure of a game to analyze a democratic capitalist society in the context of a significantly constrained centralized state.71 In ‘‘Society as a Game,’’ Rawls noted that he was primarily interested in what makes a ‘‘game worth playing.’’ Or, in social terms, what makes a competitive social order of self-interested individuals worth supporting and participating in—what makes it justifiable to its citizens? The answer centered on a game’s ‘‘fixed and known’’ rules, which allow for rational expectations and planning. In addition, these rules are mutually agreed upon by the participants; games, like most societies built on ‘‘social contracts,’’ are self-legislating. The players ‘‘act by the rules because they agree to them and have designed them.’’72 These rules ensure order by instilling trust in others. A freely played game balanced what Rawls, temporarily caught up in the framework of Cold War liberalism, considered philosophy’s most pressing concerns: ‘‘freedom and order.’’73 At this stage, Rawls assumed that people were ‘‘egoists,’’ whose motivation was to win, at least for the purposes of the kinds of ‘‘public’’ decisions they must make as members of a competitive voluntary society. Rawls noted how games showed that while people’s particular goals may be selfinterested, the overall objective of playing a fair game could be realized even and perhaps especially if the players were unaware of it and ‘‘provided we design the rules correctly.’’74 The game, or the social order, would not be ‘‘centrally directed,’’ which meant that no one knew in advance what the outcome of the game would be. Acknowledging his indebtedness to Adam

Individual Autonomy and the Modern American State

189

Smith, Rawls remarked, ‘‘One might be tempted to say that this is a laissezfaire view. Well, perhaps it is: but its [sic] not a fixed dogma.’’75 Rawls never held that classical economic theory ought to be the basis for constructing an ideal theory of society, or even that the argument for perfect competition leading to an economic optimum was correct. Instead, Rawls noted that the assumption of perfect competition could not apply to a social order and invoked game theory as a kind of modified form of classical economy theory. To Rawls, game theory suggested that society’s fundamental rules and institutions should be arranged to preserve as much as possible ‘‘the free play . . . of self-interest’’ and equal liberties.76 The problem was that as much as Rawls emphasized the importance of rules, the outcome of the game remained radically uncertain and hence equality of opportunity and other liberties far from guaranteed. Rawls would seek to mitigate this unintended consequence as his theory of justice developed. The uncertainty resulted from each player pursuing his or her self-interest under rules that dictated how the game would be played but not who ought to win or, say, be given a handicap. In addition, the players themselves determined the play of the game, as in a society founded on a putative social contract. But since the game is built on consent, Rawls reasoned, there must also be an ethical component. This ethical component would have to be embedded in the rules of the game. For not just any rules or laws would preserve the ‘‘free play’’ of selfinterest, apply equally to everyone, and be mutually determined in advance by the participants. Since a capitalist democracy is not in fact a game, as Rawls freely admitted, one cannot take a chance on an outcome based only on minimal procedural constraints or the good will of the players. Some luck and chance will necessarily be involved, and it is this element of chance that will encourage people to participate. ‘‘Pure luck’’ is ruled out, however, because in that case individual initiative no longer matters and ‘‘how hard one tries’’ must also be rewarded. Hence in society, as in a fair game, everyone would have to start out ‘‘with roughly equal resources’’—both material and spiritual.77 But effort and talent would also matter. Even at his least statist, the concern for fairness drove Rawls ineluctably to a conclusion that some sort of equality would have to join liberty as an ethical principle because of the problem of ‘‘accumulating inequalities.’’ This phenomenon, he believed, was intrinsic to competition and would lead to too much insecurity for the ‘‘players’’ to be able to trust that the outcome of the game would be fair, even under a system of impartial rules.

190

Chapter 5

To keep inequality and hence the range of possible outcomes within reason, one would need a rule that would involve ‘‘redistributing some of the rewards of winning—e.g. through taxation of various sorts.’’78 Rawls thought of the redistributive principle as one that would generate equality of opportunity in a competitive society as well as trust in the system of governance. Taxation would fund public education and other resources that would give people a fair shot of achieving the life they wanted. The difficulty is that recalibrating ‘‘accumulating inequalities’’ and taxing people to fund the common good could appear to be different objectives from the perspective of the citizens to whom the policies applied. Rawls believed that his ethical constraints would help people to compete by providing equality of economic and political opportunity. But his redistributive system, which included ensuring ‘‘a fairly wide distribution of property,’’ suggested endemic power imbalances that would need constant readjustment by authorities beyond the conventional understanding of ‘‘equal opportunity.’’79 He acknowledged this very ‘‘difficult balancing problem’’ between what he called the good and bad effects of a society built on competition, but could not come close to resolving it at this point; his views toward the coerciveness of the centralized state would not allow it. In another Princeton lecture, Rawls made clear just how coercive he thought the state to be, but he also noted that government action did not always come ‘‘at the cost of liberty.’’80 Yet it easily could and therefore should be used as little as possible. ‘‘Prenez garde!’’81 These were Rawls’s cautionary words to indicate the dangers of centralized power—it tends to corruption, literally becoming de-moralized, but most of all, even under the best of circumstances, it remains a legal instrument of violence. To devise a list of things that Rawls’s constrained state would be justified in doing would become a difficult task in Rawls’s future work given this coercive view of state power. For now, Rawls determined that the central government ought to establish rules to protect the ‘‘common good,’’ basic fairness, orderliness, health, and safety; to correct for market failures to provide necessary services; to take charge of those activities that do require command and control, such as a national defense; and to ‘‘represent essential interests which do not get represented in the competitive game, e.g. the interests of future generations [and] conservation of resources.’’82 How, though, was this list of government functions derived from Rawls’s relatively simple game theoretic perspective? State institutions should operate as an umpire in a game, preserving the competitive and voluntary nature

Individual Autonomy and the Modern American State

191

of society, constrained by public and collectively agreed-upon rules, and maintaining the game itself by ensuring order. Centralized political institutions should also rejigger the rules every so often to avoid too much accumulation of wealth and power—to keep the game legitimate. This last function represented a departure, strictly speaking, from the analogy of the game, but Rawls saw it as largely consistent because even in actual competitive games the rules are designed so that the game is fair on its own terms. The predictability and consistency of rules, or laws, was thus a crucial feature of the concept of fairness that Rawls was already developing in his earliest work. These qualities, it should be noted, would necessarily delimit the discretionary policymaking characteristic of the administrative state. Law’s predictability helped to legitimate the state, in two ways. The fact that the principles of justice would yield such a system would serve as a principal basis for why rational people, with a basic moral sense, could agree on the principles of justice as fairness even if they might not end up as the best off in a society governed by those principles.83 Second, the fact that the rules did not constrain liberties more than necessary to achieve a measure of fairness and equality provided further legitimation of a constitutional democracy as citizens could have faith that the odds of success of any given person or group would not be too great. Otherwise, ‘‘game behavior [would] pass over into army behavior . . . player and player [would] become commander and commanded.’’84 In society, too much rule uncertainty would lead, in other words, to administrative fiat or executive command. In training his sights on the state’s potential abuse of power against the less powerful, Rawls was recalling the debate over the rule of law and emergency power that had preoccupied the liberal legalists in the 1940s. For what Rawls had figured out, in agreement with many of the German legalists—but with a greater degree of theoretical sophistication—was that the state was at its most legitimate when pursuing a clearly delineated and broadly supported objective. Ideally, it ‘‘should restrict itself to bringing about what can be desired by everybody.’’85 If the state exercised its power principally over issues in the public interest, this would entail less coercion. True, one might experience taxation as coercive in the sense that one is being made to take an action that one would rather not have to take. But, Rawls believed, a reasonable person would connect the paying of those taxes to one’s safety and protection, to the bridges and roads and electricity and basic necessities of life that, but for taxation, could not exist, at least

192

Chapter 5

not in any consistent manner. By contrast, the most dangerous form of coercion—violence—would be ‘‘applied [only] to the ‘marginal’ offender.’’86 In pursuing common objectives, the government is exerting its power ‘‘when the ends are obvious’’ and thus that power is less coercive, or at least less violent.87 This conception of government in an interventionist welfare state presupposed the least possible coercion among public institutions because the government’s role in a fair and voluntaristic society is limited to implementing minimal redistributive and regulatory measures. However, this formulation also acknowledged the potential for government to act with extreme coercion because the most obvious shared end for the state to be involved in is a national emergency. Rawls understood that in emergency conditions centralized power is simultaneously at its best, and often most legitimate, and at its most treacherous. Government is most competent at solving the ‘‘technical’’ problems necessary for achieving an agreed-upon end, and this requires coercive power—often a lot of it. In other words, having a common goal, an overarching public purpose, while desirable in social terms, was also more likely to lead to the abuse of government power. When government operates under emergency conditions, it works toward a single purpose: stopping the threat, real or perceived. Under these circumstances, ethical principles are put aside in the interest of stemming the imminent danger by whatever means deemed necessary. Citizens in a democracy tend to tolerate this slighting of justice and other moral and political principles because they believe an essential unanimity is required to address the immediate crisis. If the emergency were simply a temporal condition, then the problem might not be so great. But as Rawls well understood, living through a total war and then the Cold War, that is not always the case.88 It was these open-ended emergencies that posed the greatest potential for abuse of power. In Rawls’s terms, ‘‘continued emergencies from without or within—either real or artificial—will work for corruption.’’ If only one end is privileged, then all means are justifiable and moral judgment is obviated. The governing official ‘‘feels justified buying it [the desired outcome] at whatever cost, of sacrificing anything to get it; and from this spring [sic] all the playing fast and loose with truth, with rights, with morals, with religion. . . . It may mean the use of assassins, informers, gas chambers, and so on: and what further tempts the statesman in all this is simply that it is [government] which does have a monopoly of legal violence—which however legal is still violent.’’89 The solution is for government officials to

Individual Autonomy and the Modern American State

193

remember that in fact there is not only one end, even under these kinds of emergency circumstances. Moral principles, the rights of citizens, and democratic participation continue to matter. One must not bow to technocratic thinking except under the most extreme conditions—an immediate, palpable threat to the security of society. In his argument about the state’s emergency powers, Rawls had picked up a gauntlet thrown down by World War II and its aftermath: how to maintain a semblance of the rule of law in a state of emergency. In particular, how ought government identify the conditions that would require the state to relax or even suspend the legal and ethical norms that operated in normal times? Rawls, not unlike Carl Friedrich, seemed perplexed by the Cold War’s imposition of a continuous state of emergency under a highly bureaucratized, executive-driven national security apparatus. Cooperation toward a single end was necessary in emergencies, ‘‘the great engines of central power.’’90 Yet government-directed cooperation was not true cooperation at all; it was a coerced unity that undermined the rule of law, individual autonomy, and voluntary social interaction. Rawls again raised the issue of emergency conditions and their effects on the rule of law and liberty in A Theory of Justice. Having now fully developed his theory, one of whose tenets was that equal liberty for all should be the highest priority in a just society, he urged that in a less than ideal world, some protections of freedom under the rule of law might have to be given up in order to prevent an even greater loss of liberty for the average citizen. (He cited the example of relaxing the intent standard for possession of guns in order to thwart paramilitary groups from stockpiling weapons.)91 However, this concern with emergency powers, while unusual at the time, did not match that of his Princeton days with a state of heightened militarism in the background. That ‘‘the historical nightmare in which we now live,’’ as Rawls described the Cold War, would inflect Rawls’s early writings on ethics and social choice is of little surprise.92 Of greater interest is that Rawls did not succumb to Cold War logic as would so many liberal intellectuals. One need look only briefly at the history of game theory to appreciate how different were his concerns from those of the typical Cold War liberal.

Games Mathematicians Play: Calculating the Incalculable One reason Rawls was drawn to game theory was its usefulness in critiquing certain assumptions that lay behind the administrative state—those of

194

Chapter 5

utilitarianism. Game theory gave Rawls a means of conceiving of a social or ‘‘interactive’’ rational choice, in which other people’s actions mattered, rather than social choice conceived of as a mere aggregation of individual preferences whose importance and policy implications were determined by expert administrators. This was the case because game theory attended to each individual involved in the game (a society) and employed logic, rather than the decision of the imperious bureaucrat of utilitarian theory or the administrative state, to allocate resources, including rights and duties, opportunities and political offices, benefits and burdens. Game theory was only one of the more recent twists in a decades-long attack on utilitarianism by social scientists and mathematicians. The assault began with the new discipline of welfare economics. Since the 1930s, welfare economists had been interrogating utilitarianism on two grounds: how allocative decisions about society’s resources were made and who should make them.93 Welfare economists believed that utilitarianism wrongly posited a single standard of utility, or happiness, for society, thus ignoring issues of distribution. The field prospered in the late 1930s when distributional issues became more important to the New Deal agenda.94 Game theory addressed two additional dimensions absent in utilitarianism, both of which were attractive to Rawls: a social dimension that accounted for social and not just individual choice, and a dimension of uncertainty that could be managed without being eliminated. While game theory was devised during World War II as a form of decision theory, its heyday came during the Cold War, whose high degree of uncertainty and constantly shifting geopolitical and military strategies begged for new ways to model complex decision making in a situation of high-stakes competition. As one historian of game theory observes, ‘‘a game is equivalent to a table of possible outcomes.’’95 More broadly, to borrow a notion from theorists of late modernity, game theory assembled a variety of ‘‘potential futures.’’96 Hence it was useful to Cold War ideologists hoping to be able to predict the actions of communists, and in the course of only a few years it made its way first into economics, and then into military decision making.97 Rawls, however, found later developments in game theory more appealing. The mathematician John von Neumann and the Austrian economist Oskar Morgenstern’s Theory of Games and Economic Behavior (1944) introduced game theory as a systematic form of mathematical analysis in social choice situations—which strategies, mathematically speaking, would be rational in certain contexts of economic decision making

Individual Autonomy and the Modern American State

195

aimed at achieving a given goal.98 Von Neumann and Morgenstern concentrated on zero-sum games, which reduced the number of variables involved in how and why decisions would be made. In zero-sum games, there is a fixed payoff to be won, so that if someone gains somebody else must lose. From Rawls’s perspective the problem with such cases was that they obviated the cooperation required of a voluntary society. On the other hand, early social scientific game theory posited two key assumptions that did pique his interest: that human beings are rationally selfinterested but nonetheless cooperate under certain conditions, and that those same human beings are not fully trustworthy, especially in competitive situations, where deception and trickery are often at a premium. Game theory’s main objective in the 1940s was to devise strategies for dealing with the uncertainty inherent in situations of social choice where not all relevant information could be known in advance, chiefly how others would act. Game theory modeled the problem of uncertainty by positing games in which a rational player’s strategy for winning depended on anticipating what other rational players might do. Yet it was not possible to imagine all the moves the other player or players might make. The premise of these games was that one could not plan for every contingency—without, that is, the aid of sophisticated mathematical calculations. As such, game theory employed mathematical formulas to rank desired social outcomes based on an assessment of the risks entailed in pursuing each, given all possible strategies of every party to the game. Like social contract theorists, game theorists made use of the hypothetical, which allowed them to rig a situation of social uncertainty so as to bind if not determine the outcome of the game. The method of calculating and arranging these potential futures was doomed to fail in many real-world situations; it could not provide consistently reliable answers, given human subjectivity, irrationality, and a lack of information about other people. For example, winning the game often means different things to different people, or groups of people, depending on their preference structure. Yet it remained for some a necessary salve war-wracked, crisis-driven, and increasingly risky society. As the German sociologist Ulrich Beck points out, the rapid pace of modernization produces, as unwanted side effects, more and more risks, greater and greater insecurity. Mathematics, because of its predictive capacity, becomes the management tool of choice.99 Although probability theory played a role in game theory, the two were not, strictly speaking, aligned. Probability theory

196

Chapter 5

calculated the role of pure chance in a given outcome, thereby removing the social or strategic dimension with which most game theory concerned itself.100 For Rawls, the fact that game theory eschewed straightforward probability theory made it more attractive. For to make one’s strategy entirely dependent upon luck was to ignore the contingencies produced by the other player(s) in the game, qualifications central to Rawls’s theory of collective agreement.101 To play games of strategy as a way of resolving social or ideological conflicts was at once to dismiss the past and to contain the future by showing that, even under the conditions of uncertainty, there were only a finite number of possible outcomes, given the crucial and problematic assumption of the rationality of the players. Another reason Rawls could not adopt game theory entirely on its own terms was that in certain respects game theory bore a strong kinship to utilitarianism and mirrored some of its deficiencies. Like utilitarianism, it assigned value to people’s preferences or desires, which it also called ‘‘utility,’’ and stressed the consequences of decision making as the criteria for assessing value. Games, by definition, have fixed payoffs and in this sense are oriented toward consequences. On the other hand, with analytic philosophy it shared a fealty to rules and logic. Despite this affinity, game theory did not much influence the philosophical discipline when it first entered the academic scene in the mid-1940s. Even for a philosopher, game theory seemed highly abstract, as it was grounded almost entirely in mathematics. Nevertheless, game theory, like utilitarianism, was a normative theory because it asserted what an individual or individuals ought to do if they were acting rationally and in accordance with their preferences. Surely the broader reorientation of philosophy and political theory in a more normative direction was one reason why game theory resonated among some philosophers in the late 1950s. But the publication of a book that analyzed the concepts and assumptions of game theory and discussed its applicability to situations one might actually encounter in the course of one’s life rather than simply performing mathematical somersaults to ‘‘solve’’ hypothetical, interest-driven dilemmas was just as important. That book was R. Duncan Luce and Howard Raiffa’s Games and Decisions, described by Rawls as ‘‘a comprehensive and not too technical discussion’’ of game theory.102 This work was the product of the newly formed Behavioral Models Project within Columbia University’s Bureau of Applied Social Research and was funded principally by the federal government’s Office of Naval Research.103 Luce and Raiffa suggested, in what they touted as the

Individual Autonomy and the Modern American State

197

first extensive application of game theory to social science, that game theory was an ‘‘approach to interest conflict.’’104 As a result, they deemphasized the zero-sum games of earlier game theory where the conflict is absolute. They attended instead to the knottier issue of conflicting individual and group preferences and to the problem of uncertainty—the two aspects of game theory directly relevant to Rawls’s developing theory. Influenced by Kenneth J. Arrow’s work on the social welfare function (a way of fairly ranking social ends given different individual choices), the book analyzed various methods of aggregating individual preferences, including majority rule, in order to yield acceptable social choices. This insight about the limitations of even the fairest collective decision procedure was important to Rawls not only because of his interest in fairness, but also because, along with the German legalists, he realized that majority rule could undercut the rule of law ideal by producing unjust outcomes. Hence Rawls drew on these rational and social choice methods in developing his theory of the legitimacy of unjust laws adopted by legislatures.105 He also utilized them in his reasoning about acceptable bases for political and social inequalities. The idea was to employ mathematical logic to find fair rules to govern social interaction and outcomes. Obviously, as Rawls readily acknowledged, there are grave limitations to such an approach when the ‘‘rules’’ are moral principles and the game is the ‘‘basic structure’’ of society. But games never entirely ignore individual preferences or the fact that there will always be conflicts among individuals even and perhaps especially when they cooperate.

Games Philosophers Play: Calculating the Moral For most philosophers, game theory, even in its more social scientific form, seemed grossly ineffectual in addressing ethical considerations of right and wrong. The theory’s goal was purely instrumental: to devise strategies to maximize players’ utilities without regard to social or individual sacrifice. But one renegade philosopher schooled in the Anglo-American tradition attempted to find common ground in the two fields’ concerns with social cooperation, and in doing so he caught Rawls’s attention. In 1955, R. B. Braithwaite published a lengthy lecture titled The Theory of Games as a Tool for the Moral Philosopher.106 A well-known Cambridge scholar, Braithwaite opened his lecture with a Rawlsian lament that philosophers had all but

198

Chapter 5

abandoned any quest to wrestle with substantive moral problems by focusing exclusively on the dissection of language and the relationship between language and knowledge. Analytic philosophy’s principal method—the method of the logical analysis of language—was of no use in situations of conflicting interests when the result had to be negotiated or arbitrated, when, in other words, there was a true moral dilemma with clear ethical implications. Formal logic, according to Braithwaite, did not have the capacity to weigh differences or assign values for the purposes of distributing advantages and disadvantages. Rather than turning to traditional forms of moral philosophy to correct this deficiency, Braithwaite looked to game theory, making ‘‘a direct and unashamed use of mathematics.’’107 For Braithwaite, resolutions of ethical problems were practical and strategic, not principled or transcendental. The ‘‘moral’’ dilemma that Braithwaite sought to ‘‘resolve’’ via game theory was how two musicians who lived next door to one another could practice their respective instruments without disrupting the other. Braithwaite decided that the ethically correct way of meting out practice time would be to assign numerical values to, calculate, and ultimately rank the musicians’ preferences, in this case for playing either at the same time, at different times, or not playing at all. Braithwaite ‘‘solved’’ the dilemma by determining that Matthew, a trumpet player, could play more often (on twenty-six evenings) than Luke, the piano player (who could play on seventeen evenings), because Matthew, with the louder instrument, preferred that the two musicians play at the same time, while Luke, with his dulcet piano, desired that they not do so, thus giving Matthew more options for times during which to play. From Rawls’s perspective, Braithwaite’s solution reflected the fact that Matthew had a ‘‘threat advantage’’ over Luke because he could assert, as it were, the right of the louder.108 Even so, for Braithwaite, this arrangement represented an ethical solution for allotting the musicians’ playing time given the two men’s preferences. Unfortunately for Rawls, Braithwaite’s attempt to demonstrate game theory’s relevance to moral philosophy had little to do with ethics. It ignored any substantive conception of justice as fair play and as entailing impartial principles for the equitable regulation of conflicting interests. Braithwaite substituted for justice ethically arbitrary preferences derived from one’s social position. Rawls pointed out that there was nothing at all ‘‘fair’’ about Braithwaite’s solution because his formula for a ‘‘fair’’ division of playing time lacked ‘‘a concept of morality.’’109 A moral solution could

Individual Autonomy and the Modern American State

199

involve no assertion of privilege or raw advantage. ‘‘There are obviously numerous ways of eliminating conflicts: one can, for example, simply eradicate one of the contending parties. The moral problem, however, is not merely to solve disputes, but to solve them justly and fairly; and this means, to do so on the basis of justifiable principles.’’110 Rawls determined that neither fairness nor morality would prevail by assigning more playing time to Matthew, the trumpet player, simply because the blare of his trumpet could drown out the softer timbre of Luke’s piano. ‘‘To each according to his threat advantage is hardly the principle of fairness,’’ Rawls complained.111 Playing a louder instrument is not a basis for right—there is no right of the louder. Braithwaite had failed to justify the obvious inequality eventuated by the assignment of different amounts of playing time to the musicians based solely on their self-interest. There was no rationalizing any distributional advantage to be gained by the arbitrary fact that the players had chosen to pursue different instruments. For Rawls, the project of pursuing the piano was just as socially legitimate as the project of taking up the trumpet. An impartial rule would have to be devised. Like Braithwaite, Rawls found game theory’s potential to illuminate new ways of devising cooperative strategies attractive, but he was even more interested in justice. In Rawls’s account of justice as fairness, as he developed it in the 1950s and 1960s, the only way to arrive at a just or fair outcome was to discount unearned or inherited advantages people might possess—to exclude arbitrary distinctions—in order to mimic the conditions of the original and presumptive equality of human beings. Rawls described these conditions as the Original Position beginning in 1963.112 At this point, Rawls recognized that fairness could not be derived purely from rational self-interest, or, in game theory’s terms, from the player’s location and circumstances in the game. One should not, in other words, ‘‘[accept] as given and definitive the preferences and relative positions of the parties, whatever they are.’’ Nor should one ‘‘[start] directly from the particular case as known,’’ when seeking a just resolution.113 Braithwaite’s analysis revealed two major difficulties in applying game theory to moral problems: it was inegalitarian, failing to make an assessment of any undue advantage or disadvantage that might have accrued from the arbitrarily different circumstances the players were in; and it assumed that participants would be ‘‘rational’’ and ‘‘amoral’’ ‘‘egoists’’ whose only goal was to win, or maximize their utility—either for themselves individually or for their side collectively. Indeed, game theory was

200

Chapter 5

not in the end an ethical project at all; its main proponents were decidedly not interested in morality or even, necessarily, in fair play. The former, they felt, was irrelevant while the latter was largely anathema to game theory: in the world of games, winning is the thing. With game theory’s penchant for strategic reasoning, its habit of avoiding the hard ethical problems, and its lack of concern for inequalities among people or parties, one could easily imagine Rawls dismissing it altogether. Game theory, he would argue, was patently unfair since it did not attend to the differing positions in which the players may be situated, thus skirting his conditions of the ‘‘balance of power’’ and the ‘‘similarity of circumstances’’ necessary for establishing a socially just resolution. Game theory, he would elaborate, shared too much with the utilitarian calculus of catering to individual preferences rather than mutually determining fair rules in advance to which all parties would adhere. But from his 1958 essay on, Rawls used game theory against utilitarianism and with social contract theory. Just as he had accepted the importance of defining one’s terms insisted upon by analytic philosophy while jettisoning the idea that meaning and linguistic construction were the sine qua non of ethics, Rawls criticized game theory while simultaneously co-opting certain elements of it. As with analytical philosophy, he tried, in short, to nudge game theory ever so slightly closer to the world—in a way he hoped both the world and the theory would find congenial. Its fantastical abstractions notwithstanding, game theory, when placed in the context of political philosophy, could be understood as a kind of modern gloss on social contract theory.114 But that depended crucially on how one interpreted game theory. If one focused on the rules of the game, one might see games principally as loci of cooperation: for a game to be successful, players must first agree to a set of rules of the game and agreement, of course, is a form of cooperation. If one focused, however, on the strategies employed within those rules, strategies for winning, or at the least not losing, then games, particularly zero-sum games, become, primarily, sites of conflict. For his part, and against many Cold warriors, Rawls chose to emphasize the cooperative dimension of game theory rather than the conflictual. While conflicts of interest were inevitable, they could be managed in order to achieve the goal of ‘‘a proper balance between competing claims.’’115 For Rawls, game theory modeled a form of decision making among rational agents over a common problem in which zero-sum outcomes could often be avoided. Unlike utilitarian ethics, game theory had

Individual Autonomy and the Modern American State

201

to take the preferences of everyone involved in the ‘‘game’’ directly into account—either their known actions or their assumed desires.116 Yet Rawls could not abide the theory’s assumptions about human nature, which were fundamentally pessimistic; human beings simply could not be trusted. And when untrustworthiness was coupled with the supposition that people wanted to minimize risk, the players of the game (the citizens in society) became unattractive indeed: at worst they were devious, self-serving liars, at best they were mercurial. Rawls followed game theory’s characterization of human beings not so much in figuring them as deceptive—indeed a certain intuitive trust was necessary for a voluntary and relatively egalitarian society—but in the implication that people are essentially cautious, in particular that they are unwilling to take risks in the social lottery. In his 1958 essay, before he had worked out the details of impartiality and risk aversion, Rawls asserted only that in choosing principles of justice, citizens would want certain assurances that their interests with respect to a given institution would be protected even if ‘‘his enemy were to assign him his place.’’117 By 1963, Rawls’s construction of the hypothetical choice situation included the notion that the contractors were shielded from knowing the social role they would occupy in society, and even from their own potentialities: ‘‘Briefly, they do not know how they have fared in the natural lottery.’’118 In 1967, he came to call this aspect of the hypothetical choice situation the ‘‘veil of ignorance.’’ This assumption supported Rawls’s contention that citizens would abide fair rules that would guarantee a social minimum for all rather than favoritism based on accumulated resources or privileged access to decision makers. Rawls elaborated on his idea that hypothetical contractors would choose principles that would provide a floor below which they could not sink with the ‘‘maximin principle,’’ an idea he took directly from game theory. In doing so, Rawls abandoned the assumption that people reasoned as though their enemy were deciding their fate. But he insisted that when it came to thinking about the distribution of resources as dictated by the difference principle they would likely assume that their future could be in the hands of a person least interested in their well-being. Hence ‘‘it is rational to be conservative and so to choose in accordance with an analogue of the maximin principle.’’119 The maximin strategy essentially instructed a person to take the least worst option, literally to maximize the minimum. Much has been made of Rawls’s employment of the maximin assumption, principally by game theorists themselves, who have argued that Rawls assumed his

202

Chapter 5

contractors would be more risk averse than most people actually are. Seen in the context of the anxieties of the mid-twentieth century, however, his emphasis on risk aversion can be more easily understood.120 In the end, game theory’s rational decision-making model did not possess the tools to get Rawls to the mutual disinterestedness that would allow citizens to agree upon the principles of justice. Rawls’s social contract required as an act of rational, principled choice that ‘‘the individual should surrender the right to act purely according to his atomistic strategy.’’121 Rational choice for Rawls was not, strictly speaking, individualistic choice. Without a basis for the fair division of resources and rights, ‘‘benefits and burdens,’’ the louder, the stronger, or, most important for Rawls, the richer and more powerful could simply use their position in society to gain an unfair and arbitrary advantage over others. Fairness would prevail rather than power politics if by way of a fair procedure there was a joint acknowledgment by free and equal persons of common principles as the basis for determining fair institutional arrangements and practices. This joint acknowledgment of principles would provide a legitimate reason for ‘‘forcing’’—through laws, rules, etc.—people to sacrifice their short-term self-interest for the good of the community since the constraints were selfimposed and arrived at freely and equally. The added moral grist of justice as fairness would militate against the arbitrary power imbalances tolerated by game theory and provide for a distributional politics that could correct for the deficiencies of allowing those in positions of power to manipulate others and thus to determine the outcome of the game. However, even a modified form of game theory, constrained by a notion of fairness, was inadequate for Rawls’s purposes. These limitations were reinforced when Rawls considered the rule of law in a constitutional democracy. The problem came down to the inadequacies of proceduralism as a guarantor of substantive justice.

The Rule of Law, Justice, and the Duty to Obey In his limited writings on law, Rawls drew in part on the debate over the rule of law ideal introduced by the German e´migre´s, expanding his field of reference beyond ideal theory to include Germany and the role of legality under the Nazi regime. As the liberal legalists had found, Nazism represented the ‘‘hard case’’ for determining what law should be in a democracy

Individual Autonomy and the Modern American State

203

and especially whether it required a moral dimension to guide the interventionist state. Although Rawls wrote little about the rule of law, by supplementing an examination of his published essays and passages from A Theory of Justice with his lecture notes from the mid-1950s through the 1960s, one sees that he carefully thought through the nature and legitimacy of law as a constraint on the state and its citizens.122 For Rawls, the rule of law constituted a fundamental norm and the legal system a fundamental institution in a just constitutional democracy but, unlike the principles of justice, they could not ensure a just society on their own. That is because if ‘‘consent’’ to the principles of justice gave legitimacy to a social order imagined as a product of a cooperative mutual decision-making process of free and equal parties, this legitimacy did not extend automatically to any particular institution or practice, including the law. Even so, it would be difficult to underestimate the importance of the legal system for a constitutional democracy such as the United States in Rawls’s view. For Rawls, ‘‘the law defines the basic structure within which the pursuit of all other activities take place.’’ As a system of public rules, the legal system sets the terms and conditions of all public institutions and possesses a ‘‘monopoly of coercive powers’’ within the state.123 Law is the medium through which public institutions act. Rawls’s concept of the rule of law, like that of the liberal legalists, ruled out most of the delegation of power and discretion that characterized the administrative state.124 In many ways Rawls’s views tracked the rule of law ideal—or, in his terms, ‘‘justice as regularity’’—delineated by the liberal legalists in the 1940s. First, Rawls’s formalist conception of the law emphasized known and impartial rules, equal treatment of ‘‘similar’’ cases, and ‘‘some sort of due process’’ (though Rawls struggled with this last requirement in his earlier unpublished writings and the phrase ‘‘due process’’ is mentioned only once in A Theory of Justice).125 Second, Rawls connected the rule of law to the principles of justice and in particular to equal liberties in the sense that it creates ‘‘legitimate expectations’’ for citizens to predict how others in society will act and thus establishes a framework for the exercise of their rights and freedoms. Third, Rawls looked to the legislature, not to the bureaucracy or the executive branch, as the locus of lawmaking as the political institution built most directly on consent. Finally, Rawls highlighted the fact that ‘‘justice as regularity’’ constrained majority rule. These constitutional constraints on majoritarian decision making helped to

204

Chapter 5

ensure that policies would be in the public’s interest and that ill-considered emergency legislation would be weeded out by the legislative process.126 Aside from this conception of formal law, Rawls’s views on the law and legality are not easily detected. Like the German legalists, Rawls straddled the line between legal positivism and natural law, rejecting both as inadequate to an understanding of the ‘‘principle’’ of the rule of law, though he hewed much more closely to positivism than his German counterparts.127 Still, it is wrong, I believe, to reduce Rawls’s conception of the rule of law to a purely positivistic one.128 Rawls contended that there was no necessary, that is, logical, relationship between law and morals or justice but that ‘‘there are certain aspects of justice implied by the notion of a legal system. These aspects may not take us very far, and they may be compatible with unjust institutions [and yield unjust laws]; yet they deserve notice nonetheless.’’129 In addition to the characteristics of formal justice already mentioned, Rawls named another, which he was reminded of by his readings on Nazi law.130 Law, he said, must not be ex post facto because by definition if the law is not known or discernible, a crime or legal violation cannot be deemed to be such after the fact. Rawls referred to this is as the postulate nulla poena sine lege. From this prohibition one could deduce that legal infractions must be ‘‘clearly defined,’’ and that statutes, in cases of offenses, be ‘‘strictly construed.’’ A legal system must also include some elements of procedural due process, such as a fair trial and ‘‘rational rules of evidence,’’ again on the assumption that law is aimed at ‘‘guid[ing] human conduct and enforc[ing] certain rules.’’131 In addition, and crucially, in a legal system of public rules similar cases must be treated similarly, a dictum that was prescribed by the notion of rule-following itself. Legal rules, like any rule, must be applied impartially. With this conception of law—as both procedurally just and coercive— Rawls posited justice as regularity as fundamental to a justifiable constitutional democracy. The legal system was uniquely positioned to promote individual autonomy through its knowability, its impartiality, and its commitment to some sort of due process. In a noneconomistic gloss on Hayek’s concept of legal certainty, Rawls held that individuals could not form life plans in a voluntaristic society without knowing what rights and liberties they had and what they could expect others to do and refrain from doing. Moreover, but for the coercive and predictive power of the law, citizens could not fully trust their fellows even in a society broadly committed to the principles of justice. From this it followed that the rule of law was

Individual Autonomy and the Modern American State

205

essential to individual autonomy.132 If, for example, laws were ‘‘vague and imprecise, what we are at liberty to do is likewise vague and imprecise. The boundaries of our liberty are uncertain. And to the extent that this is so, liberty is restricted by a reasonable fear of its exercise.’’133 This notion of coercion as a basis for freedom is classic contractarianism, since the coercion is legitimated by the presumed consent. Yet it is that same coercion that places a high premium on public officials to justify their actions. That such actions could and should be justified was all the more important in an administrative state in which the decision-making process is often opaque. Even as Rawls insisted that law could only model formal justice, Rawls painted several different and not entirely consistent pictures of the concept of a legal system. While adhering to the conclusion, including apparently in A Theory of Justice,134 that there is nothing about the rule of law ideal that required laws to be substantively just, Rawls hedged in his support of an entirely amoral conception of the rule of law. His rather tortured logic on the matter is worth quoting at length for it not only reflects his own struggles but also echoes the efforts of the German legalists. Both sought to breathe enough substantive content into the law so that it might protect other values such as individual autonomy and democratic participation that were threatened by a bureaucratic state: These elements of justice are involved in the notion of a legal system. Moreover they are not negligible. We very frequently complain of these very failures [to apply the law fairly] on the part of the legal order, failures which if they were general and chronic would destroy a system’s character as law altogether. It is therefore a mistake to divorce the concepts of law and justice completely. On the other hand, these are not restrictions which put any limits (or any important limits) on the content or on the substantive rules of a legal system. A system of slavery can be impartially enforced in accordance with all the demands involved in the notions of due process and natural justice; nor of course, need it violate the principle of equity or the maxim nulla poena. Thus, it seems possible to say only that qua its regularity & impartiality etc., a legal system necessarily expresses or embodies certain aspects of justice; but this is largely, if not entirely, on the administrative and enforcement side. So far as the substantive rules of law are concerned, there is no necessarily

206

Chapter 5

overlap at all. If these rules can be regularly acted upon to guide human behavior, they are law if enforced effectively.135 The legal system was devoid of substantive ethical content but contained important maxims that, while not ruling out all injustices, would in theory keep the law shielded from corruption and yield procedural justice most of the time and substantive justice some of the time, depending on the regularity of the law.136 For all these qualifications, Rawls never countenanced his understanding of law as a wholesale rebuke of legal positivism, and in this way he differed from almost all of the German legalists. In fact, Rawls criticized Carl Friedrich for suggesting that a concept of law very similar to that of justice as regularity—devised, in fact, by Arnold Brecht—disproved the doctrines of legal positivism and the broader school of jurisprudential relativism of which it was a part. ‘‘Relativism as ascribing the arbitrariness of any substantive principles of justice remains untouched by conceptions of justice as regularity.’’137 At another point, he felt the need to psychoanalyze the influential German legal theorist Gustav Radbruch for believing in the intrinsic connection between law and morality: ‘‘Surely there must be some motive for denying it [the distinction between law and morality], conscious or otherwise,’’ Rawls mused.138 In A Theory of Justice he dismissed what was arguably the most palatable middle ground: Lon Fuller’s notion, itself very close to that of many of the German legalists, that the formal properties of law contained within them an ‘‘internal morality.’’139 Rawls’s insistence on the disconnect between law and morality and his unwillingness to say that there must be a link had several sources. The first stemmed from the logic of his theory of justice. Looked at one way, the issue was simply a matter of semantics, which is presumably why Rawls called it ‘‘obvious.’’ For him, substantive justice was to be derived in a particular fashion—according to the social contract procedure as he analytically conceived of it. That derivation followed the tenets of pure procedural justice, the postulate that if the principles result from a fair procedure, then they themselves are ipso facto fair or just.140 Rawls distinguished between the principles of justice based on a hypothetical construction designed to ensure their fairness and rationality, and rules, such as laws, that were devised within a social context that precluded any isomorphism between procedure and outcome, or what Rawls called ‘‘pure procedural justice.’’141 A social and political order that satisfies the principles of justice cannot be

Individual Autonomy and the Modern American State

207

so derived because its legitimacy relies on the principles themselves; the principles are antecedent to the institutions. Unlike a hypothetical decision procedure that could be tailored such that the procedure yielded an acceptable outcome, ‘‘there is no feasible political process which guarantees that the laws enacted in accordance with it will be just. In political affairs perfect procedural justice cannot be achieved.’’142 Laws at best exemplify ‘‘quasipure-procedural justice.’’ In lawmaking and adjudication the impartiality that Rawls assumes people would adopt to reason about the principles of justice can easily be undermined by corruption, self-interest, and interest group jockeying.143 Hence substantive justice depended on principles extrinsic to the institution, and legal institutions were, in theory, no exception. That theory was directly tested when, along with other liberal thinkers struggling with the tensions between the rule of law ideal and statist liberalism after World War II, Rawls was forced, by the texts he was reading if nothing else, to confront the role of legality in Nazi Germany. This confrontation had implications for thinking about the rule of law in any modern administrative state, even a democratic one. When Rawls turned his attention to the Nazi case, he began to waver in his positivist leanings. A legal system entailing justice as regularity could be found in ‘‘most modern systems,’’ Rawls noted, ‘‘even in totalitarian states.’’ But, he added, citing the famous Harvard Law Review debate between his former Oxford professor H. L. A. Hart and Lon Fuller, ‘‘perhaps the Nazi legal system might at times have been so far corrupt so as not to deserve the name of law.’’ As an example Rawls cited show trials, which he described as ‘‘a celebration in legal forms [sic].’’144 In another instance, reviewing postwar German cases dealing with the retroactivity of Nazi law, also a topic of the Hart-Fuller debate, Rawls noted that certain Nazi trials violated the basic norms of procedural justice. If the intentional misconstruing of statutes and violations of due process occurred with any frequency in a society, it ‘‘would no longer have a legal system,’’ Rawls admitted.145 While trying to fit Nazi ‘‘legality’’ into his concept of the rule of law, Rawls had to concede that there might be some relationship between procedural law and its content, that the law might have something to do with justice. Rawls was almost certain that this sort of justice was not substantive in nature, but he was not wholly certain. Rawls also noted that in a democracy, as opposed to a dictatorship, there would be greater pressure on the legal system to conform to the principles of justice. Citizens

208

Chapter 5

would not tolerate too much injustice in the law, but how much was too much, Rawls could not say.146 ‘‘It seems possible to say only that qua its regularity & impartiality etc., a legal system necessarily expresses or embodies certain aspects of justice; but this is largely, if not entirely, on the administrative and enforcement side. So far as the substantive rules of law are concerned, there is no necessarily [sic] overlap at all. If these rules can be regularly acted upon to guide human behavior, they are law if enforced effectively.’’147 Rawls did emphasize that this conformity with impartial rules was not negligible, that those issuing judgments must not deviate from the rules in particular cases or let their personal preferences dictate the outcome—all too common occurrences in bureaucratic states. Since the legal system could not be made substantively just, the question remained as to how the rule of law might be properly relied upon to constrain the leviathan state and protect individual autonomy—beyond, that is, its procedural guarantees. We have few clues from Rawls’s writings since this question entails the actual functioning of political institutions. But we can discern that the legislature is to be the primary lawmaker and that following from this administrative rule making must be limited and constrained by the law. At one point, Rawls jotted down notes about how the rule of law might function as a set of constraints on arbitrary power in a constitutional democracy. He identified five principles of the rule of law, which included that sovereignty would reside either in a representative body or ‘‘in a constitution interpreted by the judiciary’’; that a military would be subservient to the legislative branch; that judges would be both independent and subordinate; that a right to free speech protect citizens in the exercise of their political rights; and that ‘‘administrative discretion be limited so far as possible; although need of it is recognized.’’148 Although Rawls offered no elaboration of these principles, they constitute the basic attributes of an administrative state broadly constrained by the rule of law and meaningful democratic participation. In the 1940s, the administrative state and its emergency politics, whether in the democratic United States or totalitarian Germany, raised the potential for the degradation of the rule of law ideal. In response, sympathetic critics launched a defense of legalism, but they did not recommend strict adherence to legality under all circumstances. Rawls’s writings exhibited his own circumscription of legality when he turned to the defense of civil disobedience and conscientious resistance to the draft, or ‘‘conscientious refusal.’’ ‘‘The theory of civil disobedience,’’ Rawls noted in A Theory

Individual Autonomy and the Modern American State

209

of Justice, ‘‘supplements the purely legal conception of constitutional democracy. It attempts to formulate the grounds upon which legitimate democratic authority may be dissented from in ways that while admittedly contrary to law nevertheless express a fidelity to law and appeal to the fundamental political principles of a democratic regime.’’149 This sort of nonabsolutist defense of the rule of law ideal distinguished liberal and some leftist views of the rule of law from conservative interpretations, which emphasized judicial checks on the legislature and a strict construction of legal texts without exception. Rawls faced a difficulty related to but different from that of the German legalists when it came to the boundaries of the rule of law ideal. The issue remained, under what circumstances were departures from the rule of law justified? For Rawls, however, the main concern was over individual autonomy and consent, not the preservation of constitutional democracy as such. In part, times had changed. For while it was in the context of debates over law in Nazi Germany that Rawls first began thinking about obedience to unjust laws, it was in the 1960s, in the face of the civil rights movement’s dramatic acts of civil disobedience and conscientious objection to the draft during the Vietnam War, that he more fully developed his ideas on the subject. At this point, Rawls took a rare step into nonideal theory, that is, a theory in which perfect compliance of public institutions to the principles of justice is no longer assumed. Freed from these strictures, Rawls could explore situations of injustice, including unjust laws and whether there is a duty to obey them, the degradation of the rule of law under emergency government, and the diminution under the Constitution of certain liberties when they conflicted with other liberties. In theorizing the duty to obey unjust laws, Rawls expanded the debate begun by the German e´migre´s about the costs of a principled commitment to the rule of law. He began with the premise of basic legitimacy: that in a nearly just constitutional democracy, citizens have a ‘‘natural duty’’ to ‘‘support and comply with just institutions.’’ This normally includes an obligation to obey the law, even an unjust law.150 Having established a general obligation to obey the law in a constitutional democracy, Rawls justified departures from this principle on the assumption that even members of a democratic society do not owe automatic allegiance to all of its public rules. One’s obedience to the law may be overridden by one’s belief that the principles of justice have been violated in some fashion. Although a system of transparent and impartial rules is crucial for individual liberty

210

Chapter 5

and the common good, Rawls showed, as we have seen, that such a system is not enough to guarantee a fair result. In agreement with most of the German legalists, Rawls believed that a primary reason for democratic institutions’ legitimacy deficits was the system of majority rule. Majority rule is another an example of what Rawls called imperfect procedural justice because while the procedure has an independent ethical warrant—the Constitution—it cannot ensure a just outcome.151 Majorities ‘‘make mistakes.’’ Even in a mostly just constitutional democracy, people sometimes vote or take decisions in ignorance or in self-interest and for this reason political institutions can and do fail in their bid for justice and fairness. If the Germans had the Weimar Republic as their object lesson, by the early 1960s, this flaw was being exposed on a daily basis by the civil rights movement. Rawls first published on legal obligation in general and civil disobedience in particular in his 1964 essay ‘‘Legal Obligation and the Duty of Fair Play,’’ elaborating on these themes two years later in early drafts of a 1969 essay titled ‘‘The Justification of Civil Disobedience.’’152 But his unpublished writings on these matters date to 1963. Rawls became more supportive of the concept of civil disobedience as the decade wore on, a trajectory opposite that of many other liberal thinkers who began to equate all forms of disobedience to the law—from rioting to sit-ins—with anarchy and lawlessness.153 Civil disobedience and conscientious objection served as excellent illustrations of the need for a ‘‘moral basis of democracy,’’ in which the people, as opposed to, say, administrative officials or even judges, act as the final arbiters of justice. The everyday legal system was not enough. For a German liberal legalist such as Arnold Brecht, the answer to the majoritarian difficulty was to specify certain fundamental constitutional rights that could not be changed by any democratic body.154 For Rawls, writing in less dark times, these expressions of conscientious objection to certain laws suggested that in a ‘‘reasonably just’’ constitutional democracy institutions and individuals can check one another. The institutions can help shape the individual’s moral sense, while the individual can and should initiate change by disobeying unjust laws and practices. At the same time, because the law breaking is done on the grounds that the principles of justice have been violated, civil disobedience relies not on one’s personal morality but on the community’s sense of right. Hence it presumes not only a reasonably just constitution but also a shared public morality.

Individual Autonomy and the Modern American State

211

In his essay on civil disobedience, the first public version of which Rawls delivered at the annual American Political Science Association meeting in 1966, Rawls argued that because the majority can be wrong (‘‘more or less willfully’’), minorities have a right, even a duty, to disobey unjust laws and appeal to the conscience of the citizenry at large.155 ‘‘In a democratic society each man must act as he thinks the principles of political right require him to. . . . There can be no morally binding legal interpretation of these principles, not even by a supreme court or legislature. Nor is there any infallible procedure for determining what or who is right.’’156 Rawls even countenanced ‘‘forceful resistance’’ in certain cases: ‘‘We are not required to acquiesce in the crushing of fundamental liberties by democratic majorities which have shown themselves blind to the principles of justice upon which justification of the constitution depends.’’157 Although he did not cite Martin Luther King, Jr., until A Theory of Justice, Rawls’s argument for civil disobedience as an appeal to the conscience of the majority by a minority closely resembled King’s argument in ‘‘Letter from Birmingham Jail.’’ Both sought to explain how one could maintain fealty to the rule of law ideal in general while refusing to obey particular laws. The legitimacy of the legal and political structure as a whole could never be in doubt for civil disobedience to retain its moral authority.158 Rawls insisted that the final say on matters of justice belonged to ‘‘the electorate as a whole’’ and it is to this group that the civil disobedience is addressed as a legitimate act.159 As with free and regular elections and an independent judiciary, civil disobedience would ‘‘maintain and strengthen just institutions’’ based on the judgments of citizenry.160 Citizens themselves have a responsibility for the legitimacy of the political institutions under which they live, even though, in a reasonably just democracy, they have effectively agreed to subject themselves to a certain amount of coercion. But Rawls remained cautious about political change; he carefully delimited the conditions under which civil disobedience could be fairly employed. Civil disobedience was justified when the state abused its authority by violating the equal liberties of citizenship, which included basic political rights such as voting and access to public office; civil liberties such as freedom of speech, assembly, and conscience; and personal and economic rights, such as the right of one’s person and the right to hold property as well as the right of equality of opportunity. More problematic was civil disobedience as a response to social and economic policy, which, Rawls believed, was subject to greater disagreement and interpretation.161

212

Chapter 5

Rawls also addressed the limits to the rule of law when he took up the issue—first politically and then philosophically—of conscientious objection. In 1966 Rawls led an abortive effort at Harvard to put the Arts and Sciences Faculty on record as opposing the draft system in place during the Vietnam War, a war he called ‘‘unjust.’’162 Rawls introduced a faculty resolution, of which he was a principal drafter, which argued that the 2-S deferment exempting most college students from military conscription was unjust, as it did not, so to speak, work out to everyone’s advantage.163 The resolution contained a lengthy discussion about the draft registration system and its flaws, but the appeal to the faculty centered on the fact that to excuse college students from the draft was to treat citizens unequally and unfairly: ‘‘We do not think that potential contribution to our cultural or economic life is a sufficient ground for deferment. What is at issue is a suspension of basic liberties. In a matter of such gravity, fine calculations of social benefit should not decide between one man and another.’’164 The resolution proposed to replace the deferment system with a national lottery. This was not meant to endorse the existence of a draft, but was offered as a practical suggestion, ‘‘given that conscription is in effect.’’165 Rawls proposed a national lottery as an egalitarian alternative to the unprincipled and erratic practices of the bureaucratic management of the draft. Rawls believed a lottery, besides being fairer, would have the added benefit of simplifying the administration of the draft and thus reducing the use of local draft boards whose arbitrary decisions resulted in serious injustices.166 Ideally, Rawls would ban conscription in almost all circumstances as one of the most coercive and potentially abusive applications of the state’s administrative power. Rawls took this position in talks he gave to Harvard students and faculty when the campus was teeming with student protests in the 1960s and repeated it in A Theory of Justice, where he employed language taken directly from the faculty resolution.167 Rawls also supported conscientious refusal to participate in unjust wars, including the Vietnam War, as a check on state power. Conscientious refusal ‘‘is an affront to the government’s pretensions, and when it becomes widespread, the continuation of an unjust war may prove impossible. Given the often predatory aims of state power, and the tendency of men to defer to their government’s decision to wage war, a general willingness to resist the state’s claims is all the more necessary.’’168 Individual acts could help correct for the inevitable injustices in a constitutional democracy. Such acts of conscience also reinforced the need for a democratic state to justify

Individual Autonomy and the Modern American State

213

inequalities and arbitrary actions and to allow for challenges to its authority even under emergency conditions.

Bringing the Moral Back In Civil disobedience and conscientious objection underscored the importance of individual morality in preserving the legitimacy of state institutions and practices. Yet one of Rawls’s greatest intellectual influences—game theory—possessed, at best, a weak moral psychology. The following passage delineates a utilitarian conception of the person, but it applies equally well to a game theoretic conception: ‘‘Persons [are] locations of their respective utilities . . . sites at which such activities as desiring and having pleasure and pain take place.’’169 This is not a moral but an egocentric rendering of a person. Egocentrism is the primary characteristic of players in games of social choice—indeed the central project of game theory is to explain how such inner-directed souls might be induced to cooperate not in spite but because of their self-centeredness. By contrast, in his ‘‘game’’ of constructing a just society, Rawls insisted that the citizens choosing principles of justice were not only ‘‘mutually self-interested’’ and ‘‘rational,’’ but also operated under the constraints of ‘‘having a morality.’’170 In the end, acknowledging the moral complexity of human beings was more important to Rawls than maintaining the purely self-interested conception of choice found in game theory and in much of utilitarianism.171 Without a moral sensibility, Rawls believed, it would be hard to account for why citizens would feel bound by the principles of justice or achieve the ‘‘sense of community’’ required for the fairness and ultimately the legitimacy of social and political institutions. To supplement the thin psychology of game theory, Rawls turned to moral psychology.172 Although Rawls had a long-standing interest in moral psychology, it grew stronger throughout the 1950s and 1960s, and his first attempt to systematically integrate some of its tenets into his theory did not emerge until his 1963 essay ‘‘The Sense of Justice.’’173 This aspect of Rawls’s theory has been less often discussed by scholars, but it is crucial to the principled constitutional democracy that he envisioned. One could argue that he transferred the virtue that many statist liberals wished to find in bureaucrats to the citizenry. For Rawls, a moral self was constitutive of constitutional democracy, a ballast against abuse of power and other forms of injustice. Rawls’s move

214

Chapter 5

into the realm of moral psychology was most evident when he left behind his consideration of how and why people would choose the two principles of justice and entered into a discussion of why real (as opposed to hypothetical) people would be moved, on the basis of the two principles, to support or reform political institutions. In the case of the Original Position, and in line with Rawls’s desire to make ‘‘minimal assumptions about human motivation,’’ the moral sensibility of individuals was not very demanding.174 It entailed ‘‘the capacity for the natural attitudes of love and affection, faith and mutual trust, which ‘‘[appear] to be universal.’’175 In addition, Rawls did not want to make the circular argument that the principles of justice were merely an artifact of morally just individuals. Hence moral virtue in the Original Position was less of a psychological characteristic than an institutional one. People’s consciences, or ‘‘moral feelings,’’ were abstracted into impersonal rules that embodied the concept of morality by ensuring fair procedures and the equality of persons. It was enough under these circumstances for the hypothetical contractors to have ‘‘the capacity for a sense of justice,’’ itself a natural characteristic of virtually all people.176 A minimal ability to reason and the possession of basic human emotions are sufficient to judge which principles of justice would be preferable for ordering a just society. But this same capacity was not necessarily adequate to convince people to act in accordance with the principles. For this, Rawls felt it necessary to postulate a more complex moral self. With the turn to moral psychology at this point in his argument, Rawls tacitly acknowledged, as Rousseau had before him, that law-like formulations, such as general principles, are ‘‘psychologically ineffective,’’ in the words of Judith Shklar. They can ‘‘condition only external behavior.’’177 What, then, could be the basis for an affective attachment to a just society? To generate support for abstract propositions is one thing. It would seem rational to have as a guiding principle, for example, a respect for human life. Yet, in a nearly just society, to account for allegiance to concrete institutions and practices, for individual sacrifice and collective action, a degree of psychic motivation and adequate socialization is required. Political obligation could rest neither on self-interest alone nor on charismatic political authority, nor even on loyalty to a group (for example, a class or association); it required proper moral development as well. The concept of a moral personality ought to be seen, in part, as an attempt by Rawls to locate a basis for political will in the citizenry: citizens must be motivated to change society not just know that they should. In one

Individual Autonomy and the Modern American State

215

of his last works, Rawls, like the German legalists, connected his recognition of the importance of political will to the events that led to the collapse of the Weimar Republic. Modern Germany, he noted, was emblematic of a particular kind of challenge for liberal democratic theory. From 1870 to 1945, Germany was blessed with ‘‘reasonably favorable conditions [for liberal democracy] . . . economic, technological, and no lack of resources, an educated citizenry and more,’’ but lacked ‘‘the political will for a democratic regime.’’178 In other words, institutional and social conditions of possibility can exist formally, or nominally, while liberal democracy as a substantive matter remains absent. The United States was potentially a candidate for a similar analysis. According to Rawls, one might ‘‘say the same of the United States today, if one decides our constitutional regime is largely democratic in form only.’’179 By this logic Nazism and the subordination of African Americans represented only the most extreme examples of what an absence of democratic political will could yield. By ‘‘political will’’ Rawls meant all of the factors that motivate citizens to attempt to reform or even overthrow unjust institutions and to remain vigilant about those that are already just (many of which went well beyond his theory of justice). These factors included ‘‘a society’s political culture and traditions, its religious and ethnic composition, and much else.’’180 Rawls’s efforts to devise a moral psychology appropriate for democratic citizens revealed that the moral personality necessary for a constitutional democracy to function well might not be universal. Indeed, in pursuing what one might call a theory of liberal guilt, Rawls found himself in a world of social interaction and intersubjectivity. Rawls began with a ‘‘natural’’ sense of justice, but then turned to social institutions, which were necessarily culturally bound. The civic motivation required to realize and sustain a just society was not something that could be achieved by a purely individuated self. To construct a more complex view of the person, Rawls relied in his essays on two Frenchmen: the least individualistic and most critical of the social contract theorists, Jean-Jacques Rousseau, and the social psychologist Jean Piaget. He drew on their work to puzzle through the problem of why citizens in a democracy would behave in the way that Rawls thought they, as rational and moral beings, ought to behave and often, though not often enough, did in fact behave. From the outset of his academic career, Rawls sought to arrive at ethical principles without recourse to an absolute moral authority. In one form or another, this was a concern of numerous American intellectuals in reaction

216

Chapter 5

to the crisis of moral universalism precipitated by Nazism. Their solution, however, had been to locate truth in ever-changing human experience. Rawls, as we have seen, sought a basis for morality that was more predictable and less empirical. For Rawls, having a morality meant first of all having a public morality. He dismissed private morality as outside the purview of his concerns, retaining the idea, often associated with liberal theory, that public and private spheres could be separated analytically, if not empirically. However, he did so even as he relied upon social psychological ideas about how a ‘‘sense of justice’’ develops initially out of private familial relations. The feminist scholar Susan Moller Okin has argued, with respect to arguments in A Theory of Justice that are little changed from those of his earlier essays, that ‘‘among major contemporary theorists of justice, John Rawls alone treats the family seriously as the earliest school of moral development.’’181 Even so, Rawls makes little theoretical use of this fact, and it is left up to scholars such as Okin to develop it.182 Rawls was not concerned with the morality of institutions that did not seem to him to have a public dimension so that he might avoid the treacherous waters of a comprehensive moral theory. In this search for a nontranscendent morality Rawls relied heavily on the judgments of ordinary citizens as distinct from the expert-driven decision making of the administrative state. In particular, Rawls sought to arrive at moral principles through the device of the competent judge, that is, the kind of person whom ‘‘we call ‘reasonable.’ ’’ By definition, a competent judge reasons from concrete and ‘‘considered’’ moral judgments to more abstract principles. Rawls’s principles of justice, not surprisingly, turned out to be ‘‘implicit in the considered judgments of competent judges.’’183 Rawls’s competent judge is utterly distinct from the utilitarian analogue of the ‘‘impartial spectator’’ who calculates the rules for maximizing the sum of individual desires apart from citizens’ considerations. But this is not the only work the argument is doing. To sketch out moral development, Rawls wished to limit the sociological material from which he would draw upon to that which was most universalizable and least anthropological. Rawls contrasted his immanent approach to morality with that of ‘‘ideology.’’184 Ideologies can make no claim to be moral because their truth claims do not rely on rational, intuitive judgments and the principles these would yield. Instead, as with the social sciences, which predominated in the specialized administrative state, an ideology predetermines what is morally correct from the standpoint of

Individual Autonomy and the Modern American State

217

a particular social position. It lacks the representativeness of the competent moral judge and the dynamism of reflective equilibrium. Ideology thus takes on an authoritarian cast and distorts the process of moral education. ‘‘Ideologies, of whatever type, claim a monopoly of the knowledge of truth and justice for some particular race, or social class, or institutional groups; competence is defined in terms of racial and/or sociological characteristics which have no known connection with coming to know.’’185 Ideology’s authoritarian source of truth claims was not Rawls’s only concern; he was also bothered by the fact that ideologies were grounded in the particularism of groups, as shown most clearly by Nazism. In contrast to the moral authority of select groups preferred by ‘‘ideologies,’’ the characteristics of competent moral judges ‘‘can . . . belong . . . to men everywhere.’’186 To reject ideological indoctrination was to extract the authorship of a just society from a self-appointed group and place it back in the hands of individuals who would collectively and voluntarily impose just institutions on themselves. To do this Rawls required a human psychology that was not simply rational, but also moral.187 When Rawls switched to an affective moral disposition, he effectively moved outside of his hypothetical construct.188 He was no longer concerned with the conditions under which people could agree on principles of justice. Instead he focused on the conditions under which they would abide by them and use them to evaluate their society. Rawls in a sense distinguished between what might be called a morality of founding and a morality of normal politics. The latter refers to the moral disposition that Rawls felt was required for a citizen to feel ‘‘bound to act upon’’ principles that ordered institutions or were the basis of the ‘‘reform of existing ones.’’189 More than a prudential calculation, the sense of justice was a result of people’s moral feelings, natural in the first instance but nurtured through the process of psychological development. One might believe in the principles in the abstract but still be unable to bring oneself to act upon them in concrete situations.190 The significance of this distinction is that motivation in the real world requires a kind of ‘‘moral learning’’ that can be wrought only by social institutions—families, schools, and so on—while the capacity for a sense of justice that informs the parties in the Original Position is innate. Perhaps because Rousseau made moral appreciation central to a functioning citizenry, Rawls drew substantially on his writings in elaborating his scheme of moral development, distinguishing himself from modern

218

Chapter 5

liberalism’s rejection of Rousseau for his authoritarian tendencies.191 Again setting up a hypothetical construct, this time one by which he effectively imagined the process of one’s acquisition of moral feeling in a just society, Rawls argued that there were three stages of moral development, all of which were predicated upon guilt as a motivation for doing what is right. Drawing on Piaget’s classic work on the moral development of children, Rawls labeled the three stages authority guilt, association guilt, and principle guilt. In the first, children feel guilty when they disobey their parents since ‘‘the liking of what preserves us is instinctive.’’ Rawls contrasted this guilt complex to a rational calculation to obey one’s parents in return for security.192 The next form of guilt—association guilt—is the guilt one feels as a participant in any scheme of social cooperation, for which some sort of friendship and trust are necessary. The effect of these relations on the individual Rawls likened to a Hobbesian sovereign who presides over and enforces obedience to the rules necessary to preserve a cooperative scheme, especially, not surprisingly, those ‘‘schemes of cooperation known to satisfy the two principles of justice.’’193 The third stage, principle guilt, was the most important in Rawls’s justification of political institutions. This stage shows why we feel guilty and hence do the right thing when the objects of our actions are not persons whom we know. In other words, principle guilt tells us why citizens feel duty bound to take certain actions in a democratic society. ‘‘Given that the attitudes of love and trust, friendly feelings and mutual respect, have been generated in accordance with the two previous psychological laws, then, if a person (and his associates) are the beneficiaries of a successful and enduring institution or scheme of cooperation known to satisfy the two principles of justice, he will acquire a sense of justice.’’194 This sense of justice will manifest itself in one’s willingness to establish and maintain just institutions and to reform those that are unjust. Here Rawls ensnared himself in a trap similar to that of Rousseau before him: right institutions are necessary to instill the sense of rightness that itself is necessary for setting up and maintaining right institutions. Rousseau’s misguided solution was to posit a charismatic legislator, a kind of civic instructor, who would be ‘‘in a position to change human nature, to transform each individual’’ into good citizens.195 Rawls’s equally problematic answer was that principle guilt, which requires institutions to produce it, is in ‘‘reciprocal relation’’ to the feelings of love and trust that Rawls called ‘‘natural attitudes.’’196 Individuals

Individual Autonomy and the Modern American State

219

are motivated to uphold a just system not only when its institutions meet their ‘‘considered moral judgments,’’ but also when they accord with their emotive life, desires, and affective needs. Having moved beyond the natural capacity for justice, citizens continue to develop a moral sense out of their experiences of love and, eventually, cooperation. On this point Rawls was indebted to Piaget, who contended that children acquire a moral sense by learning ‘‘cooperation and mutual respect’’ in the course of playing games. They learn that competition and the pursuit of self-interest are acceptable only within the bounds of agreedupon rules or standards. Had Rawls come full circle to rely once again on games as a model for citizenship and justice? Only if all games are created equal. Piaget emphasized the cooperative spirit and reciprocity involved in playing games, while game theory was not above heralding the duplicity that can sometimes be required to win. Finally, for Piaget, the rules of the game act as guarantors of fairness and teach children that impartiality is a key component of morality. All of this resembled Rawls’s society of ‘‘fair cooperation.’’197 Ultimately, Rawls believed, the public context in which one finds oneself will have a bearing on one’s moral life. Just institutions matter not only to more abstract questions of rights and duties and the distribution of resources but to what kind of citizen one is. Yet one more reason why justice must trump efficiency: ‘‘In a reasonably affluent democratic society . . . social arrangements irrespective of their efficiency must be reformed if they are significantly unjust.’’198 The role of morality in Rawls’s early work both reflected and reconfigured a strain of critical liberalism that became prominent after World War II. This liberalism entailed a reluctance to rely solely on institutions to ensure a just state and society and to restrain arbitrary power.199 The main problem that had to be solved if one wanted institutions that would guarantee an egalitarian minimum, and that could induce fidelity to the basic social and political structure, was how to theorize the fundamental principles by which those institutions could be justified. These principles could not flow from institutional arrangements alone since they helped to shape those institutions. Nor could they come from purely self-interested egoists. Rawls’s answer was to rely on the collective moral judgment of the citizenry and their implicit consent to live in a reasonably just constitutional democracy. This consent is not only an agreement to abide by the rules and institutions that we impose upon ourselves but one that ought to preserve and

220

Chapter 5

protect the moral legitimacy of constitutionally defined institutions.200 Nevertheless, as in the case of civil disobedience, this consent does not guarantee the legitimacy of any particular law or practice; nor does it imply an absolute duty to obey the dictates of public institutions. With his contractualist theory of justice Rawls tried to fashion not only a sympathetic critique of the modern liberal state but an argument for the importance of sympathetic criticism itself. One can debate whether he succeeded philosophically; unfortunately for liberalism he has not yet succeeded politically.

Epilogue

The conviction that the bureaucratic form of organization is indispensable has long coexisted with doubts about its desirability. —Gerald E. Frug, ‘‘Administrative Democracy: Alternatives to Bureaucratic Forms of Organization’’

From the time the administrative state came to fruition in the 1930s, there have been questions about the legitimacy of its institutions and mode of governance. These questions have been voiced by a variety of critics, but among the most insightful have been those posed by the state’s liberal supporters. This is not to say that the political system as a whole has been under constant attack or that the fundamentals of American constitutional democracy have been seriously threatened. Rather, liberal concerns about the administrative state centered and continue to center on the accretion of power by the bureaucracy and the executive; the delegation, even abandonment, by Congress of much of its lawmaking authority, especially in emergency situations; and the threats to democratic consent that this more hierarchical, secretive, and contingent government has produced. That these debates continue to transpire, even witnessing a revival in recent years, demonstrates the uncertainties of the liberal state and the prescience of the early generations of liberal critics, who warned that the administrative state needed a justification for its rule beyond its ability to respond quickly and effectively in a crisis. To this day, liberal intellectuals (and politicians) generally defend bureaucratic government uncritically or propose technocratic fixes that ignore the deeper structural and conceptual issues that encumber the liberal administrative state and test its legitimacy. For decades, students of public administration rationalized the dominant liberal view of bureaucracy as little more than the acceptance of its inevitability. They dismissed attacks

222

Epilogue

on the administrative state as being ‘‘aimed [not] at the bureaucracy per se, but at the governmental programs administered by the civil servants,’’ programs that were ‘‘too popular’’ to be taken on directly.1 Herbert Kaufman applied this thesis to the period stretching from the end of World War I through the mid-1950s, when, he claimed, most liberals embraced the administrative state, not least the growing number of specialists in Kaufman’s own field of public administration. But this analysis—that criticism of bureaucracy stood in for some other complaint that could not be voiced explicitly—has also been applied to explain everything from anti-biggovernment conservatism to the attacks on statist liberalism by Theodore Lowi, arguably the most influential legatee of the critical liberalism described in this book. However, it cannot account for the more radical critiques of bureaucracy that appeared in the 1960s and that find echoes in the recent antiauthoritarian fulminations of Occupy Wall Street and the Tea Party movement. Nor does it explain critical liberalism itself. I have argued in these pages that there is an important history of critical thinking about the administrative state that cannot be reduced to programmatic, ideological, or partisan differences. The clearest way to grasp this fact is to observe that even some of the most convinced defenders of the modern American state have found significant reasons for concern. As William Scheuerman, a political theorist and contemporary pleader for the return to formal law as a weapon against an antidemocratic bureaucracy, has noted, ‘‘There is nothing manifestly pessimistic or conservative in worrying about how state action can be effectively regulated.’’2 Indeed, the persistent liberal critique of bureaucracy establishes the ongoing challenges of legitimacy faced not only by the administrative state but also by the statist liberalism that has tried with only partial success to defend that state for more than eighty years. To emphasize liberalism’s internal conceptual struggles over the state is to offer a new understanding of the ways that modern liberal thought has been historically contested. In addition, it helps to place in proper perspective the role over the past several decades of a renewed conservatism in injuring the liberal cause. The inability of post–New Deal liberals to come to terms with the tensions produced by a bureaucracy embedded in a constitutional democracy and habituated to emergency rule has been exploited by powerful conservative movements. Yet the triumphs of conservatism are at least as much a symptom of liberalism’s failures as their cause.3 ‘‘The conservative turn did as much to expose the legacy of liberalism as it did to

Epilogue

223

displace it,’’4 the political scientist Stephen Skowronek has remarked. In trying to push through their policy agenda, Skowronek explained, conservatives found themselves having to engage with a hodgepodge of ‘‘convoluted devices’’ that revealed the incoherence of the liberal state. Conservatism has been an important force in weakening liberalism, but perhaps not as important as we have thought. Whatever the dysfunctions of American politics, the revivification of debates over the modern state’s legitimacy issues has not been limited to the United States. According to the French sociologist Pierre Rosanvallon, the legitimacy of the liberal democratic state is precarious today because older legitimating theories, primarily resting on a fictional majority will, no longer correspond with democratic practice. As predicted by earlier liberal critics, popular will, if it finds expression at all, is less likely to do so through the traditional mechanisms of representative government, national elections, and party politics. Rather, in the administrative state, a range of institutions and practices—from constitutional courts to administrative commissions and ad hoc mechanisms for interchange between citizens and governing elites—constantly form and re-form democratic legitimacy. What the sympathetic critics worried about beginning in the 1930s now seems obvious: there is no general public mandate that can be represented by government. Rosanvallon offers a strikingly optimistic view of the capacity of a broad array of governing institutions, including independent, unelected commissions, to establish the kind of legitimacy that he believes the modern state necessitates. Rosanvallon’s argument is less a critique than a proposal for how to exploit the democratic potential of the modern bureaucratic state. Yet his intervention shows that the limits of the administrative state to act democratically and in keeping with the rule of law ideal transcend any given democratic regime.5 Nevertheless, each modern state has its own particular problems with legitimation. The failure of American statist liberalism to establish a coherent, principled justification for administrative hegemony becomes clearer if one takes a longer and broader view of the critiques with which the state has been confronted. In contrast to the stark dilemmas posed by World War II, the late 1940s and 1950s represented a period of vague generalizations about American political culture in which liberal scholars—with rare exceptions such as John Rawls—complained little about the structure and function of state institutions. Instead they worried about the invasiveness and conformism of large organizations, public and private, the threat to

224

Epilogue

individual autonomy of increased mechanization, and the apathy of the American citizen.6 In the 1960s and 1970s, however, many of the liberal concerns raised in the 1930s and 1940s found expression among a range of political thinkers, though none produced anything close to Rawls’s comprehensive theory. Liberal political scientists, sociologists, legal academics, and political theorists were joined by social movements of the left and right. Even a few renegade members of the discipline that grew up as a result of the bureaucratic state—public administration—joined the chorus of discontent.7 The leviathan was officially ‘‘floundering.’’8 Given the continuing expansion of its regulatory, welfarist, and security functions, this should be of little surprise. More remarkable was that the assessments of what was wrong with administrative state largely transcended political ideology. There were, to be sure, differences in emphasis. For conservatives, the administrative state threatened economic and personal liberty; for liberals the danger was to democracy and the public interest. But these distinctions tended to blur at the more general level of diagnostic criteria. The administrative leviathan had become a ‘‘creaking,’’ ‘‘groaning,’’ ‘‘flabby’’ ‘‘monster.’’9 Scholars have adduced several explanations for the resurgence among liberals of critical assessments of the administrative state that began in the 1960s and that has continued intermittently since. Among the most compelling posits the breakdown of pluralist political theory.10 Bereft of the comforting idea of ‘‘minorities rule,’’ as Robert Dahl famously put it, political scientists, legal thinkers, and a handful of economists contended that administrative government was neither responsive nor responsible.11 The administrative state had been ‘‘captured’’ by corporate interests, Congress had abdicated its lawmaking responsibilities, and the executive had either too much or too little power—too much from the vantage point of the growing resort to emergency government begun during the Roosevelt administration but advanced significantly during the Cold War, too little if one focused on the autonomous independent regulatory agencies acting with little accountability.12 Over time, the expanding executive became the more salient concern because, aside from the independent agencies, administrative government was accountable to the executive and was thus a form of executive power. Little in this liberal critique of the administrative state was new, though this fact seemed lost on these latter-day critics. Although sung in a different register, this was much the same song that had been heard at the birth of

Epilogue

225

the modern American state in the 1930s. Hence what scholars have typically identified as a significant alteration in the intellectual discourse about bureaucratic governance might be better thought of as a continuation of a much older sympathetic critique of the administrative state. Such similarities suggest that earlier ideas about the tensions produced by the American administrative state resonated in the context of a larger state from which people received more resources and within which greater power was concentrated in the executive. The continuity in these critiques also suggests that either statist liberalism had changed little or, if it had, those changes had not resulted in significant modifications of administrative governance. One constant that helps to explain this recurring critique was the absence of a principled justification for the administrative state, a legacy, in part, of the emergency conditions in which the new state was consolidated. Such a justification would have had to confront the effects of bureaucracy on democracy, legality, and individual autonomy. New Dealers had explained the administration’s heavy reliance on bureaucracy and its aim to circumvent Congress and the courts by citing problems that required immediate and specialized attention. This consequentialist reasoning held sway as long as the consequences seemed palatable, which was the case for most of the Depression and war. Outside of these emergencies, there remained among most liberals no principled commitment to the state qua state; if it was defended, the need for such a state was assumed rather than justified.13 What was new in the 1960s and 1970s were the attacks by liberals and radicals on the New Deal itself. These focused mostly on the political economy of the New Deal and asserted that it had not been immune from a corporate capitalist takeover of the state. A notable exception to this focus came from the idiosyncratic liberal law professor Charles Reich, who tagged the New Deal with the responsibility for the leviathan state. The New Deal state and its attendant liberal values of ‘‘rationality, order, and organization’’ had to be overcome, not apotheosized, Reich insisted.14 In an offbeat but insightful book, published in 1970, Reich noted that the New Deal had achieved one thing above all else: ‘‘the creation of the public state.’’ However, ‘‘this accomplishment must be assessed, not only in terms of how well it dealt with existing problems, but also in terms of what new problems it created, for any giant structure, never before known in America, was certain to have its own problems to add to those already in existence. The New Deal naturally gave little thought to the dangers of what it was so

226

Epilogue

enthusiastically building, but we may at least raise some of the questions it failed to raise.’’ Reich rehearsed a now familiar litany of questions: how would this discretionary state with its ‘‘rule of the expert’’ affect democratic processes, individual autonomy, and the rule of law? ‘‘What would be the status of individuals in the new organizations, such as labor unions and the social security-welfare system? And how vulnerable was the structure to capture by special interests? Would the regulated become the regulators and use government machinery to help create restraints of trade? Would the new positive government become a grab bag for those seeking economic favors and special privileges?’’15 Among other factors, a rash of regulatory scandals and revelations of bureaucratic incompetence in the 1950s fed doubts about the ability of administrative government to function fairly, democratically, and legally, that is, in accordance with the rule of law ideal.16 For some more searching liberal critics, these problems pointed to a crisis in the authority of public institutions.17 In concrete terms, liberal intellectuals and reformers sought enhanced legal constraints of due process and judicial review, input into administrative decision making from a broader array of groups and individuals, and stronger, more detailed mandates from Congress.18 If critical liberals demonstrated less faith in administrators than their counterparts of the 1930s, they showed a greater degree of trust in the people themselves. It was not the people’s fault if they felt alienated from government. It was in the nature of the bureaucratic state. Direct popular participation in the administrative process became a more attractive solution to the democratic deficit, echoing larger political trends. In the 1930s, thinkers such as Louis Jaffe had sought to open up access to administrative decision making for individuals and less powerful groups, but at the margins of the process and in an advisory capacity. In the 1960s and 1970s, liberal critics placed greater emphasis on direct involvement by the public in policy determinations through public hearings and representation in decision-making bodies. ‘‘The administrative state would be made participatory,’’ in the words of legal historian Reuel Schiller.19 For example, having studied the management of the nation’s forests in the early 1960s, Reich called upon the public to make its views known to the government because the agencies overseeing the forests had too much discretion in devising policies and too little guidance from Congress. The result was ‘‘a wealth of informal influence on the decision-making process but virtually no formal public rights,’’ and little or no concern for the fulfillment of ‘‘democratic

Epilogue

227

ideals.’’20 In some cases the ‘‘place’’ in the federal government that critics reserved for underrepresented groups was not a physical space but a conceptual one. Which assumptions, they asked, ought to underlie a government responsive to a broad spectrum of interests, rather than simply the most powerful? Yet not all troubled liberals were quite so optimistic about citizens’ eagerness to participate in public administration. Many exhibited considerable skepticism as to whether the public actually had any interest in the administrative affairs of state. One could not take for granted that, even if their objective interests were at stake, the public would be concerned enough to exert pressure on administrative agencies or Congress. There may have been a ‘‘campaign by political scientists’’ against the independent regulatory commissions, but was there ‘‘popular support [or] a congressional mandate’’ to do anything differently?21 In part because of the perception of the public’s declining interest in government, another group of liberal critics of the 1960s and 1970s, mostly legal academics, looked to the courts to overcome the distortions of administrative rule. This approach took different forms: pleas for more judicial review of agency decisions and procedures, judicial action to force Congress to include specific mandates in its regulatory statutes, and the development of general principles to guide agency rule making. Few wanted the courts to do Congress’s job for it. It is hard to locate a widespread appeal to ‘‘judicial activism’’ among the liberal critics of the administrative state during these decades. Rather, the courts were to force the other branches of government to adhere to the rule of law. According to Lowi, ‘‘A blanket invalidation under the Schechter rule is a Court order for Congress to do its own work. Therefore the rule of law is a restraint upon rather than expansion of the judicial function.’’22 What ‘‘work’’ did proponents of legalism want Congress to do? To delegate less and to provide clearer standards for policy implementation. Only in this manner could majoritarian will triumph over informal and inevitably lopsided interest group bargaining. And only then could justice prevail. For, as Lowi explained, sounding very much like Rawls, to achieve the moral legitimacy that justice required, a known rule or principle must be set out in advance to guide the actions of political decision makers: ‘‘Liberal governments cannot achieve justice because their policies lack the sine qua non of justice—that quality without which a consideration of justice cannot even be indicated. . . . [Determinations] of . . . justice cannot be made

228

Epilogue

unless a deliberate and conscious attempt was made by the actor to derive his action from a general rule or moral principle governing such a class of acts.’’23 A legislative body was best equipped to devise such a rule, but Lowi counseled that formal law, as opposed to ad hoc administrative rule making, would result only from a joint operation of the judiciary and the legislature. Calling his alternative to administrative governance ‘‘juridical democracy,’’ Lowi argued that Congress had not been drained of its democratic legitimacy because of an activist Court that constrained its power. Rather, it had willingly ceded its power to the administration. The liberal view that the judiciary was to blame for thwarting the popular will was incorrect. The judiciary was no more ‘‘the least democratic branch’’ than any other when considered as part of the political system as a whole. The rule of law, as secured by the courts, ‘‘is no check against democratic forms. The one will not endure without the other.’’24 As a source of formal law—the kind promoted by the German e´migre´s in the 1940s, which had procedural and institutional requisites behind it, which was known in advance, and which conformed to internal rules—the courts could protect democracy by providing legal rules to guide congressional lawmaking. Yet bringing the courts back in where they had been shunned in the 1930s and 1940s did not, in the end, become critical liberals’ preferred means to domesticate the administrative leviathan. Many lost faith in the Supreme Court as it retreated from a temporary assertion of greater control over administrative agencies in the early 1970s. Others clung to the notion of strengthening citizen participation in government. Criticisms of the bureaucratic state have existed for much of the twentieth century in the United States. Rarely, however, are they examined outside a specialized scholarship on public administration. As a result, political liberalism, which nurtured this state, has been kept on the defensive. There are many reasons for this defensiveness, including a lack of meaningful reform in response to liberals’ own critiques and the rise of the new right. But another reason is liberalism’s intellectual struggles over the state and the narrowing of the liberal political imagination they produced. These struggles, as I have tried to show, have defined statist liberalism since the New Deal, when the administrative state was consolidated, claimed by the Democratic Party as its own, and embraced as the heart of the new liberalism. Liberal intellectuals and political actors identified with and supported

Epilogue

229

the bureaucratic state; at times, they tweaked it here and there in the hope that it would better conform with democratic practices, legalistic norms, and the values of fairness and autonomy. But the institutional underpinnings and the basic priorities of the administrative leviathan remained little changed from the beast that had emerged out of the 1930s and 1940s. The modern American liberal state and the statist liberal creed were born in crisis and bear the marks of that traumatic birth today—administrative capture by corporate and financial interests, a lack of coordination in government, an expanding and increasingly unaccountable executive power, a penchant for emergency politics rather than deliberation, and an unwillingness by many liberals to directly confront these problems.25 It did not help statist liberalism’s cause that in the 1960s movement intellectuals of various political persuasions took up many of the concerns first articulated by earlier liberal critics but cast them—wrongly—as alternatives to the statist liberal project or radicalized them to the point where they might just as easily undercut the liberal state as lead to its reform. Indeed all of this sound and fury has so far signified very little in terms of a fundamental rethinking of the American state, with Rawls as the notable exception. Yet even he, by employing ideal theory and often requiring his readers to intuit how his philosophy might translate into actually existing politics, limited his contribution to that of modeling a comprehensive theory that incorporated both the need for bureaucracy and its limitations. Rawls may continue to be mined for a liberal reconceptualization of the bureaucratic state, however evidence abounds that new liberal critiques of the administrative state are emerging. Liberal scholars are again warning of the pitfalls of bureaucratic power.26 Another set of twin crises, this time the attacks of 9/11 and the financial breakdown less than a decade later, has catalyzed this reinvigorated discourse. For example, the constitutional scholar Bruce Ackerman acknowledges that he has rethought the ‘‘constitutional triumphalism’’ that marked his earlier work and was ‘‘the product of the New Deal’s success in adapting classical constitutional forms to express a new activist vision of American government.’’ Now, Ackerman admits, the ‘‘pathologies of the existing system are too dangerous to ignore.’’27 Although Ackerman finds these pathologies to have spread over ‘‘the last generation,’’ some of the illnesses he has diagnosed have etiologies that extend back to the New Deal era. What, Ackerman asks, is the primary danger to this vaunted constitutional tradition? The concentration of power

230

Epilogue

in the executive branch, especially in the presidency, has manifested itself in greater political control over the bureaucracy through an increase in the number and authority of political appointees and the creation of political roadblocks through which administrative decisions must pass. This transformation threatens to heighten ‘‘charismatic extremism and bureaucratic lawlessness’’ and to promote new and more problematic forms of legitimation, including frequent appeals to crisis politics.28 A group of prominent political scientists, working in the historically oriented tradition of American Political Development (APD), has also recently worried that a ‘‘crisis’’ has been brewing that could challenge the state’s ‘‘claims to legitimacy’’ as a representative democracy.29 For the authors of The Unsustainable American State, published at the beginning of President Barack Obama’s first term, the collapse of financial institutions and the ensuing recession reaffirmed an older characteristic of the American state that has long been at the core of the APD literature, its ‘‘comparatively weak administrative capacity.’’ But it also revealed newer legitimation issues grounded in the elevation of discretionary rule making as the main form of governance in the ‘‘policy state.’’30 A growing emphasis on ‘‘discretionary policy making,’’ these political scientists argue, only magnifies the difficulties with this diffuse, often arbitrary, and nontransparent form of political decision making. The contemporary conversation about the American state demonstrates the continuing absence of an enduring justification for administrative governance beyond the invocation of emergency. It also suggests that a larger assortment of liberal scholars may have started to reckon with the liabilities of the administrative state, many of which have roots in an era typically depicted as the apex of the statist liberal project. For too long, the downsides of administrative hegemony have been much discussed but rarely confronted. The need for a far-reaching, executive-centered bureaucracy has yet to be adequately defended. Both liberalism and its state have suffered as a consequence.

Notes

Introduction 1. Ira Katznelson makes a similar point in his powerful analysis of the New Deal state, Fear Itself: The New Deal and the Origins of Our Time (New York: Norton, 2013). 2. Charles A. Beard, The American Leviathan: The Republic in the Machine Age (New York: Macmillan, 1930); Robert M. MacIver, Leviathan and the People (1939; repr., Port Washington, NY: Kennikat Press, 1972), citations refer to the reprint edition. ‘‘For democracy too has taken on the dimensions of Leviathan, though without his terror’’ (5); Waldo R. Browne, ed., Leviathan in Crisis: An International Symposium on the State, Its Past, Present, and Future (New York: Viking, 1946). Franz Neumann, the German e´migre´ legal scholar, chose ‘‘Behemoth,’’ another biblical monster appropriated by Hobbes, for the title of his study of Nazi Germany because in Hobbes’s authoritarian ‘‘leviathan’’ state there existed ‘‘remnants of the rule of law.’’ These were absent, he argued, in ‘‘lawless’’ Nazi Germany. Franz Neumann, Behemoth: The Structure and Practice of National Socialism, 1933–1944, 2nd ed. (New York: Oxford University Press, 1944), 459. For more on Neumann’s thought, see Chapter 3. 3. Other terms scholars use to describe this administrative state, and that I have adopted here, include ‘‘the modern American state,’’ ‘‘the New Deal state,’’ and ‘‘the American Liberal state.’’ The latter is from William J. Novak, ‘‘The Legal Origins of the Modern American State,’’ in Looking Back at Law’s Century, ed. Austin Sarat, Bryan Garth, and Robert A. Kagan (Ithaca, NY: Cornell University Press, 2002), 249–86, 249. 4. Several literatures address this transformation in governance and its accompanying political rationalities: (1) Institutionalist social science centers on changes within state structures and practices. Exemplary of this scholarship is James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government (Cambridge: Cambridge University Press, 1978), 3, 260. (Freedman describes this phenomenon as ‘‘a shift in the center of gravity of governmental powers.’’) See also James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (New York: Basic Books, 1989); Wilson, ‘‘The Rise of the Bureaucratic State,’’ Public Interest 41 (1975): 77–103; and John A. Rohr, To Run a Constitution: The Legitimacy of the Administrative State (Lawrence: University Press of Kansas, 1986). (2) The field of American political development seeks to bring a historical dimension to the understanding of

232

Notes to Page 2

politics and political institutions. The most important study remains Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities 1877–1920 (Cambridge: Cambridge University Press, 1982). See also Lawrence Jacobs and Desmond King, eds., The Unsustainable American State (Oxford: Oxford University Press, 2009); and Kenneth Finegold and Theda Skocpol, State and Party in America’s New Deal (Madison: University of Wisconsin Press, 1995). (3) Legal scholarship tracks the development of administrative law and the administrative process and the political conflicts in which these were embedded. Among the most salient works in this field is a series of law review articles by Reuel Schiller, including a series of important articles by Reuel E. Schiller, such as ‘‘The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law,’’ Michigan Law Review 106, no. 3 (2007): 399–442, and Schiller, ‘‘Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945–1970,’’ Vanderbilt Law Review 53, no. 5 (2000): 1389–1451; and the much older but still useful Robert S. Lorch, Democratic Process and Administrative Law (Detroit, MI: Wayne State University Press, 1969). (4) A literature on ‘‘governmentality’’ inspired by Foucault identifies a shift in the liberal mode of governance in Western democracies more broadly and concomitant transformations in the elaborate justificatory apparatuses of these states. For Foucault’s discussion of governmentality, see Michel Foucault, The Birth of Biopolitics: Lectures at the Colle`ge de France, 1978–1979 (New York: Palgrave Macmillan, 2008). For elaborations on the concept’s applications to liberalism, see Colin Gordon, ‘‘Governmental Rationality: An Introduction,’’ in The Foucault Effect: Studies in Governmentality, ed. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991), 1–51; Andrew Barry, Thomas Osborne, and Nikolas Rose, eds., Foucault and Political Reason (Chicago: University of Chicago Press, 1996); and Nikolas Rose, Powers of Freedom: Reframing Political Thought (Cambridge: Cambridge University Press, 1999). For a lament that the concept of governmentality has not been adequately taken up by ‘‘the historiography of politics and history of political thought,’’ see Martin Saar, ‘‘Relocating the Modern State: Governmentality and the History of Political Ideas,’’ in Governmentality: Current Issues and Future Challenges, ed. Ulrich Bro¨ckling, Susanne Kasmann, and Thomas Lemkee (New York: Routledge, 2011), 35. (5) Finally, there is a recent and growing historical literature on the administrative state. Among the major works are Katznelson, Fear Itself; James T. Sparrow, Warfare State: World War II Americans and the Age of Big Government (New York: Oxford University Press, 2011); Joanna L. Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal (New York: Cambridge University Press, 2012); and David Ciepley, Liberalism in the Shadow of Totalitarianism (Cambridge, MA: Harvard University Press, 2006). The urtext from which all these works, including this one, draw inspiration, is Barry D. Karl’s The Uneasy State: The United States from 1915 to 1945 (Chicago: University of Chicago Press, 1983). 5. I am aware that ‘‘the state’’ is not synonymous with ‘‘the government.’’ I use the term ‘‘administrative state’’ to denote a way of organizing a political association.

Notes to Pages 2–3

233

For the notion that the state, while a myth, is best thought of as a form of association, see David Runciman, ‘‘The Concept of the State: The Sovereignty of a Fiction,’’ in States and Citizens: History, Theory, Prospects, ed. Quentin Skinner and Bo Stra˚th (Cambridge: Cambridge University Press, 2003), 28–38. 6. I use the terms ‘‘sympathetic critics,’’ ‘‘critical liberals,’’ and ‘‘liberal critics’’ interchangeably. 7. On the need for a ‘‘legitimating theory’’—and Max Weber’s failure to address this issue—see Joseph Bensman, ‘‘Max Weber’s Concept of Legitimacy: An Evaluation,’’ in Conflict and Control: Challenge to Legitimacy of Modern Governments, ed. Arthur J. Vidich and Ronald M. Glassman (Beverly Hills, CA: Sage, 1979), 17–48, 44. 8. Unlike some histories of modern liberalism, this is not an effort at recovery of a lost tradition—the one true liberalism that, if revived, will stave off failure. Stories of recovery are valuable in their own right, but one cannot excavate relics of the past and transfer them wholesale to the present. See Nicholas Knowles Bromell’s review essay ‘‘Postwar Liberalism as a Usable Past? The Rewards and Risks of Historical Revision,’’ American Quarterly 59, no. 1 (2007): 179–90. Bromell distinguishes between narratives of ‘‘recovery’’ and narratives of ‘‘renewal.’’ The latter ‘‘can be accomplished only by a rigorous dialectical assessment of [liberalism’s] strengths and weaknesses’’ (190). These liberal critics allow one to do just that. 9. For a comparative analysis of the weakening enthusiasm for the bureaucratic state in recent years, see Ezra Suleiman, Dismantling Democratic States (Princeton, NJ: Princeton University Press, 2003). 10. For an example of how the emergency conditions under which New Deal policies were formulated are now used to delegitimize those policies, see Richard A. Epstein, ‘‘A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation,’’ Yale Law Journal 92, no. 8 (1983): 1357–1408, 1363. 11. Twenty-five years ago Wilson provided an apt description of the vexed politics of the bureaucratic state in Bureaucracy, 10: ‘‘Liberals who want the government to play a larger role in society often either minimize the problems created by bureaucratic rule or assume that problems can be solved by simply spending more money, constructing better facilities, hiring better people, or vesting the clients of these agencies with more rights. Conservatives who want the government to play a smaller role in our lives taunt liberals for their misguided optimism about the nature of bureaucratic rule and urge that bureaucracy be curtailed, but they often apply their critique of bureaucracy inconsistently: ‘Let us have fewer welfare offices but a bigger army.’ ’’ Quoted in Suleiman, Dismantling Democratic States, 310. 12. In fact it shows that the liberal antistatism of this period can be exaggerated. For a brilliant treatment of liberal antistatism that nonetheless overstates its influence, see Ciepley, Liberalism in the Shadow of Totalitarianism. Ciepley contends that by the late 1930s a fear of totalitarianism drove American intellectual and political elites, indeed Americans in general, to turn away from the interventionist state, except in the case of national security. Desmond King and Marc Stears offer a persuasive argument

234

Notes to Pages 3–7

that engagement with totalitarianism could just as easily have led liberal intellectuals to a critical response to state power, rather than to a dismissal of it. The state was ignored not because statism had been rejected in light of totalitarianism but because the threat to the democratic order was seen as emanating from the character of the American people, not from political institutions. See ‘‘The Missing State in Postwar American Political Thought,’’ in Jacobs and King, Unsustainable American State, 124. For an older argument about liberal resistance to the newly powerful centralized state, see Karl, Uneasy State. 13. Theodore J. Lowi, The End of Liberalism (New York: Norton, 1969), 31. 14. For an extreme version of this assessment, in which ‘‘specialists in violence’’ come to dominate the state, see Harold D. Lasswell, ‘‘The Garrison State,’’ American Journal of Sociology 46, no. 4 (1941): 455–68. Most relevant is Lasswell’s assessment of the convergence of civilian and military institutions and practices resulting from the use of the same technology and management practices. Lasswell’s apocalyptic projection also foresaw the crumbling of democracy whereby ‘‘legislatures and elections [would] go out of use’’ (462) because they impeded the ability to respond to imminent danger. A more recent and tempered argument for civilian and military convergence may be found in Michael S. Sherry, America in the Shadow of War: The United States Since the 1930s (New Haven: Yale University Press, 1997), xi. 15. For arguments that late New Deal policies abandoned the more far-reaching reforms pursued in the early to mid-1930s, see Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995); and Steve Fraser and Gary Gerstle, eds., The Rise and Fall of the New Deal Order (Princeton, NJ: Princeton University Press, 1989). 16. On the nostalgia for radical republicanism of critical intellectuals of the fifties and sixties, see Kevin J. Mattson, Intellectuals in Action: The Origins of the New Left and Radical Liberalism, 1945–1970 (University Park: Pennsylvania State University Press, 2002), 13. 17. Pendleton Herring, ‘‘Liberalism in Crisis,’’ Canadian Journal and Economics and Political Science 10, no. 3 (1944): 287–97, 291, 295. 18. John Rawls, ‘‘Introduction to the Paperback Edition,’’ in Political Liberalism (Cambridge, MA: Harvard University Press, 1996), xli; and Rawls, ‘‘The Idea of Public Reason Revisited,’’ University of Chicago Law Review 64, no. 3 (1997): 765–807, 781. 19. Here I stand with Sheldon Wolin, who has condemned ‘‘the fetish of ideological interpretation’’ and ‘‘the tyranny exercised by ideological categories’’ as warping our understanding of political ideas. See his Politics and Vision (London: George Allen & Unwin, 1961), 358. One may defend liberal ideas, for example, without accepting the ‘‘ideology’’ of liberalism, however defined. It follows that the acceptance of certain liberal ideas or concepts need not preclude the rejection of others. In this work, I extract certain threads of liberal thought from larger political tapestries in order to demonstrate the existence of a ‘‘community of preoccupations,’’ Wolin’s alternative to rigid and mystifying ideological categories.

Notes to Pages 7–11

235

20. Max Lerner, It Is Later Than You Think: The Need for a Militant Democracy, rev. ed. (New York: Viking, 1943). The German e´migre´ intellectual Otto Kirchheimer made a similar point in the context of Nazi Germany, citing his principal academic adviser, Carl Schmitt. See Kirchheimer, ‘‘Remarks on Carl Schmitt’s Legality and Legitimacy,’’ in The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, ed. William Scheuerman (Berkeley: University of California Press, 1996), 64–98, 73. 21. Max Lerner, ‘‘The Crisis State,’’ in Browne, Leviathan in Crisis, 278. On the connection between emergency politics and administrative governance under a strong executive, see Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2011); Bruce Ackerman, The Decline and Fall of the American Republic (Cambridge, MA: Harvard University Press, 2010); Bonnie Honig, Emergency Politics: Paradox, Law, Democracy (Princeton, NJ: Princeton University Press, 2009); and William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1994). For a contemporaneous analysis, see Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948; repr., Westport, CT: Greenwood Press, 1979), 286, where Rossiter calls the American presidency a ‘‘potent crisis institution,’’ and chap. 19. 22. I distinguish between a crisis state and crisis politics. Much state-level and New Deal legislation was justified on the grounds of emergency. For a perceptive treatment of the way crisis framed policy, see Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Harvard University Press, 1998). 23. See Katznelson, Fear Itself, for the New Dealers’ positive associations between these two forms of bureaucratized states. 24. Wolin, Politics and Vision, 357. 25. David Riesman, Jr., ‘‘Government Service and the American Constitution,’’ University of Chicago Law Review 7, no. 4 (1940): 655–75, 669. 26. The phrase ‘‘administrative state’’ was rarely used in the United States until the 1940s. German e´migre´s were responsible for using it analytically to delineate a state run by administrators, who had eclipsed their judicial and legislative counterparts. 27. For a classic analysis of bureaucracy and the modern state, see Max Weber, Economy and Society, vol. 2 (Berkeley: University of California Press, 1978), esp. 956– 57, 973–75, 978–80. 28. For a brief but stimulating critique of bureaucratic rationality, see Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990), 76. 29. Indeed, garnering such evidence would be difficult. For example, Bensman notes that what he calls ‘‘pure legitimacy,’’ a belief by members of a polity in the claims or principles of the system under which they live, cannot be empirically measured. It is impossible, Bensman argues, to distinguish compliance based on belief from that

236

Notes to Pages 11–15

based on other reasons, such as coercion, expediency, terror, apathy, or loyalty. Bensman, ‘‘Max Weber’s Concept of Legitimacy,’’ 41, 42–43. 30. Bensman, ‘‘Max Weber’s Concept of Legitimacy,’’ 40, italics in the original. 31. Rose, Powers of Freedom, 7. For a similar argument about the stakes for justification in the modern state, see Ju¨rgen Habermas, Legitimation Crisis (Boston: Beacon, 1975); and Habermas, ‘‘The New Obscurity: The Crisis of the Welfare State and the Exhaustion of Utopian Energies,’’ in The New Conservatism: Cultural Criticism and the Historians’ Debate, ed. and trans. Shierry Weber Nicholsen (Cambridge, MA: MIT Press, 1989), 48–70. See also Claus Offe, ‘‘Democracy Against the Welfare State?’’ Political Theory 15, no. 4 (1987): 501–37. 32. Ackerman, Decline and Fall, 72. 33. This can also be explained in part by the translation into English in 1958 of Max Weber’s essay on the three types of legitimate political authority. Without Weber’s writings, there was no Western discourse of political legitimacy apart from the German legal scholar Carl Schmitt, who, as a supporter of the Nazis, was an unlikely source for American intellectuals, though several of the German refugees discussed here attended his seminars and adopted some of his ideas. On Schmitt, Weber, and the German e´migre´s, see Scheuerman, Between the Norm and the Exception, esp. chap. 5. 34. One of the most thoughtful, if older, texts on the tensions between administrative governance and individual autonomy is Richard B. Stewart, ‘‘The Reformation of American Administrative Law,’’ Harvard Law Review 88, no. 8 (1975): 1669–1813. For a representative text that acknowledges but dismisses the questions about the legitimacy of administrative governance, see Freedman, Crisis and Legitimacy. 35. Kenneth F. Warren, ‘‘We Have Debated Ad Nauseam the Legitimacy of the Administrative State—But Why?’’ Public Administration Review 53, no. 3 (1993): 249– 54. For a compelling rejoinder to Warren, see Theodore J. Lowi, ‘‘Legitimizing Public Administration: A Disturbed Dissent,’’ Public Administration Review 53, no. 3 (1993): 261–64. 36. Grisinger, Unwieldy American State; and Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (New York: Oxford University Press, 2014). 37. Katznelson, Fear Itself, esp. Part II; Sherry, America in the Shadow of War, 503; Sparrow, Warfare State, 259. 38. On the need to separate Nazism and Soviet communism to properly understand American liberalism at midcentury, see Richard A. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999). 39. Carl Joachim Friedrich, The Philosophy of Law in Historical Perspective (Chicago: University of Chicago Press, 1958), 218. 40. Attending to the German e´migre´s also directs one’s attention to the role of legal thought in liberalism and in American political culture generally. Legal ideas and

Notes to Pages 15–18

237

practices are too often cordoned off in separate studies of legal history. For the importance of legal discourse to American political thought, see Rogers M. Smith, Liberalism and American Constitutional Law (Cambridge, MA: Harvard University Press, 1990), 6. For a call to integrate legal history into broader historical narratives, see Novak, ‘‘Legal Origins.’’ 41. For the significance of the German e´migre´s to American political culture at this time, see Wilfred M. McClay, The Masterless: Self and Society in Modern America (Chapel Hill: University of North Carolina Press, 1994). 42. Not in the 1970s, when A Theory of Justice was published, as so many would have it. The outline and much of the substance of Rawls’s theory was in place by the late 1950s; it was filled out in the 1960s and given final form in John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). 43. On the function of social contract theory, see Jeremy Waldron, ‘‘Theoretical Foundations of Liberalism,’’ Philosophical Quarterly 37, no. 147 (1987): 127–50; and Philip Pettit, Judging Justice: Introduction to Contemporary Political Philosophy (London: Routledge and Kegan Paul, 1980). 44. Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Harper & Row, 1978), 43. Chapter 1. Leviathan and Its Discontents 1. I have borrowed this evocative phrase from Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2010), 12. 2. The Commonwealth studies, dedicated to shoring up the legitimacy of national state intervention, focused on state-level government, where it was easier to document the institutional sea change in governance before the 1930s. See, for example, Oscar Handlin and Mary Frug Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774–1861 (New York: New York University Press, 1947); and Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860 (Cambridge, MA: Harvard University Press, 1948). For the justificatory purpose of these studies in supporting the New Deal state, see Harry N. Scheiber, ‘‘Government and the Economy: Studies of the ‘Commonwealth’ Policy in Nineteenth-Century America,’’ Journal of Interdisciplinary History 3, no. 1 (1972): 135–51. As Brian Balogh notes, explaining the thrust of his book on nineteenthcentury national authority, ‘‘I emphasize the national story because it illuminates the patterns that guided government during the twentieth century, and even today.’’ A Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America (New York: Cambridge University Press, 2009), 4. 3. The gold standard among the analyses of the national administrative state in the late nineteenth century is the political scientist Stephen Skowronek’s Building a New American State: The Expansion of National Administrative Capacities 1877–1920 (Cambridge: Cambridge University Press, 1982). Other important works include Jerry L. Mashaw, ‘‘Federal Administration and Administrative Law in the Gilded Age,’’ Yale

238

Notes to Pages 18–19

Law Journal 119, no. 7 (2010): 1362–1472 and his earlier articles pushing administrative law back to the American founding: ‘‘Administration and ‘The Democracy’: Administrative Law from Jackson to Lincoln, 1829–1861,’’ Yale Law Journal 117, no. 8 (2008): 1568–1693; ‘‘Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801–1829,’’ Yale Law Journal 116, no. 8 (2007): 1636–1740; and ‘‘Recovering American Administrative Law: Federalist Foundations, 1787–1801,’’ Yale Law Journal 115, no. 6 (2006): 1256–1344. See also Balogh, Government Out of Sight; William J. Novak, ‘‘The Myth of the ‘Weak’ American State,’’ American Historical Review 113 (2008): 252–72; Kimberly S. Johnson, Governing the American State: Congress and the New Federalism, 1877–1929 (Princeton, NJ: Princeton University Press, 2007); Nancy Cohen, The Reconstruction of American Liberalism: 1865–1914 (Chapel Hill: University of North Carolina Press, 2002); William J. Novak, ‘‘The Legal Origins of the Modern American State,’’ in Looking Back at Law’s Century, ed. Austin Sarat, Bryan Garth, and Robert A. Kagan (Ithaca, NY: Cornell University Press, 2002), 249–86; Richard Franklin Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (Cambridge: Cambridge University Press, 1990); R. C. Chandler, ed., A Centennial History of the American Administrative State (New York: Free Press, 1987); William E. Nelson, The Roots of American Bureaucracy, 1830–1900 (Cambridge, MA: Harvard University Press, 1982). For examples of efforts to push back against this narrative, see Morton Keller, America’s Three Regimes: A New Political History (New York: Oxford University Press, 2007); Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge, MA: Harvard University Press, 1977); and John A. Rohr, To Run a Constitution: The Legitimacy of the Administrative State (Lawrence: University Press of Kansas, 1986). 4. Joanna L. Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal (New York: Cambridge University Press, 2012); Rohr, To Run a Constitution; and Theodore J. Lowi, The End of Liberalism (New York: Norton, 1969). 5. Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1909–1926 (New York: Oxford University Press, 2002), 131–32. On Wilson’s state-building efforts, see David M. Kennedy, Over Here: The First World War and American Society (New York: Oxford University Press, 1980); and Arthur S. Link, Woodrow Wilson and the Progressive Era, 1910–1917 (New York: Harper & Row, 1954). On the retrenchment of the American state after World War I, see the essays in Frasier and Gerstle, eds., The Rise and Fall of the New Deal Order (Princeton, NJ: Princeton University Press, 1989). 6. James Q. Wilson, ‘‘The Rise of the Bureaucratic State,’’ Public Interest 41 (Fall 1975): 77–103, 78. 7. Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (New York: Free Press, 2003), 68, 180–81. 8. To inscribe this arrangement in law, Congress enacted the Tawney Amendment, which prohibited the president from spending funds to form ‘‘any commission, council, or board’’ without congressional approval. Congressional Record 43, no. 3119

Notes to Pages 19–21

239

(1909). Oscar Kraines, ‘‘The President Versus Congress: The Keep Commission, 1905– 1909: First Comprehensive Presidential Inquiry into Administration,’’ Western Political Quarterly 23, no. 1 (1970): 6, 37, 43; Kraines, The World and Ideas of Ernst Freund: The Search for General Principles of Legislation and Administrative Law (Tuscaloosa: University of Alabama Press, 1974), 134; and Jay S. Bybee, ‘‘Advising the President: Separation of Powers and the Federal Advisory Committee Act,’’ Yale Law Journal 104 (1994): 51–128, 63–67. 9. McGerr, Fierce Discontent; Daniel T. Rodgers, ‘‘In Search of Progressivism,’’ Reviews in American History 10, no. 4 (1982): 113–32; and Otis L. Graham, Jr., An Encore for Reform: The Old Progressives and the New Deal (New York: Oxford University Press, 1967), 9. 10. Eldon J. Eisenach, The Lost Promise of Progressivism (Lawrence: University Press of Kansas, 1994). 11. For many progressives, including Croly, this enthusiasm for popular democracy did not extend to African Americans in the South. 12. Kennedy, Over Here, 97. See also Herbert Croly, Progressive Democracy (New York: Macmillan, 1914), 241; Croly, ‘‘Surely Good Americanism,’’ New Republic, November 15, 1922, 295; and Walter Lippmann, Public Opinion (New York: Harcourt Brace, 1922), 297–98. 13. Walter Lippmann, The Stakes of Diplomacy (New York: Henry Holt, 1915), 25. 14. Acceptance of the administrative form became more evident in the 1920s. Ernst Freund, Administrative Powers over Persons and Property: A Comparative Survey (Chicago: University of Chicago Press, 1928), 580. 15. Croly, Progressive Democracy, 365; Croly, The Promise of American Life (New York: Macmillan, 1909), 372; Freund, Administrative Powers over Persons and Property, 102; Freund, ‘‘History,’’ in The Growth of American Administrative Law, ed. Ernst Freund et al. (St. Louis: Thomas Law Book Co., 1923); and Kraines, World and Ideas of Ernst Freund, 113. 16. Croly, Progressive Democracy, 239; and Walter E. Weyl, The New Democracy (New York: Macmillan, 1912), 314–19. 17. Stears, Progressives, Pluralists, and the Problems of the State, 4. See also Walter Lippmann, Drift and Mastery (New York: Mitchell Kennerley, 1914), 160. 18. Croly, Progressive Democracy, 374. 19. James A. Morone, The Democratic Wish: Popular Participation and the Limits of American Government (New Haven: Yale University Press, 1998), 118–27. See also Eisenach, Lost Promise of Progressivism, 129–37; Stears, Progressives, Pluralists, and the Problems of the State, 57–66; and David A. Hollinger, ‘‘Science and Anarchy: Walter Lippmann’s Drift and Mastery,’’ American Quarterly 29, no. 5 (1977): 463–75. 20. Walter Lippmann, A Preface to Politics (New York: Mitchell Kennerley, 1913), 295. 21. Ibid., 255.

240

Notes to Pages 22–24

22. Edward A. Stettner, Shaping Modern Liberalism: Herbert Croly and Progressive Thought (Lawrence: University Press of Kansas, 1993), 58. 23. Jasper Yeates Brinton, ‘‘Some Powers and Problems of the Federal Administrative,’’ University of Pennsylvania Law Review 61, no. 3 (1913): 135–62, 136; Ernst Freund, ‘‘History,’’ in The Growth of the American Administrative Law, ed. Ernst Freund et al. (St. Louis: Thomas Law Book Co., 1923), 9–41. 24. Brinton, ‘‘Some Powers and Problems of the Federal Administrative.’’ Brinton offers numerous examples of the Court upholding congressional delegation of lawmaking powers to administrative entities. On the other hand, the Court frequently struck down social and economic regulations adopted by the states. 25. Nicholas Murray Butler, Why Should We Change Our Form of Government? Studies in Practical Politics (New York: Charles Scribner’s Sons, 1912), viii. 26. On the differences between the progressives and New Deal liberals, in particular with respect to a powerful, centralized state, see especially Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995), 9–10 and passim; William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932– 1940 (New York: Harper & Row, 1963), 37, 58–59, 84–85; and McGerr, Fierce Discontent, xvi, 316–17. 27. James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government (Cambridge: Cambridge University Press, 1978); and Freedman, ‘‘Crisis and Legitimacy in the Administrative Process,’’ Stanford Law Review 27, no. 4 (1975): 1041–76. But see Rohr, To Run a Constitution, for the view that the science of administration was firmly in place before the New Deal. 28. Leo M. Alpert, ‘‘Suits Against Administrative Agencies Under NIRA and AAA,’’ New York University Law Quarterly Review 12, no. 3 (1935): 393–438, 437–38. 29. This is not, I want to be clear, an American exceptionalist argument. To the contrary, it stresses not a unique antipathy toward or fear of the central state, but particular cultural traditions that had to be reckoned with. 30. Samuel Herman, ‘‘The Expert in a Democracy,’’ Journal of Social Philosophy 5, no. 32 (1940): 226. 31. Marshall E. Dimock, ‘‘Forms of Control over Administrative Action,’’ in Essays on the Law and Practice of Governmental Administration, ed. Charles G. Haines and Marshall E. Dimock (Baltimore: Johns Hopkins University Press, 1935), 321. For the influence of totalitarian states on American governance, see Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: Norton, 2013). 32. Max Weber, ‘‘Bureaucracy,’’ in From Max Weber: Essays in Sociology, ed. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 241. 33. See, for example, Fritz Morstein Marx, ‘‘Bureaucracy and Dictatorship,’’ Review of Politics 3, no. 1 (1941): 100–117. Such empirical distinctions do not alone explain the striking way in which the Soviet Union was written out of the ‘‘stories’’ about bureaucratic domination prior to the Cold War. During World War II writers naturally wished to mute any criticism of a major wartime ally. But this does not fully

Notes to Page 24

241

explain the analytical failure of many intellectuals to account for the administrative authoritarianism of the Soviet regime. For example, Carl Friedrich, remarking in 1950 upon comments he had made almost a decade earlier in praise of the ‘‘dictatorial efficiency’’ of certain European regimes, acknowledged that ‘‘of course’’ he had had ‘‘the Fascist powers in mind.’’ Now, however, he could say with certainty that such sentiments ‘‘apply to all totalitarian regimes. . . . I believe that the policy of the Soviet Union since 1945 is similarly honeycombed with the most astounding errors and misjudgments, resulting from an almost complete lack of adequate deliberation upon vital public policies [italics added].’’ An emphasis by liberal academics on Germany to the exclusion of the Soviet Union was not uncommon, and this assumption would invariably shape their thinking during the Cold War. For Friedrich’s revisionist comments, see Carl J. Friedrich, Constitutional Government and Democracy, rev. ed. (Boston: Ginn, 1950), 352–53. On distinctions and lack thereof in the totalitarian imaginary, see also Les K. Adler and Thomas G. Paterson, ‘‘Red Fascism: The Merger of Nazi Germany and Soviet Russia in the American Image of Totalitarianism, 1930s–1950s,’’ American Historical Review 75, no. 4 (1970): 1046–64, 1048; and Abbott Gleason, Totalitarianism: The Inner History of the Cold War (New York: Oxford University Press, 1995). 34. Lindsay Rogers, Freda Forester, and Sanford Schwarz, ‘‘Aspects of German Political Institutions,’’ Political Science Quarterly 47, no. 3 (1932): 321–51. On the bureaucracy as a whole, see Herman Finer, The Theory and Practice of Modern Government (London: Methuen, 1932); Frederick F. Blachly and Merriam E. Oatman, The Government and Administration of Germany (Baltimore: Johns Hopkins University Press, 1928); Carl J. Friedrich, ‘‘The Development of the Executive Power in Germany,’’ American Political Science Review 27, no. 2 (1933): 185–203, discussing the increasing strength and independence of the executive under emergency governance; Fritz Morstein Marx, ‘‘German Bureaucracy in Transition,’’ APSR 28, no. 3 (1934): 467–80; H. Arthur Steiner, ‘‘Fascism in America?’’ APSR 29, no. 5 (1935): 821–30; and Arnold Brecht, The Art and Technique of Administration in Germany Ministries (Cambridge, MA: Harvard University Press, 1940). 35. Dwight Waldo, The Administrative State: A Study of the Political Theory of American Public Administration (New York: Ronald Press, 1948), 10. 36. On the legitimation of ‘‘emergency’’ measures brought about by war, see Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences (New York: Oxford University Press, 2012). Dudziak remarks that it is no longer war itself that creates the conditions of possibility for a politics of the extraordinary, as the Nazi theorist Carl Schmitt put it, but the idea that the country is at war, that it is a time of war. Hence the war does not have to be a literal military conflict. Dudziak seemingly dates this permanent ‘‘war time’’ to World War II, but considering that Roosevelt announced in his first inaugural address that the country was effectively at war, I think it is possible to imagine a period of ‘‘wartime’’ that dates from Roosevelt’s assumption of the presidency to the present day. The emergency of the Depression morphed into the emergency of World War II, which quickly became the emergency of the Cold War,

242

Notes to Pages 25–26

followed by the ‘‘humanitarian’’ wars of the 1990s and then, since 2001, the war on terror. I think it is crucial to appreciate, in addition to Dudziak’s conceptual argument, that the institutional infrastructure—the administrative state—was always there when needed to bolster the concept of ‘‘emergency’’ or ‘‘necessity.’’ For example, see William E. Leuchtenburg, ‘‘The New Deal and the Analogue of War,’’ in Change and Continuity in the Twentieth Century, ed. John Braeman, Robert H. Bremner, and Everett Walters (Columbus: Ohio State University Press, 1964), 81–143; and Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005). Agamben offers an apocalyptic vision of the New Deal, but he is right to note its heavy reliance on emergency power and executive authority. 37. Harold W. Dodds, ‘‘Bureaucracy and Representative Government,’’ Annals of the American Academy of Political and Social Science 189 (1937): 165. 38. James Landis, The Administrative Process (New Haven: Yale University Press, 1938), 14. 39. ‘‘Inaugural Address, March 4, 1933,’’ in The Public Papers and Addresses of Franklin D. Roosevelt, Volume Two, ed. Samuel I. Rosenman (New York: Random House, 1938), 11–16. For a discussion of this speech, see Leuchtenburg, Franklin D. Roosevelt and the New Deal, 41; and Leuchtenburg, ‘‘New Deal and the Analogue of War.’’ H. W. Brands emphasizes Roosevelt’s declarations about wanting to ‘‘reduce the size and intrusiveness of government’’ in The Strange Death of American Liberalism (New Haven: Yale University Press, 2001), 20. While Roosevelt’s rhetoric in the 1932 election certainly gave this impression, this was not his intent once elected president, as signaled in his inaugural address. Nor should his seemingly incessant desire to balance the budget be confused with his willingness to expand the ranks of government. (For a similar pairing of fiscal conservatism and government expansion, see Ronald Reagan.) 40. Administrative governance could be found at the state, regional, and local levels as well as at the center. However, I will concentrate, as did scholars in the 1930s, on the national aspect. 41. Norton E. Long, ‘‘Power and Administration,’’ Public Administration Review 9, no. 4 (1949): 257–64, 261. 42. Max Lerner, It’s Later Than You Think: The Need for a Militant Democracy (New York: Viking, 1939), 20. 43. Theodore Roosevelt, ‘‘The New Nationalism,’’ in The New Nationalism (New York: Outlook Co., 1910), 3–33. On Roosevelt and his advisers’ insistence that the sweeping reforms of the New Deal required a strong state centered in the executive, see Sidney M. Milkis, ‘‘The New Deal, Administrative Reform, and the Transcendence of Partisan Politics,’’ Administration and Society 18, no. 4 (1987): 433–72; and Matthew Dickinson, Bitter Harvest: FDR, Presidential Power and the Growth of the Presidential Branch (Cambridge: Cambridge University Press, 1997). 44. ‘‘Report of the President’s Committee on Administrative Management,’’ in Administrative Management in the Government of the United States (Washington, DC: Government Printing Office, 1937), 32.

Notes to Pages 26–28

243

45. Morone, Democratic Wish, 141. Morone records the number of federal civilian employees as jumping from 605,496 in 1932 to 1,042,420 in 1940 and to 3,816,310 in 1945. (This number declined with demobilization and reconversion after the war. In 1956, for example, the total stood at about 2,350,000.) 46. Ibid., 141. 47. For concerns about ‘‘executive legislation,’’ see Erwin N. Griswold, ‘‘Government in Ignorance of the Law: A Plea for Better Publication of Executive Legislation,’’ Harvard Law Review 48, no. 2 (1934): 198–215; and Erich Hula, ‘‘Constitutional and Administrative Readjustments,’’ Social Research 6, no. 2 (1939): 244–54. 48. Walter Lippmann, ‘‘The Economy Bill,’’ in Interpretations: 1933–1935, ed. Allan Nevins (New York: Macmillan, 1936), 32–33. On the support for the legislation, see Julian E. Zelizer, ‘‘The Forgotten Legacy of the New Deal: Fiscal Conservatism and the Roosevelt Administration, 1933–1938,’’ Presidential Studies Quarterly 30, no. 2 (2000): 331–58, 336; and David M. Kennedy, Freedom from Fear: The American People in Depression and War, 1929–1945 (New York: Oxford University Press, 1999). 49. Grisinger, Unwieldy American State, 162; and Richard Polenberg, Reorganizing Roosevelt’s Government, 1936–1939: The Controversy over Executive Reorganization (Cambridge, MA: Harvard University Press, 1966). 50. George B. Shepherd, ‘‘Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics,’’ Northwestern University Law Review 90, no. 4 (1996): 1557–1683; and Polenberg, Reorganizing Roosevelt’s Government. This law, although described by most historians as weak as compared to the initial proposal for reform, did enable—along with a related executive order—the immediate establishment of a presidentially controlled wartime agency, the Office of Emergency Management. On this agency, see James Hart, ‘‘National Administration,’’ APSR 37, no. 1 (1943): 25–34. 51. Katznelson, Fear Itself, 373–79. 52. Lowi, End of Liberalism, 143–56. 53. Cass R. Sunstein, ‘‘Constitutionalism After the New Deal,’’ Harvard Law Review 101, no. 2 (1987): 421–510. 54. Richard Hofstadter makes a related point about the New Deal’s pragmatism and lack of political principles in The Age of Reform (New York: Vintage, 1955), a point also hinted at earlier in The American Political Tradition and the Men Who Made It (New York: Knopf, 1948). But in the later work, Hofstadter, now a ‘‘consensus’’ historian, argued that Roosevelt had not initiated any fundamental ideological break from what he called the Jeffersonian ideology of individualism and ‘‘free-enterprise.’’ C. Wright Mills similarly condemned liberalism (especially in the hands of social scientists) for its piecemeal problem solving based on a methodological pluralism, which was incapable of ranking causes or addressing hierarchical power relations. Mills, following Karl Mannheim, argued that such a methodology fit functionally with the growing administrative state. In regimenting social problems into an overly specialized space, the administrative state disguised the more fundamental causes that underlay

244

Notes to Pages 29–31

social problems and destroyed the possibility of critique. Mills, The Sociological Imagination (1959; repr., New York: Grove Press, 1961), 92–93. 55. Ellis Hawley has argued that some steadfast New Dealers were themselves ambivalent about such a state and that alongside rationales for bureaucratizing government existed four ‘‘anti-bureaucratic’’ visions, ranging from the idea of a ‘‘business commonwealth,’’ in which government would merely ‘‘coax’’ the private sector into producing needed goods and services, to an ‘‘interest-group commonwealth,’’ an early pluralist model in which ‘‘public administrators would be used to implement the designs of deserving interest groups’’ but real power would ‘‘remain in the hands of politicians and interest-group leaders,’’ thus avoiding ‘‘bureaucratic statism’’ (81). Tellingly, the evidence Hawley cites for New Deal pluralism either predates or postdates the New Deal itself. In addition, by falling into a pro-state/antistate dichotomy, Hawley pits pluralism against statism when no such antagonism existed in the minds of most pluralists. Ellis W. Hawley, ‘‘The New Deal State and the Anti-Bureaucratic Tradition,’’ in The New Deal and Its Legacy, ed. Robert Eden (New York: Greenwood Press, 1989), 81. I believe Hawley overestimates the antibureaucratic ideas among New Dealers when he states that ‘‘much of the New Deal’s administrative apparatus . . . was erected in the name of anti-bureaucracy’’ (84). Cf. Hawley, The New Deal and the Problem of Monopoly (1966; repr., New York: Fordham University Press, 1995). 56. One might add, with Dwight Waldo, that there was no one among the adherents of administrative ideology who did not also ‘‘profess democracy.’’ However, they tended to think of democracy as embodied in the results achieved by putatively democratic institutions, and they certainly did not see it as threatened by the new political order. Waldo, Administrative State, 74–75. 57. Ibid., 6, 68. Nikolas Rose, Powers of Freedom: Reframing Political Thought (Cambridge: Cambridge University Press, 1999), 25. 58. Ernst Freund, ‘‘The Law of the Administration in America,’’ PSQ 9, no. 3 (1894): 403–25, 406. 59. Marver Bernstein, Regulating Business by Independent Commission (Princeton, NJ: Princeton University Press, 1955), 296. 60. Sunstein, ‘‘Constitutionalism After the New Deal’’; and Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Cambridge, MA: Harvard University Press, 1990). See also Walter Gellhorn, Federal Administrative Proceedings (Baltimore: Johns Hopkins University Press, 1941). 61. Waldo, Administrative State; and Dwight Waldo, ‘‘Development of the Theory of Democratic Administration,’’ APSR 46, no. 1 (1952): 81–103, 85. 62. For developments within the Social Science Research Council, see Research in Public Administration: Part I. Report of the Committee on Public Administration of the Social Science Research Council, 1934–1945, by William Anderson. Part II. Research in Public Administration, 1930–1945, by John M. Gaus (Chicago: Public Administration Service, 1945), xi; and Gaus, ‘‘The Social Science Research Council’s Committee on Public Administration,’’ APSR 29, no. 5 (1935): 876–78. See also Daniel R. Ernst,

Notes to Pages 31–32

245

‘‘Willard Hurst and the Administrative State: From Williams to Wisconsin,’’ Law and History Review 18, no. 1 (2000): 1–36. 63. Public Administration Review 1, no. 1 (1940): 1–102. Pendleton Herring also served on the editorial board of this journal. 64. Fritz Morstein Marx, ‘‘Comparative Administrative Law: The Continental Alternative,’’ University of Pennsylvania Law Review and American Law Register 91, no. 2 (1942): 118–36, 118. 65. Many legal scholars dispute the idea of a cohesive realist school (as well as its time of origin). I do not mean to imply anything to the contrary. Morton Horwitz distinguishes, for example, the legal realists of the 1930s from their progressive predecessors, who were much more critical of the state on moral grounds. Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 210. Cf. Neil Duxbury, Patterns of American Jurisprudence (Oxford: Oxford University Press, 2001), chaps. 2–3, esp. 130; and Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973), chap. 3. On the prevalence of legal realists among New Deal lawyers, see Daniel R. Ernst, ‘‘Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915–1943,’’ Law and History Review 11, no. 1 (1993): 59–100; and Jerome N. Frank’s ‘‘Experimental Jurisprudence and the New Deal,’’ a speech before the Association of American Law Schools, reproduced in Congressional Record 78 (1934): 12412–14. Frank, a leading realist, was the general counsel for the Agricultural Adjustment Administration at the time. Frank’s speech offers a fascinating view of the New Deal as of ‘‘necessity’’ experimental in nature. Frank, however, expressed the hope that ‘‘aims’’ or ‘‘principles’’ could supplement the administration’s experimental approach. Crisis conditions, among other reasons detailed here, ensured that hope would remain in vain. 66. William C. Chase, The American Law School and the Rise of Administrative Governance (Madison: University of Wisconsin Press, 1982), 20–21. Max Weber had also noted that the modeling of public bureaucracy on private management was a peculiarly American phenomenon. Weber, ‘‘Bureaucracy,’’ 198. See also Luther Gulick et al., Papers on the Science of Administration (New York: Institute of Public Administration, Columbia University, 1937). 67. Marshall E. Dimock, ‘‘The Development of American Administrative Law,’’ Journal of Comparative Legislation and International Law, Third Series 15, no. 1 (1933): 35–46. In 1934, the American Bar Association established for the first time an Administrative Law Committee. However, Harvard Law School did not begin offering an administrative law course for credit until the 1940s. Chase, American Law School, 61, 136, 145–46. 68. Donald W. Smithburg, ‘‘Political Theory and Public Administration,’’ Journal of Politics 13, no. 1 (1951): 59–69, 67–68; Chase, American Law School. ‘‘Thief in the night’’ is Frankfurter’s phrase in ‘‘Forward: Symposium on Administrative Law,’’ Yale

246

Notes to Pages 32–34

Law Journal 47, no. 4 (1938): 515–18, 517. Frankfurter was instrumental in institutionalizing administrative law as a distinct academic endeavor in the 1930s. Robert L. Rabin, ‘‘Administrative Law in Transition: A Discipline in Search of an Organizing Principle,’’ Northwestern University Law Review 72, no. 1 (1977): 120–45, 120. 69. ‘‘A Federal Administrative Court—Shall We Have It Now?’’ Administrative Law Bulletin 1, no. 3 (1949): 45–48, 47. 70. John Dickinson, ‘‘Political Aspects of the New Deal,’’ APSR 28, no. 2 (1934): 197–209, 202. 71. E. Pendleton Herring, Public Administration and the Public Interest (New York: Russell & Russell, 1936), 379 (referring to the ‘‘fiction’’ of checks and balances and the separation of powers) and passim; Alfred M. Bingham, The Techniques of Democracy (New York: Duell, Sloan and Pearce, 1942), 143; Robert J. Harris, ‘‘The Decline of Judicial Review,’’ Journal of Politics 10, no. 1 (1948): 1–19; and Edward S. Corwin, ‘‘Social Planning Under the Constitution—A Study in Perspectives,’’ APSR 26, no. 1 (1932): 1–27. 72. A notable example of this antilegalism may be found in Fred Rodell, Woe unto You, Lawyers (New York: Reynal and Hitchcock, 1939). Rodell, an influential legal realist at Yale, believed that most legal conflicts ought to be handled not by lawyers but by ‘‘specialists,’’ such as engineers and accountants, and by commissions, modeled on the adjudicatory system of the Interstate Commerce Commission, rather than on adversarial courts. For example, each state could have a ‘‘Killing Commission’’ to mete out the laws of murder and manslaughter. 73. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 232. This anticonstitutionalism extended to the public as well. In the newly minted Gallup and Fortune polls of 1940, one question seeking to determine the public’s opinion on the ‘‘American Form of Government’’ found that 19.2 percent of those surveyed agreed with the following statement: ‘‘The Constitution has served its purpose well, but it has not kept up with the times and should be thoroughly revised to make it fit present-day needs.’’ ‘‘Gallup and Fortune Polls,’’ Public Opinion Quarterly 4, no. 2 (1940): 339–63, 349. 74. Thomas K. Finletter, Can Representative Government Do the Job? (New York: Reynal & Hitchcock, 1945), 110, quoted in Charles S. Hyneman, Bureaucracy in a Democracy (New York: Harper & Brothers, 1950), 578. Applauding the ‘‘restraint and reasonableness’’ of Finletter’s book (which contained a forward written by Senator Robert F. Wagner), Hyneman contrasted it with Henry Hazlitt’s A New Constitution Now (New York: McGraw-Hill, 1942), which called for the institution of a ‘‘clean slate’’ in American government, and with Caleb Perry Patterson’s Presidential Government in the United States: The Unwritten Constitution (Chapel Hill: University of North Carolina Press, 1947), which inhabited ‘‘an imaginary world’’ (578). On the plethora of texts calling for far-reaching constitutional change, see also Peter Drucker, ‘‘A Key to American Politics: Calhoun’s Pluralism,’’ Review of Politics 10, no. 4 (1948): 412–26, 423.

Notes to Pages 34–38

247

75. For arguments to increase the powers of the presidency through radical governmental reform, see Purcell, Crisis of Democratic Theory, 127. 76. William Y. Elliott, The Need for Constitutional Reform (New York: McGrawHill, 1935), 9–10. 77. James Hart, ‘‘The President and Federal Administration,’’ in Haines and Dimock, Essays on the Law and Practice of Governmental Administration, 91. 78. Ordway Tead, The Case for Democracy (New York: Association Press, 1938), 77–80. More attenuated support for changing the Constitution—in this case to effect greater ‘‘political responsibility’’ diluted by the separation of powers—continued well into the 1940s. See, for example, Carl Becker’s Freedom and Responsibility in the American Way of Life (New York: Knopf, 1945), 85–88. 79. Karl Llewellyn, ‘‘The Constitution as an Institution,’’ Columbia Law Review 34, no. 1 (1934): 1–40. 80. Ibid., 19. This quotation was first brought to my attention in an article on Llewellyn by the Italian Jewish refugee Max Ascoli, ‘‘Realism Versus the Constitution,’’ Social Research 1, no. 4 (1934): 169–84, 174. 81. Landis, Administrative Process, 46. 82. On the latter, see Bruce Ackerman, We the People: Transformations II (Cambridge, MA: Harvard University Press, 1998). Although Ackerman probably overstates the degree of constitutional transformation that occurred during the New Deal, his implication that the New Deal was revolutionary for the institutional changes it provoked is an important one and is consistent with the analysis here. For perceptive criticisms of Ackerman, see Colin Gordon, ‘‘Rethinking the New Deal,’’ review of We the People: Transformations, by Bruce Ackerman, Columbia Law Review 98, no. 8 (1998): 2029–53. 83. John M. Gaus, Leonard D. White, and Marshall E. Dimock, eds., The Frontiers of Public Administration (1936; repr., New York: Russell & Russell, 1967), 8. 84. Ralph F. Fuchs, ‘‘Concepts and Policies in Anglo-American Law Theory,’’ Yale Law Journal 47, no. 4 (1938): 538–76. 85. Dwight Waldo emphasized the close relationship between public administration and private administration in chap. 3 of Administrative State. 86. The phrase ‘‘canons of efficiency’’ is from the ‘‘Report of the President’s Committee on Administrative Management,’’ 2. The report is quoted in Waldo, Administrative State, 174. 87. James Burnham, The Managerial Revolution (New York: John Day, 1941); Leonard D. White, Trends in Public Administration, (New York: McGraw-Hill, 1933), 7–8; and Brinkley, End of Reform, 38. 88. Landis, Administrative Process, 11–12. On Landis’s fondness for governmental expertise and efficiency, see Thomas K. McCraw, Prophets of Regulation (Cambridge, MA: Harvard University Press, 1984), 213–15. 89. Perhaps reflecting the demoralization of politics during the Roosevelt era, the phrase ‘‘public interest’’ largely replaced the term ‘‘common good.’’ Daniel T. Rodgers,

248

Notes to Pages 38–40

Contested Truths: Keywords in American Politics Since Independence (Cambridge, MA: Harvard University Press, 1988), 209–11. 90. John M. Gaus, ‘‘Changes in the Setting, 1933–1945,’’ in Anderson and Gaus, Research in Public Administration, 119–157, 122–23; Charles E. Merriam, ‘‘Public Administration and Political Theory,’’ Journal of Social Philosophy 5, no. 4 (1940): 293–308, 297–98; Merriam, Public and Private Government (New Haven: Yale University Press, 1944); and Bingham, Techniques of Democracy. 91. See, for example, Judith A. Merkle, Management and Ideology: The Legacy of the International Scientific Management Movement (Berkeley: University of California Press, 1980); and Charles S. Maier, ‘‘Between Taylorism and Technocracy: European Ideologies and the Vision of Industrial Productivity in the 1920s,’’ Journal of Contemporary History 5, no. 2 (1970): 27–62. 92. For the idea that the absence of a consumer culture in the administrative state disempowered citizens, see Paul Hirst, Associative Democracy (Amherst: University of Massachusetts Press, 1994), 164–65. Gerald Frug offers a similar argument about ‘‘the separation’’ between bureaucracies and the citizens they are meant to serve in ‘‘The Ideology of Bureaucracy in American Law,’’ Harvard Law Review 97, no. 6 (1984): 1277–1388, 1277. This essay was of great help for my thinking about the internal contradictions of administrative ideology. 93. H. H. Gerth and C. Wright Mills, ‘‘A Marx for the Managers,’’ Ethics 52, no. 2 (1942): 200–15, 210. 94. Moreover, as Sidney Milkis points out, Roosevelt never fully accepted the instrumentalist or scientistic vision of administrative governance. ‘‘New Deal Politics, Reform, and the Constitution,’’ in Eden, New Deal and Its Legacy, 139. 95. Quoted in Herbert Kaufman, ‘‘Emerging Conflicts in the Doctrines of Public Administration,’’ APSR 50, no. 4 (1956): 1057–73, 1065. 96. Landis, Administrative Process, 23–24. 97. Marshall E. Dimock, ‘‘The Role of Discretion in Modern Administration,’’ in Gaus, White, and Dimock, Frontiers of Public Administration, 50. 98. For a standard New Deal position, see Landis, Administrative Process, 51–52. For a more nuanced approach to the problems and possibilities of interest group representation, see Avery Leiserson, Administrative Regulation: A Study in Representation of Interests (Chicago: University of Chicago Press, 1942). On the legislative initiatives to include private groups in public policy making, see Leiserson’s introduction. 99. ‘‘Presidential Statement on the N.I.R.A.,’’ in The Public Papers and Addresses of Franklin D. Roosevelt Volume Two, ed. Samuel I. Rosenman (New York: Random House, 1938), 251. The Supreme Court also emphasized the broad social impact of the economic crisis and hence the need for a national policy in the interest of ‘‘the general welfare.’’ In Helvering v. Davis, 301 U.S. 619 (1937), Justice Cardozo’s opinion upholding a federal tax for old-age pensions referred to the Constitution’s General Welfare Clause and noted the ‘‘the solidarity of interests that once may have seemed to be divided.’’

Notes to Pages 40–42

249

100. Gaus, ‘‘Changes in the Setting,’’ 125. 101. Public opinion research, pioneered in the 1930s, contributed to the idea that there was a measurable public that could be represented and its interests discerned. On the rise of survey research in this period, see Sarah E. Igo, The Averaged American: Surveys, Citizens, and the Making of a Mass Public (Cambridge, MA: Harvard University Press, 2008); and Melvin G. Holli, The Wizard of Washington: Emil Hurja, Franklin Roosevelt, and the Birth of Public Opinion Polling (New York: Palgrave, 2002). 102. Rodgers, Contested Truths, 204. 103. For the legislature as a site of collective action, see Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999), 156. 104. Hart, ‘‘President and Federal Administration,’’ 62–63. In The Dignity of Legislation, Waldron identifies a similarly contemptuous attitude towards Congress within contemporary jurisprudence: ‘‘The danger of focusing on legislation is that, as a source of law, it is all too human, all too associated with explicit, datable decisions by identifiable men and women that we are to be subject to these rules rather than those’’ (24). Waldron attributes this attitude specifically to legal academics and jurists, who, he argues, privilege judge-made law. Meanwhile, ‘‘Political scientists know better, of course’’ (2). However, the history of the 1930s shows that the belief in the inferiority of legislative institutions, if not legislation itself, was shared by political scientists and legal theorists alike, though for the political scientists the preferred institutions and rules were not courts and judicial opinions but administrative agencies and rule making. 105. J. Roland Pennock, Administration and the Rule of Law (New York: Rinehart, 1941), 8; and Marshall E. Dimock, ‘‘The Study of Administration,’’ APSR 31, no. 1 (1937): 28–40, 37. 106. George A. Graham, ‘‘Trends in Teaching of Public Administration,’’ Public Administration Review 10, no. 2 (1950): 69–77, 70. 107. Administrative legislation is commonplace today and remains the norm in parliamentary systems. Such systems entail a close relationship between the executive and the executive’s party in the legislature. The system of checks and balances established in the United States was a conscious rebuke to such collusion. 108. Friedrich, Constitutional Government, 297. Interestingly, social scientists employed the term ‘‘administrative legislation’’ also in relation to the style of governance exhibited by Hitler’s regime: ‘‘Hence we may characterize the Fascist style of dictatorship as the highly efficient and centralized bureaucratic administration of policy under the exclusive control of the head of government. Administrative legislation entirely replaces representative legislation.’’ Steiner, ‘‘Fascism in America?’’ 824–25. 109. Charles Beard and John D. Lewis, ‘‘Representative Government in Evolution,’’ APSR 26, no. 2 (1932): 223–40, 240. 110. Ibid., 143. 111. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). In Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), the Court had recently ruled that

250

Notes to Pages 42–46

Congress had engaged in an improper delegation of power to the executive under the NIRA. However, the Court’s decision voided only one of the National Recovery Administration’s codes concerning the transportation of petroleum products. 112. For a positive reading of the Court’s rejection of the ‘‘emergency’’ rationale by a legal scholar who supported the New Deal and generally opposed the Court’s jurisprudence, see Edward S. Corwin, ‘‘The Schechter Case—Landmark, or What?’’ New York University Law Quarterly Review 13, no. 2 (1936): 151–90. Worried about the excessive use of power in ‘‘unsettled conditions,’’ such as those of the 1930s, Corwin thought it wise to limit the appeal to extraordinary measures, ‘‘provided the necessary corollary thereof be recognized, namely, an enlarged interpretation of the normal powers of government’’ (155, italics in the original). The other principal argument for striking down the legislation, which the Court would reaffirm in United States v. Butler, 297 U.S. 1 (1936) before abandoning it in 1937, concerned the limits of the scope of Congress’s power over interstate commerce. The Court held that the regulation of wages and hours was not within that power. 113. Carter v. Carter Coal Company, 298 U.S. 238 (1936). 114. Robert G. McCloskey, The American Supreme Court, 3rd ed. (Chicago: University of Chicago Press, 2000), 104. In the early 1930s, the Court, citing emergency conditions, upheld a variety of government interventions into the economy, albeit usually with bare five to four majorities and at the state level. See Robert L. Rabin, ‘‘Federal Regulation in Historical Perspective,’’ Stanford Law Review 38, no. 5 (1986): 1189–1326. 115. Hart, ‘‘President and Federal Administration,’’ 77; and Gellhorn, Federal Administrative Proceedings, 13, 143, and passim. 116. Pennock, Administration and the Rule of Law, 43. 117. Thurman W. Arnold, ‘‘Trial by Combat and the New Deal,’’ Harvard Law Review 47, no. 6 (1934): 913–47, 937. 118. Pennock, Administration and the Rule of Law, 21. 119. See, for example, Charles Reich, Bureaucracy and the Forests (Santa Barbara, CA: Center for the Study of Democratic Institutions, 1962); and Lowi, End of Liberalism. 120. Gaus, White, and Dimock, Frontiers of Public Administration, 112, 65. 121. David M. Ricci, The Tragedy of Political Science (New Haven: Yale University Press, 1984), 94. 122. Graham, ‘‘Trends in Teaching Public Administration,’’ 70. 123. Edward S. Corwin, ‘‘The President as Administrative Chief,’’ Journal of Politics 1, no. 1 (1939): 17–61; Gaus, ‘‘Changes in the Setting,’’ 129; and Hart, ‘‘President and Federal Administration,’’ 72. 124. W. Brooke Graves, Public Administration in a Democratic Society (Boston: D.C. Heath, 1950), 37. 125. Lindsay Rogers, Crisis Government (New York: Norton, 1934), 17, 131.

Notes to Pages 46–48

251

126. Milkis, ‘‘New Deal, Administrative Reform, and the Transcendence of Partisan Politics,’’ 437. Milkis is persuasive in suggesting that Roosevelt eschewed party politics in favor of ‘‘nonpartisan executive administration’’ (437). He makes a strong case as well that Roosevelt sought power not for power’s sake but as an effective means of governance to advance his policy objectives, not least a redistribution of wealth. Milkis also asserts that Roosevelt and the New Dealers were ‘‘intent upon expanding the role of liberal democracy and making it more responsive to popular demands’’ (441). Yet Milkis offers little evidence that political reform of this sort was important for Roosevelt and the New Dealers. Nor does he discuss whether these two goals—a fairer distribution of economic resources and responsiveness in government—were reconcilable. Clearly, they are not fully compatible, and to the extent that Roosevelt and his acolytes in public administration sought both, they were more far more concerned to achieve their economic objectives. 127. On the other hand, Gunnar Myrdal, the great student of the American South and race, argued that overreliance in the United States on elective office for administrative positions at the state and local levels disproportionately hurt African Americans because it reinforced white supremacy and black disenfranchisement, which Myrdal felt would be mitigated by an appointive ‘‘independent civil service.’’ See Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper & Brothers, 1944), 1:435. 128. Congress adopted a significantly scaled down version of the reorganization bill in 1939. One reason for the timing of the president’s committee was to ensure that the White House could commandeer the process of executive reorganization that the Senate had initiated in 1936 with its Select Committee to Investigate the Executive Agencies. Graves, Public Administration, 22–23; Barry D. Karl, The Uneasy State: The United States from 1915 to 1945 (Chicago: University of Chicago Press, 1983), 156–58; and Grisinger, Unwieldy American State, 17–18. According to one scholar, Roosevelt’s executive and judicial reorganization plans helped fuel the association, even among some liberals, between New Deal governance and totalitarianism. David Ciepley, Liberalism in the Shadow of Totalitarianism (Cambridge, MA: Harvard University Press, 2006), 18, 128–140. 129. Milkis, ‘‘New Deal, Administrative Reform, and the Transcendence of Partisan Politics,’’ 446–47. See also Barry D. Karl, Executive Reorganization and Reform in the New Deal: The Genesis of Administrative Management, 1900–1939 (Cambridge, MA: Harvard University Press, 1963); and Polenberg, Reorganizing Roosevelt’s Government. 130. Marshall E. Dimock, Modern Politics and Administration: A Study of the Creative State (New York: American Book Company, 1937), 143. Tellingly, Carl Friedrich remarked as late as 1950 that insofar as he knew, no book-length study existed on ‘‘the central function’’ of deliberation in the legislature. Friedrich, Constitutional Government and Democracy, 637. 131. In Charles S. Hyneman, ‘‘Administrative Reorganization: An Adventure into Science and Theology,’’ Journal of Politics 1, no. 1 (1939): 62–75, 69, italics added.

252

Notes to Pages 48–49

Hyneman, it should be noted, was critical of the sentiments expressed by the author he cites in this passage. 132. Ibid. 133. John Stuart Mill made a similar distinction between politics (‘‘talking’’) and administration (‘‘doing’’). The talking ought to be done by legislative bodies, while the ‘‘doing’’ should be the provenance of administrators, ‘‘those high public officers who really conduct the public business.’’ Significantly, among that business Mill included the drafting of laws, which would then be accepted or rejected by parliamentary talkers. Mill quoted in Shirley Robin Letwin, ‘‘Representation Without Democracy: The Webbs’ Constitution,’’ Review of Politics 16, no. 3 (1954): 352–75, 357. Unlike the administrative ideologues of the New Deal period, Mill believed deliberative democracy to be central to constitutional government. For Mill’s views on deliberation, see Nadia Urbinati, Mill on Democracy (Chicago: University of Chicago Press, 2003). 134. Sheldon S. Wolin, Politics and Vision (London: George Allen & Unwin, 1961), 410. Wolin cites Herbert Simon, a well-known scholar of public administration, as an exemplar of the ‘‘rationalist’’ school. 135. On the increasing importance of public administration and its relationship to democracy in the 1930s, see Smithburg, ‘‘Political Theory’’; Beard and Lewis, ‘‘Representative Government in Evolution’’; Gaus, White, and Dimock, Frontiers of Public Administration; Herring, Public Administration; Henry A. Wallace, Whose Constitution? An Inquiry into the General Welfare (New York: Reynal & Hitchcock, 1936); Max Ascoli, ed., Political and Economic Democracy (New York: Norton, 1937); and Fritz Morstein Marx, ed., Public Management in the New Democracy (New York: Harper & Brothers, 1940). On the impact of totalitarianism on statist thinking, see Ciepley, Liberalism in the Shadow of Totalitarianism. 136. See, for example, Herbert Hoover, The Challenge to Liberty (New York: Charles Scribner’s Sons, 1934). For other ideological critics, see Alan Brinkley, Voices of Protest: Huey Long, Father Coughlin, & the Great Depression (New York: Vintage, 1983); and Brinkley, End of Reform. 137. A sampling of the literature on business opposition to the New Deal includes Kim Phillips-Fein, Invisible Hands: The Making of the Conservative Movement from the New Deal to Reagan (New York: Norton, 2009); Mark Blythe, Great Transformations: Economic Ideas and Institutional Change in the Twentieth Century (New York: Cambridge University Press, 2002); and Ellis W. Hawley, The New Deal and the Problem of Monopoly (1966; repr., New York: Fordham University Press, 1995). 138. For example, Senator Walter F. George characterized the Fair Labor Standards Act of 1937 as ‘‘bureaucracy run mad.’’ George quoted in Marian D. Irish, ‘‘Recent Political Thought in the South,’’ APSR 46, no. 1 (1952): 121–41. 139. Ira Katznelson, Fear Itself, 373–98. According to Katznelson, the backlash began in the late 1930s when the federalist balance of power appeared to be threatened

Notes to Pages 49–50

253

by labor organizing in the South and the resurfacing of centralized economic planning during the war. 140. For another account of divisions among liberals that focuses on political economy, see R. Alan Lawson, The Failure of Independent Liberalism 1930–1941 (New York: Putnam, 1971). 141. It was under Roosevelt that the term ‘‘liberalism’’ came to be associated with the Democratic Party and hence the New Deal. Less appreciated is Roosevelt’s concerted effort in making it so. In his nominating speech before the Democratic Convention of July 2, 1932, Roosevelt proclaimed that the Democratic Party was ‘‘a party of liberal thought.’’ The Public Papers and Addresses of Franklin D. Roosevelt, 1, 1928–32 (New York City: Random House, 1938), 647. For an astute discussion of the New Deal as a mechanism for building a liberal Democratic Party, see Jason Scott Smith, Building New Deal Liberalism: The Political Economy of Public Works, 1933–1956 (New York: Cambridge University Press, 2009). 142. Lowi, End of Liberalism, x. For contemporaneous statements of this sort, see Fritz Morstein Marx, ‘‘Bureaucracy and Consultation,’’ Review of Politics 1, no. 1 (1939): 84–100. Edward S. Corwin quoted in Gerald Garvey, ‘‘Edward S. Corwin in the Campaign of History: The Struggle For National Power in the 1930’s,’’ George Washington Law Review 34, no. 2 (1965): 219–31, 227. 143. Karl Loewenstein, review of Constitutional Government and Politics, by Carl Friedrich, APSR 31, no. 3 (1937): 956–57. James Burnham predicted the demise of parliamentary democracy in The Managerial Revolution. 144. Vincent M. Barnett, Jr., ‘‘The Supreme Court and the Capacity to Govern,’’ PSQ 63, no. 3 (1948): 342–67, 345. 145. Most pluralists held to a functional rather than a political, or deliberative, understanding of the legislature. On this view, Congress gave access to functional groups that bargained for policies by exerting pressure on legislators. 146. Fritz Morstein Marx, ‘‘Comparative Administrative Law: A Note on Review of Discretion,’’ University of Pennsylvania Law Review and American Law Register 87, no. 8 (1939): 954–78; Smithburg, ‘‘Political Theory’’; Dwight Waldo, ‘‘The Administrative State Revisited,’’ Public Administration Review 25, no. 1 (1965): 5–30, 5–8; and Waldo, Administrative State, 85. 147. Garvey, ‘‘Edward S. Corwin in the Campaign of History,’’ 227. 148. Paul W. Ward, ‘‘Washington Weekly: Nothing But Red Tape,’’ Nation 144, no. 1 (January 2, 1937): 8. On the dominance of technocratic values, see Purcell, Crisis in Democratic Theory; Ricci, Tragedy of Political Science; John G. Gunnell, The Descent of Political Theory: The Genealogy of American Vocation (Chicago: University of Chicago Press, 1993); and Gary Peller, ‘‘Neutral Principles in the 1950s,’’ University of Michigan Journal of Law Reform 21, no. 4 (1988): 561–622. 149. Wallace S. Sayre, ‘‘Trends of a Decade in Administrative Values,’’ Public Administration Review 2, no. 1 (1951): 1–9. 150. Dimock, Modern Politics and Administration, 229, 231.

254

Notes to Pages 50–54

151. Morone, Democratic Wish, 130. 152. Waldo R. Browne, ed., Leviathan in Crisis: An International Symposium on the State, Its Past, Present, and Future (New York: Viking, 1946), xiv. 153. Wolin, Politics and Vision, 314. 154. The phrase ‘‘anxious debate’’ is from Walter Gellhorn, Individual Freedom and Governmental Restraints (1956; repr., New York: Greenwood Press, 1968), 4, citations refer to the Greenwood Press edition. The phrase ‘‘casualness about means’’ may be found in Eric F. Goldman, Rendezvous with Destiny, rev. ed. (New York: Vintage, 1956), 280. On the lack of attention to means, see also Philip Selznick, TVA and the Grass Roots (1949; repr., New York: Harper & Row, 1966), 7, citations refer to the Harper & Row edition. Chapter 2. Democracy and Accountability in the Administrative State 1. Max Lerner, It’s Later Than You Think: The Need for a Militant Democracy (New York: Viking, 1939), 88. 2. E. Pendleton Herring, Public Administration and the Public Interest (New York: Russell & Russell, 1936), 20. 3. In addition to the authors discussed below, see David Riesman, Jr., ‘‘Government Service and the American Constitution,’’ University of Chicago Law Review 7, no. 4 (1940): 655–75, 667, 669–70; Otto Kirchheimer, ‘‘In Quest of Sovereignty,’’ Journal of Politics 6, no. 2 (1944): 139–76, 149–50, 153, 163, 171–73; and Charles E. Merriam, Prologue to Politics (Chicago: University of Chicago Press, 1939), chap. 2, esp. 23, 28, 32. For a contemporary argument on the need to find new mechanisms for expressing political will, see Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity, trans. Arthur Goldhammer (Princeton, NJ: Princeton University Press, 2011). 4. On the 1960s, see Reuel E. Schiller, ‘‘Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945–1970,’’ Vanderbilt Law Review 53, no. 5 (2000): 1389–1451. 5. One notable case along these lines was Humphrey’s Executor v. United States, 25 U.S. 602 (1935), in which the Court circumscribed the president’s removal power for agency appointments. The Court determined that Roosevelt’s firing of a Federal Trade Commissioner on the grounds of political differences was an arbitrary exercise of executive power because no such power was given in the agency’s authorizing statute. See Edward S. Corwin, ‘‘The President as Administrative Chief,’’ Journal of Politics 1, no. 1 (1939): 17–61, 50. 6. James M. Landis, ‘‘Crucial Issues in Administrative Law: The Walter-Logan Bill,’’ Harvard Law Review 53, no. 7 (1940): 1077–1102, 1102. It is often forgotten that the Schechter decision was unanimous. The other major ruling involving the NIRA, Panama Refining Co., et al. vs. Ryan, et al., was eight to one, with Justice Cardozo

Notes to Pages 54–56

255

dissenting on the grounds that the enabling legislation was clear as to the parameters of the president’s power to regulate the transportation of petroleum. 7. Landis, ‘‘Crucial Issues,’’ 1102. This criticism should be distinguished from the more common complaints about the execution of the industrial codes, and their cooptation by big business. Landis was referring to the crafting of the law itself, not its execution. On the latter, see, for example, Eric Goldman, Rendezvous with Destiny, rev. ed. (New York: Vintage, 1956), 269–73; and William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932–1940 (New York: Harper & Row, 1963), 67–68. As Leuchtenburg notes, the investigations focused on the implementation of the codes rather than their formation. The National Recovery Review Board found, for example, that the largest corporations had effectively dictated the codes to the government in their own interests. On the NRA’s inegalitarianism, see Kirchheimer, ‘‘In Quest of Sovereignty,’’ 171–73. 8. Louis Jaffe (discussed extensively below) was one notable exception. See, for example, Louis Jaffe, ‘‘Delegation of Legislative Power: II,’’ Columbia Law Review 47, no. 4 (1947): 561–93, 577–78. 9. In other words, these were problems endemic to American statist liberalism, not simply byproducts of the excesses of the Cold War. 10. Reinhard Bendix, ‘‘Bureaucracy and the Problem of Power,’’ Public Administration Review 5, no. 3 (1945): 194–209, 205. 11. Ibid. See also Philip Selznick, ‘‘An Approach to a Theory of Bureaucracy,’’ American Sociological Review 8, no. 1 (1943): 47–54. 12. ‘‘Report of the Special Committee on Administrative Law,’’ Annual Report of the American Bar Association 63 (1938): 331–68. 13. Louis L. Jaffe, ‘‘Invective and Investigation in Administrative Law,’’ Harvard Law Review 52, no. 8 (1939): 1201–45. Pound’s report (‘‘administrative absolutism’’ and ‘‘Marxian idea’’) is quoted on 1232. 14. Ibid. For Jaffe’s coolheadedness about administrative thought, see Walter Gellhorn, Individual Freedom and Governmental Restraints (1956; repr., New York: Greenwood Press, 1968), 156, citations refer to the Greenwood Press edition. Although some historians have argued otherwise, it seems to me that Jaffe was broadly consistent over time in his concerns about administrative governance. Cf. Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 237–39. McCarthyism, Horwitz argues, drove legal thinkers such as Jaffe to reconsider the importance of the rule of law—at the expense of administrative independence. Reuel E. Schiller makes a similar point, stressing totalitarianism rather than McCarthyism, in ‘‘Enlarging the Administrative Polity,’’ esp. 1404–7. Jaffe’s own recollections suggest more continuity than change in his position on administrative rule. See Louis Leventhal Jaffe, Interview, tape 4, August 17, 1972, American Jewish Committee Oral History Collection, New York Public Library.

256

Notes to Pages 56–59

15. Jaffe, ‘‘Invective,’’ 1235. On Jaffe’s tendency to blame Congress for the policies and practices of administrative agencies, see Schiller, ‘‘Enlarging the Administrative Polity,’’ 1406. 16. Jaffe, ‘‘Invective,’’ 1235. 17. Ibid., 1235–36. 18. Jaffe was among the earliest to pick out such influence as a potential pitfall for administrative governance. It was a crusade he never gave up. See Louis L. Jaffe, ‘‘The Scandal in Television Licensing,’’ reprinted in The Politics of Regulation: A Reader, ed. Samuel Krislov and Lloyd D. Musolf (Boston: Houghton Mifflin, 1964), 231–39. 19. Louis L. Jaffe, ‘‘Law Making by Private Groups,’’ Harvard Law Review 51, no. 2 (1937): 201–53, 211. 20. Ibid., 211. 21. Ibid., 212. 22. Ibid., 247. 23. The legal theorist Robert Hale pioneered this argument with respect to contracts. He contended that no clear-cut distinction existed between public (coercive) and private (voluntary) relations. See Robert Hale, ‘‘Coercion and Distribution in a Supposedly Non-Coercive State,’’ PSQ 38, no. 3 (1923): 470–94; Hale, ‘‘Force and the State: A Comparison of ‘Political’ and ‘Economic’ Compulsion,’’ Columbia Law Review 35, no. 2 (1935): 321–59; and Hale, ‘‘Our Equivocal Constitutional Guarantees,’’ Columbia Law Review 39, no. 4 (1939): 563–94. 24. Jaffe, ‘‘Law Making by Private Groups,’’ 220. On Hale’s view of the pressures exerted by private groups over individuals, see Hale, ‘‘Our Equivocal Constitutional Guarantees,’’ 591; and Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon, 1995), 110. 25. Jaffe, ‘‘Law Making by Private Groups,’’ 234. The Roosevelt administration’s efforts to establish collective bargaining for organized labor constituted an important exception to the general distaste for collective action. 26. Ibid., 253. 27. In fact, the sociologist Philip Selznick pointed out in the first scholarly study of the TVA (discussed below) that both its ideology of local participation and the resultant policy proposals angered officials at other agencies, such as the Department of Agriculture and the Department of Interior. These officials believed that the TVA’s commitment to grassroots democracy was a way of garnering independence from other federal institutions that handled similar policy concerns. See Philip Selznick, TVA and the Grass Roots (1949; repr., New York: Harper & Row, 1966), 262, citations refer to the reprint edition. 28. The programs of the Office of Price Administration and agricultural policy were commonly referred to as the two most developed instances of the provision of formal mechanisms for participation and representation of groups at the local level.

Notes to Pages 59–63

257

See Wallace S. Sayre, ‘‘Trends of a Decade in Administrative Values,’’ Public Administration Review 2, no. 1 (1951): 7–8. 29. Jaffe, ‘‘Law Making by Private Groups,’’ 251, 252. 30. Carter v. Carter Coal Company, 298 U.S. 238 (1936). The Bituminous Coal Conservation Act of 1935 struck down in this decision set up an NRA-style corporatist entity to agree upon matters of wages and prices, competition, and production. 31. Jaffe, ‘‘Law Making by Private Groups,’’ 252. 32. Ibid., 253. 33. Ibid. 34. Selznick, TVA and the Grass Roots, 221. 35. Dale Clark, ‘‘The Farmer as Co-administrator,’’ Public Opinion Quarterly 3, no. 3 (1939): 482–90, 482. Clark worked in the Planning Division of the Agricultural Adjustment Administration under Wallace. See also John D. Lewis, ‘‘Democratic Planning in Agriculture I,’’ APSR 35, no. 2 (1941): 232–49, 234. 36. Clark, ‘‘The Farmer as Co-administrator,’’ 482. 37. Numerous scholars pointed out this diversity. Chief among them was one of key critical liberals of the 1930s, Herring. See Public Administration, 260. 38. Lewis, ‘‘Democratic Planning in Agriculture I,’’ 234. 39. Ibid., 235. According to Lewis, in 1940, about 19,000 farmers sat on county committees and about 51,000 farmers had participated in 6,807 committees throughout the previous year. 40. James Kloppenberg points out that commitments to ‘‘democracy, decentralization, and citizen participation’’ were distinctive attributes of the American as opposed to the European welfare state and contends that ‘‘the idea of deliberative democracy’’ was a mainstream value among political elites in the 1930s and 1940s. See his ‘‘Deliberative Democracy and Poverty in America,’’ in Kloppenberg, The Virtues of Liberalism (New York: Oxford University Press, 1998), 121. 41. Lewis, ‘‘Democratic Planning in Agriculture I,’’ 247. 42. Lewis, ‘‘Democratic Planning in Agriculture II,’’ APSR 35, no. 3 (1941): 454– 69, 456. 43. Ibid., 456, 458. 44. On southern planters’ determination to maintain white supremacy by selecting local administrators from within their own ranks, see Greta de Jong, A Different Day: African-American Struggles for Justice in Rural Louisiana, 1900–1970 (Chapel Hill: University of North Carolina Press, 2002), 92–93. ‘‘The policy of placing New Deal programs in the hands of local elites proved disastrous for black people’’ (93). 45. Lewis, ‘‘Democratic Planning in Agriculture II,’’ 458; de Jong, A Different Day, 93. 46. Frances Harriet Williams, ‘‘Minority Groups and the OPA,’’ Public Administration Review 7, no. 2 (1947): 123–28. Williams is described in the article as a former adviser to the OPA on race relations. See also John L. Afros, ‘‘Labor Participation in the Office of Price Administration,’’ APSR 40, no. 3 (1946): 458–84. For a detailed

258

Notes to Pages 63–65

discussion of the myriad congressional investigations of the OPA and their critical findings about its procedures and enforcement mechanisms, see Joanna L. Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal (New York: Cambridge University Press, 2012), 34–58. 47. Williams, ‘‘Minority Groups and the OPA,’’ 124. 48. Organized labor pushed aggressively for representation in wartime agencies. Notably, Sidney Hillman, president of the CIO, was appointed associate director of the Office of Production Management in 1941. Afros, ‘‘Labor Participation,’’ 458, 461. 49. Williams, ‘‘Minority Groups and the OPA,’’ 124–25. 50. This discussion of problems of participation and parity in farm policy and the OPA should make clear that it was not only the legislative veto utilized by white southerners in Congress that prevented democratization and equity in New Deal programs. White southerners thwarted such efforts at the community level as well, and other entrenched interests blocked participation of minorities in the New Deal elsewhere in the country. 51. Herring, Public Administration, 19. 52. For Herring’s summersaults on the matter of consent, see ibid., 385. 53. Herring explored interest groups in an earlier book titled Group Representation Before Congress (Baltimore: Johns Hopkins University Press, 1929). 54. Fritz Morstein Marx, review of The Impact of War, by E. Pendleton Herring, Annals of the American Academy of Political and Social Science 220 (March 1942): 204. On Herring as a relativist, see Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973), 215–16. (Herring believed that ‘‘absolutes had no place in the politics of democracy’’ [215].) On Herring as an empiricist, see David M. Ricci, The Tragedy of Political Science (New Haven: Yale University Press, 1984), 110–11. (Herring ‘‘accepted the facts as revealed by research and then placed upon them a democratic interpretation’’ [110].) For both these men, it follows that Herring was uncritical of existing political arrangements. John Gunnell notes that Herring was one among many political scientists who ‘‘emphasized that democracy was grounded less in a set of substantive values than in certain institutional processes.’’ John G. Gunnell, The Descent of Political Theory: The Genealogy of American Vocation (Chicago: University of Chicago Press, 1993), 133. In making this claim, Gunnell repeats the fallacy that ‘‘substantive values’’ and ‘‘procedures’’ are an either/or proposition. On the idea that one may house both procedural and substantive commitments under the same democratic roof, see Richard J. Bernstein, ‘‘The Retrieval of the Democratic Ethos,’’ Cardozo Law Review 17, nos. 4–5 (1996): 1127–46. 55. Herring, Public Administration, 343. 56. Numerous chapters in this book had been published earlier in the 1930s as articles in political science journals. For the notion that one can posit a norm without recourse to an absolute, see Douglas Kellner, ‘‘Introduction,’’ in Herbert Marcuse, One-Dimensional Man, ed. Douglas Kellner (Boston: Beacon, 1991), xiv–xv.

Notes to Pages 65–69

259

57. Herring, Public Administration, 3–5, 23–24, and chap. 23. 58. Ibid., 9. 59. Ibid., 343, 5. 60. Ibid., 6. 61. Ibid. 62. John Dewey, The Public and Its Problems (1927; repr., Denver: Alan Swallow, 1954), 73, citations refer to the Alan Swallow edition; and Herring, Public Administration, 28, 379–81, 398–99. 63. Herring, Public Administration, 278. 64. Ibid., 380, 9. 65. Ibid., 379–80. 66. Ibid., vii. 67. Theodore J. Lowi, The End of Liberalism (New York: Norton, 1969), 71. 68. Herring, Public Administration, 217. 69. Ibid., 43. 70. Ibid., 21. 71. Herring, ‘‘Special Interests and the Interstate Commerce Commission,’’ APSR 27, no. 5 (1933): 738–51, 749. Iver Bernstein in the 1950s and Theodore Lowi in the 1960s fleshed out the concept of administrative capture, but its roots lay in the Roosevelt era. 72. Herring, Public Administration, viii. Along with other liberal critics, Herring singled out the NRA as indicative of the extremes of agency capture. The NRA did ‘‘little more than outlaw practices that are frowned upon by the majority of businessmen.’’ Ibid., 213. 73. Herring, Public Administration, 17. For an example of how the disenfranchisement and exclusion of less powerful groups worked in practice, see the discussion of African Americans and the NRA in Patricia Sullivan, Days of Hope: Race and Democracy in the New Deal Era (Chapel Hill: University of North Carolina Press, 2006), 45–46. Sullivan shows how the ‘‘technically democratic’’ code-making process of the NRA excluded African Americans by the rapidity with which it occurred and by abundant use of behind-the-scenes meetings that preceded public hearings and that included representatives from industry and their all-white trade unions but not African Americans. 74. Herring, Public Administration, 379; and Harold W. Dodds, ‘‘Bureaucracy and Representative Government,’’ Annals of the American Academy of Political and Social Science 189 (1937): 166. On the New Deal’s revolt against direct democracy, see Thomas Goebel, A Government by the People: Direct Democracy in America, 1890–1940 (Chapel Hill: University of North Carolina Press, 2002). 75. For a critique of the notion of a democratic legitimacy based on consent rather than deliberation, see Bernard Manin, ‘‘On Legitimacy and Political Deliberation,’’ Political Theory 15, no. 3 (1987): 338–68. Manin criticizes John Rawls for making a

260

Notes to Pages 69–73

similar assumption that citizens have predetermined political wills that do not require a deliberative process to reach full expression. 76. Herring was not heedless of the need for greater participation in administration: ‘‘Democratic government demands that officials act with the consent and cooperation of the governed. . . . There must be representation in administrative agencies as well as in legislative assemblies.’’ Herring, Public Administration, 42. 77. Ibid., 385. 78. Ibid., 5. 79. Ibid., 24. Here Herring does invoke a form of Deweyan experimentalism. 80. Herring, Public Administration, 23–24. 81. Purcell describes a tendency by social scientists such as Herring to collapse the empirical and the normative. He argues that the purpose of this elision was to justify the normative by reference to the empirical—x is, therefore x ought to be. This is somewhat different from the point I am making, which is that Herring seemed to be unsure of how well he thought the bureaucracy was in fact functioning, given how he thought it ought to function. 82. Herring, Public Administration, 397. 83. Ibid., 214. 84. Ibid. 85. Lowi, End of Liberalism, 46. 86. Herring, Public Administration, 386, 387–88, 394. 87. Ibid., 394. 88. Margaret Weir, Ann Shola Orloff, and Theda Skocpol, ‘‘Understanding American Social Politics,’’ in The Politics of Social Policy in the United States, ed. Margaret Weir, Ann Shola Orloff, and Theda Skocpol (Princeton, NJ: Princeton University Press, 1988), 20. See also Ira Katznelson, Kim Geiger, and Daniel Kryder, ‘‘Limiting Liberalism: The Southern Veto in Congress, 1933–1950,’’ PSQ 108, no. 2 (1993): 283– 306; and Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: Norton, 2013). 89. Norton E. Long, ‘‘Public Policy and Administration: The Goals of Rationality and Responsibility,’’ Public Administration Review 14, no. 1 (1954): 22–31, 25, italics in the original. 90. Herring, Public Administration, 215. 91. Ibid., 347. 92. Ibid., 377. 93. Ibid., 24. 94. Ibid., 215, 217, 382. In this context, Herring wrote warmly of the British cabinet system, which, in his view, combined independence and expertise but was properly constrained by both parliament and the electorate. Ibid., 382. 95. Ibid., 24, 380. 96. Ibid., 277. 97. Ibid., 386.

Notes to Pages 73–80

261

98. Ibid., 20. 99. Ibid., 381–82. 100. Ibid., 380. 101. Alfred M. Bingham, The Techniques of Democracy (New York: Duell, Sloan and Pearce, 1942), 6. 102. Herman Finer, The Future of Government (London: Methuen, 1946), 139. Although of British origin, Finer spent many years in the United States as a professor at Harvard. 103. Pendleton Herring, The Politics of Democracy: American Parties in Action (New York: Rinehart, 1940), x. 104. Ibid., 25–27; Purcell, Crisis of Democratic Theory, 190. 105. Herring, Politics of Democracy, 23. 106. Ibid., 335, x. 107. Robert K. Merton, Social Theory and Social Structure (1945; repr., Glencoe, IL: Free Press, 1957). See also Wilfred M. McClay, The Masterless: Self and Society in Modern America (Chapel Hill: University of North Carolina Press, 1994), chaps. 6 and 7. 108. Herring, Politics of Democracy, ix. 109. Ibid., 368. 110. Scholars often treat pluralism as though it began during the postwar period. In fact, it had precedents in the 1910s and 1920s and, with exceptions such as Herring, fell into relative abeyance in the 1930s. For an excellent work on pluralism, see Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1909–1926 (New York: Oxford University Press, 2002). 111. Herring, Politics of Democracy, 47. 112. Ibid., 389. 113. Ibid., 327. 114. Ibid., 376. 115. Pendleton Herring, The Impact of War: Our American Democracy Under Arms (New York: Farrar & Rinehart, 1941). 116. Here one ought to distinguish between the means by which modern wars are fought and the democratic consequences of such wars. Moreover, that total war requires a high degree of public support says nothing about how that support is generated— democratically or coercively, or both. 117. ‘‘The Annual Message of the Congress, January 6, 1941,’’ in The Public Papers and Addresses of Franklin D. Roosevelt, 1940 Volume, ed. Samuel I. Rosenman (New York: Macmillan, 1941), 663–72, 670. 118. The debate over internal versus external mechanisms for administrative responsibility was most forcefully articulated in a series of exchanges between Carl Friedrich and Herman Finer. Carl J. Friedrich, ‘‘Public Policy and the Nature of Administrative Responsibility,’’ Public Policy 1 (1940): 3–24; and Herman Finer,

262

Notes to Pages 80–81

‘‘Administrative Responsibility in Democratic Government,’’ Public Administration Review 1, no. 4 (1941): 335–50. 119. On the growing importance of administrative law and a newfound willingness to bring the courts back in as watchdogs over the administrative state, see the illuminating essay by Reuel Schiller, ‘‘Reining-in the Administrative State: World War II and the Decline of Expert Administration,’’ in Total War and the Law: The American Home Front in World War II, ed. Daniel R. Ernst and Victor Jew (Westport, CT: Praeger, 2003), 185–206. On the introduction of judicial mechanisms into the administrative process, see Landis, ‘‘Crucial Issues’’; and Vincent Barnett, Jr., ‘‘Judicialization of the Administrative Process,’’ Public Administration Review 7 (1948): 126–33. 120. In his incisive article on the Walter-Logan Bill, ‘‘Crucial Issues,’’ James Landis detailed how the bill would have applied only to newer agencies and bureaus, including the SEC, the FCC, the Secretary of Agriculture, the Wage and Hour Division of the Department of Labor, and the National Labor Relations Board, in which industrial, agricultural, and financial interests had the most to lose. There was, Landis showed, no rationale offered for applying judicial standards—principally in the form of judicial review of agency decisions—to some agencies but not to others. 121. By the early 1940s, reforms in the administrative process had taken hold after an assault not only by the American Bar Association, but also by judges, scholars, and even some administrators themselves. Louis L. Jaffe, ‘‘The Reform of Federal Administrative Procedure,’’ Public Administration Review 2, no. 2 (1942): 141–58, 157; and George B. Shepherd, ‘‘Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics,’’ Northwestern University Law Review 90, no. 4 (1996): 1557–1683. 122. Barnett, ‘‘Judicialization,’’ 126. 123. Ibid. 124. Ibid., 131. 125. Ibid., 132. Horwitz shares the assessment that the APA was forged ‘‘amid a surge of conservative post-war hostility to the New Deal as a well as bewilderment over the horrors inflicted by totalitarian regimes.’’ Horwitz, Transformation of American Law, 1870–1960, 231. 126. Donald Robert Brand, Corporatism and the Rule of Law: A Study of the National Recovery Administration (Ithaca, NY: Cornell University Press, 1988), 2, citing Kenneth Culp Davis, Administrative Law Text, 3rd ed. (St. Paul, MN: West, 1972). 127. Bingham, Techniques of Democracy, 176. On the value and limitations of the APA, see Charles S. Hyneman, Bureaucracy in a Democracy (New York: Harper & Brothers, 1950), chap. 8. For a more recent argument on the importance of formalized law as a tool for the powerless, see William E. Scheuerman, ‘‘The Rule of Law and the Welfare State: Toward a New Synthesis,’’ Politics & Society 22, no. 2 (1994): 195–213. 128. Schiller, ‘‘Enlarging the Administrative Polity,’’ 1402. Herring, by contrast, rejected judicial review as interfering with administration and thus with the interests of the people. Herring, Public Administration, 379.

Notes to Pages 82–88

263

129. Louis L. Jaffe, ‘‘An Essay on Delegation of Legislative Power: I,’’ Columbia Law Review 47, no. 3 (1947): 359–376, 371. 130. Herring, Politics of Democracy, 376. See also Riesman, ‘‘Government Service,’’ 669. Riesman recommended a formal consultation between administrators and the public as a way of increasing the accountability of bureaucrats and the participation of the public in an essentially closed process. Something of the kind was achieved by the reporting and public comment periods required by the APA, but it likely fell short of what Riesman had in mind. 131. Norton E. Long, ‘‘Bureaucracy and Constitutionalism,’’ APSR 46, no. 3 (1952): 808–18, 810–11; and Long, ‘‘Power and Administration,’’ Public Administration Review 9, no. 4 (1949): 257–64, 259–60. 132. George A. Graham, ‘‘Trends in Teaching of Public Administration,’’ Public Administration Review 10, no. 2 (1950): 69–77, 74. 133. Wallace S. Sayre, ‘‘The Triumph of Techniques over Purpose,’’ review of Personnel Administration: A Point of View and a Method, by Paul Pigors and Charles A. Meyers, Public Administration Review 8, no. 2 (1948): 134–37. 134. Long, ‘‘Power and Administration,’’ 259. 135. Dwight Waldo, ‘‘Development of Theory of Democratic Administration,’’ APSR 46, no. 1 (1952): 81–103. 136. Although his book on the TVA did not appear until 1949, Selznick developed much of its theoretical framework in the early 1940s. See Selznick, ‘‘Approach to a Theory of Bureaucracy’’; and ‘‘An Oral History with Philip Selznick,’’ conducted by Roger Cotterrell, 2002, Regional Oral History Office, Bancroft Library, University of California, Berkeley, 2010, 16. Selznick told Cotterrell, ‘‘I had a lot of notes and more or less knew what I wanted to say in 1943.’’ Ibid., 30. Available online at http://digital assets.lib.berkeley.edu/roho/ucb/text/selznick_philip.pdf. 137. Selznick, TVA and the Grass Roots, 7–8. 138. Ibid., 265, xii. 139. Wallace S. Sayre, review of TVA and the Grass Roots: A Study in the Sociology of Formal Organization, by Philip Selznick, APSR 43, no. 5 (1949): 1031–33, 1033. 140. Dwight Waldo, review of TVA and the Grass Roots, A Study in the Sociology of Formal Organization, by Philip Selznick, Western Political Quarterly 3, no. 1 (1950): 150–51, 150. 141. Selznick, TVA and the Grass Roots, xiii. 142. Ibid., 256. 143. R. G. Tugwell and E. C. Banfield, ‘‘Grass Roots Democracy—Myth or Reality?,’’ review of TVA and the Grass Roots, A Study in the Sociology of Formal Organization, by Philip Selznick, Public Administration Review 10, no. 1 (1950): 47–55, 48. 144. Selznick, TVA and the Grass Roots, 220. 145. Ibid. 146. Tugwell and Banfield, ‘‘Grass Roots Democracy,’’ 54. 147. Ibid.

264

Notes to Pages 88–90

148. This debate persists among democratic theorists. For example, Iris Marion Young has taken the proceduralist view, while Amy Gutmann insists that equalitarian concerns must be met before democratic participation can yield just results. For Gutmann, see her essay with Dennis Thompson, ‘‘Democratic Disagreement,’’ in Deliberative Politics: Essays on Democracy and Disagreement, ed. Stephen Macedo (New York: Oxford University Press, 1999), 243–79, 263–64; and Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990), 92–95. 149. Schiller, ‘‘Reining-in the Administrative State,’’ 191. But cf. James T. Sparrow, Warfare State: World War II Americans and the Age of Big Government (New York: Oxford University Press, 2011). Sparrow emphasizes the increased legitimacy of ‘‘big government’’ in the wake of the war. 150. According to Robert H. Wiebe, ‘‘No important study of democracy appeared in the Thirties.’’ Wiebe, Self-Rule: A Cultural History of American Democracy (Chicago: University of Chicago Press, 1995), 207. That does not mean there was no thought about the matter, as discussed here. And Henry A. Wallace appeared sincerely committed to citizen participation, if not always to the ideas for how to achieve it. Nor did Wallace’s democratic sentiments extend to rural African Americans or to those who fought on their behalf within his department. The latter, famously, were fired. See Sullivan, Days of Hope, 57. 151. Most scholars contend that the intellectual and popular response to totalitarianism sharpened the distinctions between American liberal democracy and antiliberal, antidemocratic, totalitarian rule. Schiller’s ‘‘Reining-in the Administrative State’’ is a rare exception; Ira Katznelson’s Fear Itself is another. Ido Oren demonstrates that many political scientists in the 1930s accommodated Nazi Germany in their analyses, praising its efficient state. Among this group, Oren includes the early Carl J. Friedrich. See Oren’s Our Enemies and Us: America’s Rivalries and the Making of Political Science (Ithaca, NY: Cornell University Press, 2003), chap. 2. For a challenging historical comparison, see Wolfgang Schivelbusch, Three New Deals, trans. Jefferson Chase (New York: Metropolitan Books, 2006). Chapter 3. The Rule of Law When the State Goes to War 1. Franz Neumann, Behemoth: The Structure and Practice of National Socialism, 1933–1944, 2nd ed. (New York: Oxford University Press, 1944), chap. 1, citations refer to the 2nd edition. See also Karl Loewenstein, ‘‘The Balance Between Legislative and Executive Power: A Study in Comparative Constitutional Law,’’ University of Chicago Law Review 5, no. 4 (1938): 566–608; Loewenstein, ‘‘Autocracy Versus Democracy in Contemporary Europe, I,’’ APSR 29, no. 4 (1935): 571–93; Otto Kirchheimer, ‘‘In Quest of Sovereignty,’’ Journal of Politics 6, no. 2 (1944): 139–76; Pendleton Herring, ‘‘Liberalism in Crisis,’’ Canadian Journal and Economics and Political Science 10, no. 3 (1944): 287–97, 294–97; and Bernard Schwartz, ‘‘Executive Power and the Disappearance of Law,’’ New York University Law Quarterly Review 21, no. 4 (1946): 487–505.

Notes to Pages 90–91

265

2. I distinguish between law and an ethical commitment to the norms of law, or legality. The latter, with other students of the law, I call ‘‘legalism’’ or ‘‘the rule of law ideal.’’ As the legal scholar Bernard Schwartz wrote in the 1940s and many have repeated since, ‘‘This distinction between law and legality has too often been lost sight of.’’ ‘‘Executive Power,’’ 488. It was legalism, not law itself, that was up for debate during the 1940s. Any ruler can issue an edict and call it law, but a commitment to legal norms, including that political power be constrained by law, is of a different order and necessary for a functioning constitutional democracy. For a discussion of ‘‘the rule of law model’’ or ‘‘autonomous law,’’ which is fairly close to the way I use the rule of law ideal, see Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Harper & Row, 1978), 53–72. ‘‘Legalism,’’ often seen as the inevitable byproduct of the rule of law ideal, has been the object of considerable attack among legal scholars and political theorists for its rigid commitment to procedure. This rigidity is not characteristic of the discussion I seek to reconstitute here. For astute critiques of legalism, see Judith Shklar, Legalism: Law, Morals, and Political Trials (1964; repr., Cambridge, MA: Harvard University Press, 1986); and Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992). 3. Bonnie Honig, Emergency Politics: Paradox, Law, Democracy (Princeton, NJ: Princeton University Press, 2009), xvi. 4. This viewpoint was so pervasive a few representative examples will have to suffice. Here I include only Americans; below I make clear that the German e´migre´s who are the subject of this chapter broadly shared this point of view, only they thought about it more critically. David Riesman, ‘‘Civil Liberties in a Period of Transition,’’ Public Policy 4 (1942): 33–96; and Charles E. Merriam, Prologue to Politics (Chicago: University of Chicago Press, 1939), 29. See also Michael S. Sherry, America in the Shadow of War: The United States Since the 1930s (New Haven: Yale University Press, 1997). 5. Robert Cushman, ‘‘Civil Liberty After the War,’’ APSR 38, no. 1 (1944): 1–20, 2, 3, 7; Riesman, ‘‘Civil Liberties’’; Wolfgang Friedmann, Legal Theory, 2nd ed. (London: Stevens and Sons, 1949), 400; and Edward S. Corwin, ‘‘The War and the Constitution: President and Congress,’’ APSR 37, no. 1 (1943): 18–25, 25. (‘‘It should not escape attention that the operative Constitution of World War I has become . . . under the New Deal, the everyday Constitution of this country. There is always a tendency, even in democracies, for the emergency device to become the normal.’’) See also Edward S. Corwin, Total War and the Constitution (New York: Knopf, 1947). 6. Robert M. MacIver, Leviathan and the People (1939; repr., Port Washington, NY: Kennikat Press, 1972), 20–21, citations refer to the Kennikat edition. 7. Roosevelt quoted in Albert L. Strum, ‘‘Emergencies and the Presidency,’’ Journal of Politics 11, no. 1 (1949): 121–44, 134. On this address and other executive actions, see also Corwin, ‘‘War and the Constitution,’’ esp. 18–20.

266

Notes to Pages 91–92

8. This chapter and the next refer only to the occupation of Germany, as it was in this context that the rule of law debate occurred. ‘‘The issues of the Japanese territories present distinct problems, as many have never been subject to the rule of law or anything like it.’’ Carl J. Friedrich, ‘‘Military Government as a Step Toward Self-Rule,’’ Public Opinion Quarterly 7, no. 4 (1943): 527–41, 532. 9. Outside a large and growing literature among legal historians on the legal response to the administrative state, most historians have all but ignored this development. A notable exception is Norman Rosenberg, who has noted that ‘‘the legal system . . . became a key element in the political culture unfolding after World War II.’’ ‘‘Gideon’s Trumpet,’’ in Recasting America: Culture and Politics in the Age of the Cold War, ed. Larry May (Chicago: Chicago University Press, 1989), 107–24, 109. In addition, William E. Nelson’s recent study shows how one understanding of the rule of law took hold beginning in the late 1930s. William E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980 (Chapel Hill: University of North Carolina Press, 2001). See also Fred Siegel, ‘‘Is Archie Bunker Fit to Rule? Or: How Immanuel Kant Became One of the Founding Fathers,’’ Telos 1986, no. 69 (1986): 9–29. Siegel, however, places the rise of the rule of law discourse in the 1970s. 10. Friedrich, ‘‘Military Government as a Step Toward Self-Rule,’’ 537–38. Friedrich believed that that administrators could largely police themselves under professional norms and thus that administrative discretion was of little concern. See his ‘‘Public Policy and the Nature of Administrative Responsibility,’’ in Public Policy, ed. C. J. Friedrich and Edward S. Mason (Cambridge, MA: Harvard University Press, 1940), 3–24. On Friedrich’s position in contrast to those who were more critical of the administrative state, see Debra W. Stewart, ‘‘Professionalism vs. Democracy: Friedrich vs. Finer Revisited,’’ Public Administration Quarterly 9, no. 1 (1985): 13–25. 11. The ‘‘rule of law ideal’’ is a term I use to distinguish it from the phrase ‘‘rule of law,’’ which can more easily be interpreted to mean quite simply law. Although a contested concept, the definition I have used here is relatively uncontroversial because it is a minimalist one. It represents the common denominator in the debate this chapter examines. The literature on the concept of the rule of law and its complications is extensive. Among the most helpful works are James E. Fleming, ed., Getting to the Rule of Law (NOMOS L) (New York: New York University Press, 2011); Pietro Costa and Danilo Zolo, eds., The Rule of Law: History, Theory and Criticism (Dordrecht: Springer, 2007); Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004); Joseph Raz, ‘‘The Rule of Law and Its Virtue,’’ reprinted in The Authority of Law: Essays on Law and Morality (New York: Oxford University Press, 2002); David Dyzenhaus, ed., Recrafting the Rule of Law (Portland, OR: Hart, 1999); William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1994); Roger Cotterrell, ‘‘The Rule of Law in Transition: Revisiting Franz Neumann’s Sociology of Legality,’’ Social & Legal Studies 5, no. 4 (1996): 451–70; Richard H. Fallon, Jr., ‘‘ ‘The Rule of Law’ as a Concept in Constitutional Discourse,’’ Columbia Law Review 97,

Notes to Pages 92–93

267

no. 1 (1997): 1–57; Ian Shapiro, ed., The Rule of Law (New York: New York University Press, 1994); Geoffrey de Q. Walker, The Rule of Law: Foundation of Constitutional Democracy (Carlton: Melbourne University Press, 1988); and Allan C. Hutchinson and Patrick Monahan, eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987). 12. The best discussion of this phenomenon remains Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973). On the moralism that entered American political discourse in response to totalitarianism, see Richard A. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999). For changing ideas about totalitarianism, see Abbott Gleason, Totalitarianism: The Inner History of the Cold War (New York: Oxford University Press, 1995); and Benjamin L. Alpers, Dictators, Democracy, and American Public Culture: Envisioning the Totalitarian Enemy, 1920s–1950s (Chapel Hill: University of North Carolina Press, 2003). 13. In fact, Neumann’s widely read study of the Nazi state, Behemoth, inspired liberal and radical intellectuals to reassess the nature of America’s own bestial state. See, for example, Howard Brick, Daniel Bell and the Decline of Intellectual Radicalism: Social Theory and Political Reconciliation in the 1940s (Madison: University of Wisconsin Press, 1986). According to Brick, C. Wright Mills borrowed heavily from Neumann in his ‘‘conception of an American Behemoth, the Power Elite of big business, government executives, and military commanders’’ (81). 14. Neumann, Behemoth, 447. 15. For the notion of a ‘‘legal terror’’ in the courts that existed alongside a physical terror outside the law, see Otto Kirchheimer, ‘‘Nazi Plans for Dominating Germany and Europe: Domestic Crimes,’’ August 13, 1945. This document was prepared for the Central European Section of the Research and Analysis Branch of the Office of Strategic Services (OSS) and is reprinted in Secret Reports on Nazi Germany: The Frankfurt School Contribution to the War Effort, ed. Raffaele Laudani (Princeton, NJ: Princeton University Press, 2013), 522–54. For the Nazis’ use of the mask of legality, see Neumann, Behemoth, 42; Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (1941; repr., New York: Octagon Books, 1969), citations refer to the Octagon Books edition; Karl Loewenstein, ‘‘Dictatorship and the German Constitution: 1933–1937,’’ University of Chicago Law Review 4, no. 4 (1937): 537–74, 537–39; A. H. Campbell, ‘‘Fascism and Legality,’’ Law Quarterly Review 62, no. 2 (1942): 141–51, 144; and Friedmann, Legal Theory, 255, 258–59. For ‘‘over-specialization,’’ see Friedrich Roetter, ‘‘The Impact of Nazi Law,’’ Wisconsin Law Review 1945, no. 4 (1945): 516–62. 16. American legal thinkers also raised substantive arguments about the rule of law ideal, including Ernst Freund, Lon Fuller, Roscoe Pound, Bernard Schwartz, Charles Evans Hughes, and even, at times, Felix Frankfurter. But in general the noisy opposition to the encroachment of administration on the judiciary is more noteworthy for its lack of substantive concerns. This supports the argument of this book that

268

Notes to Pages 93–95

substantive yet sympathetic critiques of the administrative state were always present and rarely dominant. For a more optimistic assessment of the rule-of-law critique of the administrative state, see Daniel R. Ernst’s Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (New York: Oxford University Press, 2014). But cf. William C. Chase, The American Law School and the Rise of Administrative Governance (Madison: University of Wisconsin Press, 1982). 17. Carl Friedrich, a German-born constitutional scholar at Harvard, arrived in the United States as a student in the 1920s and decided to stay. I include him in this group as he was a major contributor to the rule of law debate and joined his e´migre´ compatriots in numerous academic and political projects. 18. All but Brecht, Friedrich, and Hayek were Jewish. 19. Otto Kirchheimer, ‘‘Legality and Legitimacy,’’ in The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, ed. William Scheuerman (Berkeley: University of California Press, 1996), 44–63, 48. 20. Kirchheimer, ‘‘In Quest of Sovereignty,’’ 149–50. 21. See, for example, Otto Kirchheimer, ‘‘Weimar—And What Then?’’ in Politics, Law, and Social Change: Selected Essays of Otto Kirchheimer, ed. Frederic Burin and Kurt Shell (New York: Columbia. University Press, 1969), 33–74, 66; and Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (Leamington Spa: Berg, 1986). This book is a translation of Neumann’s dissertation, ‘‘The Governance of the Rule of Law,’’ completed in 1936 under the direction of Harold Laski at the London School of Economics. Martin Jay, ‘‘Foreword’’ to Neumann, Rule of Law, xi. 22. Roetter, ‘‘Impact of Nazi Law,’’ 558. 23. Among those who blamed positivistic thinking for Weimar’s downfall (because judges and administrators uncritically followed the law as it led them down the path to dictatorship) were Karl Loewenstein, ‘‘Reconstruction of the Administration of Justice in American-Occupied Germany,’’ Harvard Law Review 61, no. 3 (1948): 419–67, 433; and Arnold Brecht, ‘‘Democracy—Challenge to Theory,’’ Social Research 13, no. 2 (1946): 195–224, 218. Franz Neumann and Otto Kirchheimer, meanwhile, rejected the notion that positivism dominated Weimar jurisprudence. They contended that an iteration of natural law thinking suffused the German judicial mind in which ‘‘general principles,’’ in Neumann’s words, replaced ‘‘general legal norms.’’ These principles allowed judges and administrators broad discretionary powers and enabled them to mask political problems under the shield of law. Franz L. Neumann, ‘‘The Change in the Function of Law in Modern Society,’’ in Scheuerman, Rule of Law Under Siege, 101–41, 118. First published in Zeitschrift fu¨r Sozialforschung 6, no. 3 (1937), and based on his 1936 dissertation, this essay was translated into English by Klaus Knorr and Edward A. Shils for use in the core curriculum at the University of Chicago. See Selected Readings, Second Year Course in the Study of Contemporary Society (Social Science II), 8th ed. (Chicago: University of Chicago, 1939).

Notes to Page 96

269

It is this translation that is reprinted in Scheuerman. See also Neumann, Rule of Law, chap. 15; and Otto Kirchheimer, ‘‘Legality and Legitimacy,’’ in Scheuerman, Rule of Law Under Siege, 44–63, 46–48. 24. For the most illuminating works on German legal positivism and related jurisprudential developments from Weimar to the Third Reich, see Hans Boldt, ‘‘Article 48 of the Weimar Constitution: Its Historical and Political Implications,’’ in German Democracy and the Triumph of Hitler, ed. Anthony Nicholls and Erich Matthias (London: Allen & Unwin, 1971); James E. Hergert and Stephen Wallace, ‘‘The German Free Law Movement as the Source of American Legal Realism,’’ Virginia Law Review 73, no. 2 (1987): 399–455; Peter C. Caldwell, ‘‘Legal Positivism and Weimar Democracy,’’ American Journal of Jurisprudence 39 (1994): 399–427; Stanley L. Paulson, ‘‘Lon L. Fuller, Gustav Radbruch, and the ‘Positivist’ Theses,’’ Law and Philosophy 13, no. 3 (1994): 313–59; and Paulson, ‘‘The Theory of Public Law in Germany 1914–1945,’’ Oxford Journal of Legal Studies 25, no. 3 (2005): 525–45; Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism (Durham, NC: Duke University Press, 1997); Peter C. Caldwell and William E. Scheuerman, From Liberal Democracy to Fascism: Legal and Political Thought in the Weimar Republic (Boston: Humanities Press, 2000); Scheuerman, Between the Norm and the Exception; Chris Thornhill, Political Theory in Modern Germany: An Introduction (Cambridge: Polity Press, 2000); Arthur J. Jacobson and Bernhard Schlink, eds., Weimar: A Jurisprudence of Crisis, trans. Belinda Cooper. (Berkeley: University of California Press, 2000); and Michael Stolleis, A History of Public Law in Germany, 1914–1945, trans. Thomas Dunlap (Oxford: Oxford University Press, 2004). 25. Alfons So¨llner, ‘‘Franz L. Neumann’s Place in the History of Political Thought,’’ in German Scholars in Exile: New Studies in Intellectual History, ed. Axel Fair-Schulz (Lexington, MA: Lexington Books, 2011), 123. 26. There is debate in the legal literature over the relationship of legal realism to legal positivism, itself a reflection of a larger debate in the 1940s led by the opponents of realism. Most agree that there is some relationship but that it is fairly attenuated. For the purposes of this book, it would be misleading to equate German legal positivism and American legal realism. For analyses of this debate, see Shklar, Legalism; James Hergert, American Jurisprudence, 1870–1970: A History (Houston, TX: Rice University Press, 1990); Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon, 1995), chaps. 2 and 4; and Anthony J. Sebok, Legal Positivism and American Jurisprudence (New York: Cambridge University Press, 1998). 27. Edgar Bodenheimer, ‘‘A Decade of Jurisprudence in the United States of America: 1946–1956,’’ Natural Law Forum 3, no. 1 (1958): 44–67, 67; Edward A. Purcell, Jr., ‘‘American Jurisprudence Between the Wars: Legal Realism and the Crisis of Democratic Theory,’’ American Historical Review 75, no. 2 (1969): 424–46; and Purcell, Crisis of Democratic Theory, chap. 5. 28. Hergert and Wallace, ‘‘German Free Law Movement,’’ 403.

270

Notes to Pages 96–100

29. For a critique of legal realism as ‘‘failing to construct a new form of legal discourse,’’ see Bruce A. Ackerman, Reconstructing American Law (Cambridge, MA: Harvard University Press, 1984), 21. 30. On the defensiveness of the legal profession in response to the growing administrative state, see Chase, American Law School, chap. 5. Chase points out that the New Deal lawyers, most of them legal realists, did not defend the administrative state on substantive rule of law grounds. Instead, they resorted to institutional arguments: the courts were not the correct venues to resolve administrative issues; the expert influence and flexibility of administrative agencies were boons to effective public policymaking, in contrast to the interest-group-laden Congress and the slow and inexpert judiciary. 31. Supreme Court Justice Antonin Scalia offered this formalist definition of the rule of law in his 1989 Holmes Lecture. Antonin Scalia, ‘‘The Rule of Law as the Law of Rules’’ (Oliver Wendell Holmes Bicentennial Lecture, Harvard Law School, February 14, 1989). On the myriad conceptions of the term ‘‘rule of law,’’ see Fleming, ed., Getting to the Rule of Law; Costa and Zolo, Rule of Law; Walker, Rule of Law; and Hutchinson and Monahan, Rule of Law: Ideal or Ideology. 32. Neumann, Rule of Law, xxi and 257; and Neumann, ‘‘Change in the Function of Law in Modern Society.’’ 33. Neumann, Rule of Law, 257. This paragraph is informed by Matthias Ruete’s ‘‘Post-Weimar Theory in Exile,’’ which he wrote as an introduction to Neumann’s Rule of Law. Ruete quotes this passage on xxi. See also Scheuerman, Between the Norm and the Exception, chap. 4; and Scheuerman, Rule of Law Under Siege, 11–15. 34. Neumann, Behemoth, 444. 35. Arnold Brecht, ‘‘The Concentration Camp,’’ Columbia Law Review 50, no. 6 (1950): 761–82, 777, italics in the original. 36. On modernist conceptions of the rule of law, see Larry Alexander, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998). On the implications for individual autonomy and constraints on government of prescribing rules in advance, see Richard S. Kay, ‘‘American Constitutionalism,’’ in Alexander, Constitutionalism, 16–63, 22. 37. On the legal realists’ instrumentalism, see Myres S. McDougal, ‘‘Fuller v. the American Legal Realists: An Intervention,’’ Yale Law Journal 50, no. 5 (1949): 827–40, 834–35. 38. There is a long history in Anglo-American law of dichotomizing law and administration that began with the British legal theorist A. V. Dicey, who insisted upon the sovereignty of the rule of law (for him, the rule of an impartial judiciary) even in light of burgeoning administrative adjudication. In the 1940s, Friedrich von Hayek did the same. For a particularly lucid discussion of the tension between law and administration in Anglo-American legal thought, see Schwartz, ‘‘Executive Power,’’ 487–505. 39. John G. Gunnell, The Descent of Political Theory: The Genealogy of American Vocation (Chicago: University of Chicago Press, 1993), chap. 8; and Wilfred M.

Notes to Pages 100–102

271

McClay, The Masterless: Self and Society in Modern America (Chapel Hill: University of North Carolina Press, 1994), chap. 6. See also Andrew Jamison and Roy Eyerman, Seeds of the Sixties (Berkeley: University of California Press, 1994), 4. 40. A few of the writings of these German-turned-American intellectuals made it back to Germany, but getting prodemocratic, anti–National Socialist works into Nazi Germany was a tricky, dangerous, and rare occurrence. One successful effort at intellectual smuggling involved a work by Otto Kirchheimer written under the pseudonym Hermann Seitz and titled Staatsgefuge und Recht des Dritten Reichs, published in Hamburg in 1935. On this intellectual legerdemain, see Keith Tribe’s introduction in Social Democracy and the Rule of Law: Otto Kichheimer and Franz Neumann, ed. Keith Tribe (London: Allen & Unwin, 1987), 26n48. 41. See, for example, Arnold Brecht, Prelude to Silence: The End of the German Republic (New York: Oxford University Press, 1944); and Friedrich Kessler, ‘‘Natural Law, Justice and Democracy—Some Reflections on Three Types of Thinking About Law and Justice,’’ Tulane Law Review 19, no. 1 (1944): 32–61, 53–54. 42. Karl Loewenstein, ‘‘Militant Democracy and Fundamental Rights, I,’’ APSR 31, no. 3 (1937): 417–432, 423. See also Franz L. Neumann, ‘‘The Decay of German Democracy,’’ Political Quarterly 4, no. 1 (1933), reprinted in Scheuerman, Rule of Law Under Siege, 29–43. 43. Although the German e´migre´s were generally optimistic about the prospects of American constitutional democracy, they did not rule out future troubles in light of the concentration of executive power and a bureaucracy that favored the most powerful. See, for example, Karl Loewenstein, Political Reconstruction (New York: Macmillan, 1946), 222 (‘‘Who would predict what will be the ultimate fate of the United States constitution?’’); and Kirchheimer, ‘‘In Quest of Sovereignty,’’ 171–73. 44. Some anti-Nazi Reichstag members even voted for the act that suspended the constitution under Hitler precisely on the logic that they wished to protect the constitution from authoritarian rule, and to prevent the Nazi revolution from being unconstitutional. See Larry Eugene Jones, German Liberalism and the Dissolution of the Weimar Party System, 1918–1933 (Chapel Hill: University of North Carolina Press, 1988), 472. 45. Loewenstein, Political Reconstruction, 322; Neumann, ‘‘Decay of German Democracy,’’ 30. 46. Neumann, ‘‘Decay of German Democracy,’’ 41. 47. Brecht, ‘‘Democracy.’’ See also Brecht, Prelude to Silence, 73–105. For more positive though still wary assessments written before the war, see Loewenstein, ‘‘Militant Democracy and Fundamental Rights, I’’; and Loewenstein, ‘‘Militant Democracy and Fundamental Rights, II,’’ APSR 31, no. 4 (1937): 638–658. 48. Brecht, Prelude to Silence, 48–50. 49. Brecht, ‘‘Democracy,’’ 218. 50. Brecht, ‘‘Democracy,’’ 202. 51. Ibid.

272

Notes to Pages 102–105

52. Ibid., 435. Brecht also noted that the actual ‘‘execution’’ of truly abhorrent acts was left to party officials and not government functionaries. This begs the question of which official actions state actors bear or should bear responsibility for, an issue that was taken up by the German refugees pondering the approach of the Nuremberg trials. On the ease with which some German officials did resign, see Karl Loewenstein, ‘‘Comment on ‘Denazification,’ ’’ Social Research 14, no. 1 (1947): 365–69. 53. For an excellent discussion of the role of positivism in the Weimar legal system, see Caldwell, ‘‘Legal Positivism and Weimar Democracy.’’ On the ascendency of natural law in the 1940s, see Purcell, Crisis of Democratic Theory; and Primus, American Language of Rights. 54. Arnold Brecht, The Political Education of Arnold Brecht: An Autobiography, 1884–1970 (Princeton, NJ: Princeton University Press, 1970), 434. 55. This dimension of the e´migre´s’ work is discussed in Chapter 4. On the Research and Analysis Branch of the OSS, see Barry M. Katz, Foreign Intelligence: Research and Analysis in the Office of Strategic Services, 1942–1945 (Cambridge, MA: Harvard University Press, 1989), esp. 11 and 35; and Katz, ‘‘The Criticism of Arms: The Frankfurt School Goes to War,’’ Journal of Modern History 59, no. 3 (1987): 439– 78. For the German e´migre´ influence, see Laudani, Secret Reports on Nazi Germany; and Douglas Kellner, introduction to Herbert Marcuse, Technology, War and Fascism: Collected Papers of Herbert Marcuse, vol. 1, ed. Douglas Kellner (London: Routledge, 1998). 56. Felix Frankfurter, The Public and Its Government (New Haven: Yale University Press, 1930), 123–24. 57. Shklar, Legalism, 189. 58. Arthur W. MacMahon, ‘‘Discussions,’’ Social Research 6, no. 2 (1939): 269–86, 275. See also Karl Loewenstein, ‘‘Militant Democracy and Fundamental Rights, II,’’ 658. 59. On Roscoe Pound and the rule of law in the 1930s, see John Fabian Witt, Patriots and Cosmopolitans (Cambridge, MA: Harvard University Press, 2007); and Horwitz, Transformation of American Law, 217–24. Scholars have debated whether the once-progressive Pound performed a volte-face in the 1930s in which he came close to rejecting the administrative state altogether in response to totalitarian successes, New Deal regulatory policies, and a general diminution of judicial power. Some legal historians, such as Daniel Ernst and Michael Willrich, have, I believe, successfully challenged this interpretation. While Pound’s intellectual and political views bordered on the reactionary in the 1930s, certain themes remained consistent throughout his career. One was the necessity of some administration. Another sat uneasily with the first: a reverence for the common law of courts and judges as the system best equipped to protect individual rights of whatever kind. 60. F. A. Hayek, The Road to Serfdom, 50th anniversary ed. (1944; reprint with an introduction by Milton Friedman, Chicago: University of Chicago Press, 1994). To be precise, it was a condensed version of the book published in The Reader’s Digest and a

Notes to Page 105

273

book-of the-month reprint of the condensed pamphlet that potentially exposed Hayek to nearly 10 million readers (1 million of the reprints were ordered, and the Digest had a circulation of 8.75 million). For more on the sales of Road to Serfdom, see Milton Friedman’s introduction. 61. Hayek is often ignored as a contributor to modern (i.e., statist) liberal political thought. An exception is Chandran Kukathas, ‘‘Hayek and Liberalism,’’ in The Cambridge Companion to Hayek, ed. Edward Feser (Cambridge: Cambridge University Press, 2006), 182–207. See also Kukathas, Hayek and Modern Liberalism (Oxford: Clarendon, 1989). 62. Hayek first drew this connection in a 1938 article titled ‘‘Freedom and the Economic System,’’ published in Contemporary Review, April 1938, 434–42, and in more elaborate form in F. A. Hayek, Freedom and the Economic System, Public Policy Pamphlet No. 20 (Chicago: University of Chicago Press, 1939). Both are reprinted in Socialism and War: Essays, Documents, Reviews, ed. Bruce Caldwell (Indianapolis, IN: Liberty Fund), 180–211. 63. Hayek, Road to Serfdom, 39, 40. Socialism is ultimately figured as a ‘‘species’’ of collectivism or central planning, defined variously as ‘‘that sort of planning which is necessary to realize any given distributive ideals’’ or as ‘‘a central direction of all economic activity according to a single plan.’’ In some writings, Hayek indicated that by ‘‘collectivism’’ he meant the nationalization or socialization of the means of economic production. However, in Road to Serfdom, Hayek often used this concept to denote virtually any government intervention in the market and all forms of centralized planning. The key to this conflation for his statist critics in the United States was the conclusion that ‘‘any movement in the direction of socialism is bound to lead to totalitarianism.’’ ‘‘The Unseen Problem,’’ in Collectivist Economic Planning, ed. F. A. Hayek (London: Routledge Kegan Paul, 1935), 1. 64. In addition to its popular sales, Hayek’s book drew significant attention from his academic compatriots in the United States, almost all of it critical. However, this criticism focused almost exclusively on Hayek’s brief against planning and his correlative attack on bureaucracy, part of a broader ‘‘rambling and raving’’ genre to emerge during the war. Two books, both by British academics who were widely read in the United States, were written in direct response to Hayek’s Road to Serfdom: Herman Finer’s Road to Reaction (Boston: Little, Brown, 1945); and Barbara Wootton’s Freedom Under Planning (Chapel Hill: University of North Carolina Press, 1945). Wolfgang Friedmann’s short tract, The Planned State and the Rule of Law (Melbourne: Melbourne University Press, 1948), was also directly inspired by Hayek. 65. Hayek did at times equate fascism and communism and even socialism, but it was Germany’s fate on which he focused. Indeed, in a 1976 preface to a reprint edition of the book, Hayek wrote that his biggest regret, in hindsight, was that he ‘‘rather understressed the significance of the experience of communism in Russia.’’ This sort of ‘‘regret’’ was common among the legalists of the 1940s throughout the

274

Notes to Pages 105–110

Cold War. Hayek, ‘‘Preface to the 1976 Reprint Edition,’’ in Hayek, Road to Serfdom, xxiv. 66. Hayek, Road to Serfdom, 4. 67. He was known as Friedrich von Hayek in England and the United States, but this was not his choice or preference. 68. See his postscript ‘‘Why I Am Not a Conservative,’’ in Friedrich A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), 397–411. Hayek considered himself a ‘‘liberal’’ in the nineteenth-century sense of laissez-faire, though he was quick to disclaim a total identification, with the latter on the grounds that he supported a greater degree of government involvement in the economy. 69. Hayek, Road to Serfdom, 19. 70. On Hayek’s education, see Hayek on Hayek: An Autobiographical Dialogue, ed. Stephen Kresge and Leif Wenar (Chicago: University of Chicago Press, 1994), 63. 71. Hayek, Road to Serfdom, 91–92. 72. Ibid., 80–81, italics added. It is also worth noting that this passage is often quoted by legal scholars to this day as one of the standard definitions of the rule of law. 73. Ibid., 81. 74. This flattery may be found in Judith Shklar, Legalism, 23, where she also points out that the rule of law was Hayek’s answer to coercion of all types, not just the coercion of capitalists and their institutions. Shklar was much more critical of Hayek in subsequent works. 75. Hayek, Road to Serfdom, 78. 76. Ibid., 71. 77. Ibid., 70. 78. Finer, Road to Reaction, 55. 79. Hayek, Road to Serfdom, 92. 80. Wider and older, that is, compared to that of the English legal theorist A. V. Dicey. This wider view, traced back to John Locke and fully elaborated in the nineteenth-century German concept of a Rechtsstaat, moved beyond a formal constraint on arbitrary power—although it was that as well—to encompass freedom itself. In addition to Locke, Hayek cited Voltaire and Kant on this more expansive, normdriven idea of legal hegemony. Law produces individual freedom not only by constraining coercive power but by providing the only constraint under which human beings must live. 81. On Schmitt’s influence on Neumann and Kirchheimer, see Scheuerman, Between the Norm and the Exception, passim. 82. Hayek, Road to Serfdom, 4. 83. Ibid., 4–5. 84. Friedrich von Hayek, ‘‘Nazi Order,’’ Spectator, April 14, 1941, 352, reprinted in Caldwell, Socialism and War, 173–75, 174. 85. Ibid., 182.

Notes to Pages 110–112

275

86. Ibid., 54. Many scholars have commented on Hayek’s inattention to historical detail. See, for example, Judith N. Shklar, ‘‘Political Theory and the Rule of Law,’’ in Hutchinson and Monahan, Rule of Law, 8. 87. Carl J. Friedrich, Constitutional Government and Democracy, rev. ed. (Boston: Ginn, 1950), v; and Hayek, Road to Serfdom, 8–9. 88. Hayek, Road to Serfdom, 6. 89. Hayek, Constitution of Liberty, 234. 90. Ibid., 239, 234. Hayek did refer here to Italy and Russia as well as ‘‘Hitler Germany’’ as the purveyors of the logical extreme of legal positivism, but Germany set the terms of debate over legal positivism. 91. Hayek, Road to Serfdom, 86, 91. 92. Ibid., 92n3. 93. Neumann, ‘‘Change in the Function of Law in Modern Society,’’ 138. 94. Hayek, Constitution of Liberty, 497. Hayek, who only at this point acknowledged that others had expressed similar ideas about the rule of law in the 1940s, appeared puzzled that scholars such as Neumann should have rejected Hayek’s contention in Road to Serfdom that the rule of law and socialism were ‘‘incompatible’’ since they had made the same point. Hayek surmised that their ‘‘indignation’’ flowed from the fact that Hayek was using this point as a critique of socialism. Hayek ignored the fact that Neumann and his fellow Frankfurt school thinkers saw National Socialism not as a breed of socialism but as a manifestation of state capitalism. They thought long and hard about how to marry the rule of law and the interventionist welfare state, let alone socialism, and never arrived at a satisfactory answer. For their struggle to do so, see Scheuerman, Between the Norm and the Exception. 95. Neumann, ‘‘Change in the Function of Law in Modern Society,’’ 138. 96. Myriad elisions may be found in the chapter titled ‘‘Totalitarians in Our Midst,’’ where among the ‘‘totalitarians’’ whom Hayek named stood the British historian E. H. Carr. Carr earned this moniker chiefly based on his critique of nineteenthcentury liberalism and his apparent identification of certain tendencies within England and Germany. Hayek differentiated Carr’s comparison from his own efforts in this direction by attributing to Carr an endorsement of these similarities rather than a mere description of them. Hayek, Road to Serfdom, 204–7. 97. Hayek described the reaction of American intellectuals in these terms years later in an interview. Hayek had directly experienced this vituperation—and the simultaneous popularity of the book in the United States— since he spent March through May 1945 on a lecture tour there. See Kresge and Wenar, Hayek on Hayek, 102–3. The term ‘‘creeping socialism’’ is Robert Skidelsky’s. See Robert Skidelsky, ‘‘Hayek Versus Keynes: The Road to Reconciliation,’’ in Feser, Cambridge Companion to Hayek, 82–110. 98. Brecht, ‘‘Democracy,’’ 209; and Charles S. Hyneman, ‘‘Bureaucracy and the Democratic System,’’ Louisiana Law Review 6, no. 3 (1944–46): 309–49, 347.

276

Notes to Pages 112–114

99. See, for example, Carl J. Friedrich, review of The Road to Serfdom, by Friedrich A. Hayek, APSR 39, no. 3 (1943): 575. See also George Orwell’s review of Serfdom in As I Please, 1943–1945: The Collected Essays, Journalism and Letters of George Orwell, vol. 3, ed. Sonia Orwell and Ian Angus (New York: Harcourt, Brace & World, 2000). Orwell’s analysis was sympathetic to Hayek’s critique of the overbearing state, but he disclaimed Hayek’s cure—a return to a virtually unfettered market capitalism—as worse than the totalitarian disease. It would represent ‘‘a tyranny probably worse, because more irresponsible, than that of the State. The trouble with competitions is that somebody wins them’’ (118). John Maynard Keynes made a similar comment in a now famous letter to Hayek written in 1944. For a lucid discussion of the KeynesHayek exchange over Hayek’s book, see Skidelsky, ‘‘Hayek versus Keynes.’’ 100. T. J. Smith, review of The Road to Serfdom, by Friedrich A. Hayek, Ethics 55, no. 3 (1945): 224–26. 101. Clinton L. Rossiter, ‘‘Constitutional Dictatorship in the Atomic Age,’’ Review of Politics 11, no. 4 (1949): 395–418, 406. 102. Many statist liberals exempted Hayek’s discussion of the rule of law from their otherwise scathing reviews. For a later appreciation of Hayek on law, see Theodore J. Lowi, The End of Liberalism (New York: Norton, 1969), 298. For another sympathetic treatment of Hayek’s rule of law ideal, which nonetheless rejects ‘‘the way he draws certain conclusions from this ideal,’’ see Raz, ‘‘Rule of Law and Its Virtue,’’ 210–29. Ironically, Raz subscribes to a variant of legal positivism, the very theory that Hayek held responsible for Germany’s downfall. 103. The discourse on the failures of Weimar’s democratic constitution to preserve liberty (Hayek) and equality and democracy (the German legalists) even seeped into popular political tracts. The civil rights leader A. Philip Randolph insisted in a famous 1942 protest speech, ‘‘It was because of laxness in enforcing the Weimar constitution in republican Germany that Nazism made headway. Oppression of the Negroes in the United States, like suppression of the Jews in Germany, may open the way for a fascist dictatorship.’’ A. Philip Randolph, ‘‘Why Should We March?’’ in The Negro in Twentieth Century America: A Reader on the Struggle For Civil Rights, ed. John Hope Franklin and Isidore Starr (New York: Random House, 1967), 138–41, 140. 104. Brecht had in mind some of the shrill dismissals of Hayek’s book upon its publication, in particular Finer’s Road to Reaction. Brecht, ‘‘Democracy,’’ 207–9. 105. Brecht, ‘‘Democracy,’’ 209. 106. Hayek, Road to Serfdom, 64–66, 71. 107. Schwartz, ‘‘Executive Power,’’ 503. 108. Hayek, Road to Serfdom, 90–91, italics added. 109. In his preface to the 1976 reprint edition of The Road to Serfdom, Hayek maintained that this was meant to be a rhetorical question, as there was obviously no such thing as the rule of law in Nazi Germany (xxiv). Hayek also noted that he only ‘‘later’’ discovered that scholars such as Hans Kelsen, Harold J. Laski, and ‘‘probably many other socialist lawyers [sic]’’ were arguing just the opposite. That he would learn

Notes to Pages 115–117

277

this only ‘‘later’’ (in The Constitution of Liberty, such writings are reflected in his footnotes) further demonstrates his lack of interest in the subject. 110. Hayek, Constitution of Liberty, 239; and Schwartz, ‘‘Executive Power,’’ 503. 111. For Hayek, see Shklar, Legalism, 23. 112. The quotation ‘‘Everything Adolf Hitler Did in Germany Was ‘Legal’ ’’ is from Martin Luther King, Jr., ‘‘Letter from Birmingham Jail,’’ reprinted in Why We Can’t Wait (New York: Mentor, 1964), 76–95, 84. 113. This idea remained of considerable interest to political and legal intellectuals. In her work more than a decade later, Shklar pointed out that whatever eradication of legalism and legalistic thinking may have occurred under the Nazis, ‘‘remnants of them survived.’’ Indeed, ‘‘There was perhaps nothing else left of Germany’s more decent political traditions.’’ Shklar, Legalism, 168; and Hannah Arendt, ‘‘Approaches to the ‘German Problem’ ’’ (1945), reprinted in Essays in Understanding, 1930–1945, ed. Jerome Kohn (New York: Schocken Books, 1994), 106–20, 109. 114. Hayek, Constitution of Liberty, 237, 239. 115. Including, perhaps most prominently, Franz Neumann. His statements in Behemoth and elsewhere about the absence of ‘‘law in the fascist state’’ make descriptions of him as a legal positivist puzzling. For this characterization, see, for example, Ruete’s introduction to Neumann’s Rule of Law. 116. Wolfgang Friedmann, The Allied Military Occupation of Germany (London: Stevens & Sons, 1947), 11. 117. Hannah Arendt, On Revolution (1963; repr., New York: Penguin, 1990), 189– 90, citations refer to the Penguin edition; and Arendt, Crises of the Republic (New York: Harcourt Brace Jovanovich, 1970), 193–94. 118. This is made clear by the number of reviews of their books in a wide variety of academic and nonacademic journals. 119. Scheuerman, Between the Norm and the Exception. On the German e´migre´s and debates over the rule of law in Weimar Germany, see also Caldwell and Scheuerman, From Liberal Democracy to Fascism. 120. On the importance of equality, see Kirchheimer, ‘‘Legality and Legitimacy,’’ originally published in Die Gesellschaft 2, no. 7 (1932) and reprinted in Scheuerman, Rule of Law Under Siege, 44–63, 44; and Neumann, Rule of Law, chap. 15. See also Scheuerman, Between the Norm and the Exception, 104. 121. Fraenkel, Dual State and Neumann, Behemoth. Neumann published a revised edition of Behemoth in 1944 to take into account the more recent actions of the Nazis, which he accomplished by adding a lengthy appendix rather than by rewriting the extant text. 122. At this time, Fraenkel, having arrived in the United States in 1939 and having earned a second law degree at the University of Chicago, was a practicing lawyer in Washington, D.C. Losing his job in 1942 to the war effort, Fraenkel sought but did not find a permanent academic position. In 1944, he took a post with the Foreign Economic Administration (FEA), where he joined his fellow central European e´migre´

278

Notes to Pages 117–119

Hans Kelsen. The FEA was charged with the wartime planning of Germany’s postwar reconstruction, but the agency was dismantled in 1945. Fraenkel became an American citizen in 1944, but, atypically for his circle, moved back to Germany in 1951. For these and other biographical details, see Hubertus Buchstein, ‘‘Political Science and Democratic Culture: Ernst Fraenkel’s Studies of American Democracy,’’ German Politics and Society 21, no. 3 (2003): 48–73. 123. Scheuerman, Between the Norm and the Exception, 123. 124. Katz, Foreign Intelligence, 32. As Katz shows, the OSS Bureau would become an oasis for liberal and left-wing German thought. Others besides Neumann included Otto Kirchheimer, Herbert Marcuse, and Friedrich Pollock from the Frankfurt school in exile and the historians Hajo Holborn and Felix Gilbert (11). Katz notes, and Laudani reaffirms, that the Frankfurt school exiles—Neumann, Marcuse, and Kirchheimer—formed an unusual left-wing circle within the executive branch. On Behemoth and Neumann’s professional trajectory, see especially David Kettler, ‘‘Neumann, Franz,’’ in International Encyclopedia of the Social Sciences, 2nd ed., ed. William A. Darity, Jr., 9 vols. (Detroit: Macmillan Reference USA, 2008), 481–83; H. Stuart Hughes, The Sea Change: The Migration of Social Thought, 1930–1965 (New York: McGraw-Hill, 1975); and Thomas Wheatland, The Frankfurt School in Exile (Minneapolis: University of Minnesota Press, 2009), 232, 378. 125. William E. Scheuerman, ‘‘Social Democracy and the Rule of Law: The Legacy of Ernst Fraenkel,’’ in From Liberal Democracy to Fascism: Legal and Political Thought in the Weimar Republic, ed. Peter C. Caldwell and William E. Scheuerman (Boston: Humanities Press, 2000), 77. 126. Fraenkel, Dual State, v. Whereas Neumann was compelled to leave Germany after Hitler assumed power in 1933, Fraenkel, though also Jewish, remained for another five years, apparently ‘‘because he was an acknowledged veteran of the war and married to a non-Jewish wife.’’ See Buchstein, ‘‘Political Science and Democratic Culture,’’ 52. 127. Fraenkel, Dual State, v. 128. Fraenkel is still influential among certain legal academics and political scientists. Scheuerman writes that Fraenkel’s analysis of ‘‘National Socialist law . . . is superior to the powerful, but excessively economistic competing analysis provided by Franz Neumann.’’ ‘‘Social Democracy and the Rule of Law,’’ 75. Judith Shklar wrote as recently as 1987 that The Dual State is ‘‘one of the few older studies of the Third Reich that remain [sic] valid.’’ Shklar, ‘‘Political Theory and the Rule of Law,’’ 13. Shklar endorsed Fraenkel’s study because for her it indicated how the ‘‘formal rationality’’ of a legal system could serve to legitimate virtually any kind of legal practice. This reading of Fraenkel’s text, however, is not necessarily one that he would recognize. Shklar’s main purpose in invoking Fraenkel’s work was to bludgeon Lon Fuller’s argument on the ‘‘inner morality of law.’’ Neumann, it should be noted, did even more to theorize the concept of the rule of law, but his major publication on the subject, The Rule of

Notes to Pages 119–122

279

Law, based on his dissertation written under Harold Laski at the London School of Economics, was not published in English until 1986. 129. Fraenkel, Dual State, 46. 130. Ibid., 71. 131. Karl Loewenstein, ‘‘Office Diary,’’ August 18, 1945, Loewenstein Papers, Frost Library, Amherst College, box 46, folder 1. 132. Fraenkel, Dual State, 137. 133. Marshall Franklin, ‘‘The Legal System of Occupied Germany,’’ in Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound, ed. Paul Sayre (New York: Oxford University Press, 1947), 262–78, 275–76. 134. Fraenkel, Dual State, 46. 135. See generally ibid., pt. 1, chap. 3. 136. Ibid., 73. 137. Ibid. 138. Several scholars criticized Fraenkel for this omission. See, for example, F. Honig, ‘‘War Crimes Trials, Lessons for the Future,’’ International Affairs 26, no. 4 (1950): 522–32. 139. Friedmann advanced a similar argument in Allied Military Occupation and Legal Theory. 140. Fraenkel, Dual State, xiv. 141. Neumann, Behemoth, ‘‘Note on the Name Behemoth,’’ n.p. 142. Ibid., 448. Another commentator, reflecting upon a similar characteristic of Nazi legality, called it ‘‘a system of Non-Law.’’ See Franklin, ‘‘Legal System of Occupied Germany,’’ 277. 143. Scheuerman, ‘‘Social Democracy and the Rule of Law,’’ 90. 144. Neumann, Behemoth, 468. 145. Ibid., 440, 441. 146. Ibid., 451. 147. Ibid., 451. For a similar distinction between a technical rationality of means and a substantive rationality of ends, see Karl Mannheim, Man and Society in an Age of Reconstruction (New York: Harcourt Brace, 1940). Mannheim and Neumann owed a large debt to Max Weber, who theorized various types of rationality, including instrumental rationality. 148. Otto Kirchheimer, ‘‘The Legal Order of National Socialism,’’ in Politics, Law, and Social Change: Selected Essays of Otto Kirchheimer, ed. Frederic S. Burin and Kurt L. Schell (New York: Columbia University Press, 1969), 99; and Otto Kirchheimer, review of The Dual State: A Contribution to the Theory of Dictatorship, by Ernst Fraenkel, PSQ 56, no. 3 (1941): 434–36. For more on Kirchheimer’s life, see John H. Herz and Erich Hula, ‘‘Otto Kirchheimer: An Introduction to his Life and Work,’’ in Burin and Schell, Politics, Law, and Social Change, ix–xxxviii. 149. Scheuerman, Between the Norm and the Exception, 4. 150. Ibid.

280

Notes to Pages 123–129

151. Neumann, Rule of Law, esp. the introduction. 152. Neumann, Behemoth, 442–43; Neumann, Rule of Law, chap. 15. 153. Neumann, Behemoth, 446. 154. ‘‘Decisionism’’ was made infamous by Carl Schmitt, the pro-Nazi German legal and political theorist. 155. Ibid., 449. 156. Ibid. 157. See, for example, Friedmann, Allied Military Occupation, 11 and passim; and Neumann, Behemoth, 442. 158. Neumann, Behemoth, 448, 23–25; and Carl Joachim Friedrich, The Philosophy of Law in Historical Perspective (Chicago: University of Chicago Press, 1958), 218. 159. Neumann, Behemoth, 452. 160. Ibid., 455. 161. Ibid., 458. 162. Ibid., 449. 163. Ibid., 458. 164. Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964). 165. Hannah Arendt, The Origins of Totalitarianism (1951; repr., New York: Harvest/Harcourt Brace Jovanovich, 1973). On the legal aspects of Arendt’s thought, see Robert Burns, ‘‘Hannah Arendt’s Constitutional Thought,’’ in Amor Mundi, ed. James W. Bernauer (Boston: Martinus Nijhoff, 1987), 157–86; and Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (New York: Cambridge University Press, 2009). 166. Arendt, Origins of Totalitarianism, 461. 167. Ibid., 465. 168. Ibid., 460. 169. This is not to classify Arendt as a legal positivist tout court, although it is the school of legal theory with which she is most commonly identified by scholars. Like the positivists of her time, Arendt believed that law was a product of politics and possessed no metaphysical or necessarily moral properties. However, neither did law’s legitimacy and authority flow from the will of the sovereign, as the classical positivists held, or from its embodiment in rules. Rather, law was a product of the consent, or agreement, of the citizens governed by it. 170. Arendt, Origins of Totalitarianism, 460. 171. Ibid. 172. Political theorists Peter C. Caldwell and William E. Scheuerman suggest that many of the German e´migre´s discussed in this chapter were largely responsible for the Western reassessment of legal positivism that took place following the war, not least in the United States. See especially Caldwell and Scheuerman, From Liberal Democracy to Fascism, 9. On related changes in New York, see William E. Nelson, The Legalist

Notes to Pages 129–134

281

Reformation: Law, Politics, and Ideology in New York, 1920–1980 (Chapel Hill: University of North Carolina Press, 2001). 173. Kirchheimer, ‘‘Legal Order of National Socialism,’’ 99; and Kirchheimer, ‘‘In Quest of Sovereignty,’’ 165. Chapter 4. Liberal Democracy Conducts an Occupation and a War Crimes Tribunal 1. Hajo Holborn, American Military Government: Its Organization and Policies (Washington, DC: Infantry Journal Press, 1947), xi. 2. As with Nazi Germany during the war, German military occupation and governance received far greater attention than that of other countries such as Austria and Japan. On the relatively sparse attention paid to the latter, see Jay B. Krane, ‘‘Polls, Press and Occupation Policy,’’ Columbia Journal of International Affairs 2, no. 1 (1948): 71–82, 75. 3. Karl Loewenstein, the German e´migre´ legal adviser to the U.S. military government in Berlin, not untypically referred to the American occupation as a ‘‘benevolent dictatorship.’’ See his letter to the editor of the New York Times, December 8, 1948. 4. For the purposes of clarity, I will discuss these two events sequentially, although they overlapped in practice. 5. Carl J. Friedrich, ‘‘Military Government as a Step Toward Self-Rule,’’ Public Opinion Quarterly 7, no. 4 (1943): 527–41, 531; and Holborn, American Military Government, 107. 6. Herman Phleger, Sixty Years in Law, Public Service and International Affairs, Regional Oral History Office, Bancroft Library, University of California (Berkeley: Regents of the University of California, 1979), 154. Available online at http://www .archive.org/stream/sixtyyrsinlawpub00phlerich/sixtyyrsinlawpub00phlerich_djvu.txt. 7. Friedrich, ‘‘Military Government as a Step Toward Self-Rule,’’ 537. 8. Otto Kirchheimer, ‘‘Legality and Legitimacy,’’ in The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, ed. William E. Sheuerman (Berkeley: University of California Press, 1996), 44–63, 48. 9. Ernst Fraenkel, Military Occupation and the Rule of Law: Occupation Government in the Rhineland, 1918–1923 (London: Oxford University Press, 1944), 227. 10. Carl J. Friedrich, ‘‘Military Government and Dictatorship,’’ Annals of the American Academy of Political and Social Science 267 (1950): 1–7, 7; and Friedrich, Constitutional Government and Democracy, rev. ed. (Boston: Ginn, 1950), 596. 11. Kirchheimer, ‘‘Legality and Legitimacy,’’ 48. 12. Arnold Brecht, ‘‘Democracy—Challenge to Theory,’’ Social Research 13, no. 2 (1946): 195–224, 220. 13. Mary L. Dudziak’s argument that ‘‘wartime’’ and ‘‘peacetime’’ are not precisely demarcated temporalities but rather ways of arguing for particular legal and political practices helps to make sense of the continuities in the American state during

282

Notes to Pages 134–136

and after the war. See her War Time: An Idea, Its History, Its Consequences (New York: Oxford University Press, 2012), 8, 136. This continuity did not go unnoticed by critical liberals at the time. Having claimed in 1943, as we have seen, that the emergency Constitution of World War I had become the normal Constitution of the New Deal, Corwin wrote in 1947, ‘‘For the first time in our history there is, following a great war, no peacetime Constitution to which we may expect to return in any wholesale way, inasmuch as the Constitution of peacetime and the Constitution of wartime have become, thanks to the New Deal, very much the same Constitution.’’ Edward S. Corwin, Total War and the Constitution (New York: Knopf, 1947), 172. 14. Brecht, ‘‘Democracy,’’ 195. 15. John D. Montgomery, Forced to Be Free: The Artificial Revolution in Germany and Japan (Chicago: University of Chicago Press, 1957), 2. 16. Franz Neumann, ‘‘The Revival of German Political and Constitutional Life Under Military Government,’’ in Secret Reports on Nazi Germany: The Frankfurt School Contribution to the War Effort, ed. Raffaele Laudani (Princeton, NJ: Princeton University Press, 2013), 412–35, 421. Documents referred to in this valuable collection were written by Franz Neumann and Otto Kirchheimer for the Research and Analysis Branch of the Office of Strategic Services in 1944 and 1945. See also Karl Loewenstein, Political Reconstruction (New York: Macmillan, 1946), 292–96. For the dilution of American denazification policy, see, for example, John H. Herz, ‘‘The Fiasco of Denazification in Germany,’’ PSQ 63, no. 4 (1948): 569–94. 17. Brecht, ‘‘Democracy,’’ 220. Brecht proposed that certain civil rights be untouchable under any circumstances: ‘‘emergency-proof rights,’’ as the proposed French constitution of 1946 called them (223). 18. Max Ascoli, ‘‘War Aims and America’s Aims,’’ Social Research 8, no. 1 (1941): 267–82, 268–69. An Italian Jew who fled Italy’s fascist regime, Ascoli shared much intellectually and politically with his German-Jewish colleagues at the New School. As with the German refugees, Ascoli studied law during the interwar period and was interested in the rule of law ideal. For a similar idea of ‘‘political tutelage’’ for unreconstructed totalitarian countries, see Loewenstein, Political Reconstruction, 330. 19. Harold Zink, American Military Government in Germany (New York: Macmillan, 1947), 2; Loewenstein, Political Reconstruction, 336; and Max Rheinstein, ‘‘The Legal Status of Occupied Germany,’’ Michigan Law Review 47, no. 1 (1948): 23–40. Rheinstein, a German e´migre´ law professor at the University of Chicago, served as a legal adviser in Berlin with Karl Loewenstein. They often disagreed about denazification and legal reform. See Karl Loewenstein, ‘‘Office Diary,’’ August 1945–July 1946, Loewenstein Papers, Frost Library, Amherst College, box 46, folder 1 (hereafter OD). 20. Zink, American Military Government, 5. On the disinclination early on of American occupation policymakers to worry about the Soviet Union, see Carl J. Friedrich, ‘‘The Legacies of the Occupation of Germany,’’ Public Policy 17 (1968): 1–26, 3; and Arnold S. Zurcher, review of Political Reconstruction, by Karl Loewenstein, APSR 40, no. 3 (1946): 586–88.

Notes to Pages 136–137

283

21. This policy was articulated by the Declaration on General Security, more commonly known as the Moscow Declaration. U.S. Department of State, Foreign Relations of the United States Diplomatic Papers, 1943, General (Washington, DC: Government Printing Office, 1943), 513–781. 22. Interestingly, the effort by the United States in the 1940s to remake Germany and Japan in its image was summoned by the Bush administration to justify its mission for a ‘‘regime change’’ in Iraq. ‘‘This is a period not just of grave danger but of enormous opportunity . . . a period akin to 1945 to 1947, when American leadership expanded the number of free and democratic states—Japan and Germany among the great powers—to create a new balance of power that favored freedom,’’ Condoleezza Rice, President Bush’s national security advisor, told an audience at Johns Hopkins University in April 2002. The differences between the two situations are obviously many. To note only two of the most important: As Afghanistan has shown, there are few incentives for the United States today to rebuild any developing country defeated in war. Global capitalism is not at stake, nor is the U.S. position as the world hegemon, as they were in the immediate aftermath of World War II. Second, pace Rice, there can be no comparison of the ‘‘grave danger’’ that terrorists or rogue states may pose today with that of the imperialist and expansionist, not to say eugenicist, Nazis regime. Rice quoted in Frances FitzGerald, ‘‘George Bush & the World,’’ New York Review of Books 49, no. 14 (September 26, 2002): 80–86. 23. ‘‘Memorandum for the President,’’ September 29, 1944, series III, Diplomatic Correspondence, box 31, Germany: Oct. 1944–45, Franklin D. Roosevelt, Papers as President: The President’s Secretary’s File (PSF), 1933–1945. On October 20, 1944, FDR responded to Secretary of State Henry Stimson with skepticism that a comprehensive vision for the future of Germany could be devised while the fighting continued: ‘‘In view of the fact that we have not yet occupied Germany, I cannot agree at this moment as to what kind of a Germany we want in every detail.’’ Retrieved from http:// www.fdrlibrary.marist.edu/archives/collections/franklin/?p⳱collections/findingaid& id⳱502&q⳱&rootcontentid⳱140122噛id140122. 24. Zink, American Military Government, 2; and John Gimbel, The American Occupation of Germany (Stanford, CA: Stanford University Press, 1968), 147. 25. For the ebb and flow of the American media’s attention to the German occupation, see Krane, ‘‘Polls, Press and Occupation Policy.’’ 26. For their role during the war, see Barry M. Katz, Foreign Intelligence: Research and Analysis in the Office of Strategic Services, 1942–1945 (Cambridge, MA: Harvard University Press, 1989); for their role in advising and providing analysis for the occupation, see Claus-Dieter Krohn, Intellectuals in Exile: Refugee Scholars and the New School for Social Research, trans. Rita and Robert Kimber (Amherst: University of Massachusetts Press, 1993), 145–48; Jeffrey S. Gaab, Justice Delayed: The Restoration of Justice in Bavaria Under American Occupation, 1945–1949 (New York: Peter Lang, 1999); Axel Fair-Schulz, ed., German Scholars in Exile: New Studies in Intellectual History (Lexington, MA: Lexington Books: 2011); and especially Laudani, ed., Secret

284

Notes to Pages 137–139

Reports on Nazi Germany. Books written by participants include Carl Friedrich, American Experiences in Military Government in World War II (New York: Rinehart, 1948); and Zink, American Military Government. 27. Friedrich, who was governmental affairs adviser to the Occupation Military Government of the United States (OMGUS) from 1946 to 1949, was constitutional and governmental affairs adviser to Lucius D. Clay, the military governor of Germany from 1947 to 1948; Loewenstein served from August 1945 through August 1946 as a legal consultant in OMGUS’s Legal Division—Berlin. 28. Gaab, Justice Delayed, 48–49. On the Legal Division, see R. W. Kostal, ‘‘The Alchemy of Occupation: Karl Loewenstein and the Legal Reconstruction of Nazi Germany, 1945–1946,’’ Law and History Review 29, no. 1 (2011): 1–52, 17–18. Solicitor General Charles H. Fahy presided as the first director of the Legal Division. Judge J. Warren Madden and the lawyer Herman Phleger served as the division’s associate directors. 29. Karl Loewenstein, OD, February 25, 1946. 30. The War Department oversaw the occupation effort from Washington. 31. Department of State Bulletin, vol. 12, no. 311 (Washington, DC: Government Printing Office, June 10, 1945), 1051. 32. The Potsdam Conference was held from July 17, 1945, to August 2, 1945. Protocol of the Proceedings of the Berlin Conference, U.S. Department of State, Foreign Relations of the United States: Diplomatic Papers: the Conference of Berlin (the Potsdam Conference), 1945, vol. 2 (Washington, DC: Government Printing Office, 1945), 1478–1514. Signed ‘‘a few minutes after midnight,’’ the protocol is variously dated either August 1 or August 2, 1945. 33. Ibid., 1483. 34. Karl Loewenstein, ‘‘Law and the Legislative Process in Occupied Germany: I,’’ Yale Law Journal 57, no. 5 (1948): 724–60, 745, 746. 35. Karl Loewenstein, ‘‘Justice,’’ in Governing Postwar Germany, ed. Edward H. Litchfield, et al. (Ithaca, NY: Cornell University Press, 1953), 236; and Gaab, Justice Delayed, 49. Bold statements at Potsdam and in other international agreements about the need for eradicating legal discrimination in Germany did not go unnoticed by African Americans, who accused the United States of ‘‘failing to practice what it preached.’’ Quoted in Penny M. Von Eschen, Race Against Empire (Ithaca, NY: Cornell University Press, 1997), 116. For a broader discussion of this dynamic, see Carol Anderson, Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944–1955 (New York: Cambridge University Press, 2003). 36. The Allies instituted a new federal structure in Germany after the war, and the occupation zones encompassed more than one state. 37. Kostal, ‘‘Alchemy of Occupation,’’ 16. Until this article appeared in 2011, as Kostal points out, there were few studies of the commanding legal aspect of the American occupation government, and almost nothing on the German e´migre´s’ significant

Notes to Pages 139–140

285

contribution to it. Two case studies have probed the legal and political machinations in various regions within Germany: Andrew Szanajda, The Restoration of Justice in Hesse, 1945–1949 (New York: Lexington Books, 2007); and Gaab, Justice Delayed. A few German-language studies exist as well. For the state of the literature, see Kostal, ‘‘Alchemy of Occupation,’’ 4. Kostal’s article includes an excellent discussion, through the lens of Loewenstein’s experience in the Legal Division, of the intellectual conundrums in which the military government and its academic legal advisers found themselves. 38. Friedrich pointed out at the time that the most recent U.S. military field manuals did not contain any discussion of the promotion of democratic self-rule as part of the mission of a military occupation. See his American Experiences in Military Government, 12. 39. Kostal, relying heavily on Loewenstein’s account of the internal politics and administrative incompetence of the Legal Division, also refers to the U.S. military government operation in Germany as a ‘‘bureaucratic occupation.’’ On the civilianization of the American occupation forces, see Holborn, American Military Government, 11–14, 60–61, 107. For the military’s aversion to ‘‘the establishment of self-rule’’— now known as ‘‘nation-building’’—see Friedrich, ‘‘Military Government as a Step Toward Self-Rule,’’ 527–41. On the tensions between civilian bureaucrats and military officers, see generally Loewenstein, OD, and Kostal, ‘‘Alchemy of Occupation.’’ 40. Loewenstein, OD, March 20, 1946, and March 21, 1946. 41. Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (Cambridge, MA: Harvard University Press, 2005). 42. For an overview of these issues, see Edward H. Litchfield, ‘‘Political Objectives and Legal Bases of Occupation Government,’’ in Litchfield et al., Governing Postwar Germany, 3–18; and a series of articles by Quincy Wright, especially ‘‘International Affairs: International Law and the Totalitarian States,’’ APSR 35, no. 4 (1941): 738–43. In addition to teaching international law at the University of Chicago, Wright was a consultant to the State Department and a technical adviser to the U.S. delegation of the International Military Tribunal. 43. On this distinction, see Litchfield et al., Governing Postwar Germany, 12–15; Rheinstein, ‘‘Legal Status of Occupied Germany,’’ 24–26; Carl J. Friedrich, ‘‘Rebuilding the German Constitution, I,’’ APSR 43, no. 3 (1949): 461–482, 474; and Ernst Fraenkel, Military Occupation and the Rule of Law: Occupation Government in the Rhineland, 1918–1923 (London: Oxford University Press, 1944), 183–206. But compare Charles Fahy, OMGUS’s legal director, who unlike the legalists and despite admitting the lack of precedent for the Allied occupation under the circumstances, was convinced of its legality. Fahy justified the Allies’ ‘‘assumption of sovereignty’’ as ‘‘a development of a war initiated and prosecuted by Germany in violation of international law.’’ Charles Fahy, ‘‘Legal Problems of German Occupation,’’ Michigan Law Review 47, no. 1 (1948): 11–22, 12.

286

Notes to Pages 141–144

44. Pitman B. Potter, ‘‘Legal Bases and Character of Military Occupation of Germany and Japan,’’ American Journal of International Law 43, no. 2 (1949): 323–25, 323. 45. Ibid., 324. The Potsdam Agreement stated that the Allies would not annex territory. 46. Litchfield et al., Governing Postwar Germany, 14. 47. Franz Neumann, ‘‘The War Crimes Trials,’’ World Politics 2, no. 1 (1949): 135–47, 138. 48. Litchfield et al., Governing Postwar Germany, 10. 49. John H. Herz, review of Military Occupation and the Rule of Law: Occupation Government in the Rhineland, 1918–1923, by Ernst Fraenkel, American Journal of International Law 39, no. 2 (1945): 359–60. 50. Fraenkel, Military Occupation and the Rule of Law, 275. 51. Franz L. Neumann, ‘‘Military Government and the Revival of Democracy in Germany,’’ Columbia Journal of International Affairs 2, no. 1 (1948): 3–20, 5. Some scholars who have studied the Allied occupation of Germany have asserted that the Americans gave their military more control over policymaking and operations, especially at the outset of the postwar occupation, than their democratic counterparts. The War Department coordinated the policy direction from Washington, while a succession of military governors, most prominently General Lucius D. Clay (1947–49) and John J. McCloy (1949–52), served as the managers in the field. On this see Edward N. Peterson, The American Occupation of Germany: Retreat to Victory (Detroit, MI: Wayne State University Press, 1977), 20. On the American occupation of Germany more generally, see, for example, Friedrich, American Experiences in Military Government; Gabriel A. Almond, ed., The Struggle for Democracy in Germany (Chapel Hill: University of North Carolina Press, 1949); Robert Wolfe, ed., Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 (Carbondale: Southern Illinois University Press, 1984); Gaab, Justice Delayed; and Holborn, American Military Government; and Montgomery, Forced to Be Free. 52. Neumann, ‘‘Military Government,’’ 5–6. 53. Neumann, ‘‘Military Government,’’ 6. For similar views, see Brecht, ‘‘Democracy,’’ 202; and Otto Kirchheimer, ‘‘Notes on the Political Scene in Western Germany,’’ World Politics 6, no. 3 (1954): 306–21, 316. 54. Neumann, ‘‘Revival of German Political and Constitutional Life,’’ 428. 55. William E. Griffith, ‘‘Denazification in the U.S. Zone of Germany,’’ Annals of the American Academy of Political and Social Science 267 (1950): 68–76, 75. By 1947, the controversial denazification campaign was all but abandoned, with the support of the German elite against the communists deemed more important than ridding from positions of political and economic power perpetrators or fellow travelers of genocidal policies. Beyond this loss of will, there were many technical problems in determining who exactly was a Nazi, but whether the system could have been made to work

Notes to Pages 144–148

287

remains unknown. On the support for Germany’s old-line ruling classes and increasing anticommunism, see Wolfgang Friedmann, review of American Experiences in Military Government in World War II, by Carl Friedrich et al., American Journal of International Affairs 25, no. 1 (1949): 92–93; Richard L. Merritt, Democracy Imposed: U.S. Occupation Policy and the German Public, 1945–1949 (New Haven: Yale University Press, 1995), 264–65; and Almond, Struggle for Democracy in Germany, pt. 2. 56. Loewenstein, OD, January 17, 1946. 57. Loewenstein, OD, March 13, 1946, April 10, 1946. To add insult to the situation, conservative Germans in the South favored non-retroactivity. 58. Loewenstein, OD, July 1, 1946. 59. Loewenstein, Political Reconstruction, 303–4. 60. Loewenstein, OD, September 5, 1945. 61. Loewenstein, Political Reconstruction, vii–viii. 62. See especially Neumann, ‘‘Military Government.’’ 63. Ibid., 17. 64. Ibid., 18. 65. Ibid. See also Neumann, ‘‘Revival of German Political and Constitutional Life,’’ 429. 66. Hans Kelsen, ‘‘Is a Peace Treaty with Germany Legally Possible and Politically Desirable?,’’ APSR 41, no. 6 (1947): 1188–93. 67. Han Kelsen, ‘‘The Legal Status of Germany According to the Declaration of Berlin,’’ American Journal of International Law 39, no. 3 (1945): 518–26, 521. Kelsen acknowledged that the unconditional surrender was signed by Hitler’s anointed successor, Grand Admiral Karl Do¨nitz, but that even if Do¨nitz were considered a legitimate agent of the German state, his subsequent arrest and that of his aides ‘‘abolished this government’’ (519). 68. Hans Kelsen, The Pure Theory of Law, trans. from the 2nd German ed. by Max Knight (Berkeley: University of California Press, 1967), chap. 6; and Kelsen, ‘‘Legal Status,’’ 519. 69. Quoted in ibid., 518. 70. The state of war technically lasted until President Truman signed the declaration ending the war in July 1951. Even then, as mentioned, the occupation powers maintained partial control over West Germany as a condition of the Basic Law of 1949 and the Occupation Statute of April 10, 1949. On this issue see Carl J. Friedrich, ‘‘Rebuilding the German Constitution, I,’’ APSR 43, no. 3 (1949): 461–82; Friedrich, ‘‘Rebuilding the German Constitution, II,’’ APSR 43, no. 4 (1949): 704–20; Friedrich, ‘‘Legacies of the Occupation’’; Arnold Brecht, ‘‘Re-establishing German Government,’’ Annals of the American Academy of Political and Social Science 267 (1950): 28–42; and Franz L. Neumann, ‘‘German Democracy 1950,’’ International Conciliation 28, no. 461 (1950): 249–96. 71. Kelsen, ‘‘Legal Status,’’ 522. 72. Ibid., 520.

288

Notes to Pages 148–151

73. Ibid., 521. 74. Ibid. 75. Albert L. Sturm, ‘‘Emergencies and the Presidency,’’ Journal of Politics 11, no. 1 (1949): 121–44, 121. 76. Roosevelt was the first president to standardize the procedure for issuing an executive order. He did so in EO 6247 of August 1933. Andrew Rudalevige, ‘‘The Contemporary Presidency: Executive Orders and Presidential Unilateralism,’’ Presidential Studies Quarterly 42, no. 1 (2012): 138–60, 148. 77. Department of State Bulletin, September 9, 1939, 1, no. 11 (Washington, DC: Government Printing Office, 1939), 216; and Department of State Bulletin, May 31, 1941, 4, no. 101 (Washington, DC: Government Printing Office, 1941), 654. 78. Karl Loewenstein, review of Constitutional Government, by Carl Friedrich, APSR 31, no. 5 (1937): 956–57; and Sturm, ‘‘Emergencies and the Presidency.’’ There were important exceptions to this general rule for the justification of emergency powers. Many critical liberals made that clear at the time of the internment of the Japanese and the sentencing of the ‘‘Nazi saboteurs’’ without trial. See, for example, Robert E. Cushman, ‘‘The Case of the Nazi Saboteurs,’’ APSR 36, no. 6 (1942): 1082–91; Edward S. Corwin, ‘‘The War and the Constitution: President and Congress,’’ APSR 37, no. 1 (1943): 18–25; and Corwin, Total War and the Constitution. 79. Herz, ‘‘Fiasco of Denazification, 570. 80. Cornelius P. Cotter and J. Malcolm Smith, The Powers of the President During Crises (Washington, DC: Public Affairs Press, 1960), 11. 81. Frederick M. Watkins, ‘‘The Problem of Constitutional Dictatorship,’’ Public Policy 1 (1940): 331. 82. Ibid., 332, 333. 83. Sturm, ‘‘Emergencies and the Presidency,’’ 122. 84. Friedrich acknowledged as much in his revised edition of Constitutional Government and Democracy (1950), where he referred to constitutional dictatorship as a ‘‘suspension of legal norms’’ (595–96). 85. Loewenstein, ‘‘Justice,’’ 237. 86. The Occupation Statute of April 10, 1949, promulgated at the request of the Germans, was the first document to delineate specific Allied powers over a reformed Germany. See Arnold Brecht, ‘‘Re-establishing German Government,’’ 36. 87. The Soviet Union refused to go along with the proposed constitutional principles and was by this point governing eastern Germany on its own terms. West German occupiers retained the power to declare a ‘‘state of emergency.’’ Brecht, ‘‘Re-establishing German Government,’’ 36; and Friedrich, ‘‘Legacies of Occupation,’’ 20. The Germans insisted that in its initial incarnation of 1949 the constitution be known as the ‘‘Basic Law’’ because it did not have the sanction of Germans living in East Germany under Soviet rule. As such, it could not be deemed a legitimate constitution, which required national popular consent. Friedrich, ‘‘Legacies of the Occupation,’’ 14. (Friedrich was a principal adviser to the constituent assembly that drew up the Basic

Notes to Pages 151–155

289

Law in his capacity as a consultant to General Clay.) See also Lucius D. Clay, Decision in Germany (New York: Doubleday, 1950), 409–10. 88. Friedrich, ‘‘Legacies of the Occupation,’’ 7. 89. Wolfgang Friedmann, The Allied Military Government of Germany (London: Stevens & Sons, 1947), 175. 90. Eli E. Nobleman, ‘‘American Military Government Courts in Germany,’’ Annals of the American Academy of Political and Social Science 267 (1950): 87–97, 90. 91. Ibid. 92. Loewenstein, OD, March 4, 1946. 93. On appeals to ‘‘necessity’’ as an ‘‘illegal’’ means by democracies to assert their power, see Hannah Arendt, Eichmann in Jerusalem, rev. ed. (1963; repr., New York: Penguin, 1977), 291, citations refer to the reprint edition. 94. Friedrich, ‘‘Military Government and Dictatorship,’’ 1. See also Friedrich, Constitutional Government and Democracy, chap. 13. 95. Friedrich, ‘‘Military Government and Dictatorship,’’ 7, 3. 96. There were practical counterparts to these arguments as well. ‘‘There are many who feel that not enough force has been used’’ in Germany. Ibid., 7. 97. Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948; repr., Westport, CT: Greenwood Press, 1979), vii. 98. Ibid., 4. 99. Rossiter did discuss Roosevelt’s use of emergency powers to intern Japanese at a later point in the book. See 266 and 280–84. 100. Karl Loewenstein, review of Constitutional Dictatorship, by Clinton L. Rossiter, APSR 42, no. 5 (1948): 1006–9, 1008. 101. Ibid. 102. Ibid., 1007. 103. Otto Kirchheimer, ‘‘Weimar—And What Then?,’’ in Politics, Law, and Social Change: Selected Essays of Otto Kirchheimer, ed. Frederic Burin and Kurt Shell (New York: Columbia. University Press, 1969), 33–74, 41. 104. Friedrich became increasingly ambivalent about Article 48, perhaps because of his position on constitutional dictatorship. In the original edition of his widely read text book Constitutional Government and Politics, 1st ed. (New York: Harper & Brothers, 1937), Friedrich included a discussion of the clause under the heading ‘‘the flaws in the Weimar Constitution’’ (215). By 1941, Friedrich had eliminated the discussion of the Weimar Constitution and substituted a section on legislative emergency powers. He now blamed Hitler’s successful accession to power on his manipulation of the 1933 elections rather than on constitutional flaws. Carl Friedrich, Constitutional Government and Democracy, 2nd ed. (Boston: Ginn, 1941), 149–51. 105. Under Article 48, the Reichstag could demand that the president cease the use of emergency powers. 106. At this juncture, the constitutional suspensions most often concerned civil liberties.

290

Notes to Pages 155–160

107. According to Brecht, while Article 48 had been utilized many times in the past, other political leaders who invoked these emergency powers, such as President Friedrich Ebert after World War I, included in their decrees an element that Hitler did not: the equivalent of a habeas corpus provision, whereby ‘‘an interned person must be heard before an ordinary court within twenty-four hours of his arrest.’’ Arnold Brecht, Prelude to Silence: The End of the German Republic (New York: Oxford University Press, 1944), 90. See also Arthur J. Jacobson and Bernhard Schlink, eds., Weimar: A Jurisprudence of Crisis, trans. Belinda Cooper. (Berkeley: University of California Press, 2000), especially the introduction. 108. Brecht, Prelude to Silence, 97. Hitler’s numerous coercive machinations to obtain legislative approval for the Enabling Act are beyond the provenance of this book, but it should be noted that under any reasonable definition of democracy, this legislation was not arrived at democratically. 109. Brecht, Prelude to Silence, 98. See also Wolfgang Friedmann, review of Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Nuernberg Military Tribunals, vol. 3, Harvard Law Review 67, no. 7 (1954): 1284–91, 1291. Friedmann was teaching at the University of Toronto when he published this article, but his works were widely read in the United States. The following year he become a law professor at Columbia University Law School, where he spent the rest of his career as an international law specialist. 110. Friedrich, ‘‘Military Government as a Step Toward Self-Rule,’’ 536. 111. Ibid., 540; and Wolfgang Friedmann, Legal Theory, 2nd ed. (London: Stevens and Sons, 1949), 259. 112. Friedrich, ‘‘Military Government as a Step Toward Self-Rule,’’ 540. 113. Ibid., 539, italics added. 114. Ibid., 541. 115. Marshall Franklin, ‘‘The Legal System of Occupied Germany,’’ in Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound, ed. Paul Sayre (New York: Oxford University Press, 1947), 262–78, 264. 116. Ibid., 266, italics added. 117. Ibid., 267. 118. Ibid., 275. 119. Ibid., 276. 120. Ibid., 278. 121. A. H. Campbell, ‘‘Fascism and Legality,’’ Law Quarterly Review 62, no. 2 (1942): 141–51, 148. Campbell was a British legal academic but raised concerns similar to those of his German-American counterparts. 122. Friedrich, Constitutional Government and Democracy, 239. This worry, expressed in this influential textbook on constitutionalism, did not appear in his writings on military occupation, or in his 1950 edition of the same textbook, where he instead noted that the ‘‘dilemma’’ of the Cold War, or what he liked to call ‘‘the world revolutionary situation,’’ was ‘‘similar to the dilemma we confronted in the rise of

Notes to Pages 160–162

291

Hitler.’’ Carl Friedrich, Constitutional Government and Democracy, rev. ed. (1941; repr., Boston: Ginn, 1950), 596. That dilemma entailed the use of authoritarian political methods to ward off an ‘‘imminent’’ threat to constitutional democracy. 123. Friedrich, Constitutional Government and Democracy, 247. 124. Quoted in Arendt, Eichmann in Jerusalem, 291. 125. Jack N. Rakove has argued that Federalists such as Madison carefully managed ratification procedures by, for example, turning proposals for amendments into ‘‘mere recommendations’’ so as to limit democratic participation in drafting the document. They recognized that ‘‘the genie of popular sovereignty, once it had been released from its sacred vessel,’’ had the potential to undermine the cause of constitutionalism. Rakove, ‘‘Thinking Like a Constitution,’’ Journal of the Early Republic 24, no. 1 (2004): 1–26, 14. This tension between democracy and constitutionalism has been the subject of much recent political philosophy. See, for example, Ju¨rgen Habermas, ‘‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’’ and responses by Alessandro Ferrara and Bonnie Honig in Political Theory 29, no. 6 (2001): 766–81. See also Robert Barros, Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution (New York: Cambridge University Press, 2002). 126. This, of course, is an age-old problem in political theory. Rousseau, for example, felt his democratic republic required a lawgiver who would, prior to the formation of a democratic political community, inculcate in citizens the civic awareness required of a self-governing people. In the 1950s, this idea would take its modern form in mass society theory. 127. Interestingly, Hayek was not among those who worried about the ‘‘legal scruples,’’ as he put it, of punishing the Nazis. F. A. Hayek, ‘‘A Plan for the Future of Germany,’’ in The Fortunes of Liberalism, vol. 4 of The Collected Works of F. A. Hayek, ed. Peter G. Klein (Chicago: University of Chicago Press, 1992), 223–36, 223. 128. Richard A. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999), 214. 129. Stanley L. Paulson, ‘‘Classical Legal Positivism at Nuremberg,’’ Philosophy and Public Affairs 4, no. 2 (1975): 132–58. 130. Another reason for scrapping the execution-before-trial (as opposed to the execution-after-trial) plan was that it became closely associated with the radical vision of Henry Morgenthau, who sought to decimate the German nation. 131. Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2001), 145–207. 132. Twenty-four Nazis were indicted by the IMT and twenty-one were tried. Martin Bormann was tried in absentia, Gustav Krupp’s ill health prevented him from standing trial, and Robert Ley committed suicide before the proceedings began. Of the twenty-one, three were acquitted, twelve were sentenced to death by hanging, and the remainder were given prison sentences of varying lengths. 133. Sheldon Glueck, The Nuremberg Trial and Aggressive War (New York: Knopf, 1946). Glueck’s earlier book, War Criminals: Their Prosecution and Punishment (New

292

Notes to Pages 162–165

York: Knopf, 1944), did not discuss the possibility of charging Nazis with aggressive war. At that time Glueck expressed doubts about the legality of this approach. Two years later, he had overcome those doubts, and his second book on the subject was adorned with a foreword by chief Nuremberg prosecutor Robert H. Jackson. 134. On the trial’s skeptics, see Francis Biddle, ‘‘The Nurnberg Trial,’’ Virginia Law Review 33, no. 6 (1947): 678–96. 135. Numerous other war crimes trials took place in Germany run by national military courts and authorized by Allied Control Council Law 10 by separate agreement on December 20, 1945. For excellent discussions of these trials, see Peter MacGuire, Law and War: An American Story (New York: Columbia University Press, 2001); and Jeffrey Herf, Divided Memory: The Nazi Past in the Two Germanys (Cambridge, MA: Harvard University Press, 1987). 136. Charles E. Wyzanski, Jr., ‘‘Nuremberg—A Fair Trial?,’’ Atlantic Monthly, April 1946, 66–70. Wyzanski served in the Department of Justice and in the Office of the Solicitor General during the 1930s. Roosevelt nominated Wyzanski to the federal bench in 1941. 137. A preponderance of scholars argued that at the time it was signed, most countries did not see the pact as inaugurating a new era of peace, and certainly not as an international instrument for criminal punishment. For references, see Erich Hula, ‘‘Punishment for War Crimes,’’ Social Research 13, no. 1 (1946): 1–23. 138. Indeed, these were no ordinary trials. The charter of the International Military Tribunal did not try to hide the obvious deviations from a strict adherence to legality. The charges against the Nazis revealed a new legal approach to war crimes, while other articles within the document signaled procedural departures from Western, especially Anglo-American, law. For example, Article 19 read, ‘‘The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.’’ Article 21 proclaimed, ‘‘The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.’’ For the Nuremberg trial as a political trial, see Loewenstein, Political Reconstruction, 323–41; and Judith Shklar, Legalism: Law, Morals, and Political Trials (1964; repr., Cambridge, MA: Harvard University Press, 1986), 145–48, 153–64. 139. Quincy Wright, ‘‘War Criminals,’’ American Journal of International Law 39, no. 2 (1945): 257–85, 258. See also Bass, Stay the Hand of Vengeance, 145–207. Ironically, these same legal ‘‘niceties,’’ such as the prohibition on ex post facto law, were incorporated into the Allied-supervised state constitutions of Germany as early as 1946. Gaab, Justice Delayed, 47. 140. Hans Kelsen, Peace Through Law (Chapel Hill: University of North Carolina Press, 1944), 7; and Leo Gross, Essays on Law and Organization, Vol. 1. (Dobbs Ferry, NY: Transnational Publishers, 1984), 355. Before revising his views Judge Wyzanski shared Gross’s position, which remained a minority view. 141. Germany did, eventually, hold its own war crimes trials.

Notes to Pages 165–170

293

142. Kelsen, Peace Through Law, 71. 143. Charles E. Wyzanski, Jr., ‘‘Nuremberg in Retrospect,’’ Atlantic Monthly, December 1948, 56–59. 144. Ibid. See also Bernard D. Meltzer, ‘‘A Note on Some Aspects of the Nuremberg Debate,’’ University of Chicago Law Review 14, no. 3 (1947): 455–69, quoting Wyzanski as having changed his mind about the issue of retroactivity. 145. The idea of individual responsibility toward the global community was thought to be the concomitant of the individual rights expressed in such international documents as the Atlantic Charter (1941), the United Nations Charter (1945), and the Universal Declaration of Human Rights (1948), along with myriad other international conventions and treaties to follow. On the intellectual, political, and legal trajectories of international human rights in this period, see Borgwardt, New Deal for the World. 146. Kelsen, Peace Through Law, 105. 147. This is the distinction between a law that is void at the moment of its issuance and a law found to be illegal after the fact. The latter would not apply, Kelsen argued, in the context of assessing the criminality of following morally reprehensible or legally questionable superior orders. ‘‘Cases of absolute nullity . . . of acts of Government are very rare.’’ Kelsen, Peace Through Law, 105. 148. Ibid. 149. Ibid., 106. 150. Ibid., 119. 151. Glueck, Nuremberg Trial and Aggressive War, 24–45. 152. German courts heard many cases that raised the question of whether citizens who followed unjust Nazi laws should be punished for what would have been an illegal act under a nontotalitarian legal regime. More often than not, the courts answered ‘‘yes.’’ 153. Franz Neumann, ‘‘Problems Concerning the Treatment of War Criminals,’’ in Laudani, Secret Reports on Nazi Germany, 457–63, 462–63. 154. For Neumann’s role in the Nuremberg trials, see Laudani, Secret Reports on Nazi Germany, 18, 21; Michael Salter, Nazi War Crimes, U.S. Intelligence and Selective Prosecution at Nuremberg: Controversies Regarding the Role of the Office of Strategic Services (New York: Routledge-Cavendish, 2007), esp. 6–8, 259, 302–6, 330–31; and Shlomo Aronson, ‘‘Preparations for the Nuremberg Trial: The OSS, Charles Dwork, and the Holocaust,’’ Holocaust and Genocide Studies 12, no. 2 (1998): 257–81, 267–70. 155. Salter, Nazi War Crimes, 384–86, 393. 156. Friedmann, review of Trials of War Criminals, 1291; Hula, ‘‘Punishment for War Crimes,’’ 13; and Neumann, ‘‘War Crimes Trials,’’ 137–38. 157. Max Rheinstein, review of The Nuremberg Trial and Aggressive War, by Sheldon Glueck, University of Chicago Law Review 14, no. 2 (1947): 319–21, 320. 158. Ibid., 321. 159. Hula, ‘‘Punishment for War Crimes,’’ 23.

294

Notes to Pages 170–175

160. Leora Bilsky, ‘‘Hannah Arendt’s Judgement of Bureaucracy,’’ in Hannah Arendt and the Law, repr. ed., ed. Marco Goldoni and Christopher McCorkindale (Portland, OR: Hart, 2013), 271. 161. Neumann, ‘‘Problems Concerning the Treatment of War Criminals,’’ 459 and Laudani’s discussion of this document in his introduction, 17–18; and Otto Kirchheimer and John Herz, ‘‘Leadership Principle and Criminal Responsibility,’’ in Laudani, Secret Reports on Nazi Germany, 464–74. See also Brecht, ‘‘Democracy,’’ 205; and Friedmann, review of Trials of War Criminals, 1288–89 and 1291. 162. Neumann, ‘‘Problems Concerning the Treatment of War Criminals,’’ 459–60. 163. Ibid., 459. 164. Arendt, Eichmann in Jerusalem, 294. 165. Neumann, ‘‘War Crimes Trials,’’ 140, italics added. 166. Neumann, ‘‘Problems Concerning the Treatment of War Criminals,’’ 463. 167. Kirchheimer and Herz, ‘‘Leadership Principle,’’ 471. 168. Michael S. Sherry, America in the Shadow of War: The United States Since the 1930s (New Haven: Yale University Press, 1997), 500. 169. Friedrich, Constitutional Government and Democracy, 594. See also Friedrich’s critical though admiring review of Political Reconstruction by Karl Loewenstein, Journal of Modern History 20, no. 3 (1948): 251–52. Friedrich condemned Loewenstein’s insistence that the Germans would have to be forced to be free. 170. George Kateb, The Inner Ocean: Individualism and Democratic Culture (Ithaca, NY: Cornell University Press, 1994), 25. 171. Friedrich, Constitutional Government and Democracy, 589, 596. 172. On this and other uses of law to constrain administrative governance, see Joanna L. Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal (New York: Cambridge University Press, 2012). 173. For a compelling argument on this point, see James T. Sparrow, Warfare State: World War II Americans and the Age of Big Government (New York: Oxford University Press, 2011). Chapter 5. Individual Autonomy and the Modern American State 1. On Cold War antistatist liberalism, see David Ciepley, Liberalism in the Shadow of Totalitarianism (Cambridge, MA: Harvard University Press, 2006). On the postwar obsession with the American psyche, see Desmond King and Marc Stears, ‘‘The Missing State in Postwar American Political Thought,’’ in The Unsustainable American State, ed. Lawrence Jacobs and Desmond King (Oxford: Oxford University Press, 2009), 116–32. For postwar liberal thought generally, see Kevin Mattson, When America Was Great: The Fighting Faith of Liberalism in Post-War America (New York: Routledge, 2004); and Robert Booth Fowler, Believing Skeptics: American Political Intellectuals, 1945–1965 (Westport, CT: Greenwood Press, 1978). Even some of the German e´migre´ critics adopted a more psychosocial orientation toward the deficiencies of the

Notes to Pages 175–176

295

liberal democratic state. See, for example, Franz Neumann, ‘‘The Concept of Political Freedom,’’ Columbia Law Review 53, no. 7 (1953): 901–35. 2. Louis Hartz, The Liberal Tradition in America (New York: Harcourt, Brace & World, 1955); Richard Hofstadter, The Age of Reform (New York: Vintage, 1955); and Lionel Trilling, The Liberal Imagination (New York: Viking, 1951), xv. 3. Trilling, Liberal Imagination, ix. On the rejection by postwar liberals of grand theory and broad criticism, see Richard H. Pells, The Liberal Mind in a Conservative Age: American Intellectuals in the 1940s and 1950s (New York: Harper & Row, 1986), viii–x. 4. ‘‘Statelessness’’ is from King and Stears, ‘‘Missing State,’’ 117. For additional exceptions, see Ira Katznelson, Desolation and Enlightenment: Political Knowledge After Total War, Totalitarianism, and the Holocaust (New York: Columbia University Press, 2003). 5. For a rare text that reads Rawls’s social contract theory as a critique of the administrative state, see Richard B. Stewart, ‘‘The Reformation of Administrative Law,’’ Harvard Law Review 88, no. 8 (1975): 1699–1813. 6. Jeremy Waldron has argued with particular acuity that social contract theory ‘‘expresses . . . a view . . . that the social order must be one that can be justified to the people who have to live under it.’’ See his ‘‘Theoretical Foundations of Liberalism,’’ Philosophical Quarterly 37, no. 147 (1987): 127–50, 140. 7. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) (hereafter TJ), 87. Rawls identified the private financing of political campaigns, the unequal distribution of wealth, and military conscription as in need of reform; in later publications he would add universal health care and better access to education. 8. Rawls was careful not to adopt any political labels; he used ‘‘liberal,’’ to describe his philosophical stance. However, in a draft letter to the moral philosopher Stuart Hampshire in response to the latter’s review of TJ in New York Review of Books, February 24, 1972, Rawls wrote that Hampshire had ‘‘impressed upon me’’ the ‘‘resemblance’’ between his own views and those of certain British Labour Party intellectuals whom Hampshire described as social democrats. But as with the other thinkers I have written about, Rawls’s overall political views are not at issue here. Draft letter to Stuart Hampshire, Papers of John Rawls, 1942–2003 and Undated, Harvard University Archives (hereafter PJR), series III, box 19, folder 5. 9. Philip Pettit, Judging Justice: Introduction to Contemporary Political Philosophy (London: Routledge Kegan Paul, 1980), 148. 10. On the importance of justice for establishing legitimacy in a liberal democracy, see Barry Clark and Herbert Gintis, ‘‘Rawlsian Justice and Economic Systems,’’ Philosophy and Public Affairs 7, no. 4 (1978): 302–25. I use the term ‘‘legitimacy’’ in the same manner as I have throughout this book. This usage differs from Rawls’s understanding of the term, although I believe them to be compatible. Rawls did not explore the concept of legitimacy until his later work, which is generally not covered here. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993) and Rawls, ‘‘Reply to Habermas,’’ Journal of Philosophy 92, no. 3 (1995): 132–80. For

296

Notes to Pages 176–178

Rawls, the test of political legitimacy is whether an institution or policy accords with a constitution that rational citizens could agree upon. But an institution or policy might be legitimate without being just since legitimacy requires a lower threshold of acceptability than the principles of justice. Still, the concept of justification remains the key to legitimacy, as it does in this book. ‘‘On matters of constitutional essentials, basic institutions and public policies should be justifiable to all citizens,’’ Rawls wrote in Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001), 89. For an early reference to justice as a virtue of institutions, see John Rawls, ‘‘Justice as Fairness,’’ Journal of Philosophy 54, no. 22 (1957): 653–62, 653. 11. ‘‘Comments on Stanley Moore,’’ PJR, series III, box 19, folder 4; and Samuel Freeman, Rawls (New York: Routledge, 2007), 12–13. 12. See TJ. Where helpful for the purpose of elucidation, I draw on the book as well. The importance of Rawls’s social contract theory can hardly be overstated. See especially Michael Lessnoff, ‘‘John Rawls’s Theory of Justice,’’ Political Studies 19, no. 1 (1972): 63–80; and Patrick Riley, ‘‘How Coherent Is the Social Contract Tradition?’’ Journal of the History of Ideas 34, no. 4 (1973): 543–62. Rawls was not unique in returning the social contract idea, but he was the first to do so in a comprehensive fashion. For another attempt, see James Buchanan and Gordon Tullock, The Calculus of Consent (Ann Arbor: University of Michigan Press, 1962). 13. ‘‘The divergence with Communism is vital from the standpoint of power, but none are intellectually attracted to it,’’ Rawls wrote in his notes of the early 1960s to explain why the Cold War had not produced an animating intellectual impulse. ‘‘Some Notes on Philosophy,’’ PJR, series IV, box 35, folder 10. 14. Richard A. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999), 190. 15. Samuel Freeman, ed., John Rawls: Collected Papers (Cambridge, MA: Harvard University Press, 1999) (hereafter CP), 63. 16. TJ, 246. 17. CP, 53. 18. ‘‘Annual Message to the Congress, January 6, 1941,’’ in The Public Papers and Addresses of Franklin D. Roosevelt, 1940 Volume, ed. Samuel I. Rosenman (New York: Macmillan, 1941), 663–672, 672. On the speech’s conceptual confusion, see Carl J. Friedrich, The New Belief in the Common Man (Boston: Little, Brown, 1942), 297–98. 19. On southern recalcitrance toward Roosevelt’s domestic agenda, see Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: Norton, 2013). On the Roosevelt administration’s lack of a coherent moral vision for the postwar United States, see Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Harvard University Press, 1998), 496–97. For a comprehensive treatment of Roosevelt’s moral vision, see Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (Cambridge, MA: Harvard University Press, 2005); and Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004).

Notes to Pages 178–181

297

20. Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973). 21. TJ, 11. 22. CP, 98–116; TJ, 490. 23. John Bordley Rawls, ‘‘A Study in the Grounds of Ethical Knowledge: Considered With Reference to Judgments on the Moral Worth of Character’’ (Ph.D. diss., Princeton University, 1950), 329. 24. Ibid., 7. 25. John Rawls, A Brief Inquiry into the Meaning of Sin and Faith, ed. Thomas Nagel (Cambridge, MA: Harvard University Press, 2009), 1. 26. Rawls began to develop this idea as a basis for locating morality as early as his dissertation. It may also be seen in his first published essay, ‘‘Outline of a Decision Procedure for Ethics,’’ Philosophical Review 60, no. 2 (1951): 177–97, reprinted in CP, 1–19. 27. Rawls, ‘‘Study in the Grounds of Ethical Knowledge,’’ 7–8. 28. The 1958 essay ‘‘Justice as Fairness’’ was an expanded version of another essay by the same name published the previous year in the Journal of Philosophy. All references, unless otherwise noted, are to the 1958 version, which is reproduced in CP, 47–72. Robert Paul Wolff, Understanding Rawls (Princeton, NJ: Princeton University Press, 1977), 25. 29. CP, 50. 30. CP, 48. This second part of the second principle is commonly referred to as ‘‘the difference principle.’’ 31. CP, 89. The liberties of equal citizenship included equality of opportunity; freedoms of speech, assembly, and religion; the right own property; and political liberties, such as the rights to vote and hold office and legal rights. TJ, 42–43, 541–48. Only in TJ did Rawls express this idea explicitly, positing a lexical ordering of the two principles that favored equal citizenship rights and liberties over distributional issues, often referred to as social and economic rights. 32. CP, 53. 33. In later work, Rawls would jettison the idea that the contractors had any sort of social identity and would substitute the concept of a ‘‘veil of ignorance’’ in which they were stripped of any knowledge of their position or particular interests in society. 34. TJ, 153; Pettit, Judging Justice, 169. 35. CP, 97. 36. TJ, 223. This description of the ideal legislature resembles that of Theodore J. Lowi in The End of Liberalism (New York: Norton, 1969). Lowi hoped for a Congress that would cease delegating the bulk of its power to the executive branch and return to the art of crafting legislation that would be specific enough to limit administrative discretion and rule making. 37. ‘‘Lecture I—The Nature of Political and Social Philosophy’’ (1960), PJR, series IV, box 35, folder 10. See also John Rawls, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 2007), 392–94.

298

Notes to Pages 181–184

For evidence of utilitarianism’s dominance in American political and legal thought through World War II, see H. L. A. Hart, ‘‘Between Utility and Rights,’’ Columbia Law Review 79, no. 5 (1979): 828–46; and Robert L. Hale, Freedom Through Law (New York: Columbia University Press, 1952). For political science, see David M. Ricci, The Tragedy of Political Science (New Haven: Yale University Press, 1984). 38. CP, 65. 39. CP, 64. 40. In his presidential nomination speech of 1932, Roosevelt stated, ‘‘Ours must be a party of . . . the greatest good to the greatest number of our citizens.’’ The Public Papers and Addresses of Franklin D. Roosevelt, 1, 1928–32 (New York City: Random House, 1938), 647. This is political rhetoric and ought not be taken as evidence of a coherent political worldview; however, it does suggest that utilitarian language stood at the ready. 41. CP, 66. 42. CP, 65. 43. Rawls, ‘‘Study in the Grounds of Ethical Knowledge,’’ 8. 44. For the concept of a ‘‘discretionary state,’’ see Stephen Skowronek, ‘‘Taking Stock,’’ in Jacobs and King, Unsustainable American State, 330. 45. At last count TJ, still very much in print, had been translated into twentynine languages. Freeman, Rawls, 518. A number of scholars, principally philosophers and political theorists, have remarked upon the intellectual force of Rawls’s earlier articles. Lessnoff described Rawls’s oeuvre through the late 1960s as ‘‘one of the few major original contributions of the present generation of prescriptive political philosophy.’’ ‘‘John Rawls’ Theory of Justice,’’ 63. 46. On this postwar moral turn, see, generally, Primus, American Language of Rights, chap. 5. 47. For this and other biographical details about Rawls’s life, see especially Freeman, Rawls; Paul Graham, Rawls (Oxford: Oneworld, 2007), 1–14; Thomas Pogge, ‘‘A Brief Sketch of Rawls’s Life,’’ in Development and Main Outlines of Rawls’s Theory of Justice, ed. Henry Richardson (New York: Garland, 1999), 1–15; and Pogge, John Rawls: His Life and Theory of Justice, trans. Michelle Kosch (New York: Oxford University Press, 2007), 1–27. 48. Freeman, Rawls, 3. 49. John Rawls, ‘‘Fifty Years After Hiroshima,’’ Dissent, Summer 1995, 323–27, reprinted in CP, 565–72, 569. 50. These comments are from a talk that Rawls gave to a group of Harvard students in 1968, ‘‘The Grounds of Conscientious Refusal.’’ His ambivalence stemmed from the way the war was conducted. For Rawls’s notes on this talk, see PJR, series IV, box 34, folder 7. 51. Rawls, ‘‘Study in the Grounds of Ethical Knowledge,’’ 5, 344–45. 52. For the abstraction and formalism of philosophy in the 1950s and 1960s, see Alexander Nehamas, ‘‘Trends in Recent American Philosophy,’’ in American Academic

Notes to Pages 184–187

299

Culture in Transformation, ed. Thomas Bender and Carl E. Schorske (Princeton, NJ: Princeton University Press, 1997), 227–41; and Hilary Putnam, ‘‘A Half-Century of Philosophy,’’ in American Academic Culture in Transformation, ed. Bender and Schorske, 193–226. For an older treatment of this shift in philosophy, see Morton White, Toward Reunion in Philosophy (Cambridge, MA: Harvard University Press, 1956). 53. Nehamas, ‘‘Trends in Recent American Philosophy,’’ 231. See also Peter Laslett, Philosophy, Politics and Society, 1st series (Oxford: Blackwell, 1956); and John G. Gunnell, ‘‘American Political Science, Liberalism, and the Invention of Political Theory,’’ APSR 82, no. 1 (1988): 71–87. 54. For example, Rawls sharply criticized the philosopher Stephen Toulmin for privileging analytic philosophy at the expense of ‘‘traditional moral philosophy.’’ John Rawls, ‘‘The Place of Reason in Ethics,’’ Philosophical Review 60, no. 4 (1951): 572–80, 579. For a later description of Rawls’s views on the limits of analytic philosophy, see ‘‘Seminar I (Re Analytic Philosophy) UCLA 1968,’’ PJR, series III, box 8, folder 15. 55. James Ward Smith, ‘‘Walter Terence Stace 1866–1967,’’ Proceedings and Addresses of the American Philosophical Association 41 (1967–68): 136–38. Stace described his moral theory as ‘‘a kind of utilitarianism.’’ Quoted in John Laird, review of The Concept of Morals (New York: Macmillan, 1937), by Walter T. Stace, Mind 47, no. 186 (1938): 240–47, 242. 56. In his comprehensive study of Rawls, Samuel Freeman notes that Rawls was essentially an autodidact in moral and political philosophy. He cites as evidence that Rawls ‘‘nowhere mentions the influence of his thesis supervisor,’’ a ‘‘Hegel scholar.’’ Freeman, Rawls, 13. But Stace moved away from his early interest in Hegel. Smith, ‘‘Walter Terence Stace,’’ 137. In either case, broad parallels may be discerned between mentor and mentee, and Rawls does cite Stace’s Concept of Morals in his dissertation’s bibliography. In this book, Stace argued that there was an empirically verifiable moral law that governed social interaction. 57. Walter T. Stace, The Destiny of Western Man (1942; repr., 1947; New York: Johnson Reprint Co., 1970), citations refer to the reprint edition. 58. H. W. S., review of The Concept of Morals, by Walter Stace, Journal of Philosophy 34, no. 25 (1937): 696. 59. Only in the 1947 revised edition of Destiny did Stace address Soviet communism directly. He added a new chapter on the Soviet Union in which he argued that communism had not replaced fascism as the new evil, but that on pragmatic grounds, given its ‘‘portentous importance,’’ he felt the need to include a discussion of it. Fascism remained ‘‘the real enemy’’ (xii). 60. Stace, Destiny of Western Man, vi, ix. 61. Rawls, ‘‘Study in the Grounds of Ethical Knowledge,’’ 64, 302, italics added. 62. Richard B. Stewart, ‘‘The Reformation of American Administrative Law,’’ Harvard Law Review 88, no. 8 (1975): 1669–1813, 1684. 63. Rawls makes these points most clearly in Justice as Fairness, esp. 5–12. But they are implicit throughout his work. See also TJ (60 and 490) for Rawls’s concern with arbitrary authority.

300

Notes to Pages 187–189

64. This view of Rawls has been put forward most systematically by a plethora of communitarian theorists. Among the best works are two by Michael Sandel: Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA: Harvard University Press, 1996); and Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982). 65. Laurence Tribe, ‘‘Policy Science or Ideology?’’ Philosophy and Public Affairs 2, no. 1 (1972): 66–110, 66. 66. One must hedge on the date of this document because the lectures Rawls delivered that reference game theory (or, rather, ‘‘the game analogy’’) are marked in the archives as having been delivered while Rawls was at Princeton (specifically in series III, box 8, folder 3, which is titled ‘‘Material, King Street, Princeton, 1949– 1952’’), but in one lecture Rawls references the phrase ‘‘property-owning democracy,’’ a concept he notes in TJ (273) that he took from a book published in 1963. It seems more likely that Rawls heard the phrase earlier. On the fascinating history of the term, traceable to 1923 and of British origins, see Ben Jackson, ‘‘Revisionism Reconsidered: ‘Property-Owning Democracy’ and Egalitarian Strategy in Postwar Britain,’’ Twentieth Century British History 16, no. 4 (2005): 416–40, esp. 419–20; and Amit Ron, ‘‘Visions of Democracy in ‘Property-Owning Democracy’: Skelton to Rawls and Beyond,’’ History of Political Thought 29, no. 1 (2008): 168–97, 170–72. 67. For an excellent history of early game theory, see Robert Leonard, Von Neumann, Morgenstern, and the Creation of Game Theory: From Chess to Social Science, 1900–1960 (New York: Cambridge University Press, 2010). 68. CP, 57. 69. CP, 59. 70. CP, 58–59, 177. 71. In addition to the reference above to Rawls’s description of game theory in ‘‘Justice as Fairness’’ (1958), see also his lectures ‘‘Society as a Game,’’ PJR, series III, box 8, folder 3, and ‘‘Moral Reasoning and Its Problems,’’ series III, box 8, folder 4. In the former Rawls applies a rudimentary game theoretical framework to social cooperation; in the latter, to public reason. 72. ‘‘Society as a Game,’’ 5. 73. Rawls uses these terms throughout these early lectures; they would soon be replaced by liberty and equality. 74. Ibid., 11, italics represent underlining in the original. 75. ‘‘Lecture: On the Function of Government,’’ PJR, series III, box 8, folder 3. Compare this very different statement in TJ where Rawls goes much further in explaining why the rational choice assumptions of economic behavior are not adequate for a theory of constitutional democracy: ‘‘Nothing analogous to the constraints of a competitive market holds for this case. . . . And since no system of constitutional checks and balances succeeds in setting up an invisible hand that can be relied upon to guide the process to a just outcome, a public sense of justice is to some degree necessary’’ (493). It is precisely this connection between moral psychology and rational choice

Notes to Pages 189–194

301

that Rawls makes in the intervening years. Though they both made appearances in his earliest work, time, context, and experience led Rawls to put them together in TJ and in some of the essays that helped to shape his tome. 76. ‘‘Society as a Game,’’ 14. 77. Ibid., 21. 78. Ibid. 79. Rawls mentioned property allocation in a subsequent lecture titled ‘‘On the Function of Government,’’ 9, PJR, series III, box 8, folder 3. 80. Ibid., 9. 81. Ibid., 11. 82. Ibid., 10. 83. Assuming that the rational choice would always benefit the overall welfare is also not necessarily a feature of games. TJ, 267. 84. ‘‘Society as a Game,’’ 26. 85. ‘‘On the Function of Government,’’ 4. 86. Ibid., 6. 87. Ibid., 12. 88. Cf. Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences (New York: Oxford University Press, 2012). 89. ‘‘On the Function of Government,’’ 13. 90. Ibid., 12. 91. TJ, 242–43. 92. ‘‘On the Function of Government,’’ 8. 93. For a brief history of welfare economics, see Daniel Bell, The Social Sciences Since the Second World War (New Brunswick, NJ: Rutgers University Press, 1982), 29–30; and Pettit, Judging Justice, 143–47. For a broader historical treatment of rational choice theory, see S. M. Amadae, Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism (Chicago: University of Chicago Press, 2003). 94. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995). 95. William Poundstone, Prisoner’s Dilemma: John Von Neumann, Game Theory and the Puzzle of the Bomb (New York: Anchor Books, 1992), 47. 96. Ulrich Beck, Anthony Giddens, and Scott Lash, Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order (Stanford, CA: Stanford University Press, 1994), vii. 97. See, for example, Learned Hand’s opinion in Dennis v. U.S., 183 Fed. 2d 201 (1950). Hand reasoned in terms of the ‘‘probability’’ at some future time of subversive activities by members of the American Communist Party, rejecting the court’s ‘‘clear and present danger’’ standard as too lax in the face of the communist peril. This might be contrasted with Rawls’s notion that the danger ought to be ‘‘very clear and very present’’ before the government should act. ‘‘On the Function of Government,’’ 9. On

302

Notes to Pages 195–203

Hand’s ‘‘probability’’ language, see Judith Shklar, Legalism: Law, Morals, and Political Trials (1964; repr., Cambridge, MA: Harvard University Press, 1986), 214. 98. Poundstone, Prisoner’s Dilemma, 41. 99. Ulrich Beck, ‘‘The Reinvention of Politics: Towards a Theory of Reflexive Modernization,’’ in Beck, Giddens, and Lash, Reflexive Modernization, 9. 100. John von Neumann and Oskar Morgenstern, Theory of Games and Economic Behavior (1944; repr., Princeton, NJ: Princeton University Press, 1953), 39, 87. 101. Poundstone, Prisoner’s Dilemma, 40. 102. R. Duncan Luce and Howard Raiffa, Games and Decisions: Introduction and Critical Survey (New York: Wiley, 1957); CP, 56. 103. Luce and Raiffa, Games and Decisions, x. 104. Ibid., 2. 105. CP, 56; TJ, 85, 152. 106. R. B. Braithwaite, The Theory of Games as a Tool for the Moral Philosopher (New York: Cambridge University Press, 1955). 107. Patrick Suppes, review of Theory of Games as a Tool for Moral Philosophers, by R. B. Braithwaite, Journal of Philosophy 55, no. 5 (1958): 212–16, 215. 108. CP, 58. 109. CP, 58. This footnote is replicated in TJ (134–35) with a more precise critique of Braithwaite’s use of game theory. 110. Rawls, ‘‘Study in the Grounds of Ethical Knowledge,’’ 99. 111. CP, x. 112. CP, 94. 113. CP, 58. 114. Social scientists soon elaborated this use of game theory. See especially Buchanan and Tullock, Calculus of Consent. 115. CP, 48. 116. Robert Paul Wolff, ‘‘Reflections on Game Theory and the Nature of Value,’’ Ethics 72, no. 3 (1961): 171–79, 171. 117. CP, 54. 118. CP, 113. 119. CP, 133. 120. Rawls later sought to diminish the importance of the controversial maximin principle for understanding how people would reason about principles of justice, suggesting that he meant it only as an analogy. In 2001 Rawls wrote that ‘‘the reasoning for the difference principle does not rely on [the maximin rule]. The formal resemblance is misleading.’’ Rawls, Justice as Fairness, 95. 121. W. G. Runciman and Amartya K. Sen, ‘‘Games, Justice, and the General Will,’’ Mind 74, no. 296 (1965): 554–62, 559. 122. This is another instance in which the dates attributed to certain lectures are not entirely reliable (as the archive itself is the first to admit). These dates often appear to have been inserted retrospectively as Rawls and others arranged his papers for

Notes to Pages 203–206

303

archiving. For instance, a folder labeled ‘‘Jurisprudence and Natural Law Seminar [ca. 1957]’’ includes a lecture, ‘‘The Concept of Law and Justice,’’ which could not have been written in 1957 because it contains a reference to a book, Carl Friedrich’s The Philosophy of Law in Historical Perspective, that was not published until 1958. Perhaps Rawls received an early copy from Friedrich, his Harvard colleague, but one would think the reference would then be to a ‘‘manuscript.’’ Nevertheless, the references in this lecture are all to books and articles published in the 1950s and earlier, so the dates may be taken as more or less accurate. 123. CP, 118; TJ, 236. 124. Stewart, ‘‘Reformation of Administrative Law,’’ 1673, 1678–79, 1688. 125. ‘‘Jurisprudence and Natural Law Seminar [ca. 1957],’’ PJR series III, box 8, folder 13; TJ, 239. 126. TJ, 229. 127. Interestingly, in his dissertation Rawls’s implied that legal rules, like the principles of justice, were derived in an essentially social contractarian manner. Law is ‘‘the outcome of public discussions as to what rules can be voluntarily consented to as binding upon the government and the citizens.’’ Rawls, ‘‘Study in the Grounds of Ethical Knowledge,’’ 7. At all times, however, Rawls rejected law as solely an artifact of power. 128. For Rawls’s positivism, see, for example, Richard W. Miller, ‘‘Might Still Distorts Right: Perils of the Rule of Law Project,’’ in Getting to the Rule of Law (NOMOS L), ed. James E. Fleming (New York: New York University Press, 2011), 266–67; Richard H. Fallon, Jr., ‘‘ ‘The Rule of Law’ as a Concept in Constitutional Discourse,’’ Columbia Law Review 97, no. 1 (1997): 1–57; and Donald H. J. Hermann, ‘‘The Fallacy of Legal Procedure as Predominant over Substantive Justice,’’ DePaul Law Review 23, no. 4 (1974): 1408–36. 129. ‘‘The Concept of Law and Justice,’’ PJR, series III, box 8, folder 13. 130. Among these readings was an article by Jerome Hall, which drew on examples from 1930s Germany to demonstrate the importance of this precept. See Hall, ‘‘Nulla Poena Sine Lege,’’ Yale Law Journal 47, no. 2 (1937): 165–93. 131. ‘‘The Concept of Law and Justice,’’ PJR, series III, box 8, folder 13; TJ, 235– 39, italics represent underlining in the original. 132. Rawls recognized that constitutional constraints could impede political participation, and thus political liberties, but he considered this a trade-off worth making for the sake of justice. 133. TJ, 239. See also 241, 267–68. 134. I say ‘‘apparently’’ because Rawls never resolved the issue of whether, as Jeremy Waldron has recently written, ‘‘there is a natural overlap between substantive and formal elements’’ of law. See Waldron, ‘‘The Rule of Law and the Importance of Procedure,’’ in Fleming, Getting to the Rule of Law, 4–5. 135. ‘‘The Concept of Law and Justice,’’ PJR, series III, box 8, folder 13, italics represent underlining in the original. Rawls made this point about slavery in TJ as well

304

Notes to Pages 206–209

(59). While the point is logically sound, how the rule of law could exist on Rawls’s terms of impartiality, given the necessary connection between substantive and procedural rights in a grossly inegalitarian system, is hard to fathom. Impartial law would destroy the slave system, given the procedural irregularities upon which it necessarily rested. Elsewhere, in a different context, Rawls admits as much. 136. TJ, 199. 137. ‘‘The Concept of Natural Law & Natural Rights’’ (1960), PJR, series II, box 4, folder 3. 138. Ibid. Rawls determined that the only reason Radbruch had accepted this view of the law was because he was trying to cure his fellow Germans of their habit of obedience by declaring certain laws not to be law at all. Notably, in his dissertation, Rawls criticized Radbruch’s positivism. ‘‘Study in the Grounds of Ethical Knowledge,’’ 4. (Radbruch famously repudiated his more positivistic views.) 139. ‘‘The Concept of Natural Law & Natural Rights’’ (1960), PJR, series II, box 4, folder 3. In TJ, Rawls elided Fuller’s view that ‘‘substantive and formal justice are tied together’’ by noting that its validity could be determined only ‘‘once we understand the content of these principles [of justice] and their basis in reason and human attitudes’’ (60). Insofar as I can discern, he never explicitly returned to this matter. 140. TJ, 120. 141. Rawls developed a four-stage sequence in TJ to explain how the ideally derived principles of justice might fashion a set of institutions in an actually existing society. At each stage, the state builders would possess more knowledge of their society and ultimately of themselves. 142. TJ, 353. 143. TJ, 200–201. 144. ‘‘The Concept of Law and Justice,’’ PJR, series III, box 8, folder 13, italics added. Rawls made a similar, if more abstract, point in TJ, suggesting that ‘‘pervasive’’ departures from the rule of law could raise the question as to ‘‘whether a system of law exists as opposed to a collection of particular orders designed to advance the interests of a dictator or the idea of a benevolent despot’’ (236). On how considerations of law in Nazi Germany helped shaped American postwar legal theory, see Roger Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Philadelphia: University of Pennsylvania Press, 1992), 128–34. 145. ‘‘The Concept of Law and Justice,’’ PJR, series III, box 8, folder 13. 146. Rawls takes up the problem of the toleration of injustice in a cooperative society again in Political Liberalism and especially in ‘‘Reply to Habermas.’’ 147. ‘‘The Concept of Law and Justice,’’ PJR, series III, box 8, folder 13. 148. ‘‘Rule of Law as Principles of Liberal Constitutionalism,’’ PJR, series III, box 8, folder 13. 149. TJ, 385–86. 150. CP, 177. Rawls used the phrase ‘‘natural duty’’ in his essay ‘‘The Justification of Civil Disobedience’’ (1969). Otherwise, in his essays from this period he referred to

Notes to Pages 210–212

305

the ‘‘duty of fair play.’’ In TJ, he reverted to the notion of a ‘‘natural duty’’ to obey just and nearly just institutions. See TJ, 114–15, 354, 362–63, 374–76. Rawls clarifies in the book that the average citizen has a political duty but not necessarily a political obligation to uphold the constitution and laws that flow from it. This is because political officeholders have more power and more responsibility for the political system. 151. CP, 124–25, 181; TJ 354. 152. A typewritten note in Rawls’s archives suggests that he first drafted this essay in June and July 1963, as a revision of a paper he gave in March of that year to the Harvard Philosophy Club. See ‘‘Legal Obligation and the Principle of Fairness,’’ RP, series II, box 24, folder 1. Perhaps not coincidentally, Martin Luther King, Jr.’s ‘‘Letter from Birmingham Jail’’ appeared in large parts in the Sunday New York Post in May 1963 and was published in full on June 12, 1963. Rawls’s intervention on civil disobedience was among the earliest among scholars. ‘‘The Justification of Civil Disobedience’’ forms the basis for chapter 6 in TJ. 153. See, for example, contributions in Charles E. Whittaker and William Sloane Coffin, eds., Law, Order, and Civil Disobedience (Washington, DC: American Enterprise Institute for Public Policy Research, 1967). 154. Arnold Brecht, ‘‘Democracy—Challenge to Theory,’’ Social Research 13, no. 2 (1946): 195–224, 217–19. 155. CP, 180. A more tentative version of this idea appeared in his 1964 essay ‘‘Legal Obligation and the Duty of Fair Play,’’ in which Rawls wrote that ‘‘in a society such as ours’’ there is ‘‘a moral obligation to obey the law’’ but that this duty ‘‘may . . . be overridden in certain cases by other more stringent obligations.’’ CP, 117. 156. CP, 188. 157. CP, 183. 158. Rawls made the connection explicit in TJ, citing Martin Luther King, Jr., as having a ‘‘similar view’’ of civil disobedience in ‘‘Letter from Birmingham City Jail.’’ TJ, 364. 159. Ibid., 390. 160. TJ, 383. 161. Ibid., 372. 162. ‘‘Justice and Conscientious Refusal, Talks to Students of Draft and Resistance, 1968,’’ PJR, series IV, box 34, folder 7; and Pogge, John Rawls, 19. 163. ‘‘Faculty of Arts and Sciences [‘DOCKET’],’’ PJR, series II, box 24, folder 2. 164. Ibid. 165. Ibid. The resolution was tabled, and a similar resolution went down to defeat at a faculty meeting the following year. PJR, series II, box 24, folder 4. Among the signatories relevant to this work were Judith Shklar and Carl Friedrich. 166. ‘‘Remarks on Conscription,’’ PJR, series IV, box 34, folder 13. 167. In TJ, Rawls described conscription as ‘‘a drastic interference with the basic liberties of equal citizenship; it cannot be justified by any needs less compelling than

306

Notes to Pages 212–218

national security itself,’’ which he then equated with ‘‘the defense of liberty.’’ Economic gain or national aggrandizement through imperialistic adventures or geopolitical gain were not just causes of war, for example (380–81). The faculty resolution read as follows: ‘‘Conscription is a drastic interference with the basic liberties of a free society and cannot be justified by any needs less compelling than those of national security.’’ ‘‘Faculty of Arts and Sciences [‘DOCKET’],’’ PJR, series II, box 24, folder 2. For a brief discussion of this episode, see Pogge, John Rawls, 20–21. 168. TJ, 382. See also ‘‘Remarks on Conscription,’’ PJR, series IV, box 34, folder 13. 169. J. J. C. Smart and Bernard Williams, Utilitarianism For and Against (Cambridge: Cambridge University Press, 1973), 4. 170. CP, 53. 171. Rawls told the Harvard Review of Philosophy that at the time he wrote TJ he was most interested in the moral psychology section. Rawls quoted in Freeman, Rawls, 6. 172. CP, 41; and especially ‘‘The Sense of Justice,’’ CP, 99–116. 173. This essay was first published in Philosophical Review 72, no. 3 (July 1963): 281–305. It is reprinted in CP, 96–116. 174. Stanley Bates, ‘‘The Motivation to Be Just,’’ in Philosophy of Rawls: Moral Psychology and Community, ed. Paul J. Weithman (New York: Garland, 1999), 75. 175. CP, 114. 176. The ‘‘overwhelming majority of mankind,’’ as Rawls put it in TJ, 506. 177. Judith N. Shklar, ‘‘Rousseau’s Images of Authority,’’ APSR 48, no. 54 (1964): 919–32, 922. 178. Rawls, Justice as Fairness, 101, note 23. 179. Ibid. 180. Ibid., 101. 181. Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989), 21. 182. Ibid., 22. 183. CP, 6. 184. CP, 5. 185. Ibid. 186. Ibid. 187. Bates, ‘‘Motivation to Be Just,’’ 81. 188. I say ‘‘effectively’’ because on the surface Rawls remains within the context of the Original Position. 189. CP, 96, 106. 190. CP, 100. 191. That an analytically trained philosopher referenced Rousseau at all was no small matter, especially at a time when Rousseau had been resurrected by political

Notes to Pages 218–223

307

scientists as the progenitor of modern totalitarianism. For his indebtedness to Rousseau’s social contract theory, especially Rousseau’s concept of the general will, see CP, 74; and Patrick Neal, ‘‘In the Shadow of the General Will: Rawls, Kant and Rousseau on the Problem of Political Right,’’ Review of Politics 49, no. 3 (1987): 389–409. Compare Bernard Manin, ‘‘On Legitimacy and Political Deliberation,’’ in New French Thought, ed. Mark Lilla (Princeton, NJ: Princeton University Press, 1994). 192. CP, 101. 193. Ibid., 104. 194. Ibid., 105. 195. Jean-Jacques Rousseau, ‘‘On the Social Contract,’’ in The Basic Political Writings, trans. Donald A. Cress (Indianapolis: Hackett, 1987), 163. 196. CP, 100, 110–11, 114; TJ, 490. 197. Samantha Brennan and Robert Noggle, ‘‘Rawls’s Neglected Childhood: Reflections on the Original Position, Stability, and the Child’s Sense of Justice,’’ in The Idea of a Political Liberalism: Essays on Rawls, ed. Victoria Davion and Clark Wolf (Lanham, MD: Rowman & Littlefield, 2000), 46–72. 198. CP, 186. 199. Primus, American Language of Rights, chap. 5. 200. Waldron, ‘‘Theoretical Foundations of Liberalism,’’ 146; and TJ, 493. Epilogue Epigraph: Gerald E. (Jerry) Frug, ‘‘Administrative Democracy: Alternatives to Bureaucratic Forms of Organization,’’ University of Toronto Law Review 40, no. 3 (1990): 559–86, 559. 1. Herbert Kaufman, ‘‘Emerging Conflicts in the Doctrines of Public Administration,’’ APSR 50, no. 4 (1956): 1057–73, 1070, italics in the original. 2. William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge: MIT Press, 1994), 81. 3. For an incisive analysis of the literature on postwar American conservatism, see Kim Phillips-Fein, ‘‘Conservatism: A State of the Field,’’ in ‘‘Conservatism: A Roundtable,’’ Journal of American History 98, no. 3 (2011): 723–43. 4. Stephen Skowronek, ‘‘Taking Stock,’’ in The Unsustainable American State, ed. Lawrence Jacobs and Desmond King (Oxford: Oxford University Press, 2009), 334. 5. Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity, trans. Arthur Goldhammer (Princeton, NJ: Princeton University Press, 2011). For a study that extends this critique of bureaucracy to authoritarian states, see James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998). That Scott finds it necessary in his introduction to disclaim any association with Friedrich Hayek and Milton Friedman is suggestive of the challenges faced by liberal and leftist scholars who criticize the functioning and the purposes of the modern administrative state, in Scott’s case ‘‘modern projects of social engineering’’ (8).

308

Notes to Page 224

6. Examples of these jeremiads include Sheldon S. Wolin, Politics and Vision (London: Allen & Unwin, 1961); C. Wright Mills, The Sociological Imagination (New York: Oxford University Press, 1959); and Mills, The Power Elite (New York: Oxford University Press, 1956). See also David Ciepley, Liberalism in the Shadow of Totalitarianism (Cambridge, MA: Harvard University Press, 2006). 7. Among the renegade voices in the field of public administration was Dwight Waldo, who unleashed a revolt against the uncritical acceptance of bureaucratic governance with his intellectual history of administrative governance: The Administrative State: A Study of the Political Theory of American Public Administration (New York: Ronald Press, 1948). In 1971, Waldo published an even more ornery edited volume titled Public Administration in a Time of Turbulence (Scranton, PA: Chandler, 1971). In 1993, public administration’s house organ featured a debate framed by Kenneth F. Warren’s article ‘‘We Have Debated Ad Nauseam the Legitimacy of the Administrative State—But Why?,’’ Public Administration Review 53, no. 3 (1993): 249–54. Besides revealing how vexed the issue of the administrative state remained among the professionals who depended on its success for their own, Warren’s main point was that the entrenchment of the administrative state proved its legitimacy. Theodore Lowi responded that existence does not imply acceptance. A less scholarly approach to such concerns may be found in some of Ralph Nader’s writings of the 1960s and 1970s. 8. Robert Y. Fluno, ‘‘The Floundering Leviathan: Pluralism in an Age of Ungovernability,’’ Western Political Quarterly 24, no. 3 (1971): 560–66. 9. For a critical appraisal of the bureaucratic state written by a conservative political scientist who expressed many of the same concerns as sympathetic liberal critics, see James Q. Wilson, ‘‘The Rise of the Bureaucratic State,’’ Public Interest 41 (Fall 1975): 77–103. 10. Wolin, Politics and Vision; William Alton Kelso, American Democratic Theory: Pluralism and Its Critics (Westport, CT: Greenwood Press, 1978); Donald Robert Brand, Corporatism and the Rule of Law: A Study of the National Recovery Administration (Ithaca, NY: Cornell University Press, 1988); John G. Gunnell, ‘‘The Genealogy of American Pluralism: From Madison to Behavioralism,’’ International Political Science Review/Revue Internationale de Science Politique 17, no. 3 (1996): 253–65; Reuel E. Schiller, ‘‘Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945–1970,’’ Vanderbilt Law Review 53, no. 5 (2000): 1389– 1451; and John G. Gunnell, Imagining the American Polity: Political Science and the Discourse of Democracy (University Park: Pennsylvania State University Press, 2004). 11. Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), 128–32. Dahl called this pluralistic governing system ‘‘polyarchy.’’ 12. Among the first postwar studies to analyze emergency rule in the United States and to point out its dangers was Robert S. Rankin and Winfried R. Dallmayr, Freedom and Emergency Powers in the Cold War (New York: Appleton-Century-Crofts, 1964). On regulatory agencies, see Herbert Kaufman, ‘‘Administrative Decentralization and

Notes to Pages 225–229

309

Political Power,’’ Public Administration Review 29, no. 1 (1969): 3–15; and Waldo, Public Administration in a Time of Turbulence. 13. Gerald Frug makes this point eloquently in ‘‘Administrative Democracy: Alternatives to Bureaucratic Forms of Organization.’’ 14. Charles A. Reich, The Greening of America (New York: Random House, 1970), 48. 15. Ibid., 53. The quirkiness of Reich’s ideas is contained in his notion of a new ‘‘consciousness,’’ which, he argued, was needed to counter the power of the centralized bureaucracy. The book garnered immense attention, selling more than one million copies and inspiring an edited volume of responses, most of them critical, some of them scathing. See Philip Nobile, ed., The Con III Controversy: The Critics Look at the Greening of America (New York: Pocket Books, 1971). 16. The 1950s saw another effort to reform regulatory government (the Second Hoover Commission) along with several well-publicized cases of corruption involving regulatory commissions. See the Hearings Before the Special Subcommittee on Legislative Oversight, U.S. House of Representatives, 85th Cong., 2nd Sess. (1959); and Joanna L. Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal (New York: Cambridge University Press, 2012), chap. 5. 17. See, for example, Grant McConnell, Private Power and American Democracy (New York: Knopf, 1966); Theodore J. Lowi, The End of Liberalism (New York: Norton, 1969); John H. Schaar, ‘‘Legitimacy in the Modern State,’’ in Power and Community: Dissenting Essays in Political Science, ed. Philip Green and Stanford Levinson (New York: Vintage, 1970), 276–327; Reich, Greening of America; and Mills, Power Elite. 18. Schiller, ‘‘Enlarging the Administrative Polity’’; and Charles A. Reich, ‘‘The Law of the Planned Society,’’ Yale Law Journal 75, no. 8 (1966): 1227–70. 19. Schiller, ‘‘Enlarging the Administrative Polity,’’ 1428. 20. Charles A. Reich, Bureaucracy and the Forests (Santa Barbara, CA: Center for the Study of Democratic Institutions, 1962), 13. See also 2, 10–11. 21. Louis L. Jaffe, ‘‘The Independent Agency—a New Scapegoat,’’ review of Regulating Business by Independent Commission by Marver H. Bernstein, Yale Law Journal 65, no. 7 (1956): 1068–76, 1075. 22. Lowi, End of Liberalism, 298. 23. Ibid., 290. 24. Ibid., 312. 25. This is not to claim that none of these things would have occurred but for the conditions of the 1930s and 1940s, only that the crisis conditions accentuated some of the propensities I have described here and directly caused others. 26. What follows are some examples of this emerging scholarship. For a call for such scholarship, and a cautionary note about recourse to the model of American exceptionalism, see Desmond King and Robert C. Lieberman, ‘‘American State Building: The Theoretical Challenge,’’ in Jacobs and King, Unsustainable American State,

310

Notes to Pages 229–230

305. This collection of essays is itself evidence of the rethinking of the American state to which I refer above. 27. Bruce Ackerman, The Decline and Fall of the American Republic (Cambridge, MA: Harvard University Press, 2010), 3. 28. Ibid., 4, 11. For an argument that the New Deal’s regulatory legacy is being undermined by ‘‘the new presidentialism,’’ see Cynthia R. Farina, ‘‘Undoing the New Deal Through the New Presidentialism,’’ Harvard Journal of Law & Public Policy 22, no. 1 (1998): 227–38. For a conservative argument that favors concentrated executive power, especially in emergencies, see Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2011). The authors state frankly that ‘‘in the administrative state . . . the executive governs’’ (11) and that liberals must reconcile themselves to this fact. 29. Lawrence R. Jacobs and Desmond King, ‘‘The Political Crisis of the American State: The Unsustainable State in a Time of Unraveling,’’ in Jacobs and King, Unsustainable American State, 3. 30. Skowronek, ‘‘Taking Stock,’’ 335. For an older, more explicit analysis of the displacement of lawmaking by policymaking, see Carl Joachim Friedrich, The Philosophy of Law in Historical Perspective (Chicago: University of Chicago Press, 1958), 217– 18, 221.

Index

ACC. See Allied Control Council accountability, 19, 52–89, 263n130 Ackerman, Bruce, 229–30, 247n82 adjudication, administrative, 28, 270n38 administrative law, 32, 42, 56–57, 245n67, 249n107, 262n119, 270n38 Administrative Procedure Act (APA), 44–45, 80–81, 173, 243n50, 262n125 The Administrative Process, 37 administrative state, 1–8, 50, 66–67, 74–76, 83, 84, 90, 104, 146–47, 171, 173, 178, 179, 193–94, 208–9, 221–29, 231n3, 232n5, 233n11, 235n26, 245n66, 247n85, 248n92, 266n9, 271n43, 307n5, 308n9; absolutism, 56, 82; agencies, 26, 44, 47, 66, 68, 79; control, 57; criminal behavior, 171; defined, 9–10; efficiency, 6; elites, 75; experts, 73; form, 239n14; gold standard, 237n3; governance, 15, 44, 230, 254n150, 308n7; growth, 25–29; hegemony, 22–23; ideology, 10, 29–36, 39, 244n56; participation, 226–27; policymaking, 191; power, 79–80; process, 41, 64, 262n121; reform, 20, 79; responsibility in, 79–80, 261n118; roots of, 22–25; science of, 29, 30, 31, 36–40, 50; standard operating procedures, 181. See also justification; legitimacy administrators, 69; local, 257n44; training, 45 advisory bodies, administrative, 70. See also experts African Americans, disenfranchisement, 46, 62, 63, 87, 102, 215, 251n127, 259n73, 276n103 agencies, administrative: 26, 44, 47, 66, 68, 79; capture, 68; judicial review, 262n120 aggressive war, 163, 165 Agricultural Adjustment Act, 57, 59, 60, 61

Allied Control Council (ACC), 137–40, 148, 292n135 American exceptionalism, 12, 309n26 American Farm Bureau Federation, 86–87 American Political Development (APD), 230, 231n4 American Political Science Association, 31, 64 American Political Science Review, 33 American Society of Public Administration, 31 APA. See Administrative Procedure Act apathy, 224 Arendt, Hannah, 115–16, 126–28, 171, 280n169 Arnold, Thurman, 43 Arrow, Kenneth J., 197 Article 48, 289nn104,105, 290n107 Ascoli, Max, 135, 282n18 associations: delegation to, 58–59; voluntary, 87. See also experts Atlantic Conference, 140 Austin, John, 161 authoritarian rule, 95, 111, 123, 131, 151, 159–60 autonomy, 57–58, 75, 224; law and, 204–5. See also responsibility Banfield, Edward, 88 Barnett, Vincent, 80 Basic Law, 287n70, 288n87 Beck, Ulrich, 195 Behavioral Models Project, 196 Behemoth, 117–19, 121, 125, 277nn115,121 Bentham, Jeremy, 181 Bingham, Alfred, 81 Bituminous Coal Conservation Act, 57, 60, 257n30

312

Index

Braithwaite, R. B., 197–200 Brandeis, Louis, 31 Brecht, Arnold, 101–3, 113–14, 133, 134, 137, 155, 206, 272n52 Brownlow, Louis, 46–47 budget, national, 26 Building a New American State, 237n3 Bureau of Public Administration, 31 bureaucracy/bureaucratic governance. See administrative state bureaucrats, 8, 24, 53, 64, 69, 72, 73, 94, 111, 144–47, 213, 285n39 business community, 37, 39–40, 43–44, 49. See also capitalism; corporate world; industry Butler, Nicholas Murray, 22 Caldwell, Peter C., 280n172 capitalism, 38, 112, 114, 120, 121, 123, 276n99. See also business community; corporate world civil disobedience, 208–13, 304n150, 305n18; rule of law ideal and, 211 civil liberties, 174 civil rights movement, 209, 210 civil service, 24, 26, 40, 47; military convergence, 234n12 Clay, Lucius D., 284n27 coercion, 5, 20, 53, 107–8, 115, 131, 132, 142, 145–46, 149, 157, 164, 169, 172, 176, 179, 181, 182, 190–92, 203, 205, 211, 212, 256n23, 261n116, 274n74 Cold War, 15, 172–73, 177, 193, 240n33 collective bargaining, 58–59, 256n25 Columbia Law Review, 35 commitment, 86–87 Commonwealth studies, 237n2 communism, 15, 24, 92–93, 105, 136, 175, 296n13, 299n59 communitarianism, 6, 17 conflict resolution, 41 conflicts of interest, 200–201 Congress, 14, 41–42, 81, 82, 83, 226–27, 249nn104,111, 250n112, 251n128 conscientious objection, 209–13 conscription, 212, 305n167 consent, 52–53, 57–58, 64, 69, 74, 259n75 Constitution, 33–35, 101, 108, 155, 246nn73,74, 247nn78,82, 265n5, 281n13, 303n134, 304n150

constitutional democracy, 6, 99, 102, 173, 176, 210; failure of, 100; German, 100–101; injustices, 212; legal system and, 203; legitimacy, 178; moral psychology and, 213; war and, 89, 92. See also democracy constitutional dictatorship, 149–56, 289n104; goals, 153 Constitutional Government and Democracy, 290n22 constitutionalism, 35–36, 49–50, 100, 288n87, 290n22, 291n125 The Constitution of Liberty, 110, 275n94 consumers, 38, 248n92 contracts, 176; law, 58 cooperation, 74, 195, 219; game theory, 199–200 cooptation, 75, 87, 255n7 coordination, 38, 46, 70 corporate world, 37–38, 47–48, 58, 68, 224. See also business community; capitalism; industry Corwin, Edward S., 250n112, 265n5, 281–82n13 County Land-Use Program, 61–62 court-packing, 35, 47, 104 courts, 43, 82, 97. See also law; legal systems criminal procedure, 119 crisis. See emergency Croly, Herbert, 19–21 cultural traditions, 240n29 Dahl, Robert, 224 debate, anxious, 254n154 decision making, 9, 226–27. See also game theory delegation of power, 10, 12, 22, 42, 58, 60, 203, 221, 240n24, 249–50n11 democracy, 48, 52–54, 85, 108, 114, 143–44; administration, 74–75; administrative state and, 49–50; American, 75–78, 101–2, 113; bureaucracy, 77; conception of, 4, 8, 9; constitutional, Germany, 134, 135; legalism and, 156; liberal, 5, 65, 67, 74; majoritarian, 4; obstacles to, 146; occupation, 135–49; parliamentary, 50; participation, 264n147; preconditions for, 143–44; representative, 68. See also constitutional democracy; constitutionalism democratization, 56–74

Index denazification, 139, 144–45, 286n55 Department of Agriculture, 61 Depression, 25, 37, 39, 148 deregulation, 7 The Destiny of Western Man, 184–85 Dewey, John, 40, 60 Dicey, A. V., 97, 270n38, 274n80 Dickinson, John, 33 dictatorship, 150, 154; rule of law and, 129; war and, 91; war crimes trials, 130–31 Dimock, Marshall, 24, 39 discretion, 1, 5, 9, 12, 15, 16, 20, 44–45, 49, 51, 79, 81, 91, 92, 104, 111, 114, 117, 126, 176, 182, 191, 226, 230, 268n23, 298n44 discretionary power, 105, 230 discrimination, 87 disenfranchisement, 145 diversity, 82; toleration of, 77 Do¨nitz, Karl, 287n67 Douglas, William O., 31 dual state, 119–21 The Dual State, 117–19 Dudziak, Mary L., 241n36, 281n13 due process, 81, 104, 164, 203–5, 207, 226 duty to obey, 202–13 economics: collapse, 7–8, 24–25, 229; decision making, 49, 114; theory, 189 Economy Act, 26–27 efficiency, 20, 24, 38, 66–67, 77, 78, 147, 179, 181–82 egalitarian minimum, 220 Eisenhower, Dwight, 46 Elliott, William Y., 34–35 emergency, 7–8, 12, 13, 24–25, 29, 33, 79, 91, 148–55, 159, 172–73, 250nn112,114, 309n25; invocation of, 94, 133; law, 129; legitimation, 241n36; normalization, 12; politics, 48, 235n22; powers, 101, 109, 155, 160, 174, 192–93, 288n78, 289nn104,105; rule of law and; 4, 98, 308n12 Emergency Price Control Act of 1942, 62–63, 91 employees, federal civilian, 243n45 empowerment, co-optation, 87 Enabling Act of 1933, 92, 102, 155–56, 290n108 equality, 98, 193, 297n31 equal opportunity, 190 equity, principle of, 205–6

313

ethics, 6, 14, 51, 85, 98, 179, 186, 189, 197–99, 206, 215–16; law and, 97–98, 129, 265n2; meta-ethics, 184 execution before trial, 291n130 executive authority, 46, 74, 105 executive legislation, 26 Executive Office, 27–28, 46, 251n128 executive order, 288n76 executive power, 25, 27, 150–51, 154, 160, 224, 254n5, 271n43, 310n28 expert administration, power of, 81 expertise, 1, 10, 16, 22, 36, 40, 45, 55, 72, 73, 179, 186, 247n88, 260n94 experts, 26, 39, 55; rule of, 36–40 Fahy, Charles, 284n28, 285n43 Fair Labor Standards Act 252n138 fairness, 189, 191, 199–200, 202 farm policy, 258n50 fascism, 24, 110; German, 101; law and, 121–22 Federalists, 291n125 flexibility in government, 28, 99, 117, 153, 270n30 Foreign Economic Administration (FEA), 118 Fraenkel, Ernst, 116–28, 137, 142, 157, 159, 277n122, 278nn126,128 Frank, Jerome N., 245n65 Frankfurter, Felix, 104 Franklin, Marshall, 157–59 free play, 189 Friedman, Milton, 307n5 Friedmann, Wolfgang, 137, 169, 290n109 Friedrich, Carl J., 15, 91–92, 110, 137, 149–60, 172–73, 179, 206, 240n33, 251n130, 268n17, 285n38, 289n104, 290n22 Frug, Gerald E., 221, 248n92 Fuchs, Ralph F., 36 Fuller, Lon, 129, 168, 206, 207 games, 196; zero-sum, 195, 197, 200 Games and Decisions, 196–97 game theory, 177, 187–202, 300nn66,71, 302n114; real-world situations, 195–96 general will, 52, 68, 69, 71, 72, 73, 306–7n191 German Occupation Statute, 140 German Problem, 94–95, 99–104, 161

314

Index

Germany, 100; bureaucracy, 24; federal structure, 284n36; occupation, 95, 281n2; refugees, 49, 99–100. See also intellectuals; Nazism; Weimar Republic. Gerth, H. H., 38 Glueck, Sheldon, 162, 165, 167, 291n133 goal, common, 190, 192 Gouldner, Alvin, 85 government: constraining, 14; role, 69, 71; theory of, 50; unelected, 55 Graham, George, 83 grassroots decisions, 85, 86, 88 Graves, W. Brooke, 46 Gross, Leo, 164 guilt: association, 218; principle, 218–19 Gulick, Luther, 46–47 Gutmann, Amy, 264n147 Hague Convention, 141 Hale, Robert, 256n23 Hall, Jerome, 303n130 Hampshire, Stuart, 295n8 Hand, Learned, 301n97 Hart, H. L. A., 129, 168, 207 Hart, James, 34–35, 41 Harvard Law Review, 54–55, 168, 207 Hawley, Ellis, 244n55 Hayek, Friedrich von, 104–15, 117, 128, 154, 272n60, 273nn63,64,65, 274nn74,80, 275nn94,96,97, 276nn99,101,109, 307n5 hegemony, administrative, 4, 5, 10, 15, 22–23, 91, 178, 223, 230 Herring, E. Pendleton, 6, 53, 56, 64–78, 82–83, 89 Herz, John H., 137, 141–42, 171–72 hierarchy, 33, 46, 71, 171 Hobbes, Thomas, 1 Hofstadter, Richard, 243n54 Hoover, Herbert, 48–49 Horwitz, Morton, 245n65 Humphrey’s Executor v. United States, 254n5 ideology: categories, 234n12; and moral claims, 216–17 immigration policy, 56–57 impartiality, 43, 69, 72, 201, 207, 219, 303–4n135 IMT. See International Military Tribunal individuals: autonomy, 8, 9, 109, 175–220; resistance, 170; rule of law and, 106; utilitarianism, 182; war crimes responsibility and punishment, 166–68. See also rights

industry, 37, 40, 59; codes, 255n7; discipline, 46. See also business community; corporate world inequalities, 190, 200; accumulating 189, 190 injustice, 209–10; tolerance of, 208 Institute for Social Research, 117, 118, 122 institutionalism, 123–24 instrumentalist ideology, 10 instrumentality, 21 integration, 76–77 intellectuals, 7; German e´migre´s, 8, 14, 30; rule of law, 91–92 interests/interest groups, 14, 26, 40, 42, 54–60, 65–70, 87, 88; democracy and, 76; incorporation, 60; TVA, 86, 87 International Military Tribunal (IMT), 162–69; trials, 291nn132,138 Interstate Commerce Commission of 1887, 18 interventionist state, 2, 42, 114, 105–6, 192 Iraq, regime change, 283n22 Jackson, Robert, 169, 291n133 Jaffe, Louis J., 14, 56–60, 63–64, 81–82, 226, 255n14, 256n18 judges, 72, 96, 102 judicial oversight, 89, 97; review, 28, 262n128; standards, 58 judiciary, 53–54, 82, 102, 228; German, 102; role, 43 justice, 167, 175–79, 182, 202–13; democracy and, 52, 209; injustice, 208–10; legality and, 127–28, 302n122; principles of, 178, 180, 191, 203, 210, 304n141; procedural, 206, 210; as regularity, 203; sense of, 217; theory of, 206 ‘‘Justice as Fairness,’’ 180, 187–88, 297n28 justification, 5, 11, 13, 23, 29, 32–33, 225, 230 ‘‘The Justification of Civil Disobedience,’’ 210 Kateb, George, 173 Kellogg-Briand Pact of 1928, 163 Kelsen, Hans, 118, 137, 147–49, 161, 165, 167, 277n122, 293n147 King, Desmond, 233n12 King, Martin Luther, Jr., 211, 305nn152,158 Kirchheimer, Otto, 122, 129, 137, 141, 171–72, 235n20, 271n40

Index Kloppenberg, James, 257n40 knowledge, 14, 73–74; governance and, 11 Landis, James, 25, 35, 37, 43, 54–55 Laski, Harold, 123 Lasswell, Harold D., 234n14 law, 40–45, 98, 99, 100, 140, 204–5, 303n127; authority, 95–96; authorization of power, 108; defined, 125; denunciation, 145; elements of, 303n134; ex post facto, 163, 169–70; impartiality, 116; instrumentality, 99; instrument of violence, 190; international, 140, 141, 163, 165–68; invalid, 304n138; justice and, 207, 302n122; Nazi, 93; necessity defense, 170; obeying, 171–72, 209–10, 304n150, 305n155; popular sovereignty and, 99; postwar Germany, 131; public institutions and, 203; role, 103, 128–29; science of administration and, 31–32; status of, 34; supremacy of law vs. supremacy of force, 142; suspension of, 91; unjust, 197, 209, 293n152; U.S. doctrine, 16; void vs. illegal, 293n147 law, natural, 95–98, 103, 128; irrational, 119–20, 123–24; transcendent, 127 lawmaking, 42; authority, 58; policymaking vs, 310n30; responsibilities, 224 lawyers, 80, 89 Leadership Principle, 93 legalism, 97, 246n72, 265n2; Nazis, 277n113 legal positivism, 95–96, 102, 110–11, 124, 206 legal realism, 31–32, 35, 43, 96 legal system, 206–8, 210, 266n9; constitutional democracy, 203; extralegal powers, 174; reform, 82; requirements, 204–6; terror, 93, 267n15; thought, 236n40; validity, 103 legalists: American, 112; German, 103, 108–13; risks, 129 legality: empowerment vs constraint, 111; ensured, 156; justice vs., 127–28; Nazis, 207; principle of, 132 legislation, 40–41; New Deal and wartime, 57 legislative method, 41, 47, 50, 204–5; veto, 42 legislator, 182 legislature, 83, 108, 181, 203, 208, 228, 251n130, 297n36; elected, 55

315

legitimacy, 11–12, 16–18, 57–58, 77, 84, 87, 178, 181, 188, 191, 203, 220–24, 230, 259n75, 295n10; American political regime, 176; deficits, 210; defined, 11; extralegal powers, 174; Nazis, 116; postwar Germany, 135; principles, 207; pure, 235n29; unjust laws, 197; wartime, 90, 91 legitimation, 13; theory, 2, 233n7 Lenin-Hayek thesis, 113–14 Lerner, Max, 7, 52 ‘‘Letter from Birmingham Jail,’’ 211, 305nn152,158 leviathan state, 13–14, 18–51, 224, 229; defined, 1, 2 Lewis, John D., 62 liberalism, 2, 4, 74, 106, 253n141; American, 10, 177; critical, 222; defined, 2; democracy, 5, 65, 67, 74; heterogeneous and complex, 173; statist, 2–6, 16, 49, 229 liberal state, origins, 18 liberty: constrained, 191; equal, 98, 193, 297n31 Lilienthal, David, 87–88 Lippmann, Walter, 20, 21, 27 Llewellyn, Karl, 35 lobbying, 59 Loewenstein, Karl, 100, 119, 137, 140–46, 151–55, 268n23, 282n19, 285n38 London Charter, 169 Lowi, Theodore, 13, 70, 222, 227–28 loyalty oath, 145–46 Luce, R. Duncan, 196–97 MacIver, Robert, 91 majority rule, 9, 52–53, 114, 197, 210; decision making, 203–4; mistakes, 210 management, 36–37 mass society theory, 291n126 maxim, 206; nulla poena, 205 maximin principle, 201–2, 302n120 Mayo, Elton, 40 McCarthyism, 255n14 means and ends, 6, 254n154, 279n147 Merriam, Charles E., 9, 46–47 Merton, Robert, 84, 85 military governance, 167; occupation vs., 142. See also occupation Mill, John Stuart, 181, 252n133 Mills, C. Wright, 38

316

Index

minorities: irreconcilable, 66; rights of, 9; rule, 224 morality, 6, 177, 213–20, 297n26; authority, 169; constitutionalism, 179; democracy, 210; game theory and, 197–99; internal, 206–7; law and, 95–96, 98, 206–7; learning, 217; obligation, 305n155; order, 178; philosophy, 179–80, 184, 185, 299n54; principles, 103, 177, 179, 183; private, 216; psychology, 177, 213–20; public, 210, 216; self, 213–14; sense, 219 Morgenstern, Oskar, 194–95 Morgenthau, Henry, 159, 291n130 Moscow Declaration, 283n21 Mount Weather Agreement of 1938, 61 Myrdal, Gunnar, 251n127 National Industrial Recovery Act (NIRA), 42–43, 54, 59 National Recovery Administration, 249n107 national socialism, rule of law and, 115–29 National Socialist regime, law and, 120–21, 124–25 Nazism, 8, 15, 71, 77, 94–95, 106, 110, 215; communitarianism, 6; democracy and, 100; dual state, 119, 120, 121; jurisprudence, 118–29; leaders, 159; legal system, 115–16; legality, 130–31, 167–69; military aggression, 78; moral challenge, 184; postwar Germany, 134; revolution, constitutionality, 271n44; rise to power, 100–101, 104–15; Reichstag fire, 155; rule of law and, 4; rule of law, 92–93 Neumann, Franz, 98, 101, 111–12, 116–28, 137, 141–47, 155, 168–71, 268n23, 277nn115,121, 278n126 New Deal, 1–3, 12–13, 18, 24–25, 28–29, 39–43, 47–49, 55, 62, 69, 80, 243n54, 244n55, 251n126, 258n50; justification, 23–24; lawyers, 32; liberals, progressives vs., 240n26; opposition, 53–55, 104–5, 225–26, 252n137; regulatory legacy, 310n28; Second, 25 9/11, 229 Nobleman, Eli, 152 Nonet, Philippe, 16–17 Nuremberg: Charter, 162–63; justice at, 161–72; legal doctrine, 161–62, 164; trials, 131, 291nn133, 292n138. See also war crimes trials

Obama, Barack, 230 occupatio bellica vs occupatio pacifica, 140–41 occupation, 134; debate, 136–37; Germany, 131, 132, 135–74; infrastructure, 137–40; legality, 284n37 Occupation Military Government—U.S. (OMGUS), 137–38, 284n27, 285n43 Occupation Statute, 151, 287n70, 288n86 Office of Price Administration (OPA), 62–63, 89, 256n28, 258n50 Office of Strategic Services (OSS), 118; Bureau, 278n124; memorandum, 170; Research and Analysis Branch, 103 Okin, Susan Moller, 216 OMGUS. See Occupation Military Government—U.S. Oren, Ido, 264n150 organizational theory, 36–37, 84–85 Original Position, 199, 214 The Origins of Totalitarianism, 126 OSS. See Office of Strategic Services participation, 57–58, 64, 66, 82, 87 Pennock, J. Roland, 44–45 Pettit, Philip, 176 philosophy in the 1950s, 182–87 Piaget, Jean, 215, 218, 219 pluralism, 40, 66, 76, 83, 253n145, 261n110; political bargaining, 53; political science, 55–56; proto-pluralists, 55 policymaking, 14, 42, 44, 66; lawmaking vs., 310n30 Political Reconstruction, 145 political science, 64, 65; wartime, 94 Political Science Quarterly, 24 political sovereignty, 48, 50 political will, 9, 73, 102, 144, 214, 215, 254n3, 259–60n75 politics, 40–45; administration vs., 252n133; authority, legitimate, 236n33; campaigns, private financing, 295n7; constraint, 99; power, 50; party politics, 40–41; rationality, 10; theory, 50 The Politics of Democracy, 75, 78 popular sovereignty, 5, 9, 146, 155, 160, 291n125; law and, 99 positivism, 127, 147–48, 161, 165, 268n23, 269n24, 280n172; realism vs., 269n26 Potsdam: Agreement, 143; Conference, 284nn32,35; Protocol, 138–39

Index Potter, Pitman, 141 Pound, Roscoe, 56, 104–5, 272n59 Pound Report, 56–57 power: abuses of, 56–57, 102, 191; arbitrary, 111, 114; centralized, 46–48, 190; public, 20; separation of, 33–34, 41; state, 108; unlimited, 159 predictability, 98, 191 presidency: authority of, 34; managerial, 45–48; role, 45–48 Price Control Act, 154 Primus, Richard, 161 principles, 214; difference, 297n30; guilt, 218–19; legitimacy, 207 probability theory, 195–96, 301n97 proceduralism, 173, 177, 202 procedure: constraints, 97; guarantees, 98 professionalism, 45, 55 progressivism, 18–22; New Deal liberals vs., 240n26 proto-pluralists, 55 public administration, 32, 36–38, 46, 47, 58, 74, 82, 86, 252n135, 308n7 Public Administration and the Public Interest, 64 Public Administration Clearinghouse, 31 Public Administration Review, 31, 80 public interest, 39–40, 59, 65–72, 77, 247n89. See also political will public opinion, 22, 249n101 public policy, 68, 186 public welfare, 68 publicity, 81, 173 Radbruch, Gustav, 206, 304n138 race, Nazism and, 124, 127 Raiffa, Howard, 196–97 Rakove, Jack N., 291n125 Randolph, A. Philip, 276n103 rational choice, 177, 187, 194, 202, 300n75 rationales, 12, 13, 30, 33, 36, 172 rationality, 177 Rawls, John, 2, 4, 6, 15–16, 53, 115, 129, 171, 175–220, 223, 224, 227, 229, 299n54; biography, 183–84; theory, 237n42 realism, 245n65, 270n230; positivism vs., 269n26 Rechtsstaat, 131, 156, 274n80 reciprocity, 219

317

reconstruction: Germany, 119, 131, 135–74, 178; U.S. Civil War, 145 recovery, 233n8 redress, 89 reeducation, Germany, 136 reform, 2, 10, 17, 19, 55, 79, 80, 95, 97, 186, 214, 217, 218, 228, 229 regulation, 39, 43 regulatory agencies, boards and commissions, 49, 56, 57; governance, 54, 309n16; independent, 26; legislation, 43 Reich, Charles, 225–56, 309nn14,15 relativism, 185, 206 Reorganization Act of 1939, 27 representation, 55, 59, 62, 68, 69, 74, 82–83; New Deal and, 63; TVA, 86 representative bureaucracy, 14, 82–89; defined, 83–84; system, 41 research, wartime, 103–4 responsibility: 166, 170, 171, 293n145. See also autonomy revolution, artificial, 134 Rheinstein, Max, 169–70, 282n19 Rice, Condoleezza, 283n22 Riesman, David, 9, 263n130 rightness, 218 rights, individual, 16, 43, 78, 173, 178; dignity and, 79; enforcement of, 172; legal order, 41; protecting, 133 risk aversion, 201, 202 The Road to Serfdom, 105–6, 112, 113, 114, 272n60, 273nn63,64, 275n94, 276n100 Rodell, Fred, 246n74 Roosevelt, Franklin D., 25–28, 34, 38–40, 46, 54, 79, 91, 148, 154, 161, 178, 242nn39,43, 251n126, 256n25, 288n76 Roosevelt, Theodore, 19 Rosanvallon, Pierre, 223 Rose, Nikolas, 11 Rosenberg, Norman, 266n9 Rossiter, Clinton, 113, 153–55 Rousseau, Jean-Jacques, 215, 217–18, 306n191 Ruete, Matthias, 98 rule by decree, 109 rule by dictate, 132 rule by fiat, 90, 172 rule making, lawmaking vs., 181 rule of law, 8–9, 14, 51, 176–77, 202–14, 228, 266n11, 270nn38,231, 272n59, 274n74;

318

Index

rule of law (continued ) administrative state and, 207; concept, 97–98; debate, 93–97; defined, 8–9; democracy, 98–99; departure from, 142; formalist, 97–98; national socialism and, 115–29; Nazis and, 92–93, 115, 157, 161; occupation and, 161; postwar Germans and, 157–58; Rechtsstaat tradition and, 131, 156, 274n80; reestablishment, 156–60; restrictions, 41; reversal, 107; Roosevelt and, 28; self-government and, 156; suspension of, 152; threat to, 4; unknown, 163; wartime and, 90–129 rule of law ideal, 14, 92–94, 108, 109, 166, 172, 265n2, 266nn11,16, 276n101; America, 95–104; civil disobedience and, 211; defined, 91–92; departures from, 209; destruction of, 112; under duress, 94; Germany, 132, 135; limits, 212; majority rule, 197; Nuremberg trials and, 170; obstacles, 140–41; separation of powers, 41 rules: of the game, 41, 200; predictability and consistency, 191 Sayre, Wallace, 85–86 Schechter rule, 227, 250n112 Scheuerman, William, 222, 280n172 Schiller, Reuel, 81–82, 89, 226 Schmitt, Carl, 108, 236n33 Schwartz, Bernard, 265n2 scientific validity, 103 self-determination, 57 self-government: Germany, 142–43, 285n38; rule of law and, 156 self-interest, 189, 195, 219 self-legislating, 188 Selznick, Philip, 16–17, 62, 84–88, 256n27 ‘‘The Sense of Justice,’’ 213 Sherry, Michael, 13 Shklar, Judith, 104, 161, 214, 274n74, 277n113, 278n128 Sidgwick, Henry, 181 Skowronek, Stephen, 222–23, 237n3 slavery, 303n135 Smith, Adam, 188–89 Smith, T. J., 113 social conditions, changing, 88–89 social contract, 182, 188; theory, 16–17, 175–77, 181, 200, 215, 295n6, 296n12

Social Democratic Party (SPD), 96, 100, 122 socialism: creeping, 112; welfare state, 109 social justice, 183 Social Research, 113 social science, institutionalist, 231n4 Social Science Research Council, 30–31, 64, 84 social welfare, 197 sociologists, 84–85 soil conservation programs, 87 So¨llner, Alfons, 96 Soviet Union, 240n33, 288n87, 299n59; Germany and, 110. See also communism Sparrow, James, 13 Stace, Walter T., 184–85, 299n59 Stalinism, 71, 77 standardization, 81 standards, 70–72, 124 state: centralized, 13, 19, 22–23; educative, 21–22; ‘‘Geist State,’’ 24; international law, 167–68; interventionist, 2, 42, 105–6, 114, 192; national security state, 3, 172; normative, 119, 120, 124, 125; policy, 230; prerogative, 119; purpose, 74, 84; selflimiting, 99; structure, 48–50; war, 91, 92, 109, 131; welfare, 71, 111, 114, 194, 257n40 statists, 7; liberalism, 2–6, 16; creed, 229; critics, 49; tensions, 3. See also liberalism Stears, Marc, 21, 233n12 Stimson, Henry, 283n23 Sturm, Albert L., 150 Sullivan, Kathleen, 150 superior orders, 170, 171 Supreme Court, 28, 42–43, 55, 248n99; constitutional interpretation, 35; criticism, 54 surrender, unconditional, 138, 141, 148, 162, 164, 287n67 Tawney Amendment, 238n8 taxation, 190–92 Taylor, Frederick Winslow, 37 technical expertise, 16–17 technocratic rationale, 2, 147 Tennessee Valley Authority (TVA), 61, 62, 85–87, 256n27, 263n136; agricultural programs, 86, 87 territory, disposal of, 148 terror: Nazis, 93; purpose, 127–28

Index Theory of Games and Economic Behavior, 194–95 The Theory of Games as a Tool for the Moral Philosopher, 197 A Theory of Justice, 17, 176, 183, 187, 193, 203–12, 216, 237n42 Third Reich: law and legality, 106, 116–17 totalitarianism, 15, 49, 76–79, 109–10, 127–29, 175, 233n12, 255n14, 264n150, 275n96, 306n191; democracy vs., 75, 100; German, 109; law, 127; rule of law, 91, 116; Soviet communism and, 175; thwarting, 98 Toulmin, Stephen, 299n54 Tribe, Laurence, 187 Trilling, Lionel, 175 trust, 201; in government, 65; untrustworthiness, 201 Tugwell, Rexford G., 31, 87–88 TVA. See Tennessee Valley Authority TVA and the Grass Roots, 84 uncertainty, 189 unintended consequences, 85, 112–13 The Unsustainable American State, 230 untrustworthiness, 201 utilitarianism, 181–82, 194; game theory and, 187, 196, 200; person, conception of, 213 veil of ignorance, 201, 297n33 Vietnam War, 212; objection to, 209 violence, 192 voluntarism, 58

319

von Hindenburg, Paul, 155 von Neumann, John, 194–95 voting public, 55 Waldo, Dwight, 86, 244n56, 247n85, 308n7 Wallace, Henry A., 61, 87, 264n149 war, 7–8, 12; administration, 89; consequences vs means, 261n116; crimes, 162–63; criminals, punishing, 168 war crimes trials, 130, 132, 291n135, 292nn,137,141; legitimacy, 168. See also Nuremberg trials Warren, Kenneth F., 308n7 Weber, Max, 30, 36, 55, 121, 233n7, 236n33, 245n66 Weimar Republic, 95–96, 102, 109–11, 147; collapse, 100, 215, 268n23; Constitution, 101, 109, 289n104; emergency powers, 155; legal system, 92–93, 106, 158–59; statist, 109 Weyl, Walter, 20 White, Leonard D., 31 Wiebe, Robert H., 264n149 Wilson, Woodrow, 20, 46, 233n11 Wolin, Sheldon, 8, 48, 234n19 World War I, 18–20, 109 World War II, 14, 15, 25, 29, 74, 89, 287n70 Wright, Quincy, 285n42 Wyzanski, Charles E., Jr., 163, 165–66, 292nn136,140 Young, Iris Marion, 264n147 zero-sum games, 195, 197, 200 Zink, Harold, 282n19

This page intentionally left blank

Acknowledgments

It takes a village to produce a book, and numerous institutions and individuals have supported this work. A Samuel I. Golieb Fellowship at New York University Law School helped me to navigate the fascinating but complex world of legal history. I am particularly grateful to William E. Nelson, the Golieb colloquium’s co-convener, for his continued interest in my career and for providing a second intellectual home for me in New York. Princeton University, where I taught as a lecturer, and my current institution, the City College of New York, through a PSC-CUNY grant, have funded research for this book. The German Historical Institute offered me a postdoctoral grant in the late stages of this project, which, unfortunately, I had to decline. This project also benefitted from my participation, at the invitation of the late Tony Judt, in the Remarque Institute’s seminar in Kandersteg, Switzerland, on the history of modern liberal thought. Conversations with Judt, Pierre Rosanvallon, and the many other bright lights who attended this weeklong conversation enabled me to place American liberalism in a broader intellectual and transnational context. As this is a work of intellectual history, I did not rely heavily on archival research. However, I spent considerable time at the Harvard University Archives’ Pusey Library looking through John Rawls’s papers. The librarians there were patient and helpful as I made my way through the extensive collection. Additional research was conducted by the incomparable Heather Gates, a master’s student at the time. I also thank Morgan Hess and Emilie Gruchow for their research and editorial assistance, respectively. In addition to institutional support, many people have helped to shape this project. Eric Foner, my longtime mentor at Columbia University, was an inspiration from the moment I met him as a college student. His intelligence, pedagogical skills, and dedication to his students were responsible

322

Acknowledgments

for turning this political science major into a historian. In graduate school, he set the highest of standards, both by his own example and by pushing me to think harder, write better, and argue more clearly. He continues to do so. It is not possible for me to thank him adequately. If Eric Foner drew me into the world of history, Ira Katznelson, a historian and a political scientist, kept me from becoming an apostate in my former discipline. The workshop at Columbia that he and Alan Brinkley ran—and still run—generated high-level, lively discussions at the intersection of history and political science. This book would have taken a very different form without the benefit of those interchanges. Brinkley and Katznelson were also incisive and inimitable intellectual guides when I was at Columbia and beyond, while Jean Cohen was vital in keeping me in line theoretically. Finally, I am beholden to Jeremy Waldron for helping me wade through the Rawlsian thicket. A wonderful group of graduate students at Columbia created a richer intellectual environment than I imagined possible. The conversations we had then remain vital to my outlook as a historian today. Jeremy Varon, whom I met when he gave a guest lecture at Columbia, became an invaluable interlocutor and an incisive reader of an early version of this book. At Princeton, where I had my first job out of graduate school, Daniel Rodgers and Hendrik Hartog also generously commented on an early iteration of this work. Along with their models of rigorous scholarship, their comments proved endlessly thought-provoking and instrumental to making this a smarter book. Anson Rabinbach, through written comments and many delightful conversations, helped me with the German dimension of my book, and more. This work would be much the poorer were it not for discussions with and commentary from an amazing cast of historians, political scientists, and law professors whom I have come to know as colleagues, friends, or both. They include Andrew Arato, David Armitage, Brian Balogh, Tom Bender, Roger Berkowitz, Elizabeth Borgwardt, Margot Canaday, Jim Downs, Mary Dudziak, Daniel Ernst, Barry Friedman, Anthony Grafton, David Greenberg, Joanna Grisinger, Jan Gross, Rob Howse, Sarah Igo, Andreas Kalyvas, George Kateb, Stan Katz, Desmond King, Sophia Lee, Sam Moyn, Sarah Phillips, Edward Purcell, Jennifer Ratner-Rosenhagen, Jeremiah Riemer, Reuel Schiller, Fred Siegel, Jeff Sklansky, Jonathan Soffer, Ruti Teitel, Nadia Urbinati, Barbara Welke, Sean Wilentz, and all of the

Acknowledgments

323

Willard Hurst fellows with whom I was fortunate enough to spend two intensive weeks at Madison. Numerous people read parts of the manuscript, but I owe a special debt to those who worked their way through the entire thing: my colleague at City College Darren Staloff and my fellow intellectual and legal historian Elizabeth Borgwardt. I remain in awe of their attention to detail and their intellectual acuity. My debt to Darren Staloff is especially great and will likely take a lifetime to repay given the time and energy he spent on the manuscript, reading all of it twice and some of it thrice. Also in this group belong the anonymous reviewers for the University of Pennsylvania Press and Peter Agree, Penn Press’s editor-in-chief and this book’s editor, whom I met long ago and whose intelligence and experience kept me standing during many a weak-kneed moment. At City College, Andreas Killen and Clifford Rosenberg read much of the manuscript and urged me down the final stretch. Beth Baron, Lale Can, Craig Daigle, Greg Downs, Emily Greble, Danian Hu, Jennifer Onyedum, Adrienne Petty, and Judith Stein provided crucial commentary on several chapters. I thank as well my colleagues Harriet Alonso, Richard Bernstein, Susan Besse, John Gillooly, Barbara Naddeo, Barbara Syrrakos, and Matt Vaz for their encouragement. In the political science department I have come to know Lynda Dodd and Daniel DiSalvo, who share my interest in historicizing American political and legal institutions and are consistently illuminating conversationalists. In the latter stages of the project, I leaned on a group of brilliant women for intellectual, editorial, and emotional sustenance. These women also happen to be my friends. They include Katherine Boo, Cynthia Cotts, Jennifer Dworkin, Tamara Holt, Leila Kawar, Jessica Klein, Wendy Paris, Alissa Quart, Melorra Sochet, Suzanne Sonnefeld, Maia Szalavitz, Mariela Vargova, and Michele Wucker. I thank, finally, my aunt and uncle, Ruth and Leonard Zubrensky, my biggest cheerleaders and my surrogate parents. This book is dedicated to my actual parents, Ruth Rosner Kornhauser and William Kornhauser. I wish they could see it, for it would not exist without them. Intrepid intellectuals, respected scholars, and unfailing advocates of me and my work, they instilled in me before I could even walk, it seems, a love of ideas, a zeal for learning, and a determination to get things right. I hope these qualities are reflected in these pages.