Origins of Progressivism

This chapter describes German state theory in the nineteenth and twentieth century. It describes this tradition in order to clarify the relevance of German ideas to the American context. American political scientists and legal scholars frequently rely on German thinkers such as Max Weber and Carl Schmitt to understand the state. But these divergent assessments lack a grounding in the longer trajectory and the institutional dilemmas of German legal theory. The chapter provides that broader context and directs readers’ attention to the most promising strand of German thought: the philosophy of G.W.F. Hegel. Hegel would have formative significance for the Progressive thinkers who developed the American administrative state. Hegel understood the state’s purpose to be the advancement of freedom. The chapter contextualizes this idea and shows its influence throughout the nineteenth century, in the Rechtsstaat theories of Robert von Mohl, Lorenz von Stein, and Rudolf von Gneist. It then shows how this normative concept of the state was emptied out with the turn to legal positivism at the end of the century. Weber’s formal-rational conception of bureaucracy then arrived at a particularly unstable moment in German constitutional history, in the transition from monarchy to democracy. Weber’s bifurcated conception of legal and charismatic authority paved the way for Schmitt’s proto-totalitarian theory of the state. The chapter concludes by showing how German theorists in the second half of the twentieth century, such as Jürgen Habermas, continued to rely on Weber’s instrumental conception of bureaucracy.

Conclusion

This conclusion explains how the Progressive theory offers a critical perspective on our present political moment and the political ideologies that underlie it. Using examples from the Obama and Trump administrations on topics such as fair housing, climate change and immigration, I show how cost-benefit analysis and presidentialist theories of administration undermine deliberative democratic values. Cost-benefit analysis tends to restrict the administrative state to the task of simulating a perfectly competitive marketplace. Progressivism insists that the state should more broadly further public freedom, providing the goods, services, and institutions that allow democratic self-government to function. Presidential administration equates democracy with plebsicitary legitimacy, and aligns with Carl Schmitt’s illiberal, authoritarian political theory. While Progressivism acknowledges that the president has an important role to play in supervising administration, it aims to anchor administrative legitimacy in broader, plural, and discursive interactions between the government and its citizens.

The Institutional Architecture of Progressive Democracy

This chapter describes examples of Progressive administration from the New Deal and the Second Reconstruction. This account explores the tension between public deliberation in the administrative process and efficient delivery of the services that make democracy possible. During the New Deal, the Tennessee Valley Authority and the Agricultural Adjustment Administration engaged in highly deliberative forms of land use planning. But these deliberative procedures tended to exclude low-income and minority farmers. The Farm Security Administration, by contrast, provided desperately needed goods and services to poor farmers, but did not generally engage them in administrative policymaking. As the New Deal drew to a close, the Progressive emphasis on participatory modes of administration were codified in a thin form in the Administrative Procedure Act. At the same time, the social impacts of the New Deal agricultural agencies created some of the conditions for the Second Reconstruction. During the Second Reconstruction, civil rights agencies attempted to combine public participation and efficient bureaucracy in new institutional forms. The Department of Health, Education, and Welfare developed broad understandings of the social background for segregation that enabled courts to integrate schools in the South. The Equal Employment Opportunity Commission deliberated with civil rights groups and the courts to develop the disparate impact theory of discrimination. The Office of Economic Opportunity instituted radical forms of public participation in implementing the “maximum feasible participation” requirement of the Economic Opportunity Act.

The Normative Architecture of Progressive Democracy

This chapter develops a normative model of Progressive democracy on the basis of the intellectual and institutional history presented in the previous chapters. The Progressive theory remedies deficiencies in existing arguments for administrative legitimacy—those based on efficiency, constitutional values, or republican political theory. Unlike these theories, Progressivism draws an intrinsic connection between the purpose and the structure of regulatory law. Its purpose is to promote individual freedom through law. The structure of regulatory law ensures that such norms arise from the people’s own self-understandings. Progressivism aligns with deliberative democratic theory, but focuses on ex post deliberation about the consequences of policies, rather than solely on ex ante justification. This democratic theory requires an iterative process where abstract norms are expressed in law and then specified in a participatory and rational administrative process. The United States has a thin version of such a process in the Administrative Procedure Act’s “notice-and-comment” rule-making provisions. But today this process is too technocratic and distorted in favor of well organized and powerful interests. Opportunities for inclusive and egalitarian participation must therefore be deepened. At the same time, administrators must understand that they have an official duty to further the equal freedom of the persons their decisions affect. Judicial review of administrative action impedes such a self-understanding because it focuses on technocratic and instrumental reasoning. At the same time, the increasing investment of power in the president threatens to undermine deliberation with arbitrary assertions of personal will.

The Hegelian Progressives

This chapter describes the legal and political theory of the American Progressive thinkers who were influenced by Hegel, and situates their thought within the broader Progressive movement. W.E.B. Du Bois, Woodrow Wilson, John Dewey, Mary Follett, and Frank Goodnow were each influenced by Hegel and Hegelian public law scholars. Read as a group, they offer a coherent understanding of democracy in the American administrative state. Du Bois argued that the state needed to create the conditions for democracy by protecting the rights and promoting the welfare of African Americans. Wilson argued that public opinion should influence administration, and that administration could become a source of binding law. The conflict between Du Bois and Wilson over questions of racial equality teases out a tension between democratic equality and public participation, which is explored further in chapter 3. Dewey understood the state as an articulation of rational public discourse, and insisted like Wilson on public participation in the administrative process. Follett buttressed Dewey’s democratic theory with an account of how participation in administrative policymaking could generate cooperative democratic power. Goodnow adapted the German concept of the Rechtsstaat to the American context. He explained how administrative agencies could carry legislative will into action through fair procedures, and how courts and administrative agencies could play a coordinate role in the implementation of law. Together these theorists offer a model of administration in which democracy-preserving goods and institutions are furnished by administrative bodies through participatory, egalitarian, and inclusive administrative processes.

Introduction

This chapter introduces the basic problem and thesis of the book. The problem is that modern democracy requires administration by unelected officials and bodies, but such administration often appears undemocratic. The thesis is that the administrative state should be structured to empower the public sphere. This thesis grows out of the American Progressives’ democratization of Hegelian political philosophy. Their view is particularly important in our historical moment, when the Trump administration has attempted the “deconstruction the administrative state.” The Introduction situates the Progressive theory in relation to major critiques of bureaucracy from Tocqueville, Arendt, and Foucault. It describes the book’s method of “reconstructive” political theory, where normative commitments develop out of a critical analysis of intellectual and institutional history. It then describes how the book ties in with recent work on administrative law and democratic legitimacy from scholars such as Karen Orren and Stephen Skowronek, Jon Michaels, Adrian Vermeule, and K. Sabeel Rahman.