James Madison and the Crisis of the New Order
Richard Samuelson, Law Liberty
In his history of the New Deal, Arthur Schlesinger Jr. called the events that precipitated the election of Franklin Roosevelt and the creation of the New Deal “The Crisis of the Old Order.” Building on the ideas of the earlier Progressive Movement, (FDR ‘s “Commonwealth Club Address” outlining the agenda for his presidency is officially a “Campaign Address On Progressive Government”), Roosevelt led a realignment, and helped to create a new political order under our Constitution. The reelection of Donald Trump signals that we are experiencing the Crisis of Roosevelt’s New Order.
The New Deal marked a turning point in the way our federal government operated. It was, to use Jefferson’s phrase, “a little revolution” in our constitutional order. The Constitution makes the legislature Article I for a reason. From the perspective of the Founding, the essential power of government is legislating, writing the laws under which we all live after we the people, collectively, via our representatives, have discussed and debated what our laws shall be. Given our diversity, we can only be well-represented in such a body. An elected president cannot reflect the diversity of opinions and ways of life in the American republic.
Presidents have always had disproportionate influence in our system. What changed in the last century is that their role in lawmaking has expanded exponentially, or perhaps I should say that lawmaking in the executive branch has expanded exponentially. Nowadays, the vast majority of the legal code under which we live has not been approved by Congress. Obamacare, for example, is roughly 1,000 pages of legislation, followed by many, many more pages of legal code made in the executive branch. A central part of our crisis is that fewer and fewer Americans subscribe to the myths that are necessary to justify that practice.
What Madison Knew
To understand our crisis, it helps to go back to the founding, and then consider how the progressives responded to James Madison’s emphasis on the diffusion of power in our system. Across history, republics tended not to succeed. They also tended to be small regimes, covering not all that much territory. The res-publica was a regime with a thick common culture. Madison found that a large republic, covering an extensive territory, would tend to minimize the danger of majority tyranny by making it less likely that there would be a national majority bent on tyranny or self-dealing. As he put it in Federalist #10, “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.” Hence, he concluded, “in the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.”
There’s a second element that we often forget in Madison’s thinking. Such an extended republic would be a federal republic. Recall that for Madison, “a reliance on the people” is the primary check on bad government. By contrast, checks and balances inside the system were, to him, merely “auxiliary precautions.” Popular control was consistent with the federal aspect of the system. In Federalist #51, he noted that we have “a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.” Classically, republics were small, and they governed life intimately. By contrast, the extended republic governed with a much lighter hand. Such a republic did not assume all Americans would share a common way of life in the robust way that is often the case in small communities. Recall that Madison is the author of the Virginia Resolutions of 1798, protesting overreach by the federal government. In other words, Madison believed that our system only works when the legislative powers of Congress are “few and defined,” as he put it in Federalist #45.
The implication of these elements of Madison’s thought for our situation comes through quite clearly in his “Report of 1800,” his summary report on the political fights of the 1790s. Should federal power increase in a significant way, “one consequence must be, to enlarge the sphere of discretion allotted to the executive magistrate.” Note the echo of his famous language in Federalist #10 in the phrase “enlarge the sphere of executive discretion.” That would, Madison believed, entail the substitution of monarchy for republican government:
This disproportionate increase of prerogative and patronage must, evidently, either enable the chief magistrate of the union, by quiet means, to secure his re-election from time to time, and finally, to regulate the succession as he might please; or, by giving so transcendent an importance to the office, would render the elections to it so violent and corrupt, that the public voice itself might call for an hereditary, in place of an elective succession.
In other words, Madison feared that if we become a national republic rather than a federal or compound republic, the consequence would point toward rule by executive discretion, the antithesis of republican government. The essence of republican government is the active participation of free and equal citizens in managing our own affairs, both as private citizens, and through participation in and management of our government. Across the country, we take on that role primarily through participation in the legislative process at all levels of government via elections.
The Progressive Alternative
The Progressives posited that there was an option unknown to Madison. Thanks to modern social science (the social science PhD was created in the nineteenth century, and brought to the United States largely from Germany after the Civil War), there seemed to be another way to do things. We the people, via our legislature, can remain important, but the real work of writing and enforcing our legal code will be done apolitically, by disinterested, impartial, neutral experts, with tenured civil service jobs.
Experts, not self-interested, amateurish politicians, would decide what health and safety rules to impose, how workers should relate to each other, and how they relate to management, how many guns, or tanks, or ships we need, or how many colleges to have, how to manage federal lands, what the school curriculum should be, how our healthcare system should operate, what departments they ought to have, etc. etc. That would take matters away from the corrupt and corrupting rough and tumble of democratic politics. It would instead be given to apolitical experts who just want to serve the common good. They would have tenured jobs in the government so that they can be free from political control and bias as they go about their job. And, per the Progressives, their job was not political.
Assuming the federal government is too big for the original Madison scheme to manage, we must find new ways to republicanize big government.
The democratic branches would set general goals, and the neutral, scientifically trained experts would merely be filling in the details of policy, details that were nothing by common sense, backed by science. As Woodrow Wilson put it, “Administration lies outside the proper sphere of politics. Administrative questions are not political questions.” And because the work of the administrative state was not political, in the progressives’ view at least, our technocrats would not truly be answerable to the president, for if they were, then one would have precisely the problem that Madison outlined. When the social science PhD was new, as it was in Wilson’s day, this did not seem outlandish to lots of people, and thus was created the administrative state, squaring the circle of democracy and administration by experts.
From the start, some feared that we were constructing an arbitrary government. In the late 1920s, Charles Warren, one of our greatest legal historians, worried about this turn. Warren had worked in the Wilson administration; he was no reactionary standing athwart History. In a 1927 essay he published in the Massachusetts Law Quarterly:
If the bureaucrats are truly disinterested and apolitical and not prone to the kinds of temptations that usually beset men in power, then there is little to worry about when unelected people write our legal code and when the same department enforces that very code. On that “if,” the entire problem turns. And today, outside of people with a strong interest in the old myth of a neutral technocratic class, few believe our civil service is politically neutral or that such a thing is even a practical possibility in many areas of our expanding government. Some of the cognitive dissonance we see in discourse on the center-left is from the effort both to embrace the critique of the myth of neutral expertise, and yet retain the status of technocracy. Recall that “woke” originally meant that one had been awakened to the bias inhering in facially neutral institutions and laws.
The Trump coalition might, in fact, demonstrate that the supposedly “neutral” beliefs of the technocrats are, in fact, the very ones we are fighting about in our democratic politics. Their self-image is probably one of the reasons why the tensions are running so high just now. It is also worth noting that the fewer things technocrats do, the more likely it is that they can stay in areas where their work seems relatively neutral politically. As the scope of government has increased, civil service is more likely to venture into highly contested areas of our public life, and, hence, into areas in which all decisions are recognized as political, even if the bureaucrats are extremely reluctant to recognize that reality. And that is our problem today.
Our Crisis
If we no longer take seriously the proposition that our upper-level bureaucrats can be neutral, apolitical experts because they, in fact, have to make political judgments on a regular basis, then the administrative state is in a crisis of legitimacy. And that is what the re-election of Donald Trump represents. The American people don’t elect him in 2016 and again in 2024 if they believe that our institutions have been behaving in a reasonable and apolitical way.
Progressives react with horror at the possibility of a president truly in charge of today’s massive executive branch. Can one really blame them? One need not be a Progressive ideologue or a member of the technocracy with a strong self-interest in the matter to see why the prospect of a president, even an elected one, with all that power at his discretion is legitimately terrifying. Does anyone really want to give a president all that power? The Founders did expect the president to be in charge of the executive branch, but they did not expect the executive branch to have the kind of power it does today. Yet, is it reasonable to expect that we can reduce that power significantly?
And who else should be in charge once we recognize that there is no such thing as apolitical law writing and policy making? In the Obama era, progressives mocked the citizen who said, “Get your government hands off my Medicare.” Today we see the equivalent on the other side—get the elected president’s hands off my democratic administrative state. How can the president be violating separation of powers when he asserts control over his own branch? How can it be undemocratic for the person we elected to be the person in charge of the bureaucracy? Nowadays, many Americans seem to have concluded that the only thing worse than giving one man, even one we elect, so much power in so many areas of our lives might be to have that power in a class of unelected bureaucrats who cannot be fired, and who are accountable only to themselves. Elon Musk’s Department of Government Efficiency project seems to be exposing how the bureaucratic class has gamed the system to help entrench its policy preferences.
One of the policies that triggered the colonists in the years leading up to the American Revolution was the British government’s talk of creating a “civil list,” the eighteenth-century version of elite civil service, in the colonies. From the perspective of the king and the aristocrats and gentlemen who governed Britain, the colonies were much too democratic, with the colonial legislatures, among other local institutions, exercising too much power. They were using their power to push around the royal governors. Moreover, the American colonies were, from the perspective of London, lacking in gentlemen who were worthy of political power. Hence came the desire to foster a larger governing class, paid by the King, to help rule the colonies. The colonists, forced to think about it, decided that they liked self-rule. Perhaps our old DNA is kicking in, and we are in the process of rejecting rule by the modern version of the civil list. Our elite bureaucracy is involved in way too many areas of public policy to accept the pretense that they are acting as neutral technicians. That being the case, we the people ought to have a much larger role.
But assuming the federal government is too big for the Madison scheme to manage, we must find new ways to republicanize big government. The progressive politicians who designed the administrative state did not do this then because they subscribed to the myth of scientific expertise; now, though, we recognize that the administrative state is engaged in political, not scientific work.
Reconciling technocracy with republican government is perhaps the greatest challenge faced by our republic. But in order to meet that challenge we must first recognize what it is and introduce what John Adams called “the checks and balances of republican governments” into the administrative state. Is there a way to reconcile checks and balances with technocracy? That is, I suspect, the $64 trillion dollar question. It will not be easy, but we likely have no good alternative if we wish to preserve the republic as a republic for another 250 years. Fasten your seatbelts, it’s going to be a bumpy ride.
