For those who hold the Constitution of
the United States in high regard and who are concerned about the
fate of its principles in our contemporary practice of government,
the modern state ought to receive significant attention. The reason
for this is that the ideas that gave rise to what is today called
"the administrative state" are fundamentally at odds with those
that gave rise to our Constitution. In fact, the original
Progressive-Era architects of the administrative state understood
this quite clearly, as they made advocacy of this new approach to
government an important part of their direct, open, comprehensive
attack on the American Constitution.
As a practical matter, the modern state
comes out of Franklin Roosevelt's New Deal, which launched a large
bureaucracy and empowered it with broad governing authority. Also,
as a practical matter, the agencies comprising the bureaucracy
reside within the executive branch of our national government, but
their powers transcend the traditional boundaries of executive
power to include both legislative and judicial functions, and these
powers are often exercised in a manner that is largely independent
of presidential control and altogether independent of political
But while the actual growth of the
administrative state can be traced, for the most part, to the New
Deal (and subsequent outgrowths of the New Deal like the Great
Society), the New Deal merely served as the occasion for
implementing the ideas of America's Progressives, who had come a
generation earlier. It is the origins of the modern state--and the
constitutional implications of that change--upon which we will
focus our attention.
The consequences of adopting
Progressive ideas as a foundation for a major piece of our
contemporary government are profound, especially when one considers
the impact of these ideas on the bedrock principles of our
Constitution. It is best to begin with an illustration. Consider
the plight of the C. T. Chenery Corporation in the early 1940s.
In 1935, Congress had enacted the
Public Utility Holding Act, which required that public utility
holding companies reorganize their corporate structures and that
the recently created Securities and Exchange Commission (SEC)
oversee and approve the reorganization plans. The law did not name
any specific standard that the SEC was to use in evaluating the
plans, and the SEC itself did not set any particular rule to govern
Thus, when the Federal Water Service
Corporation was to be reorganized, its management group--the C. T.
Chenery Corporation--had no way of knowing what it had to do in
order to maintain its controlling interest in the company. When it
became clear that the SEC would allow preferred stockholders to
convert their shares of the old company into shares of the newly
reorganized company, the Chenery Corporation went out and bought
itself a large block of preferred stock on the open market. The
reorganization plan approved by the SEC did, as expected, allow
preferred stockholders to convert their shares; but the SEC
explicitly excluded Chenery from making such a conversion, thus
depriving Chenery of its ownership.
The reason for the SEC's exclusion of
the Chenery Corporation was that the agency decided that it was
impermissible for a management company to purchase stock during a
reorganization. This was not a prohibition that was part of any
law, rule, or regulation when the Chenery Corporation made the
purchase. Nor was it a prohibition that applied to any company
other than Chenery. Nor was it a prohibition that the SEC ever
employed again in the future. It was, instead, a standard that the
SEC invented on the spot and applied retroactively to this one
When the Chenery Corporation brought
suit in federal court, protesting the obvious violation of the rule
of law, the SEC countered that the courts should defer to the
expertise of the agency and allow the agency to exercise its
judgment on a case-by-case basis. The Supreme Court, in 1943, did
not find such an argument compelling, reasoning that, "before
transactions otherwise legal can be outlawed or denied their usual
business consequences, they must fall under the ban of some
standards of conduct prescribed by an agency of government"--that
the SEC must, in other words, act according to the rule of law.
But four years later, the SEC found the
Court friendlier to its ad hoc decision making. Having kept
the Chenery case in litigation during this time, the SEC persuaded
the Court to change its mind, and in 1947, the Court concluded that
any "rigid" requirement that agencies always act according to
pre-established rules "would make the administrative process
inflexible and incapable of dealing with many of the specialized
problems which arise." To insist that agencies follow pre-existing
rules in making their decision would be, the new Court claimed, "to
exalt form over necessity." The rule of law, in other words, would have
to take a back seat to the social expediency provided by expert
The Founding, the Progressive Era, and the Rule of
Government vs. the Rule of Law
The Chenery case is now commonly cited
in administrative law courses as an example of the vast discretion
granted to bureaucratic agencies when Congress delegates to them
its legislative power. The case also serves as a good illustration
of the kind of injustice the American Founders sought to avoid by
instituting a Constitution structured around the separation of
powers and grounded in the rule of law. The contrast here helps us
see the principled differences between Progressive and Founding-era
notions of what constitutes good government.
The Founders understood that there are
two fundamental ways in which government can exercise its
authority. The first is a system of arbitrary rule, where the
government decides how to act on an ad hoc basis, leaving
decisions up to the whim of whatever official or officials happen
to be in charge; the second way is to implement a system grounded
in the rule of law, where legal rules are made in advance and
published, binding both government and citizens and allowing the
latter to know exactly what they have to do or not to do in order
to avoid the coercive authority of the former.
As Thomas G. West has explained, the
Founders implemented a rule-of-law system partly out of reaction to
schemes like those favored by Massachusetts Governor John Winthrop
in the early years of Puritanism in the United States. Winthrop
believed that governmental decision making ought to depend upon the
goodness of the government official. Under such a plan, West
where the prudence of the magistrate
decides each case, no one could know for sure whether what he did
would be permitted or forbidden, or what the penalty would be.
Nothing except the good will of the magistrate keeps the government
from acting according to whimsy or dictatorial willfulness.
In the Chenery case, the company had no
way of knowing what to do or not to do in order to maintain its
ownership and was forced to rely on whatever ad hoc decision
the administrators in the SEC felt like making. Against such a
scenario, the advantages of the Founders' rule-of-law system are
First, the rule of law
facilitates government by the consent of the governed. Since rules
are made in advance and apply to a broad array of cases that may
arise in the future, the people have the opportunity to consent by
way of the deliberation and votes of their elected representatives.
In a situation where ad hoc decision making is used, a
decision is made only once a particular case arises, thus providing
no opportunity for the citizens to grant their consent.
Second, as West explains, the
rule of law makes it much more difficult "for government to play
favorites, to benefit its personal friends and harm its personal
enemies." It is thus the best means of maintaining a government
dedicated to the equal protection of its citizens' rights, which is
the aim of all legitimate government, according to the American
Declaration of Independence.
Securing the Rule of Law:
The Separation of Powers
In order to secure individual rights in
a system based upon the rule of law, the Founders implemented a
constitutional design centered on the separation of powers. Under
the separation-of-powers system, the legitimate authority of
government would be exercised by three co-equal departments, each
making sure that the others remained within the confines of their
proper constitutional places. The fundamental aim of the
separation of powers, which the American Founders developed from
John Locke's Second Treatise of Government and, even more
directly, from Montesquieu's Spirit of the Laws, was to
safeguard rights against the possibility of arbitrary government.
Indeed, James Madison in Federalist 47, echoing Thomas
Jefferson, redefined "tyranny" to mean the absence in government of
the separation of powers.
It is from this fundamental aim of
separation of powers that we can discern three important tenets of
American constitutionalism, although this is by no means an
The first is the principle of
non-delegation. If the separation of powers means anything at all,
it means that one branch of government may not permit its powers to
be exercised substantially by another branch.
The second tenet is a corollary of
the first: There may be no combination of functions or powers
within a single branch. As Madison, quoting Jefferson in the
passage from Federalist
47 mentioned above, elaborates: "The
accumulation of all powers legislative, executive and judiciary in
the same hands...may justly be pronounced the very definition of
Under this second tenet of the separation
of powers--a tenet vital to maintaining the rule of law--those
making the law would also have to be subject to its being enforced
upon them by an independent authority. Those involved in execution
could not make up the law as they went along, but would instead
have to enforce laws that had been previously established by a
separate authority; and those on whom the law was enforced could
have their cases judged by an authority entirely separate from that
which had brought prosecution.
The third tenet of the separation of
powers is the responsibility of administration to the republican
executive. The government remains "wholly popular," in the words of
because those who carry out the law
(administrators, under the traditional meaning of the term) are
directly answerable to the President, who is elected. The
Constitution grants all of "the executive power" to the President
and requires him to "take care that the laws be faithfully
Administration--as vigorous as some of
the Founders surely envisioned it--was thereby placed wholly within
a single branch of government, and a clear line of political
accountability for administrators was established so that their
exercise of power would take place only within the confines of the
Progressives' Rejection of the Separation of Powers
For the American pioneers of the
administrative state--the Progressives of the late 19th and early
20th centuries--this older, limited understanding of government
stood in the way of the policy aims they believed the state ought
to pursue in a world that had undergone significant evolution since
the time of the Founding. They believed that the role of
government, contrary to the perceived ahistorical notion of
Founding-era liberalism, ought to adjust continually to meet the
new demands of new ages. As Woodrow Wilson wrote in The
State, "Government does now whatever experience permits or
the times demand."
A carefully limited government may have
been appropriate for the Founding era, when the primary concern was
throwing off central government tyranny, but in order for
government to handle the demands placed upon it by modern times,
the Founding-era restrictions on its powers and organization would
have to be eased and the scope of government expanded. This is why
John Dewey criticized the Founders for believing that their notions
about limited government transcended their own age; they "lacked,"
he explained, "historic sense and interest." At the most
fundamental level, therefore, the separation of powers was a deadly
obstacle to the new liberalism, since it was an institutional
system intended to keep the national government directed toward the
relatively limited ends enumerated in the Constitution and the
Declaration of Independence.
Beyond this fundamental difference on
the very purpose of government, the three tenets of the separation
of powers mentioned above posed a particular problem for the
Progressives' vision of national administration at the outset of
the 20th century. The range of activities they wanted the
government to regulate was far too broad for Congress to handle
under the original vision of legislative power.
Instead, to varying degrees, the
fathers of progressive liberalism envisioned a delegation of
rulemaking, or regulatory, power from congressional lawmakers to an
enlarged national administrative apparatus, which would be much
more capable of managing the intricacies of a modern, complex
economy because of its expertise and its ability to specialize. And
because of the complexities involved with regulating a modern
economy, it would be much more efficient for a single agency, with
its expertise, to be made responsible within its area of competence
for setting specific policies, investigating violations of those
policies, and adjudicating disputes.
The fulfillment of progressive
liberalism's administrative vision, therefore, required the
evisceration of the non-delegation doctrine and the adoption of
combination of functions as an operating principle for
administrative agencies. Furthermore, the Progressives believed
that administrative agencies would never be up to the mission they
had in mind if those agencies remained subservient to national
political institutions. Since modern regulation was to be based
upon expertise--which was, its advocates argued, objective and
politically neutral--administrators should be freed from political
influence. Thus, the constitutional placement of administration
within the executive and under the control of the President was a
problem as the Progressives looked to insulate administrators not
only from the chief executive, but from politics altogether.
It is the Progressives' desire to free
bureaucratic agencies from the confines of politics and the law
that allows us to trace the origins of the administrative state to
their political thought. The idea of separating politics and
administration--of grounding a significant portion of government
not on the basis of popular consent but on expertise--was a
fundamental aim of American Progressivism and explains the
Progressives' fierce assault on the Founders' separation-of-powers
constitutionalism. It was introduced into the United States by
Progressive reformers who had themselves learned the principle from
what was then the "cutting edge" theory of history and the state
developed in 19th century Germany.
In this regard, no one was more
important to the origins of the administrative state in America
than Woodrow Wilson and Frank Goodnow. Wilson served as the 26th
President of the United States and was a leading academic advocate
of Progressive ideas long before his entry into politics. Much of
his contribution to Progressive thought came in his work from the
1880s, when he was in the early stages of a prolific academic
career that would see him in posts at Bryn Mawr College, Wesleyan
University, and Princeton (of which he became president) prior to
his entry into political life in 1910. Goodnow was the founding
president of the American Political Science Association and a
pioneer in the new field of administrative law who started to make
his own contributions to the Progressive movement in the last
decade of the 19th century.
Civil Service Reform: The Separation of Politics and
The idea of shielding administration,
at least to some degree, from political influence had been around
in the United States for some time--at least since the reaction
against the 19th century spoils system, in which many jobs in the
federal bureaucracy were doled out on the basis of one's
affiliation with the party currently in power as opposed to one's
actual merit or skill.
The establishment of the Civil Service
Commission through the Pendleton Act of 1883 marked a significant
victory for opponents of the spoils system, but it took the
Progressives, starting with Wilson and Goodnow, to take this rather
narrow inclination against the influence of politics in
administration and make it part of a thoughtful, comprehensive
critique of American constitutionalism and part of a broader
argument for political reform. While the opponents of the spoils
system certainly wanted to shield administration from political
cronyism, they did not offer a new theory of administration. The
Progressives, by contrast, were concerned less with eradicating the
evils of political cronyism than with creating a realm of neutral
administrative discretion shielded from political influence.
Wilson introduced the concept of
separating politics and administration--of treating administrative
governance as an object of study entirely separate from
politics--in a series of essays in the latter part of the 1880s.
Goodnow expanded upon this Wilsonian concept in the 1890s and
eventually published a book in 1900 titled Politics and
The fundamental assumption behind the
vast discretion that Progressives wanted to give to administration
was a trust in or optimism about the selflessness, competence, and
objectivity of administrators, and thus a belief that the
separation-of-powers checks on government were no longer necessary
or just. If the Framers of the Constitution had instituted the
separation of powers out of fear of "the abuses of
government"--fear that the permanent self-interestedness of human
nature could make government "administered by men over men" a
threat to the natural rights of citizens--then the advocates of
administrative discretion concluded that such fears, even if
well-founded in the early days of the republic, no longer applied
in the modern era. Thus, administration could be freed from the
shackles placed upon it by the separation of powers in order to
take on the new tasks that Progressives had in mind for the
national state. This key assumption behind the separation of
politics and administration is exemplified in Wilson's political
The strong Progressive belief in the
enlightenment and disinterestedness of administrators stands as an
instructive contrast to the permanent self-interestedness that the
Framers of the U.S. Constitution saw in human nature.
Just as this sobriety about the potential for tyranny led the
Framers to circumscribe carefully the authority of the national
government, the Progressives' passionate optimism fueled their call
for maximum discretion for administrators.
This is not to suggest that the Framers
denied discretionary power to the national government; no reader of
Federalist 23--or many other papers of The
Federalist, for that matter--could draw such a conclusion.
Rather, they understood that such discretion had to be channeled
through the forms and law of the Constitution in order to be safe
for liberty. Thus, as Alexander Hamilton explained in
Federalist 23 and elsewhere, the vigorous discretion that
the national government must have is made safe by the "most
vigilant and careful attention of the people." For the people to
exercise this kind of vigilance, the officers who exercise
discretion must do so in a system of clear electoral accountability
and within the confines of the rule of law.
It is precisely this kind of
accountability to the realm of politics from which the
Progressives, by contrast, wanted to free administrators. For the
Progressives, there was something special about civil servants that
somehow raised them above the ordinary self-interestedness of human
nature. Such confidence came from a faith that the progressive
power of history had elevated public servants to a level of
objectivity. They would, supposedly, be able to disregard their own
private or particular inclinations in order to dedicate themselves
to the objective good. Because of this disinterestedness,
restraints on their discretion were unnecessary.
Wilson subscribed thoroughly to this
doctrine of historical progress, which he had learned from reading
German state theorists like G. W. F. Hegel and Johann Bluntschli
and from his own teachers like Richard T. Ely, who had received his
education at German universities. Wilson came to believe that
history had solved the problem of faction--that human nature was no
longer a danger in democratic government. He wrote frequently of a
"steady and unmistakable growth of nationality of sentiment," of a
growing unity and objectivity in the American mind, and concluded
that the power of the national government could be unfettered
because one faction or part of the country was no longer a threat
to the rights of another.
Administration and the "Living Constitution"
With the threat of faction having
receded as a result of historical progress, Wilson argued, a new
understanding of the ends and scope of government was in order.
This new understanding required an evolutionary understanding of
the Constitution--one in which the ends and scope of government are
determined by looking not to the pre-established law of the
Constitution, but instead to the new demands placed upon government
by contemporary historical circumstances.
In his New Freedom campaign for
President in 1912, for instance, Wilson urged that the rigid,
mechanical, "Newtonian" constitutionalism of the old liberalism be
replaced by a "Darwinian" perspective, adjusting the Constitution
as an organic entity to fit the ever-changing environment. Wilson
also blamed separation-of-powers theory for what he believed to be
the inflexibility of national government and its inability to
handle the tasks required of it in the modern age:
The trouble with the theory is that
government is not a machine, but a living thing. It falls, not
under the theory of the universe, but under the theory of organic
life. It is accountable to Darwin, not to Newton. It is modified by
its environment, necessitated by its tasks, shaped to its functions
by the sheer pressure of life. No living thing can have its organs
offset against each other, as checks, and live.
Wilson saw the separation of powers as
a hindrance because efficiency was to be valued over anything else.
As he claimed in 1885, efficiency had become the pre-eminent
principle in government because history had brought us to an age
where the administrative functions of government were most
important: "The period of constitution-making is passed now. We
have reached a new territory in which we need new guides, the vast
territory of administration."
Wilson's work on empowering
administration with significant discretion to regulate national
progress seems to have taken off immediately following his graduate
education at Johns Hopkins University. It was at Hopkins where
Wilson imbibed deeply in the administrative writings of German
authors who belonged to the Hegelian tradition, especially
Bluntschli, and where he learned from teachers like Ely, who had
studied under Bluntschli at Heidelberg.
Wilson's first sustained work on
administration came right at this time in an unpublished essay
written in November 1885, titled "The Art of Governing." This work
led to the writing, the following year, of Wilson's seminal essay,
"The Study of Administration," where the case for separating
politics and administration and for freeing administration from the
confines of constitutional law is made explicitly for the first
time in the United States. Wilson subsequently elaborated on this
case in notes he prepared for an annual lectureship at Johns
Hopkins from 1888 to 1897.
But even prior to entering graduate
school, Wilson's views on administration had been taking shape, as
evidenced by his 1882 essay "Government By Debate." It was in this
essay that Wilson first suggested freeing administration from
political influence because large parts of national administration
were, he contended, apolitical and based on expertise.
Administrative departments, Wilson wrote then, "should be organized
in strict accordance with recognized business principles. The
greater part of their affairs is altogether outside of politics."
Wilson's thesis in his works on
administration was that it was far better and more efficient for a
professional class of experts, instead of a multiplicity of
politicians with narrow, competing interests, to handle the complex
business of the modern state. To the objection that entrusting
administrators with such discretion might not comport with the
Constitution's distribution of power, Wilson responded that
administrative principles and constitutional principles were
distinct and, thus, that constitutional limitations could not
easily be applied to the exercise of administrative authority. The
constitutional principle of checks and balances, for example,
interfered with efficiency and should not be applied to the
exercise of administrative power: "Give us administrative
elasticity and discretion," he urged; "free us from the idea that
checks and balances are to be carried down through all stages of
Relying heavily on European models of
administrative power, Wilson laid out a vision for administrative
discretion in 1891 that directly rejected the rule-of-law
The functions of government are in a
very real sense independent of legislation, and even constitutions,
because [they are] as old as government and inherent in its very
nature. The bulk and complex minuteness of our positive law, which
covers almost every case that can arise in Administration, obscures
for us the fact that Administration cannot wait upon
legislation, but must be given leave, or take it, to proceed
without specific warrant in giving effect to the characteristic
life of the State.
Wilson well understood that this wide
latitude for administrative action undermined the separation of
powers, which he attacked and contrasted with what he called the
"actual division of powers," where there are many "legislative and
judicial acts of the administration."
Importing the European State
Wilson's argument for freeing
administrators from close political control was grounded in the
characteristic Progressive confidence in the expertness and
objectivity of the administrative class. For years, Wilson had been
urging special education for future administrators at elite
universities. He argued that "an intelligent nation cannot be led
or ruled save by thoroughly trained and completely-educated men.
Only comprehensive information and entire mastery of principles and
details can qualify for command." Wilson had faith in the power of
expertise, of "special knowledge, and its importance to those who
would lead." He later referred to "the patriotism" and
"the disinterested ambition" of the new administrative class.
Wilson is thus a critical figure for
the Progressive vision of administration, because he is largely
responsible for applying Hegelian optimism about the objectivity of
administrators to the American system. Wilson assumed, just as
Hegel had in the Philosophy of Right, that a secure position
in the bureaucracy, with tenure and good pay, would relieve the
civil servant of his natural self-interestedness, thereby freeing
him of his particularity and allowing him to focus solely on the
objective good of society.
Wilson's model for this conception of
administrators, he freely acknowledged, was almost entirely foreign
to American constitutionalism. Yet it was his own notion of the
distinction between politics and administration, Wilson argued,
that cleared the way for importing what was essentially a Prussian
model of administration into the United States. Precisely because
administration was to be insulated from politics and from the
Constitution, an administrative system that had come from a
monarchy could be brought to America without harming America's
republican political institutions. As Wilson memorably put it in
"The Study of Administration":
It is the distinction, already drawn,
between administration and politics which makes the comparative
method so safe in the field of administration. When we study the
administrative systems of France and Germany, knowing that we are
not in search of political principles, we need not care a
peppercorn for the constitutional or political reasons which
Frenchmen or Germans give for their practices when explaining them
to us. If I see a murderous fellow sharpening a knife cleverly, I
can borrow his way of sharpening the knife without borrowing his
probable intention to commit murder with it; and so, if I see a
monarchist dyed in the wool managing a public bureau well, I can
learn his business methods without changing one of my republican
Or, as Wilson asked elsewhere in the
"Study," "Why should we not use such parts of foreign contrivances
as we want, if they be in any way serviceable? We are in no danger
of using them in a foreign way. We borrowed rice, but we do not eat
it with chopsticks." And so Wilson knew that his vision for
administration was a novelty in America. In fact, when he later
taught administration in the 1890s, he said that there was only one
author other than himself who understood administration as a
separate discipline: Frank Goodnow.
When Wilson made this observation about
Goodnow, he was referring to Goodnow's Comparative
Administrative Law, published in 1893. That book certainly put
Goodnow on the map, although his real contributions to the modern
understanding of administration's place in the political order came
primarily with the publication of Politics and
Administration in 1900. Two other works--Social Reform and
the Constitution (1911) and The American Conception of
Liberty and Government (1916)--later helped to clarify
Goodnow's Progressive agenda, especially for the courts, and to
fill out his views on the fundamental purposes of civil government.
Goodnow produced almost all of this work while a professor at
Columbia University, where he had been brought by his mentor, John
Burgess, to teach political science and law and where he became the
first to teach administrative law in the United States. Prior to
teaching at Columbia, Goodnow had spent a year studying in France
and Germany; he would go on to finish his career at Johns Hopkins,
where he served as president until his retirement in 1929.
Although a student of Burgess, Goodnow
was much more radical than Burgess in his Progressivism. Goodnow
looked for ways that American national government could be modified
to accommodate Progressive policy aims; this goal could best be
accomplished, Goodnow believed, by freeing administration to manage
the broad scope of affairs that Progressives believed needed
Like Wilson, Goodnow argued that
government needed to adjust its very purpose and organization to
accommodate modern necessities; and, like Wilson, he
believed that history had made obsolete the Founders' dedication to
protecting individual rights and their consequent design of a
carefully limited form of national government. In Social Reform
and the Constitution, Goodnow complained about the "reverence"
for constitutional law, which he regarded as "superstitious" and an
obstacle to genuine political and administrative reform.
In Politics and Administration,
Goodnow made clear that his push for administrative reform was not
simply or even primarily aimed at correcting the corruption of the
spoils system. Rather, administrative reform was, for Goodnow,
instrumental to the end of achieving Progressive, big-government
liberalism. Progressives had in mind a wide array of new activities
in which they wanted national-government involvement; such
involvement could not be achieved with the old system of placing
administration under political direction:
Before we can hope that administrative
officers can occupy a position reasonably permanent in character
and reasonably free from political influence, we must recognize the
existence of an administrative function whose discharge must be
uninfluenced by political considerations. This England and Germany,
and France though to a much less degree, have done. To this fact in
large part is due the excellence of their administrative systems.
Under such conditions the government may safely be intrusted with
much work which, until the people of the United States attain to
the same conception, cannot be intrusted to their governmental
Understanding administrative reform
this way--as a means to securing the broader aims of Progressive
liberalism--is what makes the work of Goodnow, and Wilson too, so
much more significant to the development of modern American thought
and politics than had been the case with the civil-service
Goodnow's Rejection of the Founding
Goodnow and his fellow Progressives
envisioned an almost entirely new purpose for the national
government. Government itself, therefore, had to be viewed through
an historical lens. The principles of the original Constitution,
Goodnow reasoned, may have been appropriate for the Founding era,
but now, "under present conditions[,] they are working harm rather
than good." The error that the Founders made was not
in constructing government as they did, but rather in thinking that
their particular construction and manner of conceiving politics
would transcend their own age and would be appropriate for future
ages as well. They did not realize the historical contingency of
The modern situation, Goodnow argued,
called for less focus on constitutional principle and law and much
greater focus on empowering and perfecting administration. He even
repeated, using almost the same words, Wilson's proclamation from
1885 that the nation had to move from constitutional to
administrative questions. "The great problems of modern public law
are almost exclusively administrative in character," wrote Goodnow.
"While the age that has passed was one of constitutional, the
present age is one of administrative reform." In order to
address the administrative questions that history was pressing upon
the nation, Goodnow urged a focus not on the "formal" governing
system (i.e., the rule of law under the Constitution), but on the
"real" governing system, which becomes whatever is demanded by the
necessities of the time.
The focus of the Founders'
constitutionalism on government's permanent duty to protect
individual rights was an impediment to the marked expansion of
governmental power that Progressives desired; thus, the ideas that
animated the Founders' conception of government had to be
Goodnow understood the political theory
of the Founding quite well. He knew that the notion that
government's primary duty was to protect rights came from the
theory of social compact--a theory which held that men are
naturally endowed with rights prior to the formation of government
and therefore consent to create government only insofar as it will
protect their natural rights. The Founders' system of government,
Goodnow acknowledged, "was permeated by the theories of social
compact and natural right." He condemned these theories as "worse
than useless," since they "retard development"--in other words,
their focus on individual liberty prevents the expansion of
government. The separation-of-powers limits on government, Goodnow
realized, came from the Founding-era concern for individual
liberty: "It was the fear of political tyranny through which
liberty might be lost which led to the adoption of the theories of
checks and balances and of the separation of powers."
Goodnow's critique of the Founders'
political theory came from the perspective of historical
contingency. Their understanding of rights and the role of
government, he argued, was based upon pure "speculation," and "had
no historical justification." Here Goodnow employed the
same critique as his fellow Hegelian Wilson, who had written in
1889 that the idea of social compact had "no historical
foundation." Instead of an understanding of rights
grounded in nature, where the individual possesses them prior to
the formation of government, Goodnow urged an understanding of
rights that are granted by government itself. He remarked favorably
upon European trends in understanding rights as contingent upon
The rights which [an individual]
possesses are, it is believed, conferred upon him, not by his
Creator, but rather by the society to which he belongs. What they
are is to be determined by the legislative authority in view of the
needs of that society. Social expediency, rather than natural
right, is thus to determine the sphere of individual freedom of
Goodnow found it necessary to critique
the theory of natural rights because he knew it was the foundation
for the requirement of government based upon consent and the rule
of law. The principle of government by the consent of the governed
was a problem for Goodnow and those who shared his vision of
administrative power. Goodnow's vision required significant
deference to expertise. The empowering of administrators, as he saw
it, was justified not because the administrators had the consent of
the people, but because they were experts in their fields.
This is why Goodnow wanted to improve
administration not by making it more accountable to pre-existing
rules made by the consent of the governed, but by making it less
so. He observed and conceded that the doctrines of "sovereignty of
the people and of popular participation in the operations of
government" were an integral part of American political culture,
and he therefore acknowledged that this aspect of the culture would
be a difficult hurdle for his vision of administration to overcome.
"Our governmental organization developed," he explained, "at a time
when expert service could not be obtained, when the expert as we
now understand him did not exist."
Bureaucratic Rule over
Since administrative experts were now
available, Goodnow urged that they be employed and empowered with
significant discretion to manage the new tasks that Progressives
had in mind for the national government. He was well aware that
insulating administration from the control of politics and law ran
up against the traditional, constitutional role for administration,
where administrators are subservient to the chief executive and
their duty is confined to carrying out established laws. He
explained that his conception of administration was novel,
considering as it did the sphere of administration to lie outside
the sphere of constitutional law; indeed, this new conception is
exactly what Wilson had given Goodnow credit for in 1894.
Emphasizing the distinction between the constitutional and
administrative spheres, Goodnow remarked that the student of
government "is too apt to confine himself to constitutional
questions, perhaps not considering at all the administrative
It is for this reason of considering
administration as an object of study outside of the Constitution
that Goodnow's landmark book on administrative law--Comparative
Administrative Law--relies almost entirely upon an account of
foreign administrative systems. He knew, as Wilson did,
that such a concept was a novelty in the American political
tradition. Modern administrative law, therefore, would take it for
granted that the political branches of government had to cede
significant discretion to administrative agencies; the new body of
law would be dedicated to establishing a framework for governing
the extent and organization of this discretion.
In making his case for freeing
administration from political influence, Goodnow did not speak of a
strict or rigid separation between politics and administration;
indeed, he noted that the boundary between the two is difficult to
define and that there would inevitably be overlap. But this overlap
seems to be in one direction only, in a manner that enlarges the
orbit of administration; that is, Goodnow seemed to contemplate
instances where administrative organs will exercise political
functions but apparently did not contemplate instances of political
organs engaging in administrative activity. He characterized the
function of politics as "expressing" the will of the state, while
the function of administration is to "execute" the will of the
state; but he made clear that the overlap between politics and
administration would come in the form of administrative agencies
taking a share in "expressing" and well as "executing" state
No political organization, based on the
general theory of a differentiation of governmental functions, has
ever been established which assigns the functions of expressing the
will of the state exclusively to any one of the organs for which it
makes provision. Thus, the organ of government whose main function
is the execution of the will of the state is often, and indeed
usually, intrusted with the expression of that will in its details.
These details, however, when expressed, must conform with the
general principles laid down by the organ whose main duty is that
of expression. That is, the authority called executive has, in
almost all cases, considerable ordinance or legislative power.
The notion that Goodnow might see
administration as subordinate to politics--as confined only to
executing previously expressed will or law--is hereby called
into question. Goodnow's statement essentially laid the foundation
for the bureaucracy to act without the prior enactment of law by
the legislature. He elaborated: "As a result, either of the
provisions of the constitution or of the delegation of the power by
the legislature, the chief executive or subordinate executive
authorities may, through the issue of ordinances, express the will
of the state as to details where it is inconvenient for the
legislature to act."
The key to trusting administrators with
the kind of discretion that Goodnow envisioned was his profound
faith in the expertness and objectivity of the administrative
class, just as it had been for Wilson. Administrators could be
freed from political control because they were "neutral." Their
salary and tenure would take care of any self-interested
inclinations that might corrupt their decision making, liberating
them to focus solely on truth and the good of the public as a
whole. As Goodnow explained:
[S]uch a force should be free from the
influence of politics because of the fact that their mission is the
exercise of foresight and discretion, the pursuit of truth, the
gathering of information, the maintenance of a strictly impartial
attitude toward the individuals with whom they have dealings, and
the provision of the most efficient possible administrative
A natural objection here would be that
freeing administrators from political control is a recipe for
corruption--that it is precisely through the electoral connection
of public officials that we "make their interest coincide with
their duty," as Hamilton puts it in The Federalist.
But for Goodnow, it is just this connection to electoral politics
that would make administrators corrupt, while the absence of
accountability to the electorate somehow makes them pure. Politics,
Goodnow explained, is "polluted" and full of "bias," whereas
administration is all about the "truth." Goodnow's confidence in
the objectivity of administrators, like Wilson's, is a sign of his
Hegelianism, and it shows that he accepted Hegel's premise that
bureaucrats could be freed of their particularity and devote
themselves wholly to the objective good of the state.
Conclusion: The Legacy of Progressivism
The main tenets of the Progressive
vision for administration, articulated by the likes of Wilson and
Goodnow, have come to have a powerful influence in the
administrative state by which America is governed today.
For a thorough understanding of this phenomenon, one would, of
course, have to examine the translation of Progressive ideas into
the actual reshaping of American government that took place during
the New Deal of Franklin Roosevelt, but even a brief glance at
the primary features of the modern state shows important
continuities between it and the main principles of Progressivism.
In particular, the constitutional separation-of-powers structure
that was designed to preserve individual rights and uphold the rule
of law has been considerably weakened, and we can see the effects
of Progressivism on the three key tenets of the separation of
powers that were described at the outset of this essay.
As legal scholar Gary Lawson explains
in a seminal essay on the topic, the Supreme Court ceased applying
the non-delegation principle after 1935 and allowed to stand a
whole body of statutes that enact the new vision of administrative
power. These statutes, to varying degrees, lay
out Congress's broad policy aims in vague and undefined terms and
delegate to administrative agencies the task of coming up with
specific rules and regulations to give them real meaning. The
executive agencies, in other words, are no longer confined to
carrying out specific rules enacted by Congress, but are often left
to themselves to determine the rules before seeing to their
Lawson cites, for example, securities
legislation giving the SEC the power to proscribe the use of "any
manipulative or deceptive device or contrivance in contravention of
such rules and regulations as the Commission may prescribe as
necessary or appropriate in the public interest or for the
protection of investors." The agency, on the basis of its
expertise, and not Congress, on the basis of its electoral
connection, is charged with determining the specific policy that
best serves the "public interest." In another example, legislation
on broadcast licenses directs that the Federal Communications
Commission (FCC) shall grant licenses "if public convenience,
interest, or necessity will be served thereby."
More recently, the Supreme Court under
William Rehnquist made clear that there would be no revisiting the
abandonment of non-delegation. In the case of Mistretta v.
United States, the Court upheld the statute that delegated to
the U.S. Sentencing Commission the power to set sentences (or
sentencing guidelines) for most federal crimes. If any case were
going to constitute grounds for non-delegation review, it would
have been this one. Congress created the Sentencing Commission as,
essentially, a temporary legislature with no purpose other than to
establish criminal penalties and then to go out of existence.
But Mistretta simply served as confirmation that the federal
courts were not going to bring the legitimacy of the administrative
state into question by resurrecting the separation of powers.
The second tenet of separation of
powers--the prohibition on combining functions--has fared no better
in modern constitutional and administrative law. As Lawson
explains, "the destruction of this principle of separation of
powers is perhaps the crowning jewel of the modern administrative
revolution. Administrative agencies routinely combine all three
governmental functions in the same body, and even in the same
people within that body." His example here is the Federal Trade
The Commission promulgates substantive
rules of conduct. The Commission then considers whether to
authorize investigations into whether the Commission's rules have
been violated. If the Commission authorizes an investigation, the
investigation is conducted by the Commission, which reports its
findings to the Commission. If the Commission thinks that the
Commission's findings warrant an enforcement action, the Commission
issues a complaint. The Commission's complaint that a Commission
rule has been violated is then prosecuted by the Commission and
adjudicated by the Commission. The Commission adjudication can
either take place before the full Commission or before a
semi-autonomous administrative law judge. If the Commission chooses
to adjudicate before an administrative law judge rather than before
the Commission and the decision is adverse to the Commission, the
Commission can appeal to the Commission.
The FTC is a particularly apt example,
since it was the "quasi legislative" and "quasi judicial" character
of the FTC that was upheld in 1935, in the landmark Supreme Court
case of Humphrey's Executor v. United States--the first time
that the Court so clearly acknowledged that agencies technically
within the executive branch could exercise substantially
Progressive liberalism has also
succeeded, at least partly, in defeating the third tenet of the
separation-of-powers framework by weakening the political
accountability of administrators and shielding a large subset of
agencies from most political controls. While the independence of
"independent regulatory commissions" and other "neutral" agencies
is not as clearly established as delegation and combination of
functions, the federal courts have certainly recognized the power
of Congress to create agencies that are presumably part of the
executive (where else, constitutionally, could they be?) but are
nonetheless shielded from direct presidential control. Normally,
this shielding is accomplished by limiting the President's freedom
to remove agency personnel. In Humphrey's Executor, for
example, the Supreme Court overturned the President's removal of an
FTC commissioner by reasoning that the Commission was more
legislative and judicial than it was executive. More recently, it
upheld the Independent Counsel provisions of the Ethics in
Government Act (the provisions were subsequently repealed),
concluding that even an office as obviously executive in nature as
a prosecutor could be shielded from presidential control.
These rulings reflect the acceptance of
a key tenet of the modern administrative state: that many areas of
administration are based upon expertise and neutral principles and
must therefore be freed from the influence of politics. That such a
notion has become ingrained in the American political mindset was
evidenced by the near universal outrage expressed over the Supreme
Court's 2000 decision in FDA v. Brown and Williamson. In
this surprising exception to its standard deference for agencies,
the Court ruled that before the Food and Drug Administration (FDA)
could promulgate and enforce regulations on tobacco, Congress first
had to pass a law actually giving the agency the authority to do
so. The decision, which simply upheld the
rule of law, was denounced because it would subject tobacco
regulation to the control of the people's elected representatives
in Congress, where tobacco-state legislators might derail it,
instead of giving FDA scientists carte blanche to regulate
in accord with their own expertise.
The acquiescence in the realms of law,
politics, and culture to the concepts of delegation, combination of
functions, and insulating administration from political control is
explained by what legal scholars call the victory of
"functionalism" over "formalism," or what political theorists might
loosely translate as "pragmatism" over "originalism." Simply
defined, a functionalist or pragmatic approach begins not with the
forms of the Constitution, but with the necessities of the current
age, thereby freeing government from the restraints of the
Constitution so that the exigencies of today can be met. As one
scholar argues, "Respect for 'framers' intent' is only workable in
the context of the actual present, and may require some selectivity
in just what it is we choose to respect." This sentiment, elevating
expedience and efficiency over the separation of powers, was
expressed very clearly by Justice Blackmun in his opinion for the
Court in Mistretta: "Our jurisprudence has been driven by a
practical understanding that in our increasingly complex society,
replete with ever changing and more technical problems, Congress
simply cannot do its job absent an ability to delegate power under
broad general directives."
The rise of the administrative state
that is such an integral feature of modern liberalism thus required
the defeat of the separation of powers as a governing principle, at
least as it was originally understood, and its replacement by a
system that allows delegations of power, combination of functions,
and the insulation of administration from the full measure of
political and legal control.
Ronald J. Pestritto, Ph.D., is
Associate Professor of Political Science at Hillsdale College,
where he holds the Charles and Lucia Shipley Chair in the American
Constitution. He is also a Senior Fellow of the Claremont Institute
for the Study of Statesmanship and Political Philosophy and author
ofWoodrow Wilson and the Roots of Modern Liberalism.Research
conducted during the author's time as a Visiting Scholar at Bowling
Green's Social Philosophy and Policy Center has been invaluable to
his work on Progressivism and the administrative state, and he
gratefully acknowledges the Center's support.
 Securities and Exchange Commission v.
Chenery, 318 U.S. 80 (1943), at 92-93.
 Securities and Exchange Commission v.
Chenery, 332 U.S. 194 (1947), at 202.
 Thomas G. West, "The Constitutionalism of the
Founders vs. Modern Liberalism," Nexus: A Journal of
Opinion, Vol. 6, No. 1 (Spring 2001), p. 79.
 See Publius, The Federalist, ed. Jacob
E. Cooke (Middletown, Conn.: Wesleyan University Press, 1961), No.
51, pp. 347-349. All citations to The Federalist will cite
the paper number, followed by page number in the Cooke edition.
 See John Locke, Second Treatise,
chapter 12 ("Of the Legislative, Executive, and Federative Power of
the Commonwealth"), and Montesquieu, Spirit of the Laws,
Part 2, Book 11, Chapter 6 ("On the Constitution of England").
 Federalist No. 47, p. 324; Thomas
Jefferson, Notes on the State of Virginia, Query XIII: "The
Constitution of the State, and Its Several Charters," paragraph
 See Federalist No. 48, p. 332.
 Federalist No. 47, p. 324.
 Federalist No. 14,
 U.S. Constitution, Article
II, Sections 1, 3.
 One of the best
explications of this principle is found in Justice Antonin Scalia's
dissent in Morrison v. Olson, 487 U.S. 654 (1988), at
 Woodrow Wilson, The
State (Boston: D.C. Heath, 1889), p. 651. Emphasis in
 John Dewey, Liberalism
and Social Action (New York: Capricorn Books, 1963), p. 32.
 For a more elaborate
explication of Wilson's teaching on administration and the broader
connection between his principles and modern liberalism, see R. J.
Pestritto, Woodrow Wilson and the Roots of Modern Liberalism
(Lanham, Md.: Rowman & Littlefield, 2005).
 Federalist No. 51,
 See, for example,
Federalist No. 6, where Publius addresses the
Anti-Federalist and Enlightenment notion that human nature had
improved and become less dangerous. He characterizes those holding
such notions as "far gone in utopian speculations."
Federalist No. 6, p. 28.
 Federalist No. 23,
 Wilson, Congressional
Government, 15th ed. (Boston: Houghton Mifflin, 1900 [orig.
pub. 1885]), p. 42.
 Wilson, The New
Freedom (New York: Doubleday, Page and Company, 1913), p.
 Wilson, "The Art of
Governing," November 15, 1885, in The Papers of Woodrow
Wilson (hereafter cited as PWW), 69 vols., ed. Arthur S.
Link (Princeton, N.J.: Princeton University Press, 1966-1993), Vol.
5, p. 52. Emphasis in original.
 Wilson, "Government By
Debate," December 1882, in PWW, Vol. 2, p. 224.
 Wilson, "Notes for
Lectures at the Johns Hopkins," January 26, 1891, in PWW,
Vol. 7, p. 122.
 Wilson, "Notes for
Lectures," in PWW, Vol. 7, p. 121. Emphasis added.
 Wilson, "Notes for
Lectures," in PWW, Vol. 7, pp. 134-138.
 Wilson, "What Can Be Done
for Constitutional Liberty," March 21, 1881, in PWW, Vol. 2,
 Wilson, "Notes for
Lectures," in PWW, Vol. 7, p. 122.
 See G. W. F. Hegel,
Philosophy of Right, trans. T. M. Knox (Oxford: Oxford
University Press, 1967), pp. 191-192.
 Wilson, "The Study of
Administration," November 1886, in PWW, Vol. 5, p. 378.
Emphasis in original.
 Wilson, "Notes for
Lectures," in PWW, Vol. 7, pp. 118-120. Wilson's mention of
Goodnow came in an 1894 revision he made to these notes.
 Samuel C. Patterson,
"Remembering Frank J. Goodnow," PS, Vol. 34, No. 4 (December
2001), pp. 875-881; Charles G. Haines and Marshall E. Dimock,
"Introduction" to Essays on the Law and Practice of Governmental
Administration: A Volume in Honor of Frank Johnson Goodnow, ed.
Haines and Dimock (Baltimore: Johns Hopkins Press, 1935), pp.
 Frank J. Goodnow,
Social Reform and the Constitution (New York: Macmillan,
1911), p. 1.
 Frank J. Goodnow,
Politics and Administration (New Brunswick, N.J.:
Transaction, 2003 [orig. pub. 1900]), pp. 86-87.
 Goodnow, Social Reform
and the Constitution, p. 2.
 Frank J. Goodnow, The
American Conception of Liberty and Government (Providence,
R.I.: Brown University Colver Lectures, 1916), p. 20.
 Frank J. Goodnow,
Comparative Administrative Law, student edition (New York,
Putnam, 1893), p. iv. See Wilson's similar statement in "The Art of
Governing," in PWW, Vol. 5, p. 52, quoted above.
 Goodnow, Politics and
Administration, pp. xxxi, 1-3.
 Goodnow, Social Reform
and the Constitution, pp. 1, 3. See also The American
Conception of Liberty and Government, p. 13, where Goodnow
identified the main problem with the American conception of liberty
and government as its foundation in nature.
 Goodnow, The American
Conception of Liberty and Government, p. 11.
 Wilson, The State,
 Goodnow, The American
Conception of Liberty and Government, p. 11.
 Ibid., p. 45. See
also p. 36.
 Goodnow, Politics and
Administration, pp. 5-6.
 Goodnow, Comparative
Administrative Law, p. v.
 Ibid., pp. 1,
 See, for example, Goodnow,
Politics and Administration, p. 16. For an account of this
point, see Patterson, "Remembering Goodnow," p. 878.
 Goodnow, Politics and
Administration, p. 15.
 For an example of
Goodnow's making such a claim, see ibid., p. 24.
 Federalist No. 72,
 Goodnow, Politics and
Administration, p. 82.
 When speaking of Wilson
and Goodnow as founders of the administrative state, I do not
suggest that we see in the modern administrative state the
complete fulfillment of the ideas of these men. The primary
features of administration today--delegation, combination of
functions, limited presidential control--are grounded in the notion
of separating administration from politics; but like most political
phenomena, this separation does not go quite as far in practice as
it did in theory. In spite of the dramatic push toward establishing
significant administrative discretion over policymaking, it still
matters very much, for example, what happens in Congress and the
presidency. The point of this essay is, however, to explore the
animating ideas behind the growth of the administrative
state in the 20th century and to suggest the ways in which such
ideas developed out of Progressive political theory. The principles
of Wilson and Goodnow are, in this way, central to the very premise
of the modern administrative state.
 For a more extensive
discussion of the principles of Wilson and Goodnow and their
adoption in the New Deal by Roosevelt's administrative architect,
James Landis, see R. J. Pestritto, "The Progressive Origins of the
Administrative State: Wilson, Goodnow, and Landis," Social
Philosophy and Policy, Vol. 24, Issue 1 (January 2007), pp.
 Gary Lawson, "The Rise and
Rise of the Administrative State," Harvard Law Review, Vol.
107 (1994), p. 1240. He cites two cases as the last instances of
the Court's applying the non-delegation doctrine: Schechter
Poultry v. United States, 295 U.S. 495 (1935), and Panama
Refining Co. v. Ryan, 293 U.S. 388 (1935).
 Lawson, "Rise and Rise,"
p. 1240. He cites here these sections of the U.S. Code: 15 U.S.C.
Sec. 78j(b) and 47 U.S.C. Sec. 307(a).
 Mistretta v. United
States, 488 U.S. 361 (1989).
 Lawson, "Rise and Rise,"
 Humphrey's Executor v.
United States, 295 U.S. 602 (1935). See also the more recent
case of Withrow v. Larkin, 421 U.S. 35 (1975), which upholds
and confirms the combination of functions in the administrative
 Humphrey's Executor v.
United States. See also Nolan Clark, "The Headless Fourth
Branch," in The Imperial Congress, ed. Gordon S. Jones and
John A. Marini (New York: Pharos Books, 1988), pp. 268-292.
 FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120 (2000). This is,
strictly speaking, a statutory case as opposed to a non-delegation
(i.e., constitutional law) case, and the Court does not, in its
opinion, indicate any reversal of its long-established delegation
jurisprudence. Rather, the significance of the case comes from the
Court's refusal, in a high-profile controversy, to read into the
law a deference to agency expertise that was not there in the first
 Peter L. Strauss, "Formal
and Functional Approaches to Separation-of-Powers Questions: A
Foolish Inconsistency?" Cornell Law Review, Vol. 72 (1987),
p. 493. See also Strauss, "The Place of Agencies in Government:
Separation of Powers and the Fourth Branch," Columbia Law
Review, Vol. 84 (1984), pp. 573-669.
 Mistretta v. United
States, 488 U.S. 361, at 372.