Live at Boston Review: on the Administrative State and Liberty

From the intro: “To some observers, this situation is fundamentally at loggerheads with the Constitution. The problem isn’t this or that agency; it is the administrative state itself, an alien import from European collectivism, which destroyed the laissez-faire liberty Americans supposedly enjoyed in the nineteenth century. Today, opposition to the administrative state unites everyone from George Will, who says the Affordable Care Act “serves principally to expand the administrative state’s unfettered discretion,” to Supreme Court Justice Clarence Thomas, who sees the administrative state as evidence of a “belief that bureaucrats might more effectively govern the country than the American people,” to Senator Mike Lee, Glenn Beck, and the Tea Party broadly. [….]

But a new wave of legal history is overturning the narrative of paradise lost. In Jerry Mashaw’s Creating The Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012), we see that the early U.S. government was both far more bureaucratic and expansive than partisans of deregulation assert. And Daniel Ernst, in Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (2014), attacks the alien-import thesis, arguing that modern American regulatory agencies were justified by domestic legal norms.

Indeed, this scholarship does more than just show how far back the administrative state goes in American history. It shows that the practices and institutions of bureaucrats have not assaulted our Constitutional liberties but rather have helped define and expand our very notion of liberty. This emergent school of thought, known as ‘administrative constitutionalism,’ documents how our institutions, in their everyday dealings with the public, provide the basis for the liberties courts end up adopting and ratifying.”