Bureaucracy and Constitutionalism

Although plans are well underway for celebrating the bicentennial of the U.S. Constitution in 1987, it is doubtful that many of the public will be aware — or if aware would care to celebrate — a centennial milestone in the history of American government that teachers of political science will recognize as having great importance for American constitutionalism. I refer to what may be described, with some historical license, as the birth of the administrative state. This event was announced by the publication in 1887 of Woodrow Wilson's famous essay, "The Study of Administration," and by the creation in the same year of the Interstate Commerce Commission, the prototype of the independent regulatory agencies that were to affect so profoundly the nature of American government in the twentieth century. The anticipation of this dual commemoration provides occasion for considering the relationship between constitutionalism and bureaucracy, two basic issues in contemporary political life which are too seldom studied in relation to each other.

We have long been accustomed to think of the twentieth century as an age of bureaucracy, positive government, the omni-competent state. We are equally familiar in recent years with attacks on bureaucratic government that verge on repudiation of the very idea of scientific public administration. These attacks come from different directions, but the implicit perspective of the most common charge — that bureaucracy is out of control — is a constitutional one.

If dissatisfaction with the administrative state reflects attention to constitutional limitations, it is nevertheless true that interest in constitutionalism revived in the mid-twentieth century for reasons other than bureaucratic excesses. After a period of debunking and demythologizing in the era of reform (1900-1940), constitutional values, principles, and rules came to be appreciated in the era of World War II and the Cold War as a political method and ideology essential to the preservation of free institutions against totalitarian assault. This lesson was forgotten by radicals and reformers in the 1960s, who while primarily concerned with attacking the liberal bureaucratic state, offered a fundamental challenge to constitutionalism.1 By a kind of democratic dialectic, however, the Watergate affair, a ready symbol of the dangers of bureaucratic power, transposed the radical threat into an establishment-based brush with executive tyranny. Richard Nixon abruptly ended the development of the liberal activist presidency, at least for the time being, and converted many tough-minded pragmatists into constitutionalists.

In the past decade demands for constitutionalizing the bureaucracy have persisted, even as courts have complicated matters by adopting the techniques of administrative policy making in further derogation of the requirement of democratic accountability.2 Meanwhile the advent of a conservative administration urging deregulation as an approach to the problem of bureaucracy has raised liberal fears, with respect to civil rights, social welfare, and other issues, of wholesale policy changes that are seen as a violation of fixed legal and constitutional rules and principles. The continued appeal to constitutionalism and the persistence of the problem of bureaucracy suggest the timeliness of reflection on the bearing these issues have on each other in contemporary political life.

A curious disparity appears when one surveys the materials dealing with this question. Bureaucracy, or public administration, is a relatively clearly defined field with specialized journals, a well-developed curriculum, and academic departments and schools devoted to its study. Most scholars outside the field, as well as citizens, have definite views about bureaucracy. Constitutionalism by contrast suffers from want of attention. It is seldom the subject of direct and explicit study, although, to be sure, teachers and practitioners in government and politics readily employ constitutional notions in evaluating institutions and events. In the organization of scholarship and teaching, constitutionalism tends to break down into its principal components. These are the constitutional document, including constitutional law; governmental and political institutions derived from or related to the founding charter; and political and constitutional theory, including popular attitudes toward liberty, authority, social justice, and so on. If constitutionalism is not necessarily greater than the sum of its parts, it ought at least to be recognized as a distinctive ideology and approach to political life that warrants holistic analysis. Constitutionalism not only establishes the institutional and intellectual framework, but it also supplies much of the rhetorical currency with which political transactions are carried on. This very ubiquity and utility suggest that it possesses a variety of meanings.

Liberal Constitutionalism

Recent work on constitutionalism builds on the classic accounts of, among others, Charles H. McIlwain, Andrew C. McLaughlin, Edward S. Corwin, William Yandell Elliott, Carl J. Friedrich, J. W. Gough, Francis D. Wormuth, and M. J. C. Vile. The principal theme in this literature is the emergence of modern constitutionalism from the seventeenth to the nineteenth century as the theory and practice of limited government, for the protection of individual liberty and property against despotic rule. The twentieth-century story concerns the adaptation of liberal constitutional principles and institutions to the demand for social justice and economic regulation, in the face of challenge from revolutionary and totalitarian political systems and ideologies. Two basic techniques or approaches implement traditional constitutionalism. The first is the rule-of-law tradition, which seeks to limit power through the judicial application of fundamental law external and superior to governmental institutions, and to make it responsible through popularly controlled instruments of political accountability. The second constitutionalist technique is structural, and consists in so arranging the forms and institutions of government as to provide limited yet effective power.

In the twentieth century, constitutions have become universal as a formal requirement in state making or political reconstruction. Yet at the same time they appear less relevant to the actual conduct of government. In a well-known essay of 1962 Giovanni Sartori analyzed this phenomenon from a liberal constitutionalist perspective that offers a framework in which to consider contemporary treatments of the subject. Rejecting the positivist view of constitution as descriptive of political institutions in general, Sartori insists on a normative and prescriptive meaning. Properly understood through historical development, he writes, a constitution prescribes and limits governmental power in order to guarantee the rights of individual liberty and property. If we grant the positivist contention that every state has a constitution, it is nevertheless not true that every state is a constitutional state. Against the fact-value distinction of modern social science and the totalitarian obliteration of values to which it logically leads, Sartori asserts a normative constitutionalism aimed at securing negative liberty against government. This teleological purpose rather than any specific institutional configuration distinguishes the constitutionist outlook in Sartori's view.3

Sartori can be criticized for ignoring ancient constitutionalism, in which constitutions were enactments of the sovereign intended to establish, regulate, and set limits to the political order and the institutions of government. In this still relevant view constitutions exist to create power for the conduct of the public business as well as to prevent the abuse of power. Although it runs the risk of equating constitutional government with the pursuit of desirable political ends or problem-solving purposes, this broader conception accommodates the modern demand for socially constructive government more readily than does negative-liberty constitutionalism. Accordingly its influence is considerable in contemporary discussions.4

Citizen-Activist Constitutionalism

Although a suitable doctrine for defending the western democracies in the Cold War, liberal constitutionalism appeared increasingly irrelevant in the 1960s. The antipluralist "crisis literature" of political science that dominated the latter part of the decade might have been mistaken for a wholesale repudiation of the purposes and methods of checks and balances and the rule of law. It is nevertheless possible to see in the radical critique an alternative constitutional outlook which regards the exercise of governmental power to promote positive liberty as the controlling purpose of political life. In this view liberty is not the right of individuals to pursue economic and other private interests free from government supervision. It is rather the ability of virtuous citizens, either individually or collectively, to fulfill their human potential through political participation and action. Citizen-activist constitutionalism transcends the dichotomy between the public and private spheres by confining the latter within narrow bounds, if not actually abolishing it. It thus enables individuals to overcome the alienation from the public good that is caused by pluralistic democracy under the rule of law. A further dimension of human freedom in citizen-activist constitutionalism results from the imposition of participatory democratic controls on corporate economic power, and on the political power of public and private bureaucracies.5

Perhaps illogically, the radical critique of pluralistic institutions attracted less attention during the Watergate affair, which insofar as it illustrated the abuse of executive power recalled the importance of traditional rule-of-law and checks-and-balances constitutionalism. Whether the resolution of the affair signified vitality or infirmity in the American polity was and perhaps remains an open question. In any event, as radicalism waned a sympathetic reform impulse superseded it, extending government regulation throughout the 1970s into new environmental and social-welfare areas and applying the rule of democratic citizen participation to political and governmental institutions in a wholesale way. Though with nothing like the hostility evinced by its radical antecedent, this reformism seemed to confirm the long-range irrelevance of negative-liberty constitutionalism.

Support for this view appeared in a major publication of the political science profession in the mid-1970s, Handbook of Political Science (1975). In the essay on constitutionalism, Harvey Wheeler declared that liberal constitutionalism was inadequate to contemporary needs. The old constitutionalism no longer serves governmental purposes, Wheeler reasons, because the assumptions on which it rested — individualism and rationality in the conduct of political life — have been obliterated by the complexities of corporate and group social existence, and by scientific and psychological advances. Wheeler holds that the American Constitution in particular, in its fragmentation of power and functional division of government, is incongruous with modern realities and incapable of achieving necessary social ends. He therefore asserts that a new constitutionalism is needed. But Wheeler is unable to delineate its characteristics with any clarity. Offering an attenuated version of the citizen-activist ideal, he defines constitutionalism as a way of directing government and law toward the achievement of the common good, through the application of democratic civic wisdom to political problems. Constitutionalism is unworkable, Wheeler concludes pessimistically, but it continues to be necessary because it is the only effective way to enlist popular energies in the pursuit of the common good. Seeking refuge in symbols, he suggests that constitutionalism can become a self-fulfilling myth possessing existential and functional validity.6

Into the 1980s: Constitutional Pluralism

If this is all that can be said for constitutionalism, new or old, the prospect is grim indeed. Fortunately it is not, as the essays in Constitutionalism (1979), a volume in the Nomos series attest.7 To some extent Gordon J. Schochet's account of the recent intellectual history of constitutionalism confirms Wheeler's pessimism. Constitutionalism has fallen into intellectual disrepute and is no longer part of our vocabulary of politics, Schochet states. In part this is because constitutions, existing everywhere but in many places only as a façade, have been trivialized; because of the alleged inadequacy of limited government to modern social problems; and because the revolt against liberalism and the behavioralist rejection of formalism became a repudiation of constitutionalism. Yet Schochet and the contributors to the Nomos volume resist this trend.

Defining constitutionalism in limited-government, rule-of-law terms, Schochet criticizes the realist attack on formalism and proceduralism. He is further skeptical of citizen-activist constitutionalism of the 1960s, observing that the capacity for accomplishing the public good and promoting civic education by political action is also the capacity to do public evil. Schochet's preference is for a pluralistic and procedural constitutionalism, characterized by formal rules and a clear public-private distinction intended to confine the sphere of politics and the scope of governmental intervention.8 George Kateb argues that constitutional procedures, usually dismissed by pragmatic realists as less important than ends and goals expressing moral purpose, themselves possess moral significance that redefines political ends. Indeed, Kateb reasons that procedures like due process and democratic elections may transcend their instrumental nature and become the real ends of society. He thus attempts to demonstrate the intrinsic value of constitutional procedures.9 In a concluding essay }. Roland Pennock observes signs of constitutional vigor in the exercise of judicial power, preferable he suggests to government by bureaucracy; in the continued operation of institutional checks and balances among the branches of government; and in a still strong popular hostility to government authority.10

If there has been little general theory of constitutionalism, there has been much theorizing about a key institution in the contemporary polity — constitutional adjudication by the judiciary. The continued expansion of judicial power has been a major development of the post-New Deal era, and like earlier aggrandizements has required democratic sanction. Theories of judicial review are intended to supply this need and reconcile government by judiciary with the principles of liberal constitutionalism.

Illustrative of this literature and relevant to the present inquiry is William F. Harris's essay, "Bonding Word and Polity: The Logic of American Constitutionalism" (1982).11 Harris presents his analysis in the fashionable idiom of semiotics, but it is really an updated version of the old legal-realist contention that the Constitution is not just the formal document, but also the effective governing institutions of the political order.12 The words of the Constitution create the polity, Harris reasons, and the institutions of the polity in turn become a "text" requiring interpretation. Using the polarities of word and institution and immanence (text-bound) and transcendence (non-text-bound), he de- scribes four styles of constitutional interpretation.13 He states that as long as courts stay within these several modes of adjudication they do not abuse their power. Harris does not consider, however, the possibility that other constitutional actors may use these techniques, nor the potential usefulness of the method of "transcendent structuralism," in particular. This method regards the political order and the external structure of institutions as an "organized text," available as a source of inferences to be applied in settling constitutional disputes.

Harris describes this "two-text Interpretable Constitution" as a bounded construction. Yet it is difficult to see where the limits come from or who will establish them, especially when, as he stipulates, original constitutional intention is rejected as authoritative. Using semantic theory, he states that as a work when it is written leaves the control of the author, so the words of the Constitution lose their connection with the intent of the Framers. "Because the polity changes in accordance with the logic incorporated in it," Harris writes, "the regulative link with the framers' thoughts could not plausibly endure." To adhere to original intent, he adds, would be to revert to the rule of will over the rule of law. When Harris defines the rule of law as adherence to the constitutional text, however, and then treats the structure of institutions as the text, one begins to doubt the boundedness or confining effect of his Constitution.14 The practical conclusion to which this logic points is that existing institutions and the actions of government officials are by definition constitutional. If this be constitutionalism, its flexibility is remarkable indeed.

The implicit question behind Harris's model building is how the Constitution works rather than whether it works. That the issue should be posed in this way is no doubt encouraging. But if the "two-text" Constitution does not do what it is supposed to — namely, set boundaries on power, provide a basis for rights, and make the political and governmental system "legible" to citizens — there is little cause for optimism. There is, however, another way of thinking about constitutional text, principles, institutions, and values which enables us to understand more clearly the effect of constitutionalism on political life.

Constitutionalism and Political Action

In addressing this question we confront the argument that because constitutions are concerned with forms and procedures rather than the substantive ends thought to motivate political action, they do not deal with the basic reality of political life. The short answer to this line of reasoning is that constitutional text, rules, principles, and values — and constitutionalism as the coherent ordering of these elements into an ideology — are political and social reality.

Constitutionalism shapes political life in a variety of ways. Constitutional principles can become matters of commitment and belief possessing intrinsic value that motivate political action. Does this not explain the zeal with which civil libertarians defend unpopular agitators or neighborhood associations oppose forced busing? When citizens and governing officials internalize constitutional values, acting out of fidelity to law rather than expediency, constitutionalism gives direction to political life.

Constitutionalism has a configurative effect also in providing the forms, rhetoric, and symbols by which politics is carried on. Political groups and individuals ordinarily try to choose courses of action that are consistent with or required by the Constitution. They do so not because they are in each instance committed to the constitutional principle or value at issue; in different circumstances they may employ an alternative or conflicting principle. Rather, political and governmental actors adhere to constitutional standards because they know that the public takes the Constitution seriously, believing that it embodies fundamental values and formal procedures that are the touchstone of political legitimacy.15 In American politics the Constitution is a justifying concept, and groups that invoke constitutional arguments do so, from their own perspective perhaps and in an immediate sense, instrumentally. Considered from an external and long-range view in relation to the polity as a whole, however, reliance on constitutional principles and rules is normative and noninstrumental. In this way constitutionalism shapes political events.

Is this happening in the United States today? Certainly there has been no surcease of constitutional controversy; indeed, quite the opposite is the case as new issues and aspects of social life are brought within the ambit of government through the reach of the due process clause or the equal protection requirement. Are the basic purposes of constitutionalism — to limit government in the interest of individual liberty while assuring effective government for the accomplishment of collective social ends — being fulfilled? We may agree that as long as peaceful methods of political change are employed and violence eschewed, constitutionalism is effective at a minimal level. But there is much to demand of a constitutional state beyond keeping the peace.

Some observers, for example, believe unwillingness or inability to control private economic power by democratic means renders government too weak for the preservation of constitutional liberty and the public good.16 Lack of public confidence in political institutions is similarly regarded as evidence of a constitutional problem of governmental weakness and incompetence.17 More often, however, government's far-reaching power, exercised for national security purposes and egalitarian social interventions, appears to threaten constitutional liberty.18 Courts, Congress, and the executive can all be criticized on this score, under the negative-liberty principle that public opinion continues to hold in high esteem. The principal danger to liberty, however, is thought to come from administrative institutions. The existence of impersonal, remote, and irresponsible bureaucracy appears as a challenge to constitutionalism.

The Problem of Bureaucracy: Historical Origin

From the constitutionalist point of view the problem of bureaucracy arises not from the mere fact of hierarchically organized institutions performing specialized functions, but from the exercise of unauthorized political and governmental power by administrative bodies. The problem of bureaucracy, in other words, is the ancient problem of discretion versus law.

In early modern constitutionalism this problem took the form of the struggle to bring the executive under legal limitation. Administrative capacity was a necessary attribute of government; it was the king's abuse of discretionary power inherent in the administrative role that was objectionable. When the separation of powers was introduced briefly in seventeenth-century England and permanently in revolutionary America as an alternative to mixed government, its purpose was to deprive the executive of law- and policy-making authority and confine it to the nondiscretionary duties that properly defined the executive office. Although an administrative system emerged in the United States and became an object of political controvery in the early nineteenth century, the problem of law versus discretion was fought out between Congress and the executive or the judiciary and the political branches. It was not until administrative institutions began to exercise law- and policy-making authority independently of the political branches, contradicting the separation-of-powers requirement that governmental measures interfering with liberty and property must be authorized by politically responsible institutions, that the problem of bureaucracy assumed its recognizably modern form.

To consider the historical relationship between bureaucracy and constitutionalism is to ask not only when but why administrative power became problematic. Bureaucratic organization is usually regarded as a functional requirement of modernizing societies, and as the United States experienced this transformation in the late nineteenth and early twentieth century, the problem of bureaucracy is often viewed as a necessary corollary of the creation of an industrial capitalist economy. Closer examination suggests, however, that the growth of discretionary administrative power was the result of political decisions rather than an inevitable constitutional development.

Americans have always desired limited, responsible, democratic government, and also rational, efficient, and economical government. In the post-Civil War period and continuing for fifty years, reformers, politicians, academics, professionals, businessmen, publicists, and enlightened opinion in general supported efforts to create a structure of administrative authority that could secure these often incompatible goals. A central purpose of progressive reform was to confer governmental authority on new administrative institutions to regulate a rapidly changing society and economy. Rejecting popularly elected, corrupt, inefficient legislatures, reformers favored the delegation of legislative power to independent administrative agencies. They believed this would lead to nonpolitical yet democratically legitimate policy making by trained and knowledgeable administrative experts, acting in accordance with broad statutory mandate to promote the public good.19

This was a normative vision intended to guide political reform, not an empirical description of the governmental system.20 In fact power conferred by Congress on executive and administrative bodies in moments of exuberant reform, from the creation of the Interstate Commerce Commission in 1887 to the proliferation of regulatory agencies during the New Deal, was discretionary and decidedly political. Moreover the exercise of power in the regulatory state of the twentieth century did not proceed in the rational, coherent, and unified manner predicted by public administration theory, but rather conformed to the pluralistic and decentralized pattern encouraged if not always required by the constitutional order. The administrative state adapted to the existing political culture.

This adaptation did not occur naturally or automatically, however. The institutions whose power was threatened by the new administrative state — the judiciary, the legislature, political parties — mounted effective resistance. Using their power of judicial review, courts rejected the notion of independent regulatory agencies interfering with individual liberty and property to promote the public interest under the presumptive legitimacy of the European idea of administrative law.21 Congress, expressing the reaction of localistic political parties to centralized coordination, maintained an effective hold on administration through its committee system and power over appropriations. Aligned with private interest groups, party-legislative managers absorbed the regulatory apparatus into the constitutional order. Administrative agencies were by no means powerless; they acquired broad policy-making authority under the delegation of legislative power. Nevertheless, because Congress was unwilling to make political choices in the face of conflicting constituent demands, major regulatory enactments often failed to provide clear standards for administrators to follow. Pluralistic group conflict was extended from the legislature where it belonged into the arena of bureaucratic policy making where according to administrative theory it did not. The result, clearly evident by the 1950s, was the problem of bureaucracy: discretion versus law, or as Theodore J. Lowi put it in his classic study, policy without law.22

Constitutionalizing Bureaucratic Government: The Contemporary Debate

The problem of bureaucracy may be viewed as the historical manifestation of tendencies immanent in the polity. Administrative science places a high value on rationality, unity, energy, efficiency, and substantive policy results in the conduct of government. Many public administration scholars describe a different set of values as constitutional: decentralized power, institutional restraints, guarantees of individual liberty, an emphasis on forms and procedures rather than substantive ends. This way of posing the issue requires a more narrow and traditional liberal conception of constitutionalism than many would accept. But a persuasive case can be made that the framers of the Constitution, reacting to the excesses of British rule, obfuscated if they did not deny basic requirements and realities of administrative authority.23 There is much truth in the view which regards American political history as a continual conflict between modernizing attempts to create effective policy-making and administrative institutions, and a deeply ingrained premodern hostility toward government authority.24 Depending on how one defines constitutionalism, under the variety of meanings and emphases shown to be available in this discussion, one may accommodate administrative power and discretion as legitimate policy making or regard it as suspect.25 Most of the time, however, bureaucracy is viewed in the perspective of limited-government constitutionalism: the student of contemporary politics must account for the widespread belief that public and private bureaucracies are too big, too powerful, and all but impervious to effective control. And it appears things may be getting worse, not better. Not only do traditional economic, professional, and ethno-cultural interest associations maintain their place in the subgovernments of administration, but, as a result of the reformism of the past decade, morally committed policy experts in fields such as nuclear energy and environmental protection also now constitute an important sector of the bureaucracy, either as appointed officials or representatives of private issue organizations.26 Appealing to substantive rationality and enlightened morality, policy bureaucrats, like judges, justify their governmental role by standards outside the framework of conventional democratic accountability.

Several means of constitutionalizing the bureaucracy have been proposed in recent years. The most traditional, akin to fighting fire with fire, is judicial review of agency actions under standards of substantive rationality or procedural regularity which are intended to ensure correct policies and full participation by interested groups in administrative decision making. Another method is for Congress to impose clear standards of accountability on administrators when it delegates legislative power. The Supreme Court's recent invalidation of the legislative veto may encourage this technique. Still another way to check the bureaucracy is to pass a constitutional amendment for a balanced budget that would restrict big government's source of supply. Meanwhile the bureaucratic solution for the problem of bureaucracy, favored by politicians and especially presidents, is executive reorganization, a time-honored ritual of more symbolic than practical importance.27 At the opposite conceptual pole deregulation, or reliance on market mechanisms, is the neo-laissez-faire approach to the problem.

Public administration scholars are divided in their assessment of bureaucracy. Some accept the basic critique of the administrative state as constitutionally suspect, and argue that it can be legitimated by what may be called training in applied constitutionalism. Acknowledging the discretionary power of administrative agencies, they suggest that restraints can be derived from knowledge of the Constitution as an independent source of political morality. By treating the Constitution as both a source of legal rules and a covenant sanctifying regime values and political processes, administrators can reconcile bureaucracy with constitutionalism.28 A related approach would have public administrators receive training in ethical analysis to guide responsible policy making.29 Without a conscious bias toward democratic values, however, it is difficult to see how ethical training can dispel doubts about the constitutional legitimacy of bureaucratic power.30

While conceding the political force of the attack on bureaucracy, other scholars deny the constitutional infirmity of the administrative state. The charge that the bureaucracy is out of control, they point out, upon closer examination often expresses mere disagreement with an administrative decision, or dissatisfaction that an agency has not followed a congressional directive or allowed the fullest public participation in decision making.31 If by control one means accountability of administrators to elected officials, citizen and interest-group involvement in policy making, and effective implementation of programs, then the bureaucratic state can be shown to operate under a system of flexible controls and in conformance with check-and-balance limitations.32 Moreover, although bureaucratic adherence to existing statutes and legal-rational procedures may appear arbitrary to outsiders, it is consistent with the rule-of-law requirement of constitutionalism.33 A strong argument can be made, finally, that the bureaucratic civil service in its social, economic, and cultural diversity is more representative of the American people than the assembled members of Congress. There is undoubted merit in Norton E. Long's classic statement of the view that modern bureaucracy serves to reinforce the constitutionalizing elements of democratic representation and restraints on legislative and executive power.34

The Constitutional and Bureaucratic Future

Bureaucratic discretion in American government is real, and discretionary power is the bugbear of constitutional order and regularity. But constitutionalism, although it must ever guard against government by mere will and political expediency, requires discretionary power. Schochet puts it well when he observes that constitutionalism propounds a logical paradox: it seeks to place limits on supreme political authority without denying its existence.35 In the United States the bureaucratic state has been adapted to the political culture. It has been democratized, politicized, and fragmented, sometimes at the expense of the general, prospective, and clearly defined rule making that characterizes the rule of law. Yet the rule of law is not the sum and substance of constitutionalism. Since its origins in the late nineteenth century the administrative state has conjured up the vision — approved by supporters and condemned by critics — of unified and concentrated power. To the chagrin of reformers from Woodrow Wilson's time to our own, however, political reality has frustrated this design. Diffusion of authority and reciprocal restraints under the separation of powers have remained the constitutional norm. In all but the formal amendatory sense the administrative state has been constitutionalized as a fourth branch of government, and in its episodic development has adapted to the pluralistic Madisonian principle.

This doesn't mean it is always clear where proper constitutional limits lie or what effective restraints on power are in particular situations. The science of politics seeks to prevent tyranny, and constitutionalism is a method of conducting politics Its operation therefore involves political values and judgments Constitutions establish the general rules to be followed in making specific laws and policies In order to be effective they must be upheld for intrinsic rather than instrumental reasons, at least by some people at some times.36 Constitutionalism as a way of organizing political life paradoxically places these basic rules and principles beyond politics Yet the very circumstances in which constitutions become useful cause constitutional decisions and actions to reflect the conflicting political aspirations, ends, and values that produced controversy in the first place. This makes agreement on constitutional standards and restraints unlikely, although it does not mean they are irrelevant in shaping political action.

M. J. C. Vile has written that because subjective political judgments are involved, discussion of constitutionalism must begin by pointing to examples of societies which are regarded as non-tyrannical.37 Few would deny that the United States has been a constitutional state since its eighteenth-century foundation, or, unless liberals succeed in having the present conservative administration declared unconstitutional, that it continues to be one in the 1980s The United States is also very clearly a bureaucratic state Attacks on the bureaucracy as out of control may question its constitutional legitimacy, but a century of administrative history offers a persuasive rebuttal. Nevertheless, the Constitution is not a living organism, nor constitutionalism a natural development It is a form of political action, and to make it work effectively placing limits on power usually demands more attention than creating or augmenting power From this perspective criticism of discretionary power in the administrative state can have the salubrious effect of reinforcing constitutionalism as the American way of politics.

Powerful as the bureaucratic state has become, it has generally followed public policies determined by the political branches in accordance with public opinion organized and expressed through party competition. It is not certain, however, that this situation will continue In the twentieth century political parties and legislative policy making have grown weaker, while administrative, executive, and judicial institutions have become more powerful In the heyday of the liberal activist presidency, Congress was often the odd man out, its policy preferences frustrated by the other branches Since the election of a conservative president in 1980, this may also be happening to the executive branch If executive policy making in response to public opinion is thwarted by the "permanent government" of courts and bureaucratic agencies, applying standards of substantive rationality and correct morality that are intended to end political debate, a significant constitutional change will have occurred. Do the political branches represent the society and make the basic policies and rules, or do bureaucrats and judges? Constitutional democracy is not direct democracy, but legitimacy derives from consent, and American constitutionalism has always required not only the form but the substance of electoral accountability Perhaps by 1987 we will have a clearer view of the changes in constitutionalism we are presently making.


1 Herman Belz, "New Left Reverberations in the Academy The Antipluralist Critique of Constitutionalism," Review of Politics, Vol. 36 (April 1974), 265-83.

2 Jeremy Rabkin, "The Judiciary in the Administrative State," The Public Interest, No 71 (Spring 1983), 62-84.

3 Giovanni Sartori, "Constitutionalism A Preliminary Discussion," Amen can Political Science Review, Vol. 56 (Dec. 1962), 853-64.

4 Graham Maddox, "A Note on the Meaning of 'Constitution,'" APSR Vol. 76 (Dec. 1982), 805-09.

5 See, for example, Kirk Thompson, "Constitutional Theory and Political Action," Journal of Politics, Vol. 31 (Aug. 1969), 655-81, Sheldon S. Wolin, "Political Theory as a Vocation," APSR, Vol. 63 (Dec. 1969), Henry S. Kariel, Open Systems Arenas for Political Action (Itasca, Ill., 1969) Modified recent expressions of this outlook appear in Robert Dahl, "On Removing Certain Impediments to Democracy in the United States," Political Science Quarterly, Vol. 92 (Spring 1977), 1-20, Lawrence B. Joseph, "Democratic Revisionism Revisited," American Journal of Political Science, Vol. 25 (Feb. 1981), 160-187 John Manley, "Neopluralism A class analysis of Pluralism I and Pluralism II," APSR, Vol. 77 (June 1983), 368-83.

6 Harvey Wheeler,' Constitutionalism," in Fred I. Greenstein and Nelson W. Polsby, eds., Handbook of Political Science Vol. 5 Governmental Institutions and Processes (Reading, Mass , 1975), 76-87.

7 J. Roland Pennock and John W. Chapman, eds., Constitutionalism Nomos Vol. 20 (New York, 1979).

8 Gordon J. Schochet, "Introduction Constitutionalism, Liberalism, and the Study of Politics," Constitutionalism 1-11.

9 George Kateb, "Remarks on the Procedures of Constitutional Democracy," Constitutionalism 215-37.

10 J. Roland Pennock, "Epilogue: Constitutionism," Constitutionalism, 378-83.

11 William F. Harris, II, "Bonding Word and Polity: The Logic of American Constitutionalism," APSR Vol. 76 (March 1982), 34-45.

12 Karl N. Llewellyn, "The Constitution as an Institution," Columbia Law Review, Vol. 34 (Jan. 1934), 1-40.

13 The styles are immanent positivism, transcendent positivism, immanent structuralism, and transcendent structuralism These are similar to the categories developed in John Hart Ely, Democracy and Distrust (Cambridge, 1980), and Philip Bobbitt, Constitutional Fate (New York, 1982).

14 Harris, "Bonding Word and Polity," loc. cit., 43-45.

15 Cf. Martin Spencer, "Rhetorics and Politics," Social Research, Vol. 37 (Winter 1970), 597-623, Sartori, "Constitutionalism," loc. cit., 864, Stuart A Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven, 1974).

16 Dahl, "On Removing Certain Impediments to Democracy in the United States," loc. cit.

17 James L. Sundquist, "The Crisis of Competence in Our National Government," Pol. Sci. Q., Vol. 95 (Summer 1980), 183-208.

18 Pennock, "Epilogue," loc. cit.

19 This is of course the ideal presented in Woodrow Wilson, "The Study of Administration," PSQ Vol. 2 (June 1887), 197-220.

20 Douglas Yates, Bureaucratic Democracy The Search for Democracy and Efficiency in American Government (Cambridge, 1982), 46-47.

21 Martin Shapiro, "On Predicting the Future of Administrative Law," Regulation, Vol. 6 (May-June 1982), 18-25.

22 Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States, second ed.(New York, 1979), Stephen J. Skowronek, Building a New Administrative State The Expansion of National Administrative Capacities, 1877-1920 (New York, 1982), Morton Keller, Affairs of State Public Life in Late Nineteenth Century America (Cambridge, 1977), Richard B. Stewart, "The Reformation of American Administrative Law," Harvard Law Review, Vol. 88 (June 1975), 1669-1813, James Q. Wilson, "The Rise of the Bureaucratic State," The Public Interest, No 41 (Fall 1975), 77-103, Michael T. Hayes, "The Semi-Sovereign Pressure Groups A Critique of Current Theory and an Alternative Typology," Journal of Politics, Vol. 40 (Feb. 1978), 134-61, James O. Freedman, Crisis and Legitimacy The Administrative Process and American Government (New York, 1978).

23 Michael Nelson, "A Short, Ironic History of American National Bureaucracy," JP, Vol. 44 (Aug. 1982), 747-78.

24 Samuel P. Huntington, American Politics The Promise of Disharmony (Cambridge, 1981).

25 A good expression of the legitimacy view is William F. West, "Institutionalizing Rationality in Regulatory Administration," Public Administration Review, Vol. 43 (July-Aug. 1983), 326-34.

26 Hugh Heclo, "Issue Networks and the Executive Establishment," in Anthony King, ed., The New American Political System (Washington, 1978).

27 Cf. James G. March and Johan P. Olson, "Organizing Political Life What Administrative Reorganization Tells Us About Government," APSR, Vol. 77 June 1983), 281-96.

28 John A Rohr, "Public Administration and the Constitutional Bicentennial An Essay on Research," International Journal of Public Administration, Vol. 4 (1982), 349-80, David H. Rosenbloom, "Constitutionalism and Public Bureaucratics," The Bureaucrat, Vol. 11 (Fall 1982), 54-56.

29 Frank Fischer, "Ethical Discourse in Public Administration," Administration and Society, Vol. 15 (May 1983), 5-42.

30 Mark T. Lilla, "Ethos, 'Ethics.' and Public Service," The Public Interest, No 63 (Spring 1981), 3-17.

31 Herbert Kaufman, "Fear of Bureaucracy A Raging Pandemic," Public Admin Rev., Vol. 41 (Jan.-Feb. 1981), 1-9.

32 Yates, Bureaucratic Democracy, 152-55.

33 Kaufman, "Fear of Bureaucracy," loc. cit., 7, Timothy J. O'Neill, "Does the Separation of Powers Violate the Rule of Law?" unpublished manuscript, p. 4.

34 Norton E. Long, "Bureaucracy and Constitutionalism," APSR, Vol. 46 (Sept. 1952), 808-18 Long's thesis has an historical analogue in the argument that the bureaucratic state originated in attempts to preserve individual and group minority rights against majoritarian encroachment See William E. Nelson, The Roots of American Bureaucracy 1830-1900 (Cambridge, 1982).

35 Schochet, "Constitutionalism, Liberalism, and the Study of Politics," loc. cit., 11.

36 Cf. Shirley Letwin, "Law without Law," Policy Review, No 26 (Fall 1983), 7-16.

37 M. J. C. Vile, Constitutionalism and the Separation of Powers (New York, 1967), 308.

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