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
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.
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 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
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
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
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 fašade,
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
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
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
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
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
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
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
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
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
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,"
10 J. Roland Pennock, "Epilogue: Constitutionism,"
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,
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
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
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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