Oh, how we fret! Rightfully, of course, for nothing is more frightening to the American Mind than the specter of overweening authority. During the second Bush Administration, the Left was beside itself with concern over executive overreach (from the Iraq invasion to the Patriot Act) and now, during the Obama Administration, the Right is beside itself with concerns about usurped power (from the federal minimum wage hike to Immigration amnesty). It is good to highlight the tendency of presidents to overstep their constitutional bounds—but emphasizing it risks ignoring a far deeper and more insidious problem: the immense and pernicious power of Administrative Despotism. While we focus in animated concern upon the head of the snake, we forget the innumerable coils that already surround us.
Alexis de Toqueville, our keenest observer, worried that democracies would fall victim to an “administrative despotism” in which:
[The supreme power] covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided: men are seldom forced by it to act, but they are constantly restrained from acting.[i]
Presidents are often the levers that open the way to a public conciliation with administrative overreach. Two of our most famous – Lincoln and Roosevelt - exemplify this. Lincoln, for his part, is responsible for convincing America that violence was the natural prerogative of the state. Theodore Roosevelt, meanwhile, acquainted America with the concept of a paternalistic and provisionary government. The road to Administrative Despotism was surveyed and graded by two of our brightest historical stars. Our current hand-wringing over presidential extravagance is mere fluff — like wondering what color to paint the road signs.
The first really binding coils of Administrative Despotism were laid, of course, by Lincoln. Yes, Lincoln, the most venerable in our pantheon of secular saints. Lincoln personified Hamiltonian visions of monarchical power. Like Hamilton, Lincoln was a natural aristocrat who, despite his woodsy façade, believed that only the most gifted and experienced were entitled to rule. Jefferson and the Second American Revolution had held Hamiltonian ambition in abeyance, but with Lincoln the coils of the administrative state were wrapped in earnest.
The Lincoln of 1848 who had declared that: “Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government…” was not the same Lincoln who prosecuted a war against “insurrectionary” States in 1861:
I hold that, in contemplation of universal law, and of the Constitution, the union of these States is perpetual….It follows….that no State, upon its own mere motion, can lawfully get out of the Union..and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary…
In the crucible of the Civil War, Lincoln forever cleaved the use of violent force with the central authority. From that moment, voluntary association became an abstract concept instead of a foundational principle. Altering the form and scope of the State thenceforth would be subject to the approval of the State itself.
Theodore Roosevelt, meanwhile, introduced America to the notion of an active, provisionary government. Under his administration, government evolved from a negative institution that prevented things (trespasses between citizens, invasion from without) to a positive institution firmly in the business of doing things. Great big, important, exciting things. Projects that would make any six-year-old boy thrill. To make this a reality, Roosevelt had to lay aside the chafing framework of the Constitution. He was dismissive and genuinely puzzled by courts that showed an obstinate “adherence to outworn, to dead and gone systems of philosophy.”
TR experimented with novel “interpretations” of constitutional power. In 1902, during a coal miner strike, he decided to use federal troops to confiscate mines in order to give strikers the raise they demanded. When members of his own party were outraged, he responded vigorously, implying that the Constitution was a mere formality, that, ”The Constitution was made for the people,” he responded, ”not the people for the Constitution.”
By 1912, in his Progressive Party platform speech (seeking an unprecedented third term), he laid out a vision for an active, provisionary state which supports:
…any form of social justice, whether it be securing proper protection for factory girls against dangerous machinery, for securing proper limitation of hours of labor for women and children in industry, for securing proper living conditions for those who dwell in the thickly crowded regions of our great cities, for helping, so far as legislators can help, all the conditions of work and life for wage-workers in great centers of industry, or for helping by the action both of National and State governments, so far as conditions will permit, the men and women who dwell in the open country to increase their efficiency both in production on their farms and in business arrangements for the marketing of their produce and also to increase the opportunities to give the best possible expressions to their social life.
A government with a participatory interest in so many disparate fields of human affairs was a radical departure from the constitutional one that guaranteed natural rights alone.
Though Lincoln and Roosevelt have made the American Project immeasurably more difficult by desensitizing the electorate to presidential overreach, all is not lost. The American mind is alive to the danger of imperial ambition. We see shadows of kings and specters of emperors over our hallowed horizons, and our hearts recoil.
Notes
[i] Alexis de Tocqueville, Democracy in America, Vol. 2, Part IV, Chapter VI. http://www.gutenberg.org/files/816/816-h/816-h.htm#link2HCH0010
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