R.J. Pestritto: On Progressivism, Liberalism, and the Administrative State
In this edition of The American Mind podcast, host Ryan Williams sits down with Ronald “R.J.” Pestritto, Dean of the Graduate School and Professor of Politics at Hillsdale College, to discuss Progressivism: how it came to be, its theoretical and political impact, and what it means for us today.
Since its arrival on the scene at the turn of the 20th Century, Progressivism has transformed American politics. But one cannot fully appreciate this shift without an understanding of the Founders’ view of human nature, government, and justice—and how the Progressive vision for America seeks to unravel it.
Pestritto also discusses small-l liberalism, a topic very much in vogue today on the Right, and how it came to be dissociated with its original meaning of the protection of rights, which the Founders embraced.
Of course, no discussion of Progressivism is complete without considering the Administrative State. Pestritto and Williams talk about the rise of the bureaucracy in America and what it means for our constitutional order.
Recommended Reading: The German Stamp on Wilson’s Administrative Progressivism
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Pestritto: If you think of most of the major policy controversies, they’ve ended up in court—whether it’s healthcare or the environment. Immigration would be another very obvious example. They’re administrative law cases. They’re a question of, well, has the agency done what the law says? Was it wrong for Congress to give them this discretion in the first place? What posture should the court take toward the decision that the agency made? Should it give it a lot of deference or not? And there are all these obscure doctrines, but they’re becoming increasingly important. Why? Because this is how we’ve chosen to make policy. Congress does nothing these days.”
[Short musical interlude]
Williams: My guest on the show today is Ronald J. Pestritto, known as R.J. to his friends. R.J. is the Dean of the Graduate School, Professor of Politics, and the Charles and Lucia Shipley Chair in the American Constitution at Hillsdale College. He’s a senior fellow of The Claremont Institute. We’re talking out here in California while R.J. is out teaching in our Publius Fellowship.
R. J. has written many excellent studies of progressivism and the figures of progressivism. I recommend everybody’s attention his American progressivism reader. That’s just called American Progressivism and published with his friend and colleague, William Atto. Another book, Woodrow Wilson and the Roots of Modern Liberalism, which is R.J.’s—not his final word—but his take on Wilson’s influence on progressivism and America and modern liberalism; and then the excellent Woodrow Wilson reader, which is just called Woodrow Wilson: The Essential Political Writings.
Today R.J. and I talk a bit about the understanding of human nature, and government, and justice at the founding and how that understanding—both theoretically and practically, and politically—was critiqued by and transformed by progressivism at the turn of the twentieth century. We talk a bit about liberalism as such, that is small l liberalism—the protection of rights is what it originally meant—a topic very much in vogue, especially on the Right today; arguments about liberalism at the founding or our modern, a little more crazy Liberalism and where it went wrong, and how that all transpired; and then we close with some discussion of the administrative state, or the bureaucracy, what to do about it, what it means in law, and how that reflects on the transformation that started at the turn of the twentieth century in America.
Welcome, R.J. Thanks for coming on The American Mind.
I thought if we could today, a big focus of your scholarship for at least the last 20 years or so has been—that’s not a dig at your age, I promise—has been progressivism, its intellectual roots, its antagonism towards the founding. We’re here at our Publius Fellowship, which we conduct every summer to teach 20- to 30-somethings about how they ought to think about American politics and what we ought to do about it to get us back on track, both constitutionally and culturally in many ways. So I thought it’d be a nice exercise to just talk a bit about the roots of progressivism, its antagonism towards the founding, and what that means for us today. So maybe we could just start with kind of a primer on progressivism. How did come about and what was its main intellectual thrust in terms of its opposition to the American founding?
Pestritto: Sure. Well, thanks for having me, first of all.
The Progressive Era comes at a fairly tumultuous time in American history. There’s a lot going on as the end of the nineteenth century turning in to the twentieth, and the progressives, they really thought that government needed to reflect much more than had been the case in their mind for the framers, really needed to reflect the current circumstances. They thought that basically that history had passed the Constitution by, that history had left the founders’ ideas about government well in the past, and that the framers could not have envisioned the present circumstances and, therefore, their understanding of government was not adequate for it.
It was a critique that was much more fundamental than simply saying well, we sort of have to update government because, of course, the framers themselves knew that, and they weren’t naïve about that. There’s an amendment process in the Constitution. There’s constant reference in the documents of the founding to the fact that we learned much through history, that our government was going to benefit from that and that future government in the United States would benefit from that. So the founders understood that very well, but this was something really much more fundamental. It was the idea that the purpose of government itself, what government was about, what constitutes just government—that’s also contingent on circumstance.
So for example, when Jefferson talks about just government in the Declaration of Independence, as Lincoln tells us in his later commentary, he’s speaking not just to that particular time. He’s laying out at its core what government has to be in order to legitimate, in order to be just. It’s got to have the consent of the governed. It has the secure the rights that we have by nature, and that nature’s permanent. It doesn’t change. Now we might come up with different means over time to best achieve these ends, but what government was aiming at in its core didn’t change.
That’s what the Progressives objected to. They said human nature itself is not a fixed thing. It’s something that grows and evolves, and therefore, we need to recast the whole aim of government.
Williams: Right. So that central disagreement is really over the status of nature and especially human nature. Right? Yeah. So for the founders, you know, they weren’t oblivious to the development of human societies, or human cultures, or the changing circumstances of the industrial economy or anything like that, but they did think that the perennial purpose of government was the secure certain rights that were fixed—relatively fixed—in human nature, the rights to, broadly speaking, life, liberty, the pursuit of happiness, the protection of property, and that the constant problem of government that you can never really get rid of was the problem of tyrannical overreach. Right?
Pestritto: Sure. Madison’s comment in the 10th Federalist Paper is about the latent causes of faction being sown in the nature of man, and where the framers acknowledge that there had been progress, and there would continue to be progress, was in science, and the science of politics in particular is what Hamilton refers to in the 9th Federalist Paper. So science gets better. We know more. For the progressives, that meant government is really contingent on science, that science is really the authority because we know more. Because we know more about the means of government, that necessitated a change in the fundamentals.
Whereas the way the framers put it is human nature itself doesn’t change. You still have the same basic truths, which present the same basic problem that our reason and our passion are at war with one another, and we want to elicit as much of the reason as we can, and suppress as much of the passion as we can. That’s not going to change. We’ve learned more about how we might do something about that problem, but the problem itself doesn’t go away.
For the progressives, that’s what was really the issue because as long as one maintained that human nature was prone to bias, to self-interest, to factiousness, to one part ruling for its own sake as opposed to for the common good—as long as that truth was there, then government was never going to be opened up, was never going to be fully liberated. Its power was never going to be what the progressives wanted it to be They were never going to get the policies that they wanted to enact if we maintained that sort of core sobriety about human nature, and that’s where they really took issue with the framers’ principles.
Williams: Yes, and we’ll give them their full due, even though we disagree with it. I mean, their view was, look, human nature is not fixed. It evolves with historical change, and really the only way we can continue to improve our society and even get close to perfecting it is we just have to allow government to do a lot more, right? The unlimited government is really in service of the continuing pursuit of justice, under their understanding. Now we disagree with them, of course, on what human beings are and why tyranny remains a threat, but that’s their core critique, right?
Pestritto: Yes, I think you’re right about that. It’s one of the reasons, of course, why all of the, sort of, social sciences as we know them today have their origins, more or less, at this time. The idea is now with science where it is, look what we can do, look what we know how to do, and this is an opportunity essentially.
Williams: Yes. Our friend, John Marini, who also teaches in this program, of course—I think it’s his original line—is that the modern university and really the social sciences are the applied sciences of the administrative state or the modern bureaucratic state, as we know it.
Pestritto: Yes, that’s right. I haven’t heard him put it that way, but that’s a good way of putting it.
Williams: That’s pretty good. So just for our listeners who aren’t as acquainted with the run of American political history—so we have the Civil War that wraps up in the middle of the 1860s, and then we have—when does the progressive movement, both intellectually and then politically, sort of start going?
Pestritto: Yes, historians like to talk with greater precision about dates that we political theorists, of course. We always tend to talk about progressivism as, you know, what are the core principles because we think, you know, you actually can find some of these principles as operative today as they were during the original time. But in terms of the Progressive Era, typically you’re talking the 1880s, you know, in through the First World War and shortly thereafter.
In the nineteenth century you have a couple of things going on. One is the rise, sort of, philosophically, both in Europe and then here, of historical thinking, of the philosophy of history, this idea that historical change, historical evolution is to have kind of the dominant place in talking about politics and lots of other things in human life. Sometimes this is bound up in the language of the Darwinian revolution because you have that concept of evolution, but that idea of evolution is going on long before Darwin. of course.
Williams: Right. The social scientists like to bring that new understanding of natural science to apply to constitutional things or human government, right?
Pestritto: Yes, exactly. From this sort of catchall label of “Darwinism” come all kinds of evolutionary concepts applied to political life.
So you have also going on in the nineteenth century this really significant in education, higher education especially, in the United States, where if you wanted an advanced degree, you typically went to Europe to get it and often you went to Germany to get it. So the universities are transformed as a result of this. In order to be prestigious you went and got yourself people who’d been educated at these places in Europe, and so very orthodox places in America came to be populated with folks who’d been educated in this historical way of thinking.
All of this sort of contributed to the air and the water as the nineteenth century is coming to a close. Then you have all the circumstances of urbanization and immigration and circumstances in the country really undergoing some pretty significant transformation at that time. That’s sort of the recipe for now you’ve got these new ideas and the intellectuals have been at work. Progressivism really shows how—it shows that Aristotle was right, ultimately, that the most important thing is the regime or the ideas that are there at the top, and those things then filter down gradually. That’s what happened with progressivism.
Williams: Yes. A determined—and you know, give them a lot of their due because they’re no dumb people—a determine and intelligent elite can change the course of a country even as large as the United States, right?
Pestritto: Yes, and quite consciously, by the way. As you mentioned, these are well-educated men and women. They actually understand pretty well the argument of the framers. They understand the political philosophy that the framers drew on. I mean, they get some things here or there not quite right, of course, but basically they’re well-read in that, and this is why when—if you read the major progressive works—almost all of them begin with some summary of the Constitution, of the Declaration, of social compact, of Lockeanism. They know this stuff, and they’re conscious about arguing for a departure from it, and it’s very intellectually honest in ways that, I think, subsequent versions—subsequent waves of liberalism, as Charles Kessler would call them—aren’t quite so honest. With the progressives you have a very forthright acknowledgment that, look, this was what they thought, this was their conception of nature, this was their conception of liberty. It was either wrong or it was limited in application only, or should have been limited in application only, to their own time. So it’s very straightforward. That may be one of the reasons why it wasn’t as politically attractive. Although it was in certain quarters, as the New Deal, say, later was.
Williams: This is kind of a footnote for clarification purposes. Talk about two things at least. You mention the philosophy of history, and I think we should clarify this for people. It’s a great source of confusion, I think, the way we think about history and truth and the way the progressives did. Let me give just a quick sketch and get your comment on it.
So by philosophy of history—I don’t want to get us too far in to the weeds of the history of political philosophy, but Hegel, of course, a famous German, is writing in the middle of the nineteenth century, and he says, “Look, up until now, history has been a series of events, sometimes in antagonism with one another and it’s always kind of spinning in a progressive direction in the sense that it’s moving towards something more perfect or more in line with human flourishing; and I, Hegel, now stand kind of at the end of that process, so I can evaluate the rest of it.” So that’s what we mean by the philosophy of history, right? I mean Hegel thinks he stands at the end of history, not in the sense the end of time, but really finally getting to the pinnacle of humans and how they can govern themselves. That’s what the progressives buy in to in many ways. Right?
Pestritto: Yes, I think that’s a good clarification. I would even go back and make one other distinction and clarification because in the nineteenth century, I think, as I said in the air and the water you have historical thinking, and it comes in a couple of different strains.
One strain is just the basic historical school that kind of comes out of England and Germany where the argument is basically for evolution in a sort of random way, for historical contingency where we would just say simply history brings about changes, and government adapts to those changes. So you’re talking about people as far back as Edmund Burke. People like the great English writer, Walter Bagehot, says, hey, the English constitution is kind of based on this historical school, the idea that there’s no permanent written constitution in England. It’s just sort of a kind of gradual, slow evolution and response to historical circumstance.
That’s one version of historical thinking. The other version is the version that you described: the Hegelian version, which—
Williams: More rationalistic, in a way. Yes.
Pestritto: Yes. It’s not just about, “Hey, history randomly changes and we should randomly change government in accord with it.” It’s, “Yes, it’s changing because there’s a purpose to it.” There’s a beginning and there’s an end, and it’s culminating; and there’s this ideal end-state, and it will be rationally ordered. That’s the more idealistic version of it, and I think what distinguishes the progressives from others at this time is they buy in, not only, to the general historical thinking that had been around for all the nineteenth century but in that more idealistic ordering of it. That’s why they loved to push this new theory of administration, for example, because they thought, “Well, now government can be rationally ordered, and history has taken some time to bring us to this point. We need to take advantage of that.”
Williams: Yes, again to cite our friend, John Marini—it’s Hegel’s term really—he was just on Mark Levin’s T.V. show, and he talked about the rational state, and I think a lot of people are confused about what this means; but for progressives drawing on Hegel it just means that we’re finally at the place where we can have neutral bureaucrats with the common good in mind only, not their personal good, doing the scientific business of government, which for them is really making people happier, more comfortable, and more free in a way.
Pestritto: Yes. One of the reasons why government had to be limited in its scope and in that kind of management that you described during the Founding Era was history hadn’t developed us yet to a point where we had enough science, where reason had finally come in to its own; and so it might have made sense at that time for government to keep itself out of that kind of detail. This is why you, sort of, have to assume the progress of history if you’re going to understand the progressives. The argument is now history has brought understanding to a much higher level and so now government can rationally order things in a way that previously, in earlier stages of history, had not been able to do. Now we can take the restraints off. Now you have certain constitutional principles, and separation of powers and all of that doesn’t need to limit what we can do through the management of experts.
Williams: And frankly, yes, if it does limit it, it just keeps us from doing better work and bringing more happiness and prosperity to people. So why would you be against that?
Williams: So the argument goes.
Then the last clarifying point is just I think it’s illustrative for people. You teach it every year, and we know it well here at Claremont, but it’s worth running through really quickly. You talked about Darwin. So there’s the Hegelian influence, the influence from Hegel, and then there’s also this evolution in natural science, pardon the pun, but Darwin starts talking about the evolution of the species, and this really diffuses in to society and in to the intellectual classes about how they think about all this; and Woodrow Wilson, of course, famously—you can tell me when exactly he wrote this. I think it’s in the 1880s, right? He says in a paper called “The Study of Administration,” he says, well, the founders, they had a Newtonian system of government. It’s like an orrery where the planets are all rotating around each other in a perfect equipoise, and the separation of powers lets one check the other, and it’s this beautiful Newtonian balance; and that’s how we protect liberty and ensure good government. He said, but now of course, we’re in the age of Darwin, so government needs to be organic, not mechanical. That’s another rhetorical way he uses to try to convince people that this new way of doing things is in line with science really and, therefore, valid.
Pestritto: Yes. That’s one of the more well-known ways Wilson has of expressing—it actually comes a little later. It’s actually 1912. That’s a metaphor he uses on the campaign trail in 1912. If you can imagine—the language you’re using is drawn from his book The New Freedom, which is simply an edited collection of his campaign addresses. So if you can imagine a candidate saying this on the campaign trail in 1912, the idea that the founders—he said they took Montesquieu, this French political philosopher who talked about separation of powers, they took him a little too seriously. They read him with true scientific enthusiasm, I think is the phrase that Wilson uses in 1912. So they had this sort of very fixed and mechanical view of things, but no, government’s organic. We progressives want to interpret the Constitution according to Darwin.
What he means by that because we know today that debates about the Constitution, political debates today, there are those of us who would argue for a more original understanding in one way or another. There would be others who would say no, we need to interpret the Constitution as a living document. That’s where that language comes from. It comes from the progressives and understanding government as a kind of organic thing.
The interesting phrase from the essay that you referred to in “The Study of Administration” is where he’s trying to basically take German administrative model—he wants to basically take the Prussian idea of administration and bring it in to the American Constitution. So the phrase he uses there, he’s trying to explain how one can take essentially a monarchic administrative model and kind of lop it on to a republican constitution. He says, “If I see a murderous fellow sharpening a knife cleverly, I can imitate his way of knife sharpening without also borrowing his probable intention to commit murder with it.” That’s back in the 1880s in “The Study of Administration.”
Williams: That’s right. I’ve jumbled them all together. Thanks for the correction.
So I thought now we’d move on to this question of liberalism, which is on the Right, in conservative circles—well, maybe mostly at the public prints level or the talking heads level and then also in the academy—this question is in vogue. The question is: why is insane, modern Liberalism—and insane in the sense of its newest iteration with identity politics and the sort of endless divide-and-conquer strategy where you have hierarchies of oppression, and victim groups, and this pursuit of equality for endless identities, be they sexual, or racial, or whatever else. Someone like a Patrick Deneen, who’s written a book on this lately—and others, not just Deneen—he teaches at Notre Dame. He would say look, this was all baked in the cake in the founding. The radical individualism based on John Locke’s political philosophy just before the founding was kind of the poisoned pill. Eventually we would get radical, untrammeled, runaway equality, and so we shouldn’t be surprised now that modern Liberalism has gone kind of crazy.
I want to just talk a little bit about the—I know you’ve written on this and are going to write about it—this question of the liberalism of the founding. We mean small l liberalism that is the protection of rights, and then the Liberalism of progressivism. So with that very broad prompt—we’ll start with the liberalism of the founding maybe.
Pestritto: Well, I think a good place to start in response to your question is to say, well, where do conservatives tend to agree on these questions? What they agree with is things have gone to hell somewhere in America. Modern Liberalism is a problem in ways that most conservatives agree with one another on. Where they disagree is well, where did the problem start? And so those of us associated with The Claremont Institute, one of the things that we point to as a fundamental source of the change is the Progressive Era, that you’ve got the original principles and that progressivism is this sort of rejection of those principles. So we tend to ground the problems of modern Liberalism in the Progressive Era.
But quite correctly, there are some conservatives who want to point back further in the American tradition. This isn’t something that was smuggled in. This was something that was there either earlier, or maybe even from the beginning. So we know there are some conservatives who say you’ve got to go back a little farther. It’s actually Lincoln who changed things. So then there’s that whole debate, with paleocons or the libertarian paleocons—
Williams: The argument being Lincoln inaugurated big government as we know it, and now it’s out of control.
Pestritto: Exactly. We can get in to that if you wish. That’s one argument one commonly sees among conservatives, but as you suggested in your question, there’s a chunk of conservatism that finds fault with the founding itself. What you have in Deneen, or others in that orbit, is really nothing new in the conservative movement. The conservative intellectual movement is always—there’s been a big part of it that’s always been quite uncomfortable with the founding, and so the argument there is that really this is not a change, it’s not a move away from the founding. It is, in fact, a culmination of dangerous principles that were, as you put it, baked in from the beginning. There’s a very robust debate about this now.
The one point I always like to ask people to think about in this—to sort of deal with it relatively briefly—is to say if that’s true, if it’s true that the progressives and modern liberals were simply continuing on what had been laid down before, that’s not how the progressives understood themselves. They know, as we discussed earlier here, they know they’re turning away from the founding. They say they’re turning away from the founding, and so the argument as I understand it from Deneen and others is not only that we misunderstand the progressives, but that the progressives misunderstand the progressives, that the critics here understand the progressives better than they understood themselves. I’ve never seen a satisfactory treatment of that problem. How do you deal with what the progressives themselves thought they were doing?
Williams: Yes, and just as a quick side note—the other irony in a way, and Deneen knows this, of course—if you took our modern obsessions with sexual and gender liberationism on the Left and brought them back to someone like a Woodrow Wilson, an arch moralist in many ways—
Williams: —the progressives themselves, whatever they think of the founding, would have disavowed completely where we’ve come, I think, in this kind of mad dash to equalize everything and to make sexual identity and everything else the source of all we should care about as a matter of justice.
Pestritto: No, that’s quite correct. So it raises the interesting question of what the relationship is between progressive liberalism and later waves. That’s actually an interesting debate. Although the one thing you’ve got in progressivism that you can say—even if the progressives themselves would have been aghast at what liberalism has become—once you abandon nature—and that was a big part of the progressive project, this foundation of government on nature. That was the problem for them, and we had to get over that. Now they’re talking about it in the way that 60s, and post-60s liberals, and contemporary liberals are talking about it, but once you remove government from its mooring in nature, get away from Madison’s claim that government is just the greatest of all reflections of it, then you open yourself up to this sort of thing. Even if it doesn’t resemble progressivism, the foundations are laid in progressivism, and that’s why many of us here associated with The Claremont Institute would really point to the progressives as this is the great turning point.
Williams: Yes, so severing the connection between human nature, and the ends of government, and the outlines of justice really just opens the door for any manner—I mean the modern Liberal would say perhaps back to an objecting Wilson, if we can talk in such an anachronistic way, but it’s interesting, “Well, look, at your time, at the time of progressivism, you didn’t know about the core importance of sexual identity and its role in human flourishing and the full-blossoming of human freedom. If you stood where we stand, you would agree with sort of modern tack of modern Liberalism to embrace this identity politics.”
Pestritto: Yes, I think you could draw continuities that way.
Williams: Good. Well, I wanted to talk a little bit to sort of bring us up to today. Famously during the—or I think it was right after the election or perhaps it was CPAC during the campaign or CPAC right after. I forget. It doesn’t really matter, but Steve Bannon famously said, “One of our projects in the Trump Administration is to dismantle the administrative state.” Now the “administrative state” is kind of a technical term for our modern bureaucracy, especially I think the portion of it that’s insulated from presidential control, that makes lots of rules and rules our lives in many ways, economic and social. It’s really an outgrowth of the progressive argument that we ought to have insulated experts doing the business of government day to day. Why is that so important for us today, or how does it factor in to both our arguments in the courts and the trajectory of our disputes about politics on right and left?
Pestritto: Well, what’s happened today is there’s finally been light shed on this concept of the administrative state that’s been in development, as you mentioned, for a long time now because what you see playing out in contemporary politics is a defiance of the will of the electorate. That is to say it’s a sort of pushback of the administrative state. This has kind of been obscured a little bit by this term “deep state,” which I think is related but not exactly the same thing—
Williams: It’s a politically useful term, of course.
Pestritto: It is, of course, because it sounds like this is some sort of evil conspiracy; but in fact, what it is is just something that been growing slowly over decades and decades in American government coming out of the Progressive Era, which is that they were—one might see a sort of irony in the core of progressive thought because on the one hand you have this very democratic veneer, the idea that the framers distrusted the people, they were sober about human nature, they put too many limits on government. We want to democratize things. So that’s going on at one level, but at the same time, of course, most power under the progressive vision of things is moved out these democratized political institutions all together and in to the realm of experts, so people who govern not on the basis of consent, but people who govern on the authority of science or the authority of what they claim to know. So it changes the very foundation of government, and this is why the progressives talked about the need to separate politics and administration and to keep politics itself, the mechanism of consent, out of the way of administration.
You see this in lots of forms today, as you said, mostly in the parts of the bureaucracy where you have great limits on presidential control, but really in the other part as well. The idea is that electoral politics really ought to be kept from sort of polluting the noble objective work, the sort of scientific work of administrators. So we really shouldn’t let public health matters or environmental matters come in to the realm of these lowly people and Congress, who after all are only elected by us. But the authority here is really higher than that. It’s people who know better. So there’s a great deal of conflict today because you finally have a sort of recognition in parts of the electorate that this part of the government has gotten beyond their control.
Williams: Right. Yes, in a way, the argument from the modern progressives, who are defenders of the administrative state, if I can put it in so pad a fashion, would be, “Well, why should science be up for a vote?” Whereas I think our contention in a way would be, “Well, look, I mean we can know certain things scientifically, of course, but the real business of government is making judgments about how to apply whatever knowledge we have about human things to a populace that we’re governing.” So from the founding point of view, you can not sever a government by consent because the ultimate sovereignty is in the people, and it’s not as if we can’t have experts who administer government, but a complete insulation from any popular control, however scientific it may be, is somehow proto-tyrannical.
Pestritto: Yes. The goal of the Left is basically to take large parts of government and to get them run in accord with their ideology and immunize that from any popular input. That’s what the environmental movement is about in my opinion, for example. It’s not really a question of what the science is exactly, right? To amplify the point that you made, even if one were to accept for the sake of argument the science that the environmentalists want to push on us, and I won’t wade in to that—if you just say let’s accept it for the sake of argument, okay, the political question then is well, what does one do about that, right? If you know, for instance, that greater restrictions will lead to be better public health, okay, that’s one thing, let’s say; but you also know that it’s going to lead economic pain on the other. So how you weigh these two things, economic prosperity versus sort of cleaner air, I suppose, well, people are of different views on this, and that’s why you have government based on consent. The goal of the Left in this case is essentially to take the science—once you see that there’s this fact—for that then to close off all debate and empower them to run government as they will.
Williams: And the other thing that’s grown up around it—I think people intuitively understand it when they see how dysfunctional our modern Congress is in a way. This balancing act that is the core of politics in many ways—balancing good policy, or what we ought to do, or what needs to be done with the costs of what needs to be done, and then adjudicating the fact that we’re a country of over 300 million people now with different geographical interests. The hotbed of that deliberation was Congress for the better part of a couple of centuries, in a way, but as our modern Congress, I think especially in the last 40 years probably, has shifted a lot of these hard questions to this insulated class of bureaucrats—Congress, they don’t talk about these things very much any more. They’re not in the business of deliberating about these things because they’ve been happy to cede it to the bureaucracy.
Pestritto: Yes, I mean Congress in a way doesn’t want to wade in to debates that might jeopardize the jobs of members of Congress. So the game, how it’s played here is, members of Congress want to get credit for voting for nice, sort of platitudinous, vague sentiments, right? So—
Williams: Clean air, safe work places—
Pestritto: Clean air, safe work places, affordable healthcare for everybody—who is opposed to any of these things, right? So you want the voter to cast his or her choice on the basis of that—“Oh, this guy’s for clean air. Well, I like that.” But when one has to actually do the hard choosing—which is required to bring those things in to fruition—so when I have decide between the coal industry and a certain level of emissions or what have you and someone’s going to lose their job, well, then, that’s harder. Or just to give the Obamacare example. Well, we want affordable healthcare, so we’re going to put price controls in. Well, in inevitable economic laws, you’re going to get rationing. So you want to vote for the price controls, but you don’t want to do the rationing, the choosing. So this is real legislating. You give that to the bureaucrats, so you can in a way distance yourself as a member of Congress from those hard choices. Then, to sort of put the final point on it, when there’s public outrage you haul the poor bureaucrat before your congressional committee and the television cameras and berate him or her because of these terrible things that they’ve had to do precisely because you’ve given them the power to do it and have left this choice in their hands. So it almost makes one feel sorry for bureaucrats.
Williams: [Laughs] Yes, they’re always left holding the bag in a way.
We talked just a little bit—we can finish on this topic—about what this has meant for administrative law, which sounds like a very esoteric topic, but we’re talking here in the beginning of July right after the Supreme Court has wrapped up. A lot of this fight, or a portion of this fight is going on in the courts, and a few doctrines have grown up alongside modern progressivism. I wonder if you’d talk about those.
Pestritto: Sure. The result of this kind of way of making policy that we’ve just talked about—you saw it a lot in the Obama Administration and now you see it in the Trump Administration—is that policies are made by executive agencies, by the executive branch, by the executive agencies. Congress has punted that authority off. Well, then the side that doesn’t like what the agency does is going to fight it, and they’re going to fight it typically in court nowadays. And so it becomes really really important what the doctrines of administrative law are.
In administrative law, which sounds awful—it’s a course I teach regularly, and you don’t get a lot of students because it scares people away, but then you realize how important it is. What it simply means is when you go to court and you challenge what an agency has done with the discretion that Congress has given to it, how do courts treat those kinds of appeals? If you think of most of the major policy controversies over this administration and the previous one, they’ve ended up in court—whether it’s healthcare or the environment—and the major cases—
Williams: Or immigration.
Pestritto: Oh, I’m sorry. Immigration would be another very obvious example. Thank you. They’re administrative law cases. They’re a question of, well, has the agency done what the law says? Was it wrong for Congress to give them this discretion in the first place? What posture should the court take toward the decision that the agency made? Should it give it a lot of deference or not? And there are all these obscure doctrines, which now you’re like Chevron deference and Auer deference and these other sort of inside baseball kinds of things, but they’re becoming increasingly important. Why? Because this is how we’ve chosen to make policy. Congress does nothing these days, so it’s fought out in the courts.
Williams: I wanted to bring up—I think there are a couple popular phrases used by politicians that illustrate the pervasiveness of the way progressivism has shaped the way we think about politics, you know, on any contentious issue. Obama loved to do this, but he’s not the only culprit. We do it on the Right, as well, in popular politics in the last few decades is to say, “Well, studies show X, Y, or Z, and thus this is why we ought to do this as a matter government.” That’s kind of an insane way of talking that would have been very foreign to the founders, who were much more familiar with, at least in public reasoning, a sort of commonsensical moral reasoning and then just arguments over policy. But the trump card in our modern discourse is, “Well, do you have a study to prove that?” Otherwise you’re not legitimate in public discourse.
Pestritto: Yes, so science has become fully authoritative in the example that you cite. The other common phrase, and this is what I thought you were going to bring up initially, is, “History has sort of passed us by”—
Williams: Yes, “the right side of history.”
Pestritto: Yes, “get with the right side of history” or what have you. You have both, right, the historical argument there, the sort of progressive argument, and then the deference to the authority of science.
Williams: Yes, and from a founding perspective, we learn from experience and we have the good fortune—you know, Madison spent a bunch of time studying the failures of ancient and medieval republics in order to prepare for the Constitutional Convention—so it’s not like we can’t learn from history, but I think the founders certainly would have thought, you know, you can always devolve in history. There’s no right side of history that you’re inevitably on the right side of. I mean things can always go to hell if you stop attending to these problems of tyrannical government, or the balance between reason and passion, or any of these things.
Pestritto: Yes. They wouldn’t have agreed that history is some force that can’t be controlled by human choice. That’s the great argument of the nineteenth-century historical thinkers, the idealists, the Hegels and others—that in a way, we’re all just pawns on the stage of history, and why do you argue? Think about the Federalist Papers. They’re saying, “Hey, we have a choice here. We’re going to establish our government based on reflection and choice, not on the basis of historical accident.” So we’re going to make arguments here. We’re going to deliberate, and we could make the wrong choice. It’s not like whatever we do, it doesn’t matter, it’s just fated. No, we could make the wrong choice.
Statesmanship—not do right principles matter, but the prudence of statesmen, having the right people in place—this is a point that the great writer, Alexis de Tocqueville, makes about the success of America. He says, “Well, why did this work here, this experiment? Well, lots of reasons. You had good laws, and you had good people, but you also had the good fortune to have these really prudent individuals in place.” Or you take a look at the great conflict in the Second World War. You know, it matters that Winston Churchill is at the helm in Britain making the choices that he’s making. Hitler could have won. History is not going to guarantee the nice result. So the founders never would have conceded that kind of power to history. They learned a lot from history, of course. Their writings are full of examples, ancient and contemporary and reliance on those examples, but you would never cede that kind of power to fate.
Williams: And just a last point that we should bring up—it’s interesting there’s been a kind of retrofitting in a way of the administrative state from the Left. You see it in some law review articles and elsewhere, which is to almost, at least, implicitly concede the point that okay, maybe these insulated bureaucrats are undemocratic, and that’s bad; but if you actually look at the way it all works—they have notice and comment, the public can comment on their rules—and then you have this dysfunctional Congress. I’ve seen this argument—and I wonder if you’d just have a quick comment on it—where it’s well, actually the administrative state in the way it does rule-making is more democratic than the modern Congress because it’s open to public comment and it’s run by the civil service. I wonder what you make of it. I think we both think it’s kind of ridiculous, but—
Pestritto: There’s a kernel of truth to that in so far as the dysfunction in Congress—
Williams: Is real. [Laughs]
Pestritto: —is real and opens itself up to that kind of argument. Now the idea, somehow, that the process of the Administrative Procedure Act and notice and comment rule-making and all of that is somehow, in any way, remotely able to replace the authority of consent through the ordinary political institutions is absurd, especially for anybody who knows anything about how that actually works. Agencies now have figured out exactly how to check all the boxes and to go through all the procedures. They’re very good at that. Most agencies are staffed by a preponderance of lawyers, by the way, for this very reason. So they know how to check all these boxes, and dot all their Is, and cross all their Ts, and give the appearance of a kind of public input; but in fact, the agency does what the agency wants to do and the only people who really influence those agencies in any significant way are the very well-heeled, really big corporate interests that the progressives themselves thought they were trying to get out of politics; but in fact, the big entities know how to game the system, they know how to play the system very well. So the idea that that’s somehow a replacement for the consent of the average voter is preposterous.
Williams: Yes, and of course, the easy data point for it is that large corporate capitalism—these large corporations—have their own team of lawyers who do nothing but focus on the administrative procedure process, and game it to their advantage where they can, and then work around it where they think they can.
Pestritto: Yes. What it is is basically a barrier against competition of the smaller competitor.
Williams: Well, thank you R.J. This is the beginning of this conversation, and I hope we’ll have many more, but thanks for joining us.
Pestritto: Yes, I hope so too. Thank you for having me.
This year, the Supreme Court will have several chances to reevaluate the deference it has historically given the administrative state. The Center for Constitutional Jurisprudence is taking a particular interest in this fight to rein in the excesses of unaccountable agencies and help restore constitutional government.
In this town hall, Dr. John C. Eastman, Founding Director of the Claremont Institute's Center for Constitutional Jurisprudence, takes a look at the oral arguments from two of the Supreme Court's recent cases—Friedrichs v. California Teachers Association and Sturgeon v. Frost.