Debating the American State: Liberal Anxieties and the New Leviathan, 193-197

Debating the American State

Debating the American State

Liberal Anxieties and the New Leviathan, 1930–1970

Anne M. Kornhauser

Copyright © 2015 University of Pennsylvania Press

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Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

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University of Pennsylvania Press

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Printed in the United States of America

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Library of Congress Cataloging-in-Publication Data

Kornhauser, Anne M.

Debating the American state : liberal anxieties and the new leviathan, 1930–1970 / Anne M. Kornhauser. — 1st ed.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-8122-4687-2 (hardcover : alk. paper)

1. Liberalism—United States—History—20th century. 2. United States—Politics and government—20th century. I. Title.

JC574.2.U6K67    2015

320.97301—dc23

2014029611

In memory of my parents

Ruth Rosner Kornhauser and William Kornhauser

Contents

Introduction

Chapter 1. Leviathan and Its Discontents

Chapter 2. Democracy and Accountability in the Administrative State

Chapter 3. The Rule of Law When the State Goes to War

Chapter 4. Liberal Democracy Conducts an Occupation and a War Crimes Tribunal

Chapter 5. Individual Autonomy and the Modern American State: The Philosophy of John Rawls

Epilogue

Notes

Index

Acknowledgments

Introduction

The New Deal era left behind a host of political, institutional, and economic legacies. Among the most familiar are the realignment of the two major parties into a liberal Democratic Party and a conservative Republican Party, a compensatory social services regime, and a commitment to use fiscal and monetary policy to manipulate the economy. Just as important, but less often recognized, the New Deal bequeathed to the United States a new type of state: the administrative state.¹ New Dealers took the administrative seeds planted over the previous several decades of state building and nourished them into a full-blown bureaucratic machine, a leviathan, as it was often called.

The frequent references to the biblical sea monster Leviathan during the thirties and forties are telling. They traversed the political field and were rarely pejorative.² The term was first given political valence by the seventeenth-century English philosopher Thomas Hobbes to symbolize the concentrated power of a centralized state. Similarly, the mid-twentieth-century invocation of a leviathan indicated that it was not only the size and scope of the state that was changing. How the nation was being governed and the way that governance was justified were also undergoing a transformation, one that raised uncomfortable questions even among the state’s most ardent supporters.³ The leviathan evoked the newly formed state’s centralized, hierarchical power, its unpredictability, and its multidimensionality, arms and legs flailing about at cross-purposes. Helmed by an unprecedentedly strong executive and managed by a large class of unelected officials armed with broad discretionary powers, the administrative state added a substantial layer of federal institutions—boards, agencies, and other administrative entities. Equally important, it fundamentally altered the conduct of governance. The administrative state privileged the specialized expertise of unelected officials and command and control decision making over democratic deliberation and popular political participation, ad hoc rule making over statutory and judge-made law, and executive power over legislative authority.⁴ It also generated a technocratic rationale to justify its existence, an administrative ideology, which formed the core of the statist liberalism that underlay the New Deal.⁵

As a result of the crisis conditions in which it grew up and the internal contradictions of pouring the new wine of national bureaucracy into the old skin of constitutional democracy, the administrative state was from the outset beset by concerns about its legitimacy. This book is about those concerns and the intellectuals who first expressed them most thoughtfully and dispassionately: liberals themselves. Focusing on a group of sympathetic but critical intellectuals, it explores the little-discussed but tangible discomfort on the part of liberal thinkers with the very state conceived and built in their name.⁶ Although often masked by the rapid pace of reform and emergency politics, the core debates over the modern American state can be discerned in the writings of a wide-ranging cast of liberal-minded intellectuals in the middle decades of the twentieth century. These American social scientists, German émigré legal academics, and the philosopher John Rawls were sympathetic to the New Deal’s statist liberal project but troubled by some of its political, legal, and ethical ramifications. These included an increasing reliance on extralegal measures and non-representative, undemocratic political institutions, and the turn away from ethical principles to justify state action.

These critical liberal thinkers reveal the complexity of the conceptual and political struggles within modern American liberalism, in particular liberals’ tentative relationship with their own state. Liberalism, they showed, failed to come to terms with the implications of bureaucratic governance and, as a result, to produce a principled legitimating theory for the administrative state.⁷ The legacy of these failures manifested itself in subsequent decades and obtains to this day: the defining of American liberalism as a political ideology that either defends the administrative state uncritically or concerns itself with problems at the state’s margins, at the expense of higher-stakes arguments over fundamental institutional change and the costs of a large public bureaucracy.⁸ The problems identified by these sympathetic critics can help us understand both why American, and indeed Western, political institutions have come to be regarded with increasing distrust and why statist liberalism has remained a tentative and defensive public philosophy.⁹ Recurring questions about the legitimacy of national political institutions cannot be reduced to a backlash from the left or the right, at this moment or that. Instead, since the 1930s, American statist liberalism has rested on shaky conceptual and political foundations, and the reasons for this are internal to liberalism as much as they are the result of external forces.

It is not generally recognized that the major tensions within the statist liberal project were identified from its birth and by its supporters. Rather, we have come to associate critiques of bureaucracy and condemnations of big government with conservatism or radical activists of the 1960s. However, the interventionist state from the outset has produced critics from across the political landscape. The more moderate but critical voices at issue here have tended to be drowned out by a discourse about the American state that has become increasingly bipolar: liberalism and the Democratic Party as defenders of a bureaucratized, interventionist state versus conservatism and the Republican Party as the guardians of freedom and law against the encroaching bureaucracy. This discourse has obscured the fact that the leviathan state, born in crisis and raised by technocrats, was never endowed with a principled rationale by the liberals who supported it.¹⁰ The lack of such a rationale and the emergency conditions that attended the state’s consolidation strained the state’s claims to legitimacy and fed the tensions within statist liberalism identified by its sympathetic critics.¹¹

This is not a story about liberal antistatism, however. Nor is it one about the success of statist liberalism in overcoming objections to the new mode of governance ushered in by the New Deal.¹² The first has been exaggerated, while the second never occurred. The battle over good or bad, big or small started and ended with the New Deal. Bureaucracy was here to stay—the question was on what and whose terms.¹³ A statist liberalism continued to prevail even in the face of an increasingly totalitarian threat. The national security state, organized administratively, was not an exception to but an extension of the New Deal state, directed, to be sure, toward very different ends.

The statist liberalism with which the sympathetic critics grappled embraced a centralized interventionist state whose main domestic functions were regulatory and compensatory. It generally abided as well a more repressive national security state, which was prefigured in World War II and fully developed during the immediate postwar years. Indeed, the national security state ought not to be seen as the apotheosis of the administrative state. Executive government, extralegal political activity, and a distrust of the democratic process are not one thing when the state engages in domestic policy and another when it turns to foreign matters, whether at home or abroad.¹⁴ Along with their acceptance of state power, statist liberals also embraced, to varying degrees, a concept of democracy—usually based on pluralistic bargaining—and a concept of law as a means of protecting individual rights and autonomy. However, the rub for statist liberalism was that, depending on how they are institutionalized and the precedence they are given when compared to the expediency of administrative and executive action, democracy and legality may be compromised in a bureaucratic state, especially under emergency rule. Views of liberalism as individualist or proceduralist often downplay these tensions or relegate them to one area of governance, such as national security. Here the concept of statist liberalism acknowledges modern liberalism’s admiration for state power in various forms, even as the uses of that power changed over time and undermined many of the policies and priorities of the early New Deal.¹⁵

Sympathetic critics of statist liberalism evinced three distinct but overlapping tensions that characterized liberal apprehensions about administrative hegemony. The first involved the friction between the hierarchical and unelected bureaucratic state and the ideal of majoritarian democracy, as expressed in some form of consent, whether through direct participation or genuine representation. This critique was taken up in the 1930s when administrative governance became hegemonic in the federal government and democracy seemed under threat. The second entailed the problematic place of the rule of law within an administrative regime. Legalism became the focus of attention during World War II, when concerns about a democratic deficit became muffled by military mobilization and patriotic fervor. Leading this debate was a group of German émigré legalists who noted the threat to the rule of law in both democratic and totalitarian states that were organized bureaucratically. Germany became central to this discussion because the Nazis maintained a pretense to legality and because fealty to the rule of law became an issue in the German occupation in which many of the émigrés participated. The third involved the threats to individual autonomy and equality posed by an expert-driven, technocratic form of governance. Here the most important interlocutor was John Rawls, who began his project of legitimating the administrative state in the late 1940s while a graduate student in philosophy at Princeton. Rawls, who has only recently garnered significant historical attention, focused on the individual as the main arbiter of right in a modern state and the requisites for maintaining autonomy in a hierarchical, unelected bureaucracy. For these thinkers, the administrative state brought with it a level of bureaucracy that threatened popular sovereignty, a level of emergency rule that jeopardized the legalistic principles that constrained arbitrary state action and protected the less powerful, and a level of instrumentalism that detracted from the more vital objectives of individual autonomy and a just outcome for all.

These criticisms were not, for the most part, aimed at programs or policies. Instead, the sympathetic critics expressed concerns not about whether the state should intervene in the economy, the society, or other countries, but how it should do so, not about whether there should be government regulation of economic institutions but what kind and subject to whose control. They worried, on a more general level, about how the state should justify itself to its citizens in order to command their support: On what basis would or could citizens offer their consent to the political institutions of the administrative state? Liberal democracy in a bureaucratic, crisis-ridden guise needed to be able to justify both constraining the power of the state and the need to increase that power. The question was how to justify the bureaucratic state beyond an emergency. What made it worth supporting other than its ability to respond quickly and decisively to crisis conditions? And once the emergency is over, how may a constitutional democracy legitimately assert its power to protect itself from future crises? What, in other words, threatens the very existence of a constitutional democracy, and what may a democratic regime legitimately do to counter such a threat?

The sympathetic critics of liberalism looked for ways to temper the excesses of the state in light of these liberal democratic norms and to offer a principled justification for the use of concentrated executive and discretionary power should these prove necessary. They did not wish simply to excuse the invocation of emergency power or administrative fiat, but to find ways to preserve as much as possible democratic practices and legality in light of these developments. One might say they sought to replace emergency justifications for the use of bureaucratic power with normative ones. To do so they identified political and moral principles by which the new forms of coercive state power could coexist with other modern liberal values: democracy, the rule of law, and individual autonomy.

Although they may have differed on any given policy prescription, governmental program, or political question—such as how much the state ought to control or even take over capitalist enterprise—they shared a concern over the implications of administrative hegemony for the functioning of constitutional democracy and over the seeming inability of the new statist liberalism to arrive at a principled defense of the new administrative state. In response, they sought to strengthen statist liberalism by regrounding it in more coherent ethical principles. Political modernists, they did so without harkening back to older public philosophies such as republicanism or progressivism.¹⁶ In terms of the liberal tradition, wrote Pendleton Herring, a critical liberal and political scientist, there has been a marked tendency of late to underestimate the moral element and to treat Ignorance and Want as manageable economically or technologically.¹⁷ Statist liberalism was met with a moral not a technocratic critique by its fellow travelers.

Yet they did not prescribe an overarching common good. Instead, the sympathetic critics emphasized procedural ethics and the internal moral compass of the citizenry. Even for the German émigrés, many of whom could not quite let go of their yearning for a unified state sovereignty, the idea of the state prescribing a moral code or way of life stank of Nazism’s noxious communitarianism in which general principles of ethnically based communal solidarity substituted for rational, formal law. Although the critics’ more grounded diagnoses of the ills of the age were not always apt or convincing, they frequently asked the right questions—questions that flowed from the obvious and stark changes in governance and political institutions and that are still being asked to this day.

The crucial issue was the impact of the newly organized state on constitutional democracy. The sympathetic critics aspired to a state that could achieve not just stability but what Rawls came to call stability for the right reasons—reasons that were rational and that embodied a firm allegiance to a democratic society’s political (moral) ideals and values.¹⁸ They agreed that means and ends were not separable, that what kind of democratic institutions existed determined what kind of democracy would be possible, and that any worthwhile liberal democracy could not ignore the ethical dimension necessary to define and realize its aims. Critics such as Herring believed that the piecemeal and technocratic response of the architects of the New Deal and the warfare state was overly identified with a single-minded quest for efficiency of administrative governance and not enough with how those institutions operated—on whose behalf, with what protections against abuses of power, with what sorts of consequences for the rule of law, democracy, and individual autonomy.

The issues that the critical liberals wrestled with were rarely theoretical abstractions. The interlocutors of liberalism, many of whom served directly as officers in the federal government or indirectly as formal advisers, examined how political institutions ought to be structured and according to which political and legal rules and objectives. Louis Jaffe, Pendleton Herring, Philip Selznick, Carl J. Friedrich, Arnold Brecht, Ernst Fraenkel, Otto Kirchheimer, Karl Loewenstein, Franz Neumann, and even the moral and political philosopher John Rawls, among others, may not have been the most public of intellectuals. Yet all were important in shaping both political and intellectual debates over the fate of liberal democratic institutions in an era of bureaucratic governance and emergency politics. These thinkers did not form a cohesive group in any institutional or ideological sense, though many of them knew one another and engaged in a vibrant cross-disciplinary debate about the administrative state. Although they may not have gathered in a weekly salon, neither were they isolated intellectual monads. All held academic posts at one time or another and read each other’s writings, despite hailing from a wide range of academic disciplines. Some belonged to the same academic associations and worked together in the federal government. Their political orientations ranged from variants of statist liberalism to social democracy. Indeed, some would surely shudder at being called a liberal. But one need not identify as a liberal to support liberal ideas or criticisms. What united them politically was their sense of unease with the administrative state and their reasons for that unease. Together, they constituted a community of preoccupations that contributed to national political debate and, on occasion, shaped policy choices from the 1930s until the 1970s, when deregulation undermined statist political persuasion.¹⁹

In addition to the difficulties generated by the administrative state’s awkward fit with existing legal and political practices, the new state was rendered problematic for another reason: it was a crisis state.²⁰ This crisis orientation resulted from the emergency conditions under which the state emerged as well as the natural affinity between administrative governance and crisis governance. Emergency rule, it has often been noted, represents modern administrative governance in its purest form. Crisis government is essentially executive and administrative government, observed the idiosyncratic liberal thinker Max Lerner.²¹

The crisis conditions in which the administrative state grew up accentuated the state’s more perilous and controversial features even as they stimulated creative policymaking.²² The twin calamities of global economic collapse and total war provided both the excuse and the necessity for the substantial expansion of administrative and executive power. Unique among modern democracies, the American administrative state came to fruition in the context of structural crises, and this encouraged certain inherent affinities between crisis politics and administrative governance: decreased reliance on deliberative politics and greater dependence on specialized bureaucrats with responses at the ready. There was also a tendency for the executive to concentrate power in order to make quick decisions and circumvent partisan adversity. It is no accident that when the clouds of emergency finally began to clear in the 1960s, full-blown critiques based on these earlier criticisms burst forth as bureaucracy became the enfant terrible of left-wing student and antiwar activists and of antistatist conservatives alike.

The third factor that shaped the critiques of the administrative governance involved the mounting affinities between bureaucratic democracies and totalitarian states.²³ The hegemony of administrative governance and the crisis orientation of the American state revealed what Sheldon Wolin has called a common order of problems that affected both democracies and dictatorships. The awareness of these similarities, particularly acute among the German émigré intellectuals focused on Nazi Germany, exposed the fragility of constitutional democracy, and constrained the imagined futures for the state. As Wolin rightly emphasizes, A common order of problems does not necessitate a uniform response. Nevertheless, the hard truth is that the differences in ideology and practices are not always as sharp as one would perhaps like. A common order of problems does set limits to the range of possible choice.²⁴ A keen understanding of that range united the figures participating in this complex midcentury conversation about statist liberalism.

The themes of democracy, the rule of law, and individual autonomy were, at times, intertwined in the writings of these critical liberal intellectuals. However, they tended to emphasize one or another, their emphases corresponding to the changing contextual frame within which they were writing. This work thus takes up one theme at a time in keeping with the chronology of the discourse about statist liberalism. However, it would be wrong to assume that any of these concerns was ever thought about in complete isolation from the others. Broadly, the rule of law—a normative conception of legality requiring rational, formal, and predictable rules that ensured fairness and equality—was seen as necessary for establishing the conditions for democracy and individual autonomy, while autonomy was a necessary precondition for democratic participation. The German legalists, for example, believed that the individual stood a much greater chance of achieving the kind of freedom and equality required by democracy if the rule of law prevailed. Without it, special privileges accrued to better organized and powerful interest groups and firms, which only aided them in their efforts to dominate the political process.

Democracy was the trickiest of the concepts engaged by the critical liberals and requires elaboration. Modern democracy has been conceived of in many different ways—as government by majority rule; as a system that ensures political and legal freedom and equality by securing rights; as an arena of bargaining among interest groups; or as popular sovereignty, a political arrangement in which the people as much as possible have the final word, either indirectly through their representatives and by elections, or directly through participation and voice. In the last definition, democracy is a form of consent, or the expression of political will. Majority rule remains at the center of this definition, but it is constrained by checks lest it trample on the rights of the minority.

Most critical liberals believed that this modified form of majority rule, grounded in consent, had become more difficult to achieve in the administrative state because deliberative institutions—elective, rule-bound, and transparent—had become less important than the discretionary decisionmaking powers of bureaucratic appointees. This, in turn, meant that elections themselves became less important as a form of consent. At the same time, access to the decision makers in administrative institutions, with the exception of well-organized and powerful interest groups, also decreased, again making democratic participation and consent more difficult to achieve. As a young David Riesman argued, Many persons who have considered the problem are aware of the need for supplementing the dull regularity of elections with more extensive public participation and responsibility. He added, quoting the political scientist Charles E. Merriam, The organization of consent is the greatest problem of our day. Riesman concluded, as did many other critical liberals, that to save democracy there would need to be greater access to administrators and new forms of participation in government as well as the means to force the bureaucracy to become more responsive to public demands.²⁵

In exploring how liberals responded—and did not respond—to issues of legitimacy raised by the growing administrative state, it is important to clarify several key concepts, not least the administrative state itself. The recognition among scholars that modern American liberalism initiated a fundamental transformation in the country’s mode of governance, as opposed to a more modest program of political and social reform, is of relatively recent vintage. So too is the description of the institutions undergirding that governance as the administrative state. Many scholars use the term in a narrow, institutional sense. In this book, the administrative state denotes the institutions that populate the federal government—a plethora of agencies, boards, commissions, and any other institution inhabited by unelected officials whose task is to design and implement domestic, foreign, and military policies.²⁶

This narrower conception elides the fact that the modern administrative state, as it emerged in the 1930s, is also defined by certain functions that necessitate administrative hegemony such that the entire governing structure yields to administrative norms. It is a regulatory and compensatory or social services state, but it is also a knowledge-producing state, and a military state. All of these functions rely upon technical expertise, the state’s deep penetration into society and the economy, and the predominance of a semiautonomous bureaucratic element within the state’s organizational structure.²⁷ The people who perform these tasks, the congeries of unelected bureaucrats and the political appointees who oversee them, constitute the largest sector of the federal government in an administrative state. The administrative state, as it developed in the nineteenth and twentieth centuries in the West, was also accompanied by a concentration of power in the executive and an increased use of emergency rule.

Finally, the administrative state possesses its own political rationality. I use the phrase administrative ideology to describe the American version of this rationality. This ideology, which coalesced in the 1930s, was self-justifying—it did not refer to any ultimate aim or even any general principles to rationalize the newfound administrative hegemony. Besides its commitment to efficiency, the importance of elected, expert officials, and the delegation of legislative power to those officials and ultimately to the president, this ideology celebrated the fact that administration was the most important function of the state. The raison d’être of bureaucratic institutions was efficiency and expedience.²⁸ Wrapped in economic and geopolitical emergencies, this instrumentalist ideology was ultimately not enough to sustain a compelling normative basis for governance under less extreme political and economic conditions.

The notion of a normative justification of the administrative state raises the question of legitimacy, a question that has bedeviled the American administrative state from the outset. This is not to say that critical liberals saw the state as illegitimate or that it was on the brink of a legitimacy crisis. First, a principled justification was hardly necessary for the administrative state to function or even to function well. Second, there is no evidence that the American political system was regarded as illegitimate by any substantial segment of the public.²⁹ Finally, something more than public assent is required for legitimacy.

By legitimacy, I mean that the state is perceived as having a moral right to exercise power over its citizens. Put another way, a legitimate state has succeeded in consistently and meaningfully justifying its political arrangements to the persons who must live under them. We have seen that it would be difficult to establish this fact for the polity as a whole based on the absence of public outcry. In any case, the degree of popular support for government is not the topic explored here. Rather this book views legitimacy as a form of public justification, that is, of making political arrangements justifiable to the citizens who must live under them. On this understanding, the state can achieve legitimacy in two ways. It can demonstrate a consistent adherence to its own claims to legitimacy, or it can establish an "internal standard for adjudging the legitimacy of specific actions, institutions, rights, and duties."³⁰ Arguably all states, except for those that rely on pure force, need to be able to claim legitimacy. But as the sociologist Nikolas Rose has pointed out, the bureaucratic welfare state, precisely because it purports to act for the well-being of its citizens, requires that the governing authority give reasons for its actions based on authoritative knowledge. Once knowledge is connected with governance, ruling becomes a ‘reflexive’ activity in which rulers must ask themselves such questions as who should govern, what is the justification for government, what or who should be governed and how. The fact that governance is grounded in knowledge makes possible both the exercise of government and its critique—a critique, that is, from within the ruling political logic itself.³¹ Therefore, the absence of a significant debate about the nature of the state’s major institutions and practices would be a rough indication that the basic structures of the American state had achieved a high level of legitimacy in the sense that the state had offered a persuasive justification for its rule.

The critical intellectuals of concern here searched for plausible claims of legitimacy for the administrative state and posited institutional and normative adjustments that would make those claims realistic but that went beyond the normalization of emergency power.³² The fact is that liberal practices in the United States have never been well established as normative commitments, and the burden on American political actors and intellectuals to produce culturally resonant rationales for state governance has always been particularly heavy, for a variety of reasons. Not among these reasons is the usual explanation of American exceptionalism, the seemingly intractable and pervasive antipathy to government involvement in society and economy. Rather, historians need to attend more closely to the fact that modern political liberalism and its state came about amid the emergencies of catastrophic economic failure and a devastating and unsettling war.

The issue of the administrative state’s legitimacy has not been lost on scholars in general and historians in particular. However, it was not until the 1960s that the problem of political legitimacy was made explicit in the scholarly literature, when the United States witnessed vocal challenges to the state by activists and intellectuals of a variety of political persuasions.³³ Political scientists, legal scholars, and students of public administration usually understand the legitimacy problems with the American administrative state as emanating from the relationship between administration and the rule of law or constitutionalism, or between administration and private rights.³⁴ Most acknowledge that the New Deal state did raise issues of legitimacy but that these issues have long since been resolved, either by the Supreme Court’s acceptance of Congress’s broad delegation of what amounts to lawmaking to the bureaucracy or by legal reforms constraining the discretion and scope of administrative rule. Others argue that because the administrative state clearly exists and is thriving, it is ipso facto legitimate.³⁵ Historians, meanwhile, have embarked on their own quest for legitimation by excavating the uses of federal power throughout American history. Or they have joined with political scientists in suggesting that legitimacy issues surrounding the American administrative state were largely resolved in the wake of the New Deal.³⁶ Some issues surely were. It is also certainly true that the administrative state as a whole has been widely endorsed by political elites if, in some cases, only as a necessary evil. However, a broader and more historical view of the state and one that attends to liberals’ own discomforts with the new leviathan suggests that the questions surrounding its legitimacy were more variegated and potent than these analyses suggest.

Recent historical literature on the New Deal–era state has taken up just these sorts of questions. Historians have begun to tackle the burdens the New Deal state has placed on American politics and society, rather than simply celebrating its efforts or lamenting the constraints within which it operated. This approach has reinforced Theodore Lowi’s claim of more than four decades ago that, the current national political discourse notwithstanding, the debate over the modern liberal state during the New Deal era did not generally center on more or less government or centralization versus decentralization (federalism). Liberals and conservatives alike accepted a powerful central state in one guise or another. However, the legitimation and efficacy of the leviathan state came with structural and conceptual costs and elisions, strategic justifications, and unseemly trade-offs. Southerners, as Ira Katznelson has shown, were willing to accept a strong bureaucratic state if they could keep white supremacy. Liberal elites and Americans more generally could abide the interventionist state, Michael Sherry has revealed, so long as there was a militaristic rationale behind it. Finally, James Sparrow has argued that a newly powerful centralized state legitimized itself to a skeptical citizenry by informing citizens that they had a moral obligation to obey and participate in their government’s war efforts given the sacrifices of so many American soldiers. The state appealed, in other words, to their patriotism. At the same time the warfare state fostered new rights claims by its citizens in return. But these, Sparrow admits, have often been trumped by a nearly constant state of emergency generated by the Depression, World War II, the Cold War, and terrorism.³⁷

These works reveal that while it was not as difficult as the American exceptionalist ideal might suggest to convince Americans to accept some version of a powerful administrative state, the justifications offered, aside from the purely pragmatic, could not function beyond the emergencies or immediate purposes they were meant to address. Adding to this developing interpretation, this study demonstrates that the hollowness of these instrumentalist rationales was recognized as early as the 1930s and 1940s by a group of prescient critics who looked for a more lasting basis for the administrative state’s legitimacy. They did so by directly confronting the sacrifices necessary for living with the leviathan, and by trying to find ways for minimizing or circumventing the damage to democracy, the rule of law, and individual autonomy.

The antidemocratic potential of the new leviathan was difficult to ignore. With a full-fledged administrative state in the 1930s, with nearly unimaginable crises to manage, even some sympathetic liberal critics who served in government could see how vulnerable the new administrative agencies were to capture by powerful interests. The legal academic Louis J. Jaffe, for example, understood that individuals and groups never stood a chance before governmental institutions that often operated in secrecy, or at least without the knowledge of the average citizen, and according to highly technical rules and regulations. They knew that Congress had less and less power over policymaking, and they worried about a growing democratic deficit in the face of all of these developments. They sought answers in representative bureaucracy and new channels for participation in regulatory schemes. And they even began to worry about the rule of law ideal, the constraining of government power by a constitution and an independent judiciary, and a way for the less powerful to be heard. Yet the outbreak of the war tended to quiet many of the criticisms of the administrative state as the focus shifted to the cooperation of all governmental institutions toward the single aim of winning the war against fascism.

Yet World War II would have a far-reaching impact on midcentury liberal thought, in many ways more than the Cold War. A thoroughgoing reinvigoration of the debate over the administrative state would come only with the arrival of a new group of intellectuals who hailed from Germany and brought a fresh perspective to the threats to constitutional democracy by administrative hegemony. The German émigrés drew on their experiences of antiliberalism and the birth of totalitarianism out of a constitutional democracy in reinvigorating a discussion over the rule of law ideal, both as a theoretical and as a practical matter. The German émigrés worried about the threat to the rule of law ideal posed by the concentration of executive and administrative power, a feature, they noted, shared by both democratic and totalitarian regimes. These émigrés had seen law in its most foundational form—the Weimar Constitution—fail to head off a totalitarian assault and then reemerge, albeit grossly distorted, under a regime that stood for the very opposite of legality. These developments raised crucial questions about what law was and ought to be and how it might function as a check on modern state power while also remaining flexible enough both to ward off threats to a constitutional democracy’s very existence and to accommodate the move toward greater administration. The demise of Weimar and the Nazis’ retention of legal forms reinforced the need for some sort of ethical warrant for the law. The émigrés (and later Rawls) rejected the moral absolutism of natural law, and instead searched for ethical standards internal to legality itself.

The wartime debates make clear that World War II and Nazism need to be considered as phenomena distinct from Soviet communism and the Cold War in telling the history of statist liberalism and its discontents.³⁸ Privileging anticommunism and the Cold War in the narrative of modern American liberalism tends to assimilate Nazism and World War II into the later fears of totalitarianism, leading scholars to ignore the ways in which Nazism raised unique issues of concern to liberal democratic thought and practice. With Nazi Germany in mind, Carl Friedrich even suggested that the totalitarian state was but an extreme version of the discretionary policy state emerging throughout Western democracies: Totalitarianism may be considered an exaggerated expression of this general tendency toward the emphasis on policy [rather than legislation]. For in totalitarianism the leaders claim for themselves the right to decide policy matters without any regard to legal forms.³⁹ For Friedrich the lesson was not to give up on the administrative state, but to ensure that the proper legal constraints were in place. In general, by stressing the structural similarities in democratic and totalitarian versions of the administrative state, the sympathetic critics could highlight the toll on democracy, the rule of law, and individual autonomy that the growth of administrative hegemony, executive power, and emergency rule might take when carried to an extreme.⁴⁰

The liberal discourses that arose in the United States in the 1930s and that were elaborated over the next several decades reflected the American context in which they arose, but they were not unique. The changes to which intellectuals responded could not, after all, be contained within a single country, and neither could the discourses about them. Rather, the liberal debates discussed in this book were a response to the consolidation of a certain form of political rule—modern administrative governance. To recognize that transnational structural changes shaped thinking about modern liberalism, then, is also to reconsider the role of immigrant thinkers in these conversations. Instead of considering German émigré intellectuals as importing foreign ideas into a unique American political culture, one ought to see them as offering different angles of vision on broad-based structural transformations in the modern state. The transatlantic importation of political ideas was kept alive, in part, by the large numbers of immigrants from Europe who made the United States their home and contributed significantly to its intellectual life.⁴¹

As the first great expositor of modern contractarianism, it was John Rawls who pulled together many of the strings left dangling by the unfinished critiques of the statist liberals. He did so as most other liberal intellectuals had abandoned their focus on political institutions in favor of cultural and psychological characteristics deemed important for keeping totalitarianism at bay. His was the first new social contract theory in more than 150 years. The growth of arbitrary power and emergency authority inherent in the administrative state helps to make sense of a significant mystery in the history of modern American liberalism: the sudden reemergence of social contract theory after the war.⁴² As many scholars have pointed out, Rawls gave philosophical grist to the new faith in rights impelled by World War II, but he also tried to resolve the tensions that had plagued statist liberalism since the New Deal. Rawls excavated the idea of consent as the key to maintaining individual autonomy within an interventionist state, a state he very much wanted to preserve but not at the price of lost individual liberty and equality. His theory revolved around two principles of justice that could be said to inform political and social institutions in a nearly just constitutional democracy.

Rawls wrote mostly about ideal theory and scholars often read his ideas as inapplicable to real-world problems. Yet all modern social contract theory is intrinsically concerned with consent and legitimation, whatever else it might entail.⁴³ Hence one might say that discretionary administration is the arbitrary government of the twentieth century and that Rawls’s social contract was an answer to this new form of arbitrary power and unpredictability in governance.

In addition to the more obvious adherence to rights and a commitment to justice based in reason, Rawls’s social contract device conveyed ideas about access to and knowledge about political decision making, self-rule, and cooperation among citizens, all of which were (and are) severely tested by the