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i
BLAKE EMERSON
1
The Public’s Law. Blake Emerson.
© Blake Emerson 2019. Published 2019 by Oxford University Press.
iv
1
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at the address above.
9 8 7 6 5 4 3 2 1
Note to Readers
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v
For my parents,
CONTENTS
Acknowledgments ix
Introduction 1
I. The Specter of Bureaucratic Domination in Modern Political
Theory 4
II. Reconstructive Political Theory 11
III. The Public’s Law, Constitutionalism, and Administrative
Legitimacy 12
IV. Plan of the Book 18
Notes 205
Index 263
ix
ACKNOWLEDGMENTS
The book before you grew out of my doctoral dissertation in Political Science
at Yale University: “Between Public Law and Public Sphere: Reconstructing the
American Progressive Theory of the Administrative State.” While the spirit of
the book remains the same, I have revised the content to clarify the connections
between the Hegelian Progressives and Progressive legal thought more broadly,
and to better articulate the normative theory that grows out of the intellectual
and institutional history I present. In the Introduction and Conclusion, I have
sought to situate this project in the difficult context of the Trump presidency,
which flies in the face of Progressive democracy. I hope that my effort to recover
Progressive ideas and institutions will help us to rebuild a state adequate to the
requirements of individual and collective freedom.
This book would not have been possible without the support and influ-
ence of American and German civil society. When I was an undergraduate at
Williams College, Joe Cruz, Monique Deveaux, Georges Dreyfus, Will Dudley,
Nicole Mellow, Mark Reinhardt, Mark Taylor, and Robyn Marasco helped
me to pursue my early interests in Hegel, political philosophy, and American
politics. When I was a research assistant at the Aspen Institute Roundtable
of Community Change, Anne Kubisch, Gretchen Susi, and Keith Lawrence
introduced me to the importance of problems of economic and racial ine-
quality, and the potential for government and community agencies to address
them. The States of Connecticut and Baden-Württemberg supported a year of
study at Heidelberg University, during which I began writing the dissertation,
and took in the spirit of Southwest German constitutionalism. While I was in
Heidelberg, Armin von Bogdandy generously provided me with a position at
the Max Planck Institute for International Law and Comparative Public Law,
where I was able to improve my German as a translator and present my research
at institute colloquia. William Forbath helped arrange a visiting scholar posi-
tion at the University of Texas School of Law, which allowed me to continue
x A cknowledgments
my work while living in the Lone Star State. Allen Fisher gave expert advice
during my research at the Lyndon Baines Johnson Presidential Library. I re-
ceived support from the Department of Government at the University of
Texas at Austin to present a paper on German public law and the American
Progressives at the University of Texas Graduate Conference in Public Law and
from the Oscar M. Ruebhausen Fund to travel to Berlin for a conference organ-
ized by Dieter Grimm. The Max Planck Institute again provided support for me
to return to Germany for a seminar on Marx and Legal Theory, organized by
Benedict Vischer and Dana Schmalz, where I practiced my critique of Marx’s
Critique of Hegel’s Philosophy of Right. Yale University supported my doctoral
research in the Political Science Department. Peter Shane and Chris Walker
hosted the Administrative Law New Scholarship Roundtable at The Ohio State
University Moritz College of Law, where Jon Michaels, Nicholas Parrillo, Glen
Staszewski, and others gave very helpful suggestions to revise chapter 2. The
American Constitution Society hosted a Junior Scholars Public Law Workshop,
where I received excellent feedback on chapter 2 from Edward Rubin and Mark
Tushnet. The University of California, Los Angeles has supported the final
stages of manuscript preparation.
Numerous friends, colleagues, and students have provided essential guid-
ance and editorial help throughout the writing process. Jeremy Kessler met
with me to discuss my early research on the Equal Employment Opportunity
Commission, and helped me to puzzle through some of the darker crevices of
administrative law doctrine. Andrew March, Steven Smith, Bryan Garsten, and
Melvin Rogers provided useful feedback on my first attempts to engage with Du
Bois and Hegel. Alice O’Connor, Jess Gilbert, and Spencer Wood helped me with
my research on the agricultural New Deal. Professor von Bogdandy provided
crucial suggestions in my study of German public law. Eldon Eisenach gave
helpful comments on chapter 2. The members of Seyla Benhabib’s Doktoranden
Seminar—Umur Basdas, Adom Getachew, Stefan Eich, Devin Goure, Anna
Jurkevics, and Erin Pineda—helped me to think through the argument in the
early drafts. Members of Professor von Bogdandy’s Referentenbesprechung—
particularly Matthias Goldmann, Michael Ioannidis, and Dana Schmalz—
provided important insights on my research on German administrative law
and the concept of public authority. The American Political Development
Workshop participants—especially David Lebow, Samuel DeCanio, and David
Mayhew—helped me to think through my argument about the Progressives.
Christian Rosser met with me in Bern to discuss our shared interest in the
connections between Hegel, Goodnow, and Wilson. At my new home at the
UCLA School of Law, my colleagues Beth Colgan, Kristen Eichensehr, Rebecca
Stone, Richard Re, and Alex Wang have helped me to revise chapter 4. Stefan
Eich, David Lebow, Travis Pantin, Laura Schaefer, Noah Rosenblum, Jason
xi
A cknowledgments xi
Yonover, and Benedict Vischer read the final drafts of the dissertation carefully
to provide corrections and suggestions. Judith Calvert was exceedingly patient
and helpful with me as I delayed returning to law school while I finished the
dissertation. Taylor Pitz provided great feedback on later drafts of the book, and
Shane Farley’s proofreading and indexing helped to finalize the manuscript.
Jamie Berezin responded to my cold call to Oxford University Press, helped me
to develop the book proposal, and has shepherded the manuscript to publica-
tion. Brooke Smith copyedited the manuscript.
The professors I worked with in the Political Science Department at Yale
and at Yale Law School have shaped this project from top to bottom. Jerry
Mashaw introduced me to the study of administrative law and provided feed-
back on c hapter 2. Bill Eskridge’s seminar on statutory interpretation helped
me to develop my understanding of “the public’s law.” John Witt’s seminar on
legal historiography helped me to think through my historical argument and
to flesh out the broader legal theory of the Progressive Era. Dieter Grimm’s
course on “Weimar Jurisprudence” provided me with crucial insights about
German legal history, which helped me to compose the critique of German
state theory I advance in chapter 1. Stephen Skowronek’s course on “American
Political Development” introduced me to scholarship on Progressivism and the
American state that was absolutely formative for the approach I have taken—to
think about ideas in and through the institutions in which they are embedded.
The detailed feedback he has provided on all of the chapters has forced me
to take institutional constraints yet more seriously; he has combined skep-
ticism with encouragement in a way that has vastly improved the argument.
Bruce Ackerman’s We the People, which I read as an undergraduate, brought
me to law school. His courses on “Constitution: Law, Philosophy, History,”
the “Civil Rights Revolution,” and “The Foundations of Legal Scholarship”
have defined my understanding of public law and its relationship to popular
sovereignty. His unwavering support throughout this process, his formative
advice, and the passion he brings to his teaching and scholarship have been
an inspiration. Seyla Benhabib was the reason I chose to come to the Yale
Political Science Department. Her course on “European Political Thought
from Weber to Derrida” was the finest lecture I have ever attended and in-
spired me to pursue my interest in German political thought in the disser-
tation. She provided indispensable feedback, support, and careful reading of
the drafts at every stage of the process. Her scholarship, combining Hegel’s
appreciation of the intersubjective core of law, Habermas’s understanding of
the moral substance of communication, and Arendt’s concept of political ac-
tion, has thoroughly shaped the normative perspective this book advances.
I am truly honored and thankful to have studied under such an esteemed and
generous group of mentors.
xii A cknowledgments
Introduction
2 T he P ublic ’ s L aw
Introduction 3
administrative state did so with German theory and practice in mind. In partic-
ular, they learned from the German ideal of the Rechtsstaat—a “law state” that
would guarantee individual freedom and promote social welfare with statutory
authorization and through administrative action. To the extent contemporary
theorists engage with this German background, their point of reference is usu-
ally the thought of Max Weber, who offered a pathbreaking account of bureauc-
racy and formal-legal authority in the early twentieth century.2 Weber’s vision
of a state legitimated by statutory law, specialized scientific knowledge, and
bureaucratic neutrality has shaped scholarly understandings of the American
public law system.
I argue that this reliance on Weber has led to a truncated and distorted con-
ception of the administrative state. His theory reflected a particularly unstable
moment in German history when bureaucracy had lost its connection to sub-
stantive political values and instead took on a formal, instrumental cast. I turn
back to the thought of G.W.F. Hegel to enrich our understanding of the pur-
pose and structure of modern American government. I show how Hegelian
ideas inspired Progressive thinking in the formative years of the regulatory
state. Scholars such as John Dewey, Mary Follett, W.E.B Du Bois, Woodrow
Wilson, and Frank Goodnow embraced Hegel’s concept of a state committed to
individual freedom, but enlarged it to encompass democratic values. I unearth
this Hegelian background not merely because it is a contingent fact of intel-
lectual history: more than this, Hegel’s thought provides a firmer foundation
for understanding the immanent relationship between public law and practical
reason. I argue that we should reconsider Progressive Hegelianism as a model
for the present, because it shows us how we might construct a state that furthers
the freedom of citizens, both as individuals and as political consociates.
Recovering this Progressive theory of the democratic state is essential in the
present moment. Though administrative law is prone to perpetual crises of legit-
imacy,3 the presidency of Barack Obama saw particularly acute confrontations
between liberal efforts to deploy the state to improve social welfare and vindi-
cate civil rights, on the one hand, and conservative reaction against this trend
on the supposed basis of constitutional principle, on the other. A significant
strand of this reaction has targeted the Hegelian Progressives, in particular,
arguing that they imported dangerous, proto-totalitarian ideas into American
law.4 The ongoing conservative project to uproot the legacy of Progressivism,
the New Deal, and the Second Reconstruction has borne fruit in the Trump
administration’s attempted “deconstruction of the administrative state.”5 From
financial regulation, to healthcare provision, to environmental protection, to
sex equality, to the very independence of the civil service, the Trump admin-
istration has waged war on the regulatory state that has taken shape over the
past century.
4
4 T he P ublic ’ s L aw
Few have expressed the virtues of American democracy and the vices of
European bureaucracy with greater eloquence than Alexis de Tocqueville. He
observed that Jacksonian democracy was constituted by local forms of partic-
ipatory government, economic equality, a dense network of civil associations,
and the high esteem placed on law, courts, and attorneys. These together
produced “the slow and quiet action of society upon itself ” and a “state of
things really founded upon the enlightened will of the people.”6 With lim-
ited powers delegated to the federal government and most authority held
in local deliberative assemblies, he observed an “absence of what we term
the Government, or the Administration.”7 The exercise of administrative
power was transitory and illegible: “The authority which public men pos-
sess in America is so brief . . . that the acts of a community frequently leave
fewer traces than the events in a private family. . . . But little is committed to
writing, and that little is soon wafted away forever, like the leaves of Sybil, by
the smallest breeze.”8
While Tocqueville is frequently read as embracing America’s administrative
decentralization as a check to its democratic constitution,9 his view was more
complex. He argued that the American mixture of majority rule and imper-
manent administration could thwart the responsible exercise of democratic
power. These institutions created a disparity between the strength of popular
aspirations and the weak institutional framework that attempted to realize
5
Introduction 5
those aspirations: “by changing their administrative forms as often as they do,
the inhabitants of the United States compromise the stability of their govern-
ment. It may be apprehended that men, perpetually thwarted in their designs
by the mutability of legislation, will learn to look upon the republic as an in-
convenient form of society.”10 Here, Tocqueville compared the United States
unfavorably to the European governments, with their permanent administra-
tive machinery. In America,
as the majority is the only power which it is important to court, all its
projects are taken up with the greatest ardor, but no sooner is its attention
distracted, than all this ardor ceases; whilst in the free states of Europe,
where the administration is at once independent and secure, the projects
of the legislature continue to be executed, even when its attention is
directed to other objects.11
6 T he P ublic ’ s L aw
could be replaced with the body of the people; once the monarch had the bu-
reaucratic capacity to realize his will across his territory, the general will could
do the same; once broadly applicable laws and principles of administration
were instituted, equality could become a political reality.
The despotic legacy of administrative power, however, was that it had not
cultivated a capacity for political liberty. The feudal order it worked against
had wrought a popular hatred of inequality but provided no experience with
peaceful political participation. Absolutist bureaucracy likewise did not pro-
mote sentiments, skills, and institutions of public reason that would enable in-
clusive political engagement. The temporary fervor of the revolution for active
political life therefore gave way to equal submission to centralized, imperial
power under Napoleon Bonaparte.13
Tocqueville’s indictment of post-revolutionary administration cannot be un-
derstood to reject bureaucratic institutions as a whole. In the case of America,
he saw a democracy that lacked the institutional stability to realize democratic
purposes, though the people were well versed in the practice of deliberative
politics. In post-revolutionary France, he saw a democracy with awesome ad-
ministrative power, which lacked customs and institutions of sustained polit-
ical participation. Neither political order was adequate to the challenges of the
new democratic age.
The challenge Tocqueville’s studies together pose is how to marry adminis-
trative capacity with political liberty. While liberty without administration will
result in frustration and disillusionment with republican government, admin-
istration without liberty will descend into despotism. For “nothing but liberty
can draw men forth from the isolation into which their independence naturally
drives them—can compel them to associate together, in order to come to a
common understanding, to debate, and to compromise together on their joint
concerns.”14
It was precisely this spirit of joint venture that distinguished the American
political project. As Hannah Arendt argued, the pilgrims who established the
first colonies had “confidence that they had their own power . . . to combine
themselves together into a ‘civil body politick’, which, held together solely by
the strength of mutual promise ‘in the presence of God and one another’, sup-
posedly was enough to ‘enact, constitute and frame’ all necessary laws and
institutions of government.”15 America had from the outset constituted itself
by deliberative democratic practices that have relied upon the cohesive force
of rational political engagement. Tocqueville’s insight into the weakness of
American administrative power suggested, however, that such practices of mu-
tual promise and self-government would be a necessary but not sufficient con-
dition for republican institutions. Modern democratic rule would require that
7
Introduction 7
Kunhan vain ette esitä asioita liian nopeasti, jotta voin osoittaa
kykeneväni pysymään mukana, virkkoi Charlotta. Emmekö ole jo
ehtineet heimolaisiin asti?
Johtajattaren kirje.
Apulaisen kirje.
*****
Eduard oli lukenut kirjeen, toisinaan hymyillen ja päätänsä
pudistaen. Henkilöitä ja tilannetta koskevia huomautuksia sattui
niitäkin välttämättä.
Niin pian kuin hän huomasi, kuinka paljon hänelle jäi vapaata
aikaa, hän pyysi Charlottalta lupaa saada jakaa tuntinsa, ja jakoa
noudatettiin siitä lähtien tarkasti. Hän opiskeli opittavaansa apulaisen
Charlottalle kuvailemalla tavalla. Hänen sallittiin menetellä mielensä
mukaisesti. Vain joskus Charlotta yritti häntä innostaa. Niinpä hän
toisinaan asetti hänen käytettäväksensä kuluneita kyniä
totuttaakseen häntä vapaampaan käsialaan, mutta kynät olivat pian
teräviksi vuollut.