The Real Deconstruction of the Administrative State

“I must see Marini!!!” My boss, Clarence Thomas, then chairman of the Equal Employment Opportunity Commission, wrote that command in bold script across the first page of an essay by John Marini on how the deterioration of Congress led to the administrative state. The future Supreme Court justice was reading his work because he had asked me to recruit some additional staff, and I presented him with a sheaf of Marini’s publications.

When Thomas discussed Marini and me in his memoir, My Grandfather’s Son, he maintained that having hired us political theorists as speechwriters who functioned more as fellow seminar participants was a critical part of his constitutional education. Decades later, Justice Thomas would issue critical opinions on the administrative state.

Thomas and Marini are two counterrevolutionaries from vastly different backgrounds who see the same truths: What Thomas learned at the EEOC, on the Hill, in Yale Law School, and growing up Catholic under the firm hand of his remarkable grandfather in segregated Georgia and what Marini—who never had any professional connections to Washington, D.C. prior to his appointment at the EEOC—learned by reading great books and studying human nature led them to the same truths about the American republic.

While Justice Thomas writes about constitutional principles in his opinions, Marini produces incisive commentary, culminating in his just-published book, Unmasking the Administrative State. He chronicles the collapse of constitutional government and the rise of the administrative state. Appeals to the Constitution are no longer salutary without the requisite citizen character to support the self-government upon which its forms depended.

Rejecting the Constitution

In various ways, Marini exposes the demagoguery inherent in Franklin Roosevelt’s view that politics can relieve men of insecurity in life: “Necessitous men are not free men.” But could anyone but a god actually release men from necessity? The god of History, as articulated by its academic prophets and popularizing pundits and now worshiped by the presidents and partisans of both parties, claims such power. But does this god’s record merit our subordination of politics to him in exchange for this “gift”?

In rejecting this divine gift, former White House adviser Stephen K. Bannon spoke of the “deconstruction of the administrative state” as one of President Trump’s goals. But for Marini, the administrative state is not simply an agglomeration of bureaucracies, a congeries of despotic rules, or an inefficient mechanism: it is a rejection of the constitution that the citizen spirit of republican self-government requires for its perpetuation.

The administrative state reflects a mentality fostered by the modern university, living in the legal and other professions, in the leadership of the bureaucracies and prestigious institutions of modern life. As Tocqueville described the gentle or soft despotism of contemporary democracy, it smothers dissenting voices. Marini’s subject is the life and death and possible rebirth of democracy in America.

In the course of his explanation of the American founding, the powerful influence of modern theories of History, their clash in Progressivism, and the triumph of the security of the administrative state over the conflicts of constitutional government, he presents the improbable rise of Donald Trump: It may be that the reality show star Trump turns out to be the one who best knows the difference between truth and illusion in our age and is thus the Constitution’s best hope and even last protector. Trump speaks for ordinary citizen interests against those of the coastal elites and their intellectual boosters in the media and Washington, D.C. think-tanks.

This is not merely a cold academic treatise—as radio talk show host Mark Levin’s blurb states, “we must take heart.” Our love of country and our countrymen is what must propel us in the here and now. While appreciating the work of brilliant legal scholars such as Philip Hamburger, Marini unmasks the scandal at the center of today’s political crisis for the purpose of encouraging us to address it, not merely to study it.

The Politics of Budget Control

Marini illuminates the partial government shutdown of the last few weeks in the dispute over budgets and over border security. In his chapter on budgets, he writes,

It seems that both parties are in agreement insofar as they believe that the powers of the national government are unlimited. The Republicans deny any limitations on the power of government in terms of national security and foreign policy. The Democrats believe that government has unlimited power as regards domestic policy. (Emphasis in the original.)

Thus, particular factious policies result in a general bipartisan rejection of the separation of powers—the arrangement that permits boldness and moderation within a constitutional order. The rejection of this constitutional principle means that all such appeals to the constitution that are made today are actually merely opportunistic attempts to game it. Bursts of indignation sometimes sweep aside prevailing policies for an attempt, again, to find the common good. Trump seized upon such a moment and made that prevailing (and righteous) indignation the center of his campaign.

By exaggerating the actual impact of a wall or barrier on border security, essential though it is, Trump may have overlooked the vice that is greater than illegal immigration: that immigrants, illegal or legal, and native-born Americans as well, fail to recognize they are part of a social compact of citizens mutually recognizing each other’s rights and duties and limiting the reach of government.

Immigrants, Marini argues in a chapter on immigration, should join in promoting the common good as citizens, not as members of identity groups. “America established the ground of political citizenship in the equal natural rights of man.” But the Left constructed the administrative state on the basis of group identities. Trump would blow up the left’s project by emphasizing “America First”—citizens over identity groups, a great America over tribal factions.

“A Thrilling Proposition”

This taste of Marini’s approach leads to a feast of other suggestions about how to interpret American political history: Is the judiciary a protection against the administrative state or it now a part of it? Does Harvey Mansfield, who produced a magnificent edition of Alexis de Tocqueville’s Democracy in America and extraordinary commentaries on Tocqueville, understand the “soft despotism” of democracies? Could it be that Nixon, not his enemies, was the real defender of the Constitution before and during the Watergate crisis?

These are just some of the fascinating questions Marini raises. They and other questions are all part of the larger, political question he leaves for his readers to ponder: whether Trump will be able to bring about a “political realignment, perhaps of a magnitude not seen since FDR.” For those who understand the stakes in the battle, it is a thrilling proposition. “On the other hand,” Marini reminds us, “there is no guarantee that Donald Trump can or will prevail against the organized forces that inhabit the administrative state.”

Marini’s daughter was born when Gorbachev visited Washington, D.C in 1987. When John left the hospital with his wife and newborn baby, a barricade began going up, walling off Gorby’s motorcade. He told a cop that no tyrant should keep a free man from taking his family home. Agreeing, the cop removed the barrier, and the three Marinis went home.

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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: The Claremont Institute

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