Democracy may be one of the most admired ideas ever concocted, but what if it’s also one of the most harebrained? After many years of writing about democracy for a living, David Harsanyi has concluded that it’s the most overrated, overused, and misunderstood idea in political life. The less we have of it the better.
“Democracy” is not synonymous with “freedom.” It is not the opposite of tyranny. In fact, the Founding Fathers knew that democracy can lead to tyranny. That’s why they built so many safeguards against it into the Constitution.
Democracy, Harsanyi argues, has made our government irrational, irresponsible, and invasive. It has left the American people with only two options—domination by the majority or a government that can’t possibly work. The modern age has imbued democracy with the mystique of infallibility. But Harsanyi reminds us that the vast majority of political philosophers, including the founders, have thought that responsible, limited government based on direct majority rule over a large, let alone continental scale was a practical impossibility.
In The People Have Spoken, you’ll learn:
- Why the Framers of our Constitution were intent on establishing a republic, not a “democracy”
- How democracy undermines self-government
- How shockingly out of touch with reality most voters really are
- Why democracy is an economic wrecking ball—and an invitation to a politics of envy and corruption
- How the great political philosophers from Plato and Aristotle to Burke and Tocqueville predicted with uncanny accuracy that democracy could lead to tyranny
Harsanyi warns that if we don’t recover the Founders’ republican vision, “democracy” might very well spell the end of American liberty and prosperity.
[BOOKS] Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940, by Daniel R. ErnstPosted: March 4, 2015
Review of TOCQUEVILLE’S NIGHTMARE: The Administrative State Emerges in America, 1900-1940, by Daniel R. Ernst Oxford University Press, 2014
ADRIAN VERMEULE is the John H. Watson Professor of Law at Harvard Law School. He is the author or co-author of eight books on public law and legal theory, most recently The Constitution of Risk (2014).
Adrian Vermeile writes: Although Dan Ernst ends his account of the emergence of the American administrative state in 1940, the true climax, at least from the lawyer’s point of view, occurs in 1932. In that year the great Chief Justice Charles Evans Hughes undertook his titanic effort to forge a charter of compromise, a treaty of peace, between the administrative state and the rule of law. The case was Crowell v. Benson, involving an agency charged with deciding workman’s compensation cases involving injured maritime workers.
“The mid-century attempt to domesticate the American administrative state, described so skillfully by Ernst, ultimately came undone, and it is a live question whether anything else has taken its place.”
Hughes’s opinion in many ways laid down lines of demarcation that were written into the Administrative Procedure Act of 1946, the great framework statute or quasi-constitution of the administrative state. It is a tribute to Hughes that his effort created an equilibrium that outlasted the turbulent years of his Chief Justiceship — despite the intervening constitutional revolution of 1937, after which the courts stopped trying to enforce narrow readings of the national government’s power over interstate commerce, and stopped trying to police statutory grants of authority from Congress to the executive (the so-called “nondelegation doctrine”).
Having paid due tribute, however, it must be said that the equilibrium Hughes brought into being is a thing of the past. The line of demarcation between administration and law, the frontier of the administrative state, has shifted markedly, with law giving way to administration across almost every margin identified in Crowell — in large part because law has abnegated its authority to administration. Ernst is not wholly clear about whether the equilibrium he identifies persists all the way into the present, doubtless because the story from 1940 to the present is not the story he is trying to tell. But to understand the significance of his book, it is important to understand that what it offers is a portrait of a particular equilibrium, one that has since vanished. The mid-century attempt to domesticate the American administrative state, described so skillfully by Ernst, ultimately came undone, and it is a live question whether anything else has taken its place.
“Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles.”
Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles. Let me begin with the level of political and constitutional theory. The high-level frame of the book is a choice or contest among possible visions of the relationship between law and administration. Traditional lawyers were afflicted by “Tocqueville’s nightmare,” a vision of a centralized administration abusing its powers and trampling on legal rights. (The nightmare persists, of course, as Philip Hamburger’s recent book shows). The main alternatives or competitors may be understood as different conceptions of “the rule of law.”
One alternative, championed by Ernst Freund, was the German idea of the Rechtsstaat — the rule-of-law state founded on clear positive enactments that would fix the metes and bounds “where the sovereign’s will prevailed and where it yielded to the will of the individual” (p. 2). The Rechtsstaat ideal, however, lost out to a different conception of the rule of law, championed by Hughes among others — a modified and updated version of Albert Venn Dicey’s ideal that subjected all official action to review by ordinary common-law courts.
“…perhaps the major expansion of the administrative state since Crowellhas come not in the areas it addressed, but in an area it said almost nothing about: agency rulemaking. Agencies may act like little courts, as in Crowell, or like little legislatures, making general rules with the force and effect of law.”
After the emergence of the administrative state, the original version of the Diceyan ideal was a non-starter. Ernst shows convincingly that even some traditional lawyers came to understand and appreciate the expertise and efficiency of relatively nonpolitical agencies, who were more professional and less liable to be overrun by patronage politics than other potential suppliers of lawmaking, such as legislative committees, and more knowledgeable and less expensive than the common-law judges and the elaborate processes of litigation. Such lawyers reinvented themselves as transactional engineers, shepherding clients through the administrative process — not “officers of the court” but “officers of the state” (6). Yet lawyers like Hughes also worked to translate or adapt Dicey’s commitments in the new environment, developing an approach that retained a crucial role for judicial review of administrative action. As Richard Fallon has observed in a different but related context, the translated Diceyan approach attempted not so much to get every given case right, but instead to provide an overall scheme of review that would suffice to keep the administrative state within the bounds of law. Read the rest of this entry »
Private enterprise does more for the national good than it gets credit for
James Huffman writes: Alexis de Tocqueville reported that “Americans of all ages, all conditions, all minds constantly unite. . . . Everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States.”
Tocqueville went on to observe that these civil associations serving every imaginable end were the product of what he called “self-interest well understood.” Tocqueville reflected that “the beauties of virtue were constantly spoken of” in “aristocratic centuries,” but he doubted that men were more virtuous in those times than in others.
In the United States, he had observed, “it is almost never said that virtue is beautiful.” Rather Americans “maintain that . . . [virtue] is useful and they prove it every day.” This is what Tocqueville meant by “self-interest well understood,” which he illustrated with this quotation from Montaigne: “When I do not follow the right path for the sake of righteousness, I follow it for having found by experience that all things considered, it is commonly the happiest and most useful.”
“self-interest well understood” “forms a multitude of citizens who are regulated, temperate, moderate, farsighted, masters of themselves; and if it does not lead directly to virtue through will, it brings them near to it insensibly through habits.”
Twenty-first century Americans have forgotten this ancestral insight—that “self-interest well understood” “forms a multitude of citizens who are regulated, temperate, moderate, farsighted, masters of themselves; and if it does not lead directly to virtue through will, it brings them near to it insensibly through habits.” Perhaps “self-interest well understood” sounds too much of Adam Smith’s invisible hand for present day Americans whose habit, like the French of Tocqueville’s time, increasingly is to look for solutions not to private collaboration but to an omnipresent government. Nineteenth-century Americans who turned to both neighbors and strangers in pursuit of mutual interests would be puzzled at the hard and fast boundary their twenty-first century descendants draw between public and private interest.
This is the first installment of a new series: a Frenchman reads Democracy in America and investigates how it applies to the contemporary United States.
Pascal-Emmanuel Gobry writes: In Democracy in America, Alexis de Tocqueville doesn’t waste any time letting you know what impresses him most about America. To Tocqueville, equality and, to a slightly lesser — but very important — extent, religiosity, are the two foundations of the American experiment. His understanding of them certainly challenges both liberal and conservative sensibilities. But what does it say about America today that these two aspects of the American experience seem to be at all-time lows? And does Tocqueville point to a way forward?
The importance of economic and social equality
Tocqueville praises equality in his very first sentence: “Among the many things which drew my attention during my stay in the United States, none struck me more than the equality of conditions.” Two paragraphs later: “As I went on studying American society, I saw more and more in the equality of conditions the main fact which seemed to cause every other particular fact, and I kept seeing it before me as a central point to which all my observations led.”
Conservatives might not enjoy Tocqueville’s praise of economic and social equality as key to the success of the American experiment, but with some thought, you realize that Tocqueville is giving us a welcome way out of our incredibly dreary debates on the topic. A lot of conservatives claim that while the Left believes equality means equality of outcome, the Right is for equality of opportunity — but that’s a load of hooey. Everyone agrees with equality of opportunity, and all non-communists agree equality of outcomes is not desirable. The question is whether too much inequality of outcome leads to a greater inequality of opportunity. It’s a stubborn fact that, as a matter of dollars and cents, American society has gotten more unequal over the past 30 years. Does it mean that it has also become unequal in other ways? And if so, should we do anything about it? And what? Does Tocqueville show us a way?
CHARGES LEVIED BY THE STATE UNDER THE RULE OF THE AMERICAN DEMOCRACY:
Let us now suppose that the legislative authority is vested in the lowest order: there are two striking reasons which show that the tendency of the expenditures will be to increase, not to diminish.
As the great majority of those who create the laws have no taxable property, all the money that is spent for the community appears to be spent to their advantage, at no cost of their own, and those who have some little property readily find means of so regulating the taxes that they weigh upon the wealthy and profit the poor, although the rich cannot take the same advantage when they are in possession of the government.
In countries in which the poor have the exclusive power of making the laws, no great economy of public expenditure ought to be expected; that expenditure will always be considerable either because the taxes cannot weigh upon those who levy them or because they are levied in such a manner as not to reach these poorer classes. In other words, the government of the democracy is the only one under which the power that votes the taxes escapes the payment of them.
In vain will it be objected that the true interest of the people is to spare the fortunes of the rich, since they must suffer in the long run from the general impoverishment which will ensue. . .
Here we should observe that Tocqueville inclines toward supply-side economics. To continue:
Again, it may be objected that the poor never have the sole power of making the laws; but I reply that wherever universal suffrage has been established, the majority unquestionably exercises the legislative authority; and if it be proved that the poor always constitute the majority, may it not be added with perfect truth that in the countries in which they possess the elective franchise they possess the sole power of making the laws? It is certain that in all the nations of the world the greater number has always consisted of those persons who hold no property, or of those whose property is insufficient to exempt them from the necessity of working in order to procure a comfortable subsistence. Universal suffrage, therefore, in point of fact does invest the poor with the government of society.
The disastrous influence that popular authority may sometimes exercise upon the finances of a state was clearly seen in some of the democratic republics of antiquity, in which the public treasure was exhausted in order to relieve indigent citizens or to supply games and theatrical amusements for the populace. It is true that the representative system was then almost unknown, and that at the present time the influence of popular passions is less felt in the conduct of public affairs; but it may well be believed that in the end the delegate will conform to the principles of his constituents and favor their propensities as much as their interests.
But then Tocqueville provides the remedy that is missing from Romney’s rhetoric—how opportunity and social mobility, rather than redistribution, is the better road to advancement:
The extravagance of democracy is less to be dreaded, however, in proportion as the people acquire a share of property, because, on the one hand, the contributions of the rich are then less needed, and, on the other, it is more difficult to impose taxes that will not reach the imposers.