Wednesday, November 21, 2012

Progressivism: The judiciary is an "expert panel" on the constitution

The progressives believe that the administrators should be separate from "politics". (I'll demonstrate this below) What they mean by "politics", is the political process. That is, you and I, the voting public.

In "Politics and Administration", Frank Goodnow writes the following: (Page 9)

Whatever may be the truth or error in this conception of the state, it is still true that political functions group themselves naturally under two heads, which are equally applicable to the mental operations and the actions of self conscious personalities. That is, the action of the state as a political entity consists either in operations necessary to the expression of its will, or in operations necessary to the execution of that will.

Note how in both instances the state is supreme. No mention of what the people actually want. And he goes on to talk about the will of "the sovereign", which is a lift right out of Hobbes' Leviathan. A book which lays out a tyrannical state. He talks about Leviathan on page 8.

But in keeping with this comment, you have the will of the state and the expression of that will. In order for that will(divorced from the people) to be expressed or executed, you need institutions which carry forward whatever it is that the government wants done. With that in mind, here is what Goodnow states on page 87:

The governmental authorities intrusted with the discharge of the administrative function should not only, like judges, be free from the influence of politics; they should also, again like judges, have considerable permanence of tenure. They should have permanence of tenure because the excellence of their work is often conditioned by the fact that they are expert, and expertness comes largely from long practice.

First, regarding the dirty influence of 'politics', Goodnow was hardly alone in this view. Herbert Croly agreed with this sentiment. In "Progressive Democracy", Chapter 17: "The Administration as an Agent of Democracy", Croly writes the following: (page 360)

In almost every case it depends for its success upon the ability and disinterestedness with which the law is administered.

"Disinterestedness" is the key. This is what makes "politics" so dirty and ugly: All of your individual private interests. Your private interests are what taint and corrupt the public interest, because your representatives are subject to your selfish wants and needs. But the administrators are not elected, they are expert, they are pure, they serve the public interest, they are disinterested. The public interest, those two heads Goodnow wrote about. The will of the state and the expression of that will.

Second, Goodnow is looking at the judiciary as a role model for administrative agencies, but in doing so he is readily putting on display his view that the judiciary is in/of itself an administrative agency. And what do they administer? The constitution. Woodrow Wilson writes in Constitutional Government (Page 155):

The tests of the federal Constitution can be applied in the state courts, and the tests of the state constitutions in the federal courts, but only in such a way as to make the federal courts the final judges of what the meaning and intent of the federal Constitution is, and the state courts the final judges and interpreters of what the state constitutions forbid or require.

One can't help but notice how Wilson wants to use the courts and constitutions against each other to systematically test for weaknesses. Like a foreign invader. But nonetheless, you see again the role of the judiciary in the progressive mindset. The judges are merely an expert panel among many. They say what it really says, not the text of the document.

It should be remembered, that Wilson recognized Goodnow's expertise on the matter:

In fact, when he later taught administration in the 1890s, he said that there was only one author other than himself who understood administration as a separate discipline: Frank Goodnow.[31]

We can see the judiciary as an expert panel on the Constitution in action. Congress already executed the will, now the expert panelists will express the will in written form. In J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), Chief Justice William Howard Taft declared the following:

If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under congressional authority. * see footnote

This strikes right at the very heart of one of the things that Woodrow Wilson hated most, separation of powers. When Wilson declared that he would be an unconstitutional governor, that's exactly what he was announcing. And later as president, he made speeches about the "mechanical" and rigid nature of the constitution:

No living thing can have its organs offset against each other, as checks, and live. On the contrary, its life is dependent upon their quick co-operation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day, of specialization, with a common task and purpose. Their co-operation is indispensable, their warfare fatal. There can be no successful government without the intimate, instinctive co-ordination of the organs of life and action.

That's the only way progressivism can work. The branches stop fighting each other, and start fighting against us. The people. And of course, our selfish, dirty, private interests.

This is why the colleges don't teach the constitution anymore, instead they teach case law. In order for suitable experts on the Constitution to be trained, they need to know where this is going, not where it started. If potential jurisprudents read the Constitution, they would know that at some point we've gone too far away from what the document actually states, and they would be unsuitable to be an administrator on the Supreme Court. Or any court, for that matter.

* In the Taft quote, the four words in the square braces come from the Hillsdale Constitution 201 lecture. Part 7, "The Transformation of America's Political Institutions" 17:55. Lecture 7 was very helpful in several places for the construction of this post.

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