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Of wing dams, tyrannous bureaucrats, and the rule of law

I vacation in a small town on a lovely bay in the northwestern corner of Michigan’s lower peninsula. This summer my stay coincided with the run-up to the state’s primary elections. One evening, just down the street from where I was staying, the local historical society hosted a candidates’ forum. Most of the incumbents and challengers spoke pragmatically of specific matters of local concern, of personal traits that would make them good officeholders, or of family traditions of public service they hoped to continue. Some promised to be allies in disputes with the state government in Lansing. One incumbent claimed to have persuaded the state department of environmental quality to drop its longstanding objections to a wing dam that would spare a marina costly dredging. But just when I was ready to conclude that the Tea Party movement had run its course, another candidate, who identified himself as a lawyer and an expert in constitutional history, used his time to develop the claim that bureaucracy was unAmerican and that as it grew so did liberty diminish. I may have seen fewer approving nods than followed the other candidate’s tale of the wing dam, but most in the audience appeared to agree with him.

Several historians have already engaged the popular antistatism I encountered that evening. Some have argued, as Progressives did in the early twentieth century, that, after the rise of vast and powerful corporations, public bureaucracies were needed to make freedom something other than the right to be subjected to the dominion of the economically powerful. Others have taken aim at the claim that bureaucracy was incompatible with America’s founding principles. The University of Michigan’s William Novak blasted this as “the myth of ‘weak’ American state.” Yale University’s Jerry Mashaw has recovered a lost century of American administrative law before the creation of the first independent federal regulatory commission in 1887.

Elk rapids at sunset. Photo by
Elk Rapids at sunset. Photo by Joy S. Ernst. Used with permission.

What such accounts miss is a long tradition of antistatism and its shaping effect on American statebuilding. Alexis de Tocqueville was an early and influential expositor. Although Americans had centralized government, Tocqueville wrote in Democracy in America that it lacked centralized administration. And that, he argued, was a very good thing: if citizens of a democratic republic like the United States ever became habituated to centralized administration, “a more insufferable despotism would prevail than any which now exists in the monarchical states of Europe.” The builders of the administrative state were not heedless of Tocqueville’s nightmare, but they were convinced that their political system was broken and had to be fixed. They believed they lived not in some Eden of individual liberty but in a fallen polity in which businessmen and political bosses bargained together while great social ills went unredressed.

The most important of the statebuilders was no wild-eyed reformer but an austere, moralistic corporation lawyer, Charles Evans Hughes, who, as Chief Justice of the United States, would later out-duel President Franklin D. Roosevelt. Neither Hughes nor anyone else thought that government would control itself. Instead, he and other judges reworked the ancient ideal of the rule of law to keep a necessary but potentially abusive government in check.

Tales of thoughtful people working out intelligent solutions to difficult problems are not, I know, everyone’s idea of a good read. I bet that candidate who imagined himself battling for liberty and against bureaucracy prefers more dramatic fare. Still, I think the story of how Americans reconciled bureaucracy and the rule of law might appeal to residents of that small Michigan town, once they remember that the same department of environmental quality that sometimes balks at wing dams also preserves the water, land, and air on which their economy and way of life depend.

Featured image credit: ‘Alexis de Tocqueville’ by Théodore Chassériau, painted in 1850. Public domain via Wikimedia Commons

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