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Of Wing Dams, Tyrannous Bureaucrats, and the Rule of Law

November 6, 2014

Originally posted on the OUPblog on 1st November, 2014. By Daniel Ernst, Professor of Law at Georgetown University. He is the author of Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940, available on Oxford Scholarship Online.

Tocqueville's Nightmare

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.

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.


If objective moral reasoning is possible, how does it get started?  Sidgwick’s answer is, in brief, that it starts with a self-evident intuition. He does not mean by this, however, the intuitions of what he calls “common sense morality.”  To see what he does mean, we must draw a distinction between intuitions that are self-evident truths of reason, and a very different kind of intuition. This distinction will become clearer if we look at an objection to the idea of moral intuition as a source of moral truth.

Sidgwick was a contemporary of Charles Darwin, so it is not surprising that already in his time the objection was raised that an evolutionary view of the origins of our moral judgments would completely discredit them. Sidgwick denied that any theory of the origins of our capacity for making moral judgments could discredit the very idea of morality, because he thought that no matter what the origin of our moral judgments, we will still have to decide what we ought to do, and answering that question is a worthwhile enterprise.

On the other hand, he agreed that some accounts of the origins of particular moral judgments might suggest that they are unlikely to be true, and therefore discredit them. We defend this important insight, and press it further. Many of our common and widely shared moral intuitions are the outcome of evolutionary selection, but the fact that they helped our ancestors to survive and reproduce does not show them to be true.

This might be taken as a ground for skepticism about morality as a whole, but our capacity for reasoning saves morality from this skeptical critique. The ability to reason has, of course, evolved, and clearly confers evolutionary advantages on those who possess it, but it does so by making it possible for us to discover the truth about our world, and this includes the discovery of some non-natural moral truths.

Sidgwick thought that his greatest work was a failure because it concluded by accepting that both egoism and universal benevolence were rational. Yet they pointed to different conclusions about what we ought to do. We argue that the evolutionary critique of some moral intuitions can be applied to egoism, but not to universal benevolence. The principle of universal benevolence can be seen as self-evident, once we understand that our own good is, from “the point of view of the universe” of no more importance than the similar good of anyone else. This is a rational insight, not an evolved moral intuition.

In this way, we resolve the so-called “dualism of practical reason.” This leaves us  with a utilitarian reason for action that can be presented in the form of a utilitarian principle: we ought to maximize the good generally.

What  is this good thing that we should maximize? Is my having a positive attitude towards something enough to make bringing it about good for me? Preference utilitarians have argued that it is, and one of us has, for many years, been well-known as a representative of that view.

Sidgwick, however, rejected such theories, arguing that the good must be, not what I actually desire but what I would desire if I were thinking rationally. He then develops the view that the only things that it is rational to desire for themselves are desirable mental states, or pleasure, and the absence of pain.

For those who hold that practical reasoning must start from desires, it is hard to understand the idea of what it would be rational to desire – or at least, that idea can be understood only in relation to other desires that the agent may have, so as to produce a greater harmony of desire.

This leads to a desire-based theory of the good.

One of us, for many years, became well-known as a defender of one such desire-based theory, namely preference utilitarianism. But if reason can take us to a more universal perspective, then we can understand the claim that it would be rational for us to desire some goods, even if we have no present desire for them. On that basis, it becomes more plausible to argue for the view that the good consists in having certain mental states, rather than in the satisfaction of desires or preferences.

- See more at: http://blog.oup.com/2014/06/the-point-of-view-of-the-universe/#sthash.LhtDta11.dpuf



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