Missouri's 7th District, U.S. House of Representatives




Congressional Issues 2012
"The Administrative State"

Every Congressman takes an oath to "support the Constitution."

(1) J. Freedman, Crisis and Legitimacy, 6 (1978).

(2) Quoted in A. Gulas, The American Administrative State: The New Leviathan, 28 DUQUESNE L REV. 489, 490 (1990). (With Madison's warning ringing in his ears, Gulas nevertheless supports the "New Leviathan.") See also Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 Cornell L. Rev. 1 (1994), in which the author admits that we are no longer under the Constitution, but under a "second best" system, and we must simply make the best of it. The great constitutional scholar E. S. Corwin was

told that Professor Powell of Harvard carefully warns his class in Constitutional Law each year against reading the Constitution, holding that to do so would be apt to “confuse their minds.” Certain it is that of the 6,000-odd words of the constitutional document, at least 39 out of every 40 are totally irrelevant to the vast majority, as well as to the most important, of the problems which the Court handles each term in the field of constitutional interpretation.

E. Corwin, Constitutional Revolution, Ltd., 13 (1941). See also: Gary Lawson, The Rise and Rise of the Administrative State, Harvard Law Review, Vol. 107, No. 6 (Apr., 1994), pp. 1231-1254

You've probably never heard of "the administrative state." Do a Google search for "administrative state" to begin your study. This is just the tip of the iceberg.

Scholars and political scientists will tell you what most people don't know: we no longer live under the Constitution, with its three branches of government. We live under "Administrative Law" in an "Administrative State." James Freedman has called "the administrative state"  "a fourth branch of government,"[1] but it is actually a form of government which Madison, as he wrote in The Federalist, would have called “the very essence of tyranny.”[2]  

Rather than calling attention to this tyranny, most congressmen have continued to vote for higher appropriations for this unconstitutional system. Both the Republican and the Democrat parties are completely out of step with the intent of the Founding Fathers and the genius of the American system.

While a few thousand bills are introduced in Congress each term, only a few hundred become law, and this includes things like renaming a post office and giving a medal to Frank Sinatra.

Most of the real lawmaking is done in the bureaucracies. These unconstitutional agencies create ten times more law than Congress -- some 70,000 pages a year in "The Federal Register."

"Congressional oversight" of these bureaucracies is impossible; the size of government -- the "Administrative State" -- is as incomprehensible as it is unconstitutional.

Here is a list of many key federal agencies, departments, boards and commissions. These can be broken down into the following areas:

Special Report: How Congress Can Save America

The architects of "The Administrative State" despised the Constitution and the principles upon which America was founded. Ronald J. Pestritto writes in a Claremont Institute essay, "Leaving the Constitution,"

[Progressives] understood that the greatest obstacle to it was the Constitution of the United States—especially the separation of powers—and the principles of the Declaration of Independence upon which the Constitution rests. Politics and Administration: A Study in Government [by Frank J. Goodnow (1900)] provided a new vision for America's governing institutions and the arrangement of national power. In subsequent works, such as Social Reform and the Constitution (1911) and The American Conception of Liberty and Government (1916), Goodnow showed how this new vision arose from a critique of the bedrock ideas of American government. He complained about the "reverence" Americans had for their founding, which he regarded as "superstitious" and an obstacle to genuine political reform. In particular, he held that the focus on government's permanent duty to protect individual natural rights had impeded the marked expansion of governmental power that Progressives desired. He objected that the founders' principles were "permeated by the theories of social compact and natural right," which he regarded as "worse than useless" since they "retard development."

Goodnow wrote:

The rights which [an individual] possesses are...conferred upon him, not by his Creator, but rather by the society to which he belongs. What they are is to be determined by the legislative authority in view of the needs of that society. Social expediency, rather than natural right, is thus to determine the sphere of individual freedom of action.

William J. Novak
National Bureau of Economic Research
Corruption and Reform Planning Meeting
July 14, 2002

Between 1877 and 1937 (between the formal end of Reconstruction and the formal constitutional ratification of the New Deal), the American system of governance was transformed with momentous implications for twentieth-century social and economic life. Nineteenth-century traditions of self-government and local citizenship were replaced by a modern approach to positive statecraft.... This late nineteenth- and early twentieth-century revolution in governance is best characterized as “The Creation of the American Liberal State.”

By “The Creation of the American Liberal State” I mean to suggest that the period from 1877 to 1937 was not just an “age of reform” or a “response to industrialism” or a “search for order” (Hofstadter 1955; Hays 1957; Wiebe 1967). Rather, it was an era marked by the specific and unambiguous emergence of a new regime of American governance -- the modern liberal state. Nineteenth-century patterns of social governance and local economic regulation -- what I have described elsewhere (Novak 1996) as “the well-regulated society” -- were displaced by a decisive twentieth-century reconfiguration of the relationship between state, capitalism, and population in the United States. A central nation-state consolidated around new positive and political conceptions of sovereignty and administration radically extended its reach into American economy and society.

Of course, this transformation in American governance and the creation of a modern administrative state in the United States has not escaped the notice of historians, social scientists, and legal scholars.

Whether characterized in A.V. Dicey’s (1914) terms as a shift from individualism to collectivism or in Roscoe Pound’s (1909) notion of a move from negative liberty to positive liberty or in John Dewey’s (1935) ideas about the progression from old to new liberalism, this interpretation emphasizes the great transformation from nineteenth-century laissez-faire to the twentieth-century general welfare state.

back to: The Delegation of Legislative Powers 

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