Book Review

Administration and Legal Orthodoxy: A Review of Tocqueville’s Nightmare

The following review is by Noah Rosenblum, a JD candidate at Yale and a Ph.D. candidate at Columbia. His research into the intellectual history of the law and American legal systems contributes much needed insight into a rarefied area of history too often left to scholars in law schools.

Daniel Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (New York: Oxford University Press, 2014)

In 1888, in his inaugural lecture as Downing Professor, the eminent English jurist F.W. Maitland lamented the paradox of legal history. “The lawyer must be orthodox, otherwise he is no lawyer; [but] an orthodox history seems to me a contradiction in terms.”
The ravages of Maitland’s paradox are still with us. As Andrew Porwancher has written in these pages, law schools and history departments can feel separated by an abyss. Their literatures are organized differently. They have differing sensibilities about normative argument. And, at a very basic level, they can have opposing relationships to historicization. For intellectual historians, situating ideas in time enriches our understanding of them; the best intellectual historians marry internalist and externalist accounts to contextualize ideas without reducing them to their surroundings. But in the law school, where even the legal historian is still a lawyer, a contextualist account risks undermining the dogmatic authority of doctrine.tocquevillenightmare

Alas, then, for the plight of intellectual legal history! A consequential space of ideas in action, its interest to the broader historical community should be obvious. A technical field, with its own specific language and practices, it calls for the guidance of an expert hand. And yet, the very orthodoxy that helps make it significant constrains those who know how to move within it, closing off to others the historical interest it excites.

Against the backdrop of such difficulties, the brilliant success of Daniel Ernst’s Tocqueville’s Nightmare shines only more brightly. A short book with a big argument, it deftly uses a technical history of legal ideas to take on one of the central problems of twentieth century history: the legitimacy of the modern American state.
Ernst’s question is deceptively modest. How, he asks, did American law accommodate itself to the rise of the administrative state? That it would do so was not a foregone conclusion. Administration, as Progressive advocates like Woodrow Wilson recognized, was at base a European state-form. And although some, like Wilson, believed it could be reset on American legal foundations, others were skeptical. In his highly influential Introduction to the Study of the Law of the Constitution, the Oxford law professor A.V. Dicey argued that European-style administration was incompatible with Anglo-American common law. For Dicey, the rule of law required that government regulatory action be open to review by ordinary courts, which were to make their own findings of fact and apply their own judgments. Such an understanding deprived administration of any legitimacy of its own, subjugating administrators to courts.

American lawyers and statesmen largely subscribed to this administration-inhibiting Diceyism well into the first decades of the twentieth century. And yet, in spite of these commitments, in a few years in the 1930s, the federal government erected a massive administrative structure, fundamentally reshaping the nature of the American state. How had this become possible? What had changed?
Ernst unfolds his answer in measured, elegant prose, through two interrelated stories—one technical, for specialists, the other accessible, and of interest to all historians of American political ideas.

The technical story first. As a legal matter, the challenge of the administrative state can be understood as a problem of judicial review. Many American lawyers and statesmen were great fans of administration, at least in principle. The corporate bar liked the way it took complicated decisions away from corrupt legislatures and gave them to trained commissioners. Administration could be expert and predictable, by contrast with idiosyncratic and inefficient common-law adjudication. The legal issue, then, wasn’t to make the case for administration, but to reconcile it with a Diceyist commitment to judicial supremacy.

Ernst credits Charles Evans Hughes with developing the solution. Hughes was perfectly placed to do it. A one-time reform governor of New York and twice a Supreme Court Justice, he had a deep appreciation for both administration and common-law courts. His reconciliation relied on progressively restricting the space of judicial review by looking behind Diceyism to the values it embodied. Dicey demanded that courts have full oversight powers because of his conviction that they were best positioned to protect fundamental rights. But, as Hughes saw, if courts could ensure that administrative agencies offered adequate rights-protection, there would be less need for judicial review. As Ernst pithily summarizes Hughes’ view: as long as a petitioner got her day in commission, she didn’t also deserve a day in court.

Hughes turned this insight into law through a series of transformative judicial opinions, which Ernst reconstructs through a careful analysis of court cases and correspondence. But, by situating those decisions in political context—including the vaguely remembered 1940 fight over the Walter-Logan Bill and the even more obscure 1938 New York electoral campaign—Ernst demonstrates that this shift in doctrine indexed a broader transformation in Americans’ understanding of the rule of law. This is the generalist’s story. By the end of the New Deal, Americans from many different backgrounds had come to share Hughes’ vision. For them, the rule of law no longer meant that all administrative decisions needed to be subject to review in ordinary courts. Rather, it required that government adjudication, wherever it happened, observe court-like processes to respect fundamental rights. Courts, in this new regime, remained supreme, but the nature of their supremacy had changed. No longer in charge of deciding every case, they were now responsible for monitoring the processes by which cases were decided—guaranteeing “due process” of law.

These two stories make an important contribution to legal history by illuminating the deep roots of the legitimacy of the American administrative state. But Tocqueville’s Nightmare also intervenes in historiographies far afield from the law. It fills out American Political Development accounts about the construction of the federal government. It gives a new twist to Daniel Rodgers’ questions about the ways the United States adapted European social policy, showing how important American legal culture was in translating reform ideas across the Atlantic. And it adds a new strand to longstanding debates about the character—liberal or otherwise—of the American political tradition by pointing us to a new field of inquiry: the changing character of Americans’ understanding of the idea of the rule of law.

But, at least for readers of this blog, I think its most important contribution is in showing how to bridge intellectual and legal history. Ernst elaborates his story by shifting between multiple levels of analysis through the use of a bewildering variety of sources from some sixty different archives, including court transcripts, private letters, oral histories, campaign materials, voting records, committee minutes and debates, published speeches, and scholarly articles. So doing allows him to reconstruct the evolution of the law and show how it ramified. By explicating how technical legal problems emerged from—and in turn affected—their immediate political environment, Ernst unfolds the dialectical relationship between ideas and context without reducing one to the other. He historicizes doctrine without undermining it; this is a book equally at home in a law school or a history department.

Lucky us. Intellectual historians should hope for more work like this. With such scholars as guides, we may yet find our way through Maitland’s paradox unscathed.