The Founders, the Constitution, and Public Administration

A Conflict in World Views

Michael W. Spicer

• Publisher: Georgetown University Press
• Year: 1995
• Print ISBN: 9780878405824, 9780878405817
• eBook ISBN: 9781589018723
• Topic: Politica e relazioni internazionali
• Subtopic: Affari pubblici e amministrazione

Viewed alternately as an obstacle to justice, an impediment to efficient government, and a tool by which some groups gain benefits and privileges at the expense of others, public administration threatens to become the whipping boy of American government. In this innovative look at the nation's bureaucracy, Michael W. Spicer revisits the values of the Constitution in order to reconcile the administrative state to its many critics.

Drawing on political and social philosophy, Spicer argues that there is a fundamental philosophical conflict over the role of reason in society between writers in public administration and the designers of the American Constitution. This examination of worldviews illuminates the problem that American government faces in trying to ground a legitimate public administration in the Constitution. Defending and developing the Founders' idea that political power, whatever its source, must be checked, he critically examines existing ideas about the role of public administration in American governance and offers an alternative vision of public administration more in line with the Founders' constitutional design. This book will provide fresh insights for anyone interested in the role of public administration in the United States today.

1
Introduction: The Uneasy Status of Public Administration

Americans have traditionally viewed public administrators with, at best, ambivalent feelings. Americans have never quite been comfortable with the large and powerful administrative apparatus that Europeans view as necessary and even desirable in a modern democratic state. The very terms “bureaucracy” and “bureaucrat” have almost always brought to mind negative and often conflicting images in American culture. The media, as public administration writer Charles Goodsell (1985) has noted, portrays the bureaucrat “as lazy or snarling, or both … as bungling or inhumane, or both” and “the bureaucracy … as over-staffed, inflexible, unresponsive, and power-hungry, all at once” (2). This antipathy towards bureaucracy is not simply confined to the popular culture. Goodsell observes that academics from a wide variety of disciplines, including economics, political science, sociology, and organization theory have charged bureaucracy with a variety of crimes including “failure to perform; abuse of political power; and repression of employees, clients, and people in general” (11). Bureaucracy is, as Goodsell puts it, the “splendid hate object” of American culture (11).

Neither has the growth of government since World War II done much to improve the regard in which public administration is held. Terence Mitchell and William Scott (1987) have noted from opinion polls increasing public distrust and lack of confidence in American administrative leadership. They write of “a prolonged waning confidence of the public in its leadership that seems to cut across the major segments of the administrative state” (445). Mitchell and Scott argue that this change in confidence is not simply a generalized discontent with jobs, institutions, or life. “Rather, the leadership elite of the administrative state is in question” (446). This lack of confidence in the administrative state has fueled the growth of “bureaucrat-bashing” in political campaigns in the 1970s, 1980s, and 1990s. Lack of public confidence in public administration is further shown by the uncritical way in which the findings of the Grace Commission and its tales of overpriced hammers, toilet seats, and screws have found their way into the popular culture.

Herbert Kaufman (1981) has, with some justification, characterized the current antipathy toward public administration as a “raging pandemic.” He notes that “more and more people are apparently convinced that bureaucracy is whirling out of control and are both infuriated and terrified by the prospect” (1). The history of the modern state has been characterized, in the words of James Freedman (1978), “by an extended sense of crisis” (9). Americans are uneasy about what role public administration ought to play in their constitutional system of government. Public administration, in other words, lacks legitimacy.

THE LACK OF LEGITIMACY OF PUBLIC ADMINISTRATION

By legitimacy here, I do not mean simply legality. Certainly, as Kenneth Warren (1993) argues, the administrative state is legal. The federal courts have never seriously questioned the legality of delegation of authority to administrative agencies by Congress since the 1930s. Legitimacy, however, means more than simply conformity to law. It also means conformity to the broadly accepted principles or rules and customs of a political and social order. In this broader sense, it is not at all obvious that Americans generally believe that the administrative state is legitimate.

We do not seem to know or agree on what it is that we want public administrators to be or do within our system of government. We seem unable to accept, in principle, the notion that an unelected body, apart from the courts, should have the authority to exercise independent discretionary power over others. Public administration is seen, at best, as a necessary evil in carrying out the public demand for services as expressed through its elected representatives and, at worst, as a self-serving obstacle to the effective provision of such services. Unlike our elected officials and our courts, public administrators are not seen as legitimately exercising any independent influence within the process of government. Observers of government recognize and often accept the existence and even the inevitability of independent administrative action, but they rarely defend it or endorse it on normative grounds.

Earlier in our history, public administrators could perhaps draw some legitimacy from their perceived role as experts in matters of public policy and administration. Woodrow Wilson (1955) saw the possibility of a science of administration that would “seek to straighten the paths of government, to make its business less unbusinesslike, to strengthen and purify its organization and to crown its duties with dutifulness” (6). However, the growth of competing sources of policy expertise in think tanks, consulting firms, universities, congressional staffs, and elsewhere has destroyed whatever monopoly of expertise that public administrators have had in this area. As Aaron Wildavsky (1988) pointed out, this has meant that “virtually everything that officials can say based on their expertise can be contradicted with conviction by these analysts” (753). Francis Rourke (1992) similarly argues that “expertise on public policy issues is now commonly seen as flourishing as abundantly in the outside world as it does within government itself” (540).

Furthermore, the contribution of the modern social sciences, upon which many public administrators depend for their expertise, has frankly been disappointing at least to those who have hoped for a more precise science of public policy and administration. Despite the technical sophistication of much social science modeling, attempts by social scientists to emulate both the generality and the precision of the natural sciences have fallen short. Mitchell and Scott (1987) note that the social sciences have not been able to produce “law-like generalizations which would apply to such major issues as policy formulation, decision making, and strategy” (447). Charles Lindblom (1990) argues even more forcibly that there is an “absence of undeniable evidence” in the social sciences and suggests that it is difficult to “identify a single social science finding or idea that is undeniably indispensable to any social task or effort” (136). The social sciences do not seem to have produced any clearly visible or indisputable improvements in the efficacy and efficiency of government. They have not proven able to provide the knowledge required to cure the social ills of poverty, ignorance, crime, violence, and misery or the political ills of corruption, waste, and abuse of power. Indeed, their prescriptions in the minds of many have seemed often to compound these ills. In light of the limitations of the social sciences, it is difficult then for public administrators to seek legitimacy on the basis of expertise.

The lack of legitimacy of public administration has also, in all likelihood, been exacerbated in the past two decades or so by increasingly sharp ideological divisions in American society. Various factions from both the left and right of the political spectrum seem to state their positions in increasingly strident and uncompromising tones. Issues are increasingly defined or framed in non-negotiable terms. Aaron Wildavsky (1988) wrote of an “ideological dissensus within the political spectrum” involving “profound disagreements over equality, democracy, and hence the role of government, disagreements that create conflicting expectations that no conceivable cadre of civil servants can meet” (753). In the field of environmental policy, for example, public administrators are seen depending on one’s ideological perspective as environmental zealots or as puppets of industrial and commercial interests. Because of this type of sharp ideological dissensus, it becomes increasingly difficult to define an acceptable role for public administration.

Whatever they do, public administrators cannot win. They are caught in an ideological cross fire in which media discourse often seems to resemble a form of legalized blood sport rather than an open and civil exchange of ideas. In the absence of consensus surrounding the role of government, bureaucracy becomes increasingly seen simply as a tool by which some groups gain benefits and privileges at the expense of others. Many conservatives in the 1980s viewed public administrators as an obstacle to their attempts to increase liberty and to reduce taxation and government regulation, which they believed were wrecking the economy. Many liberals, in contrast, saw public administration as preserving and reinforcing existing social and economic inequities, as perpetuating economic oppression. They blamed it for the failures of their grand schemes to yield hoped-for results. In such a divisive and hostile ideological climate, it is hardly surprising that whatever legitimacy public administration once had should wither on the vine.

WHY WORRY ABOUT LEGITIMACY?

One may reasonably ask why we should worry over this lack of legitimacy of the administrative state. After all, despite all our complaints about bureaucracy, most Americans do not seem ready to give up big government or to support draconian cuts in public spending programs. Indeed, despite publicity over public spending cuts, public spending continues to grow annually by hundreds of billions of dollars. Current political debate over public spending typically centers on how fast it should grow rather than whether or not it should grow. The administrative state seems, therefore, in no immediate danger of running out of resources. As Mitchell and Scott (1987) argue, so long as government goods and services reach most people, citizens “may cynically withhold trust but support the current structure of the administrative state” (451). If all that lack of legitimacy entails is a few bruised bureaucratic egos, then many may see it as little to lose sleep over.

However, there is probably more to lack of legitimacy than simply bruised bureaucratic egos. Lack of administrative legitimacy can have real costs. Firstly, a perception that public administration is not legitimate can reduce the ability of the administrative state to recruit and retain talented young men and women so that the competence and effectiveness of public service suffers. Evidence collected by the National Commission on the Public Service (1989) seems to confirm that the poor public image of government service has hindered the recruitment and retention of personnel. According to a survey of top graduates undertaken by the Commission, “the public service is not perceived as a place where talented people can get ahead” and very few graduates see a federal job as “challenging and intellectually stimulating” (26). Secondly, lack of administrative legitimacy can undermine the morale of public administrators and reduce their productivity. There is evidence, for example, of increased turnover in the federal service that may, in part, be a result of the declining image of public service (National Commission on the Public Service 1989; Rosen 1983). Such turnover means that knowledge and experience within the service is lost so that again competence and effectiveness suffer.

Thirdly, the perceived lack of legitimacy of public administration can encourage political leaders to impose overly restrictive controls on public administrators that hamper their flexibility and raise the costs of providing services to taxpayers. This is not to deny that rules and procedures are necessary to restrain misuse of resources or abuse of power. To the contrary, as I shall argue in this book, they are crucial. Lack of confidence, however, can help breed a heavy-handed type of “micro-management” that stifles effective administrative action and is counterproductive. Finally, lack of administrative legitimacy can contribute to the erosion of public respect for the law, from paying taxes to observing speed limits. For most citizens, public bureaucracy provides their most important, their most immediate, and sometimes their only encounter with government and the law. As a result, their attitudes toward government and law are inevitably colored by attitudes toward public administrators.

A democratic government, while possessing substantial powers of coercion, must rely heavily on the goodwill and voluntary compliance of citizens in carrying out the law. Without such voluntary compliance, we face the prospect of either an ineffective government or an overly intrusive government. Lack of public respect for the law can then both hamper effective government and reduce the liberty available to citizens.

PUBLIC ADMINISTRATION AND THE U.S. CONSTITUTION

In light of the problem of legitimacy for public administration, it is perhaps to be expected that the constitutional bicentennial in the United States has seen a renewed interest in the relationship between constitutional theory and the structure and process of public administration (Stillman 1987). The Founders, perhaps surprisingly, had little to say specifically on the matter of public administration. However, there has been much discussion and informed speculation as to what type of public administration might be implied by their writings, debates, and actions. Various authors, perhaps most notably John Rohr (1986) and his colleagues at the Blacksburg School (Wamsley et al. 1990), have sought legitimacy for the modern administrative state in the expressed views of the Founders. They have argued that an active and energetic administrative state can be justified on the basis of the writings of the Founders.

Rohr (1986) bases his case for the legitimacy of the administrative state on the “great political argument of 1787/1788” between the Federalists and the Anti-federalists (9). Rohr seeks to demonstrate that the blending of executive, legislative, and judicial powers found in many administrative agencies is by no means inconsistent with the Founders’ idea of a separation of powers. He notes that the Founders intended a sharing of powers rather than a rigid separation of powers. Rohr further argues that the administrative state legitimately performs a function originally intended for the U.S. Senate. He sees public administration as providing a continuity and stability to American governance and as exercising a balancing role between the different constitutional branches of government. Also, in Rohr’s view, the administrative state provides a remedy to the limits on representation provided by the House of Representatives. He notes the broadly representative character of American bureaucracy. As a result, Rohr interprets the Founders’ work as empowering modern public administrators to play an independent constitutional role by choosing among their constitutional masters, who may sometimes be in conflict with one another. Rohr concludes by noting that “the administrative state is a plausible expression of the constitutional order envisioned in the great public argument at the time of the founding of the Republic” (181).

David Hart (1989), taking perhaps an even more ambitious and more romantic interpretation, sees the Constitution as promoting an ethos of “civic humanism,” based on love of others. He argues that civil servants should take moral leadership in establishing a “partnership in virtue among all citizens.” Hart argues that the Founders’ writings can be taken as a basis for obliging public administrators to “form and express independent moral (and technical judgements) about the work they do” and for encouraging them “to exercise discernment, rather than a routine application of rules” (103). He believes that the Founders’ work implies an obligation for public administrators “to persuade both citizens and colleagues to do the right” and to act themselves as exemplars of civic virtue and courage (103).

These types of attempts to legitimate a substantial constitutional role for public administration in terms of the thought of the Founders are understandable. As Irving Kristol (1987) has suggested, the U.S. Constitution has, along with the flag and Declaration of Independence, acquired an almost sacramental status in the eyes of most citizens. Kristol argues that “there is a spirit of the Constitution, enveloping the text and transforming it into a covenanting document, a pillar of the American civil religion” (5). Similarly, Rohr (1986) states that “the Constitution is more than a legal document: it is covenant as well as contract” (x). By seeking to ground public administration in constitutional principles, these authors and others attempt to draw upon the public affection and respect accorded to the Founders’ work. To the extent that an active role in governance for public administration can be justified in a convincing fashion by the Constitution, the more likely it is that such a role will be seen as legitimate.

Furthermore, these attempts make a great deal of sense. Attempts to legitimate public administration must draw on rather than ignore the cultural and political history of the nation. It is important that public administration writers should seek legitimacy for American public administration in terms of political values that are characteristically, although by no means exclusively, American. As Rohr (1993) notes, “The case for public administration should run with the grain of the American political culture, not against it” (246). The Constitution helps establish the “rules of the game” by which Americans conduct their public affairs. It is crucial that the role of public administration be defined in a manner that is consistent with those rules if it is to be seen as legitimate. Certainly, a public administration that acts outside of those rules is unlikely to be seen as legitimate.

CRITICS OF THE CONSTITUTION

However, this love affair between writers in public administration and the Constitution has been relatively recent and, even now, is not universally shared. Public administration writers in the early twentieth century were frequently critical of the Constitution, particularly with regard to the separation of powers. Woodrow Wilson (1956), Frank Goodnow (1900), and W. F. Willoughby (1927), for example, all saw the separation of powers as a constitutional defect. They saw it as an obstacle to effective government and administrative action. Indeed, Wilson, influenced by the British scholar Walter Bagehot, even went so far as to favor constitutional reform along the lines of the British parliamentary system. While backing away from this later in his career, Wilson (1956), nonetheless, argued that “the federal government lacks strength because its powers are divided, lacks promptness because its authorities are multiplied, lacks wieldiness because its processes are roundabout, lacks efficiency because its responsibility is indistinct and its action without competent direction” (206).

This hostility of many early public administration scholars to the separation of powers was typical of most progressive writers of this era such as Charles Beard (1941), who suggested that the Constitution was little more than an attempt to protect the economic interests of the propertied classes. Beard, a political scientist, was himself, interestingly enough, active in the early public administration movement. However, the critical stance of public administration writers toward the Constitution has endured beyond the heady days of the progressive era. Recently, Lynton Caldwell (1976) has suggested that our constitutional heritage may, in fact, be inadequate in light of the contemporary challenges facing government. According to Caldwell, “It has not been excess of power but defect of responsibility that has most threatened the national welfare” (487).

Richard Stillman (1989), perhaps the sharpest of the contemporary critics, argues against the notion that the state must be “chained and immobilized to the ancient verities of the Founding Fathers” and cautions against “clinging to antiquated republican solutions for contemporary governance” (84). Because of the emphasis of the Constitution on the need to check power, Stillman (1991) sees it as promoting a “stateless” polity. He views it as impeding effective government action and unduly restricting our thinking about public administration and its importance to public welfare. According to Stillman (1991), our preference for “statelessness” not only “creates problems for building effective public administration institutions in the United States but imposes serious blinders on our capacity to think realistically about contemporary public administration theory” (40).

Taking perhaps an even more radical tack, Guy Adams and his colleagues (1990) at Evergreen State College are sharply critical of what they see as the Founders’ vision of democracy. Echoing Beard, they argue that “the Constitution confirmed an entire social order embracing specific political/economic relations, private/public divisions, power configurations and developmental directions—and simultaneously disallowed others” (222–223). These authors reject the Founders’ liberal and procedural notion of democracy. They call for a “full democracy” that would emphasize common needs and give attention to equality of outcomes for citizens. Like earlier writers, Adams and his colleagues believe that constitutional values impede effective administrative action. They note that, because of an excessive emphasis on these values, “responsiveness and accountability have become profoundly problematic, and tendencies of stasis and drift, engendered by the dynamics of interest group politics, have brought into question the very governability of the modern state” (231).

In quite sharp contrast to Rohr and Hart then, many writers in public administration have been quite critical of the Constitution and have seen it as a constraint on the actions of an effective administrative state. What these criticisms suggest is more than mere differences over the details of constitutional design. Rather, they indicate that many public administration writers may in fact view the world quite differently than did the Founders. This idea is lent some cred...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• 1 Introduction: The Uneasy Status of Public Administration
• 2 Rationalist and Anti-rationalist Worldviews
• 3 The Worldviews of Public Administration and the Constitution
• 4 On the Checking of Power: The Logic of a Constitution
• 5 Visions of Public Administration
• 6 An Anti-rationalist Vision of Public Administration
• 7 The Ethics of Administrative Discretion
• 8 Summary and Conclusion
• References
• Index