Between Public Law and Public Sphere: Reconstructing the American Progressive Theory of the Administrative State

This dissertation develops a normative theory of the American administrative state on the basis of Hegelian and American Progressive political thought. I reconstruct the substantive and procedural commitments of the American state from its intellectual history and institutional development. The basic principle I recover from this history is that the state must make the public sphere politically efficacious.;I begin by tracing German understandings of the state which heavily influenced certain American Progressives. G.W.F. Hegel, and the German public law scholars who followed in his footsteps, understood the modern state to have an emancipatory function. The public bureaucracy would institute the requirements of freedom through market regulation and social welfare provision. This German Hegelian theory of the state was not, however, democratic. Reflecting the failures of the Revolution of 1848 and the subsequent entrenchment of constitutional monarchy in the German states, Hegelian public law scholars sought only to free individuals from conditions of domination within civil society, not to enable the people as a whole to author the laws that bind them. This amalgam of liberal social aims and authoritarian state structure gave way to a crisis-prone, president-centered regime during the Weimar Republic.;American Progressives were deeply influenced by the Hegelian political thought, but they radically revised this German conception of statehood by democratizing it. W.E.B. Du Bois, Woodrow Wilson, John Dewey, Mary Parker Follett, and Frank Goodnow each engaged with German Hegelian thinkers in their efforts to imagine and legitimate bureaucratic institutions that would be appropriate for the American democratic context. Like Hegel, they defended administrative efforts to promote individual freedom. But they departed from the German tradition in emphasizing that administration must be rooted in popular sovereignty. The Hegelian Progressive theory that emerges from these writers has two normative requirements: The state must furnish the material and social requisites for individual and collective autonomy, and it must use participatory forms of administration to deliver these requisites.;This Progressive conception of democratic statehood provides a coherent perspective from which to assess and critique the legitimacy of our contemporary political order. The state's substantive aim should be to protect individual and collective autonomy against the unequal circulation of information and power in civil society. The state should carry out this aim procedurally through the "discursive separation of powers," which treats each branch of the federal government as an approximate institutionalization of the public. The political branches---the executive and the legislature---have only a qualified claim to represent the popular sovereign, because they lack complete information about the problems members of the public perceive. Their qualified authority must therefore be augmented through deliberative forms of administration, which bring the people back into the policy-making process when laws are implemented. The judicial branch must police this process to ensure that administrative agencies recognize the "public rights" which are established by statutory law and rooted in public discourse.;To demonstrate how this Progressive conception of the state functions in practice, I turn to the New Deal and the Civil Rights Revolution. New Deal agricultural agencies partially realized Progressive ideals through subsidies for marginal farmers and participatory forms of land-use planning. These reforms wrought social changes which contributed to the formation of the civil rights movement. I then show how administrative agencies in the War on Poverty furthered radical forms of participatory governance, while civil rights agencies operationalized the discursive separation of powers in combatting segregation.;Our contemporary state continues to follow this Progressive vision in many respects, but serious problems remain: affected parties do not participate equally in the administrative process; the president sometimes supplants broad public discourse with unilateral executive action; courts and agencies often deploy a technocratic mode of analysis that fails to foster ethical judgment by administrators and value-based argument with the affected public. Despite these institutional failures, the Progressive theory continues to provide a normatively attractive vision for administrative legitimacy. It avoids the narrow economistic reasoning of cost-benefits analysis and the unstable politics of plebiscitary democracy. This theory helps us to separate illegitimate from legitimate exercises of state power in the present, on topics ranging from climate change to immigration reform. By recovering the ethical content of the institutions that have evolved from Progressive political thought, we may better realize the democratic forms and functions of our state.