Just as Chevron was an iconic decision marking the rise of the administrative state, so its relative decline is also a powerful symbol.
Progressives use laws and regulations as a means of narrowing the social space in which individuals and groups make choices. The objective is moral in nature and Progressives take freedom, of a certain sort, very seriously. The highest liberty is to do what is right and good and therefore they believe that an extensive, detailed, objective, and rational, legal (and regulatory) system is a necessary component in nudging people to their freedom. Working in tandem with a national media that presents a vision of a redeemed community, and a progressive educational system in which children internalize the moral vision of the national community (a subject I explored here), a comprehensive legal structure guides, shapes, and reminds citizens about virtuous living.
Much about the Progressive version of moralized politics is deeply American. Colonial New England towns, famously, created largely voluntary communities of like-minded souls who infused their politics with a moral fervor to create a redeemed community. Like today’s Progressives, our Puritan forefathers believed that true liberty issues from right-thinking and right-feeling. Similarly they asserted that a redeemed community imposes on itself a regulatory system that expresses the truths about correct individual behavior and the proper relationship between individuals and the community. In Colonial New England, however, this moral-political impulse found expression primarily in towns and while each town produced amazing uniformity within (with a bit of democratic totalitarianism), they did so by allowing great diversity among towns. They distributed freedom to towns and, to a certain degree, to individuals who can choose which community to join.
Scale matters a great deal when it comes to moralism, laws and community. At the town level (meaning, again, the archetypical Puritan New England town) citizens participate in very direct ways to craft the laws that govern them and they take a special pride in such civic participation. The very distinctiveness of each town’s laws produces a unique town culture and therefore pride of place. Any moral frenzy to purify a town leaves adjacent towns untouched and free—even as such efforts tend to sort out populations based on beliefs or values. Each town indulges in their own distinct version of the purified town and, more often than they recognize, in their peculiar manifestations of human folly. For better or worse, these towns were capable of being real communities because they invested the citizens in a collective and often moralistic enterprise in which individuals granted the prior importance to the group. In such communities, the individual’s purpose and identity reflects her relationship with the town.
We have much to be worried about in communities where a morally unified and ideologically driven citizenry passes ever more detailed laws to regulate behavior. But when governments of large and diverse nations adopt legal and regulatory means to purify the nation, to redeem its citizens, and to express its moral vision, it does so with the power of the administrative state rather than the authority of a self-governing citizenry. The most legalistic Puritan community was also democratic and its laws reflected the consensus of a self-ruling people. The citizens of this community had largely internalized their moral views and operated, individually, according to these maxims. As self-governing people they found no threat to their individual liberty by expressing their shared values in laws and rules of conduct. The dynamic is very different when the government of a large and diverse nation approaches its laws and regulations as a means of creating a “national community.” Based on the vision of a virtuous national community, the administrative state produces ever more “penetrating and minute” (to use Robert Nisbet’s phrase) regulations in order to “relieve groups and persons of the trouble of making important decisions.” Indeed, the effect of a legal and regulatory regime that seeks to be comprehensive is to provide the outside guidance for individuals who otherwise would have to learn the habits of self-governance. In one sense a more “penetrating and minute” legal system suggests a population that is not given to self-control, but more importantly it fosters a kind of atomistic society in which force or power, rather than shared communal values, serves as the glue.
In Robert Nisbet’s classic, The Quest for Community, order and liberty are first of all social, rather than political or legal, constructions. When the social space for associations is vast and when persons live and find their meanings in the tangle of various, sometimes competing, institutions and authorities, individuals are so deeply imbedded socially that no single power can overawe them. A complex, particularistic skein of associations and authorities offers the very interstices in which liberty can thrive—where individuals and groups craft authentic identities. In such contexts, laws emerge from custom, from usage, from experience, rather than from an abstract moral code. The range of influences, restrictions, and guidance in such a social order is dramatically greater than a formal legal system can provide, allowing multiple gradations of authority found in traditions, customs, and in competing associations.
Nisbet argued that the legal foundation of the modern nation state rests on the military power of the sovereign to enforce a single law—the law of the state. Over time the state absorbs the power previously scattered among social institutions and seeks to establish order based on a single source of legitimate power. The state brings uniformity and conformity where once there existed diversity and layered authority. In the most extreme example of the modern state, the goal is to produce a detailed legal system that offers rational, abstract and universal rules for behavior that guide individuals in the most personal and intimate parts of their lives. Certainly, the more successful a state is in destroying the authority and roles of institutions like family, church, guild and voluntary associations, the more pressing is the need for a comprehensive administrative state.
Promiscuous law-making and regulation ought not be confused with the rule of law. The Progressive project to legislate a just order cedes power to a few men and women to make any number of laws consistent with their conception of justice—it is a matter of power as valorized and vitalized by a moral vision. Recent political debates about the nature and role of the US Constitution expose some of these distinctions between those who think of the Law as something that limits as well as empowers and those who think of legislation and regulation as means of transforming a nation that might otherwise be limited by an outdated moral vision.
Nisbet warned that a nation is incapable of being a healthy community (as opposed to containing many healthy communities) and yet that the yearning for community is so great that if we lose our healthy, particularistic, local, and socially rooted communities, we will find the impulse toward Leviathan seductive and powerful. Unless a people truly love their small world—the local, distinctive, particular and often weird communities in which they live—and are willing to accept that a redeemed order is not possible, that justice is elusive and partial, they will find the pure, abstract justice-narrative of Progressives or other moralists compelling. When the imperfect communities of our individual lives no longer foster in us the habits of self-rule and the jealous regard of what is shared with neighbors and ancestors, the abstract ideal of universal justice will give us great moral comfort as we choose the subjection of the administrative state.