Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940

by Daniel R. Ernst

Overview

In the 1830s, the French aristocrat Alexis de Tocqueville warned that "insufferable despotism" would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that, after a great wrong turn in the early twentieth century, Tocqueville's nightmare has come true. In those years, it seems, a group of radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom.

In Tocqueville's Nightmare, Daniel R. Ernst destroys this ahistorical and simplistic narrative. He shows that, in fact, the nation's best corporate lawyers were among the creators of "commission government" that supporters were more interested in purging government of corruption than creating a socialist utopia, and that the principles of individual rights, limited government, and due process were built into the administrative state. Far from following "un-American" models, American state-builders rejected the leading European scheme for constraining government, the Rechtsstaat (a state of rules). Instead, they looked to an Anglo-American tradition that equated the rule of law with the rule of courts and counted on judges to review the bases for administrators' decisions. Soon, however, even judges realized that strict judicial review shifted to courts decisions best left to experts. The most masterful judges, including Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941, ultimately decided that a "day in court" was unnecessary if individuals had already had a "day in commission" where the fundamentals of due process and fair play prevailed. This procedural notion of the rule of law not only solved the judges' puzzle of reconciling bureaucracy and freedom. It also assured lawyers that their expertise in the ways of the courts would remain valuable, and professional politicians that presidents would not use administratively distributed largess as an independent source of political power.

Tocqueville's nightmare has not come to pass. Instead, the American administrative state is a restrained and elegant solution to a thorny problem, and it remains in place to this day.

Product Details

ISBN-13:	9780199920860
Publisher:	Oxford University Press
Publication date:	05/21/2014
Edition description:	New Edition
Pages:	240
Product dimensions:	6.00(w) x 9.30(h) x 0.90(d)

About the Author

Daniel R. Ernst has been a member of the faculty of the Georgetown University Law Center since 1988. His first book, Lawyers against Labor, won the Littleton-Griswold Award of the American Historical Association. He has been a John Simon Guggenheim Memorial Foundation Fellow, a Fulbright Research Scholar at the National Library of New Zealand, and a co-editor of "Studies in Legal History" a book series sponsored by the American Society for Legal History. He writes on the political history of American legal institutions.

Table of Contents

Introduction: Tocqueville's Nightmare
Freund and Frankfurter
Hughes
Chief Justice Hughes
New York, 1938
Pound and Frank
Conclusion: Good Administration
Acknowledgments
Abbreviations for Sources Consulted

Editorial Reviews

"Illuminating" - Thomas Meany, Nation

"Daniel Ernst provides a wonderfully rich and subtly revisionist account of one of the crucial eras in the development of American administrative law. The meat he puts on the bones of apparently arid doctrinal disputes both reveals why administrative law has been and remains a sharply contested battleground in American political development and gives us a brilliant account of what 'American exceptionalism' really entails." —Jerry L. Mashaw, Sterling Professor of Law, Yale University

"In this masterful study, Daniel Ernst shows how judges and lawyers in government and private practice constructed the modern American administrative state in the first decades of the twentieth century, reshaping the protean ideal of the rule of law so that law and government institutions supported each other in overcoming constitutional objections to the nightmare of a monstrous bureaucratic state. His account seamlessly integrates ideas, cases, and politics into a compelling explanation for the constitutional world the New Deal created." —Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

"The conventional narrative of the origins of administrative agencies and administrative law in early twentieth-century America has emphasized similarities between American and Western European agencies of the state and has associated the emergence of agencies with the triumph of collectivist ideologies of governance in the United States. Tocqueville's Nightmare demonstrates that the process was far more complicated. Building on recent revisionist work by early twentieth-century legal and constitutional historians, Daniel Ernst has put forth an account of the growth of the American administrative state that reveals the limitations of conventional wisdom and is likely to become authoritative." —G. Edward White, David and Mary Harrison Distinguished Professor of Law and University Professor, University of Virginia School of Law

"He has penned a welcome addition to the libraries of those interested in the legal history of the administrative state and in the still-relevant jurisprudential questions surrounding judicial deference to administrative decisions."-Trevor Burrus, Regulation

"No future analysis of the development of American administrative government will credibly proceed without having taken stock of Ernst's well-crafted study." - Daniel Carpenter, Harvard University

"In Tocqueville's Nightmare, Ernst delivers a pathbreaking account of how politically moderate, early twentieth-century lawyers first confronted, then transformed, and finally secured the legitimacy of the administrative state. The book is a canonical contribution to the scholarly effort to normalize American administrative government." -Jeremy K. Kessler, Harvard Law Review

From the Publisher