Originalism, the Administrative State, and the Clash of Political Theories

Abstract

The administrative state is not just premised on a view about what the Constitution means; it is premised on a view about the nature of politics and, in turn, the nature of human beings. The forceful pushback against the administrative state that we have seen unfold over the last three months represents a quite different view about what the Constitution means, and it therefore rests on quite different premises about politics and human nature. In short, originalists’ rejection of the administrative state is not just the result of a disagreement with living constitutionalism’s understanding of our fundamental positive law; it is also a disagreement with the political theory undergirding living constitutionalism and the administrative state.

In laying out that argument, I will proceed in three parts. First, I will show how the main pillars of the administrative state reflect certain progressive politico-theoretical commitments. Second, I will describe an alternative set of politico-theoretical commitments that are often associated with opposition to the administrative state. Finally, I will show how living constitutionalism is the natural extension of the political theory supporting the administrative state and, conversely, how the politico-theoretical commitments opposed to the administrative state find a natural home in originalism as an approach to constitutional theory.

The upshot is that, if President Trump’s transformation of American government succeeds, it will be because the same principles that motivate opposition to the administrative state as a matter of political theory are consistent with the principles that will motivate an originalist Supreme Court to sustain that transformation as a matter of constitutional law. The stakes of this battle over the next few years go beyond a dispute about our positive law; they go to deep questions of political theory.

Keywords: originalism, administrative state, living constitutionalism, progressivism, Woodrow Wilson, Michael Oakeshott