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Volumn 24, Issue 1, 2007, Pages 16-54

The progressive origins of the administrative state: Wilson, Goodnow, and Landis

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EID: 34247479125     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S0265052507070021     Document Type: Article
Times cited : (27)

References (179)
  • 1
    • 34247493465 scopus 로고    scopus 로고
    • By administrative state, I refer to the situation in contemporary American government, created largely although not entirely by Franklin Roosevelt's New Deal, whereby a large bureaucracy is empowered with significant governing authority. Nominally, the agencies comprising the bureaucracy reside within the executive branch, but their powers transcend the traditional boundaries of executive power to include both legislative and judicial functions; these powers are often exercised in a manner largely independent of presidential control and of political control altogether. Given the vast array of activities in which the national government has involved itself in the post-New Deal era, the political branches of government have come to rely heavily on the expertise of bureaucratic agencies, often ceding to them significant responsibility to set, execute, and adjudicate national policy
    • By "administrative state," I refer to the situation in contemporary American government, created largely although not entirely by Franklin Roosevelt's New Deal, whereby a large bureaucracy is empowered with significant governing authority. Nominally, the agencies comprising the bureaucracy reside within the executive branch, but their powers transcend the traditional boundaries of executive power to include both legislative and judicial functions; these powers are often exercised in a manner largely independent of presidential control and of political control altogether. Given the vast array of activities in which the national government has involved itself in the post-New Deal era, the political branches of government have come to rely heavily on the expertise of bureaucratic agencies, often ceding to them significant responsibility to set, execute, and adjudicate national policy.
  • 2
    • 0042578750 scopus 로고
    • The Rise and Rise of the Administrative State
    • From the point of view of criticizing this development, see
    • From the point of view of criticizing this development, see Gary Lawson, "The Rise and Rise of the Administrative State," Harvard Imo Review 107 (1994): 1231-54;
    • (1994) Harvard Imo Review , vol.107 , pp. 1231-1254
    • Lawson, G.1
  • 3
    • 66749133192 scopus 로고
    • Constitutionalism after the New Deal
    • from the point of view of celebrating it, see
    • from the point of view of celebrating it, see Cass R. Sunstein, "Constitutionalism after the New Deal," Harvard law Review 101 (1987): 421-510.
    • (1987) Harvard law Review , vol.101 , pp. 421-510
    • Sunstein, C.R.1
  • 4
    • 34247502958 scopus 로고    scopus 로고
    • The National Regulatory State in Progressive Political Theory and Twentieth-Century Constitutional Law
    • For another insightful account, see, Ronald J. Pestritto and Thomas G. West, eds, Lanham, MD: Lexington Books
    • For another insightful account, see Eric R. Claeys, "The National Regulatory State in Progressive Political Theory and Twentieth-Century Constitutional Law," in Ronald J. Pestritto and Thomas G. West, eds., Modern America and the Legacy of the Founding (Lanham, MD: Lexington Books, 2006).
    • (2006) Modern America and the Legacy of the Founding
    • Claeys, E.R.1
  • 5
    • 84864063674 scopus 로고    scopus 로고
    • Putting Locke in a Locke Box: Natural Law, Our Constitution, and Our Democracy
    • For just one example, see, Pestritto and West, eds
    • For just one example, see Peter Augustine Lawler, "Putting Locke in a Locke Box: Natural Law, Our Constitution, and Our Democracy," in Pestritto and West, eds., Modern America and the Legacy of the Founding.
    • Modern America and the Legacy of the Founding
    • Augustine Lawler, P.1
  • 6
    • 34247511745 scopus 로고    scopus 로고
    • Dewey and Croly helped to launch The New Republic, the leading American journal of liberal-progressive opinion in the twentieth century. Wilson served as the twenty-sixth president of the United States, and was a leading academic advocate of Progressive ideas long before his entry into politics. Goodnow was the founding president of the American Political Science Association and a pioneer in the field of administrative law.
    • Dewey and Croly helped to launch The New Republic, the leading American journal of liberal-progressive opinion in the twentieth century. Wilson served as the twenty-sixth president of the United States, and was a leading academic advocate of Progressive ideas long before his entry into politics. Goodnow was the founding president of the American Political Science Association and a pioneer in the field of administrative law.
  • 7
    • 34247533476 scopus 로고    scopus 로고
    • There is also significant debate over the continuity between the Declaration and the Constitution. To a limited extent, I explain this debate in Woodrow Wilson and the Rants of Modern Liberalism (Lanham, MD: Rowman and Littlefield, 2005), 3-5, 26-27 n. 10.
    • There is also significant debate over the continuity between the Declaration and the Constitution. To a limited extent, I explain this debate in Woodrow Wilson and the Rants of Modern Liberalism (Lanham, MD: Rowman and Littlefield, 2005), 3-5, 26-27 n. 10.
  • 8
    • 34247468147 scopus 로고    scopus 로고
    • See, for example, Boston: D. C. Heath
    • See, for example, Woodrow Wilson, The State (Boston: D. C. Heath, 1889), 11-12;
    • (1889) The State , pp. 11-12
    • Wilson, W.1
  • 10
    • 34247480214 scopus 로고    scopus 로고
    • See also John Locke, Second Treatise of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), especially chapters 2 (Of the State of Nature), 3 (Of the State of War), 8 (Of the Beginning of Political Societies), and 9 (Of the Ends of Political Society and Government).
    • See also John Locke, Second Treatise of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), especially chapters 2 ("Of the State of Nature), 3 ("Of the State of War"), 8 ("Of the Beginning of Political Societies"), and 9 ("Of the Ends of Political Society and Government").
  • 11
    • 34247485561 scopus 로고    scopus 로고
    • Locke on the Social Compact: An Overview
    • On the connection between Locke and the principles of the Declaration, see, Ronald J. Pestritto and Thomas G. West, eds, Lanham, MD: Lexington Books
    • On the connection between Locke and the principles of the Declaration, see Peter C. Myers, "Locke on the Social Compact: An Overview," in Ronald J. Pestritto and Thomas G. West, eds., The American founding nnd the Social Compact (Lanham, MD: Lexington Books, 2003), 1-35.
    • (2003) The American founding nnd the Social Compact , pp. 1-35
    • Myers, P.C.1
  • 12
    • 34247495302 scopus 로고    scopus 로고
    • Publius, The federalist, ed. Jacob E. Cooke (Middletown, CT: Wesleyan University Press, 1961), No. 14: 86. All citations to The Federalist will cite the paper number, followed by the page number in the Cooke edition.
    • Publius, The federalist, ed. Jacob E. Cooke (Middletown, CT: Wesleyan University Press, 1961), No. 14: 86. All citations to The Federalist will cite the paper number, followed by the page number in the Cooke edition.
  • 13
    • 34247527979 scopus 로고    scopus 로고
    • See Federalist No. 51: 347-49.
    • See Federalist No. 51: 347-49.
  • 14
    • 34247495301 scopus 로고    scopus 로고
    • See Locke, Second Treatise, chapter 12 (Of the Legislative, Executive, and Federative Power of the Commonwealth); and Montesquieu, Spirit of the Laws (1748), ed. Anne M. Cohler, Basia C. Miller, and Harold S. Stone (Cambridge: Cambridge University Press, 1989), part 2, book 11, chapter 6 (On the Constitution of England).
    • See Locke, Second Treatise, chapter 12 ("Of the Legislative, Executive, and Federative Power of the Commonwealth"); and Montesquieu, Spirit of the Laws (1748), ed. Anne M. Cohler, Basia C. Miller, and Harold S. Stone (Cambridge: Cambridge University Press, 1989), part 2, book 11, chapter 6 ("On the Constitution of England").
  • 15
    • 34247508317 scopus 로고    scopus 로고
    • Federalist No. 47: 324;
    • , vol.47 , Issue.324
  • 16
    • 34247504799 scopus 로고    scopus 로고
    • Thomas Jefferson, Notes on the State of Virginia, in The Portable Thomas Jefferson, ed. Merrill D. Peterson (New York: Penguin Books, 1977), query XIII: The Constitution of the State, and Its Several Charters, paragraph 4.
    • Thomas Jefferson, Notes on the State of Virginia, in The Portable Thomas Jefferson, ed. Merrill D. Peterson (New York: Penguin Books, 1977), query XIII: "The Constitution of the State, and Its Several Charters," paragraph 4.
  • 17
    • 34247486044 scopus 로고    scopus 로고
    • See Federalist No. 48: 332. Lawson elaborates on this principle by showing the logic of nondelegation contained in the Constitution's vesting clauses, whereby legislative power is granted almost wholly to Congress, the executive power to the president, and the judicial power to the Supreme Court and lower courts. Lawson, The Rise and Rise, 1237.
    • See Federalist No. 48: 332. Lawson elaborates on this principle by showing the logic of nondelegation contained in the Constitution's "vesting" clauses, whereby legislative power is granted almost wholly to Congress, the executive power to the president, and the judicial power to the Supreme Court and lower courts. Lawson, "The Rise and Rise," 1237.
  • 18
    • 34247517966 scopus 로고
    • See also, New Haven, CT: Yale University Press, for a comprehensive explanation of the constitutional and political defects of delegation
    • See also David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (New Haven, CT: Yale University Press, 1993), for a comprehensive explanation of the constitutional and political defects of delegation.
    • (1993) Power Without Responsibility: How Congress Abuses the People Through Delegation
    • Schoenbrod, D.1
  • 19
    • 34247492254 scopus 로고    scopus 로고
    • Federalist No. 47: 324. John A. Rohr attempts to use Madison's subsequent statement in this paper-that an injustice occurs only when the whole power of one department is exercised by the same hands which possess the whole power of another department (ibid, 325-26)-to contend that the separation-of-powers principle cannot be used as an effective critique of the combination of functions in the modern administrative state. Rohr even claims that by this statement Publius has defined any likely violation of separation of powers out of existence for the entire government as well as for any administrative agency that we know today. While it may be the case that Rohr's defense of the administrative state would be made much easier if The Federalist were as unconcerned about the separation of powers as he contends, his interpretation nonetheless contradicts the very purpose of Federalist No. 47. Madison's point in the paper is to respond to critics w
    • Federalist No. 47: 324. John A. Rohr attempts to use Madison's subsequent statement in this paper-that an injustice occurs only when "the whole power of one department is exercised by the same hands which possess the whole power of another department" (ibid., 325-26)-to contend that the separation-of-powers principle cannot be used as an effective critique of the combination of functions in the modern administrative state. Rohr even claims that by this statement "Publius has defined any likely violation of separation of powers out of existence for the entire government as well as for any administrative agency that we know today." While it may be the case that Rohr's defense of the administrative state would be made much easier if The Federalist were as unconcerned about the separation of powers as he contends, his interpretation nonetheless contradicts the very purpose of Federalist No. 47. Madison's point in the paper is to respond to critics who were claiming that the various checks and balances (presidential veto of legislation, Senate confirmation of executive appointments, etc.), where one branch exercises some small portion of the powers of another branch, violated the separation-of-powers principle. He follows up this point in the subsequent paper, number 48, by explaining how checks and balances keep the separation
  • 20
    • 34247499634 scopus 로고    scopus 로고
    • of-powers provisions from becoming mere parchment barriers (48:333). The whole point here is to explicate checks and balances as a defense mechanism against the combination of powers; Rohr would, instead, have us believe that Federalist No. 47 is Publius's way of facilitating stich a combination. John A. Rohr, To Run a Constitution (Lawrence: University Press of Kansas, 1986), 18-19.
    • of-powers provisions from becoming mere "parchment barriers" (48:333). The whole point here is to explicate checks and balances as a defense mechanism against the combination of powers; Rohr would, instead, have us believe that Federalist No. 47 is Publius's way of facilitating stich a combination. John A. Rohr, To Run a Constitution (Lawrence: University Press of Kansas, 1986), 18-19.
  • 21
    • 34247531033 scopus 로고    scopus 로고
    • Federalist No. 14: 84.
    • , vol.14 , Issue.84
  • 22
    • 34247537692 scopus 로고    scopus 로고
    • U.S. Constitution, Article II, Sections 1, 3.
    • U.S. Constitution, Article II, Sections 1, 3.
  • 23
    • 34247499183 scopus 로고    scopus 로고
    • One of the best explications of this principle is found in Justice Antonin Scalia's dissent in Morrison v. Olson, 487 U.S. 654 (1988), at 697-734.
    • One of the best explications of this principle is found in Justice Antonin Scalia's dissent in Morrison v. Olson, 487 U.S. 654 (1988), at 697-734.
  • 24
    • 84892863813 scopus 로고    scopus 로고
    • emphasis in original
    • Wilson, The State, 651; emphasis in original.
    • The State , pp. 651
    • Wilson1
  • 26
    • 34247517968 scopus 로고    scopus 로고
    • The Rise and Rise, 1240. Lawson cites two cases as the last instances of the Court applying the nondelegation doctrine
    • 1.935, S
    • Lawson, "The Rise and Rise," 1240. Lawson cites two cases as the last instances of the Court applying the nondelegation doctrine: Schechter Poultry v. United States, 295 U.S. 495 (1.935);
    • Schechter Poultry v. United States , vol.295 , Issue.U , pp. 495
    • Lawson1
  • 27
    • 34247501007 scopus 로고    scopus 로고
    • and Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
    • and Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
  • 28
    • 34247489476 scopus 로고    scopus 로고
    • Lawson, The Rise and Rise, 1240. Lawson cites here these sections of U.S. code: 15 U.S.C. Sec. 78j(b); 47 U.S.C. Sec. 307(a).
    • Lawson, "The Rise and Rise," 1240. Lawson cites here these sections of U.S. code: 15 U.S.C. Sec. 78j(b); 47 U.S.C. Sec. 307(a).
  • 32
    • 34247486271 scopus 로고    scopus 로고
    • See also the more recent case of Withrow v. Larkin, 421 U.S. 35 (1975), which upholds and confirms the combination of functions in the administrative state.
    • See also the more recent case of Withrow v. Larkin, 421 U.S. 35 (1975), which upholds and confirms the combination of functions in the administrative state.
  • 34
    • 34247519364 scopus 로고
    • The Headless Fourth Branch
    • See also, ed. Gordon S. Jones and John A. Marini New York: Pharos Books
    • See also Nolan Clark, "The Headless Fourth Branch," in The Imperial Congress, ed. Gordon S. Jones and John A. Marini (New York: Pharos Books, 1988), 268-92.
    • (1988) The Imperial Congress , pp. 268-292
    • Clark, N.1
  • 35
    • 34247489473 scopus 로고    scopus 로고
    • Morrison v. Olson, 487 U.S. 654 (1988).
    • Morrison v. Olson, 487 U.S. 654 (1988).
  • 36
    • 34247465273 scopus 로고    scopus 로고
    • PDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). This is, strictly speaking, a statutory case as opposed to a nondelegation (i.e., constitutional law) case, and the Court does not, in its opinion, indicate any reversal of its long-established delegation jurisprudence. Rather, the significance of the case comes from the Court's refusal, in a high-profile controversy, to read into the law a deference to agency expertise that was not there in the first place.
    • PDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). This is, strictly speaking, a statutory case as opposed to a nondelegation (i.e., constitutional law) case, and the Court does not, in its opinion, indicate any reversal of its long-established delegation jurisprudence. Rather, the significance of the case comes from the Court's refusal, in a high-profile controversy, to read into the law a deference to agency expertise that was not there in the first place.
  • 37
    • 0042529211 scopus 로고
    • Formal and Functional Approaches to Separation-of-Powers Questions: A Foolish Inconsistency?
    • Peter L. Strauss, "Formal and Functional Approaches to Separation-of-Powers Questions: A Foolish Inconsistency?" Cornell Law Review 72 (1987): 493.
    • (1987) Cornell Law Review , vol.72 , pp. 493
    • Strauss, P.L.1
  • 38
    • 84927458078 scopus 로고
    • The Place of Agencies in Government: Separation of Powers and the Fourth Branch
    • See also
    • See also Strauss, "The Place of Agencies in Government: Separation of Powers and the Fourth Branch," Columbia Law Review 84 (1984): 573-669.
    • (1984) Columbia Law Review , vol.84 , pp. 573-669
    • Strauss1
  • 40
    • 34247527078 scopus 로고    scopus 로고
    • The premise of this essay runs counter to Rohr's To Run a Constitution, a major work on the origins of the administrative state that also delves into the writings of Wilson and Goodnow, among others. While I argue that today's administrative state is illegitimate in the eyes of the founders' constitutionalism, Rohr attempts to demonstrate a continuity between the two. Rohr's work does, however, offer a mixed view on the role of Wilson and Goodnow. At some points, Rohr suggests that Wilson and Goodnow contradicted the Constitution in their vision for administration, but that in doing so they gave administration a bad name. While Wilson and Goodnow's particular form of administration contradicted the constitutional tradition, the modern administrative state does not.
    • The premise of this essay runs counter to Rohr's To Run a Constitution, a major work on the origins of the administrative state that also delves into the writings of Wilson and Goodnow, among others. While I argue that today's administrative state is illegitimate in the eyes of the founders' constitutionalism, Rohr attempts to demonstrate a continuity between the two. Rohr's work does, however, offer a mixed view on the role of Wilson and Goodnow. At some points, Rohr suggests that Wilson and Goodnow contradicted the Constitution in their vision for administration, but that in doing so they gave administration a bad name. While Wilson and Goodnow's particular form of administration contradicted the constitutional tradition, the modern administrative state does not.
  • 42
    • 34247533475 scopus 로고    scopus 로고
    • The Administrative State and Constitutional Principle
    • see also, Ralph Clark Chandler, ed, New York: The Free Press, 1.987
    • see also John A. Rohr, "The Administrative State and Constitutional Principle," in Ralph Clark Chandler, ed., A Centennial History of the American Administrative State (New York: The Free Press, 1.987), 116-120,124.
    • A Centennial History of the American Administrative State , vol.116-120 , pp. 124
    • Rohr, J.A.1
  • 43
    • 34247498380 scopus 로고    scopus 로고
    • Elsewhere, however, Rohr argues on behalf of the continuity between Wilson's thinking and that of the founders; see Rohr, The Constitutional World of Woodrow Wilson, in Jack Rabin and James S. Bowman, eds., Politics and Administration: Woodrow Wilson and American Public Administration (New York: Marcel Dekker, 1984), 43-44. While Rohr contends that the modern administrative state does not necessarily adopt the principles of Wilson and Goodnow, I endeavor to show here that the ideas of Wilson and Goodnow are quite influential in the later thinking of Landis and in the principles of the administrative state today.
    • Elsewhere, however, Rohr argues on behalf of the continuity between Wilson's thinking and that of the founders; see Rohr, "The Constitutional World of Woodrow Wilson," in Jack Rabin and James S. Bowman, eds., Politics and Administration: Woodrow Wilson and American Public Administration (New York: Marcel Dekker, 1984), 43-44. While Rohr contends that the modern administrative state does not necessarily adopt the principles of Wilson and Goodnow, I endeavor to show here that the ideas of Wilson and Goodnow are quite influential in the later thinking of Landis and in the principles of the administrative state today.
  • 44
    • 34247474536 scopus 로고    scopus 로고
    • Franklin D. Roosevelt, Campaign Address on Progressive Government, September 23, 1932, in Samuel I. Rosenman, ed., Public Papers and Addresses of Franklin D. Roosevelt, 1. (New York: Random House, 1938), 742-56, esp. 749-51.
    • Franklin D. Roosevelt, "Campaign Address on Progressive Government," September 23, 1932, in Samuel I. Rosenman, ed., Public Papers and Addresses of Franklin D. Roosevelt, vol. 1. (New York: Random House, 1938), 742-56, esp. 749-51.
  • 45
    • 0003736594 scopus 로고
    • For biographical information on Landis, see, Cambridge, MA: Belknap Press of Harvard University Press
    • For biographical information on Landis, see Thomas K. McGraw, Prophets of Regulation (Cambridge, MA: Belknap Press of Harvard University Press, 1984), 153-209.
    • (1984) Prophets of Regulation , pp. 153-209
    • McGraw, T.K.1
  • 47
    • 77953823535 scopus 로고
    • James Landis and the Administrative Process
    • December
    • Louis L. Jaffe, "James Landis and the Administrative Process," Harvard Law Review 78 (December 1964): 320.
    • (1964) Harvard Law Review , vol.78 , pp. 320
    • Jaffe, L.L.1
  • 48
    • 0003833360 scopus 로고    scopus 로고
    • New Haven, CT: Yale University Press
    • James M. Landis, The Administrative Process (New Haven, CT: Yale University Press, 1938), 1-2.
    • (1938) The Administrative Process , pp. 1-2
    • Landis, J.M.1
  • 51
    • 34247548939 scopus 로고    scopus 로고
    • U.S. Constitution, Article II, Section 1.
    • U.S. Constitution, Article II, Section 1.
  • 52
    • 34247527080 scopus 로고    scopus 로고
    • Landis explains that he would like for administrators to have the power to make modifications to legislation, and also explains that administration cannot work unless agencies have the authority to impose their own sanctions. See Landis, The Administrative Process, 52, 89
    • Landis explains that he would like for administrators to have the power to make modifications to legislation, and also explains that administration cannot work unless agencies have the authority to impose their own sanctions. See Landis, The Administrative Process, 52, 89.
  • 53
    • 34247466740 scopus 로고    scopus 로고
    • Ibid., 10.
  • 54
    • 34247538613 scopus 로고    scopus 로고
    • Ibid., 15.
  • 55
    • 34247529644 scopus 로고    scopus 로고
    • Ibid., 47-48.
  • 56
    • 34247520711 scopus 로고
    • See Report of the President's Committee on Administrative Management, Washington, DC: Government Printing Office
    • See "Report of the President's Committee on Administrative Management," 74th Congress, 2d Session (Washington, DC: Government Printing Office, 1937).
    • (1937) 74th Congress, 2d Session
  • 57
    • 34247501892 scopus 로고    scopus 로고
    • Progressivism, the Brownlow Commission, and the Origins of the American Administrative State
    • See also, Pestritto and West, eds
    • See also Donald R. Brand, "Progressivism, the Brownlow Commission, and the Origins of the American Administrative State," in Pestritto and West, eds., Modern America and the Legacy of the Founding.
    • Modern America and the Legacy of the Founding
    • Brand, D.R.1
  • 60
  • 67
    • 34247550474 scopus 로고    scopus 로고
    • See ibid., 85-86.
    • See ibid., 85-86.
  • 68
    • 34247546813 scopus 로고    scopus 로고
    • James M. Landis, Report on Regulatory Agencies to the President-Elect, Committee on the Judiciary of the U.S. Senate, 86th Congress, 2d Session, December 1960, section I.D.
    • James M. Landis, Report on Regulatory Agencies to the President-Elect, Committee on the Judiciary of the U.S. Senate, 86th Congress, 2d Session, December 1960, section I.D.
  • 69
    • 34247468605 scopus 로고    scopus 로고
    • Ibid., section It.
    • Ibid., section It.
  • 71
    • 34247528735 scopus 로고    scopus 로고
    • For an excellent illustration of how progressive principles of administration undermine the rule of law, see SEC v. Chenery, 332 U.S. 194 (1947) and its related cases
    • For an excellent illustration of how progressive principles of administration undermine the rule of law, see SEC v. Chenery, 332 U.S. 194 (1947) and its related cases.
  • 74
    • 34247536048 scopus 로고    scopus 로고
    • For additional examples of Landis's criticism of the rule of law, see, 30, 35, 133-35
    • For additional examples of Landis's criticism of the rule of law, see ibid., 30, 35, 133-35.
    • Landis1
  • 77
    • 34247525275 scopus 로고    scopus 로고
    • Jaffe was one of the main critics of Landis's optimism, and he argues in this article that the special circumstances of the New Deal blinded Landis to administration's general susceptibility to corruption. For a listing of other accounts criticizing Landis's excessive optimism, see
    • Jaffe was one of the main critics of Landis's optimism, and he argues in this article that the special circumstances of the New Deal blinded Landis to administration's general susceptibility to corruption. For a listing of other accounts criticizing Landis's excessive optimism, see Ritchie, James M. Landis: Dean of the Regulators, 213 n. 6.
    • James M. Landis: Dean of the Regulators , vol.213 , Issue.6
    • Ritchie1
  • 78
    • 34247514523 scopus 로고    scopus 로고
    • See, for example, Federalist No. 6, where Publius addresses the Antifederalist and Enlightenment notion that human nature had improved and become less dangerous. He characterizes those holding such notions as far gone in Utopian speculations.
    • See, for example, Federalist No. 6, where Publius addresses the Antifederalist and Enlightenment notion that human nature had improved and become less dangerous. He characterizes those holding such notions as "far gone in Utopian speculations."
  • 79
    • 34247488498 scopus 로고    scopus 로고
    • Federalist No. 6: 28.
    • , vol.6 , Issue.28
  • 80
    • 34247471875 scopus 로고    scopus 로고
    • Federalist No. 23: 150.
    • , vol.23 , Issue.150
  • 82
    • 34247524782 scopus 로고    scopus 로고
    • Ibid., 154; emphasis added.
    • Ibid., 154; emphasis added.
  • 83
  • 84
    • 34247466193 scopus 로고    scopus 로고
    • see also 125. In Withrow v. Larkin, where the Supreme Court upheld combining prosecutorial and adjudicative functions in the same set of agency hands, Justice Byron White employed a Landis-like trust of administrators, writing of a presumption of honesty and integrity in those serving as adjudicators.
    • see also 125. In Withrow v. Larkin, where the Supreme Court upheld combining prosecutorial and adjudicative functions in the same set of agency hands, Justice Byron White employed a Landis-like trust of administrators, writing of a "presumption of honesty and integrity in those serving as adjudicators."
  • 85
    • 34247500552 scopus 로고    scopus 로고
    • Withrow v. Larkin, 421 U.S. 35 (1975), at 47.
    • Withrow v. Larkin, 421 U.S. 35 (1975), at 47.
  • 86
    • 34247530080 scopus 로고    scopus 로고
    • Landis, Report on Regulatory Agencies, I.C
    • Landis, Report on Regulatory Agencies, I.C
  • 88
    • 34247508959 scopus 로고    scopus 로고
    • Ibid., LA, I.C, Summary.
    • Ibid., LA, I.C, Summary.
  • 89
    • 34247526139 scopus 로고    scopus 로고
    • Ibid., I.F, II.A.9.
    • Ibid., I.F, II.A.9.
  • 90
    • 34247548063 scopus 로고    scopus 로고
    • Ibid., It.B.
    • Ibid., It.B.
  • 91
    • 34247512260 scopus 로고    scopus 로고
    • Ibid., I. See also I.A.
    • Ibid., I. See also I.A.
  • 92
    • 34247502957 scopus 로고    scopus 로고
    • Gary Lawson has an excellent account of this phenomenon, to which my understanding of it is indebted. See, 2d ed, St. Paul, MN: West Group
    • Gary Lawson has an excellent account of this phenomenon, to which my understanding of it is indebted. See Gary Lawson, Federal Administrative Law, 2d ed. (St. Paul, MN: West Group, 2001), 245-55.
    • (2001) Federal Administrative Law , pp. 245-255
    • Lawson, G.1
  • 93
    • 34247528734 scopus 로고    scopus 로고
    • For examples of the kinds of cases that reflect court action in response to capture theory, see especially Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971);
    • For examples of the kinds of cases that reflect court action in response to "capture theory," see especially Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971);
  • 94
    • 34247506029 scopus 로고    scopus 로고
    • and Motor Vehicles Manufacturers Association of the U.S. v. State Farm Mutual Automobile Ins., 463 U.S. 29 (1983).
    • and Motor Vehicles Manufacturers Association of the U.S. v. State Farm Mutual Automobile Ins., 463 U.S. 29 (1983).
  • 95
    • 34247491277 scopus 로고    scopus 로고
    • Landis, Report on Regulatory Agencies, U.C.
    • Landis, Report on Regulatory Agencies, U.C.
  • 96
    • 34247505270 scopus 로고    scopus 로고
    • This discussion connecting Wilson and Goodnow to the development of the administrative state builds on my earlier work on Wilson. The account here of Wilson's vision for administrative discretion thus represents a brief summary of the more detailed argument in my introduction to Woodraw Wilson: The Essential Political Writings Lanham, MD: Lexington Books, 2005, 22-25
    • This discussion connecting Wilson and Goodnow to the development of the administrative state builds on my earlier work on Wilson. The account here of Wilson's vision for administrative discretion thus represents a brief summary of the more detailed argument in my introduction to Woodraw Wilson: The Essential Political Writings (Lanham, MD: Lexington Books, 2005), 22-25.
  • 97
    • 34247529643 scopus 로고    scopus 로고
    • and in my Woodrow Wilson and ttie Roots of Modern Liberalism, 117-28, 221-52.
    • and in my Woodrow Wilson and ttie Roots of Modern Liberalism, 117-28, 221-52.
  • 98
    • 34247515727 scopus 로고    scopus 로고
    • For a very different account of Wilson, see Eldon J. Eisenach, who contends that Wilson was not even a Progressive. His election in 1912 instead marked the end of the Progressive movement, Eisenach argues. Eldon J. Eisenach, The Lost Promise of Progressivism (Lawrence: University Press of Kansas, 1994), esp. 3, 124-25.
    • For a very different account of Wilson, see Eldon J. Eisenach, who contends that Wilson was not even a Progressive. His election in 1912 instead marked the end of the Progressive movement, Eisenach argues. Eldon J. Eisenach, The Lost Promise of Progressivism (Lawrence: University Press of Kansas, 1994), esp. 3, 124-25.
  • 99
    • 84859769825 scopus 로고
    • American Statesmanship: Old and New
    • For a different point of view-one that suggests important continuities between Wilson's administrative vision and that of the American founders-see, ed. Joseph M. Besserte Washington, DC: AEI Press
    • For a different point of view-one that suggests important continuities between Wilson's administrative vision and that of the American founders-see Herbert J. Storing, "American Statesmanship: Old and New," in Toward a More Perfect Union: Writings of Herbert J. Storing, ed. Joseph M. Besserte (Washington, DC: AEI Press, 1995), 412-14;
    • (1995) Toward a More Perfect Union: Writings of Herbert J. Storing , pp. 412-414
    • Storing, H.J.1
  • 100
    • 0037817085 scopus 로고
    • The American Administrative State: Wilson and the Founders-An Unorthodox View
    • November/December
    • Paul P. Van Riper, "The American Administrative State: Wilson and the Founders-An Unorthodox View," Public Administration Review 43 (November/December 1983): 479-80;
    • (1983) Public Administration Review , vol.43 , pp. 479-480
    • Paul, P.1    Riper, V.2
  • 102
    • 34247494406 scopus 로고    scopus 로고
    • For a more detailed response to these arguments, particularly as they relate to
    • For a more detailed response to these arguments, particularly as they relate to Wilson, see my Woodrow Wilson and the Roots of Modern Liberalism, 237-38.
    • Woodrow Wilson and the Roots of Modern Liberalism , pp. 237-238
    • Wilson1    see my2
  • 103
    • 34247517525 scopus 로고
    • 15th ed, Boston: Houghton Mifflin
    • Woodrow Wilson, Congressional Government, 15th ed. (1885; Boston: Houghton Mifflin, 1900), 42.
    • (1885) Congressional Government , pp. 42
    • Wilson, W.1
  • 104
    • 0004224481 scopus 로고
    • New York: Doubleday, Page and Company
    • Woodrow Wilson, The New Freedom (New York: Doubleday, Page and Company, 1913), 47.
    • (1913) The New Freedom , pp. 47
    • Wilson, W.1
  • 105
    • 34247483279 scopus 로고    scopus 로고
    • Woodrow Wilson, The Art of Governing, November 15, 1885, in The Papers of Woodrow Wilson (hereafter cited as PWW), 69 vols., ed. Arthur S. Link (Princeton, NJ: Princeton University Press, 1966-1.993), 5:52; emphasis in original.
    • Woodrow Wilson, "The Art of Governing," November 15, 1885, in The Papers of Woodrow Wilson (hereafter cited as PWW), 69 vols., ed. Arthur S. Link (Princeton, NJ: Princeton University Press, 1966-1.993), 5:52; emphasis in original.
  • 106
    • 34247476947 scopus 로고    scopus 로고
    • Some scholars suggest that Wilson did not really urge a strict separation between politics and administration. See Kent A. Kirwan, The Crisis of Identity in the Study of Public Administration: Woodrow Wilson, Polity 9 Spring 1977, 332;
    • Some scholars suggest that Wilson did not really urge a strict separation between politics and administration. See Kent A. Kirwan, "The Crisis of Identity in the Study of Public Administration: Woodrow Wilson," Polity 9 (Spring 1977): 332;
  • 107
    • 84929063265 scopus 로고
    • Woodrow Wilson, Progressive Reform, and Public Administration
    • Larry Walker, "Woodrow Wilson, Progressive Reform, and Public Administration," Political Science Quarterly 104, no. 3 (1989): 511;
    • (1989) Political Science Quarterly , vol.104 , Issue.3 , pp. 511
    • Walker, L.1
  • 109
    • 85037148244 scopus 로고    scopus 로고
    • The Wilsonian Dichotomy in Administrative Law
    • Rabin and Bowman, eds
    • Phillip J. Cooper, "The Wilsonian Dichotomy in Administrative Law," in Rabin and Bowman, eds., Politics and Administration, 79-94;
    • Politics and Administration , pp. 79-94
    • Cooper, P.J.1
  • 110
    • 34247529642 scopus 로고    scopus 로고
    • and Kendrick A. Clements, Woodrow Wilson and Administrative Reform, Presidential Studies Quarterly 28, no. 2 (Spring 1998): 320-36. Clements even suggests that Wilson's previous assertion of a strict separation between politics and administration was not really what he meant to say (322).
    • and Kendrick A. Clements, "Woodrow Wilson and Administrative Reform," Presidential Studies Quarterly 28, no. 2 (Spring 1998): 320-36. Clements even suggests that Wilson's previous assertion of a strict separation between politics and administration "was not really what he meant to say" (322).
  • 111
    • 34247515726 scopus 로고    scopus 로고
    • Woodrow Wilson, Government by Debate, December 1882, in PWW, 2:224.
    • Woodrow Wilson, "Government by Debate," December 1882, in PWW, 2:224.
  • 112
    • 34247543194 scopus 로고    scopus 로고
    • Wilson's precise role as a founder of the modern discipline of public administration has been the topic of some debate. For examples of those who see Wilson as the founder of public administration, see Arthur S. Link, Woodrow Wilson and the Study of Administration, in Link, The Higher Realism of Woodrow Wilson and Other Essays (Nashville, TN: Vanderbilt University Press, 1971), 44;
    • Wilson's precise role as a founder of the modern discipline of "public administration" has been the topic of some debate. For examples of those who see Wilson as the founder of public administration, see Arthur S. Link, "Woodrow Wilson and the Study of Administration," in Link, The Higher Realism of Woodrow Wilson and Other Essays (Nashville, TN: Vanderbilt University Press, 1971), 44;
  • 114
    • 34247474973 scopus 로고    scopus 로고
    • For examples of those who contest Wilson's status as the founder of public administration, see Lynton K. Caldwell, Public Administration and the Universities: A Half-Century of Development, Public Administration Review 25, no. 1, 1965, 53-58;
    • For examples of those who contest Wilson's status as the founder of public administration, see Lynton K. Caldwell, "Public Administration and the Universities: A Half-Century of Development," Public Administration Review 25, no. 1. (1965): 53-58;
  • 115
    • 84928844707 scopus 로고
    • The Fading Legacy of Woodrow Wilson
    • March/April
    • Daniel W. Martin, "The Fading Legacy of Woodrow Wilson," Public Administration Review 48 (March/April 1988): 632-35;
    • (1988) Public Administration Review , vol.48 , pp. 632-635
    • Martin, D.W.1
  • 117
    • 34247538611 scopus 로고    scopus 로고
    • Woodrow Wilson, Notes for Lectures at the Johns Hopkins, January 26, 1891, in PWW, 7:122.
    • Woodrow Wilson, "Notes for Lectures at the Johns Hopkins," January 26, 1891, in PWW, 7:122.
  • 118
    • 34247485562 scopus 로고    scopus 로고
    • Ibid., 7:121; emphasis added.
    • Ibid., 7:121; emphasis added.
  • 119
    • 34247466192 scopus 로고    scopus 로고
    • Ibid., 7:134-38.
    • , vol.7 , pp. 134-138
    • Riper, V.1
  • 120
    • 34247469075 scopus 로고    scopus 로고
    • Woodrow Wilson, What Can Be Done for Constitutional Liberty, March 21, 1881, in PWW, 2:34-36.
    • Woodrow Wilson, "What Can Be Done for Constitutional Liberty," March 21, 1881, in PWW, 2:34-36.
  • 121
    • 34247514522 scopus 로고    scopus 로고
    • Wilson, Notes for Lectures, in PWW, 7:122.
    • Wilson, "Notes for Lectures," in PWW, 7:122.
  • 122
    • 0004260323 scopus 로고
    • See, trans. T. M. Knox Oxford: Oxford University Press
    • See G. W. F. Hegel, Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967), 191-92.
    • (1967) Philosophy of Right , pp. 191-192
    • Hegel, G.W.F.1
  • 123
    • 34247490391 scopus 로고    scopus 로고
    • For criticisms of this assumption of administrators' disinterestedness, see Herbert J. Storing, Political Parties and the Bureaucracy, in Storing, Toward a More Perfect Union, 312;
    • For criticisms of this assumption of administrators' disinterestedness, see Herbert J. Storing, "Political Parties and the Bureaucracy," in Storing, Toward a More Perfect Union, 312;
  • 124
    • 34247533024 scopus 로고    scopus 로고
    • The Origins of Wilson's Thought: The German Tradition and the Organic State
    • Rabin and Bowman, eds
    • and Robert D. Miewald, "The Origins of Wilson's Thought: The German Tradition and the Organic State," in Rabin and Bowman, eds., Politics and Administration, 18-19, 27.
    • Politics and Administration , vol.18-19 , pp. 27
    • Miewald, R.D.1
  • 125
    • 34247514977 scopus 로고    scopus 로고
    • The Study of Administration, November 1886
    • Woodrow Wilson, "The Study of Administration," November 1886, in PWW, 5:378.
    • PWW , vol.5 , pp. 378
    • Wilson, W.1
  • 127
    • 34247496044 scopus 로고    scopus 로고
    • Wilson, Notes for Lectures, in PWW, 7:11.8-20. Wilson's mention of Goodnow came in an 1894 revision he made to these notes.
    • Wilson, "Notes for Lectures," in PWW, 7:11.8-20. Wilson's mention of Goodnow came in an 1894 revision he made to these notes.
  • 128
    • 34247540581 scopus 로고    scopus 로고
    • Samuel C. Patterson, Remembering Frank J. Goodnow, PS 34, no. 4 (December 2001): 875-81;
    • Samuel C. Patterson, "Remembering Frank J. Goodnow," PS 34, no. 4 (December 2001): 875-81;
  • 131
    • 34247510839 scopus 로고    scopus 로고
    • Ibid., 9-1.0.
    • Ibid., 9-1.0.
  • 132
    • 34247466741 scopus 로고    scopus 로고
    • Frank J. Goodnow, Politics and Administration (1900; New Brunswick, NJ: Transaction, 2003), 86-87.
    • Frank J. Goodnow, Politics and Administration (1900; New Brunswick, NJ: Transaction, 2003), 86-87.
  • 136
    • 34247464876 scopus 로고    scopus 로고
    • See Wilson's similar statement in The Art of Governing, in PWW, 5:52, quoted above.
    • See Wilson's similar statement in "The Art of Governing," in PWW, 5:52, quoted above.
  • 139
    • 34247526606 scopus 로고    scopus 로고
    • See also The American Conception of Liberty and Government, 13, where Goodnow identified the main problem with the American conception of liberty and government as its foundation in nature.
    • See also The American Conception of Liberty and Government, 13, where Goodnow identified the main problem with the American conception of liberty and government as its foundation in nature.
  • 144
    • 79959213910 scopus 로고    scopus 로고
    • The Political Theory of the Declaration of Independence
    • For a good explanation of the foundation of consent in the Declaration of Independence, see, Pestritto and West, eds
    • For a good explanation of the foundation of consent in the Declaration of Independence, see Thomas G. West, "The Political Theory of the Declaration of Independence," in Pestritto and West, eds., The American Founding and the Social Compact, 120-30.
    • The American Founding and the Social Compact , pp. 120-130
    • West, T.G.1
  • 146
    • 34247472769 scopus 로고    scopus 로고
    • see also ibid., 36.
    • see also ibid., 36.
  • 152
    • 34247486267 scopus 로고    scopus 로고
    • Ibid., 1:10-11.
    • , vol.1 , pp. 10-11
    • Goodnow1
  • 156
    • 34247539216 scopus 로고    scopus 로고
    • For an example of Goodnow's making such a claim, see, 24
    • For an example of Goodnow's making such a claim, see ibid., 24.
    • Goodnow1
  • 157
    • 34247485113 scopus 로고    scopus 로고
    • Ibid., 1.7.
    • Ibid., 1.7.
  • 160
    • 34247520273 scopus 로고    scopus 로고
    • Federalist No. 72: 488.
    • , vol.72 , Issue.488
  • 162
    • 34247494405 scopus 로고    scopus 로고
    • See note 81 above
    • See note 81 above.
  • 163
    • 34247474069 scopus 로고    scopus 로고
    • John A. Rohr, Introduction, in Goodnow, Politics and Administration, xxviii-xxix.
    • John A. Rohr, "Introduction," in Goodnow, Politics and Administration, xxviii-xxix.
  • 166
    • 34247513186 scopus 로고    scopus 로고
    • Goodnow, Politics and Administration, 9. Goodnow thus relies on a division of power which, at least at the surface, comports more with Locke's division (between legislative and executive) than with Montesquieu's (between legislative, executive, and judicial). Rohr cites this connection to Locke for the purpose of arguing that Goodnow is not completely out of touch with American political thought
    • Goodnow, Politics and Administration, 9. Goodnow thus relies on a division of power which, at least at the surface, comports more with Locke's division (between legislative and executive) than with Montesquieu's (between legislative, executive, and judicial). Rohr cites this connection to Locke for the purpose of arguing that Goodnow is not completely "out of touch with American political thought"
  • 167
    • 0039273754 scopus 로고    scopus 로고
    • Rohr, But this is only a superficial connection to Locke, as the purpose of Locke's separation is to protect individual rights from the arbitrary exercise of state power, whereas the purpose of Goodnow's is to provide the most efficient mechanism for the delivery of state power
    • (Rohr, To Run a Constitution, 88). But this is only a superficial connection to Locke, as the purpose of Locke's separation is to protect individual rights from the arbitrary exercise of state power, whereas the purpose of Goodnow's is to provide the most efficient mechanism for the delivery of state power.
    • Constitution , pp. 88
    • Run a, T.1
  • 174
    • 34247499632 scopus 로고    scopus 로고
    • See Federalist No. 78: 522-24, where Hamilton explains that the federal courts required independence from politics because of the necessity to safeguard individual liberty.
    • See Federalist No. 78: 522-24, where Hamilton explains that the federal courts required independence from politics because of the necessity to safeguard individual liberty.
  • 177
    • 34247530534 scopus 로고    scopus 로고
    • For scholarly accounts crediting Goodnow more than Wilson, see
    • For scholarly accounts crediting Goodnow more than Wilson, see Patterson, "Remembering Frank J. Goodnow," 877;
    • Remembering Frank J. Goodnow , vol.877
    • Patterson1
  • 178
    • 34247529640 scopus 로고    scopus 로고
    • and Haines and Dimock, Introduction, x-xi. Rohr also gives more credit to Goodnow, claiming that Wilson's thought was more eclectic while Goodnow was more of a pure Hegelian. Rohr, Introduction, xxii. But I would suggest, on the contrary, that Wilson was about as pure a Hegelian as one could find in the United States.
    • and Haines and Dimock, "Introduction," x-xi. Rohr also gives more credit to Goodnow, claiming that Wilson's thought was more "eclectic" while Goodnow was more of a pure Hegelian. Rohr, "Introduction," xxii. But I would suggest, on the contrary, that Wilson was about as pure a Hegelian as one could find in the United States.
  • 179
    • 34247535599 scopus 로고    scopus 로고
    • See my Woodrow Wilson and the Roots of Modern Liberalism, esp. 14-19, 34, 36-37, 41-44, 55, 68-70, 75, 82, 91, 100, 102, 213-16, 225, 228-30, 233, 240, and 263.
    • See my Woodrow Wilson and the Roots of Modern Liberalism, esp. 14-19, 34, 36-37, 41-44, 55, 68-70, 75, 82, 91, 100, 102, 213-16, 225, 228-30, 233, 240, and 263.


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