I have been threatening for a few years now to write a book with the title Bureaucracy in America, which would attempt to do for our administrative state what Tocqueville’s Democracy in America did in the 19th century—explain the deeper cultural and philosophical aspects of the practice of American democracy. For it is Tocqueville who offers the preface to a serious reconsideration of our administrative state today, in his famous chapter “What Sort of Despotism Democratic Nations Have to Fear.”
Tocqueville described a “soft despotism” that “would be more extensive and milder” that the tyrannies of history, but which “would degrade men without tormenting them.” Tocqueville struggled to give this phenomenon a meaningful term:
I myself seek in vain an expression that exactly reproduces the idea that I form of it for myself and that contains it; the old words despotism and tyranny are not suitable. The thing is new, therefore I must try to describe it, since I cannot name it.
It is ironic that a profound thinker from France—which came early and hard to governance by bureaux—would fail to conceive the formal term bureaucracy, but his description certainly hits the mark better than just about any thinker with the possible exception of Max Weber. The climax of de Tocqueville’s argument is one of the best-known passages of his great book:
Thus, after taking each individual by turns in its powerful hands and kneading him as it likes, the sovereign extends it arms over society as a whole; it covers its surface with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd; it does not break wills, but it softens them, bends them, and directs them; it rarely forces one to act, but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.
Well, I am delighted to report that someone has beat me to Bureaucracy in America, and it is Joseph Postell of the University of Colorado at Colorado Springs. The subtitle conveys the importance and nature of the book’s argument: The Administrative State’s Challenge to Constitutional Government. Postell offers a magnificent synoptic account that blends history, law, and political philosophy, all in a relatively compact—and highly readable—322 pages. (Among other great revisionist services of the book is his account of what a disappointment the Rehnquist Court was on these issues. I once had a vigorous argument with a Rehnquist law clerk about this problem. The guy’s name was Ted Cruz.)
I think Postell’s book will take its place alongside Phil Hamburger’s Is Administrative Law Unlawful? (answer: yes) as one of the important treatments to come along at the historic moment when second thoughts about bureaucratic rule seem to be reaching a critical mass. If you follow this subject, Postell’s book is a must-read.