New article: "What is (de)politicization and what is wrong with it?"

 I've just published a new article titled, "What is (de)politicization and what is wrong with it?" in the American Journal of Political Science. You can read the article here. The first half of the article is an exercise in conceptual clarification. The second half works out my account of what I term "archic depoliticization" by way of an ideal-typical contrast between political rule and non-political bureaucratic/judicial power. Here is the abstract:

This article attempts to clarify the meaning of (de)politicization. Politicization sometimes refers to the inappropriate intrusion of partisan loyalties in nonpolitical social domains (affective politicization). Politicization can also constitute an ideal of civic agency and energy (contestatory politicization). In other contexts, politicization is meant as a kind of institutional corruption, in which government decisions are made for the sake of sectional advantage (patrimonial politicization). It can also refer to the imposition of controversial values judgments by ostensibly neutral institutions like the courts and bureaucracy (values politicization). These concepts raise divergent normative considerations of varying weightiness. This article motivates the potency of a fifth concept of politicization, which centers on the category of authoritative rule (archic politicization). It offers an ideal–typical contrast between political rule and depoliticized power, and it treats the distinct justifications for and objections to the substitution of depoliticized, impersonal reason for authoritative, political will.

On Clarence Thomas' Anti-Wilsonianism

Justice Clarence Thomas recently delivered a speech at UT Austin on the Declaration of Independence and the principles of the American Founding. A portion of that speech was published in the Wall Street Journal under the title "Progressives vs. The Declaration." That excerpt is useful because it neatly summarizes a standard conservative account of the meaning of the Founding and the corruption produced by the Progressive Era and Woodrow Wilson in particular. Much more can be said about the origins and appeal of that narrative, which broadly harmonizes that pet interests of economic libertarians, West Coast Straussian political theorists, and originalist jurists, but I will set that point aside. Justice Thomas goes beyond the standard narrative by drawing a line from the American Progressives to the totalitarian regimes of the twentieth century, but I will set that aside as well. 

I have argued at greater length in an article that Woodrow Wilson's constitutional theory is in broad strokes continuous with that articulated by Hamilton and Madison in the Federalist Papers. I don't take up there Wilson's apparent critique of the Declaration of Independence, but my general view is that Wilson is best read as offering a Burkean interpretation of that document.

My aim in this post is narrow: I would like to examine the charges levelled against Woodrow Wilson by Justice Thomas in the WSJ excerpt of his speech. These charges are abridged versions of arguments that have been developed more systematically by influential conservative scholars (Pestritto, Kessler, Hamburger, etc.), but I will limit my focus to the evidence Justice Thomas marshals. Still, my general assessment of those broader arguments will be clear enough. 

In short, I don't find Justice Thomas' critique of Wilson remotely persuasive. He makes three basic arguments: (1) Wilson was an enthusiast for administration to the point of defending unlimited state power; (2) Wilson was hostile to natural rights; and (3) Wilson was contemptuous of the people and therewith of democracy. All three arguments misinterpret and misquote (sometimes egregiously) Wilson's writings. As a matter of charity to Justice Thomas, I'll chalk up those misrepresentations to rhetorical convenience or the sloppy work of a clerk. 

1. On administration and state power

Justice Thomas writes:

Wilson and the progressives candidly admitted that they took it from Otto von Bismarck’s Germany, whose state-centric society they admired. Progressives like Wilson argued that America needed to leave behind the principles of the Founding and catch up with the more advanced and sophisticated people of Europe. Wilson called Germany’s system of relatively unimpeded state power “nearly perfected.” He acknowledged that it was “a foreign science, speaking very little of the language of English or American principle,” which “offers none but what are to our minds alien ideas.” He thus described America, still stuck with its original system of government, as “slow to see” the superiority of the European system.

Here Justice Thomas is quoting one of Wilson's most influential articles, his 1887 "The Study of Administration." It is true that Wilson admires European advances in bureaucratic organization and administration. But Wilson clearly is not arguing that the continental European regimes are, as a whole, superior to the American model of government. On the contrary, Wilson is explicit that the Anglo-American system, however deficient in its amateurishness, is superior to the German model precisely because of the Anglo-American commitment to political liberty. Here is what Wilson says: 

Of course all reasonable preference would declare for this English and American course of politics rather than for that of any European country. We should not like to have had Prussia’s history for the sake of having Prussia’s administrative skill; and Prussia’s particular system of administration would quite suffocate us. It is better to be untrained and free than to be servile and systematic. Still there is no denying that it would be better yet to be both free in spirit and proficient in practice.

Who could deny the truth of that? American politics in the late nineteenth century was outrageously inefficient and corrupt. We did in fact require a major updating of bureaucratic professionalism, and thank God Wilson et al. gave it to us. Would we rather be ruled by Tammany Hall-style machine corruption and bossism? Wilson is attempting to bring a spirit of bureaucratic professionalism into the American regime without abandoning our core commitments to individual liberty.

2. On natural rights

Justice Thomas writes:

Progressives strove to undo the Declaration’s commitment to equality and natural rights, both of which they denied were self-evident. To Wilson, the inalienable rights of the individual were “a lot of nonsense.” Wilson redefined “liberty” not as a natural right antecedent to the government, but as “the right of those who are governed to adjust government to their own needs and interests.” In other words, liberty no longer preceded the government as a gift from God, but was to be enjoyed at the grace of the government. The government, as Wilson reconceived of it, would be “beneficent and indispensable.”

Nothing quoted provides evidence for the claim that Wilson rejects equality. But does Wilson actually say that inalienable rights were "a lot of nonsense?" No he doesn't. This is a straightforward misrepresentation. Here's what Wilson says in his 1908 Constitutional Government in the United States:

No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle. The rights of man are easy to discourse of, may be very pleasingly magnified in the sentences of such constitutions as it used to satisfy the revolutionary ardor of French leaders to draw up and affect to put into operation; but they are infinitely hard to translate into practice.

Again, who could possibly disagree with any of that? There is indeed a great deal of nonsense talked about as inalienable rights! Wilson's explicit target here is the constitutions written up by the French revolutionaries, constitutions not typically celebrated by the likes of Justice Thomas. The general point Wilson is making is that a proclamation of fundamental rights is not the same thing as establishing law or a constitution. Justice Scalia made much the same point. Like Woodrow Wilson, Justice Scalia insisted that glittering declarations of rights do not a constitution make--the quality of a constitution lies in its structural design.

It is true that Wilson is somewhat wary of appeals to natural rights. In context, perhaps he has in mind the libertarian constitutional right to contract invented by the Lochner Court. Like Justice Thomas, Wilson is hostile to the imposition of new constitutional rights by judicial fiat. It is also true that Wilson prefers to construe the rights of the US Constitution as wise, prudential, just measures to secure individual liberty. In this way we return to Wilson's fundamental Burkeanism, a defense of the inherited rights of Englishmen and a critique of the speculative natural rights of the philosophers. 

For Wilson, the American Constitution secures individual liberty in part by codifying those rights, but primarily by granting to the people broad discretion over the shape of their government. It is true that Wilson is broadly skeptical of a rights-centric approach to constitutional interpretation. In this way, he follows in a long tradition of English Whiggism that is skeptical of individual rights against a properly constituted republican government. Jud Campbell has argued that a version of that constitutional theory characterized many of the founders themselves. But setting that deeper point aside, it is clear from a fair reading of Constitutional Government that Wilson is in favor of the established rights of the American constitution and is wary of philosophical inventions of new rights by the courts.

It is true that Wilson says political liberty is "the right of those who are governed to adjust government to their own needs and interests." How Justice Thomas moves from that to saying that liberty is no longer a God-given right but is now to be "enjoyed at the grace of the government," I do not know. It is worth noting that Wilson was more of an orthodox Christian than most if not all the canonical founders. Wilson in these pages is thoroughly Burkean. He quotes Burke constantly. He defends the tradition of English liberties from Magna Carta onward. His recurring point is that government must be made to serve the people, and not the other way around.

Thomas takes issue with Wilson's remark (an obscure reference to his textbook, The State) that the state is a "beneficent and indispensable organ of society." Again, do we deny that? Do we think we can do without the state? Is Justice Thomas an anarchist? 

3. Wilson's alleged contempt for the people

Justice Thomas writes:

You will not be surprised to learn that the progressives had a great deal of contempt for us, the American people. Before he entered politics, Wilson would describe the American people as “selfish, ignorant, timid, stubborn” and “foolish.” He lamented that we “do too much by vote” and too little by expert rule. He proposed that the people be ruled by administrators who use them as “tools.” He once again aspired to be like Germany, where the people, he said admiringly, were “docile and acquiescent.”

Before turning to the quotations, it is worth noting the two-pronged attack on Wilson. First Wilson is attacked for granting the people the right to "adjust government to their own needs and interests." That is, he is attacked for being too democratic and insufficiently attentive to the natural-rights limitations on democracy. Now Wilson is attacked for being anti-democratic, for having disdain for the people and stripping them of their right to self-government. Justice Thomas would be better served by sticking to one of these two lines of critique. 

Yes, Wilson describes the people as "selfish, ignorant, timid, stubborn" and "foolish." Here's the full quotation from "The Study of Administration":

In government, as in virtue, the hardest of hard things is to make progress. Formerly the reason for this was that the single person who was sovereign was generally either selfish, ignorant, timid, or a fool,–albeit there was now and again one who was wise. Nowadays the reason is that the many, the people, who are sovereign have no single ear which one can approach, and are selfish, ignorant, timid, stubborn, or foolish with the selfishness, the ignorances, the stubbornnesses, the timidities, or the follies of several thousand persons,–albeit there are hundreds who are wise.

Wilson's point here is that we cannot entrust absolute sovereign power in either the hands of the one or the many because both the one and the many are liable to the vices that afflict mankind. I agree, and I imagine every founder would agree too. I find it curious that Justice Thomas disagrees. Wilson's "contempt" for the people is no greater than that of our founders who designed a system of government specifically so that the combined selfishness, ignorance, timidity, stubbornness, and foolishness of the people would not be given absolute power. Madison in Federalist 10 famously speaks of the factiousness inherent in human nature, our tendency to succumb to pride, fanaticism, and the libido dominandi. Does Justice Thomas think the American people lack vices?

Does Wilson lament that we "do too much by vote?" Yes. And in late nineteenth century America, we were doing too much by vote. One of Wilson's targets here is the elected plural executive--he is a partisan of the short ballot. For precisely the reasons Publius rejected the plural executive at the federal level, Wilson rejects it at the state level. We should not be electing attorneys general and chairmen of the federal reserve. Wilson favors a competent bureaucracy that answers to an elected executive as authorized by an elected, bicameral legislature. 

Does Wilson say the voters must be "tools" in the hands of the administrators? I have no idea what the reference is. But here's one thing I know Wilson did say:

What I fear, therefore, is a government of experts. God forbid that in a democratic country we should resign the task and give the government over to experts. What are we for if we are to be scientifically taken care of by a small number of gentlemen who are the only men who understand the job? Because if we don’t understand the job, then we are not a free people.

Does Wilson demand that Americans become "docile and acquiescent?" No he does not. Here's the full quotation:

a public which is so modest may at least be expected to be very docile and acquiescent in learning what things it has not a right to think and speak about imperatively. It may be sluggish, but it will not be meddlesome. It will submit to be instructed before it tries to instruct. Its political education will come before its political activity. In trying to instruct our own public opinion, we are dealing with a pupil apt to think itself quite sufficiently instructed beforehand.

To which I say amen. Wilson does not make an idol of public opinion, nor do I, nor do the Founders. Wilson says that public opinion must be instructed and tutored. Would Justice Thomas prefer a wild and savage public? Would he have us ruled by the Gallup Poll? Or would he, like Wilson and Publius, prefer constitutional measures that "refine and enlarge" the public views?

Some Thoughts on the Rule of Law in Plato's Statesman

I recently had occasion to read Plato’s Statesman, an exceedingly difficult dialogue, which I do not understand. Perhaps the most famous discussion in the Statesman (at least the only discussion with which I was aware before reading it) concerns the comparative merits of the rule of man and the rule of law. The position articulated by the Eleatic Stranger in the dialogue is that the rule of the best man—the true knower of political science—without law is indeed ideal, but for various reasons this form of rule cannot be relied on, and so the rule of law is the second best.

Ideally, the rule of the true statesman without law is best because law can only deal with generalities, not the complexities of individual situations. This is a familiar argument found also in Aristotle and, unsurprisingly, Thomas Aquinas. In the words of the Stranger:

Because (a) law would never be capable of comprehending with precision for all simultaneously the best and the most just and enjoining the best, for the dissimilarities of human beings and of their actions and the fact that almost none of the human things is ever at rest do not allow any art whatsoever to declare in any case anything simple about all and over the entire time. (294 A-B. With apologies, I quote from the almost unintelligible Benardete translation)

Nevertheless, the Stranger offers a few distinct arguments in favor of the rule of law. The first (perhaps implicit) argument is that the rule of the best, even if possible, might be unwelcome by the people. Making a familiar Platonic analogy, the Stranger notes that the true doctor, in order to heal his patient, might need to violate their consent or subject them to painful treatments. Similar pain would necessarily accompany the (lawless) rule of the true statesman. The darkness of the Stranger’s description of this kind of political rule indicates that it will be predictably unacceptable by the people. This is an argument against the rule of the best on grounds of perceived illegitimacy:

It’s necessary then, it seems, that this too be of regimes the outstandingly right regime, and the only regime in which one might find the rulers truly with know-how and not only seeming to have it, regardless of whether they rule in conformity with laws or without laws, and over willing or unwilling (subjects), and themselves poor or rich, for one must not calculate in terms of any correctness any of these things in any way as a factor … And so regardless of whether they purge the city for the good by killing some or maybe exiling, or they make the city smaller by sending out colonies somewhere like swarms of bees, or they increase it by importing some different people from somewhere or other outside and making them citizens, as long as they are employing science and the just and, in keeping it safe, make it better from worse to the best of their ability, we must state that this then is the only right regime and in accordance with definitions of this sort. And all the rest we speak of, we must say of them that they are not genuine (legitimate) and in their being are not, but they have imitated this one, and some, which we speak of as with good laws, have done it with more beautiful results, and all the rest with some uglier. (293 D-E)

A second argument is that it will be practically impossible even for the true statesman to actually determine what is best for each individual citizen. Offering another familiar analogy to a sports trainer, the Stranger notes that collective leadership often requires reliance on adequate maxims and rules that work in the aggregate. This is an argument from practical epistemic limitations (295 A-B).

Finally, the Stranger suggests that it is unlikely if not impossible to ever discover a true statesman with full knowledge of political science. This hypothetical regime must be distinguished from all other regimes, he notes, “as a god from human beings” (301 B). Earlier, the dialogue has established that any vision of statesmanship that relies on an analogy to divine leadership must be rejected. This is why, for example, the Stranger rejects the image of the shepherd as the paradigm of statesmanship. That image implies the rule of a divine superior over men, when in fact politics consists in the rule of man over man:

I suspect that this figure of the divine shepherd is still too big to be in accordance with a king, and that those who are statesmen here and now are far more similar in their natures to the ruled than the divine shepherd is and have shared an education and nurture more nearly the same as theirs. (276B-C)

So the conclusion the Stranger draws is that rather than hope that a divine-like statesman comes to power, we must rely on the rule of written laws:

But as it is, since there is no king that comes to be in the cities, as we in point of fact assert, who’s of the sort that naturally arises in hives – one who’s right from the start exceptional in his body and his soul – they must, it seems, once they’ve come together, write up writings while they run after the traces of the truest regime. (301E)

So we have a weak argument here—we must accept the rule of law as a second best, the most practicable arrangement—immediately followed by a far more controversial thesis—we must never permit any alteration or violation of the laws. Even if the great lawgiver were to return, we must not permit him to revise any of the established laws. That prohibition applies even if those reforms would improve the laws. So the Stranger’s argument is not simply a practical defense of the rule of law as second best, it is a rigid repudiation of any legal reform whatsoever.

whoever has the nerve to act contrary to these writings is acting contrary to the laws that have been laid down on the basis of much trial and error, when certain advisers gave several pieces of advice in a neat and elegant way and persuaded the multitude to set them down, and he multiplies a mistake many times itself and would overturn every action to a still greater extent than the writings … It’s for these reasons that for those who lay down laws and writings about anything whatsoever, the prohibition against either any one or any multitude ever doing anything whatsoever contrary to them is a second sailing. (300 B-C).

(That use of "second sailing" is intriguing given the echo of Socrates in the Phaedo, as is the discussion's connection to Socrates' critique of writing in the Phaedrus, but let's set those points aside). 

This strong argument implies an account of the sanctity of the laws. The Stranger concedes that on this view, statesmanship is wholly different from all other sciences, which require constant innovation and improvement. He induces his interlocutor (a young man named Socrates, not the real Socrates who is largely a spectator in the dialogue) to accept the uniqueness of political science: 

“It’s plain: all the arts we have would completely perish, and they would never come to be at a later time on account of this law that forbids their search. And hence life, which even now is hard, would prove to be altogether unlivable throughout that time” (299 E). 

What is true of statesmanship would be fatal to all other sciences.

So the Stranger ultimately defends radical conformity to the inherited laws and rules out any reform whatsoever. Perhaps we might modify the Stranger’s suggestion to be that any reform of the laws must not appear to be an innovation but must instead be justified as consistent with the ancient laws. The other sciences derive their public legitimacy from a promise of constant innovation and improvement. If a doctor were to tell a patient “I like to stick to the old ways in treating cancer,” the patient would reasonably find a new doctor. But for some reason the public legitimacy of political science relies much more firmly on tradition.

This discussion recalls a few other classical statements on the need for a rigid adherence to law and a rejection of innovation. In Book 2 of the Politics, for example, Aristotle takes up the example of Hippodamus of Miletus, who sought to incentivize continual political innovation: “He also wanted to enact a law concerning those who discover something useful to the city, so that they might obtain honor” (1268 A, quoting from the Lord translation). This proposal raises the question of whether political science is like the other sciences in profiting from continual experimentation and innovation:

This has been advantageous, at any rate, in the other sciences—medicine, for example, has changed from its traditional ways, and gymnastic, and the arts and capacities generally, so that as political expertise too is to be regarded as one of these, it is clear that the same must necessarily hold concerning this as well. (1268 B)

Aristotle acknowledges that in general it is better to seek the good not the traditional, and precisely because the law is a second best—concerning the general not the particular—laws must be periodically reformed. Still, he insists on a disanalogy between political science and the other sciences, and so he rejects a normalization of political reform: 

some laws must be changed at some times; yet to those investigating it in another manner this would seem to require much caution. For when the improvement is small, and since it is a bad thing to habituate people to the reckless dissolution of laws, it is evident that some errors both of the legislators and of the rulers should be let go; for the city will not be benefited as much from changing them as it will be harmed through being habituated to disobey the rulers. And the argument from the example of the arts is false. Change in an art is not like change in law; for law has no strength with respect to obedience apart from habit, and this is not created except over a period of time. Hence the easy alteration of existing laws in favor of new and different ones weakens the power of law itself. (1269 A)

Similar discussions are found in Thucydides’ History of the Peloponnesian War. In the early debate in Sparta over whether the Spartans should declare war on Athens, the Corinthians criticize Sparta for their conservative refusal to depart from ancient ways. It is this rigid adherence to law that has allowed the Athenians to surpass them. The Corinthians implore the Spartans to embrace innovation and to join the war against Athens:

The Athenians are addicted to innovation, and their designs are characterized by swiftness alike in conception and execution; you have a genius for keeping what you have got, accompanied by a total want of invention, and when forced to act you never go far enough. Again, they are adventurous beyond their power, and daring beyond their judgment, and in danger they are sanguine; your wont is to attempt less than is justified by your power, to mistrust even what is sanctioned by your judgment, and to fancy that from danger there is no release. … in the present instance, as we have just shown, your habits are old-fashioned as compared with theirs. It is the law as in art, so in politics, that improvements ever prevail; and though fixed usages may be best for undisturbed communities, constant necessities of action must be accompanied by the constant improvement of methods. Thus it happens that the vast experience of Athens has carried her further than you on the path of innovation.

One of the Spartan speakers, King Archidamus, counsels continued adherence to the ancient Spartan ways. He warns against war with Athens on grounds that (1) the Spartans are unprepared; and (2) such a radical departure from traditional Spartan policy would undermine the sources of Spartan greatness:

The quality which they condemn is really nothing but a wise moderation; thanks to its possession, we alone do not become insolent in success and give way less than others in misfortune; we are not carried away by the pleasure of hearing ourselves cheered on to risks which our judgment condemns; nor, if annoyed, are we any the more convinced by attempts to exasperate us by accusation. We are both warlike and wise, and it is our sense of order that makes us so. We are warlike, because self-control contains honour as a chief constituent, and honour bravery. And we are wise, because we are educated with too little learning to despise the laws, and with too severe a self-control to disobey them, and are brought up not to be too knowing in useless matters—such as the knowledge which can give a specious criticism of an enemy’s plans in theory, but fails to assail them with equal success in practice—but are taught to consider that the schemes of our enemies are not dissimilar to our own, and that the freaks of chance are not determinable by calculation.

Under the influence of a more passionate (and briefer) Spartan speech, the Spartans ultimately vote to abandon their ancient reticence and to join the war.

A parallel discussion is found in the Mytilenean debate, in which the Athenians debate whether to reverse their decision of the previous day to massacre all the inhabitants of Mytilene. Cleon, an Athenian general, denounces the Athenian democracy for its inconstancy, and insists that even if the decision to massacre the Mytileneans was a mistake, it must not be reversed:

I have often before now been convinced that a democracy is incapable of empire, and never more so than by your present change of mind in the matter of Mitylene. Fears or plots being unknown to you in your daily relations with each other, you feel just the same with regard to your allies, and never reflect that the mistakes into which you may be led by listening to their appeals, or by giving way to your own compassion, are full of danger to yourselves, and bring you no thanks for your weakness from your allies; entirely forgetting that your empire is a despotism and your subjects disaffected conspirators, whose obedience is ensured not by your suicidal concessions, but by the superiority given you by your own strength and not their loyalty. The most alarming feature in the case is the constant change of measures with which we appear to be threatened, and our seeming ignorance of the fact that bad laws which are never changed are better for a city than good ones that have no authority; that unlearned loyalty is more serviceable than quick-witted insubordination; and that ordinary men usually manage public affairs better than their more gifted fellows. The latter are always wanting to appear wiser than the laws, and to overrule every proposition brought forward, thinking that they cannot show their wit in more important matters, and by such behaviour too often ruin their country; while those who mistrust their own cleverness are content to be less learned than the laws, and less able to pick holes in the speech of a good speaker; and being fair judges rather than rival athletes, generally conduct affairs successfully. These we ought to imitate, instead of being led on by cleverness and intellectual rivalry to advise your people against our real opinions.

This speech is countered by that of Diodotus, who persuades the Athenians to rethink their earlier, rash decision and thus celebrates deliberation (and change) as a wise course for democratic politics.

Returning to the Statesman, the Stranger’s argument raises a general puzzle about politics as a science. If politics is in fact a science—that is, a form of knowledge—then it is subject to progress and improvement. Political science can advance even if it can never be perfected. But an interesting feature, by hypothesis, of political science is that it itself counsels against improvement. This is because, as Aristotle put it, one unique feature of law is that it derives its strength from the habit of obedience. As we have seen, political science thus differs from the other sciences, whose very legitimacy derives from a belief in progress and improvement. We want our doctors to rely on “cutting edge” science, not to adhere to the customary ways. Political science uniquely—for the sake of its public legitimacy and effectiveness—disavows its claim to the status of science.