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

Abstract

The French aristocrat Alexis de Tocqueville once wrote that "insufferable despotism" would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that Tocqueville's nightmare has come true. Between 1900 and 1940, it seems, radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom. Tocqueville's Nightmare, shows, to the contrary, that 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 designed into the administrative state. American statebuilders rejected the leading European scheme for constraining government, the Rechtsstaat, a state of rules, in favor of the Anglo-American notion of the rule of law as a rule of courts, in which judges aggressively reviewed administrators' decisions. Soon, however, even judges realized that strict judicial review shifted decisions best left to experts to the courts. The most masterful judges ultimately decided that a "day in court" was unnecessary if individuals had already had a "day in commission," in which fundamentals of due process had been observed. Not only did this procedural notion of the rule of law solve 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 executives would not use administratively distributed largess as an independent source of political power.

Keywords: administrative law, legal history