In the 1830s, the French aristocrat Alexis de Tocqueville wrote
that 'insufferable despotism' would prevail if America ever
acquired a national administrative state. Today's Tea Partiers
evidently believe that, after a great wrong turn in the early
twentieth century, Tocqueville's nightmare has come true. In those
years, it seems, a group of 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. Far
from following 'un-American' models, American statebuilders
rejected the leading European scheme for constraining government,
the Rechtsstaat, a state of rules. Instead, they looked to an
Anglo-American tradition that equated the rule of law with the rule
of courts and counted on judges to review the bases for
administrators' decisions aggressively. Soon, however, even judges
realized that strict judicial review shifted to generalist courts
decisions best left to experts. The most masterful judges,
including Charles Evans Hughes, Chief Justice of the United States
from 1930 to 1941, ultimately decided that a 'day in court' was
unnecessary if individuals had already had a 'day in commission'
where the fundamentals of due process and fair play prevailed. 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 presidents
would not use administratively distributed largess as an
independent source of political power.
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