F. Hayek, The United States on the road to socialism

The United States is, in fact, unique in that the stimulation received from European reform movements early crystallized into what came to be known significantly as the “public administration movement.” It played a role somewhat similar to that of the Fabian movement in Britain or of the “socialists of the chair” movement in Germany. With efficiency in government as its watchword, it was skilfully designed to enlist the support of the business community for basically socialist ends.

The members of this movement, generally with the sympathetic support of the “progressives,” directed their heaviest attack against the traditional safeguards of individual liberty, such as the rule of law, constitutional restraints, judicial review, and the conception of a “fundamental law.” It was characteristic of these “experts in administration” that they were equally antagonistic to (and commonly largely ignorant of) both law and economics. In their efforts to create a “science” of administration, they were guided by a rather naïve conception of “scientific” procedure and showed all the contempt for tradition and principles characteristic of the extreme rationalist. It was they who did most to popularize the idea that “liberty for liberty’s sake is clearly a meaningless notion: it must be liberty to do and enjoy something. If more people are buying automobiles and taking vacations, there is more liberty.” It was mainly because of their efforts that Continental European conceptions of administrative powers were introduced into the United States rather earlier than into England.

Thus, as early as 1921, one of the most distinguished American students of jurisprudence could speak of “a tendency away from courts and law and a reversion to justice without law in the form of revival of executive and even of legislative justice and reliance upon arbitrary governmental power.” A few years later a standard work on administrative law could already represent it as accepted doctrine that “every public officer has, marked out for him by law, a certain area of ‘jurisdiction.’ Within the boundaries of that area he can act freely according to his own discretion, and the courts will respect his action as final and not inquire into its rightfulness.

But if he oversteps those bounds, then the court will intervene. In this form, the law of court review of the acts of public officers becomes simply a branch of the law of ultra vires. The only question before the courts is one of jurisdiction, and the court has no control of the officer’s exercise of discretion within that jurisdiction.” The reaction against the tradition of stringent control of the courts over not only administrative but also legislative action had, in fact, commenced some time before the first World War. As an issue of practical politics it became important for the first time in Senator La Follette’s campaign for the presidency in 1924, when he made the curbing of the power of the courts an important part of his platform.

It is mainly because of this tradition which the Senator established that, in the United States more than elsewhere, the progressives have become the main advocates of the extension of the discretionary powers of the administrative agency. By the end of the 1930s, this characteristic of the American progressives had become so marked that even European socialists, when “first faced with the dispute between the American liberals and the American conservatives concerning the questions of administrative law and administrative discretion,” were inclined “to warn them against the inherent dangers of the rise of administrative discretion, and to tell them that we [i.e., the European socialists] could vouch for the truth of the stand of the American conservative.” But they were soon mollified when they discovered how greatly this attitude of the progressives facilitated the gradual and unnoticed movement of the American system toward socialism.

The conflict referred to above reached its height, of course, during the Roosevelt era, but the way had already been prepared for the developments of that time by the intellectual trends of the preceding decade. The 1920s and early 1930s had seen a flood of antirule-of-law literature which had considerable influence on the later developments. We can mention here only two characteristic examples. One of the most active of those who led the frontal attack on the American tradition of a “government of law and not of men” was Professor Charles G. Haines, who not only represented the traditional ideal as an illusion but seriously pleaded that “the American people should establish governments on a theory of trust in men in public affairs.”

To realize how completely this is in conflict with the whole conception underlying the American Constitution, one need merely remember Thomas Jefferson’s statement that “free government is founded in jealousy, not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind those we are obliged to trust with power … our Constitution has accordingly fixed the limits to which, and no further, our confidence may go… . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Perhaps even more characteristic of the intellectual tendencies of the time is a work by the late justice Jerome Frank, called Law and the Modern Mind, which, when it first appeared in 1930, enjoyed a success which for the reader of today is not quite easy to understand. It constitutes a violent attack on the whole ideal of the certainty of the law, which the author ridicules as the product of “a childish need for an authoritative father.”

Basing itself on psychoanalytic theory, the work supplied just the kind of justification for a contempt for the traditional ideals that a generation unwilling to accept any limitation on collective action wanted. It was the young men brought up on such ideas who became the ready instruments of the paternalistic policies of the New Deal. Toward the end of the 1930s there was increasing uneasiness over these developments, which led to the appointment of a committee of investigation, the U.S. Attorney General’s Committee on Administrative Procedure, whose task was similar to that of the British committee of ten years earlier. But this, too, even more than the British committee, tended in its Majority Report to represent what was happening as both inevitable and harmless.

The general tenor of the report is best described in the words of Dean Roscoe Pound: “Even if quite unintended, the majority are moving in the line of administrative absolutism which is a phase of the rising absolutism throughout the world. Ideas of the disappearance of law, of a society in which there will be no law, or only one law, namely that there are no laws but only administrative orders; doctrines that there are no such things as rights and that laws are only threats of exercise of state force, rules and principles being nothing but superstition and pious wish, a teaching that separation of powers is an outmoded eighteenth century fashion of thought, that the common law doctrine of the supremacy of law had been outgrown, and expounding of a public law which is to be a ‘subordinating law,’ subordinating the interests of the individual to those of the public official and allowing the latter to identify one side of a controversy with the public interest and so give it a greater value and ignore the others: and finally a theory that law is whatever is done officially and so whatever is done officially is law and beyond criticism by lawyers—such is the setting in which the proposals of the majority must be seen.”