John Hasnas says that libertarians shouldn’t delude themselves into thinking that “representative government could function without the administrative state” or that “supporters of small government…will ever come to power as a result of the knowledgeable support of a majority of the electorate.” Likewise, Clyde Wayne Crews argues that the only path to legitimacy is to remove most areas of life from public policy altogether. The only good choice is to stop playing the game of politics entirely, they say.
Well, you may be through with the game, but the game ain’t through with you.
Libertarians are famously ambivalent about democracy, and my current interlocutors put that conflictedness on display in their responses to my original essay. On the one hand, Crews bristles at my suggestion that administrators be “made accountable to those parts of the public capable of meaningfully judging their results,” because it sounds like I am itching to exclude some voices that ought to legitimately be heard. The story is that if only widespread common sense triumphed instead of elite-held dogmas about the need for a protector, we would be better off.
On the other hand, there is a sense that we need to get a massive departure from the status quo, in which the very nature of our state is profoundly transformed and narrowed, and that it isn’t terribly important who supports such a change. Hasnas says “it is not disrespectful to my fellow citizens to point out that they are unlikely to realize the benefits of these functions if the functions are performed by political agencies.” Educating others may well be harmless, but following this logic further requires assuming a conclusion that others (myself included) do not reach. To override that fact of disagreement—by saying that it doesn’t matter so much what citizens or political actors understand as long as we know the truth—is surely not a sign of respect. Neither is flippantly dismissing the idea that the process of democratic choice could make “the desires of large numbers of people magically become invested with moral authority.”
I really don’t know what kind of country we would have if our political leaders, alone among the nations of the world, had long ago decided to limit legal regulations to those evolved through the common law. In the early years of our republic, that possibility may have been on the table; the First Congress considered wording what is now the 10th Amendment to say that any power not “expressly” granted to Congress is reserved to the states or the people. But they did not choose that path. We do not live in that country.
Nor is it clear to me that we really could, human nature being what it is. Although libertarians prefer to exclude anything involving state coercion from the category of “spontaneous order,” there seems to be a near-universal human tendency toward handling certain collective problems through government. Figuring out how that government can be a beneficial (or at least a benign) agent of social cohesion, and do so while retaining legitimacy, strikes me as the inevitable central question for all who dare to dabble in social theory, libertarians included.
That doesn’t at all mean getting starry-eyed about the virtues of democracy, or its metaphysical foundation in the consent of the governed. I share Schumpeter’s skepticism on that front. Representation is imperfect; the idea that it can merely transmit the public’s pre-existing will is usually incoherent; and there is no doubt that collective choices will often be oppressive. But recognizing representative democracy’s cons should not blind us to its pros. Often it can do a tolerably good job of learning about social problems and offering meliorative solutions; the need to court electoral support ought to drive socially beneficial choices, just as the profit motive drives capitalists to produce consumer surplus; and there is a long history of representative government achieving legitimacy. That’s not a bad package deal—even if, as I very much agree with Hasnas, the idea that it can somehow do without an administrative state of some kind is probably fantastic.
But what kind of administrative state? Well, that brings me back to my original arguments. It seems to me that Crews and Hasnas, as much as Vermeule, have arguments that are too powerful to allow them to draw any distinctions. Vermeule says “nothing to see here,” and they say “let’s call the whole thing off.” My argument is precisely a plea to avoid this kind of dichotomous thinking, such that we can think about how our current form of government might pursue a renewal of its legitimacy, and respond in an incremental fashion. Not all instantiations of the administrative state are equally offensive to liberty, the rule of law, or the Constitution; not all attempts to create accountability, both real and perceived, are equally fruitless. Libertarians do themselves a real disservice if they refuse to shape the outcomes of the reform game, because the larger political game is going to go on either way.
And there it is likely, as Crews says, that there is some common ground to find. I have cautiously supported some version of REINS before, but only if it is accompanied by an attempt to make Congress equal to the task of judging regulations. To the extent that people want Congress to be capable of getting things “undone,” as he says, they need to build capacity that they currently lack; unfortunately, things won’t get undone on their own.
And I agree that we should seek to allow new social developments to “outrun” the administrative state when possible. A silver lining to our cloudy legitimacy situation is that there are some real opportunities for this. In the case of self-driving cars, for example, the Googles of the world are often able to proceed with no more government oversight than an informal meeting with state and local leaders. Because our tech giants often possess greater legitimacy than the state at the present juncture, they find themselves with some socially beneficial room to maneuver. Undoubtedly there will be problems that lead to much more complicated politics down the road (for autonomous vehicles and other analogous areas of disruption), quite possibly because of the companies’ own desires to regulate their potential competitors into oblivion, but I agree with both Crews and Hasnas that for now we should enjoy the ride.
 Joseph Schumpeter, Capitalism, Socialism, and Democracy (Harper & Row, 1942), 248 fn 18 (Chapter XX).