Monday, January 18, 2016

Bringing Intellectual History Back In

[By Anne Kornhauser]

Initially, this was to be a post on militant democracy. I decided to defer that topic in order to reflect on a recent post on this site. Blogging, I think, is conducive to swerving, but swerving is not conducive to long, hard thinking, so please read the following in the spirit of an initial impression of an intellectual historian who cannot pass up the chance to comment on a discussion of her subfield.

In his response to Jeremy Kessler's approbatory and thoughtful review of Dan Ernst's terrific book on the emergence and legitimation of the administrative state, Mark Tushnet calls for the integration of the intellectual history of the administrative state with its political-institutional history, how the state governs in practice. In this Harvard Law Review forum, Tushnet acknowledges that Ernst, in seeking to show that the administrative state was neither weak nor unshackled by law and that it was consciously crafted as such, features this integrative approach in his book as does Kessler in his review. But Tushnet wants a more robust, a "thicker" intellectual history, particularly of administrative law. This, Tushnet suggests, will be a more effective parry to the conservative thrust against the "lawless" administrative state.

In addition to their scholarly contributions, these three scholars have a political concern: the continuous outpouring of (mostly) legal scholarship that condemns the administrative state for trampling of the constitution. All agree that this idea of a bureaucratic state run amok has filtered into public discourse, informing the ideology of the Tea Party along with other, less vociferous conservative critiques of centralized administrative governance. But these ideas are misplaced and a more intensive reconstruction of the intellectual underpinnings of the New Deal state--especially assumptions about the law--would help to defuse them.
James Landis (LC)
Tushnet's central premise for employing intellectual history as a political corrective rests on the remove of intellectuals from the institutions of governance they seek to criticize--or defend. Tushnet does not necessarily mean a literal remove--he uses the term "disjuncture" to describe the gap between the conceptualization of the administrative state culled from scholarly sources and the actual functioning of state institutions, a disconnect that can affect even those operating in the thick of state institutions. The common ground between those on the outside and the entrenched lies in the need to make institutions conform to ideas, however interpreted, not the other way around. Tushnet cites the legal thinker James Landis's overwrought boosterism of the administrative state the New Dealers made, not least Landis himself. I concur. In my book I read Landis and others like him against the grain to locate underlying ambivalences and unresolved tensions behind a manifestly unvarnished defense of the state.                                                 

An undistorted intellectual justification of the administrative state would undercut its critics. Meanwhile, Tushnet argues, historians should similarly examine the conceptual apparatuses of contemporaneous scholarly criticisms of the state to uncover intellectual errors based on this disjuncture or on faulty intellectual assumptions. Tushnet contends that "the conservative challenge is vulnerable on jurisprudential grounds as well [as political grounds], at least in the absence of a conservative reaction to legal realism that goes beyond mere disagreement" [127]. The political riposte has not worked on its own; it is time to bring out the heavy artillery--intellectual history.

It is rare to see intellectual history invoked as a way to enhance broad historical understanding, let alone to effect political or intellectual change in the present, and I want to celebrate this invocation. But I also want to probe the explanatory power with which Tushnet endows the mismatch between scholarly ideas and institutional practice, in two ways. First, I think this disjuncture can be an advantage not only a detriment to scholarly understanding.

Scholars are trained to keep some perspective on their object of study. This perspective cannot be from an elusive Archimedean point, but it does require some consciousness of the relationship to one's sources, including ideas. That consciousness, in turn, usually induces a measure of distance between scholar and source. For example, the German émigré legal thinkers in my book drew on ideas from their upbringing under Weimar that allowed them to understand, in ways that most American thinkers could not, the magnitude of the transformation of the American state in the 1930s and 1940s and the isomorphism between that state and other political regimes. But, usually, they adapted those ideas rather than rigidly cling to them. There are cases, such as that of Landis and other New Deal enthusiasts, where the distance between the scholar and their intellectual influences appears to evaporate before more pressing needs. This does not mean it has disappeared entirely. Creditable scholarship--scholarship that cannot be accused of pure propagandizing--must be understood as something more than politics tout court.

Second, the limited intellectual resources available to scholars need not detract from their analysis. In Tushnet's frame, ideas need not trump institutions, though I agree with him that they often do. Yet context and experience shape the interpretation of texts and it is important for intellectual historians to try to figure out when a scholar is trying to resist those forces. This is one lesson I derive from Tushnet. I would add that scholars are not limited to currently fashionable ideas. What constitutes the plausible universe of ideas? That is a question every intellectual historian ought to ask. One reason I wanted to look at liberal and social democratic critiques of the administrative state was to break down the artificially imposed binary between the liberal statists and their conservative critics. The aim of the book was not to show that one side was right and the other wrong. It was to bring greater clarity and richness to the intellectual and political debates about the administrative state for the sake of historical understanding, but also so that we might extricate ourselves from our own arid and misleading political discourse. On this goal, it seems, all the authors agree. The interesting conversation begun by these three incisive scholars concerns how to get there.