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Unmasking the Administrative State

The Crisis of American Politics in the Twenty-First Century

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Publication Details

Hardcover / 408 pages
ISBN: 9781641770231
AVAILABLE: 1/29/2019

Unmasking the Administrative State
The Crisis of American Politics in the Twenty-First Century

The election of Donald J. Trump to the presidency shocked the political establishment, triggering a wave of hysteria among the bicoastal elite that may yet never subside. The biggest shockwaves of all however were felt not in the progressive parishes of Manhattan or San Francisco, but in the halls of the political elite’s cherished and oft-overlooked center of power: Washington, D.C.’s sprawling “administrative state.” For President Trump represented an existential threat to its denizens, which came to be known as “swamp creatures.”

How did it come to pass that the “deconstruction” of this obscure institution – the “draining of the swamp” – would become a core aim of the Trump administration, impacting everything from judicial appointments to the federal budget and regulatory policy? Could public aversion to policies and practices for which the administrative state was sometimes surreptitiously and other times overtly responsible explain President Trump’s rise? What was the intellectual basis for the argument that the administrative state need be dismantled in the first place?

The answers to these questions and many more lie in the underappreciated but revolutionary scholarship of Professor John Marini, collected in his timely, comprehensive, accessible new book, Unmasking the Administrative State.

Unmasking the Administrative State tells the critical missed story of the last century of political history: The ascendance of the theory behind and resultant growth of an administrative state that has supplanted limited constitutional government with the tyranny of unbounded anticonstitutional bureaucracy. As Prof. Marini argues, the administrative state, an invented fourth branch of government, has usurped and consolidated the powers of the other three branches in the hands of unelected bureaucratic elites. It represents the living, breathing manifestation of technocratic progressive government, a system that violates the letter of the Constitution and the spirit of our Declaration of Independence. In so doing, the administrative state attacks the sovereign individual, undermines political legitimacy by rejecting consent of the governed and subverts justice itself. In sum, Prof. Marini argues that the administrative state’s rise represents a change of the regime – who rules – an actual overthrow of our Constitution by the elites over “we the people.”

In Unmasking the Administrative State, Prof. Marini illustrates the existential threat of the administrate state to our Republic, exposes the regressive philosophy from which it springs and argues for the reassertion of the Founding principles to restore self-government.

Unmasking the Administrative State aims to educate all Americans from the “deplorable” layman to the veteran policymaker. As Justice Clarence Thomas’s self-described first mentor on the Constitution, Prof. Marini’s views have inspired his jurisprudential philosophy at the Supreme Court. They have served as the unacknowledged intellectual basis for the Trump administration’s efforts to “deconstruct the administrative state.” Their influence continues to grow among conservative lawyers, jurists and activists. The time is ripe to apply the lessons of Prof. Marini’s life’s work and seize this remarkable opportunity to restore power to its rightful owners: the American people.

About the Author

John Marini is the preeminent scholar on the theory and practice of the administrative state, and principle exponent of the idea that the administrative state in violating the separation of powers and conferring law-making authority on the unelected bureaucracy and judiciary represents the radical overturning of the Constitution and repudiation of our Founding principles.

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AMERICA HAS A PROBLEM, not because of our Constitution but because constitutionalism as a theoretical doctrine is no longer meaningful in our politics. A constitution is only meaningful if its principles, which authorize government, are understood to be permanent and unchangeable, in contrast to the statute laws made by government that alter with circumstances and changing political requirements of each generation. If a written constitution is to have any meaning, it must have a rational or theoretical ground that distinguishes it from government. When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or are denied, the constitution can no longer impose limits on the power of government. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals. When that transformation occurred, as it did in the twentieth century, the sovereignty of the people, established by the Constitution, was replaced by the sovereignty of government, understood in terms of the modern concept of the rational or administrative state. It was a theoretical doctrine, the philosophy of History, that effected this transformation and established the intellectual and moral foundations of progressive politics.

Established on the foundation of natural rights, constitutionalism has been steadily undermined by the acceptance of the new doctrine of History. The Progressive movement, which is the political instrument of that theoretical revolution, had as its fundamental purpose the destruction of the political and moral authority of the US Constitution. Because of the success of the Progressive movement, contemporary American politics is animated by a political theory denying permanent principles of right derived from nature and reason. In exposing the theoretical roots of Progressivism and the liberalism it has spawned, it is possible to reveal the difference between a constitutional government and the modern state. at difference, both theoretical and practical, becomes apparent when comparing constitutionalism as it was understood by the American Founders and Thomas Paine and its transformation at the hands of the most successful Progressive politician of the twentieth century, Franklin Roosevelt.

Constitutionalism: Two Views

Thomas Paine spoke for nearly all the Founding Fathers when he wrote: “A Constitution is a thing antecedent to a Government; and a Government is only the creature of a Constitution. The Constitution of a country is not the act of its Government, but of the people constituting a Government.” Paine said he had to deny what had “been thought a considerable advance towards establishing the principles of Freedom . . . that Government is a compact between those who govern and those who are governed.” He knew that the defense of the sovereignty of the people and the protection of their individual rights required the rm establishment of the distinction between government and constitution, with the latter resting upon a social compact of the people themselves. The fact therefore must be, he insisted, “that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a Government: and this is the only mode in which Governments have a right to arise, and the only principle on which they have a right to exist.”

The social compact, therefore, must be understood in terms of a distinction between nature and convention. A constitution, unlike government, derives its authority from the laws of nature, or reason, which requires the protection of the natural rights of individuals as the chief purpose of government. It rests upon a political theory that established principles designed to serve that purpose. Consequently, it is possible to determine the powers and limitations of government precisely because its authority is derived from a more fundamental compact.

A constitution, therefore, Paine noted,

is the body of elements . . . which contains the principles on which the Government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the duration of parliaments . . . the powers which the executive part of the Government shall have…and the principles on which it shall act, and by which it shall be bound.

Paine assumed that nature and reason, not government, established the ground from which those principles arose. e distinction between a constitution and government must rest upon the possibility of distinguishing nature from convention, reason from will (or passion), and natural (or fundamental) from positive law. e Founders, like Paine, had been unwilling to risk the defense of human freedom and the rights of individuals by reaffirming the age-old corrupt bargain between the rulers and the ruled. Consequently, the American Founders had insisted that the social compact is of the people themselves. It was not promulgated with the permission and consent of any actual governing body but rested on the eternal laws of nature and reason. Only upon the foundation of natural right had it become possible to establish the rational authority of an enlightened people to institute government on its own behalf.

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