Politics of administrative law

Politics of Administrative Law -- Weinstein, Wilson, and Shamir

What is the political philosophy behind America's current state of federal and state administrative regulation? Although in an ideal historical environment, this would be easy to see in the recorded words of the Founding Fathers, the historian of American law is instead faced with a challenge, for the relationship between individual, state, and national government has changed considerably since this nation's founding. Also, the concept behind the historical and philosophic construction of administrative laws has varies considerably; depending on whether the political paradigm selected is political and corporative, economic, pluralist, or judicial in its nature and focus.

The historians and political philosophers James Weinstein, James Q. Wilson, and Ronen Shamir, would no doubt all agree that a seismic shift occurred during the turn of the century in America, in terms of the way individual rights were conceptualized, and continued to become prioritized over the course of the century from a legal and political perspective. During this period of time, America shifted from an America without a federal income tax, an America where the Bill of Rights was only strictly applicable to federal rather than state legislation, to a nation with a complex civil rights system of litigation and a bureaucratic tax and federal civil service structure. Over the course of the century and afterwards, legislation was passed to make American industry more humane, and to change the integration of women and blue-collar workers into the American nation. The 20th century saw changes as women began to vote, and worker's rights became protected in the capitalist system, and African-American rights were guaranteed legally and legislatively. The political and economic, as well as legal reasons behind this shift, however, remain controversial.

James Weinstein has been one of the foremost historical and legal advocates of what he terms "corporate liberalism," in tracing the reasons for this shift from the value placed upon the American ideal of independence, autonomy, and capitalist freedom to the acknowledgement that the state must protect individual rights in a more activist fashion. Weinstein believes that the urban socialist movement, originally designated to create corporate structures of unity to force the state to recognize the need to protect the rights of workers to unionize and women to vote, is key to understanding the development of an American state that actively protects individual rights rather than to passively allow capitalism and individual rights to be exercised. (Weinstein, 1967)

In his seminal text, The Decline of American Socialism James Weinstein contended that, rather than being a primarily individualist or mosaic structure, the urban America of the Progressive era was far more cooperative than one might believe, from a social, legal, and political perspective. In this controversial text, which functions on its surface as a history of the now-defunct American Socialist party, Weinstein stressed that organizations such as the supposedly marginal Socialist Party were actually quite foundational in structuring what we think of as American law and society today. Because of the political and ideological influence of the Socialist Party, America no longer came to believe that the market forces alone could regulate such elements of modern life as the hours required for individuals to work in a capitalist environment. State intervention was required.

Weinstein cautions that merely because the word 'socialist' is often used in a derogatory fashion in political rhetoric does not mean that socialism has no presence in the establishment of a state that assumes responsibility for its citizen's well being. The Socialist Party may no longer be an active political presence in American politics, but its ideology, invisibly, has become woven into the social and legal fabric of administrative law.

To make his argument Weinstein outlines the history of the party in relation to the development of industrial America, the Progressive Movement, and the increased ethnic complexity of the urban locals of America. He states that rather than being a 'fringe' party the party made a significant impact in its united stand against World War I, although it was unsuccessful in preventing the war. Attempts to limit freedom of speech merely drew attention to the cause and socialist ideology. Early on, the party had genuine electoral strength as an alternative to the two-party system. Women, African-Americans, and a variety of ethnic groups were devoted readers of its press, and Jewish and African-American voters often gave the party great electoral strength in the industrialized, urban North.

In contrast, James Q. Wilson argues that the shift to the current conception of the state did not come in a seismic, revolutionary shift from autonomy to a more socialist point-of-view, but through various interactions of disparate political organizations. Weinstein's argument is founded upon the idea that America was subject to a paradigmatic and revolutionary shift in philosophy, as a result of a failed social organization and political party. Wilson argues, however, that one cannot separate the success of the organization of the social organization, nor the way it was founded, from its subsequent impact. Wilson's Political Organizations does not focus on one organization, rather he stresses that political parties, as well as business groups, labor unions, and civil rights associations cannot automatically be assumed to represent the interests of all of its presumed founders, rather the way they are created and maintained significantly affects the opinions they represent and the tactics they use. Rather than having a significant impact upon American political philosophy and law, at best such organizations can only influence government regulation through the use incremental policy-making directed toward servicing the public interest. However, the impact of many of these organizations has been genuine, although perhaps overstated by historians like Weinstein.

In contrast to both Weinstein and Wilson, however, the international legal scholar Ronen Shamir has argued that organized lawyers, such as the leadership of American Bar Association, struggled against regulatory developments in the 1920s-1930s. Shamir agrees with Wilson's pluralist, or factionalist approach in that he emphasizes the role of organized group entities, beyond the explicitly political influence of organizations such as the Socialist Part. However, he notes that, rather than pressing for an administrative shift in regulatory policy, organizations such as the ABA, wished for an "ad judicatory" or judicial procedure of reforming the American political climate and way of life during the beginning of the century. Furthermore, Shamir's philosophy suggests that neither political activism upon the legislature, through the use of political interest groups (as Wilson might suggest) nor by dominating legislatures through electoral politics and issue-specific agendas (as Weinstein might say) was the best way to shift the American political ethos. Rather, the best methodology is to approach the laws themselves, and attempt to change them through the judicial system, as these attempts tend to be more concrete and permanent in nature.