Weinstein, Wilson, and Shamir on U.S. Administrative Law

Introduction: The Politics of Administrative Regulation

What is the political philosophy behind America's current system of federal and state administrative regulation? In an ideal historical environment, this question might be answered simply by consulting the recorded words of the Founding Fathers. The historian of American law is instead faced with a considerable challenge, however, because the relationship between the individual, the state, and the national government has changed dramatically since the nation's founding. The conceptual basis for the historical and philosophical construction of administrative laws has varied considerably as well, depending on whether the political paradigm in question is corporate, 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 at the turn of the twentieth century in the way individual rights were conceptualized — and that this shift continued to shape law and politics throughout the century. During this period, America transformed from a nation without a federal income tax and a Bill of Rights applicable only to federal legislation, into a country with a complex civil rights litigation system and a bureaucratic tax and federal civil service structure. Legislation was passed to make American industry more humane, and to advance the integration of women and blue-collar workers into national life. The twentieth century saw women gain the right to vote, the protection of workers' rights within the capitalist system, and the legal and legislative guarantee of African American civil rights. The political, economic, and legal reasons behind this shift, however, remain controversial.

Weinstein and Corporate Liberalism

James Weinstein has been one of the foremost historical and legal advocates of what he terms "corporate liberalism" — a framework for tracing the reasons for the shift from the American ideal of independence, autonomy, and capitalist freedom toward the acknowledgment that the state must protect individual rights in a more activist fashion. Weinstein believes that the urban socialist movement, originally organized to create structures of collective solidarity and to force the state to recognize the need to protect workers' rights to unionize and women's right to vote, is key to understanding the development of an American state that actively protects individual rights rather than passively allowing capitalism and individual autonomy to go unchecked (Weinstein, 1967).

In his seminal text, The Decline of American Socialism, Weinstein contended that, rather than being a primarily individualist or fragmented structure, the urban America of the Progressive era was far more cooperative than one might suppose — socially, legally, and politically. In this controversial text, which functions on its surface as a history of the now-defunct American Socialist Party, Weinstein argued that organizations such as the supposedly marginal Socialist Party were actually quite foundational in shaping what we think of as American law and society today. Because of the political and ideological influence of the Socialist Party, America came to reject the idea that market forces alone could regulate such elements of modern life as working hours in a capitalist environment. State intervention was deemed necessary.

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

To support his argument, Weinstein traces the history of the party in relation to the development of industrial America, the Progressive Movement, and the growing ethnic complexity of urban America. He contends that, far from being a fringe party, the Socialist Party made a significant impact through its united stand against World War I, even though it was ultimately unsuccessful in preventing the war. Government attempts to limit freedom of speech in response to socialist dissent only drew wider attention to the cause and its ideology. Early on, the party demonstrated 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 frequently gave the party substantial electoral support in the industrialized, urban North.

Works Cited

Weinstein, James. The Decline of American Socialism, 1967.

Wilson, James Q. Political Organizations. New York: Basic Books, 1973.