Walter Bagehot (1826‒77) is hardly a household name in America today. But for several decades during the nineteenth century he was a very important public intellectual in his native England. Bagehot’s work on The English Constitution in effect gave marching orders to England’s ruling class during the era of gradual democratization that followed the passage of reform statutes widening the suffrage in that country. No flatterer of the masses, Bagehot argued that the better sort in England must prevent chaos by using the sovereign power of Parliament (really, the prime minister and his cabinet) to institute expert administration and lead the less educated.
Bagehot was among those English thinkers who insisted on finding a “sovereign power” in the state, convinced that there must be somewhere in any functioning government a power that is answerable to no one and so can truly “make” law. This view produced in him a particular aversion toward the American Constitution, which he characterized as establishing a “composite” form of government inferior to Britain’s “unitary” form. Separation of powers and checks and balances, on Bagehot’s view, dispersed responsibility and defocused the minds of the people and their governors. Because congressional debates could not produce a new government, those debates were known to be unimportant, and so served only as distractions from business as usual, which tended to involve corrupt bargaining. Moreover, the president, not being dependent on Congress, was a mere creature, in Bagehot’s view, of popular opinion without the basis or need to answer to any particular constituency. The result was a government he saw as incapable of governing. Only the natural genius of the American people for politics—something no other country likely would replicate—allowed the United States to maintain some semblance of ordered liberty.
It should not be surprising, given his views on governance, that one of Bagehot’s goals in life was to convince people in the emerging republican governments of his day that they should reject the complex model presented by the United States in favor of the more logical, steady, and effective state constructed according to Britain’s parliamentary sovereignty. He succeeded in significant measure in this task—European governments tended, in his day, to follow a pattern of centralized legislative power.
Perhaps one of Bagehot’s more surprising converts was the future American president Woodrow Wilson. It was to be a fateful conversion. Wilson was the most educated of America’s presidents, at least in the formal sense; he was a professor of political science and college president before entering politics. And Wilson’s studies of the American political order were deeply influenced by his attachment to the British system. Here Bagehot was his lodestar. Congressional Government (1885) was a sustained argument for remodeling the American political order along British lines by making Congress a kind of sovereign Parliament. This was in response to his view that the American Constitution set up too cumbersome a system and that the various checks, balances, and overlapping jurisdictions it established led to inefficiency and corruption. In his last major academic book, Constitutional Government (1908) Wilson switched the object of his sovereign expectations to the president. But he continued to advocate a more centralized, in today’s terms a more “responsible,” form of government for the United States.
Wilson saw the core problem in American government as the lack of a programmatic party system. Principles were subordinate in American politics to practical bargaining over material benefits. To Wilson, this in itself was corrupt. Decades before writing on Constitutional Government, Wilson had, in an article on “The Study of Administration,” decried the corruptions of America’s cities and begun advocating for a more “modern” understanding of public administration that would cede authority to experts capable of managing a more complex public sector. Over time, he came to believe that Congress was incapable of managing this administrative apparatus and came to look to the president as chief executive to provide direction and leadership to bring Congress in line and build public support for a program of reform.
The need to gain popular support for reforms in a nation as democratic as the United States highlights a basic tension within Wilson’s thought and within Progressivism over the course of the first half of the twentieth century. That tension began from the Progressive commitment, on the surface at least, to direct popular control and participation in political processes through devices like the popular referendum, recall, and initiative. This commitment, necessary for political if not philosophical reasons, conflicted with Wilson’s and other Progressives’ rather low estimate of the character of the general population. Commitment to reform and to “expert” administration required, in brief, elite leadership.
And how would this tension be lessened? Through political organization and education. At the administrative level, Wilson declared that it would be necessary to “organize democracy by sending up to the competitive examination for the civil service men definitely prepared for standing liberal tests as to technical knowledge.” And how would such a program gain the support of the people? Through the assurance that the administrators would be merely “neutral” public servants acting on “hearty allegiance to the policy of the government they will serve.” The people, led by highly organized, ideological parties, would choose the general set of programs best suited to the national interest. Those they elected would then give the bureaucracy its marching orders. Politics and administration being kept separate, there would be no problem with the power of administrators; the only issue would be to see that these experts were kept accountable. Thus, the science of administration, according to Wilson, had as its central task discovery of “the simplest arrangement by which responsibility can be unmistakably fixed upon individuals.” To do so would immeasurably help the public perform its oversight function: “Public attention must be easily directed, in each of good or bad administration, to just the man deserving of praise or blame.”
For Wilson, following Bagehot, the composite form of government in the United States made it all but impossible to fix responsibility where it belonged in an efficient manner, and so to combat corruption, assure the primacy of the political will, and maintain efficient, neutral administration. Early in his career, Wilson had favored a kind of “cabinet government.” This hybrid form clearly owed much to Bagehot’s vision of government in Britain. According to Bagehot, “A cabinet is a combining committee,—a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state. In its origin it belongs to the one, in its functions it belongs to the other.” Eventually, however, Wilson determined that no such bridge could be used to establish the kind of unitary, responsible government he sought; only a powerful president serving as the leader of a programmatic party could do that.
The president would be “the unifying force in our complex system, the leader both of his party and of the nation.” The president can unify the people because he alone represents “no constituency, but of the whole people,” he is the “only national voice in affairs.” And other factors, according to Wilson, made the president the naturally dominant force in American politics: The country’s “instinct is for unified action, and it craves a single leader” so that once he has gained “the admiration and confidence of the country … no other single force can withstand him, no combination of forces will easily overpower him.” Thus, “if he rightly interpret the national thought and boldly insist upon it, he is irresistible.”
There was, of course, in Wilson’s vision, the problem of the Constitution. That document clearly set up a government in which Congress was to be dominant; its “auxiliary precautions” for the most part were directed at cabining what the framers of that document saw as the natural and rightful superiority of the legislative branch in a republican form of government. How, then, would the president come to dominate? Here again one might see in Wilson’s thought the influence of his intellectual guru. For Bagehot insisted that, in Britain at least, the government contained two distinct parts, the efficient and the dignified. The dignified government was the formal government, that which gave the people the ceremonies it wanted, that assured them of stability and benevolence from those who ruled. The efficient government was the real government, that is, the government that actually exercised power. This efficient government, principally the prime minister and cabinet, was responsible for the laws and for their administration.
One might question the level of honesty Bagehot holds to in praising a government in which most people look to a powerless spectacle rather than the center of effective power as their government. Nevertheless, there is no reason to question the constitutionality of such a system in Britain. In theory at least, Bagehot was right. Parliament, and especially the House of Commons, is sovereign. This was true even during Bagehot’s time in the sense that the Commons’ will (in effect, the will of the Prime Minister), if continually expressed over the objections of king and lords, would become law. The only issues were ones of appearances and extraconstitutional checks such as the possibility of violence.
In the United States on the other hand, the Constitution is quite specific about which branch of government is to exercise what powers. Wilson had noted well before he penned Congressional Government that many of the limits imposed by the Constitution (principally those connected with federalism) had fallen into disuse. But to put into disuse the primacy of the legislature in setting policy for the nation would entail yet more action overtly violating the Constitution, allowing one political officer (the president) to take over the functions and powers of others.
It was the drive to gather in the hands of the president the power to “do good” in the sense of providing a national agenda and a single point of responsible government that motivated much of Wilson’s own political career. It would become the centerpiece of Progressive reform for decades to come. The result—an administrative state resting on broad delegation of powers to the executive branch—would take decades to institutionalize. But the result would be a president against whom it can truly be said that no one, and nothing—including duly enacted laws—is any longer able to stand.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.