One of the ironies of contemporary life is that people tend to hate bureaucracies, yet demand more of them. That is, the people persistently complain about government agencies’ control over their lives and just as persistently demand ever more government programs they know will be administered by government agencies that will extend greater control over their lives. This situation is not new, of course; in an important sense it is intrinsic to social organization as such. Those from whom we want something—anything, really—thereby gain power over us by the fact that they can give it to us, or not. Any child knows this. Indeed, the child may know this better than the typical adult, who has become so accustomed to various norms and social habits surrounding relations among equals that the cost of a “favor” no longer seems real.
The same might be said of contemporary populations in terms of new government programs. Having already institutionalized an administrative state, the marginal cost of a new government benefit seems negligible. Or at least it did until Obamacare added a new layer of bureaucracy to an already rule- and official-laden process for the distribution of healthcare. What the Obamacare fiasco has brought home to many people—one hopes in time to spur corrective action—is that there is something fundamentally different about the distribution of benefits by a centralized bureaucratic organization from the administration of relations among people who are free to leave that relationship.
One way to interpret this difference is simply to differentiate state from individual. That is, one may see voluntary transactions among individual persons as the proper model of social organization, such that all organizations not based in voluntary contract are presumptively illegitimate in that they involve the exertion of power by an organization on an unwilling subject. One formulation of liberal theory is rooted in this distinction, yet it blurs over time as social relations become more complex and the demands of the people more extensive. Much liberal theory begins with the assumption of individual autonomy, but proceeds to the recognition that certain goods require cooperation. To begin with, people require peace and order to go about their own business, such that John Locke could write of the need for an executive power consented to by the populace that would, on the basis of consent, exercise for each person his right to self-defense. Modern, liberal social contract theory grows from this understanding of social purpose and the legitimating power of consent to justify even the contemporary administrative state, so long as the forms of democratic elections are maintained. In effect, according to this theory, while I may have voted against Obama, the fact that more people voted for him than for any other presidential candidate and the fact that he managed to get Obamacare past Congress leaves me with no grounds for complaint about the program’s legitimacy. I consented to the results of our governmental processes, even if I do not like any particular result.
Those of us who point out the lack of constitutional basis for much of the contemporary administrative state tend to be dismissed as cranks or mere self-interested parties suffering from “sour grapes” because “the people” do not share our values. And there is something to this criticism, as far as it goes. Constitutional restrictions on the power of government, if rooted in consent, must eventually fade in significance if the people continue participating in a system that ignores those constitutional limitations. Even if (as has been the case) the limitations have been undermined by nondemocratic institutions such as the courts and the bureaucracy itself, the ongoing nature of elections tends, as both a practical and an ideological matter, to undermine claims of illegitimacy in a democratic age.
What is more, supporters of the current bureaucratic system can point to many relationships in the “private” sphere that are not voluntary in any meaningful sense. We began, after all, with reference to the family, in which children must abide by the rules imposed by parental units if they wish to receive benefits. More and more these relationships themselves are monitored and regulated by the state precisely because, biological connection having been rejected as grounds for authority, many now perceive a legitimacy problem in the nonvoluntary, nonconsensual nature of parental power over children.
Whatever the political arguments on either side, certain relationships rely precisely on their nonvoluntary character for their effectiveness. One reason so many marriages fall apart is the constant possibility of immediate exit. Attempts to work out various priorities and disagreements often fall apart due to the assumption by one or both parties that if they are not satisfied with the “bargain” they have the right to exit, consequences to the other party, children, and society be damned. The same may be said for other communities as well. Neighborhoods and towns once had high exit costs—one could not move easily or cheaply—which encouraged cooperation. Today, given the minute level of regulation from higher, more centralized levels of government, one may simply “exit” by withdrawing from participation in the homeowners’ association, PTA, or other local group, with little or no cost. Moreover, if one becomes sufficiently upset at a community policy, there always is the possibility of suing to vindicate some putative right and/or literally moving away. The result is entrenched fecklessness and no small amount of corruption in local associations today, kept in check by “oversight” from higher levels of government.
One might see in these considerations a basis for arguing that centralized bureaucracy is inevitable and necessary for a modern, complex society. One often hears that it is inevitable that families fail, as do local communities; they too often are ruled through violence, corruption, and discrimination, and so must give way to more centralized and enlightened organizations that can more fairly distribute goods and impose penalties. Indeed, a great deal of the literature on “public administration” over the course of the twentieth century was rooted in the firm belief that local associations are by nature oppressive. What, then, is the alternative? For those who share this belief, there is only one alternative: centralized, hierarchical public administration.
But, contrary to what one sees and hears in most public debate today, not everyone shares the assumption that centralized, bureaucratic control is all that stands between us and oppressive chaos. In his classic work, The Intellectual Crisis in American Public Administration, Vincent Ostrom points out that there are in fact two very different views of what “public administration” must look like. Ostrom sees one mode of public administration as monarchical and the other as democratic. Ironically, we currently are ruled by the monarchical system, in the name of democracy.
All societies have methods of distributing public goods. That is, even the most primitive and the most libertarian societies must, to exist over time, come to an understanding of how roads, sewer lines, armed forces, and other necessities of social life will get built and how their use will be controlled. Free markets themselves are a form of “administration” in the sense that the legal system must enforce contracts for them to function. Some of these methods may be customary, some rooted in voluntary transactions, and some openly coercive or at any rate hierarchical in nature. Most roads throughout history have been built by slaves or putatively free peasants conscripted for the task. In modern times, of course, most people take pride in their liberties and look on the state as their servant. This made some sense when the state did not play much of a role in daily life—as, for example, when there were few public goods provided and the military was based in local militia. An administration that is small and does not do much can be kept in check by an active, watchful community. But society, our demands on public administration, and the shape of that administration itself all have changed.
What is new in the modern era is the belief that a hierarchical, centralized, “monarchical” form of bureaucracy is consistent with a free (Ostrom uses the term “democratic”) society. Woodrow Wilson in particular, Ostrom shows, was responsible for bringing to America a German/French model of public administration rooted in top-down organization and centralization of authority. According to Wilson, this model of social organization is the only one appropriate to any form of government. Whether democratic or monarchical, he argued, all modern societies require governments that administer increasingly complex programs to “do the people’s business” by which was meant carrying out the political will of the majority. The difference between democratic and authoritarian regimes, on this view, lies solely in the source and means of determining the political will. That is, in democratic nations politics is democratic, aimed at determining the will of the people, whereas in authoritarian nations the will of some person or group determines public policy. In either case, Wilson argued, administration ought to be the same; it should involve efficient, top-down decision making aimed at translating the political will into public action.
The problem with this view, of course, is that it is wrong. Centralized, hierarchical administration is not consistent with a free, democratic society. In particular, monarchical administration is rooted in hostility toward local autonomy of any kind. Efficiency (and prevention of various forms of discrimination) requires that all decision making occur at the highest, most “enlightened” level possible. And this means taking away from individuals, families, voluntary associations, and local governments the freedom and authority necessary to maintain public participation and the ability to respond to local circumstances. As Ostrom points out, Alexis de Tocqueville already in the early nineteenth century saw the danger to ordered liberty in America arising from a willingness to centralize power in the name of efficiency and material advancement. The key to liberty in democratic times, Tocqueville pointed out, was administrative decentralization. Strong communities in the United States retained powers of self-government and this allowed for public participation and control over local administration.
Public goods in the early republic generally were produced and allocated at the local level—more often than not through voluntary associations and at the instigation of private parties. The danger to this system of ordered, local liberty was a vicious cycle in which centralized political powers would assert ever greater control over the provision of public goods as Americans retreated from public into private life. The result would be a new form of “soft despotism” enervating to the soul and inimical to personal freedom and virtue. Ostrom points out the extent to which the Wilson administration accomplished this enervation of local life and, especially in the post-war period, centralized power in the hands of the American president. This trend was deliberate and rooted in a rejection of the logic of the American Constitution.
Ostrom finds in Wilson’s monarchical bureaucratic theory (itself derived in large measure from the thinking of Englishman Walter Bagehot) a set of Hobbesian assumptions regarding the constant threat of disorder and violence in society that must be counteracted and contained by a single sovereign invested with the power to impose its will. Whatever the form of government, on this view, there must always be some source of absolute, sovereign authority above the law. In a democratic state that authority is the legislature. This means, then, that the legislative will must be put into action by the bureaucracy, as efficiently and single-mindedly as possible; over time, Wilson himself came to see the president as the natural leader even in a democracy because only he could stand effectively at the top of the hierarchy of public administration.
The American Constitution rests on a very different set of assumptions regarding the nature of power and the requirements of a free society. Ostrom finds in The Federalist a series of principles of self-government, rejected by Wilson as mere literary theory, but essential to free government. Of particular importance, according to Ostrom, is the Constitution’s system of federalism and separation of powers. This structure produced a set of overlapping jurisdictions with overlapping constituencies and terms of office; and this multiplicity of authorities was necessary so that all citizens, who by nature belong to a variety of communities that administer public goods (think local police and interstate highways) could have their voices heard as administrators checked and balanced one another to prevent arbitrary power. Moreover, The Federalist’s system relied on what Ostrom calls “positive constitutional law,” by which he means the effective, law-like nature of constitutional provisions limiting the power and scope of action of administrators and politicians. Fragmentation of authority is essential and must be maintained through “legally enforceable constitutional law.”
Of course, such a system entails the kind of “inefficient” discussion and low-level conflict anathema to Wilson and his followers. According to the prevailing theory of public administration, state and local governments are by nature inefficient, as indeed are all non-national forms in that they bring about a fragmentation of authority “presumed to provide conflict, and create disorder and deadlock.” Only a single authority and chain of command can provide the efficiency necessary to swiftly and fully turn political will into reality. But precisely this kind of system “predicated upon the capacity of mankind for self-government” was at the heart of the American experiment. In this light, Ostrom argues, “the Wilsonian theory of administration was no less than a counter-revolutionary doctrine.” Rooted in Jacobin theories of a general will and the proper powers of the state, Wilsonian public administration is nonetheless backward looking in the radical sense that it would undo centuries of constitutional development and return us to an era in which the will of the state would override the rights of various persons and communities to govern themselves. Under such conditions, the vaunted claims of “the will of the people” merely serve to further empower a ruling class intent on imposing its will on people who, separated from their natural communities, are incapable of meaningful resistance.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.
 Vincent Ostrom, The Intellectual Crisis in American Public Administration (Montgomery: University of Alabama Press, 1973).
 Ostrom, 88-89.
 Ibid., 102‒05.
 Ibid., 34.
 Ibid., 133.