Judicial Technocracy in America: Part Four

America, Law, and the New Science of Politics

This article is the fourth installment in a five-part series devoted to American constitutional interpretation.

The problem of individualism, as Tocqueville articulates it, is begotten of a wide scale intellectual dysfunction that has deep political consequences. It’s clear that, for Tocqueville, while individualism is a product peculiar to modern democracy the peculiarity of modern democracy itself is not separable from its Enlightenment inheritance—our cognitive malfunction partially springs from the unprecedented marriage of democracy with the undergirding principles of modern scientific reason. Therefore, Tocqueville’s description of Americans as Cartesians is pregnant with significance—our intellectual life, and our view of authority and law, is haunted by the specter of the modern scientific project. These premises have become so deeply ingrained in our political consciousness that we can be described as Cartesians though we have never encountered Descartes whose writing is far too speculative for our tastes. Neither the constituent philosophical inclinations of individualism nor its political ramifications are the result of scholarly labor—Americans “have not needed to draw their philosophic method from books” since they managed to “have found it within themselves” (DA 2.1.1) This means that there is a powerful sense in which Americans have deeply internalized the prism of scientific interpretation—to fully capture the problem of democracy and law in America one has to understand the manner in which those proclivities that stubbornly resist the rule of law, and that often transform the rule of law into the rule of techno-expertise, is tied to the modern transformation of politics into science.

The basic characteristics of individualism as a cognitive malady—the deformation of real experience into theoretical abstraction, the simplistic transformation of reason into the “isms” of reductive ideology and methodological calculation, and the hubristic pretense of an epistemological autonomy—are all also hallmarks of the attempt to, as Bacon put it, promote the “general spread of the light of science” from natural objects in motion to human agents in action. Likewise, Descartes understood the scientifically demonstrable “rules for the direction of the mind” to finally constitute a “mathesis universalis”, or truly architectonic discipline to render fully transparent all the other disciplines. Thus, Hobbes could argue that like geometry, “civil philosophy is demonstrable” (Elements of Law, Ep. Ded.) Max Weber concisely captured the rational triumphalism at the heart of this science of politics as the “knowledge or belief that if one but wishes one could learn anything at any time. Hence it means that principally there are no mysterious incalculable forces that come into play, but rather that one can, in principle, master all things by calculation”. The absorption of politics by science entails the narrowing of the human person, in all his political and moral capacity, to his scientifically measureable parts-the singular lionization of reason entails a more general diminution of man as a whole person.

The primary motivation of the modern techno-political movement, however, is not to provide a comprehensive view of man as much as it is to offer an instrument for his pacification- the effectual truth of technocratic governance is a denial of the place that genuine disagreement and contentious dispute about the good have in political life. For Hobbes, the primary cause of dangerous political rivalry, the kind that forestalls the possibility of reconciling democratic liberty with domestic tranquility, is the elusiveness of any unanimity over the question of what is good. The central problem is that moral terms are hopelessly vague, plagued as they are by “inconstant signification” (Leviathan I.4), making the pretense of personal moral certainty or the view that the “knowledge of good and evil belongs to each single man” the greatest obstacle to political harmony (De Cive II.xii). The technocratic response to factionalism generated by competing claims to the good is to replace classical political science, oriented around an understanding of the natural ends of man, with a modern administrative science of means in which the irresolvable problem of the good is exchanged for the posture of moral neutrality. Descartes expresses this sentiment succinctly when he argues that “very clear and very certain” ideas would effectively “remove all subject of dispute and in that fashion dispose the minds of men to docility and concord”. The mutual contempt that results from the competing visions of the good justifies the technocratic suppression of the political centrality of the good.

Therefore, the conceit of this new science of politics, or what Hobbes called a “natural system of justice”, is that the theoretical problem of the good and the concomitant question regarding competing claims to rule has been decisively answered. Instead of Plato’s philosopher king we get his emasculated modern descendant: the rational bureaucrat. The ascendancy of techno-politics also assumes that human behavior has been rendered docile—the victory of administrative science over practical statesmanship is based on an exaggerated version of Montesquieu’s prediction that a turn to commercial pursuits would usher in a general “softening of mores.” The turn to benign interests is a turn away from the messier and more obviously political questions that involve the identification of a controversial good and the contest among citizens vying for honor. The incoherence within the technocratic view of political life is that it simultaneously denies a politics based on the love of honor and showers honor upon those who claim a greater share of reason. In contradistinction to honor politics, the rule of bureaucratic science presupposes men that are easily manageable, subject to domestication, and satisfied by the appropriate calculus of interests. If politics is nothing but the deliberative regulation of benign interest, then the simple rule of administrative competence might actually suffice.

In an obvious sense, our judicial branch was designed to have a kind of technocratic element to it, although limited in scope. Its radical encapsulation from the pressure of public opinion is meant to safeguard the moral and political impartiality of its work, free from the obligations to satisfy this or that constituency. Also, more than any other department of power, the judicial branch has a narrowly defined task that requires highly specialized, hyper-technical skill that is not usually shared by much of the public and therefore has a tendency to render its work largely inaccessible. The idiosyncratic American response to the tension between democracy and law, now the tension between the intensely erotic and morally charged political contest of legislation and the impartial and unerotic interpretation of the law, is to sequester the creation of the law from its subsequent constitutional review. It was the legislature, connected proximately to the people by “the strong chords of sympathy” that was to be a conduit of the passionate and interested needs of their constituencies while the judiciary did not resist them, but rather was constructed to be blind to them (Federalist #28). The unique advantage of the judiciary, its independence, or its a-political character, has the double effect of protecting its work from the erotic intrusions of the public while also limiting the damage it can visit upon their liberty. The strength of the branch is also its characteristic weakness—it is inoculated from the chaotic politics of democratic opinion but also deterred from ambitiously entering the political arena itself. It does not answer to the people but neither does it have the power of the sword or the purse to subjugate them.

However, the localized infusion of the American regime with a technocrat department can become problematic when that department understands its own technical superiority as a justification for a more aggressive superintendence of the law, and when it sees its own limited specialization as fundamental or architectonic, encompassing much more than specifically legal controversies of a narrow variety. In other words, one problem with a technocratic branch is that it can become intoxicated with a techno-political ideology of its own, and adopt the generalization of its otherwise limited constitutional purview to matters beyond the scope of the law. Like the Cartesian science it increasingly finds kinship with, it sees its own task as approaching the status of a governmental “mathesis universalis”, transforming the adjudication of legal controversy into the stewardship of the fundamental political health of the regime at large. If we are a nation of laws and one branch of power is charged with being the sole gatekeeper of the foundational integrity of the law, then it’s a short inferential leap to the view that its purpose is to more broadly safeguard the foundational integrity of the republic as well. One might suggest that this is an unfortunate consequence, however inadvertent, of the unprecedented view that the success of democracy was consistent with, even required, “the total exclusion of the people in their collective capacity from any share” in public administration (Federalist 63).

It is not sufficient to argue that the judicial branch is inadequately democratic—Madison never intended the American regime to be a “pure democracy” and the judicial branch was intentionally designed as a counterpoint to democratic excess. Still, it is also insufficient to argue that the judicial branch was intended to be a repository of wisdom that checks the vicissitudes of popular consent—while it was surely meant as ballast to majority opinion it was never constructed to fully undermine democratic forms. The judiciary’s independence from the people was always understood to be in the service of the impartiality of law and equality of each citizen under it, as well as the promotion of the reverence for the law, all for the cause of democratic health. The aristocratic element of the judiciary, as both Tocqueville and Montesquieu argued, was always circumscribed by its narrowly technical task—Tocqueville goes to great pains to emphasize the limitation of judicial oversight to the specific details of specific cases versus general ideas detached from an identifiable constitutional controversy. However, in light of the powerful current that is American individualism, and the spread of the technocratic view of politics connected to it, it was always likely that an impatience with the authority of our fundamental laws combined with the spread of a technocratic view of politics would transform the judiciary into something less powerful than the Nocturnal Council described in Plato’s Laws but surely more powerful than its original design.

So one might say that our judiciary today suffers from some of the classic symptoms of the techno-political view, maybe especially regarding the moral neutrality of its judgments. While Hobbes certainly claimed that his science of politics elided the politically tumultuous controversy over the good, his very conception of science seems rife with deep moral attachments of its own. Hobbes’ view, and the now conventionally accepted view, that science itself  is a morally neutral enterprise since it merely creates the mechanisms of power that can be used for moral and immoral purposes alike overlooks the practical and moral core of the Enlightenment. Historically, modern science was born of a project with the particular moral end of “the relief of man’s estate,” as Francis Bacon put it. The need for relief is a consequence of the hostility of nature to human existence and the moral imperative for human beings to overcome nature’s tyranny through productive labor. The fundamental objective of modern science is the rational control of nature which necessitates the extension of man’s power for the expansion of his autonomous freedom. To the extent that traditional conceptions of morality require a recognition of some salutary dependence upon nature, or of insuperable limitations on human self-transformation, science must be understood as an outright rejection of them. The practical core of modern science as a project, or its orientation as a political movement versus a merely contemplative enterprise, presupposes a morally charged understanding of man and his proper purposes, despite often self-congratulatory protestations to the contrary. Just to cite one judicial example of technocratic neutrality masking a clandestine ideology, Justice Stevens’ interpretation of individual liberty as autonomy and of the court’s responsibility to progressively expand the catalogue of rights such autonomy entails is, in fact, weighing in on the “meaning of existence” though he had recourse to language meant to convey his disciplined reticence on this score. There is, therefore, a genealogical line that runs from the pretense of separating technical procedure and morality, or facts and values, and what the eminent progressive Constitutional scholar, Ronald Dworkin, has called a more explicit “fusion of constitutional law and moral theory”.

On the one hand, a morally neutered vision of human reason is basically appropriate for such a narrowly technical task like constitutional review. Constitutional interpretation can be an immensely complex enterprise and one might even argue that the inaccessibility of such hyper-technical debates has the salutary effect of insulating it from the passionate and highly partial politicization of popular opinion. It is in this spirit that Oliver Wendell Holmes once opined that “we need specialists even more than civilized men” who by dint of their esoteric credentials are a “little apt to think they cannot breathe the American atmosphere”. However, it was always understood that the kind of aristocracy within a democracy the judicial branch constituted would be largely benign since limited to a strictly delineated compartment of functions and responsibilities; in fact, in many ways it functioned as an unprecedented kind of aristocracy that could claim superiority precisely because of its greater share of humility rather than magnanimity providing, as it was intended to do, an example of cautious intellectual restraint to balance the potential for philosophical misadventures, and general epistemological recklessness, of the populous at large. The problem today with judicial activism provides a kind of cautionary tale, or instructive reminder, that Tocqueville’s understanding of democratic individualism has a tendency to submit itself to a “mild administrative despotism” and that built right into the American regime is a department well suited for the task.

Today, it often seems as if our judiciary takes its technocratic bearings from Hobbes insofar as its central work is not merely to tame the erotic passions of our citizens by example but the explicit program of political pacification—therefore, its primary function is not merely to safeguard the impartiality of the law but to suppress the destructive consequences of too much clamorous debate. In his argument against judicial review, Jefferson was remarkably well attuned to the possibility that the judiciary would no longer simply dampen or regulate the kind of vitriolic debate that conceivably undermines the impartiality of the law but actively commandeer dispute, relocating it from the public theater to the judges’ chambers, eliminating some of the best opportunities for cultivating republican virtue. In this sense, the judiciary seems impressed by the technocratic presumption that politics is nothing other than hyper-rational game theory and therefore entails the stark de-politicization of human desire—the crucial importance of the ancient distinction between thumos, or our spirited claim for the honor that is due us, and more pedestrian desire (epithumia) is discarded for the indiscriminately homogeneous “passions of the soul,” as Descartes articulates it. From the perspective of classical philosophy, the satisfaction of human desire was always understood to be an inherently political enterprise, not only because of our natural sociability and mutual dependence, but also because human desire itself stubbornly, even angrily, resists being decisively tamed by any soothing, bureaucratic lullaby. If the whole human person is always and necessarily a mix of logos and eros, and sometimes a volatile one, then any attempt to assimilate desire into logos will necessarily fail. The hallmark of modern science when applied to political life is the tyranny of technological reason over those aspects of human experience that defy it; in this way, Descartes flipped Cicero’s famous dictum that it is “often the nature of politics to defeat reason” on its head. The dream of modern science is the absolute victory of human reason over an incomprehensible and indifferent cosmos, of which the chaos of human political life is an exemplary microcosm. One might say that, by extension, the techno-political dream of policy making from the bench is to effectively replace the erotic tumultuousness that always accompanies democratic legislation with a more subdued version of a mild judicial technocracy. It is important to note that Madison could take seriously the “danger of disturbing the public tranquility, by interesting too strongly the public passions” and that the “passions ought to be controlled and regulated by the government” (Federalist #49). Nevertheless, Madison could also write without contradiction in the same essay that the “people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches hold their power, is derived…”

It is impossible to deny that not only the judicial branch but the American regime more generally, though not exhaustively, is a technocratic republic in spirit. Hamilton argues, somewhat bombastically, that the impulse actuating the construction of our republic is the desire to decisively replace “accident and force” with “reflection and choice” as the ground of proper self-governance. While the phrase “accident and force” is immediately evocative of tyranny it also seems aimed at the contingent character of rule by ancestral tradition—one could say that tradition is a kind of tyranny of accidental circumstance. Even the frequent discussion in the Federalist papers of the United States as an experiment in self-governance, and the concomitant emphasis on the ameliorative powers of institutionalism borrow from the conceptual architecture of science just as the central notion of the separation of powers seems vaguely modeled on the notion of energy and force in physics. One needn’t scrutinize the writings of the framers too closely to find the general sentiment echoed by Washington that the “foundation of our empire was not laid in the gloomy age of ignorance and superstition” but rather based on the “researches of the human mind” (June, 1783). Similarly, Hamilton confessed that he was reluctant to mine the classical texts of antiquity for guidance since their speculations could not draw from the “great improvement” exacted in modernity by the new “science of politics”.

Nevertheless, there were also concessions made by the same luminaries that there was something historically particular and idiosyncratic about the political circumstances afforded them-with respect to the regime proposed in the Federalist papers, Madison wrote that “no other form would be reconcileable with the genius of the American people” intimating that other forms might be appropriate for other maybe less perspicuous nations. Also, the formation of the regime was always infused with a humble sense of man’s insuperable moral and intellectual failings—instead of the celebration of human reason characteristic of Enlightenment science Madison endorsed less hubristic expectations “As long as the reason of man continues fallible”. Moreover, he cautioned against any exuberant optimism that the right bureaucratic contrivances could defeat the “depravity in mankind” that perennially demanded a “certain degree of circumspection and distrust”. While Madison certainly thought that his fellow Americans had “accomplished a revolution which has no parallels in the annals of human society” he also makes frequent and powerful appeals to what experience and history can teach us about the immutable principles of human nature. In short, Madison countered the scientific conceit that politics itself could be overcome through asymptotic progress with the realization that even the best form of government presumed an inexpugnable frailty at the heart of humanity: “If men were angels no government would be necessary.”

This extraordinary combination of technocratic governance and non-technocratic republicanism is best exemplified by the Constitution itself which attempts reconcile the height of invention with a maximum of reverence. Hobbes thought this could be done on the basis of technocratic principles alone arguing that one could manufacture, on the basis of the new science of politics, a constitution that was “everlasting” (Leviathan, II.29). However, while the American constitution is surely an artifact fashioned by men and therefore in some sense, as John Quincy Adams once argued, “ pliable to the fluctuating varieties of public opinion” it must also have a “stability and duration” based on the “principles proclaimed in the Declaration of Independence”. In this sense, the Constitution is an unprecedented combination of the modern constructivist insight that “we only know what we make” and the ancient view that “we only revere that which is old”. In functioning as a bridge between the ancients and the moderns, our Constitution embraces the recent discovery of individual freedom as politically central, best if hyperbolically expressed in its technological dimension, with an acknowledgement of the classical recognition of the political limitations imposed upon us by our own mortal selves. To state this differently, the American Constitution is the most ambitious attempt in human history to render compatible man as homo politicus, or political man, with man as homo faber, or inventing man. It is a testament to this ambitious mix of the old and the new that Madison coined the somewhat paradoxical phrase “inventions of prudence” (Federalist #51). The problem with any salutary tension intended to be maintained in perpetuity, though, is that its volatility tends to gradually allow the absorption of one side by the other. Our peculiar form of democracy was always meant to be only partly and innocuously technocratic but the rise of judicial technocracy, and the steady demise of genuine national debate about the highest of political concerns, both provide an unsettling barometer of the equilibrium our framers worked so hard to maintain.

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