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Alexis de Tocqueville once warned that "insufferable despotism" would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that Tocqueville's nightmare came true during the New Deal when radicals created vast bureaucracies that continue to trample on individual freedom. In Tocqueville's Nightmare, Daniel R. Ernst destroys this ahistorical and simplistic narrative. He shows that reformers wanted to purge government of corruption rather than create a socialist utopia. Indeed, they built the principles of individual rights, limited government, and due process into the administrative state.
Far from following "un-American" models, they rejected the leading European scheme for constraining government, the Rechtsstaat (a state of rules). They instead equated the rule of law with the rule of courts and counted on judges to review the bases for administrators' decisions. But when leading judges realized that strict judicial review shifted to them decisions best left to experts, even they decided that a "day in court" was unnecessary if individuals had already had a "day in commission" where the fundamentals of due process prevailed. This procedural notion of the rule of law solved the judges' puzzle of reconciling bureaucracy and freedom.
The American administrative state is a restrained and elegant solution to a thorny problem and has kept Tocqueville's nightmare at bay.
- Sales Rank: #1452108 in Books
- Published on: 2016-05-01
- Released on: 2016-05-19
- Original language: English
- Number of items: 1
- Dimensions: 6.10" h x .90" w x 9.00" l, .0 pounds
- Binding: Paperback
- 240 pages
Review
"Illuminating"
--The Nation
"Daniel Ernst provides a wonderfully rich and subtly revisionist account of one of the crucial eras in the development of American administrative law. The meat he puts on the bones of apparently arid doctrinal disputes both reveals why administrative law has been and remains a sharply
contested battleground in American political development and gives us a brilliant account of what 'American exceptionalism' really entails."
--Jerry L. Mashaw, Sterling Professor of Law, Yale University
"In this masterful study, Daniel Ernst shows how judges and lawyers in government and private practice constructed the modern American administrative state in the first decades of the twentieth century, reshaping the protean ideal of the rule of law so that law and government institutions
supported each other in overcoming constitutional objections to the nightmare of a monstrous bureaucratic state. His account seamlessly integrates ideas, cases, and politics into a compelling explanation for the constitutional world the New Deal created."
--Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
"The conventional narrative of the origins of administrative agencies and administrative law in early twentieth-century America has emphasized similarities between American and Western European agencies of the state and has associated the emergence of agencies with the triumph of collectivist
ideologies of governance in the United States. Tocqueville's Nightmare demonstrates that the process was far more complicated. Building on recent revisionist work by early twentieth-century legal and constitutional historians, Daniel Ernst has put forth an account of the growth of the American
administrative state that reveals the limitations of conventional wisdom and is likely to become authoritative."
--G. Edward White, David and Mary Harrison Distinguished Professor of Law and University Professor, University of Virginia School of Law
"[A] compelling mix of history and legal thought"
--Boston Review
"No future analysis of the development of American administrative government will credibly proceed without having taken stock of Ernst's well-crafted study."
--Perspectives on Politics
About the Author
Daniel R. Ernst has been a member of the faculty of the Georgetown University Law Center since 1988. His first book, Lawyers against Labor, won the Littleton-Griswold Award of the American Historical Association. He has been a John Simon Guggenheim Memorial Foundation Fellow, a Fulbright Research Scholar at the National Library of New Zealand, and a co-editor of "Studies in Legal History" a book series sponsored by the American Society for Legal History. He writes on the political history of American legal institutions.
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11 of 12 people found the following review helpful.
Please read the Companion volume by Prof. Phillip Hamburger ...
By Dr Max H
Please read the Companion volume by Prof. Phillip Hamburger, Is Administrative Law Unlawful?
A Knowledgeable citizenry is the first defense against tyranny.
1 of 4 people found the following review helpful.
it is a very good example of why no lawyer has ever won an ...
By STEPHEN GRANT
Actually, it is a very good example of why no lawyer has ever won an argument with the Devil. hubris
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