Reflections on Democratic Experimentalism in the Progressive Tradition

Abstract

By outlining the history of administrative law from the Progressive era to the present, this essay suggests a genealogical connection between Dewey's pragmatism and democratic experimentalism. Democratic experimentalism is rooted in the Progressive paradigm of an administrative state guided by expert judgment but responds to the ossification of the U.S. administrative state. Connecting democratic experimentalism to Progressivism provides the background for some speculations about the politics that might be needed for democratic experimentalism to have successes equivalent to those of Progressive administrative law.From the perspective of a scholar of U.S. public law and its history, democratic experimentalism can be seen as the next step in the development of the Progressive vision of administrative law.1 And, because John Dewey was a Progressive in his politics, it is not surprising that scholars can connect democratic experimentalism to Dewey's pragmatism. Dewey's pragmatism provided an informal philosophical backdrop to the Progressives' policy proposals. These Reflections suggest a genealogical connection between Dewey's pragmatism and democratic experimentalism, not a conceptual one.2 They begin with an outline of administrative law's history from the Progressive era to the present, with the aim of showing how democratic experimentalism is rooted in the Progressive paradigm of administrative law and how it responds to some of the difficulties faced by contemporary administrative law.3 That outline provides the background for some speculations about the politics that might be needed for democratic experimentalism to have successes equivalent to those of Progressive administrative law.Progressives began with the observation that the institutions of governance in the late nineteenth and early twentieth century could not be accounted for within the traditional separation-of-powers conceptualization. Without any deep theorizing supporting the administrative agencies had developed incrementally to the point where, Progressives argued, they had to be understood as a new fourth branch of government. Progressives offered a political theory for the modem administrative state.Progressives defended the development of that state by pointing to the inadequacy of traditional governance mechanisms available to deal with rapid social change, notably immigration, and technological change, notably the development of mass production industry linked by then-modem transportation networks, in the late nineteenth century.4 Legislatures could not deal with these problems because change was too swift for the cumbersome legislative process to respond: By the time legislators knew enough to deal with a perceived problem, the problem needing solution had changed. And legislatures were too political, dominated by the very industries that they ought to regulate or by political machines that gained support from recent immigrants by providing their supporters but not their opponents with the kinds of social provision that ought to be offered generally and systematically. Courts could not deal with the problems either, because they saw only those parts of the problems that happened to be presented to them in litigation, and that fit within the traditional categories of the common law, which could adapt but only incrementally, to social and economic change.The Progressive solution was the administrative agency, staffed by experts in specific fields and subject to only loose political control through the appointment of agency heads who themselves were expected to have some degree of expertise. The experts could deploy scientific knowledge in the service of regulation; their expertise would allow them to move nimbly in response to technological change; their loose connection to politics would allow them to implement a coherent vision of the public interest without regard to the kinds of immediate political concerns that affected legislators. …