Beyond Camelot: Rethinking Politics and Law for the Modern State.

AuthorQuint, Peter E.
PositionBook review

BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE. By Edward L. Rubin. (1) Princeton, Princeton University Press, 2005. Pp. 471. $45.00.

In Beyond Camelot, Edward Rubin advances what seems like a pretty radical program. He argues that the advent of the administrative state has fundamentally changed the nature of government. As a result, traditional categories of law and political theory have lost their relevance and descriptive power; indeed these categories now reflect a sort of "social nostalgia" which impairs understanding (pp. 29-36). Among these obsolete categories are such hallowed concepts as branches of government (and the separation of powers), power and discretion, democracy, legitimacy, law, legal rights, human rights, and property.

Should these obsolete terms, therefore, be completely abandoned? Rubin's answer is no. Rather these terms should be "bracketed"--that is, put to one side for the purposes of a thought experiment--and certain alternative concepts should be explored (pp. 8, 336). Rubin believes that these alternative concepts are superior in three essential ways. First, the alternative concepts are superior in expressing our "emotional commitments" to the view that "the government's purpose is to benefit its citizens" by effectively furthering their "security, prosperity and liberty" (pp. 14-15). Second, the alternative concepts promote greater clarity in thinking, because they better resist reification--that is, they more adequately reveal or acknowledge that all such terms of political philosophy are actually "metaphors, rather than observable features of the world" (pp. 15-18). And, finally, the alternative concepts encourage a deeper examination of political institutions because they facilitate "microanalysis" of how decisions actually are made in government--that is, they "provide the framework" for our attempts "to trace the actual pathways of individual decision making and related action through an institutional structure" (3) (p. 18).

The old concepts cannot be completely abandoned because that would be confusing and (in the end) impossible. "Instead", according to Rubin, "the idea is to convey a sense of caution to scholars, judges, and policy analysts whose task it is to think systematically about modern government" (pp. 335-36). But is it really worth a volume of over three hundred pages--with a dazzling apparatus of extraordinary learning--merely to "convey a sense of caution to scholars, judges, and policy analysts"?

Perhaps it is. In any case, let us undertake our own brief "microanalysis" of Rubin's impressive work of political and legal theory.

  1. "Branches" and "Network"

    The first of Rubin's proposals is that the metaphor of three "branches" of government (and of the separation of powers) should be bracketed, and that government should be viewed instead as a "network" (pp. 40-73, 184-85). Certainly the "network" metaphor well captures the complexity and decentralization of aspects of American government, and Rubin elaborates this point in a particularly persuasive discussion (pp. 53-66).

    But does this terminology violate the spirit of Article II of the Constitution which, some argue, requires a rigidly centralized executive branch? Article II does vest the executive power in a single "President of the United States," responsible for the faithful execution of the laws. (4) But the argument for a centralized hierarchy becomes weaker when we consider the details. First, Congress may allow the "heads of departments" or the "courts of law" to appoint most executive officials. (5) Moreover, the President (unlike Congress) receives no express power to remove any office-holder. Only a massive effort of strenuous interpretation allowed the Court to infer a presidential removal power in the Myers case, over eminent dissents. Yet something like the network idea reasserted itself in Humphrey's Executor, the decision that validated the independent administrative agencies by finding that Congress could generally insulate commissioners from removal in the absence of good cause. (6)

    Indeed, that was what the fighting was all about in the special prosecutor case, Morrison v. Olson (7): is our administration part of a hierarchical executive "branch" or is it more like a "network"? By upholding the independence of the prosecutor, the Court seemed to endorse something like the "network" idea. The cri de coeur of Justice Scalia's dissent could be viewed as a nostalgic backward look at what he feared might be the disappearing idea of the "unitary" executive department as a separate "branch". (But, of course, this idea has not disappeared, as the continuing validity of cases like INS v. Chadha (8) and Bowsher v. Synar (9) makes clear.)

    The idea of a "network" may be useful for characterizing foreign administrative systems as well. In Germany, for example, most federal law is administered by the individual states (Lander), rather than by a federal bureaucracy. (10) Under this form of decentralized administrative system, federal law may be enforced differently, depending upon the prevailing politics of the enforcing state. (11) But Justice Scalia rejected this sort of "network" in the Printz case when (writing for the Court) he noted that allowing a federal statute to employ the civil service of the states to enforce federal law would be to remove these officials from unified central--that is, presidential--control...

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