Constitution as Executive Order

• DOI: 10.1177/0095399705276113
• Date: 01 September 2005
• Author: Thomas J. Catlaw
• Published date: 01 September 2005
• Subject Matter: Articles

10.1177/0095399705276113ADMINISTRATION & SOCIETY / September 2005Catlaw / CONSTITUTION AS EXECUTIVE ORDER

CONSTITUTION AS EXECUTIVE ORDER

The Administrative State and the Political

Ontology of “We the People”

THOMAS J. CATLAW

Arizona State University

This article offers a new strategyfor examiningthe legitimacy question in public administra-

tion and representativegovernment. A genealogy of political discourses is proposed to sug-

gest that political forms have historically reliedon a constitutive exclusion. The U.S. Consti-

tution and administrativestate are conceived of as events in this genealogy but are unique in

that both deny the ontologically constitutive effect of the exclusion. Administration and

constitutionalism aredescribed as liberal political technologies, deployed to re-present and

fabricate “the People,” that is, to bring into realitythe organic totality that is ontologically

presupposed.

Keywords: legitimacy; history, public administration; representation; sovereignty;

biopolitics

It seems, therefore, that a problem always finds the solution it merits, ac-

cording to the conditions which determine it as a problem.

Gilles Deleuze, 1990, p. 54

In the century-long discussion concerning the infamous dichotomy of

politics and administration, it is typically forgotten that public administration

was proposed as a solutionto a problem of politics. As such, ad ministration

445

AUTHOR’SNOTE: The author wishes to thank O. C. McSwite, Michael Harmon, and Lori

Brainard for extensive discussions about and criticisms of earlier iterations of this work.

Deep appreciationis extended also to two anonymous reviewers for insightful comments that

substantively improved the article. An early draft of this article was presentedat the 2002

meeting of the Public Administration Theory Network in Cleveland, Ohio. Correspondence

concerning this article should be addressed to Thomas J.Catlaw, School of Public Affairs,

Arizona State University,P.O. Box 870603, Tempe,AZ 85287; phone: (480) 965-7543; fax:

(480) 965-9248; e-mail: thomas.catlaw@asu.edu.

ADMINISTRATION & SOCIETY, Vol. 37 No. 4, September 2005 445-482

DOI: 10.1177/0095399705276113

© 2005 Sage Publications

is itself a form of politics, and this article is an inquiry into that form. The

recognition that public administration was a solution to a specific political

dilemma brings to the fore the contours of the problem to which it offered

a solution. To use Robert Wiebe’s (1967) well-known and precise phrase,

if the era of the field’sfounding indeed was a “search for order,” if Ameri-

can society had become “distended” in this period, what had come

undone? What prior order had been sundered? In what framework was a

problem visible? These questions suggest something rather different

from, for instance, that suggested by Paul Appleby (1997), who was

among the first to insist on the political dimension of administrative

behavior. Indeed, to say merely that administration is political does not

tell us anything particularly interesting about either politics or

administration.

Public administration has not concerned itself with the form of politics

with which it is, to varying degrees, either saturated or related. The field’s

silence with regard to the political reflects a timidity reinforced by its fas-

cination with the legitimacy problem because this issue effaces questions

surrounding politics. Administration lets politics remain self-evident,

leaving only administration to be problematic, not only for itself but for

politics as well. This article directly confronts the issue of the political and

attempts to bring the presuppositions of the basic efficacy of the represen-

tative medium, the stability of the represented referent, and the assump-

tions made about that referent into question. That is, it aims to question the

status of the People and the entire political ontology presupposed therein.

More precisely, this means determining the functionality of the limits of

the ontology itself. In this light, the very plausibility of the administrative

state and its political form is brought into question. Its objects of concern

are revealed to be effects produced by a particular historical

reconfiguration and crisis of a political constitution.

The argument is made in two parts. The first proposes a genealogy of

the constitution of the political from the Greek polis to the liberal concep-

tion of a popular sovereign, the People.1The purpose is not to provide an

account of the historical lineage of public administration but rather to

sketch the movementof a certain understanding of the political to generate

a battery of concepts with which we might reexamine the appearance of

public administration as a recognized practice. I first introduce the notion

of a constitutive exclusion as it appears in the Greek formulation of poli-

tics and ground it in the distinction between the two words the Greeks had

for life. Zoë expressed the fact of living shared by all animate objects

(humans, animals, gods) on the earth or in the heavens; bios indicated a

446 ADMINISTRATION & SOCIETY / September 2005

qualified, particular way or mode of living characteristic of an individual

or group (Agamben, 1998). For the Greeks, political life was made

possible by the ontologically constitutive exclusion of zoë.

Next, making extensive use of the work of philosopher Giorgio

Agamben, I briefly rehearse the relationship between the Greek concept

of the political and the Roman idea of homo sacer, the life that can be

killed without homicide or sacrifice, and the medieval understanding of

the king’s two bodies. Both of these understandings of the political also

relied on a constitutiveexclusion. The primary purpose here is to provide a

conceptual linkage of the exclusion of zoë to the emergence of sovereign

authority and a chronological linkage from the polis to the liberal era. Fol-

lowing this, I take up Hobbes’sformulation of the sovereign as the giver of

and exception to the law and the sovereign act as the creation of the com-

monwealth. For Hobbes, the sovereign is the exceptional or excluded ele-

ment that defines the possibility for political life. I describe Hobbes’s jus-

tification of politicalauthority in terms of the protection of zoë, bare life.

The final section considers the regulatory function of law and law’s

relation to the political constitution of a popular sovereign. The argument

draws from Locke to identify the particular novelty of the idea of popular

sovereign, which is the positing of an order that is, in effect, prepolitical

(i.e., not in need of the creative sovereign act) and without exclusion. As

sovereign, it is whole. The significant moment in the liberal tradition is

how this formulation conflates zoë with a single qualified form of life,

bios. That is, the whole of biological life becomes conflated with a single,

homogeneous way of life, a People. I attempt to show, first, why govern-

ment must necessarily then be assumed to possess a delimited regulatory

function and how this political constitution underwrites the force of law

and both depends upon and makes possible techniques of representation. I

argue that liberalism and law depend upon a constitutive exclusion, yet

their presupposition of totality conceals this. A dialectic of inclusion and

exclusion and a violent attitude toward difference are thereby established.

The second part of the article describes the enterprise of public admin-

istration as the most recent event in this genealogy. Deploying Michel

Foucault’s analysis of disciplinarity, I locate the enterprise of public

administration as one among many disciplinary technologies whose

emergence at the turn of the last century was precipitated by a breakdown

of the regulatory efficacyof law. In conjunction with these other technolo-

gies, public administration aims to fabricate the People, to bring into real-

ity the fictitious totality that is presupposed. In addition to making it visi-

ble as a political technology, public administration is found to be

Catlaw / CONSTITUTION AS EXECUTIVE ORDER 447