CONSTITUTIONAL MATURITY, OR READING WEBER IN THE AGE OF TRUMP.

• Author: Chafetz, Josh
• Position: Symposium: The Constitution in the Age of Trump

We might be in trouble. That, at least, would seem to be the premise of this symposium: after all, symposia on the current state of constitutional law tend to proliferate when there is anxiety about the current state of constitutional law. And this symposium is hardly alone in expressing such anxiety--conferences, books, and articles fretting about the American constitutional order in "the age of Trump" abound. (1)

One common technique for getting a handle on anxiety is to try to take a step back, to think in broader terms about the situation. And turning or returning to some of the classic works of the past, works inspired by a similar set of questions but written in a different time or place, can often assist us in thinking through what might be new about the present--and, at least as importantly, what might be familiar about it.

In this Essay, I propose to look back about a century, and across the Atlantic, to the great German social theorist Max Weber. In Weber's work, we find important insights into both the institutional structures of the modern state and the character traits that constitute a successful politician. For Weber, maturity, understood in terms of balance, or the productive negotiation of the tensions between conflicting principles, characterizes both the successful state and the successful politician. In this moment in American history in which concerns abound about both the resilience of our institutional arrangements and the character of our president, it is especially illuminating, I think, to turn to Weber's reflections on both types of maturity.

1. A MATURE POLITY?

   "America cannot continue to be ruled by amateurs."

   - Max Weber, Politics as a Vocation (1919) (2)

   When he delivered his Politics as a Vocation lecture a century ago, Weber insisted that the United States had just begun to enter its political maturity. The domination of American politics by the Jacksonian "spoils system"--the organization of party machinery around the dispensing of patronage--was characteristic of its political youth. (3) Indeed, the spoils system was only possible because of American immaturity: "For it is self-evident that the existence of three to four hundred thousand party supporters who had nothing to show by way of their qualifications for office but the fact that they had served their party well--such a state of affairs could not survive without major abuses: corruption and the squandering of resources on a vast scale such as could only be borne by a nation with as yet unlimited economic prospects." (4)

   But then we grew up and got rationalized. "Civil Service Reform" (5)--a phrase he left in English--"is now creating lifelong pensionable posts in constantly growing numbers. In consequence, posts are now being filled by university-educated officials who are just as incorruptible and competent as in Germany." (6)

   The Prussian's comparison to Germany was a double-edged sword. He was in fact deeply concerned about the modern German state. In Weber's view, Otto von Bismarck's creation of a powerful centralized bureaucracy and the first modern welfare state had come at the expense of political leadership. Once Bismarck himself had left the stage, there was no one with the combination of talent and training to take his place: "Since the resignation of Prince Bismarck Germany has been governed by 'bureaucrats,' a result of his elimination of all political talent. Germany continued to maintain a military and civilian bureaucracy superior to all others in the world in terms of integrity, education, conscientiousness and intelligence.... But what about the direction of German... policy during recent decades?" (7) The ship of state, though powerfully rowed, was rudderless in Weber's estimation, because Germans had gotten out of the habit of thinking about politics, instead abdicating the governance of public life to the bureaucracy alone. And without a vibrant public politics up and running, there was no way to develop a new generation of political talent, such that the rule of the bureaucracy risked becoming a self-perpetuating cycle. (8)

   For Weber, politics and bureaucracy were distinct realms of collective activity, (9) both of which were necessary in a modern state. It is well known that he characterized politics as a "vocation" (Beruf); it is less remembered that he characterized bureaucracy with exactly the same term. (10) As he understood it, modern bureaucracy had six essential characteristics: (1) rule-delineated jurisdictions; (2) a hierarchy of offices; (3) written record-keeping and file-keeping; (4) specialization and a system of training specific to the areas of specialization; (5) full-time commitment by its practitioners; and (6) a system of stable, general, learnable rules. (11) These characteristics of modern bureaucracy implied some concomitant characteristics of modern bureaucrats. For Weber, the bureaucrat was appointed, not elected; served for life (by which he meant had legal protections against discretionary firing or transfer); received a regular salary; and occupied a rung of a defined career ladder. (12) (It should be noted that, for Weber, these characteristics imply that modern legal systems--even common law ones--are bureaucracies. (13))

   Above all, the ethic of bureaucracy is an ethic of rationalization, in at least two senses of the word. First, bureaucracy is fundamentally concerned with reason-giving--indeed, bureaucratic action is illegitimate without some statement of reasons. (14) (In modern American administrative law, this has taken the form of a component of the Administrative Procedures Act's prohibition on agency action that is arbitrary or capricious. (15)) Second, and at least as importantly, the rationalism characteristic of bureaucracy prescribes the form those reasons must take. In particular, the logic of bureaucracy requires that decisions be based upon "purely objective considerations," by which Weber means considerations specified in advance and applied without regard for the specific persons who will be affected by them. (16) Indeed, "[w]hen fully developed, bureaucracy ... stands... under the principle of sine ira ac studio. Bureaucracy develops the more perfectly, the more it is 'dehumanized,' the more completely it succeeds from eliminating from official business love, hatred, and all purely personal, irrational, and emotional elements which escape calculation." (17)

   Bureaucracy's inexorable drive toward rationalization makes the governance of a modern state possible. (18) Its characteristic rationality enables the efficient large-scale mobilization of social resources. As increased demands are put upon the state--from police protection to social welfare policies to public administration of new technologies of communication and transportation (19)--the bureaucratic state's "technical superiority over any other form of organization" (20) becomes more and more manifest. Governance of an increasingly complex and specialized world increasingly requires the work of subject-matter experts, and those experts are most naturally housed within bureaucratic structures. (21) The rationality of bureaucracy also serves a legitimating function: as Paul du Gay put it, without a rationalized bureaucracy, "many of the qualitative features of government that are regularly taken for granted--for instance, reliability and procedural fairness in the treatment of cases--would not exist." (22) As a result of both its technical superiority and its legitimating potential, for Weber "[t]he future belongs to bureaucratization." (23)

   But bureaucracy's rationalization of governance, like the rationalization of the rest of modern life, has its dark side. Most famously, Weber described the rationalization of the modern, capitalistic economic order as "an iron cage" in which the pursuit of material goods has become an end in itself, stripped of any connection to "the highest spiritual and cultural values." (24) Because a wholly rationalistic enterprise can never speak in terms of ultimate values, the result of the total triumph of rationalization is disenchantment, a transformation of "human interaction and behavior into a dreary quasi-mechanization, bereft of sensuality, spirit, and culture," in the words of Stewart Clegg and Michael Lounsbury. (25) Unsurprisingly, the "dehumanized" (26) governance of bureaucracy has a similar tendency in our public life:

   [T]he bureaucratic organization, with its specialization of trained skills, its division of jurisdiction, its rules and hierarchical relations of authority.... is busy fabricating the shell of bondage which men will perhaps be forced to inhabit some day, as powerless as the fellahs of ancient Egypt. This might happen if a technically superior administration were to be the ultimate and sole value in the ordering of their affairs, and that means: a rational bureaucratic administration with the corresponding welfare benefits, for this bureaucracy can accomplish much better than any other structure of domination. (27) The bureaucratization of modern governance is thus both at least partially inevitable and normatively ambivalent. It has the potential--far more than any other technique of governance--to organize action in pursuit of collective ends. But it also disenchants, making those ends increasingly difficult to identify and justify, until, at its logical endpoint, we are left in an iron cage, or a shell of bondage, in which we have nothing but aimless technique. (28)

   Importantly, however, there is nothing inevitable about our entrapment in that cage or shell. This is because there is an opposing force that counteracts, and might perhaps balance, bureaucratic rationalization: politics. The politician "is supposed to be something different" from the bureaucrat. (29) The essential difference, for Weber, lies in the sort of responsibility inherent in each office. (30) A bureaucrat "who receives a directive which he considers...