Editor’s Note: The following article was named by RegBlog as one of their Fall 2014 Highlights.
Fear of the abuse of official power is and always has been a central thread in American constitutional discourse and political psychology. From the Antifederalists, to the Liberty League of the 1930s, to the American Civil Liberties Union, to the Tea Party Constitutionalism championed by Richard Epstein and Randy Barnett, libertarian constitutional movements and their theorists have urged that constitutional arrangements should build in strict precautions against the risk of abuse of power. That impulse cuts across the left-right divide and has no systematic or general political valence; the politics of precautionary constitutionalism varies over time and across issues. Today, libertarians of the left tend to urge recautions against executive powers of surveillance and detention, whereas libertarians of the right urge precautions against administrative regulation and putative takings of property rights; but the rhetoric and structure of argumentation is nterestingly similar across these cases.
Yet the circumstances of the administrative state make a strictly precautionary approach to official abuse of power impossible. Indeed, the architects of the administrative state, I believe, understood exactly this. They recognized that abuse of power is not something to be minimized, but rather optimized. An administrative state will tolerate a certain level of abuse of power, as part of a package solution – as the inevitable byproduct of attaining other ends that are desirable overall. In that very rough sense, they attempted to push towards optimal abuse of power.