Joseph W Postell

Current attempts to improve civic education through higher education should be supplemented by a focus on political parties, which have traditionally served as the “great schools” of civic education. America’s nineteenth-century parties drew voters out of their private concerns, engaged them in social life, and taught them to tolerate and bargain with each other. Legal changes over the past century have deprived them of the tools needed to fulfill this role. Policymakers should reconsider campaign finance laws that cripple parties, especially state and local organizations. Moreover, parties themselves should dedicate more time and resources to building a permanent presence in local communities and engaging citizens on the ground.

Scholars and commentators across the ideological spectrum are preparing themselves for a possible revival of the nondelegation doctrine. Nevertheless, there are clear signals that a change is on the horizon. In one of the most recent major cases involving the conventional nondelegation doctrine, Gundy v. United States, three Justices signed an opinion by Justice Gorsuch advocating the abandonment of the Court's "intelligible principle" test adopted in 1928 in J. W. Hampton, Jr. v. United States. Instead, the Justices urged the adoption of a more robust limitation on congressional delegations of authority to administrative agencies. Indeed, in many of the states that, in practice, have relatively robust nondelegation doctrines, the test employed resembles the Supreme Court's current "intelligible principle" test.

When the modern administrative state emerged in America during the Progressive Era, at the beginning of the twentieth century, it was typically grounded on the premise that administrative officials are experts who should be insulated from politics. This theory, combined with emerging ideas of scientific management, contributed to the intellectual justification for the administrative state. However, progressives never fully reconciled the tension between this theory and the democratic nature of American politics. Because of this ambiguity and tension in the progressives' theory of expertise, the politics/administration dichotomy was abandoned shortly after the administrative state was constructed. The place of expertise in the administrative state is still ambiguous, even in the twenty-first century.

Previous scholarship on the political thought of the American founding has concluded that the founders amalgamated liberalism and republicanism but has not yet identified the precise contours of this combination. The first section of this article lays out the debate between liberalism and republicanism. The second section reveals that the founders, far from promoting laissez-faire, supported and enacted a wide array of regulations at the local, state, and national levels. The third and fourth sections discuss the justification for regulation and demonstrate that the founders’ approach to liberalism harmonized the exercise of individual rights and the common good, foundations that have been considered exclusively liberal and republican, respectively. The article concludes by suggesting that regulation provokes questions for the liberal/republican categories, since neither approach adequately explains the founders’ rationale in favor of both liberalism and regulation.

In the last few decades a narrative of American political thought has emerged which attributes the transformation of the American regime over the last century to the Progressive movement. This narrative tells the story of the Founders versus the Progressives, and explains modern liberalism as a departure from the ideas of the Founders. This article argues that, on the whole, the Founders versus Progressives account is descriptively accurate. Nevertheless, there are important difficulties that the account has yet to explain adequately. The article proceeds to identify and explain one of these difficulties, namely the difference between old Progressivism and postmodern Progressivism. For the Founders versus Progressives account to offer a fully compelling explanation of developments in American political thought, it will have to explain how contemporary liberalism and postmodern Progressivism are related to the philosophy of the earlier Progressives.