Public Administration Is Constitutional And Legitimate .

emnent by limitingthe discretionarypower availableto government officials and, thus, limit the costswhich governmentcan impose on them as individuals.4. The centrallogic of a constitutionin general and theAmerican Constitution in particular is thus aboutrestrainingpower.5. The legitimateconstitutionalrole of public administratorsis to be found in helping limit the discretionof politicalleadersin imposingcosts on citizens.While they were decidedly concerned about limiting thepossible uses of governmental power, the founders werenonetheless fully cognizantof the fact that a responsibilityofgovernmentis to use power, and they made no attempttohide this fromthe people. It would be a governmentof laws,but a governmentnonetheless,not just laws. In Federalist15,Publiusexplainsthata law is not a law withouta sanctionandconcludes that people have a choice between coercion by the"courtsand the ministersof justice"and coercion by the military. Therefore,Publius implies that since coercion is necessary in government,the people should be glad to choose civilexecution"(Mansfield,1987).ratherthan "militaryThe basic problem with this thesis is that it provides anThe legitimacy of executive and administrative powerinadequateconception of constitutionalgovernment.In addition, the implicationsfor the democraticlegitimacyof public understoodin terms of the founding does not rest as Spiceragencies and public administratorsbased on such a concep- and Terrysuggest on the ideali7edvision or presumedmoraltion could be most unfortunate.superiorityof the founders,but on the relevancyof theirexperience as applied to real governing. The constitutionaldesignwhich has perseveredfor our entirehistorywas based on theirblend of experienceand theorywhich fit the circumstancesofThe firstissue to be confrontedis whetherthe centrallogic governmentand governing,and which has proved adaptableof a constitutionis about restrainingpower. The purpose of a to the change and growth of the nation. The constitutionalconstitutionis to do that, but not only that.As Schochetput it, separationand specificationof powers may have permitted"Itseems self-evidentlytrue thata society'sconstitution(taking cross-purposedaction and bureaucraticobstructiveness,butthe term in its traditionalsense) should define its political Americans have been largely spared swift and unforseeninstitutions and processes and establish standardsfor their changes in law and policy causing instability, and haveevaluation.Modem constitutionalism,with the emerginglib- enjoyed multipleroutes of access ratherthan being confinederalism whose ideology it shares, predicates naturallyfree, to a consolidatedhierarchy(Caldwell,1976, p. 486).apolitical,and rights-bearingindividualswho need and thereThe express need for a strong executive originatedin ourfore establish governments that they can, may, and should constitutionalhistoricalexperience. It should be rememberedcontrol (emphasisin original)"(1979, p. 4). In short,constitu- that what led to thecalling of the conventionin Philadelphiations establishthe institutionsof governmentas well as estab- were realproblems of governing under the Articles oflish their limits. Further,that such institutionshave enforceConfederation,problemsso severe that the attendees quicklyment powers vis-a-vis citizens is well understood. That abandonedthe taskofamendingthe Articlesin favorof adoptconstitutionsare about establishingarrangementsthat will bea whole new Constitution.As Corwinhas discussed, theingenforced with respect to citizens is even explicitlyrecognizedpowers theoreticallyavailableto Congressunder the Articlesby contractarian economists. As James Buchanan states, were practicallyunenforceable,because they depended on the"Alongwith the limits on behavior and the rights of owner- actions of disparatestate legislatures,which at the time wereship, the inclusive constitutional contract must also make busy not only denying obedience to Congressbut also tramexplicit the terms and conditions of enforcement.This set of pling on the prerogativesof each other and theirown citizens.termswill specify in detail the operationand limitsof the pro- An excess oflegislativepower and an absence of executivetective state that is establishedas the enforcingagent"(1975,power was the chief defect (Corwin,1973, p.29). The experip. 72).ence under the Articlesof Confederationof the nationalgovIn short, constitutionsare about establishinggovernments ernmentlacking a sufficientexecutive power to enforce thebefore placing limitationson them. It is not romanticizingthe will of Congresswas so pervasivethatthere can be littledoubtfoundersto recognize that they understoodand intendedthat thatone of the majorobjectivesof those attendingthe convena government should be created to control those governed tion was to repairthis deficiency.This objectivewas bore notand the citizens should be able to control the government. only out of experiencewith the nationalgovernmentundertheThey also understoodthe difficultyof reconcilingthose objec- Articles,but in state experiencesas well. As Thatchand Woodtives and the role of the Constitutionin establishinginstitu- have shown, the experiencesof citizensin the statescreatedattions to regulate the tension between them. As Madison's the time of the war proved to them that the state executiveswere too weak (Thatch,1969;Wood, 1969).famousexplanationin Federalist51 states:But what is governmentitself but the greatestof allreflectionson humannature?If men were angels,nogovernmentwould be necessary.If angels were togovernmen, neitherexternalnor internalcontrolsonThe supportersof the Constitutiondid not hide from thewouldbe necessary.In framinga governgovernmenttask of explaining the necessity of a strongerexecutive to amentwhichis to be administeredby men over men,people who sufferedunder a monarchyand were suspiciousthe great difficultylies in this:you must firstenable theof the misuse of executive and administrativepower. Theygovernmentto controlthe governed;and in the nextknew theiropponents would chargethat the executive would1961,p. 322).placeobligeit to controlitself(Rossiter,recreatethe evils of monarchyas a principle line of attack.LegitimatingPowerDesigning the Executive258PublicReview* May/JuneAdministation1993,Vol.53,No.3

They assertedthe necessity of a strong executive for republican government.Publius explained in Federalist72 that boththe capabilityto respond in emergenciesand the durationinadministrationthat makes possible "extensive and arduousenterprises"demanded an "energetic"executive. Mansfieldpoints out the criticalmeaningfor a republicangovernment:The Federalist,then, constitutionalizesthe republican tradition.By findinga place for the necessitiesof governmentwithin the constitutionof govemment it correctsthe foolish optimismof republicanism which thinks, in essence, that men canlive by the laws they choose and never have tobow to the necessities they do not choose orlearn from their experience of such necessities(Mansfield,1987, pp. 173-174).In Federalist70, Hamiltonwrotethe well-knownexplanation:Energyin the Executiveis a leading characterinthe definitionof good goverment. It is essentialto the protectionof the communityagainstforeignattacks,it is not less essentialto the steadyadministrationof the laws; to the protectionof propertyagainstthose irregularand high-handedcombinations which sometimes interrupt the ordinarycourse of justice;to the securityof libertyagainstthe enterprisesand assaults of ambition, of faction, and of anarchy(Rossiter,1961,p. 423).It serves to remind us of the logic of the executive thatHamiltonpresented,not to supportthe acceptanceof the primacy of the executive in protectingrepublicangovernmentthat Hamiltonfavored,but for what it says about the constitutional legitimacyof the executive and administrativefunction.Again in Federalist70 Hamiltonwrote: "A feeble Executiveimplies a feeble execution of the goverment. A feeble execution is but anotherphrase for a bad execution;and a government ill executed, whateverit may be in theory, must be, inpractice,a bad goverment" (Rossiter,1961,p. 423).The considerationand deliberationgiven to the executiveat the constitutionalconventionwas most deliberateand proceeded over severalweeks with many differentdecisions andmodificationsas the participantscame to develop theirpractical idea of a constitutionalexecutive. The notion of the separationof powers was, of course, key, in thatwhat would therebe to check and balancean over-ambitiousCongressif not theexecutive. However, the deliberationsover what powers togive the executive furtherdeveloped the presidencyand thenotion of what was requiredfor adequateexecutionof policy.The executive presented in the Virginiaplan with which thedelegates began was very weak, with Congresseven retainingthe power to appoint the Secretaryof the Treasury.However,as the convention proceeded through a series of proposalsand modifications,the action of the delegates was to substantially strengthenthe executive. The delegates added the roleof the president as the Commanderin Chief, and gave thepresidentthe power to appointjusticesof the SupremeCourt,ambassadors,ministers,as well as other officers alreadyprovided for-with the advise and consent of the Senate as wellas the power to make treaties.What was perhaps surprisingabout the debate was the consensus that developed aroundstrengtheningthe powers of the executive and how tionTIe eecutivepoerwasnotintendeden swouldI andtheseparationplaintwas voiced that the additionsmade the presidentmuchtoo strong(Collierand Collier,1986, p. 231). Both the experience of the delegatesand the theoryof the separationof powers that they worked out at the convention convinced themthat they needed to explicitlyprovide for a significantexecutive power, and they did justthat.The executive power was not intended even by its mostardentsupportersto be an unbridledone, however, the popular election of the chief executive and the separationof powers would see to that.The popularelection of the presidentasa controlon overreachingor unwise executive power was notand still should not be minimized.AlexanderHamiltonwasperhapsthe most explicit about the conception of the executive (Caldwell,1944).In Federalist72, Hamiltonspoke directlyabout administrationor "executivedetails"and the position ofadministrators(assistantsor deputies) as being subjectto thesuperintendenceof the president.In supportingthe positionthatthe presidentought to be eligible for reelection,Hamiltonargued that this would both encourage the presidentto "acthis part well" and the communityto observe his "measures"and forman "estimateof their merits"(Rossiter,1961, p. 436).He concluded, "Thislast is necessary to enable the peoplewhen they see reason to approve of his conduct, to continuehim in his stationin order to prolong the utilityof his talentsand virtues,and to secure to the goverment the advantageofpermanency in a wise system of administration"(Rossiter,1961, p. 436). In short, it is the electoratewho is the ultimatearbiterof good administrationand its judgmentand action area centralpartof the controlon executivepower.Further,Hamilton argued in Federalist27 that the morepeople experienced the actual operation of government onthe common occurrencesof their lives, "themore it will conciliatethe respectand attachmentof the community"(Rossiter,1961, p. 176). He arguedwith respect to the people "confidence in and obedience to a governmentwill commonly beproportionedto the goodness or badnessof its administration"(Rossiter,1961, p. 174). In short,the legitimacyof the federalgoverment ultimatelywould be proven by the experiencecitizens had with it as it affected them. To be sure not evenHamiltonconceived this to be merelythe resultof the impactof administrationin terms of the "executive details" but intermsof administrationin the largersense of comprehendingall the operationsof the body politic. Nonetheless,he clearlyexpected that administrationof the "executivedetails"whichincluded such details as the conduct of foreign negotiationsand the application and disbursementof public moneys inconformityto the general appropriationsof the legislature,tobe key partsof the measuresthatthe people would judge.It may be arguedthat this establishesthe legitimacyof theexecutive, but not necessarilythat of subordinateadministra-259

tors or agencies, that is, public administratorsdoing publicTo a certainextent, this is hair splittingin thatadministration.neither the founders nor contemporaryAmericansexpect thepresidentto carryout the executive power alone. In addition,to some extent the position of administrationhas to be takenas a basic assumptionof goverment. As Waldo

Camilla Stivers teaches public administration at The Evergreen State College in Olympia, Washington. She is the author of Gender Images in Public Administration: Legitimacy and the Administrative State and a coauthor of Refounding Public Administration. Referenes Adams, Guy B., Prisclla Bowerman, Kenneth Dolbeare, and Camilla Stivers, 1990.