What kind of administrative state would we have, if the United States had been a true democracy earlier?

In this short essay, I begin to address that question. I argue that in light of the foregone democratic possibilities, the goal of equity asks too little of the administrative state.1 A broader vision directs us beyond equity, toward institutional reimagination and transformation.

The United States did not meet even minimal standards for egalitarian democracy until the late twentieth century, with the passage of the Voting Rights Act.2 Until then, essentially all governing institutions were designed and implemented without the legitimate assent of the governed, due to the exclusion of women and racial minorities. That includes the Constitution and its amendments, particularly those that set forth the structure of the U.S. government, as well as many of the “super-statutes” that have indelibly shaped the American past and present. Among the critical statutes are those that created major arms of the federal government, including Cabinet departments, boards, bureaus, and commissions. Until at least the 1960s, none of those laws and institutions emerged under actual democratic conditions.

Even the most formal theories of American law call for those suffering illegal harms to be returned to the position they would have enjoyed, had the illegality never occurred.3 It is impossible to reverse engineer the world as it would have been had the United States been a full-fledged egalitarian during the twentieth century, much less throughout earlier centuries. We cannot know, much less create, the precise governing institutions or programs that would have been designed under democratic conditions. Nonetheless, our inability to achieve perfect remediation (or even fully envision it), does not diminish the need to address the democratic illegitimacy of the current structures—and to consider how the foregone alternatives might have reshaped our polity.

Given the unknowable nature of that alternative, democratic world, how can we address the ongoing harm from living within structures that were undemocratically imposed? Such institutions resist popular change by design, so it is insufficient to call for any disgruntled groups to simply organize to overhaul them in the present.4 Further, those governing institutions have shaped the political power and material status of minority groups in the present, directly impeding their members’ ability to effect change. Stuck as we are within the world of nonideal alternatives, we can still engage in the (necessarily imperfect) thought experiment of considering what specific structures might have emerged under democracy. While this counterfactual exercise is speculative, it is a useful exercise of imagination nonetheless.

Imagining the counterfactual administrative structures and programs that democratic governance might have achieved serves multiple goals. Doing so casts our existing institutions in a different light—highlighting their contingency and the coerciveness of their imposition, thus prompting us to ask whether we need different ones. Further, imagining the democratic counterfactual helps to concretize the true scope of the harms that political exclusion imposed on communities of color and the nation. Such reflection may suggest aspirational lines of repair and transformation for the future.

Below, I suggest that the administrative state likely would have been more powerful, more centralized, and more generous in its redistributive aims, had the United States been an actual democracy earlier. People of color were both politically excluded and among those most likely to benefit from such administrative structures and programs. I illustrate this point with the case of federal aid to education. Beginning in the Reconstruction era, federal efforts to enact national aid to schools to help equalize schooling for all children failed for nearly a century; those failures rested, in part, on Black disenfranchisement in the South.

Thus, in the case of education, rather than simply aiming to make existing institutions more equitable, we should ask what a century, or even several more decades, of egalitarian school investment might have meant for poor Black and white children, for the administrative state, and for our politics. Such investments might have been transformative at all those levels.

One caution: my counterfactual is not meant to perfectly map what actually might have unfolded, much less prove but-for causation and resulting harms. Accurately performing either inquiry seems impossible. Rather, this counterfactual is meant to invigorate and deepen our collective sense of democratic loss, and by the same implication, our sense of democratic potential. We have so recently and imperfectly experienced democracy, that we cannot gauge its true potential as of yet.

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