What kind of administrative state would we have, if the United States had been a true democracy earlier?<\/p>\n
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 <\/span>A broader vision directs us beyond equity, toward institutional reimagination and transformation.<\/p>\n 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\u00a0<\/span>Until then, essentially all governing institutions were designed and implemented\u00a0without the legitimate assent of the governed, due to the exclusion of women and\u00a0racial 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\u00a0\u201c<\/span>super-statutes\u201d <\/span>that have indelibly shaped the American past and present.\u00a0Among the critical statutes are those that created major arms of the federal government, including Cabinet departments, boards, bureaus, and commissions.\u00a0Until at least the 1960s, none of those laws and institutions emerged under actual\u00a0democratic conditions.<\/p>\n Even the most formal theories of American law call for those suffering illegal\u00a0harms to be returned to the position they would have enjoyed, had the illegality\u00a0never occurred.3 <\/span>It is impossible to reverse engineer the world as it would have\u00a0been had the United States been a full-fledged egalitarian during the twentieth\u00a0century, much less throughout earlier centuries. We cannot know, much less create, the precise governing institutions or programs that would have been designed\u00a0under 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\u2014<\/span>and to consider how the foregone alternatives might have reshaped our polity.<\/p>\n Given the unknowable nature of that alternative, democratic world, how can\u00a0we address the ongoing harm from living within structures that were undemocratically imposed? Such institutions resist popular change by design, so it is\u00a0insufficient to call for any disgruntled groups to simply organize to overhaul\u00a0them in the present.4 <\/span>Further, those governing institutions have shaped the political power and material status of minority groups in the present, directly impeding\u00a0their members\u2019 ability to effect change. Stuck as we are within the world of nonideal alternatives, we can still engage in the (necessarily imperfect) thought\u00a0experiment of considering what specific structures might <\/i>have emerged under democracy. While this counterfactual exercise is speculative, it is a useful exercise of imagination nonetheless.<\/p>\n Imagining the counterfactual administrative structures and programs that democratic governance might have achieved serves multiple goals. Doing so casts our\u00a0existing institutions in a different light\u2014<\/span>highlighting their contingency and the\u00a0coerciveness of their imposition, thus prompting us to ask whether we need different ones. Further, imagining the democratic counterfactual helps to concretize\u00a0the true scope of the harms that political exclusion imposed on communities of\u00a0color and the nation. Such reflection may suggest aspirational lines of repair and\u00a0transformation for the future.<\/p>\n Below, I suggest that the administrative state likely would have been more\u00a0powerful, more centralized, and more generous in its redistributive aims, had the\u00a0United States been an actual democracy earlier. People of color were both politically excluded and among those most likely to benefit from such administrative\u00a0structures 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\u00a0to schools to help equalize schooling for all children failed for nearly a century;\u00a0those failures rested, in part, on Black disenfranchisement in the South.<\/p>\n Thus, in the case of education, rather than simply aiming to make existing\u00a0institutions more equitable, we should ask what a century, or even several more\u00a0decades, of egalitarian school investment might have meant for poor Black and\u00a0white children, for the administrative state, and for our politics. Such investments\u00a0might have been transformative at all those levels.<\/p>\n One caution: my counterfactual is not meant to perfectly map what actually\u00a0<\/i>might have unfolded, much less prove but-for causation and resulting harms.\u00a0Accurately performing either inquiry seems impossible. Rather, this counterfactual is meant to invigorate and deepen our collective sense of democratic loss, and\u00a0by the same implication, our sense of democratic potential. We have so recently\u00a0and imperfectly experienced democracy, that we cannot gauge its true potential as\u00a0of yet.<\/p>\n