The Deep State and Tocqueville

Aristotle appears to have been the one to introduce the distinction of dividing government into the few, the many, and the one. He is said to have further sub-divided government into good and bad forms. In the good form, the rulers (whether few, many or one) rule for the common good; in bad government, the rulers (whether few, many or one) think only of their own private good. By this standard, "good" governments have been decidedly rare and "bad" government very much the rule.

But he did make a more realistic distinction as well. Government is, if not good, at least acceptable if its rulers, whether few, many or one, respect the rule of law and not merely bad but unacceptably so if its rulers (few, many or one) do not respect the rule of law. The Baron de Montesquieu, the social philosopher who most influenced the Founding Fathers, divided government into three categories. Monarchy was government by a single ruler under law; despotism was government by a single ruler without the law; and republic was government by some or all of the citizens, either directly or by their representatives. The first distinction is a legitimate and important one -- does a single ruler rule by law or arbitrarily is an important distinction, as Aristotle would be quick to point out. And the third category lumps together way too many categories -- government by the many and by the few, direct and representative and, presumably, with and without the law. It has taken me time and patience to realize, but mere government by the many, elective government, or majority rule are not by themselves any promise of the rule of law. Majority rule without the law is simply mob rule.

Which leads me to the question of Donald Trump and the "deep state." David Frum had a pinned tweet (since replaced) that "deep state" simply means rule of law. It is a thought I have been turning over in my head since. Another major revelation to me was the concept that bureaucratic orderliness is really just another manifestation of the rule of law, and that despotism is always characterized by snarling of the bureaucratic order. Thus a government that is not democratic but nonetheless respects the rule of law ("liberal autocracy") would lack contested elections and meaningful legislatures, but would have a bureaucracy with clear and orderly chains of command, rules of conduct, and administrative rewards and punishments for breaking the rules. This is the "deep state," or at least one form of it. The “deep state” may also take forms that do not respect the rule of law, as with the Turkish generals who manipulated things behind the scenes and killed opponents.

So, can government can respect the rule of law without a "deep state" maintaining the rule of law through bureaucratic order?  It is not a thing I am sufficiently interested in at present to want to delve into in great detail, but one I will seek some guidance from Alexis de Tocqueville's Democracy in America. In Tocqueville's time the U.S. federal "deep state" was minimal -- a very small army guarding the borders, a post office, a few customers inspectors, and not much more. Most government took place at the state level.  But even at the state level, administration was notably decentralized.  This is an issue that Tocqueville addresses at length because it was so different from the administration in his native France.

France is a country famous for its high degree of administrative centralism, and Tocqueville believed that it was taken a great deal too far, and that France was in need of greater local autonomy. As the alternative to France's administrative centralism, he offered Massachusetts -- not so much because Massachusetts was typical of the U.S. in Tocqueville’s day (it was not) but because the New England states offered the extreme example of administrative decentralism that he could contrast with France, i.e., it was as near as one could come to a functioning government without a "deep state."

Of course, in Tocqueville's day most New England towns were governed by their town meeting, the direct democracy of its active citizens,* which passed town ordinances, elected town officials, and elected and instructed representatives to the state legislature. The town meeting would make decisions such as where to build a school and had some power to pass ordinances, but most of the legislating would take place at the state level. However, the state lacked the administrative apparatus to enforce its laws. Instead, they would be carried out by elective town officials. The Board of Selectmen handled most day-to-day business, but there were other officials as well:

The assessors rate the township; the collectors receive the rate. A constable is appointed to keep the peace, to watch the streets, and to forward the execution of the laws; the town-clerk records all the town votes, orders, grants, births, deaths, and marriages; the treasurer keeps the funds; the overseer of the poor performs the difficult task of superintending the action of the poor-laws; committee-men are appointed to attend to the schools and to public instruction; and the road-surveyors, who take care of the greater and lesser thoroughfares of the township, complete the list of the principal functionaries. They are, however, still further subdivided; and amongst the municipal officers are to be found parish commissioners, who audit the expenses of public worship; different classes of inspectors, some of whom are to direct the citizens in case of fire; tithing-men, listers, haywards, chimney-viewers, fence-viewers to maintain the bounds of property, timber-measurers, and sealers of weights and measures.

Tocqueville reports that there were 19 such positions. All of these were elective positions. All served one-year terms. All adult male citizens were expected to hold some office over their lifetimes, All offices were paid, so that poorer citizens could afford to hold them. There was no formal hierarchy among them. Presumably there was an informal hierarchy, i.e., it was presumably more prestigious to be a selectman than a chimney viewer. But there was no formal chain of command. The selectman had no administrative authority over the chimney view and no authority to give him orders; but all were subordinate to one common superior – the people in their town meeting.  In short, there was plenty of government going on, but very little deep state.** 

This was in contrast to contemporary France, where there was a highly centralized bureaucracy and a formal chain of command. The rule of law was enforced by administrative sanctions, i.e., by promotions and demotions and, in extreme cases, by firing. How was the rule of law enforced in New England without such a hierarchy, where the only superior was the town meeting?  And it turns out that Massachusetts did, after all, have a deep state, albeit a rather skimpy one, and that deep state was called on to keep local elected officials within the rule of law.

Tocqueville points out that there are three ways that a public official can offend. He can do what the law forbids. He can fail to do what the law requires. Or he can comply with the letter of the law but just not do a good job. In Tocqueville’s France, no clear distinction was made among these three types of offense; all were punished by administrative sanctions such as demotion and possibly dismissal. In the United States, the distinction was essential. If a Massachusetts official did anything illegal, he was subject to criminal prosecution before the courts. (Both prosecutors and judges were part of the scanty “deep state.”) If he complied with all laws but just didn’t do a good job, he would lose the next election.

The problem was what would happen if an official did not commit any crimes, but failed to fulfill his legal duties. One might think he would lose the next election, but what if those duties were inherently unpopular? The assessor was a classic example, since his job was to assess the value of land for property taxes. An assessor who failed to assess land so that taxes would not be collected would probably be more popular than one who did his job with scrupulous honesty. But he would not be committing an actual crime that could be prosecuted. So justices of the peace, appointed by the governor(more "deep state"), were empowered to impose a fine on the town that failed to meet its obligations, or to replace delinquent officers with ones who were prepared to do their jobs. But how would justices of the peace know if assessors (or other unpopular functionaries) were failing to do their job? After all, the townspeople would have no incentive to tell them. Apparently this problem was resolved by creating an incentive – to offer informants a portion of any fines imposed as a result. Tocqueville regarded this as a form of corruption and a degradation of the people’s morals.*** He thought it could be better handled by a small extension of the deep state – the appointment of a public inspector who would see if officials were doing their duties and bring actions if they were not.

Within these bounds, however, Tocqueville was impressed by how much discretion New England officials were allowed in the exercise of their duties, comparable to the arbitrary power of officials under a despotism. As examples, he said that selectmen were given complete discretion to decide who to include in the jury pool, and who to identify as public drunkards forbidden to buy liquor. He proposed that such power was in no danger of abuse because the officials who held it were always up for reelection after just one year and therefore would not dare offend their fellow citizens.

In despotic States . . . [t]he sovereign, who has under his control the lives, the property, and sometimes the honor of the men whom he employs, does not scruple to allow them a great latitude of action, because he is convinced that they will not use it to his prejudice. In despotic States the sovereign is so attached to the exercise of his power, that he dislikes the constraint even of his own regulations; and he is well pleased that his agents should follow a somewhat fortuitous line of conduct, provided he be certain that their actions will never counteract his desires. 

In democracies, as the majority has every year the right of depriving the officers whom it has appointed of their power, it has no reason to fear any abuse of their authority. As the people is always able to signify its wishes to those who conduct the Government, it prefers leaving them to make their own exertions to prescribing an invariable rule of conduct which would at once fetter their activity and the popular authority. 

It may even be observed, on attentive consideration, that under the rule of a democracy the arbitrary power of the magistrate must be still greater than in despotic States. In the latter the sovereign has the power of punishing all the faults with which he becomes acquainted, but it would be vain for him to hope to become acquainted with all those which are committed. In the former the sovereign power is not only supreme, but it is universally present.
. . . . . . . 

It is only in limited monarchies that the law, which prescribes the sphere in which public officers are to act, superintends all their measures. The cause of this may be easily detected. In limited monarchies the power is divided between the King and the people, both of whom are interested in the stability of the magistrate. The King does not venture to place the public officers under the control of the people, lest they should be tempted to betray his interests; on the other hand, the people fears lest the magistrates should serve to oppress the liberties of the country, if they were entirely dependent upon the Crown; they cannot therefore be said to depend on either one or the other. . . . . They consequently agree as to the necessity of restricting the functionary to a line of conduct laid down beforehand, and they are interested in confining him by certain regulations which he cannot evade.

It would appear, then, that Tocqueville considered entrusting public officials with extreme latitude in their actions to be compatible with the rule of law because they could be counted on not to jeopardize their prospects of reelection by abusing those powers.

Several objections present themselves. One is what happens if a measure is unpopular but nonetheless necessary. Tocqueville discussed this at length (see above) and appears to agree that this is best handled by the intervention of the deep state.

Another is whether this rule would apply on any larger scale than a small New England town capable of the direct democracy of the town meeting. It was safe give the selectmen complete discretion in who to include in the jury pool or who to exclude from taverns in a small town. Would this same level of discretion be safe to exercise in a larger town like Boston? In a small township, any sort of abuse of power might soon become common knowledge. Can we count on every abuse of power becoming widely known in Boston? Let alone throughout the state of Massachusetts? (To say nothing of the whole United States). Certainly as we have moved away from small towns under direct democracy into a larger scale society, this rule has been found not to scale up. Arbitrary power in the hands of government functionaries, elective or appointed, is a formula for abuse. Clear, fixed rules have proven to be necessary in democracies as well.

Finally, there is the question of the majority oppressing the minority. Tocqueville, who gave us the expression "tyranny of the majority" is well aware of this danger. But his over-analyzed explanation of it does a poor job of conveying the real danger:

In America the majority raises very formidable barriers to the liberty of opinion: within these barriers an author may write whatever he pleases, but he will repent it if he ever step beyond them. Not that he is exposed to the terrors of an auto-da-fe, but he is tormented by the slights and persecutions of daily obloquy. His political career is closed forever, since he has offended the only authority which is able to promote his success. Every sort of compensation, even that of celebrity, is refused to him. Before he published his opinions he imagined that he held them in common with many others; but no sooner has he declared them openly than he is loudly censured by his overbearing opponents, whilst those who think without having the courage to speak, like him, abandon him in silence. He yields at length, oppressed by the daily efforts he has been making, and he subsides into silence, as if he was tormented by remorse for having spoken the truth.

Tocqueville goes at length on this subject, seeming to indicate that the tyranny of the majority operates by certainty rather than severity of punishment, that nothing worse is at stake than loss of career, reputation, or popularity. When offering concrete examples, what he describes is a good deal more alarming. He gives, for instance, a newspaper in Baltimore that criticized the War of 1812 when the war was widely popular in that city. An angry mob sacked the newspaper building and destroyed the presses. The militia refused to protect the editors, so they were placed in jail for their own protection. But the mob broke in, killed one of the editors and severely beat the others, and was acquitted by a jury. He also mentions that black people, though permitted by law to vote in free states, dared not do so for fear of the mob. It was also at this time that the abolitionist movement was in its very earliest infancy, and was the constant target of angry mobs.

Clearly, then something a good deal more serious was at stake than merely career and reputation. What Tocqueville called the tyranny of the majority might more accurately be called the tyranny of the mob. And who was on hand to fight the tyranny of the mob? To all appearances, the professionals in charge of impartial enforcement of the law, against the popular and the unpopular alike. In other words, the deep state.

Finally, Tocqueville also makes clear why the deep state by itself cannot be counted on to uphold the rule of law. In contemporary France, the deep state (the formal bureaucracy) made an orderly, rational administration within the rule of law. Adherence to the rules was enforced by administrative rewards and penalties – promotion and bonuses versus demotion and pay cuts or, in the worst cases, firing. These administrative penalties applied to all the offenses Tocqueville identified – lawful but inept administration, neglect of one’s duties, and actual illegality.

And that was the problem. Public officials who committed actual illegal acts were not subject to prosecution in the ordinary courts, but only to administrative penalties. What if a superior official ordered the illegal behavior? Presumably he would be subject to administrative penalties if caught, but what if the offense went all the way up the chain of command? France apparently had a Council of State that decided whether to subject public officials to prosecution in the ordinary courts for illegal acts committed in the course of their public duties. This Council was part of the bureaucracy (the “deep state,”) answerable to exactly the same officials who might order the illegality in the first place! The scope for corruption and illegality here is obvious. Tocqueville spoke with clear outrage about this arrangement and commented that whenever he attempted to explain it to Englishmen or Americans, they simply refused to believe that such an obvious and manifest injustice could be openly authorized.

Tocqueville praised the United States for making all public officials who committed illegal acts subject to prosecution in the ordinary courts. He also commented that making public offices elective and making the officials who held them subject to ordinary prosecution were necessarily related. Because elective officials were not subject to administrative penalties, criminal penalties were essential, even more so that in a formal civil service. And he made two warnings to any country enacting changes to its form of government but wanting to preserve the rule of law.

A government going from appointed to elective officials must also make them subject to prosecution in the ordinary courts. There tended (he commented) to be more pressure to make officials elective than to make them answerable to the courts, but both measures must be adopted together, or corruption would go unpunished so long as it was popular and democracy would degenerate into mob rule.**** And a government going from elective to appointive officials must limit their discretion and set rules to govern their conduct, or it would set up petty tyrants, and monarchy would degenerate into despotism.
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*Property qualifications had been removed by this time, but women were not allowed to participate.

**It is a shame that Tocqeville did not make it to the South, where there was very little "deep state" and also a minimum of regulatory government.  Yet there were serious internal security issues (i.e., large numbers of slaves).  Slave patrols were not made up of professionals (i.e., deep state), but of ordinary citizens, whether volunteer or draftee.  It would be most interesting to know how such a system operated, and whether it preserved the rule of law.
***Parallels to Athens, another very diffuse democracy with minimal "deep state" are clear. Lacking public prosecutor, Athens was forced to rely on informants, many of whom were sleazy and malicious characters. Informants of this type are one of Aristophanes’ favorite targets.
****The case of Joe Arpaio (and many others) stands as proof that even if elective officials are subject to prosecution, they can be extremely difficult to hold within the law if they know how to demagogue well.