The study of public affairs is inevitably particularistic; that is, it is focused upon analysis and management of the public’s business as that business is defined by a particular society at a particular time. Such a study must begin with the rules a given society has established to direct and constrain its government; that is, with analysis of constitutional assumptions about the roles, rights and responsibilities of government and its citizens, and the relationship between them.
BACK TO BASICS: Citizenship, Public Administration and the Constitution
Sheila Suess Kennedy
The Founders, the Constitution, and Public Administration: A Conflict in World-Views
Michael W. Spicer
Georgetown University Press (1995)
Public Service, Ethics & Constitutional Practice
John A. Rohr
University Press of Kansas (1998)
A Republic If You Can Keep It: Constitutional Politics and Public Policy
William L. Morrow
Prentice Hall (2000)
Constitutional Competence for Public Managers: Cases and Commentary
David H. Rosenbloom, James D. Carroll, Jonathan D. Carroll (2000)
F.E. Peacock Publishers, Inc.
The study of public affairs is inevitably particularistic; that is, it is focused upon analysis and management of the public’s business as that business is defined by a particular society at a particular time. Such a study must begin with the rules a given society has established to direct and constrain its government; that is, with analysis of constitutional assumptions about the roles, rights and responsibilities of government and its citizens, and the relationship between them. Two years ago the editor of this journal posed a question about that relationship that is of critical importance to those of us who teach public affairs. Responding to the challenges posed by Robert Putnum’s initial “Bowling Alone” essay (Putnam 1995), James Perry wrote, “The civic engagement debate raises normative questions about educators’ obligations to maintaining and enhancing civic life. It also raises technical questions about what we substantively teach our students and how that teaching affects civic engagement.” (Perry 1998:iii)
What are those normative and technical questions? How do we teach students to approach public policy from a ‘civic engagement’ perspective? How do we identify the nature and importance of mediating institutions to the conduct of public and governmental affairs? How do we educate students for that broader citizenship that will connect them to the principles and values that are most basic to American governance? How do we ensure that they will recognize and accommodate the systemic structures that constrain public managers in the American constitutional democracy: separation of powers, federalism, statutes and administrative rules, the political landscape? In short, how do we marry citizenship education to public management skills, so that public policy will be informed by both sets of competencies?
A well-regarded introductory public affairs text describes the policy process as a series of eight steps: 1) establish the context; 2) formulate the problem; 3) specify project objectives; 4) explore alternative solutions; 5) set the policy; 6) develop an implementation plan; 7) monitor and evaluate; and 8) recycle the process. (Bonser, McGregor and Oster 1996). The books discussed in this essay make a point which is too often lost in public policy classrooms, and too infrequently made by otherwise excellent textbooks: any attempt to “establish the context” and proceed through the remaining seven steps must begin with the Constitution and Bill of Rights.
Constitutions are the original declarations of public policy. They embody a society’s fundamental philosophical assumptions about law, legitimacy and government power. They dictate the ways in which we “formulate the problems” and effectively foreclose exploration of certain “alternative solutions.” The United States Constitution does not permit American officials to entertain the “alternative solution” of martial law when burglary rates get too high, or the “alternative solution” of censorship when music lyrics are too suggestive. It does not permit us to reduce welfare rolls by refusing to feed Hispanic children, or to combat pollution by appropriating privately owned property. The Constitution controls how we “set the policy” and how we proceed with the “implementation plan.”
If constitutions circumscribe and prescribe the arena within which public policy debate may occur, familiarity with constitutional principles also provides a common language enabling meaningful democratic dialogue. Students need not agree with every choice made by the nation’s founders, but they do need to understand what those choices were, why they were made, and why they matter today. Without that essential framework, public policy issues cannot be properly framed or clearly understood; they will tend to be viewed as isolated and unconnected problems. With constitutional literacy comes recognition that certain underlying principles will be as applicable to discussions of welfare reform and land use as they are to school choice or public health or gay rights.
The very term “public affairs” implies the existence of both public and private realms. Different constitutional systems define those spheres differently. In the United States, we have drawn a distinction between the public sector, by which we mean government and its agencies, and civil society, by which we mean the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a crucial element of most policy decisions. It is extremely dispiriting to encounter students who are simply unaware of the concept of state action, who have never been taught that the Bill of Rights limits government only, and that as a consequence, we must ask different questions when we are proposing government interventions than when we are contemplating other kinds of collective social action. If public affairs students came to our classrooms with an adequate foundation in American government, if our high schools and undergraduate schools required constitutional competence, those of us who teach public affairs could simply assume that the foundation was in place, and could engage in the sorts of policy analysis discourses near and dear to most of our hearts. But we cannot make that assumption, and it is arguably educational malpractice to confer degrees in public affairs on students who lack knowledge of—and appreciation for—the systemic underpinnings of the civic enterprise.
That said, conscientious teachers who want to begin with the basics do not have a wealth of pedagogical materials available to them. Too many books dealing with public administration ignore or slight the Constitution, or assume a greater familiarity with Constitutional principles than most students are likely to have. The four books considered here are among the comparative few that address that deficiency. Three of the four have particular strengths to offer, depending upon the needs of, and other resources available to, an individual instructor.
The Importance of Constitutional Worldviews
Written in 1995, Spicer’s slender book, The Founders, the Constitution and Public Administration has not received the attention it deserves. The book makes a strong case for the importance of Constitutional values to public administration. Indeed, he begins with the assertion that public management that is not rooted in the Constitution lacks legitimacy, a view that Rohr and Rosenbloom would almost certainly endorse. “The purpose of this book,” Spicer says in his introduction “is to examine the worldviews underlying public administration and the Constitution. It is also to see how our vision of public administration might be modified so as to render it more compatible with the worldview of the Founders.”(10)
Spicer describes two contrasting worldviews, which he calls rationalist and anti-rationalist. Rationalists, as he uses the term, believe that there is such a thing as a common good, or common will, of a community, that it can be found through the exercise of reason, and that it can be realized through government as the chief agency of social cooperation. Rationalists “distrust ideas derived from custom and tradition” (14) and place great faith in science and in experts. Rationalism presents a “profoundly optimistic” view of our human ability to mold and control the physical and social environment (20).
Those whom Spicer labels as anti-rationalists, on the other hand, agree with Locke that “the comprehension of our understandings comes exceedingly short of the vast extent of things” (21), and that it is better to leave individuals to fulfill their own desires and ambitions, provided they do not harm others.
Spicer suggests that public administration, with its early emphasis upon scientific management, grew out of the rationalist worldview, and cites the increasing emphasis on policy analysis, management science, and systems analysis in public administration, the current focus on computers and management information systems, and the current popularity of techniques for reinventing government as evidence of a continuing faith in rationalism and science.
The Constitution, however, is based upon the worldview Spicer has labeled anti-rationalist. Spicer cites Madison’s abiding concern over the abuse of power by majorities, his belief in the importance of checks and balances, and his conviction that “ambition must be made to counter ambition”(36). A quote from Hamilton underscores the Founders’ conviction that it is better for government to do too little than too much, better to regret that good laws didn’t pass than to regret that bad laws did.
Because public administration has concentrated on the need to legitimize the administrative state, it finds itself at odds with a central Constitutional concern, the need to limit power. For public administrators intent upon steering the ship of state, the Constitution is far too often seen as a problem to be circumvented, rather than a basis upon which to build legitimacy.
The bulk of the book is an exploration of this theme. Spicer revisits the Friedrich-Finer debates (Friedrich 1940, Finer 1941) and relates them to Constitutional checks on state power. He then outlines a vision for public administration more consistent with the anti-rationalist worldview as he has described it, and concludes with a discussion of what such an approach might mean for a system of ethics governing the exercise of administrative discretion.
Whether one agrees entirely with Spicer’s thesis or not, the book provides an important perspective on the foundations of public administration, and raises issues deserving of more sustained attention. As valuable as it is as background for the public affairs instructor who wishes to bring constitutional literacy into the classroom, however, it has considerable drawbacks as a text. Perhaps the most serious of those drawbacks is the unfortunate terminology: calling the Founders “anti-rationalist” is simply counter-intuitive to most readers. When he further characterizes administrative decision-making as either “discretionist” or “instrumentalist,” the language becomes even more obscure. While Spicer takes great pains to define his terms, he acknowledges that they are idiosyncratic to this discussion. Rather than clarifying his concepts, the terminology gets in the way of the argument. The book also requires a fairly high level of familiarity with Constitutional principles; it is not (nor is it intended to be) a primer on the relation between the Constitution and public administration. It is an argument for a more honest rapprochement between the two, and in that, it succeeds admirably.
The Ethical Public Manager
Public Service, Ethics & Constitutional Practice by John A. Rohr, one of the pre-eminent scholars in the field, brings together a series of lectures given over a period of nearly thirty years. The book, Rohr tells us, has three goals: to remind public servants of the nobility of their calling; to stress the importance of the constitutional dimension of their work; and to encourage public managers to make greater use of constitutional language to describe their everyday activities. In connection with the third goal, he states his belief that “one of the most fundamental problems with the public management movement” is its failure to emphasize that the job of the public manager is to implement the Constitution (xi).
The book arranges the lectures thematically, rather than chronologically. Part One, “Presenting the Problem” addresses the responsible exercise of administrative discretion. Part Two is devoted to the teaching of administrative ethics, and is of particular interest to those of us in the profession. Part Three considers “The Character of the Civil Servant” from a number of perspectives, both positive and negative. Part Four approaches separation of powers as an ethical issue, analyzing the dilemma of civil servants placed in the middle of power struggles between the legislative and administrative branches of government. Part Five puts the American experience in an international context, providing comparisons with civil service and public administration in Great Britain and France.
Where Spicer provided an overarching theoretical framework, Rohr’s essays focus on specific issues faced by bureaucrats, a term he defines in his first essay as “tenured public officials who are neither elected nor politically appointed” (3). He explores issues of legitimacy and constitutional accountability in the context of bureaucratic discretion, and explores the inevitably political nature of public service, the “myth of the politically neutral civil servant” who nevertheless exercises enormous political power (7). He notes in the second essay, “he who defines the public interest surely governs”(14) and he goes on to endorse Carl Friedrich’s statement “to execute public policy is to make it” (15). The cumulative effect is to impress upon readers the constitutional significance of the public manager’s job, and the manager’s concomitant obligation to promote Constitutional values.
If that Constitutional obligation is implicit in Part One, it becomes explicit in Part Two, where Rohr argues for reliance on constitutional principles as the starting point for teaching ethics in schools of public administration. Noting that the cultural and religious diversity of the American polity makes a metaphysical basis for value judgments almost impossible, he argues the Constitution of the United States is the preeminent symbol of our political values, and an oath to uphold the Constitution therefore represents a commitment to uphold the values of the regime that is thereby created (22). This is a theme that echoes through the book. During a discussion of ethics in management training, for example, Rohr writes “[O]ne can make the argument that in principle the oath of office creates a moral community among federal employees that demands a moral commitment to constitutional principles that is not required of ordinary citizens” (35) In another essay, reflecting on the meaning of the oath of office, he says
“What I am suggesting is that among the skills and knowledge that we should look for in the public administrator is a professional competence in the constitutional heritage. This should not be confused with the lawyer’s
competence in constitutional law, which must be up-to-date and focused
on advocacy. The case for the administrator as constitutionalist deals more with history than with the present, with insight rather than advocacy, with argument rather than law”(75).
Perhaps the most eloquent statement of this theme occurs in the essay entitled “A Constitutional Theory of Public Administration.” After noting that adherence to constitutional principles is independent of partisan ideology, that “The Constitution transcends a given tax policy, a weapons system and food stamps,” he writes
“The link between subordination to constitutional masters and the freedom
to choose among them preserves both the instrumental character of public
administration and the autonomy necessary for professionalism. In this way,
we can reinstate the great insight of the discredited dichotomy between
politics and administration…By suggesting a theory of public administration
that combines constitutional subordination and autonomy, I hope to preserve
the enduring insight of the venerable dichotomy without succumbing to its
naïve view of public administration as apolitical” (89-90)
Public Service, Ethics & Constitutional Practice works these observations into discussions focused on quite specific concerns of public managers, from financial disclosure requirements and ethics in the senior executive service to discussions of the Independent Counsel statute. This balance between “real world” issues and constitutional theory make it appropriate and highly useful as a supplementary reading for the classroom. Its one deficiency for that purpose is its almost exclusively federal perspective. For those instructors whose students are more likely to enter municipal and state agencies, materials applying the book’s insights to state and local government issues would increase its relevance.
Rohr’s book, like Spicer’s, addresses the significance of constitutional literacy to the practice of public management. It is not a constitutional textbook. These essays have been written for readers who already know their constitutional principles, or are in the process of learning them. While the book may encourage students to study the Constitution, it is not intended to be, or to substitute for, that study. The value of the book lies in its insistence on the Constitutional context of public service.
The Constitutional as Obstacle
Spicer and Rohr do not speak for everyone in the field, however, as is obvious from even a superficial reading of a new textbook written by William L. Morrow.
Several years ago, when the Seventh Circuit Court of Appeals reversed a decision of an Indiana district court, it suggested, in a felicitous phrase, that the district court Judge had been “tone deaf to the Constitution.” (Berger, 1993) A Republic If You Can Keep It demonstrates a similar inability to hear the constitutional music.
When A Republic If You Can Keep It was published early in 2000, it looked as if it might fill the need for a basic text that would tie policy making to specific constitutional principles. The Table of Contents was encouraging: beginning with “Public Policy: The Constitutional Cornerstone,” it continued through “The Constitution, Democracy, and Public Policy: The Historical Roots,” and a variety of chapters devoted to Popular Consent, the Presidency, Congress, Executive-Legislative Relations, Federalism, the Judiciary and other pertinent issues. Unfortunately, the book turns out to be an exemplar of the rationalist approach described by Spicer, an approach that considers the Constitution an obstacle to be overcome rather than a framework for achieving legitimacy.
The author is clearly impatient with constitutional limits that constrain the powers of public managers. Two quotations will suffice to convey an attitude that pervades the text:
“Would a restructuring of the procedural (and therefore power) relationships between and among national policy institutions help make government more majoritarian, and therefore more responsive?” (424)
“The separation of powers encourages agencies to stray from the classic
objective of administration—the efficient, objective implementation of public policy” (431).
Throughout the text, Morrow emphasizes the need to adapt the Constitution to the challenges of the twenty-first century, and decries what he sees as a judicial tendency to use its provisions to justify obstruction (7).
Implicit in this “father knows best” approach to policymaking is the assumption that empowered majorities would endorse the solutions advanced by experts like Morrow (tellingly, one of his proposed solutions to the myriad problems created by the Constitution is contained in a discussion titled “Reinventing Government the Right Way” which is to say, his way).
The Constitution is not a sacred document, nor is it a perfect one. But it incorporates principles that have served us well throughout our history as a nation. The Bill of Rights was conceived as a bulwark against popular passions, against the “tyranny of the majority.” If, as Morrow seems to suggest, that principle has outlived its usefulness, it behooves him either to defend the authoritarianism he seems to endorse, or explain how his prescriptions will avoid it. Similarly, separation of powers and federalism were mechanisms purposely designed to slow policy-making, to encourage deliberation and impede hasty and ill-advised rulemaking likely to be desired by majorities. If we streamline government in the way Morrow advocates, perhaps the trains would run on time. But some of us might not be at liberty to buy a ticket.
Morrow recognizes that the Constitution confers legitimacy and acknowledges the reverence in which the document is held. Despite his faith in majorities, he concedes that there is no political will to radically alter or revoke the existing Constitution, which is clearly what he would prefer. Instead, he suggests “adapting” it in ways that would utterly eviscerate its central purpose, which was to check power. Presumably, this would allow the rationalist experts to have it both ways; they could make policy unencumbered by the pesky Constitution and wrap themselves in its symbolism in order to be seen as legitimate.
The book does focus attention on the conflicts between constitutional imperatives and what Spicer has called the discretionist approach to public management. And it contains useful discussions of several of the thornier problems we currently face in attempting to reinvigorate the civic culture: campaign finance excesses, media sensationalism, voter apathy. Some of the sections could be used in classroom exercises to demonstrate the clash of values between public management theorists of the scientific school and those who would embrace, rather than reject, our constitutional framework.
Getting It Right
David Rosenbloom and James and Jonathan Carroll have produced a book that is a welcome corrective to Morrow’s text. Also issued in 2000, Constitutional Competence for Public Managers is a highly readable combination of public administration theory and constitutional case law, updated to include issues raised by privatization and reinvention. It provides an introduction to constitutionalism specifically geared to public affairs students and highly relevant to their concerns. “Our objective,” the authors explain early in their first chapter “is to provide students and practitioners of public management with the knowledge that will make them constitutionally competent” (2)
In furtherance of that objective, the book begins with constitutional history and principles and proceeds by emphasizing constitutional values. There is a brief but very valuable discussion of the changes wrought by the Fourteenth Amendment, a topic few students are likely to have encountered, and absolutely necessary to an understanding of constitutional jurisprudence since the civil war. There is a discussion of the various approaches to constitutional analysis, mercifully couched in terms an intelligent layman can understand. In the very first chapter, the authors lay out with admirable clarity the fundamental liberties protected by the Bill of Rights. That chapter ends with a section on Constitutional Integrity that could have been written as a rebuttal to Morrow’s characterization of a Constitution that has outlived its usefulness:
“A document written in 1787 that still governs a complex nation such
as the United States must be both flexible and brilliant. Flexibility allows
it to accommodate vast social, economic, intellectual and technological change. Brilliance helps it endure. Adherence to the value of constitutional integrity ensures that adjustments and new interpretations do not diminish brilliance” (15).
The structure of the book is simple: a discussion of a particular constitutional principle or value is followed by several cases illuminating the principle. Chapter Two addresses the potential liability of public administrators for violations of individuals’ constitutional rights, a subject likely to get the students’ attention. Chapter Three, “Privatization and Outsourcing” begins with a discussion of the problems “New Public Management” poses for traditional notions of state action. This is not only a timely discussion, but one of enormous importance for public administration. As Smith and Lipsky (1993), among others, have argued, the steady increase in “contracting out” over the past twenty years has increasingly blurred the line between government and the private and nonprofit sectors (Smith and Lipsky, 1993). Commentators are increasingly questioning whether government can avoid compliance with the Bill of Rights by the simple expedient of hiring private firms or nonprofit organizations to perform governmental functions (Krotoszynski, 1995). The answer to that question will have enormous implications for public policy and public management.
Chapter Five, “Administrative Effectiveness” tactfully but firmly chastises those who would reinvent government without recognizing that “the Constitution places constraints on the means available to public administrators for implementing public policy” (105). Unlike Morrow, Rosenbloom and the Carrolls do not find impediments to efficiency in those restrictions, but rather “opportunities to promote vitally important values” (105).
The discussion of efficiency and the New Public Management in Chapter Six contains a particularly cogent analysis of the conflicting philosophies of NPM and the Constitution. Noting the NPM emphasis on employee empowerment, the authors quote Al Gore:
“…people—in government or out—are, for the most part, neither crooked nor stupid. Most people want to do the right thing, so long as the right thing makes sense. Perhaps the most important thing about the reinvention initiative, and its regulatory reform work in particular, is that it is based on a new assumption: that people are honest and that if you tell people what needs to be done, and let them get on with doing it, the chances are it will be done better—and more cheaply—than if you tell them how.” (127)
As the authors observe, this statement may or may not be an accurate view of human nature, but it is inconsistent with both the “underlying premises of the Constitution and the received political culture in the United States” (127)
Furthermore, they point out that one person’s prudent precautions against corruption and overreaching are the next person’s red tape. Deregulation and employee empowerment will inevitably create tensions with provisions of a constitutional structure designed to encourage accountability and discourage administrative capriciousness—especially the separation of powers and due process.
These passages illustrate what may be the book’s most valuable contribution, its explication of the tensions between equally important goals. As the authors demonstrate, the issue is not whether we want efficiency or constitutional accountability, liberty or security, equality or freedom. The issue is how we can be both efficient and accountable, free and equal and secure.
At the conclusion of their first chapter, the authors note “Much of the discussion in this chapter may seem alien to traditional education for public management. In many respects it is. Nonetheless, it is central to doing American public administration well.” (18) It is indeed. The extent to which the theme of constitutional competence remains “alien” is the extent to which we are shortchanging our students and the nation they will eventually lead. “Constitutional Competence for Public Managers” is an important tool for those of us who want to educate students to “do American public administration well.”
In many ways, America is more an idea than a place. Ours was the first nation to be based, not on geography or ethnicity or conquest, but upon a theory of social organization. That theory, and the values that informed it, became the basis of our constitutive documents: the Declaration of Independence, the Constitution and the Bill of Rights. The American idea is not monolithic, and it is constantly evolving, but it has real content and rests upon considered normative judgments about the conduct of public affairs. Trying to teach public administration without constant reference to those foundational judgments is like trying to teach reading without reference to the alphabet. Each of the four books reviewed here recognizes that necessity. Even Morrow, who finds much to criticize in the constitutional system of checks and balances, recognizes the centrality of its organizing principles.
Perry’s question about public affairs educators’ obligation for maintaining and enhancing civic life is, at its base, a question about the nature of the connections between citizenship, civic engagement and public administration. As these books suggest, the answer to that question is rooted in constitutional competence.
Berger v. Rensslaer Central School Corporation, 982 F.2d. 1160 (1993).
Bonser, Charles F., Eugene B. McGregor Jr., and Clinton V. Oster Jr. 1996. Policy Choices and Public Action. Upper Saddle River, N.J. Prentice-Hall.
Finer, Herman. 1941. “Administrative Responsibility in Democratic Government,” Public Administration Review, 1:335-350.
Friedrich, Carl J. 1940. “Public Policy and the Nature of Administrative Responsibility.” In Carl J. Friedrich (ed), Public Policy. Cambridge: Harvard University Press.
Krotoszynski, Ronald J. Jr. 1995. “Back to the Briarpatch: An Argument in Favor of Meta-Analysis in State Action Determinations” Michigan Law Review, Vol. 94, No. 2 (Nov.).
Perry, James L. 1998. “From the Editor-in-Chief.” Journal of Public Affairs Education, Vol. 4, No.4.
Putnam, Robert. 1995. “Bowling Alone: America’s Declining Social Capital,” Journal of Democracy,
Smith, Steven Rathgreb and Michael Lipsky 1993. Cambridge, MA. Harvard University Press.