institutional survival in the postmodern age: administrative practice and the american...

Institutional Survival in the Postmodern Age: Administrative Practice and the AmericanConstitutional LegacyAuthor(s): Douglas MorganSource: Administrative Theory & Praxis, Vol. 18, No. 2 (1996), pp. 42-56Published by: M.E. Sharpe, Inc.Stable URL: http://www.jstor.org/stable/25611176 .

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Douglas Morgan I Portland State University I

INSTITUTIONAL SURVIVAL IN THE POSTMODERN AGE:

ADMINISTRATIVE PRACTICE AND THE AMERICAN

CONSTITUTIONAL LEGACY

Administrative Theory and Praxis, 18(2): 42-56, 1996.

INTRODUCTION

For those of us living under the post-modern dispensation, irony has become the chief hallmark of our lives. In our cuisine, our art, and our politics we are confronted and even assaulted by contradictory experiences. Peppercorn goat cheese cake, salsa sushi, and chutney frybread taste better than they sound. We

enjoy our immersion in the Hershorn Museum of Modern Art more than we can make sense of it. In our

politics, the most conservative defenders of traditional values are leading the assault on some of our most

fundamental social and political institutions. At the same time, there is a call by liberals to rely less on the instruments of government in favor of strengthened social institutions, such as the family, churches, and

philanthropic associations. As with all irony, there is a

two-fold consequence to the kind of contradictory experiences that characterize our age: it arouses our senses through ridicule, and it arouses our critical faculties through mockery. Mockery, unlike ridicule, not only humors us, but it is also inspires us to reflect on the more serious transformative purpose that serves

as the object of our mockery. This is why satire has

traditionally been closely allied with philosophy and

social theory.

One of the more perplexing ironies of modern

times - which provides the larger backdrop for this

essay ? is the way in which our social institutions are

undergoing a loss of legitimacy at the same time that

concern for healthy social institutions is in fashionable

ascendance. This is not simply the growing affection of

a love lost. Unlike the lament of the lost love, the lover

is celebrating the institution of marriage while not being able to practice what is preached. In short, like most of

life in our postmodern age, what appeals to our rational

faculties is not necessarily appealing to our sensibilities.

In this essay I wish to focus on a small but important dimension of this conundrum.

This essay assumes the unenviable task of

articulating and defending the relevance of our American constitutional legacy for the future of American administrative practice. This task is unenviable for two reasons. First, it challenges some of the major assumptions and goals of the postmodern paradigm (Fox & Miller, 1995). In particular, it

challenges the three-fold claim that it is futile, useless, and harmful to give presumptive weight to the past and to any normative standards which this past embodies.

Second, it is always difficult, as well as risky, to defend the relevance of our rule-of-law tradition for administrative practice during a period of deep ideological dissensus. There is the inevitable risk during such turbulent times of having ones arguments

misappropriated for narrow and reactionary political agendas.

Despite the dangers of defending the past as

relevant to an increasingly rootless present and an

unknown future, I will make two arguments. First, I will argue that our constitutional legacy provides the foundation upon which all meaningful public administration discourse, theory, and practice must rest.

Second, I will argue that administrative structures and

processes are the key venue for transforming our

constitutional legacy into institutionalized practice. These are strong claims which obviously cannot be

fully argued in the scope of this short essay. My goal, instead, is to outline the basis for my claims and to

provide illustrative evidence to which more expansive

"proofs" must be added.

I will develop my argument in three parts. In

Part I, I will outline the essential features of our

constitutional legacy. In Part II, I will illustrate why this legacy is essential for describing, explaining, and

providing normative guidelines for administrative

practice. Finally, in Part III, I will draw on my observations in the previous sections to explain why I

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domain for institutionalizing our constitutional legacy. In the process, I will explicitly indicate where and how

my ruminations are connected to institutional analysis in general and to "neoinstitutionalism" in particular.

However, I will also make these connections as an

incidental part of my analysis throughout the paper.

PART I: THE AMERICAN CONSTITUTIONAL LEGACY

To speak of an "American constitutional

legacy" is problematic for at least two reasons. For one

thing, we have experienced dramatic reversals in what has been regarded as constitutionally required and

permissible since our Constitution was first put into

place. These changes have occurred in domains that are most central to our lives, starting with the treatment of

blacks, women, and various ethnic minorities. The reach of the Constitution into the work-place, the home, and

organizational life has been greatly expanded. More

recently, our courts are rethinking the protections required for private property. Some commentators have even expressed the possibility that the constitutional

protection of private property may come full-circle back to the rather doctrinaire and "absolute right" status it

enjoyed during the early days of the Marshall Court. If

so, property rights will have traveled almost as dramatic a road as equality.

All of these shifts, and especially reversals, can

easily lead one to conclude that our constitutional

legacy, in the words of Thrasymachus in Plato's

Republic, merely reflects the interests of the politically stronger. But even if one takes a less cynical and instrumental view of our constitutional legacy, the

complex interplay of the myriad social, political, economic, and personal forces (not to mention the forces of accident and chance) creates a second

difficulty in speaking of "our constitutional legacy." If we can not separate cause from effect, in what ways does our Constitution really "constitute" anything significant and lasting? It is this question I would like to address in the ensuing two sections of the paper. In so doing, I will use the term "legacy" to connote those elements of our constitutional past which stand apart from specific doctrinal interpretation, undergird our common understandings but are seldom explicitly articulated, function less as norms and values and more as taken-for-granted scripts, and provide common

legitimating ground for our polity in the face of

ideological dissensus in the political arena. In defining

legacy in this manner, I embrace many of the

assumptions of neoinstitutionalism which stand apart from earlier approaches to institutional analysis. These

assumptions include a shift "in theoretical focus from

object-relations to cognitive theory, from cathexis to

ontological reality, from discursive to practical reason, from internalization to imitation, from commitment to

ethnomethodological trust, from sanctioning to ad

hoeing, from norms to scripts and Schemas, from values to accounts, from consistency and integration to loose

coupling and from roles to routines ..." (DiMaggio &

Powell, 1991, pp. 26-27). In short, constitutional legacy consists of the background schema that contains and

perpetuates the underlying tensions that our constitutional polity deems essential for its long-term health (Jepperson & Meyer, 1991, pp. 248-253).

Given the above definition of legacy, there are at least three reasons for regarding our Constitution as

fundamentally constitutive of who we are as a political community and how we go about the task of governing ourselves. First, our Constitution signposts the major dangers that threaten a regime of ordered liberty. Second, it establishes a universe of public discourse that

gives presumptive weight to claims of principle over claims of power, to claims of right over claims of

interest, and to claims of the long-term over short term utilitarian calculations. Third, our Constitution bestows moral preeminence on individuals and the private sphere within which these individuals are given

maximum freedom to live out their life choices.

Signposting the Major Dangers That Threaten Democratic Governance

The chief legacy of our constitutional tradition is that it "frames" the most important problems that need attending in establishing and preserving a regime of ordered liberty. While this has traditionally been discussed under the broad theme of "balanced

government," insufficient attention has been given to the particular elements that need to be kept in balance and the implications of this balancing process for the career public service.

The practical experience of the founding generation taught them to worry about three dangers that threatened the Lockean project of self-government. If the King George experience taught them that the

good ship liberty can be run aground through the

tyrannical exercise of authority by the captain, the

43



Articles of Confederation taught them that it could be

equally run aground by incompetence ~ a ship that was

inadequate to the cargo, a poorly trained crew, insufficient resources to accomplish the mission,

unqualified officers, and improperly designed riggings that would likely fail or be inadequate during turbulent seas.

The inability of the Articles of Confederation to collect taxes, to deliver supplies and munitions to

troops, to defend the new republic against foreign aggression, and to settle petty jealousies among the states testify to the incompetence of the Articles of Confederation for the task of governance. But Shay's Rebellion taught the founding generation that even a

competently built and outfitted ship and a benign captain might not save the journey from an ill-tempered crew. In short, the ship of liberty could go down because of a lack of competence and energy or because of tyranny, whether it came in the form of a single individual or a majority.

In summary, the founding debates can best be viewed as an effort to create a proper balance that would prevent the greatest experiment in self-rule from

succumbing to the three major dangers to which it was most prone (Morgan, 1993). Of course, there continues to be strong differences of opinion as to which dangers deserve the greatest attention. Some, like the

Antifederalists, fear tyranny of the one more than

tyranny of the majority. Others, like the Federalists, fear incompetent and weak government to the excessive exercise of authority. Despite these differences, however, there remains an underlying consensus 1) that democratic governance is problematic and 2) that it needs successfully to balance the need for majority rule with the needs for protecting minority rights and the

energetic and competent delivery of government services. These tensions which frame the problematic nature of our constitutional legacy are summarized in Table I.

TABLE I

THE AMERICAN CONSTITUTIONAL LEGACY: PRESERVING LIBERTY FROM MULTIPLE DANGERS

Sources of

Danger Incompetence Usurpation Majority

Tyranny

Constitutional Values

Competence:

order, efficiency, effectiveness

Energy:

vision, creativity

Majority rule:

popular control, access

Minority rights:

protection of

property; freedom of speech, press, and assembly; equal protection

Cause/Reason "George

Washington Problem"

"Articles of Confederation Problem"

"King George Problem"

Hamiltonian Tradition Jeffersonian Tradition

"Shay's Rebellion Problem"

Madisonian Tradition

Constitutional Manifestation

Unitary Executive,

Representation as filter in direct Elections

(i.e., U.S. Senate, President, Separation of

Powers)

Representation,

Popular Elections, Federalism,

Checks and Balances

Bill of Rights, Separation of

Powers,

Checks and

Balances,

Federalism

44



The chief implication of this constitutional

legacy for the exercise of administrative discretion is

that it redefines the debate about the role and function

of career administrators and the bureaucracy within our

system of democratic governance. Instead of debating whether bureaucrats ought to be simply subservient to

the executive branch, bureaucratic discretion is judged by the extent to which it is used to maintain balance

among the competing claims of the majority, the

protection of minority rights, and competent performance of the tasks it undertakes. This does not make the exercise of administrative discretion any easier, but it does broaden the narrow legalistic framework within which the traditional debate has been conducted.

Our Constitutional Legacy as Universe of Discourse

The American system of government is

regarded as a rule-of-law regime. In part, this is because we have agreed to be governed by and through the consensual adoption of formal laws. But in large part we are considered a rule-of-law regime because the Constitution is regarded as an architectonic document that is treated as the supreme law of the land. It is our common text which frames all arguments for both

change and continuity. As deTocqueville observed, there is an ineluctable tendency for Americans to transform all political agitation into questions of legality and, ultimately, into questions of constitutionality. What are the practical consequences of this dimension of our constitutional legacy?

One of the chief consequences of this legacy is that how we engage in governance is frequently as

important as what those engagements produce in terms of tangible outcomes. Elsewhere, I have outlined in

greater detail (Morgan, 1990, pp. 75-77) the differences in the way in which the various branches of our constitutional system frame questions and establish different standards for what counts for a "good" warrant. For example, the legislative branch is structured and staffed to address questions that are

temporal and interest-centered while the administrative branch is structured and staffed to address questions that are more future and analytic-centered. Both of these styles of public discourse stand in sharp contrast to the kind of principle and intent-centered discourse characteristic of our courts. This is especially the case when our courts go beyond mere fact-finding to

interpreting law, whether it be common, statutory, or

constitutional law (Levi, 1949). When courts look for what a law means, they look for the underlying or

unifying principle that imparts the greatest consistency over time and the greatest unity over the wide-ranging diversity found in the case-by-case particulars (Levi, 1949; Lewis, 1966; Carter, 1979).

In Table II, I have summarized these differences in discourse among our three branches of

government. Since these differences result from our

constitutional system of governance, they surely constitute a major institutional legacy that has a

profound but subtle influence on the health of our

democratic polity. Not only are we inclined to underestimate the importance of this legacy, but we

underestimate the long-term influence this legacy has in

broadening narrow questions of expediency and short term interests into broader issues of principle and the

long-term public interest. DeTocqueville was not only right about the tendency of our rule-of-law system to transform narrow political differences into questions of

legality and constitutionality, but this transformational

process has a salutary influence on the long-term character of public discourse.

Bestowing Moral Significance on the Private Order

There is a third sense in which it can be said that our constitutional legacy is constitutive. Many neoinstitutionalists argue that the modern legal/rational nation-state creates the categories which make

individuality both possible and meaningful. According to this view our constitutional system of governance institutionalizes categories of meaningful action not

only in the public sector but in the private sphere as well. Notions of liberty, rights, intent, rationality, love, madness, and soul are the products of institutional forces that take on moral significance through the

agency and instruments of the polity. The modern state's fundamental duty, according to D?rkheim, is to

"progressively call the individual into moral existence"

(Friedland & Alford, 1991, pp. 239,238-240; Jepperson & Meyer, 1991). The great constitutionalists of modern time accomplished this by creating a limited public space which is without authority either to validate or to invalidate a person's real worth. In the words of John

Schaar, our constitutional order "serves as a mask behind which one's inner self can hide from the

probing, judging eyes of anonymous others ... In the constitutional polity, with its postulate of equality, each

45



TABLE II

COMPARATIVE CHARACTERISTICS OF JUDICIAL, ADMINISTRATIVE, AND LEGISLATIVE DECISIONAL FORUMS

Courts Administrative

Agencies Legislatures

Process

Characteristics:

1. Orientation Retrospective Prospective Transitory

2: Types of Facts Historical Social Temporal

3. Rules of Evidence "beyond reasonable doubt"

"preponderance of

evidence"

"due process" "reasonableness"

expediency

4. Decisional Rules stare decisis partly stare decisis,

partly workability

electoral survival

5. Decisional Mode Reason:

formal rulemaking Analytic: informal and hybrid rulemaking

Vote

B. Structural Characteristics:

1. Organization Professional with

political independence

Hierarchical with

political dependence the exception

Personalized with no

political independence

2. Mode of conducting business

Collegial: a relationship of autonomous equals

Bureaucratic:

a relationship of

unequals held together by rules that define role and function

Political: a relationship of equals (except where seniority is heavily relied on) held together by quid pro-quo agreements

Characteristics of Personnel:

1. Orientation Referees in a remedial

proceeding

Advocates in a

prophylactic proceeding

Agents in a bartering proceeding

2. Training Generalists Specialists supervised by generalists

Generalists

3. Tenure Generally based on

good behavior Political loyalty and technical competence

Outside: none Inside: combination of

seniority and election

46



of us in effect is under a contract of strictly limited

public liability" (Schaar, 1964, pp. 887, 884-891). Clearly, the emergence of individuality as the transcendent pillar upon which American institutional life rests is as much the outcome of a legal transformation as it is the natural outcome of economic and social forces.

In summary, our constitutional legacy can be

regarded as constitutive in three ways. First, it outlines the constituent elements of our democratic house. Just as a design architect insists that a properly constructed edifice have a roof, walls, and doors and that these be assembled so that the constituent parts remain in proper balance, so our constitutional legacy insists that our democratic edifice properly balance the need for energy and competence with the need for majority rule and the need for protecting minority rights. Our legacy does not bestow on any one part of our government exclusive

responsibility for this task. Nor does it tell us how the

balancing should be undertaken in particular instances. In fact, our constitutional legacy does not even provide us with any bright line test for determining when our democratic edifice is out of balance. But our legacy does distinguish the American democratic house from others that may give greater weight to simple majoritarian claims at the expense of minority rights and/or competent and energetic government.

Our constitutional legacy is not only constitutive by prescribing the constituent elements of our democratic house, but it also creates a universe of discourse that is distinctive to each of our three branches of government. The interplay among these universes of discourse is harmonized through the architectonic supremacy of the Constitution which

requires both public action and speech to be tethered to time-tested constitutional principle and reason. This

may not appear significant, especially since most public action and speech can find some high ground from which a "principled" justification can be rendered.

However, the requirement that official public action be consistent with constitutional principles provides the

community with at least a starting point from which to contest a particular suit of clothes and to judge the common dress. We all recall Richard Nixon's claim

that, as Commander in Chief, he had the constitutional

authority to bomb Cambodia. As the ensuing public debates illustrated, the truth of President Nixon' s claim turned out to be far less important than our shared text and tradition of constitutional governance. Instead of

debating the exercise of raw power, we end up debating, as deTocqueville observed, what constitutional

principle permits and whether a given exercise of power falls within its permissible boundaries.

Finally, our constitutional legacy creates and maintains a sphere of private space that simultaneously confers moral dignity on individual action and provides protections for its exercise.

PART II: HOW OUR CONSTITUTIONAL LEGACY AFFECTS ADMINISTRATIVE PRACTICE

In this section I will argue that our constitutional legacy, while frequently not sufficient, is

always necessary for describing, explaining, and setting normative standards to guide administrative practice. In

short, I am advancing a theory of institutionalism that is simultaneously descriptive, explanatory, and normative. While one may find particular instances where this claim appears not to be true, taken as a whole our constitutional legacy describes, explains, and

provides normative guidance for what Aristotle would call the "arete' of administrative practice." Arete' is the

particular excellence which gives a person or an institution its distinctive character. I will argue that the distinctive character of administrative practice is to be found in our American constitutional legacy. I will

develop this argument in three parts. In the first section I will use the example of "situs rights" to illustrate how

public organizations have been "constitutionalized" by the Supreme Court, thus creating an important bridge between constitutional discourse and modern

organizational theory and behavior. In the second section I will use the case of hybrid rule making to illustrate how our constitutional legacy is not only necessary for an accurate description of administrative

practice, but is also necessary to explain important developments that have occurred. Finally, in part three, I will use the emerging role of nonprofit organizations to illustrate how the normative dimensions of our constitutional legacy are influencing emerging administrative relationship with the nonprofit sector.

Administrative Constitutionalism as Descriptive Theory: The Case of Situs Rights

Perhaps the most emphasized feature of modern organizational life is the propensity of large bureaucratic institutions to transform employees and clients into mere instruments of organizational domination. To what extent has this characteristic of

47



public administrative life been recognized by, and

incorporated into, our constitutional legacy? The

expansion of rights by the Warren Court provides us with an opportunity to explore this question. I will

argue that the expansion of rights by the Warren Court can be understood in organizational terms in addition to traditional concerns for individual rights. Perhaps the best examples to illustrate this point are the series of cases in which the Court greatly expanded the rights of clients in our criminal justice and welfare systems. In the series of criminal justice cases that began with Gideon v. Wainwright (372 U.S. 335) and ended with Miranda v. Arizona, majority members of the Court seemed to be preoccupied by visions of coldly calculating bureaucrats who, because of the faceless and

domineering setting within which they operated, automatically intimidated clients. According to Warren in Miranda,

Even without employing ... the "third

degree" the very fact of custodial

interrogation exacts a heavy toll on

individual liberty and trades on the weakness of individuals ... This

atmosphere carries its own badge of intimidation. To be sure, this is not

physical intimidation, but it is equally destructive of human dignity (Miranda v. Arizona, 384 U.S. 436, 455, 457 (1966).

Lest it be thought that the problem of inherent

intimidation arises from the atmosphere of uniformed

officers in a police station, the Court expressed related concerns about the intimidating quality of large bureaucratic organizations when it decided in Goldberg v. Kelly (1970) to require hearings prior to the

termination of public assistance benefits. The Court

observed that "the welfare bureaucracy" through the

caseworker "usually gathers the facts upon which the

charge of ineligibility rests," thus making it difficult to

present the recipient's side of the controversy. Another

alternative is to rely on written submissions by the

recipients, but the Court concluded that this was "an

unrealistic option for most recipients, who lack the

educational attainment necessary to write effectively and who cannot obtain professional assistance." In the

light of these and other considerations the Supreme Court agreed with the District Court's conclusion that

"the possibility for honest error or irritable misjudgment

[are] too great to allow termination of aide without

giving the recipient a chance, if he so desires, to be

fully informed of the case against him so that he may

contest its basis and produce evidence in rebuttal"

{Goldberg v. Kelly, 397 U.S. 254, 266, passim).

Taken together, the Miranda and Goldberg cases represent three major developments that are of administrative significance. First, and perhaps most

important, the Court recognized the necessity of

extending due process rights to individuals who were not considered by the Court to be equal to the task of

managing their way through intimidating and complex bureaucratic settings that may even require professional assistance in countering "honest error" or "irritable

judgment." Second, the basis for extending these due

process rights is perhaps as important as the fact of their extension. Traditional constitutional law made

rights a function of a person's status as a citizen. For the Warren Court, however, the nature of rights to which an individual is entitled depended on where the

person is (the situs) and not simply on who the person is. Instead of asking what rights are owed to you as a

citizen, the Warren Court considered whether the setting was intimidating, confusing, mysterious, and otherwise

overpowering. Since police stations, courts, and welfare offices are places that disempower, clients may need

special help in the form of new rights to equal the

playing field.

Finally, the Court could not extend due process rights deeply into the setting of the welfare state without bestowing property-right status on the benefits the state made available to its citizens. Quoting extensively from the writings of Charles Reich, Justice Brennan in the Goldberg case noted that welfare entitlements ought to be regarded "as more like

'property' than a gratuity. Much of the existing wealth in this country takes the form of rights that do not fall

within traditional common-law concepts of property" (Goldberg v. Kelly, 397 U.S. 254, 262, footnote 8). "Thus the crucial factor in this context ... is that termination of aide pending resolution of a controversy over eligibility may deprive an eligible recipient of the

very means by which to live while he waits. Since he

lacks independent resources, his situation becomes

immediately desperate" {Goldberg v. Kelly, 397 U.S.

254, 264). Thus, the Court not only constitutionalized the processes of the welfare state, but it also

constitutionalized one of the most fundamental services

it provided.

While the Burger and Rehnquist Courts pulled back from the entitlement logic set in motion by the

Warren era, the Court has nevertheless extended

constitutional protections to a wide range of

48



administrative processes at the core of our modern welfare state. These include such administrative activities as parole and probation revocation and

disciplinary actions, school disciplinary actions, drivers license suspensions, the use of government institutions for debt collection through such mechanisms as

garnishment of wages and repossession and

sequestration of property, protection of reputation from

public branding by authorities as an alcoholic, and termination of tenured public employee or termination of nontenured public employees where the manner of termination holds the employee up to public scorn or ridicule and threatens the possibility of future

employment (Cooper, 1983, p. 154).

To summarize, our constitutional legacy has left an indelible imprint on the way in which our public institutions undertake their work. In fact, the influence of this legacy has been so far-reaching that it is

probably not an exaggeration to say that it stands on an

equal footing with organizational theory in helping us unravel patterns of organizational meaning within

public sector agencies.

Administrative Constitutionalism as

Explanatory Theory: The Case of Hybrid Rulemaking

Our constitutional legacy is not only necessary for an accurate description of administrative practice, but it is also necessary to explain some of the most

important administrative developments that have occurred in recent times, as the case of hybrid rulemaking will illustrate. Rulemaking is one of the most important activities undertaken by modern administrative bodies. It is the chief mechanism used by our system of governance to translate vague statutory policy guidelines into implementable practice.

Rulemaking is governed at the state and federal level by administrative procedures acts which

distinguish between two types of rulemaking, informal and formal rulemaking. Informal rulemaking requires "notice and comment," which means letting citizens know what is being administratively proposed and

allowing for a period for comment prior to formal

adoption of the proposed rule. Formal rulemaking (which is seldom required or used) resembles much

more the processes used by courts, with high burden of

proof standards, provision for cross examination, and formal requirements for findings of fact, conclusions of

law, and the reasons for each presented on the record.

The differences between formal and informal

rulemaking are summarized in Table III on the

following page.

In the late 1960's, a third alternative

developed, called hybrid rulemaking. It requires stricter

agency standards than "notice and comment," but it is not as rigidly structured and defined as formal

rulemaking. The characteristics of this in-between

approach are summarized below:

1. Gives a statement of the basis and

purpose of the rule and cites

supporting documentation;

2. Sets forth the data on which the

agency relied in developing the rule;

3. Describes the methodology the

agency employed in analyzing its data and developing the final policy;

4. Provides evidence that there was

adequate notice to those who might be interested in commenting on the

proposed rule;

5. Shows that a sufficient amount of time was provided so that comment could be prepared and submitted to the agency;

6. Indicates that comments could

challenge the data admittedly relied on by the agency, either on paper or

by some form of oral arguments;

7. Gives evidence that the agency did examine relevant significant public comments and responded, albeit

perhaps in a limited way, to those criticisms and suggestions (Cooper, 1983, p. 122).

What is important for purposes of my present argument is the rationale behind the above list of characteristics. Why should hybrid rulemaking require that agencies provide interested parties with the

methodology and reasons for making decisions and

responding to concerns and questions that have been raised? How do we explain what is going on here and can we adequately do so without invoking major

49



provisions of our constitutional legacy? I think not. The

hybrid rulemaking process emerged during a period of

increasingly contested disagreement over whether the market place could be trusted to protect our health and

preserve the environment. These disagreements not only arose over the meaning of data but also over what constitutes acceptable levels of risk. Ultimately, of

course, what was in dispute involved fundamental

political differences. For example, what level of use

begins to undermine the "aesthetic" value of a

wilderness experience? When do mountain bikes constitute an equal claim on the "multiple use" mandate of natural resource agencies? When is an increment of

pollution protection no longer worth the cost of the

benefit? When viewed in the light of such questions, hybrid rulemaking can best be understood as an effort

to develop some working administrative practices to

reconcile the inherent tensions at the heart of our

constitutional system of governance: the need for

accountability, the need to protect minority interests, and the need for competently developed and

implemented policy. Unlike formal rulemaking which is highly rights-centered and informal rulemaking which is problem-solving centered, the hybrid approach is a

balance between the two. It insists on more

accountability than is the case with informal

rulemaking, but not so much accountability that efficient and effective administrative action is sacrificed to preserve the rights of individual claimants. And unlike both informal and formal rulemaking, minority interests must be heard and a response given in writing.

TABLE III

FORMAL VS. INFORMAL RULEMAKING REQUIREMENT

Informal Requirements (?. 553)

Few oral proceedings, No specific presiding officer

No burden of proof problem

No major ruling on the record insured

No cross examination

Agency must maintain a record

No initial opinion required

No specific input or petitions required

Requires a concise general state of basis and purpose

No limit on the types of permissible communications

Source: Davis, 1979, p. 460.

Formal Requirements (66. 556 & 557)

Agency, member of agency, or a hearing examiner

(ALJ) must preside

Proponents of the rule or order has the burden of

proof

5. 556(d): Decision must be based on the whole record and supported by substantial evidence

5. 556(d): Such cross examination is available as may be required for full and true disclosure of the facts

5. 556(e): Agency must maintain a transcript, exhibits, and papers that make up the exclusive record

8. 557(b): The presiding office must issue an initial

decision

5. 557(c): Parties may present proposed findings, conclusions, and exemptions and the record must

include a rule on each of these

6. 557(c): Must include findings of fact, conclusions of law, and reasons for all material issues of fact, law, or discretion presented on the record

6. 557(d)(1): Limits ex parte communications

50



Administrative Constitutionalism as Normative Theory: The Role of Nonprofit Organizations and the Transformational Limits of Reinventing Government

The relationship between public sector agencies and nonprofit organizations provides an interesting case

study to test the normative influence of our

constitutional legacy on administrative practice.

Nonprofit agencies have become the chief service

provider of public services (Smith & Lipsky, 1993; Salamon, 1992; Hall, 1992). This role will only increase as the federal government expands its devolution agenda through block grants and as state and local governments struggle with the dual pressures of limited resources and a decline in confidence among citizens. One of the interesting questions is how much freedom nonprofit organizations will be given to

operate outside the constitutional constraints that apply to public sector agencies. For example, can a nonprofit

mental health organization contract for government services without having to comply with citizen

participation requirements, administrative rule-making procedures, freedom of information constraints, freedom of speech guidelines, and numerous other requirements of our system of governance? If these questions are

answered in the affirmative, government loses one of the major advantages for contracting out services,

namely, to save money and increase efficiency. While it remains to be seen how these issues will be resolved,

we have good evidence thus far that our constitutional

legacy will have a powerful normative impact through the mediating influence of administrative practice. This is illustrated by the following example of a local

nonprofit organization's attempt to undertake a major community improvement project.

A wealthy local resident of St. Helens, Oregon (pop. 7,365) wished to make a significant donation to the community but was initially unclear of the form in which her donation should be made (see Interviews, St. Helens City Attorney). After an extended period of

quiet discussions with local notables and members of the family, the donor decided that she wished to build a library/technology center that would be used widely and would not quickly become obsolete. The City was concerned 1) that the donation not significantly increase the financial liability of its citizens beyond what was

already being expended for library service and 2) that it have control over the facility and the library collection. The donor was concerned that 1) she receive

a tax advantage from her donation, 2) that she have as

much control as possible in constructing the kind of

facility that embodied her vision, 3) that she have maximum freedom from various public constraints

(such as contracting, purchasing, and hiring of

consultants) which might decrease the amount and

quality of facility that could be purchased with her

donation, and 4) that the facility be maintained, staffed, and operated at a level commensurate with the

technological sophistication it would house. As

discussions progressed the vision gradually began to

unfold and institutional mechanisms for implementation created. No overall boiler plate existed, however

existing templates were used for various pieces of the

project. In the final stages of discussion, an agreement was reached that included the following key provisions that were incorporated into formal contractual documents (City of St. Helens).

1. A 501.C.3. foundation, called The Columbia Foundation, was created by the donor to receive her gift and to take responsibility for constructing the "Columbia Center." The Foundation is governed by a five

person board of directors, two of whom are selected by the family, two selected by the city, and a fifth chosen by the other four members. The formation of the Columbia Foundation gave the donor the tax

advantages she desired and considerable freedom in the construction of the Columbia Center

facility.

2. The City leased two acres of city park land to the Columbia Foundation for the construction of the Columbia Center. The Center consisted of a

library, a computer technology center, and common meeting rooms.

3. The City agreed to lease the Columbia Center, once constructed, for forty years from the Columbia Foundation.

4. The Columbia Foundation agreed to sublease the computer technology portion of the building back from the

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City, leaving the City responsible for

managing the library and the common

meeting rooms.

5. The City agreed to support the library portion of the Center at the same dollar and FTE level that it was

spending for library support at the time of the contractual agreement.

6. The Foundation agreed to create a Columbia Foundation Collection for the library, the chief venue for

purchasing new materials for the

library. The Columbia collection is

open to general circulation on the same basis as other materials

purchased by the city. However, The Foundation retains the right to

approve the removal of materials from the Collection, except for decisions based on "reasonable wear."

There are several features of the above

agreement which reflect the significant influence of our

constitutional legacy. First, the agreement is achieved

through conventional legal venues, starting with the formation of the 501.C.3. Columbia Foundation, and

ending with The Ground Lease Agreement, the Columbia Center Agreement and Lease, and the Sublease Agreement between the City of St. Helens and the Columbia Foundation. Second, the Columbia Center

Agreement and Lease reflect significant concern for

public accountability on the part of public officials and the entity they represent. While the City of St. Helens and its public officials maintained an arms-length relationship to the Columbia Foundation during the

process of constructing the Columbia Center, the Lease

agreement requires the Foundation to turn the building over under warranty from the contractor for one year, holds the Foundation liable for all unpaid bills, requires that library materials purchased by the Columbia

Foundation be approved by the library staff, and gives the City the authority to reject any donations or grants

given to the Foundation during the 40 year lease period.

Perhaps the most surprising evidence of the

normative influence of our constitutional legacy is the

concern for censorship of library material. The donor

family was especially worried that materials purchased

by the Foundation would not be accepted or would be

removed for reasons of content. The Foundation took

two steps to meet these concerns in its negotiations with

the City. First, the Foundation succeeded in getting the

City to adopt the American Library Association's

Library Bill of Rights, which interprets any content based exclusion of materials from public libraries as a violation of the First Amendment (Morgan, 1993). Second, in its formal lease agreement with the City, the Foundation included a provision which requires its

approval for removal of materials from the library collection which have been purchased by the Foundation. It is surprising that a nonprofit foundation would express this much sensitivity to freedom of

speech issues in negotiating with a public entity. After

examining all of the legal provisions of the various documents governing the relationship between the City of St. Helens and the Columbia Foundation, it is difficult to distinguish the two entities when it comes to

questions of public accountability. Of course, that is one of the chief concerns of the nonprofit sector as efforts are made to devolve responsibility for a variety of traditional government services, especially through block grant provisions. While this one case does not a conclusion make, it at least illustrates the powerful normative influence of our legal legacy in shaping the boundaries of action and the terms of discourse between the public and nonprofit/private sectors. As leading scholars on the growth of the nonprofit sector have

demonstrated, the state has played the key role in the transformation of our nonprofit institutions (Hall, 1992; Smith & Lipsky, 1993). Hall (1992) describes how social elites used the legal instrumentalities of state and local governments in the post civil war period to cultivate the social norms of stewardship and private responsibility for the public good. By the turn of the

century, this legacy had become deeply institutionalized in our tax and corporate law codes.

PART III: BUREAUCRACY - THE DOMINANT

SOCIAL DOMAIN FOR INSTITUTIONALIZING OUR CONSTITUTIONAL LEGACY

Clearly, administrative practice is many things. Much like the proverbial blind men attempting to

describe an elephant, there are many parts that are

necessary to understand the whole. For some students, the essential core of the administrative process consists of the organizational elements of control which can be

manipulated to prevent agents and clients alike from

being viewed as instrumental and interchangeable parts in a causal chain of inhuman domination. For others, the keys that open the secrets of administrative practice are the constellation of political interests which are

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constantly seeking to influence the instruments of administrative control and the ends these instruments serve. For still others, the truth is to be found in the

larger paradigmatic forces in our postmodern world which have undermined all structures of authority, thus

leaving individuals and social entities free to create their own structures of meaning. For each of these

explanatory approaches, there are those who view the

glass as half full, while others view the glass as half

empty. For example, some organizational theorists see an opportunity to use the instrumentalities of

organizational control to enhance individual autonomy, identity, and self-worth, while others see this as a

fatally flawed enterprise. Some who view the world

through a political prism see hopeless gridlock and co

optation, while others see opportunities for new

beginnings. A similar bifurcation exists among those who emphasize the transformational influences of the

post-modern world. There are those who see almost endless liberating possibilities, while there are others who see decline and chaos. As is the case with blind men seeking to describe an elephant, it is only possible to assemble a portrait of the whole when each

participant recognizes that their perspective is partial. Even when this occurs, however, we may have missed the genetic identity that give elephants and bureaucracies their distinguishing characteristics as a

species. In Part II, I argued that the genetic identity (in Aristotle's phrase, arete') of American administrative

practice is to be found in our constitutional legacy. In this final section I wish to argue that administrative

practice is the dominant social domain for

institutionalizing this legacy. I am using the term "institutionalization" in a manner similar to the process described by Selznick in the Moral Community} It is the intermediate stage between organizations and

community where "orderly, stable, socially integrated patterns" emerge

out of unstable, loosely organized, or

narrowly technical activities ...

[Institutions, it is said, "fix processes that are essentially dynamic" ... This

fixing legitimizes and thereby establishes social groupings. The

starting mechanism is often a formal

act, such as the adoption of a rule or statute. To be effective, however, the enactment must build upon preexisting resources of regularity and

legitimacy and must lead to a new

history of consistent conduct and

supportive belief. Institutions are

established, not by decree alone, but as a result of being bound into the fabric of social life. Even so weighty an enactment as the United States Constitution cannot be understood

apart from the legal and political history that precede it, the interpretive gloss given it by the courts, and the role it has played in American history and consciousness. The formal acts of

adoption and ratification were only part of a more complex, more open ended process of institution-building (Selznick, 1992, p. 232).

The open-ended character of our constitutional

legacy not only applies to the process of its adoption and ratification. It also applies equally to the on-going interpretative process of making the constitution a

living legacy. The opportunity and necessity for doing so is provided by the need to transform vague and

ambiguous legislative statutes into operational policy and the need to transform vague and ambiguous administrative policy into operational procedures. Neoinstitutionalists have used similar kinds of

metaphors to describe this process of creating social

scripts that, once created, "owe their survival to

relatively self-activating social processes" (Jepperson, 1991, p. 145): the creation of social "production systems" (Fararo & Skvoretz, 1986) or "enabling structures" (Berger & Luckmann, 1967) or

"performance scripts" (Giddens, 1984). There are at least two reasons why administrative practice will continue to play a central role in this on-going open ended process of institution-building and social construction of reality. The first has to do with the

impact of administrative work on the objective conditions of human existence and, thereby, on our collective consciousness. The second has to do with the

position administrative practice occupies in our

institution-building process.

The devolution of government downward to state and local levels and outward to the private and

nonprofit sectors is not likely to measurably reduce the role the administrative process plays in our process of

governance. It will only shift the jurisdictional locus of

responsibility from federal to local government administrators who will be faced with the same amount and kind of administrative discretion that makes

governance itself problematic. Since administrative discretion mirrors the kinds of discretion created by the

larger policy process (Morgan, 1987), career

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administrators will continue to play a central role in

shaping the institutional framework for regulating, distributing, and redistributing the scarce resources of communal life. Even as the federal government withdraws from the policy domain, the politics of

scarcity and regulation will make the lives of administrators at the local level even more important, if not more intractable.

In addition to the central position that administrative practice will continue to play in our

policy process, the impact of individual administrators on the process of institution-building is likely to become even more significant in the future than it ever has been in the past. This is especially the case for those who envision a fundamental transformation in our

processes and institutions of governance. From what we have learned about the impact of postmodernity on the lives of our citizens, we know that time, interest, and level of commitment to governance issues and processes has either waned or, when present, has taken an

oppositional stance to the role of government in the

processes of institution-building. Operating in this

atmosphere of indifference and opposition, career

administrators by virtue of commitment, time, and

position will play a central role in sustaining, if not

initiating, the processes of transforming and rebuilding our institutions in partnership with the citizenry (Fox &

Miller, 1995).

The increasingly important role that career

administrators are likely to play in shaping our social institutions at the local level raises some obvious and

well-placed concerns: career administrators have

organizational control over important instruments of

domination; some administrators may be motivated by the same narrow personal and organizational interests that characterize much of contemporary organizational life; public bureaucracies can become the functional

agents of oppressive institutional norms. These concerns are rendered even more problematic by a

neoinstitutional framework of analysis which

emphasizes taken-for-granted scripts over deliberate

political and social action (DiMaggio & Powell, 1991,

pp. 15-19). Thus, there are two problems posed by neoinstitutionalism in addressing institutionalized forms

of oppression. First, there is no transcendent standard

against which to determine whether a socially constructed script is oppressive. Second, political action

is downplayed as an effective instrument of long-term social change.

There are several responses to these concerns.

First, neoinstitutionalism is far more open to corrective

action than older forms of institutional analysis which narrows our constitutional legacy to black letter law and to the words and intentions of the framers. The

emphasis of neoinstitutional on the openness of social

systems to outside change and to the creative and

generative energy of dynamic tensions within and

among institutions provides wide latitude for reforming oppressive practices (Friedland & Alford, 1991; Jepperson & Meyer, 1991).

A more direct response to the concern that neoinstitutionlism overly legitimates the status quo is to be found in the constituent elements that compose our constitutional legacy. In this paper I have identified our

legacy with the three central claims that make democratic governance both possible and problematic: responsiveness to majority rule, preserving minority rights, and energetic and efficient administration of the affairs the state. The need constantly to balance and rebalance the tensions among these claims creates a

"politics of institutional contradiction" (Friedland &

Alford, 1991, pp. 256) which serves as a internal

gyroscope that stimulates critical reflection on social institutions. The constant stimulation of such reflection

mitigates against narrowly oppressive institutional

practices from going unchallenged. The day to day activities of career administrators place them at the center of these contradictory tensions and enable them to play a critical role in determining how our on-going institution-building process balances the competing claims of majority rule with the two-fold concern for

effectively managed governance institutions and

equitable distribution of communal resources and

application of its legal norms. In carrying out this role, career administrators are uniquely situated to perform a critical educative function that deTocqueville observed was traditionally performed by the American civil jury system.

[I]t teaches every man not to recoil before the responsibility of his own

actions and impresses him with the

manly confidences without which no

political virtue can exist. It invests each citizen with a kind of

magistracy; it makes them all feel the duties which they are bound to

discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their

own, it rubs off that private selfishness which is the rust of

society (deTocqueville, 1945, p. 295).

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NOTE

1 Selznick's earlier work is frequently cited as an

example of "old institutionalism" because of its focus on instrumental and self-conscious political action in the creation of meaningful, significant, and enduring social

patterns (DiMaggio & Powell, 1991, pp. 12, 16).

Seinick's more recent work, however, shares more in common with the neoinstiutionist emphasis on the

importance of "taken-for-granted" scripts over self

consciously directed political and social action.

REFERENCES

Berger, Peter L. & Luckmann, Thomas. (1967). The Social Construction of Reality. New York:

Doubleday. Carter, Lief. (1979). Reason in Law. Boston, MA:

Little, Brown, & Co.

City of St. Helens, Oregon. (1995, June 7). Columbia Center Agreement and Lease; Sublease

Agreement with Columbia Foundation; Groundlease Agreement.

Cooper, Philip. (1983). Public Law and Public Admin istration. Palo Alto, CA: Mayfield Publishing

Company.

Davis, Kenneth C. (1979). Administrative Law Treatise

(2nd edition). San Diego, CA: (self-published). deTocqueville, Alexis. (1945). In Philip Bradley (Ed.),

Democracy in America (volume I). New York, NY: Alfred A. Knopf.

DiMaggio, P.J. & Powell, Walter W. (1991). Introduc tion. In W.W. Powell & P.J. DiMaggio (Eds.), The New Institutionalism in Organizational Analysis. Chicago, IL: The University of

Chicago Press.

Fararo, Thomas J. & Skvoretz, John. (1986). Action and institution, network and function: The

cybernetic concept of social structure.

Sociological Forum, /, 219-250.

Fox, Charles J. & Miller, Hugh T. (1995). Postmodern Public Administration: Toward Discourse.

Newbury Park, CA: Sage Publications, Inc.

Friedland, Roger & Alford, Robert R. (1991). Bringing society back: Symbols, practices, and institutional contradictions. In W.W. Powell & P. J. DiMaggio (Eds.), The New Instititonalism in Organizational Analysis. Chicago, IL: The

University of Chicago Press. Gideon v. Wainwright. (1963). 372 U.S. 335.

Giddens, Anthony. (1984). The Constitution of Society. Berkeley, CA: The University of California Press.

Goldberg v. Kelly. (1970). 397 U.S. 254.

Hall, Peter D. (1992). Inventing the Nonprofit Sector.

Baltimore, MD: John's Hopkins University Press.

Interviews with Peter Linden, City Attorney of St.

Helens, Oregon. (1996, February). Jepperson R. (1991). Institutions, institutional effects,

and institutionalism. In W.W. Powell & P.J.

DiMaggio (Eds.), The New Instititonalism in

Organizational Analysis. Chicago, IL: The

University of Chicago Press.

Jepperson R. & Meyer, J.W. (1991). The public order and the construction of formal organizations. In W.W. Powell & P.J. DiMaggio (Eds.), The

New Instititonalism in Organizational Analysis. Chicago, IL: The University of Chicago Press.

Levi, Leonard. (1949). Introduction to Legal Reasoning. Chicago, IL: University of Chicago Press.

Lewis, Anthony. (1966). Gideon's Trumpet. New York, NY: Vintage.

Miranda v. Arizona. (1966). 384 U.S. 436.

Morgan, Douglas F. (1993). Madonna's sex: Constitu tional stewardship or administrative fantasies? Administrative Theory and Praxis, 75(2), 37 51.

_. (1990). Administrative phronesis: Discretion and the problem of administrative legitimacy in our constitutional system. In H.D. Kass & B. Catron (Eds.), Images and Identities in Public Administration. Newbury Park, CA: Sage.

_. (1987). Varieties of administrative abuse: Some reflections on ethics and discretion. Administration & Society, 19, 267-284.

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Schaar, John H. (1964). Some ways of thinking about

equality. Journal of Politics, 26, 867-895.

Selznick, Philip. (1992). The Moral Commonwealth: Social Theory and the Promise of Community. Berkeley, CA: University of California Press.

Salamon, Lester. (1992). America's Non Profit Sector: A Primer. Baltimore, MD: John's Hopkins University Foundation Center.

Smith, S.R. & Lipsky, M. (1993). Nonprofits for Hire: The Welfare State in the Age of Contracting. Cambridge, MA: Harvard University Press.

Douglas Morgan is professor of Public Administration and Director of the Executive Leadership Institute at Portland State University. His articles on administrative ethics and discretion have appeared in a variety of journals and article collections including Public Administration Review, Administration and Society, Handbook on Administrative Ethics, Ethics in Public Administration, and Ethical Frontiers in Public Management.

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