Hail to the Pencil Pusher

October 5, 2015 8:20 PM

Hail to the Pencil Pusher — American Bureaucracy's Long and Useful History

Nineteenth-century America was a place full of hazards. Disease, political oppression, imperialist warfare, poor living conditions, and hard manual labor took their toll, as they still do. But some dangers were peculiar to the era-among them, exploding steamboats.

Between 1825 and 1830, 273 people died in such accidents. DeBow's Review (1848) noted 233 cases of "bursting boilers," "collapsing flues," and other breakdowns, which could cause massive damage. In his 1833 State of the Union address, President Andrew Jackson noted the "many distressing accidents which have of late occurred . . . . by the use of steam power." But he didn't simply mourn, instead arguing that the problem demanded "the immediate and unremitting attention of the constituted authorities of the country." He sought criminal penalties to prevent what he saw as the negligence of carriers.

But the problem was so severe that Congress eventually decided tackle it administratively. Criminalizing bad behavior wasn't enough; for the good of individual lives and the larger economy, the government would take positive steps to prevent explosions. Under the Steamboat Act of 1852, Congress mandated standards for boiler pressure and testing. Pilots and engineers would be federally licensed. And government inspectors could enforce these rules.

[...]

To some observers, this situation is fundamentally at loggerheads with the Constitution. The problem isn't this or that agency; it is the administrative state itself, an alien import from European collectivism, which destroyed the laissez-faire liberty Americans supposedly enjoyed in the nineteenth century. Today, opposition to the administrative state unites everyone from George Will, who says the Affordable Care Act "serves principally to expand the administrative state's unfettered discretion," to Supreme Court Justice Clarence Thomas, who sees the administrative state as evidence of a "belief that bureaucrats might more effectively govern the country than the American people," to Senator Mike Lee, Glenn Beck, and the Tea Party broadly.

But a new wave of legal history is overturning the narrative of paradise lost. In Jerry Mashaw's Creating The Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012), we see that the early U.S. government was both far more bureaucratic and expansive than partisans of deregulation assert. And Daniel Ernst, in Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940 (2014), attacks the alien-import thesis, arguing that modern American regulatory agencies were justified by domestic legal norms.

Indeed, this scholarship does more than just show how far back the administrative state goes in American history. It shows that the practices and institutions of bureaucrats have not assaulted our Constitutional liberties but rather have helped define and expand our very notion of liberty. This emergent school of thought, known as "administrative constitutionalism," documents how our institutions, in their everyday dealings with the public, provide the basis for the liberties courts end up adopting and ratifying.

posted by tonycpsu (23 comments total)

Thanks for the long pull-quote. This winds up being much more interesting than I thought it'd be at first glance.
posted by brennen at 9:00 PM on October 5, 2015 [4 favorites]

The accident that almost gave us a President Magnum.
posted by clavdivs at 9:12 PM on October 5, 2015 [2 favorites]

Which pencil pushers gave us such wonderful oddities as the 1472-day inspection.
posted by pjern at 9:24 PM on October 5, 2015 [1 favorite]

Fascinating article! It's so easy to get sucked into false ideas of the past as a minimal-state libertarian fantasy.
posted by TheophileEscargot at 10:19 PM on October 5, 2015 [2 favorites]

Looking up the Steamboat Act of 1852 on Wikipedia led me to this section in the article about the Lucy Walker steamboat disaster in 1844:

The high death toll of steamboat disasters like the Lucy Walker sparked public concern, litigation, and Congressional debates about insurance issues, compensation of victims, responsibilities of vessel owners and masters, and need for state or federal legislation. There were ad hoc local and Congressional investigations of individual steamboat disasters, especially those involving boiler explosions. The general public was concerned that steamboat racing contributed to these disasters, but many steamboat captains and passengers were thrilled by the excitement and gambling accompanying the contests.

Much of the problem was ignorance by steamboat operators. In these early days, the physics and mechanics of boiler explosions was not well understood. Designers did not know the tensile, compressive, or shear strengths of metals. Engineers did not know the effects of scaling, mud, etc. on feedwater pumps. Safety valves could be overloaded, and there were few pressure gauges. Too low water levels in boilers led to overheated boiler walls. Sometimes owners were simply too frugal or greedy to pay for good equipment or competent employees.

[...]

Subsequent legislation led to the establishment of the Steamboat Inspection Service and eventually a real reduction in fatal episodes. Among the first government sponsorship for pure scientific research was a grant to the Franklin Institute of Philadelphia for the study of causes of boiler explosions.

And "The Horrific Accident That Created the Regulatory State":

Other legislation went even further. Most notable was the creation of the Steamboat Inspection Service, the first federal regulatory agency. It granted and revoked boat licenses; required that all boilers be checked regularly; and licensed pilots and engineers. When combined with industry self-correction, such as the “doctor” (a small pump that brought water into boilers when the paddlewheels weren’t turning), nighttime running lights, life preservers and fire hoses, steamboat travel became reasonably safe by the mid-1850s.

It's probably difficult to separate the effects of government inspections from the improved knowledge of "the physics and mechanics of boiler explosions." And we can't run any counterfactual histories to see whether inspections without scientific advances, or vice-versa, would do more to reduce steamboat disasters. We can measure the number of boats denied a license for failing the safety standards, and the number of accidents that occurred anyway, but not the number which met those standards in order to get a license, nor the number of disasters prevented by "nighttime running lights, life preservers and fire hoses."
posted by Rangi at 11:16 PM on October 5, 2015 [3 favorites]

t's so easy to get sucked into false ideas of the past as a minimal-state libertarian fantasy.

Or even the more recent past.

"In the 1950s and 1960s, there were on average 92 residents for every Federal worker. In the 1980s and 1990s, there were on average 106 resi­dents for every Federal worker. By 2011, the ratio had increased to 145 residents for every Federal worker. Since the 1950s and 1960s, the U.S. population increased by 76 percent, the private sector workforce surged 133 percent, while the size of the Federal workforce rose just 11 per­ cent. Relative to the private sector, the Federal workforce is less than half the size it was back in the 1950s and 1960s. The picture that emerges is one of a Federal civilian workforce whose size has significantly shrunk com­ pared to the size of the overall U.S. population, the private sector workforce, and the size of Federal expenditures." (emphasis added)

Not yet small enough to drag into the bathroom and drown in a bathtub, but a healthy loss of weight after the gluttony of the Great Society.
posted by three blind mice at 12:45 AM on October 6, 2015 [4 favorites]

Looks like I've got more books to put on the list.

I've heard arguments that the American revolution in essentially a bureaucratic revolution, of the traditional administration of local gentry against distant imperial control.

The mythology of the heroic American individual dies hard.
posted by Ray Walston, Luck Dragon at 2:17 AM on October 6, 2015

Not yet small enough to drag into the bathroom and drown in a bathtub, but a healthy loss of weight after the gluttony of the Great Society.

I'm trying to work out whether your use of "drag into the bathroom and drown in a bathtub" is used approvingly as you describe the great society as gluttony, or whether the murderous and nihilistic imagery is used because destroying the effective arm of the will of the people would be a crime against both democracy and the American people and replacing it with a feudal oligarchy.
posted by Francis at 3:19 AM on October 6, 2015 [6 favorites]

As much as I personally loathe my interactions with administrative structure, I am usually impressed with how effective and useful it is to have this structure in place. It's wasteful in places and absurd in others, but it is consistently useful.

It's a bit tangential, but reading about the American experience reminds me of a thrilling book that I read the first few chapters of before my kids beat my will to read out of me: Iron Kingdom: The Rise and Downfall of Prussia 1600-1947. I never really got taught much European history in school, so it was really interesting to see how important the administrative structure of the Prussian state was. This seems to be a pretty common experience - it's all very well and good to have your fancypants Great Elector types going out kicking arse and taking numbers, but eventually your grandkids are going to have to work out where the hell all money is and maybe like do some double entry bookkeeping?

(Also I would totally recommend Iron Kingdom to any other parent desperately in need of a quiet nap. Five stars).
posted by langtonsant at 3:40 AM on October 6, 2015 [1 favorite]

It would be really nice if people like George Will or Clarence Thomas had the honesty to stop feeding the cartoonish vision Americans have of themselves.

Responsible people have the maturity to take care of themselves and recognize that they have to do their chores, pick up after themselves, and do things the don't like (such as change diapers or take out the trash). Societies are no different in this regard.

Instead, we politely listen to some mythology about Davy Crocket or some other nonsense. We waste our time with some foolishness about a pristine 'murka that has only been corrupted by effete European ideas like government.

"The government that governs best is the government that governs least" has got to be one of the most nonsensical phrases that we have to listen to just to be polite: no one blasts it away once and for all.

As an aside, this sort of mythical thinking also informs the debate about guns.

Why can't you just dismiss stupid ideas like this and just move along? I know, "sea-lioning" and all that, but where are the grown-ups? Really, people.

I know that it's all really just easier than thinking, but what's the point of having a brain if you aren't going to think?
posted by nothing.especially.clever at 5:10 AM on October 6, 2015 [5 favorites]

I know that it's all really just easier than thinking, but what's the point of having a brain if you aren't going to think?

Power.
posted by lalochezia at 6:09 AM on October 6, 2015 [1 favorite]

Today, opposition to the administrative state unites everyone from George Will, who says the Affordable Care Act "serves principally to expand the administrative state's unfettered discretion," to Supreme Court Justice Clarence Thomas, who sees the administrative state as evidence of a "belief that bureaucrats might more effectively govern the country than the American people," to Senator Mike Lee, Glenn Beck, and the Tea Party broadly.

Everyone from George Will to Clarence Thomas is about 25 people at the CATO Institute fundraising dinner I'd wager.
posted by srboisvert at 6:42 AM on October 6, 2015 [2 favorites]

"I like to pay taxes. With them, I buy civilization." -- Oliver Wendell Holmes Jr.
posted by sneebler at 7:24 AM on October 6, 2015

"I like to pay taxes. With them, I buy civilization." -- Oliver Wendell Holmes Jr.

I say this to myself every Tuesday morning -- when the refuse and recyclables I put out on the treelawn miraculously disappear.

Great stuff, Tonycpsu, thanks for posting.
 
posted by Herodios at 7:38 AM on October 6, 2015

What and unexpectedly interesting topic... and a nice slap in the face to the various pseudo-originalists polluting our discourse nowadays.

Thanks, tonycpsu!
posted by mondo dentro at 7:49 AM on October 6, 2015

The accident that almost gave us a President Magnum.

President Tyler asked himself, "do I feel lucky?"

Well do ya -- punk?

Actually, it would have been President Mangum. But the Wiccuhpeedia article about him also misspelled it twice.
posted by Herodios at 7:51 AM on October 6, 2015

Which pencil pushers gave us such wonderful oddities as the 1472-day inspection.

This has the aroma not so much of bureaucracy, as of politics. Horse-trading and compromise in legislatures is the more usual source of these oddities. Bureaucrats are simply charged with managing and enforcing them.
 
posted by Herodios at 8:02 AM on October 6, 2015 [1 favorite]

1472 days is 4 years and 12 days. If I had to guess, I bet someone decided that locomotives needed to be inspected once every four service-years and then tacked on a two week grace period (excepting Sundays).
posted by burden at 8:25 AM on October 6, 2015 [1 favorite]

The accident that almost gave us a President Magnum.

"President Magnum what?"

"oh, no first name, it's just 'Magnum'"
posted by taromsn at 10:10 AM on October 6, 2015

Which pencil pushers gave us such wonderful oddities as the 1472-day inspection.

the FRA "year" is 368 days, 1472 days is 4 FRA "years"

the process that that was decided with is Here. (and a fascinating read)
posted by Dr. Twist at 10:59 AM on October 6, 2015

Why did the 1978 regulations specify 48 calendar months?

Asking the 'why' of an old regulation isn't wise; yonder lies madness.

When I last wrenched on a steam locomotive, back in 1984 or so, the 4-year inspection was sacrosanct: I suspect it was taking into account the fact that there were almost no steam locomotives in daily service anywhere in the US, and it was a lengthening of the basic FRA annual inspections.

Under the old rules, 'service days' were counted in monthly increments, IIRC. If you fired up a locomotive on January 30th, and cooled her down on February 1st, you just used up two months' worth of service days. You used to be able to get a 'flue time extension' from an FRA inspector based on removing a couple of tubes from the bottom of the boiler barrel and maybe some random number of staybolt caps, so the inspector could look inside the boiler and assess its condition. Pass a hydro test and the loco was good to go for some further length of time. After the 1472 service days, though, the tubes all had to come out.
posted by pjern at 1:11 PM on October 6, 2015 [1 favorite]

When I last wrenched on a steam locomotive

More paragraphs about this, please.
posted by brennen at 3:41 PM on October 6, 2015

More paragraphs about this, please.

Start here.
posted by pjern at 4:57 PM on October 6, 2015 [2 favorites]