The Confederate Roots of the Administrative State

President Woodrow Wilson, c. 1913 (Library of Congress)
Bureaucratic, unelected, managerial government in America had a surprising birthplace: the Confederate States of America.

NRPLUS MEMBER ARTICLE T he administrative state has grown explosively in America over the past century, almost entirely without roots in our Constitution. Bureaucratic, unelected, managerial government in America had a surprising birthplace: the Confederate States of America. It would ultimately be imported into the theory and practice of the federal government by a son of the Confederacy: Woodrow Wilson.

The foundations of the Confederacy’s pioneering efforts in the field of democratically unaccountable big-government federal bureaucracy were laid in the design of the Confederate constitution. Confederate bureaucracy expanded significantly amid the stresses of a war for the survival of secession. It far outstripped the wartime expansion of government undertaken by the Union — creating, as Wilson himself would write, “a power centralized beyond example in the history of America.” Beyond example, at least, until Wilson’s own presidency.

The Confederate Constitution

The constitution of the Confederacy was drafted hastily in the spring of 1861 at the temporary capital of Montgomery, Ala., by a provisional committee of the Confederate Congress. The committee, chaired by South Carolina fire-eater Robert Barnwell Rhett, was dominated by four Georgians with strong constitutional theories: Vice President Alexander Hamilton Stephens, Secretary of State Robert Toombs, Provisional Congress president Howell Cobb, and Cobb’s brother, Thomas R.R. Cobb.

Stephens and Toombs were ex-Whigs who had served as U.S. senators. Stephens was a friend of Abraham Lincoln, a somewhat reluctant secessionist, and perhaps the most brilliant thinker among Confederate statesmen, but also a dogmatic pro-slavery zealot who memorably described slavery as the “cornerstone” of the Confederacy. Toombs was a particular admirer of the British parliamentary system. The Cobbs were Democrats. Howell had been speaker of the House, Treasury secretary under James Buchanan, and governor of Georgia, and Thomas (who was later killed at Fredericksburg) wrote a leading treatise on the law of slavery.

Starting with the existing U.S. Constitution as their model, they set out with three goals in making revisions. One, of course, was to fortify the legal status of slavery. The second was to address other specific, longstanding grievances of the Southern Democrats who made up the bulk of secessionist leaders, such as restrictions on tariffs and limits to federal spending on infrastructure projects. The third was to make what they saw as improvements on the original constitutional design. The results, as H.C. and John T. Nixon observed in a 1955 study of the Confederate Constitution, “foreshadowed certain teachings and preferences of Woodrow Wilson. . . . It would seem from their constitutional work that they had read or perhaps written [Wilson’s] subsequent study, Congressional Government. . .”

The choices the Confederate framers made on this third front were not all individually bad ones, but collectively they systematically eroded the Constitution’s design of separation of powers and popular sovereignty:

  • Limiting the president to a single six-year term with no prospect of reelection.
  • Explicitly permitting the president to remove “the principal officer in each of the Executive Departments” and diplomats at will, but “all other civil officers of the Executive Departments may be removed . . . by the President” only “when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty,” and requiring that such removals be reported to the Senate “together with the reasons therefor.”
  • Authorizing Congress to give the heads of executive departments a non-voting seat on the House floor, in imitation of British Cabinet practice.
  • Barring Congress from appropriating funds (with a few limited exceptions) not requested by the president or by the heads of executive departments.
  • A line-item veto and appropriations limited to single-subject bills.

The net result? First, the Confederates weakened their legislature and strengthened their executive branch by restricting the power of the purse. Second, they diluted the president’s accountability to voters: Longer presidential terms without reelection meant that nobody ever had to answer to the people for presidential decisions.

Third, while strengthening the executive and providing explicitly for executive departments, the Confederate restrictions on removals watered down presidential control of the executive branch. The limitations on removing civil servants introduced, for the first time in America, a system of bureaucrats who could not be fired at will by elected officials. It was a direct assault on what is now known as the unitary executive, under which all executive power answers to the president. That theory still remained ascendant in the Union under Abraham Lincoln, and would form Andrew Johnson’s successful defense against impeachment later in the decade for firing his secretary of war. Today, a preference for a Confederate-style executive branch over a Lincoln-style unitary executive is received wisdom among progressives.

There were multiple reasons why the Confederates imposed such a restriction. In the 1830s, Henry Clay and Daniel Webster had inveighed against Andrew Jackson’s “spoils system” and his removal of the head of the Second Bank of the United States. Toombs and Stephens, who had cut their teeth in politics as Whigs, still subscribed to the Webster/Clay “Whig theory of the removal power” under which the president could not remove Senate-confirmed officials without Senate consent, and they enshrined it in law.

The spoils system more broadly had proven unpopular in the South during the years after Jackson. As a former head of the Confederate Bureau of War reflected in 1885, “the Confederate Constitution was designed . . . to cut up patronage-spoils appointments . . . by the roots.” In part, this was the legacy of mistrust of northern influence on appointments, particularly postmasters. The Post Office was by far the largest class of civilian federal employees in 1860. The 1830s had seen national fights over the use of the mails to inundate the South with abolitionist pamphlets, the net result of which was that Congress would not bar such mailings, but local postmasters could in practice obstruct their delivery. So, the postmasters mattered.

The advantage or disadvantage — depending on your perspective — of a ‘deep state’ of permanent civil servants chosen by competitive examinations and not removable without cause is that they develop a permanent perspective of their own, and are resistant to changes of direction. That perspective would naturally reflect the prevailing mores of the educated class of society — which in the antebellum South meant the planters. Insulation from politics would ensure that the permanent civil-service class could not be dislodged by an election such as Lincoln’s. Fear of Lincoln appointments and what they could do to destabilize Southern slavery was one of the chief reasons why secession followed immediately upon his election, rather than awaiting any policy move by Lincoln in office.

The other provision that eroded the separation of powers was the allowance for placing cabinet members on the House floor, the direct result of Toombs’ admiration of British practice. This never got enacted in legislation; it was tied up in a dispute over Senate efforts to saddle Jefferson Davis with a professional general staff, which he could have used.

The floor-seats idea would be resurrected by Woodrow Wilson in his academic writings as early as 1879. As Wilson described the Confederate constitutional rule, it gave the cabinet “the privilege of the initiative in legislation” and was adopted “in order that Congress and the Executive might act in closer harmony and easier co-operation than had been possible in the old Union.” Wilson approved of the Confederate innovations because he scorned the U.S. Constitution’s separation of powers. It was, he wrote, “manifestly a radical defect of our federal system that it parcels out power and confuses responsibility as it does. The main purpose of the Convention of 1787 seems to have been to accomplish a grievous mistake.” In Wilson’s view, a complete inversion of the theories of John Adams and James Madison, “You cannot compound a successful government out of antagonisms.”

Stars and Bureaus

The Confederacy was born in war, lived in war, and died in war. It was, moreover, a war in which its manpower and especially its economy and industry were massively overmatched by the Union. The result was that its government, in practice, greatly expanded its constitution’s plan to empower executive administration, and blew through its founders’ professed scruples about centralized power. As Wilson wrote, it became a “necessity that the action of the war should be ordered . . . by executive authority, central, efficient, unquestionable.”

Historians debate how much the rise of the Confederate administrative state and Confederate control of the economy broke with pre-existing Southern ideology as opposed to exposing its existing fissures. Bruce Levine, in The Fall of the House of Dixie, opined that “many of the [Confederate] regime’s policies . . . violated political, social, and cultural imperatives and taboos that over the decades had become central to southern white identity.” But Richard Franklin Bensel, in his book Yankee Leviathan, noted that “southern mobilization was far more state-centered and coordinated than its northern counterpart” and argued that “the all-encompassing economic and social controls of the Confederacy were in fact so extensive that they call into question standard interpretations of southern opposition to the expansion of federal power in both the antebellum and post-Reconstruction periods.” One innovation of the Confederacy was a Department of Justice, a decade before the federal government created one (ironically, to crush the Ku Klux Klan); in fact, no country in the English-speaking world had such a department in 1861.

The Confederate civil service was enormous: 70,000 civilian employees, 57,000 of them in the War Department. As one historian wrote, “country and city teemed with officious agents of the new bureaucracy who sometimes impressed into service what they could not buy.” A decade earlier, the entire federal government of the United States employed only 4,300 people outside of the military and the Post Office. The Union itself expanded to 100,000 civilian employees, but covering a vastly larger territory with a much larger population.

One major engine of centralized economic controls in Confederate government came from the first military draft in American history, instituted in April 1862 (a year before conscription came to the Union). Unlike the Union’s conscription law, the Confederate draft contained occupational exemptions — most notoriously, the rule exempting one overseer for every plantation with 20 or more slaves. Over the course of the war, roughly 75 percent of the Confederacy’s white men of military age served, making occupational exemptions the exception rather than the rule. The sheer scale of the draft also ensured a steady stream of men willing to serve in the bureaucracy itself rather than at the front. As with many of the powers granted to the Confederate executive, the draft exemptions gave broad discretion to the bureaucracy.

The government’s regulation of exemptions was an enormous lever of control over the allocation of scarce manpower across the civilian economy. Manpower policy was regulated by the Bureau of Conscription, with results that Bensel described as “administratively and substantively more statist than the Union because Confederate controls on the allocation of labor were both implemented by a more insulated bureaucracy, and more encompassing.” The Confederate government used that leverage to dictate everything from profit margins on government contracts to maximum prices for farm commodities and for war supplies such as wool, leather, and shoes. Favor fell on factories that made the Confederate quartermasters happy.

The South’s lack of pre-existing munitions and other war-making industries meant that many of those industries were directly run by the War and Navy departments rather than by private businesses, as in the North. It nationalized the telegraph (run by hundreds of War Department bureaucrats) and pervasively controlled railroad schedules and traffic. The Confederate bureaucracy imposed far more sweeping price controls and policies to impress goods and labor into national service than did the Union — including policies that forced plantations to lend slaves to the war effort, over much grumbling by the planters.

All of this meant government by a managerial class tilted towards the same sorts of people one expects to find in any government bureaucracy. Emory Thomas, in his classic study of the Confederate state, The Confederate Nation, observed of the state-run economy:

The relatively small group of men who managed the South’s short-lived economic transformation were hardly entrepreneurs whose acquisitive instincts fit the Yankee stereotype. On the contrary, the South’s war industrialists tended to be “traditional intellectuals” — schoolteachers, natural philosophers, and military scientists — as opposed to “organic intellectuals” — industrial managers, mechanical engineers, and the like.

The Confederacy also imposed wealth taxes to provide for indigent relief, a redistributive policy with no parallel in Lincoln’s tax policy. Agricultural-price controls were imposed not only to feed the army, but to cap the prices of bread and other staple foods to stave off food riots.

Bensel argued that this process fundamentally changed the relationship of the Southern citizen to the state, in ways that Union policies did not:

Confederate expansion [of the state] in the area of property relations reorganized and partly socialized the economic base of the “loyal” society of the South. If the South had won the Civil War, the statist precedents and experience of the conflict might have endured in the Confederate state because they were originally applied to the social base of the nation itself.

The Union’s victory swept away the entire Confederate state apparatus. The ideas behind it, however, would emerge once again during the First World War, when the government pursued centralized “war socialism” run by federal “experts” — under the presidency of Woodrow Wilson.

Son of the Confederacy

Woodrow Wilson was the father of the modern administrative state, and of the theories of a “living constitution” that enable its untrammeled growth. Born in Virginia in 1856, Wilson was a child of the Confederacy, a student and at times an admirer of its governing system, a sharer of many of its worst prejudices, and an apostle of the same theories that animated its administrative innovations. His father was a preacher who delivered sermons offering biblical defenses for slavery and sided with the Confederacy even at the expense of permanently alienating his northern relations. Raised in Virginia, Georgia, and North and South Carolina, Wilson recalled in his youth seeing Jefferson Davis and Robert E. Lee in person. A speaker dedicating the “Silent Sam” Confederate monument at the University of North Carolina during Wilson’s first year as president of the United States recalled:

A year or two ago diplomas were given by our University to all the students who had interrupted their studies to enter the military service of the Confederacy. Mr. Wilson, then President of Princeton University delivered these diplomas. One man only of the Class [that Matriculated in 1862] wearing the Confederate uniform, came forward to receive that highly prized token. It was the humble individual who now addresses you. At the dinner, later in the day, Professor Wilson greeted me with the remark that in many years nothing had so much touched and warmed his heart as the sight of that Confederate uniform.

Wilson as a scholar and politician was eager to remake himself as a national rather than purely Southern figure, even purging his regional accent. In his academic writings, he was critical of secession as a failure and an obstruction of the national project. But he also told the American Historical Association in 1896 that “there is nothing for the Southerner to apologize for in writing Southern history.” Except for his schooling at Princeton, Wilson lived in the South for his first three decades, through the turbulent years of war and Reconstruction. One could spend far more ink on Woodrow Wilson’s racism, but his description of Reconstruction in a 1901 Atlantic article gives a sense of the man who would go on to segregate the entire federal government a dozen years later and screen the pro-Klan film Birth of a Nation at the White House:

An extraordinary and very perilous state of affairs had been created in the South by the sudden and absolute emancipation of the negroes, and it was not strange that the southern legislatures should deem it necessary to take extraordinary steps to guard against the manifest and pressing dangers which it entailed. Here was a vast laboring, landless, homeless class, once slaves, now free; unpracticed in liberty, unschooled in self-control; never sobered by the discipline of self-support, never established in any habit of prudence; excited by a freedom they did not understand, exalted by false hopes; bewildered and without leaders, and yet insolent and aggressive; sick of work, covetous of pleasure — a host of dusky children untimely put out of school . . .

The passage goes on to deplore black-run governments until “at last the whites who were real citizens got control again.” (He wrote worse elsewhere on the topic.) In a later generation, one might ascribe this to being brought up on bad history, but Wilson was 20 years old when Reconstruction ended, and was fresh from writing a multi-volume historical treatise when he penned these lines in a national magazine. A year later, he was named president of Princeton University.

Wilson’s lifelong distaste for Congress is hard to untangle from his bitter hostility towards congressional Reconstruction; his earliest writings complained of the ascendancy of congressional committees and their responsiveness to popular opinion. In his landmark 1887 essay “The Study of Administration,” the Rosetta stone of progressive theories of administrative rule, he asked of administrative agencies, “What, then, is there to prevent? Well, principally, popular sovereignty.”

It is harder for democracy to organize administration than for monarchy. The very completeness of our most cherished political successes in the past embarrasses us. We have enthroned public opinion; and it is forbidden us to hope during its reign for any quick schooling of the sovereign in executive expertness or in the conditions of perfect functional balance in government. The very fact that we have realized popular rule in its fullness has made the task of organizing that rule just so much the more difficult. In order to make any advance at all we must instruct and persuade a multitudinous monarch called public opinion . . .

It was public opinion that Wilson saw as “a clumsy nuisance, a rustic handling delicate machinery,” which should be allowed only to make general policy but not to supervise administration by experts. And he tied the problem with public opinion directly to the diversity of the American public:

And where is this unphilosophical bulk of mankind more multifarious in its composition than in the United States? To know the public mind of this country, one must know the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of negroes. In order to get a footing for new doctrine, one must influence minds cast in every mould of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.

This sort of thing would become more impolitic to say so bluntly as Wilson moved into electoral politics himself, just as Wilson protested even in 1887 that he was not trying to create “an offensive official class . . . with sympathies divorced from those of a progressive, free-spirited people.” But such thinking is inseparable from Wilson’s preference for insulating government administration from public accountability to the “unphilosophical” masses.

Wilson did not explicitly argue that Americans should follow Confederate administrative precedents; he fashioned himself as too much a man of the wider world for that. His thinking also reflected the influence of Prussian administrative practice. Wilson was an admirer of Bismarck, and Prussian and German administration would remain popular with progressive thinkers all the way to the First World War. Wilson also protested in 1887, however, that “Prussia’s particular system of administration would quite suffocate us.” Another experience with bureaucratic government was closer to home. The stamp of Wilson’s early years never left him, and having been reared in the Confederacy and having subjected Confederate administration and the Confederate constitution to academic study, it is unsurprising that he came to the same conclusions.

From Wilson, we can easily draw a straight line to modern progressive administration. Not only did our 28th president expand the administrative state in ways both temporary and permanent, but his example was also widely cited by the next Democratic president, Franklin D. Roosevelt, who served as an undersecretary of the Navy under Wilson and was on the next Democratic ticket in 1920. FDR campaigned in 1932 on returning to Wilson’s approach. “We planned in war,” was the progressive slogan around using Wilson’s war policies in peacetime against the Depression. FDR ultimately bent the Supreme Court to accept the large-scale, permanent metastasis of federal administrative government, under the methods of constitutional interpretation originated by Wilson.

In Woodrow Wilson’s administrative-state legacy, we can still see the long shadow of the Confederate States of America.

Editor’s note: This article has been edited since publication.

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