Alexis de Tocqueville famously observed that lawyers “form the most powerful barrier…against the lapses of democracy.… [T]heir spirit will be eminently conservative” and “if they prize freedom, they generally place legality well above it; they fear tyranny less than arbitrariness.” Tocqueville's fear of administrative despotism and lawyers' fear of arbitrary government play a central role in Tocqueville's Nightmare. Surprisingly, given the title, Ernst concludes that the American administrative state did not become the monster Tocqueville envisioned: “Something about the ‘machinery of government’ that Americans had built for themselves had confounded Tocqueville's expectations” (1). “That something was the rule of law” (2). Thanks to the lawyers, who intervened to ensure that the administrative state would remain within the boundaries of the rule of law, Ernst argues the administrative state did not become the nightmare that Tocqueville envisioned.

Five chapters describe how the American administrative state was tamed by the rule of law. The first examines the dispute between Ernst Freund and Felix Frankfurter to explain why the Rechtstaat that Freund admired never came to America. Frankfurter's eclipse of Freund led reformers to turn from specialized administrative courts to an alternative approach. The agencies themselves would have to be made “over in the image of the courts” (27).

This was accomplished in multiple steps, which are the subjects of the remaining chapters. Two chapters focus on Charles Evans Hughes's contributions to administrative law. Hughes worked to prevent some reformers from using Albert Venn Dicey's ideal of the rule of law to cripple the administrative state. In his rulings, he tended to defer to administrative findings of fact, but he also “urged agencies to make their procedures more closely approximate those of the courts” (45). As Chief Justice Hughes curtailed the corporatist elements of the New Deal and ensured that “administrators would follow procedures, including findings of fact on a record, that allowed private parties to contest an agency's actions and to permit courts to make sure that it had acted within statutory and constitutional limits” (69). Therefore “under Hughes the Supreme Court did not abandon the rule of law but merely swapped Dicey's version of it for a procedural variant that looked to keep administrators in check” (71). Courts would “tolerate departures from a strict version of Dicey's rule of law…when agencies' procedures approximated ‘the ordinary legal manner’ of the courts. If individuals had their ‘day in Commission,’ they were not owed a further ‘day in court’” (33).

However, although the Supreme Court accommodated the administrative state in the 1930s, other lawyers and politicians had to be convinced. Ernst's final chapters deal with the political battles surrounding “anti-bureaucracy” clauses in the New York Constitutional Convention of 1938 and in the Walter–Logan Act. The New York clause, which represented a more radical vision of the rule of law, was rejected decisively by voters. However, threatened by these challenges to administrative power, agencies such as the National Labor Relations Board (NLRB) reformed themselves internally to afford fair process to parties, thus ensuring that administrative power would follow lawful procedures.

The passage of the Walter–Logan Act by Congress nationalized the debate. However, despite the bar's widespread support of Walter–Logan's provisions, the debate “ended with Roosevelt's veto” (136). By 1940, the battle to render the administrative state lawful had largely been won on other grounds: “by then the courts had long since concluded that close after-the-fact review of administrative fact-finding would swamp their dockets and keep agencies from doing the jobs they were created to do. The judges shifted their efforts to prescribing procedures…. And the agencies responded” (137). These developments induced agencies to establish procedural fairness, taking the edge off of the administrative state.

Tocqueville's Nightmare is excellent legal history. It is thorough, well-researched, and gripping. The discussions of the Rechtstaat and the Walter–Logan controversy are also particularly illuminating. When drawing conclusions, however, the book fails to follow its otherwise lofty standards. Among the key conclusions that Ernst draws from history is that “the builders of the new administrative state did not succumb to alien ideologies; rather, they sought to preserve, not renounce, fundamental principles of American government” (144). Ernst's book supports this conclusion, but he fails to give the administrative state's critics the fair treatment that he gives the book's other protagonists. Their arguments against the administrative state, Ernst asserts, were merely made in order “to defend a particular political, professional, or scholarly interest” (144). After undertaking such a fair-minded and thorough discussion of the critics and supporters of the administrative state from 1900 to 1940, it is disappointing to see such a superficial treatment of contemporary critics of the administrative state.

Tocqueville's Nightmare promises to become a definitive source for elaborating the controversies that divided reformers over the legitimacy of the administrative process in the early twentieth century. Ernst has revealed how the legal profession sought to resolve the tension between administration and the rule of law as the administrative state was under construction. Whether this narrative establishes the administrative state's legitimacy is a larger question that remains unanswered, but future discussions will be greatly informed by the analysis in this book.