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The Rise of the Administrative State

The Rise of the Administrative State

“The state has an "annexationist" character tending toward centralization and the development of a Provider State. We must uphold the principle of subsidiarity. Action should always be taken by the smallest possible unit, starting with the person.” – Erik von Kuehnelt-Leddihn, The Portland Declaration, 1981[1] 

Before the Great Depression, President Calvin Coolidge restated an earlier vision of America which had been memorialized at Independence Day celebrations for 150 years. In his sesquicentennial address entitled “The Inspiration of the Declaration,” he described the convictions which shaped the thinking of the ordinary people who agreed together to separate from imperial Britain: “They were a people who came under the influence of a great spiritual development and acquired a great moral power.” More specifically, the President stated: “No one can examine this record and escape the conclusion that in the great outline of its principles the Declaration was the result of the religious teachings of the preceding period.” Coolidge concluded with this observation: 

“No other theory is adequate to explain or comprehend the Declaration of Independence. It is the product of the spiritual insight of the people. We live in an age of science and of abounding accumulation of material things. These did not create our Declaration. Our Declaration created them. The things of the spirit come first. Unless we cling to that, all our material prosperity, overwhelming though it may appear, will turn to a barren scepter in our grasp. If we are to maintain the great heritage which has been bequeathed to us, we must be like minded as the fathers who created it. We must not sink into a pagan materialism. We must cultivate the reverence which they had for the things that are holy. We must follow the spiritual and moral leadership which they showed. We must keep replenished, that they may glow with a more compelling flame, the altar fires before which they worshipped.”[2] 

The Provider State inaugurated by the Roosevelt’s New Deal seven years later may be sharply contrasted with the decentralized federal republic and the public philosophy with which the American experiment began. Soon afterward, the journalist Garet Garrett opened his meditation on the political revolution embodied in the New Deal with this striking sentence: “A time came when the only people who had ever been free began to ask: What is freedom?” With the language of a bedtime story—“Once upon a time”—Garrett ushers us into an ageless tale of temptation. In the Foreword to The People’s Pottage (1953), Garrett posed some leading questions: 

“Why should people not be free to say they would have less freedom in order to have more of some other good? What other good? Security. What else? Stability. And beyond that? Beyond that the sympathies of we, and all men as brothers, instead of the willful I, as if each man were a sovereign, self-regarding individual.”[3] 

Notice the way he frames the issue. Freedom is being redefined as selfishness. There is nothing novel about this trick. The power to redefine, for example, the very meaning of the constitutional and theological doctrine has proven to be a great boon as well for modernists and postmodernists who seem more than willing to split churches and divide countries while furthering their purposes.[4] Garrett, who was for many years the editor of the Saturday Evening Post, understood that a successful revolution in the name of reform and solidarity had occurred. As early as 1938 when he wrote a booklet entitled “The Revolution Was,” he could describe the revolution in a single sentence: “Executive power over the social and economic life of the nation was increased.”[5]

Decades after Garrett wrote, the legal historian Harold J. Berman described a spirit of lawlessness that had spread through the land through the decline of the once-coherent, formal Western legal tradition. 

“The law is becoming more fragmented, more subjective, geared more to expediency and less to morality, concerned more with immediate consequences and less with consistency or continuity. Thus the historical soil of the Western legal tradition is being washed away in the twentieth century, and the tradition itself is threatened with collapse... Almost all the nations of the West are threatened today by a cynicism about law, leading to a contempt for law, on the part of all classes of the population.”[6] 

This breakdown of discipline is connected with the increase of executive power in the same way as a vacuum is to whatever fills it.

We should note that the problem Garrett and Berman have described is not simply a matter of public administration but also signals a loss of loyalty to longstanding legal and political traditions. James Madison made a profound observation in Federalist 57

“I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.

If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America – a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.”[7] 

In that last phrase, Madison seems to anticipate the rise of a political messianism[8] that pursues high-minded goals through high-handed means by corrupting the moral and institutional foundations of limited government, thus contributing to the failure of the legislative, executive, and judicial branches to honor constitutional limitations. “[W]hat is to prevent discretionary justice,” Berman later asked, “from being an instrument of repression and even a pretext for barbarism and brutality, as it became in Nazi Germany?”[9] He added: 

“Cynicism about the law, and lawlessness, will not be overcome by adhering to a so-called realism which denies the autonomy, the integrity, and the ongoingness of our legal tradition. In the words of Edmund Burke, those who do not look backward to their ancestry will not look forward to their posterity.”[10] 

At the base of this tradition,[11] the Bible provides for the rule of law, which, after all, is designed to regulate behavior. The Ten Commandments summarize the right ordering of life and the Great Commandment summarizes its essence. But punctilious attention to the external signs of the law can cause it to become hidebound and legalistic. Jesus answered a group of hair-splitting theologians who sought to test him by replying that they knew neither the Scriptures nor the power of God (Matt. 22:29). Today’s revolt against legal formalism has promoted a similar disrespect for law.

The historical influence of preaching the Gospel shows both the Scriptures and the power of God at work in the development of Western civilization. The English legal tradition makes a distinction between law and equity that carries over into the United States Constitution. With the rise of commerce during the Middle Ages, 

“rules governing business activities multiplied. The separate justice [for commerce] developed into equity proceedings in the courts of Chancery, the laws of bailment grew, and if the sea was involved, the courts of Admiralty applied laws derived from the Hanseatic League, which in turn were based upon the ancient rules of the sea, the laws of Oleron [Eleanor of Aquitaine] and Wisby. Business developed within a corset of law that defined acceptable rules of behavior.”[12] 

The creative interplay between law and equity provided a spawning ground for the development of what Francis Lieber called Anglican liberty and, later, American liberty.[13] During the Protestant Reformation, a new mass medium – the printing press – contributed to the intellectual ferment that resulted from the circulation of new translations of the Bible into the vernacular languages. In The Book That Made Your World, the Indian philosopher Vishal Mangalwadi describes the intellectual atmosphere of sixteenth century England: 

“Alehouses became debating societies as people interpreted and applied the Bible differently to the intellectual and social issues of the day. Some were content to let the church settle their disputes. Others realized that the only way to determine which interpretation was correct was to read the Bible with valid rules of interpretation. This was a bottom-up revolution. It infused the minds of all literate Englishmen – not just those in universities – with a new logical bent. It took no time for that movement to spread into other aspects of people’s lives... [O]nce the English people began using logic to interpret the Bible, they acquired a skill that propelled their nation to the forefront of world politics, economics, and thought.”[14] 

It should be noted that self-governing Americans, who were the heirs of that period of Protestant ferment, later showed themselves to be capable of systematizing laws both formally through the codification movement led by David Dudley Field in New York and informally through the development of mining laws during the California gold rush to which his brother, the future Justice Stephen Field, devoted some of his early efforts. Insights into this period may be gleaned from Hernando de Soto’s The Mystery of Capital and the work of another legal historian, J. Willard Hurst, who attributed nineteenth century industrialization in part to a “release of energy” that resulted from a preference shown “for dynamic over static property.”[15]

Given this intellectual vitality, it should be evident, however, that protecting the integrity of the state, the law, the economy, and all other institutions is an even greater challenge when literacy becomes almost universal. As Mangalwadi observed: “Influenced by William Tyndale’s book The Obedience of a Christian Man (1528), Henry [VIII] thought that reading the Bible would make Englishmen docile and obedient. He was furious when just the opposite happened.”[16] Centuries later, Madison thought it necessary to use “ambition to counteract ambition” because of the release of so much pent-up intellectual and entrepreneurial energy within the dynamic American society.[17] The energy released by the Glorious Revolution of 1688 and subsequent Industrial Revolution was partially rooted in the English Reformation of the 1640s, which was modeled, as noted by Eric Nelson, on The Hebrew Republic.[18]Alongside this intellectual ferment, there is another factor to consider. The English system of land tenure helps explain the rise of the regulatory state, which the economic historian Jonathan R. T. Hughes traces back to the colonial period: 

“The essence of American capitalism was transplanted from England in the mainland American colonies... For in the ancient English land tenure of free and common socage lay the seed of American capitalism as it would be in future, a powerful right of private ownership of land and natural resources, which in time was generalized to other forms of private property. In socage tenure the owner had the full rights to exploit, as he pleased, both surface and subsurface resources. Rapid alienation meant selling, buying, and settling land as fast as men and women were willing to take up new territories... Fee socage ensured that land, once it was open to private purchase, would be settled at maximum speed. It also meant that, if society at large was to be protected from the adverse spillover effects of private economic activity, government power would ultimately have to be imposed and private right controlled.”[19] 

There was also an important stipulation in this arrangement: Taxes had to be paid or else the land reverted to the donor, which during the colonial period meant the Crown and which today is the people of the United States. This arrangement virtually guaranteed that land would not be left idle as it is in some parts of the world.

The regulatory state which has grown up for the past century meets some very real needs but has also encouraged long-standing expectations within society. Although American economists typically criticize government regulations as something incompatible with a free market, Hughes argues they are retained because the public considers them desirable. But, at the same time, Hughes illustrates and underscores Frederic Bastiat’s observation about the tendency of the law to favor legal plunder: “The country’s form of government not only lends itself to favoritist legislation, but depends upon it. A history of American government limited to those laws that sprang pure from the brains of the nation’s politicians with no special interests as their objects would be a very short history indeed.”[20]

The historical precedent for such intervention is the use of the police powers – dating back to the Middle Ages – to protect public health, safety, peace, and morals: “Controls over business activity at the state and municipal levels were primarily by license to limit entry, to raise tax revenues, to control morals, and to regulate the quality and prices of franchised public-service enterprises.”[21] In more recent times, new or reimagined legal instruments – limited liability corporations, administrative law, executive agencies with quasi-legislative and quasi-judicial powers, equity jurisprudence, various international conventions – have enhanced and extended the power of the state in a manner expressive of Rousseau’s general will concept. The definition of public welfare has gradually become all-absorbing in its scope and renders both the state and its citizenry vulnerable both to special interests and outside powers.[22]

Another scholar, Robert Kagan, has noted: “Many regulatory programs have been extremely effective, even if relatively little is spent on enforcement. Regulations to prevent anthrax in cattle herds virtually eradicated that deadly disease... Safety regulations have sharply reduced deaths in coal mines.”[23] On the other hand, Kagan believes that some regulatory skepticism is justified: “Banking regulations did not prevent disastrously large numbers of overly risky loans by American savings and loan organizations in the 1980s or by their Japanese equivalents half a decade later.”[24] The question can even be raised whether a particular regulatory regime creates certain expectations that permit or even encourage risky business. Kagan continues: “An example of widespread noncompliance or wholly inadequate enforcement can be found to match almost every regulatory success story.”[25]

The problem may have less to do with the jurisdiction that creates the regulations than with the larger purposes pursued by those with vested interests as well as the compatibility of these interests with traditional expectations. As Hughes notes: 

“What was controlled traditionally were four crucial points in the flow of economic transactions: (1) number of participants in a given activity, (2) conditions of participation, (3) prices charged by participants either for products or services, and (4) quality of the products or services… This social control matrix is the subtle and complex economy of controls we have experienced historically, and with a few exceptions (for example, output control over crude-oil extraction, or production by permit only, as in the case of peanut farming) still do.”[26] 

What does such intervention signify? It is protectionism of one sort or another: first, last, and always. As the economic historian Douglass North has commented: “A continuing dilemma of regulatory agencies is that they can become vehicles whereby the regulated regulate the regulators, in the interest of the regulated – rather than that of the public.”[27] This applies equally to the class or professional interests of identifiable parties, particularly those that are not generally recognized as interest groups. We may draw similar observations and lessons from the Covid lockdowns.

What has changed since the Progressive era is the growth of the administrative apparatus itself and its increasing use as an instrument of political favors and favoritism.[28] Perhaps the single most important and lasting innovation of Franklin Delano Roosevelt’s New Deal era was the Executive Reorganization Act of 1939, which, as Sidney Milkis has noted, 

“enhanced the president’s control of the expanding activities of the executive branch. As such, this legislation represents the genesis of the institutional presidency, which was equipped to govern independently of the constraints imposed by the regular political process... Patronage appointments had traditionally been used to nourish the party system; the New Deal celebrated an administrative politics that fed instead an executive department oriented to expanding liberal programs. As the administrative historian Paul Van Riper has noted, the new practices created a new kind of patronage, ‘a sort of intellectual and ideological patronage than the more traditional partisan type.’”[29] 

As a result of this so-called Third New Deal, the Democratic party was transformed into an incumbency party – “a way station on the road to administrative government” – for the generations that followed and thus became the means of “embedding progressive principles (considered tantamount to political rights) in a bureaucratic structure that would insulate reform and reformers from electoral change.”[30]

The price exacted by this process, however, subsequently proves to be higher than anticipated – progressively and cumulatively so. A “free lunch” on the state’s tab may be prohibitively expensive in the long run. Paul Rahe criticized the “servility” of the American Catholic bishops in “assisting the Democratic Party and promoting the growth of the administrative entitlement state:” 

“Barack Obama... has unmasked in the most thoroughgoing way the despotic propensities of the administrative entitlements state and of the Democratic Party. And now he has done something similar to the hierarchy of the American Catholic Church. At the prospect that institutions associated with the Catholic Church would be required to offer to their employees health insurance covering contraception and abortifacients, the bishops, priests, and nuns scream bloody murder. But they raise no objection at all to the fact that Catholic employers and corporations, large and small, owned wholly or partially by Roman Catholics will be required to do the same.”[31] 

Exchanging money for favors introduces a similar dynamic. Rent-seeking – the mercenary use of public office for private advantage – has become standard practice as the Provider State subsidizes, absorbs, and manages what were once commonly regarded as private or non-political interests. The natural impetus of any human system – whether a commercial enterprise or the State itself – is towards the increasing organization of all variables that impinge upon its effective operation. Yesterday’s political reform movement becomes today’s well-defended vested interest which then serves as the justification for tomorrow’s lawfare. As Francis Rourke put it: “bureaucratic services generate constituencies that oppose their liquidation.”[32] Yet, as Paul Rahe’s Catholic bishops discovered to their chagrin, the intense rivalry for subsidies and entitlements reinstates Thomas Hobbes’s state of nature.

Both Friedrich A. Hayek and Thomas Sowell note that central planning invites arbitrary action.[33] In explaining “Why the Worst Get on Top,” Hayek observed that “it is easier for people to agree in a negative program – on the hatred of an enemy, on the envy of those better off – than on any positive task.” Having a common enemy “seems to be an essential ingredient in any creed which will solidly knit together a group for common action.”[34] Political movements are susceptible to being mobilized in the name of something resembling William James’s “moral equivalent of war.”[35] The temporary wartime or emergency measures during the First World War fostered a taste for political intervention even as they served as prototypes for future additions to the permanent bureaucracy. Such precedents incentivize special pleading in the name of the public interest, often winning public support by scapegoating stereotyped opponents.

Bad-faith political trade-offs – compromises of principles – contribute to a “race to the bottom.” The logic of cronyism dissolves old bonds and forges new shackles. The classic example is Jezebel’s treachery against Naboth in 1 Kings 21. The city fathers ingratiated themselves to her by helping arrange Naboth’s murder. Did similar calculations help account for Allied cooperation in the postwar seizure and deportation of Russian emigrés and East Europeans to Soviet slave labor camps through the unpublicized Operation Keelhaul?[36] Similarly, the propagation of underworld subcultures of “sex, drugs, and rock and roll” lifestyles has guaranteed that entrapment, complicity, and shame will remain among the chief tools by which those who lust for power keep people pliant and submissive.

It is particularly ironic then that the century-old Progressive reform movement originally argued that “good government” (once mocked as “goo-goo”) through administrative law would guide society along the paths of progress. The spoiled fruits of these reforms should remind us of Bastiat’s warning against false philanthropy, which may be seen in conjunction with Hughes’s “governmental habit.” Indeed, Bastiat detected a contradiction at the heart of the socialism of his day: 

“Here I encounter the most popular fallacy of our times. It is not considered sufficient that the law should be just; it must be philanthropic. Nor is it sufficient that the law should guarantee to every citizen the free and inoffensive use of his faculties for physical, intellectual, and moral self-improvement. Instead, it is demanded that the law should directly extend welfare, education, and morality throughout the nation.”[37] 

As Sheldon Richman has noted: “If philanthropy is not voluntary, it destroys liberty and justice. The law can give nothing that has not first been taken from its owner. He applies that analysis to all forms of government intervention, from tariffs to so-called public education.”[38] In Bastiat’s view: 

“As long as it is admitted that the law may be diverted from its true purpose – that it may violate property instead of protecting it – then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder. Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious. To know this, it is hardly necessary to examine what transpires in the French and English legislatures; merely to understand the issue is to know the answer.”[39] 

Yet Bastiat was also careful to use such terms as “legal plunder” and “false philanthropy” analytically rather than moralistically: 

“I declare that I do not mean to attack the intentions or the morality of anyone. Rather, I am attacking an idea which I believe to be false; a system which appears to me to be unjust; an injustice so independent of personal intentions that each of us profits from it without wishing to do so, and suffers from it without knowing the cause of the suffering.”[40] 

Like René Girard’s concept of mimetic desire degenerating in a contagion of rivalries, such rent-seeking behavior illustrates the natural tendency of systems to expand their reach, protect their boundaries, and secure resources in order to advance their mission, generate new needs or demands, or create dependency. Bastiat offered his argument while setting forth a public philosophy that drew upon a long tradition of Christian realism. Consider the following passage (no. 358) from Thoughts by the seventeenth century mathematician and Christian apologist Blaise Pascal: “Man is neither angel nor brute, and the unfortunate thing is that he who would act the angel acts the brute.”[41] The full force of Pascal’s observation is clear in Bastiat’s observation: “We must remember that law is force, and that, consequently, the proper functions of the law cannot lawfully extend beyond the proper functions of force.”[42]

It is good to be reminded that force potentially brutalizes whatever it touches. This danger is nowhere more passionately or memorably argued than in Simone Weil’s The Iliad, or the Poem of Force (1940).[43] Political compulsion is a blunt instrument to which people must have the freedom to adjust their expectations and actions if they are to avoid being broken upon it. When pursued as a means of delivering an ameliorative social reform agenda, however, political compulsion offers only a more diffuse outlet for philanthropic impulses rather than a surgical tool for correcting society’s defects. In the absence of a coherent public philosophy – a political consensus about means and ends – social engineering can only sow endless discord.

By rendering entire classifications of people incompetent by definition, while expanding governmental services, the growth of social service administrations – with their quasi-legislative and quasi-judicial powers – corrupts the entire system while advancing, in some ways, the power of rulers and legislators alike. As Kenneth Minogue expressed it: “One moral virtue, charity, in a politicized form, expanded to take over politics.”[44] The result may be described as a moral maze.

Far from ruling with equanimity, America’s regnant political class no longer pretends to be a disinterested party when it comes to articulating an agenda to remediate every accident of birth, wealth, and status in the name of an abstract “justice as fairness.”[45] Rather than applying law equally to all, it airs historical grievances in a bid to lead a thoroughgoing cultural revolution to repudiate the legacy of the Christian West. Global governance, socialism, race consciousness, and sexual identity are all on the march, having seized what Vladimir Lenin called “the commanding heights.” Such ideological straitjackets turn citizens into subjects and help explain why the worst get to the top.

Every rationalist political fantasy – what Michael Oakeshott calls Rationalism in Politics or telocracy[46] –resembles in its lack of accountability the international justice that Chantal DelSol criticizes as “de-localized, de-temporalized... To want to realize the universal, to grant it real existence, to establish it as a policy and a tribunal – this is to dis-incarnate humanity, to compel it to live in abstract kingdoms.”[47] That being said: What will it take to bring politics back down to earth? 

Photo credit: Steven Zucker, Smarthistory co-founder 



[1]Erik von Kuehnelt‑Leddihn, comp., The Principles of the Portland Declaration (New York: National Committee of Catholic Laymen, 1982). The Portland Declaration | The Philadelphia Society (


[3]Garet Garrett, The People’s Pottage (Caldwell, ID: Caxton Printers, 1953), 5.

[4]Zachariah Montgomery, Poison Drops in the Federal Senate. The School Question from a Parental and Non-Partisan Stand-Point (Washington: Gibson Bros., 1886), 38-42 on the redefinition of words by “mutilated Webster’s” dictionaries in favor of centralized power. The advent of the public education establishment in Massachusetts by the Unitarian political elite is recounted in Samuel L. Blumenfeld, Is Public Education Necessary? (Old Greenwich, CT: Devin-Adair, 1981). The liberal or latitudinarian strategy was to capture seminaries and other strategic centers, then demand toleration for their position until they could capture control. Once in power, “They reversed their call for judicial toleration in 1931.” Gary North, Crossed Fingers: How the Liberals Captured the Presbyterian Church (Tyler, TX: Institute for Christian Economics, 1999), 902.

[5]Ibid., 16.

[6]Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University, 1983), 39.

[7] Contrary to Madison’s expectation, Congress carves out exceptions for itself from the application of otherwise general laws. Moreover, it passes a great deal of class legislation, contrary to the intentions of the Framers. Identity politics has been advanced through administrative power, which “can bee understood as an evasion of law.” Philip Hamburger, The Administrative Threat (New York: Encounter, 2017), 15-18.

[8]J. L. Talmon, Political Messianism: The Romantic Phase (London: Secker & Warburg, 1960). See also Eugen Rosenstock-Huessy, Out of Revolution: Autobiography of Western Man (New York: William Morrow, 1938), 217.

[9]Berman, 40-41.

[10]Ibid. 41.

[11]See Fustel de Coulanges, The Ancient City: A Study of the Religion, Laws, and Institutions of Greece and Rome, Book v, chapter 3, seventh edition, trans. Willard Small (Boston: Lee and Shepard, 1889); John C. H. Wu, Fountain of Justice: A Study in the Natural Law (New York: Sheed and Ward, 1955); Jeffrey A. Brauch, Is Higher Law Common Law? Readings on the Influence of Christian Thought in Anglo-American Law (Littleton, CO: Fred B. Rothman, 1999); Augusto Zimmermann, Christian Foundations of the Common Law, 3 vols. (Redland Bay, Australia: Conor Court, 2018-19).

[12]Jonathan R. T. Hughes, The Government Habit Redux: Economic Controls from Colonial Times to the Present (Princeton: Princeton University Press, 1991), p. 38.

[13]Francis Lieber, On Civil Liberty and Self-Government, 3rd ed. (Philadelphia: J. B. Lippincott, 1877).

[14]Vishal Mangalwadi, The Book That Made Your World: How the Bible Created the Soul of Western Civilization (Nashville: Thomas Nelson, 2011), 87-88.

[15]James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States. Madison, WI: University of Wisconsin Press, 1956, p. 28.

[16]Ibid., 87. As head of the Church of England, King James I forbade the publication of footnotes in the 1616 Authorized version of the Bible he sponsored so he could control its interpretation. Thomas Hobbes in fact believed that the authority to interpret Scripture belonged to the King.

[17]Federalist, no. 51.

[18]See Eric Nelson, The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought (Cambridge, MA: Harvard University Press, 2010). See also Gai M. Ferdon, The Political Use of the Bible in Early Modern Britain.

[19]Hughes, 20.

[20]Ibid., 17.

[21]Ibid., 37-38.

[22]See Julian Ku and John Yoo, Taming Globalization: International Law, the U.S. Constitution, and the New World Order (New York: Oxford, 2012), 228; Michael Pillsbury, The Hundred-Year Marathon: China’s Secret Strategy to Replace America as the Global Superpower (New York: Henry Holt, 2016), 116. On the use of lawfare, see John Fonte, Sovereignty or Submission: Will Americans Rule Themselves or Be Ruled by Others? (New York: Encounter, 2011), 238-51.

[23]Robert A. Kagan, “How Much Do National Styles of Law Matter?,” in Regulatory Encounters: Multinational Corporations and American Adversarial Legalism, ed. Robert A. Kagan and Lee Axelrod. Berkeley: University of California Press, 2000), 6.

[24]Ibid., 6.

[25]Ibid., 6.

[26]Hughes, 16.

[27]Quoted in ibid., 97.

[28]Mancur Olson drew out several implications from the prevalence of what Theodore J. Lowi in The End of Liberalism called “interest group liberalism,” which is commonly called “clientelism” today. Olson’s seventh implication has considerable bearing on this discussion: “Distributional coalitions slow down a society’s capacity to adopt new technologies and to reallocate resources in response to changing conditions, and thereby reduce the rate of economic growth.” Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities. New Haven, CT: Yale University Press, 1982, p. 65. The implications for responsiveness to any sort of international or domestic emergency situation should also be evident.

[29]Sidney M. Milkis, “The Presidency and Political Parties,” in Michael Nelson, ed. The Presidency and the Political System, 4th ed. Washington: CQ Press, 1995, 353. Thomas Sowell has devoted decades of attention to the role of intellectuals in justifying this “moral and intellectual patronage.”

[30]Ibid. pp. 353, 354.

[31]American Catholicism’s Pact With the Devil – Ricochet, cited in Charles E. Rice, Contraception and Persecution (South Bend, IN: St. Augustine’s Press, 2014), 92.

[32] Quoted in Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (New York: Oxford, 1987), 67.

[33]Friedrich A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944), 86-87; Thomas Sowell. Knowledge and Decisions (New York: Basic, 1980), 228, 229, 307, 382.

[34]Hayek, 139.

[35] William James - The Moral Equivalent of War (

[36]Julius Epstein, Operation Keelhaul: The Story of Forced Repatriation from 1944 to the Present (Old Greenwich, CT: Devin-Adair, 1973).

[37]Frederic Bastiat, The Law (Irvington-on-Hudson, NY: The Foundation for Economic Education, 1998), 21. pNEWTEXT-04.qxd (

[38]Sheldon Richman, “Bastiat, Liberty, and The Law,” The Freeman, May 1, 1996.

[39]Bastiat, 14.

[40]Ibid., 23.

[41]The Harvard Classics, vol. 48: Blaise Pascal, ed. Charles W. Eliot (New York: P. F. Collier & Son, 1909), 122.

[42]Bastiat, 24. Law is force and is thus, as Bastiat acknowledged, the power to kill.

[43]Reprinted in Simone Weil and Rachel Bespaloff, War and the Iliad. New York; New York Review Books, 2005.

[44]Kenneth Minogue, Politics: A Very Short Introduction (New York: Oxford, 1995), 114-15; see Kevin Williamson, The Dependency Agenda. Encounter Broadside no. 28 (New York: Encounter, 2012).

[45]John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971), 11. See also Salvador de Madariaga, Englishmen, Frenchmen, Spaniards (London: Oxford, 1927), 3. De Madariaga identified “fair play as a distinctively English attitude on a level with the French “le droit” and the Spanish “el honor.”

[46]Michael Oakeshott, Lectures in the History of Political Thought, ed. Terry Nardin and Luke O’Sullivan (Exeter, UK: Imprint Academic, 2006.

[47]Chantal Delsol, Unjust Justice: Against the Tyranny of International Law, trans. Paul Seaton (Wilmington, DE: ISI Books, 2008), 84; see Steven Alan Samson, “An Imperium of Rights: Consequences of Our Cultural Revolution,” The Western Australian Jurist, 7 (2016): 171-91.



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