The dormant commerce clause doctrine has allowed the judiciary, by itself, to create and sustain a nation-wide free trade zone in the U.S.
Friedrich Hayek did not predict Donald Trump, and President Trump is not the central planner of Professor Hayek’s dark imaginings. The question is whether Hayek’s analysis of the central planner can help explain the Trump phenomenon. The claim of my February Liberty Forum essay was that it could. In assessing that claim, I have the privilege of thoughtful replies from distinguished interlocutors representing a broad and diverse range of perspectives. I am grateful for their incisive responses.
Tom Palmer’s challenge to the thesis begins with a critique that it is unparsimonious: Simpler explanations, he observes, will do for Trump, including the crowded GOP primary field, Hillary Clinton’s missteps, the global inclination toward authoritarian populism and what Palmer correctly notes are “social polarization and media fragmentation.” (We can add others here, from Trump’s use of Twitter, to the coarsening of the culture more generally.) If a Hayekian analysis would have predicted a Trump, Palmer asks, why now rather than before, and why here rather than in other polities with more social democratic orientations?
This seems fair enough. One ought not to overstate, as perhaps I did, theoretical explanations for political events whose actual causes are almost always multivariate and which are rarely abstract. On the other hand, two points in defense of the Hayekian framework: First, if Hayek’s prediction were accurate, it would always be exposed to Palmer’s critique, which is to say it would always occur at some discrete point in time, and we would always be entitled to ask why it happened then as opposed to earlier.
Second, the question is whether Hayek supplies a helpful explanatory tool, not a wholesale account of Trump. On this more important point, I suspect Palmer and I share more ground. We certainly share a fear that the Trump election is establishing new and irreversible norms in American politics.
This irreversibility lies at the heart of the most frontal assault on my account, Daniel McCarthy’s argument that “[o]ur republic has moved from Madison to Machiavelli.” That is, rather than institutional power counteracting institutional power (the Madisonian design), McCarthy suggests that the new reality is personal power. The person who wields it may, like Machiavelli’s prince, invert private and public virtù: Displaying the latter may mean disregarding conventions as to the former.
On the Machiavellian model, McCarthy writes, republics degenerate and a prince, seeking glory, refounds them, often by explicitly rejecting the norms under which the corruption occurred. We are not talking totalitarianism, as was Hayek, but power does not attract men of conventional morality even in liberal republics:
To acknowledge this is to offer a gentle, realist rebuke to Hayek: Just as power is the only thing that can check power—and today, personal executive power may be the only thing that can check institutional executive power—so a certain exceptional moral character is required even of “good” leaders.
I would not follow McCarthy to these conclusions, partly because I do not accept the premises from which they proceed—premises, incidentally, that do not merely accept but that instead actively accelerate the concentration of power: the “corruption” unto near collapse of the regime. This is the oldest story in the accumulation of executive power: Crisis is upon us and, in the words of candidate Trump, “I alone can fix it.” What the Anti-Federalist Centinel wrote of the pre-constitutional period might be more accurately stated now: “My fellow citizens, things are not at that crisis; it is the argument of tyrants….”
Nevertheless, even supposing a scenario of catastrophe, what truly troubles one about this mode of argument is the seeming claim that, the regime lying close to the precipice, the best solution is not to pull it back but rather to kick it the rest of the way over the cliff. If the regime needs refounding on the basis of executive power—not, as Machiavelli would have it, on the basis of a recurrence to its first principles—might we have done without the claim that Trump had to be elected to restore “constitutional governance” and prevent a Clintonian “slide towards an all-powerful presidency”?
In the course of diagnosing the corruption of the regime that necessitates this refounding, McCarthy—observing the use of executive authority by the likes of Franklin Roosevelt and Lyndon Johnson—also diagnoses the problem with refounding by means of a prince. Publius notes in Federalist 9 that the “petty republics of Greece and Italy … were continually agitated [and] kept perpetually vibrating between the extremes of tyranny and anarchy.” Machiavelli’s paradigm of virtù, Cesare Borgia, lost his empire on his death because of circumstances that exceeded his control.
So it is with Presidential power: It is inherently ephemeral. We lurch from one executive to the next in perpetual vibration. A guidance letter here, an executive order there, all to be revoked or reissued after the next election. There is no security, no endurance, to these measures. The only sure thing is their steady use to expand rather than to contract the power of the state. President Trump is so using them, and as Hayek predicted and Palmer and Brian Smith note, he is doing so in remarkably personal, case-based rather than rule-based terms.
As President Trump illustrates, personal checks on power do not check power as power. They merely direct it toward different ends. They may be right-leaning ends today and left-leaning ends tomorrow, but in any case, such checks abandon the traditional conservative concern with power itself, a concern McCarthy seems to share in his concern for reconciling “an aptitude for power” with “a love of liberty.”
The Constitutional regime we were assured Trump planned to restore was not personal in nature. As McCarthy observes of Madisonianism, it was institutional. McCarthy’s conclusion, if rueful, seems to be that these institutional checks have collapsed and are not returning. If that is the case, I would reply, neither are any constitutional checks on power. The only question is who gets power and how it is employed.
That means a permanent acceleration of power. It means permanently immense stakes in its capture. It means what Hayek warned: The worst will continue to get on top.
McCarthy does endorse another vital check on power: civil society, which he incisively and persuasively notes cannot be entirely Hayekian, for it cannot be wholly “voluntary” at the expense of also being “associative”: “Association, quite apart from conscious voluntary commitment, has to involve solidarity, a sense of common feeling and duty among members, something rather contrary to the spirit of individualism.”
Here I agree entirely. But so does Madison, a majoritarian who by no means endorsed radical individualism. His Federalist 57 thus says the ultimate guarantor of Constitutional liberty lies in both institutional solutions and an enlivened populace: what he calls “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.”
It was this excessive Hayekian individualism I had in mind in suggesting he could veer toward the anti-political. Brian Smith reasonably defends Hayek against this charge by salvaging his warnings from his individualism: “While I don’t disagree that sometimes Hayek’s desire for a ‘hands-off’ constitutionalism appears impossible to achieve, his emphasis on how democracy can be destroyed by the slow erosion of constitutional limitations seems particularly prescient.”
Smith’s concern, which I share, lies with President Trump’s emphasis on “action” as opposed to “a politics chastened by the rule of law.” Hayek teaches that this appetite for action, any action, leads to the homogenization and vulgarization of popular views. As Smith observes, the Austrian predicts that in this environment, candidates seeking power will turn to savaging their opponents rather than offering affirmative programs.
This does not make Donald Trump a Hayekian tyrant in the offing, as Smith observes. He trends, rather, toward pragmatism. But here Smith makes a perceptive point, which is that pragmatism itself can undermine “the importance of procedure,” replacing predictable and general rules with case-based deal-making.
Pragmatism is appealing because, in political life, we are drawn to action like cats to motion. But in politics as in baseball, great beauty can consist in inaction arising from broadly applicable rules that require concerted effort, sustained consensus and high skill before motion occurs.
Regardless of whether he precisely predicts our contemporary situation, Hayek does remind us of this enduring lesson of constitutionalism: That the action is “ours,” or that the actor is “conservative”—both questionable premises in the case of the protectionist and presidentialist Trump—ought not to comfort today. A tomorrow will come when neither the action nor the actor will be. The theory and practice of Trumpism are systematically disarming constitutionalists against that inevitability.