He Tried to Warn Us

Donald Trump and Hillary Clinton entered the 2016 campaign as the least popular major-party presidential nominees in the history of polling. Clinton was widely regarded as some combination of corrupt and disingenuous. Many of Trump’s most serious supporters still tend to defend him from a posture more of apology than enthusiasm. The campaign played out as if designed to disprove Publius’ prophecy about selecting a chief executive: that it “affords a moral certainty, that the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Publius’ prediction, of course, assumed a modest presidency and a limited regime. He never met either the Progressive state or the modern presidency that commands it. F.A. Hayek did, and in warning of the propensity of statist regimes to elevate the worst to the top, his writings foretold much of the contemporary political dilemma.

Hayek’s accuracy—so great for him as a thinker, so unfortunate for us—lies in his perception of the inherent tendency of statist systems to promise the undeliverable and to seek overweening power vainly to attempt it.  Even more than most, such a system attracts leaders hungry for power and willing to lie about what they can achieve. Presidential politics is drawing mediocrities and charlatans while inducing laxity in the citizenry because so unhealthily much power changes hands in elections. People gamble wildly when large stacks of chips entice them, especially when desperation pushes them from behind.

One can choose which 2016 candidate, or both, to examine under the Hayekian diagnosis. Probably a systemic sickness better characterizes the situation. In any case, the virus was loose. The good news is that Dr. Hayek also suggests the remedy: a return to a politics of the limited and the general.

To be sure, in lamenting the choices on the ballot this fall, we must resist the siren calls of cheap cynicism. One would be the assumption that just because statist systems exaggerate their capacity to control all variables in society, that means, in turn, that restoration of their antecedents with their orthodox limitations is possible or desirable. Operating on that assumption, conservatism easily degenerates into mere hand-wringing.

A second temptation is expecting the innocence of the driven snow from political actors. Ruing the supposedly wretched quality of presidential candidates is a quadrennial, and tiresome, American tradition. The statesman willing to enter the arena is inescapably sullied by it, whereas the reluctant philosopher dragged from his perch of uncorrupted contemplation and beseeched by a pleading public to lead is likely to be either insincere or, worse, means it.

Still, it seems difficult to say the election has elevated the best available statesman. Yes, the President is a New York showman; no, that does not mean his distortions, vulgarities, and inflammatory rhetoric do not count.

Drawing together a variety of strands in Hayek’s thought, we can see why such a figure sought, and achieved, the top. There is a surplus supply of power that, like moths to light, attracts those with the most to gain and the most to lose. We expect Presidents to do too much, reward them for claiming they can, and weep the tears of the betrayed when, burdened by demands neither they nor we never seriously believed they could bear, they fail.

Hayek’s application of economic analysis to political phenomena was, however, incomplete. It sometimes verged on the apolitical if not anti-political. But this much must be said: With respect to spectacles like that which unfolded in the primaries and general election of 2016, he tried to warn us.

Rise of the Unscrupulous and the Uninhibited

“Why the Worst Get on Top” is the title of Chapter 10 of The Road to Serfdom (1944), and it lays out the problem. In describing the dilemma of the collectivist who cannot implement his plans without inflating his authority, Hayek’s concern is not with planning so much as with power. He cautions that the supposedly gentle and compassionate morality that induces collectivism does not correspond to the morality of those who run it:

Just as the democratic statesman who sets out to plan economic life will soon be confronted with the alternative of either assuming dictatorial powers or abandoning his plans, so the totalitarian dictator would soon have to choose between disregard of ordinary morals and failure. It is for this reason that the unscrupulous and uninhibited are likely to be more successful in a society tending toward totalitarianism.[1]

The converse is also true. The prudential or measured statesman, especially if he dares to speak truthfully about what can reasonably be achieved, stands little chance against the expectations that such a regime creates.

This difference between collectivist aims and collectivist impositions is accentuated by “the general demand for quick and determined government action.” Citizens are “dissatisfied with the slow and cumbersome course of democratic procedure” and this “makes action for action’s sake the goal.” Such a demand naturally elevates “the man or the party who seems strong and resolute enough ‘to get things done.’” Such a leader must operate on broad popular appeal.

Who, Hayek asks, is likely to provide it? The answer is that “such a numerous and strong group with fairly homogeneous views is not likely to be formed by the best but rather by the worst elements of any society.” He gives three reasons why.

First, as knowledge spreads, views become more differentiated, so a homogeneous group is likely to have remained so because its members are less educated.

Second, a demagogue will obtain the support of “all the docile and gullible” who will accept “a ready-made system of values if it is only drummed into their ears sufficiently loudly and frequently.”

Finally, it “seems to be almost a law of human nature that it is easier for people to agree on a negative program—on the hatred of an enemy, on the envy of those better off—than on any positive task.”

As indicated, Hayek’s predictions apply to collectivism, which he believed would slide ineluctably into totalitarianism. But one need not accept the fullness of that causal relationship to see that they also apply to statist regimes that, against the cautions he enters elsewhere—The Constitution of Liberty (1960) and Law, Legislation and Liberty (1973) among other works—attempt to dictate the terms of social, economic, and political life.

This is substantially the contemporary condition, and it is difficult to ascribe exclusively to one party. It represents the accumulated precedents of eight decades of New Deal practices against which neither party has ever waged a serious frontal assault.

Hayek, it should be noted, was not opposed to government’s establishing a base level of welfare for all. In the previous chapter of Road to Serfdom, he distinguished between two kinds of security: protection “against severe physical privation, the certainty of a given minimum of sustenance for all,” versus a guarantee of “the particular income a person is thought to deserve,” especially if it is established relationally, that is, if it is based on comparison to what others have. He wrote: “There is no reason why in a society which has reached the general level of wealth which ours has the first kind of security should not be guaranteed to all without endangering general freedom.”

The level at which the minimum should be set presents difficult prudential questions, but the key is that it be provided accorded to general rules, and not in an attempt to remake economic distributions according to arbitrary formulas or, worse, in particular cases. The latter is what requires the concentration of authority that attracts the power-mad to politics.

Coercion’s Calling Card

For Hayek, the problem of power is fundamentally the problem of knowledge. As he detailed in his canonical “The Use of Knowledge in Society” (1945), the economic planner’s aspiration—the arrangement of institutions so as to yield preferences based on a complete command of knowledge—is not only fantasy, but fails to align with the purpose of economic institutions in the first place.

In The Constitution of Liberty  and, later, the first volume of Law, Legislation and Liberty , Hayek applies the same insight to politics. Chapter Four of The Constitution of Liberty, “Freedom, Reason, and Tradition,” distinguishes between the British school that sees economic, political, and social institutions—including morality—as gradual, evolutionary percolations that come over the course of many years, and the French enlightenment, which sees them as creations of immediate reason. In Great Britain, the French tradition glided into the Benthamite school, whose battle with the Whig view—the battle, that is, between reason and tradition—contained the seeds of the contemporary dispute between “liberal and ‘social’ or totalitarian democracy.”

The argument of theorists of liberal democracy, says Hayek,

is directed throughout against the Cartesian conception of an independently and antecedently existing human reason that invented [social, political and economic] institutions and against the conception that civil society was formed by some wise original legislator or an original “social contract.”[2]

The key feature of social as opposed to liberal democracy thus lay in its ambition to direct particular outcomes rather than setting in place the general rules of social life. Power, that is to say, does not trouble Hayek if it is the power to achieve one’s own aims through voluntary association.

So pay careful attention to the work done by the word “particular” in this passage:

Neither the powers of a Henry Ford nor those of the Atomic Energy Commission, neither those of the General of the Salvation Army nor (at least until recently) those of the President of the United States, are powers to coerce particular people for the purposes they choose.[3]

The attempt to dictate particular outcomes rather than general rules is the calling card of coercion. The speed limit does not coerce drivers—it is a general rule that applies equally to all. Giving police officers the authority to apply specific limits to particular drivers of their choosing would be coercive. Consequently:

Freedom of contract, like freedom in all other fields, really means that the permissibility of a particular act depends only on general rules and not on its specific approval by authority. It means that the validity and enforcibility of a contract must depend only on those general, equal, and known rules by which all other legal rights are determined, and not on the approval of its particular content by an agency of the government.[4]

There are, to be sure, dangers in this view. It exhibits what I referred to as Hayek’s apolitical side; what is more, it risks becoming anti-political if it does not allow the community to act concertedly to cultivate and defend a way of life.[5] But Hayek is certainly right that such ways emerge rather than being imposed.

One need not follow him all the way to the collectivist or totalitarian state in which this officiousness terminates, to see that it characterizes modern Progressivism. The unique ambition of Progressivism is to reorder society along lines deemed rational or moral by those at the center whose expertise is presumed to exceed that of countless individual actors making dispersed and irrational or at least arational choices in society.

Progressivism’s ambition differs from that of political liberalism’s goals of economic amelioration. A Hayekian view would permit amelioration even to the extent political liberalism would argue about its generosity. Progressivism—which is most emblematic in the replacement of what was once a concern with objective poverty and deprivation by an obsession with the “one percent,” a wholly capricious category rooted in envy and comparison—seeks redistribution according to moral standards that Hayek would qualify as inherently arbitrary.

Nor is this solely a matter of economics. We witnessed in the Obama years a wholesale effort to remake attitudes through guidance letters and other forms of presidential fiat from agencies like the Department of Education. It was a textbook instance of centralized political planning out of dissatisfaction with the slower and less discretely rational machinery of tradition.

It is tempting to ascribe this centralizing tendency to the political Left alone, but there is good reason to be vigilant of the Right in this regard. This is partly true because there is little demonstrable appetite in either party for reclaiming Congress’ policymaking authority from the executive branch, or for providing regulatory agencies with sufficient guidance that their authority is not both particular and arbitrary.

But more broadly, President Trump’s economic nationalism, and especially his crony capitalism, are predicated on the assumption that those pulling the levers of power, and he especially, are more able than the infinite dispersion of the market to determine the best location of jobs, the optimal price of goods (through tariffs), and to make other such decisions. This is simply pressing the private sector into the state’s service, compelling it to deliver social welfare benefits in a market-distorting fashion that closely parallels the objections that Republicans had to Obamacare.

This is, indeed, in many ways endemic to Trumpism itself: “I am your voice”; “I alone can fix it”; “I will make America great again.” A President scarcely familiar with the first-person plural presents, surprising as it may be, a rare case in which the passive voice might do good service. America can be made great again. But no discrete operator or policy is going to accomplish it.

That one operator or policy ever would, presents problems of information (“complete rationality of action in the Cartesian sense demands complete knowledge of all the relevant facts,” Hayek wrote in Law, Legislation and Liberty) but also of coercion.[6] The Constitution of Liberty asks:

Why, then, has there been such persistent pressure to do away with those limitations upon government that were erected for the protection of individual liberty? And if there is so much scope for improvement within the rule of law, why have the reformers striven so constantly to weaken and undermine it? The answer is that during the last few generations certain new aims of policy have emerged which cannot be achieved within the limits of the rule of law. A government which cannot use coercion except in the enforcement of general rules has no power to achieve particular aims that require means other than those explicitly entrusted to its care and, in particular, cannot determine the material position of particular people or enforce distributive or “social” justice.”[7]

Who wants that much power and wants it enough to lie about it? And who is willing to believe? The worst, and the most vulnerable, in turn.

The Progressive public, to be sure, presents a different case from the uneducated “dupes” who come out to support the totalitarian of whom Hayek warns. The totalitarian needs a homogeneous coalition and thus an unthinking one. The coalition for the populist, in contrast, may be motivated variously, as President Trump’s voters were: some to signal a need for a shakeup, some out of genuine belief, others—many, apparently—revolting in a predictably furious reaction to failed expectations repeatedly stoked. The shame is that it was a revolt in favor of someone who further inflated expectations.

Ambitions of a Rule-of-Law Regime

Hayek’s analysis suggests that any regime that attempts to direct the details of civic life will amass power and inflate expectations in ways that will render power so attractive that it will make measured statesmen unpalatable while attracting charlatans. If so, the solution is to alter the character of government, opting for the general over the particular and, relatedly, the simple over the complex.

“In other words,” Hayek explains in The Constitution of Liberty, “it is the character rather than the volume of government activity that is important.” This distinction is decisive. People of different political orientations can argue about the proper extent of government regulation, but the fundamental point is that its character should be transparent and general. “Rule of law provides the criterion which enables us to distinguish between those measures which are and those which are not compatible with a free system.”[8]

Complex and particularized government makes bargaining and coalition-building rather than the rule of law into the supreme value. The result, Hayek writes, is “a government which cannot, even if it wished, obey any principles, but must maintain itself by handing out special favours to particular groups. It must buy its authority by discrimination.”[9]

A regime that dictated broad rules, whether aggressively or sparingly, would still command substantial influence. A return to such a regime is what is needed. It would still be concerned with the essential goods of politics, not merely the humdrum regulations of traffic flow. It would still be involved in the great work of statecraft. What it would be able to avoid is coercion, in the sense that it would not give vent to the ambitions of those who wish to decide whether to harass particular employers on “a day-by-day basis.” That is the point. The ambitions a rule-of-law regime would draw forth would not be rooted in power. They would be rooted in politics. There is a difference.

[1] F.A. Hayek, The Road to Serfdom: Text and Documents: The Definitive Edition (University of Chicago Press, 2007), p. 158.

[2] F.A. Hayek, The Constitution of Liberty (University of Chicago Press, 2011), p. 112.

[3] Constitution of Liberty, p. 202.

[4] Constitution of Liberty, p. 339.

[5] Willmoore Kendall powerfully shows how radical individualism can inhibit a political community’s means of survival itself.

[6] F.A. Hayek, Law, Legislation and Liberty: Volume 1 (University of Chicago Press, 1973), p. 12.

[7] Constitution of Liberty, p. 340

[8] Constitution of Liberty, p. 331.

[9] F.A. Hayek, Law, Legislation and Liberty: Volume 3 (University of Chicago Press, 1981), p. 102.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 03, 2017 at 07:29:23 am

This is a well-thought out and profound essay, but the thick academic prose makes it better suited for a scholarly paper than a piece of work that can reach the masses.

read full comment
Image of Bob Dylan
Bob Dylan
on February 03, 2017 at 12:05:46 pm

It is difficult to outweigh Hayek's analyses; but, the sad fact is that we now actually HAVE a Federal Administrative State in place. The actions conducted by the personnel within it have the greatest impact on the broad public (who are actively "represented" by the 45-52% of their number who vote - the "modern" electorate).

Those actions have been dominated by the unelected, the Administrators (the 'Bureaucrats"), who in actual fact have implemented the "Crony Capitalism" syndrome for the benefit of their symbiotic relationships with the political class (principally legislators).

For comparison , we have the recent actions by (unelected) Administrators, through the NLRB to prevent the very same Boeing from a management decision to establish additional facilities in S.C. that might impact its operations in Seattle.
We now observe a challenge to that administrative turf by an elected person; this time (perhaps not the last) on contracting with the Federal Government.

Perhaps we should observe a bit more, over more time, as to whether there is to be a shift in the powers of intrusions from administrators to the elected.

There is obvious public dissatisfaction with the impacts from intrusions and rules made, interpreted, and enforced by administrators that further entrench the FAS in all levels of private lives. Invasion of the "bureaucratic" turf may lead to more disclosures (buzzword "transparency") that will lessen public reliance and acceptance of the FAS.

At least, it is "out in the open" a bit more now.

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on February 04, 2017 at 11:47:37 am

sometimes the "particularized" approach is necessary to undo the damage caused by a previous "particularization" as evidenced below:


I think that the "trick" IS in the undoing of, as Weiner argues, the previous eight decades of New Deal expansion of Federal Power AND the marked inability / unwillingness of The Congress to reassert his delegated powers. If the Legislative is neither prepared nor willing to counter the insatiable appetite of the Leviathan, grown fat these many years on a diet provided by Executive Orders and congressional timidity, then how is this to be *UNDONE*?

It may very well be that the most propitious method for the "undoing" may be resort to the same unhealthy practices - BUT only for a time sufficient to restore *general* order / law.

If such an approach is even mi nimally successful in altering / diminsihing the citizenry's dependence upon / expectations of the FAS, then progress may be said to have been made.

Let us hope this is the case.

read full comment
Image of gabe
on February 04, 2017 at 12:07:33 pm

AH! You catch on !

The legislators don't want to "tackle" the monstrosity of diverse administrators they have created in the FAS (to which they have delegated their responsibilities); BUT, they will attack the personification of the executive (which appears to be just one guy pulling administrative powers to himself).

So, as the administrative powers are "snatched" by the person of the executive, they can be assailed (or constrained) by those same legislative powers which have been reluctant to attack the administrators directly. That may be THE legacy of the current President.

When power and its exercise is "concentrated' sufficiently (say, in one person's actions), so it can be seen for what it is and what it portends, then we can see the beginnings of reactions. Note the personification as George III of the powers exercised by Parliament under the Whigs in the Declaration of Independence.

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on February 04, 2017 at 12:56:51 pm

Ahh! What poor Donald The First is in for in the coming years!!!! - to be assaulted by both the front and backbenchers, the judges and the bureaucrats, who have even at this early date developed a *secret* encryption app to mask their little plots while still enjoy the amenities of FAS service.

It strikes me as somewhat curious that a man who spent his entire working life fighting against the edicts of the FAS as it applied to his enterprises (and state level as well) is now to be assumed to be one who, either by design or ignorance, will further advance the interests of the FAS.

Ultimately, one must conclude that there is more Hayek in Donald The First than in the FAS, their protestations, and those of their communications organs in the media, notwithstanding.

Oddly enough, the expected obstructionism of the FAS may serve to temper The Donald's ego and as a consequence he may not overreach.
Alternatively, it may simply piss him off and he may take steps to diminish the influence of the FAS.

In either case, I view this a s a plus for the Hayekians of the world.

The again - he could go off the rails......

read full comment
Image of gabe
on February 06, 2017 at 15:09:42 pm

Hayek? No.

Election science? Yes.

The problem of majoritarian electoral systems is well known and well studied. They don't produce good and consistent results. Publius was over enthusiastic because in his day they did not have a good understanding of democratic electoral systems. It's as simple as that.

The election of Trump was the inevitable product of the majoritarian electoral college. There is no surprise here. Nothing remarkable occurred. There is no one to finger with blame. The system produced the result it did because that's the result it is designed to produce.

Complaining is useless. Unless perhaps we call complaining an entertainment sport in which case it should be exercised while consuming large quantities of chips and beer. Maybe the dems and reps could add some cheerleaders and dancers to the show (woo-hoo!). Maybe they could get a classy performer, like Lady Gaga, to provide entertainment while the ballots are being cast.

You work to change the way the system works. Or you don't, but who would want to ruin all the fun by doing that?

read full comment
Image of Scott Amorian
Scott Amorian
on February 07, 2017 at 11:24:21 am

Elections are entertaining, but there consequence is a grant of power.

Is your objective to have the most entertaining election possible ?

Or is it to govern in the way that assures us the most prosperity and the greatest freedom ?

read full comment
Image of jbsay
on February 07, 2017 at 11:29:12 am

Elections are entertaining, but there consequence is a grant of power.

Is your objective to have the most entertaining election possible ?

Or is it to govern in the way that assures us the most prosperity and the greatest freedom ?

If the results of the current conflict diminish the executitive the administrative the judiciary and the legislative - that is a good thing.

read full comment
Image of jbsay
on February 16, 2017 at 17:57:42 pm

"Is your objective to have the most entertaining election possible?"

Definitely! I live in Oregon, a deep blue state. In our majoritarian elective system, non-leftists such as myself have no representation at the state or national level. We political gnats in the wind must find the humor in the frequent absurdities of representative government. We make great efforts to imbibe enough and to provide enough snarkiness to dull the pain and fill the political void in our lives.

All we can do meanwhile is try to predict where the economy and law will head and try to position our fortunes accordingly.


read full comment
Image of Scott Amorian
Scott Amorian
on February 28, 2017 at 17:35:06 pm

Of course, one of the Framers also warned us. Mr. Franklin's prediction was that the republic would "end in Despotism . . . , when the people shall become so corrupted as to need despotic Government, being incapable of any other."

read full comment
Image of John T.
John T.

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.