Constitutional legalism is no panacea, but it is the best we lawyers can do.
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.
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.”
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.
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.
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. 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. 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.”
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.”
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.”
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.
 F.A. Hayek, The Road to Serfdom: Text and Documents: The Definitive Edition (University of Chicago Press, 2007), p. 158.
 F.A. Hayek, The Constitution of Liberty (University of Chicago Press, 2011), p. 112.
 Constitution of Liberty, p. 202.
 Constitution of Liberty, p. 339.
 Willmoore Kendall powerfully shows how radical individualism can inhibit a political community’s means of survival itself.
 F.A. Hayek, Law, Legislation and Liberty: Volume 1 (University of Chicago Press, 1973), p. 12.
 Constitution of Liberty, p. 340
 Constitution of Liberty, p. 331.
 F.A. Hayek, Law, Legislation and Liberty: Volume 3 (University of Chicago Press, 1981), p. 102.