Autocrats at the Breakfast Table: The Interstate Commerce Commission and the Emergence of the Post-Enlightenment Paradigm

Mark F. Kightlinger, University of Kentucky

Abstract

This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC) – the first federal administrative agency – in an effort to identify the intellectual roots of the modern administrative state. The Article applies a theoretical framework constructed from the writings of philosopher and social theorist Alasdair MacIntyre on the failures of post-Enlightenment thought as well as the work of Max Weber on bureaucratic authority structures and that of Robert Rabin on the history of administrative law. Using this framework, the author showed in two recent articles that U.S. and European laws governing information privacy on the Internet reflect and reinforce the “post-Enlightenment paradigm.” Under the post-Enlightenment paradigm, we have come to understand ourselves as individuals interacting with other individuals and organizations in markets subject to the expert, impersonal supervision of bureaucratic administrators. But how did we come to see our world as an appropriate subject for administrative supervision and ourselves as regulated, administered and supervised beings? This Article takes an important step toward an answer to that question by identifying the early traces of the post-Enlightenment paradigm in the Supreme Court’s writings about the ICC between 1887 and 1910. The paradigm influenced the outcome of several major cases, and it became the hub of the conceptual apparatus with which the Supreme Court explained and justified the ICC and the ICC’s relationship to the market for railroad services. The Supreme Court articulated the paradigm within the emerging field of administrative law and thereby gave its imprimatur to a new way of understanding ourselves, namely as subjects of the modern administrative state.