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Nihilism with a Happy Ending? the Interstate Commerce Commission and the Emergence of the Post-Enlightenment Paradigm

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Nihilism with a Happy Ending? the Interstate Commerce Commission and the Emergence of the Post-Enlightenment Paradigm KIGHTLINGER.DOC 11/13/2008 4:42:25 PM Nihilism with a Happy Ending? The Interstate Commerce Commission and the Emergence of the Post-Enlightenment Paradigm Mark F. Kightlinger* 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 argues that the Court’s effort to explain and justify the function of the newborn ICC shows the traces of a post- Enlightenment crisis in the field of moral philosophy—i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct. From this essentially nihilistic starting point, the Court helped to fashion a new post-Enlightenment paradigm under which the function of an administrative bureaucracy such as the ICC is to impose order on a market consisting of individuals pursuing their non-rational interests and preferences in the absence of an objective, shared moral framework. The Court thus gave its imprimatur to what has become our way of understanding who and what we are, namely, individuals who require bureaucratic supervision and bureaucratically imposed order as we pursue our non-rational wants and needs in market-based interactions with other individuals. Our need for some kind of order is the sole rationale for this bureaucratically imposed order because, by hypothesis, there no longer exists a true, objective, universally valid standard against which any such order can be measured. This Article’s account of the post-Enlightenment paradigm, its genesis, and its implications builds on the work of philosopher and social theorist Alasdair MacIntyre as well as on two * James and Mary Lassiter Associate Professor of Law, University of Kentucky College of Law; J.D., Yale Law School, 1988; Ph.D., Yale University, 1991; B.A./M.A., Cambridge University, 1983/1995; B.A., Williams College, 1981; Partner, Covington & Burling 1999-2004. 113 KIGHTLINGER.DOC 11/13/2008 4:42:25 PM 114 PENN STATE LAW REVIEW [Vol. 113:1 recent publications by the author examining the intellectual framework underlying U.S. and European Internet privacy regulation. I. INTRODUCTION........................................................................... 115 II. THE POST-ENLIGHTENMENT PARADIGM ................................... 117 III. THE INTERSTATE COMMERCE ACT ............................................ 130 IV. THE ICC AND THE POST-ENLIGHTENMENT PARADIGM............. 139 A. Individuals & Markets ........................................................ 140 1. The Historical Background—Roots of the 19th Century in a Different Form of Life.............................. 140 2. Individuals in the Supreme Court’s Interpretation of the ICA.......................................................................... 145 3. Markets in the Supreme Court’s Interpretation of the ICA................................................................................ 153 B. Administrative Bureaucracy in the Supreme Court’s Interpretation of the ICA .................................................... 164 1. The ICC & Rate-Setting................................................ 165 2. ICC Authority & Expertise: Power Without Standards....................................................................... 169 3. ICC Investigations and the Rise of the Bureaucratic Corporation ................................................................... 177 V. CONCLUSION .............................................................................. 185 KIGHTLINGER.DOC 11/13/2008 4:42:25 PM 2008] NIHILISM WITH A HAPPY ENDING? 115 I. INTRODUCTION Government by administrative agency has become ubiquitous. The White House website lists 136 federal agencies and commissions1 that operate in parallel to the 15 cabinet-level departments of the executive branch.2 These federal agencies run the gamut from the Advisory Council on Historic Preservation through the Small Business Administration to the Women’s History Commission. The first independent federal regulatory agency,3 the Interstate Commerce Commission (“ICC”), was established in 1887,4 meaning that the administrative government of the United States is largely a creation of the last 120 years. If, two decades after Appomattox, one had told a Civil War veteran that his great grandchildren would live in a world where an army of bureaucrats do most of the work of the federal government, his response probably would have reflected disbelief, if not blank incomprehension.5 The world that has come to seem normal to us would probably have been unimaginable to him. Even if he had witnessed the birth of the ICC in 1887, it would have required prophetic powers to predict that from this single stream the river of the modern administrative state would flow. For those of us who are troubled about how we have come to be the subjects of administrative government, the hypothetical Civil War veteran presents an important puzzle. How in the relatively short space of 120 years—less than two modern lifetimes—did we evolve from a 1. Federal Agencies and Commissions, http://www.whitehouse.gov/government/ independent-agencies.html (last visited July 29, 2008). 2. The executive departments are Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs. See President Bush’s Cabinet, http://www.whitehouse.gov/government/ cabinet.html (last visited July 29, 2008). 3. Jay S. Bybee, Agency Expertise, ALJ Independence, and Administrative Courts: The Recent Changes in Louisiana’s Administrative Procedure Act, 59 LA. L. REV. 431, 437 (1999). For a review of the history of U.S. administrative law prior to the establishment of the ICC, see Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256 (2006), and Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 YALE L.J. 1636 (2007). 4. See Interstate Commerce Act, ch. 104, § 11, 24 Stat. 379, 383 (1887) [hereinafter ICA]. The ICC was replaced in 1995 by the Surface Transportation Board. See SURFACE TRANSPORTATION BOARD, 1996/1997 ANNUAL REPORT 1 (1998), available at http://www.stb.dot.gov/stb/docs/ActivityReport1996-1997.pdf. 5. The number of civilian officials in the federal government jumped from roughly 95,000—a large percentage of whom were postal workers—in 1881 to nearly 500,000 by 1925. See James Q. Wilson, The Rise of the Bureaucratic State, 41 PUBLIC INTEREST 77, 77 (1975). KIGHTLINGER.DOC 11/13/2008 4:42:25 PM 116 PENN STATE LAW REVIEW [Vol. 113:1 world in which a national government dominated by an army of administrative officials was unimaginable to a world in which such a government is a premise of our daily lives, a world in which readers of an article such as this might wonder why or how one could seriously question the value of administrative government? To put the problem somewhat differently, how have we come to see ourselves as proper and even inevitable subjects for administrative oversight, as regulated and supervised beings? In two recent articles, I argued that this understanding of ourselves reflects what I refer to as the “post- Enlightenment paradigm.” I suggested that the post-Enlightenment paradigm influences and perhaps dictates the way that we explain and justify our behavior and the structure of our social world.6 As discussed in Part II of this Article, at the root of the paradigm is a fundamentally nihilistic understanding of our modern situation, a conviction that it is no longer possible to articulate a true, universally valid, objective moral theory according to which we can and should live. Starting from nihilistic premises, we have learned to understand ourselves primarily as individuals pursuing our subjective interests and preferences through agreements with other individuals in markets.7 In order to function, the markets require the supervision of expert, impersonal bureaucratic administrators.8 Thus, administrative bureaucracies have become a crucial component of our account of who we are and how we obtain what we need and want. Because we understand ourselves through the framework of the post-Enlightenment paradigm, we find it easy and normal to cede control over our lives to administrative bureaucracies and we find it difficult to imagine ourselves in a fundamentally different way—for example, as members of a self-directed community pursuing a shared vision of the good life.9 Thus, one might say that the difference between the hypothetical Civil War veteran and us is that he did not comprehend the world through the post-Enlightenment paradigm while we do. To that extent, he inhabited a different world from ours. If there is merit to the contention that we now explain and justify our behavior and the structure of our social world through the framework of the post-Enlightenment paradigm, then the next question is how the paradigm came to play this crucial role. This Article investigates one of 6. See Mark F. Kightlinger, The Gathering Twilight? Information Privacy on the Internet in the Post-Enlightenment Era, 24 J. MARSHALL J. COMPUTER & INFO. L. 353 (2006) [hereinafter Kightlinger, Gathering Twilight]; Mark F. Kightlinger, Twilight of the Idols? EU Internet Privacy and the Post-Enlightenment
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