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 recent publications by the author examining the intellectual framework underlying U.S. and European Internet privacy regulation.

Document Type


Publication Date

Summer 2008

Notes/Citation Information

Penn State Law Review, Vol. 113, No. 1 (Summer 2008), pp. 113-187



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.