Ernst Freund, Felix Frankfurter, and the AmericanRechtsstaat: A Transatlantic Shipwreck, 1894–1932

Abstract

From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund developed an Americanized version of theRechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter, a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund,Administrative Powers over Persons and Property(1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today theRechtsstaatis largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.