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 (left)
developed an Americanized version of the Rechtsstaat—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 (right), a celebrant of the
enlightened discretion of administrators. Freund's major
publication for the Commonwealth Fund, Administrative Powers
over Persons and