Ludwig von Mises | Wiki­media Commons

Ken Davis is a former deputy attorney general for the Vir­ginia com­mon­wealth. Hillsdale’s Fed­er­alist Society invited Davis to Hillsdale College Nov. 6, to speak on “Cap­i­talism and the Rule of Law.” He received his B.A. from Cornell, his M.A. from Oxford, his J.D. from Harvard Law School, and his MBA from Vir­ginia Com­mon­wealth Uni­versity. Cur­rently, he is a senior attorney at a private law firm.


Q: When did you know you wanted to attend law school?

A:  I knew as a result of my good fortune from the great pro­fessors I had at Cornell. My work with them con­firmed my interest in American history and gov­ernment, and that led me to undertake a graduate study and career in law. I didn’t know for sure when I was an under­graduate, but I was very inter­ested in American history, in con­sti­tu­tional history, in political phi­losophy and eco­nomics. All of those things com­bined led me to law school.


Q: I under­stand you’re speaking on cap­i­talism and the rule of law.  Does the rule of law require a cap­i­talist society or is it the other way around?

A:  The two really go together. One pre­sumes the exis­tence of the other. You can’t really have a cap­i­talist economy without the rule of law as a its properly under­stood. They rein­force each other like but­tresses in a cathedral. That’s because cap­i­talism in its essence involves the vol­untary exchange among free indi­viduals for mutual eco­nomic bet­terment.


Q: I take it you’re a fan of Ludwig von Mises?

A: Yes, and Hayek. You can’t have a mutually ben­e­ficial vol­untary exchange without an insti­tu­tion­alized legal system of clear and stable rules that apply to all equally, rules that provide for the enforcement of con­tracts, the trans­parent adju­di­cation of dis­putes and most impor­tantly, the pro­tection of private property.


Q: What are the greatest threats towards a con­sti­tu­tional legal system and a cap­i­talist society?

A: Tuesday is the 100th anniversary of the com­munist rev­o­lution in Russia. They came to power specif­i­cally to wipe out cap­i­talism and establish heaven on earth. They wiped out cap­i­talism and the rule of law, and created a living hell on earth.

Q: So you believe com­munism to still be a threat?

A: Absolutely. It’s con­cerning to see in a recent poll of young Amer­icans that they would prefer to live under a socialist system than a cap­i­talist one.


What they’re crit­i­cizing is not cap­i­talism, it’s really the cor­po­ratist political system. We have a con­sol­i­dated admin­is­trative state that is unac­countable and over­bearing and char­ac­terized by political favoritism. They protect incum­bents, they dis­courage inno­vation and foster cronyism. I under­stand the con­cerns of the eco­nomic and political systems in the country but the critics aren’t really crit­i­cizing cap­i­talism and the rule of law. Our current system is more of a cor­po­ratist system.


Q: So is this cor­po­ratist system the greatest threat?

A: It is a big threat because it has replaced the rules with political favoritism. To be clear, the answer is not socialism. The record is clear every­where socialism has been applied has been a political, per­sonal and eco­nomic dis­aster. The answer is not socialism. It is a restoration of cap­i­talism and the rule of law.


Q: So how do we do that? Do we need to amend our con­sti­tution? Perhaps call for a con­vention of states?

A: I think dis­cussion of amend­ments to the con­sti­tution are good because they foster a serious debate about serious issues. When looking at the con­sti­tution, if you want to change the con­sti­tution, the amendment of the con­sti­tution is the way to do it, not the pro­gressive fallacy of the so-called living con­sti­tution.

Those ini­tia­tives, as good as they are, are not enough. The real chal­lenge lies in our insti­tu­tions them­selves. Insti­tu­tions are merely the for­mal­ization of the values and beliefs of the people who form the insti­tu­tions. We founded this country with those insti­tu­tions because we had certain beliefs about the sanctity of the indi­vidual and indi­vidual liberty: natural rights . The most important work that can be done to restore cap­i­talism and the rule of law is to look at those beliefs and values and under­standing about natural rights and the sanctity of the free indi­vidual and think about ini­tia­tives to strengthen those values. That’s why the work and schol­arship at Hillsdale is so important, because of the good work everybody does here.

Q: Are you hopeful for the future restoration of the rule of law and cap­i­talism?

A: After vis­iting Hillsdale, yes.