The underlying problem for the West is not Islamic fundamentalism. It is Islam, a different civilization whose people are convinced of the superiority of their culture.
Is Administrative Law Unlawful?, by Philip Hamburger, ISBN 978-0-226-11659-4.
This large (over six hundred pages) and expensive (USD 50) book is a prodigious scholarly achievement. Its author, Philip Hamburger, a professor of law at Columbia Law School, presents voluminous evidence that the US constitution was specifically crafted to prevent the emergence and exercise of rule by counterfeit fiat — which is to say that James Madison and his colleagues intended to prevent the circumvention of representative governance.
…Madison wrote in The Federalist: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may only be pronounced the very definition of tyranny”.
In support of his thesis, Hamburger examines the protracted British struggle to make it impossible for political authority to fracture, ignore, or rise above and beyond the law. He then argues that the American effort to draft an enlightened constitution benefited from and refined the principles that inspired that struggle.
The focus of Hamburger’s attention is the bizarre mutation called administrative law.
Two terms are central to the topic, and they must be unambiguous to the reader. The first, administrative, designates all the agencies and activities of the executive branch of the US federal government — that is, the work done by all the people who are appointed and hired by the president.
Second is the verb bind, which means to require, to obligate. When the government binds someone, it either forbids or demands specific actions. Everyone is bound by the prohibition of murder, and bound by requirements to pay taxes. To be bound means to be subject to demands made by higher authority. Here is a crucial passage taken from page four of the book:
Nowadays…the executive enjoys binding legislative and judicial power. First, its agencies make legislative rules dictating what Americans can grow, manufacture, transport, smoke, eat, and drink. Second, the agencies make binding adjudications — initially demanding information about violations of the rules, and then reaching conclusions about guilt and then imposing fines. Only then, third, does the executive exercise its own power — that of coercion — to enforce its legislation and adjudication.
The author is remarking on the existence of authority that is above the law, and of authority that is outside the law (there is a distinction). The discussion is both analytical and historical: the political and legal heritage of the United States comes directly from the British experience, of course, so Hamburger clarifies in detail the crucial issues addressed by British royalty, politicians, officials, parliamentarians, and jurists. This information makes it clear that the development of British concepts of decent governance is of paramount importance to an understanding of the motives and intent of the framers of the US constitution.
Hamburger employs admirably meticulous scholarship as he bids the tale unfold. He leaves no loose ends, citing instances and events that lesser lights might consider peripheral. In fact, virtually nothing in the chronicle can be considered inconsequential, for the fact is the British considered and debated and fought over all the major questions of how political power should be exerted, and to what ends.
The casual observer might be tempted to reduce the British experience to a competition between the royal personage and the people. Some readers will therefore be surprised to discover that the monarch was considered part of the legislative branch of the government. Further, in spite of all its failures to keep the peace and see to humane jurisprudence, British political philosophy taught the colonists the prime importance of a tripartite government (which Britain never had) and emphasized the rights of the individual. Common law was, in the final analysis, triumphant in Britain, in spite of royal privilege and repeated attempts to weaken the political power of the people.
Hamburger presents the wealth of detail with a firm hand that always leads the reader back to the essential facts: the British resisted supralegal authority and refused to obey extralegal commands. Ultimately, no power was allowed to be above or outside the law, and the law was representatively created by the people, not by a dictatorial elite. The polity, not the crown, was the source of political and jurisprudential authority and the wellspring of ethical governance. This was a unique monarchy, distinct from continental instances, and it retained its essence in spite of repeated attempts by royal rascals to claim a divine right to bind British subjects. In all probability, the history of British political power will surprise many in the USA, for the common misconception is that the unfolding of the drama always and only involved the king fighting Parliament. The truth is more complex, and an understanding of British legislative history is central to an understanding of why the US constitution has its present form. Hamburger’s book is, therefore, advisable not just for its examination of the American experience.
And the conclusions Hamburger draws? He insists that the executive branch of the US government currently enforces numerous unconstitutional — and therefore illegal — edicts which it misrepresents as being legitimate and binding. To iterate: illegal means are used to dictate to an abused populace. The unconstitutional outrages, Hamburger says, permit and then foster corruption, and do indeed pose grave dangers to the future evolution of the Republic’s very character.
Only a fool would make those claims and fail to provide a comprehensive case for the searing accusations. Hamburger is no fool.
He examines every aspect of the question, including the fascistic fable that without a myriad of administrative agencies, the government could not function. Hamburger argues convincingly that the current unconstitutional system need not exist: if the legislature were to legislate…if the judiciary were to adjudicate…and if the executive were to conduct itself as a servant rather than as a chimerical monster that subsumes all the powers of the three distinct branches…neither the government nor the nation’s business would grind to a halt.
If you believe (as many do) that it is only appropriate for the executive branch of the government to include many agencies, commissions, boards, authorities and other bodies that make law, conduct judicial proceedings, impose restrictions and requirements on people and corporations, permit and forbid commerce, confiscate wealth, and in general do virtually everything that all three branches of the government do…if you consider that rational…you desperately need to read and understand Hamburger’s painstaking refutation of your folly.
The history of government is largely a story of elite power and popular subservience. Americans, however, turned this old model upside down. By establishing a republican form of government, they eventually made themselves masters and made their lawmakers their servants. More than two centuries later, the shell of this republican experiment remains. Within it, however, another government has arisen, in which new masters once again assert themselves, issuing commands as if they were members of a ruling class, and as if the people were merely their servants. Self-government thus has given way to a system of submission.
That “system of submission” is arrogant and brazen, but without legitimacy. The constitution says simply, “All legislative Powers herein granted shall be vested in a Congress of the United States….”. Hamburger insists that the words precisely express the framers’ intent. That word all is unambiguous: only Congress can legislate. When, therefore, a regulatory agency in the executive branch writes a law and imposes it on the public (or on any segment of the polity), it violates the constitution. (Hamburger notes that the executive agencies tacitly admit this, for rather than call their laws “laws”, they call them “regulations” and “rules”, and claim those ukases are instances of what is mischievously called “administrative law”. Genuine laws, the agencies know, can proceed only from Congress. The bureaucrats’ transparent nomenclature is amateurish deceit; it expresses a constitution-be-damned lust for status and power.)
Certainly no review of this volume can make the full case against administrative law. Know, therefore: Hamburger’s book is vitally important. Its logic is precise, its facts are voluminous, and its reasoning is utterly without flaw. It anticipates and dispenses with every objection.
(Fussy aside: it is a pity that the proofreaders at the University of Chicago Press did not approach their task with the fastidious concern the author exercised in his research and scholarship.)
There are two further comments that must be made about Hamburger’s achievement: first, the twenty-fourth chapter is a fascinating account of how Prussian absolutist political theory prompted US misunderstandings of the federal constitution — and altered the function of the government for the worse. That chapter alone is worth the price of the book, for it is a dual account, first of a fell aspect of US history, and second of current malpractice.
Second, some readers will be stringently tested as they work their way through Hamburger’s encyclopedic clarification of British and American historical developments and the finer points of legal reasoning. So, in the event you find the task daunting, begin your reading of this volume with Chapter 25 and then read the Conclusion of the book. That will prepare you to deal with Hamburger’s uncompromising scholarship.
Then there are references in Hamburger’s tome that might remind of other sources. When he discusses the inevitable corruption that results from administrative law, Hamburger suggests a good deal more than just the occasional greedy corporation. In fact the reader could leap to speculation about shadowy conspiracies, some of them international; to be sure, there have been and are associations that do intend to guide nations along specific paths, and those conspiracies vary in their ethics. For just one example, the reader might recall Carroll Quigley’s revelations in his book, Tragedy and Hope (ISBN 0913022-14-4 or 978-0945001102); see commentary that begins on page 950.
When rascals gain office and plan to reinvent the nation as a Utopia, all manner of nonsense and evil can result. The authoritarian impulse produced administrative law, and that in turn mocks the constitution, as Hamburger proves. That contemptuous disdain for principle can easily lead to fascism. Recall Jonah Goldberg’s Liberal Fascism, reviewed by this newsletter. Once the constitution is subverted by power-hungry ideologues like Woodrow Wilson, the horrid becomes more likely.
…Christopher Hitchens…observes that “the true essence of a dictatorship is…not its regularity, but the unpredictability and caprice; those who live under it must never be able to relax, must never be quite sure they have followed the rules correctly or not. Thus, the ruled can always be found to be in the wrong”.
The danger…is not merely the self-interest of the continuing lawmaking class, but a regime that pursues the public interest as understood by this class, without direct and specific accountability to the people. Whatever can be said against members of Congress, they are only temporary lawmakers and must submit to the people on election days. Many administrative lawmakers, however, hold power continuously, and therefore exert power over the people for the people’s good, without fear of popular removal. Put succinctly, power over the people for the sake of the people, is very different from government of the people, by the people, and for the people.
Administrative law could be eradicated by the cooperation of the judicial and legislative branches. Hamburger suggests that below the supreme court and the federal courts, judges could act to give their superiors both reason and time to see that the toleration of administrative law is a hypocritical blunder. This newsletter wonders whether Congress could pass laws vacating the authority of the agencies in the executive branch to bind individuals and corporations. Do understand, however, that reform will not be easy:
The development of administrative power … cannot be understood merely as a question of law, or even merely as a question of intellectual history. It also must be recognized as a sociological problem — indeed, a profoundly disturbing shift of power. As soon as the people secured the power to vote, a new class cordoned off for themselves a sort of legislative power that they could exercise without representation.
All US federal judges should be required to study this book, and all senators and representatives should at the very least attend a seminar on its contents. Hamburger’s brilliant, comprehensive, and authoritative volume makes clear that the US constitution was specifically designed to prevent the appearance of administrative law; that is literally the venerable document’s primary function. How many graduates in political “science” fully grasp that insight?
In fine: Hamburger’s evidence, reasoning, and conclusions should be taught in the USA’s secondary schools and in the higher institutes.
Every US citizen — and many thoughtful allies of representative government, wherever located — should understand what happened to principled governance when the Prussian model of administration gained influence in the New World, and when small men like Wilson achieved high office.
This Newsletter Is Here To Help
From The Tramp Abroad’s forthcoming New Guide For The Perplexed: to determine which religion best fits you, just follow this handy-dandy flow chart. Yep, Ol’ Maimonides ain’t got nuthin’ on The Tramp! — You are welcome, Pilgrims.
Links Courtesy Of The Tramp Abroad
Shame: Not only is the US military suffering from immoral and abusive treatment imposed by its government, but our Canadian brothers appear to be in a much worse situation.
Was passiert wenn die Großfrau einzieht.
After the Führerbunker comes il bunker del Duce.
Here’s a cute distraction merging music and animation.
The future of labor.
Turning the tables on the cops.
The real war begins with the “man on the street” joining the ranks. The Germans have not “officially” sanctioned this. They still claim that they are blocking people who are going to fight for IS/ISIS, but perhaps they are looking the other way when certain groups are going to fight against IS/ISIS.
A call for crazy ideas from Bill Gates.
Arguably the best “unknown” composer in the world. At least in Australia. That’s not bad for 80 year old Natalie Trayling, who got a million hits for her birthday. Here she is seen composing on the spot (well, improvising).
The Dean offers a link on Ebola. It is, he notes sardonically, the Islamofascist’s disease to die for.
Also from the Dean: a reminder that as trendy political correctness sweeps across the land, some folks are not going quietly.
From time to time, snippets reporting astronomical discoveries make it into the everyday news. Here’s a follow-up report on one that is recent. It deals with a source of radiation that has puzzled astronomers and astrophysicists. Understanding the science is easiest for the experts, but there are a few aspects of the video that can be grasped by the layman — more or less.
AGW? While the faithful keep the flame, the rational report what is. There are so many scientific papers giving the lie to the nonsense that this newsletter can’t report more than a fraction of them. If you want links to recent studies, check here and/or here. Meanwhile, here’s a graph that shows the correlation between atmospheric carbon dioxide and climatic temperature over a long, long span of time. A version of this graph was reproduced in this newsletter years ago, and this newer edition shows the facts more clearly. It’s from the Hockeyschtick website.
A hat tip to reader JY for this excellent item on the death of Ben Bradlee. Brief and candid, it just might open your eyes. Do not skip it!
You might have missed this: a British lady says she is sensitive to signals from mobile phones and other wireless devices, so she’s had her home shielded. She’s probably right, and that invites speculation about all other electromagnetic radiation. It’s been proved to this newsletter’s satisfaction that power transformers do not cause childhood cancer, but…there is a lot more to be learned. There might be nasty surprises in store.
The experts have told us what a comet is, and how comets were formed. All that is wrong. Have a look!
In this video, a hard-core, die-hard pacifist/collectivist contemplates Obama. Isn’t it odd how The One has managed to alienate just about everybody? How would you characterize the folks who still believe in the man, and defend him against attacks from both ends of the political spectrum? Finally, what term best describes Obama? Would “left” or “progressive” apply? Some would argue that he can be understood only in the unlikely event one achieves a comprehensive grasp of his intellect and character. According to that view, his education, experience, and political statements are irrelevant.
Eric Holder is still the attorney general of the USA, isn’t he? And since he has definitively assured the nation that the crimes of voter/election fraud never occur, none of this can possibly be true. That’s a relief. –Whoa! What’s this??