Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.
This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.
The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.
Ilya Somin and David Bernstein, abstract to “The Mainstreaming of Libertarian Constitutionalism” in Law and Contemporary Problems, reposted in the Washington Post, 2015-02-20.
October 13, 2016
June 11, 2016
Lots of Americans are suddenly discovering that over the years, they’ve granted a heck of a lot of power to the executive branch that constitutionally were not supposed to be granted to the president. That probably seemed okay when the president was someone they supported, but every four to eight years there’s a gasp of realization that the powers that you thought would only be used “for good” might now fall into the hands of the Anti-Christ/Hitler/Stalin/[insert-favourite-boogeyman]. At Status 451, Simon Penner explains why, when you strike at the King you dare not miss:
As a Canadian, seeing the 2016 election from the outside, people’s reactions to Trump confuse me. Especially as someone who appreciates well-designed systems, I can’t believe people’s gross ignorance of their own nation. People are so afraid of the terrible things Trump will do that protests like this happen. And yet, the vast majority of things people are afraid of are things he can’t do. Was I the only person who paid attention in civics class?
The US was founded as a nation as a response to an uprising against an autocrat. Its founders were horrified at the potential for another such autocrat to arise, and they designed their government accordingly. There was to be a strict separation of powers, with mutually opposed groups keeping each other in check. Most importantly, the office of the executive was intentionally crippled. The president was supposed to have very little power. The founders thought that mitigating potential bad leaders was more important than empowering potential good leaders.
So if Trump can’t do these bad things, what’s the problem? Well, the theory that the country was based on is solid. But you know what they say: In theory, there’s no difference between theory and practice. In practice, there is. Perfect, beautiful ideas never survive implementation. In this case, there are no backwards arcs in the state machine.
On paper, Trump can’t do anything too bad. In practice, he can, because previous presidents have set the precedent. People like to make fun of small-c conservatives who want government out of their lives. Libertarians are a favourite scapegoat online, for similar reasons. Every time a president said “we need the power to do X”, a libertarian said “no, we can’t let you do that; your powers are restricted for a reason.” In the case of, say, Obamacare, we looked at the libertarians and said “why do you hate poor people? Why do you want them to die? Can you be so heartless? Can’t you make an exception this one time?” You should have listened to them, in detail. Once a proof of concept is committed to master, it is the new feature. “One” time never is.
Over time, various factions have engaged in special pleading. “We need this superweapon, just this one time. Can’t you see the challenge we’re facing? Are you really going to demand principles when people are suffering?” The same argument turned Rome into a dictatorship, millennia ago. When you shoot your superweapon at the king, you’d best not miss. He can pick it up from your fallen comrades.
May 20, 2016
Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle — a mere counter in a grotesque and knavish game. If the right pressure could be applied to him, he would be cheerfully in favor of polygamy, astrology or cannibalism.
It is the aim of the Bill of Rights, if it has any remaining aim at all, to curb such prehensile gentry. Its function is to set a limitation upon their power to harry and oppress us to their own private profit. The Fathers, in framing it, did not have powerful minorities in mind; what they sought to hobble was simply the majority. But that is a detail. The important thing is that the Bill of Rights sets forth, in the plainest of plain language, the limits beyond which even legislatures may not go. The Supreme Court, in Marbury v. Madison, decided that it was bound to execute that intent, and for a hundred years that doctrine remained the corner-stone of American constitutional law.
H.L. Mencken, The American Mercury, 1930-05.
April 16, 2016
I’m getting weary of the monarchical comparisons, which are a bit of an insult to real monarchs. The Obama model seems to owe more to Judge Dredd, the popular comic-book figure with the power to arrest, convict, sentence and execute as he does what’s necessary to bring hope and change to a dystopian megalopolis. Likewise, President Dredd: “He is the Law, and you’d better believe it!” A contempt for the people and for constitutional and legal restraints is what ties the President’s actions on Thursday night to Eric Holder’s corrupt justice department to Lois Lerner’s corrupt revenue agency to Jonathan Gruber’s corrupt health commissariat (merely to skim the surface of the most recent additions to the unending Obama-scandals document dump).
To express common-or-garden contempt for the will of the people, Obama could have simply repealed another handful of inconvenient paragraphs from Obamacare or made Lois Lerner Attorney-General, but the form of contempt he chose is especially exquisite: “legalizing” millions of foreign law-breakers and setting them on the path to US citizenship. The chief of state has heard the voice of the people and his message to them is: “Yeah, whatever, I can always get another people. Hey, here comes five million or so right now, plus another ten million in chain-migration relatives down the road…”
He is the Law, and you’d better believe it! And, even if you don’t, what are you gonna do about it? Obama has made a bet that in the end a Republican Congress will have no more get-up-and-go than a chronic invalid dependent on armies of undocumented bedpan-cleaners. It has been suggested that Boehner should tell America’s new ConLawProf-in-Chief to go give his State of the Union somewhere else. It would be a symbolic gesture, but symbols are important. In a contemporary North American context, it is not unknown for parliament to assert itself against the head of state: the chippy separatists of Quebec’s “National Assembly”, as part of their make-believe nation-building, have denied the Queen’s viceroy the customary right to give the Speech from the Throne (the Westminster equivalent to the State of the Union) for four decades now. Down the road in Ottawa, in a particularly petulant outburst, Jean Chrétien, the Canadian Prime Minister, denied the Queen herself the opportunity to give the 2002 Speech from the Throne in the federal parliament for no other reason than that he felt she hadn’t given him a good enough seat at her mother’s funeral earlier that year. In actual monarchies, the subjects flip the finger at the sovereign all the time. Yet in a supposed republic of citizen-legislators for the people’s house to assert its authority to the head of state by telling him to take a hike on the State of the Union would be an act of lèse-majesté too appalling even to consider. It would be entirely unreasonable to expect the legislature of the American republic to defend its lawful powers — and those of the people it represents — with the assertiveness of a provincial parliament in Canada.
Mark Steyn, “Elections Matter?”, SteynOnline.com, 2014-11-22.
December 12, 2015
… the other new strategic wrinkle was much worse in that regard: the announcement of a policy for a restored “federal minimum wage.”
Provinces set minimum wages for most employees under the Constitution, but Ottawa has an unused right to set a national minimum in private industries regulated under Part III of the Canada Labour Code. The major categories are banking, interprovincial and international transport, and broadcasting. You may be wondering how many people in these technically complicated lines of business are actually making the minimum wage. In the most recent survey of the federal labour jurisdiction (taken in 2008), the answer arrived at by Statistics Canada was: 416 people. In the entire country.
The New Democrats were pretty clearly counting on the press to foul up the story, and it obliged. Some Postmedia newspapers, for example, wrote headlines implying that the new wage floor was for “federal workers.” Economists, who mostly dislike minimum wages anyway, will probably tear into the NDP for a misleading measure that, to a close approximation, helps nobody. And it probably won’t matter much, as New Democrats go on repeating the words “federal minimum wage” for a year.
Colby Cosh, “How to ignore the NDP’s new talking points”, Maclean’s, 2014-09-18.
November 14, 2015
Charles Murray explains why so many Americans are feeling alienated from their own government:
I have been led to this position by what I believe to be a truth about where America stands: The federal government is no longer “us” but “them.” It is no longer an extension of the people through their elected representatives. It is no longer a republican bulwark against the arbitrary use of power. It has become an entity unto itself, separated from the American people and beyond the effective control of the political process. In this situation, the foundational principles of our nation come into play: The government does not command the blind allegiance of the citizenry. Government is instituted to protect our unalienable rights. The more destructive it becomes of those rights, the less it can call upon our allegiance.
I won’t try to lay out the whole case for concluding that our duty of allegiance has been radically diminished — that takes a few hundred pages. But let me summarize the ways in which the federal government has not simply become bigger and more intrusive since Bill Buckley founded National Review, but has also become “them,” and no longer an extension of “us.”
In 1937, Helvering v. Davis explicitly held that the federal government could spend money on the “general welfare,” establishing that the government’s powers were not limited to those enumerated in the Constitution. In 1938, Carolene Products did what the Ninth Amendment had been intended to prevent — it limited the rights of the American people to those that were explicitly mentioned in the Constitution and its amendments. Making matters worse, the Court also limited the circumstances under which it would protect even those explicitly named rights. In 1942, Wickard v. Filburn completed the reinterpretation of “commerce” so that the commerce clause became, in the words of federal judge Alex Kozinski, the “Hey, you can do anything you feel like” clause.
Momentous as these decisions were, they were arguably not as crucial to the evolution of the federal government from “us” to “them” as the decisions that led to the regulatory state. Until the 1930s, a body of jurisprudence known as the “nondelegation doctrine” had put strict limits on how much power Congress could delegate to the executive branch. The agencies of the executive branch obviously had to be given some latitude to interpret the text of legislation, but Congress was required to specify an “intelligible principle” whenever it passed a law that gave the executive branch a new task. In 1943, National Broadcasting Co. v. United States dispensed with that requirement, holding that it was okay for Congress to tell the Federal Communications Commission (FCC) to write regulations for allocating radio licenses “as public convenience, interest, or necessity requires” — an undefined, and hence unintelligible, principle. And so we now live in a world in which Congress passes laws with grandiose goals, loosely defined, and delegates responsibility for interpreting those goals exclusively to regulatory agencies that have no accountability to the citizenry and only limited accountability to the president of the United States.
The de facto legislative power delegated to regulatory agencies is only one aspect of their illegitimacy. Citizens who have not been hit with an accusation of a violation may not realize how Orwellian the regulatory state has become. If you run afoul of an agency such as the FCC and want to defend yourself, you don’t go to a regular court. You go to an administrative court run by the agency. You don’t get a jury. The case is decided by an administrative judge who is an employee of the agency. You do not need to be found guilty beyond a reasonable doubt, but rather by the loosest of all legal standards, a preponderance of the evidence. The regulatory agency is also free of many of the rules that constrain police and prosecutors in the normal legal system. For example, regulatory agencies are not required to show probable cause for getting a search warrant. A regulatory agency can inspect a property or place of business under broad conditions that it has set for itself.
There’s much more, but it amounts to this: Regulatory agencies, or the regulatory divisions within cabinet agencies, operate as self-contained entities that create de facto laws that Congress would never have passed on an up-or-down vote. They then act as both police and judge in enforcing the laws they have created. It amounts to an extra-legal state within the state.
I have focused on the regulatory state because it now looms so large in daily life as to have provoked a reaction that crosses political divides: American government isn’t supposed to work this way.
September 10, 2015
The enduring strength of both conservatism and libertarianism as intellectual movements is that they acknowledge that they are, in fact, intellectual movements. We not only know what we believe, we know why we believe it. But while liberals know what they believe, they have a hard time explaining why they believe it. That’s because, as E. J. Dionne, Martin Peretz, and other liberals have written, they’ve turned their backs on their own intellectual history. Liberals, in Peretz’s memorable phrase, are “bookless,” so they follow an ideology without knowing why it upholds and cherishes its ideas. As a result, they don’t know when, or how, to subordinate their ideology to larger concerns (and when you cease to be aware that you have an ideology, it doesn’t make you a pragmatist; it makes you a dogmatist).
Driven by feelings more than fact, they seek rationalizations. Or as William Voegeli puts it in his book Never Enough, liberalism has lost its ability to articulate a “limiting principle” to the size, cost, and ambition of government. Indeed, as we saw during the oral arguments before the Supreme Court over Obamacare, this administration is incapable of articulating any principled limit to the apparently infinite powers of the Commerce Clause and the living Constitution.
There’s perhaps no better proof that liberals are terrified of admitting their own ideological aspirations than the effort to mint fresh clichés to preserve the integrity of old ones. That’s the apparent goal of the group No Labels, whose official motto is “Put the Labels Aside. Do What’s Best for America.” (Or at least that’s one of them; for a group that doesn’t like labels, they sure have a lot of mottoes.)
Jonah Goldberg, excerpt from The Tyranny of Clichés, published by National Review, 2012-04-22.
August 28, 2015
Techdirt‘s Mike Masnick points and laughs at a self-described consumerist organization’s attempt to force Google to apply EU law to the rest of the world, by way of an FTC complaint:
If you want an understanding of my general philosophy on business and economics, it’s that companies should focus on serving their customers better. That’s it. It’s a very customer-centric view of capitalism. I think companies that screw over their customers and users will have it come back to bite them, and thus it’s a better strategy for everyone if companies focus on providing good products and services to consumers, without screwing them over. And, I’m super supportive of organizations that focus on holding companies’ feet to the fire when they fail to live up to that promise. Consumerist (owned by Consumer Reports) is really fantastic at this kind of thing, for example. Consumer Watchdog, on the other hand, despite its name, appears to have very little to do with actually protecting consumers’ interests. Instead, it seems like some crazy people who absolutely hate Google, and pretend that they’re “protecting” consumers from Google by attacking the company at every opportunity. If Consumer Watchdog actually had relevant points, that might be useful, but nearly every attack on Google is so ridiculous that all it does is make Consumer Watchdog look like a complete joke and undermine whatever credibility the organization might have.
In the past, we’ve covered an anti-Google video that company put out that contained so many factual errors that it was a complete joke (and was later revealed as nothing more than a stunt to sell some books). Then there was the attempt to argue that Gmail was an illegal wiretap. It’s hard to take the organization seriously when it does that kind of thing.
Its latest, however, takes the crazy to new levels. John Simpson, Consumer Watchdog’s resident “old man yells at cloud” impersonator, recently filed a complaint with the FTC against Google. In it, he not only argues that Google should offer the “Right to be Forgotten” in the US, but says that the failure to do that is an “unfair and deceptive practice.” Really.
As you know by now, since an EU court ruling last year, Google has been forced to enable a right to be forgotten in the EU, in which it will “delink” certain results from the searches on certain names, if the people argue that the links are no longer “relevant.” Some in the EU have been pressing Google to make that “right to be forgotten” global — which Google refuses to do, noting that it would violate the First Amendment in the US and would allow the most restrictive, anti-free speech regime in the world to censor the global internet.
But, apparently John Simpson likes censorship and supporting free speech-destroying regimes. Because he argues Google must allow such censorship in the US. How could Google’s refusal to implement “right to be forgotten” possibly be “deceptive”? Well, in Simpson’s world, it’s because Google presents itself as “being deeply committed to privacy” but then doesn’t abide by a global right to be forgotten. Really.
July 30, 2015
Richard Anderson explains why unlike most mature countries, Canada is unable to amend the constitution:
The Senate is our great constitutional appendix. It gets a bit inflamed from time to time but, a hundred and fifty years in, we’ve generally come to the conclusion that it’s too much of a hassle to get rid of. In other countries, normal nation states, amending a constitution is just one of those things. There’s a convention, people argue about it and eventually some words get swapped in and out of the country’s basic law. The Americans might go so far as to fight a civil war over such things, but for most countries it’s routine stuff.
Having successfully avoided civil wars, insurrections, coup d’etats and other assorted public disturbances, the Canadian project has retained one bizarre character flaw: Our inability to amend the constitution in anything like a sensible manner. For those old enough to have lived through the constitutional wars of the 1970s and 1980s the very mention of the C-word induces terrible flashbacks. Sometimes when I close my eyes I can see Joe Clark talking about amending formulas. In those moments I question the existence of a merciful God.
The latest idea to drift out of the PMO is that Stephen Harper will stop appointing Senators. This is actually quite similar to how the PM approaches maintenance on 24 Sussex Drive. The official residence is almost as old as Canada itself. Unfortunately so is much of the plumbing. The building is literally falling to bits and requires millions in renovations. Being a politician first and a government tenant second, Stephen Harper knows that doing more than the bare minimum to keep up his Ottawa home will provoke shrieks of outrage from the Opposition. Only when the building finally collapses will anything really be done. And at three times the original price.
This same logic will now be applied to the Senate. The PM will stop appointing senators until there is no more Senate. Sounds neat, eh? Except that the Senate is ensconced into the bedrock of our constitutional order. If the number of living breathing Senators drops below quorum the Supreme Court, the real rulers of our fair Dominion, will order the PM to appoint more. Then the PM of the day, perhaps Mr Harper or Mr Mulcair, will shrug their shoulders and do as their bosses tell them.
The only way to get rid of the Senate is to amend the constitution. Like going to the dentist this would be both painful and expensive. Unlike going to the dentist it would also be interminable. Dentists, you see, have golf games. Constitutional lawyers don’t play golf. It would interrupt from their fascinating work of discussing whether or not the power of disallowance is genuinely obsolete. If you don’t understand what that means don’t worry neither do they.
July 14, 2015
There is not very much good to say about the life and career of Vladimir Lenin, but give the pickled old monster this much: He cut through more than two centuries’ worth of bull and straight to the heart of all politics with his simple question: “Who? Whom?” Which is to say: Who acts? Who is acted upon? Even here in the land of the free, meditating upon that question can be an uncomfortable exercise.
The foundation of classical liberalism, and of the American order, is not the rule of law, a written constitution, freedom of speech and worship, one-man/one-vote democracy, or the Christian moral tradition — necessary as those things are. The irreplaceable basis for a prosperous, decent, liberal, stable society is property. Forget Thomas Jefferson’s epicurean flourish — John Locke and the First Continental Congress had it right on the first go-round: “Life, liberty, and property.” Despite the presence of the serial commas in that formulation, these are not really three different things: Perhaps we should render the concept “lifelibertyproperty” the way the physicists write about “spacetime.”
Kevin D. Williamson, “Property and Peace”, National Review, 2014-07-20.
June 30, 2015
At Ace of Spades H.Q., Weirddave explains why — even if you are in favour of Obamacare continuing in its current form — you should be worried that the United States Supreme Court made a huge mistake with the ruling that kept Obamacare alive:
… If it had gone the other way, God knows Congress would have fallen all over itself to to reinstate the subsidy. No, what was so gobsmackingly amazing about the decision was that it was justified on the basis of “intent”. 6 out of 9 justices ignored the black letter written word of law in favor of “intent”
So why is this important? Well, let’s start by asking a simple question: Why has the USA been so prosperous? Expand the scope of the question: Historically, why has the Anglosphere been so successful? If one views all of the countries in the Anglosphere as branches growing off of a British trunk, underneath all of them, providing sustenance and support is one common root:
Rule of Law
Rule of Law is a concept that goes back to Greco-Roman times and earlier. The Bible introduces some Deuteronomic provisions to constrain the king that are perhaps the earliest iterations of the concept. Plato advocated a benevolent monarchy, placing his hopes on the willingness of the king to obey the law, Aristotle firmly rebuked him for such a Utopian concept. Things really got rolling in 1215 with the Magna Carta which limited the power of King John to act unilaterally. Samuel Rutherford turned traditional wisdom on its head with Lex, Rex (“The law is king” as opposed to the traditional Rex, Lex, “The king is law”) Locke discussed the concept in great detail, and the Founding Fathers of the US kept the concept as their guiding star as they wrote the Constitution. In every case, as the concept evolved, society became more prosperous, more just and more stable.
And then along came John Roberts.
So what is Rule of Law? Simply put, Rule of Law means that the laws apply to everyone equally. A law is written. It says what it says, and everyone must obey it. No exceptions. The law applies to everyone, regardless of social status, political position, wealth, situation. The law says that one may not drive drunk. If someone is pulled over and they blow 1.5, it doesn’t matter if they were really sad because their grandfather just died, or if their mother ruled Bartertown. They broke the law, they are arrested and tried. (I do realize that real life isn’t quite as straightforward and often times position, power or wealth DO determine how laws are applied in individual cases, but we’re talking theory here). Rule of Law creates a level playing field for everyone.
Real life example: You want to set up a toilet paper factory. You can set it up in America, where a codified set of laws protects your property rights and sets legal limits on what the government can do to you, or you can set up shop in Venezuela where what you build belongs to a corrupt government and can be taken from you at anytime. Where do you build your factory?
Exactly, and that’s why Wal-Mart carries dozens of different types of toilet paper and they are wiping their asses with pine cones in Caracas.
May 26, 2015
The book is being published in time to mark the tenth anniversary of the Supreme Court’s dreadful Kelo decision:
My new book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain is now in print. It is the first book about the Kelo decision and the massive political backlash it generated, written by a legal scholar. The Grasping Hand is coming out just in time for the tenth anniversary of Kelo on June 23.
Here is a summary from the University of Chicago Press website (the book is also co-published by the Cato Institute):
In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution – even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats.
The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.
May 11, 2015
In The Walrus, Manjushree Thapa explains why Nepal was so badly prepared for the earthquake:
Following the April 25 earthquake, Nepalis have had to learn the value of preparedness in the most painful way possible. In the aftermath, Pushpa Acharya, a Nepali friend at the University of Toronto, observed, “Knowledge was not our problem.” Indeed. We all knew that our country sits on an active fault line, where the subcontinent collided with the Eurasian plate with such force it created the Himalayas. The last big quake took place in 1934. Others have since struck, but none with the force of 1934’s 8.0 or April 25’s 7.9. We knew that a big earthquake was due.
It was our duty to prepare, and though some of us did so individually, as a society we ignored the warnings. In the past ten days, during search and rescue, and then the beginnings of relief, we’ve had to do some hard thinking about how our country could become more responsible going forward. The root problem may seem obvious: Nepal is one of the poorest countries in the world. Its poverty is, however, a symptom of our history of ill governance, and the reason for our national failure to prepare, which has kept us from becoming a functioning democracy.
When the earthquake struck, the country was in a deep and deeply depressing stupor. The governing parties — a coalition of the Nepali Congress Party and the Unified Marxist Leninists — had reached an impasse with Nepal’s thirty-three opposition parties about what kind of constitution to draft. There was no plan for the country as a whole, let alone in the case of an emergency. The drafting of a constitution has preoccupied, confounded, and eluded Nepal’s polity since 2006, when the Maoists ended a ten-year insurgency to join forces with other parties to remove Gyanendra Bir Bikram Shah. Nepal’s king had used the war as an excuse to end a fragile fifteen-year spell of democracy and install his own military-backed rule. A mass movement restored democracy, and the subsequent peace process promised to restructure the country along just and equitable lines through the drafting of a new constitution
April 30, 2015
In City Journal, Myron Magnet reviews a new book by Philip Hamburger on the rise and rise of the regulatory state:
We conservatives like to complain about overregulation and point to this or that destructive rule, but few of us go so far as Philip Hamburger does in his immensely important Is Administrative Law Unlawful?, published last year. A Columbia law professor, Hamburger indicts the entire structure of executive-agency rulemaking as illegitimate. It’s not just the regulations that have to go but the regulators as well, since their job is to fling down the Constitution and dance on it.
For over 400 pages of a 511-page, doorstopper-weight text, Hamburger counts the ways in which the slithery Medusa’s head of executive-branch agencies — from the Interstate Commerce Commission and the National Labor Relations Board to the Environmental Protection Agency and the Consumer Financial Protection Bureau, all spitting out the venom of administrative law — constitutes a flagrant affront to the Constitution. For starters, the Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. So it’s forbidden for Congress to pass a law creating an executive-branch agency that writes rules legally binding on citizens — for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. “The power of the legislative,” as the Founding Fathers’ tutelary political philosopher, John Locke, wrote, is “only to make laws and not to make legislators.” And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it — namely, the power to hand out selective exemptions from its laws, which is what agencies do when they grant waivers.
Second, Constitution architect James Madison, following political theorist Baron de Montesquieu, saw the separation of powers as an essential bulwark of American liberty. But administrative agencies, which make rules, carry them out, and adjudge and punish infractions of them, blend together legislative, executive, and judicial powers in one giant anti-constitutional Cuisinart. Moreover, judicial power is as undelegatable as legislative power, since the Constitution lodges all of it in the judicial branch. So third, while administrative judges may look “just like real judges,” says Hamburger, they are no such thing — and not only because the Constitution makes it impossible for them to be so but also because, unlike real judges, their sole duty, rather than using their independent and expert judgment to carry out the law of the land, is to carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him. As Justice William Howard Taft pronounced, an administrative tribunal is “miscalled a court.”
March 31, 2015
In a normal country, like say Botswana or Mongolia, modernizing a constitution is just one of those things that politicians get around to doing once in a generation or so. It’s no big deal. But then again in these countries, not run by crazy people, updating your basic legal instrument isn’t seen as a threat to national unity. Imagine sitting down with an American or Frenchman and saying, with a straight face, that if they were to attempt to amend their constitutions it would provoke a national unity crisis. They’d think you were nuts or the country in question was some third rate third world banana republic.
Our constitution complex is one of those weird quirks of the national psyche. A nation of accountants who, on the weekends, like to play Russian roulette just to take the edge off. We are a boring country, boring as a matter of principle really, but we decided that when it comes to arcane legal questions we’re willing to blow the whole place up. Just because.
Richard Anderson, “Please God No. Anything But This”, The Gods of the Copybook Headings, 2015-03-23.