When law in America can be made by executive “pen and phone” alone — indeed, by a White House press release — we’re faced starkly with a fundamental constitutional question: Is administrative law unlawful? Answering in the affirmative in this far-reaching, erudite new treatise, Philip Hamburger traces resistance to rule by administrative edict from the Middle Ages to the present. Far from a novel response to modern society and its complexities, executive prerogative has deep roots. It was beaten back by English constitutional ideas in the 17th century and even more decisively by American constitutions in the 18th century, but it reemerged during the Progressive Era and has grown ever since, regardless of the party in power.
In this nation, we have a problem where Congress no longer represents the people. Because our representatives are more concerned about re-election, they have abrogated their authority to an unelected bureaucracy that passes rules We the People have no say over but that have a real effect on our daily lives. When we complain to Congress about these regulations, our representatives can play the good cop and claim they agree with us but there is nothing they can do because regulations are passed by the bad cop, bureaucracy.
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It is time for We the People to stand up and let our voices be heard. No longer can our elected representatives allow an unelected bureaucracy do the job they were elected to do. We live in a republic, which means We the People are entitled to have our representatives vote on the laws that affect our lives.
The new slogan for this movement should be “No regulation without representation.” While some are pushing for a constitutional amendment that requires Congress to have a say in the regulation process, this effort should be extended to all 50 states. Each state should not allow its bureaucracy to pass rules absent the consent of the state legislature.
Ancient regimes were intellectually and morally self contained. They themselves were their own frame of reference for good and evil, better and worse. Their gods were the gods of the city or of the empire. When they worshiped those gods, they essentially worshiped themselves. There was no difference between politics, religion, and society. Hence, there was no basis for individual freedom. The closest to ancient polities in our time, prior to, say, the last forth years or so, was Japan—the world’s largest tribe.
Christianity, which gave medieval regimes their character, which character endured in the Western world up until recent decades, revolutionized life by recognizing each individual’s direct relationship to God—the creator of the universe, the essence of goodness, and hence the one and only standard of right and wrong. This, including Jesus’s mandate to separate duties to God and to Caesar, made it possible for life in the West to be lived on several independent levels. This is (or was) our charter of freedom. As Luther put it: “Be on you knees before God, that you may stand on your feet before men.”
Modern regimes, by denying the existence of God and his laws have, once again, placed their own human authority beyond any challenge but by power. Collapsing the distinction between freedom and power quite simply destroys the autonomy of individuals and of society—hence of freedom.
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In today’s America, right and wrong, better and worse, have become mere appurtenances of partisanship and power.
Is it really so difficult to believe that there is widespread wrongdoing, and widespread lying about it, among U.S. law-enforcement agencies, particularly those in big, Democrat-run cities infamous for the corruption of their other municipal institutions? Why do conservatives find it so plausible — obvious, even — that the IRS and the EPA and the Atlanta public schools are corrupt and self-serving, but somehow believe that the Baltimore police department isn’t?
It is possible that what is really at play here is an emotional response to protest culture. Seeing the Black Lives Matters miscreants and Baltimore rioters on one side of the line, conservatives instinctively want to be on the other side of the line. The same thing happened with the Iraq-war protests: When the dirty hippies take to the barricades, conservatives are drawn to the other side. That led to some bad thinking and poor decision-making about Iraq. Are we making the same mistake with regard to police misconduct and allegations of police misconduct?
Let him with eyes see.
Why conservatives and Republicans should be defensive about the fact that Baltimore, Los Angeles, Cleveland, and Honolulu are misgoverned to various degrees of criminality is a mystery. Conservatives with real political power in those cities are as scarce as hen’s teeth. Could it really be something so simple as the fact that we do not feel comfortable standing on the same side of a bright red line as the malefactors in Ferguson and such opportunists as DeRay Mckesson, now a Baltimore mayoral candidate, and Al Sharpton? Sharpton is a grotesque and one of the most dishonest men in American public life, but that does not mean that the people running Baltimore and its police department aren’t also crooked. Some police officers are indeed heroes. Some are villains. Most are ordinary, time-serving municipal employees like any other, and telling ourselves otherwise is sentimental rubbish.
Libertarians fall into two distinct groups: strict libertarians like Rand Paul and classical liberals such as myself. “Classical liberal” is not a term that rolls off of the tongue. Consequently, “libertarian” is the choice term in popular discourse when discussing policies that favor limited government. Libertarians of all stripes oppose President Obama’s endless attacks on market institutions and the rich. The umbrella term comfortably embraces both strands of libertarian theory vis-à-vis a common intellectual foe.
It is important to understand the differences in views between the strong libertarian and classical liberal position. Serious hard-line libertarian thinkers include Murray Rothbard and Karl Hess. Rothbard believes nonaggression is the sole requirement of a just social order. For Hess, “libertarianism is the view that each man is the absolute owner of his life, to use and dispose of as he sees fit.” There are large kernels of truth in both propositions. It is quite impossible to see how any social order could be maintained if there were no limitations against the use, or threatened use, of force to enslave or butcher other people, which Hess’s proposition of absolute self-ownership strongly counteracts.
Yet the overarching question is how does a group of people move from the Hobbesian “war of all against all” toward a peaceful society? Hess claims that stable institutions are created by “voluntary association and cooperation.” Again, strong libertarians are on solid ground in defending (most) private contracts against government interference, which is why Lochner v. New York (1905), reviled as it is by most constitutional thinkers, was right in striking down New York’s sixty hours per week maximum labor statute. Yet the hard-line libertarian position badly misfires in assuming that any set of voluntary contracts can solve the far larger problem of social order, which, as Rothbard notes, in practice requires each and every citizen to relinquish the use force against all others. Voluntary cooperation cannot secure unanimous consent, because the one violent holdout could upset the peace and tranquility of all others.
The sad experience of history is that high transaction costs and nonstop opportunism wreck the widespread voluntary effort to create a grand social alliance to limit the use of force. Society needs a coercive mechanism strong enough to keep defectors in line, but fair enough to command the allegiance of individuals, who must share the costs of creating that larger and mutually beneficial social order. The social contract that Locke said brought individuals out of the state of nature was one such device. The want of individual consent was displaced by a consciously designed substantive program to protect both liberty and property in ways that left all members of society better off than they were in the state of nature. Only constrained coercion can overcome the holdout problems needed to implement any principle of nonaggression.
The flat tax is preferred because it reduces private incentives to game the tax system and, likewise, the ability of government officials to unfairly target their opponents. The optimal theory of taxation minimizes the distortions created by the need to fund the government activities that maintain public order and supply infrastructure. The classical liberal thus agrees with the hard-line libertarian that progressive taxation, with its endless loopholes, is unsustainable in the long run. At the same time, the classical liberal finds it incomprehensible that anyone would want to condemn all taxes as government theft from a hapless citizenry. The hard-line libertarian’s blanket condemnation of taxes as theft means that he can add nothing to the discussion of which tax should be preferred and why. The classical liberal has a lot to say on that subject against both the hard-line libertarian and the modern progressive.