The incompatibility of each with anything else

Writing in City Journal, Theodore Dalrymple maintains that Sayyid Qutb’s Milestones has a deep imprint of Marxism & Leninism upon it.  From The Persistence of Ideology:

Just as in Marx only the proletariat bears the whole of humanity’s interests, so in Qutb only Muslims (true ones, that is) do. Everyone else is a factionalist. In Qutb’s conception, the state withers away under Islam, just as it does—according to Marx—under Communism, once the true form is established. In Marx, the withering away comes about because there are no sectional material interests left that require a state to enforce them; in Qutb, there is no sectional interest left once true Islam is established because everyone obeys God’s law without the need for interpretation and therefore for interpreters. And when all obey God’s law, no conflict can arise because the law is perfect; therefore there is no need for a state apparatus

Like Lenin, Qutb thought that violence would be necessary against the ruling class (of bourgeois in Lenin’s case, unbelievers in Qutb’s): “Those who have usurped the authority of God and are oppressing God’s creatures are not going to give up their power merely through preaching.” Again like Lenin, Qutb believed that until human authority disappeared, the leader’s authority must be complete. Referring to “the Arab” of the Meccan period—an age whose moral qualities he wants to restore—Qutb says: “He was to be trained to follow the discipline of a community which is under the direction of a leader, and to refer to this leader in every matter and to obey his injunctions, even though they might be against his habit or taste.” Not much there with which Lenin could have disagreed. The British Stalinist historian Eric Hobsbawm wrote of himself: “The Party had the first, or more precisely, the only real claim on our lives. . . . Whatever it had ordered, we would have obeyed.”

Qutb is as explicit as Lenin that his party should be a vanguard and not a mass party, for only a vanguard will prove sufficiently dedicated to bring about the revolution. And like Leninism, Qutb’s Islamism is dialectical:

[Islam] does not face practical problems with abstract theories, nor does it confront various stages with unchangeable means. Those who talk about Jihaad in Islam and quote Qur’anic verses do not take into account this aspect, nor do they understand the nature of the various stages through which the movement develops, or the relationship of the verses revealed at various occasions with each stage.

Compare this with Lenin’s Left-Wing Communism, an Infantile Disorder:

Right doctrinairism persisted in recognizing only the old forms, and became utterly bankrupt, for it did not notice the new content. Left doctrinairism persists in the unconditional repudiation of certain old forms, failing to see that the new content is forcing its way through all and sundry forms, that it is our duty as Communists to master all forms, to learn how, with the maximum rapidity, to supplement one form with another, to substitute one for another, and to adapt our tactics to any such change that does not come from our class or from our efforts.

There are many other parallels between Leninism and Qutb’s Islamism, among them the incompatibility of each with anything else, entailing a fight to the finish supposedly followed by permanent bliss for the whole of mankind; a tension between complete determinism (by history and by God, respectively) and the call to intense activism; and the view that only with the installation of their systems does Man become truly himself. For Qutb’s worldview, therefore, the term Islamo-Leninism would be a more accurate description than Islamofascism.

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The line dividing good and evil cuts through

From the White House twitter feed:

“People like this fail…because the future is always won by those who build, not destroy.” — President Obama on ISIL #Iraq  12:55 PM – 20 Aug 2014

Excerpt from the response from Mollie Hemmingway:

See, there are conflicting ways of looking at man’s nature — the distinguishing characteristics we all have. The Founding Fathers of this country were part of a long line of people who acknowledged that, well, evil exists and that men are tempted toward it. This is an important part of understanding why they set up a government of checks and balances. Progressives, as their self-given label suggests, believe that human nature can change, if we can speak of nature at all. And not just change but be perfected. They frequently see government as the means to such transformation into a perfect society.

That’s why they say 3) unbelievably inane things such as, “you’re on the wrong side of history.” Or “The future is always won by those who build, not destroy.” That is literally Mickey Mouse philosophy. And I don’t mean that in a good way.

President Obama’s utopian fantasy of “the future” “always” being “won by those who build, not destroy” is just obviously and resoundingly false, for better or worse. I mean, define “future.” And define “winning” and “building vs. destroying.” Tamerlane had tremendous success destroying and slaughtering his enemies — for most of a century. And World War II didn’t end by building up Nagasaki. There are good winners and bad winners littered throughout history.

What’s more, this “wrong side of history” nonsense is nothing more than a religious belief in supernatural causality. It implies that history isn’t shaped by men but, instead, by outside inevitable forces that can always be counted on. If this were so, we wouldn’t need to work so hard to raise up good children and fight the evils all around us.

Man has a nature, obviously, but man’s nature doesn’t have a history. That’s the whole point. We must always be on guard against tyranny, be it the kind we see in ISIS or the kind we see in our own hearts. That line from Alexander Solzhenitsyn in The Gulag Archipelago, a book about the horrors of the Soviet forced labor camp system, comes in handy. Describing the basic error in another well-known form of progressivism’s thinking — that some men are good and some men are bad — he wrote:

If only that were true! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being.

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Libertarian moment?

Interesting thoughts about the current “Libertarian moment,” from Jonah Goldberg:

Let’s assume that Draper is right. This is the libertarians’ moment. Well, I’ve got bad news for my libertarian friends. That moment will last exactly as long as, and no longer than, it takes for libertarians to actually take power. The instant there is a libertarian president or a libertarian majority in Congress, liberals will immediately and passionately denounce libertarianism as evil, cruel, sexist, and racist. This is the story of progressivism and it will never change. Any non-progressive movement that gains power becomes The Enemy. If Rand Paul is the nominee, I guarantee you people will look back on Draper’s piece as a set up. Liberals do this all the time. They designate out-of-power factions as the good conservatives or good right-wingers, because that makes them sound open-minded (“I don’t hate all conservatives, just the ones in charge.”). But then once they have a chance of seeing their ideas implemented, the fearmongering begins. If Rand Paul’s the nominee, the New York Times will be bludgeoning us with bones from his father’s closet until Paul is a Klansman. Remember, this is the crowd that told us Mitt Romney gave some woman cancer. People forget that liberals loved neoconservatism in the 1990s when it was out of power. Once it was in power (or perceived to be) under George W. Bush, it became foreign and scary and “Straussian.” Today green-eyeshade Republicanism of the Nixon-(Poppa) Bush variety is all the rage. But when Nixon and Bush were president, liberals shrieked “Fascism!” Liberal nostalgia for Reagan or Goldwater is remarkably hard to reconcile with the way liberals treated Reagan and Goldwater when they were in power.  

Progressivism, stripped of its philosophical flare is ultimately and irreducibly about power. Any idea, movement, or politician that threatens the power of progressives and the(ir) administrative state will be cast as the greatest evil in the land. Libertarians who think otherwise are betraying their own anti-utopian creed.

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Problem: “the State” is a unicorn

Implicit in the argument that government must step in whenever there is “market failure” is the notion that the a political process composed of humans won’t be rife with horse-trading and log-rolling and will not experience “government failure.”  Or as Michael Munger says in the attached, “this very realization—that people who favor expansion of government imagine a State different from the one possible in the physical world—has been a core part of the argument made by classical liberals for at least three hundred years.”

From Unicorn Governance by Michael Munger

Problem: “the State” is a unicorn

When I am discussing the State with my colleagues at Duke, it’s not long before I realize that, for them, almost without exception, the State is a unicorn. I come from the Public Choice tradition, which tends to emphasize consequentialist arguments more than natural rights, and so the distinction is particularly important for me. My friends generally dislike politicians, find democracy messy and distasteful, and object to the brutality and coercive excesses of foreign wars, the war on drugs, and the spying of the NSA

But their solution is, without exception, to expand the power of “the State.” That seems literally insane to me—a non sequitur of such monstrous proportions that I had trouble taking it seriously.

Then I realized that they want a kind of unicorn, a State that has the properties, motivations, knowledge, and abilities that they can imagine for it. When I finally realized that we were talking past each other, I felt kind of dumb. Because essentially this very realization—that people who favor expansion of government imagine a State different from the one possible in the physical world—has been a core part of the argument made by classical liberals for at least three hundred years

More recently, Ludwig von Mises and F. A. Hayek recognized the problem of unicorns rather deftly. In Epistemological Problems of Economics, Mises said: 

Scarcely anyone interests himself in social problems without being led to do so by the desire to see reforms enacted. In almost all cases, before anyone begins to study the science, he has already decided on definite reforms that he wants to put through. Only a few have the strength to accept the knowledge that these reforms are impracticable and to draw all the inferences from it. Most men endure the sacrifice of the intellect more easily than the sacrifice of their daydreams. They cannot bear that their utopias should run aground on the unalterable necessities of human existence. What they yearn for is another reality different from the one given in this world … They wish to be free of a universe of whose order they do not approve.  

Perhaps the most famous, and devastating, version of “skewer the unicorn” is Hayek’s, when he said in The Fatal Conceit that “the curious task of economics is to demonstrate to men how little they really know about what they imagine they can design.”

The Munger test

In debates, I have found that it is useful to describe this problem as the “unicorn problem,” precisely because it exposes a fatal weakness in the argument for statism. If you want to advocate the use of unicorns as motors for public transit, it is important that unicorns actually exist, rather than only existing in your imagination. People immediately understand why relying on imaginary creatures would be a problem in practical mass transit.

But they may not immediately see why “the State” that they can imagine is a unicorn. So, to help them, I propose what I (immodestly) call “the Munger test.”  

Go ahead, make your argument for what you want the State to do, and what you want the State to be in charge of.

Then, go back and look at your statement. Everywhere you said “the State” delete that phrase and replace it with “politicians I actually know, running in electoral systems with voters and interest groups that actually exist.”

If you still believe your statement, then we have something to talk about.

This leads to loads of fun, believe me. When someone says, “The State should be in charge of hundreds of thousands of heavily armed troops, with the authority to use that coercive power,” ask them to take out the unicorn (“The State”) and replace it with George W. Bush. How do you like it now?

If someone says, “The State should be able to choose subsidies and taxes to change the incentives people face in deciding what energy sources to use,” ask them to remove “The State” and replace it with “senators from states that rely on coal, oil, or corn ethanol for income.” Still sound like a good idea?

How about, “The State should make rules for regulating sales of high performance electric cars.” Now, the switch: “Representatives from Michigan and other states that produce parts for internal combustion engines should be in charge of regulating Tesla Motors.”  Gosh, maybe not …

In my experience, we spend too much time fighting with our opponents about their unicorns. That is, we claim that the unicorn/State itself is evil, and cannot be tamed in a way that’s consistent with liberty. The very mental existence of the unicorn is the target of our arguments. 

The problem, of course, is that the unicorn they imagine is wise, benevolent, and omnipotent. To tell them that their imaginations are wrong is useless. So long as we insist that our opponents are mistaken about the properties of “the State”—which doesn’t exist in the first place, at least not in the way that statists imagine—then we will lose the attention of many sympathetic people who are primarily interested in consequences.

To paraphrase Hayek, then, the curious task of the liberty movement is to persuade citizens that our opponents are the idealistic ones, because they believe in unicorns. They understand very little about the State that they imagine they can design.

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The hopeless reality that results from wishful thinking

Who Lost the Cities? Kevin D. Williamson says “there is more wrong with Ferguson than the Brown case.”

The Reverend Jesse Jackson is, to the surprise of all thinking people, right about something: “A spark has exploded,” he said, referring to the protests and violence in Ferguson, Mo. “When you look at what sparked riots in the Sixties, it has always been some combination of poverty, which was the fuel, and then some oppressive police tactic. It was the same in Newark, in Chicago, in Detroit, in Los Angeles. It’s symptomatic of a national crisis of urban abandonment and repression, seen in Chicago.”

A question for the Reverend Jackson: Who has been running the show in Newark, in Chicago, in Detroit, and in Los Angeles for a great long while now? The answer is: People who see the world in much the same way as does the Reverend Jackson, who take the same view of government, who support the same policies, and who suffer from the same biases.

This is not intended to be a cheap partisan shot. The Democratic party institutionally certainly has its defects, the chronicle of which could fill several unreadable volumes, but the more important and more fundamental question here is one of philosophy and policy. Newark, Detroit, Chicago, Los Angeles — and Philadelphia, Cleveland, and a dozen or more other cities — have a great deal in common: They are the places in which the progressive vision of government has reached its fullest expressions. They are the hopeless reality that results from wishful thinking.

Progressives have “spent a generation” imposing taxes, protecting a unionized cartel system of public education, burdening businesses, and undermining stable family arrangements as though people couldn’t relocate and there’d be no social cost.

And they did so while adhering to a political philosophy that holds that the state, not the family or the market, is the central actor in our lives, that the interests of private parties — be they taxpayers or businesses — can and indeed must be subordinated to the state’s interests, as though individuals and families were nothing more than gears in the great machine of politics. The philosophy of abusive eminent domain, government monopolies, and opportunistic taxation is also the philosophy of police brutality, the repression of free speech and other constitutional rights, and economic despair. Frank Rizzo was not a paradox — he was an inevitability. When life is reduced to the terms in which it is lived in the poorest and most neglected parts of Chicago or Detroit, the welfare state is the police state. Why should we expect the agents of the government who carry guns and badges to be in general better behaved than those at the IRS or the National Labor Relations Board? We have city councils that conduct their affairs in convenient secrecy and put their own interests above those of the communities that they allege to serve, and yet we naïvely think that when that self-serving process is used to hire a police commissioner or to organize a police department, then we’ll get saints and Einsteins out of all that muck.

Mr. Williamson writes that “the more progressive the city, the worse a place it is to be poor and/or black” and asks “where have our few urban success stories come from?”

We saw a dramatic turnabout in crime and public disorder in New York under Republican Rudy Giuliani, and we’ve seen periods of relatively good governance in two-party cities such as San Diego. At the moment, our most prosperous cities are those such as Houston, cities that are themselves Democrat-dominated but embedded in heavily Republican metropolitan areas or states, and which govern in a way that is much friendlier to enterprise and middle-class interests than is the style that has long predominated in places such as Philadelphia or Detroit.

The Reverend Jackson should not be surprised that places such as Ferguson, Mo., have feckless police departments. He himself has spent his career helping to ensure that they have feckless schools, self-serving bureaucracies, rapacious public-sector unions pillaging the municipal fisc, and malevolent political leadership that is by no means above exploiting racial sentiment in order to hold on to power. His allies have been running U.S. cities for a generation, and it takes a considerable measure of brass for him to come in decrying the results as though he had no hand in them.

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Russia’s timeless Smerdyakovism

A good friend of mine posted a review of The Two Abysses of the Soul on Facebook. It was excellent so I’ve decided to excerpt it here, without comment.

WHEN RUSSIA AMPUTATED CRIMEA from Ukraine earlier this year, expertly swift as the stroke was, the pain was not just local. It was felt right away throughout Eastern Europe, from Warsaw to Bucharest to Vilnius to Riga. Indeed, this was a pain that brought back the memory of older, bigger wounds, which people in the region thought they had safely forgotten about. Always an aggressive, expansionist neighbor, the Russian bear, whenever it had the chance, didn’t hesitate to swallow up, in whole or in part, smaller neighboring countries. Little wonder that the latter ended up perceiving Russia as nothing but a realm of destruction. Joseph Conrad, who experienced the Russian empire’s insatiable land hunger firsthand, in his native Poland, openly regarded it as an empire of nothingness. In “Autocracy and War” (1905), for example, he wrote that from Russia’s inception “the brutal destruction of dignity, of truth, of rectitude, of all that is faithful in human nature has been made the imperative condition of her existence.” Under the oppressive shadow of Russian autocracy “nothing could grow.” Some eight decades later, in “The Tragedy of Central Europe” (1984), Milan Kundera would make a similar point: when Russians brought totalitarianism to his country “they did everything possible to destroy Czech culture.” Indeed, for him, “totalitarian Russian civilization is the radical negation of the modern West.”

Vladimir Putin’s sudden decision to start slicing up Ukraine must have reminded East Europeans of Russia’s traditional expansionism, but also of something else, something even worse. For there are still vivid in Eastern Europe’s collective memory episodes of Russian brutality so ferocious, so nightmarish that they can’t have anything to do with politics, not even with its most cynical variety. No matter how you look at them, even within a logic of repression, these acts just don’t make sense; they are too extreme to serve any punitive or preventive function — or any other rational purpose, for that matter.

There are works of literature that transcend aesthetics, literary history, and craftsmanship, and give us access to something deeper and more consequential. These works are no longer about their individual authors: through them something important about the collective psyche is captured and given expression. Don Quixote is one such work. Miguel de Unamuno thought that Cervantes’s novel was nothing less than the autobiography of Spain itself. Thomas Mann wanted his Doctor Faustus to be read in the same spirit. He hoped that, by writing this book, he would find out what exactly — in Germany’s history, culture, and philosophy — could bring forth something as monstrous as Nazism. The Brothers Karamazov, too, must be such a work. One feels compelled — especially when one comes from Eastern Europe, which has had its share of brushing with the two abysses of the Russian soul — to look into Dostoevsky’s novel for answers to bigger questions about Russia’s history and presence in the world.

Toward the end of The Brothers Karamazov, as the prosecutor Ippolit Kirillovich makes his case for Dmitri Karamazov’s condemnation, he brings up the image of two abysses between which the defendant, in his view, is caught. One is the “abyss beneath us, an abyss of the lowest and foulest degradation,” while the other is “the abyss above us, an abyss of lofty ideals.” “Two abysses, gentlemen,” says the prosecutor, “in one and the same moment — without that […] our existence is incomplete.”

This image of the two intertwined abysses can be said to be a picture of Russia itself. The basest and the highest, the most despicable and the noblest, profanity and sainthood, total cynicism and winged idealism, all meet here.

The high point of a symbolic reading of The Brothers Karamazov, however, is the lackey Smerdyakov. To many readers this may seem surprising: in the novel, his is one of the most washed-out faces. We can’t really “read” Smerdyakov. He may or may not be Fyodor Pavlovich’s bastard son (and thus one of the brothers Karamazov); he is inconspicuous, elusive, slippery, always hiding, always doing things on the sly. What’s remarkable about him is that he is so unremarkable. And yet behind this mask of anonymity there lies something frightening: a compulsion to do evil for its own sake. When Smerdyakov is introduced, we learn of him that “as a child he was fond of hanging cats and then burying them with ceremony.” Why did he kill the cats? Just because. As he grows up he gets better and better at gratuitous evil. Now an adult, Smerdyakov teaches kids in the neighborhood a certain trick: “take a piece of bread, […] stick a pin in it, and toss it to some yard dog, the kind that’s so hungry it will swallow whatever it gets without chewing it, and then watch what happens.” Why torture the dogs? Why not? Eventually Smerdyakov develops this into a systematic, coherent behavior. He kills Fyodor Pavlovich without any clear motive; he plans the murder to the last detail and commits it in cold blood, but we don’t know why. He kills just because.

Smerdyakovism is an obscure, yet tremendous force that runs deep throughout Russian history. Its basic principle is formulated succinctly by the lackey himself: “The Russian people need thrashing.” Why? Just because. Smerdyakovism flares up especially in the form of leaders and institutions that rule through terror alone; repression for the sake of repression. Its impact is overwhelming, its memory traumatic, and its social effects always paralyzing. Joseph Conrad sees “something inhuman,” from another world, in these Smerdyakovian institutions. The government of Tsarist Russia, relying on an omnipresent, omnipotent secret police, and “arrogating to itself the supreme power to torment and slaughter the bodies of its subjects like a God-sent scourge, has been most cruel to those whom it allowed to live under the shadow of its dispensation.” And that was just the beginning.

It was Stalin who brought Smerdyakovism to perfection.

The more fascinating the philosophical vistas opened up by The Brothers Karamazov, the more puzzling its author. Dostoevsky is a complicated case. As a creative artist, he is as insightful as it gets. He has given us access to regions of the human soul that few before or after him have. He is bold, visionary, and uncannily prophetic. As a novelist, Dostoevsky is a most generous demiurge: each of his novels emerges as a universe in its own right, a polyphonic world where characters have their distinct voices, independent from their author’s. Yet as a journalist Dostoevsky can be embarrassing. He was narrow-minded, often mediocre, and parochial, when not openly xenophobic and anti-Semitic. This Dostoevsky — the nationalist, the inveterate Slavophile for whom Russia was a “God-bearing country” that had some natural right over others — would have likely approved of Putin’s efforts to save Ukraine from the paws of the godless West. Ever since he died Dostoevsky has not ceased to supply Russia’s political establishment with ideas, one fancier than the next.

We should not be so surprised, though. For that, too, is in The Brothers Karamazov. Throughout the novel, Ivan toys with the idea that “if God does not exist, then everything is permitted.” He drops it carelessly in conversations so that any idiot can pick it up and use it. Then, one day, Smerdyakov tells him that he just used it to murder his father. The killing “was done in the most natural manner, sir, according to those same words of yours,” says the lackey, barely containing, we surmise, sardonic laughter. Smerdyakov is of course lying — he killed Fyodor Pavlovich just because — but his mockery of Ivan’s idea is real. Mocking philosophical ideas is another facet of Russia.

Putin’s spin doctors are always ready to connect his politics to a line of Slavophile thought that runs deep in Russia and leads straight to Dostoevsky himself. Indeed, Putin is often seen crossing himself in the presence of Orthodox clergy and lighting candles in the midst of pious, simple Russian folk. Cameras are always close at hand to capture his churchgoing, just as they are to seize his tiger hunting, horse riding, crane saving, reindeer feeding, topless fishing, tank driving, or jet flying. Putin must be laughing like mad at Dostoevsky’s Slavophilia, just as Smerdyakov was laughing at Ivan’s philosophy. For Putin cares as much about ideas (Slavophile or otherwise) as he does about the tigers he kills.

Putin can be a politician, a thinker, a hunter, a fisherman, a hockey player, a fighter pilot — he can be anything he likes because he is nothing in particular. “He is an excellent imitator,” writes Anna Politkovskaya. “He is adept at wearing other people’s clothes, and many are taken in by this performance.” Journalists have often noticed how difficult it is to “read” Putin, since he is always so slippery. Yet for any serious reader of The Brothers Karamazov this is something familiar. Featurelessness itself can be a feature — that’s one of the indications that you are in Smerdyakov’s presence.

Putin, too, is Smerdyakov. The institution that created him (the KGB) is one of the most Smerdyakovian institutions ever devised. His unapologetic defense of the Soviet Union and his attempts to revive it, his recycling of the Stalinist propaganda machine, the silencing of human rights movements all over Russia, the manner in which he annihilates his opponents — all are signs that Smerdyakovism enjoys a new life in today’s Russia. Most significant of all, however, is Putin’s recent vivisection of Ukraine; Smerdyakov’s signature is all over it. An army of faceless, nameless, insignia-less “little green men” who steal themselves into the country under the cover of night and, before anyone knows it, cut off a piece of it. Since they do everything on the sly, and the whole operation looks more Mafia-like than military, people liken Putin’s army to a gang of thugs. That’s inaccurate: the “little green men” are not thugs, they are Smerdyakovs in action. There is nothing fake about them; their modus operandi is the lackey’s 100 percent.

To be sure, Vladimir Vladimirovich Putin is not Joseph Vissarionovich Stalin. They are both Smerdyakovian, but, by its very nature, Smerdyakovism is protheic, multidimensional, complex. Stalin’s Smerdykovism manifests itself especially in his “just because” acts, while Putin’s in his anonymous, cowardly mode of operation. But that’s little consolation to an Eastern Europe traumatized for centuries by its stronger, always erratic, always drunk-like neighbor. For these countries the danger does not necessarily come from Putin or Stalin personally, but from Russia’s timeless Smerdyakovism, of which they are only temporary embodiments.

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Book review: Is Administrative Law Unlawful?

Scott Johnson reviews this new (and timely) book from a professor at Columbia Law School and concludes:  Obama’s exercise of prerogative power is not progressive, it’s a throwback to the British Monarchy.

The author, a distinguished scholar specializing in legal history, covers a lot of theory and history – from Magna Carta through recent SCOTUS decisions.  Here’s an excerpt that omits those details to summarize the thrust of his argument.  But if you enjoy that sort of thing I encourage you to click through.

indexEvery day the headlines bring news of the Obama administration’s rule by executive edict. From the regularization of illegal-immigrant DREAMers, to the rewriting of Obamacare and of federal drug laws, to the imposition of onerous environmental laws by agency regulation, the administration exercises or threatens to exercise executive power to write and rewrite and waive the duly enacted law of the land. Now Obama threatens to regularize the immigration status of millions more illegal immigrants by decree as well.

The practice of rule by decree is of dubious constitutionality, to say the least, and Obama is extending it to the breaking point. While of dubious constitutionality, the practice is not without precedent. The precedent, however, is the prerogative power claimed in the past by the British king. It is the power against which the British revolted in the Glorious Revolution of 1688 and against which we revolted in 1776.

Now comes Professor Philip Hamburger with a serious work of legal scholarship on the return of the prerogative power to our government. The power returns in the dry-as-dust form of “administrative law,” reflecting the agency form of government. Administrative law has not been a matter of substantial intellectual controversy for a long time. Professor Hamburger comes not to bring peace, but rather a sword of understanding and ultimately of action. He means for us to understand what we have lost or are losing.

To adapt the adage misattributed to Trotsky that is achieving the status of a cliché, you may not be interested in administrative law, but administrative law is interested in you. Hamburger declares that although administrative law is unrecognized by the Constitution, it “has become the government’s primary mode of controlling Americans.” He observes that “administrative law has avoided much rancor because its burdens have been felt mostly by corporations.” This is where you come in: “Increasingly, however, administrative law has extended its reach to individuals. The entire society therefore now has opportunities to feel its hard edge.”

In this form of government, Congress delegates its legislative authority to an administrative agency in the executive branch. The agency promulgates regulations with the binding force of law. It prosecutes citizens for violating the regulations. It also acts as the judge and jury in prosecutions it brings. The agencies therefore combine legislative, executive, and judicial functions in the same body

What the Constitution carefully puts asunder into three branches, administrative law has come to join in unholy union. As it was meant to do by its progressive advocates, it defeats the separation of powers

The regime of administrative law depends to a great extent on Congress’s delegation of its lawmaking authority to these administrative agencies. The Supreme Court has purported to limit Congress’s authority to delegate its lawmaking power under an extremely lenient nondelegation doctrine (Congress’s lawmaking delegation must articulate an “intelligible principle”). The last time it enforced the doctrine to strike down a statute was in 1935… The Court’s history to the contrary notwithstanding, Hamburger argues in a key chapter that Congress’s delegation of lawmaking authority is flatly unconstitutional; this argument is central to his indictment of administrative law… Hamburger persuades me completely on this important point, but he is a voice crying in the wilderness.


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