Synopses & Reviews
Is administrative law unlawful? This provocative question has become all the more significant with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society.
With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitutionand constitutions in generalwere designed to prevent.
With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a perniciousand profoundly unlawfulreturn to dangerous pre-constitutional absolutism.
Review
Separation of Church and State by Philip Hamburger is, perhaps, the most talked about treatise on American church-state relations of the last generation. It is a weighty, thoroughly researched tome that presents a nuanced, provocative thesis and that strikes even seasoned church-state scholars as distinctive from most works on the subject...Hamburger's fresh appraisal of the historical record adds much to our understanding of church-state separation...Few pages in this richly documented and cogently argued book fail to excite reflection or challenge long-held assumptions. Robert Bork - Wall Street Journal
Review
This richly documented and cogently argued book challenges conventional interpretations of separation of church and state as a constitutional standard in American history and promises to reshape the debate on the constitutional and prudential relations between religion and American public life. Daniel L. Dreisbach, American University
Review
Philip Hamburger has, simply, produced the best and most important book ever written on the subject of the separation of church and state in the United States. He has laid to rest the historical credentials of the Jeffersonian myth of the "wall of separation," and shown how the notion of separation gained wide acceptance in the nineteenth century primarily due to the pervasiveness of American anti-Catholicism. He has also destroyed the notion that separation is the only alternative to the union of church and state, and demonstrated that acceptance of separation has in fact undermined the vitality of our original anti-establishment notions of religious freedom. Hamburger underplays the current constitutional implications of his historical arguments, but it is clear that this book will have a profound impact on the current law and politics of church and state. Stanley N. Katz, Princeton University, President, Emeritus, American Council of Learned Societies
Review
Hamburger provides an alternate historical and political understanding concerning the development of the separation concept, relying on 17th-through 19th-century religious arguments and social patterns to challenge our accepted understanding of relationships between church and state...This clear historical analysis will be accessible to anyone interested in U.S. church-state relations and civil liberties. Highly recommended. Steven Puro
Review
This volume presents the fascinating and complex history of interpretations of the First Amendment in the U.S. and argues that the amendment's antiestablishment clause did not mandate separation of church and state. Instead, Hamburger insists that separation, an idea that may mean far more than the absence of establishment, became a constitutional freedom over an extended period of time, largely through fear and prejudice...Recommended. Library Journal
Review
Hamburger has written an extremely important book. His prodigious learning and ingenious interpretations overturn the conventional wisdom, forcing even the most passionate defenders of separationism to recognize how much of the story of religious liberty has taken on mythical dimensions. S. C. Pearson - Choice
Review
[Hamburger] devastates Jefferson's notion of a 'wall of separation' between religion and government, demonstrating that such a notion was utterly idiosyncratic at the time. Strict separation was revived by anti-Catholics in the 19th century and picked up by the court in the 20th, a development for which Justice Hugo Black bore much responsibility. The modern era of judicial hostility to organized religion and its symbols in the public square is directly contrary to what the Framers meant when they prohibited the establishment of religion. Though Mr. Hamburger does not trace the damage done by preposterous decisions in recent decades, this is a marvelous book. Alan Wolfe - Books and Culture
Review
“
Is Administrative Law Unlawful? is a work of the very highest quality, a learned scholarly exegesis setting out the intellectual foundations—in medieval and early modern English constitutional thought—for the proposition that the contemporary American administrative state is profoundly unconstitutional and unlawful. Philip Hamburger’s argument is intricately wrought and forcefully expressed. Its indictment of modern administration in America doubles as a major statement on the virtues of a genuinely constitutional government.”
Review
"With characteristic erudition, Philip Hamburger shows how virtually every aspect of the modern administrative state undermines the Anglo-American legal tradition—or at least that part of the tradition that most informed the American founding. It is a provocative thesis, but one that is amply supported by extensive scholarly argument and fascinating historical study. Hamburger makes an impressive case that modern administrative law owes its lineage to claims of monarchical prerogative and civil law absolutism that were precisely the ideas that the American revolution was trying to reject. This is a tremendously important book."
Review
“An important new book that is very much worth reading."
Review
"The most important book I have read in a long time."
Review
“The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument. . . . Hamburger meticulously (and sometimes laboriously) demonstrates how the modern administrative state revives all the attributes of the royal prerogative and absolute power.”
Review
“A serious work of legal scholarship. . . . This is a book that rewards the reader with a deepened understanding of the Constitution and the challenges that confront us in the task of restoration. . . . The news of the day repeatedly buttresses the powerful case Hamburger makes against the legitimacy of the vast administrative apparatus that does so much to dictate the way we live now. It is a book not only of this season but of many seasons to come.”
Review
“An interesting new work by Philip Hamburger dispenses with the tiresome back and forth between Republicans and Democrats. Instead, it focuses on Washingtons permanent administration—the ever-expanding federal bureaucracies that have come to play a central role in health care, finance, housing and work, and large roles in education, energy and whatever else constitutes the American system. . . . Hamburgers book is filled with details of how the centralisation of power divorced from a popular or court mandate leads to insularity and even insurrection as hopes of efficiency and expertise give way to bureaucratic inertia.”
Synopsis
In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.
Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life. Gradually, these Protestants were joined by theologically liberal, anti-Christian secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of men and women called for separation. Almost all of these Americans feared ecclesiastical authority, particularly that of the Catholic Church, and, in response to their fears, they increasingly perceived religious liberty to require a separation of church from state. American religious liberty was thus redefined and even transformed. In the process, the First Amendment was often used as an instrument of intolerance and discrimination.
Synopsis
In a powerful challenge to conventional wisdom, Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.
Synopsis
Today, administrative law is the usual means used by the federal government to create regulations. Most commentators usually trace the origins of administrative law to the 1930s, seeing it as a response to modern circumstances which could not have been anticipated by the Constitution. Philip Hamburgers provocative book offers a revisionist account that shows administrative law to be, instead, more closely related to the much older tradition of royal prerogative. Rather than a novel power necessitated by modernized society, he shows administrative law to have its roots in an ancient and persistent sort of power, one which enabled rulers to exert their will through a mechanism other than the law. His massive historical account of absolute power, and the responses to it, spans the Middle Ages to the present. Medieval parliaments sporadically attempted to confine the Crown to governing through the law, but the most effective response was the development of constitutional law in the seventeenth century. Englishmen then put an end to binding prerogative powers by concluding that their constitution required their government to rule only through the law and the courts. Hamburger argues that the U.S. Constitution imposed such requirements even more vigorously, but that the prerogative power re-emerged here as the modern administrative state under FDR began to take shape. Since then, administrative law has transformed American government and society. For Hamburger, administrative law represents a kind of absolute power that our Constitutionand constitutions in generalwere designed to prevent.
About the Author
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He is the author of Law and Judicial Duty and Separation of Church and State.
Table of Contents
Acknowledgments
Introduction
I. Late Eighteenth-Century Religious Liberty
1. Separation, Purity, and Anticlericalism
2. Accusations of Separation
3. The Exclusion of the Clergy
4. Freedom from Religious Establishments
II. Early Nineteenth-Century Republicanism
5. Demands for Separation: Separating Federalist Clergy from Republican Politics
6. Keeping Religion Out of Politics and Making Politics Religious
7. Jefferson and the Baptists: Separation Proposed and Ignored as a Constitutional Principle
III. Mid-Nineteenth-Century Americanism
8. A Theologically Liberal, Anti-Catholic, and American Principle
9. Separations in Society
10. Clerical Doubts and Popular Protestant Support
IV. Late Nineteenth- and Twentieth-Century Constitutional Law
11. Amendment
12. Interpretation
13. Differences
14. An American Constitutional Right
Conclusion
Index