Purchasing Submission: Conditions, Power, and Liberty
by Philip Hamburger
Harvard University Press, 2021, 320 pp.
Philip Hamburger has actually made a revolutionary contribution to American constitutional law. He shows that what is frequently regarded as a narrow topic, “unconstitutional conditions,” of interest only to specialists, remains in fact essential to comprehending our contemporary system of government and furthermore that its abuse postures grave dangers to liberty.
We should not be amazed that Hamburger, who teaches at Columbia Law School, has made such a revolutionary contribution, as this is not the very first time he has actually done it. In Separation of Church and State, he showed that the very first modification does not prescribe Jefferson’s “wall of separation,” and the “yes” answer he provided to Is Administrative Law Unlawful? blasted away the abuses of the regulatory state, much to the dismay of Adrian Vermeule and other centralizers.
Libertarian readers can best understand what Hamburger does in Acquiring Submission by thinking about the limitations of two ideas we often stress. To some libertarians, agreements are basic, and voluntary bargains in between consenting persons are the amount and compound of social interaction. Murray Rothbard did not view the matter that way, though, and for him contracts need to be made within the structure of a law code based not on contract however on natural law. If you compare his The Ethics of Liberty with David Friedman’s The Equipment of Freedom, you will see the difference in between a libertarianism founded on natural law and one which includes contracts “all the way down.”
Hamburger is not a libertarian, to the contrary arguing for constitutional federal government, based upon an “originalist” method, which he believes with justification to offer much better protection for liberty than the system that now prevails in America; however his view of law is similar to Rothbard’s. Constitutional law is not based on deals in between individuals: “The Constitution … can not be modified or excused by the approval of states or personal individuals … Nowadays, it is not denied that the Constitution is a law, however it is typically assumed that people, organizations, and states, by their authorization, can relieve the federal government of its constitutional limits. The Constitution’s limits on federal government, nevertheless, are not simply contractual terms” (pp. 153– 54).
In like fashion, rights are fixed and can not be quit in return for advantages. “One reason permission has been so commonly considered a constitutional solvent is that rights are frequently viewed as simply personal spheres of freedom and therefore tradeable commodities … From this point of view, totally free speech and other humans rights are personal goods– no more or less than a used automobile or old rug, which individuals can bargain away as they please … However humans rights are not merely personal claims; more broadly, they are legal limitations on government” (pp. 155– 56).
We now require to consider one more concept to have the background to comprehend the thesis of Hamburger’s book, and this concept pertains to the 2nd concept stressed by libertarians, coercion, and its limits. From a libertarian viewpoint, so long as you do not use or threaten force versus the life, liberty, and residential or commercial property of other individuals, you are exempt to other limitations. You are free to encourage them through offers to do as you wish.
Hamburger thinks that it is a mistake to apply this mindset to the government, and this leads to the book’s essence. Frequently, the federal government induces individuals to do things by making them conditional offers. For instance, scientists will be provided grant money, supplied that they follow standards that the government sets out. The conditional offer need not involve payments, as in cases of plea deals, where offenders in return for waiving a jury trial are used a lighter sentence.
You may at first believe that, reserving whether government is genuine at all, these deals are all right. After all, people are totally free to accept or decline them, given that, by hypothesis, the government won’t use force to make them accept its deal. According to a dominant, though not completely undisputed, position, this is right: only conditions that directly oppose the Constitution are eliminated. For instance, the government might not offer a church money in return for not teaching that same-sex marital relationship is wrong, due to the fact that this would breach the First Amendment; but otherwise, the field is clear.
We are now in a position to comprehend Hamburger’s primary thesis. He thinks that the government is not constitutionally free to make conditional offers that extend its powers beyond the limits recommended by the Constitution, even if these deals do not on their face break its arrangements. The federal government needs to achieve its ends with the means offered it by the Constitution and can not extend its powers through offers, all the more so as, owing to variations in power, impact, and knowledge between the government and civilians, it is really challenging for individuals to decline the deals.
By the usage of such deals, the nature of the government has actually been modified from the rigorous limitations set forward in the Constitution, and in some circumstances, the extension has had drastic effects. “Instead of provide money or some other opportunity in exchange for a condition, companies in some cases threaten regulative trouble till they get submission. The government in this way frequently enforces conditions in ways that are challenging to identify from extortion. Bad as this is, the extortion is even worse when the government threatens regulatory trouble to secure consent to regulatory conditions. The resulting extortion is twice as regulative– both in the pressure to send and in the resulting submission to further guideline” (p. 221).
And even this is not the worst of it. “This book has actually saved the worst for last. Not content to utilize conditions to control those from whom it protects approval, the government asks consenting states and personal institutions to control others. The federal government uses conditions to turn the states and personal institutions into representatives for regulating Americans– frequently even for enforcing unconstitutional constraints” (p. 233). A case of this kind that particularly troubles the author is that the Health and Human Provider Department of the federal government needs universities that get money for “human topics research study” to develop institutional evaluation boards to authorize all research study in this area, and these boards have typically acted to hinder free speech and academic flexibility. In one circumstances, a law professor who is a buddy of the author might not release an article since he had failed to secure the previous approval of his university’s institutional evaluation board, even though his research study was not directly associated to the ostensible required of the board. The board claimed the power to authorize all research done at that university, and had he published the short article in defiance it, by his own estimate his profession would have come to an end.
Hamburger cautioned in his earlier work of the threats of administrative law, but conditional offers in his view present an even graver hazard to liberty. Hamburger should have the thanks of all students of the Constitution for his elaborately argued book of tremendous learning, composed in exceptional design and manifesting a passion for liberty.