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The Real Threat to Freedom

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One of the blessings of being a law professor is the opportunity to meet sharp minds and learn from them.

One of those minds belongs to Ilan Wurman, formerly head of the Federalist Society at Stanford Law School and now a clerk to Judge Jerry Smith of the Fifth Circuit. In the Weekly Standard, Ilan has written a review of Columbia Law Prof. Philip Hamburger's brilliant new book, "Is Administrative Law Unlawful?"

Much of what the Left (and libertarians) say about criminal law focuses on the cops and prosecutors as the signal threat to the freedom of American citizens.  This is so much baloney.  For whatever else might be said of criminal law, (1) imprisonment is easy to avoid by living a normal, honest life (which is why the overwhelming majority of Americans have never been in prison); and (2) if you get accused of a serious crime (the kind that, realistically, can get you a prison sentence), you have the right every single time to demand that your guilt be determined beyond a reasonable doubt by a jury of ordinary citizens.

No, it's not criminal law that threatens American freedom.  As Prof. Hamburger shows, and Ilan explains, it's the growing, grasping, blob-like administrative state.
This is a theme I have sounded here again and again in my criticism of what I more typically have called the regulatory/welfare/entitlement state.  But Ilan does a better job than I ever did of explaining just how gargantuan and menacing this sort of state is, compared to criminal law (or compared to any domestic institution, for that matter).

As Ilan notes, the powers of the administrative state, though supported by justifications concerning the needs of governing a modern, sprawling, complex society, are simply the most recent incarnation of something old  --  indeed, medieval  --  and well-known to the Framers:

...it was precisely these justifications and powers that English and American constitutional law developed to protect us against. Not only is the modern administrative state unconstitutional, it is the very thing our Constitution sought to prevent.  

There used to be terms to describe the conduct and powers of the modern administrative state. When the Obama administration issues waivers to favored companies excusing them from some health care regulations, our English ancestors would have called it the dispensing power. When the administration decides that it will no longer enforce certain immigration laws, our ancestors would have called that the suspending power. When the president issues executive orders that make law--or more commonly, when his administration promulgates rules that bind individuals--they would have called that prerogative lawmaking. 

When administrative agencies, which are not courts of law, issue binding orders to appear and testify; when they command homes, businesses, and records to be kept open for inspection; when they require businesses to self-report regulatory violations; when they bind subjects without juries or independent judges--there were terms for such actions, too. They were general warrants and writs of assistance. They were self-incrimination and ex officio proceedings. They were Star Chamber and the High Commission. 

They were tyranny. 

Ronald Reagan reminded us that a government big enough to give us everything we want is big enough to take everything we have.  When we hear, as we so often do in the present day, that it's criminal law and those thuggish cops and prosecutors who primarily threaten the freedoms that lie at the center of American life, this is a very useful thing to remember.

1 Comment

"Much of what the Left (and libertarians) say about criminal law focuses on the cops and prosecutors as the signal threat to the freedom of American citizens." Mr Otis, that is an assertion unsupported by fact. I think you perceive libertarians that way because you seem to identify with cops and prosecutors. But arrest, prosecution and imprisonment are also administrative matters.

I am a libertarian and I agree with you about the bloated, administrative, regulatory state being a threat to freedom. I correspond with many who feel likewise and there is great deal in the libertarian literature that focuses on the administrative state. More that half of what you read on Reason.com focuses on the administrative state. All of Mises.org focuses on the administrative state.

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