Hamburger's new book on the Administrative State

Philip Hamburger has a new book out on the history of the administrative state. From an "originalist" perspective the administrative state is arguably unconstitutional, perhaps unquestionably so. But good luck in getting rid of it. I mean that only half facetiously; as a libertarian I really would like to see administrative agencies disappear. But I don't see it happening anytime soon.

Hamburger is famous for arguing against the concept of "Separation of Church and State." One common mantra of the anti-Separation crowd is that those words are not found in the Constitution. The counter is but the concept is. Likewise with "Separation of Powers." Those words are not found in the Constitution; but the concept is.

And administrative law violates the "Separation of Powers." The legislative, executive and judicial branches of government each has specific functions that the others may not perform. The problem with administrative law is that these "agencies" all perform quasi-legislative, executive and judicial acts as though they were some fourth branch of government (not mentioned in the US Constitution!).

Anyway you can hear Hamburger talk on the matter below.

Tucker Lieberman Touches on Swearing on a Bible

Over at Dead Man Blogging, Tucker Lieberman wrote an article with the title, 

The long and misguided history of swearing in on Bibles.  Here's a taste from the 12/10/2013 original version:

When England was a Catholic country, swearing oaths on physical copies of the Bible held a prominent place in the culture. A religious movement whose adherents were known as Lollards opposed this practice in the early 15th century, as did Quakers in the 17th century. Lollards were willing to swear verbally by God, but were burned at the stake for being unwilling to swear on the Bible. Quakers would not swear at all, which meant that they couldn't take oaths of allegiance and couldn't testify in court. Mohr writes, "A good technique for getting rid of a Quaker you didn't like was to accuse him of doing something illegal. Whether or not he was guilty, when he refused to take an oath his property would be confiscated and he would be thrown in jail for contempt of court."

Read the full 1/11/1017 article here as it has been updated.

New Paper From Mark David Hall

I received a message from Dr. Hall:

... I just published an article that readers of AC might find to be of interest. Here is the citation and the abstract. 

Mark David Hall, “Madison’s Memorial and Remonstrance, Jefferson’s Statute for Religious Liberty, and the Creation of the First Amendment,” American Political Thought. 3 (Spring 2014): 32-63. 

Jurists, scholars, and popular writers routinely assert that the men who framed and ratified the First Amendment were influenced by James Madison’s Memorial and Remonstrance (1785) and Thomas Jefferson’s Statute for Religious Liberty (1786). In this essay I demonstrate that there is little evidence to support these claims. Because these documents represent only one approach to church-state relations in the era, jurists and others who believe that the religion clauses should be interpreted in light of the founders’ views need to look well beyond these texts if they want to understand the First Amendment’s “generating history.”

McDurmon on John Adams' Blasphemy

Check it out here. A taste:

Folks, this is utter blasphemy. In regard to Adams’ thought, it exposes him as an enlightenment rationalist and humanist. He is not only hostile to the incarnation of Jesus Christ, he wants it eradicated from society. He believes there can be no true progress of knowledge in the world unless it is Christ-free.

Kenneth C. Davis Hi-Lites a GW Fashion Statement

On April 30, 1789, the 225th anniversary of George Washington’s first inaugural ceremony, K. C. Davis posted a promotional blog for the September 2012 edition of his book, Don’t Know Much About George Washington’s Fashion Statement.. 

Here’s a snippet:

For the inauguration he was dressed in a brown suit, white silk stockings, and shoes with silver buckles, and he carried a sword. The suit cloth was made in a mill in Hartford, Connecticut, and Washington had said that he hoped it would soon be “unfashionable for agentleman to appear in any other dress” than one of American manufacture.

Standing on the second- floor balcony, the “Father of Our Country” took the oath of office on a Masonic Bible. Legend has it that he kissed the Bible and said, “So help me God”— words not required by the Constitution.

You can read the full article here.

P.J. O'Rourke on the History of Political Lies

The Cato Institute, aided by the great American satirist and sage P.J. O'Rourke, recently filed a brief opposing Ohio's recently passed law forbidding, um, untruths in political campaigns:

"I am not a crook."

"Read my lips: no new taxes!"

"I did not have sexual relations with that woman."

"Mission accomplished."

"If you like your healthcare plan, you can keep it."



While George Washington may have been incapable of telling a lie, his successors have not had the same integrity. The campaign promise (and its subsequent violation), as well as disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic), are cornerstones of American democracy. Indeed, mocking and satire are as old as America, and if this Court doesn’t believe amici, it can ask Thomas Jefferson, “the son of a half-breed squaw, sired by a Virginia mulatto father.” Or perhaps it should ponder, as Grover Cleveland was forced to, “Ma, ma, where’s my pa?”


After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.

Ohio’s ban of lies and damn lies is inconsistent with the First Amendment.

This Court has repeatedly held that political speech, including and especially speech about politicians, merits the highest level of protection. See, e.g., Burson v. Freeman, 504 U.S. 191, 196 (1992) (“the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.”). Indeed, quite recently this Court held that the First Amendment protects outright lies with as much force as the truth. United States v. Alvarez, 132 S. Ct. 2537 (2012).

It is thus axiomatic—not merely truthy—that speech may only be restricted or regulated where doing so is necessary to further a compelling state interest. But the government has no compelling interest in eliminating truthiness from electioneering and, even if such an interest existed, such laws are unnecessary because any injury that candidates suffer from false statements is best redressed by pundits and satirists—and if necessary, civil defamation suits. Nor is the government well-suited for evaluating when a statement crosses the line into falsehood.

Ohio’s law blatantly violates the First Amendment and directly conflicts with Alvarez. This Court should terminate it with extreme prejudice.

More great American sagacity [with footnotes]  here.

Olson on Greece v. Galloway

I haven't had a chance to read the original decision. Though, Walter Olson's opinion on the matter at Secular Right seems quite "fair and balanced" for lack of a better term.

Tara Ross: "This Week in History: Monroe’s birthday, Washington inaugurated, Rhode Island declares independence"

This is a writer to whom we ought pay more attention.

Discussion

From the lack of posts, you can tell I've been busy. American Creation participants might want to discuss the articles in this link from John Fea from last Sunday. Lots of great stuff to read there.