Philip Hamburger has made a revolutionary contribution to American constitutional law. He shows that what is often regarded as a narrow topic, “unconstitutional conditions,” of interest only to specialists, is in fact fundamental to understanding our contemporary system of government and moreover that its abuse poses grave dangers to liberty.
We should not be surprised that Hamburger, who teaches at Columbia Law School, has made such a revolutionary contribution, as this is not the first time he has done it. In Separation of Church and State, he showed that the first amendment does not prescribe Jefferson’s “wall of separation,” and the “yes” answer he gave 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 grasp what Hamburger does in Purchasing Submission by thinking about the limits of two ideas we often stress. To some libertarians, contracts are basic, and voluntary bargains between consenting persons are the sum and substance of social interaction. Murray Rothbard did not view the matter that way, though, and for him contracts must be made within the structure of a law code based not on contract but on natural law. If you compare his The Ethics of Liberty with David Friedman’s The Machinery of Freedom, you will see the difference between a libertarianism founded on natural law and one which consists of contracts “all the way down.”
Hamburger is not a libertarian, to the contrary arguing for constitutional government, based on an “originalist” approach, which he believes with justification to offer better protection for liberty than the system that now prevails in America; but his view of law is similar to Rothbard’s. Constitutional law is not based on bargains between individuals: “The Constitution … cannot be altered or excused by the consent of states or private persons…. Nowadays, it is not denied that the Constitution is a law, but it is commonly assumed that individuals, institutions, and states, by their consent, can relieve the federal government of its constitutional limits. The Constitution’s limits on government, however, are not merely contractual terms” (pp. 153–54).
In like fashion, rights are fixed and cannot be given up in return for benefits. “One reason consent has been so widely considered a constitutional solvent is that rights are often seen as merely personal spheres of freedom and thus tradeable commodities. . .From this point of view, free speech and other constitutional rights are personal goods—no more or less than a used car or old rug, which individuals can bargain away as they please…. But constitutional rights are not merely personal claims; more broadly, they are legal limits on government” (pp. 155–56).
We now need to consider one more idea to have the background to understand the thesis of Hamburger’s book, and this idea has to do with the second concept stressed by libertarians, coercion, and its limits. From a libertarian perspective, so long as you do not use or threaten force against the life, liberty, and property of other people, you are not subject to other restrictions. You are free to persuade them through offers to do as you wish.
Hamburger thinks that it is a mistake to apply this attitude to the government, and this leads to the book’s main idea. Often, the government induces people to do things by making them conditional offers. For example, researchers will be offered grant money, provided that they follow guidelines that the government sets out. The conditional offer need not involve payments, as in cases of plea bargains, where defendants in return for waiving a jury trial are offered a lighter sentence.
You might at first think that, setting aside whether government is legitimate at all, these offers are all right. After all, people are free to accept or reject them, since, by hypothesis, the government won’t use force to make them accept its offer. According to a dominant, though not altogether unchallenged, position, this is correct: only conditions that directly contradict the Constitution are ruled out. For example, the government could not offer a church money in return for not teaching that same-sex marriage is wrong, because this would violate the First Amendment; but otherwise, the field is clear.
We are now in a position to understand Hamburger’s main thesis. He thinks that the government is not constitutionally free to make conditional offers that extend its powers beyond the limits prescribed by the Constitution, even if these offers do not on their face violate its provisions. The government must accomplish its ends with the means provided it by the Constitution and cannot extend its powers through offers, all the more so as, owing to disparities in power, influence, and knowledge between the government and private citizens, it is very difficult for people to refuse the offers.
By the use of such offers, the nature of the government has been altered from the strict limits set forward in the Constitution, and in some instances, the extension has had drastic consequences. “Rather than offer money or some other privilege in exchange for a condition, agencies sometimes threaten regulatory hassle until they get acquiescence. The government in this way often imposes conditions in ways that are difficult to distinguish from extortion. Bad as this is, the extortion is even worse when the government threatens regulatory hassle to secure consent to regulatory conditions. The resulting extortion is doubly regulatory—both in the pressure to submit and in the resulting acquiescence to further regulation” (p. 221).
And even this is not the worst of it. “This book has saved the worst for last. Not content to use conditions to control those from whom it secures consent, the government asks consenting states and private institutions to control others. The federal government employs conditions to turn the states and private institutions into agents for regulating Americans—often even for imposing unconstitutional restrictions” (p. 233). A case of this kind that especially troubles the author is that the Health and Human Services Department of the federal government requires universities that receive money for “human subjects research” to establish institutional review boards to approve all research in this area, and these boards have often acted to interfere with free speech and academic freedom. In one instance, a law professor who is a friend of the author could not publish an article because he had failed to secure the prior approval of his university’s institutional review board, even though his research was not directly related to the ostensible mandate of the board. The board claimed the power to approve all research done at that university, and had he published the article in defiance it, by his own estimate his career would have come to an end.
Hamburger warned in his earlier work of the dangers of administrative law, but conditional offers in his view pose an even graver threat to liberty. Hamburger deserves the thanks of all students of the Constitution for his intricately argued book of immense learning, written in excellent style and manifesting a passion for liberty.
By David Gordon Via https://mises.org/wire/contract-rights-are-not-same-natural-rights