Oct 13, 2021
The New Civil Liberties Movement
Philip Hamburger on *Purchasing Submission: Conditions, Power, and Freedom*
Southwest Airlines CEO Gary Kelly recently said on CNBC that he has always opposed vaccine mandates like the one recently announced by OSHA under President Biden’s executive order, yet he has reluctantly chosen to enforce it as a matter of legal compliance. Even apart from the heavy fines threatened by the order, airlines like Southwest receive federal contracts from the government, which they might lose if they fail to follow the legally dubious order.
Philip Hamburger first joined my show in 2014, warning of the threat of the administrative state, which has only grown since he released his prescient book — Is Administrative Law Unlawful? Now, he has followed up with the sequel: Purchasing Submission: Conditions, Power, and Freedom, which examines a frequent tool used by the “fourth branch of government” to further circumvent the Constitution. Hamburger explains that by imposing conditions on the recipients of government largesse, the administrative state has cleverly been able to evade the usual constitutional considerations.
I was recently joined by Hamburger’s colleague at the National Civil Liberties Alliance — Jenin Younes — who has been fighting against unconstitutional vaccine mandates. However, Hamburger joined me to step back from the specifics of any single instance of administrative overreach and see the bigger picture. Tune in to learn about the patterns and mechanics of how the government gets away with its new assaults on civil liberties by essentially purchasing our constitutional rights through various conditions on its special favors.
TRANSCRIPT
Bob Zadek 00:13
I’m happy this morning to welcome back to the show Philip Hamburger — a law professor at Columbia Law School and author of a number of books. He has written extensively and with great authority on the subject of the administrative state — the fourth branch of government — questioning whether it is, in total, unconstitutional.
Philip has written a new book entitled, Purchasing Submission: Conditions, Power, and Freedom. In this book, Philip examines in great detail with a great number of examples, the use of the administrative state to, in effect, coerce individuals and entities and other branches of government into surrendering otherwise constitutionally-protected rights.
We have a federal government that purchases (perhaps a charitable phrase) the surrender of constitutional rights. I guess there ought to be an exclamation point at the end of that sentence. I ask you to stipulate one. How does the government coerce you, persuade you, or purchase your constitutional rights from you? I thought you’d never ask.
Filling the ACLU’s Empty Shoes
Bob Zadek 03:20
Philip, you are the founder of an organization called the New Civil Liberties Alliance — a nonprofit public interest law firm based in Washington, DC, which protects constitutional rights from infringement by the administrative state. Before we roll up our sleeves and discuss how the government purchases your waiver of your constitutional rights, please tell us just a bit about the New Civil Liberties Alliance.
Philip Hamburger 04:03
I founded The New Civil Liberties Alliance about four years ago because I was dissatisfied with the way that conservative and libertarian organizations were litigating to protect our freedom. I thought it could be done better. The organization is actually somewhat like the ACLU, only we actually try to defend your civil liberties. We have about 20 people in Washington, DC, and we have many, many cases. We’ve already had a lot of success in pushing back against the administrative state. The theory on which the organization is founded is that administrative power is the greatest threat to our civil liberties in our era. It is, therefore, necessary to focus on that and push back against it.
“The organization is actually somewhat like the ACLU, only we actually try to defend your civil liberties.”
I’ll just give you an example of litigation. We did COVID litigation and we’re doing conditions litigation. We want strategic litigation to push back on the types of power that agencies have over us. One of them happens to be the Securities and Exchange Commission, which goes after people who do insider trading. We think people should not be engaged in insider trading. We’re not against regulating that. They do it without an act of Congress, but with their own rules that they invent and that are not law. They prosecute people in their own little non-courts that are run by so-called administrative law judges, who aren’t really judges, who don’t give you a jury, who don’t provide due process of law, and who are quite biased. We believe that these little tribunals — the ALJs — are unconstitutional. We’ve done so well litigating that the Securities and Exchange Commission has now largely given up bringing its cases in front of the administrative law judges.
We’re forcing them to go into district court where they should be. Then this summer in district court, they’re not satisfied simply to prosecute you under law. They want the Justice Department to go after you for violating mere guidance, which isn’t even an interpretation — it’s just their view of the law. It’s not even a rule. I’m delighted to say the judge in Spartan Securities v. SEC instructed the jury that guidance is not binding as law. The jury acquitted our client on 13 out of 14 charges, but the 14th one was small potatoes. What that means is we’ve chased the SEC out of their unconstitutional little administrative tribunals into District Court, and the SEC can’t win in District Court. This is good news. It’s part of a larger strategy to take down these administrative tribunals that are utterly unconstitutional.
“We have a new movement in favor of civil liberties.”
That is what New Civil Alliance does and if anyone’s interested, look at our web page ncla.legal. We have a new movement in favor of civil liberties, and I hope it will succeed.
Bob Zadek 07:16
Civil liberties is almost, if you will, in my opinion, too bland, a phrase. You are protecting constitutionally-granted rights.
Philip Hamburger 07:31
I would go even further than that. Many of these rights are ours prior to the Constitution. The Constitution merely respects free speech — we had that before the Constitution. The right to bear arms — we had that before the Constitution. The Constitution merely respects those rights. These are not really granted, but they’re constitutionally acknowledged. Yes, I agree with you entirely. We could have just called this a movement to defend constitutional freedoms.
Bob Zadek 08:00
I was just making a point to induce people to get out their credit cards and checkbooks, and you corrected me. Oh, my goodness, you don’t know anything about fundraising, Phil.
Avenues for Purchasing Submission
Bob Zadek 08:22
You mentioned in your book, Purchasing Submission: Conditions, Power, and Freedom, that the federal government either purchases or persuades individuals and entities to waive constitutional rights. Is it accurate to say that the federal government in the subject matter of your book is merely purchasing or otherwise coercing entities and individuals to waive, surrender, constitutionally-granted rights? Let’s see the tools the government uses to either purchase or coerce individuals to surrender constitutional rights.
Philip Hamburger 09:44
Yes, I’m afraid that is what happens. The Constitution gives the federal government the power to enact laws. Those laws are limited, at least to some degree by our rights, but it’s not content with that, so it created an alternative pathway to control us, which was administrative edicts where they command you. The administrative rules look like congressional rules, but they just come from an agency, not from people we elect.
They’re not even satisfied with that. They have another irregular mode of controlling us, which is through conditions. They distribute money or other privileges to us. We simply give money to the States. They give us money for education, then they say, “Oh, and by the way, you only get this money if…” and then they list a series of conditions. They can use those conditions to regulate us, which is unconstitutional. Even more unconstitutional, they can use the money then to say subject to the condition, “You give up some of your speech rights. You give up some of your due process rights, or you give up your jury right.” Essentially, they’re using our tax money to buy our constitutional freedom.
Bob Zadek 11:03
Philip, you said something, really, in my opinion, with great insight, and I want to restate it just to be sure that our audience didn’t let this important point you made slip away. The government undertakes a two-step process.
“Step one, take away rights or property. Step two, give it back conditionally.”
Step one: they deprive you of rights or property you otherwise would have. Think of taxation. Before the tax is imposed, your property is your own. I’m not saying it’s criminal, or that it’s theft (some people argue that). But the government takes away some of your money, only to give it right back to you with conditions. The same with licensing, as we will get into. First the government says, “Okay, step one, you cannot do something. You cannot open a business. You cannot. Step two, but we will give you the right to open the business we deprived you of a second ago on the following conditions.”
Notice the word conditions. It’s a two-step process, which you will see in all of Philip’s examples. Step one, take away rights or property. Step two, give it back conditionally. Philip, that was an important point. I just wanted to be sure it was not lost on our audience. Please continue.
Philip Hamburger 12:51
That’s actually one of the reasons this mode of governance has not received enough attention — because it’s a little complicated. It’s not just an agency unlawfully telling you, “Wear a mask, take a vaccine, stand in your head, tear your hair out.” Instead, they’re saying, “Oh, here’s a present. It’s yours.”
You say, “Thank you. Oh, good. I’m glad to have free money.” Although it’s not really free, as you point out.
Then they say, “We just want to make sure you don’t do this or don’t do that.”
In that way, they regulate you without an act of Congress, and they deprive you of your rights.
Examples of Unconstitutional Conditions
Bob Zadek 13:33
The example you use in your book, which is South Dakota v. Dole, is such a clear example of how we got here.
Philip Hamburger 13:45
Good, let’s start with that one, then. The federal government subsidizes highway construction by the states. Whether or not that’s constitutional, leave that aside for a minute. They give money to a state such as South Dakota, and say, “Oh, and by the way, you can have this money, but you have to have a law dictating a national drinking age.” Most of the states say, “Okay, we’ll change our laws in order to get this money.” Now, we’ve already violated all sorts of elements of the Constitution. Again, leave that aside.
What’s interesting here is that they’re giving money to the states in exchange for their changing their drinking ages. This is simply not within the constitutional power of the United States. There is no general spending power and it’s not clear that the spending is within the commerce power. The general welfare limitation on spending means that spending cannot go to the states — that’s been thrown away, too. There’s commandeering here. The federal government is using its money to dictate to the states what a policy should be. If that’s the most basic example, the Supreme Court says, “Oh, that’s just fine.”
“There is no general spending power and it’s not clear that the spending is within the commerce power.”
Unfortunately, it gets worse because then in many instances, the federal government will say, “We’re giving you this money. By the way, we want you to limit the speech rights of your personnel.” That’s what happens in universities. That’s how I got into this. I was in the living room of a brilliant friend. I asked him, “Why haven’t you published an article you wrote? You’re a great statistician.”
He said, “I can’t publish it.”
“What do you mean you can’t publish it?”
He said, “I did not get prior permission from the Institutional Review Board,” the so-called IRB, “and I, therefore, can’t publish.”
“What do you mean? I thought we don’t have censorship in this country?”
He said, “Oh, yes, if I publish it, they’ll prevent me from publishing in the future, so I can’t publish it.” He circulated his important paper in samizdat as if it were Russia. That’s how I got into this. I started studying these Institutional Review Boards. What happens is HHS, Health and Human Services, gives research funding to universities on the condition that they have little censorship boards. In order to do research on so-called human subjects, which includes, by the way, talking to you — if I’m going to write about this I have to get permission for each part of the conversation — I’m not allowed to publish your name or some of the details lest I embarrass you. Can you imagine?
All researchers on human subjects, which is most research, is now subject to prior censorship, for speech in the research and later publication. It turns out this has a death toll associated with it. It’s meant to protect the human subjects, but in fact, because they’re suppressing medical inquiry, it actually kills hundreds of thousands of people because you’re depriving them of medical knowledge. It’s frightening.
Bob Zadek 16:53
Free speech is a cherished right that distinguishes us from any Western democracy. We have the most protected speech rights of any country on the planet — most of us would say the government cannot interfere with it. Yet the government — in a way that’s as stealthy as prohibitions can be — in effect, regulates in a very profound way what a scholar or anybody else can publish. It’s not quite prior restraint, except if you do it once, you can’t do it again.
Philip Hamburger 17:55
I think you’re right. It is prior restraint. This is prior licensing of speech. I think you’re right to use the word stealthy. This is a stealthy assault on free speech, which they could never have done directly, but they do it with money. Somehow they think it’s legal.
Title IX Sleight of Hand
Bob Zadek 18:12
It starts with the fact that the government provides tax dollars in the form of grants to universities. The federal government is the virtual sugar daddy of most universities in this country. It dispenses lots and lots of money. It does so conditionally.
“The federal government is the virtual sugar daddy of most universities in this country.”
Now, the federal government doesn’t earn money. It gets money only by taking it from taxpayers. So, the government first takes away money from taxpayers, and it uses the money which it obtained through taxation — not for the common defense, or for the common good — but to coerce the surrendering of constitutional rights. It takes money from us, giving no benefit, only so that the government can then have the power to coerce.
Phillip’s book title, *Purchasing Submission,* gives the government too much credit. “Purchasing” sounds like there is a willing buyer and willing seller: “Let’s do a deal.” No — the government takes away your money, then gives it back only on conditions without the money that it took. That’s the source of the power that the government has.
Now Philip, the government’s “purchasing” (your word), or coercing (my word), comes about in so many different areas that the listeners are generally familiar with, but not in this connection. Walk us through some of the many examples in your book where the government uses the power by taking away rights or property, and then giving it back conditionally.
Philip Hamburger 21:03
Title IX is a good example. We all know that Title IX bars sex discrimination in educational institutions. But it’s been misused through interpretation or guidance in the Department of Education to actually suppress sexual and political speech in nasty little inquisitorial tribunals. What’s not understood is that this is not a general prohibition in Title IX — Title IX is a federal law, which actually says, “If you get educational spending from the federal government, you — the educational institution — have to start censoring. You have to stop discrimination, including censoring speech or an interpretation.”
In other words, money is used. That’s not an accident, because it’s rather dubious where the federal government has any congressional power over education. It surely does not. That’s largely undisputed. So, Title IX reflected that it’s acknowledged that there was no federal power of education. They thought they would use the money to control it. That’s typical — money is used to control things that otherwise are outside the constitutional ambit of the federal government.
“That’s typical — money is used to control things that otherwise are outside the constitutional ambit of the federal government.”
Then we gave the example of the drinking laws, we now have federal drinking regulations imposed by the state, which has simply been purchased by them. It happens in education, also controlling the speech through IRBs. Another example of the so-called Hatch Act, says, “Federal employees, you got a job from us, well, you can’t engage in political campaigns.” That’s probably wholesome in some sense, but to limit the speech of individuals outside the course of their work is probably unconstitutional to sustain their freedom of speech.
Another example would be aid — there was something called “aid to families with dependent children,” which was the major form of federal welfare for decades, and that offered money to the states. The conditions were attached by the states that poor individuals, usually single mothers, had to allow caseworkers into their home to evaluate their needs. That was often done, by the way, at midnight, or shortly thereafter — with just a sudden knock on the door, and caseworkers would barge in, because they were trying to figure out whether the mothers were true, single mothers — which was the qualifying condition of them getting the money. The condition was essentially used to justify Stasi-like attacks and night raids on your house. This specialized in attacking the poor.
That gets the larger issue here, which is this: we’re all vulnerable. Even banks and universities are vulnerable to conditions because they’re desperate for the money. The poor are especially desperate. This is a way of undermining the rights of the poor more than anyone else, which need protection problems. It’s all quite clear.
Bob Zadek 24:05
It’s the same issue of the government, on the one hand, prohibiting something, then giving back permission to carry on the activity which a second ago, they prohibited, but giving it back with conditions.
Much of what Philip and I are talking about would be okay if you felt that states were anachronistic and had no relevance in 21st century America — if you felt that states were stupid, and that we should have one all-powerful federal government in 12 square miles of the District of Columbia. That ends with you having only the most distant and remote control over your government if you feel states are stupid — a nonpolitical science term.
If you feel that states are stupid, then a lot of what Philip is saying doesn’t cause outrage. Most Americans, however, like the idea of the government being local. Tip O’Neill observed, “All politics is local.” Local matters. If you want to have more control over your government, then you favor power over the states. You favor power to the cities, and power to the counties, and power to the school boards, because it’s more local. Philip is explaining a usurpation of state and local power by the federal government. They can’t do it directly because the Constitution prohibited it, at least it did at one time. This is a trick, the technique, which within the Supreme Court’s endorsement, we have in effect, contributed to the irrelevance of states.
This subject is of crucial importance to you, to the extent that you value the fact that states are separate, equal branches of government vis a vis Washington — that states have their areas of power, somewhat exclusive, and Washington has its more narrow areas of power. If you favor the concept of federalism, as delivered to us in 1787, then this conversation is truly important.
The Dark Side of Plea Bargains
Bob Zadek 24:05
Now, Philip, you mentioned something in your book that I hadn’t thought of in this context, but you’re exactly right. Please explain it. You mentioned plea bargaining, which I dare say the audience generally knows about, although perhaps not to the extent they should. How is plea bargaining an example of the government using its coercive power of taking away rights on the one hand, and then giving it back conditionally, on the other hand?
Philip Hamburger 27:33
Plea bargains may be one of the most common venues for conditions. The government will charge you with a crime — perhaps overcharge you as they want — then say, “Oh, by the way, if you settle this, we can all go home happy. You get a lower charge and we don’t have to go to the expense of a jury trial.”
Usually in plea bargains, the defendant gets 1/3 of the charged sentence. What’s more, these days, around 97% or more of federal charges get settled this way. It’s the primary mode by far of determining what your sentence will be — not to mention your guilt. Now, plea bargains aren’t necessarily unconstitutional — they can be quite useful — and why shouldn’t one settle up? We can get a good deal. But there are dangers here. One is that when prosecutors regularly overcharge, as they do with examples of conspiracy charges, so they can extort more.
The other danger is that some of the conditions placed in a plea bargain can be unconstitutional. For example, if you are required to give up a jury trial in your current proceeding, that’s perfectly constitutional. If you’re asked to give up a trial in a subsequent proceeding, that’s another matter. If you’re asked to testify about yourself — against yourself — in a current proceeding, that’s one thing, if you’re asked to testify in another proceeding, that gets more complicated. Those look like attempts to control your constitutional rights and privacy.
Or, for a serious example, when the SEC settles a proceeding with a defendant and adds a gag order — as they do now by rule — you have to promise you will not talk about the case to get a settlement. It is silencing defendants who settle — barring them from exposing the unconstitutional conduct of the Securities and Exchange Commission. This is grossly unconstitutional — the use of a plea bargain, essentially to quiet with critics. This gets very dangerous. So some plea bargains are fairly done and constitutional, but they are a threat to our constitutional system as a whole. I think the SEC’s gag orders are a very good example of that. That’s one of our targets at the New Civil Liberties Alliance.
Bob Zadek 30:15
You said people can negotiate to get a better deal. There’s another darker aspect to plea bargaining. It starts one step earlier. Congress imposes very harsh, extensive sentencing guidelines upon bad acts. They do so because no one ever lost a seat in Congress because they were too harsh on criminals. That’s an easy vote for Congress to take. They can sleep at night, saying “No problem. They’re all going to plea bargain down anyway. We’re really not imposing a harsh sentence, we’re imposing a sentence of only ⅓ of that, which we state so we get some positive feedback from our voters — we get the vote for throwing away the key on the bad guys.”
“No one ever lost a seat in Congress because they were too harsh on criminals.”
In imposing harsh sentencing to begin with, they give the tool to the prosecutors to say, “Okay, you’re going to get 90 years for shoplifting. If you plea bargain it down, we’ll put it your way for nine months.”
I’m exaggerating, but the point is, it starts with harsh sentencing that nobody could defend on the merits. If you start without harsh sentencing, then an alleged criminal would be less incentivized to take a plea bargain because they are gambling with less time. I just wanted to remind the audience that one step earlier in the process, the government deprives you of the most cherished rights, the right to be free — the right not to be in jail — and then they give it back or shorten it with plea bargaining. In plea bargaining, you are in effect surrendering your right to a trial by jury — a trial by your peers, a right which goes back, at least to if not before the Magna Carta in 1215. It is a core human right that you sign away, just to avoid being over incarcerated because of Congress’s harsh sentencing.
Philip Hamburger 33:26
That’s absolutely right. I generally tend to understate problems because the problems are so serious that if you actually fitted them with their full height, people wouldn’t believe it. I think it’s best to start gently. You’re absolutely right about overcharging being a mechanism for depriving people of jury rights. When this is done under the sentencing guidelines, there are other constitutional problems. The sentencing guidelines are created by the sentencing guideline commission, including judges. Initially, this was upheld as lawful in a case called Mistretta v. United States. Back then, the judges had some misgivings. They said, “No, these aren’t binding, but they are advisory.”
That leads to another constitutional problem because a judge is not allowed to give advisory opinions. When judges sit on the commission and propose sentencing guidelines, even if they’re only advisory, there’s a risk that they’re giving something that’s akin to an advisory opinion. They are participating in something that’s essentially lawmaking, and giving the unspoken understated advisory opinion that these are lawful sentences. That leads to a profound danger for the judiciary if they engage in advisory lawmaking. It seems to be that the sentencing guidelines, even an advisory status, are unconstitutional because of judicial participation informing them. One day I have to challenge this myself. There are many other elements of this. It’s very, very worrisome
Build Back Better & the One World Tax Rate
Bob Zadek 34:58
When the federal government taxes individuals –the income tax and corporate income tax — it is to some degree taking away from the tax pool money that would otherwise be available to the states. In other words, it becomes harder for states to raise their own income taxes when they are added to the federal income tax. It becomes too much, and people leave New York and California to go to low tax states. To the extent that the federal government takes money from citizens of a state by taxation, it is money that would otherwise be available, and perhaps no longer is available to the states.
Now, explain how the Biden administration offered money to the States through “Build Back Better” (what an obnoxious name), using the money they took from the citizens of those states. It offered money back to the states, but on the condition that the states not lower their taxes.
Philip Hamburger 37:22
This, in fact, is one of the cases that the New Civil Liberties Alliance is now litigating and I trust will win. The federal government is attempting to impose its policies by compliance in the states, and is worried that some states will essentially use the money to reduce some of their own taxation — a natural and reasonable response.
“They had this extraordinary condition earlier this year: the states, upon receiving federal money, may not lower their taxes.”
This is clearly unconstitutional. For one thing. Spending to the states is unconstitutional. For another, it’s a condition on the states that are attempting to regulate them. That should be done through an act of Congress, not through a condition. Of particular salience here, is that it’s commandeering the states — it’s commandeering one of their central policies. It directs the state’s how to engage in taxation, in exchange for federal money. Now, the Supreme Court has complicated these matters because it said, “Well, the federal government cannot commandeer the states coercively,” and the federal government has read this as a license then to commandeer the states through conditions, because conditions aren’t coercive, right? — it’s a deal, it’s just consensual. What could be wrong with this? This rearranges the structural relationship in the federal government of the states — they are independent sovereigns, and we as a people have a right to govern ourselves and our localities.
“Federalism is not just a structural matter, it’s our freedom of self-government.”
So this is an attempt by the federal government to purchase its way out of this constitutional structure and to deprive us of our right of self-government in the States. This seems grossly unconstitutional. I think it will be held so by all the courts — we’ll see.
Bob Zadek 39:27
The pure political motivation is that high-tax states, like New York and California and Illinois, were losing customers — read taxpayers — to low-tax states. The low-tax states tended to be governed by Republicans and the high-tax states governed by Democrats. By the way, that is not a coincidence.
Philip Hamburger 40:02
I think Republicans have sometimes been just as bad as Democrats. There’s a lot of blame to go around. Many Republicans have voted in favor of utterly unconstitutional conditions and in favor of higher taxes. Some of our politicians may be worse than others, but there’s a lot of blame to go around, I’m sorry to say.
Bob Zadek 40:25
The motivation for this particular measure was to reduce the competition for taxpayers, i.e. customers, from high-tax states.
Philip Hamburger 40:42
They’re trying to hit many levels, it’s not really just the states. The attempt to have international coordination of taxes is [part of] an attempt to do this at the international level, too. They’re trying to squeeze out variation so that they’ll have a uniform, minimum tax rate across the world. They do that internally in the states and externally with other governments. That’s all very worrisome because it means there’s no way of opting out and trying something else.
“They’re trying to squeeze out variation so that they’ll have a uniform, minimum tax rate across the world.”
Bob Zadek 41:13
I was going to draw the parallel, but you stole my thunder. Guests come first in this show all the time. Philip is referring to Janet Yellen. She’s not the creator, but these days she is the great sponsor of a provision that’s gaining a lot of momentum, where she is obtaining the consent of all of the major industrial countries in the world to agree not to compete on the basis of lower taxation, and to all agree to have a 15% minimum corporate income tax. So corporations who feel overtaxed in the US can’t run to Ireland or wherever they might run to avoid taxation.
If all the states in the world agree to the same, there’s no competition. It’s the same thing the federal government attempted to do, and what the New Civil Liberties Alliance is attacking, which is to exchange federal tax dollars for a promise by the states not to try to compete on the basis of lower taxation.
When countries or states are competing on the basis of lower tax policy, they are offering freedom to us citizens to pick where we live on the basis of, among other things, tax policy. When the federal government employs this monopolistic approach and says, “You cannot compete on price,” that, by the way, is a crime if businesses do it. Remember, we have antitrust legislation. The Federal Government has flunked the test of the Sherman and Clayton Antitrust Act. Any attempt to eliminate competition is a direct attack on freedom. To borrow a phrase from President Obama, that is a red line that should not be crossed. You cannot take away our freedom.
Next Steps for Civil Libertarians
Bob Zadek 44:05
Now, Philip, in your book, what do you propose? What are the action items that you wish would be different? What would have to change for you to, if you will, buy a little happiness?
Philip Hamburger 44:26
Right. I don’t think we need more legislation, whether from the states or from the federal government. What we need is better, more intelligent litigation. One of the goals of the book is to first help the judges see the problem more clearly.
“One of the goals of the book is to first help the judges see the problem more clearly.”
It’s not just that doctrine has been wrong. They haven’t really recognized the way we’re governed now. They think we’re still governed as if it were a Schoolhouse Rock: there’s a bill passed by Congress. In fact, we’ve been an administrative state.
But it’s not just administrative edicts. We also have conditions on spending. I want judges to understand that money is a mode of power. Once they understand that I think their doctrine will shift a little bit. Then secondarily, my hope is that litigators and Americans will begin to challenge some of these conditions as unconstitutional. In fact, the book ends with a checklist for the benefit of lawyers and their clients. I think once we get that money is power, constitutional power in this instance, the world looks different. That one little insight, I think, can lead to a whole host of opportunities to challenge much of the lawfulness in court. We’re doing that with the New Civil Liberties Alliance, and I hope others will do so too. The more we inform ourselves about simply the truth of our government — whether it be that we’ve lost our right to elect our lawmakers through administrative power, and we’ve lost it further through conditions — once we get that, and once we get that our constitutional rights are at stake, we’ll begin to push back. I call it a new civil liberties movement. The New Civil Liberties Alliance wants to be the vanguard of that.
Bob Zadek 46:13
You really did, in my opinion, a public service by explaining how something as basic as churches who get tax exemptions, that is the revenue — I’m not calling it income, its revenue from contributions and the like — is not taxed. Indeed, contributions to any nonprofit are not taxable. Now that seems like a good idea. If the power to tax is the power to destroy, and the government should not have the power to destroy religion, then that seems like another first principle of our country. If we allow the government to tax churches, which was the case in revolutionary America before the founding of the country, then it could destroy them.
“Poor people are always asked to surrender constitutional rights in exchange for money.”
But now, today, the tax exemption is once again used to coerce them. You point out something, again, generally accepted, which is public housing and giving lower-income people free housing or subsidized housing, but only if they surrender constitutional rights. Please explain for our audience how the principles in your book directly apply to church tax exemption and public housing. Public housing is simply an example. Poor people are always asked to surrender constitutional rights in exchange for money.
Philip Hamburger 48:38
As to public housing, many jurisdictions require individuals living in public housing to give up some of their rights, searching their apartments and the like. That’s probably unconstitutional.
To the other example, churches — a 501(c)3 under the tax code conditions tax exemption and income tax on giving up your political speech. Churches and other nonprofits have to give up their right to lobby and to participate in elections. This is grossly unconstitutional. It assumes that not taxing you is actually a gift of money. It’s also highly prejudiced. The individual who first proposed this condition of speech limitations was none other than Hiram Evans in 1930, the Imperial Wizard of the Ku Klux Klan. We have federal tax law carrying out Klan policy about suppressing church speech. The Supreme Court doesn’t bat an eyelid. That tells you something about how disconnected the judges are from the realities again of how we’re governed and where these laws come from.
Bob Zadek 49:55
People who live in public housing consent to the government being able to inspect their housing without a warrant. The government is different. They carry guns. The fact that a private landlord asked for that — that’s a negotiation. It’s not a negotiation with the federal government because they carry guns. Landlords don’t carry guns.
“It’s not a negotiation with the federal government because they carry guns. Landlords don’t carry guns.”
Philip Hamburger 50:21
Many of these conditions I should say are also imposed by the states. The states are not innocent. It gets back to what you were saying earlier about the devolution of power and the diversity of jurisdictions and their policies being important. This is essential to our freedom. Even if you’re not attached to your freedom, even if you’re interested in good policy, one has to hope to disperse policy error and when you monopolize all government power into one agency or one government, or just a few of them or coordinate them too much, you’re not dispersing error, you’re actually exaggerating it. Even if we’re not interested in freedom, even if we’re just interested in good regulation and policy, which it seems to me it’s a somewhat myopic approach (that’s true of many academics, for example) — they still should want the dispersal of that power to the state to localities and individuals.
Science is all about the dispersion of error and exploring new ideas individualistically. If one is attached to scientific power, we should want to disperse all of this energy and power, not concentrate it.
“Science is all about the dispersion of error and exploring new ideas individualistically.”
Bob Zadek 51:30
This is Bob Zadek, we’d be speaking to Philip Hamburger. Philip has written Purchasing Submission: Conditions, Power, and Freedom. Philip defends our freedom through the New Civil Liberties Alliance. Please support the effort of the Alliance. They are working for all of us, and there is no free lunch. They cannot work for all of us without our help. This is Bob Zadek thanking Philip for joining us for this hour of his time on the weekend and asking you to please check out my podcast. Give us as many stars as you think we have earned and provide your comments, requests, and suggestions. They are all read at all welcome, so long for now.
I’ll be back again next Sunday. Thanks again to Professor Philip Hamburger for his great work working for all of us. Have a good Sunday
Philip Hamburger 52:24
Great to be here again.
Bob Zadek 52:26
Thank you, Philip.
LINKS:
- AMAZON: Purchasing Submission: Conditions, Power, and Freedom, September 7, 2021
- Philip Hamburger | Columbia Law School
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