We conclude our preview of the forthcoming issue of the Claremont Review of Books (subscribe here) with Professor Michael Uhlmann’s review of Is Administrative Law Unlawful? by Philip Hamburger. If I were to name three books of the year for conservatives, one of them would surely be Hamburger’s.
Yet Hamuburger’s is a challenging and difficult book, combining English legal history with a critique of the contemporary administrative state. It is a difficult book for several reasons, one of them being its assumption of a reader’s understanding of the regime of administrative law. I tried to cover some of the necessary background for interested readers in my own “A new old regime.”
Uhlmann’s CRB review now joins the forthcoming review by administrative law scholar Gary Lawson as a leading account of this important book. Uhlmann is both an attorney and a Ph.D. in political science. His government service includes stints in the Ford and Reagan administrations. He now teaches government at Claremont McKenna College and the related Claremont graduate school. He is a formidably learned man.
In his review Uhlmann takes a look back at Hamburger’s previous books. He then summarizes the argument of Hamburger’s current book and notes the widening ambit of administrative law. As he concludes, he quotes one of Hamburger’s most telling passages:
The history of government is largely a story of elite power and popular subservience. Americans, however, turned this old model upside down. By establishing a republican form of government, they eventually made themselves masters and made their lawmakers their servants. More than two centuries later, the shell of this republican experiment remains. Within it, however, another government has arisen, in which new masters once again assert themselves, issuing commands as if they were members of a ruling class, and as if the people were merely their servants. Self-government thus has given way to a system of submission.
What is to be done? Uhlmann refers to the quotation above in concluding on an optimistic note:
Philip Hamburger is on to something, and it’s a good bet that his book will generate precisely the debate he hoped for. It couldn’t happen at a more propitious time, for there is much at stake….
Who knows, one of these days a candidate for president just might pick up on language like [the quoted passage] and ask the people to support a renovation of the administrative state. There may be a more receptive audience for that proposition than at any other time in recent history.
I hope that Uhlmann is right. So far as I can tell, however, Hamburger’s book has yet to generate a debate even within academia. But “renovation” is a smartly anodyne concept with which to characterize the task of restoration that lies before us. Don’t start the renovation without me! Uhlmann’s review is “Appointed tyrants.”