Book of the Month/August 2014

For this month’s installment, I am going to do something a little bit different. I am going to throw some superlatives into the second paragraph, explain some obstacles in the next, and then add my own observations following all that.

This book, Is Administrative Law Unlawful?, is one of the most important books of this generation — magnificent, magisterial, monster-mojo-fun. Everyone who is directly or indirectly connected with politics needs to get it, read it, and digest it. It is an unlikely contender for best seller status, but we need to make sure it gets there anyway. I am taking the unusual step of reviewing a book for this spot before finishing it — but bear with me. I want to take it all in slowly while getting the word out quickly.

Okay, there are some obstacles. The book costs about fifty clams, which works out to about a dime a page — worth every penny. This thing has a tight weave of 511 pages, with 111 pages of dense footnotes on top of that. It is a carefully written academic tome, published by The University of Chicago Press, in a nondescript powder blue cover, with the title looking suspiciously Times Romanesque. Take all these things together, and you scarcely notice the fuse sticking out of the top. But then, after a double take, you realize it is a lit fuse. Despite all these challenges, one time I checked it was ranked around 12,000 at Amazon. That is remarkable for a book like this, but we need to have it do a lot better than that.

Why, yes. Yes, it is.

Why, yes. Yes, it is.

But don’t just buy it to make a statement. Read it, and let the good law professor make his statement. Scott Johnson of Powerline has a review of the book in the current issue of National Review, an adaptation of which can be found here.

We have been told that the modern world is a complex place, and that the archaic rules laid down for our governance in the Constitution have not be able to keep up. Modern! Shiny! Techno! Faster! How could we possibly expect the powdered wig guys, however much we revere them, to have anticipated the modern challenges that confront us Today?

In this book, Philip Hamburger simply destroys this glib assumption, not to mention the hubris it rode in on. The modern administrative state is not the shining achievement of technocratic man, but is rather a retrograde political movement returning, like a dog to its vomit, to a certain medieval form of governance that our constitutional forms of government first arose and smote.

The only thing missing is that the EPA has not seen fit to start meeting in a Star Chamber. Enough with the disparagement of constitutionalism as powdered wig governance. The “modern” administrative state is governance by despots in Elizabethan breeches and piccadills. There is nothing new about any of this.

The growth of constitutional liberty was a long slog, and the Glorious Revolution of 1688 was one great victory over the dogma of the “royal prerogative.” The American War for Independence was another great moment in that same struggle. The result of the American resistance to arbitrary government was our written Constitution, a document expressly designed to prohibit the kind of governance we now suffer. The fact that this Constitution was designed to prohibit the current shenanigans is something that Hamburger demonstrates again and again.

Royal Prerogative

We have determined that the employer mandate may be waived for the present, as it suits our pleasure . . .

Do you want to know why Obama thinks he can simply alter the requirements of Obamacare? Congress passes a law, he signs it into law, but then when aspects of it land heavily upon certain lords and barons who are friendly to the crown, he just issues his administrative waivers — his “suspending and dispensing powers,” as Henry VIII would have called them. As Scott Johnson put it, this is a “new old regime.”

There are two great takeaways from this book. The first is that our current regime is an old enemy in a new guise. It was not a development that the Founders could not have anticipated — it was their old foe. They knew it quite well. They knew the arguments of expedience and necessity, and they rejected them. They rejected them at the root and in the flowering fruit. They wanted nothing to do with it.

The arguments for administrative law are therefore arguments for absolute power. The whole thing is deeply and profoundly unlawful, illegal, and subversive. The ruling elites always gravitate toward this kind of dry rot polity, all while assuring us that everything is perfectly sound. But this book will forever dispel their ability to lie that particular lie.

The second takeaway is an implication of the book for those Christians who take their faith seriously, and who therefore believe that we have an obligation before God to be law-abiding citizens (Rom. 13:1-7; 1 Pet. 2:13-17).

In this respect, the title of this book is explosive. Is Administrative Law Unlawful? The answer to this question is provided over and over in the course of the book, and the answer is that administrative law is unlawful. It is not binding. It is lawless. It is rebellion. It is subversive. It follows then that those who reject its authority are not rejecting authority — just the reverse, actually.

There are of course a host of practical questions that arise. But before tackling the practical questions, it is important to get the theory straight. Whether or not a particular agency has enough SWAT teams to take my property away from me, I should at least be clear that when they do, they are the ones being the outlaws. Resisting them in whatever ways I can ought not to be a burden on my conscience. And to be perfectly frank, not resisting them should be.

Whatever you do, get this book. For all your getting, get wisdom (Prov. 4:7).

Mission Drift

Mission Drift (Minneapolis: Bethany House, 2014)

A good rehearsal of the basic principles necessary to keep organizations from going the way of all flesh. The New St. Andrews board reads a book together in between each of our quarterly board meetings, and this was the one on tap. It contained some really good ideas. A great read if you serve on any boards at all. You might want to say, “Well, that goes without saying.” But it doesn’t.

Not My Circus, Not My Monkeys

The Dems are talking up the prospect of impeachment for the president right now because they know what a loser issue that would be for the Republicans, and the Democrats desperately need for the Republicans to obtain for themselves a loser issue that can be wrapped around their necks. They are able to talk it up because even though the Republican leadership is (wisely) dismissing such talk with contempt, there is a high level of frustration with the president’s behavior in the Republican base. The leadership is attempting to vent this frustration with their lawsuit, seeking to head off any talk of impeachment. The last go round with all this, when Clinton was impeached, was disastrous for the Republicans, because they treated ordinary politics as though it were something else. When you start killing ants with a baseball bat, the rest of the story will not go well for you.

For our foreign readers, in our system a president is impeached when the House of Representatives brings articles of impeachment. It is like being indicted — the trial is yet to happen. The House prosecutes the case, and the Senate serves as the jury. Thus when a president is impeached by the House, he will then be convicted (or not) by the Senate.

Up to this point in our history, impeachment has only been on the table three times. The first was when Andrew Johnson was impeached, and barely escaped being removed from office. But this was in the immediate aftermath of the Civil War, when something like impeachment was comparatively small beer. The second time was when Richard Nixon saw the handwriting on the wall, and resigned rather than face removal from office. He knew that if his case went before the Senate, there was a high likelihood that he would be convicted. The third time happened with Bill Clinton. He was impeached, but not convicted, and the Republicans had to deal with significant blowback for making the attempt.

A peach for our president.

A peach for our president.

In the modern era, the only way impeachment could possibly obtain a conviction would be if the entire country were overwhelmingly united behind the effort. This would have to include both the House and Senate being ready to convict, and it would also be necessary to have the mainstream media — The Washington Post, The New York Times, the major networks, etc. — all calling for the president’s head as well. And let us be honest, you and I. The only way the mainstream media would be at all behind the impeachment of President Obama would be if, at the State of the Union address, the president pulled off his rubber mask and announced that he was an alien creepizoid from the Planet Kenya. And even then, it would be touch and go.

So the reason Republicans (whether in the leadership or in the base) ought not to be talking about impeachment right now is that they don’t have the resources (Luke 14:31). As St. Augustine once succinctly put it in his treatise on just war, don’t start what you can’t finish.

America’s Udder

The reason we have an immigration problem is not because we are welcoming people to America, but rather what kind of America we are welcoming them to. This in turn has an effect on what kind of people seek to be welcomed here, which then provokes the wrong kind of reaction on our part, and which results in a series of actions and reactions not unlike a child’s party balloon that was not tied off yet but was over-inflated, and then let go.

We have two presenting issues on our southern border. One is the border security itself, and the other is all the stuff we are doing that creates the need for border

A low-information voter, weighing his options.

A low-information voter, weighing his options.

security in the first place. What we are doing wrong would include, but not be limited to, anchor babies, food stamps, other forms of welfare, free education, and so on. You get more of what you subsidize and less of what you don’t. There are very few things quite as destructive as American good intentions. If we then add to the mix the problems caused by American bad intentions, everything gets really complicated. What would happen to the drug cartels if Americans quit snorting their happy powder? And, incidentally, that problem is not going to be solved by a federal “war on drugs,” what a joke, but rather by Americans doing what previous generations of Christians used to quaintly call “repenting.” A whole host of our “political” problems have no political solution.

Back to immigration. In the current set-up, conservatives have a point when they say that we need to get control of the border first, and then talk about what to do with the millions of ille . . . oops, almost did a bad thing . . . undocumented ali . . . oops . . . what a klutz I am being this morning . . . undocumented personages. Ah, for the halcyon days when folks could just say wetbacks and nobody minded!

Let me take a brief moment to explain that I was not using the word wetback there, but rather was observing that there was a time back in Eisenhower’s day when other people did that kind of thing, and what I did was all in the third person, and so I would suggest, with all appropriate modesty, that I should not be arrested for merely reporting on these facts. Yes, someone might reply, but you were being simultaneously provocative and coy, and we are on to your tricks. You were really making a point that was plainly critical of the current diktats of our most revered speech police, and therein lies your real crime. Well, yes, I guess I was doing that. That is my real crime. I do confess it.

A Pretty Firm Grip on the Ears

In a perfect world, I wouldn’t have to preface my remarks with any of these qualifications, but then again, in a perfect world, we wouldn’t have our perennial crisis in the Middle East. And so it would be that I would not have to say anything at all . . . in a perfect world.

But here are the qualifications. Israel is a sinful nation, and they need to hear the message of Christ desperately. They are a Western nation, transplanted by Zionists into a troubled part of the world, said transplanting not commending itself to me as having been a good idea. They share the strengths of the West, as well as all the decadent weaknesses. They are in an extraordinarily challenging situation, largely created by the lords of the earth drawing hubristic lines on the map after the First World War. In short, they have a grizzly bear by the ears. On the bright side, they currently have a pretty firm grip on those ears, but the long term prospects are not rosy.

I say all that as a preface so that I might give as resounding a statement of support for Israel in the current conflict as I possibly can. One of the deadliest traps in analyzing conflicts between nations is arbitrarily to postulate moral equivalence where there is none. There are multiple situations where a “faults on both sides” approach just won’t cut it, and this is one of them. If you want to know the difference we are dealing with, Israel uses its missiles to defend its children, while Hamas uses its children to defend its missiles. That’s all you really need to know about this conflict.

I have gone over this before, but it needs to be said again and again. Terrorism is not to be defined as what the big army accuses the little army of doing. That is way too facile. Hamas targets civilians deliberately, as a matter of cold policy, as a matter of course. Israel goes to extraordinary lengths to prevent civilian

Trolling for aggression in Gaza.

Trolling for aggression in Gaza.

casualties. Simply on the basis of what both sides openly commit themselves to, we should be able to take it from there. We should simply condemn the avowed depravity of Hamas, and not allow them to distract anybody by wailing about “the conditions” that drove them to it. The conditions that drive them to these insanities are nothing but the smoking craters left over from the previous round of insanities.

Creed Pres

The Creed of Presbyterians (NL: Fredonia Books, 1901)

I enjoyed this very much. It is a bit too rah-rah in places, and I read an early version of it (1901), written before the author was bedazzled by Barth. At the same time, it was heartening to be reminded yet again how much good Calvinists have introduced into the world.

Envy Impaled

Doug Jones was good enough to reply to my recent post on envy, and his reply showed up the necessity of making a couple of additional points. The basic point remains unchanged, although if I want the board to stay up I will have to put a couple more nails in it.

First, the mere fact of conflict does not enable us to say that every party in the conflict is gripped by envy. The goal of the envious is to make the conflict look like it was caused by the object of his envy. Envy specializes in false flag operations. The passages I cited showed that Jesus and the apostles found themselves in conflicts, and found themselves there because of envy. But the envy was located in their adversaries, not in them. So the formula is not: conflict > envy in all combatants, but rather conflict > envy here somewhere.

Reading the story means that you have to have the ability to look at the conflict, know that envy is a likely driver, and then successfully identify the protagonist and antagonist. If you read Beowulf and find yourself sympathizing with Grendel, that should be a danger sign.

Second, to identify the dark impulses of envy is to describe the human heart as Scripture describes it. If you were to walk up to a stranger on the street, stop him, and tell him about his specific dark impulses, then that would be an ungodly attempt to read hearts. But if you saw the apostle Paul drawing bigger crowds than the scribal ditherers ever could, and then saw those same scribes stirring up a mob, “dark impulses” is a good way to describe what is happening. When this is preached and declared (as the Bible does), the hope is that the Spirit will cause the declared Word to penetrate the hearts of the envious so that they will admit to themselves what has been kind of plain to them for a while — that they are consumed with envy. “For the word of God is quick, and powerful, and sharper than any twoedged sword, piercing even to the dividing asunder of soul and spirit, and of the joints and marrow, and is a discerner of the thoughts and intents of the heart” (Heb. 4:12). An effective preacher unleashes the Word in a situation that looks like this, but it is the Word that does the discerning of the thoughts and intents of the heart. When that is done, it is done for the person afflicted by it, and the result is repentance. But repentance for envy is not going to happen without the sinfulness of envy being declared. And how shall they hear without a preacher?

The Crawling Snake of Envy

I said recently that envy is the great invisible driver in our modern political conflicts. On what basis can I say this, and is this not a case of trying to read hearts?

First, we see the simple statements of Scripture as treating envy as public, visible, identifiable. But first, hold your horses. A bit further down, I will conclude by reconciling my point that envy is “visible,” and yet is the “great invisible driver.”

So then, where does Scripture describe envy as a public kind of sin? Pilate knew why Jesus was on trial before him, and it had nothing to do with the actual charges.

“For he knew that the chief priests had delivered him for envy” (Mark 15:10).

Stephen, narrating the story of Joseph and his brothers, interpreted their hostility toward Joseph as driven by envy, even though the Genesis account doesn’t mention the envy by name (Gen. 37:4). The writer of Genesis says that the brothers saw that Jacob loved Joseph more, and they hated him — which is an instance of envy.

“And the patriarchs, moved with envy, sold Joseph into Egypt: but God was with him” (Acts 7:9).

Luke records the fact of mobs forming, but he is also able to tell (at a glance) why they were forming.

“But when the Jews saw the multitudes, they were filled with envy, and spake against those things which were spoken by Paul, contradicting and blaspheming” (Acts 13:45).

“But the Jews which believed not, moved with envy, took unto them certain lewd fellows of the baser sort, and gathered a company, and set all the city on an uproar, and assaulted the house of Jason, and sought to bring them out to the people” (Acts 17:5).

Failure to see envy is therefore not an instance of nobly refraining from reading hearts. It is actually a refusal to read the story. So then, do not try to read hearts, which only God can do, but feel free to read the story. Envy has public manifestations, and if you have those manifestations, then you have envy. That is what you are reading.

In addition to the fact that envy results in very public behavior that is readily identifiable, the Scriptures also teach us to see envy as a driving element of all conflicts. So to ask whether or not envy is present in our politics can be answered by asking whether conflict is present in our politics. Conflict is the smoke, but envy the fire.

“From whence come wars and fightings among you? come they not hence, even of your lusts that war in your members? Ye lust, and have not: ye kill, and desire to have, and cannot obtain: ye fight and war, yet ye have not, because ye ask not . . . Do ye think that the scripture saith in vain, The spirit that dwelleth in us lusteth to envy?” (James 4:1-2, 5).

What does envy travel cheek by jowl with? Who are its traveling companions? Well . . . “envy and strife” (Phil. 1:15), “envy, strife, railings, evil surmisings” (1 Tim. 6:4), and “malice and envy, hateful, and hating one another” (Titus 3:3). Let me ask a simple question — in our political contests, do we have strife, railings, evil surmising, malice, and hatred? Sins are like grapes — they come in bunches, and with this variety of grape, envy is chief among them. In our modern political discourse, envy is like a rancid cluster from Eshcol, with two socialists carrying their economic agenda on a pole between them (Num. 13:23). It is not at all hard to identify — I mean, the grapes are the size of baseballs.

This just in. Michael Moore, champion of the working guy, is the owner of nine houses, including a Manhattan condo. Am I revealing an envious heart along with these details? Not a bit of it! I don’t want to take away any of his houses, and in fact, I am willing to wish that he acquire a couple more. What I wish he would lose is the Everyman Shtick. And the baseball hat.

Envy is the purloined letter of vices. It is hidden in plain sight. For those who have eyes to see, it is everywhere. For those who have a vested interest in not seeing it, things are quite different. Vested interests are quite an interesting phenomenon. As Upton Sinclair put it once, “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” And it is impossible to get a man to see something when his entire notion of a self-identity and respect depends upon his not seeing it. Men can take perverse pride in a lot of vices — drunkenness, fornication, anger, pride, casino heists — but no one wants to acknowledge the crawling snake of envy, however big it is — that dark impulse to hurt anyone who seems to have a superior capacity for happiness. It is almost impossible to see that snake without feeling like a snake, and so we have whole industries and political movements dedicated to helping us not see what we in fact are.

So what I mean is that envy is visible in principle, for those who have the vantage to see it, but that it is invisible whenever it is pridefully unacknowledged — which is virtually all the time.

We are in fact an envy-ridden people, and to see that fact straight on would be indistinguishable from repentance. And so we don’t look at it straight on.