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OLYMPUS DIGITAL CAMERAThe first week of July, should be celebrated by us all, for this week, above all others has made our world, under the leadership of the English speaking people, free.

Don’t think so? Let’s look at it.

1 July is Canada Day. The Canadians aren’t nearly as noisy as the rest of us, granted, but they may have done more, per capita for freedom than any of us. Not for nothing did General Eisenhower, himself, say that the best troops under his command were the Canadians.

2 July has two events.

In 1776 the Continental Congress adopted Richard Henry Lee’s (Virginia) motion that “These colonies are, and ought to be, free and independant States.” We’ll speak more of this later.

The major event of 2 July was 132 years before that day in Philadelphia was the Battle of Marston Moor, where the English Civil War turned irretrievably toward Parliament’s victory, thereby assuring that the end of extra-legal rule by the King.

And of course, 238 years ago today, the Continental Congress signed Mr. Jefferson’s Declaration that starts

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Marston Moor and the Declaration are in exact alignment with each other. This was really not much more than the English Civil War moved to the New World. The causes were the same (arbitrary government) and even the names were the same. Many, many colonists had returned to England to fight with their families in the Civil War.

Other dates can be added of course, the signing of Magna Charta, Henry VIII’s break with Rome, the Glorious Revolution of 1688, even the ancient memory of King Alfred the Great’s Charter, but what they add up to is the separation of the English speaking people from the authoritarianism of Europe. And the supremacy of the people in in Parliament (or Congress) assembled.

All through our history we have fought against tyranny, and for the  Rule of Law. What do we mean by that? We mean, and we have always meant, the objective rule of law, not men.

But we need to be careful, we have done well over the last thousand years but, we will never win this war, no matter how many battles we win. There are always men who would rule as absolute monarchs, and they often repackage their tyranny in what looks like new and shiny packages. So it is now.

Philip Hamburger is the Maurce and Hilda Friedman Professor of Law at Columbia Law School. He is a distinguished scholar of legal history and the author, most recently, of Is Administrative Law Unlawful?

But what is administrative law, and why are you talking about it now? It’s a quite simple answer, and I’ll let Professor Hamburger tell you.

[…]Administrative law is commonly defended as a new sort of power–a modern power that developed mostly in the twentieth century to deal with the complexity of modern society. And, at first glance, there is some truth to this story.

The federal government began to exercise administrative power only in the late nineteenth century and gradually made it a central mode of governance during the twentieth century. For example, it expanded administrative regulation in the 1930s and again in the era since the 1970s. Administrative law thus seems to enjoy legitimacy as a modern response to modern society.

Sociologically, the message is one of modernity and necessity–that administrative law is a novel type of power, which is needed to handle the complexity of an advancing society. It thus is anti-modern and Quixotic to resist this power.

Constitutionally, the message is that administrative law developed after the adoption of the Constitution. Administrative power thus (allegedly) could not have been anticipated by the Constitution. From this perspective, although this sort of power is not constitutionally authorized, neither is it constitutionally barred. It therefore (supposedly) can be lawful as a necessary and modern addition.

Such is the conventional history of administrative law. And it is a reassuring story, if you believe it.


In reality, administrative power has a much older and darker history. Far from a novel and modern response to modernity, it revives what used to be called prerogative or absolute power. Put more concretely, it revives extralegal power. It thus is exactly what constitutional law developed in order to prohibit.[…*]

And so we see that administrative law is nothing but the return of feudalism in all its capriciousness. Seems to me that those 56 mostly young men in Philadelphia back in 1776, very few of whom prospered and many of whom died penniless, had something to say about how we remain free.

Oh yes, this was it.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Emphasis mine

Why would we assume it will be any easier for us?

Do we still believe: “It is better to die on our feet than to live on our knees“? Or maybe we don’t…

Nor should we forget that the landmark study in economics, “The Wealth of Nations”  was published by that canny Scot Adam Smith in 1776 as well, and thus was provided for the incredible gain in living standards of the last 200 years.

Something else we have in common: This. Best known from Rorke’s Drift, it was also heard at the 1st of Ia Drang, and at the World Trade Center on 9-11-01