Purchasing Submission: Conditions, Power, and Freedom

From a leading constitutional scholar, an important study of a powerful mode of government control: the offer of money and other privileges to secure submission to unconstitutional power. The federal government increasingly regulates by using money and other benefits to induce private parties and states to submit to its conditions. It thereby enjoys a formidable power, which sidesteps a wide range of constitutional and political limits. Conditions are conventionally understood as a somewhat technical problem of "unconstitutional conditions"-those that threaten constitutional rights-but at stake is something much broader and more interesting. With a growing ability to offer vast sums of money and invaluable privileges such as licenses and reduced sentences, the federal government increasingly regulates by placing conditions on its generosity. In this way, it departs not only from the Constitution's rights but also from its avenues of binding power, thereby securing submission to conditions that regulate, that defeat state laws, that commandeer and reconfigure state governments, that extort, and even that turn private and state institutions into regulatory agents. The problem is expansive, including almost the full range of governance. Conditions need to be recognized as a new mode of power-an irregular pathway-by which government induces Americans to submit to a wide range of unconstitutional arrangements. Purchasing Submission is the first book to recognize this problem. It explores the danger in depth and suggests how it can be redressed with familiar and practicable legal tools.

About the Author :
Philip Hamburger is Maurice and Hilda Friedman Professor of Law at Columbia Law School and President of the New Civil Liberties Alliance. A member of the American Academy of Arts and Sciences, he is the author of Separation of Church and State, Law and Judicial Duty, and Is Administrative Law Unlawful?

Review :
Hamburger has done admirable service excavating and exploring the ways in which purportedly voluntary concessions are a means of extending government power and control. If this book does nothing but enhance our collective vigilance to the danger of purchased submission, it will have performed an essential service. A damning indictment of the administrative state…Hamburger has written an incisive and thorough book on the federal government’s campaign to impose an Orwellian dystopian and totalitarian regime on the populace. Hamburger provides a radically new perspective on our constitutional system’s condition…[A] brave, insightful book. The issue of administratively imposed legal requirements arises in multifarious forms in connection with the Covid-19 epidemic. Federal vaccination requirements backed by the imposition of conditions are one such form. Professor Hamburger’s new book therefore could not be more timely. It seems uncannily to have been written in anticipation of this moment. Professor Hamburger takes on the whole of government by challenging regulation effected by bureaucratic bribery, extortion, and barratry. He traces actions of federal, state, local, and private agents that procure what passes as the ‘consent’ of the governed, to submission and further crimping of our liberties. A powerful analytical framework by which to combat encroachment on our rights by government in all its forms, and by government’s private proxies. To the venerable doctrine of ‘unconstitutional conditions’—the deceptively simple idea that government may not do indirectly what it may not do directly—Philip Hamburger has brought his great talents as a political theorist, law professor, and civil libertarian. Following his pathbreaking earlier work on the perils of government by the unelected agents of the administrative state, he now contributes deep insight and learning to the phenomenon of legal power exercised by the richest potentate in America: the federal government. An important and welcome contribution to the history and politics of the modern American state. This book brings to light, in one place, the myriad ways in which the federal and state governments purchase our submission to conditions—some of them unconstitutional—without going through the regular legal order of legislation or even administrative rulemaking. From the licensing of broadcasters to the ‘chemical castration’ of sex offenders, to surprise inspections of AFDC households, transactional government buys our consent to what the author rightly calls ‘an alternative mode of governance.’ Having already taught us how administrative power has displaced the legislative and judicial processes for enacting laws and adjudicating cases, Professor Hamburger now explains how government’s placement of conditions on spending and other government benefits also displaces constitutional processes and risks undermining our constitutional liberties. It is not a happy book, but one that is essential reading. Eye-opening. This important book lays bare a critical threat to our liberty and basic structure of government, explaining how our own tax dollars are being used to purchase consent and to obviate the need for the government to regulate through more accountable channels. Equally important, it offers concrete suggestions to retool constitutional doctrine to meet the realities of how we are now governed. Philip Hamburger is one of the most important legal scholars in America…In Purchasing Submission, Hamburger turns from the administrative state to another cancerous growth of governmental power that operates parallel to the constitutional framework. Here, the federal government’s sheer purchasing power becomes another means of sidestepping the Constitution and dominating citizens outside the rule of law.