The Power Revolution: What the Judges Have Wrought

From a renowned legal scholar, a tour d'horizon of the Supreme Court's gradual erosion of constitutional rights and limitations on federal power.

Ambitious and erudite, The Power Revolution is the magnum opus of one of our most incisive constitutional scholars. For decades, Philip Hamburger has been a shrewd analyst of mounting federal power-in particular, the growth in executive power enabled by a virtually unfettered administrative state. Here, he widens his lens, detailing the larger historical processes by which the Supreme Court has watered down individual rights while aggrandizing itself and the other federal branches.

Hamburger locates the key sites of constitutional erosion. Of profound importance has been the Court's removal of limits on Congress's power to tax and spend, achieved by eliminating the requirement that such legislation benefit all citizens, as opposed to special interests. Meanwhile, adopting progressive arguments, the Court has nurtured runaway expansion of the "necessary and proper" clause, judging more and more actions permissible. Then too, the Court has repeatedly increased its authority to act through discretion, to the point of placing its own precedents above the Constitution. And there is that administrative state, empowered through the unconstitutional delegation of substantive powers and, today, serving as the unilateral arbiter of access to critical government grants and licensures. Hamburger shows how new interpretive methodologies have become dependable vehicles for these constitutional subversions.

The Power Revolution calls for a revival of "natural law positivism," the eighteenth-century baseline in natural law from which deviation can be justified, Hamburger argues, only by consent of the people. That is a tall order, but it will take bold efforts to restore the Constitution the justices have denied us, one decision at a time.