Posner and Gorsuch

Wooden Gavel with book over white

As the Senate prepares to question Judge Neil Gorsuch for possible appointment to the Supreme Court, my former colleague Eric Posner asks: “Is Gorsuch a Hamburgerian?” Posner thereby attempts to set up Gorsuch by associating him with . . . not really me, nor my scholarship, but a boogeyman of Posner’s imagination.

The version of my scholarship Posner presents to the world is almost unrecognizable: “Hamburger is anti-elite”; “Hamburger is anti-foreigner”; “Hamburger is anti-executive.” These views bear no resemblance to my scholarship or my personal opinions, and it therefore is necessary to state my views as they really are.

There is nothing “anti-elite” in explaining the U.S. Constitution’s representative form of government and its guarantees of rights. Nor is there anything anti-elite in studying the role of class in the development of administrative power.

My scholarship (past and forthcoming) argues that administrative power undermines equal voting rights by shifting much lawmaking power out of Congress into the hands of unelected administrators. My work shows, moreover, that this shift occurred when the knowledge class regretted the boisterous sort of politics that came with equal voting rights. Woodrow Wilson candidly explained that “the reformer is bewildered” by the need to persuade “a voting majority of several million heads”—especially when the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” One could go on at length with such quotes, and certainly administrative power has been dominated by whites of a certain class, but the point is not narrowly about racism. Instead, it is about how a class that expected deference to its knowledge was disappointed with the results of equal suffrage in a diverse society. It therefore welcomed a transfer of lawmaking power out of the elected legislature and into the hands of the right sort of people.

The argument, in other words, is not against an elite, but against the administrative dilution of representative government and equal voting rights. There will always be elites, and this is part of the valuable differentiation that can occur within a free society. Rather than oppose such differentiation, my scholarship suggests that all Americans, even elites, should confine themselves to working through the Constitution’s representative framework of government.

The arguments in my administrative law book are not “anti-foreigner” (or anti-anyone). The book observes how absolute power, in administrative form, was imported into the United States from the Continent, especially from Prussia. As explained in the book, the point is not about foreigners, but about a dangerous type of power. Nonetheless, on the basis of my argument about the reception of administrative power from Germany, Posner reaches the astonishing conclusion that “Hamburger is anti-foreigner.”

In fact, much of my work (past and forthcoming) argues forcefully against nativism and allied sentiments. Perhaps this reflects the fact that I was not born in this country. But my open attitude about immigrants is not merely personal. More seriously, it reflects my views on the sorts of differentiation, including ethnic differentiation, that have long been among America’s strengths.

My scholarship is not “anti-executive,” but anti-administrative.  Under the Constitution, executive and administrative power are different, and my argument against administrative power is not against executive power—unless by “executive power” one means unconstitutional power exercised by the executive.

In the end, Posner is surely attacking someone’s arguments. But those arguments are not mine.

Reader Discussion

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on March 17, 2017 at 09:18:53 am

The acorn--or, in this case, the nut--does not fall far from the tree.

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Image of Mark Pulliam
Mark Pulliam
on March 17, 2017 at 11:07:14 am

Regrettably, that NUT has proven remarkably prodigious in reproductive capability, and would now seem to dominate the orchard.
Spring is a good time for the application of "pre-emergents" such as Preen; better that than recourse to herbicides.

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on March 17, 2017 at 12:22:39 pm

Prof. Hamburger:

"My scholarship (past and forthcoming)..."

any hint as to when (what) we may see this *forthcoming* scholarship?

It has been remarked that "The poor will always be with us"
Let me add: "The elites will always be with us as well."

There is nothing wrong, BTW, with being "anti-elite", if that is defined as exhibiting a healthy skepticism as to their ability to recognize, remediate and resolve political problems.

So let me further add, "there will always be anti-elites - Embrace it!

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Image of gabe
on March 17, 2017 at 12:37:12 pm

So here is an interesting one:


with a brief extract at Originalism Blog:


What are we to make Mr Wurman's attempt to make *constitutional* what is generally regarded as a violation of the non-delegation doctrine?

If i argue that Willie Sutton was not robbing banks, but rather was simply exercising a "delegation" of withdrawal rights by a small number of depositors, and IF I exercise some review over Willie's *withdrawals*, do we still have a bank robbery?
Admittedly, we may limit Willie's acquisitiveness but.... Willie is still drawing upon 8grants8 that are not his own.

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Image of gabe
on March 17, 2017 at 13:09:53 pm

The real "Hamburgerian" scholarship, not its mischaracterization by Eric Posner, is something for which many people are grateful because it addresses what's inherently troubling about the administrative state under the Constitution.

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Image of Mark Fitzgibbons
Mark Fitzgibbons
on March 17, 2017 at 13:58:13 pm

Posner wrote it was during the Obama administration "when all these themes came together in the darkest recesses of the reactionary imagination. "

Let me say what I believe Hamburger is too polite to say. Posner is the poster child for the conspiracy theory left who reads sinister motives into any observation that violates progressive orthodoxy. Reading him you get the impression he can barely hold back his disdain.

I wish someone would teach this generation that it is no accomplishment to be civil to those who agree with you.

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Image of Anthony Dorazio
Anthony Dorazio
on March 17, 2017 at 14:18:24 pm

There is a recognizable and tiresome pattern in political discourse in which all policy discussions are interpreted as expressions of animus toward one group or another. Free speech is not viewed as an essential element of a free society, it is a vessel of islamophobia, misogyny, racism and other hurtful antagonisms of vulnerable classes. People who are alarmed at the abysmal performance of public schools in thrall to the teachers unions are "anti-child." Of course, the murderous Marxist regimes of the twentieth century claimed that those who opposed policies that led to the deaths of tens of millions of people were "enemies of the people." But now we are approaching the inevitable collapse of this type of nonsense, which has stunted the growth of once-fertile legal minds such as Professor Posner.

The "elites" lash out by accusing their critics of being against the very people that are harmed by those elite's stupidity, self interest, and incompetence. The failures of the welfare state will not be sustained by claiming that those who recognize them hate the poor, nor will the Affordable Care Act thrive because of lazy accusations that those who see its impracticality bear ill-will toward the sick. Pointing out the short-comings of the elite is not evidence of disdain for those groups to whom the elite pay lip service when it is cheap and expedient, but whose lives are otherwise burdened by bad policy.

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on March 17, 2017 at 15:54:46 pm
Image of Ken Masugi
Ken Masugi
on March 17, 2017 at 16:08:39 pm

And lest we think that this "ill-will" is something new, something not inherent in the Progressive mindset / toolbag, we have the *wisdom* of Woodrow Wilson (via the incomparable Steven Hayward (Powerline Blog) , "The Threat to liberty" an essay in the current issue of CRB):

"Between the ideology of Progress as understood by the visionary "Leader" and the doctrine of scientific administration, a new understanding of the difference between the ruler and the ruled took hold - and it isn't good news for the ruled. Despite his frequent obscurity and paeans to democracy and the "will of the people," Wilson argues at one point in "Leaders of Men" {an 1890 essay] that the *vision* of Progress is the new Supreme force in politics: "Resistance is left to the minority, and such as WILL NOT BE CONVINCED ARE CRUSHED." (caps added).

How is that for the little acorn growing into a mighty, multi-trunked behemoth overshadowing the landscape?
The shadow has ALWAYS been there, kiddies!

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Image of gabe
on March 17, 2017 at 16:30:54 pm

[…] The fight against the Gorsuch SCOTUS nomination begins with the usual mischaracterization of his legal positions by opponents.  In this case the attack is made by Eric Posner through Philip Hamburger and a convenient straw man: […]

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Image of Gorsuch v. the administrative state | Questions and Observations
Gorsuch v. the administrative state | Questions and Observations
on March 17, 2017 at 16:39:43 pm

Posner is probably still smarting over how Gorsuch evaluated his stance on assisted suicide and euthanisia as logically self-contradictory and without merit in his 2006 book, "The Future of Assisted Suicide and Euthanaisia".

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on March 17, 2017 at 17:54:14 pm

(Gulp) "Crushed"? Holy Middlebury, Woody! Princeton in the woods!

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Image of Ken Masugi
Ken Masugi
on March 17, 2017 at 21:39:07 pm

Having read two of Hamburger's thickest books (Is Admin Law and Separation) and some of the Posner writing (dad and kid) I see no elitism and lots of groundbreaking insight in Hamburger, lots of useless obscurantism in Pa Posner and lots of tiresome ad hominin in Posner the younger.

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Image of timothy l. harker
timothy l. harker
on March 19, 2017 at 10:02:25 am


Eric Posner seems to be jealous that another academic has more influence than he does, just as his father seems bitter never to have appointed to SCOTUS. Well, thank God for that. Megalomaniacal ego must run in the family.

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Image of Mark Pulliam
Mark Pulliam
on March 19, 2017 at 12:54:16 pm

The point I wish to make is let's stop bashing and making snide remarks about Richard and Eric Posner. You should be so lucky to have the talent of writing half equal to Richard Posner.

I am not a Lawyer, only an ordinary citizen, but having read as much as I have that Richard Posner wrote I have become a sincere admirer of the Academy. I am impressed with the absolute indispensable fact and body of law in a civil society. My ardent wish is to see the day when all Lawyers succeed in having the Academy promote of the right to counsel for all men, regardless of circumstance or station in society. That a free society does not have as a matter of right the assistance of counsel to a court, if requested, is remarkable for its hypocrisy. If all men were Lawyers we would not need Lawyers.

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Image of Martin Kessler
Martin Kessler
on March 19, 2017 at 13:27:25 pm

Is his *scholarship* as "off-point" and non-responsive as was his response to Hamburger?

Goodness gracious! - although I suspect that his response will be sufficient in itself for his legion of "shadows."

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Image of gabe
on March 19, 2017 at 18:46:30 pm

[…] What else can we expect these next four days? Questions regarding voting rights, campaign finance reform, separation of powers, questions as to why he’s against the ‘little people,’ and why administrative power is supposedly anti-immigrant and anti-foreigner (hint, it’s not). […]

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Image of What To Expect During The Gorsuch Confirmation Hearing [LIVE FEED HERE] - Victory Girls Blog
What To Expect During The Gorsuch Confirmation Hearing [LIVE FEED HERE] - Victory Girls Blog

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.