Law Commons^™

The Administrative Threat To Civil Liberties, Philip A. Hamburger

Faculty Scholarship

Administrative power is the greatest threat to civil liberties in our era. Traditionally, the most systematic threats to civil liberties came in attacks on particular groups, and this remains a problem. But increasingly, there are also broader threats, which affect the civil liberties of all Americans, and administrative power is the primary example of this broad sort of danger. No single development in our legal system deprives more Americans of more constitutional rights. It is therefore not an exaggeration to say that it is our greatest threat to civil liberties.

The Administrative Evasion Of Procedural Rights, Philip A. Hamburger

Faculty Scholarship

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties.

In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts …