Prof. Hamburger’s 2014 book “Is Administrative Law Unlawful?” is described by National Review as a “serious work of legal scholarship on the return of the prerogative to our government.”
The professor shows how the unlimited power of the administrative state comes from the King’s prerogative, a special power that the Constitution was designed to prevent.
Published in 1890, Bancroft’s Works* Vol. 38 Essays and Miscellany at page 284 describes the English-American jury trial right as the end to the King’s prerogative.
And that begs the question: Did the Nevada rancher get a jury trial with regard to the taking of his preference grazing rights? Will we get jury trials when the same bureaucrats impose encumbrances through the 1973 Endangered Species Act on private Texas land?
Bancroft: “The right of trial by jury comes to the Englishmen more directly in the form of a victory. During the dark centuries, prerogative or despotism denied such a right.” Bancroft refers to the “… subtleties of the royal prerogative, or the learned malevolence.” Malevolence is defined as a vicious ill will.
“But later, with increase in intellectual strength and material stability, the people intrenched[sic] themselves in their rights, and since the magna charta this privilege has been held the dearest of a progressive people. It was a right guarded with vigilant care, and for which intelligent freemen everywhere would fight and die. To America came this sentiment, and was embodied in the constitutions of several states.”
“The victory originally achieved by the people over the government by the establishment of the jury system was the right of participation in the administration of the law. No man might thenceforth be jeopardized in person or property without appeal to his fellows for redress.”
“It was a sign of the increasing purity of political character and growing love of honesty and fair play.”
Bancroft goes on to state that, “When the government and the people were one the victory was complete.”
But with the lesser prairie chicken land grab, there is no jury trial right. We are called to evening meetings to participate in our own centrally planned and controlled impoverishment, the systematic destruction of American exceptionalism, and are allowed only to make ignorable comments about confiscatory administrative regulations that routinely and stubbornly violate ancient state land law, the US Constitution and our human dignity.
Control equals wealth. State/centralized control equals wealth for a tiny few politically well-connected people who can sometimes be referred to as oligarchs. Decentralized control means decentralized wealth, the same system that allowed my family and many millions of others to prosper in America according to our personal industry, luck, decision-making, risk-taking and more. The wealth from decentralized control created the highest per capita income in the world for Americans since the early 1830’s. On the other hand, centralized control of the modes of production, as Karl Marx puts it, is a proven 180 year loser, not to mention some 100 million deaths, subhuman misery and enslavement.
The politically deadly characteristic of the reborn prerogative is that it can contain and disguise and impose any -ism, if you will, on the American people. The prerogative can harbor the cancer of Communism, fascist Nationalism, environmentalism, worship in Gaia, animal liberation, earth liberation and Satan’s attitude of scarcity, just whatever the King wants. And all the -isms except individualism rob us of our God-given rights as set out in the Constitution.
By keeping us under-educated, a nationalized American educational system can serve to keep us too ignorant to learn how to simply say No and to get things turned around. The idea of personal liability imposed on the errant bureaucrat as discussed by Prof. Hamburger is appealing and might be the exact place to start. Especially on those who turned loose the wolves. In my opinion, it is worth a try.
Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.
*Notice that this volume of Bancroft’s Works was once owned about the 1950’s by a Texas public high school.