Americans are increasingly ruled by an unwritten constitution consisting of executive orders, signing statements, and other forms of quasi-law that lack the predictability and consistency essential for the legal system to function properly. As a result, the U.S. Constitution no longer means what it says to the people it is supposed to govern, and the government no longer acts according to the rule of law. These developments can be traced back to a change in “constitutional morality,” Bruce Frohnen and George Carey argue in this challenging book. The principle of separation of powers among co-equal branches of government formed the cornerstone of America’s original constitutional morality. But toward the end of the nineteenth century, Progressives began to attack this bedrock principle, believing that it impeded government from “doing the people’s business.” The regime of mixed powers, delegation, and expansive legal interpretation they instituted rejected the ideals of limited government that had given birth to the Constitution. Instead, Progressives promoted a governmental model rooted in French revolutionary claims. They replaced a Constitution designed to mediate among society’s different geographic and socioeconomic groups with a body of quasi-laws commanding the democratic reformation of society. Pursuit of this Progressive vision has become ingrained in American legal and political culture—at the cost, according to Frohnen and Carey, of the constitutional safeguards that preserve the rule of law.

Americans are ruled by an unwritten constitution consisting of executive orders, signing statements, and other quasi-laws designed to reform society, Bruce Frohnen and George Carey argue. Consequently, the Constitution no longer means what it says to the people it is supposed to govern and the government no longer acts according to the rule of law.

“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous.” —Law and Politics Book Review While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.

A starting point for the study of the English Constitution and comparative constitutional law, The Law of the Constitution elucidates the guiding principles of the modern constitution of England: the legislative sovereignty of Parliament, the rule of law, and the binding force of unwritten conventions.

Normative Jurisprudence aims to reinvigorate normative legal scholarship that both criticizes positive law and suggests reforms for it, on the basis of stated moral values and legalistic ideals. It looks sequentially and in detail at the three major traditions in jurisprudence – natural law, legal positivism and critical legal studies – that have in the past provided philosophical foundations for just such normative scholarship. Over the last fifty years or so, all of these traditions, although for different reasons, have taken a number of different turns – toward empirical analysis, conceptual analysis or Foucaultian critique – and away from straightforward normative criticism. As a result, normative legal scholarship – scholarship that is aimed at criticism and reform – is now lacking a foundation in jurisprudential thought. The book criticizes those developments and suggests a return, albeit with different and in many ways larger challenges, to this traditional understanding of the purpose of legal scholarship.

In recent years, our constitutional order has increasingly come under attack as irredeemably undemocratic, racist, and oppressive. At the same time, it is increasingly obvious that politic practices in the United States have strayed very far from the founders’ designs and become deeply dysfunctional. The time is thus ripe for renewed reflection about the American political tradition. This volume reintroduces readers to the conservative tradition of political and constitutional discourse. It brings together prominent political scientists and legal scholars, all of whom were deeply influenced by the life and work of the eminent constitutional scholar George W. Carey. For over 40 years, Carey strove mightily to explain the nature and requirements of our political tradition. How it fostered meaningful, virtuous self-government, and how our constitutional tradition has been derailed by progressivist ideology. He is perhaps best known for his concept of “constitutional morality,” the understanding that our republican constitutional order can be sustained only by a combination of formal mechanisms (e.g., separation of powers) and unwritten norms (“standards of behavior”) that act to foster deliberation and consensus, as well as keep political actors within the boundaries of their constitutional offices. Contributors, including Francis Canavan, Claes G. Ryn, Paul Edward Gottfried, and Peter Augustine Lawler, discuss and develop Carey’s key insights, applying them to issues from the nature of majoritarian government to the purposes of constitutionalism to the decline of virtue that has accompanied the expansion of power among national and international elites. Each essay provides penetrating analysis of key aspects of our tradition, its inherent purposes, growth, and subsequent derailment, as well as the resources remaining within that tradition for the rebuilding of our constitutional order and a decent common life.

This book presents a radical, but compelling, argument that liberal democracies must be able accommodate violent protest. We often think of violent protest as being alien to liberal democracy, an extraordinary occurrence within our peaceful societies. Yet this is simply untrue. Violent protest is a frequent and normal part of democratic life. The real question is: should it be? Can rebellion or riot against government ever be morally justifiable in our society? By framing state demands for obedience as "legitimacy claims," or moral arguments, states who make illogical and unjust laws make weaker arguments for obedience. This in turn gives citizens stronger moral reasons to disobey. Violence can act as moral dialogue – with expressive and instrumental value in denouncing unjust laws – and can have just as important a role in democracy as peaceful protest. This book examines the activism of Hong Kong pro-democracy protesters, Extinction Rebellion, Black Lives Matter, and many other groups internationally, in order to demonstrate that not only can violent protest be acceptable; in times of grave injustice, it is unavoidable. This book will appeal to a broad range of academics, in legal and political theory, sociolegal studies, criminology, history, and philosophy, as well as others with interests in contemporary forms of protest.

Provides the first natural law justification for an originalist interpretation of the American Constitution.

President Franklin Roosevelt's New Deal is widely understood as a turning point in American history. Roosevelt's decisions of 1933 reset the balance of power away from Congress and the states toward a strong executive branch. They shifted the federal government away from the Founders' vision of deliberation and moderation toward war and action. Modern-day presidents have declared war on everything from poverty and drugs to crime and terror. Exploring the consequences of these ill-defined (and never-ending) wars, this book calls for a re-examination of this destructive approach to governance.

America is increasingly defined not only by routine disregard for its fundamental laws, but also by the decadent character of its political leaders and citizens—widespread consumerism and self-indulgent behavior, cultural hedonism and anarchy, the coarsening of moral and political discourse, and a reckless interventionism in international relations. In The Historical Mind, various scholars argue that America's problems are rooted in its people's refusal to heed the lessons of historical experience and to adopt "constitutional" checks or self-imposed restraints on their cultural, moral, and political lives. Drawing inspiration from the humanism of Irving Babbitt and Claes G. Ryn, the contributors offer a timely and provocative assessment of the American present and contend that only a humanistic order guided by the wisdom of historical consciousness has genuine promise for facilitating fresh thinking about the renewal of American culture, morality, and politics.