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On the Reading of Old Constitutions

Centralized power is limited by separating powers, enumerating powers, and using offsetting powers.

James Anthony
October 9, 2020

If you join at eleven o’clock a conversation which began at eight you will often not see the real bearing of what is said. Remarks which seem to you very ordinary will produce laughter or irritation and you will not see why—the reason, of course, being that the earlier stages of the conversation have given them a special point.  

—C. S. Lewis, “On the Reading of Old Books” [2]

Agency lawmaking, the deep state, executive lawmaking—such ideas “are not more modern, but more ancient, than those of the Revolutionary fathers” (Calvin Coolidge) [3].

An Ancient Evil, Rebranded: Centralized Power

By the time of the American Revolution, for hundreds of years kings had often defied common law by exercising centralized power, called prerogative power:

Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations.

Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers.

Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts.

—Philip Hamburger, “The History and Danger of Administrative Law” [4]

English absolutism was epitomized by King James I, who ruled from 1603 to 1625 … His prerogative tribunals most famously included the Star Chamber and the High Commission … Such tribunals are often assumed to have been blood- soaked torture chambers, but they were more bureaucratic than bloody. They were efficient prerogative agencies, and they exercised absolute power in ways that have come back to life in America.

—Philip Hamburger, The Administrative Threat, EPUB version, p. 8 [5]

As English business people started building up economic power, they repeatedly pushed back centralized power:

They did this in 1215 in Magna Charta’s provision on the law of the land, in 1354 and 1368 in the statutes on due process, in 1610 in the Commons’ petition to James I, in 1628 in the Petition of Rights, in 1641 in the abolition of the prerogative courts, in 1689 in the Declaration of Rights, and finally in 1763 in the rejection of general warrants. 

—Philip Hamburger, Is Administrative Law Unlawful?, EPUB version, p. 683 [6]

The American colonists built up considerable, more-widespread economic power.

The colonists’ taxes as a percentage of gross domestic product were just 1% to 2% (Edwin Perkins, The Economy of Colonial America, 2nd ed., pp. 190, 205 [7]).

Under that long-lived unprecedentedly-low taxation, the colonists’ purchasing power ended up exceeding that of the English people by a spectacular 68% (Peter Lindert and Jeffrey Williamson, Unequal Gains: American Growth and Inequality since 1700, EPUB version, pp. 107-8 [8]).

The American colonists used their economic power to further push back centralized power. They explained in their grievances.

Many of their grievances described specific practices that later they specifically outlawed.

A few of their grievances described general practices like our current Progressive agency lawmaking, deep state, and executive lawmaking:

the present king of Great Britain … has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance …

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: …

For … declaring themselves invested with power to legislate for us

—USA Declaration of Independence [9]

Soon after, the USA representatives stepped up their game to keep us safe from centralized power. They threw together proven law, theory, and new law, praying that enough of what they created would work. Their design, like a fail-safe engineering design, provides multiple independent layers of protection [10].

The Constitutional Design: Offsetting Powers

The Bill of Rights and Constitution are law. A law consists of a rule plus the associated sanctions.

Unlike in simpler criminal and civil laws, in this sophisticated body of law the rules and sanctions are widely separated from one another, and multiple sanctions can be used to enforce multiple rules. Many can be used to limit centralized power. Here’s one reading of key rules and sanctions:

No person shall … be deprived of life, liberty, or property, without due process of law …

All legislative Powers herein granted shall be vested in a Congress of the United States …

The executive Power shall be vested in a President of the United States of America.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution …

Before [the President shall] enter on the Execution of his Office, he shall take the following Oath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

—USA Constitution [11]

The foundational rule, put in place at the insistence of the small-government Anti-Federalists, is comprehensive: apart from exceptional circumstances handled using constitutional criminal or civil laws and procedures, life, liberty, and property shall be made secure.

The most-robust sanction, drafted mostly by the bigger-government Federalists and ratified by all, is intricate and massively decentralized:

When government people try to shirk their powers:

  • when legislators try to delegate power to agency people
  • or when legislators act as if judges have decisive power to interpret the Constitution
  • or when executives act as if legislators or judges have executive power

or when government people try to grab others’ powers:

  • when government people try to grab the people’s powers
  • or when national-government people try to grab state-government people’s powers
  • or when legislators or judges try to grab executive power

each person these people interact with is required to maintain good individual boundaries:

  • each person must interpret the Constitution himself
  • and each person must respect his boundaries and defend his boundaries [12].

Sovereign Individuals and Delegees

As we’ve seen recently, individuals including partygoers [13], policemen [14], gym owners [15], restaurant owners [16], hair-salon owners [17], ministers [18], sheriffs [19], district attorneys [20], and county executives [21] have constitutional power to control their own actions.

Even acting alone, they can persuade others, or they can face less resistance than they might reasonably anticipate. They prevail often.

They prevail more often when they have more power—when individuals are in offices to which we, the sovereign people, have delegated more power; or when many individuals taking similar actions combine to assert more power.  

Massively-decentralized control like the control required by the Constitution in political life is actually an everyday experience for everyone in economic life.

When we make choices in our own best interest as we shop, these choices combine to control which businesses grow to control more resources for us, and which businesses shrink and hand over their resources to others who will control those resources better for us. Individual shoppers are the supervisory controllers [22] who make our system of voluntary cooperation constantly generate improvements that help us all.

When we turn our attention to governments, maybe it has long remained true that:

all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves

—USA Declaration of Independence [9] 

But it doesn’t have to be this way. It shouldn’t be this way now. Our fathers won that war, and they designed protections to limit government peacefully.

Our task would be simpler if they had modeled for us more clearly how to use these protections [23]. Anyway, here we are.

In everyday economic life, we don’t let others tell us how to spend our money. In everyday political life, we shouldn’t let others tell us how to assert our political power.

These times we’re in—when we see that actually, not every person is more disposed to suffer evils than to right himself, and that actually, resistance is fertile—in these times, constitutional actions by true leaders are wake-up calls for everyone who loves freedom.

Each of us, even the least assertive among us—each national-government officer—is required to ensure, to the extent that he has power to do so, that no person is deprived of life, liberty, or property.

Let each of us do all that is in his power to make each person’s life, liberty, and property secure.

And let each of us not rest until each government officer—local, state, and national—does all that is in his power to make each person’s life, liberty, and property secure.


  1. “America’s Founding Documents: High Resolution Downloads.” National Archives, 22 Mar. 2018, www.archives.gov/founding-docs/downloads. Accessed 9 Oct. 2020.
  2. Lewis, C.S. “On the Reading of Old Books.” God in the Dock: Essays on Theology and Ethics, edited by Walter Hooper, Wm. B. Eerdmans Publishing Co., 1972.
  3. Coolidge, Calvin. “The Inspiration of the Declaration of Independence,” July 5, 1926.
  4. Hamburger, Philip. ”The History and Danger of Administrative Law.” Imprimis, vol. 43, no. 9, Sep. 2014.
  5. Hamburger, Philip. The Administrative Threat. EPUB version, Encounter Books, 2017, p. 8.
  6. Hamburger, Philip. Is Administrative Law Unlawful? EPUB version, University of Chicago Press, 2014, p. 683.
  7. Perkins, Edwin. The Economy of Colonial America. 2nd ed., Columbia University Press, 1988, pp. 190, 205.
  8. Lindert, Peter, and Jeffrey Williamson. Unequal Gains: American Growth and Inequality since EPUB version, Princeton University Press, pp. 107-8.
  9. USA Declaration of Independence, 1776.
  10. Wiley, Ronald J. “Layer of Protection Analysis.” Procedia Engineering, vol. 84. 2014, pp. 12-22.
  11. USA Constitution.
  12. Anthony, James. “Loss Limiting by Oath to Support the Constitution.” rConstitution.us, rconstitution.us/boundaries/#off-lim-art. Accessed 9 Oct. 2020.
  13. Mulraney, Frances. “’Thank You Folks!’: Lake of the Ozarks Mayor Says Viral Videos of Crowded Parties Without Social Distancing or Face Masks Has Doubled Tourism and Attracted More Than 9.1million Visitors to the Area During the Pandemic.” Daily Mail, 6 Aug. 2020, www.dailymail.co.uk/news/article-8601471/Lake-Ozarks-mayor-says-viral-videos-controversial-crowded-parties-doubled-tourism.html. Accessed 9 Oct. 2020.
  14. “Officer Defends the Constitution & Placed on Leave Pending Termination.” Law Officer, 11 May 2020, www.lawofficer.com/officer-defends-the-constitution-placed-on-leave-by-agency/. Accessed 9 Oct. 2020.
  15. “Atilis Gym Owners Expect to Be Arrested Again Wednesday.” Fox 29 Philadelphia, 19 Aug. 2020, www.fox29.com/news/atilis-gym-owners-expect-to-be-arrested-again-wednesday. Accessed 9 Oct. 2020.
  16. Davidson, Joel. “Open Defiance: Anchorage Restaurants Packed Despite Mayor’s Order. Alaska Watchman, 5 Aug. 2020, alaskawatchman.com/2020/08/05/open-defiance-anchorage-restaurants-packed-despite-mayors-order/. Accessed 9 Oct. 2020.
  17. Horowitz, Daniel. “Shelley Luther Is a Civil Rights Hero.” TheBlaze, 6 May 2020, www.theblaze.com/conservative-review/horowitz-shelley-luther-civil-rights-hero. Accessed 9 Oct. 2020.
  18. Bharath, Deepa. “Sun Valley Church Defies Court Order, Holding Indoor Services without Masks or Physical Distancing.” The Orange County Register, 17 Aug. 2020, www.ocregister.com/2020/08/17/sun-valley-church-defies-court-order-holding-indoor-services-without-masks-or-physical-distancing/. Accessed 9 Oct. 2020.
  19. Wilson, Jason. “US Sheriffs Rebel Against State Mask Orders Even as Covid-19 Spreads.” The Guardian, 31 July 2020, www.theguardian.com/us-news/2020/jul/31/us-sheriffs-mask-orders-covid-19-blm. Accessed 9 Oct. 2020.
  20. Sher, Andy. “Four Tennessee District Attorneys Questions Gov. Lee’s COVID-19 Restraints on Businesses.” Chattanooga Times Free Press, 2 May 2020, www.timesfreepress.com/news/local/story/2020/may/02/four-tennessee-district-attorneys-questions-g/522094/. Accessed 9 Oct. 2020.
  21. Horowitz, Daniel. “Ep 705 | Meet the NY County Executive Who Stood UP to Cuomo’s Evil Orders.” Conservative Review with Daniel Horowitz, 20 Aug. 2020, www.iheart.com/podcast/263-the-conservative-co-28419175/episode/ep-705-meet-the-ny-70428716/. Accessed 9 Oct. 2020.
  22. Von Mises, Ludwig. Bureaucracy. Yale University Press, 1944, pp. 20-1.
  23. Watkins, William J., Jr. “The Kentucky and Virginia Resolutions: Guideposts of Limited Government.” The Independent Review, vol. 3, no. 3, Winter 1999, pp. 385-411.

James Anthony is a chemical engineer with a master’s in mechanical engineering, and author of The Constitution Needs a Good Party: Good Government Comes from Good Boundaries, and rConstitution Papers: Offsetting Powers Secure Our Rights.


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