Beware of Bureaucrats Bearing Gifts.

• Author: Leef, George

Thomas Jefferson wrote that, in order to prevent government from becoming tyrannical, it was necessary to "tie it down with the chains of the Constitution." But over the centuries, those who want an expansive government have loosened the Framers' chains in many ways. In his new book Purchasing Submission, Columbia University law professor Philip Hamburger explores one of those ways: the federal government's using money and power to augment its control over Americans. He makes a persuasive case that those tactics have enabled it to undermine federalism and freedom.

Hamburger has written previously about the unconstitutional spread of federal power. His 2014 book Is Administrative Law Unlawful? argues that the vast administrative state--the "fourth branch" of government--is inconsistent with the Framers' concept of good governance. This harkens back to the kinds of star chamber proceedings in England that the drafters of our Constitution wanted to prevent. The people were only supposed to obey laws enacted by their elected representatives and face punishments by properly constituted courts of law, but "administrative law" violates both of those precepts.

In Purchasing Submission, Hamburger shows that the problem of unconstitutional control goes far beyond the visible administrative state, which at least must comply with statutes and is somewhat subject to judicial oversight. But when the federal government dangles money in front of state or local governments or private entities with conditions that Congress could not legislate directly, that subverts our constitutional order. He calls this a "transactional mode of control" and declares, "It is a strange mode of governance, in which Americans sell their constitutional freedoms--including their self-governance, due process, and speech --for a mess of pottage."

Unimagined power / The Constitution places many restraints on federal power, but the Framers did not consider the possibility that the government might infringe upon people's rights by putting conditions on receipt of its largess. That's likely because the Framers never imagined the federal government having anywhere near the money and authority it now holds. No authority to dole out money or favors was enumerated. Why take precautions against the abuse of a non-existent power?

But as government took on additional authority, it became possible to use that authority in novel ways. Consider, for example, the Federal Communications...