In Anchoring Truths' latest book review, Garrett Snedeker provides commentary on Philip Hamburger's Purchasing Submission.

"The book is a successful initiation for all lawyers and law students into how the extensive attachment of conditions to statutory and regulatory provisions impairs our legal order. However, while the book is long on identifying the threats of rule by condition, in escalating perniciousness, to the Constitution’s structural protections of liberty, unfortunately, it is short on practical paths forward."

"As opposed to a contract between two private parties, rule by condition implicates, or even controls, third-parties. Third-parties cannot freely give or receive consent. Hamburger nicely uses the example of a condition on donors that induces charities to restrict their speech via conditions in the federal tax code because donors are the operative party taking advantage of a condition, a tax-deduction, imposing an otherwise unconstitutional restriction on speech on charities. When third-parties are the true object of conditions, as in the case of restrictions on speech via the tax code, consent becomes too attenuated, thus preventing any harmonization between rule by condition and constitutional self-government."

"Interest groups that form around conditions contrary to the broader public interest in preserving constitutional liberties are smaller and more focused at preserving conditions in their self-interest. Preserving broader constitutional liberties, an interest of the wider public, suffers from the free-rider problem. Thus the broader public has little incentive to organize. The group that forms around preserving a condition offered as either a carrot or stick from government, as opposed to a purported neutral statute or regulation, receives the implicit backing of the government to become its client, surrogate, and agent to preserve the new condition-based regime. Carl Schmitt’s famous observation that 'sovereign is he who decides on the exception' may be recast as 'sovereign is he who decides on the condition.'"

"Imagine being deprived of property not by eminent domain litigation, nor losing an administrative process, but rather the mere threat of regulation. At core, the threat of regulatory extortion masks the underlying problem of a consent that results in the deprivation of constitutional rights in exchange for an attenuated benefit. Hamburger calls this state of affairs 'thugocracy,' but a better phrase would be simply “living in fear” from arbitrary exercises in power. Ordinary Americans then can rightly be said to live in fear of the arbitrariness of a regulatory threat, but without recourse to due process of law."

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