Philip Hamburger

Philip Hamburger

  • Maurice & Hilda Friedman Professor of Law
Education

J.D., Yale Law School, 1982
B.A., Princeton University, 1979

Areas of Specialty

Constitutional Law
First Amendment
Administrative Power
Legal History

One of the preeminent scholars writing today on constitutional law and its history, Philip Hamburger teaches and writes on wide-ranging topics, including religious liberty, freedom of speech and the press, academic censorship, the regulation of science, judicial duty, administrative power, and the development of liberal thought. In two recent books—Is Administrative Law Unlawful? and The Administrative Threat—he argues that the administrative state is unconstitutional and a threat to civil liberties. In his latest book, Liberal Suppression: Section 501(c)(3) and the Taxation of Speech, he shows that the revenue code’s restrictions on the political speech of churches were initially proposed by the Imperial Wizard of the Ku Klux Klan and shows that these speech limitations are unconstitutional. 

In 2014, Hamburger established the Law School’s Center for Law and Liberty, which studies threats to and legal protections for freedom. He is the founder and president of the New Civil Liberties Alliance, an independent, nonprofit civil rights organization based in Washington, D.C., that uses litigation and other pro-bono advocacy to defend constitutional freedoms from the administrative state. 

Hamburger joined the Law School faculty in 2006 from the University of Chicago Law School. He has won several prestigious prizes during his tenure at Columbia Law, including the Hayek Book Prize for Is Administrative Law Unlawful? and the Bradley Prize, which honors persons who defend American values. He has been elected a member of the American Academy of Arts and Sciences.

Publications

Books

  • Liberal Suppression: Section 501(c)(3) and the Taxation of Speech (Chicago University Press 2018)
  • Purchasing Submission: Conditions, Power, and Freedom (Harvard University Press 2021)
  • The Administrative Threat (Encounter Books 2017)
  • Is Administrative Law Unlawful? (Chicago University Press 2014)
  • Law and Judicial Duty (Harvard University Press 2008)
  • Separation of Church and State (Harvard University Press 2002)

Articles on Administrative Power

  • “Administrative Discrimination,” American Mind (Sept. 11, 2020)
  • “Ambiguity about Ambiguity,” Yale Journal on Regulation, Notice and Comment (March 11, 2020)
  • “Delegation or Divesting?” 115 Northwestern University Law Review Online 88 (2020)
  • “The Administrative Threat to Civil Liberties, Cato Supreme Court Review 15 (2018)
  • “The Administrative Evasion of Procedural Rights,” 11 NYU Journal of Law and Liberty 915 (2018)
  • Chevron on Stilts: A Response to Jonathan Siegel,” 72 Vanderbilt Law Review En Banc 77 (2018)
  • “How Government Agencies Usurp Our Rights” City Journal (Winter 2017)
  • “Early Prerogative and Administrative Power: A Response to Paul Craig,” 81 Missouri Law Review 939 (2016)
  • Chevron Bias,” 84 George Washington Law Review 1187 (2016)
  • “Vermeule Unbound,” Texas Law Review: See Also (2016)

Articles on Religious Liberty

  • “Prejudice and the Blaine Amendments,” First Things (June 20, 2017)
  • “Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal,” 90 Notre Dame Law Review 1919 (2015)
  • “Religious Liberty in Philadelphia,” 54 Emory Law Journal 1603 (2005)
  • “Against Separation,” 155 Public Interest 177 (2004)
  • “Equality and Diversity: The Eighteenth-Century Debate about Equal Protection and Equal Civil Rights,” Supreme Court Review 295 (1992)
  • “A Constitutional Right of Religious Exemption:  An Historical Perspective,” 60 George Washington Law Review 915 (1992)

Articles on Freedom of Speech

  • “The First Amendment Doesn’t Protect Big Tech’s Censorship,” Wall Street Journal (July 31, 2021) (with Clare Morrell)
  • “The Constitution Can Crack Section 230,” Wall Street Journal (Jan. 29, 2021)
  • “Education Is Speech: Why New York’s Attempts to Control Private Schools Are Unconstitutional,” The Federalist (Aug. 22, 2019)
  • “Natural Rights, Natural Law, and American Constitutions,” 102 Yale Law Journal 907 (1993)
  • “The Development of the Law of Seditious Libel and the Control of the Press,” 37 Stanford Law Review 661 (1985)

Articles on Censorship by Institutional Review Boards

  • “HHS’s Contribution to Black Death Rates,” Liberty Law Blog (Jan. 8, 2015)
  • “IRB Licensing,” in Who’s Afraid of Academic Freedom (New York: Columbia University Press, 2014)
  • “The Censorship You’ve Never Heard Of,” Commentary (July 2013)
  • “Getting Permission,” 101 Northwestern Law Review 405 (2007)
  • “The New Censorship: Institutional Review Boards,” 2004 Supreme Court Review 271 (2005)

Articles on the Nature of American Constitutional Law and Rights

  • “Inversion of Rights and Power,” 63 Buffalo Law Review 731 (2015)
  • “The Permanent Constitution,” Sesquicentennial Essays of the Faculty of Columbia Law School, 123-26 (New York: Columbia Law School, 2008)
  • “More is Less,” 90 Virginia Law Review 835 (2004)
  • “Trivial Rights,” 70 Notre Dame Law Review 1 (1994)
  • “The Constitution’s Accommodation of Social Change,” 88 Michigan Law Review 239 (1989)

Articles on Judicial Duty

  • “Judicial Office and the Liberty Protected by Law,” Liberty Law Forum (Dec. 12, 2011)
  • “Judicial Office,” 6 Journal of Law, Philosophy and Culture 53 (2011)
  • “A Tale of Two Paradigms: Judicial Review and Judicial Duty,” 78 George Washington Law Review 1162 (2010)
  • “Revolution and Judicial Review: Chief Justice Holt’s Opinion in City of London v. Wood,” 94 Columbia Law Review 2091 (1994)

Articles on Other Constitutional Issues 

  • “The Second Commerce Clause,” SSRN (2014)
  • “Unconstitutional Conditions: The Irrelevance of Consent,” 98 Virginia Law Review 479 (2012)
  • “Privileges or Immunities,” 105 Northwestern Law Review 61 (2011)
  • “Beyond Protection,” 109 Columbia Law Review 1823 (2009)

Articles on Liberalism

  • “Illiberal Liberalism: Liberal Theology, Anti-Catholicism, & Church Property,” 12 Journal of Contemporary Legal Issues, 693-725 (2002)
  • “Liberality,” 78 Texas Law Review 1215 (2000) 

Article on Conflicts of Interest

  • Commentary on the AAUP Statement on Corporate Funding of Academic Research, Free to Teach, Free to Learn, 51 (ACTA, 2013)

Articles on Contract and Property Law

  • “The Development of the Nineteenth-Century Consensus Theory of Contract,” 7 Law and History Review 241 (1989)
  • “The Conveyancing Purposes of the Statute of Frauds,” 27 American Journal of Legal History 354 (1983)

Conference Papers and Occasional Pieces

  • “Administrative Discrimination,” Yale Journal on Regulation, Notice and Comment (Sept. 13, 2020)
  • “Delegation or Divesting?” Yale Journal on Regulation, Notice and Comment (March 5, 2020) 
  • “Chevron Bias, Illustrated by Statistics,” Law & Liberty Blog (April 12, 2018)
  • “The Raid on AIG’s Equity Was Illegal,” Wall Street Journal (March 9, 2018) “PTAB, Patents, and the Constitution,” Yale Journal on Regulation, Notice & Comment (Nov. 26, 2017) 
  • “From Kelo to Starr: Not Merely an Unlawful Taking but an Illegal Exaction,” Law Liberty Blog (Oct. 25, 2017)
  • “Gorsuch and the Administrative State,” New York Times (March 20, 2017)
  • “The Unconstitutionality of the Exxon Subpoena,” Liberty Law Blog (Dec. 3, 2015)
  • “Magna Carta, Due Process, and Administrative Power,” American Enterprise Institute (2015)
  • “Chevron, Independent Judgment, and Systematic Bias,” Liberty Law Blog (Aug. 11, 2014)
  • “Is Administrative Law Unlawful?” a series of blog posts on the Liberty Law Blog (Aug.-Sept. 2014)
  • “Is Administrative Law Unlawful?” a series of blog posts on the Volokh Conspiracy (July 14-21, 2014)
  • “Is Administrative Law Unlawful? A Word from the Author” Power Line (July 2, 2014)
  • “Underlying Hobby Lobby, National Review On-Line (March 11, 2014)
  • “Afterword: Context, Justice, and Law,” 6 Journal of Law, Philosophy and Culture 195 (2011)
  • Waivers—Part I:  “Are Health-Care Waivers Unconstitutional?” National Review On-Line (Feb. 8, 2011)
  • Waivers—Part II: “Can Health-Care Waiver be Justified?” National Review On-Line (Feb. 18, 2011)
  • Waivers—Part III: “Health-Care Waivers and the Courts,” National Review On-Line (March 14, 2011)
  • “Two-Dimensional Doctrine and Three-Dimensional Law: A Response to Professor Weinstein,” 101 Northwestern Law Review Colloquium, 563 (2007)
  • “Ingenious Arguments or a Serious Constitutional Problem? A Comment on 
  • Professor Epstein’s Paper,” 102 Northwestern Law Review Colloquium, 102 (2007)
  • “Law and Judicial Duty,” 72 George Washington Law Review 1 (2003)
  • “Separation and Interpretation,” 18 Journal of Law & Politics 7 (2002) (replacing erroneously printed version published under same citation)
  • “Natural Rights and Positive Law: A Comment on Professor McAffee’s Paper,” 16 Southern Illinois University Law Journal 307 (1992)
  • “Marginalia,” 61 Yale University Library Gazette 66-67 (1986)

Honors and Awards

Bradley Prize

2017

Hayek Book Prize

2016

Henry Paolucci/Walter Bagehot Book Award

2009

Sutherland Prize

1994

Prompter Honoris Respectum

1994

Sutherland Prize

1989

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