About

Philip Hamburger is the Maurice & Hilda Friedman Professor of Law at Columbia Law School. He is a leading scholar of constitutional law and its history, with a focus on constitutional law, legal history, and First Amendment issues. Hamburger has significantly transformed contemporary understandings of free speech, religious liberty, judicial duty, and the administrative state through his extensive research and publications. His notable works include 'Separation of Church and State,' where he dismantles the myth that the First Amendment mandates the separation of church and state, revealing its roots in nativist and theological prejudices. In 'Law and Judicial Duty,' he explores the early development of judicial review, challenging the conventional narrative that it was established solely by Marbury v. Madison, and emphasizes that judicial decisions to declare government acts unconstitutional have a deeper historical basis rooted in judges' duties. Hamburger's scholarship has influenced Supreme Court decisions, notably in 2024, when the Court repudiated Chevron deference, reaffirming judicial independence. Hamburger has also contributed to debates on administrative law, arguing that administrative power circumvents constitutional processes and poses a threat to civil liberties. He founded the New Civil Liberties Alliance to defend constitutional freedoms against administrative misconduct and has been recognized with numerous awards, including the Hayek Book Prize, the Bradley Prize, and the Barry Prize for Distinguished Academic Achievement. He is a member of the American Academy of Sciences and Letters and the American Academy of Arts and Sciences, and has held academic positions at the University of Chicago before joining Columbia Law School, where he founded the Galileo Center to promote free speech and academic freedom.

Research topics

• Business
• Art history
• Physics
• Economics
• Keynesian economics
• Art

Selected publications

• Campbell's Constitution

  SSRN Electronic Journal · 2026-01-01

  preprintOpen access1st authorCorresponding
  PublisherDOI

• Removal: A Response to Professor Nelson

  eYLS (Yale Law School) · 2025-11-01

  articleOpen access1st authorCorresponding

  In an essay published earlier this fall, Professor Caleb Nelson argues that, as a matter of originalism, the President does not have a constitutional power to remove executive officers. Professor Nelson is a renowned scholar, whose arguments could well influence the Supreme Court in two upcoming removal cases: Trump v. Slaughter and Trump v. Cook. It’s therefore important to evaluate whether his historical claim about removal is correct.

  PublisherOA PDF

• Courting Censorship

  SSRN Electronic Journal · 2023-01-01

  articleOpen access1st authorCorresponding
  PublisherDOI

• A Scholarly Error and a Larger Truth

  eYLS (Yale Law School) · 2022-01-01

  articleOpen access1st authorCorresponding

  Can Congress delegate its legislative power? The question has stimulated much recent scholarship, including Professor Nicholas Parrillo’s detailed study of the 1798 federal tax act. According to his article, the statute delegated binding rulemaking power. My recent SSRN draft Nondelegation Blues questions Parrillo’s conclusion. But now in this blog, he suggests that my article misreads his argument.

  PublisherOA PDF

• Purchasing Submission: Conditions, Power, and Freedom

  2021 · 3 citations

  1st authorCorresponding
  • Business
  • Economics
  • Physics

  From a leading constitutional scholar, an important study of a powerful mode of government control: the offer of money and other privileges to secure submission to unconstitutional power. The federal government increasingly regulates by using money and other benefits to induce private parties and states to submit to its conditions. It thereby enjoys a formidable power, which sidesteps a wide range of constitutional and political limits. Conditions are conventionally understood as a somewhat technical problem of "unconstitutional conditions"-those that threaten constitutional rights-but at stake is something much broader and more interesting. With a growing ability to offer vast sums of money and invaluable privileges such as licenses and reduced sentences, the federal government increasingly regulates by placing conditions on its generosity. In this way, it departs not only from the Constitution's rights but also from its avenues of binding power, thereby securing submission to conditions that regulate, that defeat state laws, that commandeer and reconfigure state governments, that extort, and even that turn private and state institutions into regulatory agents. The problem is expansive, including almost the full range of governance. Conditions need to be recognized as a new mode of power-an irregular pathway-by which government induces Americans to submit to a wide range of unconstitutional arrangements. Purchasing Submission is the first book to recognize this problem. It explores the danger in depth and suggests how it can be redressed with familiar and practicable legal tools

  Publisher

• Nondelegation Blues

  SSRN Electronic Journal · 2021

  1st authorCorresponding
  • Art
  • Art history
  PublisherDOI

• Purchasing Submission

  Harvard University Press eBooks · 2021 · 1 citations

  1st authorCorresponding
  • Business

  Government’s use of largess to secure consent to conditions all too often serves as an illicit pathway of power. This mode of control is part of the contemporary reality of American governance, and it therefore needs to be recognized alongside more familiar sorts of power, such as rule through law and administrative power.

  PublisherDOI

• Ambiguity about Ambiguity

  eYLS (Yale Law School) · 2020-01-01

  articleOpen access1st authorCorresponding

  Petitions for certiorari from the Supreme Court typically raise legal questions that are all too familiar, as cert ordinarily is available only to resolve circuit splits. Now and then, however, a case is “cert-worthy” precisely because it turns on something novel—even astonishing. Such is Monex v. Commodity Futures Trading Commission, in which the CFTC has been relying on ambiguity about the type of ambiguity that justifies its enforcement actions.

  PublisherOA PDF

• Delegating or Divesting

  eYLS (Yale Law School) · 2020-02-24

  articleOpen access1st authorCorresponding

  A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.\nA case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth century authors, the article makes errors of omission and commission – leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.\nThis Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.\nFirst, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside – not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.\nSecond, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power – Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought – as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.\nA narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.

  PublisherOA PDF

• Showcase Panel I: What Is Regulation For?

  Lincoln (University of Nebraska) · 2019-01-01

  articleOpen access

  2018 National Lawyers Convention Transcripts\n“The administrative state, with roots over a century old, was founded on the premise that Congress lacked the expertise to deal with the many complex issues facing government in a fast-changing country, and that it was unhelpfully mired in and influenced by politics, leading to bad outcomes when it did act. The alternative was to establish administrative agencies, each with assigned areas of responsibility, housing learned experts qualified to make policy decisions, deliberately insulated from political accountability. The Administrative Procedure Act (APA), passed in 1946, both governs the manner in which agencies may adopt and enforce regulations, and provides for judicial review of agency action. Supporters of the administrative state point to the successes of agency actions leading to a cleaner environment, more sensible use of finite resources, healthier foods, safety on the roads and rails, and many other areas of improved quality of life. But even looking past structural separation of powers issues written into the bones of the administrative state, critics assert that in the ensuing 70 years the APA has become an ineffective limitation on agency power, as agencies bypassed its requirements by issuing sub-regulatory guidance, letters, FAQs, and more. Compounding the problem, the critics continue, the courts have adopted a policy of deference to agency actions that grant agencies even more latitude. Is it time to revisit the APA? If so, how should it be updated?”

  PublisherOA PDF

Frequent coauthors

• Niko Pfund

  New York University Press

  25 shared

• Kathy Abrams

  University of Alabama

  25 shared

• James Simeri

  University of Alabama

  25 shared

• R G Burns

  University of Alabama

  25 shared

• Louis Decaro

  University of Iowa

  25 shared

• Mary Becker

  Northwestern University

  25 shared

• Wythe Holt

  University of Colorado System

  25 shared

• Rayman Solomon

  University of Alabama

  25 shared

Education

• Ph.D., Constitutional Law and its History

  Harvard University

  2002

• M.A., Constitutional Law and its History

  Harvard University

  2008

• B.A.

  University of Chicago

Awards & honors

• Hayek Book Prize
• Bradley Prize
• Barry Prize for Distinguished Academic Achievement
• Member of the American Academy of Sciences and Letters
• Member of the American Academy of Arts and Sciences