Richard Epstein's latest column is up at the Hoover Institution's Web site. It says the modern administrative state and the rule of law are "ultimately incompatible." On the rule of law:
No matter what the substantive issue, the rule of law imposes a set of key procedural and substantive guarantees that all political authorities must accept. It requires that there be clear notice of the outer bounds of legal conduct so that people can confidently organize their affairs without crossing the line into forbidden territory.
In order to achieve that objective, a legal rule had to be internally consistent, prospective in application, and simple in form. Its application to a particular case, moreover, had to be before an impartial tribunal that gave the accused person notice of the charges against him, a chance to present his own case, and the right to cross-examine witnesses who testified against him. Those safeguards applied to both criminal and civil proceedings. It is easy to take these provisions for granted—until they are flouted by the government, which may have its own agenda.
