Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law

COMPARATIVE ADMINISTRATIVE LAW, Susan Rose-Ackerman, Peter Lindseth, eds., Edward Elgar Publishing, 2010

U of Chicago, Public Law Working Paper No. 31

12 Pages Posted: 25 Oct 2010 Last revised: 19 Nov 2010

See all articles by Tom Ginsburg

Tom Ginsburg

University of Chicago Law School

Date Written: October 24, 2010

Abstract

This forthcoming book chapter makes three arguments. First, it argues that the conceptual division between administrative and constitutional law is quite porous, and that along many dimensions, administrative law can be considered more constitutional in character than constitutions. Administrative law is more enduring and at least as constraining as are constitutions. Second, it shows that written constitutions do relatively little to legally constrain the administrative state. Rather, their role is to establish the broader structural apparatus of governance and accountability, in which the bureaucracy is the great unspoken. This leaves administrative law as a relatively free-standing field characterized by great flexibility and endurance, features that are usually thought to be more embodied in constitutions. Third, the chapter concludes that the exercise of comparison helps to expose the limits of written constitutions, and to call for greater attention to comparative administrative law as a feature of the unwritten constitution of nation states.

Suggested Citation

Ginsburg, Tom, Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law (October 24, 2010). COMPARATIVE ADMINISTRATIVE LAW, Susan Rose-Ackerman, Peter Lindseth, eds., Edward Elgar Publishing, 2010, U of Chicago, Public Law Working Paper No. 31, Available at SSRN: https://ssrn.com/abstract=1697222 or http://dx.doi.org/10.2139/ssrn.1697222

Tom Ginsburg (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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