Early Prerogative and Administrative Power: A Response to Paul Craig

Abstract

In opposition to my claims about American law, Paul Craig lobs some critiques from across the pond. Although it will be seen that his conclusions are simply mistaken, his article is a useful occasion to explore three important questions about early prerogative and administrative power.

First, how can one distinguish absolute prerogative power and administrative power in seventeenth- and eighteenth-century England? Second, how did the English resolve the tensions between their inherited types of administrative power and their constitutional principles? Third, how did Americans resolve the tensions between their inherited types of administrative power and their constitutional principles?

Overall, it will be seen that, in both England and America, many constitutional principles developed in response to the danger of extralegal power, as exemplified by the absolute prerogative. Although the English did not directly apply such constitutional principles to their inherited and mostly localized administrative power, Americans pursued their constitutional principles more systematically in the U.S. Constitution.

Keywords: Administrative Law, Administrative Power, Paul Craig, English Constitution, Constitutional Law, U.S. Constitution, History of Administrative Law, Vermeule