From the History to the Theory of Administrative Constitutionalism

Abstract

Legal scholars and historians have shown growing interest in how agencies interpret and implement the Constitution, what is called “administrative constitutionalism.” The points of contact between the history and theory of administrative constitutionalism are sufficiently extensive to merit systematic analysis. This chapter focuses on what history can offer the theory of administrative constitutionalism. It argues that historical accounts of administrative constitutionalism invite a more robust normative defense of the practice than theorists have thus far provided. There is much to the transparent, participatory versions of administrative constitutionalism that its defenders have primarily focused on thus far. This chapter is a preliminary effort to develop historically informed theoretical arguments that administrative constitutionalism can be virtuous even when it lacks those attributes. Also, while critics have reason to worry that administrative constitutionalism can be insufficiently deferential to courts and Congress, I contend that administrative constitutionalism can even be defensible if it varies from court doctrine and is contrary to congressional command.

Keywords: Constitutional law and theory, administrative law, interpretation, legal history, transparency, regulation, rulemaking, deliberation, participation, notice and comment, expertise, constitutional avoidance