Congress and the Problem of Legislative Discretion, 1790-1870
302 Pages Posted: 26 Mar 2019 Last revised: 4 Feb 2020
Date Written: November 17, 2018
Histories of the nineteenth-century United States often describe a stark divide between law and politics, with law as the agent of the propertied few and politics as the weapon of the masses. As representatives of America’s growing electorate fought to reapportion wealth, these accounts go, lawyers and judges waged a counteroffensive through the courts, using the rule of law to strike down statutes and stave off redistributive change. This dissertation challenges that narrative by examining the legislative logic of Congress during the first century of its existence: a logic, it argues, that increasingly relied on notions that we typically associate with private law, such as precedent, principle, and doctrines of vested rights. Members of Congress turned to these concepts not for the reasons that modern-day political scientists attribute to legislative actors, such as electoral considerations and political pressure (or at least, not only for such reasons), but rather out of a deeply-rooted anxiety about the exercise of their own power and an uncertainty as to what, in America’s decades-old experiment in representative democracy made legislation legitimate. Focusing on two case studies – one examining Congress’s response to the Great New York Fire of 1835 and the other investigating the legislative theory of the radical Republican senator Charles Sumner – this dissertation uses techniques and sources typically identified with the law side of the law/politics divide to make a novel claim: that Congress’s increasing reliance on the ideas and practices of ‘private’ law led its members gradually to limit their own discretion, constricting their ability to legislate for the public good in the process.
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