Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present

Abstract

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers' roles in agency administration. The result is that administrative constitutionalism may still be the most frequent form of constitutional governance, but it has grown, paradoxically, more suspect even as it has also become far more dependent on and deferential to judicial interpretations.

This article also contends that the history of administrative constitutionalism poses a problem for critics of the modern administrative state who seek to restore administrative law to its 19th-century foundations. These critics hold out constitutional law as uniquely important; it is what powers their arguments that the United States should turn back the clock. And they prefer 19th-century agencies because they depict them as exercising little consequential legal power. But this history suggests that those agencies had the first and often final word on the Constitution’s meaning. These critics also assume that reinstating the 19th-century constitutional order would empower courts to more closely scrutinize agency action. The history presented here instead suggests that returning to 19th-century administrative law would all but eliminate judicial review of the constitutionality of agency actions. Indeed, the burgeoning history of administrative constitutionalism suggests that anyone who wants to ensure that courts review the constitutionality of agency action has to appeal to theories that are rooted in constitutional change not origins, and in 20th- not 19th-century administrative law and judicial practice.

Keywords: administrative constitutionalism, administrative law, legal history, judicial review, constitutional law