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Journal ArticleDOI

“administrative constitutionalism”: considering the role of agency decision-making in american constitutional development

01 Jan 2021-Social Philosophy & Policy (Cambridge University Press)-Vol. 38, Iss: 1, pp 109-129
TL;DR: The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism as mentioned in this paper, which is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norm.
Abstract: The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have been extremely important participants in American constitutional development. Section I of this essay identifies three different versions of administrative constitutionalism—(1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism—and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism. Section II of this essay discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors. Section III of this essay disputes the notion that agency constitutional decision-making is “democratic” and that agencies are naturally inclined to serve progressive goals. Finally, Section IV of this essay notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict, based on that literature, that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations.
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Book
01 Jan 1971
TL;DR: Niskanen as mentioned in this paper developed a formal theory of supply by bureaus and developed a simple theory of the market for public services financed through a representative government; the final section suggests a set of changes to improve the performance of our bureaucratic and political institutions, based both on theory and professional experience.
Abstract: This is the first book to develop a formal theory of supply by bureaus. Niskanen develops an original and comprehensive theory of the behavior of bureaus with the institutions of representative government. He challenges the traditional view that monopoly bureaus are the best way to organize the public sector, and he suggests ways to use competitive bureaus and private firms to perform operations such as delivering mail, fighting wars, or running schools more efficiently than the present government agencies. The theory concludes that most bureaus are too large, grow too fast, use too much capital, and exploit their sponsor. His theory explains the relation of the output and budget of a bureau to demand and cost decisions. It compares bureaus with other forms of organization facing like conditions and delineates the production and investment behavior of a bureau, the behavior of nonprofit firms with no sponsor, the behavior of mixed bureaus with financing from a sponsor and from the sale of services, the effects of competition between a bureau and a competitive industry. The book also develops a simple theory of the market for public services financed through a representative government; the final section suggests a set of changes to improve the performance of our bureaucratic and political institutions, based both on theory and Niskanen's professional experience. It is essential reading for professionals and students in the social sciences and could prove instrumental in reforming some of our government institutions.

4,304 citations

Book
02 May 2017
TL;DR: The Color of Law examines the local, state and federal housing policies that mandated segregation as mentioned in this paper and concludes that the Federal Housing Administration, which was established in 1934, furthered the segregation efforts by refusing to insure mortgages in and near African-American neighborhoods, a policy known as "redlining."
Abstract: The Color of Law examines the local, state and federal housing policies that mandated segregation. He notes that the Federal Housing Administration, which was established in 1934, furthered the segregation efforts by refusing to insure mortgages in and near African-American neighborhoods — a policy known as "redlining." At the same time, the FHA was subsidizing builders who were mass-producing entire subdivisions for whites — with the requirement that none of the homes be sold to AfricanAmericans. (Source)

419 citations

Book
01 Jun 1974
TL;DR: The origins of the political system Key described can be traced back to the movements for suffrage restriction in each of the eleven ex-Confederate states from 1880 to 1910 as discussed by the authors.
Abstract: This book is an attempt to explain the origins of the political system Key described. A complex topic with wide ramifications, it has received less attention than it deserves. As Sheldon Hackney remarked in a recent review article, "One of the unsolved, even unposed riddles of twentieth-century southern politics is why a two-party system did not develop after disfranchisement." The solution to this riddle, I suggest, lies not in the period after disfranchisement and the establishment of the direct, statewide white primary, but in a study of the movements which sought to bring about those electoral changes. If so, then questions about the genesis of the electoral changes are important to political scientists and historians investigating not only the nineteenth century but also the twentieth. I have attempted in this book to cover in detail the movements for suffrage restriction in each of the eleven ex-Confederate states. I have also treated intensively the changes in Northern opinion toward suffrage and the South, the identity and objectives of the restrictionists and their opponents, and the purposes and efficacy of the particular alterations in the political rules. My interpretation of the change from the post-Reconstruction Southern political system to the twentieth-century system rests on a thorough analysis of election statistics using a technique heretofore rarely used by historians—Leo Goodman's ecological regression method. By employing Goodman's method, I have been able to obtain estimates of the percentages of blacks and whites who voted for each candidate, as well as the proportion who did not vote, in every presidential and gubernatorial election and in many primaries and referenda in the South from 1880 to 1910. For most of these elections, these are the first estimates based on a relatively sophisticated statistical procedure that have ever been made. These statistics allow the most firmly based answers that we have so far to such questions as: to what extent did blacks and whites, respectively, favor the Populists? What percentage of voters from each party favored disfranchisement in the various referenda? To what extent did the massive declines in votes turnout represent only the disfranchisement of blacks? To what extent did whites also stop voting?

419 citations

Book
Larry Kramer1
01 Jan 2004
TL;DR: For example, the authors argues that the power under the Constitution will always be in the people: The Making of the Constitution 4. Courts, as well as other Departments, are Bound by that Instrument: Accepting Judicial Review 5. What Every True Republican Ought to Depend On: Rejecting Judicial Supremacy 6. Notwithstanding This Abstract View: The Changing Context of Constitutional Law 7. To Preserve the Constitution, as a Perpetual Bond of Union: The Lessons of Experience 8. A Layman's Document, Not a Lawyer's Contract: The Continuing
Abstract: Introduction - Popular Constitutionalism 1. In Substance, and in Principle, the Same as It Was Heretofore: The Customary Constitution 2. A Rule Obligatory Upon Every Department: The Origins of Judicial Review 3. The Power under the Constitution Will Always Be in the People: The Making of the Constitution 4. Courts, as Well as Other Departments, Are Bound by That Instrument: Accepting Judicial Review 5. What Every True Republican Ought to Depend On: Rejecting Judicial Supremacy 6. Notwithstanding This Abstract View: The Changing Context of Constitutional Law 7. To Preserve the Constitution, as a Perpetual Bond of Union: The Lessons of Experience 8. A Layman's Document, Not a Lawyer's Contract: The Continuing Struggle for Popular Constitutionalism 9. As An American: Popular Constitutionalism, Circa 2004 Epilogue - Judicial Review Without Judicial Supremacy

343 citations

Book ChapterDOI
TL;DR: Ackerman as mentioned in this paper argued that the American system should not create an independently elected presidency to check and balance a popularly elected congress, and instead, it should authorize a prime minister and her cabinet to remain in power as long as they can retain the support of a democratically elected chamber of deputies.
Abstract: This essay in comparative constitutional theory considers whether an American-style separation of powers should serve as a model for other countries. Professor Ackerman argues against the export of the American system in favor of an approach based on the constitutional practice of Germany, Italy, Japan, India, Canada, South Africa, and many other nations. According to this model of “constrained parliamentarianism,” the constitution should not create an independently elected presidency to check and balance a popularly elected congress. Instead, it should authorize a prime minister and her cabinet to remain in power as long as they can retain the support of a democratically elected chamber of deputies. Constrained parliamentarianism tries to check the power of the cabinet and the chamber, however, by granting independence to a variety of other checking institutions, including a constitutional court. Professor Ackerman argues that this model offers a more promising path to constitutional development than the American approach. He shows how it can generate a variety of institutional strategies that better serve the three great principles that motivate the modern doctrine of separation of powers ⎯ democracy, professionalism, and the protection of fundamental rights.

270 citations