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

Administrative constitutionalism can be defined broadly or narrowly. Defined most broadly, it refers to agencies’ role in constructing constitutional norms such as adequate due process, the bounds of free speech, or the scope of executive power, whether or not agencies consider themselves to be doing so. More narrowly, it includes only instances in which agencies self‐consciously consider the meaning of the Constitution in designing policies and issuing decisions.

Broadly defined, it includes all instances in which agencies implement the Constitution, even if they do so merely as a precursor to determination of the constitutional question by Congress or the courts. More narrowly defined, administrative constitutionalism encompasses only those instances in which an agency has the final say or interprets the Constitution in a way that sets it against the courts or Congress.

However defined, this Article argues that historians’ case studies of administrative constitutionalism suggest that administrative agencies have been the primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of administrative constitutionalism has changed significantly over time as the balance of opportunities and constraints has shifted. That said, the Article also contends that over the twentieth century, and especially since the New Deal, courts have cast an increasingly long shadow over the administered Constitution. In part, this is because of the well‐known expansion of judicial review during this period. 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.