About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

107 Harv. L. Rev. 1231 (1993-1994)
Rise and Rise of the Administrative State, The

handle is hein.journals/hlr107 and id is 1251 raw text is: THE RISE AND RISE OF THE ADMINISTRATIVE STATE Gary Lawson* The post-New Deal administrative state is unconstitutional,' and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.2 The original New Dealers were aware, at least to some degree, that their vision of the national gov- ernment's proper role and structure could not be squared with the written Constitution:3 The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers.4 Faced with a choice between the administrative state and the Constitution, the architects of our modern government chose the administrative state, and their choice has stuck. There is a perception among some observers, however, that this post-New Deal consensus has recently come under serious legal attack, * Associate Professor, Northwestern University School of Law. B.A. ig8o, Claremont Men's College; J.D. 1983, Yale Law School. I am grateful to Robert W. Bennett, Steven G. Calabresi, Cynthia R. Farina, Patricia B. Granger, Daniel Polsby, Martin H. Redish, Jennifer Roback, Marshall Shapo, and the participants at colloquia at Cornell Law School and Northwestern University School of Law for their insightful comments and suggestions. I I use the word unconstitutional to mean at variance with the Constitution's original public meaning. That is not the only way in which the word is used in contemporary legal discourse. On the contrary, it is commonly used to mean everything from at variance with the private intentions of the Constitution's drafters to at variance with decisions of the United States Supreme Court to at variance with the current platform of the speaker's favorite political party. These other usages are wholly unobjectionable as long as they are clearly identified and used without equivocation. The usage I employ, however, is the only usage that fully ties the words constitutional and unconstitutional to the actual meaning of the written Constitution. A defense of this claim would require an extended essay on the philosophy of language, but I can offer some preliminary observations: consider a recipe that calls for a dash of salt. If one were reading the recipe as a poem or an aspirational tract, one might seek that meaning of dash that is aesthetically or morally most pleasing. But if one is reading it as a recipe, one wants to know what dash meant to an informed public at the time the recipe was written (assuming that the recipe was written for public consumption rather than for the private use of the author). Of course, once the recipe is understood, one might conclude that it is a bad recipe, either because it is ambiguous or, more fundamentally, because the dish that it yields simply isn't very appealing. But deciding whether to try to follow the recipe and determining what the recipe prescribes are conceptually distinct enterprises. If the Constitution is best viewed as a recipe - and it certainly looks much more like a recipe than a poem or an aspirational tract - application of the methodology of original public meaning is the appropriate way to determine its meaning. 2 Cf. Cass R. Sunstein, Constitutionalism After the New Deal, ioi HARV. L. REV. 421, 447- 48 (1987) (noting that the New Deal altered the constitutional system in ways so fundamental as to suggest that something akin to a constitutional amendment had taken place). 3 See I BRUCE ACKERMAN, WE THE PEOPLE 44 (99I); Sunstein, supra note 2, at 430. 4 See JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS passim (1938). 1231

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most