Administration and "The Democracy": administrative law from Jackson to Lincoln, 1829-1861.

• Author: Mashaw, Jerry L.

ARTICLE CONTENTS INTRODUCTION I. THE BANK WAR AND SUB-TREASURY SYSTEM A. Economics, Politics, and the Constitution 1. Economics 2. Politics 3. The Constitution B. The Administrative Organization and Control of Monetary Policy 1. The Bank of the United States 2. Contracting with "Pet" Banks 3. The "Sub-Treasury" System II. ROTATION IN OFFICE A. Rotation's Democratic Rationale B. Objectification of Office C. Bureaucracy at the Post Office D. The Limits of Reform III. REGULATING STEAMBOATS A. "Bursting Boilers and the Federal Power" B. Regulatory Design C. Administration 1. A Fast Start 2. Executive and Congressional Relations 3. Organization and Process 4. Results 5. Science, Technology, and Steamboat Regulation IV. POLITICAL AND LEGAL CONTROL OF ADMINISTRATION A. Congress and Administration B. Judicial Review of Administrative Action V. ADMINISTRATIVE LAW IN "THE DEMOCRACY" A. The Legal Accountability System B. The Political Accountability System C. The Administrative Accountability System Nobody knows what he will do when he does come .... My opinion is, that when he comes he will bring a breeze with him.

--Daniel Webster, 1829 (1)

INTRODUCTION

Daniel Webster's words, written on the eve of Andrew Jackson's inauguration, described not just a man or an administration, but an era. It was a breezy three decades of technological, territorial, social, economic, and, perhaps above all, political change. (2) Technologically, America went from the age of the sailing vessel, the stage coach, and the quill pen to the age of the steamboat, (3) the railroad, (4) and the telegraph. (5) The technological revolutions in transportation and communications fueled economic growth and transformed the economy. Production of goods moved steadily from artisan or household fabrication toward industrial production organized on a factory model. (6) Because manufacturing is capital intensive and relies heavily on the credit system, industrialization tended to produce not only stronger economic growth, but also stronger swings in the economic pendulum of boom and bust.

Revolutions in technology and industrial organization changed peoples' lives and were experienced as revolutions in social (7) and economic relations. Americans were wealthier, but economic life became both less secure and more depersonalized. (8) Even more profoundly, factory production stripped workers of social status and of control over their own labor. Many Americans embraced these changes. But fear of corporate monopoly, soft-money speculation, and the debasement of the value of honest toil also fueled a groundswell of anxious popular sentiment. (9)

Urbanization further fanned the flames of popular anxiety. The factory system required that workers be brought together in large numbers. Population and economic growth occurred, therefore, at hubs where transportation and communications facilitated industrial and commercial activity. (10) In the cities these newly urbanized and proletarianized Americans jostled together with wave after wave of foreign immigrants whose languages, customs, and religions reinforced native-born Americans' sense of a crumbling social order. Of thirty-one million Americans counted in the 1860 census, approximately one in eight was of foreign birth. (11) The United States began to see its first organized campaigns for workers' rights and restrictions on immigration. (12)

Economic and social change also exacerbated regional tensions. Manufacturing and urbanization were largely confined to the North and the East. And while northerners and southerners had viewed themselves as living in rather different societies almost from the time of the colonization of North America, the industrializing and urbanizing Northeast became ever more distant socially from the plantation South. While these territorial divisions would ultimately lead to war, social divisions between easterners and westerners were also pronounced. Andrew Jackson came to the presidency as a man of the West, embodying the agrarian, republican values of the more newly settled portions of the country. Easterners were, by contrast, more comfortable with an economy built on commerce and manufacturing and with politics centered around traditional elites. (13) During the Jacksonian era, massive territorial expansion exacerbated these North-South (14) and East-West divisions. When Jackson arrived for his inauguration from Tennessee, the United States was only precariously settled on the western banks of the Mississippi and had no solid territorial claim to nearly one half of the lands lying between the Mississippi and the Pacific. By 1860, through war, annexation, purchase, and compromise with foreign powers, all of the territory that would ultimately comprise the forty-eight contiguous states was under United States dominion.

The rules and practices of politics were changing as well. (15) By the time of Jackson's election, the states comprising the United States were shifting rapidly from restrictive, property-based voting regimes to eligibility rules that promoted universal white male suffrage. (16) In most states this broadened electorate, rather than the state legislature, chose Electoral College delegates who were pledged to particular candidates. (17) Candidate selection thus shifted from congressional caucuses to party conventions. These changes in voting rules and nominating practices transformed political participation. In 1824 roughly twenty-seven percent of the eligible population voted in the presidential election. In the period 1828-56, the percentage of the eligible population that voted in presidential elections averaged sixty-nine percent. (18) Hence, from Jackson forward presidents could claim, with some justification, that they were the representatives of the people. (19)

Changes in voting rules, voter participation, and the democratic symbolism of the presidency demanded a reorganization of partisan political life. In order to elect a president, parties had to function both locally and nationally. Politics was no longer controlled by local notables, well-born, and well-to-do amateurs. It was becoming, if not a profession, at least a job. Much of politics remained local, but it could be mobilized nationally because it was supported by patronage distributed from Washington. (20)

The massive changes that swept through Jacksonian America would seem to have set the stage for equally substantial changes in American governance. Political entrepreneurs usually mobilize to respond to what they perceive to be the underlying demands of the times. New issues emerge, old problems are redefined, and the political process generates new institutions to deal with both. And as government pushes out into new fields or deploys new techniques, governmental novelty generates anxieties about the control of governmental power and the accountability of governmental officials. If this pattern of governmental development is generally true, (21) Jacksonian America should have been a boom time for activist government and for the growth of administration and administrative law.

Yet that is not the conventional story of Jacksonian democracy. According to that story, Jacksonian America was characterized not by the building of national capacities, but by the triumph of antigovernment, anti-state political ideology. "The Democracy" that Andrew Jackson symbolized was about power to the people, and to the states and localities, not power to the federal government. (22)

From the perspective of electoral politics and partisan ideology, this conventional story is doubtless correct. In the late 1820s and early 1830s, a political realignment split the Jeffersonian Republican party into two warring factions. (23) The nationalist Clay-Adams wing became the National Republicans, which shortly morphed into the Whigs. The Whig party line embraced change. It emphasized a neo-Hamiltonian program of federally funded internal improvements, regulation and promotion of credit through a powerful national bank, and protective tariffs to aid the growth of American manufacturing. (24) The "Old Republican" wing of the Jeffersonian Republicans became the Jacksonian Democrats, or sometimes just "The Democracy." The Democratic party line was deeply conservative, even reactionary. It appealed to the anxious majority of Americans troubled by developments that the Whigs viewed as "progress." (25) Ideologically, Jacksonian Democrats insisted on strict construction of the Constitution, a small and frugal federal government, and states' rights. (26)

Electorally, the Democrats triumphed. (27) And, as a result, "The Democracy's" political preferences also triumphed. (28) Thomas Jefferson had hoped that the government could operate so invisibly that citizens would hardly notice it. (29) Alexis de Tocqueville, visiting America at the beginning of the Jacksonian era, explained the strength of Americans' attachment to the Union in terms of a federal system that left citizens free to pursue their local interests through local politics. In his words, "The Union is a great republic in extent, but the paucity of objects for which its Government provides assimilates it to a small State." (30)

Given their small government ideology and electoral successes, the Jacksonians might be expected, at most, to have left a weak national government much as they found it. To be sure, the federal government grew in the age of Jackson. While population doubled from 1830 to 1860, federal expenditures more than quadrupled. (31) And federal government civilian employment also grew faster than population. (32) But, as Leonard White again tells us, these increases in the size of the national government were not fueled by the government's taking on new functions. (33) He echoes the conventional view that the expansion of governmental functions in the period 1829 to 1862 affected primarily state and local government, not the federal establishment. (34) Such...