ADMINISTRATIVE CONSTITUTIONALISM AT THE 'BORDERS OF BELONGING': DRAWING ON HISTORY TO EXPAND THE ARCHIVE AND CHANGE THE LENS.

Author:Tani, Karen M.
 
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INTRODUCTION 1604 I. HISTORIANS AS EXCAVATORS OF ADMINISTRATIVE 1607 CONSTITUTIONALISM II. THE FREEDMEN'S BUREAU AND THE MEANING OF 1610 "INVOLUNTARY SERVITUDE" III. CHINESE INSPECTORS AND THE MEANING OF DUE PROCESS 1621 IV. ADMINISTRATIVE CONSTITUTIONALISM AS AN "ARENA OF 1627 STRUGGLE" INTRODUCTION

This symposium builds on a decade of scholarship on the role of administrative agencies in constructing and elaborating constitutional meaning--a phenomenon we now call "administrative constitutionalism." (1) Drawing on scattered evidence from across the contemporary administrative state, as well as a discrete set of historical case studies, legal scholars have made this phenomenon visible and intelligible. Sophia Lee's pathbreaking work explored the way that administrators in the Federal Communications Commission, the Federal Power Commission, and the National Labor Relations Board, respectively, interpreted the constitutional requirement of equal protection in the labor and employment arena between the 1930s and the 1970s. (2) Risa Goluboff, Anjali Dalai, and Eric Fish have separately examined the role of the Department of Justice in defining the scope of constitutional civil rights and liberties. (3) Joy Milligan and I have done the same for the Department of Health, Education, and Welfare (the precursor of what is now the Department of Education and the Department of Health and Human Services). (4) Mining federal regulations and appellate court decisions, Gillian Metzger has found contemporary examples of administrative constitutionalism in the work of the federal Department of Housing and Urban Development, the Food and Drug Administration, and the Office of Legal Counsel. (5) Other legal scholars have identified significant constitutional interpretations coming from the U.S. Post Office, (6) the Federal Radio Commission, (7) the Social Security Administration, (8) and the War Department. (9) And a raft of recent work illuminates how bureaucrats outside the federal government, at the state and local levels, have engaged questions of constitutional significance. (10)

Many of these legal scholars have also tackled normative questions, starting with those of greatest salience to the field of American public law: What does the phenomenon of administrative constitutionalism mean for a system of government that is democratic, federalist, and committed to separation of powers? In such a system, are agencies legitimate and appropriate interpreters of constitutional meaning? (11)

This Article places that scholarship into conversation with a robust strand of historical research on Americans' everyday experiences with law and government, including administrative agencies. Contributors to this strand of research--which has generally come out of history departments--display little interest in the questions about institutional competency and democratic accountability that drive many legal scholars. But through careful and creative archival research, they have documented administrative constitutionalism in action. Their findings offer legal scholars not only a broader empirical foundation, but also a different and important set of questions: Who has reaped the benefits of administrative constitutionalism and who has borne its burdens? How have agencies used the Constitution to shape and police the "borders of belonging" that have figured so crucially in American life? (12)

This Article proceeds in four parts. Part I explains why historians have been well positioned to see administrative constitutionalism in action (even if they remain uninterested in it as a legal phenomenon). The two subsequent parts offer extended examples. Part II discusses the Freedmen's Bureau's interpretations of the terms "slavery" and "involuntary servitude"--practices that the Thirteenth Amendment barred but did not define. Part III turns to federal immigration officials' interpretation of the Fifth Amendment guarantee of due process in the late nineteenth century, amidst struggles over Chinese immigration. Part IV concludes with a discussion of why historians' questions--not simply their findings--enrich the study of administrative constitutionalism and one of its parent fields, administrative law. Unlike many scholars of administrative law, historians tend not to focus on how agencies should make decisions, or how much power agencies should have visa-vis other governmental institutions. Their interest, rather, is how administrators wielded the power of the state to affect people on the ground--materially, politically, socially, and otherwise--and how people who were subject to regulation in turn affected the content and limits of administrative action. Historians' work thus offers a useful reminder of the stakes of administrative law. These stakes include not only the legitimacy and jurisdiction of the so-called fourth branch but also the chances and choices of everyone it touches.

  1. HISTORIANS AS EXCAVATORS OF ADMINISTRATIVE CONSTITUTIONALISM

    A defining trait of scholarship on administrative constitutionalism, according to Gillian Metzger, is a "conceptual commitment to seeing constitutional law in ordinary law contexts." (13) When it comes to the "ordinary law" of administrative agencies, however, "seeing" is not so easy. Much of what agencies do is insulated from the broader public and unlikely to attract the attention of Congress, the courts, or the White House. By extension, a vast amount of administrative activity is not visible in the types of sources that legal scholars most often consult--legislative records, regulations, published court opinions, and the like. Further hindering visibility is the subtlety of some administrative interpretations of the Constitution. (14) Only in the fullness of time does their significance become apparent. (15)

    All of these factors suggest the value of a historical approach, one that looks back on an agency's work and recovers evidence of day-to-day administration. And as it turns out, historians have been doing this very work, albeit not with administrative constitutionalism in their sight lines.

    Importantly, many of the historians doing this work are also committed to the ordinary--or at least, to counterbalancing generations of prior scholarship that privileged elite perspectives and formal politics. They entered the profession when cultural history was ascendant and social history established; as a result, they see value in studying people whose low status or limited access to formal power may have prevented them from "making history" in the traditional sense. (16) Under the now dominant approach to studying political history, what counts as politics includes much more than contests over political leadership, and history's "losers" often merit as much attention as the "winners." (17) Legal history has long since moved in the same direction--beyond the mandarins of the bench and bar and toward an approach that emphasizes law's messy and sometimes unpredictable encounters with the people it presumes to govern. (18)

    These trends are relevant here because they have resulted in deep and creative readings of the detritus of administrative agencies--including from time periods that predate the modern administrative state (as conventionally understood). (19) Historian Gautham Rao, for example, has mined the day-today records of custom houses in the early national period to illuminate the waxing and waning of distinct visions of governance. (20) Historian Cathleen Cahill has used the archives of the U.S. Indian Service to provide a revisionist account of the modern administrative state itself, pegging its origins not to Gilded Age railroad regulation or to the New Deal but to an older project of settler colonialism. (21)

    Twentieth-century regulatory innovations have provided even richer fodder for historians. Margot Canaday has drawn on records from the Immigration and Naturalization Service, the Selective Service System, and the Federal Emergency Relief Administration, among many other agencies, to show how contemporary understandings of homosexuality took shape and how the label "homosexual" came to signal the citizen's quintessential "other." (22) Michael Willrich used the records of Chicago's agency-like municipal courts to explore Progressive-Era tactics for governing poor and working-class Americans. (23) From the records of the federal Office of War Information, among other agencies, James Sparrow documented how Americans grew acclimated to a much more visible and powerful federal government during and after World War II. (24) Studying the military as a bureaucracy (specifically, the military chaplaincy), Ronit Stahl has shown how the modern American state managed religious pluralism and, over time, built "state-sponsored American religion." (25) The list could continue. (26) These scholars might not describe their work as histories of administrative governance, and yet that is what they have illuminated, in fine-grained detail. (27)

    In some cases, historians have also illuminated administrative interpretations of the Constitution--albeit without naming those interpretations as such. The subsequent Parts offer two dramatic and consequential examples. Taken together, these examples showcase the raw material that historians have to offer legal scholars, as well as the normative value of engaging with their findings. Recovering the experiences of marginalized and non-elite people, many now long dead, might not lead to any particular policy prescription for the present-day administrative state, but it foregrounds the human stakes.

  2. THE FREEDMEN'S BUREAU AND THE MEANING OF "INVOLUNTARY SERVITUDE"

    A natural starting point for this exercise is the Civil War: In the wake of that great conflict, the legal landscape changed dramatically (even if on the ground, much remained the same). A fundamental feature of this new landscape was the Thirteenth Amendment, passed by the Republican-dominated U.S...

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