Jerry Mashaw has written an important book that will be of substantial interest to scholars of administrative law, bureaucracy, and American political development. Its central concern is the development of administrative law from the founding of the republic through the Gilded Age. Its central argument is that administrative discretion and administrative law, rather than being late and potentially problematic innovations in American national government, were central features of the early American republic.
As Mashaw writes, “there is a hole in the text of the U.S. Constitution” (p. 10). The Constitution creates a national legislature, a presidency and vice presidency, and a Supreme Court. It does not, however, outline processes through which the nation's laws will be administered or through which administrators will be monitored or held accountable.
The hole in the Constitution identified by Mashaw has long loomed large for scholars concerned with the development of governing institutions in the United States. In Theodore Lowi's seminal account, the Constitution's silence on the topic of administration was of little consequence until the creation of the Interstate Commerce Commission (ICC) in 1887. Before 1887, the national government was dominated by a Congress that wrote “virtually self-executing laws” (Theodore J. Lowi, The End of Liberalism, 1979, p. 94).
In creating the ICC, however, Congress delegated its legislative authority to a regulatory agency in a novel way. During the New Deal, the extent of congressional delegation of lawmaking authority to the executive branch and administrative agencies assumed massive and transformative proportions. Ultimately, Lowi argued, “[a] whole new jurisprudence was developed in order to justify it, and the federal judiciary adjusted itself accordingly” (End of Liberalism, p. 274).
Stephen Skowronek's analysis in Building a New American State (1982), meanwhile, emphasizes the unique nature of the nineteenth-century state. Rather than being “stateless,” as Tocqueville and Hegel would have it, the United States possessed a state of “courts and parties.” In lieu of an administrative state, Skowronek argued, the nation was bound together by the decisions of federal judges and the unifying effects of party.
These accounts of the nineteenth-century state point toward a new and disturbing democratic deficit at the heart of the modern administrative state. Particularly from the perspective of Lowi, reforms such as the 1946 Administrative Practice Act can be viewed both as an attempt to recreate political accountability for an administrative state that has acquired too much discretion and as an implicit admission that federal agencies and jurisdictions have proliferated to the point that the modern American state borders on being ungovernable.
Mashaw offers a sustained critique of the highly influential image of the nineteenth-century state that emerges from these works, which he views as both incomplete and misleading. Although he acknowledges that “[t]hese conventional characterizations capture some essential truths about national administrative organization and administrative law in nineteenth-century America” (p. 5), he argues that the true nature of federal administration and of administrative law in the nineteenth century has yet to be fully appreciated. Rather than constituting “a tragic fall from constitutional grace” (p. 233) that occurred only after 1887, Mashaw finds that congressional delegation and administrative discretion have characterized the American state from the beginning.
Mashaw's arguments are grounded in a careful and thorough excavation of the discretionary authority possessed by federal administrators during the first century of the republic, as well as in the distinct methods through which the administration of federal law was monitored and through which elected leaders attempted to render it accountable.
The book is structured chronologically, with sections on the Federalist period, the Jeffersonian era and its aftermath, the Jacksonian period, and the Gilded Age. The scope of Mashaw's research is impressive. He offers discussions of the early development of executive departments, the distribution of military pensions (both in the antebellum era and after the Civil War), enforcement of the Embargo of 1807–9, the adjudication of disputes over land claims in the expanding republic, conflicts over the First and Second Banks, the regulation of steamships, disputes between presidents and the Congress over the control of administration and removal of officials, and the procedures of the Post Office.
Given the Constitution's lack of detailed guidance, the period under study was by necessity one of experimentation. It was understood, Mashaw finds, that attempts should be made for administration to embody principles such as political responsiveness, procedural fairness, and respect for the rights of individuals. In practice, however, effective political control was often difficult to establish. Distant and understaffed, Congress had little ability to routinely monitor administrative actions. From the beginning, the president had less than total control over an administrative arm that included independent or quasi-independent officers, such as those who ran the First and Second Banks as well as the Post Office.
As a general rule, Mashaw finds that administrative law did a surprisingly effective job of creating frameworks that embodied procedural fairness and respect for individual rights. Crucially, he identifies internal rules and procedures as the primary site of these safeguards and of administrative law more broadly during the period under study. Overly focused on the role of external checks and in particular on judicial review as the most important component of administrative law, the author argues, contemporary scholars are in effect blind to the administrative law of the eighteenth and nineteenth centuries. As a result, he suggests, meaningful and instructive continuities in the aims and commitments of administrative law from the early republic through the present day have been overlooked. The United States has struggled to combine effective administration with democratic accountability and political oversight since the beginning, he writes, and can be expected to continue to do so into the future.
In calling into question and adding nuance to some of the assumptions—whether implicit or explicit—that have long underpinned the study of the development of the modern American state, Mashaw's work makes an important contribution to a line of revisionist scholarship that includes the work of Richard John, Brian Balogh, and William Novak. In his focus on the discretion of administrators, meanwhile, Mashaw adds also to the discussion of bureaucratic autonomy associated with the work of Dan Carpenter.
Given the extent of the evidence marshaled, Mashaw's argument that a great deal of congressional delegation and administrative discretion existed from the first days of the republic is persuasive. Scholars interested in American political development, whether fully persuaded by Mashaw's broader critique or not, will find this book a rich source of ideas and potential avenues of inquiry. As the author suggests, the stakes here are potentially quite high: Our understandings of administrative law during the Constitution's first one hundred years inform our interpretations of the modern state and indeed our evaluations of its legitimacy.
