Jerry Louis Mashaw, Yale Law School, has posted a new article, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861. It is forthcoming in the Yale Law Journal. Here's the abstract:
Jacksonian America was a country in rapid transition, technologically, economically, geographically, sociologically and politically. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to find an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy - including a broadened electorate, offices open to all and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people.
But as is often the case, the institutionalization of democracy demands a corresponding increase in governmental capacities. Destroying the power of the "Monster Bank" gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of "rotation in office" created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side-effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, prompted the creation of a recognizably modern system of health and safety regulation.
"The Democracy" established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging, 19th Century, model of American administration law. In that model administrative accountability was preeminently a matter of (1)political oversight and direction and (2) internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review that found administrative discretion, and therefore non-reviewability, almost anywhere thought by the responsible official was required. Yet, as individuals, officials remained personally responsible for damages whenever a jury determined that their actions were unauthorized pursuant to some standard common law tort or property action.
Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the 21st Century legal imagination, it fit comfortably within Jacksonian democratic ideology. "The Democracy" did not envision the judiciary as having a mandate to protect errant officials from responsibility to their fellow citizens for compensation, or to interfere with the discretionary authority of an executive branch headed by a popularly-elected President. Internal hierarchical control of administration smacks of bureaucracy, but not when viewed as reinforcing the elected President's power to carry out the people's will. Bureaucracy, understood as hierarchical control of executive branches officials, and democracy, understood in "presidentialist" terms, were complements, not competitors. Then, as now, competition between the President and Congress for control of administration was mediated almost exclusively by institutional contestation, not by judicial adjudication. But for Jacksonian's, more than for us, this generally partisan struggle was the essence of the new democracy that they had fashioned, not a blemish on some non-partisan ideal of democratic deliberation.
