Morag-Levine on Common Law, Civil Law, and the Administrative State

Noga Morag-Levine, Michigan State University College of Law, has posted a new article, Common Law, Civil Law, and the Administrative State: Early-Modern England to the Lochner Era. It is forthcoming in Constitutional Commentary. Here's the abstract:

Police power jurisprudence during the 19th century revolved around the choice between two administrative models. The first subordinated regulatory power to the common law, while the second granted legislators and governmental agencies greater freedom to determine the appropriate limits of regulatory authority. The meaning of this distinction has been reopened by a body of scholarship collectively termed "Lochner revisionism" that by and large rejected earlier equations between common law and laissez faire. While there has developed a reasonable consensus regarding what common law was not, we are left without a clear picture of what it stood for in fact within these debates. Put differently, what was the antithetical regulatory model against which defenders of the common law mobilized?

This article finds this antithesis in continental civil law generally, and cameralist continental police institutions, more particularly. The compatibility of this foreign model with American constitutionalism was the central question on the table in late 19th-century police power debates, this article argues. The same question, in one form or another, has been at the heart of the history of common law from its inception in early modern England.

The idea that the common law conferred distinctive rights on English subjects was already put forth in opposition to 14th and 15th century English monarchs who sought to emulate the mercantilist policies of their French counterparts, as the writings of Sir John Fortesque attest. Substantive protections to liberty and property were one element of these rights. But what was said to distinguish the common law first and foremost was its placement of decisionmaking authority regarding the circumstances justifying interference with these substantive rights in the hands of judges and juries, rather than the king and his officials.

Civil law administrative models, by contrast, conferred broad regulatory discretion upon the state's executive power. In the context of 19th-century police power debates in England and the United States, defenders of the common law model insisted that due process required that judges and juries retain final authority over the reasonableness of regulatory interventions, in accordance with nuisance law. This procedural guarantee ensured in turn that the state not invoke public safety and health as a pretext for legislation driven by socialist and other reform agendas. Opponents disputed the equation between due process and nuisance law and argued that American constitutionalism was similarly consistent with regulatory and legislative discretion along the lines of the continental model. Across a number of key decisions, dealing both with criminal procedure and work-hour legislation, the Supreme Court rejected the argument that due process entailed common law process. In Lochner the tables turned, and the Court aligned with the view that due process gave judges a final say on the reasonableness of regulation, in accordance with common law. By the end of the New Deal - effectively the next round in this ongoing debate - proponents of European-inspired administrative reforms moved ahead.

The tension between civil and common law models of administration received scant attention in post-New-Deal legal and constitutional history. Instead, the constructed dichotomy between "laissez-faire" and "the welfare state" came to replace the common law/civil law axis. This narrative obscured the dichotomy that had dominated American regulatory law and politics for nearly a century - and over which English lawyers and judges had struggled for much longer. Once this historical debate has been recaptured, its imprint can be recognized in contemporary American divisions over the transplantation of continental-modeled regulatory instruments and constitutional principles.