Mashaw on Antebellum Federal Administration

Jerry Louis Mashaw, Yale Law School, has posted Center and Periphery in Antebellum Federal Administration: the Multiple Faces of Popular Control, which is forthcoming in University of Pennsylvania Journal of Constitutional Law. Here’s the abstract:

Steven Calabresi and Christopher Yoo make a basic claim in their new book: all presidents are essentially unitarians. In one way or another they all seek to have exclusive control over the executive power and to direct the activities of those in the executive branch. The evidence for this claim is a broad survey of governmental practice from the earliest days of the Republic to the 21st century. At this level, the Calabrese-Yoo claim is not terribly controversial. A somewhat stronger claim, however, occasionally creeps into their discussion. That stronger claim might be stated as an argument for the normative force of practice. Because presidents have acted consistently as if they were the exclusive seat of executive power, that practice should govern our constitutional understandings of the allocation of power within the federal government.

This stronger claim is much more problematic. To make it out at least the following issues would need to be addressed: what is the normative force of practice. 'What practices count as having normative force.‘ 'And, how is practice to be interpreted‘ Other papers at this conference address these questions and I have addressed the interpretive issue in an earlier article. In this contribution I will leave those issues mostly to the side. However, the title of this panel, 'Presidential and Popular Control of Bureaucratic Elites,' suggests an obvious normative basis for linking presidential control of the bureaucracy with popular democracy. Presidents are popularly elected. Hence, whatever the other arguments for presidential control of bureaucratic elites, one is surely that it tends to implement popular control of the bureaucracy.

I’m sympathetic to the basic thrust of this claim. But my purpose here is different. I want to explore other meanings of popular control and, in keeping with the historical orientation of this conference, how those other meanings were operationalized in the organization of the early Republic. For unitarianism has no exclusive claim to democratic legitimacy. And, as we shall see, other ideas and mechanisms of popular control are competitive with the unitarian vision, both theoretically and as a matter of governmental operation. The recognition that popular control has other meanings and is operationalized through devices that compete with presidential direction can provide a more realistic assessment of both the normative power and the practical reach of unitarianism, whatever the aspirations of antebellum presidents, or their successors.

To some degree this description of practices in the early Republic is a retelling of the old story of the struggle between center and periphery in all substantial organizations, public or private. But my narrative is not entirely descriptive. Early practices were based upon normative considerations. Americans then and now have been committed to multiple forms of popular control of government. I will close therefore with some reflections on the degree to which these commitments, notwithstanding their competition with unitary presidential control, tend to increase popular control of governmental action, which, in some sense, is what democracy is all about.