Thursday, April 12, 2018

The American Administrate State at Holy Cross/Word from A. V. Dicey

Later today and tomorrow I get to attend a terrifically interesting conference at Holy Cross organized by Donald Brand on the past, present, and future of the administrative state.  The keynote address by R. Shep Melnick, is "The Administrative State in Action: Lessons from Title IX."  Among the participants are several scholars who’ve addressed historical topics or taken a historical approach to the subject, including Aditya Bamzai, Daniel Carpenter, Paul Moreno, Ronald J. Pestritto, Joseph Postell, and Elizabeth Sanders.

My brief is to present the argument of Tocqueville’s Nightmare, much of which develops how American lawyers and judges revised the first of three aspects of the Rule of Law stated by Albert Venn Dicey in his Introduction to the Study of the Law of the Constitution (1885): “that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”  In case something happens while I’m away, here’s the second:
Albert Venn Dicey (wiki)
We mean in the second place, when we speak of the “rule of law” as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. . . .  With us every official, from the prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.