Nathaniel Donahue, Samuel I. Golieb Fellow at the New York University School of Law, has posted a terrific paper, Officers at Common Law, which is forthcoming in the Yale Law Journal:
The Framers of the federal Constitution said almost nothing about how subordinate officers would be held accountable. This Article provides one overlooked explanation for this longstanding puzzle. The Constitution was enacted against a well-defined jurisprudence that has largely fallen from view: a law of officers. When using the term “Officer” and its framework of “Duties,” the Constitution invoked a distinctive method of regulating state power, in which officers were personally responsible—and liable—for discharging duties defined by law. The Framers and Ratifiers of the Constitution expected that these common-law rules would fill the gap left by the document’s silence.
This Article weaves together the strands of statutory and common law that constituted and regulated the early American officer. This system of legal organization, drawn from longstanding English and colonial practice, empowered officers to create a decentralized governing apparatus that blurred the line between public and private. Its regime of harsh personal liability and individual empowerment impeded efforts to construct a top-down hierarchy by empowering and encouraging officers to resist orders from their superiors. As Americans developed a bureaucratic state over the nineteenth- and twentieth centuries, judges and lawmakers replaced this officer-based paradigm of governance with a system of administrative law that was more conducive to the modern state.
The legal regime of early American officeholding is inconsistent with many originalist justifications of the “unitary executive theory,” which assert that the Constitution relies on a combination of managerial control and presidential elections to discipline the state. Because the traditional law of officers centered officers’ independent obligations to law rather than to the executive hierarchy, it actively frustrated efforts to construct the command-and-control executive branch that unitarists believe the Constitution requires. The unitarists implicitly impose a theory of the state that developed as the early American law of officers was fading from view.
--Dan Ernst
