Jonathan Gienapp's new book falsely sees the Framers' criticisms of parchment barriers as evidence that the Constitution did not have a fixed meaning.
In recent years, much attention has been paid to the power of administrative agencies to adjudicate cases and to receive deference from the courts. While I have criticized such adjudication and deference as inconsistent with the separation of powers as a political principle, what about the Constitution’s original meaning? Do these features of modern government conform to the original meaning? The issue is complicated, but extremely important.
Let’s start with adjudication by administrative agencies. The Constitution vests the judicial power in the federal courts. But what is the judicial power? One possibility is that it is the power to make decisions in certain types of cases. For example, under one influential view, the final decision as to a potential infringement upon a person’s common law rights is judicial power. And therefore that decision must be made by a court. Under this view, when the government regulates a person’s use of their property, that decision must be adjudicated by a federal court (rather than an administrative agency). If this were the Constitution’s original meaning, it would be part of an argument that administrative adjudication is unconstitutional.
But is that the correct original meaning of judicial power? Since the language of the term is not clear, one must look more deeply to determine its meaning. One possible way to understand the legal meaning of a term that refers to an existing institution is by reference to the rules and practices of that institution. Under this view, one might conclude that the judicial power had the meaning mentioned above if the judiciary regularly adjudicated cases involving common law rights. The argument would be even stronger to the extent that this was understood to be a rule governing the judiciary and to the extent it was a stable rule.
The problem with this argument, as applied to the judiciary, is that it is not clear the judiciary always decided these common law cases. One argument against the judiciary having decided them is associated with the public rights doctrine, which was endorsed by Justices Scalia and Brennan. They argued that sovereign immunity prevented an individual from suing the government. Since the government did not have to provide any relief, the government could choose to provide lesser protection in the form of administrative agency action rather than the greater protection in the form of judicial review.
Let’s assume that Scalia and Brennan are correct that the judicial power argument does not cover cases where sovereign immunity is involved. But that is not the end of the matter. While individuals could not sue the government, they could often sue the officer who enforced the law. This ability to sue the officer was not a mere accident, but a crucial aspect of the law that allowed a government, which was protected by sovereign immunity, to be subjected to the rule of law.
These lawsuits against the officer were regularly brought in court. They allowed the individual to recover damages for the violation of their rights. And they did not confer deference on the government. Under this view, then, the judicial power argument would not require lawsuits against the government to be in court, but would require that the government allow lawsuits against government officials to be in court. This understanding of the Constitution would significantly cut back on administrative agency adjudication.
While I have made the argument in this post based on the judicial power, it might also apply as to due process. Under that clause, no person could be deprived of property except pursuant to procedures that were traditionally followed.
In the end, this argument suggests that a key portion of the administrative state is unconstitutional. While the government may have discretion to act outside of the courts, its officers often will not. And that will supply significant protection to the people.