Research on administrative constitutionalism has generally come out of law schools, from scholars specializing in public law. A limitation of the existing scholarship is its relatively thin empirical foundation. Administrative constitutionalism is hard to see because much of what administrators do is hard to see, and because the significance of some administrative interpretations only becomes apparent over time. This Article expands the archive, by alerting legal scholars to fine-grained historical research on Americans’ encounters with administrative agencies. This body of work—coming largely out of history departments—is particularly attentive to the experiences of marginalized and non-elite populations. And although the historians writing in this vein have not always emphasized the constitutional aspects of their stories, those aspects are there between the lines. By analyzing two examples—the Freedmen’s Bureau’s interpretation of the Thirteenth Amendment and immigration officials’ interpretation of the Fifth Amendment due process guarantee—this Article demonstrates what historians have to offer the study of administrative constitutionalism, both empirically and normatively. American history, this research reminds us, is about competing constitutional visions. Administrators helped pick winners and losers in an ongoing battle for formal legitimacy.
Administrative Constitutionalism at the "Borders of Belonging": Drawing on History to Expand the Archive and Change the Lens,
U. Pa. L. Rev.
Available at: https://scholarship.law.upenn.edu/penn_law_review/vol167/iss7/1