Administrative Statutory Interpretation in the Antebellum Republic (with Avi Perry), 2009 Michigan State Law Review 7 (2009)
Jacksonian America was a country in rapid transition. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy—including a broadened electorate, offices open to all, and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people. But as is often the case, the institutionalization of democracy demanded a corresponding increase in governmental capacities. Destroying the power of the “Monster Bank” gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of “rotation in office” created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, generated public demand for protection that prompted the creation of a recognizably modern system of health and safety regulation. “The Democracy” established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging nineteenth-century model of American administration law. In that model administrative accountability was preeminently a matter of political oversight and direction and internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review combined with almost unlimited personal liability of officials for erroneous action. Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the twenty-first-century legal imagination, it fit comfortably within Jacksonian democratic ideology.
Date of Authorship for this Version
Mashaw, Jerry L., "Administrative Statutory Interpretation in the Antebellum Republic" (2009). Faculty Scholarship Series. Paper 1175.