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Creating the Administrative Constitution

by Jerry L. Mashaw

Politics & GovernmentLaw & JusticeHistory

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Jerry Mashaw's 'Creating the Administrative Constitution' challenges the widespread belief that the administrative state is a twentieth-century innovation alien to America's founding principles. Through meticulous historical research, Mashaw shows that from the republic's earliest days, Congress delegated broad discretionary authority to executive officials, who exercised powers that look remarkably similar to modern administrative governance. Customs collectors made binding determinations about tariff classifications; land office officials adjudicated competing claims; pension administrators developed complex procedures for evaluating eligibility. Mashaw examines how these early administrators were held accountable through congressional oversight, judicial review, and political pressure, developing what he calls an 'administrative constitution' operating alongside the formal written one. This historical recovery has significant implications for contemporary debates about administrative law. If the founders' generation accepted broad delegation and administrative discretion, originalist arguments against the modern administrative state become harder to sustain. Mashaw writes with scholarly precision while making his arguments accessible to non-specialists. Readers interested in constitutional law, American political development, or the ongoing debates about agency power will find essential historical context that is too often missing from contemporary discussions.

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