Article   |   Volume 167, Issue 7

Administrative Constitutionalism as Popular Constitutionalism

By
167 U. Pa. L. Rev. 1783 (2019)

May 2019












In the debate about who controls the meaning of the Constitution, popular constitutionalism appears to be losing. Popular constitutionalist methods for popular input into the evolving meaning of the Constitution account for a diminishing fraction of changes to constitutional meaning over time. Social movements remain rare, Congress is increasingly dysfunctional, and recent presidential proclamations and executive orders have not engaged constitutionalism with the degree of specificity necessary to influence the meaning of the Constitution. Focusing on these traditional methods, it appears that judicial supremacy has won and that courts exercise near‐exclusive control over the meaning of the Constitution.

In this Article, I argue that such appearances are deceiving. As the debate between popular constitutionalism and judicial supremacy faded from legal scholarship a decade ago, new descriptive and normative accounts of agencies as actors involved in determining the meaning of the Constitution have emerged. Administrative agencies, through their statutory implementation and enforcement roles, are involved in the application of constitutional principles embedded in statutes. While agencies lack the popular pedigree of Congress and the President, these implementation and enforcement decisions often involve the people either formally through notice‐and‐comment rulemaking or informally through interest group and social movement engagement. Although not labeled “popular constitutionalism,” these forms of popular engagement with agencies that have been richly explored in the historical and normative accounts of administrative constitutionalism should be understood as forms of popular constitutionalism.

Beyond connecting administrative constitutionalism to popular constitutionalism, this Article will identify another means by which agencies through their actions involve the people in constitutional meaning determinations. This account requires a shift in focus from the popular inputs into administrative constitutionalism to the outputs from administrative constitutionalism. I show through the example of recent administrative actions enforcing the Fair Housing Act how administrative actions serve as catalysts for popular debate about the constitutional principles embedded in statutes and the means by which these constitutional principles should be applied.

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