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What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.
In opposition to my claims about American law, Paul Craig lobs three critiques from across the pond. His two main arguments concern the English history of prerogative and administrative power – though in addition, he makes a conceptual point about the distinction between legislative and judicial power. It will be seen that Craig's account repeatedly misunderstands the history and even the conceptual framework.
Nonetheless, his article usefully draws attention to some important issues. This is therefore a good occasion not simply to respond, but more broadly to explore three important questions about early prerogative and administrative power. First, how can one distinguish absolute prerogative power and administrative power in seventeenth- and eighteenth-century England? Second, how did the English resolve the tensions between their inherited types of administrative power and their constitutional principles? Third, how did Americans resolve the tensions between their inherited types of administrative power and their constitutional principles?
Philip A. Hamburger,
Early Prerogative and Administrative Power: A Response to Paul Craig,
Mo. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2769