Written constitutions and the administrative

state: on the constitutional character of

administrative law - Tom Ginsburg

Notes
Brief Explanation
This article discusses the relationship between administrative law and
constitutional law, and argues that administrative law holds a more constitutional
character than is usually thought. The author suggests that the conventional
separation between the two fields is not as clear-cut as it seems and that
administrative law should be considered more 'constitutional' in character than
constitutional law itself.

Here are the three main arguments made in the article:

1. The constitutional character of administrative law: The author suggests that

administrative law often performs similar functions to constitutional law, such as
protection of rights and limitation of government. However, administrative law is
more 'constitutional' because it affects more people in their everyday lives through
things like drivers' licenses, business permits, social security payments, and taxes.
It is in these commonplace interactions that administrative law plays a key role in
protecting the citizen from the state's arbitrary power.

2. Limited role of written constitutions in constraining the administrative state: The

author argues that written constitutions do relatively little to legally constrain the
administrative state. Instead, their main role is to establish the broader structural
apparatus of governance and accountability. This leaves administrative law as a
relatively free-standing field characterized by flexibility and endurance—qualities
often associated with constitutions.
3. The importance of comparative administrative law: The author concludes that
the exercise of comparative study helps to expose the limits of written constitutions
and calls for greater attention to comparative administrative law as a feature of the
unwritten constitution of nation-states.

The article also discusses the symbolic or expressive functions of constitutions,

stating that they limit government, establish institutions, and serve as important
symbols for the polity. However, the author asserts that only constitutions can
claim distinct functions that administrative law does not accomplish: only
constitutions can be said to constitute the nation or bind the people together
through common understandings.

The article delves into the concept of 'localism' where the author argues that
administrative law is often a better reflection of local norms and practices than
constitutions. The author states that constitutions serve as important symbols
because people believe they do things that they do not. Administrative law
systems, on the other hand, are more localized and enduring, and hence worthy of
greater attention in trying to understand the effective legal
regulation of government.

Then it discusses two other points in the end such as -

1. Constitutional Realism and Focus on Constitutional Values: By treating

administrative law systems as constitutional in character, it allows us to focus on
areas where constitutionalist values are commonly encountered. This means paying
attention to routine matters like drivers' licenses and building permits, which may
not involve high stakes but affect a larger number of people. While these matters
may not carry significant symbolic weight, they have practical implications for
individuals.

2. Shifting Attention from Constitutional Courts to Micro-level Interactions:

Considering administrative law systems as constitutional in nature redirects
attention from constitutional courts. Constitutional courts have traditionally been
viewed as central actors in upholding the rule of law. However, due to their
exclusive and elevated jurisdiction, they often become embroiled in high-profile
politics. This involvement in political controversies can undermine their ability to
effectively limit the power of the state. By focusing on micro-level interactions
between citizens and the state, administrative courts can play a role in safeguarding
the rule of law without being subjected to the same political pressures as
constitutional courts.

In summary, treating administrative law systems as constitutional emphasizes the

importance of everyday matters and citizen-state interactions, while reducing the
reliance on constitutional courts and their susceptibility to political interference.
Administrative courts can potentially serve as effective institutions for upholding
the rule of law in such circumstances.

Main Points
The main pointers of the article:

1. The article argues that administrative law is often overlooked in favor of

constitutional law, even though both are crucial in managing the relationship
between the state and its citizens.

2. The article presents three main arguments. First, it suggests that the division
between administrative and constitutional law is porous, with administrative law
often having a more constitutional character.

3. Second, the article argues that written constitutions do little to constrain the
administrative state and that the primary role of constitutions is to establish the
broad structure of governance and accountability.

4. Third, the article suggests that comparative study can highlight the limitations of
written constitutions and calls for more attention on comparative administrative
law as part of the unwritten constitution of nation-states.

5. The author also suggests that while constitutions serve to limit government,
establish institutions, and serve as important symbols, administrative law achieves
some of these functions in a less grand manner.
6. The author posits that administrative law often more accurately reflects local
conditions, providing more enduring governance in many societies.

7. The article discusses the concept of localism and argues that administrative law
is often a better reflection of local norms and practices than constitutions.

8. Lastly, the article suggests that constitutions have converged over time due to
international influences, while administrative law remains more bound to the
nation-state, reflecting more localized and enduring systems of governance.

Important Arguments
The article argues for the central importance of administrative law, which is often
overshadowed by constitutional law. The author makes three main arguments:

1. The distinction between administrative and constitutional law is porous and

administrative law can be considered more 'constitutional' in character than
constitutions themselves. Administrative law interacts with citizens more
frequently and broadly in everyday life, impacting more people than the grand
issues of constitutional law.

2. Written constitutions do little to constrain the administrative state. Instead, they

establish the structure of governance and accountability. Therefore, administrative
law is a relatively free-standing field characterized by flexibility and endurance,
traits typically thought to be embodied in constitutions.

3. Comparing different systems can help expose the limitations of written

constitutions and highlight the need for greater attention to comparative
administrative law as part of the unwritten constitution of nation-states.

The article also discusses how constitutions work in limiting government,

establishing institutions, and serving as important symbols for the community.
Administrative law also fulfills some of these functions, but in a less grand
manner.

Finally, the article discusses the concept of 'localism' and argues that
administrative law is often a better reflection of local norms and practices than
constitutions. It also notes that constitutions have converged over time due to
international influences, while administrative law remains more bound to the
nation-state, reflecting more localized and enduring systems of governance.