Re-Founding the Administrative State October 24, 2008

Host: The Heritage Foundation. The modern administrative state departs radically from the model of limited government established by the U.S. Constitution. Many people do not realize the depth and profundity of this departure: modern administrative governance flies in the face of literally every foundational principle embedded in the Constitution. However, there is also a significant bloc of people, including some of the most important architects of our modern governing institutions, who do not dispute the depth and profundity of that departure. They simply do not care about it. And therein lies the problem. It is not enough for constitutionalists concerned about the administrative state to show how it deviates from constitutional norms; they also need to show people why they should care about it. There needs to be a “re-founding”: a public reinvigoration of the principles behind the technical scheme of enumerated and divided power enshrined in the Constitution. The best move for constitutionalists in response to the rise of the administrative state may well be to promote veneration (for lack of a better word) of the Founders as smarter, wiser, and far more deserving of respect than their modern counterparts.

A founding member of the Federalist Society, Gary Lawson came to Boston University in January 2000 from Northwestern University School of Law, where his exemplary teaching skills earned him three of the School’s most prestigious awards. At BU Law, he teaches courses in administrative law, advanced administrative law and property law. Professor Lawson twice clerked for Justice Antonin Scalia, first at the Court of Appeals for the District of Columbia Circuit and then at the United States Supreme Court. In 2004, he published (with Guy Seidman) The Constitution of Empire: Territorial Expansion and American Legal History (Yale University Press). The fourth edition of his Federal Administrative Law casebook was published in 2007.

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