Constitutionalism and the common law-nineteenth century social welfare in the United States

Abstract

Analyses of American constitutionalism tend to address it as something very distinct from simple common law interpretation of rights and powers; that is, the ability to overturn statutes as unconstitutional is different in kind, not in degree, from the elaboration of principles in Common Law. Reconsiderations of constitutionalism and the Common Law have begun to note how much in courts on both sides of the Atlantic supervised hierarchical relations-in labour, in family law, between courts-through interpretation of statutes and common law principles during the nineteenth century. In the United States, courts interpreted constitutional principles through common law categories.2 Supervision included what we would now consider administrative law: the supervision of governing officials by the ordinary courts. While in Britain textbooks as well as Benthamite political theory have treated administrative law as part of constitutional law, in American constitutionalism they tend to be analysed as different phenomena, the latter dependent on the emergence of administrative agencies within the executive branch of government in the latter part of the nineteenth century and early part of the twentieth. Through the early nineteenth century in Britain, the High Court had supervised administrative tasks such as administration of the poor laws because the local courts, the Quarter Sessions, had administered the laws and the task of the High Court was to ensure that the local courts were enforcing the Sovereign's law.3 After about 1840, courts supervised the boards then taking over administrative tasks through supervision of jurisdiction, a key to administrative law in Britain.