The Perils of Administrative Constitutionalism: An American Perspective


This paper argues that in the United States, at all levels of government, agencies charged with enforcing legislation that prohibits invidious discrimination have interpreted their mandates in ways that threaten Americans’ First Amendment and due process rights. This is not surprising, given that agencies’ current cultures and incentive structures incline them strongly toward enhancing enforcement and ignoring countervailing considerations. Legal scholars should heed these examples and think twice before wholeheartedly embracing administrative constitutionalism.