Today’s Ad Law Reading Room entry is “Officers at Common Law,” by Nathaniel Donahue, which is forthcoming in the Yale Law Journal. Here is the abstract:

The Framers of the federal Constitution said almost nothing about how subordinate officers would be held accountable. This Article provides one overlooked explanation for this longstanding puzzle. The Constitution was enacted against a well-defined jurisprudence that has largely fallen from view: a law of officers. When using the term “Officer” and its framework of “Duties,” the Constitution invoked a distinctive method of regulating state power, in which officers were personally responsible—and liable—for discharging duties defined by law. The Framers and Ratifiers of the Constitution expected that these common-law rules would fill the gap left by the document’s silence.

This Article weaves together the strands of statutory and common law that constituted and regulated the early American officer. This system of legal organization, drawn from longstanding English and colonial practice, empowered officers to create a decentralized governing apparatus that blurred the line between public and private. Its regime of harsh personal liability and individual empowerment impeded efforts to construct a top-down hierarchy by empowering and encouraging officers to resist orders from their superiors. As Americans developed a bureaucratic state over the nineteenth- and twentieth centuries, judges and lawmakers replaced this officer-based paradigm of governance with a system of administrative law that was more conducive to the modern state.

The legal regime of early American officeholding is inconsistent with many originalist justifications of the “unitary executive theory,” which assert that the Constitution relies on a combination of managerial control and presidential elections to discipline the state. Because the traditional law of officers centered officers’ independent obligations to law rather than to the executive hierarchy, it actively frustrated efforts to construct the command-and-control executive branch that unitarists believe the Constitution requires. The unitarists implicitly impose a theory of the state that developed as the early American law of officers was fading from view.

This article is a wide-ranging but deep dive into the law of officers that prevailed around the time of the Constitution’s framing, detailing that law’s evolution as the modern administrative state emerged and grew closer to its present form. Building on prior work in the area, “Officers at Common Law” challenges any pat story about the Constitution’s treatment of the relationship between officers and their superiors, including the president. At the end of the day, the article reminds us all to be cautious when making claims about the past. As Donahue chronicles, the Framer’s law of officers—like all law—was fluid and lived within a context we must not approach anachronistically.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.