William & Mary Bill of Rights Journal


Kate Jackson


[...] This Article suggests that agency institutions should be measured against the notion that popular sovereignty demands not consensus and consent, but instead institutions that permit citizens to understand themselves as coequal participants in the collective decision-making process.

Part I situates administrative agencies in an understanding of liberal democratic constitutionalism that eschews outmoded notions of popular sovereignty and natural law. It will then explain how adequately conceived notions of the separation of powers and the rule of law cannot serve as indefeasible objections to administration. Part II makes a positive case for agency authority by drawing from the insights gained from political theory’s representative turn. It will first define this important intellectual development and then explain how administrative agencies might fit comfortably within a representative system. The Article concludes by showing how theories of representation can inform some enduring debates in administrative law and suggesting some changes that might enhance the legitimacy of agency action.

This abstract has been taken from the author's introduction.