We seem to have touched a nerve. Even before it was published, Delegation at the Founding
drew a number of responses from originalists aiming to refute our historical claim that there was no nondelegation doctrine at the Founding.
The speed of the responses—and their sharp tone—may reflect the extent to which the nondelegation doctrine has become the pole star of the conservative legal movement’s project.
The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. To set the stage, recall that originalism entails a commitment to the principle that the Constitution’s meaning was fixed at ratification.
Though the Constitution’s text does not directly address legislative delegations, supporters of the nondelegation doctrine generally claim that the Vesting Clause of Article I—“All legislative powers herein granted shall be vested in a Congress of the United States”
—prohibits Congress from passing laws that delegate too much power or power of the wrong kind.
Article I does not actually say that, of course. The nondelegation doctrine is an inference from the text and structure of the Constitution, and not a necessary one.
That’s why our critics lean so hard on history: To build a convincing case, they must show that the Founders collectively read that implication into the Constitution. More than that, they have to demonstrate that there was broad agreement, at least in principle, on the line that divided permissible from impermissible delegations, even in the absence of textual guidance.
If the Founders did hold such views, it shouldn’t be hard to show. The era is rich in primary sources: political tracts, polemical pamphlets, newspaper battles, correspondence, records of state ratifying conventions, and reports of congressional debates. Those sources contain tens of thousands of pages of sophisticated constitutional debates on issues ranging from implied powers to presidential removal to the scope of the commerce power.
In the originalist telling, the nondelegation doctrine was understood to be an indispensable feature of the separation of powers.
The historical record should be littered with evidence of a shared commitment to something so foundational.
Yet the sources tell a different story. As we detailed in our article, late eighteenth-century Anglo-American law was awash in legislative delegations. Parliament delegated legislative powers to ministers, colonies, corporations, and the King; colonial legislatures delegated legislative powers to governors, municipalities, boards, and other state officials; the states delegated legislative powers to the Continental Congress; and the Continental Congress delegated legislative powers to territorial administrators.
Some of our critics believe that the new Constitution broke with this established practice.
But if it did, it’s odd that its text does not specify new limits on delegation; that no one in the ratification process suggested it might be read to do so; and that vesting clauses in state constitutions with identically tripartite structures (and explicit separation-of-powers clauses) were understood to permit broad delegations.
This evidentiary gap can’t be filled by invoking the Founders’ oft-repeated concerns about the consolidation of governmental power in one pair of hands. It simply does not follow that they believed that legal restraints on defeasible delegations were a necessary implication of the constitutional design.
Early federal practice, in fact, suggests the Founders harbored no such belief. The First Congress passed dozens of laws delegating wide discretion to the President, cabinet secretaries, federal judges, territorial governors, and tax officials.
No meaningful nondelegation objection was raised to any of these laws
—and this at a time when legislators were inventing dubious constitutional arguments at the drop of a hat.
Our critics dismiss these laws for various reasons: This law was about foreign affairs or the territories,
that law wasn’t important enough,
this other law didn’t involve private rights.
But the question is not whether creative twenty-first-century scholars can contrive distinctions that explain away the broad delegations in the record. It is whether they can supply evidence showing that the Founders thought these distinctions were relevant to a live constitutional question. On this front, our critics fall short: None of the delegations we identify were discussed, let alone defended, with reference to the distinctions that our critics now claim were widely understood to be constitutive features of the nondelegation doctrine.
As the 1790s wore on, a few Republicans—most prominently, James Madison and Albert Gallatin—on a few occasions voiced something sounding like the nondelegation doctrine.
But their objections never carried the day and were derided as having been manufactured to bolster their opposition to Federalist legislation.
The debates betray no shared commitment to the principle that some category of laws were beyond the constitutional pale. Even Madison’s rejected arguments suggest, at most, a nondelegation doctrine that was suspicious of delegations involving the siting of post roads and the raising of volunteer armies.
But such delegations would not run afoul of any of the various versions of the nondelegation doctrine that modern originalists espouse.
Originalism is not a forgiving discipline. “[I]t requires immersing oneself in the political and intellectual atmosphere of the time—somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.”
In our view, our critics ought to be more cautious in assigning controversial political beliefs about the need for constitutional limits on legislative delegations onto a Founding generation that, at the moment of fixation, had yet to discern such a need. The originalist argument for nondelegation doctrine fails on its own terms.