Nondelegation and the Unwritten Constitution

George and I had a brief exchange on Twitter (here, here, here and here) about the nondelegation doctrine, and since The Constitutionalist allows more than 280 characters, I thought it might be interesting to continue it here.

George wrote, quite correctly, that the nondelegation doctrine depends on understandings of the separation of powers that cannot be found in the constitutional text. (On the “unwritten constitution” generally, see George’s excellent new book of that title and his essay at this site regarding it.)

My question was whether structural arguments are separable from textual ones. In other words, there are unwritten understandings, but in this case, they derive fairly directly from written ones. George convincingly notes that we read the text through the lens of historical debates about the separation of powers.

I agree with that. Put more concretely, my inquiry pertains to how we evaluate unwritten constitutional claims. Those rooted closely in the written constitution seem to merit greater deference, especially given the unique importance of the written constitution to the American regime.

I suspect George and I aren’t far apart on this. But teasing that out might be illuminating.

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