Nondelegation and the (Un)Written Constitution

Thanks to Greg for his thoughtful comments—and especially for his generous praise of the book and essay.

I agree with him that text and structure very often go together and that unwritten constitutional claims that are rooted in text and structure merit greater deference. Or, as I think I’d put it, are simply more powerful claims. On this, let me highlight the book’s title, which should matter to textualists: It’s the (Un)Written Constitution, because the written text is primary; it is what we are interpreting. But because the written text does not always explain itself, we read the text based on underlying ideas. This is an empirical observation, not a normative invitation to depart from text to your own preferred political, philosophical, or moral reading. 

So beginning with text, I agree with Greg that it immediately points to the structural separation of powers. Here text and structure are very close. The text and structure of the Constitution set the legislature up as the first branch of government. It is clearly the lawmaking body. But can the legislature delegate its power to an agent? Text and structure do not provide an obvious answer to this question. Historical debates can help us better understand the logic of the separation of powers, but the history itself is often characterized by debate. 

Julian Davis Mortenson and Nicholas Bagley’s “Delegation at the Founding,” which rejects the nondelegation doctrine, is powerfully consistent with text and structure. So is Ilan Wurman’s “Nondelegation at the Founding,” which makes the case for a nondelegation doctrine. Read these articles. Both are trying to make the best sense of text and structure. But the debate turns on historical evidence and the logic—theory even—of the separation of powers. It is these unwritten understandings that shape how we see constitutional structure. In this case, I think it’s difficult to say that one of these reading is closer to the written Constitution than the other. And that’s because both are powerfully linked to the written Constitution, but they read it differently based on a debate about historical evidence and the logic of the separation of powers. I do not see how we get around these sort of debates (which frequently occur among originalists).    

Leave a Reply