Violence and Nondelegation
135 Harvard Law Review Forum 463 (2022)
10 Pages Posted: 23 Jun 2022
Date Written: June 22, 2022
Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this Essay, we apply intuitions about power transfer to the delegation of violence to private parties. In other words, we ask whether there are or should be constitutional limits on the types of force the government can permit private individuals to use against other private parties — in short, a violence nondelegation doctrine.
Keywords: delegation, nondelegation, constitutional law, violence, use of force
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