Chapter 3 The Constitutional History of Delegation: Rules and Changes Thus, in the beginning, all the world was America, and more so than that is now... John Locke, Second Treatise of Civil Government (1690) Liberty and property...c’est le cri anglais...c’est le cri de la nature.1 Voltaire (Ide´es re´publicaines, 1765) As it will be argued in this chapter of the book, classical constitutional law incorporated the conceptual assumptions from which the notion of delegation derives. Locke’s argument is, in this respect, exemplary of the philosophical presuppositions of classical constitutionalism. It justifies and explains in point of theory premises and distinctions that later reflected themselves in actual legal practices. This assertion is, of course, not meant to state a causal connection; the Lockean account is simply a conceptual archetype, namely the most accurate philosophical justification of the legal phenomenon. Additional references can be adduced in support of the claim that classical constitutionalism and constitutional law presupposed i. clear-cut conceptual dichotomies, ii. constitutional practices that faithfully instantiated those conceptual distinctions, and iii. almost “geometrically” drawn legal borders by virtue of which the integrity of those divisions was both reflected and protected. A quotation from Benjamin Constant provides sound evidence in this respect: “Government, outside its sphere, must have no power at all; within it, it could not have enough.”2 Related, the normative constitutionalism of the eighteenth and nineteenth centuries consistently premised man to be a relatively and relationally rational being. This presupposition transpired as a counterfactual analytical assumption (as in Locke’s argument) or as a pragmatic profession of anthropological faith, derived 1 Liberty and property...it is the English call...it is the call of nature. 2 Cited by Wilhelm Ropke,€ The Social Crisis of Our Time (New Brunswick, New Jersey: Transaction Publishers, 2004), p. 193 “Le gouvernement en dehors de sa sphe`re ne doit avoir aucun pouvoir; dans sa sphe`re il ne saurait en avoir trop.” B. Iancu, Legislative Delegation, 69 DOI 10.1007/978-3-642-22330-3_3, # Springer-Verlag Berlin Heidelberg 2012 70 3 The Constitutional History of Delegation: Rules and Changes from observation and in no need of further defense (as the statement can be found in the Federalist Papers). The ultimate fundamental-legal consequence of this foun- dational premise was the systemic justification and acceptance of limits to legal rationality and therefore also to the manipulation of social and economic relations by means of positive law. Furthermore, this foundational belief in relative human rationality and its “natural” borders, translated conceptually into the natural-law justification of the division between state and society, private and public, right and privilege, internal and external affairs. In terms of fundamental law, it served to constitute systemic arrangements that distinguished between areas or fields of public action more intensely subject to judicial control (therefore intensely rationalized) and, respectively, areas where the intensity of public law judicial interference was minimal. In the latter case, consequently, decisions based on political rationality, i.e., considerations of opportunity or the aggregation of votes prevailed.3 Legal practices associated with these foundational presuppositions would be, after the demise of classical constitutionalism, characterized as examples of “legal formalism” or of the intrinsic “technicality and formalization” (thus Ernst Forsthoff) of the principal constitutional institutions and structures.4 Such labels are, nonetheless, only half- true, since they bear the reductionistic imprint of hindsight view. What later appeared formalistic and technical, looked at from the viewpoint of a foundationally “disenchanted” legal world, was, in its original conceptual and legal-phenomenal environment, “natural.” The distinctions and limitations for which the concept of delegation served from the onset as a self-evident analytical-legal shorthand were part of a coherent and consistent legal metaphysics. The remark that US constitutional evolutions offer the best illustration of this interrelation between foundational concepts, phenomena, and positive-legal institutions should be reiterated. By the same token, American constitutional developments provide an ideal vantage point from which the transformation and gradual disentanglement of these three strands can be observed. America adopted European natural law (the universe of justifications derived from classical liberal constitutional theory) with quasi-religious belief in the rightness of its postulates and merged this credo with an intensely religious belief in the evidence of its divine ordinance. Thus, in response to the British assertion of parliamentary sovereignty, James Otis (“The Rights of the British Colonies”, 1764) declaimed that: “The supreme power in the state is jus dicere only: -jus dare, strictly speaking, belongs alone to God.”5 Locke in particular was so revered around the revolutionary and 3 See generally the volume contributions in Bogdan Iancu, The Law/Politics Distinction in Contemporary Public Law Adjudication (Utrecht & Portland, OR: Eleven International Publish- ing, 2009). 4 Ernst Forsthoff, “Begriff und Wesen des sozialen Rechtsstaates”, in Ernst Forsthoff (Ed.), Rechtsstaatlichkeit und Sozialstaatlichkeit-Aufsatze€ und Essays (Darmstadt: Wissenschaftliche Buchgesellschaft, 1968), p. 165 ff. 5 In Dieter Grimm, “Europ€aisches Naturrecht und Amerikanische Revolution—Die Verwandlung politischer Philosophie in politischer Techne,” Ius Commune III (1970), 120–151, at p. 146. 3 The Constitutional History of Delegation: Rules and Changes 71 constitutional adoption times, that the Second Treatise served as “a political gospel” and his theses were ubiquitously put forth “as if he could be relied on to support anything the writers happened to be arguing.”6 The impact of this natural law intellectual foundation on positive fundamental law was enhanced by the vastness of space, remoteness from European convulsions, and the apparent inexhaustibility of resources: the state of nature, as it were. European theorists commonly projected their “state of nature” anthropologies on the remote continent. This was of course a purely imagined rendition and their descriptions differed in direct relation to imagination and the argumentative needs at hand. Thus, Hobbes’s Americas are evidence of the warlike and devilish character of human nature in the absence of sovereign power. To Locke, in contrast, the primary inconvenience of the “natural” life in the New World is pre-societal lack of property title, division, and legal security thereof: this is why “an Indian king” is “clad worse than a day labourer in England”7 But the inhabitants of the new continent also regarded themselves in like fashion and, moreover, they did so with the immediacy and genuineness of direct experience. The Mayflower compacts are the classic example yet the spirit persisted until well into the nineteenth century. James Willard Hurst provides the 1836 example of a newly formed claimants’ union in Pike Creek, Wisconsin. They adopted a Claimants’ Union Constitution for the purpose of prompting the legal security of their newly occupied lands, a security for the benefit of which, as the preamble stated, they had “encoun- tered the hardships of a perilous journey, advancing into a space beyond the bounds of civilization, and having the many difficulties and obstructions of a state of nature to overcome.”8 All these preconditions offered the singular possibility of turning the eighteenth century theoretical justifications of limited government, writing almost on blank slate, into positive, judicially enforceable constitutional law. Another earlier remark should now be revisited. It was argued in the introduction that liberal constitutionalism presupposes a certain degree of homogeneity of funda- mental constitutional structures and therefore also a measure of constitutional syn- chronicity. This remark appears at first sight paradoxical, since the legally enforceable constitution and judicial review were, through to the twentieth century, American idiosyncrasies. Enforceable constitutions and the review of constitutional- ity are in Europe and the rest of the world, at least where they were at all introduced, fairly recent legal phenomena. However, the contradiction is only apparent and superficial. The premise and constitutional preservation of a certain model of legisla- tion and legislative reservation, which in the United States was juridically expressed through the nondelegation doctrine, resulted in other paradigmatic Western legal orders from legal institutions that were functionally analogous in a constitutional sense (meaning, foundational to the legal order). Private law autonomy and structural arrangements partly took over the constitutional function of legal-constitutional 6 Id., p. 123. 7 Second Treatise, Par. 41. 8 Willard Hurst 1967, at p. 4. 72 3 The Constitutional History of Delegation: Rules and Changes rules and constitutionally enforceable fundamental rights.9 In fact, even in the United States, the legislative reservation understood as intrinsic to the Constitution was only expressed through, not enforced by means of the nondelegation doctrine. The major divisions of constitutionalism (state/society, private/public, internal/ external, ministerial/discretionary,