The non-delegation doctrine is one of the core constitutional claims that Abolish Private Prisons advances in its efforts to end the practice of incarcerating people for profit – to that end, we offer some insight into our thinking about the principle in this series of blog posts. As a heads up, this piece is focused on philosophical writing from several hundred years ago and can float into rather esoteric spaces, but we view this background as necessary to understanding the non-delegation doctrine.

At its core, this claim relies on a basic principle: there are functions of government that only government is allowed to exercise. For example, only Congress can pass laws (Article I, Section of the Constitution says “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”). This seemingly simple statement has led to a lot of litigation about what it means to exercise legislative power, but nobody disputes the underlying principle that only Congress can pass laws.

Our nondelegation theory is one that appeals to conservative jurists. Conservative advocates and writers have relied on the non-delegation doctrine to advance their vision of a limited government based largely on the idea that government has only the powers that have specifically been “delegated” from the people to the government. This line of thought has its roots in the Lockean social contract theory and was deeply informative to the political thinking of the Constitution’s drafters. This connection has led the U.S. Supreme Court to cite political philosophers in a swath of constitutional decisions, from the Second Amendment to the Fourteenth Amendment.

Advocates who opposed the commercial and social government programs of FDR’s New Deal first raised the private non-delegation doctrine as a federal constitutional concern during the 1930s. Despite a handful of successful challenges, the doctrine fell into disuse for 70 years.  More recently, however, some federal judges and academics, particularly conservatives, have demonstrated a renewed interest in revival of the doctrine. And despite this dormancy in the federal courts, the doctrine has been alive and well in state appellate court decisions, with some states developing complex caselaw delineating the permissible boundaries of private exercise of government power.

No matter the doctrinal framework, a fundamental question at hand in our work is whether punishment is a core government function. This question is not new: philosophers have been writing about punishment for at least a few hundred years. Two of the early political philosophers, Thomas Hobbes and John Locke, had dramatically different conceptions of the source of the right to punish. Both men relied on the thought experiment of people in “a state of nature” to analyze these conceptions.

For Hobbes, punishment had no place in a state of nature precisely because in such a state, all men are equal; punishment, however, inherently requires a stratification of power to justify the moral correctness of punishment. This stratification excludes private punishment as a just action because there is morally relevant stratification between private parties with respect to one punishing the other. When a government arises and men are no longer in a state of nature, the “sovereign” acquires the moral right to punish, perhaps because each person has transferred the right to punish *himself* to that sovereign but has not transferred that right to another private party.

This understanding of punishment is in accord with a less well-known but influential philosopher, Samuel Freiherr von Pufendorf. Using categories familiar to modern criminal moral thinkers, Pufendorf discusses punishment as “a means of social control available only to sovereigns for the specific purpose of restraint, deterrence, and reform.” Further, “punishment may even be foregone altogether if the interest of the state demands it, because punishment is a type of administrative sanction recommended by ‘prudence … conjoined with the duty to rule others.’”

Locke, on the other hand, explicitly believed that individuals had a right to punish while in a state of nature: “The other power a man has in the state of Nature is the power to punish the crimes committed against that [Natural] law.” But just as explicitly, individuals give up the right to punish as soon as they move from a state of nature to a political society: “Both these he gives up when he joins in a private, if I may so call it, or particular political society, and incorporates into any commonwealth.” There is significant academic debate about how a person agrees to participate in society (whether there must be affirmative participation in the society by voting, for example, or whether passively benefiting from the social agreement is sufficient), but in any case, the ability to punish resides solely in the Sovereign once individuals leave the state of nature and participate in society.

Importantly, all three philosophers shared a common refrain: whether punishment was proper in a state of nature or only in civil society, the purpose and the administration of punishment could not be driven by personal or vain concerns. Within the current structure of pay-for-punishment adopted by government and private prisons, the involvement of private prisons must be described as self-interested. Those corporations participate in the criminal punishment system solely to make money for themselves and their shareholders. Private prisons would not exist if they did not make private profits. In any conception of early political philosophy, such investment renders the punishment fundamentally immoral – the morally justifiable right to punish belongs solely in the hands of the sovereign, so private punishment is morally indistinguishable from a variety of other rights-encroaching activities such as assault or kidnapping.

To close, we think that this philosophical examination is crucial not only to understanding core government functions relevant to the non-delegation doctrine, but also to determining the proper bounds of punishment under the Thirteenth Amendment, the discussion of which we leave for another day.

Further reading:

Thomas Hobbes – The Leviathan

John Locke – The Second Treatise of Civil Government

dre cummings and Robert Craig – Abolishing Private Prisons: A Moral and Constitutional Imperative