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Aditya Bamzai: Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States
Michael Ramsey

Aditya Bamzai (University of Virginia School of Law) has posted Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States (Harvard Journal of Law and Public Policy, Vol. 45, No. 795, 2022) (42 pages) on SSRN.  Here is the abstract:

In the period immediately preceding the Constitution’s adoption, New Yorkers engaged in a spirited debate over whether a proposed delegation from the State to the federal government authorizing collection of an impost would violate the clause of the New York Constitution that vested “supreme legislative power” in the State Assembly and Senate. Some, like Alexander Hamilton, believed that the clause did not bear on delegations to the federal government, but rather governed the relationship between the branches of the New York government. Others believed that a grant of impost authority impermissibly transferred legislative power away from the state legislature. This Article addresses the debate over delegation that occurred during this controversy—which, in the words of Alexander Hamilton, “begat” the Convention that wrote the U.S. Constitution. The Article also addresses the equally significant debates over delegation that occurred during the consideration of the Constitution itself. As this Article shows, the debates that led to and surrounded the Constitution’s adoption were in no small part debates about the legality of delegating sovereign legislative authority.

And in conclusion:

During the period immediately before the Constitution’s adoption, members of the New York legal community—including Alexander Hamilton—debated whether the New York Constitution’s Legislative Vesting Clause prohibited the delegation of impost authority to the federal government. The participants in the debate accepted that New York’s Constitution incorporated a nondelegation principle, though they disagreed over the doctrine’s scope. The debate over the impost led, almost directly, to a debate over a new federal charter, the Constitution, in which the legality of delegation was again at issue.

These debates provide compelling evidence that key members of the generation that wrote the U.S. Constitution believed that the vesting of “legislative power” in one entity implicitly barred delegation of such power to another. The very debates that led to the adoption of the federal Constitution were, in part, debates about nondelegation.