Peter Lindseth (University of Connecticut School of Law)
Abstract
In an earlier essay, Professor Lindseth argued that the notion of delegation from the national legislature, as well as the principal-agent relationship that it implies, should be retained in our understanding of the transfer of regulatory power from the nation-state to supranational institutions. In this essay, Professor Lindseth extends this argument to self-regulation and privatization. He recognizes that the nature of regulatory power in an era of diffuse "governance" makes it difficult to sustain the notion of delegation empirically, because the effective holders of regulatory power do not operate under the national legislature's supervision and control in any realistic sense. Nevertheless, Professor Lindseth asserts that, because constitutional institutions of national "government" at the core of which he places the elected legislature are still widelyviewed as privileged expressions of national self-rule, this strongly suggests that we must retain some form of the notion normatively, even where its empirical underpinnings may be questionable. A specific historiographical perspective guides Professor Lindseth's normative commitment to the notion of delegation. Self-regulation, privatization, and supranationalism should be understood historically as aspects of the same phenomenon of diffusion and fragmentation of normative power that began with the emergence of the modern administrative state in the first third of the twentieth century. As with the administrative state, any durable constitutional settlement of the emergent system of diffuse regulation will need to incorporate how changing structures of public governance are "experienced" in relation to historically-rooted ideas and values of legitimate government inherited from the past. Working from this perspective, Professor Lindseth examines the thesis recently advanced in the scholarly literature on privatization and self-regulation that describes the relationship between "government" and "governance" in terms of contract rather than of delegation. He finds that the primary drawback in the contractual approach, aside from the questionable parity it suggests between the public and private spheres in matters of public regulation, is the manner in which it renders the imposition of procedural and substantive constraints on private regulatory authority a matter of mere political expediency. Rather, he asserts that, when private actors exercise public regulatory power (that is, power exercised in pursuit of publicly-defined ends and backed up by the coercive power of the state), the imposition of such constraints becomes a matter of constitutional necessity. Such delegation constraints help to ensure that private actors remain within the bounds of their delegated authority and that they exercise their authority reasonably. More importantly, delegation constraints facilitate the flow of information about how delegated normative power is actually being used by private actors, and in this way are essential to governmental monitoring of norm-production in the diffuse system of governance. The imposition of delegation constraints is thus necessary to maintain the connection between the diffuse system of governance and the institutions of constitutional government that remain the primary locus of democratic legitimacy in modern political life.
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