Debates over delegation are experiencing a renaissance.1 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.2 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.3 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.4 In this Essay, we apply intuitions about power transfer to the delegation of violence to private parties.5 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.6
I. Public and Private Violence
According to Anglo-American legal tradition and early modern political theory, the state holds the monopoly on legitimate violence.7 In exchange, the state’s agents are supposed to conform to principles of equity and proportionality, articulated in a web of constitutional and subconstitutional rules and norms.8 Whatever else these legal or social norms allow, they limit the permissible scope of public violence. The limits on legally sanctioned private violence, however, are not so clear.
A. Limits on Public Violence
Take the constitutional rules governing certain kinds of preventive and defensive violence. Under the Fourth Amendment, official restraint on a person’s freedom of movement constitutes a seizure that must be reasonable to be constitutional.9 And the Supreme Court has constrained the degree of force that can be used. In Tennessee v. Garner,10 the Court held that where a fleeing felon “poses no immediate threat to the officer and no threat to others,” capture through deadly force is unreasonable.11 A state actor’s use of defensive force in his official capacity is subject to the same constraints.12
Or consider the Eighth Amendment, which constrains punitive violence by expressly forbidding “cruel and unusual punishments.”13 The Supreme Court has long recognized that some modes of punitive violence are “manifestly cruel and unusual,” like “burning at the stake, crucifixion, breaking on the wheel, or the like.”14 Some modern courts and commentators consider all or most types of judicially imposed corporal punishment to violate the Eighth Amendment.15
B. Limits on Private Violence?
The state has authorized private parties to engage in some, but not all, of these types of violence. When it does, the delegation has traditionally been narrow. Take the shopkeeper’s privilege, for instance. Retailers can hold suspected shoplifters only so long as is “necessary for a reasonable investigation of the facts,”16 after which they become liable for false imprisonment.17 Citizens’ arrest laws similarly authorize private individuals to use violence to apprehend someone they reasonably believe has committed a felony or sometimes a misdemeanor offense.18 Until recently, these arrests were assumed to be “like their official counterparts, . . . protected only so long as they are made without unreasonable and excessive force.”19 And even though we’ve passed into a period of “private prison” experimentation, where private parties can detain individuals as part of their business models, no jurisdiction that we’re aware of authorizes private prisons to impose corporal or capital punishment.20
In contrast to their governmental counterparts, when private parties deploy this kind of violence, it’s unsettled what — or even whether — constitutional restrictions apply.21 If subconstitutional law like torts or criminal law supplied effective constraints, this might not be an issue.22 But there’s good reason for skepticism about the effectiveness of these constraints and — even more concerning — a growing attempt by some jurisdictions to relax legal rules in order to sanction violence otherwise constitutionally forbidden to the state.23 The goal appears to be to enlist private actors to engage in crime control and order maintenance in ways the state itself cannot24 and to obscure the lines of accountability for any violence that may result.25
II. Legal Accountability for Private Violence
A facile answer to this concern is that none of this delegation is of constitutional moment because private violence is not state action. Such an objection misunderstands the problem. There are at least two doctrinal avenues by which state-sanctioned private violence could violate the Constitution: the private delegation doctrine and the state action doctrine.26 The former focuses on the legal sanction itself, on whether the statutory permission to engage in violence in a given situation is permissible. The latter focuses on the exercise of violence itself, on whether a private actor has been transformed into a state actor for constitutional purposes. In a private-delegation dispute, the focus is on the delegator — Congress or the states.27 In a state-action dispute, the focus is on the delegate — the force wielder.28
Both might serve as mechanisms to inhibit government sanction of constitutionally impermissible violence. Consider private delegation first. When a law authorizes or legally immunizes overbroad private violence, constitutional rules would seem to be implicated in that decision.29 Assume, for example, that a state repeals its prohibitions against murder, essentially declaring everyone subject to the executive judgment of everyone else.30 Even in the absence of a public official’s use of force, a legal regime that fails to punish the infliction of private violence would appear to implicate the state for constitutional purposes.31 A state could accomplish something similar by vastly expanding the legal defenses available to violence doers, like creating an irrebuttable presumption of reasonable fear whenever a defendant testifies he was afraid or privileging deadly force on a mere subjective apprehension of bodily harm, no matter how slight the threat or unreasonable the apprehension. These exceptions to the prohibition against murder could swallow the rule. The private delegation doctrine is directly concerned with the government skirting its constitutional obligations by fobbing off its functions, like crime control and law enforcement, to private actors.
What about more realistic laws that fall short of these examples, but allow a kind of violence that government agents could not engage in? Many self-defense statutes now authorize the use of deadly force in a broader array of settings than is permitted to police officers.32 And more proposals keep coming.33 In the aftermath of the racial justice protests of 2020, Florida Governor Ron DeSantis proposed expanding the lawfulness of private deadly force to include circumstances of looting, criminal mischief, or arson that disrupt a business operation.34 It is well settled that a state cannot constitutionally impose the death penalty for property crimes like looting or burglary,35 but some self-defense statutes and proposed legislation authorize private parties to do just that. Nor can state officials, under Tennessee v. Garner, use deadly force to arrest a nonviolent fleeing felon,36 but some state courts have upheld just this sort of conduct when private actors are trying to make a citizen’s arrest.37
Not only might a statutory regime broadly delegating rights to violence be constitutionally problematic on its own terms, it might also transform the private actors enacting violence under its authority into state actors for constitutional purposes.38 In Shelley v. Kraemer,39 the Supreme Court confronted private action — there, restrictive racial covenants — that all parties agreed could “not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance.”40 And although the racially discriminatory private agreement itself was beyond the Constitution’s reach, its enforcement by a state judicial officer was sufficient to trigger state action.41 Indeed, an entire category of state action doctrine presupposes a set of “public function[s]” that are “traditionally associated with sovereignty.”42 Parties that engage in these functions become public agents, no matter their ostensible “private” attributes.43 Most legally authorized “violence work” appears to fit that bill,44 even if not all of it would qualify under a narrow reading of the Court’s current state action doctrine.45
Finally, a state of anarchy unleashed by a state’s repeal of its murder laws or radically overbroad permission for violence could also violate the Republican Form of Government Clause46 or even the Thirteenth Amendment.47 Immunization of private violence dredges up infamous cases like State v. Mann,48 which held that no legal process could protect an enslaved person from physical violence imposed by her owner.49 Certainly a state could not single out a particular individual as outside the protection of the law and subject to the violence of any private person — that’s outlawry,50 and it’s a due process and equal protection violation.51
Are there any limits to a government’s ability to authorize or immunize the violence of private citizens? If so, what are they and from what source do they come? The increase in recent scholarly and judicial debate over government delegations and the rapidly expanding state statutes immunizing private violence make these questions newly urgent.52 Our strong intuition is that there are limits to delegated violence, sourced in constitutional law, but this Essay cannot do more than lay out the issues for the substance of a longer paper. As well as the questions identified throughout this Essay, the issues include whether delegation, privatization, state action, or another doctrine is the best frame within which to assess the concern; how the analysis changes based on whether the violence authorization emanates from the state or federal government;53 what precise kind of power is transferred in these statutes and the impact (if any) that transfer has;54 and what legal or political accountability is optimal for these authorizations.55 In that longer project, we take on these questions and build on our intuition that some forms of legitimate violence are inherently nondelegable, so their exercise is, at best, an act of public agency and, at worst, a form of “new outlawry” — alien to principles of equal protection and due process.56
* Lecturing Fellow, Duke University School of Law & Executive Director, Duke Center for Firearms Law; Associate Professor of Law, Pepperdine University Caruso School of Law (effective summer 2022).
** Melvin G. Shimm Professor of Law, Duke University School of Law. Thanks to the Harvard Law Review for hosting this Symposium with the Duke Center for Firearms Law and for the excellent editorial assistance. We also thank Professors Joseph Blocher and Eric Ruben for comments on an earlier draft and participants at the Symposium for their engagement with the arguments.