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Article

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Abstract

My goal in this essay is to expose the vacuity of this argument. Democracy, I'll argue, is an empty standard for judging the desirability or constitutionality of the delegation schemes familiar to American law. This is so because democracy is an essentially contested concept: there is not just one, but rather a plurality of competing conceptions of democracy, each of which emphasizes a dif-ferent good commonly associated with democratic political regimes. Delegated lawmaking schemes never disregard these goods entirely but rather give more or less prominence to one or another relative to some nondelegation alternative. Thus, before someone can persuasively criticize a delegation scheme on grounds of democracy, she must normatively justify the particular concep-tion of democracy that informs her critique. That means that any democracy-grounded critique of a particular delegation scheme will turn out to be derivative of some independent normative critique. It also means that ifwe feel we do have good normative grounds to delegate, democracy will never be a persuasive reason against delegating.

Date of Authorship for this Version

1999

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