A Deputy Cannot Deputize
“It is a principle of common sense,” Spencer Roane said (pg. 145, Irreconcilable Founders), “as well as common law, that a deputy cannot make a deputy. The power of changing the government was, therefore, not bested in the state governments, but remained with the people thereof.” In the immediate context, Roane is arguing that the Constitution was not an act of the state government, subsuming them, but of the people, but the principle does not stop there or have mere assertion (or mere common law) as its base. The principle is one inherent to the limited, delegated nature of authority, and its implications are vast.
The Principle
Authority is found in man because God delegates that authority to man (Rom. 13:1), because God deputizes man to do certain duties. The nature of this deputization is necessarily limited: man has the right to do so much and no more. More, the borders of the delegation are sharp, not fuzzy, at least in God’s eyes. God gives authority in some places and withholds it in others; he does not give half-way, to produce a gray space. When man acts within his authority and on it, he does right; when he acts in any other way, outside of his authority or by neglect of his authority, he does wrong. All human authority follows this pattern of delegation, flowing down from God.
The result of this specificity of deputization is the limit which Roane observes above: when a man is given the right to do X, he does not necessarily have the right to let another do X. In fact, as a rule he has a duty to do X which excludes letting another accomplish his task. Regardless of that, however, he only gains the authority to delegate his deputization to another when God delegates that deputization-authority to him. Only the original authority, God, can delegate freely, without requiring a specific grant of delegation-right, as He has the complete and total right to dispose of His authority as He wishes.
Some Consequences
Under this principle, the people have no authority to delegate to their civil government any of the people’s own authority, except insofar as God grants them that right. That ‘insofar’ contains within it the theological necessity of limited government- limited in ways our modern state refuses to be. The people have the right to delegate to the government the authority of punishing murderers (Gen. 9:5-6) and those who partake of sins in the character of a murder (adultery, rape, blasphemy, theft, kidnapping-for-sale, etc, as per the rest of Scripture’s civil code). The authority to punish these, note, is not given to the people to exercise; they are instead given the authority to delegate that authority to an institution, the civil government.
Bound up in this limiting principle is also that the authority to deputize may be limited not just in what is deputized but in whom it may be deputized to. Parents have an authority (right) to delegate certain parts of the education of their children (though not the lion’s share (Prov. 1:1-7; Deut. 6:4-8)). They do not, however, have the right to delegate that authority to the civil government (to the church? A complicated matter, for another time). Thus, government education is immoral.
Among the other authorities the people cannot delegate to the government is: the establishment of a state religion, the power to take property at will (eminent domain), the power to enslave the innocent (the draft), the suppression of the church, regulation of the economy (punishment of theft is not the same thing) beyond monitoring the border, and removal of privacy.
Another consequence, the last for today, is that the administrative state’s legislative and judicial functions, as well as all their executive function not entirely under the President’s control, must be completely illegitimate. The Constitution never invests the government with the right to delegate its powers in any way, except by the incorporation of an officer into the branch holding those powers (i.e. of a judge into the judiciary or of an executive into the executive or of a Congressman into the legislature). Certainly it does not provide the authority for one part of the government to create a body or invest a body with its exclusive powers. The government, as the people’s deputy, has not been given the authority to deputize bodies within itself. As such, the entire body of administrative law, excepting as it regulates it purely internal affairs that affect no citizens, is illegal, illegitimate, and empty of authority. It is merely an exercise of power.
The principle has more applications. But that’s the nature of principles: if we are consistent, we carry them across the entirety of our lives, applying the truth comprehensively. The results are often widespread.
God bless.
