Delegation Archives - Columbia Law Review

Introduction From subtle shifts in the procedural mechanics of self-defense doctrine[footnote]See Eric Ruben, Self-Defense Exceptionalism and the Immunization of Private Violence, 96 S. Cal. L. Rev. 509, 523–528 (2023) [hereinafter Ruben, Self-Defense Exceptionalism] (exploring the shifts in self-defense doctrine).[/footnote] to substantive expansions of justified lethal force,[footnote]See infra Part II.[/footnote] many red-state legislatures across the country are delegating larger amounts of “violence work”[footnote]Micol Seigel, Violence Work: State Power and the Limits of Police 12 (2018) (discussing the range of public and private actors who act as “channels for violence condoned by the state”).[/footnote] to the private sphere. In the wake of antiracism protests in summer 2020, Republican-dominated legislatures proposed a slew of such measures.[footnote]See, e.g., Reid J. Epstein & Patricia Mazzei, G.O.P. Bills Target Protesters (and Absolve Motorists Who Hit Them), N.Y. Times (Apr. 21, 2021), https://www.nytimes.com/ 2021/04/21/us/politics/republican-anti-protest-laws.html (on file with the Columbia Law Review ) (last updated June 23, 2023) (describing measures that were “part of a wave of new anti-protest legislation, sponsored and supported by Republicans, in the 11 months since Black Lives Matter protests swept the country following the death of George Floyd”); see also Jon Michaels & David Noll, Vigilante Democracy (forthcoming 2024) (manuscript at 10–12) (on file with the Columbia Law Review ) (arguing that the Charlottesville protests leading to the death of Heather Heyer demonstrated a power to silence political speech through political violence “that could be wielded by a highly motivated and weaponized group of true believers, willing to do what was necessary to Make America Great Again”).[/footnote] The measures provide private citizens greater license to engage in violence to protect themselves from perceived threats and, supposedly, to contribute to the public maintenance of law and order.[footnote]See infra Part II (explaining both kinds of greater liberalization); see also Rafi Reznik, Taking a Break from Self-Defense, 32 S. Cal. Interdisc. L.J. 19, 22 (2022) (“[F]ollowing their historical precursors who used private violence to conserve a political and economic order that put them atop the social hierarchy, contemporary vigilantes can claim both self-defense and ‘law and order’ on their side.”).[/footnote] Some proposals have been drastic, potentially upsetting what previously had been thought settled practice and doctrine. New Hampshire lawmakers proposed authorizing deadly force against someone who is “likely to use any unlawful force in the commission of riot.”[footnote]HB 197 (2021): Allow Deadly Force Defending a Person in a Vehicle, Citizens Count, https://www.citizenscount.org/bills/hb-197-2021/ [https://perma.cc/9FV6-KLZS] (last visited Jan. 29, 2024) (emphasis added); see also US Protest Law Tracker, Int’l Ctr. for Not-For-Profit L., https://www.icnl.org/usprotestlawtracker/ [https://perma.cc/NML5-RLHA] (last visited Jan. 29, 2024).[/footnote] Arizona legislators wanted to authorize deadly force whenever a property owner reasonably believed it necessary “to prevent the other’s commission of criminal damage” to the property.[footnote]S. 1650, 55th Leg., 2d Reg. Sess. (Ariz. 2022) (emphasis omitted). The proposed bill referred to “criminal damage under section 13-1602, subsection A, paragraph 7,” but the relevant section of the Arizona Code appears to only have six paragraphs in subsection A. See Ariz. Rev. Stat. Ann. § 13-1602(a) (2024). In a similar vein, one Arizona legislator was reported to have introduced a bill loosening the ability to use lethal force against suspected undocumented immigrants who trespass on private property. See Leah Britton, GOP Bill Would Make It Easier for AZ Ranchers to Shoot and Kill Border-Crossers on Their Property, AZ Mirror (Feb. 23, 2024), https://azmirror.com/2024/02/23/republican-bill-would-let-az-ranchers-shoot-and-kill-border-crossers-on-their-property/ [https://perma.cc/CZX2-GHG6]. A legislative supporter of the bill called it “a great Second Amendment bill.” Id. (internal quotation marks omitted).[/footnote] Missouri lawmakers sought to create a statutory presumption that any interpersonal violence was justified by self-defense, entitling an actor to presumptive immunity from arrest, prosecution, and conviction.[footnote]See infra section II.B. The law was referred to as the “Make Murder Legal Act” by law enforcement groups and was narrowly defeated in committee. See Gregg Palermo, Missouri Bill Dubbed ‘Make Murder Legal Act’ Dies in Senate Committee, Fox2now (Feb. 10, 2022), https://fox2now.com/news/missouri-bill-dubbed-make-murder-legal-act-dies-in-senate-committee [https://perma.cc/8N6B-NPVD]. For more on the operation of this law, see infra text accompanying notes 232–243.[/footnote] Florida Governor Ron DeSantis proposed a measure that would permit private deadly force to prevent looting, criminal mischief, or arson that disrupts a business operation.[footnote]Erik Ortiz, “Stand Your Ground” in Florida Could Be Expanded Under DeSantis’ “Anti-Mob” Proposal, NBC News (Nov. 12, 2020), https://www.nbcnews.com/news/us-news/stand-your-ground-florida-could-be-expanded-under-desantis-anti-n1247555/ [https://perma.cc/45QH-JCN3].[/footnote] These proposals capture a cultural zeitgeist that increasingly condones violence, especially directed at those perceived as outsiders or political antagonists.[footnote]See Anthony Michael Kreis, The New Redeemers, 55 Ga. L. Rev. 1483, 1488–89 (2021) (“After four years, the American right’s full-throated embrace of grievance politics at the behest of Donald Trump created a tinderbox. This period was nothing short of a slow burning Second Redemption.” (footnote omitted)); see also Nicole Hemmer, Opinion, Jason Aldean Can’t Rewrite the History His Song Depends on, CNN, https://www.cnn.com/2023/07/20/opinions/opinion-jason-aldean-video-cmt-vigilantism-hemmer/index.html [https://perma.cc/A396-HWVE] (last updated July 20, 2023) (describing the “toxic message” behind Jason Aldean’s song “Try That in a Small Town” in which he threatens that “those who step out of line . . . —whether they ‘cuss out a cop’ or ‘stomp on a flag’—will find themselves facing down ‘the gun that my granddad gave me’” (quoting Jason Aldean, Try That in a Small Town (BBR Music Grp. 2023))).[/footnote] Some measures have gone beyond mere proposals. Numerous states have relaxed their rules for civilian use of force, authorizing private citizens to mete out violence in a greater number of situations.[footnote]See infra Part II.[/footnote] In 2018, for example, Idaho passed a law expanding its justifiable homicide statute to permit deadly force in defense of “a place of business or employment” against anyone who “manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the . . . place of business or employment.”[footnote]Act of Mar. 21, 2018, ch. 222, § 1, 2018 Idaho Sess. Laws 500–501 (codified at Idaho Code § 18-4009 (2024)). The statute says such force is only justified if the intruder entered for the purpose of “offering violence,” but the new amendment provides that “a person who unlawfully and by force or by stealth enters or attempts to enter a . . . place of business or employment . . . is presumed to be doing so with the intent to commit a felony.” Id. The year prior, Iowa also created a presumption that a person reasonably believed deadly force was necessary when they used that force against one who was “[u]nlawfully entering the . . . place of business or employment . . . of the person using force by force or stealth, or has unlawfully entered by force or stealth and remains within the . . . place of business or employment.” Act of Apr. 13, 2017, ch. 69, § 39, 2017 Iowa Acts 177 (codified at Iowa Code § 704.2A (2024)).[/footnote] Professor Cynthia Lee documents how states have expanded the defense of habitation—the traditional right to use deadly force to defend one’s home—to many more places than the dwelling.[footnote]See Cynthia Lee, Firearms and the Homeowner: Defending the Castle, the Curtilage, and Beyond, 108 Minn. L. Rev. (forthcoming 2024) (manuscript at 4–5) (on file with the Columbia Law Review ).[/footnote] As Professor Mary Anne Franks writes, laws like these are “a significant departure from the long-held belief that the use of deadly force should not be used to protect mere property.”[footnote]See Mary Anne Franks, Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women’s Syndrome, and Violence as Male Privilege, 68 U. Mia. L. Rev. 1099, 1106 (2014).[/footnote] Journalist Alex Pareene also chronicles an uptick in legislation immunizing drivers who run over protesters.[footnote]See Alex Pareene, The Right to Crash Cars Into People, New Repub. (Apr. 24, 2021), https://newrepublic.com/article/162163/republicans-anti-riot-laws-cars/ [https://perma.cc/N2BW-667T].[/footnote] Iowa, for instance, provides civil immunity to drivers who, while “exercising due care,” run over protesters blocking public highways.[footnote]See Iowa Code § 321.366A (conferring immunity from civil liability for “[t]he driver of a vehicle who is exercising due care and who injures another person who is participating in a protest, demonstration, riot, or unlawful assembly or who is engaging in disorderly conduct and is blocking traffic in a public street”).[/footnote] And Oklahoma provides civil and criminal immunity for persons who unintentionally injure another if they reasonably believe they must flee a riot in their vehicle and exercise due care.[footnote]Okla. Stat. tit. 21, § 1320.11 (2024).[/footnote] Not coincidentally, legislative interest in these laws picked up after the protests arising from George Floyd’s 2020 murder.[footnote]See U.S. Current Trend: Bills Provide Immunity to Drivers Who Hit Protesters, Int’l Ctr. for Not-For-Profit L. (Sept. 2021), https://www.icnl.org/post/analysis/bills-provide-immunity-to-drivers-who-hit-protesters/ [https://perma.cc/AZ53-2H8D]; see also Nancy C. Marcus, When “Riot” Is in the Eye of the Beholder: The Critical Need for Constitutional Clarity in Riot Laws, 60 Am. Crim. L. Rev. 281, 300–01 (2023) (discussing how “riot” designation can be pivotal in these driver immunity statutes); Epstein & Mazzei, supra note 4. The timing of these laws, in response to heightened attention about inequality, should come as no surprise. See Seigel, supra note 3, at 182 (arguing that “the more unequal are social relations, the more violence is required to preserve social hierarchies, and a cycle of exacerbated inequality and correspondingly greater violence can ensue as elites attempt to keep other people from leaving or revolting”).[/footnote] These regulatory innovations layer on top of existing rules that broadly authorize private violence, like expansive stand-your-ground and citizen’s arrest laws. Stand-your-ground laws give citizens the right to use deadly force even when they could safely leave an encounter.[footnote]See, e.g., Wyatt Holliday, Comment, “The Answer to Criminal Aggression is Retaliation”: Stand-Your-Ground Laws and the Liberalization of Self-Defense, 43 U. Tol. L. Rev. 407, 418–20 (2012) (explaining Florida’s permissive self-defense laws, which largely eliminate any duty to retreat if attacked); see also Ann Marie Cavazos, Unintended Lawlessness of Stand Your Ground: Justitia Fiat Coelum Ruat, 61 Wayne L. Rev. 221, 222 (2016) (describing the “castle law,” which is the “general idea that a man will be excused for using force to defend his home”).[/footnote] In doing so, they provide private actors the prerogative of police, who also owe no duty to retreat from a potentially deadly scenario.[footnote]Kimberly Kessler Ferzan, Response, Stand Your Ground, in The Palgrave Handbook of Applied Ethics and the Criminal Law 731, 742 (Larry Alexander & Kimberly Kessler Ferzan eds., 2019).[/footnote] Yet “this transformation of citizen into cop,” argues Professor Kimberly Ferzan, “is practically redundant because little-known citizen’s arrest laws already do just that.”[footnote]Kimberly Kessler Ferzan, Response, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand Your Ground, 100 Tex. L. Rev. Online 1, 8 (2021), https://texaslawreview.org/wp-content/uploads/2021/09/Ferzan.Publication.pdf [https://perma.cc/L4HA-JU4F] [hereinafter Ferzan, Taking Aim].[/footnote] Citizen’s arrest laws grant private citizens the right to coercively capture and detain suspected wrongdoers, often with little to no training and few to none of the constitutional protections that circumscribe police-initiated arrests.[footnote]See infra section II.A.[/footnote] When these citizen’s arrest privileges are coupled with expansive stand-your-ground immunities, private citizens obtain powers to use violence that equal—and sometimes exceed—the powers of professional law enforcement.[footnote]They may even exceed the power available to members of the military. See ABA, National Task Force on Stand Your Ground Laws: Final Report and Recommendations 5–6 (2015) (“Texas law provides a more lenient rule for a civilian’s use of a firearm than is available to a police officer or even a [soldier] at war, notwithstanding the fact that police officers and military officers receive extensive firearms and defensive training.”); id. at 22 (quoting Christopher Jenks, a Texas law professor and former U.S. military member, as saying that it’s “troubling that under Stand Your Ground, there are less restrictions imposed on U.S. service members using deadly force when they return to the United States than when they are deployed in a combat environment”).[/footnote] Such broad authority for private violence workers—and its expressive effects—can have disastrous real-world consequences. The stories are familiar and harrowing. Ahmaud Arbery, a twenty-five-year-old African American man, was simply out for a jog when three men chased him down in a vehicle and shot him. The killers claimed to be engaging in armed civilian policing in response to a series of recent break-ins in the neighborhood.[footnote]Joseph Margulies, How the Law Killed Ahmaud Arbery, Bos. Rev. ( July 7, 2020), https://www.bostonreview.net/articles/joseph-margulies-arbery-shooting/ [https://perma.cc/FA75-QK3C].[/footnote] But for the fact that one individual recorded the homicide, a criminal case against the three men may never have been brought. At trial, the defendants claimed both a right to engage in citizen’s arrest and a right to self-defense.[footnote]Clare Hymes, Closing Arguments in Trial for Ahmaud Arbery’s Killing Focus on Citizens’ Arrest Law and Claim of Self-Defense, CBS News, https://www.cbsnews.com/live-updates/ahmaud-arbery-murder-trial-closing-arguments-day-1/ [https://perma.cc/YXK8-7RG3] (last updated Nov. 23, 2021).[/footnote] On his own initiative, Kyle Rittenhouse traveled interstate to Kenosha, Wisconsin, to provide volunteer security services amid racial justice protests in the city and ended up killing two men.[footnote]See Ruben, Self-Defense Exceptionalism, supra note 1, at 510–12 (discussing Rittenhouse’s case from a self-defense perspective); Paige Williams, Kyle Rittenhouse, American Vigilante, New Yorker ( June 28, 2021), https://www.newyorker.com/magazine/ 2021/07/05/kyle-rittenhouse-american-vigilante/ (on file with the Columbia Law Review ) (“[T]hanks to the opportunists who have seized on the Rittenhouse drama, the case has been framed as the broadest possible referendum on the Second Amendment. No other legal case presents such a vivid metaphor for the country’s polarization.”).[/footnote] Daniel Perry ran a red light, drove into protesters at a racial justice rally, and then shot and killed a legally armed protester who approached his vehicle.[footnote]Eric Levenson, Lucy Kafanov & Nouran Salahieh, Daniel Perry, Army Sergeant Convicted of Murder for Shooting Black Lives Matter Protester, Asks for 10 Years in Prison, CNN, https://www.cnn.com/2023/05/09/us/daniel-perry-texas-sentencing/index.html [https://perma.cc/S8ZQ-6RCP] (last updated May 10, 2023).[/footnote] Perry had previously texted a friend that he “might go to Dallas to shoot looters.”[footnote]Jim Vertuno, Man Guilty in Texas Protest Killing Posted ‘I Am a Racist’, Associated Press (May 9, 2023), https://apnews.com/article/black-lives-matter-protest-shooting-texas-sentence-04abb51c52d41fa259b2f2ed8ee72f37/ [https://perma.cc/2RFQ-KV2V] (internal quotation marks omitted).[/footnote] Some of these men were convicted of crimes. Others were not.[footnote]See, e.g., Andrea A. Amoa, Comment, Texas Issues a Formidable License to Kill: A Critical Analysis of the Joe Horn Shootings and the Castle Doctrine, 33 T. Marshall L. Rev. 293, 296–97, 313 (2008) (describing the case of Joe Horn, who was not indicted after shooting and killing two men who had burglarized his neighbor's home, despite the 911 operator telling him that property is not worth killing over).[/footnote] These permissive laws and the constitutional and policy questions they raise are not entirely novel. After all, as Professor Farah Peterson reminds, “There are more than enough signs, for those looking to find them, that violence has been an integral part of the American system of government from the Founding era.”[footnote]Farah Peterson, Our Constitutionalism of Force, 122 Colum. L. Rev. 1539, 1548 (2022); see also Jared A. Goldstein, Real Americans: National Identity, Violence, and the Constitution 184 (2022) (describing what he calls the “Violent Constitution” and tracing “recent movements that rely on the Constitution as justification for antigovernment violence”); Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1610 n.22 (explaining the centrality of violence to “the practice of law and government”). As Robert Cover says, “[R]ead the Constitution. Nowhere does it state, as a general principle, the obvious—that the government thereby ordained and established has the power to practice violence over its people. That, as a general proposition, need not be stated, for it is understood in the very idea of government.” Id.[/footnote] Indeed, “[v]iolence is the double-edged sword of democracy.”[footnote]Kellie Carter Jackson, Force and Freedom: Black Abolitionists and the Politics of Violence 4 (2019).[/footnote] It has been used to secure safety and freedom since the beginning but also used to undermine democratic institutions and to subordinate people. Recent events, legislative experimentation with ever-expansive spheres of private authority,[footnote]See Jon D. Michaels & David L. Noll, Vigilante Federalism, 107 Cornell L. Rev. 1187, 1191 (2023) [hereinafter Michaels & Noll, Vigilante Federalism] (exploring “the nascent surge in private subordination regimes and understand[ing] it as both a symptom and an accelerant of today’s dominant legal, cultural, and political movements”).[/footnote] and a growing public distrust of governing institutions and fellow citizens make questions about authorized private violence newly urgent.[footnote]See id. at 1190–91 (studying a related “broader trend among state legislatures to use private rights of action to penalize and suppress highly personal and often constitutionally protected activities”); Peterson, supra note 30, at 1548 (discussing how the post–January 6, 2021, era should affect the analysis of violence and governance). We recognize that the effect of these kinds of laws raise empirical questions. This project, however, should be conceived of as one of spotting a trend and surfacing the issues that arise from them, perhaps before any demonstrable impact on homicides, racial violence, or other metrics can be assessed. We are also cognizant that even small but salient effects of privatized violence can have important behavioral impacts on other margins. For example, unpunished—and often approved—white supremacist terror in the South had a century-long impact on the political composition of the national government. See Richard White, The Republic for Which It Stands 622 (2017) (finding that by 1888, “[s]outhern fraud and violence ensured that every white vote in the South was worth two Northern votes in presidential elections”).[/footnote] This Essay builds on our prior work outlining the limits of the state’s authority to delegate violence[footnote]See Jacob D. Charles & Darrell A.H. Miller, Violence and Nondelegation, 135 Harv. L. Rev. Forum 463, 472 (2022), https://harvardlawreview.org/wp-content/uploads/ 2022/06/135-Harv.-L.-Rev.-F.-463.pdf [https://perma.cc/V5ZT-QV9J]; see also David M. Lawrence, Private Exercise of Governmental Power, 61 Ind. L.J. 647, 647 (1986) [hereinafter Lawrence, Private Exercise] (recognizing that “[t]he transfer of governmental powers raises the issue of to what extent it is constitutionally permissible to delegate those powers to private actors”).[/footnote] and makes two primary contributions to debates about delegation,[footnote]Many of these debates are about intergovernmental power. See generally F. Andrew Hessick & Carissa Byrne Hessick, Nondelegation and Criminal Law, 107 Va. L. Rev. 281 (2021) (adding to the debate concerning the level of delegation that should be permitted in criminal law and arguing criminal courts should permit less delegation than in other areas of law); Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277 (2021) (making an originalist argument against constitutional nondelegation); Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence From the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021) (arguing in favor of the permissibility of congressional delegation by looking to acts of Congress from 1789–1800); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490 (2021) (arguing that, during the Founding Era, a nondelegation doctrine existed that did not permit delegation of important issues from Congress to the Executive). But there is also a rich and burgeoning literature about private delegation and even delegations in the context of coercive government powers. See, e.g., Robert Craig & andré douglas pond cummings, Abolishing Private Prisons: A Constitutional and Moral Imperative, 49 U. Balt. L. Rev. 261, 282–83 (2020) (discussing private nondelegation in the context of for-profit incarceration); Paul J. Larkin, Jr., The Private Delegation Doctrine, 73 Fla. L. Rev. 31, 50 (2021) (discussing the history of private nondelegation doctrine); Richard Primus & Roderick M. Hills, Jr., Suspect Spheres, Not Enumerated Powers: A Guide for Leaving the Lamppost, 119 Mich. L. Rev. 1431, 1470 (2021) (articulating a “corporate nondelegation doctrine” limiting government delegation to private corporations); Clifford J. Rosky, Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States, 36 Conn. L. Rev. 879, 969–70 (2004) (discussing and critiquing force privatization as a form of delegation); Alexander Volokh, The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges, 37 Harv. J.L. & Pub. Pol’y 931, 955 (2014) (discussing both federal and state nondelegation doctrine and distinguishing them from due process concerns).[/footnote] privatization,[footnote]See, e.g., Chiara Cordelli, The Privatized State 9 (2020) (arguing that the most significant wrong of privatization is that it “consists in the creation of an institutional arrangement—the privatized state—that denies, to those subject to it, equal freedom, understood not as mere noninterference but rather as a relationship of reciprocal independence”) [hereinafter Cordelli, The Privatized State]; Catherine M. Donnelly, Delegation of Governmental Power to Private Parties: A Comparative Perspective 1 (2007) (“In the complex and managerial context of modern government, private non-governmental actors exercise delegated legislative and executive powers as a matter of regularity, and not uncommonly, they exercise judicial power too.”); Jon D. Michaels, Constitutional Coup: Privatization’s Threat to the American Republic 4 (2017) [hereinafter Michaels, Constitutional Coup] (discussing the constitutional dimensions of broad privatization of government functions in a number of spheres); Paul R. Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do About It 1 (2007) (“The government exercises sovereign powers. When those powers are delegated to outsiders, the capacity to govern is undermined”); Chiara Cordelli, The Wrong of Privatization: A Kantian Account, in The Cambridge Handbook of Privatization 21, 21 (Avihay Dorfman & Alon Harel eds., 2021) (“[E]ven if privatization could facilitate the achievement of socially desirable goals, there would still be non-instrumental reasons to object to it (or, at least, to many of its instances).”); Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1501–02 (2003) (exploring accountability mechanisms for private delegation).[/footnote] and violence.[footnote]See supra notes 19–23. There have been some scholarly explorations of the limits of violence delegation, but these generally cover only one aspect of the problem and were written before the current environment and escalating legal permissions called for new attention. See, e.g., F. Patrick Hubbard, The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force, 21 Geo. Mason L. Rev. 623, 623–24 (2014) (proposing a strict-scrutiny-like tailoring regime for private uses of deadly force); Rosky, supra note 35, at 966–70 (discussing privatized force in the context of political liberalism); John L. Watts, Tyranny by Proxy: State Action and the Private Use of Deadly Force, 89 Notre Dame L. Rev. 1237, 1242 (2014) (outlining deadly force as a nondelegable government function).[/footnote] First, this Essay reframes the authorization and toleration of private violence from a libertarian model to one that better reflects Anglo-American political and legal traditions. This reframing exposes these efforts as less about expanding negative liberty and more about implementing an affirmative program of social control, especially targeting marginalized communities.[footnote]See Sean A. Hill II, The Right to Violence 6–8 (Ohio State Legal Stud. Rsch. Paper No. 811, 2023), https://ssrn.com/abstract=4634278 [https://perma.cc/US7Z-T5AR] (drawing attention to the way that a de facto right to engage in violence accrues to white people and stands at its apex when used to subordinate racial minorities); see also Shawn E. Fields, Neighborhood Watch: Policing White Spaces in America 5 (2022) (exploring how racial fear drives private policing of Black people, including “by exacting vigilante justice through extrajudicial killing under the guise of self-defense and standing one’s ground”).[/footnote] The Essay then affixes a label to this phenomenon, calling it the “New Outlawry.” The New Outlawry shares features with the ancient practice of outlawry, in which the sovereign removed the protection of the law from designated individuals and left them vulnerable to the plenary use of private violence by any other person.[footnote]It should not come as a surprise that many of these laws are enacted in jurisdictions sympathetic to an ideology that Professor Anthony Michael Kreis calls the “Second Redemption.” See Kreis, supra note 10, at 1488–89.[/footnote] Like traditional outlawry, the state leverages its monopoly on legitimate violence by dispersing it, empowering and immunizing private violence for public ends. Unlike traditional outlawry, however, the New Outlawry minimizes or abandons the ex ante procedural controls on who is exiled from the protection of the law; and it operates in ways that are (1) both more and less particularized, and (2) both more and less temporally contingent. The New Outlawry also operates in ways in which racialized preconceptions and biases are covert but no less fatal. Second, this Essay uses the New Outlawry as a vehicle to explore constitutional limitations on empowerment of private force wielders. Many discrete constitutional domains—state action doctrine, the private nondelegation doctrine, due process and equal protection, and the republican form of government guarantee—rely on an intuition that there are constitutional boundaries to delegation to private parties, especially with respect to violence. But as of yet, few scholars have discussed how these doctrinal areas are linked. State experimentation with the New Outlawry provides an opportunity to explore how these different doctrinal categories share common jurisprudential and normative roots. The following analysis builds on open questions in this debate. As one scholar recently underscored, “[L]ittle contemporary work has been done examining when governments may permissibly authorize deadly force apart from self-defense”[footnote]Robert Leider, Taming Self-Defense: Using Deadly Force to Prevent Escapes, 70 Fla. L. Rev. 971, 1008 (2018) [hereinafter Leider, Taming Self-Defense].[/footnote]—or, one should add, on the limits of that authorization even when characterized as self-defense. Many scholars who have written about private policing focus on the professional, institutional, paid private security guards patrolling malls, gated communities, retail stores, and similar venues.[footnote]See, e.g., Wilbur R. Miller, A History of Private Policing in the United States 1 (2020) [hereinafter Miller, A History of Private Policing] (exploring the provision of “order maintenance, detection and prevention of crime” by private companies in the commercial, residence, and leisure sectors); Elizabeth E. Joh, The Paradox of Private Policing, 95 J. Crim. L. & Criminology 49, 55 (2004) [hereinafter Joh, Paradox of Private Policing] (defining “private policing” for her purposes as “the various lawful forms of organized, for-profit personnel services whose primary objectives include the control of crime, the protection of property and life, and the maintenance of order” (emphasis omitted)); Hans-Bernd Schäfer & Michael Fehling, Privatization of the Police, in The Cambridge Handbook of Privatization 206, 206–07 (Avihay Dorfman & Alon Harel eds., 2021) (examining “civilian private security in relation to public police”); David A. Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1166–68 (1999) (discussing private police “to demonstrate why private policing deserves more attention from legal scholars, to suggest what forms that attention should take, and to draw some tentative lessons from the little we already know”); Comment, Private Police Forces: Legal Powers and Limitations, 38 U. Chi. L. Rev. 555, 556 (1971) [hereinafter Private Police Forces] (“Although private police perform numerous functions, including the provision of armored car, patrol, and investigation services, they are used most extensively as uniformed guards in industrial and retail settings.”); see also Ric Simmons, Private Criminal Justice, 42 Wake Forest L. Rev. 911, 919 (2007) (noting that “[t]he degree to which private entities have taken over law enforcement functions in this country is extraordinary” and describing the ubiquity of private police).[/footnote] Other studies of privatized violence focus on the outsourcing of national security efforts to private military contractors.[footnote]See, e.g., Maryam Jamshidi, The Private Enforcement of National Security, 108 Cornell L. Rev. 739, 741–42 (2023) (seeking to “analyze national security’s private enforcement for the first time”); Herbert Wulf, The Privatization of Violence: A Challenge to State-Building and the Monopoly on Force, 18 Brown J. World Affs. 137, 137–38 (2011) (examining the “privatization of traditionally military and police functions” as one “strateg[y] . . . to tackle the security dilemma”); see also Jon D. Michaels, Deputizing Homeland Security, 88 Tex. L. Rev. 1435, 1437 (2010) (discussing the “deputization” of a “new cadre of private snoops, data crunchers, and . . . vigilantes” that purport to assist in homeland security).[/footnote] This Essay focuses on the unpaid, “volunteer,” noninstitutionalized, domestic private policers who do not wear uniforms (at least not the retail kind) or answer to corporate decisionmakers. Despite differences with their formalized and professional peers—both public and corporate ones[footnote]See Joh, Paradox of Private Policing, supra note 41, at 112 (explaining the ways in which professional private police are different from ordinary citizens who perform policing tasks).[/footnote]—these private actors are also imbued with significant authority.[footnote]Michaels & Noll, Vigilante Federalism, supra note 32, at 1193 (discussing the increasing ways that legislatures are authorizing private subordination, in what the authors term “legal vigilantism”).[/footnote] And this Essay argues that, at least in some circumstances, the state should be responsible when it delegates power to private parties to deal out violence, especially violence that the state itself could not lawfully engage in.[footnote]See Private Police Forces, supra note 41, at 581 (“The routine participation of private police in certain areas of law enforcement may sometimes supplant the public police, and to this extent private police are performing a public function.” (footnote omitted)).[/footnote] The object in this Essay is to surface and scrutinize the deep legal and theoretical issues that arise when the state decides to delegate violence work to private parties—whether by express authorization, tacit permission, post-hoc immunization, or other means. The topic is pressing. Lawmakers are actively proposing and passing legislation. Experiments in one sector of a state’s “ecology of violence”[footnote]Cf. Eric C. Schneider, The Ecology of Homicide: Race, Place, and Space in Postwar Philadelphia 7 (2020) (using this term to describe how individuals both influence and are shaped by their environments with respect to the relationship between systemic inequality and murder cases in Philadelphia). This Essay conceives of this ecology as having a number of features. For example, distrust in the state’s official violence workers may give rise to other non-state-authorized violence work. A state experiment with loosened stand-your-ground laws may occur at the same time a city therein undertakes significant policing reform.[/footnote] are wreaking unintended consequences in another. Forces of both the left and the right are questioning foundational notions of the state as legitimate violence monopolist and the constitutional doctrines that reflect that role, whether those challenges arise in the form of police abolition or expanded rights to carry and use firearms.[footnote]See, e.g., Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 314 (1991) (identifying an individual rights theory of the Second Amendment as ensuring “an armed citizenry in order to prevent potential tyranny by a government empowered and perhaps emboldened by a monopoly of force”); Benjamin Levin, What’s Wrong with Police Unions?, 120 Colum. L. Rev. 1333, 1339 (2020) (“Adopting this understanding of the critiques would speak to a radical vision of police reform—the problem is not that police are unionized but that they have so much power by virtue of constitutional doctrine, their monopoly on state violence, and so forth.”); Karl T. Muth, The Panther Declawed: How Blue Mayors Disarmed Black Men, 37 Harv. BlackLetter L.J. 7, 11 (2021) (“Without the Second Amendment, the tyrannical state enjoys a total monopoly on violence; the downtrodden populace serves at such a government’s heel and bends to its whim.” (footnotes omitted)).[/footnote] The Essay proceeds in four Parts. Part I describes the traditional forms of outlawry and highlights its features as a form of social control. From even before the Norman Conquest, Anglo-Saxon law recognized a form of legal action in which a person could be declared an outlaw—placed outside the protection of the law and subject to the lethal violence of any other citizen.[footnote]See Ralph B. Pugh, Early Registers of English Outlaws, 27 Am. J. Legal Hist. 319, 319 (1983) (noting that outlawry had been imported from Scandinavia the century before and “was a flourishing concept at the Norman Conquest”); H. Erle Richards, Is Outlawry Obsolete?, 18 Law Q. Rev. 297, 298 (1902) (noting that outlawry is “one of the oldest weapons” of the English common law, predating even the Norman Conquest).[/footnote] Over time, this severe judgment grew less harsh and submitted to greater exceptions and qualifications.[footnote]See G.S. Rowe, Outlawry in Pennsylvania, 1782–1788 and the Achievement of an Independent State Judiciary, 20 Am. J. Legal Hist. 227, 229 (1976) (describing the increasing ways that outlawry was made less harsh).[/footnote] After briefly remaining in the states after independence, it was abolished for most people in U.S. jurisdictions in the nineteenth century.[footnote]See, e.g., Mark DeWolfe Howe, The Process of Outlawry in New York: A Study of the Selective Reception of English Law, 23 Cornell L.Q. 559, 572 (1938) (discussing New York’s repeal of its outlawry statutes in 1828).[/footnote] Nevertheless, vestiges of outlawry remained in America, especially as applied to African Americans (both enslaved and free), and formed the basis for a type of racialized social control that relied on the authorization and immunization of private violence. Building on this groundwork, Part II describes what this Essay refers to as the New Outlawry. Although the New Outlawry differs in context, operation, and effect, this web of proposed and enacted laws nevertheless serves a function similar to traditional outlawry.[footnote]See Rowe, supra note 49, at 228 (describing how outlawry in medieval England functioned “as a declaration of war by the state against an offending member”).[/footnote] First, the New Outlawry designates certain persons, under certain conditions, as having forfeited their right to protection of the state (or as lacking any legitimate claim to protection at all); second, it authorizes private actors to judge the violence necessary to incapacitate or punish these persons; third, the express or implicit purpose of these laws is to enlist, empower, deputize, and immunize private parties to deploy violence in service of social control, often in ways the state itself legally cannot.[footnote]See infra Part II.[/footnote] Next, Part III explores how the New Outlawry represents a departure from basic assumptions of the state that form the best account of Anglo-American political and legal traditions. It then describes how these assumptions undergird a set of seemingly disparate constitutional doctrines: those dealing with state action, private delegation, due process, equal protection, and guarantees of republican government. Part IV discusses the implications of the New Outlawry with respect to these doctrines and theories, exploring how courts and policymakers may respond to accelerated experimentation with violence delegations.

Delegation

THE NEW OUTLAWRY

DELEGATION AT THE FOUNDING