I think @BlakeProf's point is well-taken. But it gets at a deep problem with public discourse around law.

@jdmortenson and I have heard privately that we have shaken some originalists from their priors. Which is great! https://twitter.com/BlakeProf/status/1354162267328110592

But there's not much incentive for them to go public with their views. Why bother? Nick Parrillo and @jdmortenson and me have made the argument. Plus, doing so might alienate friends, mentors, and people who might think about giving you a job the next time the wheel spins.

That's a problem on both the left and the right. I can say from personal experience that the shit you get from your own team for bucking the party line is way worse than the shit you get from the other team, which is already priced in.

That's why conservative #neverTrumpers are heroic, even if it seemed to liberals like it's the easiest lay-up in the world to say that Trump was unacceptable and dangerous. I'm thinking here of folk like @jadler1969, @chris_j_walker, and @WillBaude, but there are others.

But the nondelegation doctrine cuts much deeper. It's a fundamental part of the conservative legal movement's 21st-century theology. It's what underwrites the basic skepticism about public governance.

And even if an originalist thinks the historical case for the nondelegation doctrine is weak, he or she may think the functionalist case is strong. So what's the upside to challenging the supposed right-leaning historical consensus?

This kind of silence is how bad history becomes accepted wisdom. "I haven't really looked into it, it's very hard to say, but delegation is super troubling. Have you read Hamburger?"

I don't know how to fix the problem. But I think it runs deep. And I'd love to hear ideas for how we can get academics to be more comfortable pushing hard against ideas -- not just politicians -- that their team finds uncomfortable.

/fin