It’s been almost four months since my last project update.
I use these updates to think out loud, to act as a sort of public record mainly for myself, as well as to solicit advice and gauge interest. From the start I’ve said that the primary goal of this project was “to build a basic foundation” of knowledge that could be applied opportunistically to a variety of different things, so zigs and zags were part of the plan from the get go. Still I feel a bit embarrassed reading my previous update and seeing that the paper I’ve worked on bears very little resemblance to the planned paper described there.
On the other hand, I do have a viable draft of a paper which applies what I have learned. It’s rough, but just getting a first draft is always the hardest part.
Last week in particular ended up being very productive on the writing front. I wrapped up the first draft of the aforementioned paper, and I also knocked out a piece for Liberal Currents.
I have had a laundry list of structural reforms I think are a good idea for months now. I’ve tinkered with it along the way but I more or less have a package, as alluded to in my last update. The problem is that turning this into a written piece that is anything but polisci daydreaming verging on utopianism (Sam Hammond described the precise genre of writing as being “very LARPy”). The more I read, the more I also feel that the specific reforms aren’t the most important thing. There’s systemic effects I want to aim for, but the potential range of reforms that could pull it off is vast. In the American case, operating under the assumption that the Senate is impossible to abolish (because it would require unanimous ratification from the states) and Americans are too wedded to their history to consider anything but a presidential system, I would want:
- The House of Representatives to have primacy over the president, the Senate, and the courts, but also to have institutional competence at writing good law.
- The Senate to serve purely as a quality filter against bills coming out of the House responding to very short term political calculations, but a filter that the House could unilaterally override with enough support.
- The President is elected by truly majoritarian means (no Electoral College) but is also more or less removed from the legislative process, and the House has accountability mechanisms with real teeth.
- The Courts are independent but when their decisions run strongly counter to the elected branches, Congress has the energy and competence to simply update statutes (in response to court interpretations of statutes) or the Constitution (in the case of judicial review).
This last one I struggled with a great deal. In many ways the original motivating questions that instigated this project centered around what, exactly, the role of the judiciary should be, as well as constitutional law in general. When one takes seriously the sheer sloppiness and inconsistency of human institutions—before one even begins to add bad faith and cynical actions into the mix—it becomes easy to question the very idea of rule of law. I did not want to shrink from asking hard questions about rule of law, but also worried about the consequences of throwing out the idea entirely, if that’s where I ended up after further inquiry.
Both the paper and the article address this gnawing dread of mine, in I think a productive way.
The paper is one part theory and one part application. The theory is the one thing that has remained fairly consistent, though I keep refining it bit by bit, and the paper is by far the best version yet. The questions, which I have formulated in a couple of different ways, are now:
- Who are the actors?
- What actions did they take, and what actions could they have taken?
- What social or institutional tools were used to take these actions? What tools could have been used instead?
- What intersubjective effects did their actions have, with what scope?
- How much uncertainty was there about the effects of the actions at the outset?
I also flesh out three theoretical types of actors; with the stand-up comedian and the judge standing at opposite ends of a spectrum of institutionalized action, and the entrepreneur taking elements of both to become a distinct type of its own.
All of that was quite easy to write at this point, though I scrutinized it quite closely and invited (and received) criticism of it which helped substantially. But my original application section was a non-starter. I wanted to apply it to Congress as an institution; fleshing out its operation, showing how certain types of congressional action fall into one of the three types of actors I formulated, and so forth. Then moving forward to a discussion of reform. I attempted this section many times but ultimately threw it out.
Instead, I returned to law. I decided to look at law as it operates in practice, but not through one institution but across the (small-c) constitutional system. I picked the Voting Rights Act, because it is a subject of particular fascination for me. James Baldwin expressed skepticism about the success of the Johnson Administration’s civil rights statutes because, as he put it, there was a whole amendment (the 15th) already. What difference could a statute make? This was mere months before VRA passed. It’s a good question!
So the application section of my paper begins with the 15th amendment and a brief history of its enforcement or lack thereof. I dive into some of the conditions that made VRA possible, as well as some of the individuals who had an outsized influence on creating those conditions. Throughout I walk through the institutional mechanics of how these things are passed and how enforcement is empowered and used.
As I said, the draft is rough. I need to tighten the application section more, and stitch the theoretical framework in more seamlessly throughout. But I’m quite pleased with where I am.
The Liberal Currents article is ostensibly about the judiciary but is really about the role of independent institutions within a democratic order, and more indirectly about the role of democratic mechanisms in the first place. Coming out against elected judges, for judicial review, and for an easier amendment process so that the elected branches can respond to judicial decisions by simply updating legal (including constitutional) texts, is not all that conceptually pathbreaking. That last one is perhaps novel to many, as it was to me when Adam Rust first put it to me that way on statutory law. But what really focused it for me was something that appears a bit secondary in the piece:
In terms of elected officials, then, our goal should be to foster strong formal party organizations made up of professional politicians who seek to enact good laws and govern well. “Good” and “well” are not neutral, technocratic terms, but—whatever the specific values and visions inform them—they do require administrative and technocratic competence to execute. Professional politicians do not have those competences personally, and we should not fool ourselves into thinking otherwise, but they can have access to those competences in the form of well-resourced staff for their office, committees, and branch—like the old Office of Technology Assessment in Congress. Yet even if the typical professional politician lacks the administrative and technocratic competence to execute good laws and govern well, this is even more the case for the typical voter, who has no staff at all. This is why ballot initiatives and similar tools are a bad idea, and the legislative and constitutional history of states like California testifies to this fact.
The role of professional politicians is to be the point of accountability for citizens. They do not need to be mirrors for the preferences of citizens; indeed I would argue they should not be, and that selling good ideas to a potentially skeptical public is an important duty. But under a regime of effectively universal enfranchisement—that is, universal enfranchisement without voter suppression tactics—elections exist to ensure that professional politicians must take the interests and values of citizens into account. If this electoral mechanism is somehow weakened, as in the case of the six year Senator terms, or the franchise is restricted, then segments of the population will be left with few tools to stop the government from steamrolling their interests and their values.
There’s a tension between lifetime appointed judges and democratically elected representatives, on the one hand, but also between democratically elected representatives and directly democratic ballot initiatives, on the other. I want to weaken the formal power of the first, empower the second, and do away with the third entirely. But from the standpoint of either independence or democracy that seems a tall order. Isn’t this a case where one need to pick one or the other in some sense?
I don’t think so. I think that elections are an accountability mechanism, not a governance tool. To govern well, we need professional politicians with large, well paid staffs who can expect to have a career providing their expertise to politicians from within the institutions those politicians are elected to. Politicians are not subject matter experts on everything governance must touch upon; most are not subject matter experts in any of them. Their main skill is coalition building, both among the electorate and among other professional politicians.
The average voter is neither a subject matter expert nor do they have access to well paid staffs that are. They should not, therefore, be writing statutes or (heaven forbid, as in the California case) constitutional amendments, nor choosing them directly. They should have the means to punish politicians that allow the government (the machinery of which extends tremendously beyond those operated directly by politicians) to steamroll their interests and their values, and to reward those who they feel have properly looked after them. It’s up to politicians, and their staff, to square the value pluralism of the electorate with good governance and good law.
There’s a nascent theory of when to be more or less independent of electoral mechanisms in the piece, but of course there’s only so much ground I can cover in ~1800 words. Nevertheless, between the paper and the piece, I’m feeling much more comfortable with my sense of what rule of law means in practice, and what job it is we ought to be expecting judges to do.
On the horizon is a review of Reorganizing Government, a phenomenal book that was practically designed for a project like mine. I am also in the middle of State Capture, which I intend to review as well. The latter covers the mechanics of the American Legislative Exchange Council (ALEC) in some detail, something I had been looking for as a good angle on interest group politics in practice. After State Capture I will move on to Joseph Heath’s new book on the place of the administrative state within a liberal democracy.
Right now I’m becoming increasingly comfortable applying the foundation of knowledge I have built to pieces with fairly focused topics, as I continue to invest in that foundation further. The biggest failure mode I encounter in writing is when I attempt to go off into laundry-list (“LARPy”) wonk land. It is much better to get at the heart of the matter and discuss a few good options rather than attempt to cover everything, and in doing so, convey nothing. What pleased me about the recent Liberal Currents article is that I managed to gesture at a number of things (like proportional voting) but keep it in the realm of passing comments without getting bogged down. This is the line I will need to get better at walking.
That’s all I’ve got for now. I hope you all are surviving 2020 as well as you can.