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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Democracy As Collective Action
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Wednesday, September 04, 2024
Democracy As Collective Action
Guest Blogger
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024) Guy-Uriel Charles Neil Siegel’s The Collective Action Constitution is an important book for scholars of law and democracy. Admittedly, The Collective Action Constitution is broadly about constitutional interpretation and not about the law of democracy. However, understanding the Constitution through the telos of resolving collective action problems demonstrates the utility of Neil’s book outside his target area. Commendably, Neil does not ignore democracy, though understandably, most of what he has to say is relatively short and comes toward the end of the book. In what follows, I’m interested in highlighting The Collective Action Constitution’s contribution to law and democracy. Self-Government as Collective Action Scholars of law and democracy should be strongly interested in a book that sees solving collective action problems as one of the Constitution’s core principles. One might argue that the utility and effectiveness of a system of government rests in its ability to solve collective action problems. Representative democracy, like all systems of government, can hinder or facilitate collective action. One way of evaluating a system of government is based on how well it solves the problem of its citizens. Moreover, there is, perhaps, no greater and more challenging collective endeavor than the enterprise of self-government. Representative democracy requires a lot of coordination and cooperation by a myriad of institutions and individuals. Citizens are best able to impact their polity through collective action. Indeed, one might argue that politics are not possible without collective action. Thus, a constitution that has as one of its main purposes the removal of barriers to collective action in the pursuit of self-government should be of great importance to those whose primary subject of inquiry is understanding the structural barriers to developing a well-functioning system of government. Moreover, the aims of representative democracy should have significant implications for how we understand the Constitution. The Constitution on Democracy Ironically, the Constitution has too little to say about democratic self-governance, and much of what it has to say seems to allocate power—at least a significant first-mover advantage—to the states. As Sam Issacharoff and Rick Pildes once pointed out with their characteristic insight, the Constitution is generally silent on important matters of representative democracy, and where it is not silent, the text “reflects the pre-modern world of democratic practice and the long-since rejected assumptions of that world on which the Constitution rests.” If there is one area in which the Constitution is inutile, if not dangerously outmoded, it is in the area of democratic practice. For example, the Constitution says nothing about political parties, which are indispensable institutions in a modern democracy for collective action. Indeed, the Framers were disdainful of parties, which they saw as factions. Consequently, political parties, the lifeblood of advanced democracies, are dependent upon the whims of the states and the Court for their shape and content. Additionally, the Constitution of one of the world’s most vibrant democracies does not guarantee a positive right to vote for federal offices. This is a tremendous oddity, to put it mildly. At best, by linking voter qualifications in federal elections to those of the state in which the voter resides, the Constitution implies a federal constitutional right to vote for members of Congress. Article 1 § 2 and the Seventeenth Amendment dictate that voter qualifications for the House and the Senate, respectively, will depend on each state's qualifications for its largest house. This arrangement makes the states the most important actors in this domain and creates variation instead of uniformity for what should be a national legislature. Similarly, the Elections Clause makes the states—and perilously substate entities—the primary actors in the administration of federal elections, though it also provides Congress residual and supervisory authority. It is true that subsequent amendments to the original constitution remove certain criteria from the discretion of the states and transfer power to Congress to enforce these prohibitions. Specifically, the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendment forbids the states from conditioning eligibility based on race, gender, the failure to pay a poll tax, and age, respectively. However, these amendments are the exception that proves the rule: the states set voter qualifications in federal elections, except where explicitly prohibited by the Constitution. The states also administer federal elections, with the possibility of federal oversight looming in the shadows. Fundamentally, the practice of democracy is predominantly, though not exclusively, a creature of state regulation. Siegel on Democracy If solving collective action problems is the best way of making sense of the Constitution, what should we make of the fact that the Constitution has little to say about representative democracy? Neil’s book brilliantly engages almost all areas of constitutional law, including the law of democracy. Most of what Neil has to say about democracy is in Chapter 9 of the book. An important purpose of the chapter is to demonstrate how “a collective-action theory of the Constitution can help account for many constitutional rights that protect the integrity of the democratic process at both the state and national levels.” (356) Neil discusses several constitutional provisions in this chapter but he anchors the chapter's discussion about representation largely in the Guarantee Clause of Article IV, § 4, which provides: “The United States shall guarantee to every State in this Union a Republican Form of Government . . . .” Neil makes three distinctive contributions in this chapter: one about individual rights, one about structure, and one about “democratic process rights.” I find the individual rights and structural contribution extremely useful but limited. I found the “democratic process rights” contribution insightful and wanted more. For Neil, the Guarantee Clause, like many constitutional provisions, “serve[s] dual purposes,” an individual rights purpose by “protect[ing] the individuals who invoke them,” and a structural purpose by “prevent[ing] the states from causing collective action problems.” (357). On the individual rights side, the Guarantee Clause implicitly grants United States citizens who are residents of states the right to vote for state legislative offices. The Guarantee Clause “expresses a commitment to individual rights against one’s own state by championing popular sovereignty, or government by the people.” (364). On the structural side, Neil borrows from civil liberties lawyer Daniel Korobkin and Yale Law Professor Akhil Ahmar to argue that representative government in the states protects sister states from the threat of authoritarianism posed by non-representative states. Non-representative states “are likely to impose negative externalities on neighboring states, including by invading them or encouraging violent disturbances within them. These actions impose very high costs, whether measured in terms of lives lost or money spent, and so cause a cost-benefit collective-action problem.” (366). However, the Guarantee Clause also protects the federal government, in addition to the states. Because the states set voter qualifications for federal elections, Neil argues that “democratically-illegitimate state governments will undermine the legitimacy of federal actions, including solutions to collective-action problems that Congress imposes after concluding, amid disagreements among states, that such problems exist and warrant a regulatory response.” These interpretations of the Guarantee Clause make sense to me. But, I do find them a bit limiting. As a safety valve, it is important that states remain broadly representative, and no one wants one state invading another. But these interpretations do not help us resolve the vast majority of issues of questions raised by our representative democracy, such as whether our political parties are committed to representative democracy, or whether oligarchs control our politics, or whether local officials will certify the results of a federal election. However, Neil suggests a more robust utility of a theory of collective action for law and democracy. Neil argues that one can derive a conception of political rights, what he calls “democratic process rights,” (388), from the theory of the collective-action constitution. These include “free political speech, expression, and association, a free press, peaceful assembly, a right to petition the government for redress of grievances, voting rights, the apportionment principle of one-person, one-vote, and, arguably protection from extreme partisan gerrymanders.” (388). Neil justifies these and other rights on the ground that they “encompass[] rights that help secure the integrity of the democratic process at the state and federal level.” (388). I think the implications of Neil’s theory are more forceful than he lets on. A collective-action constitution should be interpreted to address the pathologies of representative democracy and ensure its ability to solve the fundamental problems of its citizens. When one combines Neil’s indispensable and penetrating insight that our Constitution is best understood—structurally, descriptively, and pragmatically—as a framework document for addressing each generation's collective action problems with the aims and purposes of representative democracy, the implications for the field of law and democracy are significant. For example, Neil provides a different way of bemoaning the Court’s lamentable decision in Shelby County v. Holder. However, the possibilities of the collective-action constitutionalism theory are not limited to judicial interpretation. Instead, the challenge can be directed to the demos. What responsibility does Congress have for protecting democracy against its current challenges? What is our responsibility as citizens? Neil’s theory compels the demos to reorient our approach to the Constitution to make it consistent with one of its fundamental purposes. Guy-Uriel Charles is the Charles
Ogletree Jr. Professor of Law at Harvard Law School. You can reach him by email
at gcharles@law.harvard.edu. Posted 9:30 AM by Guest Blogger [link]
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |