an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The stunning Brexit vote showed all too
clearly a chasm between elite and mass opinion, something that has always
fascinated me, at least when it comes to democracies. How do such splits happen in political systems
that have regular and fair elections? Or
better, when they happen, why are they not corrected over time by the election
of new elites? In my armchair
estimation, Britain is more vulnerable to such splits than most because its
elite is so homogeneous. But then again,
America seems to be suffering from its own version of this split.
Surely the version of such a split most
dangerous to a political and constitutional order is when elites in both
parties (in a two party democracy) are alienated from mass opinion. Who favored NAFTA? The presidential wing of the Democratic party
and both wings of the Republican. Who
favored looser rather than stricter controls on immigration? Elites in both parties. And who was responsible for bailing out the
banks after the fall 2008 financial crisis?
All elites, although the congressional wing of both parties ran for
cover in 2009. This avoidance of
responsibility and the terrible failure of political elites to justify the
bailout measures helped produce the toxic environment in which the Tea Party
flourished. In many ways, the political
aftermath of the financial crisis is still with us. When both
parties fail (and do not admit it!), American democracy does not have a way
To continue these somewhat fragmentary
thoughts, these splits do not necessarily pose a danger if the resulting
policies deliver strong economic growth that is reasonably well distributed. That hasn’t been happening lately. But I think shorter-term causes are more responsible
for our present difficulties. Elites
have to avoid making major mistakes, what I term “policy disasters” in my book Broken Trust(look to the right!). Policy disasters bring the competence of the
entire government into question and so have the potential to reduce trust in
government. And without trust the masses
can, well, not revolt but decide to take a hike off the beaten track.
In the UK (and western states like
California), the mass public has an outlet for their frustrations, especially with
legislative elites – the mechanisms of direct democracy such as the referendum
and the initiative. But the US has no
such outlet on the national scale – maybe lucky for us, right? Or maybe not.
Because the frustration with elites so evident in the Brexit vote are
right there in the US for all to see – just not in the context of a one-off
referendum. Instead, an entire political
party is now hostage to a populist demagogue who horrifies its
As a lawyer, I was trained to value the
Madisonian representative democracy we have at the national level which
deliberately denies the mass public a direct voice in policy. As an academic who tries to train a skeptical
eye on what lawyers think they know, I have my doubts about the elitist
assumptions of Madisonian democracy.
What I have called the “populist” (I do not mean late nineteenth century
populism) strain in American politics after the early republic runs against the
premises of Madisonian democracy. It is
more participatory and anti-elitist, especially anti-expert. The organization of state governments and
their constitutions displays a corresponding alteration of the framers’
handiwork. If you are skeptical in turn of
the populist strain, as many lawyers are, current events are a major warning
that the Madisonian system is not self-correcting as advertised. It requires maintenance and our active
engagement. We must use our own judgment
based on the entirety of American history, our own “reflection and choice” in
Hamilton’s phrase, to guide our nation (and the world!) into safer waters. Whether it succeeds or fails, Trump’s
candidacy should not lead to a simple reaffirmation of the Constitution but a
renewed dedication, similar to that in the progressive era, to the fundamental
political and constitutional reform of our basic institutions. And many different analyses (Howell and Moe’s
Relicis the most recent and useful)
point to the organization and performance of Congress as the chief culprit. Congressional reform should be a chief focus
of Hillary Clinton’s campaign – a way to demonstrate to the public that she
gets it and that business will not be usual in Washington if she is elected.
The story told until recent years about the "unwritten" British Constitution was a charming paradox. On the one hand, the lack of a written Constitution there meant that the law could adapt much more easily to crises or changing circumstances. Nonetheless, this constitution was remarkably stable and rights were well-protected because respect for precedent and tradition was deeply entrenched among elites and voters.
Not any more. Since the 1990s, Britain has embarked on a series of constitutional experiments unlike those in any other Western democracy. There was the end of hereditary peers in the House of Lords, the creation of regional parliaments in Scotland and Wales, the establishment of a Supreme Court to replace the House of Lords as the leading judicial authority, a referendum on Scottish independence, the end of discretion for the Prime Minister in calling general elections, and more. Now we have the Brexit referendum (and soon, perhaps, another Scottish independence referendum), which will have far-reaching implications for domestic law and for the continuation of the United Kingdom.
Whether this was a good idea or not remains to be seen, but you can't say that Britain's Constitution is, to use Sandy's term, "undemocratic." If by democratic, you mean majoritarian. The only exception is the Queen, who seems to be the last refuge of the old-fashioned. Posted
by Gerard N. Magliocca [link]
Thursday, June 23, 2016
Another June Surprise: Justice Kennedy Upholds Race-Conscious Admissions in Fisher
Confounding those who expected the Roberts Court to deliver
a blow to the use of race in university admissions, Justice Anthony Kennedy
today authored a 4-3 opinion
in Fisher v. University of Texas at
Austin upholding the constitutionality of the University of Texas’ modest
use of race as one factor among many in choosing a diverse student body.In line with Justice Kennedy’s surprising 5-4
opinion last term interpreting the Fair Housing Act to provide for disparate
impact liability as a way of breaking down unconscious racial prejudices, Kennedy’s
opinion is a resounding reaffirmation that the government may use race
sensitively to help foster diversity and ensure equality of opportunity for all,
regardless of race.The Framers of the
Fourteenth Amendment were the originators
of affirmative action, and today’s ruling is consonant with their
understanding of the text, history, and purpose of the Equal Protection Clause.
Today’s decision was the second time the Court has ruled in Fisher.Three years ago, in Fisher
I, Justice Kennedy wrote that enrolling a diverse student body
“promotes-cross-racial understanding, helps to break down racial stereotypes,
and enables students to better understand persons of different races.”Kennedy’s opinion today in Fisher II followed these precepts, upholding
the University’s modest use of race under strict scrutiny, finding that the
University had employed race minimally and only after finding “consistent
stagnation in terms of the percentage of minority students enrolling at the
University,” reports that minority students “experienced feelings of loneliness
and isolation,” and data showing that “only 21 percent of undergraduate classes
with five or more students in them had more than one African-American student
In a strongly worded dissent, Justice Samuel Alito
castigated the University’s policy as “affirmative action gone wild” and
accused the majority of abandoning strict scrutiny.But, as Justice Kennedy’s opinion explained,
“[c]onsiderable deference is owed to a university in defining those intangible characteristics,
like student body diversity, that are central to its identity and educational
mission”and the University had acted
sensitively—only after race neutral methods proved ineffective—“to reconcile
the pursuit of diversity with the constitutional promise of equal treatment and
dignity.”This is in line with the
Supreme Court’s precedents applying strict scrutiny since Bakke.
Strikingly, Justice Kennedy recognized that percentage
plans—like the Top Ten Percent plan employed in Texas—are no substitute for
race-conscious admissions policies that help ensure meaningful diversity,
quoting at length from Justice Ruth Bader Ginsburg’s Fisher I dissent: “Percentage plans are ‘adopted with racially
segregated neighborhoods and schools front and center stage.It is race consciousness, not blindness to
race, that drives such plans.’”Hence,
Kennedy wrote today, Fisher “cannot assert simply that increasing the
University’s reliance on a percentage plan would make its admissions policy
more race neutral.”One of the most
unexpected—and welcome—aspects of Fisher
II is Kennedy’s full-throated reliance on these key points made by Justice
Fisher II marks
the first time that Justice Kennedy has voted to uphold an affirmative action
program against constitutional attack.Many
observers today are asking: what’s
changed?But Kennedy has always
accepted the basic principle—first established by the Court in Bakke and reaffirmed today—that
universities may use race in admissions as one factor among many in choosing a
diverse student body.In 2007, in the Parents Involved case, Kennedy rejected
Chief Justice Roberts’s absolutist view that “the way to stop discrimination on
the basis of race is to stop discriminating on the basis of race,” insisting
that was “too dismissive of the interest government has in ensuring all people
have equal opportunity regardless of their race.”
Last term, in Texas
Department of Housing v. Inclusive Communities Project, Kennedy authored a
5-4 opinion that, like today’s ruling in Fisher
II, was joined by the Court’s liberals, and castigated in a sharp dissent
by Justice Alito as impermissibly race conscious.Refusing to gut the Fair Housing Act, Kennedy
gave the Act a broad reading, noting that “much progress remains in our
nation’s continuing struggle against racial isolation” and that disparate
impact liability can help break down “covert and illicit stereotyping” that
stand in the way of equal opportunity.These same concerns about racial isolation and stereotyping—more
important than ever in the wake of events in Ferguson and elsewhere—are at the
fore of Kennedy’s Fisher II
Both Justice Thomas and Justice Alito filed dissenting
opinions accusing the majority of abandoning their obligation to enforce the
constitutional guarantee of equal protection.But neither made any effort to come to grips with the text and history
of the Fourteenth Amendment.Far from
establishing a constitutional ban on the sensitive use of race by the
government—the view espoused by Thomas, Alito, and Chief Justice John
Roberts—the Framers of the Fourteenth Amendment rejected proposals to prohibit
any and all use of racial classifications by the government and, in fact,
enacted a long list of forward-looking race-conscious legislation intended to
ensure equality of opportunity for all persons regardless of race.Conservative Supreme Court Justices opposed
to the use of race to foster equality have never been able to answer this
history.Indeed, as Josh Blackman
recently noted, there has never been any convincing originalist
rebuttal to the fact that the Framers of the Fourteenth Amendment were the
originators of affirmative action.The
Court’s decision in Fisher II moves
the law more in line with constitutional text and history.
Blum—who financed and spearheaded the Fisher case—hoped to establish a
precedent to gut affirmative action across the nation and force universities to
abandon policies that, for decades, have helped ensure equal opportunities for
all regardless of race.Today’s ruling
dashes Blum’s hopes of rewriting the Fourteenth Amendment to strike down efforts
to ensure true racial diversity on our nation’s campuses.Fisher
II makes clear that universities may act to further our Constitution’s
promise of equality.
David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This piece is cross-posted at Text and History.
Brigham Young University are launching a 100 million word corpus of general
Founding-era English, which it has named “COFEA.”BYU is the home of the leading American corpora
of this sort, which are used principally in linguistic research.Existing corpora of general English include
the Corpus of Contemporary American English (“COCA,” 1990-present), and the
Corpus of Historical English (“COHA,” 1820-1989).
A recent essay
in the Yale Law Journal Forum by
Associate Chief Justice Thomas Lee of the Supreme Court of Utah and his two law
clerks (James C. Phillips and Danial M. Ortner) introduces the project as a
potentially useful tool in the area of “public meaning originalism,” sometimes
called “the new originalism.”(essay here).My response published in the same journal, while fully supporting the
publication of the corpus, expresses some skepticism on the extent to which it
will provide data that will significantly enhance the objectivity of
originalist research (response here).Recently, BYU’s J. Reuben Clark Law School held a conference to discuss
the role that corpus linguistics may play in legal interpretation.More such events are planned.
which both sides recognize, is the extent and nature of interpretive decisions
that must be made after consulting
the corpus.Having a corpus of English
from the founding-era is akin to having access to all of the file cards amassed
by a lexicographer of the time, assuming the lexicographer to have accumulated
large numbers of examples of the words that the dictionary will define.Sometimes that information will be
sufficiently uniform to tell future generations how a word was understood at
the time and what those who ratified the Constitution likely had in mind when
they voted.At other times, though, the
corpus will reveal a range of meanings for a word, some closely related, some
seemingly distant from one another.Whether
one chooses the “ordinary,” prototypical meaning of a term, or a more expansive
sense of that word’s meaning for purposes of constitutional analysis is not a
neutral decision.For example, how much
attention should courts pay to the statistical distribution of “keep and bare
arms” over military and non-military contexts?Such decisions are not linguistic.They are, rather, legal or political.
looks at the word abstractly, or attempts to incorporate within its meaning
examples of what real-world things or events were thought to instantiate the
word at the time creates a second sort of unavoidable decision.Debates over “cruel and unusual punishments”
continue more than two centuries into our history in the context of the death
important article by Stephen Mouritsen (here) demonstrates, corpus linguistics
can aid in the interpretation of statutes, especially when the issue at hand is
the most prominent usage of a word of ordinary English.At least when it comes to the contemporary
laws, reviewing a corpus of general English appears to be a much more promising
practice for learning about ordinary usage than does the current judicial trend
of arguing about which dictionary best captures the word’s ordinary sense.One reason for this is that the interpretive
issues in play in most difficult statutory cases are more subtle than those on
which the lexicographer is likely to focus in drafting a definition for broad,
general usage.No doubt even in contemporary
cases the corpus will not always yield an answer any more certain than the result
that comes from the battle over the dictionaries. But sometimes it will, and
sometimes is a lot better than never when it comes to determining whether a
pre-determined legal standard (ordinary meaning of statutory words) has been
not one practices “original public meaning originalism” as a method of
constitutional interpretation, constitutional analysts of all intellectual and
political stripes pay at least some attention to how constitutional language
was understood in the eighteenth century.At the very least, having more information about this understanding
should help to focus debate by providing information about the interpretive
choices at the time of the founding.
Samuel Alito Channels Charles Beard (and maybe Sandy Levinson)
When excerpting Evenwel
v. Abbott for Gillman, Graber and Whittington, American Constitutionalism (second edition should be out
imminently), I was struck by Samuel Alito’s comment that “power politics, not
democratic theory . . . carried the day” when the original and Reconstruction
framers determined the rules for staffing the national legislature. This is the thesis of
Charles Beard’s, An Economic Interpretation of the Constitution of the United States, which argues that the framing is
best conceptualized as the victory of particular interest groups rather than as
the realization of certain fundamental principles. Beard made his claims about power politics at the
framing to discredit the framers and originalism. My friend Sandy Levinson, who should be
dancing in the streets after Alito’s comments, makes similar observations when repeatedly insisting that only a lunatic could support government by a constitution rooted
in the peculiar conditions of late eighteenth century and mid-nineteenth
century politics that have limited, if not perverse, relevance for political
conditions in the first decades of the twenty-first century. The puzzle is how Alito, a notorious
originalist (at least when originalism can be adjusted to support very conservative
policy positions) continues to insist that Americans remain normative bound by the
original commitments of framers he thinks were motivated primarily by desires
for political ascendancy and hardly at all by timeless ideals that might
inspire future generations
Clouds Over the Project of Liberal Constitutionalism? --- III
Why might people look for "interaction" accounts of changes proposed or adopted by authoritarian populists? Here's my political/ideological account: The critics believe that the changes, while individually reasonable, are badly motivated, but are unwilling to rest their criticisms entirely on the ground of bad motivation (or, more politically, on the ground that the critics know that the proponents are proto-fascists). The reason for that reluctance is the sense that claims about motivation are too easily rejected, and that openly political claims come down to saying, "I'm right and you're wrong." The interaction accounts purport to substitute politically and analytically neutral reasons for what are (in my view) political disagreements (in which, I perhaps should make specific, I am on the side of the critics of the proposals).
Or, to revert to an older tradition ("the politics of law"), purportedly neutral accounts are actually political (and there's nothing wrong with that).
Clouds Over the Project of Liberal Constitutionalism? -- II
Suppose, as I argue, none of the proposed policies said to threaten liberal constitutionalism actually fall outside the range of reasonable specifications of the principles that define liberal constitutionalism. How could their adoption nonetheless be a threat?
One reasonably obvious possibility is that, though each change individually is compatible with liberal principles, somehow they interact in ways that produce threats to liberal constitutionalism. (Adrian Vermeule's discussion of "constitution as system" is sensitive to these interaction effects.) An example would be a change in libel law making recovery for defamation of public figures easier, coupled with the assignment of fact-finding to judges whose tenure is simultaneously changed from life-time to medium-term renewable. That combination would probably make it easier for a president to intimidate newspapers who might otherwise publish critical stories (though there's no guarantee).
One problem with the "interaction" account is that there will (often? always?) be a mismatch between one or more of the changes said to produce troubling interactions. Consider the example in the preceding paragraph. One can imagine the change in judicial tenure being embodied in constitutional language, but it's quite unlikely that the "libel" specification would be so embodied. Rather, it would be embodied in a statute, or in judicial interpretation of some general provision[s] (free expression, individual dignity). So, it seems to me, it's hard to get a normative handle on what exactly goes wrong when two changes -- one embodied in a constitution's language, the other not -- interact.
Maybe I'm wrong about that, though, and the "interaction" account does show how individually reasonable changes can, when aggregated, be a real threat to liberal constitutionalism. But, as I've suggested, making the account work requires spelling out how the interactions would work. And, looking at the Hungarian and Polish examples (and at what Trump has said, to the extent that one can tease specific proposals out of his statements), its not clear to me that one could spell out the interactions. Mostly, the proposals seem to me a grab bag of things that annoy the authoritarian-populists (to adopt a useful correction from the comments).
The next post will conclude with some reflections on the reasons some might want to look for something like an "interaction" account.
Clouds Over the Project of Liberal Constitutionalism? - I
At a comparative constitutional law conference -- but also on the basis of reflecting on the newspapers -- it's easy to pick up notes of concern about threats to liberal constitutionalism. The obvious candidates are Hungary, Poland, the United States (with the candidacy of Trump), and various other European nations where right-leaning populism seems increasingly, well, popular.
Often the programs of these movements are said to threaten the project of liberal constitutionalism. But, as my earlier post on the rule of law suggested, pinning down what the threats are is sometimes tricky.
Consider Donald Trump's mention of the possibility that U.S. libel law should be changed to make it easier for public figures to recover damages. Suppose that is given concrete form as advocacy for the rule that public figures can recover actual damages to their reputation for false statements about them when those statements were made negligently. (You can tweak the proposal in various ways, for example by saying that it should be more difficult to find negligence for amateur journalists/bloggers than for newspapers and other media that are more fully staffed, but the details rally don't matter for my argument.) Whatever the merits of that position as an interpretation of the First Amendment (which is to say, whatever its relation to existing Supreme Court doctrine). One might reasonably think that current US doctrine places too much weight on the ability of people to make irresponsible statements, too little on real harms to reputation. I confess it quite difficult to see in such a rule a deep threat to liberal constitutionalism. It is, after all, something rather like a rule followed in many clearly liberal polities (and there's no obvious reason rooted in a distinctive US culture to think that the proposed rule would do more damage to liberal constitutionalism in the United States than it does elsewhere).
Or, suppose a government were to adopt a statute allowing criminal punishment for disseminating statements (a) that the legislature determines have a reasonable probability of inducing some listeners to engage in serious criminal activity, or (b) that a fact-finder of the usual sort -- a jury, in the United States -- determines has a reasonable probability of, etc. (People familiar with US constitutional doctrine will understand that the first is a Gitlow-like statute, the second a Schenck-like statute, and that slightly different analytic issues arise in connection with each, but those differences too aren't relevant to this discussion.) Again putting aside current US constitutional interpretations, I find it difficult to conclude that such statutes are a deep threat to liberal constitutionalism. The current US doctrine requires the polity to put up with with the dissemination of statements posing a reasonably high risk of inducing others to commit serious crime, mostly because historical experience isn't encouraging. But maybe the current doctrine errs on the side of requiring too high a risk -- or so someone might reasonably think. (The current British prohibition on indirect encouragement of terrorism is, in my view, a statute of the sort I've described.)
The best defenses of the current US doctrines on these two topics rest on empirical judgments about how various institutions like legislatures and juries operate, whether in "normal" times in the libel case or under stress in the political-advocacy case. In my view, those judgments, while probably correct, are clearly open to reasonable contestation (juries might be better than doctrine takes them to be, etc.).
And, it turns out, nearly all of the actual proposals for revision of existing law -- including taking some constitutional issues away from the courts or altering the terms of judicial tenure -- have the same underlying analytical structure. Each one can be defended as a specification of the content of particular liberal constitutionalist norms (in the example, norms about freedom of expression and norms about judicial independence), and -- I think -- the specifications are within the range of reasonable disagreement about what those norms concretely require.
So, if the proposal are in themselves reasonable specifications of liberal constitutionalist norms, how can their adoption be a threat to liberal constitutionalism? More later.
[I've finally figured out how to enable comments,so perhaps some cogent comments will preempt my post-to-come.]
JB: Is there a difference in knowledge or ignorance about
local politics or state level politics as opposed to national politics or
foreign affairs? Does this have any consequences for your argument?
IS: It is difficult to make any definitive comparisons between
the two kinds of knowledge. But it is clear that both are low. That may,
potentially, cut against my argument that people make better-informed decisions
when they vote with their feet between different states and localities, than
when they vote at the ballot box.
But, as I discuss much more fully in Chapter 5, the kind of
knowledge that foot voters need is often different in nature from what is
useful to ballot box voters. For example, the latter need to know which
officials are responsible for which issues, so that they can decide what to
reward and punish them for at the ballot box. By contrast, the former merely
need toknow how well the relevant
jurisdictions are doing on measures they care about (job opportunities,
housing, schools, etc.), without having to apportion credit and blame. On that
score, foot voters have historically done very well, often even under highly
adverse conditions (such as those that faced 19th century immigrants to the US, or
African-Americans fleeing the Jim Crow-era South).
JB: What role do traditional mass media play in causing or ameliorating
political ignorance? What role do the Internet and digital media
play? Do new media ameliorate the problems of political ignorance for
democracies, do they make things worse, or do they just alter what people focus
IS: It is a striking fact that political knowledge levels have
largely stagnated over the last several decades, despite the explosion of new
media. Many people blame the media for political ignorance; if only they did a
better job of covering politics, maybe the voters would know more. In Chapter 7
of the book, I explain why this indictment is largely misplaced.
While the media is far from perfect, the fact remains that
the internet and 24 hour cable news have made it easier than ever before for
people to acquire basic political information. It is also easier than ever to
look up expert analyses of a wide range of public policy issues from
specialists across the political spectrum.
The problem is not that information isn’t available in the
media (and elsewhere), but that most voters are unwilling to devote more than
minimal time and effort to studying it. It is an issue of demand far more than
supply. If there were a strong demand for more “hard news” and objective policy
analysis, the media would be more than happy to provide it, if only out of a
desire to increase their profits.
Though the media is not one of the main causes of political
ignorance, it may make the problem worse in two indirect ways. First, the
internet and social media make it even easier than in the past for people to
isolate themselves from opposing points of view, and only look at news and
opinion sources that reinforce their preexisting biases. I think the situation
in that respect is only modestly worse than in the past, but some scholars are
Second, modern media provide a vast array of entertainment
options that many people understandable find more appealing than following
politics. Why use the internet to read up on entitlement reform or health care
policy when you can instead use it to keep tabs on your favorite movie stars,
or Taylor Swift’s latest paramour?
JB: Do some people benefit more than others from the phenomenon of political
IS: Yes, as discussed in my answer in yesterday's post, some political parties and
ideologies benefit from ignorance more than others. Ignorance also enables some
well-organized interest groups to get away with things that the electorate
might not tolerate if they knew what was going on. Some evidence also suggests
that the disproportionate political power of the wealthy is in part due to
their higher levels of political knowledge.
That said, the most important effects of political ignorance
is not that it enables some people to win more political battles than they
would otherwise, but that it reduces the quality of government and public
policy in ways that harm the vast majority of the public. Even those who win an
occasional political victory thanks to ignorance often lose out in the long
run, because we end up with a poorer and less free societyoverall.
JB: Is this unfair? If so, is there anything we can or
should do about this?
IS: I think it is indeed unjust when political leaders and
interest groups use ignorance to get control of the power of government and use
it in ways that harms other people. As Jason Brennan argues in his excellent
Ethics of Voting, ordinary voters also act unjustly when they cast ballots without making even a modest
effort to become informed about the issues at stake. In the words of John
Stuart Mill, voting is
not just an individual choice, but the exercise of “power over others,”Those who exercise power over others must, at
the very least, do it in a reasonably responsible fashion, which includes
becoming better-informed than most actually are.
There is no easy solution to these problems. But, as I
explain in Chapter 5, the best way to
make significant progress is to limit and decentralize the power of government,
so that we will make more of our decisions by “voting with our feet”in settings wherewe have stronger incentives to become
well-informed. Foot voters have
far betterincentives to acquire
information and use it wisely than ballot box voters do. In Chapter 6, I
argue that the harm caused by political ignorance can also be mitigated by
strong judicial review.
JB: Is political ignorance a more or less permanent characteristic of modern
IS: To a large extent, yes. As I discuss in Chapter 3 of the
book, most of the political ignorance we observe is not the result of stupidity
or lack of information, but of perfectly rational behavior by individual
voters. That is the main reasons why political knowledge has not gone up
significantly, despite increasing education levels and IQ scores, and despite
vastly greateravailability of information.
One of the criticisms most commonly raised against the first
edition is the idea that increased foot voting will exacerbate the “Big Sort”:
the possible tendency of people to cluster in communities of the politically
like-minded. In a famous 2008 book
of the same name, journalist Bill Bishop argues that this trend increases
political polarization and our already severe tendency to ignore or dismiss
opposing points of view. My proposal to expand opportunities for foot voting
could potentially make the situation even worse.
The critics were right to raise this issue. I address it in
three ways in the second edition. First, it turns out that the data do not
support the notion that ideological segregation is increasing. Most
people’smigration preferences do not
actually align closely with conventional Red-Blue politics. Second, even if
increased foot voting didlead to
greater ideological segregation, that might not be a bad thing. It might even
have some beneficial effects, by increasing the overall diversity of our
federal system, and giving potential foot voters a wide range of options.
The new edition of the book also addresses the opposite
concern: the fear that some (particularly conservatives)have that an influx of migrants into their
state will undermine its distinctive political identity because the newcomers’
views diverge from those of current residents. The carpetbaggers might even tip
the political balance against those policies that made the state an attractive
destination for migrants in the first place. I argue that, like the Big Sort,
this sort of fear is also overblown.
Both issues are addressed in detail in Chapter 5 of the
book. I summarized some key points on bothin
this recent post at the Volokh Conspiracy blog.
JB: I expect that people often ask you about the rise of Donald Trump. Does
your analysis help us understand the Trump phenomenon?
IS: Sadly, yes. Almost all of the major themes of Trump’s
campaign involve exploitation of political ignorance: most notably his
positions on immigration restrictions and curbing international trade, and his
claim that we can simultaneously maintain gargantuan spending on entitlements
without any cuts, make massive reductions in taxation, and address our serious fiscal
problems. To take just one example, Trump’s campaign first took off when he
famously claimed that Mexico
is sending us criminals, murderers, and rapists. In reality, social science
studies consistently show that immigrants – including Mexican immigrants – have
a much lower violent crime rate than natives. Survey data indicates that 50% of
Americans (and over 70% of Republicans) don’t realize that, and instead believe
that immigration increases crime.
However, it is important to recognize that Trump’s
exploitation of political ignorance differs more in degree than in kind from
what more conventional politicians do. In the present campaign, Bernie Sanders
has also taken advantage of various types of ignorance with great effectiveness
(including, on trade and government spending, some of the same ones as Trump). President
Obama and more traditional Republicans are also not above using such
I discuss the role of ignorance in the 2016 campaign further
in this recent CNN op
In 1964, the Republican Party made a fateful decision to “go
hunting where the ducks are” in Barry Goldwater’s (in)famous words. Goldwater’s opposition to the Civil Rights
Act of 1964 and that of some of his supporters may have been based on the sincere
libertarian conviction that government should not tell businesses who they must
serve and who they must consider hiring.
Nevertheless, Goldwater and his allies were well aware that the vast
majority of persons who opposed the Civil Rights Act of 1964 and related
measures did so because they supported a racist status quo. The end result was the modern Republican Party, an alliance of
elites and interests who advanced intellectual respectable justifications for
policies that the mass base of the party supported because they buttressed longstanding racial, religious and gender hierarchies. Law review articles providing histories
justifying the right to bear arms be invoked when repealing gun control laws that
interfered with a southern gun culture that partly developed as a means of
controlling persons of color. Justice
Antonin Scalia provided cover for the Republican coalition by repeatedly
insisting that courts could not look at the actual motives underlying
legislative decisions. As long as some
neutral reason existed for not teaching evolution or kicking all persons of
color off a jury, the Supreme Court would not ask whether the best actual
explanation for the policy was the desire to promote Christian or maintain white supremacy.
alliance of business, true believers and racists required some delicate
managing. On the one hand, Republicans
could hardly inform the many upper-class women in their coalition that they
should be at home caring for their husbands and children. Many affluent
Republicans who favored deregulation sincerely abhor crude racist language and practices. On the other hand, Republicans had to signal
to much of their mass base that, outside of practices broadly recognized as
beyond the pale, the party was not going to do much to undermine existing racial,
gender and religious hierarchies. On the
other hand, again, these signals could not be so blatant as to make it obvious
that a significant percentage of the Republican Party was being moved by
bigotry rather than, as Republicans liked to tout, by commitments to limited
government, family values, and the like. Country-club Republicans needed to convince others and themselves that they were not merely providing a veneer of respectability for the most bigoted forces in American politics.
Trump’s success in gaining the Republican Party’s nomination for the presidency
stripped the veneer off of Republican respectability. Trump demonstrated that a substantial proportion
of the Republican electorate was motivated by desires to keep persons of color,
women, and non-Judeo-Christians in their place. Those Republicans
preferred a candidate who “told it like it is” to candidates who used such phrases as “limited government,” “right to life,” and “the rights of small businesses” which could be interpreted one way by the more elite wing of the party and a different way by the mass base. In short, what Trump exposes is that, whatever the personal beliefs of the Romneys, Bushes, and Kasichs of the world, they have been leading a deeply racist coalition.
observations explain why the drive to have mainstream Republicans repudiate
Trump is besides the point. The real
issue is will Republicans repudiate Trump supporters and no longer hunt where those ducks are. The answer seems already clear. Trump is to be repudiated only because he speaks too directly and not because he is mobilizing the most bigoted forces in American politics. Republicans want to mobilize those forces as well. They have been doing so for years. But Republican political operatives want the more respectable forces in the party to lead the crusade through language that will, without making the direct bigoted appeals that turn off more
affluent Republicans supporters, again signal an unwillingness to challenge existing
status hierarchies. Should this happen, the repudiation of Donald Trump will have no lasting significance. A political culture
in which a quarter to a third of the electorate is moved by race, gender and religious prejudice is a
political culture headed towards a train wreck, regardless of the Supreme Court and regardless of the Constitution.
This is part one of a two-part interview. Part Two will appear tomorrow.
JB: Why did you decide to do a second edition of your book?
IS: It is rare for an academic book to get a second edition, and
rarer still for it to happen just three years after the first edition. But I
thought a second edition was justified for several reasons.
Another factor in my decision was the widespread interest in
the subject of public ignorance that has arisen in the United States
and indeed around the world over the last few years. To my surprise, the book
was mentioned and discussed media as far afield as Indonesia
and the Philippines.
Democracy and Political Ignorance has
even been translated into Italian and Japanese. That’s far less a reflection on
me than an indication of the significance of the book’s subject. There is
growing recognition that public ignorance is a major challenge for modern
democracy, and that it is not limited to any one nation, to the supporters of
one party, or to one discrete set of political issues.
I addressed my reasons for writing a second edition in
greater detail here.
JB: Could you explain what is distinctive about political ignorance as opposed
to other kinds of ignorance? What are some of the consequences of that
distinction? How, if at all, is political ignorance related to people's
knowledge of other subjects closer to their lives?
IS: In some ways, political ignorance is just like any other
kind of ignorance. None of us can learn more than a tiny fraction of the
information out there. We must inevitably pick and choose. We are, in that,
sense all rationally ignorant about the vast majority of subjects.
The difference between political ignorance and most other types of ignorance
is the way in which rational ignorance by individuals leads to bad collective
outcomes. Because there is so little chance that any one vote will affect the
result of an election, it makes sense for any given voter to devote little or
no time to studying political issues. The chance that his or her ignorance will
make a difference is infinitesimally small. But when an entire electorate (or a
large part of it) acts that way, we end
up with a largely ignorant public, and a political system where public policy
is heavily influenced by that ignorance.
In addition to doing a poor job of acquiring information,
most voters also do a poor job of evaluating the limited information they do
learn. Instead of acting as objective truth-seekers, they routinely act as “political fans”
– overvaluing anything that reinforces their preexisting views and downplaying
or ignoring anything that cuts the other way.
It’s not just that public ignorance might help the “wrong”
side win an election. It’s that all the
major-party options before us are worse than they might otherwise be, because
politicians know that they must cater to a largely ignorant electorate in order
Political ignorance is similar to pollution. Individuals
have little incentive to refrain from polluting, because emissions from any one
car make only an infinitesimal difference; the collective impact of
gas-guzzlers, however, can inflict great harm on the environment. In the same
way, widespread public ignorance pollutes our political environment, even though
the ignorance of any one voter matters very little.
JB: How does political ignorance affect our standard conceptions of democracy?
IS: In Chapter 2 of the book, I go through several widely
accepted normative theories of democratic political participation. As I
explain, all of them have implicit knowledge prerequisites that voters need to
meet in order for the system to function in the way the theory suggests. Sadly,
the actual knowledge levels of voters fall well short of the requirements of
even the less-demanding theories.
It is not a great surprise that voters don’t do well by the
standards of, say, deliberative democracy – a theory that asks a great deal of
citizens. But it’s notable that they also fall short of the prerequisites
ofwhat most people think of as
relatively undemanding alternatives, such as “retrospective voting,” a theory
that says voters need only have enough knowledge to punish incumbents at the
ballot box if their performance in office is poor. It turns out that ignorance
often leads us to reward and punish incumbents for things they did not cause
(such as short-term economic trends, droughts, and even victories by local
sports teams), while letting them off the hook for some issues that they have
more control of.
JB: What are the most important public policy consequences of the current degree
of political ignorance in the United
IS: Survey data suggests that more knowledgeable voters have
systematically different views from more ignorant ones, even after controlling
for a wide range of other characteristics (race, gender, income, occupation, partisan
affiliation, etc.). On most issues, they are more economically conservative and
more socially liberal – though I hasten to add that does not mean most are
anywhere near as libertarian as I am. It is also worth noting that decades of
survey data indicates that more knowledgeable voters are less xenophobic and
more tolerant of racial, ethnic, and religious minorities, and of gays and
Overall, the forces that benefit most from political
ignorance are right-wing nationalists who combine xenophobia with support for a
large welfare and regulatory state: people like Donald Trump in the US, the
National Front in France, and others. However, conventional right- and
left-wing parties also often effectively exploit political ignorance, in
There is a lot of low-hanging fruit like this in public
policy, which political ignorance makes it hard for us to pick.
In fairness, I should note that there are rare cases where political ignorance
actually has beneficial effects; I discuss some in Chapter 2. But such
situations are very much the exception rather than the rule.
Having just returned from a trip abroad that included time in Portugal, the UK, and Israel, my thoughts have very much been directed to the decline of empires. June 23, of course, will see the vote on Brixet, which has the potential to doom both the United Kingdom (since Scotland would almost certainly exit from the UK should the UK exit from Europe) and the European project that took hold following the devastation of World War II (itself a product of the lunacy of World War I). My wife and I went back to the British Museum, where my favorite exhibit continues to be the monumental Assyrian sculpture of a thoroughly dead empire, even if more visitors are undoubtedly drawn to the Elgin Marbles and its memorialization of the defunct Athenian polity. The entire Middle East, of course, is a continuing saga of the rise and fall of empires (including the Sykes-Picot division of the World War I spoils that is becoming unravelled in every way). So, obviously, the question is whether the American empire is "exceptional," destined to remain in full vigor even as the general story is one of decline and fall. Mark Tushnet has offered a melancholy posting about the survival of constitutionalism in the US should Donald Trump--accurately described by Meg Whitman as a would-be Mussolini (though without Mussolini's rootedness in genuine ideological debate).
I continue to wonder how or why the losers of the upcoming election will accept the verdict, given that the only thing we're going to hear over the next five months is savagely personal criticism of the two leading candidates. Donald Trump must be exposed, every single day, without hesitation, as the utter fraud and menace that he constitutes. It is not fair to say that that election of 1800 was also vituperative, since even their opponents had to concede that Thomas Jefferson and John Adams were men of substance and intelligence, even if, say, many regarded Jefferson as the anti-Christ. (This is why Hamilton chose Jefferson over the man without principles, Aaron Burr.)
No doubt Trump will respond in kind to Hillary Clinton, since, among other things, he is intellectually unable to participate in a serious policy debate that requires actual knowledge and not merely fascistic bluster. And, of course, given the vagaries (actually a euphemism for "indefensible features") of the American political system, where political hacks are in charge of the election process, it remains conceivable, e.g., that Trump will win North Carolina, Wisconsin, or even Ohio because of the blatantly partisan voter suppression presided over by rabidly Republican secretaries of state or other election officials. (If you won't believe me, then read Richard Posner's great opinion in Walker v. Frank,, dissenting alas, about Wisconsin's efforts re voter suppression.) No doubt Donald Trump will complain about various features of the electoral process, but there is no serious argument--i.e., none whatsoever--that Democratic political officials are trying to prevent Republicans from voting.
I note with interest that Doug Bandow, of the Cato Institute, is advocating secession and, therefore, the breaking up of the United States.. Will the "mystic chords of memory" be enough to keep Pacifica or Cascadia (or, for that matter, Texas and lower Dixie) in the Union if, from their perspective, an utter scoundrel is elected President? Why exactly should those chords continue to resonate. Who would have imagined 30 years ago the breakup of the Union of Soviet Socialist Republics or, even five years ago, of the United Kingdom? Why is the U.S. necessarily exempt from the "disruptions" that are endemic in the international political order these days?
Even if the UK survives, no one expects the Remains to win a truly resounding victory. Indeed, I heard an interesting talk at Oxford suggesting that the worst outcome would be a narrow victory for Remain where the marginal votes for victory are provided by Scots against the fairly strong desire of "the English" to leave the EU. The "Leavers" are being driven very much by "Little England" nationalism, and one wonders if UKIP and the Euroskeptics among the Tory party would quietly accept the verdict, especially if it turns out, as it is likely, that the promises made to David Cameron by worried heads of other governments are totally unenforceable, as a matter of European law, and also serve to promote similar pleas for special treatment by the completely unattractive Hungarian and Polish governments, among others.
This really and truly may be the most important election in our lifetimes if, as I fear, it will call into question basic issues of political stability within the US. We really are looking more and more like Weimar in the late 20s, where parliament is basically beneath contempt because of an inability to respond to the challenges facing the country, and the political parties increasingly view their opposition as Schmittian enemies to be crushed--which is certainly the way I view Donald Trump and the craven Republicans who are giving up any sense of personal honor by endorsing him--rather than fellow participants in a system of respectful political dialogue and elections to resolve basic controversies.
Do you really think it can't happen here? And even if Donald Trump is a thoroughly farcical figure, his triumph already is nothing less than a national tragedy.
As is often observed, the Supreme Court operates both behind closed doors and in the open. Because the doors are quite securely closed, though, commentators on the Court are driven to read what the Court says as revealing what happened behind the closed doors. This sometimes (often?) leads to overinterpretation.
A good example is a piece by Dahlia Lithwick in Slate on Williams v. Castillo, last week's decision about judicial recusal. She writes, "Nobody with a wireless signal can possibly miss the fact that the court waded into the murky discussion over judicial bias only days after Donald Trump accused the federal judge overseeing a class-action suit against Trump University of bias." There are several problems with this. (1) The Court "waded into" the area months ago, when it granted review. (2) It takes quite a while to prepare opinions, and it's implausible (in the extreme, I think) that anything significant in the Court's opinions was influenced by Trump's comments "only days" before the Court released its opinion (although I suppose one could go through the opinions with a fine-toothed comb to find something that might have been inserted at the last minute).
(3) It's also implausible, I think, that the Court rushed out its decision because of Trump's comments. Opinions tend to be released when they are ready. Sometimes, they are rushed out because a lot turns on a quick resolution, as in this year's decision in Welch v. United States or, notoriously, Bush v. Gore. And sometimes they may be delayed for political reasons, as might have happened with Roe v. Wade. But the sort of low-level politics suggested by Lithwick's comment seems to me quite unlikely to have played any role in the timing of the decision's release.
At the same time, though, the very fact that Lithwick -- and I assume others -- made the connection between the opinions and Trump's comments may shape the public understanding -- the culture -- associated with the decision. So, retrospectively, Lithwick may -- in a sense -- be right.
When courts declare laws unconstitutional, they provoke the
familiar complaint that they are thwarting democracy: legislatures are elected
and federal judges aren’t.Now that the
Supreme Court is likely soon to lurch to the left, conservatives are
rediscovering this complaint.But a
newly liberalized Court is likely to do a couple of big things that will make
America more democratic.
The death of Justice Antonin Scalia and the doomed candidacy
of Donald Trump together are big news for Constitutional Law.They mean that the conservative majority on
the Court, which has been open to increasingly
extreme claims, is gone.Scalia will be
replaced by a liberal, and probably so will 79-year-old Anthony Kennedy.Time to think about how the Court’s liberals
ought to handle their newfound power.
failure as a judge was that, while piously reciting platitudes about
judicial restraint, he routinely distorted the law in order to reach policy
results he liked, often blissfully
unaware that he was doing that.Conservatives now fear that the left will play the same game, using
judicial power to achieve results they can’t get at the ballot box.(See therecentflap over Mark
Tushnet’s suggestion that
constitutionalists on the left abandon their defensive crouch.)
Some of what the left is asking for, such as protection of
abortion and gay rights, concededly involves disputable value choices.But some major judicial interventions are
long overdue and involve no value choice more controversial than a preference that
the voters get to decide who rules them.
In contemporary constitutional theory, Prof. John Hart Ely, who
died in 2003, is widely cited but has few followers.Ely worried as much as Scalia about judicial
imposition of value choices, but unlike Scalia he wasn’t a hypocrite.His work is urgently relevant today.
Ely proposed an approach that would avoid such choices, that
would reinforce democracy.In his 1980 book, Democracy and Distrust, he offered
a constitutional theory in which "the selection and accommodation of substantive
values is left almost entirely to the political process," and judicial
review is concerned solely with "what might capaciously be designated
process writ large -- with ensuring broad participation in the processes and
distributions of government."
The legitimate function of constitutional law, for Ely, was
preventing incumbents from entrenching themselves in power.When courts do this, they are not opposing
the will of the people, but guaranteeing that the people will be able to
control government.The easiest cases
are the malapportionment cases of the 1960s.Unless districts have equal populations, it is easy to see how to make
elections meaningless.If you let me
redistrict Illinois any way I like, I will divide it into three districts, one of
which is my living room, another my kitchen, and the third the rest of the
state.After that I can easily outvote
everyone else.It’s not undemocratic to
put a stop to that.Similarly with
speech restrictions that prevent criticism of incumbent officeholders.
Ely offers a minimalist theory of judicial review.Even if you think, for democratic reasons,
that courts should hardly ever strike down laws, they still ought to protect
Now consider two familiar atrocities in contemporary politics,
which, from our defensive crouch, we have long taken for granted that the
Roberts court would never fix:partisan
gerrymandering and voter ID laws.Both
have the notorious purpose and effect of making it harder for Democrats to win
elections, even if majorities prefer them.
Computer modeling has turned gerrymandering into a fine art by which
democratic majorities can consistently be thwarted.In the 2012 Congressional election, Democrats
got 1.4 million more votes for
the House of Representatives than Republicans, yet Republicans won by a 234 to
201 margin. In North Carolina, they got
51% of the vote and 4 of 13 seats. One
analysis concluded that
Democrats would need to win 55% of the vote in order to retake the House.
And then there’s voter ID.One of the ugliest political practices in American history is the
deliberate suppression of the black vote by neutral-sounding tricks like
“literacy tests.”Voter ID is yet
another raciststratagem, adopted
solely because black voters are less likely to have the necessary documentation
at their disposal.The voter fraud that
these laws purport to remedy is nonexistent.Judge Richard Posner, no lefty, has observed that
these laws are “a mere fig leaf for
efforts to disenfranchise voters likely to vote for the political party that does
not control the state government.”
So far from offering any remedy for these abuses, the Roberts
Court licensed them, in its extraordinary
gutting of the Voting Rights Act by a 5-4 margin in Shelby County v.
Holder.Many states immediately pounced on the
opportunity to place new obstacles in the path of voters.For the first time since the Act was passed,
we are actually having a serious political fight about whether American
citizens should get to vote.
Ely’s theory shows why there’s nothing undemocratic about courts
putting a stop to all this.The Roberts
Court’s tolerant attitude toward both cannot be justified as a responsible
exercise of judicial duty, no more than a Southern sheriff in the Jim Crow
period passively watching a lynch mob. Partisan
gerrymandering and voter ID both aim to defeat democracy, and incidentally
replicate the loathsome practice of using procedural tricks to deny blacks the
They should be crushed.In all likelihood, once the Court is not dominated by partisan
Republicans, they will be crushed.And
there is nothing undemocratic about using the courts to crush them.