Balkinization  

Friday, June 24, 2016

Brexit, the Populist Moment, and Trust

Stephen Griffin

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 forward.

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 nationally-minded leadership.


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 Relic is 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 Isle of Constitutional Radicalism

Gerard N. Magliocca

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.

Thursday, June 23, 2016

Another June Surprise: Justice Kennedy Upholds Race-Conscious Admissions in Fisher

David Gans



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 enrolled.”   

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 Ginsburg. 

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 opinion.  

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.   

Ed 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

Wednesday, June 22, 2016

The Corpus and the Constitution

Lawrence Solan


Linguists at 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.

The difficulty, 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.

Whether one 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 penalty.

As an 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 met.    

Whether or 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.          

Tuesday, June 21, 2016

Samuel Alito Channels Charles Beard (and maybe Sandy Levinson)

Mark Graber

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

Saturday, June 18, 2016

Clouds Over the Project of Liberal Constitutionalism? --- III

Mark Tushnet

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

Mark Tushnet

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.

Friday, June 17, 2016

Clouds Over the Project of Liberal Constitutionalism? - I

Mark Tushnet

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.]

A Conversation with Ilya Somin about Democracy and Political Ignorance, Part Two

JB


This is part two of a two part interview with  Ilya Somin about his book, Democracy and Political Ignorance: Why Smaller Government Is Smarter, which he has revised for a second edition.  Part One appears here.

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 to  know 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 on?

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 more pessimistic.

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 ignorance?

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 society  overall.

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 book The 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 where  we have stronger incentives to become well-informed. Foot voters have far better  incentives 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 democratic societies?

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 greater  availability of information.

But while we can’t do much (at least in the foreseeable future) to increase political knowledge, we can mitigate the effects of ignorance by making more of our decisions in settings where we have far better  incentives to seek out information and  evaluate it objectively. 


JB: In your second edition you talk about the "Big Sort." How does this kind of demographic change affect the argument of the book?

IS: In my book I argue that  we can reduce the harm caused by widespread political ignorance by limiting and decentralizing government power, which will enable more issues to be decided by “voting with your feet” instead of ballot box voting. Foot voters have far better  incentives to acquire information and use it wisely than ballot box voters do.

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’s  migration preferences do not actually align closely with conventional Red-Blue politics. Second, even if increased foot voting did  lead 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 both  in 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 tactics.

I discuss the role of ignorance in the 2016 campaign further in this recent CNN op ed.

Thursday, June 16, 2016

Hunting Where the Ducks Are: Part II

Mark Graber

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.

This 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.

Donald 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.

These 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.

A Conversation with Ilya Somin about Democracy and Political Ignorance, Part One

JB


I recently spoke with Ilya Somin about his book, Democracy and Political Ignorance: Why Smaller Government Is Smarter, which he has revised for a second edition.  The book argues that widespread ignorance about public affairs creates serious obstacles for democracy that can best be handled by decentralizing and limiting government.

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.

First,  I wanted to address several important issues that were not included in the first edition. A particularly important one is the argument that foot voting is dangerous because it will exacerbate the supposed trend towards ideological segregation famously dubbed “the Big Sort” in the book of the same title by Bill Bishop. Another is the claim (increasingly popular in academic circles) that we can overcome political ignorance by using jury-like bodies selected through “sortition” to make political decisions. The new edition also addresses the relationship between political ignorance and the disproportionate political power of the wealthy – an increasing focus of controversy in both public and academic debate.

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 to win.

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 of  what 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 States?

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 lesbians.

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 various ways.

Aside from these more general effects, political ignorance also inflicts harm in a wide range of policy areas where it prevents the public from even noticing harmful or counterproductive government policies, or their effects. To take just one example within my areas of expertise, policy experts across the political spectrum agree that restrictive zoning is a major obstacle to affordable housing and job opportunities for the poor and lower-middle class. Yet the vast majority of voters (including those who suffer the most from this) are likely unaware of the connection between the two. As a result, there is little effective opposition to the entrenched interest groups that benefit from the status quo.

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.


Tuesday, June 14, 2016

Great Speeches in American History Delivered by Donald Trump

Gerard N. Magliocca

Washington's Farewell Address: "Today I'm announcing my candidacy for a third term, as I am indispensable."

Lincoln's Second Inaugural:  "With malice toward all, with charity for none, let us give these Confederate traitors what they deserve."

FDR's First Inaugural:  "Be afraid.  Be very, very afraid."

John F. Kennedy's First Inaugural:  "Ask not what your country can do for you, ask what your country can do for me."

Barry Goldwater's 1964 Republican Convention Speech:  "Extremism in the defense of liberty is no vice, and moderation in the pursuit of justice is no virtue."

Ronald Reagan's Challenger Speech:  "Tonight I want to talk to you about the losers who run NASA and blew up our space shuttle."

Monday, June 13, 2016

Will the US survive the 2016 election? (II)

Sandy Levinson

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.  


Overreading the Tea Leaves?

Mark Tushnet

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.

Sunday, June 12, 2016

The Return of John Hart Ely?

Andrew Koppelman



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.

Scalia’s fundamental 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 the recent flap 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 democratic government.

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 racist stratagem, 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.”  

This is not ordinary political hardball.  This is going over to the dark side.  Merely participating in elections or holding office does not make one a friend of democracy. 

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 vote.

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.


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