No Democracy

David Singh Grewal and Jedediah Purdy – 

What would it mean to make economic and political life more democratic? One way toward an answer is by getting more precise about how they are now undemocratic. Avoidance of democracy runs very deep in American law, and perhaps in the modern legal and political order generally. This is so despite the fact that constitutionalism and other forms of legal and political order all rest on claims to democratic legitimacy.

“Democracy” retains the core sense of its Greek root: “the people rule.”  That is, in a democracy it must be true in some real sense that people have authorized the rules, institutions, and multifarious exercises of power that they must live with, and which deeply shape their lives. What would it mean to “reinvent” democracy today—and what would the legal structure for such a democracy look like? In an essay forthcoming in the Yale Law Journal, we explore the answers to this question suggested by a recently published book, The Sleeping Sovereign, by Richard Tuck.

Tuck’s book sheds new light on the relationship between popular sovereignty and constitutional government. He argues that the modern constitution is a unique contribution to the practice of democracy, not because it constrains majorities – the usual picture – but rather because it enables them to act. Contrary to the popular myth that European monarchies exercised the “divine right of kings,” most medieval and early-modern rulers claimed some kind of authorization from “the people” – rooted in history, ongoing consultation among elites who claimed to speak for popular interests, and devotion to the well-being of the land. More or less everyone agreed, though, that it was impossible for large populations to rule themselves collectively in any ongoing way: what the citizens of small city-states of the ancient world had done, especially in Athens, was out of reach in a territory as vast as France or England.

Tuck traces a line of thought that began with sixteenth-century French jurist Jean Bodin and received crucial later formulations from Thomas Hobbes and Jean-Jacques Rousseau – and, more to the point, was understood in practice by the late eighteenth century to be a way of recapturing democratic self-rule in large, complex countries. The heart of the idea was to distinguish everyday rule, which thinkers in this line called “government,” from the decisions that established and authorized the basic form and terms of political control, which they called “sovereignty.” If a people authorized its form of government, its sovereignty was democratic, even if everyday business was carried out by other means – courts, ministers, etc. The great innovation that made this idea real was the written constitution, authorized by direct majority vote (or, less ideally, some other popular procedure such as elected conventions). A constitution contained the decisions of a democratic (i.e., “popular”) sovereign, granting power to the government it created while also shaping and constraining that government.

So far so good: It sounds like the U.S. Constitution, more or less (if you can stomach, for the moment, overlooking how limited the franchise was in most states). But pretty much everyone in this tradition agreed, for very powerful reasons, that sovereignty was democratic only if a people could regularly revisit its fundamental law, either to reauthorize it or to change it. Only if constitutional amendment was a real, live option would it make sense to say that the living had authorized the constitutional regime they were born into, rather than simply inheriting it. In other words, the original conception of constitutional self-rule incorporated both the basic commitment of today’s “originalism” (the democratic authorship of the constitution in the first instance) and the basic commitment of today’s “living constitutionalism” (the regular updating of constitutional authorization, by reaffirmation or change). Popular sovereignty was meaningful only if it included both, and to achieve that a people had to adopt a constitution with a viable procedure for ongoing amendment.

The U.S. Constitution is notoriously hard to amend. In effect, it conjured up a popular sovereign, let it act a few times, and otherwise put it to sleep. The extraordinary difficulty of amending the Constitution means that, if you think a constitution is at its heart a document of democratic sovereignty, but the existing constitution severely inhibits the exercise of that sovereignty, it is extremely difficult to say what a people has consented to or authorized, and what it has not. In our essay, we diagnose much of contemporary constitutional thought as a series of strategies to get around this difficulty, whether by ignoring present authorization (much of originalism), claiming to know what popular sovereignty would do today without actually asking (much of living constitutionalism), or by other, subtler or more novel strategies. We’ll leave it to students of constitutional thought to parse our typology and decide whether they are convinced. We have another point to make here.

Perhaps the U.S. Constitution is a model of modern political authority in the defect – the democratic deficit – that haunts its achievement. It rests on, and makes sense only on account of, democratic authorization; at the same time, it impedes and shuts down further acts of self-rule. (We are emphasizing the way the Constitution shuts down democratic sovereignty itself, that is, constitutional lawmaking; we also agree with Sandy Levinson’s argument that the structure of government that the Constitution creates is anti-democratic in a variety of important ways.) There may be something generalizable about this particular history. What has been elsewhere called the “democratic deficit” may prove a rather general feature of political modernity, which holds up popular consent as the sole basis of legitimate power, but baffles and impedes collective decision-making in practice.

The reason this matters for a blog on “law and political economy” is that the legal construction of the economy is itself implicated in this story of democracy simultaneously embraced and denied.

One commitment that unites most contributors to this blog is a rejection of the opposition between “market” and “state.” This opposition sits at the heart of neoliberal ideology. In an earlier post, we described how this opposition fails to account for the deep ways in which law makes markets – which means that markets are ultimately political constructions. (Whether the politics that makes markets is democratic or oligarchic, explicit or opaque, are distinct questions.) Resolving social allocation through the market – that is, “letting the market decide” the rewards to career choices, capital investments, and ultimately what is to be done with every resource and with much of our human time and energy – is a political choice about the shape of social life, necessarily implemented through law.  This is a simple point, really, but one that tends to be lost in many of our popular (and elite) discourses, obscured by the naturalization and justification of markets as ideal, unavoidable, or, failing these, the best we can do.

Markets allocate goods on the basis of consumer demand (meaning “willingness” to pay plus the economic power to back up that willingness). This formula is superficially egalitarian—everyone has preferences!—but in practice not all preferences are created equal. The only preferences that count are those that are backed by money. The main alternative mechanism of social choice to the price system of markets is voting. The Nobel Prize-winning economist Kenneth Arrow began his famous 1951 contribution to the social choice literature by explaining that “[i]n a capitalist democracy there are essentially two methods by which social choices can be made: voting, typically used to make ‘political’ decisions, and the market mechanism, typically used to make ‘economic’ decisions” (p. 1). (Arrow famously proceeded to show that either mechanism of social choice necessarily failed to satisfy simultaneously certain stylized criteria.)

The details of any actual market system prove much more complex than its abstract, ideal-typical version. So do the details of any actual democratic decision-making process. As an unreflective confidence in market-based decision-making has waned following the financial crisis, we are seeing a new interest in democratic decision-making. But the term “democracy” is often used sloppily and casually, whether to praise it or to damn it. How should we think about actual democratic institutions that could do the work of deciding when, and how, to use markets for social allocation, and when to use others, such as public provision? At the end of his Capital in the Twenty-First Century, which we discussed in an earlier blog post, Thomas Piketty make just such a call: “If democracy is someday to regain control of capitalism, it must start by recognizing that the concrete institutions in which democracy and capitalism are embodied need to be reinvented again and again” (p. 570).

The U.S. Constitution, as interpreted by judges, has often been the basis of protections for economic power, from the Lochner era’s defense of laissez-faire labor relations to today’s use of the First Amendment to immunize political spending, advertising, and data transactions against regulation. At a deeper level, the constitution, largely beyond amendment and in the hands of elite interpreters, tends to get identified with certain favored ideas of “rule of law” and other substantive criteria of legitimacy that, its interpreters suppose, must be part of any democratic authorization of government. The bending of popular authorization into the service of an elite “common sense” about how government must proceed is not just the character of much constitutional adjudication; it is also the character of every claim that certain legal arrangements must lie outside political judgment. And any version of economic order is, after all, just a certain legal arrangement, however buttressed by mystification or naturalization.  Perhaps the “democratic deficit” of the modern state appears, under a different name, as “the economy.”

David Singh Grewal is a Professor of Law at Yale Law School. Jedediah Purdy is the Robinson O. Everett Professor of Law at Duke Law School.

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