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. Continue reading

Law & Neoliberalism

David Singh Grewal and Jedediah Purdy –

Neoliberalism is an indispensable term for making sense of the legal, political, and ideological conflicts of the moment, and also one of the most maligned. Liberals who feel criticized by it have insisted so often and so loudly on its uselessness that even those on the left who use it often seem compelled to apologize as they do so, to distance themselves from all its other uses and users. People thus use the term in the very conditions it should work to criticize: isolated, idiosyncratic, mutually mistrustful, and “entrepreneurial.”

The term matters because it names key strategies in one of the major conflicts of the time: the struggle between democratic claims on economic life, usually on behalf of the security and autonomy of workers and other “ordinary” people, and the claims of capital and management: for higher profit, greater capital mobility, the subjection of non-market practices to market logic (from childrearing to universities to the professions), and “freedom to manage” through “labor flexibility.” To use the term, in the early twenty-first century, is generally to acknowledge the lines of this conflict, and often to take sides. For this reason, it is often discomforting to anyone whose view of the social and legal worlds is fundamentally conciliatory – Make the pie bigger through overall efficiency! – or organized by a different division, such as good Democrats versus wicked Republicans, or responsible conservatives versus heedless liberals.

If you are looking to identify neoliberal forms of argument, look first for four overlapping kinds of claims. The first and simplest is an efficiency-based view, sometimes called (by its critics) “market fundamentalism,” holding that strong property rights and private contracting are the best means to increase overall welfare, and that law should promote these except when it intervenes to “correct market failures.” Second is a more explicitly moral line of argument (though of course promoting overall welfare is an intensely moral project) that property and markets best protect the freedom and dignity of individuals, so a market society is the most decent social order possible. The third line of argument adopts a tragic register to deny that democratic politics and public institutions can ever successfully discipline and shape economic life. This pessimistic position tends to serve as a backstop when it is clear that market arrangements are failing to deliver overall welfare – because of intermittent crises and runaway inequality, let us say. “That may be so,” the neoliberal argument now runs, “but the alternatives are always worse – corruption, abuse of power, utopian tyrannies.” The last line of argument is the subtlest, often implicit, and also often the most important: the exclusion of certain kinds of ideas and proposals from any place at the table. Continue reading

Why Law and Political Economy?

David Singh Grewal and Jedediah Purdy –

Why focus on what we call law and political economy, and why now?

In the last decade, inequality has become impossible to ignore. The 2008 financial crisis and the foreclosures and dislocation that followed it shook public and (to a limited extent) elite confidence that financial markets would “police” themselves and work for everyone. The Occupy micro-movement, although it was small and short-lived, led many people who had thought distributive conflict disreputable to begin naming it again. The Bernie Sanders campaign and Black Lives Matter have both drawn fresh attention to the deep and pervasive role of “structural” inequality – long term class divides, often acutely racialized – in shaping American life.

Two basic facts lie at the place where these crises and mobilizations intersect. One is that economic inequality has been growing markedly for decades, in most of the developed world but especially in the United States. The other is that elites, especially economic elites, dominate policy-making, marginalizing the views and interests of most citizens in rich democracies. These two trends reinforce each other, and both are pervasively intertwined with the law. In fact, neither is intelligible without a careful study of both “private” and “public” law. Continue reading