Columbia Law Review March, 1998 267 a constitution of democratic experimentalism



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Columbia Law Review

March, 1998


*267 A CONSTITUTION OF DEMOCRATIC EXPERIMENTALISM
Michael C. Dorf

Charles F. Sabel [FNa1]


Copyright © 1998 Directors of The Columbia Law Review Association, Inc.;
Michael C. Dorf, Charles F. Sabel
In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that affect them.
In democratic experimentalism, subnational units of government are broadly free to set goals and to choose the means to attain them. Regulatory agencies set and ensure compliance with national objectives by means of best‑practice performance standards based on information that regulated entities provide in return for the freedom to experiment with solutions they prefer. The authors argue that this type of self‑government is currently emerging in settings as diverse as the regulation of nuclear power plants, community policing, procurement of sophisticated military hardware, environmental regulation, and child‑protective services.
The Article claims further that a shift towards democratic experimentalism holds out the promise of reducing the distance between, on the one hand, the Madisonian ideal of a limited government assured by a complex division of powers and, on the other hand, the governmental reality characteristic of the New Deal synthesis, in which an all‑powerful Congress delegates much of its authority to expert agencies that are checked by the courts when they infringe individual rights, but are otherwise assumed to act in the public interest. Professors Dorf and Sabel argue that the combination of decentralization and mutual monitoring intrinsic to democratic experimentalism better protects the constitutional ideal than do doctrines of federalism and the separation of powers, so at odds with current circumstances, that courts recognize *268 the futility of applying them consistently in practice by limiting themselves to fitful declarations of their validity in principle.
For example, conventional administrative law imposes external judicial checks on administrative agencies, obliging judges to choose between superficial scrutiny of formal proprieties and disruptive, indeed often paralyzing, inquiry into what an idealized agency might be expected to do. By contrast, democratic experimentalism requires the social actors, separately and in exchange with each other, to take constitutional considerations into account in their decisionmaking. The administrative agency assists the actors even while monitoring their performance by scrutinizing the reactions of each to relevant proposals by the others. The courts then determine whether the agency has met its obligations to foster and generalize the results of this information pooling. Agencies and courts alike use the rich record of the parties' intentions, as interpreted by their acts contained in the continuing, comparative evaluation of experimentation itself. In the administrative and related settings, the aim of democratic experimentalism is to democratize public decisionmaking from within, and so lessen the burdens on a judiciary that today awkwardly superintends the every‑day workings of democracy from an external vantage point.
Finally, the Article reconceptualizes constitutional rights. Relying in this and other regards on ideas associated with early‑twentieth‑century American pragmatism, the Article treats disagreements over rights as principally about how to implement widely shared general principles. Under the heading of "prophylactic rules" and related doctrines, the United States Supreme Court has recognized that there are often a variety of acceptable remedies for a violation of rights or a variety of acceptable means of achieving a constitutionally mandated end. The authors argue for a radical extension of these doctrines, in which judicial recognition of a general, core right, permits substantial experimentation about how to implement that right. They propose institutional mechanisms to facilitate such experimentation. The authors contend, however, that with rights, as with other constitutionally entrenched principles, means and ends cannot be neatly separated, so that experimentation at the periphery also redefines the core, ultimately challenging the very distinction between core and periphery.
TABLE OF CONTENTS

I.     The Constitutional Predicament as Prologue .......................……………. 270


         A. The Crisis .................................................…………….……………. 270
         B. Proposed Solutions ..........................................…………………… ...272
         C. Limitations of the Existing Categories ......................…………….….274
D. A New Form of Deliberation ..................................…………………283
         E. Constitutional Interpretation ...............................……………………289
II.    Centralized and Decentralized Organizational Forms ...............………...292
III.   Democratic Experimentalism .......................................………………... 314
         A. Good Government under Conditions of Volatility and Diversity …. 315
         B. Local Government on Pragmatic Lines: Directly Deliberative
         Polyarchy ......................................................…………………………. 316
IV.    Pieces of the New Polyarchy: Examples of Bootstrapping Reform ...... 323
         A. Family Support Services .....................................………………….. 324
         B. Community Policing in Chicago ...............................……………… 327
         C. Simultaneous Design: Military Procurement ...................………….. 332
         D. Limitations of Piecemeal Efforts ............................………………... 336
V.     The National Framework ...........................................…………………. 339
         A. Congress ....................................................………………………… 341
         B. Administrative Agencies .....................................………………….. 345
           1. Benchmarking ..............................................……………………… 345
           2. Obstruction ...............................................………………………… 348
           3. Novel Forms of Organization ...............................………………… 354
         C. Antecedents and Lessons .....................................………………….. 356
           1. National Highway Traffic Safety Administration ............………… 357
           2. Antecedents in the Forest Service .........................………………... 364
3. Nuclear Power Plant Safety ................................…………………. 371
           4. Innovative Environmental Regulation .......................…………….. 373
         D. The Role of Courts in the National Experimentalist System ..……. 388
           1. The Dilemma of Judicial Review as the Muddle of Means and
         Ends ...........................................................…………………………… 390
           2. Experimentalism and the Giving of Reasons .................…………. 395
           3. A Partial Reconceptualization of Judicial Review and Rights …... 398
         E. Criticisms and Big Worries ..................................………………… 404
         F. Constitutional Scope ........................................…………………… 418
VI.    Federalism .......................................................………………………. 419
         A. The Arc of Federalism .......................................………………….. 421
         B. New York v. United States ...................................………………... 423
         C. Toward a New Delegation Doctrine ............................…………… 428
         D. Experimentalist Federalism in Existing Legislation ..........………. 432
VII.   Democratic Experimentalism and Separation of Powers ..............….. 438
         A. Separation‑of‑Powers Doctrine and its Discontents ...........……… 439
         B. Present and Future Solutions ................................……………….. 442
VIII.  Individual Rights ................................................…………………… 444
         A. The Awkward Consensus on Rights .............................…………. 446
         B. Pragmatist Conceptions of Rights in Existing Doctrine .......……. 452
         C. Institutional Correlates ....................................………………….. 459
D. The Transformative Potential of Experimentalist Methods .....…. 465
       Conclusion .......................................................……………………… 469

*270 I. The Constitutional Predicament as Prologue
A. The Crisis
The defining and revolutionary features of American constitutionalism‑‑ separation of powers, federalism, and the very idea of a written Constitution that constrains government‑‑are losing their vitality as organizing principles of our democracy. None functions as originally intended; it is debatable whether any functions at all.
The distress of our constitutional system is of a piece with the rise of the administrative state in the New Deal and its subsequent disorganization. The emergence of agencies that formulate rules, bring enforcement actions, and adjudicate grievances distanced American government from the founders' attribution of these powers to separate branches. Moreover, the Supreme Court's acquiescence to congressional assertions of a virtually plenary police power, contained within the authority to regulate interstate commerce, displaced the older model of a federal system with a central government whose powers are sharply limited with respect to those of the States.
The judicial decisions allowing the expansion of the administrative state and the extension of national authority were partly a response to decades of criticism of the Court for interfering with political judgments, and therefore might have been expected to end that criticism. They did not, in part because the Warren and Burger Courts soon found themselves embroiled in their own political controversies, but even at its inception, the post‑New Deal Court's jurisprudence promised trouble. Although that jurisprudence formally respects democracy by deferring to most political decisions, the decisions to which it defers often look profoundly undemocratic. Thus, constitutionalism after the New Deal and its familiar revisions of the founding frame‑‑especially the creation of a "fourth branch" of government, [FN1] never freed from the diacritical marks of tenuous constitutionality, and the effacement of State sovereignty‑‑could be justified only so long as they were self‑evidently effective. They no longer are.
These constitutional perplexities are all the more daunting because they seem inevitable given two circumstances generally taken as hard facts of our political life. The first is that our national affairs are too complex, diverse, and volatile to be governed by lapidary expressions of the public will‑‑laws of Congress, administrative rules, judicial judgments‑‑that indicate precisely how to dispose of most of the cases to which they will eventually be applied.
The second is that our national life is so factious that declarations of sovereign intent general enough to be workable open the way to divergent, often self‑interested, interpretations. The more encompassing the *271 legislation (or the broader the delegation of legislative authority to an administrative agency), the more its application must be guided not merely by the text of the enactment, but also by reference to the legislators' intention as revealed in the debates attending passage of the law. Anticipating this, interested groups simply manipulate the discussion that becomes the legislative history to favor the interpretation they will subsequently urge of it. [FN2]
Even, or perhaps especially, recognition of general constitutional rights to, say, freedom of speech or equal protection of the laws, quickly splinters as it travels the long arc from authoritative text to guiding rule of interpretation. [FN3] Again and again, general principles that command respect in the abstract are devalued through contradictory application. In these circumstances, whatever government does, including efforts to correct defects of preceding enactments or police its own boundaries, contributes to its undoing.
Acknowledging these hard facts, many of the Americans most familiar with the operation of our public institutions would save the administrative state, and, in the bargain, reinforce the representative democracy it serves by having much less of it. When the chief concern is inefficiency, the remedy is generally fiscal starvation aimed at stopping the state from doing things that private citizens can do better for themselves. When the concern, on the contrary, is the worry that free‑wheeling delegation of interpretative authority in the name of efficiency is a menace to democracy and the rule of law, the remedy is generally a return to the pristine constitutionalism of the founding generation. [FN4]
These broad and fundamental designs for reform merge in appeals for a new federalism in which the states appear as virtuous republics. Smaller and more homogeneous than the nation state, the states are supposed to govern themselves better when nearly alone, while somehow purging themselves of the taint of localist corruption with which they *272 were long associated. [FN5] These calls reverberate with more elaborate appeals for the decentralization and limitation of national authority by those who accept the New Deal administrative state as a formal starting point, but urge, as remedies to the current confusion, judicial self‑restraint, changes in the scope of delegation of congressional authority to administrative agencies, or modifications in the exercise of agency authority. Added to all these conflicting designs for reform is the confusion created by fragmentary and likewise conflicting successes in realizing each of them. No wonder the New Deal state and the constitutional understanding on which it rests today lead a ghostly existence: Too present in daily life and debate to be forgotten in a netherworld, they are nonetheless too yielding when opposed, and too dumbstruck when criticized to count as more than historical shadows in the battle for their own survival. [FN6]
B. Proposed Solutions
If the foregoing is alarming, much of the explicitly programmatic constitutional discussion currently directed to these themes is frankly and deliberately alarmist. Its premise is that constitutional order and democracy in practice have diverged so substantially and irremediably that we must choose between them: either the Constitution, or democracy as we live it.
Self‑described originalists (on the Supreme Court, in the universities, and elsewhere in public life) are moved by abhorrence of an overweening state to choose a return to the Founders' vision. [FN7] But between criticism of particular usurpations and evocation of the distant world in which such abuses were supposedly prohibited, the originalists offer little or nothing by way of a program to reconcile the vast activity of the actual administrative state with the discipline they believe it requires. [FN8] Despite their large restorative ambitions and the intensity of their passion, most originalists have been careful to talk in the measured tones of insiders in the constitutional bar, preferring careful, apparently technical, commentary on the *273 rules of interpretation to programmatic declarations. [FN9] Their ideas of democracy and constitutional order can be known by inference, if at all. Their silence leaves others to wonder how the restored federalism they encourage can avoid the defects that caused Madison himself to recoil from the localism he knew, and seek protection against oligarchic state governments in an extended republic. [FN10]
For theorists of public choice [FN11]‑‑experts in the modern sciences of collective action‑‑the program is "face the facts." They choose democracy over the Constitution. But the democracy they describe does not merit the name. For, in their science, the very institutions that in the public mind taint our polity, are depicted as a workable, perhaps optimal, response to fundamental problems of social choice that threaten the stability of any representative democracy. Without legislative logrolling, agenda setting by powerful committees or committee chairpersons, and the apparently ramshackle compromises to which these lead, for example, legislators would chase themselves about in an endless search for majorities, preferring B to A, C to B, and then A to C. Without the figurative fire alarms of concerned citizens to direct their efforts, congressional oversight committees would waste their scarce resources in a fruitless attempt to patrol all the activities of administrative agencies. Even the cacophonous debate that attends complex legislation, and so bedevils the courts, the administrative agencies, and the public itself, can be rendered intelligible by a science that instructs us which voices actually do count for democracy to work. [FN12]
But "face the facts" is not a program for a democracy that insists on some assurance that measures taken in its name are not just procedurally impeccable, but also effective and legitimate. Thus, the public choice theorists do not say whether the compromises produced by the decision machinery of the legislative chambers are substantively coherent, let alone addressed to the needs of the nation. Indeed, if legislation is just a jumble of proposals that together attract a majority, or, if coherent, reflects first and foremost the logic of congressional decisionmaking, why should the public and courts defer to it either as an expression of the democratic will or as the promise of an effective solution? Reverence for what works without regard to constitutional foundations appears as impractical as reverence for constitutional foundations in disregard of practicality.
Alongside these calls for hard choices, there is less urgent, more knowing commentary: now critical, now apologetic or justificatory in *274 tone, but always so willing to understand our dilemmas that it risks resignation to them. The critical tones in this discussion are sounded by those who carry forward in constitutional law the program of unmasking law as politics, central to American Legal Realism and its successor, Critical Legal Studies. [FN13] But when the constitutional bench itself worries openly about the prospects of its politicization, this unmasking seems more like Schadenfreude than the analytic foundations of reform.
The moralists and philosophers, who take the American Constitution to be the nearest thing we know to an embodiment of the deep principles of liberal social order, sound justificatory rather than critical themes. [FN14] In part by reinterpreting the categories of liberalism itself in light of constitutional experience, and in part by reforming constitutional law in light of our deeper philosophic understanding, we can improve the good work that our history bequeaths. [FN15] Perhaps this view of current dilemmas would seem less self‑absorbed and more attentive to the institutional turmoil of the age if it did not culminate in the claim that our confusions would soon be revealed to be mere misunderstandings‑‑if only judges would think more like philosophers.
At its most comprehending, beyond criticism and apology, the corpus of constitutional commentary becomes, literally, a list of all the inevitable and irreducible tensions in our constitutional life, and the ties that lead, cyclically, from one to another. [FN16] But the very idea of a taxonomy of constitutional dilemmas underscores the assumption that in the end unites restorationists, public choice theorists, moralists, and critics: There is a fixed set of answers, each with equally fixed limits, to all the large questions raised in alarmed debate.
C. Limitations of the Existing Categories
What is missing in constitutional discussion, and in legal reflection more broadly, is an effort to rethink American constitutionalism and the design of our representative democracy in the light of those urgent doubts about the possibilities of democratic government in an age of complexity, and with attention to the principles of constitutional design that inform our democratic traditions. The genius of American constitutionalism has been its ability to synthesize and resynthesize, as circumstance demanded, two contrary understandings of democracy articulated *275 at the time of the French and American Revolutions. [FN17] The first understanding is deliberative and aimed at the good of all in abstraction from the diversity of everyday affairs. The second is calculative, aimed at the good of each as measured by success in the most diverse practical activities. [FN18] The current impasse in constitutional design derives from the limits of these underlying, mutually defining conceptions, not a misstep of synthesis; a fresh advance, correspondingly, will depend on reconceptualizing deliberative democratic choice in relation to modern practical affairs.
The first understanding, inspired by the ideal of the Greek polis and the North Atlantic tradition of civic republicanism it nourished, sees public decisionmaking as deliberation or reason giving among free and equal citizens. [FN19] It sees in legislative debate a form of discussion in which members, mindful that they are acting for citizens who regard themselves as free and equal, look beyond the advantage of particular interests to the common good; majority vote merely formalizes the truth revealed to serene reason by persuasive deliberation. In its pure form, faithful to its origins in the polis, this conception of democracy is disdainful of the economy or practical activity in general. The ideal citizen or legislator sets aside all such distracting entanglements upon entering the place of public debate, and the lawmaking assembly is so fixed in its attention to the great matters of state‑‑ above all, the measures needed to protect democracy itself‑‑that it does not stoop to consider them. [FN20]
The counterview, with antecedents in the clientelistic exchange of votes for favors in Republican Rome, Whig England, or the early American Republic, exalts the particulars of self‑interest and emphasizes the vote as an instrument of self‑advancement for both citizens and their representatives. [FN21] The latter solicit the votes of the former by promising to act to their advantage in politics. Debate and discussion in the legislature or its antechambers discover not the enduring truths of statecraft but the momentary possibilities of compromise that appease a majority of the represented interests while securing the positions of their representatives. *276 Thus, in the traditional contrast, deliberation as reason giving is and can only be a rarefied activity reserved in effect to an elite of the demos yet detached from it, while the daily affairs of democracy are carried out almost wordlessly by political merchants buying and selling votes.
The first and fundamental synthesis of these views in American constitutionalism is famously Madison's. For Madison, the rivalries and conflicts resulting from a division of powers between the states and the federal government, among the judicial, executive, and legislative branches, and within the legislature, between the more deliberative Senate and the more calculative House of Representatives, would disorient and disorganize factional interests. [FN22] This result, in turn, would reduce the chance that majorities could entrench themselves at the expense of minorities or that any branch or level of government could usurp the powers of others or the rights of citizens. Amidst the indecision created by these conflicts, senatorial deliberation (originally cleansed of the worst dross of particularity by indirect election of Senators) would speak with an authority it could not claim if any one interest were to predominate. Constitutional review by a Supreme Court, still further removed from the politics of do ut des, would defend the ideal of a deliberative republic in those seldom instances where faction managed to rally itself despite the impediments of constitutional design. [FN23] Madison's synthesis was premised frankly on the idea‑‑reasonable for his day‑‑that society is largely self‑governing, and hence it is better to make a few good laws arduously than to make many laws easily, some almost certainly bad. [FN24]
The second and current synthesis crystallized during and after the New Deal. Its premise‑‑which was common knowledge in the years of the Great Depression‑‑ is that the rise of large‑scale industry, organized on mass‑production principles so disrupted the preceding local and regional economies into which they intruded that society was no longer, for practical purposes, self‑ governing. For one thing, the mass producers were so large in relation both to other economic actors and to the state itself that these producers could exercise market power unrestrained by the normal check of competition or the traditional police powers of a state that still conceived of economic activity as commercial and agricultural more than industrial. For another, the spread of the mass producers and the employment relations they created undermined traditional
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