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



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*393 justification of legislation by afterthought, for fear that the obligation to give binding reasons could be reduced to a formality of drafting. [FN400]
Courts recur to a second, closely related but equally unfeasible, strategy in developing canons of restrictive statutory interpretation said to serve the constitutional value of clear authoritative meaning, even if these canons are not directly required by the Constitution. [FN401] Thus, judges attempt to constrain legislatures to purge their enactments of ambiguity by disallowing references to legislative history or by imposing plain statement requirements. [FN402] But these techniques attribute to the Court a fictive capacity to determine which meanings are plain; more troubling still, they attribute to the vacillating and divided legislature we know a superherculean capacity not only to solve problems without recourse to ambiguity, but also to anticipate which solutions the Court will accept as unambiguous. It takes great confidence indeed in the authority and interpretive constancy of the judiciary (and a peculiar mixture of little and much faith in the judiciousness and integrity of elected representatives) to assume that, by itself, the intimidating prospect of a Court sworn to extirpate legislative ambiguity will produce effective and unequivocal legislation.
Given the persistence of these fundamental dilemmas of interpretability, the Court in practice faces a familiar Hobson's choice. It can defer to political decisions however arrived at, knowing that deference invites caprice and manipulation by the lawmaker. Or it can scrutinize the decision in the light of its balancing techniques. But this scrutiny threatens to paralyze or disqualify democracy.
The Court's response is yet another balancing act: In effect, acknowledging that, case by case, it must be either too deferential or too intrusive, the Court aims to strike an acceptable balance between these excesses in the aggregate of its decisions. It does so by categorizing cases either as calling for deference to political decisions or as calling for close supervision. Upon determining that deference is called for, the Court insists only that it be able to discern a "rational basis" for legislation (in constitutional law) [FN403] or evidence of "reasonable" agency decisionmaking *394 (in administrative law). [FN404] The standards applied in the case of such deference are very deferential indeed. In the constitutional area, the Court will simply assume that the legislature has chosen to pursue a permissible end, and then hypothesize a route from chosen means to that end. Thus, to take an infamous example, if the optometrist and ophthalmologist lobby manages to obtain legislation that favors their interests over those of opticians, the Court strains to imagine a world in which the law is public regarding rather than a private deal. [FN405] Or, to choose an equally notorious example from the realm of administrative law, if manufacturing interests persuade a new administration to reinterpret an environmental statute in a manner that permits more pollution, the Court will characterize the shift as a policy decision within the broad scope of the statute, thus avoiding the need to interpret the statute definitively itself. [FN406] In both constitutional and administrative law, such deference is the rule. Only in cases raising matters of exceptional urgency does the Court apply its techniques of weighing means and ends under the more demanding and forbiddingly named tests of strict scrutiny (in constitutional law) and hard look review (in administrative law). [FN407]
But the categorization of particular cases as calling for either deference or close scrutiny is, at best, a political makeshift. It demonstrates to the polity that the Court is aware of its place in the constitutional order, even if by a sad paradox each decision taken by itself seems to suggest that it is not, and even if, by a more perilous paradox, the balancing act underscores just how much that order depends on the Court's ability to maintain its poise. Indeed, on rare occasions we actually see the Court teetering. It worries that the application of a standard in a particular case will undermine the integrity of the standard in others. [FN408] The Court's *395 falterings reveal its fundamental dilemma. For if the Court abandons deference too often for the alternatives of heightened scrutiny or hard look review, and in the bargain recognizes openly that it is engaged in balancing incommensurate public and private goods, [FN409] it interferes with the political process and risks its own legitimacy. But if the Court chooses deference instead, it risks protecting itself at the cost of the fundamental values it is meant to safeguard.
2. Experimentalism and the Giving of Reasons.‑‑The foregoing difficulties are not of the Supreme Court's own making; rather, they result from the nature of the processes the Court must review, and which by doctrinal assertion alone it cannot reform. We contend that as the polity adopts experimentalism, courts can avoid the worst features of oscillation between deference and intrusion. For democratic experimentalism can clarify the relation of means and ends in a way that judicial exhortation and intimidation cannot. Experimentalism provides the polity with the institutional means to ask the questions that courts otherwise need to, but cannot ask, in hard cases, and to ask them in the way most relevant‑‑connecting means to ends‑‑to practical decisions and judicial review.
Experimentalism clarifies authoritative meaning so as to reduce recourse to, and the capriciousness of, statutory interpretation and the balancing tests with which it is associated, because it does away with the spurious precision of once‑and‑for‑all solutions to problems of administrative and constitutional order. As a result, many issues that daunt judicial review in its current form often do not even arise under experimentalism; and when they do arise, they call forth a judicial response that casts the courts in a new, less precarious role.
Consider the case of the environmental statute used to illustrate deferential administrative review. [FN410] The statute provided for stringent emissions licensing requirements to be applied to what the statute called a "stationary source." [FN411] The controversy surrounded the definition of this term. Prior to the Reagan administration, the agency treated each polluting*396 device as a single stationary source for a variety of purposes. The new administration wished to employ a "bubble concept," in which the entire plant was treated as one stationary source. [FN412] This redefinition of the statutory term allowed firms to meet licensing requirements more easily by using low‑level emissions‑producing devices to offset the effects of dirtier ones. [FN413] Given the ambiguity of the regulation, it seemed that the Court had little choice but to defer.
Under democratic experimentalism, in contrast, this sort of problem typically would not arise because Congress and the agencies would play quite different roles. The very idea of statutory authorization for the agency to license plants based upon their compliance with agency‑set emissions standards would be replaced by a statute authorizing the agency to coordinate industry, state, and local efforts to establish a rolling best‑practice requirement. Some jurisdictions might initially define emission sources as points or discrete pieces of equipment, while others might define them as areas or bubbles. The differences could persist until it were demonstrated that one regime or the other produced the superior (rolling) standard. The search routines and comparisons that set such requirements would supplant agency‑set limits; and, should Congress nonetheless choose to trigger certain (other, rolling best‑practice) requirements with a term like "stationary source," the same search routines and comparisons would inform the agency and the court as to whether a standard more stringent than the bubble concept were possible. [FN414] If one jurisdiction could regulate pursuant to a single‑source interpretation of stationary source, then regulated entities in other jurisdictions would have little cause to complain.
Under current practice, when an agency's regulatory approach is challenged as illegal, it typically defends itself by arguing that the practice falls within the band permitted by the standard‑setting statute even if other practices also fall within that band. [FN415] The courts must then determine the meaning of the statutory or regulatory command‑‑a task that is problematic in the ways we just saw. [FN416] By contrast, under a statute authorizing experimentalist administration, the courts do not themselves *397 supply authoritative meaning; the agencies and other actors jointly provide the baseline through rolling best‑practice standards.
Noncomplying entities then would have the burden of showing that the standard selected by the agency is not in fact superior to their own, or of showing that local circumstances render solutions that were adopted elsewhere infeasible for them. Courts would be required to exercise some judgment, but that judgment would be considerably less speculative than under existing practice. The courts would not be charged with determining whether the practice designated by the agency is in fact best‑‑how could a court know better than an agency? Instead, the court's task is to inquire whether the agency in fact undertook the kind of information organizing and coordinating effort necessary to generate rolling best‑practice standards. And in the case of entities or jurisdictions that claim that their local circumstances make the standard practice inapplicable, the burden would be on these entities and jurisdictions to show why this is so, by showing that they undertook the sort of searching comparisons conducted by firms engaged in learning by monitoring.
The system of judicial review is thus procedural in the sense that it asks what the entities, jurisdictions, and agencies did to look for solutions, rather than whether the solutions were the right ones. However, because the preferred procedures of democratic experimentalism so closely tie means to ends, procedural review resists transformation into an empty formalism. Practical exploration of alternatives by the primary actors obviates much interpretive balancing of means and ends by the judiciary, and does so in a way that allays fears of a pro forma manipulation of the record.
Judicial review of experimentalist administration avoids the extremes of deference and intrusion. We have just considered a case that would, under the present regime, be treated under a rule of deference; under experimentalism, the same approach applies in cases that would, under the present regime, be treated as calling for hard look review. Seen through the lens of democratic experimentalism, the flaw in the agency process in a case such as State Farm [FN417] (the paradigmatic hard look case) is not so much the failure to consider a particular alternative regulation as it is the decision to structure the regulatory process as a search for a definitive standard. If NHTSA had established a rolling best‑practice standard, automobile manufacturers would have had a financial incentive to find optimal solutions, and judicial review would have proceeded along the general lines described above.
Recall that cases like State Farm present the question whether an agency regulation ought to be invalidated for the agency's failure to consider some particular alternative. [FN418] An experimentalist court hearing *398 such a claim typically would not need to speculate about such matters, because an experimentalist agency will itself generate the information that bears on the court's assessment of the consideration of alternatives‑‑not because the agency labors under the watchful eye of the courts, but because that information is crucial to regulation itself. The consideration of alternatives is not a mere appendage to the regulatory agenda; benchmarking and error detection by comparison are the very stuff of experimentalist regulation. Judicial review would then look to see whether the agency used procedures that enlisted the regulated entities and the intended beneficiaries as partners in the search for solutions. A claimant would not state a case justifying relief merely by alleging that the agency failed to consider some particular alternative to the regulation ultimately adopted and deemed suitable by the reviewing court; instead, the reviewing court would look to see whether the process was structured in such a way as to produce alternatives and comparisons. When agencies function according to experimentalist principles, judicial review of agency action is thus unlikely to disrupt agency proceedings.
3. A Partial Reconceptualization of Judicial Review and Rights.‑‑As the foregoing analysis makes clear, experimentalist legislation and administration will not eliminate the need for judicial action, but the new forms do partially transform judicial action. An experimentalist court seeks to give effect to important legal norms, without presuming to know their full implications for particular circumstances. The experimentalist court enlists the actors' particular projects in its elaboration of general norms. To do so, the court first identifies circumstances that threaten constitutional and other important legal values; it then commands the actors to meet this menace by means of their choosing (with due consideration to the choices of others in like circumstances) and subject to the court's review. In Part VIII, we detail how the Court has already authorized such an exploration of countermeasures to potential constitutional wrongs under the name of "prophylactic rules," and show that the justification for this approach can sensibly be extended to the mass of constitutional values. For now, however, we focus on those aspects of experimentalist judicial review that illustrate the new division of deliberative labor between the judiciary and other actors. As our examples in the previous section were drawn largely from administrative law, here we focus on constitutional cases.
By way of illustration, consider a stylized version of one of the most vexing constitutional questions of our time: To what extent may government classify persons by race as a means of combating present racism and the present effects of past racism? The question calls for an interpretation of the Fourteenth Amendment's guarantee of equal protection and raises profound philosophical and political issues. Yet, it also raises important practical questions, and an experimentalist judiciary would enlist society at large in connecting the practical to the philosophical. Thus, in the case of an urban affirmative action program, an experimentalist court *399 would oblige the city to canvass current and potential affirmative action programs for city employees and contractors, as well as race‑neutral means for achieving the same objectives. In choosing one or some amalgam of several programs, the city would have to give reasons for its choice, rooted in the particulars of local experience and reflecting the diversity of local views. In justifying its choice, moreover, the city would have to explain‑‑again by reference to alternatives practiced elsewhere‑‑why the forms of participation used to assess local conditions and potential local remedies are in fact suited to those conditions. In correcting the operation of the affirmative action program, the city would furthermore present a review of all these matters from the point of view of participants, pleased and not, and a record of the response to that review. [FN419]
Abstracting from this example to the process of judicial review more generally, we see that the actors use the record of their evolving purposes as the guide and measure of their action. As a consequence, a reviewing court has relatively little need to fear that it is being duped by empty declarations of harmless intent, or that it will have to fill a vast interpretative void by hypothesizing as to legislative purposes. If the gap between actions and the record is large, then the actors have failed to meet their obligation of self‑ explication, and their after‑the‑fact justifications‑‑always suspect‑‑are more suspicious still. If the gap is acceptably small, then the record reveals the intent as it was interpreted in action; and, being itself an exegesis of the facts, it neither requires nor admits an after‑the‑fact supplement.
Stripped of the confounding complexity of means‑ends scrutiny in its familiar forms, an experimentalist review moves in the direction of an express jurisprudence of excluded or impermissible reasons. [FN420] At any moment, such a jurisprudence gives substance to the constitutional obligation*400 that citizens be treated as free and equal by saying what motives violate that requirement. [FN421]
In determining, next, whether permissible reasons have been accorded the respect due them, a court need no more reconstruct the whole history of decisionmaking in a matter under consideration than an agency does in determining compliance with the obligation to benchmark and the rolling standards that result. Where judicial review of agency action is at issue, the process takes place at a metalevel: The court reviews the agency's decisions about how to regulate, given the choices faced directly by regulated entities. The court looks to the record of the agency's successive organizations of information pooling, and especially its (changing) responses to challenges and proposed alternatives. This form of judicial review resembles the new method of regulating nuclear utilities. It judges the safety and reliability of the responses by analyzing how they respond to potential hazards and actual threats, given an extensive record of both, and a record not only of reactions to them but of efforts to improve those reactions. [FN422] Where there is no agency interposed between the actors and the court‑‑as in the urban affirmative action example‑‑the court monitors the pooling of information as though it were an agency, but applies, of course, the less detailed criteria found in broad constitutional guarantees, as against relatively concrete (experimentalist) statutes. In determining, for instance, whether the city adopting affirmative action measures has chosen means appropriate to the allowable end of reducing discrimination, the court, like a hypothetical regulatory entity, looks to the pool of experience upon which the city itself has been drawing: the affirmative action plans of like cities and their justifications, the exact form of benchmarking, the participatory methods, and the corrections to these.
Thus, the court judges the parties' abilities to gather, summarize, and use information by their ability to learn from their mistakes while drawing on the efforts of others in their situation to do likewise. Plaintiffs will strive to enlarge the circle of comparisons to include cases with outcomes *401 that favor their cause. To be convincing, they will have to show that at least some other jurisdictions have found the comparisons they contemplate compelling enough to consider acting on them. Defendants will present reasons based in their own experience for disallowing those comparisons. To be convincing they will have to show that these reasons are consistent not only with the other reasons they give for their actions, but also with those actions (and responses to the reactions they provoke) themselves. In this to and fro, it is the primary actors that define the range of alternatives to be considered in an evaluation of the appropriateness of ends to means, further publicizing the variety of possibilities in the process; and in deciding whether due consideration has been given to these alternatives, the court refers to standards of care and attentiveness‑‑the ability to learn and learn to learn‑‑that emerge from the practice of the relevant parties themselves.
The resulting convergence of judicial and practical reason giving appears most dramatically in the formulation of concrete plans of action. Even traditional courts often directly involve the parties in the formulation of remedial decrees. This is most often true in institutional reform litigation: Upon finding that a city deliberately operates a racially segregated school system in violation of the Equal Protection Clause or that a state operates an overcrowded prison in violation of the Cruel and Unusual Punishments Clause, courts routinely solicit remedial plans from the plaintiffs and (respectively) the school board or prison officials. [FN423] Experimentalism generalizes and radicalizes this procedure. It asks courts to involve the parties in exploring the realm of possibilities at the earlier stage of determining whether there is a legal violation.
For trial courts, experimentalism can transform the role of the judge from the traditional Anglo‑American model of passive referee [FN424] into an active problem solver, acting in cooperation with lawyers and the network of social problems and services in which legal problems are embedded. For example, in the last decade, over 150 drug courts have been created, and an equal number are planned. [FN425] These courts treat nonviolent crimes committed by drug addicts as symptoms of the addiction, rather than merely as violations of the criminal code. Social workers, medical personnel, and a sophisticated computer database give the judge the kind of information necessary to decide whether and how treatment may be more appropriate than prison; frequent follow‑ups by the court ensures *402 that addicts continue their prescribed treatment, and that treatment facilities serve their assigned functions, rather than simply acting as alternate warehouses to prison. [FN426] In this setting, the judge acts as coordinator of information, as stern parental figure to addicts who repeatedly fail to follow through on treatment, and as cheerleader for those who succeed. [FN427] The one thing the judge does only rarely, however, is, in a word, judge‑‑in the sense that the judge rarely purports to make a legal or factual determination based on competing presentations. [FN428] But, unlike other contexts in which the judicial system skips the adjudication phase, such as plea bargaining, in a drug court the judge plays an extremely active role in implementing and overseeing resolutions. [FN429]
In those circumstances in which the court is not a part of the social arrangements it superintends, experimentalist judging will often consist of instructing the primary social actors to devise solutions. As a striking example of the convergence of approaches, consider the decision of the European Court of Justice in Union Royale Belge des Societes de Football Association (ASBL) v. Bosman. [FN430] The court faced a challenge to, inter alia, regulations promulgated by national and international soccer organizations requiring the payment of large transfer fees (up to eight times a player's annual gross salary) when, upon the expiration of a professional player's contract, he wished to play for a new club. [FN431] The court interpreted Article 48 of the European Community as including a prohibition on "rules applied without discrimination which hinder freedom of movement," [FN432] and accordingly held the transfer rules invalid in the case of a Belgian soccer player who found himself unable to play for a French club because of the prohibitive cost of the transfer rules. [FN433] However, the court recognized that the soccer organizations were legitimately concerned that without some form of regulation, the teams playing in the richest markets would win the bidding war for the best players and thereby reduce the overall quality and competitiveness of play. [FN434] Finding that the transfer rules were not the only feasible means of preventing this occurrence, [FN435] the court ruled them invalid. [FN436] The court did not, however, order the organizations to adopt any particular remedy. Instead, *403 it noted that the objective of competitiveness could be achieved by revenue sharing, as that method in fact was in use "in specific areas by the associations and clubs concerned." [FN437] Having set this benchmark, the court made clear that it would not presume to devise solutions for the actors:

Which system the associations and clubs put in the place of the . . . transfer rules with their system of transfer fees is in any event a matter for them themselves. The only condition imposed by Community law in that respect is that the right of players to freedom of movement, protected by Article 48 of the EC Treaty, must remain guaranteed. [FN438]


As we explain in greater detail in Part VIII, American constitutional doctrine anticipates a similar form of experimental elaboration of legal norms in its concept of prophylactic rules. [FN439] The basic notion, elaborated in Miranda v. Arizona [FN440] and other cases involving the rights of criminal suspects, has several components. First, prophylactic decisionmaking allows that some circumstances pose special risks to constitutional rights and values even if the Court cannot identify a clear violation. Second, this allowance obligates the government to meet minimum protective standards established by the Court. Third, the Court's chosen standards are understood to be mere minima; the Court encourages different jurisdictions to experiment with other means of protecting the vulnerable rights and values. It should be immediately apparent that this approach may be used whenever the Court is uncertain about the application of general norms to particulars‑‑and that this circumstance describes nearly all adjudication.
Thus, as a matter of substance, experimentalist judging focuses on the permissibility of reasons, and responses to threats to fundamental legal norms. As a matter of procedure, experimentalist judging focuses on participation; but where traditional procedural jurisprudence seeks the eternal requisites of fair process, [FN441] experimentalist courts ask whether the parties whose actions are challenged have satisfied their obligation to grant those rights of participation revealed to be most effective by comparison with rolling best practices elsewhere.
But no matter the constraints supplied by the self‑exploration and explication of the parties in democratic experimentalism, and its approximation of judicial and practical logistics notwithstanding, in the end, of course, judging the validity of reasons and the respect accorded them in particular cases will require judgment; and as judges reflect on the reasons *404 given for preceding decisions, judgment will be informed by doctrine. Often that doctrine will be shaped by the need to clarify the responsibilities of actors and institutions within the architecture of an experimentalist regime. As anticipating such doctrine is itself a way of clarifying the experimentalist design, we present experimentalist variants of federalism doctrine concerning the relation between national and subnational governments, and of separation‑ of‑powers doctrine concerning the relation between branches of government. The most controversial doctrinal developments, in experimentalism as under current arrangements, will typically concern the definition of the rights that define the freedom and equality of citizens, or, put another way, set limits to the reasons permitted in directly democratic deliberation. Because it identifies and publicizes novel forms of participation, democratic experimentalism provides a mechanism by which the social actors can press the courts for clarification of the citizens' rights of participation broadly understood. Because it allows local actors to pursue broad ends by the means they think best, experimentalism allows judges to acknowledge the justice of actors' demands for clarification of their participatory rights without the courts' having to discern by themselves how this acknowledgment can be woven into the skein of practical affairs. Anticipating this mutual redefinition of participation and rights will help clarify how experimentalism gives meaning to democracy. Before turning to these questions of doctrine and rights, however, we address several broad criticisms of democratic experimentalism that are likely to have been crystallized by the exposition so far.
E. Criticisms and Big Worries
Any incrementalist design for polyarchy is reasonably subject to two broad kinds of criticism. The first kind of criticism is that incrementalism, by decentralizing authority and subdividing large decisions into small ones, directly surrenders the weak to the power of the strong. It is often the local oligarchs, after all, who truly love their little platoon. Behind the screen of community and long familiarity, they can have their way, excluding the little people from political participation by quiet intimidation, perhaps softening intimidation into anxious loyalty with the small gifts of clientelism. Or it may be that decomposition of large questions into debates about small improvements disadvantages the weak because the causes of their vulnerability are so deeply and systematically rooted that only large changes will produce improvements worth the name. In obstructing the consideration of sweeping alternatives, incrementalism substitutes tinkering for resolute reform.
The second kind of criticism is agnostic as to the advantages and disadvantages of incrementalism for the weak and the strong. Its concern is efficiency, and the dangers of detour and paralysis. Going step by step we climb, for too long, the hillock rising before us, only to discover at the top the mountains and valleys towards which we ought to have been striving. *405 Thus, incrementalism invites us to celebrate timidity and inertia as prudence and determination. The more determined we are, moreover, to ensure that each step meets the procedural requirements of directly deliberative democracy, the greater the chances that prudence ends in a morass of proceduralism.
We have been mindful of these criticisms from the outset and sought to construct democratic experimentalism to respond to them. To take stock of the argument so far, to make explicit assumptions left in the background, and to suggest further necessary elaboration, we respond to them directly and briefly here.
Consider first the possible menaces to the vulnerable: exclusion and the elimination of the possibilities of great reform in favor of a sedative meliorism. We can be brief with regard to the danger of exclusion, as it has been a central concern in the discussion of institutional design so far, and we will present further arguments in Part VIII in support of rights‑based safeguards against it. [FN442] Here we only recall the assumption underlying the conviction that decentralized experimentalism can be an instrument for increasing participation, or, put the other way, reducing exclusion, and connect that assumption to the large hopes of what is sometimes called Enlightenment or liberal thought.
The assumption is simply that at the frontiers of human activity, efficiency gains are often achieved through new forms of cooperation that work precisely because persons and groups previously denied a say in ordering the affairs that affect them acquire it. Given this assumption, democratic experimentalism is an apparatus for identifying these successes, and providing the means by which their example can be used to enlarge the circle of participation elsewhere. The assumption itself is but a paraphrase of the liberal credo that freedom is the handmaiden, slavery the mortal enemy, of progress, for self‑determination is a precondition of cooperation, and cooperation the condition of joint advance. [FN443] This is the idea behind Adam Smith's bottom line that slavery is the dearest form of employment, [FN444] and the bottom line in the anguished calculations of the nineteenth‑century elites in Western Europe and the United States that mass democracy in some form is a precondition for national economic *406 and military self‑assertion. [FN445] And while there are many examples of servitude that paid for the masters, it is a profession of the liberal faith in the emancipatory possibilities of world history that we regard these as exceptions to the liberal rule. Democratic experimentalism is a relentless and deliberate application of that rule in the service of participatory self‑determination.
If the fear of exclusion names a challenge that democratic experimentalism is intended to address, the concern about the blanket elimination of large alternatives is, in that general form, a needless worry. Within limits set by national institutions (the Constitution, Congress, the agencies), local governments in democratic experimentalism may pursue generally agreed upon goals by whatever means they prefer. They must explain their choices and provide reasons for preferring those choices over other, plausibly relevant methods. They must agree to measures that allow informative comparisons with others pursuing the same goals under similar conditions; if challenged, they must show that they can give good reasons, based upon serious consideration of periodic mutual evaluation, for sticking to their original choices or modifying them.
But subject to these restrictions, local governments may choose radically different alternatives, and experimentalism, by design, makes it easier for them to do this than it would be in a conventional representative democracy. Consider the archetypal case of welfare reform. A local government that chooses to address the problem by adapting and integrating services to suit the highly specialized needs of citizen users can avail itself of the simultaneous engineering and benchmarking capacities of the local governance council, service providers, and government agencies. Another local government, horrified at the prospect of inducing indolence by providing welfare in the first place, can decide, on the contrary, to provide only minimum training and job placement services (unless and until the decision provokes emergencies or until eventual successes of the integrative solution prompt reconsideration). Contrast this autonomy with the possibilities in present mass democracies, where, until very recently, central welfare bureaucracies, backed by national legislatures, had the authority to block anything like the second type of solution, and lacked the incentives and capacity to realize a workable approximation of the first. (We return in Part VI to the current forced‑draft decentralization of welfare reform in the United States as an admonitory illustration of the dangers of abandoning national legislative authority without sufficiently providing for an experimentalist alternative.)
A further sense in which democratic experimentalism by its very nature enlarges the range of alternatives under consideration regards the process of problem solving by direct deliberation. Recall that this process *407 depends on drawing the participants beyond the circle of their habits and routines by exposing them to unfamiliar projects and prospects. The diversity of their viewpoints allows evaluation of novelty, and evaluation of novelty allows reexamination of differences. The immediate products of this deliberation are solutions to problems and indications of organizational reforms that could prevent a similar occurrence. But why assume that reflection on possibilities stops here? As patterns in problem solving and institutional reform emerge, they can be formulated as coherent, if previously unimagined, alternatives. Strategic reflection would be in this sense a joint product of problem solving, just as strategic reflection would be a joint product of product development in firms that adopted learning‑by‑monitoring governance mechanisms. A master skill in the new electoral politics of experimentalism would be precisely the articulation of such patterns and alternatives as a means of furthering the life of the local polity. Thus, because of the freedom to choose among radically different classes of solutions to similar problems, and the possibility of discovering new classes through problem solving itself, it is simply wrong to say that democratic experimentalism, as we describe it, is inimical to large choices, although experimentalism may occasionally overlook some radical possibilities to focus on others.
The fear of paralysis through the decomposition of decisionmaking into infinitely small steps we hold to be similarly misplaced. If all imaginable controversies of interpretation regarding the legality of substantive and procedural proposals had to be fought out in advance of action, then, of course, the concern would not only be pertinent but also irrefutable. But in that case we would no longer be speaking of experimentalism as we have been conceiving it. For the central tenet of experimentalism is that experience matters, or, more precisely, that the best way to assess the viability of plausible but imprecise ideas is to test them in practice under conditions that permit learning from the experience. Experimentalism would be superfluous if its results could be anticipated by reflection. That is why we are, broadly speaking, at pains to make it hard to stop an experiment before the fact simply by imagining possible harms, and to make it easy to demand improvements of a local government or administrative agency if an instrumentality of government in a like situation is in fact doing better.
As we saw in the NHTSA example, the facts are indeed on our side: Empirically, the most effective way to challenge a government regulation is to argue that compliance is in theory impossible. [FN446] Once someone complies, it proves much harder to demonstrate illegitimacy. If we are right in this, and more generally in our assumptions regarding the efficacy of the participatory safeguards (including the liberal assumption on which all the others rest), then arguably the vulnerable will be at least as well protected in an experimentalist regime as in one that makes their *408 protection depend on evanescent legislative and judicial majorities. But this is a long way from saying that experimentalism sacrifices freedom of action out of overscrupulous regard for procedural perfection.
Behind these concerns, however, are two larger and more substantial worries. Measured by the response they require, the response we can offer is no more than a credo. We offer this response only so that it is clear what beliefs, in advancing the idea of democratic experimentalism presented here, we must eventually defend.
The first of these worries surfaced as the prospect that democratic experimentalism conceived as directly deliberative polyarchy may favor some kinds of alternatives over others, even if some of the favored ones count as large departures from the current situation. Specifically, the worry is that this kind of democratic experimentalism results in local experiments that, however bold, are not likely to produce fundamental change, while ruling out comprehensive, national experiments that could. In its most common, radical‑ democratic (but also post‑Marxist and post‑populist) form, the core of the argument is centralist egalitarianism. It claims that the causes of misery and exclusion in contemporary democracies lie in inequalities in the distribution of wealth or access to education, or as the result of these, information needed for active citizenship. Hence, a precondition of participation, and most especially of the highly informed, directly deliberative participation envisaged in democratic experimentalism, is redistribution of assets and opportunities. As rich and poor usually live apart, effective redistribution must be from rich locales to poorer ones, or directly from the rich to the poor. [FN447] An experimentalism that begins by decentralizing control of (some share of) existing or marginally augmented resources to local jurisdictions will only encourage hopes it must disappoint. Or, in those situations in which the rich and poor find themselves grouped together, the worry goes, wealthy individuals and large corporations will co‑opt local government and turn it to their own ends. In this view, wealth and luxury consumption must first be taxed, concentrations of corporate power broken, and the proceeds spent on programs to improve the education, the life conditions, and the economic opportunities of the poor, before (or at least at the same time as) decentralized experimentalism is contemplated at all.
A first, theoretical response to this centralist egalitarianism distinguishes two possible and pernicious consequences of inequality that proponents of the argument often mix together. The first is that inequality *409 reduces the power of the have‑nots to assert their interests in contentious negotiations with the haves, and allows the latter to recoup losses they might unaccountably suffer in one round of bargaining in the next. Call this the bargaining disadvantage of inequality. The second pernicious consequence is the inability to escape or mitigate the consequences of oppressive inequality because of infirmities that result from the oppressive experience itself. Thus, the degradation of slavery is said to reduce, even eliminate, the capacity of the slave to revolt or even to seize the advantages of manumission, just as grinding poverty, passed from generation to generation in a single community, is said to weaken the capacity of the community and its members to take advantage of whatever opportunities for economic self‑ improvement or (as a condition of this) political self‑improvement that arise or might be created. This is the disenfranchisement effect of inequality. What would be the use to the disadvantaged of experimentalist multiplication of the opportunities for participation in the reorganization of services and the redefinition of rules, the centralist egalitarian wonders, if their disadvantages generally bar them from participating and/or render the exceptional effort ineffective?
There is, to be sure, a bargaining disadvantage to inequality; but it is not, we think, nearly so disabling as first appearances in the setting of the overall centralist egalitarian concerns suggest. It is tautologically, but not therefore trivially, true that possession of private resources gives those who have them a stronger hand in bargaining over the distribution of public resources, and better chances of recouping bargaining losses, than those who do not. Having private resources on which to rely in the absence of public ones, the haves drag out negotiations over the distribution of the public goods until the have‑nots accept a bargain, or renegotiate an existing one, on terms dictated by their increasing desperation. Carried to its reductio ad absurdum, this suggests a ruthlessly one‑sided politics in which the haves perpetuate their advantages by extracting an unfair share of public goods, granting in return only the minimal concessions that permit the subsistence of the have‑ nots. [FN448] But we know that politics is vastly more complex, and the prospects of the have‑nots far more open in historical perspective than this idea of the mechanical reproduction of inequality allows. What is left out‑‑ and explains much of the complex political openness we know‑‑is the possibility of alliances between a faction of the haves with the have‑nots against another faction of the elite, and the possibility, in moments of crisis and confusion, of uncertainty among haves and have‑nots alike as to how to define their advantage, separately or together. The two possibilities are connected, moreover, as the pursuit of new alliances can reveal novel solutions to complex problems, just as the exploration of novel solutions can give rise *410 to new constellations of harmonious interests. [FN449] As we argued repeatedly above in the discussion of learning by monitoring and direct deliberation, [FN450] these possibilities are likely to be especially salient in periods of disorientation marked by the kind of volatility and diversity that recommend experimentalism. Alliances and confusion do not nullify the bargaining disadvantage of inequality, but they can transform what might appear to be an insurmountable obstacle to any but radically redistributive reforms into one of the many considerations that would need to be addressed by experimentalist means in making participation in experimentalist deliberation as fair and comprehensive as it can be.
If, on the other hand, inequality regularly led to disenfranchisement, that effect would bar reform, radically redistributive and experimentalist alike. Imagine that misery thoroughly destroys the capacity of the have‑nots to imagine a better future, so that none trusts the others to conceive in good faith a project for advancing the group. Without prospects, each scavenges whatever is in reach, expecting everyone else to do the same. Mutual suspicion within the group is paired with anxious, resentful dependence on the others outside, who provide what insiders cannot provide themselves. Chances for participation are squandered as carelessly as social insurance checks. [FN451]
But the facts repeatedly find against this effect even in the most extreme contexts in which it is alleged, or might, by its nature, be presumed to occur. After the Black Death decimated England in the fourteenth century, the English serfs, servile as they no doubt were, took advantage of the scarcity of labor to improve their conditions of tenancy; emboldened by these successes, some banded together to march on London and demand freedom. [FN452] When the Civil War broke the slave owners' grip on the American South, many slaves fled the plantations, often to the amazement of masters who sincerely believed them incapable of imagining autonomy. [*411 FN453] In this century, peasants in countries such as Mexico, [FN454] Vietnam, and Peru, [FN455] all with histories of debt peonage and other forms of oppression, responded to land reforms offering secure tenancies by making effective use of the new opportunities. Here and now‑‑in situations that, however bad, are not so debilitating as these‑‑we saw that studies of community policing in Chicago find that poor neighborhoods succeed as often as wealthy ones at running the new institutions to maximum advantage. Strikingly similar conclusions emerge from studies of a companion decentralization of control from municipal headquarters to local school councils in Chicago. [FN456] None of this means that oppression has no consequences or that it is easy to establish experimentalist or other reform institutions. [FN457] It does, however, mean that there is strong counterevidence to the claim that one of the consequences of oppression is to make it impossibly difficult for the oppressed to take advantage of new opportunities, including experimentalist ones that might be thought especially demanding.
A further, practical response to the centralist egalitarian objection is that mass democracies in the United States and especially in Western Europe have, in living memory, tried to address resource distribution questions as threshold issues, with undeniable but limited and decreasing success, as suggested by persistently high rates of unemployment in advanced welfare states. [FN458] Substantial resources were transferred, but the programs rarely worked as intended. Perhaps more resources would have produced a different result, but no electorate in any of the advanced countries has embraced this alternative in recent years. In any event, it is at least as plausible to argue that the difficulty came not from the level of resources (when the level was high), but from their ineffective use. [FN459] *412 Resources only count (and attract additional resources) if effectively applied, and democratic experimentalism, we have been arguing, is the way to determine how best to apply them. From this point of view, experimentalism should appeal to any egalitarian who does not make a dogma of centralism.
But it is possible to reformulate this first worry about the selective nature of experimentalism so as to disassociate the criticism from any direct concern with inequality and its effects. This more general and politically agnostic version of the argument starts with the plausible assertion that all‑encompassing institutional frameworks favor some forms of action over others. None are neutral. [FN460] (If there were neutral institutional frameworks, courts would find it immeasurably easier than they do to determine the features of background social or legal order that are not, and cannot be, implicated in alleged constitutional wrongs.) But if frameworks are not neutral, the argument continues, a type of democratic experimentalism that, as here, weakens the directive powers of the national legislature to the benefit of local decisionmaking is presumably less favorable to national reform than a constitutional order, perhaps also containing experimentalist elements, that allows rapid generalization of local initiatives through referenda or special elections in addition to conventional omnibus legislation. Unless we know for sure that nationally designed or imposed solutions are always inferior to those that emerge from local initiative, is this not a dangerous form of favoritism?
An initial response to the criticism in its general form is that democratic experimentalism can help break down the very distinction between the big politics of competing visions of national changes and their preconditions on the one hand and the little politics of local survival and small improvement on the other. This occurs, first, through the generalization of successful local initiatives. If democratic experimentalism increases the local effectiveness of resources, it creates savings that can be transferred to the resource‑poor; if, as suggested a moment ago, directly deliberative problem solving can suggest novel approaches at higher and higher levels of strategic reflection, then democratic experimentalism can be a source of ideas as to how to redeploy the savings effectively as well. The distinction is effaced as well insofar as experimentalism disaggregates sharply contrasting projects and reassembles their elements in novel hybrids outside the categories of familiar debate through *413 benchmarking and simultaneous engineering. Thus, big and small politics begin to blur together as the constant reordering of local problem solving both recombines and broadens local organizational reforms and programmatic innovations. Fateful choices become less fateful because they emerge, deliberately, from many smaller ones.
But a persistent critic of democratic experimentalism as subversive of large choices may concede all this, and yet still regard the response as evasive. This critic will insist, at a minimum, that experimentalism not favor the local and incremental over the national and the comprehensive, even if it does in some measure attenuate the distinction; and we have offered no demonstration that our proposal meets this standard, or does better than others that pretend to. Nor need we. For here persistence reaches a self‑imposed limit. Recall that the starting point of the criticism was the plausible idea that no framework can be neutral. The critic cannot assert that national solutions are inherently better than locally derived ones, while remaining agnostic. Therefore, the most that can be asked is that the experimentalist framework can itself be modified to accommodate "nationalizing" solutions or problem‑solving methods when these are revealed as appropriate. This, we claim it is: Experimentalism as we conceive it can be adopted and abandoned piecemeal, as experience indicates. So, choosing experimentalism attenuates fateful choices and is itself not a fateful choice.
But the apparently appealing idea of a politics without fateful choices, paradoxically, evokes the second large worry. The origin of this worry is in the conception of politics, familiar since the time of the French Revolution and the romantic recrudescence of nationalism, as fundamentally a struggle to realize human potential: of a social class, a nation, humanity or, today, as ethnic group or gender or sexual orientation. Without struggle, without defiance of current authority or the doctrine that justifies it, there can be, in this understanding, none of the self‑assertion on which self‑ realization depends. A politics that did not combine limit breaking in the sense of tearing down obstacles to the realization of new possibilities, and self‑transcendence in the sense of becoming the persons or group whose visionary imagination spies out behind the current limits, is, at best, a politics of small deals‑‑really, no politics at all. Thus, democratic experimentalism extols a form of participation that deprives politics of its truly human significance.
This is, to be sure, a worry on a tightrope. If the search for transcendent identity in politics becomes too fixed on transcendence alone, politics is reduced to a rebellious cry against the immanence of what is. [FN461] Or if the political quest becomes too fixed on the assertion of identity, it becomes a call to fealty to a group with a cause‑‑an appeal to loyalties, *414 and their corresponding animosities, so deep that they cannot be discussed without raising doubts about the authenticity of the response. [FN462] Either way, as rebellious protest or as intolerant rallying cry, by making defiance or compliance too urgent for words, the politics of transcendent identity, unbalanced, chokes off the very discussion of the alternatives it means to foster.
But it is unfair sport to dismiss the motivating idea of a political project by assuming that it must always be denatured in practice. No idea can survive such unsympathetic imagination (not even ideas of politics designed to be proof against such manipulation). A fairer response to the worry that incrementalism robs politics of its justification as the font of identity is to propose an alternative understanding of how we come to be ourselves that does not depend on transcendence, yet does not indulge the world as it is. That alternative, close at hand from the earlier discussion of pragmatism, is the view of identity as mutual self‑clarification: We become most truly ourselves, and thus realize the potential to make ourselves what we can be, by examining what we do‑‑the things we say, the rules we make, the institutions we build‑‑through the eyes of others who respond to them. We transform our identity not by fusing with or becoming someone else, but rather by learning to criticize, remake, and affirm parts of it, and that which expresses it, from the vantage points of others doing the same‑‑not by the negative capability to imagine ourselves as other, but by passionate discussion of who we really are and want to be, given what, in the experience of others in a position to know, we really do and make. This is not the politics of authenticity, of identity affirmed, but rather of identity as pastiche, or difference. This hybrid conception of identity takes shape as our life projects butt up against those of others, through the improvised incorporation of various projects with our own as payment for our difficult progress in the world. [FN463]
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