The difficulty in reconciling constitutional constraints, especially those enforced by judges, on the authority of democratic majorities given American society’s commitment to popular sovereignty and self-governance—the “countermajoritarian difficulty”—has received a lot of attention in constitutional scholarship over the years. A less explored, but no less important, question is why democratic majorities follow such constraints rather than treating them as “parchment barriers” easily crumpled and discarded?
Professor Daryl Levinson of Harvard Law School presented a paper at this week’s Law & Politics Workshop addressing this question from a Madisonian perspective. James Madison believed constitutional rights by themselves were only effective as a signaling mechanism to a widely dispersed majority that it needed reign in its agents in government. By themselves, constitutional rights are fairly ineffective restraints against the majority itself. As outlined in Federalist Numbers 10 and 51, Madison hoped the Constitution also created institutional arrangements that empowered political actors whose interests would align with constitutional rights so that the majority could be adequately checked.
For a mechanism to self-enforce it must (1) give power to actors who are likely to continue to share the interests or policy preferences of the original holders of political power and (2) ensure this arrangement of political power is relatively stable over the long term. But it is unclear why Madison thought his arrangements would be self-enforcing, and particularly why the self-interested, aggrandizing motivations of those occupying all three branches of the federal government and state officials would necessarily satisfy condition (2) by jealously competing against one another for power along departmental lines into the indefinite future. Professor Levinson attempts to offer a more complete theoretical justification for why the Madisonian view might be correct while remaining agnostic about whether the account actually is true.
Professor Levinson’s paper begins by looking towards social science theories of “commitment” and “entrenchment.” Commitments are efforts to make policies or institutional designs difficult to change. Entrenchments are policies or designs that are difficult to change, whether intentionally or not. Political commitments are possible between parties through a variety of mechanisms, such as repeat-play, reciprocity, and reputation. Loggrolling is an obvious example of these mechanisms operating in American politics. Unilateral commitment is also possible. Professor Levinson gives the example of Britian’s transformation from an elite oligarchy to a broadly enfranchised democracy. Arguably this was to stave off social unrest by credibly committing to wealth distribution; this commitment is credible whereas a mere promise to enact such policies is not because the decisive, median voter in a broadly franchised society is no longer a member of the elite who will vote to rescind these policies once the crisis passes.
Nothing so far has explained why political commitments about institutional design are more durable than commitments about rights. Professor Levinson suggests three distinctive features of institutions explain their increased durability: bundling, prospectivity, and uncertainty. The basic intuition is that individuals care very little about institutions apart from the substantive outcomes they will generate. Institutions thus represent prospective, probabilistic bundles of substantive outcomes. By bundling outcomes, institutions cover a broader policy space than a single right, which increases the benefits of cooperation and the costs of change; it is more expensive to bargain into a new institutional arrangement than it is to bargain into a single policy outcome. And assuming institutions are expected to exist over a long period of time, the stream of policy outcomes generated by the institution becomes more uncertain. This incentivizes outcome losers to stay in the institution because future outcome streams may benefit them, and ensures they cannot accurately predict whether this institution or an alternative one will produce a superior outcome stream in the long-term, which likely reinforces people’s status quo bias. Of course, this is a result we should laud only if we think that the institution being perpetuated is substantively fair to all or that the institution is not so entrenched that those disadvantaged by it have no meaningful opportunity for reform.
After outlining this theoretical background, Professor Levinson’s paper turns to assessing the self-enforceability of various mechanisms in the United States Constitution. The two most obvious mechanisms to assess are federalism and separation of powers. Professor Levinson believes both of these mechanisms failed as self-enforcing mechanisms because Madison miscalculated the long-term incentives of federal and state officeholders. In short, condition (2) discussed above did not hold. Individual politicians follow their self-interested, aggrandizing interests by winning elections and effectuating both their goals and the goals of their constituents. In 1789, that may have meant state legislators consistently pushed back against federal encroachments, but that has not been the case for the last seventy years. In fact, a rational state officeholder attempts to look fiscally responsible while bringing desired services to their constituents by leveraging the federal debt. Thus the fiction that states have “balanced budgets.” A similar process has eroded the separation of powers within the federal government, which is now a more collusive than combative arrangement of power.
Of course, this failure tells us nothing about whether federalism was a less durable mechanism for protecting rights and liberty than focusing on protecting those rights and liberties directly. Madison also may have identified faction as the correct mechanism for enduring protection of rights, but he may have focused on the wrong factional divide.
The truly durable factions are political parties, not spheres of government. Professor Levinson thinks this would not have surprised Madison as Madison viewed federalism and separation-of-powers as only a fallback mechanism in case real democratic governance failed. Thankfully, American democracy has instead flourished. Professor Levinson therefore chastises contemporary constitutional scholars for cleaving to “the anachronistic aspects of Madisonian theory.”
For example, Professor Levinson thinks scholars are tilting at windmills when they lament that Congress does not adequately police the President during emergencies and wars. Instead, these scholars should focus on mechanisms that give opposition parties oversight, and possibly some degree of control, over the President even when they are in the minority. Although we should question whether this is an enactable recommendation given Professor Levinson’s account of why federalism failed. What benefit is there for a self-interested minority Senator or party to accept oversight responsibility? If things go well, the President will receive the credit, but if things go poorly the minority party can no longer easily wipe its hands of responsibility.
In any event, I was also disappointed that Professor Levinson did not attempt to explain how commitment, entrenchment, and probabilistic bundles explained the durability of political parties compared to other institutions, such as federalism. For example, why do so few politicians defect from their party, as Arlen Specter recently did, or buck party orthodoxy regularly? There is no intuitive reason why self-interested, aggrandizing politicians interests would always align with the party’s interest any more than with their sphere of government’s interest.
Workshop participants also questioned why we should expect repeat-play, reciprocity, and reputation to hold when politicians reach an endpoint, such as when a number of politicians see their party is about to lose power and both voluntarily and involuntarily end their careers. Professor Levinson suggests political parties may provide the answer because they expand time horizons: these politicians may be gone but the party will exist into the indefinite future. This leaves the same question, however, just at the level of party loyalty.