By AZIZ HUQ
Review of Political Political Theory: Essays on Institutions, by Jeremy Waldron
Cambridge: Harvard University Press, 2016
A central theme of Jeremy Waldron’s new collection of essays, Political Political Theory, is illustrated by the presidential campaign of Donald Trump. Among the multifarious reasons Republicans and Democrats alike might quail at the prospect of a President Trump—racism; intemperance toward criticism; degrading sexism; a giddying appetite for fiscal crisis etc.—one is underappreciated: By attacking a federal judge in a case in which he has an interest, and by threatening to use the institutional powers of the presidency to hound political opponents, Trump has proposed transgressions of the lines that are supposed to demarcate partisan conflict from the ordinary operation of government. To many, this willingness to violate, willy-nilly, important institutional bounds seems deeply unsettling.
The justification for that unease, though, is surprisingly hard to pin down. Conventions of national partisan conflict are not set in stone. The institutional pathways of national policy-making are also fluid. The New Deal catalyzed tremendous changes in the institutional forms of the national government, which are generally accepted today despite harsh criticisms at their inception. Today, critics of President Obama condemn his actions on immigration enforcement and environmental policy as unconstitutional innovations. If a President Trump were to change the way government works in his turn, would this not simply be one more round of institutional evolution, similar to ones that have come before?
At the heart of Waldron’s volume of essays is the idea that the quintessence of a sound and healthy democratic system is a set of “articulate legal structures.” These execute qualitatively distinct tasks and thereby promote a plurality of valuable ends. Most important, they formalize, channel, and enable resolution of inexorable democratic disagreements of policy and principle. A democratic polity, he suggests, cannot do without an array of distinct institutional forms. In particular, it benefits from having two branches of government. It also benefits from specific elements within each branch, such as a bicameral legislature. All these are, to use Hannah Arendt’s metaphor, democracy’s furniture. Guiderails for democratic settlement in a durable, civil fashion, they preserve national political life as a ‘going concern.’
This thumbnail summary, though, does not do justice to Waldron’s subtle, multifarious, and surprisingly coherent book. There are at least three other levels to the work, which I will only sketch here.
A first impression is that the work speaks narrowly to “us political theorists,” urging that coterie of academic specialists to refocus attention away from grand themes of justice and toward sublunary puzzles of what makes a particular institution well-tempered. Two coda-like final chapters, praising Arendt and damning Isaiah Berlin for attention and neglect to institutions respectively, echo this theme. These are the wispiest chapters. It is worth instead concentrating on Waldron’s more substantive arguments, which often start from an insight from a canonical text of political philosophy (Locke, Bentham, Sieyes, Mill, etc.), and then launch into more ambitious normative reconstruction, speculation, or critique.
At another level, Waldron here is deeply engaged—his shirts-sleeves furled and his dukes up—in a close combat against certain Anglo-American constitutional scholars on several fronts. Consider two examples. He rejects, first, the positivist vision of political-science realists who write on constitutions (including two of this site’s editors). On one version of this view, democratic institutions are narrowly conceived as instruments of welfare maximization. Democratic outcomes are a prettified version of what would flow from brute social conflict dominated by the force of majority rule. In addition, Waldron resists a line of scholarship, exemplified best in a pair of fine articles by Elizabeth Magill, that resists the coherence of institutional differentiation in constitutional law. Against these positions, Waldron insists on the possibility of institutional distinction in constitutional design, and (echoing Berlin) a corresponding plurality of moral ends at stake in that design enterprise.
On the first point, I find it hard to disagree. For readers outside the academy, it may be a surprise that Waldron needs to argue that “not all of the values that are at stake in our understandings of institutions and institutional choices … are ... straightforward pragmatic or consequentialist values.” A vision of political institutions as efficient mechanisms for identifying and implementing the outcomes of naked political conflict—even if they, say, involve the subjection of racial or ethnic minorities—has at best a threadbare glamor, even if it is Pareto optimal. In any case, in my view there are serious conceptual obstacles to taking welfare as the sole touchstone of constitutional design.
What of the second point? Is it meaningful to talk of articulated—i.e., distinct and functionally distinguished—institutions committed to specific governmental functions, as characteristic of, even necessary to, democratic constitutionalism? I am not so sure. On the one hand, it is surely possible to talk in general terms of ‘legislative,’ ‘executive,’ and ‘judicial’ acts. But many specific acts resist singular categorization. Think of tax provisions that single out certain transactions or small classes of entities. Or judicial readings of statutes that transform those pieces of legislation. In American constitutional law, the Supreme Court has attempted to assign specific functions to distinct institutions. It has invalidated innovations such as the line-item veto and the legislative veto. The resulting opinions are, alas, incoherent. The Court finds it impossible to map different government functional to distinct institutions in a coherent fashion. The actual practice of governing today is often too complex for labels such as ‘legislative’ and ‘executive’ to be helpful in practice. Too much of the nebulous borders of institutional interaction are subject to dynamic change, often though interbranch negotiation, to be easily taxonomized.
Nor is it plain that democratic practice needs sharp institutional distinctions of the sort Waldron seems to demand. The British tolerance for a promiscuous intermingling of Lords Spiritual and Temporal in a body that once had both legislative and judicial power seems a proof against the idea. Just like my Billy bookshelves, the basic elements of democratic furniture might be arranged in many different ways, even ways that change in big and small ways over time. Put otherwise, there are many ways to slow down the democratic creation of legal rules with coercive force so as to render them transparently amenable to input from many in society. Some do not fall into a separation-of-powers taxonomy at all: The “notice and comment” rulemaking used by federal administrative agencies in the U.S. and the British Commission of Inquiry serve as useful examples.
In defense of his vision of articulated governance, Waldron does not rest on an abstract claim that a distinctly articulated institutional architecture is a necessary means of realizing democratic politics. He also develops positive accounts of several basic institutional elements of a well-functioning democracy. This is the third and final large contribution of the book. Its different chapters canvass the separation of powers; the uses of recognized political opposition; the virtues of representative over direct democracy; the plural, potentially conflictive forms of accountability required in a democratic system; and what Waldron describes as a chastened space for judicial review. Even if one does not accept the book’s more ambitious claims, these chapters contain a wealth of insight, detail, and sharp-eyed argument.
An important question is whether Waldron thinks all these design elements are necessary elements of “articulated” governance, or merely useful ones? Waldron comes close to a claim of necessity when he says that “[t]o insist on being ruled by law is, among other things, to insist on being ruled by a process that answers to the institutional articulation required by the separation of powers.”
As I have already intimated, I think a weaker version of this claim is surely plausible. All of the institutional design decisions discussed in the book are naturally understood as common elements of a well-functioning democracy. Many (but not all) of these are elements of all observed democratic regimes. And it is hard to imagine meaningful democratic governance without any stable, articulated institutions. Waldron writes persuasively of the need to “slow down” governance into “an orderly succession of phases” that follow one another “in due form.” It is the staggered and plural quality of democratic process that opens up channels for diverse perspectives, both social and institutional, to enter.
But I am not sure that all of the elements Waldron identifies are, in his view, necessary to democratic constitutionalism. There are many strategies of articulated institutional variegation than can yield staggered and institutional plural government. Waldron’s list is exemplary, not exclusive. In the American context, federalism may be an especially salient alternative. (It is not by coincidence that James Madison’s famous defense of the separation of powers in The Federalist 51 veers without warning into a discussion of the ‘extended republic’ as a check on inimical factions). In contrast, some of the design elements Waldron surfaces seem secondary. His “antiperfectionalist” argument for bicameralism, for example, rests in large measure on its enabling of two different draws from the representative well, reflecting two different slices of the polity. It doesn’t seem unreasonable to think there are other ways of securing pluralism of representation, including the creation of multiple layers of subnational government.
To press against the claim of necessity a bit more, it may well be that there can be too much “articulated governance” for our good. It is a commonplace in political science that separation-of-powers systems can prove unstable because the very plethora of veto-gates created by institutional differentiation leads to paralysis, inaction, a demand for a strong-man. So there may well be conditions under which, say, bicameralism does harm than good.
Threats to democracy need not come from the demagogic populist, recent experiences on both sides of the Atlantic to one side. As Waldron notes, they can also flow from what many take to be a key figure in the separation of powers—the judge. Waldron roundly condemns a ‘strong’ species of judicial review of constitutional questions. But in the U.S., the latter can be observed coexisting with democracy, and can even be said to rest on “political” (i.e., democratic) foundations. Our hedged democracy is still (for now) a tolerably well functioning one.
And it is telling that Waldron would not do away with courts with power to rule on constitutional questions completely. Rather, he carves a distinction between (acceptable) judicial review of executive action and (undesirable) review of legislative action. A quick review of the case reporters reveals that in most instances, at least in the U.S., courts analyze the constitutionality of a law in the course of considering the validity of a discrete action taken by an official within the executive branch. As a result, there is often substantial overlap between judicial review of executive actions and legislative decisions. It is not hard to see how the threat to democracy Waldron ties to judicial review of legislation could leak in via his acceptance of judicial review of executive action.
An alternative (and perhaps better) reading of the book, therefore, may be that the institutional predicates of a well-functioning democracy have an unavoidable vagueness to them. Just as it is impossible to identify the number of grains of sand necessary to create a heap of sand, so it is not helpful to count out precisely each grain (ungluing it from its neighbors in the effort), or to ask how many elements of “articulated governance” are needed to render a polity tolerably and sustainably democratic. ‘Quite a few,’ seems the right answer usually (although perhaps ‘more than we had thought’ also seems a sensible response to current predicaments on both sides of the Atlantic).
As a corollary, I think it would be a mistake to try to use Waldron’s prescription for ‘articulated governance’ as a litmus test to determine whether specific institutional arrangements are legitimate. For example, Waldron has a lot to say against judicial review as a threat to the legislature as the proper seat of democratic debate, but comparatively little to say about the administrative state. By dint of statutory delegation, the latter probably does far more ‘legislating’ than the federal courts. It is hard to accept Waldron’s thin and dismissive passage on the matter as a final word. Rather, the glittering showcase of institutional furnishings that Waldron arranges is better understood in aspirational terms: It is a showroom, immaculate and idealized as they tend to be, and not a live-in, nicked and crevassed actuality.
Let’s circle back to our contemporary practice, and ask again why one presidential candidate in particular might seem especially threatening. A metaphor now, distantly related to the Sorites paradox, is useful. Democratic governance, as Waldron limns it, is usefully seen as akin to Theseus’s ship. It is changed piecemeal on its voyage as minor repairs are made, and yet arguably remains the same ‘ship’ even when all its original stuff has been replaced. The fixes are needed because the vessel is not perfect when it leaves port, and so needs fixing on the go. (This was, as it happens, the view of constitutions taken by David Hume and James Madison alike). At the same time, the vessel demands a certain number of institutional elements to keep it afloat as a going concern: Not everything can be changed at once if we are to remain afloat.
By analogy, a shared project of civic (and civilian) verbal and electoral contestation over public policy that endures over time is jointly sustained by some blend of the diverse elements enumerated by Waldron. It is usually possible to tinker, or even extricate, one element without compromising the vessel. At the same time, the elements of articulated governance Waldron identifies are as a collective necessary, even if, individually, they may be suspected at least for a time.
Any plausible argument that we’re on the same ship (or engaged in the same democratic enterprise) collapses, however, if we dynamite the vessel to begin anew—or perhaps if several elements of articulated governance are simultaneously scrapped. Similarly, a candidate or leader who proposes to disassemble all brakes on political transformation, or dismantle all channels of diverse democratic participation at once, is plausibly described as unfaithful to the project of democratic constitutionalism. To quote Waldron once more, anyone who says “Now there is just you, and me, and the issue of my greatness” has scuttled our collective enterprise, our going democratic concern.
Posted on 18 July 2016
AZIZ HUQ is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School. His co-edited book, Assessing Constitutional Performance, will be published in July by Cambridge University Press.