One cannot overemphasize the extent to which the civil rights era legitimized judicial review. For most of American history, judicial review was profoundly conservative. Federal courts issued hundreds of rulings voiding wage and hour laws and busting unions. In the depths of the great depression, they ruled that the National Recovery Act overstepped Congressional authority. Brown made normal Americans forget about how judges had acted for the past seventy years.
This century, the Supreme Court kept Florida from recounting votes, sealing a Republican presidential victory, ruled that rich people can spend as much as they like on political advocacy, and kept millions of poor people from getting Medicaid.
Now that Roe is gone, I hope progressives will see judicial review is generally at odds with effective governance.
Long time listener, first time caller. Great essay, as usual. One beef. This "illegitimate" language is incorrect and is analogous to Trumpers and "Stop the Steal" nonsense. Legitimacy in the US is determined by legality, full stop. In your scenario, if the elections were conducted legally, contested issues were resolved by courts, and so on, then the R majority "regime" would be in fact "legitimate" under the Constitution/laws of the US. That may be unfair, unrepresentative, morally wrong, whatever, but it would be legitimate.
"The American Constitution embeds a fairly undemocratic set of institutional practices. It is quite possible that in 2024, Republicans could get 49% of the two-party vote and based on that, secure the White House and a bicameral majority in Congress. If that comes to pass, I think peaceful protest will become a crucial part of political resistance to a fundamentally illegitimate regime."
Whenever I encounter the word "democracy" in this essay, I'll just mentally expand it to the phrase "representative democracy," and then many of the obvious objections go away.
I'm not convinced the judicialization is merely a reflection of a court fetish. I think it may be an inevitable consequence of a lack of broad social consensus on many issues and a lack of trust in elected officials.
We don't have the same level of shared cultural values the Germans do and the only thing we do seem to agree on is that elected officials can't be trusted and will either sell us out to corporate lobbyists or to the liberal elites if we don't carefully watch them. Process is a way of limiting the ability of elected officials you don't trust to sell you out.
The post makes a lot of important points, but I would like to gently push back that protest is a sign of democratic failure. It *can* be, of course, and was in the case that Matt cites (namely, segregation). Most of the time, though, it's a tool utilized by a passionate minority to draw attention to issues that either do not yet have majority support or that the majority simply hasn't thought about.
I happen to agree that protest is what "democracy looks like," insofar as I would expect a democracy to include robust protections of free speech and vibrant citizen engagement. Democracy isn't orderly voting OR citizens taking to the streets: it's both. Matt cites the Berlin elections he observed as an example of democracy, but Berlin is also home to seemingly unending stream demonstrations. I'd expect a healthy democracy to feature orderly elections with a meaningful degree of choice among the candidates, a responsive bureaucracy and court system, robust protections for civil liberties, including speech and the right to protest, and an engaged citizenry with decent participation in grassroots issue advocacy groups and yes, protests.
Of course demonstrations can backfire, but the same can be said of any form of protected speech (like an offensive tweet or whatever).
All true and very well stated. However, there's a fine line between "thwarting all progress and making it impossible to build" (which is essentially where we are now) and "Robert Moses doing whatever the hell he wants in NY from 1925-1968" (see The Power Broker). That's an extreme example, but I get the sense that a lot of the community protest movement derived from upper-middle class citizens seeing the results of all that building and deciding they need a voice too. So where do you draw that line? I have no idea... I didn't live through the first half of the 20th century and don't remember the pendulum at the other end. But damn, do I wish we could do something about it now.
I was at a conference last week examining the long term legacies of the 1975 Asilomar Conference on Recombinant DNA, which winds up playing a major role in both US and global regulatory frameworks for research on GMOs and GEOs, and the topic of the 1976 Cambridge lab controversy came up. Essentially, a group of elite academics believed the biocontainment protocols established by Asilomar and ratified by NIH guidelines were insufficient given perceived potential risks and so they went about organizing opposition through a group known as Science for the People, which spoke in the name of the public interest *against* the alleged elite research programs of the dominant voices at Asilomar. In 1976, Harvard wanted to build a new high containment lab for research on recombinant DNA and Science for the People mobilized in opposition to the proposal, in what is now considered one of the earliest and most effective anti-GMO mobilizations. (In fairness to SftP, I don't think NIH had yet completed its review of containment procedures for the class of research designated for the facility when the controversy started).
The mechanism for their opposition? Cambridge's municipal land use regulation scheme, with Science for the People mobilizing at a series of city hearings that resulted in a municipal land use statute restricting the construction of buildings designated for research on recombinant DNA, a statute that Harvard complied with when it eventually constructed the facility.
On the balance, the outcome seems relatively good and perhaps democratic, but I think it's fascinating and completely symptomatic of post-1970s urban political economy that land use regulation, in the name of a thinly articulated "democratic participation," became the arena to contest a set of questions only tenuously related to it around the politics/ethics of genetic modification and scientific authority. The rhetoric of SftP was very much "the *people* should participate in scientific regulation" but "people" functionally meant municipal land use regulators, an instrument for public oversight of scientific integrity that seems both farcically lax (it's cheaper to buy a member of the local board than a NIH director!) and poorly formed (what does someone with, say, a masters in urban affairs know about the relative biocontainment risks posed by this research?).
I agree about the broad point about democracy here, but I think NEPA in particular is more challenging. From the perspective of the democratically elected Congress in 1970, who wanted to make federal agencies care more about the environment, it's not obvious what they could have done instead.
One possibility is just have a resolution expressing their feelings but with not teeth, which is in some sense the logical conclusion of trusting future democracy. Another possibility is Congress could specify all the rules: here's when you can build a road in a national forest, here's how far power plants should be away from other things, etc. They could have given everyone a judicially enforced right to a clean environment, which would have reduced the quantity of paperwork but not of lawsuits.
The NEPA status quo is obviously bad, but I think the goals are worthwhile and challenging to achieve so it's worth thinking about how to do better.
Regarding public input, the take that I've landed on is that all of it should be in writing and none of it in person. If you want to email a screed to government officials as to why a possible action they'll take is bad, go right ahead, but you shouldn't have the ability to grandstand government officials. Especially when you might have the ability to take considerable time out of your day to attend a meeting, while others cannot.
And on that last sentence, if I really want to ramp up the Scoville heat units, I could make an argument that there are Equal Protection Clause issues in play there. (Tying this back to another leading topic of this article, judicial review!)
Matt's written - persuasively! - in other columns that climate change particularly enjoys a degree of elite support that isn't necessarily shared in the general population. That seems to imply that it really would be possible to quietly appoint a bunch of climate-change-conscious judges who'll hand down rulings that go further than a straightforward majority of the population would likely endorse. Or did I miss something?
I don't know how to expand on this, but these weird fluid democracy arguments have been increasingly bothering me lately. They usually opportunistically dovetail with media populists and demagogues ginning up outrage about the "bureaucrats" and the "technocrats" and and the "deep state" and the "elites" and all the anti-intellectualism that always rhetorically transforms to finding the next indefinite boogieman that'd be impossible to root out. They always bring up these objections when it's the wrong type of person making a fiat decision based on their expertise, and then are ready to obscure all the other backroom decisions made by rank-n-file people that don't bother them. It's not like there's a national campaign about how civil engineers are conspiring to ideologically build all the roads in the wrong place, with too much water mitigation, and not enough local materials.
But at some point, if these un-elected work-a-day blobby experts really are the problem of the American democratic experiment, I guess we'll get there.
One cannot overemphasize the extent to which the civil rights era legitimized judicial review. For most of American history, judicial review was profoundly conservative. Federal courts issued hundreds of rulings voiding wage and hour laws and busting unions. In the depths of the great depression, they ruled that the National Recovery Act overstepped Congressional authority. Brown made normal Americans forget about how judges had acted for the past seventy years.
This century, the Supreme Court kept Florida from recounting votes, sealing a Republican presidential victory, ruled that rich people can spend as much as they like on political advocacy, and kept millions of poor people from getting Medicaid.
Now that Roe is gone, I hope progressives will see judicial review is generally at odds with effective governance.
Long time listener, first time caller. Great essay, as usual. One beef. This "illegitimate" language is incorrect and is analogous to Trumpers and "Stop the Steal" nonsense. Legitimacy in the US is determined by legality, full stop. In your scenario, if the elections were conducted legally, contested issues were resolved by courts, and so on, then the R majority "regime" would be in fact "legitimate" under the Constitution/laws of the US. That may be unfair, unrepresentative, morally wrong, whatever, but it would be legitimate.
"The American Constitution embeds a fairly undemocratic set of institutional practices. It is quite possible that in 2024, Republicans could get 49% of the two-party vote and based on that, secure the White House and a bicameral majority in Congress. If that comes to pass, I think peaceful protest will become a crucial part of political resistance to a fundamentally illegitimate regime."
I love the subhead from Dayen's piece: "The goals of domestic supply chains, good jobs, carbon reduction, and public input are inseparable."
It's weird to me that so many progressives really try to convince themselves that the public meaningfully wants carbon reduction.
Whenever I encounter the word "democracy" in this essay, I'll just mentally expand it to the phrase "representative democracy," and then many of the obvious objections go away.
It’s nice being on east coast time and reading these posts over coffee. Soon I will return to the land of 3am SB posts.
So Matt believes in the "trustee" model of representatives rather than the "delegate" model. Edmund Burke would be proud.
I'm not convinced the judicialization is merely a reflection of a court fetish. I think it may be an inevitable consequence of a lack of broad social consensus on many issues and a lack of trust in elected officials.
We don't have the same level of shared cultural values the Germans do and the only thing we do seem to agree on is that elected officials can't be trusted and will either sell us out to corporate lobbyists or to the liberal elites if we don't carefully watch them. Process is a way of limiting the ability of elected officials you don't trust to sell you out.
The post makes a lot of important points, but I would like to gently push back that protest is a sign of democratic failure. It *can* be, of course, and was in the case that Matt cites (namely, segregation). Most of the time, though, it's a tool utilized by a passionate minority to draw attention to issues that either do not yet have majority support or that the majority simply hasn't thought about.
I happen to agree that protest is what "democracy looks like," insofar as I would expect a democracy to include robust protections of free speech and vibrant citizen engagement. Democracy isn't orderly voting OR citizens taking to the streets: it's both. Matt cites the Berlin elections he observed as an example of democracy, but Berlin is also home to seemingly unending stream demonstrations. I'd expect a healthy democracy to feature orderly elections with a meaningful degree of choice among the candidates, a responsive bureaucracy and court system, robust protections for civil liberties, including speech and the right to protest, and an engaged citizenry with decent participation in grassroots issue advocacy groups and yes, protests.
Of course demonstrations can backfire, but the same can be said of any form of protected speech (like an offensive tweet or whatever).
All true and very well stated. However, there's a fine line between "thwarting all progress and making it impossible to build" (which is essentially where we are now) and "Robert Moses doing whatever the hell he wants in NY from 1925-1968" (see The Power Broker). That's an extreme example, but I get the sense that a lot of the community protest movement derived from upper-middle class citizens seeing the results of all that building and deciding they need a voice too. So where do you draw that line? I have no idea... I didn't live through the first half of the 20th century and don't remember the pendulum at the other end. But damn, do I wish we could do something about it now.
I feel like there's one of those "you can only pick two" triangle situations going on somewhere in this sentence:
"fair political system paired with a competent state and empowered leaders"
Good post.
I was at a conference last week examining the long term legacies of the 1975 Asilomar Conference on Recombinant DNA, which winds up playing a major role in both US and global regulatory frameworks for research on GMOs and GEOs, and the topic of the 1976 Cambridge lab controversy came up. Essentially, a group of elite academics believed the biocontainment protocols established by Asilomar and ratified by NIH guidelines were insufficient given perceived potential risks and so they went about organizing opposition through a group known as Science for the People, which spoke in the name of the public interest *against* the alleged elite research programs of the dominant voices at Asilomar. In 1976, Harvard wanted to build a new high containment lab for research on recombinant DNA and Science for the People mobilized in opposition to the proposal, in what is now considered one of the earliest and most effective anti-GMO mobilizations. (In fairness to SftP, I don't think NIH had yet completed its review of containment procedures for the class of research designated for the facility when the controversy started).
The mechanism for their opposition? Cambridge's municipal land use regulation scheme, with Science for the People mobilizing at a series of city hearings that resulted in a municipal land use statute restricting the construction of buildings designated for research on recombinant DNA, a statute that Harvard complied with when it eventually constructed the facility.
On the balance, the outcome seems relatively good and perhaps democratic, but I think it's fascinating and completely symptomatic of post-1970s urban political economy that land use regulation, in the name of a thinly articulated "democratic participation," became the arena to contest a set of questions only tenuously related to it around the politics/ethics of genetic modification and scientific authority. The rhetoric of SftP was very much "the *people* should participate in scientific regulation" but "people" functionally meant municipal land use regulators, an instrument for public oversight of scientific integrity that seems both farcically lax (it's cheaper to buy a member of the local board than a NIH director!) and poorly formed (what does someone with, say, a masters in urban affairs know about the relative biocontainment risks posed by this research?).
I agree about the broad point about democracy here, but I think NEPA in particular is more challenging. From the perspective of the democratically elected Congress in 1970, who wanted to make federal agencies care more about the environment, it's not obvious what they could have done instead.
One possibility is just have a resolution expressing their feelings but with not teeth, which is in some sense the logical conclusion of trusting future democracy. Another possibility is Congress could specify all the rules: here's when you can build a road in a national forest, here's how far power plants should be away from other things, etc. They could have given everyone a judicially enforced right to a clean environment, which would have reduced the quantity of paperwork but not of lawsuits.
The NEPA status quo is obviously bad, but I think the goals are worthwhile and challenging to achieve so it's worth thinking about how to do better.
Regarding public input, the take that I've landed on is that all of it should be in writing and none of it in person. If you want to email a screed to government officials as to why a possible action they'll take is bad, go right ahead, but you shouldn't have the ability to grandstand government officials. Especially when you might have the ability to take considerable time out of your day to attend a meeting, while others cannot.
And on that last sentence, if I really want to ramp up the Scoville heat units, I could make an argument that there are Equal Protection Clause issues in play there. (Tying this back to another leading topic of this article, judicial review!)
I always assumed that this is what Republicans meant whenever they say (irritatingly) that “we don’t live in a democracy, we live in a republic.”
Matt's written - persuasively! - in other columns that climate change particularly enjoys a degree of elite support that isn't necessarily shared in the general population. That seems to imply that it really would be possible to quietly appoint a bunch of climate-change-conscious judges who'll hand down rulings that go further than a straightforward majority of the population would likely endorse. Or did I miss something?
I don't know how to expand on this, but these weird fluid democracy arguments have been increasingly bothering me lately. They usually opportunistically dovetail with media populists and demagogues ginning up outrage about the "bureaucrats" and the "technocrats" and and the "deep state" and the "elites" and all the anti-intellectualism that always rhetorically transforms to finding the next indefinite boogieman that'd be impossible to root out. They always bring up these objections when it's the wrong type of person making a fiat decision based on their expertise, and then are ready to obscure all the other backroom decisions made by rank-n-file people that don't bother them. It's not like there's a national campaign about how civil engineers are conspiring to ideologically build all the roads in the wrong place, with too much water mitigation, and not enough local materials.
But at some point, if these un-elected work-a-day blobby experts really are the problem of the American democratic experiment, I guess we'll get there.