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.
Thank you. I know the legend of Citizens United (which I assume is what is being referenced in the 'rich people can spend as muchb as they like' component) has greatly outgrown the facts of the case in people's imaginations, but it's worth mentioning that the government conceded in oral argument that McCain-Feingold could be used to suppress the publication of books.
I think net neutrality is the only issue that has a bigger ratio of "people who are mad about this" / "people who understand this" than Citizens United.
The CU opinion itself is also actually a pretty good one as opinions go—it pretty clearly lays out why, regardless of the normative implications of the ruling itself, it’s a natural corollary of the (much earlier) Buckely v. Valeo decision.
That's the thing, it was wholly consistent with Buckley v. Valeo. You can think that decision was bad too (Stevens certainly did!), but it wasn't some groundshaking change in precedent.
Citizens United was a well chosen test case. The idea that one can’t market a movie criticizing a candidate within 60 days of an election is problematic. And yes, the law was very poorly and broadly drafted.
Of course the SCOTUS could have just issued a narrow ruling saying that the First Amendment protects the right of film makers to make political films and deferred ruling on other forms of political advocacy to future rulings.
It’s hardly absurd to think that popular entertainments like books, theater and movies might enjoy greater first amendment protections than 30 second TV ads.
There could also be a distinction between money losing activities (eg buying ads that aren’t even intended to generate revenues) and activities that are either non-commercial (unpaid writing or speaking) or undertaken for a profit (publishing, movie distribution).
Fair minded jurists could craft rules to let people express political ideas while discouraging rich people from paying to amplify their message.
By rich people do you include owners of newspapers, magazines, and broadcasting entities? If not, why not? I stand with the jurist who said no means no.
Media moguls will inevitably have outsized influence. There will always be someone making editorial decisions and that person will have cultural power in line with their platform’s reach.
The question, in my mind, is how much influence rich amateurs should be able to buy. The fact that editorial decisions are an inevitable expression of power does not mean that everyone with nine figures should be able to rent a megaphone come election time.
The other side of the issue of not putting out a movie “criticizing” a candidate within 60 days of an election is that the US protects freedom of speech even when that speech is false and defamatory, if the subject is a political candidate. Allowing such unlimited “criticism” has brought us to a point where most people regard most political candidates as hopelessly dishonest and corrupt, which is one of the things that makes it so hard to have a functioning representative democracy.
I still am in awe that there wasn't anyone that concurred in the judgment by saying that the restriction of Hillary: The Movie was clearly an as-applied First Amendment violation, while declining to answer the broader facial challenges immediately. My guess has been that Stevens, who along with Byron White back in the day when Buckley v. Valeo was decided, was one of the justices thought pretty much any regulation in this regard could fly, and he was passionately able to keep the other three dissenters in dissent instead in concurrence in the judgment. We'll see if I'm right or wrong when Stevens's papers from that term get released.
Eh, the SCOTUS gutted Civil Rights legislation & constitutional amendments post-Civil War. The damage they did there fighting the democratic branches outweighs basically everything.
Given the process for appointing justices the SCOTUS is now basically a permanent anti-democratic institution. Both parties see using the courts as a primary tool, as Matt explained, for passing the agenda they can't get through the elected branches.
This is bad on multiple fronts. First, it reduces pressure to actually reform the non-democratic elected branches (Senate). Second, democratic accountability is a good in and of itself. Third, there isn't much reason to think government via SCOTUS will lead to better outcomes (even if you don't place much value on democracy), instead it will work to enact the preferences of the highly educated conservatives/libertarians with GOP SCOTUS (war on New Deal) and preferences of the highly educated liberals with DEM SCOTUS (if we ever get one).
Maybe but only because of the non-democratic Senate. The solution isn't government by the non-democratic SCOTUS/civil litigation but destroying the non-democratic Senate.
I think 2022 should make people's senate model adjust a bit, by 2015 Gay marriage is a 60-40 issue according to most opinion polling. I'm skeptical it'd take us longer than Germany, which is also a democracy.
To state my priors, I think strong judicial review is popular with people who place low priority if any on democracy (meaning, policy should be set by elected officials).
I think you're wrong that not many people liked all three. Those three cases are all compatible with a form of libertarianism that has appeal in both parties. A lot of highly educated Americans really like Civil Rights and dislike labor unions.
10 years later, and you really think congress is de facto getting more likely to have legalized gay marriage or any other anti-gay discrimination laws instead? They can't even manage to legalize abortion, let alone the variety of other ways people should have the liberty to make their own families, as they choose.
If the supreme court is so forward thinking, let's see what happens with this Creative 303 v Elenis ruling.
Creative 303 v Elenis is a complicated case between artistic freedom and public accomodation laws that could have unintended consequences if Creative 303 loses. I don't envy the court on threading the needle here.
Reading the summary you posted below on FirstThings I think:
1) The web designer, like the baker, is in the wrong here.
2) If I had to decide narrowly what to do in this one case I'd be inclined to say the web designer should not do wedding announcements at all if she must discriminate against couples like mine.
3) I don't know how to draw a clean line here - what is "right" on a case-by-case basis isn't always able to make a clean ruling.
You're really going to repeat the rhetoric of "artistic freedom" of a commercial service, and the vague and spooky "unintended consequences" line of if this business is allowed to discriminate against gay marriage in a hypothetical injunction?
If it's really such a hard needle to thread, what artistic choices are restricted in a gay marriage?
And if there's unintended consequences to this ruling, how do you know all of these unintended consequences to the negative outweigh the unintended consequences to the positive?
Not in every state and not so fast. In the meantime a significant minority of Americans were denied basic rights. Obergefell was a landmark ruling to be celebrated. It made a very tangible very dramatic very positive impact.
The big obstacle to this was one-party states and the entrenchment of the Bush II era hostility to same-sex marriage through state-level constitutional amendments. It's an interesting question what role judicial review would have in an ideal constitutional system (I think the answer is "not none" but probably a lot less than what it has now) but in the US system it's a corrective for other constitutional defects too.
I think this needs to come with the huge caveat that most cases that come to the Court are about economics not social issues (is this regulation constitutional, rights of labor unions, is this environmental law about protecting watersheds constitutional to pick a recent example). Most are about pretty arcane issues that don’t necessarily have any real partisan aspect to them (at least not directly) and so are often decided 9-0 or a split that cuts across usual partisan divides on the court. But in general yes, the Supreme Court has been pretty profoundly conservative in its more economics based decisions.
I’ve beaten this drum many times but the Federalist society project is much more about Lochner than it is about Roe. Also, just further indicates that the Op-Ed Alito wrote in WSJ is comically absurd. It’s like he’s trying to gaslight us that the only issues that come to the court are front page social issues and that Paul Singer had no direct interest in any court cases which is just manifestly false.
I'm not remotely a progressive. But either you have an organ empowered to enforce the Constitution or you don't have a Constitution. I get that for some this is a feature rather than a bug, but not for me.
The Netherlands is the only country that I noticed on that list of no judicial review for which I have a favorable mental association with their governance (In some cases I just don't know - is Vietnam well governed?)
The Netherlands is in the EU - does it have defacto judicial review from EU membership? (At least for EU laws)
Or did you mean some column there other than the "no judicial review" column?
My mind is drawn to the court case "State of the Netherlands v. Urgenda Foundation" where a court effectively forced the Dutch government to meet a specific carbon reduction target, as an interpretation of much more broad national and EU laws regarding "a clean environment", "human rights" etc.
It struck me as pretty extreme judicial activism, even by American standards.
I guess the government could have repealed those laws, but that doesn't seem very likely/practical, not to mention the EU laws also cited by the court case.
My conclusion is that even in countries that may not have judicial review in the sense of blatantly striking down laws passed by the elected representatives, courts often still have a large role in setting government policy.
All of Europe is subject to the EU Court of Human Rights, which is not reflected in your link- their judicial review is super-national instead. Even Britain's still subject to the court, just because they're afraid of how angry the EU would get if they decided to ditch it
It’s a little more complicated than that. As just one example, the Good Friday Agreement requires that the European Convention on Human Rights (the treaty that creates and empowers the Court of Human Rights) to be part of the law of Northern Ireland. It’s not just that the EU would be mad.
Strong constitutional law review is justifiable if amending the constitution was much easier. If you could pass an amendment to the constitution with 55% of the house vote I wouldn't have any issues. But you can't. Instead you need basically 90% consensus.
Hi, genuinely curious: why the negative statement of identity? Perhaps I’m missing something, but your statement stands, to my thinking, quite well on its own.
"I hope progressives will see judicial review is generally at odds with effective governance." In the comment I replied to.
I'm not trying to change that commenter's mind. Progressives have never particularly cared about the Constitution, seeing it as an obstacle rather than a lodestone. Rather, everyone else.
That’s not true--during the era when the judiciary was mostly appointed by Democrats, there was great respect for the Constitution and the courts among progressives. The Constitution has features that appeal to liberals and others that appeal to conservatives, and people who claim to believe in the Constitution usually have a very selective reading of it, or great faith in the current judiciary being on their side.
Because one of the key things the Constitution does is limit the power of Congress. Those limits would be basically worthless if Congress was the one who was responsible for deciding whether they mattered in any given situation.
“…they ruled that the National Recovery Act overstepped Congressional authority”
They ruled correctly. And perhaps one day soon we’ll get the Supreme Court to rectify that and return to a more proper understanding of the Commerce Clause.
>Now that Roe is gone, I hope progressives will see judicial review is generally at odds with effective governance<
I long have.
We can't jettison judicial review, I think, in a polity that maintains separate, coequal branches (and eschews legislative supremacy). But we might consider a supermajority requirement for judges to strike down or alter congressional enactments. This in not unknown in America at the state level, and would also be in keeping with Marbury v. Madison,, which was a 4-2 decision.
The branches are not coequal in terms of their formal "hardball" power under the structure of the Constitution; that is a myth, although it may be in the interest of some to repeat it, to the point that it has taken on a life of its own and become a certain practical reality.
If you read the Constitution with eye towards which branch has the formal last word on any given issue, their power pretty reliably tracks the order in which they appear in the document, and that's no accident: Article 1-Congress, the most democratically chosen branch, has the power to unilaterally remove from office any member of the other two branches, and so has the final say on everything if push comes to shove. Article 2-the President, has first pick on choosing members of the judiciary, but subject ultimately to what Congress wants, as with legislation. Article 3-the unelected, life-tenured judiciary, is last and least democratic, and as much as possible really should try to leave the policymaking to the elected branches and see itself as the umpire or referee with no policy preference other than the being the institution tasked with enforcing the structural design and rules of the road of our government.
People don't scoff at the very idea of an impartial basketball referee, as the article earlier this week illustrated, even the perfect impartiality is not possible. Why should the expectation and aspiration be different when it comes to other kinds of judging?
I'd say that the reason the Court has accrued such power is that the written Constitution is so incredibly difficult to amend, and so dated in the context of a modern society with instant communication, near-instant movement of people and goods, and impossibly monolithic cultural and social trends, that the Court has become the vehicle through which each coalition attempts to informally change it.
That's a problem, or at least a potential problem. The document has served us well, yes, but that is in part because the Court has just fundamentally changed the way in which it's understood many, many times over the last two and a half centuries. I am not sure if that will continue to serve well in the future, though a close reading of the history of our party politics suggests that the current era is not really an outlier when viewed against our whole history, only against the history of the last fifty years (itself an outlier really).
I'm not sure *how* to appropriately respond to the Court's current role, but understanding why it has that role is important.
Full agreement. SCOTUS power really depends on the impossibility of Constitutional Amendments.
The impossibility of amending our constitution is under-appreciated. Excluding the Bill of Rights, whose passage was required for the Constitution to be adopted, we've only amended 17 times in over 200 yrs.
Of those 17, 4 were non-partisan, procedural changes (12, 20, 25, 27). 3 only passed because the Civil War (13-15).
We've only passed 1 amendment in the last 50 years.
The bar to amending the constitution is just to high. Which is why, as you said, neither party even bothers with constitutional amendments anymore. It is just understood that the way you amend the constitution is for the Supreme Court.
Conservatives genuinely hated Roe in a way racial progressives hated the civil rights cases (19th Century). Both sides knew amending was impossible and the only way was getting a new court.
Long-term, the US has to find a way to make our institutions more democratic rather than rely on workarounds.
Beyond the outsized power of the Court due to difficulty of amendment there is the Elephant- in- the -Room problem of the unamendable part of the Constitution-namely the last sentence of Article V (equal suffrage of states in the Senate), which dooms us to a very undemocratic reality for the forseable future.
You realize that Democrats have held the Senate more than Republicans have over the last 20 years and have held the only 60 seat majority during that time period?
Yes- the structural advantage of rural states in the Senate suffrage is finite. For many decades, small vs. large and rural vs. urban divides in US politics did not allign with partisan interests- but now they clearly do, and this makes the structural advantage of small states in the Senate more salient. But I agree, it's not everything.
I always argue that this clause still allows for the abolition of the Senate: equal suffrage still is maintained, that equal suffrage just happens to be zero.
And although my Googling skills are eluding me on this right now, I seem to recall someone asking Antonin Scalia what would happen if an amendment created unequal suffrage in the Senate, and that he said that if it got that far (obviously highly unlikely), there's no way that SCOTUS could practically stand in the way.
So, your argument is that, rather than changing the senate state suffrage ratio, the senate could just be-abolished, or turned into a House of Lords powerless body? How would/could that even happen within the structure mandated by the Constitution?
Mostly disagreed. The nature of party coalitions has proven so changeable that attempts by one side or the other to ensure a permanent advantage based on the selective admission and division of states have been futile.
Either that will again be the case, or the Democrats will briefly take a trifecta after a long period of GOP misrule and end up admitting DC, PR, North, South, and Central California, and Pacifica to address the issue.
Completely agree they're not in reality coequal by design. I was repeating it in the "it's become reality" sense you indicate.
I personally wouldn't have a problem with jettisoning US-style judicial review altogether if it came to it. On the other hand, it's hard not be impressed (and even moved) by Justice Marshall words on the topic. How, indeed, is a Congress run amok to be checked? So I could live with merely curbing or regulating this power.
I think the use of J.R. has become too frequent. It should be a rare occurrence. If anything, my sense is judicial review is a "natural" place for a supermajority requirement, in keeping with other examples of the highest "powers" held by the other branches (impeachment, veto override, foreign treaties, etc). It's the ultimate power: a nondemocratic tribunal deciding it knows better than Congress on grave matters of public policy. It should be exercised, uh, judiciously.
Very good post. And SCOTUS should exercise it judiciously for another reason: self-interest.
The risk of a constitutional breakdown is under-appreciated. If SCOTUS tries to block Congress/POTUS on a high salience/high popularity issue they really could run into just being ignored.
That hasn't happened in the modern era. But if it does happen I think it will result in SCOTUS being ignored everywhere.
Lifetime appointments are a major part of the problem. If you get an ideological court, given modern life expectancy, it can have power for decades.
A big thing that helped the Supreme Court maintain popularity in the 20th Century was this:
1. GOP POTUS(s) made most appointments; &
2. GOP appointed Justices were much more likely to either drift left (Souter) or just be members of the liberal coalition (Brennan/Blackmun to a much lesser extent Stevens).
That isn't true anymore. After Souter the GOP really fixed point 1. They don't allow their POTUS to appoint secret liberals or justices who will drift).
Given that we have a Court well to the right of the median voter. And going forward I expect the court will always be out of alignment with median voter.
I think your read on the priority of power among the branches is correct, but I'm having a tough time discerning which of Congress or the President is more democratically chosen.
The House of Representatives was originally the only directly elected part of the federal apparatus, note. Not sure how to compare the old Senate system to the idea of an electoral college.
wouldn’t legislative supremacy be better? i keep thinking the uk has done better relative to its resource base and geographic location than we have, and that this may be because their institutions are a bit better
Maybe. But both Canada and Australia maintain forms of judicial review, and they seem to have done ok (Australia's is stronger IIRC because of the lack of a carve out). I should add: I'd like to see root and branch form of the Supreme Court beyond the supermajority idea, so, the less politicized court we'd have if it were up to me would be a more dependably reasonable wielder of this awesome power.
I would take pure, UK-style legislative supremacy over our current status quo, though, yes.
My loose impression is that the Canadian Supreme Court is activist in ways that would not be tolerated in the American political system, e.g., it forced the government to legalize euthanasia.
I dunno. Bush vs. Gore was a pretty activist decision. So was Heller. So was Roe. So was Obergefell. So was Dobbs. And these decisions were "tolerated" in the US, because, what's the alternative? The black robes are like a government unto themselves.
Also, Canada's constitution provides the famous "Notwithstanding Clause" carve-out.
Your last sentence is really key. As this current SCOTUS churns on, lefties are going to see judicial review much more negatively, particularly the younger ones.
But I agree (I think?) with Wendigo and Jasper in that judicial review is a needed tool if we're going to have a Constitution that limits governments from restricting certain rights. It's a tool, and it can be wielded for good or evil.
I'm back on my "Marbury v. Madison was wrongly decided" BS
in 12th grade government class I was immediately struck by how unsympathetic John Marshall's ruling seemed to me. a total invented fiction that created powers *ex nihilo* but which was very cleverly deployed so that its opponents couldn't politically challenge it is an absurd thing to celebrate
Gordon Wood's "Empire of Liberty" has a whole chapter about how Judicial Review didn't emerge ex nihilo out of that one ruling. Rather, many implied it from the text of Constitution from the very beginning, and over the decades between then and Marbury, courts gradually amassed powers that looked increasingly like judicial review until Marbury struck the final blow.
Marbury was clearly right on judicial review, whether or not it was good policy. The idea that it made up judicial review is a widespread myth that is also obviously wrong--look at Article III itself ("arising under this Constitution") or Federalist 78. Marbury wasn't even the first judicial review case. The real controversy is between "judicial supremacist" and "departmentalist" theories understandings of judicial review.
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."
Matt, like most people, has strong normative commitments about how democracy should work, and thinks that constitutionally-prescribed outcomes are legitimate to the extent that they conform to those norms. Legitimacy is a question of justice, not law, and despite what some Inspector Javert-like procedure fetishists think, those aren’t the same thing.
Agreed. Had the maneuvering after the 2020 election led to state legislatures disregarding their state's actual voting in favor of giving their electoral votes to Trump, I would have considered that illegitimate, even had all the maneuvers been technically legal. In that scenario, I would have considered it a "legal coup" and would have taken part and supported street protests, even up to and including violent action directed at those leading the coup. And I say that as someone who strongly opposed the looting and street violence that took place during the summer of 2020.
There is an important difference between "legal" and "legitimate"; and woe to those who don't understand that distinction and go too far in leveraging legal loopholes to achieve their goals. The electoral college is already stretching that distinction to the limit (and some might argue beyond). Anything further than that and there will be a break.
Great, let's empower every individual in the nation to form their own personal opinion of legitimacy and take violent action based on what they come up with
Agreed Wigan about the dangers here. I don't say this stuff lightly. But I think it's important to understand that there are tensions here, and if the legal bubble is pushed too far, it will pop.
To take your example above, I'm not happy about the electoral college, nor the way the Senate empowers the voters of small states at the expense of big ones.
Having said that, as unhappy as I was about Trump's election in 2016 with far less votes than Hillary, I accepted it as legitimate. And would have accepted his reelection in 2020 if he had gotten just enough votes in Georgia/Pennsylvania/Nevada to win those states. And while I'm not happy about the unrepresentative nature of the Senate leading to the current composition of the Supreme Court, I'm not going to violently protest it either.
Having said that, we're not too far from the point where these systems will go too far in empowering minority rule. And if the current system keeps moving in that direction, it will break.
Fair enough, but the example MY invokes -- minority rule by 49% -- hardly seems horrific. Any coalition with that much support would begin more popular than Biden is today.
Also, as long as there is a next election, politicians will care deeply about public opinion.
State legislatures overturning clear majorities might, however, justify armed resistance.
Unless we want to live in an Athenian democracy where every issue is decided by a 50%+1 vote, there will always be ‘undemocratic’ results. Sometimes it’s a bug, other times a feature
You make this sound extremist, when in reality in such a situation it is precisely what the Founding Fathers expected of us and what they did themselves!
If the FF had rebelled because they were 10% of the voting population but only receiving 9% of the vote then I would consider them the extremists.
But what we're talking about is a scenario where all the Democrats have to do is either a) get 1-2% more of the popular vote in an era where 15% of prior voters switch votes and almost 10% are new voters b) figure out how to be competitive in the states they were competitive in 10 years ago.
the Founders had a "a decent respect for the opinion of mankind", if the Declaration of Independence is any indication. And their case for rebellion was made on the basis of notions they believed were valid for all ("we hold these *truths* to be self-evident"), not "their own personal opinion of legitimacy".
The Founders effectively dressed up the opinion of perhaps 40% of the elite of the Colonies as "self-evident truths" and rebelled on that basis.
There is very little evidence that it was an overwhelming majority opinion at the time. It was only afterward, when they'd won and their conception of people's right to representation and legal protections was the norm that the "truths" enumerated in the Declaration of Independence truly became near-universal in first the US and eventually much of the world.
It's profoundly ahistorical to imagine that the Founders were speaking in a language everyone understood and agreed with *while they were doing it.*
The “truths” in the Declaration of Independence were value judgments which were widely disputed at the time that Jefferson wrote it. They’re only self-evident within the ideological framework of Enlightenment liberalism, which was incredibly controversial in the 1770s.
You present this as a reductio ad absurdism, but the sort of activity you’re describing is what creates democracies in the first place, and the implicit threat of violent rebellion is a big part of what keeps them alive. If you like democracy, you have to accept that law-breaking political violence is the correct course of action at least some of the time.
If the GOP got 30% of the 2-way vote, I guess I could imagine some sort of violent response where the 70% would make sure they weren't trampled on. But 49%? 48% and the win coming from EC votes within the previously agreed and established and accepted framework we've all been operating within? How could violence achieve anything other than inviting like responses?
I actually agree with you about violent rebellion not being a pragmatic course of action in the situation that you describe— if you can’t win, you’ll just be getting a bunch of people killed.
But I’ll bite the bullet and say that widespread civil disobedience and nonviolent protest would be a reasonable response to the situation you describe. And I don’t think that the EC is “something we all agreed to”— it’s a weird legacy procedural artifact imposed on us by long-dead people and maintained by a faction that actively wants minority rule.
No he didn't, but calling a government illegitimate pretty clearly lays the groundwork for others to be violent. And as importantly, others are mentioning violence in this same thread
The big difference is whether the rules are well-known before the fact (the EC) or not (how many Americans who follow politics closely knew legislatures could send different EC delegations than their voters had said, prior to Dec 2020?)
The EC is legitimate in a way the “Trump coup” was not
In some universe where the below** was done but was somehow "technically legal," I might agree. I don't, however, see how that could happen and be legal, and it's not what happens in the electoral college/Senate rep context Matt was referencing.
I understand the distinction you and Matty Y and et al are making and in some scenarios would agree. The specific scenario from my O.G. comment and from Matty's piece, however, is not one of those.
**"state legislatures disregarding their state's actual voting in favor of giving their electoral votes to Trump"
Personally, I don’t think there are hard and fast cutoffs. The general principal that I’d use to make these judgments is that elected governments should reflect the overall preferences of their citizenry as well as they can within reasonable feasibility constraints. This grows from a some of the considerations that make democracy a good form of government (majority popular support makes governing and maintaining power easier; having to keep it gives rulers a good performance incentive.)
So, in a political system with just two major viable parties, the one that wins more votes generally has more real mandate to govern— the 2016 election’s outcome pretty obviously fails this basic test. If you have a system with more viable contenders, you probably need to implement mechanisms like proportional representation or ranked choice voting to prevent weird outcomes where you have a ruling government that only 33% of voters cast a ballot for.
I agree bigger margins "mean" something like a bigger mandate, but maybe where we disagree here is that I don't think the difference between 47 and 52 and 50.01 is really all that important.
And I think that difference is really important. Does 50%+1 have some kind of magical power? No. It’s an edge case, where the “majority” candidate is only trivially better at satisfying voters preferences than the losing candidate.
It’s like raising or lowering the drinking age by one day. The effect of a small change would be trivial, but there has to be a line somewhere.
Ok, but if legitimacy is a question of justice, why are we bothering with constitutional government, or representative democracy? Are those things part of justice?
Constitutional government and representative democracy are tools and coordinating mechanisms which we can collectively use to implement a normative vision of governance and resolve conflicts. On balance, I think they’re good things, but particular constitutions and election mechanisms are a means to an end, and we should be willing to revise and replace them when they’re not fulfilling their normative function.
The question of course is what ends and who decides them...which democracy answers by saying a majority, and a constitutional democracy says a majority but some things require a super majority.
Yes, because tyranny of the minority is worse than tyranny of the majority. Its just important for the majority to recognize that we/they are all in the minority about something...
Yes. Most people have some kind of principle-informed view on how governments should work that’s not just “whatever the current system is,” judge particular governments and systems as legitimate based on whether or not they fulfill their principles, and, when given the opportunity, modify systems to better reflect their vision.
Really? To me, it seems obvious that "normative visions of governance" are not ipso facto just, constitutional, or democratic. Can't norms be racist? Can't they be imperialist? Can't they be authoritarian?
"Meaningfully" is a pretty powerful weasel word here. I could easily say there's not a lot of evidence the public "meaningfully" wants explicit carbon dioxide proliferation either. Once upon a time, you could have said that there's not a lot of evidence that the public "meaningfully" wants unleaded paints and gasolines too.
If anything, if the public doesn't have to have some sort of definite position on these things, that's a kind of freedom our duly elected politicians and their horde of experts can provide us.
What exactly are you trying to prove here with your framing?
My point is that many will accept false oversimplifications to avoid cognitive dissonance.
You saw this a lot back when people talked about the Green New Deal. The idea that, actually, the righteous proleteriat wants decarbonization *and also* a whole suite of social spending programs and the only thing holding that back was entrenched greedy special interests was never true, but people felt inclined to pretend that way.
Do you know who generally has decent politics on carbon reduction? Really rich people (look at who donates to climate groups). Do you know who would hate a $0.01 increase in the gas tax? Boring normie voters who like driving pickup trucks.
Dayen suggests a conflict theory model of the world where more democracy, more public input, more unions, etc. would also mean better policies in every way, and that's simply not true. The world is more complicated than that.
What are you even talking about? Where are you getting this image the Green New Deal was about the righteous proletariat? Or this idea that how people donate their money is the most definite indication of their political beliefs? There's "oversimplifications" and then there's overcomplication where you emphasize select and disparate media narratives and representations. I still don't know why you would want to do that? It doesn't lead to consensus or conclusion.
You know who doesn't donate to climate groups? Boring normie voters who drive whatever vehicle's cheap and convenient to get their kids to school, and then get to their wage work job.
But they'd still like food to stay cheap because there's no water shortages, oil shocks, or forest fires.
>But they'd still like food to stay cheap because there's no water shortages, oil shocks, or forest fires.
It really sounds like you don't think there's a tradeoff between climate policy and costs faced by normies. Taking steps to reduce carbon (which is good) will make daily life more expensive for us in the near term. Pretending otherwise is just falling prey to cognitive dissonance.
If you're just going to out of hand dismiss something as "falling prey to cognitive dissonance," then you're not really serious about the myriad ways to reduce carbon emissions, while not increasing costs for normies.
The cost of removing lead from paint and fuel is tiny compared with the cost of decarbonisation. Moreover, the benefits from removing lead accrue to the nation that does these things, whereas there is a free rider problem with decarbonisation.
A 'meaningful' decarbonisation project would involve massive taxes on fossil fuels, vastly greater taxation to subsidise zero carbon energy, and general reduction in living standards. In reality, the public are only willing to tolerate a much smaller dose of that.
This is a really bizarre position. I don't really know where to begin.
But first, if it's really about "cost," the combined cost of not decarbonising is higher than the costs of further CO2 proliferation. The taxes and living standards thing is just not at all accurate. We have the technology to subsidize zero carbon energy in a way that will reduce costs over time.
But you do bring up a good point, voters tend to be chiefly concerned with convenience and intolerance for inconvenience, than any particular policy issue or scientific metric.
I’d say meaningful being what the public considers a high priority and willing to make sacrifices to achieve. Within the Democratic Party, it probably is. With the general public, I don’t think it is. Just an example I googled
The problem is that people are willing to pay, roughly, zero dollars even if they say they want those things. Cleaner vehicles are different because after all they get a brand new car so there's obvious upside.
And even they do meaningfully want a drawback from fossil fuels, pairing it with public input can allow NIMBYism to seep in. "I support windmills, but not where I can see them from my beautiful/solemn view!"
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 am trying to interpret that as Matt's intent. His assertion that the US was not a democracy (or democratic republic) before desegregation is a really bad one. It was a flawed democracy but it isn't remotely a mystery why FDR would understand America as having a fundamentally different system of government than most other places, and certainly different than the other major belligerents in WW2, including our own allies. There's a weird sort of American ethnocentrism that isn't necessarily bad to the extent it forces constructive criticism of ourselves but that can also be almost hilariously oblivious to world history.
Yeah that was a profoundly ahistorical and frankly lazy and stupid assertion of MY. “Arsenal of democracy” is precisely correct at a time when the us armed the allies against the effing Nazis and Stalin the next alternative in a war for literal world domination. He really didn’t seem to have taken the time with this piece.
Folks don't actually realize how rare republican governments that weren't just dictatorships were in 1941. It was basically us and France (for a quarter of the people over whom she ruled), and if we're being charitable about a quarter of Latin America.
"Republican" is unhelpful here because it lets you exclude Belgium, the Netherlands, the Nordic countries, and British dominions like Canada, Australia, and New Zealand (in 1941 several of those countries were under Nazi occupation but so was France). On the same ground you probably want to count Czechoslovakia though it fell under Nazi occupation earlier. Probably others in Europe I'm not thinking of right now
Alright, representative governments. Still astonishingly rare compared to today. You've named literally every single one.
40% the globe's population lived in colonial regimes, 40% in dictatorships like the USSR, Brazil, Argentina, or the ROC, some of which had representative trappings. Some of the remaining 20% was basically free, most especially the US, France, the UK metropole and White Dominions, and some partially so, including a smattering of Latin American nations and white folks in South Africa.
I'm really not sure what the disagreement here is supposed to be because I certainly don't think anyone is saying that the US/British side in World War II wasn't relatively much better for democracy than the Nazis
You'd call it a flawed democracy that falls well short of modern expectations. But you're also making my point for me. It isn't defending Jim Crow to say that even with it the United States was objectively a democratic outlier, considering most of the world still lived under imperialism and the most important parts of it were falling to or threatened by actual fascism and Stalinist communism.
I think you all are missing Matt's point. He's not saying that the US wasn't meaningfully more democratic than many other countries. He's saying that "democracy" such as it was in the US coexisted with really grave violations of democratic principles that meant that reform efforts had to resort to extra-electoral processes like courts to make progress--but at the same time (because of the importance of "democracy" to US civic culture) this wasn't conceptualized as being necessary on account of the *undemocratic* features of the United States. To put Matt's point another way, it's very easy to say that the reason judicial review made sense in the Jim Crow context is that large portions of the public were excluded from political participation, but instead of saying that, American constitutional theory has been obsessed with justifying judicial review conceived of as anti-majoritarian (the so-called "countermajoritarian difficulty"). Matt is saying that's a mistake that misunderstands how Jim Crow worked. He's not saying that America is bad or worse than other countries or what have you.
That’s a silly point though. Judicial review is *always* crucial to prevent elected officials from disenfranchising part of the citizenry or otherwise excessively curbing civil and human rights. Jim Crow is merely one notorious case. The constitution wasn’t framed with one specific aberration in mind but to create a state with a good “immune system” to fight any aberration and to provide nonviolent remedies should they occur. That hasn’t changed since human nature hasn’t and will not change. Power tends to corrupt and needs to be kept in check. You’re welcome to propose a robust alternative to judicial review but to suggest it’s not needed because representatives are elected is worse than sophomoric.
I hear you, and I think there's certainly a more than fair inquiry into just how vexing the legacy of slavery and Jim Crow has been for our legal system. But I also don't know that the specific constitutional questions addessed by judicial review are really the right parallel for the problem of subjecting day to day decision making to endless litigation. That we do that is itself a public policy decision made by elected officials in statutes like NEPA, and is wholly different than the kinds of constitutional issues at the heart of civil rights era court holdings.
Now, Matt isn't a lawyer, and I understand that this distinction may not be one in the forefront of his mind. But these really are two different things and I don't think conflating them helps understand how we got here. There's nothing about SCOTUS' ability to hold a law as unconstitutional for, say, violating the 1st Amendment, that also requires every decision about where to build a power plant or road to go through years of reviews and lawsuits.
Even those states, containing the minority of the us population , were far more democratic than most of the world- it was run by elected officials voted in by a large portion of the population. Every person in that state moreover has recourse to the courts. That’s a far better civil rights situation than what all of Europe was experiencing at the time as well as most other places in the world.
Black Mississippians didn't have recourse to those courts.
A herrenvolk democracy that enforces itself with racial terrorism and violence may indeed provide many of the benefits of democracy to its own herrenvolk. That doesn't make it any less authoritarian, and doesn't erase the stain that authoritarianism leaves on its fundamental legitimacy.
I'd like a source about lack of recourse to courts. Regardless, you are just wrong, and frankly somewhat fanatical, in refusing to see the dramatic difference between a regime based on a franchise of about half the population, has a separation of powers etc.* and one were the word of literally one man is law. in 1941 black people in Mississippi had more freedoms than 99% of the people in most parts of continental Europe. Of course that's one of the darkest periods in history, and is not to say the situation in Mississippi was acceptable (to say the least), but FDR's statement needs to be understood in its historical context, hence the comparison is apt.
(*and that's even ignoring the fact that Mississippi was not a sovereign state but under the federal us which was more democratic still)
Oh I took DT to be taking about how community meetings empowering busybodies with free time was the actual original form of ‘democracy’ (or at least that’s what my Greek reader taught me in 9th grade)
And I think in terms of this essay the tradition of prog love for judges is super important but maybe good to mention this more basic (and ultimately silly) reason people felt community meetings were ‘more democratic’
Exactly, community meetings empower busy bodies and activists. And that’s fine as far as it goes, but you can't mistake that for some sort of representative sample or expression of the broader public.
Agree but would argue that it’s not actually fine. In my experience as a city planner, politicians consciously or unconsciously seem to extrapolate from the people who show up (and of course not too many people show up to argue in favor of a project*).
I think the missing piece here is the political will to take information gathered from disclosure statutes and (to some extent) public meetings and use that information to decide what kind of tradeoffs are necessary for a policy that will get us where we need to go. Unfortunately few politicians now seem willing or able to make these kinds of decisions and defend them.
* Showing up to testify in favor of a project is a really good way to help your community!
I think the truth is in between. Politicians (correctly) understand that people who are using their time to show up to these things are super voters. They are often the basic political unit you can organize around. You won’t rob them of their outsized influence entirely. That’s why the anticipated legal challenges and extra community input solely for the legal challenge is really the core of the discussion. How much more motivated should local pols be by these super voters than, for example, the primary system already makes them? Should their be many additional legal incentives to check in even more?
I know when we talk about this everyone is imagining raucous NIMBY gatherings or school board protests but I have always imagined most meetings going more like this one:
People who show up to community meetings tend to have 1) strong feelings on a subject and 2) enough time on their hands to sit through a community meeting. That is disproportionately older, affluent, empty-nesters.
And these kind of people who are liberal tend to the “liberal NIMBY” types: the ones who have John Muir Syndrome bad, and think that too many icky humans clutter up their pristine landscape (themselves excepted of course!). That was a lot of what went wrong with California in the 70’s. Blame the Sierra Club (only partly kidding). And with this group there is a heavy emphasis on preserving their cities or towns in amber, just the way they were in the 70’s - charming! Quirky! Unique! Cozy! - and definitely not cluttered up with newcomers. (But why can’t our own precious progeny afford to live here?)
Maybe so, and that is also a good point. Of course I am not as convinced that judicial review is quite as anti-democratic as Matt is. NEPA is a statute, not something judges made up. And if elected officials can't bear to occasionally hear from their constituents they should probably be in a different line of work.
Expand it to “liberal democracy” and see that they don’t. Democracy isn’t just about voting every couple of years and letting your representatives do whatever they want with zero accountability mechanisms, as MY seems to suggest. That’s an elementary school understanding and he should know better.
Democracy is a government in which the supreme power is vested in the people. The people of the United States decided to become a republic, and so it remains today. The United States is therefore both a democracy and a republic. And it’s really dumb to say things like, “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’m not mentioning anything new or particularly original. Democracy is and always has been fundamentally about equality under the law (“equal rights”). Elections are but one- crucial- mechanism in ensuring that, but they are hardly sufficient. Checks and balances, free communications and free press, the ability of citizens to assemble and organize - all these are crucial too.
You're conflating democracy and liberalism. They often go together but aren't intrinsically connected. Democracy is the best form of government to ensure liberalism, but democracies are not inherently liberal. India is a democracy, but it is not very liberal.
Thats like saying “you’re conflating democracy and freedom”. They are tow sides of the same coin! India is on the way to stop being a democracy altogether. It’s a “backsliding democracy”. And I’m working with thinking about democracy that goes back to ancient Athens (“isonomia”). To be clear - before I’m yelled at- Athenian democracy is far from meeting the standards of modern democracy (it was a slave society with few rights for women etc) but the connection between popular sovereignty, legal equality, free speech, and mechanisms for transparency and accountability go back all the way to the “cradle” of democracy; imo for deep practical reasons. In the long term you cannot have one without the others.
There are two very obvious truths here, and it seems like you’re getting wrapped around the axel on one of them just because Matt didn’t pay enough lip service to it.
The first is that America was incontrovertibly a flawed democracy during the Jim Crow era.
The second is that America was incontrovertibly the bastion of global democracy during WWII, which overlapped with the late Jim Crow era.
Your whole line of complaint is basically the same thing that Twitter libs do when they “call out” some book about one minority for “erasing” some other minority. Which is something you yourself frequently complain about here.
So, if you’re not telling us anything new, why get so upset about it?
No. MY's whole piece is based on a strawman version of democracy ("majoritarian rule via elections"). It leads him to make one ludicrous claim after another, like thinking the constitutional order is superfluous (as he strongly implies) or that FDR was somehow wrong or blind or misleading in calling the US an arsenal of democracy during ww2. He just wrote a really bad piece today and for that I call him out, like many of us here, you included if memory serves, do whenever they think that's the case.
And I'm calling your opinion out for what is really coming across as a bad tantrum. Sorry, not trying to be my usual asshole self here or anything, but I'm just calling it how I see it.
What’s to guarantee that they are free and fair? That they happen at all? I feel strange explaining these basics. You can’t have free and fair elections without freedom of press and thought and speech and assembly, without the opposition being free to organize and field candidates. Without some mechanism to make sure the elections themselves are being held and the votes counted in an honest and accurate manner.
Elections are one -necessary but insufficient- *means* maintain a democratic regime, they are a means to end but they are not what democracy *is*.
If they aren’t free and fair it isn’t democracy. But also I don’t know who you’re disagreeing with--Matt obviously didn’t dismiss the importance of freedom of speech. It’s like saying “you claim democracy is about elections, but what about making sure the polling places are well-ventilated? It’s not democracy if we can’t breathe!” Yeah, no one disputes that. It doesn’t change the point that the community veto points Matt is talking about are awful.
You continue to not read me carefully. I asked “what’s the guarantee” that they are free and fair? The point is that elections alone are insufficient, because you need giarantee they are free and fair and continue to happen. In the US the courts have been and continue to be the main guarantor for that. MY’s problems is that he doesn’t seem to realize that. In fact he doesn’t seem to realize democracy needs separation of powers, checks and balances, the whole mechanisms to keep it from dying from the inside.
It's an interesting comparison but I don't think it is actually relevant. In either model the elected representative holds power as a result of free and fair elections and is therefore the appropriate person to make the choice rather than whoever shows up at a public meeting.
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.
It's not per se that the judiciary would be more trustworthy if invested with discretion but that it requires alot less trust in good judgement to ask someone if something complied with a long list of formal requirements than to trust they'll do the reasonable thing.
The worry isn't that someone is going to just go completely rogue and ignore the rules but that if the rules just say: make a reasonable deciscion in the public interest their idea of the public interest might diverge substantially from yours or get shaded by inappropriate influences. The judiciary isn't asked to decide what choice is in the public interest, only to check if a long list of rules were followed minimizing (but not eliminating) the effect those biases/values have on the outcome.
It's the same thing as with government procurement rules. Because we are worried about government officials doling out contracts as political or personal favors (and we feel their own interests are less aligned with wise use of funds) we impose more extensive procedures to be followed for bidding on government contracts than private buisnesses do. This naturally ends up landing in court more often.
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 am basically going to take the unpopular position and say that there will never be a situation or an era in which we don’t need a government which can ram a cut-and-cover subway through a crowded neighborhood, force highway widening in populated areas, and string transmission lines through pretty forests.
We’ll have to lean on the fact that we’re no longer all white supremacist assholes to avoid mistakes like I-676 lopping Chinatown in half.
You mean bury transmission lines through forests so they don't catch on fire? And force highway widening to accommodate BRT? If so then I agree... but others may not. By what mechanism do we determine that this constitutes the greater good? And who has standing to protest and/or sue? It's a legitimately tricky question with nowhere near a perfect answer.
This is the ideal world that I wish to live in. It hinges on a government that is biased towards progress and not stagnation (far more likely in a parliamentary system rather than our head of state/two houses of legislature split at state and federal levels). It also hinges on a press corps that covers these sorts of issues with the proper diligence and for people to pay attention to these issues enough to elect other representatives. I'm not optimistic.
I’d go with “the elected government decides that and gets tossed out on its ear next election if it fucks enough of those decisions up” and “no one at all has standing to sue for any reason except unlawful/uncompensated takings”.
I could argue that widening a highway a quarter mile from my house increases the air pollution enough to decrease my quality of life and lower my property value. I could also argue that failure to provide adequate train service a similar distance from my house forces more people to drive and has similar negative effects. Does that constitute an uncompensated taking? Our current system allows people like me to sue over stuff like this or at least to demand reviews.
Your preferences should not be weighted in any way over those of everyone else. You should have *NO* legal or procedural means to attempt to inflict your will or preferences on any project over and above voting for the officials who scope and approve it.
I do not give a flying fuck if you prefer a BRT system over extra travel lanes, or people in NE Philadelphia want the government to bore a tunnel for our proposed subway extensions instead of cut-and-cover, or if someone thinks that random second- or third-growth forest in New England is such a unique ecosystem that it warrants stopping all regional power transmission projects.
They should have the opportunity to express that view in the ballot box and, if they lose, be asked, and then forced if need be, to sit the fuck down and shut the fuck up while the bulldozers come in.
Modernity is completely and utterly incompatible with a vision of the world that allows every single person the standing to scream "STOP!" at will if they just apply a dribble of money or time.
This basically seems like a recipe for uncompensated takings of exactly the sort posted in JWG's first sentence, though. Putative progress generates negative externalities. Legislating away the right to sue for said externalities is.....an uncompensated taking.
You and I are in agreement here, but as I stated above, I'd want to see this paired with a better working government in general (which I'm not optimistic about seeing in my lifetime).
I'll die on this hill, the problem with Moses is not that he had a lot of power, it's that he used the power to build freeways instead of trains. In the same way that Jane Jacobs was bad for being a NIMBY but good for opposing a freeway. As Matt has previously said, there's no substitute for being right about everything all the time.
If Moses had been a modern Tokyo or Amsterdam-style urbanist instead of a racist acolyte of the automobile, he would be a legendary hero.
My own twist on this is that while freeways can sometimes be bad (particularly in the manner that Moses often designed them), what's worse are stroads that try to replicate the high speed of freeways without the safety of controlled access, and we're getting way too many stroads over freeways built these days.
Reminds me of something I've often pointed out to the "[no] money in politics!" crowd:
If Rod Blagojevich had been caught on tape saying that he was going to sell Obama's Senate seat to the highest bidder, give the proceeds to dyslexic orphan cancer kids, and forever blackmail the seatholder to continue voting for dyslexic orphan cancer kid legislation...
... no jury would have convicted him.
The problem isn't the corruption or the power, it's that it's used to do things people don't think are fair.
I wouldn't really go that far especially because you can make the case that corruption itself corrodes legitimacy and makes it harder for institutions to function. But broadly I do agree that people put in a lot of process to prevent a bad thing when the process prevents a lot more good things, because it just prevents things.
The problem is not being able to do the action, it's choosing stupid actions.
I mean, it's mostly meant to draw a stark contrast, not make a perfectly defensible slogan, but yeah, I think we're mostly agreed.
Corruption does indeed corrode legitimacy; my main personal complaint is just that the open-air or "soft" corruption that the plebes associate with Citizens United and "mOnEy iN PoLiTiCs!!1" distracts them from the core facts that (1) money is in many ways a measure of power, and (2) politics is the exercise in distributing power, so (3) it's impossible to truly eradicate money from politics.
Rather, as you say, the big problem with it is that it makes politicians do things we don't want them to do. Which is a problem with _the_democratic_feedback_loop_, NOT with money nor politics in themselves.
Now I'm envisioning a galaxy brain EA argument here, just swap out dyslexic orphan cancer kids for mosquito nets abroad or whatever cause they feel is most important to them.
Yeah, but he wasn't. And to be a little fair to him, the automobile was truly transformational in the 1920s and Moses was considered a hero for all of the building he did early on. It was only after it was far too late that everyone realized he had destroyed the urban landscape (and set a model for cities worldwide to do likewise).
On the left, we like to envision an army of Jaime Lerners wielding absolute power to design green cities like Curitiba. In reality, the examples of individuals using that much power for "good" pale in comparison to those using it for bad. And it's why, as messy as it is and how often we have to take half a loaf, I'd much rather live in a democracy of incremental progress than gamble on a savior.
Your "incremental progress" is actually no progress, high costs, and slow crumbling, for one. As I said elsewhere, in the 50 years since this mode of public engagement and permitting/regulation was adopted we've gone from "housing construction outpacing growth and allocating more space for all, grid growth making electricity cheap and universally accessible, and building four successive generations of world-beating transportation and communications infrastructure" to "nowhere near enough housing for all driving prices up unsustainably, the grid falling apart at the seams and promising to completely fail the challenges of decarbonization, and transportation infrastructure barely being held together with duct tape and baling wire if not abandoned entirely."
For another, you decry Moses for being wrong. What about the folks who built the trans-continental railway system, NYC's transit rail and subways, our civil aviation infrastructure, or the interstate?
When you enable the state to do these things, it sometimes gets the decisions wrong, yes, but more often than not it produces things people need and want. Barring it from doing either makes it less democratic by denying any government the chance to articulate a vision for the citizenry *and* causes the whole exercise of local and regional governance to be little more than a farce for public consumption.
If the Mayor and City Council of Philadelphia are not permitted to fix our roads, improve transit, invest in our parks, facilitate the building of both for-profit and low-income housing, improve the design of our roads and bike paths, which are all things the current system makes basically impossible... then what the hell are they there for? The only substantive issue within their remit is public safety, everything else is theater. Just ask Helen Gym's "jobs guarantee"!
I don't disagree with any of this! We clearly don't currently have incremental progress; our government is set up to block progress and not to enable it. That's not what a properly functioning democracy should look like! The other examples you provided were the results of bills passed in Congress through negotiation, and much of the progress made in the US was during the first part of the 20th century where Congress worked to get things done. Now they've figured out how to gum up the works and slow everything down, and nobody's found a good way out of it.
My argument with Moses is that concentrating too much power in the hands of one individual is going to lead to undesired outcomes more often than not. By the early 1950s it was obvious that urban freeways were a huge mistake, yet we continued to build them in NY and all over the world, for that matter. We've now reoriented our society in such a car-centric direction that we can't even imagine life otherwise. We can't even pass congestion pricing!
My only real gripe with Strong Towns is that it’s gotten a bunch of pig-ignorant layfolk to blow their load every time someone uses the phrase “traffic calming.”
Which leads to stupid expectations about the ability of engineering and reconstruction to enhance safety, instead of enforcement.
Other than that I’m pretty much an urbanist so mostly in line with the goals. I’ve only ever read the blog stuff, not the book, so can’t speak to whatever relevant messaging you might be referencing?
>I'd much rather live in a democracy of incremental progress than gamble on a savior.
I don't think this tradeoff actually exists, currently, nor do I think it really describes Moses either.
Governments do good things, they do bad things, the question is whether or not adding a process encourages good or bad, or if there's a relation there at all. If you'd polled everyone in NYC they probably would have voted to do a lot of the stuff Moses did; they were just wrong.
To the extent that it does, it seems to me that the multiparty parliamentary democracies make it work the best. They aren’t actually all that radically progressive, the center-right tends to lead just as much as anyone else, but it redirects the right’s energies in the most productive direction, and allows society to fix its mistakes quickly when they happen.
Our rank proceduralism and fetish for vetocracy just breaks the democratic feedback loop.
The real lack of addressing Robert Moses and not just disenfranchisement but marginalization seems a real miss. Even where people could vote they didn’t have a voice equal to their size in the coalition.
But there is a third option: giving that power to a multimember elected body. For instance, parliament in the UK can ram through that high speed rail project but aren't totally unaccountable.
Indeed, I think you could even argue that figures like Moses are a result of the lack of sufficient legislative power in the united states. I mean, he was never elected but he had power because we have a federal system (hence need for multistate entities like MTA which empower mayors who can make appointments) and because congress has ceded most of it's discretion to executive agencies and the money flows through Washington.
I haven't read The Power Broker, but AIUI Moses isolated himself from accountability to any elected official. That's a really easy place to draw the line, and it's the one Matt just drew in this piece: upper-middle class citizens should have a voice too through a ballot box that will change government policy.
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).
A bit of a tangent, but I'm curious whether I'm alone here. The right to protest is critical to maintaining a free society, but protests creep me out, including ones advocating positions I favor.
On a gut level, they always feel fascistic to me: agitating crowds and amplifying their emotional experience for political ends is scary, even when directed against authoritarian and illiberal threats. A context of intense social pressure and highly pitched emotion seems dedicated to short-circuiting our best cognitive tools for making decisions, so even though I recognize that protests are necessary (even good in some cases), I can't stand them.
Well-functioning democracy is about responsiveness to the will of the people, either by the current electeds trying to keep their job or by new electeds that win because they took the popular stance. A response requires stimulus and protests are very valid, effective stimulus. Popular demands of "Do this or we'll elect someone who will!" is indeed what democracy in action looks like.
Yes. Exactly. That was a profoundly incorrect assertion of his. Sometimes looking for contrarian views can backfire. The common sense idea is there because it’s just correct…
It's definitely more of a mushy historical impression than a strictly rigorous mutual exclusivity, that basically any time an empowered, charismatic leader of a technocratically efficient, high capacity state simply takes the majoritarian will of the people and runs with it, it tends to go to really incredibly bad places. It's essentially fascistic.
Now there's another layer, where all three sentiments kind of oppose a single pole of like pluralism and individual rights that muddies the waters, but I do think there's something to the idea that you really need the three things here, that is the polity, the deep state and the political leadership to operate somewhat in tension with each other for a sustainable liberal equilibrium. I don't think you can truly maximally empower all without inviting some kind of collapse.
Fair enough. I agree with your self-criticism that it's more vibes than rigorous theory.
It's something I'd file into the, "Dynamics That Are Real And Do Happen, But Are Only Microcosmic And Shouldn't Be Mistaken For Universal Principles" folder.
If only Jonathan Freaking Haidt had such a folder.
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'm not really in the business of writing horror stories and don't think what happened in Cambridge fits that. I definitely don't think the *process* followed in the Cambridge controversy was good, whereby different, relatively elite interest groups try to capture municipal bodies narrowly concerned with land use regulation to advance their broader agendas that are mostly unrelated to land use. But I think the good *result* is that Harvard built its facility, wound up doing its research, and complied with a municipal statute passed by a democratically-elected Cambridge City Council that, as I understand it, mostly ratified the same set of biocontainment protocols as the NIH and that has been mostly effective in terms of what it was intended to do. I do think it's symptomatic of a broader, problematic devolution of regulatory authority in US governance away from responsible, suitable institutions and towards less responsible, less suitable ones, a process that has been accelerated by increasingly thin and under-thought appeals to the democratic representativeness of manifestly undemocratic bodies, which I took away as a major point of Matt's post and why I wrote my comment. Certainly, sometimes bad processes can effect good results, though that wasn't really my point.
Sorry if that reply was a bit twittery. While I agree that the building got built fine and they get to do their research, I think it exemplifies what's wrong with this approach in that it didn't seem to actually result in much (if any) substantive change in outcome (Harvard was likely going to have to meet NIH standards no matter what since they want grant money) but what it did do is impose a bunch of process that no doubt wasted a bunch of time and money.
So I'm not sure we disagree too much (though I might be less sympathetic to greater restrictions on genetic engineering) but I took the point of the article to be largely about the fact that there is a proliferation of process that doesn't necessarily change things but drives up cost.
Yeah, I don't think we disagree much. I assume the process probably did increase the cost of the building and that's not good. But I do think research labs that work with organisms that pose a biosecurity hazard, genetically modified or not, should have serious containment standards and those standards should be defined and regulated by a responsible (preferably federal) government authority. At the time, there was no such regulatory framework for the proposed facility--the general moratorium on research on recombinant DNA had ended and the NIH hadn't yet codified the Asilomar recommendations for federally-funded research--so the Cambridge municipal government wound up being the only possible regulator and they ended up doing what other parties should have already done. That's kind of a great outcome, all things considered.
"though I might be less sympathetic to greater restrictions on genetic engineering"
There are very few restrictions on genetic engineering in the United States, then and now, so I'm not sure what you mean by this.
Re: genetic engineering I was responding to the fact that it was a regulation that only targeted genetically modified organisms and not a general rule on safety for biosecurity hazards (and it seemed clear the reg was motivated by a hostility to such technology not just a desire to step in and offer sensible regs in the absence of federal regulations). And, while it was good for the NIH to formulate more specific rules on safety for genetic modification I don't see there being any benefit to having the city of Cambridge do so. They simply don't have the capability to do anything like enforcement or to check up on this sort of thing and they aren't reviewing the lab grants.
Besides, I bet at that time they could have just asked Harvard for an assurance they intended to follow the voluntary Asilomar recommendations and gotten a yes which would have had as much or more force as a Cambridge regulation in practice.
Your first point seems to be one you may have arrived at as a result of analyzing a now fifty year record of the risks associated with research on genetically modified organisms. That's good and smart and to be applauded, and it should guide contemporary regulation. But no one had that record to examine at the time, which was one of the main reasons that the leading figures in molecular biology, including many of the Harvard faculty who wanted the lab built, convened the Asilomar conference. Part of the purpose of Asilomar was to discuss potential unique risks for an emergent technology, including what were thought to be potential risks at the time that have not proven to be actual risks, and to provide a set of protocols to mitigate those risks, both for the public and to manage the liability of researchers.
Regarding the second, NIH's rules only govern federally funded research. The Asilomar recommendations, as codified by NIH, don't bind private for-profit labs, which, of course, many of the people involved in the debate knew would be on the way next and what I expect the municipal statute helped to address. But, agreed, this is the kind of regulation that shouldn't be left to a municipal body.
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.
I doubt that Matt is in favor of eliminating NEPA review all together. I think he just wants it to be a more reasonable process with a goal that is to outline specific environmental impacts rather than preempting lawsuits. Average page length for a NEPA review in 1970 was around 26 pages. It's grown 39 pages a year since then. That's bonkers.
"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."
Creating the EPA helped. Requiring NEPA-style approval _from the EPA_ instead of judges would have helped, and projects still wouldn't be slowed by random citizens with enough money to fund a lawsuit. (Now, requiring approval from agency bureaucrats risks isolating these decisions too much from future democratically-elected Congresses, so maybe you take a leaf from the Administrative Procedure Act's book and only give the EPA power to halt a project for a Congressional term, or some such. But the point remains, that ombudsperson agencies are better than adversarial litigation.)
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!)
So, at least for NEPA, you can. There are usually meetings, but there's always (for an EIS, at least) a public comment period where you can send in letters/emails.
Yes, but the in-person meetings are going to end up impressed in the minds of the decision-makers a lot more than the most eloquent text. So you need to remove them to stop giving attendees an unfair advantage.
Based on my experience, almost certainly not. It maybe gives you a small advantage in that the decisionmaker will actually hear what you're saying (as they don't generally read all the comments, leaving that to the expert in whatever your comment is about) but what you'll actually get is a pat 'thank you for your comment, please write it down so we can consider it in finalizing the NEPA process.' Now, what they can do is (frankly, like public comment as very few people actually file public comments besides signing form letters sent to them by pressure groups they agree with) give a impression of what the local community wants. And that will have some effect on the decisionmakers, but so will public comments.
If you do manage to catch their attention (which I've literally never seen) they'll ask the same experts who would respond to your written comment what's going on and then listen to them, so it doesn't actually change things.
What public meetings actually do is give people a chance to vent and give agencies a chance to address some common misconceptions and try to shape comments to actually reflect the project as it's proposed and a responsibility to respond to the comment in a satisfactory way.
Kind of, but I think it's clear that Matt expects everyone to get a vote and for the system to ensure majority winner-take-all outcomes. Whereas I think many Republicans would be comfortable with returning to a time when only landowners could vote.
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?
So the problem is, that as the plaintiffs in Juliana discovered, it's almost impossible to get courts to order things to actually be built. They can stop things, they can integrate things, they can order money payments, but no court order is going to say 'build a solar farm here and a connecting line here and integrate it into the power system, then take this coal power plant off line.'
If your goal is to change how things are run, or shut something down, or stop a project, the courts (as currently structured) may be able to help you. If your goal is a radical reshaping of the economy and physical environment, they can't (and you wouldn't want them to! Judges are not engineers, or urban planners. They have no relevant expertise and are at least at the federal level, unelected quasi-dictators in their own realms).
The closest they've come to success is some noise about a 'fundamental right to an environment capable of supporting human life/flourishing' which the executive branch would then be violating and be told to stop that...somehow.
But besides that argument being destined to lose at the Supreme Court, it's also...stupid? Climate change won't render the US uninhabitable, it will slow future growth (in the US, in poorer countries, the effects will be significantly worse). That's a victory that leads to defeat, even if they ever succeed. Nor does it actually tell the executive what to do, or give them any money to do it!
Nor does it address conflicts of interests like, say, dams providing carbon-free power, but being bad for fish...
You could probably get a court to order a coal power plant to stop operation though, on the grounds of harm done and harm ongoing. And a court might take account of the fact that a lack of electricity would be harmful, so they might stay that stop-order until replacement renewable capacity could be built, provided it was done so as fast as reasonably practicable (in the court's judgement). Though Juliana might set a different precedent, of course.
So, you could try that, but that generally the federal government doesn't build power plants (with some exceptions for nuclear and hydropower), so what's really at stake is the approvals of another power plant and since power is (within certain limits fungible) no specific power plant is 'replacement' for the previous one, so what does it mean to be built as fast as possible? No, what you've got there is a recipe for the court to appoint itself energy czar, which it doesn't want to do.
What it will do is set a timeframe it thinks is reasonable and order the place shut down for violation of something. Okay, now it's replaced by a natural gas plant which spins up production, which is better, but not super. Except, shoot, there's litigation over that. Is it part of this action? Or an independent case? The company says it's specifically to replace this, so they should be part of your action, but the locals want it in district court in their area?
But also...why is the judge shutting down this coal plant? Are coal plants inherently illegal? On what basis?
Obviously the law varies from place-to-place, but you'd essentially be arguing that whether through a direct air-quality mechanism or a less-direct environmental change mechanism, ongoing operation of the power plant (especially coal, but potentially oil, gas, maybe even nuclear) is causing harm to people that it's the court's duty to prevent.
'Ongoing' is doing some heavy lifting there, note - the injunction to cease operation would be about future harm, not past harm.
Sure, but at the point when you decide 'there is harm and even though this is a regulated plant, in compliance with federal, state and local law, I as a judge am going to say it has to close and even more, I'll issue an injunction against all coal/gas power plants' you've taken on responsibility for deciding energy policy for the US.
Yes, but the judiciary is currently to the right of the overall public on environmental issues. The Supreme Court is more likely to strike down environmental protections than it is to force the government to be stricter about environmental protections.
If enough progressive judges and Justices are appointed then that could change, but it’s not where we are now.
Interesting, you see that as rolling back while I think much of the public would see that as constraining the EPA from expanding those laws dramatically. To quote the second article:
"The court held that Congress must speak with specificity when it wants to give an agency authority to regulate on an issue of major national significance."
I assume that you put some limit on the ability of the EPA to regulate activities that could impact the environment, so the question becomes where that line should be drawn and whether Congress has to specifically grant the power to regulate that area.
If it were an objective case of the law being right wing, then you’d expect bipartisan groups of Justices to be striking down environmental regulations, instead of having it mostly be just that Republican appointed Justices strike down environmental regulations.
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.
The Supreme court also gave us gay marriage, civil rights for trans people, and expanded speech protections.
Thank you. I know the legend of Citizens United (which I assume is what is being referenced in the 'rich people can spend as muchb as they like' component) has greatly outgrown the facts of the case in people's imaginations, but it's worth mentioning that the government conceded in oral argument that McCain-Feingold could be used to suppress the publication of books.
I think net neutrality is the only issue that has a bigger ratio of "people who are mad about this" / "people who understand this" than Citizens United.
The CU opinion itself is also actually a pretty good one as opinions go—it pretty clearly lays out why, regardless of the normative implications of the ruling itself, it’s a natural corollary of the (much earlier) Buckely v. Valeo decision.
That's the thing, it was wholly consistent with Buckley v. Valeo. You can think that decision was bad too (Stevens certainly did!), but it wasn't some groundshaking change in precedent.
Citizens United was a well chosen test case. The idea that one can’t market a movie criticizing a candidate within 60 days of an election is problematic. And yes, the law was very poorly and broadly drafted.
Of course the SCOTUS could have just issued a narrow ruling saying that the First Amendment protects the right of film makers to make political films and deferred ruling on other forms of political advocacy to future rulings.
It’s hardly absurd to think that popular entertainments like books, theater and movies might enjoy greater first amendment protections than 30 second TV ads.
There could also be a distinction between money losing activities (eg buying ads that aren’t even intended to generate revenues) and activities that are either non-commercial (unpaid writing or speaking) or undertaken for a profit (publishing, movie distribution).
Fair minded jurists could craft rules to let people express political ideas while discouraging rich people from paying to amplify their message.
By rich people do you include owners of newspapers, magazines, and broadcasting entities? If not, why not? I stand with the jurist who said no means no.
The Sulzberger family controls the NYTimes through super-majority voting shares. They are rich and they quite definitely express political ideas.
Media moguls will inevitably have outsized influence. There will always be someone making editorial decisions and that person will have cultural power in line with their platform’s reach.
The question, in my mind, is how much influence rich amateurs should be able to buy. The fact that editorial decisions are an inevitable expression of power does not mean that everyone with nine figures should be able to rent a megaphone come election time.
And they often own for-profit enterprises, whereas Citizens United is a non-profit organization.
The other side of the issue of not putting out a movie “criticizing” a candidate within 60 days of an election is that the US protects freedom of speech even when that speech is false and defamatory, if the subject is a political candidate. Allowing such unlimited “criticism” has brought us to a point where most people regard most political candidates as hopelessly dishonest and corrupt, which is one of the things that makes it so hard to have a functioning representative democracy.
I still am in awe that there wasn't anyone that concurred in the judgment by saying that the restriction of Hillary: The Movie was clearly an as-applied First Amendment violation, while declining to answer the broader facial challenges immediately. My guess has been that Stevens, who along with Byron White back in the day when Buckley v. Valeo was decided, was one of the justices thought pretty much any regulation in this regard could fly, and he was passionately able to keep the other three dissenters in dissent instead in concurrence in the judgment. We'll see if I'm right or wrong when Stevens's papers from that term get released.
Eh, the SCOTUS gutted Civil Rights legislation & constitutional amendments post-Civil War. The damage they did there fighting the democratic branches outweighs basically everything.
Given the process for appointing justices the SCOTUS is now basically a permanent anti-democratic institution. Both parties see using the courts as a primary tool, as Matt explained, for passing the agenda they can't get through the elected branches.
This is bad on multiple fronts. First, it reduces pressure to actually reform the non-democratic elected branches (Senate). Second, democratic accountability is a good in and of itself. Third, there isn't much reason to think government via SCOTUS will lead to better outcomes (even if you don't place much value on democracy), instead it will work to enact the preferences of the highly educated conservatives/libertarians with GOP SCOTUS (war on New Deal) and preferences of the highly educated liberals with DEM SCOTUS (if we ever get one).
Do you think gay marriage would have been legalized anyway through the legislative process even without the court ruling?
eventually but not right away. Same for similarly great rulings like Bostok and Janus.
Maybe but only because of the non-democratic Senate. The solution isn't government by the non-democratic SCOTUS/civil litigation but destroying the non-democratic Senate.
I think 2022 should make people's senate model adjust a bit, by 2015 Gay marriage is a 60-40 issue according to most opinion polling. I'm skeptical it'd take us longer than Germany, which is also a democracy.
That is a very serious and realistic idea that's certainly likely to happen.
Much more serious and realistic than government via the completely non-democratic courts.
Heh, I imagine there aren't many people with you in the Venn diagram overlap that think both Bostock and Janus are great.
Two justices joined both (Gorsuch and Roberts) but Bostock, Janus, *and* Obergefell is a lot harder
To state my priors, I think strong judicial review is popular with people who place low priority if any on democracy (meaning, policy should be set by elected officials).
I think you're wrong that not many people liked all three. Those three cases are all compatible with a form of libertarianism that has appeal in both parties. A lot of highly educated Americans really like Civil Rights and dislike labor unions.
*raises hand*
10 years later, and you really think congress is de facto getting more likely to have legalized gay marriage or any other anti-gay discrimination laws instead? They can't even manage to legalize abortion, let alone the variety of other ways people should have the liberty to make their own families, as they choose.
If the supreme court is so forward thinking, let's see what happens with this Creative 303 v Elenis ruling.
Creative 303 v Elenis is a complicated case between artistic freedom and public accomodation laws that could have unintended consequences if Creative 303 loses. I don't envy the court on threading the needle here.
Reading the summary you posted below on FirstThings I think:
1) The web designer, like the baker, is in the wrong here.
2) If I had to decide narrowly what to do in this one case I'd be inclined to say the web designer should not do wedding announcements at all if she must discriminate against couples like mine.
3) I don't know how to draw a clean line here - what is "right" on a case-by-case basis isn't always able to make a clean ruling.
You're really going to repeat the rhetoric of "artistic freedom" of a commercial service, and the vague and spooky "unintended consequences" line of if this business is allowed to discriminate against gay marriage in a hypothetical injunction?
If it's really such a hard needle to thread, what artistic choices are restricted in a gay marriage?
And if there's unintended consequences to this ruling, how do you know all of these unintended consequences to the negative outweigh the unintended consequences to the positive?
Not in every state and not so fast. In the meantime a significant minority of Americans were denied basic rights. Obergefell was a landmark ruling to be celebrated. It made a very tangible very dramatic very positive impact.
The big obstacle to this was one-party states and the entrenchment of the Bush II era hostility to same-sex marriage through state-level constitutional amendments. It's an interesting question what role judicial review would have in an ideal constitutional system (I think the answer is "not none" but probably a lot less than what it has now) but in the US system it's a corrective for other constitutional defects too.
My mind immediately jumps to the ERA here
Yes. It was already in a number of states.
I think this needs to come with the huge caveat that most cases that come to the Court are about economics not social issues (is this regulation constitutional, rights of labor unions, is this environmental law about protecting watersheds constitutional to pick a recent example). Most are about pretty arcane issues that don’t necessarily have any real partisan aspect to them (at least not directly) and so are often decided 9-0 or a split that cuts across usual partisan divides on the court. But in general yes, the Supreme Court has been pretty profoundly conservative in its more economics based decisions.
I’ve beaten this drum many times but the Federalist society project is much more about Lochner than it is about Roe. Also, just further indicates that the Op-Ed Alito wrote in WSJ is comically absurd. It’s like he’s trying to gaslight us that the only issues that come to the court are front page social issues and that Paul Singer had no direct interest in any court cases which is just manifestly false.
If anything, when you consider the number of rulings about intellectual property, the supreme court has not given us expanded free speech protections.
I'm not remotely a progressive. But either you have an organ empowered to enforce the Constitution or you don't have a Constitution. I get that for some this is a feature rather than a bug, but not for me.
There are several other countries that don't have judicial review, they don't all look like lawless hellscapes to me?
https://en.wikipedia.org/wiki/Judicial_review#By_country
The Netherlands is the only country that I noticed on that list of no judicial review for which I have a favorable mental association with their governance (In some cases I just don't know - is Vietnam well governed?)
The Netherlands is in the EU - does it have defacto judicial review from EU membership? (At least for EU laws)
Or did you mean some column there other than the "no judicial review" column?
My mind is drawn to the court case "State of the Netherlands v. Urgenda Foundation" where a court effectively forced the Dutch government to meet a specific carbon reduction target, as an interpretation of much more broad national and EU laws regarding "a clean environment", "human rights" etc.
It struck me as pretty extreme judicial activism, even by American standards.
I guess the government could have repealed those laws, but that doesn't seem very likely/practical, not to mention the EU laws also cited by the court case.
My conclusion is that even in countries that may not have judicial review in the sense of blatantly striking down laws passed by the elected representatives, courts often still have a large role in setting government policy.
All of Europe is subject to the EU Court of Human Rights, which is not reflected in your link- their judicial review is super-national instead. Even Britain's still subject to the court, just because they're afraid of how angry the EU would get if they decided to ditch it
It’s a little more complicated than that. As just one example, the Good Friday Agreement requires that the European Convention on Human Rights (the treaty that creates and empowers the Court of Human Rights) to be part of the law of Northern Ireland. It’s not just that the EU would be mad.
Strong constitutional law review is justifiable if amending the constitution was much easier. If you could pass an amendment to the constitution with 55% of the house vote I wouldn't have any issues. But you can't. Instead you need basically 90% consensus.
Hi, genuinely curious: why the negative statement of identity? Perhaps I’m missing something, but your statement stands, to my thinking, quite well on its own.
"I hope progressives will see judicial review is generally at odds with effective governance." In the comment I replied to.
I'm not trying to change that commenter's mind. Progressives have never particularly cared about the Constitution, seeing it as an obstacle rather than a lodestone. Rather, everyone else.
That’s not true--during the era when the judiciary was mostly appointed by Democrats, there was great respect for the Constitution and the courts among progressives. The Constitution has features that appeal to liberals and others that appeal to conservatives, and people who claim to believe in the Constitution usually have a very selective reading of it, or great faith in the current judiciary being on their side.
Why can’t Congress enforce the constitution?
Congress is most concerned with their reelections a few years down the line.
SCOTUS is one of the ways we are a constitutional republic rather than a pure democracy, which I see as a very good thing.
Because that's what the executive branch is for?
Yaser Hamdi would like a word about that...
Because one of the key things the Constitution does is limit the power of Congress. Those limits would be basically worthless if Congress was the one who was responsible for deciding whether they mattered in any given situation.
“…they ruled that the National Recovery Act overstepped Congressional authority”
They ruled correctly. And perhaps one day soon we’ll get the Supreme Court to rectify that and return to a more proper understanding of the Commerce Clause.
And let's not forget Dred Scott
>Now that Roe is gone, I hope progressives will see judicial review is generally at odds with effective governance<
I long have.
We can't jettison judicial review, I think, in a polity that maintains separate, coequal branches (and eschews legislative supremacy). But we might consider a supermajority requirement for judges to strike down or alter congressional enactments. This in not unknown in America at the state level, and would also be in keeping with Marbury v. Madison,, which was a 4-2 decision.
The branches are not coequal in terms of their formal "hardball" power under the structure of the Constitution; that is a myth, although it may be in the interest of some to repeat it, to the point that it has taken on a life of its own and become a certain practical reality.
If you read the Constitution with eye towards which branch has the formal last word on any given issue, their power pretty reliably tracks the order in which they appear in the document, and that's no accident: Article 1-Congress, the most democratically chosen branch, has the power to unilaterally remove from office any member of the other two branches, and so has the final say on everything if push comes to shove. Article 2-the President, has first pick on choosing members of the judiciary, but subject ultimately to what Congress wants, as with legislation. Article 3-the unelected, life-tenured judiciary, is last and least democratic, and as much as possible really should try to leave the policymaking to the elected branches and see itself as the umpire or referee with no policy preference other than the being the institution tasked with enforcing the structural design and rules of the road of our government.
People don't scoff at the very idea of an impartial basketball referee, as the article earlier this week illustrated, even the perfect impartiality is not possible. Why should the expectation and aspiration be different when it comes to other kinds of judging?
I'd say that the reason the Court has accrued such power is that the written Constitution is so incredibly difficult to amend, and so dated in the context of a modern society with instant communication, near-instant movement of people and goods, and impossibly monolithic cultural and social trends, that the Court has become the vehicle through which each coalition attempts to informally change it.
That's a problem, or at least a potential problem. The document has served us well, yes, but that is in part because the Court has just fundamentally changed the way in which it's understood many, many times over the last two and a half centuries. I am not sure if that will continue to serve well in the future, though a close reading of the history of our party politics suggests that the current era is not really an outlier when viewed against our whole history, only against the history of the last fifty years (itself an outlier really).
I'm not sure *how* to appropriately respond to the Court's current role, but understanding why it has that role is important.
Full agreement. SCOTUS power really depends on the impossibility of Constitutional Amendments.
The impossibility of amending our constitution is under-appreciated. Excluding the Bill of Rights, whose passage was required for the Constitution to be adopted, we've only amended 17 times in over 200 yrs.
Of those 17, 4 were non-partisan, procedural changes (12, 20, 25, 27). 3 only passed because the Civil War (13-15).
We've only passed 1 amendment in the last 50 years.
The bar to amending the constitution is just to high. Which is why, as you said, neither party even bothers with constitutional amendments anymore. It is just understood that the way you amend the constitution is for the Supreme Court.
Conservatives genuinely hated Roe in a way racial progressives hated the civil rights cases (19th Century). Both sides knew amending was impossible and the only way was getting a new court.
Long-term, the US has to find a way to make our institutions more democratic rather than rely on workarounds.
Beyond the outsized power of the Court due to difficulty of amendment there is the Elephant- in- the -Room problem of the unamendable part of the Constitution-namely the last sentence of Article V (equal suffrage of states in the Senate), which dooms us to a very undemocratic reality for the forseable future.
You realize that Democrats have held the Senate more than Republicans have over the last 20 years and have held the only 60 seat majority during that time period?
I do often think that Democratic supporters can get too apocalyptic on their future Senate prospects.
Yes- the structural advantage of rural states in the Senate suffrage is finite. For many decades, small vs. large and rural vs. urban divides in US politics did not allign with partisan interests- but now they clearly do, and this makes the structural advantage of small states in the Senate more salient. But I agree, it's not everything.
I always argue that this clause still allows for the abolition of the Senate: equal suffrage still is maintained, that equal suffrage just happens to be zero.
And although my Googling skills are eluding me on this right now, I seem to recall someone asking Antonin Scalia what would happen if an amendment created unequal suffrage in the Senate, and that he said that if it got that far (obviously highly unlikely), there's no way that SCOTUS could practically stand in the way.
So, your argument is that, rather than changing the senate state suffrage ratio, the senate could just be-abolished, or turned into a House of Lords powerless body? How would/could that even happen within the structure mandated by the Constitution?
Mostly disagreed. The nature of party coalitions has proven so changeable that attempts by one side or the other to ensure a permanent advantage based on the selective admission and division of states have been futile.
Either that will again be the case, or the Democrats will briefly take a trifecta after a long period of GOP misrule and end up admitting DC, PR, North, South, and Central California, and Pacifica to address the issue.
I expect the former outcome, not the latter.
Completely agree they're not in reality coequal by design. I was repeating it in the "it's become reality" sense you indicate.
I personally wouldn't have a problem with jettisoning US-style judicial review altogether if it came to it. On the other hand, it's hard not be impressed (and even moved) by Justice Marshall words on the topic. How, indeed, is a Congress run amok to be checked? So I could live with merely curbing or regulating this power.
I think the use of J.R. has become too frequent. It should be a rare occurrence. If anything, my sense is judicial review is a "natural" place for a supermajority requirement, in keeping with other examples of the highest "powers" held by the other branches (impeachment, veto override, foreign treaties, etc). It's the ultimate power: a nondemocratic tribunal deciding it knows better than Congress on grave matters of public policy. It should be exercised, uh, judiciously.
Very good post. And SCOTUS should exercise it judiciously for another reason: self-interest.
The risk of a constitutional breakdown is under-appreciated. If SCOTUS tries to block Congress/POTUS on a high salience/high popularity issue they really could run into just being ignored.
That hasn't happened in the modern era. But if it does happen I think it will result in SCOTUS being ignored everywhere.
Yep, and I think there's a reasonable chance in the near future that a Democratic administration may feel that it has no choice but to ignore SCOTUS.
Lifetime appointments are a major part of the problem. If you get an ideological court, given modern life expectancy, it can have power for decades.
A big thing that helped the Supreme Court maintain popularity in the 20th Century was this:
1. GOP POTUS(s) made most appointments; &
2. GOP appointed Justices were much more likely to either drift left (Souter) or just be members of the liberal coalition (Brennan/Blackmun to a much lesser extent Stevens).
That isn't true anymore. After Souter the GOP really fixed point 1. They don't allow their POTUS to appoint secret liberals or justices who will drift).
Given that we have a Court well to the right of the median voter. And going forward I expect the court will always be out of alignment with median voter.
I think your read on the priority of power among the branches is correct, but I'm having a tough time discerning which of Congress or the President is more democratically chosen.
The House of Representatives was originally the only directly elected part of the federal apparatus, note. Not sure how to compare the old Senate system to the idea of an electoral college.
wouldn’t legislative supremacy be better? i keep thinking the uk has done better relative to its resource base and geographic location than we have, and that this may be because their institutions are a bit better
The UK has been subject to the EU Court of Human Rights for like 50 or 60 years now. It still is to this day, even post-Brexit!
Maybe. But both Canada and Australia maintain forms of judicial review, and they seem to have done ok (Australia's is stronger IIRC because of the lack of a carve out). I should add: I'd like to see root and branch form of the Supreme Court beyond the supermajority idea, so, the less politicized court we'd have if it were up to me would be a more dependably reasonable wielder of this awesome power.
I would take pure, UK-style legislative supremacy over our current status quo, though, yes.
Might also be worthwhile to hear what Israelis think about judicial review right now.
My loose impression is that the Canadian Supreme Court is activist in ways that would not be tolerated in the American political system, e.g., it forced the government to legalize euthanasia.
I dunno. Bush vs. Gore was a pretty activist decision. So was Heller. So was Roe. So was Obergefell. So was Dobbs. And these decisions were "tolerated" in the US, because, what's the alternative? The black robes are like a government unto themselves.
Also, Canada's constitution provides the famous "Notwithstanding Clause" carve-out.
Your last sentence is really key. As this current SCOTUS churns on, lefties are going to see judicial review much more negatively, particularly the younger ones.
But I agree (I think?) with Wendigo and Jasper in that judicial review is a needed tool if we're going to have a Constitution that limits governments from restricting certain rights. It's a tool, and it can be wielded for good or evil.
What would have changed if Florida had recounted the votes?
Nothing, but don't believe that was clear at the time and it wasn't great to have such a partisan 5/4 split.
It was 7-2 that what the Florida Court did was wrong. 5-2 on the remedy.
You mean 5-4 on the remedy... to stop counting votes. Not 5-2.
Yeah. Breyer and Souter thought FL screwed up (which it did).
I'm back on my "Marbury v. Madison was wrongly decided" BS
in 12th grade government class I was immediately struck by how unsympathetic John Marshall's ruling seemed to me. a total invented fiction that created powers *ex nihilo* but which was very cleverly deployed so that its opponents couldn't politically challenge it is an absurd thing to celebrate
Gordon Wood's "Empire of Liberty" has a whole chapter about how Judicial Review didn't emerge ex nihilo out of that one ruling. Rather, many implied it from the text of Constitution from the very beginning, and over the decades between then and Marbury, courts gradually amassed powers that looked increasingly like judicial review until Marbury struck the final blow.
Marbury was clearly right on judicial review, whether or not it was good policy. The idea that it made up judicial review is a widespread myth that is also obviously wrong--look at Article III itself ("arising under this Constitution") or Federalist 78. Marbury wasn't even the first judicial review case. The real controversy is between "judicial supremacist" and "departmentalist" theories understandings of judicial review.
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."
Matt, like most people, has strong normative commitments about how democracy should work, and thinks that constitutionally-prescribed outcomes are legitimate to the extent that they conform to those norms. Legitimacy is a question of justice, not law, and despite what some Inspector Javert-like procedure fetishists think, those aren’t the same thing.
Agreed. Had the maneuvering after the 2020 election led to state legislatures disregarding their state's actual voting in favor of giving their electoral votes to Trump, I would have considered that illegitimate, even had all the maneuvers been technically legal. In that scenario, I would have considered it a "legal coup" and would have taken part and supported street protests, even up to and including violent action directed at those leading the coup. And I say that as someone who strongly opposed the looting and street violence that took place during the summer of 2020.
There is an important difference between "legal" and "legitimate"; and woe to those who don't understand that distinction and go too far in leveraging legal loopholes to achieve their goals. The electoral college is already stretching that distinction to the limit (and some might argue beyond). Anything further than that and there will be a break.
Great, let's empower every individual in the nation to form their own personal opinion of legitimacy and take violent action based on what they come up with
Agreed Wigan about the dangers here. I don't say this stuff lightly. But I think it's important to understand that there are tensions here, and if the legal bubble is pushed too far, it will pop.
To take your example above, I'm not happy about the electoral college, nor the way the Senate empowers the voters of small states at the expense of big ones.
Having said that, as unhappy as I was about Trump's election in 2016 with far less votes than Hillary, I accepted it as legitimate. And would have accepted his reelection in 2020 if he had gotten just enough votes in Georgia/Pennsylvania/Nevada to win those states. And while I'm not happy about the unrepresentative nature of the Senate leading to the current composition of the Supreme Court, I'm not going to violently protest it either.
Having said that, we're not too far from the point where these systems will go too far in empowering minority rule. And if the current system keeps moving in that direction, it will break.
Fair enough, but the example MY invokes -- minority rule by 49% -- hardly seems horrific. Any coalition with that much support would begin more popular than Biden is today.
Also, as long as there is a next election, politicians will care deeply about public opinion.
State legislatures overturning clear majorities might, however, justify armed resistance.
Unless we want to live in an Athenian democracy where every issue is decided by a 50%+1 vote, there will always be ‘undemocratic’ results. Sometimes it’s a bug, other times a feature
You make this sound extremist, when in reality in such a situation it is precisely what the Founding Fathers expected of us and what they did themselves!
If the FF had rebelled because they were 10% of the voting population but only receiving 9% of the vote then I would consider them the extremists.
But what we're talking about is a scenario where all the Democrats have to do is either a) get 1-2% more of the popular vote in an era where 15% of prior voters switch votes and almost 10% are new voters b) figure out how to be competitive in the states they were competitive in 10 years ago.
This isn't oppression.
Forgive me, but... Did you actually read the post to which you replied at all?
I agree that the current electoral system, while stupid, is not oppressive and the challenges it poses can be met within the system.
The post to which you replied outlined a very, very different scenario.
fwiw:
the Founders had a "a decent respect for the opinion of mankind", if the Declaration of Independence is any indication. And their case for rebellion was made on the basis of notions they believed were valid for all ("we hold these *truths* to be self-evident"), not "their own personal opinion of legitimacy".
The Founders effectively dressed up the opinion of perhaps 40% of the elite of the Colonies as "self-evident truths" and rebelled on that basis.
There is very little evidence that it was an overwhelming majority opinion at the time. It was only afterward, when they'd won and their conception of people's right to representation and legal protections was the norm that the "truths" enumerated in the Declaration of Independence truly became near-universal in first the US and eventually much of the world.
It's profoundly ahistorical to imagine that the Founders were speaking in a language everyone understood and agreed with *while they were doing it.*
The “truths” in the Declaration of Independence were value judgments which were widely disputed at the time that Jefferson wrote it. They’re only self-evident within the ideological framework of Enlightenment liberalism, which was incredibly controversial in the 1770s.
You present this as a reductio ad absurdism, but the sort of activity you’re describing is what creates democracies in the first place, and the implicit threat of violent rebellion is a big part of what keeps them alive. If you like democracy, you have to accept that law-breaking political violence is the correct course of action at least some of the time.
What violence would remedy the situation?
If the GOP got 30% of the 2-way vote, I guess I could imagine some sort of violent response where the 70% would make sure they weren't trampled on. But 49%? 48% and the win coming from EC votes within the previously agreed and established and accepted framework we've all been operating within? How could violence achieve anything other than inviting like responses?
I actually agree with you about violent rebellion not being a pragmatic course of action in the situation that you describe— if you can’t win, you’ll just be getting a bunch of people killed.
But I’ll bite the bullet and say that widespread civil disobedience and nonviolent protest would be a reasonable response to the situation you describe. And I don’t think that the EC is “something we all agreed to”— it’s a weird legacy procedural artifact imposed on us by long-dead people and maintained by a faction that actively wants minority rule.
I mean...they already are empowered to do that if they want? They'll just be arrested and jailed for it, as we saw after January 6th.
No he didn't, but calling a government illegitimate pretty clearly lays the groundwork for others to be violent. And as importantly, others are mentioning violence in this same thread
The big difference is whether the rules are well-known before the fact (the EC) or not (how many Americans who follow politics closely knew legislatures could send different EC delegations than their voters had said, prior to Dec 2020?)
The EC is legitimate in a way the “Trump coup” was not
In some universe where the below** was done but was somehow "technically legal," I might agree. I don't, however, see how that could happen and be legal, and it's not what happens in the electoral college/Senate rep context Matt was referencing.
I understand the distinction you and Matty Y and et al are making and in some scenarios would agree. The specific scenario from my O.G. comment and from Matty's piece, however, is not one of those.
**"state legislatures disregarding their state's actual voting in favor of giving their electoral votes to Trump"
So a 49% popular vote win in the presidential level would be "illegitimate" Would a 49.9% popular vote win be illegitimate?
I don’t know where Matt draws the line here.
Personally, I don’t think there are hard and fast cutoffs. The general principal that I’d use to make these judgments is that elected governments should reflect the overall preferences of their citizenry as well as they can within reasonable feasibility constraints. This grows from a some of the considerations that make democracy a good form of government (majority popular support makes governing and maintaining power easier; having to keep it gives rulers a good performance incentive.)
So, in a political system with just two major viable parties, the one that wins more votes generally has more real mandate to govern— the 2016 election’s outcome pretty obviously fails this basic test. If you have a system with more viable contenders, you probably need to implement mechanisms like proportional representation or ranked choice voting to prevent weird outcomes where you have a ruling government that only 33% of voters cast a ballot for.
I agree bigger margins "mean" something like a bigger mandate, but maybe where we disagree here is that I don't think the difference between 47 and 52 and 50.01 is really all that important.
And I think that difference is really important. Does 50%+1 have some kind of magical power? No. It’s an edge case, where the “majority” candidate is only trivially better at satisfying voters preferences than the losing candidate.
It’s like raising or lowering the drinking age by one day. The effect of a small change would be trivial, but there has to be a line somewhere.
Personally I think a legal regime can be illegitimate and also that a 49% trifecta for republicans right now would NOT be per se illegitimate.
Ok, but if legitimacy is a question of justice, why are we bothering with constitutional government, or representative democracy? Are those things part of justice?
Constitutional government and representative democracy are tools and coordinating mechanisms which we can collectively use to implement a normative vision of governance and resolve conflicts. On balance, I think they’re good things, but particular constitutions and election mechanisms are a means to an end, and we should be willing to revise and replace them when they’re not fulfilling their normative function.
The question of course is what ends and who decides them...which democracy answers by saying a majority, and a constitutional democracy says a majority but some things require a super majority.
Yeah, this is another part of why democracy is good— it’s a mechanism for aggregating preferences.
Yes, because tyranny of the minority is worse than tyranny of the majority. Its just important for the majority to recognize that we/they are all in the minority about something...
I'm confused. What is the end? Is it justice? Is it "a normative vision of governance"? Are those the same thing?
Yes. Most people have some kind of principle-informed view on how governments should work that’s not just “whatever the current system is,” judge particular governments and systems as legitimate based on whether or not they fulfill their principles, and, when given the opportunity, modify systems to better reflect their vision.
Really? To me, it seems obvious that "normative visions of governance" are not ipso facto just, constitutional, or democratic. Can't norms be racist? Can't they be imperialist? Can't they be authoritarian?
Legitimacy is a pretty loaded concept, guessing Matt might be channeling Weber here:
https://plato.stanford.edu/entries/legitimacy/#:~:text=According%20to%20Weber%2C%20that%20a,virtue%20of%20which%20persons%20exercising
Yeah, I think that sentence was just ill-advised and not really thought through by Matt. I give him a pass on it though.
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.
"Meaningfully" is a pretty powerful weasel word here. I could easily say there's not a lot of evidence the public "meaningfully" wants explicit carbon dioxide proliferation either. Once upon a time, you could have said that there's not a lot of evidence that the public "meaningfully" wants unleaded paints and gasolines too.
If anything, if the public doesn't have to have some sort of definite position on these things, that's a kind of freedom our duly elected politicians and their horde of experts can provide us.
What exactly are you trying to prove here with your framing?
My point is that many will accept false oversimplifications to avoid cognitive dissonance.
You saw this a lot back when people talked about the Green New Deal. The idea that, actually, the righteous proleteriat wants decarbonization *and also* a whole suite of social spending programs and the only thing holding that back was entrenched greedy special interests was never true, but people felt inclined to pretend that way.
Do you know who generally has decent politics on carbon reduction? Really rich people (look at who donates to climate groups). Do you know who would hate a $0.01 increase in the gas tax? Boring normie voters who like driving pickup trucks.
Dayen suggests a conflict theory model of the world where more democracy, more public input, more unions, etc. would also mean better policies in every way, and that's simply not true. The world is more complicated than that.
What are you even talking about? Where are you getting this image the Green New Deal was about the righteous proletariat? Or this idea that how people donate their money is the most definite indication of their political beliefs? There's "oversimplifications" and then there's overcomplication where you emphasize select and disparate media narratives and representations. I still don't know why you would want to do that? It doesn't lead to consensus or conclusion.
You know who doesn't donate to climate groups? Boring normie voters who drive whatever vehicle's cheap and convenient to get their kids to school, and then get to their wage work job.
But they'd still like food to stay cheap because there's no water shortages, oil shocks, or forest fires.
>But they'd still like food to stay cheap because there's no water shortages, oil shocks, or forest fires.
It really sounds like you don't think there's a tradeoff between climate policy and costs faced by normies. Taking steps to reduce carbon (which is good) will make daily life more expensive for us in the near term. Pretending otherwise is just falling prey to cognitive dissonance.
If you're just going to out of hand dismiss something as "falling prey to cognitive dissonance," then you're not really serious about the myriad ways to reduce carbon emissions, while not increasing costs for normies.
I, too, like to have and eat cake.
“…the myriad ways to reduce carbon emissions, while not increasing costs for normies.”
Your perpetual motion machine ideas intrigue me, and I’d like to subscribe to your newsletter.
The cost of removing lead from paint and fuel is tiny compared with the cost of decarbonisation. Moreover, the benefits from removing lead accrue to the nation that does these things, whereas there is a free rider problem with decarbonisation.
A 'meaningful' decarbonisation project would involve massive taxes on fossil fuels, vastly greater taxation to subsidise zero carbon energy, and general reduction in living standards. In reality, the public are only willing to tolerate a much smaller dose of that.
This is a really bizarre position. I don't really know where to begin.
But first, if it's really about "cost," the combined cost of not decarbonising is higher than the costs of further CO2 proliferation. The taxes and living standards thing is just not at all accurate. We have the technology to subsidize zero carbon energy in a way that will reduce costs over time.
But you do bring up a good point, voters tend to be chiefly concerned with convenience and intolerance for inconvenience, than any particular policy issue or scientific metric.
I’d say meaningful being what the public considers a high priority and willing to make sacrifices to achieve. Within the Democratic Party, it probably is. With the general public, I don’t think it is. Just an example I googled
https://www.pewresearch.org/politics/2023/06/21/inflation-health-costs-partisan-cooperation-among-the-nations-top-problems/
I think people want cleaner energy and cleaner vehicles. Just like people want less litter and more public parks.
I don’t know what the average person’s willingness to pay for these things are.
The problem is that people are willing to pay, roughly, zero dollars even if they say they want those things. Cleaner vehicles are different because after all they get a brand new car so there's obvious upside.
The good news is, the state can pay for those thing.
In so many ways, the state is designed to address those kind of coordination problems.
And since people never notice or complain about tax increases, it's a very easy solution!
I love it when people say obviously separable things are separable.
And even they do meaningfully want a drawback from fossil fuels, pairing it with public input can allow NIMBYism to seep in. "I support windmills, but not where I can see them from my beautiful/solemn view!"
"The goals of domestic supply chains, good jobs, carbon reduction, and public input are inseparable."
I guess I'll have to read the piece but this is so obviously wrong I don't think it's worth the time.
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 am trying to interpret that as Matt's intent. His assertion that the US was not a democracy (or democratic republic) before desegregation is a really bad one. It was a flawed democracy but it isn't remotely a mystery why FDR would understand America as having a fundamentally different system of government than most other places, and certainly different than the other major belligerents in WW2, including our own allies. There's a weird sort of American ethnocentrism that isn't necessarily bad to the extent it forces constructive criticism of ourselves but that can also be almost hilariously oblivious to world history.
Yeah that was a profoundly ahistorical and frankly lazy and stupid assertion of MY. “Arsenal of democracy” is precisely correct at a time when the us armed the allies against the effing Nazis and Stalin the next alternative in a war for literal world domination. He really didn’t seem to have taken the time with this piece.
Folks don't actually realize how rare republican governments that weren't just dictatorships were in 1941. It was basically us and France (for a quarter of the people over whom she ruled), and if we're being charitable about a quarter of Latin America.
Britain, at home, kinda sorta as well.
"Republican" is unhelpful here because it lets you exclude Belgium, the Netherlands, the Nordic countries, and British dominions like Canada, Australia, and New Zealand (in 1941 several of those countries were under Nazi occupation but so was France). On the same ground you probably want to count Czechoslovakia though it fell under Nazi occupation earlier. Probably others in Europe I'm not thinking of right now
Alright, representative governments. Still astonishingly rare compared to today. You've named literally every single one.
40% the globe's population lived in colonial regimes, 40% in dictatorships like the USSR, Brazil, Argentina, or the ROC, some of which had representative trappings. Some of the remaining 20% was basically free, most especially the US, France, the UK metropole and White Dominions, and some partially so, including a smattering of Latin American nations and white folks in South Africa.
No disagreement with "astonishingly rare compared to today."
The fact that all those places were under nazi occupation is precisely the point. The us was ultimately the only power that could liberate them.
I'm really not sure what the disagreement here is supposed to be because I certainly don't think anyone is saying that the US/British side in World War II wasn't relatively much better for democracy than the Nazis
Oh come on. What the hell else do you call a country with an authoritarian one-party sub-state freely operating within it?
You'd call it a flawed democracy that falls well short of modern expectations. But you're also making my point for me. It isn't defending Jim Crow to say that even with it the United States was objectively a democratic outlier, considering most of the world still lived under imperialism and the most important parts of it were falling to or threatened by actual fascism and Stalinist communism.
I think you all are missing Matt's point. He's not saying that the US wasn't meaningfully more democratic than many other countries. He's saying that "democracy" such as it was in the US coexisted with really grave violations of democratic principles that meant that reform efforts had to resort to extra-electoral processes like courts to make progress--but at the same time (because of the importance of "democracy" to US civic culture) this wasn't conceptualized as being necessary on account of the *undemocratic* features of the United States. To put Matt's point another way, it's very easy to say that the reason judicial review made sense in the Jim Crow context is that large portions of the public were excluded from political participation, but instead of saying that, American constitutional theory has been obsessed with justifying judicial review conceived of as anti-majoritarian (the so-called "countermajoritarian difficulty"). Matt is saying that's a mistake that misunderstands how Jim Crow worked. He's not saying that America is bad or worse than other countries or what have you.
That’s a silly point though. Judicial review is *always* crucial to prevent elected officials from disenfranchising part of the citizenry or otherwise excessively curbing civil and human rights. Jim Crow is merely one notorious case. The constitution wasn’t framed with one specific aberration in mind but to create a state with a good “immune system” to fight any aberration and to provide nonviolent remedies should they occur. That hasn’t changed since human nature hasn’t and will not change. Power tends to corrupt and needs to be kept in check. You’re welcome to propose a robust alternative to judicial review but to suggest it’s not needed because representatives are elected is worse than sophomoric.
I hear you, and I think there's certainly a more than fair inquiry into just how vexing the legacy of slavery and Jim Crow has been for our legal system. But I also don't know that the specific constitutional questions addessed by judicial review are really the right parallel for the problem of subjecting day to day decision making to endless litigation. That we do that is itself a public policy decision made by elected officials in statutes like NEPA, and is wholly different than the kinds of constitutional issues at the heart of civil rights era court holdings.
Now, Matt isn't a lawyer, and I understand that this distinction may not be one in the forefront of his mind. But these really are two different things and I don't think conflating them helps understand how we got here. There's nothing about SCOTUS' ability to hold a law as unconstitutional for, say, violating the 1st Amendment, that also requires every decision about where to build a power plant or road to go through years of reviews and lawsuits.
Even those states, containing the minority of the us population , were far more democratic than most of the world- it was run by elected officials voted in by a large portion of the population. Every person in that state moreover has recourse to the courts. That’s a far better civil rights situation than what all of Europe was experiencing at the time as well as most other places in the world.
Black Mississippians didn't have recourse to those courts.
A herrenvolk democracy that enforces itself with racial terrorism and violence may indeed provide many of the benefits of democracy to its own herrenvolk. That doesn't make it any less authoritarian, and doesn't erase the stain that authoritarianism leaves on its fundamental legitimacy.
I'd like a source about lack of recourse to courts. Regardless, you are just wrong, and frankly somewhat fanatical, in refusing to see the dramatic difference between a regime based on a franchise of about half the population, has a separation of powers etc.* and one were the word of literally one man is law. in 1941 black people in Mississippi had more freedoms than 99% of the people in most parts of continental Europe. Of course that's one of the darkest periods in history, and is not to say the situation in Mississippi was acceptable (to say the least), but FDR's statement needs to be understood in its historical context, hence the comparison is apt.
(*and that's even ignoring the fact that Mississippi was not a sovereign state but under the federal us which was more democratic still)
Many authoritarian states also have elections in which officials are voted in by large portions of the population.
not in 1941.
Oh I took DT to be taking about how community meetings empowering busybodies with free time was the actual original form of ‘democracy’ (or at least that’s what my Greek reader taught me in 9th grade)
And I think in terms of this essay the tradition of prog love for judges is super important but maybe good to mention this more basic (and ultimately silly) reason people felt community meetings were ‘more democratic’
Exactly, community meetings empower busy bodies and activists. And that’s fine as far as it goes, but you can't mistake that for some sort of representative sample or expression of the broader public.
Agree but would argue that it’s not actually fine. In my experience as a city planner, politicians consciously or unconsciously seem to extrapolate from the people who show up (and of course not too many people show up to argue in favor of a project*).
I think the missing piece here is the political will to take information gathered from disclosure statutes and (to some extent) public meetings and use that information to decide what kind of tradeoffs are necessary for a policy that will get us where we need to go. Unfortunately few politicians now seem willing or able to make these kinds of decisions and defend them.
* Showing up to testify in favor of a project is a really good way to help your community!
I think the truth is in between. Politicians (correctly) understand that people who are using their time to show up to these things are super voters. They are often the basic political unit you can organize around. You won’t rob them of their outsized influence entirely. That’s why the anticipated legal challenges and extra community input solely for the legal challenge is really the core of the discussion. How much more motivated should local pols be by these super voters than, for example, the primary system already makes them? Should their be many additional legal incentives to check in even more?
It would help if local governments weren't mostly set up to minimize turnout while also being swamped by national partisan patterns.
I know when we talk about this everyone is imagining raucous NIMBY gatherings or school board protests but I have always imagined most meetings going more like this one:
https://www.nbcmiami.com/news/national-international/watch-florida-dominatrix-group-demands-250000-dungeon-from-local-city-council/2936460/
It’s a rich tapestry to be sure
People who show up to community meetings tend to have 1) strong feelings on a subject and 2) enough time on their hands to sit through a community meeting. That is disproportionately older, affluent, empty-nesters.
And these kind of people who are liberal tend to the “liberal NIMBY” types: the ones who have John Muir Syndrome bad, and think that too many icky humans clutter up their pristine landscape (themselves excepted of course!). That was a lot of what went wrong with California in the 70’s. Blame the Sierra Club (only partly kidding). And with this group there is a heavy emphasis on preserving their cities or towns in amber, just the way they were in the 70’s - charming! Quirky! Unique! Cozy! - and definitely not cluttered up with newcomers. (But why can’t our own precious progeny afford to live here?)
Maybe so, and that is also a good point. Of course I am not as convinced that judicial review is quite as anti-democratic as Matt is. NEPA is a statute, not something judges made up. And if elected officials can't bear to occasionally hear from their constituents they should probably be in a different line of work.
Expand it to “liberal democracy” and see that they don’t. Democracy isn’t just about voting every couple of years and letting your representatives do whatever they want with zero accountability mechanisms, as MY seems to suggest. That’s an elementary school understanding and he should know better.
Please enlighten the class, then. Since you seem to have the complete theory of democracy.
Democracy is a government in which the supreme power is vested in the people. The people of the United States decided to become a republic, and so it remains today. The United States is therefore both a democracy and a republic. And it’s really dumb to say things like, “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.”
Do you not see minority rule as illegitimate?
I do. The situation described is not minority rule.
49% is a minority, Ken.
I didn’t realize the great state of Florida’s education system had gotten THAT bad.
I’m not mentioning anything new or particularly original. Democracy is and always has been fundamentally about equality under the law (“equal rights”). Elections are but one- crucial- mechanism in ensuring that, but they are hardly sufficient. Checks and balances, free communications and free press, the ability of citizens to assemble and organize - all these are crucial too.
You're conflating democracy and liberalism. They often go together but aren't intrinsically connected. Democracy is the best form of government to ensure liberalism, but democracies are not inherently liberal. India is a democracy, but it is not very liberal.
Thats like saying “you’re conflating democracy and freedom”. They are tow sides of the same coin! India is on the way to stop being a democracy altogether. It’s a “backsliding democracy”. And I’m working with thinking about democracy that goes back to ancient Athens (“isonomia”). To be clear - before I’m yelled at- Athenian democracy is far from meeting the standards of modern democracy (it was a slave society with few rights for women etc) but the connection between popular sovereignty, legal equality, free speech, and mechanisms for transparency and accountability go back all the way to the “cradle” of democracy; imo for deep practical reasons. In the long term you cannot have one without the others.
There are two very obvious truths here, and it seems like you’re getting wrapped around the axel on one of them just because Matt didn’t pay enough lip service to it.
The first is that America was incontrovertibly a flawed democracy during the Jim Crow era.
The second is that America was incontrovertibly the bastion of global democracy during WWII, which overlapped with the late Jim Crow era.
Your whole line of complaint is basically the same thing that Twitter libs do when they “call out” some book about one minority for “erasing” some other minority. Which is something you yourself frequently complain about here.
So, if you’re not telling us anything new, why get so upset about it?
No. MY's whole piece is based on a strawman version of democracy ("majoritarian rule via elections"). It leads him to make one ludicrous claim after another, like thinking the constitutional order is superfluous (as he strongly implies) or that FDR was somehow wrong or blind or misleading in calling the US an arsenal of democracy during ww2. He just wrote a really bad piece today and for that I call him out, like many of us here, you included if memory serves, do whenever they think that's the case.
And I'm calling your opinion out for what is really coming across as a bad tantrum. Sorry, not trying to be my usual asshole self here or anything, but I'm just calling it how I see it.
Isn't the main accountability mechanism "the next election"?
What’s to guarantee that they are free and fair? That they happen at all? I feel strange explaining these basics. You can’t have free and fair elections without freedom of press and thought and speech and assembly, without the opposition being free to organize and field candidates. Without some mechanism to make sure the elections themselves are being held and the votes counted in an honest and accurate manner.
Elections are one -necessary but insufficient- *means* maintain a democratic regime, they are a means to end but they are not what democracy *is*.
If they aren’t free and fair it isn’t democracy. But also I don’t know who you’re disagreeing with--Matt obviously didn’t dismiss the importance of freedom of speech. It’s like saying “you claim democracy is about elections, but what about making sure the polling places are well-ventilated? It’s not democracy if we can’t breathe!” Yeah, no one disputes that. It doesn’t change the point that the community veto points Matt is talking about are awful.
You continue to not read me carefully. I asked “what’s the guarantee” that they are free and fair? The point is that elections alone are insufficient, because you need giarantee they are free and fair and continue to happen. In the US the courts have been and continue to be the main guarantor for that. MY’s problems is that he doesn’t seem to realize that. In fact he doesn’t seem to realize democracy needs separation of powers, checks and balances, the whole mechanisms to keep it from dying from the inside.
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.
It's an interesting comparison but I don't think it is actually relevant. In either model the elected representative holds power as a result of free and fair elections and is therefore the appropriate person to make the choice rather than whoever shows up at a public meeting.
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.
Fair enough, but why would anyone think the judiciary is somehow more trustworthy?
It's not per se that the judiciary would be more trustworthy if invested with discretion but that it requires alot less trust in good judgement to ask someone if something complied with a long list of formal requirements than to trust they'll do the reasonable thing.
The worry isn't that someone is going to just go completely rogue and ignore the rules but that if the rules just say: make a reasonable deciscion in the public interest their idea of the public interest might diverge substantially from yours or get shaded by inappropriate influences. The judiciary isn't asked to decide what choice is in the public interest, only to check if a long list of rules were followed minimizing (but not eliminating) the effect those biases/values have on the outcome.
It's the same thing as with government procurement rules. Because we are worried about government officials doling out contracts as political or personal favors (and we feel their own interests are less aligned with wise use of funds) we impose more extensive procedures to be followed for bidding on government contracts than private buisnesses do. This naturally ends up landing in court more often.
They aren't, but importantly the judiciary is mostly about stopping things, not causing them.
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 am basically going to take the unpopular position and say that there will never be a situation or an era in which we don’t need a government which can ram a cut-and-cover subway through a crowded neighborhood, force highway widening in populated areas, and string transmission lines through pretty forests.
We’ll have to lean on the fact that we’re no longer all white supremacist assholes to avoid mistakes like I-676 lopping Chinatown in half.
You mean bury transmission lines through forests so they don't catch on fire? And force highway widening to accommodate BRT? If so then I agree... but others may not. By what mechanism do we determine that this constitutes the greater good? And who has standing to protest and/or sue? It's a legitimately tricky question with nowhere near a perfect answer.
Not a perfect answer, but as close as we can get: Voters have standing to elect different representatives.
This is the ideal world that I wish to live in. It hinges on a government that is biased towards progress and not stagnation (far more likely in a parliamentary system rather than our head of state/two houses of legislature split at state and federal levels). It also hinges on a press corps that covers these sorts of issues with the proper diligence and for people to pay attention to these issues enough to elect other representatives. I'm not optimistic.
Drain the sea before repairing the seawall, why don't you?
I’d go with “the elected government decides that and gets tossed out on its ear next election if it fucks enough of those decisions up” and “no one at all has standing to sue for any reason except unlawful/uncompensated takings”.
I could argue that widening a highway a quarter mile from my house increases the air pollution enough to decrease my quality of life and lower my property value. I could also argue that failure to provide adequate train service a similar distance from my house forces more people to drive and has similar negative effects. Does that constitute an uncompensated taking? Our current system allows people like me to sue over stuff like this or at least to demand reviews.
That is precisely the point.
Your preferences should not be weighted in any way over those of everyone else. You should have *NO* legal or procedural means to attempt to inflict your will or preferences on any project over and above voting for the officials who scope and approve it.
I do not give a flying fuck if you prefer a BRT system over extra travel lanes, or people in NE Philadelphia want the government to bore a tunnel for our proposed subway extensions instead of cut-and-cover, or if someone thinks that random second- or third-growth forest in New England is such a unique ecosystem that it warrants stopping all regional power transmission projects.
They should have the opportunity to express that view in the ballot box and, if they lose, be asked, and then forced if need be, to sit the fuck down and shut the fuck up while the bulldozers come in.
Modernity is completely and utterly incompatible with a vision of the world that allows every single person the standing to scream "STOP!" at will if they just apply a dribble of money or time.
This basically seems like a recipe for uncompensated takings of exactly the sort posted in JWG's first sentence, though. Putative progress generates negative externalities. Legislating away the right to sue for said externalities is.....an uncompensated taking.
>>Your preferences should not be weighted in any way over those of everyone else.
So you're saying we should proportionalize the Senate, right?
You and I are in agreement here, but as I stated above, I'd want to see this paired with a better working government in general (which I'm not optimistic about seeing in my lifetime).
I'll die on this hill, the problem with Moses is not that he had a lot of power, it's that he used the power to build freeways instead of trains. In the same way that Jane Jacobs was bad for being a NIMBY but good for opposing a freeway. As Matt has previously said, there's no substitute for being right about everything all the time.
If Moses had been a modern Tokyo or Amsterdam-style urbanist instead of a racist acolyte of the automobile, he would be a legendary hero.
My own twist on this is that while freeways can sometimes be bad (particularly in the manner that Moses often designed them), what's worse are stroads that try to replicate the high speed of freeways without the safety of controlled access, and we're getting way too many stroads over freeways built these days.
Reminds me of something I've often pointed out to the "[no] money in politics!" crowd:
If Rod Blagojevich had been caught on tape saying that he was going to sell Obama's Senate seat to the highest bidder, give the proceeds to dyslexic orphan cancer kids, and forever blackmail the seatholder to continue voting for dyslexic orphan cancer kid legislation...
... no jury would have convicted him.
The problem isn't the corruption or the power, it's that it's used to do things people don't think are fair.
I wouldn't really go that far especially because you can make the case that corruption itself corrodes legitimacy and makes it harder for institutions to function. But broadly I do agree that people put in a lot of process to prevent a bad thing when the process prevents a lot more good things, because it just prevents things.
The problem is not being able to do the action, it's choosing stupid actions.
I mean, it's mostly meant to draw a stark contrast, not make a perfectly defensible slogan, but yeah, I think we're mostly agreed.
Corruption does indeed corrode legitimacy; my main personal complaint is just that the open-air or "soft" corruption that the plebes associate with Citizens United and "mOnEy iN PoLiTiCs!!1" distracts them from the core facts that (1) money is in many ways a measure of power, and (2) politics is the exercise in distributing power, so (3) it's impossible to truly eradicate money from politics.
Rather, as you say, the big problem with it is that it makes politicians do things we don't want them to do. Which is a problem with _the_democratic_feedback_loop_, NOT with money nor politics in themselves.
Now I'm envisioning a galaxy brain EA argument here, just swap out dyslexic orphan cancer kids for mosquito nets abroad or whatever cause they feel is most important to them.
Yeah, but he wasn't. And to be a little fair to him, the automobile was truly transformational in the 1920s and Moses was considered a hero for all of the building he did early on. It was only after it was far too late that everyone realized he had destroyed the urban landscape (and set a model for cities worldwide to do likewise).
On the left, we like to envision an army of Jaime Lerners wielding absolute power to design green cities like Curitiba. In reality, the examples of individuals using that much power for "good" pale in comparison to those using it for bad. And it's why, as messy as it is and how often we have to take half a loaf, I'd much rather live in a democracy of incremental progress than gamble on a savior.
Honestly: Pshh.
Your "incremental progress" is actually no progress, high costs, and slow crumbling, for one. As I said elsewhere, in the 50 years since this mode of public engagement and permitting/regulation was adopted we've gone from "housing construction outpacing growth and allocating more space for all, grid growth making electricity cheap and universally accessible, and building four successive generations of world-beating transportation and communications infrastructure" to "nowhere near enough housing for all driving prices up unsustainably, the grid falling apart at the seams and promising to completely fail the challenges of decarbonization, and transportation infrastructure barely being held together with duct tape and baling wire if not abandoned entirely."
For another, you decry Moses for being wrong. What about the folks who built the trans-continental railway system, NYC's transit rail and subways, our civil aviation infrastructure, or the interstate?
When you enable the state to do these things, it sometimes gets the decisions wrong, yes, but more often than not it produces things people need and want. Barring it from doing either makes it less democratic by denying any government the chance to articulate a vision for the citizenry *and* causes the whole exercise of local and regional governance to be little more than a farce for public consumption.
If the Mayor and City Council of Philadelphia are not permitted to fix our roads, improve transit, invest in our parks, facilitate the building of both for-profit and low-income housing, improve the design of our roads and bike paths, which are all things the current system makes basically impossible... then what the hell are they there for? The only substantive issue within their remit is public safety, everything else is theater. Just ask Helen Gym's "jobs guarantee"!
I don't disagree with any of this! We clearly don't currently have incremental progress; our government is set up to block progress and not to enable it. That's not what a properly functioning democracy should look like! The other examples you provided were the results of bills passed in Congress through negotiation, and much of the progress made in the US was during the first part of the 20th century where Congress worked to get things done. Now they've figured out how to gum up the works and slow everything down, and nobody's found a good way out of it.
My argument with Moses is that concentrating too much power in the hands of one individual is going to lead to undesired outcomes more often than not. By the early 1950s it was obvious that urban freeways were a huge mistake, yet we continued to build them in NY and all over the world, for that matter. We've now reoriented our society in such a car-centric direction that we can't even imagine life otherwise. We can't even pass congestion pricing!
My only real gripe with Strong Towns is that it’s gotten a bunch of pig-ignorant layfolk to blow their load every time someone uses the phrase “traffic calming.”
Which leads to stupid expectations about the ability of engineering and reconstruction to enhance safety, instead of enforcement.
Other than that I’m pretty much an urbanist so mostly in line with the goals. I’ve only ever read the blog stuff, not the book, so can’t speak to whatever relevant messaging you might be referencing?
Oooo, traffic calming... that’s the stuff...
Keep talking dirty to me, Dave.
>I'd much rather live in a democracy of incremental progress than gamble on a savior.
I don't think this tradeoff actually exists, currently, nor do I think it really describes Moses either.
Governments do good things, they do bad things, the question is whether or not adding a process encourages good or bad, or if there's a relation there at all. If you'd polled everyone in NYC they probably would have voted to do a lot of the stuff Moses did; they were just wrong.
To the extent that it does, it seems to me that the multiparty parliamentary democracies make it work the best. They aren’t actually all that radically progressive, the center-right tends to lead just as much as anyone else, but it redirects the right’s energies in the most productive direction, and allows society to fix its mistakes quickly when they happen.
Our rank proceduralism and fetish for vetocracy just breaks the democratic feedback loop.
The real lack of addressing Robert Moses and not just disenfranchisement but marginalization seems a real miss. Even where people could vote they didn’t have a voice equal to their size in the coalition.
But there is a third option: giving that power to a multimember elected body. For instance, parliament in the UK can ram through that high speed rail project but aren't totally unaccountable.
Indeed, I think you could even argue that figures like Moses are a result of the lack of sufficient legislative power in the united states. I mean, he was never elected but he had power because we have a federal system (hence need for multistate entities like MTA which empower mayors who can make appointments) and because congress has ceded most of it's discretion to executive agencies and the money flows through Washington.
I haven't read The Power Broker, but AIUI Moses isolated himself from accountability to any elected official. That's a really easy place to draw the line, and it's the one Matt just drew in this piece: upper-middle class citizens should have a voice too through a ballot box that will change government policy.
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).
A bit of a tangent, but I'm curious whether I'm alone here. The right to protest is critical to maintaining a free society, but protests creep me out, including ones advocating positions I favor.
On a gut level, they always feel fascistic to me: agitating crowds and amplifying their emotional experience for political ends is scary, even when directed against authoritarian and illiberal threats. A context of intense social pressure and highly pitched emotion seems dedicated to short-circuiting our best cognitive tools for making decisions, so even though I recognize that protests are necessary (even good in some cases), I can't stand them.
+1, Deadpan. For me, I suspect it is a reflection of personality -- some combination of agreeableness and conscientiousness from the Big 5.
Probably extroversion vs introversion too, due to the crowd factor.
For me at least, I love concerts, and I love singing songs I love along with a crowd of people.
It's only when we start chanting about who the bad people are that I get very creeped out.
Interesting! I have been to literally hundreds of protests. I never chant, though -- because that does creep me out.
Well-functioning democracy is about responsiveness to the will of the people, either by the current electeds trying to keep their job or by new electeds that win because they took the popular stance. A response requires stimulus and protests are very valid, effective stimulus. Popular demands of "Do this or we'll elect someone who will!" is indeed what democracy in action looks like.
Yes. Exactly. That was a profoundly incorrect assertion of his. Sometimes looking for contrarian views can backfire. The common sense idea is there because it’s just correct…
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"
Care to elucidate why you think those are at odds?
It's definitely more of a mushy historical impression than a strictly rigorous mutual exclusivity, that basically any time an empowered, charismatic leader of a technocratically efficient, high capacity state simply takes the majoritarian will of the people and runs with it, it tends to go to really incredibly bad places. It's essentially fascistic.
Now there's another layer, where all three sentiments kind of oppose a single pole of like pluralism and individual rights that muddies the waters, but I do think there's something to the idea that you really need the three things here, that is the polity, the deep state and the political leadership to operate somewhat in tension with each other for a sustainable liberal equilibrium. I don't think you can truly maximally empower all without inviting some kind of collapse.
Fair enough. I agree with your self-criticism that it's more vibes than rigorous theory.
It's something I'd file into the, "Dynamics That Are Real And Do Happen, But Are Only Microcosmic And Shouldn't Be Mistaken For Universal Principles" folder.
If only Jonathan Freaking Haidt had such a folder.
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?).
That's a good result? I assumed that was being presented as a horror story till I got to the end.
I'm not really in the business of writing horror stories and don't think what happened in Cambridge fits that. I definitely don't think the *process* followed in the Cambridge controversy was good, whereby different, relatively elite interest groups try to capture municipal bodies narrowly concerned with land use regulation to advance their broader agendas that are mostly unrelated to land use. But I think the good *result* is that Harvard built its facility, wound up doing its research, and complied with a municipal statute passed by a democratically-elected Cambridge City Council that, as I understand it, mostly ratified the same set of biocontainment protocols as the NIH and that has been mostly effective in terms of what it was intended to do. I do think it's symptomatic of a broader, problematic devolution of regulatory authority in US governance away from responsible, suitable institutions and towards less responsible, less suitable ones, a process that has been accelerated by increasingly thin and under-thought appeals to the democratic representativeness of manifestly undemocratic bodies, which I took away as a major point of Matt's post and why I wrote my comment. Certainly, sometimes bad processes can effect good results, though that wasn't really my point.
Sorry if that reply was a bit twittery. While I agree that the building got built fine and they get to do their research, I think it exemplifies what's wrong with this approach in that it didn't seem to actually result in much (if any) substantive change in outcome (Harvard was likely going to have to meet NIH standards no matter what since they want grant money) but what it did do is impose a bunch of process that no doubt wasted a bunch of time and money.
So I'm not sure we disagree too much (though I might be less sympathetic to greater restrictions on genetic engineering) but I took the point of the article to be largely about the fact that there is a proliferation of process that doesn't necessarily change things but drives up cost.
Yeah, I don't think we disagree much. I assume the process probably did increase the cost of the building and that's not good. But I do think research labs that work with organisms that pose a biosecurity hazard, genetically modified or not, should have serious containment standards and those standards should be defined and regulated by a responsible (preferably federal) government authority. At the time, there was no such regulatory framework for the proposed facility--the general moratorium on research on recombinant DNA had ended and the NIH hadn't yet codified the Asilomar recommendations for federally-funded research--so the Cambridge municipal government wound up being the only possible regulator and they ended up doing what other parties should have already done. That's kind of a great outcome, all things considered.
"though I might be less sympathetic to greater restrictions on genetic engineering"
There are very few restrictions on genetic engineering in the United States, then and now, so I'm not sure what you mean by this.
Re: genetic engineering I was responding to the fact that it was a regulation that only targeted genetically modified organisms and not a general rule on safety for biosecurity hazards (and it seemed clear the reg was motivated by a hostility to such technology not just a desire to step in and offer sensible regs in the absence of federal regulations). And, while it was good for the NIH to formulate more specific rules on safety for genetic modification I don't see there being any benefit to having the city of Cambridge do so. They simply don't have the capability to do anything like enforcement or to check up on this sort of thing and they aren't reviewing the lab grants.
Besides, I bet at that time they could have just asked Harvard for an assurance they intended to follow the voluntary Asilomar recommendations and gotten a yes which would have had as much or more force as a Cambridge regulation in practice.
Your first point seems to be one you may have arrived at as a result of analyzing a now fifty year record of the risks associated with research on genetically modified organisms. That's good and smart and to be applauded, and it should guide contemporary regulation. But no one had that record to examine at the time, which was one of the main reasons that the leading figures in molecular biology, including many of the Harvard faculty who wanted the lab built, convened the Asilomar conference. Part of the purpose of Asilomar was to discuss potential unique risks for an emergent technology, including what were thought to be potential risks at the time that have not proven to be actual risks, and to provide a set of protocols to mitigate those risks, both for the public and to manage the liability of researchers.
Regarding the second, NIH's rules only govern federally funded research. The Asilomar recommendations, as codified by NIH, don't bind private for-profit labs, which, of course, many of the people involved in the debate knew would be on the way next and what I expect the municipal statute helped to address. But, agreed, this is the kind of regulation that shouldn't be left to a municipal body.
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.
I doubt that Matt is in favor of eliminating NEPA review all together. I think he just wants it to be a more reasonable process with a goal that is to outline specific environmental impacts rather than preempting lawsuits. Average page length for a NEPA review in 1970 was around 26 pages. It's grown 39 pages a year since then. That's bonkers.
"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."
Creating the EPA helped. Requiring NEPA-style approval _from the EPA_ instead of judges would have helped, and projects still wouldn't be slowed by random citizens with enough money to fund a lawsuit. (Now, requiring approval from agency bureaucrats risks isolating these decisions too much from future democratically-elected Congresses, so maybe you take a leaf from the Administrative Procedure Act's book and only give the EPA power to halt a project for a Congressional term, or some such. But the point remains, that ombudsperson agencies are better than adversarial litigation.)
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!)
So, at least for NEPA, you can. There are usually meetings, but there's always (for an EIS, at least) a public comment period where you can send in letters/emails.
Yes, but the in-person meetings are going to end up impressed in the minds of the decision-makers a lot more than the most eloquent text. So you need to remove them to stop giving attendees an unfair advantage.
Based on my experience, almost certainly not. It maybe gives you a small advantage in that the decisionmaker will actually hear what you're saying (as they don't generally read all the comments, leaving that to the expert in whatever your comment is about) but what you'll actually get is a pat 'thank you for your comment, please write it down so we can consider it in finalizing the NEPA process.' Now, what they can do is (frankly, like public comment as very few people actually file public comments besides signing form letters sent to them by pressure groups they agree with) give a impression of what the local community wants. And that will have some effect on the decisionmakers, but so will public comments.
If you do manage to catch their attention (which I've literally never seen) they'll ask the same experts who would respond to your written comment what's going on and then listen to them, so it doesn't actually change things.
What public meetings actually do is give people a chance to vent and give agencies a chance to address some common misconceptions and try to shape comments to actually reflect the project as it's proposed and a responsibility to respond to the comment in a satisfactory way.
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.”
I always just read it as a way to justify the malapportioned democracy that we have (Senate, Electoral College, gerrymandering).
ok, it's not what I *always* assumed, just what I assumed when I was feeling generous.
And it's good to generally default to feeling generous, as you demonstrate regularly!
Kind of, but I think it's clear that Matt expects everyone to get a vote and for the system to ensure majority winner-take-all outcomes. Whereas I think many Republicans would be comfortable with returning to a time when only landowners could vote.
That's functionally what we have in municipal elections.
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?
So the problem is, that as the plaintiffs in Juliana discovered, it's almost impossible to get courts to order things to actually be built. They can stop things, they can integrate things, they can order money payments, but no court order is going to say 'build a solar farm here and a connecting line here and integrate it into the power system, then take this coal power plant off line.'
If your goal is to change how things are run, or shut something down, or stop a project, the courts (as currently structured) may be able to help you. If your goal is a radical reshaping of the economy and physical environment, they can't (and you wouldn't want them to! Judges are not engineers, or urban planners. They have no relevant expertise and are at least at the federal level, unelected quasi-dictators in their own realms).
The closest they've come to success is some noise about a 'fundamental right to an environment capable of supporting human life/flourishing' which the executive branch would then be violating and be told to stop that...somehow.
But besides that argument being destined to lose at the Supreme Court, it's also...stupid? Climate change won't render the US uninhabitable, it will slow future growth (in the US, in poorer countries, the effects will be significantly worse). That's a victory that leads to defeat, even if they ever succeed. Nor does it actually tell the executive what to do, or give them any money to do it!
Nor does it address conflicts of interests like, say, dams providing carbon-free power, but being bad for fish...
You could probably get a court to order a coal power plant to stop operation though, on the grounds of harm done and harm ongoing. And a court might take account of the fact that a lack of electricity would be harmful, so they might stay that stop-order until replacement renewable capacity could be built, provided it was done so as fast as reasonably practicable (in the court's judgement). Though Juliana might set a different precedent, of course.
So, you could try that, but that generally the federal government doesn't build power plants (with some exceptions for nuclear and hydropower), so what's really at stake is the approvals of another power plant and since power is (within certain limits fungible) no specific power plant is 'replacement' for the previous one, so what does it mean to be built as fast as possible? No, what you've got there is a recipe for the court to appoint itself energy czar, which it doesn't want to do.
What it will do is set a timeframe it thinks is reasonable and order the place shut down for violation of something. Okay, now it's replaced by a natural gas plant which spins up production, which is better, but not super. Except, shoot, there's litigation over that. Is it part of this action? Or an independent case? The company says it's specifically to replace this, so they should be part of your action, but the locals want it in district court in their area?
But also...why is the judge shutting down this coal plant? Are coal plants inherently illegal? On what basis?
Obviously the law varies from place-to-place, but you'd essentially be arguing that whether through a direct air-quality mechanism or a less-direct environmental change mechanism, ongoing operation of the power plant (especially coal, but potentially oil, gas, maybe even nuclear) is causing harm to people that it's the court's duty to prevent.
'Ongoing' is doing some heavy lifting there, note - the injunction to cease operation would be about future harm, not past harm.
Sure, but at the point when you decide 'there is harm and even though this is a regulated plant, in compliance with federal, state and local law, I as a judge am going to say it has to close and even more, I'll issue an injunction against all coal/gas power plants' you've taken on responsibility for deciding energy policy for the US.
Secret judiciary
Yes, but the judiciary is currently to the right of the overall public on environmental issues. The Supreme Court is more likely to strike down environmental protections than it is to force the government to be stricter about environmental protections.
If enough progressive judges and Justices are appointed then that could change, but it’s not where we are now.
Are they to the right of the public on environmental issues?
I think the public is extremely "we like saying we want a good environment, but don't you dare ask us to pay anything for it."
That’s still to the left of the Supreme Court. Rolling back the Clean Air Act and the Clean Water Act is really unpopular.
I hadn't heard that SCOTUS has done that.
https://www.npr.org/2023/05/25/1178150234/supreme-court-epa-clean-water-act
https://apnews.com/article/supreme-court-epa-ruling-2e893673819a1b6c6aa272a5e814f0b0
Interesting, you see that as rolling back while I think much of the public would see that as constraining the EPA from expanding those laws dramatically. To quote the second article:
"The court held that Congress must speak with specificity when it wants to give an agency authority to regulate on an issue of major national significance."
I assume that you put some limit on the ability of the EPA to regulate activities that could impact the environment, so the question becomes where that line should be drawn and whether Congress has to specifically grant the power to regulate that area.
This case could be what Tom is referring to:
https://www.scotusblog.com/case-files/cases/sackett-v-environmental-protection-agency/
Is the judiciary to the right of the public, or is the law to the right of the public?
If it were an objective case of the law being right wing, then you’d expect bipartisan groups of Justices to be striking down environmental regulations, instead of having it mostly be just that Republican appointed Justices strike down environmental regulations.
I would not expect that because judges on the right are far more likely to rule on the law as written.
Biden is currently doing this.
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.
What are you calling "fluid democracy"?