Into the Institutions

Into the Institutions

The left neglects the institutional structures of democracy at its own peril. In his latest book, political theorist Jeremy Waldron offers a welcome corrective.

Political Political Theory: Essays on Institutions
Jeremy Waldron
Harvard University Press, 403 pp.

The rhetoric of revolution is in the air. Democratic socialist Senator Bernie Sanders launched an impressive bid for the Democratic presidential nomination on a call for “political revolution” and, since conceding the nomination to Hillary Clinton, has redirected his campaign into a permanent organization under the same banner. Donald Trump succeeded in his insurgent campaign for the GOP nomination by tapping populist anger against Washington’s corrupt establishment. In Europe, far-right and -left parties have scored eye-opening wins in the United Kingdom, France, Spain, Hungary, and Greece, and threaten to shred the fabric of the European Union and even some of its member states.

But all movements for revolutionary change inevitably confront the challenge of navigating (or disrupting) the institutions in which day-to-day politics is housed. Calls to end austerity, reform immigration, overhaul campaign finance, or correct massive inequality ultimately end up in the legislatures, executives, and courts. Radicals may seek to smash such institutions, but if they gain power, they face the Herculean task of building new ones.

The problem with revolutionary politics, in short, is that it tends to be naïve about political institutions. I can recommend no better corrective than liberal political philosopher Jeremy Waldron, and no better introduction to his thinking than his recently published collection of essays, Political Political Theory.

“This book sprang from the conviction,” Waldron explains, “that the theory of politics needs to devote more attention to structural, constitutional, and institutional issues in politics.”

It is our responsibility as theorists of politics to reflect on a broader array of issues about constitutional structure. I mean traditional, even fuddy-duddy, topics that I worry we have lost sight of . . . federalism and devolution; the choice between a unicameral and a bicameral legislature; sovereignty; the separation of powers; checks and balances; the independence of the judiciary; the principle of loyal opposition; and the rule of law.

To read Waldron is to reawaken ideas that so shape our world that they typically only live in the background of political theory and debate. It is to survey the pantheon of constitutional liberalism—Locke, Montesquieu, Condorcet, Madison, Kant, Mill, et al—to step into their shoes and think hard about bicameralism, bills of rights, and judicial review, and appreciate the enormity of their intellectual and real-world achievements. So thoroughly did the constitutionalist revolution succeed, so much is it a part of our “common sense,” that we have to remind ourselves that this body of thought was once revolutionary—not that long ago, in fact, in the scale of human history. What was radical in previous centuries is today’s humdrum. Why not forgive twenty-first-century political theorists for not being interested in the ideas that animated previous eras?

Waldron repeatedly returns to this question in the course of his essays and offers a dual answer that also explains his admiration for Hannah Arendt and disparagement of Isaiah Berlin, who was himself a dismissive critic of Arendt. First, politics is inseparable from institutions, and so we cannot do political theory adequately without thinking about institutional form. Politics doesn’t take place in a vacuum, where participants debate over abstract norms such as justice. Instead, like sports, it is necessarily structured by rules and occurs in a space (a field, say, or court) that restricts and shapes its possibilities. In a recurring image in Arendt’s writings, “politics needs housing” and “building such housing can be equated with the framing of a constitution.” Too often, political debate fails to take account of institutional questions. To take one of Waldron’s examples, those who are wont to harp on our commitments to rights too rarely consider the question of what institutional form those rights should take: who should be charged with protecting them, how will rights claims be adjudicated, and the like.

Second, theorizing about our own institutions requires first understanding the rationale of their design and operation. As Waldron argues in his chapter on why legislation—lawmaking through representative bodies—is the best form of lawmaking:

We cannot undertake intelligent disparagement or criticism of our actually existing legislative institutions if we do not have a well-thought-through ideal that we can hold up to them for comparison.

Doing so requires a revived understanding of the Enlightenment constitutionalism that shaped our political institutions. Under the influence of figures such as Berlin, however, we have neglected such study in favor of normative theory—perhaps, as Waldron acerbically suggests, because the success of Enlightenment constitutionalism was the chief counterexample to Berlin’s dark foreboding about Enlightenment rationalism and its penchant for perfectionist design.

Waldron’s revivalist project lends a rather drab, conservative cast to his work: To reconstruct a “well-thought-out ideal” of our political institutions often requires deep dives into the canon of Enlightenment constitutionalist thought, to recover the finest pearls from the oyster bed of often tedious texts. Take, for example, his discussion of the wisdom of bicameralism. His argument for what he calls the Principle of Separate Concurrence—the idea that the agreement of a wholly separate legislative body serves as an important check on the integrity of a single legislative body’s enactments—doesn’t stray far from John Stuart Mill’s argument for it, that “a single assembly . . . easily become despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority.” True, perhaps, but quite fuddy-duddy for those more interested in political theory than the history thereof.

Nevertheless, Waldron generates significant political payoffs from applying classic liberal constitutionalist concerns to contemporary politics. Take, for example, his chapter on what democratic accountability requires, with special assists from The Federalist Papers and Locke. Waldron argues for what he calls “agent accountability,” in which an agent is accountable to a principal, in the way that a real estate agent is accountable to a client: although he is empowered to act on a client’s behalf, he owes the client an account of what he is doing on his behalf and the onus of keeping the client informed is on the agent, not the client. Armed with this distinction, Waldron argues that if government officials are truly accountable in a democracy, they owe it to the people to account for what they have been doing—to keep them informed—and not to do so is a form of insolence. In this age of black budgets, state secrets, overclassification, foot-dragging on FOIA requests, and press acquiescence, Waldron’s theorizing has political heft.

A New Zealander who has spent much of his professional life in the United States and Great Britain, Waldron displays a remarkable ability to discuss the internecine practices of one country in a way that’s widely applicable. Take, for example, his chapter on the UK’s concept of loyal opposition, which empowers the losers in an election with an official dissident role in government and acknowledges them as a sort of government in waiting. The United States does this to some extent with the House and Senate minority leaders and committee participations. But in our era of bitter partisanship and public questioning by Republican leaders of the legitimacy of the president and his party—starting at least as far back as former Speaker of the House Newt Gingrich’s mid-1990s strategic recommendations to use language to portray Democrats as not just wrong but “sick,” “corrupt,” and “traitors”—the notion of “loyal opposition” is alien to our politics, to our detriment.

Waldron’s most controversial arguments militate against the idea of “strong judicial review,” the sort we have in the United States, in which courts can refuse to apply a statute that clearly applies to a case, for example when the statute is deemed to violate individual rights. (This contrasts with “weak judicial review,” where courts may scrutinize legislation and request legislative review, but may not refuse to apply it, as in the United Kingdom and New Zealand.) He contends that the practice is democratically illegitimate:

By privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.

He devotes a separate chapter to the most notable case of this phenomenon, the narrow 5-4 Supreme Court decisions to which we have become accustomed. Why should such a slim majority of unelected officials have such power in a democracy?

Here we come to the most interesting, and problematic, part of the book. Waldron has too much faith in legislatures as the ideal institutions for political deliberation for a democracy, where the diversity of the people is represented and their concerns and values are weighed and discharged in a transparent and rational process. (It does little good against Waldron to point to the myriad ways Congress falls short. His argument here is focused on the ideal case, in which we have reasonably well-functioning legislatures and judiciaries.) Even when it comes to settling the heated disagreements our republic may have about individual rights, he thinks that legislatures offer the superior housing for such dispute resolution.

Waldron’s case against judicial review is provocative, but when compared to his pieces on the separation of powers, it is far less persuasive. His argument compares the ways in which legislatures and judiciaries deliberate about the fraught conflicts about individual rights, such as abortion, marriage equality, and hate speech. (Although, let’s face it, if the individual right reflects a small enough minority, it isn’t so fraught for the legislature.) He argues that legislatures do it better:

The reasons that courts tend to give when they are exercising powers of judicial review of legislation are seldom the reasons that would be canvassed in a full deliberative discussion, and the process of searching for, citing, assessing, and comparing the weight of such reasons is quite different for courts than for an ideal political deliberator.

Despite being a law professor, Waldron can get rather caustic about the art of judicial opinionmaking, where judges trade “platitudes,” “cling to their authorizing texts,” and engage in “a rather insulting form of disenfranchisement and a legalistic obfuscation of the moral issues.”

But it’s question-begging to argue that the judiciary legislates less effectively than legislatures. That’s not what the judiciary is supposed to do. As Waldron’s essay on the separation of powers and the rule of law makes clear, we separate the legislative and judicial branches to maintain their integrity as they perform separate functions. The judiciary is supposed to adjudicate individuals’ relations to the laws that the legislature has enacted and, more controversially, whether a law violates an individual’s constitutional rights. If we accept strong judicial review, of course, then the latter may involve nullifying a law—something that sounds legislative.

The question ultimately comes down to whether there is a need for a branch of government to determine whether the law is badly formed and contradicts itself—whether, for example, a law violates the Bill of Rights—and if so, which branch, using what processes, and with what consequences? Who will ensure that “Congress shall make no law . . .”? Surely the answer isn’t Congress, and besides, given Waldron’s thoughts on bicameralism, isn’t there good reason to think that on this question, a separate body should decide?

If I had to finger one source of today’s revolutionary fervor, it would be legislatures. King George was probably more popular among Americans before the Revolutionary War than Congress is today. The approval numbers for the European Parliament are similarly abysmal. Although there are many problems that Waldron would agree are corrupting, such as U.S. campaign finance laws, he could do more to recognize their structural limitations as institutions. In his essay on representative lawmaking, he argues persuasively that the large size of legislatures, “the authority of a large assembly consisting of hundreds of individuals, ranked roughly as equals,” is crucial for representing the diversity of society at large and legislating in their interest.

But the problem is that our assemblies aren’t large enough. Since 1911, the size of the House of Representatives has been capped at 435. Today that amounts approximately to one representative for every 750,000 people—by far the largest ratio among world democracies, save India, although the 751-seat European Parliament has a similarly large ratio of (one per 676,686 people). Germany’s lower house, by contrast, has 630 seats, which amounts to 1 per 129,300 Germans. If the United States maintained such a ratio, the House would have about 2,500 seats, which may sound large, except Madison thought that the United States should have at most one representative per 50,000 people. Over the course of the past century, the House, the most democratic element of our government, has become another Senate, and Europe’s parliament is following the same model. If they are to serve the institutional role they are supposed to play under liberal constitutionalist thinking—if they are to succeed politically—they need to become more democratic.

David V. Johnson is a writer and editor in Berkeley, California.